2017-683-Minutes for Meeting September 25,2017 Recorded 10/16/2017Recorded in Deschutes County CJ2017-683
Nancy Blankenship, County Clerk
Commissioners' Journal 10/17/2017 11:48:53 AM
IIIIIIIIIIIIIIIIIIIIIIII26111u
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 BUSINESS MEETING
DESCHUTES COUNTY BOARD OF COMMISSIONERS
Monday, September 25, 2017
Commissioners' Hearing Room — Administration Building — 1300 NW Wall St., Bend
Present were Commissioners Tammy Baney, Phil Henderson and Anthony DeBone. Also present
were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David
Doyle, County Counsel; and Sharon Ross, Board Executive Secretary. One representative of the
media were in attendance.
CALL TO ORDER: Chair Baney called the meeting to order at 10:03 a.m.
PLEDGE OF ALLEGIANCE
CITIZEN INPUT: None was offered.
CONSENT AGENDA: Before the Board was Consideration of Approval of the Consent
Agenda.
Minutes of Board of Commissioners' Business Meeting September 25, 2017
Page 1 of 4
HENDERSON: Move approval of Consent Agenda Items #2 and #3
DEBONE: Second.
VOTE: HENDERSON: Yes.
DEBONE: Yes.
BANEY: Chair votes yes. Motion Carried
Consent Agenda Items:
1. Consideration of Signature of Document No. 2017-436, Special Transportation Fund
Grant Agreement with Central Oregon Intergovernmental Council
2. Consideration of Signature of Document No. 2017-621, State of Oregon Department of
Corrections IGA #5457 for Grant in Aid
3. Consideration of Signature of Document No. 2017-622, State of Oregon Department of
Corrections IGA #5535 for Family Sentencing Alternative Pilot (FSAP) Program Grant
ACTION ITEMS
Consent Agenda Item #1 as pulled for discussion: Consideration of Signature of Document
No. 2017-436, Special Transportation Fund Grant Agreement with Central Oregon
Intergovernmental Council
Judith Ure, Management Analyst presented this item for consideration of the special
transportation fund award for COIC. The funding is primarily used to support transportation
services for the elderly and disabled. The match for public transit is approximately 10%.
Discussion held on the routes and services for the community.
DEBONE: Move approval
HENDERSON: Second
VOTE: DEBONE: Yes
HENDERSON: Yes
BANEY: Chair votes yes. Motion Carried
Minutes of Board of Commissioners' Business Meeting September 25, 2017
Page 2 of 4
4. Consideration of Signature of Order No. 2017-038, Lot of Record Text Amendments
and Consideration to Reopen Hearing.
Peter Gutowsky, Community Development Department and Adam Smith, Assistant
County Legal Counsel provided a brief recap of the public hearing process for this
matter. The first public hearing before the Planning Commission was held on August
24th. There were no oppositions and the hearing was closed and was brought to the Board
of Commissioners on September 20th. There was last minute testimony from Central
Oregon Landwatch. An order was prepared to consider reopening the record for written
testimony. On Friday a meeting was held and Central Oregon Landwatch noted their
support of the lot of record amendments that were drafted in June. The packet was
modified to introduce a second potential order to recommend directing staff to prepare an
order for the afternoon's work session to reopen to October 16th and a hearing would be
scheduled. Chair Baney spoke on the process and her disappointment of the lack of
process with this agency by not participating in the normal process.
Commissioner Henderson is in favor of the delay giving more time to review and hopes
for a comprehensive process. Commissioner DeBone recalled history of issues and the
reasons why we are working toward clarity in land use.
Discussion held on opening both the oral and written record though this is not the
standard course.
HENDERSON: Move approval of preparation of Board Order to continue the
hearing
DEBONE: Second
VOTE: HENDERSON: Yes
DEBONE: Yes
BANEY: Chair votes yes. Motion Carried
CONVENE AS THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT
5. Before the Board was Consideration of Signature for a Letter of Appointment to
Bob Nelson to the Sunriver Service District Budget Committee for a term through
August 31, 2020
DEBONE: Move approval
HENDERSON: Second
VOTE: DEBONE: Yes
HENDERSON: Yes
BANEY: Chair votes yes. Motion Carried
Minutes of Board of Commissioners' Business Meeting September 25, 2017
Page 3 of 4
6. Before the Board was Consideration of Signature for a Letter thanking Mike Gocke
for his service on the Sunriver Service District Budget Committee
DEBONE: Move approval
HENDERSON: Second
VOTE: DEBONE: Yes
HENDERSON: Yes
BANEY: Chair votes yes. Motion Carried
OTHER ITEMS: None were offered.
ADJOURN
Being no further items to come before the Board, the meeting was adjourned at 10:40 a.m.
I �
DATED this ` I Day of
County Board of Commissioners.
ATTE T:
ecor. ing Secretary
2017 for the Deschutes
Tammy Baney, Chair
Philip G. Henderson, Commissioner
Minutes of Board of Commissioners' Business Meeting September 25, 2017
Page 4 of 4
CES
O
w
0
c Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/
BUSINESS MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
10:00 AM, MONDAY, SEPTEMBER 25, 2017
Barnes and Sawyer Rooms - Deschutes Services Center — 1300 NW Wall Street — Bend
Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be considered or
discussed at the meeting. This notice does not limit the ability of the Board to address additional subjects.
Meetings are subject to cancellation without notice. This meeting is open to the public and interested citizens are
invited to attend. Business Meetings are usually recorded on video and audio, and can be viewed by the public
live or at a later date; and written minutes are taken for the record.
CALL TO ORDER
PLEDGE OF ALLEGIANCE
CITIZEN INPUT
This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues
that are not already on the agenda. Please complete a sign-up card (provided), and give the card to the
Recording Secretary. Use the microphone and clearly state your name when the Board Chair calls on you to
speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing not
being conducted as a part of this meeting will NOT be included in the official record of that hearing.
If you offer or display to the Board any written documents, photographs or other printed matter as part of your
testimony during a public hearing, please be advised that staff is required to retain those documents as part of the
permanent record of that hearing.
CONSENT AGENDA
1 Consideration of Signature of Document No. 2017-436, Special Transportation Fund
Grant Agreement with Central Oregon Intergovernmental Council
2 Consideration of Signature of Document No. 2017-621, State of Oregon Department of
Corrections IGA #5457 for Grant in Aid
3. Consideration of Signature of Document No. 2017-622, State of Oregon Department of
Corrections IGA #5535 for Family Sentencing Alternative Pilot (FSAP) Program Grant
Board of Commissioners Business Meeting Agenda
of 3
Monday, September 25, 2017 Page 1
ACTION ITEMS
4. Consideration of Signature of Order No. 2017-038, Lot of Record Text Amendments /
Reopen Hearing - Peter Gutowsky, Planning Manager
CONVENE AS THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT
1. Consideration of Signature for a Letter of Appointment to Bob Nelson to the
Sunriver Service District Budget Committee for a term through August 31, 2020
2. Consideration of Signature for a Letter thanking Mike Gocke for his service on
the Sunriver Service District Budget Committee
OTHER ITEMS
These can be any items not included on the agenda that the Commissioners wish to discuss as part of
the meeting, pursuant to ORS 192.640.
At any time during the meeting, an executive session could be called to address issues relating to ORS
192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor
negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories.
Executive sessions are closed to the public; however, with few exceptions and under specific
guidelines, are open to the media.
ADJOURN
To watch this meeting on line, go to: www.deschutes.orq/meetings
Please note that the video will not show up until recording begins. You can also view past
meetings on video by selecting the date shown on the website calendar.
Board of Commissioners Business Meeting Agenda
of 3
Monday, September 25, 2017 Page 2
10113Deschutes 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/meetinqcalendar
(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 Business Meeting Agenda
of 3
Monday, September 25, 2017 Page 3
-< 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 Business Meeting of September 25, 2017
DATE: September 21, 2017
FROM: Peter Gutowsky, Community Development, 541-385-1709
TITLE OF AGENDA ITEM:
Consideration of Signature of Order No. 2017-038, Lot of Record Text Amendments / Reopen
Hearing
PUBLIC HEARING ON THIS DATE?: No
ATTENDANCE: Peter Gutowsky, AICP, Planning Manager
RECOMMENDATION & ACTION REQUESTED:
Based on written testimony submitted by Carol Macbeth, Central Oregon Landwatch (COLW),
and Liz Fancher, the Board of County Commissioners (Board) may want to consider an order
reopening the record. Two options for consideration are:
Issue Order 2017-038 to reopen the written record for the Lot of Record Text
Amendments, 247 -17 -000596 -TA, through October 13, 2017 at 5:00 p.m. The Board will
conduct initial deliberations on October 23, 2017 at 10:00 a.m.
Direct staff to return with a new order at Monday's September 25 work session to
reopen the oral and written record for the Lot of Record Text Amendments to October
16, 2017. The Board would conduct a second public hearing on that date at 10:00 a.m.
Community Development Department
Planning Division Building Safety Division Environmental Sods Division
P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005
Phone: (541) 388-6575 Fax: (541) 385-1764
http://www.deschutes.org/cd
MEMORANDUM
TO: Deschutes County Board of County Commissioners
FROM: Peter Gutowsky, AICP, Planning Manager
DATE: September 21, 2017
SUBJECT: Lot of Record Text Amendments / Order 2017-038 / Reopening Written Record
Based on written testimony submitted by Carol Macbeth, Central Oregon Landwatch (COLW), and Liz
Fancher, the Board of County Commissioners (Board) may want to consider an order reopening the
record. Two options for consideration are:
• Issue Order 2017-038 to reopen the written record for the Lot of Record Text Amendments, 247-
17 -000596 -TA, through October 13, 2017 at 5:00 p.m. The Board will conduct initial deliberations
on October 23, 2017 at 10:00 a.m. (attached).
• Direct staff to return with a new order at Monday's September 25 work session to reopen the oral
and written record for the Lot of Record Text Amendments to October 16, 2017. The Board would
conduct a second public hearing on that date at 10:00 a.m.
I. BACKGROUND
The Deschutes County Planning Commission conducted a public hearing on August 24, 2017 to take
testimony on Lot of Record Text Amendments and upon receiving no opposition, closed the hearing,
deliberated, and forwarded to the Board a recommendation of approval. The Board held a public hearing
on September 20, 2017, closed the oral record and left the written open until Friday, September 22, at
12:00 p.m. COLW submitted written testimony that requires analysis, consideration, and an opportunity
for response from Deschutes County and members of the public.
Pursuant to Deschutes County Code (DCC) 22.24.160, the Board may at its discretion reopen the record
on its own initiative. If the Board issues an order, those parties who participated at either the Planning
Commission or Board public hearing will receive written notice that the written (or possibly oral) record
is reopened until a date certain to allow additional written (or possibly oral) evidence/testimony.
II. WRITTEN TESTIMONY
Carol Macbeth and Liz Fancher were the only persons to submit written testimony since Wednesday's
public hearing through noon Friday. Ms. Macbeth's new testimony now states COLW's support for an
early version of the Lot of Record Text Amendments, 247 -17 -000518 -TA, that were subsequently
Quality Service's Perjvrined with Pride
withdrawn on July 17, 2017 due to the Board's preference to develop a comprehensive amendment. Ms.
Fancher's remarks responds to Macbeth's initial September 20, 2017 testimony.
Staff also included the following five documents which informed the drafting of the lot of record text
amendments:
• O'Neil: 1994 Board decision discussing background of lot of record definition in County code,
formally recognizing the estoppel policy relating to previously issued building and septic
permits, and recognizing that federal land conveyance can create lots of record.
• Thompson: 2008 Hearings Officer (HO) decision contemplating federal land conveyances.
• Pine Forest: 2016 HO decision contemplating federal land conveyances and deviating from
Thompson.
• Tumalo Irrigation District (TID): 2017 Land Use Board of Appeals (LUBA) decision discussing the
County's lot of record definition, upholding the County's interpretation that a deed describing
multiple units of land does not necessarily vacate intervening property lines, and upholding
County's interpretation allowing for remainder parcels to be created by deed.
• Brodersen: 2010 LUBA decision interpreting state statutes and case law dictating when a local
government must verify that a lot or parcel was lawfully created prior to issuing certain land use
permits.
Attachments
1. Order 2017-038
2. Carol Macbeth, Central Oregon LandWatch, testimony
3. Liz Fancher testimony
4. Staff submittals
o O'Neil
o Thompson
o Pine Forest
o TID
o Brodersen
-2-
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Reopening the Public Hearing for
Written Testimony for Lot of Record Text
Amendments, 247 -17 -000596 -TA
*
*
*
ORDER NO. 2017-038
WHEREAS, the Deschutes County Planning Commission conducted a duly noticed public hearing on
August 24, 2017 to take testimony on Lot of Record Text Amendments, 247 -17 -000596 -TA and upon receiving
no opposition, closed the hearing, deliberated, and forwarded to the Deschutes County Board of Commissioners
(Board) a recommendation of approval; and
WHEREAS, the Board held a duly noticed public hearing on September 20, 2017 to take testimony on
Lot of Record Text Amendments, 247 -17 -000596 -TA; and
WHEREAS, Central Oregon Landwatch provided a last-minute submittal on September 20, 2017 that
requires additional analysis and feedback from Deschutes County and members of the public who have
participated in the public process; and
WHEREAS, the Board wishes to allow additional written evidence/testimony on the Lot of Record Text
Amendments, 247 -17 -000596 -TA; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. The Board hereby reopens the written record pursuant to Deschutes County Code (DCC)
22.24.160, of the lot of record text amendments, 247 -17 -000596 -TA through October 13, 2017 at 5:00 p.m.
Section 2. The Board will conduct initial deliberations on October 23, 2017 at 10:00 a.m.
PAGE 1 OF 2 - ORDER NO. 2017- 038
Dated this of , 2017 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
TAMMY BANEY, Chair
ANTHONY DEBONE, Vice Chair
Recording Secretary PHILIP G. HENDERSON, Commissioner
PAGE 2 OF 2 - ORDER No. 2017- 038
-ENTRA () EGO
LAN D WATC H
September 22, 2017
hand delivered
Deschutes County Board of Commissioners
117 NW Lafayette Ave.
Bend, OR 97701
50 SW 13onei St., Ste. 4 I Lend, «)k 9/7O2
WWW <el1.NWiwatc h.orq
S:Q222U17
re: Lot of Record text amendments
Dear Commissioners,
As we have previously expressed, LandWatch is supportive of the Board's adopting
provisions that simplify and clarify the lot of record process for those who hold certain permits.
These are the people who had difficulty following the Grimstad decision. The draft provisions
that we now believe best address those issues were presented at a work session to the planning
commission on July 13, 2017:
"DCC 18.04.030: Lot of Record means:
B. Notwithstanding subsection (A), a lot or parcel that previously received a land
use permit as defined in DCC 22.04.020, or a County building or septic permit, or
validated pursuant to ORS 92.176 shall be recognized as equivalent to a lot of
record for the purposes of DCC Title 18.
C. The following shall not be deemed to be a lot of record:
3. A lot or parcel created by an unrecorded subdivision, unless the lot or
parcel was conveyed subject to sub -section A(3) above DCC
-1-810470-30(a).
What LandWatch opposes with the current proposed changes that were the subject of
the Wednesday hearing, as opposed to the above language, is that they go far beyond the original
purpose of addressing the "post Grimstad" issues. The changes are also quite radical, such as no
longer using the term "lot of record" and creating a new term of "unit of land."
Not only is the purpose for all these proposed changes not adequately explained, but such
a substantial revision of the code could have a host of unintended consequences. What is the
effect, for example, of using "unit of land" because, as explained in Staff materials, "it is
distinguishable from other terms commonly used in state statute"? It seems it might be better to
be consistent with use of terminology in state statutes. The terms "lot" and "parcel" are found
2
throughout the county code and are terminology people are used to. What effects will the
proposed changes in their definitions have throughout the code? Moreover some of the new
definitions of terms are not clear, such as this sentence in the definition of "lot":
"If a code provision that uses the term 'lot' requires distinguishing how a unit of land was
created, 'lot' in that context means a unit of land created by a subdivision of land."
What is an example of that, and what is meant by "distinguishing," or distinguishing
between what?
Attached are copies of the proposed July 13th text amendment (Ex. A), and excerpts of
the current proposal (Ex. B), to show what is required in order to address the "post Grimstad"
issues, as opposed to the sweeping changes in the current proposal. We recommend that
adoption of the simpler language to address the "post Grimstad" issues, as an emergency
measure, is far preferable to connecting it to much broader changes whose purpose is not clear,
and which apparently differ so much from state law and the codes of other jurisdictions.
Finally, I want to apologize for any confusion at the hearing as to our participation at
the planning commission. I testified at a hearing earlier in the summer on appeals fees in which
lot of record appeal fees were specifically discussed, and I confusedly thought of that hearing in
response to your question. As Peter Gutowsky explained, I did not attend the planning
commission hearing on this, and am sorry for not having responded to your question by saying
so.
Thank you for your consideration and please inform us of any decisions in this matter.
Best regards,
fr1;7
Carol Macbeth
Central Oregon LandWatch
Prc tecr,rc7 C€! . i Ore cior s Noiuivirorrnerr And Worldrac For St.rsfainabte COrnMLIflJties
Chapter 18.04. TITLE, PURPOSE AND DEFINITIONS
18.04.030. Definitions.
"Lot of record " means:
A. A lot or parcel at least 5,000 square feet in area and at least 50 feet wide, which conformed to
all zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel
was created, and which was created by any of the following means:
1. By partitioning land as defined in ORS 92;
2. By a subdivision plat, as defined in ORS 92, filed with the Deschutes County Surveyor and
recorded with the Deschutes County Clerk;
3. By deed or contract, dated and signed by the parties to the transaction, containing a separate
legal description of the lot or parcel, and recorded in Deschutes County if recording of the
instrument was required on the date of conveyance. If such instrument contains more
than one legal description, only one lot of record shall be recognized unless the legal
descriptions describe lots subject to a recorded subdivision or town plat;
4. By a town plat filed with the Deschutes County Clerk and recorded in the Deschutes
County Record of Plats; or
5. By the subdividing or partitioning of adjacent or surrounding land, leaving a remainder lot
or parcel.
B. Notwithstanding subsection (A), a lot or parcel tihul pro, iow ; receiNvd a land use permit as
defined in D(:'C 22.04.020 or 7 County builrling or septic permit or validated pursuant to ORS
92.176 shall be recognized as equivalent to a lot of record for the purposes of DCC Title 18.
C. The following shall not be deemed to be a lot of record:
1. A lot or parcel created solely by a tax lot segregation because of an assessor's roll change or
for the convenience of the assessor.
2. A lot or parcel created by an intervening section or township line or right of way.
3. A lot or parcel created by an unrecorded subdivision, unless the lot or parcel was conveyed
subject to ih suctVion Aalsibov.,
4. A parcel created by the foreclosure of a security interest.
For the purposes of DCC Title 18, "lot" or "parcel" means a lot of record as defined DCC
18 04.030.
((ltd 201'7-0140,12M ,1'f? 7; Ord. 2016-026§1, 2016; Ord. 2016-015§1, 2016; Ord. 2015-004
§1, 2015; Ord. 2014-009 §1, 2014; Ord. 2013-008 §1, 2013; Ord. 2012-007 §1, 2012;
Ord. 2012-004 §1, 2012; Ord. 2011-009 §1, 2011; Ord. 2010-022 §1, 2010; Ord. 2010-
018 3, 2010, Ord. 2008-007 §1, 2008; Ord. 2008-015 §1, 2008; Ord. 2007-005 §1, 2007;
Ord. 2007- 020 §1, 2007; Ord. 2007-019 §1, 2007; Ord. 2006-008 §1, 2006; Ord. 2005-
041 §1, 2005; Ord. Chapter 18.04 35 ( 0412015) 2004-024 §1, 2004; Ord. 2004-001 §1,
2004; Ord. 2003-028 §1, 2003; Ord. 2001-048 §1, 2001; Ord. 2001-044 §2, 2001; Ord.
2001-037 §1, 2001; Ord. 2001-033 §2, 2001; Ord. 97-078 §5, 1997; Ord. 97-017 §1,
1997; Ord. 97-003 §1, 1997; Ord. 96-082 §1, 1996; Ord. 96-003 §2, 1996; Ord. 95-077
§2, 1995; Ord. 95-075 §1, 1975; Ord. 95-007 §1, 1995; Ord. 95-001 §1, 1995; Ord. 94-
053 §1, 1994; Ord. 94-041 §§2 and 3, 1994; Ord. 94-038 §3, 1994; Ord. 94-008 §§1, 2, 3,
4, 5, 6, 7 and 8, 1994; Ord. 94-001 §§1, 2, and 3, 1994; Ord. 93-043 §§1, 1A and 1B,
1993; Ord. 93- 038 §1, 1993; Ord. 93-005 §§1 and 2, 1993; Ord. 93-002 §§1, 2 and 3,
1993; Ord. 92-066 §1, 1992; Ord. 92-065 §§1 and 2, 1992; Ord. 92-034 §1, 1992; Ord.
92-025 §1, 1992; Ord. 92-004 1 and 2, 1992; Ord. 91-038 §§3 and 4, 1991; Ord. 91-020
§1, 1991; Ord. 91-005 §1, 1991; Ord. 91-002 §11, 1991; Ord. 90-014 §2, 1990; Ord. 89-
009 §2, 1989; Ord. 89-004 §1, 1989; Ord. 88- 050 §3, 1988; Ord. 88-030 §3, 1988; Ord.
88-009 §1, 1988; Ord. 87-015 §1, 1987; Ord. 86-056 2, 1986; Ord. 86-054 §1, 1986; Ord.
Page 1 of 2- EXHIBIT A TO ORDINANCE NO. 2017-014
I- a
86-032 §1, 1986; Ord. 86-018 §1, 1986; Ord. 85-002 §2, 1985; Ord. 84-023 §1, 1984;
Ord. 83-037 §2, 1983; Ord. 83-033 §1, 1983; Ord. 82-013 §1, 1982)
Page 2 of 2- EXHIBIT A TO ORDINANCE NO. 2017-014
0-1
Chapter 18.04. TITLE, PURPOSE AND DEFINITIONS
18.04.030. Definitions.
"Lot" means a unit of land as defined in DCC 18.04.030 and 1.04.020
Witt If a code provision that uses thc term "lot" requires distinguishing how a unit of land was
created, "lot" in that context means a unit of land created by a subdivision of land. Use of the term
"lot" in an ode•ovision shall not be inter veted as rec. uirin ) a determination that the unit of land
was lawfully created,
dato of-the-eonveyance. I r 5uch-ittstft
R-eeer-E1-4-14atst-ef
parcel.
3. A 1
)
subject to DCC 18.01.030(B).
4-.—A-pafeel-er-eatek
For the
18.01.030.
1.k. •
"Lot of record dvkl I ing" means a dwelling approved pursuant to ORS 215.705.
•
"Parcel" means a unit of land as defined in DCC 18.04.030 and 22.04.020.
of land. If a code rovision that uses the term "parcel" requires distinguishing how a unit of land
was created. "meet" in that context means a unit of land created by p:Jrtitioning,of land. Use of the
term " arcel" in an cod rovision shall not be intetpreted as rec uirin )n determination that the
unit of land was lawfully created.
Page 1 of 2- EXHIBIT A TO ORDINANCE NO. 2017-015
3.a
Attachment: Board Work Session Memo (1534: Lot of Record Amendment Work Session)
Packet Pg. 29
"Preexisting
rceerd.
.`Unit of land" means cotttiattuus and discrete land sin Yulatl described I t legal instrutttet►t such
is a deed. hind sale contract. partition. or subdivision, A let ti instrtuncnt that conVevs multiple
mitts of land shall not be interpreted as vacatinglhose_prc)p ►t lines jbetween the multiple units of
land unless abidinz. with applicable law i guliiti ui piopert) line vacation at the time of the
conveyance. The following shall not be Melted gin as descJiibinu. or creatit« multipleunits of land;
tax lot segregations due to an assessor's roll ch;iutie or otherwise for the convenience of the
assessor: inter,vening section or township Tins; inter euro of Way, ,lO t is of streets: suryys;
or unrecorded subdivisions. The terms "unit of land." '`lot_- and "parcel" shall have the sane
rn ini i unless the code provision m which the term is used requires distins uishir►g how, a_unit ut'
land was created. Use of the terms "unit of land" versus "lot" versus "parcel" in anv code provision
shall, not he iut jprcted sus requiring a dctetnin,ttion that the unit o I land ‘Ni►vlawfullv4reated.
(Ord. 2017-0151, 2017; Ord. 2016-026§1, 2016; Ord. 2016-015§1, 2016; Ord. 2015-004 §1,
2015; Ord. 2014-009 §1, 2014; Ord. 2013-008 §1, 2013; Ord. 2012-007 §1, 2012; Ord. 2012-004
§1, 2012; Ord. 2011-009 §1, 2011; Ord. 2010-022 §1, 2010; Ord. 2010-018 3, 2010, Ord. 2008-
007 §1, 2008; Ord. 2008-015 §1, 2008; Ord. 2007-005 §1, 2007; Ord. 2007- 020 §1, 2007; Ord.
2007-019 §1, 2007; Ord. 2006-008 §1, 2006; Ord. 2005-041 §1, 2005; Ord. Chapter 18.04 35 (
04/2015) 2004-024 §1, 2004; Ord. 2004-001 §1, 2004; Ord. 2003-028 §1, 2003; Ord. 2001-048
§1, 2001; Ord. 2001-044 §2, 2001; Ord. 2001-037 §1, 2001; Ord. 2001-033 §2, 2001; Ord. 97-
078 §5, 1997; Ord. 97-017 §1, 1997; Ord. 97-003 §1, 1997; Ord. 96-082 §1, 1996; Ord. 96-003
§2, 1996; Ord. 95-077 §2, 1995; Ord. 95-075 §1, 1975; Ord. 95-007 §1, 1995; Ord. 95-001 §1,
1995; Ord. 94-053 §1, 1994; Ord. 94-041 §§2 and 3, 1994; Ord. 94-038 §3, 1994; Ord. 94-008
§§1, 2, 3, 4, 5, 6, 7 and 8, 1994; Ord. 94-001 §§1, 2, and 3, 1994; Ord. 93-043 §§1, 1 A and 1B,
1993; Ord. 93- 038 §1, 1993; Ord. 93-005 §§1 and 2, 1993; Ord. 93-002 §§1, 2 and 3, 1993; Ord.
92-066 §1, 1992; Ord. 92-065 §§1 and 2, 1992; Ord. 92-034 §1, 1992; Ord. 92-025 §1, 1992;
Ord. 92-004 1 and 2, 1992; Ord. 91-038 §§3 and 4, 1991; Ord. 91-020 §1, 1991; Ord. 91-005 §1,
1991; Ord. 91-002 §11, 1991; Ord. 90-014 §2, 1990; Ord. 89-009 §2, 1989; Ord. 89-004 §1,
1989; Ord. 88- 050 §3, 1988; Ord. 88-030 §3, 1988; Ord. 88-009 §1, 1988; Ord. 87-015 §1, 1987;
Ord. 86-056 2, 1986; Ord. 86-054 §1, 1986; Ord. 86-032 §1, 1986; Ord. 86-018 §1, 1986; Ord.
85-002 §2, 1985; Ord. 84-023 §1, 1984; Ord. 83-037 §2, 1983; Ord. 83-033 §1, 1983; Ord. 82-
013 §1, 1982)
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Chapter 22.04. INTRODUCTION AND DEFINITIONS
22.04.010. Introduction and Application.
22.04.020. Definitions
22.04.030. Repealed.
22.04.040. Ve if Eire Units of Lstncl
22.04.010. Introduction and Application.
A. DCC Title 22 is enacted to provide a uniform procedure for the grant or denial and processing
of applications, approvals and determinations by the Planning Division of the Deschutes
County Community Development Department under the applicable County comprehensive
plan, land use regulations, subdivision and partition ordinance, and other ordinances which by
their terms incorporate by reference the procedures in this title. DCC Title 22 shall be known
as the Deschutes County Development Procedures Ordinance.
B. lxcept as addressed in 13i't; 22.042040, Tthe provisions of DCC Title 22 do not apply to the
issuance, suspension, or revocation of any on-site sewage disposal, structuralbuilding,
electrical, mechanical, or plumbing permits except as they relate to Planning Division
consideration of permitted uses.
C. Notwithstanding DCC 22.04.010(A), inside acknowledged urban growth boundaries and where
authorized by an intergovernmental agreement, the functions of the county Planning Director
and county Hearings Bodies identified herein may be exercised by their counterparts in the
respective cities in accordance with the respective intergovernmental agreements.
(Ord. 2017-015§5, 2017; Ord. 99-031 §1, 1999; Ord. 98-068 §1, 1998; Ord. 98-042 §1, 1998; Ord.
90-007 §1, 1990)
22.04.020. Definitions.
The following definitions apply to DCC Title 22.
"Determination ofLawful-Creation" means a formal decision issued by the County or a finding in a
land use L.tetit.,n prior to OR DINAN . 1: DATE (TIBC) determining that a unit of land met the then --
applicable "lot of record" definition_
"Lot" means a unit of land as defined in DCC 18.01
(ices t e trim -lot" re0uires disiinQuish i how a it
means a unit of land created by a subdivision of land.
shall not be inic..rt7t—led as requir Mil a dcternti
10 and 22.0.1.020. If a code
land was creat
1)se of the titin
'QviSion that
1hat_context
any code provision
natitari that the unit ni land was (awfully created,
"Lot of record dwelling' means a dwellint a.proved pursuant to ORS 215.705.
"Parcel" means a unit of land as defined in DCC 18.04.030 and 22.041.020, if a code provision that
uses the terns "parcel" moires disiinguishint hove a unit of land ,was created 4 '"'parcel" in that
context means a unit of land created bypartitioniof land. Use of the term "parcel" in any code
provision shall not be iittcrJ2ietcd „t t uiring,a determination that the unit o1j utd avisi t,v__Ittllr
created.
-trait t itijZa.tot
as a deed, lttncl sale contrjct_ partition, r s
units of land shall not be interpreted :is v
l and unlessabidintt with applic able law
trtcl sins!t.ilarlyj 1-- 'bed ttv t lee l i t,tttiiatcnd st
ubd(vi ion. lc.tt<tl ittstt°tuncttt that cctttvevs slat
't those..l7aperiv lines bet
i tt properk line vacatirrr at the, time_
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convcvance. The follo vinnshall not tic relied t)n as describ_i► _car cle<trra,t tl�rrltrlale„titr�ts c)l land:
tax lot sewreeationsdue tcrw an assessor's roll c aanttc or otherwise tot the convenience of the
assessor_interventtl } ertt1lr alttowvnshi4ahues intervening rights ofway. roads or strrectti surveys_
or unrecorded subdivisions. The terms "unit of lank- het and "parcel.' shall have the ..rite
meaning unless the code provision in which the terns is used requires distinguishinu how a unit of
land was created Use of the terms"unit of land"versus iot" versus -parcel" in any Lode provision
shall not be interpreted as r .win inl a determination that the unit of land vas lawfully created.
(Ord. 2017-015§5, 2017; Ord 96-071 § 1A, 1996; Ord. 95-045 § 1, 1995; Ord. 90-007 § 1, 1990)
1)4.040 V°
Jriits of Land.
A. Purpose; scope. Concurrent with or prior to the approval o `certain permits, units of land shall
he verified pursuant to this section 22.0=4.04(1 to reasonably ensure con_ plt tragi vvlth the.,_rtlrtin ,
and land division laws in effect on the date the unit of land was created Jct rll.pc.r
crilication. It required, verification is a threshold issue addressed be(ctre the permit may he
approved. but verification docs not Supersede or nullify other pe tit requirements. ,This section
22.041.041 provides the option to concurrently verity a unit cr1' land a.s parf of applying for land
use permits, or to instead apply for a deeIarat,ry inline.
Permits Requiring! Verification.
1. Unless an exception applies pursuant to subsection 113)(2) below, verifying a unit of land
pursuant to subsection (_:) shall be required pt`ior to the issuance of the following permits:
a. Any land use permit for a unit of land in the Exclusive Farm Use ZonesLDCC Chapter
18.16), Forest CSC Loin. I 1._.(j)(tw C hail t r._.18 6), or Forest 1 kc Zone. yr F2 (DC'C
Chapter 18.40);
b. Anv permit for a unit of land includin wetlands as shown on the Statewide Wetlands
Inventory;
c, Any Permit f )r a unit ot land subject to v ildlilc htrbi
i Aland usepermit relocrrtuiu property na s it tet reclrac.e. in circ tt tnait of`ltttad; and
e. A land use permit, structural permit, or non-emeraencv on-site sewage disposal system
permit if the unit of land is smaller than the minimum area rearrircd in the applicable
zone.
ceftticrns. Vcrifictrticua hall not bet .quired il'one of the following exceptions apple:
The u► tt caf l<a►rd y a _wrs <rtrcibv a srrl) Ire f ltal plat, partitioplt or (own plat a aroved
aur)ir�,another pulit e tl slibchv)1 the State f Oregon, or the State of
(;)recon;
The unit of land was previously validated by the County and an applicable partition plat
was subsequently recorded within 90 days as required by ORS 92,176(1)
The unit of laud previously received a 1)etcrnrination of Lawful-Crca
The unit of f:(w s previously veiified_lrutsuant to subsection ((} tend fa finding v'as
issued to that effect in a land use action or declaratory ruling; or
f. For permits listed in subsection (11)(1)(e) only, the unit of land previously received a
land use or building, permit prior to ORDINANCE, DATE (TB[)). a structural perm'l
after ORDINANCE DATE (1131 )rat i ri n e lieruene o>n srti 5e\.\age dispo.sal
)ertrt rt,
erified Units ul 1.aud. Permits that requne ver°ilictatictra .,stall t.)ulZ be issued to unit; caf land
created in compliance with applicable zoning _incl land divisitlr ler :s iia effect t,n the date the
unit o1' land was created as evidence by one of the fulloc.<<in r.rrcturist
1. The unit of land is a "lawfully established unit of land” pursuant to the definitions
established in ORS 92.010;
4 he un"trot`landeta s crcttted by a It line adjustmentapproved by thcCot 4�t ,Sr3,Dim as the
pieceditrg_un to! Irttc3 ?r' vtrrt�sl � tLcurked aeDetermination of Lawful -Creation or was a
"lawfully_L5t rbli.hed ar►rrt cel ltlt>d.,_Ilrtr ,rrattt to the definitions established in ORS 92:010f'
3. The unit of land was created as a remainder result Mu from a subdivision alar,, artitic)rt Iris,
town plat,or;any other lawful division of adz recut or surrounding land:
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a- 6
4.. The unit of land was created by the United States of America prior to or pursuant to a
convc}a ee to the current owner or the owns s ncdecesso►s ut-interest; or
The t►lttt o1; land w is cleated by or esult
matattio►►ni I.rot
eonde, t)r a►►)� other dedication of 1
goveniinental entity accepted.
th dedication.
I).
Findings; Declaratory Ruling. If an applicant applies for a (and use. pen
tl3Jt 1 ythat rtgt ires public nc)t'eee, the County shall include c�► ,i three
that the unit of land was created in Compliance with applicable
and land division laws.Ixutivaitt to subsection,t(:);a finding noting that the unit of land
cc,taa,l)!�, ,�ratlt
subsection ()or_a fincltta noting that: verification was not required
because the unit of land qualified for exceptac7n,pursuai t io snbseetion_(F3j(?j_, Ilan applicant
applies for ►all c>thei_pern►it listed in subsection(FiltI the app(.icant may request a declaratory
rulip_g_pur,tt a�lttc� I)( �_ (
_h`!U
tpte 2'_)_. ,Aa applicant _anal` a_lso_r ue t i_ Jlce,l ry unit rulings
pursuant to I WC' C'haptCr 22,40 prior to a applying_ fir a permit. lithe unit of land was created in
eonmIlancur,�� itth applicable zoning and land divisions laws pursuant to subsection (CI. the
County shall issue the declaratory rutins, determining that the unit of land qualifies for all.
permits listed in subsection (B)(1). mIf the unit of land, does not comply with subsection (C). the
County shall not issue the_de l ti story ulinl;and i steaui sh ill pi'ov'ide the applicant information
on other options.
E._ Permit Limitations Ifaland use action include` a lit
aft: eonaply with subsection (mm(') c»►Iy the l ylluwin
/ permit eliminating coon property lines abuttingtlac subject unit of land;
. Aizi
permit authorn a single lot partition plat to validate the unit of land pursuant to ORS
92.176 and 177;
land t► _peri»it.. building aorta
for the continued use of a structure located on
ronin
condenul ltit7ll as tlt7it a threat
C?1
n'ivauc land tOr a public use if the applicable
acta find ve►'11
it listed in subsection
ding in the land use
i oes n{)t
nit of land does
and/or on site s4
disposal system pit allow
land pursuant to
or
Any ether
1)tertnimatt
that rc:ttrrns the
ion
)2.17( 3
uurnation that previously receival a
and a finding was issued tri that died in at land use
(Ord. 2017-0150, 2017)
Page 3 of 3- EXHIBIT E TO ORDINANCE NO. 2017-015
feed _pursuant to subsection ((
nr declaratory ruling.,
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Packs
Pg. 41
LIZ FitIVCIIE7 , ATTORNEY
September 22, 2017
BOARD OF COUNTY COMMISSIONERS
DESCHUTES COUNTY
PO BOX 6005
BEND, OR 97708-6005
Vi
sEP.�:2 2017
Liz Fanche4'esC1U es County CDD
Sue Stinson, Paralegal
Re: File No. 247 -17 -000596 -TA; Amendment of Lot of Record Rules
Applicant: Deschutes County
77 //.'so
Please consider and include the following comments in the record of the above -referenced
case I am filing on behalf of Belveron Real Estate Partners, LLC (hereinafter `Belveron"):
STATEMENT OF BELVERON'S POSITION REGARDING FEDERAL LOTS
Prior County Decisions
According to findings made by the Board of Commissioners in 1994, LR-92-47/O'Neill,
Deschutes County "routinely recognized" individual parcels conveyed by federal patent
(deed from USA) as lots of record whether or not they specifically met the requirements of
the County's lot of record ordinance. Page 15, O'Neill. The Board found "the County
recognizes federal transfers as in essence conferring lot of record status on contiguous
blocks of land as a severance of property from the public lands. To fail to recognize such
land units would impede the federal government in its ability to dispose of its public lands,
and the county would in all likelihood be found to be preempted if it were to require the
federal government to sever its lands from the public lands by going through the county
land division process. Pages 23-24, O'Neill.
The Board's interpretation was faithfully honored by County staff and hearings officers
until 2008 when Hearings Officer Ken Helm issued a decision in Thompson, LR -07-52. In
that case, Mr. Helm found that a parcel lawfully created under federal law was not a
County -defined "lot of record" because it did not conform to county subdivision, partition
and zoning codes when created.
In 2015, Mr. Helm reversed his resolution of this issue in Pine Forest Development, LLC
(Caldera), File 247 -15 -000464 -CU (pages 1-3 and 9-10 of decision attached) when
considering the lot of record status of land created by the BLM in the same process that
created the adjacent Belveron forest zone property. In the 2015 case, Mr. Helm found that
a parcel of land conveyed by the federal government by quitclaim deed that met the
minimum lot size required by the F-1 zone qualified as a lot of record under the terms of
the County's lot of record ordinance. It is unclear, from the decision, whether compliance
644 NW BROADWAY STREET • BEND, OREGON • 97701
PHONE: 541-385-3067 • FAX: 541-385-3076
-2 -
Flu
with the minimum lot size is or is not required. The Belveron property exceeds the
minimum lot size of the F1 zone which is 80 acres.
The apparent reasoning behind Mr. Helm's decision Pine Forest/Caldera decision is that a
parcel created by the federal government is lawfully created under federal law and that if
created by a federal deed (or patent), it qualifies as a County -defined "lot of record." This
is interpretation is consistent with findings in Mr. Helm's 2008 Thompson decision that
found that the federal government may, under federal law (specifically, FLPMA), convey
land without following state and local partitioning rules and without complying with
Deschutes County's minimum lot sizes. As stated by Mr. Helm "[t]he result is exactly
what the applicant holds today which is a legally created lot or parcel under FPLMA [sic],
suitable for use or conveyance, that despite being below the minimum lot size for F-1
zoned lands is still subject to the rules and requirements applicable to that zone.
The proposed County text amendment will codify the County's prior, decades -long
interpretation of the federal lot issue and make it clear that the incorrectly -decided
Thompson decision is not to be followed by County staff. Belveron asks that this issue be
squarely addressed and resolved by the Board as proposed by the draft text amendment
ordinance.
Negative Impacts of COLW Position on Resource Lands
COLW appears to assume that prohibiting the development of land conveyed to
governmental entities and private parties is consistent with Statewide Planning Goals.
This is not, however, the case. A county rule that prohibits any development to occur on a
property if it was created by the federal government or because it is not a County "lot of
record" prevents or seriously impeded a property owner from using land for the purposes
intended by the Statewide Goals.
The County's zoning ordinances allow uses consistent with and necessary to allow
resource -related uses expected to occur in resource zones. If a federal parcel zoned EFU
is conveyed to a private party, they would not be able to obtain required County permits
needed to conduct uses in the EFU zone by State law must be allowed outright or subject
to conditions set by LCDC in its rules on lawfully -created federal parcels such as the
Belveron property. Brentmar v. Jackson County, 321 Or 481, 900 P2d 1030 (1995)(uses
listed in ORS 215.213(1) and 215.283(1) are used permitted outright in the EFU zone).
Lane County v. LCDC, 138 Or App 635, 910 P2d 414 (1996), adhered to as modified 140
Or App, 368, 914 P2d 1114 (1996)(LCDC may impose additional conditions on uses
permitted outright to further Goal 3). For instance, farming cannot occur without
developing the land by tilling it, building fences, farm buildings, pump houses and
irrigation systems. The agricultural use of a winery requires extensive development. In
the forest zone, a property owner's right to harvest timber, to engage in soil, air and water
quality projects and to provide for wildlife and fisheries resources and to engage in farm
use — all uses otherwise allowed outright by the County's acknowledged land use
regulations and comprehensive plan — might be unable to occur. Most certainly, towers
- 3 - Ap, 2017
and fire stations needed for forest fire protection would not be able to be built as they
require building permits.
Prior Comments Filed with the County by Belveron
I am attaching a copy of two letters dated April 5, 2017 and April 19, 2017 that I filed with
the Board of Commissioners on behalf of Belveron in File No. 247-16-000408-LR1247-
17-000027-A/Kine. The Kine case involves issues regarding the legal effect of federal
patents and federal land divisions under the County's current lot of record ordinance.
Please include these letter in the record of this "lot of record" text amendment.
RESPONSE TO CENTRAL OREGON LANDWATCH TESTIMONY
COLW: The text amendment will allowing remainder lots created by deed to be
developed that would not otherwise be buildable.
Belveron: This is incorrect. Under current "lot of record" law, remainder lots created by
deed are lots of record eligible for development. The Board of Commissioners so found in
its approval of the Tumalo Irrigation District lot of record application:
"Parcels created by deeds or contracts may qualify as lots of record as
remainder parcels through the partitioning of adjoining or surrounding
land. This occurs when a deed conveys a part of a parent parcel. The part
conveyed is created by deed and the part remaining in the ownership of the
owner of the parent parcel (prior to division) is a remainder parcel. " Board
.Decision quoted in Central Oregon Landwatch v. Deschutes County
(Tumalo Irrigation District), Or LUBA — (LUBA No. 2016-056, May
4, 2017).
As noted by LUBA, "the commissioners interpreted DCC 18.04.030(5) to govern
remainder parcels created by deed." LUBA upheld that determination. As a result, the
text amendment maintains the status quo regarding remainder lots created by deed.
COLW: Eight parcels exist and can be developed on land zoned OS&C (Open Space and
Conservation) where there was only one parcel on land dedicated to wildlife use (referring
to the TID decision cited above).
Belveron: Eight parcels had been lawfully created in 1912 through 1914. These parcels
were separately acquired by the State of Oregon then conveyed to Tumalo Irrigation
District (TID) with other land totaling 930 acres in size.
COLW claimed that the boundaries of the eight lawfully created parcels were eliminated
simply because the State used a legal description of the perimeter of the 930 acres to
convey the eight parcels and other land to TID. LUBA rejected that argument and
affirmed the County's decision that recognized the lawfully established boundaries of each
of the eight parcels. This decision did not create new parcels.
— 4 — Apri119,2017
Furthermore, the County's lot of record decision did not increase the development
potential of OS&C lands owned by TID as implied by COLW. Regardless of whether the
property is one parcel or eight, the same level of development may occur there — either on
one large parcel or on eight parcels. The OS&C zone does not allow the development of
single-family homes or other residences. As a result, the approval does not mean that
eight houses will appear where only one might otherwise be allowed.
COLW: The approval of the text amendment will allow more development than
contemplated by the comprehensive plan.
Belveron: COLW has failed to demonstrate that the County's lot of record ordinance was
relied on, in any way, to achieve compliance with the Statewide Goals. Its amendment,
therefore, does not alter compliance of the plan with the Statewide Goals. Whittemore v.
City of Gearhart, LUBA Nos. 2016-102 (May 30, 2017)(in a challenge based on the
Statewide goals, a petitioner must demonstrate that the comprehensive plan protects the
resource impacted by the change in law). COLW has also failed to establish, as a factual
matter, that the new text will allow development where it was not otherwise allowed by
the County under the terms of the law as interpreted by the Board, County hearings
officers and staff.
COLW: More developable lots will be created because the current lot of record ordinance
limits deeds to creating no more than one parcel per deed or land sale contract.
Belveron: This provision of the lot of record code is of doubtful validity given LUBA's
decision in Thomas v. Wasco County, 58 Or LUBA 452 (2009) as it provides an arbitrarily
different result depending on whether land is created by one deed or whether the same
parcels are created by two deeds. Furthermore, Deschutes County does not interpret this
provision to consolidate existing lots and parcels created by prior conveyances.
Additionally, as a factual matter,1 the parcels described on a single deed are often later
conveyed by separate deeds or have been further divided by a partition or subdivision
approval. As a result, this "one lot of record per deed" provision only affects a small
number of properties — those where only one deed or contract describes and conveys
lands. The proposed text amendment that removes this limitation, therefore, will not
significantly change the number of lots that may qualify for development.
RESPONSE TO CENTRAL OREGON LANDWATCH WRITTEN ARGUMENT
COLW: The text amendment varies the legal effect of deeds by failing to consolidate
parcels conveyed together in a single deed.
Belveron: This issue was addressed and resolved in COLW v. Deschutes County (TID).
LUBA found that COLW had failed to cite any Oregon law that stands for the legal
proposition that a deed that conveys multiple parcels of land has the legal effect of
This comment is based on my extensive experience handling Deschutes County lot of record matters since
1992. This has included my review of a large number of lot of record decisions.
-5-
consolidating the parcels; even if the deed includes a single metes and bounds legal
description. LUBA also was unable to find any Oregon law that supports COLW's legal
position. Furthermore, ORS 92.017 specifically states that it protects the lawfully
established parcel lines of parcels unless and until the lines are vacated according to law,
e.g. by a lot consolidation approval or by filing a subdivision or partition plat over pre-
existing legal boundaries.
COLW: Deschutes County may regulate uses in the EFU zone more restrictively than
allowed by State law.
Belveron: COLW's statement of the law is based issued prior to the Oregon Supreme
Court's decision of Brentmar v. Jackson County, 321 Or 481, 900 P2d 1030 (1995). In
Brentmar, the Oregon Supreme Court held that uses allowed by ORS 215.213(1) and ORS
215.283(1) are uses permitted outright. Any use listed in subsection (1) may not be
regulated more restrictively by the County than allowed by State law.
COLW: The County cannot adopt regulations that allow unlawfully created parcels to be
developed that do not qualify under the terms the legislature established in ORS 92.176;
specifically, for building permits, ORS 92.176(2).
Belveron: Respondent's "lot of record" definition and the new code proposed by the
county to revise it, neither adopts nor implements a State land use law. Instead, the
definition is a local requirement applied as a precondition of development otherwise
allowed by DCC Title 18, the County's zoning regulations and State law. State law does
not requires Respondent to impose this "lot of record" requirement. McKay Creek v.
Washington County, 118 Or App 543, 848 P2d 624 (1993)(status of a property as lot or
parcel did not have to be determined when granting approval of dwelling); Marshall v.
City of Yachats, 158 Or App 141, 973 P2d 374, rev den 328 Or 594 Or 594, 987 P.2d 514
(1999); see also, Maxwell v. Lane County, 178 Or App 210, 35 P3d 1128 (2001), adhered
to as modified 179 Or App 409, 40 P3d 532 (2002)(a local government must determine the
legal status of a unit of land in connection with a current proceeding only "if required to
do so by applicable legislation"); South v. City of Portland, 53 Or LUBA 362, 372-373
(2007)(no requirement to establish legal lot status unless prescribed by local code).
ORS 92.176 is a part of ORS Chapter 92. This part of State law authorizes counties and
cities to regulate land divisions and prescribes rules that relate to the approval of
subdivisions and partitions. The consequence of failing to comply with Chapter 92 is that
a purchaser of an unlawfully created property may rescind the purchase (ORS 92.018) and
the person who unlawfully divided the land is subject to criminal penalties (ORS 92.016,
92.025, 92.990). The consequence is not, as desired by COLW, that improperly divided
land is forever unable to be used for any uses allowed by the applicable zoning code —
including uses intended to occur in resource zones. Under ORS Chapter 215, the chapter
that prescribes land use regulations that must be applied to protect resource lands, the law
requires that properties be lawfully created, in, to qualify for certain land use approvals.
LUBA has extended this requirement to apply to lots that are counted to meet the template
test for a dwelling in a forest zone.
— 6 — Aptil 19, 2017
ORS 92.176 creates a way that parcels that were not created in a way prescribed by ORS
92.010, if required, can be platted as a partition parcel. It does not create a requirement
that county's must determine the lawful status of a unit of land in land use proceedings
seeking approval of development allowed by a County's zoning ordinance. Lawfully
created parcel requirements are, instead, applied to county land use reviews, in selected
cases (uses required to occur on a "parcel" as defined by ORS 215.010), by ORS Chapter
215. This is confirmed by the text of ORS 92.176 (2) that provides a method to validate
land based on the issuance of building permits. The statute says that a county may
approve an application to validate a unit of land "under this section." It does not say that
that land must meet its conditions or sit vacant and unused for the rest of time.
In order to make it clear that its new code does not cover the same ground as ORS 92.176,
the county may wish to consider referring to parcels it will allow to be developed as
"buildable lots," "development lots," "development -eligible lots" or another similar term.
Thank you for your anticipated careful consideration of these comments and the text
amendments now before you for review. Please adopt the amendments without revision to
the provisions related to federal lands and those that recognize the lawfully -created
boundaries of lots created by deed.
