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2017-376-Minutes for Meeting April 26,2017 Recorded 7/14/2017
Recorded in Deschutes County Commissioners' Journal 07/14/2017 4:19:05 PM CJ2017-376 Nancy Blankenship, County Clerk For Recording Stamp Only Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS Allen Conference Room WEDNESDAY, APRIL 26, 2017 Present were Commissioners Anthony DeBone and Phil Henderson. Commissioner Baney was absent. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County Counsel; and Sharon Ross, Board Executive Secretary. Attending for a portion of the meeting were Whitney Hale, Public Information Officer; Nick Lelack, Peter Russell, Peter Gutowsky, and Matt Martin, Community Development Department and Chris Doty, Director of Public Works. No representatives of the media were in attendance. CALL TO ORDER: Vice -Chair DeBone opened the meeting at 1:30 p.m. ACTION ITEMS 1. Historic Landmarks Commission Vacancy/Recruitment Matt Martin, Associate Planner reported the month of May is National Historic Preservation month and noted a series of events that are planned. Mr. Martin serves as the staff liaison on the Historic Landmarks Commission and is requesting the Board's direction on the desired process for filling a current vacant voting membership. Discussion held on the two ex -officio members, Kelly Madden and Rachel Stemach, and both are recommended for consideration of appointment. HENDERSON: Move appoint of Rachel Stemach DEBONE: Second Minutes of Board of Commissioners' Work Session April 26, 2017 Page 1 of 4 VOTE: HENDERSON: Yes BANEY: Absent DEBONE: Chair votes yes. Motion Carried 2. LUBA Remand of Goal 11 Exception for South Deschutes County: Peter Gutowsky and Nick Lelack, Community Development Department along with Eric Nigg, Oregon Department of Environmental Quality and Jon Jinings of Department of Land Conservation and Development were present to update the Board on the LUBA remand of the Goal 11 Exception for South Deschutes County. LUBA issued a remand on November 1, 2016 regarding the Board's approval of a Goal 11 Exception for southern Deschutes County. LUBA has a 180 -day deadline of May 15t to hold the remand hearing. Staff asks for Board direction and reviewed process options. Under LUBAs process, the local jurisdiction must either hold a remand hearing within 180 days of the decision or request an additional extension. If the local jurisdiction does neither, then the LUBA decision stands. The 180th day time period in the Goal 11 remand is April 30, 2017. Staff noted the actual date to decide to either hold a hearing or to request an extension would be Monday, May 1st. The underlying purpose of the Goal 11 was to protect public health. Both DEQ and DLCD are still in support with Deschutes County. Commissioner DeBone inquired on the USGS study estimates. Discussion held on the expectation of the growing contamination problem. There are some wells that have been above the maximum contaminant level of nitrates causing health hazards. Commissioner DeBone asked if there is awareness of the health hazards within the real estate world. Discussion held on possible system options and costs associated. Residents are anxious for a solution and options for financing. One benefit of forming special districts would allow for more funding options. The best systems need to be found to reduce nitrates and prevent contaminated drinking water and prevent environmental issues. Finding closure for the community and protecting ground water is extremely important. Commissioner DeBone stresses the importance of addressing this before there is a crisis. LUBA did not recognize the imminent health hazard term as a powerful enough statement. Counsel Doyle noted that a written request to initiate the remand must be made by May 22nd otherwise the remand will lapse. Once the remand proceeding is initiated, the County will have 120 days in which to make a final decision. Commissioner DeBone pointed out Deschutes County is both the hearings body and the co -applicant. Deschutes County, DEQ, and DLCD were co -applicants of the Goal 11 Minutes of Board of Commissioners' Work Session April 26, 2017 Page 2 of 4 Exception. The Board reviewed the history of the formation of the steering committee and their recommendation. Commissioner DeBone commented he is not ready to make a decision and requested further review. Commissioner Henderson requested to review the report from the steering committee. Mr. Lelack will also submit copies of the USGS study. This discussion will be continued on Wednesday, May 3rd OTHER ITEMS 3. Update from Salem Legislative Session Nick Lelack, Community Development Department Director gave an update on legislative session discussions relating to marijuana yesterday. Mr. Lelack commented on conversations regarding regulations with the industry and with the committee members. Discussion held on the marijuana advisory committee and the work they did to provide recommendations. Discussion held on the legislative session and our current lobbyist and the level of support that is not being provided. This is the first year with this lobbyist and at this point we are in need of a midsession assessment of the service. Discussion held on the possibility of an opt -out at this point. Commissioner Henderson expressed his concerns about Oregon acting outside of federal law and what ramifications there could be. Commissioner DeBone noted the growers asked to be treated as members of the business community. Mr. Lelack noted the Dash 11 are not currently on the table and there is no intention of appeal and they are going to explore a budget note option. Commissioner Henderson reviewed the work of the advisory committee and how this has turned 360 degrees. Mr. Lelack presented a flow chart sheet of three options for applications. There are currently over a dozen marijuana production and processing applications. Peter Gutowsky reviewed the process for applications. Questions presented to the Board were: should CDD require hearings officer deposits for marijuana production and processing applications when there's opposition, when there's major opposition, should the application be directly sent to a hearings officer, or if not is the Board willing to hear all appeals of administrative decisions? Regulations were drafted to make them as objective as possible but still have the public input. With an administrative decision there needs to be a local appeals process. Commissioners discussed the options including hearings officer deposits and when that deposit is received. In the fee schedule it is collected up front with the application. The average cost of a hearings officer is between $4,000 and $5,000. Commissioner Henderson supports the $5,000 deposit for a hearings officer fee. Commissioner DeBone feels none of the applications should go to the hearings officer. Minutes of Board of Commissioners' Work Session April 26, 2017 Page 3 of 4 EXECUTIVE SESSION: At 3:39 p.m. the Board went into Executive Session under Litigation. The Board came out of Executive Session at 3:56 p.m. OTHER ITEMS continued: 4. Nuisance Abatement — Sinkhole in Bill Martin Road: The Road department performed repairs to an emergency hazard on Bill Martin Road and are required by statute to provide a report to the Board of Commissioners and provide a public hearing to the Board. The public hearing has been set for the May 3, 2017 Business meeting. The report was presented to the Board at this work session. The total cost of the repairs was $21,617.71. Representatives from Tumalo Irrigation District will speak to the issue and the Board will deliberate on whether to impose the cost on TID. ADJOURN: Being no further discussion, the meeting adjourned at 4:10 p.m. DATED this Board of Commissioners. Recording Secretary Day of . J 2017 for the Deschutes County dbkvv. Tammy Baney, Chair l Anthony DeBone, Vice Chair Philip G. Hend0son, Commissioner Minutes of Board of Commissioners' Work Session April 26, 2017 Page 4 of 4 a c Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:30 PM, WEDNESDAY, APRIL 26, 2017 Allen Conference Room - Deschutes Services Building, 2ND Floor —1300 NW Wall Street — Bend 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. CALL TO ORDER ACTION ITEMS 1. Historic Landmarks Commission Vacancy/Recruitment - Matt Martin, Associate Planner 2. LUBA Remand of Goal 11 Exception for South Deschutes County - Peter Russell, Senior Planner OTHER ITEMS 3. EXECUTIVE SESSION: under ORS 192.660 (2) (h) Litigation 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. Board of Commissioners Work Session Agenda Wednesday, April 26, 2017 Page 1 of 2 ADJOURN ®® 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. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.orq/meetinccalendar (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572.) Board of Commissioners Work Session Agenda Wednesday, April 26, 2017 Page 2 of 2 TES -< Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of April 26, 2017 DATE: April 19, 2017 FROM: Matt Martin, Community Development, 541-330-4620 TITLE OF AGENDA ITEM: Historic Landmarks Commission Vacancy/Recruitment PUBLIC HEARING ON THIS DATE?: No ATTENDANCE: Matthew Martin SUMMARY: The resignation of Broc Stenman from the Deschutes County Historic Landmarks Commission creates the need to fill the position on the commission for the remainder of the term. The purpose of this work session is to discuss the vacancy and request Board direction on the method of recruitment. Community Development Department Planning Division Budding Safety Division Environmental Soils Division P 0 Bo:K 60,'5 117 °1W Lafayette. Avenue Send, Oregon 97708-t3005 (541)388-6575 FAX (541)385-1/64 http:f/www.co.deschutps.or.u,,/cdd/ MEMORANDUM TO: Board of County Commissioners FROM: Matthew Martin, AICP, Associate Planner DATE: April 11, 2017 RE: Historic Landmarks Commission Vacancy/Recruitment PURPOSE The purpose of this memorandum is to provide an overview of the options available to the Board of County Commissioners (Board) to fill a vacancy on the Deschutes County Historic Landmarks Commission (HLC). At the work session on April 17, staff will seek direction on a method of recruitment. BACKGROUND On February 14, 2017, Commissioner Broc Stenman submitted his resignation effective March 15, 2017. This resignation creates the need to fill the voting position on the HLC for the remainder of the term ending March 31, 2020. The HLC consists of five voting and an undetermined number of ex -officio (non-voting) members. The voting members must reside within the county and shall, to the extent possible, be representative of the various geographic areas.' Mr. Stenman lived in the Bend region. To the extent they are available, some of the commission members should meet professional qualifications in the disciplines of history, architecture, architectural history, archaeology, or related fields. Landmarks Commissioners serve four- year terms. Any vacancy occurring in a position for any reason other than expiration of a term shall be filled by appointment for the remainder of the term. OPTIONS Staff has identified the follow options for the Board to consider filling the HLC vacancy: 1. Appoint Ex-Offico Member Currently the HLC has two Ex-Offico members, Rachael Stemach and Kelly Madden. Staff has contacted both Ms. Stemach and Ms. Madden and each expressed interest in filling the voting DCC 2.28.040. Administration. The Historic Landmarks Commission also recognizes one member appointed by the City of Sisters and one recommended by the Deschutes County Pioneer Association. Commissioners Dennis Schmidling and Bill Olson represent these two positions. Quality Orth 1' member position. Both members are in good standing with the HLC through reliable meeting attendance and contributions, including involvement with other preservation activities. Staff has high regard for both and supports the appointment of either. Attached are the bios (cover letter, application, and resume) provided by Ms. Stemach and Madden prior to their appointments as ex-offico members. 2. Open Recruitment County staff will issue a media release, post information on the County's website, utilize social media, and make direct contact inviting applications to fill the vacancy on the HLC. Following the application deadline, staff will return to the Board to schedule interviews. 