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2016-133-Minutes for Meeting February 29,2016 Recorded 3/23/2016
DESCHUTES COUNTY OFFICIAL RECORDS cJ 2016.133 NANCY BLANKENSHIP, COUNTY CLERK COMMISSIONERS' JOURNAL 03/23/2016 08:03:29 AM II VIII Z 16-13 Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS. WEDNESDAY, FEBRUARY 29, 2016 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend 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; Cynthia Smidt and Will Groves, Community Development; and approximately fifty other citizens. 1. CALL TO ORDER Chair Alan Unger called the meeting to order at 10:00 a.m. 2. PLEDGE OF ALLEGIANCE 3. CITIZEN INPUT None was offered. Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 1 of 21 ACTION ITEMS 4. Before the Board were Deliberations on Tumalo Irrigation District Lot of Record. Cynthia Smidt said there are two procedural issues with this case. One is regarding new evidence, but this was done on the record. The appellant submitted documents on paper and by e-mail. Central Oregon Landwatch is agreeable to removing the new evidence, as is the appellant. Therefore, the information to be considered would be only what was received in written form. Chair Unger asked about timeliness regarding submission into the record. He was advised the written version has no new evidence. It was noted that this is all the Board will consider. Ms. Smidt explained that a transcript of the hearing being appealed was to be provided, but interpretation of Code in this regard is in question. This was supposed to be received no later than five days prior to deliberations, which staff feels was January 11. The applicant feels this should be have been done by January 5. Staff does not see any damage here, since all parties were able to review the transcript anyway. Commissioner DeBone asked if this would set policy for other situations. Commissioner Baney asked how this has been done in the past. Ms. Smidt replied that this has not been an issue. It was staff's interpretation at the time that January 11 was appropriate. The applicant had sufficient time for final argument in any case. Chair Unger would like to have better clarity, but he does not want the Board to lose standing. He is inclined to deliberate this now. Commissioner Baney asked if there was enough time given for both parties. Ms. Smidt observed that the deliberations could be extended to another date to allow more time, but both parties have had sufficient time. David Doyle said the transcript issue is not jurisdictional, and the Board could allow for further time for the parties. It is a Code interpretation, but the Board has latitude. Ms. Smidt stated that the applicant did not request any additional time. Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 2 of 21 Commissioner Baney is concerned about how this might affect other decisions in the future. Chair Unger noted that the issue has to do with whether it is on the record or de novo. He wondered how much difference this actually makes if there is no new evidence. He also is concerned about setting precedence. Commissioner Baney would like to have the five days' additional buffer. Chair Unger said that they could ask the applicant if there is any harm with this. Mr. Doyle stated they could make a finding that the five-day issue does not apply to anything except this case. They would have to reopen the record otherwise. If no one feels there was prejudice, the decision could be made now or at a future date. Chair Unger asked if anyone in the audience feels there is a problem with proceeding. (There was no response regarding an objection or prejudice.) Mr. Doyle said they could proceed with the situation pointed out in the findings. Ms. Smidt gave an overview of the case. The general record of the lot of record Ordinance is in relation to whether a lot was created outside of the normal land and zoning requirements at the time. Under most circumstances, it has to be a legal lot of record. This has evolved over time in part due to decisions regarding interpretation of County Code, policies and practices. There has to be compliance to Code at the time it was transferred. Transactions have to include details on recordings and other documentation. This also recognizes remainder lots and previous interpretations and decisions. The remnants become legal. The Hearings Officer confirmed this and referred to County and LUBA cases. The State conveyed the parcels to TID in 1988 with conditions. Some assignments of error are inherently legal and affect others. Regarding the first assignment of error, in 2005 the County rejected the request. New information could be submitted, and it was. The third assignment of error refers to the 1988 deed. Staff feels the creation was through a legal and effective deed. The creation of the lot of record relates to laws at the time. They brought in new factual information that shows the creation of legal lots prior to 1988. The Hearings Officer accepted this information. Ms. Smidt suggested that the first assignment of error per the Hearings Officer be acceptable to the Board. Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 3 of 21 Commissioners Baney said she feels there is a much more extensive review at this time over what was available in 2005, and feels they should accept the Hearings Officer's findings. Commissioner DeBone agreed, as did Chair Unger. Regarding assignment of error number 2, the Hearings Officer determined that the wildlife references are relevant. The restrictions in the 1988 deed relate to ownership and use of the property, and are only enforceable by the parties and not through land use. Deed restrictions cannot be used for land use decisions in most cases. The Hearings Officer examined standards in Code and stated that she is aware that by practice and policy, much of this has been recognized. At times, permits were issued on this basis. This also applies to remainder properties. The appellant spoke about intent and argues the verification is a prerequisite for development. Staff feels this is key to development, but is not the case here. The 1988 conveyance and deed restrictions are not land use laws or related to land use approval, so staff recommends the Hearings Officer's decision on this be adopted. Commissioner DeBone supports this view. Commissioner Baney agreed, and feels if more clarity was needed, it would have been done as part of the original transfer. She does not see anything contrary to the Hearings Officer's findings. Chair Unger also agreed. The third assignment of error is under ORS 017 regarding parcels created by deed. The appellant does not agree and feels this should not include parcels created by deed. The Hearings Officer extensively reviewed this and ORS 215.010 and ORS 017, and addressed two LUBA cases. The applicant feels that ORS 017 addresses those parcels created by deeds. If it was allowed only for those created by subdivision, no lot would ever be approved by deed alone. The definition has been broadened. The appellant feels that this only includes those included by subdivision and not by conveyance or deed. Staff believes the Hearings Officer's analysis is very accurate, but should be strengthened. The analysis and LUBA review are inherently legal in nature, but this could be clarified regarding lot and parcel terms, as has been done in the past. A potential lot of record can qualify as a lot of record or parcel other than by subdivision or partitioning land. These are not tied to the subdivision or partition laws. Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 4 of 21 Code interpretation is consistent with ORS 192. The Hearings Officer provided information on this. Staff recommends adoption of the Hearings Officer's findings but advised strengthening the part regarding lots of record and parcels. Commissioner DeBone referred to the lot pattern provided in the record regarding remainders, and supports this as not intended to go backwards. Commissioner Baney feels this does apply and does not disagree, but would like some findings that are stronger regarding lots and parcels. Chair Unger also agreed and feels the ORS is there to help define this. These are historic lots and it has much to do with what was done in the past when land use was much different. He sees the Board adopting the Hearings Officer's findings but asking for staff to develop more clarity, The fourth assignment of error held that ORS applies to historic lots of record, and it is not for the County to say that a deed conveyed something that perhaps it did not. Those created by deed should be protected by ORS unless further divided by law. Staff feels this is another inherently legal issue relating to case law. It is supported by LUBA decisions. Staff recommends adoption of the Hearings Officer's findings. The Commissioners agreed. Chair Unger noted that these are cases in different counties, but the Hearings Officer did a good job of making these relevant. Ms. Smidt referred to assignment of error number five regarding the Weyerhaeuser decision. The Hearings Officer said that this does not eliminate lot lines created by deed. Staff feels that in its current configuration, it was legally conveyed in 1988 and is legal and effective. Much of this predates modern land use laws. The analysis and review of LUBA cases shows this is inherently legal. The Commissioners said they support the Hearings Officer's findings in this regard. Ms. Smidt said the sixth assignment of error relates to elimination of the boundaries with the 1988 conveyance, but there is no record that these boundaries were removed. The deed did not create or consolidate lots. The Hearings Officer stated that the property lines were not vacated. Commissioner Baney feels that in the absence of any lot line adjustments, she agrees with the Hearings Officer. The other Commissioners concurred. Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 5 of 21 Regarding the seventh assignment of error, the grantor's intent ties in with the reading of ORS. The Hearings Officer felt that the intent is not related to the development per land use regulations. Staff finds the intent in the 1988 deed was reviewed and is inherently legal per real property law. Staff recommends adoption of the Hearings Officer's findings. The Commissioner's agreed. Chair Unger noted that this was not discussed in the deed so intent was not a part of this. Chair Unger felt the Hearings Officer did a commendable job, and staff did good work with the matrix. Ms. Smidt will work on developing the findings, and strengthen thein where appropriate for later consideration of the Board. This part of the meeting concluded at 10:50 a.m. 5. Before the Board was a Public Hearing (continued from January 27) on Widgi Creek Development Application - Fairway — File #247 -14 -000395 -TP. Chair Unger reopened the hearings and Will Groves provided a staff update. Mr. Groves said he has received a number of written materials that are now part of the record. He also received a modification from the applicant during that time, which will be presented today. It triggers a section of Title 22 that gives the Board the option to renotice. He believes that all parties are aware and have had time to review documentation. The changes were sent to the lawyers representing the parties. Chair Unger said he will ask the parties if they need more time in this regard. Mr. Groves stated that the Board asked about the 2001 goal exception for resort communities. Some of the minutes of this are brief or missing. It was initiated under periodic review with stakeholder meetings of representatives of the communities. Attorney Tia Lewis represented Black Butte Ranch and Attorney Bob Lovlien represented Inn of the 7th Mountain. Staff feels it might be helpful to remind people about hearing procedure, and to hit the highlights instead of reading information verbatim. The Board agreed to try to keep people on point. Tia Lewis provided a PowerPoint presentation (a copy of which is attached for reference). She also submitted two letters of support from property owners, and a letter from the Tetherow golf pro relating to the golf course. Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 6 of 21 Also, the Board had asked for an overall map last time, so she referred to an oversized map detailing the various developments, and in particular Widgi Creek showing the various lots. She pointed out that the water company has a right for 210 residences as well as for the golf course. The Inn of the 7th Mountain buildings predate County planning goals. Points West is platted townhome lots, after Arrowood purchased it. It shares the water system with the Inn as well as the Inn's amenities. The Milepost 1 property contains townhome lots, 24 zero lot line with duplex style buildings. There was a lot line adjustment to add some acreage to Points West. She indicated that there are a lot of issues in this case, with many assignments of errors. This requires the Board to look at the history, intent and expectations at the time of development, the resort community ordinance, and what is enforceable. One application is for eight lots and another is for nine lots. They feel these are allowable under the various provisions. This was designed prior to land use rules and was formed under the resort Ordinance. The comprehensive plan applies. (An overlay of the new lots was put over the original map to show how they fit.) Ms. Lewis said that here is, per the comprehensive plan, a gated access between Points West and Widgi Creek. Despite assignments of error, there are two main categories. The question is whether additional residential development is allowed. The comprehensive plan and the resort communities' zone govern this. The resort communities' ordinance in 2001 needs to be examined. The second document is the master plan. If it remains applicable, the question is what is says and whether it can be amended. It has been amended in the past. The last issue is the design elements. They have submitted revised design elements on how the lots fit, to be more compatible, per observations made by the Hearings Officer. For background, in 1983 zoning was changed from surface mining zone, with thirty-three acres changed to forest use. The conditional use permit and master plan applications came in to expand the Inn of the 7th Mountain, which predated the zone. It appears this property was never used for mining purposes. The master plan provisions allowed for subdivision phasing at the time. Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 7 of 21 This is how destination resorts were approved prior to Goal 8, and they had to contain 65% open space. There was no requirement for recreational amenities or money spent for that, or bonding or overnight stays. It was very simple at the time. The golf course was put into the open space, as allowed. The 1983 decision was the first decision for Widgi, and it was for 90 single family and 120 condos. There are no condos but townhomes instead, and the number of homes was increased. There was no map adopted for this master plan decision, unlike Black Butte Ranch which is very detailed. After the 1983 master plan and conditional use permit, in 1984 site planning began for the golf course, which does have a map showing the design of the course, used for marketing purposes. The plan was modified to 107 single family dwellings in 1985, with density still not to exceed a total of 210 units, which matches the water right established for the development. In 1987 this was further modified, and a few more times in other years. It wasn't until 1990 that they started to plat 107 residential lots, prior to the construction of the condo units. There was no real plan for the condos at that time. In 1991, there was a site plan developed for the restaurant, pool, tennis courts and other amenities. This permit expired before the pool was built. There was later a declaratory ruling that the 1983 permit was still valid, in 1995. In 1996 they started platting the townhomes, which went through a series of decisions a few at a time in future years. Some permits expired. Elkai plats were considered through 1998, and the Elkai amenities decision was addressed at that time. As a part of the 1998 decision, the developer signed conditions of approval with the County to establish land use conditions. The opponents will tell you that this means the pool would be maintained. However, this was not part of the conditions of approval at the time. It was to comply with land use requirements. In 2001 the comprehensive plan and amendments were adopted for land use. There was some history after this that relate to changes in ownership. There was a bankruptcy and then a purchase out of bankruptcy. Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 8 of 21 The biggest question is whether any additional residential development is to be allowed at Widgi. If the master plan remains applicable, the question is, what does it say. It has changed over time. There is no map or finite set of development plans. This changed with ownership. The one thing that applies is the residential unit cap at 210 units. This number does not exist as a cap and was not an approval criterion, but they designed these new units to comply with this number. The single reason why the Hearings Officer and staff say the master plan is not applicable is because no one knew exactly what it said. It has changed and there was no set of criteria. She represented Black Butte Ranch and Sunriver, but the difference is that Black Butte Ranch had a finite map and a set of declarations which are mentioned in the resort community code. Widgi's were not defined and were not mentioned. The comprehensive plan provisions and resort community zones do apply. There is a distinction between Widgi creek and Black Butte Ranch. Black Butte Ranch was already in place through the exception process. Widgi and the Inn were not, so an exception was required. They had to be a physically committed development exception, which they met. The Hearings Officer and opponents took some of those findings but used these improperly to say no further development was to be allowed at Widgi. Those were only to establish that they could be allowed, not to limit them in this way. The Board should not rely on her memory or that of Catherine Morrow (a previous County planner). What is relevant is the legislative history, the language of Code and the minutes. The Goal 8 destination resort criteria do not apply, as the developments were pre -Goal 8. They are referred to as being basically built -out, but does not mean there was no more internal development They talked about the Inn being adjacent and the amendment to the comprehensive plan to provide for future developments, and supersede previous maps. It said that there was to be no further commercial development; but it did not preclude future residential development. The comprehensive plan has a section regarding background on resort communities; background of the Inn of the 7th and Widgi being an expansion of this, prior to statewide planning goals. Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 9 of 21 Language under policy section 4.8, resort community policies, applies. Golf courses, common areas and open space are protected. Densities are tied to the capacity of the utilities. This covers 210 units. The comprehensive plan recognized this can change. There is a distinction between Black Butte Ranch and others. The Inn of 7th and Widgi mentions new uses and expansion of existing uses if services can be obtained. Black Butte Ranch was approved under different standards. It does not have a residential district since it was completely developed at the time. Widgi has a residential district. Section 18.110.030 applies. This did not preclude additional development, which could be outright permitted uses, residential and others. There is a different setback for every district in this list. Widgi is separate from Black Butte Ranch and the Inn. They talk about private restrictions. A 2005 amendment provided for new and future development at the Inn and Widgi. She then referred to the development plan and how it fits in the community. The first one is the Refuge, which consists of nine lot townhomes. The modification was moving them further south since the Hearings Officer did not want any driveways on the one-way section of road. A turnaround has also been provided to avoid congestion. The mailboxes are located in this area per agreement and those could be relocated. The units would be outside of the out- of-bounds golf area. A diagram illustrated the ownership breakdown and who are the members of the golf course. Eighteen of the townhome owners and thirty-one of the single family are members. There was no requirement for property owners to be members. This makes it very different from other golf course communities. Under Policy 4.8.2, areas developed as golf courses shall remain available for this, or for open space or recreational uses. The original golf course master plan shows the proposed development clearly outside of the golf course. The water rights map shows the golf course, with an overlay of the development outside of the golf course. There has been testimony that the proposed development is too close or is part of the golf course. If that was the case, this fairway would be almost twice as wide as any other fairway. It might have been utilized as out of bounds by some golfers because there were no markers. Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 10 of 21 All developments are on holes 14 through 18. Hole 14 is a par 4. Existing homes are about 135 to 144 feet from the center of the fairway. The new ones would be up to 179 feet away, significantly further from the out of bound stakes. Hole 15 has homes right at the green. The closest homes at Hole 16 are 93 feet away; the new ones would be further. Hole 17 has homes as close as 90 feet. The average overall for existing homes is about 120 feet to the center of the fairway, while the new ones would average about 130 feet. The pool area schematic would flip the street and provide a landscape buffer. Testimony was given that the pool has not been operable for over two years. The comprehensive plan refers to designated open space, common area and amenities. This is zoned for residential development. It is called common 18, but is not property that is owned by the homeowners' association or tenants in common, or designated for transfer to the association. It has never been owned by the association or any lot owners, nor was it eligible to transfer. It is not common property, as was perhaps the intent. The bankruptcy purchase meant this was considered as a private parcel. She has clients who wish to testify for the applicant. There was a lot of testimony about a community plan and fairness, and reliance on statements at the time of purchase. The owners should be able to develop this property and the County should not deny it. The opposition does not want to be liable to contribute to the operation of the golf course or other amenities. The Points West development is not a part of this development, as they are not connected or served the same. Those should not count towards the residential units limit. The opponents want all of the benefits without the costs. The comprehensive plan and zoning govern this, and this development should be allowed. Barry Helm, owner of Widgi Creek Golf Course, gave some history of his association with Widgi Creek. He purchased it out of bankruptcy in 2004. It was in disarray at that time. They started selling lifetime memberships before then, so he bought those out. There was no way to sustain a course this way. It cost him about $250,000 and he did not have to do this. Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 11 of 21 He spent over $50,000 to pave the golf paths. He loves Widgi Creek and strives to make it the best golf course, and his efforts helped property values go up. He has invested over $2 million in the golf course and clubhouse. Most golf course owners are giant corporations. Others have hotels or are struggling. Some charge people to live on the golf course. Only 22% of the residents are members. The pool was assessed at $540,000 at the time. He did not realize there were never HOA dues in place for the pool. He opened the pool and realized it was too expensive to maintain. He convinced the townhome owners to pitch in, but the residential owners wouldn't. The townhome owners paid $15 per month but that covered only about 20% of the cost. They later opted out. The intent was not to make a profit on the pool, just to keep it open. He asked that they pay S1 and run it themselves, but they used his chemicals, and staff tried to teach them how to run it but that did not work. It was a mistake. He tried to keep it running. He offered it at a cost of S200,000 to take it over with no payments for three years. All three HOA's voted this down. They won't buy it, maintain it or pay for any of it, but want to be able to use it. This has cost him over $300,000 over the purchase price of the pool area. He has no other options. The HOA will not pay a nominal fee, as low as $10 a month. This can't be sustained. The majority of residents don't want a pool unless it is free. There are no neighborhood pools anywhere that are free to residents. Realtors have promised buyers that the pool would reopen. He cannot control what they say. They should be asking him. If the old owners were promised a pool, the HOA should have addressed that at the time. He had no obligation to keep it running when he purchased the property out of bankruptcy. This is the only land on the golf course that does not impact the current owners or the golf course. The evidence speaks for itself. It is within the guidelines of others and actually further away from the fairways. If the Board decides the new development puts people in danger, then everyone there is already in danger. He moved the mailboxes to where they are to avoid traffic congestion. It went onto his property so it would not affect personal property. If he was a homeowner there now, he'd be concerned about development. However, he will never destroy a place he loves. He wants them to know he wouldn't, and can't develop the whole golf course like Orion Greens did when it shut down. Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 12 of 21 He has worked for years to get the pool going. There was a committee formed that could not come up with any ideas. These are the same people who would not pay S10 a month. It is not good to have a shut -down pool in the middle of the development. He has been called greedy or a bad guy. He takes pride in being honest and giving straight answers. He has put his heart and soul into it. He continues to maintaining and improving it, and is not out to destroy Widgi. Any money made is for reserves for the golf course. He would not build anything to degrade the golf course and plans to be there until the day he dies. Brad Hudspeth lives on Aspen Ridge Drive, and is general manager of Widgi Golf Club since 2004. The developers sold the properties originally without assessing HOA dues. He is assessed for the pool and other amenities where he lives. A similar plan at Widgi would have meant the pool would be operating. To try to assess them now has not been successful, not even at $15 or S10 a month. Elkai Woods did not want to own, lease or manage a facility. The pool committee then formed and talked for months, but the HOA's were not supportive. In regards to the first fairway project, these units would be further away from the fairway than other dwellings, and it seems contradictory that there are concerns. (He referred to a map of the original plans and where the out of bounds were located.) Nothing was planned for that area but some ended up being built into the green. The question is what the pro designed. This is consistent except for hole 18, which has homes that are really close. The out of bounds used to be the perimeter of the golf course, and they addressed this with stakes in nine of the holes. The most significant was hole 13. He hopes the Board has a chance to look at the property. The holes were supposed to be played as designed and this development fits in. If he thought this would have a negative impact on the hole, they would not ask for it. People may believe these units would be too close, but some are as much as 60 feet too close already, and this impacts the course. They would not have done this. They have heard that there can be no more development. If they don't go forward, he asked what will happen to the pool property. It is clear most residents don't seem to want it. The owner wants to finalize the number that is allowed and get back to running the course. Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 13 of 21 Commissioner Baney asked about marketing materials and if this development is shown in detail. Mr. Hudspeth said they have no new maps showing this. There were old maps used by Widgi Creek Realty strictly to sell the lots. Bill Hopp testified that Barry Helm purchased the golf course long after it was built. He was not involved in marketing the development. Those materials were provided to interested parties by the previous owner. He said he is an attorney for Mr. Helm. BHelm LLC attempted to purchase the property at a bankruptcy sale from Widgi Creek Golf Club, Inc. It was stopped until the bankruptcy court entered an order, which is very important. It was recorded in deed records to let everyone buying property know that the new owner was not responsible for prior debts or obligations. He is not a successor or obligated by any agreement made by the previous owner. Nothing was continued after September 2004. This included anything known or unknown. It is worded very broadly. It was free of any claims including HOA cases and other actions underway. Right after this was recorded, the deed was as well. Commissioner Baney asked if he feels this wipes out the land use actions. Mr. Hopp said it was taken free and clear of any obligations, and this was clear to the homeowners as well. The pool agreement for leasing it for $1 would not have happened otherwise. There was litigation pending between the developer and homeowners that did not involve Mr. Helm. When Mr. Helm purchased this, the homeowners agreed with him to finish landscaping on common 18. The agreement would not be necessary if he was already obligated. There were other agreements afterwards. The pool was not to be common area and this is clearly shown in deed records. The owners have no say over this. Chair Unger stated this was important information to hear. He wants to listen to other testimony as well. Commissioner Baney suggested they take testimony until 1:30 since people are here to do so today. Michael McGean stated he is representing the three homeowners' associations. He provided a binder with backup information along with a summary. They feel the Hearings Officer's decision was correct. He asked for about 45 minutes to speak. This appeal is important since it raises questions about the comprehensive plan, before Mr. Helm purchased the property. (He referred to a PowerPoint presentation.) Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 14 of 21 He referenced Section 4.8, Resort Community Guidelines. The Hearings Officer was also involved in the original development process. She has found insurmountable obstacles. The Board will need to interpret this to give meaning to all of the language and the land use history. The Hearings Officer did a good job of this. The Board has heard some of the history but not all. In 1984, the master plan was done, and core elements included 210 residential units, an 18 -hole golf course and recreational amenities. This was to be a destination resort. They had to have a 65% ratio of open space. They talked about designated open space, which traces back to this document. If not platted as lots, 210 maximum, the rest was to be maintained as open space. It is clear that the golf course area is part of that 65% ratio. A golf course has fairways, greens, a rough, water features and out of bounds features. The architect who designed it plotted out areas for residential with the rest to be the golf course. This follows the build -out of the development. The maintenance yard area ended up in the Points West development. The 210 -lot intent was carried forward into the 2001 comprehensive plan. The key points are that the findings show that it was built out for all practical purposes, and reiterated comments made at community meetings, a perception that this would be carried forward. The only exception to this general idea would be the single 8 to 9 acre piece that is Points West. So the residents felt this development had been built out. There was an agreement to reduce the townhome portion as a trade-off with the County for free standing townhomes rather than condos. The Fairway 1 application testimony a year ago included comments by Mr. Helm and Mr. Bowles that there were no out of bounds stakes on fairway 1, so they placed them. The course book explains what out of bounds are. This created the de facto boundary of the road. They wanted to save money by not having to mow it also. This is considered part of the rough by the residents. He showed a photo of how it looks now, and said that instead it would look like a sprawling urban area. Regarding Policy 4.8.2, this is clearly meant to be open space or a golf course. Residential development should not be allowed. Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 15 of 21 Regarding Common Lot 18, based on the same Policy, it is designated common area. It was allowed with the other lots, required for community amenities as promised by the developer. The developer acknowledged the community center and pool were meant for the residents, and the developer was supposed to be responsible for it. There was marketing material through Widgi Creek Realty showing what was included. This is part of why the residents purchased where they did. The intent was there for these features to be included. This was in the middle of the development so obviously was a logical place for those amenities. He referred to the conditions of approval. There was a bankruptcy, but this cannot discharge CCR's and covenants that run with the land. The bankruptcy does not wipe away all of these responsibilities. There is a conditions of approval statement that is binding on successors. It does not necessarily have to be a pool, but could be another amenity or open space, The County never promised Mr. Helm a viable business model; nor did the bankruptcy court. He assumed the land restrictions and covenants. The residents understood that there would be a maximum fixed number of lots and the pool area was not going to be for more housing. Several years ago, the owner applied for and received a tax discount based on the express statement of the developer that there was no potential future development, and that the highest and best use was open space. Dana Bratton concluded that this lot would be open space. This was in 2012 and included an interview with Tia Lewis regarding the plan developed in 2001. The letter from Catherine Morrow should also be considered. They both said this would be open space and an alternative use would require a change in the open space. There is otherwise no other potential use. It is hypocritical to take the opposite approach at this time. The comprehensive plan policy exists to prevent developers from playing fast and loose. They may have no intent to develop further than this, but it is a slippery slope. They could try to reconfigure roads or par to be able to add more homes. The Hearings Officer concluded that the old approvals were superseded but stated that this had, for all intents and purposes, been built out and it is not currently to include more residential development. The only exception was the Points West area. There is no more residential development to be done there. There is a code provision that the master plan should continue to apply and old permits cannot be made obsolete. The map might replace the old zoning map, but the text doesn't change and does not wipe away twenty years of history. Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 16 of 21 He asked the Board to adopt the Hearings Officer's decision showing that there is no further residential development allowed. Bob Dempster testified that Mr. Helms made some misstatements about the pool. He bought his property in 1998 and there was no pool then. At some point, the owner decided to build the pool and building for the members of the golf course, not including Elkai Woods. It was never intended for Elkai Woods to use it. Mr. Helms did ask for support to keep it running, but the property owners did not want to get involved. He was not misled by them. All the agreements that Mr. Helms did not have to take over, including the pool, were not presented to the owners. This is between the County and Mr. Helms. There is litigation on this agreement. All of the issues raised were before Hearings Officer Karen Green, and she wrote a 71 page opinion on this. She recommended denying the applications. Mr. Helms has waited until he got into hard times to try to build more homes. Kiefer Tobin said it is all about money. He bought there after looking many properties, and was led to believe that there were restrictions regarding the pool. He owned at the Inn for years and bought at Widgi in 2002. Now Mr. Helm wants to build more homes. The Board should disallow this. He thinks they could have hashed this all out by getting together. Randy Bauman is the president of Elkai Woods fractional HOA. He moved there in 2013. He asked what a resort community supposed to have. It is not called a golf community. Points West has 88 lots and lost access to the Inn. Now the flat land would be converted to homes. Everyone who bought into the area had looked for recreational activities. Someone needs to provide this. The HOA might cooperate but Mr. Helm has dollars signs in mind. He trashed the pool as well. In 2014, Mr. Bowman said he inquired about taking over the pool, and was referred to Kine & Kine. What a person saw when they bought showed this as common area 18. Ms. Lewis has said that if something is shown as common area, it should be kept that way. He lives on hole 18 and is getting pummeled by golf balls, so maybe he should sue. If this is excess land, he asked why are they mowing the lawn around 5 a.m., creating too much noise. Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 17 of 21 Brenda Pace said this started in 2006 with the development of Points West. This has been confusing and some did not understand the resort zone. The master plan only covered Elkai Woods and Widgi Creek. The resort community zone was written for the whole zone and maybe for Points West. There is no mention of a golf course and little mention of amenities. There might have been a single misconception about what applies. They did not expect Points West to happen. She feels that some of the units in the 210 number were used that way. (She complained to the Board that the applicants got a lot of time to speak today and others should get the same.) Ms. Pace stated that the urban land institute has golf course standards for developers and others. That's where the standards came from. Also, she has been told that the HOA cannot assess for something like a pool. Mr. Helm has not asked for a membership program. She believes Mr. Helm doesn't want to develop the golf course into something else, but she does not want to put it at risk. Someone else could end up owning it. Also, the City has indicated they could offer more hookups than Mr. Helm says he needs, Chris Smith stated that he has a history in resort management. He supports any type of improvement. Townhomes would be beneficial and add desirability. He has looked at the pool equipment and it is inappropriate for repair. The 1st hole development won't affect playability. The owner has been diligent about maintenance and increasing reserves for the gold course, and this is a good thing. Mr. S . . enjoys living there and thinks this development would be beneficial for the entire area. Angelo Micheletti lives in Elkai Woods townhomes. He said his word is his bond. His generation was brought up on this. He is very passionate about what is going on. This is an important decision. He was comforted that there would be no more building. This was backed up by s conditions of approval agreement regarding common 18. He provided some evidence of written assurances previously. He is surprised they are here today to even talk about it. What they think doesn't seem to mean anything. Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 18 of 21 Carl Stromquist of Elkai Woods, lives across from common 18, He is president of Elkai Woods HOA. They have been continuously entangled in the pool issue. Their attorney pointed out that the key issues were not brought up by Ms. Lewis. They wanted to focus on the buildability of anything that was considered golf course or amenities. It is simple and clear what direction they need to look. The Hearings Officer's opinion is the heart of it, and she knows what she is doing. She has said this was to be the last building in the past. Residents depended on this. He bought in 2005 and did his due diligence. Everyone understood there would be no more development. He would not have purchased had he thought that the area would be built on. Common 18 is in the exact center of the development, 1.6 acres and the biggest common area, and is a buffer and should be a community gathering area of some kind. No one envisioned this new idea. In response to previous testimony, Ms. Lewis said the golf course is protected, as developed. Something being used by certain members who use other things around it does not mean it is also part of the golf course. Ms. Green's decision was not based on these maps, and she used an old course guide. The mail boxes are on part of this. She also did not have the bankruptcy information and information on how common area 18 was excluded. It does not mention the definition of common area. Her decision does not have the Court of Appeals and LUBA decision regarding Mile Post 1. The common area notation is the same, The residential numbers are related to the services. They keep quoting 210 but there are only 193 there now. This project would be for the last 17 units. This would still meet the open space requirements. The conditions of approval do not mandate that an owner maintain a use or a business. There was no requirement that there be a recreational amenity. The golf course was placed in the open space. The developer proposed a lot of things that the County did not have to approve or require. This plan changed many times over the years. The Hearings Officer's decision will not withstand appeal at LUBA. There is a lot more evidence now than then. The owner has offered to mediate this with the HOA and the result would be the best situation for the community, and that offer still stands. They will hold the record open to do this if there is consensus. Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 19 of 21 Will Groves discussed the timeframe. The clock has been reset and they have some time, but it can't exceed another 100 days without some kind of agreement. Ms. Lewis said that if there is mediation, she would agree with the seven days for additional testimony, seven days for rebuttal and seven more days for applicant rebuttal, and a decision could be delayed for a while. Mr. McGean said his position on mediation has not been discussed. He would prefer guidance from the Board on the policy issues. He thinks they will remain at loggerheads. He objected to any extension of the deliberation process and thinks this is a delay process. The Board agreed that additional material can be submitted until March 7 and 5:00 p.m. Rebuttal from the parties can be submitted until March 14 at 5:00 p.m., and this would be limited to what was submitted during the first seven days, with no additional information. The applicant will have until March 21 at 5:00 to submit final argument. After adequate time to review all of the material, the Board will set a date to render a decision, probably in April or early May. The oral record was closed at this time. 6. Before the Board was a Public Hearing (continued from January 27) on Widgi Creek Development Application - Pool — File #247 -14 -000391 -TP. This was a part of the preceding hearing. 7. OTHER ITEMS None were offered. 8. ADJOURN Being no further discussion, the meeting was adjourned at 1:45 p.m. Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 20 of 21 APPROVED this 2/ Day of Deschutes County Board of Commissioners. ATTEST: Recording Secretary 2016 for the Alan Unger, Chair ( Tammy Baney, Viee)Chair Anthony DeBone, Commissioner Minutes of Board of Commissioners' Business Meeting Monday, February 29, 2016 Page 21 of 21 QUASI-JUDICIAL HEARING OPENING PROCESS: CHAIR: "This is the time and place set for the consolidated hearings on File Nos. 247 -14- 000395 -TP, 396 -SP, 397 -LM and 247-15-000206-A and File Nos. 247 -14 -000391 -TP, 392 -SP, 393 -LM, and 207-A." 2. CHAIR to CDD staff: "Staff will outline the hearing procedures that will be followed." 3. CDD STAFF informs the audience as follows: The hearings body — the Board of County Commissioners, in this case - will take testimony and receive written evidence concerning two applications: o The applicant, Kine and Kine Properties, is requesting approval of an eight -lot, zero -lot -line subdivision. It is identified as Tax Lot 1600 on Deschutes County Assessor's Map 18-11-22DA, and is located at the intersection of Seventh Mountain Drive and Elkai Woods Drive. This is known as the "pool" application. o The applicant, Kine and Kine Properties, is requesting approval of a nine -lot, zero -lot -line subdivision. The subject property is identified as Tax Lot 2001 on Deschutes County Assessor's Map 18-11-00. The area proposed for the subdivision consists of 0.9 acres located between Seventh Mountain Drive and first fairway of Widgi Creek Golf Course. This is known as the "fairway" application. All testimony shall be directed to the hearings body At the conclusion of this hearing the hearings body will deliberate towards a decision or continue the hearing or deliberations to a date and time certain The hearing will proceed as follows: o staff will provide a brief report o the applicant will present its testimony and evidence o the opponent (and/or proponent) will present its testimony and evidence o any other interested persons will then present testimony or evidence o the applicant, as the party bearing the burden of proof, will then be afforded an opportunity to present rebuttal testimony o if requested by the hearings body, staff will provide closing comments 4. CDD STAFF: "A full written version of the hearing procedures is available at the table at the side of the room. 5. CDD STAFF: "Commissioners must disclose any ex-parte contacts, prior hearing observations, biases, or conflicts of interest. Does any Commissioner have anything to disclose and, if so, please state the nature of same and whether you can proceed?" 6. BOARD: The hearings body discloses conflicts or ex-parte contacts and states whether they are withdrawing from the hearing or whether they intend to continue with the hearing. 7. CDD STAFF: "Does any party wish to challenge any Commissioner (member of the hearings body) based on ex-parte contacts, biases, or conflicts?" 8. CHAIR: open the hearing and direct staff to proceed with brief staff report. PRELIMINARY STATEMENT FOR A QUASI-JUDICIAL PUBLIC HEARING BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS The applicants have the burden of proving that they are entitled to the approval requested. Testimony and evidence at this hearing must be directed toward the approval criteria, as well as toward any other criteria in the comprehensive land use plan of the County or land use regulations which any person believes apply to this decision. Failure on the part of any person to raise an issue with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue. Additionally, failure of the applicant to raise constitutional or other issues relating to the approval with sufficient specificity to allow the Board to respond to the issue precludes an action for damages in circuit court. The Board's decision on this application will be based upon the record before the Hearings Officer, the Hearings Officer's decision, the Staff Report and the testimony and evidence presented at this hearing. The hearing will be conducted in the following order. 1. The staff will give a report. 2. The applicant presents testimony and evidence. 3. Proponents and opponents testify and present evidence. 4. The applicant presents rebuttal testimony. 5. At the Board's discretion, if the applicants presented new evidence on rebuttal, opponents may be recognized for a rebuttal presentation. 6. Staff will be afforded an opportunity to make any closing comments. The Board may limit the time period for presentations. If anyone wishes to ask a question of a witness, the person may direct the question to the Chair. The Chair is free to decide whether or not to ask such questions of the witness. The grant of a continuance or record extension shall be at the discretion of the Board. Page 1 of 2- PRELIMINARY STATEMENT FOR A QUASI-JUDICIAL PUBLIC HEARING BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS If the Board grants a continuance, it shall continue the public hearing to a date certain. If, at the conclusion of the hearing, the Board leaves the record open for additional written evidence or testimony, the record shall be left open to a date certain for submittal of new written evidence or testimony. If the hearing is continued or the record left open, the applicant shall also be allowed a period to a date certain after the record is closed to all other parties to submit final written arguments but no new evidence in support of the application. Commissioners must disclose any ex -parte contacts, prior hearing observations, biases or conflicts of interest. Does any commissioner have anything to disclose and, if so, please state the nature and extent? Does any party wish to challenge any Commissioner based on ex -parte contacts, biases or conflicts of interest? Page 2 of 2- PRELIMINARY STATEMENT FOR A QUASI-JUDICIAL PUBLIC HEARING BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subject: Kingiffplii Date: Name lLrriie„( ( k2 /72-6.5i4Ac."-- Dr Address Phone #s 563 \ 17167 3S53 Abcc re cit I E-mail address F7( In Favor Neutral/Undecided o Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Opposed BOARD OF COMMISSIONERS' MEETING REOUEST TO SPEAK Subject: Klie krol;clitiv Name 8(a-( Address lq144 5W Afiffm Ri;(4e, The 601.4 oP. 911 07 - Phone #s So3 - 1i5 - S -7 151 E-mail address bro-el e. In Favor Neutral/Undecided Date: 2- 71 Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Opposed Subject: Name Address BOARD OF COMMISSIONERS' MEETING REOUEST TO SPEAK ioN (3-- Date: W Hf 1-‘ 4-7 Phone #s 54(( -3 E-mail address Pier In Favor Neutral/Undecided rEkT5-1-Tosed Submitting written documents as part of testimony? LLJ Yes If so, please give a copy to the Recording Secretary for the record. BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subject: Name Address Date: Phone #s S E-mail address // In Favor No Neutral/Undecided ( Opposed Submitting written documents as part of testimony? Yes E No If so, please :ive a copy to the Recording Secretary for the record. BOARD OF COMMISSIONERS' MEETING Subject: Name 1<ic / 4—C REQUEST TO SPEAK Address Phone #s E-mail address In Favor 1 a 4 #.• e• It., es :,atosaa Date: 2/2 //6 r Neutral/Undecided Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. BOARD OF COMMISSIONERS' MEETING Subject: Name Address REQUEST TO SPEAK fi‘ Gsq)„ [5"-kc0 Phone #s 20G, E-mail address re'N (11 Date: No 12q In Favor Neutral/Undecided Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Opposed No BOARD OF COMMISSIONERS' MEETING Subject: Name r _ Address "oz Phone #s E-mail address In Favor REQUEST TO SPEAK Date: Z Neutral/Undecided Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subject: Date: Name Address /? 0 Phone #s .2-- V/ / E-mail address InFavor Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Neutral/Undecided Opposed No C‘Jej Opposed No Subject: Name Address BOARD OF COMMISSIONERS' MEETING Phone #s REQUEST TO SPEAK diA/ .AP Date: c7 46 gE/10 4/Li_e//z. (DL45Q -cIi/ im9t5 7)7e 0e) t) ? 7 7 0 6. 3?—/3 ar) E-mail address In Favor NeutraliUndecided r --Opposed Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subject: I< (3,1z) fe-03.5 Name C-dt R.1 + t Address 6057 ,t1 (i't kA.) 6acis Q 917 Phone #s 1 7— 14 E-mail address CA f-1 S L0-i---v‘A KA ; 1. In Favor Neutral/Undecided Submitting written documents as part of testimony? X. Yes No Date: Z-lz-1 I 1 If so, please give a copy to the Recording Secretary for the record. Opposed No 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 AGENDA REQUEST & STAFF REPORT For Board Business Meeting of February 29, 2016 DATE: February 24, 2016 FROM: Cynthia Smidt Community Development Department 317-3150 TITLE OF AGENDA ITEM: Deliberation of Appeal by Central Oregon LandWatch of Hearings Officer's decision approving a Lot of Record Verification. File Nos. 247 -15 -000222 -LR, -000430-A, and -000633-A. PUBLIC HEARING ON THIS DATE? No BACKGROUND AND POLICY IMPLICATIONS: Before the Board are deliberations on an appeal (247-15-000633-A) filed by Central Oregon LandWatch in response to the Hearings Officer's decision, file nos. 247 -15 -000222 -LR and - 000430-A, approving the applicant's request for a Lot of Record Verification. The applicant is Tumalo Irrigation District. On December 28, 2015, the Board agreed to hear this matter on the record under Order 2015-058. The record closed on January 26, 2016. See attached staff memo for further background information. FISCAL IMPLICATIONS: None RECOMMENDATION & ACTION REQUESTED: Deliberate, and provide direction to staff. ATTENDANCE: Cynthia Smidt DISTRIBUTION OF DOCUMENTS: Cynthia Smidt, Planning Division 1/12/16 Community Development Dmtt Planning Division Building Safely Division Environmental Soils Division P{1Box §O05 117 NW Lafayette Averwe Bend, Oregon A77Q8{0J5 Phone: (541) 338'65/5 Fax: (54l)385-l7b4 htto��414,,vdoohutes.org/cd MEMORANDUM TO: Board of County Commissioners FROM: Cynthia 8nnidt.Associate P|anme / DATE: February 24, 2016 RE: Lot of Record Verification Appeal (File Nos. 247 -15 -000222 -LR, -000430-A, and -000633-A) Deliberation PURPOSE The Deschutes County Board of Commissioners (Board) is hearing an appeal filed by Central Oregon LandWatch (LandWatch) (Attachment 1). The applicant is Tumalo Irrigation District (TID), which is represented by attorney Liz Fancher. The appeal was submitted in response to a Deschutes County Hearings Officer's decision approving the applicant's verification of a legal lot of record (Attachment 2). On December 28, 2015, the Board agreed to hear this matter on the record under Order No. 2015-058. The record closed on January 26, 2016. The Board wi!I deliberate on February 29, 2016 at 10:00 a.m. and discuss submitted comments and suggested interpretations raised in this case. Below is a review of the issues before the Bnard, including a summary matrix After the Board deliberates and makes its decjsion, staff will prepare a written decision to be adopted by the Board at a later date. PRELIMINARY PROCEDURAL ISSUES TID raised two preliminary procedural issues on January 22, 2016 (Attachment 3). LandWatch offered a response (Attachment 4). Staff recommends they be addressed prior to the Board proceeding with appeal deliberations. 1. New Evidence On January 11, 2016. LandWatch submitted written arguments in both electronic and paper format. In both versions, two attachments were included. Of the two attachments, Attachment 1, labeled as "Quitclaim deed State of Oregon to TID" was considerably larger in size and included new infornladoD, with the electronic version compared to the paper version. New evidence is not allowed pursuant to Deschutes County Code (DCC) Section 22.32.0030/E\. Through correspondence with the applicant and County staff, LandWatch had no objection for File Nos.: 247 -15 -000222 -LR, -000430-A, and -000633-A the removal of the new information submitted with the January 11, 2016 electronic version of written arguments. Staff Recommendation: Since LandWatch is agreeable to the removal of the new evidance, staff only provided to the Board the LandWatch arguments in written format, which includes the correct mttachnnenta, for consideration. Staff recommends that the Board find that only the written arguments submitted by LandWatch (and not the electronic arguments) be included in the Record before the Board.. 2. Transcript Requirement In DCC 22.32.024/BU of the County Procedures C)ndinance, the appellant is required to provide to the Planning Divieion, by a specific date, a complete transcript of the hearing appealed. Tumalo Irrigation District is asking the Board to interpret this code requirement. Section 22.32.024(B) of the DCC states the following: Appellants shall submit to the P/anning Division the transcript no later than the closo of the day five days prior to the date set for a de novo appeal hearior, in on -the -record appeals, the date set for receipt of written arguments. Staff & Appellant: Staff interpreDCC 22.32.024(B) as requiring the transcript to be filed by the date set for receipt of written connnnerda, which for the appellant (Landwatch) was January 11, 2016. This information was relayed to the appeflant as requested. The appellant submitted the transcript on January 11, 2016. Staff interprets this code section based on its structure: Appellants shall submit to the Planning Division the transcript no latethan the closof the da«t] [A.] five days prior to the date set for a de novo appeal hearing or, [B.] in on -the -record appeals, the date set for receipt of written arguments. Applicant: Tumalo Irrigation District interprets DCC 22.32.024(B) as requiring the transcript to be filed five days prior to the date set for the receipt of written orgurnante, which in this case, was January 6, 2010. The applicant believes the intention of this code section is to allow parties to adequate time to review the transcript and submit written arguments. As provided by T|C), the following structure of the code is how the applicant interprets [)CC 22.32.024(B). Appe/Iants shall submit to the Planning Division the transcriptt no later than the close of the day five days prior to[:] [A.] the date set for a de novo appeal hearing or, [B.] in on -the -record appeals, the date set for receipt of written arguments. Staff Recommendation: The Board may decline to consider the appellants appeal if the transcript failed to be submitted. Section 22.32.024/B\continues asfollows: Unless excused under DCC 22.32.024, an appellant's failure to provide a transcript shall cause the Board to decline to consider the appellant's appeal further and shall, upon notice mailed to the parties, cause the lower Hearings Body's decision to become final. File Nos 247 -15 -000222 -LR, -000430-A, and -000633-A Page 2 As noted above, the appellant did submit the transcript but the date is being questioned, which has TID asking the Board to interpret the code requirement. As an additional preliminary nnetter, staff recommends that the Board find that staff's interpretation of DCC 22.32.024 was correct and that the transcript is deemed timely submitted. [Should the Board conclude that staff was incorrect in its interpretation of [)CC 22.32.024. the Board could decline review causing the lower Hearings Body's decision to become finaL] BACKGROUND The general purpose of the Lot of Record provision in the County Code is to determine if land that was created outside the applicable land division and zoning ordinances in effect on the date the lot or parcel was created, was legally established by a specific means. Although the creation of a parcel or lot may be transferred by a legal and effective deed, it may not have conformed to all zoning and subdivision or partition requirements at that time of its creation. Under most circumstances, Deschutes County will not recognize a unit of land for planning or development purposes uness it is recognized as a legal lot of record. The Lot of Record provision in County Code has evolved over time. Prior to 1979, the County's subdivision ordinance (Public Law (PL) 2) and Oregon Revised Statutes were used. In 1879, a provision was established in the County Code in the Nonconforming Uses Chapter (PL -15). At that time, a section of the County Code required that a lot or parcel less than the established minimum lot size for the zoning had to have been created via partition or subdivision before the County recognized it as legal and that if the lot was created by deed the County would not recognize it for purposes of development. In 1987, County Ordinance 87-015 established a formal lot of record definiUon, which is the same or similar to what is used today. Since this time, there have been several Hearings Officer's decisions and County policies that accompany subsequent decisions regarding lot of record determinations and the interpretation of the County Code. As in this case, previous Hearings Officer's decisions and policies are referenced in this administrative decision and further analyzed in the recent Hearings Officer's decision. For reference, DCC 18.04.030 defines a Lot of Record as follows: A. A lot orparcel at least 5,000 square feet in area and at Ieast 50 feet wide, which conformed to all zoniand subdivision or partition requirements,/f8nA/ne/feCY0nV7edah9&h8lot0r parcel was created, and which was created by any of the foliowing means: 1. By partitioning land as defined in ORS 92; 2. By a subdivision plat, as defined in ORS 92, Ned with the Deschutes County Surveyor and recorded with the Deschutes County Clerk; 3. By deed or contract, dated and signed by the parties to the transaction, containing a separate legal description of the lot or parceland recorded in Deschutes County if recording of the instrument was required on the date of the conveyance. If such instrument contains more than one legal description, only one lot of record shall be recognized unless the legal descibnnSdeSCribe/0/Ooubent to a recorded subdivision or town plat; 4. By a town plat fi/ed with the Deschutes County Clerk and recorded in the Deschutes County Record 0fPlats; 0r 5. By the subdividing or partitioning of adjacent or surrounding land, leaving a remainder lot or parcel. File Nos.: 247 -15 -000222 -LR, -000430-A, and -000633-A Page 3 B. The following shall not b8deemed h}b88lot 0frecord: Y. A lot or parcel created solely by a tax lot segregation because of an assessor's roll change or for the convenience of the assessor. 2. A lot or parcel created by an intervening section or townshiline or right of way. 3. A lot or parcel created by an unrecorded subdivision, unless the lot or parcel was conveyed subject toDCC Y8.04.O30(B). 4. A parcel created by the foreclosure of a security interest. For reference, the County Code defines "lot" and "parcel" in general terms associated with subdividing and partitioning land, naspactive|y, but the terms are at times interchangeable and essentially determine the boundaries of existing units of land that may or may not be legally established. In addition, DCC 18.04.030 defines the foliowing terms; 7P8rce/"means 8unit Ofland created bvG partitioning of land. "Partition" means an act of partitioning land or an area or tract of land partitioned as defined under "partition land." "Partition land" means to divide land into two or three parcels within a calendar year.1 "Lot" means a unit of land created by a subdivision ofland. "Subdivision" means either an act of subdividing land or an area or a tract of land subdivided. The subject property, tax lot 7891 or's tax map 10-11-00\ in its entirety, is approximately 755 acres, located at 18194 Tumalo Reservoir Road. Tax lot 7891 was created through the recording of a Statutory Quitclaim Deed when the State of Oregon conveyed the property to Tumalo Irrigation District on September O. 1988. The property is essentially the site of the Tumalo Reservoir project.2 At the time of the 1988 conveyance, the County's subdivision and partition ordinance PL -14 was used to regulate all subdivisions and partitions and the zoning ordinance PL - 15 regulated minimum lot sizes. On April 28, 2015, the applicant filed for a Lot of Record verification to determine if a portion of the property, tax lot 7891, consisted of five legal lots of record. Based on the overlap of historic trGnemctions, staff reviewed the legal status of the entire subject pnoperty, which included the five requested lots. Planning Division staff issued an administrative decision on July 27, 2015 finding that the subject property constitutes eight legal lots of record, including the five legal lots requested for review with the application (Attachment 5). The Planning Division staff also found that the subject property incudes four additional areas not recognized as legal lots of record that resulted from a 1988 deed conveying land from the State of Oregon to TID. LandWatch appealed the decision to a Hearings Officer who held a public hearing on September O. 2015. The Hearings 1 The remainder of this definition reads: Partition land does not include divisions of land resulting from lien foreclosures, or recorded contracts for the sale of real property and divisions of land resulting from the creation of cemetery lots. Partition land does not include a division of land resulting from the recording of a subdivision or condominium plat. Partition land does not include an adjustment of a property line by the relocation of a common boundary where an additional unit of land is not created and where the existing unit of land reduced in size by the adjustment complies with any app!icable zoning ordinance. 2 The Tumalo Irrigation Project in 1904 promised to irrigate approximately 27.000 acres of land near Tumalo Creek, a tributary to the Deschutes. After the developers suffered nearly 10 years offinancial, managerial, and engineering disasters on the project, forcing some farmers to go bust, the state took over the irrigation system in 1913. The state's solution to the Tumalo project, which lacked enough water to irrigate all of the promised land, was to build a storage reservoir. Tumalo Reservoir was completed in 1915 but failed to hold water when giant sinkholes opened on its floor. File Nos.: 247 -15 -000222 -LR, -000430-A, and -000633-A Page 4 Officer issued a decision on November 12, 2015 approving and affirming the applicant's Lot of Record verification and staff decision. In the administrative decision, staff found that in the early twentieth century, numerous deeds and federal land grants were conveyed in the area of the subject property. The deeds and land grants were dated and signed by the parties to the transactions and eventually recorded in Deschutes County. The transactions contained separate legal descriptions of panc8|e, illustrating discrete boundaries for the transferred land. Although most of the parcels reviewed here were included in subsequent deeds describing adjacent lands together in a single deed, in previous cases, Deschutes County Hearings Officers found that this action does not eradicate the boundary lines that legally established those properties in the past. These previous decisiono, as in this case, hinge on Oregon Revised Statute (ORS) 92.017. which states the foliowing: A lot or parcel lawfully created shall remain a discrete lot or parceunless the lot or parcel lines are vacated or the lot or parcel is further divided, as provided by law. Although this section is found in the provisions of ORS Chapter 92 governing partitions and eubdivieiono, previous decisions by Hearings Officers recognize that the County has effectively applied the rule to lots or parcels created by conveyances. Furthermore, there was no evidence found with the TID Lot of Record verification that indicated parcels were consolidated through a subdivision or partition. Some parcels reviewed in this case are found to be remainder lots, because they are surrounded by legally created lots. Although the remainder lots do not meet the strict definition contained in [)CC 18.040.030(A)/5>. once altered by subsequent convmyencee, the remnants become legal remainder parcels. This was articulated bye previous Hearings Officer's decision (file LR -10-2). In summary, it was determined that the subject property constitutes eight legal lots of record including four areas that are not. As noted previously, the Hearings Officer approved and affirmed the applicant's Lot of Record verification and staff decieion, which included additional review of policies and practices by Deschutes County. The subject property and the surrounding area are in a Wildlife Area (WA) Combining Zone. More epeoificaUy, the surrounding area is within the Tumalo Deer Winter Range. When the subject property was conveyed to TID from the State of Oregon in 1988. the conveyance included limitations that the property be "held in public ownership and used as a winter feeding area for wildlife satisfactory to the Oregon Department of Fish and Wildlife." As noted in the administrative staff decieion, there is unmistakable public interest regarding the subject property, the wildlife protections of the WA combining zone, and the 1988 conveyance. The Hearings Officer explored the issue in more detail and affirmed staff's decision. APPEAL The appellant's notice of appeal describes several assignments of error in the Hearings Officer's decision. These are listed below in bold, followed by a summary of the legal argumentation presented to the Board by TID and Landwatch (Attachments 6, 7, and 8). A summary matrix is also included on Page 16. The legal argunlente, although separated be|ovv, are intertwined and thus a Board decision on one argument will affect another. File Nos.: 247 -15 -000222 -LR, -000430-A, and -000633-A Page 5 The appellant argues that the Hearings Officer erred: 1. The County in 2005 already rejected the Applicant's request for a lot of record determination and found that the subject property did not include any lots of record. In 2005, the County issued an administrative decision through file no. LR -04-37 regarding a lot of record determination of the subject property. The decision found that the 1988 deed referenced above did not create a legal lot of record beCaUse, at that time in 1988. "all new parcels in the County had to have been created through a partition approved by the County" (PL -14, former subdivision and partition ordinance). [Emphasis added} Hearings Officer: The Hearings Officer reviewed [)CC 22.28.040. which allows reapplication of a lot of record determination only if the new factual evidence is pnySented, and concluded that the new evidence (deeds and patents) is pertinent in this case. Under this section, the Hearings Officer found that the reapplication "is not bound by the 2005 determination." Applicant: Tumalo Irrigation District concurs with the Hearings Officer's findings. The applicant argues that, "the deeds and patents are relevant because DCC 18.04.030 lot of record' says that parcels lawfully created by deed are legal }oto of record." In additioD, the consolidation of existing units of land or the creation of a new parcel in 1988 would not be legal unless through County approval. Tumalo Irrigation District reapplied on April 22, 2015 with new factual evidence not considered in file LR -04-37. Appellant: LandWatch argues that any new evidence, including previous deeds and patents, submitted with reapplication of the lot of record determination is irrelevant and state that it is necessary to "distinguish between the creation of a parcel and the creation of a lot of record." Considering the 1988 deed specifically, the appellant indicates that since the subject property was not created by partitioning or subdividing land under ORS Chapter 92 or by deed prior to such laws being adopted, the 1988 deed established a unit of land that does not meet the definition Lot of Record. Staff Recommendation: Although the 1988 transfer of land was through a legal and effective deed ("creation of a parcel") and, as found in LR'04-37. did not create a legal lot of record in its current configuration of 755 acres, the applicant submitted new factual and relevant information not considered in the 2005 administrative decision. [Emphasis added' Pursuant to DCC 22.28.040, both staff and the Hearings Officer accepted the new information. The new information resulted in a decision that illustrated the "creation of a lot of reomrd" and in this case, the creation of eight Iega Iots of record. Staff recommends the adoption of the Hearings Officer's findings on this issue. 2. The Hearings Officer also erred in determining that the 1988 deed's provisions calling for protection of wildlife are irrelevant to the lot of record determination, despite the resulting fragmentation of the land that would occur with the creation/verification of eight lots of record - - such lot of record verification being a key prerequisite to development. Hearings Officer: The Hearings Officer found that the deed restrictions contained within the 1988 deed relate to the ownership and use of the property and such deed restrictions "are only enforceable by the parties to the transaction." Moreover, the restrictions are not land use laws enforceable by the County unless reated to a specific land use approval. File Nos.: 247 -15 -000222 -LR, -000430-A, and -000633-A Page 6 The Hearings Officer examined County standards, policies, and procedures in regards to lot of record determinations. The Hearings Officer states the following before defining some of the policies and practices in which she references: Title 18 does not expressly require lot -of -record verification as a prerequisite to development. Nevertheless, the Hearings Officer is aware the county has established such a requirement through policies and practices. After reviewing the differences in language found in Titles 17 and 18 that address lots of record, the Hearings Officer states Both definitions recognize as legal lots those units of land created by subdivisions, partitions, and conveyances.3 The Hearings Officer is aware that by policy and practice, the county has recognized additional categories of lots of record not expressly included in the definition in Section 18.04.030. Exhibit "A" to the applicant's September 22, 2015 post - hearing submission is a June 13, 1990 memorandum from former principal planner Kevin Harrison stating a legal lot of record includes: • a lot or parcel for which the county has issued a building or septic permit; and • a lot or parcel that was "developed" prior to the county's involvement in the building permit process — i.e., prior to 1972 for septic permits, and prior to 1975 for building permits. In addition, the Hearings Officer is aware the county has recognized another lot -of -record category through policy and practice: a "remainder" lot or parcel created through conveyances of all surrounding land recorded before the effective date of the county's subdivision and partition ordinances.4 E.g., Korish (A-10-3, LR -10-2). Additionally, the Hearings Officer states that the development and land division provisions contained within the WA Zone do not apply to Lot of Record determinations. Applicant: Tumalo Irrigation District concurs with the Hearings Officer's findings, agreeing that the restrictions are not land use laws. The applicant adds the following argument regarding the deed restrictions held within the 1988 conveyance: They are a contract between the State of Oregon and TID. They cannot be used to decide County land use cases. ORS 197.015(10); ORS 197.175(2)(d)(County to make land use decisions based on acknowledged comprehensive plan and land use regulations); ORS 197.763(5)(b)(arguments must be directed toward criteria in plan or land use regulations). For reference, the applicant stated the reason for the requested Lot of Record determination. Those reasons are as follows: 3 Hearings Officer's footnote 7 states, "The Hearings Officer is aware the county has interpreted the term "created" for purposes of both the legal lot provisions to signify the point in time when a unit of land was subdivided or partitioned, or when it first was described by itself in a conveyance." 4 Hearings Officer's footnote 8 states, "Those dates are 1970 for PL -2, the first subdivision ordinance, and April 5, 1977 for PL -7, the first partition ordinance." File Nos.: 247 -15 -000222 -LR, -000430-A, and -000633-A Page 7 • Tumalo Irrigation District wants to own all land around Tumalo Reservoir so it can control access to the reservoir. • The State of Oregon... owns land under and around the Tumalo Reservoir. • Tumalo Irrigation District wants to prevent development or use of the reservoir by the State that is inconsistent with its use as a reservoir. • The State is willing to trade land it owns around and under the Tumalo Reservoir for a part of Tax lot 7891. • Tumalo Irrigation needs to confirm lot boundaries prior to trading land or adjusting boundaries with the State. Appellant: LandWatch argues the validity of grantor's intent of wildlife protection. The concern being that a determination of legal lots of record is necessary prior to development and thus the relevance and enforcement of the wildlife protection as stated in the 1988 deed. The appellant also argues in a foregoing assignment of error, additional grantor's intent including deed conveyance of a single parcel "conveys a single parcel." Staff Recommendation: The issue or argument here is whether the act of creating a parcel or lot corresponds to deed restrictions relating to ownership and use of the property. As confirmed in the Hearings Officer's decision and based on county policy and practice, the appellant is correct in stating that lot of record determinations are "a key prerequisite to development." In most situations, the County will not recognize a unit of land for development unless it is recognized as a legal lot of record. Therefore, based on the reasons for the Lot of Record determination, TID would like to own all land around the existing reservoir. In order for TID to trade desired lands with the State, which may include using the County's property line adjustment application process as part of that trade, the County will want to know if such units of land are legal lots of record prior to accepting an application as complete. Although a concern for LandWatch is future development of the area, the ownership and use restrictions contained within the 1988 deed are not related to a specific land use approval and thus would not be relevant in a property line adjustment as discussed here. The Hearings Officer's decision is thorough and accurate in the review of code provisions, policies, and practices. Therefore, staff recommends the Board adopt the Hearings Officer's findings on this issue and recognize County policies and practices. 3. A fundamental error of the Hearings Officer is her finding that ORS 92.017 applies to this case and that it applies to parcels created by deed. ORS 92.017 provides: "A lot or parcel lawfully created shall remain a discrete lot or parcel, unless the lot or parcel lines are vacated or the lot or parcel is further divided, as provided by /aw." The applicable definitions in ORS 92.010 define "lot" as a unit of land created by a subdivision of land and "parcel" as a unit of land created by a partitioning of land. They do not include parcels created by deed, as is, for example, specifically included in the definition of "parcel" in ORS 215.010. ORS 92.017 is not applicable here, as a matter of state law, notwithstanding any County interpretations of "parcel" or relevant policies. Hearings Officer: The Hearings Officer extensively reviewed the statute and the definitions of lot and parcel in ORS 92.010 and ORS 215.010. In her review, the Hearings Officer addressed two Land Use Board of Appeals (LUBA) cases, Kishpaugh v. Clackamas County, 24 Or LUBA 164 (1992), and Thomas v. Wasco County, 58 Or LUBA 452 (2009), both of which evaluate ORS 92.017. LandWatch also raises the legal argument that the Hearings Officer erred on her File Nos.: 247 -15 -000222 -LR, -000430-A, and -000633-A Page 8 interpretation of the Kishpaugh and Thomas cases. These arguments are discussed below under the fourth assignment of error. Applicant: Tumalo Irrigation Ointrictarguaothat ORS 92.017 does applyto historic parcels created by deeds and patents and that the statute vvmevvh�ento control uch outcomes as is with this case. As indicated by T|C>, if the terms "lot" and "parcel" only applied to lots and parcels created by subdivisions and partitions approved under the authority of ORS Chapter 92, "no unit wouldVfland created by a deed wouldever qualify as a lot of record." Furthermore, TID states the following: The definitions of the terms "lot" and "parcel" do not require that the act that created the lot or parcel be a modern day partition or subdivision. The means of creation is absent from the definitions of "partition land" and "subdivide lands" that are used to define lots and parcels. The same is true for the similar terms employed by ORS Chapter 92.5 As a result, any time a unit of land is divided by an historic subdivision, modern daysubdivision or partition, or by deeds and land sales cDn�� contracts units of lands either lots orparcels for purposes 0fthe County's lot of record /aw, The applicant relies on LUBA's findings in the above noted cases mfKJnhp8uoh and Thomas.TUnnm|o Irrigation District addresses these LUBA cases below under the fou Kih shpaugh of error. Regarding LandWatch's claim beow that the Hearings Officer contradicts LUBA case Just v. Lane County 50 Or LUBA 399, 405 f.n.. 3 (2005). TID states, "The Just case involves the interpretation of the term 'ownerships' and does not invoive an interpretation of ORS 92.017." Appellant: LandWatch argue8, as stated in this assignment of error, ORS 92.017 does not apply to parcels created by deed or land sale contracts; it only applies to subdivision lots and partition parcels. The argument compares the definition of "parcel" in ORS 215.010. which includes a unit of land created by deeds. The appeflant, through the reference of LUBA's Just v. Lane CnuDh/, argues that the Hearings Officer offers a contradictory interpretation of the case where ''LUBA summarized the difference between the two definitions of 'parcel'...." Since both ORS Chapter 92 and Chapter 215 definitions of "parcel" were included in the same legislation (1985 House Bill 2381), LandWatch argues that the legislative intent was to distinguish between the two and thus units of land created by conveyance are not included in ORS 92.017. Therefmre, the text of ORS 92.010 does not warrant more than one inta[pnetmtion, according to LandWatch. Based on the misapplication of ORS 92.017 in this case, LandWatch requests the Board reaffirm the 2005 administrative decision (denial) for file LR -04-37. Staff Recommendation: The analysis of ORS 92.010 and ORS 215.010. together with the review of the following LUBA canee, is inherently legal in nature. The Hearings Officer's decision is sufficiently thorough and accurate in the review. Therefore, staff recommends the Board adopt the Hearings Officer's findings on this issue. 4. The Hearings Officer also erred in her interpretation of LUBA's decision /n~v. Clackamas ���m�County,�� 24 Or LUBA 160 (1992), and Thomas v. Wasco ���m�County,58��r ^WB452 5 In the applicant's footnote 3, it states, "The June 10, 1985 testimony of Al YounD. Chair of the House Committee on Housing and Urban Development to the Senate Committee on Energy and Natural Resources when it considered House Bill 2381explains that the Legislature intentionally removed language from the terms ''|ot " and "parcels" that iimited their application to local subdivision and partition processes adopted in accordance with ORS 92 laws adopted in 1973. The effect of this change was to broaden the definition of ot and parcel to include units of land created by deeds and pre -1973 subdivisions." File Nos.:247'15'0OO222-LK.-0O043O-A.and 'OD0833`A Page 9 (2009), as holding that ORS 92.017 applies to historic lots created by deed. Parcels created by deed do not persist through time but arise and fall away based on private transactions, and it is not for the County to say that a deed conveyed something that it did not. Hearings Officer: The Hearings Officer extensively reviewed LUBA's Kishpaugh and Thomas cases. In Kishpaugh and Thomas, LUBA reviews legislative history of ORS 92.017, implications of local code provisions, and the comprehensive relationship between units of land that are legally created and legally developable. Moreover, as reviewed by the Hearings Officer, the Thomas case addresses Wasco County code provisions at issue that rely an particular deed language and presumed grantor's intent ("matter of real estate law") by the county. The Hearings Officer found the two LUBA decisions made it clear that units of land lawfully created by deed conveyance are protected by ORS 92.017. Therefore, the units of land remain as such unless their boundaries are vacated or further divided "as provided by law." LandWatch presents arguments related to grantor intent, which are discussed below under the seventh assignment of error. Applicant: Tumalo Irrigation District concurs with the Hearings Officer's findings; adding that "[I]ot creation is a state-wide issue governed by ORS Chapter 92." The applicant continues by stating the following: While ORS 92.017 does not prevent the County from imposing requirements that substandard lots or parcels be developed together or comply with County zoning rules, it prevents the County from eliminating lawfully created lot lines. Furthermore, the fact that the County may not be required to apply ORS 92.017, the County retains the right to interpret its own code in a manner that is consistent with the rules of ORS 92.017 as long as the interpretation is plausible. [LandWatch] has not claimed or shown that the County's interpretation is not plausible. The applicant indicates that the Hearings Officer's decision is consistent with several LUBA cases, none of which supports the appellant's claim.6 Included in these cases is Smith v. Jackson County, 37 Or LUBA 779 (2000), which TID indicates that LUBA adhered to its holding in Kishpaugh as it discussed the conveyance of several parcels in one deed. Without a procedure specific to that county code, the conveyance discussed in Smith did not vacate the property lines between the parcels. The issue of conveying several parcels in one deed is also addressed in the sixth assignment of error below. Appellant: LandWatch extensively argues that reliance on LUBA's Kishpaugh and Thomas by the Hearings Officer is "misplaced." The appellant states the following: To the extent ORS 92.017 may protect units of land lawfully created by conveyances at all, which is contrary to the express definition of "parcel" for that statute, the protection ORS 92.017 provides to any unit of land is not the protection the Hearings Officer claims for it. ORS 92.017 is directed at local governments, not at willing buyers and sellers in the private real property market. 6 The applicant referenced five LUBA cases that were previously discussed in TID's Final Argument with the Hearings Officer and which include "Joseph v. Baker County, 33 Or LUBA 38 (1997), Tarjoto v. Lane County, 34 Or LUBA 124 (1998), Smith v. Jackson County, 37 Or LUBA 779 (2000), Masson v. Multnomah County, 48 Or LUBA 100 (2004); and Porter v. Marion County, 56 Or LUBA 635(2008)." File Nos.: 247 -15 -000222 -LR, -000430-A, and -000633-A Page 10 LandWatch argues that ORS 92.017 is not applicable to determining legal lots of record. Referencing quoted sections of Kishpaugh, LandWatch interprets LUBA as stating the statute only applies to subdivisions and partitions, not to parcels created by deed and "has nothing to do with lots of record." LandWatch claims in this case with TID the following: ORS 92.017 operated exactly as planned with OWRD conveyed to TID the number of parcels it wished to convey. Deschutes County did not tell OWRD how many parcels to convey; OWRD simply chose to convey a single parcel created by deed, and TID simply chose to accept the parcel created by deed. The conveyance is a matter of real estate law in which the county plays no part. The county simply applies its zoning regulations to properties once they have been created. Furthermore, LandWatch argues the applicants in the Kishpaugh case are fundamentally different from those individuals ORS 92.017 intends or "adopted to protect." LandWatch states that "the Legislature adopted ORS 92.017 to protect owners of multiple units of land from local governments who might try to merge the... Tots without their consent." The landowner in Kishpaugh is unlike TID, owning only a single parcel. Regarding LUBA's Thomas, LandWatch also claims the Hearings Officer misinterpreted the case. Further, LandWatch states that Thomas is not applicable to the TID case and states, "[C]ounties do not have the authority to adopt local laws to say the parcels do not qualify as separate units of land in that county." Nevertheless, referencing Weyerhaeuser Real Estate Development Co. v. Polk County, 63 OR LUBA 393, 399, aff'd, 246 Or App 548 (2011), LandWatch states that the parcels conveyed in the early twentieth century in TID's case do not exist separately. LandWatch states, "Parcels cannot be nested within other parcels as a matter of topology." The fifth assignment of error discusses LUBA's Weyerhaeuser case. Additionally, the sixth assignment of error addresses the elimination of parcel boundaries through the conveyance in 1988. Staff Recommendation: As noted above, under the first assignment of error, the creation of the parcel in 1988 was done through a legal and effective deed. However, applying County Code at the time in 1988, the conveyance did not create a legal lot of record in its current configuration. Prior to 1988 and prior to local land use laws, the subject property consisted of several units of land, with discrete boundaries, that were lawfully created through deeds and patents. As confirmed by the Hearings Officer and supported by LUBA's Kishpaugh and Thomas, units of land lawfully created by conveyances are protected by ORS 92.017 and remain as such unless their boundaries are vacated for further divided "as provided by law." As addressed in the aforementioned assignment of error, the analysis of LUBA's Kishpaugh and Thomas, among other noteworthy cases, coupled with review of ORS Chapter 92, is inherently legal in nature. The Hearings Officer's decision is sufficiently thorough and accurate in the review. Therefore, staff recommends the Board adopt the Hearings Officer's findings on this issue. 5. The Hearings Officer also failed to apply the holding in Weyerhaeuser Real Estate Development Co. v. Polk County, 63 OR LUBA 393, 399, aff'd, 246 Or App 548 (2011). Hearings Officer: Together with the sixth assignment of error discussed below, the Hearings Officer reviewed the argument of eliminating the verified lots of record as provided by law (ORS 92.017). The Hearings Officer offers the following footnote regarding LUBA's Weyerhaeuser decision: File Nos.: 247 -15 -000222 -LR, -000430-A, and -000633-A Page 11 ...the Oregon Court of Appeals held that a partition served to vacate subdivision lot lines because when the partition was approved in 1983 the county had authority to eliminate subdivision lot lines through replatting and partition approval. With respect to the effect of ORS 92.017, the court held that ORS 92.017 did not have the effect of restoring lots that had been vacated when the lots were consolidated by a partition. The appellant also presents arguments regarding Oregon Natural Desert Association (ONDA) v. Harney County, 65 Or LUBA 246 (2012). The Hearings Officer found "appellant's reliance on that decision is misplaced" and provided the following statement: The issue in that case was whether the county erred in approving a dwelling on an EFU- zoned parcel that the petitioner argued was part of a larger tract with which it was consolidated as a result of a previous approval of a lot -of -record dwelling. LUBA held that while a county can require lot consolidation as a condition of dwelling approval, such dwelling approval does not itself serve to eliminate lot lines. LUBA did not cite or make any reference to its decision in Thomas. Applicant: Tumalo Irrigation District points out that the Oregon Court of Appeals did not follow the reasoning held by LUBA regarding "lots cannot exist inside a parcel." The Court of Appeals, TID argues, found that through, as provided by law at that time, a partition plat, vacated the previously established lot lines. Furthermore, TID argues the following regarding the LUBA Weyerhaeuser decision: It determines the legal effect of a partition plat on subdivision lots; not the legal effect of recording a deed on parcels created by deed. The boundaries of the Weyerhaeuser lots were eliminated by a lawful partition approved before ORS 92.017 was adopted. In the TID case, the deed to TID was not a lawful means of dividing land and ORS 92.017 was in effect and told TID that the historic lot boundaries would remain in place. Tumalo Irrigation District continues by arguing the following: Finally, COLW has not established that the County must interpret its lot of record definition to eliminate the lot lines of parcels conveyed together on a single deed, including lots and parcels that comply with minimum lot size requirements, simply because the deed uses a single legal description to convey multiple parcels. LUBA's decision of the Thomas case requires that the County must identify some legal basis for treating this type of legal description differently than any other "so that future development rights do not hinge on apparently arbitrary differences in the wording or form of deed." See, page 14, Decision of Hearings Officer Green quoting Thomas. No such legal basis was found so the County interpreted its lot of record code to respect lawfully created lot lines. Regarding ONDA v. Harney County, TID concurs with the Hearings Officer and that the execution and recording of a deed does not vacate boundaries between lots or parcels. The applicant adds the following: Instead, it says that a document of some sort, such as a deed or survey, is required to effectuate a property line adjustment or another formal process that has the legal effect of vacating property lines and that consolidation will not be found to occur — even where consolidation was required by a prior approval granted by the County (a lot of record dwelling approval). File Nos.: 247 -15 -000222 -LR, -000430-A, and -000633-A Page 12 Appellant: LandWatch argues the 1988 deed that transferred land to TID had a similar effect of vacating lot line in the Weyerhaeuser 1983 partition. LandWatch states the foliowing: In both cases a predecessor in interest to an applicant undertook a voluntary affirmative action to create a new arrangement of lot or parcel boundaries of his own land. In both cases the voluntary affirmative action was in accordance with or as provided by law: in Weyerhaeuser, the action was a partition as provided by the local law OfPolk County; in this case the action was a deed validity executeddelivered, and recorded in accordance with the real property laws of the state of Oregon. In addition, LandWatch indicates that in both cases a metes -and -bounds property description was used to describe the "newly created paroe|(s)"vvithout reference to previous lot or parcel boundaries. LandWatch requests the Board to deny TID's request "to attain lot of record development rights to non-existent boundaries of parcels that are no longer discrete units of land for purposes of ORS 92.017." LandWatch references other LUBA cases including Atkins v. Deschutes County, 19 OR LUBA 84 (1990); Atkins v. Deschutes County, 102 Or. App. 208. 210 (1990), and ONDA v. Harney County, 65 Or LUBA 246 (2012). Staff Recommendation: In its current configuration, the subject property was conveyed in 1988 through a Statutory Quitclaim Deed and recorded in accordance with state of Oregon with Deschutes County. Prior to this transfer of land, the subject property consisted of several parcels that were lawfully created through deeds and patents at a time that predates local land use laws. As confirmed by the Hearings Officer and supported by LUBA's Weyerhaeuser, eliminating the discrete boundaries of these previous parcels can only occur as allowed through local land use laws. Similar to previous assignments of error addressing ORS Chapter 92 and LUBA's Kishpaugh and Thomas cases, this analysis requires legal interpretation. Staff recommends the Board adopt the Hearings Officer's findings, which are thorough and accurate in its review of the issue. 6. The Hearings Officer further erred in failing to recognize that a deed may eliminate parcel boundaries and that a lot line adjustment or plat is not necessary to do so. Hearings Officer: The Hearings Officer extensively reviewed this claim that the boundaries of the verified lots of record were eliminated via the 1988 conveyance. The record does not indicate the boundaries of the verified lots of record were removed via property line adUuotnnante, pertiUmne, or subdivisions. The Hearings Officer found several problems with the appellant's argunnent, which included a review of grantor's intent and development objective. The appellant argues grantor intent under the seventh assignment error discussed below. As addressed by the Hearings Offioar, in the Thomas case, the Wasco County code provisions at issue reiied on specific Ianguage of deeds and presumed grantor's intent. The Hearings Officer states the following regarding the Thomas decision noted above. .'LUBA'sThomas decision holds the intent with respect to a transfer of land is not relevant in determwhether a unit or units of land created thereby are separately developable under a county's land use regulations. The Hearings Officer's related arguments regarding ONDA v. Harney County are addressed in a previous assignment error in which the Hearings Officer found the appellant's reliance on that decision to be incorrect. File Nos.: 247 -15 -000222 -LR, -000430-A, and -000633-A Page 13 Applicant: Tumalo Irrigation DietrictargueeUlcdthe 1988 deed did not create or consolidate parcels. Lond\8atoh. TID argueS, did not cite an Oregon case or law indicating that a conveyance prior to the adoption of ORS 92.017 had a similar affect. The applicant refers to LUBA's Smith case where LUBA adhered to its holding in Kishpaugh as it discussed the conveyance of several parcels in one deed. Without a procedure specific to that county's code, the conveyance discussed in Smith did not vacate the property lines between the parcels. Regarding LUBA's {)NDA v. Harney County, TID addresses related arguments in the fifth assignment error above. The applicant argues that the conveyance of land in the 1988 deed did not vacate boundaries between lots or parcels. The applicant addresses additional arguments related to grantor intent found below with seventh assignment of error. Appellant: LandWatch argues that parcel boundaries of the verified lots of record were eliminated through the 1988 conveyance that described the property with a single metes -and - bounds description. The appellant argues the Hearings Officer and staff did not consider the State of Oregon's intent via the deed language. LandWatch presents arguments under two LUBA cases, in 9articu|ar. Weyerhaeuser, which is addressed in the fifth assignment of error above. The appellant argues the 1988 deed conveyance had a similar effect of eliminating property boundaries as in the Weyerhaeuser case. Additional arguments regarding ONDA v. Harney County are also addressed under the fifth assignment error. The appellant's seventh assignment error, discussed be!ovv, argues the grantor's intent is relevant in this case. Staff Recommendation: Adopt the Hearings Officer's findings on this issue. 7. The Hearings Officer mistakenly characterizes the issue of "grantor intent," to the extent that intent is relevant, the point is that deeds are presumed by Iaw to express the intent of the parties at the time of execution, and a deed conveying a single parcel conveys a single parcel. There was no basis for County Staff to assume that a deed conveying one parcel actually conveyed multiple parcels. Hearings Officer: As indicated above, the Hearings Officer extensively reviewed this argument together with the sixth assignment of error regarding the recognition that the 1988 deed eliminated boundaries of the verified lots of record without processed through a lot line adjustment or a plat for a subdivision or partition. The Hearings Officer refers to LUBA's Tho/neo, which finds the relationship between the intent of a grantor not be related or relevant to the development objective of the land as it relates to county land use regulations. The Hearings Officer states the foliowing: / find appellant in effect argues the county should adopt as a matter of policy and practice the very type of land use regulation found in Thomas to violate ORS 92.017 — i.e., a requirement that units of land be deemed consolidated for purposes of development based on the presence or absence of certain language in a conveyance and the grantor's intent presumed therefrom. The Hearings Officer finds that, if relevance is the grantor intent, the land conveyance through a single legal description simply suggests, "that the grantor intended to transfer a single unit of land... to be used for wintering deer habitat." Submitted arguments by both parties did not identify language in the 1988 deed that might suggest, "[T]he transferred property could not be recognized and used as multiple units of land." File Nos.: 247 -15 -000222 -LR, -000430-A, and -000633-A Page 14 Applicant: Tumalo Irrigation District states, "LUBA has already determined that relying on deed language and grantor intent to determine legal lot of record status is not legal." As noted in a foregoing assignment of arnor. TID concurs with the Hearings Officer's findings regarding LUBA's Thonnao, which addresses the grantor intent and development objective as it relates to land use regulations. Appellant: LandWatch argues that the grantor's intent in the 1988 deed to convey a single unit of land to TID is relevant. The appellant also argues the validity of grantor's intent under various other assignments of error as addressed above. Staff Recommendation: The intention of the grantor in the 1988 deed that transferred land from State of Oregon to TID has been reviewed extensively by the Hearings Officer and further addressed above. The Hearings Officer's decision is sufficiently thorough and accurate in the review. TheFafJna, staff recommends the Board adopt the Hearings Officer's findings on this issue. DEADLINE FOR LOCAL DECISION According to [)CC 22.20.040. lot of record determinations are exempt from the 150 -day time limit. Attachments 1. Notice of Appeal (File No. 247-1 2. Hearings Officer's Decision on Appeal (File No. 247-15-000430-A) 3. TID Procedural Issues Raised dated January 22, 2016 4. LandWatch Procedural Issues Response dated January 22, 201 5. 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W .-1.- = — 0 -- as irc5 0 .2 -8 °2 T) 2 = 0 -5 72 S -5 -Lt-'' 0D c co ( E) 2 CD 2 c = 0 5.- 0 ® a) a) 0 2 "al File Noo.:247-15-OOO222-LR.-0UO43O-A.and 'OOOG33-A DATE SUBMITTED: DESCHUTES COUNTY PLANNING DIVISION 117 NW Lafayette Avenue, Bend OR 97701 Phone: (541)388-6575 FAX: (541)385-1764 http://newberry.deschutes.org APPEAL APPLICATION FO APPELLANT: CEN`t a -l_. f-GQA! o r It ! J vE,Y MAILING ADDRESS' 1 W viel<560[2 v 4 UC -CITY FEE 'T< 4L PHONE: ( L11) 41 gG:1-1� L=4Q ST: a.ig ZIP: 477 2 LAND USE APPLICATION BEING APPEALED: 2c17- i 000 - 222- L.12 X47-1 -DQ Lt - A PROPERTY DESCRIPTION: T APPELLANT'S SIGNATURE S TAX LOT: '72?? c' DATE: /1/.2,3h. IT IS THE RESPONSIBILITY OF THE APPLICANT (APPELLANT) TO COMPLETE A NOTICE OF APPEAL AS SET FORTH IN CHAPTER 22.32 OF THE COUNTY CODE, "APPEALS." EVERY NOTICE OF APPEAL SHALL INCLUDE: 5. ,d= 1. A statement describing the specific reasons for the appeal; 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower Hearings Body's; 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board stating the reasons the Board should provide de novo review as provided in Section 22.32.027 of Title 22. SCAB 0 7 5 zpi5 The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANTS SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED FROM, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A 55.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANTS SHALL SUBMIT TO THE PLANNING DIVISION THE TRANSCRIPT NO LATER THAN THE CLOSE OF THE DAY 5 DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, IN ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. NOTICE OF APPEAL CENTRAL OREGON LANDWATCH APPEAL OF HEARINGS OFFICER DECISION IN FILE NO. 247 -15 -000222 -LR, 247-15-00430-A NOVEMBER 23, 2015 Central Oregon LandWatch appeals the attached Hearings Officer's decision to the Board of County Commissioners. This case concerns land conveyed in 1988 by the State of Oregon to Tumalo Irrigation District ("TID") for use and protection of Tumalo Reservoir and of surrounding lands for wildlife. Now, after 27 years, TID seeks to parcelize the area through recognition/verification of eight lots of record, some supposedly created nearly 100 years ago. The Hearings Officer decision finds that state law makes such parcels "immortal" in that they continue to exist even though the State of Oregon conveyed a single unit of land to TID, not any separate parcels, in 1988. We believe the Hearings Officer erred in ruling on the following issues: 1. The County in 2005 already rejected the Applicant's request for a lot of record determination and found that the subject property did not include any lots of record. The Hearings Officer ruled that the current re-application is allowed because new factual evidence was submitted. Whatever new factual evidence was presented here is irrelevant since the 2005 County decision was a legal determination that the State's conveyance of all the land in a single deed in 1988 meant that whatever separate historic parcels that they may have been no longer existed. No new facts are presented on that 1988 conveyance. 2. The Hearings Officer also erred in determining that the 1988 deed's provisions calling for protection of wildlife are irrelevant to the lot of record determination, despite the resulting fragmentation of the land that would occur with the creation/verification of eight lots of record - - such lot of record verification being a key prerequisite to development. 3. A fundamental error of the Hearings Officer is her finding that ORS 92.017 applies to this case and that it applies to parcels created by deed. ORS 92.017 provides: "A lot or parcel lawfully created shall remain a discrete lot or parcel, unless the lot or parcel lines are vacated or the lot or parcel is further divided, as provided by law." The applicable definitions in ORS 92.010 define "lot" as a unit of land created by a subdivision of land and "parcel" as a unit of land created by a partitioning of land. They do not include parcels created by deed, as is, for example, specifically included in the definition of "parcel" in ORS 215.010. ORS 92.017 is not applicable here, as a matter of state law, notwithstanding any County interpretations of "parcel" or relevant policies. 4. The Hearings Officer also erred in her interpretation of LUBA's decisions in Kishpaugh v. Clackamas County, 24 Or LUBA 160 (1992), and Thomas v. Wasco County, 58 Or 1 LUBA 452 (2009), as holding that ORS 92.017 applies to historic lots created by deed. Parcels created by deed do not persist through time but arise and fall away based on private transactions, and it is not for the County to say that a deed conveyed something that it did not. 5. The Hearings Officer also failed to apply the holding in Weyerhaeuser Real Estate Development Co. v. Polk County, 63 Or LUBA 393, 399, aff'd, 246 Or App 548 (2011). That conveyance of a discrete lot or parcel cannot include within it other discrete lots or parcels. 6. The Hearings Officer further erred in failing to recognize that a deed may eliminate parcel boundaries and that a lot line adjustment or plat is not necessary to do so. 7. The Hearings Officer mistakenly characterizes the issue of "grantor intent," to the extent that intent is relevant, the point is that deeds are presumed by law to express the intent of the parties at the time of execution, and a deed conveying a single parcel conveys a single parcel. There was no basis for County Staff to assume that a deed conveying one parcel actually conveyed multiple parcels. For the above reasons, we believe the Board should review the lower decision of the Hearings Officer, though we do recognize that virtually all of the issues are matters of interpretation of state law and of decisions of LUBA and the Oregon Court of Appeals. If the Board grants review, de novo review is desired so that the County Board will have access to any relevant information it may require. 2 DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: 247 -15 -000 -222 -LR, 247-15-00430-A APPLICANT/ PROPERTY OWNER: Tumalo Irrigation District 64697 Cook Avenue Bend, Oregon 97701 APPLICANT'S ATTORNEY: Liz Fancher 644 N.W. Broadway Street Bend, Oregon 97703 APPELLANT: PROPOSAL: Central Oregon LandWatch 1539 N.W. Vicksburg Avenue Bend, Oregon 97703 Appellant appeals from an administrative determination that a 755 -acre property zoned OS&C, FP, EFU-TRB, LM, WA, and SBMH consists of eight lots of record and four areas not considered lots of record. STAFF REVIEWER: Cynthia Smidt, Associate Planner HEARING DATE: September 8, 2015 RECORD CLOSED: October 2, 2015 1. APPLICABLE STANDARDS AND CRITERIA: A. Title 17 of the Deschutes County Code, the Subdivision/Partition Ordinance * Section 17.08.030, Definitions Generally B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.04, Title, Purpose and Definitions * Section 18.04.030, Definitions 2. Chapter 18.08, Basic Provisions * Section 18.08.010, Compliance C. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.04, Introduction and Definitions TID Lot of Record 247 -15 -000222 -LR, 247-15-000430-A Page 1 of 16 * Section 22.04.020, Definitions 2. Chapter 22.20, Review of Land Use Action Applications * Section 22.20.040, Final Action in Land Use Actions 3. Chapter 22.28, Land Use Action Decisions * Section 22.28.040, Reapplication Limited 4. Chapter 22.32, Appeals * Section 22.32.010, Who May Appeal * Section 22.32.015, Filing Appeals * Section 22.32.020, Notice of Appeal * Section 22.32.027, Scope of Review * Section 22.32.030, Hearing on Appeal D. Oregon Revised Statutes 1. Chapter 92, Subdivisions and Partitions * ORS 92.010, Definitions for ORS 92.010 to 92.192 * ORS 92.017, When Lawfully Created Lot or Parcel Remains Discrete Lot or Parcel 2. Chapter 197, Comprehensive Land Use Planning * ORS 197.015, Definitions for Chapters 195, 196 and 197 3. Chapter 215, County Planning; Zoning; Housing Codes * ORS 215.010, Definitions * ORS 215.427, Final Action on Permit or Zone Change Application II. FINDINGS OF FACT: A. Location: The subject property does not have an assigned address. It is identified as Tax Lot 7891 on Deschutes County Assessor's Map 16-11 and is located between Bend and Sisters.' B. Zoning and Plan Designation: The majority of the subject property is zoned Open Space and Conservation (OS&C). Some areas on the property are zoned Flood Plain (FP), Exclusive Farm Use — Tumalo/Redmond/Bend Subzone (EFU-TRB), and Forest (F-1 and F-2). Portions of the property are subject to three combining zones -- Wildlife Area Combining Zone (WA) to protect portions of the Tumalo Deer Winter Range. Sensitive Bird and Mammal Habitat (SBMH) to protect raptor nest sites, and Landscape As noted in the administrative decision, the applicant's lot -of -record verification request included only part of Tax Lot 7891, but the decision included the entire tax lot. TID Lot of Record 247 -15 -000222 -LR, 247-15-000430-A Page 2 of 16 Management (LM) to protect scenic views. C. Site Description: The subject property is approximately 755 acres in size,2 and irregular in shape. The administrative decision concluded the property includes eight lots of record and four areas that are not lots of record. The record indicates the eight verified lots of record range in size from 20 acres to 160 acres.3 D. Surrounding Zoning and Land Uses: The subject property is surrounded by sparsely developed rural land. To the west are large tracts of public land zoned Forest (F-1). To the north are Iarge tracts of public and private land zoned F-1 and F-2. To the east is land zoned C}S&C. EFU-TRB, and Multiple Use Agriculture /&1UA'10\. To the south is land zoned OS&C and F-1. E. Procedural History: Tumalo Irrigation [)iathot (hereafter "TID" or "applicant") acquired the subject property from the State of Oregon in 1988. In 2004. the applicant requested a lot -of -record verification for the subject property. By an administrative decision dated March 23, 2005 (LR -04-37), the county determined that Tax Lot 7891 did not constitute a lot of record. In September of 2005. the county granted approval of three lot line adjustments affecting the subject property (LL -05-71, LL -05-89, and LL -05-101). In those decisions the county again stated Tax Lot 7891 was not a lot of record by itoe|f, but rather was part of a lot of record consisting of Tax Lot 7891 owned by T|D, and four tax lots owned by the State of Oregon: Tax Lot 8400 on Assessor's Map 16-11; Tax Lot 2100 on Assessor's Map 17-11; Tax Lot 600 on Assessor's Map 17.11-04A; and Tax Lot 4OOOMAssessor's Map 1O-11'33.4 On April 22, 2015, the applicant submitted the subject application seeking lot -of -record verification for five separate |ota, and including new information not in the record of the 3005 lot -of -record application. The application was deemed complete on May 23, 2015. Under Section 23.20.040 of the county's land use procedures Ordinonce, the application is not subject to the 150 -day period for issuance of final local land use decision because it involves a lot -of -record determination. On July 27, 2015, the Planning Division issued an administrative decision determining that the subject property includes eight lots of record and four additional areas not recognized as Iots of record. On August 7, 2015, Central Oregon LandWatch (hereafter^LandVVmtnh^ or "appellant") filed an appeal of the administrative decision. On September 8, 2015, the Hearings Officer held a public hearing on the appeal. At the hearing, the Hearings Officer received testimony and evidence, Ieft the written evidentiary record open through September 29, 2015, and allowed the applicant through October 6, 2015 to submit final argument 2 Appellant states the property has 930 acres. Hovvever, assessor's data in the record shows the property is75478acres insize. «The minimum lot size in the OS&C and FP Zones is 80 acres. Figure 6 of the administrative decision depicts the twelve units of land identified in the administrative daoision, including the eight units recognized as Iots of record (Lots 1-8) and the four units not recognized as Iots of record (Lots 9-12). Figure 6 indicates only three of the verified lots of record — Lots 1, 2 and 5) are at least 80 acres in size. 4 The requested lot line adjustments also included Tax Lot 500 on Assessor's Map 17-11-04A which the county found was a lot of record. TID Lot of Record 247 -15 -000222 -LR. 247-15-000430+4 Page 3 of 16 pursuant to ORS 197.763. The applicant submitted its final argument on October 2, 2015, and the record closed on that date. F. Proposal: Appellant appeals from the administrative decision determining that the subject property includes eight lots of record and four areas that are not lots of record. G. Public Agency Comments: The record indicates the Planning Division did not send notice of the applicant's proposal or the appeal to any public or private agencies. H. Public Notice and Comments: The Planning Division mailed individual written notice of the appeal hearing to all parties to the administrative proceeding. The record indicates this notice was mailed to six parties. In addiUon, notice of the appeal hearing was published in the Bend "Bulletin" navvapapar, and the subject property was posted with a notice of proposed land use action sign. As of the date the record in this matter dosed, the county had received eleven letters from the public in response to these notices. In odditiOn, five members of the public testified at the hearing. Public comments are addressed in the findings below. III. CONCLUSIONS OF LAW: A. Preliminary Issue. FINDINGS: As discussed in the Findings of Fact above, in 2005 the applicant requested a lot - of -record determination and the county found the subject property did not include any lots of record. Opponents argue the county should not consider the subject application in light of its 2005 decision. Section 22.28.040 of the land use procedures ordinance states in relevant part A. If a specific application is denied on its merits, reapplication for substantially the same proposal may be made at any time after the date of the final decision denying the initial application. B. Notwithstanding DCC 22.28.040(A), a final decision bars any reapplication for a nonconforming use verification or for a determination on whether an approval has been initiated. A lot of record determination shall be subject tmreapplication under DCC 32.20.U4U(A) only if the apphcant presents new factual evidence not submitted with the prior application. (Emphasis added.) The applicant's burden of proof includes new evidence consisting of land conveyances that were not part of the record. or considered in the deoiSion, for the 2005 lot -of -record determination. Therefore, the Hearings Officer finds that under Section 22.28.040(B) the county may consider the subject lot -of -record verification request and is not bound by the 3005 determination. B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.32, Appeals TID Lot of Record 247 -15 -000222 -LR, 247-15-000430-A Page 4 of 16 a. Section 22.32.010, Who May Appeal A. The following may file an appeal: 1. A party: . . . FINDINGS: The Hearings Officer finds appellant is entitled to appeal because it was a party to the administrative proceedings, having submitted written testimony therein. b. Section 22.32.015, Filing Appeals A. To file an appeal, an appellant must file a completed notice of appeal on a form prescribed by the Planning Division and an appeal fee. FINDINGS: Appellant submitted a completed notice of appeal form and narrative describing the bases of the appeal. The record indicates appellant paid the required appeal fee. B. Unless a request for reconsideration has been filed, the notice of appeal and appeal fee must be received at the offices of the Deschutes County Community Development Department no later than 5:00 PM on the twelfth day following mailing of the decision. If a decision has been modified on reconsideration, an appeal must be filed no later than 5:00 PM on the twelfth day following mailing of the decision as modified. Notices of Appeal may not be received by facsimile machine. FINDINGS: Appellant filed its notice of appeal on August 7, 2015, within twelve days of issuance of the administrative decision on July 27, 2015.5 c. Section 22.32.020, Notice of Appeal Every notice of appeal shall include: A. A statement raising any issue relied upon for appeal with sufficient specificity to afford the Hearings Body an adequate opportunity to respond to and resolve each issue in dispute. FINDINGS: The narrative attached to appellant's notice of appeal states in relevant part: "County Staff erred in determining that there are eight separate lots of record on the subject property. There is also no basis for TID's claim of five separate lots of record. The ownership history of the subject lands does not support a finding that there are any lots of record on the subject property. ORS 92.017 does not act retroactively to resurrect historical conveyances of the 5 The administrative decision is dated June 27, 2015. However, the record indicates the correct date is July 27, 2015. TID Lot of Record 247 -15 -000222 -LR, 247-15-000430-A Page 5 of 16 subject lands in the early 1900s, but concerns the rights acquired by the current landowner. The State of Oregon in 1988 only conveyed a single parcel to the Applicant TID. Further, patent deeds meet neither definition of lot' or 'parcel' and thus cannot be lots of record under DCC 18.040.030. This conveyance also did not transfer the full bundle of rights to the property to TID but imposed use restrictions and retained reversionary rights. TID has no right to seek division of the land into parcels as lots of record. Appellant reserves the right to raise further appeal issues before the Hearings Officer." The Hearings Officer finds this statement is sufficient to identify the bases for the appeal. d. Section 22.32.027, Scope of Review A. Before Hearings Officer or Planning Commission. The review on appeal before the Hearings Officer or Planning Commission shall be de novo. FINDINGS: The Hearings Officer finds de novo review means I must consider both the record made during the administrative proceedings and the record on appeal. e. Section 22.32.030, Hearing on Appeal A. The appellant and all other parties to the decision below shall be mailed notice of the hearing on appeal at least 10 days prior to any de novo hearing or deadline for submission of written arguments. B. Except as otherwise provided in DCC 22.32, the appeal shall be heard as provided in DCC 22.24. The applicant shall proceed first in all de novo appeals. C. The order of Hearings Body shall be provided as provided in DCC 22.24.020. D. The record of the proceeding from which the appeal is taken shall be a part of the record on appeal. FINDINGS: The record indicates notice of the appeal hearing was mailed to all parties to the administrative proceedings at least ten days prior to the hearing. The appeal hearing was conducted in accordance with the procedures set forth in Chapter 22.24 of the procedures ordinance, and the record in this appeal includes the record made during the administrative proceedings. Therefore, the Hearings Officer finds the hearing complied with this section. TID Lot of Record 247 -15 -000222 -LR, 247-15-000430-A Page 6 of 16 C. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance FINDINGS: The applicant requested verification of five lots of record on a portion of Tax Lot 7891. As discussed in the Findings of Fact above, the administrative decision analyzed Tax Lot 7891 in its entirety and concluded it is comprised of eight lots of record and four additional areas not considered lots of record. The county analyzed the entire tax lot because of what it characterized as "the overlap of historic transactions" reviewed in the decision. Neither appellant nor the applicant objected to or appealed the administrative decision's expansion of the property subject to the lot -of -record verification. 1. 1988 Deed. Appellant and other opponents argue the county cannot approve TID's lot -of - record verification request because such verification will permit development of the subject property in a manner inconsistent with the 1988 deed by which TID obtained the subject property and the provisions of the WA Zone establishing protections for wintering deer habitat. A copy of the deed is included in the record and is identified as Document Number 88-20572, recorded at Volume 170, Page 0581, of the Deschutes County deed records. The deed states in relevant part: "The State of Oregon . . Grantor, releases and quitclaims to Tumalo Irrigation District . . Grantee, all right, title, and interest in and to the following described real property . . so Ionq as said property is held in public ownership and used as a Winter feedinu area for wildlife satisfactory to The Oregon Department of Fish and Wildlife„ When said property is no longer owned by Tumalo irrigation District or another public body, or is no longer used for public purpose including use as a Winter feeding area for wildlife satisfactory to the Oregon Department of Fish and Wildlife, the interest of the Grantee, or its assigns, shall automatically terminate and revert to the Grantor. The true consideration of this conveyance is other good and valuable consideration promised, including a commitment by Tumalo Irrigation District to involve local residents and the community before making decisions on use and management of the land or granting easements. This instrument will not allow use of the property described in this instrument in violation of applicable land use laws and regulations. Before signing and accepting this instrument, the person acquiring fee title to the property should check with the appropriate city or county planning department to verify approved uses." (Emphasis added.) The Hearings Officer finds the above -underscored deed restrictions relate to ownership and use of the subject property.6 However, deed restrictions are not enforceable by the county unless they are required by a condition of land use approval which is not the case here. These restrictions, and related reversionary clauses, are only enforceable by the parties to the transaction. Moreover, the provisions of the WA Zone apply to development and divisions of land within that zone and not to lot -of -record determinations. 6 The Hearings Officer notes the 1988 deed's legal description expressly reserves to the state all minerals on the property and the right to make use thereof, including "prospecting for, exploring for, mining, extracting, reinjecting, storing, drilling for, and removing such minerals, materials and geothermal resources." Any such mining activity would require land use approval. TID Lot of Record 247 -15 -000222 -LR, 247-15-000430-A Page 7 of 16 Appellant also argues the administrative decision erred in finding any lots of record on the subject property because the 1988 deed conveyed the property by a single metes -and -bounds description, set forth in Exhibit A to the deed. The primary question in this appeal is the effect of the 1988 deed. In order to address that question, the Hearings Officer must examine the relevant county land use regulations and prior decisions interpreting them, applicable statutory provisions, and relevant case law. 2. Ordinance Provisions. Chapter 18.08 of the Deschutes County Code, Basic Provisions, states in Section 18.080.010: A. A lot may be used and a structure or part of a structure may be constructed, reconstructed, altered, occupied or used only as DCC Title 18 permits. No new structure shall be constructed on any lot of less area than the minimum for the zone in which it is located, except as provided by DCC Title 18 and ORS 215.203, et. seq. Title 18 does not expressly require lot -of -record verification as a prerequisite to development. Nevertheless, the Hearings Officer is aware the county has established such a requirement through policies and practices. Specifically, the county: (1) does not approve or recommend approval of a land use application without first determining that the subject property consists of one or more lots of record; (2) requires an applicant for land use approval to demonstrate the property consists of one or more lots of record; and (3) if there is a question about the property's lot -of -record status, requires an applicant to submit a lot -of -record verification application prior to, or with, an application for development approval under Title 18 or an application for approval of a subdivision, partition, or lot line adjustment under Title 17, the county's subdivision/partition ordinance. Both Titles 17 and 18 address lots of record, but with different terminology. Section 18.04.030 defines "lot of record" in relevant part as follows: A. A lot or parcel at least 5,000 square feet in area and at least 50 feet wide, which conformed to all zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel was created, and which was created by any of the following means: 1. By partitioning land as defined in ORS 92; 2. By a subdivision plat, as defined in ORS 92, filed with the Deschutes County Surveyor and recorded with the Deschutes County Clerk; 3. By deed or contract, dated and signed by the parties to the transaction, containing a separate legal description of the lot or parcel, and recorded in Deschutes County if recording of the instrument was required on the date of the conveyance. If such instrument contains more than one legal description, only one lot of record shall be recognized unless the legal descriptions describe lots subject to a recorded subdivision or town plat; 4. By a town plat filed with the Deschutes County Clerk and recorded TID Lot of Record 247 -15 -000222 -LR, 247-15-000430-A Page 8 of 16 in the Deschutes County Record of Plats; or 5. By the subdividing or partitioning of adjacent or surrounding land, leaving a remainder lot or parcel. (Emphasis added.) Section 17.08.030 includes the following definition for purposes of subdivisions and partitions "Lawfully Established Unit of Land" means: 1. A lot or parcel created pursuant to ORS 82.010 to 92.190, or the provisions of this code; or 2. Another unit of land created: A. In compliance with all applicable planning, zoning, and subdivision or partition ordinances and regulations; or B. By deed or land sales contract, if there were no applicable planning, zoning or subdivision or partition ordinances or regulations. Both defiiti nize as legal lots those units of land created by subdivisions, podbiono, and conveyances.' The Hearings Officer is aware that by policy and practice, the county has recognized additional categories of lots of record not expressly included in the definition in Section 18.04.030. Exhibit "A" to the applicant's September 22, 2015 post -hearing submission is a June 13, 1890 memorandum from former principal planner Kevin Harrison stating a legal lot of record includes: • a lot or parcel for which the county has issued a building or septic permit; and • a lot or parcel that was "developed" prior to the county's involvement in the building permit process — i.e., prior to 1972 for septic peOnitG, and prior to 1975 for building permits. In addition, the Hearings Officer is aware the county has recognized another lot -of -record category through policy and practice: a "remainder" lot or parcel created through conveyances of all surrounding land recorded before the effective date of the county's subdivision and partition ordinances.8 E.g., Korish (A-10-3, LF< -10-2). Finally, both Titles 17 and 18 address lot line adjustments in their "partition" definitions with identical language inSections 17.O8.O3Oand 19.O4.O3O.respectively, oofollows: "Partition land" means to divide land into two or three parcels of land within a calendar year [but] does not include . . . an adjustment of a property line by the rThe Hearings Officer is aware the county has interpreted the term ^nreatad^foxpurposoo of both the legal lot provisions to signify the point in time when a unit of land was subdivided or partitioned, or when it first was described by itself in a conveyance. 8 Those dates are 1970 for PL'2, the first subdivision ordinance, and April 5, 1977 for PL'7, the first partition ordinance. TID Lot of Record 247 -15 -000222 -LR, 247-15-000430-A Page 9 of 16 relocation of a common boundary where an additional unit of land is not created and where the existing unit of land reduced in size by the adjustment complies with any applicable zoning ordinance. Section 17.08.030 also defines "property line adjustment" as "the relocation of a common property line between two abutting properties." In his aforementioned 1990 memorandum, Kevin Harrison stated the county's policy with respect to lot line adjustments as follows: "A policy dated March 19, 1984, deals with Lot Line Adjustments between two legal lots which are both substandard in size. I believe the policy states that Lot Line Adjustments are OK as long as there is no net change in either lot, and which involves no more than 10% of the largest lot. I believe the first part of the policy is reasonable and defensible (no lot is made more non -conforming), the second is not (if there is no net change, why should we care?). As you recall, there was some controversy regarding the distinction between Lot Line Adjustments and consolidations. I would like to put that discussion on the back burner, do some more research, and bring it back some time in the future." However, as the applicant notes in its September 22, 2015 post -hearing submission, 2005 House Bill 2755, effective January 1, 2006, amended the definition of "property line adjustment" in ORS 92.010 to include the "elimination" of a common property line between abutting properties. Based on the foregoing discussion, the Hearings Officer finds the primary distinction between the legal lot provisions in Titles 17 and 18 is that the lot -of -record definition in Title 18 addresses the developability of property — i.e., it establishes a minimum lot size of 5,000 square feet, a minimum width of 50 feet, and a requirement that separately -described lots or parcels created by conveyance be deemed consolidated unless the lots are described by reference to a recorded subdivision or town plat. 3. Administrative Decision. The administrative decision contains a detailed recitation of the sequential land conveyance history of Tax Lot 7891, illustrated in six figures included in the decision. Figure 6 depicts the boundaries of the verified lots of record and areas not constituting lots of record. The decision includes the following relevant analysis: "Based on the sequential conveyances of land, staff finds the subject property (tax lot 7891) wholly contains eight separate legal lots of record, five of which the applicant requested verification. The eight legal lots of record are shown on Figure 6 as Parcels 1 through 8, with Parcels 1, 2, 4, 5, and 6 being the five that the applicant requested verification. The noted legal lots of record are all at least 5,000 square feet in area and 50 feet wide. In addition, the sequential land conveyances for the eight legal lots of record occurred prior to the County's first subdivision ordinance and zoning ordinance (1970 and 1972, respectively). Since the applicant is not seeking to divide the subject property, the procedures set forth in the current county subdivision ordinance, Title 17, are not applicable. TID Lot of Record 247 -15 -000222 -LR, 247-15-000430-A Page 10 of 16 Two legal lots of record, Parcels 1 and 2 on Figure 6 were established with discrete boundaries in federal conveyances from 1909 and 1910, respectively. These parcels have remained unchanged since first established. Although the two parcels were included in a single deed from 1913, the transaction did not eradicate the parcels' legally established boundaries (see comments below). Parcels 3 and 8 on Figure 6 were first established with discrete boundaries through two separate federal conveyances but were changed through transactions with the State of Oregon in 1914 and 1913, respectively. Both subsequent conveyances separated the parcels, leaving remnants not part of the subject property. Parcels 4, 5, 6, and 7 were first established with discrete boundaries through different federal conveyances but were changed through additional subsequent conveyances between 1912 and 1914. Some land transactions separated parcels and thus left a remnant of the parent parcels, such as Parcel 5, but were not altered further. Some remainder parcels were involved in additional land transactions such as Parcel 7. There are four units of land — Parcels 9, 10, 11, and 12 — shown on Figure 6 that are not recognized as separate legal lots of record. As stated previously, a 1988 conveyance of Parcel V (Fig. 4) separated four units of land — Parcels K, P, T, and S (Fig. 3) and thus created remnant parcels — Parcels W, X, Y, and Z shown on Figure 5. Parcels W, X, Y, and Z are not recognized as separate legal lots of record because the partition and zoning ordinances were in effect at the time of the 1988 conveyance. These parcels are portions of the legal lots identified as Parcels K, P, T, and S (Fig. 3). Most of the parcels reviewed here were included in subsequent deeds that described adjacent lands together in a single deed. Including the parcels in a single deed does not eradicate the boundary lines that legally established those properties in the past. Evidence was not found that indicated the subject legal lots of record were consolidated through a property line adjustment approval or platted as part of a subdivision or partition. In the decision LR -10-2 (A-10-3) and in LR -92-43, LR -92-44, LF? -92-46, and LR -92-47, Deschutes County Hearings Officers found that the mere inclusion in a single deed of multiple parcels lawfully created by conveyances did not result in the eradication of the parcels' previous legally established boundary lines. Furthermore, the remnant parcels reviewed here were first established as separate larger parcels with legally established boundaries, and were surrounded by legally established boundaries of other parcels. Although the remainder parcels left behind do not meet the strict definition contained in DCC 18.040.030(A)(5) because the adjacent or surrounding lands have not been subdivided or partitioned, once altered by subsequent conveyances the remnants become legal remainder parcels. In decision LR -10-2 (A-10-3), the County Hearings Officer articulated that remainder lots are surrounded by legally created lots. Staff relies on this determination to identify remainder parcels created by deed prior to partition and subdivision requirements." The administrative decision found the lots of record created by these conveyances remained separate and distinct units of land after the effective dates of the county's first subdivision and TID Lot of Record 247 -15 -000222 -LR, 247-15-000430-A Page 11 of 16 partition ordinances based on ORS 92.017 which states: A lot or parcel lawfully created shall remain a discrete lot or parcel, unless the lot or parcel lines are vacated or the lot or parcel is further divided, as provided by law. 4. Effect of ORS 92.017. The parties disagree as to whether ORS 92.017 applies to this case. Appellant argues the statute does not apply to parcels created by deed because the terms "lot" and "parcel" used in ORS Chapter 92 are terms of art meaning units of land created by subdividing or partitioning, respectively, and not by conveyance. ORS 92.010 defines "lot" and "parcel" as follows: "Lot" means a unit of land created by a subdivision of land. "Parcel" means a unit of land created by a partitioning of land. Appellant also notes the definition of "parcel" in ORS 215.010, unlike the definition in Chapter 92, includes a unit of land created by a deed or land sales contract. Appellant argues that because the "parcel" definition in ORS 215.010 was included in the same 1985 legislation (House Bill 2381) that adopted ORS 92.017, the clear legislative intent was to distinguish between "parcels" for purposes of Chapters 92 and 215, and therefore the legislature did not intend "parcels" subject to ORS 92.017 to include units of land created by conveyances. The applicant responds that ORS 92.017 applies to "historic lots created by deeds," relying primarily on two decisions interpreting the statute: Kishpaugh v. Clackamas County, 24 Or LUBA 164 (1992), and Thomas v. Wasco County, 58 Or LUBA 452 (2009). Each of those decisions is addressed in the findings below. Kishpaugh. The question in Kishpaugh was whether ORS 92.017 prevented the county from refusing to allow separate development of two units of land created by 1970 and 1971 land sale contracts, each of which created a parcel smaller than the 10 -acre minimum lot size in the applicable zone adopted in 1979. The contracts separately conveyed the two properties (Tax Lots 404 and 405) to the same parties. Because the two properties were in contiguous ownership at the time the minimum lot size was adopted, the county declined to recognize each lot as "separately developable" on the basis of a provision of its zoning code that stated: "Contiguous lots under the same ownership when initially zoned shall be combined, for the purposes of this Ordinance, when any of these lots do not satisfy the lot size requirement of the initial district. A lot or parcel which is a separate legal lot or parcel prior to the adoption of this provision shall remain a separate legal lot regardless of ownership." After an extensive review of the statute's legislative history, LUBA held: "The text of ORS 92.017, and its legislative history, make it clear that the functions of ORS 92.017 were (1) to prevent local governments from refusing to recognize lawful divisions of land such that lots and parcels could not be sold to third parties, and (2) to establish that the property lines established by such land divisions remain inviolate, absent the employment of a specific process to TID Lot of Record 247 -15 -000222 -LR, 247-15-000430-A Page 12 of 16 eliminate such property lines. * * * Nothing in either the text of ORS 92.017 or its legislative history suggests that all lawfully created lots and parcels must be recognized by local governments as being separately developable. In fact, the legislative history * makes it reasonably clear that the developability of such lots and parcels is to be determined with reference to planning and zoning standards. Accordingly, the county's determination that tax lots 404 and 405 are not separately developable * * * does not offend ORS 92.017." Thomas. In Thomas, the petitioner appealed from the county's legislative adoption of an amendment to its zoning ordinance. That provision stated certain contiguous lots and parcels nonconforming in size and "consolidated onto a single deed at any time" are thereby deemed "consolidated for development purposes." The petitioner argued the ordinance violated ORS 92.017. LUBA adhered to its holding in Kishpaugh, but held the ordinance at issue in Thomas did violate ORS 92.017, based on the following reasoning: "We agree with petitioner that, while the county almost certainly has a legitimate planning interest in encouraging the consolidation of substandard size lots for development purposes, the method it has employed in adopting WCZO 13.040(B) appears to employ an arbitrary and illegitimate means to achieve that purpose. The code provisions at issue in Kishpaugh and Campbell did not turn on deeds or the particular language of deeds, and the circumstances presented in those cases involved substandard size properties that were in common ownership at the time of the county's decision. In contrast, under WCZO 13.040(B), consolidation of properties for development purposes is based on whether those properties were at one time transferred on a single deed, and whether or not properties must be consolidated for development purposes depends in part on the specific language of those deeds. Further, WCZO 13.040(B) applies whether or not the affected properties are now separately owned. There are, it seems to us, several problems with the county's approach under WCZO 13.040(B). First, the deeds to which WCZO 13.040(B) will be applied are likely to have been written at a time when there was no general understanding that transferring more than one property in a single deed or failure to use separate headings or certain words in a deed that conveys more than one property would later result in a requirement that the properties transferred be developed together rather than separately. We agree with petitioner that placing dispositive significance on the presence or absence of separate headings in a deed, for example, appears to be arbitrary. We do not understand why the county believes that a deed that transferred five properties with separate metes and bounds property descriptions, but no separate headings, should result in all five properties being consolidated for development purposes but a deed that is identical except for the inclusion of separate headings escapes consolidation. Although it is not clear, the distinctions the county draws between deeds with TID Lot of Record 247 -15 -000222 -LR, 247-15-000430-A Page 13 of 16 separate headings and those without, and between deeds with separate property descriptions and those without, may be an attempt to discern and give effect to what the county presumes is the grantor's intent. The county may presume that if the deed includes separate headings, for example, the grantor intended that each property be separately developable, but if not, the grantor intended that all the transferred properties be consolidated for development purposes. However, if that is the basis for the distinctions the county has codified in WCZO 13.040(8), that basis also seems arbitrary and illegitimate. Nothing in the record or the county's brief explains why the county believes that giving effect to the grantor's presumed intent transferring properly has anything to do with ftrilhering_a legitimate land use planning objective. The effect of the grantor's intent in transferring property is a matter of real estate law, and there is no obvious connection to any county land use planning objective. Further, the grantor's intent in transferring property by deed is a question of fact in any particular case, and that can be finally resolved only in a judicial court. In most cases, the grantor's actual intent. if any. in transferring multiple contiguous properties regarding whether or not those properties should be 'consolidated' for development purposes will not be evident from the face of the deed, and judicial interpretation would be necessary to reach a final determination regarding intent. Finally, in any case, it is highly unlikely in any circumstance where WCZO 13.040(B) would be applied that the grantor formed any intent, one way or the other, regarding the future development of the properties transferred. For these reasons. if the distinctions drawn by WCZO 13.040(B) are based on the county's attempt to give effect to the grantor's presumed intent, that approach appears to have no relation to a legitimate planning objective. [Footnote omitted.] In sum, the county's apparent objective in encouraging the consolidation of substandard size lots for development purposes almost certainly serves a legitimate planning objective. There are a number of methods that the county can adopt to further that objective that are not based on deeds or the specific language of deeds. A relatively straightforward way would be to adopt code language that simply prohibits development of substandard size lots or parcels, with whatever exceptions the county deems appropriate. However, if the county continues to base its approach for consolidation of substandard size properties on the examination of deeds, the county must identify some legal basis for the distinction it draws, such that future development rights do not hinge on apparently arbitrary differences in the wording or form of deeds." (Emphasis added.) In his concurring opinion in Thomas, LUBA Board Member Holston stated in relevant part: "I believe it is extremely doubtful that counties ever had the authority to adopt local laws that dictated that parcels, which under Oregon real property law exist as legal separate units of land. do not qualify as separate units of land in that county. If counties ever had the authority to override the state's real property laws, it is clear that under ORS 92.017 they no longer have that authority. To simplify, WCZO 13.040(8) requires that contiguous substandard parcels that were created by deed before 1974 must be `considered one property for TID Lot of Record 247 -15 -000222 -LR, 247-15-000430-A Page 14 of 16 development purposes' if those contiguous substandard parcels were subsequently transferred by a single deed. See n WCZO 13.0400B(2)0) creates an exception to that rule where Yaill0fV/e deeds listing the properties included separate metes and bounds descriptions with a separate heading * * ° ' For all practical purposes, the county has adopted the very kind of real property law that ORS 82.0/7 was adopted to prohibit. * * * Whether a single deed that conveys more than one substandard parcel has separate rnetes and bounds descriptions and separate headina might have something /o do with whether the (/cod is effective to convey separate parcels, but it has absolutely nothing /o do with whether those parcels should be developed separately or together" (Emphasis added.) Analysis. The Hearings Officer finds that contrary to appellant's argunnert. LUBA's Kishpaugh and Thomas decisions make clear ORS 82.017 protects units of land lawfully created by conveyances. In other words, such units of land remain discrete lots or parcels under the statute unless their boundaries are vacated or further divided "as provided by law." The remaining question is whether the boundaries of the eight verified lots of record were vacated "as provided by law." There is no dispute the boundaries of these units of land were not vacated by subsequent subdivisions or partitions.9 Nor does the record indicate the boundaries were vacated by lot line adjustments as the three aforementioned lot line adjustments did not eliminate any lot |ineo.m Appellant argues the boundaries of the verified lots of record were vacated by the recording of the 1988 deed from the State of Oregon to TID which described the transferred property by a single metes -and -bounds description. Appellant asserts the language of the deed reflects the grantor's intent that the property be developed, if at all, as a single parcel. The Hearings Officer finds there are several problems with appellant's argument. Firot, as appellant acknowledges, LUBA'a Thomas decision holds the grantor's intent with respect to a transfer of land is not relevant in determining whether a unit or units of land created thereby are separately developable under a county's land use regulations. Nevertho|ooa, appellant argues the county's administrative decision erred in not concluding from "the plain language" of the 1988 deed that the state intended to convey — and TID to have -- only a single unit of land, and therefore the county must honor that intent by not recognizing multiple lots of record within the subject property. Appellant's September 8, 2015 submission contains a lengthy discussion of how grantor intent should be detennined, and concludes with the assertion that ORS 92.017 "was not enacted to contradict the unambiguous terms of deeds" such as the 1988 deed. | find appellant in effect argues the county should adopt as a matter of policy and practice the very * In WeyerhaeuserRee/ Estate Development Co.v. Polk County, 246 Or App 548 (2011). the Oregon Court of Appeals held that a partition served to vacate subdivision lot lines because when the partition was approved in 1983 the county had authority to eliminate subdivision lot lines through replatting and partition approval. With respect to the effect of ORS 92.817. the court held that ORS 92.017 did not have the effect of restoring lots that had been vacated when the lots were consolidated by a partition. 1° The applicant argues, and the Hearings Officer agrees, that these lot line adjustments could not have eliminated any lot lines inasmuch as in 2005. state law did not allow lot lines to be eliminated or lots consolidated through lot line adjustments. Such consolidation was not permitted until ORS Chapter 92 was amended by 2005 House Bill 2755 which took effect January 1, 2006. TID Lot of Record 247 -15 -000222 -LR. 247-15-000430+A Page 15 of 16 type of land use regulation found in Thomas to violate ORS 92.017 — i.e., a requirement that units of land be deemed consolidated for purposes of development based on the presence or absence of certain language in a conveyance and the grantor's intent presumed therefrom.11 8eoond, even assuming grantor intent is relevant in determining whether a conveyance served to vacate the boundaries of Iawfully created units of land, appellant has not demonstrated the 1988 deed in fact reflects the state's intent to prohibit recognition or development of multiple lots of record within the subject property. The description of the property through a single metes - and -bounds description suggests only that the grantor intended to transfer a single unit of land. And the aforementioned deed restrictions suggest the grantor intended for the transferred property to be used for wintering deer habitat. But neither appellant nor opponents have identified any language in the deed that suggests the state intended that the transferred property could not be recognized and used as multiple units of land. Fina||y, appellant argues that as a matter of Iaw, execution and recording of a deed serves to vacate previously existing lot or parcel buundmriea, relying on dicta in LUBA's decision in Oregon Natural Desert Association V. Harney C|0Unh/, 65 Or LUBA 246 (2012). The Hearings Officer finds appellant's reliance on that decision is misplaced. The issue in that case was whether the county erred in approving a dwelling on an EFU-zoned parcel that the petitioner argued was part of a larger tract with which it was consolidated as a result of a previous approval of a lot -of -record dwelling. LUBA held that while a county can require lot consolidation as a condition of dwelling mpprova|, such dwelling approval does not itself serve to eliminate lot lines. LUBA did not cite or make any reference to its decision in Thomas. 5. Conclusion. Based on the foregoing discussion, the Hearings Officer finds ORS 92.017 applies to and protects historic units of land lawfully created by conveyance(s) that predate the county's land use regulations. | further find there is no merit to appellant's argument that because of its language and presumed grantor intent, the 1888 deed had the legal effect of vacating the boundaries of the eight lots of record verified by the county's decision. IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby AFFIRMS the administrative decision on appeal. Dated this 12th day of November, 2015. Mailed this m day of November, 2015. Karen H. Green, Hearings Officer THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED BY A PARTY. The Hearings Officer finds 1 need not decide in this case whether that portiononcfPunagnsph(A)(3)oftho lot -of -record definition in Section 18.04.030 relating to specific deed language violates ORS 92.017. TID Lot of Record 247 -15 -000222 -LR, 247-15-000430-A Page 16 of 16 RECE VED Jb1 2 2 2016 UELIVERED BY: BEFORE THE BOARD OF COMMISSIONERS FOR DESCHUTES COUNTY, OREGON File: 247 -15 -000222 -LR, 247-15-000430-A, 247 -15 - Applicant: Tumalo Irrigation District Attorney Liz Fancher for Applicant: 644 NW Broadway Street Bend, Oregon 97701 541-385-3067 (telephone) 541-385-3076 (fax) liz@lizfancher.com Request: Lot of Record Determination Property: Tax Lot 7891, Assessor's Map 16-11-00 III • -A PROCEDURAL ISSUES RAISED BY TU LO IRRIGATION DISTRICT New Evidence This appeal is being heard on the record developed before the hearings officer and written arguments filed with the Board of Commissioners. New evidence is not allowed. DCC 22.32.027(B)(1); DCC 22.32.030(E). COLW accidentally sent new evidence to the County via e-mail with its January 11, 2016 written arguments and its attachments. The new evidence was included as a part of Attachment 2 which was labeled "Quitclaim deed State of Oregon to TID." I have contacted Carol Macbeth of COLW. COLW has no objection to removal of these documents from the record. A copy of my e-mail exchange with Ms. Macbeth is attached as Exhibit A of this document. The new evidence that should not be included in the record is: 1. Lot of Record Verification application filed by Barbara Tyler for Tax Lot 7891 2. July 8, 1988 letter from Anne W. Squier to William Young 3. Attachment A headed "Tumalo Reservoir Property" 4. Memorandum from Director (Water Resources Department) to Water Resources Commission for August 5, 1988 meeting 5. Attachment B "Tumalo Right -of -Way Easements" 6. Tax Lot Card for Tax Lot 500, 16-11-33 7. Tax Lot Card for Tax Lot 1900, 17-11-00 8. Tax Lot Card for Tax Lot 2100, 17-11-00 9. Tax Lot Card for Tax Lot 400, 16-11-33 10. Tax Lot Card for Tax Lot 8100, 16-11-00 Page 1 of 2— File 247 -15 -000222 -LR (COLW Appeal/TID Lot of Record) These documents have been scanned and posted on the County's website for review by the public. I have been told by County staff that they have not yet been presented to the Board. County staff has told me that these documents will not be presented to the Board for its consideration and will, therefore, not be included in the record. If for some reason these documents are placed before the Board, TID asks that they be rejected by the Board of Commissioners in their final decision. OAR 660-010-0025(1)(b)(items placed before and not rejected by the decision maker are a part of the record). Transcript Requirement COLW filed a transcript with the County on January 11, 2016, the date set for the receipt of written comments. DCC 22.32.024(B) says: "Appellants shall submit to the Planning Division the transcript no later than the close of the day five days prior to the date set for a de novo hearing, or, in on -the - record appeals, the date set for receipt of written argument." TID asks the Board to interpret this code requirement and determine whether COLW's filing was timely. The Board's interpretation of this issue will apply to future cases. TID reads DCC 22.32.024(B) as requiring that the transcript be filed five days prior to the date set for the receipt of written argument. In this case, that date was January 6, 2016. This reading is based on the following understanding of the structure of the quoted sentence: "Appellants shall submit to the Planning Division the transcript no later than the close of the day five days prior to[..] [A.] the date set for a de novo hearing, or, [B.] in on -the -record appeals, the date set for receipt of written argument." TID believes that this is the intended meaning of the code because it allows persons entitled to file comments the ability to use the transcript to prepare written arguments. If a transcript may be filed on the date comments are due, the transcript will have a limited value in the appeal process. If the Board finds that the transcript was not timely filed, the Board should comply with DCC 22.32.024(B) which says "an appellant's failure to provide a transcript shall cause the Board to decline to consider the appellant's appeal further and shall, upon notice mailed to the parties, cause the lower Hearings Body's decision to become final." Respectfully submitted this 22nd day of January, 2016. Liz Fancher, Attordey for TID Page 2 of 2 — File 247 -15 -000222 -LR (COLW Appeal/TID Lot of Record) Liz Fancher From: Sent: To: Cc: Subject: Liz, Carol Macbeth <carol @centraloregonlandwatch.org> Monday, January 18, 2016 11:38 AM Liz Fancher carol@centraloregonlandwatch.org; Paul Dewey; Bill Email; Ken Rieck; Cynthia Smidt Re: COLW Appeal of TID Lot of Record Approval The below is correspondence 6 days ago with Cynthia Smidt on this topic. 1 had not noticed you were not copied. As discussed below, we did not originally intend to submit these materials into the record. We have no objection to your asking Cynthia not to place them in the record. Best regards, Carol Macbeth Cynthia Smidt <Cvnthia.Smidt@deschutes.ore> Jan 12 (6 days ago) to Carol, Paul Carol, Regarding your submittal — The electronic version of Attachment 2 consisted of the 2004 application materials, which including the 88 deed. The paper version you dropped off only included the 88 deed. My guess is that the electronic version of Attachment 2 was an error and you only intended to attach the 88 deed. However, to err on the side of caution, we included the larger version (electronic) in the record. Deschutes County Web Site Cynthia Smidt, Associate Planner Community Development Department PO Box 6005 1 117 NW Lafayette Avenue Bend, Oregon 97708-6005 Tel: (541) 317-3150 www.deschutes.orecd From: Carol Macbeth [mailto:carol@centraloreg,onlandwa[ch.org] Sent: Monday, January 11, 2016 4:35 PM To: Cynthia Smidt Cc: Liz Fancher; Paul Dewey Subject: COLW, TID Lots of Record EXHIBIT A HI Cynthia, Carol Macbeth <carol@celimilurc,:lor4ildv,-,,tich.or2> Jan 12 (6 days ago) to Cynthia, Paul Cynthia, That will be fine, I was unable to send just the deed electronically, which accounts for the difference. Perhaps it will be just as well to have all in the record. Thanks, Carol Macbeth On Mon, Jan 18, 2016 at 10:57 AM, Liz Fancher <liz@lizfancher.com> wrote: Carol: I am writing because it appears you may have mistakenly filed new evidence with the County with your January 11, 2016 comments for the Board's on the record review of Karen Green's decision. I've attached a copy of the .pdf document you sent me, Cynthia Smidt and Paul Dewey. Your letter to the Board refers to Attachment 2 as a copy of the quitclaim deed to TID. The attachment you included with your e-mail to the County and my office refers to Attachment 2 as "Quitclaim deed State of Oregon to TID." Attachment 2, however, contains many additional documents you do not mention in your letter, e-mail and file name so I wondering if you included those documents accidentally. Some of the documents are in the record but I have not found the following documents in my copy of the record: 1. Lot of Record Verification application filed by Barbara Tyler for Tax Lot 7891 2. July 8, 1988 letter from Anne W. Squier to William Young 3. Attachment A headed "Tumalo Reservoir Property" 4. Memorandum from Director (Water Resources Department) to Water Resources Commission for August 5, 1988 meeting 5. Attachment B "Tumalo Right -of -Way Easements" 6. Tax Lot Card for Tax Lot 500, 16-11-33 7. Tax Lot Card for Tax Lot 1900, 17-11-00 2 8. Tax Lot Card for Tax Lot 2100, 17-11-00 9. Tax Lot Card for Tax Lot 400, 16-11-33 10. Tax Lot Card for Tax Lot 8100, 16-11-00 The document you referred to as the quitclaim deed also included the following documents I believe are a part of the record: 11. Tax Lot Card for Tax Lot 7891, 16-11-00 12. Tax Lot Card for Tax Lot 8400, 16-11-00 Would you please let me know if this was an error or whether you intended to file all of these documents with the County on January 11, 2016? If you intentionally filed documents 1-10, would you please advise me who filed the documents, when they filed the documents and with whom (or where in the County's electronic copy of the record I might find them)? Thank you, Liz Fa Liz Fancher, Attorney 644 NW Broadway Street Bend, OR 97703 541-385-3067 (telephone) CONFIDENTIALITY NOTICE: The information contained in this electronic mail transmission is confidential. This information is intended for the exclusive use of the addressee(s). If you are not the intended recipient, please notify the sender immediately by return email and you are hereby notified that any use, disclosure, dissemination, distribution (other than to the addressee(s)), copying or taking of any action because of this information is strictly prohibited. 3 Cynthia Smidt From: Sent: To: Cc: Subject: Attachments: Paul Dewey <pau|@d net> Friday, January 22, 2016 4:02 PM Cynthia Smidt Liz Fancher; Carol Macbeth TID LOR case LandVVatchTlDLOR8O[[|tron0122l6.pdf Hello Cynthia: Please provide to the Commissioners and include in the Record the attached letter and materials in response to TID's "PROCEDURAL ISSUES." Thanks, Paul Paul Dewey, Attorney at Law 1539 NW Vicksburg Ave. Bend, OR 97701 541'420'8455 pdeweV@bendcob|e.com IMPORTANT NOTICE: This message 15 intendedfor the use of the person or entity to whicIt is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employeeor agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination,distribution or copying of this information is STRICTLY PROHIBITED. If you have received this message by error, please notify us immediately and destroy the related message. Thank you. 1 Affpf5)4$ 41114' -... LAN DWATC H January 22, 2016 Board of County Commissioners 1300 NW Wall St. Bend, OR 97701 Cenuarycgor Re: File Nos. 247 -15 -000222 -LR, 247-15-000430-A, and 247-15-000633-A Response to "PROCEDU •L ISSUES RAISED BY TUMALO I GATION DIS * CT" D Commissioners: This letter is in response to T1D's request for dismissal of LandWatch's appeal for allegedly failing to file a transcript on time and with regard to a new evidence objection made by TID. The Board should not grant TID's motion to dismiss the appeal of LandWatch on the basis that dWatch's submittal of the script was allegedly late, First of all, dWatch was advised by County S on December 28 that delivery of the . script would be timely if delivered by January 11. See Exhibit A. LandWatch inquired again of the due date on Jan 4 and ; .ain we were told January 11. Exhibit B. We had difficulty g ng the 'pt done over the holidays since we didn't get the CD until December 29. Second, even if the transcript was "late." there is no basis in the Code for dis 'ssal of an aploh,:!il merely because a transcript is late. IKC 22.31024(R) provides for dismissal of an appeal only for "'failure to provide a transcript." There is r dispute but that the uscript was filed, that it was filed by the date specified by Staff, than TID received ii on the 11th, and that this was 11 days before T1D's final argument was due. Accordingly, 111) c ot claim, and does not claim, that it suffered any prejudice based on the timing of receipt of the LiLtnscript. It is also timely for the Board. Finally, with regard to TM's new evidence objection, only new evidence submitted on January 11 should not be included. If any of the evidence submitted on January 11 was submitted earlier, that evidence should remain in the record. Thank you for your consideration. Very truly yours, Paul Dewey, Executive Director Paul Dewe From: Sent: To: Subject: Cynthia Smidt <CynthiaSmidt@deschutes.org> Monday, December 28, 2015 4:17 PM Paul Dewey RE: TID Lot of Record It will be ready after 9:00 am tomorrow, From: Paul Dewey [mailto:paul@deweylaw.net] Sent: Monday, -mber 28, 2015 3:46 PM To: Cynthia Smidt Cc: carol@centraloregoniandwatch.org Subj : Re: TID Lot of Record Thanks Cynthia. How soon can I pick up a CD to get to a transcriptionist? Sent from my iPhone On Dec 28, 2015, at 2:50 PM, Cynthia Smidt <vnthia.Smtdtdethutes, Carol and Paul, As required by County e, a written tra ript of the prior hearing will need to be submitted by the first written period noted below (January 11). r wrote: Cynthia From; Cynthia Smidt Sent: Monday, December 28, 2015 2:36 PM To: c4rQl@KeritrOlPigg2DIMONtclIMS.1;Liz Fancher Cc: Sue Stinson; Paul Dewey (pauttixtewojavi.net) Subj TID Lot of R- 0. d Importance: High Carol and Liz, Re: TID Lot of Record After brief discussion in the hallway following the Board meeting, the following dates will be put on the Board Order: January 11, 2016 — written arguments from all parties January 25, 2016 — rebuttal arguments from the applicant Paul Dewe From: Sent; To: Subj By first comment period (Jan. 11). Cynthia Smidt <Cynthia.Smidt@deschutesxJrg› Monday, January 04, 2016 4:58 PM Paul Dewey RE: Transcript for TID LOR --Original Message ----- From: Paul Dewey [mailto:paul@deweylaw.netj Sent: Monday, January 04, 2016 3:54 PM To: Cynthia Smidt Subject: Transcript for TID LOR Hello Cynthia: Where there isn't going to be a hearing on this matter, when Is the transcript due? Thanks, Paul Sent from my iPhone Ex 0 ir17.EtlitVONa June 27, 2015 Tumalo Irrigation District 64697 Cook Avenue Bend, Oregon 97703 Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 http://www.co,deschutes.or.us/cdd/ RE: File No. 247 -15 -000222 -LR; Lot of Record Determination for of Property Identified on Deschutes County Assessor's Map 16-11-00, Tax Lot 7891 Dear Applicant: You submitted an application for a lot of record determination for part of the above referenced tax lot. You have requested this verification in order create a legal lot boundary' between the subject property owned by Tumalo Irrigation District and land owned by the State of Oregon. Although the request is for only a portion of the subject property, based on the overlap of historic transactions this decision reviews the legal status of the entire tax lot including the five lots you requested. The Planning Division has reviewed the information you submitted with the application along with federal land conveyance records, County Assessor's records, County Surveyor records, County Clerk deeds, and County building and land use permit information.' Based on this information, we have determined the subject property constitutes eight (8) legal lots of record, including the five (5) legal lots requested for review with the application. The subject property also includes four (4) areas that are not recognized as legal lots of record. Section 18.04.030 of the Deschutes County Zoning Ordinance defines a "lot of record" as: A. A lot or parcel at least 5,000 square feet in area and at least 50 feet wide, which conformed to all zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel was created, and which was created by any of the following means: 1. By partitioning land as defined in ORS 92; 2. By a subdivision plat, as defined in ORS 92, filed with the Deschutes County Surveyor and recorded with the Deschutes County Clerk; 3. By deed or contract, dated and signed by the parties to the transaction, containing a separate legal description of the lot or parcel, and recorded in Deschutes County if recording of the instrument was required on the date of the conveyance. If such instrument contains more than one legal description, only one lot of record 1 The land use history including past applications and County approvals may not have been relevant in this lot of record determination. ()utility .Servirpg Porformnd 7nith Pridp shall be recognized unless the legal descriptions describe lots subject to a recorded subdivision or town plat; 4. By a town plat filed with the Deschutes County Clerk and recorded in the Deschutes County Record of Plats; or 5. By the subdividing or partitioning of adjacent or surrounding land, leaving a remainder lot or parcel. B. The following shall not be deemed to be a lot of record: 1. A lot or parcel created solely by a tax lot segregation because of an assessor's roll change or for the convenience of the assessor. 2. A lot or parcel created by an intervening section or township line or right of way. 3. A lot or parcel created by an unrecorded subdivision, unless the lot or parcel was conveyed subject to DCC 18.04.030(B). 4. A parcel created by the foreclosure of a security interest. Deschutes County adopted its first zoning ordinance (PL -5) on November 1, 1972, which described minimum lot sizes for new parcels. This zoning ordinance was replaced in 1979 with PL -15. The subdivision ordinance of 1970, PL -2, regulated subdivisions less than 10 acres in size but did not regulate partitions. The partition ordinance (PL -7) was adopted in 1977, which described the criteria under which parcels could be partitioned (divided into three or less parcels). Land Use History and Public Comments The subject property and the surrounding area are in a Wildlife Area (WA) Combining Zone. In particular, the area is within the Tumalo Deer Winter Range. In part, the purpose of the WA Zone is to conserve the important wildlife resources of the county. When the State of Oregon conveyed the subject property to Tumalo Irrigation District in 1988 (see additional information below), the land transfer included limitations of the property requiring it to be "held in public ownership and used as a winter feeding area for wildlife satisfactory to the Oregon Department of Fish and Wildlife." Based on the wildlife protections of the WA zone and the 1988 deed, there is an unmistakable interest by the public in the subject property and surrounding area. Several written comments were submitted to the record that expressed two common concerns. One concern was about the Lot of Record Verification as requested. The other concern involved the wildlife protections noted above. In regards to the Lot of Record Verification, the common theme in the comments was that because the State of Oregon conveyed the entire property in a single deed in 1988, the legal lots of record reviewed here do not exist. Oregon Revised Statute (ORS) 92.017, as stated below, protects historic parcels created by deeds; in addition to, lots and parcels created by subdivisions or partitions. 92.017 When lawfully created lot or parcel remains discrete lot or parcel. A lot or parcel lawfully created shall remain a discrete lot or parcel, unless the lot or parcel lines are vacated or the lot or parcel is further divided, as provided by law. For property boundaries to be eliminated, supporting evidence of such action is required (e.g. consolidation through a property line adjustment or platting a subdivision or partition). As noted below, evidence was not found that indicates the subject legal lots of record were consolidated through a property line adjustment approval or platted as part of a subdivision or partition. Through various Lot of Record Verification decisions, Deschutes County Hearings Officers found that when a single deed includes multiple parcels that were lawfully created with discrete 247 -15 -000222 -LR, Tumalo Irrigation District Page 2 boundaries in previous conveyances, it did not result in the elimination of the previously established boundary lines (see LR -10 -2/A -1U-3. LR -92-43, LR -92-44, LR -92-46, and LR -92-47). Regarding the Tumalo Deer Winter Range noDcerns, staff recognizes that the 1988 conveyance from the State of Oregon to Tumalo Irrigation District includes limitations on the subject property. The Lot of Record \/ehfioohon, however, reviews the lawful creation of a lot or parcel and not necessarily the limitations placed on that lot or parcel. Nmverthe\esa, the importance of the 1988 conveyance may limit future development of the subject property and thus be considered as part of any proposed development of the property. County zoning also places limits on the property. Together with the WA Zone noted abova, a majority of the property is zoned Open Space and Conservation (C)8&C) and Flood Plain (FP). These twa zones have a common purpose of conserving importaiit scenic and natural resources. There are small areas in the northwestern region of the property that are zoned Forest Use /F1 and F2), zones that that are intended to preserve forest lands. A small region in the southeast is zoned Exclusive Farm Use (EFUTRB), a zone that is intended to preserve farmlands. According to the applicant's attorney, Liz Fancher, Tumalo Irrigation District "is not changing the use or management of the land." County records do not indicate that the applicant is seeking to divide or change the use of the subject property. Staff finds that no specific development of the property is proposed or approved under this lot of record decision. As such, Staff is unaware of any provisions of Title 17 or 18, not otherwise addressed in this deCieion, which are applicable to this decision. In addition, Staff is unaware any provision of the 1988 conveyance, Deschutes County Code, or state statute that pertains to this of record decision which is not otherwise addressed in this decision. Tax Lot 7891 History The following information is a sequential review of land conveyances in the area involving the subject property, tax lot 7891 of map 16-11-00 (index map). For reference, Figure 1 shows the tax lot in its current configuration. Figure 2 For the eight years between 1905 and 1912, numerous deeds and federal land grants were conveyed in the area. The deeds and land grants were dated and signed by the parties to the tranoaotion, containing a separate legal description of the paroe|s, and eventually recorded in Deschutes County. The first of these conveyances was through a U.S. federal land grant dated August 16, 1900. which conveyed 120 acres to Jerry Cramer, Assignee of Jesse Harcrow (Certificate Number 48) and was later recorded in Volume 1 of Patento. Page 422 at the Deschutes County Clerk's Office. This parcel is illustrated as Parcel A on Figure 2. Parcel A is described as the southeast quarter of the southwest quarter (SE IA SW 1/4) of Section 29 and the north half ofthe northwest quarter (NIA NW %) of Section 32, Township 16 South, Range 11 East of the WiUamette Meridian. This unit of land (Parcel A) is recognized as a legal lot of record. Parcel B. as shown on Figure 2, was originally part of a larger parcel, including thousands of acres first conveyed in 1905 to the State of Oregon in a United States land grant (Patent Number 1).2 In April 1907, the State of Oregon then conveyed to Frank V. Swisher the 80 acres shown as Parcel B (Fig. 2). This transaction was recorded in Volume 4, Page 65 in the Deschutes County Clerk's Office. Parcel B is described as the southeast quarter of the 2 This land grant was later recorded in Volume 2, Page 187 at the Deschutes County Clerk's Office 247 -15 -000222 -LR, Tumalo Irrigation District Page 3 southwest quarter (SE 1/4 SW 1/4) and the southwest quarter of the southeast quarter (SW 1/4 SE 1/4) in Section 33, Township 16 South, Range 11 East of the Willamette Meridian. This unit of land (Parcel B) is recognized as a legal lot of record. On November 15, 1907, 160 acres was conveyed to the George W. Wimer, Assignee of Jerry Cnanner, in a U.S. land grant (Certificate Number 77, Patent Number 142) and later recorded in Volume 1 of Patenta, Page 669 at the Deschutes County Clerk's Office. This parcel is illustrated as Parcel C on Figure 2 and is described as the south half of the northwest quarter (S 1/2 NVV1/4). the southwest quarter of the northeast quarter (SW 1/4 NE 1/4), and the northwest quarter of the southeast quarter (NW 1/4 SE 1/4) of Section 32, Township 16 8outh, Range 11 East of the Willamette Meridian. Parcel C is recognized as a legal lot of record. As noted in Homestead Certiflcate No. 5626 (Patent Number 2902), the United States co 160 acres to John B. Wimer on July 14, 1908. This land grant was later recorded at the Deschutes County Clerk's Office in Volume 1 of Patents, Page 461. This parcel is illustrated as Parcel D on Figure 2 and described as the southwest quarter (SW 1/4) of Section 32, Township 16 South, Range 11 East of the Willamette Meridian. This unit of land (Parcel D) is recognized as a legal lot of record. On July 14, 1808. 160 acres was also conveyed to Charles L. Wimer in a U.S. land grant (Homestead Certificate Number 5625, Patent Number 2901) and later recorded in Volume 1 of PaUanta. Page 462 at the Deschutes County Clerk's Office. This parcel is illustrated as Parcel E on Figure 2. Parcel E is described as the northeast quarter of the southeast quarter (NE % SE ¼) and the south half of the southeast quarter (S 1/2 SE1/4)ofSection 32and the southwest quarter of the southwest quarter (SW 1/4 SW %) of Section 33, Township 16 8ou1h, Range 11 East of the Willamette Meridian. Parcel E is recognized as a legal lot of record. Through a U.S. land grant dated February 25, 1909. 160 acres was conveyed to Thorwald A. Jensen (Patent Number 48056) and later recorded in Volume 2 of P@t8DtS. Page 227 at the Deschutes County Clerk's Office. This parcel is illustrated as Parcel F on Figure 2. Parcel F is described as the northeast quarter of the southwest quarter (NE 1/4 S\8/1/4). the southeast quarter of the northwest quarter (SE 1/4NVV1/4).and the west half ofthe southwest quarter 0JV}6 8VV1/4\ of Section 29, Township 16 Gouth, Range 11 East of the Willamette Meridian. This unit of land (Parcel F) is recognized as a legal lot of record. On October 27, 1910, 160 acres was conveyed to the Thorwald A. Jensen in a U.S. land grant (Patent Number 159356) and later recordedin Volume 2 of Patents, Page 386 at the Deschutes County Clerk's Office. This parcel is illustrated as Parcel G on Figure 2 and is described as the northeast quarter (NE 1/4) of Section 31, Township 16 South, Range 11 East of the Willamette Meridian. Parcel G is recognized as a legal lot of record. As specified in Patent Number 286678, the United States conveyed 160 acres to William O. Clark on August 1, 1912. This land grant was later recorded at the Deschutes County Clerk's Office in Volume 2 of Patents, Page 460. This parcel is shown as Parcel H on Figure 2. Parcel H is described as the southeast quarter of the northeast quarter (8E% NE 1/4), the east half of the southeast quarter (E |6 SE %), and the southwest quarter of the southeast quarter (SW % SE 1/4\ of Section 30, Township 16 South, Range 11 East of the Willamette Meridian. Parcel H is recognized as a legal lot of record. 