Cc: A. Smith
P. Gutowsky
LIZ FANC Ei , ATTORNEY
Liz Fancher
Sue Stinson, Paralegal
April 5, 2017
BOARD OF COUNTY COMMISSIONERS
DESCHUTES COUNTY
PO BOX 6005
BEND, OR 97708-6005
Re: Appeal of File No. 247-16-000408-LR/247-17-000027-A
Applicant/Appellant: Larry Kine
I am writing on behalf of Belveron Real Estate Partners, LLC ("Belveron"). Belveron
owns property at 17705 Vandevert Road, Bend, Oregon that it purchased from the USA in
2008. Its property is zoned F-2 and it exceeds the minimum lot size of the F-2 zone. It
asks that the County Board make a decision in the Kine appeal that will not preclude it
from developing its property.
Specifically, Belveron asks that the Board follow the reasoning of Hearings Officer Ken
Helm in the Pine Forest decision (247 -15 -000464 -CU). Mr. Helm held that a lot lawfully
created by the federal government is a legal lot of record if it meets one of the five
conditions set out in the lot of record definition. In that case, the parcel was created by a
quitclaim deed from the federal government.
BACKGROUND
All land in Deschutes County was created, at one point in time, by a land conveyance
from the federal government. Prior to 2008, the County recognized federal patents
granted after the adoption of the County's partition ordinance in 1977 as creating lots of
record. This practice allowed for federal lands to be transferred to governmental entities
and to private property owners.
In 2008, the Thompson decision was issued by Hearings Officer Ken Helm. Based on that
decision, County staff adopted the position that lots created by federal patent or deed after
1977 were not lots of record because they did not receive County land use approval prior
to their transfer to a private party. By and large, after 2008, the county staff has refused to
allow any development or division of lands conveyed by the federal government.' Mr.
'The County has, however, approved a partition of land for the City of Sisters of property
the county found was not a legal lot of record because it was conveyed by a federal patent.
644 NW BROADWAY STREET • BEND, OREGON • 97701
PHONE: 541-385-3067 • FAX: 541-385-3076
- 2 - April 5, 2017
Helm's Pine Forest decision, however, made it clear that this was not the meaning of his
Thompson decision when he found that a federal quitclaim deed creates a parcel that
qualifies as a "lot of record."
PUBLIC NEED FOR FEDERAL LAND CONVEYANCES
Many public projects on land conveyed by the federal government by patent or deed after
1977 would not have been allowed to occur if the County had interpreted the term "lot of
record" to exclude parcels created by federal patents. A list of these properties and their
current development status is attached. The list includes the following projects that were
made possible by federal land conveyances:
1. Sisters High School and Middle School
2. La Pine Public Schools
3. Ponderosa Elementary School (Bend)
4. Future school site in Redmond
5. Bend Pine Nursery Park
6. City of LaPine sewage treatment facilities
7. City of Bend sewage treatment facilities
8. City of Sisters sewage treatment facilities
9. Oregon Water Wonderland sewage treatment facilities
10. Sunriver Environmental LLC sewage treatment facilities
11. Sisters -Camp Sherman fire training facilities
12. City of LaPine library and park
13. City of Redmond's Juniper Golf Course
14. Juniper Ridge Development Area
15. Deschutes County's Newberry Neighborhood
16. Midstate Electric power substation
17. Rodeo Grounds for La Pine
LEGAL ANALYSIS
All County hearings officers who have considered the issue of whether federal patents or
deeds create lots of record have determined that the creation of parcels by the federal
government by deed is lawful. In 1992, the Board of Commissioners determined that lots
created by federal patents (deeds) would be recognized as legal lots of record as "[t]o fail
to recognize such land units would impede the federal government in its ability to dispose
of its public lands, and the county in all likelihood be found to be preempted if it were to
require the federal government to sever its lands from the public lands by going through
the county land division process." O'Neill/LR-92-47.
The county's subdivision laws do not apply to the federal government by virtue of various
provisions of the US Constitution and constitutional law, including:
a. The intergovernmental immunity doctrine first enunciated in McCulloch v.
Maryland, 17 US 316 (1819) which, as relevant here, prevents states from
- 3 - April 5, 2017
regulating the functions of the federal government. The right to transfer and
regulate its property is a basic right of the federal government.
b. Article VI, Clause 2 of the US Constitution (Supremacy Clause) states: "This
Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and the Judges in every State
shall be bound thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding." The federal government has acted to dictate the
manner in which federal lands will be severed from the public domain so its law,
rather than local land division law, controls.
c. Article I of the U.S. Constitution that states: "Congress shall have power... to make
all laws which shall be necessary and proper for carrying into execution the ...
powers vested by this Constitution in the government of the United States." The
power to control federal lands is granted to the federal government by Section 3,
Clause 2 of the Constitution.
d. Section 3, Clause 2 of the US Constitution states: "The Congress shall have power
to dispose of and make all needful Rules and Regulations respecting the Territory
or other Property belonging to the United States; and nothing in this Constitution
shall be so construed as to Prejudice any Claims of the United States, or of any
particular State." This clause, commonly known as the Property or Territorial
Clause, grants Congress the constitutional authority for the management and
control of all territories or other property owned by the United States.
The federal government has adopted laws, referred to as "FLPMA," to regulate land sales
and transfers. 43 USC 1701-1784. The law prescribes patents or other documents of
conveyance (deeds) as the method of conveyance of federal lands to private parties. 43
USC 1718. The processes outlined in FLPMA require 60 days prior notice to local
governments so they can "change or amend existing zoning or other regulations
concerning the use of such lands prior to such conveyance." 43 USC 1720. It prohibits the
federal government from including provisions in conveyances that would constitute a
violation of State or local land use laws. 43 USC 1718. FLPMA does not, however,
require that the federal government obtain State subdivision approval before it conveys
land from the public domain. In fact, FLPMA specifically provides that certain lands may
be conveyed without a survey, an integral part of a local subdivision process, unless the
survey is paid for by the state or local government. Given this scheme of regulation, the
County's hearings officers and staff have, since Thompson, consistently found that a
federal patent deed or quitclaim deed legally creates a new parcel.
The public domain is, in many cases, a vast area of land that spans many counties and
states. It cannot, as a practical matter, be partitioned by an ORS Chapter 92 partition plat
as it would be impossible to survey and map the location of the parent parcel and to obtain
approval of the division from every county and state where federal lands are located.
Additionally, the federal system of surveying is, according to BLM managers who met
- 4 -- April 5, 2017
with County officials and Belveron's attorney to discuss the impacts of the Thompson
decision, incompatible with Oregon's system of surveying and platting land divisions.
Furthermore, the Oregon partition process would result in State regulation of lands
retained in federal ownership because it would require the platting of lands retained by the
federal government contrary to the doctrine of intergovernmental immunity. In essence,
the State of Oregon has no right to require the federal government to create parcels of its
retained land in order to create new parcels for sale to private parties.
Federal regulations for lands received in an exchange of land with a private party, say the
"use or development" of the land is subject to local land use regulation. 36 CFR Section
254.3(h). This means that the County may impose development restrictions to uses but it
does not authorize the County to treat the federal conveyance as an unlawful means of
creating new units of land from the federal domain.
The County's hearings officer in Kine correctly determined that the conveyance of land to
Seventh Mountain Sales Corporation in 1984 was lawful and that the property may be
used and conveyed. He held, however, that to qualify for development the property must
be a "lot of record" as defined by DCC 18.04.030, Lot of Record. That law provides:
Lot of Record" means:
A. A lot or parcel at least 5,000 square feet in area and at least 50 feet wide, which
conformed to all zoning and subdivision or partition requirements, if any, in effect on
the date the lot or parcel was created, and which was created by any of the following
means:
Response: Both the entire area conveyed by the 1984 deed and each parcel described on
the deed is at least 5,000 square feet in area and at least 50 feet wide. It was not subject to
local zoning, subdivision or partition requirements when it was created. After it was
created, its use was controlled by local land use laws. The County may reasonably find
that its laws were not "in effect" for federal lands on the date the parcels were created as
its law has no effect on federal lands until the land has been transferred to private
ownership.
1. By partitioning land as defined in ORS 92;
2. By a subdivision plat, as defined in ORS 92, filed with the Deschutes County
Surveyor and recorded with the Deschutes County Clerk;
3. By deed or contract, dated and signed by the parties to the transaction, containing
a separate legal description of the lot or parcel, and recorded in Deschutes County if
recording of the instrument was required on the date of the conveyance. If such
instrument contains more than one legal description, only one lot of record shall be
recognized unless the legal descriptions describe lots subject to a recorded
subdivision or town plat;
4. By a town plat filed with the Deschutes County Clerk and recorded in the
Deschutes County Record of Plats; or
— 5 — April 5, 2017
5. By the subdividing or partitioning of adjacent or surrounding land, leaving a
remainder lot or parcel.
Response: Typically, federal conveyances occur by patent or quitclaim deed. As a result,
most conveyances will qualify for development as a "lot of record" because they were
conveyed by a deed. This was the case in the Pine Forest decision by Hearings Officer
Helm in 2015 (Case 247 -15 -000464 -CU). There, a quitclaim deed was found to fit "at
least one of the County's lot of record criteria." In this case, the applicant is claiming that
a subdivision plat created four lots and that these lots are lots of record because they are
remainder lots. The four lots meet the definition of a lot of record because the federal plat
meets the definition of a subdivision plat as the term is defined by ORS Chapter 92 and
the plat has, since the hearings officer's decision, been recorded with the Deschutes
County Clerk.
We also believe that federal conveyances of land create "lawfully established units of
land" as the term is defined by ORS 92.010(3)(a). This definition, however, is only
relevant in a future County review of a property line adjustment application. This is the
case because the term is limited in application by ORS 92.010 to ORS 92.010 to 92.192
and is only applicable to property line and lot legalization applications under Title 17. It
has no bearing on the County's determination whether lots are lots of record eligible for
development under Title 18.
CONCLUSION
Belveron asks that you apply the same analysis applied by Hearings Officer Ken Helm in
the 2015 Pine Forest decision and find that deeds and patents from the federal government
create lots of record of the land conveyed. Mr. Helm's Pine Forest decision correctly
reiterates his determination in Thompson that the creation of parcels by patents or deeds
by federal government is lawful and clarifies that it does not prevent a property from
qualifying as a lot of record if created in one of the ways enumerated in the County's lot of
record ordinance.
Sincerely,
Liz Fancher
Cc: W Groves
client
file
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Bend Pine Nursery Park
Ponderosa Elementary School
Highway 126 east edge of Redmond
E. Antler Av & SE 9fh Street, RDM
Partition 2014-9 by USA
Map 20-10-00, TL 107 (part)
Map 17-13-00, TL 104 (part)
Map 17-12-12, TL 101 (part)
Map 17-13-00, TL 104 (part)
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[Map 17-13-00, TL 105
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City of Sisters
Case 247-16-000408-LR/247-17-000027-A
Belveron List of Former Federal Lands
332.10 acres
42.10 acres
3.26 acres 1
174.41 acres
1559.78 acres 1
518.8 acres
40 acres
638.72 acres
141.76 acres
3.2 acres
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Brent Ellis
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1 City of LaPine
City of Redmond Public
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Case 247-16-000408-LR/247-17-000027-A
Belveron List of Former Federal Lands
LIZ FitNCliE2, ATTORNEY
Liz Fancher
Sue Stinson, Paralegal
April 19, 2017
BOARD OF COUNTY COMMISSIONERS
DESCHUTES COUNTY
PO BOX 6005
BEND, OR 97708-6005
Re: Appeal of File No. 247-16-000408-LR/247-17-000027-A
Applicant/Appellant: Larry Kine
I am writing on behalf of Belveron Real Estate Partners, LLC ("Belveron") to provide you
with information that responds to a statement made by County staff at the end of your
April 5, 2017 hearing regarding the Kine appeal. Staff made a statement to the effect that
the County's lot of record ordinance does not prevent the development of property. Staff
appeared to be suggesting that if a 40 -acre property were divided in a way that does not
create a lot of record, that both owners could seek development approval. While this may
be theoretically possible, it does not offer a development option for the vast majority of
property owners. As a general rule, if a property cannot be recognized as a lot of record it
will not be able to be developed and the County will not issue any development permits
for the property.1
The County Board, in its recent Tumalo Irrigation District lot line adjustment decision,
adopted the following finding prepared by Hearings Officer Karen Green:
"Title 18 does not expressly require lot -of -record verification as a
prerequisite to development. Nevertheless, the Hearings Officer is aware
the county has established such a requirement through policies and
practices. Specifically, the county (1) does not approve or recommend
approval of a land use application without first determining that the
subject property consists of one or more lots of record; (2) requires an
applicant for land use approval to demonstrate the property consists of one
or more lots of record; and (3) if there is a question about the property's
lot -of -record status, requires an applicant to submit a lot -of -record
verification application prior to, or with, an application for development
1 Older lots and parcels may qualify to receive partition approval after the fact but must be shown
to comply with repealed partition laws. This remedy is, according to County staff, rarely used in
Deschutes County and it is not available to Belveron as its lot was lawfully created by the USA in
2008 at a size that exceeded the minimum lot size of the applicable zoning district (Fl; now F2).
644 NW BROADWAY STREET • BEND, OREGON • 97701
PHONE: 541-385-3067 • FAX: 541-385-3076
- 2 - April 19, 2017
approval under Title 18 or an application for approval of a subdivision,
partition or lot line adjustment under Title 17, the county's
subdivision/partition ordinance." Page 8, Exhibit A, Decision of Deschutes
County Board of Commissioners in 247-15-000633-A.
Additionally, County staff has advised the Board that "[u]nder most circumstances,
Deschutes County will not recognize a unit of land for planning or development purposes
unless it is recognized as a legal lot of record." Page 3, February 24, 2016 Memorandum
to Board of County Commissioners from Cynthia Smidt.
As a practical matter, a determination that a property is not a lot of record precludes the
development of most properties. This is shown by the following examples based on actual
circumstances currently being encountered by Deschutes County property owners:
Example 1
A 40 -acre parent parcel was created in 1940. The 40 -acre property was divided in 1981
into two 20 acre properties. One parcel was sold to Jones and the other was sold to Smith.
The County issued development permits for the Jones property in 1983. In 1995, Smith
applied to the County for building permits after the property had been zoned F2 and an 80 -
acre minimum lot size applied. Smith was told that a lot of record and a forest template
dwelling approval was required. The County denied Smith's lot of record determination.
The County tells Smith it will deny his template dwelling application and will not issue
development permits for his property. If Jones signs a development application for the
Smith property, Deschutes County will deny development approval because the Jones
property already contains a dwelling.
Example 2
Same as Example 1 except that Deschutes County has not approved development on either
parcel in 1995 when Smith seeks land use approvals. Smith asks Jones to sign the land
use application for template dwelling approval. Jones refuses because approval of a house
on the Smith property will make the Jones property ineligible for a dwelling. Under this
scenario, both 20 -acre parcels are not developable. The only way any development may
occur on either property is if one of the two property owners sells their property. This
creates, in the best case scenario, one legal lot of record of 40 acres.
Example 3
A 40 -acre parent parcel with a 1958 house was lawfully divided by an unrecorded land
sale contract in 1973 by the sale of 20 acres of the property to New Owner 1. New Owner
1 discarded the land sale contract in 1980 when he received a deed to the 20 acres. New
Owner 1 obtained approval to build a house and his property is determined to be a lot of
record during a conditional use permit review in 1999 because Old Owner's property was
developed with a home. The Old Owner sells his 20 acres to New Owner 2 in 2000. In
2017, New Owner 2 seeks building permit approvals to remodel the 1958 house.
-3- April 19,2017
Deschutes County staff refuses to issue permits because New Owner 2's parcel with the
1958 house is not a lot of record because a copy of the land sale contract that created New
Owner 1's parcel cannot be produced to show it was signed by the parties to the contract
in 1973. Central Oregon LandWatch, under the theory they are advancing at the Oregon
Land Use Board of Appeals in the Tumalo Irrigation District case, would also argue that
New Owner 2's lot with a 1958 house is not a lot of record because no land sale contract
or deed was recorded for Owner 2's lot prior to April 6, 1977.
In this example, no permits for electrical, mechanical or other approvals will ever be
issued to this house. The house will become a safety hazard and may be abandoned or
demolished. New Owner 1 can do nothing short of demolishing his home and conveying
his property to New Owner 2 to enable New Owner 2 to remodel his home.
Example 4
Deschutes County acquires land from the USA in 2008 for use as a septic treatment plant.
The land comes from property held by the USA that has never been "patented" to private
property owners. This land does not meet the definition of a "lot of record" despite the
fact it is likely the source of all private lands in Deschutes County. From April 6, 1977
until 2008, numerous parcels of land were conveyed from the vast area of federal lands
that have not been patented. This area stretches to other counties and, likely, to other
states.
Deschutes County would need to acquire the permission of the USA and all persons who
have received land from the parent parcel of unpatented lands since 1977 (other than those
with land division approvals) because their properties were not partitioned by a Deschutes
County partition plat from the federal parcel.2 This would likely require signatures from
many federal officials — each with jurisdiction over different parts of the federal lands.
Since the parent parcel is so vast, it would be practically impossible to survey. It would
also be nearly impossible to identify much less obtain the consent of all persons who have
received lands from the USA since 1977 to the development of their properties as one
piece of property.3 Any required development agreements would need to be recorded
2County staff currently does not consider lot of record approvals for parcels conveyed by the USA
to make the rest of the property a lot of record. As a result, all parcels that have not received
partition or subdivision approval would be considered to be a part of the federal parent parcel.
3Deschutes County obtained a similar parcel from the USA. It erroneously relied on a 1914
Agreement between the State and the USA that provided for the USA to transfer lands to private
parties as establishing an extremely large parcel and then divided that parcel to create a legal
parcel for its property. The agreement is not a deed or patent to land and did not create property
boundaries. The land from which Deschutes County received a patent is land that was never
patented by the USA. To obtain development approval in the absence of plat approval, Deschutes
County should have done what is nearly impossible — identify all contiguous land that the USA has
not patented, determine all parcels removed from the area without partition approval since April 6,
1977 and obtain the permission of all of those property owners to develop its property with a
sewage treatment plant.
— 4 — April 19, 2017
against the lot of record — something nearly impossible to achieve as they create binding
obligations on property owners.
CONCLUSION
The County's lot of record ordinance creates a real and likely insurmountable hurdle to the
development of properties acquired from the USA on and after April 6, 1977 if they have
not been subdivided or partitioned.
Belveron asks that you apply the analysis applied by Hearings Officer Ken Helm in the
2015 Pine Forest decision and find that deeds and patents from the federal government
create parcels lawfully and that they may qualify as legal lots of record if they meet one of
the five conditions specified in the Lot of Record definition of DCC 18.04.030.
All land in Deschutes County was initially obtained from the USA. It is our belief that it
is not in the best interest of Deschutes County to make transfers of federal land to local
government and private parties nearly impossible by refusing to recognize those properties
as lots of record. Such a policy will make it nearly impossible for the federal government
to exchange properties with private citizens who own unique and important pieces of
property within federal forest.
Thank you for your consideration of my concerns and point of view,
Sincerely,
Liz Fancher
Cc: W. Groves
client
file
DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBER: 247 -15 -000464 -CU
APPLICANT:
REQUEST:
Steve Runner
Pine Forest Development, LLC
Sunriver Resort Limited Partnership
P.O. Box 3589
Sunriver, OR 97707
Conditional use permit application to expand the Caldera Springs
Destination Resort ("Resort") to include the subject property. The
annexed property will include a maximum of 395 single-family
residences, a maximum of 95 additional overnight lodging units,
recreation facilities and additional resort core amenities. As part of this
application, the applicant seeks to modify the Caldera Springs
Conceptual Master Plan and ratio of single-family residences to
overnight lodging units from 2:1 to 2.5:1.
STAFF CONTACT: Anthony Raguine, Senior Planner
HEARING DATES: October 27, November 24 and December 15, 2015
RECORD CLOSED: December 29, 2015
I. STANDARDS AND APPLICABLE CRITERIA:
Title 18 of the Deschutes County Code ("DCC")
Chapter 18.40, Forest Use Zone — F2
Chapter 18.80, Airport Safety Combining Zone — AS
Chapter 18.84, Landscape Management Combining Zone — LM
Chapter 18.88, Wildlife Area Combining Zone — WA
Chapter 18.108, Urban Unincorporated Community Zone — Sunriver
Chapter 18.113, Destination Resorts — Destination Resort
Chapter 18.128, Conditional Use Permits
Title 22, the Deschutes County Land Use Procedures Ordinance
Title 23, The Deschutes County Comprehensive Plan
Chapter 23.84, Destination Resorts
Chapter 23.76, Energy
Oregon Revised Statute (ORS) Chapter 197.435 to 197.467
il. FINDINGS OF FACT:
A. Location: The subject property has an assigned address of 17800 Vandevert Road,
Bend, and is identified as tax lot 103 on Assessor map 20-11.
247 -15 -000464 -CU - Caldera Springs 1
B. Zoning and Plan Designation: The subject property is zoned Forest Use Zone ("F2").
It is within the Airport Safety Combining Zone ("AS") associated with the Sunriver Airport;
the Landscape Management Combining Zone ("LM") associated with Highway 97,
Vandevert Road and South Century Drive; and the Wildlife Area Combining Zone ("WA")
associated with deer migration range. The subject property is also mapped within the
Destination Resort ("DR") Combining Zone for Deschutes County.
C. Site Description: The irregularly shaped 614 -acre property is undeveloped with a
generally level topography. Vegetation on-site consists of a dense cover of lodgepole
and ponderosa pine trees. According to the applicant, the 60- to 80 -year-old trees are of
various sizes arranged in small groups and dense thickets, with about 25 percent of the
groups consisting purely of lodgepole pine. Understory vegetation is bitterbrush,
bunchgrasses, and typical high desert vegetation. Several dirt roads and the power line
right-of-way cross the site.
The site is approximately 250 feet west of Highway 97 at its closest point in the southeastern
corner. The property has frontage on South Century Drive along its southwestern property
line, and frontage on Vandevert Road along its southern property line.
D. Proposal: The applicant is requesting conditional use permit approval to expand the
Resort and include the subject property. The annexed property will include a maximum
of 395 single-family residences, a maximum of 95 additional overnight lodging units,
recreation facilities and additional resort core amenities. As part of this application, the
applicant seeks to modify the Caldera Springs Conceptual Master Plan and ratio of
single-family residences to overnight lodging units from 2:1 to 2.5:1. Additionally, the
applicant proposes a new access to the Resort from Vandevert Road.
The proposal includes two options detailed in the applicant's Exhibit A and A-1. Option 1
includes two areas of visitor -oriented accommodations ("VOA")/cluster housing, one in
the eastern portion of the annexation property and one at the south end of the property.
Option 2 also includes two areas of VOA/cluster housing, one at the north end of the
annexation property and one at the south end of the property.
The application includes a possible phasing plan, detailed on Exhibit A-2 and A-3, for
each Option discussed above. Each plan includes five to nine phases and an
anticipated 40 to 90 lots per phase. The exhibits indicate development of a phase every
one to four years as the real estate market dictates.
E. Surrounding Land Uses and Zoning: The site is bounded to the north by the Sunriver
Business Park on land zoned Urban Unincorporated Community Zone Sunriver —
Business Park District ("SUBP"), and by multi -family residential uses on land zoned
Urban Unincorporated Community Zane Sunriver — Multiple Family Residential District
("SURM"). To the east is the Burlington Northern Railroad. Beyond the railroad tracks
are vast tracks of undeveloped US Forest Service lands that are zoned Forest Use
("F1"), and Highway 97. To the south, across Vandevert Road are two undeveloped,
privately owned, properties zoned F2, and a residential subdivision zoned Rural
Residential ("RR10"). Along much of the property's western boundary is the Caldera
Springs Destination Resort. As noted above, the property's southwestern boundary is
formed by South Century Drive. Across South Century Drive are residential uses on
lands zoned F2, including the Crosswater development. To the northwest are residential
247 -15 -000464 -CU - Caldera Springs 2
uses in the Sunriver Resort on lands zoned Unincorporated Community Zone Sunriver —
Single Family Residential District ("SURS") and SURM.
F. Land Use History: The County approvals associated with the existing Resort are
summarized below.
Land Use Approval
Description
CU -05-07
Conceptual Master Plan ("CMP")
M-05-01
Final Master Plan ("FMP")
TP -05-961
Tentative Plan for up to 320 single-family residential homesites,
various future development tracts, rights-of-way, and easements for
infrastructure
SP -05-53
Site Plan for the Resort's first phase including 150 separate rentable
units for visitor lodging; eating establishments for at least 100
persons; meeting rooms for at least 100 persons, nine -hole short golf
course; three practice golf holes; practice putting green; lake; and
clubhouse which will incorporate the eating establishments and
meeting rooms
SP -06-14
Site Plan for the Resort amenities including fitness/pool center, pool,
basketball court, play area, tennis courts, lake expansion, relocated
parking area, lawn sports area, and pavilion
FPA -06-12
Final Plat approval for TP -05-961
SP -06 -52/V -06 -Site
16/MA-06-23
Plan for overnight lodging units (OLUs) within Tracts 2 and 3;
Minor Variance to reduce the parking area setback from 250 feet to
225 feet
SP -06-55
Site Plan for a pump station associated with the Resort water feature
SP -06-61
Site Plan for OLUs in Tract 1, roadway and driveway areas, and
pedestrian bike paths within Tracts 1, 2 and 3 of the core Resort
area; OLUs provided as lock -off units; A total of 160 OLUs will be
provided within Tracts 1, 2 and 3; This Site Plan approval is intended
to amend and supplement SP -05-53
MC -07-2
Modification of the Dimensional Standards approved under the CMP
and FMP, to include dimensional standards for the Overnight
Lodging Cottage Lots
247 -15 -000464 -CU - Caldera Springs
3
17. Concern regarding the cost to replace the Sunriver Sewage Treatment Plant due
to increased use
18. Concern regarding increasing nitrite concentrations due to unsewered lots
19. Appropriateness of clustered communities between Bend and La Pine
20. Expansion will provide positive impact to tourism for the region
Notice: The applicant submitted a Land Use Sign Affidavit indicating the land use action
sign was posted on the property on September 3, 2015. A notice of the applications was
mailed on September 11, 2015. Comments from the public and from public agencies
are detailed above. Notice of the public hearing was published in The Bulletin on
October 4, 2015, and mailed to parties of record on October 5, 2015.
J. Lot of Record: The applicant made the following argument on compliance with the
County's lot of record requirement:
Prior to 2006 the subject property was owned by the United States Government, acting
by and through the United States Department of Agriculture aka, the US Forest Service.
Pursuant to the, Bend Pine Nursery Land Conveyance Act of 2000 (P.L.106-526: 114
Stat. 2512), Congress authorized the sale of a number of isolated USFS parcels. The
subject property was one such isolated parcel (Tract C Administrative Sale; DES No.
178, Parcel A). The property was conveyed to Pine Forest Development, LLC on
November 14, 2006 pursuant to a quitclaim deed, a copy of which is attached. The deed
was recorded on November 21, 2006 (2006-77006), in the real property records of
Deschutes County.
The subject property is 617.27 acres, more or Tess, in size, exceeding the 5,000 square
foot minimum. As a federally owned parcel, it was not subject to any state or county
subdivision requirements. The subject lot of record was created by the deed referenced
above and was recorded in the real property records of Deschutes County. Only one
legal description was provided, consequently, the subject property contains only one
legal lot of record.
Staff noted that a Hearings Officer and the Board of County Commissioners made a
finding that the subject property is a legal lot of record for the rezone approval of the
property.2
COLW argued that the subject property is not a lot of record for two reasons. First, that
because the parcel was federally owned and transferred to the applicant, it did not meet
the County subdivision or partition rules. COLW argued that this position is supported by
a prior Hearings Officer decision in Thompson. Second, even though a prior zone
change approved by the BOCC found the parcel to be a lot of record, that decision is not
determinative.
The Hearings Officer agrees with the applicant. As for the BOCC's prior recognition of
the lot, no party argues that the BOCC somehow got that decision wrong in 2006 when
2 Reference land use file number ZC-06-3.
247 -15 -000464 -CU - Caldera Springs 9
the property was rezoned. Of course, the time to appeal that decision is long past.
Even if Thompson militated for a different outcome, which it does not as explained
below, the Hearings Officer considers that prior decision to be the BOCC's interpretation
as to the application of the County's lot of record criteria to the subject property, and
absent any colorable argument that the BOCC erred in that decision, the Hearings
Officer will be adhere to it. As for the application of Thompson, I agree with the applicant
that the facts in that case were significantly different than those at issue here. First,
while Thompson sought to recognize a lot that had been transferred from the federal
government, the applicant's primary argument was that the federal process that led to
the transfer preempted all other local regulation. Here, the applicant does not so argue,
and the transfer appears to be a simple and straight forward quit claim deed conveyance
which fits at least one of the County's lot of record criteria. Second, the applicant in
Thompson sought to have a substandard size lot recognized for the F-1 zone — in order
to have the lot qualify for a lot of record forest dwelling under ORS 215.700. Again, that
is not the case with this application as there is a single lot of approximately 617 acres,
and the applicant is relying on the existing DR designation as the basis for the proposal.
For these reasons, the Hearings Officer finds that the subject property is a legal lot of
record under DCC 18.04.030(A)(3).
K. PROCEDURAL HISTORY: A public hearing was held on October 27, 2015.
The Hearings Officer provided the statements required by ORS 197.763. There
were no ex parte contacts to report, and no party challenged the Hearings
Officer's fitness to conduct the hearing.
Staff provided a PowerPoint outlining the proposal. Several transportation issues
were discussed including an explanation of the traffic counts near Vandevert
Road and reasons why the prior counts and seasonal factors were still current
enough to provide reliable evidence.
The applicant's attorney, Steve Hultberg, provided a short history of the existing
resort and outlined the proposed expansion. He explained that the proposal was
not a standalone resort, but an expansion of the existing resort. The proposal
would encompass about 395 single family residences which is approximately
43% of what would otherwise be permitted. A maximum of 95 newovernight
units were also proposed. He noted that the wildlife plan for the expansion had
received a favorable review from the Oregon Department of Fish and Wildlife.
However, more work was needed on the proposal's wildfire contingency plan.
Sewer and water would rely on existing systems, although the applicant
acknowledged that service expansion might be needed for the new portion of the
resort and, that if so, the resort would pay for its proportionate share of that cost.
Wendy Wente, the applicant's wildlife biologist, explained a 125 acre set aside
built into the proposal. The east — west wildlife corridor would be preserved, she
said, primarily to benefit mule deer. With the open plan of the development and
preservation of existing native plants, she concluded that the proposal met the
"no net Toss" of habitat standard required by the DCC.
Matt Kittelson added some transportation information addressing the interchange
at Hwy 97 and S. Century drive, which would serve the new development. Even
with the additional trips, he concluded that the intersection would operate at
247 -15 -000464 -CU - Caldera Springs 10
BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES COUNTY
In the Matter of the Application of
Kelly and Kathleen O'Neill for a Lot
of Record Determination on Tax Lot
22-10-14BD 1600
)
)
)
I. PRELIMINARY FINDINGS
LR -93-47
FINDINGS AND
DECISION
1. APPLICANTS: Applicants are Kelly and Kathleen O'Neill,
52476 Lost Ponderosa, La Pine, Oregon 97739.
2. THE PROPERTY: The subject property is a 1.25 acre
tract located on Hinkle Road in La Pine, and is identified on the
Deschutes County Assessor's Map 22-10-14BD as tax lot 1600.
3. ZONING: The property is zoned Rural Service
Residential (RSR -M) and is designated as Rural Service Center on
the Deschutes County Comprehensive Plan.
4. REQUEST AND APPLICATION: The applicants request that a
Lot of Record determination be made for the subject property.
The Board finds that the applicants submitted an Assessor's
tax card and copies of deeds for the subject property in support
of the application, as well as copies of a BLM township "plat"
and a supplemental BLM township "plat." The prior owners of the
property, the Baldwin -Herndon Trust interests provided assistance
to the applicant by hiring an attorney, both at the Hearing
Officer level and at the Board level and by offering historical
documents and testimony to assist in obtaining a determination
that the subject property is a lot of record, as defined by
County ordinances.
5. ISSUES ON APPEAL. This appeal involves whether tax
lot 22-10-14BD-1600, owned by Mr. and Mrs. O'Neil, constitutes a
parcel that the County is required to recognize as a legal lot of
record under the County's zoning ordinance. The specific issue
is whether the County is required to recognize internal divisions
of land units described only in a 1953 BLM survey that pre -dates
County land division regulations and then with respect to the
subject parcel first conveyed in a 1993 conveyance from the State
of Oregon after the County's land division regulations were
adopted.
The Hearing Officer supported staff's recommendations and
concluded that under County ordinances the subject 1.25 acre lot
is deemed to be still joined at its southeast corner to tax lot
22-10-14DB-1300 and that the property does not constitute a lot
of record under the County's ordinances. Applicants have
appealed from that determination.
Page 1 - Findings & Decision (LR-92-47/0'Neill)
The issues are somewhat complicated because of assertions
involving the interplay between County ordinances, state land use
and conveyancing laws and federal public land management laws and
the long -involved history of the Baldwin heirs' attempts to
obtain lands due them from the State of Oregon. In addition, the
issues go beyond just this particular lot of record
determination, since the subject tract of land is one of 48
similar tracts described by a BLM "subdivision plat" in the La
Pine area initially conveyed by the BLM to the State of Oregon in
a single conveyance document.
The dispute in this case involve primarily legal issues and
not on issues of fact.
6. PROCESS: Applicants submitted an application for a lot
of record determination on September 17, 1993. A staff report
was issued on December 23, 1993 determining that the subject lot
did not satisfy the lot of record definition and recommending
denial. The matter was set for a hearing before the Hearing
Officer on February 24, 1994, at which time testimony was taken
from Assistant County Counsel Bruce White, Associate Planner
Stacy Warren for the County, and Attorney Win Francis, H.R.
Herndon and Don Coulter, appearing for the Baldwin -Herndon Trust
on behalf of the applicants.) The record closed on March 29,
1994.
Following the Hearing, the Hearing Officer denied the
application by decision dated May 5, 1994. In her decision, the
Hearing Officer found that the subject lot did not constitute a
separate lot of record under the County's ordinance and was still
joined at its southeast corner to tax lot 22 -10 -14 -BD -1300.
An appeal to this Board followed. A hearing was held before
the Board on June 29, 1994, with the record left open until July
11, 1994 for the applicant to supplement the record. Staff had
until July 18, 1994 to respond. After considering the record the
Board made a preliminary decision to deny the application on July
20, 1994.
II. .APPLICABLE CRITERIA
The Board finds that the applicable criterion from the
County's zoning ordinance is the "lot of record" definition set
forth in DCC Section 18.04.030. The Board's finding that the lot
of record definition is applicable to this property results from
1 For the purposes of this decision, the Board's use of the
term "applicant" in this decision will refer to representatives of
the Baldwin -Herndon Trust as well as the actual applicants in this
case.
Page 2 - Findings & Decision (LR-92-47/O'Neill)
interpreting the language of the lot of record definition and
language contained in DCC 18.08.010.
The Board finds that under DCC 18.08.010(1), a "lot" within
the County can be used only as Title 18 permits. By the
operation of the zoning ordinance, "lots" are the essential land
units upon which the ordinance is founded. For example, each
zone sets forth minimum "lot" sizes and coverage requirements,
including the RSR -M zone. See, e.g., DCC 18.68.050, 18.68.060.
The express language contained in the last sentence of the "lot
of record" definition reads the qualifications contained therein
into the definition of the terms "lot" or "parcel" as used in the
zoning ordinance. DCC 18.04.030.
Under this interpretation, the County will not recognize a
unit of land for planning purposes under Title 18 of the
Deschutes County Code unless it falls within the Title 18
definition of a "lot of record," except in limited instances
described below. The lot of record definition is the exclusive
definition of lots that will legally be recognized, except in
certain instances where laws outside the lot of record definition
requires recognition of a particular unit of land.
The Board notes, as will be detailed further on in this
decision, that other provisions of law, including state
subdivision law and state conveyancing law, federal public land
law and issues involving federal supremacy have been brought to
bear on this case to determine whether the result dictated by the
County's lot of record definition should be followed.
III. FINDINGS OF FACT
1. THE PROPERTY: The subject property is located on
Hinkle Road in La Pine, and is identified on the Deschutes County
Assessor's Map 22-10-14BD as tax lot 1600.
The subject property was first described in a federal survey
entitled "Supplemental Plat of Section 14" dated April 21, 1953
as Lot 75 and a federal document entitled "Supplemental Plat"
dated August 21, 1956. Both federal documents indicate that Lot
75 is 1.25 acres. These plats do not subtract area for the
right-of-way for Hinkle Road.
The subject tract is one of 70 tracts totalling almost
638.72 acres transferred by the BLM to the State of Oregon
(Division of State Lands) by a patent dated April 6, 1993 (Serial
No. 3164). The patent conveyed the tracts in bulk with other
federal lands, including "lots" 1 (portion) 2, 3, 4, 5 (portion),
6, 7, 14, 44, 45, 52, 62, 65, 75, 82, 83, 84, 88, 89, 94, 95,
100, 102, 103, 108, 113, 114, 117, 118, 119, 124, 125, 126, 127,
129, 130, 131, 133, 136, 137, 138, 139, 141, 142, 143, 146, 147,
Page 3 - Findings & Decision (LR-92-47/O'Neill)
149, 152, 153, 154, 156, 157, 158, and 159 from a small tract
survey described further below. The subject tract is "lot"
number 75 from the small tract survey.
2. HISTORY OF TSE SUBJECT TRACT:
A. Federal Surveys/Small Tract Act
The federal government originally held title to much of the
land in the La Pine area. Between 1944 and 1956, the BLM
initiated 4 successive surveys covering a 240 -acre portion of
Section 14, Township 22S, R. 10 E. to describe 156 small
tracts.2 Under federal public land law, these surveys were
known as "plats." The subject tract is shown as Lot 75 on the
plat that was certified by the BLM on April 21, 1953. The Board
incorporates by reference Hearing's Officer's Opinion Finding No.
6, regarding the details of the various plats.
These tracts were surveyed under a federal public land law
known as the Small Tract Act for eventual disposition, either by
sale or lease, to individual owners. See 43 USC Sec. 682a. The
purpose of the Small Tract Act was to make federal lands
available to individuals for residence, recreation, business, or
community site purposes. Id. The Act prohibited any person or
organization from purchasing or leasing more than one tract,
except upon a showing of good faith and reasons satisfactory to
the Secretary of the Interior. Id. The Board finds from
information supplied by the Applicant that these particular
tracts were surveyed for potential disposition to servicemen
returning from World War II. The Small Tract Act was repealed in
1976.
The Small Tract Act "plats" show a portion of Section 14 of
Township 22 S, Range 10 E. Willamette Meridian, to be gridded
into a block of abutting rectangular tracts, without any
provision for access or utility easements, other than reference
to two then existing County roads. The Small Tract Act
authorized the federal government, when granting patents to Small
Tract lands to reserve easements necessary for access and
utilities. 43 USC Sec. 682a.
2 The tracts described by the surveys are numbered 1
through 156. The most common lot size is 1.25 acres and the second
most common is 2.5 acres in size. Lots range in size from 1.25 to
4.74 acres, with the exception of Lot 1 which is 9.92 acres. These
tracts cover the core area of the La Pine rural service center.
Page 4 - Findings & Decision (LR-92-47/O'Neill)
The Board finds from Deschutes County Surveyor Jeff Kern
that these BLM surveys were never officially "filed" as part of
the County's survey filing system but that they were routinely
provided to the County by the BLM as a reference. The surveys
were filed in the Portland office of the BLM, as prescribed by
BLM regulations.
B. Use of this Tract in the 19508.
The Board finds from information supplied by the Applicants
that in the 1950s, the tract was leased by the BLM to a private
party for a period of less than two years, from January 24, 1955
through December 31, 1957. During that entire period, the
property remained in federal ownership.
None of the small tracts that have been conveyed to the
Baldwins have been leased since 1959.
C. Identification of lands by the Heirs of George
Baldwin
This property was identified by the heirs of George Baldwin
in the early 1960s for acquisition through the State of Oregon to
settle a longstanding claim held by the Baldwin family against
the State of Oregon. Explanation of the Baldwin family's
involvement with this tract and how it came to be disposed of by
the BLM requires a discussion relating to the history of public
lands in Oregon and starts with lands not involving the subject
tract.
In 1907, the State of Oregon sold an entire township section
of timber lands in Clackamas County to Mr. George Baldwin. The
lands purportedly sold by the state were state school lands, to
which the State of Oregon had rights by the Admission Act of
1859. (The 1859 Admission Act gave rights to the State of Oregon
upon statehood to lands falling within Sections 16 and 36 of each
township.)
Unfortunately for Mr. Baldwin, the State did not have title
to the land it sold to him. At the time Mr. Baldwin bought the
Clackamas County land, a survey of the land had not been
completed by the federal government. The land had earlier been
included within the boundaries of the Cascades Forest Reserve,
the predecessor of the modern day National Forest. Designation
of federal public lands as being within Forest Reserve boundaries
had the effect of reserving lands within such boundaries from
disposition by the federal government. In 1916, the U.S. Supreme
Court ruled in United States v. Morrison, 240 US 192, 60 L Ed
599, 36 S Ct 326 (1916), that title to Oregon's school lands
could not pass to the state until a survey had been completed.
Thus, Mr. Baldwin had purchased land that the state did not own
Page 5 - Findings & Decision (LR-92-47/O'Neill)
at the time and which the federal government, by virtue of the
establishment of the Forest Reserves, could not dispose of.
It was a common occurrence for designated school lands to
become unavailable to the states - either because of decisions by
the federal government to reserve or retain such lands for
purposes such as forest reserves or hydropower sites or because
of disposition to third parties under homesteading or mining
laws. To make up for such losses by states of their school
lands, Congress passed legislation in 1891 known as the Indemnity
Act by which the states could select other lands in lieu of the
school lands that had become unavailable. See 43 USC Sec. 851.
Baldwin, and eventually his heirs, had a claim against the
State of Oregon for the value of the lands purchased by Mr.
Baldwin to which the State did not have title. Under legislation
passed by the State of Oregon, claims such as that of Mr. Baldwin
and his heirs were to be settled in-kind, by making a claim
against lands that the State of Oregon was to receive from the
federal government in lieu of the school lands lost by
disposition or retention by the federal government.'
3 That legislation was enacted in 1923 as L. 1923, c. 285.
That statute was codified in the Oregon Revised Statutes as ORS
273.620 and as set forth in 1967 read as follows:
"273.620 Adjustment of erroneous pre -1916 sales of
school lands.
(1) Upon the execution and delivery to the State Land
Board by any grantee to whom payment has not
heretofore been made, and to whom the State Land
Board prior to February 21, 1916, erroneously
conveyed various parcels of land in sections 16 and
36 to which the title of the state was found by the
State Land Board to be defective, or the record
successor in interest of such grantee, of an
instrument is writing sufficient to annul the
convenyance of the state to such grantee or to
reinvest the state with its original claim, right,
title or interest in the land described in such
conveyance, and upon payment to the State Treasurer
of $2.50 per acre for each acre of land so conveyed
and the title to whcih was so found to be
defective, and upon a good and sufficient release
by such grantee or his record successor in interest
of all cliams for any refund of the purchase price
paid to the state for such land, the State Land
Board shall cause to be selected under the
provisions of sections 851 and 852, Title 43 of the
Page 6 - Findings & Decision (LR-92-47/O'Neill)
In the early 1960s the Baldwin heirs became interested in
asserting their claim. Whether or not they had made earlier
attempts to do so is unknown to the Board and is irrelevant to
this decision. At that time, the State of Oregon believed that
it was entitled to obtain lands from the federal government as
indemnity lands. Pursuant to former ORS 273.620, the Baldwin
heirs applied to the State Land Board on June 19, 1964 to have
their claim settled by lands the state was to receive from the
federal government as indemnity lands.
In 1966, the Prineville District of the Bureau of Land
Management (BLM) was directed to help the Baldwin heirs identify
lands that the State could apply for, for ultimate transfer to
the Baldwin heirs. Among the lands identified by the BLM for
possible selection were lands identified in the Small Tract Act
surveys, including the subject tract. According to the
applicants, the BLM had stopped selling these Small Tract Act
lands in 1962, because of the burdensome nature of the
requirements it had to go through to transfer the lands under the
Small Tract Act.
United States Code, as mended by the Act of
Congress approved February 28, 1891, for the
benefit of such grantee or his record successor,
such lands subject to such right of selection as
designated by such grantee or his record successor,
not exceeding the quantity so erroneously conveyed
by the State to such grantee.
(2) Upon approval of such selection and upon receipt by
the state of evidence that the title to such
selected lands has passed to the state, such
grantee or his successor shall be entitled to a
conveyance thereof from the state.
(3)
Any applicant who has complied with subsection (1)
of this section and has thereby become entitled to
have such right of selection exercised on his
behalf is entitled to a certificate to that effect
from the State Land Board.
(4) All moneys recieved under this section shall become
a part of the Common School Fund."
ORS 273.620 was repealed in 1967, but a savings clause was
included for pending transactions. The Baldwin family heirs held
one such pending claim for compensation.
Page 7 - Findings & Decision (LR-92-47/O'Neill)
D. Application of the State of Oregon for Indemnity
Lands/Classification for Disposition
On April 4, 1968, the State made an application for
indemnity lands on behalf of the Baldwin heirs. Application No.
OR 3164, List 1787, included 70 tracts, totalling 638.72 acre of
land (equivalent to one section of land), all selected for
ultimate transfer to the Baldwin heirs. The application and list
included 48 tracts (totalling about 82.5 acres) described in the
Small Tract Act surveys then remaining in federal ownership. The
remainder of the acreage was made up of other tracts ranging in
size from 40 to 160 acres described in other public land surveys.
An Initial Classification Decision, dated September 9, 1968,
provided by the Applicants, indicates that as part of the process
of responding to Application OR 3164, the BLM classified all land
on the list under the Classification and Multiple Use Act as
available for disposition as in -lieu selection lands.'` The
notice also stated that the initial decision was "subject to the
exercise of supervisory authority by the Secretary of the
Interior for the purpose of administrative review." A 30 -day
notice period was provided, which resulted in one objection to
the proposed classification decision. It is unclear from the
documents presented by the Applicants whether a final
classification decision was made in 1968 and the Board is unable
to find from the record that the 1968 classification became
final.'
E. BLM Denial of Applications/Federal litigation
The transfer of lands from the BLM to the State of Oregon
was not completed in 1968. In May 1979, while processing
Application OR 3164, the State BLM Director determined that the
State had overdrawn its indemnity lands account with the federal
government and suspended all pending and future applications for
indemnity lands until an audit of such lands could be conducted.
This suspension included Application No. OR 3164. Following two
audits, the BLM determined that the state was overdrawn on its
selection of indemnity land, and on April 4, 1973, the State's
application for indemnity lands, including Application No. OR
3164, was rejected by the BLM.
" The document makes no reference to the Small Tract Act.
5 It should be noted that the 1968 classification process was
undertaken under the Classification and Multiple Use Act, which was
repealed by the Federal Land Policy Management Act of 1976. It is
not known what, if any, effect that repeal might have had on the
1968 classification process.
Page 8 - Findings & Decision (LR-92-47/O'Neill)
Appeals and litigation followed as to whether the State was
entitle to receive additional indemnity lands. The State's
position was finally upheld by a federal appeals court in 1989 in
Oregon v. Bureau of Land Management, 876 F.2d 1419 (9th Cir.
1989). The court found that the state still had acreage to its
credit in its in -lieu account with the BLM. This allowed
Application OR #3164, made by the State on behalf of the Baldwin
heirs, to be reinstated and move forward.
F. Intervening Federal and County Regulations
In the meantime, the legal landscape had changed. New laws
had been enacted, such as the Federal Land Policy Management Act
of 1976 (FLPMA) (which repealed the Small Tract Act and replaced
the Classification and Multiple Use Act). The National
Environmental Policy Act (NEPA), which requires environmental
impact statements, had also been enacted.
The BLM applied such new legislation and its new land use
plan in determining in 1992 whether to transfer to the State of
Oregon the lands applied for under Application OR 3164, including
the subject tract.
Locally, the County had enacted land use laws, including
land division laws. The predecessor of the current subdivision
ordinance became effective in 1970. The County's partition
ordinance became effective in 1977.
G. BLM Land Management Plan Classification/Interim
Management
The Brothers - La Pine Resource Management Plan, adopted
pursuant to FLPMA, classified the land as suitable for
disposition to the state.
In the interim, the BLM continued to make management
decisions on the tracts listed on Application OR 3164. Timber
was sold on some tracts and easements were granted on some of the
tracts surveyed under the Small Tract Act in favor of such
entities as the La Pine Special Sewer District and Crestview
Cable TV Company. The Baldwin heirs claim that the BLM had no
authority to make such management decisions and are currently
pursuing a claim against the federal government on that issue.
H. Resolution of Federal Litigation/Classification of
Lands for Disposition
Page 9 - Findings & Decision (LR-92-47/O'Neill)
Resolution of the federal lawsuit in 1992 allowed the state
to proceed with application OR 3164 for selection of indemnity
lands. The BLM reinstated Application OR 3164.6
The BLM proceeded with the public process dictated by NEPA
to determine whether the lands applied for on Application OR 3164
should be granted to the State under the Indemnity Act. Pursuant
to NEPA, the BLM prepared an Environmental Assessment in making
its determination to transfer the property to the State. On
December 12, 1992, the BLM approved an Environmental Assessment
finding that no significant environmental impacts would result
from transferring the property to the State for eventual
disposition to the Baldwin heirs.
On January 21, 1993, the BLM issued a decision approving the
transfer of the lands listed on Application OR 3164 to the State
of Oregon. This decision stated that the lands had previously
been classified under Section 7 of the Taylor Grazing Act (43 USC
315f) as suitable for transfer to the State and that the State
had met all requirements for selection. The decision allowed the
application and stated that a clearlist would be prepared,
subject to "all valid existing rights."
The application of post -1968 law to the transfer may suggest
that the BLM did not necessarily regard that transfer of these
particular lands to the Baldwin heirs was required by law.
I. Deed of Lands from BLM to the State of Oregon/Deed
of Land to Private Parties.
By a clear list dated April 6, 1993, the BLM transferred to
the State of Oregon the tracts applied for under Application OR
3164, including the subject tract. The subject tract was
described in that clear list only as Lot 75.7 The clear list
6 Applicants have disputed the County's use of the term
"reinstated" to describe what happened to Application 3164 after
resolution of the litigation. The Board finds that use of that
term is proper, based upon BLM documents and the use of that term
by applicants' own Washington, D.C., attorney.