3. Other The Board can direct staff to utilize an alternative method not identified to fill the vacancy. Attachments: Ex-offico bios 2 Nick Lelak Deschutes County Community Development Department Planning Director 117 NW Lafayette Avenue Bend, Oregon 97701 February 8, 2012 A.Kelly Madden Bend, Oregon 97701 RECEIVED FEB 0 7 2012 Deschutes County COD Dear Nick Lelak and County Commissoners, Tammy Baney, Ron Unger, and Tony Boone: On December 26, 2010, I suffered a spontaneous carotid artery dissection. Because of the nature of this injury, I was forced to take leave from my teaching job of 26 years and sit quietly until I repaired. In the subsequent 12 months, as I recovered, I spent hours upon hours upon hours reflecting, pondering and focusing on the things and relationships that are most important to me. As my father-in-law, Dr. Joe Treleaven says: "There's nothing like a near death experience to get your priorities straight." My health and priorities are after a year, finally and completely in order. To that end I would like to apply to be one of the three new volunteer Historic Landmark Commission members for Deschutes County. This rekindled passion for history and historic places is not just a passing fancy. My interest in historic preservation goes back a long way. When I was in graduate school, I became concerned at the rate my University was tearing down old structures to build new ones. The founder of the University's home was tom down and no one seemed too bothered. When the home came down, I decided I needed to do something. In conjunction with my professors, I embarked on a semester long combined course of Material Folk Culture and Preservation AND writing. During that semester and with the guidance of my committee and The Missouri Cultural Heritage Center; I helped the University preserve another structure, The Conley House, which now houses the Honors College. But, sadly, as I pursued my teaching career, this passion simmered on the back stove of my imagination until now. I understand the role of a landmarks commissioner. I know it is the commissioner's job to make the right decision about structures. Does the building or place have architectural merit? Does it have viable history to keep it alive? Should the owners be allowed to make changes? How can the changes be done and still keep the historical integrity of the structure? I feel I have good qualifications for this position. Firstly, I have passion about history and historic places. Secondly, I have traveled and explored not only all over this county, but all over the state. I know Central Oregon and Oregon in general VERY well. Thirdly, I am good at observation and details. I am an organized person and am able to see things that sometimes others might miss. I am a good reader, of both books and places. Finally, I am a great team player. One can't be successful as a middle school teacher without being able to cooperate and work with others. These same skills serve me on any committee or any group I work with. I get along well with all kinds of people and am usually able to communicate effectively with them. I hope you consider me for this position. I look forward to hearing from you. If you have questions, please feel free to contact me. Sincerely, A.Kelly Madden 1. Position applied for: 2. Name: DESCHUTES COUNTY HISTORICAL LANDMARKS Commissioner Application IUnincorporated County Sisters Pioneer Association fl'1 (Th nith J Address: d2qv» g73z9 / v 3. Phone: Email: Cell: - ax: h�l� 4. Special skills, interests, hobbies that you believe would bring special value to your ability to serve on this Commission: geed e'DbSev✓rfi61._T ant ah/c reird lotpa,..I ue. (? L Y114 n y, vv1 A `t L! boo k$ d/bavr f 7 ie twee . / h ra 4 el S, W sots, . 1.'vr_ "Cat t/*//eral eX7`G ii,vdu lir ✓ t ' I/1 h 4/vi4/ a Isi wet/ v. ,v_ ed / j'! The 478-7krt-1. J;fv . 't4 kOd--/ Cf✓i U (ki l fr,t t'e G1dt ss ,1 ,v di -t i Se-Gi dr7e. 7714:44* it-diger%] 4 vt`�Va hits 4 •eesi GL Lr C 409 C/vie Cr75 5. Current occupation and duties: v>✓ erywo 14 4 Ves c -Mgold/G- cry 4 ave . veavi t,',c41t»4 ex ve,bei,e44C . (Pve / y.vVl oneer€d oyi ce,, as Tive 4 v. iti 6f t 75�-rli✓ 6. Other volunteer, committee, board and/or commission experience: From: a y • 20/1 (Month/Year)Organization Name: �C1 btks //� f,� j k eett mo '%,,) To: n . 2a/2 (Month/Year)Address: old ea school , Type of organization: Role: V, /UP1tCCY Activities/Achievements: vtvl /2-/9-1o) run -&i./ clerk VY av-Gr avr.l Inca/Da7 av, If you are still serving in this capacity, do you foresee any conflicts between this Commission and the position you currently hold? Yes No Deschutes County Historic Landmarks Commissioner Application Page 1 of 14 From: To: Type of organization: Role: Activities/Achievements: ���C� -1 -e• 4e4,'ire ii'1 (Month/Year)Organization Name: (Month/Year)Address: k).€.c-2ioit If you are still serving in this capacity, do you foresee any conflicts between this Commission and the position you currently hold? Yes No From: (Month/Year) Organization Name: To: (Month/Year) Address: Type of organization: Role: Activities/Achievements: l&trrt/f,rkett_.> If you are still serving in this capacity, do you foresee any conflicts between this Commission and the position you currently hold? Yes No From: (Month/Year) Organization Name: To: (Month/Year) Address: Type of organization: Role: l 044C.€ "� If you are still serving in this capacity, do you foresee any conflicts between this Commission and the position you currently, hold? Yes No (Please attach additional pages if you have additional information regarding your organizational involvement.) 7. Please be prepared to answer the following questions if you are Interviewed: a. Describe your knowledge of and experience using the Secretary of the Interior's Standards and Guidelines for Rehabilitation, if any. b. Describe your experience with local historical preservation codes. c. Describe your knowledge of and experience restoring or rehabilitating historic structures. d. Describe your experience with inventories of historic resources. e. Please describe your profession and education as they relate to the following areas or attach your professional resume: architecture, history, architectural history, planning, prehistoric and historic archeology, folklore, cultural anthropology, curation, conservation and landscape architecture or related disciplines. Deschutes County Historic Landmarks Commissioner Application Page 2 of 14 f. How would you describe your attitude toward and perspective on the importance of historic preservation programs in local land use planning and economic development? g. Describe your knowledge of and experience with historic cemeteries. h. Describe your interest in and knowledge of local history. I' 8. How did you hear about this position? ((d o & t d i» (dvn Web Sdi 9. Do you have any neighbors, friends or relatives presently working for Deschutes County? if yes, please list: 10. References: 17LCIG e titer e'd re ` 44 ,. J My signature affirms that the information in this application is true to the best of my knowledge. I understand that misrepresentation and/or omission of facts would be cause for removal from any advisory committee, board or commission to which I may be appointed. I also understand that County policy requires disclosure of actual or potential conflicts of interest by persons appointed by the Deschutes County Board of County Commissioners to any committee. Alt information and/or documentation related to service on the Deschutes County Landmarks Commission is subject to public records disclosure. &(1n CI444G1/Gee .) Signature bate Please mail or deliver your application no later than Friday, February 24, 2012 at 5:00 p.m. to: Nick Lelack, Deschutes County Planning Director 117 NW Lafayette, P.O. Box 6005 Bend, OR 97708-6005 Nick can be reached at (541) 385-1708 or via email at nick.lelack@deschutes.org Deschutes County Historic Landmarks Commissioner Application Page 3 of 14 A.KellyMadden Bend, Oregon 97701 Education July 2006 Advanced Intermediate Spanish Certificate, Progama de Aprendizaje de la Lingua Castellana, Sucre, Bolivia April 2000 Oregon Standard Teaching License, English for Other Languages August 1993 Advanced Spanish Certificate, Escuela de Espanol I.C.A Quetzaltenango, Guatemala November 1991 Oregon Standard Teaching License, French Pre -Primary -12 and Language Arts 5-12 May 1986 Masters Degree in Education, M.ED. Department of Curriculum and Instruction Missouri Life Secondary Teaching Certificate French K-12 and English 7-12 University of Missouri- Columbia December 1982 Bachelor of Arts, Dual Degree- French and English Literature, Department of Arts and Sciences University of Missouri- Columbia May 1980 Diplome Generale, Alliance Francaise - Paris, France Fluent in French and conversational Spanish A. Kelly Madden Professional Experience September 2005 to 2011 Teacher Specialist, High Desert Middle School, Bend, Oregon 6th, 7th 86" grade English Language Learners (ESL, ELL, ELD) March 1999 to June 2005 Teacher, Obsidian Middle School, Redmond, Oregon 8th grade Humanities- Language Arts and History, 8th grade Leadership, 8th grade Romance Languages, 8th grade Talented and Gifted, August 1998 to February 1999 Teacher, St. Mary Star of the Sea, Astoria, Oregon Language Arts, PE and Health - grades 4-8 September 1996 to June 1998 Instructor, Clatsop Community College, Astoria, Oregon Writing 40, Writing 41, Writing 121, Writing 122, Writing 123 English as a Second Language, Job Start at Head Start (grant project) September 1992 to May 1996 Teacher, Gregory Heights Middle School, Portland, Oregon English as a Second Language Core teacher - grades 6, 7, 8 Language Arts, Social Studies and Reading October 1991 to June 1992 Grant High School, Portland, Oregon Newcomer Program, English as a Second Language August 1989 to June 1991 Teacher, American International School, Lisbon, Portugal AP English, Beginning Composition, IB Language A, Freshman English, 7th and 8th grade English, ESL and Journalism Fall 1990 Instructor, University of Maryland -European Division NATO Headquarters, Oeiras Portugal English 101- Introduction to Writing August 1985 to June 1989 Teacher, Rock Bridge Senior High School, Columbia, Missouri French I, French II, American Literature - Junior English, Publications I, II, III A. Kelly Madden Trainings, Special Achievements and Awards US Department Of State, Bureau of Educational and Cultural Affairs Fellowship: Teaching Excellence and Achievement Program. Gyumri, Armenia, Washington D. C, and Lincoln, Nebraska. 2007-2008 Trainer of Trainer's Institute, Sheletered Insrtuction Observation Protocol. 40 hours. High Desert ESD June 2007 SIOP Training, Sheltered Instruction Observation Protocol. 30 hours. Bend- La Pine School District, May 2006 ELD Training, Systematic English Language Development. 21 hours. Bend -La Pine School District December 2006 Boomerang Project, Leadership Training, Basic Training for WEB, 32 hours, Blaine, Washington, February 2006 IB Training, International Baccalaureate, Middle Years Programme, Areas of Interaction Trainings in Humanities and Language AAugust 2003, Colorado Springs Colorado and February 2003, Toronto, Canada Award Winner, Oregon Middle Level Association, Certificate for Outstanding Service, June 2003 State Honor, Service Learning Project (and grant recipient), Veteran's History Project, State Presenter at Memorial Day Celebration sponsored by Oregon State Department of Education, Salem Armory, Salem, Oregon, May 2002 Adopt -a School International, Y2K service trip to supply highland mountain villages with school supplies and medical supplies, Summer 2000 Award Winner, Redmond City Council Recognition Award for volunteer efforts of my Advisory, 2000 Grant Recipient, Chapter II Block Grant, 1994-95, received $30,000 for Project MIDL: "The Multi-Lingual/Cultural Intergenerational Developmental Literacy Project" Presenter, Oregon Middle Level Association Winter Conference, January 1996 Workshop entitled : " Pinatas to Parallelograms, Adapting Curriculum for the ESL Student" Honoree, Most Influential Teacher Award, awarded by the University of Missouri Honors College, 1989-90 A. Kelly Madden Activities and Duties High Desert Middle School Bend, Oregon • WEB coordinator. 