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2016-199-Minutes for Meeting May 04,2016 Recorded 5/13/2016
19;t.fi-2i0I6 rt (j c169 j NANCYUOFFICIAL BLANKENSHIP,COUNTY CLERKS 1+d 209 COMMISSIONERS' JOURNAL 05!1312016 04:27 24 PM 111111111111311111 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.orc MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, MAY 4, 2016 Present were Commissioners Alan Unger, Tammy Baney and Anthony DeBone. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; and Dave Doyle, County Counsel. Attending for a portion of the meeting were Will Groves, Peter Gutowsky and Nick Lelack, Community Development; James Lewis, Property & Facilities; Whitney Hale, Communications; Steve Reinke, 911; and ten other citizens including media representative Ted Shorack of The Bulletin. Chair Unger opened the meeting at 1:30 p.m. 1. Discussion of a Decision on Lower Bridge Property Land Use Appeals. Will Groves gave the history of the issue. The Board is working towards a decision. (He referred to a matrix of the key points.) One question has to do with a PUD (planned unit development) on farm -zoned land. The parent parcel original was zoned for farm use, and the applicant agreed to a lot line adjustment to remove farm use land from the subdivision land. This property is not being counted towards the necessary acreage, so allowing this does not create a problem Minutes of Board of Commissioners' Work Session Wednesday, May 4, 2016 Page 1 of 15 More difficult is the flood plain zoned land, and whether it can be counted. The applicant feels this is allowed, but the Hearings Officer did not. There are no proposed uses for the flood plain area. The question is how to read the various text amendments as a whole. Staff is not certain if this interpretation is possible. The applicant was advised to pursue a text amendment to adjust this. It is felt that this could be allowed in the flood plain zone. It could go either way. There is the whole body of the record, which is contained in a 23 -page memo. This is predominately through quotes of the applicant and opponents, and is captured in the matrix. Commissioner Baney asked if the flood plain had been considered in this way before. Mr. Groves said that planned use developments are rare, so he does not think so. The Board can find this is allowable, whether that land can be counted towards the number of housing units allowed. The overall size of the subdivision is larger, more units can be created, and the ratio creates more open space. The Hearings Officer found this cannot be included in the density calculations. Some land was added from the east area to the west to accommodate this. The opponents argue that only nine lots should be allowed. Staff feels that to the extent the flood plain land is included regarding overall space, it was not eligible for residences anyway. Opponents think this is allowing new residences. The Board needs to confirm the Hearings Officer's findings or decide otherwise. Commissioner DeBone asked about the slope of the land. Mr. Groves said the flood plain is based on a FEMA map and there are questions about accuracy. FEMA paints this with a broad brush and includes areas with no flood hazard. There is no proposed activity in that area anyway, but there is a zone boundary based on this. There is no precedence for this. Question 4 relates to the boundary of the flood plain zone. The map is not accurate. There are processes to refine the boundary and FEMA can help do this, but it is an expensive process as well as time consuming. Since there will not be homes in the hazard area, the applicant is hesitant to do this. Chair Unger asked about the wild and scenic designation. Mr. Groves said FEMA's map was adopted by the County and it has become a paper question. Commissioner Baney asked how often the maps are updated. Mr. Groves stated that there is technology that would make this more exact and he hopes this can be done in the future. Minutes of Board of Commissioners' Work Session Wednesday, May 4, 2016 Page 2 of 15 Item #5 is the conditional use. The question is whether the conditional use is the whole PUD or just the changes in density and layout. The HO found that it applies to the whole application. The applicant argued that this is an error. Staff feels that the conditional use is not an add-on, and can only be reached through the PUD. It applies to the whole application since it is all one package. Item #6, the applicant appealed on the issue of traffic improvements. Lower Bridge Way is currently not to County standards and it is the obligation of the applicant to improve it. Nollan/Dolan is an argument made by the applicant, that improvements should be proportionate to the impact. Staff worked with the Road Department, Legal and the transportation planner, and the applicant would add about 35% to the trips, and would need to comply with Nollan/Dolan cases. There is a question about cost sharing, but this can be handled under conditions of approval. Item #7 relates to the Hearings Officer saying that the Board decision in 2008 was likely not permissible regarding additional restrictions. The applicant feels the Hearings Officer erred. When there are criteria saying that a location is suitable for residential use, you have to decide if this is based on evidence. Staff recommends rejecting the applicant's claim of a collateral attack. This was settled in 2008, but upon voluntary compliance on a variety of concerns. There are certain rules that apply and it can be revisited. The applicant feels that denial is a taking, and a Constitutional issue. Staff and Legal looked into this, but because the applicant has not proven that all financial uses have been excluded, it does not apply. They could have a non-clustered development, a single residence or a variety of other uses. Chair Unger asked if it matters that the property was purchased after the 2008 decision. Mr. Groves said that a new buyer should have reasonably been aware of the issues relating to the property. Due diligence applies. Item #9 talks about criteria relating to sufficient financing existing to complete the project. This is typical for PUD, as it is a relatively small project. The Hearings Officer felt this was covered. This is not rebutted, and the owners have already spent a lot of money and own the property outright. The opponents feel that the applicant does not have the funds to clean up the site. The applicant would use this money for that purpose. Minutes of Board of Commissioners' Work Session Wednesday, May 4, 2016 Page 3 of 15 Chair Unger asked what is to be cleaned up. Mr. Groves said the model is that they need a 'no further action required' letter from the DEQ, including any known off-site impacts. It has to be wholly suitable for residential use, and funds would be used to work on the west side to at least a point where it is not imposing risk to the east side. Staff is concerned how they can do this in four years, as they do not know what the project is going to cost, or the cost of the investigation and work. Commissioner Unger asked if this would involve the scope of the whole property. Mr. Groves said it would be just the east side. They would like to see some numbers. He feels the applicant could provide this. The record could be reopened to allow this to be admitted. Chair Unger stated that it seems the Board will have to decide on this. Item #10 has come up a lot recently. There are some old signs painted on rocks in the area. The Hearings Officer did not address this, and opponents question if lot #1 could be built on. Staff feels that there is still an acre of developable land even with this 100 -yard radius. The question is whether it is enough to include septic system, a lawn or other ground -level development. One -acre sites are regularly developed. However, the Board can say that lot #1 is to be omitted. Commissioner DeBone noted that the lot is above the site and not visible. There was concern about activity causing damage to the site, but it is not being protected already. Item #11, the CCR's need to describe the environmental history. The applicant provided draft language. The opponents feel this will not include information on what they feel are toxic waste sites. Staff feels that the entire history should be included, along with 'no further action required' letters, before anyone purchases. Chair Unger said apparently this would be specific to the property that was rezoned, and not the mine it sits next to. He asked how they would be informed about that. Mr. Groves stated that staff feels it should include the property as a whole. The DEQ and OHA letters will address the entire property and how hazards were mitigated or mediated. Commissioner DeBone asked if protection is still needed. Mr. Groves said there is no evidence of ground water contamination and no instances of dumping. The concern is the dust. There has to be identified hazards and an identified plan to clean it up, and not just speculation. Chair Unger asked if there is a risk to the applicant and the County of future litigation. Minutes of Board of Commissioners' Work Session Wednesday, May 4, 2016 Page 4 of 15 Mr. Groves stated that this is a question to consider, and even a diligent exploration might not find everything. There is a process through DEQ, but that might not cover every possible outcome. Item # 12, whether the proposed development would negatively impact the rural area. The Hearings Officer felt that the open space and limited residences comply with rural uses. The local residents should expect eventual development, but they feel the PUD is a big impact, crowded on the rimrock. Staff found that the definition of rural character is subjective. Close proximity is possible, but it does have large parcels that would be mostly permanent open space. Item #13, suitable due to geographic stability. Exploration reports found it was suitable from a geotechnical perspective. The Hearings Officer did not directly address this. Individual lots can be analyzed. The scope of the debate is that if there are problems, they can be remedied. The opponents feel that each homesite must have holes dug to find this out. Staff feels that conventional building methods will cover this concern. Item #14 , buried rimrock still being rimrock. Back in the 1940's, a lot of material was pushed over the eastern canyon rim. This on a smaller scale was done elsewhere. Rimrock requires special setbacks. The concern is setting precedence by burying rimrock with fill. This happened half a century ago, and it appears that any homesites will be far from any rimrock that was previously there. The applicants say they will comply with rim rock standards. This has mostly to do with lots 11 through 13. There is no evidence that buried rimrock would mean lots could not be developed in any case. Item #15, the canyon rim usually has a protected rocky outcropping so those people at the river will not see homesites. A number of homes in the area were built before this law went into place. The rimrock definition means there has to be rock face or outcrop, and a drop of beyond 45 degrees. Staff noted that the angle of repose of soil will not pile up beyond 45 degrees anyway. The dirt is not predominately located above 45 degrees. However, the homes would have visual impact. The Board can apply this to exposed rock, or to treat the upper boundary of the upper rim as rimrock, requiring a twenty -foot setback or more from there. Item #16 has to do with building constraints on the lot. The lots are suitable for a house but the opponents feel this does not allow enough room for septic systems. The applicant indicated that they can, and have demonstrated this with the rimrock, setbacks and typical building footprints. Minutes of Board of Commissioners' Work Session Wednesday, May 4, 2016 Page 5 of 15 The applicants feel that the Board has to say that all lots are buildable. Staff feels that it is feasible and this is a condition of final plat approval, and recommends approval. This is not a binding promise if it is not suitable for some other reason. Items #17, 18, 19 have to do with suitability of the property for residences, and whether it is suitable given dust concerns under current conditions, meaning no activity on the west side. This means whether it is suitable for the east area development, putting in roads, etc. and suitable given western area dust concerns if development occurs there. The applicant worked with the DEQ and did on-site soil testing under the open record period to get additional samples. Since they cannot capture dust in the air, the Board had asked about this. They could use soil from the east side that may have blown over there. Several samples were examined, and came back with less than that of the processed cristobalite. The natural in -ground sample also showed this. The testing process is limited. Another mineral called feldspar sets off the equipment as well. The in -ground samples did not show additional cristobalite being any less than the other samples. They were all coming in at background conditions. They of course could not sample all the dust on the property, but did sample in reasonable locations. The Hearings Officer was concerned about blowing diatomaceous earth dust. Vegetation on site not adequately established. It is kind of a mixed bag. Some is well vegetated, while other areas are not. The history is that it was broadly disturbed. There is a crust on the surface and some revegetation was attempted. The Hearings Officer is still concerned based on what the neighbors said. The site is a source of dust, but so is all the property. It is not clear if it is a hazard to nearby properties. It has somewhat improved out there. The Board needs to determine whether putting in a development is the right thing to do and whether it is suitable based on this concern. Issues relating dust creation due to earth -moving activity has been mitigated by the DEQ and OHA. They suggested getting water on the dusty areas. Staff said dust control needs to be a part of it. They can have a water truck on site for such activity so dust does not migrate. 