' The clear list identifies a total of 638.72 acres of lands
for transfer to the State of Oregon, all as part of the same list.
In addition to the tracts identified by the BLM surveys made under
the Small Tract Act, the clear list includes land tracts described
by sectional breakdown pursuant to BLM surveys unrelated to the
Small Tract Act. Federal regulations governing grants to states as
in lieu selections require that selected lands be described in
accordance with the official plats of survey. 43 CFR Sec.
2621.1(d)(1).
Page 10 - Findings & Decision (LR-92-47/O'Neill)
was recorded in the Deschutes County Deed Records on June 1,
1993.
Those same lands were subsequently deeded in bulk by the
State of Oregon on July 16, 1993 to representatives of the
Baldwin heirs. The tracts were then deeded in bulk to the
Baldwin -Herndon Trust on July 22, 1993. These conveyances convey
all 70 properties applied for under Application No. OR 3164, List
No. 1787. These conveyances described the tracts in the same
manner as they were described in the clear list.
On September 3, 1993, the subject lot was conveyed by the
Baldwin -Herndon Trust separately to Kelly and Kathleen O'Neil.
See Exhibit 13. The property is described in the O'Neill deed as
follows:
"Government Lot 75 located in the Southeast
Quarter of the Northwest Quarter (SE 1/4 NW 1/4)
of Section Fourteen (14), Township twenty-two (22)
South Range Ten (10) East of the Willamette
Meridian, Deschutes County, Oregon."
A 30 -foot right-of-way was reserved in the deed for roadway and
utility purposes. This deed was the first conveyance in which
the subject tract was not conveyed in bulk with other property.
3. RECOGNITION OF TRACT BY COUNTY. County records show
that the subject tract is listed on the assessor's rolls as a
separate tax lot. As is discussed below, recognition by the tax
assessor by designating a separate tax lot number does not
constitute recognition of a tract for purposes of land use
planning. The County has not granted any land use, building or
environmental approvals on the property. The tract is not part
of any subdivision or partition approval.
4. ADJACENT PROPERTIES: There are eight parcels that
adjoin the subject property. The Board makes the following
findings with regard to those properties, from information
gathered from the records of the Deschutes County Tax Assessor
and County Clerk:
A. Tax Lot 900 adjoins the north boundary of the subject
property. This lot was first conveyed as a separate
lot and is first described in County records by a
warranty deed dated June 7, 1971 that conveyed a life
estate in the property to Violet Hinkle. The property
contains improvements, including a dwelling constructed
in 1974. This lot is a part of Lot 68 of the US
Government plats.
Page 11 - Findings & Decision (LR-92-47/O'Neill)
B. Tax Lot 901 adjoins the north boundary of the subject
property. The lot is a part of Lot 68 of the US
Government plats. This lot was first described as a
separate lot in a warranty deed dated May 19, 1967.
The lot contains a dwelling constructed in 1976.
C. Tax Lot 1000 is located to the northwest of the subject
property and shares a corner point with Tax Lot 1600,
the subject property. Tax Lot 1000 is also known as
Lot 69 of the federal plats. This property contains a
dwelling constructed in 1958 and is first described as
a separate lot in County Clerk deed records in an
undated US government land patent recorded in Volume
123, Page 673.
D. Tax Lot 1500 adjoins the west boundary of the subject
property and is a part of Lot 74 of the federal plats.
This lot is first described as a separate lot in a
warranty deed dated May 5, 1960 and does not contain
any improvements.
E. Tax Lot 1800 adjoins the southwest corner of the
subject property. Tax Lot 1800 is also known as
Government Lot 77. This lot contains a dwelling
constructed in 1972. The lot was first conveyed as a
separate lot in a patent dated August 8, 1960.
F. Tax Lot 1700 adjoins the southern boundary of the
subject property. It is also known as Government Lot
76. The lot contains a dwelling constructed in 1958
and is first shown in County records in a warranty deed
dated May 4, 1970.
G. Tax Lot 1300 adjoins the southeast corner of the
subject property. The property is first shown in
County records in an Indemnity Selection List dated
April 6, 1993. The property is also known as
Government Lot 136. This lot is owned by Kelly and
Kathleen O'Neill, the applicants in the present case.
This tract is contiguous to the subject tract at a
point on the southeast corner by virtue of the fact
that the BLM survey shows these tracts to be contiguous
at a point, with Hinkle road lying in an easement along
the border of each property.
H. Tax Lot 1200 adjoins the eastern boundary of the
subject property. It is Lot 135 of the US plats. The
property contains a dwelling constructed in 1958 and is
first found in County records in a bargain and sale
deed dated June 7, 1975.
Page 12 - Findings & Decision (LR-92-47/O'Neill)
5. NATURE OF SURROUNDING AREA: The area surrounding the
property is comprised of other tracts that were identified by the
BLM's Small Tract Act surveys. This area covered the core area
of the La Pine rural service center. According to applicants, by
1962 the BLM had disposed of or arranged for the disposition of
all the Small Tract Act tracts except the 48 lots that were
ultimately transferred to the Baldwin -Herndon Trust and 4 tracts
that were reserved for creation of a community park.
None of the Baldwin tracts have improvements on them. Many
of the Small Tract Act lots that were disposed of prior to the
early 1960s do have improvements on them. Some of those
improvements were characterized by one area resident to be little
more than hunting cabins, with substandard sanitary facilities.
There was testimony that to protect the water supply in the area,
it is essential to annex this area into the La Pine sewer
district.
Although the subject parcel is on a paved road, many of the
Baldwin properties, particularly those to the east of Hinkle
Road, are served only by unpaved, ungraded roads. The applicants
acknowledged that there is a need to put roads in to access many
of these properties. In addition, the applicants acknowledge
that the Baldwin tracts are subject to a 16 1/2 -foot right of way
(for a total right of way of 33 feet) that would need to be
expanded to 30 feet on each lot to meet the County's 60 -foot road
right-of-way standard. Although the applicants testified that
the Baldwin trust would be willing to grant the 60 -foot right-of-
way, there was no discussion as to what standards any such roads
would be built to or when they would be built.
IV. BACKGROUND OF LOT OF RECORD PROVISION
The lot of record provision is found in the definition
section of the County Zoning Ordinance. The language is set
forth below in Section V of this decision. As explained in
Section II above, under the County Code, no use can be made of a
property unless the property constitutes a lot of record.
A. History
The County has had a lot of record provision in its
ordinances since 1979. At that time, there was a provision that
required a lot of less than the minimum lot size to have been
created through a partition or a subdivision process before the
County would recognize it. See former Section 6.020(3) of PL -15,
the Deschutes County Zoning Ordinance. In other words, a lot of
less than the minimum lot size would not be recognized for
purposes of development if it had simply been created by a deed
or land sales contract.
Page 13 - Findings & Decision (LR-92-47/O'Neill)
A specific lot of record definition was included as part of
the zoning ordinance in 1986. That lot of record provision
appears to have been modeled after the definition of "parcel"
that was added by the Oregon Legislature to ORS 215.010 in 1985.
As a matter of practice, that lot of record definition was
applied to all units of land in the County before a use of the
land was allowed. In 1991, the lot of record definition was
specifically amended to state that as used in the zoning
ordinance the terms "lots" or "parcels" referred to lots of
record.
The only previous time the Board has reviewed a lot of
record question was in 1989, when the Board denied a lot of
record determination requested on a 5 -acre tract that was part of
the Atkins property off of Wilt Road near Sisters. The property
owner had filed a survey with the County Surveyor in 1963 showing
a 280 -acre tract divided up into 58 tracts of land of slightly
more than 5 acres. The Board found that a survey filed with the
County Surveyor did not in and of itself create any separate
units of land and that since the subject tract had been deeded by
the Atkins family after the date of the County's partition
ordinance became effective, the Board refused to recognize the
lot as a legal lot. The County's position was upheld before the
Land Use Board of Appeals (LUBA) and the Court of Appeals.
A copy of the Board's decision in the Atkins case is
included in the record.
B. Purpose of Lot of Record Provision
The general purpose of the lot of record provision is to
prevent recognition of land tracts that were created outside of
applicable County land division proceedings. The County's land
division process for partitions and subdivisions encourages the
orderly division and development of land, giving consideration to
such factors as density requirements, access, necessary services
and availability of infrastructure to serve newly created
parcels. Such factors are often given short shrift when land
divisions are made through informal means, such as by attempting
to divide land by surveying and then deeding off land tracts
described by the survey.
A review of the 48 tracts shown on the BLM surveys involved
in this case shows why this is good policy. Many of these tracts
are unserviced and do not have presently have developed access.
Access easement widths do not meet County standards.
C. The Lot of Record Provision
The County's lot of record provision is set forth below. It
lists which units of land the County will recognize as separate
Page 14 - Findings & Decision (LR-92-47/O'Neill)
and distinct tracts of land for land use planning purposes. This
list is the exclusive list of lots that will be recognized by the
County as lots of record.' Absent some reason arising outside
the lot of record provision, the County is not required to
recognize other tracts of land as lots of record.
To the extent there are exceptions to this list, those
exceptions are imposed by legal considerations outside of the
ordinance. There are two such exceptions that the County has
routinely recognized:
(1) Instances in which the Community Development Department
has inadvertently issued a permit, such as a septic permit, on
property not otherwise qualifying as a lot of record; and
(2) Instances in which the federal government has severed
individual parcels from the public lands by patent.
This case is the first time that an instance of this nature
has arisen under the lot of record provision. Because of the
peculiar facts in this case, it is not likely that such an
instance will arise again.
Failure to achieve lot of record recognition would require
that the subject tract go through the County's partition or
subdivision process. At 1.25 acres, the subject tract is above
the minimum lot size for the RSR -M zone, so it would be possible
to divide it off from tax lot 1300 through a partition.
The lot of record provisions that will be applicable to this
case are the provisions concerning deeds or land sale contracts
and the exclusion of filed surveys from being recognized as
creating lots of record.
V. APPLICATION OF LOT OF RECORD DEFINITION
A. Lot of Record Definition.
The Title 18 lot of record definition reads as follows:
8 Applicants attempted to argue that the County list could
not be regarded to be exclusive, pointing to the possibility of
lots being created through judicial partitions. With respect to
judicial partitions, the Board finds, as noted by County Legal
Counsel in its memo of March 22, 1994 that it has been the policy
of the County for some time to not recognize parcels created by
judicial partitions as lot of records. This is also supported by
legislative history behind changes in the definition of "partition"
in ORS Chapter 92.
Page 15 - Findings & Decision (LR-92-47/O'Neill)
"Lot of Record.
a. A lot or parcel at least 5,000 square feet in area and
at least 50 feet wide, which conformed to all zoning
and subdivision or partition requirements, if any, in
effect on the date the lot or parcel was created, and
which was created by any of the following means:
1. By partitioning land as defined in ORS
Chapter 92;
2. By a subdivision plat, as defined in ORS
Chapter 92, filed with the Deschutes County
Surveyor and recorded with the Deschutes
County Clerk;
3. By deed or contract, dated and signed by the
parties to the transaction, containing a
separate legal description of the lot or
parcel, and recorded in Deschutes County if
recording of the instrument was required on
the date of the conveyance. If such
instrument contains more than one legal
description, only one lot of record shall be
recognized unless the legal descriptions
describe lots subject to a recorded
subdivision or town plat;
4. By a town plat filed with the Deschutes
County Clerk and recorded in the Deschutes
County Record of Plats; or
5. By the subdividing or partitioning of
adjacent or surrounding land, leaving a
remainder lot or parcel.
b. The following shall not be deemed to be a lot of
record:
1. A lot or parcel created solely by a tax lot
segregation because of an assessor's roll
change or for the convenience of the
assessor.
2. A lot or parcel created by an intervening
section or township line or right-of-way.
3. A lot or parcel created by an unrecorded
subdivision, unless the lot or parcel was
conveyed subject to paragraph (a)(3) of this
section.
Page 16 - Findings & Decision (LR-92-47/O'Neill)
4. A parcel created by the foreclosure of a
security interest."
B. Application
The issue arises as to whether the tract was ever created
and whether it was created in a manner that the zoning ordinance
recognizes. For the reasons set forth below, the Board finds
that the subject tract does not qualify as a "lot of record"
under the County's ordinances.
1. Lot or parcel must have been "created."
Federal surveys do not "create" distinct units of land in
the same context as do subdivisions and partitions. Partitions
and subdivisions undertaken under County law result in a tract of
land that is completely defined at the time of platting. The
Board finds that that is not the case with the units of land
identified in the BLM surveys. In this case, the tracts did not
take on their final attributes until the conveyance, at which
time they were subjected to various easements, including road
easements. See the restrictions set forth in the clear list and
in the deed to applicants.
This difference was recognized by the California Court of
Appeals in John Taft Corp. v. Advisory Agency, 207 Cal Rptr 849
(Cal. App. 2 Dist 1984):
"We concur that the term 'legal subdivision' as
used in the federal survey law refers neither to a
physical division of land nor to the allocation of a
parcel to more than one owner. The term there refers
instead solely to a survey method adopted to facilitate
the conveyance of public land to one or more owners by
establishing the geographic location of the land on a
descriptive map."
John Taft Corp, at 843.
The court went on to note that unlike subdivision maps
produced pursuant to state subdivision law, maps produced by
federal surveys are not in the chain of title and do not provide
constructive notice in the way that subdivision maps produced
under state law do. Id. Federal surveys are filed in the office
of the U.S. Surveyor General rather than the local office of the
County Recorder, which is where all property transfers are
recorded. Id.
In this sense, the BLM surveys are analogous to the Atkins
survey that the Board found in 1989 did not create lots of
record.
Page 17 - Findings & Decision (LR-92-47/O'Neill)
The Board also finds that, unlike subdivision or partition
plat maps in the state system, the federal surveys do not
continue to have any function after property described therein is
transferred into private hands. Thus for example, if there were
to be an adjustment of a lot line on any of the tracts described
in a Small Tract Act survey, the BLM "plats" would not be
changed. The BLM surveys function to facilitate the disposal of
lands in federal hands, but have no applicability to land in
private hands.
Finally, the Board finds that the surveying and "platting"
of federal lands does not mean that the lands so surveyed will
necessarily ever leave the public domain and become private.
Federal land managers are free to change the purposes under which
they hold land and retain land and/or offer it for disposition to
the public. That is the case here, where the purposes of the
original survey do not relate to the purposes under which the
land was ultimately transferred.
2. Lot or parcel must have been created in a manner
recognized by lot of record ordinance.
a. By partitioning
The Board finds that the subject tract was not created by
"partitioning" as that term is used in DCC 18.04.030.
"Partitioning" is defined with reference to ORS Chapter 92.
Chapter 92 defines a partition to be a land division that occurs
as a result of a formal approval process conducted by a County
according to criteria set forth by a County's land division
ordinance. The end result is a partition plat or prior to 1990,
a partition map dividing the property. Deschutes County has had
a partition ordinance in place since 1977; the subject tract was
not defined through a partition process. In addition a partition
by definition is a process that results in the creation of no
more than three lots. The 1953 federal survey plat added 100 new
lots to the lots surveyed for sale or lease under the Small Tract
Act.
In an attempt to squeeze into this definition, Applicants
have tried to describe the making of a federal survey as a
process that meets the definition of a "partition." The Board
finds that that makes no sense. Chapter 92 details the process
for approving and surveying partitions under state law. It sets
out the duties of all the players in the County process for
partitioning lands, such as the County Planning Commission, the
County Surveyor, the County Clerk, etc. There is no reference
whatsoever to federal surveys in ORS Chapter 92.
\\\
Page 18 - Findings & Decision (LR-92-47/O'Neill)
b. By subdivision
The Board finds that the subject tract was not created by a
subdivision plat as defined in ORS Chapter 92. Again, ORS
Chapter 92 envisions a formalized approval process administered
by the County. The subject tract was not defined through that
process. No subdivision plat describing the subject parcel has
been recorded with the County Clerk's office.
c. By town plat
The Board finds that the subject tract was not created by a
town plat filed with the Deschutes County Clerk and recorded in
the Deschutes County Record of Plats. Town plats were the
vehicles by which lands were subdivided under state law prior to
present subdivision requirements under ORS Chapter 92.
d. As a "remainder" lot
The Board finds that the subject tract does not constitute a
"remainder" lot. This provision has been interpreted by the
County to allow recognition of any tract that has been completely
isolated by surrounding lots or parcels recognized or
recognizable under the County's ordinance as a lot of record.
Thus, if for any reason all the surrounding lots or parcels
contiguous to the subject tract have been recognized as lots of
record, the subject tract would also be recognized.
The subdivision ordinance defines the term "contiguous land"
as follows: "Contiguous means that which touches or connects,
including that which touches or connects at a point. . ." DCC
17.08.160. The Board finds that the County has consistently used
this definition in the context of determining whether tracts of
land are joined or not.9 See, e.g., policy statement of John
Anderson, dated July 13, 1981.
Applicants sought to apply a federal definition of
"contiguous" from federal land management laws; however, that
definition is not applicable to the County's zoning ordinance.
9 Staff may have created some confusion when it referred to
the definition of "contiguous" from the zoning ordinance, which
does not explicitly state that properties may be contiguous by
meeting at a point only. It is not unreasonable to use the
subdivision ordinance definition of "contiguous" here, since the
issue at hand is whether tracts are deemed to be separate or
joined. The subdivision ordinance is the County's land division
ordinance. The issue of contiguity under the zoning ordinance is
more likely to come up with conflicts between uses on adjoining
lands, in which case less precision is required.
Page 19 - Findings & Decision (LR-92-47/O'Neill)
The County is not required to interpret its ordinances in
conformance with federal definitions that are intended to apply
to its own management of federal lands.
In this case, as the Board found above, the subject tract is
contiguous at the southeast corner to an undeveloped tract that
was one of those described in the BLM small tract survey and
conveyed to the Baldwin -Herndon trust in 1993 (tax lot 1300,
"Lot" 136 of the BLM survey). For purposes of the County's lot
of record definition, the tract is still joined at a corner to
"lot" 136. Accordingly, the subject tract cannot be recognized on
this basis.
e. By deed or land sale contract
The Board finds that the subject tract is not one that is
defined by deed or contract, as that term is used in the lot of
record definition. This provision has been consistently
interpreted by the County to allow for recognition of a lot or
parcel by separate description in a deed or land sale contract at
a time when there were no applicable county land division
requirements. The Board finds that such an interpretation is
consistent with the provisions of ORS 215.010.
The County's present subdivision ordinance dates back to
1970. The County's partition ordinance dates back to 1977. Any
purported division of the subject tract said to have been
accomplished by a conveyance was effected after the effective
dates of those County ordinances. In addition, the first
recorded conveyance including this tract does not set out a
separate legal description as is required by the lot of record
provision. The clear list conveys multiple tracts in the same
conveyance, contrary to the single tract requirement of the
criterion allowing recognition of tracts identified by a
conveyance. For these reasons, this provision cannot be used to
provide recognition for the subject tract.
The applicants devoted considerable energy to arguing that
the State acquired equitable title to the property in 1968 and
that upon clear listing, legal title in the State related back to
1968. The Board finds that even if that argument were valid as a
matter of federal public land law, it does not help applicants
fall within the County's lot of record definition.° The fact
10 Applicants argue that because the State did everything
that was required of it in applying for the selected lands in 1968,
the State, on the Baldwin heirs' behalf, acquired equitable title
to the selected lands. The applicants' argument in this regard is
undercut by their reliance on U.S. Supreme Court cases that pre-
date the Taylor Grazing Act (which required classification of lands
Page 20 - Findings & Decision (LR-92-47/O'Neill)
remains that there was no conveyance of the subject tract as a
separately described lot or parcel prior to the time that the
County had applicable land division ordinances.
The applicants have also argued that in combination with the
equitable title doctrine, ORS 93.680(1)(c) justifies the
recognition of the subject tract as a lot of record under the
deed or land sale contract provision. ORS 93.680(1)(c) allows
for "approved lists of lands granted to this state or to
corporations in this state" to be recorded with County deed
records with the same effect as an ordinary conveyance. The
Board finds that that argument does not aid applicants, either.
The Board finds that a "clear list" is the "approved list" which
has the same effect as a deed under ORS 93.680 and federal
law.11 All this provision does is require a County Clerk, when
presented with a clear list, to record it as he or she would any
other deed. It does not require that the County recognize any
as a pre -requisite for selection of indemnity lands, a
discretionary decision made by the Secretary of Interior or his
designees). See Andrus v. Utah, 446 US 500, 100 S Ct 1803, 64 L Ed
2d 458 (1980), see also Occidental Oil Shale Co. v. State Board of
Land Commissioners, 692 P 2d 321 (Colo. 1984). Furthermore, the
record in this case does not clearly demonstrate that the Secretary
or his designees made a final decision to classify the property in
1968 for disposition to the State under the Indemnity Act.
Applicants provided no documents showing that the classification
process in 1968 was in fact completed. Finally, it appears that
the BLM disputes whether the State took all necessary steps to
perfect its selections in 1968. Ultimately, it appears that this
matter will be decided in litigation between the Baldwin heirs and
the BLM.
On a more fundamental level, the purpose of the doctrine of
equitable title in this public land law context is to restrain the
federal government from defeating or aiding in the defeat of
indemnity selections once a state's indemnity lands application has
acheived certain threshhold decision points. See, e.g., Andrus,
supra. In that light, whether or not in this case the State had
equitable title has little, if any, bearing on whether the County
must in 1994 recognize the subject tract as a lot of record.
11 As noted in Footnote 3 of State of Oregon v. BLM, 876
F2d 1419, 1423 (9th Cir., 1989), "A clear list is a government
list of lands, title to which has been cleared to a party. It
transfers title as effectively as a patent.' 767 F.Supp. at
1055."
Page 21 - Findings & Decision (LR-92-47/O'Neill)
particular tract as a lot of record. No clear list was presented
to the County Clerk in this case until 1993. The statute does
not require that the County Clerk regard this deed as having been
recorded in 1968.
3. Lot or parcel cannot have been describe in ways
that the lot of record definition explicitly
excludes.
a. Recognition of tract as a tax lot
The Board finds that the fact that the subject tract has
been given a tax lot number does not mean that it was a legally
created lot or parcel. The lot of record definition explicitly
excludes tracts purportedly created by a tax assessor's roll
change from being recognized as a lot of record. This is
consistent with ORS 215.010.
b. A filed survey
The subject tract's identity as a separate and distinct unit
of land appears to rest entirely upon the 1953 BLM survey. In
the past, the County has treated surveys purporting to create
more than 3 lots at a time to constitute an "unrecorded
subdivision," as that term is used in the lot of record
definition. The term "unrecorded" refers to the fact that the
survey was not recorded in the deed records of the County, as
would be the case with a platted subdivision approved pursuant to
ORS Chapter 92.
The Board finds this case to be analogous to the survey at
issue in Atkins v. Deschutes County, previously litigated by the
County, wherein the land owner attempted to establish as a lot of
record a unit of land described only in a survey filed with the
County surveyor's office in the 1960s. The County refused to
recognize that parcel as a lot of record. The County's position
was subsequently upheld before LUBA and the Court of Appeals.
See Atkins v. Deschutes County, 19 Or LUBA 84, affirmed 102 Or
App 298 (1990). Copies of the County's decision and briefs and
copies of the LUBA and Court of Appeals decisions in that case
are included in the record.
The fact that this case involves a survey of federal lands,
undertaken pursuant to a federal process does not make this case
different. Just as with a filed survey, the units of land
identified in a federal survey do not become of record as do
subdivision plats and partition plats. They are subject to
change by the "owner," such as by subjecting them to easements
prior to conveyances. In this case, the entire purpose under
which the federal lands were held and under which the lands were
Page 22 - Findings & Decision (LR-92-47/O'Neill)
initially described as small tracts was changed prior to the
disposition of the lands.
V. APPLICATION OF LAW OUTSIDE THE LOT OF RECORD DEFINITION
A. Recognition of lots based on laws outside the lot of
record definition.
The Board finds that in certain instances units of land will
be recognized by the County for planning purposes based on law or
legal concepts external to the lot of record definition. Those
instances are as follows:
1. By estoppel
The County has recognized as "lots of record" those tracts
where the County Community Development Department had issued some
form of approval, such as septic permits, building permits or
planning permits for the tract as a separate tract. Such
recognition was made on the theory that by issuing a permit on
the property, the County's Community Development Department had
implicitly recognized a tract as a lot of record and was estopped
from denying lot of record status to such properties.
There are no facts here that would warrant recognition under
such a theory. The fact that the County Assessor's Office has
recognized the tract as a tax lot does not estop the County to
recognize the tract as a lot of record. The County's ordinance
explicitly states that the identification of tax lots does not
confer lot of record status on the subject parcel. This is
supported by ORS 215.010, which does not recognize tax lots as
legal lots.
A review of county records shows no permits issued on Lot 75
or any of the other tracts transferred to the state by the BLM
under clear list OR 3164.
2. By federal patent
With respect to transfer and exchanges of federal land, the
County recognizes federal transfers as in essence conferring lot
of record status on contiguous blocks of land as a severance of
property from the public lands. To fail to recognize such land
units would impede the federal government in its ability to
dispose of its public lands, and the county would in all
likelihood be found to be preempted if it were to require the
Page 23 -- Findings & Decision (LR-92-47/O'Neill)
federal government to sever its lands from the public lands by
going through the county land division process.2
This exception to the applicability of the County's lot of
record provision is distinguishable from the case at bar. The
County does not dispute the validity of the BLM's separating off
from its holdings a parent parcel to the Baldwin -Herndon Trust
without requiring that the federal government obtain a partition
to do so. The issue in this case is whether the County is
required to recognize internal divisions within that parent
parcel, such as those represented by the numerous government lots
described by BLM surveys that do not impinge upon the BLM's
ability to dispose of its lands. The Board finds that the act of
severing the land from the public domain and transferring it into
private ownership creates one lot for all contiguous lands
transferred in a federal patent or clearlist.
B. Response to Applicant's Arguments
1. County lot of record ordinance is not preempted by
BLM public land laws.
Applicant contended that the County is required to give lot
of record status to the subject property by virtue of the actions
of the federal government in creating the "government lots" under
the Small Tract Act. For the reasons set forth below, the Board
rejects that argument.
a. Overview of Preemption Law
Generally stated, federal preemption is the exercise of
federal authority over a subject area in a manner that is
intended to override conflicting state laws. See, California
Coastal Commission v. Granite Rock Company, 480 US 572, 94 L Ed
2d 577. 107 S Ct 1419 (1987) (dealing with preemption of state
land use laws regulating mining by federal public land laws under
Article IV, Section 3, the "property clause"). At issue here is
the first step of the analysis - whether the Deschutes County lot
12 Once that severance is accomplished, however, it makes
sense that the lot of record definition would be applied. Once
severed, the land becomes private land, no longer subject to
federal public land laws. One prominent example of former federal
lands becoming subject to state regulation after leaving the public
domain is mining claim patented under the Mining Law of 1872. Many
operators of such claims purposely operate their claims as
permittees on federal land without going to patent so as to avoid
state regulations insofar as possible.
Page 24 - Findings & Decision (LR-92-47/O'Neill)
of record definition conflicts with applicable federal public
land law.
b. Congress has not occupied the field.
An analysis of Granite Rock demonstrates that Congress did
not intend to occupy the field of public land law such that any
attempt to apply state zoning law to federal lands would be
invalid. Applicant's preemption argument is founded to a great
extent on an out -dated occupation of the field analysis or on
cases that dealt with conflicts involving statutes not applicable
to this case. Current preemption analysis favors a more
flexible, case -specific analysis than that presented by
applicants, focusing on actual conflicts between federal and
state or local enactments and whether Congress intended to
preempt. The preemption test regarding federal public land law
has been stated as follows by the authors of the leading casebook
on federal public lands:
"[Outside of Federal Enclaves, such as military
installations, post offices or National Parks purchased
with consent of the state] the beginning premises is
that state law controls, and the search is for federal
law that might preempt state authority - the ultimate
criterion usually being the intent of Congress."
Coggins, Wilkinson and Leshy, Federal Public Land and Resources
Law, Foundation Press, 3rd Edition, 1992, p. 203.
c. No conflict exists.
Applicants have attempted to argue that the applicable
federal law is the Small Tract Act and that the application of
the County's lot of record ordinance impermissibly conflicts with
that enactment.
Applicants' preemption theory fails from the start, since
the Board finds from statement of the applicants and from BLM
documents associated with the transfer of the lands that the
federal law under which the subject tract was held by the BLM and
then transfered out of federal ownership occurred was not the
Small Tract Act, but the Indemnity Act.3 The purpose of the
Indemnity Act is to provide the states a means to offset losses
13 As noted above, both in 1968 and in 1993, the BLM stated
that the classification of lands for transfer out of the public
domain was pursuant to the Indemnity Act. In addition, the
applicable BLM land use plan covering the tract, the Brothers - La
Pine Resource Management Plan, classified the land as suitable for
disposition to the state.
Page 25 - Findings & Decision (LR-92-47/O'Neill)
of school land grants resulting from dispositions or reservations
of federal lands by the federal government. That purpose is
effectuated by the transfer of selected alternative lands in the
same amount of acres of non -mineral lands as the school lands
that became unavailable to the State through the actions of the
federal government. Once transfer of roughly equivalent lands to
the affected state has occurred, the purpose of the in -lieu
statutes has been served." Whether the land being transfered
is in one block or is made up of separate and distinct parcels is
irrelevant for the purposes of the law. The identification of
Lot 75 by lot number facilitated transfer of the lands to the
state under the Indemnity Act, but did not mandate that Lot 75,
once transferred, be treated as a discrete tract of land for
purposes of applying the County's land use planning laws.'5
Applicants have presented no argument that the failure of
the County to recognize purported internal divisions in a block
of federal lands transferred to the state under the Indemnity Act
in any way frustrates the purpose of that Act. The Board finds
that there was no federal purpose in the Indemnity Act to create
and maintain separate tracts of land for disposition to private
parties.
The Board finds that the disposition of the subject tract
and others listed on Application OR 3164 was not effected to
accomplish the goals of the Small Tract Act. Furthermore, as a
matter of fact, the transfer in bulk of 48 small tracts to the
State of Oregon did not comport with the purposes of the Small
Tract Act. The act contemplated the disposal by the federal
government of Small Tract Lands directly to individuals for the
purposes of residential, recreational, business or community site
purposes. 43 USC Sec. 682a. It also limited the number of
tracts any one person or organization could acquire to one tract
except upon a showing of good faith and reasons satisfactory to
the Secretary of Interior. Id. In addition, the act set a low
minimum selling price - the price of the survey - for the
apparent purpose of encouraging sale of such lands directly to
individuals for the establishment of communities. 43 USC Sec.
682b. The Act did not seek to dispose of small tracts in bulk to
a developer who would then sell off individual lots at market
prices.
" The federal government's indemnity obligations are satisfied
by the transfer of a "rough equivalent" of the school land grants
disposed of by the federal government. Andrus v. Utah, 446 U.S.
500 (1980).
15 Federal regulations governing grants to states as in lieu
selections require that selected lands be described in accordance
with the official plats of survey. 43 CFR Sec. 2621.1(d)(1).
Page 26 - Findings & Decision (LR-92-47/O'Neill)
Finally, the Board finds that there can be no conflict here
because once the initial transfer of the property from the
federal government to the State was accomplished, federal
authority over the property ceased to exist.
The Board finds that the BLM is aware of the lot of record
issue regarding the Baldwin -Herndon lands and has expressed no
concern that the County would be impeding a federal perogative by
applying its lot of record standard.
2. Application of County lot of record definition is
not precluded by ORS 92.017.
ORS 92.017 provides that "a lot or parcel lawfully created
shall remain a discrete lot or parcel, unless the lot or parcel
lines are vacated or the lot is further divided as provided by
law." Applicants argued that the subject tract was "created" by
the 1953 federal survey and that by virtue of ORS 93.017 the
County was required to recognize it. For the reasons set forth
below, the County rejects applicants' argument.
First, as set forth in Section V(B)(1) above, the applicants
have not demonstrated that the federal surveys actually "created"
any discrete lots or parcels. See Atkins v. Deschutes County, 19
Or LUBA 84, affirmed 102 Or App 298 (1990).
Second, the Board finds that even if the federal surveys
were judged to have "created" lots or parcels, creation by way of
a federal survey is not a manner that the County would be
required to recognize under ORS 93.017. The Board finds, for the
reasons set forth in the County's brief to the Court of Appeals
in Atkins, that the scope of "lot or parcel" in ORS 92.017 is
defined by the definition of lot or parcel set forth in ORS
215.010. In making this finding, the Board overrules the County
Hearing Officer on this point. The Board finds that the Hearing
Officer failed to adequately consider the context of ORS 215.010
and its origin in the same bill (HB 2381; 1985 Oregon Laws,
Chapter 702) that enacted ORS 92.017. The legislative history
clearly shows that the scope of •the parcels that ORS 92.017
requires County's to recognize are defined by ORS 215.010.
Finally, the Board finds that the lot of record definition
is consistent with LUBA's analysis of ORS 92.017 in Kishpaugh v.
Clackamas County, 24 Or LUBA 164 (1992). That case analyzed the
impact of ORS 92.017 upon land use regulations that limit or
prohibit separate development of lawfully created lots. Kispaugh
held that ORS 92.017 gave the owner of a lawfully created lot the
legal right to sell the lot as a single unit but did not grant
the owner any rights to separately develop the lot. LUBA
conducted an extensive review of the legislative history of ORS
92.017. That history included the following statements:
Page 27 - Findings & Decision (LR-92-47/0'Neill)
"What the bill is saying is once a subdivision always a
subdivision, unless you formally vacate it. It does not
address *** the lots of record."
"An important point I need to make about this bill is that
it in no way gives new development rights to anyone. So, to
get it on the record, we're not trying to legitimize lots of
record for any kind of development. People shouldn't look
at this as having a piece of property and going in for a
building permit. Development of property remains subject to
current state and local land use and zoning laws, ordinances
and regulations. The practical effect of the bill is to
allow units of land that were lawfully created over the
years to be sold . . ."
In the present case, the County's interpretation of its lot
of record requirement acts as a limitation upon the development
of that lot but does not prevent the lawful transfer of the lot.
The applicant may, therefore, sell Lot 75 as a separate lot but
may not develop it as a separate lot without obtaining further
land use approvals from the County to allow the lot to be
developed as a single lot. The application of the lot of record
requirement, therefore, does not violate ORS 92.017.
3. Application of the County's lot of record
definition is not precluded by ORS 93.680.
Applicants have argued that this statute requires the County
to recognize the subject tract as a lot of record. As explained
earlier, this provision is a statute directed to County Clerks
requiring that they record clear lists presented to them for
recording. It does not require that the County Planning Division
recognize as a lot of record a parcel first conveyed in a clear
list dated April 1994.
The Board therefore finds that the County's lot of record
provision is not in conflict with ORS 93.680. The provisions
serve different purposes. ORS 93.680 deals with issues relating
to transfers of interests in real property. It describes which
federal conveyances must be recognized for recording purposes.
It is not a land use statute. The County's lot of record
provision, on the other hand, is a land use provision: it
determines which conveyances the County will recognize as
creating a lawful tract of land.
VI. DECISION
Based upon the foregoing, the Board hereby DENIES the
applicant's request that Government Lot 75 be recognized as a
Page 28 - Findings & Decision (LR-92-47/O'Neill)
legal lot of record for purposes of Title 18 of the Deschutes
County Code.
THIS DECISION BECOMES FINAL 21 DAYS FROM THE DATE MAILED,
UNLESS APPEALED.
DATED this day of November, 1994.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
NANCY POPE SCHLANGEN, Chair
ATTEST: TOM THROOP, Commissioner
Recording Secretary BARRY H. SLAUGHTER, Commissioner
Page 29 - Findings & Decision (LR-92-47/O'Neill)
DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBER:
APPLICANT:
OWNER:
AGENT:
REQUEST:
STAFF REVIEWER:
HEARING DATE:
RECORD CLOSED:
LR -07-52
Stephen Thompson
PO Box 999
Sisters, OR 97759
Bryant Lovlien & Jarvis, PC
Helen Eastwood
PO Box 880
Bend, OR 97709
Lot of Record determination.
Ruth Wahl, Associate Planner
January 31, 2008
March 13, 2008
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 18 of the Deschutes County Code, the County Zoning Ordinance
Chapter 18.04, Title, Purpose, and Definitions
Section 18.04.030, Definitions
Chapter 18.36, Forest Use Zone (F-1)
Chapter 18.88, Wildlife Area Combining Zone (WA)
B. PL -17, Deschutes County Subdivision/Partition Ordinance
II. FINDINGS OF FACT:
LOCATION: The subject property is identified on Deschutes County Assessor's map
16-10 as taxlot300.
ZONING: The property is zoned Forest Use (F-1), and is also within the Wildlife Area
(WA) combining zone.
SITE DESCRIPTION: Based on the County Assessor's data, the property consists of
approximately 57.68 acres and is currently undeveloped. No site visit was conducted by
staff on this request.
Thompson
LR -07-52
1
REQUEST: The applicant is seeking a legal Lot of Record verification for the subject
tax lot, to recognize this parcel as a lot of record. In support of the request, the applicant
submitted an application with several attachments.
REVIEW PERIOD: The applicant submitted the subject application on September 27,
2007. Section 22.20.040(D) of Title 22 of the Deschutes County Code specifies that lot
of record applications are not subject to the 150 -day review period required under section
22.20.040(A).
PUBLIC NOTICE AND COMMENTS: The Deschutes County Planning Division
mailed notice of the public hearing to all property owners within 750 feet of the subject
property. The following submissions were received from the applicant and other parties
prior to the January 31, 2008 public hearing.
October 8, 2007 - Paul Dewey, e-mail
I am writing on behalf of Central Oregon Land Watch to state our opposition to this
proposed lot of record claim. We do not believe the application is complete; for example,
what is the road access? We also don't believe that the deed from the Forest Service to
Crown creates a lot of record, and in particular for just a part of what was transferred.
Nothing in the deed from the Forest Service to Crown created this particular parcel.
It was only Crown's transfer to Thompson that separated this parcel of approximately 58
acres. Partitions were required to create parcels in the 1990's and parcels in the forest
zone had to be 80 acres in size. We do not believe it is a correct reading of State Law or
the DCC to assume lots of record of any size can be created whenever a forest owner
decides to sell off pieces of its property that it hasn't bothered to partition.
October 12, 2007 — Paul Dewey, e-mail
I am following up on my earlier e-mail as to why this parcel should not be recognized by
the County as a lot of record.
The defin [Sic} of "lot of record" in DCC 18.040.030 "Lot of Record" (A) specifies that
the lot "conformed to all zoning and subdivision or partition requirements, if any, in
effect on the date the lot or parcel was created." The forest zone in 1999 limited lots to
80 acres in size, so this 58 -acre parcel does not qualify and the partition rules required
access by a public road.
Additionally, subsection (A) (3) specifies that Tithe deed supposedly creating the lot of
record "contains more than one legal description, only one lot of record shall be
recognized unless the legal descriptions describe lots subject to a recorded subdivision or
town plat." Recognizing this parcel as a lot of record would mean more than one lot of
record was created by this deed.
Note again, though, that the time this parcel was created (1999), ORS 92.010 and ORS
215.010 (1) recognized the creation of parcels only by the process of 92.010 or in
compliance with applicable zoning and partitioning ordinances or by deed (but only
where there is no zoning or partitioning ordinances). The DCC provisions recognizing
the creation of parcels by deeds is in fact broader that ORS 215.010 (1) and thus in
conflict with it.
Thompson
LR -07-52
2
Not every lot that gets created by any means has to be recognized by the County as a lot
of record. Such recognition of lots of record avoids partition rules and can also lead to lot
line adjustments and potential development proposals.
A "lot of record' is a term of art which must meet the defin [Sic] in the Code and state
statutes. Recognizing such a parcel as here as a lot of record would go beyond the Code
an statutory provisions and would undermine the forest zone.
January 16, 2008 — Helen Eastwood
Letter providing additional information on the history of the subject property and
responding to comments from Paul Dewey and Central Oregon Land Watch.
PROCEDURAL HISTORY: A public hearing was held on January 31, 2008. The
applicant provided testimony. Opponents Paul Dewey representing Central Oregon Land
Watch and Carol Macbeth of 1000 Friends of Oregon provided oral and written
testimony. At the hearing, the applicants requested additional time to provide
supplemental argument and to answer questions that I posed about federal preemption. I
granted the applicants time to respond and for opponents to comment on that response.
Applicants were also provided a final seven days in which provide concluding comments
and response. The submissions are summarized below.
January 31, 2008 Public Hearing
Testimony and letter from Helen Eastwood, dated January 22, 2008 providing additional
information on the history of the subject property and responding to comments from Paul
Dewey and Central Oregon Land Watch.
Testimony and letter from Paul Dewey arguing that the subject property does not meet
the definition of a lot of record under DCC 18.04.030. Also arguing that federal
preemption does not apply in the determination of a lot of record.
Testimony and letter from Carol Macbeth arguing that federal preemption is not relevant
to a determination of whether the subject property is a lot of record.
February 14, 2008 — Helen Eastwood
Letter responding to three questions: 1) What legal support is there for federal
preemption of local lot of record code provisions, 2) Is there specific language in the deed
that supports the preemption argument, 3) Does how the property will be utilized impact
the legal lot of record determination?
March 6, 2008 — Paul Dewey
Letter arguing that the Federal Lands Policy Management Act contains language that
expressly does not preempt local land use laws. Further arguing that no conflict exists
between local law and the federal act. Also opposing the applicant's submission of
documents for use as legislative history.
The applicant notified staff that no final statement would be provided.
Thompson
LR -07-52
3
III. CONCLUSIONS OF LAW
Federal Preemption
The subject property was originally transferred to the federal government in 1940.
Pursuant to the Federal Land Policy and Management Act ("FLPMA") the Bureau of
Land Management ("BLM") transferred the subjection property to Crown Pacific Limited
Partnership in 1999. That same year Crown Pacific sold the subject property to the
applicant.
The applicant argues that the subject property must be considered a "lot of record"
because the property was transferred from the federal government pursuant to provisions
of the FLPMA. The applicant further argues that if the transferred piece of property is
not considered a lot of record, then it must be assumed that the federal government
transferred the property illegally which is inconsistent with both the language and intent
of the FLPMA. The applicant further argues that the F-1 zoning of the property conflicts
with the way in which the subject property was created and therefore the federal law
should preempt the county's zoning ordinance and any related state statutes and
regulations to the extent necessary to approve a lot of record.
The applicant and the opponents seem to agree that there are three ways that federal law
can preempt state and local land use rules: 1) by express preemption, 2) occupation of the
field, and 3) direct conflict with local law. The applicant's February 14, 2008 submission
states that the FLPMA does not expressly preempt state and local land use law. The
applicant also does not claim that the FLPMA preempts state and local laws by
occupying the field. I agree with the applicant that for the purposes of this application
the FLPMA neither expressly preempts the county's land use regulations nor so fully
displaces local law as to occupy the field of regulation. Skydive Oregon v. Clackamas
County, 25 Or LUBA 294 (1993).
During the January 31, 2008 hearing, at my request, the applicants identified language in
the FLPMA that they felt preempts the county's lot of record requirements. The
applicant cited Section 1718 of the FLPMA which states in pertinent part:
"Provided, That a conveyance of lands by the Secretary, subject to such
terms, covenants, conditions and reservations, shall not exempt the grantee
from compliance with applicable Federal or State law of State land use
plans: Provided further, That the Secretary shall not make conveyances of
public lands containing terms and conditions which would at the time of
conveyance constitute a violation of any law or regulation pursuant to
State and local land use plans, or programs."
The applicant argues that this language and the Section 1716 exchange provisions of the
FLPMA demonstrate that the BLM had authority to transfer the subject property to
Crown Pacific in 1999 without regard to the county's then applicable minimum lot size of
80 acres. The applicant also submitted minutes from a federal House Subcommittee on
Forests and Forest Health, and findings from1993 Deschutes County Board of
Thompson
LR -07-52
4
Commissioners decision to support the proposition that in selling federal lands through
the FLPMA, the federal government may not be subjected to state or local land division
procedures prior to conveyance.
Far more probative of the question of preemption of state and local zoning and land use
laws is Section 1720 of FLPMA which states:
"At least sixty days prior to offering for sale or otherwise conveying
public lands under this Act, the Secretary shall notify the Governor of the
State within which such lands are located and the head of the governing
body of any political subdivision of the State having zoning or other land
use regulatory jurisdictions in the geographical area within which such
lands are located, in order to afford the appropriate body the opportunity
to zone or otherwise regulate, or change or amend existing zoning or other
regulations concerning the use of the such lands prior to such conveyance.
* * *,,
This section of the FLPMA can reasonably be interpreted to require that the federal
government only give notice to state and local land use authorities prior to transfer to
private buyers. I agree that a conflict with this section of the FLPMA would result if a
local government attempted to require the federal government to first apply for land
division and zoning approval from the state or local government prior to the federal
government conveying lands managed under the FLPMA to private parties. I find
Section 1720 to be clear enough on its face not to allow consideration of the so called
legislative history provided by the applicant. Even if the legislative history were to be
relied upon, the information is consistent with the above interpretation.
Based on this analysis, I disagree with the applicant's assertion that the present "lot of
record" determination requires the application of federal preemption rules or the FLPMA.
The subject property was created in 1999 through transfer from the BLM. At that time,
the transfer was completed notwithstanding at least two provisions of state law.
First, the BLM partitioned the subject property from a larger lot without following the
partitioning requirements in ORS 92.012 which then, as now, required that no land shall
be partitioned except in accordance with ORS 92.010-92.190. A close examination of the
1940 deed from S.O. Johnson and Katherine Johnson, which is in the record, shows the
tract conveyed to the United States of America included:
"Lots one -two -three-four (1-2-3-4), Northwest Quarter of Southwest
Quarter (NW1/4 SW1/4) of Section Four (4) * * * Township Sixteen (16),
Range Ten (10) East of the Willamette Meridian."
When the BLM conveyed land to Crown Pacific Limited Partnership in 1999, it only
conveyed "sec. 4, lots 3 and 4 and (NW1/4 SW1/4)" of T.16., R. 10 E. See deed number
36-99-D0001 in the record. The adjoining Lots 1 and 2 were not conveyed. That
conveyance partitioned the property without following the procedures set forth in ORS
Chapter 92. The resulting lot or parcel was later conveyed to the applicant.
Thompson
LR -07-52
5
Second, at the time of the conveyance from BLM to Crown Pacific, state law set a
minimum lot size of 80 acres for property in forestland zones. ORS 215.780(1)(c). Since
the resulting parcel was less than 80 acres, the BLM's conveyance also contravened the
state's minimum lot size requirements.
For the purposes of a preemption analysis, the conflict between the county's zoning and
land division ordinances, and the FLPMA occurred at the time the BLM conveyed the
subject property to Crown Pacific in 1999. To the extent that a conflict existed, the BLM
was allowed to convey the subject property without following state or local partitioning
rules or adhering to the minimum lot size required for F-1 zoned lands. The resulting lot
or parcel appears to have been created and sold in compliance with the FLPMA and
without interference from the state or Deschutes County. Therefore, legal effect of
federal preemption, as it applied to the subject property, terminated in 1999 when the
conveyance to Crown Pacific was complete. The result is exactly what the applicant
holds today which is a legally created lot or parcel under the FPLMA, suitable for use or
conveyance, that despite being below the minimum lot size for F-1 zoned lands is still
subject to the rules and requirements applicable to that zone.
One further matter in relation to the application of the FLPMA requires explanation. Not
only does the act free the federal government from complying with local land use
regulations prior to selling these federal lands, but Section 1718 places the burden of
compliance with such regulations on the grantee. "That a conveyance of lands by the
Secretary, subject to such terms, covenants, conditions and reservations, shall not exempt
the grantee from compliance with applicable Federal or State law of State land use
plans:" This provision is reasonably read to place the burden of future compliance with
local land use laws on the grantee and subsequent purchasers.
Lot of Record -- DCC 18.040.030
The applicant does not argue that the subject property meets the County Code definition
of a "lot of record." Although 1 find that the lot or parcel was legally created through
transfer from the BLM to Crown Pacific, the property still does not satisfy the definition
set forth in DCC 18.04.030. There are only three potentially applicable provisions of the
definition that the lot could qualify under:
A. A lot or parcel at least 5,000 square feet in area and at least 50 feet
wide, which conformed to all zoning and subdivision or partition
requirements, if any, in effect on the date the lot or parcel was created, and
which was created by any of the following means:
1. By partitioning land as defined in ORS 92;
2. By a subdivision plat, as defined in ORS 92, filed with the
Deschutes County Surveyor and recorded with the Deschutes
County Clerk;
Thompson
LR -07-52
3. By deed or contract, dated and signed by the parties to the
transaction, containing a separate legal description of the lot or
parcel, and recorded in Deschutes County if recording of the
instrument was required on the date of the conveyance. If such
instrument contains more than one legal description,
only one lot of record shall be recognized unless the legal
descriptions describe lots subject to a recorded subdivision or town
plat;
Although BLM did actually partition the lot from a larger parcel, that partition was not
accomplished in compliance with ORS Chapter 92. The lot was not created through a
subdivision of land. The property did not conform to all zoning and subdivision or
partition requirements in 1999 even though it was otherwise transferred by a legal and
effective deed. Therefore, I find that the subject property does not qualify as a lot of
record under any the above provisions.
Lot of Record -- DCC 18.36.050
Even if the subject property could satisfy one of the criteria in DCC 18.04.030, the
County Code and state law governing forest zones define "lots of record" in a particular
way. For the reasons set forth below, I also find that the subject property cannot qualify
as a lot of record in the county's F-1 zone. DCC 18.36.050(8)(1), which potentially
allows for a dwelling in certain F-1 lands, states that:
The lot or parcel on which the dwelling would be sited was lawfully
created prior to January 1, 1985 and was acquired by the present owner
either prior to January 1, 1985 or by devise or by intestate succession from
a person who acquired the lot or parcel prior to January 1, 1985.
This provision of the County Code is drawn from state statute and LCDC rules
implementing that statute. The state statute is intended to remedy a circumstance
encountered by owners of lands that sometime after 1985 were required by the state to be
rezoned for farm and forest use. The provision for a "lot of record" dwelling in the
county's F-1 emanates from this legislation.
In 1993, the Oregon Legislature authorized counties to adopt lot of record provisions for
resource lands as part of their zoning and development codes. The purpose of the new
legislation was to allow residential development on less productive resource lands where
the land was "acquired before the owners could reasonably be expected to know of the
regulations."