2006-2009 • Curriculum Adoption Committee for ELL 2006-2007 Obsidian Middle School Redmond, Oregon • lB Team 2003-2005 • Recycling/ Green School Coordinator 2003-2005 • Track Coach 1999- 2003 Head Coach 2001, 2002 • Talented and Gifted Program Coordinator 2002-2003 • SITE Council 1999-2001 • Text book adoption team member Clatsop Community College Astoria, Oregon • Developed ESL program for migrant farm workers at local housing development • Wrote mini -grant- ESL program Clatsop Community College- "Books for Students" • Coordinated Volunteer Literacy Tutor Workshop Fall 97- Clatsop Community College Astoria, Oregon • President- North Coast Chorale, a classical choral music group for Northwest Oregon • Columnist- bi-monthly columnist for the Daily Astorian on Senior Citizen Issues Gregory Heights Middle School Portland, Oregon • SITE Council Chair 1995-96 • SITE Council member 1994-95 • Testing Coordinator for ESL Department • Supervise all bi-lingual assistants 1993-96 • Coordinate and Implement Project MIDL • Adviser of school paper "The Panther Press" Grant High School Portland,Oregon • Coordinated Newcomer Program 1992 American International School • English Department Chair 1990-91 • Junior Class Sponsor 1989-90 Rock Bridge Senior High School • Journalism Adviser- "The Rock" 1985-89 • Literary Magazine Adviser- "Echoes from the Bridge" 1987-1989 A. Kelly Madden References for A. Kelly Madden Recommendations from the following individuals are available. My credentials are on file and available from: Educational Placement Center 118 Hill Hall University of Missouri- Columbia Columbia, Missouri 65211 (573) 882-8311 Gary DeFrang Principal High Desert Middle School 61000 Diamondback Lane Bend, Oregon, 97701 (541) 383-6486 adefrana@Bend. k 12. or.us Janefe Beers (former Principal, Obsidian Middle School) Superintendent Dayton School District #8 526 Ferry Street Dayton, Oregon 97114 (503) 864-2215 ianelle.beers@davton.k12.or.us Patricia McBride (former Assistant Principal, American International School, Lisbon) Dulut Minnesota 55804 Rachel A. Stemach ADDRESS Bend, OR 97701 PHONE EMAIL RECEIVED BY: irir FEB 1 7 2012 DELIVERED BY: February 17, 2012 Nick Lelack, Planning Director Deschutes County Community Development Department 117 NW Lafayette Ave Bend, OR 97701 re: Historic Landmarks Commission application Dear Mr. Lelack, Enclosed you will find a completed application for a position with the Deschutes County Landmarks Commission and my professional resume. I am an Oregon -licensed architect, and am a partner at Ambient Architecture with my husband, here in Bend. The following two anecdotal paragraphs explain my background and zeal for architectural history. I've witnessed Central Oregon change before my eyes. In fact, we've grown up together. As a child, I used to marvel at photographs of the Pilot Butte Inn, demolished the year before I was born. My schootbus used to drive by on Industrial Way next to the Brooks -Scanlon Crane Shed, and then parallel to the Shevlin-Hixon train trestle that spanned the Deschutes River. I've watched magical places tike the Peterson Rock Garden deteriorate. I've also seen places very dear become new again - the Tower Theatre, the Bend Amateur Athletic Club, the Allen - Rademacher House, and even my own house. Researching tax assessor's records and micro -fiche articles on my 92 -year old, westside mill home, I tried to find images or information of what our home was like in the early part of the century before it was hastily modified. Its true self was unveiled to us in 2006 when the asbestos siding was removed, exposing its original mill -scrap lapped siding, and lined on the interior by 1920's -era newspapers. At the age of ten, I sketched house plans. At Bend Senior High, I turned to drafting courses. At Central Oregon Community College, it was computer-aided drafting. At University of Idaho, it was earning a degree in Architecture. For awhile, I considered an internship with the National Parks Service, researching and documenting historic structures throughout the country. Instead, right out of college, I found a rich cache of building projects, both new and old, in Portland, Maine. For four years, I soaked in much experience in restoration and rehabilitation of existing structures, the best experiences of which were found at Pineland Center, a 19 -building campus (most of which are rehabilitated early 20th century buildings from the state's mental health department), and is now a successful convention and business campus for central and southern Maine. Deschutes County's heritage has always been important to me, and on a professional level I have wished for sometime to be a part of it by giving time and expertise to my community. 1 am excited about the possibility of becoming a Historic Landmarks Commissioner. 1 look forward to hearing from you and discussing this position further. Sincerely, Rachel A. Stemach Architect, LEED AP+ DESCHUTES COUNTY HISTORICAL LANDMARKS Commissioner Application 1. Position applied for: >4 Unincorporated County Sisters Pioneer Association 2. Name: A. Address: 3. Phone: Email: Cell: SQ,11ti2 Fax:-,� 4. Special skills, interests, hobbies that you believe would bring special value to your ability to serve on this Commission: M. a LONGI 741s at Dcivr" , 1 Zi,k t A436 -or" Ls2<,Fim-77iv s/w/F l W/& ©Lft '1(VO NG . rr P4U Ns Me" 71) s ,Sts/RE OF MIR H eg/44 6usr -ck yr✓ a. /3 ar r l , o, eE wH J A 5t 2( 1t . /s S1-)41-73 oniP £ H,.IU7/4T&7). A20Ht7 r , l rlAl>17-1'E PWAsinz 4/= iNeVkiAr� (N' S )z.6.t _ .67342040"0-1 CENT3lzf Y- rear, 2At- IP Ul LD/nf e.S pvgJtit4, F-tIIL Kt /p,/ NQLS l pov+'J . J A , -14UE $Jd11Ltl1r 71-1AT 'WPM/EYE-5 !?AC& HOn1 toggvu7v,t , tt.� POWJW HATt ee. E? aatriknoN l ' Gr uts or o1 8N se714, Ae9, 4g- i'i , Ag i saw,13t_TZNI1lNL1 tiEAfr.Jagj oft.) Kis -melt piassvgvAnDiv S?1?4„4 4./(77/65 5. Current occupation and duties: R.-aiS'1 oar&tAi I IIA-td0 A4204/187-7", (;1IIPL0YED AT 4l 4 /py 'r L CHt7?z7LR 1 & DOWNTUKt)u BMA, PUT185 lNGLUDE s1'A-PL4ntntl, FeMt13l tl7ti STUDIES, Dt;'3/4/L. f -NA toNs1ztsoflbk! DoJeOfl4? t17z1"7(ski MDRDINA716)V , Ptr 71LSr s% Z/F(c4710YvS, fiqV/S exiv57-40c7/6N ,A,DM t nrt sT72AT76/J , 6. Other volunteer, committee, board andlor commission experience: From: 6o/07 (Month/Year)Organization Name: EZ1UR. hrtSr N674F4fneHn0D A- '6c/471e/v To: ,E2ek-$ ' (Month/Year)Address: P 0. Sts c /ASPE. 87709 Type of organization: G U 1 C U rt'i tvt uN t c-tkT761 i 13Alser6 tUON - Pi?oPi r R.),2 Yvt5-15/Da es ID Role: St'%g157A y /7a(leC.7? Activities/Achievements: m"U.r-rH W 'f- &Nltt uAt_ 111 HT1 N 4 srrup -- POW v 01.374776A1', EVl Al t 1 / n5t 1) 4 u 6N - PEA)P t' \-rt)s F'02 CI P-PwC P2opos ,s If you are still serving in this capacity, do you foresee any conflicts between this Commission and the position you currently hold? Yes X No Deschutes County Historic Landmarks Commissioner Application Page 1 of 14 From: To: oil is 2it'7Ur (Month/Year)Organization Name: UVINZ4 f30II,Dtnsz, CA-te.l t,m.Sz4>✓" At (Month/Year)Address: 1zl dant Aye. Ai MG, 'PrertANO, 012 q'izoq Type of organization: InrrepnMAnbIti t.ttlhr.rc, c-0 Ze * 1 irtsns y JQPYS -t OvvARDs s6CU LL -V ‘/Qs r, Role: 'i WtJt _pefvtAA ert�2_ rot-ru�puY 17-10-1 amp ezouyk1c4u0( • Activities/Achievements: UNb C Iva TMnflnrxr PO woi2ptnlr1-rtn3LI A./v►J PRA;547kmM WtAL. t'"C'11Ut"Tr'-7 1ht7R01)00nrZr UVInr4t otht.o//Ula cHA 1XtE If you are still serving in this capacity, do you foresee any conflicts between this Commission and the position you currently hold? Yes )( No From: (Month/Year) Organization Name: To: (Month/Year) Address: Type of organization: Role: Activities/Achievements: If you are still serving in this capacity, do you foresee any conflicts between this Commission and the position you currently hold? Yes No From: (Month/Year) Organization Name: To: (Month/Year) Address: Type of organization: Role: Activities/Achievements: If you are still serving in this capacity, do you foresee any conflicts between this Commission and the position you currently, hold? Yes No (Please attach additional pages if you have additional information regarding your organizational involvement.) 7. Please be prepared to answer the following questions if you are interviewed: a. Describe your knowledge of and experience using the Secretary of the Interior's Standards and Guidelines for Rehabilitation, if any. b. Describe your experience with local historical preservation codes. c. Describe your knowledge of and experience restoring or rehabilitating historic structures. d. Describe your experience with inventories of historic resources. e. Please describe your profession and education as they relate to the following areas or attach your professional resume: architecture, history, architectural history, planning, prehistoric and historic archeology, folklore, cultural anthropology, curation, conservation and landscape architecture or related disciplines. Deschutes County Historic Landmarks Commissioner Application Page 2 of 14 f. How would you describe your attitude toward and perspective on the importance of historic preservation programs in local land use planning and economic development? g. Describe your knowledge of and experience with historic cemeteries. h. Describe your interest in and knowledge of local history. 8. How did you hear about this position? 11/4ifJ NIOHI C*1 h'i4l Q.IF v h 1 /z5 9. Do you have any neighbors, friends or relatives presently working for Deschutes County? If yes, please list: NohiE 10. References: 1vttL4tl=1E� 4N1)e't?.sor1 'TON, i3672 -7d.. d6HAisb,U 81)Jt t)R q'i7o1 -11111111111111110 oe MINIM q-T7b � My signature affirms that the information in this application is true to the best of my knowledge. I understand that misrepresentation and/or omission of facts would be cause for removal from any advisory committee, board or commission to which I may be appointed. I also understand that County policy requires disclosure of actual or potential conflicts of interest by persons appointed by the Deschutes County Board of County Commissioners to any committee. All information and/or documentation related to service on the Deschutes County Landmarks Commission is subject to public records disclosure. fewitge-maPh .2-070z_ Signature Date Please mail or deliver your application no later than Friday, February 24, 2012 at 5:00 p.m. to: Nick Lelack, Deschutes County Planning Director 117 NW Lafayette, P.O. Box 6005 Bend, OR 97708-6005 Nick can be reached at (541) 385-1708 or via email at nick.lelack@deschutes.org Deschutes County Historic Landmarks Commissioner Application Page 3 of 14 Rachel A Stemach ADDRESS PHONE EMAIL Profile My delight in architectural design, building technologies and detailing, documentation and construction continues to grow with every project, new or remodeled. Opportunities and challenges grant a sense of purpose and accomplishment that I constantly strive for. The client's interaction and satisfaction in their successfully completed buildings are always the greatest reward in my profession. Experience ARCHITECT, AMBIENT ARCHITECTURE; BEND, OR - 2010 TO PRESENT Fully -realized potential in design and coordination of large multi -family housing to retail tenant improvements, as well as feasibility studies and visioning concepts, building material selections, specifications and public -bid proposals and firm marketing strategies. PROJECT ARCHITECT, STEELE ASSOCIATES ARCHITECTS; BEND, OR - 2004 TO 2009 Instrumental expertise in all phases of design and construction including commercial/ industrial campuses, various mixed-use buildings, education remodels, dozens of tenant improvements including medical, retail, restaurant, and government agencies. JOB CAPTAIN, SMRT, INC; PORTLAND, ME - 1999 TO 2003 Extensive involvement in design phases including conceptual design, space planning, SD, DD, CD phases and detailing for various project types including healthcare, correctional and secondary education, as well as commercial building historic rehabilitation. ARCHITECTURAL INTERN, THOMAS DEATHERAGE, ARCHITECT; BEND, OR - 1997 TO 1999 Summer internship duties consisting of CD phase documents, Addenda/ bidding phase, specification writing and office administration. Projects While at Ambient Architecture 1002 NW BOND STREET RENOVATION; BEND, OR (IN CONSTRUCTION) AMERICAN RED CROSS DONOR CENTER TENANT IMPROVEMENT; BEND, OR (IN CONSTRUCTION) OSU-CASCADES STRATEGIC CAMPUS VISIONING; BEND, OR LONE PINE VILLAGE 48 -UNIT HOUSING PROJECT; THE DALLES, OR (IN CONSTRUCTION) LIVING CITIES DESIGN CHALLENGE COMPETITION - BEND, OR (SHOWCASED IN VANCOUVER, B.C. SPRING 2011) RE/MAX REVOLUTION TENANT IMPROVEMENT, SISTERS, OR (COMPLETED SPRING 2011) UNDERWOOD RESIDENCE, SISTERS, OR (COMPLETED SPRING 2008) FRESNO AVENUE RESIDENCE REMODEL, BEND, OR (COMPLETED WINTER 2006) While at Steele Associates MOSAIC MEDICAL EXPANSION TENANT IMPROVEMENT; BEND, OR (COMPLETED FALL 2009) BEAR CREEK ELEMENTARY SCHOOL REMODEL & EXPANSION; BEND, OR (COMPLETED FALL 2009) KARCHER BUILDING, WITH IDAHO ORTHOTIC & PROSTHETIC SERVICES; MERIDIAN, ID (COMPLETED SPRING 2009) OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY TENANT IMPROVEMENT; BEND, OR (COMPLETED FALL 2008) ANIMAL EMERGENCY CENTER ADDITION & REMODEL TENANT IMPROVEMENT; BEND, OR (COMPLETED SUMMER 2008) DECOY BAR & GRILL TENANT IMPROVEMENT; BEND, OR (COMPLETED WINTER 2007) Rachel A Stemach ADDRESS Bend, OR 97701 PHONE EMAIL FRANKLIN CROSSING; BEND, OR (COMPLETED SUMMER 2006) CENTRAL OREGON RADIOLOGY ASSOCIATES TENANT IMPROVEMENT; REDMOND, OR (COMPLETED FALL 2005) BEND MEMORIAL CLINIC TENANT IMPROVEMENT; REDMOND, OR (COMPLETED FALL 2005) MIDSTATE