Loading...
2016-154-Minutes for Meeting March 30,2016 Recorded 4/8/20161916-2-U16 DESCHUTES COUNTY OFFICIAL RECORDS Ld 2016.154 NANCY BLANKENSHIP, COUNTY CLERK V + COMMISSIONERS' JOURNAL 04/08/2016 02:38:57 PM IIIIIIIIIIIJIIIIllllIIIlll 11 III 2011-1i For Recording Stamp Only 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, MARCH 30, 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; Timm Schimke, Solid Waste Department; Chris Doty and George Kolb, Road Department; Danielle Fegley and Teri Lornz, Human Resources; Will Groves, Peter Gutowsky and Todd Cleveland, Community Development; and about twenty other citizens. No representatives of the media were in attendance. 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 Wednesday, March 30, 2016 Page 1 of 18 Before the Board was Consideration of Approval of the Consent Agenda. Commissioner DeBone clarified the minutes to show a possible grant request from the La Pine Community Action Team rather than the Community Action Group. DEBONE: Move approval of the Consent Agenda with this change. BANEY: Second. VOTE: DEBONE: Yes. BANEY: Yes. UNGER: Chair votes yes. Consent Aeenda Items 4. Board Signature of Document No. 2015-537, an Agreement with Telecare Mental Health Services of Oregon, Inc. for Residential Treatment Services 5. Board Signature of Order No. 2016-016, Authorizing the Sale of Surplus Property — Vehicles (Sheriffs Office) 6. Board Signature of a Letter Appointing Henry Kelley to the Board of Forest View Special Road District, through December 31, 2016 7. Board Signature of Letters Appointing Bill Kuhn (Senior Vice President, Commercial Loan Manager, Bank of the Cascades) and Steven Curley (Director of the Small Business Development Center, COCC) to the Deschutes County Fair Board, through March 31, 2019 8. Board Approval of a Discretionary Grant Event Application from the Family Resource Center for $1,500 9. Board Signature of Minutes: • Work Session of March 23, 2016 • Business Meeting of March 21, 2016 ACTION ITEMS 10. Before the Board was Consideration of the Reading and Board Signature of a Proclamation Declaring April 2016 as Child Abuse Prevention Month. Minutes of Board of Commissioners' Business Meeting Wednesday, March 30, 2016 Page 2 of 18 Shelly Smith, KIDS Center; and Tim Rusk, Mountain Star Relief Nursery, gave an overview of the proclamation and the reasons this annual recognition began. Ms. Smith acknowledged the community support given to this program and explained the services of KIDS Center. Ms. Rusk thanked the Board for its continuing support. The State has found the child abuse rate has gone down 2%, which is good, but nationally it is down about 25%, so they need to focus on this issue even more. Young children are particularly vulnerable, and prevention work with families is time intensive and challenging. There are some strong programs in place, and organizations doing great work to reduce violence in the family. Commissioner Baney appreciates the work being done regionally. It is very important to offer resources for this very difficult work. There is hope, and this community is fortunate to have these groups. Commissioner DeBone added that he encourages breaking the cycle of violence and abuse, and is grateful for efforts to bring this issue to light. Chair Unger is proud to say that Deschutes County supports the hard work of these groups. DEBONE: Move approval of signature of the Proclamation. BANEY: Second. VOTE: DEBONE: Yes. BANEY: Yes. UNGER: Chair votes yes. Commissioner DeBone read the Proclamation at this time. 11. Before the Board was Consideration of Chair Signature of Document No. 2016-201, a Notice of Intent to Award Contract Letter for the Knott Landfill Compost Relocation Project. Timm Schimke gave an overview of the item. The compost activity area needs to be relocated so work can commence on another landfill cell. They have selected a suitable location that needs some grading and other improvements. BANEY: Move Chair signature. DEBONE: Second. Minutes of Board of Commissioners' Business Meeting Wednesday, March 30, 2016 Page 3 of 18 VOTE: BANEY: Yes. DEBONE: Yes. UNGER: Chair votes yes. 12. Before the Board was Consideration of Chair Signature of Document No. 2016-077, a Notice of Intent to Award Contract Letter for the Paving of Baker Road, Arnold Market Road, Burgess Road and Finley Butte Road. George Kolb explained the process to this point. Commissioner DeBone asked if this is for an overlay. Mr. Kolb said it involves grinding down some of the roads and repaving as needed. DEBONE: Move Chair signature. BANEY: Second. VOTE: DEBONE: Yes. BANEY: Yes. UNGER: Chair votes yes. 13. Before the Board was Consideration of Chair Signature of Document No. 2016-207, the Federal Lands Access Program Match Agreement to Fund 50% of a Chip Seal Project on South Century Drive. Chris Doty stated that this involves a match agreement for federal funds to maintain roads that provide access to federal lands. They prefer to maintain rather than reconstruct, so the focus is always on preventative work. The grant will fund 50% of the cost of this project, with a separate piece for the Paulina Lake Road project. The work will occur next summer. These are federal roads that the County is tasked with maintaining because of local use. This process is reevaluated about every five years. These roads are part of the 900+ miles of roads that the County maintains. The Payment in Lieu of Taxes (PILT) program is also a source for doing this work as part of the overall road program. BANEY: Move Chair signature of Documents No, 2016-207 and No. 2016- 208. DEBONE: Second. Minutes of Board of Commissioners' Business Meeting Wednesday, March 30, 2016 Page 4 of 18 VOTE: BANEY: Yes. DEBONE: Yes. UNGER: Chair votes yes. 14. Before the Board was Consideration of Chair Signature of Document No. 2016-208, the Federal Lands Access Program Match Agreement to Fund 50% of a Chip Seal Project on Paulina Lake Road. See Items #13. 15. Before the Board was Consideration of Board Signature of Document No. 2016-210, an Intergovernmental Agreement with the City of Yakima regarding the Joint Procurement of Equipment, Materials and Supplies. Mr. Doty said that the County has been participating in a peer review process with agencies in Oregon and other states. They have developed relationships as a part of this work. This agreement came about as a result of the County's bid process for paint for striping. This agreement will enable the City and County of Yakima to benefit from lower costs on some items. It may work the other direction as well. This is already common between Oregon entities but this expands it into another state. DEBONE: Move Chair signature of Documents No. 2016-209 and No. 2016- 210. BANEY: Second. VOTE: DEBONE: Yes. BANEY: Yes. UNGER: Chair votes yes. 16. Before the Board was Consideration of Board Signature of Document No. 2016-209, an Intergovernmental Agreement with the Yakima County regarding the Joint Procurement of Equipment, Materials and Supplies. See Item #15. Minutes of Board of Commissioners' Business Meeting Wednesday, March 30, 2016 Page 5 of 18 17. Before the Board was Consideration of Chair Signature of Document No. 2016-2011, a Notice of Intent to Award Contract Letter for a Classification and Compensation Study for Non -represented and AFSCME Positions. Danielle Fegley and Teri Lorenz of Human Resources came before the Board. Ms. Fegley said that there has not been a study done since 2005, and there has been growth and work has evolved a lot since then. There are 185 classifications to evaluate. This will take six to eight months to complete. Chair Unger appreciates this process and feels it is money well spent. Commissioner DeBone and Baney agreed that 2005 was a long time ago, and there needs to be a strong basis as to how compensation is set. DEBONE: Move Board approval. BANEY: Second. VOTE: DEBONE: Yes. BANEY: Yes. UNGER: Chair votes yes. 18. Before the Board was a Public Hearing on an Appeal of the Hearings Officer's Decision regarding New and/or Non -conforming Structures (Dreifuss). Chair Unger opened the public hearing. Will Groves gave an overview of the issues to be heard and the procedures to be followed. In regard to ex parte contacts, bias or conflicts of interest, Chair Unger said he has only interacted with staff. Commissioner DeBone disclosed he has had a contract for many years with Oregon Water Wonderland to cut and remove grass from their area, which is relatively nearby. Commissioner Baney had nothing to disclose. Mr. Groves referred to a PowerPoint presentation (a copy of which is attached for reference). Mr. Groves stated that staff is uncertain how to remedy some of these issues without a text amendment, since much was not addressed at the time many of the improvements were established and it is unclear. Minutes of Board of Commissioners' Business Meeting Wednesday, March 30, 2016 Page 6 of 18 The argument from the applicant is that there would be no adverse impact on the area to allow these improvements to remain. Staff is seeking feedback on this, and the fact that Environmental Health is concerned about potential problems with septic systems in the area. Regarding the dock becoming a community dock, the likely neighbor who has a dock that is in disrepair has indicated that he is not interested in participating, and plans to instead repair his dock. The property is entirely mapped as a flood plain, and the elevation of the property shows that the dock and some of the decks fall beneath the base level of the flood plain. The Hearings Officer said that the flood plain is not an issue in this situation. Pavers or at -grade improvements can be added to properties, but anything raised, such as a deck, should not be allowed in riparian wildlife corridors. A change in this policy might have significant ramifications, although many of the other properties in this area have the same type of improvements. Mr. Groves gave options as to how the Board could proceed after the hearing. Commissioner DeBone recalled that there was a high water situation a few years ago. He wondered how this peninsula was affected at the time. Mr. Groves said there was significant inundation in the area, but does not think this specific property was greatly impacted. Chair Unger called upon the applicant at this time. A PowerPoint presentation was demonstrated by the applicant and his attorney, Liz Fancher. Mr. Dreifuss referred to an aerial view of the property. He then read his statement (a copy of which is attached for reference.) The property and permitted bathhouse was purchased by him and his wife in 2009. The new dock was built on the pilings of the old dock. They did not take any trees out to build the decks. They refer to the bunkhouse as an accessory building. The original bathhouse was expanded to about 15 x 12 feet, along with an attached deck. It is far from, and can barely be seen from the river. The boat dock should be allowed as it is on the same footprint of the original. It is all at ground level. They have a professional survey that the frontage is over 209 feet, following the shoreline. Minutes of Board of Commissioners' Business Meeting Wednesday, March 30, 2016 Page 7 of 18 The dock is 255 square feet and is anchored above the shoreline by 165 square feet at grade. Forty neighbors signed a petition to allow them to keep the deck as is; only a few did not sign. It is attractive and well-built, and in much better condition than most of the area's docks. He feels that the decks are to be considered landscaping and not a structure, per County Code. Homes in the area have similar decks raised about a foot above the ground. If they were at ground level and made of concrete, they would not be considered anything more than landscaping. Per Code, an accessory building of less than 500 square feet is exempt from permits and fees. Their building is less than 300 square feet, and even when combined with the other, is less than 500 square feet. It is 81 feet from the river's edge, which was allowed at the time it was built. (He showed photos of other properties where structures are very close or even over the river bank.) They feel the original building sets the standard, and the addition is further from the river. Almost all similar RV lots around the country allow accessory buildings to store lawn furniture, supplies and equipment. The Driefuss' live in their 45 - foot motor coach wen at the property. They purchased the property in 2009 and began improvements. Oregon Water Wonderland was required to install a sewer system for the lots along the river but has not done so. The current septic system was built in 1976 by permit. They have maintained the system since then, including in 2013 and 2015. It has been found to be in good condition. The drainfield is 150 feet away from the river in an area above the flood plain elevation. Mr. Driefuss then gave his concluding statement. He asked the Board to consider the quality of the work they did, and the emotional and financial impacts to his family. Liz Dickson explained, via a packet of information, the details of the case. She said that they offered the idea of a community dock, but only if the private dock cannot be allowed. The neighbor had discussed this with them, but it appears that everyone else has a dock and the neighbor thought not having one would devalue their property. Minutes of Board of Commissioners' Business Meeting Wednesday, March 30, 2016 Page 8 of 18 Mr. Driefuss may have built without permits, but is not trying to be difficult. He went to the State Parks Office and they referred to a County document and told him there were no permits required for what he wanted to do. In regard to the Hearings Officer's decision, some of it is in error. The applicable Code for rural recreational residential is referenced along with section 3.50 which did not talk about RV accessory units. She did not find anything detailed for RV use. She looked at residential standards only. She found only two accessory uses. The two items listed, a garage and home occupation, are the allowed uses. She misinterpreted what this says. This is the basis for saying the RV use is not allowed. PL -5 from 1971 was an early attempt to try to regulate land use. Many things were not included because they were not regulated or even thought of. The Hearings Officer's decision is wrong. The Hearings Officer inserted additional information after the record was closed, not allowing for discussion or rebuttal. She said the Uniform Building Code might have applied, but this was not in the record or able to be refuted. She looked at set measurements for buildings and said it might have required a permit. This reasoning is based on conjecture, not facts, and was not appropriate. Ms. Dickson referred to an aerial photo and where the original bathhouse was located. There was also the dock and driveway established before major land use was passed. The bunkhouse was felt to be appropriate when it was built. The 1979 approval document shows in writing that this was intended to be a septic system for an RV. They got a letter from the previous owner, James Cate, who built the improvements with Mr. Tucker. They write that they only needed a septic permit and nothing more. This is hard evidence, when all the Hearings Officer has come up is a guess. The use of the property has been continuous over the past forty years. There is an anomaly in the Code, called dwelling seasonal, regarding travel trailers, RVs or similar for occasional use only. The bathhouse is not a dwelling, but the RV use on the side is considered dwelling seasonal. The bathhouse is an accessory related to the RV use. Minutes of Board of Commissioners' Business Meeting Wednesday, March 30, 2016 Page 9 of 18 She disagrees with referring to the CDD letter of 1992 that denied permission to build a residence. The owner at the time wanted to upgrade the septic system to build a residence. This was denied. But this does not mean the system for the existing RV use was no longer allowed; it just could not be expanded to accommodate a full-time residence. The language of the application and denial relate to an expansion, not the use at the time. It was not intended for the current use to be cut off. This should be grandfathered along with the bathhouse. An accessory use requires a main use, and the dwelling seasonal is the main use. This is what the applicant intends to continue. There are numerous structures along the river already. This has been tightened up over time as attitudes change. The RV unit is dwelling seasonal and no one says it can't be parked there. The bathhouse is an addition to this already approved use. The bunkhouse is part of this RV use as well. The flood plain map shows that if a lot is even touched by a 100 -year flood designation, the County includes the entire lot in the designation. The elevation shows that much of the lot is above the flood plain. The only part in the flood plain is some of the decking and the dock. The idea is for things not to float away. They can comply with this. They will also drop the decks if necessary. This is trex decking which is not wood. Most of the decks in the area are this height or higher. It can't be seen from the river in any case. She then explained the septic system, which was approved for RV use and this use has not changed. Despite concerns, this is not related to the previous property owner's application to build a residence. There is a shoreline of over 209 feet. Sun Country Engineering did the survey and is highly qualified. The site plan was based on a fence line that was established in error. The fence is in the wrong place. The survey posts were located and correctly set. The Hearings Officer said that the shoreline is less than 200 feet, and feels the zigs and zags can't be considered. This is real property and how it is measured is very precise. The shoreline needs to be measured the same as any other property line. It makes sense to be specific and precise. Code specifies that shoreline measuring 200 feet or more allows for a private dock. Minutes of Board of Commissioners' Business Meeting Wednesday, March 30, 2016 Page l0 of 18 Ms. Dickson said that the County has approved similar applications in the past. The measurements allowed for the bends in the river, also referred to as 'nook and cranny'. The ordinary high water mark shows very specific measurements and was approved by the County. So, precise measurements have been used and approved. Mr. Driefuss built the dock in two pieces. 95 square feet is over the river and the rest is a ground -level walkway. It is part dock and part walkway. Other nonconforming uses are within the 100 foot setback, but need to be acknowledged as approved. One is the gravel driveway which has been improved and maintained. The other is the rip-raff along the river. Engineers found that this has been there for some time, securing the riverfront. Someone brought up the issue of spotted frog. Jay Bowerman of the Sunriver Nature Center looked for this and found no evidence of the frog or its habitat. She wants to incorporate the original documents and burden of proof in the record. She asked to keep the record open for a week to answer any additional questions. She explained that Mr. Driefuss did much of this work himself and obviously has a lot of pride in what he did. He has had health issues since then and won't be doing any more projects. He would like to use this property as intended during the years he has left. Commissioner DeBone asked about requirement #19 and a County or State Parks brochure. He wonders what this document is. Ms. Dickson said the State Parks brochure was given to him by that department and it includes requirement #19, whether building permits are required. She will submit this into the record as well. This brochure references County Code. Carol Macbeth of Central Oregon Landwatch said that she received her law degree last year. She observed that people seem to take the initiative to build without permits more all the time, to ask for forgiveness rather than get permission. This is an additional burden on the County. This looks like an increasing trend. Minutes of Board of Commissioners' Business Meeting Wednesday, March 30, 2016 Page 11 of 18 She agrees with the Hearings Officer regarding a 100 -foot setback for decks. Also that the spotted frog is not the only concern, as there are other animals in the wetlands and wild and scenic river area. The bank and bed of the river could be disrupted by what has been done, and the Forest Service and Army Corps. of Engineers should have been consulted. Paul Lipscomb stated that he lives in the Sisters area. He asked the Board to affirm the Hearings Officer's decision. It is important that all citizens uphold the rule of law. There have been repeated Code violations on this property over the years. These improvements were not permitted and should be denied. Others will be motivated to do the same if this is allowed. All parties need to be treated equally before the law. The Deschutes River is a principal treasure of the area and should be given the full protection of all the laws. John Heimes stated that he lives on Satterlee Way, and agreed with the previous speakers. In regard to septic tanks, no one is allowed to install one now and most were grandfathered in. Others in the area broke up or failed. They replaced their tank in 1985 with concrete and a new drainfield. He does not believe that the tank on the subject property is working right. No one can say what is going into the aquifer or the river. The ones in the area used for RVs probably have not been replaced. The property is beautiful but the work was done without permits. Joseph Craig said he lives adjacent to the property. He asked when he moved in if his dock and improvements were legal. He was told there were problems but those were eventually worked out. Mr. Driefuss' property is well kept and maintained. However, there are illegal structures. Mr. Craig said he was told he could not do the same. You should not be able to do things and then ask for forgiveness. If he can't do something himself, he doesn't want someone else's work blessed. He has a problem with the septic issue. He built a shop and followed the rules. When he dug the trench from his shop to go to the house, it filled up with water. The Driefuss' drainfield is close to his property. It is not used a lot and isn't under a lot of stress most of the time, but they sometimes have company visiting. When this property is sold, the new owner might put it under more pressure. Someone might want to turn this building into their house. Minutes of Board of Commissioners' Business Meeting Wednesday, March 30, 2016 Page 12 of 18 The dock is nice and was done with quality, although is illegal. There is a question about the river frontage measurement. There have been several surveys out there. Scott Freshwater did one of them and measured 179 feet pin to pin. He still came up under 200 with a second pin to pin measurement. He does not know how Sun Country came up with 200 feet. He wants to know how this happened. They talked about the fence, which is his but was already there. When he measured it himself with a tape measure, he came up with it being under 200 feet. William Kuhn testified that he moved here in 1986 because of land use restrictions and Deschutes County for its natural beauty. They wanted to live in the wildlife overlay to help put greater protections on the area. Giving approval to people who fail to follow the rules that are to protect the area is wrong. This takes away the rights of others. (He went on to complain about his particular case against his neighbors and the County.) There is a great deal of activity going on near where he lives. A road right of way that he granted at one point was untouched until recently. Three weeks ago construction work started to occur. This has not happened since the late 1970's. They agreed with the person to allow the access and now have to deal with people using it. They wanted to put in a chain and posts to allow access to only those who are authorized. (He went on about the legalities, problems with the neighbors and more.) Chair Unger asked Mr. Kuhn to address the topic of the hearing today. Mr. Kuhn said that the County takes away laws. He resents the applicant in his case having 45 minutes to testify while he wouldn't have the same. Todd Cleveland of Environmental Health explained that Deschutes County and he work as agents of the State. The application for a residence by the previous owner was denied due to groundwater concerns. What was not included in that denial is that the system should have been decommissioned at the time. He spoke with Bob Baggett of the DEQ, who feels that it should be decommissioned and abandoned. There is no way to properly treat and dispose of groundwater based on what they can assume from this. Minutes of Board of Commissioners' Business Meeting Wednesday, March 30, 2016 Page 13 of 18 It was permitted in 1976. Prior approval was allowed since these subdivisions were approved before land use, and they had until 1980 to get systems installed. At that time, many property owners rushed to install systems. The prior approval allowed its permitting. It is substandard and any addition or change in use would require a review at this time. The groundwater level is a concern. He has not been on this property, but others on adjacent properties and observed the groundwater level. It is a peninsula but the river level is mostly controlled. However, they can often see water flow through the test pits certain times of the year. He feels it should be decommissioned. Chair Unger said this is a different subject and process from what they are dealing with today. Mr. Cleveland said land use precedes on-site sewage approval. The improvements were done without permits and did not go through this process. Based on research, he will prepare a letter to decommission this system. Commissioner Baney said that there are a lot of properties in that area with septic systems on them. Some include residences. They do not all have newer systems. Mr. Cleveland said some were established with upgraded systems. They deal with this situation the best way they can. Commissioner Baney stated that there was a series of ownership changes for this property. She asked if the system was previously used. Mr. Cleveland said that their notes show nothing existing but would not show RV use, so he does not know for sure. Commissioner Baney asked how they can determine the integrity of the tank. Mr. Cleveland said all they can see is the top of the tank. He has not seen any that old that are still intact. It would have to be dug out below the water level of the tank to see, but even then they can't see the bottom. Chair Unger stated that these were all RV or recreational lots to start with, and there seemed to be recognition of that use. Mr. Cleveland said he doesn't know for sure. This use was not reflected in the rules. They only deal with residential uses and he doesn't know why RV use was written on the permit. The tanks were sized for a two-bedroom residence. Chair Unger said that there was no language or limitation specified for this. Mr. Cleveland said no criteria was there at the time to size the systems for RV use. Minutes of Board ofCommissioners' Business Meeting Wednesday, March 30, 2016 Page 14 of 18 Mr. Groves said that if the bathhouse was lawfully established and connected to the system, it should not have alterations. The addition of the bunkhouse needs to be recognized as to whether it has impacted this original use even if it does not have plumbing, to the extent that there is more structure, to determine whether this allows for an additional load on the system. Mr. Cleveland said this could increase the flow if there are more people using the property. Commissioner DeBone stated that the existing sewer district includes this area but does not service it. Mr. Cleveland said the systems approved previously are out there but they are not aware of the locations of many of them. If located, they all need to be authorized for use or decommissioned, since they may be creating potential health hazards. Commissioner Baney said this is in the purview of the State DEQ. Mr. Cleveland noted that this is how he thinks it should be handled. Commissioner Baney asked if the garage was permitted. Mr. Groves said it needs a permit, but the Hearings Officer found it could be allowed as it meets requirements. Ms. Dickson said she had no rebuttal at this time but will do so in writing. Mr. Groves said that the first seven days would be the open submittal period of information from any party; followed by rebuttal by anyone for seven days; and another seven days for final argument from the applicant only. This would be until April 6, April 13 and April 20. Ms. Dickson said this is acceptable. Commissioner Baney brought up the spotted frog issue. She said the Sunriver person may not have jurisdiction, and asked if there is other information in this regard. Mr. Groves said that Mr. Bowerman is asked by US Fish & Wildlife for his opinion on these kinds of things. His opinion is also their opinion. He is considered the expert. Chair Unger closed the oral record, with the written record remaining open as discussed. Minutes of Board ofCommissioners' Business Meeting Wednesday, March 30, 2016 Page 15 of 18 19. Before the Board was a Public Hearing, and Consideration of First Reading by Title Only of Ordinance No. 2016-004, Amending Code Chapter 13.08 to Reflect Current State Reference Materials and Allowable Fees. Chair Unger opened the hearing at this time. David Doyle stated that this change was a request by Environmental Health. Mr. Cleveland said that there is a statement in Code regarding permit fees, but under some circumstances this is an issue. DEQ raises their fees in other ways to cover shortages but the County cannot. The County is to charge for the actual cost of service, and some complicated issues take an inordinate amount of time. Mr. Doyle said the changes are minimal and it primarily references State DEQ documents. Mr. Cleveland said this will be reflected in the proposed 2016-17 fee schedule as well. Being no other discussion, the hearing was closed. BANEY: Move first reading by title only. DEBONE: Second. VOTE: BANEY: Yes. DEBONE: Yes. UNGER: Chair votes yes. The second reading and adoption will occur on April 13, 2016. CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 20. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District in the Amount of $24,895.05. DEBONE: Move approval, subject to review. BANEY: Second. VOTE: DEBONE: Yes. BANEY: Yes. UNGER: Chair votes yes. Minutes of Board of Commissioners' Business Meeting Wednesday, March 30, 2016 Page 16 of 18 CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-H COUNTY SERVICE DISTRICT 21. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District in the Amount of $3,618.36. DEBONE: Move approval, subject to review. BANEY: Second. VOTE: DEBONE: Yes. BANEY: Yes. UNGER: Chair votes yes. RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 22. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County in the Amount of $542,737.12. DEBONE: Move approval, subject to review. BANEY: Second. VOTE: DEBONE: Yes. BANEY: Yes. UNGER: Chair votes yes. 23. OTHER ITEMS None were offered. 24. ADJOURN Being no further discussion, the meeting was adjourned at 12:35 p. m. Minutes of Board of Commissioners' Business Meeting Wednesday, March 30, 2016 Page 17 of 18 L APPROVED this CO Day of Deschutes County Board of Commissioners. ATTEST: (6-AiteA_ Recording Secretary Alan Unger, Chair rjAr /17)-24 Tammy Ban, Vice air 2016 for the 07r Anthony DeBone, Commissioner Minutes of Board of Commissioners' Business Meeting Wednesday, March 30, 2016 Page 18 of 18 BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subject: EY If1A'S ArPI 2A-4-1-A5to91 -CLA/11`t-ci-i/bate: D/i /4" Name P fCr- J)rei 6,1 s Address r/ 2—Le Cr T3e.rtzi Phone #s E-mail address In Favor 1 c\-K\Aii Neutral/Undecided Submitting written documents as part of testimony? LJJ Yes If so, please give a copy to the Recording Secretary for the record. BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK -ii?„-ckt/10-1--CLi/ Subject: b(e,/ peki i s Nity 1 - LIY) Date: b/11/4,45' Name L4L D/k:�14 Opposed No Address go int L ,4e1A) 1A/ 41,1 --1.3 De el -7-7 61 -- Phone #s E-mail address Ca 7, K - [--/ 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 Subject: Name Address Phone #s E-mail address In Favor BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK (A.4 (i-iL -(Th tialitzn / U Siz 57?q(2_, 54-//- (r,17- 2'(3 g2GCS 7�- Date: 3 X Neutral Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Subject: Name Address Phone #s E-mail address BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Opposed No D1) 59 �JJ I( Date: 3 P ntiil / 4)45c0-4(__ ' 1, , 0 : i ? 4 / b )/ S->9' 5 l',6,) ei ' 03-- .5571— 5_ - 2\i 0 r I Itis&ektili 4 c744,7v h, (i/i,( — In Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes No If so, please give a copy to the Recording Secretary for the record. Subject: Name Address Pi\ 0,7 (nay 11-6-1 LiAeCt' 4b s e414 BOARD OF COMMISSIONERS' MEETING REOUEST TO SPEAK A444, A.64/7 -/e/, / / 7zraY _c26,7&4'?Qrz 9'-'774 7 Phone #s ,5-4t f „5 -q76 - E -mail address In Favor Neutral/Undecided Date: M Submitting written documents as part of testimony? Zi Yes If so, please give a copy to the Recording Secretary for the record. 4- mck plok BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subject: ir /467,1 g, irca ifiAJ Name(25fPki C/' L4 Address / 5 (J / r //1Ja Alter Phone #s E-mail address In Favor Neutral/Undecided Date: Opposed No Opposed Submitting Submitting written documents as part of testimony? Fr Yes If so, please give a copy to the Recording Secretary for the record. No Subject: 17 %t Name 0 Address BOARD OF COMMISSIONERS' MEETING v44 111 REOUEST TO SPEAK Phone #s E-mail address 0/ lit 61-01 a `` In Favor Neutral/Undecided Date: 6 3X) Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Opposed No April is National C e Blue Ribbon Cam comlmunities to History of the Blue Ribbon Campaign The Blue Ribbon Campaign began in the spring of 1989 when Bonnie Finney of Virginia lost her grandson, Michael Dickenson. The three-year- old died at the hands of her daughter's abusive boyfriend. Bonnie tied a blue ribbon to her car — symbolizing the blue of her grandson's bruises — and encouraged her community to do the same. Each year in Central Oregon more than 50,000 blue ribbons are distributed locally during the month of April by volunteers and community partners to promote child abuse prevention. As part of our 2016 Blue Ribbon Campaign, we are asking you to "Speak Up and Save a Child." It is a call for the adult community to take an active role in protecting the children of Central Oregon. By simply taking a child abuse prevention training, you raise awareness of child abuse in our community and create a safer environment for all children. Society as a whole has been too silent about child abuse for too long! You can be the one with courage to "Speak Up and Save a Child" by: • Reporting abuse to authorities when you suspect a child is at risk; • Taking Darkness to Light's: Stewards of Children and join over one million adults who are trained to recognize, report, and prevent child sexual abuse; • Donating to MountainStar at mtstar.org or to KIDS Center using the enclosed donation envelope or at kidscenter.org; • Talking to children about their bodies and what they can do if someone is making them feel uncomfortable; • Talking to other adults about child abuse prevention in your neighborhood and community; and • Connecting parents who are living in crisis with MountainStar's programs (toddlers and infants only). Child abuse happens every day in Central Oregon. RECO GNI In partnership: V ountainStar DS Center Thank you to our sponsors: ( bendbroadband" C ' 1 IKIRBV \�NAGELHOUT C O N S' :i u The Bulletin SE COMMUNITY CREDIT UNION kidscenter.org 541-383-5958 • mtstar.org 541-322-682o traumatic ordeals end ving a caregiver with a dor iestic;violence. Research over the past two decades confirms that children carry the effects of childhood experiences into adulthood. The more ACEs a child has, the higher their risk of developing chronic illnesses such as heart disease, depression and cancer as an adult. (Study by US Center for Disease Control & Prevention and Kaiser Permanente: www.cdc.gov/violenceprevention/acestudy/) Adverse Childhood.f, Experiences create toxicstress :leading to''; feelings of constant_ figoht r i ht ._.. fl;g ;.....-;.:,: Why are ACEs so concerning? Baby brains have tremendous potential! Eighty-five percent (85%) of a child's brain development occurs between birth and age 3. However, traumatic experiences can halt healthy growth. on -term; .' rain chan ges can cause learning iifculties, emotional & behavioral issues :& health rollems. •se �.n��ahoocl xper�ence ed by children, including verbal, p ental Ilness, addiction issues, or rr losing a;parent due to divorce or Toxic imtnshes the hysicai s(ze,' evelopment, and health of a baby's brain. The Association Between ACEs and Health Outcomes In Oregon (2011 & 2013) Comparing a person with 4+ ACEs to a person with 0 ACEs Depression Cancer Diabetes Heart Disease Suicide This means... a person with four or more ACEs is 5 times more likely to develop cancer than a person with no ACEs 0 3 5 6 Odds of Outcome 9 12 There is hope! Local programs are providing just what children with ACEs need to heal - relationships with caring adults and peers, plus coordinated care that includes: • crisis intervention • mental health • therapeutic classes counseling • home visits • parenting education • health screening Partner agencies work together to connect families with the services they need to build resiliency. Community education is a big piece of this puzzle as well - learn what you can do on the calendar to the right! Learn more at acestoohigh.org or watch the TED Talk called "How Childhood Trauma Affects Health Across A Lifetime". "Adverse childhood experiences are the single greatest unaddressed public health threat facing our nation today. -Dr. Robert Block, former President of the American Academy of Pediatrics Recognize and Report the Signs of Child Abuse Fd abuseis-dt�rided into four`maintypes : physical abuse, eglect, sexual abuse and emotional abuse. Types of:abuse . are often found in combinations rather than individually. Any child, at any age, may experience;any type of child - abuse. Since few c " ildren come forward to report abuse, make it your_ responsibility to recognize these signs and report any suspicions or disclosures -of abuse. -You may be - achild's only hope;please don't ignore your instinctsi: We - know it takes coura e to..confront child abuse and make a report. You don't have.to know for_certain if abe i uss happening or have all theianswers to report a "suspicion of Some, but not all, children who have experienced abuse' may,; exhibit.: physical or behavioral";signs.. You can protectthe children of `Central Oregon by knowing these potential -signs of abuse: IF YOU SUSPECT THAT A CHILD IS BEING ABUSED, CALL AND TALK TO TRAINED PROFESSIONALS AT 911 OR 541-548-9499- Anyone who makes a good faith report based on reasonable grounds is protected by the law. kidscenter.org 541-383-5958 mtstar.org 541-322-6820 Blue Ribbon Campaign Events - April 2016 To sign up for a training visit: kidscenter.org or call 541-306-6062. 3 Make a play date with friends who have children the same age as yours. 10 Start a parent-child walking or biking group with neighbors. 17 Establish a daily routine so your child knows what to expect. 24 Treat yourself to a spa day at home. Paint your nails or take a bubble bath. II VY IdlliiV ID�ii IlYll,lil 4 Show your support and wear your blue ribbon during the month of April. Look for the KIDS Center envelope containing your blue ribbon. Stop by local Central Oregon businesses to receive your blue ribbon. 11 Introduce yourself to another parent in your child's class and plan to have dinner together. 18 Talk to friends about organizing a babysitting co-op. 25 Darkness to Light Training at KIDS Center 6-9pm 0�E' Adapted from Making Meaningful Connections - 2014 prevention Resource Guide. 5 Talk to your children about the correct anatomical names for their body parts. 12 Internet Safety Training at KIDS Center 6-8pm 19 "MountainStar 101" Tour 4-5pm MtStar Bend 26 Host a potluck dinner with neighborhood families to swap parenting stories. 6 Classroom Simulation: Emotional Support in the Classroom 6-7:3opm More Details Below 13 "MountainStar 101" Tours (See Page 4 for more details!) 20 Let's Talk About It Training at KIDS Center 1-3pm 27 Spark! Community Conversations at Deschutes Tap Room 5:30-7:3opm More Details Below P Vul'I I110biVJWtl"'ill lldiiibliil''gilllll0. Y�� I�III�I VIII�VII''Y4 'P IGl V. pril 6, 2016: 6-7:3opm —This workshop is for anyone who works with children in classroom environment to leam ways to meet the emotional needs of children o may have suffered trauma. Leam strategies for helping children feel omfortable in a classroom environment with hands on role-play.. This workshop, ed by Cherie Skillings, LPC, MtStar's staff mental health specialist, meets the riteria fora set two training on the Oregon registry. Sign up: mtstar.org/april . VI II' V IIV JIIII Ill 111011 • 7 Hold, cuddle and hug your children often. 