'No visible dust' is a tough standard and not typical of any development. It can likely be suppressed to not affect others downwind. Minutes of Board of Commissioners' Work Session Wednesday, May 4, 2016 Page 6 of 15 On the west side, there is the same issue. If it is mined again or developed otherwise, there will be the same issue — dust mitigation. Staff feels that this may be easy to implement while homes go in. It would not a general dust storm when it is difficult to suppress dust. The applicant wanted the homeowners' association to handle this, but staff recommends that the County be able to enforce it at some level. Item#20 refers to a lot of legal history. The Hearings Officer found that she could not defer suitability requirements for the final plat since it does not provide for public notice. If a condition has to be met, the Board has to find that if it is met, it is feasible today; or the applicant can show a plan to get there. It is not always easy to determine this. The applicant is in the process of investigating any hazards and would then make a plan to remediate them. Under case law, they would be able to create a plan if their investigation is done. Compliance with this means that there is no identified hazard except for the dust. The applicant argues that they are in voluntary compliance and the subdivision is precluded unless something has come up, that the Board should find it will be suitable when this is reached. The court and LUBA have had problems with something being suitable when met. It is different that if there is a voluntary compliance plan. There are extensive citations of case law and the applicants feel they met all criteria and they can meet anything further needed. Supporting this opinion must be based on current evidence. The opponents feel this should be done as a preliminary effort. The applicant feels that this is not required, but that the applicable agency is on board with a process and this is sufficient. Staff has alternative findings: that it needs to be feasible to mediate or delegate the finding to the voluntary compliance process. It might not be legally permissible. Item #21 relates to this being a suitable location for residences, given concerns of hazardous or radioactive material and groundwater contamination; and the historic uses of the site. The Hearings Officer found that while there are concerns, there is no present evidence of this. The same conclusion was reached in 2008 and the applicant is doing further investigation. Opponents think that it has not been made safe for human occupancy, and does not incorporate all of the information. Opponents had an investigator look at the applicant's information and this question went to the DEQ. However, the DEQ feels it is adequate and has no additional concerns. Minutes of Board of Commissioners' Work Session Wednesday, May 4, 2016 Page 7 of 15 It is unknown if there is significant contamination on the site. The applicant has not refused to be involved when asked. They want to know if it is safe but not all has been done due to cost factors. This is a chicken and egg situation with alternative findings for the Board. Chair Baney asked if they could even require this. Mr. Groves said if it is an area of concern, staff can find out more. The process could be extended and the record reopened to put this information in the record, along with how any problems they find might be fixed. The voluntary cleanup might be sufficient in itself. Mr. Groves noted that the Board probably cannot condition approval on meeting intermediate steps rather than the final step. Item #22 asks if bonding is appropriate. The Hearings Officer felt it is. The applicant does not want to place a bond, and staff said there is no identified project so this is not appropriate. The voluntary cleanup program may provide clarity if there are specific requirements at that time. He is not sure that the DEQ and OHA will want to get involved in bonding. It cannot be imposed at this time. Item #23 addresses the Oregon State Scenic waterway Act and Federal Wild and Scenic Rivers Act. There is nothing proposed to change the classification, or that individual dwellings cannot be approved. The applicants feel that infrastructure does not apply. Opponents think this piecemeal development and impacts scenic and natural values. The applicants have obtained all on this issue that they can at this time. The rest depends on what is introduced on each lot. There is no applicable code that allows the County to second-guess this. The County focuses on screening and other landscape management factors under review. Most, if not all, will not be visible from the river. This is done at the time of individual dwelling approvals. Cumulatively there can be a visual impact, per the opponents. But the applicant is not required to show individual site plan improvements at this time. Chair Unger said he will review the matrix and ask for further information as needed. Mr. Groves said that reasonable people can come to different conclusions. Minutes of Board of Commissioners' Work Session Wednesday, May 4, 2016 Page 8 of 15 2. Discussion of Widgi Creek Appeal Decision Schedule. Mr. Groves provided an overview of this issue. The record is closed and usually the Board goes into deliberations within a reasonable time afterwards. However, the applicant is involved in mediation and outreach efforts, and would like additional time. There is a set timeframe for making a decision by late July. If extended, it will go into October. There is a letter from the homeowners' association stating that this case should not be extended. The applicant continues to support the extension, however. The Board can deliberate at any time, but should allow at least thirty days before that date. Chair Unger would like to allow an extension, and asked for an update. The Board does not want to keep this on hold forever. It is time to determine if this is working or if the Board should proceed. David Doyle stated that he has communicated with attorneys for both parties, and he feels they are at a standstill. He feels nothing is occurring. Mr. Groves stated that the applicant is making efforts towards mediation, but the opponents refuse to participate. Commissioner Baney stated that the Board has a lot to deal with right now, especially relating to marijuana and land use, so the chance of them getting on this quickly is small. She is open towards waiting a bit, to see if there is some improvement and allow for more openings on the Board calendar. Mr. Groves said that some additional time might be appropriate, and he can check back in a month or so. At that time, the Board could determine if setting a hearing date is appropriate. Mr. Anderson asked if this creates an additional burden on staff. Mr. Groves feels that it is manageable. He would rather not produce a lot of documents now in case things change between the parties. The applicant will extend the clock, with a final decision due by October 26. So, there needs to be a hearing and decision about a month before that. Commissioner Baney voiced concern that there are not willing partners for mediation. If the parties anticipate that they are both going to get what they want, this is not reality. The Board will try to find a balance. She hopes that they can find some common ground, but that takes willing partners. She would like to get this on the calendar, but asked for staff to let the Board know if they are making any progress. Minutes of Board of Commissioners' Work Session Wednesday, May 4, 2016 Page 9 of 15 3. Real Property Update. James Lewis presented a proposal from the City of Bend regarding the Central Westside Plan. Grant work on this process started a year ago. The initial draft went to the City's Planning Commission and will go to the Council. His memo explains where they are and the next steps. The map shows the County's demolition site and future intended zoning. Mixed use and medium density residential zoning is a huge change in the potential development of the property. The timing has to do with transportation improvements, bike corridors on 15th Street, and innovations that would support this. However, they are asking their Council to accept this. Phase 2 is implementation. They need a funding plan, perhaps through formation of a district where development pays into it per trip. This would be similar to the Westside Consortium. It will take at least 20 years. This project coincides with the City's UGB expansion, with the central portion of vacant land as an opportunity area. Being inside the UGB gives it a higher development potential today. The OSU and County properties are in an opportunity area, and will not have to wait for all the improvements to be made. The County would get a general plan amendment out of it. From public facilities to mixed use or residential is a big change. The plan is good, with lots of supporting transportation projects. The Planning Commission recommend acceptance, siting the need for a scope of work for implementation. They may ask the County for more funds to pursue grants. Chair Unger noted that the County otherwise have had to do this on its own, with no certainty of approval. Commissioner DeBone said that he wants to advocate for the Simpson property as well. Mr. Lewis replied that the map does not show the boundary of the opportunity area. It would not make sense to leave out this undeveloped property. They are looking at this as RM, as it abuts existing single-family home neighborhoods. City staff will ask for Council acceptance. This will be followed by comprehensive plan work and funding efforts. This is a good result for the County's property. 4. Other Items. Nick Lelack said that the two most recent Planning Commission candidates have withdrawn for various personal reasons. The committee has interviewed everyone at this point. There are two candidates to be considered. Minutes of Board of Commissioners' Work Session Wednesday, May 4, 2016 Page 10 of 15 Regarding the Historic Landmarks Commission's proposed proclamation to save Troy Field, he feels the Landmarks Commission can do this, but it is not within the jurisdiction of the County and not a designated historic resource, and the property owner has not been involved. The Historic Commission feels it is important. The application for development has been pulled. Chair Unger said that this is not a matter before the Historic Landmarks Commission and is at the discretion of the Board. Commissioner Baney stated that she is not interested in entertaining this or in further discussion of the issue Commissioner DeBone agreed, since it is a contentious downtown and City issue and should be dealt with by the City and the School Board. Chair Unger added that this is within the purview of the Bend Historical Commission and not the Historic Landmarks Commission. It does not seem appropriate for this group to address something that is not within the County's purview. There is no structure there. Mr. Anderson suggested providing a summary of this for the Board to send on to the Landmarks Commission. Mr. Lelack said he will send a brief message regarding this, as he does not see a reason to discuss this at a separate meeting. Whitney Hale discussed the employee recognition breakfast proposal for this year's County Fair. It seemed to be popular last year. They did not charge employees since it is supposed to be in recognition of them. The employees also got into the Fair the same day, and tickets for the concert that day. She can look into getting concert tickets for a different day, but the employees have to attend the event and attend the Fair the same day. They put together recognition packets for the employees, but needs funding for prizes. The Commissioners said they provided this funding themselves last year. Mr. Anderson observed that some of the items given away were County items that no one really wanted, so perhaps they can look into getting some nicer prizes. Money has already been budgeted for this event. The Board reviewed a draft letter to the AOC regarding dues. Chair Unger wanted language added regarding Deschutes County's support of neighboring counties. It will be finalized for Board signature. BANEY: Move approval of Board signature of the letter with this change. DEBONE: Second. Minutes of Board of Commissioners' Work Session Wednesday, May 4, 2016 Page 11 of 15 VOTE: BANEY: Yes. DEBONE: Yes. UNGER: Chair votes yes. Mr. Anderson said that Court Administrator Jeff Hall has been working on the Access to Justice Committee, in a partnership with the Court and the Bar Association. They have a charter with six members, and would like a local government representative appointed by the Board. They have suggested Seth Johnson, the Executive Director of the Opportunity Foundation. Chair Unger said that they are also looking at a Redmond representative, perhaps someone from Behavioral Health. Commissioner Baney asked if access is based on income or another factor. Erik Kropp replied that these are pro bono activities to provide services to those who do not qualify for Legal Aid. Commissioner Baney thought this should be directed more towards Neighbor Impact and social services individuals. The Opportunity Foundation is focused on a group that already has assistance in getting legal assistance. Chair Unger asked who else has been appointed. Mr. Kropp said there are two from the Bar, one from Legal Aid, someone from the library, and they want a Board appointment. Commissioner DeBone said he would like to talk about Neighbor Impact. Commissioner Baney added that they already get these calls. Commissioner DeBone stated that he will bring this up at the next Neighbor Impact board meeting. Mr. Anderson stated that the Red Rock biomass facility in Lakeview has been approved. Under federal law, they get credit for working with private land and not federal. Lake County is pushing for a pilot project to change federal law to allow this kind of work on national forest lands. Most of this waste ends up being burned because the facility does not want to accept it if there is no credit for it. It could be that environmental groups feel this might mean more logging in the forests. He wanted to confirm that the Board is supportive as a partner or stakeholder. Within the 125 -mile radius of the facility, there is also a lot of BLM land with juniper. Minutes of Board of Commissioners' Work Session Wednesday, May 4, 2016 Page 12 of 15 Commissioner DeBone feels the federal law should be changed. It might be very political, with opposition from solar and wind power industries. Meanwhile, the forests are burning up and federal dollars have to be used for fuel reduction and to put out fires. The Board indicated they are supportive of Lake County's efforts. Mr. Anderson stated that Dana Martin and Candi Botham from Extension/4-H met with the Commissioners separately to ask for assistance for a building expansion at the Fairgrounds. They want to put together a proposal for the budget committee. He, Wayne Lowry and Erik Kropp will meet with them, but want to know if the Board supports this idea. They want $500,000, which could be a grant or low-interest long-term loan. They have set aside $500,000 to match this over the years. This would be a multi-purpose building and the cost is estimated. Commissioner Baney said they have asked for $50,000 a year for ten years and are anticipating it will be approved. Commissioner DeBone stated that they said the same to him. Commissioner Baney noted that it cannot be an annual grant, and the Board cannot bind a future Board. Other districts would be asking for the same thing. 