ELECTRIC COOPERATIVE; LAPINE, OR (COMPLETED FALL 2005) While at SMRT AROOSTOOK MEDICAL CENTER ADDITION & RENOVATION; PRESQUE ISLE, ME (COMPLETED SPRING 2004) ELLIOT GERIATRIC HEALTH CENTER; MANCHESTER, NH (COMPLETED SUMMER 2002) DURHAM HALL AT PINELAND CENTER RENOVATION; NEW GLOUCESTER, ME (COMPLETED SPRING 2002) YORK COUNTY JAIL & SHERIFF'S OFFICE; ALFRED, ME (COMPLETED FALL 2003) MARANACOOK MIDDLE AND HIGH SCHOOLS; READFIELD, ME (COMPLETED FALL 2001) Accreditations Licensed Architect, State of Oregon (December 2007) Licensed Architect, State of Idaho (July 2010) NCARB Certification, 2008 LEED® AP+ - Leadership in Energy & Environmental Design Accredited Professional, U.S. Green Building Council, September 2007 Education University of Idaho, Moscow, ID - Bachelor of Architecture w/ Art Minor, 1999; 3.45 GPA Central Oregon Community College, Bend, OR - General Studies, 1995: 3.71 GPA Bend Senior High School, Bend, OR - AP English & Science courses, 1993; 3.84 GPA Skills ArchiCad 14 & 15, Building Information Modeling (BIM) AutoCAD (2010 and all versions since Release 12) Arcom MasterSpec Oregon Structural Specialty Code (OSSC) and International Building Code (IBC) City of Bend ePtans (electronic plan submittal) Microsoft Office (Word, Excel, Outlook) Adobe (Photoshop Elements, Acrobat Professional) Windows 2000, XP and Macintosh OS X and above Hand -drafting & color rendering techniques Activities £t Awards Living Building Challenge Volunteer Ambassador, Bend, OR; 2012 -present Commute Options of Central Oregon Commuter Challenge Winner, Bend, OR; 2010 Secretary/ Treasurer - Riverwest Neighborhood Association, Bend, OR; 2007 -present Muralist - Working Wonders Children's Museum, Bend, OR; 2004 References PERSONAL CLIENT COLLEAGUE Michelle Anderson Todd a Roberta Johnson David Coffin, Jr. Digital Editor Owners Architect, AIA h Horse.com ortsvision Bend Sawmill Bend, OR lam Bedford Hills NY ' Areas Outiined io Gold include: I. All Except.. lands; and 2. L.ds in ...mg.. that are adjacent to Exception Lends ind, • by public lands; and , ........"- ' - ,...,' - have an existing renidential acidernent poem and/or are onrreunda= . , , ............,,., 3. Lands in °thoraces...at haven existing residential act dement "‘,.,,,,' , - putom.d ore surrounded by public lands...,c-' .•• // H 1 Zoning O L a (a co (a 2 CU CU 0 V vv c > t0 0 v to M Q V 4 , fl Q1 in f0 '0 M 'E l0 (6 > N 0 -0 m s 0 C0 v) o L Q C *' •h 0.'77)�, •E U "C < !0 • vv N o. c m C r (33 C C'— C C— C C a) ,U 0 N 'i � U 730 u 0 U u a o 0.. •E co z ° a- •E cc ° c- 'c co c C -C c}0� C .0 -a + C .0 -a @ 1to t0 v) co v r6 cn l4 t0 A V) , N 'a V a--; 1-3 v cis 73 � N i V V i U V v Q 41 (0 p N t0 O 2 1- Lr) < -o 0_.0 c sa..0 CNI rn Road Department 61150 SE 27th St. • Bend, Oregon 97702 (541) 388-6581 • FAX (541) 388-2719 Hazard Abatement per ORS 368.271 Date: March 15, 2017 To: Board of County Commissioners Through: Tom Anderson, County Administrator From: Chris Doty, PE, Director of Public Works RE: Nuisance Abatement — Sinkhole in Bill Martin Road On the evening of February 8, 2017 it was reported that a sinkhole was developing in Bill Martin Road (off of Tumalo Reservoir Road), west of Tumalo. It was initially reported by nearby residents and verified by Deschutes County Sherriff's Deputies. Bill Martin Road is a Local Access Road (LAR) as defined by OR 368.001 and is not a county maintained road, although Deschutes County remains the jurisdictional authority for the road. As a LAR, Deschutes County is not liable for failure to improve a LAR or keep it in repair per ORS 368.031. However, pursuant to ORS 368.271, a county road official may take any reasonable action to abate a road hazard that creates a substantial risk of damage, injury or other emergency condition, without delay and without notice or hearing. Deschutes County Road Department personnel arrived at the location of the sinkhole at approximately 9:30 PM and observed that a sinkhole had developed in an area where a significant amount of stormwater run-off was flowing into the low point of the roadside ditch of Bill Martin Road approximately one mile north of Tumalo Reservoir Road. The sinkhole area was observed to be approximately 20 feet wide (width of road) by 15 feet long — and would eventually measure 30 feet long once fully excavated. The sinkhole was approximately 3 feet deep. The stormwater was draining into the sinkhole at approximately 500 gallons per minute and was disappearing into the roadbed with no evidence of ponding — as the substrate was very permeable. Bill Martin Road is a 1.5 mile road that is the single access to approximately six residential properties and several undeveloped lots. The road traverses through property (500+/-) acres owned by Tumalo Irrigation District and was constructed by the District in 2010 as a LAR to serve development. The road is the subject of litigation filed by several accessing property owners against Tumalo Irrigation District and Deschutes County, however the actions taken and this report are unrelated to the litigation. Given the road obstruction and ongoing road damage caused by the sinkhole, and the resulting lack of public access to the affected properties, I determined that the sinkhole created a substantial risk of damage, injury or other emergency, and a decision was made to immediately abate the hazard with Road Department equipment, materials, and personnel. Three 12 -inch culverts were installed to divert water collecting in the ditch from the north side of the road to the south side — which is the natural drainage pattern for the area. The sinkhole area was excavated to solid material within the road bed as well as both sides of the excavation. Fabric was used to line the excavated area and 3 -inch minus fill material was used to backfill the excavation. The fill was capped with 5 -inches of 3/" -minus base rock (gravel) surfacing. The project was completed on February 9th. The total cost of the project was $21,617.71. Since this abatement was performed as an emergency action, ORS 368.271 requires the county road official to file a written report with the county governing body setting forth the reason for the abatement, the actions taken, the cost, and any other information the governing body requires. This memorandum fulfills the statutory reporting requirement. ORS 368.276 affords the County a process by which to recoup costs associated with abatement of an emergency road hazard from a landowner who is found liable for the hazard. This statute states that a landowner may be held liable if the hazard is caused by the landowner allowing rainfall or water passing over his land to overflow or discharge onto a public road. In this instance, significant snowmelt runoff from property owned by Tumalo Irrigation District collected within the roadside ditch of Bill Martin Road and pooled at a localized low point within the roadway, without the benefit or presence of any drainage feature (culvert), such that it eventually undermined the roadbed and caused the sinkhole. Thus, the County may pursue reimbursement from TID for the costs of abating the emergency road hazard. If the Board wishes to pursue reimbursement for the costs of abatement, ORS 368.276 provides that the County shall conduct a hearing to determine the person liable and order the costs to be paid. If so directed, staff will schedule the required hearing and inform Tumalo Irrigation District per the requirements of the statute. Pictures Sinkhole in Bill Martin Road Diverted run-off, west of sinkhole Excavated sinkhole area Voids in subgrade created by flowing water Finished product, post abatement. 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/ TO: Board of County Commissioners FROM: Peter Russell, Senior Transportation Planner DATE: April 26, 2017 SUBJECT: Staff update on potential Board actions regarding Land Use Board of Appeals remand on Goal 11 Exception for southern Deschutes County (Ordinance 2016- 007 which implemented File 247 -15 -000308 -PA) BACKGROUND The Land Use Board of Appeals (LUBA) on November 1, 2016, issued its Final Opinion and Order, which remanded to the Board of County Commissioners its approval of an exception to Goal 11 (Public Facilities and Services) for sewers in southern Deschutes County. The remand was LUBA Case Number 2016-020. The Board approved the Goal 11 via Ordinance 2016-007 on Feb. 10, 2016, and Central Oregon LandWatch appealed the ordinance to LUBA. Under LUBA's process, the local jurisdiction must either hold a remand hearing within 180 days of the decision or request an additional extension. If the local jurisdiction does neither, then the LUBA decision stands. The 180th day in the Goal 11 remand is April 30, 2017, which is a Sunday. Therefore the actual date to either hold a hearing or request an extension would be Monday, May 1. POST -REMAND DISCUSSIONS AMONGST COUNTY AND STATE PARTNERS: Deschutes County, Department of Environmental Quality (DEQ), and Department of Land Conservation and Development (DLCD) were co -applicants on the Goal 11 Exception. After reading and reviewing the remand, staff met several times to discuss LUBA's decision and potential next steps. LUBA's main reasons for the remand were, in no order of priority, the need for a Goal 11 Exception was not clearly stated; the exception was overly broad in geographic scope; there was no requirement to connect to any sewers systems; no specific groundwater level for each of the lots in the Goal 11 Exception area was provided; no documentation of the built/unbuilt status of all the lots in the Goal 11 Exception area was included; and there needed to be a more detailed assessment of the potential development of the affected lots. State and County staff all independently reached the conclusion that it would be nearly impossible to address all of LUBA's concerns for the entire Goal 11 Exception area. Even if the respective staffs pursued each of the identified deficiencies, the amount of time, resources, and costs would be immense. Quality Services PCilt)rined ivilli Pride NEXT STEPS The Board can: • Not extend the remand, which would make the LUBA decision final • Request an extension of the remand and continue discussions with State agencies regarding remand alternatives, recognizing that a final decision must be rendered within 180 days -2- 1 BEFORE THE LAND USE BOARD OF APPEALS 2 OF THE STATE OF OREGON 3 4 CENTRAL OREGON LANDWATCH, 5 Petitioner, 6 7 vs. 8 9 DESCHUTES COUNTY, 10 Respondent, 11 12 and 13 14 OREGON DEPARTMENT OF 15 ENVIRONMENTAL QUALITY, 16 Intervenor -Respondent. 17 18 LUBA No. 2016-020 19 20 FINAL OPINION 21 AND ORDER 22 23 Appeal from Deschutes County. 24 25 Paul D. Dewey, Bend, filed the petition for review and argued on behalf 26 of petitioner. 27 28 David Doyle, County Counsel, Bend, filed a response brief on behalf of 29 respondent. 30 31 Diane Lloyd, Assistant Attorney General, Salem, filed a response brief 32 and argued on behalf of intervenor -respondent. With her on the brief was Ellen 33 F. Rosenblum, Attorney General. 34 35 RYAN, Board Member; HOLSTUN, Board Chair; BASSHAM, Board 36 Member, participated in the decision. 37 38 REMANDED 11/01/2016 Page 1 1 You are entitled to judicial review of this Order. Judicial review is 2 governed by the provisions of ORS 197.850. Page 2 1 Opinion by Ryan. 2 NATURE OF THE DECISION 3 Petitioner appeals a county ordinance adopting a reasons exception to 4 Statewide Planning Goal 11 (Public Facilities and Services) in order to allow 5 sewer systems in rural unincorporated lands in the county. 6 MOTION TO INTERVENE 7 The Oregon Department of Environmental Quality (DEQ), an applicant 8 below, moves to intervene on the side of respondent. The motion is allowed. 9 FACTS 10 In 2007, DEQ, the Oregon Department of Land Conservation and 11 Development (DLCD), and the United States Geologic Survey (USGS) 12 commenced a study of a 247 -square -mile area of southern Deschutes County 13 and northern Klamath County, described sometimes as the "La Pine Sub - 14 basin." Some aquifers in the study area that supply drinking water for 15 approximately 18,000 residents range from less than two feet to thirty feet 16 below the surface. The study area additionally contains areas with highly 17 porous and permeable soils, with no impervious layer to protect deeper aquifers 18 from nitrate contamination. 19 The decision explains that approximately 7,000 improved lots spread 20 across both counties currently use a septic system for sanitary waste disposal, 21 and obtain water from the aquifers via individual on-site wells. A GIS analysis 22 identified 3,353 high groundwater lots, of which 2,153 are vacant. 