14 Sign up for a local parenting education class at frconline.org 21 KIDS Center Tour 5-6pm RSVP at 541.306.6063 28 Learn about community resources for families. 1 Hang blue ribbons with your child around your home. 8 Have a family game night! Even young children can play board games on an adult's "team". 15 0 Darkness I] to Light at KIDS Center loam-lpm 22 Find out what classes your library offers. Sign up for one that interests you. 29 Have a coffee with a friend or hang out at the park. 2 Tell a trusted friend when you feel stressed, overwhelmed or sad. 9 Set goals for yourself and list the steps you will need to take to accomplish them. 16 Create some arts and crafts with your child. 23 Reflect on the parenting you received as a child and how that impacts how you parent today. 30 Teach your child who they can go to if someone touches them in an uncomfortable way. Spark! Kindling A Community Conversation in Child Abuse Prevention Month April 27, 2016 at Deschutes Brewery Tap Room-5:3o-7:3opm Spark Conversation. Spark enthusiasm. Spark action. Spark change. That's what we're doing this April! Come join in the conversation to examine challenges families face and the resulting impact for our community. Community members are invited to dig in to this conversation and explore solutions for strengthening families and building healthier communities. Limited spots available. Sign up at mtstar.orgiapril kidscenter.org 541-383-5958 mtstar.org 541-322-6820 Sign Up Today For a Training to Learn How to Prevent Child Abuse! Please visit kidscenter.org for trainings held in Prineville or Madras and the current training schedule. If you are interested in attending, sponsoring or hosting any of the trainings listed above, contact KIDS Center at 541-383-5958 or kidscenter.org. 6th Annual Prevention Partners of the Year KIDS Center and MountainStar are excited to honor three community partners for their outstanding commitment to helping prevent child abuse in Central Oregon. Through training of staff, volunteers, and students, and sharing common goals of protecting children, each of these groups have dedicated valuable resources and time to create a safer community for children. Congratulations to the following organizations for your outstanding work in preventing child abuse: Healthy Families of the High Desert, Family Resource Center, Father's House Reaching the Tipping Point A tipping point is reached when five percent of a population adopts a new behavior or practice that was previously uncommon. KIDS Center has reached the tipping point in Crook and Jefferson Counties by training five percent of the adult population with Darkness to Light's "Stewards of Children®" child sexual abuse prevention program. In order to reach our tipping point in Deschutes County, we need to train approximately 90 more adults. Even when we do reach the tipping point, we still have another 95% of adults in our community that can learn how to create a safe place for children. Join the prevention movement today: you could be the next adult in our community trained to prevent child sexual abuse. Contact Kim Bohme at kbohme@kidscenter.org or at 541-306-6062 for training opportunities. "MountainStar 101" Tours These one-hour tours are meant to show community members what it takes to prevent child abuse in Central Oregon. Come and learn how we decrease the risk of abuse in families by 7o% in just six months, why we focus on babies and toddlers, and how you can help! Dates: • April 13 - 8 -gam (Bend) • April 13 - 11:15am-12:15pm (Madras) • April 13 - 4-5pm (Prineville) • April 19 - 4-5pm (Bend) kidscenter.org 541-383-5958 • mtstar.org 541-322-6820 Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM DATE: March 14, 2016 TO: Board of County Commissioners FROM: Will Groves, Senior Planner RE: Elizabeth A. Dickson's appeal of a Hearings Officer's decision. File Nos. 247 -15- 000113 -CU, 247 -15 -000114 -CU, 247-15-000115-NUV, 247 -15 -000116 -LM (247- 15-000670-A) Before the Board of County Commissioners (BOCC) is an appeal filed by Elizabeth A. Dickson, attorney for Peter Dreifuss. The appeal is submitted in response to a Deschutes County Hearings Officer's decision that a new community dock and decks, verification of non- conforming structures (bunkhouse and garage), alteration of the bunkhouse, verification of nonconforming uses consisting of fill within the flood plain and wetlands, and a septic system do not comply with all applicable regulations. The appellant requests the BOCC formally consider the decision. BACKGROUND In approximately 1976, Applicant's predecessor constructed a small structure on the property, referred to as the "bathhouse," that had a sink, toilet, shower, and laundry facilities inside and a faucet and sink outside. In 2009 and 2010, the applicant built several structures on the subject property, including the existing dock, free-standing decks, walkways, garage, and an addition to the "bathhouse" consisting of a bedroom and attached decking, creating the bunkhouse. The applicant also placed eight cubic yards of gravel on the driveway. In 2013, the county received code violation complaints concerning construction and use of improvements on the subject property without necessary permits and approvals: 247 -13205 -CE (septic system); 247 -13206 -CE (work without building permits); and 247 -C13207 -CE (work without land use approval). The applicant submitted the subject land use applications to permit the work performed after -the -fact. The Hearings Officer issued a decision on December 9, 2015 finding that the proposal does not comply with all applicable regulations. Specifically, the "bathhouse" was found to have been unlawfully established while PL -5 was the active zoning code, aboveground decks were found Quality Services Performed with Pride to be not allowed in the 100 -foot river setback, and the dock was found not to comply with a number of regulations. On December 22, 2015, the applicant appealed the decision to the BOCC. The 150 -day period for issuance of a final local decision under ORS 215 expires on January 21, 2016. The applicant has offered to toll the 150 -day clock through May 31, 2016 to allow sufficient time for the BOCC to hear this matter and issue a decision. APPEAL The notice of appeal describes several assignment of error. These are summarized below, with references to those pages within the decision where the Hearings Officer addressed the issue. 1. County Flood Plain designation should reflect actual site conditions verified by survey. H.O. Decision, pp. 32-33: "The Hearings Officer has found the county is authorized to interpret the FP Zone to apply only to those portions of the subject property located at or below the BFE based on a site-specific flood plain survey. The staff report raises the question of whether and to what extent the RR -10 Zone applies to the subject property because the entire property is zoned FP, which is a base or "primary" zone. As discussed in the findings above, in prior decisions the county has found that where, as here, a site-specific survey shows the flood plain is less extensive than the area mapped by FEMA, the provisions of the FP Zone are not applied to uses outside the surveyed flood plain and the provisions of the adjacent zone do apply. However, I have concluded that for purposes of the analysis in this decision, I will consider the entire subject property to be zoned FP. Therefore, I find the provisions of the RR -10 Zone do not apply to the applicant's proposal." Staff Note: While the BOCC might conclude that the bunkhouse and garage should be evaluated under RR -10 zone criteria (as they are above the Base Flood Elevation), the setback requirement preventing expansion of the bunkhouse and placement of the decks is identical in the RR -10 and FP zones. 2. Nonconforming Use Verification should be granted when historic photos, neighbor testimony, and County Records prove existence. H.O. Decision, pp.40-51. "The record indicates the original bathhouse was constructed on the subject property in 1976. The county's official records indicate that in 1976 the subject property was zoned RR -1, Rural Recreational Residential Zone, under PL -5, the county's first zoning ordinance which took effect in December of 1971. Sections 3.150 and 3.155 of the RR -1 Zone listed the uses permitted outright and conditionally in that zone. The Hearings Officer finds none of those uses includes the original bathhouse. Section 3.160 of PL -5 authorized two "accessory uses" in the RR -1 Zone -- "not File Nos. 247 -15 -000113 -CU, 114 -CU, 115-NUV, 116 -LM (670-A) Page 2 of 3 more than one private garage" and "home occupation." I find neither of these uses includes the original bathhouse." Staff Note: Staff understands the record to contain no debate on the establishment date of the "bathhouse". At issue is whether that use was lawful at the time of establishment under PL -5, the zoning code in effect at the time of the use establishment. Deschutes River dock requirements need clarification. H.O. Decision, pp. 16, 20-27. Staff Note: The Hearings Officer denied the dock under several criteria (including frontage and dock size). While staff believes the Hearings Officer made reasonable interpretations, BOCC affirmation or reinterpretation on these issues would likely be granted deference on any future appeal. 4. Marine Life and Wildlife Habitat identification and mitigation analysis should weight site-specific information over general regulations or observations. Staff Note: The Applicant states: "We ask the Board to consider the reason for dock restrictions and if the underlying concern to protect habitat is met, that the Board allow the dock replacement to be deemed permitted". Staff notes that the applicant appears to be requesting a variance to dock criterion, but has not applied for a variance. The applicant also included a request to reevaluate the Hearings Officer's denial of decking in the 100 -foot river setback under this appeal topic. Attachments 1. Hearing Officer's decision 2. Notice of Intent to Appeal File Nos. 247 -15 -000113 -CU, 114 -CU, 115-NUV, 116 -LM (670-A) Page 3 of 3 Er" Com:munity Development Department gor:-=-V*rittl:WAit. Planning Cdviston Budding Seely DivIlion Enii4ntunental Soils -0iiiision P.O, Box.6005 117 NW Lafayette Avenue Bend; Oregon 97708-6005 Phone: (541) 388-6575 Fax: (541.) 385-1764 http://www.deschLites.orglat APPEAL APPLICATION FEE: $4140 EVERY NOTICE OF APPEAL SHALL INCLUDE: 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 decision. 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 the de novo review as provided in Section 22.32.027 of Title 22. 4. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth In Chapter 22.32 of the County Code. 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. Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. Appellant's Name (print): Elizabeth A. Dickson Attorney. for Peter Driefuss Phone: ( 541) 317-550S Mailing Address: 7147 SW Mill View Way City/State/Zip: Bend, OR 97702 Land Use Application Being Appealed: 247-15-000113-CU/114-CU/115-NUV/116-LM Property Description: Towns 2 Range n 18C Tax Lot 4300 Appellant's Signature: See attached authorization letter dated March 2, 2015. EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. (over) 10/15 Qiiality, Services .Perf oiled- with Pride MARCH 2, 2015 TO WHOM IT MAY CONCERN: THIS AUTHORIZATION IS EXTENDED TO ELIZABETH DIXON, ATTORNEY AT LAW, WHOS ADDRESS IS HURLEY RE PC, 747 SW MILL VIEW WAY, BEND, OREGON. ATTORNEY DIXON HAS AUTHORITY IN ACT ON MY BEHALF IN REGUARDS TO ALL MATTERS PERTAINING TO THE DESCHUTES COUNTY ISSUES AS FAR AS PROPERTY ISSUES ARE CONCERNED. / PETER A. DREIFUSS 3451 DIEGO ESTATES DRIVE FALLBROOK, CA 92028 HURLEY ATTORNEYS AT LAW December 21, 2015 RE P.C. Board of County Commissioners C/a Wililam Groves, Senior Plariner Deschutes County Planning Division 117 NW Lafayette Ave. Bend, OR 97703 747 SW Mill View Way, Bend, OR 9770 541-317-5505 • Fax: 54I-3I7-5507=wwwhwdey-re,com RE: Notice mfAppeal mfHearings Officer's Decision — File Numbers 247'15-000113'C0y114'CW/115'NUW11G-LKH Dear Commissioners, via Hand and Emall to On behalf of my clients, Peter Dreifuss and Sandy Bovenzi Dreifuss, we request de novo review by the Board of County Commissioners ("BOCC")" of the December 9, 2015 Hearings Officer's Decision on applications for conditional use permits, nonconforming use verification, and landscape management review as noted above. The County decision was mailed on the date ofthe decision, so a notice of appeal must be filed by today, December 21, 2015, making this notice timely. This Ietter is accompanied by the Planning Division form and the required appeal fee of $4,140. My clients have agreed to extend the 150 -day statutory time limit to reach a final decision on their applications to Friday, April 29, 2016. Our letter extending this time limit is enclosed with this notice. Request for De Novo Review on Appeal The Dreifusses seek de novo scope of review of Hearings Officer Karen Green's decision ("Decision") dated December 9, 2015, as allowed by DCC 22.32.027, on the following grounds: 1. The 150 -day time limit will not be exceeded by hearing this appeal, because the Dreifusses have agreed to extend to April 29, 2016giving the Board approximately four months to decide to hear the appeal, allow County Staff to formulate recommendations, schedule the appeal for hearing and hold same, and make a considered review on appeal. I. Several significant policy issues are at stake in this Decision. The precedents set by this Decision may foreseeably impact other County decisions involving these timely matters: • Flood Plain designation refinement polic • Nonconforming Use Verification proof required • Deschutes River dock policy = Spotted Frog habitat identification and mitigation Page 1 of 4 Notice of Intent to Appeal Dreifuss/21455.000 December 21, 2015 Brjef Factual Statement and Procedural Posture Mr. and Mrs. Dreifuss purchased Lot 2, Block 57, Oregon Water Wonderland Unit II Subdivision ("OWWII"), in August of 2009. The 1.41 acre lot contained improvements that had been built in approximately 1976 to compUment an RV. These included a graveled driveway to the river, a bathhouse with a sink, toilet, shower, laundry facilities, and space for a table and chairs. The bathhouse was served by a 900 -gallon septic system which was authorized by Deschutes County and received a certificate of satisfactory completion in October of 1976. A boat sIip, then later a dock in the boat slip's ptace, was also built for the benefit of the lot. The lot is technically a part of the OWWU subdivision, but is not served by the subdivision's sewer service because the lot is on the southwest side of the Deschutes River, across the river from the rest of the subdivision, and a piped crossing has not been permitted or bulit. The subdivision HOA has rio immediate interest or funding to extend services to the Dreifuss lot. The Dreifusses love the quiet, screened, river -front lot with RV -customized improvements. They also enjoy traveting by RV and plan to spend summer months at the site in their RV. However, the structural improvements on the lot were over 30 years od. The septic system was checked out by a professional service and was in good condition, so they retained that and repaired and upgraded the existing bathhouse and adcled a well house, a garage, a deck, and a new dock over the old piers to go with their RV. Regrettably, they did this work without checking with the County first. A neighbor filed a code enforcement complaint and the County notified the Dreifusses that the lot improvements required permits. The subject applications are the result of the Dreifusses' efforts to comply with County law. Statement of Issues on Appeal 8. County Flood Plain Designation should reflect actual site conditions verified by suxvey. Deschutes County's Flood Plain Zone designation (FP) does not accurately reflectsite conditions at the Subject Property. The entire lot is zoned FP, though the actual base flood elevation line (BFE) area is Iimited to approximately 1/4 of the lot. The Dreifusses engaged two surveying companies to survey the lot and fix the line at its precisely correct location. See Site Plan, attached as Exhibit A. The Hearings Officer agrees that the Flood Piain Zone technically only applies below the base flood elevation line, but assumes the entire lot was FP so the improvements are not allowed. We ask the Board to consider a policy which aliows improvements above the flood line to be considered as outside of the Flood Plain Zone, where specific measurements are available to confirm same. In short, that the site-specific information supersedes general, broad -brush zoning designations for this particular lot or parcel. Page 2 of 4 Notice ofIntent to Appeal December 21, 2015 W.Nonconforming Use Veriflcation should be granted when historic photos, neighbor testimony, and County records prove existence. The Subject Property's bathhouse, constructed In 1976,was served by the permitted septic system. It was built prior to applicable permit requirements for the structure, so may be considered legal. The Hearings Officer Decision opines that it was not a nonconforming use, despite its history. Evidence presented cearIy proves to the contrary. The Dreifuss property has been served by a site -installed septic system since 1976.The County has no proof that the system was abandoned, only that an application filed in 1992 to expand it to full residential use was denied. County Staif is understandaby reluctant to encourage use of South County septic systems in light of recent controversies and known water table risks. However, existing Iawful uses have a legal right to be verified as nonconforming, and Applicant Dreifuss has provided evidence of original lawful permits and continual use. County Staif's conclusion that the 1976 septic's use was discontinued is outweighed by evidence proving continual use. Because the bathhouse and the septic were not granted NCU status by the Hearings Officer or Deschutes County Staff, the Hearings Officer declined to further analyze the changes made to the bathhouse by the Dreifusses and whether or not they extended that original 1976 RV -related use. We ask the Board to complete the analysis of the improvements, after finding that the 1976 improvements were nonconforming uses, and are therefore entitled to the protection of existing structures and uses. It is important to note that the original bathhouse contained a toiletshower, sink, washer/dryer, and table and chairs. The updates and improvements made by the Dreifusses do expand the structure to include a bed area and refirie the finishing both inside and out. However, no kitchen was added, so the structure is still not a dwelling or residence as defined by County Code definitions. The RV -accessory use is preserved from its original use in 1976. 111. Deschutes River dock requirements need clarification. The Subject Property has featured a boat slip and a dock in the past. Rotted pierare ceary visible in the silt below the waterline to prove it. The Dreifusses built a new landing platform and dock that is approximately 34 over the water and 34 over land in the area over the old piers. County Code allows o private dock if the ot has 200 feet or more of river frontage. Surveyed evidence proves the shoreline contains 209.5 feet of river frontage. See Site PIan, Exhibit A. There was dispute over how such measurement should be taken, requiring interpretation of the County Code. The Hearings Officer chose to disregard the professional surveyed measurement, and instead imposed her own method of measurement as the drafters' intent, That method of measurement resulted in a shoreline measurement of 175 feet. The Hearings Officer also considered the entire structure to be a dock, rather than just the separate part of the structure that spans the river. As suchshe found it to exceed 160 square feet maximum, when measured as a sing!e unit. We ask the Board to interpret the meaning of the Ianguage "built over or floats upon the water. . . ." We ask the Board to consider the approximately 255 square feet as 130 Page 3 of 4 Notice of ritent to Appeal Dreifuss/21455.000 December 21, 2015 square feet of dockand 125 feet of landingand so find it compliant with the personal dock Code provisions. IV. Marine Life and Wildllfe Habitat identlficatlon and mitigation analysis should weight site- specific information over general area regulations or observations ite-spmciGcynfmrmatimnovmrQmnmra/snearegulationmmroboerwatyons Deschutes River Basin concerns are regularly examined by the Army Corps of Engineers, the U.S. Forest Service, Oregon Department of Fish and Wildlife, Oregon Department of State Lands, and the Upper Deschutes Watershed Council, to name a few. AII ofthese agencies were notified of the subject application. General concerns about Spotted Frog, an endangered species, were investigated by an expert who fully examined the site for signs of habitat or activity and concluded there were none on the Subject Property. The Hearings Officer was satisfied with this expert's opinion. Despite this finding, the Hearings Officer will not consider allowing the replacement of the dock at the site. We ask the Board to consider the reason for dock restrictions, and if the underlying concern to protect habitat is met, that the Board allow the dock replacement to be deemed permitted. River setbacks of 100 feet are interpreted very narrowly by the Hearings Officer.The Dreifusses built a deck just above grde without railings to provide a river viewing area. The deck is comprised of two platforms connected by a short walkway. See Site Men, Exhibit A. County Code defines a deck as landscaping, and landscaping is allowed within 100 feet of the river. However, County Code restricts structures within the 100 -foot area of the River, and the Hearings Officer has opined that this deck is a structure, not landscaping, so must be excluded from the 100 -foot River setback. We ask the Board to consider whether this platform deck should be allowed within 100 feet of the River for viewing purposes. Thank you, in advance, for your consideration of this request. If accepted for appeal to the Board of County Commissioners, we shall supplement this information for clarification and we shall provide a complete transcript of any hearing below, such as is available from Planning Division digital records, as required by DCC 22.32.024. Sincerely, Elizabeth Dickson EAD/mls Cc: Client Page 4of4 xWuta\mAcnmtnle*d\rex"opeter zm5souo\ bvccan»eaKnuAureVuomw12.z1.15unm ��'rili s r xDop'STIZ'ZT Isanbau Bulgoi\VIIN\1V3ddV MOB \OOTSS4TZ 3.13d 'SSTUIRICAO\S31HIN3170\zii\elea\ri lualp :DD s1w/aV3 uos)R0 'V illeclez113 '9I0Z `6Z 1Pdv 'Aeppi 04 aunpeep uolspap Lflpuapca04a)J!I Won\ sassnjle.10 at -I1 .sAep sTz paa3xa lou Aew `uoge!paw Jul uopas sq o (0T) uopasqns ui pammud se ;dam Nuolsuava lie Jo !no; ayi quemdde ay; Io lsanbaJ uappm ay; le auq; JO popad pai;pads e JO papuma aq Aew uopas spn ;43 (T) uopasqns ui ;as upped ayi :SM0I101 SB palp s! 43!tim 1S)LZVSTZ SHO id uoisual.xa slto lsanbai Alinj.padsai am •suoneD!!dde Supuad ,sluanD Jno uo uolspap leuti s,AlunoD at 10 aDuenss! ail J01 will! atiiR Amlnlels atp lo uopue4xa pucnes e Isanbal Allewioi Agway am 'LIDT1S SV 'AnalnaJ onou ap JOI (IIDD09„) S.181.10!SS!WW03 jo Fueoe AlunoD salnyDsao eq o suopeDlidde uesu aq uo `STOZ '6 JaqwaDaa palep uo!spap sdaaujo s2upeaH alp leadde 04puawl am Imo noA wiojul 04 s! Jauals jo asoctind eta .suoneD!!dde asn puepauoguaw-aAoqe au; u! ssnilaio guanog Apues PUB ssnmaJa Jalad luasaJciaJ saDglo in0 Jea0 panbati 2uM01.1A11-9TT/A11N-STI/f1D-nt/n3-ETT000-ST-LVZ suoRemddv BLquueid as Puel :e21 £OLL6 110 Poe8 enuenv auaAejel MN LIT Jauueld Joluas IsanalD WM oh Suluueld AlunoD saintosao bxrsainipsap@saAao•woom al pug Lyn wog • L.09S-LTE-1PS :xeJ • SOSS-LIE-IPS EOLL6 dO 'PueEI ',CoM me!A IUVJ MS LPL STOZ '1Z Jaclamaa AINMO,LIV anH DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: 247 -15 -000113 -CU, 247 -15 -000114 -CU, 247-15-000115-NUV, 247 -15 -000116 -LM APPLICANT: Peter Dreifuss 14226 Midland Road Poway, California 92064 PROPERTY OWNERS: Peter Dreifuss & Sandra Bovenzi 14226 Midland Road Poway, California 92064 APPLICANT'S ATTORNEYS: REQUEST: Elizabeth Dickson and Ken Katzaroff Hurley Re, PC 747 S.W. Mill View Way Bend, Oregon 97702 Applicant requests approval to establish a community dock and decks, verification of non -conforming structures (bunkhouse and garage) and approval to alter the bunkhouse, verification of nonconforming uses consisting of fill within the flood plain and wetlands and a septic system, and LM review for the bunkhouse and garage, on property zoned RR -10, FP, WA and LM, and located adjacent to the Deschutes River south of Bend. STAFF REVIEWER: Will Groves, Senior Planner HEARING DATE: August 25, 2015 RECORD CLOSED: October 13, 2015 I. APPLICABLE STANDARDS AND CRITERIA: A. 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 18.60, Rural Residential Zone — RR- * Section 18.60.020, Uses Permitted Outright * Section 18.60.030, Conditional Uses Permitted * Section 18.60.040, Yard and Setback Requirements * Section 18.60.050, Stream Setback * Section 18.60.060, Dimensional Standards * Section 18.60.070, Limitations on Conditional Uses Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 1 01 62 3. Chapter 18.84, Landscape Management Combining Zone — LM * Section 18.84.020, Application of Provisions * Section 18.84.030, Uses Permitted Outright * Section 18.84.040, Uses Permitted Conditionally * 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 18.88, Wildlife Area Combining Zone — WA * Section 18.88.020, Application of Provisions * Section 18.88.030, Uses Permitted Outright * Section 18.88.040, Uses Permitted Conditionally * Section 18.88.060, Siting Standards * Section 18.88.070, Fence Standards Chapter 18.96, Flood Plain Zone — FP * Section 18.96.020, Designated Area * Section 18.96.040, Conditional Uses Permitted * Section 18.96.060, Limitations on Conditional Uses * Section 18.96.080, Criteria to Evaluate Conditional Uses * Section 18.96.090, Yard and Setback Requirements * Section 18.96.100, Stream Setback * Section 18.96.110, Dimensional Standards * Section 18.96.130, Interpretation of FIRM Boundaries 6. Chapter 18.116, Supplementary Provisions * Section 18.116.040, Accessory Uses 7. Chapter 18.120, Nonconforming Uses * Section 18.120.010, Nonconforming Uses * Section 18.120.030, Exceptions to Yard Requirements 8. Chapter 18.128, Conditional Use * Section 18.128.010, Operation * Section 18.128.015, General Standards Governing Conditional Uses * Section 18.128.020, Conditions * Section 18.128.270, Fill and Removal B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.24, Land Use Action Hearings * Section 22.24.140, Continuances and Record Extensions Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 2 of 62 11. FINDINGS OF FACT: A. Location: The subject property has an assigned address of 17266 Satterlee Way, Bend, 97707. It is further identified as Tax Lot 4300 on Deschutes County Assessor's Map 20- 11-18C, and as Lot 2, Block 57, in the Oregon Water VVonderland Unit II Subdivision. B. Zoning and Plan Designation: The subject property is zoned Flood Plain (FP), Wildlife Area Combining Zone (WA) to protect a deer migration corridor, and Landscape Management (LM) due to its proximity to the Deschutes River. The property is designated Flood Plain on the Deschutes County Comprehensive PIan map. C. Surrounding Zoning and Land Uses: Surrounding land consists of residential subdivisions lots zoned RR -10` FP and LM developed with dwellings and accessory D. Site Description: The subject property is 1.41 acres in size and roughly rectangular. It abuts the Deschutes River on the north and Satterlee Way on the south and has access from Satterlee Way via a 400'foot-|ong gravel driveway. The property is improved with: an on-site septic system including an underground tank and dram field; a well house; a structure including a bathroom, bedroom, laundry facilities, gas fireplace, and attached deck (hereafter "bunkhouse"); a prefabricated detached metal storage building (hereafter "garage"); free-standing decks; a dock/pier; raised wood walkways connecting the bunkhouse, garage and decks; and a gravel driveway and RV parking area.1 E. Chronology and Land Use History:2 The subject property was purchased by Shermari and Blanche Tucker in November of 1976. At about that time, James and Fannie Cate purchased the adjacent lot to the west, Lot 1 of Block 57. The two lots initially shared a well and electrical service. In October of 1976, Mr. Tucker installed and received a certificate of satisfactory completion for an on-site septic system on the subject property that included a 900 -gallon metal septic tank, 75 feet of sewer Iine, and 100 feet of dram field line. The certificate stated the septic system was for an ^R.V." It indicated the system would be 150 feet from the river and that there was a well on the property. Shortly after receiving this certificate, the Tuckers constructed a small structure on the property, referred to as the "bathhouse," that had a sink, tmi|ed, shower, and laundry facilities inside and a faucet and sink outside. In 1977, the Tuckers and Cates built a boat slip on the subject property for use by the owners of both lots. In 1978, the boat slip was replaced with a dock. Sometime between 1985 and 1987 the dock was removed or destroyed. In 1992, Blanche Tucker applied for a septic authorization notice to use the on-site septic system on the subject property for a new dwelling. The authorization notice was denied. The letter of denial stated in ` These improvements are depicted in numerous photographs in the record, including the photos in Exhibit V to the applicant's burden of proof and photos submitted at the public hearing by Joseph Craig (Hearing Exhibits 1-6). 2 This chronology is based upon information in the record submitted by county staff, interested parties, and the applicant, including comments the applicant made to the Hearings Officer during my site visit. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 3 of 62 "Your existing septic system was installed and a certificate of satisfactory completion issued October 20, 1976, as specified in OAR [Oregon Administrative Rules] 340-71-200; prior construction permits or approvals, a certificate of satisfactory completion is valid for one year, for connection of the system to the facility for which it was constructed. (Ref. OAR 340- 71-175(8)). After the one year period, rules for Authorization Notices or Alteration Permits apply, as outlined in OAR 340-71-205 and 340-71-210. The information gathered from our files and the on-site inspection will in the judgment of Deschutes County Environmental Health Section; [sic] `proposed operation of this system would cause pollution of public waters or create a public health hazard, therefore system installation or use shall not be authorized..' (Ref. OAR 340-71-130(1))." In January of 1994, Blanche Tucker sold the subject property to the Cate family. In September of 2005, the Cate family sold both Lots 1 and 2 to Ronald Cunningham. Sometime after he purchased the lots, Mr. Cunningham constructed another dock on the subject property. In 2007, a code violation complaint concerning construction of this dock and installation of a sign on the property without permits was filed (C-07-232). In January of 2008, Mr. Cunningham requested verification of the dock as a non -conforming use and permission to alter it. The county denied the request in an administrative decision dated April 17, 2008 (NCU-08-1). The decision stated in relevant part: "Staff finds that boat docks were first regulated by the County on July 14, 1989, in Ordinance 89-009. The adoption of this ordinance made existing boat docks nonconforming uses. Boat docks are now identified as uses permitted conditionally in DCC Section 18.96.040. * * * The information provided by the applicant consists of a letter written by the former owner of this lot, which describes the history of this dock since it was first built in 1978. It describes how the dock was modified over time.'. County Assessor's records show that there was a dock on this lot, tax lot 4300, as of August 29, 1985. * * * Staff finds that there is sufficient evidence in the record to determine that there was a dock established on this lot prior to July 14, 1989, and that it was lawfully established. * * * Aerial photographs from 1996, 2000 and as recently as June 2005 do not show a dock on this lot. * * *. In summary, the record shows that there was a dock on this lot in 1985, and that there is now a row of old pilings that are used to support the river side of the new dock. * * * Staff believes the new dock was built sometime around 2005; however, there is not sufficient evidence to confirm this date. Based on aerial records and neighbor's comments on the record, it appears that there have been long periods of time during which there was not a dock here. In summary, staff does not believe that there is sufficient physical or factual evidence to show that there was a dock in this location which has been used continuously, without abandonment or interruption, Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 4 of 62 from July 14, 1989 to 2005. For these reasons, staff finds the nonconforming use has been abandoned. * * * (Sltaff concludes that the subject boat dock (consisting of the decking, beams, new structural system and railings) is not a legal nonconforming use. Staff finds that the existing row of old round pilings used to support the nonpermitted deck are a legal nonconforming use. Regarding the aspect of the application pertaining to the alteration of the nonconforming use of a dock, staff finds that it does not comply with applicable standards and criteria of the Deschutes County zoning ordinance." (Emphasis added.) Sometime after this decision was issued, the Cunningham dock was removed.3 In August of 2009, Mr. Cunningham sold the subject property to the applicant and his wife. in 2009 and 2010, the applicant built several structures on the subject property, including the existing dock, free-standing decks, walkways, garage, and an addition to the "bathhouse" consisting of a bedroom and attached decking, creating the bunkhouse. The applicant also placed eight cubic yards of gravel on the driveway. In 2013, the county received code violation complaints concerning construction and use of improvements on the subject property without necessary permits and approvals: 247- 13205 -CE (septic system); 247 -13206 -CE (work without building permits); and 247- C13207 -CE (work without land use approval). F. Procedural History: On March 6, 2015, the applicant submitted the subject applications to address the code violations. By a letter dated April 1, 2015, the Planning Division advised the applicant that the application was incomplete. The applicant submitted the missing information on July 15, 2015, and the application was accepted as complete on that date. Therefore, the 150 -day period for issuance of a final local land use decision under ORS 215.427 would have expired on December 2, 2015. A public hearing on the applications was scheduled for August 25, 2015. On that date, the Hearings Officer conducted a site visit to the subject property and vicinity accompanied by Senior Planner Will Groves. At the public hearing, the Hearings Officer disclosed her observations and impressions from the site visit, received testimony and evidence, left the written evidentiary record open through October 6, 2015, and allowed the applicant through October 13, 2015, to submit final argument pursuant to ORS 197.763. The record closed on October 13, 2015. Because the applicant agreed to extend the written record from August 25 through October 13, 2015, under Section 22.24.140 of the development procedures ordinance, the 150 -day period was extended for 49 days and now expires on January 21, 2016.4 As of the date of this decision there remain 44 days in the extended 150 -day period. 3 The record includes a copy of a May 2008 determination by DSL that no state fill -and -removal permit was required for the dock because it involved less than 50 cubic yards of fill. 4 By an electronic mail message dated September 14, 2015, the applicant's attorney Ken Katzaroff stated the applicant agreed to toll the 150 -day period as necessary to allow the county to issue its final decision. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 5 of 62 G. Proposal: The applicant built the existing dock, free-standing decks and garage, altered the bunkhouse, and placed gravel on the driveway and rocks on the riverbank, without necessary permits and approvals. The applicant requests conditional use approval to make lawful the dock, free-standing decks and garage. The applicant seeks verification of the bunkhouse and maintenance of the gravel driveway as lawful nonconforming uses. The applicant also seeks approval to alter the bunkhouse with the addition of a room and attached decking, and approval to maintain the gravel driveway in the future by adding gravel. The applicant also requests verification of a nonconforming use consisting of the existing on-site septic system. Finally, the applicant requests LM site plan approval for the bunkhouse and garage. 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 Transportation Planner, Building Division, and Environmental Soils Division; the La Pine Fire Department; the Oregon Department of Fish and Wildlife (ODFW) and Department of State Lands (DSL); and the U.S. Forest Service (USFS) and U.S. Army Corps of Engineers (Corps). These comments are set forth verbatim at pages 2-4 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 Road Department and Assessor; the Upper Deschutes Watershed Council; and the U.S. Fish and Wildlife Service. Public 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 subject property. The record indicates these notices were mailed to the owners of twenty 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 public comments consisting of four letters and a petition signed by thirty-four persons. In addition, three members of the public testified at the public hearing. Public comments are addressed in the findings below. J. Lot of Record: The subject property is a lot of record as Lot 2, Block 57, in the Oregon Water Wonderland Unit II Subdivision. 111. CONCLUSIONS OF LAW: A. Summary. 1. Zoning. The Hearings Officer finds the FP Zone on the flood plain on the subject property is located at or below the site-specific surveyed base flood elevation (BFE). However, for purposes of determining the lawfulness of the applicant's improvements on the subject property, 1 find 1 must consider the entire subject property to have been zoned FP when those improvements were constructed. 2. Septic System. The Hearings Officer finds the status of the septic system on the subject property is not properly before me because I lack authority to determine its lawful use through nonconforming use verification. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 6 of 62 3. Gravel Driveway and Riprap. The Hearings Officer finds the gravel driveway and riprap are nonconforming uses.5 I find the applicant's previous placement of gravel on the driveway and rocks on the riprap, as well as the applicant's proposed future placement of gravel on the driveway every five years, constitute normal maintenance of a nonconforming use. 4. Free-standing Decks. The Hearings Officer finds these structures are conditional uses in the FP Zone. However, they cannot be approved because they violate the 100 -foot setback from the Deschutes River in the FP and LM Zones and don't qualify for a river setback exception. 5. Dock. The Hearings Officer finds the dock can be approved as the conditional use of "community dock" in the FP Zone with imposition of conditions of approval. However, I find the applicant has not demonstrated the dock complies with the fill -and -removal conditional use criteria to the extent its construction involved fill and removal. 6. Original Bathhouse. The Hearings Officer finds this structure was not a nonconforming use because it was illegal when it was constructed in 1976, and because it qualified as a conditional use when the subject property was zoned FP in 1988. However, I find it does not satisfy the applicable conditional use criteria for such use because it violates the 100 -foot river setback and does not qualify for an exception thereto. 7. Bunkhouse. The Hearings Officer finds that because the bathhouse was not a nonconforming use, its enlargement into the bunkhouse was not a lawful expansion or alteration of a nonconforming use. The bunkhouse does qualify as a conditional use in the FP Zone. However, the bunkhouse does not satisfy all conditional use approval criteria because it violates the 100 -foot river setback from the Deschutes River in the FP and LM Zones and does not qualify for an exception thereto. The bunkhouse also does not qualify as an "accessory structure" under Section 18.116.040 because it does not satisfy all requirements applicable to the primary recreational use of the property — i.e., the river setback. 