247'15'0U0222'LR.Tunoe|oIrrigation District Page 4 Figure 3 Transactions involving Parce!s A, C, and D 2) In 1912 and 1913 several transactions occurred involving Parcels A. C. and D. shown on Figure 2. The first transaction occurred when John and Carolyn Wimer conveyed a portion of Parcel D to George and Delilah Wimer on November 11, 1912. This deed was recorded in Volume 12, Page 405 at the Deschutes County Clerk's Office. This parcel is shown as Parcel J on Figure 3. Parcel J. approximately 40 acres in size, is described as the east half of the east half of the southwest quarter (E 1/2 E }6 SW 1/4), of Section 32, Township 16 SoUth, Range 11 East of the Willamette Meridian. This unit of land (Parcel J) is recognized as a legal lot of record. The result of this conveyance that separated the eastern 40 acres of Parcel D (Fig. 2) was that it Ieft behind a remnant parcel of 120 acres with legally established boundaries. This remainder parcel is shown as Parcel K on Figure 3 and is described as the west haif of the southwest quarter (W 1/2 SW %) and the west half of the east half of the southwest quarter (W 1/2 E % SW %). of Section 32, Township 16 South, Range 11 East of the Willamette Meridian. Parcel K is recognized as a legal !ot of record. On November 23, 1912, George and Delilah Wimer convey a portion of Parcel A (Fig. 2) to John B. Wimer (Vol. 12, Page 312, Deschutes County Clerk's Office). This parcel is illustrated as Parcel L on Figure 3 and is approximately 40 acres in size. Parcel L is described as the northwest quarter of the northwest quarter (NW 1/4 NW 1/4) of Section 32, Township 16 Gouth, Range 11 East of the Willamette Meridian. Parcel L is recognized as a legal lot of record. Furthernoone, the conveyance of Parcel L separated the southwestern 40 acres of Parcel A (Fig. 2) and thus a parcel with legally established boundaries remained. This reniainder parcel of approximately 80 acres is shown as Parcel M on Figure 3 and is described as the southeast quarter of the southwest quarter (SE 1/4 SW 1/4) of Section 29 and the northeast quarter of the northwest quarter (NE 1/4 NVV'1/4) of Section 32, Township 16 Squth, Range 11 East of the Willamette Meridian. Parcel M is recognized as a legal lot of record. John and Carolyn Wimer conveyed to G. F Horner on November 29, 1912, apimately 200 acres that included Parcels K and L described obova, together with the western 40 acres of Parcel C (Fig. 2). This deed was recorded in Volume 12, Page 316 at the Deschutes County Clerk's Office. Although the Parcels K and L were included in this deed, it did not eradicate the parcel's previously egaIIy established boundaries as described above. Thanofopa, in this case, Parcels K and L remain in their configuration as separate legal lots. However, this conveyance did separate the western 40 acres of Parcel C. establishing discrete boundaries shown as Parcel N on Figure 3. Parcel N is described as the southwest quarter of the northwest quarter (SW '1/4;JVV%)ofSection 32.Township 16 South, Range 11 East of the Willamette Meridian. This unit of land (Parcel N) is recognized as a legal lot of record. By conveying the western 40 acres (Parcel N), it created a remainder parcel of the eastern 120 acres of Parcel C. which was further separated as discussed below. The remaining 120 acres of Parcel C was separated further in the following manner. On January 14, 1913, George and Delilah Wimer conveyed to John and Sarah Byers approximately 100 acres that included Parcel M (Fig. 3), described above, together with 20 acres of Parcel C (Vol. 14, Page 161). As noted previously and further explained below, including Parcel M with the 20 acres of Parcel C did not eradicate the legally established boundaries of Parcel M and thus Parcel M remains in its configuration as a separate legal lot. The conveyance of 20 acres that was originally part of Parcel C. hovvever, established a new parcel with discrete boundaries. This parcel is illustrated as Parcel 0 on Figure 3 and is described as west haif of the southeast 247-15-000222'LR.Tuma|oirrigation District Page 5 quarter of the northwest quarter (W 1/2 SE 1/4 NVV1/4). of Section 32, Township 16 South, Range 11 East of the Willamette Meridian. Parcel 0 is recognized as a legal lot of record. The conveyance of Parcel 0 separated out the remaining eastern 100 acres of Parcel C. Illustrated as Parcel P on Figure 3, the eastern 100 acres remained as a parcel with legally established boundaries. Parcel P is described as the east half of the southeast quarter of the northwest quarter (E 1/2 SE % NW 1/4), the southwest quarter of the northeast quarter (SW 1/4 NE %), and the northwest quarter of the southeast quarter (NW 1/4 SE 1/4) all in Section 32, Township 16 South, Range 11 East of the Willamette Meridian. Parcel P is recognized as a legal lot of record,3 Transactions involving Parcels B and H 2) In 1913 and 1914, Parcels B and H (Fig. 2) were separated in different transactions that conveyed land to the State of Oregon. Regarding Parcel B. in July 1913, Frank and Olga Swisher conveyed to the State of Oregon approximately 19.80 acres located in Section 33. This deed was later recorded in Volume 14, Page 3 at the Deschutes County Clerk's Office. This parcel is shown as Parcel Q on Figure 3.4 The result of this conveyance separated the western 19.80 acres of Parcel B (Fig. 2) located in Section 33, leaving behind a remnant parcel (approximately 60.2 acres) with legally established boundaries. Parcel Q is recognized as a legal lot of record. The remainder portion of Parcel B that was separated from Parcel Q is also a legal lot of record. Hovvever, it is not part of the subject property and further analysis is not included d in this decision. On January 5, 1914, William and Ada Clark conveyed to the State of Oregon approximately 55.96 acres located in Section 30 and thus dividing Parcel H (Fig. 2) into two separate parcels. The deed was recorded in Volume 14, Page 564 at the Deschutes County Clerk's Office. This parcel is illustrated as Parcel RonFigure 3." The result ofthe 1914 conveyance separated the eastern 55.96 acres of Parcel H (Fig. 2) located in Section 30, leaving behind a remnant parcel (approximately 104.04 acres) with legally established boundaries. Parcel R is recognized mea legal lot of record. The remainder portion of Parcel H that was separated from Parcel R is also a legal lot of record. Hovvover, it is not part of the subject property and further analysis is not included in this decision. On July 14, 1913, Perry and Ida Woolley convey to the State of Oregon Parcels F and G. as illustrated on Figure 2, (Vol. 13, Page 612). Although the two parcels were included in a single deed from 1913, this did not eradicate the parcels' previously legally established boundaries as detailed in this decision. Therefore, Parcel F and Parcel G remain in their original configuration as separate legal lots. These parcels are illustrated on Figure 3 for reference. Transactions involving Parcel E 2) On January 4, 1913, Charles L. Wimer conveyed to Willard and Cora Triplett approximately 110.75 acres of Parcel E (Fig. 2). The deed was recorded at the Deschutes County Clerk's Office » Three months after the conveyance of Parcel O. on March 18, 1913, George and Delilah Wimer conveyed to Charles L. Wimer Parcel P and Parcel J in Volume 13, Page 481 of the Deschutes County Clerk's Office. 4 For the property description of Parcel 0, refer to the deed recorded in Vol. 14, Page 3. 5 For the property description of Parcel R. refer to the deed recorded in Vol. 14, Page 564. 247 -15 -000222 -LR, Tumalo Irrigation District Page 6 in Volume 12, Page 511. This parc& is shown on Figureure 3 as Parcel S and includes 30.75 acres in the southwest quarter of the southeast quarter (SW 1/4 SE 1/4) and all of the southeast quarter of the southeast quarter (SE 1/4 SE 1/4) of Section 32 and the southwest quarter of the southwest quarter (SW 1/4 SVVIA)ofSection 33.all inTownship 1OSouth, Range 11East ofthe Willamette Meridien." This unit of land, Parcel G. is recognized as a legal lot of record. By conveying the 110.75 acres of Parcel S, it created two remainder parcels that were originally part of Parcel E. One remainder parcel is the northernmost 40 acres of Parcel E and is shown as Parcel T on Figure 3. Parcel T is described as the northeast quarter of the southeast quarter (NE IA SE %) of Section 32, Township 16 South, Range 11 East of the Willamette Meridian. The other remainder parcel is approximately 9.25 acres in the southwest quarter of the southeast quarter (SW % SE 1/1) of Section 32. This parcel is illustrated as Parcel U on Figure 3.7 These units of land, Parcel T and Parcel U, are recognized as separate legal lots of record.8 Figures 4 and 5 On September O. 1888. the State of Oregon conveyed to Tumalo Irrigation DisUict approximately 930 acres. The Statutory Quitclaim Deed was recorded at the Deschutes County Clerk's Office in Volume 170, Page 581. This unit of land is shown as Parcel V on Figure 4. The 1988 conveyance included all of Parcels F. G. L. M. N. 0, Q, and R as shown on Figure 3. In oddition, the deed included the partial conveyance of four units of land — Parcels K. P. T. and. 8.9 Although the Parcels F, G. L. M. N. 0, Q, and R were included together in the 1988 deed, the conveyance did not eradicate the parcels' previously legally established boundaries as detailed in this decision. Therefone, these eight parcels remain in the configuration as described above and remain as separate legal lots of record. As a result of partially conveying Parcels K, P. T, and S, it left behind four remnant parcels to the north of the property boundary."° These units of land are illustrated on Figure 5 as Parcels W, X, Y, and Z. At the time of the 1988 conveyance to Tumalo Irrigation District, the subdivision and partition ordinance PL -14 was used to regulate all subdivisions and partitions. In ndddion, the zoning ordinance PL -15 regulated minimum lot sizes. The southern region of Parcel V. where four units of land were partially conveyed, was zoned Open Space and Conservation (OS&C), which did not have a specific minimum lot size.11 Hovvevar, the subject property did not receive the benefit of an approval for a partition or subdivision. Therefore, Parcels W, X, Y and Z are not recognized as separate legal lots of record.12 6 For the full property description of Parcel S, refer to the deed recorded in Vol. 12, Page 551. ' Figure 3 illustrates only an approximate location for Parcel U. For the full property description of Parcel U, refer to the deed recorded in Vol13, Page 611. 8 It was several months later in July 1913 that Charles L. Wimer conveyed to the State of Oregon approximately 189.25 acres, which included Parcels J, P, T and U as described above (see Vol. 13, Page 611). » Based on the legal doeoripdnn, it appears that the units of land referred to as Parcels J and U (Fig. 3) were not included in the 1988 conveyance. mTheconveyanceheft remnant parcels to the south of the property boundary. However, additional review of these remainder parcels is not necessary because they are not a part of the subject property. 11Adthe time, the minimum lot size of the OS&C Zone was to be "determined by the County Sanitarian to be necessary for the protection of public health and natural resources." oParoeks W, X. Y. and Z may be recognized as legal lots of record using the discrete boundaries discussed with related parcels — Parcels K, P, T, and S. 247'15'UO0222-LR.Tuma|oIrrigation District Page 7 Lot of Record Analysis The applicant applied for verification of lot(s) of record under Deschutes County Code (DCC) 18.040D30(A. which is defined above. The applicant provided a complete application regarding the history of the parcel onaaUun, which allowed staff to render a decision where only lots or parcels legally created are recognized by the County for development purposes. Based On the sequential conveyances of land, staff finds the subject property (tax lot 7891\ wholly contains eight separate legal lots of nauord, five of which the applicant requested verification. The eight legal Iots of record are shown on Figure 6 as Parcels 1 through 8, with Parcels 1, 2, 4, 5, and 6 being the five that the applicant requested verification. The noted legal lots of record are all at least 5.000 square feet in area and 50 feet wide. In oddiUOD, the sequential land conveyances for the eight legal lots of record occurred prior to the County's first subdivision ordinance and zoning ordinance (1970 and 1972. respectively). Since the applicant is not seeking to divide the subject property, the procedures set forth in the current county subdivision ordinance, Title 17, are not applicable. Two legal lots of record, Parcels 1 and 2 on Figure 6 were established with discrete boundaries in federal conveyances from 1909 and 1910, respectively. These parcels have remained unchanged since first established. Although the two parcels were included in a single deed from 1913, the transaction did not eradicate the parcels' legally established boundaries (see comments below). Parcels 3 and 8 on Figure 6 were first established with discrete boundaries through two separate federal conveyances but were changed through transactions with the State of Oregon in 1914 and 1913, respectively. Both subsequent conveyances separated the parcels, leaving remnants not part of the subject property. Parcels 4, 5, 6, and 7 were first established with discrete boundaries through different federal conveyances but were changed through additional subsequent conveyances between 1912 and 1914. Some land transactions separated parcels and thus left a remnant of the parent papoe|o, such as Parcel 5, but were not altered further. Some remainder parcels were involved in additional land transactions such as Parcels 7. There are four units of land — Parcels 9, 10, 11, and 12 — shown On Figure 6 that are not recognized as separate legal lots of record. As stated previously, a 1988 conveyance of Parcel V (Fig. 4) separated four units of land — Parcels K. P. T. and S (Fig. 3) and thus created remnant parcels — Parcels W, X. Y. and Z shown on Figure 5. Parcels W, X, Y. and Z are not recognized as separate legal lots of record because the partition and zoning ordinances were in effect at the time of the 1988 conveyance. These parcets are portions af the legal Iots identified Most of the parcels reviewed here were included in subsequent deeds that described adjacent lands together in a single deed. Including the parcels in a single deed does not eradicate the boundary lines that legally established those properties in the past. Evidence was not found that indicated the subject legal lots of record were consolidated through a property line adjustment approval or platted as part of a subdivision or partition. In the decision LF! -10-2 kA - 10 -3\ and in LR -92-43. LR -92-44, LR -92-46. and LR -92-47, Deschutes County Hearings Officers found that the mere inclusion in a single deed of multiple parcels lawfully created by conveyances did not result in the eradication of the parcels' previous legally established boundary lines. Furthennore. the remnant parcels reviewed here were first established as separate larger parcels with legally established boundaries, and were surrounded by legally established 247 -15 -000222 -LR, Tumalo Irrigation District Page 8 boundaries of other parcels. Although the remainder parcels left behind do not meet the strict definition contained in DCC 18.040.030(A/5\ because the adjacent or surrounding lands have not been subdivided or portidoned, once altered by subsequent conveyances the remnants become legal remainder parcels. In decision LR -1O-2 A\ -1O-3\, the County Hearings Officer articulated that remainder lots are surrounded by legally created lots. Staff relies on this determination to identify remainder parcels created by deed prior to partition and subdivision requirements. The subject property contains lands zoned Exclusive Farm Use — Tumalo/Bend/Redmond subzone (EFUTRB), Open Space and Conservation (]8&C), Forest Use (F1 and F2), and Flood Plain (FP). Portions of the property are also within the Landscape Management (LM), Wildlife Area (WA), and Sensitive Bird and Mammal Habitat (SBMH) Combining Zones. Any development of this property is subject to the requirements of Title 18, Deschutes County Zoning Ordinance. Development of this property is also subject to the requirements of the County Building and Environmental Soils Divisions. This decision becomes final twelve (12) days from the date this decision is mailed unless appealed by a party of interest. Sincerely, Cynthia Gnnidt, Associate Planner Enclosures 247-15'O0O222'LR.Tuma|oirrigation District Page 9 161119 FIGURE 1 Deschutes County Fite 247 -15 -000222 -LR 161120 Tax Lot 7891 Titicittrg, 1,61121fctitiso 4ati'16/1: 1 611 161128 161133 16112' '1 161134 f UPPor Turtialo 1?es rvoir CURRENT CONFIGURATION FIGURE 2 Deschutes County File 247 -15 -000222 -LR 161119 161120 1611 2.IClim 161122 PARCEL A 1906 U.S. LAND GRANT PARCEL 8-1907 DEED PARCEL C - 1907 U.S. LAND GRANT PARCEL ID - 1908 U.S. LAND GRANT PARCEL E - 1908 U.S. LAND GRANT PARCEL F -1909 U.S. LAND GRANT PARCEL G 1910 U.S: LAND GRANT PARCEL H - 1912 U.S. LAND GRANT 161119. FIGURE 3 Deschutes County File 247 -15 -000222 -LR 161120 161128 161127 X 3 Vppor Tumalo Res rvolr 171103 PARCEL J— 1912 DEED PARCEL K— REMAINDER PARCEL L-1912 DEED PARCEL M — REMAINDER PARCEL N 1912 DEED PARCEL 0 — 1913 DEED PARCEL P— REMAINDER PARCEL Q — 1913 DEED PARCEL R — 1913 DEED PARCEL S 1913 DEED PARCEL T— REMAINDER PARCEL U — REMAINDER FIGURE 4 Deschutes County File 247 -15 -000222 -LR PARCEL V - 1988 DEED FIGURE 5 Deschutes County File 247 -15 -000222 -LR 1 I . .,. .'.n.n.....,,,......::.....,, 161119 161120 _1 0 '..;,.: ' ';'',:161H1121{c-ti "7,:°,'„,;',,.....„,',. ii00*iii,°,°,.,°..°°,,.:.7.,,.),. .i.:16,',..,:,°°°, -;:t°,°:,°,..,,, 161128 COLUHS RO PARCEL W - REMAINDER PARCEL X - REMAINDER PARCEL Y — REMAINDER PARCEL Z - REMAINDER 1 6111 9 FIGURE 6 Deschutes County File 247 -15 -000222 -LR 161120 1 611 28 Upper rum alo Res rvolt LEGAL LOTS or RECORD = 8 Cynthia Smidt From: Sent: To: Cc: Subject: Attachments: Cynthia: Liz Fanche/x|iz@|izf nchercom> Monday, January 11, 2016 4:39 PM Cynthia Smidt Bill Hopp; Paul Dewey; carol@centraloregonlandwatch.org; Ken Rieck; David Doyle Response to COLW Appeal of Tumalo Irrigation District Lot of Record Decision by Hearings Officer Green responsefiled.pdf I've attached a copy of the cover letter and response I filed with your office earlier this afternoon. Would you please include these documents in the record and forward copies to the Board of Commissioners? 1 did not file copies with the Board's office. Thank you, Liz Eancher Liz Fancher, Attorney 644 NW Broadway Street Bend, OR 97703 541-385-3067 (telephone) 1 SCA D JAN 11 2.016 LIZ FANCIIER, ArroxNEy LiL Fanchei Sue Stinson, Paralegal January 11, 2016 BOARD OF COMMISSIONERS OF DESCHUTES COUNTY C/O CYNTHIA SMIDT DESCHUTES COUNTY COMMUNITY DEVELOPMENT 117 NW LAFAYETTE AVENUE BEND, OR 97703 Re: 247 -15 -000222 -LR, Lot of Record Application of Tumalo Irrigation District 247-15-000430-A, Appeal of Staff Decision by COLW 247-15-000633-A, Appeal of Hearings Officer's Decision by COLW Enclosed please find Tumalo Irrigation District's Response to the COIN Appeal for the above -referenced cases now under review by the Board. Thank you for your consideration of this matter. Sincerely, Enc. - 1 Cc: client 6-4 NAXI BROA DWAY SIR 11 ET * it EN D , OPEGOJ* 97701 PI -I01 -1E: 541-385-306-7 ° 541-15-15076 BEFORE THE BOARD OF COMMISSIONERS FOR DESCHUTES COUNTY, OREGON File: 247 -15 -000222 -LR, 247-15-000430-A, 247-15-000633-A Applicant: Tumalo Irrigation District Attorney Liz Fancher for Applicant: 644 NW Broadway Street Bend, Oregon 97701 541-385-3067 (telephone) 541-385-3076 (fax) liz@lizfancher.com Request: Lot of Record Determination Property: Tax Lot 7891, Assessor's Map 16-11-00 TUMALO IRRIGATION DISTRICT'S RESPONSE TO COLW APPEAL WHY IS TUMALO IRRIGATION REQUESTING A LOT OF RECORD DETERMINATION? • Tumalo Irrigation District wants to own all land around Tumalo Reservoir so it can control access to the reservoir. • The State of Oregon (Division of State Lands) owns land under and around the Tumalo Reservoir. • Tumalo Irrigation District wants to prevent development or use of the reservoir by the State that is inconsistent with its use as a reservoir. • The State is willing to trade land it owns around and under the Tumalo Reservoir for a part of Tax Lot 7891. O Tumalo Irrigation needs to confirm lot boundaries prior to trading land or adjusting boundaries with the State. WHAT ARE COLW's OBJECTIVES? COLW is asking the County to consolidate eight lots of record and parts of other lots of record owned by Tumalo Irrigation District into a new lot that will not qualify as a legal lot of record. COLW is asking the County to adopt an interpretation of definitions used by its lot of record ordinance that will, if accepted, make all parcels in Deschutes County created by deeds (rather Page 1 of 6 — TM'S Response to COLW Appeal to Board than partition or subdivision plats) permanently ineligible for development, lot line adjustment or partition approval.I WHAT ARE COLW'S PRIMARY LEGAL ARGUMENTS? COLW is arguing that the terms "lot" and "parcel" in Title 18 and ORS 92.010 must be read to apply only to lots or parcel created by a subdivision plat and parcels created by a partition or subdivision plat so that parcels created by deed cannot be lots of record. COLW is arguing that the 1988 deed that conveyed Tax Lot 7891 to Tumalo Irrigation District consolidated eight legal lots of record and parts of other legal lots of record into one illegal parcel that can never be developed because it contains a single legal description; not descriptions of each legal lot of record. WHAT ARE THE IMPACTS OF ACCEPTING COLW'S POSITIONS The impact of accepting COLW's legal position regarding "lot" and "parcels" will be to impose a moratorium on the development of all lots created by deeds — a significant portion of the rural lands in Deschutes County. Accepting COLW's position would make it virtually impossible for owners of these lands to sell their properties. The validity of existing legal lot of record determinations will be called into question. TID's legally created lots will be converted into one illegal parcel that cannot be developed, adjusted, divided or used for any use that requires County land use approval. Lot consolidations will occur without required County land use review and approval. WHY ARE COLW's POSH IONS WRONG? The County's lot of record definition specifically states that lots and parcels created "by deed or contract" may be found to be legal lots of record so the terms lots and parcels cannot possibly mean lots and parcels created by subdivision or partition plats only. LUBA has already determined that relying on deed language and grantor intent to determine legal lot of record status is not legal. Thomas v. Wasco County, 58 Or LUBA 452 (2009). The lot lines of historic lots are, also, protected from consolidation by ORS 92.017. Additionally, no provision of Oregon law supports COLW's argument that legal descriptions, alone, consolidate lots. This position is set out in COLW's appeal of staff's decision to the County's hearings officer. The appeal refers to "patent deeds" but the argument is equally applicable to any deed. Page 2 of 6 — T1D'S Response to COLW Appeal to Board HEARINGS OFFICER GREEN'S DECISION IS CONSISTENT WITH LONG- ESTABLISHED INTERPRETATIONS OF COUNTY CODE BY BOARD AND STAFF The Hearings Officer's decision is correct and consistent with long-standing County interpretations of the County's lot of record law and should be upheld. It is also consistent with State law, COUNTY BOARD'S INTERPRETATION OF ITS CODE WILL BE DUE DEFERENCE BY LUBA The meaning of the term "lot of record" is a matter of local law. The Board's interpretation of the term will be due deference by LUBA and the Oregon Court of Appeals if its decision is appealed. RESPONSE TO SPECIFIC GROUNDS FOR APPEAL Tumalo Irrigation District provides the following responses to the specific grounds of appeal listed in COLW's notice of appeal. A summary of COLW's objections, by issue number, is presented in italics and is followed by TID's response. TID's complete response to these issues is provided in TID's Final Argument that was filed with the County's land use hearings officer. ISSUE #1 New evidence is irrelevant because a 2005 lot of record decision filed by Barbara Tyler "was a legal determination that the State's conveyance of all the land in a single deed in 1988 meant that ***separate historic parcels no longer existed." DCC 22.28.040(B) specifically allows Tumalo Irrigation to reapply for a lot of record determination if it presents evidence not submitted with the 2005 lot of record application. The deed and patent records filed by Tumalo Irrigation District are new evidence. The deeds and patents are relevant because DCC 18.04.030 "lot of record"says that parcels lawfully created by deed are legal lots of record. The County's 2005 Tyler lot of record decision decided that the 1988 deed did not create a legal lot of record because partition approval was required but was not obtained. That is all that it decided. In 1988, deeds were not a lawful means of creating lots and it was not legal to consolidate existing lots without County approval: No County approvals were obtained. As a result, the 1988 deed did not eliminate existing, lawfully created lot lines. ISSUE #2 The hearings officer vvas wrong in finding that wildlife protections imposed as deed restrictions in the 1988 deed from the State of Oregon to Tumalo Irrigation District are irrelevant to the lot of record determination because a lot of record verification is a prerequisite to development. Page 3 of 6 — TID'S Response to COLW Appeal to Board The hearings officer was correct. Deed restrictions are not land use laws. They are a contract between the State of Oregon and TID. They cannot be used to decide County land use cases. ORS 197.015(10); ORS 197.175(2)(d)(County to make land use decisions based on acknowledged comprehensive plan and land use regulations); ORS 197.763(5)(b)(arguments must be directed toward criteria in plan or land use regulations). ISSUE 3 ORS 92.017 does not apply to parcels created by deed because the parcels are not a unit of land created by partitioning [as defined by ORS 92.010(9)]. The real issue is whether parcels created by deeds meet the County's definition of a "lot of record." DCC 18.04.030(A)(3) says "a lot or parcel * * created by any of the following means ** by deed or contract ***." If a parcel is a unit of land created by partition plat only, it would never be possible for a parcel created by deed to become a legal lot of record — something clearly not intended by the code. COLW's argument that parcels created by deed are not protected by ORS 92.017 has been rejected by LUBA in numerous cases, including Joseph v. Baker County, 33 Or LUBA 38 (1997), Tarjoto v. Lane County, 34 Or LUBA 124 (1998), Smith v. Jackson County, 37 Or LUBA 779 (2000), Masson v. Multnomah County, 48 Or LUBA 100 (2004); and Porter v. Marion County, 56 Or LUBA 635(2008). No legal case supports COLW's argument. The legislative history of ORS 92.017 shows that the law was written to protect the lot boundaries of parcels created by deeds. When ORS 92.017 was adopted, the Legislature changed the definitions of the terms lot and parcel so that they would include units of land created by deeds. State law, ORS 92.010(9), defines "partitioning land" as "dividing land to create not more than three parcels of land within a calendar year"— by any means; not only by a County -approved partition plat.2 Furthermore, COLW's interpretation of ORS 92.017 cannot be correct because it would render the State's subdivision control law unenforceable. The subdivision law and ORS 92.017 use the same definitions of "lot" and "parcel." ORS 92.025(2) prohibits the sale of a "parcel in a partition" until a partition plat has been filed. If a "parcel in a partition" only means parcels created by a County -approved partition plat, rather than a partition that occurs due to the recording of deeds, it would not be illegal to divide land without County approval. ISSUE 4 The hearings officer incorrectly interpreted LUBA 's decision in the Kishpaugh. and Thomas cases as holding that ORS 92.017 applies to lots created by deed. Parcels are created by private deed transactions that the County can't regulate. Lot lines "fall way" based on private transactions. 2 Certain acts, such as a lien foreclosure, are excluded from this definition. Page 4 of 6 — TID'S Response to COLW Appeal to Board The hearings officer's interpretation of the Kishpaugh and Thomas cases is correct. It is also consistent with the holdings or discussion of ORS 92.017 and parcels created by deeds contained in numerous other LUBA cases including Joseph v. Baker County, 33 Or LUBA 38 (1997), Tarjoto v. Lane County, 34 Or LUBA 124 (1998), Smith v. Jackson County, 37 Or LUBA 779 (2000); Masson v. Multnomah County, 48 Or LUBA 100 (2004); Porter v. Marion County, 56 Or LUBA 635(2008).3 The County is clearly authorized and required by State law to regulate the creation of lots and parcels. State law requires the County to regulate the creation of lots and parcels by County land division regulations. ORS 92.044. Stale law has also been written to allow counties to review and approve lot consolidations. ORS 92.010(9),(12). Lawfully created parcel lines created by deeds do not "fall away." ORS 92.017 says that they remain in place until governmental action occurs to eliminate the lines. LUBA agrees. Sinith v. Jackson County, 37 Or LUBA 779(2000)(conveyance of three parcels in one deed in 1993 did not vacate the property lines between the historic parcels). Adopting COLW's position would create great hardships for property owners. Lots acquired on a single deed in lieu of foreclosure deed will also be consolidated — undoing the legal effect of the deeds or plats that created the lots in the past. Multiple lots that were conveyed on one deed then separately sold will, after the fact, become a single lot of record with multiple owners. This will create a chaotic situation and cause great hardship to lot owners. ISSUE 5 The holding of LUBA's Weyerhaeuser case was not applied by the hearings officer. If applied, it would prevent the County from finding that more than one lot exists within the "parcel" that COLW believes was created by the 1988 deed. The Weyerhaeuser case is not "on point." It determines the legal effect of a partition plat on subdivision lots; not the legal effect of recording a deed on parcels created by deed. The boundaries of the Weyerhaeuser lots were eliminated by a lawful partition approved before ORS 92.017 was adopted. In the TID case, the deed to TID was not a lawful means of dividing land and ORS 92.017 was in effect and told TID that the historic lot boundaries would remain in place. Furthermore, the Oregon Court of Appeals considered the Weyerhaeuser case on appeal and did not follow LUBA's reasoning that lots cannot exist inside a parcel. Instead, the Court of Appeals found that a partition plat eliminates lot lines of lots within the boundary of a new partition 3 These cases are discussed in TID's Final Argument filed with the hearings officer, Page 5 of 6 — TID'S Response to COLW Appeal to Board parcel based on the text of the State's 1981 subdivision and partition law.4 The Court makes it very clear that its decision is based on this law as written in 1981. This law does not apply to deeds recorded in 1988. ISSUE 6 The hearings officer failed to recognize that a deed may eliminate parcel boundaries and that a lot line adjustment is not necessary to do so. COLW is wrong. In 1988, a deed did not create lots and it did not consolidate lots. Smith v. Jackson County, 37 Or LUBA 779 (2000)(conveying three parcels in one deed in 1993 did not vacate the property lines between the parcels; a vacation of lot lines must occur through a "specific process"). Furthermore, COLW has cited no Oregon case or law that says that deeds had this effect prior to the adoption of ORS 92.017. ISSUE 7 The County must find, as a matter of law, that a deed that conveys land by a metes and bounds legal description conveys one parcel and eliminates all existing, lawfully created lot lines. No provision of law supports this claim. Furthermore, such a finding would violate ORS 92.017 which says that existing lot lines remain until vacated by a means prescribed by law such as a replat or lot consolidation. CONCLUSION Deschutes County has a logical and legally defensible system for determining whether lots and parcels have been lawfully created that it employs to make lot of record decisions. TID requests that the Board decline to replace its existing system with new rules that will violate State law and that it affirm the decisions of its staff and hearings officer Karen Green. Respectfully submitted this 1lth day of January, 2016. Liz Fancher, 1'12!..1 ,y for TID 4The Court of Appeals explained: "We conclude that, under the statutes applicable at the time of the 1983 partition, a partition had the effect of vacating previous lot lines, at least where, as here, the partition map does not indicate the continued existence of the lots that were partitioned. Under those statutes, a parcel and a lot were each "a unit of land," created by either a partition (parcels) or a subdivision (lots). ORS 92.010(1), (6) (198]). To "partition land" was to divide "an area or tract of land" that "exists as a unit or contiguous units of land under single ownership" into two or three new units, or parcels. ORS 92.010(8) (1981). A partition, then, could divide an owner's single existing parcel or lot, or it could divide an owner's multiple contiguous parcels or lots, into two or three parcels." Weyerhaeuser, 246 Or App 548, 558, 267 P3d 855 (2011). Page 6 of 6 — TID'S Response to COLW Appeal to Board LAND WATCH January 11, 2016 Deschutes County Board of Commissioners 117 NW Lafayette Ave. Bend, OR 97701 Delivered by hand re: File Nos: 247 -15 -000222 -LR; 247-15-000430-A Dear Commissioners, 50 SW Bond Si., Ste. 4 1 Bend, OR 97702 Phone (541) 647-293C) General Comments Appellant Central Oregon LandWatch appeals the Deschutes County Hearings Officer's ("Hearings Officer's") November 12, 2015 determination that there are eight lots of record on Tumalo Irrigation District's ("TID's") 930 -acre property that includes Tax Lot 7891.1 Appellant agrees with the County's prior determination in 2005 that the subject property is not a lot of record.2 The 930 -acre property was created by a 1988 quitclaim deed from the State of Oregon's Water Resources Department (OWRD) which describes the land in a single metes and bounds description that makes no mention of any previous property boundaries that may have existed on the same area of land in the past.3 The Hearings Officer inappropriately found that parcels created by earlier deeds on this property before the 1970's continue to exist because of the operation of ORS 92.017. The Hearings Officer erred in: 1) reversing Deschutes County staffs correct determination in 2005 that the property is not a lot of record; 2) finding ORS 92.017 applies to parcels created by deed; 3) mistakenly relying on Kishpaugh4 and Thomas5 for the proposition that ORS 92.017 applies to parcels created by deed; and 4) failing to follow the reasoning of LUBA and the Court of 1 In 2005 when TID initially applied for a lot of record determination for this property, Tax Lot 7891 was 930 acres 2 Deschutes County LR -04-37, March 23, 2005, Attachment 1 3 1988 Quitclaim Deed, OWRD to TID, Attachment 2 4 Kishpaugh v. Clackamas County, 24 Or, LUBA 164 (1992)("Kishpaughl 5 Thomas v. Wasco County, 58 Or. LUBA 452 (2009)("Thomas1) 2 Appeals in Weyerhaeuser that there is no legal, or possible, way to create a discrete lot or parcel that includes within it other discrete lots or parcels.6 Our specific comments are below. Specific Comments 1) Deschutes County staff correctly determined this property is not a lot of record in 2005 The 1988 Quitclaim Deed from 0 g to TID provides a metes and bounds description of a single parcel of 930 acres. The 930 -acre parcel does not meet the criteria for a lot of record in Deschutes County. The property transferred from 0 n g achieved its current shape for the first time when it was created by the 1988 Quitclaim Deed. As County Staff explained in its denial of lot of record status for the subject property in 2005: "[W]e have determined Tax lot 78917 is not a legal lot of record.... Tax lot 7891 was originally conveyed in its current configuration in a Quitclaim Deed dated September 8, 1988, and recorded in Volume 10, Page 581 at the Deschutes County Clerk's Office. At the time of the 1988 deed being recorded, subdivision and partition ordinance PL -14 regulated subdivisions and partitions. When this ordinance was adopted on November 1, 1979, all new parcels in the county had to have been created through a partition approved by the county. There is no record of a partition being completed in county's records for this property." 8 To understand the issues of this case it is important to distinguish between the creation of a parcel and the creation of a lot of record. The creation of a parcel does not necessarily mean that it is a lot of record. To be a lot of record, a parcel must have been created by partitioning land under ORS 92, by a subdivision plat under ORS 92, or by deed if done before the partition and subdivision laws were adopted. See DCC 18.04.030. Here, the TID parcel was created by deed in 1988 after the adoption of the partition and subdivision laws. In 2005, County Staff correctly assessed the 930 -acre parcel created by the 1988 deed, comparing the date the 1988 Quitclaim Deed from OWRD to TID was recorded, to the date Deschutes County adopted a partition ordinance PL -14, in 1979. Deschutes County LR -04-37, March 23, 2005, Attachment 1. The 930 -acre unit of land conveyed to TID in 1988 was created by deed, not partition. Therefore it was not created in conformance with all zoning and subdivision or partition requirements in effect on the date the 930 -acre parcel was created because the 930 -acre parcel 6 Weyerhaeuser Real Estate Development Co. v. Polk County, 63 Or LUBA 393 (2011), affd 246 Or App 548 (2011); Weyerhaeuser v. Polk County, 246 Or App 548 (2011). i.e. the 930 -acre parcel conveyed by OWRD. See supra note 1, and accompanying text 8 Deschutes County LR -04-37, March 23, 2005, Attachment 1. Protecting Central Oregon's Natural Environment And Working For Sustainable Communities 3 was not created in conformance with the 1979 partition ordinance. Therefore, the subject property is not a lot of record as County Staffcorrectly determined in 2005. The Board should reverse the Hearings Officer's decision and re -affirm the county's 2005 decision denying lot of record status. 2. ORS 92.017 dos not apply to parcels created by deed The Hearings Officer's decision is predicated on the notion that ORS 92.0179 applies to parcels created by deed. "[T]he Hearings Officer finds ORS 92.017 applies to and protects historic units of land lawfully created by conveyance(s) that predate the county's land use regulations." HO, 16.10 This is patently incorrect. ORS 92.017 does not apply to parcels created by deed. ORS 92.010 defines "parcels" covered by ORS 92.017 as applying only to "partition parcels," not parcels created by deed. ORS 92.017 applies only to subdivision lots and partition parcels. Because the Hearings Officer's decision is based on this mistaken interpretation of state law, the decision should be reversed. The Hearings Officer's interpretation of the effect of ORS 92.017 in this case is directly contradicted by Just v. Lane County in which LUBA stated the exact opposite. 50 Or. LUBA 399, 405 f.n. 3 (2005). LUBA explained in that case that the legislature's definition of the word "parcel" for ORS 92.017 does not include parcels created by deed. In 1985, on the same day, in the same bill, the Oregon legislature adopted two distinct definitions of the word "parcel" and the text of ORS 92.017. HB 2381, 1985.11 The two definitions of "parcel" and the text of ORS 92.017 are part of a single coherent piece of legislation that provides, both on its face and as those two definitions have been interpreted by LUBA, that ORS 92.017 does not apply to parcels created by deed.12 9 ORS 92.017 "A lot or parcel lawfully created shall remain a discrete lot or parcel, unless the lot or parcel lines are vacated or the lot or parcel is further divided, as provided by law." 10 See HO, 11. The Hearings Officer's decision repeated the erroneous reasoning about ORS 92.017 in the administrative decision, which the Hearings Officer summarized as follows: "The administrative decision found the lots of record created by these conveyances remained separate and distinct after the effective dates of the county's first subdivision and partition ordinances based on ORS 92.017 which states: A lot or parcel lawfully created shall remain a discrete lot or parcel, unless the lot or parcel lines are vacated or the lot or parcel is further divided, as provided by law." (emphasis added) 11 The definition of parcel in ORS 92.010, the definition of parcel in ORS 215.010, and the text of ORS 92.017 itself were all adopted in HB 2381 on the same day. HB 2381, Chapter 17, Oregon Laws 1985. 12 HB 2381,1985; ORS 92.010(5); ORS 92.017; ORS 215.010. Protecting Central Oregon's Natural Environment And Working For Sustainable Communities 4 LUBA summarized the difference between the two definitions of "parcel' in its decision in Just v Lane County, 50 Or. LUBA 399, 405 f.n. 3 (2005): "ORS 215.010 provides definitions for purposes of statutes concerning county planning. ORS 215.010(1) adopts the definitions in ORS 92.01013 except that it adds to the ORS 92.010(5) definition of parcel, units of land that were created by deed or land sale contract before land use regulations applied" (emphasis added) Unlike the definition of parcel in ORS 215.010, the definition in ORS 92.010 omits "parcels created by deed." The text of ORS 92.010 is unambiguous. Therefore there is no doubt that contrary to the Hearings Officer's decision, ORS 92.017 does not apply to parcels created by deed, which are the only units of land under consideration in this case. The misapplication of ORS 92.017 to this case is the sole basis for the reversal of the county's 2005 decision for this property. Given that ORS 92.017 does not apply, the Board should reaffirm the 2005 decision that the property is not a lot of record. 3. The Hearings Officer's decision erred in relying on Kishpaugh" and Thomas'5for the proposition that ORS 92.017 applies to parcels created by deed The Hearings Officer cites two cases in support of her erroneous finding that ORS 92.017 applies to parcels created by deed; these cases do not support the Hearings Officer's position.. See HO, 15: "The Hearings Officer finds that contrary to appellant's argument, LUBA's Kishpaugh and Thomas decisions make clear ORS 92.017 protects units of land lawfully created by conveyances." The Hearings Officer's reliance on Kishpaugh v. Clackamas County, 24 Or. LUBA 164 (1992) and Thomas v. Wasco County, 58 Or. LUBA 452, 457-458 (2009) is misplaced. To the extent ORS 92.017 may protect units of land lawfully created by conveyances at all, which is contrary to the express definition of "parcel" for that statute, the protection ORS 92.017 provides to any unit of land is not the protection the Hearings Officer claims for it. ORS 92.017 is directed at local governments, not at willing buyers and sellers in the private real property market. ORS 92.017 does not operate to prevent willing landowners from conveying their property as they see 13 ORS 92.010 provides the definition of "parcel" in ORS 92.017. 14 Kishpaugh v. Clackamas County, 24 Or. LUBA 164 (1992), ("Kishpaugh') 15 Thomas v. Wasco County, 58 Or, LUBA 452 (2009), ("Thomas") Protecting Central Oregon's Natural Environment And Working For Sustainable Communities 5 fit. Most importantly ORS 92.017 does not apply to lots of record. Kishpaugh, 13. The Hearings Officer erred in finding otherwise. These errors are discussed in turn below. 3.a. Kishpaugh v. Clackamas County, 24 Or. LUBA 164 (1992) does not support the HO's decision In Kishpaugh, LUBA quoted respondent Clackamas County's description of ORS 92.017:16 "The legislative history [of ORS 92.017] ... clearly shows the problem aimed at was that parcels 'lawfully created,i.e. by official partition approval or by conveyance to another party in years prior to partitioning regulations, might be combined simply because they came into common ownership." Following an exhaustive consideration of the legislative history of ORS 92.017, LUBA explained: "Under ORS 92.017, the county cannot refuse to recognize as separate, two lawfully divided parcels, simply because one parcel was never held in an ownership separate from the other parcel. ORS 92.017 requires recognition of such parcels as separate until some action is taken to erase the lawfully -established property lines. If the challenged decision refused to recognize as separate, parcels that were lawfully divided, simply because those parcels were held in a single ownership, such a determination would violate ORS 92.017." (emphasis added) Kishpaugh v. Clackamas County, 24 Or. LUBA 164, 172 (1992). Thus according to LUBA, the statute simply provides that a county cannot declare two adjacent subdivision lots or partition parcels merged, just because one landowner owns them. There is no question that this is not the situation here. Deschutes County has not attempted to merge any subdivision lot, partition parcel, or parcel created by deed. ORS 92.017 operated exactly as planned when 0 9 .• r conveyed to TID the number of parcels it wished to convey. Deschutes County did not tell OWRD how many parcels to convey: OWRD simply chose to convey a single parcel created by deed, and TID simply chose to accept that parcel created by deed. The conveyance of parcels created by deed is a matter of real estate law in which the county plays no part. The county simply applies its zoning regulations to properties once they have been created. Kishpaugh's17 detailed legislative history of ORS 92.017 shows that the Applicant differs fundamentally from the individuals ORS 92.017 was adopted to protect. The legislative history 16 Kishpaugh v. Clackamas County, 24 Or. LUBA 164, 168 (1992) 17 Thomas v. Wasco County, 58 Or. LUBA 452, 457-458 (2009) Protecting Central Oregon's Natural Environment And Working For Sustainable Communities 6 of ORS 92.017 recounts the stories of landowners of multiple units of land who wanted the right to sell the legally created units of land they acquired. The legislature adopted ORS 92.017 to protect owners of multiple units of land from local governments who might try to merge the landowners' lots without their consent. There is not a single mention in the legislative history of ORS 92.017 as recounted in Kishpaugh of a landowner like TID, which does not own multiple parcels. ORS 92.017, as interpreted by LUBA in Kishpaugh, does not apply here, where there is only a single parcel, the 930 -acre parcel created by deed. There is no question of involuntary merger by Deschutes County. Most significantly, the legislative history of ORS 92.017 in Kishpaugh specifically states that ORS 92.017 does not apply to lots of record, and so is inapplicable to this case. The following excerpt from Kishpaugh's legislative history explains both that ORS 92.017 only applies to subdivisions and partitions, not to parcels created by deed, and that ORS 92.017 has nothing to do with lots of record: "What the bill is saying is once a subdivision always a subdivision, unless you formally vacate it. Once a partition always a partition, unless you formally vacate it. It does not address * * * the lots of record."18 Kishpaugh recounts another excerpt from the legislative history which clearly explains that ORS 92.017 has nothing to do with lots of record: "An important point I need to make about this bill is that it in no way gives new development rights to anyone. So, to get it on the record, we're not trying to legitimize lots of record for any kind of development. People shouldn't look at this as having a piece of property and going in for a building permit.... The practical effect of the bill is to allow units of land that were lawfully created over the years to be sold and in so doing provides for the equitable treatment of property owners who have not been well treated under current law."19 (emphasis added) ORS 92.017 was adopted to provide for the equitable treatment of property owners who had not been well treated under the law. There is no suggestion here that TID "has not been well treated" under the law, or would not be well treated under the law unless ORS 92.017 was erroneously applied to this case. 18 Kishpaugh at 13, (quoting Steve Hawes, House Housing and Urban Development Committee (HB 2381), February 21, 1985, tape 35 at 186.) 19 Kishpaugh at 9, (quoting Representative Al Young, Senate Energy and Natural Resources Committee (HB 2381), June 10, 1985, tape 146A at 213.) (emphasis added) Protecting Central Oregon's Natural Environment And Working For Sustainable Communities 7 Applicant accepted and recorded the deed in 1988. Applicant can not now be heard to argue that its lands are not of the shape and extent described in the 1988 deed of record. Tumalo Irrigation District accepted the deed from OWRD knowing its terms, knowing that the deed describes only a 930 -acre unit of land in terms of metes and bounds, and knowing that the deed makes no mention of any historical parcels that formerly occupied the area of the 930 acres conveyed. TID acquired a single parcel and therefore is at no risk of suffering involuntary merger at the hands of Deschutes County, which does not have now and never has had an involuntary merger provision in its code. The Hearings Officer's decision relies on a misinterpretation of Kishpaugh v. Clackamas County and misapplies ORS 92.017 which does not apply to this case. The decision should therefore be reversed. 3.b. Thomas v. Wasco County, 58 Or. LUBA 452, 457-458 (2009) The Hearings Officer 's decision likewise misinterprets Thomas v. Wasco County, 58 Or. LUBA 452 (2009). The Hearings Officer mistakenly relied in part on LUBA Board Member Holstun's concurrence in Thomas v. Wasco which certainly does not support the Hearings Officer's conclusion. HO, 14. Board Member Holstun wrote: "I believe it is extremely doubtful that counties ever had the authority to adopt local laws that dictated that parcels, which under Oregon real property law exist as legal separate units of land, do not qualify as separate units of land in that county. If counties ever had that authority to override the state's real property laws, it is clear that under ORS 92.017 they no longer have that authority."2° Appellant wholeheartedly agrees with Board Member Holstun's concurrence in Thomas v. Wasco: where parcels exist as legal separate units of land, counties do not have the authority to adopt local laws to say the parcels do not qualify as separate units of land in that county. Here, however, as explained above, the turn of the century parcels in question do not exist as legal separate units of land. This has nothing to do with county authority, but is the inevitable result of the act of creating parcels by deed out of a finite area of land. In describing a closed polygon of 930 acres by metes and bounds in the 1988 deed, OWRD did not create or recreate any interior parcels. Parcels cannot be nested within other parcels as a matter of topology. Weyerhaeuser Real Estate Development Co. v. Polk County, 63 Or LUBA 393, 399, affd 246 Or App 548, 552 (2011). 20 Thomas v. Wasco, 58 Or. LUBA 452 (2009) (quoted in HO, 14) Protecting Centrat Oregon's Natural Environment And Working For Sustainable Communities 8 While we recognize that only a judicial court can make a final determination about what the 1988 deed effectively conveyed, the plain wording and the use of the terms "[b]eginning at... thence ... to .... said corner being the point of beginning of the tract herein described containing approximately 930 acres, more or less" mean that the 1988 deed created only a single 930 -acre parcel. Attachment 2, Quitclaim Deed, 1988. Thomas v. Wasco is inapplicable to this decision where there is only one parcel created by deed in existence, so there is no question of refusing to recognize multiple parcels as separate; and where Deschutes County has no local law refusing to recognize existing legal units of land. 4. Hearings Officer's decision adopts reasoning rejected by LUBA and the Court of Appeals in Weyerhaeuser21 The Hearings Officer found "ORS 92.017 applies to and protects historic units of land lawfully created by conveyance(s) that predate the county's land use regulations" and affirmed the administrative decision in 247 -15 -000222 -LR, 2015. The administrative decision stated: "For property boundaries to be eliminated, supporting evidence of such action is required (e.g. consolidation through a property line adjustment or platting a subdivision or partition.) As noted below, evidence was not found that indicates the subject legal lots of record were consolidated through a property line adjustment approval or platted as part of a subdivision or partition." In asserting that boundaries of parcels created by deed persist under ORS 92.017 unless consolidated "through a property line adjustment or platting a subdivision or partition" the county relies on the same reasoning LUBA and the Court of Appeals rejected in Weyerhaeuser. In Weyerhaeuser the applicant argued that a partition completed by the applicant's predecessor in interest in 1983 was not a "specific process" or "action" to eliminate the subdivision lots created by a 1911 plat. The applicant contended that ORS 92.017 does not recognize partition as a method to eliminate a lot's status as a discrete lot and that the county never undertook any process to vacate or redivide the 1911 lots. Weyerhaeuser Real Estate Development Co. v. Polk County, 63 Or LUBA 393, 397, affd 246 Or App 548, 553 (2011). LUBA rejected this argument, explaining that property lines can be eliminated and lots and parcels vacated or consolidated in a number of ways, including property line adjustments (ORS 92.010(12)) and replats (ORS 92.010(13) and ORS 92.180 to 92.192). Weyerhaeuser Real Estate Development Co. v. Polk County, 63 Or LUBA 393, 398 (2011), affd 246 Or App 548 21 Weyerhaeuser Real Estate Development Co. v. Polk County, 63 Or LUBA 393, affd 246 Or App 548 (2011). "-- Protecting Central Oregon's Natural Environment And Working For Sustainable Communities 9 (2011). Even though the lots were lawfully created in a 1911 subdivision plat, the continued discrete legal existence of those lots in the present depended on the legal effect of the partition by the applicant's predecessor in interest in the 1980's. Weyerhaeuser v Polk County, 246 Or App 548, 550 (2011). The Court of Appeals concluded that, contrary to the applicant's position, a partition had the effect of vacating previous lot lines: "[A 1983] partition had the effect of vacating previous lot lines, at least where, as here, the partition map does not indicate the continued existence of the lots that were partitioned....If multiple lots were redivided into parcels, there was no requirement that the partition of the lots preserve the lines of the previous lots in any way. It is also difficult to imagine that the legislature intended the previous lot lines to survive such a process, creating a spider web of overlapping lots and parcels." Id. at 558. The Court of Appeals also held that ORS 92.017, adopted in 1985, did not restore lots that had been vacated when the lots were consolidated by partition. Id. at 561. Just as the 1983 partition plat in Weyerhaeuser had the effect of vacating previous lot lines, the 1988 deed had the effect of vacating any previous parcel -created -by -deed boundary lines. The main issue in Weyerhaeuser was whether a 1983 partition had the legal effect of vacating the separate lot lines for subdivision lots and of consolidating those lots into newly created parcels (and whether ORS 92.017 passed in 1985 acted to restore those lots). The main issue in this case is whether the 1988 deed had the legal effect of vacating any separate parcel lines for parcels created by deed and of consolidating those parcels into a newly created parcel (and whether ORS 92.017 acted to restore separate parcel lines vacated by deeds prior to 1985.) In both cases a predecessor in interest to an applicant undertook a voluntary affirmative action to create a new arrangement of lot or parcel boundaries of his own land. In both cases the voluntary affirmative action was in accordance with or as provided by law: in Weyerhaeuser the action was a partition as provided by the local law of Polk County; in this case the action was a deed validly executed, delivered, and recorded in accordance with the real property laws of the state of Oregon. Further, in both cases the predecessor in interest wrote a metes and bounds description describing the perimeter of the newly created parcel(s) and did not describe the perimeters of any 1905 -era lots or parcels, or refer to them. The partition and the deed respectively did not appear to recognize even the historical validity of the units of land that occupied the land in the past. In Protecting Central Oregon's Natural Environment And Working For Sustainable Communities 10 both cases, new parcels were created. It is in the nature of parcels that there is no legal, or possible, way to create a discrete lot or parcel that includes within it other discrete lots or parcels. The legal effect in this case is therefore the same as the legal effect LUBA and the Court of Appeals determined in Weyerhaeuser. Just as in Weyerhaeuser the county correctly denied the applicant's request to adjust the non-existent boundaries of lots that were no longer discrete units of land for purposes of ORS 92.017, so here the county should deny the applicant's request to attain lot of record development rights to adjust the non-existent boundaries of parcels that are no longer discrete units of land for purposes of ORS 92.017. See also Atkins v. Deschutes County. In that case LUBA and the Court of Appeals explained that even if any one statutory procedure does not apply to creation and division of lots before current zoning regulations were in place, that "says nothing about whether there were other statutes, regulations, ordinances or principles of common law, which did apply to creation and division of [lots] within the meaning of ORS 92.017." Atkins v. Deschutes County, 19 Or LUBA 84 (1990); Atkins v. Deschutes County, 102 Or. App. 208, 210 (1990). (emphasis added) Finally, as LUBA explained in ONDA v. Harney County, 65 Or LUBA 246 (2012), the execution and recordation of a deed, survey, or legal description is a "formal process that has the legal effect of extinguishing or vacating property lines." "Consolidation of separate discrete lots or parcels is accomplished by means of a property line adjustment or another formal process that has the legal effect of extinguishing or vacating property lines. That requires execution and recording of a document of some type, such as a survey, legal description or deed. ORS 92.017 (lots or parcels shall remain discrete, unless lot or parcel lines are vacated or further divided.)" LUBA's decision in ONDA v. Harney County recognizes execution and recordation of a deed as the type of formal process required to eliminate property lines after the passage of ORS 92.017. See Kishpaugh v. Clackamas County, 24 Or. LUBA 164, 172 (1992): "the functions of ORS 92.017 ... [include] ... to establish that the property lines established by such land divisions remain inviolate, absent the employment of a specific process to eliminate such property lines.... ORS 92.017 requires [local government] recognition of such parcels as separate until some action is taken to erase the lawfully - established property lines." Conclusion We urge you to reverse the Hearings Officer's decision and re -affirm the county's 2005 denial of lot of record status for this property for the reasons outlined above. Thank you for your Protecting Centro/ Oregon's Nalural Environment And Working For Sustainable Communities 11 attention to these views. Please consider this a formal request under ORS 197.615(2) for written notification of any decision in this matter. Best regards, 'arol fvlacbeth Central Oregon LandWatch Protecting Central Oregon's Natural Environment And Working For Sustainable Communities E Community Development Department ,40:41".0110P0,044,1romeotoli, 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ March 23, 2005 Barbara Tyler 1129 NE 12th Street Bend, Oregon 97701 RE: Lot of Record Determination for property identified on Deschutes County Assessor's Map 16-11-00, tax lot 7891; File No. LR -04-37, FINAL DECISION. LTD' Dear Ms. Tyler: You submitted an application for a lot of record determination for the above referenced tax lot. The Planning Division has reviewed the information you submitted with the application, in addition to, records obtained by at the County Assessor's and Clerk's offices. Based on a review of this information, we have determined tax lot 7891 is not a legal lot of record. Section 18.04 of the Deschutes County Zoning Ordinance defines a legal lot of record as a lot or a parcel at least 5,000 square feet in area and at least 50 feet wide, which conformed to all zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel was created. The zoning code limits the means of creating a lot of record to partitioning or subdividing land, recording a deed or contract prior to the adoption of land division regulations, filing a town plat, or the subdividing or partitioning of adjacent or surrounding lands leaving a remainder lot or parcel. Tax lot 7891 was originally conveyed in its current configuration in a Quitclaim Deed dated September 8, 1988, and recorded in Volume 170, Page 581 at the Deschutes County Clerk's Office. At the time of the 1988 deed being recorded, subdivision and partition ordinance PL -14 regulated subdivisions and partitions. When this ordinance was adopted on November 1, 1979, all new parcels in the County had to have been created through a partition approved by the County. There is no record of a partition being completed in County's records for this property. Tax lot 7891 is zoned Forest Use (F1 and F2), Exclusive Farm Use (EFU), Open Space and Conservation (OS&C), and Flood Plain (FP). In addition, the property is within the Landscape Management (LM), Wildlife Area (WA), and Sensitive Bird and Mammal Habitat (SBMH) Combining zones. Any development of this property is subject to the requirements of Title 18, the Deschutes County Zoning code. Quality Services Performed with Pride CaLti (f This decision becomes final twelve (12) days from the date this decision is mailed unless appealed by a party of interest. Sincerely, Cynthia Smidt, Assistant Planner CMS/sIr Cc: Karen Swirsky, DEA LR -04-37, Tyler Page 2 DEC -08-2004 �151 PM TID 5413833287 P.02 88-20;5:72 STATUTORY QUITCLAIM DEED 1 11) UuL ti The State of Oregon, by and through William H. Young, Director of Water Resources Department, Grantor, releases and quitclaims to Tumalo Irrigation District, an Oregon Irrigation District, Grantee, all right and title and interest in and to the following described real property: Set forth in Exhibit A, attached hereto and by this reference included herein, so long as said property is held in public ownership and used as a Winter feeding area for wildlife satisfactory to the Oregon Department of Fish and Wildlife. When said property is no longer owned by Tumalo Irrigation District or another public body, or is no longer used for public purpose including use as a winter feeding area for wildlife satisfactory to the Oregon Department of Fish and Wildlife, the interest of the Grantee, or its assigns, shall automatically terminate and revert to the Grantor. The true consideration of this conveyance is other good and valuable consideration promised, including a commitment by Tumalo Irrigation District to involve local residents and the community before maXing decisions on use and management of the land or granting easements. This instrument will not allow use of the property described in this instrument in violation of applicable land use laws and regulations. Before signing and accepting this instrument, the Statutory Quitclaim Deed l'a GIST -DEE TIPS dll vosinced doloH Cot Page 1 oft,T:eo so *2 .4010 ,DEC -00-2004 01:51 PM TID 5413833207 P.03 .1:tu ubM:L person acquiring fee title to the property should check with the appropriate city or county planning department to verify approved uses. Dated this 2/ day of STATE OF OREGON )ss. County of Marion , 1988. THE STATE OF OREGON Water Resources Commission , 1988. Personallyappeared the above-named William H. Young, who, being duly sworn, did say that he Is the Director of the Water Resources Depar.tmea,t of the State of qtegov., and that said instrument was signed on its behalf and by its authority; and be acknowledged said instrument to be its voluntary act apd,deed. Before mel .•'' • , • I ; ••••••••• - ‘7- Or oc'' Wotar Pub Ac for Oregon My Cornmission Expires: (<-=4Jk;) Statutory Quitclaim Deed Page 2 a'd 8't -OCC TiPS dll u0sined dolcH dipT:E0 SO 4- 8 -101U -DEC -08-2004 01:51 PM TIE EXHIBIT A (1 of 3) 1. to e . C. . tarr Deschutes b. city r . Bend 2. Sine • . p of w ■t 930 3. Legal description a. Indicate des ipti (1) Bog thence thence U. th co S. thence S. thence S. 5413833287 P.04 land is recorded, Sere 1 separate setae described .• toll the E# c r of Sea. 30, S. 16 S., R. 11 Z., W.M. 071 W. 998'1 % ' V. W. i73.2' .51; 1t S. 0° mss' X. 175.3' i thence S9°44' W. 157.54; 53' E. 170.2'; t ce P. 19° "45' W. 110.91; 45' W. 165.41;thence 8. 54• 20' W. 194.1'; thence S. 24° lc?' E. 171.1'1 thence S. 13° 03' W. 350.3'1 thence S. 23° 581 W. 169.4"; thence 9. 39" 40' w. 129.9k1 thence 9. 59" 36' W. 139.7'; thence S. 20" 33' W. 140.0'; thence S. 40° 40' W. 145.5'; thence 3. 73° 09' W. 94.8"; thence 9. 21" 31' W. 197.3"; nce S. 34' 04' V. 220.%,1 the 3. 20" 2.2' W. .2°, rice 9, 34026. tJ. 213,9 ' 1 the...,. S. 46" 03' W. 164.9't mos S. 55' 53' V. 213.4+! thence S. 63° 26' W. 356.5'3 thence S. 50" 27' W. 227,5'; Macucci S. B9" 57' W. 547.3' a or leas to the Si cor, sec, 30, T. 4 ., R, 11 E.W.H. thence 8, along the Waist line of the Wi to the center of Sec. 31, T. 16 S., B. 11 'F_W.B.j thence seat alone South line of said x' ;# to the 174 scar. est icl Sea. 311 then .9. cw the « at .Tree at Ser. 32, F. 16 .9., R. 11. E.W.M. to * point 2540.2' N. of the SW aor,. of id ■esti=.f thence S. 76° 49' E. 199.3'; thence N. 76° 5' F. 72.5+; thence W. 54° 19' F. 175.0'; thence N. 840 1,5' E. 2l2.0'; thecae S. 71° 49' E. 224.0f/ Hoer P . B7" 45' E. 399.0' theme 8. X5 UP' P. 632.0* 1 t .: ..oe 14. 37^ 42' E. 395.0' the. N. 36° E. 336.0 "1 . 430 20' E 274.0'; thence S. 56 X. 649.01; t e N. 44° 22' 4', 454.0+ thence N. 73'54'E. 305.0'3 t e B. 82° 54' E. 2.75.0'} thence N. 64" 07' E. .0'; S. 20° i then S. 3' 20' E. 85.8' t ° 39 ° !290,] ' ' L thence S. i . 21 1S + W. 244.1' i L4° 56' E. 475.7'1 t nc 5. 3° 2:0 V. 262.0'; thence S. 15° 06' W. 431.6'; t rice N. 81° 43' I. 251.8' then 3. ° 59+ E. 281.011 t- noes S. 72" 09' P. 252.9'; S. 41'0 33.' E. .4'+* 1 t o S. ,S° 09' I . 277.7' 5. 71" 2.3 i''. .9 S, 71" 51' W. 333..1+; t • S. 520 31.' W. ], 83° 271 73.1' 1 E'd 8ISI-0EE IBS d -I"1 uosined 9 ddoH d,i:Eo so 1.2 Jdu ;.DEC -08-2004 01:52 PM TID T •d 5413833207 EX}IIB.T,T A• (2 of 3) . 69° 01 • t:, 206.0.1 nee S. , 45" 09' E. 153.2'1 nes S. a W. 267.0'1 4?• 2,3' W, 436,4' to a i .tb 1r�•s ctio r 32; tbenon neater point outh r. oftho8 8g m aathen Ilsas t at t0 of uii!d Ssa.1 there of t'b. TIB} See. 5, T. 2 to the south 1.tna of NO said. Soo. south line of the N4 t* the Ei nor. sold p.05 7.7ti m U the Qua 3., Ranee or Sao. 4, a '!3 a c of 710.0 toot t'entt than North 584' 23' 53e 291 Emit 1 . a+„i t feet, thence ° 45 • .. Horth ;los of the of the mecti ; the r 35' a64 de eoriboa Of the shoos dee__ North 89° 35• East &dove de South 421' 3215.0 f South 2° 136.3, !t 77° 05'' above desert' 866,1 feet to r o to ti 4 N•i thence b along 178., iinnee 11 E.W.H. , North 634 060 East 367.2 0.1 f ti thence North h 6" 551 Fiat 262.5 1 r the .0 foe 0 at 915. fen t theee noe a 00' East .6 foe, point on forty so cti then be Nr rn 4, T. 17 S., R. 'I E.WFS.;T of the 3F r. - thanes N, a PWr'mt. 132'0to the NI ct'r. of Sect. 4 theme N. 563.5'; thence S. 064 %' most 6C1.4't i the ce S. 6 06' W. 32..!'; Thence N. 05° 16' f''. 64.01; , ° o6I W. 3..23.2' thence Y. 76° 44' W. 87.0"; thence r, 66" 31' V. 95..4' i thence N. 65° 11' W. 204.0' thence N. 55° 06'' W. 210.5i; thence R. 56' 46' W. 219.0'; thence H. 71" 26' W. 98.x.' •; thence S. 83 04' V. N. 62.8'; thence N. 44° 36' W. 261.51; thence thence N. 38° 26' W. 56.9' l9° S8 t 113.' i "� the we at se, c. 33, r, S.,16ec line ortst sE� ;�, � R. 11 E.k.K, thence . id u',st ,11 to the HW corner of the SF t .N SWi; thence wet on the N. of the SW. SWi or maid swot & to the NW o then N. ore the RJ. line tc the k r. car, car. . �. ld Sac. 33; then V. an the half section line to the SE ear. ofthe - SW/ I714 of sae. 32, T. 16 s., I'. 1.1 E., 'l+.M.; thence 1e. on the E. lirtis of id SW1 W;,: to tho NE car. the of; thou W. the 1!. line of maid S14* }!E} to the 11W oar. t o 11. on center li of Seat& • 32 and 29 to of the SEi MO Sac. 29; rune W. on the N. 3,Ln,, .1 NW1. to the NW o . t ori thence S. on the td 98 Mei to t et W c ue>" ;._ . roof; therioe truth 1 of the SW,g to the 1.4 T. 16 9., . .,W,M./ a er Woof. e Sne `� o of herein oa - the utyxn1nyg a point on the described h11 the NE thane* cent the SEi NWt of t 58.0 feet; thence th 50" 46' East 7 feet thence 29e 29' Bast feet; thaoce t line of t,, h 0" 03' Waist NW4 of Section proxi..ae t e],f 930 aortae, or lomat GIST -a c 149 dil uostned I ddo{-{ dfr2 : c0 s0 42 ,DEC -08-2004 elvss PM TID z • d EXHIBIT A (3 of 3) 5413833287 P. 06 Excepting and reserving to itself, its successors, and assigns all minerals as defined in ORS 273.775(1), including soil, clay, stone, sand, and gravel, and all geothermal resources, as defined in ORS 273.775(2), together with the right to make such use of the surface as may be reasonably necessary for prospecting for, explocing for, mining, extracting, reinjecting, storing, drilling for, and removiag, such minerals, materials, and geothermal resources. In the event use of the premises by a surface rights owner would be damaged by one or more of the activities described above, then such owner shall he entitled to compensation from state's lessee to the extent of the diminu- tion In value of the real property, based on the actual use by the surface rights owner at the time the state's lessee conducts any of the above activities. BLST-DEE Tirg STATI OF ORIG ) SS, «fllNTYOfb UTESI I. MARY SUE PiNkt0110if, couwrr cu *NO fitC0110111 OF CONVEYANCIS, IN ARO FOR SAIO COUNT!. DO HERESY CERTIFY THAT THI WITHIN INSTRUMENT WAS WORM. INTO OAP; BY. NO. 57Z, FEE U COUNTY OFFICIAL. RECORDS dil uos Ina,' doloH citra;E0 SO +a Jolu 7891 RGE. E. SEC. TAX LOT FTV' PE IrrN MAF NUMBER NUMBER REAL PROP. ACCOUNT NUMBER ailiiimitegiag14#410010MaggIONWOO6M40. Card #I 2-6 CODE AREA NUMBER ADDITIONAL DESCRIPTION AND RECORD OF CHANGE Cmit1nuw) th S alg W in of NE1/4 to ctr th 1111 t th th t tLt 11thh Sec 31 T16S R1IEWM E alg S in of NE1/4 to E1/4 cor of sd Sec 31 S on W in Of Sec 32 T16S R11EWM to pt 2540.2 ft N of SW cor ps3fft 10 27125..0 ft 224.0 ft 00 ft ft ft t t 1 sd Sec 32 th Wiv on S in to SW cor of sE1/4sg14 .th th th 11 th th th t tz o- sd Sec S on W in of E1/2 of NP6 Sec 5 T17S ' RI1EWM to S in ot NE1 sd Sec 5 E on S in of NEr, to F¼ cor sd.Sec 5 Nal V in of Sec T 7S R11EWM 710.0 ft ,N61gA r P E t ftN53°29' 0"E 8 .5 ft NW55'00"E 262.5 ft N8j°45'00"E J58.1 ft to pt on N in ofgof NWVof'abv.desc Se lp N89 3 '00"E on N in of SW1/411W1/4 181.0 ft to Eyip): of SWVNW'f. N8935 00"E on A in of SE1/4NW1/4 of pc, m orlw.sitof 458.00 ft flO 'f0 Mu 1it i29.9 ft yv ° ft 'T 6.3 it g914 MI R to pt on E in 0 a P4 -4 --4 OFFICIAL RECORD OF DESCRIPTIONS OF REAL PROPERTY DESCHUTES COUNTY ASSESSOR'S OFFICE FORMERLY PART SUBDIVISION OF T.L NO. Omitted (Continued On car2) 1 RECORDING , DEER !RECORD ACRES DATE vOL. M REMAINING 16 11 me* 7891 TWRS. ROE E. SE 114 I/10i Tx( LOT INT. IN MAP N JM BEA NUMBER REALPROP ACCOUNT NUMBER Card #2 tn ,)iy0csV: N 5 p N t 11 tn th It 1 1 It 1 +t 1 ' t 1 th ti11 t 1th th th th th 1 2-6 CODE AREA NUMBER 14 OFFICIAL RECORD OF DESCRIPTIONS OF REAL PROPERTY DESCHUTES COUNTY ASSESSOR'S OFFICE ronm LY PART OF T.L. NO, Omitted SUBDIVISION ADDITIONAL DESCRIPTION A RECORD OF CHANGE uo n t inued from ru cor lEWM t to N4 cor Sec 4 .0 tt .5 ft .0 ft 56.9t N e d W to W in of 33 T 6S RI1EWM In to NW cor of on .n of sW¼Sw¼ Non n to W or Igg omin to SE on n Mr,N1A? tp on N in of SANE1/4 an N -S ctr in See to NE cor of SE4NWN W on N in of SENNW% S on W in of SE1/4N.Wk W on S in of SAVE1/4 Sec 29 T165 R11FWM sd cor being POB Sec t'o NW cor Sec 33 cor ot SIO4NE14 Sec 32 NE cor to NW 29 32 & cor . Sec 29 to NW cor to SW cor to W¼ cor lumalo Irrigation District RECORDING 1L t' )1E60110 Card 1) ° DATE VOL. I PCI ACRES REMAINING R.C. 901 496 930.00 Q.C. 9-12-88 170 581 File: Applicant: Tumalo Irrigation District BEFORE THE BOARD OF COMMISSIONERS FOR DESCHUTES COUNTY, OREGON RECEIVED 31': i4 17) 2 2016 uCLIVERED BY: 247 -15 -000222 -LR, 247-15-000430-A, 247-15-000633-A Attorney Liz Fancher for Applicant: 644 NW Broadway Street Bend, Oregon 97701 541-385-3067 (telephone) 541-385-3076 (fax) liz@lizfancher.com Request: Lot of Record Determination Property: Tax Lot 7891, Assessor's Map 16-11-00 TUMALO IRRIGATION DISTRICT'S FINAL ARGUMENT This case involves an appeal of a lot of record determination in which the County is interpreting and applying its own code, DCC 18.04.030, Lot of Record. Central Oregon Landwatch (COLW) has filed an appeal of the decision of Hearings Officer Karen Green that determined that Tax Lot 7891 is comprised of 8 legal lots of record and parts of four parcels illegally divided by a 1988 deed from the State of Oregon to Tumalo Irrigation District (TID). On January 11, 2016 COLW filed written arguments in support of its appeal. TID also filed written arguments with the Board on January 11, 2016. This document provides a proposed interpretation of the County's "lot of record" definition that is consistent with the County's application of its "lot of record" code requirements in prior lot of record applications and in this case. If the Board affirms the hearings officer and staff decisions, TID asks that this or a similar interpretation be included in the Board's decision so that LUBA and appellate courts will understand the interpretation and defer to it. This document also provides a response to COLW's specific claims. Much of the response was provided in TID's January 11, 2016 comments but is repeated here so that all responses are provided in one document. Summary of COLW Claim COLW claims that the 1988 State of Oregon deed created an illegal "930 -acre property" that eliminated the boundary lines of more than twelve parcels located in whole or part within the boundaries of the 930 -acre property that is not and never may become a legal lot of record. The 1988 deed divided at least four parcels, leaving parts of each outside of the boundaries of the "930 -acre property." It, therefore, created at least five lots and was an unlawful subdivision. Page 1 of 10 — TID's Final Argument, File 247 -15 -000222 -LR Deschutes County required subdivision or partition approval for any division of land in 1988 and subdivision approval for divisions that created four or more lots. COLW's arguments assume that Deschutes County cannot interpret its lot of record ordinance to afford "lot of record" status to any of the 12 parcels that were created in a way that meets the definition of a "lot of record" provided by DCC 18.04.030, Lot of Record. COLW cites no provision of County code that requires this result. Instead, it faults the County for applying ORS 92.017 to determine what parcels existed in 1988 and today and to determine the legal effect of the 1988 deed on these parcels as a matter of real property law. Proposed Interpretation of County Code The County's definition of lot of record has been interpreted to require that any property proposed for development be a lot of record. This requirement is applied to all lots and parcels; not just substandard lots and parcels. The following interpretation explains and supports the County's established interpretations and application of its code. The definition of "lot of record" requires the County to determine whether a potential lot of record was a "lot" or "parcel" when created. The County code defines these terms to generally follow the definitions of ORS Chapter 92. The terms are used to determine the boundaries of existing units of land that may or may not be legally established. Other provisions of the County code explain when lots and parcels must have been lawfully created in order to be developed or divided. DCC 17.08.030, Lawfully Established Unit of Land; DCC 18.04.030, Lot of Record (A)(must conform to applicable land use laws). The County's definition of a lot of record also imposes requirements of compliance with County land use laws in effect when lots and parcels were created. The issue of whether lots and parcels remain lots and parcels after they have been created is addressed by ORS 92.017. ORS 92.017 is written to control the outcome of this issue. It provides that the boundary lines of a lawfully created lot or parcel remain valid until vacated as provided by law. The County's lot of record ordinance applies additional conditions to determine whether lots and parcels qualify as lots of record. The County staff and hearings officer have determined that eight lots located entirely within the boundary of Tax Lot 7891 meet the County's definition of a lot of record. COLW's legal argument on appeal does not fault the County's application of the term lot of record to any particular deed transaction that occurred prior to 1985. The definitions applied by the administrative decision and hearings officer's decision are: "Lot of Record" means: A. A lot or parcel at least 5,000 square feet in area and at least 50 feet wide, which conformed to all zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel was created, and which was created by any of the following means: Page 2 of 10 — TID's Final Argument, File 247 -15 -000222 -LR 3. By deed or contract, dated and signed by the parties to the transaction, containing a separate legal description of the lot or parcel and recorded in Deschutes County if recording of the instrument was required on the date of the conveyance. If such instrument contains more than one legal description, only one lot of record shall be recognized unless the legal descriptions describe lots subject to a recorded subdivision or town plat. 5. By the subdividing or partitioning of adjacent or surrounding land leaving a remainder lot or parcel. "Parcel" means a unit of land created by a partitioning of land. "Partition Land" means to divide land into two or three parcels within a calendar year'. "Lot" means a unit of land created by a subdivision of land. "Subdivide lands" means to divide land into four or more lots within a calendar year. The definition of "lot of record" makes it clear that units of land created by deed or land sales contract can qualify as lots of record and that the units of land created by deeds or contracts are either "lots" or "parcels." If the term "lot or parcel" applied only to lots and parcels created by "modern day" partitions and subdivisions2 no unit of land created by a deed would ever qualify as a lot of record. This would violate the express language and intent of the County in adopting section (A)(3) that specifically states that lots created by deed can qualify as lots of record. The County's definitions of the terms "lot" and "parcel" do not require that the act that created the lot or parcel be a modern day partition or subdivision. The means of creation is absent from the definitions of "partition land" and "subdivide lands" that are used to define lots and parcels. The same is true for the similar terms employed by ORS Chapter 92.3 As a result, any time a unit of land is divided by an historic subdivision, modern day subdivision or partition, or by deeds and land sales contracts the resulting units of lands are either lots or parcels for purposes of the County's lot of record law. 'The remainder of this definition reads: "Partition land does not include divisions of land resulting from lien foreclosures, or recorded contracts for the sale of real property and divisions of land resulting from lien foreclosures, or recorded contracts for the sale of real property and divisions of land resulting from the creation of cemetery lots. Partition land does not include a division of land resulting from the recording of a subdivision or condominium plat. Partition land does not include an adjustment of a property line by the relocation of a common boundary where an additional unit of land is not created and where the existing unit of land reduced in size by the adjustment complies with any applicable zoning ordinance." 2 "Modern day" land divisions are partitions and subdivisions approved under the authority of ORS Chapter 92, the State law that creates provisions for partitions and subdivisions that apply across the State. In this case, Deschutes County adopted an ORS Chapter 92 subdivision ordinance in 1970 and a partition ordinance in 1977. 3 The June 10, 1985 testimony of Al Young, Chair of the House Committee on Housing and Urban Development to the Senate Committee on Energy and Natural Resources when it considered House Bill 2381, explains that the Legislature intentionally removed language from the terms "lots" and "parcels" that limited their application to local subdivision and partition processes adopted in accordance with ORS 92 laws adopted in 1973. The effect of this change was to broaden the definition of lot and parcel to include units of land created by deeds and pre -1973 subdivisions. Page 3 of 10 — TID's Final Argument, File 247 -15 -000222 -LR A deed that creates three or fewer units of land creates a "parcel." A deed that creates more than three units of land subdivides land and creates a "lot." In most cases, deeds that create new parcels partition a parent parcel. This occurs when a property owner conveys a part of a lawfully created parcel and retains the remainder. Prior to April 5, 1977, this method of dividing land was lawful and the only means of creating new parcels.4 On and after April 5, 1977, the date the County adopted its first partition ordinance, a "modern day" subdivision or partition approval from Deschutes County was required to create new lots or parcels. Deschutes County's lot of record definition does not require that lots or parcels held in common ownership at the time of application or at some point in time in the history of the property be aggregated for purposes of development. Any unit of land created by a deed prior to April 5, 1977, therefore, is a lot or parcel that may qualify as a "lot of record." Their boundaries exist until they are vacated by a lawful vacation process such as a County -approved lot consolidation or by the approval of a partition or subdivision plat. Lot and parcel lines cannot be vacated by a deed between private parties without approval of a lot consolidation. The interpretation of the County code, above, is consistent with the rule established by ORS 92.017 that says that the property lines between lawfully created parcels remain valid until vacated as prescribed by law. No provision of Oregon law has been identified or found that provides that deeds that convey legally created parcels together eliminate parcel boundaries. No provision of the County's land use law vacates the boundary lines of existing lots and parcels conveyed on a single deed. Deeds that create lots and parcels may contain one or more legal descriptions. If multiple legal descriptions are used, only one lot of record will be recognized as having been created by that particular deed. This fact does not eliminate lots or parcels created by previopsly recorded deeds because the lot or parcel meets the requirement of having been created by a separate description in a prior deed. Furthermore, lots and parcels created by deeds may also qualify as lots of record as remainder parcels. In this case, all lots of record were created by a separate legal description on a deed/patent or as remainder lots.5 In the event this part of the code is deemed relevant to the facts of this case, it means that using separate legal descriptions on a deed is not a valid means of creating new lots or parcels — nothing more. Response to COLW's Claim that the 1988 Deed Consolidated Parcels In 1988, eight existing parcels and parts of 4 existing parcels were conveyed by the State of Oregon to TID. These parcels are shown on Figure 3 (Lots F, G, K, L, M, N, 0, P, Q, R, S, T). All twelve parcels meet the County's definition of a lot of record. The legal effect of the 1988 4 Subdivision plats allowed property owners to create lots at this time but no similar process was provided for partitions that created parcels. 5 The question of whether the County's limitation of one lot of record per deed is valid given the holding of Thomas v. Wasco County, 58 Or LUBA 452 (2009) is not presented because the County has found that the lots of record were created by deed or were remainder parcels. COLW's only objection to these findings regarding the creation of the historic parcels is to fault the County for considering the provisions of ORS 92.017 in determining whether units of land are separate lots and parcels that may qualify as legal lots of record. Page 4 of 10 — TID's Final Argument, File 247 -15 -000222 -LR conveyance on these 12 lots of record is the only issue addressed in the January 11, 2016 written arguments COLW filed with the Board. COLW claims that State law prevents Deschutes County from finding that any of these parcels are lots of record because their property boundaries were eliminated by the 1988 deed as a matter of real property law. There are a number of problems with COLW's claim. First, COLW does not cite any case or statute that authorizes private parties to consolidate lots or parcels by deed. Second, ORS 92.017 had been adopted by the State. It expressly provides that the parcel lines of the parcels conveyed on the 1988 deed would remain discrete parcels unless vacated or divided as provided by law. No legal process was undertaken to vacate parcel boundaries. Third, State law required County land use approval to consolidate existing lots and parcels in 1988 and to create new lots and parcels and no such approval was obtained. See, South v. City of Portland, 48 Or LUBA 555 (2005)(boundaries of lots conveyed on a single deed did not eliminate lot lines; City could not eliminate lot lines by approval of a lot line adjustment). Fourth, the 1988 deed that allegedly consolidated existing parcel boundaries illegally subdivided land rather than being a lawful means of consolidating parcels and parts of parcels. TID wishes to correct the illegal division of land that occurred in 1988 by trading land with the State so that the two parts of each parcel divided in 1988 are reunited. Fifth, nothing in State law requires the County to interpret its lot of record law to vacate property lines between lots and parcels or between lots of record created by deed. The following section explains why each of COLW's claims raised in the notice of appeal and in the specific comments section of their January 11, 2016 written arguments are without merit. Response to Specific COLW Grounds for Appeal Appeal Issue One/Specific Comment 1 COLW: New evidence is irrelevant because a 2005 lot of record decision filed by Barbara Tyler "was a legal determination that the State's conveyance of all the land in a single deed in 1988 meant that ***separate historic parcels no longer existed." Response: The County's 2005 Tyler lot of record decision decided that the 1988 deed did not create a legal lot of record because partition approval was required but was not obtained. That is all that it decided. In 1988, deeds were not a lawful means of creating lots and it was not legal to consolidate existing parcels without County approval. No County approvals were obtained. As a result, the 1988 deed did not eliminate existing, lawfully created parcel lines. DCC 22.28.040(B) specifically allows TID to reapply for a lot of record determination if it presents evidence not submitted with the 2005 lot of record application. The deed and patent records filed by Tumalo Irrigation District are new evidence. The deeds and patents are relevant because DCC 18.04.030 "Lot of Record" says that parcels created by deed may qualify as legal lots of record. Page 5 of 10 — TID 's Final Argument, File 247 -15 -000222 -LR Appeal Issue Two COLW: The hearings officer was wrong in finding that wildlife protections imposed as deed restrictions in the 1988 deed from the State of Oregon to Tumalo Irrigation District are irrelevant to the lot of record determination because a lot of record verification is a prerequisite to development. Response: The hearings officer was correct. Deed restrictions are not land use laws. They are a contract between the State of Oregon and TID. They cannot be used to decide County land use cases. ORS 197.015(10); ORS 197.175(2)(d)(County to make land use decisions based on acknowledged comprehensive plan and land use regulations); ORS 197.763(5)(b)(arguments must be directed toward criteria in plan or land use regulations). Appeal Issue Three/Specific Comment 2 ORS 92.017 does not apply to parcels created by deed because the parcels are not a unit of land created by partitioning [as defined by ORS 92.010(9)]. Response: The real issue is whether parcels created by deeds meet the County's definition of a "lot of record." DCC 18.04.030(A)(3) says "a lot or parcel * * created by any of the following means ** by deed or contract ***." If a parcel is a unit of land created by partition plat only, it would- never be possible for a parcel created by deed to become a legal lot of record — something clearly not intended by the code. COLW's argument that parcels created by deed are not protected by ORS 92.017 has been rejected by LUBA in numerous cases, including Joseph v. Baker County, 33 Or LUBA 38 (1997), Tarjoto v. Lane County, 34 Or LUBA 124 (1998), Smith v. Jackson County, 37 Or LUBA 779 (2000), Masson v. Multnomah County, 48 Or LUBA 100 (2004); and Porter v. Marion County, 56 Or LUBA 635(2008). No legal case supports COLW's argument. COLW's claim that Just v. Lane County, 50 Or LUBA 399 (2005) directly contradicts the hearings officer's finding that ORS 92.017 applies to parcels created by deed is false. The Just case involves the interpretation of the term "ownerships" and does not involve an interpretation of ORS 92.017.6 6 COLW cites text in Footnote 3 of the Just case that cites the definitions of the tei ins "lot" and "parcel" from ORS 92.010. It also says that ORS 215.010(1) adopts the definitions of ORS 92.010 except that it adds units of land created by deed or land sale contract before land use regulations applied. COLW has argued that this "addition" means that the term "parcel" used in ORS 92.010 does not include parcels created by deed — a conclusion that is inconsistent with prior LUBA decisions that apply the protections of ORS 92.017 to parcels created by deeds. The legislative history of House Bill 2381 shows that the ORS 92.010 definition of "parcel" was broadened in 1985 to include lots created by pre -1973 subdivisions and by deed to lots created by 1973 and later land divisions. The definition of "parcel" applied in farm zones only was narrowed by ORS 215.010(1) by the addition of a requirement that all parcels in farm zones_be lawfully created. Note: ORS Chapter 215 has been amended since 1985 to apply to forest zones as well. Page 6 of 10 — TID 's Final Argument, File 247 -15 -000222 -LR COLW's claim that parcels created by deed have not been created by "partitioning land" as the term is defined by ORS 92.010(9) is wrong. State law, ORS 92.010(9), defines "partitioning land" as "dividing land to create not more than three parcels of land within a calendar year" by any means; not only by a County -approved partition plat.7 The term was amended in 1985 so that "partition land" will include units of land created by deeds. In 1985, the Oregon Legislature amended the terms "parcel," "partition" and "partition land" by removing language that limited the terms to ORS Chapter 92 land divisions. This change broadened the definitions to apply to units of land created by deeds and historic subdivisions. Al Young, the Chair of the House Committee on Housing and Urban Development that crafted ORS 92.017, testified to the Senate Committee on Energy and Natural Resources about House Bill 2381 on June 10, 1985 that the definitions of "lots" and "parcels" were changed to include units of land created before 1973. Mr. Young testified as follows: "As I said, the second element of the bill deals with units of land that were legally created prior to the existence of subdivision and partition statutes. When these statutes were enacted in 1973, they did not address units of land that were created before that date. Neither has legislation since 1973. Current statutes recognize units of land in two types: "Lots" and "Parcels," both of which rely for definition on local subdivision and partition processes adopted in accordance with statutes first enacted in 1973. HB 2381 replaces references [in the definitions of "Lot" and "Parcel"] to specific statutes with language that, essentially, says that if a lot or parcel was created in a lawful manner — meaning according to laws in existence at the time it was created — it is still recognized as a legitimate lot or parcel [by ORS 92.017/HB 2381], and does not need to be reevaluated under current law to be recognized as such." Furthermore, COLW's interpretation of ORS 92.017 cannot be correct because it would render the State's subdivision control law unenforceable. The subdivision law and ORS 92.017 use the same definitions of "lot" and "parcel." ORS 92.025(2) prohibits the sale of a "parcel in a partition" until a partition plat has been filed. If a "parcel in a partition" only means parcels created by a County -approved partition plat, rather than a partition that occurs due to the recording of deeds, it would not be illegal to divide land without County approval. Appeal Issue Four/Specific Comment 3 COLW: The hearings officer incorrectly interpreted LUBA's decision in the Kishpaugh and Thomas cases as holding that ORS 92.017 applies to lots created by deed. Parcels are created by private deed transactions that the County can't regulate. Lot lines "fall way" based on private transactions. Response: The hearings officer's interpretation of the Kishpaugh and Thomas cases is correct. It is also consistent with the holdings or discussion of ORS 92.017 and parcels created by deeds 7 Certain acts, such as a lien foreclosure, are excluded from this definition. Page 7 of 10 — TID's Final Argument, File 247 -15 -000222 -LR contained in numerous other LUBA cases including Joseph v. Baker County, 33 Or LUBA 38 (1997), Tarjoto v. Lane County, 34 Or LUBA 124 (1998), Smith v. Jackson County, 37 Or LUBA 779 (2000); Masson v. Multnomah County, 48 Or LUBA 100 (2004); Porter v. Marion County, 56 Or LUBA 635(2008).8 The County is clearly authorized and required by State law to regulate the creation of lots and parcels and was so authorized in 1988. State law requires the County to regulate the creation of lots and parcels by County land division regulations. ORS 92.044. State law also grants counties the authority to review and approve lot consolidations. ORS 92.010(9),(12). Lawfully created parcel lines created by deeds do not "fall away." ORS 92.017 says that they remain in place until governmental action occurs to eliminate the lines. LUBA agrees. Smith v. Jackson County, 37 Or LUBA 779(2000)(conveyance of three parcels in one deed in 1993 did not vacate the property lines between the historic parcels). COLW has cited no law that supports its claim that the 1988 deed effected a consolidation of existing lots as a matter of real estate law and no such legal authority for the proposition has been found by a search of real estate case law in Oregon. ORS 92.017 appropriately guided the Hearings Officer in determining the legal effect of deeds in creating lots and parcels. Lot creation is a state-wide issue governed by ORS Chapter 92. While ORS 92.017 does not prevent the County from imposing requirements that substandard lots or parcels be developed together or comply with County zoning rules, it prevents the County from eliminating lawfully created lot lines. Furthermore, the fact that the County may not be required to apply ORS 92.017, the County retains the right to interpret its own code in a manner that is consistent with the rules of ORS 92.017 as long as the interpretation is plausible. COLW has not claimed or shown that the County's interpretation is not plausible. Appeal Issue 5/Specific Comment 4 COLW: The holding of LUBA's Weyerhaeuser case was not applied by the hearings officer. If applied, it would prevent the County from finding that more than one lot exists within the "parcel" that COLW believes was created by the 1988 deed. Response: The Weyerhaeuser case is not "on point." It determines the legal effect of a partition plat on subdivision lots; not the legal effect of recording a deed on parcels created by deed. The boundaries of the Weyerhaeuser lots were eliminated by a lawful partition approved before ORS 92.017 was adopted. In the TID case, the deed to TID was not a lawful means of dividing land and ORS 92.017 was in effect and told TID that the historic lot boundaries would remain in place. Furthermore, the Oregon Court of Appeals considered the Weyerhaeuser case on appeal and did not follow LUBA's reasoning that lots cannot exist inside a parcel. Instead, the Court of Appeals found that a partition plat eliminates lot lines of lots within the boundary of a new partition parcel based on the text of the State's 1981 subdivision and partition law that allows the platting 8 These cases are discussed in TID's Final Argument filed with the hearings officer. Page 8 of 10 — TID's Final Argument, File 247 -15 -000222 -LR of multiple parcels into new parcels.9 The Court makes it very clear that its decision is based on this law as written in 1981. That law does not apply to deeds recorded in 1988. Finally, COLW has not established that the County must interpret its lot of record definition to eliminate the lot lines of parcels conveyed together on a single deed, including lots and parcels that comply with minimum lot size requirements, simply because the deed uses a single legal description to convey multiple parcels. LUBA's decision of the Thomas case requires that the County must identify some legal basis for treating this type of legal description differently than any other "so that future development rights do not hinge on apparently arbitrary differences in the wording or form of deed." See, page 14, Decision of Hearings Officer Green quoting Thomas. No such legal basis was found so the County interpreted its lot of record code to respect lawfully created lot lines. The case of ONDA v. Harney County, 65 Or LUBA 246 (2012) does not, as claimed by COLW, recognize that the execution and recordation of a deed, alone, eliminates property lines. Instead, it says that a document of some sort, such as a deed or survey, is required to effectuate a property line adjustment or another formal process that has the legal effect of vacating property lines and that consolidation will not be found to occur — even where consolidation was required by a prior approval granted by the County (a lot of record dwelling approval). Appeal Issue 6 COLW: The hearings officer failed to recognize that a deed may eliminate parcel boundaries and that a lot line adjustment is not necessary to do so. COLW is wrong. In 1988, a deed did not create lots and it did not consolidate lots. Smith v. Jackson County, 37 Or LUBA 779 (2000)(conveying three parcels in one deed in 1993 did not vacate the property lines between the parcels; a vacation of lot lines must occur through a "specific process"). Furthermore, COLW has cited no Oregon case or law that says that deeds had this effect prior to the adoption of ORS 92.017. Appeal Issue 7 COLW: The County must find, as a matter of law, that a deed that conveys land by a metes and bounds legal description conveys one parcel and eliminates all existing, lawfully created lot lines. 9The Court of Appeals explained: "We conclude that, under the statutes applicable at the time of the 1983 partition, a partition had the effect of vacating previous lot lines, at least where, as here, the partition map does not indicate the continued existence of the lots that were partitioned. Under those statutes, a parcel and a lot were each "a unit of land," created by either a partition (parcels) or a subdivision (lots). ORS 92.010(1), (6) (1981). To "partition land" was to divide "an area or tract of land" that "exists as a unit or contiguous units of land under single ownership" into two or three new units, or parcels. ORS 92.010(8) (1981). A partition, then, could divide an owner's single existing parcel or lot, or it could divide an owner's multiple contiguous parcels or lots, into two or three parcels." Weyerhaeuser, 246 Or App 548, 558, 267 P3d 855 (2011). Page 9 of 10 — TID's Final Argument, File 247 -15 -000222 -LR No provision of law supports this claim. Furthermore, such a finding would violate ORS 92.017 which says that existing lot lines remain until vacated by a means prescribed by law such as a replat or lot consolidation. Respectfully sub Ited this 22nd day of January, 2016. Liz Fancher, Attorney for TID Page 10 of 10 — THY s Final Argument, File 247 -15 -000222 -LR Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.or BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., MONDAY, FEBRUARY 29, 2016 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be considered or discussed 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. Business Meetings are usually recorded on video and audio, and can be viewed by the public live or at a later date; and written minutes are taken for the record. 1. CALL TO ORDER 2. PLEDGE OF ALLEGIANCE 3. CITIZEN INPUT This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues that are not already on the agenda. Please complete a sign-up card (provided), and give the card to the Recording Secretary. Use the microphone and clearly state your name when the Board Chair calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing not being conducted as a part of this meeting will NOT be included in the official record of that hearing. ff you offer or display to the Board any written documents, photographs or other printed matter as part of your testimony during a public hearing, please be advised that staff is required to retain those documents as part of the permanent record of that hearing. Board of Commissioners' Business Meeting Agenda Monday, February 29, 2016 Page 1 of 6 ACTION ITEMS 4. DELIBERATIONS on Tumalo Irrigation District Lot of Record — Cynthia Smidt, Community Development Suggested Actions: Conduct deliberations on Lot of Record issue. 5. A PUBLIC HEARING (continued from January 27) on Widgi Creek Development Application - Fairway — File #247 -14 -000395 -TP — Will Groves, Community Development Suggested Actions: Open hearing; take testimony; leave hearing open or close hearing as appropriate. 6. A PUBLIC HEARING (continued from January 27) on Widgi Creek Development Application - Pool — File #247 -14 -000391 -TP — Will Groves, Community Development Suggested Actions: Open hearing; take testimony; leave hearing open or close hearing as appropriate. 7. 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. Executive sessions are closed to the public; however, with ICw exceptions and under specific guidelines, are open to the media. 8. ADJOURN Board of Commissioners' Business Meeting Agenda Monday, February 29, 2016 Page 2 of 6 To watch this meeting on line, go to: http://www.deschutes.orq/bcc/page/board-meeting-videos Please note that the video will not show up until recording begins. You can also view past meetings on video by selecting the date shown on the website calendar. 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 C11111 email ken.harms(c�deschutes.ora. FUTURE MEETINGS: (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. Ifyou have questions regarding a meeting, please call 388-6572.) Monday, February 29 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Wednesday, March 2 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Monday, March 7 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Wednesday, March 9 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Tuesday, March 15 10:00 a.m. 911 User Board Meeting, at 911 Board of Commissioners' Business Meeting Agenda Monday, February 29, 2016 Page 3 of 6 Monday, March 21 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Wednesday, March 23 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Monday, March 28 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Wednesday, March 30 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Monday, April 4 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Tuesday, April 5 3:30 p.m. Regular Meeting of Public Safety Coordinating Council Wednesday, April 6 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Thursday, April 7 8:00 a.m. Joint Meeting with the Sisters City Council, at Sisters City Hall Wednesday, April 13 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Board of Commissioners' Business Meeting Agenda Monday, February 29, 2016 Page 4 of 6 Monday, April 18 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Tuesday, April 19 10:00 a.m. 911 User Board Meeting, at 911 Monday, April 25 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Wednesday, April 27 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Monday, May 2 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Tuesday, May 3 3:30 p.m. Regular Meeting of Public Safety Coordinating Council Wednesday, May 4 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Tuesday, May 10 6:30 p.m. Joint Meeting with Redmond City Council, Redmond City Hall Wednesday, May 11 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Board of Commissioners' Business Meeting Agenda Monday, February 29, 2016 Page 5 of 6 Friday, May 13 7:30 p.m. Centennial Theatrical Production — Deschutes Historical Museum Monday, May 16 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Tuesday. May 17 10:00 a.m. 911 User Board Meeting, at 911 Monday, May 23 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Wednesday, May 25 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Monday, May 30 Most County offices will be closed to observe Memorial Day. Tuesday, May 31 — Friday, June 3 Budget Week Deschutes County encourages persons with disabilities to participate in all programs and MIactivities. To request this information in an alternate format please call (541) 617-4747, or email ken.harms@deschutes.org. Board of Commissioners' Business Meeting Agenda Monday, February 29, 2016 Page 6 of 6 1.2 REVIEWED LEGAL COUNSEL REVIEWED CODE REVIffTCOMMITTEE DESCHUTES COUNTY OFFICIAL RECORDS ' CJ 20 885 MARY SUE PENHOLLOW, COUNTY CLERK COMMISSIONERSJOURNAL 12113/2001 01:14:35 PM BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Title 23, Comprehensive Plan, of the Deschutes County Code, and Prescribing * An Effective Date of March 13, 2002. ORDINANCE NO. 2001-047 WHEREAS, The Board of County Commissioners has determined that to comply with Periodic Review and OAR 660-22, amendments to the Deschutes County Comprehensive Plan are required; and WHEREAS, after notice and hearing as required by law, the Board of County Commissioners has considered the recommendation of the Planning Commission, now therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. Section 23.12.010, Definitions, of the Deschutes County Code is amended to include the definitions described in Exhibit "A", attached hereto and by this reference incorporated herein. Section 2. AMENDMENT OF PLAN TEXT. Section 23.36.020, Unincorporated Communities, of the Deschutes County Code, is amended to include the designation of Black Butte Ranch and the Inn of the Seventh Mountain/Widgi Creek as Resort Communities, with new language underlined and deleted laguage in strikethrough. The Deschutes County Code is further amended by the addition of a new Section 23.36.022, Resort Community, in the Unincorporated Communities section of the Growth Management chapter, as described in Exhibit "B," attached hereto and by this reference incorporated herein. Section 3. AMENDMENT OF PLAN TEXT. Section 23.44.110, Goal Exception Statement, Resort Communities, is added to the Deschutes County Code, as described in Exhibit "C", attached hereto and by this reference incorporated herein. Section 4. AMENDMENT OF Goal 5 Mineral and Aggregate Sites Inventory, of the Deschutes County Code, as described in Exhibit "D", attached hereto and by this reference incorporated herein. Section 5. AMENDMENT OF ESEE Findings and Decision for Site No. 316, of the Deschutes County Code, as described in Exhibit "E", attached hereto and by this reference incorporated herein. Section 6. AMENDMENT. Map amendments to the Deschutes County Comprehensive PAGE 1 of 2 - ORDINANCE NO. 2001-0047 (11/28/2001) Plan for the Resort Communities of Black Butte Ranch and the Inn of the Seventh Mountain/Widgi Creek, as shown in Exhibits "F" and "G", attached hereto and by this reference incorporated herein. Section 7. FINDINGS. Findings to support this ordinance are set forth in the Staff Report —Black Buttc Ranch and Inn of the Seventh Mountain/Widgi Creek, File NO. PA -98-5, attached as Exhibit "H," and by this reference incorporated herein. Section 8. EFFECTIVE DATE. This Ordinance takes effect on March 13, 2002. DATED this re) -day of December, 2001. Recording Secretary BOARD OF COUNTY CO OF DESCHUTES COUN SSIONERS GON Tom De Lrehnis R. Luke, Commi toner ssioner PAGE 2 of 2 - ORDINANCE NO. 2001-0047 (11/28/2001) EXHIBIT "A" 23.12.010. Definitions. **** "Resort Community" means an unincorporated community that was established primarily for and continues to be used primarily for recreation and resort purposes. It includes residential and commercial uses and provides for both temporary and permanent residential occupancy, including overnight lodging and accommodations (Ord. 2001-047 §1, 2001) PAGE 1 of 1 — EXHIBIT "A" TO ORDINANCE NO. 2001-047 (11/28/01) EXHIBIT "B" 23.36.020. Unincorporated communities. The 1979 comprehensive plan designated the following rural service centers (RSC): Alfalfa, Brothers, Hampton, Milbean. La Pine, Whistle Stop, Wickiup Junction, Terrebonne, Wild Hunt and Tumalo. These areas were designated in that plan as exception areas from Goals 3 and 4. Zoning under the Comprehensive Plan allowed for a mix of residential uses and commercial uses to support nearby residential uses. The scope of those uses was never clearly defined but, until the early 1990's, was never much of an issue since there was little development pressure. In 1994, LCDC adopted a new administrative rule to clarify what cope -of uses could be allowed in "unincorporated communities," including rural service centers, without violating Statewide Planning Goals 11 and 14 relating to public facilities and urban uses. The purpose of the rule was to assist in the implementation of Statewide Planning Goals 11 and 14 by defining the upper limits of intensity of uses allowable unincorporated communities defined under the rule. The rule wee -is set forth in OAR 660 Division 22 and identifies 4 different kinds of rural comrnunities: Resort Community, Urban Unincorporated Community, Rural Community and Rural Service Center. The rule - - ." • " :;; " ;,; ••• IE • .: ; .; : ; "" : ' e *: • ; ; .; ; : • " : - - : • - ; z ;: • : : : • : -:;: • ralc. lad ; • :4".;.; ; ' • ; :ssi ; 9 ; sepviee COMMUNITY La Pine Wickiup Junction Terrebonne Tumalo Sun River La Pine — exnansion to include Wickiup c ion and BLM land Black Butte Ranch Inn of the 7th Mountain/ Widgi Creek ies are designated as PREVIOUS DESIGNATION Rural Service Center Rural Service Center Rural Service Center 1 Rural Service Center Planned Community • Rural Service Center Forest Rural Residential Forest ornorated communities under OAR 660-22: UNINCORPORATED COMMUNITY DESIGNATION UUC Rural Service Center Rural Community Rural Community Urban Unincorporated Community Urban Unincorporated Community Resort Corarnun_ Resort Community PAGE 1 of 7 — EXHIBIT "B" TO ORDINANCE NO. 2001-047 (11-28-01) APPROVAL DATE 1996 1996 1997 1997 1997 2000 2 200 EXHIBIT "B" In subsequent steps, the remaining rural service centers and other unincoroorated communities in Deschutes County will be reviewed and revised, if need be, under OAR 660 Division 22. (Ord. 2001-047 § 2, 2001; Ord. 2000-017 § 1, 2000; Ord. 96-002, 1996) 23.36.022 Resort Community. A Resort Community is characterized as an unincorporated community that was established primarily for, and continues to be used primarily for recreation and resort purposes (OAR 660- 022-0010)(6). It includes residential and commercial uses and provides for both temporary and permanent residential occupancy, including overnight lodging and accommodations. (Ord. 2001-047, § 2, 2001) Black Butte Ranch &Inn of the Seventh Mountain/Widgi Creek A. General Information 1. Historical Background Black Butte Ranch; Black Butte Ranch is located in the northwestern portion of Deschutes County, 8 miles west of the city limits of Sisters. Black Butte Ranch is in the Indian Ford Creek watershed, a tributary to Squaw Creek, itself a tributary to the Deschutes River, and is surrounded by lands within the Deschutes National Forest. Since the late 1800's Black Butte Ranch has been a cattle ranch. Cattle operations continue today. Black Butte Ranch includes 1,830 acres developed in the early 1970's as a planned residential development with both permanent and vacation homes on 1,252 lots and three separate condominium areas. Recreation amenities include two 18 -hole golf courses, four swimming pools, 23 tennis courts, horse stables, a sports field, basketball courts and trails for bicycling, jogging and cross country skiing. Conference rooms, a restaurant, lounge and property sales in the Main Lodge, a general store and pro shops at both golf courses provide additional amenities for residents, guests and visitors. • Black Butte Ranch allows public access to its restaurant, golf courses and horse stables, but is primarily oriented to its year-round residents and seasonal guests. Black Butte Ranch is considered by many people to be a "destination resort", however development at Black Butte Ranch precedes the adoption of statewide Goal 8 and the County's mapping of lands for the siting of destination resorts. Approximately 96 percent of the area within Black Butte Ranch community boundary has already been developed. Development of Black Butte Ranch began in 1970 and the first subdivision plat within Black Butte Ranch was filed in 1970. In 1972, when the County first adopted a zoning ordinance (PL -5) and comprehensive plan, the area identified as Black Butte Ranch, although smaller than today, was zoned "Planned Development" and designated as a "Destination Resort" on the comprehensive plan map. In 1979 the County adopted revised zoning and comprehensive plan maps. Black Butte Ranch, in its current configuration, was zoned Rural Residential, RR -10, and was designated "Destination Resort" on the comprehensive plan map. In 1992 Black Butte Ranch was designated as a rural residential exception area on the comprehensive plan map (Ord No. 92-061). PAGE 2 of 7- EXHIBIT "B" TO ORDINANCE NO. 2001-047 (11-28-01) EXHIBIT "B" Inn of the Seventh Mountain/Widgi Creek: The Inn of the Seventh Mountain and Widgi Creek Golf commnnity are located approximately five miles southwest of the Bend Urban Growth Boundary on Century Drive and bounded by the Deschutes River on the south. The site for Inn of the Seventh Mountain (Inn) has been developed since the late 1960s and has historically been considered to be a stand-alone resort community with overnight lodging and recreation facilities for tourists. It currently has 230 condominium units, spread among buildings. The initial boundary was established in 1972 and encompasses 22.65 acres. The Inn includes horse stables, tennis courts, golf course, skating rink, swimming pools and other recreation amenities, and a restaurant, meeting rooms and multi- story lodging units for resort guests. Many of the dwelling units at Inn are occupied seasonally but some residences are occupied year round. Commercial uses open to overnight guests and the public include the restaurant, skating rink and golf course, guided raft trips on the Deschutes River and a retail/rental sport shop. Widgi Creek was approved in 1983 as a 237 -acre expansion to the Inn including a golf course with surrounding residential lots consisting of 107 lots for single-family dwellings and 103 lots for condominium units. The use of the site as a destination resort was initiated previous to implementation of the statewide planning goals in Deschutes County. Upon 'implementation of the statewide planning goals, the property was designated as "forest" in compliance with Goal 4, and the use continued to be permitted as a "destination resort". However, in 1993 HB 3661 eliminated destination resorts as a use in the forest zone except as allowed under Goal 8. This property was not approved as a destination resort pursuant to Goal 8 until the year 2001 when a "built and committed" exception was taken for the entire Inn/Widgi community. 2. Population and Growth Black Butte Ranch: The population of Black Butte Ranch is difficult to ascertain due to the large number of vacation and second homes within the community that are occupied for only part of the year. In 2001, the Black Butte Ranch Association estimated the number of full time, year round residents at 337 persons. During the peak tourist season, the population, including guests who do- not own property but are renting residences within the community, is estimated to rise to 5,000 persons. Inn of the Seventh Mountain/Widgi Creek: Almost all of the residential use at the Inn of the Seventh Mountain is tourist accommodations. During the peak tourist season, the population, including guests who do not own property but are renting residences within the community is estimated to be approximately 500 people. In 2001, the number of fuli time and part time residents at Widgi Creek is approximately 120, consisting of 80 single-family residents and 39 condo residents. Since there are only 4 condo units available for rental, there is no si ificant increase in the population during the peak tourist season. As currently planned, when the development is fully built out, the population increase to a total of 200 full time and part time residents in 107 single family homes and 46 condominium units. PAGE 3 of 7 - EXHIBIT '13" TO ORDINANCE NO. 2001-047(11-28-01) EXHIBIT "B" 3. Periodic Review In the fall of 1994, the Oregon Land Conservation and Development Commission adopted a new administrative rule, OAR 660, Division 22, entitled Unincorporated Communities. The rule requires counties to update land use plans and regulations for such communities. Deschutes County has updated the Comprehensive Plan and implementing zoning regulations for Black Butte Ranch and the InniWidgi Creek to comply with the rule as part of periodic review. 4 "Resort Community" Defmed Black Butte Ranch and the Inn of the Seventh Mountain/Widgi Creek meet the definition of "resort community" because they have historically developed with a mixture of residential and recreation or resort amenities. Commercial -type uses also exist, such as the restaurant and stables. Other retail operations, such as the golf pro shops arid retail sales at the tennis shop are associated with specific recreation activities and are not designed as stand alone retail operations intended by themselves to attract the traveling public to Black Butte Ranch or the Inn/Widgi. Black Butte Rinch operates both a community sewer and water system that are in place and serve the existing development. Black Butte Ranch is served by its own fire and police departments. The Comprehensive Plan designates Black Butte Ranch as a Resort Community and provides for future growth and development accordingly. The Inn/Widgi sewer service (except approved on-site septic systems) and fire protection is provided for Inn/Widgi by the City of Bend. Water is provided by on-site wells, security service is provided by the Inn/Widgi Resort Community and the Deschutes County Sheriff provides police services. 5. Community Boundary Black Butte Ranch: The Black Butte Ranch community boundary includes a total of 1912 acres consisting of 1) 1830 acres including the main resort development, the resort's recreational amenities, and the residential areas, and 2) 82 acres located contiguous to the northwest corner of the other land within the resort community used for industrial uses in support of Ranch operations. The community boundary abuts Highway 20 on the northeast. National Forest Service lands and private landholders bound it on the south and west. Inn of the Seventh Mountain/Widgi Creek: The Inn of the Seventh Mountain/Widgi Creek community boundary includes 260 acres (23 for the Inn and 237 for Widgi Creek). The property is used for the resort's recreational amenities, rental and residential units. The western boundary is the Century Drive. The south boundary is generally the Deschutes River canyon. The entire resort community is bordered by the Deschutes national Forest. B. Land Use Planning . 1. Existing Land Uses Black Butte Ranch: The predominant land use in Black Butte Ranch is residential, the majority of which is single-family residential development. However, since Black Butte Ranch was originally developed as a planned community, a number of other uses exist PAGE 4 of 7— EXHIBIT "B'TO ORDINANCE NO. 2001-047 (11-28-01) EXHIBIT "B" which make Black Butte Ranch a community that is somewhat self-reliant. Uses that support the residential components include a commercial core, which contains a variety of retail businesses developed in a pedestrian mall setting, as well as a business park. A significant component of development in Black Butte Ranch includes recreation amenities such as golf courses, and resort facilities, such as a lodge, meeting facilities and a restaurant. A fire station and public works facilities for sewage treatment and water delivery have also been developed in support of all uses. The Black Butte Fire Department serves all areas within the boundary of Black Butte Ranch. Utility services will continue to be provided in the current manner. Inn of the Seventh Mountain/Widi Creek: The predominant land use at the Inn is resort uses with overnight lodging and recreation facilities for tourists, in addition to a restaurant, meeting rooms and a retail/rental sport shop. The predominant land use for Widgi Creek is residential, with single-family residential development and condominium units, in addition to a golf course. Fire and sewer services are currently provided by the City of Bend, with water service provided by on-site well. Utility services will continue to be provided in the currentmanner. 2. Comprehensive Plan Designations The 2001 Deschutes County Comprehensive Plan designates Black Butte Ranch and the Inn of the Seventh Mountain/Widgi Creek as a Resort Communities. C. Policies 1. Land Use Policies A. General resort Community Policies 1. Land use regulations shall conform to the requirements of OAR 660 Division 22 or any successor. 2. County comprehensive plan policies and land use regulations shall ensure that new uses authorized within the Black Butte Ranch Resort Community and the Inn of the Seventh Mountain/Widgi Creek Resort Community do not adversely affect forest uses in the surrounding Forest Use Zones. 3. Designated open space and common area shall remain undeveloped except for community recreation uses. Areas developed as golf courses shall remain available for that purpose or for open space/recreation uses. 4. The provisions of the Landscape Management Overlay Zone shall apply in Resort Communities where the zone exists along Century Drive, Highway 26 and the Deschutes River. 5. Residential minimum lot sizes and densities shall be determined by the capacity of the water and sewer facilities to accommodate existing and future development and growth: 6. The resort facility and resort recreation uses permitted in the zoning for Black Butte Ranch and the Inn of the Seventh Mountain/Widgi Creek shall serve the resort conununity B. Black Butte Ranch Policies: 1. The County supports the design review standards administered by the Architectural Review Committee. 2. Residential, resort and utility uses shall continue to be developed in accordance with the Master Design for Black Butte Ranch and the respective Section Declarations. PAGE 5 of 7 - EXHIBIT "B" TO ORDINANCE NO. 2001-047(11-28-01) EXHIBIT "B" 3. Industrial activities, including surface mining, shall only occur in the area zoned Black Butte Ranch Surface Mining, Limited Use Combining District (Black Butte Ranch SM/LU) located in the northwest corner of Black Butte Ranch. 4. Employee housing shall be located in the area zoned Black Butte Ranch- Utility/Limited Use Combining District (Black Butte Ranch-U/LU). 5. Any amendment to the allowable use(s) in either the Resort Community District or the Limited Use Combining District shall require an exception in accordance with applicable statewide planning goal(s), OAR 660-04-018/022 and DCC 18.112 or any successor. 6. The westerly 38 -acres zoned Black Butte Ranch Surface Mining, Limited Use Combining District (Black Butte Ranch SM/LU) shall be used for the raining and storage of aggregate resources. Uses that do not prevent the future mining of these resources, such as disposal of reclaimed effluent and woody debris disposal from thinning and other forest practices may be allowed concurrently. Other resort maintenance, operational and utility uses, such as a solid waste transfer station, maintenance facility or equipment storage may be allowed only after mining and reclamation have occuffed. 7. The 18.5 acres zoned Black Butte Ranch-Utility/Limited Use Combining District (Black Butte Ranch-U/LU may be used for the disposal of reclaimed sludge. 8. The area west of McCallister Road and east of the area zoned Black Butte Ranch Surface Mining, Limited Use Combining District (Black Butte Ranch SM/LU) may be used for large equipment storage, general storage, maintenance uses, RV storage, telephone communications, administration offices, housekeeping facilities and employee housing. 9. Employee housing shall be set back at least 250 feet from the eastern boundary of the area zoned Black Butte Ranch Surface Mining, Limited Use Combining District (Black Butte Ranch SM/LU) Surface mining within the Black Butte Ranch community boundary shall adhere to the following Goal 5 ESEE "Program to Meet Goal" requirements: 10. Only the western most 38 acres of the site shall continue to be mined. 11. Setbacks shall be required for potential conflicting residential and other development. A minimum 50 -foot setback shall be maintained from the perimeter of tax lot 202 for all surface mining activity. 12. Noise impacts shall be mitigated by buffering and screening. 13. Hours of operation shall be limited to between 7:00 a.m. and 6:00 p.m. weekdays. No operations shall be allowed on weekends and holidays. 14. Processing shall be limited to 45 days in any one year, to be negotiated with Deschutes County in the site plan process in consultation with the Oregon Department of Fish and Wildlife (ODFW). 15. The conditions set forth in the August 10, 1989, letter of ODFW shall be adhered to. 16. Extraction at the site shall be limited to five acres at a time with on-going incremental reclamation (subject to DOGAMI review and approval). 17. Mining operations, siting of equipment, and trucking of product shall be conducted in such a manner that applicable DEQ standards are met and minimizes noise and dust. 18. DOGAMI requirements for a permit once mining affects more than 5 acres outside the 8.6 -acre exempt area shall be met. PAGE 6 of 7 — EXHIBIT "B" TO ORDINANCE NO. 2001-047 (11-28-01) EXHIBIT "13" 19. A conditional use permit shall be obtained from Deschutes County, under the provisions of section 18.128.280, Surface mining of resources exclusively for on- site personal, farm or forest use or maintenance of irrigation canals, before mining activity affects more than five acres outside the 8.6 -acre exempt area. C. Inn of the Seventh Mountain/Widgi Creek Policies: 1. Any amendment to the allowable uses(s) in either the Resort Community District or the Widgi Creek Residential District shall require an exception in accordance with applicable statewide planning goal(s), OAR 660-04-018/ 022 or any successor, and DCC 18.112 or any successor. 2. Public Facility Policies A. General Public Facility Planning Policies 1. Police protection services for both communities shall be provided under contract with the Deschutes County Sheriff 13. Black Butte Ranch: 1. The Black Butte Ranch Water Distribution Company and the Black Butte Ranch Corporation shall confirm that water and sewer service, respectively, can be provided for new uses or expansion of existing uses that require land use approval. 2. The Black Butte Ranch Water Distribution Company shall provide water service for the Black Butte Ranch Resort Community. 3. The Black Butte Ranch Corporation shall provide sewer service for Black Butte Ranch. 4. The Black Butte Ranch Rural Fire Protection District shall provide fire protection services for Black Butte Ranch. 5. The roads and the bicycle/pedestrian path system within the Black Butte Ranch Resort Community boundary shall be maintained by the Black Butte Ranch Owners Association. C. Inn of the 7th Mountain/Widgi Creek 1. Water service shall be supplied by on-site wells for the Inn/Widgi Resort Community. 2. New uses or expansion of existing uses that require land use approval shall be approved only upon confirmation from the City of Bend that sewer service can be provided. 3. Fire protection services for the Inn/Widgi shall be provided through a contract with the City of Bend until such time as Inn/Widgi develops another plan to provide adequate fire protection. 4. The resort community, not Deschutes County, shall maintain roads in the community. 5. The bicycle/pedestrian path system shall be maintained by Inn/Widgi Owners Associations. 10. Emergency access between Widgi Creek and the inn of the 7th Mountain shall be provided in accordance with the approved development plan for the Elkai Woods town homes. The respective resort property owners shall maintain emergency access between the Inn of the 7th Mountain and Widgi Creek. (Ord. 2001-047 § 2, 2001) PAGE 7 of 7 — EXHIBIT "B" TO ORDINANCE NO. 2001-047(11-28-01) EXHIBIT "C" Chapter 23.44. GOAL EXCEPTION STA 1EMENT **** 23.44.110. Resort Communities. In conjunction with approval of PA -98-5 and TA -98-9, an exception to Statewide Planning Goal 4, Forest Lands, was taken for the Black Butte Ranch and The Inn of the Seventh Mountain / Widgi Creek resort communities. These exceptions were taken at the same time that both resorts were designated "Resort Communities" under the State rules for unincorporated communities, OAR 660-022. A "reasons" exception was taken for Black Butte Ranch (the Ranch) to justify the addition of 80 acres of land to the resort community boundary A "physically developed" exception was taken for The Inn of the Seventh Mountain/Widgi Creek (the Inn/Widgi) in recognition that this resort is for all practical purposes fully developed. The 80 -acre addition to the Ranch is zoned as a Surface Mining /Limited Use Combining District (38 acres) and a Utility /Limited Use Combining District (44 acres). The uses allowed are limited to those indicated in the County Zoning Ordinance (Title 18). Any additional uses will only be allowed if an additional plan amendment (including exceptions findings) and text amendment are approved that justify such uses. The findings to support these exceptions are set forth in Exhibit "H" to Ordinance 2001- 047. These findings are incorporated herein by reference. The uses allowed in these communities are set forth in Exhibit "B" to Ordinance 2001-048. (Ord. 2001-047 § 3, 2001) PAGE 1 of 1 — EXHIBIT "C" TO ORDINANCE NO. 2001-047 (11/28/01) SITE NO. 246 248 249 251 252 271 273 274 275 277 278 282 283 288 292 293 294 296 297 303 303 305 306 313 313 314 315 316 EXHIBIT "D" Goal 5 Inventory -Mineral and Aggregate Sites LEGAL DESCRIPTION 151010-00-00205, 207, 300, 302,303 - 151012.00-00100 151025-00-02502, 2505 151211-D0-01400, 151214- A0-00800 151200-00-04700, 04701 151036-00-00800 151117.00-00100 151117-00-00700 151100-00-02400 151011-00-01100 151140 -A0.00901,151211 - D0 -01200 171000-00-00100 171000-00-00100 171111-00-00700 171112-00-00900 17112-00-00500, 600, 700, 800 171113-00-00817 171100-00-02702 171123-00-00100 171207-00-00300 171207-00-00300 171206-C0-00100 171206-B0-00700 171433-00-00600 171433-00-00600, 120 171332-00-01100 140900-00-02100 140900-00-002002 317 140900-00-01300 322 141200-00-01801 322 324 141200-00-01801 141200-00-00702 326 1 141236-00-00300,301 330 1 141328-00-00702, 703 331 1 141329-00-00100,103 332 1 141329-00-00102 333 335 336 339 341 342 345 346 347 351 355 141329-00-00104 141333-00-00890 141333-00-00400, 500 141132-00-01500 161000-00-00106 220900-00-00203 161000-00-01000 161000-00-01000 161101-00-00300 161112.00-01401, 1700, 2000 161135-00-02100 NAME Tewalt Cyrus RL Coats Cherry Thomburgjr Deschutes County Deschutes County Deschutes County Deschutes County Oregon State Hwy State of Oregon Crown Pacific Crown Pacific Tumalo Irrigation RL Coats RL Coals Bend Aggregate Crown Pacific Crown Pacific Cascade Pumice Cascade Pumice RL Coats RL Coats Deschutes County Deschutes County Deschutes County Stott �V�FIa>ttette-!nd Black Bone Ranch Willamette Ind Fred Gunzner Gunzner ODVA US Bank Trust LarryDavis EA Moore RL Coats Robinson Erwin US Bank Trust Deschutes County Young & Morgan Crown Pacific Crown Pacific Crown Pacific Deschutes County Gisler/Russell Cascade Pumice TYPE S&G Cinders Rock S&G Rock S & G S&G S&G S & G S&G S&G Cinders Cinders S&G S & G S&G S&G Cinders Cinders Pumice S & G S & G S&G S & G Storage Dirt Rock S & G Cinders S&G Diatomite S & G S&G Cinders Cinders Cinders Cinders Cinders Cinders Dirt S & G Cinders Cinders Cinders Dirt Cinders Pumice QUANTITY* QUALITY 10,000 Good 30.2 M Excellent 250,000 ODOT Specs 125,000 Good 2.5 M Good 2 M Mixed 75,000 Excellent Excellent 175,000 Good 100,000 ODOT Specs 18,000 ODOT Specs 100,000 1 Fair 50,000 1 Fair 250,000 1 Good 326,000 I ODOT Specs 3 M lj ODOT Specs 777,000 Excellent 100,000 Excellent 60,000 750,000 Good 10,000 Good 150,000 ODOT Specs 1 100,000 Good 1 ACCESS/LOCATION Hwy 20 Cloverdale Road Harrington Loop Road Fryrear Rd/Redmond- Sisters Fryrear Road Fryrear Landfill Klippel Acres/Bend Shcvlin Park/Johnson Rd Johnson Rd/Tumalo Dodds Road/Alfalfa 150,000 Good 93,454 tons ODOT Specs Highway 20 7 M 1 Good 11 M 1 Good 1.5 M Mixed 500,000 Good 490,000 Good 1.5 M Good 50,000 Good 100.000 Good 2 M Good 2.7 M 100,000 4.5 M 200,000 IM 200,000 50,000 50,000 10,000 1 150,000 1 750,000 PAGE 1 of 3 - EXHIBIT "D" TO ORDINANCE NO. 2001-047 (1 lt28/01) Good Excellent Good Fill Good Good Good Good Good Good Good Lower Bridge/Terrebonne Lower BridgelTerrebonne Lower Bridge/Ten-ebonne Northwest Way/Terrebonne Pershall Way/Redmond Cinder Butte/Redmond Goodard Loop/Bend Innes Mkt/Innes Butte SITE NO. 356 357 357 357 358 361 366 368 370 379 381 390 391 392 392 393 394 395 400 404 404 405 408 413 414 415 416 417 418 419 421 423 426 427 431 EXHIBIT "D" Goal 5 Inventory - Mineral and Aggregate Sites LEGAL DESCRIPTION 161135-00-02000 161136-1)0-00100, 161100-00- 10400,10300 161136-D0-00100, 161100-00- 10400,10300 161136-D0-00100, 161100-00- 10400, 10300 61100-00- 10400,10300 161231-D0-01100 161222-00-02800 161230-00-00000 161220-00-00200 161231-D0-00400 181100-00-01600 181125.00-12600,181126- 01600 181214-00-00500,100 - 181221-00-00200 181223-00-00300 181223-00-00300 181225-00-01400 181200-00-04400, 04411 181200-00-04300 181300-00-04501,04502 191400-00-00200 191400-00-00200 191400-00-00600 191600-00-01500 201500-00-01400 201500-00-01500 201716-00-00700 201716-00-00200 201716-00-00900 201716-00-01000 201716-00-01300 212000-00-00900 211106-00-00700 211100-00-00702 211100-00-00701 221100-00-00600 432 221100-00-00500 433 211300-00-00101 441 442 443 453 459 461 461 1465 466 467 469 475 482 488 150903-00-00300 150909-00-00400 150917-00-00600 161209, 10-00-00600, 301 141131-00-05200 141300-00-01500,1501,1502, 1503, 1505 141200-00-01501, 1502, 1503, 1505,1600 141333-00-00900 14I333-00-00600 141333-00-00601 141131-00-00100 151012-00-00600 151300-00-00103 161230-00-00100, 600, 2000, 2100 NAME Tumalo Irrigation Tumalo Irrigation TYPE Pumice Cinders Tumalo Irrigation S & G Tumalo Irrigation Gisler Oregon State Hwy Oregon State Hwy Bend Aggregate Bend Aggregate Plant She Oregon State Hwy Pieratt Bros Deschutes Coun Central OR Pumice Rose Rose LT Contractors Windlinx Oregon State Hwy Eric Coats Moon Moon Rock Oregon State Hwy Aggregate RL Coats S & G Deschutes County S & 0 Deschutes County S & G Deschutes County ( S & G Deschutes County S & G Deschutes County S & G Deschutes County S & G Deschutes County S & G RL Coats S & G Ray Rothbard S & G La Pinc Redi-Mix S & G Bill Bagley E S & G Russell Cinders/ Rock State of Oregon I Cinders La Pine Pumice Lump Pumice Willamette Ind S & G Willamette Ind S & G Willamette Ind Rock Roben Fullhart 1 S & G Deschutes County Cinders Nolan 1 5 & G QUANTITY* 2M IM 500,000 Pumice 500,000 1 S & G 1 Cinders S&G S&G Storage QUALITY Good Good Good ACCESS/LOCATION Johnson Road/Tumalo 100,000 1 ODOT Specs Hwy 20/Tumalo 700,000 1 Good 40,000 ODOT Specs 570,000 Excellent Twin Bridges/Tumalo S & G 500,000 ODOT Specs Cinders 50,000 Good Dirt 2 M Cinders 500,000 Rock 10 M Est Mixed Dirt 7.5 M Good Cinders 1 12.5 M Good Cinders 1 270,000 Coarse Cinders 1 100,000 S & G 1 2.5 M ODOT Specs S & 1 13M Good 800,000 - 2 M Good 50,000 ODOT Specs 3 M Good 30,000 1 Good/Excellent 30,000 1 Good/Excellent 30,000 1 Good/Excellent 30,000 1 Good/Excellent 30,000 1 Good/Excellent 30,000 1 Good/Excellent 30,000 1 Good/Excellent 500,000 Excellent 100,000 Good 1 M Good 40,000 Good 12 M/1.2 M Good 160,000 Good 10 M Excellent 11 M Good 6 M Good 150,000 Fair 704,000 1 ODOT Specs 1 50,000 Good 350,000 Good Franklin Nolan 1 Diatomite 2 M Good Oregon State Hwy 1 Cinders Fred Elliott 1 Cinders Knorr Rock Co 1 Cinders Deschutes County Cinders Deschutes County Cinders Deschutes County 1 Dirt Bend Aggregate S & G 100,000 Good 5.5 M Good 5 M Good 2 M Fair 200,000 Good 2 M Good 400,000 ODOT Specs PAGE 2 of 3 - EXHIBIT "D" TO ORDINANCE /40. 2001-047 (11128/01) d Arnold Mkt Rd/SE of Bend Hwy 97/South of Bend Good Hwy 20/East of Bend Hwy 20/East of Bend Hwy 20/East of Bend Hwy 20/East of Bend H H 20/East of Bend 20/East of Bend 1 Hwy 20/East of Bend 1 Hwy 20/East of Bend 1 Hwy 20/Tumalo Finley Butte 1 Cloverdale Road 1 Negus Landfill SITE NO. 496 191400-00-00500 498 191400-00-02200 499 191533-00-00200 500 191500-00-00099 501 191500-00-01600 503 191600-00-01300 505 201600-00-00400 " 506 1 201600-00-00600, 700, 800 508 201700-00-01000 515 201801-00-00100 522 1 211900-00-01000 524 1 212000-00-01900 528 1 222110-00-00600 529 221100-00-00300 533 222100-00-00800 541 141035-00-02000,2100, 2200, 2300, 2400, 2500, 2600 542 151001-00-02700 543 151013-00-00100 ' 600 191400-00-00700 601 1 211100-004)700 EXHIBIT "D" Goal 5 Inventory — Mineral and Aggregate Sites LEGAL DESCRIPTION NAME Taylor Oregon State Hwy Oregon State Hwy Oregon State Hwy Oregon State Hwy Oregon State Hwy Oregon State Hwy Oregon State Hwy State of Oregon Oregon State Hwy 1 Oregon State Hwy 1 Orcgon State Hwy Orcgon State Hwy 1 Oregon State Hwy Oregon State Hwy Cyrus Swarens Cyrus Robinson La Pine Redi Mix TYPE S &c S & G S & G & G S & G S & G S & G S & G S & G S & G S & G S & G S & G S & G S & G Aggregate 1 Aggregate 1 Aggregate S & G 1 S & G QIJANT1TY* QUALITY 1.8 M Mixed 200.000 ODOT Specs 50,000 ODOT Specs 130,000 ODOT Specs 50,000 ODOT Specs 200,000 ODOT Specs 275000 ODOT Specs 36,000 ODOT Specs 100,000 ODOT Specs 100,000 ODOT Specs 300,000 1 ODOT Specs 300,000 1 ODOT Specs 45,000 1 ODOTSpec 31,000 1 ODOT Specs IM ODOT Specs 528,000 Good 80,000 1.1 M 3.8 M 479,000 ACCESS/LOCATION Hwy 20 Inc Portions of TL 1800/1900 Good Good Good Hwy20tEastofBcnd 1 DEQ Specs Paulina Lake Road • quantity in cubic yards unless noted (Ord. 2001-047 § 4, 2001;Ord. 2001-027 § 1, 2001; Ord. 2000-017 § 1, 2000; Ord.99-028, 1999; Ord. 99-019, 1999; Ord. 96-076, 1996; Ord. 95-041, 1995; Ord. 94-050, 1994; Ord. 90-025, 1990) PAGE 3 of 3 — EXHIBIT "D" TO ORDINANCE NO. 2001-047 (11/28/01) ESEE Findings and Decision Site No. 316 Site Number 316, occupying tax lot 2020, in Township 14 South, Range 9 E.W.M., Section 5, came before the Board of Commissioners (Board) for hearing on August 10, 1989. On October 10, 1989, the Board made a preliminary decision . to place Site No. 316 on the County's Goal 5 inventory. The pre iminary decision; was later ratified by the Board senfirre, - - • iminery desisieft: and Site No. 316 was formally placed on the Goal 5 inventory. On November 28,2001. the Board WaS conducted p sub.eauent hearing to determine whether the subject site, listed on the County's ouptv's inventory of aggregate sites, should be " rr Eurfaee Mining made a part of the boundaries of the unincorporated community of Black Butte Ranch and, if so, should be reclassified to reflect the zoning designations applicable to properties within the Black Butte Ranch Resort Community. , oncurrent with the ESEE revision to this site in 2001, the Board determines -determined that this site should be se 4(15ifled:part of the Black Butte Ranch Resort Community (File No. PA -98-5 & TA -98-9), Site No. 316 shall remain on the county's inventory of aggyegate resources. The western most 38 acres of the site shall have a zoning designation of Black Butte Ranch — Surface Mining / Limited Use Combining District (BBR-SM/LU). The remaining eastern portion of Site No. 316 (44 acres) that is adjacent to the residential uses of Black Butte Ranch shall have a zoning designation of Black Butte Ranch -Utility/ Limited Use Combining District (BBR-U/LU). PRELIMINARY FINDINGS Site number 316 comprises approximately 80-82 acres and is located about one mile off Highway 20 northwest of Black Butte Ranch. The site is owned by Black Butte Homeowners Association and is zoned SM. Adjacent land is zoned F-2, Black Butte Ranch-Utility/Limited Use Combining District and 1111-1-9Resort District. This site was identified as containing aggregate resources in the Deschutes County Goal 5 Aggregate inventory adopted by the Board on December 6, 1988. Based upon the site's inclusion on that inventory, the site was zoned SM or surface mining under statewide planning goal 5 to protect the aggregate resource. The original ESEE decision adopting the SM zone specifically limited processing to 45 days per year and limited operations to weekdays only. Since the initial inclusion of the site on the Goal 5 inventory, significant changes have occurred. It was purchased in 1993 bY the Black Butte Homeowners Association and is now used exclusively by Black Butte Ranch for all its aggregate resource requirements. Second, concurrent with the November 2001 revision to the ESEE Findings and Decision, the site has been made a part of the unincorported corrununitv boundary of Black Butte Ranch so that the site will be operated consistent with the zoning designations of the Black Butte Ranch Resort Site # 316 — Revised ESEE 1 File No. PA -98-5 & TA -98-9 EXHIBIT "E" TO ORDINANCE NO. 2001-047 (11/28/01) Community. APPLICABLE CRITERIA Criteria applicable to this decision are Statewide Planning Goal 5, its implementing rule, OAR 660-16-000, and the Deschutes County Year 2000 Comprehensive Plan, as amended, regarding surface mining goals and policies. HEARING AND EXHIBITS Prior to the heating hearings in 1989 and_2001 on this site, a staff fepeft-was reports were prepared setting forth the site's aggregate resources and conflicting resource and use values. The report, which was entered into the record at -the beefing hearings before the Board, identified conflicting resources and uses and their impacts and evaluated the economic, social, energy, and environmental consequences of protecting the mineral resource or in the alternative, protecting the conflicting values or uses. In addition, the report of an appraiser hired by the County describing the site and its surroundings was entered into the record for the 1989 hearing. In 1989, testimony at Testimony was also received from a representative of the Black Butte Ranch Homeowner's Association and four neighboring property owners in the Black Butte Ranch Development. A list of the contents of the record is appended hereto as Exhibit A. ESEE FINDINGS AND CONCLUSIONS 1. Inventorv. The County's Goal 5 mineral and aggregate inventory establishes that the entire site has 7 million cubic yards of sand and gravel meeting ODOT specifications. Information in the file at the time of the November 2001 hearing estimates the following Quantities of material in the westem 38 acres of tax lot 202: Estimate of Available Materials Amount (cubic yards) Overburden 100,000 Crushable to ODOT Specifications 220,000 Commercial Grade 3/4" -minus 110.000 Crusher Reject 210,000 Trench Backfill 660.000 Total 1.300.000 2. Site Characteristics. Site 316 is an existing gravel mine located roughly one mile south of Highway 20 just northwest of Black Butte Ranch. The site is natural forest -land Site N 316 — Revised ESEE 2 File No. PA -98-5 & TA -98-9 EXHIBIT "E" TO ORDINANCE NO. 2001-047 (11/28/01) forestland, except where there has been excavation. The forest in the area is predominately ponderosa pine forest. The site is located within adjacent to the Deschutes National Forest and that has a number of existing gravel pits and in an active logging area. Directly to the east and south of the site is Deschutes National Forest Land. To the west of the site is privately held forest lend forestland. . . The northwest corner of the Black Butte Ranch resort development is coincident with the southeast corner of the mining site. Zoning maps show that numerous homesites in the Black Butte development fall within the enehalf one half mile impact area. This The aggregate site has been neighbori-nz 1 * ** • . appraxim with -a -highway used continuously since the original development ofBlack Butte Ranch seleYfor Ranch Durposes. The developer of Black Butte Ranch used the aggregate for the eluting -that -time of the resort and associated highway access points. It has also been used intermilttenly for disposal of ranch debris and effluent sludge disposal from Black Butte Ranch's sewer treatment plant. The record in the file also indicates that resource material from the site has historically been used for road construction on adjacent forest service lands and for emergency road repair work on Highway 20. However, it is not a commercial operation and lacks the necessary land use approvals to operate commercially. There has been There -was testimony that .. - - ----- - an jot invelving-the-sitei the noise, dust and traffic resulting from activities e site adversely affected the quality of life fef of the residents in the ar-ea northwest corner of Black Butte Ranch. Residents have testified that noise from previous operations were disruptive from a distance of at least 1500 feet. There was no testimony about whether or not complaints had been made to DEQ to abate possible noise violations. The Forest Service pit to the south is limited to extraction of 10,000 cubic yards per year, unless an environmental assessment is performed. The ewiser--Forest Service ef-this-site anticipates that it -this site would be used only occasionally due to its location, but expects that any contractor doing a job in the area would be interested in the site. 3. Conflicts analysis. a. Goal 5 Conflicts Resources Site # 316 — Revised ESEE File No. PA -98-5 & TA -98-9 3 EXHIBIT "E" TO ORDINANCE NO. 2001-047 (11/28/01) Wildlife habitat. The Department of Fish and Wildlife has determined that this site lies within a deer use range with a high frequency of use. This resulted in a winter closure requirement in the 1990 ESEE for this site between December 1 and April 30. In 1992, the County made a finding that ODFW had determined that this site is not in a deer winter ranee. (See p.42, Ord. No. 92-044.1 Accordingly, although the County reaffirmed its zoning of the site for surface mining at that time, the requirement for winter closure was specifically deleted from the Program to Meet the Goal. 2. Scenic. . • - : - ; ; - ; • : • - The site has scenic value for high visual quality standards by the U.S. Forest Service. However. the site is not adjacent to the Highway 20 corridor LM zoning, the LM zoning along Highway 20 specifically leaves this property out. 3 Historical. Although the staff report for the 1989 hearing mentions that the old Santiam Road runs close by this site, this appears to have been in error. Conflicts Based upon the staff analysis of surface mining impacts on Goal 5 resources, the Board finds the conflicts and impacts of surface mining at this site to be as follows: Impacts on deer would include destruction of cover and food sources by excavation, surface disturbance, adverse impacts on forage from dust, interference with migration routes by surface disturbance and construction of structures and access roads, and an increased risk of being hit by trucks and other vehicles serving the mining site. The effect would generally be to displace deer from such areas or to curtail their use of the area. Due to intermittent use of this site, such impacts would not be severe. b. Land Use Conflicts. Land Uses Land uses on the zoning at and surrounding the site are set forth in Appendix--24-te-the staff-r-epeon the Deschutes County Zoning Map. In summary, the site is contiguous to the northwest corner of Black Butte Ranch. which is zoned Resort District, and is adiacent to the proposed Black Butte Ranch —Utility/ Limited Use Combining District.: The site is otherwise surrounded by U.S. Forest Service lands and private timber company holdings. Conflicts The Board finds that conflicts with the uses at the site and in the surrounding zones would include: Site # 316 Revised ESEE 4 File No. PA -98-5 & TA -98-9 EXHLBIT "E" TO ORDINANCE NO. 2001-047 (11/28/01) At the site There would be no conflicts at the site given that the site is zoned for surface mining. Surrounding zones (RR l0Resort District, Black Butte Ranch Utility/ Limited Use Combining District, F-2) (1) The impacts of noise (including heavy equipment, truck traffic, blasting, processing, and drilling) on persons dwelling in or patronizing noise -sensitive uses in the surrounding zoning. All uses in the surrounding zones would be conflicting, except utility uses, other mining uses, forest product processing uses, landfills, personal use landing strips and race tracks. Existing residential development to the southeast in the Black Butte development eel:Ad Ranch will likely be adversely affected by noise. Area residents testified in 1989 that the noise from previous operations at the site were disruptive, to even as far away as 1500 feet. (2) The impacts of dust on dust -sensitive uses. The Board finds that all commercial, residential, park or community -type uses are dust -sensitive uses due to the potential health impacts of dust on occupants and patrons and the general nuisance associated with dust. The levels of conflict in this regard would be similar to that set forth under noise impacts above. Ding the -hearing -en -this -site In the adoption of the original ESEE, neighbors testified that current operations create bothersome dust conditions. Similar conditions would be expected if mining were to occur within 1500 feet of the residents in the northwest corner of the Black Butte Ranch. or employees residing in employee housing. (3) The impact of truck traffic on roads and on public safety, particularly as truck traffic affects the safety of residential neighborhoods and community centers. Access to this site is off Highway 20 and not through the Black Butte development. There was no specific testimony that traffic adversely impacted the residents of the development. (4) The impact to aesthetic values, due to dust, physical scarring of the landscape and the introduction of an industrial -type use into a rural setting. This would affect primarily residential uses and park -type uses. that - : Those residences in the northwest comer of Black Butte Ranch would be aesthetically impacted bY any mining activity on the eastern half of the site. Site # 316 — Revised ESEE File No. PA -98-5 & TA -98-9 5 EXHIBIT "E" TO ORDINANCE NO. 2001-047 (11/28/01) The Board finds that the uses identified above, as conflicting uses are conflicting in that full protection of those uses would preclude zoning for surface mining or place limitations on such mining. 4. Current Mining Use of Site. The Board finds that surface mining is a current or previous use at on a portion of the site and could possibly continue within any valid existing DOGAMI or County permit area regardless of whether or not this the entire site is zoned in the Goal 5 process. - - - - • - . • • ,ing to proceed on 31-bly ba 6:115Wed-te-Oeelff - SRC woWd ba-neeessari Therefore, the relevance of the ESEE discussion below is primarily ion site -and whether the site is important enough that limitations should be placed on existing and potential land use conflicts. As stated above. DOGAMI concluded in 1999 that the exempt area covers approximately 8.6 acres and a Permit from DOGAMI is necessary once the mining area has expanded by five acres outside this area. In addition, site plan approval will need to be obtained from Deschutes County for mining that exceeds the exempt area by five arces. The owner will need to submit a site plan application and meet the applicable provisions in the County's zoning ordinance to fulfill this requirement. Resource Conflicts Protection of Aggregate Resource 5. Economic Conseauences. Economic consepuences could lie significant if they result in a redugtiqn - : ; : -•: : - - • fn -ie aonequenc ef protec.' who might be dissuaded • ah cir om coming to the area etion iz tourists our.t.f. This could be an important consequence, given the site's proximity to the Black Butte fesert Ranch, which is a major resort area in the County. that Any mining on the eastern most portion of the site ean-he-seeft-frem-the would like v have an aesthetic impact on Black Butte residents and visitors. 6. Social Consequences. The Board finds that the social consequences of protecting the mineral resource over the other natural resources would be negative. Surface mining would have negative impacts on the wildlife attributes of the area. The Board finds, however, that the impact of the surface mine would be reduced by the fact that the site has already been partially mined and, that mining activity at the site is not continuous and that mining activities can be limited to a portion of the site that is at least 1400 feet from the nearest residence, except for employee housing that may be located in the future in site # 316 — Revised ESEE 6 File No. PA -98-5 & TA -98-9 EXHIBIT "E" TO ORDINANCE NO. 2001-047(11/28/01) the adjacent Utility/Limited Use Combining District. Mining activity will be mitigated through site plan review for this use. and411444-Inir.ing 7. Environmental Consequences. The Board finds that allowing surface mining activities would have adverse environmental consequences on wildlife habitat. Surface mining activities would reduce the available cover and forage at the site, which would cause increased competition among deer for the remaining forage and cover. Some wildlife would be forced to leave the area to find other food sources and cover, thus adding more competition in other areas for these resources. Increased truck traffic associated with mining activities could increase the mortality rate for the ar-eals go, wildlife. geenie r • by-pes3ibk. ir.ereoed-Ele:ftrzetioz In some cases over the long term surface mining can be beneficial to environmental values in that it gives an opportunity for a site already desecrated by the actions of man or otherwise lacking in natural values to be improved as part of the reclamation process. There is no evidence to suggest that this is one of theselifistanees those instanc. The area is natural in appearance, except for the excavated area and is vegetated with ponderosa pine and bitterbrush. 8. Energv Consequences. The Board finds that the energy consequences of protecting the mineral resource over the other natural resources would be to increase the energy consumption at the site due to fuel expenditures needed to run the heavy equipment and processing equipment as well as the fuel expended in transportation of the product to its end use. gueh While such energy use would be bound to occur in any event, the fact that the aggregate is now being mined solely for Black Butte Ranch use. transportation impacts are minimal. Adequate on site space for equipment storage will further mitigate energy consumption. Aggregate is a resource that is needed in the County and failure to protect the mineral resource at this site would only mean that such energy use would occur elsewhere. proyda- traetiaE j3b9 The Board finds generally that preservation of this site would ha overall energy consumption 4e -be -hauled t3 highway-jebs. Id likely only e t ofreducing Protection of Goal 5 Resources 9. Economic Conseauences. Protection of the wildlife, scenic, and recreational resources would preclude or limit mining at the site. The Board finds that, as reflected in the goals and policies statement of the County comprehensive plan, the County consumes 2 million cubic yards of aggregate materials Site # 316 — Revised ESEE 7 File No. PA -98-5 & TA -98-9 EXHIBIT "E" TO ORDINANCE NO. 2001-047(11/28/01) each year. Under the laws of supply and demand, failure to protect sufficient amounts of aggregate for the 20 -year planning cycle will result in an increased cost in aggregate resources. Increases in aggregate costs would in turn result in increased construction costs. To the extent that aggregate would need to be hauled in from outside the area, the cost of aggregate would be increased by haulage costs, which the Board finds to be at a rate of .22 per ton mile. The Board finds there to be a total of 73,538,000 cubic yards of sand, gravel and rock in the County, accounting for the inventoried amount of sand, gravel and rock and the amount of those materials located at sites within the urban growth boundary. The Board finds that virtually all sites have either resource or land use conflicts with surface mining. Consequently, if more than 46% of the aggregate sites were to be eliminated due to resource or other conflicts, the County would not have preserved sufficient aggregate to meet its needs. The Board finds that this particular site standing alone is not essential to meeting the County's aggregate needs; however it also recognizes that if enough other sites are eliminated due to conflicts, it could be, In addition, costs of transportation within the county is an important factor. Preservation of the aggregate resource at this particular site can have positive economic consequences in this regard. Transportation costs for aggregate are $.22 per ton mile. Given the cost of aggregate, such transportation costs can double the price of aggregate if aggregate must be hauled 10 to 15 miles from its point of use. The Board finds that this site is located . : ' . _ . . . - . • . z • : : - cost -over used by Black Butte Ranch for internal road construction and improvements. Therefore, periodic mining of a portion of this site will prevent material that woy.ld haeme to -be being hauled in from further away. Finally, the Board finds that the economic impacts of failure to preserve sufficient aggregate reserves are not readily mitigated. As with any mineral resource, aggregate is locationally dependent. It is a finite resource and new sources of supply cannot be created by man. 10. Social Consequences. Preserving the natural resources at the site could have negative effects on the general welfare of the County if insufficient amounts of aggregate are preserved. Regardless of the amount of supply readily available, there will always be a - demand for aggregate resources. Roads and highways in the area would still need improvement and maintenance. A deterioration of the County's roads and streets would negatively impact the liveability livability and quality of life in Deschutes County. The Board also recognizes the social consequences of increased building costs that can result front a shortage of readily available aggregate. If aggregate from this site were not available to Black Butte Ranch, its needs would add to the countywide demand for quality aggregate. 11. Environmental Consequences. Protection of the natural resources could preclude mining at the site or limit such activity. The noise, dust, traffic, human presence, scarring of the landscape and disruption of habitat and food sources associated with surface mining is Site # 316 — Revised ESEE 8 File No. PA -98-5 & TA -98-9 EXHIBIT "E" TO ORDINANCE NO. 2001-047 (11/28/01) inimicab]e to the protection of wildlife values. Therefore, protection of the natural resources by precluding or limiting mining would have positive environmental consequences. As with the mineral resource, wildlife resources are often limited by locational factors. Wildlife habitat is continually shrinking in the face of increased development and cannot be replaced. The environmental consequences in this case would be mitigated by 4he4Fttemitteftt' both the infrequency and limited area of use of the site. 12. Enemy Consequences. As mentioned above, the energy consequences of protecting the natural resource values of this site - ; " - would likely involve increased haulage distances. The Board finds that protection of natural resource values at the site would have negative energy consequences. 13. Relative Values of the Conflicting Resources. The Board finds that, based upon the ESEE consequences -discussed above, the aggregate resource and the conflicting Goal 5 resources are important relative to one another. This finding is based upon the following facts: (a) Adequate local supplies of aggregate are important to the Deschutes County economy. (b) Considering the quantity, quality, and location of this site close to the Highway 20 eeffider end use, Black Butte Ranch, and the cost of transporting aggregate, this is an important aggregate deposit. At 7 million cubic yards, this is one of the larget deposits in the County. (c) A portion ofThis site is an existing mining site. (d) Deer habitat is continually shrinking in the face of new development and cannot be replaced. Therefore, the Board finds that both the aggregate resource and the conflicting natural resources should be protected. Accordingly, the Board finds that under OAR 660-16- 010(3), protection of the aggregate resource shall be limited by protection of the natural resources. Conflicting Uses Protection of Mineral Resource 14. Economic Consequences. The economic consequences of protecting the aggregate resource relates to the impacts of surface mining on adjacent uses, the value of aggregate as a commercial commodity and the impacts of protecting employment in the mining industry and the development opportunities foregone by development of the site. Site # 316 — Revised ESEE 9 File No. PA -98-5 & TA -98-9 EXHIBIT "E" TO ORDINANCE NO. 2001-047(11/28/01) While -the The impacts of surface mining may property values of surrounding properties pa on •1• Oh V • • suffaee-ruhie,s indieetes-thetthcfc wa es. There was io " • • if• "" " ; ; • - — : e tnir,ere ; • " ; " ; * • * " • C would be if regulatiera-te iurg ge th This site is contiguous to one of the county's premier destination resorts that provides significant revenues in local governments with limited public expense for roads. schools or law enforcement. The resort brinas in over four million dollars in tax revenues per Year. Over 42% of these revenues support School District No. 6. while the resort only contributes a low number of students. Tourism and recreation are increasingly important is to the economy of Deschutes County, and the mining impacts en-suelt-sites of this site could adversely effect that sector due to Black Butte Ranch's close proximity to the site. The board finds that the Allewir.g surfaee-mining-activitieset negative ty ts ether -uses: economic impact on the ranch due to mining activities can be adequately mitigated by limiting mining to the western portion of the site. 15. Social Consequences. Preserving this site for the production of mineral and aggregate resources would have a major impact on the quality of life associated with the other land uses in the area. The negative impacts of noise, fugitive dust etnissions, and increased truck traffic would adversely impact the livability, scenic quality and compatibility of other uses in the vicinity of the project. These impacts were testified to by the neighbors of the existing sites. Such impacts may be mitigated, however, through environmental controls on the mining operation and by limiting the area to be mined. Site plan review for employee housing. in addition to a minimum setback of 250 feet, will determine if additional measures are needed to mitiaate the impacts of mining on this use. 16. Energy Consequences. The Board finds that preserving this site for the production of minerals would have overall positive energy consequences. As stated above, the energy consumed on site by mining equipment is likely to occur at some mining site in any Site # 316 — Revised ESEE 10 File No. PA -98-5 & TA -98-9 EXHIBIT "E" TO ORDINANCE NO. 2001-047 (11/28/01) event, as there is a basic need for such resources. Haul distances . . are minimum due to consumption by Black Butte Ranch. To the extent that surface mining would preclude or discourage development of the surrounding rural lands, the energy consequences would likewise be positive. 17. Environmental Consequences. The Board finds that protecting the site for mining would have the same environmental consequences set forth under paragraph 7 above. The Board further finds that such impacts can be mitigated. Protection of Conflicting Land Uses 18. Economic Consequences. Most of the uses in the surrounding zoning designations are classed as noise sensitive uses for purposes of DEQ noise regulations. In addition, conflicts arise due to the impacts of dust and changes in the landscape. Protection of surrounding conflicting uses can have the effect of precluding or limiting further surface mining activity due to noise regulations. Likewise, dust, traffic and aesthetic impacts place constraints on surface mining operations amongst conflicting land uses. While the elimination of part or all of any one site (except R.L. Coats's site No. 308 in 17-12-18 of 10 million cubic yards and 'Taylor and Sons's Sites 441-443) would not significantly impact the total supply of aggregate in Deschutes County, if every site with conflicting uses were eliminated for that reason, Deschutes County would be unable to meet its aggregate needs. Almost every aggregate site has some degree of conflict with surrounding land uses. In light of that fact, each aggregate site takes on importance, as cumulatively, individual sites with conflicts could be eliminated and prevent the County from meeting its aggregate needs. At 7 million cubic yards, this site is amongst the largest in the County. In addition, there is the further economic consequence discussed above of failing to protect sources of aggregate that are located close to their points of use. In this case, the resource is-we44-1eeated-fe; Inc en prajeets: will be solely used by Black Butte Ranch. 19. Social Consequences. The Board finds that the social consequences of allowing incompatible development to preclude the use of all or part of this site would be the same as those under the natural resource discussion above, 20. Environmental Consequences. The environmental consequences of protecting land uses at the site and surrounding land uses is mixed. Protecting the conflicting land uses could well preclude mining at the site. This would have positive environmental consequences in that the noise, dust, traffic, and aesthetic impacts associated with surface mining would be prevented. However, protecting the conflicting land uses, can also have negative environmental impacts. Thus, if the site and surrounding areas become further developed, those uses, too, can have a detrimental impact on wildlife habitat, reducing the overall supply of food and cover and increasing competition for adjoining Site # 316 — Revised ESEE 11 File No. PA -98-5 & TA -98-9 EXHIBIT "E" TO ORDINANCE NO. 2001-047 (11/28/01) 11111•1•111111111•1111111111111111111...O; undeveloped habitat. Likewise, scenic values could also be negatively affected by increased residential development. 21. Enerery Energy Consequences. Allowing development that would preclude or curtail mining at this site would create greater energy consumption because needed mineral and aggregate resources needed bv Black Butte Ranch would have to come from sites located further away. 22. Relative Values of Aggregate Use and Conflicting Uses. Based upon the analysis of the ESEE consequences of protecting the identified conflicting uses and protecting the mineral resource and the relative weight of the conflicting uses and the mineral resource, the Board finds that with respect to existing development both the mineral resource and the conflicting resources and uses are important relative to one another. This finding is based upon the following facts: (a) Adequate local supplies of aggregate materials are important to the economy of Deschutes County; Aggregate resources are a locationally dependent resource and are in limited supply in the County. The large size and quality of this deposit make it an important resource. The site aggregate. aggregate. contiguous to Black Butte Ranch. who will utilize the is is an important factor given the .22 per ton mile cost for hauling (d) Existing residential use at the Black Butte Ranch development is a well established residential and resort community occupied by full or part time resi- dents. That development has been carefully planned to provide recreational and scenic amenities to its residents. Individuals purchasing property in that development have done so with economic, quality of life, and health and safety expectations. (e) Resort areas such as Black Butte fesert Ranch are important to the Deschutes County economy. (fl Even by limiting mining activity to the western Portion of the site. the remaining aggregate, approximately one million cubic yards, constitutes approximately a 200 year supply for Black Butte Ranch. Accordingly, the Board finds that pursuant to OAR 660-16-010 it will limit the use of the mineral resource and the existing conflicting uses surrounding the site in favor of each other. Site # 316 —Revised ESEE 12 File No. PA -98-5 & TA -98-9 EXHIBIT ''E" TO ORDINANCE NO. 2001-047 (11/28/01) Potential development in the impact area is not significant enou limit eliminate the use of the aggregate resource at this site. etitt-bc aeeommedated en a thcr kr them o be a use that would e if-fly3 -mpelling need for cleyclopment: However. the existing conflicting uses surrounding the site outweigh any energy, environmental and social benefits of mining the entire site. By limiting activity to a western portion of the site the aggregate and its benefits are preserved, yet negative impacts on surrounding uses are mitigated. PROGRAM TO MEET THE GOAL 23. The Board finds that in order to protect both the aggregate resource and the conflicting resources and uses, the site will be maintained included in the Black Butte Ranch Resort Community. The western most portion of the site, consisting of 38 acres, has been partially mined and can be further mined without significant impacts on Black Butte Ranch. Consequently, that segment will be zoned BBR-SM. Mining in excess of five acres outside the 8.6 -acre area exempt from a DOGAMI permit will require both a permit from DOGAMI and site plan approval from Deschutes County. The remaining eastern portion of the site. adjacent to Black Butte Ranch will be zoned Black Butte Ranch —Utility/Limited Use Combining District. The entire site will remain on the County's inventory, subject to the following ESEE conditions: (a) (b) Only the western most 38 acres of the site will continue to be mined. Setbacks shall be required for potential conflicting residential and other development. A minimum 50 -foot setback shall be maintained from the perimeter of tax lot 202 for all surface mining activity. (c) Noise impacts shall be mitigated by buffering and screening. (d) Hours of operation shall be limited to between 7:00 a.m. and 6:00 p.m. weekdays. No operations shall be allowed on weekends and holidays. (e) Processing shall be limited to 45 days in any one year, to be negotiated with Deschutes County in the site plan process in consultation with the Oregon Department of Fish and Wildlife (ODFW). 0-) Th te: Aug'. (g0 Extraction at the site shall be limited to five acres at a time with on-going incremental reclamation (subject to DOGAMI review and approval). (hg) Mining operations, siting of equipment, and trucking of product shall be Site # 316 — Revised ESEE 13 File No. PA -98-5 & TA -98-9 EXHIBIT "E" TO ORDINANCE NO. 2001.047(11/28/01) conducted in such a manner that applicable DEQ standards are met and minimizes noise and dust. th) DOGAMI reauirements for a permit once minine affects more than 5 acres outside the 8.6 -acre exempt area shall be met. (i' Site plan approval shall be obtained from Deschutes County, under the provisions of chapter 18.52. Surface minine. of the Deschutes County Code before mining activity affects more than five acres outside the 8.6 -acre exempt area. The Board finds that processing on site will be allowed, subiect to the conditions described above. Conflicting Resources 24. The Board finds that surface mining use of the site sill will be limited by conflicting natural resource considerations by limiting mining to the western portion of the site. the provisions for screening and buffering to mitigate noise impact, the restrictions on winter processing, the hours of operation, the 5 -aer-ellicnit acre limit on excavation, and the reclamation plan conditions. The Board finds that the screening and buffering provisions of the Deschutes County Zoning Ordinance, as amended by ordinance 90-014, meet the ESEE screening and buffering requirements. The Board finds that such mitigation will not prevent the County from achieving its goal of protecting mineral and aggregate resources, since the site will be allowed to be mined. Mineral Resource 24. The Board will protect the mineral or aggregate resource by zoning the site western most 38 acre portion of the site BBR-SM/LU Combining District to allow for surface mining and subsequent activities. The Board finds that • adopted -as -pa--; o 1i9-surfacc-mie.ing package: the BBR-SM/LU zone allows mining activities such as extraction, processing, crushing, batching, and other mining -dependent uses as permitted or conditional uses and activities in the zone. Conflicting uses, such as residential uses that would irretrievably commit surface area to other uses and otherwise conflict with surface mining are not allowed uses in the zone. Agricultural and forest uses are allowed in recognition that such uses can occur without irretrievably committing the property to uses other than surface mining. In this manner the surface area of the mineral or aggregate resource is protected against establishment °fuses that would prevent mining of the mineral or the aggregate in the future. Such protection advances the goal of protection of sufficient mineral or aggregate resources to meet the County's mineral or aggregate needs. 25. The Board finds that imposition of a Surface Mining Impact Area (SMIA) combining zone as a one-half mile buffer surrounding the SM zone, as set forth in Surface Mining Ordinance 90-014, will further protect the aggregate resource and the Board so zones the one-half mile area surrounding the SM zone, except to the extent that such buffer area site # 316 — Revised ESEE 14 File No. PA -98-5 & TA -98-9 EXHIBIT "E" TO ORDINANCE NO. 2001-047(11/28/01) would extend inside an adjoining county or the urban growth boundary of the City of Bend or Redmond. The Board finds that the SMIA zone limits conflicting uses as follows: (a) New conflicting "noise -sensitive" and "dust -sensitive" uses. as defined in Title 18 of the Deschutes County Code (Zoning Ordinance), such as single-family dwellings, or other structures used for sleeping, may be sited within the SMIA zone only if the applicant has signed a waiver of remonstrance precluding protest of any surface mining activities, and closer than one-quarter mile to storage and processing sites only if the applicant can demonstrate that the proposed use will not cause a mining operation to violate the siting standards; and (b) In all cases new conflicting "noise sensitive" and "dust sensitive" uses must be located no closer than 250 feet to an SM zone. The Board finds that these provisions satisfy the ESEE condition that residential and other developments be subject to setbacks. The Board finds that such a provision is sufficient to protect the aggregate resource from conflicting future development. 26. The Board finds that, in combination with the action taken on other aggregate sites, zoning the western section of the site for surface mining fkitur-e-sufrounding con-flieting-1 ", while allowing the eastern portion to be zoned Utility/Limited Use Combining District, the County satisfies its goal of preserving sufficient aggregate resources to meet the needs of the County have Land Uses 27. Existing conflicting landuses, including residential uses and recreational uses, are protected by the requirement that continued mining is limited to the western most 38 acres of the site, that any expansion of existing surface mines meet screening requirements, and by the setback requirements, noise standards, limits on the maximum area of surface disturbance and other limitations found in the ESEE conditions and the zoning ordinance as applied to this property. The concerns of Black Butte residents have specifically been taken into account by only allowing mining on the western most 38 acres of the site, bY limiting the number of days that processing can occur, by specifying limited hours of operation, and by specifying that processing equipment shall be established in areas that will minimize noise from processing. In any event mining operations arc required to meet DEQ noise standards. Site # 316 — Revised ESEE 15 File No. PA -98-5 & TA -98-9 EXHIBIT "E" TO ORDINANCE NO. 2001-047 (11/28/01) EXHIBIT "F" ./v PARCELS CI .(BUTTE ISPROS RESORT COSTRINITY13CuNDARS SLACK ELM RANCH CCIPPRENONSTPE PTAS DESIGNATION CD RESORT COMMUNITY BLACK BUTTE RANCH RESORT COMMUNITY COMPREHENSIVE PLAN MAP Exhibit .r to Ordinance 2001-047 2000 0 2000 Feet BOARD Cf COUNTS CALM SSIONF_FLS DESCKYEES COLPiTY GREGO+ Tam Dodd, Chd Dennis R. ORR Cortsdadd WNW M. Daly, COndessiord ATTEST: Redding Sadiptscy Cold MR Wry a/ Down:tor, 201 EINGE.• Dad: /Porch . 2032 OMICELI En nE Mundt.= mem At Enrr soumwer en MI OF II* )11.0101002.11CALMIC RESORT CO.., ectmorav PH OF 1440T10014.0340nEWEECIR COMULArri C0.1"191191SNERMOOPSONA/101. Af SOW COMENHY Esseants Carte 0••••••ilf INN OF THE 7TH MOUNTAIN WIDGI CREEK RESORT COMMUNITY COMPREHENSIVE PLAN MAP Exhibit ''G" to Ordinance 2001-047 1000 Fact BOARD OF COUNTY COMMiSSCHEES OF DESCHUTES COUNTY, OREGON Tam O•Wort, CHM Donis R, Luke, ConnnasEner hichom M. D.,Coernmsroar ATTEST Recording Sscnitery Dred 014 slay D.o.E., DOM ElEttisa DAE, Much , 1 EXHIBIT "H" STAFF REPORT UNINCORPORATED COMMUNITIES BLACK BUTTE RANCH AND INN/WIDGI OF THE SEVENTH MOUNTAIN/WIDGI CREEK RESORT COMMUNITIES FILE NUMBERS AND ORDINANCE NUMBERS: PA -98-5 and TA -98-9 BOARD OF COUNTY COMMISSIONERS HEARING DATE: APPLICANT: PLANNING STAFF: REQUEST: SUMMARY: Ordinance 2001-047 amending the Rural Development Section of the Growth Management chapter of the Deschutes County Comprehensive Plan to add Findings and Polices for the unincorporated communities of Black Butte Ranch and the Inn of the 7" Mountain/Widgi Creek. Ordinance 2001-047 amending the Deschutes County Comprehensive Plan map to adopt a new comprehensive plan map for the unincorporated communities of Black Butte Ranch and the Inn of the 7" Mountain/Widgi Creek. Ordinance 2001-048 amending Title 18 of the Deschutes County Code, to add chapter 18.110, Resort Community Zone, and amend chapter 18.04, Definitions. Ordinance 2001-048 amending Title 18 of the Deschutes County Code, to adopt a new zoning map for the unincorporated communities of Black Butte Ranch and the Inn of the 7' Mountain/Widgi Creek Resort Communities. November 28, 2001 Deschutes County Christy Morgan, Associate Planner Dave Leslie, Senior Planner Catherine Morrow, Principal Planner The County proposes to amend the Deschutes County Comprehensive Plan and implementing land use regulations in the County Code for the unincorporated resort communities of Black Butte Ranch and the Inn of the 7" Mountain/Widgi Creek. This staffreport has four sections. The first section provides findings to support new descriptive text and development policies in the Deschutes County Comprehensive Plan specific to the unincorporated communities of Black Butte Ranch (the Ranch) and the Inn of the 7th Mountain/Widgi Creek (Inn/Widgi). The second section provides the Exceptions Findings to Goal 4 for the Ranch and the Inn/Widgi. The third section provides findings for comprehensive plan and zoning amendments to comply with Oregon Administrative Rules (OAR), Chapter 660, Division 22, the state administrative rule for unincorporated communities. The fourth section provides explanation of changes to Title 18 of the County Code, the Deschutes County Zoning Ordinance, to implement the comprehensive plan policies. Staff Report — File No. PA -98-5 and TA -98-9 PAGE 1 of 29— EXHIBIT "H" to ORDINANCE No. 2001-047 (11/28/2001) EXHIBIT "H" PROPOSED AMENDMENTS TO TITLE 23, DESCHUTES COUNTY COMPREHENSIVE PLAN & MAPS. The following Chapters of the Deschutes County Comprehensive Plan have been added or amended and are attached as exhibits to Ordinance No. 2001-047. 1. Chapter 23.12.010, Definitions (Exhibit "A") 2. Chapter 23.36, Unincorporated Communities and Resort Communities text (Exhibit "B") 3. Chapter 23.44.110, Black Butte Ranch and Inn of the Seventh Mountain/Widgi Creek Exceptions Statement (Exhibit "C") 4. Goal 5 Inventory (Exhibit "D") 5. ESEE (Exhibit "E") 6. Map — Black Butte Ranch Resort Community Comprehensive Plan (Exhibit "F') 7. Map — Inn of the Seventh Mountain/Widgi Creek Resort Community Comprehensive Plan (Exhibit "G") PROPOSED AMENDMENTS TO TITLE 18, DESCHUTES COUNTY ZONING ORDINANCE & MAPS. The following Chapters of the Deschutes County Zoning Ordinance have been added or amended and are attached as exhibits to Ordinance No. 2001-048. 