1,823 of Page 3 1 those 2,153 vacant lots are zoned Rural Residential — 10 Acre Minimum (RR - 2 10) or RR -10 and Floodplain (FP). Record 129. The 2007 USGS study 3 assumed full build out by 2019 of all lots that could be developed, and 4 concluded that the La Pine Sub -basin is at risk of having nitrate levels 5 exceeding federal and state levels for drinking water at the assumed full build 6 out year of 2019. The 2007 USGS study also concluded those nitrate levels 7 would remain high and eventually dissipate over approximately 140 years after 8 full build out.' In 2013, DEQ issued a steering committee report that 9 recommended the installation of sewer systems on the lands identified in the 10 report's study area. Connection to the new sewer lines, however, would be 11 optional for property owners. Record 125. 12 In 2015, DEQ, DLCD, and the county applied to amend the county's 13 Comprehensive Plan (DCCP) to take an exception to Statewide Planning Goal 14 11 (Public Facilities and Services). The Goal 11 exception allows the 15 establishment of new sewer systems and the extension of existing sewer 1 The challenged decision describes the USGS study's conclusions: "These studies have generally reached the conclusion that the groundwater aquifer is vulnerable to increasing concentrations of nitrates and other contaminants associated with domestic sewage. The USGS study predicted nitrate concentrations increasing above the federally adopted drinking water standard throughout the area over time. Concentrations would increase for about 140 years after full build -out, at which time more than 9,000 acres would have groundwater concentrations exceeding 10 mg/L." Record 139. Page 4 1 systems on various lands spread over approximately 180 square miles in the 2 county and identified on 18 maps attached to the decision, described as 3 "unsewered areas between Sunriver and the Klamath County border; this area 4 is formally defined as those unincorporated portions of Deschutes County 5 contained in Townships 19S, 20S, 21S, and 22S and Ranges 9E, 10E and 11E, 6 except those areas authorized for sewer." Record 125.2 A series of maps that 7 are part of the ordinance shows that these exception areas generally include 8 relatively small platted lots, but include some larger properties, located 9 generally west of a 25-mile-long section of Highway 97 that extends south 10 from Sunriver past the City of La Pine to the Klamath County border. Record 11 101-19. The planning commission held two public hearings on the proposed 12 exception area and the board of county commissioners held one public hearing. 13 The board of county commissioners adopted Ordinance 2016-007 approving an 14 exception to Goal 11. This appeal followed. 15 INTRODUCTION 16 We begin by briefly describing the applicable law. Goal 11 is "[t]o plan 17 and develop a timely, orderly and efficient arrangement of public facilities and 18 services to serve as a framework for urban and rural development." Goal 11 19 provides, in relevant part: 20 "Local Governments shall not allow the establishment or 21 extension of sewer systems outside urban growth boundaries or 2 A township equals 36 square miles. Page 5 1 unincorporated community boundaries, or allow extensions of 2 sewer lines from within urban growth boundaries or 3 unincorporated community boundaries to serve land outside those 4 boundaries, except where the new or extended system is the only 5 practicable alternative to mitigate a public health hazard and will 6 not adversely affect farm or forest land. 7 "Local governments may allow residential uses located on certain 8 rural residential lots or parcels inside existing sewer district or 9 sanitary authority boundaries to connect to an existing sewer line 10 under the terms and conditions specified by Commission rules. 11 "Local governments shall not rely upon the presence, 12 establishment, or extension of a water or sewer system to allow 13 residential development of land outside urban growth boundaries 14 or unincorporated community boundaries at a density higher than 15 authorized without service from such a system." 16 The prohibition in the Goal on new sewer systems and extension of existing 17 sewer systems outside of urban growth boundaries was adopted by LCDC in 18 1994, in response to the Supreme Court's decision in 1000 Friends of Oregon 19 v. LCDC (Curry County), 301 Or 447, 724 P2d 268 (1986). As the Court of 20 Appeals explained in Gisler v. Deschutes County, 149 Or App 528, 535, 945 21 P2d 1051 (1997): 22 "[T]he overall objectives of [Goal 11] are to regulate development 23 as well as services and facilities, to coordinate development levels 24 with service and facility levels and, together with Goal 14, to 25 channel intensive uses and development to existing urban and 26 urbanizable land first before allowing the conversion of or intense 27 nonresource uses on the rural land that comprises the areas outside 28 UGBs." 29 30 "[T]he requirements of Goal 11 go well beyond the limitation on 31 the location of sewers * * * the goal also regulates the location, Page 6 1 pace and direction of residential and other development, and it 2 limits and requires coordination between the placement of 3 urban -level development and urban -level services and facilities on 4 rural land * * *." Id. at 535-36. 5 OAR Chapter 660, division 011 implements Goal 11, and like the Goal 6 prohibits the establishment or extension of a sewer system outside a UGB 7 except in limited circumstances.3 OAR 660-011-0060(9) was adopted by 8 LCDC in 2005, and allows the extension of a sewer system outside the UGB 9 where the local government approves a reasons exception to Goal 11 and 10 adopts land use regulations that "prohibit the sewer system from serving any 11 uses or areas other than those justified in the exception." OAR 660-011- 12 0060(9) provides examples of reasons that could justify an exception to Goal 13 11, including to avoid an "imminent and significant public health hazard." 3 OAR 660-011-0060(2) provides: "Except as provided in sections (3), (4), (8), and (9) of this rule, and consistent with Goal 11, a local government shall not allow: "(a) The establishment of new sewer systems outside urban growth boundaries or unincorporated community boundaries; "(b) The extension of sewer lines from within urban growth boundaries or unincorporated community boundaries in order to serve uses on land outside those boundaries; "(c) The extension of sewer systems that currently serve land outside urban growth boundaries and unincorporated community boundaries in order to serve uses that are outside such boundaries and are not served by the system on July 28, 1998." Page 7 1 ORS 197.732(1) and Goal 2, Part II(c) allow a local government to adopt 2 a "reasons" exception to a Goal where, based on consideration of four factors, 3 the local government identifies reasons that "justify why the state policy 4 embodied in the applicable goals should not apply[.]"4 ORS 197.732(1)(b) 5 defines "exception" to mean in relevant part "a comprehensive plan provision, 6 including an amendment to an acknowledged comprehensive plan, that * * * 7 [i]s applicable to specific properties or situations and does not establish a 8 planning or zoning policy of general applicability[.]" OAR 660-004-0020(2) 9 sets out and expands on the four factors in Goal 2, Part (II)(c) that must be 10 addressed when adopting a reasons exception. Against that regulatory 11 backdrop, we address petitioner's assignments of error. 4 Goal 2, Part (II)(c) provides the following standards for a reasons exception: "(1) Reasons justify why the state policy embodied in the applicable goals should not apply; "(2) Areas which do not require a new exception cannot reasonably accommodate the use; "(3) The long-term environmental, economic, social and energy consequences resulting from the use of the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the proposed site; and "(4) The proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts." Page 8 1 SECOND ASSIGNMENT OF ERROR 2 OAR 660-011-0060(9) provides: 3 "A local government may allow the establishment of new sewer 4 systems or the extension of sewer lines not otherwise provided for 5 in section (4) of this rule, or allow a use to connect to an existing 6 sewer line not otherwise provided for in section (8) of this rule, 7 provided the standards for an exception to Goal 11 have been met, 8 and provided the local government adopts land use regulations 9 that prohibit the sewer system from serving any uses or areas other 10 than those justified in the exception. Appropriate reasons and facts 11 for an exception to Goal 11 include but are not limited to the 12 following: 13 "(a) The new system, or extension of an existing system, is 14 necessary to avoid an imminent and significant public health 15 hazard that would otherwise result if the sewer service is not 16 provided; and, there is no practicable alternative to the 17 sewer system in order to avoid the imminent public health 18 hazard, or 19 "(b) The extension of an existing sewer system will serve land 20 that, by operation of federal law, is not subject to statewide 21 planning Goal 11 and, if necessary, Goal 14."5 22 In sum, OAR 660-011-0060(9) allows the county to take a reasons exception to 23 Goal 11 "provided the standards for an exception to Goal 11 have been met[.]" 24 The reason the county gave for the exception is that a "public health 25 issue" from nitrate contamination of ground water in the southern part of the 26 county is "inevitable unless sewers can be made potentially available" in the 27 southern part of the county. Record 95. The county reasoned that the 5 Subsection (9)(b) of the rule was adopted in 2008. Page 9 1 "combination of existing and planned land uses, depth to groundwater, [and] 2 infrastructure needs related to the distribution and disposal of wastewater" 3 make a public health issue "inevitable" but not "imminent." Id. 4 In its second assignment of error, petitioner argues that having 5 concluded that the sewers are not "necessary to avoid an imminent and 6 significant public health hazard that would otherwise result if the sewer service 7 is not provided," OAR 660-011-0060(9)(a) does not provide a basis to justify 8 the exception. The county and DEQ respond that the two examples included in 9 subsection (9)(a) and (b) are not intended to describe the complete universe of 10 "appropriate reasons and facts" that could warrant a reasons exception to Goal 11 11, and that the county properly relied on OAR 660-011-0060(9) and the 12 reasons exception standards in OAR 660-004-0020 and -0022 as the basis for 13 the exception. 14 Petitioner's assignment of error requires us to ascertain the meaning of 15 the phrase "appropriate reasons and facts for an exception to Goal 11 include 16 but are not limited to the following[.]" The meaning of an administrative rule is 17 a question of law, governed by the same principles that apply to the 18 interpretation of statutes. Gunderson, LLC v. City of Portland, 352 Or 648, 19 662, 290 P3d 803 (2012). We first examine the text and context of the rule to 20 determine the intent of LCDC in adopting the rule. The text of the rule includes 21 the phrase "include but are not limited to" in describing examples of 22 "appropriate reasons and facts" that could justify a reasons exception to Goal Page 10 1 11. When they precede a list of examples, statutory terms such as "includes" 2 and "including but not limited to" typically convey an intent that the 3 accompanying examples be read in a nonexclusive sense. State v. Kurtz, 350 Or 4 65, 74, 249 P3d 1271 (2011). Our interpretation of the general term 5 "appropriate reasons and facts" includes consideration of the specific examples 6 listed. Schmidt v. Mt. Angel Abbey, 347 Or 389, 404, 223 P3d 399 (2009). 7 Accordingly, the listed examples are two examples of "appropriate reasons and 8 facts" that could justify a reasons exception to Goal 11. As examples of 9 "[a]ppropriate reasons and facts for an exception to Goal 11," OAR 660-011- 10 0060(9)(a) and (b) also provide context for determining the scope of the 11 general term "appropriate reasons and facts," but they do not state the only 12 "acceptable reasons and facts for an exception to Goal 11" to extend a sewer 13 system into a rural area to solve a public health problem. 