8. Garage. The Hearings Officer finds the garage qualifies as a conditional use in the FP Zone, but does not satisfy all conditional use approval criteria. However, the garage can be approved as an "accessory structure" under Section 18.116.040. And the garage satisfies the applicable LM Zone site plan approval criteria. B. Preliminary Issue. The applicant's burden of proof statements request nonconforming use verification for the septic system. The applicant submitted evidence and argument concerning the history and status of that system. On-site septic systems are not identified in Title 18 as uses permitted outright or conditionally in any zone. Title 18 makes reference to septic systems only in the context of minimum stream setbacks. For example, Section 18.60.050 of the RR -10 Zone and Section 18.96.100 of the FP Zone require septic systems to be set back at least 100 feet from streams. Section 18.84.090(C) of the LM Zone states in relevant part: The placement of on-site sewage disposal systems shall be subject to joint review by the Planning Director or Hearings Body and the Deschutes County Environmental Health Division. The placement of such systems shall minimize the impact on vegetation along the river and shall allow a dwelling to be constructed on the site as far from the stream or lake as possible. Sand filter systems may be 5 Webster's Dictionary defines "riprap" as "a foundation or sustaining wall of stone or chunks of concrete thrown together without order (as in deep water); also: a layer of this or similar material on an embankment slope to prevent erosion." Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 7 of 62 required as replacement systems when this will allow a dwelling to be located further from the stream or to meet the 100 -foot setback requirement. The Hearings Officer finds the stream setback provisions in Title 18 regulate only the location of a septic system and not its lawful use. That is because on-site sewage disposal systems are regulated by Chapter 13.08 of the Deschutes County Code which regulates on-site sewage disposal and septic tanks. Chapter 13.08 implements the on-site sewage disposal administrative rules of the Oregon Department of Environmental Quality (DEQ) in OAR Chapter 340. As discussed in the Findings of Fact above, the 1976 certificate of completion and the 1992 denial of an authorization notice for the septic system were issued by the county's Environmental Soils Division pursuant to these administrative rules. In a September 24, 2015, electronic mail message to the applicant's attorney, included in the record as Exhibit NN to the applicant's burden of proof, Todd Cleveland of the Environmental Soils Division stated in relevant part: "Authorization Notices are required to place an existing system into service, reconnect to, change the use of, or increase the projected daily flow into an existing onsite system (OAR 340-071-0205(1)). The Certificate of Completion for the system was issued on October 20, 1976. This means that the system was classified as an existing system and no record shows that the system was placed into service. There is no record other than the information you gathered that shows the bath house existed in 1976/77. Authorization Notice from 1992: Upon looking at the application, the plot plan and the letter, my conclusion regarding the 1992 Authorization Notice is that the proposal to place the system into service was denied. * * * If the bath house is determined to have existed then we will address it as a pre- existing use. This depends on the final decision of the Hearings Officer. * * * The outcome would likely result in Environmental Soils following our policy addressing existing residences on high groundwater properties with upgrades to the existing system required. * * *" In other words, according to Mr. Cleveland, the question of whether the existing septic system can lawfully be used to serve the uses on the subject property, with or without upgrades, is a matter for the Environmental Soils Division to determine under DEQ's rules. For these reasons, the Hearings Officer finds I lack authority to determine the lawful status of the existing on-site septic system through the applicant's request for verification of a nonconforming use under Title 18. C. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance FLOOD PLAiN ZONE STANDARDS 1. Chapter 18.96, Flood Plain Zone a. Section 18.96.020, Designated Area Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 8 of 62 The areas of special flood hazard identified by the Federal Insurance Administration in a scientific and engineering report entitled "Flood Insurance Study for Deschutes County, Oregon and Incorporated Areas" revised September 28, 2007, with accompanying Flood Insurance Rate Maps is hereby adopted by reference and incorporated herein by this reference. The Flood Insurance Study is on file at the Deschutes County Community Development Department. The Flood Plain Zone shall include all areas designated as "Special Flood Hazard Areas" by the Flood Insurance Study for Deschutes County. When base flood elevation data has not been provided in the Flood Insurance Study, the Planning Director will obtain. review and reasonably utilize any base flood elevation or floodway data available from federal, state or other sources, in determining the location of a flood plain or floodway. b. Section 18.96.130, Interpretation of FIRM Boundaries The Planning Director shall make interpretations where needed, as to exact location of the boundaries of the areas of special flood hazards (for example, where there appears to be a conflict between a mapped boundary and actual field conditions). Such interpretations shall be processed as a development action pursuant to Chapter 22.16. (Emphasis added.) FINDINGS: The threshold question under these provisions is whether and to what extent the FP Zone applies to the subject property. "Special Flood Hazard Areas" on the FEMA Flood Insurance Rate Maps (FIRM) are lands that would be inundated by a 100 -year flood event — i.e., that are at or below the base flood elevation (BFE). The record indicates the entire subject property is zoned FP on the basis of the FIRM for the section of the Deschutes River near this lot -- Map No. 41017C1130E, revised September 28, 2007. The applicant submitted a site-specific flood plain survey, performed by Scott Freshwaters, Licensed Professional Surveyor, that states the BFE at the subject property is at an elevation of 4164.2 feet. The survey shows the dock, free-standing decks, and portions of the gravel driveway are at or below the BFE, but that the rest of the driveway and the bunkhouse, well house, garage and septic system are located above the BFE. The staff report notes that in prior decisions, the county has concluded that where a site-specific flood plain survey showed the actual flood plain to be different than the area mapped by FEMA, the FP Zone provisions do not apply to areas or uses outside the surveyed flood plain, and that in such circumstances the county considers the appropriate adjacent zone to apply to the land above the surveyed BFE. The Hearings Officer finds Sections 18.96.020 and 18.96.130 authorize the county to interpret the extent of the flood plain based on site-specific flood plain surveys. Therefore, the only improvements within the flood plain on the subject property are the dock, free-standing decks, and portions of the gravel driveway located below the BFE. Surrounding land outside the FP Zone is zoned RR -10. Therefore, in accordance with past county practices, the appropriate adjacent zoning district would be the RR -10 Zone. However, the Hearings Officer finds it would not appropriate to apply the RR -10 Zone to the uses on the Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 9 of 62 subject property above the BFE because the entire subject property was zoned FP when the applicant constructed the improvements in question. To the extent the applicant considered the subject property's zoning when undertaking those improvements, he was entitled to rely on the county's official zoning maps that zoned the entire property FP. Therefore, my determination of whether the applicant's improvements to the subject property above the BFE — the bunkhouse and garage -- are, or can be made, lawful is based on the provisions of the FP Zone. c. Section 18.96.040, Conditional Uses Permitted The following uses may be allowed subject to applicable sections of this title: * * * C. Single-family dwelling * * * on an individual lot. * * FINDINGS: Section 18.04.030 includes the following relevant definitions: "Dwelling, single family" means a detached building containing one dwelling unit and designed for occupancy by one family only, not including temporary structures such as tents, teepees, travel trailers and other similar structures. "Dwelling unit" means one or more rooms in a building designed for occupancy by one family and having not more than one cooking area or kitchen. The applicant's July 15, 2015 supplemental burden of proof describes the bunkhouse as a "vacation home" used by the applicant in tandem with an RV. The Hearings Officer finds that characterization is not accurate. As discussed in the Findings of Fact above, the original bathhouse was a small structure that contained only bathroom and laundry facilities. The applicant added a bedroom to create the bunkhouse. Neither the bathhouse nor the bunkhouse included a kitchen or cooking are. The language describing a "dwelling unit" as having "not more than one" kitchen is somewhat ambiguous because the phrase "not more than one" kitchen could mean zero kitchens. Nevertheless, the Hearings Officer finds that in the context of the rest of the definitions of "dwelling unit" and "dwelling, single family," and in particular the requirement that a dwelling unit be "designed" for occupancy by a family, the most reasonable interpretation of the definition of "dwelling unit" is that it must have a kitchen or cooking area. For these reasons, I find the bunkhouse is not a conditional use as a single-family dwelling. F. Excavation, grading and fill and removal within the bed and banks of a stream or river or in a wetland, subject to DCC 18.120.050 and 18.128.270. Excavation, grading and fill within any area of special flood hazard identified in DCC 18.96.020. FINDINGS: This paragraph authorizes as a conditional use fill and removal within the bed and banks of a river, wetlands, and flood plain. Based on aerial photographs in the record and the Hearings Officer's site visit observations, I find a significant amount of gravel and some large rocks added to the riprap have been placed at or below the BFE, and therefore are within the flood plain associated with the Deschutes River. In addition, according to the South County Local Wetland Inventory (LWI), much of the subject property is mapped wetland. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 10 of 62 The applicant argues placement of the additional gravel on the driveway and rocks on the riprap should not be considered "fill and removal" based on the following reasoning: "Deschutes County only defines the term `fill and removal' as a term that includes any deposit or removal of material. No threshold volume amount or other criteria, such as type of material, are defined. Absent additional criteria, the movement of even one pebble could qualify as 'fill and removal' under the Deschutes County Code. For clarification, we turn to State statutes and regulatory authority. The purpose of `fill and removal' regulations under state regulations is to prevent significant addition or removal of material that would affect the river or the riverbank's integrity. These regulations were adopted pursuant to Oregon's Removal -Fitt Law (ORS 196.795-990). That law requires that any person planning to 'remove or fill' material `within the waters of the state' shall obtain a permit from the Oregon Department of State Lands (DSL'). This means that permits are only required when performing work below the ordinary high watermark of a river or stream such as the Deschutes River. See Removal Fill Guide, Exhibit T at page 24." Section 18.04.030 defines "fill and removal" as: ... the deposit or removal by artificial means of material at a location within the waters of any take, river or stream, or in wetlands or riparian areas. The Hearings Officer finds this definition is clear and unambiguous in applying to the deposit or removal of any material in the flood plain, wetlands or riparian areas. Therefore, it is neither necessary nor appropriate to look to the statutory language to interpret the county code definition. The staff report states, and I concur, that under the plain language of this definition, the applicant's deposition of gravel and rocks below the BFE and in the NWI-mapped wetlands constitutes fill that is a conditional use in the FP Zone unless it falls within one of the exceptions established in Chapter 18.120 of the code. Section 18.120.050 authorizes certain fill -and -removal activities as exceptions. The Hearings Officer finds none of those exceptions includes the applicant's fill. However, Section 18.120.010, addressing nonconforming uses, states in relevant part: Except as otherwise provided in DCC Title 18, the lawful use of a building, structure or land existing on the effective date of DCC Title 18, any amendment thereto or any ordinance codified therein may be continued although such use or structure does not conform with the standards for new development specified in DCC Title 18. A nonconforming use or structure may be altered, restored or replaced subject to DCC 18.120.010. No nonconforming use or structure may be resumed after a one-year period of interruption or abandonment unless the resumed use conforms with the provisions of DCC Title 18 in effect at the time of the proposed resumption. C. Maintenance of a Nonconforming Use. Normal maintenance of a verified nonconforming use or structure sha!l be permitted. Maintenance does not Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 11 of 62 include alterations which are subject to DCC 18.120.010(E). * * * (Emphasis added.) Regulation of fill and removal within the flood plain took effect with the adoption of two ordinances. The flood plain provisions in Title 18 took effect on August 17, 1988, with the adoption of Ordinance No. 88-030. The fill -and -removal provisions of Title 18 took effect on March 29, 1989, with the adoption of Ordinance No. 89-009. Therefore, the Hearings Officer finds that to the extent the gravel driveway and riprap on the subject property pre -date adoption of these ordinances, they could qualify as nonconforming uses that can lawfully be maintained. The Hearings Officer finds the questions under the nonconforming use provisions in Section 18.120.010 are: (1) whether the gravel driveway and riprap are nonconforming uses; (2) whether the applicant's placement of additional gravel on the driveway and additional rocks on the riprap constituted "normal maintenance of a verified nonconforming use;" (3) whether maintenance of a verified nonconforming use can occur prior to formal verification of that use; and (4) if the applicant's fill -and -removal activities do not qualify as normal maintenance of a verified nonconforming use, do they satisfy the applicable conditional use approval criteria? Each of these questions is addressed in the findings below. 1. Nonconforming Use. The record includes numerous aerial photographs of the subject property and vicinity dating from June of 1979 (Exhibit B to the applicant's burden of proof) through 2014 (photos submitted by staff on August 6, 2015). The Hearings Officer finds that due to the small scale of the 1979 aerial photos, it is not possible to determine the size and location of any gravel driveway on the subject property at that time. However, I find it is clear from the 1985 and 1987 aerial photos that the gravel driveway was in place and extended all the way to the riverbank when those photos were taken. That is because the 1985 aerial photo shows a gravel area adjacent to the dock that appears to provide access to the dock, and the 1987 aerial photo shows that the gravel area has been expanded across the property line to the east where it is supported with concrete debris. With respect to the riprap, the aerial photos beginning in 1985 show a straight riverbank line, strongly suggesting the riverbank was stabilized with riprap at that time.6 The Hearings Officer finds from the above-described evidence that both the gravel driveway and the riprap were placed on the subject property prior to 1988, and therefore these features constituted nonconforming uses. 2. Applicant's Previous Maintenance Activities. The applicant testified that in 2009-2010 he planted grass over portions of the pre-existing gravel driveway and placed rocks on the top of the riverbank at the edge of the lawn to create a boundary. He also added approximately eight cubic yards of gravel to the driveway to fill in potholes and to level the driveway surface. The applicant requests that this previous fill activity be authorized as normal maintenance of nonconforming uses, and also requests authority to continue such maintenance in the future by adding up to eight cubic yards of gravel every five years. The applicant also testified that when he purchased the subject property, the riverbank already was stabilized with riprap, and that he placed some additional rocks on the riprap to maintain the bank in its present location and 6 The only ground -level photograph in the record that predates the applicant's fill activities is dated September 30, 2009, is attached to a November 12, 2014 letter from Bonnie Brown, and is included in the record as Exhibit 0 to the applicant's burden of proof. This photo shows riprap along a portion of the riverbank. However, I find that because of its date, this photo does not establish the presence of riverbank armoring with rocks prior to March of 1989. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 12 of 62 configuration and to prevent erosion. The Hearings Officer finds both the applicant's previous fill activities on the driveway and riprap, and his proposed future maintenance of the driveway, constitute normal maintenance of nonconforming uses. 3. Timing of Nonconforming Use Verification. Paragraph (B)(3)(c) of Section 18.120.010 authorizes normal maintenance of a "verified" non -conforming use. Staff questions whether use of the term "verified" to modify non -conforming use means the nonconforming use must have been verified before such maintenance lawfully could occur. The applicant's fill activities were not "verified" as a nonconforming use before he undertook them. The Hearings Officer finds "verified" as used in Section 18.120.010 is a term of art because Paragraph (B) of that section establishes a specific process and specific standards for "verification" of a nonconforming use. Therefore, the text of this paragraph could be read to require verification prior to maintenance of a nonconforming use. However, I find the context of this language does not support that interpretation. That is because some provisions of Section 18.120.010 authorize certain activities concerning nonconforming uses without reference to whether they are "verified." For example, Paragraph (A) authorizes the expansion or replacement of a nonconforming structure as long as it was "lawfully established." Similarly, Paragraph (E) authorizes alteration of a nonconforming use without reference to whether it was "verified." In contrast, Paragraphs (C) and (D), respectively, authorize "maintenance" and "restoration or replacement" of a "verified" nonconforming use. More importantly, Section 18.120.010(B)(1) states verification of a nonconforming use is required "prior to or concurrent with" any application to alter or restore the use. (Emphasis added.) The quoted language authorizes what the applicant did here — i.e., concurrently requesting verification of and permission to maintain a nonconforming use. For the foregoing reasons, the Hearings Officer finds the applicant's deposit of gravel on the driveway and rocks on the riprap was normal maintenance thereof without prior verification of the driveway and riprap as nonconforming uses. Accordingly, I find these fill activities do not require conditional use approval in the FP Zone. G. Recreational uses requiring only structures having an insignificant effect on flood waters outside the Floodwav, such as golf courses, tennis courts, driving ranges, archery ranges, picnic grounds, boat launching ramps, swimming areas, wildlife or nature preserves, game farms, fish hatcheries, shooting preserves and hunting or fishing areas subject to DCC 18.128, except in areas designated "Forest" or "Agriculture" on the Comprehensive Plan Map. * * * I. All new construction, expansion or substantial improvement of an existing dwelling, an agricultural related structure, a commercial, industrial or other non residential structure, or an accessory building. (Emphasis added.) FINDINGS: The subject property has a long history of use for recreational purposes. Initially it was developed by the Tuckers as an RV lot with a gravel driveway, on-site septic system, and bathhouse. Subsequently, the Cates and Cunningham added a boat slip and a dock which later was removed. The applicant improved the property with a grave! RV parking space, and constructed another dock, free-standing decks, wellhouse, connecting walkways, and the Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 13 of 62 garage, and expanded the bunkhouse, all to support the continuing recreational use of the property. The question, then, is whether the dock, decks, bunkhouse and garage constitute conditional uses in the FP Zone, and if not, whether they qualify as nonconforming uses.' Decks. Unlike the gravel driveway and riprap discussed above, the free-standing decks did not exist prior to 1988. Therefore, the Hearings Officer finds these structures are not lawful nonconforming uses and require conditional use approval in the FP Zone. The applicant argues the free-standing decks are permitted outright in the FP Zone because decks are included in the definition of "landscaping" in Section 18.04.030 which states: "Landscaping" means trees, grass, bushes, shrubs, flowers, and garden areas, and incidental arrangements of fountains, patios, decks, street furniture and ornamental concrete or stonework and artificial plants, bushes or flowers. The applicant reasons as follows: "Applicant is seeking approval for landscaping in the form of an at -grade platform deck. Under Deschutes County Code 18.04.030, decks are included in the definition of landscaping. The deck on the subject property is used for viewing of the Deschutes River. The deck is a split-level deck that is built near grade on pier blocks. The deck is a water -dependent use. The only utility provided by the deck is as a viewing platform. Because of how narrow the lot is, and because of the existing trees and existing nonconforming structure (Bunkhouse), moving the deck outside of the actual flood plain would not serve the intended purpose. It is designed without rails or stairs as a platform only, placed on the ground. Therefore, under this criteria [sic], it would not block water flows and so it has an insignificant effect on flood waters outside of the Floodway. This criteria [sic] is met." The Hearings Officer finds the applicant's argument is not persuasive. In the first place, I find inclusion of "decks" in the "landscaping" definition means only that when the term "landscaping" is used in Title 18 it may include decks. in addition, I find decks clearly fall within the definition of "structure" in Section 18.04.030 — i.e., "something constructed or built having a fixed base on, or fixed connection to, the ground or another structure." Photographs of the decks included in the record (e.g., Exhibits I and JJ to the applicant's burden of proof) clearly show the decks have a fixed base on and are connected to the ground through attachment to buried posts. Finally, the applicant has not identified, nor have I found, any provision in Title 18 supporting the applicant's assertion that the FP Zone allows outright "water -dependent uses." For the foregoing reasons, the Hearings Officer finds the free-standing decks fall within the conditional use of "nonresidential structures" under Section 18.96.040(1). I also find the decks fall within the conditional use of "recreational uses requiring only structures having an insignificant effect on flood waters outside the floodway" under Section 18.96.040(G) because they are used for recreation and have a very low profile so would not have any effect on flood waters. Accordingly, I find the free-standing decks are subject to the applicable conditional use approval criteria in the FP Zone and in Chapter 18.128. Compliance with those criteria is discussed in the findings below. ' The Hearings Officer notes the definition of "walkway" in Section 18.04.030 doesn't appear to cover the walkways on the subject property because they are not built over or floating on water, and don't provide access to the dock. Therefore, I find the applicant's walkways appear not to be regulated by Title 18. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 14 of 62 Garage. The garage also dd not exist prior pror to 1 988. Therefore, the Hearings Officer finds it is a not a lawful nonconforming use. The Hearings Officer finds the garage clearly constitutes a "structure." The record indicates the garage is used to store the applicant's pontoon boat and trailer as well as other equipment r&ated to the applicant's use and maintenance of the subject property. Therefore, | find the garage is a "nonresidential structure," and a "recreational use requiring only structures having an insignificant effect on flood waters outside the f|ondvvay" because it is located above the BFE. As such, the garage is a conditional use in the FP Zone and is subject to the applicabie conditional use approval criteria in the FP Zone and in Chapter 18.128.Compliance with those criteria indiscussed inthe findings below. Bunkhouse. The record indicates the ohginal bathhouse was constructed in 1976. As discussed in detail in the findings beow under Section 18.120.010' the Hearings Officer has found the bathhouse was illegal when it was constructed. Therefore, | find it was not a nonconforming use and its conversion to the bunkhouse was not a lawful expansion or alteration to a nonconforming use. The quasbon, then, is whether the bunkhouse can be approved as a conditional use /n the FP Zone even though it may not have been lawfully established. The Hearings Officer finds the circumstances presented by the applicant's request to make the bunkhouse lawful are similar to those In Morris v. Clackamas County, 27 Or LUBA 438 (1904), In that case, the applicants placed a manufactured home on their property in violation of its zoning. The zone later was amended to permit a manufactured home as a conditional use, and the applicants requested and obtained conditional use approval for the manufactured home. The zone was again amended in a manner that allowed residential use in limited circumstances not applicable to the applicants' manufactured home. The applicants requested verification of the manufactured home as a nonconforming use, and the hearings officer denied their request, reasoning that the county's issuance of a conditional use permit made the manufactured home "lawfully located'' on the pnoperty, subject only to the conditions of approval attached to the conditional use permit. Both the Board of County Commissioners (board) and LUBA affirmed the hearings officer's decision. In the subject appflcation, the Hearings Officer has found the bathhouse was iUegai when it was constructed in 1976. However, with the adoption of the FP Zone provisions in 1988, the bathhouse could have become aoVndiUono| use on the subject property, and the applicant is now seeking conditional use approval for the bunkhouse. Therefore, | find that if the bunkhouse can satisfy the applicable conditional use approval criteria, it can be approved as a conditional use and would not be a nonconforming use. The Hearings Officer finds the bunkhouse clearly falls within the definition of "structure" in Section 18.04.030. As discussed above, | have found the bunkhouse is not a dwelling and therefore is a "nonresidential structure." | find it also is a "recreational use requiring only structures having an insignificant effect on flood waters outside the floodway" because it was established to, and does, support the recreational use of the pnoperty, and it is located outside the surveyed flood plain so is very unlikely to affect flood waters. For these reasons, | find the bunkhouse is subject to the conditional use approval criteria in the FP Zone and in Chapter 18.128. Comptiance with those criteria is discussed in the findings below. J. A boat dock or pier, either individual or connnmunity, on private property which lies in the foflowing areas: Dreifuss, File Nos 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 15 of 62 1. On the Deschutes River between river miles 226.4 and 224.5. This area is identified in the Scenic Waterway Management Plan as the Wickiup River Community Area; 2. On the Deschutes River between river miles 217.5 and 216.5. This area is identified in the Scenic Waterway Management Plan as the Pringle Falls River Community Area; and 3. On the Deschutes River between river miles 207 and 192. This area is identified in the Scenic Waterway Management Plan as River Community Areas and Recreational River Area respectively. FINDINGS: The record indicates the stretch of the Deschutes River adjacent to the subject property is at or near river mile 194.5, and therefore it falls within an area of the river approved for docks under Paragraph (J)(3) of this section. As shown in photographs included in the record (e.g., Hearing Exhibits D and F to the applicant's burden of proof), the dock includes two connected parts — a deck or landing platform fixed to the ground, and a dock extending out over the river and supported by pilings in the bed and banks of the river.' As discussed in the Findings of Fact above, the existing dock was not present in 1988 when the county's flood plain regulations took effect or in 1989 when the county's fill -and -removal regulations took effect. In addition, the aforementioned 2008 administrative decision (NCU-08-1) found the deck built by the applicant's predecessor was not a nonconforming use because it was abandoned in 1987.9 For these reasons, the Hearings Officer finds the dock is not a nonconforming use. As discussed in the findings below, the Hearings Officer has found the dock can qualify as a "community dock" under Paragraph (J) of this section. Therefore, the Hearings Officer finds the dock is subject to the conditional use approval criteria in the FP Zone and in Chapter 18.128, compliance with which is addressed in the findings below. For the foregoing reasons, the Hearings Officer finds the applicant's previous placement of gravel on the driveway and rocks on the riprap constitute lawful maintenance of nonconforming uses. I find the dock, free-standing decks, wellhouse, garage and bunkhouse are conditional uses in the FP Zone subject to the applicable conditional use approval criteria addressed in the findings below. d. Section 18.96.060, Limitations on Conditional Uses The following limitations shall apply to all uses allowed by DCC 18.96.040: A. No new construction of a dwelling (including manufactured housing), accessory structure or farm use structure shall be allowed in the floodway of any river or stream except for 8 The terms "dock" and "pier" are not defined in Title 18. Webster's New World Dictionary and Thesaurus, Second Edition, defines these terms as "a structure built out over the water and supported by pillars." The administrative decision found the old pilings on which the original deck was built did constitute a lawful nonconforming use. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 16 of 62 replacement in conformance with the applicable provisions of DCC 18.96 of a dwelling lawfully in existence as of the effective date of Ordinance 88 030. B. No new construction of a dwelling (including manufactured housing), accessory structure or farm use structure shall be located in the flood plain unless it can be demonstrated by the applicant that no alternative exists on the subject property which would allow the structure to be placed outside of the flood plain. C. No subdivision or partition shall be allowed which creates the potential for additional residential dwellings in the flood plain. D. All necessary federal, state and local government agency permits shall be obtained. FINDINGS: The Hearings Officer finds the criteria in Paragraphs (A), (B), and (C) of this section are not applicable because the dock, free-standing decks, wellhouse, garage and bunkhouse are not dwellings or a subdivision or partition. I find Paragraph (D) is applicable to the dock and decks because of their location within the flood plain and wetlands. Therefore, I find that if the dock or free-standing decks are approved by the board on appeal, the applicant should be required as a condition of approval to obtain any all necessary federal and state agency and local government permits and approvals (e.g., from ODFW, DSL, USFS, the Corps, etc.) for the applicant's activities in the flood plain and wetlands, or to provide to the Planning Division written documentation from these entities that no such permits or approvals are required. e. Section 18.96.080, Criteria to Evaluate Conditional Uses A. A conditional use permit in a Flood Plain Zone shall not be approved unless all standards established by the Federal Emergency Management Agency and DCC Title 18 are addressed and findings are made by the Hearings Body or Planning Director that each of the standards and criteria are satisfied. FINDINGS: The Hearings Officer finds that compliance with the applicable provisions of the FP Zone will assure compliance with FEMA standards because such standards are implemented through the FP Zone requirements. C. A conditional use permit shall be based upon findings which relate to the property and existing and proposed structure(s). They shall not pertain to the property owner, inhabitants, economic or financial circumstances. FINDINGS: The Hearings Officer finds this criterion is satisfied because this decision is based upon findings that relate to the property and existing and proposed structure(s) and not to the property owner, inhabitants, economic or financial circumstances. D. All structures in the flood plain shall meet the following standards. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 17 of 62 FINDINGS: The Hearings Officer has found the dock and free-standing decks are located within the surveyed flood plain and constitute "structures" for purposes of the FP Zone provisions. The applicant argues the dock is not a "structure." I disagree. I have found the dock falls within the definition of "structure" in Section 18.04.030 because it was built or constructed with a fixed base on and a fixed connection to the ground — i.e., it is connected to posts buried in the ground and pilings buried in the riverbank. Therefore, I find both the dock and free-standing decks are subject to the standards in this paragraph. 1. Anchoring. a. All new construction and substantial improvements shall be anchored to prevent flotation, collapse or lateral movement of the structure. FINDINGS: The record includes numerous photos of the dock and decks during and after construction (e.g., Exhibits D and F to the applicant's burden of proof). The Hearings Officer finds from these photos that both the decks and dock are anchored by being fixed to the ground through connection to posts buried in the ground and pilings buried in the riverbank, respectively. I find these anchoring methods are sufficient to prevent the flotation, collapse or lateral movement of the decks and dock. b. All manufactured homes must be anchored to prevent flotation, collapse or lateral movement, and shall be installed using methods and practices that minimize flood damage. Anchoring methods may include, but are not limited to, use of over the top or frame ties to ground anchors. FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant does not propose a manufactured home. 2. Construction Materials and Methods. a. All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage. FINDINGS: The applicant's burden of proof states, and based on photos in the record and the Hearings Officer's site visit observations I agree, that the free-standing decks and the dock are constructed of treated wood and/or composite materials designed to resist water and flood damage. The dock and decks do not contain electrical, heating, or other service facilities. Therefore, I find the dock and free-standing decks satisfy this standard. b. All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 18 of 62 FINDINGS: The Hearings Officer finds the "methods and practices that minimize flood damage" required by this standard contemplate proper anchoring to prevent these structures from floating downstream and damaging other property during a flood. As discussed in the findings above, I have found the dock and free-standing decks are adequately anchored. Therefore, I find these structures satisfy the standard in this paragraph. c. Electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities shall be designed and/or otherwise elevated or located so as to prevent water from entering or accumulating within the components during conditions of flooding. FINDINGS: The Hearings Officer finds this standard is not applicable because the dock and decks do not contain any electrical, heating, or other service facilities. 3. Utilities. a. All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system. b. New and replacement sanitary systems shall be designed to minimize or eliminate infiltration of floodwaters into the system and discharge from the system into flood waters. c. On site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. FINDINGS: The Hearings Officer finds the standards in Paragraphs (a) and (b) are not applicable because the applicant does not propose new or replacement water or sanitary systems. I have found the existing septic system is not properly before me in these applications. 4. Below -grade crawlspace is allowed subject to the standards in FEMA Technical Bulletin 11-01. FINDINGS: The Hearings Officer finds this standard is not applicable because the applicant does not propose any below -grade crawlspaces. G. Specific Standards. In the Flood Plain Zone, the following requirements must be met: 1. Residential Construction. * FINDINGS: Section 18.04.030 includes the following relevant definitions: "Residential" means any dwelling unit or group of units built or used for human occupancy. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 19 of 62 "Dwelling unit" means one or more rooms in a building designed for occupancy by one family and having not more than one cooking area or kitchen. The Hearings Officer finds the dock and decks are not "residential construction" because they are not a dwelling unit or a part thereof. As discussed in the findings above, I have found the bunkhouse is not a dwelling. I also find the garage is not a dwelling. Therefore, 1 find the dock, decks, bunkhouse and garage are not subject to the standards for "residential construction." 2. Nonresidential Construction. New construction and substantial improvement of any commercial, industrial or other nonresidential structure shall either have the lowest floor, including basement, elevated at least one foot above the level of the base flood elevation, or, together with attendant utility and sanitary facilities, shall: * * * FINDINGS: The Hearings Officer finds the dock and free-standing decks are "nonresidential structures." However, I find the standards in this paragraph do not apply to the dock and decks because Paragraph (G)(4) of this section separately addresses "docks, piers and walkways," and the standards for nonresidential structures address components like "lowest floor" and "basement" that are not characteristic of docks and decks. The staff report notes that FEMA's website10 provides guidance and specific standards for accessory structures as defined and described in FEMA's rules.11 These standards include the following: "These accessory structures must be low value and not be used for human habitation. They must also meet the following requirements: Accessory structures shall be designed to have low flood damage potential. Accessory structures shall be constructed and placed on the building site so as to offer the minimum resistance to the flow of floodwaters. Accessory structures shall be firmly anchored to prevent flotation which may result in damage to other structures. Service facilities such as electrical and heating equipment shall be elevated or floodproofed. Accessory structures shall have openings as required under 60.3(c)(5). 10The staff report states the FEMA website address is: https://www.fema.gov/accessory-structures. 