1. Chapter 18.04.030, Definitions (Exhibit "A") 2. Chapter 18.110, Resort Community Zone (Exhibit "13") 3. Chapter 18.12.010, Establishment of zones (Exhibit "F") 4. Map — Black Butte Ranch Resort Community Zoning (Exhibit "C") 5. Map — Inn of the Seventh Mountain/Widgi Creek Zoning (Exhibit "D") 6. Map — Wildlife Area and Forest zone boundary adjustments (Exhibit "E") 7. Map — Combining Zones, Black Butte Ranch Resort (Exhibit "G") 8. Map —. Combining Zones, Inn of the Seventh Mountain / Widgi Creek Resort (Exhibit "H") Chapter 18.110 has been developed specifically for the Ranch and Inn/Widgi resort communities to provide land use regulations in accordance with the comprehensive plan policies added to the comprehensive plan for these two unincorporated communities. BACKGROUND As part of Periodic Review, Deschutes County began the unincorporated community planning project for the Ranch and Inn/Widgi in April 1998, to bring their land use mapping and development regulations into confonnance with state rules for unincorporated communities. With the adoption of Ordinance 2001-047 & 2001-048, Deschutes County will have comprehensive plan and zoning maps, comprehensive plan policies and zoning standards for both communities conforming to OAR 660, Division 22. The County will also adopt findings contained in the staff report to demonstrate that the Resort Community designation and development policies and regulations for both areas comply with the state . rules for unincorporated communities set forth in OAR 660, Division 22. The documents and findings Staff Report — File No. PA -98-5 and TA -98-9 PAGE 2 of 29 — EXHB3IT "H" to ORDINANCE NO. 2001-047 (11/28/2001) EXHIBIT "H" will then be submitted to the state for acknowledgement (approval) of the Land Conservation and Development Commission (LCDC). In addition, both communities are requesting an exception to statewide planning Goal 4, concerning land designated for forest use. The Ranch is requesting that 83 acres presently zoned Surface Mining at the northwest corner of the resort be included in the resort boundary. A "needs" exception and supporting documentation have been prepared by the Ranch to justify the inclusion of this acreage. A 'physically committed" exception will be taken for Inn/Widgi because this resort property is zoned F- 2 and an exception has not been taken in the past for this developed resort community. An amendment to the Wildlife Area (WA) combining zone map is an additional component of this proposal, that adds a WA overlay to Forest Service lands between the Deschutes River and Inn/Widgi resort, and deletes the WA overlay from a small portion of resort property. The Deschutes County Planning Commission held a public hearing on these proposed amendments on November 12, 1998 and voted to make a recommendation to the Deschutes County Board of County Commissioners (Board) concerning the comprehensive plan and zoning ordinance, as well as the corresponding maps. Since this hearing, staff has received additional information from the Ranch and as a result has made a few changes to these proposed amendments. Staff presented the changes to the Planning Commission at the November 8, 2001 meeting. The Board will hold a public hearing on November 28, 2001, to take testimony on the full package of amendments to the Deschutes County Comprehensive Plan and implementing regulations for the Ranch and Inn/Widgi Resort Communities SECTION 1: STAFF FINDINGS REGARDING TITLE 23, DESCHUTES COUNTY COMPREHENSIVE PLAN POLICIES The Deschutes County Comprehensive Plan designates the Ranch as a "rural residential exception area", while Inn/Widgi is designated as "Forest". The Comprehensive Plan does not currently address either of these communities in detail except for a brief reference to Inn/Widgi as a "destination resort". Although both communities function as destination resorts, they are not designated as Goal 8 Destination Resorts. Both communities have been identified as "unincorporated communities" under the Unincorporated Communities Rule, OAR 660-022-010(10) a, b, c, d and e. Of the four types of unincorporated community identified in OAR 660, it has been determined that the Ranch and Inn/Widgi should be designated as a "Resort Community". These two communities are the only communities the County will zone as Resort Communities under OAR 660-22. The recommended comprehensive plan policies for the "Resort Community" designation are as follows: BLACK BUTTE RANCH & THE INN OF THE SEVENTH MOUNTAIN/WIDGI CREEK POLICIES I. Land Use Policies A. General Land Use Policies 1. Land use regulations shall conform to the requirements of OAR 660 Division 22 or any successor. 2. County comprehensive plan policies and land use regulations shall ensure that new Staff Report — File No. PA -98-5 and TA -98-9 PAGE 3 of 29 — EXHIBIT "H" to ORDINANCE NO. 2001-047 (11/28/2001) EXHIBIT "H" uses authorized within the Black Butte Ranch Resort Community and the lnn of the Seventh Mountain/Widgi Creek Resort Community do not adversely affect forest uses in the surrounding Forest Use Zones. 3. Designated open space and common area shall remain undeveloped except for community recreation uses. Areas developed as golf courses shall remain available for that purpose or for open space/recreation uses. 4. The provisions of the Landscape Management Overlay Zone shall apply in Resort Communities where the zone exists along Century Drive, Highway 26 and the Deschutes River. 5. Residential minimum lot sizes and densities shall be determined by the capacity of the water and sewer facilities to accommodate existing and future development and growth. 6. The resort facility and resort recreation uses permitted in the zoning for Black Butte Ranch and the Inn of the Seventh Mountain/Widgi Creek shall serve the resort community. B. Black Butte Ranch Policies: 1. The County supports the design review standards administered by the Architectural Review Committee. 2. Residential, resort and utility uses shall continue to be developed in accordance with the Master Design for BBR and the respective Section Declarations. . Industrial activities, including surface mining, shall only occur in the area zoned Black Butte Ranch Surface Mining, Limited Use Combining District (BBRSM(LU) located in the northwest coiner of the Ranch. 4. Employee housing shall be located in the area zoned Black Butte Ranch-Utility/Limited Use Combining District (BBR-U/LU). 5. Any amendment to the allowable use(s) in either the Resort Community Distlict or the Limited Use Combining District shall require an exception in accordance with applicable statewide planning goal(s), OAR 660-04-018/022 or any successor, and DCC 18.112 or any successor. C. Inn of the Seventh Mountain/Widgi Creek Policies: 1. Any amendment to the allowable use(s) in either the Resort Community District or the Widgi Creek Residential District shall require an exception in accordance with applicable statewide planning goal(s), OAR 660-04-018/022 or any successor, and DCC 18.112 or any successor. 2. Public Facility Policies A. General Public Facility Planning Policies Staff Report — File No. PA -98-5 and TA -98-9 PAGE 4 of 29 — EXHIBIT "1-1" to ORDINANCE NO. 2001-047 (11/28/2001) 411 EXHIBIT "H" Police protection services for both communities shall be provided under contract with the Deschutes County Sheriff. B. Black Butte Ranch: 1. The Ranch Water Distribution Company and the Ranch Corporation shall confirm that water and sewer service, respectively, can be provided for new uses or expansion of existing uses that require land use approval. 2. The Ranch Water Distribution Company shall provide water service for the Ranch. 3 Sewer service for the Ranch shall be provided by the Ranch Corporation. 4. The Ranch Rural Fire Protection District shall provide fire protection services for the Ranch. 5. The roads and the bicycle/pedestrian path system within the Ranch Resort Community boundary shall be maintained by the Ranch Owners Association. C. Inn of the 7th Mountain/Widgi Creek: 1. Water service shall be supplied by on-site wells for the Inn/Widgi Resort Community. 2. New uses or expansion of existing uses that require land use approval shall be approved only upon confirmation from the City of Bend that sewer service can be provided. 3. Fire protection services for the Inn/Widgi shall be provided through a contract with the City of Bend until such time as Inn/Widgi develops another plan to provide adequate fire protection. 4. Roads in the community shall be maintained by the resort community, not Deschutes County. 5. The bicycle/pedestrian path system shall be maintained by Inn/Widgi Owners Associations. 6. Emergency access between Widgi Creek and the Inn of the 7th Mountain shall be provided in accordance with the approved development plan for the Elkai Woods town homes. The respective resort property owners shall maintain emergency access between the Inn of the 7th Mountain and Widgi Creek. SECTION 2: EXCEPTIONS FINDINGS A. Exception Findings for Black Butte Ranch Staff Report — File No. PA -98-5 and TA -98-9 PAGE 5 of 29 — EXHIBIT "II" to ORDINANCE NO. 2001-047 (11/28/2001) EXHIBIT "H" I. Request Concurrent with the application to designate Black Butte Ranch (hereafter, the Ranch) a Resort Community pursuant to OAR 660-022, Deschutes County is proposing an amendment to the Deschutes County Comprehensive Plan to take an exception to Statewide Planning Goal 4, Forest Lands, for an 82 - acre piece of land identified as tax lot # 200 in Township 14S, Range 9E, W. M. The proposed exception area, identified on Figure 1, is contiguous with the northwest corner of the Ranch. The Goal 4 exception is required in order to include this land within the Resort Community boundary of Black Butte Ranch, as provided by OAR 660-022, Unincorporated Communities, and to allow future uses for Ranch operations, as detailed below, that do not comply with Goal 4. II. Criteria A. ORS 197.732(1)(c) — Goal Exceptions, Criteria, Rules, Review. B. OAR 660-004-0018 - Planning and Zoning for Exception Areas. C. OAR 660-004-0022 — Reasons Necessary to Justify an Exception Under Goal 2, Part II(c). D. OAR 660 -004 -0020(2)(a) -(d) - Factors in Goal 2, Part II(c), Exception Requirements. HI. Findings A. ORS 197.732(1)(c) - Goal exceptions, criteria, rules, review (1) A local government may adopt an exception to a goal if (c) The following standards are met: (A) Reasons justify why the state policy embedded in the applicable goals should not apply; (B) Areas which do not require a new exception cannot reasonably accommodate the use; (C) The long term environmental, economic, social and energy consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the proposed site; and (D) The proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts. FINDING: The criteria for a "reasons" exception to Goal 4 are addressed in the findings below pursuant to OAR 660-004-0020, Goal 2, Part II(c), Exception Requirements and OAR 660-004-0022, Reasons Necessary to Justify an Exception Under Goal 2, Part II(c). Because the administrative rules in OAR 660-004 implement the state statute for exceptions, ORS 197.732, and are nearly identical in language to the statute language paraphrased in bold above, the findings below for this exception are based on the criteria and language in the rules. Staff Report - File No. PA -98-5 and TA -98-9 PAGE 6 of 29 — EXHIBIT "H" to ORDINANCE NO. 2001-047 (11/28/2001) EXHIBIT "H" B. OAR 660-004-0018, Planning and Zoning for Exception Areas (1) Purpose. This rule explains the requirements for adoption of plan and zone designations for exception areas. Exceptions to one goal ora portion of one goal do not relieve a jurisdiction from remaining goal requirements and do not authorize uses or activities other than those recognized or justified by the applicable exception. ...Adoption of plan and zoning provisions which would allow changes in existing types of uses requires application of standards outlined in this rule. (3) "Reasons Exceptions: (a) When a local government takes an exception under the "Reasons" section of ORS 197.732(1)(c) and OAR 660-004-0020 through 660-004-0022, plan and zone designations must limit the uses and activities to only those uses and activities which are justified in the exception;... FINDING: An exception to Goal 4 is needed for 82 acres of land, historically used as a source of aggregate material and as udisposal site for vegetative debris and sludge effluent in support of Ranch operations, but located outside the boundary of the existing exception area for the remaining 1830 acres encompassing the Ranch. This area has a plan and zoning designation of Surface Mining (SM). It is not acknowledged as a Goal -4 exception area. An exception is needed to include this area in the Resort Conununity boundary for the Ranch and allow for future uses to support Ranch operations that would otherwise not be allowed in a resource area. As detailed below under each of the relevant exceptions criteria, the exception area is needed in order to accommodate the needs of the Ranch. Specifically, the Ranch needs adequate space and facilities for its utility, solid waste, maintenance and vehicular storage and other resort management purposes. The uses proposed on the exception area include the following: 1. Sludge/effluent disposal; 2. Woody debris disposal 3. Solid waste transfer station; 4. Utility uses, such as telephone communications; 5. Maintenance facilities such as equipment repair shop; 6. Storage of large equipment and general storage; 7. Recreational vehicle storage; 8. Employee housing; 9. Administration offices; 10. Housekeeping facilities; and 11. Aggregate resource mining, both within and outside an exempt area. While Goal 4 allows ongoing use of the area for aggregate resource mining without an exception, it does not permit the other above -referenced uses, which are needed for general operations at the Ranch without an approved exception. In 1998, the Black Butte Ranch Association Board established priorities for the Ranch. While the process is ongoing, several priorities of the Ranch relate to the need for uses, which will be located on the exception area. Many of the priorities are utility/maintenance related -uses that will be located near the aggregate resource area in such a manner to allow ongoing use of the aggregate source for the Ranch without introducing conflicting uses to the aggregate mining operation. Altemate locations on the resort lands are not available for these uses or for employee housing, also identified as a priority for the Ranch. StaffReport — File No. PA -98-5 and TA -98-9 PAGE 7 of 29 — EXHIBIT "H" to ORDINANCE NO. 2001-047 (11/28/2001) EXHIBIT "H" The findings below demonstrate that this exception is consistent with the applicable standards for a reasons exception. The proposed uses for the exception area are justified through the findings below and will be limited to those uses specified. As discussed elsewhere in these findings, a Limited Use Combining Zone is proposed pursuant to Chapter 18.112 of the Deschutes County Code to limit the uses in the exception area to those uses justified by this exception. Proposed policies and an exception statement in the County's comprehensive plan will also limit the exception area uses at this time to those justified in this application for the exception area. C. OAR 660-004-0022 — Reasons Necessary to Justify an Exception Under Goal 2, Part 11(c). An exception under Goal 2, Part 11(c) can be taken for any use not allowed by the applicable goal(s). The types of reasons that m ay or may not be used to justify certain types of uses not allowed on resource lands are set forth in the following sections of this rule: (1) For uses not specifically provided for in subsequent sections of this rule or OAR 66, Division 14, the reasons shall justify why the state policy embodied in the applicable goals should not apply. Such reasons include but are not limited to the following: FINDING: OAR 660-004-0022(1) gives examples of the kinds of reasons, which can justify a reasons exception: "...Such reasons include but are not limited to the following: (a) There is a demonstrated need for the proposed use or acts vity, based on one or more of the requirements of Statewide Goals 3 to 19; and either (b) A resource upon which the proposed use or activity is dependent can be reasonably obtained only at the proposed exception site and the use or activity requires a location near the resource. An exception based on this subsection must include an analysis of the market area to be served by the proposed use or acti vity. That analysis must demonstrate that the proposed exception site is the only one within that market area at which the resource depended upon can reasonably be obtained; or (c) The proposed use or activity has special features or qualities that necessitate its location on or near the proposed exception site." The rule recognizes that exceptions are exceptional and that it is not possible to foresee all of the combinations of factors thatmay constitute an adequate set of "reasons" to justify an exception. They do not purport to restrict the types of reasons that may support an exception. OAR 660-04-022(1) simply provides examples that "include but are not limited" to the types of reasons provided. It recognizes that market demand and assistance to counties in meeting their planning obligations under statewide goals and acknowledged plans may be among the reasons that, taken together, explain why a particular exception is justified. OAR 660-04-022(1) clearly rules out any inference that its terms are intended to be exclusive. This exception is justified for a number of reasons, which are very similar to the examples given in the rule. These reasons are discussed below in the findings under OAR 660-660-004. Staff Report — File No. PA -98-5 and TA -98-9 PAGE 8 of 29 — EXHIBIT "H" to ORDINANCE NO. 2001-047 (11/28/2001) EXHIBIT "H" D. OAR 660-004-0020Goal 2, Part II(c), Exception Requirements. (1) If a jurisdiction determines there are reasons consistent with OAR 660-004-0022 to use resource lands for uses not allowed by the applicable Goal, the justification shall be set forth in the comprehensive plan as an exception. FINDING: Comprehensive plan policies and an exception statement are being added to the County's comprehensive plan to demonstrate that the proposed exception is justified. (See Section 1 of this staff report and Exhibit "C".) (2) The four factors in Goal 2 Part II(c) required to be addressed when taking an exception to a Goal are: (a) Reasons justify why the state policy embodied in the applicable goals should not apply; FINDING: The administrative rule explains the "reasons" requirement to mean: "***The exception shall set forth facts and assumptions used as the basis for determining that a state policy embodied in a goal should not apply to specific properties or situations Including the amount of land for the use being planned and why the use requires a location on resource land." OAR 660-004-0020(2Xa). The reasons for this exception include: The Ranch has a demonstrated need for use of the land for resort -related purposes. The exception is justified on the basis of the location of the exception area adjacent to the Ranch and its special features or qualities. Black Butte Ranch serves as a destination resort for many residents of Oregon and many visitors to the state. In order to operate the Ranch and fulfill its purposes in providing for its residents and visitors, Black Butte Ranch needs to have adequate space and facilities for its maintenance, utility and resort operations, solid waste, and maintenance storage facilities. The Ranch was developed with limited areas designated for maintenance, maintenance storage, or resort operations/public facility uses. As referenced below in the analysis of existing maintenance lands available for possible future use, the areas of the Ranch for such purposes are limited to 6 areas consisting of about 17 acres. These areas are labeled Tracts A through F on Figure 2. The existing areas utilized for various support, administrative and maintenance purposes are not adequate for Ranch purposes. Further, they are located in areas which conflict with the Ranch's resort residential and recreational uses. At each of these existing areas, the space available is extremely limited and inadequate. Resort -related uses such as golf course maintenance and resort administration compete for space in the areas and the Ranch does not have adequate acreage for various general Ranch utility, operations, and maintenance purposes. Consolidating and relocating Ranch accessory uses to the exception area can eliminate existing conflicting uses eliminated while providing areas for expansion of more compatible recreation facilities on the existing parcels. Solid Waste Transfer Use . Staff Report — File No. PA -98-5 and TA -98-9 PAGE 9 of 29 — EXHIBIT "H" to ORDINANCE NO. 2001-047 (11/28/2001) EXHIBIT "H" As the Ranch developed between 1970 and 1985, it became apparent that there was a need for a solid waste transfer site. Since this use had not been planned in the original development concept, Ranch management located a 2.5 -acre area near the entrance to the resort. This is adjacent to the police services office and general store. In the same general area, an additional 2.5 acres is utilized for recreational vehicle parking and storage (see Tract F, Figure 2). In the beginning years, homeowners deposited their trash at this location, which was picked up on a weekly basis by the County franchise contractor. The Ranch now has pickup available at individual lots, however, not all homeowners utilize this service and some continue to utilize the transfer station at the entrance to the Ranch. Solid waste from Ranch maintenance is also deposited at this site for weekly pickup. The location of the solid waste transfer and recreational vehicle parking and storage is incompatible at the front entrance to the Ranch due to the high use and visibility by visitors and owners. However, this area has been the only site available for this function. Ranch management proposes use of the exception area for these uses. Because of increased growth at Black Butte Ranch and the increased use of the facilities, the Ranch plans to expand the recreational and convenience services at the main entrance area. It is now apparent that the solid waste transfer site should be relocated as soon as possible. A larger site with less visual impact is required. Resort Utility and Onerations Black Butte Ranch's need for adequate acreage for these resort utility and maintenance purposes can only be met by the exception area and the use of the exception area fulfills the planning guidelines of Goal 8. The Ranch already uses the exception area for various industrial purposes. It is a disturbed area serving as the Ranch's source of aggregate for paths, roads and other paved areas. It is easily accessible to the Ranch and its employees who are engaged in maintenance or resort operations. In addition, its accessibility to the Ranch's visitors and guests makes it an appropriate site for the Ranch's solid waste transfer area. Thus, the use of the site minimizes environmental deterioration and maximizes the conservation of energy. The exception also serves to meet the requirements of and fulfill the purposes of Goal 9. Goal 9 requires counties to provide adequate opportunities for a variety of economic activities for the health, welfare and prosperity of Oregon's citizens. The economic development needs and requirements of Goal 9 arc fulfilled by the exception. The Ranch has a responsibility to provide for and maintain its facilities and infrastructure that is critical to its ongoing vitality and economic succ4ss. As discussed above, the nature of the infrastructure for maintenance operations and facility maintenance require updating and expansion capability. The equipment and machinery necessary for those operations include mining, snow removal, road maintenance and general maintenance, including landscaping and forest management. The Ranch needs a place to maintain and store its equipment. Likewise, the Ranch needs an adequate area to use as its solid waste transfer station. Presently, as noted in these findings, the location of the solid waste collection and disposal is both inappropriate and inadequate. Employee Housing The economic well being of the Ranch is also a factor in the need to provide employee housing. Since 1987, the Ranch has identified the need to provide an area for its seasonal employees. The feasibility of building employee housing has now been identified as a priority for the Ranch and a study of its feasibility is being. As noted above, there are no available lands for the development of employee housing within the areas presently developed with resort facilities and amenities. The needs for Staff Report — File No. PA -98-5 and TA -98-9 PAGE 10 of 29 — EXHIBIT "IP to ORDINANCE NO. 2001-047(11/28/2001) EXHIBIT "H" employee housing cannot be accommodated on the relatively few and relatively small areas that exist on the Ranch. Two of the identified areas are part of the golf course maintenance operations. These areas (Tracts C and D) are fully utilized for golf maintenance purposes and are not available or appropriate for employee housing needs. Tract B, an area adjacent to the Big Meadow golf course and the soccer/ball field and new basketball and volleyball courts is an area of high visibility and planned for resort recreational or lodging purposes. Tracts A, E or F are not adequate for employee housing because of conflicts with existing resort uses or size or topographic limitations. The exception area provides an opportunity to locate employee housing. Since employees will be utilizing the housing on a seasonal basis and will not be a year-round residency, the location near the aggregate resource is a potential conflict. However, by maintaining a minimum setback of 250 feet from the mining site and completing site plan review prior to developing the employee housing the conflicts with the mining operation can be minimized. The Ranch presently manages the aggregate extraction process so that the majority of that work is not completed during the high tourist/residential use season. Accordingly, the Ranch can minimize conflicts with a seasonal use such as employee housing. With the need for 200 seasonal employees and minimal available housing within a ten -mile radius, the Ranch needs to develop housing for 50% to 65% of the seasonal employees in order to maintain its operational needs. Employee housing can only be provided for at the exception area. For all of these reasons, the exception fulfills the purposes of Goal 9. County Comprehensive Plan Another reason establishing the justification for the exception is that the exception enables Deschutes County to meet one or more of its planning obligations. Such obligations can be found in acknowledged comprehensive plans. The County's comprehensive plan recognizes that destination resorts are important elements of the local economy. The exception serves to fulfill these planning obligations of Deschutes County. The County's acknowledged land use regulations identify the necessary elements of a destination resort with regard to utility infrastructure and other related public facility/utility services. The exception allows Black Butte Ranch to have adequate acreage to accommodate its utility and maintenance needs. A final reason justifying the exception relates to its location as a part of the Ranch and the features or qualities of the location, which are integral to the Ranch and on which the Ranch depends. The exception area is presently used for the Ranch's aggregate source and as the site for its disposal of reclaimed sludge. The proposed uses of the exception will be integrated with the surface mining operation. Vehicle maintenance and equipment storage will include trucks and other equipment presently used on site. As depicted on the attached Figure 1, the exception area includes setbacks of at least 150 from McCallister Road and area to be retained for surface mining and at least 50 feet from the boundary adjacent to resource lands. Further, the surface mining area, net of buffers includes approximately 32 acres. Black Butte Ranch's maintenance, storage, solid waste, and utility uses will also be located in that area. Staff Report — File No. PA -98-5 and TA -98-9 PAGE 11 of 29 — EXHIBIT "H" to ORDINANCE NO. 2001-047 (11/28/2001) EXHIBIT "H" (b) Areas, which do not require a new exception, cannot reasonably accommodate the use: (A) The exception shall indicate on a map or otherwise describe the location of possible alternative areas considered for the use, which do not require a new exception. The area for which the exception is taken shall be identified. FINDING: The area for which the exception is being taken is identified on Figure 1. (B) To show why the particular site is justified, it is necessary to discuss why other areas which do not require a new exception cannot reasonably accommodate the proposed use. Economic factors can be considered along with other relevant factors in determining that the use cannot reasonably be accommodated in other areas. Under the alternative factor the following (i) Can the proposed use be reasonably accommodated on nonresource land that would not require an exception, including Increasing the density of uses on nonresource land? If not, why not? (ii) Can the proposed use be reasonably accommodated on resource land that is already irrevocably committed to nonresource uses, not allowed by the applicable Goal, including resource land in existing rural centers, or by increasing the density of uses on committed lands? If not, why not? (iii) Can the proposed use be reasonably accommodated inside an urban growth boundary? If not, why not? FINDING: The nearest area, which does not require a new exception, the Tollgate subdivision, is located 3 miles (at its closest point) southeast of Black Butte Ranch. This subdivision is already physically developed as a residential subdivision. For these reasons it is not feasible for this exceptions area to accommodate the proposed uses for the Ranch. Other exception areas are located further away, closer to the City of Sisters, and cannot reasonably accommodate the needs of the Ranch for the same reasons. There is no existing resource land that is irrevocably committed to nonresource uses adjacent or nearby the Ranch property; therefore this type of land cannot accommodate the proposed uses. The nearest urban growth boundary is associated with the City of Sisters, approximately 7 miles southeast. Based on this distance it is not reasonable for the proposed uses to be placed in this area and service the needs of the Ranch. (C)This alternative areas standard can be met by a broad review of similar types of areas rather than a revs ew of specific alternative sites. Initially, a local government adopting an exception need assess only whether the similar types of areas in the vicinity could not reasonably accommodate the proposed use. Site specific comparisons are not required of a local government taking an exception, unless another party to the local proceeding can describe why there are specific sites that can more reasonably accommodate the proposed use. A detailed evaluation of specific alternative sites is thus not required unless such sites are specifically described with facts to support the ass ertion that the sites are more reasonable by another party during the local exceptions proceeding. Staff Report — File No. PA -98-5 and TA -98-9 PAGE 12 of 29 —EXHIBIT "H" to ORDINANCE NO. 2001-047 (11/28/2001) EXHIBIT "H" FINDING: As discussed in the findings above, there are no alternative sites closer than 3 miles from Black Butte Ranch and the areas identified are either physically developed or are irrevocably committed, or both, to other uses. No specific site other than the proposed exception area has been identified to the County during these proceedings; therefore, more detailed site-specific comparisons are not required. The Ranch evaluated all available lands within the resort in order to determine if its needs can be accommodated on the Ranch without the addition of the proposed exception area. The available lands within the Ranch are limited both in number and size. In addition, given their limited acreage and adjacent conflicting uses, many of the parcels cannot reasonably accommodate the needs of the Ranch for the uses proposed to be located at the exception area. An analysis was made of all remaining parcels of land available for use by or owned by Black Butte Ranch Association that are part of the Ranch. This alternative sites analysis is detailed below. The available lands within the Ranch include all lands obtained in 1982 by the Black Butte Association when the developer turned over resort operations and open spaces to the Association. These included the two large meadows, golf courses, swimming pools, tennis courts, miscellaneous recreational facilities, equestrian facilities, lodge/restaurant facilities, and water and sewer utilities, along with maintenance operations. A nurnber of residential lots were deeded to the Association for common areas to provide buffer zones in residential areas. Refer to Figure 2 for the locations of six tracts of land which were analyzed for existing and possible future uses. Tract A Tract A is the present location of both the Ranch administration and maintenance operations. This 2 - acre property is a small portion of lot 259 and all of lot 268 of the Golf Course Homesites section. It is entirely surrounded by residential units. This area serves administrative personnel and various general maintenance purposes. The Ranch has 125 fulitime employees and approximately 200 seasonal employees. Many of these 325 employees frequent the administration/maintenance area. High volume of traffic and congestion results in this residential area. This area is the only area, which provides for general maintenance of the Ranch. The other areas principally focus on the golf courses. While the original maintenance areas served the ranch adequately in the beginning stages, 25 years later the Ranch requires full-scale operations. Ranch operations for the 30 miles of roads, 30 miles of water and 35 miles of sewer lines, along with seventeen miles of bike path, 22 tennis courts, 4 swimming pools, 450 acres of meadow, and 1400 acres of forest lands requires sustained manpower and equipment to manage these facilities and resources. Tract A does not provide adequate space for large vehicle storage, storage of other maintenance vehicles or equipment and is located in an area of high conflict with residential resort uses. The existing maintenance buildings within Tract A are not compatible with the structure, size and density of the surrounding properties. The traffic volume for resort maintenance vehicles associated with the activities on Tract A is many times that of adjacent residential properties. Increased noise and visual impacts make this area incompatible for present operational uses. When this tract was first utilized as a maintenance area, the Association had nine employees, which has steadily grown to over 325, during peak season. The demand for support service has exceeded space availability in this location. Staff Report — File No. PA -98-5 and TA -98-9 PAGE 13 of 29 — EXHIBIT "H" to ORDINANCE NO. 2001-047 (11/28/2001) EXHIBIT "H" Tract A was analyzed for the potential for employee housing, but because of inadequate space this site would not fulfill current or future employee housing needs. As the resort is being more intensely utilized from a recreational standpoint, the pressure on management is to discontinue nonconforming operational uses within the resort housing areas. Tract 13 Tract B is a six -acre parcel of land that has been held by the Association for future resort and recreational uses. It is adjacent to the soccer/ball field and new volleyball and basketball courts. It is adjacent to Big Meadow Golf Course and near the west entry to the residential area. It is an area of high visibility within the Ranch. Given the traffic and noise conflicts associated with resort support facilities and general maintenance requirements, this area is not an appropriate area for such uses. The Ranch Board of Directors has set this site aside for future condominium housing or cabins to meet the pressures of increasing tourism to the resort. Tract B is the only site that the Ranch holds that is capable of being utilized for condominium or resort housing for tourism. Tract C Tract C is the maintenance area for the Big Meadow Golf Course. The golf course utilizes the entire 1.5 - acre area for golf course maintenance operations. There is no available space for general maintenance, vehicle storage and other utility uses. The site is adjacent to wetlands and meadow springs as well as the resort's bicycle path system. Tract D Tract D is the site for golf course operations of Glaze Meadow Golf Course. It is situated just southerly of a residential area and located between the existing golf courses. It is a one -acre area of high visibility and limited space. This area is just able to maintain the resources necessary to function as the golf course operations for Glaze Meadow. Tract D is less than a third of the size necessary to accommodate the employee housing and/or equipment storage. All available space is required to meet golf course maintenance obligations. Tract E Tract E is a 4 -acre common area held by the Association along the Forest Service boundary adjacent to the parking area of Glaze Meadow Golf Course. This area is on a steep side hill and located between two residential areas. Because of the steep hillside, lack of sufficient area and the high visibility of the site from a residential and recreational perspective, this site would not be suitable for maintenance facilities. Tract F Tract F is a small 1.3 -acre parcel of land owned by the Association at the north entrance to Black Butte Ranch, used presently as the recreational vehicle parking area and the solid waste transfer area. The intensity of uses and the high visibility at the main entrance precludes use of this site for high use operations and these conflicts have served as a basis for the need to relocate these uses. After two years of internal planning and resource analysis, Black Butte Ranch homeowners have developed a long-term plan for expansion of recreational activities and resources. From this work on the Staff Report — File No. PA -98-5 and TA -98-9 PAGE 14 of 29 — EXHIBIT "H" to ORDINANCE NO. 2001-047 (11/28/2001) EXHIBIT "H" above tracts, it is clear that Tracts A -F do not meet the standards necessary to develop consolidated maintenance facilities and/or employee housing facilities. (c) The long tei ui environmental, economic, social and energy consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in other areas requiring a Goal exception. The exception shall describe the characteristics of each alternative areas [sic] considered by the jurisdiction for which an exception might be taken, the typical advantages and disadvantages of using the area for a use not allowed by the Goal, and the typical positive and negative consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts. A detailed evaluation of specific alternative sites is not required unless such sites are specifically described with facts to support the asserti on that the sites have significantly fewer adverse impacts during the local exceptions proceeding, The exception shall include the reasons why the consequences of the use at the chosen si te are not significantly more adverse than typically result from the same proposal being located in areas requiring a goal exception other than the proposed site. Such reasons shall include but are not limited to, the facts used to determ ine which resource land is least productive; the ability to sustain resource uses near the proposed use; and the long- term economic impact on the general area caused by irreversible removal of the land from the resource base. Other possible impacts include the effects of the proposed use on the water table, on the costs of Improving roads and on the costs to special service districts." FINDING: OAR 660-004-0020(2)(c) requires an analysis of the comparative long-term ESEE consequences of locating the proposed uses in the proposed exception area at the Ranch, as mitigated by measures designed to reduce adverse impacts, with those of locating the same uses on other undeveloped forest lands requiring a Goal 4 exception. Environmental Conseauences There will be minimal environmental consequences to the exception area as a result of siting the needed uses on the referenced property. It is an area already utilized by the Ranch for its aggregate resource. The new uses allowed by the exception will be limited so that the resource area will continue to operate as the source of aggregate for the Ranch. The maintenance/utility uses will be located on areas to be compatible with the mining activities. The westerly portion of the exception area is well suited for these uses. The central portion of the exception area (west of George McAllister Road) is well situated for employee housing, administration, housekeeping and general maintenance since it has adequate acreage for the referenced uses. The alternative location for these uses would be some other forest land adjacent to the resort that would require an exception to Goal 4. All surrounding property is zoned for forest uses. Land to the immediate north of the proposed exception area and land adjacent to the southeast and southwest corners of the Ranch are private tracts of large acreage that not available to the Ranch. The Forest Service manages the land to the south of the proposed exception area and surrounding the remainder of the Ranch for multiple use purposes. Staff Report — File No. PA -98-5 and TA -98-9 PAGE 15 of 29 — EXHIBIT "H" to ORDINANCE NO. 2001-047 (11128t2001) EXHIBIT "H" The use of any of this land would require a change in resource management and would take additional land out of primary forest resource use. The proposed exception area is owned by the Ranch, has been partially cleared, is already used by the Ranch for aggregate and some utility uses and has road access already in place directly to the Ranch. Any alternative area would require new road construction and clearing of more acreage than is needed at the proposed exception area. This would tend to result in greater short term impacts to air quality due to road construction and long term environmental impacts to forest resources and wildlife than will occur at the proposed exception area. Economic Conseauences There will be positive economic consequences from the use of the exception area for the referenced resort -related uses. As discussed under Goal 9, above, the positive economic benefits to the state and the county would be similar if the resort needs were developed on another undeveloped rural site, but such a site would require the expenditure of significant moneys to clear and prepare the site for construction. The exception area is already used for industrial purposes and the existing surface mining use can be integrated and compatible with the other proposed resort maintenance and utility uses through the use of setbacks, site plan review for surface mining outside the area found to be exempt by DOGAMI, and site plan review for the other uses proposed in the exception area. Employee housing can be compatible through the requirement of a minimum setback of 250 feet from the mining and other measures to reduce noise and dust impacts from mining through site plan review for this use. In addition, long-term positive economic benefits will result from the use of the exception area in contrast to other rural sites. The needed resort -related uses will be situated adjacent to the Ranch. Employees, guests and visitors can, as needed, access the area for their employment or utility (solid waste disposal) purposes. If the uses were located some distance from the Ranch necessitating additional costs for road construction, travel and time, negative economic consequences would result. Social Conseouences The social consequences resulting from the uses at the exception area are not significantly more adverse than what typically would result from uses being situated on other lands. The proposed exception area is . surrounded by the other private or public timberlands and is adjacent to the Ranch. Its use for Ranch related maintenance/utility needs and employee housing will not affect neighboring lands, as may be the case with other resource land protected by Goal 4. Further, the area is already utilized by the Ranch for its surface mining operation. The addition of the needed resort -related uses on portions of the exception area will not significantly affect the nature of the uses at the site. Finally, because the exception area is located adjacent to the Ranch there are positive social consequences of using this site, as opposed to other rural forest resource sites that would require a Goal 4 exception. Enerev Conseouences Locating the needed resort -related uses on the proposed exception area conserves significant energy expenditures. This translates into positive economic consequences than would result from locating the uses on other rural lands. Further, the location adjacent to the Ranch allows users of the exception area to travel between the Ranch and the exception area without traveling great distances, resulting in less impact to the road way systems than would occur from an alternative site. The pre-existing industrial use and the integration of the surface mining use with certain of the referenced exception area uses (i.e. maintenance shop, truck storage) also results in positive energy consequences. Staff Report — File No. PA -98-5 and TA -98-9 PAGE 16 of 29 — EXHIBIT "H" to ORDINANCE NO. 2001-047 (11/28/2001) EXHIBIT "H" (d) The proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts. FINDING: The proposed uses of the exception area are compatible with other adjacent uses. Presently, the exception area is a surface mining area. The inclusion of a 50 -foot setback from adjacent properties and the restricted hours and days of use for mining and processing of aggregate material minimize the impacts from this use. The Ranch uses it routinely and seasonally for those purposes. Surrounding uses include the Ranch and large tract forest lands. The proposed exception area uses have been located to ensure that aggregate resource can be utilized in the future for Ranch purposes. The new industriallutility/maintenance uses are compatible and, in fact, integrated with the surface mining plans. Employee housing will require a minimum 250 -foot setback from the nearest mining area boundary. Also, site plan review will be required to determine if other measures need to be taken to reduce noise and dust impacts from mining. The new uses proposed in the exception area will be required to be set back at least 50 feet from the boundary of the exception property. In addition, site plan review for the new uses, with the exception of recreational vehicle storage and equipment storage will be required. This review will help to ensure that any impacts from the proposed uses will be compatible with other adjacent uses on adjacent lands and within the proposed exception area. B. Exception Findings for The Inn of the Seventh Mountain / Widgi Creek 1. Request Concurrent with the application to designate The Inn of the 7th Mountain and Widgi Creek resort developments (hereafter, the Inn/Widgi) a Resort Community pursuant to OAR 660-022, Deschutes County is proposing an amendment to the Deschutes County Comprehensive Plan to take an exception to Statewide Planning Goal 4, Forest Lands, for the entire development. The exception to Goal 4 is required in order to include this land within a Resort Community boundary, as provided by OAR 660- 022, Unincorporated Communities, in order to comply with Goal 1 I, Public Facilities and Goal 14, Urbanization. Because the resort facilities at the Inn/Widgi have been developed for many years the County is requesting an exceptions pursuant to OAR 660-04-025, Exception Requirements for Land Physically Developed to Other Uses. II. Criteria A. ORS 197.732(1)(a) — Goal Exceptions, Criteria, Rules, Review. B. OAR 660-004-0018 - Planning and Zoning for Exception Areas. C. OAR 660-004-0025 — Exception Requirements for Land Physically Developed to Other Uses. ffl Findings A. ORS 197.732(1)(a) — Goal exceptions, criteria, rules, review (1) A local government may adopt an exception to a goal if: (a) The land subject to the exception is physically developed to the extent that it is no longer available for uses allowed by the applicable goal; *** Staff Report — File No. PA -98-5 and TA -98-9 PAGE 17 of 29 — EXHIBIT "H" to ORDINANCE NO. 2001-047 (11/28/2001) EXHIBIT "H" FINDING: The criteria for a "physically developed" exception to Goal 4 are addressed in the findings below pursuant to OAR 660-004-0025, Exception Requirements for Land Physically Developed to Other Uses. Because the administrative rules in OAR 660-004 implement the state statute for exceptions, ORS 197.732, and are identical in language to the applicable statute language in bold above, the findings below for this exception are based on the criteria and language in the applicable administrative rules. B. OAR 660-004-0018, Planning and Zoning for Exception Areas (1) Purpose. This rule explains the requirements for adoption of plan and zone designations for exception areas. Exceptions to one goal or a portion of one goal do not relieve a jurisdiction from remaining goal requirements and do not authorize uses or activities other than those recognized or justified by the applicable exception. ...Adoption of plan and zoning provisions which would allow changes in existing types of uses requires application of standards outlined in this rule. (2) "Physically Developed and "Irrevocably Committed" Exceptions to goals other than Goals 11 and 14. Plan and zone designations shall limit uses to: (a) Uses which are the same as the existing types of land use on the exception site; or *** FINDING: The County is proposing a "physically developed" exception to Goal 4 to allow a resort community zoning designation to be established in accordance with OAR 660-022, Unincorporated Communities. The Inn/Widgi site is already developed to an extent, which, for all practical purposes, limits its use to the type of resort uses that already exist. Resort Comnumity zoning is being adopted concurrent with this exception. The resort community zoning uses permitted in the County zoning ordinance, Title 18 of the County Code, will further limit any future development to resort related uses only. For these reasons the remaining criteria in OAR 660-004(2) are not applicable to this proposal and are not addressed with findings for this exception. C. OAR 660-004-0025 —Exception Requirements for Land Physically Developed to Other Uses (1) A kcal government may adopt an exception to a goal when the land subject to the exception is physically developed to the extent that it is no longer available for uses allowed by tbe applicable goal. (2) Whether land has been physically developed with uses not allowed by an applicable Goal will depend on the situation at the site of the exception. The exact nature and extent of the areas found to be pbysi cally developed shall be clearly set forth in the justification for the exception. The specific area(s) must be shown on a map or otherwise described and keyed to the appropriate findings of fact The findings of fact shall identify the extent and location of the existing physical development on the land and can include information on structures, roads, sewer and water facilities, and utility facilities. Uses allowed by the applicable goal(s) to which an exception is being taken shall not be used to justify a physically developed exception. FINDING: The County is proposing a goal exception based on the existing physical developments on the property, which are not allowed under Goal 4. These physical developments include the existing inn of the Seventh Mountain resort and condominium facility and the existing Widgi Creek residential and„golf course facility. The site is also developed with expanses of paved roads, parking areas and vehicle storage and maneuvering areas. The physical improvements at the Inn of the Seventh Mountain are illustrated and described in detail on Figure 3; a site plan drawing covering this 80 -acre site. Figure 4, an aerial photograph of the site and Staff Report — File No. PA -98-5 and TA -98-9 PAGE 18 of 29 — EXHIBIT "H" to ORDINANCE NO. 2001-047 (11/28/2001) EXHIBIT "H" surrounding lands, also illustrates development of the site. As indicated on these exhibits, the property is physically developed with resort facilities and accessory uses i ncluding condominiums, convention facilities, restaurants and numerous recreational facilities (pool complex, spa, ice/roller rink, volleyball pit, tennis courts, equestrian center, etc.). A small 1.2 -acre area formerly used for on-site sewage treatment, located near the boundary with Widgi Creek to the east, might be redeveloped some day for resort uses, but no plans exist as of now for this to occur. This area is surrounded by resort development and could only be redeveloped in the future for resort purposes. A second area on the property, approximately 13 acres in size, of which only about 8-9 acres is usable due to steep slopes down to the Deschutes River, could possibly developed in the future for resort facilities such as a lodge, single- family or multi -family dwellings, or conference center. This area is within the federal Wild and Scenic and state Scenic Waterway corridor along the Deschutes River and is surrounded by other resort property developed for resort purposes. The use of the Inn of the Seventh Mountain as a destination resort was initiated prior to implementation of the statewide planning goals in Deschutes County. The use continued to be permitted as a "destination resort." after the property was designated as forest in compliance with Goal 4. However, House Bill 3661 in 1993 eliminated destination resorts as a use in the forest zone except as allowed under Goal 8. The Inn of the Seventh Mountain property has never been approved as a dest ination resort pursuant to Goal 8, and thereforeisconsidered a nonconforming use. The development of the site as a destination resort can therefore be used tO justify a "physically developed" exception to Goal 4. Widgi Creek was approved in 1983 as a resort including 107 single-family homes, 103 townhouses, a regulation golf course and appurtenant golf facilities, including clubhouse, driving range and maintenance facilities. The physital developments at Widgi Creek encompass 237 acres and are Shown on Fi gureS 5 and 6,(an,aerial photograph). .The IayoUt for the town homes, known as Elkai Woods, is depicted on Figure 6. When Widgi Creek was approved it was Zoned F3. In 1992, when the County amended its Forest zone and discontinued the F3 zone to comply with legislative changes, the resort became zoned F2 and became a nonconforming use. As ofNovember 2001,.70 single-family homeshaVe been constructed and all single-fanfilY lots have beensold. The majority of town homes have been constructed. The remaining town homes are expected be completed in 2002. Similar to the Inn of the Seventh Mountain, Widgi Creek has never been approved as a Goal ,8 destination resort, however the development of the site justifies a "physically developed" exception to Goal 4. Ai illustrated in the Figures, Widgi Creek is for all practical purposes built -out. SECTION 3: STAFF FINDINGS REGARDING OAR 660, DIVISION 22, UNINCORPORATED COMMUNITIES The following language in bold is quoted directly from OAR Chapter 660, Division 22, Unincorporated Communities. The purpose of OAR 660-022 is to establish a statewide policy for the planning and zoning of unincorporated communities that recognizes the importance of communities in rural Oregon. It is intended to expedite the planning process for counties by reducing their need to take exceptions to statewide planning goals when planning and zoning unincorporated communities. This division interprets Goals 11 (Public Facilities and Services) and 14 (Urbanization) concerning urban and rural development outside urban growth boundaries and applies only to unincorporated communities defined in OAR 660-022-0010, as noted below. Staff Report — File No. PA -98-5 and TA -98-9 PAGE 19 of 29 — EXHIBIT "H" to ORDINANCE NO. 2001-Q47 (11/28/2001) EXHIBIT "H" OAR 660-022-0010 Definitions For purposes of this division, the definitions contained in ORS 197.015 and the statewide planning goals (OAR Chapter 660, Division 15) apply. In addition, the following definitions apply: (10) "Unincorporated Community means a settlement with all of the following characteristics: (a) It Is made up primarily of lands subject to an exception to Statewide Planning Goal 3, Goal 4 or both; (b) It was either identified in a county's acknowledged comprehensive plan as a "rural community", "service center", "rural center", "resort community", or similar term before this division was adopted (October 28, 1994), or it is listed in the Department of Land Conservation and Development's January 30, 1997 "Survey of Oregon's Unincorporated Communities"; (c) It lies outside the urban growth boundary of any city; (d) It is not incorporated as *city; and (e) It met the definition of one of the four types of unincorporated communities in sections (6) through (9) of this rule, and included the uses described in those definitions, prior to the adoption of this division (October 28, 1994). FINDINGS: Black Butte Ranch (the Ranch) is primarily an acknowledged rural residential exception area. Findings for a `reasons" exception to Goal 4 to add 82 acres to the Ranch community boundary are included in the previous section of the staff report and an exceptions statement is included in the ordinance designating the Ranch as an Unincorporated Resort Community. The Inn/Widgi is acknowledged as Forest Resource land. Findings for a physically built exception to Goal 4 for the entire area of the Inn/Widgi are included in the previous section of the staff report and exceptions statement is included in the ordinance designating the Inn/Widgi as an Unincorporated Resort Community. The two resort communities are not incorporated as cities and are both outside urban growth boundaries. Both the Inn/Widgi and the Ranch were included on the Department of Land Conservation and Development's January 30, 1997 "Survey of Oregon's Unincorporated Communities." Findings below show that the Ranch and the Inn/Widgi met the definition of a resort community prior to the adoption of OAR 660-022. Therefore, with the adoption of the exception to Goal 4 for the Inn/Widgi, both the Ranch and the Inn/Widgi qualify as unincorporated communities under OAR 660-022-010(10). OAR 660-022-0020 Designation of Community Areas - Boundaries of Unincorporated Communities (1) Except as provided In OAR 660-22-070, county comprehensive plans shall designate and Identify unincorporated communities In accordance with the definitions in OAR 660-22-010. Counties may amend these designations as circumstances change over time. FINDINGS: OAR 660-22-010 contains the following four types of community designations for unincorporated communities: "Resort Community", "Rural Community", "Rural Service Center" and "Urban Unincorporated Community." A community can be designated as either a Resort Community OR an Urban Incorporated Community if it meets the definition of both (OAR 660-022-0020 (6). OAR 660-022-010(6) "Resort Community" is an unincorporated community that was established primarily for and continues to be used primarily for recreation or resort purposes; and Staff Report — File No. PA -98-5 and TA -98-9 PAGE 20 of 29 — EXHIBIT "H" to ORDINANCE NO. 2001-047 (11/28/2001) EXHIBIT "Ii" (a) Includes residential and commercial uses; and (b) Provides for both temporary and permanent residential occupancy, including overnight lodging and accommodations. The Ranch and Inn/Widgi meet the definition for either a resort community or an urban unincorporated community. Both communities have historically been considered destination resorts, although neither is designated as such under Goal 8. Both include a combination of uses that fit the definition of a resort community. The Ranch: Was established in 1970 by Brooks Resources primarily as a residential planned development with resort and recreation amenities. The Ranch encompasses 1,830 acres north of Sisters on the south side of Highway 20. An additional 82 acres is being included through an exception for a total 1,912 acres. The total number of residential lots, 1,252, includes 76 condominium units and 1,122 single-family dwelling lots. All but about 54 lots have been developed. The resort is the site of two 18 - hole golf courses, lodge/restaurant facility, a horse stable and other recreation amenities. Public water and sewer systems and a fire station service the Ranch. The Deschutes County Sheriff provides police services to the community. Inn/Widgi: The site for the Inn of the Seventh Mountain has been developed since the late 1960s and has been considered historically to be a stand-alone resort community with overnight lodging and recreation facilities for tourists. The initial boundary was established in 1972 and encompasses 22.65 acres. The Inn includes horse stables, tennis courts, golf course, skating rink, swimming pools and other recreation amenities, and a restaurant, meeting rooms and multi -story lodging units for resort guests. Many of the dwelling units at the Inn are occupied seasonally but some residences are occupied year round. Commercial uses open to overnight guests and the public include the restaurant, skating rink and golf course, guided raft trips on the Deschutes River and a retail/rental sport shop. Widgi Creek was approved in 1983 as a 237 -acre expansion to the Inn including a golf course with surrounding residential lots consisting of 107 lots for single-family dwellings and 103 lots for condominium units. The city of Bend provides sewer service (except approved on-site septic systems) and fire protection for Inn/Widgi. Water is provided by on-site wells. Security service is provided by the Inn/Widgi Resort Community and the Deschutes County Sheriff provides police services. In conclusion, the description for each community meets the definition of a "Resort Community" contained in OAR 660-22-010(8). Amendments to the Deschutes County Comprehensive Plan, zoning ordinance text and corresponding maps designate the Ranch and Inn/Widgi as Resort Communities and provide for their future development accordingly. (2) Counties shall establish boundaries of unincorporated communities In order to distinguish lands within the community from exception areas, resource lands and other rural lands. The boundaries of unincorporated communities shall be shown on the county comprehensive plan map at a scale sufficient to determine accurately which properties are included. (3) Only land meeting the following criteria may be Included within an unincorporated community boundary: (a) Land which has been acknowledged as a Goal 3 or 4 exception area and historically considered to be part of the community provided the land only Includes existing, contiguous concentrations of: (A) Commercial, industrial, or public uses; and/or (B) Dwelling units and associated residential lots at a greater density than exception lands outside rural communities. Staff Report — File No. PA -98-5 and TA -98-9 PAGE 21 of 29 — EXHIBIT "H" to ORDINANCE NO. 2001-047 (11/28/2001) EXHIBIT "H" FINDINGS: The resort community boundaries for the Ranch and Inn/Widgi were determined using the following map sources: 1. 1972 Deschutes County Zoning map. 2. 1979 Deschutes County Comprehensive Plan and Zoning maps. 3. Deschutes County parcel base map. The comprehensive plan map shows the boundaries of the Ranch and Inn/Widgi resort communities at a scale that identifies individual parcel boundaries. The Ranch: The community boundary for the Ranch consists of 1,912 acres. Of this, 1,830 acres includes the main resort development, the resort's recreational amenities, and the residential areas. It is an area that was previously acknowledged as a Goal 4 exception area and has historically been considered to be a part of the community. It is currently zoned RR -10 (Rural Residential). The remaining property consists of approximately 82 acres that is currently zoned Surface Mining (SM) and is designated as Forest in the comprehensive plan. As such it is currently considered a resource area, not an exception area. This area is owned by the Black Butte Association and is located contiguous to the northwest comer of the 1830 acres. A "reasons" exception is being taken concurrent with this comprehensive plan amendment and zone change to bring the 82 acres into the Ranch boundary for use as a maintenance facility area and employee housing. This area has historically been considered a part of the community and has been used for a variety of resort and industrial uses since the original development of the Ranch. A portion of the exception area (12 acres) has been used by the Ranch as its source of aggregate since 1970. Aggregate has been mined and processed on this land and have been utilized as base and crushed rock for road and path construction throughout the Ranch. The eastem 44 acres of the exception area has been used for other purposes related to maintenance, including debris disposal and sludge effluent disposal. This land is also utilized as the disposal site for all tree/undergrowth debris removal from the Ranch as part of the community's ongoing fire protection plan, in addition to being used for resort open space and buffering purposes. These uses have been occurring on the land for over 20 years, so the land is historically considered part of the community. This 82 -acre exception area, along with the other 1,830 acres comprises all of the land owned and managed as a part of the Ranch. These areas are otherwise entirely surrounded by U.S. Forest Service lands and private timber company holdings. As a result, the Resort Community consists only of lands owned and managed by the Ranch and does not extend into other adjacent resource lands. Inn/Widgi: Inn/Widgi expanded to its current size in 1983 with the inclusion of Widgi Creek, a golf course and residential area. The existing community boundary consists of 22.65 acres for Inn of the 7th Mountain and approximately 237 acres for the golf course/Widgi Creek. The use of the site as a destination resort was initiated previous to implementation of the statewide planning goals in Deschutes County. Upon implementation of the statewide planning goals, the property was designated as "forest" in compliance with Goal 4, and the use continued to be permitted as a "destination resort". However, in 1993 HB 3661 eliminated destination resorts as a use in the forest zone except as allowed under Goal 8. This property has never been approved as a destination resort pursuant to Goal 8 and is therefore considered a legal nonconforming use. The "built and committed" exception that is being taken for the entire Inn/Widgi community boundary area is in accordance OAR 660-04-018, Planning and Zoning for Exception Areas, and OAR 660-04-025, Exception Requirements for Land Physically Developed to Other Uses. Staff Report — File No. PA -98-5 and TA -98-9 PAGE 22 of 29 — EXHIBIT "H" to ORDINANCE NO. 2001-047(11/28/2001) EXHIBIT "H" These exceptions allow for the rezoning of the property under OAR 660-022 in compliance with Goal 11, Public Facilities and Services, and Goal 14, Urbanization in order to re -designate land currently zoned for resource use to an urban incorporated community zone designation. The 2001 Resort Community comprehensive plan maps for the Ranch and the Inn/Widgi (Exhibits "F" and "G" to Ordinance 2001- 047) and zoning maps (Exhibits "C" and "D" to Ordinance 2001-048) supersede the previous county comprehensive plan and zoning maps for these areas. (4) Community boundaries may include land that is designated for farm or forest use pursuant to Goals 3 and 4 if all the following criteria Is met: (a) The land is contiguous to Goal 3 or 4 exception lands included In the community boundary; (b) The land was occupied on the date of this division (October 28, 1994) by one or more of the following uses considered to be part of the community: Church, cemetery, school, park, playground, community center, fire station, museum, golf course, or utility facility; (c) Only the portion of the lot or parcel that is occupied by the use(s) In subsection (b) of this section is included within the boundary; and (d) The land remains planned and zoned under Goals 3 or 4. FINDING: These criteria are not applicable to either the Ranch or Inn/Widgi because neither community will include land designated fro farm or forest use within their boundaries. All the land within the communities will have an exception to Goal 4. OAR 660-022-030 Planning and Zoning of Unincorporated Communities (Resort Community) (1) For ... resort communities... counties shall adopt Individual plan and zone designations reflecting the projected use for each property (e.g., residential, commercial, industrial, public) for all land in each community. Changes In plan or zone designation shall follow the requirements to the applicable post - acknowledgment provisions of ORS 197.610 through 197.625. (2) County plans and land use regulations may authorize any residential use and density in unincorporated communities, subject to the requirements of this division. FINDINGS: The 2001 Comprehensive Plan Maps for the Ranch and Inn/Widgi contain the sole designation of "Resort Community". The 2001 Inn/Widgi Zoning Map includes the designation of "Resort Community" with two districts: "Widgi Creek Residential District" and "Resort District". The 2001 Ranch Zoning Map designates the existing 1830 acres as "Resort District," and the remaining 82 acre exception area as two Limited Use Combining Districts: the western 38 acres is "Black Butte Ranch - Surface Mining (BBR-SM/LU)", and the eastern 44 acres is "Black Butte Ranch -Utility (BBR-U/LU)". The Ranch: All of the property in the Ranch community boundary is in a previously acknowledged Goal 4 exception area, excluding the 82 -acre site that is in the Limited Use Combining Zone. The exception for this site is being taken concurrent with this application in accordance with OAR 660-04-018, Planning and Zoning for Exception Areas, and OAR 660-04-022, Reasons Necessary to Justify an Exception under Goal 2, Part II(c). The Ranch originally proposed to designate the western 38 acres of the exception area as a "Surface Mining/Utility District," with the eastern 44 acres designated as "Resort Community -Resort District". Under this proposed designation, the 44 acres would have been allowed the same type of development as the remainder of the community's 1830 acres. Staff Report — File No. PA -98-5 and TA -98-9 PAGE 23 of 29 — EXHIBIT "H" to ORDINANCE NO. 2001-047 (11/28/2001) EXHIBIT "H" However, DCC 18.112 states that a Limited Use Combining Zone shall be used to carry out the requirements of OAR 660-04-018/022 where a goal exception is taken to ensure that permitted uses are limited to those uses justified by the exception statement. Therefore, in order to conform to OAR 660- 04-018/022 as well as DCC 18.112, the entire 82 acres will have a Limited Use Combining District overlay as described above. The eastern 44 acres, designated `Black Butte Ranch —Utility" Limited Use Combining District (BBR-U/LU) allows for uses such as solid waste transfer station, sludge/effluent disposal, composting, maintenance and utility uses including a repair shop, large equipment and general storage, maintenance facilities, recreational vehicle storage, employee housing, administration and housekeeping offices. The.westem 38 acres, designated "Black Butte Ranch — Surface Mining Limited Use Combining District" (BBR-SM/LU) will allow only surface mining activities until such time as the site is reclaimed, at which point a solid waste transfer station and equipment repair and maintenance shop will be permitted subject to site plan review. The Goal 5 ESEE (Economic, Social, Environmental and Energy) analysis for this site has been changed to reflect the proposed zoning in the proposed exception area. The ESEE revision is included as Exhibit "E" to comprehensive plan amendment. (3) County plans and land use regulations may authorize only the following new industrial uses In unincorporated communities: (a) Uses authorized under Goals 3 and 4; (b) Expansion of a use existing on the date of this rule; (c) Small-scale, low impact uses; (d) Uses that require proximity to rural resource, as defined in OAR 660-004- 0022(3)(a); (e) New uses that will not exceed the capacity of water and sewer service available to the site on the effective date of this rule, or, if such services are not available to the site, the capacity of the site itself to provide water and absorb sewage; (f) New uses more intensive than those allowed under subsection (a) through (e) of thls section, provided an analysis set forth In the comprehensive plan demonstrates, and land use regulations ensure: (A) That such' uses are necessary to provide employment that does not exceed the total projected work force within the community and the surrounding rural area; (B) That such uses would not rely upon a work force served by uses within urban growth boundaries; and (C) That the determination of the work force of the community and surrounding rural area considers the total Industrial and commercial employment In the community and Is coordinated with employment projections for nearby urban growth boundaries. FINDINGS: Resort communities approved through this unincorporated community process have fixed boundaries with no option for future expansion. There are no new industrial uses allowed. Although the surface mining that will take place in the Ranch exception area is considered an industrial use (OAR 660- 022-0010(4), it is not considered to be a new use. OAR 660-022-0020 (3)(a)(A) which states that land may be included within an unincorporated community boundary if it has been acknowledged as a Goal 4 exception area and is historically considered to be part of the community provided the land only includes existing, contiguous concentrations of industrial uses. The exception area has historically been considered a part of the Ranch and surface mining has historically taken place on this land for the benefit of Ranch. (4) County plans and land use regulations may authorize only the following new commercial uses In unincorporated communities: (a) Uses authorized under Goals 3 and 4; (b) Small-scale, low Impact uses; Staff Report — File No. PA -98-5 and TA -98-9 PAGE 24 of 29 — EXHIBIT "H" to ORDINANCE NO. 2001-047 (11/28/2001) EXHIBIT "H" (c) Uses intended to serve the community and surrounding rural area or the travel needs of people passing through the area. FINDING: OAR 660-022-0010(1) defines "commercial use" as the use of land primarily for the retail sale of products or services, including offices. OAR 660-022-0030(10) further defines a small-scale, low impact commercial use as one which takes place...in a building or buildings not exceeding 4,000 square feet of floor space. There are no new commercial uses allowed for either the Ranch or the IrmlWidgi as defined in OAR 660- 22-010. However, commercial -type uses that are ancillary to the resort community are allowed. County staff has discussed this issue with staff at DLCD and has identified uses in DCC Title 18.04.030 that are intended to be larger than 4,000 square feet in size to document that resort facilities may include a 'commercial use' component that are not stand-alone commercial businesses. Such uses may include resort lodge and conference facilities, indoor skating arena, expansion of existing clubhouses, etc. Small- scale, low impact" commercial uses are not listed as allowed uses in the Resort Community zoning ordinance (DCC Title 18.110). The uses permitted, even for those activities that might be considered to be "commercial" to some degree, are only those uses that meet the definition of a "resort facility" or a "resort recreation facility" as defined in DCC Title 18.04.030. Any new uses will be the same as those that have already been established in the resort communities with no adverse impact on the forestland surrounding the resort communities. In addition, DCC Title 18.110.050(2)(e) requires any new uses adjacent to land zoned Forest to have a minimum setback of 20 feet from the Forest zone boundary. The underlying theme to this approach is that commercial uses at the Ranch and Inn/Widgi resorts do not fit the type of commercial use activity defined in the rule. Instead, the zoning permits that the commercial -type uses at the Ranch and Inn/Wedge that are ancillary and supportive of the overall function of these areas as destination resorts that contain a significant component ofpermanent and seasonal residents. The zoning also recognizes that neither community attracts customers off the highway or from the surrounding urban areas of Sisters and Bend for the purpose of providing retail sales of merchandise or services, including business office activities, the types of uses defined as "commercial" in the rule. Permanent and seasonal residents live at both communities and guests visit them to pursue vacation and recreation activities such as golf, tennis, bike or horseback riding, rafting trips, etc., and to enjoy dining at an on-site restaurant A variety of products are sold at the general store at the Ranch that provide residents and visitors with food and other items. Golf and tennis clothing, equipment and accessories and souvenirs and clothing with resort emblems are sold at both resorts. The scope of these 'commercial' retail activities is directly related to the resort and recreation operations that occur at both communities and is intended to serve the resort community. (5) County plans and land use regulations may authorize hotels and motels In unincorporated communities only if served by a community sewer system and only as provided In subsections (a) through (c) of this section: (a) Any number of new motel and hotel units may be allowed In resort communities; (b) New motels and hotels up to 35 units may be allowed In an urban unincorporated community, rural service center, or rural community If the unincorporated community Is at least 10 miles from the urban growth boundary of any city adjacent to Interstate Highway 5, regardless of Its proximity to any other UBG; Staff Report — File No. PA -98-5 and TA -98-9 PAGE 25 of 29 — EXHIBIT "H" to ORDINANCE NO. 2001-047 (11/28/2001) 11 EXHIBIT "H" (c) New motels and hotels up to 100 units may be allowed in any urban unincorporated community that is at least 10 mile from any urban growth boundary. FINDING: The Ranch is served by a community sewer system, as defined by OAR 660-022-0010(2). Inn/Widgi is connected to the City of Bend municipal sewer system. Therefore any number of new hotels and motels are authorized in these communities under the unincorporated corrununity rule. (6) County plans and land use regulations shall ensure that new uses authorized within unincorporated communities do not adversely affect agricultural or forestry uses. FINDINGS: Livestock and horse grazing are permitted uses that have existed historically within the Ranch boundary. No new conflicts are being proposed that would adversely affect these uses from continuing. There are no agricultural or forest uses occurring within the community boundary at the Inn/Widgi. U.S. Forest Service lands and private timber company holdings surround the Ranch. Inn/Widgi is also surrounded by U.S. Forest Service lands. Both communities were designed and developedas destination resorts are Substantially built -out. Both communities have successfully co- existed with the forest uses on surrounding public lands historically. (7) County plans and land use regulations shall allow only those uses which are consistent with the identified function, capacity and level of service of transportation facilities serving the community, pursuant to OAR 660-012- 0060(1)(a) through (c). FINDINGS: The county land use regulations require new development proposals to include facts documenting that the function, capacity and level of service of the affected transportation facility are adequate to serve the proposed use. The Ranch is served by Highway 20, identified as a Principal Arterial on the Deschutes County Transportation Plan. Inn/Widgi is served by Century Drive/Cascade Lakes Highway, also identified as a Principal Arterial on the Deschutes County Transportation Plan. There will be no significant impact on these highways, as the facilities already exist in each of the resort areas. The Resort Community designation will not allow any new types of uses to be developed other than resort -related facilities as both communities are substantially developed as resorts. The Oregon Department of Transportation is the service provider for both highways and presented no opposition to theses communities being designated as "Resort Communities". (8) Zoning applied to lands within unincorporated communities shall ensure that the cumulative development: (A) Will not result in public health hazards or adverse environmental impacts that violate state or federal water quality regulations; and (B) Will not exceed the carrying capacity of the soil or of existing water supply resources and sewer services. FINDINGS: The Ranch: The Ranch is served by domestic water and sewage systems that are adequate for current and future needs. Inn/Widgi: Inn/Widgi has its own wells and uses city sewer services. Existing services meet current needs and are not in danger of becoming insufficient. Weekly water quality testing is done in conformance with all prescribed standards. The state may also conduct well testing, at their discretion. (9) County plans and land use regulations for lands within unincorporated communities shall be consistent with acknowledged metropolitan regional goals Staff Report — File No. PA -98-5 and TA -98-9 PAGE 26 of 29 — EXHIBIT "1-1” to ORDINANCE NO. 2001-047 (11/28/2001) EXHIBIT "H" and objectives, applicable regional functional plans and regional framework plan components of metropolitan service districts. FINDING: This criterion is not applicable because there is no metropolitan service district within Deschutes County. OAR 660-022-0050 Community Public Facility Plans A public facility plan is required for all communities over 2,500 in population. For all communities a plan addressing sewer and water facilities is required if: 1) The existing facilities are insufficient or are projected to become insufficient (due to physical conditions, financial circumstances, changing state or federal standards, or additional growth or build out); 2) The community is served by groundwater and Is In a groundwater limited area; or 3) The community has been declared a health hazard or has a history of failing wells. FINDING: Neither community has over 2500 in population. Both the Ranch and Inn/Widgi have existing water and sewer facilities that are adequate. Neither community is in a groundwater limited area nor is there history of failing wells. OAR 660-022-0060 Coordination and Citizen Involvement Counties shall ensure that residents of unincorporated communities have adequate opportunities to participate In all phases of the planning process In accordance with their acknowledged citizen Involvement programs. When a county proposes to designate an unincorporated community or to amend plan provisions or land use regulations that apply to such a community, the county shall specify the following: (a) How residents of the community and surrounding area will be Informed about the proposal; (b) How far in advance of the final decision residents of the community and the surrounding area will be Informed about the proposal; (c) Which citizen advisory committees will be notified of the proposal. (3) The Information on these three points shall be Included in the appropriate plan amendment proposals or periodic review work task. (5) Proposals to designate, plan or zone unincorporated communities shall be coordinated with special districts...likely to be affected by such actions...and Include a minimum of 45 -day mailed notice to all cities and special districts located within the distance described in OAR 660-22-040(2). FINDINGS: The following citizen involvement program was used for the Ranch and Inn/Widgi unincorporated communities planning project that satisfies the notice requirements for legislative decisions detailed in Title 22 of the DCC. The Resort Community comprehensive plan policies and zoning ordinance are the product of a number of stakeholder meetings with staff, and a community meeting for each resort. Stakeholder meetings at the Ranch occurred on May 1, May 18, June 8 and June 29, 1998. A community meeting was held at the Ranch on July 27, 1998. Stakeholder meetings for Inn/Widgi were conducted on July 10, July 29 and August 26, 1998. The community meeting for Inn/Widgi took place on September 14, 1998. Staff' Report — File No. PA -98-5 and TA -98-9 PAGE 27 of 29 — EXH B T "H" to ORDINANCE NO. 2001-047 (11/28/2001) h11...,04.hy,,...1.1J1/41.14u1Y4 EXHIBIT "H" Prior to the stakeholder meetings, a newsletter was mailed to all stakeholders and property owners in both communities, adjacent property owners and agencies that might be affected by or interested in the outcome of this project. The newsletters described the unincorporated community planning and zoning project, identified the material that will be adopted by the County as a result of the project and indicated how interested individuals could get more information and be involved in the process. In addition, The Ranch Report, mailed to all property owners at the Ranch, contained articles describing the project and included the meeting schedules. Draft documents were mailed to stakeholders for review during the stakeholder meeting process. In October 1998, an update was provided to all stakeholders and agencies, including the drafts of the proposed plan policies and zoning ordinance and a meeting schedule for the public review phase of the project before the Planning Commission and Board of County Commissioners. Agencies informed about project work for the Ranch include: US Forest Service; State of Oregon: Department of Transportation, Department of Fish & Wildlife, Department of Land Conservation and Development, Department of Geology & Mineral Industries, Watermaster - District 11, Department of Forestry, Department of Environmental Quality; City of Sisters; County: Environmental Health Division and Road Department. Agencies informed about Inn/Widgi community project include: US Forest Service; Oregon Department of Transportation, Oregon Department of Fish & Wildlife, Oregon Department of Land Conservation and Development, Oregon State Parks, City of Bend Fire Department, and Bend Metro Park and Recreation District. The meetings were well attended by resort staff and representatives, particularly at the Ranch where the Board of Directors for the owner's association and resort staff took a very active role in reviewing policies and draft ordinance language. Attendance by and contact from individual landowners at both resort areas, and by agency staff was generally sparse. This may have been due to a perception that significant changes would not occur at either resort as a result of this project work because both resorts are substantially built, out and have their own internal controls for future development ip accordance with approved master plans. This is a correct perception for the most part. However, the 82 -acre exception area that would be included in the Ranch boundary and an internal piece of land encompassing approximately .8.r/buildable— . tiA. "i • ffer significant potential for some additional development. This potential could not be realized at either resort unless and until the rezoning to a Resort Corrununity designation occurs, concurrent with the exceptions to Goal 4 previously described. However, development in each of these exception areas will be limited by the zoning ordinance restrictions in Chapter 18.110 of the County zoning ordinance. The Deschutes County Planning Commission held a Public Hearing on November 12, 1998. At the public hearing the planning commissioners heard testimony on draft amendments to the Ranch and Inn/Widgi comprehensive plan text, comprehensive plan map, zoning ordinance text and zoning map. Approximately four people attended the public hearing on this matter. The Planning Commission voted to make a recommendation concerning the comprehensive plan and zoning ordinance, as well as the corresponding maps, to the Board of County Commissioners (Board) for adoption. The Board will hold a public hearing on November 14, 2001, to take testimony on the full package of amendments to the Deschutes County Comprehensive Plan and implementing regulations for the Ranch and Inn/Widgi Resort Communities. Staff Report - File No. PA -98-5 and TA -98-9 PAGE 28 of 29 – EXHIBIT "H" to ORDINANCE NO. 2001-047 (11/28/2001) I Ytiltrniiiihigl., EXHIBIT "H" All future amendments to the plan designations and policies or zoning for the resort communities must be made in accordance with the procedures in Deschutes County Code, Title 22 and applicable provisions of the Oregon Administration Rules and state statute(s). Staff Report — File No. PA -98-5 and TA -98-9 PAGE 29 of 29 — EXHIBIT "H" to ORDINANCE NO. 2001-047(11/2812001) ZONING/LAND USE MAP 81/2 SE1/4 SEC. 5, T.149., R9E, W.M. N8951:307- 2666.59' 14.0 Ac (GR 9.5 Ac. (NEI) /LUI'DISTRICT MO AMES - U LU -DISTRICT 44.0 ACET E7$7lNG MINING AREA PI -12oc. (APPROX TREE UNE) N895409•E 2665.49' PROPOSE0 USES CF EUSTING PIT AREA CI 1. CURRENT SURFACE MINING - 10 IR. SUPPLY 2. EFFLUENT STORAGE FUTURE SOW WAtie ThMtFER RtgoRT. INDUSTRIAL. AND MAINTENANCE USES PROPOSED USES I. FUTURE SURFACE' MINING - 50 )R. SUPPLY APPLICATION OF RECLAIMED tMuOir, SLUDGE AND MAINTENANCEAITIUTY USES 0 I. SURFACE MINING - 140 WAR SUPPLY 2. APPUCATTON OF RECLAIMED El -FLUENT, szvoc& MAINTENANCE/UTILITY AND RESORT rActuna US 0 1. LARGE ECIUIPMEVE STORAGE 2.C4FNERAL STORAM MAINTENANCE a RoDAR 4. R.V. PARKING 5. TUE:PHONE COMMUN1CA17OVS I. DIPLOYEE HOUSING 2. AINIMSTRATION AND RESCRT CEFICES. J. HOUSOCEEIING 4 alIERAL MAINTENANCE 0 I. BUFFER AREA 2. APPUCAIION or RECLAIMED SLUDGE .3. RESORT FACILITIES OUTSIDE OF BUFFER AREAS . _ .100/ : 980814 REV. DAT : JANUARY 21, 1999. AREA . • . 12.0 Amt. NET Or BLIIILNS AREA 6.0 Ac. NET OF BUFFERS 14.1 Ac.± ArEr OF BUFFERS SM/LU - Surface Mining/Limited Use District 8.4 Act 18.5 Ac. 41110* 40111110 SCALE: 1.4019' 9.5 Ac.t NET Or BUFFERS 18.5 Ac. 11 U/LU - Utility . Limited Use District SURVEYORS; ENGINEERS & PLANNERS HICKMAN, WILLIAMS & ASSOCIATES, INC 803 SW INDUS17IA1 WAY. SUM la EMI. ORMON 97702 PHONE (541) .389-9351 FIGURE 1 PROPOSED EXCEPTION AREA - BLACK BUTTE RANCH Property Layout 1. BuRding & Facility Guide A. Offices & Lobby B. Convention Center C. Josiah's & Lounge D. Recreation Office E. Horseshoe Pits F. Paulna Room G. Pools & Waterslide H. Mini Gott I. Sauna/Bath House J. Tennis courts K. Basketball Court L. Stables M. Playgrounds N. Volleyball 0. Putting Green P. Forest Room/Board Room 0. MI. Market & Deli R. Pool Bar S. Spa Complex U. Skating Rink/Pavilion V. Gift Shop W. Additlonal Parking %. 880 Area Y. Broken Top Meeting Room 2.. Nature TraH FIGURE 3 THE I N N OF THE SEVENTH MOUNTAIN \'VFDS A T WIDGI CREEK Excellence in Townhome Living' To Cluh.housc M1 4 'a Q e .` e 13 DECISION OF DESCHUTES COUNTY HEARINGS 0111,10ER FILE NUMBERS: ' APPLICANT/ PROPERTY OWNER: APPLICANT'S AGENT: APPELLANT: APPELLANT'S ATTORNEY: REQUEST: STAFF REVIEWER: HEARING DATE: RECORD CLOSED: 1. A. A-04-1 (MC -03-13, SP -03-43) Elkai Management LLC c/o Dale Bernards 1750 SE Harbor Way, Suite 310 Portland, Oregon 97201 David Williams Hickman , Williams & Associates, Inc. 805 S.W. Industrial Way, Suite 10 Bend, Oregon 97702 Kiefer A. Tobin 60584 Elkai Woods Drive Bend, Oregon 97702 Gerald A. Martin Francis Hansen & Martin, LLP 1148 N.W. Hill Street Bend, Oregon 97701 Appellant appeals from an administrative decision approving the applicant's request to modify a tentative subdivision plan for the Elkai Woods Townhomes to reconfigure Lots 1 through 11, and approving a site plan for Phase 6 of Elkai Woods Townhomes. Paul Blikstad, Associate Planner February 10, 2004 March 9, 2004 APPLICABLE STANDARDS AND CRITERIA: Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. 2. 3. Chapter 13.04, Title, Purpose and Definitions Section 18.04.030, Definitions Chapter 18.110, Resort Community Zone * Section 18.110.030, Widgi Creek Residential District Chapter 18.124, Site Plan Review Elkai Management LLC A-04-1 (MC-03-13/SP-03-43) * Section 18.124.060, Approval Criteria B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.08, General Provisions * Section 22.08.010, Application Requirements * Section 22.08.020, Acceptance of Application * Section 22.08.035, False Statements on Application and Supporting Documents 2. Chapter 22.24, Land Use Action Hearings * Section 22.24.030, Notice of Hearing or Administrative Decision 3. Chapter 22.32, Appeals * Section 22.32.010, Who May Appeal * Section 22.32.015, Filing Appeals * Section 22.32.020, Notice of Appeal * Section 22.32.027, Scope of Review 4. Chapter 22.36, Limitations on Approvals * Section 22.36.040, Modification of Approval 11. FINDINGS OF FACT: A. Location: The subject property is part of the Elkai Woods Townhomes subdivision within Widgi Creek/Seventh Mountain Golf Village development. It is located off Century Drive adjacent to the Inn of the 7th Mountain southwest of Bend. The property subject to this appeal is described as Tax Lots 200, 300, 400, 500, 600 and 700 on Deschutes County Assessor's Map 18-1 1-22DA. 13. Zoning and Plan Designation: The subject property is designated Resort Community and is zoned Resort Community, Landscape Management Combining Zone (LM) and Wildlife Area Combining Zones (WA). C. Site Description: The subject property consists of contiguous lots, roads and common areas within Elkai Woods Townhomes. Many lots are developed with dwellings units. D. Procedural History: The Widgi Creek/Seventh Mountain Golf Village development has been the subject of numerous land use applications and decisions since 1983. Those most relevant to Elkai Woods Townhomes and the subject applications and appeal are listed below: IVfP-95-19; a partition to divide the Widgi Creek development into two parcels, one for the townhome project and the remainder parcel. This application was withdrawn. Elkai Management TLC A-04-1 (MC-03-13/SP-03-43) 2 FP -95-1, a financial segregation to segregate the townhome site from the remainder parcel. The StaffReport states this application is on hold. AD -95-16, an application for a declaratory ruling for a determination that the Widgi Creek/Seventh Mountain Golf Village project has been "initiated", which allowed the townhome applications to be submitted. The findings and decision on this application was rendered on September 1, 1995. SP -96-5, site plan for an expansion and upgrade of the Widgi Creek Golf Course maintenance facility. The findings and decision on this application was rendered on March 5, 1996. TP -96-857 and SP -96-10, tentative plat for 86 lots within Elkai Woods Townhomes, and a Site Plan for Phase 1 ofElkai Woods (eight dwelling units - Lots 17-20, 49- 52). The findings and decision on these applications was rendered on March 28, 1996, SP -96-72; site plan for an expansion of the clubhouse facility for the Widgi Creek Golf Course. The findings and decision on this application was rendered on September 18, 1996. • SP -96-74, site plan for an amenities complex for the Elkai Woods townhome project. The findings and decision on this application was rendered on October 4, 1996. FPA -97-14, final plat approval for phase 1 of Elkai Woods at Widgi Creek (Lots 17- 20, 49-52). The final plat for Phase 1 was recorded on April 3, 1997. SP -97-31, site plan for Phase 2 (12 units - Lots 13-16, 45-48, 53-56) of Elkai Woods at Widgi Creek. The findings and decision on this application was rendered on June 19, 1997. SP -97-52, site plan for restroom buildings on the front and back nine holes of the golf course. The findings and decision on this application was rendered on July 31, 1997. FPA -97-49, final plat approval for Phase 2 of Elkai Woods at Widgi Creek (Lots 13-16, 45-48, 53-56). The final plat for Phase 2 was recorded on November 25, 1997. SP -98-42, site plan for a revised amenities complex for the Elkai Woods townhome project. The findings and decision on this application was rendered on August 28, 1998. • SP -98-57, site plan for Phase 3 of Elkai Woods, 24 units - Lots 21-23, 37-44, 57-60, Elkai Management LLC A-04-1 (MC-03-13/SP-03-43) 3 83-86. The findings and decision on this application was rendered on November 13, 1998. kPA-99-7, final plat approval for Phase 3 of Elkai Woods (Lots 21-28, 37-44, 57- 60, 83-86). The final plat was recorded March 19, 1999. • SP -99-48, site plan for Phase 4 of Elkai Woods, 17 units — Lots 61-77, The findings and decision on this application was rendered on December 10, 1999, FPA -00-11, final plat approval for Phase 4 of Elkai Woods (Lots 61-77). The final plat was recorded on May 4, 2000. FPA -01-10, final plat approval for a replat of Lots 21-28 in Phase 3. The final plat was recorded on February 26, 2001. These lots are now referenced as Lots 1-8 of the replat of Lots 21-28 Elkai Woods Phase 3. DR -01-9, declaratory ruling to determine that the Elkai Woods project had been initiated. The findings and decision on this application was rendered on August 7, 2001. MC -02-6, SP -02-14, RP -02-1 (MA -02-9), modification of approval for relocating Lot 11 at Elkai Woods, making it part of Phase 5, a replat of Lots 37-40, and a site plan for 18 units in Phase 5. The findings and decision on these applications was rendered on September 24, 2002, The platting of Phase 5 included a replat of Lots 37-40, so the total number of lots platted (and replatted) as of phase 5 in Elkai Woods is 75 lots. 1,PA-03-16, final plat approval for Phase 5 of Elkai Woods (Loots 29-36, replatted Lots 37-40, and Lots 78-33). The final plat was recorded on June 25, 2003. The Staff Report notes that with the platting of this phase, two lots labeled Lot 83 inadvertently were created, one in Phase 3 and another in Phase 5. The total number of townhome lots in Elkai Woods as of the platting of Phase 5 is 75 lots. The subject modification and site plan applications were submitted on October 16, 2003 and were.accepted by the county as complete on November 15, 2003. Therefore, the 150 -period for issuance of a local .land use decision under ORS 215.427 would have expired'on April 13; 2004. The county issued an administrative Findings and Decision (hereafter "administrative decision") approving the applications with conditions on December 23, 2003. On January 5, 2004 appellant filed his notice of appeal from the administrative decision. A public hearing on the appeal was held on February 10, 2004. At. the public hearing, the Hearings Officer received testimony and evidence. In addition, staff planner Paul Blikstad stated that notice of the subject application and the administrative decision were sent to different groups of property owners — the former to the owners of property within 250 feet of the subject property and the latter to the owners of property within 750 feet of the subject property. The Hearings Officer questioned whether this difference in notice areas could jeopardize the finality of the Elkai Management LLC A-04-1 (MC-03-13/SP-03-43) 4 decision in this matter and requested additional information from the parties on this issue. The Hearings Officer announced her intention to issue preliminary findings on the notice issue and to conduct a site visit to the subject property and vicinity. The Hearings Officer lefl the written record open through February 17, 2004 for comments from staff and the parties on notice, through February 24, 2004 for the submission of all other evidence and issuance of the Hearings Officer's site visit report, through March 2, 2004 for the Hearings Officer's issuance of preliminary findings on notice, and through March 9, 2004, for the applicant's submission of final argument pursuant to ORS 197,763. The Hearings Officer conducted a site visit on February 11, 2004 and issued a site visit report on February 12, 2004. On March 2, 2004 the Hearings Officer issued preliminary findings on the notice issue. The record closed on March 9 2004. Because the applicant agreed to extend the written record from the February 10th public hearing through March 2, 2004, under Section 22.24.140 of the county's development procedures ordinance the 150 -day period was tolled for 21 days and now expires on May 4, 2004. As of the date of this decision there remain 22 days in the 150 -day period. E. Request: Appellant appeals from an administrative decision approving the applicant's request to modify the Elkai Woods Townhomes tentative subdivision plan to reconfigure Lots 1 through 11 and site plan approval for Phase 6 of Elkai Woods Townhomes. F. Public/Private Agency Comments: The Planning Division sent notice of the applicant's proposal to a number of public and private agencies and received responses from: the Deschutes County Property Address Coordinator, Road Department, Building Division, Environmental Health Division, Assessor and Transportation Planner, the City of Bend Engineering Division; the Oregon Health Division; the Oregon Department of Parks and Recreation; and the Oregon Department of Water Resources, Watermaster 7 District 11, These comments are set forth verbatim at pages 6-7 of the administrative decision. The following agencies did not respond to the notice: U.S. Forest Service and Qwest Communications. G. Public Notice and Comments: The Planning Division mailed individual written notice of the applicant's proposal to the owners of record of all property located within 250 feet of the subject property. As discussed above, the Planning Division also mailed individual notice of the administrative decision to the owners of record of all property located within. 750 feet of the subject property. The legal effect of this discrepancy in notice area is discussed in the findings below. In addition; notice of the public hearing on the appeal was published in the "Bend Bulletin" newspaper, and the subject property was posted with a notice of proposed land use action. As of the date the record in this matter closed, the county had received three letters from the public in response to these notices — one in support of the application and two in opposition to the application. In addition, three members of the public testified at the public hearing on the appeal. Public comments are addressed in the findings below. Elkai Management LLC A-04- l (MC -03- l 3/SP-03-43) 5 HI. CONCLUSIONS OF LAW: A. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.24, Land Use Action Hearings a. . Section 22.24.030, Notice of Hearing or Administrative Decision A. Individual Mailed Notice 1. Except as otherwise provided for herein, notice of a land use application shall be mailed at least 20 days prior to the hearing for those matters set for hearing, or within 10 days after receipt of an application for those matters to be processed administratively with notice. Written notice shall be sent by mail to the following persons: a. The applicant. b. Owners of record of property as shown on the most recent property tax assessment roll of property located: 1. Within 100 feet of the property that is the subject of the notice where any part of the subject property is within an urban growth boundary; 2. Within 250 feet of the property that is the subject of the notice where the subject property is outside an urban growth boundary and not within a far or forest zone, except where greater notice is required under DCC 22.24.030(A)(4) for structures proposed to exceed 30 feet in height; or 3. Within 750 feet of the property that is the subject of the notice where the subject property is within a farm or forest zone, except where greater notice is required under DCC 22.24.030(A)(4) for structures proposed to exceed 30 feet in height. Elkai Management LLC A-04-1 (MC-03-13/SP-03-43) 6 FINDINGS: As discussed in the Findings of Fact above, on March 2, 2004 the Hearings Officer issued preliminary findings on the issue of notice. 1 stated my intention that the preliminary findings not be considered a final land use decision but rather be incorporated into the final decision on the appeal. Therefore, I include the following findings on notice in this decision. The record indicates the subject property is located outside the Bend Urban Growth Boundary and is zoned Resort Community. The county sent notice of the applicant's proposal to the owners of record of all property located within 250 feet of the subject property, and sent notice of the administrative -decision to the owners of record of all property located within 750 feet of the subject property. Appellant argued the subject application should be re -noticed to all persons owning property within 750 feet of the subject property and that additional evidence should be accepted from such persons. Appellant cited no statutory or zoning ordinance authority for its position.' Staff responded that because the subject property is not within an urban growth boundary and is not zoned Exclusive Farm Use or Forest, under Section 22.24.030(A)(I)(b) the required notice area was only 250 feet, Therefore, staff argued notice to owners of property within 750 feet of the subject property was not required and the county's act of expanding the notice area to 750 feet for the administrative decision did not confer the right to notice on such persons.2 The Hearings Officer concurs with staff's analysis and finds the county's expansion of the notice area from 250 to 750 feet for the administrative decision did not require the county to re - notice the subject application to owners of property within 750 feet of the subject property or to re -open the record to allow the submission of new evidence from such persons. Therefore, 1 find the county did not err in providing notice of the decision to persons not entitled to such notice. 2. Chapter 22.32, Appeals a. Section 22.32.010, Who May Appeal A. The following may file an appeal: 1. A party; * * FINDThIGS: Appellant participated in the administrative proceedings by submitting a letter dated November 3, 2003 into the administrative record. Therefore the Hearings Officer finds appellant is a party entitled to appeal the administrative decision. b. Section 22.32.015, Filing Appeals A. To file an appeal, an appellant must file a completed notice of At the public hearing, appellant's attorney stated he believed everyone entitled to notice had received notice. Persons within the 750 -foot notice area who received notice of the administrative decision and who commented on it nevertheless became parties to the administrative proceedings by virtue of their written participation. Elkai Management LLC A-04-1 (MC-03-13/SP-03-43) 7 appeal on a form prescribed by the Planning Division and an appeal fee. 13. Unless a request for reconsideration ha been filed, the notice of appeal and appeal fee must be received at the offices of the Deschutes County Community Development Department no later than 5:00 p.m. on the twelfth day following mailing of the decision* * FINDINGS: The record indicates appellant filed his notice of appeal, accompanied by the required appeal fee, on January 5, 2004, within twelve days of December 23, 2003, the date the administrative decision was mailed.3 Therefore the Hearings Officer finds this appeal was timely. c. Section 22.32.020, Notice of Appeal Every notice of appeal shall include: A. A statement raising any issue relied upon for appeal with sufficient specificity to afford the Hearings Body an adequate opportunity to respond to and resolve each issue in dispute. FINDINGS: The notice of appeal consists of a completed county appeal application form and a two-page attachment stating that in approving the applicant's proposed modification, the administrative decision improperly: 1. approved an additional dwelling unit over and above the 86 dwelling units previously approved by this Hearings Officer in 2002; 2. approved a detached single-family dwelling rather than a townhome on Lot 11; 3. approved a "commercial activity" — i.e., the subdivision's water company facilities -- to be located on a lot approved only for residential uses; and 4. included an incorrect- reference to Phase 5 of Elkai Woods Townhomes in referring 10 the requirement for installation of an emergency access. The Hearings Officer finds appellant's notice of appeal raises these issues on appeal with sufficient specificity to allow me to resolve each issue. In addition to the four issues raised in appellant's notice of appeal, at the public hearing appellant and members of the public who testified raised two additional issues. Appellant and others argued the applicant lacked authority to submit the subject applications.' Members of the public who testified at the hearing also argued the lot reconfiguration approved by the administrative decision would reduce the amount of available open space and thereby negatively impact surrounding lots. The Hearings Officer finds that because these issues were raised by members of the public at their first opportunity to do so — i.e., at the public hearing on The twelfth day following the mailing of the administrative decision fell on Sunday, January 4, 2004. Therefore, appellant had until Monday, January 5, 2004 to file his appeal. I In his November 3, 2003 let -ter responding to notice of the applications, appellant raised several other issues not included in his notice of appeal and therefore not before the Hearings Officer on appeal. Elkai Management LLC A-04-1 (MC-03-13/SP-03-43) 8 appeal from an administrative decision -- they are properly before me on appeal. Each of the six issues raised on appeal is addressed separately in the findings below. c. Section 22,32.027, Scope of Review A. Before Hearings Officer or Planning Commission. The review on appeal before the Hearings Officer or Planning Commission shall be de novo. FINDINGS: The Hearings Officer finds de novo review means 1 may consider both the administrative record and evidence presented on appeal. FIRST ASSIGNMENT OF ERROR The administrative decision improperly approved the creation of ore than the 86 lots previously approved FINDINGS: The administrative decision includes the following findings concerning the applicant's compliance with the requirements for a modification: "The applicant is proposing to construct the same number of dwelling units as was proposed under the previous approval in TP -96-857, and in the same area as the existing units. The revised tentative plan indicates that a small area (approximately 8100 square fee) of the golf course property wo-uld be incorporated as part of "Tract A." Stafflinds that this is a minor change to the existing development and approval and is not a substantially new proposal. * * * The sante total number of dwelling units (86) will be constructed. The area where Wilt 11 IS to be placed was already proposed for a dwelling unit." The Hearings Officer has carefully reviewed the tentative subdivision plan for Elkai Woods Townhomes approved in 1996, the modified tentative plan approved in 2002, and the revised tentative plan dated October 15, 2003 and submitted with these applications. All three tentative plans include 86 residential lots, The revised tentative plan includes 21 common areas scattered throughout the subdivision, "Tract A" on which the subdivision's water facilities are located, and 86 residential lots. The revised tentative plan includes two lots labeled "Lot 11" — one adjacent to "Tract A" and one adjacent to "Common 10." One of these lots should be labeled "Lot 12." Nevertheless, the total number of lots is still 86 The Hearings Officer understands the confusion created by the long and convoluted history of the Widgi Creek development in general and the Elkai Woods Townhomes subdivision in particular, including changes in ownership, multiple land use decisions and reconfigurations of lots and common areas, and construction that did not correspond with the recorded plats. 5 Nevertheless, 1 find no evidence in this record that the county's approval of the revised tentative plan authorized the creation of more than 86 residential lots in Elkai Woods 5 The revised tentative plan also shows an area adjacent to Lot 83 that is labeled "Potential Area for Replat of Lot 83." The record indicates the lot lines for Lots 83 and 84 on the revised tentative plan do not correspond with the "as -built" lot lines and townhomes. Elkai Management LLC A -04-I (MC -03-1 3/SP-03-43) 9 Townhomes. Therefore, I find appellant's first assignment of error is without merit. SECOND ASSIGNMENT OF ERROR The administrative decision improperly approved a detached single-family dwelling on Lot 11 rather than a townhome. FINDINGS: The submitted revised tentative plan for Elkai Woods Townhomes shows a detached dwelling on Lot 11 located approximately 20 feet from the dwelling unit on Lot 10. At the public hearing, the applicant's engineer, Dave Williams from Hickman, Williams & Associates, testified that the dwelling unit on Lot 11 was intended to be a townhome and not a single-family dwelling. He stated the unit on Lot 11 could be attached to the unit on Lot 10, The Hearings Officer finds appellant's second assignment of error has merit. However, I find this error can be corrected with imposition of an additional condition of approval requiring the applicant to submit a revised tentative plan showing the dwelling units on Lots 10 and 11 redesigned so that they are attached. THIRD ASSIGNMENT OF ERROR The administrative decision improperly approved a "commercial" activity on a lot approved only for residential use. FINDINGS: At the public hearing the applicant's engineer Dave Williams testified that in 1995 the applicant planned to drill a new well to serve the Widgi Creek/Seventh Mountain development and to move the development's water facilities to a new location. Mr. Williams stated that the applicant's plans changed due to the projected cost of relocating the well and water facilities and because since 1995 the Oregon Department of Water Resources has imposed strict new rules for obtaining new groundwater well permits, Mr. Williams stated that considering these factors the applicant elected not to drill a new well and to leave the water facilities at their present location on what is called "Tract A" on the revised tentative plan for Elkai Woods Townhomes. The record indicates, and the Hearings Officer's site visit observations confirmed, that these facilities consist of a small single -story building painted the same color as the surrounding townhome buildings, an underground cistern, two above -ground cistern vent pipes painted a pale orange color, and miscellaneous small equipment stored outside. The record also indicates that water system business is conducted off-site in offices located in Bend and Portland. The administrative decision includes the following findings on the nature of the water system: "Staff also finds that the water system and its use and maintenance, adjacent to the existing lot 13 and near the proposed lot 11, is not a 'commercial' use. This water system serves the entire Widgi Creek/SMGV [Seventh Mountain Golf Village] development and has been in place for many years." Appellant argued this finding is erroneous and in conflict with the Elkai Woods Townhomes covenants, conditions and restrictions (CC&R's). The Hearings Officer disagrees. First, the Elkai Management LLC A-04-1 (MC-03-13/SP-03-43) 10 county does not enforce subdivision CC&R's. They are in the nature of a private contract enforceable only by the parties. Second, the water system facilities are not a "commercial use" as defined in Title 18. Section 18.04.030 of the zoning ordinance defines "commercial use" as: * * * the use of land primarily for the retail sale of products or services, including offices. It does not include factories, warehouses, freight terminals or wholesale distribution centers. find the Widgi Creek water system clearly does not fall within this definition. Although the record indicates the water system is a utility regulated by the Public Utility Commission, the portion of the system located on the subject property does not involve retail or wholesale sales of products or services. Rather, these water facilities are part of the domestic water delivery system — not unlike a fire hydrant that is part of the fire protection water delivery system. Appellant argued the Hearings Officer should not use the code definition of "commercial use" but rather should find the water system "commercial" because it is not "residential" — i.e., it is not a dwelling. I disagree. I find the water system facilities are an accessory use to the residential uses permitted in the Widgi Creek Residential District of the Resort Community Zone under Section 18.110.030. 1 further find they clearly are "accessory," defined in Section 18.04.030 as: * * * a use or structure incidental and subordinate to the main use of the property, and located on the same lot as the main use. * * * The area occupied by the water system facilities represents a tiny fraction of the land within the Widgi Creek development and the Elkai Woods Townhomes subdivision and the facilities themselves clearly are subordinate to the surrounding residential uses. For the foregoing reasons, the Hearings Officer finds appellant's third assignment of error is without merit.6 FOURTH ASSIGNMENT OF ERROR The administrative decision improperly referenced Phase 5 ofElkai Woods Townhomes rather than Phase 6 in requiring installation of an einergency access. FINDINGS: The administrative decision includes Condition of Approval 8 which states: "The applicant shall install an emergencyernergencyJ7re access gate al the property line comnon to Widgi Creek curd the Inn of the Seventh Mountain prior to issuance 6 Opponents Walter Kardash and Robert Selder, Elkai Woods Townhomes property owners, argued the water system facilities should not be allowed to remain on "Tract A" because Elkai Woods property owners relied on earlier developer representations that these facilities would be moved. The Hearings Officer disagrees. Again, any understandings or agreements between the developer and property owners are not enforceable by the county. Elkai Management LLC A-04-1 (IVIC-03-13/SP-03-43) 11 of any building permits for the units in phase V. The gate design shall require approval fioni the Bend Fire Department. "(Emphasis added.) At the public hearing, Paul Blikstad acknowledged the underscored reference to Phase V was a typographical error and should have been Phase VI. For this reason, the Hearings Officer finds appellant's fourth assignment of error has merit. However, I find this error can be corrected with a corrected condition of approval imposed as part of this decision. FIFTH ASSIGNMENT OF ERROR The county improperly accepted these applications as complete because the applicant did not have authority to submit them as owner of the subject property. FINDINGS: The subject applications state the owner of the subject property is Elkai Management LLC and are signed by Dale Bernards as both the applicant and the applicant's agent. At the public hearing, appellant presented evidence from the Secretary of State's Office that at the time these applications were submitted in October 2003, Elkai Management LLC had been dissolved and no longer existed. In response, Dale Bernards testified that he was the managing partner of Elkai Management LLC and that he had inadvertently failed to renew the registration for Elkai Management LLC. Mr. Bernards submitted a document filed with the Secretary of State's Office on January 21, 2004 registering Elkai Management LLC as a "limited liability company managed by a single manager" — i.e., Dale Bernards. Subsequently, Mr. Bernards submitted a letter dated February 16, 2004 stating that the six tax lots comprising the subject property had the following ownership: 1. Tax Lots 200, 300, 500 and 700: Elkai Management LLC 2, Tax Lots 400 and 600: Dale Bernards Mr. Bernards argued that because.he is the managing partner of Elkai Management LLC, he effectively controls all of the subject property for purposes of applying for and obtaining land use approval. Appellant did not dispute Mr. Bernard's status as having a controlling interest in the subject property, but rather argued the applicant should be required to submit new applications accurately reflecting the ownership of the subject property. The Hearings Officer concurs with appellant that the subject applications did not accurately reflect the legal owner of each tax lot at the time of the applications. However, the record indicates that at the tirhe the county accepted the applications as complete it was not aware Elkai Management LLC's change of status. The question, then, is what if any remedy for this error is available and appropriate. I find this question is addressed in the procedures ordinance. Section 22.08.020 provides in pertinent part: A. Development action and land use action applications shall not be accepted until the planning director has determined that (1) the requirements of DCC 22.03.010 have been met and (2) the application is complete or the application is deemed to be complete under state law. Elkai Management LLC A-04-1 (MC-03-13/SP-03-43) 12 B. An application is complete when in the judgment of the Planning Director all applicable issues have been adequately addressed in the application. C. Acceptance of an application as complete shall not preclude a determination at a later date that additional criteria need to be addressed or a later determination that additional information is needed to adeouately address applicable criteria. (Emphasis added.) Section 22,08.035 provides: lithe applicant or the applicant's representative or apparent representative makes a misstatement of fact on the application regarding property ownership, authority to submit the application, acreage, or any other fact material to the acceptance or approval of the application, and such misstatement is relied upon by the Planning Director or Hearings Body in making a decision whether to accept or approve the application, the Planning Director may upon notice to the applicant and subject to the applicant's right to a hearing declare the application void. (Emphasis added.) The Hearings Officer finds Section 22.08.035 authorizes the Planning Director to declare the subject applications void for containing a misstatement of ownership upon which the county relied in accepting the applications. However, I also find this section should be read in conjunction with Section 22.08.020 which authorizes the county to call for — and presumably to accept -- additional information after the application has been accepted as complete. In other words, I find that these two provisions read together allow the applicant to submit, and the county to accept, corrections to misstatements in the applications. I further find that where, as here, there is no question Mr. Bernards had the authority to submit the subject applications, and the applications identify both Elkai Management LLC and Dale Bernards as owners, no legitimate purpose would be served by requiring Mr. Bernards to submit new applications again listing these two parties. For the foregoing reasons, the Hearings Officer finds appellant's fifth assignment of error has no merit.7 SLYTH ASSIGNMENT OF ERROR The administrative decision improperly found the proposed lot reco igurotion ivould not adversely affect surrounding property. Appellant and other Elkai Woods TOwnhomes property owners who testified at the public hearing objected to the proposed tentative plan modification and site plan approval for Elkai Woods Townhomes Phase 6 because they believe these approvals will have the effect of reducing the amount of common area as well as natural features such as topography and vegetation, thereby affecting the value of their properties. The administrative decision made the 7 The adininistrative decision includes Condition 2 far tentative plan approval requiring the applicant to submit an updated title report for the subject property to verify marketable title prior to final plat approval, and requiring all persons with an ownership interest in the property to sign the final plat. Elkai Management LLC A-04-1 (MC-03-13/SP-03-43) 13 following findings concerning this issue: "Stafffinds that there is no minimum amount of common area required as part of the approval for TP -96-857. * * * All but one of the proposed dwelling units and associated parking will be located in the area where the 86 units were originallyproposed This area was approved on the master plan for Seventh Mountain Go(' Village for lownhome units. The units will be virtually the same units as the other units under construction at the site at this lime. This will be the sixth and final phase of an *86 -unit townhome development. Staff has visited the site and believes that no significant views will be impacted by the minor reconfiguration of the proposed lots. This area was already approved for.up to 12 dwelling units, with one of the units moved through the approval of MC-02-6/SP-02-14/RP-02-1 by the County Hearings Officer in September of 2002. Views of the 18th hole at Widgi Creek will be affected, but these would have been affected regardless of the configuration of lots 1-11. The topography of the site goes from level at the eastern of the site, to a more sloped area on the western portion of the site. A few trees will need to be removed for the proposed units. Staff notes that many trees have already been removed to accommodate the existing dwelling units in Elkai Woods due to the previously dense cover of trees, similar to what is proposed under these current applications. The units are to hcrve earth tone colored exteriors which staff believes will relate harmoniously with the natural environment of trees and grasses, as well as the existing unit structures. * * * • The applicant will need to grade and excavate the areas for the buildings and driveways. The area for the entrance and loop roads that serve the proposed 86 units has already been perved. As indicated above, the ground is relatively level. Some of the existing trees will be preserved for landscaping on the site, as observed on the site visit conducted" Neither appellant nor the other opponents identified in what way these findings are not supported by substantial, credible evidence in the record or fail to adequately address the applicable tentative plan and site plan approval criteria. These parties also did not offer substantial, credible evidence rebutting the evidence submitted by the applicant. The Hearings Officer has reviewed the entire record and concludes these findings are supported by substantial evidence in the record. Therefore, I find the administrative decision did not err in approving the proposed tentative subdivision plan modification and site plan on the basis of these findings, Elkai Management LLC A-04-1 (MC-03-13/SP-03-43) 14 . DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby AFFIRMS the administrative decision on appeal SUBJECT TO [HE FOLLOWING CONDITIONS OF APPROVAL: Site Plan Condition of Approval 8 in the Findings and Decision is corrected to read as follows: The applicant/owner shall install an emergency fire access gate at the property line common to Widgi Creek and the Inn of the Seventh Mountain prior to issuance of any building permits for the units in Phase VI. The gate design shall require approval from the Bend Fire Department. 2. The following condition of approval shall be added to the tentative plan conditions of approval in the Findings and Decision: The applicant/owner shall submit a revised tentative plan showing the dwelling unit on Lot 11 redesigned so that it is physically attached to the dwelling unit on Lot 10. Dated this 4.1a-• day of April, 2004. Mailed this I 3 ----day of April, 2004. Karen H. Green, Hearings Officer THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED. Elkai Management LLC A-04-1 (MC-03-13/SP-03-43) 15 14 JOHN FOUGHT DESIGN GOLF COURSE ARCHITECTURE TEL: 480-991-9858 FAX: 480-991-5244 john@foughtdesign.com Safety Corridor for Golf Courses Unlike most other sports golf does not have a static playing field. Golf courses come in all types of shapes and are located on all typesproperty. Some courses are located in deserts, some in dense forests, some on hillsides and some in floodplains. During my golf career (including my playing days) which spans over fifty years I have traveled to six continents and have observed almost every type of golf course. But as a golf course architect I must be concerned about the safety element for the golf holes. This is as critical as any design feature that I may create. While safety is a major concern for golf architects there is no hard fast golf dimension which must be legally adhered to when designing a golf course. The reason is that there are many factors which influence the safety setbacks. These include elevation, tree cover, the amount of dogleg (turn) in a golf hole and so on. For example, a much wider setback is required on property above 3,000 feet above sea level because the golf ball will travel greater distances; meaning much farther off the intended line of play. I understand that Widgi is just shv of 4,000 which means the setback should be adjusted back about at least 20 feet All of these elements are factored in varying degrees when designing a golf course. The Urban Land Institute (ULI) has developed a guide entitled Golf Course Development and Real Estate which provides guidance for developers and golf course architects. I have attached the section of this guide which addresses the safety limits for the golf corridor. With some minor variation I have utilized the standards provided in this booklet for my practice of golf course design. Please note that these standards were printed 20 years ago and in mv opinion need to be somewhat expanded for the further distance that the modern golf ball is traveling. Standards Over my 26 years of practicing golf architecture it has been my experience that the minimum setback around the back tee should be 100 feet on all the sides. From this tee point a center line is drawn to a center point (or turn point) 750 to 900 feet of the hole and from this point the center line extends to the middle of the green (or second turn point on par fives). To locate the setbacks on the fairway areas I measure 500 lineal feet from the tee down the center line of the hole then locate a line perpendicular to the centerline 175 feet to each side of the boundary, unless it is another hole. The 175 feet is the minimum safety setback from any road, development or property boundary. This safety setback line is extended on a line parallel to hole direction the center of the green. It is also my opinion that a building setback (when developing real estate) of 40 feet be included outside the safety setback before a vertical structure is erected. There is a drawing of these standards in the ULI guide on page 6. Please note these are the MINIMUM setback standards as 1 often utilize a 200 foot setback from the centerline for the modern game. Other Factors As previously discussed there are other factors which should be considered when developing the golf course safety corridor. Some of these include mature trees cover, the relationship to sea level and elevation change on the individual hole. Another important element when determining the appropriate safety corridor is which side of the hole is being designed. The right side of all golf hole aenerally reauires sliahtiv more safety set back. The reason is that most aolfers are right handed and they more often miss their shot to the right. It is a proven fact that the right side of all golf holes is more dangerous so I always try and get a little more room for play on the side of the hole. There is no way to keep golf entirely safe from errant shots. No matter what the setback golfers find a way to miss shots in all directions. But I have found that it is very important that the golf course architect, the land planner and the developer work together to provide the safest environment possible. John Fought ASGCA WIDGI CREEK GOLF CLUE3 Safety Review - Hole #1 January 2015 Scale: = 100' (from aerial) JOHN 1-()I'Gr(1- „ . John Fought, ASGCA (American Society of Golf Course Architects) John Fought began his working career as professional golfer after winning the 1977 US Amateur. As a professional on the PGA Tour he was named "Rookie of the Year" in 1979 after winning back to back events. When injuries forced him to leave the Tour in 1987 he began a career in the field of golf course architecture. While John has worked all over North America on various types of projects he has been involved with more than 17 different golf projects in the Northwest. John's courses have won numerous awards including 'Best New Course' & 'Best New Renovation' by leading golf publications such as Golf Digest and Golfweek. His courses have also hosted 50+ national champions since 1996. John is a very experienced and detail oriented designer who has had a major impact on golf design in Oregon, Washington and British Columbia, Canada. Project Experience (Northwest): • Pumpkin Ridge (36 holes)' • Black Butte Ranch - Glaze Meadow • Sunriver Meadows • Langdon Farms' • Crosswater Golf Club' • The Reserve (South Course) • Tualatin Country Club' • Columbia Edgewater • Seattle Municipal Courses • Trophy Lake Golf Club • Washington National • Big Sky Golf Club • Centennial Golf Club Other National Projects: • Pine Needles, NC (Restoration of original Donald Ross Design) • The Gallery, AZ (36 holes) • Indian Wells Golf Resort (Players Course), CA • Rosedale Golf Club, Toronto (Restoration of original Donald Ross Design) Work Experience: 25 years Affiliations: ASGCA, PGA Tour (life member) Education: BS Accounting, Brigham Young, 1984 with Cupp Design the course's visual access. Princess Hotel in sdale, Arizona, illustrateg A typical diagram udfar analyzing real estate premiums. &wire: Desmond llisichead, Inc. Golf twci ronsage Gof Fair,wAy Frontage Open Space Golf /Ncceso interior Los ferred. This combination provides the preferred length for the golf course with moderate flexibility in operations and maintenance and maximum golf frontage for real estate development. Land use plans that are designed merely to maxunize golf frontage do not necessarily maximize overall real estate values. A number of other factors must be considered when integrating golf and real estate. The single -fairway, returning nines configuration for an 18 -hole golf course is ideal for maxi- mizing golf frontage and therefore maximizing the opportunity to en- hance real estate values. In some cases a hotel resort or high-density development, for example --where real estate values are enhanced by views of the golf course from a high- rise building rather than actual front- age, a core course might provide greater advantages. Whatever strategy is used to place a value on golf -oriented real estate, valuation must consider local market factors. Comparative marketability studies can aid in deterrnining real es- tate values and which pricing strate- gies yield the best results in a particu- lar location. Safety in the Golf Corridor One of the most significant factors to consider in delineating the golf corri- dor is safety. Like many sports, golf is not inherently safe. A well -hit golf ball can reach an initial velocity of 250 feet per second or over 170 miles per hour, and a range of 250 yards or more. The golf ball thus has the poten- tial for greater speed and range than a bullet from a shotg-un, and the poten- tial for injury can be considerable. This factor is augmented by the wide range of physical and psychological variables inherent in any golf course and the range of players' abilities. Coif is not easily mastered, and even the most accomplished players can hit a ball poorly. People have been seriously, even fatally, injured by errant golf balls, golf clubs, and golf cars. Being on a golf course during an electrical storm has resulted in many players' be- ing struck by lightning. And the du -cats are not confined to golfers: pedestri- 47 d .. d'd d This relationship between fairwro. and lot should be avoided, because most golfers are right-handed aild tend to slice the ball to the right. Source: Otwarkagiliuitibla. fac. -r , . ,. . d. . 'I The preferred relationship belay other rather than into houses. .11NiAlod, Itrdeddedo, 410e,RISie hiddy6d.di,,dvdt airway and lot allows holes to "slice^ Into each ons and motorists walking or driving by a course have been struck by errant .golf balls. Golf, like life, is a challenge with risks. Thus, safety is a critia concern to anyone invoked in the de- sign, development, construction, main- tenance, and operation of a golf course_ or to anyone charged with respensibil- ity for the safety of people on or near the course, or to anyone who c7oalt1 be injured or suffer damages from golf. l'o design a totally risk-free, 'safe" golf course is impassible, because nu- merous faetors simply are beyond the eornrol of the desigr.er: the climate, the weather, the ability and skill of in- divicnd players. Even if a list of safety criteria could he determined for the design of a totally "safe' golf ecur, the cost of building such a course Wild be proltibinve. It is possible, however. to anticipate a few factors 48 that taut present an undue hazard. And it is possible to find economically feasible ways to mitigate the danger. No hard and fast rules can be asso- ciated with aafety in gulf course *sign simply because the range of variables from course to course, hole to hale, and even player to player is so vast. The increasing integration of golf courses with adjacent real estate re- sults in ei.mflicts in land use, and Safety becomes a greater 1.00CATTI. To- day, al areas. of the golf course indus- try. including owners, developers, de- sign profesaionals. operations and maintenance person.nel, tnantigees, material suppliers, equipment nuittu- facturers, and individual players, must address it. Further, technical ad- vances in the de' -in oigErlf balls and golf clubs have translated into ,,reater speed and distances, with the anen- dant greater potential for danger from poorly bit balls or slices, hooks, arid shanks. All of these factors have influ- enced the way golf courses are designed today, and a prudent developer would keep the following points in mind: • Recognize and understand that land planning and the designof golf courses are intricately related to each other.The potential impact of one on the other can significantly enhance or diminish the value of a golf -oriented real estate development. • The deseloper or it$ agent is in- volved as a key member in plarning and design.The integration of vari- ous disciplines is ultimately the de- veloper's reTonsibility. • Regular safety reviews are part of the planning process.Additional re- views are required after any major change. Safety reviews should lie made part of standard operating procedures, and they should involve all members of the design tenni. • Recognize that safety is ongoing. In- clude allowances for fine-runing play of the course in the budget to address any unanticipated issues af- ter the course is put into play. "Golf C0111St safety"' is a relative term, requiring judgment based on some mutually agreed criteria. The fol- lowing brief overview summarizes a few basic, common-sense criteria for safety in designing golf COLINCS.1 The design standards developed from these criteria or from the consensus of experienced designers and develepers serve only as guidelines and nuts: he eihcdcase by case for specific sites. • Golfers must use reasonable core commensurate with the known haz- ards inherent in the game! • Golfers assume reasonable • ibe design of the kalif course should reflect standards that do not expose golfers to undue risk • The public has a right to free. and unmolested use of the highways. Golf halls landing on or across a highway render the owner liable fur maintaining a public: nuisance that resulted in inoiries from the hazard- ous, rondition.1 • A golf lull in flight beyond the perime- ter of the !;,.-1,1f enurse is the same as an object falling from a -Structure, and the liability is comparable.6 A pivotal standard eked in man!' court cases renders a liability if the possibility of an accident was clear to the ordinarily prudent date' • Colf-related restrictions on adjacent private property are justifiable for reasons or safety. It is th-erefore rea- sonable to restrict the trie of prieute property (building setback lines and so on) adjacent to a golf course. • Owners of houses and other real es- tate fronting a golf course assume more risk than the public&n a high- way but less risk than golfers. The homeowner's uninformed and un- suspecting guests art not included, however. • Spectators at a golf tournament as- stune more risk than homeowners but leas risk than golfers. Legal terms like 'reasonable care," "reasonable" or "undue' risk, "frre- seeable" hazard. and "ordileturily pru- dent eye' provide criteria for defiaing and judging safety and for allocating liability. Beyond these legal concepts, however, no measurable design stan- dards can be applied in a blanket for- mula that satisfies. legally defined -cri- teria for safety. The standard 300 -foot through - the -green width that became u rule of thumb in desii,rn of a single -fairway layout during the 1960s and 197fte is seriously outdated in terms or cureent safety concerns. It was rationalized by two concepts: • The average golfer who hit a ball poorly (did not follow the ideal path as reflected by the centerline) did not hir the hail as forcefully as pos- sible; dittrefore, the ball vaeild not travel aa faar and as iar as it might, • The farther away from the center line, the less force powering the ball, and therefore the ball will travel even less disrance. In the dauble-fairway latena, the rule of tiauttlp was than waere possible. the, [walk] centerline, should be no fewer than 200 feet apart. lhese dimen- sional standards WV new outdated, hoarver, with tiee ads eot of new tech- nology and new .designs for golf: equip- ment (parti(ularly e,cif clubs) to gale more distance and the desire of neatly golfers to 'Suutek the ball" ae far ea they can without regard for safety. Outdated 1970s sinee-falrway diandard& Coablegy-, Patric' Skim .1444gritt The standtud, of the 1960a and 1970.s were coupled with caveats to consider such factors as topography, vegetation, elevation, temperature, hu- midity, wind, location of hazard.. end elevated features; like tees and greens. They are still critical, bur safety u not a cookie -cutter process. Defininze pa- rameters for safety on a golf course could be a major issue confrontiog to- day's golf course developers. and &:1y member of the team could make a de- cision that would directly affect safety. Golf integrated with real estate devel- opment requires the establishment of a team to review every stage of plat- ning and deign. The temptation to encroach °lithe safety perimeter for the golf course to gain frontage for real estate, enhance real estate values, ur economize on the golf course is al- ways considerable. and it is height- ened by the fact that contemporary golf courses require substantially larger areas of land to accommedate safety in an age of high-tech equip- ment. Coll course architects and land planners must work aith the develnp- ment team to resolve the problems in- volved in siting a gulf course next to real estate. The professional expertise, knowledge, and experience of every member of the design teani nutet be applied toward ensuring that die pub Li t: is not exposed to undue risk. In a society prone to litigation, it is in fee best interests deny development pro- ject to establish the best standards and criteria for safety. Because design and construction often span long peri- od,: of time, the intent of t! design oral Seilery considerations develuped during du.: planning process.. should be tairefully documented to ensure that et is not Corry)ronliwd by1ater decisions. The Safety Perimeter Defining the safety corridor for a golf course is not necessarily synonymous with estabiishing the boundary of the golf course, although the two can he related. The following definirione ar used in this text. The golf coorse boundcuy is the legal description of the property boundary for that area of land dedicated to rhe golf course and its facilitit. If the operation were to be sokl, this legal description would be used to describe the property in the sales documenta. Thegaff course safety corridor is that area of land re- quired to play the game plus the arca of land that can be affected or threat- ened by golfing such that limits are plated on the use of that area. Fur ex- ample, the golf course safety corridor might include the area within the gulf course boundary phis an area around that boundary where construction rif any buildings is restricted (often called a building setback line or budd- ing restriction line). The restrictions on use within the setback area must be clearly stated in legal documents (covenants, for example) describing the affected properties. Largely becauee of legal implica- tions, professionals and their atten- dant organizations have been reluc- tant to adopt any specific written criteria for golf course safety corri- dors. The official approach of the Ameriean Soeiety of Colf Course Ar- chitects (ASC.Ck is verbal and very general, and strongly emphasizes she - specific criteria. The pnident course of aetion i$ to contract with an experi- enced, reputable golf course archival early during the planning proces,s. The following dimensions for the golf course safety corridor arc provided solely to illustrate this discussion; they are not to he applied arbitrarily. The dimensions are based on an tare- etrieted flat site, and the must be ad - to accommodate site-specifk features like tojaegraphy, vegetation, and elevation. Applicable local building and land use regulations could pre- clude the use of any dimension used in the illustratione and this informa- tion ie nut a suristitute for consult:Ili-on 49 ktoi'tm fcvcactavecn the greer 3rTzi She re4 fyirirrx711 Ck'icArtc.4 bettvrt'm EICI greCl. Vir,r!,%,rn dirrcrl'iliOnti 'krirgrJirW (IOW COre0Or. Vr,'Y j L:7 ir ',V$'346 V." for “-rd. --------- .11113101001.40 - irmideliarg rigalears si/4' ou ATI topocrophy. Other onadillunx clear'. .10 SP with a qualified. experienced golf course architect. • Minimum horizontal clearance be- tween the green and the next tee is 150 feet. If the adjacent green and tees are separated by a change in elevation, the distance might be greater or les.s. • Minimum clearance between adja- cem tees and greens is 150 feet. • Adjacent landing areas should be no les. h -an 200 to 250 feet apart (from centerline to centerline). • The centerline of a golf hole should be no less than 150 feet from anr road right-of-way or boundary. • The centerline of a golf hole should he no less than 175 feet from any boundary with adjacent develop- ment. A setback of no less than 35 feet from the boundary line should also be added. • The minimum safety corridor for a single -fairway course with develop- ment on both sides or the faint a'. is 420 feet between any building in the landing and green areas. The mini- mum safety corridor for a course with surrounding development in other than die landing and greens 4rea$ is 370 feet, which allowa for a 300 -foot corridorwith 35 -foot building setbacks on either side. • On a double -fairway course, the cen- terlines of parallel fairways should be no lesa, than 200 to 225 feet apart in wooded ares (where vegetation is present between the fairways) and no less than 250 feet apart in open areas (no buffering vegetation be - tater, fairways). Adding a mini- mum ur 150 feet from each center- line to the property line yields a minimum corridor of 500 to 55C feet for it double-rairway couNe. the course is surrounded by develop ment, a building setback of 35 feet from the properly line on either side yields a total minimum safety corri- dor of 570 IQ 020 feet. The safety corridor ran be narrower in the area between the green and the next tee— rfppeoaimately 4410 feet ta 100 -foot buffo all' the center point of the tee, 1,50 -foot minimum on the trreens centerline, and 150 feet between the green WO Zhu WV WW1 Safety on the Golf Course The responsibility of a golfer for the t of others, such as shouting ,rer to warn that a ball is apraromh- ing, is defined by rules of etiquette and enforced by golf associations, These rules and responsibilities should be posted in a readily visible location on the golf course. liantlooks specifi- cally ;,,Idart..ssing rules and responsibili- ties should also be made available every golfer and key points printed di- rectly on scorecards. Designing a safe golf course include; not only concern for the safety or player.s, but also fur guests, maintenance personnel., and spectators. Nfany design guidelines in- volve conunon sense: • Blind shots should be avoided, and holes should be designed so that players can clearly see the target area. hazards, and other players on the course. 'hie several mitigating measures to reduce the risk of blind shots have been developed—special flags, caddies as target indicators, and even truffle are at best only mitigating nseasures. A Shelter; should he provided at key' locatiotis an rhe course for golfers seeking safe shelter from inclemeut weather, particularly lightning, storms. • Specific safety guidelines and proce- dures regarding lightning storms should be req., dily visible to every golfer, eniployee, or visitor. • Circulation patients should be read- ily apparent and organized to mini- mize tainflicts between autos and pe- destrians, golf cars and pedestrians, maintenance vehicles or equipment and golfers, and golfers and non - golfers, for example. A golf course, for example, is not a safe or appro- priate place for a nature wr-alk wHe play is in progress. Security meas- ures should he in place to prevent intentional or unintentional toes- passit kg on the golf course by non - golfers while play is in progress. • Paths for golf ears sintild be specifi- cally engir.eenal as marls for vehicu- lar traffic, not sidewalks, bu Cry fact that the path is often a hard surface :usually asphalt or eon • crete!, shoit"d wgiven dux- consid- eration when localing, it. Such paths are potentially dangerous if a ball bounces or ricochets off the pave- ment, and for this reason it is inad- visable to have the car path cross the fairway. The path should be out of the area of play {sec further dis- cussion later in this chapter), • If spectator galleries are anticipated, the course's design should specifi- cally provide for them, Nleasures should be implemented to make the inherent risks of watching golf on the golf course readily apparent to the ordinarily prudent eye. • Buildings of any type should not be used as the obstach that forces a doleg hole, and the inside angle oT a dogleg hole should be treated as a hazardous zone,Obstac.les or barri- ers of sufficient height, density, and width should be located on the in - A. Ise 45 Um.). TrrnJpre';;; re.: side angle of the dogleg to prevent players from attempting to hit the ball across the inside ane. !lous- ing or any other buildings, play- grounds, recreational facilities, paths, or parking lots should never be located on the inside angle of a dogleg where injury or damage to property is possible! • Clear sightlines and visibility of play- ers on the course should be main- tained, particularly near landing areas and paths for golf car. • Signs, benches, tee markers, and other furnishings can cause a bail to ricoche, injuring people or damag- ing prop Their placement on the golf course and design should be -seriously considered and con - 'stand y reviewed for safety. 1-• (711- , V" or qreen. o ilazorda meant be considered az-1km devalopmeal :tar/vanity a dogleg hole. oad Ma; Pili‘._•rd. 51 • Trees should not be considered an ef- fective means of catching errant balls, particularly between the golf course and adjacent real estate development. Topography and Safety A sloped lie directly affects the dis- tance and direction a golf ball will fly. The more severe the slope, the greater the impact on the distance and direc- tion of the ball. Therefore, the design of a golf hole and its associated safety corridor must be adjusted to accom- modate the tendencies for balls to fly right, left, short, or long despite a golfer's best efforts. On long approach shots, the ball's trajectory tends to be low, and the ball tends to bounce and roll on impact un- less the golfer can put a backspin on the ball. If a long approach shot is cou- pled with a downhill lie, the ball tends to travel lower and farther than if the lie is flat. The inherent danger of over- shooting the target must be considered and the safety clearance between the green and the next tee or land use be- yond the green increased accordingly. On short approach shots, the ball's trajectory tends to be high and to bounce and roll little on impact. If a Additional Thoughts on Safety short approach shot is coupled with a downhill lie, the ball tends to fly lower and farther than for a flat lie. Again, the margin of safety must be increased. On side -sloping lies, the ball tends to fly left or right, depending on whether the ball is above or below, respectively, the golfer's feet. The mar- gin of safety between adjacent fair- ways and between the golf course and adjacent land uses must be increased and configured to accommodate the ball's flight pattern. Paths for Golf Cars The driving ability of golfers varies with the number of individuals play- ing golf, and it is virtually impossible to judge their ability to drive a golf car on appearance alone. Understanding the abilities, limitations, and tenden- cies of both vehicles and drivers pro- vides some basis for planning and de- signing safe paths for golf cars. Golfers tend to drive golf cars along the path of least resistance— along the most direct route to where the ball lands, whether paved or not— and sometimes the chosen route is not the safest route. The sensible guideline therefore is to align the path where Include an insurance underwriteras a member of the development team. The developer might wish to forge a link with the insurance company that will pro- vide public liability insurance for the golf course. While no substitute exists for safe design criteria, to the etent that risks are unavoidable, perhaps they can also be insurable. Having a representative of an insurance company imbed at the incep- tion increases the likelihood that appropriate coverage can be obtained. Input from the insurance company can shed light on safety criteria based on actual claims as well as information about costs for budgeting. It is important to select a repre- sentative who is actually involved in undenwiting and claims rather than a sales broker whose primary interest is a commission. Give thought during planning to defenses for negligence. Part of the application for a golf course adjacent to a public mad, for example, should point out the issue of errant golf balls and the built-in safety criteria to minimize this risk. After entitlements are received, a planning department's sign- ing off can be characterized as an impartial judgment of a safe design. Similarly, regarding the sale of houses adjoining a golf course, a part of the purchase agree- ment should be the acknowledgment of the proximity of the golf course and an as- sumption of the buyer's risk and/or waiver of claims. This type of provision can also be built into a community's covenants and restrictions, which attach to the title and bind succeeding owners. Publish rules and regulations governing conduct on the course. Consider prohibiting or limiting the consumption of alcoholic beverages on the course. Post signs prohibiting nonlicensed drivers from operating golf cars. 52 most golfers will find it convenient and to provide physical and regulatory means to encourage golfers to stay on the path. A majority of players are right-handed and tend to slice the bail (to the right), particularly off the first tee. Therefore, paths for golf cars should generally be angled to the right side of the fairway, where most golfers hit their shots. An exception occurs when the hole is designed to encourage play toward the left of the fairway— where a water hazard is located on the right side of the fairway, for example. In this case, aligning the path to the left side of the fairway would be more convenient. The National Colf Foun- dation suggests that the path be lo- cated at least 25 feet from the edge of the fairway, a compromise between keeping the path out of play but close enough for convenient use. The shared use of a path between two adjacent golf holes might appear to be an economical and more cost- efficient means of accommodating golf cars, but it is highly unadvisable. Shared use of a path presents a higher risk of unsafe conditions, and rarely does the shared path serve both holes with the same convenience for both golfers. If the path is not conveniently AIettgoIfers to potentially unsafe areas without admitting to an unsafe condition. For example, a sign might say "Reduce Speed—Downhill Grade" rather than 'Dan- gerous Grade" or "Snakes in Stream" rather than "Watch for Poisonous Snakes." Physical safety features am generally more effective than cautionarysigns alone. Speed bumps or tedured rumble strips should be considered where control of golf cars' speed is needed. On long downhill grades, safety features like "turnouts" for runaway golf cars should be considered, similar to gravel turnouts for runaway tractor -trailers on long downhill grades. The factory's safety criteria and performance specifications for golf cars should be considered during design of the course. tf a manufacturer has published safety guidelines for the operation of its product, then the design team should consider them during design. Safety should be an integral part of employee training programs. Employees should be required to attend regular meetings on safety policies and practices. They should provide written acknowledgment that they understand all policies, procedures, and rules, including wearing hard hats on the course, who is permitted to handle chemicals, and the procedures for handling them. Scwrce:John B. Miles, McDermott, Will & Emery, Newport Beach, Califomia. located, golfers tiif not use it and the purpose of shared paths is defeated. From the standpoint of safety•. rwn- i and horizontal aligrunents should be based on the vehicle's physical capabili- ties to maintain controlled speed and dire -(jun of trawl. The path should be intentionally designed to assist drims in maintaining control over the veha le. tegud fess of their skill in operating k. For example: • Chocks (tote vertical alignment) should not be so steep as to cause the vehicle to slip backward whir going uphill or to attain uncon- trolled speed while gyring dvnrthill. • I im izrnttal curves should be gentle and sweeping rather than sharp and abrupt to maintain conttoi around turves. • The path should include no abrupt dips ar buntps that might cause the driver to lose control; gradest should be carefully engineered. • Curves at the begnning. end, or mid- dle arm incline should he to help the driver maintain control. • Pavement an the path should be crowned or sloped fur proper drain- age, as excess water on the ittrface can cause the driver to lave control. Design of a safe path fur paean requires that the path be engineers1 and designed fur viehicufar travel, just like toad; for automobiles. consider- ing such factors as: • The vehicle's physical capabilities (toning radius, speed, braking dta- rance, et cetera): • Design speed (maximum d•••ired ve- hicle speed); • Friction (ability of der .surfact to hued the vehicle in place): • Centrifugal forte (rhe "endemic) of a vehicle to leave a path on a curse): • Sigh &stance and average ere bight: • Crarle (percentage of slope): • alinitnum safe radius for curves; • Bate of uttperekev goner of curve; (the banking curer to help hold the vehicle to the pavement); • Maximum safe elope; • Maximum safe length of a _Joh .: • Minimum safe sight distarax; aid • Minimum width of the recovery ars (art unobstructed, relatively- even area nest to the pwveinent that firm irks an opportunity to bring an out - of -control vehicle back onto the pavement). Typical paths are constructed o' a hard surface like concrete or asphalt. but the hard surface also presents safety hazards from bulb ricochetkg off the pavement. Other pavement ma- terials might present ksa risk but have other consequence./ in terms aeon and maintenance. Such adtetuatives in - dude loose materials lice gravel, stone dust, or grossed shells For p.th s and open -celled paving units or geotexoles designed to support vehicular traffic that permit grass to grow as part of the pavement surface. Special attention must be aiv1en a the routing of foot traffic and golf cars on slopes. Slopes one prone to wear and tear and to rmsism, and the probkcas and conflicts with safety increase with severity a( the slope. Generally, gently ramped paths should be provided bar both golf cars and foot traffic in steep areas. Centk switchback can be used to provide adequate horizontal distance to negotiate tae vertical change in ele- vation. A sufficient turning radius and keeling or grading at regular intervals must be provided to help maintain the gulf car's speed and direction of travel. intended versus Perceived Line et Play The centerline of a golf course is not an engineered. find Gee. and no white line is painted &ran the middle of the (airs ay. The centerline is one of several ideal flight lines, or the im an of several flight liter of an ideally struck gulf ball responding to the challenge cis par ieu- har hole The challenge might irdu.-ie forced carries orMar water, an unplayabk rough, bunkers. mets, and other vegge- Karior, The golf Cowie ardritrct mast take iuco account ail the iinnplicaticns of these elements and others that might affect golfer.' responses. For a golfer, the ideal line of pity is Largely a p,y- chohogical perception.. and the player's perception of the line of pLty is highly vulnerable to change, with its signifi- cant implications for :safety. Seemingly tztutor operational prosxdure . surra a.• the pu+itiun of tee markers or the nsaw- itb pattern of the turf. can drnmaii• caddy affect a golfers perception of a hole and how he or she decides to ad- dress the challenge. A major change to the course, such as expansion of a storm - water retention pond toward an aerie - cent fairway. also affects the perceived centerline of ply- Whenever the de- sign of a hook is changed. the resulting impact on safety most be toughy On- going re iewa of safety should be an in- tegral pan of every phase of planning, design, construction, and operation. Other Safely Issues The range of safety issues of concern to any type of real estate develop - me rat --with or without golf—includes compliance with all federal. state, and local regulations covering employees, safety. buikfing coke, eaavirnnmenraI prcxeetim regulations. and the like. Some of them involve design, others operational and management policies and procedures, Dangerous condiric•ns can be the rrsult of oversight, igno- rance, negligence. or chxoke. The restriction of nongolfing and unauthorized uses of a golf course can still Surd a develops. liable for untoward events. The attractire nuisance of a large pond on a hot day can invite swim- mers, and the slopes of that pond's banks should anticipate the possibility oda ch ilitf attempting to wade into the pond. Another potential exposure to- abliity is the "Central—Park-at-night syttdrronic? in which the operator of a golf course was found responsible for not warning golfers in a remote loca- tion that 'naggers might be an addi- ti nal hazard during off-peak hours. In- appropriate aaetsa and abuse Burin construciion and when a course is in op - erasion are aha-ays of concern. While tntnpromising safety might have arnrie shun -tens 'benefits,'' such as reduced cats or increased develop- able real estate. it is without question an unacceptable approach to rripomi- ble design. The benefits are usually illusory and the results often counter- productive. The burden is on the devel- oper and the tram to ensure butt tot suite Condition -1 are created. The start- ing plias is to lac aaare of die potential problems and to ari•lrem the bsue ef- fectively during planning and design. 53 15 Michael McGean 3m: �n To: Cc: Subject: Attachments: Peterk8..Hanis [phorris@purs.00m] Wednesday, January 14, 2015 4A6 PM Tony Lord; Barbara Munster; jetpace@bendca; Michael McGean; Carl Stromquist Tom Gilmer; Dawn Patience; Darin Parr; Randy Bauman Re: VVidgi Creek Golf course - #1 fairway- proposed development on right side (9 townhouse units) Steidel golfcourse architect'safety standards nkatch_0144'2O15.pdf Steidel golf oounea,chitect- Evazyoue, z have been working with a golf course architect in Washington state, John Steidel, who is familiar with the Widgi Creek course, worked many years ago with Robert Muir Graves and has been very helpful. John is a professional and a member of the American Society of Golf Course Architects (the Society is headquartered in Brookfield, Wisconsin). 1 presented John with the alrailabl= aerial photos, site plan of the proposed 9 units, sketches we had of the #1 golf hole, approximate measurements that had we had taken from our estimated fairway centerline,with perpendicular measurements to the edge of the road (Seventh Mountain Dr., the entry road into the Widgi Creek development from Century Dr.). The measurements that the Widgi owners have roughly come up with, are: at the shortest distance about 61 feet from the centerline to the nearest rear deck structure (where `umaoo could occupy) and at the longest distance about 130 feet from the centerline to the .`oazeot rear deck structure. My understanding is these measurements were made to the rear deck structures (proposed building locations) - AND NOT to the rear property lines. What we DO NOT YET HAVE are the measurements "down the centerline" from the various teeboxes (gold, white, blue and black) where the 2 perpendicular measurements were takeu' That is, is it 25, 50, 100 yards, or ?? yards from the white tee where the perpendicular distance is 61 feet to the proposed rear deck? And, is is 100, 125, 150 yards, or ?? yards from the white tee where the perpendicular distance is 130 feet? I also advised John that it was our understanding that 16 trees would be cut down to make room for these proposed 9 townhouses. John Steidel was of the opinion that further study was required, re: a sketch or drawing with the proposed 9 townhouses building locations sited on an aerial or scale plan of the #1 fairway, with the centerline measured and drawn in and several perpendicular measurements taken (and drawn in) from the centerline to: (1) the rear property lines and (2) to where the rear decks would be built and (3) to where the rear walls of the townhouses are proposed to be constructed. ° In addition, this combined drawing should include placement of the remaining tree locations (after the proposed removal of the 16 trees) on the right side of the #1 hole, in relation to the 9 units and the golf course rough and fairway' There are also prevailing winds from the West, which will further push sliced golf balls (for a right-handed golfer) towards the right side of the fairway and probably into the areas where the 9 units are proposed to be constructed. In addition, the most regular mishit golf shot for a right-handed player is a slice (with the golf ball curving from left to right off the teebov). A golfer is at his/her most likely time to hit a slice, on the first hole, when the golfer's swing is not yet performing at its optimum level. John has provided the attached current (01/12/15) sketch of Golf Course/Residential Development Safety Standards, in his opinion, for Bend, OR. As you can see, the z approximate minimum distance from the fairway centerline is 180 feet to the golf course property line (OB - out-of-bounds), at 200 yards and 300 yards distance from the teebos' By extrapolation, at 100 yards distance from the teebox, the minimum distance is 135 feet 'om the fairway centerline to the golf course property line (OB - uut-of-buuudo)' xthermore, an additional 15-30 feet is recommended as an additional safety setback, to all buildings, play areas, patios and decks. In essence, John Steidel is of the opinion that a safety setback should be a total minimum of about 165 - 210 lineal feet from the fairway centerline to the closest rear decks (depending on the distance down the fairway from the teebox: 100-200-300 yards). If 61 feet and 130 feet (as our owners have measured) is reasonably accurate to the actual distances from the fairway centerline to the nearest rear decks of these 9 units, the DEVELOPER IS NOT EVEN CLOSE TO MEETING THE MINIMUM SAFETY STANDARDS AS RECOMMENDED BY A PROFESSIONAL GOLF COURSE ARCHITECT. John Seidel said one of the most difficult and dangerous aspects of housing development is to try to add, design and build new housing units into a golf course that has been designed many years ago (with the established golf holes, out-of-bounds areas, safety zones, and established housing improvements) - before the advent of the significant technical improvements in golf clubs and golf balls, that result in the golf ball carrying in the air further than ever before' At the very least, John was of the opinion that this proposed 9 unit development needed much further in-depth study re: the safety aspects, in relation to golfers playing the #1 hole and the apparent very close proximity of the 9 units. John Steidel is available for further discussion, research, or a more detailed opinion, on the issues - at this time or in the future. Peter Harris _lkai Woods Fractional Homeowners Association board member (619-997-6080) 2 Note: Safety Outline and dimensions shown are the recommended minimum distances from a Fairway Centerline to a golf course property line (OB) or the near edge of fairway on an adjacent golf hole. An additional 15 to 30setback from this line is recommended to all buildings, play areas, patios and decks. 300 Yeirda 1 80 f et \\1 .180 feet FAIRWAY CENTER' 1 1 ,2CDCD Year0g3 1 80 feet 1 80 feet Golf Course / Residential Development \ SafetyStandards FOR BEND, OREGON GOLF COURSE DESIGN REMODELING CONSULTATION IRRIGATION DESIGN SITE PLANNING P.O. BOX 6568 KENNEWICK, WA 99336 (509) 562.6706 FAX: (509) 562.6303 Scale:V-1OG' Date: 1/12/15 5. Distances to Road Fairway One Townhouses 16 , ;:k..,'..,,...'''':.',),,:'.,:',.„ .„„,. 1.3 4Rk 5,x..1, .1 Welcome to Widgi Creek Golf Club, one of Central Oregon's finest golfing experiences. Tucked amongst the tall Ponderosa Pines, you will find that the narrow fairways and undulating greens of Widgi Creek will provide you with a very enjoyable round of golf We hope that your experience at Widgi Creek is a pleasant one. Should you have any questions or need any 4ssistance, please locate a Widgi Creek employee and they will lae'more than happy to help you. rn, thank you for choosing Widgi Creek and we forward CO seeing you again very soon. -The Staff of Widgi Creek Golf Club- toarkcry :to center green, center of the green. CrRwsus carts shall notite inied without proper assignment. and stration in the Pria Shop. operator of aOf cart must be at least sixteen ycars bas,c a valid automobile driver% licenw. uv golf cart paths where provided, especially near tet, and greens, Carts are required to remain on can paths on all par 1 boles. Oti not drive in front of cart signs and white line located 30 feet from greens and tees. Two ridcrs per golf cart. 'Cars must be returned to golf shop by dusk. RI At,s • Play is governed by USGA Rules of Golf except where modified by local rules. 'Replace divots, rake sand traps, repair ball and spikc marks on green. The golf ranger has full authority on the golf course to maintain rules and speed of play for everyone's enjoyment. . All water hazards shall be played as lateral water hazards. Out of bounds consists of any inside roads and white stakes surrounding the outer perimeter. ?t,), r (,!4 • In order to keep play moving at a reasonable pace we have established a "time par" for each hole. This schedule is based on the USGA's Pace of Play Rating System which calls for a round of four hours and eight minutes. Pace of play time clocks are located at every tee to help you effectively keep pace. • When play of a hole is completed, leave the green promptly and proceed to the next tee without delay. Do the scoring for the completed hole while the others in your group are playing from the next tee. • Observe proper dress code. Phorography by: Vantage Point Photography Gig Harbor, WA Slight dogleg left. Tee shot should favor the right side of the fairway to open up your approach shot. TEE 13 C D 1 240 257 266 298 2 216 233 242 274 3 193 210 219 251 0%4 1'-) ; par A, YARDAGE $343 •319 0296 E,,.—J267 HANDICAP Li 11 11 H 111,t,:•t0.940n,n4-A,kaltro,,,,11,4, Ulf�.4� oL5£i n W • • 0 tO U Si 4 333 fi. 88818$8i8888$888888818888188888888 aria=rxm=zazt gKcrnq> c � w, -«n.. �•. o.9xa� x2siaRpEC, ,4454* P0,4r 1001*40 Cr tar ]00I (UW WOOS 71:200p4 3 4. 10U0 1/43.0 * no WIN 41222.0 502251 Y..1007 4004 INC R .434.. 0104* ELKAI WOODS TO WNHOMES PHASE III LOCATED IN THE EAST ONE-HALF OF SECTION 2.2, T7BS, R11E, W. AL, DESCHUTES COUNTY, OREGON 0• APs 040'14 Y-0040 we". 122253 w A. O• PER 0.04 00050040 410.241, 04*2510.. - 000220.6 040 0 a m240w 6 7041f4 5441 11 tr.. 11074!1 wao44. OKCOA 0..12 2622442 J2. 1004 C5/3570 es• 3Tn • SCALE : 11270' REFERENCE SURVEYS {4N- 060140.07 C54K1. Scaonak.. 0000622 AW za 2. s4at(7 EY.4tut wow ..44/44112. rim (42)- C's/ 2445- 40414* Or 142.11 P4q 10004.3 4 *4* car 4,c 51442000 .0411 in= 440 4 11.11 ' i4st- tS( 0h T- 4..10. 404.L4. 00,( *JAM 071010 C.w4W. 4400 s2Pi04(5 34 Ira (147- CS/ Jaw- RAT Of RX4 40.01 7004i0,4s 404 0 Or RMC* ...tr. a01D A04W0. II 3441. (511- Cc2 14300- RA* R 04X4 *405 O*50041 JYM0 2. 07 s0yt 444(T. RID yea A IRl. LEGEND .14444.. NYSE 4001 APO • • .4.0 445044 IMO 0414+* C• MAIM IO 414 04) wags. a0+0 O. -Ma. W Woe 1b 2.222.ae M 444.0, 004*0N41440 PLAT _/- 4ARA4 PONT 10. 7/5' +.(7 11204 PLASTIC CAP 4A 7140• PER (R4) GEODETIC TrF arms /SW. 4a. 401!4 N4 AMMO= IV 4'SHEET 3 OF 4 0112030] 8 Board of Property Tax Appeals REAL PROPERTY PETITION for Deschutes County • Read all instructions carefully before completing this form. • Please print or type the requested information on both sides of this petition. • Complete one petition form for each account you are appealing. • Return your completed petition(s) to the address shown on the back. • Please attach a copy of your tax statement. YEAR: 2012 ACCOUNT: TIONER: L. .._LM LLC BARRY HELM 18707 SW CENTURY DR BEND, OR 97702 PROPERTY SITUS: PROPERTY CLASS: 831 ASSESSOR'S VALUES Land Buildings. machinery. etc... Manufactured structure TOTAL PETITIONER'S VALUES Land Buildinas. machinery. etc... Manufactured structure TOTAL, For Official Use Only Petition Number and Date Received '12DEC18 3:03PM CLERK BOARD OF PROPERTY TAX APPEALS PETITION SUMMARY 197678 CODE AREA: 1003 MAP & TAXLOT: 181122DA-01600 PETITION #: 12-232 03119/2013 2:15 PM REPRESENTATIVE: BRYANT,NEIL R/GREEN,JEREMY M 591 SW MILL VIEW WAY BEND, OR 97702 ACRES: 2 SQ FOOTAGE: APPRAISER'S RECOMMENDATION Bulldinas. machinent. etc... Manufactured structure TOTAL RMV AV SAV MSAV MAV EXCEPTION RATIO EXC 165,140 165,140 0 0 62,270 0 0 379,250 379,250 0 0 568,710 0 0 544,390 544,390 0 0 630,980 RMV 88,000 100,000 188,000 AV SAV MSAV MAV EXCEPTION RATIO EXC RMV AV SAV MSAV MAV EXCEPTION RATIO EXC 88,000 88,000 0 0 62,270 0 0 100,000 100,000 0 0 568,710 0 0 188,000 188,000 0 0 630,980 RECOMMENDATION NOTES: Recommend a reduction to Real Market Value based on market evidence provided within the Bratton Appraisal provided by petitioner. COMMENTS: 0 Land 29 Buildings, machinery, etc. 30 Manufactured structure 31 Total RMV Real Market Value (RMV) from tax statement or assessor's records $ RMV Requested 165,140 $ 88,000 379,250 $ 100,000 544,390 $ 188,000 Most property is not specially assessed. Please read the instructions to see if this section applies to your property. SAV from assessor's records SAV Requested 32 Total SAV of Specially Assessed Portion $ $ Assessed Value (AV) AV Requested from tax statement or assessor's records (AV is limited to the calculation allowed by law) 33 Total Assessed Value (AV) —0. $ 544,390 $ Evidence of Property Value Attach documentation such as copies of recently recorded deeds, listings, appraisals (attach complete report), construction bids, etc. 34 Why do you think the value of your property Is Incorrect? (Answer the question in the space provided or by attaching additional pages. Pro- vide enough information to support the value(s) you are requesting. Be specific.) See the attached Exhibit A. 35 Did you purchase the property within the past three years? ❑ Yes ® No If yes, complete the following: Date purchased: Purchase Price: Did you purchase the property through a real estate office? ❑ Yes ❑ No Name of real estate office: 36 Have you sold or attempted to sell your property within the past three years? ElYes ® No If yes, complete the following: Sales / Asking price: Date sold or dates offered for sale: Was the property listed with a real estate office? ❑ Yes ❑ No Name of real estate ofirA• 37 Has your property been appraised within the past three years? ® Yes ❑ No If yes, complete the following: Appraised value $188,000 Date of appraisal: as of January 1, 2012 Purpose of appraisal. Tax Assessment Appeal Name of appraiser. Bratton Appraisal Group, LLC 38 Have you made any changes to your property within the past three years? ❑ Yes ® No If yes, complete the following: Changes made. Dates of construction: Cost of new construction: Declar 39 Sig X Sign na. I declare under the penalties for false swearing [ORS 305.990(4)) that I have examined this document, and to the best of my knowledge, it is true orrect, and complete. name of p tttloner representative (attach authorization it necessary) Neil R. Bryant/Jeremy M. Green Print or type name 40 Date 12/18/2012 en nd where to file your petition Please return this petition to: Your pe ' ' e n must be postmarked or delivered by December 31. If December 31 falls on a weekend or holiday, the filing - date moves to the next business day. File your petition with the county Berk in the county where the property Is located. Do not file your petition with the county assessor. Mail or deliver your petition to the address shown in the box. 150-310-063 (Rev. 09-11) BEFORE THE DESCHUTES COUNTY BOARD OF PROPERTY TAX APPEALS REAL PROPERTY ORDER In ane Matter of the Petition of BHELM LLC c/o: BRYANT,NEIL R/GREEN,JEREMY M 591 SW MILL VIEW WAY BEND, OR 97702 Petition No. 12-232 Account No. 197678 The board of property tax appeals for the County of Deschutes, Oregon, having duly convened on the 4th day of February, 2013; and The board, having duly considered the petition of the above-named petitioner, finds the values on the tax roll of the property described above to be sustained or reduced by the board as follows: Real Market Value Found by Assessor: Land 165,140 Real Market Value Found by Board: Land Structures, etc. 379,250 Structures, etc. MS MS Total 544,390 Total Real Market Value of Exception Real Market Value of Exception Found by Assessor: Found by Board: Land 0 Land tructures, etc. 0 Structures, etc. 0/lS MS Total 0 Total Maximum Assessed Value Found by Assessor: Total Assessed Value Found by Assessor: Total 88,000 100,000 188,000 0 0 0 Maximum Assessed Value Found by Board: 630,980 Total 630,980 Assessed Value Found by Board: 544,390 Total 188,000 NOW, THEREFORE, the board hereby orders the officer in charge of the roll to sustain or reduce the tax roll of Deschutes County for the tax year 2012-2013 in conformance with this order. Done at Deschutes County, Oregon this 19th day of March, 2013. A•}=-' •hts -- see attached. /1 ivered (date) 3- 0 3 by I3A) J-303-055-9 (Rev. 09-07) BOARD OF PROPERTY TAX APPEA County )ESCHUTES Petitioners Name BHELM LLC Petitioner Qualifieto Appeal As Owner ElOther Person with Interest in Property Petitioners Representative 8RYANT.NE|LR/GREEN.JEREMYM Street Address to Send Notice 1 Order 5O1SVVMILL VIEW WAY City, State, ZIP Code BEND, OR 97702 APPEAL OF VALUE Value Under Appea Action on Value RMV []MAV []AV �lSAV []MSAV ['Sustain E]Sustain [lSustain EiSuotain ['Sustain ['Reduce []Reduce Reduce 11 Reduce FlReduce Present at the Hearing Chairman B. Chase Osbome Board Member David Lilley Board Member Tom Bourdage Clerk Beckey Nelson Board Appraiser Assessor's Representative Sharra Tisiot Petitioner Petitioner's Representative Jeremy Green Dioousaion-ReferenmshnEvidnnuaPreoenbod: Confidential DYes No Tape Referenc,e Petition No. S HEARING RECORD --—'----- — --��muou—^ Date Worksheet Completed —~ LJvvvxxou��vmp/u�u 0� Stipulation Board Convened Stipulation Filed At orAfter Time Board Corwened Hearing Required 0Yen Daie Petition Received Defective [1Yes Defective Notice Date Hearing Notice Date Hearing Date Decision Date [lNn 12/18/2012 ONo O207/2O13 03/1Q/2O13 03/19/2013 APPEAL OF PENALTY Action Taken by Board D Sustain Date Corrected Petition Received Board No. Assessor's Account No, Property ClassDate Order Signed Date Order Mailed or Delivered Person that Maileor Delryered Order bate Copy lo Aisesa& Dok 12' 32 1 197678 831 03/19/2013 Date Copto Tax Collector 03/19/2013 03/19/2013 DISMISSAL Reason for Dismissal El Defective 0 Late Filed Vaiun--ueunedHi her I-1prEqual toRoll Value LI Lack 0! Jurisdiction 0 Withdrawn Motion X Second X wm«�" Members' Votes DYeu FlNn DYes |lNn m - Brad Hudspeth, - Dana Bra on ATT(.)N MI A Si 1 GROUP LLC EXPERTS IN REAL ESTATE ANALYSIS 25 NW Hawthorne Ave. Bend, Oregon 97701 465 NW Elm Ave., Ste 103 Redmond, Oregon 97756 Dana Bratton, MAI Mike Caba, MAI Jeremy Cowan C1 Gabert Nancy Gabert, SRA Gregory Jones Donald Montagner Michele Paynt Deborah Schluter Susan Smith Marie -France Woods Jones Bend 541389.2233 fax: 541.389.6677 Redmond: 541.548.2233 fax 541.548.8206 www.brattonappraisal.com December 10, 2012 Neil Bryant, Attorney -at -Law Bryant, Lovlien & Jarvis 591 SW Mill View Way Bend, Oregon 97702 RE: Valuation of the Widgi Creek Clubhouse/Pool House and Site Improvements Located on Seventh Mtn. Drive, Widgi Creek, Bend, OR 97702 Dear Mr. Bryant: Enclosed is the summary appraisal report completed in an effort to estimate a current market value for a 1.60 acre tract of land that is identified as common space within the Widgi Creek Master Plan. This property is improved with the clubhouse/pool house and swim pool site improvements and is located within a residential district of Widgi Creek, a destination resort approximately five miles southwest of the community of Bend. The purpose of this appraisal is to assist the clients with an independent third party opinion of value for presentation to the Deschutes County Assessor's staff and Deschutes County Board of Property Tax Appeals in an effort to reduce the Deschutes County Assessor's real market value estimate (RMV) for taxing purposes. All market research and the market value estimate has been based on factors in place on January 1, 2012. This appraisal has been written to conform with the Unifonn Standards of Professional Appraisal Practice (USPAP) set forth by the Appraisal Foundation and adopted by the State of Oregon. All typical approaches to value have been analyzed and data used in the appraisal process is summarized within this document. The subject property has been described as a 1.60 acre tract of land that is zoned WCR (Widgi Creek Residential) and located within the Widgi Creek Destination Resort. The Widgi Creek Master Plan identifies this property as open space and it can be used for recreational purposes or general open space, improving the livability of lot/home owners within the destination resort. All improvements are believed to be in place near the end of their economic life and the highest and best use of thc property is for the removal of improvements and return of the site to open space with native vegetation. As a result of no conversion options, the improvements offer a contributory salvage value, Nell Bryant, Attorney -at -Law Bryant, Lovlien & Jarvis Page 2 December \O'2Ol2 All factors believed to have an impact on the market value of the property have been identified and discussed. It is my opinion that the retrospective market value of this property, in light of factors in effect on January 1, 2012, was One Hundred Eighty -Eight Thousand Dollars ($l88,0O0). Maps and photographs of the subject property have been included in this report to assist the reader of this document in visualizing the property valued. Thank you for the opportunity to beo[service. Sincerely, IN ana L. Bratton, MAI, S State CmrtifiudGeneral Appraise IMPORTANT FACTS AND CONCLUSIONS CLIENTS OF REPORT PROPERTY LOCATION ASSESSOR'S ID # OWNER OF RECORD LAND AREA IMPROVEMENTS ZONING HIGHEST AND BEST USE VALUE CONCLUSION DATE OF VALUE ESTATE VALUED TYPE OF DOCUMENT APPRAISER Neil R. Bryant, Attorney -at -Law, bryant@bljlawyers.com Widgi Creek Community Building/Pool House and site improvements, Seventh Mtn. Drive, Widgi Creek, Bend, OR 18 11 22DA - tax lot 1600 (account #197678) BHELM LLC 1.60 acres A 3,548 square foot clubhouse/pool house building and site improvements that include an open air swim pool, site built spas, fencing, asphalt pavement, and landscaping. All improvements are believed to be in place near the end of their economic life. WCR (Widgi Creek Residential) within the Widgi Creek Destination Resort. The Widgi Creek Master Plan identifies the subject property as open space. Common area used for recreational amenities and/or open space for the enjoyment of the homeowners within the Widgi Creek Destination Resort $188,000 January I, 2012 Fee Simple Estate Summary Appraisal Report Dana L. Bratton, MAI, SRA State Certified General Appraiser #C-000021 (Exp. 3/31/13) Bratton Appraisal Group LLC 25 NW Hawthorne Avenue, Bend, OR 97701 \I1 ON PRELIMINARY DATA PROPERTY LOCATION 1.60 acres of land within the Widgi Creek Destination Resort that is zoned WCR (Widgi Creek Residential) and improved with a 3,548 square foot conference room/pool building, a 30' x 60' open air swim pool, asphalt paved parking areas, landscaped areas, and fencing. This property is located at the southeast corner of the intersection of Seventh Mountain Drive and Elkai Woods Drive, Widgi Creek, Bend, Oregon. LEGAL DESCRIPTION Common Tract #18, WIDGI CREEK MASTER PLAN. Also identified as Deschutes County Assessor's map #18 11 22DA - tax lot 1600. A reduced copy of the Assessor's tax map highlighting the location and configuration of this common area tract is presented below: BendC12S: SeventhMtnDriveWidgiCreekCIAO 1 o PURPOSE AND INTENDED USE OF THE APPRAISAL The purpose of this appraisal is to estimate the retrospective market value of the fee simple estate of the subject property, in light of factors in effect on January 1, 2012. The intended use of this report is to submit an independent third party opinion of value to the Deschutes County Assessor's office and Deschutes County Board of Property Tax Appeals in an effort to adjust the Assessor's real market value (RMV) and taxable assessed value (AV) for the 2012-2013 tax year. CLIENT AND INTENDED USER OF THIS REPORT This report has been written at the specific request of Neil R. Bryant, Attorney -at -Law, Bryant, Lovlien & Jarvis, 591 SW Mill View Way, Bend, Oregon 97702. It is my understanding that Mr. Bryant will review this document and submit it to the Deschutes County Assessor's office in conjunction with the tax appeal. A secondary client is Brad Hudspeth, General Manager with Widgi Creek Golf Club, 18707 SW Century Drive, Bend, Oregon 97702. PRIOR SERVICES DISCLOSURE Prior to accepting this appraisal assignrnent, the client was informed that Dana L. Bratton, MAI or employees of Bratton Appraisal Group LLC have not provided appraisal services on the subject property within the past 36 months. This statement is a requirement of the Uniform Standards of Professional Appraisal Practice (USPAP). BendC1 2S: SevendiMinDrive_WidgiCreekClubPoolHause 2 SCOPE OF WORK The following steps were undertaken in arriving at a final estimate of value: 1. The Degree to Which the Property Was Inspected or Identified - On November 30, 2012, Dana L. Bratton, MAI, State Certified Appraiser #C-000021 (expires 3/13) personally inspected the subject property. The exterior of the clubhouse/pool house building and all site improvements was viewed. Interior features were viewed through exterior windows only. Subsequent to the property viewing, I interviewed Brad Hudspeth, General Manager for Widgi Creek Golf Club, in regard to the ongoing management and maintenance of the improvements. During this interview, I discovered that the facility has been locked for over one year and is no longer considered to be a recreational amenity to various Homeowner's Association groups operating within Widgi Creek. After completing this conversation, I interviewed Tia Lewis (541.749.4044), a private land use planner who is knowledgeable of the Widgi Creek Resort Community. Ms. Lewis stated that this property is designated as open space on the Widgi Creek Master Plan and stated that recreational uses are allowed on open space properties as per private use restrictions associated within the Master Plan for Widgi Creek. Ms. Lewis went on to state that the conversion of the clubhouse/pool house to a private residence is not allowed due to use restrictions within the covenants, conditions and restrictions (CC&R's) of Widgi Creek. Ms. Lewis stated that any alternative private use would require a change in the Master Plan and approval vote from the Deschutes County Commissioners, Deschutes County Planning Department, and Homeowner's Associations operating in Widgi Creek. All representatives for Widgi Creek have stated that the improvements are not being maintained and are not considered to be a needed recreational amenity by Homeowner's Associations. It is my opinion that this building and swim pool was constructed during the early visionary stage of Widgi Creek in an effort to encourage lot/home sales. Now that the destination resort is mature, it appears that all parties agree that the improvements are no longer needed. The reader of this document will note that within the Highest and Best Use section of the appraisal, I have suggested that the BendC 1 2S: Se venth Mtn Drive_Wid giCreekClu bPoolH owe property owner remove all improvements and return the site to open landscaped areas. 