14 The administrative rule history supports DEQ's and the county's position 15 that the rule is not intended to describe the complete universe of situations that 16 could justify a reasons exception to Goal 11.6 The rule history confirms that 6 A DLCD staff report to LCDC in preparation for LCDC's consideration of the rule amendment at its February 2005 meeting explains that the existing rules for a reasons exception at OAR 660-004-0022 can be relied on to establish "appropriate facts and reasons" for a Goal 11 exception: "The proposal is to provide local governments with an appropriate reason necessary for taking an exception to Goal 11. The proposed term `avoid an imminent and significant public health hazard' adds clarity to the existing exceptions process under Goal 2 by Page 11 identifying a particular situation necessary to justify the exception. Rules establishing other reasons necessary to justify an exception can be found in OAR 660-004-0022. Examples of appropriate reasons necessary to justify exceptions to other goals include, but are not limited to: demonstrated need for use based on one or more of the goals; a use being significantly dependent on a unique resource; a use having special or unique qualities requiring a particular location; a use cannot [be] located in a UGB due to impacts that are hazardous or incompatible in densely populated areas; and a use has a significant comparative advantage due to its location." January 18, 2005 Report to LCDC on Agenda Item 5, February 2-4, 2005 LCDC Meeting, at 12. An "Overview and Line -by -Line Description of the Proposed Amendments to Goal 11 and OAR 660-011-0060 Regarding Sewer Service in Rural Areas" prepared for LCDC hearings on the proposed rule amendments in November 2004, described the proposed language that became OAR 660-011-0060(9): "This is new Section (9) being added in order to clarify that an exception may be taken for those situations where the standards under Goal 11 should not apply to a specific rural area. This section provides where it may be appropriate to apply the relevant criteria for a `reasons' exception in order to authorize the sewer service under certain conditions. "A `reasons' exception to Goal 11 may include that the new system or extension of service is necessary to avoid an imminent and significant public health hazard that would otherwise result if sewer service is not provided, and there is no practicable alternative to the sewer system in order to avoid the imminent public health hazard. The current rule requires that public health hazards have to be determined by the [DEQ] or Health Division to initially `exist in the area.' After the public health hazard determination is made, the local government has to amend its land use regulations consistent with the rule. Once that work is complete the sewer services may be extended into the rural area. Without changing the legal standards for exceptions, the proposed amendment identifies a situation where it would be appropriate to Page 12 1 LCDC did not intend subsections (9)(a) and (b) of the rule to establish the 2 closed universe of "appropriate reasons and facts" to justify a reasons 3 exception and that a reasons exception could be adopted if the criteria for 4 reasons exceptions in OAR 660-004-0020 and -0022 are met. 5 To the extent petitioner's second assignment of error takes the position 6 that "appropropriate reasons and facts" justifying a reasons exception to Goal 7 11 must fall under either OAR 660-011-0060(9)(a) or (b), we reject that 8 position. 9 In its second assignment of error, petitioner also argues that even if OAR 10 660-011-0060(9)(a) and (b) are merely examples of "appropriate reasons and 11 facts" for a Goal 11 exception: 12 "The County has essentially amended [OAR 660]-0060(9)(a) to 13 remove `imminent' and `public health hazard' with `inevitable' 14 and `public health issue.' * * * Where a rule provides very specific 15 and strict standards to be met and also utilizes the language of the 16 `include but are not limited to' those specific and strict standards, 17 it is not appropriate to undermine those specific and strict 18 standards by lessening those standards. Other `appropriate reasons 19 and facts' for a Goal 11 exception must be of a different kind from 20 what is specified. They cannot be a lesser standard of the same 21 thing in [OAR 660-011]-0060(9)(a)." Petition for Review 15-16. 22 We agree with petitioner that the "reasons and facts" that the county 23 relied on in this decision are not within the scope of "appropriate reasons and 24 facts for an exception to Goal 11" that are permissible under OAR 660 -004 - base an exception on documentation that sewer service would avoid a significant and imminent public health hazard before it can manifest itself." Overview, at 4-5. Page 13 1 0020 and OAR 660-011-0060(9), although not for precisely the reason 2 petitioner argues. In particular we do not agree that permissible "reasons and 3 facts" "must be of a different kind from what is specified" in OAR 660-011- 4 0060(9)(a) and (b), or that "[t]hey cannot be a lesser standard of the same thing 5 in [OAR 660-011]-0060(9)(a)." 6 As we have already explained, OAR 660-011-0060(9)(a) provides 7 "useful context for interpreting the general term[s]" "appropriate reasons and 8 facts," even though it does not set out the universe of acceptable reasons and 9 facts that could justify a Goal 11 exception. Schmidt, 347 Or at 402. The 10 context supplied by OAR 660-011-0060(9)(a) suggests far more than abstract 11 or speculative public health concerns are needed to warrant a Goal 11 12 exception to extend sewers into rural lands. It also is important to remember 13 that under one of the criteria for approving a reasons exception, the applicant is 14 required to demonstrate that "[r]easons justify why the state policy embodied in 15 the applicable goals should not apply[.]." ORS 197.732(2)(c)(A). An exception 16 must be "exceptional." 1000 Friends of Oregon v. LCDC, 69 Or App 717, 731, 17 688 P2d 103 (1984). 18 The reasons and facts that the county relied on to conclude a Goal 11 19 exception is warranted here are set out at Record 150-51. The differences 20 between the reasons and facts stated in OAR 660-011-0060(9)(a) and the 21 reasons and facts the county relied on in this case is expressed below as a 22 modification of OAR 660-011-0060(9)(a), with omitted language in brackets Page 14 1 and strikethrough and new language in bold and underlined, to assist in 2 comparing the reasons and facts that under OAR 660-011-0060(9)(a) may 3 justify an exception to Goal 11 to the reasons and facts the county actually 4 relied on: 5 "(a) The new system, or extension of an existing system, 6 [is] may be necessary to avoid an [imminent and 7 significant] inevitable public health [hazard] issue 8 that would otherwise result if the option of 9 providing sewer service is not [provided] available; 10 and, it is determined in the future that for some or 11 all of the areas included in the exception area there 12 is no practicable alternative to the sewer system in 13 order to avoid the [imminent] inevitable public health 14 [hazard] issues [.]" 15 If the record in this case established that the facts are that failure to 16 require sewers to serve existing lots and lots that will be developed in the 17 future within the exception area will result in an "inevitable" "public health 18 issue," specifically by making the aquifer used by thousands of people to 19 become contaminated so that it no longer meets federal drinking water 20 standards, we likely would agree that is an acceptable reason under OAR 660- 21 011-0060(9)(a) for a Goal 11 exception to extend the sewers. And the fact that 22 the public health concern is stated as an "issue" rather than a "hazard" and 23 stated as "inevitable" rather than "imminent," would not change that result 24 even if those different word choices result in a somewhat more permissive set 25 of reasons and fact than OAR 660-011-0060(9)(a). Again, OAR 660 -011 - Page 15 1 0060(9)(a) is context rather than a strictly limiting factor. Those differences 2 are not much of a departure from OAR 660-011-0060(9)(a). 3 The problem is that those are not the facts the county found. The county 4 has not found that it is necessary to extend sewers. It has found it may be 5 necessary if septic systems and Advanced Treatment Technology (ATT) 6 systems turn out to be inadequate. The exception gives the county permission 7 in advance to provide sewers to some, all, or none of 11,000 lots scattered over 8 180 square miles of rural property, depending on whether the county decides in 9 the future that sewers are the best solution to solve an inevitable public health 10 problem. Under the exception, as few as zero acres may be served by sewer, or 11 all 11,000 lots included in the entire 180 square miles may be served to address 12 the county's concerns about the aquifer. By any standard, that is a radical 13 departure from the example of an acceptable exception in OAR 660-011- 14 0060(9)(a). So radical that, given the context that OAR 660-011-0060(9)(a) 15 provides in determining whether those reasons and facts fall with 16 "[a]ppropriate reasons and facts for an exception to Goal 11," as used in 660- 17 011-0060(9), the county's reasons and facts do not qualify as "appropriate." To 18 be clear, it is the scope of the exception (11,000 lots), the area of the exception 19 (180 square miles), and the indefiniteness of the number and location of the 20 lots, if any, that will be connected to the sewer system that makes it improper. 21 We express no view here on whether there may be "[a]ppropriate reasons and Page 16 1 facts for an exception to Goal 11," within the meaning of OAR 660-011- 2 0060(9), for a more limited and certain exception. 3 Petitioner's second assignment of error is sustained. 4 FIRST AND THIRD ASSIGNMENTS OF ERROR 5 In its first assignment of error, petitioner argues that the county's 6 decision does not qualify as an "exception" within the meaning of the term set 7 out in ORS 197.732(1)(b)(A) because the county has not adequately explained 8 the "specific properties or situations" that the exception applies to, or even 9 identified with precision the amount of land or number of lots subject to the 10 exception. Rather, according to petitioner, the ordinance impermissibly 11 "establish[es] a planning or zoning policy of general applicability" that allows 12 sewer systems in order to facilitate residential development on rural lands in 13 the county. In its closely -related third assignment of error, petitioner argues 14 that the reasons for the Goal 11 exception set forth in the part of the county's 15 decision addressing OAR 660-004-0020(2)(a) are not based on facts and 16 assumptions that are supported by substantial evidence in the record, and do 17 not sufficiently explain why the state policy embodied in Goal 11 "should not 18 apply to specific properties or situations, including the amount of land for the 19 use being planned and why the use requires a location on resource land[.]" 20 In its response brief, the county takes the position that "[t]he challenged 21 legislative amendment is specific to identified and existing rural residential lots 22 (Rec. 8-26), and a specific situation, to wit, high groundwater and nitrates." Page 17 1 County's Response Brief 2. For the reasons that follow, we agree with 2 petitioner that the record does not support the county's description in its 3 response brief of: (1) the "specific properties" for which the exception is 4 approved, and (2) the specific "situation[]" that the exception was adopted to 5 address. 6 According to petitioner, the exception area includes approximately 7 11,000 improved and unimproved lots in the county, in an area covering 8 approximately 180 square miles. DEQ and the county do not dispute 9 petitioner's calculation of the number of lots or area included in the exception. 10 The decision includes 18 maps attached to the Ordinance that map the areas 11 that are included in the Goal 11 exception. The decision includes the following 12 description of the property that is depicted on the maps and subject to the 13 exception: 14 "The affected lands are either exception lands already; lands in 15 other categories that are adjacent to exception lands and have 16 existing residential settlement pattern and/or are surrounded by 17 public lands; lands in other categories that have an existing 18 residential settlement pattern and are surrounded by public lands." 19 Record 124. 20 The findings also describe the high groundwater area: 21 "The provided maps and written description of the affected area 22 with high groundwater, i.e. depth to groundwater is 24 inches or 23 less. A GIS analysis that included any lot with any amount of high 24 groundwater identified approximately 3,353 high groundwater lots 25 of which 2,153 are currently vacant. Of those vacant lots, 1,823 Page 18 1 are zoned either Rural Residential, 10 -acre minimum (RR -10) or 2 are split -zoned RR -10 and Flood Plain (FP)."7 Record 128-39. 