11 The FEMA guidelines refer to accessory structures as appurtenant structures and indicate an accessory structure is a structure which is on the same parcel of property as a principal structure and of which the use is incidental to the use of the principal structure. For example, a residential structure may have a detached garage or storage shed for garden tools as accessory structures. Other examples of accessory structures include gazebos, picnic pavilions, boathouses, small pole barns, storage sheds, and similar buildings. The staff report states that National Flood Insurance Program (NFIP) regulations for new construction generally apply to new and substantially improved accessory structures. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 20 of 62 (5) Require, for all new construction and substantial improvements, that fully enclosed areas below the lowest floor that are usable solely for parking of vehicles, building access or storage in an area other than a basement and which are subject to flooding shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or meet or exceed the following minimum criteria: A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided. The bottom of all openings shall be no higher than one foot above grade. Openings may be equipped with screens, louvers, valves, or other coverings or devices provided that they permit the automatic entry and exit of floodwaters. Floodway encroachment provision of 60.3 (d) (3) must be met." Assuming for purposes of discussion that these FEMA standards are relevant to the applicant's proposal, the Hearings Officer finds the dock and free-standing decks satisfy them. The dock and decks are low value structures not intended for human habitation. They are constructed of water- and flood -resistant materials and have no electrical or heating facilities. They do not have fully enclosed areas below the lowest floor. No floodway encroachments are proposed. Finally, 1 have found the dock and decks are anchored so as to prevent flotation, collapse or lateral movement of the structure. The record indicates the bunkhouse and garage are located above the BFE and therefore do not have a "lowest floor" or "basement" that must be elevated above the BFE. Therefore, the Hearings Officer finds the standards for nonresidential construction in the FP Zone do not apply to the bunkhouse and garage. 4. Docks, Piers and Walkways. a. No individual boat dock or pier shall be allowed on any lot with less than 200 feet of river frontage. FINDINGS: Section 18.04.030 defines "boat dock or pier, individual" as: * * * a personal use boating structure that is built over or floats upon the water of a lake, river or stream, and that serves one property owner for mooring boats or as a landing place for marine transport, and that has a surface area of 160 square feet or Tess. The applicant requests approval of the dock as a "community dock." However, the applicant also argues the subject property is eligible for an individual dock for the following reasons: "The individual dock criteria under DCC 18.96.080. G.4.a reauires [sic] 200 feet of river footage. The Subiect Property has waterfront of 196.82 feet. See Shoreline Survey, Exhibit J. Applicant believes that this substantially complies with this criterion, and so it has been satisfied. Additionally, under DCC 18.96.080. G. 4. c, individual docks must not exceed 160 square feet, and cannot extend into the water more than 20 feet. Here, the dock is 255.46 square feet but only extends Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU 1 115-NUV / 116 -LM Page 21 of 62 into the water approximately 8 feet. As already discussed, the dock's size is a function of its utility and use to dock pontoon boats, and although the total surface area is larger than the individual dock criteria, the impact to the free- flowing waterway is less significant and public safety is enhanced. Therefore, we believe the intent of this criteria to be satisfied and the dock may be approved as an individual dock. " (Emphasis added.) The Hearings Officer finds the applicant's arguments are not persuasive. First, the dock clearly exceeds the maximum size for an individual dock. In addition, as the applicant acknowledges, its "Shoreline Survey" shows the subject property has less than the minimum 200 feet of river frontage. The applicant has not identified, nor have I found, any provision in the FP Zone allowing approval of an individual dock based on "substantial compliance" with the minimum frontage requirement. I find the appropriate measurement of a lot's river frontage is not its cumulative length measured by every "nook and cranny" of the irregular shoreline as depicted on the applicant's "Shoreline Survey." If that were the case, a property's frontage on the Deschutes River, the level of which is highly regulated and has dramatic seasonal variations, could be different depending on the time of measurement. I find it unlikely the drafters of Title 18 intended river frontage to be such a variable measurement. For these reasons, I find river frontage should be measured by means of a recognized and objective demarcation — i.e., the ordinary high water mark (OHWM), defined in Section 18.04.030 as "the highest level on the bank of shore of a lake, river or stream to which the water ordinarily recedes annually in season." The applicant's submitted site plan depicts the OHWM on the subject property and shows it is approximately 175 feet long. b. No community boat dock or pier shall be allowed on any lot with less than 100 feet of river frontage. FINDINGS: Section 18.04.030 defines "boat dock or pier, community" as: * * * a personal use boating structure that is built over or floats upon the water of a lake, river or stream that serves more than one property owner for the mooring of boats or as a landing place for marine transport, and that has a surface area of 320 square feet or less. The subject property has more than 100 feet of frontage on the Deschutes River, measured at the OHWM, and the dock is less than 320 square feet in size.12 Therefore, the dock meets the locational and dimensional requirements in this section. With respect to whether the dock serves more than one property owner, the applicant's burden of proof states in relevant part: "Applicant proposes to share the community dock with Gordon & Linda Ferris, adjacent neighbors to the Subject Property. The Ferrises have an existing, floating dock that is in disrepair. The Ferrises would like to use the Applicant's dock as a community dock instead of going to the significant expense of repairing their individual dock. Applicant is prepared to execute a reciprocal use and access agreement for this shared use." 12The submitted site plan shows the dock is 10.6 feet deep measured perpendicular to the river, and 24.1 feet long measured parallel to the river. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 22 of 62 The Hearings Officer finds the applicant's dock may qualify as a community dock if the existing dock on the Ferris property, which received conditional use approval in 2007 (CU -07-66), is removed.13 The applicant's July 15, 2015 supplemental burden of proof states the Ferrises would like to use the applicant's dock as a community dock "rather than going to the significant expense of repairing their individual dock." However, the record does not include any correspondence from, or agreement with, the Ferrises stating they will remove their dock and share the applicant's dock. The staff report notes there is nothing in Title 18 that prohibits a property with an existing individual dock from also being a "member" of a community dock. However, the staff report states, and the Hearings Officer agrees, that interpreting Title 18 to allow such "membership" would not be consistent with the clear intent reflected in the definition of community dock to limit their density to not more than one dock per 200 feet of river frontage. For these reasons, I find the applicant's dock will qualify as a "community dock" only if another property owner without an individual dock shares the applicant's dock. I find compliance with this criterion can be assured through imposition of conditions of approval requiring that within a specified period of time: (1) the Ferris dock is removed; (2) the applicant records a document or documents that provide access to the applicant's dock for the Ferrises and provide for maintenance of a "community dock" on the subject property; and (3) the applicant removes the dock on the subject property if the requirements under paragraph (1) are not satisfied within the specified time. c. No individual boat dock or pier shall be more than 20 feet in length or more than eight feet in width. The total surface area shall not exceed 160 square feet. FINDINGS: As discussed in the findings above, the Hearings Officer has found the subject property is not eligible for an individual boat dock. d. No community boat dock or pier shall be more than 20 feet in length. The total surface area shall not exceed 320 square feet. FINDINGS: The applicant's submitted site plan shows the dock is 10.6 feet deep measured perpendicular to the river, and 24.1 feet long measured parallel to the river, for a surface area of 255.46 square feet. Therefore, the Hearings Officer finds the dock satisfies this criterion. e. A boat dock or pier shall not extend into or over the water more than 20 feet as measured from the ordinary high water mark (OHM), or five percent of the distance between the ordinary low water mark (OLM) on each river or stream bank measured at right angles to the shoreline, whichever is less, unless it can be shown that a greater extension: i. Is necessary to allow access to the OHM; ii. Will not increase flood hazard; and t3 An aerial photo of the Ferris deck is included in the record as Hearing Exhibit 3. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 23 of 62 iii. Will not cause the deterioration or destruction of marine life or wildlife habitat. When the lines of ordinary high or low water cannot be determined by survey or inspection, then such lines shall be determined by a registered professional engineer using the annual mean high or low water for the preceding year, using data from the State of Oregon Watermaster. (Emphasis added.) FINDINGS: The Hearings Officer finds this criterion is intended to minimize encroachment of a dock over the river by requiring a "whichever is less" calculation. The applicant's submitted site plan shows the dock extends between five and twelve feet beyond the OHWM measured at a right angle. However, neither the site plan nor the applicant's burden of proof shows the calculations for the other prong of this encroachment limitation — i.e., the location of and distance between the ordinary low water mark (OLWM) on both sides of the river. The applicant's burden of proof states in relevant part: "We have consulted with Registered Professional Engineer, Timothy James Weishaupt, who mapped the Site Plan, Exhibit A. He stated that he is unaware of a documented OLM for this stretch of river, particularly since the Deschutes River is a highly -regulated river in terms of flow. Deschutes County planning staff suggested we measure the river at its current level; however, this provides no objective standard with which to judge the community dock's existence by. Therefore, because the dock meets the objective standard of not extending more than 20 feet from the OHM, this criteria [sicj has been met." The staff report states, and the Hearings Officer agrees, that the plain language of Paragraph (e)(iii) of this section requires the applicant to submit an OLWM determination made by a licensed professional engineer using data from the State of Oregon Watermaster. The applicant did not do so and therefore did not demonstrate compliance with this standard. The staff report notes available aerial photography appears to show that the location of the OLWM for the adjacent stretch of the Deschutes River is located near the OHWM on the south side of the river, and near the wetland fringe on the north side of the river where the subject property located. Based on this photography, staff estimates the distance between the OLWM on each side of the river measured at right angles from bank to bank is approximately 130 feet, and therefore the dock's projection over the water would be limited under the "whichever is less" standard to approximately 6.5 feet. The site plan shows part of the dock exceeds that distance. Assuming for purposes of discussion that the deck exceeds the maximum encroachment over the river based on the OLWM calculations, the applicant must demonstrate compliance with all three criteria for an exception. Each of those criteria is discussed in the findings below. 1. Is Necessary To Allow Access to the OHWM. As discussed above, the applicant's submitted site plan shows the OHWM on the subject property is located beneath the dock, and the dock projects approximately five to twelve feet beyond the OHWM over the river. While the dock could have been constructed not to extend beyond the OHWM, such design would not have allowed the structure to function as a dock because it would not have provided mooring for Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 24 of 62 boats or a landing place for marine transport. Therefore, the Hearings Officer finds the dock satisfies this criterion for an exception. 2. Will Not Increase Flood Hazard. As discussed elsewhere in this decision, the Hearings Officer has found the dock is adequately anchored by attachment to buried posts and pilings so that it will not become detached and create a hazard to downstream properties. The applicant has submitted a "no -rise certification" provided by a registered professional engineer stating the dock would remain in place during a flood event. For these reasons, I find the dock satisfies this criterion for an exception. 3. Will Not Cause the Deterioration or Destruction of Marine Life or Wildlife Habitat. The record includes comments from the Corps, USFS and ODFW expressing concern about possible impacts to fish and wildlife habitat from the applicant's construction and improvements in the bed and banks of the river and in associated wetlands including the dock. ODFW suggested wetlands and riparian areas on the subject property are habitat for the Oregon Spotted Frog which is an endangered species. However, in response the applicant submitted a letter from Jay Bowerman, Principal Researcher with the Sunriver Nature Center, included in the record as Exhibit Z to the applicant's burden of proof, stating that his on-site examination of the subject property produced no critical habitat for the frog, and that in his opinion the applicant's activity in wetlands on the subject property would not impact critical habitat. Mr. Bowerman's opinion was not rebutted by ODFW or any other agency. Therefore, the Hearings Officer finds the applicant's proposal satisfies this criterion for an exception. f. Individual boat docks and piers shall have a minimum five foot setback from adjoining property boundaries projected over the water surface. FINDINGS: The Hearings Officer has found the subject property is not eligible for an individual boat dock. g. Dock, pier and walkway structures shall not be covered or enclosed. FINDINGS: The Hearings Officer finds this criterion is not applicable because the dock is not covered or enclosed. h. All materials used in dock, pier or walkway construction must be in compliance with all DEQ and EPA regulations. FINDINGS: The record does not include evidence of what, if any, DEQ or EPA (Environmental Protection Agency) regulations exist regarding materials used in dock, pier or walkway construction. The Hearings Officer finds that compliance with this criterion can be assured by imposition of a condition of approval requiring the applicant to submit to the Planning Division written documentation from a registered professional engineer that the dock materials comply with any and all applicable DEQ and EPA regulations for dock or pier construction materials. i. Docks, piers and walkways shall use either pilings or Styrofoam floats if such floats are fully enclosed and sealed. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 25 of 62 FINDINGS: The Hearings Officer finds the dock satisfies this criterion because it is constructed with pilings. J• Docks, piers and walkways shall not impede water movement or cause deposition on waterway beds. FINDINGS: Based on photographs in the record and the Hearings Officer's site visit observations, I find the dock and pilings have a very low profile above the water. For this reason, I find the dock and pilings would not impede water movement or cause deposition on waterway beds. In its comments on the applicant's proposal, the USFS stated the applicant must obtain a free-flow analysis from the USFS under the federal Wild and Scenic Rivers Act.14 find that if the board approves the dock on appeal, the applicant should be required as a condition of approval to obtain and provide to the Planning Division such an analysis, or submit to the Planning Division written documentation from the USFS that such analysis is not required for the dock. k. Docks, piers and walkways containing concrete or wood preservatives shall be fully cured or dried prior to placement in the water. FINDINGS: The record indicates the dock does not contain concrete but does include treated wood posts and potentially other structural components. The applicant did not address this criterion with respect to the posts. The Hearings Officer finds compliance with this criterion can be assured through imposition of a condition of approval requiring the applicant to submit to the Planning Division written documentation that the treated wood deck components were fully cured or dried prior to their placement in the river. No walkway shall be more than four feet in width. The length of the walkway shall be no more than the minimum required to allow access to a dock. m. Walkways shall include at least one handrail if the structure is elevated 30 inches or more from ground level. FINDINGS: The Hearings Officer finds these standards are not applicable because I have found the dock is not a "walkway" as defined in Section 18.04.030. n. Alt docks, piers and walkways shall meet the test of noninterference with navigation. FINDINGS: As discussed in the findings above, the dock projects only approximately five to twelve feet over the river. For this reason, and based on the Hearings Officer' site visit observations and the submitted site plan and photographs of the subject property and vicinity, I find the dock will not interfere with navigation. 'G The Hearings Officer finds it is not clear from this record whether the stretch of the Deschutes River adjacent to the subject property is a designated federal wild and scenic river. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 26 of 62 H. Floodways. In floodways the following provisions shall apply: 1. Encroachments, including fill and removal, replacement of a dwelling lawfully in existence on the effective date of Ordinance 88 030 and other development are prohibited unless certification by a registered professional engineer is provided demonstrating that the proposed encroachments will not result in any increase in flood levels during a base flood discharge. FINDINGS: The dock encroaches into the floodway. The applicant submitted a certification by a registered professional engineer, included in the record as Exhibit V to the applicant's burden of proof, demonstrating the dock does not create an encroachment that will result in any increase in flood levels during a base flood discharge, therefore satisfying this criterion. 2. The applicant must demonstrate that all necessary federal, state and local government agency permits have been or can be obtained and that all other applicable sections of DCC Title 18 have been satisfied. FINDINGS: All applicable sections of Title 18 are addressed in this decision. The Hearings Officer finds that if the dock is approved by the board on appeal, the applicant should be required as a condition of approval to submit to the Planning Division written documentation from federal and state agencies and local governments that all necessary permits and approvals have been or can be obtained, or that no permit or approval is required. For the foregoing reasons, the Hearings Officer finds the dock can satisfy all applicable requirements for a community dock with imposition of the conditions of approval described in the findings above. e. Section 18.96.085, Elevation Certification Elevation of all new construction, including replacement and substantial improvements, relative to mean sea level of the lowest floor shall be documented before the framing inspection with a survey certified by a State of Oregon registered professional engineer or land surveyor. FINDINGS: The staff report states the FEMA elevation certificate form provides: "This information is being collected for the primary purpose of estimating the risk premium rates necessary to provide flood insurance for new or substantially improved structures in designated Special Flood Hazard Areas." 15 However, staff notes the dock and free-standing decks are not eligible for flood insurance as specified in FEMA's publication entitled National Flood Insurance Program, Answers to 15 The staff report states the FEMA form can be viewed on the FEMA website at the following address: https://www.fema.gov/media-library/assets/documents/160. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 27 of 62 Questions About the NFIP.16 The staff report states that for this reason, the county has not previously required elevation certificates for structures that don't have two or more outside rigid walls and a fully secured roof. Therefore, the Hearings Officer finds this criterion does not apply to the dock and free-standing decks in the flood plain. And I find it does not apply to the bunkhouse and garage because, as discussed in the findings above, I have found they are located outside the flood plain above the BFE. f. Section 18.96.090, Yard and Setback Requirements In an FP Zone, the following yard and setback requirements shall be maintained: A. The front setback shall be a minimum of 20 feet from a property line fronting on a local street, 30 feet from a property line fronting on a collector and 50 feet from an arterial. B. There shall be a minimum side yard of 10 feet for all uses. C. The minimum rear yard shall be 20 feet. D. The setback from a north lot line shall meet the solar setback requirements in DCC 18.116.180. E. The minimum yard setback for a nonfarm use from the property line adjacent to a farm use not owned by the applicant shall be 100 feet. F. 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 the County under DCC 15.04 shall be met. FINDINGS: All structures on the property, including the dock and free-standing decks, are located over 20 feet from Satterlee Way, a rural local street, and over 10 feet from the side yards. The Hearings Officer finds the solar setback requirements in Section 18.116.180 do not apply because the north property lot line abuts the river which is not a potential location of a structure that would cast a shadow.17 The rear property line of the subject property is the Deschutes River. The record does not indicate that the adjacent stretch of the river is considered navigable so that the state owns its 16The staff report states that publication can be found at http://www.fema.gov/media-library- data/20130726-1438-20490-0889/f084_atq_11aug11.txt, and provides in relevant part: "28. What types of property may be insured against flood loss? Insurance may be written on any building eligible for coverage with two or more outside rigid walls and a fully secured roof that is affixed to a permanent site. Buildings must resist flotation, collapse, and lateral movement. The structure must be located in a community that participates in the NFIP." 17 Section 18.04.030 defines "potential structure" for purpose of solar access protection as any structure or building that could be built as a permitted use in a particular location under existing development standards under the existing county comprehensive plan. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 28 of 62 bed and banks. For that reason, the Hearings Officer agrees with staff that the rear setback for the subject property would be measured from the centerline of the river. The record indicates all structures on the property are over 20 feet from the centerline of the river. However, the staff report states, and I concur, that the specific locational/encroachment standards for the dock relative to the OHWM and OLWM, discussed in the findings above, supersede the general 20 - foot rear yard setback under these criteria. As discussed in those findings, I have found the applicant has not demonstrated the dock meets the exceptions for exceeding the maximum river encroachment standard. g. Section 18.96.100, Stream Setback To permit better light, air, vision, stream and pollution control, to protect fish and wildlife areas and to preserve the natural scenic amenities along streams and lakes, the following setbacks shall apply: A. All sewage disposal installations such as septic tanks or septic drain fields shall be setback from the ordinary high water mark along all streams or lakes a minimum of 100 feet, measured at right angles to the ordinary high water mark. In those cases where practical difficulties preclude the location of the facilities at a distance of 100 feet, and the County Sanitarian finds that a closer location will not endanger public health or safety, a setback exception may be permitted to locate these facilities closer to the stream or lake, but in no case closer than 25 feet. FINDINGS: The Hearings Officer finds this criterion is not applicable because I have found I lack authority to consider the status of the existing on-site septic system as a nonconforming use. Moreover, the applicant is not proposing to site a new system. B. All structures, buildings or similar permanent fixtures shall be set back from the ordinary high water mark along all streams or lakes a minimum of 100 feet measured at right angles from the ordinary high water mark. FINDINGS: The submitted site plan depicts the location of the OHWM and shows the dock, free-standing decks, and a portion of the bunkhouse are located within the 100 -foot setback from the OHWM. Dock. The Hearings Officer has found the specific locational standards for the dock relative to the OHWM and OLWM supersede the general 100 -foot setback under these criteria. And as discussed in those findings, 1 have found the applicant has demonstrated the dock complies with the exception criteria for exceeding the maximum encroachment over the river under the specific dock standards. Decks. With respect to the location of the free-standing decks within the 100 -foot river setback, the applicant's burden of proof states in relevant part: "The landscape platform deck qualifies as 'landscaping' under ,�C.. 8.04.0 and therefore is not subject to setback requirements. DCC 18.04.030 provides: Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 29 of 62 `Landscaping' means trees, grass, bushes, shrubs, flowers, and garden areas, and incidental arrangements of fountains, patios, decks, street furniture and ornamental concrete or stonework and artificial plants, bushes, or flowers. (Emphasis added.) in this case, the landscape deck was added to highlight the landscaped areas of the subject property. Special care was taken to preserve existing vegetation, including large trees, by improving around the trees. As evident by the Landscaping Photos, Exhibit N, the area around the landscaping deck has been further landscaped, including adding shrubs and bark, to improve water and soil retention. See also Landscape Deck, Exhibit 1. In the alternative, if Deschutes County decides that the landscaping deck can only qualify as a structure subject to a 100 foot setback and not as landscaping as defined by the code, we ask that Deschutes County grant an exception to the setback requirement. The purpose of the landscape deck is to passively view and enjoy the Deschutes River, as evident by the introduction of a bench for viewing and relaxation. The landscaping deck was specifically laid out to maintain the existing vegetation and trees. Due to the amount of vegetative screening, compliance with the 100 foot setback requirement would extinguish the utility of the landscape deck because the view of the Deschutes River would be obscured. This would greatly restrict the use and value of the property because the water frontage could not be viewed and enjoyed, considering Applicant's care to maintain the natural setting and existing vegetation. Thus, site-specific conditions warrant this exception. The policy implication of denying an exception would be to encourage the removal and thinning of existing vegetation, including established trees, in the FP Zone and at the water's edge. Applicant chose to leave existing vegetation and designed the landscape deck to maximize preservation of natural resources, including the view of the river and the existing native trees. Therefore, a setback exception should be granted and this criterion may be deemed satisfied." (Underscored emphasis in original.) The Hearings Officer has found the inclusion of "decks" in the definition of "landscaping" does not mean that decks are not also "structures" that are subject to provisions such as the river setback in this section. Exceptions to the 100 -foot river setback are authorized under Section 18.120.030(D) and (E). However these exceptions expressly apply only to new dwellings and additions thereto. As discussed above, the Hearings Officer has found the bunkhouse is not a dwelling and the free- standing decks are not a part of the bunkhouse. In addition, the Hearings Officer finds the free- standing decks are not "architectural features" allowed within the required setback under Paragraph (B) of Section 18.120.030. That is because the illustrative list includes features that are part of, or attached to, a dwelling - e.g., cornices, eaves, gutters, chimneys, steps, and porches - and not separate, free-standing features such as decks. Finally, the applicant has not identified, nor has the Hearings Officer found, any provision in FP Zone or elsewhere in Title 18 that would permit the free-standing decks to be located within the Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 30 of 62 100 -foot river setback simply because they are "river -dependent" — i.e., facilitating river viewing. And as the staff report correctly notes, the purpose of the 100 -foot river setback is to prevent construction of structures — other than docks and piers — in close proximity to the river and potentially within riparian areas and wetlands. Bunkhouse. The submitted site plan shows approximately the northern half of the bunkhouse is located within 100 feet of the river — including both the original bathhouse and a portion of the applicant's subsequent addition to the bathhouse to create the bunkhouse. The applicant argues the bathhouse is a nonconforming use and therefore its expansion/alteration need not comply with the 100 -foot river setback. However, as discussed elsewhere in this decision, the Hearings Officer has found the bathhouse was not a nonconforming use because it was illegal when it was established, and because it subsequently became a conditional use with adoption of the FP Zone and its application to the subject property. Based on the above findings, the Hearings Officer finds the bunkhouse encroachment into the 100 -foot river setback can be permitted only through a setback exception. As discussed in the findings above, exceptions to the 100 -foot river setback are authorized under Section 18.120.030(D) and (E). However, these exceptions expressly apply only to new dwellings and additions thereto. The Hearings Officer has found the bunkhouse is not a dwelling, and therefore no river setback exception is available for the bunkhouse. For the foregoing reasons, the Hearings Officer finds I cannot approve the free-standing decks or bunkhouse in their current locations within the 100 -foot river setback because they do not qualify for a river setback exception. h. Section 18.96.110, Dimensional Standards In an FP Zone, the following dimensional standards shall apply: A. Lot Coverage. The main building and accessory buildings located on any building site or lot shall not cover in excess of 30 percent of the total lot area. B. Building Height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. FINDINGS: The Hearings Officer finds the lot -coverage criterion in Paragraph (A) applies to the "buildings" on the property, defined in Section 18.04.030 as "a structure built for the support, shelter or enclosure of persons, animals, chattels or property of any kind." The only buildings on the property are the bunkhouse and garage. I find the combined area of all structures on the subject property does not exceed 30 percent of the subject property's area. 1. Section 18.96.130, Interpretation of FIRM Boundaries The Planning Director shall make interpretations where needed, as to exact location of the boundaries of the areas of special flood hazards (for example, where there appears to be a conflict between a mapped boundary and actual field conditions). Such interpretations shall be processed as a development action pursuant to Chapter 22.16. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 31 of 62 FINDINGS: As discussed in the findings above, incorporated herein, the Hearings Officer has found this provision authorizes the county to determine the location of the flood plain on the subject property based on the applicant's site-specific flood plain survey. That survey shows that only the dock, free-standing decks and a portion of the driveway are located in the flood plain. Based on the foregoing findings and conclusions, the Hearings Officer finds the applicant's proposal does not satisfy all applicable standards in the FP Zone. RR -10 ZONE STANDARDS 2. Chapter 18.60, Rural Residential Zone (RR -10) FINDINGS: The Hearings Officer has found the county is authorized to interpret the FP Zone to apply only to those portions of the subject property located at or below the BFE based on a site- specific flood plain survey. The staff report raises the question of whether and to what extent the RR -10 Zone applies to the subject property because the entire property is zoned FP, which is a base or "primary" zone.18 As discussed in the findings above, in prior decisions the county has found that where, as here, a site-specific survey shows the flood plain is less extensive than the area mapped by FEMA, the provisions of the FP Zone are not applied to uses outside the surveyed flood plain and the provisions of the adjacent zone do apply. However, I have concluded that for purposes of the analysis in this decision, I will consider the entire subject property to be zoned FP. Therefore, I find the provisions of the RR -10 Zone do not apply to the applicant's proposal. LM ZONE STANDARDS 3. 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. The 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. 18 Section 18.12.010 identifies several types of zones, including "primary zones" such as the FP and RR - 10 Zones, and "combining zones" such as the WA and LM Zones. The difference between these zones is that "primary zones" exclusively occupy mapped and designated property, whereas "combining zones" overlay the "primary zones" and apply concurrently with the "primary zones." Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 32. f 62 FINDINGS: The record indicates the entire subject property is located within one-quarter mile of the Deschutes River. Therefore it is within the LM Zone and subject to the standards thereof, 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. c. Section 18.84.040, Uses Permitted Conditionally Uses permitted conditionally in the underlying zone with which the LM Zone is combined shall be permitted as conditional uses in the LM Zone, subject to the provisions in DCC 18.84. FINDINGS; As discussed in the findings above, the Hearings Officer has found the gravel driveway and riprap and the applicant's previous maintenance thereof are nonconforming uses. I also have found all remaining improvements on the subject property — the dock, free-standing decks, bunkhouse and garage qualify as conditional uses in the FP Zone which applied to the subject property in 1988. Therefore, I find these uses also are conditional uses in the LM Zone. d. 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. FINDINGS: The Hearings Officer finds the threshold question under this standard is whether any structures on the subject property or alterations thereto required a building permit. The staff report states, and I agree, that because the well house is less than 200 square feet in size it likely did not require a building permit. I find the 724 -square -foot garage did require a building permit. With respect to the bunkhouse, in his September 21, 2015 comments on the applicant's proposal Deschutes County Building Official Randy Scheid stated the framing required for the bedroom addition to the bunkhouse required a building permit. Therefore, I find the garage and bunkhouse require LM site plan review. e. Section 18.84.080, Design Review Standards 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. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 33 of 62 FINDINGS: The applicant's burden of proof states he retained aII existing tree and shrub cover not required to be removed for construction of the garage, and between the bunkhouse and the river. Based on the Hearings Officer's site visit observations, I find the subject property retains significant screening vegetation between the river and these two structures. The staff report recommends, and I agree, that the applicant should be required as a condition of approval to retain all existing tree and shrub cover screening the garage from the river. 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. FINDINGS: The applicant's burden of proof and attached photographs show both the garage and the bunkhouse are finished in muted earth -toned colors that blend with the surrounding vegetation and landscape, therefore satisfying this criterion. 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 indicates the roofs of the garage and bunkhouse are a muted brown color. The staff report notes the garage door is finished with white materials. However, the Hearings Officer finds that relative to the overall size of the garage, this door does not represent a "large area" such as a roof or side of the building, and therefore is not subject to the limitation in this paragraph. 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 there is no rimrock on the subject property. As discussed above, the Hearings Officer has found the applicant retained significant screening vegetation between the river and the bunkhouse and garage. For these reasons, I find both sfructures have been sited to take advantage of existing vegetation in order to reduce visual impact as seen from the river. 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. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 34 of 62 FINDINGS: The record indicates the tallest structure on the subject property is the garage which is approximately 16 feet in height. Therefore, this criterion is satisfied. 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 the applicant does not proposal any new residential or commercial driveway access to a designated landscape management road. G. New residential 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 applicant's burden of proof states the garage and bunkhouse have minimal exterior lighting, and that the exterior light fixtures are directionally shielded. For these reasons, the Hearings Officer finds the applicant's proposal satisfies this criterion. The staff report recommends, and I agree, that the applicant will be required as a condition of approval to assure all exterior lighting continues to satisfy this criterion. 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 staff report states, and based on the Hearings Officer's site visit observations I agree, that the garage and bunkhouse have adequate on-site screening from Deschutes River that no introduced landscape material is necessary to screen the development, assure compatibility with existing vegetation, reduce glare, direct automobile and pedestrian circulation or enhance the overall appearance of the development. 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 signage on the property. The Hearings Officer finds that to assure compliance with this criterion the applicant will be required as a condition of approval to install any signage in accordance with this criterion. J. A conservation easement as defined in Section 18.04.280 "Conservation Easement" and specified in Section 18.11 6.220 shall be required as a condition of approval for all landscape Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 35 of 62 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 the applicant will be required as a condition of approval to execute and record a conservation easement as required by this criterion. e. Section 18.84.090, Setbacks A. Except as provided in DCC 18.84.090, minimum setbacks shall be those established in the underlying zone with which the LM Zone is combined. 