2. The Extent of Research into Physical or Economic Factors That Could Affect the Property - I have viewed the Widgi Creek community and neighborhood data to determine recent trends for development and property values. I have completed a number of appraisals in this destination resort over the past several years and am knowledgeable of the general state of the local real estate marketplace. 3. Extent of Data Research - A Highest and Best Use Analysis has been developed and I have determined that the improvements are nearing the end of their economic life for this property. The highest and best use of the property is to remove the improvements and return the property to open space native landscaped areas. Similar improvements located within the community of Sunriver (old pool building/swim pool) and Broken Top (old sales office) have been removed or converted to alternative uses. The subject property has no known conversion options that would improve its financial feasibility. The highest and best of the property is believed to be as open space that could be used for recreational purposes and general open space that benefits Widgi Creek homeowners. The subject property is considered to have equal value to similarly zoned land that is used to develop access roads, as well as homesites, that are sold to individuals interested in constructing a primary or secondary residence for personal use. All destination resorts and planned unit developments throughout Central Oregon include lands for homesites, access roads, and common area. When developers are acquiring acreages for the purpose of a destination resort or planned unit development, the same amount of dollars are paid for all lands regardless of the assigned use within the development plan. Therefore, it is reasonable to believe that properties purchased for the development of common area have an equal value to lands improved with roads and/or homesites. In the case of valuing the subject property, the most logical comparables would be those properties acquired for residential development. This includes a wide variety of property types, with the appropriate sales/listing data coming from the immediate vicinity BendC12S: SeventhMtnDrive_WidgiCreekClubPoolHouse )4 11'414 4 A study of the Widgi Creek Destination Resort area failed to uncover any current transactions involving "path of progress" development land, as this destination resort is considered to be built out. Therefore, the geographical boundaries of the market search were expanded to include a variety of residential areas in Bend. An attempt has been made to study "path of progress" lands that have similar highest and best use to the subject property. Research has included a study of the Deschutes County Assessor's sales records, Central Oregon Multiple Listing Service sales data, and appraisal office files. Furthermore, I have completed a telephone survey of real estate brokers knowledgeable of "path of progress" residential use sales/listings in an effort to discover added sales information. All comparable properties have been personally viewed by the appraiser signing this report. In addition, transactions have been verified by a knowledgeable market participant. I have also made an attempt to find current sales or listings of common area buildings throughout destination resorts or established communities in Central Oregon. This information was somewhat limited; however, some anecdotal market data is presented within the Highest and Best Use. 4. The Type and Extent of Analysis Applied to Arrive at Opinions or Conclusions - In order to arrive at a final value conclusion, I have used the Sales Comparison Approach to estimate a land value and studied replacement cost and depreciation estimates for improvements such as those located on the site. A Replacement Cost Approach has been developed. The Income Approach and Direct Sales Comparison Approach have been omitted from the appraisal as not applicable due to a lack of available data. This report is written in a summary appraisal report format that conforms with the Uniform Standards of Professional Appraisal Practice (US PAP). BendCI 25: SeventhMtnDrive_WidgiCreekClubPoolHouse kl'1' I 1;1,1,11, 5 5. Conclusion - In conclusion, this written record is appropriately identified as a summary appraisal report written to conform with the Uniform Standards of Professional Appraisal Practice (USPAP). The delivery of the appraisal to the client constituted the completion of this assignment. WORK FILE Bratton Appraisal Group LLC maintains a large data base of information dealing with real estate in the local market. This data includes information in regard to land sales, the history/evolution of the destination resort business in Central Oregon, local zoning ordinances, and utility maps. A system is in place to collect, compile, maintain, and store this information. The sum of this general data has been reviewed and considered in the analysis of the subject property. However, only the pertinent information has been presented within this report. The information retained within the office and stored in various computer files, cabinets, and folders is considered to be part of the work file of this appraisal. As such, all data is available for review by the clients or duly authorized parties upon request. BendC1 2S: Seventh MtnDrive_WidgiCreekClubPnolHouse 6 SPECIAL ISSUES 1. This appraisal has been completed in an effort to estimate a retrospective market value of the property, in light of factors in place on January 1, 2012. The Uniform Standards of Professional Appraisal Practice (USPAP) allows appraisers to estimate retrospective values under certain circumstances. It is my understanding that the physical condition of the property on January 1, 2012 was similar to the physical condition of the property on November 30, 2012 (date of observation). 2. The client of this report has given the appraiser special instructions to value the property as designated open space within the Widgi Creek Destination Resort. The underlying zone as identified by the Deschutes County Planning Department is WCR (Widgi Creek Residential). The Widgi Creek Destination Resort Master Plan and covenants, conditions and restrictions (CC&R's) relating to the subject identifies this property as open space used for recreational purposes benefiting the Homeowner's Associations in place within Widgi Creek. 3. Improvements on the property include a clubhouse/pool building and open air swim pool. These improvements have not been used or maintained for owner use for 12 months. Research reveals that the economic benefit from these improvements does not warrant continued maintenance and they should be removed from the property (see Highest and Best Use). 4. I have not been provided an environmental audit relating to the subject property. I am not qualified to detect the presence of toxic or hazardous substances or materials which may influence or be associated with the property or any adjacent property and I have made no investigation or analysis a.s to the presence of hazardous materials. I expressly disavow any ability or liability to express opinions in regard to hazardous substances. If the client has concerns in regard to this matter, an appropriate consultant with -- knowledge in environmental issues should be contacted. BendC1 2S: SeventhMtnDrive_WidgiCreekClubPoolHouse 1101.10N it 4, 7 5. No responsibility assumed for matters of legal nature affecting title to the property nor is an opinion of title rendered. The title is assumed to be good and merchantable. PROPERTY RIGHTS APPRAISED This report values the unencumbered fee simple estate of the subject property, in light of market factors in effect on January 1, 2012. DEFINITION OF PROPERTY RIGHTS APPRAISED The Dictionary of Real Estate Appraisal, 5th edition, copyright 2010, by the Appraisal Institute defines fee simple estate as: "Absolute ownership unencumbered by any other interest or estate, subject only to the limitations imposed by the governmental powers of taxation, eminent domain, police power and escheat." DEFINITION OF MARKET VALUE "Market Value" means the most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably, and assuming the price is not affected by undue stimulus. Implicit in this definition is the consummation of a sale as of a specified date and the passing of title from seller to buyer under conditions whereby: 1. Buyer and seller are typically motivated; 2. Both parties are well informed or well advised, and acting in what they consider their best interests; 3. A reasonable time is allowed for exposure in the open market; 4. Payment is made in terms of cash in U.S. dollars or in terms of financial arrangements comparable thereto; and 5. The price represents the normal consideration for the property sold unaffected by special or creative financing or BendC12S: SevenihMtnDrive_WidgiCreekClubPaolHouse 1(Vf1ON\ sales concessions granted by anyone associated with the sale." (SOURCE: Federal Reserve Regulation 12 CFR Part 564.2, Definitions "g") DATE OF VALUE January 1, 2012 DATE OF INSPECTION/RESEARCH November 30, 2012 COMPETENCY OF THE APPRAISER The appraiser has the appropriate knowledge and experience to complete this assignment competently. I have extensive experience appraising investment grade real estate, including "path of progress" residential development land, PUD's, subdivisions, and destination resorts. Bratton Appraisal Group LLC is a professional real estate appraisal firm employing appraisers licensed/certified by the State of Oregon. Appraisal work load is assigned on an individual basis with decisions made in regard to individual appraisers completing assignments with which they have adequate experience and/or training. The office profile emphasizes ongoing educational requirements with emphasis toward achieving professional designations with credible appraisal organizations. PROHIBITED INFLUENCES The appraisal assignment was not based upon any requested or specific valuation. Employment of the appraiser was not conditioned upon the appraisal producing a specific value or value within a given range. The appraiser has no personal interest or financial investment in the subject property. Bendel 2S: SeventhMtnDrive_WidgiCreekClubPoolliouse 9 MARKETING PERIOD AND EXPOSURE TIME This report assumes a 12-15 month marketing period and exposure time. This 12-15 month time period is based upon the appraiser's experience in the local marketplace and the time required to sell properties like the subject. It should be noted that many large acreages within the Central Oregon area are not officially listed for sale, but instead they are sold by knowledgeable brokers or investors who contact landowners directly, Overall, market demand has been slow for properties like the subject and investment grade properties must be priced at the low end of the market value range to receive interest from potential purchasers and sell within a reasonable period of time. This concept has been considered when selecting the value estimate. TREND ANALYSIS The Central Oregon area has historically experienced good real estate growth trends, with overall values and rental rates tending to increase over time. This has included development patterns customarily involving the platting of additional subdivisions, with corresponding increases in building peiiuits to meet market demand. This trend was fueled in recent years (2004-2006) by rapidly increasing values (appreciation) which attracted investors into the housing market. However, the residential sector has cooled significantly since the summer of 2006 when home prices peaked. Subsequent to this era, home sales activity has decreased, resulting in an overabundance of residential housing stock and a corresponding increase of lot inventory. This pattern has resulted in declining values over the past four plus years. A dramatic decrease in construction permits issued by Deschutes County between the years 2007-2011 has resulted in an area -wide real estate recession. Land values for many investment grade real estate parcels have declined by 50% - 70%. PERSONAL PROPERTY No personal property has been included in this appraisal analysis. I have categorized the subject property as vacant land. BendC1 2S: SeventhMtnDrive_WidgiCreekClubPoolHouse ; 10 ASSESSMENT DATA The subject property is identified as Deschutes County Assessor's map #18 11 22DA - tax lot 1600. The Assessor's office identifies this property as 1.59 acres of land that is zoned WCR (Widgi Creek Residential) and it lists a current real market value estimate of $544,390. The taxable assessed value is $544,390 and this figure multiplied by a current tax rate of $13.46 per $1,000 of assessed value yields an annual tax billing of $7,327. This appraisal is being written in an effort to provide an independent third party valuation of the subject property to document an appeal of the Assessor's real market value estimate. DELINEATION OF TITLE/HISTORY OF OWNERSHIP The subject property is held in the ownership name of BHELM LLC and tax billings are sent to 18707 SW Century Drive, Bend, Oregon. There have been no changes in title in the past three years. On April 6, 2012, Barry Helm, the owner of Widgi Creek Golf Course, submitted a proposal to the Widgi Creek Homeowner's Associations to transfer title and ongoing maintenance of the subject property to the residents. The proposed sales price was $200,000 for the pool building, pool, and land. Furthermore, Mr. Helm offered a 30 -year loan at an interest rate of 4,5% with no interest and no payments required until January 1, 2015. This delayed payment schedule would allow the Homeowner's Associations time to complete approximately $50,000 in needed repairs and legal upgrades. Individual residents voted to not approve the purchase of the property and deteiuiined that its ongoing use was not needed. This decision was partly determined by actual experience from the Elkai Woods Fractional Owners Association that leased the property from June 15, 2011 to October 15, 2011 for a total lease payment of $1.00. This Owner's Association determined that the ongoing cost and maintenance of the property did not offset its beneficial use. These documents are contained in the addenda to the appraisal. BendC I2S: SeventliMtnDrive_WidgiCreekClubPoolHouse 11 DESCRIPTION OF WIDGI CREEK DESTINATION TORT The Widgi Creek Destination Resort is located approximately ive miles southwest of the community of Bend, along Century Drive. It i eludes an 18 -hole golf course, restaurant, and golf course pro shop. Ther are 107 detached single family dwellings within the Widgi Creek Destinatibn Resort, 37 gated townhomes, and 49 fractional ownership buildings. The c estination resort provides a mix of primary residences and second homes. It is well located and within the Bend service district. SITE DESCRIPTION The subject property can be described as a 1.60 acre tract of land located at the southeast corner of the intersection of Seventh Mountain Drive and Elkai Woods Drive, Widgi Creek, Bend, Oregon. This property is designated as open space on the Widgi Creek Master Plan. Furthermore, the property is identified as a recreational tract within the Widgi Creek Destination Resort maps/master plan. It is currently improved with a clubhouse/pool house and open air swim pool. The property is irregular in shape and locked along arterial roads. It is relatively level, on grade with existing streets and the majority of native vegetation has been removed for the development of site improvements, landscape borders, and asphalt paved parking areas. Widgi Creek services include City of Bend water and sewer linn, Pacific Power & Light power lines, CenturyLink Telephone lines, and Bend TV Cable. Roadways accessing the subject property are asphalt aved and considered . to be private arterials maintained by the Wiil gi Creek Homeowner's Associations. There are no concrete curbs or sidew lks in this area. The property is surrounded by homesites that are improved with fractional use buildings, attached condominium units, and detached single family dwellings. BendC I2S: SeventhMtnDrive_WidgiCreekClubPoolHouse 12 After considering the locational, physical, zoning, and utility amenities that relate to the subject property, I have concluded that the subject site is appropriately located to provide support land uses in conjunction with open space and recreational uses for Widgi Creek owners. IMPROVEMENT DESCRIPTION Improvements on the property can be described as a 3,548 square foot, wood frame clubhouse/pool house, 30' x 60' open air swim pool, spa pools, asphalt pavement, landscaping, and good quality fencing. Photographs of all improvements are contained within the addenda to this report. Clubhouse/Pool House - This structure was constructed in 1990 +/- utilizing wood frame construction techniques employed during that decde and it includes a continuously reinforced concrete perimeter foundation and concrete slab floor, standard wood frame construction techniques with all exterior walls and roof areas, T1-11 plywood siding (installed horizontally), composition shingle roof covering, metal frame windows, and wooden entry doors. The design and construction elements of the building can be compared with average quality wood frame office/commercial buildings constructed throughout the Central Oregon area during the 1990's. Interior finish items include minimal wood frame partitions that develop a large meeting room, small kitchen area, two 2 -fixture restrooms, and two dual changing rooms (accessed via exterior doors). All interior walls and ceiling areas are finished with textured sheetrock walls/ceiling 'coverings. The interior floors are finished with a mix of ceramic tile, commercial grade carpet, and vinyl floor products. Average quality fluorescent tube and incandescent light fixtures were noted within the building. In addition, I have assumed that there is adequate electrical power and voltage for light commercial uses. Plumbing fixtures are -American Standard or equal items. Wintertime heat needs are met through the use of an electric fired furnace system. BendC12S: SeventhMtnDrive_WidgiCreekClubPoolHouse 13 Specialty items include a stone fireplace and covered vehicle staging area (carport). The structural improvements have not been maintained in the past year and are considered to be in fair condition. Swim Pool/Spas - A site built swim pool that is 1,800 square feet in size has been developed in the property. This pool displays concrete construction techniques and a concrete deck. The pool has been winterized and is not currently being used. Site built spas are also located in the vicirlity of the pool and these have been disabled and are no longer in use. Representatives for Widgi Creek report that prior to opening the pool, approximately $50,000 in repairs and upgrades are required. This includes maintenance of pumps and physical elements, as well as the installation of handicap acces systems. Other Site Improvements - Other site improvements include approximately 11,000 square feet of asphalt paved parking surfaces that provide auto staging/parking areas, a large established lawn area, and perimeter fencing. All improvements have been photographed and I direct the rea1er of this report to the addenda to view the photographs taken on-site. The asphalt surfaces and landscaped areas have been maintained during the 2012 calendar year. HIGHEST AND BEST USE In the most recent edition of the Appraisal of Real Estate, the Institute of Real Estate Appraisers defines the highest and best use American as: The highest and best use of a property is that use which is physically possible, legally permissible, financially feasible, and which results in the maximum utility and highest value of the property analyzed. The use must be legal and probable, not speculative or conjectural. The demand for the use must exist and it must yield the highest net return to the land for the longest period. The following steps must be considered in estimating the highest and best use. BendCI 2S. SeventhMtnDrive_WidgiCreekClubPoolHouse 14 HIGHEST AND BEST USE AS A VACANT SITE Legally Permissible Use - The subject property is located within a Destination Resort (DR) and is zoned Widgi Creek Residential (WCR). A copy of the WCR zoning ordinance as set forth by Deschutes County is contained in the addenda to this appraisal. The purpose of the DR zone is to establish a mechanism for citing destination resorts to ensure compliance with LDCD Goal Eight and the County Comprehensive Plan. The Destination Resort designation is intended to identify land areas which are available for the citing of destination resorts but which will only be developed if consistent with the purpose and intent of DCC 18.113 and Goal Eight, Within the confines of a destination resort, a variety of uses are allowed to include single family homes, overnight lodging, recreational amenities, and support commercial uses. The subject site is designated on the Widgi Creek Master Plan as open space and is expected to be used for recreational purposes to benefit the homeowners residing in Widgi Creek. The covenants, conditions and restrictions for Widgi Creek specifically prohibit residential dwelling units or commercial activity on lands set aside as open space. The subject property is logically a recreational use site and the existing community room/pool room is considered to be an allowed use for the subject property. Few alternative uses are considered to be legally permissible. Physically Possible Use - The second constraint on the property is the possible use of the property as dictated by the physical aspects of the site. The size and location are important determinants of value. In general, the large the site, the greater the potential to achieve economies of scale and flexibility in development. The subject property is somewhat triangular in shape and offers a total land mass of 1.60 acres (69,434 square feet). It is level on grade with existing streets and has the availability of all city services and utilities required for development. The majority of site vegetation has been removed from the property to ready it for the existing improvements. There are no physical constraints on the property that reduce its development potential, with the exception of its total size. BendC12S: SeventhMtnDrive_WidgiCreekClubPoolHousc 15 Financially Feasible Use - It appears that it is no longer financially feasible to offer a community building/swim pool building and open air swim pool on this property. The subject structure and recreational amenities (swim pool) were constructed during the development phase of Widgi Creek in an effort to attract lot buyers and home/condominium builders. Widgi Creek has matured to the point where the majority of lots are improved and the population base has stabilized. The destination resort has 107 private homes, 37 gated townhomes, and 49 townhomes fractionalized into multiple owners. There are three Homeowner's Associations in place within the Widgi Creek Destination Resort. On June 15, 2011, the Elkai Woods Fractional Homeowner's Association entered into an agreement with the property owner to lease the entire subject property for $1.00, with the lease term running from June 15, 2011 to October 15, 2011. After attempting to manage this property as a recreational facility, the Elkai Woods Fractional Homeowner's Association elected to discontinue use. The property was not leased during the 2012 calendar year. In April 2012, Barry Helm, the owner of Widgi Creek Golf Course, made an attempt to sell the subject property to the Homeowner's Associations within Widgi Creek. The offered price was $200,000, which included 100% financing for 30 years at a 4.5% interest rate. All payments were to be delayed until January 1, 2015 to allow the Homeowner's Associations enough time to complete needed repairs and legal upgrades ($50,000 estimate). A ballot was submitted to the homeowners in regard to this possible acquisition and the proposal to purchase the property did not pass. Brad Hudspeth, general manager of the Widgi Creek Golf Course, has stated that the ongoing use of the recreational building/swimming pool is no longer economically feasible. Tia I.ewis, a private land use planner who represents Widgi Creek, has stated that it is not possible to convert the subject building to residential or commercial uses due to the fact that the Widgi Creek Destination Resort Master Plan labels this property as common area and it is to be used for recreational purposes only. To alter the use to residential or commercial uses would require approval from the Deschutes County Planning Department, Deschutes County Commissioners, and the Homeowner's Associations in Widgi Creek. This is not a likely event. Widgi Creek homeowners have availability to the Seventh Mountain recreational area and Athletic Club of endC 12S: Seventh Mtn Dt i ve_W idgiC reekClubPoo Nouse 16 Bend. These are two large recreational use properties located within close proximity that offer an array of recreational amenities. It appears that the most logical feasible use of the property is to remove the recreational building and swim pool and convert the property to open native landscape and use it as open space. Maximally Productive Use - As stated in prior text, the maximally productive use of the property is to remove the community building/pool building and swim pool and convert the property to open space with native landscaping. Conclusion to the Highest and Best Use - The existing community building/pool building and open air swim pool are believed to be in place near the end of their economic lives. Although these improvements appear to contribute some value to the property, it appears that it is no longer economically feasible to operate a community building/swim pool facility at this location. The improvements should be removed and the site returned to native landscape. APPRAISAL PROCESS The appraisal process is a procedure for estimating the value of real property. It is a method of solving a problem which requires the appraiser's interpretation in terms of money, the value which has resulted from the social, economic, political, and environmental factors that influence value. The appraisal process must analyze the pertinent factors which relate to typical buyers and sellers in the local real estate market. Generally, when appraising real estate, three standard approaches to value are analyzed and these methods utilize information gathered from the local real estate market. The traditional approaches to value include the Cost Approach, Income Approach, and Sales Comparison Approach. The Sales Comparison Approach to Value has been used to estimate a value for the underlying land. The Cost Approach is used to estimate a contributory value for the improvements. Depreciation estimates are based on observed conditions and information provided by the property owner. BenciC1 2S: SeventhMinDrive_WidgiCreekClubPoolHouse 17 The Income Approach has been omitted as "not applicable." As stated in prior text, an attempt was made to lease the property to Homeowner's Associations for $1.00 for a summer season (June 15 through October 15, 2011). A Homeowner's Association attempted to operate the building and found that excessive costs were greater than the benefit that was gained by maintaining an open pool. The property was not leased or operated during the 2012 calendar year. The Sales Comparison Approach for the property as a vacant recreational building/pool building has been omitted due to a lack of meaningful data. Research throughout destination resorts in Central Oregon revealed one swim pool complex in the Sunriver area that was sold as common area land. The original Sunriver swim pool has been removed and this land has been returned to general land and will be available for future commercial development if warranted (the underlying zone for this site is commercial). Otherwise, there is no meaningful market data with which to complete a Sales Comparison Approach for the property as improved. The valuation of the subject property is presented in the following text. B endCI 2S Seventh MinDrive_W idgi Creeka ubPool House 18 t 1 2 3 4 5 6 PARTIAL TRANSCRIPTION OF HEARING 7 HELD 01/06/2015 8 BEFORE HEARINGS OFFICER GREEN 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORIGINAL 25 CASCADE COURT REPORTERS, INC. (541) 385-5664 2 1 -oo- 2 MR. HUDSPETH: My name is Brad Hudspeth, 3 I General Manager of widgi Creek Golf Club. The 4 question, I think, that I'm being asked is is the golf 5 course going to change in any way basically whether 6 this development happens or not, and it will not. 7 mean that golf hole is going to be the exact same, all 8 the other golf holes are going to remain the same. 9 HEARINGS OFFICER GREEN: Do you want to bring 10 the mic closer to you? People are not able to hear you 11 in the back. 12 MR. HUDSPETH: What I was saying is the golf 13 course is not going to change. The tees are in the 14 same spot, the green's in the same spot, the out of 15 bounds, everything is in the same spot. 16 HEARINGS OFFICER GREEN: So let me stop you 17 there 18 MR. HUDSPETH: Yes. 19 HEARINGS OFFICER GREEN: because there is a 20 difference of opinion about where the out-of-bounds 21 boundary is. 22 MR. HUDSPETH: Okay. 23 HEARINGS OFFICER GREEN: And I'm not a golfer. 24 MR. HUDSPETH: Okay. 25 HEARINGS OFFICER GREEN: So forgive me if I CASCADE COURT REPORTERS, INC. (541) 385-5664 3 1 sound like I'm not a golfer. My understanding is that 2 if -- well, okay. Let me step back and say I know just 3 in the Bend area I've seen golf courses modified from 4 time to time, modernized, if you will, you know, maybe 5 reconfigured slightly to change up the course to make 6 it easier, harder, whatever. 7 MR. HUDSPETH: Right. 8 HEARINGS OFFICER GREEN: Might even mean 9 moving a sand trap, moving a water feature, lengthening 10 a fairway, something like that. 11 MR. HUDSPETH: Yeah. 12 HEARINGS OFFICER GREEN: I was not aware until 13 I read this record that there is an out-of-bounds 14 boundary that, you know, outside of which it's not the 15 golf course and inside of which it is the golf course 16 and that it actually affects people's scores and so 17 forth. 18 MR. HUDSPETH: Correct. 19 HEARINGS OFFICER GREEN: So I guess the 20 kind of what the question that opponents have raised 21 and that I'm asking as well is what -- what can -- how 22 can I put this. I guess I'm assuming that the operator 23 of a golf course has some flexibility in modifying the 24 course over time. 25 Does that flexibility typically include moving CASCADE COURT REPORTERS, INC. (541) 385-5664 4 1 the out of bounds or are there standards that require a 2 minimum size or width, or how does that work? 3 MR. HUDSPETH: Not a standard to a minimum 4 size. what happened in our instance is when we took 5 over in 2005 we had a lot of out-of-bounds stakes 6 either not present, like was the case in number one, so 7 you would basically hit it over the road and still 8 think you could play; number seven, behind that green. 9 Basically the OGA came in along with Josh -- 10 HEARINGS OFFICER GREEN: What is the OGA? 11 MR. HUDSPETH: Oregon Golf Association. 12 HEARINGS OFFICER GREEN: Okay. 13 MR. HUDSPETH: And number one we -- again, we 14 didn't have the stakes before, so they figured out 15 essentially where the proper line of that hole would 16 be. Number four, we had to move those stakes in, 17 number seven by the bathroom. 18 HEARINGS OFFICER GREEN: So when you are 19 talking about the proper 20 MR. HUDSPETH: The hole. 21 HEARINGS OFFICER GREEN: how is that 22 determined where -- what's the proper location or 23 boundary? 24 MR. HUDSPETH: Umm, 1 -- I don't know. 25 HEARINGS OFFICER GREEN: Is it just a CASCADE COURT REPORTERS, INC. (541) 385-5664 5 1 designer's choice or there is not a standard, an 2 industry standard that it should be 50 feet wide or 3 20 feet wide or whatever? 4 MR. HUDSPETH: No. That might be more when 5 You bring Josh up. 6 MS. LEWIS: But they essentially told you 7 where to put the stakes. 8 MR. HUDSPETH: Yeah. Essentially that's what 9 you do, and like I said we had to do that on one, four, 10 seven, 11, 12, 14, 15, 16. We had to move 13. The 11 people here probably remember it was halfway up the 12 hill. The biggest reason that you do that is 13 essentially in this day and age the toughest thing of 14 golf is pace of play. 15 HEARINGS OFFICER GREEN: sorry. Say that 16 again. 17 18 19 MR. HUDSPETH: How long it takes to play a 20 round of golf. 21 HEARINGS OFFICER GREEN: okay. 22 MR. HUDSPETH: And the more areas where people 23 are out looking for balls where they shouldn't be 24 HEARINGS OFFICER GREEN: The longer it takes. 25 MR. HUDSPETH: the longer it takes. MR. HUDSPETH: Pace of play. HEARINGS OFFICER GREEN: Pace of play. Okay. CASCADE COURT REPORTERS, INC. (541) 385-5664 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 HEARINGS OFFICER GREEN: okay, MR. HUDSPETH: Exactly. HEARINGS OFFICER GREEN: So there is testimony, written testimony in the record from residents of widgi Creek that the out-of-bounds stakes were just recently moved inward. MR. HUDSPETH: I wouldn't call it recently. It's been several years now. I have not heard one one complaint, one anything about the hole not being the way it should be. I have not heard one thing about that. HEARINGS OFFICER GREEN: From from the golfing community. MR. HUDSPETH: From the golfing community. HEARINGS OFFICER GREEN: okay. So, when - I'm a golfer and I'm on fairway one. MR. HUDSPETH: Yes. HEARINGS OFFICER GREEN: And I hit off off the fairway. MR. HUDSPETH: Right. HEARINGS OFFICER GREEN: So if I would know whether I m outside of bounds or not, I would find two stakes and figure out whether I'm inside or outside the line MR. HUDSPETH: Correct. CASCADE COURT REPORTERS, INC. (541) 385-5664 7 1 HEARINGS OFFICER GREEN: created by the 2 formed between those two stakes? 3 MR. HUDSPETH: Correct. 4 HEARINGS OFFICER GREEN: Okay. And then if 5 you -- if you decide to move that, then golfers are 6 just on notice, they have to -- they have to pay 7 attention to where the stakes are? 8 MR. HUDSPETH: Correct. 9 HEARINGS OFFICER GREEN: That tells them where 10 the out of bounds is? 11 MR. HUDSPETH: Uh-huh. 12 HEARINGS OFFICER GREEN: Okay. Okay. Thank 13 you. That's helpful. 14 MR. HUDSPETH: okay. 15 MS. LEWIS: Can you talk also just a little 16 bit about the proximity to other residences on the 17 course and how you believe this is similar or 18 UNIDENTIFIED SPEAKER: I can't hear you. 19 MS. LEWIS: Sorry. 20 HEARINGS OFFICER GREEN: She is really just 21 talking to her witness just a second. 22 MS. LEWIS: If you use that map to point to 23 other areas where there are residences that are close 24 to and how that impacts play and how this will be 25 similar to that, and you can take this up there with CASCADE COURT REPORTERS, INC. (541) 385-5664 13 the -- what's the golf season in an average year? 2 MR. HUDSPETH: Hopefully around the first of 3 March towards the middle of November. 4 HEARINGS OFFICER GREEN: So if it's a good 5 year seven -- seven months? 6 MR. HUDSPETH: In that in that zone, yeah. 7 HEARINGS OFFICER GREEN: Okay. 8 MR. HUDSPETH: Yeah, 9 HEARINGS OFFICER GREEN: Okay. Thank you. 10 MR. HUDSPETH: Yeah. 11 MS. LEWIS: Thank you. So now 11 have Josh, 12 who is the assistant pro, who will state his full name 13 for the record for us. 14 MR. BOWLES: Joshua Bowles, B -O -W -L -E -S, and 1 15 am the assistant golf professional at widgi Creek. 16 M5. LEWIS: Since? 17 MR. BOWLES: Since February of 2006. 18 MS. LEWIS: so if you will talk -- your 19 testimony will be pretty similar to Brad's, talk about 20 why the out of bounds were located, when that was done 21 and why, and just the play on the hole and whether or 22 not the townhomes will have an impact on it. 23 MR. BOWLES: Sure. So, our previous head golf 24 professional, Dan ostrand, is no longer with us but he 25 was a part of myself, himself and the OGA, Oregon CASCADE COURT REPORTERS, INC. (541) 385-5664 i 14 1 Golf Association, when we were re -rated, we are not 2 exactly sure of the year but we're assuming about 3 four -- at least four years ago. 4 when Brad Hudspeth and Barry Helm took over 5 the golf course in 2005, there were no out-of-bounds 6 stakes along the right-hand side of hole number one, so 7 as far down as the road and to the entrance there was 8 no out-of-bounds stakes or -- they are colored white, 9 they are white stakes. 10 Approximately four years ago we were being 11 re -rated by the Oregon Golf Association and they had 12 recommended that we put in place white stakes or 13 out-of-bounds stakes along the right side of hole 14 number one for reasons that have already been stated, 15 pace of play issues, also some safety concerns with 16 people walking along the road or traffic traveling 17 along the road, you know, a ball could be hit in that 18 direction. 19 Also, we had some maintenance not concerns but 20 if you put out-of-bounds stakes it cut down on their 21 mowing times. 22 HEARINGS OFFICER GREEN: So they don't mow 23 outside of the stakes? 24 MR. BOWLES: Right. 25 HEARINGS OFFICER GREEN: Or at least not for CASCADE COURT REPORTERS, INC. (541) 385-5664 15 , 1 golf maintenance. 2 MR. BOWLES: Right. 3 HEARINGS OFFICER GREEN: So I think I 4 understand Mr. Hudspeth to say that more than -- that 5 out-of-bounds stakes were either established or moved 6 for other -- other holes, other fairways besides 7 fairway one. 8 MR. BOWLES: Right. we had a list of nine 9 holes, so approximately half the golf course that were 10 recommended or suggested that we move out-of-bounds 11 stakes. 12 HEARINGS OFFICER GREEN: And were those moved 13 both out and in? were some expanded and some 14 contracted, or were they all brought in? 15 MR. BOWLES: They were all brought in. 16 HEARINGS OFFICER GREEN: Okay. 17 MR. BOWLES: So, for example, number four 18 along the left side, that's Meadow Camp Road, the dirt 19 road that runs parallel to number four, the 20 out-of-bounds stakes were almost right near the road 21 and so we moved them in closer to the golf course. 22 That would be one example. 23 HEARINGS OFFICER GREEN: Okay. 24 MR. BOWLES: None were moved away from the 25 golf course. CASCADE COURT REPORTERS, INC. (541) 385-5664 16 1 As far as playability of the hole from a 2 golfer's perspective, 1 don't believe that it will 3 impact play at all. The hole will still be played the 4 same. You know, standing on the tee box and looking 5 down the fairway at your line of play, the -- the 6 townhomes will be far off to the right that it won't be 7 impacted at all. 8 Townhomes that are closer to play as Brad 9 mentioned on 18, when you are standing on tee boxes, 10 those townhomes are right on the out-of-bounds line and 11 they are within your line of play. There is actually a 12 bunker on the same line as a townhome, so the townhome 13 sits right behind the bunker, or sand trap. 14 15 if the ball went straight it would collide with the 16 building is what you are saying. 17 MR. BOWLES: It could, if it was on the same 18 line as the sand trap. 19 HEARINGS OFFICER GREEN: Okay. All right. 20 Thank you. 21 -oo- 22 MS. LEWIS: Thank you, and I will be brief 23 with the oral rebuttal because we will do most of this 24 in writing. 25 There is just a couple of points that the HEARINGS OFFICER GREEN: Okay. So if the -- CASCADE COURT REPORTERS, INC. (541) 385-5664 17 1 opponents made, primarily Mr. McGean, that 1 wanted to 2 address. The one is the continued reliance on the 3 comprehensive plan provisions that prohibit development 4 of what is designated common area, and we can debate 5 all day about what that notation means on the plat, but 6 common area is defined in our comprehensive plan and so 7 we don't have to guess about what the county meant when 8 it adopted the provisions that prevent development of 9 common area, and this piece of property does not now 10 nor has it ever met that definition of common area. 11 The other thing 1 wanted to touch on was the 12 fully built -out statements regarding the urban 13 unincorporated communities planning. Again, as you 14 indicated, it says substantially built out and it 15 continues to cite the numbers, the 210, so 16 substantially at the time that that was adopted was 17 about 85 percent, which is substantially built out, and 18 what we are proposing is the remaining 15 percent of 19 that. 20 Moving to the fairway testimony, with regard 21 to the out-of-bounds markers the testimony was not that 22 those out-of-bounds markers were moved, the testimony , 23 was that there never were any there, and so what was 24 treated as out of bounds was the roadway,but when the 25 OGA came in the out -of -bound markers -- is that right, CASCADE COURT REPORTERS, INC. (541) 385-5664 18 OGA? 2 UNIDENTIFIED SPEAKER: Oregon Golf 3 Association 4 MS. LEWIS: Yes, the out -of -bound markers were 5 placed there at their direction based on their 6 assessments, and not only there but throughout the 7 course. 8 9 fairway project, the mailboxes are also in this area so 10 to the extent -- and and minimal mowing or 11 maintenance of this area doesn't transform it into golf 12 course, just because it's mowed. There is noxious 13 weeds removal, there is a lot of maintenance and upkeep 14 that goes on on all of the property throughout the 15 community, whether it's golf course or not, so this is 16 an area that has always been pretty heavily treed and 17 an area where the mailboxes are. So the out -of -bound 18 markers were not moved, they were placed for the very 19 first time when the OGA came in. 20 And then lastly, with regard to the tax lot 21 1400, the 22 units that are located within the Points 22 West development are served by the Inn at the 7th 23 Mountain water system and by the Inn at the 7th 24 Mountain street system and by easements related to the 25 Inn at the 7th mountain Resort. Those units in Points If I can for just a minute flip over to that CASCADE COURT REPORTERS, INC. (541) 385-5664 i 20 1 CERTIFICATE 2 STATE OF OREGON ) SS. 3 COUNTY OF DESCHUTES 4 5 1, GENIE L. KELLEY, Certified Shorthand 6 Reporter, do hereby certify: 7 That the digitally -recorded hearing was 8 taken down by me in machine shorthand and was 9 thereafter reduced to writing through computer-aided 10 transcription, that the foregoing represents to the 11 best of my ability, a true and correct transcript of 12 the proceedings had in the foregoing matter. 13 I further certify that I am not an attorney 14 for any of the parties hereto, nor in any way concerned 15 with the cause. 16 DATED this 22nd day of January, 17 in Bend, Oregon. 18 C-Ct 19 20 21 22 23 24 25 GENIE L. KELLEY, CM, CSR Registered Professional Reporter CASCADE COURT REPORTERS, INC. (541) 385-5664 2014,; To: Karen Green Deschutes County Hearings Officer From: Louis Bennett, PGA Head Golf Professional Tetherow Golf Club Bend, Oregon TETHEROW BEND OREGON I would like to comment on the proposed development on the right hand side of the first hole at Widgi Creek Golf Course. In growing up in Bend, as well as being a golf professional in the area, I have played numerous rounds of golf in Central Oregon as well as many rounds of golf, specifically, at Widgi Creek. After viewing where the proposed townhomes would be built, I do believe they would have no impact on this golf hole as it is played today and that the houses would be well out of the "danger zone", so to speak. The first hole at Widgi Creek is a slight dogleg left and the proper tee shot is to favor the left side of the fairway, which leads straight to the green. This puts the right side with significant room to keep your ball inbounds. This hole is also a very short Par 4 hole and calls for an iron tee shot, or possibly a hybrid, to put your ball in position for a short approach shot to the green. Because an iron or hybrid does not hit the ball as far as a driver, they are much easier to control the trajectory and less likely to go way off target. As the hole plays now, it takes a significant mishit to fly out of bounds. For those who use a driver, if they do miss to the right, they will be, more than likely, 50 to 100 yards past where the last proposed townhome would be built, as the homes are back closer to the teeing area. PH -23 Page 1 of 2 TETHEROW GOLF CLUB 61240 SKYLINE RANCH RD, BEND OR 97702 (P) 541.388.2582 (F) 541.388.9810 TETHEROW.COM The idea that a 175 foot safety zone from the center of the fairway is a standa for all holes is not supported by any research or publications that I am farigTHEROw with. There is certainly a safe zone for each hole, but the distance will vary BEND OREGON depending on topography, vegetation, the play of the hole, the length of the hole, location of the green, etc.. Every golf course is different and I have seen existing homes on many golf courses that are closer than those at Widgi Creek. In Widgi Creek's particular case, the existing homes on many of the holes are closer than the proposed homesites on hole #1. To summarize, if the townhomes are developed on the first hole at Widgi Creek, I firmly believe they will have no impact on how the hole plays and that the townhomes will not be in imminent danger of being hit by stray golf balls. Thank You, Louis Bennett, PGA Head Golf Professional Tetherow Golf Club PH -23 Page 2 of 2 TETHEROW GOLF CLUB 61240 SKYLINE RANCH RD, BEND OR 97702 (P) 541.388.2582 (F) 541.388.9810 - TETHEROW.COM February 19, 2016 To: Board of Commissioners I have been a Member at Widgi Creek Golf Club for many years now and have found the owner, Barry Helm to be trustworthy and honest. He and Brad seem to always be there and have handled everything professionally and fair and the golf course has only gotten better year after year. I have played over 1,000 rounds on this course since 2010 alone and I am familiar with where the proposed homes will be on the first fairway project. The 1st hole is a short Par 4 that is designed to aim down the center of the fairway with a shot around 180 to 200 yards from the tee, which for most players is less than a driver. Myself, I play a 5 iron. The proposed homes are right ofrthe out of bounds on this hole and substantially away from the target area. There are a lot of homes on this course that are closer than these would be and I really don't see how anyone playing this course would think any differently. I do think people would agree that the homes on the 18th hole would be the ones that stand out as too close to where we are trying to hit our shots to. If this project goes through, I feel that the first hole will play exactly the same and it will continue to be just as awesome as I think it is today. Sincerely, Jerry Olsen 60829 Taralon PI Bend OR, 97701 Date: February 26, 2016 From: Bill Cashel 60490 Elkai Woods Dr Bend, OR 97702 To whom it may concern: Unfortunately will not be able to attend the meeting on the 29th. However, | would like to make a few comments. | am a home owner and have lived at Widgi for 15 years and have watched and participated in the changes that have taken place. One thing is an absolute given — the value, condition and maintenance of the golf course drives the value of everyone's property in our neighborhood. Since Barry purchased the course, he has made substantial investments in equipment and people and we have all benefited as a result. Widgi ranks among the top golf courses in central Oregon. Barry has directly contributed to our property values as a result and has been an outstanding business owner and "boss" as illustrated recently with the article in the local paper about how he supported an employee, Josh, as he develops in his career. As a community we have grown and needs have changed. The "pool" has aged and it's time to support a change. The changes Barry has planned will only add again to our propertyvalues. 1 strongly support having new neighbors and welcome the recommended changes. Let me be perfectly clear. The value of our property is subject to the value of the golf course, not the "pool". Barry has no obligation to make this golf course the best around but he does it because he cares. He will do the same with the proposed changes and we will all gain (again). | support the additions of new homes to our neighborhood. This is a gteat place to live. Thank you Barry! Regards, 4k Bill Cashel Board of County Commissioners Deschutes County Bend, OR c/o Mr. Will Groves 25 February 2016 The purpose of this Ietter is to urge Deschutes County Commissars NOT to approve Widgi Creek Golf Course proposal to build homes on Common 18 immediately adjacent to our home at 60584 Elkai Woods Dr. Our basis follows. My wife and 1 have,for many years, wanted to move to Bend, a very friendly place with aPI of its outdoor nearby activities for active people. Until we could move to Bend, we became owners at the, then, Inn ofthe 7th Mountain. We watched Widgi Creek GoIf develop, becoming very interested in the townhomes. Eventually I retired and sold my company, continuing to look for an opportunity to purchase a Widgi Creek townhome. Late 2002,an attractive townhome became available. We researched the propertyhome owner association, and regulations on the Swimming pool facility across the street on Elkai Woods Drive. The Swimming pool, Iocated on common land (Common 18), was required to be maintained, and could not be used for any other purpose. Because Elkai Woods was already built out, the view in that direction would remain the same. So we bought and moved into our new home in 2003 living here full-time, hopefully forever. Life could not be better for the two if us until recently. Then the owner of WidgCreek Golf course decided he wanted to build new homes located on land not approved for homes. Even though no addituonal homes could be built on Common 18 Mr. Barry Helms hired an attorney whose job apparently is to develop a strategy to allow new homes to be approved. This change has been actively opposed by our and other Homeowner Associations successfully to date. Now this issue is in the hands of the Deschutes County Commissioners. While 1 am not an attorney,1 can read and understand the relevant documents defining what is permissible ori Common 18. It is clear that no homes can be built on Common 18 and that the golf course owner must maintain Common 18 grounds and facilities. As an aside, the pool is in gross disrepair, the pool house has dry rot, and the parking lot which should be available to us, is blocked off. Further, if any homes on Common 18 are somehow permitted, decks on these homes would look directly into our bedrooni and bathroom. Having executive, quasi-judicial, and legislative authority, my wife arid 1 urge you to forcefully disapprove the unfortunate proposal by the golf course owner and supported by his attorney. Further, we also urge Deschutes County to inspect Common 18 and facilities to require, if appropriate, the Common 18 owner to clean up the property and follow Common 18 maintenance requirements. Regards, Kiefer and Sharlene Tobin 60584 Elkai Woods Dr Bend OR 97702 Presentation to Deschutes County Commissioners on 2/28/2019 by K. A. Tobin 541-617-0554 Thank you, as the public's elected advocates, for listening to us as weWidgi Creek Townhomes owners, object strongly to Mr. Barry Helm's proposal to change a long-standing agreement to his benefit. Simply, this is about money as you are well -aware. Despite restrictions, Mr. Helm wants to build townhomes on Common18, currently containing a swimming pool, pool house, and parking lot property. This change will impact our quality of life. So, he hired an attorney to develop a rational to change the Common 18 restrictions to Mr. Helm benefit, not ours. 1 should note that 1 have no issue with his attorney as it is his job. My issue 15 with Barry Helm, who is not a great neighbor, so he can fill his pocket book to our detriment. A little history: My wife and 1 wanted to move to Bend for many years. In fact, 1 first came to Bend in 1956 and skied Mt Bachelor on its first day. However, we could not make the move as we were raising a family and working. But we did purchase a condo at the Inn of the 7th Mountain in early 1988 to enjoy benefits of Bend and the area. For quite a while, we watched the WidgCreek development containing a golf course and various homes. We realized that the townhomes would fit our needs rather well. In 2002 a townhome became available just about the time I retired and sold my company. And after conducting due diligence which included, inter-alia, the HOA CC&R's, Common 18 (the p001 area), and other documentation, we specifically noted that Common 18 would be operated and maintained by Widgi Creek Golf Course. Also this area could not contain homes and the Widgi Creek Townhomes were already built -out. 1 know that you have seen this informatiori. in 2002 we purchased home on Elkai Woods Dr., which is directly opposite the pool and buildings, and moved in. It was perfect for our lives: a great layout, view of a pond, quiet neihborhood, good neighbors, and adjacent to the Swimming Pool and facilities in a common area. Now the Golf Course owner, Mr. Barry Helm, has decided to build homes on Common 18 despite limitations on this propertyHe hired an attorney to develop a story to convince the County to permit substantive changes to Common 18, so homes could be build on that land. (A side note, some of these homes would look directly into one of our bedrooms and a bathroom.) My wife and I thank you for listening to us and reading our letters. 50 in short- Don't allow Barry Helm to build homes on Common 18. Rather, reauire him to live up to the Common 18 requirements - maintain the property which is now full of weeds, the pool is certainly a breeding ground for mosquitoes, the building has dry rot, and the parking area is closed off even though it's a Common Area. SWIMMING POOL AGREEMENT THIS AGREEMENT OF LEASE made thisql flay of 2011 by and between BHELM, LLC, an Oregon limited liability company with its principal office and place of business located at 18707 SW Century Drive, Bend, Deschutes County, Oregon 97702 (hereinafter referred to as "Lessor") and ELKAI WOODS FRACTIONAL .HOMEOWNERS ASSN., an Oregon non-profit corporation with its principal office and place of business located at 61510 South Highway 97, Bend, Deschutes County, Oregon 97702 (hereinafter referred to as "Lessee"). As used herein, this Swimming Pool Facility Lease Agreement is hereinafter referred to as "Lease Agreement." WITNESSETH Lessor and Lessee, for and in consideration of the mutual covenants herein contained, agree. asfollows: I. Property Leased. Lessor hereby leases to Lessee, upon the terms and conditions herein set forth: a. The facilities, machinery, building and equipment used in connection with a swimming pool, and specifically the "Main Pool," located at the Widgi Creek GOlf Club, 18707 SW Century Drive, Bend, Deschutes County, Oregon 97702, including without limitation, pool machinery and fixtures, pumps, chlorinators, lights, lifesaving equipment, parking areas in frontof the pool house consisting of approximately 25 parking spaces, pool furniture, chairs and tables. Lessor represents and warrants that it is the owner of the leased property. b. The real property on the swimming pool and the pool's facility/building, and machinery and equipment used in conjunction with the Main Pool, are located, along reasonable parking accommodations for Lessee and of Lessee and of Lessee's members and guests as set forth above. H. Lease Term. This Lease is for a term of four (4) months, beginning on t , 2011 and ending on eycrberak ts- , 2011. 111. Rent Schedule. Lessee agrees to pay Lessor $1.00 (one -dollar in currency of the United States of America) as rent, and $2,500.00 as Lessee's share of the real property taxes, upon full execution of this Lease Agreement. IV. Default. The following shall be events of default: (a) Default in Rent. Failure of Lessee to pay any rent or other charge within 10 days after it is due. (b) Default in Other Covenants. Failure to Lessee to comply with any term or condition or fulfill any obligation of the Lease (other than the payment of rent or other charges) within 20 days after written notice by Lessor specifying the nature of the default with reasonable particularity. lithe default is of such a nature that it cannot be SWTMM1NG POOL AGREEMENT completely remedied within.the 20 -day period, this provision shall be complied with if Lessee begins correction of the default within the 20 -day period and thereafter proceeds with reasonable diligence and in good faith to effect the remedy as soon as practicable. (c) Insolvency. Insolvency of Lessee; an assignment by Lessee for the benefit of creditors; the filing by Lessee of a voluntary petition in bankruptcy; an adjudication that Lessee is bankrupt or the appointment of a receiver of the properties of Lessee; the filing of any involuntary petition of bankruptcy and failure of Lessee to secure a dismissal of the petition within 30 days after filling; attachment of or the levying of execution on the leasehold interest and failure of Lessee to secure discharge of the attachment or release of the levy of execution within, 10 days shall constitute a default. If Lessee consists of two or more individuals or business entities, the events of default specified in this Section shall apply to each individual unless within 10 days after an event of default occurs, the remaining individuals produce evidence satisfactory to Lessor that they have unconditionally acquired the interest of the one causing the default. If the lease has been assigned, the events of default so specified shall apply only with respect to the one then exercising the rights of Lessee under the Lease. (d) Abandonment. Failure of Lessee fbr 3 days or more to occupy the Premises for one or more of the purposes permitted under this Lease, unless such failure is excused under other provisions of this Lease. (e) Remedies on•Default. In the event of a default the Lease may be terminated at the option of Lessor by written notice to Lessee. Whether or not the Lease is terminated by the election of Lessor or otherwise, Lessor shall be entitled to recover damages from Lessee for the default, and Lessor may reenter, take possession of the premises, and remove any persons or property by legal action or by self-help with the use of reasonable force and without liability for damages and without having accepted a surrender. (f) Damages. In the event of termination or retaking of possession following default, Lessor shall be entitled to recover immediately, without waiting until the due date of any future rent or until the date fixed for expiration of the lease term, the following amounts as damages: (1) The loss of rental from the date of default until a new Lessee is, or with the exercise of reasonable efforts could have been, secured and pay out. (2) The reasonable costs of reentry and reletting including without limitation the cost of any cleanup, refurbishing, removal of Lessee's property and :fixtures, costs or any other expense occasioned by Lessee's default including but not limited to, any remodeling or repair costs, attorney fees, court costs, broker commission, or advertising costs. (g) Lessor's Right to Cure Defaults. If Lessee fails to perform any obligation under this Lease, Lessor shall have the option to do so after 20 days' written notice to Lessee. All of Lessor's expenditures to correct the default shall be reimbursed by Lessee on demand with interest at the rate of 18% annum from the date of expenditure by Lessor. Such action by Lessor shall not waive any other remedies available to Lessor because of the default. (h) Remedies Cumulative. The foregoing remedies shall be in addition to and shill not exclude any other remedy available to Lessor under applicable law. 2 SWIMMING POOL AGREEMENT V. Lessee's Acceptance of Lease. Lessee accepts the Lease and agrees to pay to the order of Lessor the rentals above stated, at the times and in the manner aforesaid. VI. Real Property Taxcs. Lessee shall be responsible for payment of $2,500.00 of the real property taxes assessed against the premises for the 2010-2011 tax year. VIL Utilities. Lessee shall pay for all heat, light, water, power and other services or utilities used in the above -leased premises during the term of this Lease and shall be responsible for winterizing the pool at the end of the Lease term. VIEL Repairs and Maintenance. Lessee shall be responsible for all necessary repairs and/or maintenance expenses for the leased premises, except that Lessee shall not be responsible for the exterior of the pool facility/building, including but not limited to the roof of the pool facility, which shall be repaired and maintained by the Lessor. IX. Right of Assignment. Lessee shall not assign any interest in the Lease without Lessor's Consent which may be withheld at ite sole discretion. X. Insurance. Lessee shall procure and maintain, during the term of this lease, policies of insurance with limits satisfactory to Lessor and otherwise with limits customary for similarly situated leased property. Lessee shall name Lessor as an 'additional named insured on all such property and liability policies of insurance. Lessee Oval pay the cost of said insurance and shall provide Lessor with a copy of the policy upon execution of this Lease. The insurance policy shall provide that it cannot be cancelled without 10 days prior written notice to Lessor. XI. Notices. Any notice required by the terms of this Lease to be given by one party hereto to the other or desired so to be given, shall be sufficient if in writing and mailed by certificate or registered mail with postage prepaid, and if intended for Lessor herein then if addressed to Lessor at the address first noted above, and if intended for Lessee, then if addressed to Lessee at the address first noted above. Any such notice shall be deemed conclusively to have been delivered to the addressee thereof forty-eight (48) hours after the deposit thereof in the United States mail. MI. Heirs and Assign. All rights, remedies and liabilities herein given to or imposed upon either of the parties hereto shall inure to the benefit of and bind the heirs, executors, administrators, successors and, so far as this Lease is assignable by the terms hereof, to the assigns of such parties. XIEL Interprebition. In construing this Lease, it is understood that Lessor or Lessee may be more than one person; that if the context so requires, the singular pronoun shall be taken to mean and include the plural, the masculine, the feminine and the neuter, and that generally all grammatical changes shall be made, assumed and implied to make the provisions hereof apply eqmlly to corporations and to individuals. SWMMINO POOL AGREEMENT . , XIV. Severability. If any term orprovision of this Lease or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease or the application of such term or provision to persons or circumstances other than those as to which is held invalid or unenforceable shall not be affected thereby and shall continue in full force and effect. XV. Total Agreement This Lease contains the entire agreement between the parties and cannot be changed or terminated except by a written instrument subsequently executed by the parties hereto. This Lease supersedes all previous verbal or written agreements of the parties. XVI. Annlicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon, and in the event of any litigation arising out of this Lease, the parties hereto stipulate and agree that the venue of any such action shall be laid in Deschutes County, Oregon. XVII. Use. The Leased premises shall be used by Lessee as a swimming pool and pool related purposes. Lessee shall obey all laws: xvra. Exemption from Payment (a) Units 60503.and 60567 Seventh Mountain Drive, Bend, Deschutes County, Oregon belonging to Helm Investments; LLC shall be exempt from the pool , rental charge. (b) The employees of Widgi Creek LLC and their families shall be entitled to use the leased premises free of charge, XIX. Miscellaneous. (a) Interpretation. The parties have each contributed to the negotiation and drafting of this Agreement and have consulted or been able to Consult with their own legal counsel. The rule of construction that a written instrument is construed against the party preparing or drafting such written instrument shall specifically not be applicable to the interpretation of this Agreement. (b) Surrender at Expiration. On expiration of the Lease term, or earlier termination on account of default, Lessee shall deliver all keys to Lessor and surrender the Premises in first-class condition and broom clean. Alterations constructed by Lessee with permission from Lessor shall not be removed or restored to the original condition unless the terms of permission for the alternation so require. Depreciation and wear from ordinary use for the purpose for which the Premises are leased shall be excepted but repairs for which Lessee is responsible shall be completed to the last practical date before such surrender. (c) Alterations. Lessee shall not make any alterations to the Leased premises without Lessor's written consent. (d) Attorney Fees. If suit, action, or arbitration is instituted in connection with any controversary arising out of this Lease, the prevailing party shall be entitled to recover, in addition to cost, such sum as the Court or Arbitrator may determine reasonable as attorney fees at trial, on Petition for Review, and on Appeal. 4 SWIMMING POOL AGREEMENT (e) Entry for Inspection. Lessor shall have the right to enter on the Preinises at any time to determine Lessee compliance with this Lease, to make necessary repairs to the building or to the premises, or to show the premises to any prospective lessee or purchaser. (0 Interest on rent or other charges. Any rent or other payment required of Lessee by this Agreement shall, if not paid within 10 days after it is due, bear interest at the rate of 18% per annum. (g) Time of Essence. Time is of the essence of the performance of each of Lessee's obligations under this Lease. (h) Arbitration. .If any dispute arises between the parties under this Lease Agreement, either party may request Arbitration by contacting the Arbitration Service of Portland. Arbitration shall be conducted by the Arbitration Service of Portland and according to their rules. LESSOR: SWIMMJNG POOL AGREEMENT LESSEE: ZIASAI INIGIOM$ ritaocari 0,4 .‘co g1/4 By: t- • ENZ)~-alr Date: 0.0 • SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS This Settlement Agreement and Release of Claims is effective this ____ day of April, 2005 between the Elkai Woods Homeowners Association ("Plaintiff"), and, Yamazoe International, Inc., Dale W. Bernards, Bernards Golf LLC., Bernards LLC, Dale W. Bernards dba Elkai Management, Elkai Management LLC,, a dissolved Oregon limited liability company, Elkai Management LLC., Dale W. Bernards dba B&B Properties, Seventh Mountain Golf Village Water Company, Elkai Woods Fractional Homeowners Association, Dale W. Bernards dba Widgi Creek Realty, and Widgi Management, LLC. (collectively "The Defendants"). RECITALS 1. Elkai Woods Homeowners Association ("EWHOA") commenced suit against The Defendants asserting thirteen claims for relief arising out of the development of the Elkai Woods Townhomes planned unit development located in Deschutes County, Oregon (the "Pending Litigation"). 2. One of the prior parties to the litigation, the Widgi Creek Golf Club, Inc. is in bankruptcy. The assets of Widgi Creek Golf Club, Inc. were purchased by Bile1m, LLC, Bhelm, LLC and EWHOA have entered into a separate agreement concerning Bhelm, LLC's performance of certain improvements to the real property that were the subject matter of the Pending Litigation. 3. The parties desire to settle the Pending Litigation upon the terms and conditions set forth herein. AGREEMENT The parties agree as follows: Cash Payments. 1.1 Initial Payment. This Agreement is being executed contemporaneously with an agreement by Son -Rise Development, Inc., upon execution of both agreements, Son -Rise Development, Inc., shall pay to Elkai Woods Homeowners Association the sum of $10,000. This payment shall provide Son -Rise with a complete release as set forth in Section 3.1 below. Upon receipt of the initial payment, EWHOA shall (1) dismiss Son -Rise from the Pending Litigation with prejudice and without costs or expenses to either party; and (2) amend the Notice of Lis Pendens to remove Lots 78 and 83 Phase V. Page 1 of 9— SE'l 1LEMENT AGREEMENT AND RELEASE OF CLAIMS EW 00327 1.2 Subsequent Cash Payment. Upon the closing of the sale of the first three lots in Elkai Woods Phase VI, Plaintiff shall receive the sum of $65,000. Such sum shall be paid on or before April 30, 2005. The Les Schwab Profit Sharing Trust (the "Secured Party"), the holder of the first position security position on the property comprising Elkai Woods Phase VI ("Phase VI") has agreed in principal to permit the distribution of $65,000 from the closing of the sale of the first lots in Phase VI as set forth by the Secured Party's agent in a letter dated February 1, 2005. In connection with the Secured Party's agreement, it will execute irrevocable escrow instructions directing the title company to disburse the $65,000 from the closing directly to EWHOA. Bernards may seek an alternative source of finding of the $65,000. Upon receipt by Plaintiff of $65,000 from the defendants, Plaintiff shall cooperate with Bernards in releasing the irrevocable escrow instructions. 1.3 Use of Cash Payments. EWHOA may only use the settlement proceeds from the defendants for reimbursement of legal fees and costs incurred in connection with the pending litigation, for landscaping the common areas of the Elkai Woods development and for fixing the problem with street drainage on Elkai Woods Drive in front of Lots 52 and 53. Any landscaping performed by the EWHOA in Common Area 21 shall be done in accordance with a plan mutually acceptable to the EWHOA and the EWFHOA; provided however, EWFHOA agrees that EWHOA may: (1) replace the strip along Elkai Woods Drive currently covered by bark dust with sod; (2) take appropriate measures to alleviate the pooling and puddling of water in the section of Common 21 between Elkai Woods Drive and the open crater area and may landscape this section to conform with the landscaping along Elkai Woods Drive and on lots 83 Phase 111 and 84; (3) at a minimum take appropriate measures to reduce the pooling and puddling of water in the crater area, in particular on the eastern half of the crater area adjacent to Lots 83 Phase III through 86; and (4) plant trees and fescue as needed on the eastern half of the crater area adjacent to Lots 83 Phase III arid 84 — 86. 2. Performance Items. Defendants shall take all actions reasonable arid necessary to complete the items set forth in Section 2.1 through 2.12 on or before April 30, 2005. Once plaintiffs have received the $65,000 then time can be extended but no longer than June 1, 2005. To the extent that such items are outside of the party's reasonable control, the time for performance shall be extended to complete such item within a reasonable period of time. 2.1 Declaration Amendments, 2.1.1 Invalidity of November 21, 2002 Amendments. The parties (excluding Son -Rise) to the litigation shall submit to the Circuit Court a Stipulated Decree declaring the Declaration amendment recorded on or about November 21, 2002 as null and void. 2.1.2 Amendment of August 2001 Declaration. Plaintiff and Defendants shall submit to the Circuit Court a stipulated decree which amends the August 2001 Declaration of Covenants Conditions and Restrictions of both the Elkai EW 00328 Page 2 of 9 — SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS Woods Homeowners Association ("EWHOA") and the Elkai Woods Fractional Homeowners Association ("EWFHOA") in the following respects: I) All units in the EWFHOA portion of Elkai Woods shall be subject to the same nightly rental restrictions, provided an owner of a unit may subject such owner's unit to more restrictive rental restrictions through a deed restriction. 2) The use by Seventh Mountain Golf Village Water Company (the "Water Company") on Tract A of the proposed plat for Elkai Woods Phase VI for purposes of operating the Water Company is permitted by the Declaration of EWFHOA and EWHOA even if such activities could be considered to be a commercial or industrial use not otherwise permitted by the August 2001 Declaration. The owner of Tract A is permitted to lease such property to the Water Company under a lease agreement approved by the State of Oregon PUC notwithstanding the fact that the EWHOA has argued that such a lease is a commercial use under the Declaration. 3) Tract "A" as identified on the proposed plat for Elkai Woods Phase VI shall be subject to the Declaration and shall be subject to the following restrictions: (1) assessment by the EWFHOA as if it were a single undeveloped lot within the EWFIIOA development; (2) may be utilized as the site of a water company facility providing water service to Elkai Woods, the golf club and other surrounding property, whether part of Elkai Wood or not; (3) the owner or lessee of the water company site shall maintain the water company building(s) in a reasonable and attractive manner; (4) EWFHOA shall be responsible for suitable maintenance of the landscaping installed by the Water Company or the owner of Tract A; and, (5) in the event that the water company ceases operation for a period of six months as a water company, Tract A shall be deeded to the EWFHOA as additional common area. 4) The Lot 83 identified on the Elkai Woods Townhomes Phase V Plat and accessed from Seventh Mountain Drive shall be in the Elkai Woods Fractional Homeowners Association. The Lot 83 identified on the Elkai Woods Townhomes Phase III Plat and accessed from Elkai Wood Drive shall be a member of the Elkai Woods Homeowners Association. The parties shall take all steps necessary to amend the Associations' governing documents to reflect the respective association memberships. 2.1.3 Except for the specific relief set forth in the Decree, upon the completion of the items set forth in this Agreement and the payment of all sums provided for herein, the parties shall execute a form of general judgment dismissing the Pending Action with prejudice and without costs to any of the parties. 2.1.4 Upon the execution of this Agreement, the parties shall advise the court that the parties have entered into a conditional settlement of all of the claims and request that the court reset the trial date until June 21, 2005 to permit completion of the executory portions of this Agreement. EW 00329 Page 3 of 9 — SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS 2.2 Transactions and Actions from .1998 to 2001. The EWHOA was originally incorporated on February 14, 1997 as an Oregon not-for-profit corporation. The corporation was administratively dissolved on April 9, 1998. The Elkai Woods homeowners association continued to operate from 1998 until 2001 as an unincorporated association with Dale W. Bernards acting as its president. On or about April 26, 2002, the new articles of incorporation were filed for the EWHOA. The parties declare that it is their intention to affirm that all of the actions taken between April 9, 1998 and April 26, 2002 by Dale W. Bernards on behalf of the EWHOA are in fact actions of the EWHOA and that the dues collected and expenses incurred on behalf of the EWHOA were revenues and expenses of EWHOA and the remaining assets are those of EWHOA. Further, the original Bylaws and Declaration of EWHOA as amended in August of 2001 are deemed to be the legal and operative Bylaws of the EWHOA and Declaration for EWHOA and EWFHOA. 2.2.1 The parties wish to resolve all disputes between them as to past, present and future obligations relating to the collection of the dues, payments of expenditures, the spin-off of EWFHOA from EWHOA and the actions of EWHOA and upon performance of the obligations set forth herein, each party shall release the other from any liability in connection with any actions or dues collected, payments made and settlement of any and alt obligations between EWFHOA and EWHOA with respect to the period from inception in 1997 to April 26, 2002 when EWHOA was operated by Dale W. Bernards. 2.3 Easement for Electric Meter on Lot 13. Dale W. Bernards shall either secure an easement in favor of the EWHOA for the electric meter located on Lot 13 that provides electrical service to the gate located at the intersection of Elkai Woods Drive and Seventh Mountain Drive adjacent to Lot 13 or move the electric meter to a parcel of common area located within EWHOA or EWFHOA. 2.4 Easement for Periodic Lavine of Drainaae Hose. Dale W. Bernards or the current owner of Lots 1 — 9, shall secure a recordable perpetual easement in favor of the EWHOA, EWFHOA and the Golf Club (the intended joint owners of Common 17) for the periodic laying of a drainage hose between Lots 7 and 8 and across Common 3 as identified on the plat for Elkai Woods Phase VI for the, transfer of water from the upper pond located on Common 17 to the pond located adjacent to the 18th Fairway on the Widgi Creek Golf Course. 2.5 Easement for Gate Swine on Seventh Mountain Drive. Dale W. Bernards shall take steps necessary to grant an easement for the swing of the gate located at the intersection of Seventh Mountain Drive and Elkai Woods Drive so that there shall be a perpetual right for the gate to swing across Seventh Mountain Drive as the gate opens to the west. 2.6 Transfer of Common Areas and Roads. Defendants shall take all steps reasonably necessary to convey title to the common areas and roads to EWFHOA, EW 00330 Page 4 of 9— SE11LEMENT AGREEMENT AND RELEASE OF CLAIMS EWHOA and Bhehns LLC, as successor to the Widgi Creek Golf Course as more particularly set forth in legal description attached as Exhibit "A" and incorporated herein, Steps reasonably necessary to convey title include obtaining the signature for Elkai Woods Townhomes LLC where appropriate and necessary. These transfers shall be free and clear of any real property taxes owing, interest on taxes or penalties on unpaid taxes and shall be accompanied by an appropriate title insurance policy which confirms that no taxes, interest or penalties are owing. 2.7 Installation of Gate at Seventh Mountain Boundary. In addition to the other funds provided for herein, EWHOA will receive from escrow upon closing of this transaction and signature of all documents the sum of $3,476.00, which funds it shall use forthwith to order installation of the fire gate to be installed at the southern end of Elkai Woods Drive, adjacent to Common Areas 10A and 11 in accordance with the conditions for the recording of the plat for Elkai Woods Phase VI, but in no event later than June 1, 2005. The gate shall be installed by Mike's Fence in accordance with the specifications set forth in its bid dated August 3, 2004. 2.8 Lots 83 and 84. 2.8.1 Replat. Dale W. Bernards shall cause the replat or lot line adjustment for Elkai Woods Townhomes Phase III, Lot 83 and Elkai Woods Townhomes Phase III, Lot 84 to reflect the location of the duplex constructed upon these lots and other property. 2,8.2 Lots 83. There are two lots identified in the Plats for Elkai Woods Townhomes that are number Lot 83. The first is in Elkai Woods Townhonaes Phase III and the second is in Elkai Woods Townhomes Phase V. The Lot 83 in Elkai Woods Townhomes Phase V, located on Seventh Mountain Drive, shall be part of the Elkai Woods Fractional Homeowners Association and the Lot 83 in Elkai Woods Townhomes Phase III, located on Elkai Woods Drive, shall be part of the Elkai Woods Homeowners Association. 2.9 Letter from Seventh Mountain Water Company. Coincident with the signing of this settlement agreement, Dale W. Bernards shall deliver to the EWHOA the original signed copy of the letter attached as Exhibit 13 concerning the water meters and hook up fees previously faxed to Jerry Martin. 2.10 Letters from EWFHOA and Yamazoe to EWHOA Regarding Claims. Coincident with the signing of this settlement agreement, Dale W. Bernards shall deliver to the EWHOA the original of the letter(s) attached as Exhibit C releasing any claim that EWFHOA or Yamazoe rnight have against EWHOA for the matters addressed in Section 2.2.1 above. 2.11 Grant of Easement over portion of tax lot 1400 (15th Fairway area), Coincident with the signing of the settlement agreement, an easement over a portion of Tax Lot 1400 (area adjacent to the 15th fairway) for landscaping and maintenance as a EW 00331 Page 5 of 9 — SEI1LEMENT AGREEMENT AND RELEASE OF CLAIMS common area of EWHOA signed by Dan Andrew, Elkai Management LLC, and Dale W. Bernards on behalf of himself and any other party with the first right of refusal to purchase tax lot 1400 from Dan Andrew shall be delivered to the EWHOA and is attached hereto as Exhibit D. 2.12 Declarant Deliverables Pursuant to ORS 94.616. To the extent that Yamazoe has not already done so, it shall deliver to the Association all of the documents and items identified in ORS 94.616 required to be delivered by a Declarant to an Association at "Turn Over." Such documents shall be delivered on or before April 30, 2005. Such documents shall include, but not be limited to, as built plans for utilities and any other components of the subdivision for which as built plans are available. 2.13 Phase VI Plat. When the settlement agreements have been fully executed by all parties and EWHOA has signed the Phase VI Plat Map, EWHOA shall be paid the sum of $65,000.00 from the escrow, together with the additional sums set forth in this agreement. Forthwith, upon receiving those funds, EWHOA will revise its lis pendens to release all of the Phase VI property from the lis pendens. Upon completion of all performance items under this settlement agreement, EWHOA shall release its lis pendens with respect to all remaining properties which are subject to the lis pendens. In the event the County requires additional revisions to the Plat, EWHOA shall take all reasonable steps reasonably requested of it to facilitate the revisions and recording of the Plat. Prior to EWHOA signing the Plat, the Plat shall be revised to reflect that the homes to be constructed on Lots 10 and 11 shall be connected. Release of Claims. 3.1 Release of Son -Rise. Upon the payment of the $10,000 referred to above in paragraph 1.1, the parties, pursuant to a separate written agreement, shall release Son -Rise. 3.2 Defendants. Upon the performance of all of the items set forth in this Agreement, EWHOA shall release and forever discharge the Defendants from any and all claims that were or which could have been asserted in the Pending Litigation, 4. Failure of Conditions. In the event that a condition set forth herein does not occur on or before the performance date established by this Agreement, the EWHOA may elect to either (1) terminate any portion of this agreement that has not been fully executed; (2) grant such additional time as is necessary to complete performance; or, (3) seek specific performance of the terms and conditions remaining executory. Except as to defendant Son -Rise and as expressly provided herein, in the event that the EWHOA elects to terminate this agreement, the parties will proceed to trial on any unresolved issues and any and all damage claims, including any counterclaims or cross-claims any defendant may have against the EWHOA may be asserted in such proceeding. 5. No Admission of Liability. IT IS UNDERSTOOD AND AGREED that this is a settlement by compromise of disputed claims. The parties being released EW 00332 Page 6 of 9 — SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS expressly deny liability. It is understood and agreed that nothing contained in this Release shall be construed as an admission of liability. 6. Independent Counsel. THE UNDERSIGNED HEREBY WARRANT AND REPRESENT that they have relied upon their own independent judgment, belief and knowledge in entering into this Settlement Agreement and Release of All Claims, that they have obtained whatever advice and consultation they deem necessary in this matter and that they have not been influenced to any extent whatsoever in entering into this Settlement Agreement and Release of All Claims by any representations or statements made by the other parties to this Agreement or by any person representing said parties. 7 Entire Agreement. This document contains the entire agreement between the parties hereto, and the terms of this Agreement and Release are contractual and not a mere recital. 8. Counterparts. This Agreement and Release of All Claims may be signed in counterparts and facsimile signatures will be accepted in lieu of original signatures. 9. Successors. The terms of this Agreement and Release shall be binding upon the heirs, representatives, successors and assigns of each of the parties hereto. 10. Attorney Fees. If a suit, action, or other proceeding of any nature whatsoever is instituted in connection with this Agreement or to interpret or enforce any rights or remedies hereunder, the prevailing party shall be entitled to recover its attorneys' fees and all other fees, costs, and expenses actually incurred and reasonably necessary in connection therewith, as determined by the court at trial or on any appeal or review, in addition to all other amounts provided by law. 11. Governing Law. This Settlement Agreement shall be governed by and construed in accordance with the laws of the State of Oregon. 12. Negotiated Agreement. This Settlement Agreement shall not be construed as if it were prepared by one of the parties and shall be deemed to have been negotiated by and between the parties, who are separately represented by counsel. 13. Acknowledgments. We, the undersigned, have read the foregoing Settlement Agreement and Release of All Claims carefully, we fully understand its contents, and we fully understand that no other consideration or payment of any kind will be made and that there is no other agreement, promise or inducement of any kind for this Agreement other than is herein expressed. The undersigned represent and warrant that they have the authority to enter into this Agreement on behalf of the corporations and entities listed below their signatures. 14. Counterparts, This Agreement may be signed in counterparts. EW 00333 Page 7 of 9 — SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS APR -12-05 TUE 12:25 Pt1 CANTERBURY REAL ESTATE FAX NO. 5032741756 We, the undcrsigned, hereby execute the Settlement Agreement and Release of All Claims as our free act and decd. ELKA1 WOODS HOMEOWNERS YAMAZOE 1NTER.NATJOgINC. ASSOCIATION By: Title: Date: A • , 2005 ELK AI WOODS FRACTLONAL I -101\48 OWNERS AS CYCIATION izA.4" By.f. By: By: Date:April 2005 BERNARDS GOLF LLC Date: A ri 2005 DALE W. BERNARDS, dba ELKAI MANAGEMENT liy: Title: Date:April , 2005 ELKAI MANAGEMENT LCC A dissolved limited liability co By: Till Date:April 2005 BERNARDS LLC By; Title; Date:April , 2005 Date: April 2005 ELKAI MANAGEMENT LLC an active Oregon 1i1 ' d 1iab cornpany By: • Titlo; Date:April 2005 Pa 8 of 9 - SETILEM ENT AGREEMENT AND RELEASE CLAIMS P. 02 EW 00334 APR -12-05 TUE 12:25 PM CANTERBURY REAL ESTATE FAX NO, 5032741756 P. 03 DALE W. IIIW.NARDS dba SEVENTH MOUNTAIN GOLF VILLAGE & B PROPERT -S WATER COMPA By: Duo:And 2005 DALE W, BERNAI C By: TilIc: Date:Apri dba TY 2005 WIDGI MA AGEMENT, L By: Title: Mao:April , 2005 By: Title: Dato:Aprl, 2005 DALEDALEWBE Indi ' LLE ARDS Datc:April 2005 l'av 9 of 9 - SKr -ELEMENT AGREEMENT AND RELEASE OF CLAIMS EW 00336 EXHIBIT "A" The following is a list of the properties to be conveyed to the parties set forth below: 1. 100% Ownership to Elkai Woods Homeowners Association: Common 10 (Tax Lot 18 11 22 DA 06017) Common 10A (Tax lot 18 11 22 DA 06018) Common 11 Common 12 Conunon 13 Common 14 Conunon 15 Common 16 Common 19 Common 20 All of Elkai Woods Drive including Tract A, Tract C, Tract D, Tract F (both parts • tax lot # 18 11 22 DA 03800 arid #18 11 22 DD 01600). A recorded perpetual easement over the easterly 40 ft of Road Tract G (east end of Seventh Mountain Drive which contains the gate) that includes the swing of the gate over Seventh Mountain Drive as the gate opens to the west. Tax Lot 18 11 22 DA. 06000 2. 50% to be owned by the Golf Club, 25% by EWHOA and 25% by EWFHOA: Common 17 Road Tract B (Seventh Mountain Drive) 50% to be owned by EWHOA and 50% by EWFHOA: Conunon 21 EW 00338 r 1 2 3 IN THE CIRCUIT COURT OF THE STATE OF OREGON 4 FOR THE COUNTY OF DESCHUTES 5 6 ELKAI WOODS HOMEOWNERS ASSOCIATION, an Oregon non-profit 7 corporation, 8 Plaintiff, Case No. 03 -CV -0603 -AB STIPULATED GENERAL JUDGMENT 9 v. AND GENERAL JUDGMENT OF DISMISSAL 10 YAMAZOE INTERNATIONAL, INC., an Oregon corporation, et. al. 11 Defendants. 12 13 The remaining parties in the above captioned action stipulate to the following general k 14 judgment and general judgment of dismissal. 15 The Plaintiff in the above captioned matter, among other claims for relief, has requested 16 that the court enter certain declaratory relief. The parties to the pending action are in agreement 17 that the following matters should be adjudged by the Court. 18 1. The Covenants, Conditions and Restrictions for Elkai Woods Fractional 19 Homeowners Assn. recorded on November 21, 2002 in the Deschutes County Official Records 20 as Document Number 2002-65397 are null and void. 21 2. The Amended Declaration of Covenants, Conditions and Restrictions for Elkai 22 Woods Homeowners Assn. and Elkai Woods Fractional Homeowners Assn. recorded August 31, 23 2001 in the Deschutes County Official Records as Document Number 2001-43400 (the "August 24 31, 2001 Declaration") are the valid and existing documents for both the Elkai Woods 25 Homeowners Assn. and the Elkai Woods Fractional Homeowners Assn. 26 At4 Page 1 - STIPULATED GENERAL JUDGMENT AND GENERAL JUDGMENT OF DISMISSAL LANDYE BENNETT BLUMSTEIN 112 Aabngr d Lmv 1300 S.W. Fifth Avenue, Suite 3500 Portland. Oregon 97201 503.224.4100 503.224A133 (facsimile) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3. The Amended Bylaws of Elkai Woods Homeowners Assn. recorded August 31, 2001 in the Deschutes County Official Records as Document Number 2001-43401 are the valid and existing Bylaws for the Elkai Woods Homeowners Assn. The Bylaws recorded June 5, 1997 in the official records of Deschutes County as Document Number 97-19374, as amended by document dated August 13, 1997 and recorded on September 8, 1997 in the official records of Deschutes County as Document Number 97-32068 and further amended by document dated March 2, 1998 and recorded on March 6, 1998 in the official records of Deschutes County as Document 98-08760 are the valid and existing Bylaws of the Elkai Woods Fractional Homeowners Assn. 4. The August 31, 2001 Declaration is amended in the following respects: A. All units in the EWFHO portion of Elkai Woods shall be subject to the same rental restrictions. B. The use by Seventh Mountain Golf Village Water Company (the "Water Company") on Tract A of the proposed plat for Elkai Woods Phase VI for purposes of operating the Water Company is permitted by the Declaration of EWFHOA and EWHOA even if such activities could be considered to be a commercial or industrial use not otherwise permitted by the August 2001 Declaration. The owner of Tract "A" is permitted to lease such property to the Water Company under a lease agreement approved by the State of Oregon PUC notwithstanding the fact that the EWHOA has argued that such a lease is a commercial use under the Declaration. C. Tract "A" as identified on the proposed plat for Elkai Woods Phase VI shall be subject to the Declaration and shall be subject to the following restrictions: (1) assessment by the EWFHOA as if it were a single undeveloped lot within the EWFHOA development; (2) may be utilized as the site of a water company facility providing water service to Elkai Woods, the golf club and other surrounding property, whether part of Elkai Woods or not; (3) the owner or lessee of the water company site shall maintain the water company building(s) in a reasonable and attractive manner; (4) EWFHOA shall be responsible for the Page 2 - STIPULATED GENERAL JUDGMENT AND GENERAL JUDGMENT OF DISMISSAL LANDYE BENNETT BLUMSTEIN LLY "liking, a Lao 1300 S.W. Fifth Avenue, Suite 3500 Porthincl, Oregon 97201 501224.9100 503.224.4133 (fvoimik) 1 maintenance of the landscaping installed by the Water Company or the owner of, Tract "A"; and, 2 (5) in the event that the water company ceases operation for a period of six months as a water 3 company, Tract "A" shall be deeded to the EWFHOA as additional common area. 4 D. The Elkai Woods Homeowners Association, Inc. was originally incorporated on 5 February 14, 1997 as an Oregon not for profit corporation. The corporation was administratively 6 dissolved on April 9, 1998. The Elkai Woods Homeowners Association continued to operate 7 from 1998 until 2001 as an unincorporated association with Dale W. Bernards acting as its 8 president. On or about April 26, 2002, the new Articles of Incorporation were filed for the Elkai 9 Woods Homeowners Assn. The parties agree that it is their intention to affirm that all of the 10 actions taken between April 9, 1998 and April 26, 2002 by Dale W. Bernards on behalf of the 11 Elkai Woods Homeowners Association are in fact actions of the Elkai Woods Homeowners 12 Association and that dues collected and expenses incurred on behalf of the Elkai Woods 13 Homeowners Association were revenues and expenses of the Elkai Woods Homeowners r- 14 Association and the remaining assets are those of Elkai Woods. Homeowners Assn. 15 E. The Lot 83 mentioned on the Elkai Woods Townhomes Phase V Plat and 16 accessed from Seventh Mountain Drive shall be in the Elkai Woods Fractional Homeowners 17 Assn. Lot 83, identified on the Elkai Woods Townhomes Phase 111 Plat and access frqm Elkai c=:) 18 Woods Drive, shall be a member of the Elkai Woods Homeowners Assn, 19 5. The above captioned matter is dismissed with prejudice and vvraZilt Q fr ,1 1 rr — c:5 1-4 -P"' 20 either party. 21 DAIED this .7,0 day of 22 23 24 25 fl 26 / / / , 2005. schutes Cir Court Jud'e Page 3 - STIPULATED GENERAL JUDGMENT AND GENERAL JUDGMENT OF DISMISSAL LANDYE EENNETT BLUMSTEIN UP" /Wormy at Lao 1300 S.W. Pifth Avenue. Suite 3500 Portland, Oregon 97201 503.224.4100 503.224.4133 (facsimile) n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SO STIPLTLATED, . Cohen, OSB #85173 orney afjDfendants Grald A. Martin, OSB. #69112 Of Attorneys for Plaintiff Page 4 - STIPULATED GENERAL JUDGMENT AND GENERAL JUDGMENT OF DISMISSAL LANDYE BENNETT BLUMSTEIN LLP Alronrryr d La. 1300 S.W. Fifth Avenue, Suite 3500 Pordand, Oregon 97201 503.224.4100 503.224.4133 (facsimile) AGREEMENT PARTIES: Elkai Woods Homeowners Association ("EWHOA") Bhelm, LLC ("Bhehn") 1:711(Pi Woods Fractional Homeowners Association ("EWFHOA") RECITALS: 1. EWHOA and EWPHOA are two Separate homeowners associations within the Widgi Creek development and as such have certain interactions withMehn. 2. Bhelm was the successful bidder for purchase of the Widgi Creek Golf Club through the closed auction held by the Bankruptcy Trustee. 3 Bhelm and EWHOA and EWFHOA wish to agree upon certain matters which serve their mutual interests. NOW, TiaREFORE, in consideration Of their mutual promises, the parties agree as follows: 4. agrees tO place landscaping in front of the restroom located near the 14th tee to screen it from view from the EWHOA townhomes. This landscaping will be done in the spring of 2005. 5. Bhelm shall finish the landscaping Of common 18 and shall In/tint/fill the smell equipment buildingon that property in a suitable condition and milintain the landscaping around common 18 that adjoins the EWHOA property. This landscaping align be done in the spring of 2005. 1 of 3— AGREEMENT 6. Bhelm will ownP% of Seventh Mountain Drive between the golf clubhouse area and the swimming pool (Tract B, Tax Lot 181122DA 00100). EWHOA and EWFHOA will each own 25% of this same section of roadway. Maintenance and repair costs, excluding snow removal, will be shared based upon ownership percentage. Bhelm will not share in the cost of snow removal on Tract B. 7. Bhelm will own 50% of Common 17 (Tax Lot 181122 DA 01800). EWHOA and EWFHOA will each own 25% of Common 17. Bhelm agrees to maintain the landscaping around the lower pond and EWHOA and EWFHOA will share equally in the cost of rmaintaining the landscaping around the upper pond. However, EWHOA will be solely responsible for maintaining the landscaped area immediately adjacent to the EWHOA tovinhomes, Bhelm, EWHOA and EWFHOA shall split, based on ownership percentage, the costs for pump repairs, the utility costs for the ptunps, dam repair, and other costs for maintaining and operating the ponds. 8. EWHOA shall provide access for Bhelm to the rear of the pool area from Elkai Woods Drive for the convenience of Bhelm. Upon execution of this Agreement, EWHOA will provide Bhelm with an appropriate easement!eflecting Bhehn's right to this 9. Bhelm will not require that the townhome mailboxes be moved immediately, but rves theright to require these mailboxes be moved iathe future, depending upon Golf Course future projects. If it is necessary for these mailboxes to be moved, Bhelm is willing to look at other options for mailbox placement 2 of 3— AGREEMENT 10. In the event either party engages an attorney to enihroe this agreement or any cif its terms, whether or not a uiLoractionis commenced, it is agreed that the prevailing party shall be added to recover all expenaes reasonably incurred ' before, at Or after trial and on Appeal whether or net Xable as costs, including, without attorney fees, witness fees (expert and otherwise), Copying charges, deposition and other charges to be paid by the losing party to the prevarTmg party and to be fixed by the trial ar appellate courts. Rai Woods Homeowners Associadon ByL "fr Title: ''';P4 -C.% 4E4 Elkai Woods Fractional Homeowners Association BMWs, LLC After Recording Return to: Gerald A. Martin, Esq. Francis Hansen & Martin LLP 1148 NW Hill Street Bend, OR. 97701-1914 DESCHUTES COUNTY OFFICIAL RECORDS NANCY BLANKENSHIP , COUNTY CLERK ili; III 4.I 131111111111 om 11/30/2005 01:45:42 PM D -CCR Cntml Stm23 TRACY $35.00 $11.00 $10.00 $5.00 JUDICIAL AMENDMENT TO DECLARATION OF COVENANTS CONDITIONS & RESTRICTIONS FOR ELKAI WOODS FRACTIONAL HOMEOWNERS ASSN. RECORDED AS DOCUMENT NUMBER 2002-65397 AND ELKAI WOODS HOMEOWNERS ASSN. AND ELKAI WOODS FRACTIONAL HOMEOWNERS ASSN. RECORDED AS DOCUMENT NUMBER 2001-43400 The Declaration of Covenants Conditions & Restrictions for the Elkai Woods Homeowners Assn. and for the Elkai Woods Fractional Homeowners Assn. are amended as set forth in the attached certified copy of the Stipulated General Judgment and General Judgment of Dismissal entered in the Deschutes County Circuit Court in the matter of Elkai Woods Homeowners Association, an Oregon non-profit corporation v. Yamazoe International, Inc., an Oregon corporation et. al., Circuit Court Case No. 03 -CV -0603 - AB on the 23'.--iday of July, 2005. Elkai Woods Fractional Homeowners Assn. Elkai Woods Homeowners Assn. By: J,4-4 Secretary Secretary By: 2g5586*.-- zt By. /4/i President President 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CERTIFIED 0 Dated fris y of CIRCUIT 0 TOFThE 0 CLERK IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF DESCHUTES ELKAI WOODS HOMEOWNERS ASSOCIATION, an Oregon non-profit corporation, Plaintiff, v. YAMAZOE INTERNATIONAL, INC., an Oregon corporation, et. al. Defendants. Case No. 03 -CV -0603 -AB STIPULATED GENERAL JUDGMENT AND GENERAL JUDGMENT OF DISMISSAL The remaining parties in the above captioned action stipulate to the following general judgment and general judgment of dismissal. The Plaintiff in the above captioned matter, among other claims for relief, has requested • that the court enter certain declaratory relief. The parties to the pending action are in agreement that the following matters should be adjudged by the Court. 1. The Covenants, Conditions and Restrictions for Elkai Woods Fractional Homeowners Assn. recorded on November 21, 2002 in the Deschutes County Official Records as Document Number 2002-65397 are null and void. 2. The Amended Declaration of Covenants, Conditions and Restrictions for Elkai Woods Homeowners Assn. and Elkai Woods Fractional Homeowners Assn. recorded August31, 2001 in the Deschutes County Official Records as Document Number 2001-43400 (the "August 31, 2001 Declaration") are the valid and existing documents for both the Elkai Woods Homeowners Assn. and the Elkai Woods Fractional Homeowners Assn. Page 1 - STIPULATED GENERAL JUDGMENT AND GENERAL JUDGMENT OF DISMISSAL LANDYE BENNEIT BLUMSTEIN LLP Arstroy 1..s. 1300 5.W Fifth Menue, Sire 3500 Penland, Oregon 97201 !,U22441 150 5a3.2.24A133 Orat.sinvk) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 3. The Amended Bylaws of Elkai Woods Homeowners Assn. recorded August 31, 2001 in the Deschutes County Official Records as Document Number 2001-43401 are the valid and existing Bylaws for the Elkai Woods Homeowners Assn. The Bylaws recorded June 5, 1997 in the official records of Deschutes County as Document Number 97-19374, as amended by document dated August 13, 1997 and recorded on September 8, 1997 in the official records of Deschutes County as Document Number 97-32068 and further amended by document dated March 2, 1998 and recorded on March 6, 1998 in the official records of Deschutes County as Document 98-08760 are the valid and existing Bylaws of the Elkai Woods Fractional Homeowners Assn. 4. The August 31, 2001 Declaration is amended in the following respects: A. All units in the EWFHO portion of Elkai Woods shall be subject to the same rental restrictions. B. The use by Seventh Mountain Golf Village Water Company (the "Water Company") on Tract A of the proposed plat for Elkai Woods Phase VI for purposes of operating the Water Company is permitted by the Declaration of EWFHOA and EWHOA even if such activities could be considered to be a commercial or industrial use not otherwise permitted by the August 2001 Declaration. The owner of Tract "A" is permitted to lease such property to the Water Company under a lease agreement approved by the State of Oregon PUC notwithstanding 19 the fact that the EWHOA has argued that such a lease is a commercial use under the Declaration. 20 21 22 23 24 25 26 C. Tract "A" as identified on the proposed plat for Elkai Woods Phase VI shall be subject to the Declaration and shall be subject to the following restrictions: (1) assessment by the EWFHOA as if it were a single undeveloped lot within the EWFHOA development; (2) may be utilized as the site of a water company facility providing water service to Elkai Woods, the golf club and other surrounding property, whether part of Elkai Woods or not; (3) the owner or lessee of the water company site shall maintain the water company building(s) in a reasonable and attractive manner; (4) EWFHOA shall be responsible for the Page 2 - STIPULATED GENERAL JUDGMENT AND GENERAL JUDGMENT OF DISMISSAL LANDYE BEINNETT BLUMSTEIN LLP Aff atl-ar 1300 S.W. 14,11 Arens^ Suite 3500 Pardand, Oregon 97201 503.224.4100 503.224.4133 (Fecrinnle) f 1 maintenance of the landscaping installed by the Water Company or the owner of Tract "A"; and, 2 (5) in the event that the water company ceases operation for a period of six months as a water 3 company, Tract "A" shall be deeded to the EWFHOA as additional common area. 4 D. The Elkai Woods Homeowners Association, Inc. was originally incorporated on 5 February 14, 1997 as an Oregon not for profit corporation. The corporation was administratively 6 7 8 9 10 11 12 13 14 15 16 17 18 dissolved on April 9, 1998. The Elkai Woods Homeowners Association continued to operate from 1998 until 2001 as an unincorporated association with Dale W. Bemards acting as its president. On or about April 26, 2002, the new Articles of Incorporation were filed for the Elkai Woods Homeowners Assn. The parties agree that it is their intention to affirm that all of the actions taken between April 9, 1998 and April 26, 2002 by Dale W. Bernards on behalf of the Elkai Woods Homeowners Association are in fact actions of the Elkai Woods Homeowners Association and that dues collected and expenses incurred on behalf of the Elkai Woods Homeowners Association were revenues and expenses of the Elkai Woods Homeowners Association and the remaining assets are those of Elkai Woods Homeowners Assn. E. The Lot 83 mentioned on the Elkai Woods Townhomes Phase V Plat and accessed from Seventh Mountain Drive shall be in the Elkai Woods Fractional Homeowners Assn. Lot 83, identified on the Elkai Woods Townhomes Phase III Plat and accessedfrqu Elkai rn cr, cal c) Woods Drive, shall be a member of the Elkai Woods Homeowners Assn. with prejudice and wt (lasts 5) rim -4 r fl either party. 0 DATED this 2'0 day of 19 5. The above captioned matter is dismissed 20 21 22 23 24 25 26 /1/ /1/ , 2005. chutes Circ Page 3 - STIPULATED GENERAL JUDGMENT AND GENERAL JUDGMENT OF DISMISSAL LANDYE BENNETT BLUMSTEIN LLP Aron"): 1300 S.W. Fhb Arenrke, Snits 3500 Portland, Oregon 97201 503.224.4M 503.224.4133 (ficinele) 1 SO STIPULATED, 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 . Cohen, OSB #85173 orney ► D; fendants Grald A. Martin, OSB #69112 Of Attorneys for Plaintiff Page 4 - STIPULATED GENERAL JUDGMENT AND GENERAL JUDGMENT OF DISMISSAL LANDYE BENNETT BLUMSTEIN LLP warmyr r Lm 1300 S.W. Fifth Avenue, Suite 3500 Portland. Oregon 97701 503.224.4100 503.224.4133 (facto ik) CERTIFICATE OF TRUE COPY 2 I hereby certify that the foregoing STIPULATED GENERAL JUDGMENT AND GENERAL JUDGMENT OF DISMISSAL is a true, exact and full copy of the original thereof. DATED: July 14, 2005. 4 5 6 7 Gerald A. Martin, OSB #69112 Attorney for Plaintiff 8 CERTIFICATE OF MAILING, 9 I certify that I served the foregoing document(s) by depositing a true, full and exact copy thereof in the United States Post Office at Bend, Oregon, on July 14, 2005, enclosed in a sealed 10 envelope with postage thereon, addressed to: :0'*11 6 0 05 2,0 12 13 C 1) g 14 Stuart K. Cohen Attorney for Bernards Landye Bennett & Blumstein, LLP et: cr) 15 1300 SW Fifth Avenue, Suite 3500 Portland OR 97201 cn = I, 16 C CI clo 64 .1- 17 .14 — 18 19 20 22 23 24 25 erald A. Martin, OSB #69112 Attomey for Plaintiff — CERTIFICATE OF TRUE COPY AND MAILING Eliai Woods Property List 11/21/2005 ELKAI WOODS TOWNHOMES PROPERTY INCLUDED WITHIN THE SUBDIVISION FOR USE WHEN RECORDING EXHIBIT A & STIPULATED JUDGMENT 119 PARCELS Road Tract B Common 1, Phase VI Lot 1, Phase VI Lot 2, Phase VI Lot 3, Phase VI Lot 4, Phase VI Common 2, Phase VI Lot 5, Phase VI Lot 6, Phase VI Lot 7, Phase VI Common 3 Lot 8 Lot 9 Lot 10 Lot 11 Tract A Common 4 Lot 13 Lot 14 Lot 15 Lot 16 Common 5 Lot 17 Lot 18 Lot 19 Common 18 Road Tract A Common 17 Lot 45 Lot 46 Lot 47 Lot 48 Lot 49 Lot 50 Lot 51 Lot 52 Road Tract C Lot 53 Lot 54 Lot 55 Lot 56 Road Tract D Common 16 Property List for Recording.,ds DESCRIPTION Lot 57 Lot 58 Lot 59 Lot 60 Road Part of Tract F Common 20 Lot 61 Lot 62 Lot 63 Lot 64 Common 15 Lot 65 Lot 66 Common 14 Lot 67 Lot 83 Phase IV Lot 84 Lot 85 Lot 86 Road Tract E Lot 44 Lot 43 Lot 42 Lot 41 Common 21A Common 21 Lot 40 Lot 39 Lot 38 Lot 37 Lot 81 Lot 82 Lot 83, Phase V Road Tract G Lot 34 Lot 35 Lot 36 Common 9 Lot 80 Lot 79 Lot 78 Common 10 Common 10A Lot 20 Common 1, Phase III Lot 1, Phase III Lot 2, Phase III Lot 3, Phase III Lot 4, Phase III Common 2, Phase III Lot 5, Phase III Lot 6, Phase III Lot 7, Phase III Lot 8, Phase III Common 8 Lot 29 Lot 30 Lot 31 Lot 32 Lot 33 Lot 68 Common 13 Lot 69 Lot 70 Lot 71 Common 12 Lot 72 Lot 73 Lot 74 Common 19 Lot 75 Lot 76 Lot 77 Parcel DD1400 Common 11 Road Part of Tract F 11/9/2005 L(9 90(iC1-144051 `3 I AFTER RECORDING RETURN TO: Peter C. McKittrick Farleigh Wada & Witt PC 121 SW Morrison Street, Suite 600 Portland, OR 97204 Until a change is requested, all tax statements shall be sent to: Bhelm, LLC 11 Virginia Rail Sunriver, OR 97707 FIRST AMERICAN TITLE !NSURANCE COMPANY OF OREGON P.O. BOX 323 aEND OR 97709 DESCHUTES NANCY OLANICENSHI 0-0 ents1 Stm3 PAN $40.00 $11.00 $10.00 $5.00 TRUSTEE'S DEED KNOW ALL MEN BY THESE PRESENTS that the Bankruptcy Estate of Widgi Creek Golf Club, Inc., Case No. 04-40923-tmb7, now pending in the United States Bankruptcy Court for the District of Oregon, by and through its duly appointed and acting Trustee, Michael B. Batlan, herein called "Grantor," acting in his capacity as Trustee and not individually, by virtue of the power and authority given a bankruptcy trustee under the laws of the United States of America, for the consideration hereinafter stated, does hereby grant, bargain, sell, convey and release to Bhelm, LLC, herein called "Grantee," and unto Grantee's successors and assigns, all of the interest, if any, vested in the Debtor in the subject property described herein at the time of the filing of the above referenced bankruptcy case, and which passed to the Bankniptcy Estate by operation of law and became subject to administration of the Trustee, together with all after acquired title of the Bankruptcy Estate, if any, all tenements, hereditaments, appurtances thereunto belonging, or in any way appertaining, situated in the County of Deschutes, State of Oregon, described as follows: real property legally described on the attached Exhibit A. The Trustee's power and authority to dispose of such property of the Bankruptcy Estate originates in 11 U.S.C. § 363, and this transfer is made following notice to "interested persons" and an opportunity for hearing pursuant to such law. The Consideration for this transfer is $5,005,000.00. Grantor makes this conveyance without any warranties express or implied. This conveyance and release is intended to transfer all of the Bankruptcy Estate's interest, if any, in the subject property described herein, to the Grantee, in its existing condition, "AS IS," without any warranties express or implied. Grantee's recording of this Deed indicates Grantee's acceptance of this conveyance and release upon that basis. Page 1 - TRUSTEE'S DEED HAClient\Ballam1673251Trusleeslleed.doc Grantor covenants that this Deed is to be absolute in effect as pertains to the Bankruptcy Estate and conveys whatever right, title and interest the Bankruptcy Estate may have in the described property. This conveyance and release is not intended to operate as a mortgage, trust deed or security of any kind. THIS INSTRUMENT WILL NOT ALLOW USE OF THE PROPERTY DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS AND REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THIS PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED USES AND TO DETERMINE ANY LIMITS ON LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DEFINED BY ORS 30.930. THE PROPERTY DESCRIBED IN THIS INSTRUMENT MAY NOT BE WITHIN A FIRE PROTECTION DISTRICT PROTECTING STRUCTURES. THE PROPERTY IS SUBJECT TO LAND USE LAWS AND REGULATIONS, WHICH, IN FARM OR FOREST ZONES, MAY NOT AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIA 1E CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED USES AND EXISTENCE OF FIRE PROTECTION FOR STRUCTURES. IN WITNESS WHEREOF, Grantor has executed this Deed this 22nd day of December, 2004. STATE OF OREGON ) ss. County of Multnomah Mich. 1 B. Riatfan, Trustee for the Bankruptcy Estate of Widgi Creek Golf Club, Inc., United States Bankruptcy Court for the District of Oregon Case No. 04-40923-tmb7 This instrument was acknowledged before me on the 2 LI day of December, 2004 by Michael B. Batlan, Trustee on behalf of the Bankruptcy Estate of Widgi Creek Golf Club, Inc., United States Bankruptcy Court for the District of Oregon Case No. 04-40923-tmb7. OFFICIAL SEAL CYNTHIA MORRIS NOTARY PUBLIC -OREGON COMMISSION NO 358444 MY COMMISSION EXPIRES JUNE 5, 2006 Page 2 — TRUSTEE'S DEED H:\Client\Bat lam \673 25\TrusteesDced.doc l ' 1 e 1.i.c.0 NOTMZY PUBLIC in and for Oregon My Commission Expires: to -5 - 0(r) 0 EXHIBIT "A" PARCEL 1: A parcel of land located in a portion of Sections 14, 15, 22 & 23 Township 18 South, Range 11 East, Willamette Meridian, Deschutes County, Oregon, being more particularly described as follows: Beginning at a 2 1/2" brass cap marking the Southeast One -Sixteenth Corner of said Section 22; thence North 61° 55' 30" East a distance of 172.32 feet; thence North 45° 20 00" West a distance of 90.00 feet; thence North 77° 40 00" West a distance of 325.00 feet; thence North 28° 27' 00" East a distance of 106.00 feet; thence North 00° 22' 27" East a distance of 154.00 feet; thence North 22° 00' 00" East a distance of 615.00 feet; thence North 50° 30' 00" East a distance of 142.50 feet; thence North 35° 00' 00" West a distance of 160,00 feet; thence North 41° 45' 00" East a distance of 115.00 feet; thence South 43° 18' 00" East a distance of 198.00 feet; thence North 29° 21' 00" East a distance of 135.00 feet; thence South 40° 08' 00" East a distance of 129.00 feet; thence North 45° 4]' 00" East a distance of 58.00 feet; thence South 79° 45' 00" East a distance of 373.00 feet; thence North 72° 30' 00" East a distance of 51.36 feet; thence around a 321.04 foot radius curve left 258.38 feet (chord bears North 32° 09' 20" East, 251.47 feet); thence North 09° 10' 39" East a distance of 8.11 feet to a point on the exterior boundary line of the plat of Seventh Mountain Golf Village; thence along said exterior boundary line the following 21 courses and 11 curves: North 09° 10' 31" East a distance of 211.63 feet; around a 180.00 foot radius curve left 125.46 feet (chord bears North 10° 58' 26" West, 122.94 feet); North 30° 55' 33" West a distance of 172.35 feet; around a 520.00 foot radius curve right 68.92 feet (chord bears North 27° 09' 53" West, 68.87 feet); North 23° 22' 03" West a distance of 117,64 feet; around a 326.00 foot radius curve left 128.10 feet (chord bears North 34° 37' 27" West, 127.27 feet); North 45° 52' 51" West a distance of 86.65 feet; around a 114.00 foot radius curve left 44.07 feet (chord bears North 56° 57' 17" West, 43.79 feet); North 68° 01' 44" West a distance of 152.82 feet; around a 186.00 foot radius curve left 87.71 feet (chord bears North 81° 32' 19" West, 86.90 feet); South 84° 57' 02" West a distance of 34.69 feet; around a 454.50 foot radius curve right 166.94 feet (chord bears North 84° 29' 03" West, 166.00 feet); North 74° 00' 15" West a distance of 48.94 feet; around a 85.00 foot radius curve left 57.47 feet (chord bears South 86° 37' 33" West, 56.38 feet); North 16° 01' 01" East a distance of 62.34 feet; North 73° 58' 59" West a distance of 10.00 feet; North 16° 01' 01" East a distance of 10.30 feet; South 73° 59' 45" East a distance of 149 83 feet; around a 407.45 foot radius curve left 149.99 feet (chord bears South 84° 32' 31" East, 149.15 feet); North 84° 57' 02" East a distance of 50.42 feet; around a 260.50 foot radius curve right 214.09 feet (chord bears South 71° 21' 21" East, 208.12 feet); around a 35.00 foot radius curve left 59.99 feet (chord bears North 83° 06' 46" East, 52.91 feet); around a 346.33 foot radius curve left 48.39 feet (chord bears North 29° 57 17" East, 48.35 feet); North 69° 10' 13" West a distance of 174.94 feet; North 18° 52' 10" East a distance of 99.98 feet; North 33° 14' 37" West a distance of 53.33 feet; North 25° 05' 44" East a distance of 319.57 feet; North 33° 45 24" East a distance of 89 84 feet; North 20° 41' 20" East a distance of 87.47 feet; North 10° 21' 50" East a distance of 597.37 feet; North 01° 23' 10" East a distance of 185,65 feet to the southerly most corner of a boundary line adjustment (LL 94-55); thence along the westerly boundary line of said boundary line adjustment North 01° 23' 10" East a distance of 40.00 feet to the northwest corner of said boundary line adjustment; thence along the northerly boundary line of said boundary line adjustment South 85° 35' 49" East a distance of 83.75 feet to a point on the exterior boundary line o f said plat of Seventh Mountain Golf Village; thence along said exterior boundary line the following 3 curves and 23 courses: around a 624.13 foot radius curve right 87.19 feet (chord bears North 15° 22' 27" West, 87.12 feet); around a 232.50 foot radius curve right 145.32 feet (chord bears North 06° 21' 35" East, 142.97 feet); North 25° 34' 19" East a distance of 35.11 feet; North 66° 59' 59" West a distance of 145.18 feet; North 20° 44' 48" East a distance of 449.91 feet; North 12° 25' 20" East a distance of 323.46 feet; North 40° 10' 55" East a distance of 183.84 feet; South 75° 27' 22" East a distance of 60.02 feet; South 33° 34' 03" East a distance of 319.84 feet; South 38° 29' 18" East a distance of 430.83 feet; South 44° 14' 01" East a distance of 127.48 feet; South 15° 51' 18" East a distance of 140.10 feet; South 01° 30' 36" East a distance of 244.94 feet; North 71° 17' 50" West a distance of 373.69 feet; North 66° 16' 55" West a distance of 192.50 feet; South 69° 48' 13" West a distance of 94.55 feet; South 48° 57' 28" West a distance of 92.71 feet; South 22° 19' 11" West a distance of 86.03 feet; North 78° 32' 45" West a distance of 125.92 feet; around a 192.50 foot radius curve left 20.16 feet (chord bears South 03° 26' 04" West, 20.15 feet); South 78° 30' 55" East a distance of 119.33 feet; South 35° 40' 32" East a distance of 339.50 feet; South 65° 00' 53" East a distance of 129.97 feet; North 87° 35' 57" East a distance of 467.55 feet; North 24° 30' 37" East a distance of 72.90 feet; South 71° 48' 27" East a distance of 256.90 feet to the northerly most corner of a proposed boundary line adjustment (LL -96-3); thence along the northeasterly boundary line of said boundary line adjustment South 24° 19' 08" East a distance of 261.26 feet; thence along the southeasterly boundary line of said boundary line adjustment South 63° 37' 01" West a distance of 120.00 feet to a point on said exterior boundary line of said plat of Seventh Mountain Golf Village; thence along said exterior boundary line the following 1 course and 1 curve. South 63° 37' 01" West a distance of 59.83 feet; around a 320.00 foot radius curve right 19.93 feet (chord bears South 24° 28' 25" East, 19.92 feet) to the Westerly most corner of a boundary line adjustment (LL -96-74); thence along the Northwesterly boundary line of said boundary line adjustment North 63° 37' 01" East a distance of 174.70 feet; thence along the Northeasterly boundary line of said boundary line adjustment South 10° 10' 12" East a distance of 92.08 feet to a point on said exterior boundary line of said plat of Seventh Mountain Golf Village; thence along said exterior boundary line the following 14 courses and 3 curves: South 00° 34' 54" East a distance of 199.96 feet; South 70° 45' 51" West a distance of 133.50 feet; around a 120.00 foot radius curve right 51.20 feet (chord bears South 24° 47' 07" West, 50.81 feet); around a 80.00 foot radius curve left 47.19 feet (chord bears South 20° 07' 15" West, 46.51 feet); South 03° 13' 32" West a distance of 275.12 feet; around a 620.00 foot radius curve right 211.84 feet (chord bears South 12° 59' 43" West, 210.82 feet); South 56° 23' 52" East a distance of 234.73 feet; South 30° 09' 52" West a distance of 102.75 feet; South 51° 36' 08" West a distance of 315.24 feet; South 26° 40' 49" West a distance of 379.11 feet; South 24° 01' 07" West a distance of 621.52 feet; North 74° 17' 43" West a distance of 185.14 feet; North 07° 47' 02" West a distance of 149.94 feet; South 72° 55' 27" West a distance of 103.70 feet; South 87° 23' 48" West a distance of 101.04 feet; South 75° 13' 25" West a distance of 168.94 feet to a point on the southerly boundary line of a boundary line adjustment (LL -95-3); thence along said southerly boundary line South 75° 34' 01" West a distance of 39.98 feet to the westerly boundary line of said boundary line adjustment; thence along said westerly boundary line North 14° 42' 09" East a distance of 225.46 feet to a point on said exterior boundary line of said plat of Seventh Mountain Golf Village; thence along said exterior boundary line around a 35.00 foot radius curve left 55.53 feet (chord bears South 54° 09' 30" West, 49.88 feet); thence leaving said exterior boundary of said plat of Seventh Mountain Golf Village South 08° 19' 52" West a distance of 8.02 feet; thence around a 361.04 foot radius curve right 117.73 feet (chord bears South 18° 26' 25" West, 117.21 feet); thence South 62° 13' 04" East a distance of 10.00 feet; thence around a 371.04 foot radius curve right 347.78 feet (chord bears ' South 54° 38' 02" West, 335.19 feet); thence South 00° 00' 00" West a distance of 281.75 feet; thence South 48° 00' 00" West a distance of 85.00 feet; thence South 17° 40' 00" West a distance of 145.00 feet; thence North 90° 00' 00" West a distance of 64.00 feet; thence South 16° 00' 00" West a distance of 570.00 feet; thence South 00° 00' 00" West a distance of 360.00 feet; thence South 80° 45' 00" West a distance of 122.00 feet; thence North 16° 00' 00" West a distance of 206.00 feet; thence South 45° 30' 00" West a distance of 200.00 feet; thence South 18° 44' 00" East a distance of 350.00 feet; thence South 00° 00' 00" West a distance of 90.00 feet; thence South 85° 19' 39" West a distance of 231.00 feet to a point on the westerly boundary line of the Southeast one-quarter of the Southeast one-quarter (SEI/4 SEI/4) of said Section 22; thence along said westerly boundary line South 00° 21' 51" West a distance of 144.18 feet to the southerly most point of a dependent resurvey by the Bureau of Land Management (B.L.M.); thence along the easterly boundary line of said dependent resurvey the following 26 courses: North 74° 26' 44" East a distance of 312,92 feet; North 72° 43' 33" East a distance of 364.35 feet; North 05° 59' 07" West a distance of 162.05 feet; North 22° 08' 32" East a distance of 193.87 feet; North 04° 09' 08" East a distance of 459.23 feet; North 16° 22' 58" East a distance 01210.68 feet; North 40° 41' 44" East a distance 01626.97 feet; North 25° 12' 04" East a distance of 340.32 feet; South 62° 23' 52" East a distance of 204.10 feet; South 23° 44' 38" East a distance of 246.51 feet; South 72° 37' 28" East a distance of 104.60 feet; North 34° 09' 21" East a distance of 279.22 feet; North 19° 05' 03" East a distance of 309.91 feet; North 35° 24' 04" East a distance of 263.77 feet; North 52° 26' 45" East a distance of 272.64 feet; North 10° 31' 06" West a distance of 311.28 feet; North 35° 00 35" East a distance of 358.49 feet; North 05° 53' 24" West a distance of 362.88 feet; North 02° 31' 03" West a distance of 263.13 feet; North 00° 36' 25" West a distance of 252.22 feet; North 14° 22' 49" West a distance of 334.86 feet; North 30° 26' 55" West a distance of 355.08 feet; North 20° 03' 08" West a distance of 161.78 feet; North 21° 02' 53" West a distance of 800.08 feet; North 34° 18' 32" West a distance of 545.31 feet; North 39° 02' 39" West a distance of 256.10 feet; North 69° 20' 54" West a distance of 367.59 feet to the northerly most point of said dependent resurvey by the Bureau of Land Management (B,L.M.); thence along the westerly boundary line of said dependent resurvey South 59° 57' 34" West a distance of 39.98 feet to the easterly right-of-way line of the Cascade Lakes Highway (Century Drive); thence along said easterly right-of-way line the following three courses and one curve: South 15° 47' 26" West a distance of 1571.78 feet; South 15° 47' 29" West a distance of 2951 81 feet; around a 982.87 foot radius curve right 1013.24 feet (chord bears South 45° 20' 31" West, 968.97 feet); South 74° 51' 28" West a distance of 433,79 feet to a point on the north -south centerline of said Section 22; thence along said north -south centerline South 00° 38' 47" West a distance of 302.80 feet to the south center one -sixteenth (S1/16) corner of said Section 22; thence along the southerly boundary line of the Northwest One -Quarter of the Southeast One -.Quarter (NW1/4 SEI/4) of said Section 22 North 89° 53' 56" East a distance of 1344.74 feet to the "Point of Beginning", the terminus of this description. TOGETHER WITH: Beginning at a 5/8" iron rod marking secondary "Initial Point" of said plat of Seventh Mountain Golf Village on the interior boundary line of said plat; thence along said interior boundary line the following 23 courses and 10 curves: South 48° 02' 14" East a distance of 209.20 feet; around a 614.49 foot radius curve left 244.62 feet (chord bears South 15° 49' 45" West, 243.01 feet); South 04° 25' 30" West a distance of 79.56 feet; around a 343.43 foot radius curve right 133.02 feet (chord bears South 15° 33' 34" West, 132.19 feet); around a 80.00 foot radius curve right 91.07 feet (chord bears South 59° 14' 33" West, 86.23 feet); North 88° 09' 39" West a distance of 338.25 feet; around a 180.00 foot radius curve right 22.91 feet (chord bears North 84° 30' 51" West, 22.90 feet); North 80° 52' 03" West a distance of 22.87 feet; around a 35.00 foot radius curve right 54.98 feet (chord bears North 35° 52' 03" West, 49.50 feet); North 09° 07' 57" East a distance of 101.20 feet; around a 220.00 foot radius curve left 153.78 feet (chord bears North 10° 53' 30" West, 150.66 feet); North 31° 02' 09" West a distance of 172.34 feet; around a 480.00 foot radius curve right 63.67 feet (chord bears North 27° 08' 12" West, 63.63 feet); North 23° 22' 00" West a distance of 117.64 feet; around a 366.00 foot radius curve left 143.81 feet (chord bears North 34° 37' 24" West, 142.89 feet); North 45° 53' 01" West a distance of 38.92 feet; around a 35.00 foot radius curve right 50.40 feet (chord bears North 04° 37' 50" West, 46.15 feet); around a 386.33 foot radius curve left 26.09 feet (chord bears North 34° 41' 13" East, 26.08 feet); South 60° 14' 24" East a distance of 177.64 feet; North 22° 54' 20" East a distance of 609.85 feet; North 42° 48' 41" East a distance of 170.63 feet; North 50° 34' 33" East a distance of 427.93 feet; North 46° 28' 17" East a distance of 85.97 feet; South 86° 27' 32" East a distance of 85.00 feet; South 70° 47' 25" East a distance of 84.87 feet; South 29° 27' 51" East a distance of 339.98 feet; South 64° 12' 47" East a distance of 43.82 feet; South 80° 58' 09" East a distance of 78.18 feet; South 03° 13' 32" West a distance of 207.68 feet; North 82° 25' 34" West a distance of 79.58 feet; South 42° 53' 50" West a distance of 368.41 feet; South 39° 45 03" West a distance of 170.12 feet; South 46° 25' 59" West a distance of 255.80 feet to the "Point of Beginning'', the terminus of this description. PARCEL 2: Beginning at a 5/8" iron rod with a plastic cap stamped "HWA" marking the intersection of the Southeasterly right of way line of Seventh Mountain Drive and the Southwesterly right of way line of Elkai Woods Drive, said point bears North 12° 58' 30" East a distance of 994.59 feet from the Southeast One -Sixteenth comer of said Section 22; thence along said Southwesterly right of way line of said Elkai Woods Drive the following three courses and two curves: South 43° 07' 47" East a distance of 88.84 feet; South 37° 56' 07" East a distance of 157.69 feet; around a 180.00 foot radius curve right 107.29 feet (chord bears South 20° 51' 33" East, 105.71 feet); around a 180,00 foot radius curve right 52.12 feet (chord bears South 04° 30' 44" West, 51.94 feet); South 12° 48' 26" West a distance of 18.25 feet;thence leaving said Southwesterly right of way line South 89° 06' 18" West a distance of 141 27 feet; thence North 61° 56' 13" West a distance of 86.13 feet; thence North 71° 13' 58" West a distance of 120.55 feet to a point on said Southeasterly right of way line of said Seventh Mountain Drive; thence along said Southeasterly right of way line the following one course and one curve; North 24° 57' 56" East a distance of 225.66 feet; around a 330.00 foot radius curve right 90.61 feet (chord bears North 32° 49' 52" East, 90.32 feet) to the "point of beginning", the terrninus of this description. Together with the following easements: PARCEL 3: A non-exclusive easement for vehicular and pedestrian ingress and egress over and across Tracts A and B of SEVENTH MOUNTAIN GOLF VILLAGE, Deschutes County, Oregon, as set forth in Bargain and Sale Deed Recorded December 19, 1995 in Book 394 Page 843. PARCEL 4: Those certain non exclusive easement rights, which include the right of ingress and egress for maintenance of golf course facilities, and for players during the regular course of play on the golf course, as disclosed, in Surveyor's Notes, as Note #9, on the plat of Seventh Mountain Golf Village, subdivision, recorded December 20, 1990 in Book 7 of Plats at Pages 62 to 66 inclusive, records of Deschutes County, Oregon. PARCEL 5: Elkai Woods Golf Course Access Easement over the following described property: A parcel of land located in a portion of the Southeast One -Quarter (SE1/4) of Section Twenty-two (22), TOWNSHIP EIGHTEEN (18) SOUTH, RANGE ELEVEN (11), EAST OF TRE WILLAMETTE MERIDIAN, Deschutes County, Oregon, being more particularly described as follows: Commencing at the Southeast One -Sixteenth corner of said Section 22; thence North 61° 55' 30" East a distance of 172.32 feet; thence North 45° 20' 00" West a distance of 16.68 feet to the true point of beginning; thence North 05° 05' 07" West a distance of 26.06 feet; thence North 68° 30' 44" West a distance of 42.78 feet; thence South 45° 20' 00" East a distance of 59.22 feet to the true point of beginning, the terminus of this description. TOGETHER WITH A 20.00 wide strip of land, located in a portion of the Southeast One -Quarter (SE1/4) Section Twenty-two (22), TOWNSHIP EIGHTEEN (18) SOUTH, RANGE ELEVEN (11), EAST OF THE WILLAMETTE MERIDIAN, Deschutes County, Oregon, being more particularly described as lying 10.00 feet on each side of the following described centerline: Commencing at the Southeast one -sixteenth corner of said Section 22; thence North 61° 55' 30" East a distance of 149.75 feet to the true point of beginning; thence South 05° 05' 07" East a distance of 113.96 feet; thence around a 42.85 foot radius curve left 42.92 feet (chord bears South 33° 46' 50" East, 41.15 feet); thence South 62° 28' 32" East a distance of 48.56 feet; thence around a 40.39 foot radius curve right 40.77 feet (chord bears South 33° 33' 18" East, 39.06 feet) to a point, the terminus of this centerline, said terminus point bears South 60° 04' 41" East a distance of 265.10 feet from said Southeast one -sixteenth corner of said Section 22. DESCHUTES COUNTY OFFICIAL RECORDS 1_ J�' W0 MARY SUE FENNOLLON, COUNTY CLERK 'TA II1II1IlJIIIIj I IIIIIIIIIIIIII (1111 14 > 1 08/31/200103:08:37 PM D -COR Cnt42 Stn.S TIFFANY $110.00 $8.00 $11.00 $10.00 $5.00 $141,00 DESCHUTES COUNTY CLERK CERTIFICATE PAGE This page must be included if document is re-recorded. Do Not remove from original document. STATES TITLE COMPANY SE 3R0 ST. STE A-1 BEND, OREGON 97702 AMENDED DECLARATION of COVENANTS, CONDITIONS AND RESTRICTIONS for ELKAI WOODS HOMEOWNERS' ASSOCIATION, INC. and ELKAI WOODS FRACTIONAL HOMEOWNERS' ASSOCIATION, INC. Pursuant to ORS 94.600 and Articles 6.1 and 13.6 of the Declaration of Covenants, Conditions and Restriction for Elkai Woods Homeowners' Association, Inc., Yamazoe International, Inc. ("Declarant") adopts the following Amended Declaration for Elkai Woods Homeowners' Association, Inc. and Elkai Woods Fractional Homeowners' Association, Inc.: RECITALS Declarant is the owner of all the real property described in Exhibit "A" hereto attached, which includes Lots 1 through 86 depicted in the plat of Elkai Woods Townhomes, filed in the Plat Records of Deschutes County, Oregon (the "Property"). Declarant desires to create thereon a planned community to be known as Elkai Woods, with permanent roadways, utility installations and open spaces for the benefit of such community. Declarant desires to provide for the preservation arid enhancement of the properly values, amenities and opportunities in Elkai Woods and for the maintenance of the Property and improvements thereon, and to this end desires to subject the Property to the covenants. restrictions, easements, charges and liens hereinafter set forth, each and all of which is and are for the benefit of the Property and each owner of any Lot thereof. Declarant has deemed it desirable for the ellicient preservation of the values and amenities in such community to create two non-profit corporations, to which should be delegated and assigned the powers of owning, maintaining and administering the common property and facilities and administering and enforcing the covenants and restrictions and collecting and disbursing the assessments and charges hereinafter created, and promoting the recreation, health, safety and welfare of the residents. One such corporation (Elkai Woods HomeownersAssociation, Inc.) shall govern the full ownership Units on lots 45-77 and 83-86. The other such corporation (Elkai Woods Fractional Homeowners' Association, Inc.) shall govern the fractional interest Units on lots 1-44 and 78-82. The common property shall not include the pool facilities or the conference building, facilities and parking lot adjacent to the pool. NOW, THEREFORE, the Declarant declares that the Property shall bo hold, transforrod, sold, convoyod and occupiod subjoc1 to Iho provisions of (ho Oroyon Plannod community Act, ORS 94.550 of seq., and to the covonants, restrictions, easements, charges and liens hereinafter set forth in this Declaration. — Amended Declaration of Covenants, Conditions 8, Restrictions for Elkal Woods ARTICLE 1 DEFINITIONS 1.1 "Articles" shall mean the Articles of Incorporation for the full ownership Units 1i01-piolil euipuruliuri, Lllcui Wuudti 1 lot nuuwiruiu' / uuuui:rIir,n, Irr�:., :r:; iiluil Willi um Oregon Corporation Commissioner or the Articles of Incorporation for the fractional interest Units non-profit corporation, Elkai Woods Fractional Homeowners' Association, Inc., as filed with the Oregon Corporation Commissioner. 1.2 "Association" shall mean and refer to Elkai Woods Homeowners' Association, Inc., its successors and assigns or Elkai Woods Fractional Homeowners' Association, Inc., its successors and assigns. 1.3 "Bylaws" shall mean and refer to the Bylaws of the Association. 1.4 "Common Property" shall mean and refer to that area of land shown on the recorded plat of the Property, including any improvements thereon, which are intended to be devoted to the common use and enjoyment of the members and which land has been conveyed to the Association. The common property shall not include the pool and its facilities or the conference building, facilities and parking lot adjacent to the conference building and facilities. 1.5 "Declaration" shall mean the covenants, restrictions, and all other provisions set forth in this Declaration of Covenants and Restrictions for Elkai Woods. 1.6 "Declarant" shall mean and refer to Yamazoe International, Inc., its successors or assigns, or any successor or assign to all remainder of its interest in the development of the Property. 1.7 "General Plan of Development" shall mean the Declarant's general plan of development of the Property as approved by appropriate governmental agencies and as set forth in this Declaration which shall represent the total general plan and general uses of land within the boundaries of the Property, as may be amended from time to time. 1.8 "Living Unit" or "Unit" shall mean and refer to any portion of a structure situated upon the Property designed and intended for use and occupancy as a residence. 1.9 "Lot" shall mean and refer to each and any of Lots 1 through 86 of Elkai Woods. Provided, however, that "Lot" shall not include any Lot depicted on any plat of the Property which is designated for use as Common Property on such plat or declaration of Elkai Woods. 1.10 "Occupant" shall mean and refer to the occupant of a Living Unit who shall be either the owner, lessee or any other person authorized by the owner to occupy the premises. 2 — Amended Declaration of Covenants, Conditions & Restrictions for Elkai Woods 3 1.11 "Owner shall mean and refer to the record owner, whether one or more persons or entities, of the fee simple title to any Lot or a purchaser in possession under a land sale contract. The foregoing does not include persons or entities who hold an interest in any Lot merely as security for the performance of an obligation. 1.12 "Property" shall mean and refer to all real property, including Lots 1 through 86, the Common Property and all improvements located on the real property subject to this Declaration, as more particularly set forth on Exhibit "A" hereto attached, together with such additional Lots and Common Property as may, from time to time, be annexed to the Association. The Property shall not include the pool facilities or the conference building, facilities and parking Lot adjacent to the pool 1.13 "Rules and Regulations" shall mean and refer to the documents containing rules and regulations and policies adopted by the Board of Directors of the Association or the Architectural Review Board, as may be from time to time amended. 1.14 "Widgi Creek" shall mean and refer to that certain development in Deschutes County, Oregon where Elkai Woods is located. 1.15 "Elkai Woods" shall mean Lots 1 through 86 and all Common Property Included within the plat of EIkaI Woods. ARTICLE 2 PROPERTY SUBJECT TO THIS DECLARATION The real property which is and shall be held, transferred, sold, conveyed and occupied subject to this Declaration is located west of Bend, in Deschutes County, Oregon and consists of Lots 1 through 86 and the adjoining Common Property of Elkai Woods which is included within the legal description in Exhibit "A." The pool facilities or the conference building, facilities and parking Lot adjacent to the pool property shall not be so subjected. ARTICLE 3 GENERAL PLAN OF DEVELOPMENT 3.1 General. The Declarant has developed the Property with 86 buildable residential Lots on which each Lot one Living Unit is to be locutud. Tho Doclarant intends to construct Living Units in groups on adjacent platted Lots of Elkai Woods as Living Units and those Lots are pre -sold. Each such Lot that is developed will be developed with a single Living Unit. Any party walls or walls of Living Units will be constructed on the Lot line. Lots 1-44 and 78-82 will be sold via deeded, one-tenth interests and the remainder of the Lots/Units will be sold as deeded, full -ownership. 3 — Amended Declaration of Covenants, Conditions & Restrictions for Elkai Woods Through one or more supplemental declarations, the Declarant intends to create a planned community of up to 86 Lots. The Declarant reserves the right to re -plat any portion of Elkai Woods before it is annexed to the Association. 3.2 Ownership of Common Property. The Declarant shall convey the Common Property which has been annexed to the Association within sixty (60) days after 75% of the Lots have been conveyed to purchasers. Additional Common Property adjacent to Lots in Elkai Woods which are subsequently annexed will be conveyed to the Association within ninety (90) days after such annexation. In the event the Common Property is ever assessed for property tax purposes separately from the Lots, the Association, by and through its Board of Directors, shall take such steps as may be necessary to assess all Owners equally for their share of such taxes and to pay such property taxes on a current basis. 3.3 Improvements in the Common Property. The Common Property will be improved with driveways and landscaping. There will be a maximum of 86 Lots/Units when and if the proposed project is completed as contemplated. ARTICLE 4 USE RESTRICTIONS; ARCHITECTURAL CONTROLS AND MAINTENANCE RESPONSIBILITIES 4.1 General. 4.1.1 Governmental Restrictions. AH uses, occupancy, construction and other activities conducted on any Lot shall conform with and be subject to applicable zoning, use restrictions, setback requirements, construction and building codes of all local, state and federal public authorities. 4.1.2 Outdoor Storage. No outdoor storage of recreational vehicles, trailers or boats shall be allowed on the Common Property or outdoors on any Lot. 4.1.3 Garages. No garage shall be used for any purpose other than storage of automobiles, pick-ups, vans, sport utility vehicles and motorcycles, if such vehicles are intended and used for ordinary highway transportation of passengers, snowmobiles and golf carts. Additionally, fishing or pleasure boats may be stored in one parking space of a garage if it can be completely enclosed when the garage door is closed. A driveway shall not be used for regular parking by the occupants of a Living Unit. 4.1.4 Combination, Division. No Owner shall have the right to divide any Lot. Any Owner, upon compliance with the requirements of all applicable zoning, building and land use laws, regulations and ordinances, and the architectural requirements of the Declaration and any rules and regulations of the Association may construct (reconstruct or replace) one Living Unit on two or more Lots. 4 — Amended Declaration of Covenants, Conditions & Restrictions for Elkai Woods 4.2 Use. All Lots and Living Units shall be used for residential, recreation and vacation purposes only. No commercial, retail or industrial use shall be allowed on any Lot or in any Living Unit. Provided however, subject to compliance with applicable laws and any rules or regulations of the Association and Article 4.6 below, an owner may rent his or her Living Unit on a nightly, monthly or other basis, even though such rental activity is considered a commercial use. 4.3 Exterior Improvements. 4.3.1 Structures on Lots. Except as otherwise specifically provided in this Declaration, no fence, outbuilding, residential building, or other structure of any type shall be erected, altered, placed or permitted to remain on any Lot other than the original Living Units as originally constructed or replaced in a manner having a substantially similar appearance to the original Living Unit. 4.3.2 Common Property. No Owner shall construct or place any structure, material, planting, equipment or any object of any kind on any portion of the Common Property, unless granted written permission by the Board of Directors, and then only in strict compliance with such authorization. 4.3.3 Walls and Fences. The walls and/or fences in Elkai Woods shall not be altered without written consent of all Owners of Living Units in the building where the wall or fence is located and upon compliance with the provisions of Section 4.7. 4.4 Exterior Maintenance, Repair and Replacement. 4.4.1 Association Responsibilities. The Association shall perform all maintenance, repair and replacement of the exterior of Living Units on Lots, excluding doors and door frames, windows and window frames and skylights and skylight frames (if any), but including, without limitation, the following: painting or staining of siding, rain gutters, roofs and chimneys. The Association shall perform all maintenance, planting, pruning, mowing and cleaning of all lawns and landscaping on the Property, including, without limitation, all landscaping and lawns on Owners' Lots, excluding only so much of the same as is completely enclosed by a fence or courtyard on Owners' Lots. The Association shall be responsible for the maintenance, repair and replacement of sanitary sewer lines from the connection with the main service line owned and maintained by the service provider to a point within or under an Owner's Living Unit and within or under an Owner's courtyard and for water service lines up to the meter measuring water service to individual Living Units. 4.4.2 Owner Responsibilities. Each Owner shall perform all maintenance, repair and replacement of the interior of such Owner's Living Unit, and shall perform all maintenance, planting, pruning, mowing and cleaning of all lawns and landscaping on such Owner's Lot within areas enclosed by a fence or courtyard. Each Owner shall be responsible for the maintenance, repair and replacement of any improvements, or 5 — Amended Declaration of Covenants, Conditions & Restrictions for Elkai Woods materials located within the area on such Owner's Lot enclosed by a courtyard or fence. Each Owner shall be responsible for the maintenance, repair and replacement of sanitary sewer lines within and under an Owner's Living Unit and within or under an Owners courtyard. 4.5 Underground Utilities. No outdoor overhead wire or service drop for the distribution of electric energy or for telecommunication purposes nor any pole, antennae, satellite receiving dish, tower or other structure for independent reception, transmission or support of any of the above shall be erected, placed or maintained within the Property. /134) €31 -4 e>161 - tea -Pleb 4.6 Leases/Rentals. Owners of deeded,kr-tenth interest Units or the full ownership Units which include 1-44, 79, 80, 80G and 8 may authorize rental of their Units an a nightly basis, while owners of the deeded, full ownership Units will be restricted to a 30 -day minimum rental of their Units. The right to lease or rent a Living Unit for any period of time is subject to full compliance with applicable laws, the Articles, Declaration, Bylaws and Rules and Regulations of the Association and applicable local, state and federal laws and regulations. All aspects of leasing and renting of all Units (one-tenth and full ownership) shall be govemed and managed exclusively by a management company to be selected by the Declarant. All leases or rental agreements shall be in writing and shall be deemed to provide that their terms shall be subject in all respects to the provisions of this Declaration, the Articles, Bylaws and Rules and Regulations of the Association and that any failure by the lessee or rental to comply with the provisions of such documents shall constitute a default under said lease or rental agreement. The lessee's or renters use and enjoyment of the Common property under such lease or rental agreement shall be subject to suspension by the Board of Directors for any of the causes set forth elsewhere in this Declaration, including, without limitation, the nonpayment of assessments with respect to the Lot occupied by the lessee or renter. Any such lessee or renter shall be entitled to the use and enjoyment of the Common Property; provided, that the right to the use and enjoyment of the Common Property may not severed from the right to occupy a Lot, Unit and the improvement thereon, by means of a lease, rental agreement or otherwise. 4.7 Architectural Review Board. 4.7.1 Compositions. The Board of Directors of the Association shall serve also as an Architectural Review Board. A quorum for the Architectural Review Board action shall be a majority of its members. 4.7.2 Duties. It shall be the duty of the Architectural Review Board to regulate the external design, appearance, location and maintenance of all the Property and of improvements thereon, whether on a Lot or Common Property, and to regulate use of such Property as described in this Declaration. Upon conveyance of the first Lot to an Owner, the Architectural Review Board may adopt general rules to implement the 6 — Amended Declaration of Covenants, Conditions & Restriction for Elkai Woods purposes and interpret the covenants of this Article, including, but not limited to, rules not less restrictive than those contained in this Declaration to regulate animals and tenants, smoking within Units, storage and use of recreational vehicles, storage and use of machinery, use of outdoor drying lines, trash containers, planting, maintenance and removal of vegetation of the Property. 4.7.3 Approval Required. No outbuilding, fence, wall or other structure of any type shall be commenced, erected or maintained upon the Property, nor shall any exterior addition to, change in, painting or staining of, or alteration to any Living Unit, outbuilding, fence, wall, or other structure on the Property of any type be made until the plans and specifications showing the nature, kind, shape, height, materials, color and location of the same shall have been submitted to and approved in writing by the Architectural Review Board as to the harmony of external design, materials, color and location in relation to surrounding structures and topography. 4.7.4 Procedure. An Owner wishing to take any action requiring approval under this Article shall give notice of such proposed action to the Architectural Review Board, together with complete plans and specifications therefore. The Architectural Review Board shall meet to review the Owner's request within thirty (30) days of receipt and shall render a decision by the vote of a majority of Board Members present within forty-five (45) days of receipt. Interested Owners shall have an opportunity to comment on the request at all such meetings, which shall be open to all Owners. If the Architectural Review Board fails to render a written decision within the time allowed, the request shall be deemed to be approved. 4.7.5 Appeal. The decision of the Architectural Review Board under this Article (including any failure to approve or disapprove within the time allowed) shall be subject to appeal by any Interested Owner as set forth in this Article. Upon the payment of a reasonable fee established by the Architectural Review Board to cover administrative costs not to exceed Two Hundred Fifty Dollars ($250), any interested Owner may appeal the decision of the Architectural Review Board to the Association members. The appeal shall be made in writing and shall be filed with the Secretary of the Association within thirty (30) days of the decision of the Architectural Review Board. The Board of Directors shall call a special or ballot meeting to be held after ten (10) days notice and within thirty (30) days after the appeal has been filed with the Secretary of the Association. It shall require a vote of at least a majority of the votes to reverse or modify the decision of the Architectural Review Board. 4.7.6 Exemptions. The following actions by the following persons shall be exempt from the provisions of this Article: (a) The planting of any shrubs, flowers or other plants (excepting trees) by any Owner within an enclosed courtyard or fenced area on such Owner's Lot; and (b) Any act of the Declarant in implementing its General Plan of Development with respect to any Lot or any portion of the Common Property in the development, whether or not annexed to Elkai Woods or a part of the Association. 7 — Amended Declaration of Covenants, Conditions & Restrictions for Elkal Woods 4.7.7 Delegation. The Board of Directors may delegate the duties of the Architectural Review Board to a committee appointed by the Board composed of not less than three Owners. 4.8 Party Walls. 4.8.1 General Rules of Law to Apply. Each wall built as a part of the original construction of the Living Units or as a part of reconstruction pursuant to Article 10 of this Declaration upon the Property which divides Living Units, and which is placed on the divided line between the Lots, shall constitute a party wall, and, to the extent not inconsistent with the provisions of this Article, the general rules of law regarding party walls shall apply thereto. 4.8.2 Sharing of Repair and Maintenance. The cost of repair and maintenance of a party wall shall be shared equally by the Owners whose Living Units are divided by such wall. 4.8.3 Destruction by Fire or Other Casualty. If a party wall is destroyed or damaged by fire or other casualty, the provisions of Article 10 of this Declaration shall apply with regard to repair or reconstruction of such wall. 4.8.4 Weatherproofing. Notwithstanding any other provision of this Article, an Owner who by his or her negligent or willful act causes the party wall to be exposed to the elements shall bear the whole cost of furnishing the necessary protection against such elements. 4.8.5 Right to Contribution Runs With Land. The right of any Owner to contribution from any other Owner under this Article shall be appurtenant to the land and shall pass to such Owner's successors in title. 4.8.6 Arbitration. In the event of any dispute arising concerning a party wall, or concerning the obligations of the Owners or the Association pursuant to the provisions of this Article, each party shall choose an arbitrator, and the arbitrators so chosen shall choose one additional arbitrator, and the dispute shall be resolved by a majority of all the arbitrators. The parties shall equally share the costs of arbitration. ARTICLE 5 ASSOCIATION MEMBERSHIP AND VOTING RIGHTS 5.1 Members. Each Owner shall be a mandatory member of the Association. Membership in the Association shall be to appurtenant to, and may not be separated from, ownership of any Lot. Transfer of ownership of a Lot automatically transfers membership in the Association. Occupants and Owners shall be governed and controlled 8— Amended Declaration of Covenants, Conditions & Restrictions for Elkai Woods by this Declaration, the Articles, Bylaws, and rules and regulations of the Association and any amendments thereof. 5.2 Proxy. Each Owner may cast his or her vote by absentee ballot or pursuant to a proxy executed by the Owner. An Owner may not revoke a proxy given pursuant to this section except by actual notice of revocation to the person presiding over a meeting of the Association. A proxy shall not be valid if it is undated or purports to be revocable without notice. A proxy shall terminate one (1) year after its date, unless the proxy specifies a shorter term. 5.3 Voting Rights. The Association shall have one class of voting members. For full ownership Lots/Units, the Owners shall be entitled to one vote. For full ownership Lots/Units, when more than one person or entity owns a Lot, the vote for such Lot/Unit may be cast as they shall determine, but in no event will fractional voting be allowed. For the deeded one-tenth interest Lots/Units, each owner shall be entitled to a one-tenth vote. Each such Lot/Unit shall be accorded one vote based upon a majority (6/10) of the total votes cast within such Lot/Unit. The Declarant, its successors and assigns, shall have three votes for each Lot or Unit owned; regardless of whether the Lot is within the one-fifth interest section of full ownership section. Provided, however, that these special Declarant's voting rights shall cease upon the earlier of a date seven years from the recording of this Declaration or the conveyance by the Declarant of Lots or Units representing 75% of the total number of votes. Thereafter, the Declarant, shall be entitled to one (1) vote for each Lot or Unit owned. The total number of votes shall be equal to the total number of Lots annexed to the Property and subjected to this Declaration. 5.4 Procedure. All meetings of the Association, the Board of Directors, the Architectural Review Board, and Association committees shall be conducted in accordance with such rules of order as may from time to time be adopted by the Board of Directors. A tie vote does not constitute a majority or approval of any motion or resolution. ARTICLE 6 DECLARANT CONTROL 6.1 Interim Board and Officers. The Declarant hereby reserves administrative control of the Association. The Declarant, in its sole discretion, shall have the right to appoint and remove members of a three-member Interim Board of Directors to manage the affairs of the Association, and which shall be invested with all powers and rights of the Board of Directors. Notwithstanding the provisions of this Section, at the Turnover Meeting at least one (1) Director shall be elected by Owners other than the Declarant, even if the Declarant otherwise has voting power to elect all Directors. 9— Amended Declaration of Covenants, Conditions & Restrictions for Elkai Woods ( D 6.2 Transitional Advisory Committee. The Declarant shall form a Transitional Advisory Committee to provide for the transition of administrative control of the Association from the Declarant. Not later than the sixtieth (60th) day after the Declarant has conveyed Lots representing fifty percent (50%) of all votes in Elkai Woods, the Declarant shall call a meeting of Owners for the propose of selecting a Transitional Advisory Committee. The committee shall consist of three (3) members. The members shall, by a majority vote, elect two (2) members, and the Declarant shall elect one (1) member. The committee shall have reasonable access to such information and documents as the Declarant is required by law to make available. If the Declarant fails to call the meeting required under this section, any Owner may do so. 6.3 Turnover Meeting. The Declarant shall call a meeting for the purpose of tuming over administrative control of the Association from the Declarant to the members within one hundred twenty (120) days of the earlier of: 6.3.1 Date Certain. A date five (5) years from the date this Declaration is recorded; or 6.3.2 Based on Lots Sold. The date that Lots representing seventy-five percent (75%) of the total number of votes have been conveyed to persons other than the Declarant. The Declarant shall give notice of the meeting to each Owner as provided in the Bylaws. If the Declarant does not call the meeting required under this section, any Owner may do so. ARTICLE 7 COMMON PROPERTY 7.1 Obligations of the Association. Subject to the rights of Owners set forth in this Declaration, the Association shall be responsible for the exclusive management and control of the Common Property and any improvements thereon, and shall keep the same in good, clean, attractive and sanitary condition, order and repair, including, but not limited to, the removal of snow, trash and debris, the maintenance, cleaning and repair of the streets, parking areas, landscaped and unlandscaped land located on the Common Property. This obligation shall include, without limitation, the obligation for the maintenance, repair and replacement of sanitary sewer lines from the connection with the main service line owned and maintained by the service provider to a point within or under an Owner's Living Unit and within or under an Owner's courtyard and the obligation to maintain water service lines up to the meter measuring water service to individual Living Units. 7.2 Members' Easement of Enjoyment. Subject to the provisions of this Declaration, the Bylaws, and Rules and Regulations of the Association, every Owner 10 — Amended Declaration of Covenants, Conditions & Restrictions for Elkai Woods • , shall have a nonexclusive right and easement of enjoyment in and to the Common Property, which shall be appurtenant to and shall pass with the title to every Lot. 7.3 Extent of Members' Easements. The members' easements of enjoyment created hereby shall be subject to the following: 7.3.1 Subject to Rules and Fees. The right of the Association to establish reasonable rules and to charge reasonable assessments and fees for capital expenditures on the Common Property and the maintenance and upkeep of the Common Property and payment of all Association expenses. 7.3.2 Suspension of Member's Right. The right of the Association to suspend the right of an Owner or any occupant of a Lot to use the Common Property and facilities for any period during which any assessment against such Owner or occupant's Lot remains unpaid for more than thirty (30) days after notice of such nonpayment; the right of the Association to suspend the right of a member to use any Common Property for a period not to exceed sixty (60) days for any other infraction of the Declaration, Bylaws or the Rules and Regulations of the Association. Provided, however, that no such suspension pursuant to this subsection 3.2 shall deprive an Owner of access to his or her Lot. 7.3.3 Sale of Common Property. As provided by ORS 94.665, the right of the Association to sell, dedicate or transfer any portion of the Common Property or to create a security interest therein. Except as to the grant of easements for utilities and similar or related purposes, no such sale, dedication or transfer shall be effective unless approved by seventy-five percent (75%) of the votes of members and the Declarant. Provided further, if the Declarant's special voting rights have ceased, such sale, dedication or transfer (except for utility and similar easements) must be approved by seventy-five percent (75%) of the votes held by Owners other than the Declarant. 7.4 Declaration of Use. Any Owner may delegate his or her right of enjoyment to the Common Property and facilities to the members of the Owner's family and to a reasonable number of guests subject to general regulations as may be established from time to time by the Association and included within the Book of Resolutions. 7.5 Damage or Destruction of Common Property by Owner. In the event any Common Property is damaged or destroyed by an Owner or any of his or her guests, tenants, licensees, agents or members of his or her family in a manner that would subject such Owner to liability for such damage under Oregon law, such Owner does hereby authorize the Association to repair such damage; the Association shall repair damage in a good and workmanlike manner as originally constituted or as the area may be modified or altered subsequently by the Association in the discretion of the Association. The reasonable cost necessary for such repairs shall become a special assessment upon the Lot of the Owner who caused or is otherwise responsible for such damage. 11 — Amended Declaration of Covenants, Conditions & Restrictions for Elkai Woods ARTICLE 8 COVENANTS FOR MAINTENANCE ASSESSMENTS/SPECIAL ASSESSMENTS; AND COMMON PROFITS 8.1 Creation of the Lien and Personal Obligation of Assessments. The Declarant hereby covenants, and each Owner of any Lot by acceptance of a deed thereof, whether or not it shall be so expressed in such deed, is deemed to covenant and agrees to pay the Association (1) regular assessments or charges for common expenses, and (2) special assessments as provided in Section 8.7. All such assessments, together with interest thereon at the rate established from time to time by resolution of the Board of Directors and together with all other costs, fees, charges and fines allowed by law, shall be a lien and charge on the land and shall be a continuing lien upon the Lot against which each such assessment is made. Such lien shall exist and be executed, recorded and foreclosed in the manner provided by law. 8.2 General Assessments. 8.2.1 Purpose of Assessments. The assessments levied under this Article shall be used exclusively for the purpose of promoting the recreation, health, safety and welfare of the residents of the Property, and for the improvement and maintenance of such Property, including payment of premiums for insurance required under this Declaration and to fund a replacement reserve for those items the Association has maintenance responsibility, and for payment of any common operating expenses such as landscaping, maintenance, Association water, sewer and garbage collection, management services, legal and accounting services and the like. Neither the Association, nor any assessments of the Owners shall be used to engage in lobbying or to exert political influence. 8.2.2 Basis for Assessment. There shall be two levels of assessments against Lots dependent upon whether such Lots have been improved with a substantially completed Living Unit. (a) Unimproved Lots. Lots that have not been improved with a substantially completed Living Unit shall be assessed equally with other such Lots. The assessment against such unimproved Lots shall include only amounts attributable to the Common Property Reserve Account as set forth in Section 8.5, together with amounts attributable to the liability insurance premium covering the Common Property. The Declarant, at the Declarant's option, may accrue the Common Property Reserve Account portion of the assessment for an unimproved Lot until such Lot is conveyed to an Owner other than the Declarant as set forth in Section 8.5, but may not accrue the liability insurance portion. The Declarant may require the Owner to whom such Lot is conveyed to reimburse the Declarant for these amounts. In the alternative, the Declarant may assess itself on the Lots it owns at one-half the rate assessed against other Lots not owned by the Declarant. 12 — Amended Declaration of Covenants, Conditions & Restrictions for Elkai Woods (b) Improved Lots. Lots that have been improved with a substantially completed Living Unit shall be assessed equally with other such Lots. The assessment of Lots improved with substantially complete Living Units shall include the following items: (1) Expenses of administration. (2) Expenses of maintenance, repair or replacement of all improvements and buildings on the Common Property. (3) Expenses of maintenance, repair and replacement of the exterior of the Living Units for which the Association has responsibility, as more particularly set forth in the Declaration. (4) Any deficit in common expenses for any prior period. (5) Utilities for the Common Property and other utilities with a common meter or commonly billed, such as water and sewer. (6) The cost of any professional management desired by the Board of Directors. (7) Any other items properly chargeable as an expense of the Association. (8) Reserve items as more particularly set forth in Sections 8.5 and 8.6. All initial, general and special assessments shall be equally allocated among the Lots, except that improved and unimproved Lots shall be assessed in different manners as described herein. 8.2.3 Method of Assessment. The Board of Directors shall determine the annual assessment in accordance with the provisions hereof, provided, however, the annual assessment shall be sufficient to meet the obligations imposed by the Declaration. The budget shall be presented to Association and may be amended by a majority of the votes of each class of members. Both annual and special assessments must be fixed at a uniform rate for all Lots. The Board shall set the date(s) such assessment shall become due. The Board may provide for collection of assessments annually or in monthly, quarterly or semi-annual installments; provided, however, upon the default in the payment of any one or more installments, the entire balance of such assessment may be accelerated at the option of the Board and be declared due and payable in full, together with interest and attorneys fees and costs as hereinafter provided. Notwithstanding any other provisions of this Section 8.2, the general assessments of the Association may not be increased by more than twenty percent (20%) in any one year without approval of a majority of the Owners at a meeting at which a quorum exists, or a majority of the votes of all Owners, if the vote is taken by written ballot. 8.3 Date of Commencement of Annual Assessments. The general assessments with respect to the Lots shall commence at the time the Directors declare, but in no event later than the first day of the month following the conveyance of a Lot to an Owner other than the Declarant. Following such declaration, the pro rata annual assessment shall commence with respect to an improved Lot within the Property upon the substantial completion of a Living Unit on such Lot. 13 — Amended Declaration of Covenants, Conditions & Restrictions for Elkai Woods 8.4 Initial Assessment. Upon the closing of the sale of each Lot to an Owner other than the Declarant in Elkai Woods (regardless of whether such Lot has been improved with a Living Unit), each Owner shall contribute a sum equal to two (2) times the monthly assessment (as determined for Lots improved with Living Units) as a one-time contribution to the working capital of the Association, together with such other sums as may be called for by the sales agreement and Bylaws. 8.5 Common Property Reserve Account. The assessment against each Lot, regardless of whether it has been improved with a substantially complete Living Unit, shall include an amount allocated to a reserve account established for the purpose of funding replacements of those elements of the Common Property that will normally require replacement, in whole or in part, in more than three (3) and less than thirty (30) years. Amounts assessed with respect to reserves shall take into account the estimated remaining life of the items for which the reserve is created and the current replacement cost of such items. The assessments pursuant to this section shall accrue from the date of conveyance of the first Lot in the Property. The Declarant, at the Declarant's option, may defer payment of the accrued assessments for a Lot pursuant to this section until the date the Lot is conveyed to an Owner other than the Declarant, at which time such accrued assessments shall be paid to the Association. The Declarant may require the Owner to whom such Lot is conveyed to reimburse the Declarant for such portion of the assessment. 8.6 Living Unit Reserve Account/Operating Reserve. The assessment against each Lot that has been improved with a substantially completed Living Unit shall include an amount allocated to a reserve account established for the purpose of funding painting, staining and replacing those exterior portions of all Living Units on the Property which will require painting, staining, roofing or replacing in more than three (3) and less than thirty (30) years. Amounts assessed with respect to reserves shall take into account the estimated remaining life of the items for which the reserves are established and the current replacement cost of such items. The assessment under this section shall accrue from the date a Lot is improved with a substantially completed Living Unit. The Declarant, at the Declarant's option, may defer all accrued assessments until the Lot is sold, at which time such account assessment shall be paid to the Association. The Declarant may require the Owner to whom such Lot is conveyed to reimburse the Declarant for this portion of the assessment. The Board of Directors shall also fund a general operating reserve account by allocation and payment thereto monthly of an amount determined by the Board of Directors and assessed against the owner of each Living Unit. 8.7 Special Assessments. The Board of Directors shall have the power to levy special assessments against an owner or all owners in the following manner for the following purposes: (a) To correct a deficit in the operating budget by vote of a majority of the Board; 14 — Amended Declaration of Covenants, Conditions & Restrictions for Elkai Woods (b) To collect amounts due to the Association from an owner for breach of the owner's obligations under the Declaration, these Bylaws, or the Association's rules and regulations, by vote of a majority of the Board; (c) Upon vote of a majority of the Board of Directors, to make repairs or renovations to the common property and/or to those portions of the Living Units for which the Association has the responsibility of maintenance and replacement if sufficient refunds are not available from the operating budget or replacement reserve accounts; or (d) To make capital acquisitions, additions or improvements, by vote of at least seventy-five percent (75%) of all votes allocated to the Lots. 8.8 Effect of Non -Payment of Assessments: Remedies of the Association. In addition to any other remedies provided by law, the Association may bring an action at law against the Owner personally obligated to pay the same or foreclose a lien upon the Property. No such action or a judgment entered therein shall be a waiver of the lien of the Association. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Property or abandonment of his or her Lot. 8.9 Subordination of the Lien to Mortgages. The lien with respect to any assessment provided for herein shall be prior to any homestead exemption and all other liens and encumbrances on a Lot, except: (a) A first mortgage of record; and (b) A lien for real estate taxes and other governmental assessments or charges; and (c) Liens and encumbrances recorded before the recordation of this Declaration. Sale or transfer of any Lot shall not affect the assessment lien. However, the sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu thereof shall extinguish the lien of such assessments which became due prior to such sale or transfer. 8.10 Common Profits. Profits arising from any operation or from the sale of any Association asset shall be shared among the Owners in proportion to their liability for payment of assessments, i.e. equally, unless some Lots are unimproved. ARTICLE 9 DECLARANT'S SPECIAL RIGHTS Until the Living Units on all Lots on the Property have been constructed, fully completed and sold, with respect to the Common Property and each Lot on the Property, the Declarant shall have the following special rights: 9.1 Sales Office and Model. The Declarant shall have the right to maintain a sales office and model on one or more of the Lots which the Declarant owns. The 15 — Amended Declaration of Covenants, Conditions & Restrictions for Elkai Woods Declarant and prospective purchasers and their agents shall have the right to use and occupy the sales office and models during reasonable hours any day of the week. 9.2 "For Sale" Signs. The Declarant may maintain a reasonable number of "For Sale" signs and/or banners at reasonable locations on the Property, including, without limitation, the Common Property. 9.3 Declarant Easements. The Declarant has reserved easements over the Property as more fully described in Article 12 hereof. ARTICLE 10 DAMAGE AND DESTRUCTION 10.1 Insurance Proceeds Sufficient to Cover Loss. In case of fire, casualty, or any other damage and destruction, the insurance proceeds of the master policy, if sufficient to reconstruct the damaged or destroyed building, shall be applied to such reconstruction which shall commence within one hundred twenty (120) days of such damage, or as soon thereafter as proceeds are available. Reconstruction of the damaged or destroyed building, as used in this paragraph, means restoring the building to substantially the same condition in which it existed prior to the fire, casualty or disaster, with each Living Unit and the Common Property having the same boundaries as before. Such reconstruction shall be accomplished under the direction of the Board of Directors. 10.2 Insurance Proceeds Insufficient to Cover Loss. If the insurance proceeds are insufficient to reconstruct the damaged or destroyed building, the damage to, or destruction of, such building shall be promptly repaired and restored under supervision of the Board of Directors, using the proceeds of insurance, if any, on the building for that purpose and all the Owners shall be liable for assessment for any deficiency for such reconstruction, such deficiency to take into consideration as the Owner's contribution any individual policy insurance proceeds provided by such Owner. Such reconstruction shall commence within one hundred twenty (120) days of such damage, or as soon thereafter as proceeds are available. 10.3 Architectural Changes After Damage or Destruction. Notwithstanding all other provisions hereof, the Owners may, by an affirmative vote of a majority of both classes of members cause an amendment to be made to the Declaration and Bylaws so as to facilitate architectural changes that the Owners affected thereby and the Association deem desirable if, and only if, the partial or total destruction of the Property by fire, casualty or other disaster is so great as to require the substantial reconstruction of the whole of the building. Any such amendment of the Declaration and Bylaws shall be valid only upon (1) the recording thereof with the appropriate officer or Deschutes County; and (ii) the recording with that recording officer of the approval thereof of each mortgagee and each other lienholder of record having a lien against any part of the project, or building, affected by such amendment. 16 — Amended Declaration of Covenants, Conditions & Restrictions for Elkai Woods /7 . 10.4 Authority. The Board of Directors shall have sole authority to decide whether to repair or reconstruct a Living Unit that has suffered damage. ARTICLE 11 CONDEMNATION OF COMMON PROPERTY In the event that all or any portion of the Common Property is appropriated as the result of condemnation or threat or imminence thereof, the following rules and guidelines shall apply: 11.1 Representation by Association. The Board of Directors of the Association shall have the sole authority, right and duty to represent each of the Owners for the purpose of negotiating and contesting, if it deems so doing to be necessary or appropriate, any condemnation award offered by the condemning authority in question and may authorize expenditures and assessments to retain adequate counsel or other experts for such purposes. 