215.700 Resource land dwelling policy. The Legislative Assembly
declares that land use regulations limit residential development on some
less productive resource land acquired before the owners could reasonably
be expected to know of the regulations. In order to assist these owners
Thompson
LR -07-52
7
while protecting the state's more productive resource land from the
detrimental effects of uses not related to agriculture and forestry, it is
necessary to:
(1) Provide certain owners of less productive land an opportunity to build
a dwelling on their land; and
(2) Limit the future division of and the siting of dwellings upon the state's
more productive resource land. [1993 c.792 §10}
The legislation provided that a dwelling could be allowed on farm or forest land if:
(a) The lot or parcel on which the dwelling will be sited was lawfully
created and was acquired by the present owner:
(A) Prior to January 1, 1985; or
(B) By devise or by intestate succession from a person who acquired the
lot or parcel prior to January 1, 1985. ORS 215.705(1).
At the same time, the Oregon Legislature adopted rules governing when a dwelling could
be sited on lots or tracts of forestland in both western and eastern Oregon. ORS 215.720-
755. This legislation was implemented by the rules adopted by the Land Conservation
and Development Commission in OAR 660, Division 006. Specifically, OAR 660-006-
0027 and 660-006-0029 set forth the requirements for allowing a dwelling on a lot of
record in forest zones. The Deschutes County Code sections 18.36.050(A & B), allowing
dwellings on a "lot of record,"1 in the F-1 zone closely follows the rules identified in
OAR 660-006-0027-0029.2
This history demonstrates that in resource land zones, such as the county's F-1 zone, the
designation "lot of record" is a unique category of lands upon which dwellings may be
approved under prescribed circumstances.
As discussed above, the subject property was legally created in 1999 through transfer
from the BLM. As a result, the property can be considered a legal "lot" for the purposes
of DCC 18.36.050(B)(1). However, the lot was not created prior to January 1, 1985.
Therefore, the subject property cannot meet the requirements for a lot record in the F-1
zone. This is quite consistent with the purpose of ORS 215.700 et. seq. which was not
intended waive limitations on resource zoned lands created or transferred after January 1,
1 ORS Chapter 215 does not define "lot of record" However, Chapter 215 defines a "lot" as having the definition
provided in ORS Chapter 92, and a "parcel" as a unit of land created:
(A) By partitioning land as defined in ORS 92.010;
(B) In compliance with all applicable planning, zoning and partitioning ordinances and regulations; or
(C) By deed or land sales contract, if there were no applicable planning, zoning or partitioning
ordinances or regulations.
The Oregon Administrative Rules for forest dwellings follow the same definitions. OAR 660-006-0005(9).
2 The County Code also provides for dwellings on a "lot of record" in Exclusive Farm Use zones. DCC
18.16.050(E & F). The code provisions closely follow the rules governing dwelling on some EFU lands set
forth in OAR 660-033-0130(3Xa). Those rules again appear to be derived from the authority granted in
ORS 215.705 et. seq.
Thompson 8
LR -07-52
1985. Nor was the legislation intended to remedy the limitations on resource zoned tracts
or lots transferred from the federal government under various federal land management
statutes.
One final issue warrants discussion. The applicant argued both in the written
submissions and orally at the January 31, 2008 hearing, that if the FLPMA were not to be
interpreted as preempting lot of record and minimum lots size requirement for lots
conveyed through the federal act, that the county would be in effect determining that all
such lots were "illegal." The applicant appears to argue that either the subject property is
a "lot of record" for all purposes under the code, or it is illegal, and therefore, unusable. I
disagree. The applicant draws too tight a relationship between the term "lot" and "lot of
record." Whether the subject property is considered a lot, parcel or tract, it was legally
created. The finding that it does not meet the requirements for a "lot of record" does not
render the property illegal or unusable. The F-1 zone provides many "permitted uses" as
of right under county regulations. As "forestland" the applicant is also entitled to
conduct forest practices consistent the Oregon Forest Practices Act, ORS 527.722 et. seq.
notwithstanding the county's regulations promulgated under ORS, Chapter 215.
IV. DECISION
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer
hereby DENIES the applicant's request for "lot of record" status for the subject property.
Kenneth D. Helm, Hearings Officer
Dated this ,/ 7 day of April, 2008
Mailed this ? day of April, 2008
Thompson
LR -07-52
9
DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBER: 247 -15 -000464 -CU
APPLICANT:
REQUEST:
Steve Runner
Pine Forest Development, LLC
Sunriver Resort Limited Partnership
P.O. Box 3589
Sunriver, OR 97707
Conditional use permit application to expand the Caldera Springs
Destination Resort ("Resort") to include the subject property. The
annexed property will include a maximum of 395 single-family
residences, a maximum of 95 additional overnight lodging units,
recreation facilities and additional resort core amenities. As part of this
application, the applicant seeks to modify the Caldera Springs
Conceptual Master Plan and ratio of single-family residences to
overnight lodging units from 2:1 to 2.5:1.
STAFF CONTACT: Anthony Raguine, Senior Planner
HEARING DATES: October 27, November 24 and December 15, 2015
RECORD CLOSED: December 29, 2015
I. STANDARDS AND APPLICABLE CRITERIA:
Title 18 of the Deschutes County Code ("DCC")
Chapter 18.40, Forest Use Zone — F2
Chapter 18.80, Airport Safety Combining Zone — AS
Chapter 18.84, Landscape Management Combining Zone — LM
Chapter 18.88, Wildlife Area Combining Zone — WA
Chapter 18.108, Urban Unincorporated Community Zone — Sunriver
Chapter 18.113, Destination Resorts — Destination Resort
Chapter 18.128, Conditional Use Permits
Title 22, the Deschutes County Land Use Procedures Ordinance
Title 23, The Deschutes County Comprehensive Plan
Chapter 23.84, Destination Resorts
Chapter 23.76, Energy
Oregon Revised Statute (ORS) Chapter 197.435 to 197.467
11. FINDINGS OF FACT:
A. Location: The subject property has an assigned address of 17800 Vandevert Road,
Bend, and is identified as tax lot 103 on Assessor map 20-11.
247 -15 -000464 -CU - Caldera Springs 1
B. Zoning and Plan Designation: The subject property is zoned Forest Use Zone ("F2").
It is within the Airport Safety Combining Zone ("AS") associated with the Sunriver Airport;
the Landscape Management Combining Zone ("LM") associated with Highway 97,
Vandevert Road and South Century Drive; and the Wildlife Area Combining Zone ("WA")
associated with deer migration range. The subject property is also mapped within the
Destination Resort ("DR") Combining Zone for Deschutes County.
C. Site Description: The irregularly shaped 614 -acre property is undeveloped with a
generally level topography. Vegetation on-site consists of a dense cover of lodgepole
and ponderosa pine trees. According to the applicant, the 60- to 80 -year-old trees are of
various sizes arranged in small groups and dense thickets, with about 25 percent of the
groups consisting purely of lodgepole pine. Understory vegetation is bitterbrush,
bunchgrasses, and typical high desert vegetation. Several dirt roads and the power line
right-of-way cross the site.
The site is approximately 250 feet west of Highway 97 at its closest point in the southeastern
corner. The property has frontage on South Century Drive along its southwestern property
line, and frontage on Vandevert Road along its southern property line.
D. Proposal: The applicant is requesting conditional use permit approval to expand the
Resort and include the subject property. The annexed property will include a maximum
of 395 single-family residences, a maximum of 95 additional overnight lodging units,
recreation facilities and additional resort core amenities. As part of this application, the
applicant seeks to modify the Caldera Springs Conceptual Master Plan and ratio of
single-family residences to overnight lodging units from 2:1 to 2.5:1. Additionally, the
applicant proposes a new access to the Resort from Vandevert Road.
The proposal includes two options detailed in the applicant's Exhibit A and A-1. Option 1
includes two areas of visitor -oriented accommodations ("VOA")/cluster housing, one in
the eastern portion of the annexation property and one at the south end of the property.
Option 2 also includes two areas of VOA/cluster housing, one at the north end of the
annexation property and one at the south end of the property.
The application includes a possible phasing plan, detailed on Exhibit A-2 and A-3, for
each Option discussed above. Each plan includes five to nine phases and an
anticipated 40 to 90 lots per phase. The exhibits indicate development of a phase every
one to four years as the real estate market dictates.
E. Surrounding Land Uses and Zoning: The site is bounded to the north by the Sunriver
Business Park on land zoned Urban Unincorporated Community Zone Sunriver —
Business Park District ("SUBP"), and by multi -family residential uses on land zoned
Urban Unincorporated Community Zone Sunriver — Multiple Family Residential District
("SURM"). To the east is the Burlington Northern Railroad. Beyond the railroad tracks
are vast tracks of undeveloped US Forest Service lands that are zoned Forest Use
("F1"), and Highway 97. To the south, across Vandevert Road are two undeveloped,
privately owned, properties zoned F2, and a residential subdivision zoned Rural
Residential ("RR10"). Along much of the property's western boundary is the Caldera
Springs Destination Resort. As noted above, the property's southwestern boundary is
formed by South Century Drive. Across South Century Drive are residential uses on
lands zoned F2, including the Crosswater development. To the northwest are residential
247 -15 -000464 -CU - Caldera Springs 2
uses in the Sunriver Resort on lands zoned Unincorporated Community Zone Sunriver —
Single Family Residential District ("SURS") and SURM.
F. Land Use History: The County approvals associated with the existing Resort are
summarized below.
Land Use Approval
Description
CU -05-07
Conceptual Master Plan ("CMP")
M-05-01
Final Master Plan ("FMP")
TP -05-961
Tentative Plan for up to 320 single-family residential homesites,
various future development tracts, rights-of-way, and easements for
infrastructure
SP -05 53
Site Plan for the Resort's first phase including 150 separate rentable
units for visitor lodging; eating establishments for at least 100
persons; meeting rooms for at least 100 persons, nine -hole short golf
course; three practice golf holes; practice putting green; lake; and
clubhouse which will incorporate the eating establishments and
meeting rooms
SP -06-14
Site Plan for the Resort amenities including fitness/pool center, pool,
basketball court, play area, tennis courts, lake expansion, relocated
parking area, lawn sports area, and pavilion
FPA -06-12
Final Plat approval for TP -05-961
SP -06-52/V-06-
16/MA-06-23
Site Plan for overnight lodging units (OLUs) within Tracts 2 and 3;
Minor Variance to reduce the parking area setback from 250 feet to
225 feet
SP -06-55
Site Plan for a pump station associated with the Resort water feature
SP -06-61
Site Plan for OLUs in Tract 1, roadway and driveway areas, and
pedestrian bike paths within Tracts 1, 2 and 3 of the core Resort
area; OLUs provided as lock -off units; A total of 160 OLUs will be
provided within Tracts 1, 2 and 3; This Site Plan approval is intended
to amend and supplement SP -05-53
MC -07-2
Modification of the Dimensional Standards approved under the CMP
and FMP, to include dimensional standards for the Overnight
Lodging Cottage Lots
247 -15 -000464 -CU - Caldera Springs
3
TP -07-988
Tentative Plan to divide Tracts 1, 2 and 3 into 45 lots, and to allow a
Zero Lot Subdivision; Tract 1 includes 22 Tots, Tract 2 includes 12
lots, and Tract 3 includes 11 lots; This division will allow the
construction of the overnight lodging cottages approved under SP -
06 -52 and SP -06-61
TU -07-3
Temporary use permit to construct a model cottage in Tract 1
SP -07-25
Site plan approval for the OLUs approved under SP -06-52 and SP -
06 -61 to address the lot configurations approved under TP -07-988
MP -08-88
Minor Partition to divide Tract FA into three parcels; Parcel 1
includes a portion of the golf course; Parcel 2 includes the pavilion,
fitness center, lakes and a portion of the parking lot and open
spaces; Parcel 3 includes the lakehouse facility and a portion of the
parking lot in the core area of the Resort
MP -08-89
Minor Partition to divide Tract A in the Phase 1 subdivision into two
parcels; Parcel 1 includes a portion of the golf course; Parcel 2
includes the open spaces
DR -13-23
Declaratory Ruling to determine if the site plan approval under SP -
07 -25, authorizing OLUs, roads and bike paths, has been initiated
MC -13-4
Modification of the CMP and FMP to change the required availability
of OLUs from 45 weeks to 38 weeks
MC -13-5
Modification of SP -07-25 to change the required availability of OLUs
from 45 weeks to 38 weeks
The existing Caldera Springs Destination Resort is approximately 390 acres in size and
includes 160 overnight lodging units, 320 single family residential lots, and recreation
facilities including a pool, clubhouse, golf course and trails.
G. Public Agency Comments:
Deschutes County Building Division. The Deschutes County Building Safety Division's
code required Access, Egress, Setbacks, Fire & Life Safety, Fire Fighting Water
Supplies, etc. will be specifically addressed during the plan review process for any
proposed structures and occupancies. All Building Code required items will be
addressed when a specific structure, occupancy, and type of construction is proposed
and submitted for plan review.
Deschutes County Road Department. I have reviewed the materials for the above
application and have the following comments:
247 -15 -000464 -CU - Caldera Springs 4
1. Vandevert Road is classified as a County collector with an ADT of 2240. Existing
width is 27.5 feet so when the development uses Vandevert for access, it will
have to be widened to 15 feet from centerline along the frontage of the property.
2. The Traffic Impact Analysis did not discuss any required improvements to the
intersection of the new access with Vandevert Road. I am thinking that most of
the traffic will be using the Highway 97/South Century Interchange to access this
development but I am curious as to what amount of traffic is projected to use the
access off of Vandevert Road. Would this intersection be analyzed when the
phasing of the resort required its connection?
Planning Division Senior Transportation Planner. The following comments on the
revised TIA were submitted on October 10, 2015:
1. The new approach apron to Vandevert must be paved to reduce the amount of
gravel and debris being tracked onto Vandevert from the site.
2. The correct citation to Deschutes County's traffic study requirements is DCC
18.116.310; the traffic requirements were shifted there from DCC 17.16.115 in
2014.
The following comments regarding safety concerns raised by the public were submitted
on October 26, 2015:
1. While there may be longer delays for Crosswater residents to enter onto South
Century Drive, the traffic study indicates the South Century Drive intersection that
provides access to Crosswater on the west leg and Caldera Springs on the east
leg meets the Deschutes County mobility standard. In other words, a minor
potential degradation in traffic operations is insufficient to require major
improvements. Additionally, there is adequate capacity on South Century Drive
itself; therefore no center turn lanes nor acceleration lanes nor additional travel
lanes are required.
2. Currently there is no programmed construction project from ODOT to introduce
turn restrictions at 97/Vandevert. If ODOT did program a construction project to
make Vandevert/97 a right -in, right -out only (RIRO) intersection, the traffic
impacts would be analyzed at that time. The County Transportation System Plan
("TSP") on page 148 does anticipate a future closure of Vandevert Road from US
97. If ODOT requests the complete closure of Vandevert at 97, a public hearing
is required before the Board of County Commissioners and people could then
state their case. I would assume ODOT would provide some high-level analysis
of the resulting traffic effects on South Century if Vandevert were closed given
traffic going to or coming from the north would likely divert to the South
Century/US 97 interchange. The County's 2012 TSP at Table 5.3.T1 (County
Road and Highway Projects) does list a future roundabout at Spring River/South
Century Drive as a medium priority (construction planned in 6-10 years or 2018-
2022 assuming adequate funding). The TSP also has a roundabout at
Huntington/South Century as a low priority (construction planned for 11-20 years
or 2023-2032, assuming adequate funding).
247 -15 -000464 -CU - Caldera Springs 5
3. The intersection of South Century Drive/Caldera Springs-Crosswater entrances
meets the Deschutes County mobility standards based on the accepted TIA;
therefore a roundabout at the South Century Drive/Caldera Springs-Crosswater
entrance is not warranted.
4. DCC 18.116.310(G) sets the requirements for what a TIA must consider.
Admittedly, the requirements through 18.116.310 are oriented toward motor
vehicles. However, South Century Drive is a County collector and has adequate
shoulders. The County in Deschutes County Code 17.48 (Design and
Construction Specifications) and Table A requires paved shoulders ranging in
width from 3' to 5'. The shoulders on South Century comply. An increase in
traffic from Caldera Springs will not change the dimensions of those shoulders.
The most recent (2011) figures for South Century Drive indicates the average
daily traffic (ADT) between Spring River Road and Huntington road ranges from
2,863 to 3,848 ADT. The County TSP on pages 80-81 discusses level of service
(LOS) standards as they relate to volumes for road segments. The County
standard for a two-lane rural road is LOS D, which means 5,701-9,600 ADT.
Therefore, based on the combination of shoulder width, current traffic volumes,
and future traffic volumes from the resort, South Century Drive will continue to
meet performance standards and provide sufficient shoulders for cyclists to ride.
5. The Bend -La Pine School District locates bus stops. Buses come with beacons
and stop paddles and motorists are required to yield to school buses. Schools
typically end and deliver their students before the p.m. peak hour traffic begins.
Additionally, traffic exiting the two resorts is controlled by stop signs and traffic
entering the two resorts must slow to turn into the entrances.
6. The TIA indicates even with development traffic, the intersection of South
Century/and the entrances to Crosswater and Caldera Springs will meet the
County's mobility standard. Additionally, even with the increased traffic there will
still be sufficient gaps in northbound and southbound traffic on South Century
Drive for pedestrians, bicyclists, and golf carts to cross the roadway.
7. Large events require approval either from the County via an Outdoor Mass
Gathering permit or permits from the County's Risk Management Unit. In either
case, the event must address traffic via a management plan, which typically
includes the use of state -certified flaggers to direct traffic. If there were a large
event, the traffic from the Caldera Springs expansion would be practically
indiscernible from the volumes related to the event(s).
8. Staff refers to the Oct. 15, 2015, Technical Memo from Kittelson & Associates
which concentrates on the site's access to Vandevert Road and the Vandevert
Road/97 intersection.
Oregon Department of Fish and Wildlife ("ODFW"). ODFW submitted the following
comments via email on October 12, 2015:
ODFW has reviewed the Wildlife Habitat Evaluation Procedure and Mitigation Plan. The
mitigation plan includes modifications to the resort, including an east -west wildlife travel
corridor along the southern boundary of the property. The modifications are in
agreement with ODFW recommendations to maintain wildlife movement through the
247 -15 -000464 -CU - Caldera Springs 6
area. ODFW further recommends that open space be maintained to the extent possible
throughout the development to promote wildlife passage.
The mitigation plan also states that "vegetation would be managed within the corridor to
maintain native plant species that will continue to provide both cover and forage for
wildlife moving through the area" ODFW recommends that as much native vegetation
as possible be established throughout the project site and that nonnative invasive plants
be controlled.
Oregon Department of Transportation ("ODOT"). ODOT requested the original TIA be
revised to reflect the new access point to Vandevert Rd.
Additional Comments
ODOT is satisfied that the project will not adversely affect the operation of the US 97
intersection at Vandevert with the proposed mitigation. The proposed mitigation is to
limit the Vandevert access to construction traffic only or to restrict outbound left -turn
movements until such time as the Vandevert connection to US 97 is closed or restricted.
Restricting outbound left -turns would be less effective and ODOT would request the
opportunity to review the turn -restriction design prior to it being permitted.
In response to staff's question regarding the potential for mitigation in the form of a
median on Highway 97, as identified on page 15 of the amended TIA, ODOT provided
the following response
ODOT is open to discussions to close or restrict access to the US 97/Vandevert
intersection, but the timing of that improvement is uncertain.
La Pine Rural Fire Protection District. Thank you for the opportunity to comment on the
conditional use permit application 247 -15 -000464 -CU to expand the Caldera Springs
resort. The developer has been in contact with the fire district from the very initial
planning phases and has worked to bring this property within the fire district. The
property now has fire protection from La Pine Rural Fire Protection District and additional
summer forestry patrol from the Oregon Department of Forestry. The developer to date
has shown adequate planning for access (roads), water supply (fire hydrants), suitable
firewise building and fire resistive landscaping and other issues pertaining new
developments and the fire codes as well as an excellent performance history with the
existing property development. The district thus supports this new development and has
no issues with the conditional use permit and the requested modification to the
developments master plan per single family and overnight ratios from 2:1 to 2.5:1.
The following agencies did not respond or had no comments. Deschutes County
Assessor, Deschutes County Environmental Soils Division, Watermaster — District 11,
Bend -La Pine School District, Oregon Department of Environmental Quality, Oregon
Department of Forestry, Oregon Department of Aviation — Project and Planning Division,
Deschutes National Forest, Sunriver Utilities, Deschutes County Forester, State Fire
Marshal, and U.S. Fish and Wildlife Service.
H. Public Comments: As of the date of the staff report, a number of emails and letters,
and a petition, were received indicating opposition to the project. Staff identified the
following general opposition issues:
247 -15 -000464 -CU - Caldera Springs 7
1. Greater difficulty merging onto South Century Drive by residents of the
Crosswater development'
2. If ODOT limits access from Highway 97 onto Vandevert Road, traffic onto South
Century Drive will increase exacerbating congestion caused by the proposal
3. Consider roundabout at the entrance to Crosswater/Caldera Springs on South
Century Drive
4. Safety concern for cyclists along South Century Drive due to increased traffic
from the proposal
5. Carrying capacity of utilities and services
6. This annexation should be viewed as a standalone destination resort
7. Increase in rentable units with this proposal creates too much competition for
other owners who rent dwelling units in the area
8. Increased traffic creates concern for students because bus stops are located at
the Crosswater and Caldera Springs entrances
9. Increased traffic creates concern for pedestrians, bicycles, and golf carts moving
between Crosswater and Caldera Springs, and along South Century Drive
10. Increased traffic exacerbates congestion issue during special events that draw
large crowds to Crosswater
11. Increased traffic exacerbates congestion and safety issue at the Vandevert
Road/Highway 97 intersection
12. Impacts to livability within the Powder Village Complex due to location of
secondary access road along the northern boundary of the project site
Additional Comments
Comments submitted since October 22, 2015 public hearing
13. Concern regarding deer and elk casualties due to vehicular strikes
14. Concern regarding dedication of land near Harper Bridge for public river access
15. Access to existing Caldera Springs from South Century Drive is inadequate to
handle increase in traffic from expansion
16. The proposal should be rejected for the same reasons the Governor's Natural
Resource Office rejected a proposal to create a new destination resort on the
subject property
1 The sole access into Crosswater is directly opposite the existing Resort access.
247 -15 -000464 -CU - Caldera Springs 8
17. Concern regarding the cost to replace the Sunriver Sewage Treatment Plant due
to increased use
18. Concern regarding increasing nitrite concentrations due to unsewered lots
19. Appropriateness of clustered communities between Bend and La Pine
20. Expansion will provide positive impact to tourism for the region
I. Notice: The applicant submitted a Land Use Sign Affidavit indicating the land use action
sign was posted on the property on September 3, 2015. A notice of the applications was
mailed on September 11, 2015. Comments from the public and from public agencies
are detailed above. Notice of the public hearing was published in The Bulletin on
October 4, 2015, and mailed to parties of record on October 5, 2015.
J. Lot of Record: The applicant made the following argument on compliance with the
County's lot of record requirement:
Prior to 2006 the subject property was owned by the United States Government, acting
by and through the United States Department of Agriculture aka, the US Forest Service.
Pursuant to the Bend Pine Nursery Land Conveyance Act of 2000 (P.L.106-526: 114
Stat. 2512), Congress authorized the sale of a number of isolated USFS parcels. The
subject property was one such isolated parcel (Tract C Administrative Sale; DES No.
178, Parcel A). The property was conveyed to Pine Forest Development, LLC on
November 14, 2006 pursuant to a quitclaim deed, a copy of which is attached. The deed
was recorded on November 21, 2006 (2006-77006), in the real property records of
Deschutes County.
The subject property is 617.27 acres, more or less, in size, exceeding the 5,000 square
foot minimum. As a federally owned parcel, it was not subject to any state or county
subdivision requirements. The subject lot of record was created by the deed referenced
above and was recorded in the real property records of Deschutes County. Only one
legal description was provided, consequently, the subject property contains only one
legal lot of record.
Staff noted that a Hearings Officer and the Board of County Commissioners made a
finding that the subject property is a legal lot of record for the rezone approval of the
property.2
COLW argued that the subject property is not a lot of record for two reasons. First, that
because the parcel was federally owned and transferred to the applicant, it did not meet
the County subdivision or partition rules. COLW argued that this position is supported by
a prior Hearings Officer decision in Thompson. Second, even though a prior zone
change approved by the BOCC found the parcel to be a lot of record, that decision is not
determinative.
The Hearings Officer agrees with the applicant. As for the BOCC's prior recognition of
the lot, no party argues that the BOCC somehow got that decision wrong in 2006 when
2 Reference land use file number ZC-06-3.
247 -15 -000464 -CU - Caldera Springs 9
the property was rezoned. Of course, the time to appeal that decision is long past.
Even if Thompson militated for a different outcome, which it does not as explained
below, the Hearings Officer considers that prior decision to be the BOCC's interpretation
as to the application of the County's lot of record criteria to the subject property, and
absent any colorable argument that the BOCC erred in that decision, the Hearings
Officer will be adhere to it. As for the application of Thompson, I agree with the applicant
that the facts in that case were significantly different than those at issue here. First,
while Thompson sought to recognize a lot that had been transferred from the federal
government, the applicant's primary argument was that the federal process that led to
the transfer preempted all other local regulation. Here, the applicant does not so argue,
and the transfer appears to be a simple and straight forward quit claim deed conveyance
which fits at least one of the County's lot of record criteria. Second, the applicant in
Thompson sought to have a substandard size lot recognized for the F-1 zone — in order
to have the lot qualify for a lot of record forest dwelling under ORS 215.700. Again, that
is not the case with this application as there is a single lot of approximately 617 acres,
and the applicant is relying on the existing DR designation as the basis for the proposal.
For these reasons, the Hearings Officer finds that the subject property is a legal lot of
record under DCC 18.04.030(A)(3).
K. PROCEDURAL HISTORY: A public hearing was held on October 27, 2015.
The Hearings Officer provided the statements required by ORS 197.763. There
were no ex parte contacts to report, and no party challenged the Hearings
Officer's fitness to conduct the hearing.
Staff provided a PowerPoint outlining the proposal. Several transportation issues
were discussed including an explanation of the traffic counts near Vandevert
Road and reasons why the prior counts and seasonal factors were still current
enough to provide reliable evidence.
The applicant's attorney, Steve Hultberg, provided a short history of the existing
resort and outlined the proposed expansion. He explained that the proposal was
not a standalone resort, but an expansion of the existing resort. The proposal
would encompass about 395 single family residences which is approximately
43% of what would otherwise be permitted. A maximum of 95 new overnight
units were also proposed. He noted that the wildlife plan for the expansion had
received a favorable review from the Oregon Department of Fish and Wildlife.
However, more work was needed on the proposal's wildfire contingency plan.
Sewer and water would rely on existing systems, although the applicant
acknowledged that service expansion might be needed for the new portion of the
resort and, that if so, the resort would pay for its proportionate share of that cost.
Wendy Wente, the applicant's wildlife biologist, explained a 125 acre set aside
built into the proposal. The east — west wildlife corridor would be preserved, she
said, primarily to benefit mule deer. With the open plan of the development and
preservation of existing native plants, she concluded that the proposal met the
"no net loss" of habitat standard required by the DCC.
Matt Kittelson added some transportation information addressing the interchange
at Hwy 97 and S. Century drive, which would serve the new development. Even
with the additional trips, he concluded that the intersection would operate at
247 -15 -000464 -CU - Caldera Springs 10
County required service levels. He acknowledged that the Vandevert/Hwy 97
intersection is planned to be closed sometime in the future and the County's
Transportation System Plan includes that closure. However, ODOT is the
deciding party on when the closure might occur, and no date has yet been set for
the possible closure.
Several individuals from the Sunriver Owners Association ("SROA") testified as
neutral parties. They raised concerns about the capacity of the current water
system to adequately supply water to the expanded resort. Similarly, they voiced
concern about the capacity of the sewer system. Increased traffic impacts on
roads maintained by SROA were also of concern. There was also significant
comment on the potential impact on nearby public recreational facilities. In
particular, SROA members asked for more analysis and action on the Harper
Bridge boat access to the Deschutes River.
Mark Murray speaking for the Sunriver Service District asked whether notice of
the proposal had been provided to the Deschutes County Sheriff, La Pine Fire
District, and Sunriver Police. He was also concerned about the seasonal
adjustment for the traffic counts taken by the applicant. Similar concerns about
the traffic counts were raised by Wade Watson, who noted that during the month
of April when the counts were taken, many seasonal residents were gone, and
the golf course was still closed.
Several individuals raised concerns about the resident mule deer and their ability
to migrate and move safely across Hwy 97.
Carol Macbeth, representing Central Oregon Land Watch ("COLW"), provided
written comments in opposition to the proposal and summarized some of them at
the hearing. She argued that state law does not permit "expansion" of
destination resorts on resource designated lands. She said the expansion
cannot meet the requirements of Statewide Planning Goal 8 for destinations
resorts. She stated that any new development will need an exception to Goal 8.
As for the overnight accommodations required under state law for destination
resorts, she stated that only 38 overnight rentals appear on the resort's website
when 152 are required. As for wildlife habitat, she argued that new
interpretations of the requirements for destination resorts would require 365
acres of habitat mitigation associated with the migration corridor. She also noted
that the Vandevert/Hwy 97 intersection has had 30 accidents in the past 10
years.
Pam Burley argued that the overnight lodging units were insufficient in number
and the additional proposal would not be able to hit the required ratio of overnight
rental to private residential units. She also noted that the analysis on water
quantity was insufficient due to current demands and the golf course.
At the end of the hearing the parties agreed to a continued hearing. The
Hearings Officer set the continued hearing for November 24, 2015 at 6:30 p.m.
The record was left open during this period. On November 24, 2015, severe
snowy weather prevented the public from attending the hearing, and the
applicant agreed to another continuance to December 15, 2015.
247 -15 -000464 -CU - Caldera Springs 11
At the December 15, 2015 hearing, the Hearings Officer again provided the
statements required by ORS 197.763. There were no ex parte contacts to report,
and again no party challenged the Hearings Officer's fitness to conduct the
hearing.
Staff presented an amended Staff Report that accommodated additional
evidence submitted after the October 27, 2015 hearing. The applicant provided
an overview of additional information submitted into the record. The information
included the following:
• Evidence related to the question of whether the subject property
constitutes a "lot of record."
• Information showing that vegetated berms would be constructed on the
subject property along S. Century Drive.
• Applicant's amended wildlife/wildfire plans which attempted to coordinate
the two.
• A refined TIA with the requested seasonal adjustment. Included a memo
from Peter Russell confirming the adjustment still allowed the
development to meet the County's level of service standards.
This information was all presented in a written submission dated November 10,
2015.
Carol Macbeth provided a written comment dated December 15, 2015 and
provided opposition testimony on behalf of COLW. She discussed the following
issues at the hearing:
• Reiterated argument that "expansions" of existing destination resorts are
not allowed under Goal 8.
• She questioned whether the proposal could meet the minimum
investment threshold for destination resorts under state law.
• The existing resort is not meeting the overnight lodging requirements —
only 38 houses and 131 unique rooms. The expansion would perpetuate
that failure.
• The wildfire risk is too high, and there is not an evacuation plan or route
provided.
• DCC 18.113.120 requires that the mitigation for incursion into the mule
deer migration habitat include a conservation easement to protect the
previously identified Goal 5 resource.
• She continued to argue that the subject property does not qualify as a lot
of record.
Ron Buris again raised the concern about recreational access at Harper Bridge.
He argued that the prior destination resort approval included a condition requiring
improvements at the boat access and that condition still had not been met.
247 -15 -000464 -CU - Caldera Springs 12
Staff noted that SROA had submitted an e-mail and attached document into the
record just prior to the hearing.
At the end of the hearing the Hearings Officer considered requests to leave the
record open.
The Hearings Officer set an open record schedule as follows: 1) argument and
evidence from any party could be submitted until December 22, 2015 at 5:00
p.m. — limited to a response to COLW's December 15, 2015 submission, and
SROA's December 15, 2015 email and attached argument, 2) the applicant's
final argument was due December 29, 2015 by 5:00 p.m.
On December 22, 2015, the applicant submitted a letter and exhibits as rebuttal
testimony to the December 15, 2015 submissions by COLW and SROA. In that
letter the applicant requests that the Hearings Officer exclude from the record
SROA's exhibits or attachments to their December 15, 2015 submission because
it was emailed during the hearing and the attachments were hand delivered on
December 16, 2015. The applicant argues that these documents should be
rejected because the record was closed on December 15, 2015.
The Hearings Officer finds that SROA's December 15, 2015 email and
subsequent hand delivery of attachments on December 16, 2015 was sufficient
to include those items in the record. There is no prejudice to any party by
retaining them in the record. All parties were on notice during the hearing that
SROA was submitting documents into the record. The parties were on notice
and had time to respond to those documents by December 22, 2015 as provided
by the Hearings Officer's instructions.
On December 22, 2015, COLW also submitted a letter that purports to comply
with the Hearings Officer's instructions for the open record period. On December
23, 2015, the applicant objected to the submission on the basis that the letter
reiterated prior arguments and statements made during the December 15, 2015
hearing. Upon reviewing the contents of COLW's December 22, 2015 letter, the
Hearings Officer agrees with the applicant that it should not be included in the
record. Based on the Hearings Officer's instructions at the December 15, 2105
hearing, rebuttal testimony would be allowed directed at COLW's December 15,
2015 letter and SROA's December 15, 2015 submission. As such, COLW would
not need to respond to its own December 15, 2015 letter — thereby leaving only
the SROA letter as a valid document to respond to. The December 22, 2015
COLW letter does not respond to SROA's arguments. COLW reiterates prior
arguments and augments rather than providing rebuttal testimony. As such, the
December 22, 2015 letter does not comply with the Hearings Officer's
instructions, is not part of the record, and will not be considered in this decision.
The applicant submitted a final argument on December 29, 2015 in compliance
with the deadline set by the Hearings Officer. On the same day, the applicant
submitted a precautionary response to COLW's December 22, 2105 letter. Since
the Hearings Officer will not consider COLW's December 22, 2015 letter, it will
not be necessary to include in the record or review the applicant's December 29,
2015 response.
247 -15 -000464 -CU - Caldera Springs 13
III. CONCLUSIONS OF LAW:
Section 18.113.080. Procedure for Modification of a Conceptual Master Plan.
Any substantial change, as determined by the Planning Director, proposed to an
approved CMP shall be reviewed in the same manner as the original CMP. An
insubstantial change may be approved by the Planning Director. Substantial change to
an approved CMP, as used in DCC 18.113.080, means an alteration in the type, scale,
location, phasing or other characteristic of the proposed development such that findings
of fact on which the original approval was based would be materially affected.
FINDING: Staff found, and the Hearings Officer agrees, the proposed annexation is a
substantial change which should be reviewed in the same manner as the original CMP. For this
reason, all criteria which apply to destination resorts apply to the subject property and the
applicant's proposal.
Title 18, Deschutes County Zoning Code
A. Chapter 18.40. Forest Use Zone
The following uses and their accessory uses may be allowed in the Forest Use
Zone, subject to applicable provisions of the Comprehensive Plan, DCC 18.40.040
and other applicable sections of DCC Title 18:
D. Destination Resorts where mapped in a DR zone and subject only to the
provisions of DCC 18.113 and other applicable provisions of DCC Title 18
and the Comprehensive Plan not contained in DCC 18.40.
FINDING: The applicant has applied for a conditional use permit to expand the existing
Caldera Springs Destination Resort. The subject property is mapped for destination
resorts on the Deschutes County destination resort map. Significantly, none of the
participating parties argue that the subject property is not covered by the DR zone. The
uses allowed with the DR Zone are listed under DCC 18.113 and are not regulated by
the conditional use criteria set out in the F2 Zone provisions. Likewise, the setbacks and
other development standards for development within a destination resort are not
regulated under DCC 18.40, but are regulated under DCC 18.113. The applicable
provisions of Title 18 and the Comprehensive Plan are addressed below.
B. Chapter 18.80. Airport Safety Combining Zone — AS
1. Section 18.80.044. Land Use Compatibility.
Applications for land use or building permits for properties within the
boundaries of this overlay zone shall comply with the requirements of DCC
18.80 as provided herein. When compatibility issues arise, the Planning
Director or Hearings Body is required to take actions that eliminate or
minimize the incompatibility by choosing the most compatible location or
design for the boundary or use. Where compatibility issues persist,
despite actions or conditions intended to eliminate or minimize the
incompatibility, the Planning Director or Hearings Body may disallow the
use or expansion, except where the action results in loss of current
operational levels and/or the ability of the airport to grow to meet future
247 -15 -000464 -CU - Caldera Springs 14
community needs. Reasonable conditions to protect the public safety may
be imposed by the Planning Director or Hearings Body.
FINDING: The northern half of the annexation property lies within the AS Combining
Zone associated with the Sunriver Airport. The applicable provisions of DCC 18.80 are
addressed below.
A. Noise. Within airport noise impact boundaries, land uses shall be
established consistent with the levels identified in OAR 660, Division
13, Exhibit 5 (Table 2 of DCC 18.80). Applicants for any subdivision
or partition approval or other land use approval or building permit
affecting land within airport noise impact boundaries, shall sign and
record in the Deschutes County Book of Records, a Declaration of
Anticipated Noise declaring that the applicant and his successors
will not now, or in the future complain about the allowed airport
activities at the adjacent airport. In areas where the noise level is
anticipated to be at or above 55 Ldn, prior to issuance of a building
permit for construction of a noise sensitive land use (real property
normally used for sleeping or as a school, church, hospital, public
library or similar use), the permit applicant shall be required to
demonstrate that a noise abatement strategy will be incorporated
into the building design that will achieve an indoor noise level equal
to or Tess than 55 Ldn. [NOTE: FAA Order 5100.38A, Chapter 7
provides that interior noise levels should not exceed 45 decibels in
all habitable zones.]
FINDING: The subject property is located outside of the Sunriver Airport noise impact
boundaries. This criterion does not apply.
B. Outdoor lighting. No new or expanded industrial, commercial or
recreational use shall project lighting directly onto an existing
runway or taxiway or into existing airport approach surfaces except
where necessary for safe and convenient air travel. Lighting for
these uses shall incorporate shielding in their designs to reflect
light away from airport approach surfaces. No use shall imitate
airport lighting or impede the ability of pilots to distinguish between
airport lighting and other lighting.
FINDING: The applicant does not propose any industrial uses. Commercial and
recreational uses are included in the project. The property is located over 3,000 feet
from the Sunriver Airport runway, taxiway, and approach surfaces. The applicant agrees
that lighting for the project will comply with County lighting ordinances and, therefore, will
be shielded and directed in conformance with standards under DCC 18.80.044(8). A
condition of approval for commercial and recreational uses will ensure compliance with
this criterion.
C. Glare. No glare producing material, including but not limited to
unpainted metal or reflective glass, shall be used on the exterior of
structures located within an approach surface or on nearby lands
where glare could impede a pilot's vision.
FINDING: The subject property is over 3,000 feet from the Sunriver Airport approach
surfaces. Moreover, the applicant indicates that no glare producing materials will be
247 -15 -000464 -CU - Caldera Springs 15
used on structures where glare could impede a pilot's vision. No evidence has been
provided that undermines this statement. This criterion is met with a condition of
approval.
D. Industrial emissions. No new industrial, mining or similar use, or
expansion of an existing industrial, mining or similar use, shall, as
part of its regular operations, cause emissions of smoke, dust or
steam that could obscure visibility within airport approach surfaces,
except upon demonstration, supported by substantial evidence, that
mitigation measures imposed as approval conditions will reduce the
potential for safety risk or incompatibility with airport operations to
an insignificant level. The review authority shall impose such
conditions as necessary to ensure that the use does not obscure
visibility.
FINDING: No industrial operations are proposed. This criterion does not apply.
E. Communications Facilities and Electrical Interference. No use shall
cause or create electrical interference with navigational signals or
radio communications between an airport and aircraft. Proposals
for the location of new or expanded radio, radiotelephone, and
television transmission facilities and electrical transmission lines
within this overlay zone shall be coordinated with the Department of
Aviation and the FAA prior to approval. Approval of cellular and
other telephone or radio communication towers on leased property
located within airport imaginary surfaces shall be conditioned to
require their removal within 90 days following the expiration of the
lease agreement. A bond or other security shall be required to
ensure this result.
FINDING: No new or expanded radio, radiotelephone, television transmission facilities
or electrical transmission lines are proposed. This criterion does not apply.
F. Limitations and Restrictions on Allowed Uses in the RPZ, Approach
Surface, and Airport Direct and Secondary Impact Areas.
For the Redmond, Bend, Sunriver, and Sisters airports, the land
uses identified in DCC 18.80 Table 1, and their accessory uses, are
permitted, permitted under limited circumstances, or prohibited in
the manner therein described. In the event of conflict with the
underlying zone, the more restrictive provisions shall control. As
used in DCC 18.80.044, a limited use means a use that is allowed
subject to special standards specific to that use.
FINDING: The subject property is not located within the Runway Protection Zone,
Approach Surface, or the Airport Direct Impact Area. However, the northern half of the
annexation property is within the Airport Secondary Impact Area3 associated with the
Sunriver Airport. Table 1 of DCC 18.80 permits all the proposed uses included in the
Resort expansion. This criterion is met.
3 DCC 18.80 022(1) provides the following definition:
"Airport Secondary Impact Area. The area between 5,000 and 10,000 feet from an airport
runway. (Redmond, Bend and Sunriver)"
247 -15 -000464 -CU - Caldera Springs 16
2. Section 18.80.054. Conditional Uses.
Uses permitted conditionally shall be those identified as conditional uses
in the underlying zone with which the AS Zone is combined, and shall be
subject to all conditions of the underlying zone except as provided in DCC
18.80.044.
FINDING: Destination resorts are permitted conditionally in the underlying F2 Zone and
are, therefore, permitted conditionally in the AS Combining Zone.
3. Section 18.80.072. Water Impoundments.
Any use or activity that would result in the establishment or expansion of a
water impoundment shall comply with the requirements of DCC 18.80.072.
(ORS 836.623(2); OAR 660-013-0080(1)(f)]
C. Process.
5. Exemptions. The requirements of DCC 18.80.072 shall not
apply to:
c. Lands owned or managed by Sunriver Resort,
Crosswater and their affiliates.
FINDING: The subject property is owned and managed by Pine Forest Development,
LLC, an affiliate of Sunriver Resort Limited Partnership. This section does not apply.
4. Section 18.80.076. Water Impoundment Notification.
A. Deschutes County shall provide notice to the Oregon Department of
Aviation when it, or its designee, receives an application for a
comprehensive plan amendment, zone change or permit as defined
in ORS 215.402 or 227.160 that, if approved, would result in a water
impoundment larger than one-quarter acre within 10,000 feet of the
Redmond, Bend, Sunriver or Sisters Airports.
B. A final determination regarding a new water impoundment described
in ORS 836.623 shall be made by local governments as provided in
ORS 836.623.
FINDING: The record shows that notice of the application was mailed to the Oregon
Department of Aviation. No comments were received in response to the notice. This
criterion is met.
C. Chapter 18.84, Landscape Management Combining Zone — LM
1. Section 18.84.020. Application of Provisions.
The provisions of DCC 18.84 shall apply to all areas within one fourth mile
of roads identified as landscape management corridors in the
Comprehensive Plan and the County Zoning Map. The provisions of DCC
18.84 shall also apply to all areas within the boundaries of a State scenic
waterway or Federal wild and scenic river corridor and all areas within 660
feet of rivers and streams otherwise identified as landscape management
247 -15 -000464 -CU - Caldera Springs 17
corridors in the comprehensive plan and the County Zoning Map. The
distance specified above shall be measured horizontally from the
centerline of designated landscape management roadways or from the
nearest ordinary high water mark of a designated landscape management
river or stream. The limitations in DCC 18.84.020 shall not unduly restrict
accepted agricultural practices.
FINDING: No areas of the property are within the boundaries of a State scenic
waterway or Federal wild and scenic river corridor. A small portion of the northwest
corner and a portion of the southwest corner of the property are located within the LM
Combining Zone associated with South Century Drive. A portion of the southeast corner
of the property is within the LM Combining Zone associated with Highway 97. And
finally, a strip of land along the southern edge of the property is within the LM Combining
Zone associated with Vandevert Road. These areas are subject to the provisions of
DCC 18.84.
Staff recommended, and the Hearings Officer agrees, that the conditions of approval
detailed below apply only to those portions of the property subject to the LM Combining
Zone.
2. Section 18.84.040. Uses Permitted Conditionally.
Uses permitted conditionally in the underlying zone with which the LM
Zone is combined shall be permitted as conditional uses in the LM Zone,
subject to the provisions in DCC 18.84.
FINDING: Destination resorts are permitted conditionally in the underlying F2 Zone, and
are, therefore, permitted conditionally in the LM Combining Zone.
3. Section 18.84.050. Use Limitations.
A. Any new structure or substantial alteration of a structure requiring a
building permit, or an agricultural structure, within an LM Zone shall
obtain site plan approval in accordance with DCC 18.84 prior to
construction. As used in DCC 18.84 substantial alteration consists
of an alteration which exceeds 25 percent in the size or 25 percent of
the assessed value of the structure.
B. Structures which are not visible from the designated roadway, river or
stream and which are assured of remaining not visible because of
vegetation, topography or existing development are exempt from the
provisions of DCC 18.84.080 (Design Review Standards) and DCC
18.84.090 (Setbacks). An applicant for site plan review in the LM Zone
shall conform with the provisions of DCC 18.84, or may submit
evidence that the proposed structure will not be visible from the
designated road, river or stream. Structures not visible from the
designated road, river or stream must meet setback standards of the
underlying zone.
FINDING: The applicant's Burden of Proof Exhibit A and A-1, shows the proposed
resort structures will be set back at least 200 feet from South Century Drive, at least 300
feet from Vandevert Road, and at least 1,100 feet from Highway 97. All structures which
247 -15 -000464 -CU - Caldera Springs 18
may be visible from South Century Drive will be buffered through a mix of berms,
setbacks and natural vegetation. Additional evidence submitted during the hearings
process confirmed that the development will not be visible from S. Century Drive.
However, no berms are proposed along Vandevert Road, and therefore, the design
review standards are discussed below. The intervening railroad berm between the resort
and Hwy 97 appears reasonably likely to screen the resort from that direction.
4. Section 18.84.080. Design review standards.
The following standards will be used to evaluate the proposed site plan:
A. Except as necessary for construction of access roads, building
pads, septic drainfields, public utility easements, parking areas, etc.,
the existing tree and shrub cover screening the development from
the designated road, river, or stream shall be retained. This
provision does not prohibit maintenance of existing lawns, removal
of dead, diseased or hazardous vegetation; the commercial harvest
of forest products in accordance with the Oregon Forest Practices
Act, or agricultural use of the land.
FINDING: The record shows that open spaces on the subject property will incorporate
natural forest lands. For the purposes of this criterion, staff found, and the Hearings
Officer agrees, the removal of vegetation in accordance with any wildfire management
plan is allowed as removal of hazardous vegetation. A condition of approval will ensure
compliance with this criterion.
B. It is recommended that new structures and additions to existing
structures be finished in muted earth tones that blend with and
reduce contrast with the surrounding vegetation and landscape of
the building site.
FINDING: All structures which may be visible from South Century Drive, Vandevert
Road, and Highway 97 will be buffered through a mix of berms, setbacks and natural
vegetation. Pursuant to applicable design guidelines, all structures will be finished in
muted earth tones that blend with and reduce contrast with the surrounding vegetation
and landscape of the building site. All development will be consistent with existing
development in Caldera Springs and will match the overall aesthetic of the resort project.
These standards have been incorporated into the resort's Design Guidelines and
administered by the project's Architectural Review committee. A condition of approval
will ensure compliance with this criterion.
C. No large areas, including roofs, shall be finished with white, bright
or reflective materials. Roofing, including metal roofing, shall be
nonreflective and of a color which blends with the surrounding
vegetation and landscape. DCC 18.84.080 shall not apply to
attached additions to structures lawfully in existence on April 8,
1992, unless substantial improvement to the roof of the existing
structure occurs.
FINDING: The record shows that existing development at Caldera Springs does not use
reflective materials or rooftops, and new development within the annexation property will
follow the same design guidelines as apply to Caldera Springs. Large areas, including
247 -15 -000464 -CU - Caldera Springs 19
roofs will not be finished with white, bright or reflective materials. The existing resort's
Design Guidelines will apply to the subject property and will be administered by the
resort's Architectural Review committee. A condition of approval will ensure compliance
with this criterion.
D. Subject to applicable rimrock setback requirements or rimrock
setback exception standards in DCC 18.084.090(E), all structures
shall be sited to take advantage of existing vegetation, trees and
topographic features in order to reduce visual impact as seen from
the designated road, river or stream. When more than one
nonagricultural structure is to exist and no vegetation, trees or
topographic features exist which can reduce visual impact of the
subject structure, such structure shall be clustered in a manner
which reduces their visual impact as seen from the designated road,
river, or stream.
FINDING: Staff concluded that no rimrock, as defined in DCC 18.04.030, exists on-site.
Staff noted that the proposed annexation layout shown in Exhibits A and A-1 establishes
setbacks of at least 200 feet from South Century Drive, at least 300 feet from Vandevert
Road, and at least 1,100 feet from Highway 97.
Except as necessary to accomplish the goals of any wildfire management plan, staff
recommended, and the Hearings Officer agrees, that a condition of approval requiring
the retention of existing vegetation, trees and topographic features that will reduce visual
impact as seen from the above -referenced LM roads.
E. Structures shall not exceed 30 feet in height measured from the
natural grade on the side(s) facing the road, river or stream. Within
the LM Zone along a state scenic waterway or federal wild and
scenic river, the height of a structure shall include chimneys,
antennas, flag poles or other projections from the roof of the
structure. DCC 18.84.080 shall not apply to agricultural structures
located at least 50 feet from a rimrock.
FINDING: A condition of approval will ensure that structures will not exceed 30 feet in
height as measured from the natural grade facing Vandevert Road. No portion of the
property is within a state scenic waterway or federal wild and scenic river.
F. New residential or commercial driveway access to designated
landscape management roads shall be consolidated wherever
possible.
FINDING: The applicant proposes to utilize the access from the existing Resort onto
South Century Drive to the west. In addition, the applicant proposes a single new
access onto Vandevert Road to the south. This criterion is met.
G. New exterior lighting, including security lighting, shall be sited and
shielded so that it is directed downward and is not directly visible
from the designated road, river or stream.
247 -15 -000464 -CU - Caldera Springs 20
FINDING: The applicant indicates that all lighting will comply with the Deschutes County
Outdoor Lighting Ordinance. A condition of approval will ensure compliance with this
criterion.