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 right-of-way unless the Planning Director or Hearings Body finds that: 1. A location closer to the designated road would more effectively screen the building from the road; or protect a distant vista; or 2. The depth of the lot makes a 100 -foot setback not feasible; or 3. Buildings on both Tots abutting the subject lot have front yard setbacks of Tess than 100 feet and the adjacent buildings are within 100 feet of the lot line of the subject property, and the depth of the front yard is not less than the average depth of the front yards of the abutting Tots. If the above findings are made, the Planning Director or Hearings Body may approve a Tess restrictive front yard setback which will be appropriate to carry out the purpose of the zone. FINDINGS: Compliance with setbacks applicable in the underlying zones is discussed in the findings for those zones. The subject property does not front on a designated landscape management road, and therefore the setbacks from the road do not apply. 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 Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 36 of 62 considered part of a structure and must conform with the setback requirement. The placement of onsite sewage disposal systems shall be subject to joint review by the Planning Director or Hearings Body and the Deschutes County Environmental Health Division. The placement of such systems shall minimize the impact on the vegetation along the river and shall allow a dwelling to be constructed on the site as far from the stream or lake as possible. Sand filter systems may be required as replacement systems when this will allow a dwelling to be located further from the stream or to meet the 100 -foot setback requirement. FINDINGS: The Hearings Officer has found the existing septic system is not properly before me in these applications. The record indicates the garage is set back at least 100 from the OHWM of the river, therefore satisfying this criterion. As discussed above, the bunkhouse encroaches in the 100 -foot river setback applicable in the FP Zone. I also have found it does not qualify for a river setback exception. Therefore, I find the bunkhouse does not satisfy the setback requirements in the LM Zone. D. Rimrock Setback. New structures (including decks or additions to existing structures) shall be set back 50 feet from the rimrock in an LM Zone. An exception to this setback may be granted pursuant to the provisions of DCC 18.84.090(E). FINDINGS: The Hearings Officer finds this criterion is not applicable because there is no rimrock on the subject property. f. Section 18.84.095, Scenic Waterways Approval of all structures in a State Scenic Waterway shall be conditional upon receipt of approval of the Oregon Department of Parks and Recreation. FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject property is not located in a state scenic waterway. For the foregoing reasons, the Hearings Officer finds the garage satisfies all applicable standards in the LM Zone but the bunkhouse does not. WA ZONE STANDARDS 4. Chapter 18.88, Wildlife Area Combining Zone — WA a. Section 18.88.020, Application of Provisions The provisions of DCC 18.88 shall apply to all areas identified in the Comprehensive Plan as a winter deer range, significant elk habitat, antelope range or deer migration corridor. Unincorporated communities are exempt from the provisions of DCC 18.88. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 37 of 62 FINDINGS: The WA Zone on the subject property is for protection of a deer migration corridor. b. Section 18.88.030, Uses Permitted Outright In a zone with which the WA Zone is combined, the uses permitted outright shall be those permitted outright by the underlying zone. c. Section 18.88.040, Uses Permitted Conditionally A. Except as provided in DCC 18.88.040(B), in a zone with which the WA Zone is combined, the conditional uses permitted shall be those permitted conditionally by the underlying zone subject to the provisions of the Comprehensive Plan, DCC 18.128 and other applicable sections of this title. FINDINGS: As discussed in the findings above, the Hearings Officer has found the gravel driveway and riprap are nonconforming uses and the applicant's previous maintenance thereof was authorized as normal maintenance of a nonconforming use. I have found the remaining improvements on the subject property — the dock, free-standing decks, garage and bunkhouse qualify as conditional uses in the FP Zone. Therefore, I find these improvements also qualify as conditional uses in the WA Zone, subject to the applicable standards therein. d. Section 18.88.060, Siting Standards A. Setbacks shall be those described in the underlying zone with which the WA Zone is combined. FINDINGS: The applicable setbacks in the underlying FP Zone is addressed in the findings above. B. The footprint, including decks and porches, for new dwellings shall be located entirely within 300 feet of public roads, private roads or recorded easements for vehicular access existing as of August 5, 1992 unless it can be found that: * * *. FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant is not proposing a new dwelling. e. Section 18.88.070, Fence Standards The following fencing provisions shall apply as a condition of approval for any new fences constructed as a part of development of a property in conjunction with a conditional use permit or site plan review. A. New fences in the Wildlife Area Combining Zone shall be designed to permit wildlife passage. The following standards and guidelines shall apply unless an alternative fence design which provides equivalent wildlife passage is approved by Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 38 of 62 the County after consultation with the Oregon Department of Fish and Wildlife: 1. The distance between the ground and the bottom strand or board of the fence shall be at least 15 inches. 2. The height of the fence shall not exceed 48 inches above ground level. 3. Smooth wire and wooden fences that allow passage of wildlife are preferred. Woven wire fences are discouraged. B. Exemptions: 1. Fences encompassing Tess than 10,000 square feet which surround or are adjacent to residences or structures are exempt from the above fencing standards. 2. Corrals used for working livestock. FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant does not propose any new fencing. However, I find that to assure compliance with this standard, the applicant will be required as a condition of approval to construct any fences on the subject property in compliance with these standards. For the foregoing reasons, the Hearings Officer finds the applicant's proposal satisfies all applicable criteria in the WA Zone. EXCEPTIONS 5. Chapter 18.120, Exceptions a. Section 18.120.010, Nonconforming Uses Except as otherwise provided in DCC Title 18, the lawful use of a building, structure or land existing on the effective date of DCC Title 18, any amendment thereto or any ordinance codified therein may be continued although such use or structure does not conform with the standards for new development specified in DCC Title 18. A nonconforming use or structure may be altered, restored or replaced subject to DCC 18.120.010. No nonconforming use or structure may be resumed after a one-year period of interruption or abandonment unless the resumed use conforms with the provisions of DCC Title 18 in effect at the time of the proposed resumption. A. Expansion or Replacement of a Nonconforming Structure. 1. Nonconforming Structure. For the purposes of DCC 18.120.010, a nonconforming structure is one that was lawfully established and violates current setbacks of Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 39 of 62 DCC Title 18 but conforms with respect to use. (Emphasis added.) FINDINGS: The Hearings Officer finds Paragraph (A) of this section focuses on structures that may be nonconforming rather than nonconforming uses, the latter addressed in Paragraphs (B), (C), (D) and (E) of this section. Bunkhouse. As discussed in the findings above, the bunkhouse began as a small structure built in 1976 that included bathroom and laundry facilities. In 2009-2010 the applicant expanded this structure to include a bedroom. The expanded structure constitutes the bunkhouse. The bunkhouse is located approximately 80 feet from the OHWM at its closest point and therefore violates the 100 -foot minimum river setback in the FP Zone. The remaining questions under this paragraph are: (1) whether the bunkhouse conforms with uses permitted in the applicable zone; and (2) if so, whether the bunkhouse was lawfully established. Each of these questions is addressed in the findings below. 1. Conforming Use. The Hearings Officer has found the bunkhouse does not constitute a dwelling because it is not designed for occupancy by a family and it does not have a kitchen or cooking area. I have found the bunkhouse qualifies as a conditional use in the FP Zone consisting of a "non-residential structure" or an "accessory building," and/or a "recreational use requiring only structures having an insignificant effect on flood waters" due to its location well above the BFE where it would not have any effect on flood waters. 2. Lawfully Established. The record indicates the original bathhouse was constructed on the subject property in 1976. The county's official records indicate that in 1976 the subject property was zoned RR -1, Rural Recreational Residential Zone, under PL -5, the county's first zoning ordinance which took effect in December of 1971. Sections 3.150 and 3.155 of the RR -1 Zone listed the uses permitted outright and conditionally in that zone. The Hearings Officer finds none of those uses includes the original bathhouse. Section 3.160 of PL -5 authorized two "accessory uses" in the RR -1 Zone -- "not more than one private garage" and "home occupation." I find neither of these uses includes the original bathhouse. The applicant asserts the bathhouse would not have required land use approval in 1976 because of its small size and its use in support of and RV on the property. However, when the bathhouse was built, the septic system — approved for "RV" use and not for use with any structure -- had been installed. Therefore, the Hearings Officer finds it likely some sort of land use review would have been required for the bathhouse in 1976 to assure the bathhouse was not constructed in a manner or at a location that would interfere with the septic system. In fact, during my site visit, the applicant advised me and Senior Planner Will Groves that the bathhouse had been constructed partially over the septic tank. The record does not indicate whether the original bathhouse required a building permit when it was constructed in 1976. The staff report states structural permits have been required in Deschutes County since 1973. However, the Hearings Officer is aware the Uniform Building Code limits the building permit requirement to structures of a minimum size, and that for many years that minimum size was 150 square feet. The evidence in the record is conflicting as to the size of the original bathhouse. Some evidence indicates it was 144 square feet in size (12 feet by 12 feet). However, the applicant's September 29, 2015 submission states it was 225 square Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 40 of 62 feet in size (15 feet by 15 feet), a size that potentially would a building permit.19 For the foregoing reasons, I find the bathhouse was illegal when it was constructed in 1976. In 1988, the county adopted the current FP Zone provisions and applied the FP Zone to the subject property based on the adoption of FEMA flood plan maps. As discussed in the findings above, the FP Zone established conditional uses that include the bathhouse and bunkhouse. Therefore, under the reasoning in Morris v. Clackamas County, discussed above, I have found that as long as the bathhouse/bunkhouse receives conditional use approval it no longer would be considered a nonconforming structure or use. Garage. The Hearings Officer finds the garage does not constitute a "nonconforming structure" because it did not exist before the FP Zone was adopted and applied to the subject property in 1988. However, as is the case with the bunkhouse, under the reasoning in Morris v. Clackamas County, I find that as long as the bathhouse/bunkhouse receives conditional use approval it no longer would be considered a nonconforming structure or use. 2. Replacement or Expansion without Additional Encroachment in Setback Area. A nonconforming structure may be replaced with a new structure of the same size on the same footprint as the preexisting nonconforming structure or may be expanded with an addition that does not prosect into the required setback area at anv point, subject to all other applicable provisions of DCC Title 18. (Emphasis added.) FINDINGS: The Hearings Officer has found that neither the bunkhouse nor the garage is a nonconforming structure as long as it receives conditional use approval. Therefore, I find this paragraph is not applicable. However, as discussed in the findings above, I have found the bathhouse/bunkhouse does not satisfy the applicable conditional use approval criteria because it violates the 100 -foot stream setback and does not qualify for an exception thereto. 3. Replacement or Expansion with Additional Encroachment in Setback Area. Replacement or expansion of a nonconforming structure that would involve an additional prosection into the front, side or rear yard setback area at anv point along the footprint of the existing or preexisting structure may be allowed provided such additional projection into the setback area (1) does not exceed 900 square feet; (2) does not exceed the floor space of the existing or preexisting structure; (3) does not cause the structure to project further toward the front, side or rear property lines than the closest point of the existing or preexisting 19 The Hearings Officer recognizes the county may not have official building permit records back to 1976, and therefore it simply may not be possible to establish whether a building permit was required for the original bathhouse. 20 PL -15 adopted an FP Zone (Section 3.210), but the zone contained no substantive provisions and was "preserved" for future fleshing out, and the record indicates no flood plain maps were adopted in 1979. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 41 of 62 structure; and (4) meets the variance approval standards set forth in DCC 18.132.025(A)(1) through (4). Such replacements or expansions must conform with all other applicable provisions of DCC Title 18. (Emphasis added.) FINDINGS: The Hearings Officer has found neither the bunkhouse nor the garage is a nonconforming structure, and therefore I find this paragraph is not applicable. I also find this paragraph is not applicable because it does not expressly refer to encroachment into the river setback, but rather only to the front, rear and side setbacks — none of which is co -existent with the river setback. In addition, I find that because the expansion of the bathhouse with the addition of the bedroom is not an additional projection into the front, side or rear yard setback. B. Verification of Nonconforming Use 1. Subject to the procedures set forth in DCC 18.120.010 and in DCC Title 22 for processing declaratory rulings, the planning division will verify whether or not a use constitutes a valid nonconforming use in accordance with the provisions of DCC 18.120.010 and applicable state law. Verification of the existence of a nonconforming use is required prior to or concurrent with any application to alter or restore the use. 2. Subject to DCC 18.120.010(F)(2), the applicant shall demonstrate all of the following: a. The nonconforming use was lawfully established on or before the effective date of the provisions of the zoning ordinance prohibiting the use or had proceeded so far toward lawful completion as of the date it became nonconforming that a right to complete and maintain the use would be vested (Emphasis added): FINDINGS: As discussed above, the Hearings Officer finds the provisions of Paragraphs (B), (C), (D), and (E) of this section address nonconforming uses -- a broader focus than that in Paragraph (A) of this section which addresses nonconforming structures. That is because Section 18.04.030 defines "use" as "the purpose for which land or a structure is designed, arranged or intended, or for which it is occupied or maintained." As discussed throughout this decision, the use of the subject property is and always has been recreational in nature — i.e., to serve RVs and their occupants on the subject property. I find all of the structures on the subject property are "designed, arranged or intended" to serve these recreational needs. The Hearings Officer has found the gravel driveway and riprap are nonconforming uses because they were established before any regulations within the flood plain took effect and applied to the subject property. The applicant has requested nonconforming use verification for the existing on-site septic system, and 1 have found I cannot consider the septic system Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 42 of 62 because its lawful use is governed by provisions in other parts of the county code and in DEQ administrative rules. The applicant also requests nonconforming use verification for the original bathhouse. The applicant's burden of proof states in relevant part: "Deschutes County applicable zoning regulations came into effect in November 1979. The Applicant is seeking verification of nonconforming use for the Bunkhouse and the septic system that serves it, as well as alteration of the Bunkhouse. The Subject Property has a colorful history as a cherished vacation home for almost 40 years. In 1975, the Subject Property was purchased by James Cate and Sherman Tucker. Mr. Cate lived on the Subject Property full time, from 1975 until 2005. Attached as Exhibits C and 0 are a number of letters from Mr. Cate, and a neighbor, Bonnie Brown. In 1976, Mr. Cate built a bathhouse on the property to serve guests when they visited. The bathhouse contained personal hygiene facilities, a bed, and a small kitchenette. Deschutes County approved the existing septic system in 1976. The septic system was originally approved for RV use, but the County informed Mr. Cate that that it could be connected to the bathhouse, so long as the septic system was approved. See attached septic certificate, Exhibit L. Mr. Cate subsequently used the existing septic to serve the bathhouse. The existence of the bathhouse was confirmed by Ms. Brown to be in existence since at least 1985, when her family moved in across the river. Therefore, because the existing septic system was approved in 1976, it was in existence before Deschutes County zoning regulations (1979), and is a verified nonconforming use. In 1992, Mr. Tucker, the joint -owner of the Subject Property, sought to expand the existing septic system to build a new house on the Subject Property. That permit was denied. See Exhibit P. Thereafter, Mr. Tucker sold his interest in the property to Mr. Cate, who continued to use the existing bathhouse and septic system instead of building a new residence. Presumably, that sale was because Mr. Tucker could not expand the septic to build a new residence on the Subject Property. In 2009, Applicant, Mr. Dreifuss, purchased the Subject Property. Applicant seeks verification for the existing bathhouse (now called Bunkhouse by the Applicant), as well as the existing septic, approved for use in 1976. Because both uses existed as a singular use as a plumbed guest facility prior to Deschutes County adoption of zoning regulations (1979), both uses should be verified as nonconforming use and this criteria has been satisfied. The primary use and footprint of the Bunkhouse has been minimally altered. Applicant has installed exterior decking. However, because the Bunkhouse is entirely above the FEMA Flood Elevation Line, see Exhibit A, we believe no substantial changes or impacts have been made and the criteria has been met. Dreifuss, File Nos, 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 43 of 62 In the alternative, the existence of the nonconforming Bunkhouse and septic system can be verified because they have been in continuous use since the mid- 1970s. Applicant has submitted ample evidence to establish such use. See letters from Mr. Cate, Exhibit C, and letter from Ms. Brown, Exhibit O. Under ORS 215.130, Applicant receives a presumption that a verified nonconforming use exists if evidence shows the existence and continuity of the use for the 10 - year period preceding application. In this case, Applicant has shown continuous use for 40 years, and so Applicant is entitled to this presumption." The Hearings Officer has found that when the original bathhouse was built, the county's original zoning ordinance, PL -5, was in effect and did not establish any uses that would include the bathhouse. For this reason, I have found the bathhouse/bunkhouse is not a nonconforming use because it was likely was not lawfully established when it was constructed. Finally, as discussed above, I have found that the bathhouse/bunkhouse falls within conditional uses allowed in the FP Zone, and therefore is not a nonconforming use as long as it satisfies the applicable conditional use approval criteria in the FP Zone and in Chapter 18.128. I have found the bunkhouse does not satisfy those criteria because it violates the 100 -foot river setback and doesn't qualify for an exception. For the foregoing reasons, the Hearings Officer finds the bathhouse was not "lawfully established" as required by this paragraph for verification of a nonconforming use. b. The nonconforming use as it existed on the date it became nonconforming, considering the nature and the extent of the actual use of the property, has continued without abandonment or interruption; and FINDINGS: Because the Hearings Officer has found the original bathhouse was not lawfully established when it was constructed in 1976, I find the rest of the criteria in this paragraph for verification of a nonconforming use are not applicable. However, assuming for purposes of discussion that his paragraph is applicable, I find the record indicates use of the bathhouse/bunkhouse has existed without abandonment or interruption since 1976. c. Any alteration in the nature and extent of the nonconforming use was done in compliance with applicable zoning ordinance standards governing alterations of non -conforming uses. FINDINGS: Assuming for purposes of discussion that this paragraph is applicable, the Hearings Officer finds that while the applicant significantly altered the size of the original bathhouse, its recreational use has not been altered in nature or extent. The structure has been used continuously to support the recreational use of the subject property by providing bathroom, laundry and (in the bunkhouse) sleeping facilities for RV users. 3. For purposes of determining whether an abandonment or interruption of use has occurred, the following shall apply: a. The reference period for determining whether an abandonment or interruption of a Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 44 of 62 nonconforming use or an aspect thereof has occurred shall be one year. b. An abandonment or interruption in a use or portion thereof may arise from the complete cessation of actual use of a property for a one- year period or may arise from a change in the nature or extent of the use made of the property for a one-year period or more. c. An interruption or abandonment that constitutes Tess than full cessation of the use or a portion thereof may, in accordance with DCC 18.120.010(F)(4), result in a declaration of a continuing use, but of a lesser intensity or scope than what would have been allowable if the nature and extent of the use as of the date it became nonconforming had continued. d. Absent an approved alteration, a change in the nature of the use may result in a determination that the use has been abandoned or has ceased if there are no common elements between the activities of the previous use and the current use. FINDINGS: The Hearings Officer has found the recreational use of the bathhouse/bunkhouse has not been abandoned or interrupted. e. Change of ownership or occupancy shall not constitute an interruption or abandonment, provided that, absent an approved alteration, the continuing use made of the property falls within the allowed scope of use made of the property by previous owners or occupants. FINDINGS: The Hearings Officer finds the change of ownership of the subject property does not constitute an abandonment or interruption of the recreational use of the bathhouse/bunkhouse to support the RV use of the subject property. f. Factors to be considered in determining whether there has been a change in the nature and/or extent of a use shall include, but are not limited to, consideration of the type of activities being conducted, the operating characteristics of the activities associated with the use (including off-site impacts of those activities), the frequency of use, the hours of operation, changes in structures associated with the use and changes in the degree to which the activities associated with the use occupy the site. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 45 of 62 FINDINGS: The Hearings Officer has found there has been no change in the nature and/or extent of the recreational use of the bathhouse/bunkhouse since it was constructed in 1976. It has been used continuously to support the recreational/RV use of the property. C. Maintenance of a nonconforming use. Normal maintenance of a verified nonconforming use or structure shall be permitted. Maintenance does not include alterations which are subject to DCC 18.120.010(E). FINDINGS: As discussed in the findings above, incorporated by reference herein, the Hearings Officer has found the applicant's previous placement of additional gravel on the driveway and additional rocks on the riprap constituted normal maintenance of the driveway and riprap which I have found are nonconforming uses. I also find future maintenance of the driveway as proposed by the applicant — i.e., placement of an additional eight yards of gravel every five years — constitutes normal maintenance of the driveway and can be approved under this paragraph. Finally, I find applicant's significant expansion of the original bathhouse into the bunkhouse does not constitute "normal maintenance" of the bathhouse. The ordinary definition of the term "maintain" is "to keep in continuance or in a certain state." Webster's New World Dictionary and Thesaurus, Second Edition. The applicant's expansion of the bathhouse did not keep the bathhouse in its original state. D. Restoration or replacement of a nonconforming use. A verified nonconforming use may be restored or replaced if all of the following criteria are met: 1. Restoration is made necessary by fire, natural disaster or other casualty; 2. The nonconforming use is restored or replaced on the same location and is the same size or smaller than it was prior to the damage or destruction; and 3. The restoration or replacement of the nonconforming use is commenced within one year of the damage or destruction. FINDINGS: The Hearings Officer finds this paragraph is not applicable because the applicant does not propose restoration or replacement of a nonconforming use. E. Alteration of a nonconforming use. 1. The alteration of a nonconforming use shall be permitted when necessary to comply with any lawful requirement. FINDINGS: The applicant seeks verification of that bathhouse as a nonconforming use, and authorization of its alteration into the bunkhouse. Although this application was prompted by code violation complaints, it is clear the applicant's alteration of the bathhouse was not for the purpose of complying with a lawful requirement. Rather, it was to include a bedroom in the Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 46 of 62 structure. The Hearings Officer finds that is not the type of alteration authorized by this subparagraph. 2. Any other alteration to a nonconforming use may be permitted subject to all applicable provisions of DCC Title 18, including site plan review and upon a finding that the alteration will have no greater adverse impact on the neighborhood. 3. For the purposes of DCC 18.120.010(E)(2), an "alteration of a nonconforming use" shall include any change in the use of the property that would constitute a change in the nature or extent of the use of the property. FINDINGS: At the outset, the staff report addresses the applicant's previous placement of additional rock on the riprap as an alteration subject to this subparagraph. Based on the evidence in this record, the Hearings Officer finds that activity constituted "normal maintenance" of the nonconforming use consisting of riprap. As discussed in the findings above, I have found the riprap on the subject property has been in place since at least 1985 — i.e., before the county's flood plain regulations took effect in 1988 and before the fill -and -removal regulations took effect in 1989. The applicant does not propose through this ongoing maintenance to extend the riprap farther into the river or over a wider area of the subject property than already is covered. The applicant requests approval for his previous alteration of the bathhouse to become the bunkhouse. As discussed in the findings above, the Hearings Officer has found the bathhouse is not a nonconforming use because it was not lawfully established when it was constructed in 1976. Therefore, I find these subparagraphs are not applicable because the applicant is not authorized to alter a nonconforming use that was not lawfully established. However, assuming for purposes of discussion that such alteration could be authorized, I include the following findings. The applicant clearly altered the structure of the bathhouse by adding a bedroom and nearly tripling its size. However, the Hearings Officer finds the applicant did not alter its recreational use. I have found the bunkhouse does not constitute a dwelling. Therefore, the addition of a bedroom to the original bathhouse did not alter its use from recreational to residential. Staff and opponents question whether the alteration of the bathhouse to become the bunkhouse nevertheless should be considered an alteration of the recreational use because it could increase the "extent" of the use by increasing flow to the existing septic system which is located in an area of documented shallow groundwater. I understand these concerns. However, as discussed above, I have found the status and use of the septic system on the subject property — and in particular whether or not it has been or can be approved for use in connection with the bunkhouse -- must be evaluated and authorized by the Environmental Soils Division pursuant to the applicable DEQ regulations. In other words, the Environmental Soils Division must determine whether the addition of a bedroom to the bathhouse would result in an increase in flow to the septic system. And because use of the subject property for sleeping in conjunction with RV use of the property preceded the addition of the bedroom to the bathhouse, l find the addition of the bedroom did not change the nature or extent of the recreational use of the property. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 47 of 62 F. Procedure. 1. Any application for verification of a nonconforming use or to expand, alter, restore or replace a nonconforming use shall be processed in conformance with the applicable procedures set forth in DC 18.120.010 and the applicable procedures of DCC Title 22, the Deschutes County Uniform Development Procedures Ordinance. FINDINGS: The Hearings Officer finds the process for evaluating the applicant's nonconforming use application conforms with the applicable procedures in Section 18.120.010 and the applicable provisions of the county's land use procedures ordinance in Title 22 of the Deschutes County Code. 2. Notwithstanding DCC 22.20.010, the initial decision on an application for an alteration of a nonconforming use shall be made administratively, without a public hearing. The Planning Director may give prior notice of the pending application pursuant to DCC 22.20.020. FINDINGS: The record indicates the applicant's nonconforming use application was not processed administratively, but rather was referred to the Hearings Officer for decision. No one objected to the process used by the county. In any case, I find the process that has been followed has not prejudiced the substantial rights of any party. Rather, the process has provided additional public participation. 3. Except as allowed by DCC 18.120.010(F)(3)(a), the burden of proof shall be on a verification applicant to prove the existence, continuity, nature and extent of the use. FINDINGS: The Hearings Officer finds the applicant's burden of proof and supplemental materials satisfy this criterion. a. Notwithstanding DCC 22.24.050, if an applicant demonstrates by a preponderance of the evidence that the nature and extent of the use sought to be verified is of the same nature and extent as the use of the property for the ten- year period immediately preceding the application, without interruption or abandonment, it shall be presumed that the nonconforming use, as proven. lawfully existed at the time the use became nonconforming and has continued without interruption or abandonment until the date of application. b. The presumption may be rebutted by a preponderance of evidence showing that the use was unlawful prior to the time it became Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 48 of 62 nonconforming, or that the use prior to the ten- year period was of a different nature or different in extent than the use, as proven, or that the use prior to the ten-year period was interrupted or abandoned. If the presumption is so rebutted, the presumption shall disappear and be of no further aid to the applicant. (Emphasis added.) FINDINGS: The Hearings Officer has found the bathhouse was not lawfully established when it was built in 1976 because it was not permitted under PL -5. Therefore, I find the presumption established in this subparagraph is not applicable. However, I have found that under the reasoning in Morris v. Clackamas County, discussed above, the bathhouse became a conditional use with the 1988 adoption of the FP Zone and its application to the subject property based on FEMA flood plain mapping. I also have found the nature and extent of the recreational use on the subject property has not changed since the bathhouse was constructed. 4. If the proof demonstrates the continued existence of a valid non -conforming use, but of a different nature or extent than that claimed by the applicant, the Hearings Body may declare there to be a valid nonconforming use to the extent proven. FINDINGS: The Hearings Officer finds this subparagraph is not applicable because I have found the bathhouse is not a valid nonconforming use. 5. An approval of a verification, replacement or restoration of a nonconforming use verification shall not be conditioned; an approval shall be sufficiently detailed to describe the allowed parameters of the verified use. However, an approval of an alteration of a nonconforming use may be conditioned in a manner calculated to ensure mitigation of adverse impacts so that the change has no greater adverse impact to the neighborhood. FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant is not requesting approval of replacement or restoration of a nonconforming use, and I have found I cannot approve verification of the bathhouse as a nonconforming use on the subject property. 6. After a decision has been rendered on an application for a verification of a nonconforming use (including any appeals provided for under DCC Title 22 and under state law), the applicant shall not be entitled to reapply under DCC 22.28.040 for another verification determination involving the same use of the property. FINDINGS: The Hearings Officer finds this provision applies and is reflected in a condition of approval in this decision. b. Section 18.120.030, Exceptions to Yard Requirements Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 49 of 62 The following exceptions to yard requirements are authorized for a lot in any zone: * * * D. An addition to an existing residential dwelling which is within 100 feet from the ordinary high water mark along a stream or lake may be constructed provided that the addition is for residential dwelling purposes, no part of the addition is closer to the stream or lake than the existing residential structure, the addition is 900 square feet in area or smaller and does not exceed the area of floor space of the existing structure and the addition conforms with all other setbacks and building limitations. (Emphasis added.)21 FINDINGS: The staff report states, and the Hearings Officer agrees, that this exception "provides the only pathway to expand structures in the 100 -foot river setback and is only afforded to residential dwellings." Because 1 have found neither the original bathhouse nor the bunkhouse is a dwelling, I find this exception is not available. For the foregoing reasons, the Hearings Officer finds the bathhouse/bunkhouse is not a nonconforming use that can be verified or altered under Section 18.120.010 because it was not lawfully established at the time it was constructed. SUPPLEMENTARY PROVISIONS 5. Chapter 18.116, Supplementary Provisions a. Section 18.116.040, Accessory Uses An accessory use shall comply with all requirements for a principal use, except as DCC Title 18 specifically allows to the contrary, and shall comply with the following limitations: A. The primary use of the property must be established or applied for prior to issuance of any building or land use permits for accessory structures. FINDINGS: Section 18.04.030 defines "accessory use or accessory structure" 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 question presented under this section is whether the bunkhouse and/or garage could be permitted on the subject property as "accessory uses." At the outset, the Hearings Officer finds it is not clear from the language of this section whether it operates as an independent authorization for approval of an "accessory use" in any zone, or 21 The Hearings Officer notes that although the title of this section states it relates to "yard" exceptions, the exceptions in Paragraphs (D) and (E) related to the river setback which is not a "yard," defined in Section 18.04.030 as "an open space on a lot which is unobstructed from the ground upward." See, Murray, (A-13-2, LM -13-13), a copy of which is included in this record. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 50 of 62 whether it addresses only the siting of an "accessory use" expressly authorized in the applicable zone. I find the text does not make the drafter's intent clear. However, I find the context — i.e., the rest of Chapter 18.116 — provides more support for the latter interpretation. That is because most of the sections in this chapter either address the siting of specific uses that are expressly authorized, or impose specific requirements for such uses, within the zoning districts — e.g., manufactured homes, hydroelectric facilities, residential homes, rock crushing, and home occupations. However, I find I need not reach that question because, as discussed in the findings above, "accessory building" is a use permitted conditionally in the FP Zone under Section 18.96.040(1), and I have found both the bunkhouse and the garage could be considered an "accessory building." I find that in light of the broad definition of "use" in Section 18.04.030, an "accessory use" can include an "accessory building," and therefore it is appropriate to analyze the bunkhouse and garage under these provisions. The Hearings Officer finds I must first determine the nature of the "primary" or "main" use of the subject property unless one of the exceptions set forth below applies. 1. Exception: a. Building permit for a ramada or carport may be issued without establishment or application of primary use if all other criteria for issuance are met. FINDINGS: The Hearings Officer finds this exception is not applicable because the applicant does not propose a carport22 or remade.23 b. Land use, building or environmental health permits or extensions of such permits sought to correct existing code violations for the subject property shall be issued if all other criteria for issuance are met. FINDINGS: The applicant submitted the subject applications in order to correct code violations. However, as discussed throughout this decision, the Hearings Officer has found that neither the bunkhouse nor the garage meets all applicable criteria. Therefore, I find this exception also is not applicable. c. A building permit for an accessory structure or structures not exceeding a combined total of 2,000 square feet in size, with no windows, with 22 Section 18.04.030 defines "carport" as * * * a structure used to shelter a vehicle, having no enclosed uses above and entirely open on two or more sides. 