11.2 Allocation of Condemnation Award. The Board of Directors of the Association shall allocate and distribute any condemnation award received by it with respect to the Common Property to the Owners in proportion to the diminution in fair market value incurred by them with respect to their respective Lots and improvements as a result of said condemnation. 11.3 Arbitration. In the event of any controversy by, among or between any Owner or Owners and the Board of Directors arising under this Section, each of the disputing parties shall choose one (1) arbitrator and such arbitrators shall choose one (I) additional arbitrator. The three (3) arbitrators shall resolve the controversy by majority vote and said decision shall be final, binding and unappealable upon the disputing parties. Any action or decision of the Board of Directors pursuant to this Section shall carry a rebuttable presumption of correctness for purposes of arbitration pursuant to this Section. The disputing parties each shall pay all the fees and expenses of the arbitrator designated by each of them and shall pay equally all fees and expenses of the third arbitrator. The disputing parties each shall pay their own expenses in connection with the arbitration. 11.4 Retention of Rights. No provision of this Section shall be construed as negating the right of the individual Owners to such incidental relief as the law may provide as a result of the condemnation of the Common Property. ARTICLE 12 EASEMENTS 12.1 Association's Easements. The Declarant hereby grants to the Association a blanket easement with respect to all Lots on the Property for the purpose of maintaining, repairing and replacing sewer and water lines located on the Lots and 17 — Amended Declaration of Covenants, Conditions & Restrictions for Elkai Woods . (9 carrying out the Association's responsibility to maintain the exterior of the Living Units. It shall be the obligation of the Association to maintain, repair and replace sewer and water lines from the main services lines to the building line of each Living Unit. The easement granted in this Section shall be perpetual and shall run with the land. 12.2 Declarant's Easements. The Declarant hereby reserves to itself a blanket easement over, upon, through and under the Property, including, without limitation, all Lots and Common Property, for all purposes reasonably required in carrying out the General Plan of Development or otherwise developing the real property within Widgi Creek owned by Declarant, including, without limitation, ingress and egress, the construction, alteration, completion and decoration of Living Units or other homes or improvements developed on the Property or on the real property within Widgi Creek owned by Declarant, the installation, maintenance, repair and replacement of all utility and service lines and systems serving Living Units or other homes or improvements developed on the Property or on the real property within Widgi Creek owned by Declarant," and the development and sale of additional property within Widgi Creek owned by Declarant, regardless of whether such additional property is subjected to this Declaration, and the sale of Lots and Living Units. The easement herein reserved shall include the right to store materials on the Common Property at such places and for such periods as may be reasonably required to effect the purposes for which this easement is reserved. The easement shall be perpetual and shall run with the land and shall be freely assignable by the Declarant. 12.3 Owners Easements. Declarant hereby grants to each Owner an easement over the Common Property and over other Lots for roof overhangs and other minor encroachments into the Common Property or other Lots arising from the Living Unit having not been constructed or having been reconstructed precisely on the Lot line. This easement shall be perpetual and shall run with the land. ARTICLE 13 GENERAL PROVISIONS 13.1 Records. The Board of Directors shall preserve and maintain minutes of the meetings of the Association, the Board and any committees. The Board of Directors shall also keep detailed and accurate financial records including individual assessment accounts of owners, the balance sheet and income and expense statements. Individual assessment account shall designate the name and address of the Owner or Owners of the Lot, the amount of each assessment becomes due, the amounts paid upon the account, and the balance due on the assessments. The minutes of the Association, the Board and committees, and the Association's financial records shall be reasonably available for review and copying by the Owners. A reasonable charge may be imposed by the Association for providing copies. 13.2 Indemnification of Directors, Officers, Employees and Agents. The Association shall indemnify any Director, officer, employee or agent who was or is a party 18 — Amended Declaration of Covenants, Conditions & Restrictions for Elkai Woods rg or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by the Association) by reason of the fact that he or she is or was a Director, officer, employee or agent of the Association or is or was serving at the request of the Association as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorney fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by said person in connection with such suit, action or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interest of the Association, and, with respect to any criminal action or proceedings, had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or with a plea of no contest or its equivalent, shall not of itself create a presumption that a person did not act in good faith and in a manner which he or she reasonably believed to be in, or not opposed to, the best interest of the Association, and, with respect to any criminal action or proceedings, had reasonable cause to believe his or her conduct was unlawful. Payment under this clause may be made during the pendency of such claim, action, suit or proceeding as and when incurred, subject only to the right of the Association, should it be proven at a later time that said person had no right to such payments. All persons who are ultimately held liable for their actions on behalf of the Association as a Director, officer, employee or agent shall have a right of contribution over and against all other Directors, officers, employees or agents and members of the Association who participated with or benefited from the acts which created said liability. 13.3 Enforcement. The Association and the Owners within the Property or any mortgagee on any Lot shall have the right to enforce all of the covenants, conditions, restrictions, reservations, easements, liens and charges now or hereinafter imposed by any of the provisions of this Declaration as may appertain specifically to such parties or Owners by any proceeding at law or in equity. Failure by either the Association or by any Owner or mortgagee to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of their right to do so thereafter. In the event suit or action is commenced to enforce the terms and provisions of this Declaration, the prevailing party shall be entitled to its attomey fees and costs in such suit or action to be fixed by the trial court, and in the event of an appeal, the cost of the appeal, together with reasonable attorney fees, to be set by the appellate court. In addition thereto, the Association shall be entitled to its reasonable attorney fees incurred in any enforcement activity taken to collect delinquent assessments, whether or not suit or action is filed. 13.4 Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall not affect the other provisions hereof and the same shall remain in full force and effect. 13.5 Duration. The covenants and restrictions of this Declaration shall run with and bind the land for a term of thirty-five (35) years from the date of this Declaration being recorded, after which time they shall be automatically extended for successive periods of 19 — Amended Declaration of Covenants, Conditions & Restrictions for Elkai Woods ten (10) years, unless rescinded by a vote of at least ninety percent (90%) of the Owners and ninety percent (90%) of the first mortgagees. Provided however, amendments which do not constitute rescission of the planned community may be adopted as provided in Section 13.6. Additionally, any such rescission which affects the Common Property shall require the prior written consent of Deschutes County. Provided, however, that if any of the provisions of this Declaration would violate the rule against perpetuities or any other limitation on the duration of the provisions herein contained imposed by law, then such provision shall be deemed to remain in effect only for the maximum period permitted by law or, in the event the rule against perpetuities applies, until twenty-one (21) years after the death of the last survivor of the now living descendants of President Bill Clinton. 13.6 Amendment. As provided by ORS 94.590 and except as otherwise provided in Sections 13.5 and 13.11, and the restrictions set forth elsewhere herein, this Declaration may be amended at any time by an instrument approved by not less than seventy-five percent (75%) of the total votes of each class of members that are eligible to vote. Any amendment must be executed, recorded and certified as provided by law. Provided, however, that no amendment of this Declaration shall effect an amendment of the Bylaws, the Articles of Incorporation without compliance with the provisions of such documents, and the Oregon Non -Profit Corporation Act. Provided further, no amendment affecting the general plan of development or any other right of the Declarant herein contained may be effected without the express written consent of the Declarant or its successors and assigns. 13.7 Rights of Mortgagees. Any holder of a first mortgage or equivalent lien on any Lot and/or the improvements located thereon, upon written request to the Board of Directors of the Association, shall have the right to: (a) Receive timely written notice of meetings of the Association; (b) Receive timely written notice of any proposed abandonment, termination or contraction of this planned Unit development; (c) Receive timely written notice of any material amendment of the Declaration or the Articles of Incorporation or Bylaws of the Association; (d) Receive timely written notice of any decision by the Association to terminate professional management and to assume self-management of the Property, if the Association previously has retained professional management services; (e) Inspect the financial records and similar documents of the Association at reasonable intervals during normal business hours; (f) Receive written notice of substantial damage to or destruction of any Lot and/or the improvements thereon or the Common Property and/or any improvements thereon; and (g) Receive timely written notice of any condemnation or eminent domain proceeding affecting the Common Property or any portion thereof. 13.8 Notice of Default by Mortgagor. The Association shall give each mortgagee written notification of any default by the mortgagor of such Lot in the 20 — Amended Declaration of Covenants, Conditions & Restrictions for Elkai Woods performance of such mortgagors obligations under the Declaration and Bylaws which is not cured within thirty (30) days. 13.9 Prior Consent of Mortgagees. The termination of the status of the Property as a planned community, or any material amendment to this Declaration or the Bylaws of the Association shall require the prior written consent of all first mortgagees or equivalent liens ori Lots and/or the improvements located thereon. 13.10 Release of Right of Control. The Declarant may give up its right of control in writing at any time by notice to the Association. 13.11 Unilateral Amendment by Declarant. The Declarant may amend this Declaration in order to comply with the requirements of the Federal Housing Administration of the United States, the Federal National Mortgage Association, the Government National Mortgage Association, the Federal Home Mortgage Loan Corporation, any department, bureau, board, commission or agency of the United States or the State of Oregon, or any other state in which the Lots are marketed and sold, or any corporation wholly owned, directly or indirectly, by the United States or the State of Oregon, or such other state, the approval of which entity is required in order for it to insure, guarantee or provide financing in connection with development of the Property and sale of Lots. Prior to the turnover meeting, no such amendment shall require notice to or approval by any Class A member. 13.12 Resolution of Document Conflicts. In the event of a conflict among any of the provisions in the documents governing Elkai Woods, such conflict shall be resolved by looking to the following documents in the order shown below: (1) Declaration of Covenants, Conditions and Restrictions; (2) Articles of Incorporation; (3) Bylaws; (4) Rules and Regulations. It is hereby certified that the foregoing Amendment to the Declaration of Covenants, Conditions and Restriction for Elkai Woods HomeownersAssociation, Inc., has been adopted by Yamazoe International, Inc., Declarant of Elkai Woods, and will be recorded in the Deed Records of Deschutes County for said Planned Community. Dated this /..2 day of , 20001. Yamazoe International, Inc. By i2 Dale Ber ards, yid -president 21 — Amended Declaration of Covenants, Conditions & Restrictions for Elkai Woods State of Oregon County of Multnomah ) ss. Personally appeared before me this €72?- day of OWN S k- , 2001, Dale W. Bernards and acknowledged that he is the vice-president orYamazoe International, Inc. and that he is authorized to execute the foregoing instrument on behalf of the corporation. OFF ICIAL SEAL. MICHELLE M STERN NOTARY PUBLIC -OREGON COMMISSION NO, 315086 COMMISSION EXPIRES SEPT. 7,2002 Noa Public for Oregon My Commission Expires: NO I- 22 - Amended Declaration of Covenants, Conditions & Restrictions for Elkai Woods DESCHUTES COUNTY OFFICIAL RECORDS NANCY BLANKENSHIP, COUNTY CLERK iIVi[VIU!JQJJOIUlUui11111112/29/2004 01:54:20 PM D-diMK Cnt■1 Stns3 PATI $65.00 111.00 110.00 $L,00 DESCHUTES COUNTY CLERK CERTIFICATE PAGE This page must be included if document is re-recorded. Do Not remove from original document. AFTER RECORDING MAIL TO: Michael Batlan PO Box 3729 Salem OR 97302 Send tax Statements to: BliELM, LLC 4412 SW 5th Camas, WR 99607 4 Ci 10V1 9C»c51 Below is an order of the court. 7 8 9 10 11 12 In re 13 14 15 16 17 18 19 20 21 22 23 24 25 26 U.S. Bankruptcy Judge CLERK, U.S. Ft tk":".7'.,r7:' • r. DISTRICT DEC 2 2 2004 LODGED REG.() PAID_ DOCKETED Certified to be a true and correct opy of original filed in my office. ted// — — en Dunn, Clerk, U.S. Bankruptcy Court IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF OREGON Case No. 04-40923-tmb7 Widgi Creek Golf Club, Inc., Debtor. ORDER AUTHORIZING SALE OF REAL AND PERSONAL PROPERTY FREE AND CLEAR OF LIENS This matter came before this Court on the Notice of Intent to Sell Real or Personal Property, Compensate Real Estate Broker, arid/or Pay any Secured Creditor's Fees and Costs, and Motion for Authority to Sell Property Free and Clear of Liens dated November 24, 2004 (the "Sale Motion") setting forth Trustee's intent to sell free and clear of liens real property located at 18707 Century Drive, Bend, Oregon and commonly known as the Widgi Creek Golf Club and further described on the legal description attached hereto as Exhibit 1 ("the Real Property") and certain tangible and intangible personal property (the "Personal Property"). A hearing on the Sale Motion was held on December 22, 2004. Michael B. Batlan, duly appointed Chapter 7 trustee ("Trustee") appeared. Peter C. McKittrick appeared on behalf of Trustee. Shawn P. Ryan appeared on behalf of the Debtor. Other appearances were duly noted on the record. Page 1 of 6- ORDER AUTHORIZING SALE OF PROPERTY FREE AND CLEAR OF LIENS 11 1Client'43atlam%67325\ Sale-Oodidoc FIRST AMERICAN TITLE 'NSURANCE COMPANY OF OREGON P.O. BOX 323 BEND. OR 97705 FARLEIGH We1DA & WITT PC Attorneys at Law 121 SW Morrison Street, Suite 600 Ponland, Oregon 97204-3136 Telephone: (503) 228-6044 Facsimile: (503) 228-1741 1 Based upon the evidence received at the hearing, the arguments of counsel, and 2 comments from parties in interest, the Court, being fully informed, makes the following findings 3 and conclusions: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 A. The Sale Motion is a core proceeding over which this Court has jurisdiction pursuant to 28 USC §§ 157(b) and 1334, and LR 2100-1. B. Such notice of the relief granted in this Order as is appropriate under the circumstances has been given and such opportunity for hearing with respect to the relief granted in this Order as is appropriate under the circumstances has been provided. C. The Purchase Price for the Real Property and Personal Property (i) was derived in good faith, through arms -length negotiations; (ii) is the highest and best available; and (iii) represents fair and reasonable consideration for the property of the estate that is being transferred. A reasonable opportunity has been given for others to make higher or better offers to purchase the assets, and no such offer was made to Trustee. D. With respect to each entity that has or asserts a lien on or other interest in the assets, such entity consents to the sale or could be compelled, in a legal or equitable proceeding, to accept a money satisfaction of such interest or such entity's interest is in bona fide dispute. Adequate protection of each such interest in the assets has been provided either under the provisions of this Order or because such interest is protected by property of the estate other than the assets. E. Bhelm, LLC ("Bhelm")is a good faith purchaser entitled to the benefits of 11 U.S.C. § 363(m). F. Upon and after closing under the Purchase and Sale Agreement, Bhelm shall not be deemed or considered (i) to be a successor to the Trustee or the Debtor herein, (ii) to have, de facto or otherwise, merged with or into the above -referenced Debtor, (iii) to be a continuation or substantial continuation of the above -referenced Debtor or its enterprises or (iv) to have assumed, nor shall Bhelm have any liability on or with respect to, any debt or liability FARLEIGH WADA & WITT PC Attorneys at Law 121 SW Morrison Street, Suite 600 Portland, Oregon 97204-3136 Telephone: (503) 228-6044 Facsimile: (503) 228-1741 Page 2 of 6- ORDER AUTHORIZING SALE OF PROPERTY FREE AND CLEAR OF LIENS H lienABailam1.67325hSale-Ord3.doc 1 (known or unknown) of the any of the Trustee, the above referenced Debtor or its bankruptcy 2 estate of any kind or nature whatsoever. 3 G. This Order shall be binding upon any successor trustee that may hereafter 4 be appointed in this case. 5 H. This Court shall maintain jurisdiction over this matter to implement and 6 enforce the terms and provisions of this Order, including any dispute, action or restriction 7 relating to the assets or the Purchase and Sale Agreement 8 1. Trustee received an overbid from Dutch Pacific Golf, Limited Partnership 9 ("Dutch Pacific"), and conducted an auction on December 22, 2004 commencing at 8:00 a.m. 10 THEREFORE, based upon the Sale Motion, the results of the auction, and the 11 representations of counsel made at the hearing, and the Court being otherwise advised in the 12 premises; it is hereby 13 ORDERED as follows: 14 1. Trustee is authorized to sell the Real Property (including the interests 15 acquired from co-owner Bemards LLC), together with the Personal Property to Bhelm for the 16 amount of FIVE MILLION FIVE THOUSAND AND NO/100THS DOLLARS ($5,005,000). 17 In the event Bhelm fails to close sale of the Real Property and Personal Property on or before 18 December 30, 2004, and Trustee does not elect to extend such closing date, Trustee is authorized 19 to either (1) seek an order from this Court requiring Bhelm to close the transaction on the price 20 and terms as set forth herein; or (2) close the sale of the Real and Personal Property to Dutch 21 Pacific at the last bid price submitted by Dutch Pacific. Trustee's election to close the sale to the 22 next highest bidder shall not waive any claim for damages Trustee may have against Bhelm for 23 failure to close on or before December 30, 2004. 24 2. Trustee is authorized to acquire the interests of co-owner Bernards LLC in 25 the Real and Personal Property for the sum of $129,000, payable as directed by Bemards from 26 closing. Page 3 of 6 - ORDER AUTHORIZING SALE OF PROPERTY FREE AND CLEAR OF LIENS H VCIiennBailismV, 325lSileAlrell oc FARLEIGH WADA & WITT PC Attomcys at Law 121 SW Morrison Street, Suite 600 Portland, Oregon 97204-3136 Telephone: (503) 228-6044 Facsimile (503) 228-1741 1 3. The Real Property and Personal Property sold to Bhelm pursuant to this 2 Order and the Purchase and Sale Agreement shall be free and clear of all liens, encumbrances, 3 claims and interests of all creditors and equity security holders of any kind or nature whatsoever, 4 including but not limited to those held or claimed by: 5 (a) Deschutes County Oregon Assessment; 6 (b) LBLM Investments, LLC ("LBLM"); 7 (c) Nihon Grand Prix Co., Ltd. ("Nihon"); 8 (d) Harling Electric, Inc. ("Harling"); 9 (e) Dunn Carney Allen Higgins & Tongue, LLP ("Dunn Carney"); 10 (f) Pat Studdard; 11 (g) Capital Factors; 12 (h) Braber Properties, LLC ("Braber"); 13 (i) The claim of Elkai Woods Homeowners Association as evidenced by 14 proceedings pending in Circuit Court for Deschutes County, Oregon, Suit No. 03v0603AB for 15 breach of contract; and 16 (j) The Notice of Pendency of Action filed by Elkai Woods Homeowners 17 Association on November 20, 2003 in Book 2003 page 79995. 18 4. From the proceeds of sale, escrow shall pay in the following order: 19 (a) All closing costs (including escrow and title fees); 20 (b) The sum of $129,000 to Bernards LLC (or as Bernards LLC may 21 direct) in full satisfaction of its and its affiliate's claims to the Real Property or Personal 22 Property; 23 (c) All real and personal property taxes owed to Deschutes County 24 Oregon together with interest thereon at the statutory rate until paid in full; 25 (d) The amount necessary to pay the secured claim of LBLM in full, 26 including advances by LBLM, but not including attorneys fees and costs which shall be held by Page 4 of 6- ORDER AUTHORIZING SALE OF PROPERTY FREE AND CLEAR OF LIENS licnilltodasn16732S1Sa Ic-Ord3 doc FARLEJGH WADA & WITT F'C Attorneys at Law 121 SW Morrison Street, Suite 600 Portland, Oregon 97204-3136 Telephone: (503) 228-6044 Facsimile: (503)228-1741 1 Trustee in an amount equal to 150% of the claimed amount pending application by LBLM and 2 approval by the Bankruptcy Court; 3 (e) The full amount of Harling's secured claim; 4 (f) The sum of $5,000 to Dunn Carney in full satisfaction of its claim 5 against the estate and its secured claim; 6 (g) The full amount of Pat Studdard's secured claim in full satisfaction 7 of his claims against the estate; 8 (h) The full amount of Capital Factor's secured claim; and 9 (i) The balance of the remaining proceeds shall be disbursed to 10 Trustee. Except for the amounts to be held by Trustee for LBLM's allowed attorney's fees and 11 costs, the remaining proceeds shall be retained by Trustee to be distributed in accordance with 12 Section 507 of the Bankruptcy Code. 13 5. The claimed liens of Nihon and Braber are hereby released, and such liens 14 shall not attach to the proceeds of sale. 15 6. The ten-day stay after entry of the Order pursuant to Bankruptcy Rule 16 6004(g) is hereby waived. This order is effective immediately. 17 # # # 18 PRESENTED BY: 19 FARLEIGH 20 By: Peter C. ckittrick, OSB #85281 21 Of Attorneys for Michael 13. Batlan 22 cc: Shawn P. Ryan 23 620 SW Main Street #612 Portland, OR 97205 24 Peter C. McKittrick 121 SW Morrison #600 Portland, OR 97204 Michael B. Batlan , United States Trustee 25 PO Box 3729 620 SW Main Street #213 26 Salem, OR 97302 Portland, OR 97205 Page 5 of 6- ORDER AUTHORIZING SALE OF PROPERTY FREE AND CLEAR OF LIENS HAClient18them‘67325'541s-Oractoc FARLEIGH WADA & WITT PC Attorneys al Law 121 SW Morrison Street, Suite 600 Portland, Oregon 97204-3136 Telephone: (503) 228-6044 Facsimile: (503) 228-1741 1 Robert A. Smejkal 696 Country Club Road 2 Eugene, OR 97401 3 Dutch Pacific Golf Limited Partnership 4 c/o Alex L Poust 1211 SW 5th #1600-1800 5 Portland, OR 97204 6 Jeffrey C. Misley 1000 SW Broadway, #1400 7 Portland, OR 97205 8 Phillip R. Muir 16100 NW Cornell Rd #200 Beaverton, OR 97006 10 J. David Bennett 1300 SW 5th Avenue #3500 11 Portland, OR 97201 12 Gerald Martin 1199 NW Wall Street 13 Bend, OR 97701 14 Peter A. Horovitz 33 Lono Avenue #470 15 Kahului, HI 96732 16 17 18 19 20 21 22 23 24 25 26 Page 6 of 6- ORDER AUTHORIZING SALE OF PROPERTY FREE AND CLEAR OF LIENS lamV7323k5ile -Ord) Akic FARLEIGH WADA & W177 PC Attorneys at Law 121 SW Morrison Street, Suite 600 Ponland, Oregon 97204-3136 Telephone: (503) 228-6044 Facsimile: (503) 228-1741 Ftelimmary Rrport 0-dff No: 7C61-393367 Pa.f 14 d 18 Real property in the County of Deschutes, State of Oregon, described as follows: PARCEL 1: A parcel of land located in a portion of Sections 14, 15, 22 & 23 Township 18 South, Range 11 East, Willamette Meriden, Deschutes County, Oregon, being more partiailarly described as follows: Beginning at a 2 1/2" brass cap marking the Saithecst One -Sixteenth Corner or said Section 22; thence North 61° 55' 30" East a cistance of 172.32 feet; thence North 45° 20 00" West a distance cf 90.00 feet; theice North 77040 00" Wet a distance 01 325.00 feet; thence North 28° 27' 00' EaA a stance 01 106.00 feet; thence North 00° 22' 27" East a distance 01 154.00 fed; thence North Z2° 00' 00' East a distance 01 615.00 feet; thence North 50° 30' 00' East a dstance 01 142.50 fed; thence North 3S° 00 00" Wed a distance 01 160.00 feet; thence North 41° 4.5 00" East a distance 01115.00 feet; thence South 43° 18 00" East a distance 011981)0 feet; thence North 29° 21' 00' East a distance 01 135.00 feet; thence South 40° 08' 00' East a distance 01 129.00 feet; thence North 45' 41' 00" East a distance of 58.00 fed; thence South 79045' 00" East a distance 01 373.00 fed; thence North 72° 30' 00" East a distanceof 5136 fed; thence around a 321.04 foct radius curve left 258.38 feet (chord bears North 32° 09' 20" East, 251,47 fed); thence North 09° 10' 39" East a distance 01 8.11 feet to a point on the exterior boundary line of the plat of Seventh Mountain Golf Village; thence along said exterior boundary line the following 21 courses and 11 curves: North 090 10' 31" East a distance 01 211.63 feet; around a 180-00 foct radius curve left 125.46 fed (chord bears North 10° 55' 26" Wed, 122.94 fect); North '3C° 55' 33" West a distance of 172.35 feet; around a i.20.00 foot radius alive right 58.92 feet (chord bears North 27° 09' 53" Wert, 68 87 fed); North 230 2? 03" West a distance cf 117.64 feet; around e 326.00 foct radius curve left 126.10 feet (chord bears North 34° 37' 27" West, 127.27 fed); North 45° 52' 51" West a distance of 136,65 feet; around a 114.00 fact radius curve left 44.07 fed (chord bears North 55° 57 17" West, 43.79 fed); North 68° 01' 44" Wet a distance 01 152.82 feet; around a 186.00 foct radius curve left 87.71 fed (chord bears North 81° 32' 19' Wet, 86.90 feet); South 84' 57 02" West a distance of 34 69 fed; around a 454,50 fort radius curve right 166.44 feet (chord bears North 84° 29' 03" Wet, 165.00 fed); North 74' 00' 15" West a distance 01 48.94 feet; around a 85.00 foct radius curve left 57,47 feet (chord bears South 86° 37' 33" West, 56.38 feet); North 16° 01' 01" East a distance of 62.34 feet; Ncrth 73° 58' 59' West a distance of 10.00 feet; North 16° 01' 01" East a dance cf 10.30 feet; South 73° 57 45" Eel a dance 01 149.83 feet; around a 407,45 foct radius curve left 149.49 fed (chord bears South 840 32' 31" East., 149.15 feet); North 84° 5702" East a dance 01 50.42 fed; around a 250.50 foci radius curve right 214.09 fed (chord bears South 71° 21' 21" East, 208.12 feet); around a 35 00 foct radius curve left 69.99 fed (chord bears North 83° 06' 46" East, 52.91 fed); around a 34633 foot radius curve left 48,39 feet (chord bears North 29° 57' 17" East, 48_35 feet); North 69° 10' 13" West a distance of 174.94 feet; North 18° 52' 10' East a dance 01 99.98 feet; Ncrth 33° 14' 37" West a distance of 5333 fed; North 25' 05' 44" East a distance 01 319.57 feet; North 33° 45' Z4" East a distance d 89.84 fed; North 20° 41' 20' East a ctance d 87.47 fed; Nath 10° 21' 50' East a distance of 597.37 feet; tiro Ante -con 7711a EXHIBIT PAGE Prdirrina-y Reprt Order No : 7051-393567 Page L5 d North 01° 23' 10" East a distancecf 185.65f to the southeiiy most comer cf a boundary line adjustment (LL 94-55); thence along the westerly boundary line d said boundary line adjustment Nath 01° 23' 10" East a distance c 40.00 fed to the northwest arner d said boundary tine adjustment; thenm along the northerly boundary line d said boundary Inc adjustment South 85° 35 49" East a dstance of 83.75 fed to a pant on the Werior boundary line of said plat of Seventh Mountain Golf Village; thence along said eacterior boundary lire the following 3 curyes and 23 Courses; around a 624.13 foot radius curve right 87.19 feet (drord bears North 1P 22' 27" West, 87.12 feet); around a 232.50 foot radius curve right 145.32 feet (chord bears North 06° 21 35" East, 142.97 (ed); North 25° 34 19" East a distance of 35.11 feet; North 65° 53' 59" West a distance of 145.18 fed; North 20° 44' 48" East a distance cf 449.91 feet; North 12° 25 20" East a dstarr 0(323.46 fed; North 40° 1(155' East a distance ef 183.84 fed; South 75027 22" East a distance 0(60.02 fed; South 33° 34 03" East a distance of 319.84 fed; South 38° 29' 18" East a distance 0( 430.83 feet; South 44° 1.4' 01" East a distance d 127.48 feet; South 150 51' 18" East a distance cf 140.10 fed; South 01' 30' 36" East a distance of 244.94 feet; North 71° 17 50" W distance cf 373.69 feet; North 66° 16' 55" West a distance cf 192.50 feet; South 69° 48' 13" We a distance cf 94.55 fed; South 48° 57 28" West a didanw cf 92.71 feet; South 22° 19 11" Wmt a distance 0( 86.03 feet; North 79° 32' 45' Wet a distance of 125.92 fed; around a 192.50 foot radius C4rve left 20.16 feet (chord bears South 03° 26' 04" Wed, 20.15 (ed); South 78030 55" East a distance d 11933 feet; South 35° 40' 32" East a distance cf 339.50 feet; South 65' 00' 53" East a distance of 129.97 fed; North 87° 35' 57" East a distance of 467.55 fed; North 24' 30' 37" East a distance 0( 72.90 feet; South 71° 43' 27" East a distance d 256.90 fed to the northerly most corner of a proposed boundary line adjustment (LL -96-3); thence along the northeaderly boundary Grre of said boundary line adjustment South 24° 19' 08" East a cbstanc.e. of 261.26 feet; thence along the southeasterly boundary line of said boundary hne adjustment South 63° 37' 01" We a distance cf 120.00 feet to a part on said exterior boundary line d said plat c1' Seventh Mountain Golf Village; thence along said exterior boundary line the fdlaving 1 COWS? and 1 Q.11Ve: South 63° 37' 01" West a distance cf 5983 feet; around a 320.00 foot radius curve right 19.93 fee (chord bears South 24° 28' 25" Ea, 19.92 feet) to the Werly mast comer of a boundary line adjustment (L1-96-74); them along the Northwesterly boundary line cf said boundary line adjustment North 63° 37 01." East a distance 0( 174.70 feet; thence along the Northeasterly boundary line of said boundary line adjustment South 10° 10' 12' East a distance 0( 92.08 feet to a point an said exterior boundary line et said pie of Seventh Mountain Golf Village; thence along said exteior boundary line the following 14 courses and 3 curves: Scuth 00° 34' 54" East a distance of 199.96 feet; South 70° 45 51" West a distance cf 133.50 fed; Fert, *polar Mc EXHIBIT PAGE OF Frelininzry Repot Crth- No.: 7061-393567 Poe, 16 al 18 around a 120.00 foot radius curve right 51.20 fed (chord bears South 243 47 07" West, 50.81 feet); around a 80.00 foct radius one left 47.19 fed (chord bears South 20° 07' 15" West, 46.51 fed); South 03° 13 32" West a distance of 275.12 feet; around a 620.00 foot radius airve right 211.84 feet (chord bears South 12° 59' 43" West, 210,82 feet); South 56° 23' 52" East a didance cf 234.73 fed; South 30° 09' 52"West a distance. cf 102.75 feet; South 51° 36' 08" West a dstance of 315,24 feet; South 26° 40' 49" West a dstance 0137911 feet; South 24° Or 07"Wt a dstance 01 621.52 feet; North 74° 17 43" West a distance of 185.14 feet; North 07° 47 02" West a dstance of 149.94 feet; South 72° 55' 27' West a distance a 103.70 feet; South 87° 23' 43" W a disband of 101.04 feet; South 75° 1.3' 25" West a distance of 168.94 feet to a point on the southerly boundary fine of a boundary line adjustment (LL -95-3); thence along said southerly boundary line South 75° 34' 01" West a distance 39,98 fed to the westerly boundary line of said boundary line adjustment; thence along said westerly boundary line North 14° 42' 09" East a distance 01 '225.46 fed to a point on said orterior boundary line of said plat a Seventh Mountain Golf Village; thence along said exterior boundary line around a 35.00 foot radius curve left 55.53 fed (chord bears .Soeth 54° 09' 30" West, 49.88 fed); thence leng said teealor boundary of said plat c Seventh Mountain Golf Village South 08° 19' 52" West a didarrce a 8,02 feet; thence around a 361.04 foot radius cove right 117.73 feet (chord bears South 13° 26' 25" West, 11721 fed); thence South 62° 13' 04" East a distance c 10.00 fed; thence around a 371.04 foot radius curve right 347.78 feet (chord bears South 54° 38' 02" West, 335.19 feet); thence South 00° 06 00" West a distance of 281.75 feet; thence South 48° 00' 00" West a distance of 85.00 feet; thence South 17° 40' 00" West a distance 01 145.00 feet; thence North 90° co OD" West a distance d 64.00 fed; thence South 16° 00' OW Wed a distance of 5/0.00 feet; thence_ South 000 00' 00" West a dstance of 360.00 feet; thence South 80° 45' 00" West a dance of 122.00 thence Nath 16° 00' 00" West a distance cf 206.00 feet; thence South 45° 30' 00" West a distance of 200.00 feet; thence South 18° 44' 00" Ent a dstance of 350.00 fed; thence South 000 00' 00" West a dstance <f 90.00 feet; thence South 85" 19' 39"Wee a dstance of 231.00 feet to a point on the westerly boundary line of the Southeast one -quarto of the Southeast one-quarter (SE1/4 5E1/4) of said Section 22; thence along said westerly boundary line South 00° 21' 51" West a dstance of 144.18 feet to the southerly mod point of a dependent resurvey by the Bureau et Land Management (8.1.,M ); thence along the easterly boundary tine of sad clecendoit reeurvey the fdlowing 26 courses: North 74° 26' 44" East a dtstance cf 312.92 feet; North 720 43' 33" East a distance 01364.35 feet; North 05° 59' 07" Wast a distance of 162,05 fed; North 22° 08' 32" Eat a distance d 193.87 feet; North 04° 09' 08" Ent a deter.= of 459.23 fed; Noth 16° 22' 58" East a distance a 210 68 feet; North 40° 41' 44" East a daance cf 625.97 feet; Noth 25° 1.2' 04" East a distance cf 340.32 feet; South 62° 23' 52" East a didan ci 204.10 feet; South 23° 44' 38" East a distance of 245.51. feet; South 72° 37 28" East a didance cf 104,60 fed; North 34° 09' 21" East a distance d 279.22 feet; North 19° 05' 03" Et a distance 01309.91 feet; North 35° 24' 04" East a didance cf 263.77 fed; North 52° 26' 45" East a distance of 272.64 feet; North 10° 31' 06" West a distance cf 311.28 feet; Noth 35° 00' 35 Et a distant d 358 49 fed; Th America] Td' EXHIBIT PAGE Preruninay Row: Crder No.: 7051-393567 Page 17 ri IS North 05° 53' 24" West a distance 362. ; North 02° 31: 03" West a distance el 263.13 feel; North 00° 36' 25' West a distance d 252.22 feet; Nath 14° 22' 49" Wet a distance d 334.86 feet; North 30° 26' 55" West a distance cf 355-08 fed; North 20° 03' ar West a distance of 161.78 feet; North 21° OZ 53" West a crtstance <1 800.08 feet; North 34° 18' 32' West a distance <1 545.31 feet; North 39° 02' 39" West a distanm of 256.10 feet; North 69020' 54' West a distance <1 367.59 feet to the northerly neat point of said dependent reurvey by the Bureau cf Land Management (B.LM.); thence along the westerly boundary line cf said dependent resurvey South 59° 57 34" West a distance <139.98 fed to the easterly right -el -way line of the Cascade Lakes Highway (Century Drive); thence along sad ealaly right-cf-way line the farming three courses and one curia South 15° 47 26' Wet a distance el 1571.78 feet; South 15° 47' 29" West a cestance <1 2951.81 fed; around a 962.87 foot radius curve right 1013.24 feet (diord bears South 450 20' 31" West, 968.97 feet); South 74° 51' 28' West a cilance <1 433.79 feet to a point an the north -south centerline cf said Section 22; thence along sad north -south centerline South 00° 38' 47" We a distance of 302.80 feet to the south meter one-sbieenth (S1/16) corner of mid Section 22; thence along the southerly boundary line et the Northwest One -Quarter of the Southeast One -Quarter (NW1/4 5E1/4) cf said Section 27. Wirth 89° 53' 56" East a distance of 1344.74 feet to the 'Point of Beginning', the terminus of this description. TOGETHER WMI: Beginning at a 5J8" iron rad marking secondary "Inkial Point" cf said plat cf Sevaith Mountain Golf Village on the interior boundary One of said plat; thence along said interior boundary line the folloeing 23 courses and 10 coves: South 4S0 02' 14" East a distance <1 209.20 feet; around a 614.49 foot radius curve left 244.62 feet (diord bears South 150 47 45" West, 243.01 feet); South 04° 25' 30" West a dstance cf 79.56 fed; around a 343.43 foe& radius curve right 133.02 feet (chord bears South 15° 33' 34" We, 132.19 feet); around a 80.00 foci radius curve right 91.07 feet (chord bears South 59° 14' 33' West, 66.23 fed); North 88° 09' 39" West a distance <1 338.25 feet; around a 180.00 foot radius curve right 22.91 feet (diord bears North 84° 30' 51" Wel, 22.90 feet); North 80° 52' 03" Wcst a distance <1 22.8) feet; around a 35.00 fact radius curve right 54.98 feet (chord bears North 35° 52' 03' West, 49.50 feet); Nath 09° 07 57" East a distance of 10120 let; around a 220.00 foot radius curve left 153.78 fed (chord bears North 10° 53' 30" West, 150.66 fed); North 31° 02' 09" West a distanm cf 17234 feet; around a 480.00 foct radius air.'e right 63.67 fid (chord bears North 27° 08' 12" West, 63 63 fed); North 23° 22 00' West a distance. of 117.64 fed; around a 366.00 foot radius curve left 1.43.81 fed (chord bears North 34° 37 24" West, 142.89 feet); North 45° 53 01' Wet a distance of 38.92 fed; aroued a 35.00 foeadius curve right 50.40 feet (chord bears North 04° 37 50" Wel, 46.15 feet); around a 38633 foot radius verve left 26.09 feet (chord bears North 34° 41: 13" East, 26.08 feet); South 60° 14' 24" East a distance of 177,64 fed; North 22° 54' 20' East a distance el 609.85 fed; North 42° 48' 41" East a distance d 170.63 feet; North 50° 34 33" East a dance <1 427.93 feet; North 46° 28' 1.7" East a distance of 85.97 feet; South 86° 27' 32" East a distance <1 85.00 f -t; South 70° 47 25" East a distance <1 84.87 feet; PIMA/WY:di MC PAGE P.trrinaj Report Order' No.: 7061-393567 Pag: 18 or IS South 29° 27' 51" East a distance cf 339.98 feet; South 64° 12' 47" East a distance cf 43.82 feet; South 80° 58' 09" East a distance of 78.18 fejt; South 03° 13' 32" West a distance of 207.68 ft; North 82° 25' 34" Wcst a distance cf 79.58 fed; South 42° 53' 50" West a distance cf 368.41 feet; South 39° 45' 03"Wet a dstance of 170.12 feet; South 46° 25' 59" West a diance of 255.80 fea=t to the "Point of Beginning', the terminus of this description. PARCEL 2: Beginning at a 5/8" iron rod with a plastic cap s<emped "HWA" marking the intersection of the Southeasterly right of way line cf Seventh Mountain Drive and the Southwesterly right of way line of Elkai Woods Drive, said point bears North 12° 58' 30" East a distance of 994.59 feet from the Southeast On- Sixteenth comer of said Section 22; thence along said Southwesterly right of way line d said Elkai Woods Drive the following three courses and two curves: South 43° 07 47" Ea,r a distance cf 88.84 feet; South 37° 56' 07" East a distance cf 157.63 fed; around a 180.00 foct radius curve right 10729 feet (chord bears South 20° 51' 33" East, 105.71 fest); around a 180.0; foot radius curve right 52.12 feet (chord bears South 04° 30' 44" West, 51.94 feet); South 12° 48' 26" West a distance cf 18.25 fest; thence leaving said Southwesterly right of way line South 89° 06' 18" West a distance of 141.27 feet; thence North 61° 56' 13" West a distance. cf 86.13 feet; then. North 71° 13' 58" West a distance of 120.55 feet to a point on said Southeasterly right of way line of said Seventh Mountain Drive; thence along said Southeasterly right of way line the following one course and one curve; North 24° 57' 56" East a distance of 225.66 feet; around a 330.00 foot radius curve right 90.61 fed (chord bear North 32° 49' 52" East, 90.32 feet) to the "point of beginning", the terminus of this description. Tax Pard Number. 189852 and 197678 F.rstAmmCat Tice EXHIBIT / PAGE S OF FORM B9B (Corooration/Partnershio-No Asset) (7/14/04) UNITED STATES BANKRUPTCY COURT DISTRICT OF District of Oregon IA Chapter 7 bankruptcy case conceming the debtor(s) named below was FILED ON 10/14/04. U.S. BANKRUPTCY COURT DISTRICT OF OREGON FILED October 20, 2004 Clerk, U.S. Bankruptcy Court BY 1Jr DEPUTY You may be a creditor of the debtor. This notice lists important deadlines. You may want to consult an attomey to protect your rights. All documents filed in the case may be inspected at the bankruptcy clerk's office. NOTE: The staff of the bankruptcy clerk's office is forbidden by law from giving legal advice. SEE REVERSE SIDE FOR IMPORTANT EXPLANATIONS 'Case Number: 04-40923-tmb7 Debtor(s) (name(s) and address): VVidgi Creek Goff Club, Inc., a Corporation 18707 Century Dr Bend, OR 97702 rtified to be a true and correct py of original tiled in my office. 1Soc. Sec./Taxpayer ID Nos.: 93-1188015 Debtor(s) Attomey: SHAWN P RYAN 620 SW MAIN ST #612 PORTLAND, OR 97205 Telephone No.: (503) 417-0477 Trustee: Michael B. Batlan POB 3729 H. Dunn, Clerk, U.S, BankruPtcY Co trt Salem, OR 97302 Dept ity Telephone No.: (503) 588-9192 PROOF OF CLAIM UNLESS YOU RECEIVE A NOTICE TO DO SO! :($'[4 t; November 23, 2004 AT 1000 AM IN Bend National Guard ory, 875 SW Simpson Ave, Bend, OR 97702 The filing of the bankruptcy case automatically stays certain collection and other actions against the debtor and the debtor's property. If you attempt to collect a debt or take other action in violation of the Bankruptcy Code, you may be penalized. t n' 11 I in' 4 1: • YOU ARE NOTIFIED this case may be dismissed without further notice if the debtor(s) fail to either complete the meeting of creditors set above, or timely file any documents and/or make fee payments as ordered by the court, unless within 20 days of the above "FILED" date a party in interest files a written objection to dismissal, setting forth specific grounds, with the Clerk of Court AND sends copies to BOTH the debtor's attorney (or debtor if pro se) AND trustee. IMPORTANT: Unless you receive an Order of Dismissal from this court, this case is active and the automalic stay is in effect! 11,, 11 r:*,,41-14—"ta a a 3 1,1. ri„21i The trustee narned above is hereby appointed as interim trustee in this case. Such trustee's bond shall be the blanket bond heretofore approved and filed with the U.S. Bankruptcy Court Clerk. UNITED STATES TRUSTEE oz. Bankruptcy Clerk's Office: Phone: 503-326-2231 Office Hours: 9:00AM-4:30PM Paper Document Filing Location: See Information on Back For the Court: Date: 10/20/04 Clerk, U.S. Bankruptcy Court FORM B9B (7/14/04 Filing of Chapter 7 Bankruptcy Case Relief from Stay Creditors May Not Take Certain Actions Meeting of Creditors I Do Not File a Proof of Claim at This Time Bankruptcy Court Clerk's Office (Paper Document Filing, and Copies) Information and Legal Advice EXPLANATIONS A baof the Bankruptcy Code States Code) has been filed in this court by ar againstthe debtor(s) named on the front side, and an order for relief has been entered. Requests for NON -judicial relief from_tho stay of§302(u) of the Bankruptcy Code, which limits actions to recover debtor'property, must comply with Local Form #71 5. Requests for judicial relief must compy with Local Form #720.50. Prohibiled collection actions are listed in BankruptcyCode Common eam |oaofpmhibitedoodons include contacling the debtor by telephono,mail or otherwise to demand repayment: taking actions *ncollect money htain property from the debtor; repossessing the debtor's property; and starling or continuing lawsuits or foreclosures. The DEBTOR'S REPRESENTATIVE , as specified in Bankruptcy IS REQUIRED TO ATTEND AND COMPLETE the meeting of creditors scheduled for the date, time and location listed onthe front side OR THIS CASE MAY DISMISSED! NOT held at the court; AND (2) PHOTO ID WILL BE REQUIRED for security! Creditors are welcome to attend, but are not required to do so. The meeting may be continued and concluded at a later date without further notice. There does not appear to be anyproperly available to the trustee to pay ,wditu n YOU THEREFORE SHOULD NOT FILE A PROOF OF AT THIS TIME. f it later appears that assets are available 10 pay creditors, you will be sent another notice telling you that you may file a proof of claim and the deadline for filing your proof of claim, and provding you with a partially completed proof of claim form. Any PAPER document that you file in this bankruptcy case (i.e., one not filed electronicafly via the Internet) must be filed at: U.S. Bankruptcy Court 1001 SvY5th Ave #70O Portland, OR 97204 (IMPORTANT NOTE: The Meeting of Creditors is NOT held at this address!) You may inspect all filed documents, including the Iist of the debtor's property and debts and the hist of the property claimed as exempt, at the bankruptcy clerk's office. You may make copies of paper documents for 15¢ a page in Portland or 20¢ a page in Eugene, or a deputy clerk will make them for 50 a page. Written requests t include a se|f addressed and stamped 9" x 12" envelope, a $26 search fee and the 500/page copy fee. Fees for making copies are either 500 per page for copies made at any lime by court staff (e.g., Schedules average $ 10 per page for copies rnade by the public at the court using a public access terminal. Court, and most case |n,ormatiun, may also be accessed via the court's website at www.orb.uscourts.gov. For account numbers, etc. contact the debtor's attorney.Contact your OWN attomey with other questions and to protect your rights. The clerk's office staff is forbidden by law from giving legal advice! -- Refer to Other Side for Important Deadlines and Notices -- Community Development Department Manning Duvision Goading Safely Division Environmental Soi65 Division Ei' 60r,r 11 7 ',P,",`" �,..7 cJ'a"e'ft+= Amen ll[ icn1 6a�eg47.n '97708-6005 4'54.153881-657'5 FAX x.541)365-1764 liftp://www Co desc'h.utes.tor,uslu1d/ MEMORANDUM DATE: January 11, 2016 TO: Board of County Commissioners FROM: Will Groves, Senior Planner RE: De novo hearing on Kine & Kine Properties appeal of a Hearings Officer's decision. File Nos. 247 -14 -000395 -TP, 247 -14000396 -SP, and 247 -14 -000397 - LM (247-15-000206-A) Before the Board of County Commissioners (BOCC) is an appeal filed by Kine & Kine Properties. The appeal is submitted in response to a Deschutes County Hearings Officer's decision that a proposed subdivision does not comply with all applicable regulations. The BOCC agreed to hear this matter under Order 2015-029. A de novo public hearing is scheduled for January 27, 2016. BACKGROUND The applicant, Kine & Kine Properties, requested approval of a nine -lot, zero -lot -line subdivision called "The Refuge at Widgi Creek," as well as site plan and Landscape Management (LM) review for dwellings on the proposed subdivision lots, on property in Widgi Creek zoned Resort Community (RC) and LM and located between Seventh Mountain Drive and the first fairway of the Widgi Creek Golf Course. The Hearings Officer issued a decision on April 6, 2015 finding that the proposal does not comply with all applicable regulations. On April 17, 2015 Kine & Kine Properties appealed the decision to the BOCC. The BOCC agreed to hear this matter under Order 2015-029. The applicant has agreed to toll the 150 -day deadline within which the County has to issue a decision in this matter until March 1, 2016. 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. Per err rrrt' d with Pride (a) The Hearings Officer erred when she concluded Comprehensive Plan Policy 4.8.2 applies to the subject property and requires it to remain as a golf course or be developed for open space or recreation uses. H.O. Decision, p. 23-28. (b) The Hearings Officer erred when she used the "physically developed" exception process as a basis to conclude the BOCC intended to limit future development at Widgi Creek to all but 14 acres. H.O. Decision, p. 12.28-28. (c) The Hearings Officer erred when she concluded Comprehensive PIan Policy 4.8.2. was intended to maintain the status quo at Widgi Creek as of 2001. H.O. Decision, p. 24. (d) The Hearings Officer erred when she concluded the subject property was "developed" as a golf course. H.O. Decision, p. 25-28. 1. The version of the H.O. Decision received by Appellant did not contain page numbers. Therefore, for purposes of specificity, the Appellant numbered the pages, attached the Decision hereto and refers to those page numbers to identify the issues on appeal in the assignments of error. (e) The Hearings Officer erred when she concluded the configuration of the driveways for Lots 8 and 9 did not create a safe environment within the meaning of DCC 18.124.000C. H.O. Decision, p. 45. �� `.' (g) The Hearings Officer erred when she concluded the configuration of Lots 8 and 9 will create safety hazards and therefore not be harmonious within the meaning of DCC 18.124.060E. H.O. Decision, p. 46. The Hearings Officer erred when she concluded the proposed subdivision and residential development will not be consistent with the land use patterns of the area. H.O. Decision, p. 55. (h) The Hearings Officer's decision violates Article |. Section 18 of the Oregon Constitution and the Fifth Amendment of the U.S. Constitution by interpreting the County Code in a way that results in a taking of private property for public use by requiring the private property owner to devote his property to goif course or community use for the benefit of the community. Attachments 1. Hearing Officer's decision 2. Notice of Intent to Appeal File Nos. 247 -14 -000395 -TP, 247 -14000396 -SP, and 247 -14 -000397 -LM (247-15-000206-A) Page 2 of 2 IN A MATTER BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS KINE AND KINE PROPERTIES, Applicant/Appellant. . DCC 22.32.010 Who Mav Anneal. NOTICE OF APPEAL - File Numbers 247 -14 -000395 -TP, 247 -14 -000396 -SP, 247 -14 -000397 -LM — Decision of Deschutes County Hearings Officer Appellant Kine and Kine Properties was the applicant below, a party to the proceedings and is entitled to appeal under DCC 22,32.010(A)(1). 2. DCC 22.32.015 Filing Appeals, Appellant Kine and Kine Properties submits the attached Notice of Appeal form, the appeal fee and the following statement of issues on appeal. 3. DCC 22.32.020 Notice of Anneal. The present Notice of Appeal includes the following statement of issues relied upon for appeal, a request for de novo review and the reasons why the Board should review the Hearings Officer's decision and why it should do so de novo for the issues on appeal. 4. Issues on Anneal. The Hearings Officer's decision is in error in the following ways: (a) The Hearings Officer erred when she concluded Comprehensive Plan Policy 4.8.2 applies to the subject property and requires it to remain as golf course or be developed for open space or recreation uses. H.O. Decision, p. 23-28.' (b) The Hearings Officer erred when she used the "physically developed" exception process as a basis to conclude the Board intended to limit future development at Widgi Creek to all but 14 acres. H.O. Decision, p. 12, 26-28. (c) The Hearings Officer erred when she concluded Comprehensive Plan Policy 4.8.2. was intended to maintain the status quo at Widgi Creek as of 2001. H.O. Decision, p. 24. (d) The Hearings Officer erred when she concluded the subject property was "developed" as golf course. H.O. Decision, p. 25-28. The version of the KO, Decision received by Appellant did not contain page numbers, Therefore, for purposes of specificity, the Appellant numbered the pages, attached the Decision hereto and refers to those page numbers to identify the issues on appeal in the assignments of error. Page 1 - NOTICE OF APPEAL PDX112693711442911TM1115729255 I (e) The Hearings Officer erred when she concluded the configuration of the driveways for Lots 8 and 9 did not create a safe environment within the meaning of DCC 18.124.060C. H.O. Decision, p. 45. (f) The Hearings Officer erred when she concluded the configuration of Lots 8 and 9 will create safety hazards and therefore not be harmonious within the meaning of DCC 18,124.060E. H.O. Decision, p. 46. (g) The Hearings Officer erred when she concluded the proposed subdivision and residential development will not be consistent with the land use patterns of the area. H.O. Decision, p. 55. (h) The Hearings Officer's decision violates Article I, Section 18 of the Oregon Constitution and the Fifth Amendment of the U.S. Constitution by interpreting the County Code in a way that results in a taking of private property for public use by requiring the private property owner to devote his property to golf course or community use for the benefit of the community. 5. Reouest for De Novo Review. Appellant requests review by the Board because the Hearings Officer interprets the Resort Community Ordinance and the findings for that Ordinance, as adopted by the Board, for the first time. She interprets it incorrectly in many instances and in a way which precludes future development of private property. De novo review is required because it is necessary to fully and properly evaluate several significant policy issues relevant to the proposed land use action. Specifically, de novo review is necessary to fully evaluate and correct the Hearings Officer's conclusions regarding the scope, intent and meaning of the Resort Community zone, the supporting plan policies and definitions and to correct her unfounded conclusions that the County took a physically committed exception to Goal 4 and rezoned the community for Resort uses only to maintain the status quo. DATED this / day of Page 2 - NOTICE OF APPEAL PDX11269371194291\TML1157292551 , 2015. Schwabe, Williamson & Wyatt, P.C. Tia M. Lewis, OSB # 933437 Of Attorneys for Appellant Community Development Department Planning Division Building Safety Division Erreironmental 5olts Division 4A�,�:'S►?M:'�:;,:�«: ;--:rte": . R.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 Phone: (541) 388-6575 Fax: (541) 385-1764 http://www.deschutes.org/cd NOTICE OF PUBLIC HEARING The Deschutes County Board of Commissioners will hold a public hearing on January 27, 2016, at 10 AM in the Deschutes County Board of Commissioners Hearing Room at 1300 NW Wall Street, Bend, to take testimony on the following item: FILE NUMBERS: 247 -14 -000395 -TP, 247 -14 -000396 -SP, 247 -14 -000397 -LM PROPOSAL: The applicant requests approval of a nine -lot, zero -lot -line subdivision called "The Refuge at Widgi Creek," as well as site plan and LM review for dwellings on the proposed subdivision lots, on property in Widgi Creek zoned RC and LM (Fairway application). STAFF REVIEWER: Will Groves, Senior Planner Seven (7) days prior to the public hearing, copies of the proposed documents and attachments will be available for inspection at no cost at the Deschutes County Community Development Department at 117 NW Lafayette Avenue. Copies of the documents and attachments can be purchased at the office for (25) cents a page. ALL INTERESTED PERSONS MAY APPEAR, BE HEARD, BE REPRESENTED BY COUNSEL, OR SEND WRITTEN SIGNED TESTIMONY. ALL WRITTEN REPLIES MUST BE RECEIVED BY THIS DEPARTMENT PRIOR TO THE HEARING DATE OR SUBMITTED AT THE HEARING. ANY PARTY TO THE APPLICATION IS ENTITLED TO A CONTINUANCE OF THE INITIAL EVIDENTIARY HEARING OR TO HAVE THE RECORD LEFT OPEN IN ACCORDANCE WITH SECTION 22.24.140 OF THE DESCHUTES COUNTY CODE. Recipients of this notice may request a copy of the Staff Report (25 cents a page). Any person submitting written comment or who presents testimony at the hearing will receive a copy of the decision. Failure to raise an issue in person at the hearing or in writing precludes appeal by that person to the Land Use Board of Appeals (LUBA). Failure to provide statements of evidence sufficient to afford the decision maker an opportunity to respond to the issue precludes appeal to LUBA based on that issue. Copies of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at the Planning Division at no cost, and can be purchased for 25 cents a page. Quality Services Performed with Pride STANDARDS AND APPLICABLE CRITERIA: A. Title 17 of the Deschutes County Code, the Subdivision/Partition Ordinance 1. Chapter 17.16, Approval of Subdivision Tentative Plans and Master Development Plans * Section 17.16.100, Required Findings for Approval * Section 17.16.105, Access to Subdivisions 2. Chapter 17.20, Zero Lot Subdivision * Section 17.20.010, Requirements * Section 17.20.100, Required Findings for Approval 3. Chapter 17.36, Design Standards * Section * Section * Section * Section * Section * Section * Section * Section * Section * Section * Section * Section * Section * Section * Section * Section * Section * Section * Section * Section * Section * Section 17.36.020, Streets 17.36.040, Existing Streets 17.36.050, Continuation of Streets 17.36.060, Minimum Right of Way and Roadway Width 17.36.080, Future Extension of Streets 17.36.120, Street Names 17.36.130, Sidewalks 17.36.140, Bicycle, Pedestrian and Transit Requirements 17.36.150, Blocks 17.36.160, Easements 17.36.170, Lots — Size and Shape 17.36.180, Frontage 17.36.190, Through Lots 17.36.200, Corner Lots 17.36.210, Solar Access Performance 17.36.220, Underground Facilities 17.36.230, Grading of Building Sites 17.36.250, Lighting 17.36.260, Fire Hazards 17.36.270, Street Tree Planting 17.36.280, Water and Sewer Lines 17.36.300, Public Water System 4. Chapter 17.44, Park Development * Section 17.44.010, Dedication of Land * Section 17.44.020, Fee in Lieu of Dedication 5. Chapter 17.48, Design and Construction Specifications * Section 17.48.160, Road Development Requirements -- Standards * Section 17.48.180, Private Roads 247 -14 -000395 -TP, 247 -14 -000396 -SP, 247 -14 -000397 -LM 2 B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.04, Title, Purpose and Definitions 2. Chapter 18.08, Basic Provisions 3. Chapter 18.84, Landscape Management Combining Zone 4. Chapter 18.110, Resort Community Zone 5. Chapter 18.116, Supplementary Provisions 6. Chapter 18.124, Site Plan Review. C. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.04, Introduction and Definitions 2. Chapter 22.20, Review of Land Use Action Applications 3. Chapter 22.24, Land Use Action Hearings D. Deschutes County Comprehensive Plan 1. Chapter 4, Urban Growth NOTICE TO MORTGAGEE, LIENHOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES THAT IF YOU RECEIVE THIS NOTICE, IT MUST PROMPTLY BE FORWARDED TO THE PURCHASER. Please contact Will Groves at (541) 388-6518 if you have any questions. Deschutes County encourages persons with disabilities to participate in all programs and activities. This event/location is accessible to people with disabilities. If you need accommodations to make participation possible, please call the ADA Coordinator at (541) 617- 4747. Dated this day of , 2016 Mailed this day of , 2016 247 -14 -000395 -TP, 247 -14 -000396 -SP, 247 -14 -000397 -LM Community Development Department pxammmwoOv^s.mn Goading Safely Dov"oum Environmental now,o^,/s/mm Fi(7.K°6035 117�,P,TV veItt7 Aver o+ �en��eQrn Q77D8'6905 (54l)308'6575 FAX(541).365-1704 MEMORANDUM DATE: January 11.2016 TO: Board of County Commissioners FROM: Will Groves, Senior Planner RE: De novo hearing on the Kine & Kine Properties appeal of a Hearings Officer's decision. File Nos. 247 -14 -000391 -TP, 392 -SP, 393 -LM, and 207-A. Before the Board of County Commissioners (BOCC) is an appeal filed by Kine & Kine Properties. The appeal is submitted in response to a Deschutes County Hearings Officer's decision that a proposed subdivision does not comply with all applicable regulations. The B000 agreed to hear this matter under Order 2015-030. A de novo public hearing is scheduled for January 27, 2016. BACKGROUND The applicant, Kine & Kine Properties, requested approval of an eight -lot, zero -lot -line subdivision consisting of a partial replat of Elkai Woods Townhomes Phase |||. as well as site plan and non-visible Landscape Management (LM) review for dwellings on the proposed subdivision lots. The proposal is on property in Widgi Creek zoned Resort Community (RC) and LM and Iocated on land developed with a swimming p001, community building, and parking area. The Hearings Officer issued a decision on April 6, 2015 finding that the proposal does not comply with all applicable regulations. On April 17, 2015, Kine & Kine Properties appealed the decision to the BOCC. The BOCC agreed to hear this matter under Order 2015-030. The applicant has agreed to toll the 150 -day deadline within which the County has to issue a decision in this matter until March 1, 2016 APPEAL The notice of appeal describes several assignments of error. These are summarized below, with references to those pages within the decision where the Hearings Officer addressed the issue. Quality .Services PeolwrnkY/with Pride (a) The Hearings Officer erred when she concluded Comprehensive Plan Policy 4.8.2 applies to the subject property and requires it to remain undeveloped except for community amenities. H.O. Decision, p. 7, 26.1 (b) The Hearings Officer erred when she used the "physically developed" exception process as a basis to conclude the BOCC intended to limit future development at Widgi Creek to all but 14 acres. N.O. Decision, p. 12, 25-26. (c) The Hearings Officer erred when she concluded Comprehensive Plan Policy 4.8.2. was intended to maintain the status quo at Widgi Creek as of 2001. H.O. Decision, p. 23. (d) The Hearings Officer erred when she failed to apply the definition of "Common Area" in the County Comprehensive Plan to the subject property. H.O. Decision, p. 25. (e) The Hearings Officer erred when she concluded there was nothing in Ordinance 2001- 046 and -048, the RC Zone or the RC plan policies that "otherwise zoned" the subject property for development. H.O. Decision, p. 26. (f) (g) The Hearings Officer erred when she concluded the proposal to create a subdivision of 8 zero lot line lots and remove the common area notation did not constitute a replat and was not authorized under ORS Chapter 92. H.O. Decision, p. 27, 30. The Hearings Officer erred when she concluded the Conditions of Approval Agreement requires the applicant to permanently maintain the community amenities on the subject property, including the pool, community building, parking areas and landscaping. H.O. Decision, p. 28-30. (h) The Hearings Officer erred when she concluded the configuration of the private road and Lots 6, 7 and 8 would not relate harmoniously with the existing development. H.O. Decision, p. 39. (1) The Hearings Officer erred when she concluded the removal of the pool, building, parking area and landscaping on the subject property and the development of dwellings would not be harmonious with the existing development. H.O. Decision, p. 40. (j) The Hearings Officer erred when she concluded the proposed subdivision and residential development do not contribute to the land use patterns of the area. H.O. Decision, p. 50. (k) The Hearings Officer erred when she concluded the orientation of Lots 6, 7 and 8 is not appropriate for the type of development and use contemplated. H.O. Decision, p. 61. (1) The Hearings Officer erred when she applied the double frontage standards to the zero lot line subdivision and when she concluded the double frontage on Lots 1, 2 and 3 was not essential or appropriate. H.O. Decision, p. 62. (m)The Hearings Officer's decision violates Article 1, Section 18 of the Oregon Constitution and the Fifth Amendment of the U.S. Constitution by interpreting the County Conditions of Approval agreement in a way that results in a taking of private property for public use by requiring the private property owner to dedicate his property to community use and permanently maintain improvements thereon for the benefit of the community. File Nos. 247 -14 -000391 -TP, 247 -14000392 -SP, and 247 -14 -000393 -LM (247-15-000207-A) Page 2 of 3 (n) The Hearings Officer's decision violates Article I, Section 18 of the Oregon Constitution and the Fifth Amendment of the U.S. Constitution by interpreting the County Code and Comprehensive Plan to require the subject property to be devoted to community uses. Attachments 1. Hearing Officer's decision 2. Notice of Intent to Appeal File Nos. 247 -14 -000391 -TP, 247 -14000392 -SP, and 247 -14 -000393 -LM (247-15-000207-A) Page 3 of 3 IN A MATTER BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS KINE AND KINE PROPERTIES, Applicant/Appellant. 1. DCC 22.32.010 Who Mav Anneal. NOTICE OF APPEAL - File Numbers 247 -14 -000391 -TP, 247 -14 -000392 -SP, 247 -14 -000393 -LM — Decision of Deschutes County Hearings Officer Appellant Kine and Kine Properties was the applicant below, a party to the proceedings and is entitled to appeal under DCC 22.32.010(A)(1). 2. DCC 22.32.015 Filine Anneals. Appellant Kine and Kine Properties submits the attached Notice of Appeal form, the appeal fee and the following statement of issues on appeal. 3. DCC 22.32.020 Notice of Anneal. The present Notice of Appeal includes the following statement of issues relied upon for appeal, a request for de novo review and the reasons why the Board should review the Hearings Officer's decision and why it should do so de novo for the issues on appeal. 4. Issues on Anneal. The Hearings Officer's decision is in error in the following ways: (a) The Hearings Officer erred when she concluded Comprehensive Plan Policy 4.8.2 applies to the subject property and requires it to remain undeveloped except for community amenities, H.0, Decision, p. 7, 26.1 (b) The Hearings Officer erred when she used the "physically developed" exception process as a basis to conclude the Board intended to limit future development at Widgi Creek to all but 14 acres. H.O. Decision, p. 12, 25-26. (c) The Hearings Officer erred when she concluded Comprehensive Plan Policy 4.8.2. was intended to maintain the status quo at Widgi Creek as of 2001. H.0, Decision, p. 23. (d) The Hearings Officer erred when she failed to apply the definition of "Common Area" in the County Comprehensive Plan to the subject property. H.O. Decision, p. 25, The version of the H.O. Decision received by Appellant did not contain page numbers. Therefore, for purposes of specificity, the Appellant numbered the pages, attached the Decision hereto and refers to those page numbers to identify the issues on appeal in the assignments of error. Page 1 - NOTICE OF APPEAL PDX1126937\1942911TME-115716665 (e) The Hearings Officer erred when she concluded there was nothing in Ordinance 2001-046 and -048, the RC Zone or the RC plan policies that "otherwise zoned" the subject property for development. H.O. Decision, p. 26. (f) The Hearings Officer erred when she concluded the proposal to create a subdivision of 8 zero lot line lots and remove the common area notation did not constitute a replat and was not authorized under ORS Chapter 92. H.O. Decision, p. 27, 30. (g) The Hearings Officer erred when she concluded the Conditions of Approval Agreement requires the applicant to permanently maintain the community amenities on the subject property, including the pool, community building, parking areas and landscaping. H.O. Decision, p. 28-30. (h) The Hearings Officer erred when she concluded the configuration of the private road and Lots 6, 7 and 8 would not relate harmoniously with the existing development. H.O. Decision, p. 39. (i) The Hearings Officer erred when she concluded the removal of the pool, building, parking area and landscaping on the subject property and the development of dwellings would not be harmonious with the existing development. H.O. Decision, p. 40. (j) The Hearings Officer erred when she concluded the proposed subdivision and residential development do not contribute to the land use patterns of the area. H.O. Decision, p. 50. (k) The Hearings Officer erred when she concluded the orientation of Lots 6, 7 and 8 is not appropriate for the type of development and use contemplated. H.O. Decision, p. 61. (I) The Hearings Officer erred when she applied the double frontage standards to the zero lot line subdivision and when she concluded the double frontage on Lots 1, 2 and 3 was not essential or appropriate. H.O. Decision, p. 62. (m) The Hearings Officer's decision violates Article I, Section 18 of the Oregon Constitution and the Fifth Amendment of the U.S. Constitution by interpreting the County Conditions of Approval agreement in a way that results in a taking of private property for public use by requiring the private property owner to dedicate his property to community use and permanently maintain improvements thereon for the benefit of the community. (n) The Hearings Officer's decision violates Article I, Section 18 of the Oregon Constitution and the Filth Amendment of the U.S. Constitution by interpreting the County Code and Comprehensive Plan to require the subject property to be devoted to community uses. 5. Rea uest for De Novo Review. Appellant requests review by the Board because the Hearings Officer interprets the Resort Community Ordinance and the findings for that Ordinance, as adopted by the Board, for the first time. She interprets it incorrectly in many instances and, in fact, refuses to apply one of the Page 2 - NOTICE OF APPEAL PDX1126937119429 UW.115716668 1 definitions in the Comprehensive Plan provisions adopted as a part of the Resort Community Zone. She inconectly interprets the Ordinance to preclude future development of private property. She also incorrectly interprets a County development agreement to require a property owner to permanently maintain significant improvements on private property at significant expense to this property owner for the benefit of residents who have specifically excluded the improvements from their covenants, assessments or responsibility. De novo review is required because it is necessary to fully and properly evaluate several significant policy issues relevant to the proposed land use action. Specifically, de novo review is necessary to fully evaluate and correct the Hearings Officer's conclusions regarding the scope, intent and meaning of the Resort Community zone, the supporting plan policies and definitions and to correct her unfounded conclusions that a County development agreement could somehow bind a property owner to maintain significant community improvements in perpetuity despite complete abandonment of those improvements by the community they are supposed to benefit. DATED this day r Page 3 - NOTICE OF APPEAL ADX117.693711942911TM1-11571666X 1 , 2015. Schwabe, Wi11imon & Wyatt, P.C. Tia M. Lewi OSB/ 9 437 Of Attorneys for Appellant Community Development Department RanaIng MeWon Building Safety Division Environmental Soils Wilco P,O, Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 Phone: (541) 388-6575 Fax: (541) 385-1764 http://vvvvw.deschutes.org/cd NOTICE OF PUBLIC HEARING The Deschutes County Board of Commissioners will hold a public hearing on January 27, 2016, at 10 AM in the Deschutes County Board of Commissioners Hearing Room at 1300 NW Wall Street, Bend, to take testimony on the following item: FILE NUMBERS: 247 -14 -000391 -TP, 247 -14 -000392 -SP, 247 -14 -000393 -LM PROPOSAL: The applicant requests approval of an eight -lot, zero -lot -line subdivision consisting of a partial replat of Elkai Woods Townhomes Phase III, as well as site plan and non-visible LM review for dwellings on the proposed subdivision lots, on property in Widgi Creek zoned RC and LM and located on land developed with a swimming pool, community building, and parking area. (Pool application). STAFF REVIEWER: Will Groves, Senior Planner Seven (7) days prior to the public hearing, copies of the proposed documents and attachments will be available for inspection at no cost at the Deschutes County Community Development Department at 117 NW Lafayette Avenue. Copies of the documents and attachments can be purchased at the office for (25) cents a page. ALL INTERESTED PERSONS MAY APPEAR, BE HEARD, BE REPRESENTED BY COUNSEL, OR SEND WRITTEN SIGNED TESTIMONY. ALL WRITTEN REPLIES MUST BE RECEIVED BY THIS DEPARTMENT PRIOR TO THE HEARING DATE OR SUBMITTED AT THE HEARING. ANY PARTY TO THE APPLICATION IS ENTITLED TO A CONTINUANCE OF THE INITIAL EVIDENTIARY HEARING OR TO HAVE THE RECORD LEFT OPEN IN ACCORDANCE WITH SECTION 22.24.140 OF THE DESCHUTES COUNTY CODE. Recipients of this notice may request a copy of the Staff Report (25 cents a page). Any person submitting written comment or who presents testimony at the hearing will receive a copy of the decision. Failure to raise an issue in person at the hearing or in writing precludes appeal by that person to the Land Use Board of Appeals (LUBA). Failure to provide statements of evidence sufficient to afford the decision maker an opportunity to respond to the issue precludes appeal to LUBA based on that issue. Quality Services Performed with Pride Copies of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at the Planning Division at no cost, and can be purchased for 25 cents a page. STANDARDS AND APPLICABLE CRITERIA: A. Title 17 of the Deschutes County Code, the Subdivision/Partition Ordinance 1. Chapter 17.16, Approval of Subdivision Tentative Plans and Master Development Plans 2. Chapter 17.20, Zero Lot Subdivision 3. Chapter 17.36, Design Standards 4. Chapter 17.44, Park Development 5. Chapter 17.48, Design and Construction Specifications B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.04, Title, Purpose and Definitions 2. Chapter 18.08, Basic Provisions 3. Chapter 18.84, Landscape Management Combining Zone 4. Chapter 18.110, Resort Community Zone 5. Chapter 18.116, Supplementary Provisions 6. Chapter 18.124, Site Plan Review. C. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.04, Introduction and Definitions 2. Chapter 22.20, Review of Land Use Action Applications 3. Chapter 22.24, Land Use Action Hearings D. Deschutes County Comprehensive Plan 1. Chapter 4, Urban Growth E. Oregon Revised Statutes (OAR) Chapter 92, Subdivisions and Partitions 1. Replatting * ORS 92.180, Authority to Review Replats * ORS 92.185, Reconfiguration of Lots or Parcels and Public Easements; Vacation; Notice Utility Easements * Section 92.190, Effect of Replat; Operation of Other Statutes; Use of Alternate Procedures NOTICE TO MORTGAGEE, LIENHOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES THAT IF YOU RECEIVE THIS NOTICE, IT MUST PROMPTLY BE FORWARDED TO THE PURCHASER. Please contact Will Groves at (541) 388-6518 if you have any questions. 247 -14 -000391 -TP, 247 -14 -000392 -SP, 247 -14 -000393 -LM 2 Deschutes County encourages persons with disabilities to participate in all programs and activities. This event/location is accessible to people with disabilities. If you need accommodations to make participation possible, please call the ADA Coordinator at (541) 617- 4747. Dated this day of , 2016 Mailed this day of , 2016 247 -14 -000391 -TP, 247 -14 -000392 -SP, 247 -14 -000393 -LM DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: 247 -14 -000391 -TP, 247 -14 -000392 -SP, 247 -14 -000393 -LM APPLICANT: Kine and Kine Properties 1133 N.W. Wall Street, Suite 1 Bend, Oregon 97701 PROPERTY OWNER: Bhelm, LLC 18707 S.W. Century Drive Bend, Oregon 97701 APPLICANT'S ATTORNEY: Tia M. Lewis Schwabe, Williamson & Wyatt 549 S.W. Mill View Way, Suite 100 Bend, Oregon 97702 APPLICANT'S ENGINEER: OPPONENTS' ATTORNEY: REQUEST: HEARING DATE: HWA, Hickman, Williams & Associates, Inc. 62930 O.B. Riley Road, Suite 100 Bend, Oregon 97701 Michael H. McGean Francis Hansen & Martin LLP 1148 N.W. Hill Street Bend, Oregon 97701 Attorney for Elkai Woods HOA, Elkai Woods Fractional HOA, and Widgi Creek HOA The applicant requests approval of an eight -lot, zero -lot -line subdivision consisting of a partial replat of Elkai Woods Townhomes Phase 111, as well as site plan and non-visible LM review for dwellings on the proposed subdivision lots, on property in Widgi Creek zoned RC and LM and located on land developed with a swimming pool, community building, and parking area. (Pool application).1 January 6, 2015 RECORD CLOSED: February 3, 2015 L APPLICABLE STANDARDS AND CRITERIA: A. Title 17 of the Deschutes County Code, the Subdivision/Partition Ordinance 1 The applicant also submitted applications for tentative plan, site plan and LM approval for a 9 -lot, zero - lot -line subdivision in Widgi Creek on land between Seventh Mountain Drive and the first fairway of the Widgi Creek Golf Course (File Nos. 247 -14 -000391 -TP, 247 -14 -000393 -SP, 247 -14 -000493 -LM) (Fairway application). Chapter 17.16, Approval of Subdivision Tentative Plans and Master Development Plans * Section 17.16.100, Required Findings for Approval * Section 17.16.105, Access to Subdivisions 2. Chapter 17.20, Zero Lot Subdivision * Section 17.20.010, Requirements * Section 17.20.100, Required Findings for Approval 3. Chapter 17.36, Design Standards * Section 17.36.020, Streets * Section 17.36.040, Existing Streets * Section 17.36.050, Continuation of Streets * Section 17.36.060, Minimum Right of Way and Roadway Width * Section 17.36.080, Future Extension of Streets * Section 17.36.120, Street Names * Section 17.36.130, Sidewalks * Section 17.36.140, Bicycle, Pedestrian and Transit Requirements * Section 17.36.150, Blocks * Section 17.36.160, Easements * Section 17.36.170, Lots — Size and Shape * Section 17.36.180, Frontage * Section 17.36.190, Through Lots * Section 17.36.200, Corner Lots * Section 17.36.210, Solar Access Performance * Section 17.36.220, Underground Facilities * Section 17.36.230, Grading of Building Sites * Section 17.36.250, Lighting * Section 17.36.260, Fire Hazards * Section 17.36.270, Street Tree Planting * Section 17.36.280, Water and Sewer Lines * Section 17.36.300, Public Water System 4. Chapter 17.44, Park Development * Section 17.44.010, Dedication of Land * Section 17.44.020, Fee in Lieu of Dedication 5. Chapter 17.48, Design and Construction Specifications * Section 17.48.160, Road Development Requirements -- Standards * Section 17.48.180, Private Roads B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.04, Title, Purpose and Definitions * Section 18.04.030, Definitions 2. Chapter 18.08, Basic Provisions * Section 18.08.020, Existing Agreements and Zoning Permits 3. Chapter 18.84, Landscape Management Combining Zone * Section 18.84.020, Application of Provisions * Section 18.84.030, Uses Permitted Outright * Section 18.84.050, Use Limitations * Section 18.84.080, Design Review Standards * Section 18.84.090, Setbacks * Section 18.84.095, Scenic Waterways 4. Chapter 18.110, Resort Community Zone * Section 18.110.010, Purpose * Section 18.110.020, Seventh Mountain/Widgi Creek and Black Butte Ranch Resort Districts * Section 18.110.060, Development Standards 5. Chapter 18.116, Supplementary Provisions * Section 18.116.030, Off -Street Parking and Loading * Section 18.116.031, Bicycle Parking * Section 18.116.180, Building Setbacks for the Protection of Solar Access 6. Chapter 18.124, Site Plan Review. * Section 18.124.030, Approval Required * Section 18.124.060, Approval Criteria * Section 18.124.070, Required Minimum Standards C. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.04, Introduction and Definitions * Section 22.04.020, Definitions 2. Chapter 22.20, Review of Land Use Action Applications * Section 22.20.055, Modification of Application 3. Chapter 22.24, Land Use Action Hearings * Section 22.24.140, Continuances and Record Extensions D. Deschutes County Comprehensive Plan 1. Chapter 4, Urban Growth * Section 4.3, Unincorporated Communities * Section 4.8. Resort Communities * Section 4.8, Resort Community Policies E. Oregon Revised Statutes (OAR) Chapter 92, Subdivisions and Partitions 1. Replatting * ORS 92.180, Authority to Review Replats * ORS 92.185, Reconfiguration of Lots or Parcels and Public Easements; Vacation; Notice Utility Easements * Section 92.190, Effect of Replat; Operation of Other Statutes; Use of Alternate Procedures I. FINDINGS OF FACT: A. Location. The subject property does not have an assigned address. It is identified as Tax Lot 1600 on Deschutes County Assessor's Map 18-11-22DA, and is located at the intersection of Seventh Mountain Drive and Elkai Woods Drive. B. Zoning and Plan Designation. The subject property is zoned Resort Community (RC) and Seventh Mountain Widgi Creek Resort (SMWCR) District, and is within the Landscape Management (LM) Zone associated with Century Drive and the Deschutes River. The property is designated Resort Community on the Deschutes County comprehensive plan map. C. Site Description. The subject site is 1.59 acres is size and roughly triangular in shape. It is developed with a swimming pool, community building, parking area and landscaping. The property has access from a driveway off Seventh Mountain Drive. Most of the property is level. However, the property has a moderate slope down to Seventh Mountain Drive on the north and to Elkai Woods Drive on the east. D. Surrounding Zoning and Land Uses. The subject site is located within the Widgi Creek development which consists of a mixture of residential and recreational facilities, including single-family detached and attached dwellings, a golf course, club house, tennis courts, pool, and private roads, bicycle paths and golf cart paths. To the west of the subject site are an existing common area and townhomes in Elkai Woods Townhomes (Elkai Woods). Farther to the west are The Inn of the Seventh Mountain (Seventh Mountain) resort and the Points West Phase I Subdivision (Points West). The Seventh Mountain development consists of approximately 240 condominium units as well as resort facilities including conference facilities, two pools, a restaurant, and an ice skating rink. To the north and west of the subject site are existing townhomes in Elkai Woods. Farther to the north and west are the Widgi Creek Golf Course, clubhouse, tennis courts, and residential development. All of the surrounding developments are zoned RC designated Resort Community. Widgi Creek abuts Cascade Lakes Highway on the north and the Deschutes River canyon on the south. The Deschutes National Forest (DNF) surrounds Widgi Creek and Seventh Mountain. E. Land Use History. The Seventh Mountain resort was established prior to the county's adoption of land use regulations. The Seventh Mountain/Widgi Creek/Elkai Woods developments have a long land use history dating back to at least 1983 when Widgi Creek received its original land use approval (Z-83-7, MP -83-1, CU -83-107). The staff report lists the following land use permits and approvals as applicable to Tax Lot 1600: MC8922 MC9021 MC9014 PA908 TP90735 MC9018 MC9024 V9112 S9137 SP9121 S9136 AD9428 SP9445 AD9516 FP951 MP9519 SP9672 SP9674 TP96857 SP9610 SP965 FPA9714 FPA9749 SP9731 SP9752 SP9857 SP9842 FPA997 FPA0011 LM05110 SP0534 LL0842 SP0915 Modification Of Conditions For The Golf Course At The Inn Of The Seventh Mountain Modification Of Conditions For The Expansion To The Inn Modification Of Conditions For The Inn Of The Seventh Mountain's Subdivision Plat Extension Of City Sewer Line To Inn Tentative Plat For 107 Lots At The Inn Of The Seventh Mountain Modification Of Conditions To Allow A Sales Office For New Lots At The Inn of The Seventh Mountain Modification Of Conditional Use Permit Variance To Sign Code Permit Sign For Seventh Mt. Golf Village Clubhouse Site Plan Sign For Seventh Mountain Golf Village Ad For Widgi Creek Minor Alteration For Sales Office At Restaurant Declaratory Ruling For Status Of Widgi Creek/Seventh Mountain Golf Village, And Condo Site Financial Segregation Partition To Divide Remainder Lot At Widgi Creek/Seventh Mountain Golf Village Site Plan Review For Golf Course Clubhouse Site Plan Review For Amenities Complex For The Elkai Woods Townhome Development Within In Widgi Creek PUD Tentative Plat/Master Plan For 86 Townhouse Lots--Elkai Woods Site Plan For 8 Townhouse Units --Phase I Elkai Woods Site Plan Approval For Improvements To Maintenance Facility. Final Plat Approval For Elkai Woods Townhomes At Widgi Creek Final Plat Review For Phase li Elkai Woods Site Plan Review For Elkai Woods Phase li Site Plan For Permanent Restrooms To Replace Temporary Restrooms For Golf Course Site Plan For Phase III Of Elkai Woods At Widgi Creek Site Plan For Elkai Amenities Buildings Final Plat Review For Elkai Woods Phase III Final Plat Review Of TP -96-857 Landscape Management Site Plan For Sign. Site Plan For New Storage Building For Widgi Creek Golf Course Lot Line Adjustment Site Plan Review For Addition To Storage Building F. Procedural History: These applications were submitted on November 17, 2014, and were accepted by the county as complete on December 17, 2014. Therefore, the 150 -day period for issuance of a final local land use decision under ORS 215.427 would have expired on May 18, 2015.2 The Hearings Officer conducted a site visit to the subject property and vicinity on January 6, 2015, accompanied by Senior Planner Will Groves. A combined public hearing on the applicant's Pool and Fairway proposals was held on January 6, 2015. At the hearing, the Hearings Officer disclosed my observations and impressions from my site vieit, received testimony and evidence, left the written evidentiary record open through January 27, 2015, and allowed the applicant through February 3, 2015 to submit final argument pursuant to ORS 197.763. The applicant submitted final argument on February 3, 2015 and the record closed on that date. Because the applicant agreed to extend the written record from January 6 through February 3, 2015, under Section 22.24.140 of the procedures ordinance, the 150 -day period was tolled for 28 days and now expires on June 15, 2015. As of the date of this decision, there remain 70 days in the extended 150 -day period. G. Proposal. The applicant proposes to create an eight -lot, zero -lot -line subdivision through a partial replat of "Common 18" in the Elkai Woods Townhomes Phase 111 Subdivision located at the intersection of Seventh Mountain Drive and Elkai Woods Drive. The applicant requests approval to remove the common area designation from the subject site. The applicant also requests site plan approval and non-visible LM review for the proposed townhome dwellings on the subdivision lots. The applicant would remove the existing development. Proposed Lots 1, 3, 4 and 5 would have access from Seventh Mountain Drive. Proposed Lots 2, 6, 7, and 8 would have access from a new private road off Seventh Mountain Drive. H. Public/Private Agency Comments. The Planning Division sent notice of the applicant's proposal to a number of public and private agencies and received responses from: the Deschutes County Senior Transportation Planner and Road Department (road department); the City of Bend Fire Department (fire department); and the Oregon Department Water Resources (OWRD), Watermaster-District 11. These comments are set forth verbatim at pages 4 and 5 of the staff report and are included in the record. The following agencies did not respond to the request for comments or submitted a "no comment" response: the Deschutes County Assessor and Building Division (building division); the City of Bend Planning Department and Public Works Department; the Oregon Department of Transportation (ODOT); Pacific Power; and CenturyLink. I. Public Notice and Comments. The Planning Division mailed individual written notice of the applicant's proposal and the public hearing to the owners of record of all property located within 250 feet of the boundaries of Tax Lot 1600. The record indicates this notice was mailed to the owners of 25 tax lots. In oddiUon, notice of the public hearing was published in the Bend "Bulletin" navvnpaper, and the subject property was posted with a notice of proposed land use action sign. As of the date the record in this matter c|ooed, the county had received 52 letters from the public and two petitions signed by a total of 159 persons. In addition, 12 members of the public testified at the public hearing. Public comments were addressed to both the Pool and Fairway applications and are discussed in the findings below. J. Lot of Record. The proposed subdivision site is a legal lot of record having been platted as "Common 18" on the 1999 plat for Elkai Woods Townhomes Subdivision Phase 111. zAothe 15«mday falls onaSaturday, under Section 22.08.U70the 15»mday inMonday, May 18, 2015. III. CONCLUSIONS OF LAW: A. Summary: The Hearings Officer has found that because the proposed subdivision site was designated "common area" within the Elkai Woods Townhomes Phases HI Subdivision in 1999, it is subject to Comprehensive Plan Policy 4.8.2 adopted in 2001 which requires that the site remain undeveloped except for community amenities. | also have found the applicant's proposed replat to remove the "common area" designation is not authorized by the statutes governing replatting. Consequently | have found | cannot approve the proposed replat and residential subdivision. However, because | anticipate this decision will be appealed to the Board of County Commissioners (board), in the event the board elects to hear the appeal, and to assist the board and county staff in that appeal, | have included in this decision findings concerning the proposal's compliance with applicable provisions of the comprehensive plan, Titles 17 and 18, and ORS Chapter 92, as well as recommended conditions of approval. B. Preliminary Issues: 1. Effect of Pending LUBA Appeal. FINDINGS: On September2Q. 2014. the Hearings Officer issued a decision granting tentative plan, site plan, and LM approval for a 24 -lot, zero -lot line subdivision called "Mile Post One" in Widgi Creek. (Arrowood, TP -14'1024. SP -14-8, LM -14-17). In that decision, | held the RC Zone governs development in Widgi Creek and superseded the Widgi Creek master plan. Opponents in Arrowood, who also are opponents of the subject application, appealed my decision to LUBA. As of the date of this decision, LUBA had not issued its decision on the Arrowood appeal. | understand opponents in the subject application have presented the same arguments concerning application of the master plan in their appeal to LUBA as they have here. Therefore, LUBA's decision in the Arrowood appeal likely will be relevant to the subject applications. NeVgrth8|eSS, in the absence of a stay of the Fairway and Pool applications from LUBA, and/or the applicant's agreement to toll the 150 -day period while the LUBA appeal is pending, | find | cannot delay issuing the subject Pool and Fairway decisions. 2. Incomplete Application. FINDINGS: In his January 6, 2015 memorandum, Michael MCGm8n, attorney for opponents Elkai Woods Homeowners Association, Elkai Woods Fractional Homeowners Association, and Widgi Creek Homeowners Association (hereafter "HOAs"), stated: "As the staff report notes, the County Transportation Planner finds that the application is lacking a Site Traffic Report under DCC /8./6.310(F). The tion in its current form must therefore be denied. If applicant applies to modify its application under DCC 22.20.055, the application should be re -noticed and re -set for a new hearing." There is no section 18.15.310(F) in Title 18. The Hearings Officer assumes Mr. McGean meant to cite Section 17.16.115(F) of the subdivision ordinance which establishes minimum requirements for a site traffic report. In response to the aforementioned comments from the county's Senior Transportation Planner Peter Russell, the applicant submitted a site traffic report on January 20, 2015. | find submission of this report following the county's acceptance of the applicant as complete did not constitute a modification under Section 22.20.055. "Modification of application" is defined in Section 22.04.020 as: * * * the applicant's submittal of new information after an application has been deemed complete and prior to the close of the record on a pending application that would modify a development proposal by changing one or more of the following previously described components: proposed uses, operating characteristics, intensity, scale, site layout (including but not limited to changes in setbacks, access points, building design, size or orientation, parking, traffic, or pedestrian circulation plans), or landscaping in a manner that requires the application of new criteria to the proposal or that would require the findings of fact to be changed. It does not mean an applicant's submission of new evidence that merely clarifies or supports the pending application. The Hearings Officer finds the applicant's site traffic report did not constitute a modification because it did not change the development proposal. Rather, it constituted new evidence that clarifies and supports the applicant's proposal. Therefore, I find the applicant was not required to submit a modification application, and the county was not required to re -notice the application or set it for a new hearing. In her December 12, 2014 letter, opponent Barbara Munster, President of the Widgi Creek HOA, argued the subject application was incomplete and should not have been accepted by the county because "there are several blanks in" the application. However, Ms. Munster does not identify what information she considers missing from the application. She does state her belief that the applicant incorrectly identified the applicable zoning of the subject property as SMWCR when "it has always been Resort Community." The Hearings Officer finds the SMWCR designation is correct and reflects the area within the Widgi Creek RC Zone in which the subject property is located. 3. Resort Community Zoning and Designation. FINDINGS: Several opponents argue Widgi Creek is not a "resort community" and therefore should not be subject to the RC Zone. As discussed in the findings below, the county's decision to designate and zone Widgi Creek a "resort community" was made by the board in 2001. That decision is final and is not before me in this matter. 4. Need. Opponents argue there is no need for the proposed new dwellings. The Hearings Officer finds need for housing is not an approval criterion for the applicant's proposal under Titles 17 and 18. 5. Savings Clause. Opponents argue the Widgi Creek master plan remained in effect after the board's adoption of the RC Zone based on the following language in Section 18.08.020: DCC Title 18 does not repeal, abrogate or impair any existing easements, covenants, deed, restrictions or zoning permits such as preliminary plat and partition approvals, conditional use permits, nonconforming use permits, temporary use permits, special exceptions or building permits. This "savings clause" was included in Title 18 when it was adopted in 1979. The Hearings Officer finds this language signifies that any land use approvals and permits in effect on the date Title 18 took effect would continue to be valid. In other words, the effect of the "savings clause" was to apply Title 18 prospectively. In my decision in Arrowood, | held that if the board had intended to preserve Widgi Creek's master plan as the controlling regulation for Widgi Creek development it would have included a "savings clause" in Ordinance Nos. 2001-047 and 2001- 048. The board did not do so. | found the lack of a "savings clause" in those ordinances indicates the board intended the RC Zone to apply to future development in Widgi Creek. | adhere to that holding here. C. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance RESORT COMMUNITY ZONE STANDARDS 1. Chapter 18.110, Resort Community Zone a. Section 18.110.010, Purpose The purpose of the Resort Community Zone is to provide standards and review procedures for development in the communities of Black Butte Ranch and the Inn of the Seventh Mountain/Widgi Creek. The provisions of this chapter shall apply to any Resort Community that is planned pursuant to OAR 660 Division 22. FINDINGS: As was the case in the aforementioned Arrowood application, the threshold issue in the Pool and Fairway applications is the relationship between the RC Zone and the Widgi Creek master plan approved in 1983. In Arrowoodthe Hearings Officer found the master plan was superseded by the RC Zone when it was adopted and applied to Widgi Creek in 2001. | also found the property for which Arrowood sought approval to develop the Mile Post One subdivision was specifically identified by the board in 2001 as available for development, and the board stated it intended future residential development of any remaining undeveloped land within Widgi Creek "would be subject tn" the RC Zone provisions. In my decision, | also noted that when former Hearings Officer Anne Briggs approved Arrowood's development plan for the Points West Subdivision (TP -08-988. 8P-06-13. LyN-00-34). she rejected the HOAs' argument that the Widgi Creek master plan forbade further development within Widgi Creek. Her decision was not appealed. Opponents of the applicant's Pool and Fairway applications argue this Hearings Officer's decision in Arrowood was vvrong, and that the Widgi Creek master plan prohibits further residential development in Widgi Creek in Qenana|, and on the proposed pool and fairway sites in particular. They submitted extensive evidence and argument in support of their position. For the reasons set forth in my Arrowood decision, | adhere to my holding that the RC Zone superseded the master plan and now governs development within Widgi Creek. However, because |find it is likely my Pool and Fairway decisions will be appealed to the board, | include the following detailed findings concerning the relationship between the Widgi Creek master plan and the RC Zone. In the Hearings Officer's Arrowood decision I included the following brief history of the RC Zone: "In 1907 the Land Conservation and Development Commission (LCDC) adopted Division 22 of its administrative rules (OAR Chapter 660) to establish statewide policies and procedures for planniand zoning of 'unincorporated communities.' OAR 000-22-0010 included within 'unincorporated communities' the category of 'resort community,' defined as 'an unincorporated community that was established primarily for and continues to be used primarily for recreation and resort purposes.' In 1998, as part of its required 'periodic review,' the county began the 'unincorporated community planning project' for the Seventh Mountain and Widgi Creek resorts in order to conform them with LCDC's 'unincorporated community' administrative rules. In December of 2001 the county adopted Ordinance No. 2001-48, effective March 13, 2002, amending Title 18 to adopt new definitions, to take exceptions to the applicable statewide land use planning goals for both the Black Butte Ranch and Seventh Mountain/Widgi Creek resorts, to adopt the Resort Community Zone through Chapter 18.110, and to adopt new zoning and comprehensive plan maps for the Seventh Mountain/Widgi Creek resorts to include them within the Resort Community Zone and plan designation in general, and the SMWCR Zone in particular. The record indicates these amendments subsequently were acknowledged by LCDC." 3 Prior to adoption of the 2001 ordinances, Widgi Creek was zoned Forest Use (F-3) which did not allow a resort. Widgi Creek had not been approved as a destination resort under Goal 8 (Recreational Needs) and its implementing administrative rules. Therefore, to comply with the "unincorporated community" administrative rules, the county had to take three steps for Widgi Creek: (1) adopt an exception to Goal 4 (Forest Lands); (2) adopt comprehensive plan and zoning ordinance provisions implementing the "unincorporated community" administrative rules; and (3) adopt a plan amendment, map amendment, and zone change to designate and zone Widgi Creek "resort community." These steps were accomplished through the adoption of Ordinance Nos. 2001-047 and 2001-048, which also implemented the "unincorporated community" administrative rules for Black Butte Ranch. The board adopted extensive findings in support of Ordinances 2001-047 and 2001-048. These findings are somewhat contradictory, and as a result both the applicant and opponents point to these findings as support for their respective positions. For the reasons set forth below, the Hearings Officer finds that when the board adopted the RC Zone and applied it to Widgi Creek, it intended the RC Zone, not the Widgi Creek master plan, to govern development in Widgi Creek. 1. Goal Exception. The board adopted a "physically developed" exception to Goal 4 for Widgi Creek under Oregon Administrative Rules (OAR) 660-004-0025 which states: (1) A local government may adopt an exception to a goal when the land subject to the exception is physically developed to the extent that it is no longer available for uses allowed bv the applicable goal. Other rules may also apply, as described in OAR 660-004-0000(1). (2) Whether the land has been physically developed with uses not allowed by an applicable goal will depend on the situation at the site of the exception. The exact nature and extent of the area found to be physically developed shall be clearly set forth in the justification for the exception. The specific area(s) must be shown on a map or otherwise described and keyed to the 3 The board also adopted Ordinance 2001-047, effective March 13, 2002, amending the comprehensive plan and Title 18 to take an exception to Goal 4, and to adopt the RC Zone and designation, for Widgi Creek. appropriate findings of fact. The findings of fact shall identify the extent and location of the existing physical development on the land and can include information on structures, roads, sewer and water facilities, and utility facilities. Uses allowed by the applicable goal(s) to which an exception is being taken shall not be used to justify a physically developed exception. (Emphasis added.) Ordinance No. 2001-047 includes the following findings in support of the "physically developed" exception for Widgi Creek: "The Inn/Widgi site is already developed to an extent which, for all practical purposes, limits its use to the type of resort uses that already exist. Resort Community zoning is being adopted concurrent with this exception. The resort community zoning uses permitted in the County zoning ordinance, Title 18 of the County Code, will further limit any future development to resort related uses only. * * * The County is proposing a goal exception based on the existing physical developments on the property, which are not allowed under Goal 4. These physical developments include the existing Inn of the Seventh Mountain resort and condominium facility and the existing Widgi Creek residential and golf course facility. The site is also developed with expanses of paved roads, parking areas and vehicle storage and maneuvering areas. The physical improvements at the Inn of the Seventh Mountain are illustrated and described in detail on Figure 3, a site plan drawing covering this 80 -acre site. Figure 4, an aerial photograph of the site and surrounding lands, also illustrates development of the site. As indicated on these exhibits, the property is physically developed with resort facilities and accessory uses including condominiums, convention facilities, restaurants, and numerous recreational facilities (pool complex, spa, ice/roller rink, volleyball pit, tennis courts, equestrian center, etc.) A small 1.2 -acre area formerly used for on-site sewage treatment, located near the boundary with Widgi Creek to the east, might be redeveloped some day for resort uses, but no plans exist as of now for this to occur. This area is surrounded by resort development and could only be redeveloped in the future for resort purposes. A second area on the property, approximately 13 acres in size, of which only about 8-9 acres is usable due to steep slopes down to the Deschutes River, could possibly be developed in the future for resort facilities such as a lodge, single-family or multi -family dwellings, or conference center. * * * Widgi Creek was approved in 1983 as a resort including 107 single-family homes. 103 townhouses, a regulation golf course and appurtenant golf facilities, including clubhouse, driving range and maintenance facilities. The physical developments at Widgi Creek encompass 237 acres and are shown on Figures 5 and 6 (an aerial photograph). The layout for town homes, known as Elkai Woods, is depicted on Figure 6. When Widgi Creek was approved it was zoned F3. In 1992, when the County amended its Forest zone and discontinued the F3 zone to comply with legislative changes, the resort became zoned F2 and became a nonconforming use. As of November 2001, 70 single-family homes have been constructed and all single-family lots have been sold. The majority of townhomes have been constructed. The remaining town homes are expected to be completed in 2002. Similar to the Inn of the Seventh Mountain, Widgi Creek has never been approved as a Goal 8 destination resort, however the development of the site justifies a 'physically developed; exception to Goal 4. As illustrated in the Figures, Widai Creek is for all practical purposes built -out" (Bold and underscored emphasis added.) Opponent HOAs argue the above -underscored language signifies the board found no further development could occur in Widgi Creek beyond the uses and densities approved in 1983. The Hearings Officer disagrees. The board expressly identified two undeveloped areas within Widgi Creek totaling approximately 14 acres that could be developed in the future "for resort facilities" including single-family dwellings. One of those areas was approved for development of the Mile Post One subdivision. In addition, the board's "built -out" language must be read in its context of supporting a "physically developed" exception to Goal 4. That exception required the county to find Widgi Creek was physically developed to the extent it is no longer available for uses permitted on forest lands. In that context, I find the above -underscored language means that as of the date of the board adopted the exception to Goal 4, it found all but approximately 14 acres of 237 -acre Widgi Creek had been physically developed, that any future development within Widgi Creek would be as a resort and not for forest uses, and therefore Widgi Creek qualified for a "physically developed" exception because it was no longer available for forest uses. Finally, the Hearings Officer finds the above -quoted language in bold type indicates the board understood and intended that there could be future development within Widgi Creek, but that any such development would be governed by the provisions of Title 18. As discussed in detail in the findings below, the board adopted comprehensive plan policies that both contemplate potential redevelopment of developed land within Widgi Creek, and strictly limit that redevelopment in terms of the type and density of uses. However, there is no reference to the Widgi Creek master plan in either the plan policies or the RC Zone. 2. Resort Community Designation and Zoning. As part of its adoption of the "resort community" designation and zoning for Widgi Creek, OAR 660-022-0060 required the county to demonstrate its process afforded adequate opportunities for Widgi Creek owners and residents to participate. The board's findings in support of the RC designation and zoning state adopted in Ordinance No. 2001-47 state in relevant part: "The meetings were well attended by resort staff and representatives, particularly at the [Black Butte] Ranch where the Board of Directors for the owner's association and resort staff took a very active role in reviewing policies and draft ordinance language. Attendance by and contact from individual landowners at both resort areas, and by agency staff, was generally sparse. This may have been due to a perception that significant changes would not occur at either resort as a result of this proiect work because both resorts are substantially built out and have their own internal controls for future development in accordance with approved master plans. This is a correct perception for the most part. However, the 82 -acre exception area that would be included in the Ranch boundary and an internal piece of land encompassing approximately 8-9 buildable acres at lnn/Widgi both offer significant potential for some additional development. This potential could not be realized at either resort unless and until rezoning to a Resort Community designation occurs, concurrent with the exceptions to Goal 4 previously described. However, development in each of these exception areas will be limited by the zoning ordinance restrictions in Chapter 18.110 of the County zoning ordinance."(Underscored and bold emphasis added.) Opponents argue the above -underscored reference to master plans signifies the board intended future development in the resorts would be governed by those plans. Again, the Hearings Officer disagrees. I find this language also must be read in context as part of the board's explanation for the lack of significant resort landowner participation in the public meetings concerning adoption of the RC Zone -- presumed to be due to their "perception" that no significant changes would occur following that rezoning. However, I find the above -quoted language in bold type makes clear the board understood and intended that future development in Widgi Creek following the RC designation and zoning would be governed by Title 18 and the provisions of the RC Zone — not by the master plans. Through Ordinances 2001-047 and 2001-048 the board also adopted comprehensive plan policies and zoning regulations implementing the "unincorporated communities" administrative rules, the purpose of which, set forth in OAR 660-022-0000, is to establish statewide policy for planning and zoning unincorporated communities in rural Oregon. They are defined in OAR 660-022-010(9) primarily as lands: (a) subject to an exception to Goal 3 or 4; (b) located outside a city and urban growth boundary (UGB); and (c) falling within the definition of one of the four types of unincorporated communities — e.g., "resort community." OAR 660-022-0030(2), governing planning and zoning for unincorporated communities, states the county "may authorize anv residential use and density * * * subject to the requirements of" OAR 660-022 (emphasis added). OAR 660-022-030(6), (7), and (8) establish the parameters for county zoning ordinance provisions governing uses allowed in unincorporated communities as follows: (6) County plans and land use regulations shall ensure that new or expanded uses authorized within unincorporated communities do not adversely affect agricultural or forestry uses. (7) County plans and land use regulations shall allow only those uses which are consistent with the identified function, capacity and level of service of transportation facilities serving the community, pursuant to OAR 660-012- 0060(1)(a) through (c) [Transportation Planning Rule]. (8) Zoning applied to lands within unincorporated communities shall ensure the cumulative development: (A) Will not result in public health hazards or adverse environmental impacts that violate state or federal water quality regulations; and (B) Will not exceed the carrying capacity of the soil or of existing water supply resources and sewer services. Under the administrative rules, the county's comprehensive plan and zoning ordinance provisions for unincorporated communities must assure new and expanded development does not exceed the capacity of available infrastructure. OAR 860-022-0040(7) requires counties to include findings demonstrating compliance with the unincorporated communities rule. The board's findings in support of Ordinances 2001-047 and 2001-048 include the foliowing pertinent findings under Paragraphs (7) and (8) of OAR 060-032-0030 and OAR 860-032-050 dealing with community public facilities plans: "The Resort Community designation will not allow any new types of uses to be developed other than resort -related facilities as both communities are substantially developed as resorts. ' * * * has its own wells and uses city sewer services services meet current needs and are not in danger of becoming insufficient. Weekly water testing is done in conformance with all prescribed standards. The state may also conduct well testing, at their discretion. * * * * * * Both the Ranch and have existing water and sewer facilities that are adequate. Neither community is in a groundwater Iimited area nor is there a history of failing wells." None of these findings states or implies that new or expanded development of Widgi Creek as a "resort community" is limited by its master plan. To the cnntnary, these findings make clear future development will be constrained by the RC designation and zoning and by the availability and adequacy of infrastructure. The Hearings Officer finds the lack of reference to the master plan in these findings is not inadvertent given the purpose of the unincorporated community rules to establish standards for development of what are essentially urban uses in rural areas. A resort community master plan could be inconsistent with those rules by, for exonnp|e, permitting development of a type or density exceeding the capacity of available infraotructure, or falling outside the uses permitted in a "resort community." Finally, neither the RC Zone nor the resort community policies in Chapter 4.8 of the comprehensive plan, discussed in detail in the findings be|ovv, makes reference to the Widgi Creek master plan. Rother, they identify permitted uses and limitations thereon solely by reference to the RC Zone and OAR Chapter 650-022. For example, Plan Policy 4.8.27 for Resort Communities states new uses and expansion of existing uses in Widgi Creek that require land use approval "shall be approved only upon confirmation from the City of Bend that sewer service can be provided." For the foregoing reasons, the Hearings Officer finds there is nothing in the county's 2001 adoption of a Goal 4 exception or RC designation and zoning for Widgi Creek that identifies the Widgi Creek master plan as applicable to Widgi Creek dgVe|Op08DL To the contrary, the board's findings in support of the exception and rezoning overwhelmingly support the conclusion that the board intended the RC Zone to govern such development. b. Section 18.110.020. Seventh Mountain/Widgi Creek and Black Butte Ranch Resort Districts. A. Uses permitted outright. The following uses and their accessory uses are permitted subject to the applicable provisions of DCC 18.110.050: 1. Single-family dwelling. FINDINGS: The applicant proposes to develop an eight -lot zero -lot -line subdivision with single- family dwellings which are permitted outright in the RC Zone. As discussed below, zero -lot -line subdivisions for single-family dwellings are permitted outright under Section 18.110.060(J). c. Section 18.110.060, Development Standards A. Setbacks. Single -Family Dwelling. The following setbacks shall be maintained for single-family dwellings and accessory uses on residential parcels: * * * B. Other Setbacks. The following setbacks shall be maintained for buildings and structures, based on the applicable provision(s) of DCC Title 18: 1. Solar Setback. The setback from the north lot line shall meet the solar access setback requirements in DCC 18.116.180 for south roof protection. FINDINGS: As discussed in the findings below, under Section 18.110.060(J)(2) the proposed dwellings on zero -lot -line subdivision lots are not subject to the front, side and rear year setbacks, or the solar setback, and therefore the standards in these paragraphs do not apply. 2. Waterway Setback. All structures, buildings or similar permanent fixtures shall be set back from the ordinary high water mark along all streams and lakes a minimum of 100 feet measured at right angles to the ordinary high water mark. FINDINGS: The record indicates the proposed homesites would be at least 1,000 feet from ordinary high water mark of the Deschutes River, therefore satisfying this criterion. 3. Building Code Setbacks. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or Deschutes County under DCC 15.04 shall be met. FINDINGS: The building division did not identify additional setbacks in the building code. 4. Rimrock Setbacks. Setbacks from rimrocks shall be maintained as provided in DCC 18.84 or DCC 18.116.160, whichever is applicable. FINDINGS: The Hearings Officer finds this criterion is not applicable because there is no rimrock as defined in Section 18.04.030 on or adjacent to the subject property. 5. Scenic Waterway. The applicable provisions in DCC 18.84 shall be met. FINDINGS: The record indicates the proposed homesites are located within the scenic waterway corridor associated with the Deschutes River because they are within one-quarter mile of the river. Therefore, the Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to obtain approval of its proposal from the Oregon Parks and Recreation Department. 6. Floodplain. The applicable provisions in DCC 18.96 shall be met. FINDINGS: The record indicates the proposed subdivision is not located within any designated floodplain. C. Building Height. 1. Resort Facility and Resort Utility Building. No resort facility or resort utility building or structure shall be erected or enlarged to exceed 40 feet, or 30 feet when the provisions in DCC 18.84.080 are applicable, unless a variance for a greater height is approved. For the purposes of DCC 18.110.060(C)(1) an application for a height variance may be granted provided the Planning Director or Hearings Body makes only the following findings: *** FINDINGS: The subject property and the proposed subdivision are located within the LM Zone associated with the Cascade Lakes Highway and the Deschutes River, and therefore the design review standards in Section 18.84.080 governing building height are applicable. The applicant submitted an application for non-visible LM site plan review. The applicant's burden of proof states the proposed dwellings will not exceed 30 feet in height from natural grade. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring compliance with the 30 -foot height limit. 2. All Other Buildings. No building or structure used for purposes other than a resort facility or resort utility, including a single-family dwelling, shall be erected or enlarged to exceed 30 feet in height, except as provided by DCC 18.120.040. FINDINGS: The applicant does not propose any buildings or structures other than the dwellings, and therefore this criterion is not applicable. 3. Scenic Waterway. The applicable provisions in DCC 18.84 shall be met. FINDINGS: As discussed above, the proposed homesites are located within the scenic waterway corridor associated with the Deschutes River. Compliance with the applicable criteria in Chapter 18.84 is discussed in the findings below. D. Lot Coverage. Single-family dwelling. The maximum lot coverage by a single-family dwelling and accessory structures shall be 40 percent of the total lot. FINDINGS: As discussed below, under Section 18.110.060(J)(2) zero -lot -line lots are not subject to these lot coverage standards. 2. All Other Buildings. The maximum lot coverage by buildings and structures used for purposes other than a single-family dwelling shall be determined by the spatial requirements for yard setbacks, landscaping, parking and utilities. FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant does not propose any buildings other than single-family dwellings. E. Off -Street Parking and Loading. Single -Family Dwelling. Off-street parking shall be provided for a minimum of two motor vehicles per dwelling. 2. All Other Uses. Off-street parking and loading shall be provided subject to the requirements of DCC 18.116. FINDINGS: The applicant's submitted site plan shows each of the eight proposed dwellings would have a two -car garage as well as a driveway providing sufficient space for two more parking spaces, for a total of four off-street parking spaces for each dwelling. Therefore, the Hearings Officer finds the applicant's proposal satisfies this criterion. No other uses are proposed for the lots. F. Outdoor Lighting. All outdoor lighting shall be installed in conformance with DCC 15.10. FINDINGS: The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to install any outdoor lighting in conformance with the county's outdoor lighting standards in Chapter 15.10 of the Deschutes County Code. G. Excavation, Grading and Fill and Removal. Excavation, grading and fill and removal within the bed and banks of a stream or lake, or in a wetland shall be subject to DCC 18.128.040(W), unless the activity meets the exception provisions in DCC 18.120.050. FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant does not propose excavation, grading or fill and removal within the bed and banks of a stream or lake or in a wetland. H. Signs. All signs shall be constructed in accordance with the provisions of DCC 15.08. FINDINGS: The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring installation of any signs in conformance with the sign regulations in Chapter 15.08 of the Deschutes County Code. 1. Lot Requirements. Single -Family Dwelling. A new lot for a single-family dwelling served by a community or public sewerage system shall have a minimum area of 6,000 square feet and a minimum average width of 60 feet, except that a corner lot shall have a minimum average width of 70 feet. A new lot for a single-family dwelling served by an on-site septic system shall have a minimum area of 22,000 square feet and a minimum average width of 100 feet. Any new residential lot shall have a minimum width at the street of 50 feet, except for a lot on a cul- de-sac, in which case the minimum width shall be 30 feet. FINDINGS: As discussed below, under Section 18.110.060(J)(2) the proposed zero -lot -line subdivision is not subject to the lot requirements in this subsection. 2. All Other Uses. Every lot created for purposes other than residential use shall have dimensions for lot area, width and depth necessary for yard setbacks, landscaping, parking and utilities for the proposed use. FINDINGS: The Hearings Officer finds this criterion is not applicable because the proposed subdivision does not include anything other than residential uses. J. Land Divisions General. Notwithstanding any provision to the contrary contained herein or in other parts of the County Code, roads within the Resort Community Zone may be private roads and new lots or parcels may be created that have access from, and frontage on, private roads only. These roads must meet the private road standards of DCC Title 17, and are not subject to public road standards of DCC Title 17. An agreement acceptable to the County Road Department and County Legal Counsel shall be required for the maintenance of new private roads. FINDINGS: The proposed subdivision lots would have access from Seventh Mountain Drive and Elkai Woods Drive, both private roads within the Widgi Creek development. The applicant also proposes a new private to serve four of the proposed lots. Compliance with the private road standards in Title 17 is discussed in the findings below. 2. Zero Lot Line Subdivision. Notwithstanding any provision to the contrary contained herein, zero lot line subdivisions for single-family residences shall be allowed in the Resort Community Zone in accordance with the provisions of DCC Chapter 17.20. Zero lot line subdivisions are not subject to the setback provisions of 18.110.060(A), solar setback standards of 18.110.060(B)(1), lot coverage provisions of 18.110.060(D) or lot requirements of 18.110.060(1)(1). FINDINGS: The Hearings Officer finds that under this subsection, the proposed zero -lot -line subdivision is not subject to the building setback, solar setback, or lot coverage requirements applicable to other subdivisions in the RC Zone. For the foregoing reasons, the Hearings Officer finds the applicant's proposal satisfies, or with imposition of the above-described recommended conditions of approval, will satisfy all applicable provisions of the RC Zone. COMPREHENSIVE PLAN C. Deschutes County Comprehensive Plan 1. Section 4.8, Resort Communities Background A Resort Community is characterized as an unincorporated community that was established primarily for, and continues to be used primarily for, recreation and resort purposes (OAR 660-022-0010(6). It includes residential and commercial uses and provides for both temporary and permanent residential occupancy, including overnight lodging and accommodations. *** Inn of the Seventh Mountain/Widgi Creek * * * Land Use The Inn of the Seventh Mountain/Widgi Creek community boundary includes 260 acres (23 for the Inn and 237 for Widgi Creek). The property is used for recreational amenities, rental and residential units. The western boundary is Century Drive. The southern boundary is generally the Deschutes River Canyon. The entire resort community is bordered by the Deschutes National Forest. The predominant land use at the Inn is resort use with overnight lodging and recreation facilities for tourists, in addition to a restaurant, meeting rooms and a retail/rental sport shop. The predominant land use for Widgi Creek is residential, with single- family residential development and condominium units, in addition to a golf course. Fire and sewer services are currently provided by the City of Bend, with water service provided by on-site well. Utility services will continue to be provided in the current manner. * * * 2. Section 4.8, Resort Community Policies General Resort Community Policies Policy 4.8.1 Land use regulations shall conform to the requirements of OAR 660 Division 22 or any successor. Policy 4.8.2 Designated open space and common area, unless otherwise zoned for development, shall remain undeveloped except for community amenities such as bike and pedestrian paths, park and picnic areas. Areas developed as golf courses shall remain available for that purpose or for open space/recreation uses. Policy 4.8.4 Residential minimum lot sizes and densities shall be determined by the capacity of the water and sewer facilities to accommodate existing and future development and growth. * ** Inn of the Seventh Mountain/Widgi Creek Public Facility Policies * ** Policy 4.8.27 New uses or expansion of existing uses that require land use approval shall be approved only upon confirmation from the City of Bend that sewer service can be provided. (Emphasis added.) FINDINGS: Opponents argue the above -underscored language in Policy 4.8.2 prohibits the applicant's proposed 8-Iot, zero -lot -line subdivision because it would be located on "Common 18," a "designated common area," and therefore unless it is "otherwise zoned for development" it must "remain undeveloped except for community amenities. The applicant counters that the proposed subdivision site is not "designated common area" and therefor is not subject to Policy 4.8.2. The Hearings Officer finds that in order to resolve this dispute I must determine: (1) whether this plan policy constitutes an approval criterion for development in Widgi Creek; (2) whether "Common 18" is "designated common area;" and (3) whether "Common 18" was "otherwise zoned for development." Each of these issues is addressed in the findings below. 1. Policies as Approval Criteria. In Save Our Skyline v. City of Bend, 48 Or LUBA 192 (2004), LUBA held a comprehensive plan is a "potential" source of approval standards for quasi-judicial land use permit applications. LUBA described the proper analysis of the effect of plan provisions as follows: "Local governments and this Board have frequently considered the text and context of cited parts of comprehensive plans and concluded that the alleged comprehensive plan standard was not an applicable approval standard. Stewart v. City of Brookings, 31 Or LUBA 325, 328 (1996); Friends of Indian Ford v. Deschutes County, 31 Or LUBA 248 258 (1996); Wissusik v. Yamhill County, 20 Or LUBA 246, 254-55 (1990). Even if the comprehensive plan includes provisions that can operate as approval standards, those standards are not necessarily relevant to all quasi-judicial land use permit applications. Bennett v. City of Dallas, 17 Or LUBA at 456. Moreover, even if a plan provision is a relevant standard that must be considered, the plan provision might not constitute a separate mandatory approval criterion, in the sense that it must be separately satisfied, along with any other mandatory approval criteria, before the application can be approved. Instead, that plan provision, even if it constitutes a relevant standard, may represent a required consideration that must be balanced with other relevant considerations. See Waker Associates, Inc. v. Clackamas County, 111 Or App 189, 194, 826 P2d 20 (1992) Ca balancing process that takes account of relative impacts of particular uses on particular [comprehensive plan] goals and of the logical relevancy of particular goals to particular uses is a decisional necessity). Before considering whether particular plan provisions must be applied as approval standards when considering individual land use permit applications, it is appropriate, as the hearings officer did in this case, to consider first whether the comprehensive plan itself expressly assigns a particular role to some or all of the plan's goals and policies. Downtown Comm. Assoc. v. City of Portland, 80 Or App 336, 339, 722 P2d 1258 (1986); Eskadarian v. City of Portland, 26 Or LUBA 98, 103 (1993); Schellenberg v. Polk County, 21 Or LUBA 425, 429 (1991); Miller v. City of Ashland, 17 Or LUBA 147, 167-69 (1988). We review the hearings officer interpretation of the BAGP [Bend Area General Plan] to determine if her interpretation is correct. McCoy v. Linn County, 90 Or App 271, 275-76, 752 P2d 323 (1988)." The Hearings Officer most recently addressed the issue of application of plan policies to a quasi-judicial land use application in my decision in Leading Edge Aviation (A-13-4, SP -13-7), on remand from LUBA. In that case, I found nothing in the county's comprehensive plan, plan policies, Transportation System Plan (TSP), Bend Airport Master Plan (AMP), or Bend Airport Layout Plan (ALP) constituted an applicable approval standard for the applicant's proposed site plan for development at the Bend Airport. I made the following relevant findings: "In Bothman v. City of Eugene, 51 Or LUBA 426 (2006), LUBA was asked to consider the effect on a zone change application of a geographically -specific 'area plan' adopted as part of the city's comprehensive plan. The area plan language stated its policies were 'guidesfor land use actions within the area subject to the plan, required the city to 'recognize' existing uses in the area, and 'discouraged' the city from rezoning the subject property. LUBA held that although this area plan did not expressly prohibit rezoning the subject property and was not couched in absolute terms, it nevertheless expressed a strong policy preference that the subject property retain its existing zoning. LUBA held that 'read in context the policy clearly mandates that the city be guided by -- at a minimum, consider -- that preference in the context of an application to rezone the subject property.' LUBA remanded for the city to reconsider its rezoning decision in light of this policy. Based on LUBA 's direction on remand, as well as the analysis in Save Our Skyline, the Hearings Officer finds I must examine the text and context of the comprehensive plan, TSP, AMP and ALP to determine if any provisions therein prohibit the siting of the applicant's fueling station on the subject property. And because the Bend Airport AMP and ALP are, like the area plan in Bothman, geographic- and site-specific plans adopted as part of the comprehensive plan, I must also determine whether and to what extent these plans are to be considered and balanced with other policy considerations in evaluating the applicant's site plan application." In Leading Edge, the Hearings Officer reviewed the comprehensive plan and found numerous statements therein indicating the plan was not intended to establish approval criteria for the applicant's quasi-judicial land use application. Based on the Hearings Officer's Leading Edge decision and the cases cited therein, I find my analysis of the plan policies at issue here must begin with an examination of the plan text to determine whether the plan assigns a particular role to some or all of the plan's policies. The preamble of the comprehensive plan includes the following language: The Deschutes County Comprehensive Plan is a statement of issues, goals and policies meant to guide the future of land use in this County. This Comprehensive Plan is intended to recognize the expectations and rights of property owners and the community as a whole. Use of this Plan The Comprehensive Plan is a tool for addressing changing conditions, markets and technologies. It can be used in multiple ways, including: * * * To guide public decisions on land use policy when developing land use codes, such as zoning or land divisions. This Plan does not prioritize one goal or policy over another. Implementation of this plan requires flexibility because the weight given to the goals and policies will vary based on the issue being addressed. The Plan is not intended to be used to evaluate specific development projects. Instead, the Plan is a 20 -year blueprint to guide growth and development. (Emphasis added.) The preamble describes plan policies as follows: Policies: Statements of principles and guidelines to aid decision making by clarifying and providing direction on meeting the Goals. (Emphasis added.) Thus, the comprehensive plan appears to contemplate that plan policies will serve only as guidelines. However, the plan policies themselves, and particularly Policy 4.8.2, are written in mandatory language that strongly suggests they were not intended to be mere "guidelines." In Bothman, cited above, LUBA held the city erred in not "considering" a geographically -specific plan policy stating the city should "recognize" an area's existing zoning and "discourage" its rezoning. LUBA stated the policy was relevant to the proposed rezoning because it expressed a "strong preference" for the area's existing zoning. In contrast, Policy 4.8.2 states areas in Widgi Creek developed as golf courses "shall" remain available for that purpose or for open space/recreation uses. The Hearings Officer finds this language clearly expresses more than a "preference" for retaining designated common areas as undeveloped or developed with community amenities. Moreover, the context of this policy — i.e., the county's 2001 adoption of a "physically developed" Goal 4 exception and RC designation and zoning for Widgi Creek — explains this mandatory language. As discussed in the findings above, both the goal exception and the redesignation and rezoning of Widgi Creek were intended to authorize continuation of the existing resort which was a nonconforming use in the Forest Zone, while also limiting uses in accordance with the unincorporated communities administrative rules. In other words, the board did not want Widgi Creek to be redeveloped as a large urban -density residential subdivision located miles from the Bend urban growth boundary. For the foregoing reasons, the Hearings Officer finds Policy 4.8.2 establishes a mandatory approval criterion for Widgi Creek development. 2. Areas "Designated Common Area." "Common 18" is located at the intersection of Seventh Mountain Drive and Elkai Woods Drive and currently is developed with community amenities consisting of a swimming pool, community building, parking areas and landscaping. Policy 4.8.2 states areas designated as common area shall "remain" undeveloped except for community amenities. The ordinary definition of "remain" is "to continue; to remain standing, endure, outlast." Webster's New World Dictionary and Thesaurus, Second Edition. Based on this definition, the Hearings Officer finds that by including the phrase "remain undeveloped except for community amenities," Policy 4.8.2 was intended to maintain the status quo in Widgi Creek as of 2001. Therefore, I find the relevant question is whether the proposed subdivision site was "designated common area" in 2001 when Policy 4.8.2 was adopted. The 1999 plat for the Elkai Woods Townhomes Phase III Subdivision shows the proposed site as "Common 18" surrounded by platted residential lots and another common area — "Common 21 in Elkai Woods Townhomes Phase V. In her final argument, the applicant's attorney Tia Lewis argued the designation of "Common 18" is not relevant for the following reasons: "The subject property was improperly marked 'common area' on the plat but is privately owned, has never been part of the common area of any of the communities within Widgi Creek and is not supported or otherwise funded by any common assessments or owner fees. The subject property does not meet the definition of common area in the County Code or state statute and has specifically been excluded from all CC&Rs within the Widgi Community and the definitions of common areas therein. See Amended Declaration of Covenants, Conditions and Restrictions for Elkai Woods Homeowners Association, Inc., and Elkai Woods Fractional Homeowners Association, Inc., together with subsequent judicial decree and amendments, attached hereto as Exhibit D. It was not dedicated to the public or the homeowners on the plat or through any other declaration. In fact, it has always been privately owned and was conveyed to the current owner at the same time as the golf course by the Bankruptcy Trustee in 2004. Title 18 does not contain a definition of common area; however Section 5.2 of the County's Comprehensive Plan defines 'Common Area' as 'common property as defined in the Oregon Planned Communities Act at ORS 94.550(7).' The Oregon Planned Communities Act defines 'common property' as 'any real property or interest in real property within a planned community which is owned, held or leased by the homeowners association or owned as tenants in common by the lot owners, or designated in the declaration or the plat for transfer to the association. The subject property is not now and has never been owned by any HOA, has never been owned as tenants in common and was not designated for transfer to the HOA on the plat or in any declaration. In fact, all Elkai Woods declarations specifically exclude the area from the definitions of common area, and the HOAs have repeatedly disclaimed any responsibility or ownership of the property. The present partial replat application is to remove the common area notation from the plat."(Underscored emphasis in original.) The Hearings Officer understands Ms. Lewis to argue Common 18 is not designated common are for two reasons: (1) it is unique among common areas in Elkai Woods because it was not dedicated to the public or dedicated or conveyed to an HOA on the plat; and (2) the lack of such dedication or conveyance means Common 18 does not fall within the definition of "common area" in the comprehensive plan. With respect to the first argument, I find Common 18 is not unique in not having been dedicated to the public or transferred to an HOA on the subdivision plat. ORS 92.075 requires that any public dedications or restrictions applicable to subdivisions be stated in the declaration by which the subdivision is created — i.e., the first page of the recorded subdivision. I have not found, nor has Ms. Lewis identified, a dedication to the public or transfer to an HOA for any common areas on any of the Elkai Woods Townhomes plat declarations.4 4 Copies of the Elkai Woods Townhomes plats are included in the record as attachments PH -3 through PH -8 to the applicant's January 20, 2015 submission. The Hearings Officer finds the definition of "common area" in the comprehensive plan also does not support Ms. Lewis' argument that Common 18 was improperly designated. That definition refers to the "common property" definition in ORS Chapter 94 which governs "planned communities." Under ORS 94.580, such a community is created through a planned community declaration on or with the subdivision plat that includes a large number of specific components. However, there is nothing in this record that indicates the Elkai Woods Townhomes Subdivisions in general, or Elkai Woods Townhomes Phase III in particular, were developed as planned communities. Ms. Lewis did not identify, nor have I been able to locate, any such planned community declarations on the Elkai Woods Townhomes Subdivision plats. Finally, in former Hearings Officer Briggs' 2006 decision approving Points West, she addressed the issue of determining which Widgi Creek property is subject to Policy 4.8.2. In that case, opponents argued that some of the proposed site for Points West was in the Widgi Creek Golf Course and therefore could not be developed with residences. Hearings Officer Briggs held the proposed site was not a part of the golf course and therefore could be developed. She went on to hold areas "specifically identified as open space or common area on the Widgi Creek plat" are subject to Policy 4.8.2, based on the following relevant findings: "The findings adopted by the Board of County Commissioners in support of the amendments regarding the Inn/Widgi Creek resort community contemplate additional residential development within the area of the subject property, specifically 8-9 acres near the rim rock and the former Inn sewage treatment facilities. Those areas appear to be included within the subject property's [Points West] boundaries. Therefore, it is not inconceivable that areas the neighbors assumed would remain undeveloped would be built upon at some point. Here, the evidence supports a finding that only those areas that were specifically identified as open space or common area on the Widgi Creek plat are subject to that portion of the policy. The subject property does not include any areas subject to those designations. In addition, the language of the policy, which requires that 'developed golf courses' be retained, implies that undeveloped portions of golf courses may, in some circumstances, be developed. Here, the applicant presented evidence that the 'out of bounds' markers form the boundary between the 'developed golf course' and other areas. That evidence is substantial evidence to support a finding that the proposed development is consistent with this policy."(Emphasis added.) Hearings Officer Briggs' holding is consistent with the history of Policy 4.8.2 which was adopted in 2001 to implement a "physically developed" exception to Goal 4 and the "resort community" plan designation and zoning for Widgi Creek. As discussed above, the county made the following relevant findings concerning the status of Widgi Creek in 2001: "A small 1.2 -acre area formerly used for on-site sewage treatment, located near the boundary with Widgi Creek to the east, might be redeveloped some day for resort uses, but no plans exist as of now for this to occur. This area is surrounded by resort development and could only be redeveloped in the future for resort purposes. A second area on the property, approximately 13 acres in size, of which only about 8-9 acres is usable due to steep slopes down to the Deschutes River, could possibly be developed in the future for resort facilities such as a lodge, single-family or multi -family dwellings, or conference center. * * * Widgi Creek was approved in 1983 as a resort including 107 homes, 103 townhouses, a regulation golf course and appurtenant golf fa including clubhouse, range and maintenance facilities. The physical developments at WidgCreek encompass 237 acres and are shown on Figures 5 and 6 (an aerial photograph). The Iayout for town homes, known 83Elt8/Woods, is depicted on Figure 6." The board found that in 2001 the Widgi Creek development consisted of a residential component (approval for 107 single-family dwellings and 103 tovvnhoueea), a resort component (regulation golf course and appurtenant facilities, clubhouse, and tennis courts), common areas and open apace, and infrastructure including roada, paihvvaya, and sewer and water facilities. These approvals and facilities were the basis of the county's determination that Widgi Creek qualified for a "physically developed" exception and was "for all practical purposes built out." The board also found Widgi Creek included two specific areas that were available for future development. Fina||y, the board incorporated the aerial photos and diagrams attached as Figures 3, 5, 6 and 7 to Ordinance Nos. 2001-047 and 2001-048 which showed Widgi Creek and Elkai Woods as they existed and/or were approved in 2001. Figure 7 depicts the location and layout of the approved residential lots in Elkai VVoode, along with the designated common areas including Common 18 and the "meeting facility and swimming pool" located thereon. Based on the board's goal exception and RC Zone findings and supporting documents, the Hearings Officer finds that with the exception of the developable 8-9 acres identified in the board's findings, the board concluded the approvals and developed elements of Widgi Creek that existed in 2001 constituted the status quo that Policy 4.8.2 was intended to preserve. And | find the board intended residential development of the 8-9 acres would be governed by the RC Zone and by plan Policy 4.8.4 which states: Residential minimum lot sizes and densities shall be determined by the capacity of the water and sewer facilities to accommodate existing and future development and growth. Based on the foregoing analysis, the Hearings Officer finds that when Policy 4.8.2 was adopted in 2001, the board intended it to assure all Widgi Creek areas that were "physically developed" — everything except the two identified undeveloped areas — would continue in their then -current uses or would be developed with "community amenities" or "open space/recreation ueee." | find that because the proposed subdivision site was not identified as within the 8-9 developable acres in Widgi Creek, was clearly designated "common area" on the Elkai Woods Townhomes Phase ||| Subdivision plat, and was shown on Figure 7 as developed "meeting facility and swimming poo|.''the proposed subdivision site is subject to the prohibition in Policy 4.8.2 against development with anything other than community amenities. 3. Otherwise Zoned for Development. The Hearings Officer finds nothing in Ordinance Nos. 2001-047 and 200-048, the RC Zone, or the RC plan policies, that "otherwise zoned" Common 18 for residential development. The Hearings Officer finds the proposed subdivision site is subject to Policy 4.8.2 because it was "designated common area" in 2001. Therefore, | cannot approve the proposed residential subdivision. However, because | anticipate this decision will be appealed to the board and the board may elect to hear the appeal, to assist the board and county staff U have included in this decision findings concerning the proposal's compliance with applicable provisions of the comprehensive plan and Titles 17 and 18 and ORS Chapter 92, as well as recommended conditions of approval. SUBDIVISION STATUTES D. Oregon Revised Statutes (ORS) Chapter 92, Subdivisions and Partitions Replatting 1. ORS 92.185, Reconfiguration of lots or parcels and public easements; vacation; notice; utility easements. The act of replatting shall allow the reconfiguration of lots or parcels and public easements within a recorded plat. Except as provided in subsection (5) of this section, upon approval by the reviewing agency or body as defined in ORS 92.180, replats will act to vacate the platted lots or parcels and easements within the replat area with the following conditions: (1) A replat, as defined in ORS 92.010 shall apply only to a recorded plat. FINDINGS: The applicant requests approval to replat a portion of the recorded Elkai Woods Townhomes III Subdivision to remove the "common area" designation for the proposed subdivision site and to plat eight new lots. The term "reconfiguration" is not defined in ORS Chapter 92. The ordinary definition of the term "configuration" is "arrangement of parts; outline." Webster's New World Dictionary and Thesaurus, Second Edition. Based on this definition, the Hearings Officer finds the term "reconfiguration" means the alteration of an arrangement or outline. And in the context of this statute, I find it means altering the arrangement of lots, parcels or public easements. I find removal of a common area designation on a plat does not alter the configuration of lots, parcels or easements. Therefore, I find the applicant's proposal to remove that designation does not constitute a "replat" and is not authorized under ORS Chapter 92. (2) Notice shall be provided as described in ORS 92.225 (4) when the replat is replatting all of an undeveloped subdivision as defined in ORS 92.225. FINDINGS: The Hearings Officer finds this requirement does not apply because the subject property is not an undeveloped subdivision as defined in ORS 92.225. (3) Notice, consistent with the governing body of a city or county approval of a tentative plan of a subdivision plat, shall be provided by the governing body to the owners of property adjacent to the exterior boundaries of the tentative subdivision replat. FINDINGS: As discussed in the Findings of Fact above, the county provided written notice of the applicant's proposal and the public hearing to the owners of record of all property within 250 feet of the subject property's boundary, and notice also was provided to public and private agencies. These notices were provided pursuant to Title 22, the county's procedures ordinance. (4) When a utility easement is proposed to be realigned, reduced in width or omitted by a replat, all affected utility companies or public agencies shall be notified, consistent with a governing body's notice to owners of property contiguous to the proposed plat. Any utility company that desires to maintain an easement subject to vacation under this section must notify the governing body in writing within 14 days of the mailing or other service of the notice. FINDINGS: The Hearings Officer finds this requirement is not applicable because the applicant does not propose any changes to a utility easement. (5) A replat shall not serve to vacate any public street or road. FINDINGS: The Hearings Officer finds this requirement is not applicable because the applicant does not propose to vacate any public street or road. (6) A replat shall comply with all subdivision provisions of this chapter and all applicable ordinances and regulations adopted under this chapter. FINDINGS: The Hearings Officer finds the provisions of ORS Chapter 92 are implemented through Title 17 of the Deschutes County Code. Compliance with those provisions is discussed in the findings below. 2. ORS 92.190, Effect of replat; operation of other statutes; use of alternate procedures. (1) The replat of a portion of a recorded plat shall not act to vacate anv recorded covenants or restrictions. * * *. (Emphasis added.) FINDINGS: The Hearings Officer finds it is unclear what the statutory terms "recorded covenants and restrictions" mean. They are not defined in ORS Chapter 92. However, I concur with opponent HOAs that the term "covenant" likely means CC&Rs. The parties disagree as to whether any existing CC&Rs apply to "Common 18." In any case, I find that any CC&Rs applicable to the proposed subdivision site are not enforceable by the county. The HOAs argue the term "restrictions" in the statute is broad enough to include the provisions of Policy 4.8.2 discussed above. I disagree. I find that in its context, the terms "recorded covenants and restrictions" mean recorded documents pertaining to and running with specific real property, including land use permits and approvals, but not including local government land use regulations. Finally, the HOAs argue the terms "recorded covenants and restrictions" includes the October 14, 1998 "Conditions of Approval Agreement" (No. 98-457153) recorded at Volume 571 Page 1675 of the Deschutes County Clerk's Book of Deeds (hereafter "agreement"). A copy of the agreement is included in the record as an attachment to the January 5, 2015 letter from opponents Edward and M. Jeanne Coulson. The agreement is between the county and the property owner's predecessor Yamazoe International, Inc., and was executed to assure compliance with the conditions of approval in SP -98-42 which granted site plan approval for the community amenities on "Common 18." Opponent HOAs note in their January 20, 2015 submission that Yamozoe's burden of proof for the community amenities site plan stated in relevant part: "With the filing of site plans for the clubhouse expansion and amenities complex, the resort will finally be completed with all of the facilities and recreational amenities originally contemplated in the 1983 master plan. * * * The amenities complex is designed to serve the residents and guests of Widgi Creek, primarily Elkai Woods Townhomes." Condition 13 of SP -98-42 stated: "The applicant shall sign and enter into a Conditions of Approval Agreement with Deschutes County to ensure that all elements of the site plan shall be installed and maintained as approved. This agreement shall be approved and recorded with the Deschutes County Clerk prior to issuance of the building permit for any new structure."(Emphasis added.) The Conditions of Approval agreement states in relevant part: "Construction and Permanent Maintenance. If Developer is required under the Permit to construct improvements of any kind or to install landscaping or plantings and Developer elects to proceed with development under the permit, Developer agrees: (1) to undertake the construction and landscaping required under the land use permit, as more specifically set forth in the conditions set out herein and in the land use permit; and (2) in the event that this Agreement and the Permit do not expire as set forth herein, to the permanent maintenance of required landscaping and improvements." The agreement also includes the following provisions: Expiration. This Agreement and the Permit shall expire on its expiration date or by the revocation of the Permit or by the explicit release by the County from this Agreement granted as part of an approval for a change of use of the Real Property. Additionally, this Agreement and the Permit shall automatically expire upon the foreclosure of any prior encumbrance upon the Real Property which results in the extinguishment of this Agreement. * * * Persons Bound bv Agreement. The original of this Agreement shall be recorded with the Deschutes County Clerk and shall run with the land. It is the intent of the parties that the provisions of this Agreement shall be binding upon the parties, the parties' successors, heirs, executors, administrators, and assigns, or any other parties deriving any right, title or interest or use in the Real Property, including any person who holds such interests as security for payment on any obligation, including the Mortgagee or other secured party in actual possession of the Real Property by foreclosure or otherwise or any person taking title from such security holder."(Emphasis added.)5 The agreement does not include an expiration date, nor is there any evidence in the record that the county has released the property owner from the agreement through a change of use approval or in any other manner. Therefore, even assuming the applicant's proposal to remove the "common area" designation from the proposed subdivision site is authorized as a replat under ORS Chapter 92, the Hearings Officer finds such a replat would not vacate the conditions of approval agreement requiring the applicant to permanently maintain the required improvements to the property — i.e., the community amenities including the pool, community building, parking areas and landscaping. For the foregoing reasons, the Hearings Officer finds the applicant's proposed partial replat of the Elkai Woods Townhomes Phase III Subdivision is not authorized under ORS 92.185, and under ORS 92.190 does not relieve the property owner of the obligation under the Conditions of Approval agreement to permanently maintain the existing community amenities on the proposed subdivision site. LANDSCAPE MANAGEMENT ZONE STANDARDS 2. Chapter 18.84, Landscape Management Combining Zone (LM) a. Section 18.84.020, Application of Provisions The provisions of DCC 18.84 shall apply to all areas within one- fourth mile of roads identified as landscape management corridors in the Comprehensive Plan and the County Zoning Map. The provisions of DCC 18.84 shall also apply to all areas within the boundaries of a State scenic waterway or Federal wild and scenic river corridor and all areas within 660 feet of rivers and streams otherwise identified as landscape management corridors in the Comprehensive Plan and the County Zoning Map. This distance specified above shall be measured horizontally from the centerline of designated landscape management roadways or from the nearest ordinary high water mark of a designated landscape management river or stream. The limitations in DCC 18.84.020 shall not unduly restrict accepted agricultural practices. FINDINGS: The proposed subdivision lots would be located within the landscape management corridor for both Cascade Lakes Highway and the Deschutes River, and therefore the LM Zone applies to the applicant's proposal. b. Section 18.84.030, Uses Permitted Outright Uses permitted in the underlying zone with which the LM Zone is combined shall be permitted in the LM Zone, subject to the provisions in DCC 18.84. 5 The record indicates the property owner obtained title to "Common 18" through a conveyance by a bankruptcy trustee. FINDINGS: Single-family dwellings are permitted outright in the SMWCR Zone, and therefore also are permitted outright in the LM Zone. c. Section 18.84.050, Use Limitations A. Any new structure or substantial alteration of a structure requiring a building permit, or an agricultural structure, within an LM Zone shall obtain site plan approval in accordance with DCC 18.84 prior to construction. As used in DCC 18.84 substantial alteration consists of an alteration which exceeds 25 percent in the size or 25 percent of the assessed value of the structure. B. Structures which are not visible from the designated roadway, river or stream and which are assured of remaining not visible because of vegetation, topography or existing development are exempt from the provisions of DCC 18.84.080 (Design Review Standards) and DCC 18.84.090 (Setbacks). An applicant for site plan review in the LM Zone shall conform with the provisions of DCC 18.84, or may submit evidence that the proposed structure will not be visible from the designated road, river or stream. Structures not visible from the designated road, river or stream must meet setback standards of the underlying zone. (Emphasis added.) FINDINGS: The applicant's proposal includes eight new single-family dwellings. The staff report states, and the Hearings Officer's site visit observations confirmed, that none of the proposed dwellings would be visible from Cascade Lakes Highway or the river because of the distance and the existing development, vegetation and topography between "Common 18" and the highway and river. Therefore, I find the proposed dwellings will not be visible and will remain not visible from the river and highway and accordingly are exempt from the provisions of Section 18.84.080 (Design Review Standards) and Section 18.84.090 (Setback Standards). f. 18.84.095, Scenic Waterways Approval of all structures in a State Scenic Waterway shall be conditioned upon receipt of approval of the State Parks Department. FINDINGS: As discussed above, the Hearings Officer has found the proposed dwellings would be located within one-quarter mile of the Deschutes River, and therefore would be located within State Scenic Waterway for the river. I have found that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to obtain approval from the Oregon State Parks Department prior to submitting the final subdivision plat for approval. For the foregoing reasons, and with imposition of the recommended condition of approval, the Hearings Officer finds the applicant's proposal will satisfy all applicable LM Zone standards. SUPPLEMENTARY PROVISIONS 3. Chapter 18.116, Supplementary Provisions a. Section 18.116.030, Off -Street Parking and Loading A. Compliance. No building or other permit shall be issued until plans and evidence are presented to show how the off-street parking and loading requirements are to be met and that property is and will be available for exclusive use as off-street parking and loading. The subsequent use of the property for which the permit is issued shall be conditional upon the unqualified continuance and availability of the amount of parking and loading space required by this title. FINDINGS: The submitted site plan shows there is space on each proposed subdivision lot for at least four off-street parking spaces per dwelling, including two spaces within each garage and two spaces on the driveways. Therefore, the Hearings Officer finds the applicant's proposal satisfies the off-street parking requirements discussed below under Paragraph C of this section. B. Off -Street Loading. Every use for which a building is erected or structurally altered to the extent of increasing the floor area to equal a minimum floor area required to provide loading space and which will require the receipt or distribution of materials or merchandise by truck or similar vehicle, shall provide off-street loading space on the basis of minimum requirements as follows: FINDINGS: The Hearings Officer finds this criterion is not applicable because the proposed dwellings do not require a loading berth. C. Off-street parking. Off street parking spaces shall be provided and maintained as set forth in DCC 18.16.030 for all uses in all zoning districts. Such off-street parking spaces shall be provided at the time a new building is hereafter erected or enlarged or the use of a building on the effective date of DCC Title 18 is changed. D. Number of spaces required. Off-street parking shall be provided as follows: * * * Residential. Use One, two and three family dwellings Requirements 2 spaces per dwelling unit FINDINGS: The applicant proposes four off-street parking spaces for each dwelling, including two spaces in the garages and two spaces on the driveways, therefore satisfying this criterion. E. General Provisions. Off -Street Parking 1. More Than One Use on One or More Parcels. In the event several uses occupy a single structure or parcel of land, the total requirement for off-street parking shall be the sum of requirements of the several uses computed separately. FINDINGS: The applicant proposes only a single residential use on each new residential lot. Therefore, the Hearings Officer finds this criterion is not applicable. 2. Joint Use of Facilities. The off-street parking requirements of two or more uses, structures or parcels of land may be satisfied by the same parking or loading space used jointly to the extent that it can be shown by the owners or operators of the uses, structures or parcels that their operations and parking needs do not overlap at any point of time. If the uses, structures or parcels are under separate ownership, the right to joint use of the parking space must be evidence by a deed, lease, contract or other appropriate written document to establish the joint use. FINDING: The Hearings Officer finds this criterion is not applicable because the applicant does not propose that the off-street parking for the dwellings would be available for additional uses. 3. Location of Parking Facilities. Off-street parking spaces for dwellings shall be located on the same lot with the dwelling. Other required parking spaces shall be located on the same parcel or another parcel not farther than 500 feet from the building or use they are intended to serve, measured in a straight line from the building in a commercial or industrial zone. Such parking shall be located in a safe and functional manner as determined during site plan approval. The burden of proving the existence of such off -premise parking arrangements rests upon the applicant. FINDINGS: The applicant's submitted site plan shows all required off-street parking spaces would be located on each proposed residential lot, therefore satisfying this criterion. 4. Use of Parking Facilities. Required parking space shall be available for the parking of operable passenger automobiles of residents, customers, patrons and employees only and shall not be used for the storage of vehicles or materials or for the parking of trucks used in conducting the business or used in conducting the business or use. FINDINGS: The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring that parking spaces for the dwellings be available for the parking of operable passenger automobiles of residents only and shall not be used for the storage of vehicles or materials or for the parking of trucks used in conducting the business or used in conducting the business or use. 5. Parking, Front Yard. Required parking and loading spaces for multi -family dwellings or commercial and industrial uses shall not be located in a required front yard, except in the Sunriver UUC Business Park (BP) District and the La Pine UUC Business Park (LPBP) District and the LaPine UUC Industrial District (LPI), but such space may be located within a required side or rear yard. FINDINGS: The Hearings Officer finds this criterion is not applicable because no multi -family dwellings or commercial or industrial uses are proposed. F. Development and Maintenance Standards for Off -Street Parking Areas. Every parcel of land hereafter used as a public or private parking area, including commercial parking lots, shall be developed as follows: 1. Except for parking to serve residential uses, an off- street parking area for more than five vehicles shall be effectively screened by a sight obscuring fence when adjacent to residential uses, unless effectively screened or buffered by landscaping or structures. FINDINGS: The Hearings Officer finds this criterion is not applicable because the proposed parking will serve residential uses. 2. Any lighting used to illuminate off-street parking areas shall be so arranged that it will not project light rays directly upon any adjoining property in a residential zone. FINDINGS: The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring that any lighting used to illuminate off-street parking areas be installed so that it will not project light directly upon any adjoining property. 3. Groups of more than two parking spaces shall be located and designed to prevent the need to back vehicles into a street or right of way other than an alley. FINDINGS: At the outset, staff questions whether this criterion is applicable where, as here, the applicant is only required to provide two parking spaces per dwelling, and the parking spaces are not truly in "groups" but rather are located on adjacent residential lots. The Hearings Officer finds this subsection applies to parking lots or areas for uses that require more than two spaces, and not to optional parking spaces provided on residential driveways. Read otherwise, this paragraph could prohibit the typical residential driveway design that requires vehicles to back onto a street. Therefore, I find this criterion does not apply to the applicant's proposal. 4. Areas used for standing and maneuvering of vehicles shall be paved surfaces adequately maintained for all weather use and so drained as to contain any flow of water on the site. An exception may be made to the paving requirements by the Planning Director or Hearings Body upon finding that: a. A high water table in the area necessitates a permeable surface to reduce surface water runoff problems; or b. The subject use is located outside of an unincorporated community and the proposed surfacing will be maintained in a manner which will not create dust problems for neighboring properties; or c. The subject use will be in a Rural Industrial Zone or an Industrial District in an unincorporated community and dust control measures will occur on a continuous basis which will mitigate any adverse impacts on surrounding properties. FINDINGS: The Hearings Officer finds none of the exceptions in this subsection applies to the applicant's proposal. The submitted tentative plan shows that all driveways will be paved and will connect to Seventh Mountain Drive or to the proposed private road, both of which would be paved. Opponents raised concerns about existing stormwater drainage problems in the vicinity of the subject property and potential contribution to those problems from the proposed dwellings. I find that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring that the applicant to design, construct and maintain the paved driveways so that any surface water drainage will be contained on each lot or diverted to existing storm drain facilities. 5. Access aisles shall be of sufficient width for all vehicular turning and maneuvering. FINDINGS: The Hearings Officer finds this criterion is not applicable because no access aisles are proposed. 6. Service drives to off-street parking areas shall be designed and constructed to facilitate the flow of traffic, provide maximum safety of traffic access and egress and maximum safety of pedestrians and vehicular traffic on the site. The number of service drives shall be limited to the minimum that will accommodate and serve the traffic anticipated. Service drives shall be clearly and permanently marked and defined through the use of rails, fences, walls or other barriers or markers. Service drives to drive in establishments shall be designed to avoid backing movements or other maneuvering within a street other than an alley. 7 Service drives shall have a minimum vision clearance area formed by the intersection of the driveway centerline, the street right of way line and a straight line joining said lines through points 30 feet from their intersection. FINDINGS: The Hearings Officer finds these criteria are not applicable because no service drives are proposed. 8. Parking spaces along the outer boundaries of a parking area shall be contained by a curb or bumper rail placed to prevent a motor vehicle from extending over an adjacent property line or a street right of way. FINDINGS: The Hearings Officer finds the proposed garage parking spaces will be sufficiently contained within the garage structure so that no curbs or bumpers are required. G. Off -Street Parking Lot Design. All off-street parking lots shall be designed subject to County standards for stalls and aisles as set forth in the following drawings and table: (SEE TABLE 1 AT END OF CHAPTER 18.116) 1. For one row of stalls use "C" + "D" as minimum bay width. 2. Public alley width may be included as part of dimension "D," but all parking stalls must be on private property, off the public right of way. 3. For estimating available parking area, use 300-325 square feet per vehicle for stall, aisle and access areas. 4. For large parking lots exceeding 20 stalls, alternate rows may be designed for compact cars provided that the compact stalls do not exceed 30 percent of the total required stalls. A compact stall shall be eight feet in width and 17 feet in length with appropriate aisle width. FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant does not propose a "parking lot." c. Section 18.116.031, Bicycle Parking New development and any construction, renovation or alteration of an existing use requiring a site plan review under this title for which planning approval is applied for after the effective date of Ordinance 93-005 shall comply with the provisions of this section. A. Number and Type of Bicycle Parking Spaces Required. General Minimum Standard. All uses that require off-street motor vehicle parking shall, except as specifically noted, provide one bicycle parking space for every five required motor vehicle parking spaces. Except as specifically set forth herein, all such parking facilities shall include at least two sheltered parking spaces or, where more than 10 bicycle spaces are required, at least 50 percent of the bicycle parking spaces shall be sheltered FINDINGS: The Hearings Officer finds this criterion is not applicable because each proposed dwelling is required to have fewer than five off-street parking spaces. d. Section 18.116.180, Building Setbacks for the Protection of Solar Access FINDINGS: As discussed above, under Section 18.110.060(J)(2) dwellings in the proposed zero -lot -line subdivision are not subject to solar setbacks. For the foregoing reasons, and with imposition of the recommended conditions of approval, the Hearings Officer finds the applicant's proposal will satisfy all applicable approval criteria in the supplementary provisions. SITE PLAN REVIEW CRITERIA 4. Chapter 18.124, Site Plan Review a. Section 18.124.030, Approval Required A. No building, grading, parking, land use, sign or other required permit shall be issued for a use subject to DCC 18.124.030, nor shall such a use be commenced, enlarged, altered or changed until a final site plan is approved according to DCC Title 22, the Uniform Development Procedures Ordinance. B. The provisions of DCC 18.124.030 shall apply to the following: 1. All conditional use permits where a site plan is a condition of approval; 2. Multiple -family dwellings with more than three units; 3. All commercial uses that require parking facilities; 4. All industrial uses; 5. All other uses that serve the general public or that otherwise require parking facilities, including, but not limited to, landfills, schools, utility facilities, churches, community buildings, cemeteries, mausoleums, crematories, airports, parks and recreation facilities and livestock sales yards; and 6. As specified for Flood Plain Zones (FP) and Surface Mining Impact Area Combining Zones (SMIA). 7. Non-commercial wind energy system generating greater than 15 to 100 kW of electricity. C. The provisions of DCC 18.124.030 shall not apply to uses involving the stabling and training of equine in the EFU zone, noncommercial stables and horse events not requiring a conditional use permit. D. Noncompliance with a final approved site plan shall be a zoning ordinance violation. E. As a condition of approval of any action not included in DCC 18.124.030(B), the Planning Director or Hearings Body may require site plan approval prior to issuance of any permits. FINDINGS: The applicant's proposal does not fall within any of the use categories listed in this section as requiring site plan approval. However, the Hearings Officer finds site plan approval is required for the applicant's proposal because zero -lot -line subdivisions require site plan approval under Chapter 17.20 of the subdivision ordinance. Compliance with the site plan approval criteria is addressed in the findings below. b. Section 18.124.060, Approval Criteria A. The proposed development shall relate harmoniously to the natural environment and existing development, minimizing visual impacts and preserving natural features including views and topographical features. FINDINGS: 1. Natural Environment. The Hearings Officer finds the natural environment surrounding "Common 18" consists of native vegetation and topography within Widgi Creek and on surrounding public forest lands. However, I find "Common Area 18" does not include much "natural environment," having been fully developed with community amenities including a swimming pool, community building, parking areas and landscaping. However, the existing topography will be altered for the proposed eight -lot subdivision. I find the applicant's proposal will preserve the natural topography to the extent possible considering development constraints. | also find that although the applicant's proposal will have no visual impacts on Cascade Lakes Highway or the Deschutes River. FinaUy, as discussed in the findings below, | have recommended that the applicant be required as a condition of approval to submit true color samples for the dwelling exterior finishes to assure they will blend with the natural environment. | find that with imposition of this condition of approval the applicant's proposal will relate harmoniously with the natural environment. 