H. The Planning Director or Hearings Body may require the
establishment of introduced landscape material to screen the
development, assure compatibility with existing vegetation, reduce
glare, direct automobile and pedestrian circulation or enhance the
overall appearance of the development while not interfering with the
views of oncoming traffic at access points, or views of mountains,
forests and other open and scenic areas as seen from the
designated landscape management road, river or stream. Use of
native species shall be encouraged. (Formerly section 18.84.080 (C))
FINDING: The burden of proof shows that landscaped berms may be installed in select
areas along South Century Drive and Vandevert Road. Staff's site visit revealed that
even if no landscaped berms were constructed, the retention of existing vegetation and
tree cover within the proposed setbacks along South Century Drive and Vandevert Road
would comply with this criterion. Staff recommended, and the Hearings Officer agrees,
that a condition of approval should require the retention of existing vegetation, trees and
topographic features which will reduce visual impact as seen from the above -referenced
LM roads, except in those locations where the applicant installs landscaped berms.
I. No signs or other forms of outdoor advertising that are visible from
a designated landscape management river or stream shall be
permitted. Property protection signs (No Trespassing, No Hunting,
etc.,) are permitted.
FINDING: The applicant states that no proposed signs or other forms of outdoor
advertising will be visible from a designated landscape management road. However,
property protection signs (No Trespassing, No Hunting, etc.,) may be visible, as
permitted. A condition of approval is warranted to ensure compliance.
J. A conservation easement as defined in DCC 18.04.280
"Conservation Easement" and specified in DCC 18.116.220 shall be
required as a condition of approval for all landscape management
site plans involving property adjacent to the Deschutes River,
Crooked River, Fall River, Little Deschutes River, Spring River,
Squaw Creek and Tumalo Creek. Conservation easements required
as a condition of landscape management site plans shall not require
public access.
FINDING: As noted previously, the subject property is not adjacent to any LM
designated waterway. This criterion does not apply.
5. Section 18.84.090. Setbacks.
A. Except as provided in DCC 18.84.090, minimum setbacks shall be
those established in the underlying zone with which the LM Zone is
combined.
247 -15 -000464 -CU - Caldera Springs 21
FINDING: As noted under DCC 18.113.060(G)(1), setbacks required by the underlying
F2 Zone do not apply to a destination resort.
B. Road Setbacks. All new structures or additions to existing
structures on lots fronting a designated landscape management
road shall be set back at least 100 feet from the edge of the.
designated road unless the Planning Director or Hearings Body
finds that:
1. A location closer to the designated road would more
effectively screen the building from the road; or protect a
distant vista; or
2. The depth of the lot makes a 100 foot setback not feasible; or
3. Buildings on both lots abutting the subject lot have front yard
setbacks of less than 100 feet and the adjacent buildings are
within 100 feet of the lot line of the subject property, and the
depth of the front yard is not less than the average depth of
the front yards of the abutting lots.
If the above findings are made, the Planning Director or
Hearings Body may approve a Tess restrictive front yard
setback which will be appropriate to carry out the purpose of
the zone.
FINDING: The proposed resort layout, shown in Exhibits A and A-1, establishes
setbacks of at least 200 feet from South Century Drive, at least 300 feet from Vandevert
Road, and at least 1,100 feet from Highway 97. This criterion is met.
D. Chapter 18.88, Wildlife Area Combining Zone — WA
1. Section 18.88.020. Application of Provisions.
The provisions of DCC 18.88 shall apply to all areas identified in the
Comprehensive Plan as a winter deer range, significant elk habitat,
antelope range or deer migration corridor. Unincorporated communities are
exempt from the provisions of DCC 18.88.
FINDING: The WA Combining Zone overlays the western approximately 80 percent of
the property.
2. Section 18.88.040. Uses Permitted Conditionally.
A. Except as provided in DCC 18.88.040(B), in a zone with which the
WA Zone is combined, the conditional uses permitted shall be those
permitted conditionally by the underlying zone subject to the
provisions of the Comprehensive Plan, DCC 18.128 and other
applicable sections of this title.
FINDING: The proposal is conditionally allowed in the underlying F2 Zone and is,
therefore, conditionally allowed in the WA Zone. The F2 Zone standards are addressed
above and the conditional use criteria are addressed under DCC 18.128 below.
247 -15 -000464 -CU - Caldera Springs 22
D. Subject to DCC 18.113, destination resorts are allowed as a
conditional use in that portion of the WA zone designated as the
Bend/La Pine Deer Migration Corridor as long as the property is not
in an area designated as "Deer Migration Priority Area" on the 1999
ODFW map submitted to the South County Regional Problem
Solving Group.
FINDING: The subject property is within the Bend/La Pine deer migration corridor, but is
not within a migration priority area. Staff found, and the Hearings Officer agrees, the
proposed destination resort is conditionally allowed.
3. Section 18.88.060. Siting Standards.
A. Setbacks shall be those described in the underlying zone with which
the WA Zone is combined.
FINDING: As noted under DCC 18.113.060(G)(1), setbacks required by the underlying
F2 Zone do not apply to a destination resort.
B. The footprint, including decks and porches, for new dwellings shall
be located entirely within 300 feet of public roads, private roads or
recorded easements for vehicular access existing as of August 5,
1992 unless it can be found that:
1. Habitat values (i.e., browse, forage, cover, access to water)
and migration corridors are afforded equal or greater
protection through a different development pattern; or,
2. The siting within 300 feet of such roads or easements for
vehicular access would force the dwelling to be located on
irrigated land, in which case, the dwelling shall be located to
provide the least possible impact on wildlife habitat
considering browse, forage, cover, access to water and
migration corridors, and minimizing length of new access
roads and driveways; or,
3. The dwelling is set back no more than 50 feet from the edge
of a driveway that existed as of August 5, 1992.
FINDING: Exhibit A of the supplemental application materials illustrates roads existing
as of 1992. The applicant states that numerous other roads exist which are not initially
apparent from aerial photographs. Rather than attempting to identify every road within
the subject property that existed as of 1992, the applicant addresses the exception
provided in subsection 1 above relating to habitat values.
The applicant states that strict conformance to this approval criterion would allow
residential development within the proposed Wildlife Mitigation Tract, disrupting the
north -south migration corridor, and also allow residential development along Vandevert
Road, disrupting the proposed east -west migration corridor. This would result in
segmented and disconnected habitat areas. Additionally, the applicant argues that this
criterion only applies to new dwellings and that other resort facilities could be located
within the WA Zone beyond the 300 -foot restriction and outside of the WA Zone within
the proposed Wildlife Mitigation Tract. The applicant concludes that the proposed
preservation of the Wildlife Mitigation Tract and the migration corridor along Vandevert
247 -15 -000464 -CU - Caldera Springs 23
Road provides equal, or better, protection of habitat values. This is echoed by Dr.
Wendy Wente in her technical memorandum included as Supplemental Exhibit B. Per
an email dated November 24, 2015, ODFW has no additional comments.
The applicant submitted additional evidence on November 10, 2015. Exhibit A of that
document shows that future footprints of residential dwellings and associated decks and
porches can be located within 300 feet of public or private roads. The Hearings Officer
cannot find contrary argument in the record. This criterion is met.
4. Section 18.88.070. Fence Standards.
The following fencing provisions shall apply as a condition of approval for
any new fences constructed as a part of development of a property in
conjunction with a conditional use permit or site plan review.
A. New fences in the Wildlife Area Combining Zone shall be designed
to permit wildlife passage. The following standards and guidelines
shall apply unless an alternative fence design which provides
equivalent wildlife passage is approved by the County after
consultation with the Oregon Department of Fish and Wildlife:
1. The distance between the ground and the bottom strand or
board of the fence shall be at least 15 inches.
2. The height of the fence shall not exceed 48 inches above
ground level.
3. Smooth wire and wooden fences that allow passage of
wildlife are preferred. Woven wire fences are discouraged.
B. Exemptions:
1. Fences encompassing less than 10,000 square feet which
surround or are adjacent to residences or structures are
exempt from the above fencing standards.
2. Corrals used for working livestock.
FINDING: The applicant indicates that no fences are proposed as part of this
development. A condition of approval will ensure compliance with this criterion.
E. Chapter 18.113. Destination Resorts Zone — DR
1. Section 18.113.025. Application to Existing Resorts.
Expansion proposals of existing developments approved as destination
resorts shall meet the following criteria:
A. Meet all criteria of DCC 18.113 without consideration of any existing
development; or
B. Meet all criteria of DCC 18.113 for the entire development (including
the existing approved destination resort development and the
proposed expansion area), except that as to the area covered by the
existing destination resort, compliance with setbacks and lot sizes
shall not be required.
If the applicant chooses to support its proposal with any part of the
existing development, applicant shall demonstrate that the
proposed expansion will be situated and managed in a manner that
it will be integral to the remainder of the resort.
247 -15 -000464 -CU - Caldera Springs 24
FINDING: The applicant has elected to treat the proposal as an expansion of the
existing resort and meet the criteria under DCC 18.113 for the entire development. The
applicant proposes to meet all the open space, recreation facilities, overnight lodging
and other standards based on calculations for the entire resort. The applicant indicates
that in terms of open space and density, the subject property meets the applicable
standards both in conjunction with the existing Caldera Springs Destination Resort and
as a standalone destination resort. Staff found this to be an acceptable method for
showing compliance with DCC 18.113.
In their December 15, 2105 letter, COLW argues that annexation expansions of
destination resorts are not allowed for several reasons:
• The underlying zone is subject to OAR 660-006 and will not allow such an
expansion
• The expansion is not authorized by Goal 8.
• Based on the above, the proposal amounts to a rural residential subdivision
which is not allowed on forest land.
• The applicant's interpretation places DCC 18.113.025 in conflict with DCC
18.40.030.
• The applicant's interpretation conflicts with the County's Comprehensive
Plan policy 2.3.5.
The applicant counters in their December 22, 2015 and December 29, 2015 letters that
the BOCC has already interpreted DCC 18.113.025 to allow expansions of existing
destination resorts in the Eagle Crest expansion allowed through CU-99-85/Eagle Crest
III. The applicant further argues that destination resorts are allowed on forest zones
through OAR 660-006-025(3)(n). Had the subject property been available at the time
Caldera Springs was initially approved, the expansion area could have been approved
along with it consistent with all the applicable provisions of DCC 18.113. The applicant
asserts that in 2006 the expansion area could have been allowed as a phase II of
Caldera Springs.
The Hearings Officer agrees with the applicant for several reasons. First, although it is
unclear whether arguments similar to those made by COLW here were also made in the
Eagle Crest III process, that final decision (in the record as Exhibit 3 of the applicant's
December 22, 2105 letter) shows that the BOCC did interpret DCC 18.113.025 to allow
expansions of existing destination resorts. As such, the Hearings Officer owes some
deference to that prior interpretation.
Second, in order for DCC 18.113.025 to be applicable in Eagle Crest III, that section
would have had to have been reviewed and acknowledged at some prior date by the
Department of Land Conservation and Development and determined to be compliant
with state statute and Goal 8. COLW presents no evidence to the contrary. COLW's
argument that a similar interpretation in this case is not insulated by that
acknowledgment process is incorrect. In fact, COLW's argument likely constitutes an
impermissible collateral attack on DCC 18.113.025 for those same reasons.
247 -15 -000464 -CU - Caldera Springs 25
Third, the manner in which the BOCC has interpreted DCC 18.113.025 does not on its
face allow an applicant to side step any of the other requirements of the County
provisions that apply to destination resorts. The applicant correctly argues that a
separate standalone destination resort could be allowed on the subject property, in part
because the subject property is covered by the DR zone. If an expansion of an existing
and adjacent resort is subject to the very same rules there is no logical reason why such
an expansion would necessarily not be compliant with the applicable state statutes and
Goal 8.
For this same reason, the Hearings Officer rejects COLW's argument that in order to
qualify as an "expansion" the initial Caldera Springs Conceptual Master Plan ("CMP")
must have identified the expansion area. The applicant is correct to point out that there
is no such requirement in the code. Similarly, there is no evidence to support COLW's
argument that those participating in the initial Caldera Springs review would have
objected if they had known the resort might expand in the future. The record seems to
indicate that the subject property was designated DR at that time — qualifying it for a
resort. In any case, those individuals interested in the currently proposed expansion
have been notified and have had an opportunity to comment. The Hearings Officer can
find no error here. This criterion is met.
2. Section 18.113.030. Uses in Destination Resorts.
The following uses are allowed, provided they are part of, and are intended
to serve persons at, the destination resort pursuant to DCC 18.113.030 and
are approved in a final master plan:
A. Visitor oriented accommodations designed to provide for the needs
of visitors to the resort:
1. Overnight lodging, including lodges, hotels, motels, bed and
breakfast facilities, time share units and similar transient
lodging facilities;
2. Convention and conference facilities and meeting rooms;
3. Retreat centers;
4. Restaurants, lounges and similar eating and drinking
establishments; and
5. Other similar visitor oriented accommodations consistent
with the purposes of DCC 18.113 and Goal 8.
FINDING: Staff found, and the Hearings Officer agrees, that the uses sought in the
applicant's proposal fall within the list of uses allowed under this section. The applicant
indicates that the expansion will include between 65 and 96 additional overnight lodging
units. Assuming full build -out of Caldera Springs and the annexation property of 715
total residential units, a minimum of 286 OLUs, at the proposed 2.5:1 ratio, will be
required for the entire resort. At the present time, the developer anticipates that a
maximum of 96 OLUs will be located on the annexation property with the balance to be
constructed on the remaining lots within Caldera Springs on which no OLUs have yet
been constructed. The OLUs are anticipated to match the Caldera Cabin model used in
Caldera Springs, with each cabin including a range of between three and five lodging
units per cabin. The annexation property is also anticipated to include two separate
resort cores, each with additional resort amenities available for owners and guests.
247 -15 -000464 -CU - Caldera Springs 26
Additional pool, food and beverage, and other resort amenities will be included as the
project progresses.
B. Developed recreational facilities designed to provide for the needs
of visitors and residents of the resort;
1. Golf courses and clubhouses;
2. Indoor and outdoor swimming pools;
3. Indoor and outdoor tennis courts;
4. Physical fitness facilities;
5. Equestrian facilities;
6. Wildlife observation shelters;
7. Walkways, bike paths, jogging paths, equestrian trails;
8. Other similar recreational facilities consistent with the
purposes of DCC 18.113 and Goal 8.
FINDING: Similar to the existing Resort, the applicant states that recreational amenities
will be subject to refinement throughout the life of the Resort based on market demand,
and the needs and desires of residents and guests. Likely additional recreational
amenities for the annexation property will include multi-purpose pedestrian and bicycle
path network; various man-made lakes and meandering stream water features; pool
facility; and additional resort core areas. Staff notes that the existing Resort includes a
nine -hole short golf course, pool and fitness center, tennis and pickle ball courts, and
kids playground.
C. Residential accommodations:
1. Single family dwellings;
2. Duplexes, triplexes, fourplexes and multi family dwellings;
3. Condominiums;
4. Townhouses;
5. Living quarters for employees;
6. Time share projects.
FINDING: According to the burden of proof, the annexation property will include a range
of between 325 and 395 residential units and may include a mix of the types of
accommodations listed above. The specific housing product type will largely depend on
market demand as the project matures. The applicant states that at all times, the Resort
will demonstrate compliance with the 2.5:1 required residential and overnight lodging
ratio. The proposed residential accommodations will conform to this criterion.
D. Commercial services and specialty shops designed to provide for
the visitors to the resort:
1. Specialty shops, including but not limited to delis, clothing
stores, bookstores, gift shops and specialty food shops;
2. Barber shops/beauty salons;
3. Automobile service stations limited to fuel sales, incidental
parts sales and minor repairs;
4. Craft and art studios and galleries;
5. Real estate offices;
6. Convenience stores;
7. Other similar commercial services which provide for the
needs of resort visitors and are consistent with the purposes
of DCC 18.113 and Goal 8.
247 -15 -000464 -CU - Caldera Springs 27
FINDING: The existing resort core in Caldera Springs features a clubhouse that
includes food and beverage retail areas, as well as recreational spaces, including a
fitness center, locker rooms, indoor and outdoor pools, and child -oriented game areas
reminiscent of a "family room." The additional resort core areas are anticipated to
include complimentary uses to meet guest and owner demands as the resort develops.
Complimentary uses can include food, beverage, and pool facilities, pedestrian and bike
paths, and man-made lakes and meandering streams.
E. Uses permitted in open space areas generally include only those
uses that, except as specified herein, do not alter the existing or
natural landscape of the proposed open space areas. No
improvements, development or other alteration of the natural or
existing landscape shall be allowed in open space areas, except as
necessary for development of golf course fairways and greens,
hiking and bike trails, lakes and ponds and primitive picnic facilities
including park benches and picnic tables. Where farming activities
would be consistent with identified preexisting open space uses,
irrigation equipment and associated pumping facilities shall be
allowed.
FINDING: Staff found that the annexation property will include approximately 256 acres
of dedicated open space throughout the project. The open space areas will largely be
devoted to passive uses, including bicycle and hiking trails, along with small picnic and
park areas. Lakes and ponds are planned for open space areas, although the precise
locations, size and design have not been finalized at this time. In addition to dedicated
open space, the annexation property includes a 125 -acre Wildlife Mitigation Tract which
is in addition to the dedicated open space. The Wildlife Mitigation Tract is described
below in more detail. The Wildlife Mitigation Tract and the dedicated open space areas
will be subject to two separate management plans. In general terms, the Wildlife
Mitigation Tract is intended as a set aside and will not include any resort -related
improvements. This criterion is met.
F. Facilities necessary for public safety and utility service within the
destination resort.
FINDING: The applicant does not propose any new public safety facilities. Police
protection will be provided by the Deschutes County Sheriffs Department. Emergency
medical service will be provided from St. Charles in Bend and the medical clinic at
Sunriver. The applicant's Exhibit S is Board Order No. 2014-042, accepting the subject
property into the La Pine Rural Fire Protection District (LPRFPD). LPRFPD commented
as follows:
"The property now has fire protection from La Pine Rural Fire Protection District
and additional summer forestry patrol from the Oregon Department of Forestry.
The developer to date has shown adequate planning for access (roads), water
supply (fire hydrants), suitable firewise building and fire resistive landscaping and
other issues pertaining new developments and the fire codes as well as an
excellent performance history with the existing property development. The district
thus supports this new development and has no issues with the conditional use
permit and the requested modification to the developments master plan per
single family and overnight ratios from 2:1 to 2.5:1."
247 -15 -000464 -CU - Caldera Springs 28
No new utility facilities are included in the application materials. The applicant's Exhibit
K includes intent to serve letters from Cascade Natural Gas for natural gas; Midstate
Electric Cooperative, Inc. for electricity; Bend Broadband for telephone and cable
services; CenturyLink for telephone service; and Wilderness Garbage & Recycling for
solid waste service. The applicant indicates that the existing Sunriver Water LLC
domestic water distribution system will be extended to serve the annexation property.
Exhibit G is a copy of a Water Service Agreement. The applicant also indicates that the
Sunriver Wastewater Treatment Plant has the capacity to adequately serve the
annexation property. Exhibit H is a copy of a Sewer Service Agreement.
These uses are allowed under this section. Staff recommends, and the Hearings Officer
agrees, that a condition of approval requiring the applicant to provide signed agreements
for water and sewer service prior to Final Master Plan approval is warranted.
G. Other similar uses permitted in the underlying zone consistent with
the purposes of DCC 18.113.030.
FINDING: At the present time, the applicant does not propose any additional uses on
the annexation property or Caldera Springs in general. The applicant indicates that
amenities will be subject to refinement throughout the life of the resort, market demand,
and the needs and desires of residents and guests, and will be subject to further county
review.
H. Accessory Uses in Destination Resorts:
1. The following accessory uses shall be permitted provided
they are ancillary to the destination resort and consistent
with the purposes of DCC 18.113 and Goal 8:
a. Transportation related facilities excluding airports;
b. Emergency medical facilities;
c. Storage structures and areas;
d. Kennels as a service for resort visitors only;
e. Recycling and garbage collection facilities;
f. Other similar accessory uses consistent with the
purposes of DCC 18.113 and Goal 8.
FINDING: The applicant does not propose to include any of the accessory uses listed in
DCC 18.113.030(H). The applicant indicates that amenities will be subject to refinement
throughout the life of the resort, market demand, and the needs and desires of residents
and guests. Any additional accessory uses will be subject to further county review.
3. Section 18.113.050. Requirements for conditional use permit and conceptual
master plan applications.
The CMP provides the framework for development of the destination resort
and is intended to ensure that the destination resort meets the
requirements of DCC 18.113. The CMP application shall include the
following information:
A. Illustrations and graphics to scale, identifying:
1. The location and total number of acres to be developed as a
planned destination resort;
247 -15 -000464 -CU - Caldera Springs 29
FINDING: The applicant's Exhibits A, A-1 and B depict the location and acreage of the
property.
2. The subject area and all land uses adjacent to the subject
area;
FINDING: The applicant's Exhibit B illustrates the subject area and adjacent land uses.
3. The topographic character of the site;
FINDING: The application materials do not include a topographic map. However, the
applicant's Stormwater Disposal and Erosion Control Master Plan, submitted as Exhibit
L, states that the property is generally flat, with natural ground slopes ranging from zero
to six percent, with limited areas up to 12 percent.
COLW argues that this section is not met because no topographic map has been
included in the materials. The Hearings Officer finds that this section does not expressly
call for a map. A description of the property or other maps and information describing
the "topographic character" are sufficient to satisfy this section. Those materials exist in
the record.
4. Types and general location of proposed development uses,
including residential and commercial uses;
FINDING: The applicant's Exhibits A and A-1 depict the general location of residential
and resort core uses, and the Wildlife Mitigation Tract. The applicant's November 10,
2015 submission contains similar information.
5. Major geographic features;
FINDING: No major geographic features exist on-site.
6. Proposed methods of access to the development, identifying
the main vehicular circulation system within the resort and an
indication of whether streets will be public or private;
FINDING: The applicant's Exhibits A and A-1 show the general location of internal
streets and the three proposed access points. The burden of proof indicates that all
internal streets will be privately owned and maintained by the homeowner's association.
7. Major pedestrian, equestrian and bicycle trail systems;
FINDING: The applicant's Exhibit R, Vehicular and Pedestrian Access Plan and
Roadway Standards, describes a ten -foot -wide multi -use path network, similar to that
used within the existing Resort. No map or illustration of the multi -use path network
within the annexation property was included in the application materials.
COLW argues that no map with the multi -use path network is in the record. The
applicant counters that the CMP contains all of this information.
The Hearings Officer finds that the CMP is sufficient to determine the major pedestrian
and bicycle trail systems. The applicant submitted additional information in Exhibit 8 of
their December 22, 2015 submission that shows the location of trails.
247 -15 -000464 -CU - Caldera Springs 30
8. Important natural features of the site, including habitat of
threatened or endangered species, streams, rivers, wetlands
and riparian vegetation within 200 feet of streams, rivers and
wetlands.
FINDING: As noted above, the expansion property is generally flat with no significant
topographic features on-site. Additionally, the subject property contains no habitat of
threatened or endangered species, and no natural streams, rivers, wetlands, or riparian
vegetation.
9. All uses proposed within landscape management corridors
identified by the comprehensive plan or zoning ordinance.
FINDING: The subject property is covered by the LM Combining Zones associated with
South Century Drive, Vandevert Road and Highway 97. Based on staffs review of the
county's Geographic Information System ("GIS") map, uses within the above -referenced
LM corridors will include residences, roadways, open space and the Wildlife Mitigation
Tract. The Hearings Officer finds that staff's review is sufficient to satisfy this criterion.
10. The location and number of acres reserved as open space,
buffer area, or common area. Areas designated as "open
space," "buffer area," or "common area" should be clearly
illustrated and labeled as such;
FINDING: The applicant's Exhibits A and A-1 depict the general locations of residential
uses, resort amenities, visitor -oriented accommodations, and the Wildlife Mitigation
Tract. Staff concluded that all other areas are dedicated open space.
COLW argues that no map of open space, buffer areas and common areas exists in the
record. The applicant counters that the CMP provides all the required information.
The Hearings Officer finds that this criterion does not require a single map to illustrate
each area. The CMP is sufficient. In addition, the applicant's November 10, 2015
submission contains multiple maps and information to clarify the location of the areas
covered by this section. This criterion is met.
11. All proposed recreational amenities;
FINDING: The applicant's Exhibits A and A-1 illustrates the general location of
proposed resort amenities.
12. Proposed overall density.
FINDING: The applicant's Land Use Summary at the top of Exhibits A and A-1 detail the
proposed density of residential lots and visitor -oriented accommodations. This same
summary is presented in tabular form in the burden of proof.
B. Further information as follows:
1. A description of the natural characteristics of the site and
surrounding areas, including a description of resources and
247 -15 -000464 -CU - Caldera Springs 31
the effect of the destination resort on the resources; methods
employed to mitigate adverse impacts on resources; analysis
of how the overall values of the natural features of the site
will be preserved, enhanced or utilized in the design concept
for the destination resort; and a proposed resource
protection plan to ensure that important natural features will
be protected and maintained. Factors to be addressed
include:
a. Compatibility of soil composition for proposed
development(s) and potential erosion hazard;
FINDING: The applicant's Stormwater Disposal and Erosion Control Master Plan,
submitted as Exhibit L, details the applicant's plan to manage erosion and stormwater.
The applicant's burden of proof states that the soils on-site include loose sands and silt
at the surface and highly compressible diatomaceous silt at depth. The staff accepted
this information and there is no contrary evidence to conclude that the soil conditions on
the property are incompatible with the proposed uses. This criterion is met.
b. Geology, including areas of potential instability;
FINDING: The burden of proof does not identify any areas of potential instability.
c. Slope and general topography;
FINDING: As noted previously, the annexation property is generally flat with slopes
ranging from zero to six percent, with limited areas of up to 12 percent.
d. Areas subject to flooding;
FINDING: The burden of proof states that the groundwater table fluctuates on the
annexation property. Shallow groundwater may be encountered due to deep excavation
associated with sewer trenching and lake construction/lining. The applicant states that it
will minimize construction impacts from shallow groundwater by dewatering; summer
and fall construction to coincide with the naturally lowered groundwater table; and
potential use of trenchless technologies to avoid open trench construction.
Staff found that the subject property is not within a mapped flood plain or wetland. No
natural streams, rivers or other waterways exist on-site. This criterion is met.
e. Other hazards or development constraints;
FINDING: The burden of proof does not identify any other hazards or development
constraints. The record does not contain any relevant contrary evidence.
f. Vegetation;
FINDING: The burden of proof states that much of the subject acreage was logged in
the 1940s. Consequently, tree coverage is now predominantly lodgepole and ponderosa
pine. Logging debris and slash are evident throughout the site. The annexation
property is scarred by a number of logging roads, recreational vehicle trails and a large
transmission line corridor. Small diameter lodgepole pine thickets are evident
247 -15 -000464 -CU - Caldera Springs 32
throughout. Open meadows of golden fescues and native grasses are interspersed
throughout the annexation property. Some bitterbrush and native shrubs are also
present. The Wildlife Habitat Evaluation submitted as Exhibit C describes the property in
greater detail.
g.
Water areas, including streams, lakes, ponds and
wetlands;
FINDING: No natural water areas exist on-site. The applicant notes that there are high
water table areas that can be subject to ponding during rainy periods.
h. Important natural features;
FINDING: The predominant natural feature on-site is the ponderosa and lodgepole pine
forest. No other significant natural features exist on-site.
i. Landscape management corridors;
FINDING: Applicable LM corridors are addressed in the burden of proof and in this
decision above.
j. Wildlife.
FINDING: The applicant's Exhibits C and C-1 detail wildlife and habitat on-site.
2. A traffic study which addresses (1) impacts on affected
County, city and state road systems and (2) transportation
improvements necessary to mitigate any such impacts. The
study shall be submitted to the affected road authority (either
the County Department of Public Works or the Oregon
Department of Transportation, or both) at the same time as
the conceptual master plan and shall be prepared by a
licensed traffic engineer to the minimum standards of the
road authorities.
FINDING: The applicant's TIA was submitted as Exhibit D. In addition, a revised TIA
was submitted on October 19, 2015.
At the public hearings and in written submissions participants raised concerns about the
initial TIA. One concern was that the vehicle counts used had not been appropriately
seasonally adjusted. The applicant submitted a refined analysis dated November 17,
2015 which confirms that all of the surrounding roads will have sufficient capacity to
meet the County's level of service standards if the proposal is approved. This
information is supported by a November 20, 2015 memo from Senior Transportation
Planner, Peter Russell.
A second concern was with the potential closure of Vandevert Road at Hwy 97. Again,
Peter Russell addressed these concerns in a December 17, 2015 memo. His memo
relies in part on ODOT's statement of when and how Vandevert Road/Hwy 97
intersection might be changed in the future dated November 20, 2015. The memo
explains why it is appropriate for the TIA to assume that the intersection will remain open
for the purposes of considering the impact of the resort. The primary reason is that
247 -15 -000464 -CU - Caldera Springs 33
ODOT is responsible to that intersection and must step through a process prior to any
changes. That will trigger public hearings before the BOCC. Until that time, it is
appropriate to rely on the Vandevert Road/Hwy 97 intersection as it is.
The Hearings Officer finds the TIA and the applicant's information sufficient to satisfy this
criterion. There is no credible contrary evidence in the record.
3. A description of how the proposed destination resort will
satisfy the standards and criteria of DCC 18.113.060 and
18.113.070;
FINDING: The applicant' burden of proof specifically addresses DCC 18.113.060 and
18.113.070.
4. Design guidelines and development standards defining visual
and aesthetic parameters for:
a. Building character;
b. Landscape character;
c. Preservation of existing topography and vegetation;
d. Siting of buildings; and
e. Proposed standards for minimum lot area, width,
frontage, lot coverage, setbacks and building heights.
FINDING: The applicant's Design Guidelines and Development Standards are
submitted as Exhibit E-2. The Open Space Management Plan submitted as Exhibit F
details the proposed uses, management and preservation of open space areas. The
applicant proposes the same Dimensional Standards that were approved with the
existing Resort. The specific Dimensional Standards are detailed below.
5. An open space management plan which includes:
a. An explanation of how the open space management
plan meets the minimum standards of DCC 18.113 for
each phase of the development;
b. An inventory of the important natural features
identified in the open space areas and any other open
space and natural values present in the open space;
c. A set of management prescriptions that will operate to
maintain and conserve in perpetuity any identified
important natural features and other natural or open
space values present in the open space;
d. Deed restrictions that will assure that the open space
areas are maintained as open space in perpetuity.
FINDING: The applicant's Exhibit F is the proposed Open Space Management Plan. It
defines open space and typical uses for designated open space. Some open space
areas are evident on the conceptual master plan, but the applicant has proposed that
most detailed descriptions of open space will be provided at the time of actual
development. The open space plan also describes management practices for the
various types and uses of open space. A number of management prescriptions are
listed to preserve and enhance open space into perpetuity. As the resort matures, open
space will be managed by the homeowner's association. The submitted Open Space
247 -15 -000464 -CU - Caldera Springs 34
Management Plan describes the types and uses of improvements allowed in open
spaces, pursuant to Chapter 18.113.
The CCRs stipulate the preservation of common areas in perpetuity. The applicant
states that open space alternatives have been identified in conceptual master plan
alternatives, with final open space use and location to be defined in subsequent land use
actions. The applicant states that open space use and location will conform to the
requirements and definition of stipulated open space. This criterion is met.
6. An explanation of public use of facilities and amenities on the
site.
FINDING: The annexation property will utilize the existing amenities at Caldera Springs
and, as described above, will include additional resort core areas which will be available
for owners and guests. A paved trail system will also be integrated with the existing
pathway system at Caldera Springs.
7. A description of the proposed method of providing all utility
systems, including the location and sizing of the utility
systems;
FINDING: The revised staff report provides additional findings that support the Hearings
Officer's conclusions below.
Domestic Water
The applicant proposes to provide domestic water via extension of Sunriver Water LLC
("SWLLC"), from Caldera Springs. Exhibit I is the water supply plan for the annexation
property. The applicant states that this plan demonstrates that the existing SWLLC
water supply system has adequate capacity to meet the needs of the annexation
property. Existing storage facilities are available to serve all residents of the applicant's
existing and proposed projects, and to assure fire protection. No additional capacity
improvements are required to serve the project. The applicant indicates that it will be
solely responsible for the costs associated with extending water service to the
annexation property and for the installation of on-site water supply infrastructure.
The burden of proof states that SWLLC has water rights to accommodate the residential
development, irrigation, and fire protection for the annexation property. Prior to final plat
approval, the applicant states that SWLLC will obtain approval to expand its service
territory through a request to the Oregon Public Utility Commission.
SROA raised concerns about the impact of the expanded resort on the existing water
system that serves Sunriver and Caldera Springs. In SROA's December 15, 2105
submittal, they detail some reasons for their concern that the existing system is not
robust enough to serve the expanded resort. Part of this information comes from a 2014
Public Utility Commission docet. That information does not explicitly state that the water
system is not large enough to supply the needed domestic water for the expansion.
SROA also submitted analysis by Fodor & Associates questioning the capacity of the
existing system and the applicant's reliance on it.
247 -15 -000464 -CU - Caldera Springs 35
The applicant provided responsive evidence in their November 10, 2015 submission
which contains November 10, 2015 analysis by Parametrix. The applicant gives a frank
assessment of the current system and notes that several improvements to the water
system are already needed for pumps and storage. The applicant's evidence shows that
sufficient water and rights exist to serve expanded resort, but the system will need
upgrades.
The Hearings Officer finds that the evidence in the record is sufficient to show
compliance with this criterion as it applies to domestic water (including water for fire
protection). Although there is competing expert testimony, none of the evidence
demands a conclusion that water cannot be made available for the applicant's proposal.
SROA's concern is understandable. However, the supposition that this criterion requires
a demonstration that a water system must currently have adequate capacity is incorrect.
The criterion only requires proof of a method and sizing. That has been done here —
with the concession that the applicant will be responsible for the cost of some of the
upgrades to the system. Importantly, and as SROA correctly notes, any request for a
system expansion must be undertaken through a public PUC process which will give
current SROA members a chance to participate and comment on the cost to ratepayers.
Wastewater Treatment Facilities
The applicant's Exhibit J is a wastewater treatment review, which summarizes the
results of the flow and load projections, and wastewater treatment capacity evaluation of
the annexation proposal. The review indicates that the existing wastewater treatment
plant has capacity to serve Sunriver's existing connections plus the addition of the
annexation property.
SROA made comments on the existing sewer system very similar to those they made
about domestic water. The applicant responded in the same submissions and memos
noted above. Again, there is a disagreement about existing capacity. However, the
applicant has provided sufficient evidence that the existing sewer system has sufficient
capacity. The applicant concedes that future upgrades will be needed. However, again
the expanded resort will be required to pay a proportionate share of those costs when
the improvements are made. This evidence is sufficient to satisfy the criterion.
Electricity
The applicant's Exhibit K includes a "will -serve" letter from MidState Electric.
Natural Gas
The applicant's Exhibit K includes a "will -serve" letter from Cascade Natural Gas.
Telephone
The applicant's Exhibit K includes a "will -serve" letter from Century Link.
8. A description of the proposed order and schedule for
phasing, if any, of all development including an explanation
of when facilities will be provided and how they will be
247 -15 -000464 -CU - Caldera Springs 36
secured if not completed prior to closure of sale of individual
Tots or units;
FINDING: The applicant states that development of the annexation property will be
constructed in phases to comply with market demand. Typical phase boundaries are
denoted on the conceptual master plan and submitted as Exhibits A and A-1. The
applicant has noted, however, that the phased boundaries and sequence are subject to
change with market demand.
The applicant's December 29, 2015 states that the CMP depicts the phased
development of the resort. See findings for DCC 18.113.060(E).
9. An explanation of how the destination resort has been sited
or designed to avoid or minimize adverse effects or conflicts
on adjacent lands. The application shall identify the
surrounding uses and potential conflicts between the
destination resort and adjacent uses within 660 feet of the
boundaries of the parcel or parcels upon which the resort is
to be developed. The application shall explain how any
proposed buffer area will avoid or minimize adverse effects or
conflicts;
FINDING: Staff found that land to the north of the annexation property within 660 feet is
comprised of the Sunriver Business Park, the Burlington Northern main line and vacant
forest property owned by the USFS. The Burlington Northern main line provides a
significant barrier between the annexation property and the USFS lands. The back of
Business Park improvements, including storage and parking, abut the subject property to
the north. The existing Midstate Electric Cooperative substation is also sited at the north
property line. The applicant indicates that berms and/or setbacks will screen and buffer
the annexation property from the electrical substation and the back door operations of
the Sunriver Business Park. Staff concluded that given the narrow width in this area,
very little development is anticipated. It is anticipated that less than 15 to 20 homes will
be within 660 feet of the business park.
Property to the west of the subject property is comprised of the existing Caldera Springs
resort. The annexation property will be fully integrated with Caldera Springs. For this
reason, Staff concluded that there is no need to create any additional buffers between
the phases. As depicted on the site plan, significant buffers and dedicated open spaces
will be maintained between the two phases of Caldera Springs.
The Crosswater development and Vandevert Ranch are located west of the annexation
property, across South Century Drive. A significant berm was constructed to buffer
Crosswater from the noise and visual impacts of South Century Drive. The existing
berm will also buffer Crosswater from the annexation proposal. A similar berm was
constructed by the applicant on the easterly side of South Century Drive in connection
with the initial development of Caldera Springs. In addition, the southwest corner of the
property includes a small strip of undevelopable land along South Century Drive. The
combination of berms and the existing South Century Drive establishes an effective
buffer between the annexation property, and the Crosswater development and
Vandevert Ranch.
247 -15 -000464 -CU - Caldera Springs 37
South of Vandevert Road there is a combination of undeveloped forest land and a rural
subdivision platted as Vandevert Acres. The existing residential development is more
than 660 feet from the property line. The annexation property will include a setback of
approximately 150 feet from Vandevert Road. This setback will provide significant
buffering from any future development south of Vandevert Road. In addition, the
setback will provide an east -west migration corridor for mule deer and other wildlife
species.
Property to the east of the annexation property includes the Burlington Northern main
line and Highway 97. The 125 -acre Wildlife Mitigation Tract will provide a significant
buffer between the annexation property and these adjacent uses.
The Hearings Officer agrees with Staffs conclusions that the proposed design of the
resort will minimize adverse impacts on surrounding lands.
10. A description of the proposed method for providing
emergency medical facilities and services and public safety
facilities and services including fire and police protection;
FINDING: Police protection will be provided by the Deschutes County Sheriffs
Department. Fire protection will be provided by La Pine Rural Fire Protection District.
Emergency medical service will be provided from St. Charles in Bend and the medical
clinic at Sunriver. The applicant states that Sunriver medical and public safety services
may be the first responder in an emergency, given the close proximity of the subject
property to the Sunriver Resort, and the first responder agreements that are in place
between the various medical and public safety providers in the county.
11. A study prepared by a hydrologist, engineering geologist or
similar professional certified in the State of Oregon
describing:
a. An estimate of water demands for the destination
resort at maximum buildout, including a breakdown of
estimated demand by category of consumption,
including but not limited to residential, commercial,
golf courses and irrigated common areas;
b. Availability of water for estimated demands at the
destination resort, including (1) identification of the
proposed source; (2) identification of all available
information on ground and surface waters relevant to
the determination of adequacy of water supply for the
destination resort; (3) identification of the area that
may be measurably impacted by the water used by the
destination resort (water impact area) and an analysis
supporting the delineation of the impact area; and (4) a
statistically valid sampling of domestic and other wells
within the impact area;
c. A water conservation plan including an analysis of
available measures which are commonly used to
reduce water consumption. This shall include a
justification of the chosen water conservation plan.
The water conservation plan shall include a
wastewater disposal plan utilizing beneficial use of
reclaimed water to the maximum extent practicable.
247 -15 -000464 -CU - Caldera Springs 38
For the purposes of DCC 18.113.050, beneficial uses
shall include, but are not limited to:
i. Irrigation of golf courses and greenways;
ii. Establishment of artificial wetlands for wildlife
habitation.
FINDING: The applicant retained Parametrix to prepare a water supply system master
plan, evaluate and report on the availability of water, estimate demands of the resort,
develop a water conservation plan and evaluate any water impact area. Parametrix
concludes that at final project build -out, the water system for the resort will serve
approximately 414 equivalent dwelling units, 25 acres of parks, meadow and
landscaping, nine acres of water features and approximately 34 acres of irrigation water.
Total domestic water consumption is estimated at 278 gallons per minute ("gpm"), while
irrigation water is anticipated at 191 gpm.
As noted above, the findings above conclude the existing Sunriver Water LLC water
supply is adequate to serve the annexation property together with the remainder of
SRWLLC's service area. The applicant indicates that water mains will be extended to
and through the annexation property to provide an efficient looped network with ample
capacity and reliability.
In addition, the applicant provided an analysis by Parametrix, in a December 21, 2015
memo, showing that Sunriver Water LLC has sufficient water rights to serve the project
without new water rights being obtained. These criteria are met.
12. An erosion control plan for all disturbed land, as required by
ORS 468. This plan shall include storm and melt water
erosion control to be implemented during all phases of
construction and permanent facilities or practices for the
continuing treatment of these waters. This plan shall also
explain how the water shall be used for beneficial use or why
it cannot be used as such;
FINDING: The applicant's Exhibit L is an erosion control plan that addresses soil
conditions, natural topography, and anticipated stormwater runoff. The plan concludes
that the relatively permeable surface soils will facilitate surface infiltration of stormwater.
The plan states that erosion control plans and measures will give consideration as
required to ORS 468. Further, it states that plans will be prepared and reviewed during
all phases of construction, including practices for continual treatment of stormwater.
COLW argued that the applicant had not explained how stormwater might be used for
beneficial use. In their December 29, 2105 submission the applicant provided additional
explanation of the stormwater system and how proposed swales will be used to allow
natural infiltration of stormwater back into the water table. The CMP shows these
systems.
The Hearings Officer finds that directing stormwater to natural and constructed swales
for the purpose of treating and disposing of stormwater is sufficient to show a beneficial
use for the purposes of this criterion.
13. A description of proposed sewage disposal methods;
247 -15 -000464 -CU - Caldera Springs 39
FINDING: The applicant's Exhibit I, Sewage Collection and Water Systems Master
Plan, describes the proposed sewer extension to serve the annexation property. The
findings regarding the sewer system discussed above are included here by reference.
14. Wildfire prevention, control and evacuation plans;
FINDING: Exhibit M is the applicant's Wildfire Management Plan.
15. A description of interim development including temporary
structures related to sales and development;
FINDING: No temporary structures are proposed.
16. Plans for owners' associations and related transition of
responsibilities and transfer of property;
FINDING: The Caldera Springs Owners Association has been in existence since 2006.
The applicant states that the annexation property will be annexed fully into the
Covenants, Conditions and Restrictions for Caldera Springs. Exhibits E and E-1 are
copies of the current Declaration of Covenants, Conditions and Restrictions.
17. A description of the methods of ensuring that all facilities and
common areas within each phase will be established and will
be maintained in perpetuity;
FINDING: A plan to ensure the transfer and maintenance of common areas is set forth
in the CCRs submitted as Exhibit E and E-1, and the Open Space Management Plan
submitted as Exhibit F. The applicant states that with the recording of each plat, a
supplemental declaration will be recorded annexing the property contained in each plat
and designating certain areas as residential lots, living units, common areas and other
land use designations as provided in the Declaration. In the Declaration and each
supplemental declaration, all streets will be designated "common area" as defined in the
Declaration. Additional designated "common areas" may include open space lots and
trails. This criterion is met.
18. A survey of housing availability for employees based upon
income level and commuting distance;
FINDING: The anticipated employee needs and a survey of housing availability for
employees were submitted as a part of the Economic Impact and Feasibility Analysis
(Exhibit 0). The analysis indicates that both rental and for -sale housing will be available
for employees given the current housing inventory. The analysis goes on to state that
these rental and for -sale units represent a wide range of price points. The analysis
concludes that the local area currently contains small to large surpluses of rental and for -
sale units in line with the estimated budgets of these new households.
19. An economic impact and feasibility analysis of the proposed
development prepared by a qualified professional
economist(s) or financial analyst(s) shall be provided which
includes:
247 -15 -000464 -CU - Caldera Springs 40
a. An analysis which addresses the economic viability of
the proposed development;
b. Fiscal impacts of the project including changes in
employment, increased tax revenue, demands for new
or increased levels of public services, housing for
employees and the effects of loss of resource lands
during the life of the project.
FINDING: The applicant's Exhibit 0 is an economic impact and feasibility analysis
prepared by Peterson Economics. The analysis addresses the economic viability of the
development, along with anticipated fiscal impacts.
20. A solid waste management plan;
FINDING: Exhibit K includes a "will -serve" email from Wilderness Garbage and
Recycling.
21. A description of the mechanism to be used to ensure that the
destination resort provides an adequate supply of overnight
lodging units to maintain compliance with the 150 -unit
minimum and 2 and one-half to 1 ratio set forth in DCC
18.113.060(D)(2). The mechanism shall meet the requirements
of DCC 18.113.060(L);
FINDING: As is the case with Caldera Springs, all overnight lodging units associated
with the annexation property will be subject to the Caldera Cabins CCRs. The burden of
proof states that these CCRs impose the obligation to maintain the units as qualified
overnight lodging units. In addition, ongoing conditions of approval and county code
requirements regarding reporting will apply to the annexation property and, in particular,
the lots designated for overnight lodging.
22. If the proposed destination resort is in a SMIA combining
zone, DCC 18.56 shall be addressed;
FINDING: The subject property is not located within a SMIA Combining Zone.
23. If the proposed destination resort is in an LM combining
zone, DCC 18.84 shall be addressed;
FINDING: The burden of proof addresses DCC 18.84.
24. A survey of historic and cultural resources inventoried on an
acknowledged Goal 5 inventory;
FINDING: County Comprehensive Plan Chapter 23.40.060 includes the County's "Goal
5 Inventory" of Historic Resources that are protected by the County's Historic
Preservation Code. No site, building, or structure on this land is included in the list. The
State requires local jurisdictions to preserve and protect all structures and sites listed on
the National Register of Historic Places within their jurisdictions. There are no National
Register -listed structures on this land.
247 -15 -000464 -CU - Caldera Springs 41
25. Other information as may reasonably be required by the
Planning Director to address the effect of the proposed
development as related to the requirements of DCC Title 18.
FINDING: In response to requests by staff and the public, the applicant submitted
additional information as described throughout this decision.
4. Section 18.113.060. Standards for Destination Resorts.
The following standards shall govern consideration of destination resorts:
A. The destination resort shall, in the first phase, provide for and
include as part of the CMP the following minimum requirements:
1. At least 150 separate rentable units for visitor oriented
overnight lodging as follows:
a. The first 50 overnight lodging units must be
constructed prior to the closure of sales, rental or
lease of any residential dwellings or lots.
b. The resort may elect to phase in the remaining 100
overnight lodging units as follows:
i. At least 50 of the remaining 100 required
overnight lodging units shall be constructed or
guaranteed through surety bonding or
equivalent financial assurance within 5 years of
the closure of sale of individual lots or units,
and;
ii. The remaining 50 required overnight lodging
units shall be constructed or guaranteed
through surety bonding or equivalent financial
assurance within 10 years of the closure of sale
of individual Tots or units.
iii. If the developer of a resort guarantees a portion
of the overnight lodging units required under
subsection 18.113.060(A)(1)(b) through surety
bonding or other equivalent financial
assurance, the overnight lodging units must be
constructed within 4 years of the date of
execution of the surety bond or other
equivalent financial assurance.
iv. The 2:1 accommodation ratio4 required by DCC
18.113.060(D)(2) must be maintained at all
times.
c. If a resort does not chose to phase the overnight
lodging units as described in 18.113.060(A)(1)(b), then
the required 150 units of overnight lodging must be
constructed prior to the closure of sales, rental or
lease of any residential dwellings or lots.
a This reference to a 2:1 ratio is a clerical error. Pursuant to Ordinance 2013-008, the county amended
the ratio of residential units to OLUs from 2:1 to 2.5:1, consistent with legislative changes made to ORS
197.445(4)(b)(E) and OAR 660-015-000(8). The Planning Division's Work Plan includes correcting this
error to reference a 2.5:1 ratio as part of its housekeeping amendments.
247 -15 -000464 -CU - Caldera Springs 42
FINDING: As noted above, the applicant has elected to measure compliance with the
county's destination resort standards by considering the annexation property together
with the existing Caldera Springs Destination Resort. As of the submittal date of the
subject application, the applicant states it has constructed a total of 152 OLUs. The
applicant anticipates construction of all 160 overnight lodging units required by the
original Caldera Springs CMP within the next calendar year. As a part of the current
request, the applicant is modifying the 2:1 ratio approved in the original CMP to reflect
the current county standard of 2.5:1. As a consequence, with 160 overnight lodging
units either constructed or financially assured, and the ratio modified to 2.5:1, in addition
to the 320 single-family lots permitted in Caldera Springs, the applicant is entitled to 80
additional residential units prior to the need to develop any further OLUs. Upon
completion of the 80 additional residences, the applicant will be required to provide
additional OLUs. At this point in time, the applicant has not determined whether OLUs
will be constructed prior to the sale of additional residential lots, whether additional OLUs
will be bonded, or whether a combination of the two may be appropriate. The applicant
indicates the required ratio will be maintained at all times. As discussed above, a portion
of the OLUs necessary to support full build out of residential units on the annexation
property will likely occur on existing overnight lodging -designated lots in Caldera Springs
that are currently undeveloped.
COLW strongly disputes that the current method that Caldera Springs uses to make the
"rentable units" available is compliant with DCC 18.113.060. They argue that in reality
the existing stock of rentable units is really just 38 luxury homes. COLW acknowledges
that if each bedroom of those 38 homes is viewed as a "unit" then perhaps minimum
compliance could be had. They dispute that Caldera Springs actually rents these homes
by the unit. Indeed, COLW attaches the 2014 Caldera Springs rental record which
proves the point that at least in that year each of the "cabins" was rented in total, and
there was not even one instance in which a single bedroom was rented separately from
the rest of the home. COLW argues that at best these rooms should be categorized as
"dormitory rooms" which do not qualify as overnight rentable units under either ORS
197.435(5)(b) or DCC 18.113.060.
The applicant provided a refined description of how Caldera Springs views the same 38
"cabins." There is no dispute that the units are contained within what otherwise appears
to be a single family residence. The distinction is that each bedroom has a separate
entrance and a separate bathroom. The applicant states that each of the rooms is
separately rentable based on the reservation system. Again, the 2014 rental report
shows the homes broken down by bedroom — even if all bedrooms in each home that
year were always rented together by one guest. This circumstance is preferred by most
guests, the applicant argues.