23 Section 18.04.030 defines "ramada" as: * * * a stationary structure having a roof extending over a manufactured structure which may also extend over a patio or parking space of motor vehicles and is used principally for protection from snow, sun or rain. A ramada is open on two or more sides and has no enclosed uses. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 51 of 62 only one floor, an operable garage door, no plumbing or stack vents through the roof or walls and not requiring plumbing or mechanical permits. FINDINGS: The Hearings Officer finds this paragraph allows an exception for certain accessory structures from the requirement that the primary use of the property must be established or applied for prior to issuance of any building or land use permits. I find it does not create an exception from the requirement that the accessory structure "comply with all requirements for the principal use." In other words, an accessory structure meeting the physical characteristics of this paragraph may be authorized if complies with the requirements for the principal use. As discussed throughout this decision, I have found the principal use of the subject property is recreational and not residential. Garage. The Hearings Officer finds the garage does meet the physical characteristics of accessory structures under this paragraph because it is less than 2,000 square feet in size, it has no windows, only one floor, an operable garage door, no plumbing or stack vents, and doesn't require any plumbing or mechanical permits. Therefore, I find the garage is eligible for the exception under this subparagraph. The remaining question is whether the garage complies with the requirements for the principal use — i.e., the recreational use of the property as allowed in the FP Zone. I have found the garage falls within the use described as "recreational uses requiring only structures having an insignificant effect on flood waters." I also have found the garage is "accessory" to that use because its purpose is to store the applicant's boat, trailer, and equipment necessary to maintain the subject property. Accordingly, I find the garage is incidental and subordinate to the main recreational use of the subject property — i.e., recreational use of the property through occupying the property with an RV. In addition, as discussed in the findings above, I have found the garage satisfies the LM site plan approval criteria. For the foregoing reasons, the Hearings Officer finds the garage qualifies as an "accessory use" meeting the applicable criteria in this section.24 Bunkhouse. The Hearings Officer finds the bunkhouse does not qualify for the exception under this subparagraph because the bunkhouse has windows and plumbing, required plumbing and mechanical permits, and does not have an operable garage door. Therefore, the remaining question is whether the bunkhouse nevertheless can be approved as an "accessory use" because it complies "with all requirements for a principal use," and the "primary use" of the subject property has been established. For purposes of discussion, the Hearings Officer finds the terms "primary use" and "principal use" are equivalent. As discussed in the findings above, the Hearings Officer has found the primary use of the subject property has been and continues to be recreational — i.e., the applicant's use of the property for placement of an RV and for recreational uses related to the river including boating and viewing the river. I have found all improvements on the subject property, including the bunkhouse, support that use. 24 The Hearings Officer finds the remaining criteria in Section 18.116.040 do not apply to the applicant's request. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 52 of 62 With respect to the other prong of this standard — i.e., compliance with all requirements for a principal use — the Hearings Officer finds the requirements for the principal use are those approval criteria applicable to the conditional use in the FP Zone. As discussed in the findings above, incorporated herein, l have found the bunkhouse satisfies all conditional use approval criteria, but does not satisfy the 100 -foot stream setback applicable to all uses in the FP Zone, and does not qualify for an exception to that setback. Therefore, I find the bunkhouse cannot be approved as an "accessory use" under this section because it does not comply with all requirements for the principal recreational use of the property. 7. Chapter 18.128, Conditional Uses a. Section 18.128.010, Operation A. A conditional use listed in DCC Title 18 shall be permitted, altered or denied in accordance with the standards and procedures of this title; DCC Title 22, the Uniform Development Procedures Ordinance; and the Comprehensive Plan. B. In the case of a use existing prior to the effective date of DCC Title 18 and classified in DCC Title 18 as a conditional use, any change in use or lot area or an alteration of structure shall conform with the requirements for a conditional use. FINDINGS: The Hearings Officer has found both the bunkhouse and the garage fall within two of the listed conditional uses in the FP Zone. I have found the bunkhouse does not satisfy the applicable conditional use criteria in the FP Zone, and therefore I need not consider whether it satisfies the conditional use approval criteria in Chapter 18.128. However, because I anticipate this decision will be appealed, and the board may elect to hear the appeal, I include findings concerning whether both the bunkhouse and the garage comply with the criterion in this chapter. b. Section 18.128.015, General Standards Governing Conditional Uses Except for those conditional uses permitting individual single family dwellings, conditional uses shall comply with the following standards in addition to the standards of the zone in which the conditional use is located and any other applicable standards of the chapter: A. The site under consideration shall be determined to be suitable for the proposed use based on the following factors: 1. Site, design and operating characteristics of the use; FINDINGS: The site is a lot in a residential subdivision abutting the Deschutes River. The record indicates many lots in this subdivision — particularly riverfront lots -- are or have been utilized for recreation. The design and operating characteristics of the bunkhouse are an approximately 500 -square -foot wood -framed structure that includes bathroom and laundry facilities, a bedroom, a gas fireplace, and attached decking. The bunkhouse is located 80 feet from the river at its closest point. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 53 of 62 The bunkhouse is used as bathroom and sleeping facilities in addition to such facilities in RVs parked on the subject property. The design and operating characteristics of the garage are a 724 -square -foot prefabricated metal building with a large garage door and a separate hinged door and in which is used to store the applicant's pontoon boat and boat trailer as well as other materials and equipment utilized to maintain the subject property for recreation purposes. The garage is set back near the access driveway and more than 100 feet from the river. Photos in the record show both the bunkhouse and garage are screened from the river by a moderate cover of the trees and shrubs. Both structures are finished in non -reflective, earth - toned colors. Opponents have questioned whether and to what extent the garage may encroach on or interfere with the existing septic system on the subject property. The Hearings Officer understands these concerns. The record includes in Exhibit "P" to the applicant's burden of proof a diagram of the septic system prepared for Blanche Tucker and submitted to the county as part of Mrs. Tucker's 1992 request for an authorization notice. That diagram shows both the sewer line and the two drain field lines are located near the center of the subject property and farther west than the location of the garage as depicted on the submitted site plan. Based on this evidence, I find the subject property is suitable for the garage considering the location of the on-site septic system. For these reasons, the Hearings Officer finds the subject property is suitable for the bunkhouse and garage considering its site, design and operating characteristics. 2. Adequacy of transportation access to the site; and FINDINGS: The subject property has access from a gravel driveway off Satterlee Way, a rural local road. In his comments on the applicant's proposal, Senior Transportation Planner Peter Russell stated that because a very low volume of traffic is predicted to be generated by the recreational use of the subject property — estimated at no more than 10 daily weekday vehicle trips — no traffic analysis is required. The Hearings Officer finds from this evidence that the subject property is suitable for the bunkhouse and garage considering transportation access to the site. 3. The natural and physical features of the site, including, but not limited to, general topography, natural hazards and natural resource values. FINDINGS: The subject property has generally level topography and a moderate cover of native vegetation. The Hearings Officer finds natural hazards on and in the vicinity of the property include potential flood hazards and wildfire hazards. However, the garage is located well above the BFE and at least 100 feet from the Deschutes River, and therefore I find the risk of flooding at the garage site is minimal. In its comments on the applicant's proposal, the La Pine Fire Department identified the subject property as in a High Wildland Fire Hazard Area, and recommended that the county require the applicant to comply with certain fire protection standards. However, I find the risk of wildfire on the subject property is no greater than on any other residential lot in the surrounding area. And in any case, I find the fire risk for the garage is minimal inasmuch as it is a prefabricated metal building that will be fire resistant. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 54 of 62 The Hearings Officer finds the natural resource values on the subject property consist of the river, riparian habitat and wetlands, the deer migration corridor, and other wildlife habitat. I find that because the garage is located above the BFE and more than 100 feet from the river, and is substantially screened from view of the river by intervening trees and other vegetation, it will have minimal if any impact on or from these natural resource values. As discussed above, a portion of the bunkhouse is within 100 -feet of the river. However, the bunkhouse is located well outside the flood plain and riparian areas. For the foregoing reasons, the Hearings Officer finds the subject property is suitable for the bunkhouse and garage considering the natural and physical features of the site, topography, natural hazards, and natural resource values. B. The proposed use shall be compatible with existing and projected uses on surrounding properties based on the factors listed in DCC 18.128.015(A). FINDINGS: The record indicates surrounding properties include rural residences, accessory structures, and docks/piers along the riverbank. Based on the Hearings Officer's site visit observations, I find a number of lots within the Oregon Water Wonderland Subdivision are developed with dwellings and with garages and similar structures for the shelter and storage of cars, boats, and other vehicles and equipment. I find the bunkhouse, while not a dwelling, is similar in size and appearance to dwellings in the surrounding area. I also find the garage is similar in size, scale and appearance to similar structures. Both the bunkhouse and garage are located outside the flood plain and are substantially screened from both the river and Satterlee Way by trees and other vegetation. For these reasons, I find the bunkhouse and garage will be compatible with existing and projected uses on surrounding properties. c. Section 18.128.020, Conditions In addition to the standards and conditions set forth in a specific zone or in DCC 18.124, the Planning Director or the Hearings Body may impose the following conditions upon a finding that additional restrictions are warranted. A. Require a limitation on manner in which the use is conducted, including restriction of hours of operation and restraints to minimize environmental effects such as noise, vibrations, air pollution, glare or odor. B. Require a special yard or other open space or a change in lot area or tot dimension. C. Require a limitation on the height, size or location of a structure. D. Specify the size, number, location and nature of vehicle access points. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 55 of 62 E. Increase the required street dedication, roadway width or require additional improvements within the street right of way. F. Designate the size, location, screening, drainage, surfacing or other improvement of a parking or loading area. G. Limit or specify the number, size, location, height and lighting of signs. H. Limit the location and intensity of outdoor lighting and require shielding. 1. Specify requirements for diking, screening, landscaping or other methods to protect adjacent or nearby property and specify standards for installation and maintenance. J. Specify the size, height and location of any materials to be used for fencing. K. Require protection and preservation of existing trees, vegetation, water resources, wildlife habitat or other significant natural resources. L. Require that a site plan be prepared in conformance with DCC 18.124. FINDINGS: The Hearings Officer has found the applicant will be required to meet several conditions of approval. d. Section 18.128.270, Fill and Removal Except as otherwise provided in DCC Title 18, no person shall fill or remove any material or remove any vegetation, regardless of the amount, within the bed and banks of any stream or river or in any wetland, unless such fill or removal is approved as a conditional use subject to the following standards: FINDINGS: The Hearings Officer finds these fill -and -removal standards are not applicable to either the bunkhouse or the garage because they are not located in the flood plain and are at least 80 feet from the bed and banks of the river. With respect to the structures located within the flood plain and mapped wetlands, the Hearings Officer has found the free-standing decks are not permitted uses and cannot be approved. I have found the dock could be approved as a community dock with imposition of a condition of approval requiring the applicant to execute and record documents including an easement allowing the owners of the adjacent Ferris property to use the dock, and an agreement by the owner of the Ferris property to abandon and remove the dock on that property. I have found the dock does not qualify for an exception to the maximum encroachment over the river. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 56 of 62 The staff report notes that the dock location falls within wetlands mapped on the LWI.26 And the dock projects over the bed and banks of the Deschutes River.26 Therefore, the Hearings Officer finds the fill -and -removal provisions in this section are applicable to the dock if any material was placed or removed from the bed and banks of the river or any wetland for or during construction of the dock. Photographs in the record of the dock during construction (e.g., Exhibit F to the burden of proof) show the dock is anchored to the riverbank by posts buried in the ground and pilings buried in the riverbank. However, I find it is unclear from these photos whether any material was filled or removed in this area to facilitate dock construction. I find it also is unclear from these and other photos in the record whether the dock was built in a wetland. The dock is located in an area of the riverbank occupied by the terminus of a gravel driveway and riprap, both of which have been in place since at least the mid -1980's. Based on my site visit observations and photographs in the record, it appears the area immediately adjacent to and below the dock no longer constitutes wetland because it no longer supports wetland vegetation. Nevertheless, it is located in a mapped wetland. The applicant's burden of proof does not address the fill -and -removal conditional use criteria in a meaningful way. Rather, as discussed above, the applicant simply argues the county's fill -and - removal provisions go too far and should not be interpreted to apply to activities that do not cause property damage, divert water flow, or increase flood elevation or hazard. The Hearings Officer finds this argument does not satisfy the applicant's burden of demonstrating compliance with this conditional use approval criterion with respect fill and removal for the dock. A. An application shall be filed containing a plan with the following information: *** FINDINGS: The applicant did not file an application for conditional use approval for fill and removal associated with construction of the dock. The applicant only requested approval of the fill -and -removal activity associated with the driveway and riprap as maintenance of a nonconforming use. Therefore, the Hearings Officer finds the applicant's proposal does not satisfy this requirement with respect to the dock. D. Except for uses identified in DCC 18.128.270(B) and (C), an application for a conditional use permit for activity involving fill or removal of material or vegetation within the bed and banks of a stream, river or wetland: 1. Shall be granted only after consideration of the following factors: 25 Section 18.04.030 defines "wetland" as: * * *an area that is inundated or saturated by surface or ground water at a frequency or duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands include swamps, marshes, bogs and other similar areas. 26 Section 18.04.030 defines "bed or banks of stream or river" as: * * * the physical container of the waters of a stream or river lying below bank full stage and the land 10 feet on either side of the container. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 57 of 62 a. The effects on public or private water supplies and water quality. FINDINGS: Assuming for purposes of discussion that conditional use approval for fill and removal associated with the dock is properly before the Hearings Officer, I find any such fill -and - removal activity will have no adverse impact on private water supplies or water quality. b. The effects on aquatic life and habitat, and wildlife and habitat. The Oregon Department of Fish and Wildlife will be requested to review and comment on the application. FINDINGS: The record includes comments from the Corps, USFS and ODFW expressing concern about possible impacts to fish and wildlife habitat from the applicant's construction and improvements in the bed and banks of the river and in associated wetlands. As discussed in the findings above, incorporated by reference herein, the Hearings Officer has found that based on the opinion of the applicant's expert Jay Bowerman, the subject property contains no critical Oregon Spotted Frog habitat, and the applicant's activity in wetlands on the subject property would not impact any critical habitat. Therefore, the Hearings Officer finds any fill and removal for dock construction satisfies this criterion. c. Recreational, aesthetic and economic values of the affected water resources. FINDINGS: The Hearings Officer finds the dock and any fill -and -removal associated with its construction will have no adverse impacts on the recreational, aesthetic and economic values of the Deschutes River. The record indicates there are numerous docks along the river in the vicinity of the subject property that are used for recreation. Based on my site visit observations, I find the applicant's dock is aesthetically pleasing because of its very low profile and the construction materials used. d. Effects on the hydrologic characteristics of the water body such as direction and velocity of flow, elevation of water surface, sediment transportation capacity, stabilization of the bank and flood hazards. FINDINGS: The Hearings Officer finds the dock would have no adverse impacts on the hydrologic characteristics of the river such as direction and velocity of flow, elevation of water surface, sediment transportation capacity, stabilization of the bank and flood hazards. That is because the dock has a very low profile. In addition, the applicant submitted a "no -rise certification" provided by a registered professional engineer stating the dock would remain in place during a flood event. The staff report notes that in its comments on the applicant's proposal the USFS stated the applicant must obtain a free flow analysis from the USFS under the Wild and Scenic Rivers Act. The Hearings Officer has found that if the board approves the dock on appeal, the applicant should be required to do so as a condition of approval. e. The character of the area, considering existing streambank stabilization problems and fill or removal projects which have previously occurred. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 58 of 62 FINDINGS: The dock replaces previous docks historically built on the subject property. Aerial photos in the record show numerous docks along the stretch of the river near the subject property. The applicant's dock has a very low profile and is constructed of water- and flood - resistant materials. As such, the Hearings Officer finds the dock will not have an adverse impact on, and will be consistent with, the character of the area, considering the existing streambank stabilization problems and fill or removal projects which have previously occurred. 2. Shall not be granted unless all of the following conditions are met: a. That all necessary state and federal permits will be obtained as a condition of approval of the conditional use. FINDINGS: The Hearings Officer has found that if the dock is approved on appeal, the applicant should be required as a condition of approval to obtain all necessary state and federal permits for fill and removal associated with the dock. b. That there is no practical alternative to the proposed project which will have Tess impact on the surrounding area, considering the factors established in DCC 18.128.270(D)(1). FINDINGS: The staff report suggests the dock guidelines provided by ODFW represent practical alternatives to the applicant's dock. Those guidelines are attached to a July 28, 2015 electronic mail message from Nancy Doran of ODFW and include a number of recommendations concerning dock widths, construction materials, maximum river encroachment, float materials, and pilings. However, the Hearings Officer finds this exception requires the applicant to demonstrate there is no practical alternative to his fill -and -removal project — i.e., the deck itself — rather than the physical characteristics of the dock. Therefore, find the ODFW dock guidelines are not relevant to this criterion. And I find that because the purpose of the dock is to provide mooring for boats and a landing place for marine transport, there is no practical alternative to the dock. c. That there will be no significant impacts on the surrounding area, considering the factors established in DCC 18.128.270(D)(1). FINDINGS: As discussed in the findings above, the Hearings Officer has found the dock will not have an adverse impact on fish and wildlife habitat, water flow and quality, or the character of the surrounding area considering the factors established in Section 18.128.270(D)(1). d. That erosion will be adequately controlled during and after the project. FINDINGS: The dock has been constructed, and therefore erosion during the project no longer is a relevant consideration. With respect to erosion after dock construction, the Hearings Officer finds the combination of adequately anchoring the dock and maintenance of the existing riprap adjacent to the dock will adequately control future erosion, therefore satisfying this criterion. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 59 of 62 e. That the essential character, quality, and density of existing vegetation will be maintained. Additional vegetation shall be required if necessary to protect aquatic life habitats, functions of the ecosystem, wildlife values, aesthetic resources and to prevent erosion. FINDINGS: The dock already has been constructed. Evidence in the record is sparse concerning the character, quality and density of the vegetation that existed prior to construction. The aerial photos in the record do not provide sufficient detail to assess the vegetation, although, as discussed above, the dock was constructed at the terminus of the gravel driveway and adjacent to existing riprap. Photos of the dock under construction appear to have been taken during the winter and as such do not depict the nature of vegetation during the growing season when it likely is more abundant. For these reasons, the Hearings Officer agrees with staff's conclusion that the record is inadequate from which to find this criterion is satisfied. f. That the proposed fill or removal activity will be consistent with all relevant goals and policies of the Deschutes County Comprehensive Plan. FINDINGS: The Hearings Officer finds that whether a proposal is "consistent with" comprehensive plan goals and policies must be determined by whether those goals and policies address the specific actions for which approval is sought. The only comprehensive plan goal or policy identified in the staff report as potentially relevant to the applicant's proposal is the riparian corridor inventory set forth in Table 5.3.2 of the plan which includes the subject property. Chapter 2 of the plan, Resource Management, sets forth water resource policies in Section 2.5 and wildlife policies in Section 2.6. I have examined the goals and policies in Sections 2.5 and 2.6 and find that all of them establish actions the county should or must take to protect water and wildlife resources. Therefore, I find these goals and policies are not applicable, and the applicant's proposal need not be "consistent" with them. 9. That a conservation easement, as defined in DCC 18.04.030, "Conservation Easement," shall be conveyed to the County, which provides, at a minimum, that all elements of the project will be carried out and maintained as approved, in perpetuity, for the regulated fill or removal area and all real property on the same tot, within 10 feet of any wetland, river or stream. FINDINGS: As discussed in the findings above, the Hearings Officer has found the applicant will be required as a condition of approval to execute and record a conservation easement. IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby: A. DENIES the applicant's request for approval of the dock, free-standing decks, and bunkhouse. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-N UV / 116 -LM Page 60 of 62 B. APPROVES the applicant's request for verification of a nonconforming use consisting of the gravel driveway and riprap and previous maintenance thereon, and for future maintenance of the driveway through application of up to eight (8) cubic yards of gravel every five years, and placement of additional rocks on the riprap to stabilize it, SUBJECT TO THE FOLLOWING CONDITION OF APPROVAL: 1. The applicant/owner shall not be entitled to reapply under Section 22.28.040 of the Deschutes County for another verification determination involving the same use of the property. C. APPROVES the garage and wellhouse, SUBJECT TO THE FOLLOWING CONDITIONS OF APPROVAL: 2. The applicant/owner shall obtain all necessary building plan review, permits and inspections for the garage within 30 days of the date this decision becomes final. 3, The applicant/owner shall retain all existing tree and shrub cover screening the garage and wellhouse from the river. 4. The applicant/owner shall assure all exterior lighting on the garage and wellhouseis shielded so that it is directed downward and is not directly visible from the Deschutes River 5. The applicant/owner shall assure than any signage on the subject property is limited to property protection signs (no trespassing, no hunting, etc.), does not include any form of outdoor advertising, and receives a sign permit from the county before installation. 6. The applicant/owner shall construct any fences on the subject property in compliance with Section 18.88.070 of the Deschutes County Code. 7. The applicant/owner execute and record with the Deschutes County Clerk a conservation easement as defined in Section 18.04.280 of the Deschutes County Code, "Conservation Easement," and as specified in Section 18.116.220 of the Deschutes County Code. In the event the Board of County Commissioners approves the dock and/or free-standing decks on appeal, THE HEARINGS OFFICER RECOMMENDS IMPOSITION OF THE FOLLOWING CONDITIONS OF APPROVAL: 8. Within 30 days of the date this decision becomes final, the applicant/owner shall assure: a. the dock on the adjacent property to the east (Ferris lot) is removed; b. execution and recording with the Deschutes County Clerk of a document or documents that provide access to the applicant's dock for the owners of the adjacent property to the east (Ferris lot) and provide for maintenance of a "community dock" on the subject property; and Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 61 of 62 c. if the requirements under Paragraphs (a) and (b) of this condition are not satisfied within the specified period of time, the dock on the subject property is removed. 9. The applicant/owner shall obtain any all necessary federal and state agency and local government permits and approvals (e.g., from ODFW, DSL, USFS, the Corps, etc.) for the applicant's activities in the flood plain and wetlands, or provide to the Planning Division written documentation from these entities that no such permits or approvals are required. 10. The applicant/owner shall submit to the Planning Division written documentation from a registered professional engineer that the dock materials comply with any and all applicable DEQ and EPA regulations for dock or pier construction materials. 11. The applicant/owner shall submit to the Planning Division written documentation that the treated wood dock components were fully cured or dried prior to their placement in the river. 12. The applicant shall submit to the Planning Division a "free-flow analysis" from the USFS under the federal Wild and Scenic Rivers Act, or provide to the Planning Division written documentation from the USFS that such analysis is not required for the dock. Dated this 9th day of December, 2015 Karen H. Green, Hearings Officer Mailed this gth day of December, 2015 THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED. Dreifuss, File Nos. 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM Page 62 of 62 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/ CERTIFICATE OF MAILING FILE NUMBERS: 247 -15 -000113 -CU / 114 -CU / 115-NUV / 116 -LM DOCUMENT MAILED: Hearings Officer's Decision MAP/TAX LOT NUMBERS: 20-11-18C00-4300 certify that on the 9th day of December, 2015, the attached notice(s)/report(s), dated December 9, 2015, was/were mailed by first class mail, postage prepaid, to the person(s) and address(es) set forth below/on the attached list. Dated this 9th day of December, 2015. COMMUNITY DEVELOPMENT DEPARTMENT Peter Dreifuss c/o Hurley Re, P.C. 747 SW Mill View Way Bend OR, 97702 Elizabeth Dickson & Ken Katzaroff Hurley Re, P.C. 747 SW Mill View Way Bend, OR 97702 John and Beverly Heimes 17288 Satterlee Way Bend, OR 97707 Joseph M Craig P.O. Box 8176 Bend, OR 97708 Mark A & Barbara J Peressini 56332 Solar Dr. Bend, OR 97707 By: Moonlight BPO Peter Dreifuss & Sandra Bovenzi 17266 Satterlee Way Bend, OR 97707 Jack & Norene Delance 1390 SW Maplecrest Dr. Portland, OR 97291 Gene & Laura Mildren 13 Bernini St Lake Oswego, OR 97035 Mary Ann And Robert Stephens 56179 Solar Dr. Bend, OR 97707 Hickman, Terry H & Nancy C 56324 Solar Dr. Bend, OR 97707 Quality Services Performed with Pride Howard Faul 56308 Solar Dr Bend, OR 97707 Gordon And Linda Ferris 15460 S Paradise Mulino, OR 97042 Ian Mckey 56270 Solar Dr. Bend, OR 97707 Mary Felder 56222 Solar Bend, OR 97707 Peter And Diana Gustayson 56180 Solar Dr. Bend, OR 97707 Dana Brown 17295 Merganser Ct Bend, OR 97707 Don Mckelvey 6466 Parkhill Way Portland, OR 97239 Rick And Darla Curry 17265 Merganser Dr. Bend, OR 97707 Marie S Turney 56290 Solar Dr Bend, OR 97707 Wm And Barbie Roberts 17227 Merganser Dr. Bend, OR 97707 Jeffery Eorio 56250 Solar Dr Bend, OR 97707 Dana Stanley And Beverly Christiansen 56186 Solar Dr. Bend, OR 97707 Larry And Pat Birdsell 17103 Milky Way Bend, OR 97707 Becky Haskin 939 Sherwood PI Eugene, OR 97401 David & Sheila Schmerber 17271 Merganser Dr. Bend, OR 97707 Vernon And Koni Jo Jememica 17251 Merganser Dr. Bend, OR 97707 Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM DATE: December 30, 2015 TO: Board of County Commissioners FROM: Will Groves, Senior Planner RE: Whether to hear Elizabeth A. Dickson's appeal of a Hearings Officer's decision. File Nos. 247 -15 -000113 -CU, 247 -15 -000114 -CU, 247-15-000115-NUV, 247 -15- 000116 -LM (247-15-000670-A) Before the Board of County Commissioners (BOCC) is an appeal filed by Elizabeth A. Dickson, attorney for Peter Dreifuss. The appeal is submitted in response to a Deschutes County Hearings Officer's decision that a new community dock and decks, verification of non- conforming structures (bunkhouse and garage), alteration of the bunkhouse, verification of nonconforming uses consisting of fill within the flood plain and wetlands, and a septic system do not comply with all applicable regulations. The appellant requests the BOCC formally consider the decision. BACKGROUND In approximately 1976, Applicant's predecessor constructed a small structure on the property, referred to as the "bathhouse," that had a sink, toilet, shower, and laundry facilities inside and a faucet and sink outside. In 2009 and 2010, the applicant built several structures on the subject property, including the existing dock, free-standing decks, walkways, garage, and an addition to the "bathhouse" consisting of a bedroom and attached decking, creating the bunkhouse. The applicant also placed eight cubic yards of gravel on the driveway. In 2013, the county received code violation complaints concerning construction and use of improvements on the subject property without necessary permits and approvals: 247 -13205 -CE (septic system); 247 -13206 -CE (work without building permits); and 247 -C13207 -CE (work without land use approval). The applicant submitted the subject land use applications to permit the work performed after -the -fact. The Hearings Officer issued a decision on December 9, 2015 finding that the proposal does not comply with all applicable regulations. Specifically, the "bathhouse" was found to have been unlawfully established while PL -5 was the active zoning code, aboveground decks were found Quality Services Performed with Pride to be not allowed in the 100 -foot river setback, and the dock was found not to comply with a number of regulations. On December 22, 2015, the applicant appealed the decision to the BOCC. The 150 -day period for issuance of a final local decision under ORS 215 expires on January 21, 2016. The applicant has offered to toll the 150 -day clock through April 29, 2016 to allow sufficient time for the BOCC to hear this matter and issue a decision. APPEAL The notice of appeal describes several assignment of error. These are summarized below, with references to those pages within the decision where the Hearings Officer addressed the issue. 1. County Flood Plain designation should reflect actual site conditions verified by survey. H.O. Decision, pp. 32-33: "The Hearings Officer has found the county is authorized to interpret the FP Zone to apply only to those portions of the subject property located at or below the BFE based on a site-specific flood plain survey. The staff report raises the question of whether and to what extent the RR -10 Zone applies to the subject property because the entire property is zoned FP, which is a base or "primary" zone. As discussed in the findings above, in prior decisions the county has found that where, as here, a site-specific survey shows the flood plain is less extensive than the area mapped by FEMA, the provisions of the FP Zone are not applied to uses outside the surveyed flood plain and the provisions of the adjacent zone do apply. However, I have concluded that for purposes of the analysis in this decision, I will consider the entire subject property to be zoned FP. Therefore, I find the provisions of the RR -10 Zone do not apply to the applicant's proposal." Staff Note: While the BOCC might conclude, were it to hear this appeal, that the bunkhouse and garage should be evaluated under RR -10 zone criteria (as they are above the Base Flood Elevation), the setback requirement preventing expansion of the bunkhouse and placement of the decks is identical in the RR -10 and FP zones. 2. Nonconforming Use Verification should be granted when historic photos, neighbor testimony, and County Records prove existence. H.O. Decision, pp.40-51. "The record indicates the original bathhouse was constructed on the subject property in 1976. The county's official records indicate that in 1976 the subject property was zoned RR -1, Rural Recreational Residential Zone, under PL -5, the county's first zoning ordinance which took effect in December of 1971. Sections 3.150 and 3.155 of the RR -1 Zone listed the uses permitted outright and conditionally in that zone. The Hearings Officer finds none of those uses includes the original bathhouse. Section 3.160 of PL -5 authorized two "accessory uses" in the RR -1 Zone -- "not File Nos. 247 -15 -000113 -CU, 114 -CU, 115-NUV, 116 -LM (670-A) Page 2 of 4 more than one private garage" and "home occupation." I find neither of these uses includes the original bathhouse." Staff Note: Staff understands the record to contain no debate on the establishment date of the "bathhouse". At issue is whether that use was lawful at the time of establishment. 3. Deschutes River dock requirements need clarification. H.O. Decision, pp. 16, 20-27. Staff Note: The Hearings Officer denied the dock under several criteria (including frontage and dock size). While staff believes the Hearings Officer made reasonable interpretations, BOCC affirmation or reinterpretation on these issues would likely be granted deference on any future appeal. 