2. Existing Development. The Hearings Officer finds existing development surrounding "Common 18" consists of the rest of the lnn/Widgi Creek resort community, including residential uses, resort -related commercial uses (e.g., the clubhouse nostaunanU, the golf course and appurtenant faci|iUee, tennis courta, poo|, private roads and patha, and other infrastructure. Existing development close to "Common 18" consists of other Elkai Woods townhomes and the private roads serving them. Opponents argue the applicant's proposal will not relate harmoniously with this nearby residential development for four reasons, each of which is discussed below. a. Metal Roofs. Opponents believe the proposed metal roofs will be inconsistent with the existing non-metal townhome roofs. Hovvevar. Section 18.84.080(\) of the LM Zone specifically allows metal roofing material if it is non -reflective and of a color that blends with the surrounding vegetation and landscape. The Hearings Officer finds that if the applicant's proposal is approved on appea|, such approval should be subject to a condition of approval requiring that if the proposed dwellings have metal roofs, those roofs are non -reflective and of a color that blends with the surrounding vegetation and Iandscape. b. Orientation and Style of Proposed Townhomes. Opponents argue the abing, ohentation, and style of the proposed townhomes will not be harmonious with existing development surrounding "Common 18." Opponents note, and the Hearings Officer's site visit observations confirm, that "Common 18" is located at a higher elevation than land to the northeast across Elkai Woods Drive. They argue that placement of two-story townhomes on the subject site will make the new townhomes appear much Iarger as viewed from the homes across the road. Opponents also object to the proposed configuration of Lots 3, 4 and 5 because it would orient the townhomes on those lots so their long side elevations and decks would face the dwellings across the street — an anomalous orientation in the immediate neighborhood. The Hearings Officer understands opponents' concerns. However, | find the difference in elevation along Elkai Woods [}rive is not unique in Widgi Creek. Similarly, | find there are other locations in Widgi Creek where due to road and lot |oyouto, dwellings are oriented so that their side elevations face onto the road. Opponents also object to the proposed orientation of Lots 6, 7 and 8 which would have access from the proposed private road that would dead-end at the northern boundary of "Common 21" in Elkai Woods Townhomes Phase V, and as a result the garages and driveways for those three lots would be located close to the back yards of the existing townhomes in Elkai Woods Townhomes Phase V that back onto "Common 21." Based on the Hearings Officer's site visit observations and my review of the aerial photos and plats of the Widgi Creek deve|upnnent, it appears the proposed configuration of the private road and Lots 6, 7 and 8 is unique in that respect. | find placement of garages and driveways in such close proximity to both Common 21 and the back yards of existing townhomes will not relate harmoniously to this existing development. c. Private Road. The applicant proposes to serve four of the subdivision lots — Lots 2, 6, 7 and 8 — with a private road. The submitted tentative plan shows this road would come off Seventh Mountain Drive at a point between proposed Lots 2 and 3, would run east for approximately 120 feet, would make a 90 -degree turn to the right (south), and would dead-end adjacent to "Common 21" and the rear yards of some townhomes in Elkai Woods Townhomes Phase V. At the public hearing, the property owner testified he included this private road in the proposed subdivision because he could not obtain permission from the Elkai Woods HOAs to provide direct access to townhomes from Elkai Woods Drive. Subsequently, in response to concerns expressed by the Hearings Officer about the ability of fire trucks and other emergency vehicles to turn around at the end of the proposed private road, the applicant submitted a revised tentative plan drawing showing a "T" -shaped turnaround at the end of the private road. As discussed in the findings below under Title 17, in its comments on the applicant's proposal, the fire department stated the proposed private road configuration is acceptable to the fire department because fire trucks can reach the proposed dwellings on the private road from Elkai Woods Drive on which the fire department has permission to travel. While this configuration may be acceptable from a firefighting standpoint, the Hearings Officer finds it does not relate harmoniously to existing development by bringing a road, driveways and garages so close to "Common 21" and the back yards of nearby townhomes. d. Removal of Amenities. Opponents argue the proposed subdivision would not be harmonious with existing residential development because it would remove the community amenities on "Common 18" that were designed and intended to serve Widgi Creek residents. Opponents submitted extensive evidence describing the history of these amenities and their use by Widgi Creek residents, as well as prior agreements between residents and the property own concerning operation and maintenance of these amenities, and ultimately unsuccessful negotiations to keep the pool facility operational. Opponents argue that for Widgi Creek truly to be considered a "resort community" it must have resort amenities in addition to the golf course. The Hearings Officer agrees with opponents that in light of Widgi Creek residents' historic and long-standing use of the "Common 18" community amenities, their removal and replacement with dwellings would not be harmonious with existing development. For the foregoing reasons, the Hearings Officer finds the applicant's proposal will relate harmoniously to the natural environment, preserving topographic features to the extent practicable considering development constraints. However, I find the applicant's proposal will not relate harmoniously to existing development, and therefore I find the proposal does not satisfy this criterion. B. The landscape and existing topography shall be preserved to the greatest extent possible, considering development constraints and suitability of the landscape and topography. Preserved trees and shrubs shall be protected. FINDINGS: As discussed above, the proposed subdivision site currently is developed with a swimming pool, community building, parking areas and landscaping. The applicant's burden of proof states relatively little grading will be required for construction of the proposed dwellings. Based on the Hearings Officer's site visit observations and review of the submitted elevation drawings, I agree with the applicant that minimal grading will be required on the proposed subdivision site. I find that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to preserve and protect all trees and shrubs not required to be removed for construction. C. The site plan shall be designed to provide a safe environment, while offering appropriate opportunities for privacy and transition from public to private spaces. FINDINGS: The applicant's burden of proof states with respect to this criterion: "The site plan is designed to provide a safe environment for vehicular movemen pedestrians and bicycles. The roadways within the Widgi Creek det are sized and deigdhJaCCOOnm0Oate8h8yedVGhicle, bicycle and pedestrian use. Given the /ON/ volume of traffic expected, Seventh Mountain Drive is fully adequate to accommodate the traffic and the ample off street parking ensures safe desiand function of the subdivision with golfers and pedestrians." Opponents argue the applicant's proposal will not provide a safe environment because they believe Seventh Mountain Drive does not have sufficient width to handle the additional traffic that would be generated by the eight new dwellings in addition to existing vehic|a, bicycle and pedestrian traffic. The Hearings Officer understands the golf cart paths generally are not available for bicycle or pedestrian troffic, particularly during the six- to seven-month golf season. As discussed in the findings be|ovv, the applicant's traffic analyses indicate traffic on Seventh Mountain Road southeast of Golf Village Loop is half the traffic northwest of Golf Village Loop (1,500 ADTs vs. 740 AOTa, renpe(tive|y), with roughly half of the Seventh Mountain traffic turning at Golf Village Loop. Based on the applicant's traffic analyses, | have found Seventh Mountain Drive has the capacity to handle vehicular traffic generated by the proposed subdivision in combination with existing traffic. Because the two proposed subdivisions will add only 98 ADTs and only 9 p.m. peak hour trips to the Seventh Mountain Drive traffic, | find they will have minimal impact on the volume of traffic on the road and on shared use of the road. Therefore, | find the applicant's proposal satisfies this criterion. D. When appropriate, the site plan shall provide for the special needs of disabled persons, such as ramps for wheelchairs and Braille signs. FINDINGS: The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to comply with all requirements of the Americans with Disabilities Act (ADA) identified by the county during the building plan review and permitting process for the dwellings. E. The location and number of points of access to the site, interior circulation patterns, separations between pedestrians and moving and parked vehicles, and the arrangement of parking areas in relation to buildings and structures shall be harmonious with proposed and neighboring buildings and structures. FINDINGS: The Applicant proposes access to the dwellings from Cascade Lakes Highway via Seventh Mountain Drive, an existing private road, and a new private road off Seventh Mountain Drive. The applicant proposes off-street parking within the attached garages and on the driveways. As discussed in the findings obove, opponents have raised concerns about the safety of pedestrians and bicyclists on Widgi Creek roads in genera|, and on Seventh Mountain Drive in particu|or, with the addition of traffic from the applicant's two proposed new subdivisions. The Hearings Officer has found the golf cart paths cannot provide a safe and reliable pathway for pedestrians and bicyclists during the golf season. Nevertheless, | have found that because the proposed subdivisions will generate such minimal additional inaffic, they will have minimal impact on traffic volumes on Widgi Creek roads. Therefore, | find the applicant's proposal satisfies this criterion. F. Surface drainage systems shall be designed to prevent adverse impacts on neighboring pnmperties, streets, or surface and subsurface water quality. FINDINGS: The Applicant's burden of proof states all surface water drainage will be contained on site through a system of drainage svva|as, retention/infiltration basins, and/or culverts. The Hearings Officer finds that if the applicant's proposal is approved on appea|, such approval should be subject to a condition of approval requiring the applicant to install all surface drainage systems in conformance with the applicable Department of Environmental Quality (DEQ) design standards for such Systems, and to provide to the Planning Division prior to final plat approval certification by a licensed professional engineer that drainage facilities have been designed and constructed in accordance with the current Central Oregon Stormwater Manual6 to receive and/or transport stormwater from at least the design storm (as defined in the current Central Oregon Stormwater Manual) for all surface drainage water including stormwater coming to and/or passing through the development. G. Areas, structures and facilities for storage, machinery and equipment, services (mail, refuse, utility wires, and the like), loading and parking and similar accessory areas and structures shall be designed, located and buffered or screened to minimize adverse impacts on the site and neighboring properties. FINDINGS: The Hearings Officer finds all features described in this paragraph can be located within the garages and enclosed storage closets for each proposed dvvgUing, thereby satisfying this criterion. H. All above -ground utility installations shall be located to minimize adverse visual impacts on the site and neighboring properties. FINDINGS: The applicant's burden of proof states the applicant proposes to install all utilities underground with the exception of "standard above -ground power transformers and standard franchise utility pedestals and facilities." The submitted site plan does not identify the location of these proposed above -ground facilities or illustrate what they would look like or how they would be screened. Therefore, the Hearings Officer finds that if the applicant's proposal is approved on appea|, such approval should be subject to a condition of approval requiring the applicant to submit a revised site plan showing the location and design of any above -ground utility facilities and how they will be screened with vegetation or otherwise so that adverse visual impacts on the site and neighboring properties are minimized. 6 The staff report states the manual can be found at the following website: www.lcog.org/dooumentn/sub_eoton/Centna|{}R_8bormwatedNanuai_2010O8.pdf I. Specific criteria are outlined for each zone and shall be a required part of the site plan (e.g. lot setbacks, etc.). FINDINGS: Compliance with the standards in the RC and LM Zones is addressed in the findings above. J. All exterior lighting shall be shielded so that direct light does not project off-site. FINDINGS: The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to install all exterior lighting in compliance with the outdoor lighting ordinance in Chapter 15.10 of the Deschutes County Code, and to install all fixtures so that they are shielded and downcast to prevent direct light from projecting off-site. K. Transportation access to the site shall be adequate for the use. Where applicable, issues including, but not limited to, sight distance, turn and acceleration/deceleration lanes, right-of-way, roadway surfacing and widening, and bicycle and pedestrian connections, shall be identified. 2. Mitigation for transportation -related impacts shall be required. 3. Mitigation shall meet applicable County standards in DCC 17.16 and DCC 17.48, applicable Oregon Department of Transportation (ODOT) mobility and access standards, and applicable American Association of State Highway and Transportation Officials (AASHTO) standards. FINDINGS: The applicant submitted as Exhibit "H" to its burden of proof a "Trip Generation Letter" dated October 15, 2014 and prepared by Ferguson & Associates and addressing both the Pool and Fairway applications. This letter concluded that since the predicted trip generation for the proposed subdivisions would be less than 20 p.m. peak hour trips (4:00 p.m. to 6:00 p.m. weekdays), no further traffic analysis is required by the county code. In his December 10, 2014 comments on the applicant's proposal, the county's Senior Transportation Planner Peter Russell stated the applicant's trip generation letter was not adequate for the following reasons: "The most recent edition of the Institute of Traffic Engineers (ITE) Trip Generation Handbook indicates a Condo/Townhome (Land Use 230) generates 5.81 weekday trips per unit and 0.52 p.m. peak hour trips per unit. The proposed nine -lot subdivision would generate 52.29 daily trips (9 X 5.81). Deschutes County Code (DCC) at 18.16.310(C)(3)(a) states a site traffic report is required for a use that will generate more than 50 daily trip ends. The applicant's traffic engineer has misread the County's requirements for a Site Traffic Report. DCC 18.16.310(C)(3)(b) sets two thresholds for analysis. The first is the use will "...cause the site to generate 50-200 daily trip ends..." The 9 -unit subdivision meefs this test. The second portion of DCC 16i1ti3/D([)(3)AMstates ".'mndless than 20 peak hour trips..." The proposed use will generate 468 p.m. peak hour trips, which is less than 20. The applicant's traffic engineer has made the understandable mistake that 20 p.m. peak hour trips is the floor for a Site Traffic Report whereas it's actually the ceiling. This can be seen by comparithe language at DCC 18.10.310(C)()k) which sets the thresholds for a Traffic Impact Study (77A)@t"more than 200trip ends and 200rmore peak hour bto8." The applicant's traffic analysis as submitted does not meet the requirements set by DCC 18.116.310(C)(3) nor contain the required elements for an STR set forth 8tDCC Y/l//0.J/08}through fl." In response to Mr. Russell's comments, the applicant submitted additional traffic analyses as attachments PH -9 and PH -10 to its January 20, 2015 submission. PH -10 is an e-mail message dated January 6, 2015 from Ferguson & Associates including a "preliminary analysis" of traffic on Seventh Mountain Drive generated by the 107 single-family dwellings and 86 townhome dwellings existing in Widgi Creek. This analysis concluded these dwellings generate 1.518 ADTs on Seventh Mountain Drive northwest of Golf Village Loop, of which 152 are p.m. peak hour trips, and 738 ADTs on Seventh Mountain Drive southeast of Golf Village Loop, of which 70 are p.m. peak hour trips. The analysis concluded this traffic "is within the range of what can be expected in a residential subdivision, which is typically up to 1'500 vehicles per day, but has been noted to exceed 3,000 vehicles per day in some circumstances." PH -9 is a "site traffic report" dated January 12, 2015, and prepared by Ferguson & Associates. This report predicted the nine dwellings in the Fairway proposal would generate 52 average daily vehicle trips (ADTs) of which 5 would occur during the p.m. peak hour. The traffic report analyzed the impact of traffic from the Pool proposal as "in process development" and predicted it would generate 46 ADTs of which 4 would occur during the p.m. peak hour. Thergfore, the total predicted traffic from the two subdivisions would be 98 ADTs of which 9 trips would be during the p.m. peak hour. The traffic analysis concluded the two Seventh Mountain Drive intersections that would be affected by this additional traffic — Cascade Lakes Highway and Golf Village Loop — would continue to function at acceptable levels of service. The analysis also concluded site and stopping distances at both intersections are adequate. Based on the applicant's January 2015 traffic analyses, the Hearings Officer finds the addition of traffic predicted to be generated by the applicant's proposed eight -lot subdivision will not exceed the capacity of affected transportation facilities, and therefore no mitigation is required. c. Section 18.124.070, Required Minimum Standards A. Private or shared outdoor recreation areas in residential developments. 1. Private Areas. Each ground -level living unit in a residential development subject to site plan approval shall have an accessible outdoor private space of not less than 48 square feet in area. The area shall be enclosed, screened or otherwise designed to provide privacy for unit residents and their guests. FINDINGS: The applicant's burden of proof states the proposed dwellings will have ground -level spaces with accessible private outdoor patios and yards in excess of 48 square feet in size. The Hearings Officer finds that if the applicant's proposal is approved on oppeo|, such approval should be subject to a condition of approval requiring the applicant to provide these private areas for each dwelling. 2. Shared Areas. Usable outdoor recreation space shall be provided for the shared use of residents and their guests in any apartment residential development, as follows: a. Units with one or two bedrooms: 200 square feet per unit. b. Units with three or more bedrooms: 300 square feet per unit. FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant does not propose any apartment residential development. 3. Storage. In residential developments, convenient areas shall be provided for the storage of articles such as bicycles, barbecues, luggage, outdoor furniture, etc. These areas shall be entirely enclosed. FINDINGS: The applicant's burden of proof states each dwelling (all over 3,000 square feet in size) will have adequate storage within the dwelling and two -car garage to accommodate the listed items. The Hearings Officer finds the applicant's proposal satisfies this criterion. B. Required Landscaped Areas 1. The following landscape requirements are established for multi -family, commercial and industrial developments, subject to site plan approval: a. A minimum of 15 percent of the lot area shall be landscaped. b. All areas subject to the final site plan and not otherwise improved shall be landscaped. FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant's proposal is for single-family dwellings and not a multi -family, commercial or industrial development. 2. In addition to the requirement of DCC 18.124.070(B)(1)(a), the following landscape requirements shall apply to parking and loading areas: a. A parking or loading area shall be required to be improved with defined landscaped areas totaling no less than 25 square feet per parking space. b. In addition to the landscaping required by DCC 18.124.070(B)(2)(a), a parking or loading area shall be separated from any lot line adjacent to a roadway by a landscaped strip at least 10 feet in width, and from any other lot line by a landscaped strip at least five feet in width. c. A landscaped strip separating a parking or loading area from a street shall contain: 1) Trees spaced as appropriate to the species, not to exceed 35 feet apart on the average. 2) Low shrubs not to reach a height greater than three feet zero inches, spaced no more than eight feet apart on the average. 3) Vegetative ground cover. d. Landscaping in a parking or loading area shall be located in defined landscaped areas which are uniformly distributed throughout the parking or loading area. e. The landscaping in a parking area shall have a width of not less than five feet. f. Provision shall be made for watering planting areas where such care is required. g. Required landscaping shall be continuously maintained and kept alive and attractive. h. Maximum height of tree species shall be considered when planting under overhead utility lines. FINDINGS: In previous decisions, the Hearings Officer has held that unlike the requirements of Paragraph (B)(1) of this section that apply only to multi -family and commercial uses, the requirements in Paragraph (B)(2) of this section apply to all uses. However, the staff report questions whether the standards in Paragraph (B)(2) should apply where, as here, the required "parking area" consists of two off-street parking spaces within an enclosed garage. I find that for this reason the standards in Paragraph (B)(2) do not apply to required off-street parking spaces for single-family dwellings. C. Nonmotorized Access. Bicycle Parking. The development shall provide the number and type of bicycle parking facilities as required in DCC 18.116.031 and 18.116.035. The location and design of bicycle parking facilities shall be indicated on the site plan. FINDINGS: Compliance with bicycle parking requirements is discussed in the findings above. The Hearings Officer has found that because only two off-street parking spaces are required for each proposed dwelling no bicycle parking is required. 2. Pedestrian Access and Circulation a. Internal pedestrian circulation shall be provide in new commercial, office and multi -family residential developments through the clustering of buildings, construction of hard surface pedestrian walkways, and similar techniques. b. Pedestrian walkways shall connect building entrances to one another and from building entrances to public streets and existing or planned transit facilities. On site walkways shall connect with walkways, sidewalks, bikeways, and other pedestrian or bicycle connections on adjacent properties planned or used for commercial, multi family, public or park use. c. Walkways shall be at least five feet in paved unobstructed width. Walkways which border parking spaces shall be at least seven feet wide unless concrete bumpers or curbing and landscaping or other similar improvements are provided which prevent parked vehicles from obstructing the walkway. Walkways shall be as direct as possible. d. Driveway crossings by walkways shall be minimized. Where the walkway system crosses driveways, parking areas and loading areas, the walkway must be clearly identifiable through the use of elevation changes, speed bumps, a different paving material or other similar method. e. To comply with the Americans with Disabilities Act, the primary building entrance and any walkway that connects a transit stop to building entrances shall have a maximum slope of five percent. Walkways up to eight percent slope are permitted, but are treated as ramps with special standards for railings and landings. FINDINGS: The applicant's burden of proof states these criteria do not apply because the applicant does not propose new office, commercial or multi -family residential developments. The staff report states staff previously has interpreted this section to require compliance with Paragraph (a) only for multi -family residential developments, but to require compliance with Paragraphs (b) through (e) for all developments subject to site plan review. The Hearings Officer finds the wording of this subsection is somewhat ambiguous. Nevertheless, I find that reading the subsection as a whole strongly suggests that it was not intended to apply to individual dwellings requiring site plan approval. For example, Paragraph (b) addresses connections between multi- family dwelling buildings. Paragraphs (b) and (e) address multiple building entrances. And Paragraph (d) discusses speed bumps and other features typically found in commercial or multi- family parking and maneuvering areas. For these reasons, I find this subsection does not apply to the applicant's proposal. For the foregoing reasons, the Hearings Officer finds the applicant's proposal does not satisfy all applicable site plan approval criteria. SUBDIVISION STANDARDS C. Title 17 of the Deschutes County Code, the Subdivision/Partition Ordinance 1. Chapter 17.20, Zero Lot Line Subdivision a. Section 17.20.010, Requirements In addition to the general provisions for subdivision and partitioning set forth in DCC Title 17, any application for a zero lot line subdivision or partition shall meet the following requirements: A. The tentative plan shall indicate all lot divisions, including those along the common wall of duplex units. FINDINGS: The applicant proposes an eight -lot, zero -lot -line subdivision. The submitted tentative plan shows all lot divisions for the proposed development. The record indicates there are no duplexes with common walls. B. Independent utility service shall be provided to each unit, including, but not limited to, water, electricity and natural gas, unless common utilities are approved by the affected utility agency and are adequately covered by easements. FINDINGS: The applicant proposes to provide independent utility service including sewer, water, electricity, cable, and phone service to each lot. The Hearings Officer is aware electricity, cable, and telephone infrastructure already exists in Widgi Creek and in the Elkai Woods neighborhood in which the proposed dwellings would be sited. I find that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to install these utility service facilities for each dwelling. C. Prior to the granting of final approval for creation of a zero lot line subdivision or partition, the Planning Director shall require the applicant(s) to enter into a written agreement in a form approved by the County Legal Counsel that establishes the rights, responsibilities and liabilities of the parties with respect to maintenance and use of any common areas of the unit, such as, but not limited to, common walls, roofing, water pipes and electrical wiring. Such agreement shall be in a form suitable for recording, and shall be binding upon the heirs, executors, administrators and assigns of the parties. FINDINGS: The applicant's burden of proof states the proposed Covenants, Conditions and Restrictions (CC&Rs) for the proposed eight -lot subdivision will be similar to the CC&Rs approved for the Elkai Woods Townhomes development and will be refined as necessary prior to final plat approval. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring that prior to final plat approval the applicant must submit draft CC&Rs for the proposed subdivision to the Deschutes County Legal Counsel for its review and approval, and record the CC&Rs with the Deschutes County Clerk following legal counsel's approval. Opponents questioned whether and how any new HOA formed for the proposed new subdivision will coordinate with the three existing HOAs. The Hearings Officer finds that given the adverse positions of the applicant and the HOAs in this and the Fairway application, it is unlikely any of the HOAs would be interested in assuming responsibility for the proposed new subdivision. Nevertheless, I find that potential conflicts among the HOAs are not a reason to deny the applicant's proposal. D. Each zero lot line subdivision or partition proposal shall receive site plan approval prior to submission of the final plat. Site plan approval shall be granted only upon a finding that the design, materials and colors proposed for each dwelling are harmonious and do not detract from the general appearance of the neighborhood. FINDINGS: The applicant has applied for site plan approval. However, as discussed in the findings above, the Hearings Officer has found the applicant's proposal does not satisfy all applicable site plan approval criteria. The submitted burden of proof does include elevation drawings for the proposed dwellings, showing the townhomes are designed to resemble single-family dwellings. The applicant has stated exterior building materials will include natural stone and wood timbers, and exterior colors will be muted earth tones to blend with the natural environment and the structures within the Widgi Creek resort. Opponents argue the proposed metal roofs are incompatible with nearby residential development. However, as discussed in the site plan findings above, the Hearings Officer has found Section 18.84.080(A) specifically allows metal roofing material if it is non - reflective and of a color that blends with the surrounding vegetation and landscape. 2. Chapter 17.16, Approval of Subdivision Tentative Plans and Master Development Plans a. Section 17.16.100, Required Findings for Approval A tentative plan for a proposed subdivision shall not be approved unless the Planning Director or Hearings Body finds that the subdivision as proposed or modified will meet the requirements of DCC Title 17 and DCC Title 18 through 21, and is in compliance with the comprehensive plan. Such findings shall include, but not be limited to, the following: A. The subdivision contributes to orderly development and land use patterns in the area, and provides for the preservation of natural features and resources such as streams, lakes, natural vegetation, special terrain features, agricultural and forest lands and other natural resources. FINDINGS: 1. Orderly Development. The Hearings Officer finds that for purposes of this approval criterion, "orderly development" is development that is served by adequate public facilities and services and utilities. The applicant proposes to develop an gight-|ct, zero -lot -line subdivision that will have access from Cascade Lakes Highway via Seventh Mountain Drive, a private road improved to the county's private road otondardn, and a new private road off Seventh Mountain Drive. The proposed dwellings will receive water from the SMGV Water Co. water oyatenn, will be served by the City of Bend sewer system, and will have utility services through extension of existing utility facilities serving the adjacent developments. Therefore, | find the proposed subdivision will contribute to orderly development in the area. 2. Land Use Patterns. The existing land use pattern in the larger area surrounding the subject property consists of resort and residential development within the |nn/VVidgi Creek. The staff report atatos, and the based on the Hearings Officer's site visit observations | ognee, that existing residential development reflects a variety of dwelling styles and deneidea, and surrounding development includes private roads, resort amenities such as the clubhouse, tennis courts and poo|, and the Widgi Creek Golf Course. | find the proposed townhomes will be of comparable size to many of the detached single-family dwellings in Widgi Creek and will be similar to the existing townhome developments in Elkai Woods. Opponents argue the proposed subdivision will conflict with the existing land use pattern in the immediate vicinity by orienting some townhomes so that their long side elevations face other tovvnhornes, by orienting the lots and townhomes on the proposed private road so that their garages and driveways are in close proximity to "Common 21" and the rear yards of adjacent tovvnhonnea, and by removing the existing community amenities from "Common 1D." As discussed in the site plan findings above, the Hearings Officer has found the configuration of the proposed private road and the orientation of the lots thereon, as well as removal of the existing community amenities, render the proposed subdivision inharmonious with existing development. For those same reasons, | find the proposed subdivision also does not contribute to the existing land use pattern, but rather conflicts with it. 3. Preservation of Natural Features and Resources. The record indicates the proposed subdivision site does not have any streams or special terrain features. The Widgi Creek development has man-made lakes and other features, native vegetation including scattered pine trees and native brush and gnsaoea, as well as introduced landscaping such as golf course tees, fairways and greens. The proposed subdivision site is located within the LM Zone associated with Cascade Lakes Highway and the Deschutes River. The Hearings Officer has found that if the applicant's proposal is approved on appeo|, such approval should be subject to a condition of approval requiring the applicant to preserve and protect existing vegetation not required to be removed for construction. | find that with imposition of this condition of approval the Applicant's proposal will preserve natural features and resources. For the foregoing reasons, the Hearings Officer finds the applicant's proposal does not satisfy this criterion. B. The subdivision will not create excessive demand on public facilities and services, and utilities required to serve the development. FINDINGS: Public facilities and services affected by the proposed subdivision include domestic vvater, aavver, roada, storm dnainagg, police and fire proiection, and schools. Each of these facilities and services is addressed in the findings below. 1. Domestic Water. The applicant's burden of proof states the proposed subdivision will be served by the existing Widgi Creek Water System which is a shared system owned by SMGV Water Company and Bhe|nn, LLC. The well permit for this water system is included as Exhibit G to the applicant's burden of proof. The burden of proof states the water system is supplied by ground wells permitted through the OWRD with water quality and distribution regulated under Oregon's Drinking Water Quality Act, administered by the Drinking Water Services (DWS) division of the Oregon Health Authority. The applicant states the well permit is for a total of 107 single family dwellings, 103 condominiums, and 130.9 acres of irrigation, commercial uses and ponds. The applicant states that because currently there are 107 single family residential lots and 86 townhomes platted at Widgi C}naeh, there remain 17 "condominium" units on the current well permit. The proposed subdivision would add nine residential units. The staif report questions whether the proposed townhome units, at over 3,000 square feet in size, reasonably can be considered "condominium" units for purposes of the well permit. The Hearings Officer assumes staff's concern relates to the amount of water usage predicted for different types of dwellings. In addiUnn, opponents testified about occasional drops in water pressure in Widgi Creek. | understand staffs and opponents' concerns about water oopacity, particularly in light of the board's intent, discussed in the comprehensive plan findings obove, that future residential development in Widgi Creek be limited by water and sewer capacity. For this reason, | find that if the applicant's proposal is approved on appeo|, such approval should be subject to a condition of approval requiring the applicant to provide to the Planning Division written documentation from the SMGV Water Company that there is sufficient capacity in the water system and well permit to serve the eight dwellings proposed in this application and the nine dwellings proposed in the applicant's Fairway application. 2. Sewer. The applicant's burden of proof states the proposed subdivision would be served by an extension of and connection to City of Bend sewer facilities pursuant to the existing sewer service agreements between the city and SMGA Partnership (1992) and Widgi Creek, included in Exhibit "C" to the applicant's burden of proof. The applicant proposes that sewer service lines be extended to each lot in accordance with the city's standards and specification. Included as Exhibit ^F" to the applicant's burden of proof is a "Sewer Analysis K8erno" dated July 14, 2014 and prepared by the city's Engineering Division. The memo states the following with respect to the applicant's Fairway application: Pool Site — There is an existing 8 -inch gravity main located on the western boundary of the proposed development site within Seventh Mountain Drive. There is a proposed sewer mainline within the development site. It is assumed for the sake of analysis that flows generated bxthis development shall be directed to said pipe. A peak summer day average flow rate of 1.53 GPM [gallons per minute] was assumed for the sake of modehing the development of 8 single family lots (8 EDUs [equivalent dwelling units] @ (l10 GMP/DU) as provide the � "(BO@DdUOdedemphasis original.) The memo stated the city did not identify any areas of concern in its onokmis, but that the applicant would be required to upgrade the city's existing lift station on the Widgi Creek Golf Course prior to final plat approval. The memo also stated the applicant would be required to submit a new sewer analysis application when "the final locations of the 38 lots" for which the applicant requested sewer service in Widgi Creek are de0errnin8d.r The Hearings Officer finds the city's sewer analysis memo indicates there is sufficient sewer system capacity to serve the nine proposed lots. | find that if the applicant's proposal is approved on appea|, such approval should be subject to a condition of approval requiring that before final plat approval the applicant submit a new sewer analysis memo from the city documenting that sewer capacity is still avoi|ab|e, and written documentation from the city that all required upgrades to the aforementioned Iift station have been completed.8 Opponent HOAs argue extension of city sewer service to the proposed subdivision requires an exception to Goal 11, Public Facilities and Sgrvicea, because they claim the original extension of sewer to the Inn/Widgi was not under an approved Goal 11. They are mistaken. The record includes a copy of Ordinance No. 90-039 through which the county took a "reasons" exception to Goal 11 to allow the extension of city sewer facilities to Seventh Mountain Golf Village and the Inn of the Seventh Mountain. The ordinance also adopted an amendment to the comprehensive plan adding the foliowing paragraph: The County shall not allow anv further connection to the sewer line extended to the Inn of the Seventh Mountain destination resort outside of the City of Bend's acknowledged urban growth boundary. (Emphasis added.) The HOAs apparently believe the above -underscored language precludes serving the applicant's proposed subdivision with city sewer. The Hearings Officer disagrees. The findings in support of the exception include the following: "BASIC FINDINGS: * * * 9. The interest in the sewer line extension arises from The Inn's plans for a 237 -acre expansion, which was authorized pursuant to casehes M-83-1 and [|[-83-107, and which was Iast modified in file MC -88-1. The project is scheduled for completion by December 31, 1901. * * * r Opponents expressed concern about the applicant's reservation of sewer capacity for 38 additional dwellings in Widgi Creek and questioned where all of those dwellings would be located. The Hearings Officer finds | need not address that issue because the only applications before me are the Fairway and P001 applications that together propose 17 dwelling units. 8 The July 2014 sewer memo states its analysis is vaiid for six months, and therefore it would have expired in January of 2015. The applicant submitted into the record as an attachment to its January 20, 2015 submission, an electronic mail message dated January 13, 2015 from the city's engineer stating the sewer capacity reserved for Widgi Creek continues to be reserved from the date of the applicant's land use application. CONCLUSIONARY FINDINGS: 2. ° ° °[T]heuaeof1heoewerlinewil/belinitpdtn7he Inn of the Seventh Mountain, an existing resort whose expansion has been reviewed and approved in conformance with all Iocal land use regulations. Therefore, the expansion of this key facility to the resort is consistent with the capabilities of the land and planned growth of the community. 3. The purpose of the amendment is to allow a specific user, The Inn of the Seventh Mountain, to connect to the City of Bend's sewerage system. * * ° 4. The proposed amendment would allow The Inn to replace or substitute the current on-site sewage disposal system with the City's sewage system. ° ° ° The amendment would not result in the establishment of any new use, it would only alter the method of sewage disposal and the provider ofthat service. For these reasons, the requirements OfOAR 060- 04-020i8(c)7r88SOOS" exception] are satisfied." (Bold and underscored emphasis in original.) The Hearings Officer finds it is clear from these findings that the county took an exception to Goal 11 to extend city sewer service to what is now Widgi Creek — i.e., the approved 237 -acre expansion to the original Inn of the Seventh Mountain -- and therefore the plan language prohibiting "any further connection" to the sewer line extended to the |nn/VVidgi applies to any uses other than the Inn/Widgi resort. 3. Storm Drainage. The applicant's burden of proof states all surface water drainage will be contained on site through a system of a system of drainage avva|eo, retention/infiltration baaina, and/or culverts. As discussed in the findings above, the Hearings Officer has found that if the applicant's proposal is approved on oppea|, such approval should be subject to a condition of approval requiring the applicant to install all surface drainage systems in conformance with the applicable DEQ design standards for such eyaienna, and to provide to the Planning Division before final plat approval certification by a licensed professional engineer that drainage facilities have been designed and constructed in accordance with the current Central Oregon Stormwater Manual. 4. Roads. The applicant proposes access to the new subdivision dwellings from Cascade Lakes Highway via the existing Seventh Mountain Drive and a new private road off Seventh Mountain Drive. As discussed in the findings abova, incorporated by reference herein, the Hearings Officer has found that based on the applicant's January, 2015 traffic analyses, traffic predicted to be generated by the proposed eight new dwellings will not exceed the capacity of Seventh Mountain Drive or its intersections with Golf Village Loop and Cascade Lakes Highway. 5. Police Protection. Widgi Creek is served by the Deschutes County Sheriff who did not comment on the applicant's proposal. 6. Fire Protection. In his December 26, 2014 comments on the applicant's proposal, Bend Fire Marshal Larry Medina identified a number of applicable standards in the Oregon Fire Code applicable to the proposed new aubdiviaion, including requirements for fire apparatus access roada, fire protection water oupp|iea, and visible address numbers. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to assure the subdivision complies with all requirements identified by the fire department, and to submit to the Planning Division prior to final plat approval written documentation from the fire department that all such requirements have been met. 7. Schools. The Hearings Officer finds Widgi Creek is located within the boundaries of the Bend-LaPine School District. The district did not submit comments on the applicant's proposal. However, I am aware the district responds in a variety of ways to accommodate additional students who may move into new developments. In particular, the school district typically requests that roads within the development have sidewalks to accommodate student pedestrians, and that the developer be required to provide the school district with a perpetual easement to allow school district vehicles to travel across private roads. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring that the applicant record a perpetual easement allowing Bend- LaPine School District vehicles to travel across Seventh Mountain Drive. 8. Utilities. The Hearings Officer finds utilities including electric, cable and telephone service are available to the proposed subdivision because they currently are provided to existing development within Widgi Creek. For the foregoing reasons, and with imposition of the recommended conditions of approval, the Hearings Officer finds the applicant's proposal will not create excessive demand on public facilities and services and utilities. C. The tentative plan for the proposed subdivision meets the requirements of ORS 92.090. FINDINGS: ORS 92.090(1) states a new subdivision can only use the same name if it is a continuation of an existing subdivision, with a sequential numbering system, and must either be platted by the same party or have the consent of the previous party. The applicant is requesting approval of an eight -lot, zero -lot -line subdivision that would be a partial replat of Elkai Woods Townhomes Phase III. Subsection (2) of this statute requires that roads be laid out to conform with existing plats on adjoining property, that streets and roads held for private use are clearly indicated on the tentative plan, and that all reservations or restrictions relating to such private roads and streets are set forth on the plat. There are adjoining platted residential lots surrounding the proposed subdivision site. However, the Hearings Officer finds the applicant need not conform the proposed subdivision to the adjacent platted lots because those lots have direct access from Seventh Mountain Drive or Elkai Woods Drive. As discussed above, the proposed subdivision lots would take access from Seventh Mountain Drive, an existing private road within Widgi Creek, and a new private road off Seventh Mountain Drive. I find that if this subdivision is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to show on the final plat the private road status of Seventh Mountain Drive and any public easements. The Hearings Officer finds Subsections (3), (4) and (5) of the statute relate to final platting and therefore are not applicable to the applicant's proposal for tentative plan approval. D. For subdivision or portions thereof proposed within a Surface Mining Impact Area (SMIA) zone under DCC Title 18, the subdivision creates lots on which noise or dust sensitive uses can be sited consistent with the requirements of DCC 18.56, as amended, as demonstrated by the site plan and accompanying information required under DCC 17.16.030. FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject property is not within a SMIA Zone. E. The subdivision name has been approved by the County Surveyor. FINDINGS: The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to obtain approval of the subdivision name from the Deschutes County Surveyor. c. Section 17.16.105, Access to Subdivisions No proposed subdivision shall be approved unless it would be accessed by roads constructed to County standards and by roads accepted for maintenance responsibility by a unit of local or state government. This standard is met if the subdivision would have direct access to an improved collector or arterial, or in cases where the subdivision has no direct access to such a collector or arterial, by demonstrating that the road accessing the subdivision from a collector or arterial meets relevant County standards and has been accepted for maintenance purposes. FINDINGS: The proposed subdivision would have frontage on Seventh Mountain Drive, a private road platted as part of the Seventh Mountain Golf Village Subdivision, Tract A, which connects to Cascade Lakes Highway, an ODOT-maintained arterial road. In addition, four of the proposed eight subdivision lots would have access from a new private road connecting with Seventh Mountain Drive. In its comments on the applicant's proposal, the road department stated all private roads providing access to the proposed subdivision meet, or must meet, the county's private road standards. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to improve the new private road to the county's private road standards. 3. Chapter 17.36, Design Standards a. Section 17.36.020, Streets A. The location, width and grade of streets shall be considered in their relation to existing and planned streets, topographical conditions, public convenience and safety, and the proposed use of land to be served by the streets. The street system shall assure an adequate traffic circulation system for all modes of transportation, including pedestrians, bicycles, and automobiles with intersection angles, grades, tangents, and curves appropriate for traffic to be carried, considering the terrain. The subdivision or partition shall provide for the continuation of the principal streets existing in the adjoining subdivision or partition or of their property projection when adjoining property which is not subdivided, and such streets shall be of a width not less than the minimum requirement for streets set forth in this chapter. FINDINGS: The proposed subdivision would have frontage on and access from Cascade Lakes Highway, an ODOT-maintained arterial road, with residential lot access via the existing Seventh Mountain Drive, a private road platted as Tract A in the Seventh Mountain Golf Village Subdivision and improved in accordance with the county's standards for private roads. In addition, four of the proposed subdivision lots would have access from a new private road connecting with Seventh Mountain Drive. As discussed above, the Hearings Officer has found the location and configuration of the proposed new private road do not relate harmoniously to existing development and do not contribute to the land use pattern in the area, and therefore the proposed new road does not satisfy the relevant site plan or subdivision approval criteria. I find there are no principal streets in adjoining subdivisions that must be continued in the proposed new subdivision. I find that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to improve the new private road in accordance with the county's private road standards. B. Streets in subdivisions shall be dedicated to the public, unless located in a destination resort, planned community or planned or cluster development, where roads can be privately owned. Planned developments shall include public streets where necessary to accommodate present and future through traffic. FINDINGS: The subject property is located in a RC Zone where private roads are allowed under Section 18.110.060(J)(1). The applicant proposes a new private road to serve four of the proposed eight lots. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to improve the private road in accordance with the county's private road standards. b. Section 17.36.040, Existing Streets Whenever existing streets, adjacent to or within a tract, are of inadequate width to accommodate the increase in traffic expected from the subdivision or partition or by the County roadway network plan, additional rights of way shall be provided at the time of the land division by the applicant. During consideration of the tentative plan for the subdivision or partition, the Planning Director or Hearings Body, together with the Road Department Director, shall determine whether improvements to existing streets adjacent to or within the tract, are required. If so determined, such improvements shall be required as a condition of approval for the tentative plan. Improvements to adjacent streets shall be required where traffic on such streets will be directly affected by the proposed subdivision or partition. FINDINGS: Neither the road department nor the county's Senior Transportation Planner identified any required right-of-way or improvements to Seventh Mountain Drive, Elkai Woods Drive, or Cascade Lakes Highway to accommodate traffic generated by the proposed subdivision. Nmvertheksss, opponents expressed concern that Seventh Mountain Drive is not wide enough to accommodate additional traffic from the proposed subdivision along with existing traffic. As discussed in the findings above, based on the applicant's traffic analyses the Hearings Officer has found the proposed subdivision will add such a small amount of additional traffic to Seventh Mountain Drive that the road's capacity will not be excomded, and the intersections of Seventh Mountain Drive with Cascade Lakes Highway and Golf Village Loop will continue to function at acceptable levels of service. Therefore, | find the applicant will not be required to construct any improvements to Seventh Mountain Drive, Elkai Woods Drive, or Cascade Lakes Highway. Hovvgver, if the applicant's proposal is approved on appeal, | find such approval should be subject to a condition of approval requiring the applicant to improve the new private road in accordance with the county's private road standards. c. Section 17.36.050, Continuation of Streets Subdivision or partition streets which constitute the continuation of streets in contiguous territory shall be aligned so that their centerlines coincide. FINDINGS: The Hearings Officer finds this criterion is not applicable because the proposed new subdivision street is not a continuation of existing streets in contiguous territory. d. Section 17.36.060, Minimum Right of Way and Roadway Width The street right of way and roadway surfacing widths shall be in conformance with standards and specifications set forth in DCC 17.48. Where DCC 17.48 refers to street standards found in a zoning ordinance, the standards in the zoning ordinance shall prevail. FINDINGS: The applicant's proposal includes a new private road to serve four of the eight proposed lots. The Hearings Officer has found that if the applicant's proposal is approved on oppeo|, such approval should be subject to a condition of approval requiring the applicant to improve the new road in accordance with the county's private road standards, including a 20 - foot wide paved surface. The other four proposed subdivision lots would have frontage on and access from Seventh Mountain Drive. The record indicates Seventh Mountain Drive is improved with 20 feet of paved surface as required for private roads in Table A of Title 17. The Hearings Officer finds neither the RC nor WA Zone establishes street standards. Compliance with the private road standards in Section 17.48.180 is discussed in the findings below. e. Section 17.36.080, Future Extension of Streets When necessary to give access to or permit a satisfactory future division of adjoining land, streets shall be extended to the boundary of the subdivision or partition. FINDINGS: The Hearings Officer finds all land surrounding the proposed subdivision site is platted and developed with existing subdivision lots and dwellings. Therefore, | find it is unlikely there will be future division of adjoining land or development with other uses. | find adjoining land on each side of the proposed subdivision site has frontage on and access to either Seventh f. Section 17.36.120, Street Names Except for extensions of existing streets, no street name shall be used which will duplicate or be confused with the name of an existing street in a nearby city or in the County. Street names and numbers shall conform to the established pattern in the County and shall require approval from the County Property Address Coordinator. FINDINGS: The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to obtain county approval of the name for the new private road. g. Section 17.36.130, Sidewalks * * * C. Sidewalk requirements for areas outside of urban areas are set forth in DCC 17.48.175. In the absence of a special requirement set forth by the Road Department Director under DCC 17.48.030, sidewalks and curbs are never required in rural areas outside unincorporated communities as that term is defined in DCC Title 18. FINDINGS: The subject property is located in an unincorporated community and therefore this criterion is applicable. Compliance with the provisions of Chapter 17.48 is addressed in the findings below. h. Section 17.36.140, Bicycle, Pedestrian and Transit Requirements A. Pedestrian and Bicycle Circulation within Subdivision. 1. The tentative plan for a proposed subdivision shall provide for bicycle and pedestrian routes, facilities and improvements within the subdivision and to nearby existing or planned neighborhood activity centers, such as schools, shopping areas and parks in a manner that will: a. Minimize such interference from automobile traffic that would discourage pedestrian or cycle travel for short trips; b. Provide a direct route of travel between destinations within the subdivision and existing or planned neighborhood activity centers, and c. Otherwise meet the needs of cyclists and pedestrians, considering the destination and length of trip. FINDINGS: The staff report questions whether the provisions of this paragraph apply where, as here, Widgi Creek includes an existing shared -use road system connecting dwellings with resort amenities. Staff also questions whether residents of the proposed dwellings will have legal access to this resort -wide path system. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to submit to the Planning Division before final plat approval written documentation (such as recorded easements) showing residents of the proposed dwellings will have legal access to all paths leading to resort amenities. 2. Subdivision Layout. a. Cul-de-sacs or dead-end streets shall be allowed only where, due to topographical or environmental constraints, the size and shape of the parcel, or a lack of through -street connections in the area, a street connection is determined by the Planning Director or Hearings Body to be infeasible or inappropriate. In such instances, where applicable and feasible, there shall be a bicycle and pedestrian connection connecting the ends of cul-de-sacs to streets or neighborhood activity centers on the opposite side of the block. b. Bicycle and pedestrian connections between streets shall be provided at mid -block where the addition of a connection would reduce the walking or cycling distance to an existing or planned neighborhood activity center by 400 feet and by at least 50 percent over other available routes. c. Local roads shall align and connect with themselves across collectors and arterials. Connections to existing or planned streets and undeveloped properties shall be provided at no greater than 400 -foot intervals. d. Connections shall not be more than 400 feet long and shall be as straight as possible. FINDINGS: The Hearings Officer finds these criteria are applicable to the applicant's proposal because it includes a proposed new private road that would dead-end at the southern boundary of the proposed subdivision site. I find the proposed dead-end street is justified under Paragraph (2)(a) of this section because of the lack of through -street connections in the area. also find no bicycle and pedestrian connection at the end of the new private road is feasible because the new road would dead end at the boundary of "Common 21" and near the rear yards of several existing townhomes. 3. Facilities and Improvements. a. Bikeways may be provided by either a separate paved path or an on -street bike lane, consistent with the requirements of DCC Title 17. b. Pedestrian access may be provided by sidewalks or a separate paved path, consistent with the requirements of DCC Title 17. c. Connections shall have a 20 -foot right of way, with at least a 10 -foot usable surface. FINDINGS: Again, the staff report questions whether the existing shared -use road system in Widgi Creek will satisfy this criterion by being available to residents of the proposed dwellings. As discussed in the findings above, the Hearings Officer has found that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to provide to the Planning Division prior to final plat approval written documentation (such as recorded easements) showing residents of the proposed dwellings will have legal access to all shared -use roads leading to resort amenities. Section 17.36.150, Blocks A. General. The length, width and shape of blocks shall accommodate the need for adequate building site size, street width and direct travel routes for pedestrians and cyclists through the subdivision and to nearby neighborhood activity centers, and shall be compatible with the limitations of the topography. FINDINGS: The Hearings Officer finds this criterion is not applicable because there is no grid system with typical blocks in Widgi Creek. B. Size. Within an urban growth boundary, no block shall be longer than 1,200 feet between street centerlines. In blocks over 800 feet in length, there shall be a cross connection consistent with the provisions of DCC 17.36.140. FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject property is located outside of an urban growth boundary. J Section 17.36.160, Easements A. Utility Easements. Easements shall be provided along property lines when necessary for the placement of overhead or underground utilities, and to provide the subdivision or partition with electric power, communication facilities, street lighting, sewer lines, water lines, gas lines or drainage. Such easements shall be labeled "Public Utility Easement" on the tentative and final plat; they shall be at least 12 feet in width and centered on lot lines where possible, except utility pole guyline easements along the rear of lots or parcels adjacent to unsubdivided land may be reduced to 10 feet in width. B. Drainage. If a tract is traversed by a watercourse such as a drainageway, channel or stream, there shall be provided a stormwater easement or drainage right of way conforming substantially with the lines of the watercourse, or in such further width as will be adequate for the purpose. Streets or parkways parallel to major watercourses or drainageways may be required. FINDINGS: The applicant has proposed to show all utility easements on the final subdivision plat, and the Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to do so. The applicant proposes that the dwellings be served by City of Bend sewer facilities pursuant to a sewer service license/agreement between the applicant and the city. The record indicates there are no water courses such as a drainage way, channel or stream on the proposed subdivision site. k. Section 17.36.170, Lots -Size and Shape The size, width and orientation of lots or parcels shall be appropriate for the location of the land division and for the type of development and use contemplated, and shall be consistent with the lot or parcel size provisions of DCC Title 18 through 21. FINDINGS: The Hearings Officer finds the size, width and orientation of the proposed lots are appropriate for townhomes. However, as discussed in the findings above, I have found the proposed configuration of the new private road, and orientation of Lots 6, 7 and 8 so that their garages and driveways are in close proximity to "Common 21" and the rear yards of the adjacent townhomes, are not harmonious with existing development and do not contribute to the land use pattern in the area. For the same reasons, I find the orientation of Lots 6, 7 and 8 is not appropriate for the type of development and use contemplated. 1. Section 17.36.180, Frontage A. Each lot or parcel shall abut upon a public road, or when located in a planned development or cluster development, a private road, for at least 50 feet, except for lots or parcels fronting on the bulb of a cul-de-sac, then the minimum frontage shall be 30 feet, and except for partitions off of U.S. Forest Service or Bureau of Land Management roads. In the La Pine Neighborhood Planning Area Residential Center District, lot widths may be less than 50 feet in width, as specified in DCC 18.61, Table 2: La Pine Neighborhood Planning Area Zoning Standards. Road frontage standards in destination resorts shall be subject to review in the conceptual master plan. B. All side lot lines shall be at right angles to street lines or radial to curved streets wherever practical. FINDINGS: The applicant's burden of proof states these criteria are not applicable because Section 18.110.060(J) exempts zero -lot -line subdivisions from the lot width and frontage requirements in this section. The staff report questions whether such exemptions are applicable to requirements in Title 17. In the Hearings Officer's decision in Arrowood, cited above, I held without analysis or discussion that the zero -lot -line lots proposed in that decision were exempt from compliance with this section. I find it would not be appropriate to require compliance with the frontage standards in Title 17 while exempting the subdivision from equivalent requirements in Title 18. Therefore, I adhere to my holding in Arrowood.9 m. 17.36.190, Through Lots Lots or parcels with double frontage should be avoided except where they are essential to provide separation of residential development from major street or adjacent nonresidential activities to overcome specific disadvantages of topography and orientation. A planting screen easement of at least 10 feet in width and across which there shall be no right of access may be required along the lines of lots or parcels abutting such a traffic artery or other incompatible use. FINDINGS: The Hearings Officer finds the applicant's proposal includes three lots with double frontage — Lots 1, 2 and 3 which front on both Seventh Mountain Drive and the new private road. I find this double frontage is not essential or appropriate for the reasons set forth in the findings above concerning the configuration of the private road. However, I find that if the applicant's proposal is approved on appeal, such approval need not include a condition of approval requiring a planting screen easement to prevent access across these lots. n. 17.36.200, Corner Lots Within an urban growth boundary, corner lots or parcels shall be a minimum of five feet more in width than other lots or parcels, and also shall have sufficient extra width to meet the additional side yard requirements of the zoning district in which they are located. FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject property is not located in an urban growth boundary. o. 17.36.210, Solar Access Performance A. As much solar access as feasible shall be provided each lot or parcel in every new subdivision or partition, considering topography, development pattern and existing vegetation. The lot lines of lots or parcels, as far as feasible, shall be oriented to provide solar access at ground level at the southern building line two hours before and after the solar zenith from September 22nd to March 21st. If it is not feasible to provide solar access to the southern building line, then 9 The Hearings Officer notes former Hearings Officer Briggs also found, without discussion, that the proposed Points West zero -lot -line subdivision she approved in 2006 was exempt from the Title 17 frontage requirements. solar access, if feasible, shall be provided at 10 feet above ground level at the southern building line two hours before and after the solar zenith from September 22nd to March 21st, and three hours before and after the solar zenith from March 22nd to September 21st. B. This solar access shall be protected by solar height restrictions on burdened properties for the benefit of lots or parcels receiving the solar access. C. If the solar access for any lot or parcel, either at the southern building line or at 10 feet above the southern building line, required by this performance standard is not feasible, supporting information must be filed with the application. FINDINGS: For the reasons set forth in the findings above concerning street frontage, incorporated by reference herein, the Hearings Officer finds Section 18.110.060(J)(2) exempts the applicant's proposal from the solar access standards in this section as well as those set forth in Title 18. p. 17.36.220, Underground Facilities Within an urban growth boundary, all permanent utility services to lots or parcels in a subdivision or partition shall be provided from underground facilities; provided, however, the Hearings Body may allow overhead utilities if the surrounding area is already served by overhead utilities and the proposed subdivision or partition would create Tess than 10 lots. The subdivision or partition shall be responsible for complying with requirements of DCC 17.36.220, and shall: FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject property is not located in an urban growth boundary. q. 17.36.230, Grading of Building Sites Grading of building sites shall conform to the following standards, unless physical conditions demonstrate the property of other standards: A. Cut slope ratios shall not exceed one foot vertically to one and one half feet horizontally. B. Fill slope ratios shall not exceed one foot vertically to two feet horizontally. C. The composition of soil for fill and the characteristics of Tots and parcels made usable by fill shall be suitable for the purpose intended. D. When filling or grading is contemplated by the subdivider, he shall submit plans showing existing and finished grades for the approval of the Community Development Director. In reviewing these plans, the Community Development Director shall consider the need for drainage and effect of filling on adjacent property. Grading shall be finished in such a manner as not to create steep banks or unsightly areas to adjacent property. FINDINGS: The proposed subdivision site currently is developed with a swimming pool, community building, parking areas and landscaping. The applicant's burden of proof states construction of the eight proposed townhomes will not require significant grading. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to comply with the grading standards in this section. s. 17.36.250, Lighting Within an urban growth boundary, the subdivider shall provide underground wiring to the County standards, and a base for any proposed ornamental street lights at locations approved by the affected utility company. FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject property is not located in an urban growth boundary. Section 17.36.260, Fire Hazards Whenever possible, a minimum of two points of access to the subdivision or partition shall be provided to provide assured access for emergency vehicles and ease resident evacuation. FINDINGS: Access to the subject property is from Cascade Lake Highway via Seventh Mountain Drive, an existing private road. In addition, the record indicates there is an emergency access/egress near the northeast corner of the adjacent Points West Subdivision that connects Seventh Mountain Drive to Elkai Woods Road in the Widgi Creek resort. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to provide to the Planning Division before final plat approval written documentation that the existing emergency ingress/egress for Widgi Creek will be available to the residents of the proposed new dwellings. u. 17.36.270, Street Tree Planting Street tree planting plans, if proposed, for a subdivision or partition, shall be submitted to the Planning Director and receive his approval before the planting is begun. FINDINGS: The applicant did not address this criterion in its burden of proof. The Hearings Officer finds the applicant's proposed landscape plan does not appear to propose any street trees. Rather, the landscape plan shows existing trees along Seventh Mountain Drive and Elkai Woods Drive would be retained. Therefore, I find this criterion is not applicable. v. Section 17.36.280, Water and Sewer Lines Where required by the applicable zoning ordinance, water and sewer lines shall be constructed to County and city standards and specifications. Required water mains and service lines shall be installed prior to the curbing and paving of new streets in all new subdivisions or partitions. FINDINGS: The applicant proposes to serve the new dwellings with domestic water via the existing private community water system owned and operated by SMGV Water Company and Bhelm, LLC). Sewage treatment would be provided through connection to existing City of Bend sewer facilities. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to construct all water and sewer lines to the applicable county and city standards and specifications, to install all required sewer and water mains prior to any street paving, and to provide to the Planning Division before final plat approval written verification that water and sewer lines have been extended to each lot. w. Section 17.36.300, Public Water System In any subdivision or partition where a public water system is required or proposed, plans for the water system shall be submitted and approved by the appropriate state or federal agency. A community water system shall be required where lot or parcel sizes are less than one acre or where potable water sources are at depths greater than 500 feet, excepting land partitions. Except as provided for in DCC 17.24.120 and 17.24.130, a required water system shall be constructed and operational, with lines extended to the lot line of each and every lot depicted in the proposed subdivision or partition plat, prior to final approval. FINDINGS: The proposed lots are less than one acre in size and therefore a community water system is required. The applicant proposes to provide domestic water through connection to the existing private community water system owned and operated by SMGV Water Company and Bhelm, LLC. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring that prior to final plat approval: (1) the water system shall be operational with lines extended to each lot; (2) any and all required plan review and approval of the water system by the Oregon Health Division (OHD) shall be performed; and (3) the applicant shall provide to the Planning Division written verification from the OHD of that review and approval. 4. Chapter 17.44, Park Development a. Section 17.44.010, Dedication of Land A. For subdivisions or partitions inside an urban growth boundary, the developer shall set aside and dedicate to the public for park and recreation purposes not less than eight percent of the gross area of such development, if the land is suitable and adaptable for such purposes and is generally located in an area planned for parks. FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject property is not located within an urban growth boundary. B. For subdivisions or partitions outside of an urban growth boundary, the developer shall set aside a minimum area of the development equal to $350 per dwelling unit within the development, if the land is suitable and adaptable for such purposes and is generally located in an area planned for parks. C. For either DCC 17.44.010 (A) or (B), the developer shall either dedicate the land set aside to the public or develop and provide maintenance for the land set aside as a private park open to the public. D. The Planning Director or Hearings Body shall determine whether or not such land is suitable for park purposes. E. If the developer dedicates the land set aside in accordance with DCC 17.44.010 (A) or (B), any approval by the Planning Director or Hearings Body shall be subject to the condition that the County or appropriate park district accept the deed dedicating such land. F. DCC 17.44.010 shall not apply to the subdivision or partition of lands located within the boundaries of a parks district with a permanent tax rate. FINDINGS: The subject property is located outside of an urban growth boundary and outside the boundaries of the Bend Metro Park and Recreation District. In the Hearings Officer's decision in Arrowood, I made the following findings under this section: "The Hearings Officer finds that in light of the subject property's location more or less in the center of a resort area that provides numerous recreational amenities and opportunities, and the proposed configuration of the subdivision, the proposed subdivision does not have land that is suitable and adaptable for park purposes and the applicant need not set aside park land. Rather, the applicant must comply with Section 17.44.020 discussed below." The Hearings Officer finds the proposed subdivision site also is in the center of the Widgi Creek resort and in close proximity to the many recreational amenities and opportunities provided in the resort. Therefore, I find the applicant need not set aside or dedicate park land in the proposed subdivision, but will be required to comply with Section 17.44.020.10 1° The Hearings Officer notes former Hearings Officer Briggs came to the same conclusion concerning the lack of necessity to set aside or dedicate park land in her 2006 decision approving the Points West Subdivision. b. Section 17.44.020, Fee in Lieu of Dedication A. In the event there is no suitable park or recreation area or site in the proposed subdivision or partition, or adjacent thereto, then the developer shall, in lieu of setting aside land, pay into a park acquisition and development fund a sum of money equal to the fair market value of the land that would have been donated under 17.44.010 above. For the purpose of determining the fair market value, the latest value of the land, unplatted and without improvements, as shown on the County Assessor's tax roll shall be used. The sum so contributed shall be deposited with the County Treasurer and be used for acquisition of suitable area for park and recreation purposes or for the development of recreation facilities. Such expenditures shall be made for neighborhood or community facilities at the discretion of the Board of County Commissioners and/or applicable park district. B. DCC 17.44.020 shall not apply to subdivision or partition of lands located within the boundaries of a parks district with a permanent tax rate. FINDINGS: The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to pay a fee in lieu of dedication of park land in the amount of $3,150 ($350 x 9 dwelling units). 5. Chapter 17.48, Design and Construction Specifications a. Section 17.48.160, Road Development Requirements -Standards A. Subdivision Standards. All roads in new subdivisions shall either be constructed to a standard acceptable for inclusion in the County maintained system or the subdivision shall be part of a special road district or a homeowners association in a planned unit development. FINDINGS: The applicant proposes a new subdivision road to serve four of the proposed eight lots. The other four lots would have access from Seventh Mountain Drive, an existing private road in Widgi Creek. The record indicates Seventh Mountain Drive is maintained by one or more of the existing Widgi Creek and Elkai Woods HOAs. The applicant proposes that maintenance of the new private road would be the responsibility of the HOA for the proposed new subdivision, therefore satisfying this criterion. b. Section 17.48.180, Private Roads The following minimum road standards shall apply for private roads: A. The minimum paved roadway width shall be 20 feet in planned unit developments and cluster developments with two foot wide gravel shoulders; B. Minimum radius of curvature, 50 feet; C. Maximum grade, 12 percent; D. At least one road name sign will be provided at each intersection for each road; E. A method for continuing road maintenance acceptable to the County; F. Private road systems shall include provisions for bicycle and pedestrian traffic. 1. In cluster and planned developments limited to ten dwelling units, the bicycle and pedestrian traffic can be accommodated within the 20 -foot wide road. 2. In other developments, shoulder bikeways shall be a minimum of four feet wide, paved and striped, with no on street parking allowed within the bikeway, and when private roads are developed to a width of less than 28 feet, bike paths constructed to County standards shall be required. Table A Footnote (8) 20' allowed for cul-de-sac's and roads with low anticipated traffic volumes as long as separate multiple use paths are provided. 28' width required (including the required 4' striped shoulder bikeway in each direction) for circulator and primary subdivision access roads and other roads when separate multiple use paths are not provided. FINDINGS: The Hearings Officer finds the portions of this section that are not expressly applicable to planned unit and cluster developments apply to the applicant's proposed zero -lot - line subdivision. I have found that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to improve the new private road in conformance with the county's standards for private roads in Table "A" to Title 17, including 20 feet of pavement width. As noted in the findings above, neither the road department nor the county's senior transportation planner identified the need for additional right- of-way for or improvements to Seventh Mountain Drive or Elkai Woods Drive to accommodate traffic generated by the new subdivision. IV. DECISION: For the foregoing reasons, the Hearings Officer hereby DENIES the applicant's proposed tentative subdivision plan, site plan, and LM review. In the event this decision is appealed to the Board of County Commissioners, and the Board elects to hear the appeal and approves the applicant's proposal on appeal, the Hearings Officer RECOMMENDS such approval be SUBJECT TO THE FOLLOWING CONDITIONS OF APPROVAL: 1. This approval for an eight -lot, zero -lot -line subdivision is based on the applicant's submitted tentative plan, site plan, burden of proof, supplemental nnennonanda, exhibhs, and written and oral testimony. Any substantial change to the approved tentative plan andlor site plan shall require new land use applications and approvals. PRIOR TO SUBMITTING THE FINAL SUBDIVISION PLAT FOR APPROVAL: 2. The applicant/owner shall submit to the Planning Division a revised site plan showing: G. the location and design of any above -ground utility facilities and the manner of screening with vegetation or otherwise so that adverse visual impacts on the site and neighboring properties are minimized; b. true color samples of the finish and roofing nnateha|a, demonstrating exterior finishes are in muted earth tones (e.g., brovvna, greens, or grays) that blend and reduce contrast with the surrounding vegetation and landscape of the building site, and that large an*ao, including roofa, are not finished with vvhite, bright or reflective materials; 3. The applicant/owner shall provide to the Planning Division written documentation from the SMGV Water Company that there is sufficient capacity in its water system and well permit to serve the nine dwellings approved in this decision and the nine dwellings approved in the Fairway decision (247 -14 -008395 -TP. 247-14-000395-@P. 247 -14- 000397 -LM). 4. The applicant/owner shall obtain approval of the subdivision name from the Deschutes County Surveyor. 5. The applicant/owner shall submit to the Planning Division written documentation from the City of Bend Fire Department that all requirements for fire apparatus access roads and fire protection water supplies have been met. 6. The applicant/owner shall submit to the Planning Division a new sewer analysis memo from the City of Bend documenting that sewer capacity is still avai|ab|e, and written documentation from the City of Bend that all required upgrades to the existing lift station on the Widgi Creek GoIf Course have been completed. WITH OR ON THE FINAL PLAT: 7. The applicant/owner shall prepare the final plat in accordance with Title 17 of the Deschutes County Code, including all the necessary information required by Section 17.24.060. 8. The applicant/owner shall show on the final plat: a. the exact lot size of each residential lot; C. all easements of record and exsting rightsof-way; d. a statement of water rights as required by ORS 92.120; e. all utility and f. all public access easements. 9. The final plat shall be signed by all persons with an ownership interest in the property, as well as the Deschutes County Assessor and Tax Collector. 10. The applicant/owner shall record wth the Deschutes County Clerk a perpetual easement allowing Bend-LaPine School District vehicles to travel on Seventh Mountain Drive. 11. The applicant/owner shall provide to the Planning Division certification by a licensed professional engineer that drainage facilities have been designed and constructed in accordance with the current Central Oregon Stormwater Manual to receive and/or transport stormwater from at least the design storm (as defined in the current Central Oregon Stormwater Manual) for all surface drainage water including stormwater coming to and/or passing through the development. WITH CONSTRUCTION: 12. The applicant/owner shall assure that no dwellings exceed thirty (30) feet in height. 13. The applicant/owner shall install any outdoor Iighting in conformance with the county's outdoor lighting standards in Chapter 15.10 of the Deschutes County Code. 14. The applicant/owner shall install any signs in conformance with the sign regulations in Chapter 15.08 of the Deschutes County Code. 15. The applicant/owner shall install all surface drainage systems in conformance with the applicable Department of Environmental Quality (DEQ) design standards for such systems. to construct all water and sewer lines to the applicable county and city standards and apecificoUona, to install all required sewer and water mains prior to any street pavinQ, and to provide to the Planning Division before final plat approval written verification that water and sewer lines have been extended to each lot. 16. The applicant/owner shall assure compliance with all requirements of the Americans with Disabilities Act (ADA) identified by the county during the building plan review and permitting process for the dwellings. 17. The applicant/owner shall comply with the county's grading standards in Section 17.36.230. 18. The applicant/owner shall provide for each dwelling a ground -level space with an 19. If the approved dwellings are constructed with metal roofa, the applicant/owner shall assure those roofs are non -reflective and of a color that blends with the surrounding vegetation and Iandscape. 20. The applicant/owner shall install all utilities underground. 21. The applicant/owner shall provide domestic water service to each approved dwelling through extension of and connection to the SMGV water system. 22. The applicant/owner shall provide sewer service to each approved dwelling through extension of and connection to the City of Bend sewer system. AT ALL TIMES: 23. The applicant/owner shall assure that parking spaces for the dwellings are available for the parking of operable passenger automobiles of residents only and are not used for the storage of vehicles or materials or for the parking of trucks used in conducting the business or used in conducting the business or use. 24. The applicant/owner shall install any lighting used to illuminate off-street parking areas so that it will not project light directly upon any adjoining property. 25. The applicant/owner shall retain and preserve all existing vegetation on the subject site that is not required to be removed for construction. 26. The applicant/owner shall assure that address numbers are provided for each dwelling in as required by the Oregon Fire Code. 27. The applicant/owner shall maintain the paved driveways for the approved dwellings so that any surface water drainage will be contained on each lot or diverted to existing storm drain facilities. DURATION OF APPROVAL: 28. The applicant/owner shall complete all conditions of approval and apply for final plat approval from the Planning Division within two (2) years of the date this decision becomes final, or obtain an extension the approval in this decision in accordance with the provisions of Title 22 of the County Code, or the approval shall be void. l. 2015. Mailed this 6th day of April, 2015. THIS DECISION BECOMES FINAL TWELVE DAYS AFTER THE DATE OF MAILING DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: 247 -14 -000395 -TP, 247 -14 -000396 -SP, 247 -14 -000397 -LM APPLICANT: Kine and Kine Properties 1133 N.W. Wall Street, Suite 1 Bend, Oregon 97701 PROPERTY OWNER: Bhelm, LLC 18707 S.W. Century Drive Bend, Oregon 97701 APPLICANT'S ATTORNEY: Tia M. Lewis Schwabe, Williamson & Wyatt 549 S.W. Mill View Way, Suite 100 Bend, Oregon 97702 APPLICANT'S ENGINEER: OPPONENTS' ATTORNEY: REQUEST: HEARING DATE: HWA, Hickman, Williams & Associates, Inc. 62930 O.B. Riley Road, Suite 100 Bend, Oregon 97701 Michael H. McGean Francis Hansen & Martin LLP 1148 N.W. Hill Street Bend, Oregon 97701 Attorney for Elkai Woods HOA, Elkai Woods Fractional HOA, and Widgi Creek HOA The applicant requests approval of a nine -lot, zero -lot -line subdivision called "The Refuge at Widgi Creek," as well as site plan and LM review for dwellings on the proposed subdivision lots, on property in Widgi Creek zoned RC and LM and located between Seventh Mountain Drive and the first fairway of the Widgi Creek Golf Course (Fairway application).' January 6, 2015 RECORD CLOSED: February 3, 2015 1. APPLICABLE STANDARDS AND CRITERIA: A. Title 17 of the Deschutes County Code, the Subdivision/Partition Ordinance 1 Chapter 17.16, Approval of Subdivision Tentative Plans and Master Development Plans 1 The applicant also submitted applications for tentative plan, site plan and LM review approval for an 8 - lot, zero -lot -line subdivision in Widgi Creek on common area developed with a pool, community building, and parking lot (File Nos. 247 -14 -000391 -TP, 247 -14 -000393 -SP, 247 -14 -000493 -LM) (Pool application). * Section 17.16.100, Required Findings for Approval * Section 17.16.105, Access to Subdivisions 2. Chapter 17.20, Zero Lot Subdivision * Section 17.20.010, Requirements * Section 17.20.100, Required Findings for Approval 3. Chapter 17.36, Design Standards * Section 17.36.020, Streets * Section 17.36.040, Existing Streets * Section 17.36.050, Continuation of Streets * Section 17.36.060, Minimum Right of Way and Roadway Width * Section 17.36.080, Future Extension of Streets * Section 17.36.120, Street Names * Section 17.36.130, Sidewalks * Section 17.36.140, Bicycle, Pedestrian and Transit Requirements * Section 17.36.150, Blocks * Section 17.36.160, Easements * Section 17.36.170, Lots — Size and Shape * Section 17.36.180, Frontage * Section 17.36.190, Through Lots * Section 17.36.200, Corner Lots * Section 17.36.210, Solar Access Performance * Section 17.36.220, Underground Facilities * Section 17.36.230, Grading of Building Sites * Section 17.36.250, Lighting * Section 17.36.260, Fire Hazards * Section 17.36.270, Street Tree Planting * Section 17.36.280, Water and Sewer Lines * Section 17.36.300, Public Water System 4. Chapter 17.44, Park Development * Section 17.44.010, Dedication of Land * Section 17.44.020, Fee in Lieu of Dedication 5. Chapter 17.48, Design and Construction Specifications * Section 17.48.160, Road Development Requirements -- Standards * Section 17.48.180, Private Roads B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance Chapter 18.04, Title, Purpose and Definitions * Section 18.04.030, Definitions 2. Chapter 18.08, Basic Provisions * Section 18.08.020, Existing Agreements and Zoning Permits 3. Chapter 18.84, Landscape Management Combining Zone * Section 18.84.020, Application of Provisions * Section 18.84.030, Uses Permitted Outright * Section 18.84.050, Use Limitations * Section 18.84.080, Design Review Standards * Section 18.84.090, Setbacks * Section 18.84.095, Scenic Waterways 4. Chapter 18.110, Resort Community Zone * Section 18.110.010, Purpose * Section 18.110.020, Seventh Mountain/Widgi Creek and Black Butte Ranch Resort Districts * Section 18.110.060, Development Standards 5. Chapter 18.116, Supplementary Provisions * Section 18.116.030, Off -Street Parking and Loading * Section 18.116.031, Bicycle Parking * Section 18.116.180, Building Setbacks for the Protection of Solar Access 6. Chapter 18.124, Site Plan Review. * Section 18.124.030, Approval Required * Section 18.124.060, Approval Criteria * Section 18.124.070, Required Minimum Standards C. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.04, Introduction and Definitions * Section 22.04.020, Definitions 2. Chapter 22.20, Review of Land Use Action Applications * Section 22.20.055, Modification of Application 3. Chapter 22.24, Land Use Action Hearings * Section 22.24.140, Continuances and Record Extensions D. Deschutes County Comprehensive Plan 1. Chapter4, Urban Growth * Section 4.3, Unincorporated Communities * Section 4.8. Resort Communities * Section 4.8, Resort Community Policies I. FINDINGS OF FACT: A. Location. The subject property is identified as Tax Lot 2001 on Deschutes County Assessor's Map 18-11-00. The area proposed for the subdivision consists of 0.9 acres located between Seventh Mountain Drive and first fairway of Widgi Creek Golf Course. B. Zoning and Plan Designation. The subject property is zoned Resort Community (RC) and Seventh Mountain Widgi Creek Resort (SMWCR) OiStrict, and is within the Landscape Management (LM) Zone associated with Century Drive. The property is designated Resort Community on the Deschutes County comprehensive plan map. C. Lot of Record. The applicant stated the subject property is a legal lot -of -record because it has received multiple previous land use approvals, including: (1) a sin permit (S-05-9); (2) LM review (LM -05-110) and site plan approval XSP-05-34\ for construction of the existing golf course maintenance/storage building; and (3) a lot line adjustment (LL -08-42). However, the staif report states the applicant has misidentified the legal -lot -of record and that two legal lots comprise the subject property, described as follows. Legal Lot 1: That portion of Tax Lot 2001OnAssessor's map 18-11-00 that is east of the Cascade Lakes Highway (also known as Century Drive), and south and west of Seventh Mountain Drive; Tax Lot 38O00nmap 1#-11-22A;Tract /\inthe Seventh Mountain Golf Village Subdivision; Tax Lot 1800 on map 18-11-22DA; Tract B in the Elkai Woods Townhomes Phase | Subdivision that is west and north of Elkai Woods Townhomes Phase |. ||. and IV Subdivisions, and west of Elkai Woods Townhomes Phase V; and "Replat of Lots 21 thru 28 and Common Areas 6 & 7 Elkai Woods Townhomes Phase |||"' that is north of the Points West Subdivision, north of Tax Lot 9800 on map 18-11- 22C.and east ofTax Lot 17U1onmap 18-11-22C.The staff report states this legal lot ia approximately 40 acres in size. Legal Lot 2: That portion of Tax Lot 2001 nnAssessor's map 1G-11-00that was left oeo remainder lot following platting of the Seventh Mountain Golf Village Subdivision and that is surrounded by Tract A, Tract B. and Lots 77-85 and 87-107 of that subdivision. The staff report states this legal lot is approximate 26 acres in size. D. Site Description. The subject property consists of the twa legal lots described in the findings above, comprising a portion of the Widgi Creek Resort Community (Widgi Creek) that includes the golf course, club houae, reataunant, golf maintenance facilities, and sewer pump station. The specific area proposed for the nine -lot zero -lot -line subdivision is 0.9 acres located between Seventh Mountain Drive and the first fairway of Widgi Creek Golf Course on the south side of Seventh Mountain Drive. This area is level to generally rolling with vegetation consisting of scattered juniper and ponderosa pines trnes, a few deciduous trees, native brush and grasses, and lawn areas. The site surrounds a community mailbox facility. E. Surrounding Zoning and Land Uses. The subject property is located within Widgi Creek which consists of a mixture of residential and recreational faci|iUea, including single-family detached and attached dvve||inga, a golf course, club houee, tennis courta, pool, and private noods, bicycle paths and golf cart paths. One of the legal lots is surrounded by the Seventh Mountain Golf Village Subdivision. The other legal lot is located north of the Inn of the Seventh Mountain (Seventh Mountain) resort, the Points West Phase | townhome community (Points West), and the Elkai Woods Townhomes Subdivisions (Elkai Woods). The Seventh Mountain development consists of approximately 240 condominium units as well as resort facilities including conference facilities, two pools, a restaurant, and an ice skating rink. All of the surrounding developments are zoned RC designated Resort Community. Widgi Creek abuts Cascade Lakes Highway on the north and the Deschutes River canyon on the south. The Deschutes National Forest (DNF) surrounds Widgi Creek and Seventh Mountain. F. Land Use History. The Seventh Mountain resort was established prior to the county's adoption of land use regulations. The Seventh Mountain/Widgi Creek/Elkai Woods developments have a long land use history dating back to at least 1983 when Widgi Creek received its original land use approval (Z-83-7, MP -83-1, CU -83-107). The staff report lists the following land use permits and approvals as applicable to Tax Lot 2001: MC8922 MC9021 MC9014 PA908 TP90735 MC9018 MC9024 V9112 S9137 SP9121 S9136 AD9428 SP9445 AD9516 FP951 MP9519 SP9672 SP9674 TP96857 SP9610 SP965 FPA9714 FPA9749 SP9731 SP9752 SP9857 SP9842 Modification Of Conditions For The Golf Course At The Inn Of The Seventh Mountain Modification Of Conditions For The Expansion To The Inn Modification Of Conditions For The Inn Of The Seventh Mountain's Subdivision Plat Extension Of City Sewer Line To Inn Tentative Plat For 107 Lots At The Inn Of The Seventh Mountain Modification Of Conditions To Allow A Sales Office For New Lots At The Inn of The Seventh Mountain Modification Of Conditional Use Permit Variance To Sign Code Permit Sign For Seventh Mt. Golf Village Clubhouse Site Plan Sign For Seventh Mountain Golf Village Ad For Widgi Creek Minor Alteration For Sales Office At Restaurant Declaratory Ruling For Status Of Widgi Creek/Seventh Mountain Golf Village, And Condo Site Financial Segregation Partition To Divide Remainder Lot At Widgi Creek/Seventh Mountain Golf Village Site Plan Review For Golf Course Clubhouse Site Plan Review For Amenities Complex For The Elkai Woods Townhome Development Within In Widgi Creek PUD Tentative Plat/Master Plan For 86 Townhouse Lots--Elkai Woods Site Plan For 8 Townhouse Units --Phase I Elkai Woods Site Plan Approval For Improvements To Maintenance Facility. Final Plat Approval For Elkai Woods Townhomes At Widgi Creek Final Plat Review For Phase li Elkai Woods Site Plan Review For Elkai Woods Phase li Site Plan For Permanent Restrooms To Replace Temporary Restrooms For Golf Course Site Plan For Phase III Of Elkai Woods At Widgi Creek Site Plan For Elkai Amenities Buildings FPA997 FPA0011 LM0511O SP0534 LL0842 SP0915 Final PIat Review For Elkai Woods Phase 111 Final Plat Review Of TP -96-857 Landscape Management Site PIan For Sign. Site Plan For New Storage Building For Widgi Creek Golf Course Lot Line Adjustment Site PJan Review For Addition To Storage Building G. Procedural History: These applications were submitted on November 17, 2014, and were accepted by the county as complete on December 17, 2014. Therefore, the 150 -day period for issuance of a final local land use decision under ORS 215.427 would have expired on May 18, 2015.2 The Hearings Officer conducted a site visit to the subject property and vicinity on January 6, 2015, accompanied by Senior Planner Will Groves. A combined public hearing on the applicant's Fairway and Pool proposals was held on January 6, 2015. At the hearing, the Hearings Officer disclosed my observations and impressions from my site viaii, received testimony and evidence, left the written evidentiary record open through January 27, 2015. and allowed the applicant through February 3, 2015 to submit final argument pursuant to ORS 197.763. The applicant submitted its final argument on February 3, 2015 and the record closed on that date. Because the applicant agreed to extend the written record from January 6 through February 3, 2015, under Section 22.24.140 of the procedures ordinance, the 150 -day period was tolled for 28 days and now expires on June 15, 2015. As of the date of this decision, there remain 70 days in the extended 150 -day period. H. Proposal. The applicant proposes to create a nino-bt, zero -lot -line subdivision to be called "The Refuge at Widgi Creek" on land located between Seventh Mountain Drive and the first fairway of the Widgi Creek Golf Course. The applicant also requests site plan approval and LM review for the proposed townhome dwellings on the subdivision lots. The applicant's original proposal included six off-street parking spaces on the north side of Seventh Mountain Drive. However, the applicant withdrew that proposal. The staff notes the applicant's burden of proof addresses only the proposed 9 -lot, zero-lot- |ineaubdivioionanddoeenctdiacuaatheatatuaoftheneady4U-ocrg^ngrnainder|ot" that would be created as the result of platting the proposed subdivision or the 26 -acre "Legal Lot 2." In its final apgurnent, the applicant stated it has no immediate development plans for these two remainder lots, and agrees to a condition of approval that would preclude the applicant from seeking building permits on either of the remainder lots without first obtaining land use review and demonstrating water is available. I. Public/Private Agency Comments. The Planning Division sent notice of the applicant's proposal to a number of public and private agencies and received responses from: the Deschutes County Senior Transportation Planner and Road Department (road department); the City of Bend Fire Department (fire department); and the Oregon Department Water Resources (OWRD), Watermaster-District 11. These comments are set forth verbatim at page 5 of the staff report and are included in the record. The following agencies did not respond to the request for comments or submitted a "no comment" response: the Deschutes County Assessor and Building Division; the City of Bend Planning Department and Public Works Department; the Oregon Department of Transportation (ODOT); Pacific Power; and CenturyLink. 2 As the 150th day falls on a Saturday, under Section 22.08.070 the 150th day is Monday, May 18, 2015. J. Public Notice and Comments. The Planning Division mailed individual written notice of the applicant's proposal and the public hearing to the owners of record of all property located within 250 feet of the boundaries of Tax Lot 2001. The record indicates this notice was mailed to the owners of 25 tax lots. In addition, notice of the public hearing was published in the Bend "Bulletin" newspaper, and the subject property was posted with a notice of proposed land use action sign. As of the date the record in this matter closed, the county had received 52 letters from the public and two petitions signed by a total of 159 persons. In addition, 12 members of the public testified at the public hearing. Public comments addressed both the Fairway and Pool proposals and are discussed in the findings below. 11I. CONCLUSIONS OF LAW: A. Summary: The Hearings Officer has found that because the proposed subdivision site was "developed as golf course" in 2001, it is subject to Comprehensive Plan Policy 4.8.2 which requires that the site remain as golf course or be developed for open space or recreation uses. Consequently I cannot approve the proposed residential subdivision. However, because I anticipate this decision will be appealed to the Board of County Commissioners (board), in the event the board elects to hear the appeal and to assist the board and county staff in that appeal, I have included in this decision findings concerning the proposal's compliance with applicable provisions of the comprehensive plan and Titles 17 and 18, as well as recommended conditions of approval. B. Preliminary Issues: 1. Effect of Pending LUBA Appeal. FINDINGS: On September 29, 2014, the Hearings Officer issued a decision granting tentative plan, site plan, and LM approval for a 24 -lot, zero -lot line subdivision called "Mile Post One" in Widgi Creek. (Arrowood, TP -14-1024, SP -14-8, LM -14-17). In that decision, I held the RC Zone governs development in Widgi Creek and superseded the Widgi Creek master plan. Opponents in Arrowood, who also are opponents of the subject application, appealed my decision to LUBA. As of the date of this decision, LUBA had not issued its decision on the Arrowood appeal. I understand opponents in the subject application have presented the same arguments concerning application of the master plan in their appeal to LUBA as they have here. Therefore, LUBA's decision in the Arrowood appeal likely will be relevant to the subject applications. Nevertheless, in the absence of a stay of the Fairway and Pool applications from LUBA, and/or the applicant's agreement to toll the 150 -day period while the LUBA appeal is pending, I find I cannot delay issuing the subject Fairway and Pool decisions. 2. Incomplete Application. FINDINGS: In his January 6, 2015 memorandum, Michael McGean, attorney for opponents Elkai Woods Homeowners Association, Elkai Woods Fractional Homeowners Association, and Widgi Creek Homeowners Association (hereafter "HOAs"), stated: "As the staff report notes, the County Transportation Planner finds that the application is lacking a Site Traffic Report under DCC 18.16.310(F). The application in its current form must therefore be denied. If applicant applies to modify its application under DCC 22.20.055, the application should be re -noticed and re -set for a new hearing." There is no section 18.16.310(F) in Title 18. The Hearings Officer assumes Mr. McGean meant to cite Section 17.16.115(F) of the subdivision ordinance which establishes minimum requirements for a site traffic report. In response to the aforementioned comments from the county's Senior Transportation Planner Peter Russell, the applicant submitted a site traffic report on January 20, 2015. I find submission of this report following the county's acceptance of the applicant as complete did not constitute a modification under Section 22.20.055. "Modification of application" is defined in Section 22.04.020 as: * the applicant's submittal of new information after an application has been deemed complete and prior to the close of the record on a pending application that would modify a development proposal by changing one or more of the following previously described components: proposed uses, operating characteristics, intensity, scale, site layout (including but not limited to changes in setbacks, access points, building design, size or orientation, parking, traffic, or pedestrian circulation plans), or landscaping in a manner that requires the application of new criteria to the proposal or that would require the findings of fact to be changed. It does not mean an applicant's submission of new evidence that merely clarifies or supports the pending application. The Hearings Officer finds the applicant's site traffic report did not constitute a modification because it did not change the development proposal. Rather, it constituted new evidence that clarifies and supports the applicant's proposal. Therefore, I find the applicant was not required to submit a modification application, and the county was not required to re -notice the application or set it for a new hearing. In her December 12, 2014 letter, opponent Barbara Munster, President of the Widgi Creek HOA, argued the subject application was incomplete and should not have been accepted by the county because "there are several blanks in" the application. However, Ms. Munster does not identify what information she considers missing from the application. She does state her belief that the applicant incorrectly identified the applicable zoning of the subject property as SMWCR when "it has always been Resort Community." The Hearings Officer finds the SMWCR designation is correct and reflects the area within the Widgi Creek RC Zone in which the subject property is located. 3. Resort Community Zoning and Designation. FINDINGS: Several opponents argue Widgi Creek is not a "resort community" and therefore should not be subject to the RC Zone. As discussed in the findings below, the county's decision to designate and zone Widgi Creek a "resort community" was made by the board in 2001. That decision is final and is not before me in this matter. 4. Need. Opponents argue there is no need for the proposed new dwellings. The Hearings Officer finds need for housing is not an approval criterion for the applicant's proposal under Titles 17 and 18. 5. Savings Clause. Opponents argue that the Widgi Creek master plan remained in effect after the board's adoption of the RC Zone based on the following language in Section 18.08.020: DCC Title 18 does not repeal, abrogate or impair any existing easements, covenants, deed, restrictions or zoning permits such as preliminary plat and partition approvals, conditional use permits, nonconforming use permits, temporary use permits, special exceptions or building permits. This "savings clause" was included in Title 18 when it was adopted in 1979. The Hearings Officer finds this language signifies that any land use approvals and permits in effect on the date Title 18 took effect would continue to be valid. In other words, the effect of the "savings clause" was to apply Title 18 prospectively. In my decision in Arrowood, I held that if the board had intended to preserve Widgi Creek's master plan as the controlling regulation for Widgi Creek development it would have included a "savings clause" in Ordinance Nos. 2001-047 and 2001- 048. The board did not do so. I found the lack of a "savings clause" in those ordinances indicates the board intended the RC Zone to apply to future development in Widgi Creek. I adhere to that holding here. C. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance RESORT COMMUNITY ZONE STANDARDS 1. Chapter 18.110, Resort Community Zone a. Section 18.110.010, Purpose The purpose of the Resort Community Zone is to provide standards and review procedures for development in the communities of Black Butte Ranch and the Inn of the Seventh Mountain/Widgi Creek. The provisions of this chapter shall apply to any Resort Community that is planned pursuant to OAR 660 Division 22. FINDINGS: As was the case in the aforementioned Arrowood application, the threshold issue in the Fairway and Pool applications is the relationship between the RC Zone and the Widgi Creek master plan approved in 1983. In Arrowood, the Hearings Officer found the master plan was superseded by the RC Zone when it was adopted and applied to Widgi Creek in 2001. I also found the property for which Arrowood sought approval to develop the Mile Post One subdivision was specifically identified by the board in 2001 as available for development, and the board stated it intended that future residential development of any remaining undeveloped land within Widgi Creek "would be subject to" the RC Zone provisions. In my decision, I also noted that when former Hearings Officer Anne Briggs approved Arrowood's development plan for the Points West Subdivision (TP -06-968, SP -06-13, LM -06-34), she rejected the HOAs' argument that the Widgi Creek master plan forbade further development within Widgi Creek. Her decision was not appealed. Opponents of the applicant's Fairway and Pool applications argue this Hearings Officer's decision in Arrowood was wrong, and that the Widgi Creek master plan prohibits further residential development in Widgi Creek in general, and on the proposed fairway and pool sites in particular. They submitted extensive evidence and argument in support of their position. For the reasons set forth in my Arrowood decision, I adhere to my holding that the RC Zone superseded the master plan and now governs development within Widgi Creek. However, because I find it is likely my Fairway and Pool decisions will be appealed to the board, I include the following detailed findings concerning the relationship between the Widgi Creek master plan and the RC Zone. In the Hearings Officer's Arrowood decision I included the following brief history of the RC Zone: "In 1997 the Land Conservation and Development Commission (LCDC) adopted Division 22 of its administrative rules (OAR Chapter 660) to establish statewide policies and procedures for planning and zoning of 'unincorporated communities.' OAR 660-22-0010 included within 'unincorporated communities' the category of 'resort community,' defined as 'an unincorporated community that was established primarily for and continues to be used primarily for recreation and resort purpose&' In 1998, as part of its required 'periodic review,' the county began the 'unincorporated community planning project' for the Seventh Mountain and Widgi Creek resorts in order to conform them with LCDC's 'unincorporated community' administrative rules. In December of 2001 the county adopted Ordinance No. 2001-48, effective March 13, 2002, amending Title 18 to adopt new definitions, to take exceptions to the applicable statewide land use planning goals for both the Black Butte Ranch and Seventh Mountain/Widgi Creek resorts, to adopt the Resort Community Zone through Chapter 18.110, and to adopt new zoning and comprehensive plan maps for the Seventh Mountain/Widgi Creek resorts to include them within the Resort Community Zone and plan designation in general, and the SMWCR Zone in particular. The record indicates these amendments subsequently were acknowledged by LCDC." 3 Prior to adoption of the 2001 ordinances, Widgi Creek was zoned Forest Use (F-3) which did not allow a resort. Widgi Creek had not been approved as a destination resort under Goal 8 (Recreational Needs) and its implementing administrative rules. Therefore, to comply with the "unincorporated community" administrative rules, the county had to take three steps for Widgi Creek: (1) adopt an exception to Goal 4 (Forest Lands); (2) adopt comprehensive plan and zoning ordinance provisions implementing the "unincorporated community" administrative rules; and (3) adopt a plan amendment, map amendment, and zone change to designate and zone Widgi Creek "resort community." These steps were accomplished through the adoption of Ordinance Nos. 2001-047 and 2001-048, which also implemented the "unincorporated community" administrative rules for Black Butte Ranch. The board adopted extensive findings in support of Ordinances 2001-047 and 2001-048. These findings are somewhat contradictory, and as a result both the applicant and opponents point to these findings as support for their respective positions. For the reasons set forth below, the Hearings Officer finds that when the board adopted the RC Zone and applied it to Widgi Creek, it intended the RC Zone, and not the Widgi Creek master plan, to govern development in Widgi Creek. 1. Goal Exception. The board adopted a "physically developed" exception to Goal 4 for Widgi Creek under Oregon Administrative Rules (OAR) 660-004-0025 which states: (1) A local government may adopt an exception to a goal when the land subject to the exception is physically developed to the extent that it is no 3 The board also adopted Ordinance 2001-047, also effective March 13, 2002, amending the comprehensive plan and zoning ordinance to take an exception to Goal 4, and to adopt the RC Zone and designation, for Widgi Creek. longer available for uses allowed by the applicable goal. Other rules may also apply, as described in OAR 660-004-0000(1). (2) Whether the land has been physically developed with uses not allowed by an applicable goal will depend on the situation at the site of the exception. The exact nature and extent of the area found to be physically developed shall be clearly set forth in the justification for the exception. The specific area(s) must be shown on a map or otherwise described and keyed to the appropriate findings of fact. The findings of fact shall identify the extent and location of the existing physical development on the land and can include information on structures, roads, sewer and water facilities, and utility facilities. Uses allowed by the applicable goal(s) to which an exception is being taken shall not be used to justify a physically developed exception. (Emphasis added.) Ordinance No. 2001-047 includes the following findings in support of the "physically developed" exception for Widgi Creek: "The Inn/Widgi site is already developed to an extent which, for all practical purposes, limits its use to the type of resort uses that already exist. Resort Community zoning is being adopted concurrent with this exception. The resort community zoning uses permitted in the County zoning ordinance, Title 18 of the County Code, will further limit any future development to resort related uses only. *** The County is proposing a goal exception based on the existing physical developments on the property, which are not allowed under Goal 4. These physical developments include the existing Inn of the Seventh Mountain resort and condominium facility and the existing Widgi Creek residential and golf course facility. The site is also developed with expanses of paved roads, parking areas and vehicle storage and maneuvering areas. The physical improvements at the Inn of the Seventh Mountain are illustrated and described in detail on Figure 3, a site plan drawing covering this 80 -acre site. Figure 4, an aerial photograph of the site and surrounding lands, also illustrates development of the site. As indicated on these exhibits, the property is physically developed with resort facilities and accessory uses including condominiums, convention facilities, restaurants, and numerous recreational facilities (pool complex, spa, ice/roller rink, volleyball pit, tennis courts, equestrian center, etc.) A small 1.2 -acre area formerly used for on-site sewage treatment, located near the boundary with Widgi Creek to the east, might be redeveloped some day for resort uses, but no plans exist as of now for this to occur. This area is surrounded by resort development and could only be redeveloped in the future for resort purposes. A second area on the property, approximately 13 acres in size, of which only about 8-9 acres is usable due to steep slopes down to the Deschutes River, could possibly be developed in the future for resort facilities such as a lodge, single-family or multi -family dwellings, or conference center. * * * Widgi Creek was Gpp/oved in 1983 as a resort including 107 single-family homes, 103 townhouses, a regulation golf course and appurtenant golf facilities, including clubhouse, driving range and maintenance facilities. The physical developments 8/Widgi Creek encompass 237acres and are shown OOFigures 5 and 6 (an aerial photograph). The layout for town homes, known as Elkai Woods, is depicted on Figure 6. When Widgi Creek was approved it was zoned F3. In 1092 when the County amended its Forest zone and discontinued the F3 zone to comply with Iegislative changes, the resort became zoned F2 and became a nonconforming use. As of November 2001, 70 homes have been constructed and all lots have been sold. The majority of townhomes have been constructed. The remaining town homes are expected to be completed in 2002. Similar to the Inn of the Seventh Mountain,Widgi Creek has never been approved as a Goal 8 destination resort, however the development of the site justifies a 'physicallydeveloped; exception to Goal 4. As illustrated in the Figures, Widgi Creek is for all Practical purposes built -out." (Bold and underscored emphasis added.) Opponent HOAs argue the above -underscored language signifies the board found no further development could occur in Widgi Creek beyond the uses and densities approved in 1083. The Hearings Officer disagrees. The board expressly identified two undeveloped areas within Widgi Creek totaling approximately 14 acres that could be developed in the future "for resort facilities" including single-family dwellings. One of those areas was approved for development of the Mile Post One subdivision. In oddiUon, the board's "built -out" language must be read in its context of supporting a "physically developed" exception to Goal 4. That exception required the county to find Widgi Creek was physically developed to the extent that it is no Ionger available for uses permitted on forest lands. In that context, | find the above -underscored language means that as of the date of the board adopted the exception to Goal 4, it found all but approximately 14 acres of the 237 -acre Widgi Creek had been physically dgve|opad, that any future development within Widgi Creek would be as a resort and not for forest uses, and therefore Widgi Creek qualified for a "physically developed" exception because it was no longer available for forest uses. Finally, the Hearings Officer finds the above -quoted language in bold type indicates the board understood and intended that there could be future development within Widgi Creek, but that any such development would be governed by the provisions of Title 18. As discussed in detail in the findings be|ovv, the board adopted comprehensive plan policies that both contemplate potential redevelopment of developed land within Widgi Creek, and strictly limit that redevelopment in terms of the type and density of uses. Howevnr, there is no reference to the Widgi Creek master plan in either the plan policies or the RC Zone. 2. Resort Community Designation and Zoning. As part of its adoption of the "resort community" designation and zoning for Widgi Creek, OAR 880-022-0080 required the county to demonstrate its process afforded adequate opportunities for Widgi Creek owners and residents to participate. The board's findings in support of the RC designation and zoning state adopted in Ordinance No. 2001-47 state in relevant part: "The meetings were well attended by resort staif and representatives, particularly at the [Black Butte] Ranch where the Board of Directors for the owner's association and resort staff took a very active role in reviewing policies and draft ordinance language. Attendance by and contact from individual landowners at both resort areas, and by agency staff, was generally sparse. This may have been due to a perception that significant changes would not occur at either resort as a result of this proiect work because both resorts are substantially built out and have their own internal controls for future development in accordance with approved master plans. This is a correct perception for the most part. However, the 82 -acre exception area that would be included in the Ranch boundary and an internal piece of land encompassing approximately 8-9 buildable acres at Inn/Widgi both offer significant potential for some additional development. This potential could not be realized at either resort unless and until rezoning to a Resort Community designation occurs, concurrent with the exceptions to Goal 4 previously described. However, development in each of these exception areas will be limited by the zoning ordinance restrictions in Chapter 18.110 of the County zoning ordinance."(Underscored and bold emphasis added.) Opponents argue the above -underscored reference to master plans signifies the board intended future development in the resorts would be governed by those plans. Again, the Hearings Officer disagrees. I find this language also must be read in its context as part of the board's explanation for the lack of significant resort landowner participation in the public meetings concerning adoption of the RC Zone -- presumed to be due to their "perception" that no significant changes would occur following that rezoning. However, I find the above -quoted language in bold type makes clear the board understood and intended that future development in Widgi Creek following the RC designation and zoning would be governed by Title 18 and the provisions of the RC Zone — not by the master plans. Through Ordinances 2001-047 and 2001-048 the board also adopted comprehensive plan policies and zoning regulations implementing the "unincorporated communities" administrative rules, the purpose of which is set forth in OAR 660-022-0000 as establishing statewide policy for planning and zoning unincorporated communities in rural Oregon. They are defined in OAR 660-022-010(9) primarily as lands: (a) subject to an exception to Goal 3 or 4; (b) located outside a city and urban growth boundary (UGB); and (c) falling within the definition of one of the four types of unincorporated communities — e.g., "resort community." OAR 660-022-0030(2), governing planning and zoning for unincorporated communities, states the county "may authorize any residential use and density * * * subject to the requirements of" OAR 660-022 (emphasis added). OAR 660-022-030(6), (7), and (8) establish the parameters for county zoning ordinance provisions governing uses allowed in unincorporated communities as follows: (6) County plans and land use regulations shall ensure that new or expanded uses authorized within unincorporated communities do not adversely affect agricultural or forestry uses. (7) (8) County plans and land use regulations shall allow only those uses which are consistent with the identified function, capacity and level of service of transportation facilities serving the community, pursuant to OAR 660-012- 0060(1)(a) through (c) [Transportation Planning Rule]. Zoning applied to lands within unincorporated communities shall ensure the cumulative development: (A) Will not result in public health hazards or adverse environmental impacts that violate state or federal water quality regulations; and (B) Will not exceed the carrying capacity of the soil or of existing water supply resources and sewer services. Under the administrative nu|es, the county's comprehensive plan and zoning ordinance provisions for unincorporated communities must assure new and expanded development does not exceed the capacity of available infrastructure. OAR 660-022-0040/7\ requires counties to include findings demonstrating compliance with the unincorporated communities rule. The board's findings in support of Ordinances 2001-047and 2001-048include the following pertinent findings under Paragraphs (7) and (8) of OAR 000-022-0030 and OAR 000-022-050 dealing with community public facilities plans: "The Resort Community designation will not allow any new types of uses to be developed other than resort -related facilities as both communities are substantially developed as resorts. ' * * * has its own welis and uses city sewer services. Existing services meet current needs and are not in danger of becoming insufficient. Weekly water testing is done in conformance with all prescribedo&an(amds. The state may also conduct well testing, at their discretion.* * * * * * Both the Ranch and have existing water and sewer facilities that are adequate. Neither community is in a groundwater Iimited area nor is there a history of failing wells." None of these findings states or implies that new or expanded development of Widgi Creek as a "resort community" is limited by its master plan. To the oontrory, these findings make clear future development will be constrained by the RC designation and zoning and by the availability and adequacy of infrastructure. The Hearings Officer finds the lack of reference to the master plan in these findings is not inadvertent given the purpose of the unincorporated community rules to establish standards for development of what are essentially urban uses in rural areas. A resort community master plan could be inconsistent with those rules by, for example, permitting development of a type or density exceeding the capacity of available infrastructure, or falling outside the uses permitted in a "resort community." FinaUy, neither the RC Zone nor the resort community policies in Chapter 4.8 of the comprehensive plan, discussed in detail in the findings be|ovv, makes reference to the Widgi Creek master plan. Rather, they identify permitted uses and limitations thereon solely by reference to the RC Zone and OAR Chapter 660-022. For example, Plan Policy 4.8.27 for Resort Communities states new uses and expansion of existing uses in Widgi Creek that require land use approval "shall be approved only upon confirmation from the City of Bend that sewer service can be provided." For the foregoing reasons, the Hearings Officer finds there is nothing in the county's 2001 adoption of a Goal 4 exception or RC designation and zoning for Widgi Creek that identifies the Widgi Creek master plan as applicable to Widgi Creek development. To the contrary, the board's findings in support of the exception and rezoning overwhelmingly support the conclusion that the board intended the RC Zone to govern such development. b. Section 18.110.020. Seventh Mountain/Widgi Creek and Black Butte Ranch Resort Districts. A. Uses permitted outright. The following uses and their accessory uses are permitted subject to the applicable provisions of DCC 18.110.050: 1. Single-family dwelling. FINDINGS: The applicant proposes to develop a nine -lot zero -lot -line subdivision with single- family dwellings which are permitted outright in the RC Zone. As discussed below, zero -lot -line subdivisions for single-family dwellings are permitted outright under Section 18.110.060(J).4 c. Section 18.110.060, Development Standards A. Setbacks. 1. Single -Family Dwelling. The following setbacks shall be maintained for single-family dwellings and accessory uses on residential parcels: * * * B. Other Setbacks. The following setbacks shall be maintained for buildings and structures, based on the applicable provision(s) of DCC Title 18: 1. Solar Setback. The setback from the north lot line shall meet the solar access setback requirements in DCC 18.116.180 for south roof protection. FINDINGS: As discussed in the findings below, under Section 18.110.060(J)(2) the proposed dwellings on zero -lot -line subdivision lots are not subject to the front, side and rear year setbacks, or the solar setback, and therefore the standards in these paragraphs do not apply. 2. Waterway Setback. All structures, buildings or similar permanent fixtures shall be set back from the ordinary high water mark along all streams and lakes a minimum of 100 feet measured at right angles to the ordinary high water mark. FINDINGS: The record indicates the proposed homesites would be at least 1,500 feet from ordinary high water mark of the Deschutes River, therefore satisfying this criterion. 4 The staff report questions whether the six proposed off-site parking spaces would be a permitted use in the RC Zone. However, as discussed above, the applicant withdrew its request for these parking spaces. 3. Building Code Setbacks. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or Deschutes County under DCC 15.04 shall be met. FINDINGS: The Building Division did not identify any additional building code setbacks. 4. Rimrock Setbacks. Setbacks from rimrocks shall be maintained as provided in DCC 18.84 or DCC 18.116.160, whichever is applicable. FINDINGS: The Hearings Officer finds this criterion is not applicable because the record indicates there is no rimrock as defined in Section 18.04.030 on or adjacent to the subject property. 5. Scenic Waterway. The applicable provisions in DCC 18.84 shall be met. FINDINGS: The record indicates the proposed homesites are located outside of the scenic waterway corridor associated with the Deschutes River. 6. Floodplain. The applicable provisions in DCC 18.96 shall be met. FINDINGS: The record indicates the proposed subdivision is not located in a floodplain. C. Building Height. Resort Facility and Resort Utility Building. No resort facility or resort utility building or structure shall be erected or enlarged to exceed 40 feet, or 30 feet when the provisions in DCC 18.84.080 are applicable, unless a variance for a greater height is approved. For the purposes of DCC 18.110.060(C)(1) an application for a height variance may be granted provided the Planning Director or Hearings Body makes only the following findings: FINDINGS: The subject property and the proposed subdivision are located within the LM Zone associated with the Cascade Lakes Highway and therefore the design review standards in Section 18.84.080 area applicable. The applicant submitted an application for LM site plan review. The applicant's burden of proof states the proposed dwellings will not exceed 30 feet in height from natural grade. The Hearings Officer recommends that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring compliance with the 30 -foot height limit. 2. All Other Buildings. No building or structure used for purposes other than a resort facility or resort utility, including a single-family dwelling, shall be erected or enlarged to exceed 30 feet in height, except as provided by DCC 18.120.040. FINDINGS: The applicant does not propose any buildings or structures other than the dwellings, and therefore this criterion is not applicable. 3. Scenic Waterway. The applicable provisions in DCC 18.84 shall be met. FINDINGS: The proposed homesites are located outside of the scenic waterway corridor associated with the Deschutes River. D. Lot Coverage. Single-family dwelling. The maximum lot coverage by a single-family dwelling and accessory structures shall be 40 percent of the total lot. FINDINGS: As discussed below, under Section 18.110.060(J)(2) zero -lot -line lots are not subject to these lot coverage standards. 2. All Other Buildings. The maximum lot coverage by buildings and structures used for purposes other than a single-family dwelling shall be determined by the spatial requirements for yard setbacks, landscaping, parking and utilities. FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant does not propose any buildings other than single-family dwellings. E. Off -Street Parking and Loading. Single -Family Dwelling. Off-street parking shall be provided for a minimum of two motor vehicles per dwelling. 2. All Other Uses. Off-street parking and loading shall be provided subject to the requirements of DCC 18.116. FINDINGS: The applicant's submitted site plan shows each of the nine proposed dwellings will have a two -car garage as well as a 20 -foot -long driveway providing sufficient space for two more parking spaces, for a total of four off-street parking spaces for each dwelling. Therefore, the Hearings Officer finds the applicant's proposal satisfies this criterion. No other uses are proposed for the lots. F. Outdoor Lighting. All outdoor lighting shall be installed in conformance with DCC 15.10. FINDINGS: The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to install any outdoor lighting in conformance with the county's outdoor lighting standards in Chapter 15.10 of the Deschutes County Code. G. Excavation, Grading and Fill and Removal. Excavation, grading and fill and removal within the bed and banks of a stream or lake, or in a wetland shall be subject to DCC 18.128.040(W), unless the activity meets the exception provisions in DCC 18.120.050. FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant does not propose excavation, grading or fill and removal within the bed and banks of a stream or lake or in a wetland. H. Signs. All signs shall be constructed in accordance with the provisions of DCC 15.08. FINDINGS: The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring installation of any signs in conformance with the sign regulations in Chapter 15.08 of the Deschutes County Code. 1. Lot Requirements. Single -Family Dwelling. A new lot for a single-family dwelling served by a community or public sewerage system shall have a minimum area of 6,000 square feet and a minimum average width of 60 feet, except that a corner lot shall have a minimum average width of 70 feet. A new lot for a single-family dwelling served by an on-site septic system shall have a minimum area of 22,000 square feet and a minimum average width of 100 feet. Any new residential lot shall have a minimum width at the street of 50 feet, except for a lot on a cul- de-sac, in which case the minimum width shall be 30 feet. FINDINGS: As discussed below, under Section 18.110.060(J)(2) the proposed zero -lot -line subdivision is not subject to the lot requirements in this subsection. 2. All Other Uses. Every lot created for purposes other than residential use shall have dimensions for lot area, width and depth necessary for yard setbacks, landscaping, parking and utilities for the proposed use. FINDINGS: The Hearings Officer finds this criterion is not applicable because the proposed subdivision does not include anything other than residential uses. J. Land Divisions General. Notwithstanding any provision to the contrary contained herein or in other parts of the County Code, roads within the Resort Community Zone may be private roads and new lots or parcels may be created that have access from, and frontage on, private roads only. These roads must meet the private road standards of DCC Title 17, and are not subject to public road standards of DCC Title 17. An agreement acceptable to the County Road Department and County Legal Counsel shall be required for the maintenance of new private roads. FINDINGS: The proposed subdivision lots would have access from Seventh Mountain Drive, a private road within the Widgi Creek development. No new private roads are proposed. Compliance with the private road standards in Title 17 is discussed in the findings below. 2. Zero Lot Line Subdivision. Notwithstanding any provision to the contrary contained herein, zero lot line subdivisions for single-family residences shall be allowed in the Resort Community Zone in accordance with the provisions of DCC Chapter 17.20. Zero lot line subdivisions are not subject to the setback provisions of 18.110.060(A), solar setback standards of 18.110.060(B)(1), lot coverage provisions of 18.110.060(D) or lot requirements of 18.110.060(1)(1). FINDINGS: The proposed zero -lot -line subdivision is not subject to the building setback, solar setback, or lot coverage requirements applicable to other subdivisions in the RC Zone. For the foregoing reasons, the Hearings Officer finds the applicant's proposal satisfies, or with imposition of the above-described recommended conditions of approval, will satisfy all applicable provisions of the RC Zone. COMPREHENSIVE PLAN C. Deschutes County Comprehensive Plan 1. Section 4.8, Resort Communities Background A Resort Community is characterized as an unincorporated community that was established primarily for, and continues to be used primarily for, recreation and resort purposes (OAR 660-022-0010(6). It includes residential and commercial uses and provides for both temporary and permanent residential occupancy, including overnight lodging and accommodations. * * * Inn of the Seventh Mountain/Widgi Creek * * * Land Use The Inn of the Seventh Mountain/Widgi Creek community boundary includes 260 acres (23 for the Inn and 237 for Widgi Creek). The property is used for recreational amenities, rental and residential units. The western boundary is Century Drive. The southern boundary is generally the Deschutes River Canyon. The entire resort community is bordered by the Deschutes National Forest. The predominant land use at the Inn is resort use with overnight lodging and recreation facilities for tourists, in addition to a restaurant, meeting rooms and a retail/rental sport shop. The predominant land use for Widgi Creek is residential, with single- family residential development and condominium units, in addition to a golf course. Fire and sewer services are currently provided by the City of Bend, with water service provided by on-site well. Utility services will continue to be provided in the current manner. * * * 2. Section 4.8, Resort Community Policies General Resort Community Policies Policy 4.8.1 Land use regulations shall conform to the requirements of OAR 660 Division 22 or any successor. Policy 4.8.2 Designated open space and common area, unless otherwise zoned for development, shall remain undeveloped except for community amenities such as bike and pedestrian paths, park and picnic areas. Areas developed as golf courses shall remain available for that purpose or for open space/recreation uses. Policy 4.8.4 Residential minimum lot sizes and densities shall be determined by the capacity of the water and sewer facilities to accommodate existing and future development and growth. * ** Inn of the Seventh Mountain/Widgi Creek Public Facility Policies * ** Policy 4.8.27 New uses or expansion of existing uses that require land use approval shall be approved only upon confirmation from the City of Bend that sewer service can be provided. (Emphasis added.) FINDINGS: Opponents argue the above -underscored language in Policy 4.8.2 prohibits the applicant's proposed 9 -lot, zero -lot -line subdivision because it would be located on an area "developed as" the Widgi Creek golf course and therefore it must "remain available for that purpose or for open space/recreation uses." The applicant responds that the proposed subdivision site is not, and never has been, "developed as golf course" and therefore this policy is not applicable. The Hearings Officer finds that in order to resolve this dispute I must determine: (1) whether this plan policy constitutes an approval criterion for development in Widgi Creek; and (2) whether the proposed subdivision site can be considered "developed as golf course." Each of these issues is addressed in the findings below. 1. Policies as Approval Criteria. In Save Our Skyline v. City of Bend, 48 Or LUBA 192 (2004), LUBA held a comprehensive plan is a "potential" source of approval standards for quasi-judicial land use permit applications. LUBA described the proper analysis of the effect of plan provisions as follows: "Local governments and this Board have frequently considered the text and context of cited parts of comprehensive plans and concluded that the alleged comprehensive plan standard was not an applicable approval standard. Stewart v. City of Brookings, 31 Or LUBA 325, 328 (1996); Friends of Indian Ford v. Deschutes County, 31 Or LUBA 248 258 (1996); Wissusik v. Yamhill County, 20 Or LUBA 246, 254-55 (1990). Even if the comprehensive plan includes provisions that can operate as approval standards, those standards are not necessarily relevant to all quasi-judicial land use permit applications. Bennett v. City of Dallas, 17 Or LUBA at 456. Moreover, even if a plan provision is a relevant standard that must be considered, the plan provision might not constitute a separate mandatory approval criterion, in the sense that it must be separately satisfied, along with any other mandatory approval criteria, before the application can be approved. Instead, that plan provision, even if it constitutes a relevant standard, may represent a required consideration that must be balanced with other relevant considerations. See Waker Associates, Inc. v. Clackamas County, 111 Or App 189, 194, 826 P2d 20 (1992) Ca balancing process that takes account of relative impacts of particular uses on particular [comprehensive plan] goals and of the logical relevancy of particular goals to particular uses is a decisional necessity). Before considering whether particular plan provisions must be applied as approval standards when considering individual land use permit applications, it is appropriate, as the hearings officer did in this case, to consider first whether the comprehensive plan itself expressly assigns a particular role to some or all of the plan's goals and policies. Downtown Comm. Assoc. v. City of Portland, 80 Or App 336, 339, 722 P2d 1258 (1986); Eskadarian v. City of Portland, 26 Or LUBA 98, 103 (1993); Schellenberg v. Polk County, 21 Or LUBA 425, 429 (1991); Miller v. City of Ashland, 17 Or LUBA 147, 167-69 (1988). We review the hearings officer interpretation of the BAGP [Bend Area General Plan] to determine if her interpretation is correct. McCoy v. Linn County, 90 Or App 271, 275-76, 752 P2d 323 (1988)." The Hearings Officer most recently addressed the issue of application of plan policies to a quasi-judicial land use application in my decision in Leading Edge Aviation (A-13-4, SP -13-7), on remand from LUBA. In that case, I found nothing in the county's comprehensive plan, plan policies, Transportation System Plan (TSP), Bend Airport Master Plan (AMP), or Bend Airport Layout Plan (ALP) constituted an applicable approval standard for the applicant's proposed site plan for development at the Bend Airport. I made the following relevant findings: "In Bothman v. City of Eugene, 51 Or LUBA 426 (2006), LUBA was asked to consider the effect on a zone change application of a geographically -specific 'area plan' adopted as part of the city's comprehensive plan. The area plan language stated its policies were 'guidesfor land use actions within the area subject to the plan, required the city to 'recognize' existing uses in the area, and 'discouraged' the city from rezoning the subject property. LUBA held that although this area plan did not expressly prohibit rezoning the subject property and was not couched in absolute terms, it nevertheless expressed a strong policy preference that the subject property retain its existing zoning. LUBA held that 'read in context the policy clearly mandates that the city be guided by -- at a minimum, consider -- that preference in the context of an application to rezone the subject property.' LUBA remanded for the city to reconsider its rezoning decision in light of this policy. Based on LUBA 's direction on remand, as well as the analysis in Save Our Skyline, the Hearings Officer finds I must examine the text and context of the comprehensive plan, TSP, AMP and ALP to determine if any provisions therein prohibit the siting of the applicant's fueling station on the subject property. And because the Bend Airport AMP and ALP are, like the area plan in Bothman, geographic- and site-specific plans adopted as part of the comprehensive plan, I must also determine whether and to what extent these plans are to be considered and balanced with other policy considerations in evaluating the applicant's site plan application." In Leading Edge, the Hearings Officer reviewed the comprehensive plan and found numerous statements therein indicating the plan was not intended to establish approval criteria for the applicant's quasi-judicial land use application. Based on the Hearings Officer's Leading Edge decision and the cases cited therein, I find my analysis of the plan policies at issue here must begin with an examination of the comprehensive plan text to determine whether the plan itself expressly assigns a particular role to some or all of the plan's policies. The preamble of the comprehensive plan includes the following language: The Deschutes County Comprehensive Plan is a statement of issues, goals and policies meant to guide the future of land use in this County. This Comprehensive Plan is intended to recognize the expectations and rights of property owners and the community as a whole. Use of this Plan The Comprehensive Plan is a tool for addressina chanainq conditions, markets and technoloaies. It can be used in multiple ways, including: * * * To (wide public decisions on land use policy when developing land use codes, such as zoning or land divisions. * * * This Plan does not prioritize one goal or policy over another. Implementation of this plan requires flexibility because the weight given to the goals and policies will vary based on the issue being addressed. The Plan is not intended to be used to evaluate specific development proiects. Instead, the Plan is a 20-vear blueprint to guide growth and development. (Emphasis added.) The preamble describes plan policies as follows: Policies: Statements of principles and guidelines to aid decision making by clarifying and providing direction on meeting the Goals. (Emphasis added.) Thus, the comprehensive plan appears to contemplate that plan policies will serve only as guidelines. However, the plan policies themselves, and particularly Policy 4.8.2, are written in mandatory language that strongly suggests they were not intended to be mere "guidelines." In Bothman, cited above, LUBA held the city erred in not "considering" a geographically -specific plan policy stating the city should "recognize" an area's existing zoning and "discourage" its rezoning. LUBA stated the policy was relevant to the proposed rezoning because it expressed a "strong preference" for the area's existing zoning. In contrast, Policy 4.8.2 states areas in Widgi Creek developed as golf courses "shall" remain available for that purpose or for open space/recreation uses. The Hearings Officer finds this language clearly expresses more than a "preference" for golf course, open space or recreational development. Moreover, the context of this policy — i.e., the county's 2001 adoption of a "physically developed" Goal 4 exception and RC designation and zoning for Widgi Creek — explains this mandatory language. As discussed in the findings above, both the goal exception and the redesignation and rezoning were intended to authorize continuation of the existing resort which was a nonconforming use in the Forest Zone, while also limiting uses in accordance with the unincorporated communities administrative rules. In other words, the board did not want Widgi Creek to be redeveloped as a large urban -density residential subdivision located miles from the Bend urban growth boundary. For the foregoing reasons, the Hearings Officer finds Policy 4.8.2 establishes a mandatory approval criterion for Widgi Creek development. 2. Areas "Developed As Golf Courses." The proposed subdivision site is located between Seventh Mountain Drive and the north side of the first fairway of the Widgi Creek Golf Course. The record indicates, and the Hearings Officer's site visit observations confirmed, that between the road and the fairway are scattered trees and native brush and grasses, mowed lawn areas, a paved golf cart path, and a community mailbox site and associated off-street parking area. The proposed site also is located outside the white out-of-bounds markers for the first fairway. However, the record indicates that was not always the case. The parties agree that prior to 2009 there were no out-of-bounds stakes at or near the north side of the first fairway.5 The parties 5 The parties also disagree as to the applicant's purpose in setting the out of bounds stakes in 2009. Mr. Hudspeth testified the property owner placed the out of bounds stakes in their present locations after consultation with the OGA and in order to increase the pace of play. However, in an e-mail message dated January 8, 2015, attached to the HOA's January 20, 2015 submission, Gretchen Yoder of the OGA disagree as to the location of the out of bounds area prior to 2009, and its significance in determining whether Policy 4.8.2 applies to the proposed subdivision site. The Hearings Officer finds the location of the out of bounds area prior to 2009 is relevant because Policy 4.8.2, adopted in 2001, states areas developed as golf courses shall "remain" available for that purpose or for open space/recreation uses. The ordinary definition of "remain" is "to continue; to remain standing, endure, outlast." Webster's New World Dictionary and Thesaurus, Second Edition. Based on this definition, and in the context of Policy 4.8.2 discussed above, I find the term "remain available" means Policy 4.8.2 was intended to maintain the status quo as of 2001. Therefore, I must determine whether the proposed subdivision site was "developed as golf course" in 2001. Section 18.04.030 defines "golf course" in relevant part as follows: "Golf course" means an area of land with highly maintained natural turf laid out for the game of golf with a series of nine or more holes, each including a tee, a fairway, a putting preen and often one or more natural or artificial hazards. A "golf course" may be a nine or 18 -hole regulation golf course or a combination of nine and 18 hole regulation golf course consistent with the following: * * * (Emphasis added.) Based on the Hearings Officer's site visit observations, I find the proposed subdivision site does not contain any of the golf course features listed in this definition. And the record indicates the physical characteristics of the site have not changed in any meaningful way since 2001. However, I find the site nevertheless may have been "developed as golf course" in 2001 based on its location relative to the out of bounds for the first fairway. The term "out of bounds" is not defined in Section 18.04.030 or elsewhere in Title 18. The Hearings Officer understands that in the context of the rules of golf, the term refers to areas that are beyond the boundaries of the developed golf course, and from which a player may hit a ball but must take a one stroke penalty. I also understand that out of bounds areas are set by the governing body of the golf course and may be marked by reference to stakes, other physical features, or a line on the ground.6 Therefore, I find that out of bounds areas are not part of a "golf course" as defined in Title 18, but delineate the outer boundary of the golf course. The parties disagree about the location of the first fairway out of bounds areas prior to placement of the existing out of bounds stakes in 2009. The applicant's final argument states in relevant part: "The area between fairway one all the way to the road was played and treated as out of bounds until the out of bounds markers were installed 5-6 years ago. The out of bounds markers were not moved. They were installed for the first time on disavowed any knowledge of discussions between the OGA and Widgi Creek about placement of out of bounds states. She went on to state: "OGA typically will not tell a course where to place their Out of Bounds (OB) stakes. We suggest that they be on the edge of property lines. Occasionally there will be a valid reason for on -course Out of Bounds. But that is a case by case discussion." 6 See, United States Golf Association (USGA) Rules and Decisions, 2012-2015. this hole and were installed and/or moved on eight otheholes, upon consultation with the (]GA [Oregon Golf Association], to increase pace of play and achieve uniformity of widths on the course."(Emphasis added.) Opponents counter that prior to placement of the current out-of-bounds stakes for the first fairway in 2009. the out of bounds line was the south edge of Seventh Mountain Drive. Opponents rely primarily on Hearing Exhibit 3, a copy of the undated "Widgi Creek Golf Club Yardage Book" published by "The Staff of Widgi Creek Golf Club." ("yardage book"). The yardage book includes: (a) a color diagram of the entire golf course with residential lots; and (b) a diagram for each of the eighteen holes showing the tees, fairway and green, and yardage calculations from different tees to Iandmarks along the fairway and green. The diagrams appear to include most if not all of the proposed subdivision site as part of Hole #1. The yardage book also provides "Local Rules" for golfers which include the foliowing: "Out of bounds consists of any inside roads and white stakes surrounding the outer perimeter." The Hearings Officer finds that because Seventh Mountain Drive is a private road located entirely within Widgi Cregk, it constitutes an "inside road" for purposes of this rule. The record indicates there were no "white atakea" on the proposed subdivision site prior to 2009. In his written tmsUrnnny, included in the record as Attachment PH -15 to the applicant's January 20, 2015 submission, Brad Hudnpeth, General Manager of Widgi Creek Golf Course since 2005, stated that prior to 2009 "there were never any out of bounds markers on Hole #1 in the area of the proposed development." | find from this evidence that prior to the owner's placement of the out of bounds stakes in 2009. the out of bounds area for the first fairway extended to the southern edge of Seventh Mountain [}rive, and therefore the proposed subdivision site was not out of bounds in 2001 when Policy 4.8.2 was adopted.' The remaining question is whether the 2001 location of the first fairway out of bounds area on the south side of Seventh Mountain Drive made the proposed subdivision site "developed as golf course" in 2001. Again, the parties disagree as to whether the proposed site was part of the golf course before placement of the out of bounds stakes. In his written testimony, Brad Hudspeth stated that "during his tenure" the proposed subdivision site never was "developed as golf course."8 In response, opponent David Black, a Widgi Creek resident since 2001. stated in a letter dated January 7, 2015, that the proposed subdivision site was"previously mowed and 'in play' all the way to the Seventh Mountain Road that parallels the 1st hole fairway." The Hearings Officer finds Mr. Black's testimony is somewhat ambiguous in describing the proposed subdivision site as "in play" and therefore part of the golf course since, as discussed above, golfers may play a b@|| that lands out of bounds. | also agree with the applicant that mere / The applicant included as attachment PH -19 to its January 27, 2015 submission a copy of what the applicant describes as the "current course guide for Hole #1." This document consists of a diagram of Hole 1 and depicts the hole as much narrower than it is shown in the yardage book, apparently reflecting the location of the out of bounds stakes placed in 2000. However, as discussed above, the Hearings Officer has found the current out of bounds location is not relevant to the question of what the board considered to be the developed golf course in 2001. «|nherfina|argumant.theopp|ioant'aaUorneyTiaLovvaatahmdUlatK8r.HudopethbenUfeddhepnopoaed subdivision site "has never been developed as part of the course." The Hearings Officer finds that is an overstatement as Mr. Hudspeth stated his knowledge only goes back to 2005 when he became general manager of the golf course. mowing of the propose subdivision site does not mean it was part of the golf course inasmuch as Widgi Creek includes many open space and common areas that also are mowed. In his written testimony, Mr. Black also stated: "The proposed building site on fairway #1 was part of the original golf course. When out of bounds stakes are moved, it does not create a void. The area is either golf course or open space. If out of bounds stakes are moved to facilitate approval of townhomes, per the applicant's request, this creates a void — a space that is neither golf course nor open space and thus subject to no land use rules or requirements." The Hearings Officer finds this statement expresses the essential question posed by the applicant's proposal under Policy 4.8.2 — i.e., in what category of land is the proposed subdivision site? This issue also was raised by opponents to the Points West Subdivision approved by Hearings Officer Briggs in 2006. The applicant's final argument states Hearings Officer Briggs found Policy 4.8.2 allows "undeveloped" portions of golf courses to be developed with residential uses. I find Hearings Officer Briggs' decision does not support the applicant's proposal in this case. The decision states in relevant part: "The question that must be answered is whether land that is not clearly developed for golf course uses or depicted as open space in the comprehensive plan or on approved developed documents is nevertheless either `designated open space(.] * * * common area' or `developed as a golf course' for the purposes of this policy. * * * With respect to the argument that other undeveloped areas included in the tax lot that comprises the golf course are part of the developed area of the golf course and must be retained for that use, the question is harder to resolve. As the neighbors note, areas that are rough or natural can be part of a golf course. even if they are not developed in the sense that they are manicured or paved. Here, the applicant submitted testimony from the Widgi golf course pro that not all of the natural areas are marked with 'out of bounds' signs that distinguish between the golf course proper and other areas. He testified that none of the course's rough areas extended to the subject property. The findings adopted by the Board of County Commissioners in support of the amendments regarding the Inn/Widgi Creek resort community contemplate additional residential development within the area of the subject property, specifically 8-9 acres near the rim rock and the former Inn sewage treatment facilities. Those areas appear to be included within the subject property's boundaries. Therefore, it is not inconceivable that areas the neighbors assumed would remain undeveloped would be built upon at some point. Here, the evidence supports a finding that only those areas that were specifically identified as open space or common area on the Widgi Creek plat are subject to that portion of the policy. The subject property does not include any areas subject to those designations. In addition, the language of the policy, which requires that `developed golf courses' be retained, implies that undeveloped portions of golf courses may, in some circumstances, be developed. Here, the applicant presented evidence that the 'out of bounds' markers form the boundary between the `developed golf course' and other areas. That evidence is substantial evidence to support a finding that the proposed development is consistent with this policy."(Emphasis added.) The above -underscored language indicates Hearings Officer BignconSidered "developed golf course" could include roughs and other non -manicured areas, and that the boundary between the "developed golf course" and other (potentially developable) areas was the out of bounds markers. This Hearings Officer has found from the record in this case that in 2001 the out of bounds for the first fairway was Seventh Mountain Drive. Therefore, consistent with Hearings Officer Briggs' analysis, | have found the proposed subdivision site -- which includes both mowed and "rough" or natural areas -- was within the "developed golf course" in 2001 and therefore falls within the restriction of Policy 4.8.2. The applicant argues the ownr of the golf course has the rightb}modify the course in any way it sees fit, such as moving the out of bounds location, and thereby may create land that falls outside Policy 4.82 and developable with residential uses. The Hearings Officer disagrees. The policy was adopted in 2001 to implement the county's adoption of a "physically developed" exception to Goal 4, and to adopt and implement a "resort community" plan designation and zoning, for Widgi Creek. As discussed above, the county made the following relevant findings concerning the status of Widgi Creek in 2001: "A small 1.2 -acre area formerly used for on-site sewage treatment, located near the boundary with Widgi Creek to the east, might be redeveloped some day for resort uses, but no plans exist as of now for this to occur. This area is surrounded by resort development and could only be redeveloped in the future for resort purposes. A second area on the property, approximately 13 acres in size, of which only about 8-9 acres is usable due to steep slopes down to the Deschutes River, could possibly be developed in the future for resort facilities such as a lodge, single-family or multi -family dwellings, or conference center. * * * Widgi Creek was approved in 1983 as a resort including 107 homes, 103 townhouses, a regulation golf course and appurtenant golf facilities, including clubhouse, driving range and maintenance facilities. The physical developments at Widgi Creek encompass 237 acres and are shown on Figures 5 and 6 (an aerial photograph). The layout for town homes, known as Elkai Woods, is depicted on Figure 6." The board found that as of 2001 the Widgi Creek development consisted of a residential component (approval for 107 single-family dwellings and 103 townhouses), a resort component (regulation golf course and appurtenant facilities, c|ubhouse, and tennis nourta), common areas and open epace, and infrastructure including moada, pathvvaya, and sewer and water facilities. These approvals and facilities were the basis of the county's determination that Widgi Creek qualified for a "physically developed" exception and was "for all practical purposes built out." The board also found Widgi Creek included two specific areas that were not physically developed or built out, and identified them as available for potential future dgve|opnnent, and those areas were approved for development of the Points West and Mile Post One Subdivisions. Fina||y, the board incorporated the aerial photos and diagrams attached to Ordinance Nos. 2001-047 and 2001-048 as Figures 3, 5, 6 and 7 showing Widgi Creek and Elkai Woods as they existed and/or were approved in 2001. Figures 5 and 6 show the location and layout of the approved residential lots in Widgi Creek, as well as the Widgi Creek Golf Course and appurtenant facilities, the clubhouse and tennis courts, and the private roads. Based on the board's goal exception and RC Zone findings and supporting documents, the Hearings Officer finds that with the exception of the developable 8-9 acres identified in the board's findings, the board concluded the approvals and developed elements of Widgi Creek that existed in 2001 constituted the status quo that Policy 4.8.2 was intended to preserve. And I find the board intended residential development of the 8-9 acres would be governed by the RC Zone and by plan Policy 4.8.4 which states: Residential minimum lot sizes and densities shall be determined by the capacity of the water and sewer facilities to accommodate existing and future development and growth. Based on the foregoing analysis, the Hearings Officer finds that when Policy 4.8.2 was adopted in 2001, the board intended it to assure all Widgi Creek areas that were "physically developed" — everything except the two identified undeveloped areas — would continue in their then -current uses or would be developed with "community amenities" or "open space/recreation uses." I find that because the proposed subdivision site was not identified as within the 8-9 developable acres in Widgi Creek, the site was "developed as golf course," "open space" or "common area" and therefore subject to Policy 4.8.2. I find it is most likely the board considered the proposed subdivision site to be part of the developed golf course in 2001 considering the site's location and the fact that it looks like all of the other vegetated land within and surrounding the golf course tees, fairways and greens on the aforementioned aerial photos and diagrams of Widgi Creek attached to Ordinance Nos. 2001-047 and 2001-048. Because the Hearings Officer finds the proposed subdivision site is subject to Policy 4.8.2 as property "developed as golf course" in 2001, I find I cannot approve the proposed residential subdivision. However, because I anticipate this decision will be appealed to the board and the board may elect to hear the appeal, to assist the board and county staff I have included in this decision findings concerning the proposal's compliance with applicable provisions of the comprehensive plan and Titles 17 and 18, as well as recommended conditions of approval. LANDSCAPE MANAGEMENT ZONE STANDARDS 2. Chapter 18.84, Landscape Management Combining Zone (LM) a. Section 18.84.020, Application of Provisions The provisions of DCC 18.84 shall apply to all areas within one- fourth mile of roads identified as landscape management corridors in the Comprehensive Plan and the County Zoning Map. The provisions of DCC 18.84 shall also apply to all areas within the boundaries of a State scenic waterway or Federal wild and scenic river corridor and all areas within 660 feet of rivers and streams otherwise identified as landscape management corridors in the Comprehensive Plan and the County Zoning Map. This distance specified above shall be measured horizontally from the centerline of designated landscape management roadways or from the nearest ordinary high water mark of a designated landscape management river or stream. The limitations in DCC 18.84.020 shall not unduly restrict accepted agricultural practices. FINDINGS: The proposed subdivision lots would be located within the landscape management corridor for the Cascade Lakes Highway, and therefore the LM Zone applies to the applicant's proposal. b. Section 18.84.030, Uses Permitted Outright Uses permitted in the underlying zone with which the LM Zone is combined shall be permitted in the LM Zone, subject to the provisions in DCC 18.84. FINDINGS: Single-family dwellings are permitted outright in the SMWCR Zone, and therefore also are permitted outright in the LM Zone. c. Section 18.84.050, Use Limitations A. Any new structure or substantial alteration of a structure requiring a building permit, or an agricultural structure, within an LM Zone shall obtain site plan approval in accordance with DCC 18.84 prior to construction. As used in DCC 18.84 substantial alteration consists of an alteration which exceeds 25 percent in the size or 25 percent of the assessed value of the structure. B. Structures which are not visible from the designated roadway, river or stream and which are assured of remaining not visible because of vegetation, topography or existing development are exempt from the provisions of DCC 18.84.080 (Design Review Standards) and DCC 18.84.090 (Setbacks). An applicant for site plan review in the LM Zone shall conform with the provisions of DCC 18.84, or may submit evidence that the proposed structure will not be visible from the designated road, river or stream. Structures not visible from the designated road, river or stream must meet setback standards of the underlying zone. FINDINGS: The applicant's proposal includes new single-family dwellings. The staff report states, and the Hearings Officer's site visit observations confirmed, that at least some of the proposed dwellings will be visible from Cascade Lakes Highway. Therefore, I find the LM Zone design review standards are applicable to the applicant's proposal. d. Section 18.84.080, Design Review Standards The following standards will be used to evaluate the proposed site plan: A. Except as necessary for construction of access roads, building pads, septic drainfields, public utility easements, parking areas, etc., the existing tree and shrub cover screening the development from the designated road, river or stream shall be retained. This provision does not prohibit maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act, or agricultural use of the land. FINDINGS: The applicant's burden of proof states with respect to this criterion: "As shown on the attached Tentative Plan and Site Plan sheets, the lot configuration and building footprint has been designed to preserve as many trees as practicable. Those which are directly impacted by development will be removed and replaced with a similar species elsewhere in the development. Those trees which will remain in place will be protected during the construction process. Visibility from Century Drive will be minimal. The project is located over 450 feet from Century Drive and is screened by substantial vegetation. There are large stands of mature ponderosas and junipers along the roadway and several landscaped berms between the roadway and the Widgi Creek golf course. At the southern edge of the fairway, there are additional stands of mature ponderosas and junipers between the golf course and the subject property. Except as necessary for the construction infrastructure and building pads, the Applicant intends to retain all tree and shrub cover screening the development from Century Drive." Opponents expressed concern that because of the property owner's previous tree removal from areas between the proposed subdivision site and Cascade Lakes Highway, the proposed dwellings will be much more visible from the highway than they might have before the trees were removed. However, the Hearings Officer finds this criterion does not address the adequacy of screening from off-site trees and vegetation. Rather, it focuses on the removal and retention of trees on the subject site. I further find that because of the nature and density of the proposed dwellings, the majority of trees on the proposed subdivision site will have to be removed. The staff report states, and I agree, that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of any approval requiring that all trees and shrubs not required to be removed for construction shall be retained and protected to provide as much screening of the dwellings as possible from the highway. B. It is recommended that new structures and additions to existing structures be finished in muted earth tones that blend with and reduce contrast with the surrounding vegetation and landscape of the building site. C. No large areas, including roofs, shall be finished with white, bright or reflective materials. Metal roofing material is permitted if it is non -reflective and of a color which blends with the surrounding vegetation and landscape. This subsection shall not apply to attached additions to structures lawfully in existence on April 8, 1992, unless substantial improvement to the roof of the existing structure occurs. FINDINGS: The record includes both paint/finish samples and color samples shown on the printed building elevation drawings submitted by the applicant. However, the staff report states, and the Hearings Officer agrees, that there is a difference between these two sets of color samples. For this reason, I find that if this proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to submit to the Planning Division true color samples of the finish and roofing prior to issuance of any building permits. I further find the submitted color samples must be muted earth tones (e.g., browns, greens, or grays) that blend and reduce contrast with the surrounding vegetation and landscape of the building site. Finally, I recommend that any approval be subject to a condition of approval prohibiting large areas, including roofs, from being finished with white, bright or reflective materials, or with reflective metal roofing material. D. Subject to applicable rimrock setback requirements or rimrock setback exception standards in Section 18.84.090, all structures shall be sited to take advantage of existing vegetation, trees and topographic features in order to reduce visual impact as seen from the designated road, river or stream. FINDINGS: The Hearings Officer finds this criterion is not applicable because there is no rimrock on or adjacent to the proposed subdivision site, and due to distance and topography none of the proposed dwellings would be visible from the Deschutes River. I find the proposed lots have been sited on the subject site in the only possible way that will allow nine zero -lot -line lots and townhome dwellings, and not to take advantage of available existing vegetation and trees to reduce visual impact as seen from the highway. However, given the site's location on the main entry road to Widgi Creek, I find there is no alternative siting of the proposed subdivision lots that would provide significant advantages over the proposed site with regard to existing screening from Cascade Lakes Highway. E. Structures shall not exceed 30 feet in height measured from the natural grade on the side(s) facing the road, river or stream. Within the LM zone along a state scenic waterway or federal wild and scenic river, the height of a structure shall include chimneys, antennas, flag poles or other projections from the roof of the structure. This section shall not apply to agricultural structures located at least 50 feet from a rimrock. FINDINGS: The applicant's burden of proof states the proposed dwellings would not exceed 30 feet in height as measured from the natural grade on the side facing Cascade Lakes Highway. As discussed above, there is no rimrock on the subject property, and no dwelling would be visible from the Deschutes River. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to condition of approval restricting the height of dwellings to 30 feet. F. New residential or commercial driveway access to designated landscape management roads shall be consolidated wherever possible. FINDINGS: The Hearings Officer finds this criterion is not applicable because no new access to Cascade Lakes Highway is proposed. G. New exterior lighting, including security lighting, shall be sited and shielded so that it is directed downward and is not directly visible from the designated road, river or stream. FINDINGS: The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to install any exterior lighting in compliance with the county's outdoor lighting ordinance, and shielded and directed downward so as not to be visible from Cascade Lakes Highway. H. The Planning Director or Hearings Body may require the establishment of introduced landscape material to screen the development, assure compatibility with existing vegetation, reduce glare, direct automobile and pedestrian circulation or enhance the overall appearance of the development while not interfering with the views of oncoming traffic at access points of views of mountains, forests and other open and scenic areas as seen from the designated landscape management road, river or stream. Use of native species shall be encouraged. FINDINGS: The Applicant has submitted a landscape plan as Sheet L01 of the tentative plan. The landscape plan proposes to preserve a few existing pine trees along the edges of the site, and to introduce landscaping along the street side of the proposed dwellings. Opponents argue, and the Hearings Officer agrees, the proposed landscape plan will not provide screening of the proposed dwellings from Cascade Lakes Highway. As discussed above, opponents noted the property owner previously removed some trees from the area between the highway and the proposed subdivision site, thus reducing the amount of available screening. However, at the public hearing, the Hearings Officer noted that my impression from my site visit was that the proposed subdivision site would have about the same amount of vegetative screening from the highway as currently exists between the highway and the closest single-family dwellings to the north on the west side of Golf Village Loop. Therefore, I find no reason to require additional screening vegetation to be planted. I. No signs or other forms of outdoor advertising that are visible from a designated landscape management river or stream shall be permitted. Property protection signs (no trespassing, no hunting, etc.) are permitted. FINDINGS: The applicant has not proposed any signs or other forms of outdoor advertising which would be visible from the Deschutes River, and therefore this criterion is not applicable. J. A conservation easement as defined in section 18.04.280 "Conservation Easement" and specified in section 18.116.220 shall be required as a condition of approval for all landscape management site plans involving property adjacent to the Deschutes River, Crooked River, Fall River, Little Deschutes River, Spring River, Squaw Creek and Tumalo Creek. Conservation easements required as a condition of landscape management site plans shall not require public access. FINDINGS: The Hearings Officer finds this criterion is not applicable because the proposed subdivision site is not adjacent to the Deschutes River. e. Section 18.84.090, Setbacks * * * B. Road Setbacks. All new structures or additions to existing structures on lots fronting a designated landscape management road shall be set back at least 100 feet from the edge of the designated road unless the Planning Director or Hearings Body finds that: FINDINGS: The applicant's submitted site plan shows all proposed structures are over 400 feet from Cascade Lakes Highway, therefore satisfying this criterion. C. River and Stream Setbacks. All new structures or additions to existing structures shall be set back 100 feet from the ordinary high water mark of designated streams and rivers or obtain a setback exception in accordance with DCC 18.120.030. For the purpose of DCC 18.84.090, decks are considered part of a structure and must conform with the setback requirement. FINDINGS: The applicant's submitted site plan shows all proposed dwellings would be at least 1,500 feet from the ordinary high water mark of the Deschutes River. The proposal does not include on-site sewage disposal. Therefore, the Hearings Officer finds the applicant's proposal satisfies this criterion. f. 18.84.095, Scenic Waterways Approval of all structures in a State Scenic Waterway shall be conditioned upon receipt of approval of the State Parks Department. FINDINGS: The Hearings Officer finds this criterion is not applicable because the proposed dwellings would not located in a State Scenic Waterway. For the foregoing reasons, and with imposition of the recommended conditions of approval, the Hearings Officer finds the applicant's proposal will satisfy all applicable LM Zone standards. SUPPLEMENTARY PROVISIONS 3. Chapter 18.116, Supplementary Provisions a. Section 18.116.030, Off -Street Parking and Loading A. Compliance. No building or other permit shall be issued until plans and evidence are presented to show how the off-street parking and loading requirements are to be met and that property is and will be available for exclusive use as off-street parking and loading. The subsequent use of the property for which the permit is issued shall be conditional upon the unqualified continuance and availability of the amount of parking and loading space required by this title. FINDINGS: The submitted site plan shows there is space on each proposed lot for at least four off-street parking places per dwelling, including two spaces within each garage and two spaces on the driveways. Therefore, the Hearings Officer finds the applicant's proposal satisfies the off- street parking requirements discussed below under Paragraph C of this section. B. Off -Street Loading. Every use for which a building is erected or structurally altered to the extent of increasing the floor area to equal a minimum floor area required to provide loading space and which will require the receipt or distribution of materials or merchandise by truck or similar vehicle, shall provide off-street loading space on the basis of minimum requirements as follows: FINDINGS: The Hearings Officer finds this criterion is not applicable because the proposed dwellings do not require a loading berth. C. Off-street parking. Off street parking spaces shall be provided and maintained as set forth in DCC 18.16.030 for all uses in all zoning districts. Such off-street parking spaces shall be provided at the time a new building is hereafter erected or enlarged or the use of a building on the effective date of DCC Title 18 is changed. D. Number of spaces required. Off-street parking shall be provided as follows: * * * Residential. Use One, two and three family dwellings Requirements 2 spaces per dwelling unit FINDINGS: The applicant proposes four off-street parking spaces for each dwelling, including two spaces in the garages and two spaces on the driveways, therefore satisfying this criterion. As noted above, the applicant originally proposed six additional off-street parking spaces on the opposite side of Seventh Mountain Drive but withdrew that part of its proposal. E. General Provisions. Off -Street Parking More Than One Use on One or More Parcels. In the event several uses occupy a single structure or parcel of land, the total requirement for off-street parking shall be the sum of requirements of the several uses computed separately. FINDINGS: The applicant proposes only a single residential use on each new residential lot. However, as discussed in the Findings of Fact above, the proposed subdivision site is part of two larger legal lots, including Legal Lot 2 on which the clubhouse and associated facilities are located. For this reason, the staff report recommends the applicant be required to account for all uses on both legal lots to assure compliance with this paragraph. In its January 20, 2015 submission, the applicant included a summary of development and copies of all subdivision plats for Seventh Mountain Golf Village, Elkai Woods Townhomes, and Widgi Creek, showing 107 lots for detached single-family dwellings, of which nine are vacant, and 86 platted townhome lots. However, the Hearings Officer finds this information is not responsive to staff's request for information about uses and parking requirements on the subject property. Therefore, I find that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to show all uses and existing off-site parking spaces on the two legal lots comprising the subject property, and the sum of all off-street parking requirements for those uses. 2. Joint Use of Facilities. The off-street parking requirements of two or more uses, structures or parcels of land may be satisfied by the same parking or loading space used jointly to the extent that it can be shown by the owners or operators of the uses, structures or parcels that their operations and parking needs do not overlap at any point of time. If the uses, structures or parcels are under separate ownership, the right to joint use of the parking space must be evidence by a deed, lease, contract or other appropriate written document to establish the joint use. FINDING: The Hearings Officer finds the applicant does not propose that the off-street parking spaces for the proposed dwellings would be used for additional uses, and therefore I find this criterion is not applicable. 3. Location of Parking Facilities. Off-street parking spaces for dwellings shall be located on the same lot with the dwelling. Other required parking spaces shall be located on the same parcel or another parcel not farther than 500 feet from the building or use they are intended to serve, measured in a straight line from the building in a commercial or industrial zone. Such parking shall be located in a safe and functional manner as determined during site plan approval. The burden of proving the existence of such off -premise parking arrangements rests upon the applicant. FINDINGS: The applicant's submitted site plan shows that all required off-street parking spaces would be located on each proposed residential lot, therefore satisfying this criterion. 4. Use of Parking Facilities. Required parking space shall be available for the parking of operable passenger automobiles of residents, customers, patrons and employees only and shall not be used for the storage of vehicles or materials or for the parking of trucks used in conducting the business or used in conducting the business or use. FINDINGS: The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring that parking spaces for the dwellings be available for the parking of operable passenger automobiles of residents only and shall not be used for the storage of vehicles or materials or for the parking of trucks used in conducting the business or used in conducting the business or use. 5. Parking, Front Yard. Required parking and loading spaces for multi -family dwellings or commercial and industrial uses shall not be located in a required front yard, except in the Sunriver UUC Business Park (BP) District and the La Pine UUC Business Park (LPBP) District and the LaPine UUC Industrial District (LPI), but such space may be located within a required side or rear yard. FINDINGS: The Hearings Officer finds this criterion is not applicable because no multi -family dwellings or commercial or industrial uses are proposed. F. Development and Maintenance Standards for Off -Street Parking Areas. Every parcel of land hereafter used as a public or private parking area, including commercial parking lots, shall be developed as follows: 1. Except for parking to serve residential uses, an off- street parking area for more than five vehicles shall be effectively screened by a sight obscuring fence when adjacent to residential uses, unless effectively screened or buffered by landscaping or structures. FINDINGS: The Hearings Officer finds this criterion is not applicable because the proposed parking will serve residential uses. 2. Any lighting used to illuminate off-street parking areas shall be so arranged that it will not project light rays directly upon any adjoining property in a residential zone. FINDINGS: The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring that any lighting used to illuminate off-street parking areas be installed so that it will not project light directly upon any adjoining property. 