4-H representatives say they will provide staffing. However, this is not a mandated service and they need to look at other ways to do this. Mr. Anderson suggested a low-interest loan, but this comes with risk. Chair Unger said that he met with them at their building and told them that the Budget Committee will feel this is a big request. He suggested a loan as well. They could move forward today and set aside funds to pay it back over time. The Budget Committee might support this. Mr. Kropp indicated that they had been setting aside $50,000 a year for a while, but have not been able to do it recently. He is not sure how this can be secured. Commissioner Baney said it is disheartening that they clearly thought this was a small request. They are naive. They do not pay for the building they are in now. Commissioner DeBone recognized that small districts are not well funded. He asked if they should go to the voters. Mr. Anderson replied that they are not getting enough help from OSU/Corvallis. This needs to be put into perspective as to where they have been, where they are, and what their plans are. Minutes of Board of Commissioners' Work Session Wednesday, May 4, 2016 Page 13 of 15 Commissioner Baney said she prefers this go to the Budget Committee. Mr. Anderson stated that the objective is to offer guidance on their presentation. He can be blunt with them on the difficulties. They need to make their case to ask for a match, and why they cannot get more from OSU. They get the land free. The likelihood of an outright grant is slim. There are too many demands from others. The taxpayers would foot the bill. Regarding a loan, he wants to know how they would repay it. Commissioner Baney asked if the County can use the facility, or if it could fall under tourism, with a small grant out of the transient room tax. Mr. Anderson replied that it is hard to say. There is already a lot of space available at that site, and they are getting a lot of requests for the TRT funds. Some are referring to the cohesive strategy, a sports complex and the Sunriver request. Chair Unger added that the Sunriver Airport needs a lot of work. They cannot do a federal match but they need some kind of help, as a lot of planes come in there. Commissioner Baney said she is hesitant about opening that box. The money generated impacts their ability to have the resort. Mr. Anderson stated that the District's request is separate from the resort. Chair Unger asked if they can act soon on 4-H to try to get them ahead. Commissioner DeBone wants to know what the model is and why they need the space. Commissioner Baney said that there should be value to the University's commitment. At 3:10 p.m., the Board went into executive session. 5. Executive Session — Real Property. 6. Executive Session — Labor Negotiations. 7. Adjourn. Being no further discussion, the meeting was adjourned at 4:05 p.m. Minutes of Board of Commissioners' Work Session Wednesday, May 4, 2016 Page 14 of 15 APPROVED this /! Day of 2016 for the Deschutes County Board of Commissioners. UtAAA-- Alan Unger, Chair ATTEST: Recording Secretary Minutes of Board of Commissioners' Work Session Tammy Baney, VWe Chair _a/4 064-6. Anthony DeBone, Commissioner Wednesday, May 4, 2016 Page 15 of 15 Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS, 1:30 P.M., WEDNESDAY, MAY 4, 2016 Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be addressed at the meeting. This notice does not limit the ability of the Board to address additional subjects. Meetings are subject to cancellation without notice. This meeting is open to the public and interested citizens are invited to attend Work Sessions allow the Board to discuss items in a less formal setting. Citizen comment is not allowed, although it may be permitted at the Board's discretion. If allowed, citizen comments regarding matters that are or have been the subject of a public hearing process will NOT be included in the official record of that hearing. Work Sessions are not normally video or audio recorded, but written minutes are taken for the record. 1. Discussion of a Decision on Lower Bridge Property Land Use Appeals — Will Groves 2. Discussion of Widgi Creek Appeal Decision Schedule — Will Groves 3. Real Property Update — James Lewis Meeting dates, times and discussion items are subject to change. All meetings are conducted in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572. Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format, please call (541) 617-4747, or email ken.harmsa_deschutes.orq. Board of Commissioners' Work Session Agenda Wednesday, May 4, 2016 Page 1 of 2 4. Executive Session — Real Property — James Lewis 5. Executive Session — Labor Negotiations — Erik Kropp 6. 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. 7. Adjourn Meeting dates, times and discussion items are subject to change. All meetings are conducted in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572. Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format, please call (541) 617-4747, or email ken.harms(adeschutes.orq. Board of Commissioners' Work Session Agenda Wednesday, May 4, 2016 Page 2 of 2 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: April 14, 2015 TO: Board of County Commissioners FROM: Will Groves, Senior Planner RE: Deliberation on a conditional use, tentative subdivision plan, and SMIA site plan approval (247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA) to establish a 19 -lot residential planned development on three parcels totaling 157 acres, zoned RR - 10, EFU, FP, LM, and SMIA, and located between the Deschutes River and Lower Bridge Way west of Terrebonne. 1. Background The Applicant, Lower Bridge Road, LLC, requested conditional use, tentative subdivision plan, and SMIA site plan approval to establish a 19 -lot residential planned development on three parcels totaling 157 acres, zoned RR -10, EFU, FP, LM, and SMIA, and located between the Deschutes River and Lower Bridge Way west of Terrebonne. The Hearings Officer issued a decision on September 11, 2015 finding that the proposal does not comply with all applicable regulations. On September 23, 2015 Lower Bridge Road, LLC appealed the decision to the BOCC. By Order 2015-467, dated October 19, 2015, the Board initiated review of this application under DCC 22.28.050 through a de novo hearing. The Board conducted a de novo public hearing on January 6, 2016. The written record closed on March 4, 2016. Staff has developed a decision matrix to help the Board engage with the key decision points in this matter. II. Key Issues This deliberation summary of party positions is largely composed of direct quotes. Some quotes have been edited for brevity, clarity, or issue focus. M1 - Can a PUD application create open space lots on EFU zoned land? Quality Sernices Performed with Pride Issue Summary: The Hearings Officer found that PUD Tots cannot be formed out of property that includes EFU Zoned lands. The Applicant modified the application to remove 10.4 acres of EFU-zoned from the application by lot line adjustment. However, this lot line adjustment does not appear to remove the EFU-zoned portion of tax lot 1600, located at the north end of the proposed PUD, from the subject property. This issue appears not to have been directly briefed by parties. Staff has included arguments by parties directed at the 10.4 acres of EFU-zoned land, as those arguments should address the possibility of using tax lot 1600 EFU zoned land in the PUD. Applicant: The 10.4 acres of EFU zoned property is located at the southern boundary of the subdivision. See attached Tentative Plan map. The Applicant did not count the EFU zoned property in the subdivision either for density or for open space and did not propose to alter or otherwise divide the EFU zoned portion of the property. Under the Applicant's proposal the EFU zoned property boundary does not change and it remains a split zoned property with the adjacent RR -10 subdivision. The Board could choose to agree with the Applicant that the proposal does not result in a subdivision in the EFU zone and is permissible under the code. In hearings testimony, Applicant has agreed to remove the EFU zoned portion of tax lot 1600 from the PUD prior to final plat approval. Hearings Officer: The Hearings Officer finds subdivisions and PUDs are not uses permitted outright or conditionally in the EFU Zone. The applicant appears to argue that because the EFU- zoned area will be included in an open space tract and may be engaged in agricultural use, it can be included in the PUD. I disagree. While agricultural use is consistent with this area's zoning, including it within a subdivision is not. Opponents: Opponents argued that EFU-zoned land could not be included in the PUD, following the Hearings Officer's findings. Staff Comment: Staff recommends that any approval be conditioned on a finalized lot line adjustment removing the EFU zoned portion of tax lot 1600 prior to final plat approval. M2 - Can a PUD application include FP zoned land? Issue Summary: This PUD application includes the creation of lots in the Flood Plain (FP) Zone, where "Planned Development" is not one of the allowed uses. The proposed use of FP zoned lands is the creation of lots through subdivision for the preservation of open space. Both subdivision and open space are allowed uses in the zone. However, under the rules of statutory construction the exclusion of "Planned Development" from the Flood Plain Zone is assumed to be meaningful. Staff recommended the Applicant apply for a text amendment to resolve this issue prior to application. Applicant: Subdivisions and open space are both listed uses in the Flood Plain Zone but planned developments (a clustered form of subdivision) are not. The Hearings Officer acknowledged the proposal meets the purpose and intent of the Flood Plain Zone and also recognized that the drafters of that zoning ordinance could have intended to allow a project such as the Applicant's where residential lots were clustered outside of the zone and all Flood Plain Zoned property was contained in an open space tract, but she declined to interpret the ordinance. 247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA Page 2 of 23 Open space is a listed use in the Flood Plain Zone. It is not a listed use in any other zone and the Planning Division does not accept or process applications for open space as a use separate from some development of which it is a component. In fact, open space is not even listed in the Open Space and Conservation Zone. The present proposal provides more protection for the resource than a subdivision without clustering (allowed conditionally in the Flood Plain Zone) by containing all Flood Plain Zoned property in an open space tract, prohibiting development within that braot,- for increased mechanism resource. BnaUy, the proposal is consistent with exactly what the Applicant proposed and the Board envisioned when it zoned the property RR -10 in 2008. The Applicant planned a cluster development with all river �onbaQe beingprotected in open space, the Applicant showed this plan to the Board and the Board approved it, allowing the Applicant to add 30 acres of riverfront property from the westside to the RR -10 zone for the eastside to be preserved as open space and make enough acreage to get a 20 lot pianned development. Hearings Officer: Neither "cluster development" nor "planned development" is a use permitted outright or conditionally in the FP Zone. The Hearings Officer finds the text and context of the provisions of Title 18 defining and governing the three types of subdivisions make clear they have different characteristics and are intended to be reviewed and approved under different substantive standards. While it may seem counterintuitive not to permit use of FP -zoned land for open space within a planned development where such use would protect these areas consistent with the purpose of the FP Zone, | find the plain language of the FP Zone does not allow such development. Opponents: The Applicant proposes that the BOCC should reach the unfounded conclusion that the listing of "open space" as an outright permitted use in the FP zone means "open space associated with planned development," despite the fact that neither planned developments nor cluster developments are permitted or conditionally permitted uses in the FP zoning text (in contrast to standard "subdivision or partitioning," which are explicitly included in the FP zoning text). The Applicant's suggested interpretation is contrary to the plain language of the Flood Plain ord|nence, and would improperly increase density and the number of small view lots clustered on the most sensitive lands with the greatest resulting aesthetic impact. Staff Comment: The Board is afforded deference on plausible interpretations of local code at LUBA. Staff is uncertain if the applicant's proposed interpretation is plausible, given the rules of statutory construction. Staff believes that o text amendment would be a clearer path to evaluate and formalize (or not, at the Board's discretion) the applicant's proposed interpretation. The Board will need to decide if the applicant's interpretation is plausible at this time. M3 - Can FP zoned land be counted towards PUD hmmsima density and density bonuses? Issue Summary: This question is only at issue if the Board concludes that a PUD application can create lots in the FP Zone (see summary of Mi, above). Planned Unit Developments are afforded a density bonus from one unit per 10 acres to one unit per 7.5 annae, increasing the number of allowed units in the development. This trade-off is given for the preservation of otherwise developable land as restricted open space area. The PUD proposal relies on FP zoned land as part of density calculation to aHow for 19 residential lots. 247- 5-0OU184'CU 195'TP 521-A, 689 -MA Page 3 of 23 Applicant: All acreage included in the project area calculations is available for gross acreage calculations for the PUD. The approximately 30 acre area west of the river was specifically added to the "East Area" zone change to allow its use for open space calculations in a future planned development. The Board specifically understood a planned development would be proposed with lots clustered so that open space could be preserved and site disturbance minimized. See BOCC Decision, pp. 10, 12, 16. Likewise, the gross acreage of the site, including the area to be dedicated for Lower Bridge Way can be included in the overall subdivision acreage for the planned development. See "Lot Area" definition at DCC 17.08. The portion of the property zoned Flood Plain is also available for inclusion in the overall acreage because open space and portions of residential use not containing structures are outright permitted uses in the Flood Plain Zone. Opponents: After deducting undevelopable areas, there are 95.73 acres remaining for development. At 10.3 acres per lot, 9 Tots would fit on this site. Applicant's proposal of 19 lots is a 111% increase over the RR -10 standards applicable to this site. Otherwise undevelopable Flood Plain Zoned lands should not be leveraged to increase the density of a rural PUD in an environmentally sensitive area. Hearings Officer: Approximately 30 acres of FP -zoned land included in the subject property cannot be included in the density calculation, leaving approximately 116 acres of developable land for the PUD. At the maximum allowed density of one dwelling per 7.5 acres, there would be sufficient developable land for only 15 dwellings and the required 65 percent open space. Staff Comment: The Board will need to decide whether to interpret the code to allow FP zoned lands to count towards the overall residential density calculation. Staff notes that dwellings are prohibited on FP zoned lands unless no alternative location exists and that these lands are not generally residentially developable. M4 - Where is the boundary of the FP zone? Issue Summary: The Applicant correctly notes that the FEMA -provided flood plain maps, adopted as the Flood Plain Zone by the County, contain obvious inaccuracies. The flood plain in the project vicinity is an "unnumbered A zone", meaning that flood areas were designated without detailed flood calculations or detailed local topographic information, due to the low density of development in the area. This issue arises nationwide and FEMA has a technical bulletin directing how to refine the flood plain in this case. The applicant was provided