3 The findings regarding the Transportation Planning Rule (TPR) at OAR 660- 4 012-0060 similarly describe the area studied for purposes of demonstrating 5 compliance with the TPR as 6 "[a]ny vacant lot that GIS research indicated had high groundwater 7 was considered a red lot, regardless if the high groundwater area 8 consisted of 1% or 100% of the lot. This identified 1,823 vacant 9 lots as red lots[.]"8 Record 153. 7 Other findings describe "75 percent of the approximately 14,000 properties in the area [that are] two acres or less." Record 151. Still other findings describe "15,000 lots of one-half to one acre in size [that] were platted prior to enactment of Oregon's land use planning laws * * * these lots are located within a corridor near the scenic Deschutes River and the Little Deschutes River. Subdivision developers marketed these lots nationally with no promise of infrastructure improvements and without an understanding of the region's high water table or the aquifer's vulnerability. Currently, there are approximately 7,000 improved lots in the La Pine region study area [that] use conventional onsite systems and individually owned drinking water wells. Most of these wells draw from the most vulnerable upper 100 feet of the aquifer." Record 124. The decision also describes the exception area as including "all existing platted lots and other lands necessary for community water supply and wastewater treatment infrastructure. No upzoning or increases of development densities other than allowed by current zoning shall occur within the Goal 11 exception area." Record 141 (emphasis added). 8 According to the transportation study, the county considers these 1,823 lots to be undevelopable due to the depth to groundwater of 24 inches or less. Record 954. Page 19 1 Nothing in the county's decision, or on the maps attached to the 2 decision, or on any map in the record precisely identifies (1) the amount of land 3 included, (2) the number of lots included, (3) whether the lots are developed or 4 undeveloped, (4) the zoning of the lots, or (5) the groundwater levels of each 5 lot or mapped area. From the findings we observe that the GIS study identified 6 not 11,000, but rather 3,353 high groundwater lots, with 2,153 vacant, resulting 7 in 1,200 high groundwater lots that are already developed. There is no map in 8 the record that we can decipher that shows the location of those developed and 9 vacant high groundwater lots. The figure at Record 955 is at such a small scale 10 that it is impossible to locate the lots that are supposed to be depicted. The map 11 at Record 783 shows the general areas where the lots are located, but does not 12 permit identification of individual lots. We also observe that the GIS study 13 identified 1,823 of those lots identified as vacant that are zoned RR-10 or RR- 14 10/FP, but there is no identification of the zoning of the other 330 high 15 groundwater lots that are apparently not zoned RR-10 or RR-10/FP. 16 OAR 660-004-0020(2)(a) is set out in full at n 11. The section of the 17 findings that addresses OAR 660-004-0020(2)(a) includes the following 18 description of the "use being planned:" 19 "* * *This situation is unique because the facility being authorized 20 is necessary to support the proposed use by improving the basin's 21 groundwater quality over time. The subject lands are planned and 22 zoned to receive residential development. Failing to authorize 23 sewer service will eventually create unacceptable levels of 24 contamination in the groundwater and place citizens at risk of 25 health concerns. Page 20 1 "Based on this explanation the 'use being planned' is existing 2 homes and some new households on lands planned and zoned for 3 residential development. The proposed facilities would be sewer 4 service that is not otherwise available under Goal 11. The ultimate 5 outcome will be cleaner groundwater that will remain available as 6 a source of drinking water for area residents and not pose a threat 7 to contaminate nearby surface water." Record 138 (emphases 8 added). 9 Those findings are followed by two pages of text under the heading "Reasons" 10 that describe the porous, sandy nature of the soils in the 247 square mile study 11 area with no protective intervening layer, and the shallow depth of the aquifers 12 from the surface, ranging from 2 feet to 100 feet deep; past incidences in the 13 1980's of groundwater contamination in the city of La Pine; and studies and 14 models that predict groundwater contamination increasing after assumed "full 15 build out" in 2019, until in 140 years over 9,000 acres could have groundwater 16 concentrations exceeding the federal standards. Record 139-40. The exception 17 is described in those findings as necessary "to allow a broader range of options 18 for domestic wastewater treatment and disposal."9 Record 140. 19 It appears that the county is attempting to address two problems with the 20 exception, a potential existing problem and a potential future problem. The first 21 problem is, in the words of the county, an "inevitable" groundwater 9 Another option discussed in the findings is to require conversion of traditional septic systems to ATT systems that possess nitrogen reducing capability. However, the county concluded that ATT systems will not address what the county characterizes as the "long term problem" and they do not "offer the best level of groundwater protection for the area as a whole." Record 140. Page 21 1 contamination problem caused by existing residential development on 1,200 2 high groundwater lots with porous soils, which are served by on-site septic 3 systems. That existing problem could be made worse by development of 1,853 4 currently vacant lots zoned RR-10 and RR-10/FP in the high groundwater area 5 with porous soils, and by assumed development of an additional 330 lots with 6 similar circumstances whose zoning is not identified. The county's findings 7 that sewers may be needed to address this possible problem appear to be 8 supported by evidence in the record (except that as noted, it is simply not 9 possible to discern the location of those high groundwater lots from the maps 10 included in the record.) 11 There is an obvious flaw in the county's solution (an exception to Goal 12 11 to provide the option of sewer service to 11,000 lots) to solve the identified 13 problem (1,200 high ground water lots with septic tanks and 2,183 14 undeveloped high ground water lots that either threaten or pose a threat to 15 shallow aquifers if developed with septic tanks). The county's decision does 16 not explain or give a reason why the 7,697 lots that apparently are not located 17 in high ground water areas and therefore do not pose a threat to shallow 18 aquifers if developed with septic tanks are included in the exception area. The 19 county's decision also appears to be much closer to a "planning or zoning 20 policy of general applicability" to the southern part of the county than an 21 "exception" as defined in ORS 197.732(1)(b). For example, the findings 22 explain: Page 22 1 "An area -wide Goal 11 exception would allow for the highest and 2 best level of wastewater control and is necessary to protect public 3 health in the area. The area requires a regional solution to what is 4 truly an area -wide problem, one with increasing risks the longer a 5 set of comprehensive solutions is not in place. Up to this point, 6 public agencies including DEQ have looked at individual property 7 risk on a site by site basis. This strategy will fail because it 8 prohibits greater regional planning and infrastructure to address a 9 significant and regional health risk." Record 151. 10 In our view, the county must distinguish between (1) the 3,353 high 11 groundwater lots that are either already developed with houses or that are 12 vacant but could be developed with houses, for which there appears to be a 13 reason that might support an exception to protect the groundwater, and (2) the 14 areas that it is proposing to serve with sewers in order to more easily allow 15 future houses on rural lands, but that the record does not demonstrate are 16 located in high groundwater areas. The current record and findings do not 17 support the county's approach in lumping those diverse circumstances together 18 into a single reasons exception. 19 Stated differently, the county's apparent desire to facilitate maximum 20 residential development on rural lands in the county is not a sufficient reason to 21 include an additional 7,697 lots that are not high groundwater lots, without 22 identifying the specific reasons that apply to those additional lots that justifies 23 the exception. OAR 660-004-0020(2)(a). Absent a more focused explanation 24 and identification by the county of the approximately 7,697 properties that are 25 not part of the 3,353 high groundwater lots, but are included in the exception 26 area, and the specific situation that the exception for the additional lots seeks to Page 23 1 address, we agree with petitioner that the exception more closely resembles a 2 "planning or zoning policy of general applicability" for the southern portion of 3 the county than an "exception" as defined in ORS 197.732(1)(b). 4 We also agree with petitioner that the exception does not include 5 adequate findings explaining why OAR 660-004-0020(2)(a) is met. See n 11. 6 We list a few of the inadequacies here. First, the county needs to explain what 7 it means in the findings quoted above by "lands that are planned and zoned for 8 residential development." If the county means to include lands in zoning 9 categories that are something other than RR -10 or RR-10/FP, as it apparently 10 has, then the county's assumption that those lands are "planned and zoned for 11 residential development" and will develop with houses needs a better 12 explanation. Conversely, if the county intends to only include lands that are 13 zoned RR -10 or RR -10 and Floodplain, then the county appears to have 14 included a significant amount of land in other zoning categories. 15 Second, the county also needs to explain the basis for its apparent 16 assumption that all one-half to two -acre lots in the county, which the USGS 17 study counts as about 60% of the included lots, that were platted prior to the 18 enactment of county or state zoning laws are individually developable because 19 the county has "planned and zoned" the lots for residential uses, particularly Page 24 1 considering Goal 14 and the Goal 14 rules regarding urbanization and 2 density.10 3 Third, and most importantly, the county needs to explain how sewer 4 service that the county describes as "necessary to guard against unacceptable 5 levels of pollution in the area's groundwater that would expose citizens to 6 health risks" will correct the problem when connection to the sewer system is 7 entirely optional. Record 142 (emphasis added). As noted earlier, ORS 10 We see at least two potential ways that Goal 14 could be relevant here. First, as we understand the facts, a majority of the included lots are zoned RR - 10, which requires a l0 -acre minimum lot size, even though many or most of those lots are between one-half and one acre in size. It is not clear from the record whether the county considered Goal 14 or the Goal 14 rule's restrictions on urban -level density in rural areas in initially zoning those lots RR -10, or whether the county determined that it was unnecessary to consider Goal 14 and the urbanization rules because as a practical matter those lots would be required to be aggregated or would be unable to develop at urban levels of density due to septic limitations. If the county now takes an exception to Goal 11 to allow sewers to serve those one-half to one acre lots, then the direct consequence of that action will be that those lots may be able to develop at urban -level densities with urban levels of service. Stated differently, if the Goal 11 exception changes the only circumstances that currently prevent urban -level development on these rural lands, the county may be required to consider whether the Goal 11 exception will lead to urban levels of development and whether the exception is consistent with Goal 14. Second, from the maps attached to the Ordinance, it appears that several of the lots that are adjacent to previously platted subdivisions may be future phases of previously platted subdivisions. Record 104-119. Analysis of potential development of those future phases of previously platted subdivisions to determine whether the existence of urban levels of public facilities makes development of those lots at urban level densities possible may also be required. Page 25 1 197.732(1)(b)(A) expressly states that an exception is not appropriately used to 2 "establish a planning or zoning policy of general applicability." An exception 3 to allow sewer systems that are entirely optional seems much more like a 4 planning policy of general applicability than an exception. 