3. Groups of more than two parking spaces shall be located and designed to prevent the need to back vehicles into a street or right of way other than an alley. FINDINGS: At the outset, staff questions whether this criterion is applicable to the applicant's proposal where, as here, the applicant is only required to provide two parking spaces per dwelling, and the parking spaces are not truly in "groups" but rather are located on adjacent residential lots, some of which have abutting driveways. The Hearings Officer finds this subsection applies to parking lots or areas for uses that require more than two spaces, and not to optional parking spaces provided on residential driveways. Read otherwise, this paragraph could prohibit the typical residential driveway design that allows vehicles to back onto a street. Therefore, I find this criterion is not applicable. 4. Areas used for standing and maneuvering of vehicles shall be paved surfaces adequately maintained for all weather use and so drained as to contain any flow of water on the site. An exception may be made to the paving requirements by the Planning Director or Hearings Body upon finding that: a. A high water table in the area necessitates a permeable surface to reduce surface water runoff problems; or b. The subject use is located outside of an unincorporated community and the proposed surfacing will be maintained in a manner which will not create dust problems for neighboring properties; or c. The subject use will be in a Rural Industrial Zone or an Industrial District in an unincorporated community and dust control measures will occur on a continuous basis which will mitigate any adverse impacts on surrounding properties. FINDINGS: The Hearings Officer finds none of the exceptions in this subsection applies to the applicant's proposal. The submitted tentative plan shows that all driveways will be paved and will connect to Seventh Mountain Drive which also is paved. Opponents raised concerns about existing stormwater drainage problems in the vicinity of the subject property and potential contribution to those problems from the proposed dwellings. I find that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring that the applicant to design, construct and maintain the paved driveways so that any surface water drainage will be contained on each lot or diverted to existing storm drain facilities. 5. Access aisles shall be of sufficient width for all vehicular turning and maneuvering. FINDINGS: The Hearings Officer finds this criterion is not applicable because no access aisles are proposed. 6. Service drives to off-street parking areas shall be designed and constructed to facilitate the flow of traffic, provide maximum safety of traffic access and egress and maximum safety of pedestrians and vehicular traffic on the site. The number of service drives shall be limited to the minimum that will accommodate and serve the traffic anticipated. Service drives shall be clearly and permanently marked and defined through the use of rails, fences, walls or other barriers or markers. Service drives to drive in establishments shall be designed to avoid backing movements or other maneuvering within a street other than an alley. 7 Service drives shall have a minimum vision clearance area formed by the intersection of the driveway centerline, the street right of way line and a straight line joining said lines through points 30 feet from their intersection. FINDINGS: The Hearings Officer finds these criteria are not applicable because no service drives are proposed. 8. Parking spaces along the outer boundaries of a parking area shall be contained by a curb or bumper rail placed to prevent a motor vehicle from extending over an adjacent property line or a street right of way. FINDINGS: The Hearings Officer finds the proposed garage parking spaces will be sufficiently contained within the garage structure so that no curbs or bumpers are required. G. Off -Street Parking Lot Design. All off-street parking lots shall be designed subject to County standards for stalls and aisles as set forth in the following drawings and table: (SEE TABLE 1 AT END OF CHAPTER 18.116) 1. For one row of stalls use "C" + "D" as minimum bay width. 2. Public alley width may be included as part of dimension "D," but all parking stalls must be on private property, off the public right of way. 3. For estimating available parking area, use 300-325 square feet per vehicle for stall, aisle and access areas. 4. For large parking lots exceeding 20 stalls, alternate rows may be designed for compact cars provided that the compact stalls do not exceed 30 percent of the total required stalls. A compact stall shall be eight feet in width and 17 feet in length with appropriate aisle width. FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant does not propose a "parking lot." c. Section 18.116.031, Bicycle Parking New development and any construction, renovation or alteration of an existing use requiring a site plan review under this title for which planning approval is applied for after the effective date of Ordinance 93-005 shall comply with the provisions of this section. A. Number and Type of Bicycle Parking Spaces Required. General Minimum Standard. All uses that require off-street motor vehicle parking shall, except as specifically noted, provide one bicycle parking space for every five required motor vehicle parking spaces. Except as specifically set forth herein, all such parking facilities shall include at least two sheltered parking spaces or, where more than 10 bicycle spaces are required, at least 50 percent of the bicycle parking spaces shall be sheltered FINDINGS: The Hearings Officer finds this criterion is not applicable because each proposed dwelling is required to have fewer than five off-street parking spaces. d. Section 18.116.180, Building Setbacks for the Protection of Solar Access FINDINGS: As discussed above, under Section 18.110.060(J)(2), dwellings in the proposed zero -lot -line subdivision are not subject to solar setbacks. For the foregoing reasons, and with imposition of the above-described recommended conditions of approval, the Hearings Officer finds the applicant's proposal will satisfy all applicable approval criteria in the supplementary provisions. SITE PLAN REVIEW CRITERIA 4. Chapter 18.124, Site Plan Review a. Section 18.124.030, Approval Required A. No building, grading, parking, land use, sign or other required permit shall be issued for a use subject to DCC 18.124.030, nor shall such a use be commenced, enlarged, altered or changed until a final site plan is approved according to DCC Title 22, the Uniform Development Procedures Ordinance. B. The provisions of DCC 18.124.030 shall apply to the following: 1. All conditional use permits where a site plan is a condition of approval; 2. Multiple -family dwellings with more than three units; 3. All commercial uses that require parking facilities; 4. All industrial uses; 5. All other uses that serve the general public or that otherwise require parking facilities, including, but not limited to, landfills, schools, utility facilities, churches, community buildings, cemeteries, mausoleums, crematories, airports, parks and recreation facilities and livestock sales yards; and 6. As specified for Flood Plain Zones (FP) and Surface Mining Impact Area Combining Zones (SMIA). 7 Non-commercial wind energy system generating greater than 15 to 100 kW of electricity. C. The provisions of DCC 18.124.030 shall not apply to uses involving the stabling and training of equine in the EFU zone, noncommercial stables and horse events not requiring a conditional use permit. D. Noncompliance with a final approved site plan shall be a zoning ordinance violation. E. As a condition of approval of any action not included in DCC 18.124.030(B), the Planning Director or Hearings Body may require site plan approval prior to issuance of any permits. FINDINGS: The applicant's proposal does not fall within any of the use categories listed in this section as requiring site plan approval. However, the Hearings Officer finds site plan approval is required for the applicant's proposal because zero -lot -line subdivisions require site plan approval under Chapter 17.20 of the subdivision ordinance. Compliance with the site plan approval criteria is addressed in the findings below. b. Section 18.124.060, Approval Criteria A. The proposed development shall relate harmoniously to the natural environment and existing development, minimizing visual impacts and preserving natural features including views and topographical features. FINDINGS: 1. Natural Environment. The Hearings Officer finds the natural environment consists of native vegetation and topography within Widgi Creek and on surrounding public forest lands. As discussed above, the applicant's proposal would require the removal of trees from the proposed subdivision site, as well as some minor grading. The applicant has submitted a landscape plan which proposes to replace trees removed for construction on the subject site with trees planted elsewhere in Widgi Creek. As discussed in the findings above, I have found the applicant will not be required to provide screening vegetation in addition to the proposed landscaping show in the submitted landscape plan. However, | have recommended that the applicant be required as a condition of approval to submit true color samples for the dwelling exterior finishes to assure they will blend with the natural environment. | find the applicant's proposal will preserve the natural topography to the extent possible considering development constraints. | also find that although the applicant's proposal will have some visual impacts on Cascade Lakes Highvvoy, those impacts will be comparable to the view impacts on the highway from existing homes on the west side of Golf Village Loop. 2. Existing Development. The Hearings Officer finds existing development consists of the rest of the |nn/VVidQi Creek resort cornnnunitv, including residential uses, resort -related commercial uses (e.g., the clubhouse restounanU, the golf course and appurtenant facilities, tennis onurts, pool, private roads and paiho, and other infrastructure. Opponents argue the applicant's proposal will not relate harmoniously with the golf course, other residential dave|opnneni, and the Widgi Creek entrance. Each of these issues is addressed in the findings below. a. Golf Course and Residential Uses. Opponents argue the placement and orientation of the nine proposed lots will not be harmonious with the golf course because the dwellings will interfere with golf course play due to their proximity to the course and the glare from windows. Opponents also argue the location of the proposed dwellings will create an unreasonable safety risk for residents of the dwellings and their guests from flying golf balls. The record indicates the vast majority of existing Widgi Creek lots front on the golf course and the existing dwellings thereon have varying distances from the tees, fairways and greens. The parties disagree as to what constitutes an adequate "safety corridor" for golf course ho|es, and whether the proposed nine -lot subdivision would permit sufficient separation between the dwellings and golf play. In oral and written testimony, several opponents described incidents in which Widgi Creek residents and/or their guests were hit or nearly hit by flying golf balls. Opponents also submitted written testimony from golf course designer John Fought describing the general safety standards and setbacks between golf courses and dwellings. The record indicates Mr. Fought is a former professional golfer and a member of the American Society of GoIf Course Architects, and has designed or been involved in the design of 17 golf courses in the northvveot, including courses in the Black Butte Ranch, Sunriver, and Crosswater resorts in Central Oregon. Mr. Fought stated the minimum safety setback around a golf tee is 100 feet and the minimum safety setback for fairway areas is 175 feet from the centerline of the fairway measured perpendicular to the centerline at a point 500 feet from the tee. Mr. Fought also recommended that an additional 40 -foot "building setback" should be added to the 175 -foot setback. He stated these are minimum safety setbacks and that he often utilizes a 200-fooi setback from the centerline for "the modern gome." Mr. Fought submitted a diagram of the recommended setbacks overlaid on the Widgi Creek first fairway showing that a significant portion of the proposed subdivision site is located within 175 feet of the fairway centerline. In rebuttal, the applicant noted the Widgi Creek Golf Course was designed by Robert Muir Woods, a very weII-known golf course designer. The applicant also included several documents in its January 27, 2015 submission. PH -20 is an aerial photograph of the Widgi Creek Golf Course with a diagram labeled "Typical Course Safety Lirnits" showing a 120-fnot setback from the fairway centerline measured from a "variable" distance from the tee. Although it is difficult to tell because of the scale and colors of the aerial photoQraph, it appears the "typical" course safety corridor has been superimposed on the first fairway on the photo and that them jority of the proposed subdivision site is outside that corridor. PH -21 is the same aerial photograph with opponents' proposed 175 -foot setback safety corridor superimposed on Hole #1. That photo and diagram show the mjority of the proposed subdivision site would fall inside that setback. PH -22 is a letter dated January 25, 2015 from Brad Hudspeth and Paul Rozek, Head Superintendent of the Widgi Creek Golf Course, stating that John Fought is "well-respected among his peers," but that if his recommended safety corridor had been utilized in the design of Widgi Creek, the golf course "would have very few homes on it as most of the existing homes fall within these distances." The letter goes on to state that eight of the eighteen Widgi Creek holes (Holes 7, 8, 13, 14, 15, 16, 17, and 18) have dwellings located closer than 100 feet from the tee and/or closer than 175 feet from the fairway centerline. For example, the letter states one building on Hole 15 is 96 feet from the green, one dwelling on Hole 16 is 93 feet from the fairway centerline, one dwelling on Hole 17 is 147 feet from the fairway centerline, and one dwelling on Hole 18 is 90 feet from the fairway centerline. Attached to the letter are diagrams of Holes 1 and 15-18 showing the location of the proposed townhomes is "consistent with the existing development of Widgi Creek Golf Course and are outside the safety setbacks already used" on the course. Finally, the applicant submitted as PH -23 a letter from Louis Bennett, Head Golf Professional at Tetherow Golf Club, located a few miles from Widgi Creek, stating in relevant part: "After viewing where the proposed townhomes would be built, I do believe they would have no impact on this golf hole as it is played today and that the houses would be well out of the 'danger zone,' so to speak. The first hole at Widgi Creek is a slight dogleg left and the proper tee shot is to favor the left side of the fairway which leads straight to the green. This puts the right side [the side on which the proposed dwellings would be sited] with significant room to keep your ball inbounds. This hole is also a very short Par 4 hole and calls for an iron tee shot, or possibly a hybrid, to put your ball in position for a short approach shot to the green. Because an iron or hybrid does not hit the ball as far as a driver, they are much easier to control the trajectory and less likely to go way off target. As the hole plays now, it takes a significant mishit to fly out of bounds. For those who use a driver, if they do miss to the right they will be, more than likely, 50 to 100 yards past where the last proposed townhome would be built, as the homes are back closer to the teeing area. The idea that a 175 foot safety zone from the center of the fairway is standard for all holes is not supported by any research or publications that I am familiar with. There is certainly a safe zone for each hole, but the distance will vary depending on topography, vegetation, the play of the hole, the length of the hole, location of the green, etc. Every golf course is different and I have seen existing homes on many golf courses that are closer than those at Widgi Creek. In Widgi Creek's particular case, the existing homes on many of the holes are closer than the proposed homesites on hole #1. To summarize, if the townhomes are developed on the first hole at Widgi Creek, I firmly believe they will have no impact on how the hole plays and that townhomes will not be in imminent danger of being hit by stray golf balls." The Hearings Officer finds from this evidence that the setbacks from the proposed dwellings to the first fairway will be consistent with dwelling setbacks from other Widgi Creek fairways, but will be much less than those recommended by Mr. Fought. The question, then, is whether the hazard posed to residents and guests from golf balls flying toward the townhomes in their proposed location is so significant that the townhomes would not relate harmoniously to existing development. | find this is a close question. However, | am persuaded by the testimony of Mr. Bennett — who, in contrast to Mr. Hudspeth and Mr. Rozek who work for Widgi Cneek, appears not to have any personal interest in the outcome of this application — that the risk of off -course balls hitting the proposed dwellings or their residents is not significant, and that the proposed townhome location will not interfere with play on Widgi Creek Hole #1. Therefore, | find the applicant's proposal will relate harmoniously to the golf course and residential development. b. Views. Opponents argue the nine proposed dwellings will not relate harmoniously to nearby residential development because they will interfere with views of the first fairway and the rest of the golf course south of Seventh Mountain Drive from the nearest existing single-family homes on Golf Village Loop. Although these views are not of mountains or other iconic Central Oregon geogrophy, they nevertheless are scenic views of the local terrain. Nevertheless, the Hearings Officer finds that in the absence of view easements or other similar meonurma, residents of the nearby dwellings on Golf Village Loop do not have an entitlement to preservation of their existing views to the south. Opponents also argue the applicant's proposal will not relate harmoniously with the existing entrance to Widgi Creek because it will place dwellings in an area that currently is in a more natural state and visible from Cascade Lakes Highway. Hovvever, as discussed in the site plan findings in this decision, the Hearings Officer has found the proposed dwellings will be no closer to, and no more visible frorn, the highway than the existing dwellings on the west side of Golf Village Loop. While the proposed dwellings will change the appearance of this part of Widgi Creek, | find that given existing residential development near the entnanoe, this change will not be so jarring as to be disharmonious with the entrance. FinoUy, opponents argue the proposed metal roofs on the dwellings would not be harmonious with views from nearby residences or Cascade Lakes Highway. Hovvgwgr, as discussed in the findings above. Section 18.84.080/AJ specifically allows metal roofing material if it is non - reflective and of a color that blends with the surrounding vegetation and landscape. The Hearings Officer finds that if the applicant's proposal is approved on oppeo|, such approval should be subject to a condition of approval requiring that if the proposed dwellings have metal roofo, those roofs are non -reflective and of a color that blends with the surrounding vegetation and landscape. d. Mailboxes. Opponent Barbara Munster argues the applicant's proposed subdivision would interfere with Widgi residents' use of the mailbox facility located along Seventh Mountain Drive between proposed Lots 7 and 8. The Hearings Officer finds the mailboxes and the parking area between the mailboxes and Seventh Mountain Drive will be included in Tract "A" of Widgi Creek which includes Seventh Mountain Drive. | also find the configuration of the dwellings on Lots 7 and 8 will place the garages and driveways away from the mailbox parking area. For these reasons, | find nothing in the applicant's proposal will interfere with residents' use of the mailboxes. For the foregoing reasons, the Hearings Officer finds the proposed dwellings will relate harmoniously to the natural environment and existing deve|npnnent, minimizing visual impacts and preserving natural features including views and topographical features. B. The landscape and existing topography shall be preserved to the greatest extent possible, considering development constraints and suitability of the landscape and topography. Preserved trees and shrubs shall be protected. FINDINGS: The applicant's burden of proof states it proposes relatively Iittle grading for construction of the proposed dwellings and that it has taken care to site the dwellings to preserve landscaping to the greatest extent possible. Based on the Hearings Officer's site visit observations, | agree with the applicant that minimal grading will be required on the proposed subdivision site. As discussed above, | have found the applicant's proposal will require the removal of most of the trees and vegetation on the site, preserving very little existing vegetation. However, | have found that preservation of more vegetation is not necessary considering the number of dwellings proposed and the development constraints therefor. | find that if the applicant's proposal is approved on appea|, such approval should be subject to a condition of approval requiring the applicant to retain and preserve all existing vegetation on the subject site that is not required to be removed for construction, in order to screen the proposed dwellings from Cascade Lakes Highway. C. The site plan shall be designed to provide a safe environment, while offering appropriate opportunities for privacy and transition from public to private spaces. FINDINGS: The applicant's burden of proof states with respect to this criterion: "The site plan is designed to provide a safe environment for vehicular movement, pedestrians and bicycles. The roadways within the Widgi Creek development are sized and dei8dtD8cConrn7Odat88hGnpdwphicAa bicycle and pedestrian use. Given the low volume of traffic expected, Seventh Mountain Drive is fully adequate to accommodate the traffic and the ample off street parking ensures safe desiand function of the subdivision with golfers and pedestrians." Opponents have raised safety concerns regarding potential risks to residents of the proposed dwellings and their guests from flying golf balls. As discussed in detail in the findings obove, incorporated by reference herein, the Hearings Officer has found the applicant's proposal will relate harmoniously to existing development — e.g., the golf course — considering safety issues. For those same reasons, | find the applicant's proposal also will provide a safe environment considering the adjacent golf course. Opponents also argue the applicant's proposal will create safety hazards on Seventh Mountain Drive which abuts and would provide access to all nine proposed lots. The applicant's burden of proof states Seventh Mountain [)rive has a 24 -foot pavement width with rolled curbs. Hovvever, opponents state the segment of Seventh Mountain Drive adjacent to the subject site has only a 20-fout pavement width. They also note, and the Hearings Officer's site visit observations confirmed, that a portion of Seventh Mountain Drive abutting the subject site splits around a large tree and open space area, effectively creating a one-way couplet. They state their belief that each haif of the split roadway is only approximately 10 feet wide. Opponents argue the proposed site plan will not provide a safe environment for two reosono, each of which is addressed in the findings below. 1. Width of Seventh Mountain Drive. Opponents argue Seventh Mountain []rive does not have sufficient width to handle the additional traffic that would be generated by the nine new dwellings in addition to existing vahio|e, bicycle and pedestrian traffic. As discussed in findings elsewhere in this decision, based on the applicant's traffic analyses the Hearings Officer has found Seventh Mountain Drive has the capacity to handle vehicular traffic generated by the proposed subdivision. I share opponents' concerns about the road's adequacy to handle pedestrian and bicycle traffic along with vehicle traffic, particularly since the record indicates the golf cart path adjacent to the subject site generally is not available for bicycle or pedestrian traffic during the six- to seven-month golf season. Nevertheless, I find that because the two proposed subdivisions will add only 98 ADTs and only 9 p.m. peak hour trips to the Seventh Mountain Drive traffic, it will have minimal if any impact on the volume of traffic on the road. 2. Backing Onto Seventh Mountain Drive. The submitted site plan shows that all proposed dwellings would require the backing of vehicles from garages and driveways onto Seventh Mountain Drive. Opponents argue this configuration is unsafe because Seventh Mountain Drive is the main entrance into Widgi Creek and has the level of traffic, and no other dwellings on Seventh Mountain Drive requiring backing onto the road. The Hearings Officer finds there are other dwellings farther to the south on Seventh Mountain Drive that require backing of vehicles onto the road. However, I agree with opponents that the southern segment of the road has much less traffic. As noted in the findings below, the applicant's traffic analyses indicate traffic on Seventh Mountain Road northwest of Golf Village Loop is twice what it is southeast of Golf Village Loop (approximately 1,500 ADTs and approximately 740 ADTs, respectively), with roughly half of the traffic turning at Golf Village Loop. Seven of the nine proposed lots — Lots 1 through 7 -- would be located southeast of the Golf Village Loop intersection where traffic is lighter. However, Lots 8 and 9 would be located northwest of the intersection where traffic is heavier. And the submitted site plan shows the driveways for Lots 8 and 9 are configured so vehicles leaving those garages and driveways would be required to back onto the single -lane segment of Seventh Mountain Drive, and vehicles leaving Lot 8 would be required to back into the Seventh Mountain Drive/Golf Village Loop intersection. In an e-mail message dated January 6, 2015, Scott Ferguson of Ferguson & Associates, the applicant's traffic engineer, stated: "The difficulty of access to a residential lot on 7th Mountain Drive (owing to traffic flow on 7th Mountain Drive) would be no more or less difficult than any typical residential subdivision" The Hearings Officer disagrees with Mr. Ferguson's conclusion with respect to ingress and egress from the driveways for proposed Lots 8 and 9. I find the location of these driveways on the one-way segment of Seventh Mountain Drive — which opponents testified has only 10 feet of pavement width — and at or immediately adjacent to the intersection with Golf Village Loop, has the potential to create traffic conflicts at the intersection and to force vehicles to back across the narrow traffic lane and onto the open space area between the two segments of Seventh Mountain Drive. For these reasons, I find the applicant's proposed site plan does not create a safe environment for Lots 8 and 9 and therefore does not satisfy this criterion. D. When appropriate, the site plan shall provide for the special needs of disabled persons, such as ramps for wheelchairs and Braille signs. FINDINGS: The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to comply with all requirements of the Americans with Disabilities Act (ADA) identified by the county during the building plan review and permitting process for the dwellings. E. The location and number of points of access to the site, interior circulation patterns, separations between pedestrians and moving and parked vehicles, and the arrangement of parking areas in relation to buildings and structures shall be harmonious with proposed and neighboring buildings and structures. FINDINGS: The Applicant proposes access to the dwellings from Cascade Lakes Highway via Seventh Mountain Drive, an existing private road. The applicant proposes off-street parking within the attached garages and on the driveways. As discussed in the findings above, opponents have raised concerns about the safety of pedestrians and bicyclists on Widgi Creek roads in gonona|, and on Seventh Mountain Drive in particu|ar, with the addition of traffic from the applicant's two proposed new subdivisions. The Hearings Officer finds the golf cart paths throughout the development cannot provide a safe and reliable pathway for pedestrians and bicyclists during the golf season. For this reason, | have found that because the applicant's two proposed subdivisions will generate such minimal additional tnaffic, they will have minimal impact on traffic volumes on Widgi Creek roads. Ngverthe|eae, as discussed in the findings above, incorporated by reference herein, | have found the proposed location and configuration of Lots 8 and 9 will create safety hazards on Seventh Mountain Drive because vehicles leaving those lots will back onto the narrow, single -lane section of the road and at points in or adjacent to the intersection with Golf Village Loop. For these same reasons, | find the applicant's proposed access points and internal circulation patterns will not be harmonious. F. Surface drainage systems shall be designed to prevent adverse impacts on neighboring properties, streets, or surface and subsurface water quality. FINDINGS: The Applicant's burden of proof states all surface water drainage will be contained on site through a system of drainage ovva|eo, retention/infiltration baaine, and/or culverts. The Hearings Officer finds that if the applicant's proposal is approved on appea|, such approval should be subject to a condition of approval requiring the applicant to install all surface drainage systems in conformance with the applicable Department of Environmental Quality (DEQ) design standards for such systems, and to provide to the Planning Division prior to final plat approval certification by a licensed professional engineer that drainage facilities have been designed and constructed in accordance with the current Central Oregon Stormwater Manual9 to receive and/or transport stormwater from at least the design storm (as defined in the current Central Oregon Stormwater Manual) for all surface drainage water including stormwater coming to and/or passing through the development. G. Areas, structures and facilities for storage, machinery and equipment, services (mail, refuse, utility wires, and the like), loading and parking and similar accessory areas and structures shall be designed, located and buffered or screened to minimize adverse impacts on the site and neighboring prmper8ies' 9 The staff report states the manual can be found at the following website: www.lcog.orgidocuments/sub_action/CentralOR_StormwaterManual 201008. pdf FINDINGS: The applicant argues, and the Hearings Officer agrees, that all features described in this paragraph can be located within the garages and enclosed storage closets for each proposed dwelling, thereby satisfying this criterion. The applicant notes mailboxes for the dwellings would be located in the existing mailbox facility adjacent to the subject property. H. All above -ground utility installations shall be located to minimize adverse visual impacts on the site and neighboring properties. FINDINGS: The applicant's burden of proof states the applicant proposes to install all utilities underground with the exception of "standard above -ground power transformers and standard franchise utility pedestals and facilities." The submitted site plan does not identify the location of these proposed above -ground facilities or illustrate what they would look like or how they would be screened. Therefore, the Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to submit a revised site plan showing the location and design of any above -ground utility facilities and how they will be screened with vegetation or otherwise so that adverse visual impacts on the site and neighboring properties are minimized. I. Specific criteria are outlined for each zone and shall be a required part of the site plan (e.g. lot setbacks, etc.). FINDINGS: Compliance with the standards in the RC and LM Zones is addressed in the findings above. J. All exterior lighting shall be shielded so that direct light does not project off-site. FINDINGS: The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to install all exterior lighting in compliance with the outdoor lighting ordinance in Chapter 15.10 of the Deschutes County Code, and to install all fixtures so that they are shielded and downcast to prevent direct light from projecting off-site. K. Transportation access to the site shall be adequate for the use. 1. Where applicable, issues including, but not limited to, sight distance, turn and acceleration/deceleration lanes, right-of-way, roadway surfacing and widening, and bicycle and pedestrian connections, shall be identified. 2. Mitigation for transportation -related impacts shall be required. 3. Mitigation shall meet applicable County standards in DCC 17.16 and DCC 17.48, applicable Oregon Department of Transportation (ODOT) mobility and access standards, and applicable American Association of State Highway and Transportation Officials (AASHTO) standards. FINDINGS: The applicant submitted as Exhibit "F" to its burden of proof a "Trip Generation Letter" dated October 15, 2014 and prepared by Ferguson & Associates for both the Fairway and Pool applications. This letter concluded that since the predicted trip generation for the proposed subdivisions would be less than twenty p.m. peak hour trips (4:00 p.m. to 8:00 p.m. vveekdoyo), no further traffic analysis is required by the county code. In his December 10, 2014 comments on the applicant's proposal, the county's Senior Transportation Planner Peter Russell stated the applicant's trip generation letter was not adequate for the following reasons: "The most recent edition of the Institute of Traffic Engineers (ITE) Trip Generation Handbook indicates a Condo/Townhome (Land Use 230) generates 5.81 weekday trips per unit and 0.52 p.m. peak hour trips per unit. The proposed nine -lot subdivision would generate 52.29 daily trips (9 X 5.81). Deschutes County Code (DCC) at 18.18.310kJ(3)(a) states a site traffic report is required for a use that will generate more than 50 daily trip ends. The applicant's traffic engineer has nn/snRad the County's requirements for a Site Traffic Report. DCC 18./0.310(C)(3)(b) sets two thresholds for analysis. The first is the use will "...cause the site to generate 50-200 daily trip ends..." The 9 -unit subdivision meets this test. The second portion ofDCC YR.10.3Y0(C)()(b)states '...@n{/less than 20 peak hour trips..." The proposed use will generate 4.68 p.m. peak hour trips, which is less than 20. The applicant's traffic engineer has made the understandable mistake that 20 p.m. peak hour trips is the floor for a Site Traffic Report whereas it's actually the ceiling. This can be seen by comparing the language at DCC 18.10.310(C)C3)() which sets the thresholds for a Traffic Impact Study (TIA) at "more than 200 trip ends and 20 or more peak hour trips." The applicant's traffic analysis as submitted does not meet the requirements set bvDCC Y8.YY8.3Y0(C)CBnor contain the required elements for 8DSTRset forth 8/DCC Y8YYW.3Y0U]through fl." In response to Mr. Russell's comments, the applicant submitted additional traffic analyses as attachments PH -9 and PH -10 to its January 20, 2015 submission. PH -10 is an e-mail message dated January 6, 2015 from Ferguson & Associates including a "preliminary analysis" of traffic on Seventh Mountain Drive generated by the 107 single-family dwellings and 86 townhome dwellings existing in Widgi Creek. This analysis concluded these dwellings generate 1,518 A[}Ta on Seventh Mountain Drive northwest of Golf Village Loop, of which 152 are p.m. peak hour trips, and 738 ADTs on Seventh Mountain Drive southeast of Golf Village Loop, of which 70 are p.m. peak hour trips. The analysis concluded this traffic "is within the range of what can be expected in a residential aubdivioinn, which 5 typically up to 1,500 vehicles per day, but has been noted to exceed 3,000 vehicles per day in some circumstances." PH -9 is a "site traffic report" dated January 12, 2015, and prepared by Ferguson & Associates. This report predicted the nine proposed dwellings would generate 52 average daily vehicle trips (AOTs) of which 5 trips would occur during the p.m. peak hour. The traffic report analyzed the impact of traffic from the applicant's Pool proposal — i.e., "eight townhomes that have recently been approved,1° — and predicted those homes would generated 46 ADTs of which 4 trips would be during the p.m. peak hour. Therefore, the traffic site report predicted the two subdivisions mTheHeohngsOffioerassumestheeighdb)wnhomosrofarnedbzonetheoightdweUingsprnposodinVhe would generate 98 ADTs of which 9 trips would be during the p.m. peak hour. The traffic analysis concluded the two Seventh Mountain Drive intersections that would be affected by this additional traffic — Cascade Lakes Highway and Golf Village Loop — would continue to function at acceptable levels of service. The analysis also concluded site and stopping distances at both intersections are adequate. Based on the applicant's January 2015 traffic analyses, the Hearings Officer finds the addition of traffic predicted to be generated by the applicant's proposed nine -lot subdivision will not exceed the capacity of affected transportation facilities, and therefore no mitigation is required. c. Section 18.124.070, Required Minimum Standards A. Private or shared outdoor recreation areas in residential developments. Private Areas. Each ground -level living unit in a residential development subject to site plan approval shall have an accessible outdoor private space of not Tess than 48 square feet in area. The area shall be enclosed, screened or otherwise designed to provide privacy for unit residents and their guests. FINDINGS: The applicant's burden of proof states the proposed dwellings will have ground -level spaces with accessible private outdoor patios and yards in excess of 48 square feet in size. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to provide these private areas for each dwelling. 2. Shared Areas. Usable outdoor recreation space shall be provided for the shared use of residents and their guests in any apartment residential development, as follows: a. Units with one or two bedrooms: 200 square feet per unit. b. Units with three or more bedrooms: 300 square feet per unit. FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant does not propose any apartment residential development. 3. Storage. In residential developments, convenient areas shall be provided for the storage of articles such as bicycles, barbecues, luggage, outdoor furniture, etc. These areas shall be entirely enclosed. FINDINGS: The applicant's burden of proof states each dwelling (all over 3,000 square feet in size) will have adequate storage within the dwelling and two -car garage to accommodate the listed items. The Hearings Officer finds the applicant's proposal satisfies this criterion. B. Required Landscaped Areas 1. The following landscape requirements are established for multi -family, commercial and industrial developments, subject to site plan approval: a. A minimum of 15 percent of the lot area shall be landscaped. b. All areas subject to the final site plan and not otherwise improved shall be landscaped. FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant's proposal is for single-family dwellings and not a multi -family, commercial or industrial development. 2. In addition to the requirement of DCC 18.124.070(B)(1)(a), the following landscape requirements shall apply to parking and loading areas: a. A parking or loading area shall be required to be improved with defined landscaped areas totaling no less than 25 square feet per parking space. b. In addition to the landscaping required by DCC 18.124.070(B)(2)(a), a parking or loading area shall be separated from any lot line adjacent to a roadway by a landscaped strip at least 10 feet in width, and from any other lot line by a landscaped strip at least five feet in width. c. A landscaped strip separating a parking or loading area from a street shall contain: 1) Trees spaced as appropriate to the species, not to exceed 35 feet apart on the average. 2) Low shrubs not to reach a height greater than three feet zero inches, spaced no more than eight feet apart on the average. 3) Vegetative ground cover. d. Landscaping in a parking or loading area shall be located in defined landscaped areas which are uniformly distributed throughout the parking or loading area. e. The landscaping in a parking area shall have a width of not less than five feet. g. Provision shall be made for watering planting areas where such care is required. Required landscaping shall be continuously maintained and kept alive and attractive. h. Maximum height of tree species shall be considered when planting under overhead utility lines. FINDINGS: In previous decisions, the Hearings Officer has held that unlike the requirements of Paragraph (B)(1) of this section that apply only to multi -family and commercial uses, the requirements in Paragraph (B)(2) of this section apply to all uses. However, the staff report questions whether the standards in Paragraph (B)(2) should apply where, as here, the required "parking area" consists of two off-street parking spaces within an enclosed garage. I find that for this reason the standards in Paragraph (B)(2) do not apply to required off-street parking spaces for single-family dwellings. C. Nonmotorized Access. 1. Bicycle Parking. The development shall provide the number and type of bicycle parking facilities as required in DCC 18.116.031 and 18.116.035. The location and design of bicycle parking facilities shall be indicated on the site plan. FINDINGS: Compliance with bicycle parking requirements is discussed in the findings above. The Hearings Officer has found that because only two off-street parking spaces are required for each proposed dwelling no bicycle parking is required. 2. Pedestrian Access and Circulation a. Internal pedestrian circulation shall be provide in new commercial, office and multi -family residential developments through the clustering of buildings, construction of hard surface pedestrian walkways, and similar techniques. b. Pedestrian walkways shall connect building entrances to one another and from building entrances to public streets and existing or planned transit facilities. On site walkways shall connect with walkways, sidewalks, bikeways, and other pedestrian or bicycle connections on adjacent properties planned or used for commercial, multi family, public or park use. c. Walkways shall be at least five feet in paved unobstructed width. Walkways which border parking spaces shall be at least seven feet wide unless concrete bumpers or curbing and landscaping or other similar improvements are provided which prevent parked vehicles from obstructing the walkway. Walkways shall be as direct as possible. d. Driveway crossings by walkways shall be minimized. Where the walkway system crosses driveways, parking areas and loading areas, the walkway must be clearly identifiable through the use of elevation changes, speed bumps, a different paving material or other similar method. e. To comply with the Americans with Disabilities Act, the primary building entrance and any walkway that connects a transit stop to building entrances shall have a maximum slope of five percent. Walkways up to eight percent slope are permitted, but are treated as ramps with special standards for railings and landings. FINDINGS: The applicant's burden of proof states these criteria do not apply because it does not propose new office, commercial or multi -family residential developments. The staff report states staff previously has interpreted this section to require compliance with Paragraph (a) only for multi -family residential developments, and to require compliance with Paragraphs (b) through (e) for all developments subject to site plan review. The Hearings Officer finds the wording of this subsection is somewhat ambiguous. Nevertheless, I find that reading the subsection as a whole strongly suggests that it was not intended to apply to individual dwellings requiring site plan approval. For example, Paragraph (b) addresses connections between multi -family dwelling buildings. Paragraphs (b) and (e) address multiple building entrances. And Paragraph (d) discusses speed bumps and other features typically found in commercial or multi -family parking and maneuvering areas. For these reasons, I find this subsection does not apply to the applicant's proposal. For the foregoing reasons, the Hearings Officer finds the applicant's proposal does not satisfy all applicable site plan approval criteria. SUBDIVISION STANDARDS C. Title 17 of the Deschutes County Code, the Subdivision/Partition Ordinance 1. Chapter 17.20, Zero Lot Line Subdivision a. Section 17.20.010, Requirements In addition to the general provisions for subdivision and partitioning set forth in DCC Title 17, any application for a zero lot line subdivision or partition shall meet the following requirements: A. The tentative plan shall indicate all lot divisions, including those along the common wall of duplex units. FINDINGS: The applicant proposes a nine -lot, zero -lot -line subdivision. The submitted tentative plan shows all lot divisions for the proposed development. The record indicates there are no duplexes with common walls. As discussed in the findings above, the subject property includes two legal lots of record and therefore, if approved, the applicant's proposed subdivision would create a remainder lot approximately 40 acres in size that is developed with the Widgi Creek Golf Course. The staff report notes the applicant's proposed tentative subdivision plan does not show this remainder lot. The Hearings Officer finds that in order to assure compliance with this criterion, if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to show the remainder lot, and all existing uses thereon, on the final plat for the proposed subdivision. B. Independent utility service shall be provided to each unit, including, but not limited to, water, electricity and natural gas, unless common utilities are approved by the affected utility agency and are adequately covered by easements. FINDINGS: The applicant proposes to provide independent utility service including sewer, water, electricity, cable, and phone service to each lot. The applicant's burden of proof states electricity, cable, and telephone infrastructure already exists along the abutting segment of Seventh Mountain Drive, and that these facilities and services will be extended to each proposed new lot. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to install these utility service facilities for each residential development unit. C. Prior to the granting of final approval for creation of a zero lot line subdivision or partition, the Planning Director shall require the applicant(s) to enter into a written agreement in a form approved by the County Legal Counsel that establishes the rights, responsibilities and liabilities of the parties with respect to maintenance and use of any common areas of the unit, such as, but not limited to, common walls, roofing, water pipes and electrical wiring. Such agreement shall be in a form suitable for recording, and shall be binding upon the heirs, executors, administrators and assigns of the parties. FINDINGS: The applicant's burden of proof states the proposed Covenants, Conditions and Restrictions (CC&Rs) for "The Refuge at Widgi Creek" will be similar to the CC&Rs approved for the Elkai Woods Townhomes development and will be refined as necessary prior to final plat approval. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring that prior to final plat approval the applicant must submit draft CC&Rs for the proposed subdivision to the Deschutes County Legal Counsel for its review and approval, and record the CC&Rs with the Deschutes County Clerk following legal counsel's approval. Opponents questioned whether and how any new HOA formed for the proposed new subdivision will coordinate with the three existing HOAs. The Hearings Officer finds that given the adverse positions of the applicant and the HOAs in this and the Pool application, it is unlikely any of the HOAs would be interested in assuming responsibility for "The Refuge at Widgi Creek." Nevertheless, I find that potential conflicts among the HOAs are not a reason to deny the applicant's proposal. D. Each zero lot line subdivision or partition proposal shall receive site plan approval prior to submission of the final plat. Site plan approval shall be granted only upon a finding that the design, materials and colors proposed for each dwelling are harmonious and do not detract from the general appearance of the neighborhood. FINDINGS: The applicant has applied for site plan approval. However, as discussed in the findings above, the Hearings Officer has found the applicant's proposal does not satisfy all applicable site plan approval criteria. The submitted burden of proof does include elevation drawings for the proposed dwellings, showing the townhomes are designed to resemble single-family dwellings. The applicant has stated exterior building materials will include natural stone and wood timbers, and exterior colors will be muted earth tones to blend with the natural environment and the structures within the Widgi Creek resort. Opponents argue the proposed metal roofs are incompatible with nearby residential development. However, as discussed in the site plan findings above, the Hearings Officer has found Section 18.84.080(A) specifically allows metal roofing material if it is non - reflective and of a color that blends with the surrounding vegetation and landscape. 2. Chapter 17.16, Approval of Subdivision Tentative Plans and Master Development Plans a. Section 17.16.100, Required Findings for Approval A tentative plan for a proposed subdivision shall not be approved unless the Planning Director or Hearings Body finds that the subdivision as proposed or modified will meet the requirements of DCC Title 17 and DCC Title 18 through 21, and is in compliance with the comprehensive plan. Such findings shall include, but not be limited to, the following: A. The subdivision contributes to orderly development and land use patterns in the area, and provides for the preservation of natural features and resources such as streams, lakes, natural vegetation, special terrain features, agricultural and forest lands and other natural resources. FINDINGS: 1. Orderly Development. The Hearings Officer finds that for purposes of this approval criterion, "orderly development" is development that is served by adequate public facilities and services and utilities. The applicant proposes to develop a nine -lot, zero -lot -line subdivision that will have access from Cascade Lakes Highway via Seventh Mountain Drive, a private road improved to the county's private road standards. The proposed dwellings wil! receive water from the SMGV Water Co. water system, will be served by the City of Bend sewer system, and will have utility services through extension of existing utility facilities serving the adjacent developments. Therefore, |find the proposed subdivision will contribute to orderly development in the area. 2. Land Use Patterns. The existing land use pattern in the area surrounding the subject property consists of resort and residential development within the |nn/VVidgi Creek. The staff report atoteS, and the based on the Hearings Officer's site visit observations | agree, that existing residential development reflects a variety of dwelling styles and denoidea, and surrounding development includes private roads, resort amenities such as the clubhouse, tennis courts and pool, and the Widgi Creek Golf Course. | find the proposed single-family dwellings will be of comparable size to many of the detached single-family dwellings in Widgi Creek and will be similar to the townhome developments in E!kai Woods. Opponents argue the applicant's proposal will not contribute to the land use pattern in the area because the subdivision will be located on part of the Widgi Creek Golf Course. As discussed in the findings abovo, incorporated herein, the Hearings Officer has found the applicant's proposal is prohibited by Comprehensive Plan Policy 4.8.2 which requires areas developed as golf course to remain available for that use. For these same reasons, | find the applicant's proposal will not be consistent with existing land use patterns in the area. 3. Preservation of Natural Features and Resources. The record indicates the proposed subdivision site does not have any streams or special terrain features. The Widgi Creek development has man-made lakes and other features, native vegetation including scattered pine trees and native brush and grosaeo, as well as introduced landscaping such as golf course tees, fairways and greens. The proposed subdivision site is located within the LM Zone associated with Cascade Lakes Highway. The Hearings Officer has found that if the applicant's proposal is approved on oppea|, such approval should be subject to a condition of approval requiring the applicant to preserve existing vegetation except that vegetation required to be removed for construction. | find that with imposition of this condition of approval the Applicant's proposal will preserve natural features and resources. For the foregoing reasons, the Hearings Officer finds the applicant's proposal does not satisfy this criterion. B. The subdivision will not create excessive demand on public facilities and services, and utilities required to serve the development. FINDINGS: Public facilities and services affected by the proposed subdivision include domestic vvoter, sevvor, noods, storm dnainoge, police and fire protection, and schools. Each of these facilities and services is addressed in the findings below. 1. Domestic Water. The applicant's burden of proof states the proposed subdivision will be served by the existing Widgi Creek Water System which is a shared system owned by SMGV Water Company and Bhe|nn, LLC. The well permit for this water system is included as Exhibit G to the applicant's burden of proof. The burden of proof states the water system is supplied by ground wells permitted through the OWRD with water quality and distribution regulated under Oregon's Drinking Water Quality Act, administered by the Drinking Water Services (DWS) division of the Oregon Health Authority. The applicant states the well permit is for a total of 107 single family dwellings, 103 condominiums, and 130.9 acres of irrigation, commercial uses and ponds. The applicant states that because currently there are 107 single family residential lots and 86 townhomes platted at Widgi Creek, there remain 17 "condominium" units on the current well permit. The proposed subdivision would add nine residential units. The staff report questions whether the proposed townhome units, at over 3,000 square feet in size, reasonably can be considered "condominium" units for purposes of the well permit. The Hearings Officer assumes staff's concern relates to the amount of water usage predicted for different types of dwellings. In addition, opponents testified about occasional drops in water pressure in Widgi Creek. | understand staff's and opponents' concerns about water capacity, particularly in light of the board's intent, discussed in the comprehensive plan findings above, that future residential development in Widgi Creek be limited by water and sewer capacity. For this reason, | find that if the applicant's proposal is approved on appea|, such approval should be subject to a condition of approval requiring the applicant to provide to the Planning Division written documentation from the SMGV Water Company that there is sufficient capacity in the water system and well permit to serve the nine dwellings proposed in this application and the eight dwellings proposed in the applicant's Pool application. 2. Sewer. The applicant's burden of proof states the proposed subdivision would be served by an extension of and connection to City of Bend sewer facilities pursuant to the existing sewer service agreements between the city and SMGA Partnership (1992) and Widgi Creak, included in Exhibit "C" to the applicant's burden of proof. The applicant proposes that sewer service lines be extended to each lot in accordance with the city's standards and specification. Included as Exhibit "D" to the applicant's burden of proof is a "Sewer Analysis Memo" dated July 14, 2014 and prepared by the city's Engineering Division. The memo states the following with respect to the applicant's Fairway application: "First Fairway Site — There is an existing 8 -inch gravity main located on the northern boundary of the proposed development site within Golf Village Loop. There is a proposed sewer mainline within Seventh Mountain Drive on the northern boundary. It is assumed for the sake of analysis that flows generated by this development shall be directed at said pie. A peak summer day average flow rate of 1.73 GMP [gallons per minute] was assumed for the sake of modeling the development of 9 single family lots (9 EDUs [equivalent dwelling units] @ 0.19 GMP/DU) as provided by the applicant." (Bold and underscored emphasis in The memo stated the city did not identify any areas of concern in its analysis, but that the applicant would be required to upgrade the city's existing lift station on the Widgi Creek Golf Course prior to final plat approval. The memo also stated the applicant would be required to submit a new sewer analysis application when "the final locations of the 38 lots" for which the applicant requested sewer service in Widgi Creek are determined.11 The Hearings Officer finds the city's sewer analysis memo indicates there is sufficient sewer system capacity to serve the nine proposed lots. | find that if the applicant's proposal is approved on appea|, such approval should be subject to a condition of approval requiring that before final plat approval the applicant submit a new sewer analysis memo from the city documenting that sewer capacity is still 11 Opponents expressed concern about the applicant's reservation of sewer capacity for 38 additional dwellings in Widgi Creek and questioned where all of those dwellings would be located. The Hearings Officer finds ! need not address that issue because the only applications before me are the Fairway and Pool applications that together propose 17 dwelling units. available, and written documentation from the city that all required upgrades to the aforementioned lift station have been completed.12 Opponent HOAs argue extension of city sewer service to the proposed subdivision requires an exception to Goal 11, Public Facilities and Services, because they claim the original extension of sewer to the Inn/Widgi was not under an approved Goal 11. They are mistaken. The record includes a copy of Ordinance No. 90-039 through which the county took a "reasons" exception to Goal 11 to allow the extension of city sewer facilities to Seventh Mountain Golf Village and the Inn of the Seventh Mountain. The ordinance also adopted an amendment to the comprehensive plan adding the following paragraph: The County shall not allow anv further connection to the sewer line extended to the Inn of the Seventh Mountain destination resort outside of the City of Bend's acknowledged urban growth boundary. (Emphasis added.) The HOAs apparently believe the above -underscored language precludes serving the applicant's proposed subdivision with city sewer. The Hearings Officer disagrees. The findings in support of the exception include the following: "BASIC FINDINGS: * * * 9. The interest in the sewer line extension arises from The Inn's plans for a 237 -acre expansion, which was authorized pursuant to case files M-83-1 and CU -83-107, and which was last modified in file MC -88-1. The project is scheduled for completion by December 31, 1991. * * * CONCLUSIONARY FINDINGS: 2. * * * [T]he use of the sewer line will be limited to The Inn of the Seventh Mountain, an existing resort whose expansion has been reviewed and approved in conformance with all local land use regulations. Therefore, the expansion of this key facility to the resort is consistent with the capabilities of the land and planned growth of the community. 3. The purpose of the amendment is to allow a specific user, The Inn of the Seventh Mountain, to connect to the City of Bend's sewerage system. * * * 4. The proposed amendment would allow The Inn to replace or substitute the current on-site sewage disposal system with the City's sewage system. * * * The amendment would not result in the establishment of 12 The July 2014 sewer memo states its analysis is valid for six months, and therefore it would have expired in January of 2015. The applicant submitted into the record as an attachment to its January 20, 2015 submission, an electronic mail message dated January 13, 2015 from the city's engineer stating the sewer capacity reserved for Widgi Creek continues to be reserved from the date of the applicant's land use application. any new use, it would only alter the method of sewage disposal and the provider of that service. For these reasons, the requiroments of OAR 660- 04-020(2) (c)["reasons" exception] are satisfied." (Bold and underscored emphasis in original.) The Hearings Officer finds it is clear from these findings that the county took an exception to Goal 11 to extend city sewer service to what is now Widgi Creek — i.e., the approved 237 -acre expansion to the original Inn of the Seventh Mountain -- and therefore the plan language prohibiting "any further connection" to the sewer line extended to the Inn/Widgi applies to any uses other than the Inn/Widgi resort. 3. Storm Drainage. The applicant's burden of proof states all surface water drainage will be contained on site through a system of a system of drainage avva|ee, retention/infiltration baaina, and/or culverts. As discussed in the findings above, the Hearings Officer has found that if the applicant's proposal is approved on oppea|, such approval should be subject to a condition of approval requiring the applicant to install all surface drainage systems in conformance with the applicable DEQ design standards for such oyatenna, and to provide to the Planning Division before final plat approval certification by a licensed professional engineer that drainage facilities have been designed and constructed in accordance with the current Central Oregon Stormwater Manual. 4. Roads. The applicant proposes access to the new subdivision dwellings from Cascade Lakes Highway via the existing Seventh Mountain Drive. As discussed in the findings above, incorporated by reference herein, the Hearings Officer has found that based on the applicant's January, 2015 traffic analyses, traffic predicted to be generated by the proposed nine new dwellings will not exceed the capacity of Seventh Mountain Drive or its intersections with Golf Village Loop and Cascade Lakes Highway. 5. Police Protection. Widgi Creek is served by the Deschutes County Sheriff who did not comment on the applicant's proposal. 6. Fire Protection. In his December 26, 2014 comments on the applicant's proposal, Bend Fire Marshal Larry Medina identified a number of applicable standards in the Oregon Fire Code applicable to the proposed new oubdivioion, including requirements for fire apparatus access roada, fire protection water oupp|imS, and visible address numbers. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to assure the subdivision complies with all requirements identified by the fire departnnani, and to submit to the Planning Division prior to final plat approval written documentation from the fire department that all such requirements have been met. 7. Schools. The Hearings Officer finds Widgi Creek is located within the boundaries of the Bend-LaPine School District. The district did not submit comments on the applicant's proposal. However, | am aware the district responds in a variety of ways to accommodate additional students who may move into new developments. In particu|ar, the school district typically requests that roads within the development have sidewalks to accommodate student pedestrians, and that the developer be required to provide the school district with a perpetual easement to allow school district vehicles to travel across private roads. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject too condition of approval requiring that the applicant record a perpetual easement allowing Bend- LaPine School District vehicles to travel across Seventh Mountain Drive. 8. Utilities. The Hearings Officer finds utilities including electric, cable and telephone service are available to the proposed subdivision because they currently are provided to existing development within Widgi Creek. For the foregoing rmaouna, and with imposition of the recommended conditions of approval, the Hearings Officer finds the applicant's proposal will not create excessive demand on public facilities and services and utilities. C. The tentative plan for the proposed subdivision meets the requirements of ORS 92.090. FINDINGS: ORS 92.090(1) states a new subdivision can only use the same name if it is a continuation of an existing oubdivieion, with a sequential numbering ovaignn, and must either be platted by the same party or have the consent of the previous party. The applicant is requesting approval of a nine -|o[, zero -lot -line subdivision to be known as "The Refuge at Widgi Creek." The Hearings Officer finds this subdivision name conforms to Subsection (1) of the statute. Subsection (2) of this statute requires that roads be laid out to conform with existing plats on adjoining propertv, that streets and roads held for private use are clearly indicated on the tentative plan, and that all reservations or restrictions relating to such private roads and streets are set forth on the plat. As discussed in the Findings of Fact above, the proposed subdivision site is part of two much larger legal lots of record that are part of the Seventh Mountain Golf Village Subdivision. Hovvever, there are no adjoining platted residential lots with which "The Refuge at Widgi Creek" must conform. As discussed above, the subdivision would take access from Seventh Mountain Orive, an existing private road within Widgi Creek. The Hearings Officer finds that if this subdivision is approved on oppeo|, such approval should be subject to a condition of approval requiring the applicant to show on the final plat the private road status of Seventh Mountain Drive and any public easements. The Hearings Officer finds Subsections (3), (4) and (5) of the statute relate to final platting and therefore are not applicable to the applicant's proposal for tentative plan approval. D. For subdivision or portions thereof proposed within a Surface Mining Impact Area (SMIA) zone under DCC Title 18, the subdivision creates lots on which noise or dust sensitive uses can be sited consistent with the requirements of DCC 18.56, as amended, as demonstrated by the site plan and accompanying information required under DCC 17.16.030. FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject property is not within a SMIA Zone. E. The subdivision name has been approved by the County Surveyor. FINDINGS: The Hearings Officer finds that if the applicant's proposal is approved on appea|, such approval should be subject to a condition of approval requiring the applicant to obtain approval of the subdivision name from the Deschutes County Surveyor. c. Section 17.16.105, Access to Subdivisions No proposed subdivision shall be approved unless it would be accessed by roads constructed to County standards and by roads accepted for maintenance responsibility by a unit of local or state government. This standard is met if the subdivision would have direct access to an improved collector or arterial, or in cases where the subdivision has no direct access to such a collector or arterial, by demonstrating that the road accessing the subdivision from a collector or arterial meets relevant County standards and has been accepted for maintenance purposes. FINDINGS: The proposed subdivision would have frontage on Seventh Mountain Drive, a private road platted as part of the Seventh Mountain Golf Village Subdivision, Tract A, which connects to Cascade Lakes Highway, an ODOT-maintained arterial road. In its comments on the applicant's proposal, the road department stated all private roads providing access to the proposed subdivision meet the county's private road standards. 3. Chapter 17.36, Design Standards a. Section 17.36.020, Streets A. The location, width and grade of streets shall be considered in their relation to existing and planned streets, topographical conditions, public convenience and safety, and the proposed use of land to be served by the streets. The street system shall assure an adequate traffic circulation system for all modes of transportation, including pedestrians, bicycles, and automobiles with intersection angles, grades, tangents, and curves appropriate for traffic to be carried, considering the terrain. The subdivision or partition shall provide for the continuation of the principal streets existing in the adjoining subdivision or partition or of their property projection when adjoining property which is not subdivided, and such streets shall be of a width not less than the minimum requirement for streets set forth in this chapter. FINDINGS: The proposed subdivision would have frontage on and access from Cascade Lakes Highway, an ODOT-maintained arterial road, with residential lot access via the existing Seventh Mountain Drive, a private road platted as Tract A in the Seventh Mountain Golf Village Subdivision and improved in accordance with the county's standards for private roads. The applicant does not proposed any new streets. Therefore, the Hearings Officer finds the applicant's proposal satisfies this criterion. B. Streets in subdivisions shall be dedicated to the public, unless located in a destination resort, planned community or planned or cluster development, where roads can be privately owned. Planned developments shall include public streets where necessary to accommodate present and future through traffic. FINDINGS: The subject property is located in a RC Zone where private roads are allowed under Section 18.110.060(J)(1). No new roads are proposed. Therefore, the Hearings Officer finds the applicant's proposal satisfies this criterion. b. Section 17.36.040, Existing Streets Whenever existing streets, adjacent to or within a tract, are of inadequate width to accommodate the increase in traffic expected from the subdivision or partition or by the County roadway network plan, additional rights of way shall be provided at the time of the land division by the applicant. During consideration of the tentative plan for the subdivision or partition, the Planning Director or Hearings Body, together with the Road Department Director, shall determine whether improvements to existing streets adjacent to or within the tract, are required. If so determined, such improvements shall be required as a condition of approval for the tentative plan. Improvements to adjacent streets shall be required where traffic on such streets will be directly affected by the proposed subdivision or partition. FINDINGS: Neither the road department nor the county's Senior Transportation Planner identified any required right-of-way or improvements to Seventh Mountain Drive or Cascade Lakes Highway to accommodate traffic generated by the proposed subdivision. Nevertheless, opponents expressed concern that Seventh Mountain Drive is not wide enough to accommodate additional traffic from the proposed subdivision. As discussed in the findings above, based on the applicant's traffic analyses, the Hearings Officer has found the proposed subdivision will add such a small amount of additional traffic to Seventh Mountain Drive that the road's capacity will not be exceeded, and the intersections of Seventh Mountain Drive with Cascade Lakes Highway and Golf Village Loop will continue to function at acceptable levels of service. Therefore, I find the applicant will not be required to construct any road improvements. However, as also discussed above, I have found the location and configuration of proposed Lots 8 and 9 will require vehicles to back onto the narrow, one-way segment of Seventh Mountain Drive, and into the intersection with Golf Village Loop, thereby creating unacceptable safety hazards. c. Section 17.36.050, Continuation of Streets Subdivision or partition streets which constitute the continuation of streets in contiguous territory shall be aligned so that their centerlines coincide. FINDINGS: The Hearings Officer finds this criterion is not applicable because no new streets are proposed. d. Section 17.36.060, Minimum Right of Way and Roadway Width The street right of way and roadway surfacing widths shall be in conformance with standards and specifications set forth in DCC 17.48. Where DCC 17.48 refers to street standards found in a zoning ordinance, the standards in the zoning ordinance shall prevail. FINDINGS: The applicant's proposal does not include any new streets or improvements to existing streets. The proposed dwellings would have frontage on and access from Seventh Mountain Drive. The record indicates that road is improved with 20 feet of paved surface as required for private roads in Table A of Title 17. The Hearings Officer finds neither the RC nor WA Zone establishes street standards. Compliance with the private road standards in Section 17.48.180 is discussed in the findings below. e. Section 17.36.080, Future Extension of Streets When necessary to give access to or permit a satisfactory future division of adjoining land, streets shall be extended to the boundary of the subdivision or partition. FINDINGS: The Hearings Officer finds that because the adjoining land to the south is developed as the Widgi Creek Golf Course, it will not be further divided or developed with other uses. I find adjoining land on each side of the proposed subdivision site has frontage on and access to Seventh Mountain Drive. f. Section 17.36.120, Street Names Except for extensions of existing streets, no street name shall be used which will duplicate or be confused with the name of an existing street in a nearby city or in the County. Street names and numbers shall conform to the established pattern in the County and shall require approval from the County Property Address Coordinator. FINDINGS: The Hearings Officer finds this criterion is not applicable because no new streets are proposed. g. Section 17.36.130, Sidewalks * * * C. Sidewalk requirements for areas outside of urban areas are set forth in DCC 17.48.175. In the absence of a special requirement set forth by the Road Department Director under DCC 17.48.030, sidewalks and curbs are never required in rural areas outside unincorporated communities as that term is defined in DCC Title 18. FINDINGS: The subject property is located in an unincorporated community and therefore this criterion is applicable. Compliance with the provisions of Chapter 17.48 is addressed in the findings below. h. Section 17.36.140, Bicycle, Pedestrian and Transit Requirements A. Pedestrian and Bicycle Circulation within Subdivision. The tentative plan for a proposed subdivision shall provide for bicycle and pedestrian routes, facilities and improvements within the subdivision and to nearby existing or planned neighborhood activity centers, such as schools, shopping areas and parks in a manner that will: a. Minimize such interference from automobile traffic that would discourage pedestrian or cycle travel for short trips; b. Provide a direct route of travel between destinations within the subdivision and existing or planned neighborhood activity centers, and c. Otherwise meet the needs of cyclists and pedestrians, considering the destination and length of trip. FINDINGS: The staff report questions whether the provisions of this paragraph apply where, as here, Widgi Creek includes an existing shared -use system connecting dwellings with resort amenities. Staff also questions whether residents of the proposed dwellings will have legal access to the resort -wide shared -road system. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to submit to the Planning Division before final plat approval written documentation (such as recorded easements) showing residents of the proposed dwellings will have legal access to all paths leading to resort amenities. 2. Subdivision Layout. a. Cul-de-sacs or dead-end streets shall be allowed only where, due to topographical or environmental constraints, the size and shape of the parcel, or a lack of through -street connections in the area, a street connection is determined by the Planning Director or Hearings Body to be infeasible or inappropriate. In such instances, where applicable and feasible, there shall be a bicycle and pedestrian connection connecting the ends of cul-de-sacs to streets or neighborhood activity centers on the opposite side of the block. b. Bicycle and pedestrian connections between streets shall be provided at mid -block where the addition of a connection would reduce the walking or cycling distance to an existing or planned neighborhood activity center by 400 feet and by at least 50 percent over other available routes. c. Local roads shall align and connect with themselves across collectors and arterials. Connections to existing or planned streets and undeveloped properties shall be provided at no greater than 400 -foot intervals. d. Connections shall not be more than 400 feet long and shall be as straight as possible. FINDINGS: The Hearings Officer finds these criteria are not applicable because the proposed subdivision does not include any cul-de-sacs or dead-end streets, there is no grid system with typical blocks in the area, no new streets are proposed, and the subdivision would have access from Cascade Lakes Highway via an existing private road. 3. Facilities and Improvements. a. Bikeways may be provided by either a separate paved path or an on -street bike lane, consistent with the requirements of DCC Title 17. b. Pedestrian access may be provided by sidewalks or a separate paved path, consistent with the requirements of DCC Title 17. c. Connections shall have a 20 -foot right of way, with at least a 10 -foot usable surface. FINDINGS: Again, the staff report questions whether the existing shared -use road system in Widgi Creek will satisfy this criterion by being available to residents of the proposed dwellings. As discussed in the findings above, the Hearings Officer has found that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to provide to the Planning Division prior to final plat approval written documentation (such as recorded easements) showing residents of the proposed dwellings will have legal access to all paths leading to resort amenities. i. Section 17.36.150, Blocks A. General. The length, width and shape of blocks shall accommodate the need for adequate building site size, street width and direct travel routes for pedestrians and cyclists through the subdivision and to nearby neighborhood activity centers, and shall be compatible with the limitations of the topography. FINDINGS: The Hearings Officer finds this criterion is not applicable because there is no grid system with typical blocks in Widgi Creek. B. Size. Within an urban growth boundary, no block shall be longer than 1,200 feet between street centerlines. In blocks over 800 feet in length, there shall be a cross connection consistent with the provisions of DCC 17.36.140. FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject property is located outside of an urban growth boundary. Section 17.36.160, Easements A. Utility Easements. Easements shall be provided along property lines when necessary for the placement of overhead or underground utilities, and to provide the subdivision or partition with electric power, communication facilities, street lighting, sewer lines, water lines, gas lines or drainage. Such easements shall be labeled "Public Utility Easement" on the tentative and final plat; they shall be at least 12 feet in width and centered on lot lines where possible, except utility pole guyline easements along the rear of lots or parcels adjacent to unsubdivided land may be reduced to 10 feet in width. B. Drainage. If a tract is traversed by a watercourse such as a drainageway, channel or stream, there shall be provided a stormwater easement or drainage right of way conforming substantially with the lines of the watercourse, or in such further width as will be adequate for the purpose. Streets or parkways parallel to major watercourses or drainageways may be required. FINDINGS: The applicant proposes to show utility easements on the final subdivision plat, and the Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to do so. The applicant proposes that the dwellings be served by City of Bend sewer facilities pursuant to a sewer service license/agreement between the applicant and the city. The record indicates there are no water courses such as a drainage way, channel or stream on the proposed subdivision site. k. Section 17.36.170, Lots -Size and Shape The size, width and orientation of lots or parcels shall be appropriate for the location of the land division and for the type of development and use contemplated, and shall be consistent with the lot or parcel size provisions of DCC Title 18 through 21. FINDINGS: The Hearings Officer finds the size, width and orientation of the proposed lots are appropriate for the proposed zero -lot -line subdivision and for the remainder golf use parcel. I. Section 17.36.180, Frontage A. Each lot or parcel shall abut upon a public road, or when located in a planned development or cluster development, a private road, for at least 50 feet, except for lots or parcels fronting on the bulb of a cul-de-sac, then the minimum frontage shall be 30 feet, and except for partitions off of U.S. Forest Service or Bureau of Land Management roads. In the La Pine Neighborhood Planning Area Residential Center District, lot widths may be less than 50 feet in width, as specified in DCC 18.61, Table 2: La Pine Neighborhood Planning Area Zoning Standards. Road frontage standards in destination resorts shall be subject to review in the conceptual master plan. B. All side lot lines shall be at right angles to street lines or radial to curved streets wherever practical. FINDINGS: The applicant's burden of proof states these criteria are not applicable because Section 18.110.060(J) exempts zero -lot -line subdivisions from the lot width and frontage requirements in this section. The staff report questions whether such exemptions are applicable to requirements in Title 17. In the Hearings Officer's decision in Arrowood, cited above, I held without analysis or discussion that the zero -lot -line lots proposed in that decision were exempt from compliance with this section. I find it would not be appropriate to require compliance with the frontage standards in Title 17 while exempting the subdivision from equivalent requirements in Title 18. Therefore, I adhere to my holding in Arrowood.13 m. 17.36.190, Through Lots Lots or parcels with double frontage should be avoided except where they are essential to provide separation of residential development from major street or adjacent nonresidential activities to overcome specific disadvantages of topography and orientation. A planting screen easement of at least 10 feet in width and across which there shall be no right of access may be required along the lines of lots or parcels abutting such a traffic artery or other incompatible use. FINDINGS: The Hearings Officer finds this criterion is not applicable because no lots or parcels with double frontage are proposed. n. 17.36.200, Corner Lots Within an urban growth boundary, corner lots or parcels shall be a minimum of five feet more in width than other lots or parcels, and also shall have sufficient extra width to meet the additional side yard requirements of the zoning district in which they are located. FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject property is not located in an urban growth boundary. o. 17.36.210, Solar Access Performance A. As much solar access as feasible shall be provided each lot or parcel in every new subdivision or partition, considering topography, development pattern and existing vegetation. The lot lines of lots or parcels, as far as feasible, shall be oriented to provide solar access at ground level at the southern building line two hours before and after the solar 13 The Hearings Officer notes former Hearings Officer Briggs also found, without discussion, that the proposed Points West zero -lot -line subdivision she approved in 2006 was exempt from the Title 17 frontage requirements. zenith from September 22nd to March 21st. If it is not feasible to provide solar access to the southern building line, then solar access, if feasible, shall be provided at 10 feet above ground level at the southern building line two hours before and after the solar zenith from September 22nd to March 21st, and three hours before and after the solar zenith from March 22nd to September 21st. B. This solar access shall be protected by solar height restrictions on burdened properties for the benefit of lots or parcels receiving the solar access. C. If the solar access for any lot or parcel, either at the southern building line or at 10 feet above the southern building line, required by this performance standard is not feasible, supporting information must be filed with the application. FINDINGS: For the reasons set forth in the findings above concerning street frontage, incorporated by reference herein, the Hearings Officer finds Section 18.110.060(J)(2) exempts the applicant's proposal from the solar access standards in this section and in Title 18. p. 17.36.220, Underground Facilities Within an urban growth boundary, all permanent utility services to lots or parcels in a subdivision or partition shall be provided from underground facilities; provided, however, the Hearings Body may allow overhead utilities if the surrounding area is already served by overhead utilities and the proposed subdivision or partition would create less than 10 lots. The subdivision or partition shall be responsible for complying with requirements of DCC 17.36.220, and shall: * * * FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject property is not located in an urban growth boundary. q. 17.36.230, Grading of Building Sites Grading of building sites shall conform to the following standards, unless physical conditions demonstrate the property of other standards: A. Cut slope ratios shall not exceed one foot vertically to one and one half feet horizontally. B. Fill slope ratios shall not exceed one foot vertically to two feet horizontally. C. The composition of soil for fill and the characteristics of lots and parcels made usable by fill shall be suitable for the purpose intended. D. When filling or grading is contemplated by the subdivider, he shall submit plans showing existing and finished grades for the approval of the Community Development Director. In reviewing these plans, the Community Development Director shall consider the need for drainage and effect of filling on adjacent property. Grading shall be finished in such a manner as not to create steep banks or unsightly areas to adjacent property. FINDINGS: Based on the Hearings Officer's site visit observations, I find the proposed subdivision site is essentially level and therefore minimal grading will be required. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to comply with the grading standards in this section. s. 17.36.250, Lighting Within an urban growth boundary, the subdivider shall provide underground wiring to the County standards, and a base for any proposed ornamental street lights at locations approved by the affected utility company. FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject property is not located in an urban growth boundary. t. Section 17.36.260, Fire Hazards Whenever possible, a minimum of two points of access to the subdivision or partition shall be provided to provide assured access for emergency vehicles and ease resident evacuation. FINDINGS: Access to the subject property is from Cascade Lake Highway via Seventh Mountain Drive, an existing private road. In addition, the record indicates there is an emergency access/egress near the northeast corner of the adjacent Points West Subdivision that connects Seventh Mountain Drive to Elkai Woods Road in the Widgi Creek resort. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to provide to the Planning Division before final plat approval written documentation that the existing emergency ingress/egress for Widgi Creek will be available to the residents of the proposed new dwellings. u. 17.36.270, Street Tree Planting Street tree planting plans, if proposed, for a subdivision or partition, shall be submitted to the Planning Director and receive his approval before the planting is begun. FINDINGS: The applicant did not address this criterion in its burden of proof. The Hearings Officer finds the applicant's proposed landscape plan does not appear to propose any street trees. Therefore, I find this criterion is not applicable. v. Section 17.36.280, Water and Sewer Lines Where required by the applicable zoning ordinance, water and sewer lines shall be constructed to County and city standards and specifications. Required water mains and service lines shall be installed prior to the curbing and paving of new streets in all new subdivisions or partitions. FINDINGS: The applicant proposes to serve the new dwellings with domestic water via the existing private community water system owned and operated by SMGV Water Company and Bhelm, LLC). Sewage treatment would be provided through connection to existing City of Bend sewer facilities. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to construct all water and sewer lines to the applicable county and city standards and specifications, to install all required sewer and water mains prior to any street paving, and to provide to the Planning Division before final plat approval written verification that water and sewer lines have been extended to each lot. w. Section 17.36.300, Public Water System In any subdivision or partition where a public water system is required or proposed, plans for the water system shall be submitted and approved by the appropriate state or federal agency. A community water system shall be required where lot or parcel sizes are less than one acre or where potable water sources are at depths greater than 500 feet, excepting land partitions. Except as provided for in DCC 17.24.120 and 17.24.130, a required water system shall be constructed and operational, with lines extended to the lot line of each and every lot depicted in the proposed subdivision or partition plat, prior to final approval. FINDINGS: The proposed lots are less than one acre in size and therefore a community water system is required. The applicant proposes to provide domestic water through connection to the existing private community water system owned and operated by SMGV Water Company and Bhelm, LLC. The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring that prior to final plat approval: (1) the water system shall be operational with lines extended to each lot; (2) any and all required plan review and approval of the water system by the Oregon Health Division (OHD) shall be performed; and (3) the applicant shall provide to the Planning Division written verification from the OHD of that review and approval. 4. Chapter 17.44, Park Development a. Section 17.44.010, Dedication of Land A. For subdivisions or partitions inside an urban growth boundary, the developer shall set aside and dedicate to the public for park and recreation purposes not less than eight percent of the gross area of such development, if the land is suitable and adaptable for such purposes and is generally located in an area planned for parks. FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject property is not located within an urban growth boundary. B. For subdivisions or partitions outside of an urban growth boundary, the developer shall set aside a minimum area of the development equal to $350 per dwelling unit within the development, if the land is suitable and adaptable for such purposes and is generally located in an area planned for parks. C. For either DCC 17.44.010 (A) or (B), the developer shall either dedicate the land set aside to the public or develop and provide maintenance for the land set aside as a private park open to the public. D. The Planning Director or Hearings Body shall determine whether or not such land is suitable for park purposes. E. If the developer dedicates the land set aside in accordance with DCC 17.44.010 (A) or (B), any approval by the Planning Director or Hearings Body shall be subject to the condition that the County or appropriate park district accept the deed dedicating such land. F. DCC 17.44.010 shall not apply to the subdivision or partition of lands located within the boundaries of a parks district with a permanent tax rate. FINDINGS: The subject property is located outside of an urban growth boundary and outside the boundaries of the Bend Metro Park and Recreation District. In the Hearings Officer's decision in Arrowood I made the following findings under this section: "The Hearings Officer finds that in light of the subject property's location more or less in the center of a resort area that provides numerous recreational amenities and opportunities, and the proposed configuration of the subdivision, the proposed subdivision does not have land that is suitable and adaptable for park purposes and the applicant need not set aside park land. Rather, the applicant must comply with Section 17.44.020 discussed below." The Hearings Officer finds that although the proposed subdivision site is not in the center of the Widgi Creek resort, nevertheless it is in close proximity to the many recreational amenities and opportunities provided in the resort. Therefore, I find the applicant need not set aside or dedicate park land in the proposed subdivision, but will be required to comply with Section 17.44.020.14 14 The Hearings Officer notes former Hearings Officer Briggs came to the same conclusion concerning the lack of necessity to set aside or dedicate park land in her 2006 decision approving the Points West Subdivision. b. Section 17.44.020, Fee in Lieu of Dedication A. In the event there is no suitable park or recreation area or site in the proposed subdivision or partition, or adjacent thereto, then the developer shall, in lieu of setting aside land, pay into a park acquisition and development fund a sum of money equal to the fair market value of the land that would have been donated under 17.44.010 above. For the purpose of determining the fair market value, the latest value of the land, unplatted and without improvements, as shown on the County Assessor's tax roll shall be used. The sum so contributed shall be deposited with the County Treasurer and be used for acquisition of suitable area for park and recreation purposes or for the development of recreation facilities. Such expenditures shall be made for neighborhood or community facilities at the discretion of the Board of County Commissioners and/or applicable park district. B. DCC 17.44.020 shall not apply to subdivision or partition of lands located within the boundaries of a parks district with a permanent tax rate. FINDINGS: The Hearings Officer finds that if the applicant's proposal is approved on appeal, such approval should be subject to a condition of approval requiring the applicant to pay a fee in lieu of dedication of park land in the amount of $3,150 ($350 x 9 dwelling units). 5. Chapter 17.48, Design and Construction Specifications a. Section 17.48.160, Road Development Requirements -Standards A. Subdivision Standards. All roads in new subdivisions shall either be constructed to a standard acceptable for inclusion in the County maintained system or the subdivision shall be part of a special road district or a homeowners association in a planned unit development. FINDINGS: The applicant does not propose any new roads to serve the new subdivision. The proposed zero -lot -line lots would have access from Seventh Mountain Drive, an existing private road in Widgi Creek. b. Section 17.48.180, Private Roads The following minimum road standards shall apply for private roads: A. The minimum paved roadway width shall be 20 feet in planned unit developments and cluster developments with two foot wide gravel shoulders; B. Minimum radius of curvature, 50 feet; C. Maximum grade, 12 percent; D. At least one road name sign will be provided at each intersection for each road; E. A method for continuing road maintenance acceptable to the County; F. Private road systems shall include provisions for bicycle and pedestrian traffic. 1. In cluster and planned developments limited to ten dwelling units, the bicycle and pedestrian traffic can be accommodated within the 20 -foot wide road. 2. In other developments, shoulder bikeways shall be a minimum of four feet wide, paved and striped, with no on street parking allowed within the bikeway, and when private roads are developed to a width of Tess than 28 feet, bike paths constructed to County standards shall be required. Table A Footnote (8) 20' allowed for cul-de-sac's and roads with low anticipated traffic volumes as long as separate multiple use paths are provided. 28' width required (including the required 4' striped shoulder bikeway in each direction) for circulator and primary subdivision access roads and other roads when separate multiple use paths are not provided. FINDINGS: The staff report identifies this section as applicable to the applicant's proposed subdivision because it is not a planned unit or cluster development. The Hearings Officer finds this section is not applicable because the applicant does not propose any new roads for the subdivision and the subdivision lots will take access from Seventh Mountain Drive. And in any case, the record indicates Seventh Mountain Drive has at least 20 feet of pavement width, thereby satisfying the private road standards in Table A to Title 17. As noted in the findings above, neither the road department nor the county's senior transportation planner identified the need for additional right-of-way for or improvements to Seventh Mountain Drive to accommodate traffic generated by the new subdivision. IV. DECISION: For the foregoing reasons, the Hearings Officer hereby DENIES the applicant's proposed tentative subdivision plan, site plan, and LM review. In the event this decision is appealed to the Board of County Commissioners, and the Board elects to hear the appeal and approves the applicant's proposal on appeal, the Hearings Officer RECOMMENDS such approval be SUBJECT TO THE FOLLOWING CONDITIONS OF APPROVAL: This approval for a nine -lot, zero -lot -line subdivision is based on the applicant's submitted tentative plan, site plan, burden of proof, supplemental memoranda, exhibits, and written and oral testimony. Any substantial change to the approved tentative plan and/or site plan shall require new land use applications and approvals. PRIOR TO SUBMITTING THE FINAL SUBDIVISION PLAT FOR APPROVAL: 2. The applicant/owner shall submit to the Planning Division a revised site plan showing: a. the location and design of any above -ground utility facilities and the manner of screening with vegetation or otherwise so that adverse visual impacts on the site and neighboring properties are minimized; b. true color samples of the finish and roofing materials, demonstrating exterior finishes are in muted earth tones (e.g., browns, greens, or grays) that blend and reduce contrast with the surrounding vegetation and landscape of the building site, and that large areas, including roofs, are not finished with white, bright or reflective materials; and c. the remainder lot, all existing uses thereon, all off-site parking spaces thereon, and the sum of all off-street parking requirements. 3. The applicant/owner shall provide to the Planning Division written documentation from the SMGV Water Company that there is sufficient capacity in its water system and well permit to serve the nine dwellings approved in this decision and the eight dwellings approved in the Pool decision (247 -14 -000391 -TP, 247 -14 -000393 -SP, 247 -14 -000394 - LM). 4. The applicant/owner shall obtain approval of the subdivision name from the Deschutes County Surveyor. 5. The applicant/owner shall submit to the Planning Division written documentation from the City of Bend Fire Department that all requirements for fire apparatus access roads and fire protection water supplies have been met. 6. The applicant/owner shall submit to the Planning Division a new sewer analysis memo from the City of Bend documenting that sewer capacity is still available, and written documentation from the City of Bend that all required upgrades to the existing lift station on the Widgi Creek Golf Course have been completed. WITH OR ON THE FINAL PLAT: 7. The applicant/owner shall prepare the final plat in accordance with Title 17 of the Deschutes County Code, including all the necessary information required by Section 17.24.060. 8. The applicant/owner shall show on the final plat: a. the exact lot size of each residential lot; b. all easements of record and existing rights-of-way; c. a statement of water rights as required byORS 9212O; d. all utility and e. all public access easements. 9. The final plat shall be signed by all persons with an ownership interest in the pnopertv, as well as the Deschutes County Assessor and Tax Collector. 10. The applicant/owner shall record with the Deschutes County Clerk a perpetual easement allowing Bend-LaPine School District vehicles to travel on Seventh Mountain Drive. 11. The opo|icont/ovvnershoU provide to the Planning Division certification by a licensed professional engineer that drainage facilities have been designed and constructed in accordance with the current Central Oregon Stormwater Manual to receive and/or transport stormwater from at least the design storm (as defined in the current Central Oregon Stormwater Manual) for all surface drainage water including stormwater coming to and/or passing through the development. WITH CONSTRUCTION: 12. The applicant/owner shall assure that no dwellings exceed thirty (30) feet in height. 13. The applicant/owner shall install any outdoor lighting in conformance with the county's outdoor lighting standards in Chapter 15.10 of the Deschutes County Code. 14. The applicant/owner shall install any signs in conformance with the sign regulations in Chapter 15.08 of the Deschutes County Code. 15. The applicant/owner shall install all surface drainage systems in conformance with the applicable Department of Environmental Quality (DEQ) design standards for such systems. to construct all water and sewer lines to the applicable county and city standards and opocifinoUOna, to install all required sewer and water mains prior to any street poving, and to provide to the Planning Division before final plat approval written verification that water and sewer lines have been extended to each lot. 16. The applicant/owner shall assure compliance with all requirements of the Americans with Disabilities Act (ADA) identified by the county during the building plan review and permitting process for the dwellings. 17. The applicant/owner shall comply with the county's grading standards in Section 17.36.230. 18. The applicant/owner shall provide for each dwelling a ground -level space with an accessible private outdoor patio and yard in excess of 48 square feet in size. 19. If the approved dwellings are constructed with metal roofs, the applicant/owner shall assure those roofs are non -reflective and of a color that blends with the surrounding vegetation and Iandscape. 20. The applicant/owner shall install all utilities underground. 21. The applicant/owner shall provide domestic water service to each approved dwelling through extension of and connection to the SMGV water system. 22. The applicant/owner shall provide sewer service to each approved dwelling through extension of and connection to the City of Bend sewer system. AT ALL TIMES: 23. The applicant/owner shall not seek building permits for structures on the remainder lot without first obtaining land use review and demonstrating that domestic water is available for any such building and/or use. 24. The applicant/owner shall assure that parking spaces for the dwellings are available for the parking of operable passenger automobiles of residents only and are not used for the storage of vehicles or materials or for the parking of trucks used in conducting the business or used in conducting the business or use. 25. The applicantlowner shall install any lighting used to illuminate off-street parking areas so that it will not project light directly upon any adjoining property. 26. The 89p|iC8nt/Ovvn8rshGU retain and preserve all existing vegetation on the subject site that is not required to be removed for construction to provide as much screening of the dwellings as possible from the highway. 27. The opp|inont/ovvn9rSh8U assure that address numbers are provided for each dwelling in as required by the Oregon Fire Code. 28. The applicant/owner shall maintain the paved driveways for the approved dwellings so that any surface water drainage will be contained on each lot or diverted to existing storm drain facilities. DURATION OF APPROVAL: 29. The applicant/owner shall complete all conditions of approval and apply for final plat approval from the Planning Division within two (2) years of the date this decision becomes fina|, or obtain an extension the approval in this decision in accordance with the provisions of Title 22 of the County Code, or the approval shall be void. Dated this 6th da o A il, 2015. Mailed this 6th day of April, 2015. ce THIS DECISION BECOMES FINAL TWELVE DAYS AFTER THE DATE OF MAILING HEARING PROCEDURE The Board's decision on this application will be based upon the record before the Hearings Officer, the Hearings Officer's decision, the Staff Report and the testimony and evidence presented at this hearing. The hearing will be conducted in the following order. 1. Staff will provide a brief report. 2. The applicant will present its testimony and evidence. 3. Opponents and proponents will testify and present evidence. 4. Other interested persons will then present testimony or evidence. 5. The applicant presents rebuttal testimony. 6. Staff will be afforded an opportunity to make any closing comments. 2 Staff Report ''''.'.:... Background .'..,..:\::. Proposal .‘..‘....,.... HO Decision ',''......:' Analysis and Issues ....i....'.:. Alternative Courses Action ..:L'.,..... Questions Background — Wid g Creek 1983: Widgi Creek created as a 237 -acre expansion to Seventh Mountain Resort Zoned F3 Conditional Use CU -83-1o7 is the "Master Plan" • 107 SF Swellings, 103 Condo/Townhomes Background — Widgi Creek 2001: Deschutes County applies "Resort Community" rules to Widgi/7th/BBR "Physically Developed" Goal 4 exception Zone Change and Plan Amendment to RC Background —Master Plan Longstanding debate - Does the Goal Exception supersede the "Master Plan" HO: "BOCC findings are somewhat contradictory, and as a result both the applicant and opponents point to these findings as support for their respective positions." HO : "...when the board adopted the RC Zone and applied it to Widgi Creek, it intended the RC Zone, and not the Widgi Creek master plan, to govern development in Widgi Creek." Background —Master Plan Mile Post One -Another Widgi/nth subdivision Remanded from LUBA to the HO on the "Master Plan" issue for more analysis BOCC will need to decide this issue based on testimony received. Background Two Applications "Fairway", "The Refuge at Widgi Creek" • Nine -lot, zero -lot -line subdivision • 247 -14 -000395 -TP, 396 -SP, 397 -LM, 206-A "Pool" • Eight -lot, zero -lot -line subdivision • 247 -14 -000391 -TP, 392 -SP, 393 -LM, and 2o7 -A Both denied by the Hearings Officer CEN V5. I '› ni - - - 8 "Fairway" n ICA InCAN V.ERMELK 1,EO ARN1, j - - LOT ..2713ACK/f 1111,46.71,. W.?0, ' B:172115111.3.11 9cmci A IRO 0CR:C.00 ,44I'S 2--4 '0 w 'ITT,CON"IC I,: RC 1.11,1 V411, anA, 1A-AracAa-ma PAPP DACCA C rICKYI WIC Er1311,1,r1...IS rt,l's CIRI TWO .001111I S.C,A.Ccccein "AM, 011,1 41,7CCI,CP rmAr ca. WC, 744 17A 41 "Pool" Ai:'IEK.AAF,...AA,ES A oN, PCII2 A, TmcAr.u.nAl 004000040070 A' EVE4111 :aft CIM -X1-,9", _7144.114472AZ10 51.86, 1.,,CCI ''• PHASE VII 20=77 oo T -r- `“,q or T1 -E4014 114014 00G11014 110014404 740 1 0731,11 4400031, 171,71,1. ES COLA, 14DAtDCK.A. 1=41. ATI MI ITT ilCtIPAC FI WAY ROC, PFC., OS C777.7 NrA 400 40I 01410107 Ctidk amt on ruz oc • 4:07.1417 ‘A„., ..A.CAA/A,) IAA*, d "tclt, 2,12 I.E0les1 LONA VIC.14-141 " =LOT 7 .7_767 SF! 147 / -11112zo,u5K-',9 ,3114'SF I I 72C.,,IECITII 7.1.Tr.r.,C.01..rt -404 74140142940 - 149)727000444 01.101 711,4126,00E -.:1141 -,ERC 0051,1, 40 11.1CCIC =MI 101414014 ' II I '1,764A/6.1,1 IIRCA11. S., RICA, ccc 4014114017000014014 2 .791 41410477' ,." CAM, ,71.14F PIVI..fCRCATS r 1,1 IP V IV _ _ I.:A.1MA. ID [111.1:72 - I11.1, • FRX-cr, 17'040000001 04 ,11-1371-0417AD, FAN, 73 16,..Auxel 1.44I1441414 14:44140404114.1,1404170 ,,,Ma-dorrI. ANL 4, CrATIC —• 9737 i CUECCA.90.0 14414447' 4411 14010111021 141001 010274 P.IACCCChrt 66,31' liccar, ',M. Hearings Officer Denials Golf Course and Pool Facility are in private (non - HOA) ownership. Are these areas residentially (re)developable? Hearings Officer Denials Goal Exception and Comprehensive Plan Common Area and Replatting standards Design and Layout Hearings Officer Denials 2001 Goal 4 Exception creating RC zone is implemented through Comp Plan policies. Does Comp Plan Policy 4.8.2 apply to the subject properties and require them to remain undeveloped except for community amenities? Policy 4.8.2 - "Designated open space and common area, unless otherwise zoned for development, shall remain undeveloped except for community amenities such as bike and pedestrian paths, park and picnic areas. Areas developed as golf courses shall remain available for that purpose or for open space/recreation uses." Is the subject property "common area"? - HO: - Yes Is it "otherwise zoned" for development"? - HO: No Hearings Officer Denials - "Pool' "Pool" subdivision plat designated as "Common i8'; (Elkai Woods Townhomes Phase III Subdivision) • Currently contains a community pool facility in disrepair HO "Pool" subdivision site was plat designated common area • subject to Comprehensive Plan Policy 4.8.2 which requires that the site remain undeveloped except for community amenities. HO: proposed replat to remove the "common area" designation is not authorized by the ORS 92, governing replatting. HO Denials —Design/Layout Denial on multiple layout and design issues • Traffic circulation in "Fariway"/mailbox/entrance area • Awkward layout of "Pool" subdivision Consequence of limited road access Black Butte Ranch and 7th Mountain Shares RC code and Goal 4 exception with Widgi BOCC interpretations of Comp Plan Policy 4.8.2 will be binding on BBR/7th as well Staff will contact BBR/7th representatives to encourage their participation in this hearing Request for Continued Hearing Applicant has requested that the public hearing be continued to February 29, 2016. If granted by BOCC: Applicant's Presentation on the February 29 Hearing open for testimony today Typically in this situation: Parties will hold testimony to respond to the applicant's presentation on the 29th Parties are allowed to speak at both hearings, provided they do not simply restate the same issues. ALTERNATIVE COURSES OF BOARD ACTION • After conducting the public hearing and receiving testimony, the Board's options include the following: • Continue the public hearing to a date and time certain: - To the next BOCC hearing/meeting date or a subsequent BOCC hearing/meeting date. ALTERNATIVE COURSES OF BOARD ACTION • Close the oral record and keep the written record open to a date and time certain. • Close the public hearing (oral and written records), and begin deliberations BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subject: Kingiffplii Date: Name lLrriie„( ( k2 /72-6.5i4Ac."-- Dr Address Phone #s 563 \ 17167 3S53 Abcc re cit I E-mail address F7( In Favor Neutral/Undecided o Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Opposed BOARD OF COMMISSIONERS' MEETING REOUEST TO SPEAK Subject: Klie krol;clitiv Name 8(a-( Address lq144 5W Afiffm Ri;(4e, The 601.4 oP. 911 07 - Phone #s So3 - 1i5 - S -7 151 E-mail address bro-el e. In Favor Neutral/Undecided Date: 2- 71 Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Opposed Subject: Name Address BOARD OF COMMISSIONERS' MEETING REOUEST TO SPEAK ioN (3-- Date: W Hf 1-‘ 4-7 Phone #s 54(( -3 E-mail address Pier In Favor Neutral/Undecided rEkT5-1-Tosed Submitting written documents as part of testimony? LLJ Yes If so, please give a copy to the Recording Secretary for the record. BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subject: Name Address Date: Phone #s S E-mail address // In Favor No Neutral/Undecided ( Opposed Submitting written documents as part of testimony? Yes E No If so, please :ive a copy to the Recording Secretary for the record. BOARD OF COMMISSIONERS' MEETING Subject: Name 1<ic / 4—C REQUEST TO SPEAK Address Phone #s E-mail address In Favor 1 a 4 #.• e• It., es :,atosaa Date: 2/2 //6 r Neutral/Undecided Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. BOARD OF COMMISSIONERS' MEETING Subject: Name Address REQUEST TO SPEAK fi‘ Gsq)„ [5"-kc0 Phone #s 20G, E-mail address re'N (11 Date: No 12q In Favor Neutral/Undecided Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Opposed No BOARD OF COMMISSIONERS' MEETING Subject: Name r _ Address "oz Phone #s E-mail address In Favor REQUEST TO SPEAK Date: Z Neutral/Undecided Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subject: Date: Name Address /? 0 Phone #s .2-- V/ / E-mail address InFavor Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Neutral/Undecided Opposed No C‘Jej Opposed No Subject: Name Address BOARD OF COMMISSIONERS' MEETING Phone #s REQUEST TO SPEAK diA/ .AP Date: c7 46 gE/10 4/Li_e//z. (DL45Q -cIi/ im9t5 7)7e 0e) t) ? 7 7 0 6. 3?—/3 ar) E-mail address In Favor NeutraliUndecided r --Opposed Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subject: I< (3,1z) fe-03.5 Name C-dt R.1 + t Address 6057 ,t1 (i't kA.) 6acis Q 917 Phone #s 1 7— 14 E-mail address CA f-1 S L0-i---v‘A KA ; 1. In Favor Neutral/Undecided Submitting written documents as part of testimony? X. Yes No Date: Z-lz-1 I 1 If so, please give a copy to the Recording Secretary for the record. Opposed No The Refuge at Widgi Creek and Widgi Commons Presented by: Kine &Kine Development and Bhelm, LLC a=- - M I ■■N - M I= MI M Appeal Issues: = - MI NM M M Is additional Residential Development allowed at Widgi? Comprehensive Plan/RC Zone Provisions Master Plan - - Does it exist and remain applicable - If so, what does it say and can it be amended 2. Design Elements • Modifications to address Hearings Officers' compatibility findings IMI MEI MEI MN MI ME MN MIMI Mill ME MEI INN ME MIII MEI MN ME NM Timeline for Widgi Creek Development • 1983; Zone Change ZC-83-7: Request for a zone change from SMR (Surface Mining Reserve) to F-2 (Forest Use) involving 33 acres. "This application arises upon an overall application for a Master Plan, Conditional Use and zone change which will allow the expansion of the Inn of the Seventh Mountain in a phased development covering approximately 230 acres." MP -83.1 and CU -83-107: Conditional Use permit to allow the expansion of the Inn of the Seventh Mountain resort and a master plan to allow phasing of the development. Pre Goal 8 destination resorts subject to Conditional Use criteria, requires 65% of the land to be maintained in open space. Proposed overall density of approximately 1.1 units per acre, which included 90 SF residential lots and 120 condo units. Applicant requested flexibility in number of residential and condo units, together with plans for 18 hole golf course in the open space and club house that includes a pool, tennis courts and restaurant. NM EN NM ME OM MN EN EM IMM 1E111 MEI IMIN NM moi mo me Ns mg Mg Timeline. Cont • 1984; SP -84-23: Site plan approval for the golf course. • MC -85-13. Modification of Condition. Change the #of SF from 95 to 107 residential lots; still proposing a density not to exceed 210 units and adding a 3rd phase. • 1986; TP -86-667: Tentative subdivision plan for 47 lots — approval expired and never completed. • MC -87-2: Modification of Conditions related to time for completion and sequence of development. • MC -88-1: Modification of Conditions. Applicant moved condo area and recreation amenities, shortened street length, connect sewer system to city and change the phasing schedules to Phase 1. • 1988; E-88-9: Extension to allow 6 month for completion of Phase 1. • 1988; E-88-14: Extension to allow completion of golf course to June 30, 1989. • 1988; MC -88-2: Modification of the original golf course site plan. • 1989; E-89-6: Extension of SP -84-23 and MC -88-2 for clearing fairways and installation of irrigation pipe. • 1989; MC -89-22: Modification of Conditions. Allow for completion of fairways by December 31, 1990. • 1989; E-89-6: Extension for a second and final six-month Extension of SP -84-23 and MC - 88 -2 for the golf course. Timeline, Cont. • 1989; TP -89-702: Tentative subdivision plan for 52 lots — approval not completed, expired. • 1990; PA -90-8: Plan Amendment which allowed the extension of the City's sewer main to the Inn of the Seventh Mountain. • 1990; MC -90-14: Modification of Conditions. Allowed platting of all 107 Tots prior to construction of condo units. • 1990; MC -90-18: Modification of Conditions, to allow a Temporary Real Estate Sales Office. • 1990; MC -90-21: Modification of Tentative Plat (TP -90-735) to allow septic systems if sewer if not available and TP for 107 single-family lots. M NM NM NM NM = NM NM E NM INII N M me me me on N on Timeline, Cont. • 1990; MC -90-24: Modification of Conditional Use Permit. Allows road crossing at golf course between holes 1 and 2 to be at -grade. • 1991; SP -91-21: Site Plan for restaurant, golf pro shop, cart storage and locker/changing room building, swimming pool and tennis courts adjacent to the cart storage building. Pool was never built here and permit expired. • 1994; SP -94-45: Site Plan for an office expansion to the restaurant building at the golf course. • 1992: Forest zone amended, Resort became a Nonconforming Use. • 1995; AD -95-16: Administrative Decision - a Declaratory Ruling on the Seventh Mt. Golf Village/Widgi Creek development to establish that the land use permit to develop the property has been initiated (which would allow the condo portion to be built). • 1996; SP -96-72: Site Plan Review for Clubhouse. IIIIM NM MM MM MM MM MM EN MI MM MM IIMI MM M. M. MM MM IMI IMI Timeline, Cont. • 1996: Elkai Woods Townhomes: Phase! TP -96-857, Master Plan for 86 Townhouse lots SP -96-10, Site Plan for the first 8 of the 86 Townhouse units FPA -97-14 1996; SP -96-74: Site Plan Review for Amenities Complex for the Elkai Woods Townhome Development, including community pool. Again, not built and permit expired. • 1997: Elkai Woods Townhomes: Phase II SP -97-31, Site Plan for Elkai Woods Phase II for 12 units FPA -97-49 • 1998: Elkai Woods Townhomes: Phase III SP -98-57, Site Plan for Phase III of Elkai Woods, 24 additional units FPA -99-7 1998; SP -98-42: Site Plan for Elkai Amenities Buildings, including community building, pool, and parking, and landscape areas. I= =I I= I= IIIIII I= EMI =I NM =I =I I= MI MIN MI =I MI MI NM Timeline. Cont • 2000: Final Plat Review, FPA -00-11, of TP -96-857. • 2001: Deschutes County Adopts Ord. No. 2001-47 and 48. Amends Title 18 and the Comprehensive Plan that includes the adoption of the Resort Community Zone (RS) and the Seventh Mountain Widgi Creek Resort (SMWCR) District as well as new zoning and Comprehensive Zoning Maps. • 2001: Declaratory Ruling, DR -01-9, for determination of initiation of use for the Elkai Woods project (TP -96-857). • 2001: Final Plat, FPA -01-10, Elkai Woods. Replat of Lots 21 -28, Phase III. I= NM I= MINI =I MINI 11= NMI I= ME NM EMI IMMI MN Resort Community Ordinance Ord. 2001-047/048 *Similar to the Inn of the Seventh Mountain, Widgi Creek has never been approved as a Goal 8 destination resort, however the development justifies a "physically developed" exception to Goal 4. As illustrated in the Figures, Widgi Creek is for all practical purposes built -out. * Widgi Creek was approved in 1983 as a 237 -acre expansion to the Inn including a golf course with surrounding residential lots consisting of 107 lots for single-family dwellings and 103 lots for condominium units. *Amendments to the Deschutes County Comprehensive Plan, zoning ordinance text and corresponding maps designate the Ranch and Inn/Widgi as Resort Communities and provide for their future development accordingly. * The 2001 Resort Community comprehensive plan maps for the Ranch and the Inn/Widgi (Exhibits F and G to Ordinance 2001-047) and zoning maps (Exhibits C and D to Ordinance 2001-048) supersede the previous County comprehensive plan and zoning maps for these areas. *There are no new commercial uses allowed for either the Ranch or the Inn/Widgi as defined in OAR 660-022-010. However, commercial -type uses that are ancillary to the resort community are allowed. I I I N I N I N I MN 11111 I NIII NM I N I INII NM Deschutes County Comprehensive Plan Background Section 4.8 Resort Communities Background A Resort Community is characterized as an unincorporated community that is established primarily for, and continues to be used primarily for, recreation and resort purposes. It includes residential and commercial uses and provides for both temporary and permanent residential occupancy, including overnight lodging and accommodations. Black Butte Ranch and Inn of the 7th Mountain/Widgi Creek met the definition of "resort community" because they have historically developed with a mixture of residential and recreation or resort amenities. Mil =I MN INN =I INN NM IMMI WEI INN INNI 11•11 MI MIN INN 11•11 IIIIIII MI INN Deschutes County Comprehensive Plan Background Section 4.8 Resort Communities Inn of the 7th Mountain/Widgi Creek Background The Inn of the Seventh Mountain (Inn) has been developed since the late 1960s and has historically been considered to be a stand-alone resort community with overnight lodging and recreation facilities for tourists. It has 230 condominium units, spread among 22 buildings. Widgi Creek was approved in 1983 as a 237 -acre expansion to the Inn and includes a golf course with surrounding residential lots consisting of 107 for single-family dwellings and 103 for condominium units. The use of the site as a destination resort was initiated previous to implementation of the statewide planning goals in Deschutes County. Deschutes County Comprehensive Plan - Policies Section 4.8 Resort Community Policies Policy 4.8.2 Designated open space and common area, unless otherwise zoned for development, shall remain undeveloped except for community amenities such as bike and pedestrian paths, park and picnic areas. Areas developed as golf courses shall remain available for that purpose or for open space/recreation uses. Deschutes County Co. p ehensiue Pian - Policies Section 4.8 Reso Co unity Policies Policy 4.8.4 Residential minimum lot sizes and densities shall be determined by the capacity of the water and sewer facilities to accommodate existing and future development and growth. Deschutes County Comprehensive Plan - Policies Black Butte Ranch General Policies Policy 4.8.8 Residential, resort and utility uses shall continue to be developed in accordance with the Master Design for Black Butte Ranch and the respective Section Declarations. Inn of the 7th Mountain Widgi Creek General Policies Policy 4.8.27 New uses or expansion of existing uses that require land use approval shall be approved only upon confirmation from the City of Bend that sewer service can be provided. I N NM IIIIM E M I = M M MN I NM IMII NM E E M M Title 18. Deschutes County Zoning Ordinance Chapter 18.110. RESORT COMMUNITY ZONE 18.110.010. Purpose. 18.110.020. Seventh Mountain/Widgi Creek Resort District. 18.110.030. Widgi Creek Residential District. 18.110.040. Black Butte Ranch Surface Mining / Limited Use Combining District. 18.110.050 Black Butte Ranch Utility / Limited Use Combining District. 18.110.060. Development Standards. Title 18. Deschutes County Zoning Ordinance RC Zone 18.110.010. Purpose. The purpose of the Resort Community Zone is to provide standards and review procedures for development in the communities of Black Butte Ranch and The Inn of the Seventh Mountain/Widgi Creek. The provisions of this chapter shall apply to any Resort Community that is planned pursuant to OAR 660 Division 22. Title 18. Deschutes County Zoning Ordinance — RC Zone 18.110.030. Widgi Creek Residential District The following uses and their accessory uses are permitted subject to the applicable provisions of DCC 18.110.060: A. Single-family dwelling. B. Residential home. C. Residential facility. D. Timeshare units. Title i8. Deschutes County Zoning CrcHnance RCZone 18.110.060. Development Standards. J. Land Divisions. 1. General. Notwithstanding any provision to the contrary contained herein or in other parts of the County Code, roads within the Resort Community Zone may be private roads and new lots or parcels may be created that have access from, and frontage on, private roads only. These roads must meet the private road standards of DCC Title 17, and are not subject to public road standards of DCC Title 17. An agreement acceptable to the County Road Department and County Legal Counsel shall be required for the maintenance of new private roads. 2. Zero Lot Line Subdivision. Notwithstanding any provision to the contrary contained herein, zero lot line subdivisions for single-family residences shall be allowed in the Resort Community Zone in accordance with the provisions of DCC Chapter 17.20. Zero lot line subdivisions are not subject to the setback provisions of 18.110.060(A), solar setback standards of 18.110.060(B)(1), lot coverage provisions of 18.110.060(D) or lot requirements of 18.110.060(1)(1). (Ord. 2005-041 §2, 2005; Ord. 2001-048 §2, 2001) 44; M NooJJO'.uar+r)uo siirnlosaa NVld 3AI1V1N31 >13a1=1O IOOIM lb' 3Ofld3d ARL GOLF VL- via AGE LOOP 0 Z W 0_ 0! 05,54 Z-<zt,",t W 4't 0 (tD5 w plziP LI-vt — 5 cc w H N�]3 ',51.145100 ITV OS KI NYld 3AIIVIN31 N331:10 IDGIM JY3ondal 3F11 11,11 inl Goo vu-LAGEL°' tzt ! it 5 !.. .; 70t I 4 z t s 111,49110 totelmI Attose 1.• Wawa mat }I8 t1011.110/IXXIY *Noma r ototootas VMH t.oziezrz . „. 55.1 0 U.) 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I I I 2 I I I CD , I ; I 504-i.s.‘2; NO1)q110 'A I WOO S I nw)sle 3AIIVINal IIA 3SVHd SDAIOHNMOI SGOOM IV>i13 , 2 .141 IIIVI.103 V V 51.11. 0 VMH 1cr 0 0J 1'. gaIrls-, 3stlici \ • 1 J., , — - i ! 0 '..- O.- \ 1 i oi • 0 oes, r.e,s.49 • MX, ILIU M, , I 0.LOHd 1VII:13V IIA 3SVHd SSINOHNMOI SClOOM 1%0113 5101107Hi 2 C1))I . Mwo laiv0MtV V IVVVY1t4d "VMH Deschutes County comprehensive Pan -Policies Policy 4.8.2 Designated open space and common area, unless otherwise zoned for development, shall remain undeveloped except for community amenities... Deschutes County Comprehensive P Definition an Section 5.2 Glossary and Acronyms "Common Area" means `common property' as defined in the Oregon Planned Communities Act at ORS 94.550(7). Oregon Revised Statutes ORS 94.550 (7) Common property means any real property or interest in real property within a planned community which is owned, held or leased by the homeowners association or owned as tenants in common by the lot owners, or designated in the declaration or the plat for transfer to the association. 111111111M11111111111111H11111 $141.(4 13 4 1 4 08/31/2001 03:08:37 PM Cnts2 Stns4 T1 $110.00 $5.00 $11.00 $10.00 $5.00 AMENDED DECLARATION of COVENANTS, CONDITIONS AND RESTRICTIONS or ELKAI WOODS HOMEOWNERS' ASSOCIATION, INC. and ELKAI WOODS FRACTIONAL HOMEOWNERS' ASSOCIATION, INC. 1.4 "Common Property" shall mean and refer to that area of land shown on the recorded plat of the Property, including any improvements thereon, which are intended to be devoted to the common use and enjoyment of the members and which land has been conveyed to the Association. The common property shall not include the pool and its facilities or the conference building, facilities and parking lot adjacent to the conference building and facilities. STATE OF OREGON COUNTY OF DESCHUTES PERF T TO APPROPRIATE THE PUB C ATERS THIS PERMIT IS HERE Y ISS D TO SMGA PARTNERSH P 4500 SW KRUSE WAY, SUITE 230 OSWEGO, OREGON 97035 50 6 56873 to use the waters of TWO WELLS in the DESCHUTES RIVER BASIN or IRRIGATION OF 130.9 ACRES, DOMESTIC (107 SINGLE FAMILY DWELLINGS AND 103 CONDOMINIUMS) / COMMERCIAL (RESTAURANT, CLUBHOUSE AND GOLFCOURSE) AND MAINTENANCE OF PONDS FOR RECREATION USES. C.E. "WIN" FRANCIS MARTIN E. HANSEN* GERALD A. MARTIN MICHAEL H. MCGEAN *ADMITTED IN OREGON ANL) WAST IINGTON FRANCIS HANSEN & MARTIN LLP ATTORNEYS AT LAW 1148 NW HILL STREET, BEND, OR 97701-1914 PHONE: 541-389-5010 • FAX: 541-382-7068 WWW.FRANCISHANSEN.COM February 29, 2016 Commissioner Tammy Baney Commissioner Tony DeBone Commissioner Alan Unger c/o Deschutes County Legal Counsel Deschutes County Bend, OR 97708 CHRISTOPHER J. MANFREDI t ALISO,N A. HUYCKE SARAH E. HARLOS ALISON G. HOHENGARTEN t ADmITIED IN OREGON AND CALIFORNIA Re: Appeal of Hearings Officer Decision by Kine & Kine Properties 247 -14 -000391 -TP; 247 -14 -000393 -SP; 247 -14 -000394 -LM 247 -14 -000395 -TP; 247 -14 -000396 -SP; 247 -14 -000397 -LM Dear Commissioners: Our office represents the Widgi Creek Homeowners Association, the Elkai Woods Homeowners Association, and the Elkai Woods Fractional Homeowners Association, the three HOAs within the Widgi Creek community. I am writing on behalf of those HOAs in support of the Hearings Officer decisions that are under appeal. This memorandum is meant to give an overview of our objections to the development applications, and why we believe the Hearings Officer made the correct decisions. These appeals present important questions of policy and the interpretation of the Comprehensive Plan for Widgi Creek and Black Butte Ranch. We are hopeful that the County can give additional support to the findings and conclusions reached by the hearings officer, and provide some degree of closure for the residents of the Widgi Creek community. 1. Summary of Developer's Proposals Denied By Hearings Officer. Developer Larry Kine and the Widgi Creek golf course owner BHELM LLC have asked to create 17 new lots within the Widgi Creek/ Elkai Woods community. They want to build 9 new townhomes in the golf course area along the first fairway and main driveway to Widgi Creek off Century Drive. They also want to build eight new townhomes over what is now the swimming pool and community amenities area on a lot designated as "Common Lot 18" in the middle of the Elkai Woods plat. Common Lot 18 has historically been used by the Widgi residents as well as non-resident golf club members. The Hearings Officer denied both applications after a well -attended public hearing. The Hearings Officer found that the County's Comprehensive Plan policies for Widgi Creek prohibited "golf course area" and "designated common area" like this from being Letter from Widgi Creek and Elkai Woods HOAs to Board of Commissioners Re: Appeal of Hearings Officer Decision by Larry Kine/Kine & Kine Properties February 29, 2016 Page 2 converted to residential development. She also found the proposed new developments did not harmonize with the Widgi Creek planned development. Quite simply, this appeal comes down to whether the golf course owner can reconfigure the golf course and the other nonresidential elements of the Widgi Creek community to create new land for residential development. Both the Comprehensive Plan for Widgi Creek and the original Widgi Creek Master Plan prohibit any such new residential development. The Widgi Creek Master Plan and Conditional Use Permit from 1984 imposed the mandatory condition that a maximum of 210 residential units in designated areas would be allowed. Those units have been built out. The Master Plan required all remaining property outside those designated residential areas to be maintained as open space, including the 18 -hole golf course. The conditions of the Master Plan are binding on the developer and the county under Deschutes County Code 17.16.070. (The 1984 Master Plan approval is included as HOA Exhibit 1. The map for the Master Plan is Exhibit 2.) The Deschutes County Comprehensive Plan policy for Widgi Creek and Black Butte Ranch independently has a similar restriction: Designated open space and common area, unless otherwise zoned for development, shall remain undeveloped except for community amenities such as bike and pedestrian paths, park and picnic areas. Areas developed as golf courses shall remain available for that purpose or for open space/ recreation uses. (Comprehensive Plan 4.8.2.) Seeing as this policy applies to both Widgi Creek and Black Butte Ranch, allowing the developer's proposals here could have grave consequences for the residents of Black Butte Ranch as well. The Comprehensive Plan reiterates the same 210 number of maximum lots from the Master Plan. (The relevant parts of the Comprehensive Plan are included as HOA Exhibit 3.) The applicants have previously made admissions that the "Common Lot 18" area is designated open space. The area along the first fairway where the developer now wants to build has always been golf course area. The Hearings Officer found that the area was not even out of bounds on the golf course at the relevant time for this policy in 2001. This appeal gives the Board of Commissioners the opportunity to provide further clarification and interpretation regarding the intent of that Comprehensive Plan policy. It also would allow the Board of Commissioners to support and bolster the Hearings Officer decision if the Board agrees with it. The homeowners of Widgi Creek and Elkai Woods are hopeful that the Board's consideration of this matter will provide closure to their communities by confirming that those communities are built out and that the current golf course and community amenities remain protected under the Comprehensive Plan. Letter from Widgi Creek and Elkai Woods HOAs to Board of Commissioners Re: Appeal of Hearings Officer Decision by Larry Kine/Kine & Kine Properties February 29, 2016 Page 3 II. General History of Widgi Creek Planned Development. The Widgi Creek golf course and the Widgi Creek/Elkai Woods residential community was approved in 1984 as a destination resort, which at the time was a conditional use under the County's forest zones. The Master Plan was allowed because it complied with strict rules that required that 65% of the project had to be maintained as some form of open space. The golf course and common areas counted toward that ratio. The Master Plan was therefore approved on a condition that a maximum of 210 residential units could be built, with all the rest of the land—including the golf course, pool and amenities—being designated open space. (Master Plan approval, Exhibit 1, pp. 8, 12 and 15.) The development was planned around the 18 -hole golf course designed by noted architect Robert Muir Graves, who designed famous courses at Sea Ranch and Carmel, California, as well as the Big Meadow course at Black Butte Ranch. The original plan map of the course shows the blocks set aside for residential development. (Exhibit 2). Widgi Creek developed slowly in stages. The County approved several slight modifications to the Master Plan as that development continued, as indicated in the "Land Use History" in the Hearings Officer decisions. Several are important in this appeal. First, in 1996 the developer reduced the number of allowed townhome units from 103 to 86 as part of a compromise with the County over the overnight accommodation requirements originally imposed under the Master Plan. (HOA Exhibit 4). Second, in 1998 the County allowed the location of the pool area to be moved from the main clubhouse to what was platted as Common Lot 18 of Elkai Woods. (Exhibit 5.) The swimming pool and community amenities area were designed and intended to serve the Widgi/ Elkai residents, consistent with the Master Plan. (The developer's Burden of Proof and the County approval are Exhibits 6-7.) County approvals consistently required the developer to maintain it. (See Decision AD95-16, Exhibit 8.) Accordingly, the County made the developer sign Conditions of Approval Agreements requiring the developer to maintain the pool and amenities complex. (Exhibit 9.) The Conditions of Approval Agreements were recorded as covenants that run with the land, and are permanent except by "explicit release" by the County. The Hearings Officer found that the Conditions of Approval Agreements and Comprehensive Plan policy 4.8.2 (cited above) both prohibited any residential development of Common Lot 18. The pool and amenities were in fact provided to Widgi /Elkai residents by the developer when they bought their lots, through 2006. The lots within Elkai Woods were marketed to prospective purchasers by local realtors (including Mr. Kine at that time) with the representations that the community would be served by a swimming pool and community meeting center. (See Elkai Woods promotional materials, HOAs Exhibit 10-11.) The golf course fell into bankruptcy and was purchased at auction by the current owner, along with Letter from Widgi Creek and Elkai Woods HOAs to Board of Commissioners Re: Appeal of Hearings Officer Decision by Larry Kine/Kine & Kine Properties February 29, 2016 Page 4 Common Lot 18. However, that sale was still subiect to the Conditions of Approval Agreement. In 2001, the County initiated a process to qualify the Widgi Creek developments as an exception to state laws regarding forest lands on the grounds that the community was now "physically developed," and "for all practical purposes built out." The County adopted findings called "Exhibit H" at the time in support of what became Comprehensive Plan Policy 4.8.2 and the Resort Community Zone in Ordinance 2001-047/048. (Exhibit 12). The County's 2001 Findings adopted several important points from the Master Plan: First, the County recognized the limits on residential development of 210 units.' Second, it found "As illustrated in the Figures, Widgi Creek is for all practical purposes built out." (Exhibit , p. 52.) The attached Figures showed Widgi/ Elkai in its current formation with no other property designated for development. • Third, the County acknowledged that Widgi and Black Butte homeowners correctly believed that no significant changes would be allowed to the structure of their communities if the new ordinance and Comprehensive Plan passed "because both resorts are substantially built out and have their own internal controls for future development in accordance with approved master plans." The sole exception at Widgi was a single 8-9 acre Seventh Mountain maintenance yard that is now the Points West/Milepost One development that has filled out the 210 allowed units. (Exhibit 12, p. 59.) Based on these Findings, the County adopted policy 4.8.2 restricting development of open space, common area, and golf course area for both Widgi Creek and Black Butte Ranch. In 2004, after the Comprehensive Plan and Resort Community Zone were adopted, Hearings Officer Karen Green approved the plat for Elkai Woods Phase 6 that included Common Lot 18 by finding that it complied with the Master Plan. She noted that "the total number of lots is still 86" for the townhome component. (Her approval is HOA Exhibit 13.) She found that based on the Master Plan, "This will be the sixth and final phase of an 86 unit townhome development." The current owner bought the golf course properties later that year with notice of these findings. III. The Hearings Officer Correctly Denied Both Applications. 1 Although the Widgi developer agreed to reduce that number to 193 in 1996, the total number of residential units has clearly been reached or exceeded through the Points West/Milepost One development on the 8-9 acre piece of land that was previously marked as the Seventh Mountain Maintenance Yard on the Master Plan. Letter from Widgi Creek and Elkai Woods HOAs to Board of Commissioners Re: Appeal of Hearings Officer Decision by Larry Kine/Kine & Kine Properties February 29, 2016 Page 5 The Hearings Officer decisions are thoroughly reasoned based on the substantial evidence that was produced at the hearing, and is sound interpretation of County policy. A. Fairway One Proposal. 1. Fairway One Is Not Harmonious With the Widgi Community. The Hearings Officer denied the "Fairway One" application because it conflicted with the Comprehensive Plan's policy against converting golf course or open space areas to residential development. The Hearings Officer also found that the proposal—which would require cars from the new townhomes to back directly out into the single -lane portion of Seventh Mountain Drive—would be unsafe and not harmonious with existing development. The HOAs and individual owners have also pointed out a number of other basic design flaws with the proposal, including criticism from a noted golf course design professional (John Fought) that the proposed new homes would blatantly violate norms for safety setbacks to protect homeowners from stray golf balls. (HOA Exhibit 14-15.) It does not strain the imagination to see just how much the proposed first fairway townhomes would clash with the existing community. Widgi Creek and Elkai Woods are centered on the golf course and the main front driveway off of Century Drive. Putting nine zero -lot line townhomes would destroy the scenic appeal of that front entrance and devalue the entire Widgi community, not just the golf course. Photographs showing the high visibility of the proposed development area from Century Drive are HOA Exhibit 16. The photos emphasize that Widgi Creek was created through careful planning and design that is reflected in the golf course layout and landscaping. This application threatens the integrity of the plan for the Widgi community and would hurt the broader Deschutes County community by scarring the view along Century Drive. 2. The Comprehensive Plan Prohibits Any New Residential Development Outside Points West/Milepost One. The photos also demonstrate that the proposed area is in fact "golf course area'' and open space, as found by the Hearings Officer. Therefore, residential development is absolutely prohibited under Comprehensive Plan policy 4.8.2, which states: Designated open space and common area, unless otherwise zoned for development, shall remain undeveloped except for community amenities such as bike and pedestrian paths, park and picnic areas. Areas developed as golf courses shall remain available for that purpose or for open space/ recreation uses, (CP 4.8.2). Letter from Widgi Creek and Elkai Woods HOAs to Board of Commissioners Re: Appeal of Hearings Officer Decision by Larry Kine/Kine & Kine Properties February 29, 2016 Page 6 The entire proposed development area is "designated open space" under this policy because the Master Plan approval found that all property outside the proposed residential development blocks was designated open space. (Exhibit 1, p. 8, 12; Exhibit 2). The proposed Fairway One area is also "golf course area" under the Comprehensive Plan, as the Hearings Officer found. The applicant's golf course manager unambiguously testified that out of bounds markers were not placed on fairway one until the past several years, when the out of bounds was brought in. Before that, according to the applicant's own golf course rule book, the out of bounds boundary was the internal Seventh Mountain Drive front entrance. Accordingly, the Hearings Officer concluded that the area was part of the golf course area or was open space as of 2001, the effective date of the Comprehensive Plan policy, and could not be redeveloped.2 (A copy of the Widgi Creek Golf Course rule book is HOAs' Exhibit 17.) The Widgi Creek and Elkai homeowners bought homes in the subdivision based on the assurances reflected in the Comprehensive Plan and Master Planning documents that there were a fixed number of lots, and that open space and golf course would be protected as such. The HOAs ask the Board of Commissioners to affirm the Hearings Officer decision and to adopt the following important conclusion she reached about the Comprehensive Plan: Based on the foregoing analysis, the Hearings Officer finds that when Policy 4.8.2 was adopted in 2001, the board intended it to assure all Widgi Creek areas that were "physically developed"—everything except the two identified undeveloped areas—would continue in their then -current uses or would be developed with "community amenities" or "open space/recreation uses." I find that because the proposed subdivision site was not identified as within the 8-9 developable acres in Widgi Creek, the site was "developed as golf course," "open space" or "common area" and therefore subject to Policy 4.8.2. (Fairway One Decision, p. 28.) The 8-9 developable acres is now the Points West subdivision. The Hearings Officer's conclusion is entirely consistent with years of decisions interpreting the Widgi Master Plan and the text of the Comprehensive Plan. At the same time, it provides closure and protects the reasonable expectations the 2 Of course, the players' out of bounds does not necessarily define what is "golf course area." A golf course requires out-of-bounds areas as part of the golf course, and when balls land outside it costs the player a stroke. The out of bounds areas affect the rating of the golf course. The out of bounds areas are therefore still part of the overall golf course along with fairways, greens and tee boxes. Letter from Widgi Creek and Elkai Woods HOAs to Board of Commissioners Re: Appeal of Hearings Officer Decision by Larry Kine/Kine & Kine Properties February 29, 2016 Page 7 homeowners at Widgi Creek and Black Butte Ranch have always had about their communities that golf course and open space cannot be converted to new subdivisions. B. The Comprehensive Plan Prohibits Townhomes on Common Lot 18. The Hearings Officer denied the proposal to convert the Elkai swimming pool facilities to eight new townhomes because it was not part of the 8-9 acre exception area, and that it is "designated common area" under the same prohibitions of Comprehensive Plan 4.8.2. When the developer applied to plat the Elkai Woods portion of the Widgi Master Plan, he prominently labeled "Common Lot 18" on the plat (Exhibit 18) and explained that it was accessory to the Elkai Woods/ Widgi subdivisions. (See HOA exhibit 6, p. 6.) The developer also explained: "With the filing of site plans for the clubhouse expansion and amenities complex, the resort will finally be completed with all of the facilities and recreational amenities originally contemplated in the 1983 master plan." (Id. at p. 8.) Based on the developer's assurances the County allowed the plat, and the developer began selling lots by telling potential purchasers: "The entire site is thoughtfully planned to preserve the solitude you've come to expect from Widgi Creek. Resident townhomes on one side, vacation townhomes on the other. Al! have fairway views and easy access to a thoroughly inviting common area. The pool will become a natural gathering place in the summer, while the meeting facility is at your disposal year round." (Exhibit 10.) One of the realtors working for the developer at the time was Larry Kine, the applicant in these appeals. Besides finding that Common Lot 18 was clearly "designated common area" on the plat, the Hearings Officer also relied on the binding Conditions of Approval Agreements the County required the developer to sign in order to subdivide the property. (Exhibit 9.) It clearly bound the developer and his successors (including applicants) to maintain the recreational improvements including the swimming pool and community center on Common Lot 18, giving residents rights in that property. The Agreement was recorded, and the current owner (BHELM LLC) had notice of it when it purchased the golf course and pool area together. Letter from Widgi Creek and Elkai Woods HOAs to Board of Commissioners Re: Appeal of Hearings Officer Decision by Larry Kine/Kine & Kine Properties February 29, 2016 Page 8 With respect to Common Lot 18 the Hearings Officer again found that Comprehensive Plan Policy 4.8.2 preserved the status quo at Widgi Creek as of 2001 and prohibited residential development: I find that because the proposed subdivision site was not identified as within the 8-9 developable acres in Widgi Creek, was clearly designated "common area" on the Elkai Woods Townhomes Phase III Subdivision plat, and was shown on Figure 7 [of Ord. 2001-047] as developed "meeting facility and swimming pool," the proposed subdivision site is subject to the prohibition in Policy 4.8.2 against development with anything other than community amenities. (Common Lot 18 Decision, p. 25.) She also found that the Conditions of Approval Agreement the owner's predecessor signed separately Prohibited converting the recreational facilities to residential use, and that the proposal would not be harmonious with existing development given this history. Even if what was clearly marked "Common Lot 18" is not considered "designated common area" for policy 4.8.2, the marked common areas within the Widgi/Elkai development were also designated "open space" under the original Widgi Master Plan approval from 1984. The County Hearings Officer in that approval was very clear that everything except for the residential blocks was designated open space to meet the 65% requirement for approval. The applicants have previously admitted that Common Lot 18 is designated open space. Whether it is considered common area or open space, Common Lot 18 cannot be turned into residences under the Comprehensive Plan. IV. The Master Plan Still Applies. The Hearings Officer Decision provides a very persuasive interpretation of the Comprehensive Plan policy for Widgi Creek and Black Butte Ranch that protected the historical design of the communities by preserving the status quo as of 2001 when the policy was adopted. The HOAs support that finding and believe that it truly reflects the history behind the enactment of that policy. However, the Comprehensive Plan policy is not the only source for that conclusion. The 1984 Master Plan/Conditional Use Permit approvals and the subsequent decisions approving the phases of development under the Master Plan also provide restrictions on development at the resorts. Under DCC 17.16.070, that Master Plan remains binding on the developer and the County. The 2001 Comprehensive Plan Policy and the Resort Community Zone do not say that they are meant to repeal the prior Master Plan. Further, under the development code there are no implied repeals of prior decisions: DCC Title 18 does not repeal, abrogate or impair any existing easements, covenants, deed restrictions or zoning permits such as Letter from Widgi Creek and Elkai Woods HOAs to Board of Commissioners Re: Appeal of Hearings Officer Decision by Larry Kine/Kine & Kine Properties February 29, 2016 Page 9 preliminary plat and partition approvals, conditional use permits, nonconforming use permits, temporary use permits, special exceptions or building permits. (DCC 8.08.020, "Existing Agreements and Zoning Permits"). There is no reason that the Master Plan and Comprehensive Plan provisions do not coexist. In fact, the County used the Master Plan as criteria for approval for Elkai Phases V and VI years after the Comprehensive Plan policies were adopted. The Master Plan is compatible with the Hearings Officer's conclusions in this appeal about the Comprehensive Plan policy to limit development to the "built -out" completion of those developments as of 2001. The Master Plan provisions relevant to these applications would include the requirement that there are to be no more than 210 residential units. Although the developer then adjusted that to 193 in a subsequent approval, the issue is probably moot because of the Points West/Milepost One development on the 8-9 acre piece filling out the rest of the Widgi development. Assuming it applies, the applicant would have the burden to prove that the proposals comply with the Widgi Master Plan as well as with Comprehensive Plan policy 4.8.2, which the applicant simply cannot do. V. CONCLUSION The residents of the Widgi Creek and Elkai Woods communities, through their HOAs, are hopeful that the Board can in these appeals give additional support to the Hearings Officer decisions, and resolve that the Comprehensive Plan means what it says and now acts to bar any new residential development within the communities. Sincerely, MICHAEL H. McGEAN cc: Tia Lewis Barbara Munster, President, Widgi Creek HOA Carl Stromquist, President, Elkai Woods HOA Randy Bauman, President, Elkai Woods Fractional HOA 1 Hearings Officer/ Administrative Law Judge Courthouse Annex / Bend, Oregon 97701 / (503) 388-6626 File Number: Applicant: Request: Planning Staff Representative: Planning Staff Recommendations: Public Hearing: Burden of Proof: FINDINGS: DESCHUTES COUNTY HEARINGS OFFICER PUBLIC HEARING, FEBRUARY 28, 1984 FINDINGS AND DECISIONS MP -83-1 and CU -83-107 Michael T. Dugan SEVENTH MOUNTAIN .SALES CORPORATION An application for a Conditional Use permit to allow the expansion of the Inn of the Seventh Mountain destination resort and an application for a master plan to allow phasing of the development. Craig Smith Approval The public hearing was held in Room 106 of the Deschutes County Courthouse Annex on February 14, 1984, at 7:00 p.m. and continued for L.C.D.C. comment until 7:00 p.m. February 28, 1984. • In order to receive approval of this application, the applicant must satisfy the criteria and conditions as set forth in the Deschutes County Zoning ordinance. Most particularly Sections 4.080 (4) (5); 3.030, 3.040 and 6.030(5) of Ordinance No. 81-043, the Deschutes County Subdivision and Partition Ordinance. 1. Location: The subject property is located approximately five miles southwesterly of Bend off of Cascade Lakes Highway, and is further described as a portion of Tax Lot 200 in Sections 22 and 23, T18S, R11E. 1 - FINDINGS AND DECISIONS 2. Zone: The subject property is currently zoned SMR, Surface Mining Reserve and LM, Landscape Management. 3. Comprehensive Plan Designation: The Deschutes County Comprehensive Plan Map currently designates the property as Forest and Landscape Management. 4. Site Description: The subject property is approximately 237 acres in size which the applicants are acquiring from the United States Forest Service in a land trade. The~ -Forest Service has co-signed the application. The Cascade Lakes Highway borders the property to the west. The Inn of the Seventh Mountain destination resort is adjacent to the property to the south and west. Meadow Camp Road currently passes through the property until the road falls below a rimrock outcropping. The property is bordered to the east by Forest Service Land which will serve as a buffer between the property and the Deschutes River. The rimrock outcropping, at its approximate peak, serves as the basic property line along the east side. The.subject property has a varied, mostly level, topography and ia\��vered with Ponderosa pine and a variety of brush. The most densely covered area is southerly, toward the Inn of the Seventh Mountain. S. Surrounding land use: The surrounding property is currently zoned F-2, Forest Use, SMR, Surface Mining Reserve, LM, Landscape Management, and across the river the Deschutes River Woods Subdivision is zoned 8R-10, Rural Residential. The subject property is located outside of a designated winter deer range as shown in the resource element of the Comprehensive Plan. The applicant is proposing an overall density of approximately 1.1 units per acre which would include approximately 90 single family residential lots and approximately 100 condominium units. The upplicaot, is alsm.zegoeatiog flexibility in determining the specific number of residential and condominium untis and at the hearing requested a maximum number of 100 single family residential lots. The applicant is proposing anl8 hole golf course and club house which will include a swimming pool, tennis courts and restaurant. Phase One oE the development will be the club house, the first 9 holes .of the golf course, 50 condominiums and 27 residential lots which would be completed in 1985. The remaining phase would be completed by 1988. The proposed devlopment would reserved by an expansion of the existing Seventh Mouintain sewage treatment facility and a community water system will be developed. All utilities will be located underground. Access to each unit in the development will be provided by private roads mautaioed by an owners' association. The applicant 2 - FINDINGS AND DECISIONS will relocate the Meadow Camp Road as shown on the Master Plan. The road is proposed to be constructed similar to the current cindered road. The proposed development is rated high by the Deschutes County Wildfire Hazard Rating System. The applicant is proposing to develop fire breaks around structures by tree thinning, pruning, spacing, removal, reductions of dead fuels and changes in types of vegetation. In addition, the golf course will provide a large fire break. The sujbect property is designated a low timber productivity rating in the Resource Element of the Deschutes County Comprehensive Plan. The Deschutes National Forest Plan currently identifies the subject property as visual management, however, the proposed plan designates the property as intensive recreation. The Landscape Management designation in the zoning ordinanace would virtually prohibit any intensive commercial forest activity. The applicants have also applied for a zone change on the SMR, Surface Mining Reserve, to F-2, Forest Use, to make all 237 acres the same zone classification. The property has recently seen an increase in use by wildlife. Deer and elk have been seen on the property. I personally, during the site visit prior to the public hearing, observed elk and deer tracks and droppings. There were no well defined deer or wildlife trails. The Oregon Fish and Wildlife Department has submitted a letter opposing the project. The primary opposition stems from their concern on the impact on the wildlife. The proposed 18 hole holf course may act as an attraction to both deer and elk, which may cause some damage to the grounds, turf and vegetation. There was testimony at the hearing from Mr. Jim Bussard, who is associated with Black Butte Ranch, another destination resort in Deschutes County with two 18 hole courses in an F-2 zone, that a golf course is a compatible use with wildlife. The other concern is of an increase in highway deer kills and with dogs chasing the wildlife. Representatives for the applicants have indicated that they will have restrictions in the deeds regarding domestic pets, and will place more deer crossing signs along the highways adjacent to the development. The Deschutes County Comprehensive Plan cites the Inn of the Seventh Mountain as an example of a destination resort. It also cites Black Butte Ranch, a destination resort, as a conditional use in an F-2 zone. Section 1.030 (28) of PL -15 defines "Destination Resort" as does the year 2000 Comprehensive Plan at page 7. During adoption processes of both these documents, the Inn of the Seventh Mountain and Black Butte Ranch were both in existence. Both are cited as examples. I do not find there to be any conflict in these definitions. Even though the Comprehensive Plan definition omits reference to permanent residential dwellings, the implementing ordinance, PL -15, does provide for the inclusion of permanent residents. 3 - FINDINGS AND DECISIONS The Inn of the Seventh Mountain is now basically self-contained, providing facilities and is comprised of privately owned condominiums . There are two restaurants, a ski shop, and other limited commercial enterprises. The proposed development will be integrated into the adjacent destination resort by roads, paths and trails. The area is presently classified in the Forest Land Management Plan as Intensive Recreation -private or public- and mostly landscape, Management Zone. The area is considered below average. for timber productivity. CONFORMANCE WITH THE COMPREHENSIVE PLAN AND IMPLEMENTING ORDINANCES: Economy Policy No. 1 of the Economy Section of the Deschutes County Comprehensive Plan states: 1. The importance of tourism to the local economy is well known, but there also exists considerable potential for strengthening and improving the segment of the economy. The County shall asist*in the development of a long range plan to encourage tourism (inlcuding destination resorts) and recreation locally... 2. Private commericial activities consistent with other County policies which enhance tourism shall be encouraged by the County. Mr. Warren Klug, the General Manager of the Inn of the Seventh Mountain, spoke toward this Comprehensive Plan policy. The obvious impact of his statement is that this development will enhance tourism and will be an economic benefit to the community. Not only tourism, as a long range benefit, but construction benefits as well in the short range. Mr. Jim Bussard also spoke toward this policy. His conclusion is that the Inn of the Seventh Mountain expansion will provide economic protection for the community. I find that the proposal is consistent with the Comprehensive Plan Economic Section. Policy No. 5 of the Rural Development Section of the Comprehensive Plan states: Destination resorts and dude ranches are important elements of the local economy. Densities will be determined upon the merits of the proposal. These developments shall not be permitted as exclusive farm use districts and only under certain conditions in forest districts (see Forest Lands Chapter). They may be allowed in other rural areas if compatible with the environmental capabilities of the site, near existing transportation and utility facilities, consistent with 4 - FINDINGS AND DECISIONS the rural character of the area, and unlikely to create undue public service burdeps7 Policy No. 4 of the Forest Lands Section of the Comprehensive Plan .states: Destination resorts shall be permitted as conditional uses in F-2 and F-3 areas upon showing that the land where the resort is to be established has no significant commercial timber potential and that the resort activities are sufficiently buffered so that they will not adversley affect timber harvesting on adjacent or nearby lands. As previously stated, the proposal will be integrated with the existing 'Inn of the Seventh Mountain. This will allow the development with an increase in the current public water and sewer system. The other public services can be provided, according to the applicants, without undue public burden. Additionally, the proposaldemonstrates that there will be no interference with timber harvesting or commercial forest practices or adjacent lands. I find that the applicant has demonstrated conformance with the Comprehensive Plan. Conformance to Section 4.080 (4) of PL -15. This Section provides: Limitations on Conditional Uses. The following limitations shall apply to conditional uses permitted by this section. (A) Conditional uses permitted by this section may be established on non-productive timber lands upon a finding by the Hearings Officer that each use: (1) Is consistent with farm and forest uses, and is consistent with the intent and purposes set forth in the state Forest Practices Act, the Comprehensive Plan and this Ordinance. The property is identified in the Comprehensive Plan Resource Element as being of low timber productivity by soil association. This would be consistent with the type of trees that are currently existing on the property. Furthermore, the U. S. Forest Service, Deschutes National Forest Plan Alternative E -F, which has been adopted by the Forest Service, identifies the property as intensive recreation. The plan states as follows; These areas will provide a wide variety of recreation opportunities including but not limited to activities dependent on various intensities of development. Sophisticated facilities and sites and sounds of man may be evident and often essential to provide the desired recreation experience. Generally, higher concentration of visitors may occur around 5 - FINDINGS AND DECISIONS developments. Fewer numbers will occur outside developments but encounters between visitors may be frequent. Developments can include resorts, campgrounds, boating facilities, swim sites, ski areas, picnic areas, viewpoints and interpretive sites. The area has further been identified as a groun III -C land ownership. That is why the Forest Service is willing to trade this parcel for land that immediately is adjacent to the Deschutes River near the Wickiup Reservoir. Therefore, the use of this property as a destination resort would be not only consistent with the Deschutes County Comprehensive Plan, but also the Deshcutes National Forest Plan'. The property is further buffered by the Cascade Lakes Highway and Deschutes River so as to prevent its interference with any existing forest practices in the area. Section 4.0800 (4) (A) (2) provides: 2....Not interfere with accepted forest management practices and farming uses on adjacent lands devoted to farm and forest use... As set forth above, the fact that the development has been buffered by the Cascasde Lakes Highway and Deschutes River will allow its development without interfering with accepted forest management practices on adjacent lands. Section 4.080 (4) (A) (3) provides: 3....Does not alter the stability of the overall land use pattern... The property itself would not be suitable for any type of intensive forest management bacause of the landscape management overlay zone as well as its location adjacent to the Deschutes River. Its development as a destination resort will, therefore, not alter the stability of the overall land use pattern of the area. Most of the adjacent property has been committed to intensive public use because of the Deschutes River and Inn of the Seventh Mountain. Section 4.080 (4) (A) (4) provides: ....Is situated upon generally unsuitable land for timber production and the production of farm crops and livestock, considering the terrain, adverse soil or land conditions, drainage and flooding, vegetation and location and size of tract... As set forth above, the property is identified as having low productivity by soil association. Furthermore, the location of 6 - FINDINGS AND DECISIONS the proeprty between ihe Deschutes River and Cascade Lakes Highway makes it impractical to intensively manage the property as forest tract. Section 4.080 (4) (&) (5) provides: ....Does not constitute an unnecessary fire hazard and provide for at least a minumum of fire safety measures in planning desgin, construction and operation. The construction of the golf course will provide natural fire breaks. The Bend Fire Department has agreed to provide fire suppression services. I find that the applicant has met the criteria in Section 4.080. CONFORMANCE TO SECTION 8,0505 (19): A. Such uses may be authorized as a conditonal use only after consideration of the following facts: (1) Proposed land uses and densities: Applicant proposes to develop a destination resort on 236 acres immediately adjacent to and north of the existing Inn of the Seventh Mountain condominiums and commercial areas. It will be a total of 210 units. One Hundred Twenty units will be built as condominiums or townhouses on a total of 16 acres. There will be an additional 30 one-third to one-half acre recreation bmmeaitea. The overall density will be 1.14 units per acre. In addition to the 210 recreational untis, the applicant proposes to develop a golf club house with restaurant and meeting rooms, 4 tennis courts, a swimming pool with sauna and whirlpool, bike paths, horse trail, ponds and an 18 hole public golf course. (2) Building types and intensities: ,Aa set forth above, 90 units will be recreational bomeaitea one-third to one-half acres in size, generally abutting the proposed 18 hole golf course. The 16.acres will be devoted to a maximum of 120 coodom�oioma with a density of 7.5 units per acre. The only other building will be associated with the clubhouse and lodge at the entrance to the destination resort and immediatley adjacent to the No.1 and No, 10 holes of the proposed golf course. (3) Circulation pattern: The applicant proposes a main entrance from Cascade Lakes Highway as shown on the attached Master Plan. A secondary access will be provided in the southern portion of the development into the existing Inn of 7 - FINDINGS AND DECISIONS the Seventh Mountain development. This will provide access for the owners and guests of the Inn of the Seventh Mountain as well as the restaurant and lounge. There is also emergency access provided from the development at Meadow Camp Road in the event of fire or other natural disasters. These access points have been designated on the Master Plan. (4) Parks, playgrounds, open spaces: The applicant first intends to develop an 18 hole public golf course with associated ponds as shown on the Master Plan. In addition, there will be a series of bike paths and a proposed horse trail. The lodge area will include four tennis courts and a swimming pool. All other properties not platted as lots or proposed condominium areas will be maintained as open space and maintained in their natural state. (5) Existing natural Features: The property is currently undeveloped and lies between the Deschutes River and Cascade Lakes Highway. The development has purposely been set back from the Deschutes River so that any structure 3' high at the property line will not be seen from the Deschutes River and adjacent campground areas. The Meadow Camp Road will be relocated in accordance with an agreement with the U. S. Forest Service to continue to provide public access. There are no other significant natural features existing on the property. (6) Environmental, social and economic impacts likely to result from the development, including impacts on public facilities such as schools, roads, water and sewage systems, fire protection, etc: The property is proposed as a recreational development and there should be little, if any, effect on the existing school district. It is not anticipated that there will be many permanent residences on the property, especially permanent residences with school aged children. There will be benefit, however, to the existing tax rates of the school district because of the anticipaed increase in value if the property is developed. The roads within the development are private roads and will be maintained by an owners' association. The acess to the property from Cascade Lakes Highway will be built by the developer in accordance with the agreement with the U. S. Forest Service. The sewage system will be provided by an extension of the existing Inn of the Seventh Mountain sewage treatment facility and their service district. In discussions with the engineer for the 8 - FINDINGS AND DECISIONS project, Century West, the existing treatment facility can be expanded to handle the proposed 210 recreational units, associated lodge and club house. Water will be either from wells on the property where there is a history of being able to provide necessary water flows for this type of development, or possibly through an extension of the City of Bend water facility. This is still subject to further engineering. It is anticipated that the development will seek inclusion with the Deschutes Rural Fire Protection District No. 2. In the meantime, fire protection will be provided by the Oregon Department of Forestry and the U. S. Forest Service. (7) Effect of the development on the rural character of the area: Every effort has been made to minimize the impact this development would have on the Deschutes River and its existing camprgounds. As set toctb`above' anything 3' high on the property line would not be seen from the Deschutes River and its picnic areas. The Meadow Camp Road is being relocated so as to provide continued public access to the Deschutes River. Currently the property lies between Cascade Lakes Highway and Deschutes River, and as such has natural borders between adjoining lands currently designated recreational by the D. S. Forest Service master Plan. (8) Proposed ownership pattern: The property is currently owned by the U. S. Forest Sevice. However, the U. S. Forest Service and Moana Corporation have agreed to a land exchange. If the property is developed, the individual recreational homesites will be sold by fee simple interests. The condominiums will be developed in accordance with Oregon Condominium Act, and the underlying title to the proeprty will vest in the condominium association. The golf course, lodge, tennis courts and swimming pool will be retained by the developer as a developer's area in accordance with the covenants, conditions and restrictions of the proposed development. (9) Operation and maintenance proposal (i.e., howmeowners' association, condominium, etc.): The developer will form a howeowners' association with the responsibility for the maintenance of the interior roads and common areas of the development. The developer will be responsible for the maintenance and operation of the lodge, tennis courts, swimming pool and 18 hole golf course. Each condominium will have a 9 - FINDINGS AND DECISIONS separate condominium association yith responsbility for the maintencance of the common areas immeditaely adjacent to the condominiums as well as for the long term maintenance responsibilities of each condominium unit. (10) Waste disposal facilities: As set forth above, the sewage treatment facility will be provided through an extension of the existing Inn of the Seventh Mountain sanitary treatment facility. (11) Water supply system: The water supply system will be provided by individual wells located on the property. There is a history of wells in the area which demonstrate adequate water supply. An alternative might be an extenison of the City of Bend water supply system. This is subject to further engineering. ' (12) Lighting: The lighting scheme for the proposed development is for low level diffused lighting to minimize any glare from the pcojebt, Architectural guidelines will be established for the development of individual properties which will likewise provide for low level and screened lighting to prevent any unnnecessary glare. The concept is to develop a lighting system consistent with what has been done at Sunriver and Black Butte Ranch. (13) General timetable of development: The applicant proposes to develop the first 9 holes of the golf course and the first 27 recreational homesites in 1984 and 1985. The 6 acre condominium site adjacent to the lodge will be the next extension, and is anticipated to begin in 1985. Beginning in 1986, the developer will extend the golf course to include the second 9 holes and begin development of the next lots, 28 through 90, as well as the next condominium phases. The actual time table with respect to this development will depend upon the market place and the number of lots and condominiums that can be sold each year. Section 3.050 (19) (8): The conditonal use may be granted upon the following findings; (1) Al]. subdivision restrictions contained in County Ordinance PL -14 shall be met: 10 - FINDINGS AND DECISIONS The applicant will, o' n approval of the Master Plan; submit to the County a tentative plan for the development of the first 27 recreation bomwoiteo. All subdivison criteria will be complied with. (2) The proposed development conforms to the Comprehensive: Page 50 of the Deschtues County Year 2000 Comprehensive Plan specifically identifies destination resorts as being important elements of the local economy and that these developments can be permitted under certain conditions in forest districts. They may be allowed if compatible with the environmental capabilities of the site and if they are ,near existing transportation and utility facilities consistent with the rural character of the area unlikely to create undue public. burdens. The applicant has attempted to set forth the fact that this is near existing transportation by reason of being adjacent to Cascade Lake Highway. The utility facilities have already been provided to Inn of the Seventh Mountain and provide a natural extension. It has also been pointed out that there beSbeen an attempt to minimize impact on existing rural areas and in particular public use of the Deschutes River. The Comprehensive Plan, on page 151, further permits destination resorts as conditional uses in F-2 and F-3 zones, if the land where the resort is to be established has no significant commercial timber potential and the resort activities are sufficiently buffered so that they will not adversely affect timber harvesting on adjacent or nearby lands. As set forth above, the property is bounded on one side by the Deschutes River and on the other side by the Cascade Lakes Highway. This will not in any way adversely affect timber harvesting on adjacent lands. Furthermore, the property to the north of Meadow Camp Road has not been identified as commercially feasible timber by the U. S. Forest Service's recent Master Plan. (3) Any exceptions from the standards of the underlying district are warranted by the design and amenities incorporated in the development plan and program: The applicant has attempted to prove that an exception is warranted to the underlying density standards of the area and that the applicant has been mindful of the carrying capacity of the property in outlining any proposed recreation homesites and condominium areas. (4) The proposal is in harmony with the surrounding area or its potential future use: The proposal is in harmony with the surrounding areas since it complements the existing Inn of the Seventh Mountain development. This will allow greater summertime utilizaton of the entice Seventh Mountain area for recreational and tourist related uses, including convention facilities. 11 - FINDINGS AND DECISIONS (5) The system of ownership and the means of developing, preserving and maintaining open space is adequate: An owners' association will be formed for the maintenance of the interior roads and the developer has a history at Seventh Mountain of exemplary management capabilities. (6) That sufficient financing exists to assure the proposed development will be substantially completed within four (4) years of approval: The applicant has submitted documentation tending to show that the Moana Corporation has been actively engaged in major developments for many years. The history of the corporation demonstrates that there is sufficient financial backing to assure substantial completion within the four (4) year time limitation. (7) Sixty five percent of the land is to be maintained in open spaces. .. More than 65 percent of the properXy has been maintained in open space, which includes the proposed 18 hole golf course. (8) Adequate provision is made for the preservation of natural resources such as bodies of water, natural vegetation and special terrain features: The applicant has made provisions to protect the Deschutes River by not allowing any residential or commercial development to occur along the rim. The only developemot immediatley adjacent to the rim will be the golf course itself. CONFORMANCE WITH SECTION 3.030 OF ORDINANCE NO. 81-043, THE DESCHUTES COUNTY SUBDIVISION/PARTITION ORDINANCE: This Section provides: MASTER DEVELOPMENT PLAN. An overall roaster development plan shall be submitted for all developments affecting land use under the same ownership for which phased development is contemplated. The master plan shall include, but not be limited to, the following elements: 1. Overall development plan, including phase or unit sequence: The applicant proposes to develop the first 9 holes of golf and the first 27 recreation homesites in 1984 and 1985' Beginning in 1985, the applicant will begin development of the condominium site immediately south of the proposed lodge. Beginning in 1985, the developer will also begin clearing the development of the second 9 holes of golf. The third phase of 12 - FINDINGS AND DECISIONS ~ development will be the completion of lots 25 through 70 beginning in 1986. In 1987, the remainder of the recreation home sites 71 through 90 will be completed. The 6 acre condominium site will be developed in a phased sequence beginning in 1986 with projected completion in 1988. 2. Show compliance with the Comprehensive Plan and implementing land use ordinances and policies: The applicant has set forth above its position with respect to compliance with the Comprehensive Plan and the Conditional Use Permit Criteria of Section 4,085 and 8.050 (19) (d). 3. Schedule of improvements, intitiatioo and completion: In Paragraph One above the Applicant has set forth the scheduled dates of intitiation and completion of the various phases, to the best of applicant's ability at this time. Actual completion dates will, of course, depend upon the market. However, it is anticipated that the project can be fully completed within four years. 4. Overall transportation and traffic pattern plan: The applicant has described the overall transportation and traffic pattern plan above and will provide access off Cascade Lakes Highway and secondary ingress and egress through the existing Inn of the Seventh Mountain development. Emergency acess routes have been provided from the development to Meadow Camp Road in the event of fire. 5. Program timetable projection: See above. 