with this information in a pre -application meeting and declined to use any of the FEMA accepted methodologies for refining flood plain boundaries. It is unclear to Staff what the Applicant hopes the Board will do in the face of the flood map inaccuracy. Applicant: Flood Plain Zone in this area is designated Zone A, which is based on FIRM maps with no base flood elevation data. The FIRM map when applied to the significant amount of river frontage on the subject property extends vertically 60' in one area and through the middle of the river channel in another. It clearly does not represent a true flood boundary. Hearings Officer: Did not directly address this issue. Opponents: While the Applicant may have valid concerns about the accuracy of the Flood Plain mapping, the burden is upon the Applicant to present a thorough and complete application as 247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA Page 4 of 23 opposed to raising generalized challenges regarding the accuracy of existing zone designations. These concerns could and should have been addressed prior to submittal of the present application, through affirmative action by the Applicant to complete a flood map amendment or similar process as recommended by County staff during the pre -application meeting. Staff Comment: The Flood Plain Zone boundary was provided by FEMA and adopted by the County. Any alteration of that boundary should be conducted in accordance with FEMA guidance and all applicable regulations. M5 - Is the "conditional use" the whole PUD or simply the chances in density and layout afforded in a PUD in excess of a conventional subdivision. Issue Summary: Planned Unit Development is a conditional use with special standards (See DCC 18.128.210) in the RR -10 Zone. These special standards place additional restrictions over single-family dwellings or conventional subdivisions. The applicant contests that these restrictions should only apply to those Tots that are afforded by the PUD over a conventional subdivision. The number of additional Tots afforded is a matter of debate and ranges from 4 to 10 lots. Applicant: The Hearings Officer erred in failing to apply the conditional use criteria to the only portion of the development that is conditional, which is not the residential use but instead the difference between 15 homesites and 19 homesites, or essentially 4 additional homesites. Hearings Officer: The general conditional use approval criteria apply to the whole application because the applicant's proposal is for a PUD and not for an individual single-family dwelling or non-clustered subdivision. Opponents: The Hearings Officer found that the conditional use criteria of DCC Section 18.128.015(A)(I) apply to this application and she found the criteria require a finding that Applicant demonstrate the suitability of the subject property for PUD development. Staff Comment: The Hearings Officer found all aspects of the PUD were part of the conditional use. Because some other similar use (non-clustered subdivision) is allowed without conditional use approval in the zone does not make some portion of the proposed conditional use not conditional. All of the proposed lots are designed and sited in a manner only allowed under the PUD standards. M6 — Are required road improvements "roughly proportionate" to traffic impacts? Issue Summary: County Code requires applicants to improve sub -standard adjacent right-of- way, in this case Lower Bridge Way, to County standards as part of any partition or subdivision approval. Accordingly, the Hearings Officer included a condition of approval requiring that Lower Bridge Way be widened by the applicant from 24 to 28 feet. Under Nollan and Dolan, required off-site improvements must be related to an impact created by the project, serve a legitimate public interest, and the requirement must be roughly proportional to the impact. The proposed PUD would add 35% to the existing traffic on Lower Bridge Way. The Applicant contends that requiring the Applicant to bear the full burden of this road improvement project is not roughly proportionate to the PUD's impacts. 247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA Page 5 of 23 Applicant: The Hearings Officer erred in concluding the applicant should be required to improve the abutting segment of Lower Bridge Way to County standards. The impacts of the proposal to add traffic associated with 19 residential lots is not roughly proportional to the cost of the required improvement of approximately 3,000 lineal feet of abutting roadway, with possible relocation of power lines. The applicant is dedicating the Lower Bridge right-of-way but any additional improvements are not warranted and in violation of the Oregon Constitution and the Fifth and Fourteenth Amendments to the U.S. Constitution. Hearings Officer: Did not directly address issue. Opponents: Staff was unable to locate briefing on this issue. Staff Comment: Staff believes the Applicant's argument is reasonable and that the Hearing Officer's condition should be modified in some way to limit the Applicant's obligation to 35% of the project cost. However, the entire required improvement must be completed prior to final plat approval. Hearings Officer's Condition #16 sates: 16. The applicant/owner shall dedicate right-of-way for, and improve to Deschutes County's standards for rural collector roads set forth in Table "A" of Title 17, the abutting segment of Lower Bridge Way. Staff recommends modifying Hearing Officer' Condition #16 as follows: 16a. Prior to final plat approval, the applicant/owner shall dedicate right-of-way for the abutting segment of Lower Bridge Way to Deschutes County's standards for rural collector roads set forth in Table "A" of Title 17. 16b. Prior to final plat approval, the abutting segment of Lower Bridge Way shall be improved to Deschutes County's standards for rural collector roads set forth in Table "A" of Title 17. The applicant shall be responsible for 35% of the cost of this project. A cost-sharing methodology acceptable to Deschutes County Legal Department and Deschutes County Road Department shall be agreed upon and implemented prior to final plat approval. M7 — Did the HO collaterally attack the 2008 PAIZC approval? Issue Summary: A collateral attack is an attempt to impeach or overturn a judgment rendered in a judicial proceeding, made in a proceeding other than within the original action or an appeal from it. Here, that Applicant argues that the Hearings Officer's findings collaterally attacked the Board's findings in PA-08-1/ZC-80-1, the plan amendment and zone change for the subject property. It is unclear from the record materials, but staff believes that the applicant argues that the Board has already found that the site is suitable for residential use, provided it receives DEQ/OHA "NFA" letters prior to final plat approval and that issues of environmental safety cannot be revisited. Applicant: The Hearings Officer erred when she collaterally attacked the BOCC's prior decision and found the BOCC improperly substituted a condition of approval for the necessary findings of compliance in the prior zone change decision. Hearings Officer: The Board's approach to deferring findings of environmental safety was likely impermissible under existing case law, but no change to the ZC/PA was imposed. Nothing 247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA Page 6 of 23 precludes the Hearings Officer or Board from imposing additional restrictions, beyond those in the ZC/PA, at this point for the proposed PUD. Opponents: Staff was unable to locate briefing on this issue. Staff Comment: Staff believes the Hearings Officer's decision is not a collateral attack on the zone change/plan amendment (ZC/PA). While the Hearings Officer found that BOCC's approach to deferring findings of environmental safety was likely impermissible under existing case law, no change to the ZC/PA was imposed. Nothing precludes the Hearings Officer or BOCC from imposing additional restrictions beyond those in the ZC/PA contemplated on the proposed PUD. This is, in part, because the PUD is subject to different applicable criteria (DCC 18.128.015, general suitability critera) than the plan amendment and zone change. M8 — Does the HO denial of the PUD represent a "taking"? Issue Summary: The "takings" issue is addressed in the Fifth Amendment to the U.S. Constitution, which reads in part, "nor shall private property be taken for public use, without just compensation." The Supreme Court has established clear rules that identify situations that amount to a taking. It has found "takings" where the landowner has been denied "all economically viable use" of the land. The Applicant has argued the failure to approve the PUD, as proposed, would represent such a taking. Applicant: The Hearings Officer's decision alone or combined with any one or more of the errors alleged above, leaves applicant with no viable economic use of the properly and constitutes the taking of it and entitles applicant to just compensation under Article 1, Section 18 of the Oregon Constitution and the Fifth and Fourteenth Amendments to the U.S. Constitution, as well as the right to attorney's fees under ORS 20.080 and 42 U.S.C. 1983. Hearings Officer: Did not directly address issue. Opponents: Staff was unable to locate briefing on this issue. Staff Comment: The applicant has been denied by the Hearings Officer for a PUD. The applicant has not applied for the approximately 15 -lot, non-clustered subdivision on the property that is a non -conditional use. The applicant has also not also applied for the single dwelling allowed on the property without conditional use or subdivision approval. Only one use, a PUD, has been presently denied on the property. Staff notes that the Hearings Officer's denial primarily rests on the applicant designing a PUD that exceeds the number of lots in the allowed in the zone, voluntarily configuring those lots as to make them undevelopable without special exceptions, and asking for residential approvals prior to completion of environmental investigations of the property. Nothing in the present denial indicates that a properly designed PUD application could not be approved on the property. As such, the applicant's claims the property has no viable economic as a consequence of the Hearings Officer's denial use are unsubstantiated. Staff believes that were the Board to deny this application, the denial would not constitute a taking. M9 — Does sufficient financing exists to assure the proposed development will be substantially completed within four years of approval. 247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA Page 7 of 23 Issue Summary: DCC 18.128.210(6)(6) requires "That sufficient financing exists to assure the proposed development will be substantially completed within four years of approval." In prior decisions subject to this criterion, the County found that the relatively small projects could be completed without a specific demonstration of project cost and available financing. The Hearings Officer found that a conclusory statement on this issue without evidentiary support was insufficient. Applicant: The Hearings Officer erred in concluding there was not sufficient evidence of financing to assure the proposed development will be substantially completed within 4 years of approval. Significant expenditures have been made and are planned. Hearings Officer: The applicant's burden of proof states "sufficient funding is available to complete the development as proposed within four years of approval." However, the applicant did not submit any evidence supporting this statement. The Hearings Officer finds a simple conclusory statement does not constitute sufficient evidence to demonstrate compliance with this conditional use approval criterion. Opponents: Applicant's counsel, Attorney Lewis, admitted in the January 6, 2016 public hearing that the owners don't have the money to clean up the site. (On a separate level, this is perplexing considering Applicant's open acknowledgement of the money spent on the legal team, the development team, and the engineering team employed in 2008's process and this one.) Applicant has described its cleanup plan consistently for a decade: let them sell Tots, and they will use the proceeds from the sales to clean up the site. A decade later, the plan still makes no sense. How can Applicant use money from lot sales to clean up lots, if the lots to be sold to innocent buyers must be cleaned up before they are sold? The Applicant's approach of using lot sale proceeds to fund remediation throughout the former industrial site, would be tantamount to asking the BOCC to approve a risky "pay now, clean later" development model. The BOCC should not support a development model where lots are sold off to transfer the burdens and obligations to innocent purchasers, with the developers receiving the financial gain without assurance of performance of future conditions. This is particularly true given the poor track record of performance by the Applicant in terms of remedial efforts undertaken from 2008 to present. This is an unacceptable risk for the County and the future residents of the proposed development. Staff Comment: Staff believes that compliance with this criterion would require that the record contain 1) estimated project costs, 2) documentation that the Applicant has the financial resources to meet these costs, and 3) evidence that the development will be substantially completed within four years of approval. The Applicant did not provide information to determine compliance with this criterion. Staff is uncertain if compliance is even possible at this point, given that project costs cannot be determined until environmental investigations are complete and a scope of work for remediation is established. M10 — Does the Historic Sian render proposed lot 1 undevelopable? Issue Summary: The historic Lynch and Roberts Store Advertisement sign is located near the northwest corner of the subject property. The sign is painted on rocks adjacent to Lower Bridge Way. In its 2008 decision, the board included as Condition of Approval 4 a prohibition against any development within a 100 -yard radius of the sign and a requirement that the applicant post markers near the sign to prevent trespass. Condition 4 also required the applicant to include in 247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA Page 8 of 23 the CC&Rs provisions obligating PUD lot owners to protect the area within a 100 -yard radius of the sign from development and trespass and to maintain the posted markers. It is unclear from the prior condition of approval if precluded "development" includes only structures or includes septic systems, wells, or significant earthmoving projects. It is also unclear, based on documentation in the record, if Lot 1 is residentially developable, given that approximately 40% of the lot is in the area precluded for development by the sign restriction. Applicant: Did not brief this issue. Hearings Officer: The Hearings Officer did not directly address this issue. The Hearings Officer found that imposition of the conditions of approval will protect this historic sign to the greatest extent practical. Opponents: Expressed concerns regarding the ability to develop Lot 1, given the sign setback. Also expressed concerns about the adequacy of the conditions of approval to protect the sign. Staff Comment: The applicant has an affirmative obligation to demonstrate that the site is suitable for residential development, given known development constraints. The ability to develop proposed Lot 1 will depend on the Board's interpretation of Condition #4. Does "development" include only structures or also include septic systems, wells, or earthmoving projects. Staff believes it is plausible that Lot 1 could be improved with a residence even if roughly 40% of the lot is rendered unusable by the sign protections. However, the applicant did not provide a figure showing a septic/well/dwelling layout for Lot 1 consistent with Condition #4. M11 — Do the proposed CC&Rs adequately describe the environmental history? Issue Summary: Condition of Approval (CoA) #5 of the 2008 PA/ZC requires an informational section in the CC&Rs that detail the history of the site, including the remediation efforts taken by the applicant and its predecessors in interest. There is debate in the record if the proposed documentation is adequate. Applicant: Provided draft language to comply with this criterion. Hearings Officer: Did not directly address this issue. Opponents: Provided CC&Rs do not divulge the nature, type and extensiveness of the toxic contamination known and suspected on the site and misrepresents the sites condition to potential buyers. Staff Comment: The supplied draft is a reasonable summary. However, given that testing and clean-up of the site is not complete, it is not possible to provide a full environmental history of the site at this point. Staff recommends the Board direct the applicant to develop a final environmental history for the CC&Rs, following DEQ and OHA final approval of the site for residential use and prior to final plat approval via the following condition of approval: To comply with PA-08-1/ZC-08-1 condition of approval (1)(5), the applicant shall include an informational section in its CC&Rs that detail the history of the site, including the remediation 247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA Page 9 of 23 efforts taken by the applicant and its predecessors in interest. This informational section shall be updated prior to final plat approval to reflect the results of environmental testing, remediation activities undertaken, issuance of DEQ/OHA "NFA" letters, completion of the DEQ VCP program, as well as any ongoing environmental issues or obligations identified as part the completed VCP program. M12 — Will the proposed development adversely impact the rural character of the area? Issue Summary: DCC 18.128.210(A)(8) requires that the effect of the proposed development on the rural character of the area be considered. There is considerable debate in the record if the lots, densely clustered on the canyon rim and highly visible from the surrounding area would adversely impact the rural character of the area. Applicant: Staff was unable to locate briefing on this issue. Hearings Officer: Dwellings clustered on two -acre lots still constitute "rural" development and not "urban" development. Inclusion of over 100 acres of open space will preserve the rural character of the area. Opponents who live across the Deschutes River east of the proposed PUD object to having to look at dwellings on the subject property. However, I find that with the 2008 rezoning of the subject property to RR -10, opponents no longer had reasonable expectations that the subject property would remain undeveloped. Opponents: The view of all the houses on these crowded lots would be unavoidable from Lower Bridge Way as it begins its descent to cross the Deschutes River. The applicant's proposal is neither inconsequential nor benign. It permanently changes the rural character of the area. It does not appear that the Applicant made any effort to reduce the effect of the development on the area's rural character, to preserve existing natural features or to minimize environmental impacts. The project site has extreme visibility from Teater Avenue, Lower Bridge Way, and the Wildlife Preserve; and that the 111 % density increase that would occur from the applicant's proposal is crowded along the river canyon rim on two acre lots. The rural character of the area would suffer needlessly from the applicant's proposal because they can successfully develop the property without employing a Planned Development approach. Because the proposal's density exceeds community standards and RR -10 standards by such a great percentage, it's no surprise that the visual depiction of the 19 lots in a tight row overlooking the Deschutes River is not compliant with DCC 18.128.210(A)(8). The rural character of this zone is not followed by this proposal, and no matter what environmental remediation is performed, the application should be denied. Staff Comment: The impact on the rural character of the area is a deeply subjective question. While the close proximity and high visibility of the proposed homesites are uncharacteristic of the area, the proposal includes large areas of land permanently preserved as open space. M13 — Is the site suitable for residential development (liven prior earthmoving and geotechnical stability? 247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA Page 10 of 23 Issue Summary: Soils disturbed by earthmoving and mining at the site may present difficulties for home construction. Diatomaceous Earth may also be an unsuitable material upon which to construct dwelling foundations. Applicant: The Wallace Group issued a Geotechnical Exploration Report on the subdivision site (see Exhibit PH -14). The geotechnical investigation concluded that the site was suitable for the proposed development from a geotechnical perspective and that slope stability analyses will be performed on a lot by lot basis when construction/development plans are available. Mr. Wallace also notes that development of the site will have strict set -back requirements and that Civil Engineering Grading Plans for the project will incorporate berm removal/grading to mitigate slope instability and erosion risks. This report is a comprehensive on-site geotechnical report by the Wallace Group conducted by geotechnical engineers. It is substantial evidence upon which the Board can and should rely to conclude the site is suitable for the proposed use. Hearings Officer: Did not directly address this issue. Opponents: The record does not contain any substantive geotechnical study verifying that individual building sites within each proposed lot could be safely developed in light of concerns regarding waste rock fill deposits. A full geotechnical analysis in conjunction with the application is required. Staff Comment: This issue was not fully developed before the HO. The Applicant's geotechnical report does not evaluate each proposed lot, but finds that any historic fill or diatomaceous earth can be remedied with "...up to 4 feet of engineered fill or aggregate base course...". Staff recommends that the Board find that the applicant's geotechnical report demonstrates that any stability flaws at the building sites can be remedied with conventional soil engineering solutions. M14 — Is buried rimrock considered "rimrock"? Issue Summary: Aerial photos in record indicate that, between 1943 and 1951, overburden was pushed over the west canyon rim between lots 11 and 15. It appears that limited rimrock, near the river level, may have been buried. In the County Code, setbacks from rimrock are required to limit the visual impacts of structures from the river. Applicant: Staff was unable to locate briefing on this issue. Hearings Officer: Did not address this issue. Opponents: A thorough survey of the buried rimrock should be required in order to determine the appropriate rimrock setback requirements on those proposed lots impacted by past dumping. Staff Comment: A finding that buried rimrock is no longer rimrock would set a precedent that would encourage earthmoving in sensitive river canyons to avoid rimrock setbacks. However, the rimrock burial in this case is over 60 years old and that work was not undertaken to circumvent rimrock setback rules. Also, from available aerial photos, it appears that the rimrock, if any, was located near the river and well over 50 feet from any potential dwelling location. Staff recommends the Board find that rimrock buried through artificial means is still subject to rimrock standards. However, the applicant -proposed rear setbacks on lots 11 247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA Page 11 of 23 through 15, ranging from 100 to 170 feet are sufficient to ensure compliant setbacks from the buried rimrock, based on available aerial photography. M15 — Should "rimrock-like" protections be imposed on the non-rockv cannon rim? Issue Summary: In the County Code, setbacks from rimrock are required to limit the visual impact of structures from the river. The subject property is unusual in that most of the top of canyon rim is not defined by an exposed rock face that would trigger rimrock setbacks. Even if the earthen surface was rocky, it would not meet the rimrock definition as the angle of repose of the soil does not typically exceed 45 degrees. That said, without some sort of top of rim setback, the proposed development would likely have significant visual impacts on the river, even with the required vegetative screening of the Landscape Management Combining Zone. In addition, DCC 18.128.210 requires the preservation of special terrain features. Applicant: The Applicant conducted an on-site investigation to create setbacks for each individual lot to demonstrate the proximity of each proposed dwelling to the river and avoid the need for any conditions or exceptions to rimrock setbacks. The memo submitted as Exhibit PH - 14 contains the proposed minimum rear yard setbacks for each individual lot based on the Applicant's on-site investigation. The proposed setbacks are designed to minimize visibility from the river and meet County and State requirements for preservation of scenic resources. These are minimum rear yard setbacks and, as discussed, each structure will be required to seek approval from State Parks that could result in a greater setback to meet State scenic waterway requirements. Hearings Officer: Did not directly address this issue. Included proposed condition of any approval, C, quoted below. Opponents: Staff was unable to locate briefing on this issue. Staff Comment: The Board will need to decide if setbacks specific to this subdivision are needed to address the unusual canyon configuration in the absence of significant rimrock. The Board could either 1) find that rimrock setbacks only apply to exposed rock faces and that no special setbacks from the canyon rim are warranted, or 2) find that development on the canyon rim would result in significant visual impacts to the Deschutes River if structures were not set back from the canyon rim. To mitigate these impacts the Board could include conditions of approval requiring: A. The height of any structure shall not exceed the setback from the edge of the canyon rim. B. No structure (including decks) shall be located closer than 20 feet from the canyon rim. The Board will also need to confirm that the Hearings Officer's proposed condition of approval is sufficient to protect the canyon slope and riparian areas, when combined with other requirements. C. The applicant/owner and its successors, including individual lot owners, shall prohibit the following activities within the river canyon below the upper bench/plateau: changes in the natural grade; construction of structures; and the alteration, removal 247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA Page 12 of 23 or destruction of natural vegetation, except as part of an Oregon Department of Fish and Wildlife approved habitat enhancement project. M16 — Are the proposed lots developable. aiven applicable constraints on the building lots? Issue Summary: Although the proposed lots are approximately 2 acres in size, significant portions of the proposed lots are undevelopable due to the fact that each lot has significant lot area below the canyon rim. In addition, rimrock setbacks, special canyon rim setbacks (if imposed), and separation requirements between wells and septic systems will significantly constrain development. The Hearings Officer found that it was not possible to determine that the lots were developable, given applicable constraints on the building Tots. Since then, the applicant has provided rimrock and rear setback figures showing the buildable area of the proposed lots. Applicant: To address this on appeal, the Applicant has located and mapped all rimrock on the lots, located and mapped the line on each lot for the required rimrock setback and proposed increased setbacks to demonstrate compliance. The Applicant also submitted a typical building footprint and utility facilities to demonstrate all lots can be developed with a dwelling, drainfield and well and fully comply with the rimrock setbacks in the LM zone without the need for any exceptions. This evidence constitutes substantial evidence upon which the Board can rely to conclude the size, shape and configuration of the lots are suitable for the proposed use. Hearings Officer: Applicant has not demonstrated that each lot can be developed with a dwelling, on-site septic system and individual well in a manner that assures the dwelling is at least 50 feet from any rimrock, and that all other yard and setback requirements in the LM Zone can be met. Opponents: Opponents argue that the Board must affirmatively establish that the lots are suitable for residential development given the cumulative effect of applicable criteria. Staff Comment: Staff believes this question is focused on the ability to develop the lot based on physical constrains (well -septic separation, soil stability, topography) as well as regulatory constraints (regular setbacks, rimrock setbacks, site-specific setbacks). The applicant's geotechnical report indicates that any soil deficiencies could be remedied. The applicant's example figures show that it is feasible to develop the lots given physical and regulatory constraints. Lot specific septic evaluations are typically required as a condition of final plat. Staff believes the applicant has demonstrated that it is feasible to site residences on the proposed Tots. Conversely, there is no evidence in the record demonstrating clearly that any proposed lot is undevelopable. M17. M18. M19 - Is the property a suitable location for residences, given dust concerns? Issue Summary: The greater mine site, including the east and west areas, has been a very significant generator of fugitive dust. Following large-scale surface disturbance, active and natural revegetation (visible in aerial photos from 2006-2014) has somewhat improved conditions. Dust above natural background levels can exacerbate health problems and the crystalline silica associated with unprocessed diatomaceous earth (DE) and processed DE (Cristobalite, a carcinogen with increased crystalline silica content) is of particular concern. 