For the purposes of this decision, the Hearings Officer concludes that the applicant's
system for making "rentable units" available for overnight accommodation complies with
DCC 18.113.060 and the definitions in 18.04.030. There is no evidence which would
cause the Hearings Officer to doubt the veracity of the applicant's statements (see also
the letter from Caldera Springs at Exhibit 5 of the applicant's December 22, 2015 letter)
or the information about the Caldera Springs website as presented by COLW. Caldera
Springs has interpreted the state definition of "[o]vernight lodging" in a way that turns a
large single family residence into a "cabin", and a five bedroom five bath house into five
"rentable units." With the addition of the separate entrance for each bedroom and at
least the colorable claim to allowing each room to be rented individually, Caldera Springs
247 -15 -000464 -CU - Caldera Springs 43
appears to have finessed DCC 18.113.060 in a way that minimally satisfies the 150
separate rentable unit standard.
Although COLW clearly condemns the method that Caldera Springs uses for renting out
the homes, there is no evidence that the Hearings Officer has been pointed to in the
record that shows that the 38 houses at issue are really simply used as full or part time
residences — which is the heart of the standards set in the destination resort statute.
And, while additional evidence (such as a deliberate system of actively discouraging the
separate rental of individual bedrooms, or a pricing scheme that accomplished the same
result) may have swayed the Hearings Officer to find noncompliance, that evidence does
not appear to be in the record. I did not visit the website to search for such evidence
since it is outside the record. There also is little help in the legislative findings for ORS
197.435 which might require a conclusion that Caldera Springs's current rental system is
forbidden. Consequently, the Hearings Officer finds that the application meets this
criterion.
For all the same reasons stated above, I also find that Caldera Springs's rental system
does not transform the rooms or homes into a "dormitory."
2. Visitor oriented eating establishments for at least 100
persons and meeting rooms which provide seating for at
least 100 persons.
FINDING: In connection with the initial development of Caldera Springs, the applicant
constructed the Lakehouse and Zeppa Bistro which, together, provide visitor eating
establishments and meeting rooms for at least 100 persons. In addition, the applicant
anticipates additional resort core recreation and visitor oriented facilities in connection
with later phases of development on the annexation property. This criterion is met.
3. The aggregate cost of developing the overnight lodging
facilities, developed recreational facilities, and the eating
establishments and meeting rooms shall be at least
$7,000,000 (in 1993 dollars).
FINDING: The record indicates that the aggregate amount of $7,000,000 equates to
$11,560,318.34 in 2015 dollars using a standard Consumer Price Index (CPI) calculator.
In connection with the development of Caldera Springs, the applicant spent $50,000,000
in connection with the cost of developing the overnight lodging facilities, developed
recreational facilities, and the eating establishments and meeting rooms. In connection
with later phases of development, the applicant will construct additional overnight
lodging facilities, developed recreational facilities and other resort amenities. The costs
associated with future development, in conjunction with the capital improvements
already made exceed the $11,560,318.34 required by this standard. This criterion is
met.
4. At least $ 2,333,333 of the $7,000,000 (in 1993 dollars) total
minimum investment required by DCC 18.113.060(A)(3) shall
be spent on developed recreational facilities.
FINDING: In 2015 dollars, the aggregate amount of $2,333,333 equates to
$3,853,438.90, using a standard CPI calculator. Staff found that to date, the applicant
247 -15 -000464 -CU - Caldera Springs 44
has spent over $11,000,000 in connection with the cost of developing recreational
facilities. As mentioned elsewhere, in connection with later phases of development, the
applicant will construct additional developed recreational facilities and other resort
amenities. Staff concluded that the costs associated with future development, in
conjunction with the capital improvements already made far exceed the $3,853,438.90
required by this standard.
COLW argues that the record is not specific and certain enough about the types of
recreational facilities to be built to satisfy this standard. COLW's argument does not
acknowledge investments already made for recreational facilities in Caldera Springs.
The applicant points to the BOCC decision in Eagle Crest III where prior expenditures
and construction of recreational facilities was deemed sufficient to satisfy this standard.
The applicant also states that of the approximately $50,000,000.00 already spent on
Caldera Springs, $11,000,000.00 has been spent on recreational facilities. This amount
is not disputed in the record.
The Hearings Officer agrees with the applicant's reading of Eagle Crest III. Prior
expenditures that meet the minimum threshold may be used to satisfy this criterion.
There is no contrary evidence in the record that would undermine the applicant's
assertion that $11,000,000.00 has already been spent on recreational facilities. Given
that those facilities are built, they are specific and certain enough to satisfy this standard.
This section may also be the best place to address the comments made at the hearings
and in written testimony about Harpers Bridge and the state of the boat ramp. Although
safe reliable access to the Deschutes River is definitely a public good, there is nothing in
the criteria governing destination resorts that would necessarily require this applicant to
provide improvements to the existing river access. The Hearings Officer cannot take
action on those comments because they are not relevant to any applicable approval
standards.
5. The facilities and accommodations required by DCC
18.113.060(A)(2) through (4) must be constructed or
financially assured pursuant to DCC 18.113.110 prior to
closure of sales, rental or lease of any residential dwellings
or Tots or as allowed by DCC 18.113.060(A)(1).
FINDING: Because the facilities meeting the threshold amounts described above have
been constructed, there is no need to financially assure any additional facilities. As
discussed above, at the point in time at which the applicant will be required to provide
additional OLUs, the applicant will elect whether to financially assure those units or
construct them prior to sale of single-family units.
B. All destination resorts shall have a minimum of 160 contiguous
acres of land. Acreage split by public roads or rivers or streams
shall count toward the acreage limit, provided that the CMP
demonstrates that the isolated acreage will be operated or managed
in a manner that will be integral to the remainder of the resort.
FINDING: Together, the original resort and the annexation property will encompass
approximately 1,009 contiguous acres of land. This standard is met.
247 -15 -000464 -CU - Caldera Springs 45
C. All destination resorts shall have direct access onto a state or
County arterial or collector roadway, as designated by the
Comprehensive Plan.
FINDING: The existing Resort has access onto South Century Drive, a designated
county arterial road. This criterion will be met.
D. A destination resort shall, cumulatively and for each phase, meet the
following minimum requirements:
1. The resort shall have a minimum of 50 percent of the total
acreage of the development dedicated to permanent open
space, excluding yards, streets and parking areas. Portions
of individual residential lots and landscape area requirements
for developed recreational facilities, visitor oriented
accommodations or multi family or commercial uses
established by DCC 18.124.070 shall not be considered open
space;
FINDING: The applicant's Exhibit A and A-1 indicate that the Resort, as a whole, will
encompass approximately 884 acres of land. Approximately 463 acres, or 52 percent, of
the Resort will be retained as permanent open space. The applicant's burden of proof
states that this calculation does not include the 125 -acre Wildlife Mitigation Tract. If this
Tract were included in the calculations, the Resort would encompass approximately
1,009 acres with 588 acres, or 58 percent, retained as permanent open space. This
criterion will be met.
2. Individually owned residential units that do not meet the
definition of overnight lodging in DCC 18.04.030 shall not
exceed two and one-half such units for each unit of visitor
oriented overnight lodging. Individually owned units shall be
considered visitor oriented lodging if they are available for
overnight rental use by the general public for at least 38
weeks per calendar year through one or more central
reservation and check in service(s) operated by the
destination resort or by a real estate property manager, as
defined in ORS 696.010.
a. The ratio applies to destination resorts which were
previously approved under a different standard.
FINDING: As explained above, the original resort was approved with a 2:1 ratio. Under
this application, the applicant proposes to modify the ratio to 2.5:1, in conformance with
this standard. Staff recommends a condition of approval requiring the Resort, at all
times, to comply with the 2.5:1 ratio. A condition of approval is warranted requiring all
OLUs to be available for overnight rental use by the general public for at least 38 weeks
per calendar year through one or more central reservation and check-in services,
operated by the destination resort or by a real estate property manager, as defined in
ORS 696.010.
E. Phasing. A destination resort authorized pursuant to DCC
18.113.060 may be developed in phases. If a proposed resort is to
247 -15 -000464 -CU - Caldera Springs 46
be developed in phases, each phase shall be as described in the
CMP. Each individual phase shall meet the following requirements:
1. Each phase, together with previously completed phases, if
any, shall be capable of operating in a manner consistent
with the intent and purpose of DCC 18.113 and Goal 8.
2. The first phase and each subsequent phase of the destination
resort shall cumulatively meet the minimum requirements of
DCC 18.113.060 and DCC 18.113.070.
3. Each phase may include two or more distinct noncontiguous
areas within the destination resort.
FINDING: The applicant proposes to develop the resort in phases. Exhibits A-2 and A-
3 generally depict the phasing of the project, although there is no specific timeline for the
development of any particular phase, as development will largely depend on market
demand. The applicant indicates that the first phase is likely to include only housing,
with subsequent phases to include overnight lodging, additional recreational amenities
and resort core features. The minimum required meeting rooms, food and beverage
service, overnight lodging, and recreational facilities have already been developed in
connection with the initial build out of Caldera Springs. Although anticipated to be
developed in phases, all subsequent phases will be fully integrated into the Caldera
Springs community, resulting in the entire resort operating as a cohesive whole. As
shown in the site plans, the resort will be connected via open space area, roads, and
pedestrian and bike pathways. Existing resort amenities will be available to the
annexation property. The record shows no intent to develop the property into more
distinct, non-contiguous areas. This criterion is met.
F. Destination resorts shall not exceed a density of one and one half
dwelling units per acre including residential dwelling units and
excluding visitor oriented overnight lodging.
FINDING: The applicant calculates total acreage of Caldera Springs and the annexation
property to be approximately 883 acres, not including the 125 -acre Wildlife Mitigation
Tract. At this size, the allowed density is 1,324 dwelling units. The total number of
residential dwelling units, excluding visitor oriented overnight lodging, proposed by the
applicant for both properties is 715 residential dwelling units, meeting this standard.
G. Dimensional Standards:
1. The minimum lot area, width, lot coverage, frontage and yard
requirements and building heights otherwise applying to
structures in underlying zones and the provisions of DCC
18.116 relating to solar access shall not apply within a
destination resort. These standards shall be determined by
the Planning Director or Hearings Body at the time of the
CMP. In determining these standards, the Planning Director
or Hearings Body shall find that the minimum specified in the
CMP are adequate to satisfy the intent of the comprehensive
plan relating to solar access, fire protection, vehicle access,
visual management within landscape management corridors
and to protect resources identified by LCDC Goal 5 which are
identified in the Comprehensive Plan. At a minimum, a 100 -
foot setback shall be maintained from all streams and rivers.
Rimrock setbacks shall be as provided in DCC Title 18. No lot
247 -15 -000464 -CU - Caldera Springs 47
for a single family residence shall exceed an overall project
average of 22,000 square feet in size.
FINDING: No natural streams, rivers, or rimrock exist on-site. This criterion allows the
Planning Director or Hearings Body to establish standards for the minimum lot area,
width, lot coverage, frontage, yard requirements, building heights, and solar access at
the time of the Conceptual Master Plan (CMP). The applicant proposes the same
Dimensional Standards that were approved with the existing Resort. Those standards
are as follows:
SINGLE FAMILY RESIDENTIAL
A. Height Regulations. No building or structure should be hereinafter erected,
enlarged, or structurally altered to exceed 30 feet in height, except as allowed
under DCC 18.120.040.
B. Lot Requirements.
1. Lot Area. Every lot shall have a minimum area of 6,000 square feet.
2. Every lot should have a minimum average width at the building site of 60
feet, except that a corner lot shall be a minimum of 70 feet.
3. Every lot shall have a minimum width at the street of 50 feet.
4. The front yard shall be a minimum of 20 feet.
5. The side yard shall be a minimum of ten feet.
6. The rear yard setback for properties which do not have a common area
adjoining the rear property line, shall be a minimum of 25 feet. The rear
yard setback is zero for properties with a rear property line which adjoins
a common area that is 50 feet or greater in depth. The rear yard setback
for properties which adjoin common areas less than 50 feet in depth shall
be calculated at six inches for every one foot less than 50 feet.
7. Lot Coverage. The maximum lot coverage by buildings and structures,
including decks and patios, shall be 40 percent of the lot area.
MULTI -FAMILY RESIDENTIAL
A. Height Regulations. No building or structure shall be hereinafter erected,
enlarged, or structurally altered to exceed 35 feet in height, except as allowed
under DCC 18.120.040.
B. Lot Requirements. The following lot requirements shall be observed.
1. Lot Area. No lot area requirements apply, other than the overall density
shall not exceed 12 dwelling units per acre.
2. Lot Width. Every lot shall have a minimum average width at the building
site of 50 feet.
3. Frontage. Every lot shall have a minimum width at the street of 30 feet.
4. Front Yard. The front yard shall be a minimum of ten feet.
5. Side Yard. The side yard shall be a minimum of five feet.
6. Rear Yard. The rear yard shall have a depth of not less than five feet.
The rear yard shall be increased by one-half foot for each foot by which
the building height exceeds 15 feet.
7. Lot Coverage. The maximum lot coverage by buildings and structures,
including decks and patios, shall be 45 percent of the total lot area.
8. All lot dimensional requirements may be waived for an approved zero lot
line project.
247 -15 -000464 -CU - Caldera Springs 48
9. Setbacks for townhouses, condominiums, zero lot line dwellings, and
apartments shall be determined at the time of site plan approval.
COMMERCIAL AND RECREATIONAL
A. Height Regulations. No building or structure shall be hereinafter erected,
enlarged or structurally altered to exceed 45 feet in height. Chimneys, spires,
belfries, domes, monuments, clock towers, look -out towers, smokestacks, flag
poles, radio antenna, and similar projections are not subject to building height
limitations.
B. Lot Area. No requirements.
C. Lot Width. No requirements.
D. Lot Depth. 100 feet
E. Front Yard. The front yard shall be a minimum of ten feet.
F. Side Yard. None, unless a side lot line adjoins a residential lot, and then the side
yard setback shall be a minimum of ten feet. The side yard setback from
residential lots shall be increased by one-half foot for each foot by which the
building height exceeds 20 feet.
G. Rear Yard. None, except for a rear lot line adjoining a residential lot, and then
the rear yard setback shall be a minimum of ten feet. The required rear yard
setback from residential lots shall be increased by one-half foot for each foot by
which the building height exceeds 20 feet.
H. Lot Coverage. No requirements.
PROPOSED OVERNIGHT LODGING COTTAGE LOTS:
A. Height Regulations. No building or structure shall be hereinafter erected,
enlarged or structurally altered to exceed 30 feet in height. Chimneys, spires,
belfries, domes, monuments, clock towers, look -out towers, smokestacks, flag
poles, radio antenna, and similar projections are not subject to building height
limitations.
B. Lot Area. No requirements.
C. Lot Width. No requirements.
D. Lot Depth. No requirements.
E. Frontage: No minimum road frontage requirements. Each lot shall have access
to required parking areas and driveways, and to a private resort road, via a
perpetual easement recorded for the benefit of the subject lot.
F. Front Yard. No requirements.
G. Side Yard. None, except for a side lot line adjoining a single-family residential
lot, and then the side yard shall be a minimum of ten feet. The required side yard
shall be increased by one-half foot for each foot by which the building height
exceeds 20 feet.
H. Rear Yard. None, except for a rear lot line adjoining a single-family residential
lot, and then the rear yard shall be a minimum of ten feet. The required rear yard
shall be increased by one-half foot for each foot by which the building height
exceeds 20 feet.
I. Lot Coverage. No requirements.
J. Location of parking/driveways. Parking areas and driveways associated with
overnight lodging cottages may be clustered and located on adjacent lots and/or
common areas, and may span lot lines.
247 -15 -000464 -CU - Caldera Springs 49
SOLAR ACCESS
A. All structures within the destination resort shall be exempt from building setbacks
for the protection of solar access, exempt from solar height restrictions, and
exempt from solar access permits.
The standards associated with the LM Combining Zone are addressed above. Similar to
the finding made by the Hearings Officer in the Caldera Springs approval, staff believes
the setbacks identified above are sufficient to satisfy the intent of the comprehensive
plan for LM corridors except for limitations on building height. As detailed above, staff
recommends a condition of approval limiting building height to a maximum of 30 feet as
measured from natural grade for all structures subject to the visible LM standards.
The approved Caldera Springs CMP is exempt from the County's solar access
standards. The annexation property similarly requests an exemption from the County's
solar standards. The applicant argues that historically, solar access and solar property
right conditions have not been applied to destination resorts. The applicant points to
Tetherow, which was exempted from requirements of meeting solar setback
requirements, and to Pronghorn, where use of solar access similarly has been minimal.
As is the case with Caldera Springs and the annexation property, the applicant states
the design guidelines both encourage and require homes to be designed to emphasize
preservation of natural features and vegetation, recreation enjoyment, view corridors and
overall home design.
The applicant further argues that the state and county destination resort development
standards make compliance with solar conditions difficult or impossible. The applicant
points to the Deschutes County Destination Resort Ordinance which requires fifty
percent open space for the entire land tract, significant buffer areas, a mitigation tract
and a wildlife mitigation corridor. The applicant states that these "no -build" areas,
together with the predominant north -south orientation of the underlying property limit the
ability to fully incorporate solar standards. However, the applicant concludes that the
open spaces, buffers and wildlife mitigation corridors will provide solar protection for
homes on the perimeter of the proposed development and will provide solar access for
many of the resort lots.
As is the case with the original development of Caldera Springs, most proposed
development areas are oriented in a north to south configuration due to orientation of the
property and natural topography. This north to south configuration results in primary
solar access to the side of the proposed homes, minimizing opportunities to protect solar
access. Given the overall protection of views, open space and natural corridors
exceeding 50 percent of the site and the county's historical practices related to solar in
other resort approvals, the applicant believes that independent solar standards should
not apply to the individual lots.
2. Exterior setbacks.
a. Except as otherwise specified herein, all development
(including structures, site obscuring fences of over
three feet in height and changes to the natural
topography of the land) shall be setback from exterior
property lines as follows:
247 -15 -000464 -CU - Caldera Springs 50
FINDING:
recommends
Hearings Offi
H.
i. Three hundred fifty feet for commercial develop-
ment including all associated parking areas;
ii. Two hundred fifty feet for multi family
development and visitor oriented
accommodations (except for single family
residences) including all associated parking
areas;
iii. One hundred fifty feet for above grade
development other than that listed in DCC
18.113.060(G)(2)(a)(i) and (ii);
iv. One hundred feet for roads;
v. Fifty feet for golf courses; and
vi. Fifty feet for jogging trails and bike paths where
they abut private developed lots and no setback
for where they abut public roads and public
lands.
b. Notwithstanding DCC 18.113.060(G)(2)(a)(iii), above
grade development other than that listed in DCC
18.113.060(G)(2)(a)(i) and (ii) shall be set back 250 feet
in circumstances where state highways coincide with
exterior property lines.
c. The setbacks of DCC 18.113.060 shall not apply to
entry roadways and signs.
The record demonstrates that these setbacks can be met. Staff
that any berms proposed on-site should also be subject to criterion iii. The
cer agrees.
Floodplain requirements. The floodplain zone (FP) requirements of
DCC 18.96 shall apply to all developed portions of a destination
resort in an FP Zone in addition to any applicable criteria of DCC
18.113. Except for floodplain areas which have been granted an
exception to LCDC goals 3 and 4, floodplain zones shall not be
considered part of a destination resort when determining
compliance with the following standards;
1. One hundred sixty acre minimum site;
2. Density of development;
3. Open space requirements.
A conservation easement as described in DCC Title 18 shall be
conveyed to the County for all areas within a floodplain which are
part of a destination resort.
FINDING: No lands zoned Flood Plain exist on-site. These criteria do not apply.
I. The Landscape Management Combining Zone (LM) requirements of
DCC 18.84 shall apply to destination resorts where applicable.
FINDING: The applicable LM criteria are addressed above.
J. Excavation, grading and fill and removal within the bed and banks of
a stream or river or in a wetland shall be a separate conditional use
subject to all pertinent requirements of DCC Title 18.
247 -15 -000464 -CU - Caldera Springs 51
FINDING: No natural streams, rivers or wetlands exist on-site. A separate conditional
use permit is not required.
K. Time share units not included in the overnight lodging calculations
shall be subject to approval under the conditional use criteria set
forth in DCC 18.128. Time share units identified as part of the
destination resort's overnight lodging units shall not be subject to
the time share conditional use criteria of DCC 18.128.
FINDING: No time share units are proposed as part of the annexation property. This
criterion does not apply.
L. The overnight lodging criteria shall be met, including the 150 -unit
minimum and the 2-1/2 to 1 ratio set forth in DCC 18.113.060(D)(2).
1. Failure of the approved destination resort to comply with the
requirements in DCC 18.113.060(L)(2) through (6) will result in
the County declining to accept or process any further land
use actions associated with any part of the resort and the
County shall not issue any permits associated with any lots
or site plans on any part of the resort until proof is provided
to the County of compliance with those conditions.
FINDING: As noted previously, the existing Resort includes 152 constructed OLUs.
The applicant proposes to modify the destination resort approval such that the 2.5:1 ratio
applies across the existing and proposed development. A condition of approval to
ensure compliance is warranted.
2. Each resort shall compile, and maintain, in perpetuity, a
registry of all overnight lodging units.
a. The list shall identify each individually -owned unit that
is counted as overnight lodging.
b. At all times, at least one entity shall be responsible for
maintaining the registry and fulfilling the reporting
requirements of DCC 18.113.060(L)(2) through (6).
c. Initially, the resort management shall be responsible
for compiling and maintaining the registry.
d. As a resort develops, the developer shall transfer
responsibility for maintaining the registry to the
homeowner association(s). The terms and timing of
this transfer shall be specified in the Conditions,
Covenants & Restrictions (CC&Rs).
e. Resort management shall notify the County prior to
assigning the registry to a homeowner association.
f. Each resort shall maintain records documenting its
rental program related to overnight lodging units at a
convenient location in Deschutes County, with those
records accessible to the County upon 72 hour notice
from the County.
g. As used in this section, "resort management"
includes, but is not limited to, the applicant and the
applicant's heirs, successors in interest, assignees
other than a home owners association.
247 -15 -000464 -CU - Caldera Springs 52
FINDING: Staff notes that the existing Resort was modified under MC -13-5 to add the
registry requirements, which did not exist under the previous destination resort criteria.
A condition of approval to ensure compliance with the registry requirements is
warranted.
3. An annual report shall be submitted to the Planning Division
by the resort management or home owners association(s)
each February 1, documenting all of the following as of
December 31 of the previous year:
a. The minimum of 150 permanent units of overnight
lodging have been constructed or that the resort is not
yet required to have constructed the 150 units;
b. The number of individually -owned residential platted
lots and the number of overnight -lodging units;
c. The ratio between the individually -owned residential
platted lots and the overnight lodging units;
d. The following information on each individually -owned
residential unit counted as overnight lodging.
i. Who the owner or owners have been over the
last year;
ii. How many nights out of the year the unit was
available for rent;
iii. How many nights out of the year the unit was
rented out as an overnight lodging facility
under DCC 18.113;
iv. Documentation showing that these units were
available for rental as required.
e. This information shall be public record subject to ORS
192.502(17).
FINDING: A condition of approval to ensure compliance is warranted.
4. To facilitate rental to the general public of the overnight
lodging units, each resort shall set up and maintain in
perpetuity a telephone reservation system.
FINDING: A condition of approval to ensure compliance is warranted.
5. Any outside property managers renting required overnight
lodging units shall be required to cooperate with the
provisions of this code and to annually provide rental
information on any required overnight lodging units they
represent to the central office as described in DCC
18.113.060(L)(2) and (3).
FINDING: A condition of approval to ensure compliance is warranted.
6. Before approval of each final plat, all the following shall be
provided:
a. Documentation demonstrating compliance with the 2-
1/2 to 1 ratio as defined in DCC 18.113.060(D)(2);
247 -15 -000464 -CU - Caldera Springs 53
b. Documentation on all individually -owned residential
units counted as overnight lodging, including all of the
following:
i. Designation on the plat of any individually -
owned units that are going to be counted as
overnight lodging;
ii. Deed restrictions requiring the individually -
owned residential units designated as overnight
lodging units to be available for rental at least
38 weeks each year through a central
reservation and check-in service operated by
the resort or by a real estate property manager,
as defined in ORS 696.010;
iii. An irrevocable provision in the resort
Conditions, Covenants and Restrictions
("CC&Rs) requiring the individually -owned
residential units designated as overnight
lodging units to be available for rental at least
38 weeks each year through a central
reservation and check-in service operated by
the resort or by a real estate property manager,
as defined in ORS 696.010;
iv. A provision in the resort CC&R's that all
property owners within the resort recognize
that failure to meet the conditions in DCC
18.113.060(L)(6)(b)(iii) is a violation of
Deschutes County Code and subject to code
enforcement proceedings by the County;
v. Inclusion of language in any rental contract
between the owner of an individually -owned
residential unit designated as an overnight
lodging unit and any central reservation and
check in service or real estate property
manager requiring that such unit be available
for rental at least 38 weeks each year through a
central reservation and check-in service
operated by the resort or by a real estate
property manager, as defined in ORS 696.010,
and that failure to meet the conditions in DCC
18.113.060(L)(6)(b)(v) is a violation of Deschutes
County Code and subject to code enforcement
proceedings by the County.
FINDING: Staff notes that the existing Resort was modified under MC -13-5 to remove
the previous standard which required 45 -week rental availability, and replace it with
today's standard of 38 weeks. A condition of approval to ensure compliance is
warranted.
4. Section 18.113.070. Approval Criteria.
In order to approve a destination resort, the Planning Director or Hearings
Body shall find from substantial evidence in the record that:
247 -15 -000464 -CU - Caldera Springs 54
A. The subject proposal is a destination resort as defined in DCC
18.040.030.
FINDING: The existing Caldera Springs resort and proposed annexation includes and
will include all of the components identified for a destination resort under DCC
18.04.030. This criterion will be met.
B. All standards established by DCC 18.113.060 are or will be met.
FINDING: As the findings above show, all standards established by DCC 18.113.060
will be met or can be met with the recommended conditions of approval.
C. The economic analysis demonstrates that:
1. The necessary financial resources are available for the
applicant to undertake the development consistent with the
minimum investment requirements established by DCC
18.113.
FINDING: The Economic Feasibility Analysis, prepared by Peterson Economics and
submitted as Exhibit 0, demonstrates that the applicant has the necessary financial
resources to meet the minimum development and investment standards of DCC 18.113.
2. Appropriate assurance has been submitted by lending
institutions or other financial entities that the developer has
or can reasonably obtain adequate financial support for the
proposal once approved.
FINDING: A Letter of Financial Commitment and Developer Resume, submitted as
Exhibit P, demonstrate that the applicant has or reasonably can obtain adequate
financial support for the project. Staff agrees and believes this criterion will be met.
3. The destination resort will provide a substantial financial
contribution which positively benefits the local economy
throughout the life of the entire project, considering changes
in employment, demands for new or increased levels of
public service, housing for employees and the effects of loss
of resource land.
FINDING: The feasibility analysis discusses the financial contributions that the resort
will make to the local economy, including the contributions to the construction industry,
employee base, payroll and benefits package, property tax, and transient room tax
revenues for Deschutes County.
4. The natural amenities of the site considered together with the
identified developed recreation facilities to be provided with
the resort, will constitute a primary attraction to visitors,
based on the economic feasibility analysis.
FINDING: There are no outstanding natural amenities on the site that are likely to
constitute a primary attraction to visitors. The feasibility analysis indicates that visitors
will be attracted to the resort based upon the high-quality recreational facilities, scenic
vistas, proximity to the Bend urban area, Mt. Bachelor, and the Deschutes River.
247 -15 -000464 -CU - Caldera Springs 55
D. Any negative impact on fish and wildlife resources will be
completely mitigated so that there is no net loss or net degradation
of the resource.
FINDING: Staff provided the following analysis of the applicant's CMP with respect to
this criterion:
The applicant's burden of proof Exhibit C is a Wildlife Habitat Evaluation
Procedure and Mitigation Plan ("Wildlife Report") for the Caldera Springs
Annexation Development. The Wildlife Report was prepared by Dr. Wendy
Wente of Mason, Bruce and Girard, in consultation with ODFW. The applicant
states that ODFW's recommendations were incorporated into the Wildlife Report.
The Wildlife Report addresses two primary goals. First, it describes and
evaluates the habitat and wildlife resources on the property and immediate
vicinity. Second, through an extensive Habitat Evaluation Procedure ("HEP
Analysis") it characterized the floral and faunal constituents of each habitat type,
as well as topography, aspect, and other habitat elements. The HEP Analysis
described the salient characteristics of each habitat type, such as vegetative
components, structure, age class distribution, landscape position, topography,
elevation, hydrologic regime, and management history of the property. The HEP
Analysis results include the pre -development wildlife habitat conditions,
anticipated post -development conditions, and proposed enhancements and
mitigation measures intended to offset anticipated reductions of habitat quality
due to the project. The HEP Analysis concludes that the applicant can mitigate
all negative impacts on fish and wildlife resources. Proposed mitigation includes
the following:
• Preservation of a 125 -acre Wildlife Mitigation Tract located between the
annexation property and the railroad
• Monitoring and eradication of weeds and non-native plants where
possible
• Preservation of live and dead ponderosa pine trees where possible
• Retention of downed logs and snags where possible
• Prohibiting fire wood cutting or vegetation alteration beyond that
prescribed as management for increased habitat value
• Retention of rock outcrops where possible
• Installation and maintenance of nest boxes
• Prohibiting new fences within the development
• Posting and enforcement of leash laws
• Prohibiting livestock on the property
• Prohibiting recreational off-road motor vehicle use in the open space
areas
• Requiring a 100 -foot setback for all lots adjacent to open space
• Initiating a program for proper garbage storage and disposal
• Initiating an educational program for residents focused on native wildlife
populations using the subject property
Staff also recommended that the applicant respond to the guidance on how to assure
the mitigation measures are successful identified in the recent Hearings Officer's
247 -15 -000464 -CU - Caldera Springs 56
decision on The Tree Farm.5 In the Board of County Commissioners ("Board") approval6
of The Tree Farm, the Board affirmed the Hearings Officer's identification of required
wildlife management plan components as follows:
A. The wildlife plan must include an action plan that identifies specific roles and
responsibilities for the developer and homeowners association ("HOA"), and
describes how and when the developer will hand off responsibility to the HOA.
B. What specific measures will be undertaken consistent with the wildfire plan to
assure more aggressive fuel reduction measures, if any, will not interfere with
wildlife use of the 125 -acre Wildlife Mitigation Tract, and the east -west travel
corridor along Vandevert Road?
The Hearings Officer agrees with Staffs analysis above and that the additional
refinements identified in The Tree Farm should be addressed. That analysis appears
below.
On November 10, 2015 the applicant submitted a Wildlife Habitat Evaluation Procedure
and Mitigation Plan ("HEP") that refines the initial CMP. In addition to the evaluation, the
HEP contains an "Integration of Habitat Management with Wildlfire Protection" plan,
"Wildlife Habitat Conservation and Mitigation Measures," including an action plan, and
explanation of the mitigation site set aside, and an enforcement section.
In their December 15, 2015 submission, COLW does not comment on the HEP or make
any arguments about its adequacy. Instead, COLW argues that the Court of Appeals
decision in Gould v. Deschutes County requires that the only way to meet DCC
18.113.070(D) is through a 1:1 mitigation tract. COLW also provides some information
and argument about the state of the deer migration range in the area and the health of
mule deer populations in the vicinity of the subject property.
In their December 29, 2015 letter, the applicant counters that neither DCC 18.113.070
nor Gould mandates a 1:1 mitigation tract. The applicant's November 10, 2015
submission states that the court in Gould allowed a HEP approach to complying with
DCC 18.113.070(D). The applicant also argues generally that the design of the
expansion area will leave much of the developed part of the resort open for some level
of habitat use by mule deer even though those areas will be partially impacted.
The Hearings Officer concludes that the HEP and the mitigation plan are sufficient to
satisfy DCC 18.113.070(D). First, the record is clear that Oregon Department of Fish
and Wildlife reviewed and approved the HEP, and that the applicant incorporated all of
ODFW's recommendations. That evidence is not disputed by any party and constitutes
substantial evidence that ODFW concluded that the HEP could completely mitigate
negative impacts on fish and wildlife resources including habitat impacts. Second,
COLW's arguments do in any way address the HEP or offer reasons why it is deficient or
in error. Without such argument it is very difficult for the Hearings Officer to understand
why ODFW's conclusions should not be deferred to. Third, the Hearings Officer agrees
that Gould does not mandate a 1:1 mitigation tract, and certainly does not stand for the
5 The Tree Farm, land use file numbers 247 -15 -000242 -CU, 243 -TP, 244 -CU, 245 -TP, 246 -CU, 247 -TP,
248 -CU, 249 -TP, 250 -CU, 251 -TP
6 Board Document Nos. 2015-638, 639, 640, 641 and 642.
247 -15 -000464 -CU - Caldera Springs 57
proposition that an acre for acre replacement of habitat is the only way to meet the "no
net loss" standard. Seeing no credible claims of insufficiency in the applicant's HEP and
mitigation plan, the Hearings Officer finds that it satisfies this criterion.
As for the questions Staff recommended from The Tree Farm decision, the Integration of
Habitat Management with Wildlfire Protection plan identified above contains multiple
specific actions and treatments of vegetation and fuels in the developed area. Those
actions and treatments also harmonize the wildfire plan, which is discussed below, with
the actions necessary to implement the HEP mitigation plan. The plan is detailed and
specific enough to adequately answer Question B above.
As for Question A, the November 10, 2015 HEP analysis contains a specific "Action Plan
for Managing Wildlife Habitat" that contains 18 separate actions that must be taken to
preserve habitat functions in the development. Separately, there are rules imposed on
the treatment of the 125 acre mitigation tract to ensure its protection. The HEP includes
an "Implementation, Monitoring, and Enforcement of the Wildlife Conservation
Measures" section that states that the conservation measures: 1) will be enforced
through the CC&Rs, 2) will be reviewed through an audit every 3-5 years, and 3) that the
developer and/or the Caldera Springs Owners Association will be responsible for
meeting the County Code and conditions of any approval.
The Hearings Officer concludes that the mitigation measures identified in the HEP are
specific enough to be implemented in a way that the County and the public can evaluate,
and will enforceable through the CC&Rs and County code enforcement in a rigorous
enough way to provide certainty that they will be implemented and maintained over time.
This criterion is met.
E. Important natural features, including but not limited to significant
wetlands, riparian habitat, and landscape management corridors will
be maintained. Riparian vegetation within 100 feet of streams, rivers
and significant wetlands will be maintained. Alterations to important
natural features, including placement of structures, is allowed so
long as the overall values of the feature are maintained.
FINDING: Neither natural springs nor surface waters exist. However, the applicant
indicates that an elevated groundwater table may be visible during extremely wet
weather conditions during spring months. The burden of proof states that no major
geographic features exist on the subject property. No significant rocky outcrops, no
particular vista points, and no steep visible hillsides exist. No significant wetlands were
identified in the record. This criterion is met.
F. The development will not force a significant change in accepted
farm or forest practices or significantly increase the cost of
accepted farm or forest practices on surrounding lands devoted to
farm or forest use.
FINDING: Property to the north, west and south are developed, or partially developed,
with residential and commercial uses. No forestry or agricultural uses are present on
these properties. Consequently, staff found the proposal will not force a significant
247 -15 -000464 -CU - Caldera Springs 58
change in accepted farm or forest practices or force a significant increase the cost of
accepted farm or forest practices on these properties.
The applicant indicates the only property in the "surrounding lands" devoted to forest use
is the USFS property east of the Burlington Northern Railroad main line and east of the
125 -acre Wildlife Mitigation Tract. At the present time, the USFS property is not being
used for timber production. The applicant argues that given the separation of the USFS
property and the annexation property by the railroad and the Wildlife Mitigation Tract,
there is no evidence to suggest that the development with have any impact on how the
USFS manages the property, let alone force a significant change in or costs of forest
practices. Staff notes that no comments were received from the USFS regarding
concerns about impacts to forest practices on USFS lands. This criterion is met.
G. Destination resort developments that significantly affect a
transportation facility shall assure that the development is
consistent with the identified function, capacity and level of service
of the facility. This shall be accomplished by either:
1. Limiting the development to be consistent with the planned
function, capacity and level of service of the transportation
facility;
2. Providing transportation facilities adequate to support the
proposed development consistent with Oregon
Administrative Rules chapter 660, Division 12; or
3. Altering land use densities, design requirements or using
other methods to reduce demand for automobile travel and to
meet travel needs through other modes.
A destination resort significantly affects a transportation
facility if it would result in levels of travel or access that are
inconsistent with the functional classification of a facility or
would reduce the level of service of the facility below the
minimum acceptable level identified in the relevant
transportation system plan.
a. Where the option of providing transportation facilities
is chosen, the applicant shall be required to improve
impacted roads to the full standards of the affected
authority as a condition of approval. Timing of such
improvements shall be based upon the timing of the
impacts created by the development as determined by
the traffic study or the recommendations of the
affected road authority.
b. Access within the project shall be adequate to serve
the project in a safe and efficient manner for each
phase of the project.
FINDING: The applicant submitted a transportation impact analysis ("TIA") prepared by
Kittelson and Associates, and attached as Exhibit D. Although not required by the above
standard, the applicant states the TIA was prepared to meet the above requirements,
and the requirements of the Transportation Planning Rule and the requirements of
ORS 197.460(4). Prior to development and study under the TIA, the applicant consulted
with ODOT and Deschutes County, resulting in an agreed-upon scoping memorandum
and analysis. The TIA concludes that all study intersections will continue to operate
247 -15 -000464 -CU - Caldera Springs 59
within applicable performance standards through the 2030 horizon year with the addition
of all trips associated with the resort proposal. Furthermore, the TIA concludes that no
off-site mitigation measures are required to accommodate the construction of the resort
as proposed and that it may be developed consistent with the identified function,
capacity and level of service all affected facilities.
During the notice of application comment period, ODOT identified a discrepancy
between the proposal and the TIA. The annexation includes new access onto Vandevert
Road. The TIA indicated that this access was for emergency use only. After the
applicant was notified of this issue, Kittleson and Associates amended the TIA to
analyze the proposed new access onto Vandevert Road. Kittleson and Associates
concluded that the impact of the amendment was minor with no change in findings and
no adverse impact to Level of Service (LOS) for affected road facilities. The Deschutes
County Senior Transportation Planner agreed with Kittleson's conclusions that the
proposed annexation will not result in a significant negative impact to a transportation
facility.
The applicant submitted a final TIA to respond to public and agency comments related to
transportation impacts. The final TIA includes an updated seasonal factor for traffic
volumes. With respect to concerns regarding crashes, the final TIA concludes that the
Vandevert/Highway 97 intersection can present difficult decision making for drivers. For
this reason, traffic should be routed to the Century Drive interchange for northbound trips
from the annexation property to limit left -turns at the Vandevert/Highway 97 intersection.
The final TIA concludes that in the horizon years of 2030 and 2035, the
Vandevert/Highway 97 intersection will exceed ODOT's mobility standard. As a result,
the final TIA proposes three mitigation options:
1) Restricting the Vandevert Road access to construction traffic only;
2) Restricting left -out movements from the Vandevert Road access; or
3) Installation of a raised median along Highway 97 to enforce right -in and right -out
access.
ODOT states that it is satisfied that the project will not adversely affect the operation of
the US 97 intersection at Vandevert with the proposed mitigation. The proposed
mitigation is to limit the Vandevert access to construction traffic only or to restrict
outbound left -turn movements until such time as the Vandevert connection to US 97 is
closed or restricted. Restricting outbound left -turns would be less effective and ODOT
would request the opportunity to review the turn -restriction design prior to it being
permitted. The county's Senior Transportation Planner, Peter Russell, states that he
knows of no design that will successfully and consistently restrict a left -out movement
from Vandevert Road. For this reason, the county recommends the Vandevert access
be open to construction traffic only and then become a gated, emergency -only access
until Vandevert is disconnected from Highway 97 or the Spring River/Century Drive
roundabout is constructed.
Regarding a raised median along Highway 97, ODOT states that it is open to
discussions to close or restrict access to the US 97/Vandevert intersection, but the
timing of that improvement is uncertain. As this facility is solely under the jurisdiction of
ODOT, the county provides no comments on this potential mitigation.
247 -15 -000464 -CU - Caldera Springs 60
The final TIA also concludes that the Spring River/Century Drive intersection will exceed
the county's Level of Service ("LOS") D standard in horizon years 2030 and 2035. The
county's Transportation System Plan ("TSP") identifies the construction of a single -lane
roundabout at this intersection at an expected cost of approximately $900,000. Mr.
Russell notes that System Development Charges ("SDC") likely to be assessed to the
developer will be approximately $1.69 million to $1.84 million. Per staff's conversation
with the Road Department, given the identification of the required improvement and the
collection of SDCs, the county believes there is a reasonable expectation that the
roundabout will be constructed at the time it is needed. This additional evidence in
combination with Staff's analysis is sufficient to show compliance with these criteria.
The additional information provided by the applicant refining the TIA is also discussed in
the findings for DCC 18.113.050(B)(2) above. Those findings are incorporated here by
this reference. These criteria are met.
H. The development will not create the potential for natural hazards
identified in the County Comprehensive Plan. No structure will be
located on slopes exceeding 25 percent. A wildfire management
plan will be implemented to ensure that wildfire hazards are
minimized to the greatest extent practical and allow for safe
evacuation. With the exception of the slope restriction of DCC
18.113.070, which shall apply to destination resorts in forest zones,
wildfire management of destination resorts in forest zones shall be
subject to the requirements of DCC 18.40.070, where applicable, as
to each individual structure and dwelling.
FINDING: The Hearings Officer addresses this criterion below. Prior to that discussion,
a short response to COLW's arguments regarding wildfire is appropriate here. COLW's
December 15, 2015 submission contains a section stating that the wildland fire resort
criteria have not been met. However, review of that section leaves the Hearings Officer
with the conclusion that no violation of law or failure to address an applicable criterion
has been cited by COLW. While the section does a fine job of identifying the existing
wildfire threats, and the sometimes grave conditions that promote wildfire in the vicinity,
there is no connection between those recitations and the applicable criterion above.
Importantly, COLW does not challenge the specific provisions of the WMP, nor does
COLW address the applicant's supplemental testimony and evidence in the November
10, 2015 submission. As such, the Hearings Officer concludes that the findings below
both sufficiently address the applicable criterion and rebut COLW's allegation that the
WMP is insufficient.
The applicant's Exhibit M is the Wildfire Management Plan ("WMP"), prepared by Jeff
Pendleton, a retired USFS Wildland Fire Consultant. The WMP was prepared in
consultation with Deschutes County Forester, Ed Keith, and Alison Green of Project
Wildfire. The applicant states that all recommendations of the County Forester and Ms.
Green were incorporated into the report. Pursuant to the WMP, the applicant concludes
that all wildfire hazards have been minimized to the greatest extent practicable, and the
three evacuation routes, with exits on the north, west and south sides of the project,
allow for safe evacuation of the property in the event of wildfire. The proposal does not
include development on slopes exceeding 25%.
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The WMP includes a number of key components. First, it imposes obligations for
wildfire management on the homeowners and the homeowners' association.
Consequently, to the extent that an individual homeowner is not in compliance with a
specified requirement, the association has the right to enforce the obligation. Second,
the plan provides for ongoing treatment of the entire property in 5 -year cycles to assure
that every portion of the property is treated every five years. Third, the treatment
requirements (e.g., thinning, spacing, ladder fuel reduction) are specified in the plan and
proposed to be included as conditions of approval. Finally, all terms and conditions of
the WMP are binding through the imposition of design standards for individual lots, and
open space and Wildlife Mitigation Area standards through the CC&Rs. The proposed
conditions of approval in the WMP include the following:
• Maintain the entire resort within the La Pine Rural Fire Protection District or any
successor in interest to the fire protection district.
• Development of the annexation property shall be designed to maintain 1,000
gpm fire protection flow in addition to meeting the domestic needs of the resort.
Fire hydrants shall be placed along all rights of ways within the resort at spacing
approved by the LRFD Fire Chief.
• Prior to recordation of the final plat for each phase, the entire open
space/meadow/lakes area of that phase shall be treated through a combination
of thinning, removal of understory trees, pruning, removal of ladder fuels in order
to achieve an expected average flame length of 4 feet or less during 90th
percentile weather and fuel conditions. As a condition to recording the final plat,
the applicant shall provide written certification from the Deschutes County
Forester that the property phase has been so treated.
• Throughout the life of the project the applicant shall be required to comply with
the identified treatment and identified rotation such that every area of the
annexation property is retreated and maintained every 5 years. The CC&Rs for
the property shall identify the homeowners' association as the party responsible
for the on-going treatment of the open space/meadow/lakes area.
• Prior to recordation of the final plat for each phase of development, a proportional
section of the wildlife area shall be treated through a combination of thinning,
removal of understory trees, pruning, removal of ladder fuels (i) in order to
achieve an expected average flame length of 4 feet or less during 90th percentile
weather and fuel conditions and/or (ii) for 80% of the treated area, thin trees to
an average of 20 feet' spacing, limbed to a height 6 feet. As a condition to
recording the final plat, the applicant shall provide written certification from the
Deschutes County Forester that the applicable portion of the property has been
so treated.
• Throughout the life of the project the applicant shall be required to comply with
the identified treatment and identified rotation set forth above on a rotating 5 -year
basis to ensure that the entire Wildlife Management Area is treated over a 15
year period. The CC&Rs for the property shall identify the homeowners'
association as the party responsible for the on-going treatment.
• In order to reduce the risk of ignition from the operation of the rail right-of-way the
applicant shall thin trees to 20 feet minimum spacing with removal of all mid -
height ladder fuels. This treatment shall be repeated every 5 years during the life
of the project.
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• The CC&Rs for the project shall incorporate the following standards which shall
be applicable to each lot and shall be enforceable the homeowners' association
for the resort:
All owners are required to adhere to the following planning and design considerations:
A. All structures shall include a 30' (or to the property line if less distance)
defensible space "firebreak" surrounding them, consisting of the following:
1 Dry grasses are to be kept mown to less than 4" from June 1 to October
1. Scattered bunchgrasses and other short or sporadic grasses are
excepted.
2. Trees overhanging structures to be essentially free of dead material.
3. Roofs, gutters and decks shall be maintained essentially free of
accumulations of pine needles and other debris from June 1 to October 1.
4. No trees or vegetation is allowed within 10 feet of chimney or stove
outlets.
5. Flammable mulches (bark mulch, wood chips, pine needles, etc.) or dry
grasses or ground cover is not permitted within 5 feet of structures,
unless adjacent to areas of the structure with non-flammable siding.
6. Bitterbrush and manzanita shall be removed entirely.
7. On pines and other flammable trees, branches shall be removed up to a
minimum of six (6) feet and a maximum of eight (8) feet or to three times
the height of flammable vegetation (dry grass, brush) remaining within 3
feet of tree drip lines. On pines and other flammable trees shorter than
twenty (20) feet, only the branches from the lower one-third (1/3) of the
tree shall be removed. All trees shall be maintained substantially free of
deadwood. Dead branches shall be removed to a minimum height of ten
(10) feet.
B. All chimneys shall be equipped with UL or I.B.C.U. approved spark arrestor. No
outdoor fire pits or fireplaces will be allowed. Only lidded barbeque grills will be
allowed for outdoor cooking.
C. Decks constructed of wood and greater than 12" above the ground must be kept
clear of dead vegetative materials and other highly combustible items underneath
them.
D. Vegetation on the lot shall be developed and maintained by the Owner in
accordance with the requirements of other rules established by the Association
for compliance with Firewise standards. Emphasis is on the use of fire resistive
species within the building envelope. All grass and landscaped areas within the
building envelope of each Lot must be irrigated.
E. Outside storage of firewood is prohibited.
Firewise Home Construction Requirements:
A. Driveways shall be constructed of asphalt or concrete pavers. All trees within 15
feet of the centerline of the driveway shall be limbed to provide at least 14 feet
vertical clearance above the driveway surface.
B. Only fire resistant approved roofing materials such as concrete shingles, slate,
clay tile, or high relief "presidential" style asphalt composition shingles may be
used. Non -reflective metal roofs may be approved by the Design Review
Committee on a case by case basis.
247 -15 -000464 -CU - Caldera Springs 63
C. All chimneys are to have roof saddles, downdraft preventers, and spark
arresters.
D. Plastic or other low melting point skylights are prohibited.
E. All window glass shall be double paned, and all windows having an area greater
than 35 square feet shall be tempered glass.
F. All exterior vent openings in structures and open spaces under combustible
decks (if less than 12" clearance above the ground) must be shielded with non-
combustible, corrosion resistive screening with 1/4" maximum clear openings.
The WMP imposes clear standards on the development and identifies the party
responsible for implementing the standard. The standards will be imposed as conditions
of approval. Should a homeowner and the association both fail to comply with the
conditions of approval, the County always retains its police powers to enforce the
conditions of approval. Lastly, as with Caldera Springs, the applicant states that the
annexation property will be recognized as a Firewise Community.
With respect to Firewise Community recognition, staff recommended, and the Hearings
Officer agrees, that a condition of approval requiring the homeowners association to
submit proof of Firewise recognition to the Planning Division annually from the date of
first recognition is warranted. Additionally, this same requirement should be added to
the CCRs for the homeowners association.
With respect to adequacy of the WMP, the Hearings Officer's decision in The Tree Farm
identified a number of items that must be detailed in a wildfire plan for it to be adequate.
The Board affirmed this methodology. Staff concluded, and the Hearings Officer agrees,
that it is appropriate to apply the same standards to this application where appropriate.':
A. Identify the building envelope for each lot, the extent and nature of the defensible
space around each structure, and fire fuel treatments on the building envelope
and the rest of the lot
FINDING: Pages 7 and 8 of the WMP details a number of planning and design
considerations, including specific measures that will be employed within a 30 -foot
defensible space area surrounding all proposed structures. In the November 10, 2015
submission, the applicant supplemented the WMP with additional explanation of Design
Guidelines that will apply to fire protection treatments within 30 feet of all structures.
Section 5.14 of those guidelines imposes restrictions on trees, tree types, grasses,
overhanging branches, roofs, and general requirements for development to comply with
the Firewise standards. This information, and in consideration that the building
envelopes must be located within 300 feet of all roads, is specific enough to understand
how the defensible space around future dwellings will reduce wildfire hazard.
B. Identify the fuel treatment, if any, on open space and what impact it will have on
that open space
For The Tree Farm, the Hearings Officer determined that the wildfire management plan for that project
must identify fuel treatment on slopes adjacent to residential lots. Because there are no slopes greater
than 25 percent on the subject property, this Hearings Officer did not include this component for
analysis.
247 -15 -000464 -CU - Caldera Springs 64
FINDING: Pages 5-7 of the WMP identify fuel treatment measures proposed within
open spaces and the Wildlife Management Area, including thinning of trees to provide
crown separation, removal of understory trees, pruning of trees to remove ladder fuels,
and mastication (mowing) or removal of ground vegetation to reduce potential surface
fire spread. The WMP notes that a scheduled rotation of maintenance treatments
throughout the Resort's common areas is currently being practiced.