5 For the above reasons, remand is required in order for the county to 6 more precisely identify the specific properties and the specific reasons that 7 apply to those properties that justify a Goal 11 exception for those properties. 8 FOURTH ASSIGNMENT OF ERROR 9 In the fourth assignment of error, petitioner argues that the county's 10 findings regarding OAR 660-004-0020(2)(b), (c), and (d) are inadequate.11 11 OAR 660-004-0020(2) provides, in relevant part: "The four standards in Goal 2 Part II(c) required to be addressed when taking an exception to a Goal are described in subsections (a) through (d) of this section, including general requirements applicable to each of the factors: "(a) `Reasons justify why the state policy embodied in the applicable goals should not apply.' The exception shall set forth the facts and assumptions used as the basis for determining that a state policy embodied in a goal should not apply to specific properties or situations, including the amount of land for the use being planned and why the use requires a location on resource land; "(b) `Areas which do not require a new exception cannot reasonably accommodate the use.' The exception must meet the following requirements: "(A) The exception shall indicate on a map or otherwise describe the location of possible alternative areas Page 26 considered for the use that do not require a new exception. The area for which the exception is taken shall be identified; "(B) To show why the particular site is justified, it is necessary to discuss why other areas that do not require a new exception cannot reasonably accommodate the proposed use. Economic factors can be considered along with other relevant factors in determining that the use cannot reasonably be accommodated in other areas. Under this test the following questions shall be addressed: "(i) Can the proposed use be reasonably accommodated on nonresource land that would not require an exception, including increasing the density of uses on nonresource land? If not, why not? "(ii) Can the proposed use be reasonably accommodated on resource land that is already irrevocably committed to nonresource uses not allowed by the applicable Goal, including resource land in existing unincorporated communities, or by increasing the density of uses on committed lands? If not, why not? "(iii) Can the proposed use be reasonably accommodated inside an urban growth boundary? If not, why not? "(iv) Can the proposed use be reasonably accommodated without the provision of a proposed public facility or service? If not, why not? Page 27 1 OAR 660-004-0020(2)(a) through (d) require analysis of the "use" or the 2 "proposed use." OAR 660-004-0020(2)(b) through (d) require an assessment of 3 "alternative areas" that could accommodate "the proposed use;" an analysis of 4 the long term environmental, social, economic, and energy (ESEE) 5 consequences resulting from the proposed use and comparing the "proposed "(c) 'The long-term environmental, economic, social and energy consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in other areas requiring a goal exception other than the proposed site.' The exception shall describe: the characteristics of each alternative area considered by the jurisdiction for which an exception might be taken, the typical advantages and disadvantages of using the area for a use not allowed by the goal, and the typical positive and negative consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts. * * * The exception shall include the reasons why the consequences of the use at the chosen site are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the proposed site. Such reasons shall include but are not limited to a description of the facts used to determine which resource land is least productive, the ability to sustain resource uses near the proposed use, and the long-term economic impact on the general area caused by irreversible removal of the land from the resource base. Other possible impacts to be addressed include the effects of the proposed use on the water table, on the costs of improving roads and on the costs to special service districts; "(d) 'The proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts.' * * *." Page 28 1 site" with alternative sites; and an analysis of whether the "proposed uses" are 2 or can be made compatible with adjacent uses.12 3 The county found that the "use" is "existing homes and some new 4 households on lands being planned and zoned for residential development." 5 Record 138. The lands are described as "exception lands already; lands in other 6 categories that are adjacent to exception lands and have existing residential 7 settlement pattern and/or are surrounded by public lands; lands in other 8 categories that have an existing residential settlement pattern and are 9 surrounded by public lands." Record 124. The county also found that the use 10 cannot be accommodated inside an urban growth boundary because the lots to 11 be served by sewers are located in unincorporated areas of the county, so using 12 Todd v. City of Florence, 52 Or LUBA 445 (2006), is a case involving a reasons exception to Goal 11 to extend city sewer lines to property outside of the city. In Todd, we observed about the then -applicable version of OAR 660- 004-0020(2): "[It is] awkward, at least, to apply the criteria in OAR 660-004- 0020(2)(b) (d) to evaluate a `proposed use' that does not require a goal exception. * * * Those criteria are obviously written to address the more typical case, where the `proposed use' requires a Goal 3, 4 or 14 exception, in addition to any exception required to establish or extend public services to serve those uses." Id. at 456. In 2011, LCDC adopted amendments to OAR 660-004-0000 that clarify that the standards in OAR 660-004 apply to all goal exceptions, including a reasons exception pursuant to OAR 660-011-0060(9) and even where the proposed use itself does not require a Goal exception. OAR 660-004-0000(1). Therefore, however awkward the provisions of OAR 660-004-0020 are to apply, they apply to this exception. Page 29 1 a different area is not possible. Record 140-41. The county additionally found 2 under OAR 660-004-0020(2)(b)(B)(iv) that "the proposed use [cannot] be 3 reasonably accommodated without the provision of the proposed public 4 facility" because "sewer service is necessary to guard against unacceptable 5 levels of pollution in the area's groundwater that would expose citizens to 6 health risks." Record 142. 7 Petitioner argues that the county misconstrued OAR 660-004-0020(2)(b) 8 through (d) and that the county's findings regarding those criteria are 9 inadequate. According to petitioner (1) the county impermissibly combined 10 existing residential uses with proposed residential uses that the availability of 11 sewers would facilitate, without explaining whether an additional goal 12 exception is required for any of the proposed residential uses; (2) the county 13 failed to evaluate whether alternative areas such as expanding existing UGBs, 14 or alternative treatment methods such as ATT systems, could accommodate the 15 proposed residential without providing sewer systems; (3) the county failed to 16 conduct an ESEE assessment of alternative sites, including the economic 17 consequences of serving approximately 11,000 lots with sewers; and (4) the 18 county failed to address the compatibility of the proposed residential uses with 19 adjacent resource uses. 20 As explained in our resolution of the first and third assignments of error, 21 the county's findings must first identify the reason or reasons for including 22 7,697 lots that are not high groundwater lots in the exception area. The Page 30 1 county's findings addressing subsections (2)(b) through (d) of the rule must 2 then, based on those reasons, address or categorize the proposed residential 3 development on similar and differently situated lots, particularly given that 4 some of the lots are as large as or larger than 10 acres and some are resource- 5 zoned. The findings must also identify the amount and location of the "other 6 lands necessary for community water supply and wastewater treatment 7 infrastructure" that are included in the exception area, particularly if those 8 lands are resource-zoned lands. Record 141, 144. We also agree with petitioner 9 that the county's findings regarding subsection (b)(B)(iv) do not adequately 10 explain why the proposed residential uses cannot be reasonably accommodated 11 without the provision of sewer service, where the exception makes connection 12 to the sewer system optional and thus apparently anticipates and approves of 13 the continued use of traditional and non-traditional septic systems. 14 Finally, one of the difficulties in evaluating how the county applied OAR 15 660-004-0020(2)(b), (c) and (d) is the unclear nature of precisely what the 16 county proposes to do under the exception. If the exception was actually 17 limited to an exception to provide sewer service to specific properties to avoid 18 the public health ramifications of allowing existing or future individual septic 19 systems to make a drinking water aquifer unfit for that purpose, then 20 application of OAR 660-004-0020(2)(b), (c) and (d) would be more 21 straightforward. OAR 660-004-0020(2)(b) and (c) would be satisfied or 22 inapplicable, because providing sewers in other areas would not address the Page 31 1 reason for the exception. And application of OAR 660-004-0020(2)(d) would 2 be more manageable, because the location of the sewers, and the new 3 development it would enable would be identified. 4 The fourth assignment of error is sustained. 5 FIFTH ASSIGNMENT OF ERROR 6 In its fifth assignment of error, petitioner argues that the county's 7 amendments to the DCCP are inconsistent with DCCP Policy 2.5.19(b), which 8 provides: 9 "If a public health hazard is declared in rural Deschutes County, 10 expedite actions such as legislative amendments allowing sewers 11 or other similar infrastructure." 12 Petitioner argues that because no public health hazard was declared, Policy 13 2.5.19(b) does not allow the county to expedite its legislative amendments 14 allowing sewers on rural lands in the county. 15 DEQ responds, and we agree, that petitioner has not demonstrated that 16 the county's decision to adopt amendments to the comprehensive plan to allow 17 sewers is inconsistent with DCCP Policy 2.5.19(b), which is a part of the 18 chapter addressing water resource policies and provides that one of the 19 county's water resource policies is to: 20 "Coordinate with stakeholders to address water -related public 21 health issues. 22 "a. Support amendments to State regulations to permit 23 centralized sewer systems in areas with high levels of 24 existing or potential development or identified water quality 25 concerns. Page 32 1 "b. If a public health hazard is declared in rural Deschutes 2 County, expedite actions such as legislative amendments 3 allowing sewers or similar infrastructure." 4 Goal 5 of Section 2.5 of the DCCP is "protect and improve water quality in the 5 Deschutes River Basin." Policy 2.5.19(b) implements Section 2.5's goal by 6 allowing the county to expedite legislative amendments allowing sewers if a 7 public health hazard is declared, presumably under OAR 660-011-0060(4). The 8 county did not rely on OAR 660-011-0060(4) to support its reasons exception; 9 rather, as discussed above, it relied on OAR 660-011-0060(9). Accordingly, 10 Policy 2.5.19(b) does not apply and there is nothing about the county's 11 decision that is inconsistent with Policy 2.5.19(b). In addition, petitioner does 12 not argue that the county relied on the policy to "expedite" the amendments to 13 the comprehensive plan and reasons exception. 14 The fifth assignment of error is denied. 15 The county's decision is remanded. Page 33 -1- E o { Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of April 26. 2017 DATE: April 11, 2017 FROM: Peter Russell, Community Development, 541-383-6718 TITLE OF AGENDA ITEM: LUBA Remand of Goal 11 Exception for South Deschutes County PUBLIC HEARING ON THIS DATE?: No ATTENDANCE: Nick Lelack and Peter Russell, CDD, Eric Nigg, Dept. of Environmental Quality (DEQ). SUMMARY: LUBA issued a remand on Nov. 1, 2016, regarding the Board's approval of a Goal 11 Exception for southern Deschutes County. LUBA has a 180 -day deadline to hold the remand hearing, which expires on May 1. The Board can request a 180 -day extension or let the LUBA remand stand. RECOMMENDATION & ACTION REQUESTED: Staff seeks Board decision on whether to seek an extension to hold a remand hearing on Goal 11 Exception (Public Facilities and Services) for southern Deschutes County.