247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA Page 13 of 23 Surface disturbing activities, including site preparation and surface mining, could cause significant dust problems if not adequately controlled. Applicant: The Applicant worked with DEQ to modify the dust control plan for the east side, to create a dust control plan for the west side, to create provisions in the CC&Rs for dust control compliance, and identify a dust control monitor and contact information in the event of any high wind, or other conditions which could create airborne dust. The community has a proposed on- site 10,000 gallon cistern near the intersection of proposed roads C and E, and as evidenced by the dust control plans, systems in place to ensure airborne dust is controlled and kept to a minimum. In addition to the dust control plans, the Applicant conducted on-site soil testing at locations on both the east and west side Lower Bridge Way to verify the levels of crystalline silica in the soils were not at harmful levels and in fact were no greater than what naturally occurs in the native DE. (See Applicant's 2/19/16 submission) Opponents: The Applicant's dust control plan is not evaluated by state agencies, lacks detail, is not based on verifiable science, and is wholly unreliable. Opponents were also concerned that any water use for dust control or irrigation will require a permanent water right. OHA's David Farrer testified at the January 6, 2016 public hearing as to the known harms of Cristobalite. He admitted to Commissioner Baney upon questioning that if Cristobalite is being inhaled at the site, the health hazard is no longer "indeterminate" as earlier stated. He acknowledged that OHA didn't know about the crystalline material's existence on site at the time, because none was revealed in samples. He concluded there is a lack of information about the site. The latest analysis from Wallace was submitted as PH -1 through PH -7 in Applicant's Feb. 19, 2016 Post -Hearing Submittal to the Record. That analysis concludes that the six samples taken over 565 acres, though a wholly insufficient ratio of approximately 1 sample for every 94 acres, with only 1 on the east side of the subject property, yields Cristobalite in every single sample. This carcinogen rests on the surface where the samples were taken. DEQ/OHA: Airborne dust from any source can cause short-term respiratory irritation, but more information is needed to evaluate possible long-term effects at this site. EHAP considers inhalation of airborne dust emanating from this site to be an indeterminate health hazard. • EHAP's early data review indicates there is not enough silica in the airborne dust to cause silicosis or an increased risk for lung cancer, but more data is needed to rule out the possibility. • EHAP needs more information on particle size and concentration to determine whether nearby residents are at higher risk for other, long-term respiratory problems. • Continue efforts to control dust, and include dust suppression plans for any future activities. Hearings Officer: Based on the foregoing discussion, the Hearings Officer finds the applicant has not demonstrated the subject property is suitable for the proposed PUD considering blowing DE dust. I find the current state of SM Site 461 with large areas of exposed DE, the location of SM Site 461 west of the subject property, the potential for future mining of SM Site 461, and the presence of a significant amount of DE on the subject property, do not support a finding that blowing DE dust does not and will not present a health hazard to future PUD residents -- or that it is feasible to assure no health hazard from blowing DE dust will occur in the future through imposition of conditions of approval. I find particularly significant the evidence that re -vegetating and site watering efforts on SM Site 461 have not been successful in securing and covering the DE on the site, and that there is a significant amount of DE on the subject property. I find this 247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA Page 14 of 23 evidence simply does not support imposing a condition of approval requiring further similar mitigation actions to reduce or eliminate blowing DE dust. The Hearings Officer also recommended the following condition of approval: "The applicant/owner shall provide cash or a performance bond in favor of Deschutes County, and acceptable to Deschutes County Legal Counsel, for the cost of remediating DE dust on SM Site 461 and the subject property...." Staff Comments — DE Dust Hazard: The Applicant's Environmental Consultant concludes that unprocessed DE is unlikely to represent a special hazard above other dust sources. Fugitive dust has not been adequately captured for testing for processed DE content. On 1/26/16, the applicant analyzed 6 samples of DE from the west area, including an undisturbed in -ground sample of DE. Testing concluded each sample had similar silica characteristics and that, confusingly, even the undisturbed in -ground DE sample showed low levels of processed Cristobalite. The study noted that Cristobalite and naturally occurring feldspar would be undistinguishable under the test. Consequently, it is difficult to determine what percentage of the "Cristobalite" detected was actually processed DE. While samples were obtained from likely DE processing locations, the report cautions that higher concentrations could exist on site. From reading DEQ/OHA comments, staff understands that DEQ/OHA are of the opinion that robust dust control could be adequate to mitigate dust health hazards, regardless of processed DE content. Staff Comments — West Area Current Dust Hazard (M17): The dust hazard presented to the proposed subdivision, given the current condition of the west area, is a matter of debate in the record. Following large-scale surface disturbance, active and natural revegetation has somewhat improved conditions. The Hearings Officer found that the current vegetation was inadequate to control existing dust problems. The applicant has noted that air quality complaints to DEQ have ceased, but opponents say this is because they were not getting adequate response to these complaints and gave up. The Hearings Officer envisioned a binding and bonded plan would be proposed to the Board to stabilize existing conditions across both the east and west areas of the mine. No such plan was brought forward by the applicant. Initial results on the contamination of west -area soils, and likely contamination of dust, indicate low or indeterminate levels of Cristobalite in the samples. Since no site stabilization/reclamation/remediation is proposed at this time, the Board will need to determine if the applicant has demonstrated that subject property is a suitable site for the proposed PUD given existing fugitive dust issues. Staff Comments — East Area On -Site Dust Hazard (M18): The Applicant proposes to control on-site dust by requiring project operators of Construction, Demolition, Excavation, Extraction and Other Earthmoving Activities to submit a Dust Control Plan to the Lower Bridge Road Subdivision Homeowners Association (LBR HOA) if at any time the project involves: Residential development, Subdivision infrastructure construction, and/or Moving, depositing, or relocating of more than 10 cubic yards of bulk native soil or imported fill materials. (See Applicant's 2/19/16 submission, PH -5) The applicant proposes that the HOA review and enforce these dust control plans. The template dust control plan was reviewed by DEQ and edited to reflect DEQ comments. Staff is concerned that this approach may be the "plan to make a plan" that LUBA has repeatedly found impermissible as a condition of approval to address present or potential future non-compliance with applicable criteria. 247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA Page 15 of 23 However, this problem can be avoided if a clear condition preventing off-site dust can be included. This has the added benefit of adding a County enforcement nexus, as the HOA may be unable or unwilling to enforce the requirements. As DEQ commented, "Basically it is common sense if visible emissions (fugitive dust) is observed, get water on it." Staff recommends this core goal be included in a condition of any approval as follows: On-site construction, demolition, excavation, extraction and other earthmoving activities involving residential development, subdivision infrastructure construction, and/or moving, depositing, or relocating of more than 10 cubic yards of bulk native soil or imported fill materials shall comply with the following provisions: a. The operator of any such project shall adhere to the requirements of the Lower Bridge Road Residential Development Dust Control Plan submitted as PH -5, dated 2/19/16, including any future revisions of this plan reviewed and approved by Oregon Department of Environmental Quality. b. The property owner shall ensure that one or more water haul trucks with access to an adequate water supply for dust suppression is on site for the duration of any such project. c. The property owner shall ensure that visible dust emissions from areas disturbed by any such project at no time cross the outer boundary of the subdivision. This provision shall apply only to those projects commenced after January 1, 2016. This provision shall apply to areas disturbed by any such project in perpetuity. Staff Comments — West Area Future Dust Hazard (M19): Earthmoving activities on the west area of the former mine site could have significant adverse dust impacts to the residents of the proposed subdivision. The applicant has agreed that no mining will take place during pendency of the Resolution of Intent to Re -zone and that any future earthmoving or mining would be required to submit and obtain DEQ/OHA approval of a dust control plan. Again, Staff is concerned that this approach may be the "plan to make a plan" that LUBA has repeatedly has found impermissible as a condition of approval to address present or potential future non- compliance with applicable criteria. However, this problem can be avoided if a clear condition preventing off-site dust can be included. This has the added benefit of adding a County enforcement nexus, as the HOA may be unable or unwilling to enforce the requirements. As DEQ commented, "Basically it is common sense if visible emissions (fugitive dust) is observed, get water on it." Staff recommends this core goal be included in a condition of any approval as follows: Prior to Final Plat Approval for the Subdivision, the applicant shall cause to be recorded a binding agreement, running with the land, acceptable to the County, and imposing the following requirements on those lands described in County Resolution 2009-035 Exhibit A and as shown in County Resolution 2009-035 Exhibit B: On-site construction, demolition, excavation, extraction and other earthmoving activities involving residential development, subdivision infrastructure construction, and/or moving, depositing, or relocating of more than 10 cubic yards of bulk native soil or imported fill materials shall comply with the following provisions: a. The operator of any such project shall adhere to the requirements of the Lower Bridge Road Residential Development Dust Control Plan submitted as PH -7, 247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA Page 16 of 23 dated 2/19/16, including any future revisions reviewed and approved by Oregon Department of Environmental Quality. b. The property owner shall ensure that one or more water haul trucks with access to an adequate water supply for dust suppression is on site for the duration of any such project. c. The property owner shall ensure that visible dust emissions from areas disturbed by any such project at no time cross the outer boundary of the subdivision. This provision shall apply only to those projects commenced after January 1, 2016. This provision shall apply to areas disturbed by any such project in perpetuity. M20- Can the Board defer or delegate findings that the site is suitable for residential use?, Issue Summary: Based on review of the documents, it is unknown if significant contamination remains at the site. The Hearings Officer, Applicant, and Opponents have cited case law on the legality of deferring or delegating findings of compliance with applicable criteria. Can the Board find that yet -unidentified environmental hazards can be feasibly remediated under a yet- uncreated remediation plan and render the site suitable for residential development? Can the Board find that a requirement for DEQ/OHA "NFA" letters and Applicant completion of the VCP, prior to final plat approval, is sufficient to find that the site will be suitable for residential development at the time of final plat approval? Applicant: A requirement that an applicant obtain a permit or certification from a state agency having jurisdiction to decide the issue (sufficient water supply, for example) is not an improper deferral of compliance with a criterion. Contrary to the inappropriate discussion by the Hearings Officer, that decision did not improperly defer compliance with an applicable zone change criterion to a later date. In fact, that decision properly found the zone change criteria would be met upon completion of the VCP program through DEQ and equivalent process through DHS and imposed a condition of approval to ensure compliance. Hearings Officer: The Rhyne and Butte Conservancy decisions do not assist the applicant. The circumstances presented here are similar to those in Rhyne in which LUBA found the county's decision improperly deferred necessary findings to a stage in the proceedings for which notice and hearing were not required. I find the applicant's reliance on the Wetherell and Miller cases is misplaced because there is nothing in the PUD or subdivision approval criteria that requires either DEQ or EHAP approval or the issuance of DEQ or EHAP permits for residential development of the subject property. The Hearings Officer finds the approach in Butte Conservancy is not applicable where, as in the subject PUD application, the feasibility of demonstrating compliance with the "suitability" conditional use approval criterion does not depend on a legal interpretation. The Hearings Officer finds that under Rhyne, I do not have the option of deferring findings of compliance with the "suitability" conditional use approval criterion to final plat approval as suggested by the applicant. That is because final plat approval is not required to, and does not, provide public notice or hearing. Opponents: "When an issue is raised regarding the feasibility of conditions of approval to ensure compliance with approval criteria, the local government cannot simply ignore the issue. 