Within the Wildlife Management Area, the WMP states that fuel treatments should be
designed to maintain a diversity of forest structure providing forage as well as hiding
cover. The WMP identifies selective thinning of smaller trees encroaching into open
areas to maintain a break in the aerial fuel profile. Treatment will include hand thinning
and mechanical applications in a patch work rotation to provide desired forest diversity.
The WMP identifies spot treatment of dead fuels, which will also break up the continuity
of the fuel profile. Finally, the WPM suggests maintenance of the two track road access
in the wildlife area, by pruning back vegetation, to provide firebreaks, control features,
and suppression resource mobility.
The findings for Question A above are supportive of this criterion as well and are
adopted here by reference. Together those findings and the information in the WMP
reasonably address Question B.
C. Identify whether and where decks and outbuildings would be permitted on each
lot.
FINDING: Page 8 of the WMP states that decks constructed of wood and greater than
12" above the ground must be kept clear of dead vegetative materials and other highly
combustible items underneath them. In addition, the November 10, 2015 submission
states that any deck over 3' in height will be limited to an aggregate 150 square feet in
size.
D. What specific, identified NFPA standards apply to the proposed annexation, and
what construction methods and building materials will be required for each
structure to meet NFPA standards
FINDING: Pages 8 and 9 of the WMP include specific construction methods and
building materials for structures. Staff questioned what specific NFPA standards, if any,
are relevant to the methods and materials identified in the WMP.
Page 9 of the WMP addresses NFPA standards generally. The WMP states that the
proposed annexation is more urban in nature than the NFPA suburban focused
guidelines and, therefore, the NFPA guidelines are not directly applicable to the
property. The WMP notes that NFPA standards are based on residential population
densities of less than 1,000 persons per square mile, while the Caldera Springs
development will have a density in excess of 1,500 persons per square mile.
Additionally, the Resort will have a full fire hydrant system and two fire departments
within three miles of the property. Nevertheless, the WMP states that the proposed
annexation is largely in compliance with, and in some areas, exceeds the applicable
elements of the NFPA 1141. The WMP goes on to state that in cases where the local
standards are more restrictive than NFPA standards, the applicant will comply with the
more restrictive standard.
247 -15 -000464 -CU - Caldera Springs 65
The applicant's November 10, 2015 submission identifies NFPA standards 1141 and
1144 and explains how those sections will be met. There is no testimony or evidence in
the record indicating that those sections cannot be met. In addition, the applicant notes
that the building materials will be limited by the building code to those appropriate for fire
hazard areas.
E. Provide a detailed description of how and by whom the wildfire plan will be
implemented, monitored, and enforced, with particular attention to the transition
between the developer and the HOA
FINDING: Page 9 of the WMP discusses implementation and oversight. The
owner/developer of the annexation property will be responsible for the design,
infrastructure construction, and initial landscaping and treatment of forest vegetation.
Individual homesite construction will go through review by the Caldera Spring Design
Review Committee ("DRC") to ensure that Firewise Community principles are met.
Further, the Caldera Springs Owners Association will be budgeted to undertake the
following tasks:
• Annual review of forest condition and health by a certified arborist
• Corrective action of deficiencies noted in each annual inspection
• Annual maintenance program to address ladder fuel reductions
• Annual inspection and notices to home owners for removal of pine needles and
other vegetative buildup on roofs, rain gutter, decks and around homes
• Maintenance of landscape and control of ladder fuels and forest health on private
undeveloped lots
• Ongoing education and awareness of Firewise Community concerns through
quarterly newsletters sent to each lot owner
• Annual Firewise Community awareness meeting with owners features a guest
speaker
In the applicant's November 10, 2015 submission, responsibilities between the
developer, owners association and the Architectural Review Committee are explained.
The developer will act as the declarant under the CC&Rs until the development is turned
over to the owners association. Under the CC&Rs, a transition committee must be
formed for the turn over. Until that time, the developer and the ARC will be solely
responsible for implementing the WMP. Thereafter, responsibility for implementation will
reside with the owners association per the CC&Rs.
F. Provide a specific, mapped evacuation plan for the entire Caldera Springs
Resort, including directions for operation of any access gates
FINDING: Page 9 of the WMP addresses the evacuation plan and states that the two
primary evacuation points will be the existing access drive onto South Century Drive to
the west, and the proposed access drive onto Vandevert Road to the south. The
annexation property will also connect to an existing secondary evacuation point to the
north, which exits into the Sunriver Business Park. All access gates open, or will open,
automatically for exiting traffic. Each gate has and will have a Knox Box with keys to
override the closure system in the event of a power failure.
247 -15 -000464 -CU - Caldera Springs 66
The applicant's November 10, 2015 submission suggests that the CMP shows
evacuation routes in that there are only three routes of egress from the proposed resort.
The applicant proposes to provide signage indicating evacuation routes within the
developed area. The Hearings Officer concludes that the CMP is a sufficient map, but
also that a condition requiring evacuation route signage is warranted.
G. Provide a detailed description of when and how residents and guests will be
informed of the wildfire plan requirements and the evacuation plan.
FINDING: Page 10 of the WMP indicates each lot owner will receive quarterly
newsletters detailing Firewise concerns, and that the DRC will hold an annual Firewise
awareness meeting with owners. The applicant states that each new homeowner will be
provided with this information upon purchase. As noted above, the Design Guidelines
for restrictions and treatments within 30 feet of each dwelling will apply at all times. A
condition of approval will require evacuation route signage. The Hearings Officer
concludes that these measures in combination will be sufficient to address this criterion.
I. Adequate public safety protection will be available through existing
fire districts or will be provided onsite according to the specification
of the state fire marshal. If the resort is located outside of an
existing fire district the developer will provide for staffed structural
fire protection services. Adequate public facilities to provide for
necessary safety services such as police and fire will be provided
on the site to serve the proposed development.
FINDING: Fire protection will be provided by the La Pine Rural Fire Protection District,
and police protection will be provided by the Deschutes County Sheriff. This criterion is
met.
J. Streams and drainage. Unless otherwise agreed to in writing by the
adjoining property owner(s), existing natural drainages on the site
will not be changed in any manner which interferes with drainage
patterns on adjoining property. All surface water drainage changes
created by the development will be contained on site in a manner
which meets all standards of the Oregon State Department of
Environmental Quality (DEQ). The erosion control plan for the
subject development will meet all standards of ORS 468.
FINDING: There are no natural drainages on the annexation property. Topography of
the site is generally level, with slopes predominantly between zero and six percent. The
native sandy soils on-site along with the significant amount of open space will promote
surface infiltration of most stormwater flow. The annexation property will be designed to
direct excess stormwater flow to the existing detention basins within the existing Resort.
For these reasons, the Stormwater Disposal and Erosion Control Master Plan, submitted
as Exhibit L, concludes that post -development stormwater flow rates will not exceed pre -
development flow rates, and that all stormwater flow will be contained with the Caldera
Spring Destination Resort. This criterion is met.
K. Adequate water will be available for all proposed uses at the
destination resort, based upon the water study and a proposed
water conservation plan. Water use will not reduce the availability
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of water in the water impact areas identified in the water study
considering existing uses and potential development previously
approved in the affected area. Water sources shall not include any
perched water table. Water shall only be taken from the regional
aquifer. Where a perched water table is pierced to access the
regional aquifer, the well must be sealed off from the perched water
table.
FINDING: As discussed above, the existing Sunriver water distribution system will be
extended to serve the annexation property. A condition of approval requiring the
applicant to provide a signed agreement for water service prior to Final Master Plan
approval is warranted. The findings addressing water supply under DCC 18.113 are
relevant here and are adopted here by this reference.
L. The wastewater disposal plan includes beneficial use to the
maximum extent practicable. Approval of the CMP shall be
conditioned on applicant's making application to DEQ for a Water
Pollution Control Facility (WPCF) permit consistent with such an
approved wastewater disposal plan. Approval shall also be
conditioned upon applicant's compliance with applicable Oregon
Administrative Rules regarding beneficial use of waste water, as
determined by DEQ. Applicant shall receive approval of a WPCF
permit consistent with this provision prior to applying for approval
for its Final Master Plan under DCC 18.113.
FINDING: The combined Sewage Collection and Water Systems Master Plan was
submitted as Exhibit I. In addition, Exhibit J is a Wastewater Treatment Review,
prepared by Vision Engineering. At the present time, the existing Sunriver
Environmental treatment plan is covered by an active Water Pollution Control Facility
("WPCF") permit. The existing Sunriver wastewater treatment system is designed and
operated to store treated sewage effluent during the winter months and irrigate at
agronomic rates during the summer months. Treated effluent is stored in an existing
reservoir at the northeast corner of the Sunriver resort during the winter months. The
treated effluent has been utilized to irrigate the northerly golf course for many decades.
That re -use of treated effluent will continue in the future. In addition, treated effluent is
utilized for irrigation of agricultural lands adjacent to the existing storage facility. Staff
found, and the Hearings Officer agrees, the wastewater disposal plan includes a
beneficial use, meeting this criterion.
The following conditions of approval are warranted:
A. The applicant shall provide a signed agreement for sewer service prior to Final
Master Plan approval.
B. The applicant shall receive approval of a WPCF permit that includes the
annexation property Prior to Final Master Plan approval,
With the proposed conditions of approval, this criterion is met.
M. The resort will mitigate any demands it creates on publicly owned
recreational facilities on public lands in the surrounding area.
247 -15 -000464 -CU - Caldera Springs 68
FINDING: The primary recreational facilities are developed on-site and will include
additional developed recreational facilities, including a pool, resort core areas and
developed recreational paths. The applicant argues that while resort users can be
expected to use public lands in the vicinity and private recreational facilities such as Mt.
Bachelor, there are no publicly owned recreational facilities located on public lands in the
surrounding area. The Hearings Officer cannot identify evidence in the record indicating
that the annexation will create undue demand on publicly owned recreational facilities on
public lands in the surrounding area. This criterion is met.
N. Site improvements will be located and designed to avoid or
minimize adverse effects of the resort on the surrounding land uses.
Measures to accomplish this may include establishment and
maintenance of buffers between the resort and adjacent land uses,
including natural vegetation and appropriate fences, berms,
landscaped areas and similar types of buffers; and setback of
structures and other developments from adjacent land uses.
FINDING: To the north is the Sunriver Business Park. To the east is the Burlington
Northern Railroad, with undeveloped USFS lands east of the railroad. Vandevert Road
borders the southern edge of the annexation property, with Vandevert Ranch, a
residential subdivision, to the south across Vandevert Road. South Century Drive
borders the southwestern portion of the annexation property, with the Crosswater
development to the west, across South Century Drive. With the exception of the
northwestern secondary access road, all site improvements within the annexation
property will observe a minimum setback of 150 feet. Within this setback, the applicant
proposes to retain existing tree cover and vegetation. Along the eastern, southern and
southwestern edges of the annexation property, the actual buffer from on-site
improvement to adjacent lands will be greater due the proposed Wildlife Mitigation Tract
to the east, Vandevert Road to the south, and South Century Drive the west. To further
mitigate adverse impacts from on-site development, the applicant has proposed to locate
developed recreational facilities in the central portion of the annexation property. This
criterion is met.
O. The resort will be served by an on-site sewage system approved by
DEQ and a water system approved by the Oregon State Health
Division except where connection to an existing public sewer or
water system is allowed by the County Comprehensive Plan, such
service will be provided to the resort.
FINDING: As discussed above, the applicant proposes to connect to existing public
sewer and water systems.
P. The destination resort will not alter the character of the surrounding
area in a manner that substantially limits, impairs or prevents
permitted or conditional uses of surrounding properties.
FINDING: As discussed above, the proposed resort will not limit the types of forestry
uses permitted on the USFS property to the east, including open space preservation,
recreational trails, wildlife habitat, and low intensity forest maintenance activities. The
proposal includes elements such as low intensity recreation, eating establishments, and
residential uses that are similar and complementary to existing uses at the adjacent
Crosswater development, Sunriver Business Park, existing Caldera Springs, and the
247 -15 -000464 -CU - Caldera Springs 69
Sunriver Resort. There is no evidence to suggest that development of the annexation
property will have any impact on the types of uses permitted both conditionally and as
outright permitted uses on surrounding properties. This criterion is met.
Q. Commercial, cultural, entertainment or accessory uses provided as
part of the destination resort will be contained within the
development and will not be oriented to public highways adjacent to
the property. Commercial, cultural and entertainment uses allowed
within the destination resort will be incidental to the resort itself. As
such, these ancillary uses will be permitted only at a scale suited to
serve visitors to the resort.
The commercial uses permitted in the destination resort will be
limited in type, location, number, dimensions and scale (both
individually and cumulatively) to that necessary to serve the needs
of resort visitors. A commercial use is necessary to serve the needs
of visitors if:
1. Its primary purpose is to provide goods or services that are
typically provided to overnight or other short term visitors to
the resort, or the use is necessary for operation, maintenance
or promotion of the destination resort; and
2. The use is oriented to the resort and is located away from or
screened from highways or other major through roadways.
FINDING: The commercial, cultural, entertainment and accessory uses provided as part
of the existing resort have been approved, are all internal to the resort, and satisfy this
standard. The applicant states that future commercial, cultural, entertainment and
accessory uses will be similarly located in the one or more resort core areas proposed
for the annexation property. The proposed core resort areas are all located internal to
the annexation property, and not oriented to any adjacent public roadways or highways.
This criterion is met.
R. A plan exists to ensure a transfer of common areas, facilities such
as sewer, water, streets and responsibility for police and fire
protection to owners' associations or similar groups if
contemplated. If such transfer is not contemplated, the owner or
responsible party shall be clearly designated. Adequate open
space, facility maintenance and police and fire protection shall be
ensured in perpetuity in a manner acceptable to the County.
FINDING: The record shows that the CCRs for the property provide the mechanism for
the eventual transfer of common areas, facilities such as sewer, water, streets to the
homeowners' association. Fire and police protection will be provided by public agencies,
so no transfer mechanism is required. This criterion is met.
S. Temporary structures will not be allowed unless approved as part of
the CMP. Temporary structures will not be allowed for more than 18
months and will be subject to all use and site plan standards of DCC
Title 18.
FINDING: The applicant states that no temporary structures are planned for the
annexation property.
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T. The open space management plan is sufficient to protect in
perpetuity identified open space values.
FINDNG: The Open Space Management Plan, submitted as Exhibit F, details open
space elements including natural common areas, lakes, ponds and streams, and pocket
parks and picnic areas. This plan indicates that the natural common areas, pocket parks
and small picnic areas will be dedicated to the homeowners association, with the
association responsible for operation and maintenance. The Open Space Management
Plan states the draft CCRs, submitted as Exhibit D, reference the dedication of common
areas and related restrictions or opportunities of use.
5. Section18.113.120 — Conservation Easements.
FINDING: At both the public hearings and in written testimony COLW argued that the
subject property is a tract of land that contains a Goal 5 resource site, and for that
reason must be placed in a conservation easement under DCC 18.113.120. COLW
states that 80% of the property lies in designated deer migration range which qualifies it
for this code provision.
The applicant counters that the provision is not applicable because it was not
implemented for Caldera Springs, and that the "resource" the County has elected to
protect is not the entire deer migration range, but a smaller subset of those areas —
"Deer Migration Priority Areas." The applicant provides sections of Deschutes County
Ordinance No. 2001-018 which state that destination resorts should be limited to areas
outside the Deer Migration Priority Areas.
Staff provided additional research in a December 22, 2105 memo. The memo explains
the distinction between the Bend/La Pine Deer Migration Corridor and Deer Migration
Priority Areas. While true that 80% of the subject property is within the migration
corridor, the County has elected to allow destination resorts in those areas, but not
within Deer Migration Priority Areas.
The record is not in dispute about where the proposed development is to be located.
The proposal is located outside any designated Deer Migration Priority Area. As the
findings above demonstrate, the portion within the migration corridor are subject to both
the destination resort standards and the County's conditional use criteria for the WA
combining zone.
A closer look at Ordinance No. 2001-018 (Exhibit 2 of applicant's December 22, 2015
letter) shows that the County made a decision to refine the comprehensive plan with
respect to Goal 5 resources. The findings in support of the ordinance state that the
amendment "identify land within the corridor but outside the Deer Migration Priority Area
as appropriate for destination resort development...." if those lands can otherwise meet
DCC 18.113. (See Findings, Section 13). This indicates a Goal 5 decision to "limit" uses
within the resource area and prohibit conflicts in others. Since no part of the proposed
development will occur in the Deer Migration Priority Area, as it is reserved as a
migration corridor, there is no purpose in also imposing a conservation easement upon
that portion of the subject property. The Hearings Officer concludes that DCC
18.113.120 is inapplicable in this instance.
247 -15 -000464 -CU - Caldera Springs 71
Dwelling Density — Since this section of the decision deals with restrictions in the
County's deer migration corridor, it is appropriate to address COLW's arguments
regarding dwelling density. COLW argues that Deschutes County Ordinance No. 92-040
requires dwelling density to be limited in order to allow 80% of the development area to
be left as open space. COLW does not identify the location of the alleged requirement
within the ordinance.
The applicant counters that COLW is misreading the ordinance and that any dwelling
density limits imposed by Ordinance 92-040 apply only in "deer winter range" and not to
deer migration corridors. The applicant also argues that the density limitations only
apply in the rural residential zone or multiple use agriculture zones. After reviewing
Ordinance 92-040, the Hearings Officer agrees that the dwelling density provisions only
apply to "deer winter range" and not to deer migration areas. The explanation provided
in the applicant's December 29, 2015 letter is sufficient to rebut COLW's argument.
F. CHAPTER 18.128, CONDITIONAL USES
1. Section 18.128.015. General Standards Governing Conditional Uses.
Except for those conditional uses permitting individual single family
dwellings, conditional uses shall comply with the following standards in
addition to the standards of the zone in which the conditional use is
located and any other applicable standards of the chapter:
FINDING: Although the proposed annexation will ultimately include single-family
dwellings, the subject conditional use permit does not request an individual single-family
dwelling. For this reason, the County's general conditional use criteria apply. Those
criteria were adequately addressed above.
A. The site under consideration shall be determined to be suitable for
the proposed use based on the following factors:
1. Site, design and operating characteristics of the use;
2. Adequacy of transportation access to the site; and
3. The natural and physical features of the site, including, but
not limited to, general topography, natural hazards and
natural resource values.
FINDING: In her decision on the original Caldera Springs approval, the Hearings
Officer made the following findings with respect to these criteria,
"This section of Chapter 18.128 includes general standards for the
permitting of a conditional use. The referenced general standards relate
to suitability, transportation, site characteristics, and compatibility. The
applicant has addressed these general standards in its application under
the provisions of DCC Chapter 18.113. The Hearings Officer concludes
the findings addressing DCC Chapter 18.113 are adequate to assure that,
in this case, DCC 18.125.015(A) is satisfied as well."
The Hearings Officer agrees with this conclusion and adopts the relevant
findings from DCC18.113 here by this reference.
247 -15 -000464 -CU - Caldera Springs 72
B. The proposed use shall be compatible with existing and projected
uses on surrounding properties based on the factors listed in DCC
18.128.015(A).
1. Site, design and operating characteristics of the use;
2. Adequacy of transportation access to the site; and
3. The natural and physical features of the site, including, but
not limited to, general topography, natural hazards and
natural resource values.
FINDING: In her decision on the original Caldera Springs approval, the Hearings Officer
made the following findings with respect to these criteria,
"This section of Chapter 18.128 includes general standards for the permitting of a
conditional use. The referenced general standards relate to suitability,
transportation, site characteristics, and compatibility. The applicant has
addressed these general standards in its application under the provisions of DCC
Chapter 18.113. The Hearings Officer concludes the findings addressing DCC
Chapter 18.113 are adequate to assure that, in this case, DCC 18.125.015(A) is
satisfied as well."
The Hearings Officer agrees with this conclusion and adopts the relevant findings
from DCC18.113 here by this reference.
IV. CONCLUSION:
Based on the above Findings of Fact and Conclusions of Law, this application is APPROVED
subject to the following conditions:
1. Approval is based upon the application, site plan, specifications, and supporting
documentation submitted by the applicant. Any substantial change in this approved use
will require review through a new land use application.
2. The resort access onto Vandevert Road shall be limited to construction -related traffic
during development of roads and infrastructure prior to final plat approval, and thereafter
a gated emergency -only access. Said access shall be gated until Vandevert Road is
disconnected from Highway 97 or the Spring River Road/Century Drive roundabout is
constructed.
PRIOR TO FINAL MASTER PLAN APPROVAL
3. The developer shall provide to the Planning Division signed agreements for sewer and
water service.
4. The developer shall submit to the Planning Division proof of a Wastewater Pollution
Control Facility permit that includes the annexation property.
PRIOR TO FINAL PLAT
5. The approach apron to Vandevert Road must be paved to reduce the amount of gravel
and debris tracked onto Vandevert Road from the property.
247 -15 -000464 -CU - Caldera Springs 73
6. Before approval of each final plat, all the following shall be provided:
A. Documentation demonstrating compliance with the 2.5 to 1 ratio as defined in
DCC 18.113.060(D)(2);
B. Documentation on all individually -owned residential units counted as overnight
lodging, including all of the following:
1) Designation on the plat of any individually -owned units that are going to
be counted as overnight lodging;
2) Deed restrictions requiring the individually -owned residential units
designated as overnight lodging units to be available for rental at least 38
weeks each year through a central reservation and check-in service
operated by the resort or by a real estate property manager, as defined in
ORS 696.010;
3) An irrevocable provision in the resort Conditions, Covenants and
Restrictions ("CC&Rs) requiring the individually -owned residential units
designated as overnight lodging units to be available for rental at least 38
weeks each year through a central reservation and check-in service
operated by the resort or by a real estate property manager, as defined in
ORS 696.010;
4) A provision in the resort CC&R's that all property owners within the resort
recognize that failure to meet the conditions in DCC
18.113.060(L)(6)(b)(iii) is a violation of Deschutes County Code and
subject to code enforcement proceedings by the County;
5) Inclusion of language in any rental contract between the owner of an
individually -owned residential unit designated as an overnight lodging unit
and any central reservation and check in service or real estate property
manager requiring that such unit be available for rental at least 38 weeks
each year through a central reservation and check-in service operated by
the resort or by a real estate property manager, as defined in ORS
696.010, and that failure to meet the conditions in DCC
18.113.060(L)(6)(b)(v) is a violation of Deschutes County Code and
subject to code enforcement proceedings by the County.
AT ALL TIMES
7. No new or expanded industrial, commercial or recreational use shall project lighting
directly onto an existing runway or taxiway or into existing airport approach surfaces
except where necessary for safe and convenient air travel. Lighting for these uses shall
incorporate shielding in their designs to reflect light away from airport approach surfaces.
No use shall imitate airport lighting or impede the ability of pilots to distinguish between
airport lighting and other lighting.
8. Within the portions of the property subject to a Landscape Management Combining
Zone, the following conditions of approval apply:
A. Except as necessary for construction of access roads, building pads, septic
drainfields, public utility easements, parking areas, etc., the existing tree and
shrub cover screening the development from the designated road, river, or
stream shall be retained. This provision does not prohibit maintenance of
existing lawns, removal of dead, diseased or hazardous vegetation; the
commercial harvest of forest products in accordance with the Oregon Forest
Practices Act, or agricultural use of the land. Removal of vegetation in
247 -15 -000464 -CU - Caldera Springs 74
accordance with the approved Wildfire Management Plan is allowed as removal
of hazardous vegetation.
B. All new structures and additions to existing structures shall finished in muted
earth tones that blend with and reduce contrast with the surrounding vegetation
and landscape of the building site.
C. No large areas, including roofs, shall be finished with white, bright or reflective
materials. Roofing, including metal roofing, shall be nonreflective and of a color
which blends with the surrounding vegetation and landscape.
D. Except as necessary to accomplish the goals of the approved Wildfire
Management Plan and in locations where the developer has installed landscaped
berms, the developer shall retain of existing vegetation, trees and topographic
features that will reduce visual impact of structures as seen from Highway 97,
South Century Drive and Vandevert Road.
E. Structures shall not exceed 30 feet in height measured from the natural grade on
the side(s) facing Highway 97, South Century Drive and Vandevert Road.
F. New exterior lighting, including security lighting, shall be sited and shielded so
that it is directed downward and is not directly visible from Highway 97, South
Century Drive and Vandevert Road.
G. No signs or other forms of outdoor advertising that are visible from a designated
landscape management river or stream shall be permitted. Property protection
signs (No Trespassing, No Hunting, etc.,) are permitted.
9. For those portions of the property within a Wildlife Area Combining Zone, the developer
shall comply with the fence standards pursuant to DCC 18.88.070.
10. Prior to development of each phase of the resort expansion, the developer shall submit
to the Planning Division an erosion control plan for that phase.
11. The resort as a whole shall maintain a maximum ratio of single-family dwelling units to
overnight accommodation units of 2.5:1.
12. Overnight Lodging Units (OLUs) shall be made available for overnight rental use by the
general public for at least 38 weeks per calendar year through one or more central
reservation and check-in services operated by the destination resort or by a real estate
manager, as defined in ORS 696.010.
13. Except as otherwise specified herein, all development (including structures, site
obscuring fences of over three feet in height and changes to the natural topography of
the land) shall be setback from exterior property lines as follows:
A. Three hundred fifty feet for commercial development including all associated
parking areas;
B. Two hundred fifty feet for multi -family development and visitor oriented
accommodations (except for single family residences) including all associated
parking areas;
C. One hundred fifty feet for above grade development other than that listed in DCC
18.113.060(G)(2)(a)(i) and (ii), including any installed landscaped berms;
D. One hundred feet for roads;
E. Fifty feet for golf courses; and
F. Fifty feet for jogging trails and bike paths where they abut private developed lots
and no setback for where they abut public roads and public lands.
247 -15 -000464 -CU - Caldera Springs 75
G. Notwithstanding Condition of Approval No. 11(C), above grade development
other than that listed in DCC 18.113.060(G)(2)(a)(i) and (ii) shall be set back 250
feet in circumstances where state highways coincide with exterior property lines.
H. The setbacks identified in Condition of Approval No. 11 shall not apply to entry
roadways and signs.
14. The resort shall compile, and maintain, in perpetuity, a registry of all overnight lodging
units.
A. The list shall identify each individually -owned unit that is counted as overnight
lodging.
B. At all times, at least one entity shall be responsible for maintaining the registry
and fulfilling the reporting requirements of DCC 18.113.060(L)(2) through (6).
C. Initially, the resort management shall be responsible for compiling and
maintaining the registry.
D. As a resort develops, the developer shall transfer responsibility for maintaining
the registry to the homeowner association(s). The terms and timing of this
transfer shall be specified in the Conditions, Covenants & Restrictions (CC&Rs).
E. Resort management shall notify the County prior to assigning the registry to a
homeowner association.
F. Each resort shall maintain records documenting its rental program related to
overnight lodging units at a convenient location in Deschutes County, with those
records accessible to the County upon 72 hour notice from the County.
G. As used in this section, "resort management" includes, but is not limited to, the
applicant and the applicant's heirs, successors in interest, assignees other than a
home owners association.
15. An annual report shall be submitted to the Planning Division by the resort management
or home owners association(s) each February 1, documenting all of the following as of
December 31 of the previous year:
A. The minimum of 150 permanent units of overnight lodging have been constructed
or that the resort is not yet required to have constructed the 150 units;
B. The number of individually -owned residential platted lots and the number of
overnight -lodging units;
C. The ratio between the individually -owned residential platted lots and the
overnight lodging units;
D. The following information on each individually -owned residential unit counted as
overnight lodging.
E. Who the owner or owners have been over the last year;
F. How many nights out of the year the unit was available for rent;
G. How many nights out of the year the unit was rented out as an overnight lodging
facility under DCC 18.113;
H. Documentation showing that these units were available for rental as required.
I. This information shall be public record subject to ORS 192.502(17).
16. To facilitate rental to the general public of the overnight lodging units, the resort shall set
up and maintain in perpetuity a telephone reservation system.
17. The resort shall ensure that any outside property managers renting required overnight
lodging units shall be required to cooperate with the provisions of this code and to
annually provide rental information on any required overnight lodging units they
represent to the central office as described in DCC 18.113.060(L)(2) and (3).
247 -15 -000464 -CU - Caldera Springs 76
18. The resort shall comply with the approved Wildlife Report.
19. Each audit report required by the approved Wildlife Report shall determine the timing of
the subsequent audit report, with an audit report required at least every five years. Each
audit report shall be submitted to the Planning Division.
20. The Covenants, Conditions and Restrictions (CCRs) and/or Bylaws for the resort shall
include a specific provision for funding of the Wildlife Report requirements and retention
of a professional biologist.
21. The resort shall comply with the approved Wildfire Management Plan.
22. The homeowners association shall submit proof of Firewise Community recognition to
the Planning Division annually from the date of first recognition. This requirement shall
be included in the CCRs for the homeowners association.
23. The homeowners association and/or the Caldera Springs Design Review Committee
shall retain a wildland fire consultant to assess ladder fuel buildup along with any
necessary thinning, spot treatment of downed fuels and mowing. Prior to any fuels
treatment, the wildland fire consultant shall coordinate with the retained professional
biologist to ensure treatments do not compromise the goals of the Wildlife Report.
24. The Covenants, Conditions and Restrictions (CCRs) and/or Bylaws for the resort shall
include a specific provision for funding of the Wildfire Management Plan requirements
and retention of a wildland fire consultant.
IA A
Kenneth D. Helm, Hearings Officer
Dated this 15th day of April, 2016. Mailed this 15th day of April, 2016.
A DECISION BY THE HEARINGS OFFICER BECOMES FINAL TWELVE (12) DAYS AFTER
THE DATE OF MAILING, UNLESS APPEALED BY A PARTY OF INTEREST.
247 -15 -000464 -CU - Caldera Springs 77
1 BEFORE THE LAND USE BOARD OF APPEALS
2
3
4
5
6
7
OF THE STATE OF OREGON
BONNIE BRODERSEN,
Petitioner,
vs.
8
9 CITY OF ASHLAND,
10 Respondent,
11
12 and
13
14 WILLIAM McDONALD and LYNN McDONALD,
15 Intervenors -Respondents.
16
17 LUBA No. 2010-056
18
19 FINAL OPINION
20 AND ORDER
21
22 Appeal from City of Ashland.
23
24 Bonnie Brodersen, Ashland, filed the petition for review and argued on her own
25 behalf
26
27 Megan Thornton, Ashland, filed a joint response brief and argued on behalf of
28 respondent. With her on the brief was Richard Appicello, City of Ashland Attorney.
29
30 Mark S. Bartholomew, Medford, filed a joint response brief and argued on behalf of
31 intervenors -respondents. With him on the brief was Hornecker, Cowling, Hassen and
32 Heysell.
33
34 BASSHAM, Board Member; HOLSTUN, Board Chair; RYAN, Board Member,
35 participated in the decision.
36
37 AFFIRMED 12/15/2010
38
39 You are entitled to judicial review of this Order. Judicial review is governed by the
40 provisions of ORS 197.850.
Page 1
1 Opinion by Bassham.
2 NATURE OF THE DECISION
3 Petitioner appeals a planning commission decision that (1) approves a new Physical
4 and Environmental Constraints Review (physical constraints) permit to construct a driveway
5 in a riparian and floodplain corridor, or (2), as an alternative, modifies a similar 2007 permit.
6 MOTION TO FILE REPLY BRIEF
7 Petitioner moves to file a reply brief to respond to an observation in the response
8 brief that, under a city code provision effective in April 2010, the permit expiration date for
9 the permit approved in the July 2010 planning commission's decision that is before us is
10 tolled while the decision is on appeal to LUBA. Petitioner argues in the reply brief that that
11 new city code tolling provision is inconsistent with state law, and therefore respondents'
12 observation about tolling is incorrect. However, the ordinance adopting that April 2010 city
13 code provision is not before us in this appeal,' and petitioner does not explain what the
14 question of whether or not the permit expiration date is tolled while on appeal to LUBA has
15 to do with any issue in the present appeal. As far as we can tell, it has none. Accordingly,
16 we do not consider the reply brief.
17 FACTS
18 In August 2007, the city council first approved the application of intervenors -
19 respondents (intervenors) for a physical constraints permit to construct the disputed
20 driveway.2 That city council decision was appealed to LUBA, which affirmed. Brodersen v.
21 City of Ashland, 55 Or LUBA 350 (2007) (Brodersen 1). We repeat the salient facts from
22 that appeal:
1 Petitioner appealed the April 2010 ordinance to LUBA, but that appeal was dismissed as untimely filed.
Brodersen v. City of Ashland, Or LUBA (LUBA No. 2010-058, August 12, 2010).
2 The August 2007 decision was in turn prompted by earlier rounds of litigation, beginning with
intervenors' October 2004 building permit application for a dwelling on tax lot 500.
Page 2
1 "Intervenors own the subject property, tax lot 500, a vacant parcel zoned for
2 low density residential use (R-1-10). The subject property is a rectangular
3 parcel with a long north -south axis. Grandview Drive, a county road with a
4 47 -foot right-of-way and a graveled surface that is approximately 12 feet
5 wide, borders the subject property to the south and ends near the property's
6 southwest corner. Tax lot 411 borders the subject property to the east. A 20
7 foot wide access easement runs from the Grandview Drive right-of-way
8 across tax lot 411 and across the subject property, to provide access to tax lot
9 501 located to the west, outside the city limits. That easement is developed
10 with an eight foot wide gravel driveway. The existing driveway encroaches
11 slightly onto the southwest corner of tax lot 412, which is owned by
12 petitioner.
13 "Portions of the existing driveway are within a floodplain area and near a
14 riparian preservation area for a branch of Wrights Creek, located to the south
15 and west. The riparian preservation area extends to the top of the bank, while
16 the floodplain area extends an additional 20 feet from the top of the bank." Id.
17 at 352-53 (footnote omitted).
18 The August 2007 physical constraints permit approved a paved driveway to access
19 tax lot 500 across the flagpole of tax lot 411, in the approximate location of an existing
20 easement and graveled driveway serving tax lot 501 further to the west. However, following
21 LUBA's decision in Brodersen I affirming the issuance of that August 2007 permit,
22 petitioner purchased tax lot 411. The existing driveway easement does not grant the owner
23 of tax lot 500 a right to cross tax lot 411 for access and petitioner made it clear to intervenors
24 that she would not grant an easement across tax lot 411 to allow the existing driveway to be
25 used to access a dwelling on tax lot 500, as the previous owner had verbally agreed to do.
26 Accordingly, on June 15, 2009, intervenors filed an application with the city to
27 modify the 2007 permit to move the driveway location completely off tax lot 411, and to
28 provide direct access off Grandview Drive. A portion of the proposed driveway location is
29 below the top of the bank of the Wrights Creek drainage and deeper within the riparian and
30 floodplain corridor than the originally proposed driveway location.
31 Figure 1 from our decision was a rough, not -to -scale drawing of the subject property
32 and environs. We have modified Figure 1 to depict the proposed new location for the
33 driveway:
Page 3
T.L. 501
Existing
Driveway
Top of bank
New
Driveway
FIGURE 1
T.L. 500
T.L. 411
T.L. 412
A
Ponderosa
Pine
Grandview Drive Right of Way
1
2
3 City staff approved the modification on November 9, 2009. Petitioner appealed the
4 staff decision to the planning commission, arguing in part that the application must be
5 evaluated as a new application rather than a modification of the 2007 permit.
6 In an apparent response to that argument, the planning commission decided to treat
7 the application as one for a new physical constraints permit rather than, or in addition to, a
8 modification of the 2007 permit. Petitioner submitted written testimony and evidence for the
9 April 13, 2010 hearing, but did not appear at the hearing. Pursuant to petitioner's written
10 request, the record was left open until April 21, 2010, and petitioner submitted additional
Page 4
1 evidence and testimony. On May 10, 2010, the planning commission reconvened and voted
2 to approve the application as a new permit, and alternatively as a modification of the 2007
3 permit, directing staff to prepare findings.3 On June 8, 2010, the planning commission
4 adopted the written decision approving the permit and adopted the staff findings. This
5 appeal followed.
6 INTRODUCTION
7 As noted, the planning commission took the unusual course of characterizing its June
8 8, 2010 decision as an approval of a new permit or, alternatively, as a modification of the
9 original 2007 permit. In the ninth assignment of error, petitioner argues that the city
10 committed procedural error by failing to provide adequate notice that it intended to process
11 the application as one for a new permit, but petitioner does not argue that the city lacked
12 legal authority to process and approve the application as one for a new permit instead of the
13 modification that was originally requested. In the third assignment of error, petitioner argues
14 that the county cannot approve the application as a modification to the 2007 permit, but can
15 approve the new driveway location only pursuant to a new physical constraints permit.
16 Other assignments of error are directed separately at the two alternative dispositions. The
17 first and second assignments of error assume that the June 8, 2010 decision approves a
18 modification to the 2007 permit. The fourth and fifth assignments of error assume that the
3 As explained in the planning commission decision:
"* * * The proposal, whether termed a modification or a new proposal is subject to the same
exact procedural review and approval criteria as a new application. They are
indistinguishable. Both a modification of a Physical & Environmental Constraints Review
Permit and a new Physical & Environmental Constraints Review Permit are considered to be
Type I procedures, allowing for administrative approval and subject to appeal. Both are
subject to the same $917 application fee, both receive the same procedural handling including
the required noticing and review, and both are considered in light of the same review criteria
and standards for a Physical & Environmental Constraints Review Permit found in [Ashland
Land Use Ordinance (ALUO) 18.62]. In addition, and perhaps most importantly, the work
proposed to be completed here remains the same regardless of whether the request is termed a
modification of the previously approved Physical & Environmental Constraints Review
Permit or simply approval of a new Physical & Environmental Constraints Review Permit. *
* *" Record 15-16.
Page 5
1 June 8, 2010 decision approves a new permit. The remaining assignments of error raise
2 various challenges under the physical constraints approval criteria and other standards, which
3 apply equally whether the decision approves a new permit or a modification.
4 For analytical clarity, we shall reorganize the assignments of error in this opinion,
5 first addressing petitioner's ninth assignment of error, alleging procedural error. Because the
6 city's primary rationale is that the June 8, 2010 decision approves a new permit, we will next
7 turn to the fourth and fifth assignments of error, which assume a new permit. Because we
8 deny those assignments of error, we technically do not need to address the first, second and
9 third assignments of error, which essentially challenge the alternative disposition as a
10 modification to the 2007 permit. However, this dispute between neighbors is in its sixth year
11 of litigation, and in an attempt to bring finality to this matter we will also address petitioner's
12 challenges to the city's alternative disposition. Finally, we will turn to the remaining
13 substantive challenges under the sixth, seventh, eighth, tenth and eleventh assignments of
14 error.
15 NINTH ASSIGNMENT OF ERROR
16 As noted, intervenors applied for, and city staff initially approved, a modification to
17 the 2007 permit. Petitioner appealed that staff decision to a de novo hearing before the
18 planning commission, arguing in relevant part that the proposed driveway cannot be
19 approved as a modification but must be reviewed as a new application for a physical
20 constraints permit. According to petitioner, the initial notice of hearing before the planning
21 commission on February 9, 2010, characterized the appeal as concerning the staff decision to
22 modify the 2007 permit. Apparently petitioner did not receive that notice of hearing, so the
23 February 9, 2010 hearing was re -scheduled, ultimately to April 13, 2010, after intervenors
24 agreed to extend the 120 -day deadline for issuing a decision. The notice of the April 13,
25 2010 hearing no longer refers to modifications to the 2007 permit, but instead suggests that
26 the application concerns a new physical constraints permit. Record 509.
Page 6
1 In this assignment of error, petitioner argues that the city committed procedural error
2 in the notice for the April 13, 2010 hearing, by not making it clear whether the city was
3 treating the application as one for a modification or a new application. ORS
4 197.835(9)(a)(B) (LUBA shall remand a land use decision if the local government failed to
5 follow the applicable procedures in a manner that prejudices the substantial rights of the
6 petitioner). According to petitioner:
7 "* * * The obfuscation of the notice violated Petitioner's substantive due
8 process rights to a fair hearing, because she prepared for the hearing as if it
9 were a hearing on the modification of a prior permit and not an application for
10 a new permit. She would have prepared differently, had she known." Petition
11 for Review 46 (emphasis in original).
12 As explained in the city's findings at Record 16, quoted at n 3, the procedures and
13 substantive standards that apply to a modification of the 2007 permit or to approval of a new
14 permit are the same. Petitioner does not dispute that finding. Since petitioner argued that the
15 application can only be approved as a new permit, petitioner should not have been very much
16 surprised that the city agreed and decided to treat it as an application for a new permit.
17 Petitioner argues that she would have "prepared differently" had she realized the city had
18 decided to treat the application as one for a new permit, but on appeal she does not specify
19 how she would have prepared differently, what different issues she would have raised or
20 evidence she would have submitted. We note that the city left the record open at petitioner's
21 request following the April 13, 2010 hearing, and petitioner submitted additional testimony
22 and evidence, including arguments that if treated as an application for a new permit, the new
23 permit should be denied under the applicable criteria, the same criteria that would apply to a
24 modification. Record 120.
25 The city's failure to provide adequate notice of its recharacterization of the
26 application prior to the April 13, 2010 hearing might very well constitute procedural error.
27 However, because the procedures and applicable standards were the same in either case, and
28 petitioner had the opportunity to submit additional testimony and evidence after she learned
Page 7
1 that the city had apparently agreed with her that the application should be treated as one for a
2 new permit, petitioner has not demonstrated on appeal that any procedural error prejudiced
3 her substantial rights. ORS 197.835(9)(a)(B).
4 Petitioner also argues under the ninth assignment of error that the planning
5 commission committed procedural error in failing to "deliberate" on her appeal. According
6 to petitioner, at the May 11, 2010 hearing, the planning commission deliberations consisted
7 of entertaining a motion to deny the appeal, based on a "finding [that] it has no merit," and to
8 direct staff to bring back findings consistent with approval. Record 57. The minutes reflect
9 that the motion passed 7-0 without further discussion. Petitioner contends that that lack of
10 discussion is inconsistent with ORS 192.620, which states in relevant part a policy that "[t]he
11 Oregon form of government requires an informed public aware of deliberations and decisions
12 of governing bodies * * *."
13 Even assuming ORS 192.620 applies to the city planning commission and is properly
14 understood to render the lack of deliberations a procedural error warranting remand, both
15 doubtful propositions, petitioner has not demonstrated that the planning commission failed to
16 "deliberate." The planning commission entertained a motion to deny the appeal, based on a
17 proposed finding that the appeal had no merit. None of the planning commission members
18 apparently felt it necessary to discuss that motion or finding further. Petitioner does not
19 explain why further discussion, or discussion of any particular duration or quality, is
20 necessary to constitute "deliberations," for purposes of ORS 192.620.
21 The ninth assignment of error is denied.
22 FOURTH AND FIFTH ASSIGNMENTS OF ERROR
23 As explained, the fourth and fifth assignments of error are based on the premise that
24 the planning commission erred in approving a new physical constraints permit. If so,
25 petitioner argues, she is entitled to raise again an issue that was resolved against her in the
26 appeal of the original 2007 physical constraints permit. In Brodersen 1, petitioner argued to
Page 8
1 the county that the subject property, tax lot 500, was not a legal lot, based on petitioner's
2 allegations that city committed errors in 1979 (preliminary partition decision) and in 1981
3 (final plat approval) in approving the partition that created tax lot 500. For the reasons
4 discussed below, petitioner believes that in order to approve a new physical constraints
5 permit, or any kind of permit regarding tax lot 500, the city must find that tax lot 500 is a
6 legal "lot." The city rejected that argument, concluding that legal lot status has nothing to do
7 with the issuance of a physical constraints permit. On appeal to LUBA, petitioner renewed
8 her arguments that tax lot 500 was not a legal lot, but failed to challenge the city's findings
9 that legal lot status had nothing to do with the applicable approval criteria. Accordingly,
10 LUBA denied that assignment of error. 55 Or LUBA at 371.
11 Petitioner argues that the legal lot issue in Brodersen I was resolved not on the merits
12 of whether legal lot status can be challenged in approving a physical constraints permit, but
13 rather on a pleading deficiency. Therefore, petitioner argues, the doctrine of issue preclusion
14 does not preclude her from raising the legal lot issue in this appeal of a new permit. The city
15 and intervenor (together, respondents) argue that all of the elements of issue preclusion set
16 out in Nelson v. Emerald People's Utility Dist., 318 Or 99, 862 P2d 1293 (1993) are met.4
17 On the merits, respondents contend that the city correctly concluded in both its 2007 permit
18 decision and the present decision that legal lot status is not a criterion for approval for a
19 physical constraints permit. Record 43.
20 Whether the doctrine of issue preclusion applies to land use proceedings is a matter
21 that is somewhat in doubt. In Lawrence v. Clackamas County, 40 Or LUBA 507 (2001),
' In Nelson, the Oregon Supreme Court held that when an issue has been decided in a prior proceeding, the
prior decision on that issue may preclude relitigation of the issue if five requirements are met: (1) the issue in
the two proceedings is identical; (2) the issue was actually litigated and was essential to a final decision on the
merits in the prior proceeding; (3) the party sought to be precluded had a full and fair opportunity to be heard
on that issue; (4) the party sought to be precluded was a party or was in privity with a party to the prior
proceeding; and (5) the prior proceeding was the type of proceeding to which preclusive effect will be given.
Nelson v. Emerald People's Utility Dist., 318 Or at 104.
Page 9
1 aff'd 180 Or App 495, 43 P3d 1192 (2002), LUBA re -affirmed earlier LUBA decisions
2 concluding that under the fifth element described in Nelson, the doctrine of issue preclusion
3 does not generally apply to land use proceedings, to preclude relitigation of an issue that was
4 resolved in one land use permit decision in the context of a subsequent land use permit
5 decision. However, as we noted in Kingsley v. City of Portland, 55 Or LUBA 256, 262-63
6 (2007), the Court of Appeals in Lawrence affirmed our decision in that appeal on narrower
7 grounds, and reserved its opinion on whether under the fifth Nelson element the issue
8 preclusion doctrine categorically does not apply to land use proceedings. That uncertainty
9 remains, but as the case law now stands, LUBA's Lawrence decision remains good law.
10 Respondents does not address our reasoning in Lawrence, and does not offer a persuasive
11 reason to reach a different conclusion.5 Accordingly, we will resolve the merits of the fourth
12 and fifth assignments of error.
13 Petitioner argued to the city that the definition of "lot" at ALUO 18.08.350 requires
14 that for a unit of land to qualify as a "lot," it must comply "with all applicable laws" at the
15 time it was created.6 According to petitioner, the city erred in concluding that tax lot 500
5 We tend to agree with respondents that, if Lawrence is wrong and preclusive effect can be given to an
issue resolved in one permit proceeding that is raised in a separate permit proceeding for purposes of the fifth
Nelson element, the remaining four Nelson elements are also met in the present case. We understand petitioner
to dispute that the second Nelson element is met, whether the issue was "actually litigated" and was essential to
a final decision on the merits in the prior proceeding. According to petitioner, LUBA did not resolve the merits
of the issue and therefore the issue was not "actually litigated." However, the "issue" here is whether the
subject property's legal lot status is or is not a criterion or consideration for approval for a physical constraints
permit. While petitioner is correct that LUBA' s decision in Brodersen I did not resolve the merits of that issue,
that is not the question. The question is whether the city's 2007 decision resolved the merits of that issue, and
there is no dispute that it did. That issue was actually litigated in the 2007 decision and was essential to the
city's final decision, as had the city resolved it in petitioner's favor the city would presumably have denied the
2007 permit.
6 ALUO 18.08.350 defines "lot" in relevant part as:
"A unit of land created by a partition or a subdivision, or a unit or contiguous units of land
under single ownership, which complies with all applicable laws at the time such lots were
created. * * *"
The subject property was created by partition and is therefore technically a parcel rather than a lot, but there is
no separate code definition of "parcel" and as written the code definition of "lot" includes "parcel."
Page 10
1 complied with all applicable laws at the time the city approved its creation, via preliminary
2 partition approval, in 1979. Therefore, petitioner argues, tax lot 500 does not qualify as a
3 "lot."
4 The city rejected that argument, citing its findings in the 2007 permit decision that tax
5 lot 500 was legally created, which the planning commission adopted by incorporation.
6 Record 31. Further, the planning commission interpreted the ALUO 18.08.350 language
7 "complies with all applicable laws at the time such lots were created" to simply acknowledge
8 that laws regarding partitioning and subdivision change over time, and not to allow a
9 collateral attack on prior unappealed decisions that approved subdivisions or partitions in the
10 past. Record 43. Finally, the city concluded that legal lot status is not an approval criterion
11 or consideration for a physical constraints permit, noting that the terms "lot" or "legal lot"
12 are nowhere found in the physical constraints approval criteria, at ALUO 18.62.040(I).7
13 Record 44.
14 On appeal, petitioner argues that under Maxwell v. Lane County, 178 Or App 210, 35
15 P3d 1128 (2001), adh'd to as modified on recons, 179 Or App 409, 40 P3d 532 (2002), the
16 city must determine the legal lot status of a unit of land in connection with a current land use
7 The criteria for a physical constraints permit are set out in ALUO 18.62.040(I):
"Criteria for approval. A Physical Constraints Review Permit shall be issued by the Staff
Advisor when the Applicant demonstrates the following:
"1. Through the application of the development standards of this chapter, the potential
impacts to the property and nearby areas have been considered, and adverse impacts
have been minimized
"2. That the applicant has considered the potential hazards that the development may
create and implemented measures to mitigate the potential hazards caused by the
development.
"3.
Page 11
That the applicant has taken all reasonable steps to reduce the adverse impact on the
environment. Irreversible actions shall be considered more seriously than reversible
actions. The Staff Advisor or Planning Commission shall consider the existing
development of the surrounding area, and the maximum permitted development
permitted by the Land Use Ordinance."
1 permit proceeding involving that unit of land, if required to do so by "applicable legislation."
2 178 Or App at 220-21. In Maxwell, petitioner argues, the Court of Appeals held a
3 requirement that a permit decision maker determine whether a unit of land is a legal lot or
4 lawfully created lot need not be expressly stated in the criteria being applied to approve the
5 land use permit, but can be derived from the text in context or by consideration of the text's
6 purpose or underlying policy. According to petitioner, the definition of "lot" at ALUO
7 18.08.350 is context for the physical constraints permit and is "applicable legislation" that
8 expressly defines "lot" as a unit of land that "complies with all applicable laws at the time" it
9 was created. Therefore, petitioner concludes, the city must determine whether the city erred
10 in approving the preliminary partition plat and final plat that led to the creation of tax lot
11 500. Among other problems, petitioner argues that in 1979 the city erred in approving the
12 partition with a variance from lot depth requirements, because the 1979 code provided for
13 such a variance only for subdivisions and there was no express variance provision for
14 partitions.