4. Marine Life and Wildlife Habitat identification and mitigation analysis should weight site-specific information over general regulations or observations. Staff Note: The Applicant states: "We ask the Board to consider the reason for dock restrictions and if the underlying concern to protect habitat is met, that the Board allow the dock replacement to be deemed permitted". Staff notes that the applicant appears to be requesting a variance to dock criterion, but has not applied for a variance. The applicant also included a request to reevaluate the Hearings Officer's denial of decking in the 100 -foot river setback under this appeal topic. The appellant requests de novo review. In deciding whether to hear an appeal, the BOCC may consider only the notice of appeal, the record of the proceedings below, and any staff recommendations. DCC 22.32.035(D). No additional comments from the parties are allowed. If the BOCC decides to hear the appeal, the review shall be on the record unless the BOCC decides to hear the appeal de novo. The BOCC may hear this matter de novo if it finds the substantial rights of the parties would be significantly prejudiced without de novo review and it does not appear that the request is necessitated by failure of the appellant to present evidence that was available at the time of the previous review. The BOCC may also choose as de novo review when, in its sole judgment, a de novo hearing is necessary to fully and properly evaluate a significant policy issue relevant to the proposed land use action. DCC 22.32.027(B)(2)(c) and (d). The BOCC may, at its discretion, determine that it will limit the issues on appeal to those listed in the notice of appeal or to one or more specific issues from among those listed on the notice of appeal. DCC 22.32.027(6)(4). DECLINING REVIEW If the BOCC decides that the Hearings Officer's decision shall be the final decision of the county, then the BOCC shall not hear the appeal and the party appealing may continue the appeal as provided by law. The decision on the land use application becomes final upon the File Nos. 247 -15 -000113 -CU, 114 -CU, 115-NUV, 116 -LM (670-A) Page 3 of 4 mailing of the BOCC's decision to decline review. DCC 22.32.035(B). In determining whether to hear an appeal, the BOCC may consider only: 1. The record developed before the Hearings Officer; 2. The notice of appeal; and 3. Recommendations of Staff. DCC 22.32.035 (D). STAFF RECOMMENDATION Reasons to hear: 1) There are a number of significant code interpretation issues. LUBA will be obligated to defer to BOCC's interpretations if they are at least plausible. The BOCC may want to reinforce or refute some or all of the Hearing Officer's findings/interpretations prior to LUBA review. Reasons not to hear: 1) CDD Staff believes the hearings officer decision is well reasoned and well written and could be supported as -is on appeal. Attachments 1. Hearing Officer's decision 2. Notice of Intent to Appeal File Nos. 247 -15 -000113 -CU, 114 -CU, 115-NUV, 116 -LM (670-A) Page 4 of 4 Peter Dreifuss Oral Presentation Before the Deschutes County Board of County Commissioners March 30, 2016 File Nos. 247-15-000113-CU/114-CU/115-NUV/116-LM WHAT I BUILT ON OUR LOT BOAT DOCK I built a beautiful boat dock made of seasoned timber and Trex Composite Decking material. The Trex material will last at least 50 years and will not pollute the river. The pier tops have solid copper caps. The Hearings Officer even commented as to how appealing the boat dock was. Our area has a boat dock for every residence, and most of the docks on the river are in disrepair and are sinking. The new dock that we built will never sink, and it is undoubtedly the most beautiful one on the river. We built our dock over the footprint of an original dock that had been removed, and the new pilings are directly on top of the old pilings. DECKS I also built two low-level decks that are anchored by cement and posts in the ground. These decks have a walkway between them, and are also constructed of Trex Composite Decking material. The decks will not float away, pollute the river, or do anything detrimental to the area or the neighborhood. These decks, at approximately 12 inches off the ground, are appealing and enhance the property. BATHHOUSE I expanded the existing bath house. It was originally constructed at 15' 6" x 12'3", or 189.86 square feet. I added 15' 6" x 20', or 310 square feet. The building now totals 499.86 square feet. All of the addition is made up of re -sawn material and adds scenic beauty to the community. Its color blends into the surrounding vegetation and is appealing to look at. An additional deck surrounds this building and continues to add visual pleasure to the surroundings. In addition to these improvements, the landscaping, including real grass and additional plantings, add to the overall beauty of the property. I have included a photo of the original bathhouse, which was constructed in the 1970s. The photo was taken by a neighbor across the river. More property pictures are to follow. I would hope that you agree that these are pleasant photographs. Peter Dreifuss Oral Presentation — 247-15-000113-CU/114-CU/115-NUV-116-LM Page 1 of 7 THE BOAT DOCK Our boat dock should be allowed. The border line of our river frontage measures some 209.5 feet. This meets the requirement criteria for an individual boat dock. It was the Hearings Officer's opinion that the measurement should not be the shoreline, but instead a straight line between property boundaries. Private dock requirements in County Code specify 200 feet of shoreline. Our property measures 209.5 feet. Our private dock should be approved. The square footage of the private dock is 255.46 square feet. This dock is anchored on the land above the shoreline by 165.46 square feet, as these photos show. However, the area of the dock over the water is only 92 square feet. This complies with your Code. Furthermore, the actual dock structure over the water is built with separate weight-bearing support and is independent of the decking over land. (See photos). You can see by the photographs that the old boat dock existed in the same place. As opposed to all the other existing docks on the river, this is more attractive and functional than any other. It will never look like so many of the deteriorated docks on the river. It will always look fresh. It is closer to the shore than most other docks and only extends out into the water a few feet. We had circulated a petition on the boat dock for our neighbors to sign. This petition was for our boat dock to "stay as is." Some 40 neighbors signed this document and only 4 did not. Of the 40 neighbors, 6 wrote the County very positive letters concerning the property. Peter Dreifuss Oral Presentation — 247-15-000113-CU/114-CU/115-NUV-116-LM Page 2 of 7 DECKS There are two decks on the property with a 12 -foot walkway in between. Since we feel that we have proven that a deck is not a structure, but is considered landscaping by the County, a permit is not required and the 100 -foot setback is not a requirement as mentioned in the County's handout. Other Influences: The two homes to the left of our property were built during the same era (1976 approximately). Both of these homes have patios/decks either at the river's edge or some 10 feet from the river's edge. One of these homes was entirely rebuilt 2 years ago, and a new patio was added only 15 feet from river, with a permanent hot tub installed. We feel that we should be given the same rights as these two homes. Consider this: if the decks were made of concrete at ground level, they certainly would not be looked upon as a structure. I have asked many contractors in Bend this question and not one has stated that a concrete patio is a structure. The Hearings Officer's opinion on page 31 notes: "A structure is built for the support, shelter or enclosure of persons, animals, chattels or property...." Our decks are not structures, just because they are made of wood. They are landscaping according to the Deschutes County Code. The following photographs reflect how the two decks and walkway appear. Some photos were taken in the month of February and the decks still have winter debris on them. Note that we have built the decks to flow around the existing trees on the property. Peter Dreifuss Oral Presentation — 247-15-000113-CU/114-CU/115-NUV-116-LM Page 3 of 7 ACCESSORY BUILDING Originally, the property contained a bath house built in 1976. The County labeled the building as the Bath House. The front corner is approximately 81 feet from the river's edge. See attached photograph. (See photo). By the Hearings Officer's own statement, "No building records are available from the late 1970s." The 100 -foot setback from the river did not apply until the 1980s. This accessory house was less than 200 square feet. There appears to be many construction projects in our area that are less than 100 feet away from the river. (See photo). The original small accessory building on our property sets the rule for the allowable setback footage. The additional accessory building that was added in 2009 is behind the Bath House, and is therefore further away from the river. As a further footnote, there is another accessory building on the property which has been labeled as the "pump house" by the County. This building is less than 200 square feet, houses our water pump and equipment, and has a window, a door, and heating equipment to prevent winter freezing. This is an "RV Lot." We have been to hundreds of RV Campgrounds and sites in the USA. All of them have had an accessory building in which to store furnishings and supplies. This lot should be no different. The building that we added on directly to the back of the original accessory Bath House is an accessory building. This accessory building has no plumbing. It has its own source of electricity, it has no wood burning fireplace (contrary to what the Hearings Officer previously stated), it has a door and windows and contains four chairs and a table. It is used primarily to store furnishings for the decks during the winter season. It also contains a bed. We will remove the bed if that should matter. We never use this accessory building for sleeping purposes, we use our 45 -foot motor coach. Do I Need a Permit? Please refer to the brochure I was given with regard to permits. Refer to Item #19. "Framed covered accessory buildings not more than 500 square feet in area, one story in height or closer than 3 feet to the property line, where the structure is composed of a rigid framework that provides a weather barrier, is exempt from permits and fees." Our added -on accessory building is less than 300 square feet, and we tried to comply with the requirement in #19. If you should add both accessory buildings' square footage together, you arrive at 499.86 square feet. This amount of square footage would also comply with #19. This building, measured independently, measures 93 feet from the river's edge. Peter Dreifuss Oral Presentation — 247-15-000113-CU/114-CU/115-NUV-116-LM Page 4 of 7 SEPTIC SYSTEM We purchased the subject property in 2009. We began to improve the property in 2009 and completed as is today by 2012. Our property was all set up and beautiful, and there was not a day in the summer season that a passer-by did not stop at our property and mention how beautiful it was. We purchased this property with the understanding that Oregon Water Wonderland Unit 11 was required to install a sewer system across the river. This was something ()WWII was required to do. This system was built in 1976 by this permit. (See photo.) We have maintained the system since. See 2013 and 2015 records of maintenance and inspection. Peter Dreifuss Oral Presentation — 247-15-000113-CU/114-CU/115-NUV-116-LM Page 5 of 7 CONCLUSION Boat Dock The criteria for the private boat dock has been met. We have over 209 feet of river frontage, using measuring methods the County has approved before. Our dock complies with the river overhang requirement. The additional decking and surface area of the dock can be dropped to ground level and satisfies the County's requirements for construction and elevation. All other properties along this part of the river have their own personal boat dock. This boat dock is low-level and very appealing to view. It adds substantially to the river frontage scene, without interrupting river flow, and is admired by most residents. The boat dock should be approved as it stands. Decking The two decks that have been constructed should be approved as is for the following reasons: the criteria from the County on landscaping states that a deck does not require a permit to install. The County argues that a deck is a structure and therefore is subject to the 100 -foot setback from the river. The County's criteria does not say that. Therefore, a deck is not subject to the 100 -foot river setback. After spending some time with Mr. Will Groves, Senior Planner with Deschutes County, it was stated that if the decks were at ground level or within an inch or two of ground level, that the decks might be okay. We could not verify this information in writing, but made the assumption that this was a correct statement. If you require it, we will lower the decks. Accessory Buildings There are two accessory buildings on our lot. One is backed up to the other. The smaller accessory building had been on the property since approximately 1976. It contains a sink, toilet, shower and washing machine and dryer. The facilities in this building are used once or twice a month during the summer season. It has never been used during the fall or winter seasons. The smaller of the two accessory buildings is some 81 feet away from the river's edge. This building was set in place prior to there ever being a 100 -foot setback ruling for the river's edge. This building was constructed at the same time as the house next door and measures 189 square feet. Both properties were originally owned by the same individual. The second accessory building "butts up" to the smaller accessory building, behind it and further away from the river. This second accessory building is 93 feet from the river's edge and has square footage of 310 square feet. Its primary use is to store outdoor furniture and accessories for use during the summer time. According to the County's requirements, neither of these two accessory buildings, because of their respective sizes, required a building permit nor are subject to the 100 -foot setback rule. Peter Dreifuss Oral Presentation — 247-15-000113-CU/114-CU/115-NUV-116-LM Page6of7 If the County finds that I must move this second accessory building to the 100 -foot mark, it would not be feasible to do. An estimate to do this 7 foot move was some $30,000.00. We would have to destroy the building. Septic System The septic system, which as approved on October 20, 1976, is a perfectly installed operating system, and has worked since 1976 (40 years ago). Even though it is old in years, the tank is in perfect condition and has complete integrity. The septic field, which is connected to the tank by solid piping, is some 150 feet away from the river in a non -flood zoned area. This system is an RV Lot system, and operates perfectly. It is used very infrequently, and has no proven effect on river contamination. Financial Impact We ask the appeals board to consider the financial impact on our family. Our attorney has advised us that the appeals board would not be concerned over personal finances. We ask for an exception. Peter Dreifuss Oral Presentation — 247-15-000113-CU/114-CU/115-NUV-116-LM Page 7 of 7 c CD 1, 0) X"' a) . c CO 0 0 1 co CO co . c .cm a- 0 er from the northeast e Deschutes R tO 0 O CL al a) t z O N 0) c 0 O N O CO CD L O N N 7 inN 73 c ca t O c O I— ti cf) 01 1, 4, Alt* #1 O O a Q O 2 0 N O U N � tI5 1 U c N "6 1 t[5 O O O c c t6 > co cn co _ N CO 0 0 0— N—L; CO -cc; ■••— O CO 3 V 0 C CO J (/) 0 0 -,CO..' LN2 L.)N C N . — a O C0 N V 6 cn E- ✓ C C0 J tO OD Iii IIIIIII11111A1111101111111101111111,1111711 IID V 0 D N N N co CV •�• N ebop T2.; Q) 4.1 U a" M va September 25, 2015 As always, should you have any questions or require additional information, just call. w \ \ \ 1, } sos b b rAr CA OA CI) Ok r.. 1 1 1 1 r N CO O N tiAN 4— o363 to 0 C6 F-^� (0 O O O E 4_ O N co CL o- cn N ticS N Ci) o0 T5 O O O T3 4->C1)a) (1)(14 s- 0 O 0 (1) o) o o4 - v c)- co 0 W D M N M Dock (#7) directly across from the Dreifuss property. Photo taken on 3/29/16. M M ,:r co co i_ a) > CcN a) D t U () a) 0 a) -)-- -' L CU O 4) N L. O CSA c O O 0 a) 4A c 0_ co 0 N c CB E a) 4-- -+ D 0 (/1 a) -I-' LI - 0 L a) c L O U a-+ N a) D 0 N a) I- ooking northwest to 1 -f1 r -I LII N N c a) CD 0 0 0- - L a) Q O 2 Q a) +- -, c O w 0 W Ln 0 Ln N CO N .0 N al co v o u) 2V aC CO a. • - i • neighb.r Jo e.h r.ig vi. : • 1- s111 � �. c. _. �'� � . =rz t Nearby homes and proximity to the River. Photo taken 3/29/16. M d L r-1 cn N m c v ro a--' O O CL L. CU 0_ O 2 0 0 N it 0 E O 4- c 0 N O N CU N 0 y -- O U 0 0 Viitnigtrraft,`"'. ' '444, 0 0) N N O 15 tfi i. oN N o S' o c. Is 0o 0 O ccs o o o N 0 I o8 gz 11•••••` 1 9 $ 1a1 1 11 x z 8 8 8 •" 8 g g 1 t;' a) 0 a .z S ii ..... (1) a i r c) § ri ,.• 1, ff, CU 8 _.J 1111111111 8 Thank you for your busness! Scanned by CamScanner 0 6 la 0 0 T.! 0 C3 8 s SEE OAP 20 10 120 r B was m sg um lam _ SOLAR R4, 114.10 t 02 ^fig tttttt s m e$ z m !'✓ CM s \� ~� $`JmS ]41.U= olm i i:w s 1 3 $ ml e S §, 81 S a $ MM "r. 131.0 381 BLACK DUCK ROAD 1n.8 ti 714 wo -ole ,3 N Im a s g L144.02 g 1s� a� s MM_ w 10.02 sa r 0 om xggw 4c •, o. .,� 4 ag m 10.02 .1.4 w 0) CO IDER RD 'BLACK DUCK ROAD SEE YAP 20 11 180 ooSoSaas§8..8g N 03 n va 29 FACE 932 RURAL RECREATION RESIDENTIAL ZONE RR -1 SECTION 3.150 Uses Permitted Outright. In an RR -1 Zone the following uses and their accessory uses are permitted outright: 1. Single-family dwelling. 2. Farming including the keeping of livestock in accordance with the standards prescribed in Section 7.050. 6. of this ordinance. SECTION 3.155 Conditional Uses Permitted. In an RR -1 Zone the following uses and their accessory uses are permitted when authorized in accordance with.i<he provisions of Article 7: 1. Two-family dwelling. 2. Public use. 3. Semi-public use. 4. Mobilehome used as the principle residence unless otherwise restricted by deed restrictions. 5. Planned Development as prescribed in Section 4.010 of this ordinance. SECTION 3.160 Accessory Uses.In an RR -I Zone there shall be the following limitations on accessory uses: 1. There shall be not more than one private garage for each dwelling unit and the garage shall not exceed 720 square feet in floor area. 2. There may be home occupations as provided in Section 5.010. SECTION 3.165 Lot Size. In an RR -1 Zone the minimum lot size shall be as follows: 1. Lot area shall be a minimum of one acre except as may be provided in a planned development where a community water system is provided and approved by the State Board of Health. 2. Where inadequate soil conditions or a high water table exists or where areas are subject to innundation, no individual sewage disposal systems may be installed. Lot size shall be predicated on adequate soil conditions and locations for the installation of sewage disposal facilities as determined by the County Health Department; however, no lot may be less than one acre in area. 3. No sewage disposal facility shall be installed and no residence may be constructed or mobilehome occupied unless and until approval has first been obtained from the County Health Department. SECTION 3.170 Yards. Except as provided in Article 6, in an RR -1 Zone the minimum yard requirements shall be as follows: 1. A front yard shall be a minimum of 50 feet .between a building or structure and the ultimate street right-of-way as adopted on the Comprehensive Plan or Official Map. 2. A side yard shall be a minimum of 10 feet, except that on corner lots the side yard on the street side shall be a minimum of 25 ft. 3. A rear yard shall be a minimum of 50 feet. - 15 et 29 ria933 SECTION 3.175 Height of Buildings. In an RR -1 Zone no buildings shall exceed a height of 35 feet or two and one-half stories whichever is lower. SECTION 3.180 Signs. In an RR -1 Zone the_ following signs are permitted: 1. One name plate or home occupation sign for each dwelling unit. The sign shall not be more than one and one-half square feet in area, and shall not be illuminated.. 2. One temporary sign advertising the sale,lease, or rental of the property on which it is located.- The sign --shall not be more than six square feet in area, and -shall not be -illuminated. 3. One temporary sign within a subdivisionadvertising the sale of lots within that subdivision. The sign shall not be more than 64 square feet in area, shall not be illuminated, and shall be at least 10 feet from a front or side property line. SECTION 3.185 Off -Street Parking and Loading. In an RR -1 Zone, off-street parking and loading shall be provided in accordance with the provisions of Article 5. - 16 - EXHIBIT B 1-1 Dreifuss Property Township 20 South, Range 11 East, Section 18, Tax lot 4300 LEGEND: Bend Mapping & Blueprint Aerial Photo Archives South County - Deschutes River Photo Dated: June 23, 1979 Exhibit B Page 2 of 3 • �++yy ATr owttrtuo Si .txc stn Dia • .1 • MORD OF INDIVIDUAL SEWAGE DISPOSAL SYSMVI NOTICE FRELtMINAIEY INSPECTION OF SITE REQUIRED TO RE COMPLETED SY INSTALLER: Name of property owner..__________________. __._ installer's ttame__(4I10' tailing address_ 1253 _0Z-UOnA fit ' SE...4•Sewagge-Cesspool license No Enact tocattors of tuo;usEed sewage disposal system Ores `1(302I'etephone numb? • 0 I)) BWIness address Pinttft Number C144335.440 Dat Total number: Living units. V—. Aedr ems Baths 8asemsnt: Yea p Ko 0 Water supply: Public system p Community system p Weii A Sprins D Cistern Septic tank: Materirtt:___ _f _ _ .___ Total liquid caperity i.____gal. Liquid depttt________.it. No. of compartments . Imo., Diameter-- _fit. Inside kWh ft. Inside nidi} ft. Distance tram: Wel). ratings. or cistern_,_ ._.ft. BuEdtng fauttdntior ft. Subsurface tile or perforated pipe disposal field plaS44, Distribution box: Yes VIL No p Length each line: Total Length: Width of trench - Total square footage: Distance between lines: . . . 2 ft. tR46 R. . _ Filter material: Ty oe C i st!c _Size_S__.Ze.... s e.in. SKETCH.—* SHOW ?HO FOLLOWING __-Location of lot boundaries —All permanent structures _Location of septic tank ._Location of disposal field _Stsnw. measurements as requested above tit! distance from foundation to septic tank. etc.1 •..•'Alt tp • t..utlll fuzz Other: Distance of sub -surface or other type system from: weft .._..ft. Spring R. Cistern _ft. Water Ilyttv f!. :Nearest: River 160 ft. Strew+++ _..h. Lake f Neatest tot line: tr^ront SIde Rear ...ft. Nearest building fotmdattan___. / ft. Depth of fitter material under Depth of filter material over tile__ tn. - GO' • r t t1 I 1 sof j J f/ TO 88 COMPLOtEa itrY bf3sCHUISS Cttflfit9 NV*t tH alttil�f9�:MINT«-t► ails hate of preliminary site approval Date nt final inspection HOT :+;:proved giro a —f1on tR Aftrthrunif Felt condition! ob etved ... ApptovttJ0_- 2J -"T !d _..Conditional maul NOM ��k��slfr►tf Qa tnpy—Ittttttlt! EXHIBIT C January 15, 2008 To_Whom It May Concern: My name is James Cate. I am a long standing resident of Oregon Water Wonderland. t was the instigator and one of the founding members of the Neighbors Club as well as the Deschutes River Vector Control. I worked diligently at developing the Road District for this area, establishing current paving, etc. I was also involved in establishing the Mail Box Standards as well as the initiator of the "No Shooting" ordinance still in place. I would mention, also, that I built the buildings that house the Neighbors Club and the Road District as well as the Vector Building. I present this detailed introduction to clearly establish that I am deeply dedicated to the long standing and ongoing protection, as welt as progress, of the area as a whole. I have been an owner and resident since 1976. Mr. Tucker and I bought lots 1 & 2 in the fall of 1976 (1&2 being the adjoining properties known as 17254 and 17266 Satterlee Way). In 1977 we built a boat slip on his lot, but realized in short order that this was not a suitable approach. We replaced it with an over the water boat dock in 1978. This dock I am describing is the boat dock under scrutiny at this time. in 1980, a portion of the top boards were removed to facilitate the rock work we did all along the banks of both my property, where I had since built a home , as well as Tucker's lot to prevent erosion. When this project was finished we found that the narrower dock was still just as functional for all boating and fishing activities without projecting as far into the water way, and it continued in full use in this form for many years to follow. In 1994 Mr. Tucker sold the property of discussion to me. It was the perfect extension to our home and place of residence next door. It allowed us the extra space for our many friends and visitors to recreate along this beautiful river! And I assure you that this property AND boat dock continued under full use and enjoyment, and were the stage for many happy memories. I would add that not long after we were able to purchase the additional property, we started having problems with increased numbers of rafters who would spot this dock, and realizing that there was no home behind it or overseeing it, would tie up, climb out, and defecate on and around the dock. As you can imagine, this was frustrating and concerning from many aspects. We decided at that time to remove more of the top boards making the docking location Tess noticeable as you float around the corner. The quick drop off at this stretch of river bank make the narrower dock still completely usable with a minimal overhang ( even for larger boats). We continued to enjoy the river, tie boats and fish from this location for many years to follow! In September of 2005, we sold the home we had built and enjoyed for so many years, along with the adjoining lot, to Mr. Ron Cunningham. We were so relieved to find someone who loved these two properties as we do, and clearly intended to give them the TLC they require on an ongoing basis. We visited this last fall before our winter journey south, and during this visit we saw the maintenance modifications that had been completed on this dock. We were pleased to see that there was, most certainly, improved safety and stability. We thought it wise that they, too, felt that a narrow version of the dock is perfectly suitable and less vulnerable to log snares, etc. I know Mr. Cunningham, and I have seen the project in question. I believe that his actions were most certainly with good intent and in good faith execution of the grandfather clause and maintenance/upkeep of the dock that was present and in use on the property he purchased from me. I hope that this brief history brings clarity to questions at hand. if need be, l can be reached at (928) 305-6094. Sincerely, r& - James Cate Exhibit C Page 1 of 2 EXHIBIT C October 1, 2009 To Peter Dreifuss: I understand that you purchased the lot that I used to own from Ron Cunningham. That lot address was 17266 Satterlee Way. It is a beautiful piece of property. You have asked that I provide you with whatever history that I may have on this lot. I had been an owner and a resident since 1975. Mr. Tucker and 1 bought the lot and the adjoining lot In the fall of 1976. We then applied for an RV septic permit and it was approved. We then immediately built the bathhouse as an accommodation to our friends that would visit us with their motorhomes. This worked out well and the system was used not very often. I think that the tank was some 1,000 gallons but am not sure. As I recall, I had checked and found out that the county didn't care if I built this bathhouse as long as I had an approved septic. In 1977 we built a boat slip and then replaced it with a boat dock in 1978.1 understand that the boat dock is no longer there. That's too bad. In 1994 Mr. Tucker sold the property to me. It was a perfect setting of our home and place of residence. It allowed us to have all the extra room for our many friends and visitors to recreate along the beautiful river. We have many fond memories of our times and visitors during our ownership. We hope that you too will enjoy this beautiful setting on the Deschutes River. Sometime in 1977, we put in a gravel road to the river's edge and had It lined with lodge pole timbers. This worked out really nice. In September of 2005, I sold the lot to Mr. Cunningham along with the lot that has the home on it. I hope that this answers all of your questions. Best of luck to you and I hope that you have many years of enjoyment on this property. Sincerely, 94 - James Cate Exhibit C Page 2 of 2 Inst. Grantor Type Patent United States Deed Bessie Hearn, et al (sole heirs at law of Martin J. Main, deceased) Deed L.V. McMahon W.D. W.R. Franks & Esther G. Franks B&S Whispering Pines, Inc. B&S Whispering Pines, Inc. W.D. Blanche C. Tucker Q.C. James E. Cate & Fannie K. Cate W.D. W.D. James E. Cate & Fannie K. Cate as Trustees of the James and Fannie Cate Trust and Arthur B. Cate & Lida M. Cate as Co - Trustees of the Cate Family Trust and Joseph Escobedo & Nellie J. Escobedo Ronald C. Cunningham EXHIBIT T Grantee Martin J. Main L.B. McMahon Date Recorded 8/29/1927 9/8/1941 W.R. Franks & Esther 3/26/1958 G. Franks Whispering Pines, 9/12/1969 Inc. Security Bank of 4/23/1974 Oregon, as Trustee for Whispering Pines, Inc. Sherman I. Tucker & 11/22/1976 Blanche C. Tucker James E. Cate & 1/4/1994 Fannie K. Cate (Undiv. 1/3 Int.); Arthur B. Cate & Lida M. Cate as Co - Trustees of the Cate Family Trust (Undiv. 1/3 Int.); Joseph Escobedo & Nellie J. Escobedo (Undiv. 1/3 Int.) James and Fannie 10/21/1996 426 2390 Cate Trust, James E. Cate and Fannie Kay Cate, Trustees Ronald C. 9/29/2005 Cunningham Book Page 44 310 60 385 118 460 166 828 205 473 241 222 324 2473 Peter A. Dreifuss & 8/27/2009 Sandra Bovenzi Dreifuss Instrument No. 2005-65919 2009-36957 Exhibit T Page 1 of 23 • June 9, 1992 EXHIBIT MM Community Development Department Administration Bldg. • 1130 N.W. Harriman • Bend, Oregon • 97701 (503) 388-6575 Blanche Tucker 6508 Devon Avenue Salem, Oregon 97306 Re: Septic Permit #S 32349 17266 Satterlee Way, Bend 20-11-18C-4300 Dear Ms. Tucker: m Planning Division Building Safety Division Environmental Health Division You recently submitted a septic authorization notice permit application for property at the above address. On May 29, 1992, I completed the on-site evaluation of this lot to determine if the existing system appears adequate to serve the purpose for which your application is made. A part of the evaluation is to determine the location of the ground water elevation in the soil. The enclosed "site evaluation field inspection form" will show a high ground water elevation to 18 inches and 19 inches from the ground surface during a wet year. The Department of Environmental Quality rules identify these soil conditions associated with saturation. • (Ref. OAR 340-71-220(1)(d)(A) and 340-71-220(2)(b)(A). In lieu of these rules, OAR 340-71-260(1) allows alternative systems. However, none of the alternative systems, including the sand filter system, can meet the rules. (Note - Ref. OAR 340-71-290(3)(b)(8). Your existing septic system was installed and a certificate of satisfactory completion issued October 20, 1976, as specified in OAR 340-71-200; prior construction permits or approvals. A certificate of satisfactory completion is valid for one year, for connection of the system to the facility for which it was construction. (Ref. OAR 340-71-175(8)). After the one year period, rules for Authorization Notices or Alteration Permits apply, as outlined in OAR 340-71-205 and 340-71-210. The information gathered from our files and the on-site inspection will in the judgement of Deschutes County • Exhibit MM Page 2 of 7 EXHIBIT MM Ms. Tucker June 9, 1992 Page 2 Environmental Health Section; "proposed operation of this system would cause pollution of public waters or create a public health hazard, therefore system installation or use shall not be authorized." (Ref. OAR 340-71-130(1)). If you wish to have our evaluation and decision reviewed, you can do so by submiiting an application to the Department of Environmental Quality in writing within thirty (30) days of the authorization notice denial, and be accompanied by the denial review fee. (Ref. OAR 340-71-205(10)). The Bend DEQ office phone number 388-6146. If you have further questions, please feel free to contact my office. I can usually be contacted before 9 a.m., Monday through Thursday at 388-6575. Sincerely, ENVIRONMENTAL HEALTH DIVISION Roger W. Everett, Director Don Rice, R.S. Sanitarian RWE/DBR/lel Enclosure cc: DEQ Regional Office Exhibit MM Page 3 of 7 EXHIBIT MM (� SITE EVALUATION FIELD INSPECTION FORM APPLICANT SUBDIVISION 0 UJ W SITE EVALUATIOF # DATE S 9/ Fz S -3A3`. Z B S 7 PARCEL SIZE 1. 3 EVALUATOR: D• . Q T d o R /( S /FC- TL Y300 SUITABLE SKETCH/NOT TO SCALE UNSUITABLE 36/.3,f- 37?,P3 130' L9 System type approved: Absorption facility: Initial Min. Size Max. Depth Replacement Min. Size Max. Depth Tank Size Sewage Flow Special Conditions: � e r, eJ /Y a ff l =50 Exhibit MM Page 4 of 7 EXHIBIT MM SI. EVALUATION FIELD INSPECT'. FORM APPLICANT Bfaf7C.4e TOC., key— SUBDIVISION /0 LAI EVALUATOR: D e IR • Depth Texture 6 — 1 9 — 1 Cr, IqZ--too 4 Landscape notes Slope 0 Other site notes Comments: Color /0 SITE EVALUATIp # - ••33(1," DATE _c/aq 92 L 0.2 B c- 7 T R11 sherc TL 43 o o Notes on mottling, roots, structure, layer limiting effective soil depth, % loose rock, etc. P7 P...3c1'7: "111. * I Aspect /re-". .5-66 5 7, .5"-- VA._ .5- ?, -,74•41-7"e a) '7- se- ;/1.2 ,,,, ,.ey- ro 40 " ..,_ a4e Groundwater Reason For Unsuitability: (Include Rule Reference) s 3,1D -7( -27 o (4 Less 3,1(0 - 71-A9 (-3) (t) (A) " J55 oc‘ic, w +Pir ft IF 1 Exhibit MM Page 5 of 7 SC 13,14-t ee 0 „ C.0111"4 Oti (E c 0 y;o • u. .) . ExTw° B i ,i- _67 i_c-1 1- : V cle r gitm og ro,si, si.:0,r/a. 1. Lt)' it ol ift il O. 4- 077' c as i ____ _ I . . .y.' , i • A • ',.... .... _ ti . , —..- ,N. '"-----:_z, - o) th4 ,r - v.. CN.4 v 13a(I) 2 JO 12-169oo ey 0-0 - 14111 cr r 4..11-A 51 ‘• 0 ".• --1;) P, V NUM 10 NI COMM) sr I I MI Nand at ,...1ely' . tri! .5.1162170411*t_a.;%r GNU' adr...IrsflILtiegia >,.. Aa ._ S Mutt Lein!.e sl mowed anile NDN *ism _. ..., ._v,,y.. wor. �. .. .tato.-. VL Ilsolmems Nam Good ANN "plate ; ; , • <'arr.t.lrfly spins ; i 1M" PINI, Taletiat ....�_,....��.� «.�.... , .., _,... , . t.. r eas10arb• '1i. .. L. , Tw ,i, _ ,. 1lhtaace hirsa .W.4;iaiisata. rx client 'adbettiaci.bldar pteldnird t,,/s.+tiwrrd Obtrilatint,lors. Ta." No Li L. *Nth tie <.. ». TAN WWI! Width el ttasrb_ , Tidal game ',ANN , blpsnts itt.we tinct Ills.--- tad ©t s .SQ. Oltsr.til r a.b swipe! 0 taw IsittNNING M: 041f11a. ____..1. VON ammo NI -A5 . ,..N,• Noma Irl lire Vtarl.- -- • NO, ttiattt �..i. Nemo tlattdtltt a...w..t.r .•- [ttyrt! al *M r ttttwfel ander tar- — —AL Mho tos.erit,at 1 to't`e r., ..:]4M: .M 4 yM}i. L LIMN al fiber eai1Yl gni.�.. . tar ...b lt$0W WO FOLLOWING ... Latins nr d bstudaries prstn+roars. sanctums .....Location .::ache bel ..lalrattem ar dimer ant Grid Show ninaouen+r.rx Ion tegnrty..1 :Mori• '1. thilarien fr.mi kwnlat'µtn In *Il - tack. fir a ,.r 5 we TO SI cOMKST/a ST hate at per orinui 1 ona ai,prt$J rh�l is ipn.1 on NOT siere.wri 14311 ilIKS ITN* o oulmitaa i 1 156' .• r;•.._•• •`":.:"k i^"..�0ll.. ct ;�,.� .+ auus�in�llr1�94 NSii.TN sOPENI'va v••fiMr Li41/11 ttali deeddL.F ehoretts .....w.. ......cow. wa aw••r•d..14.44at rt. .tWMMitr auOrwrf EXHIBIT KK HIAA engineers • planners • surveyors Hickman, Williams & Associates, Inc. Elizabeth Dickson Hurley Re PC 747 SW Mill View Way Bend, Oregon 97702 Re: Dreifuss Deck CUP Dear Liz, September 29, 2015 I have completed a limited structural assessment of the Dreifuss decks located in the flood plain at 17266 Satterlee Way in Bend. The assessment was limited to reviewing the capabilities of the deck structures to withstand forces created by stream pressure and buoyancy during a 100 year flood event. It included reviewing the site plan exhibit and other documents your firm provided, visiting the site to take measurements, sketching the structural schematic, looking for evidence of existing anchorage, analyzing the data, and then developing a possible solution. The structural schematics with basic dimensions are included on page 1 of the calculations that accompany this letter. The underside of each deck is effectively protected from pests with lattice work. Unfortunately the lattice work also prevented me from investigating for evidence of concrete anchorage near the supporting posts. Without that access, I was limited to attempting to lift corners of the deck to test for anchorage. I was able to lift one corner on each deck by hand. The calculations that accompany this report arrived at a potential buoyancy force on the north deck of approximately 3882 pounds. When the weight of the deck material is subtracted, the net potential up -lift force is 1208 pounds. The numbers for the south deck are very similar. To resist the potential up -lift force, additional anchorage will be needed. One solution would be to install four concrete anchors measuring 12 inches in diameter and 24 inches deep under each deck. A sketch detail of the anchors is included on page 7 of the calculations. The detail also specifies the straps that will be needed to connect the anchors to the beams (Simpson MSTI72) and the tie -downs that will hold the joists to the anchored beams (Simpson S/H1). The locations of the anchors proposed in this solution are shown on page 8 of the calculations. The anchors appear under the centerline beam of the north deck. When the anchors, straps, and tie -downs are installed along that center beam, the existing joists will hold the north and south edges down. Because the south deck is shorter and only has three beam spans, the four anchors are shown on the perimeter. Please contact me if you have any questions. Matthew K. Steele, PE, WRE 62930 0 B RILEY ROAD, SUITE 100, BEND, OREGON 97701 PHONE: 541.389.9351 FAX: 541.388.5416 Exhibit KK Page 1 of 10 1 1 Sun Country Engineering & Surveying, Inc. 920 SE Armour Drive Bend, Or 97702 (541 382-8882 September 25, 2015 Hurley Re Liz Dickson 747 SW Mill View Way Bend, OR 97702 Re: Dreifuss Shoreline Surveying Liz, AS part of our site investigation and surveying on 16 September, 2015, we measured the "shoreline" along the frontage of the subject property. More specifically, that horizontal point at which the water surface exceeds the elevation of the land. The linear measurement of the resulting line created from a series of points collected at interval results in 209.5 feet of shoreline. Our work is detailed on the revised site plan attached and included. In comparison to the Freshwaters map, dated 21 November, 2014, our measurement differs by 12 some feet. Several factors can certainly affect measurement of such a line. The actual water surface elevation determines that horizontal point on the land that becomes submerged, so any variation in water level can affect the measurement. Judgment as to where to collect each data point that will make up that line can also be a factor in the resultant line. Freshwaters conducted his measurements in snow and frazzle ice, which I'm sure made point selection and collection difficult. As you can see from both maps submitted, this line consists of multiple points, with many changes in direction. Freshwaters line has 63 segments, where as the Sun Country line has 183. There are segments of the Freshwaters line on each end and under the dock that no data was recorded, possibly due to the water level or the ice and snow present at that time. We were able to negotiate the shoreline on each end and gather data points between the end of those straight line segments, and could see under the dock enough to slip a machete blade between the dock boards, and determine the water's edge location under the dock surface, resulting in additional data points in that line segment. These additional points, and the fact we sampled three times more points along the entirety of the line, can in itself be the difference in measurement. As always, should you have any questions or require additional information, just call. Sincerely, Tim Weishaupt, P.E. OR 58,927 P.9ACAD200817733-Dreifuss!docs177733-Shoreline.doc Page 1 of 1 CDD COVER SHEET FOR LRL 09/07/2005 11:21:13 PL 1 PAGES FILE ID 201024A015800PL20050907112113 TAXMAP 201024A015800 SERIAL 116870 DIVISION PL SITUS 55872 SHARP PL HOUSE# 55872 STREET SHARP CONTENT CU0578/DSL WETLAND NOT FORM & COF RECORD ID CU0578 LOCATED IN DATE FILE DESCHUTES COUNTY PLANNING DIVISION 117 NW Lafayette Avenue, Bend, OR 97701 (541) 388-6575 FAX 385-1764 CERTIFICATE OF NOTICE FILE NUMBER(S): CU -05-78 DOCUMENTS IVIAILED: Wetland Land Use Notification Form, NWI Map ..& Application Materials I certify that on this 7th day of September, 2005, the attached Wetland Land Use Notification Form, NWI Map & App. materials, Dated September 6, 2005, was mailed by first class mail, postage prepaid, to the person(s) and address(es) set forth on the attached list.. • DATED this 7th day of September, 2005. COMMUNITY DEVELOPMENT DEPARTMENT By: Division of State Lands Wetlands Program 775 Summer Street NE, Suite 100 Salem, OR 97301-1279 Quality Services Performed with Pride WETLAND LAND USE NO i li i ICATION FORM (this form is to be completed only by planning department staff for mapped wetlands/waterways) DEPARTMENT OF STATE LANDS WETLANDS PROGRAM 775 Summer Street NE, Suite 100; Salem, OR 97301-1279; (503) 378-3805 1. County: DESCRU1 S C—C)(5 (4 Local Case File #: C O — °S— 7-5 City: DSL File #: WN (completed by DSL Staff) Responsible Jurisdiction: 0 City 2.County DSL Project #: (completed by DSL Staff) 2. APPLICANT: j-% m Goy LANDOWNER: _7i w.. 7 flWhoe* r Weare name 53 H 53 kola L_l 534 S3 /mi.<tad.*- 45dzeY mailing address mailing address mailing address LA e �r c�R a "-x-3`1 city, state zi (5N( ) 53 - Soo phone 3. LOCATION T ao R (D S ciZ� (I'J- Tax Lots) / 5 800 Address (street/city) 155 8 4Z 5 tiPite? eL.Pc ebp.so NWI quad map name /-INNS 13 u tTS Attach all the following (with site marked): • LWI / NWI Map (if no LWI map) • Parcel Map • Site Plan (if any) If applicable attach: Mpther AeeCtu91rt.9)0 Fa20, 44i40 aergt dz-nJA:- 4. SITE INFORMATION LWI/NWI Wetland Classification Codes(s) PA e ( ? Adjacent Waterway (if any) _ SCAS-tec R'-. 5. PROPOSED ACTIVITY ❑ site plan approval 0 subdivision ❑ grading permit 0 planned unit development aconditional use permit 0 building permit (new structures) ❑ Other Project Description e(2+41.1V. 43 cs4i— Pc c.tC Completed by/Contact SGNyni4 mailing address Lao ec tZ o € i -323-3i city, state zip ( 5441 1536- Spa —4— phone Zoning /1A% f'Gla1a�1 Date /a.S Address 11 t— AS tf‘s L V Erre" Phone: (5'1 ) 3 i s I DSL RESPONSE ❑ A removaI-fill permit is required from the Department of State Lands ❑ A removal -fill permit will be required when the development project proceeds ❑ A removal -fill permit may be required ❑ A permit may be required by the Corps of Engineers (503-808-4373) 0 Information needed includes: ❑ A wetland determination/delineation report (Consultants list enclosed) 0 ❑ State Permit # 0 was issued ❑ has been applied for ❑ No removal -fill permit is required for the described project if/because: Comments: ❑ On -Site Visit By: Date: Response completed by: Date: * If the project is changed to involve fill or removal from the wetlands area, a state removal -fill permit will be required httpi/www.oregonstatelands.us/wetlanduse.htm August 2004 NEL/4 SEC. 24 T20S R.10EWM. Goa., o.....058708. 830C.808.800, WM, DESCHUTES COUNTY 1100700, 20 10 24A 9C8 0 18 35$ O41, , 100 c'S'44,4(6.4 9 20. '71,9 At. t94 1 1 4 g 1.68 UAW O. afrO 4gGZ:fr: 6 22 %.1. 59 24 Se. Ito p AO 10 240 SS8Z IQ& e pcpcc rit,do -05 - 8 20 tb 24A 4. -040, 47, 7rti \ • _ _ 1 flt'gt 14 tx1 4.1 rdl 0.4 0..A 0.4 Sti C.1.1. 