247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA Page 17 of 23 Nor can the local government simply impose the disputed condition as a performance standard and rely on later staff review that does not provide notice and opportunity for hearing to ensure compliance with approval criteria." Butte Conservancy Order at page 11, citing Hodge Oregon Properties, LLC v. Lincoln City, 194 Or App 50, 55 — 56 (2004) The Butte Conservancy. City of Gresham, 52 Or LUBA 550 (2006) Order cites Rhyne v. Multnomah County, 23 Or LUBA 442, 447 (1992): "It is well established that a local government may find compliance with applicable criteria by either (1) finding that an applicable approval criterion is satisfied, or (2) finding that it is feasible to satisfy an applicable approval criterion and imposing conditions necessary to ensure that the criterion will be satisfied." Butte Conservancy Order at page 10. Similarly, in Rhyne v. Multnomah County, 23 OR LUBA 442 (1992), project opponents raised legitimate issues concerning the potential existence of hazards on the site subject to development review. Much like the present case, project opponents raised concerns regarding the existence of hazardous waste conditions on the property. The evidentiary record failed to contain substantial evidence sufficient to support County action approving the proposal based on conditions, with no provision for future notice and opportunity for hearing, and the County decision was remanded. Likewise, in Miller v. City of Joseph, 31 Or LUBA 472 (1996), LUBA concluded that the city came to conclusions that were not supported by factual findings regarding the feasibility of compliance with applicable conditions and requirements. LUBA concluded that until the city was provided with sufficient detail regarding the proposal, the city could not perform its evaluative function to determine whether it is feasible for the proposed project to operate in compliance with applicable review criteria. Miller at page 8. LUBA held that at a minimum, the city must establish that based on the evidentiary facts, compliance with applicable review criteria is feasible. While a local government is allowed to condition an approval on subsequent requirements to be met in the future, there is a point where the future compliance is too far according to Oregon law. Deschutes County has experienced this "point too far" conclusion in the Thornburgh conditional approval, referenced in case law as Gould v. Deschutes County, 216 Or. App. 150 (2007). As that conditional approval bounced back and forth between the County, LUBA, and the higher appellate courts, postponement of some determination by conditional approval was only allowed where it was "feasible" that the developer would comply with wildlife mitigation requirements at a later date. Staff Comment: The Board will need to determine if there is substantial evidence in the record sufficient to support County a finding that the site will be suitable for residential use, based on a condition that the applicant complete the VCP and receive DEQ/OHA "NFA" letters. Can the Board find that it is feasible to remediate the site, when the hazard identification is not complete? Can the board "delegate" this finding to the result of the VCP process? Staff and the Hearings Officer are concerned that this may be legally impermissible. M21 - Is the property a suitable location for residences. given hazardous material/radioactive material/ aroundwater contamination concerns? Issue Summary: Based on review of the documents, it is unknown if significant contamination remains at the site. Historic uses of the property have included activities that utilized and/or 247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA Page 18 of 23 disposed of hazardous or potentially hazardous wastes, and petroleum compounds that may have impacted the site. Investigations have been not been completed to fully evaluate all areas of potential concern. A diatomaceous earth mine and processing plant operated at the site between 1911 and 1963. The processing included crushing, drying, calcination, cooling, finish end milling, product collection, packing, and material handling. After diatomaceous earth mining operations ceased the site was used for surface gravel mining and operation of a hot asphalt plant. The site was also permitted as an industrial waste disposal facility in tlate 1975 to early 1976. Materials used/ stored/ disposed of at the site included: caustic sand with radioactive material; ink sludge; lead; chromium; oily wastes; petroleum products including gasoline, diesel, waste oil; asbestos containing material; PCBs, batteries; solid waste; and possibly copper wastes. The property owner has been engaged in redevelopment discussions with DEQ at the site since at least 2008 and an active participant in the DEQ's Voluntary Clean Up program since September 2014. As a part of the program, the owner has worked with DEQ's project manager and the Oregon Health Authority (OHA) to create an approved work plan and has been performing the items identified in the work plan and those specified in the rezone determination from 2011. On 10/9/15 DEQ stated of the investigation work plan, "Based on the plan and the progress thus far, DEQ sees no reason why the owner could not complete the work plan by the end of 2015." Applicant: The 2008 zone change decision conditioned final plat approval upon the submission of a No Further Action letter from DEQ and the equivalent letter from DHS confirming the site had been cleaned up to levels suitable and safe for residential use. That decision was not appealed and is final and binding. Contrary to the inappropriate discussion by the Hearings Officer, that decision did not improperly defer compliance with an applicable zone change criterion to a later date. In fact, that decision properly found the zone change criteria would be met upon completion of the VCP program through DEQ and equivalent process through DHS and imposed a condition of approval to ensure compliance. The Board further found there was sufficient evidence to show that it was feasible to comply with that condition and that the compliance with the condition involved at least three public processes (VCP program through DEQ, DHS equivalent program, tentative subdivision application with the County). The property owners and the Applicant have conducted water quality and water quantity testing, on-site soil testing, airborne/dust testing, subsurface soil and ground water testing. These tests have all failed to show any harmful or dangerous levels of materials. Working in coordination with DEQ and OHA the Applicant has identified additional measures, beyond what is required under the VCP, to improve the environmental investigation of the site and has indicated willingness to accept the following condition of approval. Prior to final plat approval, the applicant shall provide documentation from DEQ and OHA that the following activities have been completed: • Include comprehensive sampling of surface soil on both the east and west sides of Lower Bridge Road, using incremental sampling methodology. These samples will be analyzed for crystalline silica. 247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA Page 19 of 23 • Collect samples from the shallower aquifer during construction of sampling/monitoring wells. While these samples would be from open borings rather than from completed monitoring wells, they would provide information on water quality in the shallower aquifer. • Conduct a scoping level ecological risk assessment for the east side property. Opponents: The record fails to establish that all land proposed for planned development has been cleaned of hazardous waste to a level safe for human occupancy. The record fails to establish that adequate investigation and cleanup of hazardous waste occurred on the planned development property or the adjacent mine property and fails to establish that present day hazardous waste standards applicable in the context of residential use are satisfied. The application fails to incorporate information regarding the actual hazardous waste conditions on all land subject to this proposal. It is impossible to draw any well-founded conclusion regarding current hazardous waste conditions. As is the case with this entire application, Applicant seeks to impermissibly defer or avoid altogether the difficult and expensive work necessary to ensure that the site is ready for high- density residential occupancy. The Applicant has not produced evidence to establish that the site is safe for human occupancy. This is a fundamental determination that should be made at the preliminary plat approval stage as opposed to being approved through imposition of conditions. Hearings Officer: "I find this evidence is sufficient to support a finding that it is feasible to make the subject property suitable for the proposed PUD through imposition of a condition of approval requiring the applicant to complete its DEQ VCP and to obtain an "NFA" letter from the agency. The board's 2008 decision required only that the applicant obtain the "NFA" letter but said nothing about completing the VCP. Therefore, I find that if the proposed PUD is approved on appeal, it should be subject to a condition of approval expressly requiring the applicant to complete the VCP prior to submitting the final subdivision plat for approval." The Hearings Officer finds the Newton Consultants' memorandum provides sufficient evidence from which I can find the subject property is suitable for the proposed PUD considering water quality. Staff Comments: It is presently unknown if significant contamination remains at the site, either on the PUD property itself or on the west area, representing a hazard to the PUD. Based on DEQ's comments, the applicant could have completed (but has chosen not to complete) environmental testing that would have significantly clarified or resolved environmental hazard concerns. This puts the Board in a difficult position of needing to determine if the site can be made suitable for residential development when the extent of the hazard and feasibility of remediation of that hazard have not been documented. However, the Hearings Officer found there was sufficient evidence to support a finding that it is feasible to make the subject property suitable for the proposed PUD through imposition of a condition of approval requiring the applicant to complete its DEQ VCP and to obtain an "NFA" letter from the agency. Decision item M20, above, asks if the Board can legally defer or delegate findings that the site is suitable for residential use. One conclusion is that such findings cannot be made now, deferred, or delegated. Alternatively, the Board could conclude that that completion of the VCP will be 247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA Page 20 of 23 sufficient to demonstrate that the site is suitable for residential use and that the record demonstrates that completion of that program appears feasible at this point. Staff recommends that at minimum the Board, following the Hearings Officer's recommendation, include a condition of any approval requiring: Prior to final plat approval, the applicant shall demonstrate that it has completed VCP program to the satisfaction of DEQ and OHA. Staff also recommends the Board, with any approval, include the applicant's proposed conditions of approval, listed above. M22 - Is bonding appropriate or required? Issue Summary: Bonding can be used to ensure that activities required to ensure compliance with applicable criteria are performed, regardless of the applicant's ability or willingness to perform them. Bonding is typically used to ensure performance of required activities after final government approval. For example, final plats may be recorded prior to infrastructure construction using a bond. The first question here is what, if any, post -final -plat activities are required to ensure compliance with applicable criteria. The Hearings Officer identified that dust control measures on the entire former mine property should be bonded. Staff identified that bonding for remediation of contamination discovered during construction and after final plat approval should be considered. Opponents believe that the BOCC should impose very significant financial assurance requirements in order to ensure that the Applicant or Applicant's successors in interest remain financially responsible for carrying out any required environmental investigation and remediation work. The second question is the amount of the bonding. In order to use a bond the bond must be in an amount that credibly covers the cost of the required activities. No party has submitted a plan that includes sufficient cost detail to impose a bond against. Applicant: Staff was unable to locate briefing on this issue. Hearings Officer: "I find that if the proposed PUD is approved on appeal, it should be subject to a condition of approval requiring the applicant to provide cash or a performance bond in favor of Deschutes County, and acceptable to Deschutes County Legal Counsel, for the cost of remediating DE dust on SM Site 461 and the subject property, in an amount to be identified by the applicant and approved by the board, prior to any grading or construction on the subject property." Opponents: The remediation performance risks are too great to allow the proposed development to move forward. However, in the event the BOCC overturns the HO Decision it should impose very significant financial assurance requirements in order to ensure that the Applicant or Applicant's successors in interest remain financially responsible for carrying out any required environmental investigation and remediation work. Staff: Since no plan for any activity has been submitted that include cost data, it is not possible to impose bonding requirements at this time. In order to approve this application, the Board will 247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA Page 21 of 23 need to determine that the proposal meets all applicable criteria without the benefit of bonding to ensure performance of post -final plat activities. Staff notes that conditions of approval, without bonding, may be adequate to address post -final plat approval concerns. M23 — Consistency with Oregon State Scenic Waterway Act / Federal Wild and Scenic Rivers Act. Issue Summary: Development along this segment of the Deschutes River is subject to the Oregon State Scenic Waterway Act / Federal Wild and Scenic Rivers Act. Opponents have argued that compliance with the visual impact provisions of these laws needs to be demonstrated at this point in the application. Applicant: The Applicant has obtained approval for the planned development subdivision from Oregon Parks and Recreation. The approval is for the subdivision infrastructure work necessary to reach final plat approval and not for the residential structures for the individual Tots. Both the Applicant and State Parks understand the future structures will need to be permitted through State Parks at the time they are proposed. Hearings Officer: The Hearings Officer found that there is nothing in OPRD's correspondence that indicates approval of the proposed PUD would result in a change in the current classification of the stretch of the Deschutes River adjacent to the subject property. Nor do his letters suggest dwellings on individual PUD lots could not receive scenic waterway approval from OPRD. To the contrary, the approval standards for new structures in the Middle Deschutes River Scenic Waterway, set forth in OAR 736-040-0072 attached to Mr. Cianella's May 21, 2015 e-mail message, are similar to those imposed through the county's LM site plan review. Opponents: The Applicant states that it has obtained "approval" for the planned development subdivision from the Oregon Parks and Recreation Department ("OPRD"), but then clarifies that the "approval" is only for underground utility and infrastructure work, not for residential structures on individual lots. The Applicant acknowledges that future structures will need to be permitted through the state in the future. This will impermissibly piecemeal the development analysis and approval process by OPRD. Applicant has an obligation to obtain a comprehensive analysis from OPRD as to the impacts that the built -out development would have on scenic and natural values. It instead did the bare minimum, which in this instance is legally insufficient. Staff Comment: The Opponents' argument is primarily with OPRD's implementation of the Oregon State Scenic Waterway Act. Staff believes there is no applicable criterion under County Code that requires or allows the Board to second-guess OPRD's administration of this Act. The County implementation of protection of the Deschutes River as a visual corridor is focused on a per -structure analysis under the Landscape Management (LM) Combining Zone provisions. Since these requirements focus on vegetative screening, building height, and building colors, staff believes that it is feasible for the proposed lots to be developed with dwelling that would be evaluated, per -dwelling, for LM compliance prior to issuance of building permits. Attachments 247 -15 -000194 -CU, 195 -TP, 521-A, 689 -MA Page 22 of 23 1. 