6. Development plans for any common elements or facilities: The applicant does intend on completing an 18 hole public golf course. There will also be a clubhouse and lodge with restaurant with primary emphasis on providing services for golfers and the immediate guests and owners of the Seventh Mountain Golf Village. The primary commercial core, so to speak, will remain at Inn of the Seventh Mountain. There will be an additional 4 tennis courts and a swimming pool provided for the use of owners and guests of the Seventh Mountain Golf Village. 13 - FINDINGS AND DECISIONS 7. If the proposed subdivision has an unknown impact upon adjacent lands or lands within the general vicinity, the Hearings Body may require a potential street development pattern for adjoining lands to be submitted together with te tentative plan as part of the master development plan for the subejct subdivision: The property will have access off Cascade Lakes Highway which does have the capability of handling the traffic that hwould be completed. There is no othe rprivate development except for th eventual expansion of Mt. Bachelor. However, this area will provide additional accomodations for the projected increase in skiers at Mt. Bachelor. CONFORMANCE WITH SECTION 6.030 (5) OF ORDINANCE NO. 81-043. Section 6.030 (5) of Ordinance No. 81-043, the Deschutes County Subdivision/Partition Ordinance states: Solar Acess Performance Standard. As much solar access as feasible shall be provided each lot in every new subdivision, considering topography, development patterns, and existing vegetation. The lot lines of lots, as far as feasible, shall be oriented to provide solar access at ground level at the southern building line two hours before and after'the solar zenith from September 22 to March 21. If it isnot feasible to provide solar'access as above stated, but otherwise feasible, it shall be provided at 10' above ground level at the southern building line two feet above ground level at the'southern building line two hours before and after the solar zenith from September 22 to March 21, and three hours before and after the solar zenith from March 22 to September 21. This solar access shall be protected by solar height restrictions on burdened properties for the benefit of lots receiving the solar access. If the solar access for any lot, either at the southern building line or at 10' above the southern building line, required by this performance standard is not feasible, supporting information must be filed with application. Exhibit No. 19 of the Hearings Officer's file demonstrates that 85 percent of the proposed units have solar access. The Master Plan provides many excellant examples of solar access site design features. The main problem areas are in the southern portion of the parcel where it is likely that solar access will be precluded to most of the lots because of dense, tall vegetation patterns. In general, the applicant has complied with this ordinance. 14 - FINDINGS AND DECISIONS- DENSITY: The density of the proposal will be less than of the similar developments, such as Black Butte Ranch and Sunriver, while providing similar amenities. The maximum density of 210 units, or approximately 1.1 units per acre, is reasonable for this site while still providing for the recreational amenities. The intent is to manage the proposal single family ceaideuceo.as recreational uses for non-residents. There will be some permanent ceaidences. However, deed restrictions will be imposed which should tend to restrict the use of the single family residences as recreational uses. DECISION: The Master Plan and Conditional Use permit are approved with the following conditions. 1. The total number of residential units shall not exceed 210 units. 2. The total number of single family residential lots shall not exceed 95 lots. 3. The total number of condominium untis shall not exceed 120 units. 4. Each subdivision phase shall receive tentative and final approval as required in Ordinance No. 81-043/ 5. Each condominium and recreational development shall receive site plan approval prior to issuance of any building permits. 6. The first phase, will consist of a maximum of 33 family residential lots and supporting facilities, a maximum of 50 condominiums, the clubhouse and 9 holes of golf course shall be completed by the end of 1985. The remaining phase shall be completed by the end of 1988. 7. The sewage treatment plant shall meet all requirements of the Department of Environmental Ouality, 8. The applicant shall sign a contract with the Bend Fire Department. Fire hydrant spacing and fire flows shall also be approved by the Bend Fire Department. 9. The developer shall construct a standard left turn refuge and right turn deacceleration lane on the Cascade Lakes Highway for access to the development. Length of left turn storage shall be determined at the time of design review by the Oregon State Highway Division. This shall be completed at the completion of phase I and before phase II is commenced. 15 - FINDINGS AND DECISIONS 10. The applicant shall document the exact location, design, and construction of hiking, horse and bicycle trails which shall be approved by the Forest Service and Planning Division prior to construction. 11. The Seventh Mountain Sales Corporation shall have clear title to the subject property prior to any construction. 12. The interior road design and improvements shall meet all requirements of the Deschutes County Public Works Department. 13. The water system shall meet all requirements of the State Health Division. 14. A complete plan and timetable for dealing with fuel -fire breaks shall be submitted with each site plan and tentative plan. THIS DECISION BECOMES FINAL 15 DAYS FROM THE DATE MAILED, UNLESS APPEALED. DATED, this 8 day of March, 1984. MICHAEL T. DUGAN Hearings Officer MTD/jeh cc: file BOCC City of Bend Planning Director Redmond City Planning Director Deschutes County Planning Director Seventh Mountain Sales Corporation Bob Lovlien 16 - FINDINGS AND DECISIONS 2 I ; 3 Rrioci IA. 4rowth ehapter frufgewitiAt Sectiow 4 2 • Background A Resort Community is characterized as an unincorporated communfty that is established primarily for, and continues to be used primarily for, recreation and resort purposes. It includes residential and commercial uses and provides for both temporary and permanent residential occupancy, including overnight rodging and accommodations. In the fall of 1994 the Oregon Land Conservation and Development Commission adopted a new administrative rule, OAR 660. Division 22, entitled Unincorporated Communities. This Rule provided guidelines for defining and regulating areas with urban style growth outside of urban growth boundaries. As part of periodic review Deschutes County updated the Comprehensive Plan and implementing zoning regulations for Black Butte Ranch and the lnnlWidgi Creek to comply with the rule. Black Butte Ranch and lnn of the 7 Mouncain/VVid 'Creeknnetthedmfinitionof"resort community" because they have historically developed with a mixture of residential and recreation or resort amenities. Commercial -type uses also exist, such as the restaurant and stables. Other retail operations, such as the golf pro shops and retail sales at the tennis shop are associated with specific recreation activities and are not designed as stand alone retail operations intended by themselves to attract the traveling public to Black Butte Ranch or Inn of the 7th MountainlWidgi Creek. Black Butte Ranch Background Black Butte Ranch is located in the northwestern portion of Deschutes County, eight miles west of the city limits of Sisters. Black Butte Ranch is in the Indian Ford Creek watershed, a tributary to Whychus Creek, itself a tributary to the Deschutes River, and is surrounded by lands within Deschutes National Forest. Since the late 1000s Black Butte Ranch has been a cattle ranch. Cattle operations continue today. Black Butte Ranch includes 1,830 acres developed in the early 1 970s as a planned residential development with both permanent and vacation homes on 1,253 lots and three separate condominium areas. Recreation amenities include two |8-ho|e golf courses, four swimming pools, 23 tennis courts, horse stables, a sports fie|d, basketball courts and trails for bicycling, 'mng and cross country skiing. Conference rooms, a restaurant, lounge and property sales in the Main Lodge, a general store and pro shops at both golf courses provide additional amenities for residents, guests and visitors. Black Butte Ranch allows public access to its restaurant, golf courses and horse scab|es, but is primarily oriented to its year-round residents and seasonal guests. Black Butte Ranch is considered by many people to be a"destinadon resort", however development at Black Butte Ranch preceded the adoption of Statewide Goal 8 and the County's mapping of lands for the siting of destination resorts. Approximately 96 percent of the area within Black Butte Ranch Development of Black Butte Ranch began in 1970 and the first subdivision plat within Black Butte Ranch was filed in 1970. In 1973. when the County first adopted a zoning ordinance /PL' SJ and comprehensive plan, the area identified as Black Butte Ranch, although smaller than today, was zoned "Planned Development" and designated as a "Destination Resort" on the comprehensive plan map. In 1979 the County adopted revised zoning and comprehensive plan maps. In 1992 Black Butte Ranch was designated as a rural residential exception area on the comprehensive plan map. Black Butte Ranch was zoned Rural Residential (RR'10). and was designated "Destination Resort" on the comprehensive plan map. The population of Black Butte Ranch is difficult to ascertain due to the large number of vacation and second homes within the community that are occupied for only part of the year. In 2001, the Black Butte Ranch Association estimated the number offull-time, year-round residents at 337 persons. During the peak tourist season, the popu|adpn, including guests who do not own property but are renting residences within the community, is estimated to rise to 5,000 persons. Black Butte Ranch operates both a community sewer and water system that are in place and serve the existing development. Black Butte Ranch also has its own fire and police departments. Land Use The Black Butte Ranch community boundary includes a total of 1.912 acres consisting of: 1) 1,830 acres including the main resort development, the resort's recreational anmenides, and the residential areas, and 2) 82 acres located contiguous to the northwest corner used for industrial uses in support of Ranch operations. The community boundary abuts Highway 20 on the northeast. National Forest Service lands and private landholders bound it on the south and west. The predominant land use in Black Butte Ranch is residential, the majority of which is single- family residential development. Howeer, since Black Butte Ranch waoriginally developed as a planned community, a number of other uses exist which make Black Butte Ranch a community that is somewhat self-reliant. Uses that support the residential components include a commercial core, which contains a variety of retail businesses developed in a pedestrian mall setting, as well as a business park. A significant component of development in Black Butte Ranch includes recreation amenities such as golf courses, and resort facilities, including a |odgw, meeting facilities and a restaurant. A fire station and public works facilities for sewage treatment and water delivery have also been developed. The Black Butte Fire Department serves all areas within the boundary. Utility services will continue to be provided in the current manner. Inn of the 7th MountainlWidgi Creek Background The lnn of the Seventh Mountain and Widgi Creek Golf community are located approximately five miles southwest of the Bend Urban Growth Boundary on Century Drive. They are both bounded by the Deschutes River to the south. The Inn ofthe Seventh Mountain (inn) has been developed since the late 1960s and has historically been considered to be a stand-alone resort community with overnight lodging and recreation facilities for tourists. It has 230 condominium units, spread among 22 buildings. The initial boundary was estabtished in 1972 and encompasses 22.65 acres. The Inn includes horse stables, tennis courts, golf course, skating rink, swimming pools and other recreation amenities, and a restaurant, meeting rooms and multi -story lodging units for resort guests. Many of the dwelling units at the Inn are occupied seasonaily but some residences are year round. Commercial uses open to overnight guests and the public include the restaurant, skating rink and golf course, guided raft trips on the Deschutes River and a retail/rental sport shop. Widgi Creek was approved in 1983 as a 237 -acre expansion to the lnn and includes a golf course with surrounding residential lots consisting of 107 for single-family dwellings and 103 for condominium units. The use of the site as a destination resort was initiateto implementation of the statewide planning goals in Deschutes County. Upon implementation of the statewide planning goals, the property was desinatedas"forest"incornp|iancevvithC]oa|4.andthmusecondnuedno be permitted as a destination resort. However, in 1993 HB 3661 prohibited destination resorts as a use in the forest zone except as allowed under Goal 8. This property was not approved as a Resort Community until the year 2001. At that time a "built and committed" exception based on Statewide Planning Goal 2 was taken for the entire |nn/VV|dDi community. Almost all of the residential uses at the Inn of the Seventh Mountain cater to tourist accommodations. During the peak tourist season, the popu|ation, including guests who do not own property but are renting residences within the connnnunity, is estimated to be approximately 500 people. In 2001. the number of full-time and part-time residents at Widgi Creek was approximately |ZU, consisting of 80 single-family residents and 39 condo residents. Since there are only four condo units available for rental, there is no significant increase in the population during the peak tourist season. As currently planned, when the development is fully built out, the population will increase to a total of 200 full-time and part-time residents distributed in 107 single-family homes and 46 condominium units. The Inn/Widgi sewer service (except approved on-site septic systems) and fire protection are provided by the City of Bend, water by on-site vve||s, security service by the |nn/Widgi Resort Community and police services by Deschutes County Sheriff. Land Use The Inn of the Seventh Mountain/WidgiCreek communiboundary includes 260 acres (23 for the Inn and 237 for Widgi Creek). The property is used for recreational annenidex, rental and residential units. The western boundary is Century Drive. The southern boundary is generally the Deschutes River canyon. The entire resort community is bordered by the Deschutes National Forest. The predominant land use at the Inn is resort use with overnight lodging and recreational facilities for tourists, in addition to a restaurant, meeting rooms and a retail/rental sport shop. The predominant land use is residential, with single-family residential development and condominium units, in addition to a golf course. Sectwvt, 4 2 mit.'1,t PoLiztes Goals and Policies No goals have been defined for Black Butte Ranch or Inn of 7th Mountain / Widgi Creek Resort Communities General Resort Community Policies Policy 4.8.1 Policy 4.8.2 Policy 4.8.3 Policy 4.8.4 Policy 4.8.5 Land use regulations shall conform to the requirements of OAR 660 Division 22 or any successor. Designated open space and common areaunless otherwise zoned for development, shall remain undeveloped except for community amenities such as bike and pedestrian paths, park and picnic areas. Areas developed as golf courses shall remain avaflable for that purpose or for open space/recreation uses. The provisions of the Landscape Management Overlay Zone shall apply in Resort Communities where the zone exists along Century Orive. Highway 26 and the Deschutes River. Residential minimum lot sizes and densities shall be determined by the capacity of the water and sewer facilities to accommodate existing and future development and growth. The resort facility and resort recreation uses permitted in the zoning for Black Butte Ranch and the Inn of the Seventh Mouncain/VYidgi Creek shall serve the resort community. Black Butte Ranch General Policies Policy 4.8.6 County comprehensive plan policies and land use regulations shall ensure that new uses authorized within the Black Butte Ranch Resort Community do not adversely affect forest uses in the surrounding Forest Use Zones. Policy 4.8.7 The County supports the design review standards administered by the Architectural Review Committee. Policy 4.8.8 Residential, resort and utility uses shall continue to be developed in accordance with the Master Desifor Black Butte Ranch and the respective Section Declarations. Policy 4.8.9 Industrial activities, including surface mining, shall only occur in the area zoned Black Butte Ranch Surface Mining, Limited Use Combining District (Black Butte Ranch SM/LU) located in the northwest corner of Black Butte Ranch. Policy 4.8.10 Employee housing shall be located in the area zoned Black Butte Ranch- Utility/Limited Use Combining District (Black Butte Ranch-U/LU). Policy 4.8.1 | Any amendment to the allowable use(s) in either the Resort Community District or the Limited Use Combining District shall require an exception in accordance with applicable statewide planning goal(s), OAR 660-04-018/022 and DCC 18.112 or any successor. raMV Community Deve opment Department FILE NUMBERS: APPLICANT/ PROPERTY OWNER: REQUEST: AGENT: ENGINEER: ARCHITECT: Administration Bldg., 1130 NW. Harriman, Bend, Oregon 97701 (541) 388-6575 FAX 385-1764 Planning Division Buildng Safety DMsion Environmental Health Division FINDINGS AND DECISION SP -96-10 and TP -96-857 Dale Bernards Yamazoe International Inc. 222 SW Columbia #1200 Portland, Oregon 97201 Applications for a Master Plan/TentatixA Plat for an 86 -unit townhome development, alia—a Site Plan for the first 8 townhome units, within the Seventh Mountain Golf Village/ Widgi Creek development adjacent to the Inn of the Seventh Mountain southwest of Bend in an F-2, Forest Use zone. Dale Van Valkenburg Bryant Lovlien & Jarvis Post Office Box 1151 Bend, Oregon 97709 Hickman, Williams & Associates 805 S.W. Industrial Way, Suite 10 Bend, Oregon 97702 Neal Huston Architect 19795 Village Office Court Bend, Oregon 97702 MAR 1993 MAILED DESCHUTES ,COUNTY, STAFF CONTACT: Paul E. Blikstad, Associate Planner APPLICABLE CRITERIA: A. Chapter 18.40 of Title 18 of the Deschutes County Code establishes standards for the F-2 zone. B. Chapters 18.84 and 18.88 of Title 18 establish standards and criteria for the LM, Landscape Management, and WA, Wildlife Area combining zones, respectively. SP -96-10 and TP -96-857 Page 1 Quality Services Performed with Pride C. Chapter 18.124 establishes standards and criteria for Site. Plan Review. Sections 18.116.030 and 18.116.031 establish standards for Off-street parking and loading, and bicycle parking, respectively: D. The Deschutes County Comprehensive Plan establishes an overall planning and development framework for the County. E. Title 17 of the Deschutes County Code establishes standards, and criteria for land divisions in the county. F. Title 22 of the Deschutes County Code establishes procedures for all land use applications in the County. FINDINGS OF FACT: 1. LOCATION: The Widgi Creek/Seventh Mountain Golf Village property is located adjacent to Century Drive and the Inn of the 7th Mountain southwest of Bend. It is located in Sections 14, 15, 22 and 23 of Township 18 South, Range 11 East. The tax lot description for this property is 18-11, 2000, except for the 107 lots platted as the Seventh Mountain Golf Village subdivision. 2. 'ZONING: The subject property is zoned F-2, Forest Use, with Landscape Management (LM) and (WA) Wildlife Area combining zones on the property. 3. REQUEST: , The applicant is proposing to develop an 86 -unit townhome project within the existing Widgi Creek/Seventh Mountain Golf Village development. The. applicant is proposing a zero lot line subdivision to allow common wall dwelling units in groups of four units. The applicant is proposing a master plan for ten phases to be developed over 3 to 5 years. The lot sizes are projected to range from 4,059 to 11,543 square feet (Note: these numbers may change based on the need to adjust individual lots for eave overhang). The applicanthas described in more detail the proposed project on page 3 of the burden of proof statement. Staff incorporates that description by reference herein. The site plan portion of this application is for the first eight (8) units (described as Lots 17-20 and 49-52) to be developed as a first phase. The applicant has submitted revised site plan drawings for the first eight units listed above. The drawings have been adjusted to ensure that any overhang from an eave will be on the lot which the building occupies (i.e. no eave overhang onto common property). According to the applicant's memo, the revised changes also include having 20 -foot wide driveways (versus 16 feet shown on the previous drawing) and also driveways that are twenty feet in depth from the edge of the road. The SP -96-10 and TP -96-857 Page 2 applicant is also proposing to change the road width for the two roads serving the development, the extension of Seventh Mountain Drive and Elkai Woods Drive, from 30 feet to 28 feet. The applicant has not submitted a revised master plan/tentative plat map which reflects the above changes. This revised master plan/tentative plat map will be required as a condition of approval. The applicant has also submitted a letter dated February 23, 1996 from the engineering firm hired to do engine- ering work for the project. This letter states that both the burden of proof and the master plan drawing for Elkai Woods did not include lots 53-56 and 65-68 in the proposed phasing sequence. The letter indicates that it is the engineer's opinion that lots 53-56 should be included within the proposed phase II and lots 65-68 in the proposed phase VI. 4. The following is a list of the land use applications that have been submitted for the Widgi Creek/Seventh Mountain Golf Village property: Z-83-7, a Zone Change for a 33 -acre portion of the overall development proposal of 230 acres, from SMR, Surface Mining Reserve, to F-2, Forest Use. The Findings and Decision of the County Hearings Officer was rendered in February of 1984. The Ordinance adopting the zone change (84-016) was signed by the Board of County Commissioners on May 2, 1994. MP -83-1, CU -83-107, a Conditional Use Permit to allow the expansion of the Inn of the Seventh Mountain destination resort, and a Master Plan for phased development of the expansion. This approval granted a total of 210 residential units, with single-family residential lots not to exceed 95 lots and condominium units not to exceed 120 units. The first phase, which included 33 residential lots and supporting facilities, a maximum of 50 condo- miniums and nine holes of the golf course was to be completed by the end of 1985. The remaining phase of the development was to be completed by the end of 1988. The Findings and Decision of the Hearings Officer on these applications was rendered on March 8, 1984. SP -84-23, a Site Plan for the golf course. The approval required that the golf course be completed by the end of 1988. Staff was unable to locate a copy of the findings and decision. MC -85-13, a Modification of Conditions to amend the approval for CU -83-107 and MP -83-1, allowing a change in the number of single-family residential SP -96-10 and TP -96-857 Page 3 : .• lots from 95 to 107 lots, and having the total number of residential and condominium units not to exceed 210 units and adding a third phase for the development. The first phase of the development, which includes the golf course, 33 home sites and the clubhouse, must be completed by the end of 1966. The second phase of the development would include 33 home sites, tennis and pool facilities, 30 condominium units, to be completed by the end of 1987, and a food and beverage and lobby facility to be completed by 1990. The third phase must be completed by the end of 1988 and an additional 30 condominium units must be constructed. By the end of 1990, 40 condominium units must be completed. The clubhouse will be allowed to be 5,000 square feet with a limited restaurant and lounge area. The Findings and Decision of the Hearings Officer was rendered on this application on December 18, 1985. Staff notes that this decision is not totally clear on the timing of the development and could have been more clear. TP -86-667, a Tentative Plat for 47 lots in the expansion. The Findings and Decision on this application was rendered on March 5, 1986. This approval expired and was never completed. MC -B7-2, a Modification of Conditions to extend the timeframe for the completion of the expansion to the Inn of the 7th Mountain. The decision approved changes to allow the first phase, which includes the golf course and 46 homesites to be completed by September 1, 1998. The second phase, which includes 33 homesites, tennis and pool facilities, 30 condominium units and the food and beverage and lobby facility will be completed by the end of September, 1989. The third phase must be completed by September 1990 with an additional 32 condominium units completed by September 1990. By the end of 1991, the balance of the project must be completed. The Findings and Decision of the Hearings Officer was rendered on June 22, 1987 on this application. MC -88-1, a Modification of Conditions to allow changes to the previous approvals. The applicant moved a condominium area, the recreation amenities, shortened the length of streets by 1,100 feet, connect with the City of Bend sewer system and change the phasing of the development to: phase 1 would include the golf course and 41 residential lots to be completed by December 31, 1966; phase 2 would include 32 additional lots, recreation amenities including the clubhouse, to be completed by September 30, 1989; phase 3, the remaining 34 lots would be completed by the end of 1989. The SP -96-10 and TP -96-857 Page 4 applicant received approval of the above, except that 20 residential lots were required to be shifted from phase 3 to phase 4 and 30 condominium units must be completed during phase 3. The project must be completed by December 31, 1991. Staff was unable to find a copy of the findings and decision on this application. MC -88-2, a Modification of the original golf course site plan. The applicant was required to complete the golf course by December 31, 1988. The club- house and parking areas must have an additional site plan review, and the crossing between holes 1 and 2 must be designed to provide safe crossing and be approved by the County Public Works Department. Staff was unable to find a copy of the findings and decision on this application. E-88-9, an Extension to allow 6 additional months for the completion of phase one of the expansion, which included the golf course and 46 homesites. This approval was rendered on August 26, 1988 and extended the approval to March 1, 1989. E-88-14, an Extension to allow completion of the golf course to June 30, 1989. This approval was rendered on December 30, 1988. E-89-6, an Extension of SP -84-23 and MC -88-2 for clearing of the fairways and installation of irrigation pipe for all of the fairways to December 31, 1989. This approval was rendered in July of 1989. TP -89-702, a Tentative Plat for 52 lots within the expansion. The findings and decision on this application was rendered on August 1, 1989. This approval was not completed. MC -89-22, a Modification of Conditions to allow completion of the clearing, grading, installation of pipe and seeding or sodding of the fairways by December 31, 1990. The golf course must be open for play by July of 1991. This approval was granted on January 9, 1990. MC -90-14, a Modification of Conditions to allow the platting of all 107 lots within the expansion prior to construction of development of the condominium units. The application was approved by the Hearings Officer on July 20, 1990. MC -90-21 and TP -90-735, a Modification to allow individual septic systems if sewer service from the City of Bend is not available and a Tentative Plat SP -96-10 and TP -96-857 Page 5 for all 107 single-family lots within the expansion area. The Findings and Decision on these applications was rendered on August 1, 1990. The final plat for Seventh Mountain Golf Village was recorded on December 20, 1990. PA -90-8, a Plan Amendment to allow the extension of the City of Bend sewer system to serve the Inn and the expansion to the Inn. The approval for the extension of the sewer service (Ordinance No. 90-041) was signed by the Board of County Commissioners on October 24, 1990. MC -90-24, a Modification of Conditions to allow the road crossing at the golf course between holes 1 and 2 to be an at -grade crossing rather than an undercrossing as originally proposed. The approval for this application was rendered on December 3, 1990. SP -91-21, a Site Plan application for the restaurant, golf pro shop, cart storage and locker/ changing room building, and a swimming pool and tennis courts for the expansion area. The Findings and Decision on this application was rendered on March 11, 1991. SP -94-45, a Site Plan for an office expansion to the restaurant building at the Widgi Creek golf course. The Findings and Decision on this application was rendered on May 25, 1994. AD -94-28, an Administrative Determination on the status of the Seventh Mountain Golf Village/Widgi Creek development. The Findings and Decision on this application was rendered on December 5, 1994. Staff notes that a Variance (V-91-12) and Sign Permits (S-91-36 and S-91-37) were approved for the "Seventh Mountain Golf Village" entrance signs, which have now been replaced by much smaller "Widgi Creek" signs. MP -95-19, a Partition to divide the Widgi Creek development into two parcels, one for the townhome project and the remainder parcel. This application was withdrawn. FP -95-1, a Financial Segregation to segregate the townhome site from the remainder parcel. This application is basically on hold. AD -95-16, an application for a Declaratory Ruling for a determination that the Widgi Creek/Seventh Mountain Golf Village project has been "initiated", SP -96-10 and TP -96-857 Page 6 which allowed the townhome applications to be submitted. The Findings and Decision on this application was rendered on September 1, 1995. 5. The Planning Division sent notice of the proposed applications to several public agencies and received the following responses: A. The Bend Fire Department states the following conditions: Fire Safety During Construction - 1991 UFC 87.103 Approved fire department access roads, required water supply and fire hydrants shall be installed before any combustible construction commences. Water Supply - 1991 UFC Appendix III -A The required water supply for fire suppression for this building shall be 1,500 gallons per minute at 20 P.S.I. residual pressure. This flow requirement is based on Type V -N building construction that does not exceed 3,600 square feet. Please notify thisofficeif additional square footage is to be constructed. Fire Hydrants - 1991 UFC 10.401 The minimum amount of fire hydrants needed on this site shall be one spaced no more than 150 feet from the most remote portion of the building measured by an approved route around the exterior of the facility or building. Fire Hydrant Spacing - 1991 UFC Table A -III- B-1 Fire hydrants shall be located along the route of fire apparatus access roadway and spacing of hydrants shall not exceed 500 feet. Obstruction & Protection of Fire Hydrant - 1991 UFC 10.105 A 3 -foot clear space shall be maintained around the circumference of fire hydrants. When exposed to vehicular damage, fire hydrants shall be suitably protected by concrete curbing, 4 -inch concrete filled posts or placed 6 feet 2 inches behind the curb of sidewalks. Premises Identification - 1991 UFC 10.301 (a) ApprOved numbers or addresses shall be placed on all new and existing buildings in such a position SP -96-10 and TP -96-857 Page 7 as to be plainly visible and legible from the street or road fronting the property. Said numbers shall contrast with their background and visible at night. Dwellings and Foster Homes that are located off of street frontage shall post a visible ap- proved reflective address sign at the entrance to their driveway. (Signs are available at local fire stations) Street or Road Signs - 1991 UFC 10.301 (b) Streets and roads shall be identified with approved signs. Fire Lanes - 1991 UFC 10.301 (b) Fire lane curbs shall be painted bright red with white letters. The stroke shall be 1 inch with letters 6 inches high to read "No Parking Fire Lane". Spacing for signage shall be every 25 feet. Fire Apparatus Access Roads 1991 UFC 10.201-10.204 Fire apparatus access roads shall be placed within 150 feet of all exterior walls of the first floor of all buildings. Fire apparatus access roads shall have an unobstructed width of not less than 20 feet designed with a uniform all-weather driving surface to support the imposed GVW of 50,000 lbs. and a vertical clearance of not less than 13 feet 6 inches. Turning radius shall not be less than 45 feet and gradient shall not exceed 12 percent. Dead-end access roads in excess of 150 feet in length shall be provided with approved provisions for the turning around of fire apparatus. A cul de sac,hammerhead or other approved means for the turning around of fire apparatus may be approved. Key Boxes - 1991 UFC 10.302 Key Box (Knox Box) for Fire Department access is required to be installed at the front door entrance of commercial buildinas. An application for the Knox Box is available by calling the Fire Prevention Office at 388-5536. Portable Fire Extinguishers - 1991 UFC 10.505 (a) Fire extinguishers rating shall not be less than a 2-A, 10-B:C. Maximum unobstructed travel distance to any approved extinguisher shall not be more than 75 feet. Dumpsters - 1991 UFC 11.302 (b) SP -96-10 and TP -96-857 Page 8 Dumpsters of 1.5 cubic yards or more shall not be stored in •buildings or placed within 5 •feet of combustible walls, openings or combustible roof eave lines unless such containers are provided with an approved automatic sprinkler system. Gas Meters & Piping - 1991 UFC 11.403 Above ground gas meters, regulators and piping exposed to vehicular damage due to proximity to alleys, driveways or parking areas shall be protected in an approved manner. Fire Sprinkler Systems - 1991 UFC 10.506(a) Fire -extinguishing systems shall be installed in accordance with the Building and Fire Codes. Fire hose threads used in connection with fire - extinguishing systems shall be national standard hose thread. Fire Sprinkler Apparatus and Installation N.F.P.A. Standards Fire sprinkler systems shall be installed in accordance with approved UBC and NFPA standards. Smoke Detection - ORS 479.255 Smoke detectors shall be in compliance with Oregon State Laws and the Building Code. B. The County Public Works Department submitted the following conditions: 1. The plat is to be prepared by a licensed land surveyor. 2. A11 property corners and rights of way are to 'be located and monumented. 3. The roads are to meet the private road stand- ards as specified in the Deschutes County Subdivision Code. See section 17.48.180 for these standards. 4. All parking requirements for motor vehicle and bicycle parking are to be met as specified in .the Deschutes County Code. Note: These roads are all private roads and are not maintained by Deschutes County. C. The Oregon State Parks and Recreation Division states that the applicant has filed a Notification SP -96-10 and TP -96-857 Page 9 • of Intent with OPRD. Review of the development is in process. The building permit is subject to approval from OPRD Commission for development in a Scenic Waterway. D. The County Property Address Coordinator states that the existing address for this parcel is 18707 Century Drive. This address is subject to change. All proposed road names must be approved by the P.A.C. prior to final approval. E. US West Communications states that the developer is to provide trenches/conduit and pay all costs. F. The County Building Division and County Assessor had no comments. G. No response was received from the State Highway Division, US Forest Service or the City of Bend. 6.. The Planning Division has received one letter in response to the public notice sent out on this appli- cation, from Jim Angell, basically representing the Associatibn of Unit Owners of the Inn of the Seventh Mountain. Their concerns were centered on the proposed extension of the access road for Elkai Woods to the Seventh Mountain property line and who is responsible for improving it from the property line into the Inn of the Seventh Mountain (from the applicant's proposed paved road to a paved section within the Inn of the Seventh Mountain), and that it should be constructed as part of Phase 1 of the project. The letter also expressed. concern over how rentals would be handled in the new development. CONCLUSIONS OF LAW: 1. As t4e applicant has correctly stated on page 4 of tlat tmE4en of proof statement, the townhome portion of the Widgi Creek/Seventh Mountain Golf Village development is g4ovied_.0 .be established. with a total of no more than .103 dwelling units, as per AD -95-16. The applicant has chosen to reduce this number to 86 units. The applicant is proposing to have both timeshare interval and individual ownership interests in the proposed units. As indicated in a letter from staff to Dale Bernards of Yamazoe International dated October 12, 1995, there is no specific language in any previous land use decisio regarding a required number of condominium units withi the project which must be reserved for overnigh accommodations. As indicated in that letter, there i reference, in the decisions to these units providing overnight accommodations, but no segic percentage or number has ever been establishe SP -96-10 and TP -96-857 Page 10 1 2. The applicant has addressed conformance with the Widgi Creek master plan on page 4 of the burden of proof statement. Staff finds that the applicant is correct in the statements on the master plan. Staff notes that the condominium/townhome location on the master plan map dated March 1988 matches generally the location proposed for the project. This 1988 map differs from the original master plan map of 1983; however numerous changes to the project occurred in 1987-88, resulting in the revised map. Staff also notes that the lots shown on the 1988 map are somewhat different than what was actually platted in the December of 1990. he above differences, the proposed road ween the Widgi Creek (Elkai Woods) velopment and the Inn of the Seventh Mountain velopment has been adjusted approximately 200 feet rth of the previous site. According to the letter om Jim Angell from the Association of Unit Owners at e Inn, this location is acceptable to the AUG though there appears to be disagreement as to who uld actually build or pay for the road). Staff has ked the site and the new road location would put the d just west of and inside a cyclone fence surrounding e old sewage treatment site for the Inn. There is an sting outdoor pond and an underground cistern -like ucture. in this location, and there is a gravel veway between the cistern and the cyclone fence which ounds the old sewage treatment site. Staff believes re is adequate room for an access road between the ce and the cistern, if the cistern is to remain. If fence were to be removed and the road was extended o a portion of the Seventh Mountain. Golf Village/ gi Creek property, there would be even more room for oad. This road would connect up with a cinder/dirt d that runs from the stable area at the Inn of the enth Mountain to the shared property line, and would vide the secondary emergency access that is desired the AUO. Staff finds that the proposed townhome location meets the required location on the master plan. 3. The applicant- has listed and addressed Section 17.16.050 of Title 17, Master Development Plan, on pages 5-8 of the burden of proof statement. Staff concurs with the applicant's findings on these criteria and incorporates them herein by reference. Staff believes that a 5 -year time frame for approval is both warranted and valid, especially considering the history of the entire project, now in its 13th year. The applicant will be required to construct an emergency fire access gate at the location where the road enters the Inn of the Seventh Mountain property. Staff believes the applicant should work with the Inn to construct a road on Inn SP -96-10 and TP -96-857 Page 11 property that is improved to at least a 20 -foot wide gravel standard. 4. The applicant has listed and addressed Section 17.16.100 of Title 17, Required Findings for Approval, on pages 8-10 of the burden of proof statement. Staff concurs with the applicant's findings and incorporates them herein by reference. Staff notes that the applicant has. reduced the 1 al •,-0 number of townh 10 o 86 units. Additionally, the name of he proposed gubdivisiOn, Elkai Woods Townhomes, does not currently exist in county records, and there is no name that is similar to this name in county records. This name will likely be approved by the County Surveyor. • 5. The applicant has listed and addressed Chapter 17.20 of Title 17, Zero Lot Subdivision, on pages 10-11 of the burden of proof statement. Staff concurs with the applicant's findings on these criteria and incorporates them herein by reference. Staff notes that the appli- cant has stated that the written agreement required under Section 17.20.010 (C) is being prepared and will be submitted for approval prior to the recording of the final plat for phase 1 of Elkai Woods. The applicant has submitted a site plan application in conjunction with the tentative plat. Additional site plan appli- cations will be required for future phases of the project. 6. The applicant has listed and addressed the applicable sections of Chapter 17.36 of Title 17 on pages 11-13 of the burden of proof statement. Staff concurs with the applicant's findings on these criteria, in addition to the following findings. Under Title 17 and in Section 17.36.060, the code does not specify a minimum right of way width for private roads. The minimum road width for private roads is 28 feet, which the applicant intends to construct the private roads to. The applicant will need to establish any necessary easements for utilities as per Section 17.36.160. The lot sizes and shape should be adequate for a zero lot line multi -unit subdivision served by private roads (Section 17.36.170). Solar access will be limited given the unit and subdivision design chosen and the vegetation on the site (17.36.210). Underground facilities are proposed (17.36.220). The water and sewer system will be connected to the City of Bend system and will be underground (17.36.280 and 17.36.300). The site plan indicates existing sewer and water lines running under some of the proposed dwelling units that are not a part of this site plan application. These lines may need to be relocated and approval from the City on design will be necessary. SP -96-10 and TP -96-857 Page 12 7. The applicant has listed and addressed.the applicable portions of Chapter 17.48 of Title 17 on pages 13-14 of the burden of proof statement. Again, staff concurs with the' applicant's findings and incorporates them herein by reference. The applicant has changed the proposed road width from 30 to 28 feet, which still meets the requirements of Section 17.48.180 for private roads. This section requires that the bike lanes be striped and be a minimum of four feet wide. 8. The applicant has addressed the F-2 zone on page 14 of the burden of proof statement. Staff concurs with the applicant's conclusion that the provisions of the F-2 zone are not directly applicable to the proposed project, given the long history of land use approvals and the County's recognition of the condominium/ townhome portion of the development through AD -95-16. 9. The applicant has listed and addressed Chapter 1B.84, Landscape Management, on pages 14-18 of the burden of proof statement. Staff concurs with the applicant's findings and incorporates them herein by reference. Staff finds that the applicant is correct in stating that units 49-52 will not be visible from the Deschutes River (nor will they be visible from the Cascade Lakes Highway). It is not totally clear if the river land- scape management zone would cover units 17-20; however even if they were in the river LM zone, they would not be visible from the river. Units 17-20 will be visible from the highway and are thus subject to the Design Review Standards of Section 18.84.080 of Title 18. All of the proposed units will be more than 100 feet from the edge of the highway, meeting the requirements of Section 18.84.090 (B) of Title 18. No portion of the subject property is directly adjacent to the Deschutes River; none of the proposed units will be within 100 feet of the ordinary high water mark of the river. Staff notes that the new road locations serving the proposed development will require the removal of a significant amount of existing trees. Many trees can be saved on the site however, and new landscaping will be added. The trees along the fairways for hole #'s 16 and 17 will help buffer the proposed development from the highway. 10. The applicant has listed and addressed the off-street parking and loading and bicycle parking (18.116.030 and 18.116.031 of Title 18) on pages 19-21 of the burden of proof. Staff concurs with the applicant's findings and incorporates them herein by reference. As stated by the applicant, any outdoor lighting for the parking areas must meet the lighting code requirements of Chapter 15.10 of the County Code. Staff notes that the standard stating that two or more parking spaces be located and SP -96-10 and TP -96-857 Page 13 designed to prevent the need to back out onto a street or right of way other than an alley is directed at commercial and industrial site plans where vehicles are driven by customers. The townhome parking spaces will be occupied by residents and guests, similar to any other single-family dwelling development, which allows the backing of vehicles onto either public or private streets. 11. The applicant has listed and addressed the Site Plan Review approval criteria of Section 18.124.060 of Title 18 on pages 21-23 of the burden of proof statement. Staff concurs with the applicant's findings and incor- porates them herein by reference. Staff notes that the entire development will require the removal of many of the existing trees on the subject property, for roads, dwelling units, utilities and amenities. Introduced landscaping will be added as the dwelling units are completed. No specific setbacks will be required for the dwelling units, other than to provide off-street parking and not allow any eave or other overhang from encroaching over a property line. The tentative plat will need to be revised and a new drawing submitted prior to any final plat approval or issuance of a building permit. The new drawing must show property lines that allow for the eave overhang. 12. The applicant has listed and addressed Section 1:8.124.070 (A) of Title 18, Required Minimum Standards for residential developments, on pages 23-24 of the burden of proof. Staff concurs with the applicant's findings on this criterion and incorporates them herein by reference. Staff finds that subsection (b) under this section is not applicable, as the proposed development is not for "apartments". 13. The applicant has listed and addressed Section 18.124.070 (B) of Title 18, Required Landscape Areas, on pages 24-25 of the burden of proof statement. Staff concurs with the applicant's findings and incorporates them herein by reference. Staff believes that the site will need to be landscaped in order to sell the units. In a development of this type, the purchasers of either the lots or interests in the lots will not be land- scaping them. This is always done by the developer. 14. Staff concurs with the applicant's findings on page 25 that the conditional use standards of Chapter 18.128 do not apply to the proposed project. This townhome project is part of the expansion to the Inn of the Seventh Mountain originally approved in 1983. 15. The applicant has requested a general exception to the 30 -foot height limitation in the F-2 zone in the burden of proof on page 26. Staff finds that the height SP -96-10 and TP -96-857 Page 14 exception cannot be granted as all of the subject property is within a Landscape Management zone and Section 18.120.040 (8) prohibits height exceptions in the LM zone. CONCLUSIONS: The proposed townhome/condominium development at Seventh Mountain Golf Village/Widgi Creek can meet the standards of Titles 17 and 18 of the County Code if all of the following conditions are met. DECISION: APPROVAL CONDITIONS OF APPROVAL - TENTATIVE PLAT: 1. The applicant shall submit a revised tentative plat that demonstrates that all 86 lots have met the standard for having no eave or roof overhang onto common property. This plat shall be submitted prior to final plat approval for any first phase of the project. 2. The final plat(s) for the proposed subdivision shall be prepared in accordance with Title 17 of the County Code and ORS Chapter 92, including all necessary information as required by Section 17.24.060 of Title 17. The subdivision shall be surveyed and monumented by a licensed land surveyor and a final map submitted to the County Surveyor. The final plats shall include the exact sizes for each lot. 3. The applicant shall submit an updated Title Report for the subject property to verify evidence of marketable title prior to final plat approval for each phase of the subdivision. All persons with an ownership interest in the property shall sign the final plats. 4. Ail road names shall require approval from the County Property Address Coordinator. The subdivision name shall require approval from the County Surveyor and Planning Division. 5. All existing and proposed public utility easements shall be shown on the final plat. 6. The final plats for the subdivision shall include a statement of water rights as required by ORS 92.120. 7. Taxes for the subject subdivision shall • be paid according to the requirements of ORS 92.095 prior to final approval of each phase of the subdivision. 8. The private roads within this subdivision shall be SP -96-10 and TP -96-857 Page 15 constructed to a standard of a 28 -,Loot wide paved surface, 6 -inch aggregate base and 2 -inch A.C. or oil mat paving. Four foot wide bicycle lanes shall be striped on both sides of the road. 9. The minimum road construction requirement for Phase 1 shall require a loop road serving the property. 10. The County will not maintain the private roads within this development. 11. Street signs for the streets within the development shall meet the standards specified by Fire Department. 12. The applicant shall meet all requirements of the Bend Fire Department for fire protection within the project. 13. All utilities for the proposed development shall be underground. 14. The applicant shall submit a written agreement in a form approved by county legal counsel that establishes the rights, responsibilities and liabilities of the parties with respect to maintenance and use of any common areas of the unit, such as, but not limited to, common walls, roofing, water pipes and electrical wiring. Such agreement shall be in a form suitable for recording, and shall be binding upon the heirs, executors, admin- istrators and assigns of the parties. This written agreement shall be recorded prior to or at the time of platting of the first phase of Elkai Woods. CONDITIONS OF APPROVAL - SITE PLAN: 1. The applicant shall meet all requirements of the Bend Fire Department for fire protection on the site, as they are stated in the transmittal response listed on pages 7-9 of this Findings and Decision. 2. The applicant shall obtain all necessary permits for the dwelling units from the County Building Safety Division. 3. The applicant shall provide written verification from the City of Bend that they are able and willing to handle the sewage disposal for the project, prior to platting of any first phase of the development. 4. All utilities shall be underground. 5. The trash enclosures placed on the screened from view as much as possible roads within the development. 6. Any exterior lighting placed on the new SP -96-10 and TP -96-857 Page 16 site shall be from the private buildings shall be shielded and directed downward and meet the requirements of Chapter 15.10 of the County Code. 7. All surface water drainage shall be disposed of through use of approved catch basins and drywells or drained to soil or gravel areas. All surface water drainage shall be contained on-site and all necessary plumbing permits obtained. 8. The dwellings shall have exterior materials and appearance painted in or otherwise have earth tone colors. stragw, - i1 0 IL1).'11%-eRACW*A.*:71, DURATION OF APPROVAL: Final plat approval for all phases of the subdivision shall be submitted within five (5) years of the date this decision becomes final, or otherwise extended through the provisions of Title 22 of the County Code, or the approval shall be void. Building permits for all units shall have been applied for within the same 5 -year period, or the Site Plan approval shall be void, unless extended. This decision -becomes final ten (10) days from the date mailed, unless appealed by a party of interest. DESCHUTES COUNTY LANNING DIVISION Written by: Paul,,Blikstadt Associate Planner Reviewed by: Kevin M. Harrison, Principal Planner PEB/mjz SP -96-10 and TP -96-857 Page 17 1 FINDINGS AND DECISION FILE NDMBER: SP -96-74 APPLICANT: Neal Huston, Architect 19725 Village Office Court Bend, Oregon 97702 PROPERTY OWNER:Yamazoe International 222 SW Columbia, Suite 1200 Portland, Oregon 97201 REQUEST: AGENT: tr The applicant is requesting approval of a Site Plan for an amenities complex for the Elkai Woods townhome project within the Widgi Creek/Seventh Mountain Golf Village development in an F-2 zone. Dale Van Valkenburg Bryant Lovlien & Jarvis, P.C. Post Office Box 1151 Bend, Oregon 97709 STAFF CONTACT: Paul Blikstad, Associate Planner APPLICABLE CRITERIA: Title 18 of the Deschutes County Code, the County Zoning Ordinance. - Chapter 18.40, F-2 zone - Chapter 18.84, Landscape Management zone - Chapter 18.88, Wildlife Area zone - Chapter 18.124, Site Plan Review - Section 18.116.030, Off-street parking and loading - Section 18.116.031, Bicycle parking Title 22 of the Deschutes County Code, County Development Procedures Ordinance. the Deschutes PL -20, the Deschutes County Year 2000 Compre SP -96-74 Page 1 FINDINGS OF FACT: 1. LOCATION: The subject property is located within the Widgi Creek/Seventh Mountain Golf Village development adjacent to hole nos. 13, 14, 15, 16, 17 and 18 of the Widgi Creek golf course. The entire golf course development and Elkai Woods project is located on the tax lot identified on Deschutes County Assessor's Map as #18-11, 2000. 2. ZONING: The subject property is zoned F-2, with an LM, Landscape Management and WA, Wildlife Area combining zones. It is designated Forest and Landscape Management on the Deschutes County Comprehensive Plan. 3. SURROUNDING LAND USE: The property is located in an area of limited development, except for the Inn of the 7th Mountain and the Widgi Creek/Seventh Mountain developments. The area outside of these developments is all forest land. Across the Deschutes River from these developments is a portion of the Deschutes River Woods subdivision. 4. SITE DESCRIPTION: statement contains an 2 and is incorporated 5. PROPOSAL: The I).- 5,0square foot meeting hall•ool ng, an "The Applicant is seeking site plan review and approval of a recreational amenities complex associated with the Elkai Woods Townhomes. The co * ex . consist of_a. p0e* westofy 7 500 .0 n sq ft. ofexteriordecks, an.4, parking area will 5e rosp5a7s,ft The applicant's burden of proof accurate site description on page herein by reference. 11 a** oval fo a complex frthe Elkai Woods town ome development within_Widgi Creek. The applicant gibes the proposed project on pages 2 and 3 of the burden of proof as follows: The proposed meeting hall contains a 3,200 sq. ft. meeting room, a kitchen, restrooms, a rental office, and storage and mechanical areas. Primary access to the meeting hall is via a porte cochere into the rental office on the west side of the north end of the building, and through a covered porch entry on the west side of the building directly into the meeting room. An overhead door is provided on the west side of the south end of the building. Several doors lead out from the east side of the building into the enclosed pool/patio area. SP -96-74 Page 2 The 1,480 sq. ft. poolhouse is located at the south end of the pool/patio area and features a locker room with showers and restrooms, and enclosed saunas. The north side of the building, facing the pool, is a covered portico over spas and a deck area. An 1,870 sq. ft. swimming pool and wading pool are located within the bend of the "L" formed by the poolhouse and meeting hall. The pool features large patio areas and a recirculating stream and waterfall within a landscaped, fenced enclosure. A small patio area adjacent to the meeting hall will serve as an outdoor dining area for snacks prepared in the kitchen and passed through a window/counter. Access to the pool will be through the meeting hall building and through an entrance gate at the end of a pergola -covered walkway at the south end of the meeting hall. Domestic water to the facility will be provided by the existing Widgi Creek Water System, which utilizes wells. The wells which supply the system were drilled with the intention of providing domestic water to up to 103 condominium units. Thus, the wells have more than sufficient capacity to handle the additional demand. An 8" water line will be located within the private streets with connections to all units. Irrigation water for landscaped areas will be provided through underground irrigation" lines from the existing golf course irrigation system, which also utilizes wells. The wells are located at the northwest corner of the project. Electrical power will be provided utilizing underground lines to be installed in the private streets. Pacific Power & Light is the power provider. Telephone, cable television, and gas will be provided by U.S. West Communications, Bend Cable and Cascade Natural Gas, respectively. Those utility lines will also be located underground in the private streets. Fire protection is provided by the Bend Fire Department through a structural protection contract. The street layout and hydrant locations have been developed through consultation with the Department. A secondary emergency access will be provided to existing roads within the Inn of the 7th Mountain. The Fire Department has not expressed any concern about their ability to provide service to -the development. Garbage and recyclable materials will be handled through a franchised hauler to the Knott Landfill and Recycling Center. A trash dumpster enclosure will be provided at the north side of the building, adjacent to the loading SP -96-74 Page 3 area." 6. The Planning Division sent notice of the proposed land use application to several public agencies and received the following comments: A. The Bend Fire Department states the following conditions: Fire Safety During Construction - 1991 UFC 87.103 Approved fire department access roads, required water supply and fire hydrants shall be installed before any combustible construction commences. Water Supply - 1991 UFC Appendix III -A The required water supply for fire suppression for this building shall be 1,500 gallons per minute at 20 P.S.I. residual pressure. This flow requirement is based on Type V -N building construction with approved fire sprinkler system. Fire Hydrants - 1991 UFC 10.401 The minimum amount of fire hydrants needed on this site shall be one spaced no more than 150 feet from the most remote portion of the building measured by an approved route around the exterior of the facility or building. Obstruction & Protection of Fire Hydrant - 1991 UFC 10.105 A 3 -foot clear space shall be maintained around the circumference of fire hydrants. When exposed to vehicular damage, fire hydrants shall be suitably protected by concrete curbing, or 4 -inch concrete filled bollards placed 3 feet from hydrant. Premises Identification - 1991 UFC 10.301 (a) Approved numbers or addresses shall be placed on all new and existing buildings in such a position as to be plainly visible and legible from the street or road fronting the property. Said numbers shall contrast with their background and be visible at night. Dwellings and Foster Homes that are located off of street frontage shall post a visible approved reflective address sign at the entrance to their driveway. (Signs are available at local fire stations) SP -96-74 Page 4 s?-96_1� 5 page Street or Road Signs - 1991 UFC 10.301 (b) Streets and roads shall be identified with approved signs. Fire Lanes - 1991 UFC 10.301 (b) Fire lane curbs shall be painted bright red with white letters. The stroke shall be 1 inch with letters 6 inches high to read "No Parking Fire Lane". Spacing for signage shall be every 25 feet. Fire Apparatus Access Roads - 1991 UFC 10.201-10.204 Fire apparatus access roads shall be placed within 150 feet of all exterior walls of the first floor of all buildings. Fire apparatus access roads shall have an unobstructed width of not less than 20 feet designed with a uniform all-weather driving surface to support the imposed GVW of 50,000 lbs. and a vertical clearance of not less than 13 feet 6 inches. Turning radius shall not be less than 45 feet and gradient shall not exceed 12 percent. Dead-end access roads in excess of 150 feet in length shall be provided with approved provisions for the turning around of fire apparatus. A cul de sac, hammerhead or other approved means for the turning around of fire apparatus may be approved. Key Boxes - 1991 UFC 10.302 Key Box (Knox Box) for Fire Department access is required to be installed at the front door entrance. An application for the Knox Box is available by calling the Fire Preventions Office at 388-5536. Portable Fire Extinguishers - 1991 UFC 10.505 (a) Fire extinguishers rating shall not be less than a 2-A, 10-B:C Public Area, 40-B:C Kitchen Area. Maximum unobstructed travel distance to any approved extinguisher shall not be more than 75 feet Public Area, 30 feet Kitchen Area. Dumpsters - 1991 UFC 11.302 (b) Dumpsters of 1.5 cubic yards or more shall not be stored in buildings or placed within 5 feet of combustible walls, openings or combustible roof eave lines unless such containers are provided with an approved automatic sprinkler system. SP -96-74 Page 6 Gas Meters & Piping - 1991 UFC 11.403 Above ground gas meters, regulators and piping exposed to vehicular damage due to proximity to alleys, driveways or parking areas shall be protected in an approved manner. Fire Alarm Systems - 1991 UFC Article 14 Installation and maintenance of fire alarm systems shall be in accordance with Article 14. Fire Sprinkler Systems - 1991 UFC 10.506 (a) Fire -Extinguishing systems shall be installed in accordance with the Building and Fire Codes. Fire hose • threads used in connection with fire extinguishing systems shall be national standard hose thread. Fire Sprinkler Apparatus and Installation N.F.P.A. Standards Fire sprinkler systems shall be installed in accordance with approved U.B.C. and N.F.P.A. standards. Fire Extinguishing Equipment for Kitchen Appliances - 1991 UFC 10.513 Approved fire suppression equipment systems shall be provided for the protection of commercial -type food heat processing equipment. B. The County Public Works Department states that all parking requirements for automobiles and bicycles must be met. All surface drainage water is to be disposed of on site by use of engineered dry wells and catch basins. C. The County Property Address Coordinator states that the address for the amenities complex will be 60540 Seventh Mountain Drive. D. US West Communications states that the customer is responsible for 3" conduit/pull rope to US West designated closure and equipment space and #6 ground wire to power ground. E. The City of Bend submitted the following conditions: SP -96-74 Page 7 1. The water system is private. The applicant will need to provide a test of this system to assure the system can meet required fire flows. This will need to be approved. by the City of Bend. 2. The applicant will need to sign sewer agreements with the City of Bend for additional sewer use, including paying sewer ZDCs. A grease trap is required to be installed on the clubhouse sewer service line. The applicant will need to verify with the Engineering Division that the existing sewer pump station has adequate capacity for the new development. 3. The applicant will need to coordinate with the City Laboratory Manager, Bev Sunderland, for the maintenance of the pool, specifically 'relating to the drainage of the pool. If the water is proposed to be disposed in the City sewer, the applicant will need to coordinate when this will be done and how quickly the pool will be drained. We have concern about the capacity of the pump station. If the applicant drains the water to a surface pond, they will need a permit from DEO. F. The County Building Division had no comments. G. No response was received from Pacific Power and Light. 7. The subject property is a legal lot of record. 8. The Planning Division received one written response to the public notice sent out on this application. This response was from Jim Angell for the Association of Unit Owners (AUO) within the Inn of the Seventh Mountain. The letter expressed concern over the proposed recreation center (SP -96-74) for the Elkai Woods condominium development. The concern appears to be based on the amenities complex being capable of competing with the Inn's amenities as a resort. CONCLUSIONARY FINDINGS: 1. The applicant has stated on pages 4-6 of the burden of proof statement the reasons they believe the proposed amenities complex is consistent with the previous appro tne-Widgi Creek project; the applicant also suomittea a .$-page letter discussing the SP -96-74 Page proposed clubhouse expansion (SP -96-72) and its relationship to the previous approvals, as well as the proposed amenities complex. Specifically, the applicant has referred to the original master plan approval (MP -83-1 and CU -83-107) and subsequent Modification of Conditions (MC -85-13) approved by the County Hearings Officer. Although it is. not totally clear from the Hearings Officer's findings and decision and the applicant's burden of proof statements, the condominium (townhome) development was proposed to include food and beverage service, a lobby area and meeting room facility. The pool facility at the amenities complex will take the ge o; the p001 facility which was anticipated to bT placed elsewhere near the clubhouse for the golf course. No additional pool facilities will be allowee. Staff finds that the proposed amenities complex is consistent with the original land use approvals listed above and that the applicant is allowed to proceed as a vested right for the project. 2. The proposed use, an expansion to an existing resort facility that includes a golf course in an F-2 zone, would normally be considered an expansion to a nonconforming use, since destination resorts are not allowed in the Oregon Revised Statutes or the implementing Oregon Administrative Rules for forest zones, and they are not allowed under Chapter 18.40 (F-2 zone) of Title 18 of the Deschutes County Code. The expansion would normally require the applicant to go through a .plan amendment process to address the rural communities rule of the Oregon Administrative Rules 660 Division 22 for unincorporated communities. However, given the findings in no. 1 above, the proposed amenities complex is allowed under an approved master plan for Widgi Creek/Seventh Mountain Golf Village. Any future expansion of the facility will require the plan amendment and approval. 3. The applicant has correctly stated on page 7 of the burden of .proof statement that the amenities building will not be visible from the Deschutes River and thus meets the criteria for non-visible structures as outlined in Section 18.84.050 of Title 18 for the river. The applicant has also correctly stated on page 7 that the complex will be visible from Century Drive, which is also subject to landscape management review. The applicant has listed and addressed Section 18.84.080 of Title 18, Design Review Standards for the LM zone, for the portion of the project visible from Century Drive. The applicant's findings are incorporated by reference herein. Staff notes that the applicant has specifically SP -96-74 Page 9 stated what exterior materials and colors will be used on the complex and that the project will have earth tone colors which reduce contrast with the natural landscape. The applicant will be required to follow this proposed exterior appearance. The amenities complex will remain not visible from the river based on the distance to the river and the existing vegetative cover and topography between the river and the complex. 4 The applicant has correctly indicated on page 9 of the burden of proof statement that the Widgi Creek development is allowed to be expanded as proposed based on the original master plan approval and is thus not subject to.the limitations of Section 18.88.040 (B) of the Wildlife Area combining zone. The applicant's findings are incorporated by reference herein. 5 The applicant has listed and addressed the number of vehicular parking spaces on page 10 of the burden of proof statement. Staff concurs with the applicant's assessment of the number of spaces that should be required for the amenities complex. The 31 spaces proposed will be made a condition of approval. Section 18.116.030 (G)(4) of Title 18 limits the number of compact stalls to 30 percent of the total required stalls. With 31 parking spaces proposed on-site, the maximum number of compact stalls would be 9; the site plan submitted indicates there are 9 compact stalls. 6. The applicant has listed and addressed the Development and Maintenance standards for off-street parking areas on pages 10 and 11 of the burden of proof statement. The drainage of the parking areas must include drywells in conjunction with the catch basins. The applicant has proposed both, but the site plan does not indicate where the locations of these are. Plumbing permits will be required from the County Building Division for installation of the drainage mechanisms. Staff makes the following additional findings: 18.116.030 (E) (4) Use of Parking Facilities. Required parking space shall be available for the parking of operable passenger automobiles of residents, customers, patrons and employees only and shall not be used for the storage of vehicles or materials or for the parking of trucks used in conducting the business or used in conducting the business or use. Staff findings: The parking spaces must be for SP -96-74 Page 10 customers, patrons and employees only and cannot be used for storage of trucks or materials for the complex. 18.116.030 (F) (5, 6 and 9) 5. Except for parking to serve residential uses, parking and loading areas adjacent to residential uses shall be designed to minimize disturbance of residents. 6. Access aisles shall be of sufficient width for all vehicular turning and maneuvering. 9. Parking spaces along the outer boundaries of parking area shall be contained by a curb or bumper rail placed to prevent a motor vehicle from extending over an adjacent property line or a street right of way. Staff findings: The proposed parking lot for the amenities complex will not disturb residents who may live in the townhomes or who stay in them temporarily as guests. The parking will be used by residents and guests, similar to what occurs at the adjacent Inn of the 7th Mountain development. There should be no disturbance of residents. Lot owners who purchase the townhomes in this location will be aware of the amenities complex. The access drives proposed for the amenities complex are 24 feet wide, whioh allows for two-way traffic on the paved areas. The porte cochere will allow one-way traffic to enter and exit this location. The parking spaces will all have either curb or concrete boundaries. The proposed parking spaces meet the minimum design standards of subsection G. 7 The applicant has listed and addressed part of the bicycle parking standards on page 11 of the burden of proof statement. Staff notes that the criterion under section 18.116.031 (A)(1) adds one additional portion of a sentence which is not included in the applicant's findings. This portion of the sentence reads as follows: "or, where more than 10 bicycle parking spaces are required, at least 50 percent of the bicycle parking spaces shall be sheltered." The applicant has proposed no specific number of bicycle parking spaces. The applicant has stated that covered bicycle parking spaces will be provided under the porch roof at the building's main entrance and pool gate. A minimum of seven (7) bicycle parking spaces must be provided, with four (4) of these spaces covered. SP -96-74 Page 11 The bicycle parking spaces must meet the standards for dimensions, surface and security as listed under Section 18.116.031 (3)(4, 5 and 6) of Title 18. 8. The applicant has listed and addressed the Site Plan approval criteria on pages 11-14 of the burden of proof statement.. Staff concurs with the applicant's findings and incorporates them by reference herein. Staff re-emphasizes that all lighting for the buildings and parking lot must be shielded and must meet the standards under Chapter 15.10 of the County Code. 9. The applicant has listed and addressed the landscaping standards of Section 18.124.070 on pages 10-12 of the burden of proof statement. Staff finds that the proposed landscape plan is generally in conformance with this section, except for the number of street trees along the landscape strip that separates the parking area from the street. This strip will need to include additional trees to meet the maximum 35 foot spacing standard. The applicant will be required to maintain all landscaping and have it kept alive. CONCLUSIONS: Staff finds that, based on the record, the application can satisfy all relevant criteria if the following conditions are met. DECISION: APPROVAL CONDITIONS OF APPROVAL: 1. Approval is based upon the submitted plan, except for the necessary amendments to the landscape plan with respect to street trees along the landscape strip between the parking area and the street. At least three additional trees shall be added to this strip. 2. All landscaping shall be completed within 6 months of the completion of the complex building. 3. Thirty-one (31) parking spaces shall be installed as shown on the site plan for the amenities complex. The parking spaces and all driveways shall be paved prior to occupancy of the building. 4. A minimum of seven bicycle parking spaces shall be installed on the site, with a minimum of four of these SP -96-74 Page 12 spaces covered. The bicycle parking spaces shall be installed prior to occupancy of the amenities building. The bicycle parking spaces shall meet the standards for bicycle parking as established under Section 18.116.031 (B) of Title 18. 5. All parking areas and driveways for the amenities complex shall be paved surfaces designed for all-weather use, and shall be completed prior to occupancy of the amenities building. The paved areas shall have catch basins and drywells, and any associated plumbing permits for these. 6. The applicant shall meet all requirements of the Bend Fire Department for fire protection for the project. These requirements are listed in the transmittal response from the Fire Department in this Findings and Decision attached as Exhibit A to this decision. 7. The applicant shall meet all requirements of the Deschutes County Building Division for the required permits for the amenities complex. 8. The applicant shall obtain the required permits from the County Environmental Health Division for the food service and pool facilities on the site prior to occupancy of the amenities building. 9. The applicant shall meet all requirements of the City of Bend for the sewer service connection for the amenities complex, including a test of the required fire flows, conferring with the City on draining of the swimming pool and verifying the capacity of the sewer pump station. The applicant shall submit written verification from the City of Bend for meeting all City requirements for the amenities complex. 10. Any trash enclosure for the amenities complex shall be buffered from adjacent properties by a solid fence or wall in an earth tone color the same as the amenities building. 11. All exterior lighting on the site, including security lighting, shall be shielded only and not project off-site. 12. The exterior colors of the complex building shall be as prescribed in the burden of proof statement, which are earth tone -brown and green colors. 13. The applicant shall sign and enr into a Condition of .2proval Agreement County to ensure SP -96-74 Page 13 all elemer maintainedas approved an recorded prior to issuance of structure. DURATION OF APPROVAL: an shall be installed and T i6 agreement shair--E6 with the Deschutes County Clerk the building permit for any new The applicant shall submit an application for a building permit for the amenities complex within two (2) years from the date this decision becomes final, or extend the Site Plan approval according to Title 22 of the County Code, or this approval shall be void. This decision becomes final ten (10) days from the date mailed, unless appealed by a party of interest. DESCHUTES COUNTY PLANNING DIVISION Written by: Paul Blikstad, Associate Planner Reviewed by: Kevin M. Harrison, Principal Planner PEB/slr SP -96-74 Page 14 07/17/98 FRI 10:13 FAX 503 382 2900 C.O.Home Health BEFORE T1it DESCHUTES COUNTY PLANNING DIVISION APPLICANT: NEAL HUSTON ARU:111LCI APPLICANT: Neal Huston Architect, Inc. 19795 'Village Office Court Bend, Oregon 97702 OWNER: ( ( BURDEN OF PROGY Dale Bernards Yarnazoe International 222 S.W. Columbia, Suite 1200 Portland, Oregon 97201 AGENT: Dale Van ValkenbLuB, Principal Planner Bryant Lovlien & Jarvis Post Office Box 1151 Bend, Oregon 97709 REQUEST: Site Plan Review for the Amenities Complex for the Elkai Woods Townhome Development within the Widgi Creek Planned Development APPLICABLE STANDARDS & CRITERIA Widgi Creek Development Master Plan, as outlined in County File AD -95-16. Title 18 of the Deschutes County Code, Zoning: * Chapter 18,40, Forest Use - F-2 Zone; * Chapter 18.84, Landscape Management - LM Combining Zone; * Chapter 18.88, Wildlife Area - WA Combining Zone; * Chapter 18.116, Supplementary Provisions; Chapter 18,124, Site Plan Review; Elkai Woody Amenities Complex Burden of Proof Page 1 NetegillMRSUASKIIM &yartLovlieviljarvis ensmewt.e. 40 N.W. Greenwood • P.O. Box 1151 • Bend, Oregon 97709-1151 • (541/ 3824331 • Fax (5411 389-3386 Q00,1 07/17/98 FRI 10:13 FAX 503 382 2960 C.O.Home Health Title 22. of the County Code, the Uniform Development Procedures Ordinance. The Deschutes County Year 2000 Comprehensive Plan. FINDINGS OF FACT: 1. LOCATION: The subject site for townhome development is located in the southembalf of the Widgi Creek Golf Course and Planned Development, in the area recently approved for development as the Elkai Woods Townhomes project. Widgi Creek is located adjacent to the Inn of the 7th Mountain on Century Drive. It is located in Sections 14, 15, 22 and 23 of Township 18 South, Range 11 East. The Tax Lot description is 18-11400)- 2000. 2. ZONING: The subject property is zoned F-2, Forest Use, with Landscape (LM) and Wildlife Area (WA) Combining Zones. enient SITE DESCRIPTION: The proposed building site is located in the southern one-balf of the Widgi Creek Planned Development, which encompasses 230 acres and is developed with an 18-holeregulation golf course, a driving .te, pro shop, restaurant, tennis courts, and 107 single-family residential building lots. The proposed amenities complex is associated with and located in the recently approved 86 -unit Elkai Woods Townhome Development within Widgi Creek. The proposed building site bas a generally level topography, and a moderate covering of ponderosa pine trees ranging up to 30" dbh. 4. SURROUNDING USES: The proposed •• enities complex is situated in the north central portion of the Elkai Woods development, at the intersection of Seventh Mountain Drive and Elkai Woods Drive. The proposed building site is located in the interior of the looped road system which provides access to the townhomes. The site will be surrounded by townhomes at project completion. The Elkai Woods project as a whole is surrounded by the existing Widgi Creek golf course, specifically, the 13th, 14th, 15th, 16th, 17th and 18th holes. To the north is the golf course clubhouse and maintenance facilities, the remaining golf holes, and 107 single-family residential building lots within Widgi Creek. To the south is land developed as the Inn of the 7th Mountain Destination Resort. To the east are public lands and the Deschutes River, with the Deschutes River Woods rural residential subdivision beyond. To the west across Century Drive is undeveloped public land. 5, PROPOSAL: The Applicant is seeking site plan review and approval of a recreational amenities complex associated with the Elkai Woods Townhomes. The complex will consist of a 5,570 sq. ft. meeting hall, a 1,562 sq. ft. pool building, and nearly 7,500 sq. ft. of exterior decks, spas, and pools. A 32 -space, paved parking area will be provided west of the building. Elkai Woods Amenities Complex Burden of Proof Page 2 Eryara Lovlien II Jarvis ArOIRMAI 0,..141NAI MIVINMIAT 40 N.W. Greenwood • P.O. Box 1151 • Bend, Oregon 97709-1151 • (541) 382-4331 • Fax (541) 389-3386 005 07/17/98- FRI 10:14 FAX 503 982 2960 C.0.Rome Health The proposed meeting hall contains a 3,200 sq. ft. meeting room, a kitchen, restrooms, a rental office, and storage and mechanical areas. Primary access to the meeting hall is via a pone cochere into the rental office on the west side of the north end of the building, and through a covered porch entry on the west side of the building directly into the meeting room. An overhead door is provided on the west side of the south end of the building. Several doors lead out from the east side of the building into the enclosed pool/patio area. The 1,480 sq. ft poolhouse is located at the south end of the pool/patio area and features a locker room with showers and rest rooms, and enclosed saunas. The north side of the building, facing the pool, is a covered portico over spas and a deck area. An 1,870 sq. ft. swimming pool and wading pool are located within the bend of the "L" formed by the poolhouse and meeting hall. The pool features large patio areas and a recirculating stream and waterfall within a landscaped, fenced enclosure. A shall patio area adjacent to the meeting hall will serve as an outdoor dining area for snacks prepared in the kitchen and passed through a window/counter, Access to the pool will be through the meeting hall building and through an entrance gate at the end oft!. pergola -covered walkway at the south end of the meeting hall. Domestic water to the facility will be provided by the existing Widgi Creek Water System, which utilizes wells. The wells which supply the system were drilled with the intention of providing domestic water to up to 103 condominium units. Thus, the wells have more than sufficient capacity to handle the additional demand. An 8" water line will be located within the private streets with connections to all units. Irrigation water for landscaped areas will be provided through underground irrigation lines from the existing golf course irrigation system, which also utilizes wells. The wells are located at the northwest corner of the project. Electrical power will be provided utilizing underground lines to be installed in the private streets. Pacific Power & Light is the power provider. Telephone, cable television, and gas will be provided by U.S. West Communications, Bend Cable, and Cascade Natural Gas respectively. Those utility lines will also be located underground in the private streets. Fire protection is provide by the Bend Fire Department through a structural protection contract. The street layout and hydrant locations have been developed through consultation with the Department. A secondary emergency access will be provide to existing roads within the Inn of the 7th Mountain. The Fire Department has not expressed any concern about their ability to provide service to the development. Garbage and recyclable materials will be handled through a franchised hauler to the Knott Landfill and Recycling Center. A trash dumpster enclosure will be provided at the north side of the building, adjacent to the loading area. Elkai Woods Amenities Complex Burden ©f Proof Page 3 Bryant Gcvl;en ®far#s 40 N.W. Greenwood ■ P.O. Box 1151 • Bend, Oregon 97109-1151 • (541) 382.4331 • Fax (541) 389-33116 Jaoa 07/17/98 FRI 10:15 FAX 503 382 2960 C.O.Home Health CONCLUSIONARY FINDINGS: 1. Conformance with Widgi Creek Master Development Flan: A. The Development now known as Widgi Creek has a long land use approval history dating back to a zone change, conditional use permit, and master plan approval in 1983 for an expansion of the Inn of the 7th Mountain Destination Resort. The expansion, approved under MP -83-1 and CU -83-107, was to include an 18 -hole golf course and 210 residential units including single family homesites and condominiums or townhomes. As documented in the County findings and decision for declaratory ruling file AD -95-16, the plan has been modified several times in the 13 years since the original' approval. However, the basic premise of 210 residential units built around an 18 -hole golf course has not ged. D. As found in AD -95-16, the development of the site has lawfully occurred, and Is allowed to proceed under the terms of the previously granted land use approvals. Specifically, AD -95-16 concludes: "The Seventh Mountain Golf Vill e/Widgi Creek development has been determined to have been "initiated", and the condominium development on the site can proceed subject to the following two conditions. "1. A total of no more than 103 condominium units can be constructed in the area approved for condominiums within the development. 2. Site Plan Approval from the Planning Division shall be required prior to any development of the condominiums." The Applicant has received tentative plat master plan approval to develop 86 townhome units, to be known as Elkai Woods, within the area previously • and approved for condominhins within the development. Also included on the Woods master plan was the amenities buikling, including meeting room and pool/spa facilities. With this submittal, the Applicant is applying for site plan approval for the recreational amenities complex previously identified in the Elkai Woods master plan. D. The original master plan approval for what was then known as Seventh Mountain Golf Villa,ge, as well as several subsequent modifications of that original application, originally called for a destination resort consisting of 90 single family recreational/residential lots, 120 condominiums, an 18 -hole golf course, a lodge and related recreational facilities. The master plan burden of proof statement specified that there would be a golf clubhouse with Elkai Woods Amenities Compler Burden of Proof Page 4 Lovilen Jarvis 40 N.W Greenwood • P.O. Box 1151 • Bnd, Oregon 97t709,1g1 . (541)382-4331 • Fax (541) 389-3386 1:21 007 07/17/98 FRI 10:16 FAX 503 382 2960 C.O.aome Health a restaurant, meeting rooms, tennis courts, swimming pool, sawn$, whirlpool and lodging facilities. This master plan was approved in County File Nos. MP -83-1 and CU -83-107. The Decision identified the fact that phase I of the development would include the clubhouse and that the applicant had proposed to develop a golf clubhouse with restaurants and meeting rooms, four tennis courts, and a swimming pool with sauna and whirlpool. Again, no reference was made to any specific sizes. In 1985, a request was approved to modify the conditions of approval of the master plan that had been approved in File No. MP -83-1 (modification file MC -85-13). The reason for the modification of conditions was to modify the phasing schedule for the destination resort. Paragraph 3 of the Burden of Proof Statement submitted in support of MC -85-13 reads as follows: "The clubhouse is to be modified from the clubhouse originally contemplated by the approval in CU -83-107. The clubhouse will consist of approximately 5,000 square feet with a limited restaurant and lounge area. Cart storage will be in the basement and will include a pro shop. The meeting rooms and restaurant/bar originally contemplated for the clubhouse will be constructed as part of the condominium development." The Decision approving MC -85-13 reflects that the clubhouse would be modified to allow approximately 5,000 square feet with a limited restaurant and lounge area. The Decision did not quite accurately reflect that what was being done was a phasing of the clubhouse development into at least two different phases. The first one would be the 5,000 square foot clubhouse with limited restaurant and lounge, which is essentially what exists today. When the condominium development was to be built, there would be an expansion of the clubhouse for additional meeting rooms, restaurant area and underground (basement) cart storage. Tentative Plat and Site Plan approval of the condominium development (Elkai Woods Townhomes - County files TP -96-857 and SP -96-10) was recently granted. The Applicant has recently submitted a site plan application to allow expansion of the golf clubhouse. That review is pending concurrent with this proposal. The proposed clubhouse expansion and amenities complex are in line with what was requested in MC -8S-13, when an interim -type lodge facility was approved to be built until the condominium development was started. The site plan map submitted in support of Elkai Woods Amenities Camplex Burden of Proof Page 5 Bryant IQvIien m Jarvis Al m.' ammo,RTIJW 40 N.W. Greenwood • P.O. Box 1151 I Bend, Ore6cm 97709-1151 • (541) 382-4331. Fax (5411 389-3386 008 07/17/98 FRI 10:17 FAX 503 382 2960 C.O.Home Health MC -85-13 shows the location of the clubhouse and lodge facility in its present location, which at that time were adjacent to the area planned for condominiums. A subsequent modification in 1988 relocated the condominium area to the present area being developed as the Elkai Woods Townhomes. In accordance with the relocated condominiums, the planned lobby, meeting room, overflight accommodations, additional food and beverage service and pool/spa facility was also relocated from the main lodge area to the condominium area. With the filing of site plans for the clubhouse expansion and ame will y be completed with all of the thciiities and recreational contemplated in the 1983 master plan. complex, the resort 'ties originally Conformance with Title 18 of the Deschutes County Code, Zoning: A. Chapter 18.40, Forest Use - F-2 Zone; RESPONSE: The Applicant is developing a portion of the site previously approved for condominium development in accordance with the Widgi Creek Master Development Plan (see County file -AD -95-16). The proposed amenities complex is accessory to the Woods townhomes, and was conceptually approved as a part of the F.ilrai Woods master plan approval. The purpose of this site plan is to ensure that development standards such as parking and landscaping requirements are met. As such, the provisions of the F-2 Zone are not directly applicable to this review. Chapter 18.84, Landscape Management Combining Zone: 1. Section 18.84.050, Use Limitations. (a) Any new structure or substantial alteration of a structure requiring a building permit, or an agricultural structure within an LM Zone shall obtain site plan approval in accordance with this chapter and Chapter 18.124, Site Plan Review, prior to construction. (c) Structures which are not visible from the designated roadway, river or stream and are assured of remaining not visible because of vegetation, topography or existing development are exempt from the provisions of Section 18.84.080 (Design Review Standards) and Section 18.84.090 (Setback Standards). An applicant for site plan review in the LM Zone shall conform with the provisions of this chapter, or may submit evidence that the proposed structure will not be visible from the designated road, river or stream. Structures not visible from the designated road, river or stream must meet setback standards for the underlying zone. Elkai Woods Amenities Complex Burden of Proof Page 6 kart 1nvlien ■Jarvis mWMMMWMWJAN ATRIPNN4N 40 N.W. Greenwood • P.O. Box 1151 • Bend, Oregon 97709.1151 • (541) 382.4331 • Fax (541) 389-3386 boos 07/17/98 FRI 10:18 FAX 503 382 2960 C.©.Home Health RESPONSE: The Landscape Management Combining Zone extends out 1/4 mile from both Century Drive to the west and the Deschutes River to the east. The Elkai Woods Townhomes lie between the two LM condors, which overlap on the site. Thus, the entire site is within the LM Zone, The amenities complex will be within the LM zone associated with Century Drive, and will most likely be slightly visible from Century Drive. Due to the topography of the area, the buildings will not be visible from the Deschutes River. 2. Section 18.84.080, Design Review Standards. The following standards will be used to evaluate the proposed site plan: (a) Except as necessary for construction of access roads, building pads, septic drainfields, public utility easements, parking areas, etc., the existing tree and shrub cover screening the development from the designated road, river or stream shall be retained. This provision does not prohibit maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act or agricultural use of the land. RESPONSE: Existing vegetation between the amenities eomplex and Century Drive consists primarily of the 17th fairway. There are trees on the west side of the fairway along Century Drive as well as some trees and shrubs along the east side of the fairway adjacent to the townhonie building which provide some screening. These trees and shrubs will be retained. (b) It is recommended that new structures and additions to existing structures be finished in muted earth tones that blend with and reduce contrast with the surrounding vegetation and landscape of the building site. RESPONSE: The amenities building and poothouse will be finished with 4" horizontal lap wood siding, painted in Behr #326 Taupe (please refer to color chart in Elkai Woods piaster plan approval file). Trim will be painted Behr #375 Dove Brown, and doors will be painted Behr #514 Hemlock Green. All three of these colors are muted earth tones in gray -tone browns and greens that blend well with the surrounding vegetation and landscape of the site. (c) No Targe areas, including roofs, shall be finished with white, bright or reflective materials. Roofing, including metal roofing shall be non -reflective and of a color which blends with the surrounding vegetation and landscape. Elkai Woods Amenllies Complex Burden of Proof Page, 7 Bryant [.aviiai IIS Jarvis 1plemal61.10Wpl nlipRMMWf (0 N.W. Greenwood • P.O. Box 1151 • Bend, Oregon 97709.1151 ' (541) 382-4331 • Fax (5411 3994336 • Q010 07/17/98 FRb_10:19 FAX 503 382 2960 C.O.Home Health RESPONSE: Roofing will be "barlcwood" composition asphalt shingles, a medium brown color which will blend effectively with the bark on surrounding tree trunks. (d) Subject to applicable rimrock setback requirements or rimrock setback exception standards in Section 18.84.090, all structures shall be sited to take advantage of existing vegetation, trees and topographic features in order to reduce visual impacts as seen from the designated road, river or stream. RESPONSE: There are no rimrocks near the amenities complex. The building will be situated behind existing vegetation consisting of both trees and shrubs on both sides of the 17th Fairway. The combination of vegetation and the considerable distance (over 500') between the building site and Century Drive combine to reduce the visual impacts of the structure. (e) Structures shall not exceed 30 feet in height measured from the natural grade on the side(s) facing the road, river or stream. Within the LM Zone along a state scenic waterway or federal wild and scenic river, the height of a structure shall include chimneys, antennas, flag poles or other projections from the roof of a structure. This section shall not apply to agricultural structures located at least 50 feet from a rimrock. RESPONSE: The proposed structure will have a maximum height above grade of less than 26 feet. (f) New residential or commercial driveway access to designated landscape management roads shall be consolidated wherever possible. RESPONSE: The amenities complex will take access from the private street system within Widgi Creek. Widgi Creek has one primary access onto Century Drive (a secondary emergency access is provided through the Inn of the 7th Mountain). (g) New exterior lighting, induding security lighting, shall be sited and shielded so that it is directed downward and is not directly visible from the designated road, river or stream. RESPONSE: All exterior lighting will be sited and shielded in accordance with this standard and the provisions of Chapter 15.10 of the County Code, Outdoor Lighting Control. (h) The Planning Director or Hearings Body may require the establishment of introduced landscape material to screen the development, assure compatibility with existing vegetation, reduce glare, direct automobile and Elkai Woods Amenities Complex Burden of Proof Page 8 Bryant i.c tion ■ Jarvis t0 N.W. Cmenwood • P.O. Box 1151 • Bend, Oregon 97709.1151 • (541) 382.4331 • FaK (540 389-3386 lib 011 07/17/98 FRI.10:20 FAL 503 382 2960 C.O.Bome Health Z012 pedestrian circulation or enhance the overall appearance of the development while not interfering with the views of oncoming traffic at access points or views of mountains, forests and other open and scenic areas as seen from the designated road, river or stream. Use of native species shall be encouraged. RESPONSE: Introduced landscaping will be provided in accordance with the requirements of Site Plan Review as depicted on the she plan. The landscaping will be introduced in order to enhance the overall appearance of the development. The landscaping will not interfere with any views from Century Drive. Native species will be used where appropriate. (1) No signs or other forms of outdoor advertising that are visible from a designated landscape management river or stream shall be permitted. Property protection signs (no trespassing, no hunting, etc,) are permitted. RESPONSE: No signs visible from the Deschutes River are proposed. (j) A conservation easement as defined in Section 18.04.030, "Conservation Easement," and specified in Section 18.116.220, shall be required as a condition of approval for all landscape management site plans involving property adjacent to the Deschutes River, etc.... Conservation Easements required as a condition oflandscape management site plans shall not require public access. RESPONSE: The amenities complex is not adjacent to the Deschutes River. C. Chapter 18.88, Wildlife Area Combining Zone: 1. Section 18.88,040, Uses Permitted Conditionally. Except as provided in Section B, in a zone with which the WA Zone is combined, the uses conditional use permitted shall be those permitted conditionally by the underlying zone subject to the provisions of the Comprehensive Plan, Section 18.128 of this title and other applicable sections of this title. RESPONSE: In County Declaratory Ruling file AD -95-16, it was determined by the County that the development of the Widgi Creek site has lawfully occurred, and that further development in accordance with the approved master plan may take place. Conformance with the master plan has been addressed previously in this Burden of Proof statement. Elkai Woods Amenities Complex Burden of Proof Page 9 Bryant Lcr n 8l<arvss 40 N.W. Greenwood ■ P.O. Box 1151 ■ Bend, Oregon 97709-1151 ■ (541) 382-4331 • Fax (541) 389-3386 07/17/98 FRI 10:21 FAX 603 382 2960 C.O.Home Health 0013 4. Chapter 18.116, Supplementary Provisions; A. Section 18.116.030, Off -Street Parking and Loading. (D)(h) Number of Spaces Required. Other uses not Specifically listed above shall be provided with adequate parldng as required by the Planning Director or Hearings Body. The above list shall be used as a guide for determining requirements for said other uses. RESPONSE: A meeting hall or pool building is not a specific use listed in the parking standards. The Applicant suggests that the most similar type of use in terms of parking requirements would be a "club or lodge", which requires "spaces to meet the combined requirements of the uses being conducted such as hotel, restaurant, auditorium, etc." To further complicate matters, the complex is an accessory use to townhomes, the users of which will most likely walk or bike to the amenities complex. The Applicant proposes to provide 31 paved parking spaces at the complex in addition o a bicycle parking area. The Applicant believes that the 31 automobile spaces pro will be adequate to accommodate all vehicles, as the great majority of those using the facility will be residents or s at the Elkai Woods Townhomes who will walk or bicycle to the facility. Bicycle parking spaces are provided at the entrances to both the pool and meeting hall. (F) Development and Maintenance Standards for Off -Street Parking Areas. (a) An off-street parking area for more than 5 vehicles shall be effectively screened by a sight -obscuring fence. RESPONSE: The parldng area contains more than 5 vehicle spaces. The p area will be screened from the nearby residential building lots by a combination of existing and introduced landscaping consisting of trees and shrubs. The parking area will be screened from off-site view by townhomes, existing trees, and distance. (b) Any lighting used to illuminate off-street parking areas shall be so arranged that it will not project light rays directly upon any adjoining property in a residential zone. RESPONSE: Shielded lighting will be used in the parking area. Fixtures will be used which project light downward to prevent light rays from projecting directly upon adjoining residential property. (c) Groups of more than two (2) parldng spaces shall be located and designed to Elkai Woods Amenities Complex Burden of Proof Page 10 Eryant LoviiTyi Jarvis 40 N.W. Greenwood • F.O. Box 1151 u 13end, Oregon 97709-1151 • (541) 382-4331 • Fax (541) 389-3356 07/17/98 FRI 10:22 FAI 503 382 2960 C.O.Home Health Zo14 prevent the need to back vehicles into a street or right-of-way other than an alley. RESPONSE: The parking spaces are located and designed so that no backing movement into a street is required. (d) Areas used for standing and maneuvering of vehicles shall be paved surfaces adequately maintained for all-weather use and so drained as to contain any flow of water on the site. RESPONSE: The new parking area and access drives will be paved with asphaltic concrete. Drainage will be into catch basins as indicated on the site plan. Catch basins will drain into drywells located within the landscaped areas. Section 18.116.031, Bicycle Parking. (A) Number and Type of Bicycle Parking Spaces Required. (a) General Minimum Standard. All uses that require off-street motor vehicle parking shall, except as specifically noted, provide one bicycle parking space for every five required motor vehicle parking spaces. Except as specifically set forth herein, all such parking facilities shall include at least two sheltered parking spaces. RESPONSE: Covered bicycle parking spaces will be provided under the porch roof at the building's main entrance and pool gate. Showers and changing rooms are provided as a part of the poolhouse. 5. Chapter 18.124, Site Plan Review: A. Section 18.124.060, Approval Criteria. Approval of a site plan shall be based on the following criteria: (a) The proposed development shall relate harmoniously to the natural environment and existing development, minimizing visual impacts and preserving natural features including views and topographical features. RESPONSE: The proposed development is located in an existing developed area that has been designed and developed to relate harmoniously to the natural environment and minimize visual impacts. The proposed building has been designed to compliment the , existing structures in Widgi Creek as well as the townhonies. The addition will be finished to match the materials and colors of the existing development in Widgi Creek. Since the area proposed for improvement is already impacted by development, th Elkai Woods Amenities Complex Burden of Proof Page 11 Bryant Lovlien ElJarvis 40 N.W. Greenwood • 1 O, Box 1151 • Bend, Oregon 97709.1151 • 45411 3824331 • Fax 1541) 389-3386 07/17/98 FRI 10:23 FAX 503362 2960 C.O.Home Health 0015 proposal will have very mir and topographical features. pact on the natural features of the site, including vi (b) The Landscape and existing topography shall be preserved to the greatest extent possible, considering development constraints and suitability of the landscape and topography. Preserved trees and shrubs shall be protected. RESPONSE: The site plan has been designed to preserve as many existing trees as practicable. Those which are directly impacted by development will be either relocated or replaced with similar species at the perimeter of the site to provide a natural visual screen. Ponderosa pine trees 6" and smaller will be relocated around the enclosure. Those larger than 6" will be replace with Colorado spruce, which is more resistant to porcupine damage. Those trees which wiU remain in place will be protected during the construction process by retaining walls and tree wells to keep them from being damaged. The topography of the site does not require any significant modification to accommodate construction The site has a slight slope downward from west to east, but no significant topographic features. (c) The site plan shall be designed to provide a safe environment, while offering appropriate opportunities for privacy and transition from public to private spaces. RESPONSE: The complex is designed to obtain these objectives. The buildings will be constructed to comply with all applicable building safety codes. Appropriate transitions in the way of doorways and curtains have been provided between the "public" portions of the building and the "private" shower/restroom/locker areas. A security fence will be provided around the perimeter of the pool area. (d) When appropriate, the site plan shall provide for the special needs of handicapped persons, such as ramps for wheelchairs and Braille signs. RESPONSE: Three handicapped accessible parking space will be provided in the parking areas. A wheelchair ramp will be provided at the main entrance. Handicapped accessible showers and bathrooms will be provided. All structures will be designed and built to comply with applicable requirements of the Americans with Disabilities Act. (e) The location and number of points of access to the site, interior circulation patterns, separations between pedestrians and moving and parked vehicles, and the arrangement of parking areas in relation to buildings and structures shall be harmonious with proposed and neighboring buildings and structures. RESPONSE: The amenities complex is designed to serve the residents and guests of Elkai Woods Amenities Complex Burden of Proof Page 12 40 N.W. Greenwood . P.O. Doc 11 on 97709-1151 • {541} 382-4331 • Fax (. 389-3386 07/17/98 FRI 10:24 FAX 503 382 2860 C.O.Home Health Widgi Creek, primarily the Elkai Woods Townhomes, It is anticipated that most of the users of the facility will park their vehicles at their individual townhomes and either walk or bicycle to the facility. As such, the parking area proposed is much smaller than what would typically be found for a "stand alone" meeting room and pool. As discussed in the Elkai Woods master plan, the roadways are sized to accomodate bicycles and pedestrians. Walkways lead from the roadways directly to the entrances. Covered bicycle parking is provided at the primary building entrance and the main pool entrance. Pedestrian circulation on the site is provided by paved walkways. Vehicular circulation and access for those who do drive to the facility is via a parking area on the west side of the building. The parking area features two driveways, one at either end, to facilitate a through -flow of traffic. A drive through porch, or porte cochere, is provided at the primary building entrance. A pergola covered walkway leading to the pool entrance extends into the parking area to provide a drop-off point. (f) Surface drainage systems shall be designed to prevent adverse impacts on neighboring properties, streets, or surface and subsurface water quality. RESPONSE: All paved areas will be drained into catch basins leading to drywells. The dlywells will be DEQ approved in order to prevent adverse impacts on neighboring properties, streets, and surface and subsurface water quality. (g) Areas, strictures and facilities for storage, machinery and equipment, service (mail, recuse, utility wires, and the like), loading and parking and similar accessory areas and structures shall be designed, located and buffered or screened to minimize adverse impacts on the site and neighboring properties. RESPONSE: All such areas, structures and facilities will be located inside of the enclosed perimeter wall in order to minimize adverse impacts on the site and neighboring properties. (h) All above -ground utility installations shall be located to minimize adverse visual impacts on the site and neighboring properties. RESPONSE: All utility installations will be underground in order to eliminate any adverse visual impacts. (i) Specific criteria are outlined for each zone and shall be a required part of the site plan (e.g. lot setbacks, etc.) RESPONSE: Specific zoning standards for the site have been addressed above. Elkai Woods Amenities Complex Burden of Proof Page 13 Bryant Lovlien 0 rarv(s ... Qmvnf4W 40 N.W. Greenwood • P.O. Box 1151 • Bend. Oregon 97709-1)5) • (541) 3824331 • Fax (541) 389-3386 Eli at 07/17/98 FRI 10:25 FAX 503 382 2960 C.O.Home.Health (j) All exterior lighting shall be shielded so that direct light does not project off-site. RESPONSE: The lighting plan for the site calls for new wall sconces to light the exterior of the building. All of the exterior lights will be shielded so that direct light does not project off --site. In addition, all exterior lighting will be designed to comply with Chapter 15.10 of the County Code, Outdoor Lighting Control. B. Section 18.124.070, Required Minimum Standards. 1. (B) Required Landscaped Areas. (a) The following landscape requirements are established for multi -family, commercial and industrial developments, subject to site plan approval: 1. A minimum of 15% of the lot area shall be landscaped. 2. All areas subject to the final site plan and not otherwise improved shall be landscaped. RESPONSE: The landscaped portions of the site, which will include both natural undisturbed areas and areas of introduced turf, trees and shrubs, encompass 30,175 sq. ft., or 42% of the 70,775 sq. ft. lot area. All areas not otherwise improved will either retain the natural vegetation or be planted with introduced or re -located landscaping in the way of turf ponderosa pine, Colorado spruce, Austrian pine, arctic willow, sheep fescue, and killnikinnick. (b) In addition to the requirement of subsection (B)(a)(1) of this section, the following landscape requirements shall apply to parking and loading areas: 1. A parking or loading area shall be required to be improved with defined land-scaped areas totaling no less than 25 sq. ft. per parldng space. 2. In addition to the landscaping required by subsection (B)(B)(1) of this section, a parldng or loading area shall be separated from any lot line adjacent to a roadway by a landscaped strip at least 10 feet in width, and form any other lot line by a landscaped strip at least five feet in width. 3. A landscaped strip separating a parking or loading area from a street shall contain: i. Trees spaced as appropriate to the species, not to exceed 35 feet apart on Elkai Woods Amenities Complex Burden of Proof Page 14 &yant Iavlien 0 Jarvis 40 N.W. Greenwood • P.O. Box 1151 ■ Bend, Oregon 97709.1151 ■ (541) 382-4331 ■ Fax (541) 389-3386 gi017 07/17/98 IRI 10:25 FAX 503 382 2960 C.0.11ome Health the average. H. Low shrubs not to reach a height greater than 3'0", spaced no more than 8 feet apart on the average. Hi. Vegetative ground cover. RESPONSE: The parking area contains 31 parking spaces, which will require 775 square feet of landscaping within defined areas. The defined landscaped areas to be provided within and immediately surrounding the parking area are larger than 1,500 sq. ft. in size. All parking and loading areas are separated from adjoining streets by at least 10 feet of landscaped area. Tree spacing within this area is no more than 35 feet on average, with an understory of sheep fescue at a height not to exceed 3 feet and a spacing of 8 feet. The parking area is separated from the north property line by at least 5 feet of landscaped strip planted in a screening hedge of dwarf arctic willow and trees. (c) Landscaping in a parking or loading area shall be located in defined landscaped areas which are uniformly distributed throughout the parking or loading area. RESPONSE: The landscaping in the parking area is located within defined areas around the perimeter and within two landscaped extensions into the center of the parking area. (d) The landscaping in a parldng area shall have a width of not less than five feet. RESPONSE: The landscaping in the parking meets this minimum width requirement. (e) Provisions shall be made for watering planting areas where such care is required. RESPONSE: Landscaping within the parking area will be of a type which requires minimal amounts of irrigation. When needed, irrigation can be provided from the golf course irrigation source. (i) Required landscaping shall be continuously maintained and kept alive and attractive. RESPONSE: The Applicant will comply with this standard as a continuing condition of approval. (g) Maximum height of tree species shall be considered when planting under overhead utility lines. Elkai Woods AmenittesComplex Burden of Proof Page 15 ,� Latest Jarvis 1011.14/. Greenwood • P.O. Box 1151 • Bend, Orrgon 97709.1151 ■ 15411382-4331 • Fax (541) 389-3386 11018 07/17/98 FRI 10:26 FAX 503 382 2960 C.O.Home Health RESPONSE: There are no overhead utility lines on site. CONCLUSION: The Applicant has demonstrated conformance with all applicable standards required for approval of a site plan review for the Elkai Woods Amenities Complex. Administrative review and approval is respectfully requested. Submitted this / day ofAugust, 1996 BRYANT LOVLIEN & JARVIS Robert S. Lovlien, Attorney for Applicant DEV:dev Elkai Woods Amenities Complex Burden of Proof Page. 16 Bryant LovIirn U Jarvis 40 NM. Greenwood • P.0, Box 1151 • Bend, Oregon 97709-11ln (541) 3024331 • Fax (541) 389.3356 gym 7 sP-618-47. Community Development Department ,dtli..)„,trralefeatteiertiaiyAitiiadteeetatieeleirr,,,!:: 117 NW Lafayette Avenue • Bend, Oregon • 97701-1925 (5411388-6575 FAX 385-1764 Planning Division Building Safety Division Environmental Health Division FINDINGS AND DECISION FILE NUMBER: SP -98-42 APPLICANT: PROPERTY OWNER: REQUEST: AGENT: Widgi Creek Golf Club Inc. 18707 Century Drive Bend, Oregon 97702 Yamazoe International 222 SW Columbia, Suite 1200 Portland, Oregon 97201 The applicant Is requesting approval of a Site Plan for an amenities complex for the Elkai Woods townhome project within the Widgi Creek/Seventh Mountain Golf Village development in an F-2 zone. Michael G. Parich, Architect 7905 S.W. 1351h Avenue Beaverton, Oregon 97008 STAFF CONTACT: Paul Blikstad, Associate Planner (1.44 I. APPLICABLE CRITERIA: \6> Title 18 of the Deschutes County Code, the County Zoning Ordinance. - Chapter 18.40, F-2 zone - Chapter 18.84, Landscape Management zone - Chapter 18.88, Wildlife Area zone - Chapter 18,124, Site Pian Review - Section 18.116,030, Off-street parking and loading - Section 18.116.031, Bicycle parking Title 22 of the Deschutes County Code, the Deschutes County Development Procedures Ordinance. PL -20, the Deschutes County Year 2000 Comprehensive Plan. SP -98-42 Page 1 Quality Services Performed with Pride II. BASIC FINDINGS: A. LOCATION: The subject property islocated within the Creek/Seventh Mountain Golf Village development adjacent to hole nos. 13, 14, 15, 16, 17 and 18 of the Widgi Creek golf course. The entire golf course development and Eike' Woods project is located on the tax lot identified on Deschutes County Assessor's Map as #18-11, 2000. B. ZONING: The subject property is zoned F-2, with an LM, Landscape Management VV and WA,combiningbks designated Forest and Landscape Management on the Deschutes County Comprehensive Plan. C. SURROUNDING LAND USE: The property is located in an area of limited development, except for the Inn of the 7th Mountain and the INidgi Creek/Seventh Mountain developments. The area outside of these developments is all forest land. Across the Deschutes River from these developments is a portion of the Deschutes RiverWoods subdivision. O. SITE DESCRIPTION: The applicant's burden of proof statement contains an accurate site description on page 2 of the original burden of proof (the original burden of pro0 for file no. SP -96-74), and is incorporated herein by reference. E. PROPOSAL: The is requesting Site Plan approval for an amenities complex for the Elkai Woods townhonmm development within VVidgi Creek. The applicant describes the proposed pject on pages 1 and 2 of the burden of proof as follows: "The Applicant is seeking site plan review and approval of a recreational amenities complex associated with the Elkai Woos TownhomeThe complex will consist of a 3.548 square foot check-in area with lobby and locker room building, a 732 square feet sauna/workout huUdinQ, and a 360 square foot mechanical building for the i and spas. Along ith these structures, there shall be approximately 5000 square feet of mderior walkway and patio area. The site shall be well landscaped and fenced around pool facility areas. Access to the pool and play areas shall be through the lobby of the main building, and to gates. All fencing and gates shall be painted green metal to blend into the complex, as well as designed to the requirements of the Health Department. A paved parking area with 27 stalls shall be provided, along with a drop-off area for users. The main building shall consist of two basic sides; the first, for visitor check-in and sundries, and the second, for toilet room and shower/locker facilities for users of the amenities grounds and pool/spa areas. The visitor check-in portion of this building shall include a h'U ber vaulted lobby including an oversized fireplace. The square footage of this lobby is approximately 400 square feet. The lobby connects the entry area off the parking hot, to the south side of the building where pool activities occur. The locker area of the building houses toilet .room funct|wna, along with the shower and locker aneom, for both men and women. The second structure is a work-out/sauna building, off the locker side of the main building. As mentioned, there shall be a weight room/work-out room, as well as a sauna. A raised cold poo/ is just off the sauna. There is a storage room for lawn furniture and other patio material as well. SP -98-42 The last structure is a small 360 square foot mechanical buildlng for p001 pumps and the like. We have located this structure well into the site so as not to rnake a vlsual or noise impact for this complex or neighboring townhomes. As noted on the site plan, there i 30 foot by 60 foot lpool to the side. The wading pool is 12 foot by 12 foot. An octagonal spa as well as a cold pool by the sauna shall be part of this project. On the far side of the site, there will be .two free -formed spas nestled within rock features. A recirculating stream and waterfall feature shall be designed around these two spa areas. The patio areas shall meander through the landscape areas as shown on the site plan. Des,e preas will be for users of the pool areas, and social gatherings by, guests of Widgi Creek. Domestic water, electrical power, fire be provided as per the previously approved findings of fact. The garbage and recycling center shall be located on the southwesterly side of the spa/work-out building, and designed to take advantage of existing and new landscape. We shall review the proposed recycle center with the local franchise hauler for accessibility and design. F. The Planning Division sent notice of the proposed land use application to several public agencies and received the foliowing comments: A. The Bend Fire Department states the foliowing conditions: Fire Safety During Construction - 1996 OUFC ARTICLE 87 Approved fire department access roads, required water supply and fire hydrants shall be installed before any Combustible construction commences. Water Supply - 1996 OUFC Appendix IiI-A The required water supply far fire suppression for this building shall be 2.000 gallons per minute at 20 P.S.I. residual pressure. This flow requirement Is based on Type V -N 5570 sq. ft. building construction (If sprinklered 1500 GPM + sprinkier system demand). Fire Hydrants - 1991 OUFC Section 903 The minimum amount of fire hydrants needed on this site shall be two spaced no more than 150 feet from the most remote portion of the building measured by an approved route around the exterior of the facility or building and outside of the building collapse zone. (If -sprinklered 1 Fire Hydrant Spacing —1B86DUFCTable A,U|-8' Fire hydrants shall be located along the route of the fire apparatusancesw roadway and spacing of hydrants shall not exceed 500 feet. Obstruction & Protection of Fire Hydrant ^1996OUFC 903.4.3 A 3-fot clear space shall be maintained around the circumference offiro hydrants. When exposed to vehicular damage, fire hydrants shall be SP -98-42 Page 3 SP -98-42 Page 4 suitably protected by concrete curbing, sidewalks, or 4 -Inch concrete filled bollards placed 3 feet from hydrant. Premises Identification - 1996 OUFC 901.4.4 Approved numbers or addresses shall be placed on all new and existing buildings in such a position as to be plainly visible and legible from the street or road fronting the property. Said numbers shall contrast with their background and be visible at night. Dwellings and Foster Homes that are located off of street frontage shall post a visible approved reflective address sign at the entrance to their driveway. (Signs are available at local fire stations) Street or Road Signs - 1996 OUFC 901.4.5 Streets and roads shall be identified with approved signs. Fire` Lanes - 1996 OUFC 901.4.5 (1.) Fire lane curbs shall be painted bright red with white letters. The stroke shall be 1 inch with letters 6 Inches high to read "No Parking Fire Lane". Spacing for signage shall be every 25 feet Fire Apparatus Access Roads - 1996 OUFC 902.2 Fire apparatus access roads shall be placed within 150 feet of all exterior walls of the first floor of all buildings. Fire apparatus access roads shall have an unobstructed width of not less than 20 feet designed with a uniform all-weather driving surface to support the imposed GWV of 50,000 lbs. and a vertical clearance of not less than 13 feat 6 inches. Turning radius shall not be less than 45 feet and gradient shall not exceed 12 percent. Dead-end access roads in excess of 150 feet in length shall be provided with approved provisions for the turning around of fire apparatus. A cul de sac, hammerhead or other approved means for the tumirig around of fire apparatus may be approved. Key Boxes - 1996 OUFC 902.4 Key Box (Knox Box) for Fire Department access is required to be Installed at the front door entrance. An application for the Knox Box is available by calling the Fire Prevention Office at 388-5536. Portable Fire Extinguishers - 1996 OUFC Section 1002 Fire extinguishers rating shall not be less than a 2-A, 10-13:C, Maximum unobstructed travel distance to arty approved extinguisher shall not be more than 75 feet. Dumpsters - 1996 OUFC 1103.2.2 Durnpsters of 1.5 cubic yards or more shall not be stored in buildings or placed within 5 feet of combustible walls, openings or combustible roof eave lines unless such containers are provided with an approved automatic sprinkler system. Gas Meters & Piping - 1996 OUFC Section 1106 Above ground gas meters, regulators and piping exposed to vehicular damage due to proximity to alleys, driveways or parking areas shall be protected in an approved manner. Smoking — 1996 OUFC 1109.4 No Smoking signs shall be conspicuously and suitably located in each building, and on outside of structure. Fire Alarm Systems - 1996 OUFC Section 1007 Installation and maintenance of fire alarm systems shall be in accordance with section 1007.2. Control units, annunciator panels and access keys shall he maintained at a location approved by the chief. Fire Sprinkler Systems - 1995 OUFC Section 1003 Fire -Extinguishing systems shall be installed in accordance with the Building and Fire Codes. Fire hose threads used in connection with fire extinguishing systems shall be national standard hose thread. Fire Sprinkler Apparatus and Installation - N.F.P.A. Standards Fire sprinkler systems shall be installed in accordance with approved U.B.C. and N.F.PA. standards. Fire Extinguishing Equipment for Kitchen Appliances - 1996 OUFC Section 1005 Approved fire suppression equipment systems shall be provided for the protection of commercial -type food heat processing equiPment. B. The. County Property Address Coordinator states that the address for the amenities building will be 60540 Seventh Mountain Drive. C. The County Environmental Health Division states that the swimming pool and spa require plan review and licensure by Deschutes County Environmental Heatth. D. The County Building Division had no comments. E. The Oregon State Parks and Recreation Department states that the site plan complies with the Upper Deschutes River Scenic Waterway regulations. F. No response was received from the Oregon Department of Transportation, US Vtest Communications and Pacific Power and Light. G. The City of Bend submitted the following conditions for the original site plan application (SP -96-74): 1. The water syltem is private. The applicant will need to provide a SP -98-42 Page 5 Exhibit 12 Page 5 of 11 test of this system to assure the system can meet required tire flows. This will need to be approved by the City of Bend. 2. The applicant will need to sign sewer agreements with the City of Bend for additional sewer use, including paying sewer SDCs. A grease trap Is required to be installed on the clubhouse sewer service line. The applicant will need to Verify with the Engineering Division that the existing sewer pump station has adequate capacity for the new development. 3. The applicant will need to coordinate with the City Laboratory Manager, BeV Sunderland, for the maintenance Of the pool, specifically relating to the drainage of the pOol. If the water is proposed to be disposed in the City sewer, the applicant will need to coordinate when this will be done and how quickly the pool will be drained. We have concern about the capacity of the pump Station. If the applicarit drains the water to a surface pond, they Will need a permit from' DEQ. G. The subject properly is recognized by the Planning Division as a legal lot of record for development purposes. It is part ofthe overall Seventh Mountain Golf VillageNVidgi Creek project H. The Planning Divisicin received no response to the public notice sent out on this application. III. CONCLUSIONARY FINDINGS: 1. The applicant haS stated on pages 4-6 of the original burden of proof statement the reasons they 'believe the pronosed amenities complex is ConsiStent with the previouiapprovals oranted,for the Wdql -Creek proisct, The applicant also submitted a 3,page letter.discussing the proposed .clubbouse expansion (SP -95- 72) and its relationship to the previous approvals, as well as the proposed amenities complex. Specifically., the apolicant hal referred to the original master plan approval -(MP-8341 and CUB3-1O7 end .subseaUtent Modification of Conditions (MC -85-13) approved by the Cdtinty;Hearings Officer: Although it Is not totally Clear from the Hearings Officer's findings and decision and the appliCanrsburden of proof .Statements,.. the Condominium (townhome) development was 'proposed to include food and beverage service, a lobby area and meeting roornfacility. The pool facility at the amenities .complex will take the place of the pool facility which was anticipated to be paced elsewhere near the clubhbuse for the gOlf cOurie. No additional' peel facilities Willi:* allowed as part of this site plan review. Staff finds that the proposed amenities complex is consistent with the original land use approvals liSted above and that the applicant is allowed'to proceed as a vested right for the project. 2. The proposed use., an expansion to an existing resort facility that includes a golf course in an F-2 zone, would normally be considered an expansion to a nonconforming use, since destination resorts are not allowed in the Oregon Revised Statutes or the implementing Oregon Administrative Rules for forest zones, and they are not allowed under Chapter 18.40 (F-2 zone) of Title 18 of the SP -95-42 Page 6 Deschutes County Code. The expansion would normally require the applicant to go through a plan amendment process to address the rural communities rule of the Oregon Administrative Rules 660 Division 22 far unincorporated communities." However, given the in no. 1 above, the proposed . . x "is allowed under an approved An future e he Cou 3. The -applicant has correctly stated on- page 7 of the original burden of proof statement that the amenities buildings Will not be visible from the Deschutes River and thus meets the -criteria for non-visible structures as outlined in Section 18.84.050 of Title 18 for the river. The applicant has also correctly stated on page.7 that the complex will be visible from Century Drive, which is also subject to landscape management review. The applicant has listed and addressed Section 1884.080 of Title 18, Design Review Standards for the LM zone; for the portion of the project: visible from Century Drive. The applicant's findings are incorporated by reference herein. Staff notes that the applicant has specifically stated what exterior materials and colors will be used on the complex and that the -project will have earth tone colors which reduce contrast with the natural landscape: The applicant will be required to follow this proposed exterior appearance. The amenities complex will remain not visible from the river based on the distance to the river and the existing vegetative cover and topography between the river and the COMplex. 4. The applicant has correctly indicated on page 9 of the original burden of proof statement that the Widgi Greek development Is allowed to be expanded as proposed based on the original master plan approval ,,and is thus not subject to thelirriitations of Section 18.88.040 (B) of the Wildlife Area combining zone. The applicants findings are incorporated by reference herein. 5. The applicant has listed and addressed the number of vehicular parking spaces on .page 10 Of the- original burden of proof Statement. The building has been reduced in size from the one proposed -In SP -96-74. The Site plan indicates a total of 27 parking spaces. The applicants original assessment of the number of spaces that should :be required for the amenities complex indicates that most people would be walking to the complex: Staff concurs with this analysis. The 27 spaces proposed will be made a condition of approval. Section 18.116.030 (G)(4) of Title 18 limits the number of compact stalls to 30 percent of the total_required stalls. With 27 parking spaces proposed on-site, the maximum number of compact stalls would be 8; the site plan submitted indicates there are 5 compact stalls, meeting the maximum number. 6. The applicant has listed and addressed the Development and Maintenance standards for off-street parking areas on pages 10 and 11 of the origin: I to -n of proof statement. The drainage Of the parking areas must include drywalls in conjunction with the catch basins. The applicant has pr..osed b. ..but the site pia, 41.ti 'Cate where the locations of these are. Plumbing permits will be the County 'Eliding DivisRCri for installation of the drainage n required fron mechanisms: SP -98-42 Page 7 Staff makes the following additional findings: 18.116.030' (E)(4) Use of Parking Facilities. Required parking space shall be available for the parking of operable passenger automobiles of residents, customers, patrons and employees only and shallnot be used for the storage of vehicles or materials or for the parking of truclts usenn conducting the 5usi or used in conducting Tlirousiness or use. FINDING: The parking spaces must be for customers, patrons and employees only and cannot be used for storage of trucks or materials for the complex. 18.116.030 (F)(5, 6 and 9) 5. Except for parking to serve residential uses, parking and loading areas adjacent to residential uses shall be designed to minimize disturbance of residents. 6. Aecess aisles shall be of sufficient width for all vehicular turning and maneuvering. 9. Parking spaces along the outer boundaries of parking area shall be contained by a curb or bumper rail placed to prevent a motor vehicle from extending over an adjacent property line or a street right of way. FINDING: The proposed parking lot for the amenities complex will not disturb residents who may live in the townhomeS or who stay in them temporarily as guests. The parking will be used by residents and guests, similar to what occurs at the adjacent Inn of the 7th Mountain development. There should be no disturbance of :residents. Lot owners who Ourchase the tom -homes in this location will be aware of the amenities complex. The access drives proposed for the amenities complex are approximately 30 feet wide, which allows for two-way .traffic on the paved areas. The parking spaces Will all have either curb or Concrete boundaries. The proposed parking spaces. meet the minimum design standards OfsubSettion G. 7. The applicant has listed and addressed part of the biCycle parking standards on page 11 of the Original burden of proof statement. Staff notes that the criterion under section 18.116.031 (A)(1) adds one additional portion of a sentence which is not Included in the applicant's findings. This portion of the sentence reads as follows: "or, where more than 10 bicycle parking spaces are required, at least 50 percent of the bicycle parking spaces shall be sheltered." The applicant has proposed no specific number of bicycle parking spaces for the complex. The complex will require six bicycle parking spaces, which can be located near the *building. The bicycle parking spaces must meet the standards for ditnensions, surface and security as listed under Section 18.116.031 (8)(4, 5 and 6) of Title 18. SP -98-42 Page 8 8. The applicant has listed and addressed the Site Plan approval criteria on pages 11-14 of the original burden of proof statement. Staff concurs with the applicant's findings and incorporates them by reference herein. Staff re-emphasizes that all lighting for the buildings and parking lot must be shielded and must meet the standards under Chapter 15.10 of the County Code. 9. The applicant has listed and addressed the landscaping standards of Section 18.124.070 on pages 10-12 of the original burden of proof statement. Staff finds that the proposed landscape plan is in conformance with this section. The applicant will be required to maintain all landscaping and have it kept alive. CONCLUSIONS: Staff finds that, based on the record, the application can satisfy all relevant criteria if the following conditions are met. DECISION: APPROVAL CONDITIONS OF APPROVAL: 1. Approval is based upon the submitted plan. Any substantial changes to the plan shall require a new application. 2. All landscaping shall be completed within 6 months of the completion of the complex building. 3 Twenty-seven (27) parking spaces shall be installed as shown on the site plan for the amenities complex. The parking spaces and all driveways shall be paved prior to occupancy of the building. 4. A minimum of six bicyCle parking spaces shall be installed on the site. The bicycle parking spades shall be installed prior to occupancy of the amenities building. The bicycle :parlOng spaces shall meet the standards for bicycle parking as established under Section 18.116.031 (8) of Title 18. 5. All _parkin a areas and driveways for the amenities complex shall be paved surtaces .designed for all-weather use, and shall be completed prior to occupancy of the amenities building. The paved areas shall have catch basins and drywells, and any associated plumbing pep -nits for these. 6. The applicant shall meet all requirements of the Bend Fire Department for tire protection for the project. These requirements are listed in the transmittal response from the Fire Department in this Findings and Decision. 7. The applicant shall meet all requirements of the Deschutes County Building Division for the required permits for the amenities complex. 8. The applicant shall obtain the required permits from the County Environmental Health Division for any food service and pool facilities on the site prior to occupancy of the amenities building. S P-98-42 Page 9 9. •The applicant shall meet all requirements of the City of Bend for the sewer service connection for the amenities complex, including a test of the required fire flows, conferring with the City on draining of the swimming pool and verifying the capacity of the sewer pump station. The applicant shall submit written verification from the City of Bend for meeting all City requirements for the amenities complex. 10. Any trash enclosure for the amenities complex shall be buffered from adjacent properties by a solid fence or wall in en earth tone color the same as the amenities building. 11. All exterior lighting on the site, including security lighting, shall be shielded only and not project off-site. 12. The exterior colors of the complex building shall be as prescribed in the burden of proof statement, which are earth tone brown and green colors. 13. The applicant shall sign and enter into a Conditions of Approval Agreement with Deschutes County to ensure that all elements of the site plan shall be installed and maintained as approved. This agreement shall be approved and recorded with the Deschutes County Clerk prior to issuance of the building permit for any new structure. DURATION OF APPROVAL The applicant shall submit an application for a building permit for the amenities complex within twp (2) years from the date this decision becomes final, or extend the Site Plan approval according to Title 22 of the County Code, or this approval shall be void. This decision becomes final ten (10) days from the date mailed, unless appealed by a party of interest. DESCHUTES COUNTY PLANNING DIVISION Written by: kstad, Associate Planner Reviewed by: Kevin M. Harrison, Principal Planner PEBislr S P-98-42 Page 10 DESCHUTES COUNTY PLANNLNG DIVISION 117 NW Lafayette Avenue, Bend, OR 97701 (541) 388-6575 FAX 385-1764 CERTIFICATE OF NOTICE BY MAIL FILE NUMBER: SP -98-42 DOCUMENT MAILED: (1) Findings and Decision, and (2) Notice of Decision I certify that on LOOKUP AREA (circle one): 100 250 " 715 day of August, 1998, the attached decision and notice, dated August 28, 1998, was mailed by first class mail, postage prepaid, to the perso address(es) set forth on the attached list. DATED this ra-F By: day of August, 1998. COMMUNITY DEVELOPMENT DEPARTMENT Widgi Creek Golf Club Inc. 18707 Century Drive Bend, OiregOn 97702 Yamaioe International 222 SW Colunibia, Suite 1200 Portland, Oregon 97201 Watermaster — Districi 11 (1) 1340 NW Wall Street, Suite #100 Bend, OR 97701-1939 Bend Fire Department 5 NW Minnesota Avenue Bend, OR 97701 113 lookups within 500 feet of the property that is the subject of the Notice of Decision (2) County Road Department County Assessor's Office — John Wurst Deschutes County Planning Commission City of Bend Post Office Box 431 Bend, OR 97708 Quality Services Performed with Pride i f 3 _2 • FILE NUMBER: - APPLICANT/ PROPERTY OWNER: REQUEST: AGENT: Community Development Depar infitleirjaMMiarAZ=SMOteM '4I4.1=7K9.110N. ,4` " ent ut Administration Bldg., 1130 N.W. Harriman, Bend, Oregon 97701 (503) 388-6575 Planning Division Building Safety Division Environmental Health Division FINDINGS AND DECISION AD -95-16 Dale Bernards Yamazoe International Inc. 222 SW Columbia f1200 Portland, Oregon 97201 An application for a Declaratory Ruling on the Seventh Mountain Golf Village/Widgi Creek development adjacent to the Inn of the Seventh Mountain southwest of Bend in an F-2, Forest Use zone. Robert S. Lovlien Post Office Box 1151 Bend, Oregon 97709 STAFF cONTACT: Paul E. Blikstad, Associate Planne APPLICABLE CRITERIA: A. Chapter 18.40 of Title 18 of the Deschutes County Code establishes standards for the F-2 zone. B. The Deschutes County Comprehensive Plan establishes an overall planning and development framework for the County. C. Title 22 of the Deschutes County Code establishes procedures for all land use applications in the County. Section 22.36.020 of Title 22 establishes a provision for Initiation of Use. Chapter 22.40 of Title 22 establishes the provision for a Declaratory Ruling. FINDINGS OF FACT: 1. IDCATION: The Widgi Creek/Seventh Mountain Golf Village property is located adjacent to Century Drive and the AD -95-16 Page 1 Quality Services Performed with Pride Inn of the 7th Mountain southwest of Bend. It is located in sections 14, 15, 22 and 23 of Township 18 South, Range 11 East. The tax lot description for this property is 18-11, 2000. 2. ZONING: The subject property is zoned F-2, Forest Use, with Landscape Management (LM) and (WA) Wildlife Area combining zones on the property. 3. The applicant is rectuesting a Declaratory Ruling to establish that the land use permit to develop the sub-ject property has been initiated. This would allow the condominium portion of the master plan that was approved for Seventh Mountain Golf Village to be. constructed, 4. The following is a list of the land use applications that have been submitted for the Widgi Creek/Seventh Mountain Golf Village property: * Z-83-7, a Zone Change for a 33 -acre portion of the overall development proposal of 230 acres, from SMR, Surface Mining Reserve, to F-2, Forest Use. The Findings and Decision of the County Hearings Officer was rendered in February of 1984. The Ordinance adopting the zone change (84-016) was signed by the Board of County Commissioners on May 2, 1994. MP -83-1. CU -83-107, a Conditional. Use Permit to allow the expansion df the Inn of the Seventh Mountain destination resort, and a Master Plan for phased development of the expansion. This approval granted a total of 210 residential units, with single-family residential lots not to exceed 95 lots and condominium units not to exceed 120 units. The first phase, which included 33 residential lots and supporting facilities, a maximum. of 50 condominiums and nine holes of the golf course was to be completed by the end of 1985. The remaining phase of the development was to be completed by the end 'of 1988. The Findings and Decision of the Hearings Officer on these applications was rendered on March 8, 1984. SP -84-23, a Site Plan for the golf course. The approval required that the golf course be completed by the end of 1988. Staff was unable to locate a. copy of the findings and decision. MC -85-13, a Modification of Conditions to amend the approval for. CU -83-107 and MP -83-1, allowing a change in the number of single-family residential lots from 95 to 107 lots, and having the total number of residential and condominium units not to AD -95-16 Page 2. exceed 210 units and adding a third phase for the development. The first phase of the development, which includes the golf course,- 33 home sites and the clubhouse, must be completed by the end of 1986. The second phase of the development would include 33 home sites, tennis and pool facilities, i' 30 condominium units, to be completed by the end of 1987, and a food and beverage and lobby facility to be completed by 1990. The third phase must be completed by the end of 1988 and an additional 30 condominium units must be constructed. By the end of 1990, 40 condominium units must be completed. The clubhouse will be allowed to be 5,000 square feet with a limited restaurant and lounge area. The 'Findings and Decision of the Hearings Officer was rendered on this application on December 18, 1985. Staff notes that this decision is not totally clear on the timing of the development and could have been more clear. TP -86-667, a Tentative Plat for 47 lots in the expansion. The Findings and Decision on this application was rendered on March 5, 1986. This approval expired and was never completed. MC -87-2, a Modification of Conditions to extend the timeframe for the completion of the expansion to the Inn of the 7th Mountain. The decision approved changes to allow the first phase, which includes the golf course and 46 homesites to be completed by September 1, 1998. f The second phase, which includes 33 homesites, tennis and pool facilities, 30 condominium units and the food and beverage and lobby facility will be completed by the end of September, 1989. The third phase must be completed by September 1990 with an additional 32 condominium units completed by September 1990. By the end of 1991, the balance of the project must be completed. The Findings and Decision of the Hearings Officer was rendered on June 22, 1987 on this application. * MC -88-1, a Modification of Conditions to allow changes to the previous approvals. The applAgaa moved a,rondoininium area, the recreation amenities, shortened the length of streets by 1,100 feet, connect with the City of Bend sewer system and change the phasing of the development to: phase 1 would include the golf course and 41 residential lots to be completed by December 31, 1988; phase 2 would include 32 additional lots, recreation amenities including the clubhouse, to be completed by September 30, 1989; phase 3, the remaining 34 lots would be completed by the end of 1989. The applicant received approval of the above, except that 20 residential lots were required to be AD -95-16 Page 3 shifted from phase 3 to phase 4 and 30 condominium units must be completed during phase 3. The project must be completed by December 31, 1991. Staff was unable to find a copy of the findings and decision on this application. MC -88-2, a Modification of the original golf course site plan. The applicant was required to complete the golf course by December 31, 1988. The club- house and parking areas must have an additional site plan review, and the crossing between holes 1 and 2 must be designed to provide safe crossing and be approved by the County Public Works Department. Staff was unable to find a copy of the findings and decision on this application. E-88-9, an Extension to allow 6 additional months for the completion of phase one of the expansion, which included the golf course and 46 homesites. This approval was rendered on August 26, 1988 and extended the approval to March 1, 1989. E-88-14, an Extension to allow completion of the golf course to June 30, 1989. This approval was rendered on December 30, 1988. E-89-6, an Extension of SP -84-23 and MC -88-2 for clearing of the fairways and installation of irrigation pipe for all of the fairways to December 31, 1989. This approval was rendered in July of 1989. * TP -89-702, a Tentative Plat for 52 lots within the expansion. The findings and decision on this application was rendered on August 1, 1989. This approval was not completed. * 7,C-89-22, a Modification of Conditions to allow completion of the clearing, grading, installation of pipe and seeding or sodding of the fairways by December 31, 1990. The golf course must be open for play by July of 1991. This approval was granted on January 9, 1990. * MC -90-14, a Modification of Conditions to allow the platting of all 107 lots within the expansion prior to construction of development of the condominium units. The application was approved by the Hearings Officer on July 20, 1990. * MC -?0-21 and TP -90-75, a Modification to allow individual septic systems if sewer service from the City of Bend is not available and a Tentative Plat for all 107 single-family lots within the expansion area.. The Findings and Decision on these AD -95-16 Page 4 applications was rendered on August 1, 1990. The final plat for Seventh Mountain Golf Village was recorded on December 20, 1990. PA -90-8, a Plan Amendment to allow the extension of the City of Bend sewer system to serve the Inn and the expansion to the Inn. The approval for the extension of the sewer service (Ordinance No. 90-041) was signed by the Board of County Commissioners on October 24, 1990. MC -90-24, a Modification of Conditions to allow the road crossing at the golf course between holes 1 and 2 to be an at -grade crossing rather than an undercrossing as originally proposed. The approval for this application was rendered on December 3, 1990. SP -91-21, a Site Plan application for the restaurant, golf pro shop, cart storage and locker/ changing room building, and a swimming pool and tennis courts for the expansion area. The Findings and Decision on this application was rendered on March 11, 1991. SP -94-45, a Site Plan for an office expansion to the restaurant building at the Widgi Creek golf course. The Findings and Decision on this application was rendered on May 25, 1994. AD -94-28, an Administrative Determination on the status of the Seventh Mountain Golf Village/Widgi Creek development. The Findings and Decision on this application was rendered on December 5, 1994. Staff notes that a Variance (V-91-12) and Sign Permits (S-91-36 and S-91-37) were approved for the "Seventh Mountain Golf Village" entrance signs, which have now been replaced by much smaller "Widgi Creek" signs. CONCLUSIONS OF LAW: The decision of the Hearings Officer on the original approvals listed above has the following findings: Page 9 of the Findings and Decision has the following: "(8) Proposed ownership pattern: The property is currently owned by the U.S. Forest Service. However, the U.S. Forest Service and Moana Corporation have agreed to a land exchange. If the property is developed, the individual recreational AD -95-16 Page 5 homesites will be sold by fee simple interests. The condominiums will be developed in accordance with Oregon Condominium Act, and the underlying title to the property will vest in the condominium association. The golf course, lodge, tennis courts and swimming pool will be retained by the developer as conditions and restrictions of the proposed development." "(9) Operation and maintenance proposal (i.e., homeowners' association, condominium, etc.): The developer will form a homeowners' association with the responsibility for the maintenance of the interior roads and common area of the development. The developer will be res•onsible for the maintenance and operation of 4/1 " e o«ae. enn s.courtp, sw no pool and 18 hole golf course, Each condominium will have a separate condominium association with responsibility for the maintenance of the common areas immediately adjacent to the condominiums as well as for the long term maintenance responsibilities of each condominium unit." Staff originally found in the findings and decision for AD -94-28 that the approval for the completion of the condominiums has expired. These units were to have been completed in conjunction with the platting of the single-family lots within the project and were never started, nor was any site plan application submitted or approved for these units. Since the findings and decision on AD -94-28 was rendered, the County has amended Title 22 of the County Code, Procedures, to include the following: 22.36.020, Initiation of Use A. For the purposes of this Chapter,, development action undertaken under a land use approval described in Section 22.36.010, has been "initiated" if it is determined that: 1. The proposed use has lawfully occurred; 2. Substantial construction toward completion of the land use approval has taken place; or 3. Where construction is not required by the approval, the conditions of a permit or approval have been substantially exercised and any failure to fully comply with the -conditions is not the fault of the applicant. B. For the purposes of this section, "substantial construction" has occurred when the holder of a land use approval has physically altered the land or structure or changed the use thereof and such AD -95-16 Page 6 alteration -or change is directed toward the completion and is sufficient in terms of time, labor or money spent to demonstrate a good faith effort to co ,tete the development. Staff findings: With respect to the development of the expansion to the Inn of the Seventh Mountain, there has been substantial construction and improvements to the site. The private roads within the development have been constructed; utilities installed, including connections to the City of Bend sewer and water systems; the 107 -lot subdivision referred to as Seventh Mountain Golf Village has been platted, with lots sold and dwellings constructed upon many of the lots; the 18 -hole golf course and driving range has been constructed and now in use for five years; the golf pro shop, rest- aurant, and golf cart storage buildings have all been constructed and are in use on the golf course. Some recent landscape upgrading has also occurred on the site. The applicant estimates that the total amount of money spent on the project to date is approximately $7,000,000 (seven million dollars). All of the uses on the site have received approval from the County Community Development Department, as well as meeting the requirements of the City of Bend for sewer and water, and from the State Highway Division for access to Century Drive (Cascade Lakes Highway). The approvals from the County include Tentative Plat and Site Plan approvals, and also includes the original master plan approval for the expansion to the Inn. The Inn expansion has lawfully occurred. While the original land use applications contemplated completion of the condominium units around the same time as the platting of the subdivision lots, the project has experienced financial setbacks, with different entities having ownership interests in the project. The fin- ancial setbacks, combined with a slowing condominium market, produced a situation where the condominiums could not be constructed during the timeframe envisioned by the original applicant. The whole project was delayed for several years, having original approval in 1983, with little or no actual site work on the property occurring until 1989. Staff was only aware peripherally of changes to the ownership of the site and project, but it was obvious from lack of progress that financing was problematic for the project. Staff finds that the failure to -fully comply with the conditions is not the fault of the applicant, but was due to circumstances beyond the control of the applicant. The approval rendered for the project limited the overall residential dwelling units to 210. With the igy ;Lots platted for the subdty Sion, 103 units were ,left AD -95-16 Page 7' for the condominiums. Staff finds that the 103 units is the maximum that can be allowed for the condominium project within the site. Staff notes also that the Planning Division has received input from the Assoc- iation of Unit Owners within the original Inn of the Seventh Mountain expressing support for the condominium development at Widgi Creek/Seventh Mountain Golf Village. Staff finds that the expansion to the Inn of the Seventh Mountain has been "initiated" and that the condominium project was a part of the overall project. Site Plan approval for the condominium development will be required from the Planning Division prior to any construction. 22.36.025 (B) B. Notwithstanding any condition to the contrary in an individual approval, a determination may be. made for any land use approval described in Section 22.36.010(B) whether or not issued prior to the effective date of Ordinance 95-018, under Section 22.36..010(D)(1) as to whether a use was "initiated" within the duration of the land use approval. If it is determined that the use was "initiated■ - during the life of the permit, the permit will be considered to be, a valid subsisting permit and any land use described in the permit will be deemed to_ be authorized under the County's ordinances, subject to any appli .• e revocation provisions. Staff findings: The initiation of use findings are listed in• the foregoing findings under Section 22.36.020. Based upon these findings, the condominium project can proceed with Site Plan approval from the County Planning Division, as well as approval from the City of Bend for connections to the City sewer -and water: systems. The site plan application will require comments from all affected agencies, including the City of Bend and State Highway Division. The County will not be pursuing any revocation proceedings for the condominium approval. CONCLUSIONS: The Seventh Mountain Golf Village/Widgi Creek development has been determined to have been "initiated", and the condominium development on the site can proceed subject to the following two conditions. DECISION: APPROVAL AD -95-16 Page 8 ...A.0u.i_TiONS OF APPROVAL: 1. A total of no more than 103 condominium units can be constructed in the area approved for condominiums within the development. 2. Site Plan Approval from the Planning Division shall be required prior to any development of the condominiums. This decision becomes final ten (10) days from the date mailed, unless appealed by a party of interest. DESCHUTES COUNTY PLANNING DIVISION Written by: Paul B1ikstafL, Associate Planner Reviewed by:'Kevin M. ffrrison, Principal Planner PEB/mjz AD -95-16 Page 9 - 1615 5S -4715a CONDITIONS OF APPROVAL AGREEMENT THIS AGREEMENT, made and entered into by and between Deschutes County, a political subdivision of the State of Oregon, (County), and Yamazoe International Inc., owner of certain real property described in Exhibit A attached hereto and by this reference incorporated herein. WITNESSETH: WHEREAS County has granted approval of a land use permit SP -98-42 (Permit) for the Real Property upon the condition that Developer construct and maintain certain requirements as specified therein; now therefore, IT 'IS HEREBY AGREED, by and between the parties, for and in consideration of the mutual covenants and agreements herein, as a condition precedent to the granting of final approval or occupancy, as follows: Scope of Agreement. This agreement affects the Real Property described above. This Agreement shall cover those improvements and requirements described in the section of this Agreement entitled "Conditions of Final Approval." Nothing in this Agreement shall require Developer to construct any improvements under the Permit, but if Developer undertakes the construction of buildings or structures, the division of real property or otherwise exercises the Permit, Developer shall be required to complete and maintain all improvements, as defined herein, in accordance with applicable County Ordinances and the Permit. Definition of Improvement. As used herein, "improvement" means any private or public facility or service such as roadways, bike paths, accessways, pedestrian walkways, landscape areas, sewage collection and disposal systems, water systems, lighting systems, parking lots, cable utilities, circulation areas, outdoor storage areas, service and delivery areas, outdoor recreation areas, retaining walls, signs and graphics, cut -and -fill areas, buffering and screening measures, street furniture, drainage facilities, or other similar improvements as approved and required in the Permit. Definition of Permanent Maintenance. As used herein, "permanent meintenance" generally means maintenance of the structures, improvements, and landscaping that are the subject of this Agreement in a manner that will keep such structures, improvements, and landscaping in good repair or good condition and in a condition that is not a hazard to public safety. With respect to landscaping, Developer's obligations shall include, without limitation, continued irrigation of landscaping and, where applicable, pruning of landscaping to guarantee required sight distances and to otherwise protect against hazardous conditions. With respect to drainage facilities, Developer's obligations shall Conditions of Approval Agreement - Page 1 Date October 14, 1998 51? 1676 include, without limitation, periodic cleaning of drainage ponds, drywells, or other drainage facilities of obstructions or silt that would limit the performance or effectiveness of drainage facilities. With respect to improvements, such as pavement and sidewalks, Developer's obligations shall include, without limitation, maintenance of the impervious nature of impervious surfaces, maintenance of evenness of surfaces so that such surfaces are not hazardous to the operation of vehicles or use by pedestrians. Construction and Permanent Maintenance. If Developer is required under the Permit to construct improvements of any kind or to install landscaping or plantings and Developer elects to proceed with development under the permit, Developer agrees: (1) to undertake the construction and landscaping required under the land use permit, as more specifically set forth in the conditions set out herein and in the land use permit; and, (2) in the event that this Agreement and the Permit do not expire as set forth herein, to the permanent maintenance of required landscaping and improvements. Enforcement, This Agreement shall be enforceable against any person bound by this Agreement in possession of or having fee title to the property. If any .party bound by this Agreement defaults on the obligations set forth herein, the County shall be entitled to enforce this Agreement in equity. The prevailing party at trial or on appeal in any enforcement action shall be entitled to reasonable attorney fees and costs. This provision shall not limit County's rights to use other means provided by law, including but not limited to issuing a civil citation, to enforce the conditions of the Permit. Authority of Signatories. By their signatures, all signatories to this Agreement signing in a representative capacity certify that they are authorized to sign on behalf of and bind their respectiveprincipals. Expiration. This Agreement and the Permit shall expire on its expiration date or by the revocation of the Permit or by the explicit release by the County from this Agreement granted as part of an approval for a change of use of the Real Property. Additionally, this Agreement and the Permit shall automatically expire upon the foreclosure of any prior encumbrance upon the Real Property which results in the extinguishment of this Agreement. No Partnership. County is not, by virtue of this Agreement, a partner or joint venture of Developer in connection with activities carried on under this Agreement, and shall have no obligation with respect to Developer's debts or any other liabilities of each and every nature, and is not a guarantor of the Developer, the project, or the work to be performed. Limitations. Should this Agreement violate any constitutional or statutory provision, it shall be void. Persons Bound bv Agreement. The original of this Agreement shall be recorded with the Deschutes County Clerk and shall run with the land. It is the intent of the parties that the provisions of this Agreement shall be binding upon the parties, the parties' successors, heirs, executors, administrators, and assigns, or any other parties deriving any right, title or interest or use in or to the Real Property, including any person who holds such interests as security for the payment on any obligation, including the Mortgagee or other secured party in actual possession of the Real Property by foreclosure or otherwise or any person taking title from such security holder. Conditions of Approval Agreement - Page 2 Date October 14, 1998 517 1617 Conditions of Final Aooroval. The following are the required conditions of final approval for the Permit: 1. Approval is based upon the submitted plan. Any substantial changes to the plan shall require a new application. 2. All landscaping shall be completed within 6 months of the completion of the complex building. 3 Twenty-seven (27) parking spaces shall be installed as shown on the site plan for the amenities complex. The parking spaces and all driveways shall be paved prior to occupancy of the building. 4. A minimum of six bicycle parking spaces shall be installed on the site. The bicycle parking spaces shall be installed prior to occupancy of the amenities building. The bicycle parking spaces shall meet the standards for bicycle parking as established under Section 18.116.031 (B) of Title 18. 5 All parking areas and driveways for the amenities complex shall be paved surfaces designed for all-weather use, and shall be completed prior to occupancy of the amenities building. The paved areas shall have catch basins and drywells, and any associated plumbing permits for these. 6. The applicant shall meet all requirements of the Bend Fire Department for fire protection for the project. These requirements are listed in the transmittal response from the Fi're Department in this Findirigs and Decision. 7. The applicant shall meet all requirements of the Deschutes County Building Division for the required permits for the amenities complex. 8 The applicant shall obtain the required permits from the County Environmental Health Division for any food service and pool facilities on the site prior to occupancy of the amenities building. 9. The applicant shall meet all requirements of the City of Bend for the sewer service connection for the amenities complex, including a test of the required fire flows, conferring with the City on draining of the swimming pool and verifying the capacity of the sewer pump station. The applicant shall submit written verification from the City of Bend for meeting all City requirements for the amenities complex. 10. Any trash enclosure for the amenities complex shall be buffered from adjacent properties by a solid fence or wall in an earth tone color the same as the amenities building. 11. All exterior lighting on the site, including security lighting, shall be shielded only and not project off-site. 12. The exterior colors of the complex building shall be as prescribed in the burden of proof statement, which are earth tone brown and green colors. Conditions of Approval Agreement - Page 3 Date October 14, 1995 DATED thisj day of 9 517 1678 DESCHUTES COUNTY COMMUNITY DEVELOPMENT DEPARTMENT GEORGEEA , Director STATE OF OREGON, County of Deschutes: ss. Before me, a Notary Public personally appeared GEORGE J. READ, the above named Director of Deschutes County Community Development Department, Deschutes County, Oregon, and pcknowledgqd the foregoing instrument on behalf of Deschutes County, Oregon, day °(kM , 1991 OFFICIAL SEAL SUM L NOM ruemoneaoto 0016411910N NO. 1107897 0011111111111ON WWII OM 4, OM Notary Public for Oregon My Commission Expires: 1 DATED this day of , 1998. YAMAZOE INERNATIOAL INC. STATE OF OREGON COUNTY OF ) ss ) ate Bernards I certify that I know or have satisfactory evidence that Dale Bernards is the person who appeared before me, and said person acknowledged that he signed this instrument and t at he mas uth9rized to execute the instrument and acknowledged it as the cif- of Yamazoe International Inc., to be the free and voluntary act of such parties for the uses and purposes mentioned in this instrument. 7-7-7 0 OFFICIAL SEAL JANET MOSS NotarybIic for Oregon NOTARY PUOLIC-OREGON My cornmission expires: (2.4, COMMISSION NO, 314255 MY OOMMISSION EXPIRES MO. 14, 2002 .•••••••••••••••••••••...0.0 Whdfl.i.1.4.,.• Conditions of Approval Agreement - Page 4 Date October 14, 1998 hackman, Williams & associates, Inc. Surveyors • Engineers • F5allnWs — 1679 Exh bl'+- A- ELKAI AMENITIES BUILDING LEGAL DESCRIPTION OF PROPERTY "1-) co -19 A parcel of land located in the Southeast One -Quarter of Section 22, Township 18 South, Range 11 East, Willamette Meridian, Deschutes County, Oregon more particularly described as follows: Beginning at a 2 1/2" brass cap marking the Southeast 1/16th corner of said Section 22; thence North 61°55'30" East 172.32 feet; thence North 45°20'00" West 90.00 feet; thence North 77°40'00" West 325.00 feet; thence North 28°27'00" East 106.00 feet; thence North 00°22'27" East 154.00 feet; thence North 22°00'00" East 316.14 feet; thence South 65°02'13" East 153.27 feet; thence North 24°57'56" East 224.90 feet; thence right 90.61 feet along the arc of a 330.00 foot radius curve (long chord bears North 32°49'52" East 90.32 feet); thence South 43°07'47" East 88.84 feet; thence South 37°56'07" East 157.69 feet; thence right 159.41 feet along the arc of a 180.00 foot radius curve (long chord bears South 12°33'51" East 154.25 feet); thence South 12°48'26" West 84.80 feet; thence South 77°11'34" East 40.00 feet; thence South 82°25'04" East 127.50 feet; thence South 16°00'00" West 463.53 feet; thence South 00°00'37" West 360.23 feet; thence South 80°45'00" West 122.00 feet; thence North 16°00'00" West 206.00 feet; thence South 45°30'00" West 253.26 feet; thence North 41°19'21" West 116.20 feet; thence North 00°21'51" East 196.60 feet to the point of beginning and the terminus of this description, containing 12.68 acres, more or less. STATE OF OREGON ) SS. COUNTY OF DESCHUTES ) 1, MARY SUE PENHOLLOW, COUNTY CLERK AND RECORDER OF CONVEYANCES, IN AND FOR SAID COUNTY, DO HEREBY CERTIFY THAT INC WITHIN INSTRUMENT WAS RECORDED THIS DAY: BY. 98 OCT 21 Pf1 3 26 T C.LL PUTT NO, 9S '"471.53 FE DESCHUTES COUNTY OFFICIAL RECORDS Historical Mill A Building • 805 SW industrial Way, Suite 10 • Bend, Oregon 97702.1093 • FAX (541) 388-5476 DESCHilIT'c • , • 9E-12111 CONDITIONS OF APPROVAL AG 4 2 9 THIS AGREEMENT-, made and entered into by and between Deschutes: County, 'a :political :subdivision of the ,State of Oregon, • (County), and YAMAZOE INTERNATIOML, INC., An Oregon Corooration, (Developer), ,Owner of :certain real property :desCribed in .Exhibit "A", attached hereto and by this reference incorporated herein, as set forth in that certain Statutory :Bargain and Sale Deed, dated November 21, 1994,.as recorded in Volute 362, Page .0439, of Deschutes County Book of Records (Real Property). W I, T.N E. SSETH; I,11-1EREAS County has granted approval of a land use permit (Permit) for the Real :Property upon the condition :tha Developer construct and maintain certain requirements ,as specified therefore, IT -IS HEREBY AGREED by and between the- parties, for and in consideration of the Mutual covenants and agreements herein as a condition precedent to the granting of final aPprOval or occupancy, as follows: Sco'ce of Aareement This Agreement shall cover those improvements and requirements described in the section herein entitled "Conditions of, Final Approval." Nothing in this Agreement, shall. require Developer to construct any improvements under the land use permit, .but if Developer Hundertakesthei.:construction:ofTbuildings, structures, or :the division of Real Property under the.permit, -.Developer shall be -required. to::cOmtilete and Maintain all,. improvements, defined, ,hare in, in accordance with anolicabl e County Ordinances and the Permit. Definit ion -1 of itprovement . As used - herein; " imprn ovpMet" . _ means -a.ny.::--priVate-:_or. public facility-. or •seryi.Oe 'such as roadways., bike Paths, accessways, 'pedestrian walkwa.ys, landscape areas, sewage collection and disposal systems, water systems, lighting systems, parking lots, cable Conditions of Approval Agreement - October 17, 1996 FEB - SP -96-74 429 111Z utilities, circulation areas, outdoor storage areas, service and delivery areas, outdoor- recreation areas, retaining walls, signs and grauhics, cut -and -fill areas, buffering and screening measures, street furniture, drainage facilities, or other similar improvements as approved and required in the land use uermit. Definition of ,'PerManent Maintenance. As used herein, "permanent maintenance" generally means rmaintenanceofthe -Structures, improvements, and *landscaping:that*:arethe Subject of this Agreement in a mannerthat will keep such structures, improvements, and landscaping in good rePairor good .condition and in a condition that is not a hazard to public safety. With resoect to landscaping, Developer's obligations shall include, without limitation, continued irrigation of landscaping and, where applicable, pruning of landscaping to guaranteerequired sight distances and -to otherwise protect against hazardous conditiOns. With reSbect to drainage facilitieS, Developer's obligations shall include, without limitation, periodic cleaning of drainage ponds, drywells, or other drainage facilities of obstructions or silt that would limit the performance or effectiveness of drainage facilities. With respect to improvements, such as pavement and sidewalks, Developer's obligations shall include, without limitation, maintenance of the impervious nature of impervious surfaces, maintenance of evenness of surfaces so that...such surfaces are not hazardousto the operation of vehicles or use by pedestrians. Construction and Permanent Maintenance. If Developer is required under the land use permit to construct improvements of. any kind or to install landscaping or plantings and Develbper elects to proceed with development under the permit, Developer agrees: (1) to undertake the construction and landscaping required under the lend use permit, as more specifically set forth in the condition S Set out herein and in the land use permit; and, (2) in the event that -:this Agreement and the land use permit do not expire as set forth herein, to the permanent maintenance of required landscaping and improvements. Enforcement. This Agreement shall be enforceable against any person bound by tbis' Agreement in possession of or having fee title :to the property. If any party bound by this Agreernent defaults on the obligations set- lOrth:..herdifi;::j7:Ith'.COunty shall be entitIed*.:to enforce this Agreement in eqiilty The Prevailing party at trial or on appeal in any enforcement action shall be entitled to reasonable attarnev fees and cost.s. This provision shall not Unlit County's rights. to se other means provided by law, including but not limited to issuing a civil citation, to enforce the .Ponditipna of the land use permit. Conditions of Approval Agreement - 2 October 17, 1996 PEE - SP -96-7 4 2 9 1113 Authority of Signatories. By their signatures, all signatories to thi e Agreement signing in a representative capacity certify that they are authorized to sign on behalf of and bind their restective principals. Expiration. This Agreement and the above -referenced land use permit shall expire upon expiration of the land use permit or by the revocation of the land use permit cr by the explicit release by the County from this Agreement granted as part of an approval for a change of use of the Real Property. Additionally, this Agreement and the above -referenced land use permit shall automatically expire upon the foreclosure of any prior encumbrance upon the Real. Property which results in the extinguishment of this Conditions of Approval Agreement. No Partnership. County is not, by virtue of this Agreement, a :partner pr joint venturer of Developer in connection with activities carried on under this Agreement, and shall have no obligation with respect to Developer's debts or any other liabilities of each and every nature; and is not a. guarantor of DeVeloter, the project, or the work to be perfOrMed. Lititations. Should this Agreement violate any constitutional or statutory provision, it shall be void. Persons Bound by Agreement. The priginalr.of this Agreement •riliall1;4*:i!ei*ad-i4ith the Deschutes County Clerk and -shall r.inwith the land. It is the intent of the 'parties that the provisions of tbisf_Agreement Shallp?-ndrrig-:141)0#,--:the 40arti;e.S...tbeirSuppeSiOrsi.:,heirS4 executors, adrninistrators, -and asslgns, or any other party deriving any right, title or iriterest �ruse in or to the Real roperty, u ing_.any 1)17bOn'.)whbh.old8SuclI,anterests. as security for the Dayment on any obligation.InCluding the Mortgagee or other secured party in actual possession of the Real Property by forealosurepr otherwise -or—any person taking title from such security holder. Conditions of Final ApProval. The following are the required cOnditions_of final approval for Sp -6-74.: 1. Approval is based upon the submitted plan, except for the necessary amendments to the landscape. Plan with respect to street trees along the landscape strip between the parking area and the street. At least three AdditibnaltreeS shall be addedltdthi strip. 2. All landscaping shall be completed within 6 -months of the completionof the complex building. Conditions of Approval Agreement - October 17, 1996 PEB - SP -96-74 429 1114 3. Thirty-one (31) parking spaces shall be installed as shown on the site plan for the amenities complex. The parking spaces and all driveways shall be paved prior to occupancy of the building. - 4. A minimum of seven bicycle parking spaces shall be installed on the site, with a minimum of four of these spaces covered. The bicycle parking spaces shall be installed prior to occupancy of the amenities building. The bicycle parking spaces shall meet the standards for bicycle parking as established under Section 18,116.03.1 (B) of Title 18. 5. All parking areas and driveways for the amenities complex shall be paved surfaces designed for all -Weather use, and shall be Completed prior to occupancy: :of the amenities building. The paved areas shall have catch basins and drywells, and any associated plumbing Permits for these. 6. The• applicant shall meet all requirements of the Bend Fire Department for fire protection for the project. These requirements are listed :in the transmittal response from the Fire Department in this Findings and Decision attached as Exhibit B to this decision. The applicant shall meet all requirementsof the City of Bend for the sewer service connection for- the amenities complex, including a test of the required fire flows, conferring with the City on draining -of the swimming pcol and: verifying the capacity of the sewer pl,imp station. The applicant ' shall sUbMit written verification from the City of Bend for Meeting all City requirements for the amenities complex 8., Any trash enclosure for the amenities complex 'shali :be buffered from adjacent properties by a: sold fence Or wall in an earth tone color the sate as the amenities building. 9. All exterior lighting on the site, nclUding seturi:ty. lighting, shall be shielded only and not project. off-site. 10. The exterior colors of thecomplex building shall be as prescribed in the burden of proof statement, which are earth tone brown and green -colors. Conditions of Approval Agreement - October 17, 1996 PEB - SP -96-74 4 DATED this 429 1115 ay of , 1996. DESCHUTES COUNTY COMMUNITY DEVELOPMENT DEPARTMENT GEORGE -.J: READ, Director STATE OF OREGON, County of Deschutes: ss. Before me, a Notary Public personally appeared GEORGE J. READ, the above named Director of Deschutes County Community Development :Department, Deschutes County, Oregon, and aOcnovledged theforegoinginStrumenton behalf of bFFtCiALEAL WRY 404HENDER: J---i---ett,k--) OoTARY Fli410--OFtEGC* COMNIISION,NO.'057829 Notary icor C)rgon. MY C0N4f+AISSION E:p1F3ESSEPT.;22,'200.6 1y :Co11v1usthorxD1re s : 67 - -(-)C1C; P4Tgl) tiis;5741& day Of..:00,/evor.... TIONAII, INC. By: et V'11-11 STATE OF ) :ss COUNTY OF VI &01M-ClAk I.Oe.i7ifY thatktpw or. baye. satisfactoryevidence that j.),1kp:Ebext, is the person whaappearedbefore me, and saiO.'person'e.dnOledged that he signed this instrument, on oath stated .that he was authorized to executethe instrument and acknowledged at as the t,k c(PAA-A- of YAMAZOE INTERNATIONAL, INC:,.an Oi'egon CorpOraioil, ta?' be the free a1:34 voluntary act of 0.11611 parties for 01.!- Iuses and Tk..11"POPes mentioned in this instrument. Given. under #1yhand and offidial. bea1 tiis 4i0)[-P_APALAtil" , 1996.. OEflMAMA .7-.810N5EFIC- klifie.(Ppsit'z*r.4i cos375o RSOC 18, 1998 /s1r-10/96 ta/Cfa-- %AeANikAk 'Jotary Public for Oki" My commission Expires Conditions of Approval Agreement - October 17, 1996 PEE - SP -96-74 0 day •of 9(7 kai Woods at Widgi Creek. ma new definition in townhomea, golf course living,. tdgi Creek f?ealty 18707 CenlAny Drive Bend, OR 97702 • 5411) 317-5000 (800) 3Z7-5102 FAX (541) 317-19$G AT3ra Stcm, Realtor nvistcrtqbericicablacom Cell (541) 420-3400 TLIC 171111108.11ER! rjhitr Natintiol Forest Jigs Pot .outside rour (icor. Life hare IstnwJe. Lbwrictimbered. You"11 Crijoy a whole new :e1,15.!: frathlill, lleo4.ose you'll hare rime Io do alt the things you've done without, 1 morning -walls akin -4 the rivct.lird,watating from tlic ba0c.rIzelc, oi colErn: for this, you will have to give up it lawn, and wv1;:ding the garden. Ai. Elkin Woods 141t1Sg*Ping. And we handle, everything else, leaning the gutters, thatching thc. Mother Nature rakes carc. trf the Upkeep, maintenance and repair Affordable ivnJJCJflLh vJflghist file,zn tratairte.N ire:v.47 Mt Bachelor 14.- P4' gt. l'14,%4[—wr Aff-;"ftr; P;410rflleming",( ; 01(01%06 is Widgi Creek's Aecoit and last — plum of Altntopment. There won't be another go7fretittrse. Or an other .kirtriatresirfentfal coustructfon. The entire siteIs thou-glithilly planned to przserve the latitude you've Cone to expect hair WiAtki Cmetik. Retattett towthkorms mane side, VIICZt1011 town -homes. the other. MI have fairway vie anti cw.ty aece.ss to a thoroughly inviting common arca. Thc pool will become a natural gathorirg ',Lice in dm summer, while the meeting facility is at your disposal ynr round. Elko Woodiariels two ownershit, ovtlons and .$ix,different floor plans, in imo,:bedrotun and threc,hedroorn configurations. An interior design package is also available fol. those who prefer a complete turnkey package, Financing terms can Ix ananged through Widgi Creek Realty_ tin like you've never lived before. At Bakal Woods. CaII 541 41 7-SOUD for ownership information. WGDIDS T TN G 1 c: 1.1 ,...,1i0i2„....0100"E„„°", 0.00 72 25,2i4. _2.1 2.2 ?1 i717 IS 14 32 31„ 1,1 3 ” El_YAIWaDE)S 42, 43 44 . AT WIDGI CREEK .. „?,4 ,.) " c fif ;0000• 6362 61' 00,10r. " 0.„,,,,000000,00,000,0„ 0000,,,00„ .10 "',.,00rn