44 ' '� Aa s4;:tW-st,w2 QrA a E., rw �fl4 'Er vao� atq£ tt ia283t ,UIJ SZI = ?l drou= v „9frat0Us =Q F anN tssfAzu 0 ?..1Z1171 0 L03 Or 14 LOZ' z4 WFE"A� ,�aG 1•'-Titt 4-• tol 1.0z* a i a IZ Tal �0 a a kla oc.'et W W et .n n7 WW ti 8/18/05 Dear concerned, Regarding a private dock at 55872 Sharp Place on the Deschutes Ri I have been asked to act as general contractor for the construction of a private dock for Jim and Dale Hardt. The river frontage of the property is approximately 208 feet, and therefore exceeds the minimum requirement for river frontage for a private dock. The lot extends to the middle of the river channel. The river bankat the dock location is firm and dry. The location of the dock was chosen because the bank is firmer there, held in place by the roots of two. adjacent lodgepole pines. The water current at this location slows because of a small grassy area upstream. The boat d8ck I.prwpose will be -a floating platform 20 feet: long along the flow line of the river, and 8 feet . , • wide. This will fit within the 160 square foot maximum area allowed for docks w this section of river. The .' walkway leading to the dock will be 4 feet wide and 6'6" long. The dock will not extend ;into the river - channel any further than is necessary to be able to operate a boat from the Iocationat medium to high flows. At winter flow levels, the dock will sit on the mud at the bottom of the channel on its floats. The river channel at this location is wide enough so the dock will not interfere with navigation on the river. No boats will be launched at this site. Instead, the established launch facility upstream will be used. Many docks on this section of the river have failed and become unusable. I have observed the reasons for their failure, and designed docks that are durable, attractive, and serviceable. By using modular steel construction, an individual section of dock can be repaired n place, or removed and taken elsewhere to be repaired. The deck of the dock will be constructed of Tree,: which has proven to be highly inert. It will not rot, warp or fail as wood will, and requires no chemical sealers or paints. The steel frame of the dock will be powder coated which will make it extremely durable and inert The concrete piers will be on dry land rather than in the river channel, and therefore will not interrupt river flow or erode and become dislodged The top of the concrete piers will be below the surface of the ground so that vegetation can overgrow them. The floats will consist of multiple soft drink concentrate barrels that will be cleaned and sealed, and can be replaced individually if they fail. They are made of durable, inert polyethylene, the same material used for canoes and kayaks. All possible care will be taken to insure that the placement and design of the dock will allow free flow of the river and free movement of wildlife in the location. I have built two other boat docks a year ago downstream from this property, and have observed that vegetation has come back to its natural state at those sites, and that the river bottom has shown virtually no change as a result of the structures. Small fish have been making use of those structures as shelter, as have several species of waterfowL A blue heron has chosen to roost on one of the docks almost daily. Two large concrete piers will be poured 3 feet from the river channel. This will be the only invasive part of the project. Awt .. ,.:... c:: ly 2 yards of material will be removed, and 2 yards of concrete put in place. All digging will be done by hand. Straw bales will be used to catch any sitt or concrete used in the project and to protect the river from any runoff; Concrete will be pumped to the site from a higher location to protect the river bank from damage. Thank you for your consideration, DESCHUTES COUNTY PLANNING DIVISION 117 NW Lafayette Avenue, Bend, OR 97701 Phone: (541)388-6575 Fax: (541)385-1764 http://www.codeschates.or.us/cdd/ LAND USE APPLICATION INCOMPLETE APPLICATIONS WILL NOT BE ACCEPTED 1. Complete the application form and provide appropriate original signatures. Include a copy of the current deed showing the property ovmers. 3. Attach correct fee. 4. Include a plot plan that shows all property lines and existing and proposed structures, parking, landscaping, ,lighting, etc., 5. All applicable standards and criteria must be addressed In writing prior to acceptance of the application. Detaql4 clPscriPlIons, maps and other relevant Information must be attached to the application. TYPE OF APPLICATION (Che one): APPLICATION FEB:. CONDITIONAL USE (CU)_ TEMPORARY USE (TU). SETBACK EXCEFTION(SE) ' PARTITION (MP) SITE PLAN (SP) OTHER: *4. SUBDIVISION'(TPLVARIANCE (V) APPLICANTS NAME (print): Jim 6vy PHONE: ($11 )4L7P"' rioa, MAILING ADDRESS: $1 /I itisaic.ex 'Ay CITY: LA "Pe STATE: M ZIP: 4 77') PROPERTY OWNER'S NAME (ff different): I 4. PA IP Hew e PHONE: ( , MAILING ADDRESS: fi.ft iepa a-cliteLf CITY: STATE: ZIP: • • 1. PROPERTY DESCRIPTION: Township 261 Range /0 Section 24/4- Tax Lot /570.0 • 2. PROPERTY ZONE(S):4e /0/ AP/VAI LjP120PERTY SIZE (acres or sq. ft.): ge 3. LOT OF RECORD? (STATE REASON) .6/ it/04.7--r-e- -MI-IMF I-- P.,- 4. PROPERTY ADDRESS: 4-5-871" 54re.,- &X." / 1'7707 5. PRESENT USE OF PROPERTY: 6. EXISTING STRUCTURES: '1°"Lt. df- ok.z.A./ 7. REQUEST: Pernik Ar 4.401 ;Itallifolchog dOld• 8. PROPERTY WILL BE SERVED BY: Sewer On -Site Disposal System ,/ 9. DOMESTIC WATER SOURCE: it tjt APPLICANTS SIGNATURE:..: ii DATE: sib For PROPERTY OWNER'S SIGgTURE (if different)1%"1/44YATE:h f : AGENTS NAME (if applicable): ilf/1. PHONE( ) MAILING ADDRESS: ..09/ ICIRIEted4 LAy CITY: A 4.44 STATE: Oil ZIP: /777i If this appllcatlon is not signed by the property owner a fetter authorizing signature by the applicant must be attached. 115/01 CDD COVER SHEET FOR SLB 03/19/2008 09:48:52 PL 1 PAGES FILE ID 211003D016200PL20080319094852 TAXMAP 211003D016200 SERIAL 126840 DIVISION PL SITUS 16285 BEAR LN HOUSE# 16285 STREET BEAR CONTENT CU0815 App. Materials RECORD ID CU0815 LOCATED IN DATE FILE Cover Sheet Identifier AHJKMTWX DESCHUTES COUNTY PLANNING DIVISION 117 NW Lafayette Avenue, Bend, OR 97701 Phone: (541) 388-6575 Fax: (541) 385-1764 http://www.co.deschutes.or.us/cdd/ LAND USE APPLICATION INCOMPLETE APPLICATIONS WILL NOT BE ACCEPTED 1. Complete the application form and provide appropriate original signatures. 2. Include a copy of the current deed showing the property owners. 3. Attach correct fee. 4. Include a plot plan that shows all property lines and existing and proposed structures, parking, landscaping, lighting, etc. 5. All applicable standards and criteria must be addressed in writing prior to acceptance of the application. Detailed descriptions, maps and other relevant information must be attached to the application. TYPE OF APPLICATION (check one): APPLICATION FEE: t tA50 4 00 CONDITIONAL USE (CU) _x_ TEMPORARY USE (TU) _._.._ SETBACK EXCEPTION (SE) PARTITION (MP) _ SITE PLAN (SP) _ OTHER SUBDIVISION (TP) _ VARIANCE (V) APPLICANT'S NAME (print): James Guy Construction PHONE: (541) 390-7558 MAILING ADDRESS: 211 NW Georgia Ave CITY: Bend STATE: OR ZIP: 97701 1. PROPERTY DESCRIPTION: 211003D016200 and 211003D016100 2. PROPERTY ZONE(S): WA, RR, LM PROPERTY SIZE (acres or sq. ft.): .50 acres + .49 3. LOT OF RECORD? (STATE REASON): DRRH Unit 6, Lot 73, Block 63 4. PROPERTY ADDRESS: 16285 and 16295 Bear Lane 5. PRESENT USE OF PROPERTY: Vacation homes 6. EXISTING STRUCTURES: Single family homes/ temporary boat dock 7. REQUEST: New community boat dock 8. PROPERTY WILL BE SERVED BY: Community sewer 9. DOMESTIC WATER SOURCE: Community water N J&WI 5kt• 3ao•tS5$ APPLICANT'S SIGNATURE: DATE: 3/13/08 MAILING ADDRESS: 211 NW Georgia Ave. CITY: Bend STATE: OR ZIP: 97701 SCANNED MAR 19 2.008 �! Dear Concerned, We have hired James Guy to obtain permits for and build a community boat dock at our properties located at 16285 Bear Lane and 16295 Bear Lane. We authorize Mr. Guy to obtain permits on our behalf. Please contact Mr. Guy at (541) 390-7558 with any questions regarding the application, and mail all correspondence to him at 211 NW Georgia Avenue, Bend, OR 97701. AIL ! in in Ler 7-a-0 i Signed Dated Authorized representative of Deschutes River Winds 4 LLC NJk, / vl I" 1Afi, �,r�us 12 iZ 1 Signed 1 Date Authorized representative of Milford M Mills and Eileen J Mills Living Trust u/a dtd April 1995 Deschutes County Geographic Report General Account No: 2110030016100 Owner: MILFORD M & EILEEN J MILLS LIVING TRUST MILLS,EILEEN 3 MILLS,MILFORD M Situs Address: 16295 BEAR LN Mailing Address: 16295 BEAR LN BEND OR 97707 I GIS Computed Acres: 0.56 Prop 416 Class: Maint 4 Area: Value 01 Area: Zoning: FP LM RR10 WA Subdivision: DESCHUTES RIVER RECREATION HOMESITES UNIT 6 PART Block: 63 Lot: 72 Description: View County Code FLOOD PLAIN LANDSCAPE MANAGEMENT RURAL RESIDENTIAL WILDLIFE AREA Land Use Permit Number: Application Date: LM98213 10-05-1998 CU0782 I Inside UGB: Sales Date: Page 1 of 3 ©©[UI7 Property Land Use Information DIAL 1 Survey 1 Report 1 Tax Ma Code: Price: Map displaying tax lot 211003D016100 Status: F V Legal Lot: 1Y Inst Num: FB: Total Sq Garage Year Ft: Sq Ft: Built: 131 1556 440 1993 Last Sale: 20070323 06 $ 0 2007- 17235 Grantor: MILLS,MILFORD M TRUSTEE ETAL Grantee: MILLS,MILFORD M & EILEEN JTfEES http://lava5.deschutes.org/mox52/apps/index.cfin?fuseaction=reports.landuse&profile=Lan... 3/13/2008 REGISTERED PROFESSIONAL LAND SURVEYOR MAP SHOWING ORDINARY HIGH WATER LINE ON LOTS 72 & 73 BLOCK 63 DRRH UNIT 6 PART I, BEING TAX LOTS 16100 & 16200 OF MAP 20 10 03D, DESCHUTES COUNTY, OREGON 1 OREGO SCOTT C. FREWATERS JANUARY 15. 1987 2253 RENEWS 12/31/2007 44? SCALE 1" = 30' 0 D6111-16 V‘ FRESHWATERS SURVEYING, INC. SCOTT C. FRESHWATERS, PLS, PRESIDENT P.O. BOX 4524 SUNRIVER, OREGON 97707 (541)593-1792 SEPTEMBER 17, 2007 #5939B CLIENT: JAMES GUY ORDINARY HIGH WATER LINE LINE BEARING HORIZ DIST L1 N57°12'38"W 7.49' L2- N63°2T11"W 10.12' L3 N54°26'49"W 4.91' L4 N59°37'28"W 7.98' L5 N55°09'53"W 8.21' L6 N42°36'48"W 8.55' L7 N62°46'13"W 21.96' L8 S67°42'S0"W 5.34' L9 N55.13'58"W 6.10' L10 N21°08'30"W 3.42' L71 N42°31'18"W 6.87' L12 N88°27'04"W 3.05' L13 N88°27'04"W 0.90' L14 N56°13'48"W 4.60' L15 N25°23'58"W 3.28' L16 N66°50'34"W 15.08' L17 N79°28'19"W 8.29' L18 N61°o3'orW 5.24' L19 S73°30'34"W 5.73' L20 S89°25'54"W 5.03' L21 N61 `42'05•W 18.43' L22 N56°27'09"W 10.12' L23 N67°26'12"W 8.49' L24 N80°06'19"W 7.46' L25 S81 °45'42"W 4.43' MapOptix 5.0 Interface dNatation • • 1 [1 1 • if • Page 1 of 2 _ ; ./*/ Land Infor _J I r:Soopinglt 20012iXt9 0 _.:Erars Trs Rawred: Tabular Results . . ,,,,, • UF1 http://lava5.deschutes.org/mox52/index.cfrn?action=mox52_if subscriber&screenHeight=... 3/14/2008 9'' i 6 i 4' Direction of river f tow 20' Proposal and contract 3/13/08 To Mel Mills and Deschutes River Winds 4 LLC From James Guy 211NW Georgia AV Bend, OR 97701 Ccb#113006 1 propose to provide the materials, labor and equipment to perform the fol lowing work at 16285 and 16295 Bear Lane: Obtain permits for and build a floating boat dock measuring 20' x 9' to be constructed of welded aluminum and decked with Elk composite decking. The dock will be accessed by a 4' wide by 6' long gangplank attached to a concrete footing on the river bank by a set of metal stairs. I will submit the application within 3 days of receiving the deposit and permission letter, and will install the dock within 10 days of receiving permits. All work will be done at a cost of $9000 including the cost of permits. Payments to be made as follows: $4500 deposit, $4500 when work is completed. If the application is rejected for any reason, all unused moneys will be refunded. Accepted by Signature on file for previous application for this project. Dock Construction Procedure Dear Concerned, I have been hired to place a community dock at 16285 and 16295 Bear Lane. An application for permits to build this dock is being processed. My plan for construction of the dock is as follows: Once permits are obtained, I will drive two 4" diameter steel pilings into the riverbank. All care will be taken to prevent discharge of any material into the river. There will be no fill or removal. The dock sections will be built in my shop in Bend. The walkway from land to the rivers' edge will be hand -carried into place, and will be attached to the floating dock by assembling the sections at the hinges. The floating section of the dock will be launched at the boat ramp upstream at LaPine State Park, and floated into place. Merina Christofferson of ACOE has determined that my design does not require a 404 permit, but likes to be notified when I make an application. Tom Walker of ODFW has already confirmed the free flow characteristics of my docks of this identical design, but will want to make a site visit, as will Molly Chaudet from the Forest Service. Thank you for your consideration, James Guy 3/11/08 Dear concerned, Regarding a community dock between 16285 and 16295 Bear Lane : I have been asked to act as general contractor for the construction of a community dock for Deschutes River Winds 4 LLC and Deschutes Milford M. Mills. The cumulative river frontage of these properties is approximately 155 feet, and therefore exceeds the minimum requirement for river frontage for a community dock. The dock will be built on the property line between properties. The proposed dock site was chosen because the River has a flat shelf just below the high water mark where the dock can safely rest when the river is down in winter. This site also is noted to have eddy hydraulics which will not apply as much force to the dock as the river would at other sites on the property. This will also minimize erosion beneath the dock. The boat dock 1 propose will be a floating platform 20 feet long along the flow line of the river, and 9 feet wide. This will fit within the 320 square foot maximum area allowed for community docks in this section of river. The walkway leading to the dock will be 4 feet wide and 6 feet long. The dock will not extend into the river channel any further than is necessary to be able to operate a boat from the location at medium to high flows. At winter flow levels, the dock will sit on the sand at the bottom of the channel on its pontoons. The river channel at this location is 122 feet wide, so the dock will not interfere with navigation on the river. No boats will be launched at this site. Instead, the established launch facility upstream will be used. Many docks on this section of the river have failed and become unusable. I have observed the reasons for their failure, and designed docks that are durable, attractive, and serviceable. By using modular aluminum construction, an individual section of dock can be repaired in place, or removed and taken elsewhere to be repaired. The deck of the dock will be constructed of composite decking, which has proven to be highly inert. It will not rot, warp or fail as wood will, and requires no chemical sealers or paints. The aluminum frame of the dock will never require paint. The single concrete pier will minimize the actual footprint of the dock on the wetland. The top of the concrete pier will be below the surface of the ground so that vegetation can overgrow it. The floats will consist of two welded aluminum pontoons with multiple chambers.. All possible care will be taken to insure that the placement and design of the dock will allow free flow of the river and free movement of wildlife in the location. I have built 4 similar docks on this stretch of the river, and have observed that vegetation has come back to its natural state at those sites, and that the river bottom has shown virtually no change as a result of the structures. Small fish have been making use of those structures as shelter, as have several species of waterfowl. My clients will work with Jack Williamson from ODFW to plant and restore the riverbank at the site. One large concrete pier will be poured 3 feet from the river channel. This will be the only invasive part of the project. Approximately 2 yards of material will be removed, and 2 yards of concrete put in place. All digging will be done by hand. Straw bales will be used to catch any silt or concrete used in the project and to protect the river from any runoff. Concrete will be pumped to the site from a higher location to protect the river bank from damage. Thank you for your consideration, Jim Guy 1 1 1 11 1 11 After -recording return to: WESTERN TITLE & ESCROW COMPANY PO BOX 3584 SUNRIVER, OR 97707 DESCHUTES COUNTY OFFICIAL RECORDS 2006011 f 41 NANCY BLANKENSNIP, COUNTY CLERIC 1 $31.°' test 1 06/05/200i 03:52:01 PH 0-0 Cnlml Stna3 PAN *0.00 *11.00 *10.00 10.00 Until•a•chaage is -requested all tax-statemente .ehall.be..sent to the following addreee: DESCHUTES RIVER WINDS 4, LLC NO CHANGE' STATUTORY BARGAIN AND SALE DEED MILFORD M. MILLS and BILEEN J. MILLS, trustees of the MILFORD M & EILEEN J MILLS LIVING TRUST, Grantor, conveysto DESCHUTES RIVER WINDS 4, LLC, GRANTEE, the following described real property: Lot 73, Block 63, of DESCHUTES RIVER RECREATION ROMESITES, UNIT 6, Deechutea County, Oregon. Tax Account.No(e).: 126840 Map/Tax Lot No(e): 211003 DO 16200 The true coneideration•for this conveyance is $ BEFORE SIGNING OR ACCEPTING THI8 INSTRUNBNP, TEE PERSON TRANSFERRING• PSB TITLE. SHOULD INQUIRE ABOUT THE PERSON'S RIGHTS, IF ANY, UNDER CHAPTER 1, OREGON LAWS 2005 (BALLOT MEASURE 37 (2004)). THI8 INSTRUMENT DOES NOT ALLOW USB OP THE PROPERTY DESCRIBED IN THIS INSTRUMENT IN -VIOLATION OF APPLICABLE LAND USE LAWS AND REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING F88 TITLE TO THE PROPERTY SHOULD CREME 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 IN ORS 30.930 AND TO INQUIRE.ABOUT THE RIGHTS OF NEIGHBORING PROPERTY. OWNERS, IF ANY .UNDER CHAPTER 1, OREGON LAWS • 2005 (BALLOT.MEABURB 37 (2004)). Tune Dated this 1$ day of May, 2006. STATE OP OREGON, COUNTY OF' MILFORD K & EILEEN J MILLS LIVING TRUST MILFORD M. MILLS, TRUSTEE 79ukti l,+•3�ce EILEEN J. ILLS, TRUSTEE 0.1ar) 80. This instrument'was acknowledged before me on June , 2006 by MILFORD M. MILLS AND EILEEN J. MILLS A8 TRUSTEES OF.THB MILFORD M. & EILEEN J. MLLE LIVING TRUST. (Notary My commission expires TITLE NO. ESCROW NO. 13 -0O -LIVE Recorded by Western T(tIe as an accommodation only. No liability. accepted for condition of title or • validity, sufficiency or affect of document. P VICKIE L GAPPMAYER STATE OF WA 1INGTON NOTARY PUBLIC My Canvkuloe Was JIRy 24.2009 After recording return to: WESTERN TITLE & ESCROW COMPANY PO BOX 3584 .80NRIVER, OR 97707 DESCHUTES COUNTY =P, COUNTY CLRENANCY OFFICIAL im1.11Z11 121110 $31.00 031231200103.50.35 PN p p Antal Stno2 35 i8.00 511.00 =10.00 55.00 Until a change ie requested all tax statements shall be sent to the following address: MILFORD M. & EILEEN J.MILLB LIVING TRUST' NO CHANGE WARRANTY DEED -- STATUTORY FORM MILLS FAMILY LIMITED. PARTNERSHIP, MILFORD M. MILLB'AND EILEEN J. MILLS, TRUSTEEEB O/A/D 4/24/95, Grantor, conveys and warrants to MILFORD -M. MILLS -and EILEEN J. MILLS, TRUSTEES OP THE -MILFORD M. & EILEEN J. 'MILLS LIVING TRUST U/A/D 4/24/95, Grantee. the following described real property, free of encumbrances except as specifically set forth herein, to wit: Lot 72 in Block 63 of DESCHUTES RIVER RECREATION HOMESITES,. UNIT 6.,- PART 1, Deschutes County, Oregon. Tax Account No(a): 126841 Map/Tax Lot No(a): 211003 DO 16100 This property ie free from encumbrances, EXCEPT: All those items of record, if any, as of the date of this deed, including any real property taxes due, but not yet payable. The true consideration for this conveyance is BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON'S RIGHTS, IF ANY, UNDER ORS 197.352. THIS INSTRUMENT DOES 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 ACQUIRINGFEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED USES, TO DETERMINE ANY LIMITS ON LAWSUITS' AGAINST FARMING -OR FOREST PRACTICES AS DEFINED IN ORS 30.930 AND TO INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, 2 yyNERS, IF ANY UNDER ORS 197.35 Dated thin o{J'day of March, 2007. MILLILY LIMIITED PARTNERSHIP MILFDRb M.'MILLS, GENERAL PARTNER giL nal EILEEN J•. /MILLS. GENERAL PARTNER STATE OF OREGON, COUNTY OF DESCHUTES ) 88. Q This instrument was acknowledged before me.on March �.7 2007 by MILFORD M. MILLS and EILEEN J. MILLS AB OENERAL.PARTNERB.OF. MILLS. FAMILY LIMITED PARTNERSHIP. 1 f. . .(Notary Publi My commission expires TITLE NO. ESCROW NO. 13 -GO -LIVE r Oregon) Recorded by Western Title as an. accommodation only: No liability. a"cgpted for condition of title.or. yaliu Iv. sufficiency_ or affect of. document. 10 OFFICIAL SEAL L TRACY NOTARY PUBLIC.OREGON COMMISSION NO 402025 MY COMMISSION EXPIRES FE8 5 2010 CDD COVER SHEET FOR SLB 11/19/2008 10:49:22 PL 1 PAGES FILE ID 211003D016200PL20081119104922 TAXMAP 211003D016200 SERIAL 126840 DIVISION PL SITUS 16285 BEAR LN HOUSE# 16285 STREET BEAR CONTENT CU0815 Wetland Use Form, Comment Ltrs., Sign Affi RECORD ID CU0815 LOCATED IN DATE FILE Cover Sheet Identifier AHJKMTWX 4-1 W, LAND LAND USE NOTIFICATION FL _AI 109c `e_ttiA.c.cZA is to be completed only by planning department staff for mapped wetlands/waterways) DEPARTMENT OF STATE LANDS WETLANDS PROGRAM 775 Summer Street NE, Suite 100; Salem, OR 97301-1279; (503) 378-3805 1. County: Deschutes City: Responsible Jurisdiction: ❑ City ® County 2. APPLICANT: James Guv name 211 NW Georg is Ave. mailing address mailing address Bend. Or 97701 city, state zip (541)390-7558 phone Local Case File #: CU -08-15 DSL File #: WN PrIl rs—L, O 5(comnleted by DSL Staff) DSL Project #: Lig 710 (completed by DSL Stag) LANDOWNER: 11 Milford and Eileen Mills name 21Deschutes River Winds 4, LLC mailing address 1 and 2116295 Bear Lane mailing address Bend, OR 97707 city, state zip phone ( 3. LOCATION T 21 R 10 E S 03 1/4 d Tax Lot(s) 16100 and 16200 Address (street/city) 16285 and 16295 Bear Lane. Bend (Deschutes River Recreation Homesites) NWI quad map name Pistol Butte Attach all the following (with site marked): • LWI / NWI Map (if no LWI map) • Parcel Map • Site Plan (if any) If applicable attach: ® Other 4. SnE INFORMATION LWI/NWT Wetland Classification Codes(s) R2UBH AND PSSC Adjacent Waterway (if any) Deschutes Zoning RR -10, FP, LM WA 5. PROPOSED ACTIVITY ❑ site plan approval 0 subdivision ❑ grading permit 0 planned unit development ® conditional use permit ❑ building permit (new structures) ❑ Other Project Description (CU -08-151 Conditional use permit for a community docks on two lots in the flood plain and wetlands Completed by/Contact Dee Van Donselaar Date 4/2/08 Address 117 NW Lafayette. Bend Or 97701 DSL RESPONSE t A removal -fill permit is required from the Department of State Lands -foe tl+e ❑ A removal -fill permit will be required when the development project proceeds If A removal -fill permit may be required .For 3 sa cd l7: G .i.15 of renno✓c.I f ws ❑ A permit may be required by the Corps of Engineers (503-808-4373) ❑ Information needed includes: 0 A wetland determination/delineation report (Consultants list enclosed) 0 ❑ State Permit # 0 was issued ❑ has been applied for ❑ No removal -fill permit is requiredJfor the described /� project if/because: �,�� j Oe11schoks !9 wf ; s (les:9 Nu.led as c 5k K. Scenic.. (�tiow.krs%a; . fi»a removal - 441 rC4v;res . plot Hi + below !l,e band �rVtJ 5 ye. • A' Heft l is 2(SO teavir'[l fvr rer4oval- frit 2 SD evb:s tearcts Comments: I a w�e t- I aria $ . Th. Nation.' I e We i -11.w1 P,....-<,, fang 5h ol,J s w -e f / g", s race jeic.e. f W /lc riven ir. .! /cg's /fo, oo a ^a 162.00 . ❑ On -Site Visit By: Date: Response completed by: 0.6.A.1344: -L-• ..S. �w►.p-oY .- Date: 0 S - 0 6 — OB yvu may he. teyv,•re4 ft) no f+ co.+c( Obk+in orproa1 from o2. Parks August2004 a,.,,,e- (lec. fleef , eleure, ce„Az.c-f mi4o - Ala vc,,sr peov(ce� Coorcv...1-or. CDSt,) 4-a r< De s eh. }.e4 Co kor f v r slier- j n. . 511.1 3 SS - to L 31; Phone: (541) 317-3151 (emovat of 1-;11 art/ amob-el. of matt( fag s Prow, k.1e sce.•:a ky: VolUm6 :Ai 5i«Ir.. t'j. t�✓l4 k� +12rwts. TSS Community Development Department Planning Division Building Safety Division Environmental Health Division April 2, 2008 DESCHUTES COUNTY BUILDING DIV. 117 NW LAFAYETTE AVE. BEND, OR 97701 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ The Deschutes County Planning Division has received the attached application(s). Your agency may be affected or have concerns about this proposal. APPLICATION NUMBER: CU0815 - 211003D016200 APPLICANT: JAMES GUY 16285 BEAR LN,BE REQUEST: Conditional Use to allow CONDITIONAL .USE PERMIT FOR A COMMUNITY DOCK IN THE FLOOD PLAIN ZONE In order for the Planning Division to consider your comments they must be received by 04/17/2008. If there are significant questions or problems with this application, a meeting with the applicant and Planning Division may be necessary. This meeting should be requested as soon as possible. List facts, adopted policies, or any other comments you feel may apply to this application (feel free to attach a separate sheet or email comments). SuWcartir{ 174¢.vt.LT, A#i f120p6e. prA.0,1 2 it (Ai tt.c_. aE (E?utex ASS Plea. 2007 vfsG 641s)E Suggested action by Deschutes County: N COMMENTS Check if you want a copy of the Staff Report or Findings and Decision. Age v--- Date 1' 7--6;6 Please email or phone DEE VANDONSELAAR at dee_vandonselaar@co.deschutes.or.us or (541) 317-3151, if you have any questions. Thank you. Quality Services Performed with Pride April 2, 2008 Community Development Department LETHA CRAWFORD, OREGON STATE PARKS 1645 NE FORBES RD, 0112 BEND, OR 97701 Planning Division Building Safety Division Environrriental Health Division • „... 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co,deschutes.or.us/cdd/ The Deschutes County Planning Division has rece-ived the attached application(s). Your agency may be affected or have concerns about this proposal. APPLICATION NUMBER: CU0815 2110030016200 APPLICANT: JAMES GUY 16285 BEAR LN,BE REQUEST: Conditional Use to allow CONDITIONAL USE PERMIT FOR A COMMUNITY DOCK IN THE FLOOD PLAIN ZONE in order for the Planning Division to consider your comments they must be received by 04/17/2008. If there are significant questions or problems with this application, a meeting with the applicant and Planning Division may be necessary. This meeting should be requested as soon as possible. List facts, adopted policies, or any other comments you feel may apply to this application (feel free to attach a separate sheet or email comments). /8.8+% a Sr:tea c- klakirevaa5 Suggested action by Deschutes County: .112c,t neat _repuw4 ivt CittAtuf t 04-cr n wuder) 6n1-17 o ette 'T./ ap 4,7 afekivai-792 Ai o pe_1). )0 NO COMMENTS Check if you want a copy of the Staff Report or Findings and Decision, Agent , Cre? ptefiker? Date Please email or phone DEE VANDONSELAAR at dee_vandonselaar@co.deschutes.or.us or (541) 317-3151, if you have any questions. Thank you, * • Post -IV Fax Note 7671rata4.....14._ ify9xesio. I"Act Vatidonc, r° 1.Cretc4v, _c`regi 1,c°- Of fist KA- (pee - 1 Phone fl roma #38ri..... Go -u IIF:gx,s8,5_061, 1Faxf1 Quality Services Performed with Pride 0 Community Development Department Planning Division Building Safety Division Environmental Health Division ulillkidhuwlVli11uilu'1,1Yudll aunndum4ll April 2, 2008 DESCHUTES COUNTY ASSESSOR 1300 NW WALL STREET BEND, OR 97701 117 NW Lafayett% 97701-1925 '.o.res.lr I 764 1;:?042006 DESCHUTES COUNTY ASSESSOR'S OFFICE The Deschutes County Planning Division has received the attached application(s). Your agency may be affected or have concerns about this proposal. APPLICATION NUMBER: CU0815 - 211003D016200 APPLICANT: JAMES GUY 16285 BEAR LN,BE REQUEST: Conditional Use to allow CONDITIONAL USE PERMIT FOR A COMMUNITY DOCK IN THE FLOOD PLAIN ZONE In order for the Planning Division to consider your comments they must be received by 04/17/2008. If there are significant questions or problems with this application, a meeting with the applicant and Planning Division may be necessary: This meeting should be requested as soon as possible. List facts, adopted policies, or any other comments you feel may apply to this application (feel free to attach a separate sheet or email comments). Suggests - - -: :. I - t = 1 1 ��R O' / NO COMMENTS ` ' Check if you want a copy of the Staff Report or Findings and Decision. Date 41///08 Please email or phone DEE VANDONSELAAR at dee_vandonselaar@co.deschutes.or.us or (541) 317-3151, if you have any questions. Thank you. Agent_/ Quality Services Performed with Pride April 2, 2008 Community. Development Department PROPERTY ADDRESS COORDINATOR 117 NW LAFAYETTE AVE. BEND, OR 97701 Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ The Deschutes County Planning Division has received the attached application(s). Your agency may be affected or have concerns about this proposal. APPLICATION NUMBER: CU0815 - 211003D016200 APPLICANT: JAMES GUY 16285 BEAR LN,BE REQUEST: Conditional Use to allow CONDITIONAL USE PERMIT FOR A COMMUNITY DOCK IN THE FLOOD PLAIN ZONE In order for the Planning Division to consider your comments they must be received by 04/17/2008. If there are significant questions or problems with this application, a meeting with the applicant and Planning Division may be necessary. This meeting should be requested as soon as possible. List facts, adopted policies, or any other comments you feel may apply to this application (feel free to attach a separate sheet or email comments). .. _ __ .. . at_ •_ =- NO C � �3 TS Check if you want a copy of the Staff Report or Findings and Decision. Date 'V-7— 0 Agent Please emai or phone DEE VANDONSELAAR at dee_vandonselaar@co.deschutes.or.us or (541) 317-3151, if you have any questions. Thank you. Quality Services Performed with Pride TI ES Q Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes. or. us/cdd/ LAND USE ACTION SIGN AFFIDAVIT STATE OF OREGON ) ) ss. COUNTY OF DESCHUTES ) FILE NUMBER G�'�5��� C$fo being first duly sworn, depose and state as follows: (name) I placed a Notice of Land Use Action sign on the Applicant's property on 2008, where it can be clearly seen from t -ear (name of road) 11/1/06 (date) If the land use sign notices a hearing, the hearing is to be held on - , 2008. (date) Datz-d this l St day of A- r � ( , 2008. Affiant Subscribed and sworn to before me this 1 day of k f;1 , 2008. OFFICIAL. SEAL JEFFREY BELZER NOTARY PUBLIC -OREGON COMMISSION NO. 422844 , MY COMMISSION EXPIRES OCT. 30, 2011 Notary Publiiefor Ofegon My Commission Expires: 0 Cls- 3 v I t -D t1 Quality Services Performed with Pride 008 MAP SHOWING ORDINARY HIGH WATER LINE ON LOTS 72 & 73 BLOCK 63 DRRH UNIT 6 PART I, BEING TAX LOTS 16100 & 16200 OF MAP 21 10 03DC, DESCHUTES COUNTY, OREGON ORDINARY HIGH WATER LINE tOr � �3 ,, 101.8.Op OHW oa,.. 64,00, FRESHWATERS SURVEYING, INC. SCOTT C. FRESHWATERS, PLS, PRESIDENT P.O. BOX 4524 SUNRIVER, OREGON 97707 (541)593-1792 SEPTEMBER 25, 2007 #5939C CLIENT: JAMES GUY & MEL MILLS LOT 73 Tax Lot 2400 s OT O 40 p©yL 1.77 49, 00 3), oa LINE BEARING NORIZ DIST LI N69'38'33'W 3.30' L24 N33.05'48'W 1.64' 1.2 978'33'081N 1.35' 125 S79'08'28'W 2.09' L3 N5'39'101,1 1.91' 126 N71'05'071,1 2.69' L4 N15.200314, 1.33' 127 N68.10'48141 4.21' 15 N63'4T36'W 15.86' 1,28 N85'56'391W 2.37' L6 S88'46'051W 1.15' L29 N7804030'W 3.34' L7 N70'01'59'W 3.36' 1.30 310'5T38'E 1.04' LB S89'24'22'W 2.52' L31 081'44'521N 1.24' L9 N72.43'36'W 1.77' L.32 N73.47'141N 2.72' 110 N48.41'16W 2.55' L33 N85'3749'W 0.85 111 N70'07.35'W 2.49' L34 N85'02501W 0.71' 1.12 S74'4242W 1.99' L35 N57'12'38141 7.49' 1.13 843.30'061N 2.88' 1.36 N63"27.1 VW 10.12' L14 N86'46'541N 5.41' 137 N54.26'4916/ 4.91' 115 582'3518W 2.37' 138 N59.37'2811/ 7.98' L16 N43'23'46W 2.47' L39 N55'095314' 8.21' L17 N65'52'53W 5.00' L40 N42'3048W 8.55' 118 N68'4314W 5.03' L41 S67.42'501,1 5.34' 1.19 N53'46'331Y 4.75' 1.42 N55'13'581N 6.10' L20 N4699'24141 4.02' L43 7..7 121 N4,5'3059 -IN 30111 2.44' 1.44 N42 31' 81/1 6.87' 1.22 N67'01'351N 2.78' 1,45 N88'27041V 3.05' L23 N78'08'48W 2.21' @F 14 LOT 72 Tax Lot 2500 NF SCALE 1" = 30' REGISTERED PROFESSIONAL LAND SURVEYOR SCOTT C. F SI-IWATERS Y 15.1587 S 12/31/2017 Spring Rivet Rd (SITE 5 l; Cel20145tMicrosoft Corporation Lint' Three Rivers a -014 Nokia 20 EXHIBIT CC SURVEY DATA BY: FRESHWATERS SURVEYING, INC. SCOTT C. FRESHWATERS, PLS P.O. BOX 4524 SUNRIVER, OREGON 97707 541.593.1792 OFFICE 541.420.1822 MOBILE JUNE 19 + SEPT 24, 2014 CLIENT: PETER DREIFUSS #9766 THIS IS NOT A BOUNDARY SURVEY AND IS SUBJECT TO ANY INACCURACIES THAT A BOUNDARY SURVEY MAY DISCLOSE. THE PROPERTY LINE DIMENSIONS ARE PER THE PLAT OF OREGON WATER WONDERLAND UNIT 2. THE ELEVATIONS SHOWN ARE NAVD 1988 DATUM. THE BASE FLOOD ELEVATION IS 41642 AS SHOWN ON THE FEMA F.I.R.M. NO.41017C1130E AND DETERMINED FROM PLATE 10P OF THE FEMA F.I.S. BOOKLET. All indicated numbers in red were added to the Site Plan on 9/23/2015 by Monica Stringer, Hurley Re, P.C., Legal Assistant to Elizabeth A. Dickson & J. Kenneth Katzaroff. All indicated numbers in red correspond to attached photographs taken on location by Monica Stringer during a site visit to the Dreifuss property on 9/3/2015. 7 96/ s,4ad'9UO3 \ 1 � —}— —'/ 162.50— � J LEGEND ELEC. POWER MET • BREAKER PANEL • FOUND Pr D10. REBAR WATER VALVE 1.5' o PVC PIPE CAPPED SOIL p PIPES TO SEPTIC OR HOLDING TANK 4'X4" POSTS WITH ▪ ELECTRICAL OUTLI UG SPRINKLER VAI AND CONTROL BO: TOP OF RIVER BANK — • — ORDINARY HIGH WATER LINE -0 3' TALL WOODEN FENCE / / 4163.00-- 4, 5, 6 Under Dock 10 SHORE LINE 209.5' LINEAL FEET / A/////WELL 1041Z/ /// n / //( FF -4161( O / ///fiery / / 1 //N / : EXHIBIT Z September 25, 2015 From the desk of Jay Bowerman, Sunriver Nature Center. Regarding: Wetland site on the Deschutes River at 17266 Satterlee Way. I visited the Dreifuss property at 17266 Satterlee Way and have the following observations and opinions. The lot has river frontage that runs from approximately 43° 50.292' x 121° 27.746' at the SE corner to 43° 286' x 121° 27.731' at the NE corner. The river frontage is largely a rip - rap reinforced river bank devoid of vegetation, with a dock protruding about 2 m over water in the mid-portion of the river front. There is one small stretch of riparian/wetland vegetation in the form a narrow strip of sedge (Carex sp) approximately .5m wide and 7m long. In my opinion, there is no portion of DREIFUSS property that would attract or retain Oregon Spotted Frogs (OSF--Rana pretiosa). The nearest known occupied OSF habitat is in the canal surrounded by Island Loop Way, a linear excavated water feature that connects to the Deschutes via a culvert approximately 200m upstream on the same side of the river as the DREIFUSS property. One OSF has been reported on the Deschutes immediately upstream of the confluence described above, and additional OSF juveniles and adults have been documented within the canal in 2012 and 2013. There is a known OSF spawning site adjacent to the canal in an area of seepage and upwelling. This spawning site is approximately 200m from the DREIFUSS property by direct line. However, OSF are considered highly aquatic and rarely get more than a few meters from water, generally moving by way of water and mostly at night. The spawning site is approximately 400 meters from the DREIFUSS property by water corridor. There are no additional known OSF-occupied sites within a mile either up or down river. The narrow sedge strip of DREIFUSS property could not be considered suitable habitat for OSF. While one cannot rule out the possibility of OSF being seen at the sedge strip of the DREIFUSS property, I consider it highly unlikely and such an occurrence would represent an "accidental" sighting resulting from a frog that had moved into the river in search of suitable habitat and had retreated briefly to await darkness before moving on. Respectfully submitted: Jay Bowerman Principal Researcher Sunriver Nature Center P.O. Box 3533 Sunriver, OR 97707 541593-8302 Exhibit Z Page 1 of 1 Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS, 10:00 A.M., WEDNESDAY, MARCH 30, 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. If 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 Wednesday, March 30, 2016 Page 1 of 7 CONSENT AGENDA 4. Board Signature of Document No. 2015-537, an Agreement with Telecare Mental Health Services of Oregon, Inc. for Residential Treatment Services 5. Board Signature of Order No. 2016-016, Authorizing the Sale of Surplus Property — Vehicles (Sheriff's Office) 6. Board Signature of a Letter Appointing Henry Kelley to the Board of Forest View Special Road District, through December 31, 2016 7. Board Signature of Letters Appointing Bill Kuhn (Senior Vice President, Commercial Loan Manager, Bank of the Cascades) and Steven Curley (Director of the Small Business Development Center, COCC) to the Deschutes County Fair Board, through March 31, 2019 8. Board Approval of a Discretionary Grant Event Application from the Family Resource Center for $1,500 9. Board Signature of Minutes: • Work Session of March 23, 2016 • Business Meeting of March 21, 2016 ACTION ITEMS 10. CONSIDERATION of the Reading and Board Signature of a Proclamation Declaring April 2016 as Child Abuse Prevention Month — Shelly Smith, KIDS Center, and Tim Rusk, Mountain Star Nursery 11. CONSIDERATION of Chair Signature of Document No. 2016-201, a Notice of Intent to Award Contract Letter for the Knott Landfill Compost Relocation Project — Timm Schimke, Solid Waste Department Suggested Action: Move Chair signature of Document No. 2016-201. 12. CONSIDERATION of Chair Signature of Document No. 2016-077, a Notice of Intent to Award Contract Letter for the Paving of Baker Road, Arnold Market Road, Burgess Road and Finley Butte Road — George Kolb, Road Department Suggested Action: Move Chair signature of Document No. 2016-077. Board of Commissioners' Business Meeting Agenda Wednesday, March 30, 2016 Page 2 of 7 13. CONSIDERATION of Chair Signature of Document No. 2016-207, the Federal Lands Access Program Match Agreement to Fund 50% of a Chip Seal Project on South Century Drive — Chris Doty, Road Department Suggested Action: Move Chair signature of Document No. 2016-207. 14. CONSIDERATION of Chair Signature of Document No. 2016-208, the Federal Lands Access Program Match Agreement to Fund 50% of a Chip Seal Project on Paulina Lake Road — Chris Doty, Road Department Suggested Action: Move Chair signature of Document No. 2016-208. 15. CONSIDERATION of Board Signature of Document No. 2016-209, an Intergovernmental Agreement with the City of Yakima regarding the Joint Procurement of Equipment, Materials and Supplies — Chris Doty, Road Department Suggested Action: Move Chair signature of Document No. 2016-209. 16. CONSIDERATION of Board Signature of Document No. 2016-210, an Intergovernmental Agreement with the Yakima County regarding the Joint Procurement of Equipment, Materials and Supplies — Chris Doty, Road Department Suggested Action: Move Chair signature of Document No. 2016-210. 17. CONSIDERATION of Chair Signature of Document No. 2016-2011, a Notice of Intent to Award Contract Letter for a Classification and Compensation Study for Non -represented and AFSCME Positions — Danielle Fegley and Teri Lorenz, Human Resources Suggested Action: Move Chair signature of Document No. 2016-211. 18. A PUBLIC HEARING on an Appeal of the Hearings Officer's Decision regarding New and/or Non -conforming Structures (Dreifuss) — Will Groves, Community Development Suggested Actions: Open hearing; take testimony; close hearing and/or deliberate, as appropriate. Board of Commissioners' Business Meeting Agenda Wednesday, March 30, 2016 Page 3 of 7 19. CONSIDRATION of First Reading by Title Only of Ordinance No. 2016- 004, Amending Code Chapter 13.08 to Reflect Current State Reference Materials and Allowable Fees — David Doyle, County Counsel Suggestion Action: Move first reading by title only. CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 20. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-H COUNTY SERVICE DISTRICT 21. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 22. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for Deschutes County 23. 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 few exceptions and under specific guidelines, are open to the media. 24. ADJOURN Board of Commissioners' Business Meeting Agenda Wednesday, March 30, 2016 Page 4 of 7 To watch this meeting on line, go to: http://www.deschutes.ora/bcc/Daae/board-meetina-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. gDeschutes 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 al email ken.harms@deschutes.org. 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, March 28 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 10:00 a.m. Board of Commissioners' Business Meeting Tuesday, April 5 3:30 p.m. Regular Meeting of Public Safety Coordinating Council Wednesday, April 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 Board of Commissioners' Business Meeting Agenda Wednesday, March 30, 2016 Page 5 of 7 Wednesday, April 13 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) 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, Mav 2 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Tuesday. Mav 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 Board of Commissioners' Business Meeting Agenda Wednesday, March 30, 2016 Page 6 of 7 Wednesday, Mav 11 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Friday. Mav 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 gDeschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format please call (541) 617-4747, or email ken.harms@deschutes.org. Board of Commissioners' Business Meeting Agenda Wednesday, March 30, 2016 Page 7 of 7