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N 0 0 N 1. 0 .0 G 60.N Last -ar"o ;o -O D oti cy Board Options Staff Comment Information in Record N R O m N L 8 O O •N N N •6 '0 .0 ° Q CO N d w C = " 0) • 030 o � V) cc =N8 NC>.d 0).- d•N0.O c O.0 12>'N.00 < C E X m a U o u1 0) rt 'd0 •0 C N 0 7 O m 0 N d N m d U icdL Q O. d O-•0 C 0) N C d .0 Q d O C O •D i L•. . U L as d Q O` N N d O C a > N C O yd-. .O N@ i 0 0. 0 0- 0 c mwo a E E:5 a_) 0 3 a R E �v NC 0 d N- O co O 00 Eo> Cm C 3 C Qa) 0 N N34= Q• 81 Q •Coo .cRam Q d C S .. O C d 0 O N .0 d `L L 0- 0 0 -d - E O.Kd mO U'0 >'6 N mEU.. Od O V 0 d N d d 2 C d'oO. .C)d0_c ORa QU madCm) V d U 0 m U.,.0 U O O L 0 C d.m O C a co O Z N Q N o>CC N c i° Li, E c'6 C U= C 0-0M o d d Na (7, E 'a O) d E U c E E d E C.L.. - a) 0 co d E o ` o m c d E Ut�> dE 00.-3.0 =u 0 2 O == w = ac) 2 a R LL d E (q O o . cq iq .0 m HO: Did not directly address issue. <o Opponents: Did not brief on this issue. 0 0 N 0 C V a2 CL R co C.) 0 R N 13- 0 00 0 y m •0 . 0 .0 m o) 0 C E R O0 o ra)c C N m d E O w C c O m E O' E c c d E O. a3o COco RN a N d C d Q CO ? U o • 0 o U la •�- C O. N a E c O (A 0) ,_ •0 0 0 v N x C N m 0 co C d L c O O 0 •0 d o 0 OQ U m CO C-0 Z•- a) d N tC c '0 Q L t 0 7 • a N CO 0 R w C 0 ":�pCC .0 7C� N O d •E- E 0 " "0 .L... d o - Qo m e 0 X01° -Q a>c�rn m EQ O` C N OL O Ta "- ... Opponents: Staff was unable to locate briefing on this issue. d0 dL� .O +-• m o v0i0 �ai�a)> 0 •C O 0 - N . a-. C 7 y O Co)•U .c a o - . > 5 O 0 0 0• C E d c O OQ U Y d CL R LL N 0.'006 0 m 8 OL aLm-. (o 0~ d N d..+ m N L.. 0 a' O. d N a) m 0-0c=5, d C E c 0 0-L ma o .JC 2 3 >. N- N )K U O ._ O C C C CO m .• CL m0-0 min E. CO U C m o .� >C 0` o 0d.. 70 c 3 2 0)QU m 0 m.0 t6 Qc Qd C- � m mw do .Q:m... 0)CZa 00- aci C C 0 7 � N N • C .O c m C.3 d> •0 C 7 .L_. 0 CI).L y c Q 2 7 0 U L co O N O w N CL . CO co_0C •c N L a) • d 0 O a) 7 •a m'QC j N co U c m. O_U O C dma2 -m_m cd. pQ QN 0dc wC>N,c oa)m mom; oc m o>d }- E: � 7 CO _000= C CI) U 0 -O o m 0) :. 0) - E o 0-)L N m o EL'>; o-� 2 mm O 7 c L d T Q= L..•• �"� 7.).00.0000 o. N 0 '� o aE m OL'` a) m Nc00.L`O_I-o3. HO: Did not directly address issue. 0 L_ U 0 0. 0. .0 m N CIS N.''• d y c 2 O N U 0 c d C .0 N •C y U Q E: O O Q - d co w C o CO d d U_ I= O 'd 8 .C8 R d d an am <'5 N . N 0 O t w d RC E > • � R ). C10. R d R 0 .0 • w N dr. 'a a d w L O N to o 0 .. a m0 C U .0 o O d ..�c3 d.0 CO > _ 4 d 2 O 3 3 r. e V c o O c m R. C o w O R d O N w C O C 'a E d d 0 0.C 1a CL 0 V) R C E N Opponents: Staff was unable to locate briefing on this issue. M Board Options Staff Comment .N O ... OO e 0 CQ 0 colD .. O 0 ) w) 00 0 EOL 0 c 0 CO C C 00 U EU 01 03 0. aN a.N m N3 Et . !/Npa 0� G> o L U O'� N 0O m m > J CO Ta. 73 =erna 0OoPM c2 0 • a)amE Uacm4=cv0 ac o °)�ovc O30 D.y L cc = )E O m °E oc,a S ui S N' > O fO U r m=aC Ln C cja 0 mN 0 a °-_..1 cr.- n K'>c>'n0.0 a> N. md'o iN >0mQ E � oCLomit c tw m a)w Oa 2.0 0 Na ma y C c .c N 0 N - CO 0 O EB m 0. 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N Ua 0 '3 "0 U a) C 0_ c Eam a) Cw0.$a E N > .)C 0m o n Q c N o .0 0 _ N C n S U 0.O QY Cj0 l~ U a) .c C C 0 N < c o 3 0 O 0 7 7 ~ 4- ?. 0 C Naw O N = 10 m Y C O C N- .L U _ C a iE •, O m U c acc000 C ?, = m Q o C p -pc a s .0 H> O. 0CL 0 N N 0 = U U < N N .2 = 0 L a 0 N N.0 0 O .H. Q' L > c y0 O •=4)W d a y m « E :' aai 0 C 0. N U 2 0 O. C 3 0 N 0 C N 0 3 0> ;amaNU> 0) 0 y L 0 0 0 2 N p) C c •-C 7wa 0 Nf0 4-- a 4 N mNo mo O U U N N n CD 0 C` 7 N 01 m J d` .co - ;- a)6" ?+;ac> o cUa)0T O >CD 0 a w,5=c ui 0 c a c 0.7, .2 -o c a) d 2- 20.-S 0 c N > a Cn N 0 m 0 N a 0 > 0 m a) O W EO 0 N L 3 .0 L N c Vl 0 N 2 v Ea�Ei3�°'x� U N o 2 tC .2 13) > a 2'1-m c 2 o 0)udi-2 Applicant: Staff was unable to locate briefing on this issue. 0 J 0 C lea .1. w m J O O m > mos O 0 a L w 0 d 0 "' L aC C cts o 2 R 03 2 0 O e0 T.. 0 oc O 0 i 0- 0 a- 0 Cr O a0 a 0 01 N a s Ue oa'l~ O p M 6 .. I 0 o0. Ooh+ o 0. RI Eiao> o. > E a. a 0 m 0.c (n Q 3 r 0 0 w m LO N y L m tat, a a C C C 0 r `- Q m 0 ... U m do o 0 >13 0 0 w iH0p .L.a-mE o. o O > J'Oo _ �0 +'mt U0 2 N (3 .mL.. m O od O coQ.J E 3 -0- -a E C w L cL E m 0w- m.c 0 0 N > C a) W. 0 (5R= E" 3a a)0.Ec Q m U U m >4 C c (cp CO CD OE 0)= N CO C 3 = EC Fmoa m >N0 OE mac m0 E n n m 0 E =o m N c a) 0 w0 O O N�yL„0 E 0 'N 112 0o`c -oa N n- o o•o N C' O m 0 `) N o 0 .c O N m=0.w ....c_ N • N m wU .0 (5 ma) U w rs CD m 0 (A '0 G. r w O T a)EN s .n0 0 O �a 0.U -c 0 7 0 ..- 0 0 c N c O N 0 0 t !- .0 U E •' • I- a) 0 �O ; m Ee i.+ •N c N as c 0 0.c m E.c O - o E 0 0 0 0 E rn a) o n E> o > N o o no y m'Smn Eo.a l«4a)cc0_ mo.c (n V a) 4= m (n m 3 Applicant: Provided draft language to comply with this criterion. Hearings Officer: Did not directly address this issue. 0 0• v tn.av E(> 0 r O t ._+ 90 > N 00 c._ 0 0 m .c T 0 O 0000 d= @ c ti i @ 0 apL+ co o. o m U os rG L E •OG •A 'ONN a N at t 4 N L S y arso w ttoa N ca'N ¢ N r a 0.. @ .. :9...s.,., -q. o. 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CI (n a) O >,«"•a 001 y d c1mQ;_-> :13 re2,12.321 0R: t�Oau� May 4, 2016 Mike McArthur Executive Director Association of Oregon Counties 1201 Court Street, NE, Suite 300 Salem, OR 97301 Dear Mike: Board of County Commissioners PO Box 6005, Bend, OR 97708-6005 1300 NW Wall Street, Suite 206, Bend, OR 97701-1960 TEL (541) 388-6570 • FAX (541) 385-3202 www.deschutes.ora, board@co.deschutes.or.us Alan Unger Tammy Baney Anthony DeBone The Deschutes County Board of Commissioners is concerned about the rate at which AOC dues have increased over the past five years and about the sustainability of using "voluntary dues" to fund advocacy efforts for specific issues. In fact, Deschutes County's dues have risen 21% from the amount paid in 2011 compared to that assessed for 2016. As a result, we have decided to pay AOC a total of $45,000 for 2016 with the understanding that AOC can determine how best to apply these funds. In addition to paying dues to AOC, Deschutes County actively supports several issues of regional and statewide significance. The County provides in-kind staff to Eastern Oregon counties for work associated with sage -grouse habitat protection, is leading efforts to implement the National Cohesive Wildland Fire Management Strategy, and engages in general wildfire prevention efforts through the Deschutes County Forester position and Project Wildfire. Thank you for visiting with us a few weeks ago and discussing AOC dues during our work session. Sincerely, DESCHUTES COUNTY BOARD OF COMMISSIONERS Alan Unger, Chair Tammy Baney, Vice Chair Anthony DeBone, Commissioner Planning Commission Transmittal Memorandum MEETING DATE: April 25, 2016 STANH MEMBER: Nick Arnis, Growth Management Department Director SUBJECT: Central Westside Plan PROPOSAL/ISSUE: Recommendation to Council to accept Phase 1 Report of the Central Westside Plan and initiate scoping for Phase 2. LOCATION: The Central Westside land use planning area is roughly bordered by Portland Avenue to the north, the Deschutes River to the east and south, Colorado Avenue to the southwest, and Mt. Washington Avenue to the west. A slightly larger area was considered as part of the transportation analysis of the potential effects of the proposed land use changes. Please see attached map. BACKGROUND: The Central Westside Plan (CWP) was created in response to persistent and on-going development and transportation issues. The objective of the CWP was to create a land use and transportation vision for Bend's central Westside that addressed transportation performance measures. The CWP was developed through active engagement with a community advisory committee, the general public, and key stakeholders. These groups reviewed technical material and provided input that informed the ultimate recommendations. The 22 -member advisory committee for this effort consisted of a broad range of stakeholders. The committee met 9 times from January 2015 — April 2016. This group reviewed technical information, developed land use plans, and provided input on all project material. Three public outreach events were held at different project milestones, reaching more than 200 community members in- person and over 1,300 online. DISCUSSION: The CWP directly acknowledges the link between land use and transportation system planning by emphasizing a mixed-use development type in the most under -developed portions of the study area. A mixed-use development type results in fewer and shorter motor vehicle trips and increases the use of other modes, among other positive benefits such as reducing household transportation costs andgreenhouse gas production. Specific project results to achieve this objective include: • Preferred Land Use Plan — This is a community generated plan that identifies recommended land use changes within the study area. • Transportation Performance Measures —The measures considers the broad function of the transportation system to connect a community and provide travel options for all users. ■ Recommended Transportation Projects and Policies — The Preferred Land Use Plan was evaluated based on the identified transportation performance measures. The outcome of that analysis was a list of recommended transportation projects and policies to support the Preferred Land Use Plan. STAFF RECOMMENDATION: While the community vision developed by this plan is comprehensive, it is only Phase 1 of the project. The following are, but not limited to, key next steps needed to advance the CWP in Phase 2: • Develop transportation overlay district or area. This will create a process to build the transportation improvements through future development, create cost estimates and prioritize projects. Develop policy and code. Consider detailed code language to address compatibility with existing residential neighborhoods and future mixed use, implementation of the transportation overlay district, and other issues. • Implement the land use plan changes for the Newport Ave. and 14th St. areas. This would result in mixed use and higher density residential in a limited area along Newport, as well as increased residential density along 14th St. • Conduct studies for Columbia Street/Harmon Blvd., and Portland, Simpson, and Chandler avenues for instance. These studies would determine the appropriate streetscape and intersection treatments for these corridors. ■ Ongoing community dialog. The community will continue to be actively involved in Phase 2. In order to move to Phase 2, the City Council will need to formally accept the results of Phase 1, and will be looking for a recommendation from the Planning Commission to do so. Staff. recornmends that the Planning Commission make the following motion: 1. Forward the Central Westside Plan to the Bend City Council with a recommendation to accept the document. 2. Recommend to the Bend City Council that staff proceed with preparing a Scope of Work for Phase 2 of the Central Westside Plan. City of Bend Central Westside Plan N I y 1 0.25 i 0.5 Mile,.., 4- -64-- 7- -;" - "to April 2016 SW SIMPSON Pg. Study Area , i ! Figure I Bend, OR ' '1 1 CootrSaate System NAP 1983 $MMPAng Otegoil South PPS 3602 Feet Intl Data Scotus City of Bend, Deschutes Comb, :���_ 76,ti b yN m" Central Westside Plar-, 111 May 2016 Medium Density Residential (RM) High Density Residential (RH) Main Street Mixed -Use (Urban or Neighborhood) University Owned Property ••Riveriront Compatibility •••Neighborhood Compatibility UGB OpportunityArea Boundary CWP Study Area BlY01 &ND TRA L WESTSIDE PLAN Preferred Land Use Scenario Bend, Oregon Figure 3 2016 Employee Recognition Breakfast Proposal Proposed Date: Saturday, August 6th Time: 9 -10:30 a.m. Place: Deschutes County Fair & Expo Center Buckaroo Breakfast Area Menu: Sausage Links, Pit Ham (carved at the end of the line), scrambled eggs, Obrien breakfast potatoes, baking powder biscuits and gravy, fresh cut fruit bowls, orange juice, coffee, tea and ice water. Price: $12.50 per person. Logistics: • Last year, we had 336 adults and 142 children attend. Based on that attendance, cost this year would be $5,975. • Prior to the breakfast, employees will receive two tickets to the Fair concerts • At the breakfast, they'll receive free Saturday admission to the fair, two tickets to the Saturday night concert and one free carnival ride per person. April 11, 2016 Tom Anderson County Administrator Deschutes County PO Box 6005 Bend, OR 97708 Dear Tom: CITY OF REDMOND Public Works Department 243 E. Antler Avenue, Suite 100 Redmond, OR 97756 (541) 504-2000 Fax: (541) 548-0253 info@ci.redmond.or.us www.ci.redmond.or.us The City of Redmond is requesting donation of a 1.17 piece of property Deschutes County took ownership of in 2016 through tax foreclosure. The property borders the Dry Canyon, considered Redmond's "Central Park." Over the decades the City and the community have been vigilant to protect this natural scenic area from private development. In 1978, the land was zoned Open Space. That action reflected the priority to keep this meandering north/south corridor from undue private development. As part of these preservation efforts the City works to procure nearby lands in and around the canyon as opportunities arise. In this case, the property being requested is north of Maple Avenue along the eastern edge of the canyon wall. A map and full property description is attached. The property, some of which is located below the canyon rim, is undevelopable and serves no current or future value to the County. The donation of the property would help advance our goal to acquire private holdings within the Dry Canyon and eventually have the length of the canyon be a continuous City -owned park. Thank you for considering this request. Please let me know what further information you might need and next steps in the process. With warm regards, Keith Witcosky City Manager cc: James Lewis, Deschutes County Annie McVey, City of Redmond Dry Canyon Property Photos Property closest to Maple Avenue, note fence line. Overview of parcels along the canyon rim. U O F___4 N w (D.< 00Y0 £1 51 01 33S tO tt— uu''nn errrrrrrr �r� irriii. U 00101 CC )15 HAP mr-rrrrr7 i SVAVY AM 5� .77- i-rnrr7rrr.}} f3)) -)M }j)-)-)-))33)}Y)34"--N-) • • W M •c >- N N O -v W O . W N N QW .a} W " Li° WO . 09 t. 6x191 1 00661 r ,r9, - a WWI ( w'ool r 60661 r 00..1 f (9001 r m-om r OD'66 9 9i \\ e m N rn a o 0 0{• CANYON RIY��`�. ...5,'OL y �e 'tel .�. w.w .x u. uw..aw ww.....wx.w................ � 15 M111 �o �;n 1 /,..„„„„,,.---,,,y,,,,-:..:,....y....,. YO Cl 51 dYH 335 >)4-) 16,1 ,OV 'rrn .. �r:i3io` isi! 1) SisitN11�'✓isdri,ia�alx�i.\r'x�aos,i✓i✓ra.�i; OO40 LI 51 Mt 335 90 £I SI dOlO 335 151304C D00099 Redmond - Dry Canyon Rim akin Hathaway Park Hathaway Park