15 Respondents argue, and we agree, that petitioner reads far too much into the holding
16 in Maxwell. The actual holding in Maxwell is quite limited: the Court overruled an earlier
17 Court of Appeals' decision, in McKay Creek Valley Assoc. v. Washington County, 118 Or
18 App 543, 848 P2d 624 (1993), to the extent it was understood to hold that a local government
19 is required to evaluate the legal lot status of property as part of an application to develop that
20 property only if the development approval criteria being directly applied expressly require a
21 "legal" or "lawfully created" lot or parcel.$ Maxwell held simply that an implicit
8 The Court in Maxwell concluded:
"In summary, a local government entity must determine the legal status of a unit of land in
connection with a current proceeding involving that unit of land if required to do so by
applicable legislation. Applicable legislation includes not only the local enactment governing
the particular proceeding at issue, but also other related enactments. In addition, the
requirement that the local government determine the legal status of a unit of land in
connection with a particular proceeding need not be expressly stated in the relevant
Page 12
1 requirement to evaluate the "legal lot" status of property can be derived from the applicable
2 criteria, read in context. Even assuming that the city's legislation in the present case can be
3 read to imply a requirement for a "legal" or "lawfully created" lot or parcel, petitioner
4 misunderstands what such a requirement means.
5 In LUBA's decision in McKay Creek Valley Assoc., LUBA reviewed a
6 number of earlier decisions, and held that
7 "under a local standard requiring that a lot or parcel be shown to have been
8 legally or properly created, it must be established that, at the time the lot or
9 parcel was created, any local government approvals required at that time were
10 given. * * * Such a local standard does not require a complete re -
11 examination of compliance with every approval standard that may have
12 applied at the time the lot or parcel was created." 24 Or LUBA 187, 193
13 (1992).
14 Subsequently, on review of LUBA's decision, the Court of Appeals noted the above
15 distinction drawn by LUBA, but affirmed on the narrower ground that a local government
16 must inquire into the legal or lawfully created status of a property only if the approval criteria
17 expressly require it. 118 Or App at 548-49. It was that narrower holding that the Court of
18 Appeals rejected in Maxwell. However, the Court in Maxwell did not address the scope of
19 the inquiry required under an express or implied requirement for a legal or lawfully created
20 lot or parcel and, as far as we are aware, the distinction drawn by LUBA in its McKay Creek
21 decision remains good law. Under LUBA's McKay Creek decision, where there is a
22 requirement for a legal or lawfully created parcel, whether express or implied, the relevant
23 question is whether any local government approvals required at the time were given, not
24 whether the local government approval was substantively correct or the local government
25 correctly applied the applicable approval criteria. In other words, turning briefly to the
26 present case, even if petitioner is correct that the applicable city legislation requires an
enactment, but may be derived from its text in context or by consideration of its purpose or
policy. To the extent McKay Creek holds otherwise, we now disavow it." 178 Or App at
230.
Page 13
1 evaluation of whether tax lot 500 is a legal lot or was lawfully created, the city is not
2 required to demonstrate that it correctly applied the substantive approval criteria in 1979
3 when it approved the preliminary partition plat that led to creation of tax lot 500, such as the
4 variance criteria petitioner challenges. At most, the city would have to demonstrate that the
5 partition that created tax lot 500 received whatever approval or approvals were required by
6 city legislation in effect at the time of partition approval.
7 Nothing cited in us in the holding in Maxwell or elsewhere undercuts the distinction
8 LUBA drew in McKay Creek. To understand why, it is useful to take a brief look at the facts
9 and approval criteria at issue in Maxwell. In Maxwell, the applicable approval criteria for the
10 requested rezoning required the county to evaluate the number and density of "parcels"
11 surrounding the subject property, in order to determine which rural residential zone to apply.
12 The county code defined "parcel" as a unit of land created in one of three ways: (1) by
13 "partitioning land" as that term was defined under the county code, (2) in compliance with
14 applicable planning, zoning and partitioning regulations, or (3) by deed or land sales
15 contract, if there were no applicable planning, zoning or partitioning regulations. Under that
16 definition, units of land created in any other way were not "parcels." As applied to the facts
17 in Maxwell, which rural residential zone should apply ultimately depended on whether two
18 neighboring tax lots, 905A and 905B, were counted as two separate "parcels." The particular
19 facts in Maxwell were exceedingly complex, but the salient point for our purposes is that
20 there appears to have been no dispute that tax lots 905A and 905B had not been created as
21 separate units of land in any of the three ways listed in the code definition of "parcel."9
9 As explained in LUBA's opinion in Maxwell, the applicant's argument that tax lots 905A and 905B were
two separate parcels was based on a non-binding and tentative determination from county staff issued in 1999
that an unimproved county road easement had the legal effect of separating the parent parcel into two separate
parcels. Maxwell v. Lane County, 39 Or LUBA 556, 559-60 (2001). In the decision before LUBA, the
hearings officer rejected staff's understanding regarding the legal effect of the county road easement, but
ultimately concluded that the legal status of tax lots 905A and 905B as separate units of land could not be
challenged in making the rezoning decision because the rezoning criteria included no express "legal lot"
requirement, under the reasoning in the Court of Appeals' McKay Creek decision. LUBA affirmed that
Page 14
1 The Court of Appeals interpreted the rezoning criteria, considered in the context of
2 the code definition of "parcel" and other relevant text, to require the county to determine
3 which residential zone should apply based on the number of "parcels" in the area. That in
4 turn necessitated an inquiry into how the surrounding units of land were "created" and thus
5 whether they constituted "parcels" under the county definition. The Court remanded the
6 decision for the county to consider "the legal status of the relevant parcels." 178 Or App at
7 231. However, the Court did not need to address whether the county must determine whether
8 prior county decisions approving "creation" of Tax lots 905A and 905B as separate units of
9 land had been correctly decided, because there was no contention that Tax lots 905A and
10 905B had been created by a county -approved partition or other county approval process.
11 Similarly, in Reeves v. Yamhill County, 53 Or LUBA 4 (2006), the county approved a
12 forest template dwelling under ORS 215.750, which requires a finding that at least 11 lots or
13 parcels exist within a one -square mile area. There was no dispute that some of the qualifying
14 units of land within the template had not been created in any of the ways specified in the
15 relevant definitions of "parcel" in ORS 215.010 and ORS 92.010, and were therefore not
16 lawfully -created "parcels."10 Applying Maxwell, LUBA reversed the decision.
17 McKay Creek Valley Assoc., Maxwell and Reeves all involved circumstances where
18 applicable legislation made the legal status of some unit of land an issue, and the ultimate
19 legal and factual question was whether that unit of land had been created in one of the ways
20 specified under the relevant definitions of "lot" or "parcel," and thus qualified as a "lot" or
21 "parcel" for purposes of the approval standards at issue. In no case cited to us has LUBA or
conclusion, also in reliance on McKay Creek. As explained above, in Maxwell, the Court of Appeals partially
overruled its McKay Creek decision, and held that the requirement to evaluate "legal lot" status can be derived
from other "applicable legislation," and is not limited to the express language of the rezoning approval standard
being directly applied.
10 Interestingly, some or all of the qualifying lots at issue in Reeves were lots in the same unapproved
subdivision at issue in Yamhill County v. Ludwick, 294 Or 778, 663 P2d 398 (1983), the seminal case in the line
of cases leading up to Maxwell.
Page 15
1 the Court of Appeals held that a determination of the legal status of a unit of land that was
2 created by local government approval in a final partition or subdivision decision requires the
3 local government to go further and consider, or reconsider, whether the substantive approval
4 criteria were correctly applied in that prior decision.
5 In sum, petitioner misunderstands Maxwell to require the city to evaluate whether the
6 city correctly approved the 1979 partition that created tax lot 500, under the applicable
7 approval criteria. At most, if the "applicable legislation" required it, the city would have to
8 confirm that tax lot 500 was in fact created in one of the ways specified in the applicable
9 definitions, as opposed to some other way, as was the case in McKay Creek, Maxwell and
10 Reeves.
11 In the present case, the physical constraints permit criteria in ALUO Chapter
12 18.62.040(I), unlike the rezoning criteria in Maxwell, are not concerned with whether the
13 subject property or other property is a "lot," and in fact do not even mention "lot" or
14 "parcel." See n 7. Petitioner points out that other criteria applicable to development within
15 the floodplain corridor do include references to "the lot." For example, ALUO
16 18.62.070(A)(3) requires that "[f]ill and other material imported from off the lot that could
17 displace floodwater shall be limited" in specified ways." From that springboard petitioner
18 leaps to the definition of "lot" at ALUO 18.08.350. As noted, ALUO 18.08.350 defines "lot"
19 in relevant part as "[a] unit of land created by a partition or a subdivision, or a unit or
20 contiguous units of land under single ownership, which complies with all applicable laws at
21 the time such lots were created. * * *" Evidently, petitioner reads the phrase "which
22 complies with all applicable laws at the time such lots were created" to modify all of the
23 preceding phrases, including "[a] unit of land created by a partition or a subdivision[.]" The
11 However, it is worth noting that only a very small portion of tax lot 500 is subject to the floodplain
development standards. The majority of the driveway that requires approval under the floodplain development
standards is actually in the Grandview Drive right-of-way, which presumably is not a "lot" at all.
Page 16
1 syntax of ALUO 18.08.350 is unclear, and that interpretation is possible. However, it is
2 more probable that the "complies with" phrase is intended to modify the immediately
3 preceding phrase, "a unit or contiguous units of land under single ownership." If so, the
4 structure of ALUO 18.08.350 is consistent with the code definitions at issue in McKay Creek
5 and Maxwell, as well as current relevant statutory definitions, such as that for "lawfully
6 established units of land" at ORS 92.010(3)(a).12
7 In other words, the better understanding of the syntactic structure of ALUO
8 18.08.350 is that it defines "lot" as either (1) a unit of land created by a partition or
9 subdivision, or (2) a unit of land that complied with all applicable laws at the time that unit
10 of land was created. As the planning commission noted, the "complies with all applicable"
11 regulations language simply acknowledges that prior to the early 1970s, when amendments
12 to ORS chapter 92 required local government approval for all partitions and subdivisions, it
13 was lawful to create lots and parcels by processes other than a local government -approved
14 "partition" or "subdivision" as those and related terms were used in ORS chapter 92. Thus,
15 even under petitioner's expansive view of Maxwell, the dispositive question under ALUO
16 18.08.350 would be whether tax lot 500 was created by a partition or subdivision, not
17 whether it is a unit of land that complied with all applicable laws at the time it was created.
12 ORS 92.010(3)(a) provides:
"`Lawfully established unit of land' means:
"(A) A lot or parcel created pursuant to ORS 92.010 to 92.192; or
"(B) Another unit of land created:
"(i) In compliance with all applicable planning, zoning and subdivision or
partition ordinances and regulations; or
"(ii)
Page 17
By deed or land sales contract, if there were no applicable planning, zoning
or subdivision or partition ordinances or regulations."
1 With one possible exception, we do not understand petitioner to dispute that tax lot
2 500 was created in 1981 when the city approved the final partition plat, consistent with the
3 1979 preliminary plat approval, although petitioner disputes that that approval was legally
4 correct and consistent with all applicable approval criteria. Under our understanding of
5 McKay Creek, Maxwell and ALUO 18.08.350, the city's partition approval is sufficient to
6 confirm that tax lot 500 is a legal "lot," to the extent such a finding is necessary for purposes
7 of approving a physical constraints permit The one possible exception involves a brief
8 argument petitioner makes that the 1981 final partition approval automatically became "null
9 and void" because the final plat was not recorded within 30 days after it was approved, as
10 required by ALUO 17.24.080 (1962). We understand petitioner to argue that if the final plat
11 became "null and void" 30 days after the final plat was approved pursuant to ALUO
12 17.24.080 (1962), then tax lot 500 was actually created (illegally) as a separate unit of land
13 when it was subsequently sold by deed, was therefore not created by "partition," and hence is
14 not a "lot" under either the first or second prong of the definition at ALUO 18.08.350.
15 However, respondents point out that ALUO 17.24.80 (1962) was replaced in 1979 by a
16 different provision allowing recordation within 60 days, and cite to evidence that the final
17 partition plat was timely recorded under that 1979 provision.
18 The fourth and fifth assignments of error are denied.
19 FIRST, SECOND AND THIRD ASSIGNMENTS OF ERROR
20 Under these assignments of error, petitioner challenges the city's alternative
21 disposition approving a modification to the 2007 physical constraints permit.
22 A. First Assignment of Error: 2008 Extension
23 Petitioner first argues that the city erred in approving a modification of the 2007
24 physical constraints permit, because previous extensions of that permit were erroneously
25 granted, and therefore the 2007 permit had expired and became void long before intervenors
Page 18
1 filed the application in 2009. Petitioner contends that a void permit cannot be resurrected
2 and modified.
3 The original physical constraints permit approved by the city council on August 7,
4 2007, was subject to ALUO 18.112.030, which provides that a permit is "deemed revoked if
5 not used within one year from date of approval," unless extended.13 Prior to August 7, 2008,
6 intervenors applied to the city for an extension, pursuant to ALUO 18.112.030 (2008), which
7 provides for a one-time extension no longer than 18 months, based on several criteria.14 On
8 August 20, 2008, city staff granted intervenors an 18 -month extension, until February 7,
9 2010 (exactly 18 months after the date intervenors applied for the extension).
10 Petitioner argues that the August 20, 2008 decision granting intervenor an 18 -month
11 extension was erroneous, for several reasons, with the result that the August 2007 permit was
12 automatically revoked and become void as of August 7, 2008. None of the reasons petitioner
13 cites for asserting that the August 20, 2008 extension decision was erroneous have any merit,
14 as far as we can tell. However, even if petitioner is correct that the city had erred in 2008 in
15 granting the 18 -month extension, respondents argue, and we agree, that any such error cannot
16 be challenged in the present appeal. Petitioner cites no approval criterion governing the
17 application to modify the 2007 permit or any other authority that would allow petitioner to
18 challenge the 2008 extension of the 2007 permit, in the context of an appeal of a decision
19 modifying the 2007 permit. The first assignment of error is denied.
13 City staff originally approved the physical constraints permit in November 2006, which was then
appealed to the planning commission and ultimately to the city council, which approved it on August 7, 2007,
after which the city council decision was appealed to LUBA, and ultimately affirmed. Petitioner appears to
argue that the one-year period to use the permit in ALUO 18.112.030 began running when city staff initially
approved the permit in November 2006. According to petitioner, the city first "extended" the permit for one
year from the date that the city council issued its final decision, on August 7, 2007, to August 7, 2008.
However, we do not understand this argument. As a matter of law, the original physical constraints permit
became a final decision for the first time when the city council approved it on August 7, 2007, and under
ALUO 18.112.030 intervenors had until August 8, 2008 to use the permit.
is In 2008, ALUO 18.112.030 was amended to limit extensions to a one-time extension no longer than 18
months, subject to certain criteria. Prior to 2008, ALUO 18.112.030 apparently did not limit the duration or
number of extensions.
Page 19
1 B. Second Assignment of Error: 2010 Recession Extension
2 Under the 18-month extension granted in 2008, the 2007 peimit would have expired
3 on February 7, 2010. As noted, on June 15, 2009, intervenors applied to the city to modify
4 the 2007 permit to move the location of the proposed driveway, and city staff
5 administratively approved the application on November 9, 2009. Petitioner appealed that
6 staff decision to the planning commission, but due to various delays the hearing was not held
7 until April 13, 2010, and the planning commission's final decision was not rendered until
8 June 8, 2010.
9 Petitioner argues that the 2007 permit expired on February 7, 2010, during her appeal
10 to the planning commission, and therefore the planning commission lost "jurisdiction" to
11 hear the appeal of the November 9, 2009 decision. The planning commission rejected this
12 argument, concluding that because it approved intervenor's application as an application for
13 a new physical constraints permit, any issue regarding the expiration date of the 2007 permit
14 was moot. Alternatively, if the application is treated as a modification of the 2007 permit,
15 the planning commission noted that on April 8, 2010, the city granted intervenors a
16 retroactive "recession" extension of the 2007 permit, pursuant to Ordinance 3007. Under
17 Ordinance 3007, which became effective on April 3, 2010, the expiration date of permits
18 issued before July 1, 2009, that were current as of January 1, 2010, can be extended for one
19 year, in addition to any previous extensions. Because the 2007 permit had been retroactively
20 extended on April 8, 2010, the planning commission concluded, it had authority to consider
21 the appeal at the hearing on April 13, 2010, and approve modifications to the 2007 permit.
22 On appeal, petitioner argues that the city erred in extending the 2007 permit under
23 Ordinance 3007, because that ordinance applies only to permits issued before July 1, 2009.
24 Petitioner contends that city staff initially approved the modifications on November 9, 2009,
25 after July 1, 2009, and that the city could not have lawfully granted a recession extension to
26 the modified 2007 permit.
Page 20
1 Respondents note that petitioner appealed the April 8, 2010 recession extension
2 decision to LUBA, but that appeal was dismissed. Brodersen v. City of Ashland, Or
3 LUBA _ (LUBA No. 2010-038, August 12, 2010). Respondents argue that petitioner
4 cannot challenge the merits of the April 8, 2010 recession extension decision, in the course
5 of the present appeal. We generally agree. The April 8, 2010 recession extension decision
6 had the clear effect of extending the 2007 physical constraint permit for an additional year,
7 and petitioner does not explain why the legal effect of that April 8, 2010 decision can be
8 challenged in an appeal of the decision before us. In any case, petitioner is simply wrong
9 that Ordinance 3007 extended the tentative staff decision to approve the modified permit that
10 was issued on November 9, 2009. Because that tentative staff decision was appealed to the
11 planning commission, it never became a final decision and could not have been extended.
12 The April 8, 2010 recession extension decision extended the unmodified 2007 permit, not the
13 tentative staff decision. That 2007 permit was thus a live, valid permit when the planning
14 commission held a hearing on petitioner's appeal on April 13, 2010.
15 Petitioner argues nonetheless that the planning commission had lost "jurisdiction" to
16 hear the appeal because between February 7, 2010, and April 8, 2010, the 2007 permit was
17 expired. As explained under the ninth assignment of error, the initial hearing on petitioner's
18 appeal was scheduled for February 9, 2010 hearing, but was rescheduled to April 13, 2010,
19 apparently because petitioner failed to receive notice of the February 9, 2010 hearing.
20 Petitioner notes that ALUO 18.108.070(B)(2)(c)(iii), governing appeal of Type I decisions,
21 provides that "[t]he appeal shall be considered at the next regular Planning Commission or
22 Hearings Board meeting[.]"15 (Emphasis added). According to petitioner, the next regular
15 ALUO 18.108.070(B)(2)(c) provides:
"i.
Page 21
Within twelve (12) days of the date of the mailing of the Staff Advisor' s final
decision, including any approved reconsideration request, the decision may be
appealed to the Planning Commission by any party entitled to receive notice of the
planning action. The appeal shall be submitted to the Planning Commission
1 planning commission meeting following February 9, 2010, was on March 9, 2010. Had the
2 city rescheduled the hearing to March 9, 2010, during the two-month window when the 2007
3 permit was expired, petitioner argues, the planning commission would not have had
4 "jurisdiction" to hear the appeal on a modification of the expired permit.16 Petitioner notes
5 that ALUO 18.108.070(B)(2)(c)(iv) provides that "[t]he appeal requirements of this section
6 must be fully met or the appeal will be considered by the city as a jurisdictional defect and
7 will not be heard or considered." The city's failure to hold a hearing "at the next regular"
8 planning commission meeting, petitioner argues, means that the "appeal requirements" of
9 ALUO 18.108.070(B)(2)(c) were not met, and thus the city lost jurisdiction to hear the
10 appeal.
11 However, we disagree that the ALUO 18.108.070(B)(2)(c)(iii) requirement to hold an
12 appeal hearing at the next regular planning commission meeting is properly viewed as an
13 "appeal requirement" as that phrase is used in ALUO 18.108.070(B)(2)(c)(iv). That phrase
14 refers to the requirements for the appellant to perfect an appeal, which are set out in ALUO
Secretary on a form approved by the City Administrator, be accompanied by a fee
established pursuant to City Council action, and be received by the city no later than
4:30 p.m. on the 12th day after the notice of decision is mailed.
If an appellant prevails at the hearing or upon subsequent appeal, the fee for the
initial hearing shall be refunded. The fee required in this section shall not apply to
appeals made by neighborhood or community organizations recognized by the city
and whose boundaries include the site.
"iii. The appeal shall be considered at the next regular Planning Commission or Hearings
Board meeting. The appeal shall be a de novo hearing and shall be considered the
initial evidentiary hearing required under ALUO 18.108.050 and ORS 197.763 as
the basis for an appeal to the Land Use Board of Appeals. The Planning Commission
or Hearings Board decision on appeal shall be effective 13 days after the findings
adopted by the Commission or Board are signed by the Chair of the Commission or
Board and mailed to the parties.
"iv. The appeal requirements of this section must be fully met or the appeal will be
considered by the city as a jurisdictional defect and will not be heard or considered."
16 Petitioner speculates that the city deliberately rescheduled the appeal hearing to April 13, 2010 instead of
March 9, 2010, in order to allow intervenor to seek a recession extension under Ordinance 3007, which did not
become effective until April 3, 2010. However, we are cited to no evidence supporting that speculation, and
even if true petitioner does not explain how it would provide a basis for reversal or remand.
Page 22
1 18.108.070(B)(2)(c)(i). It would be nonsensical to treat as a jurisdictional "appeal"
2 requirement every requirement that ALUO 18.108.070(B)(2)(c) imposes on the city, such as
3 scheduling hearings, refunding fees, signing decisions, etc. Accordingly, petitioner's
4 arguments that the planning commission lost "jurisdiction" to hear the appeal do not provide
5 a basis for reversal or remand. The second assignment of error is denied.
6 C. Third Assignment of Error: Modify Conditions of Approval
7 Petitioner argues that the city erred in approving a modification of the 2007 permit.
8 ALUO 18.108.040(A)(2)(a) authorizes the city to approve, under a Type I procedure
9 "[a]mendments or modifications to conditions of approval for Type I planning actions." The
10 2007 permit included eight conditions of approval. Petitioner argues, however, that the
11 proposed "modification" is only to the location of the proposed driveway, not to any of the
12 eight conditions of approval, and that nothing in the ALUO authorizes the city to "modify"
13 the permit itself, as distinct from the conditions of approval. The only way to modify the
14 location of the proposed driveway, petitioner argued to the city below and again on appeal, is
15 to approve a new physical constraints permit.
16 Respondents argue that the first condition of approval to the 2007 permit stated that
17 "all proposals of the Applicant are conditions of approval unless modified here." 2007
18 Record 31. According to respondents, this condition incorporated the applicant's proposals,
19 including the location of the proposed driveway, as conditions of approval. Therefore,
20 respondents argue, a modification to the proposed driveway location would necessarily
21 require and constitute a modification to the conditions of approval.
22 We agree with respondents that, even if the city lacks express authority under its code
23 to approve modifications to a permit that are not embodied in a condition of approval, a
24 proposal to modify the driveway location is a modification to the first condition of approval,
25 which treated the applicant's proposals, including the initially proposed driveway location, as
26 a condition of approval. Therefore, petitioner has not established that the city exceeded its
Page 23
1 authority in approving modifications to the 2007 permit. The third assignment of error is
2 denied.
3 SIXTH ASSIGNMENT OF ERROR
4 Petitioner argues that the city's findings with respect to the physical constraints and
5 floodplain corridor criteria are inadequate and not supported by substantial evidence.
6 A. ORS 227.178(3) Fixed Goal Post Rule
7 The arguments under this sub -assignment of error are particularly confused.
8 Petitioner and respondents appear to agree that under ORS 227.178(3) the application is
9 subject to standards and criteria in effect on June 5, 2009, the date the application to modify
10 the 2007 physical constraints permit was submitted. Petitioner argues that the application is
11 therefore not subject to Ordinance 2951, which petitioner asserts became effective July 1,
12 2009, after the application date. Ordinance 2951 amended ALUO 18.108.040(A)(2),
13 discussed under the third assignment of error, to authorize the city to approve,
14 "[a]mendments or modifications to conditions of approval for Type I planning actions."
15 (amended language emphasized) Because Ordinance 2951 post-dated the application,
16 petitioner argues, the city therefore erred in approving "modifications" to the conditions of
17 approval.
18 Respondents argue that Ordinance 2951 became effective July 1, 2008, not July 1,
19 2009, and therefore ALUO 18.108.040(A)(2) as amended was properly applied to
20 intervenor's application. Respondents are correct. Response Brief App 12. This sub -
21 assignment of error is denied.17
17 Prior to its modification ALU018.108.040(A)(2) allowed an "amendment" to a condition of approval to
be processed under a Type I procedure. It is not clear to us that there is any meaningful difference between an
"amendment" to a condition of approval and a "modification" to a condition of approval.
Page 24
1 B. ALUO 18.62.040(I)(3) Reduce Adverse Impacts on the Environment
2 ALUO 18.62.040(I)(3) requires that the applicant for a physical constraints permit
3 demonstrate that all "reasonable steps" have been taken "to reduce the adverse impact on the
4 environment." Petitioner argues that a reasonable step to reduce adverse impacts would be to
5 obtain access to tax lot 500 across parcels to the north or west and not from Grandview Drive
6 at all. Respondents argue, and we agree, that it is not a "reasonable step" to request a lengthy
7 driveway easement over adjoining property when the subject property abuts a public right -of -
8 way. ALUO 18.62.040(I)(3) is evidently concerned with steps to mitigate impacts of
9 development in an area subject to physical constraints criteria, but does not require the
10 applicant or city to consider alternatives such as not developing at all in the area subject to
11 physical constraints criteria.
12 Petitioner also argues that the planning commission members questioned the
13 applicants regarding how the paved driveway would transition to the unpaved surface of
14 Grandview Drive. Petitioner contends that an uneven transition could constitute an "adverse
15 impact on the environment," but does not explain how the driveway/road transition could
16 have an "adverse impact on the environment."
17 Finally, petitioner notes that in a 2006 staff report city staff suggested that the city
18 explore relocating the existing Grandview Drive right-of-way out of the floodplain corridor
19 to avoid impacts on the riparian area. Petitioner argues that by now approving construction
20 of a paved driveway within a portion of the Grandview Drive right-of-way that is within the
21 riparian area, the city has foreclosed the option of relocating the right-of-way and thus failed
22 to take reasonable steps to reduce adverse impacts on the environment. However, petitioner
23 does not explain why relocating the Grandview Drive right-of-way is a "reasonable step" to
24 reduce adverse impacts of the proposed driveway, and we do not see that it is. The city did
25 not err in failing to consider relocating the Grandview Drive right-of-way. This sub -
26 assignment of error is denied.
Page 25
1 C. Comprehensive Plan Goals and Policies
2 Petitioner cites to several city comprehensive plan goals and policies regarding
3 protection of riparian lands, and argues that approval of the proposed driveway within the
4 riparian corridor is inconsistent with those plan goals and policies. Respondents argue that
5 petitioner has raised the issue of consistency with the cited plan goals and policies for the
6 first time on appeal, and thus that issue is waived, under ORS 197.763(1). Petitioner does
7 not respond to the waiver challenge. This sub -assignment of error is denied.
8 D. Topography of Riparian Area
9 ALUO 18.62.075(A)(4) requires that the "general topography of Riparian
10 Preservation lands shall be retained." The city found that all fill material used for driveway
11 construction will be placed at original ground elevation, except near a Ponderosa pine tree
12 that must be preserved, and concluded that the proposal "generally" retains the existing
13 topography. Record 26.
14 Petitioner argues that ALUO 18.62.075(A)(4) does not permit any significant
15 deviation from the "general topography," but rather that the general topography "shall be
16 retained." Petitioner disputes the finding that fill material will be placed at the original
17 ground elevation, and cites to evidence that the driveway will climb a steep bank up from
18 Grandview Drive onto tax lot 500, and may require flattening the slope of the bank.
19 Respondents argue, and we agree, that approving some modification to the original
20 topography is not inconsistent with the requirement in ALUO 18.62.075 that the "general
21 topography" be retained. As the city noted, the original topography has already been altered
22 by the existing improved right-of-way and existing driveways, and the need to preserve the
23 root system of the existing Ponderosa pine, which petitioner does not dispute, dictates some
24 alteration to the original topography. Based on the evidence cited to us, petitioner has not
25 demonstrated that the city's findings of compliance with ALUO 18.62.075 are inadequate or
26 not supported by substantial evidence. This sub -assignment of error is denied.
Page 26
1 E. Location of Utilities in the Floodplain Corridor
2 ALUO 18.62.070(M) provides that "[1]ocal streets and utility connections to
3 developments in or adjacent to the Flood plain Corridor shall be located outside the Flood
4 plain Corridor, except for crossing the Corridor * * *." The city deemed the "floodplain
5 corridor" to extend 20 feet horizontal distance from the "top of the bank" of Wright Creek.
6 In both the 2007 permit and the 2009 application, intervenors proposed running utilities from
7 existing city connections down a trench in the middle of the Grandview Drive right-of-way,
8 up the proposed driveway to the contemplated dwelling site. A portion of the trench within
9 the right-of-way and driveway is within the floodplain corridor.
10 Petitioner argues that the utility trench violates ALUO 18.62.070(M), because it does
11 not "cross" the floodplain corridor but largely runs parallel to the corridor. The planning
12 commission interpreted ALUO 18.62.070(M) to apply only to new streets and associated
13 utilities, not to placing utilities in existing streets within the floodplain corridor. Record 22.
14 Petitioner does not acknowledge or challenge that interpretation.'$ Accordingly, petitioner's
15 arguments do not provide a basis for reversal or remand.
16 F. Floodplain Boundary
17 ALUO 18.62.070(A)(2) provides that the "[t]he toe of the fill shall be kept at least ten
18 feet outside of floodway channels, as defined in [ALUO] 15.10 * * *." Petitioner faults the
19 city for failing to locate the edge of the "floodway channel," and thus ensure that the fill for
20 the proposed driveway is at least 10 feet from the floodway channel. Intervenors submitted
21 an engineered drawing depicting the northern boundary of the Wrights Creek 100 -year
22 floodplain, at least 20 feet from the proposed driveway, on which the planning commission
23 relied to conclude that ALUO 18.62.070(A)(2) is satisfied. Record 37. Petitioner criticizes
18 The city council adopted a similar interpretation of ALUO 18.62.070(M) in approving the 2007 permit,
and petitioner also failed to challenge that interpretation in that appeal. Brodersen 1, 55 Or LUBA at 364.
Page 27
1 the floodplain boundary map, arguing that it is unreliable and does not identify the location
2 of the "floodway channels."
3 Petitioner is correct that neither the floodplain boundary map nor the city findings
4 identify the precise location of Wrights Creek's "floodway channels." However, as the
5 relevant terms are defined in ALUO 15.10.050, the "floodway channel" is by definition
6 located within the 100 -year floodplain that it must be reserved to discharge.19 Petitioner
7 cites no authority or evidence to the contrary. We agree with respondents that the floodplain
8 boundary map, which locates the 100 -year floodplain boundary at least 20 feet from the
9 driveway, is substantial evidence supporting the city's conclusion that the toe of the fill is at
10 least 10 feet outside the floodway channels. This sub -assignment of error is denied.
11 G. Tree Protection Zone
12 ALUO 18.61.200(B) provides that "[e]xcept as otherwise deteiinined by the Staff
13 Advisor," a permit applicant must comply with several measures designed to protect
14 significant trees, including a requirement that "[n]o construction activity shall occur within
15 the tree protection zone[.]" The tree protection zone is defined as "the area reserved around
16 a tree or group of trees in which no grading, access, stockpiling or other construction activity
17 shall occur as determined by the Staff Advisor based on review of the tree and site
18 conditions." ALUO 18.061.020(P). Intervenors' arborist and the city's Tree Commission
19 recommended various measures to protect a 28 -inch diameter Ponderosa pine tree located
20 close to the proposed driveway, and the city imposed the recommended conditions to protect
19 ALUO 15.10.050 defines "floodway" with reference to the "base flood," which is a 100 -year flood.
"D. Base Flood means the flood having a one percent (1%) chance of being equaled or
exceeded in any given year. Also referred to as the `100 -year flood.'
"I. Flood -way means that channel of a river or other watercourse and the adjacent land
areas that must be reserved in order to discharge the base flood without cumulatively
increasing the water surface elevation more than one (1) foot."
Page 28
1 the tree. One condition is to install the driveway at surface grade within the dripline of the
2 tree. However, petitioner argues that the Tree Commission actually recommended that the
3 driveway be installed at surface grade within the "tree protection zone," which petitioner
4 argues is a larger area than the dripline.
5 Petitioner does not substantiate her assertion that the "tree protection zone" as
6 determined by the staff advisor is larger than the tree's dripline. We are cited to no evidence
7 to that effect, and therefore petitioner's arguments do not provide a basis for reversal or
8 remand. This subassignment of error is denied.
9 The sixth assignment of error is denied.
10 SEVENTH ASSIGNMENT OF ERROR
11 Petitioner argues that the extreme southwestern corner of tax lot 500 is within the
12 floodway channel/100-year floodplain as delineated by intervenors' engineer, and thus fits
13 within the category of Severe Constraint Land, which includes all lands within the floodway
14 channel and lands with slopes that exceed 35 percent. While the proposed driveway
15 approved under the physical constraints permit is nowhere near the southwestern corner of
16 tax lot 500, petitioner notes that utility plans for the dwelling intervenors hope someday to
17 build on tax lot 500 show a storm drainage pipe and outfall near the southwestern corner.
18 Petitioner contends that development of the pipe and outfall in Severe Constraint Land is
19 prohibited.
20 The city found that the application for a physical constraints permit for the driveway
21 proposes no development within the floodplain boundary or land designated as Severe
22 Constraints Land. Record 33-34. That unchallenged finding adequately disposes of this
23 assignment of error.20
24 The seventh assignment of error is denied.
20 In any case, based on the plans cited to us, it is not clear that the outfall is actually located within the
100 -year floodplain boundary.
Page 29
1 EIGHTH ASSIGNMENT OF ERROR
2 One of the physical constraints permit criteria in ALUO 18.62.040(I) requires a
3 finding that the "potential impacts to the property and nearby areas have been considered,
4 and adverse impacts have been minimized." Petitioner contends that among the "adverse
5 impacts" to nearby areas that must be considered are alleged safety and vision clearance
6 issues arising from vehicles exiting the new driveway and their impacts on vehicles using the
7 driveway to tax lot 411, an undeveloped lot purchased by petitioner in 2007 or 2008.
8 According to petitioner, the proposed driveway will be located in a "blind spot" with respect
9 to the driveway to tax lot 411.
10 Respondents argue that as relevant here the physical constraints criteria in ALUO
11 18.62.040(I) are concerned with adverse environmental impacts from development within the
12 floodplain corridor, not safety issues arising from driveway design. Respondents note that
13 the city found that driveway design standards are not approval criteria for a physical
14 constraints permit and, alternatively, that the proposed driveway complies with driveway
15 standards. Record 45. Petitioner does not acknowledge or challenge those findings. We
16 agree with respondents that petitioner has not demonstrated that "adverse impacts" for
17 purposes of ALUO 18.62.040(I) includes alleged safety and vision clearance conflicts
18 between driveways.
19 The eighth assignment of error is denied.
20 TENTH ASSIGNMENT OF ERROR
21 The planning commission imposed Condition of Approval 5, requiring that prior to
22 issuance of a certificate of occupancy, presumably for a dwelling, the requirements of the fire
23 department must be addressed, including "angle of approach" and a "turnaround" for the
24 driveway. Record 48. Petitioner argues that this condition impermissibly defers the issue of
25 compliance with fire department requirements regarding access to the property to a later
26 review proceeding that will not provide notice to petitioner or opportunity to participate.
Page 30
1 Petitioner argues that the presently improved width of Grandview Drive is too narrow to
2 allow the proper turning radius for fire trucks to turn into the proposed driveway, and that the
3 turnaround located on the property outside the floodplain corridor is not strong enough to
4 support fire department vehicles.
5 The city found, with respect to the turnaround, that because it is located on a portion
6 of tax lot 500 not subject to the requirements of a physical constraints permit, the city need
7 not consider challenges directed at the turnaround. Record 46. Petitioner offers no challenge
8 to that finding. With respect to the turning radius from Grandview Drive onto the driveway,
9 petitioner cites to nothing in the ALUO that requires the applicant for a physical constraints
10 permit to demonstrate that a driveway turning radius complies with fire department
11 standards, in the course of obtaining a physical constraints permit. Absent some requirement
12 to that effect, the city did not "defer" a finding of compliance with applicable approval
13 criteria to a later review proceeding.
14 The tenth assignment of error is denied.
15 ELEVENTH ASSIGNMENT OF ERROR
16 Petitioner argues that approving a driveway within the Wrights Creek floodplain
17 corridor is inconsistent with ORS 509.585(1), which provides in relevant part that "fish
18 passage is required in all waters of this state in which native migratory fish are currently or
19 have historically been present," and ORS 509.585(2), which prohibits placing an "artificial
20 obstruction" across any waters of the state historically inhabited by native migratory fish,
21 without providing alternative passage. According to petitioner, some portions of Wright
22 Creek have historically supported migratory fish.
23 Petitioner fails to explain, much less establish, how placing a driveway within a
24 public right-of-way improved with a city street, that is located outside the 100 -year
25 floodplain of a partially culverted creek, could possibly constitute placing an "artificial
26 obstruction" across the "waters" of Wrights Creek, or in any way obstructing fish passage.
Page 31
1 The eleventh assignment of error is denied.
2 The city's decision is affirmed.
Page 32
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, 05/04/17 Pit 1:I4 LUt
11
12 and
13
14 TUMALO IRRIGATION DISTRICT,
15 Intervenor -Respondent.
16
17 LUBA No. 2016-056
18
19 FINAL OPINION
20 AND ORDER
21
22 Appeal from Deschutes County.
23
24 Carol Macbeth, Bend, filed the petition for review and argued on behalf
25 of petitioner.
26
27 No appearance by Deschutes County.
28
29 Liz Fancher, Bend, filed the response brief and argued on behalf of
30 intervenor -respondent.
31
32 BASSHAM, Board Member; HOLSTUN, Board Chair; RYAN, Board
33 Member, participated in the decision.
34
35 AFFIRMED 05/04/2017
36
37 You are entitled to judicial review of this Order. Judicial review is
38 governed by the provisions of ORS 197.850.
Page 1
1 Opinion by Bassham.
2 NATURE OF THE DECISION
3 Petitioner appeals a county board of commissioners' decision
4 determining that a large acreage property includes eight lots of record and four
5 areas of land that do not constitute lots of record.
6 FACTS
7 The subject property is near the Upper Tumalo Reservoir, which was
8 constructed in the 1920s. In the period from 1912 to 1914, prior to the
9 reservoir's construction, the State of Oregon acquired a number of existing
10 parcels in the area from private landowners, land that the state anticipated the
11 reservoir would inundate. However, due to sinkholes in the bottom of the
12 reservoir, the area that includes the subject property was never inundated, and
13 remained vacant, functioning primarily as wildlife habitat.
14 In 1988, the State of Oregon through the Oregon Water Resources
15 Department deeded the property via quitclaim deed to intervenor-respondent
16 Tumalo Irrigation District (TID), on condition that the property remain in
17 public ownership and be used as a winter feeding area for wildlife, with
18 automatic reversion back to the state if those conditions are not met. The legal
19 description of the property in the quitclaim deed consists of a metes and bounds
20 description for the perimeter of the entire property. The county assessor then
21 assigned a single tax lot number to the property, tax lot 7891. According to the
22 quitclaim deed, the total acreage of property conveyed was 930 acres.
Page 2
1 In 2004, TID applied to the county for a lot of record verification for the
2 property it acquired through the 1988 deed. As explained below, a "lot of
3 record" is a defined term under county code, which is defined to mean a unit of
4 land meeting certain size requirements that was created in one of several
5 prescribed ways.1 Whether a unit of land qualifies as a "lot of record" as
1 Deschutes County Code (DCC) 18.04.030 includes the following
definition:
"Lot of Record' means:
"A. A lot or parcel at least 5,000 square feet in area and at least
50 feet wide, which conformed to all zoning and
subdivision or partition requirements, if any, in effect on the
date the lot or parcel was created, and which was created by
any of the following means:
"1. By partitioning land as defined in ORS 92;
"2. By a subdivision plat, as defined in ORS 92, filed
with the Deschutes County Surveyor and recorded
with the Deschutes County Clerk;
"3. By deed or contract, dated and signed by the parties
to the transaction, containing a separate legal
description of the lot or parcel, and recorded in
Deschutes County if recording of the instrument was
required on the date of the conveyance. If such
instrument contains more than one legal description,
only one lot of record shall be recognized unless the
legal descriptions describe lots subject to a recorded
subdivision or town plat;
Page 3
1 defined in DCC 18.04.030 has significance for whether the unit of land can be
2 developed under the DCC. In a March 23, 2005 decision, the county concluded
3 that the property that T11) acquired in the 1988 deed is not a lot of record, but
4 rather is part of a larger unit of land consisting of TID's property and four
5 adjoining parcels still owned by the State of Oregon.
"4. By a town plat filed with the Deschutes County Clerk
and recorded in the Deschutes County Record of
Plats; or
"5.
By the subdividing or partitioning of adjacent or
surrounding land, leaving a remainder lot or parcel.
"B. Notwithstanding subsection (A), a lot or parcel validated
pursuant to ORS 92.176 shall be recognized as a lot of
record.
"C. The following shall not be deemed to be a lot of record:
"1. A lot or parcel created solely by a tax lot segregation
because of an assessor's roll change or for the
convenience of the assessor.
"2. A lot or parcel created by an intervening section or
township line or right of way.
"3. A lot or parcel created by an unrecorded subdivision,
unless the lot or parcel was conveyed subject to DCC
18.04.030(B).
"4. A parcel created by the foreclosure of a security
interest.
"For the purposes of DCC Title 18, `lot' or `parcel' means a lot of
record as defined DCC 18.04.030."
Page 4
1 On April 22, 2015, TID applied again for a lot of record verification,
2 based on new information not presented in the 2005 application. TID argued in
3 its application that its property included within its boundaries five legal lots of
4 record. A county planner reviewed the evidence submitted, primarily deeds to
5 parcels that the state acquired between 1912 and 1914, in obtaining ownership
6 of the land currently owned by TID. The planner developed six useful maps,
7 Figures 1 through 6, which depict the initial configuration of parcels prior to
8 the state's acquisition, through intervening changes, to the current
9 configuration of TID's property. We understand Figure 3 to represent the
10 parcelization pattern that existed largely unchanged from 1914, when the state
11 finished acquiring land for the reservoir project, to 1987, prior to the 1988
12 quitclaim deed. Figure 5 represents the boundaries of property conveyed to
13 Till in the 1988 quitclaim deed, based on the metes and bounds description.
14 Figure 6 represents the parcelization pattern that the planner concluded existed
15 after the 1988 quitclaim deed. The planner ultimately concluded that TI I )'s
16 property includes within its boundaries eight parcels that qualify as lots of
17 record as defined at DCC 18.04.030. As we understand it, seven of the eight
18 parcels were created by deeds recorded prior to 1914. One of those deeds that
19 was recorded prior to 1914 left a remainder parcel, an undescribed remnant of a
20 parent parcel. On Figure 6, these eight units of land are designated Parcels 1-8.
21 The planner also concluded that TID's property includes four other units of
22 land that do not qualify as lots of record, because they were illegally created by
Page 5
1 the 1988 quitclaim deed as remainder portions of four parcels retained by the
2 state. As shown on Figure 5, these four units of land are designated W, X, Y
3 and Z.
4 Petitioner appealed the planner's decision to the hearings officer, who
5 conducted an evidentiary hearing and, on November 12, 2015, issued a
6 decision affirming the planning director's decision. Petitioner appealed the
7 hearings officer's decision to the board of county commissions, which
8 conducted a hearing on the record compiled before the hearings officer. On
9 April 27, 2016, the commissioners issued a decision affirming the hearings
10 officer's decision, which it adopted as Exhibit A to the decision, along with
11 additional findings in Exhibit B. This appeal followed.
12 FIRST, SECOND, THIRD and FOURTH ASSIGNMENTS OF ERROR
13 In these assignments of error, petitioner argues on various grounds that
14 the county erred in concluding that TID's property includes eight "lots of
15 record" as defined at DCC 18.04.030. The arguments under these assignments
16 of error are largely variations on a single theme, namely, that the 1988
17 quitclaim deed had the legal effect of consolidating all then -existing parcels
18 within TID's property into a single unit of land, the bounds of which are
19 described in the deed. Accordingly, we address these assignments of error
20 together.
21 First, a note on terminology. As the parties recognize, the term "lot of
22 record" as defined at DCC 18.04.030 is not interchangeable with the terms
Page 6
1 "lot" or "parcel" as those terms are defined in ORS chapter 92, or the definition
2 of "parcel" at ORS 215.010(1).2 As noted, the key significance of designating
3 a unit of land as a "lot of record" defined at DCC 18.04.030 is that the county
4 will recognize a lot of record as a developable unit of land under the DCC.
5 For purposes of the DCC, a unit of land may be recognized under real estate
6 law or other sources of law, but not be recognized as a "lot of record," and
7 hence a developable unit of land, unless it is found to have been created in one
8 of the ways specified in DCC 18.04.030. See n 1. However, because of
9 overlapping definitions in the DCC and statutes, it is difficult to avoid some
10 terminological confusion. In this opinion, we will attempt to use the word
11 "parcel" according to the definition at ORS 215.010(1). We will reserve the
2 ORS 215.010 provides definitions for terms used in ORS chapter 215,
which governs county zoning and land use. ORS 215.010(1) provides, in
relevant part:
"As used in this chapter:
"The terms defined in ORS 92.010 shall have the meanings given
therein, except that "parcel":
"(a) Includes a unit of land created:
"(A) By partitioning land as defined in ORS 92.010;
"(B) In compliance with all applicable planning, zoning
and partitioning ordinances and regulations; or
"(C) By deed or land sales contract, if there were no
applicable planning, zoning or partitioning
ordinances or regulations."
Page 7
1 broader term "unit of land" to describe units of land that may or may not be
2 "parcels" as defined at ORS 215.010(1), and the term "lot of record" for units
3 of land that were created in one of the ways specified in DCC 18.04.030.
4 A. Consolidation by the 1988 Quitclaim Deed
5 Petitioner's main argument, set out primarily in the second and third
6 assignments of error, is that as a matter of law the 1988 quitclaim deed
7 consolidated any parcels that may have existed within TID's property into a
8 single unit of land. Because that single unit of land was created in 1988 in a
9 manner that does not qualify the resulting unit as a lot of record under any
10 provision of the DCC 18.04.030 definition of lot of record, petitioner argues
11 that the county erred in concluding that the subject property consists of
12 multiple discrete units of land, eight of which are parcels that qualify as lots of
13 record.
14 Specifically, petitioner argues that because the 1988 quitclaim deed
15 described the property conveyed with a single metes and bounds description of
16 the perimeter of TID's property, as a matter of law the deed created a single
17 unit of land corresponding with that description. According to petitioner, the
18 description contained in the deed of a single unit of land consolidated all
19 parcels that formerly existed within that newly created unit of land.
20 The county rejected that argument below. In the administrative decision
21 affirmed by the hearings officer, the planner concluded:
22 "For property boundaries to be eliminated, supporting evidence of
23 such action is required (e.g. consolidation through a property line
Page 8
1 adjustment or platting a subdivision or partition). As noted below,
2 evidence was not found that indicates the subject legal lots of
3 record were consolidated through a property line adjustment
4 approval or platted as part of a subdivision or partition. Through
5 various Lot of Record Verification decisions, Deschutes County
6 Hearings Officers found that when a single deed includes multiple
7 parcels that were lawfully created with discrete boundaries in
8 previous conveyances, it did not result in the elimination of the
9 previously established boundary lines [citing a number of local
10 hearings officer's decisions]." Record 614-15 (quoted in the
11 hearings officer's decision at Record 29).
12 Similarly, the board of commissioners concluded:
13 "Nothing in state law requires the County to interpret its lot of
14 record law to vacate property lines between lots and parcels or
15 between lots of record. The County's interpretation of its code is
16 that the act of conveying legal lots together in a single deed, alone,
17 does not eliminate lots of record." Record 39.
18 "Deschutes County's lot of record definition does not require that
19 lots or parcels held in common ownership at some point in time in
20 the history of the property or lots or parcels conveyed together on
21 one deed or legal description be aggregated together for purposes
22 of development. Neither does State law. Any unit of land created
23 by deed or contract prior to April 5, 1977 [the date the county
24 adopted its partition ordinance] is a parcel that may be a "Lot of
25 Record." Parcels 1 through 8 were created prior to April 5, 1977.
26 The conveyance of these eight parcels and parts of four other
27 parcels together in a legal description in the 1988 deed did not
28 vacate the property lines between the parcels.
29 "The boundaries of 'a lot or parcel,' whether created by deed,
30 contract, partition or subdivision map, plan or plat, exist until the
31 boundaries of the lot or parcel are vacated by a lawful vacation
32 process such as a County -approved lot consolidation or by the
33 approval of a partition or subdivision plat. Lot and parcel lines are
34 not vacated by the description of multiple legal lots of record in a
35 single legal description in deeds between private parties unless
Page 9
1
2
consolidation has been required or approved by Deschutes County.
* * *" Record 17.
3 As the county observed, petitioner cites no authority under state or local
4 land use law for the proposition that a deed that conveys multiple units of land
5 using a single metes and bounds legal description has the effect, as a matter of
6 law, of consolidating all previously separate units of land located within the
7 borders of that legal description into a single, newly -created unit of land. None
8 of the cases petitioner cites stand for that proposition, and we are aware of no
9 authority supporting it.
10 The closest case cited is Weyerhauser Real Estate Development Co. v.
11 Polk County, 63 Or LUBA 393, aff'd 246 Or App 548, 267 P3d 855 (2011),
12 which involved a property that had been subdivided by recording of a
13 subdivision plat in 1911 into four lots, but the county determined that those
14 four subdivision lots had been vacated and consolidated in a county -approved
15 1983 partition plat. LUBA, and the Court of Appeals, ultimately affirmed the
16 county's decision. The holding in Weyerhauser does not support the
17 proposition urged by petitioner, and in fact provides support for the conclusion
18 reached by county in the present appeal: that in 1988 some county -approved
19 land use process was necessary to consolidate existing parcels into a single new
20 parcel.
21 Petitioner also cites no authority, in Oregon or other states, for the
22 proposition that, as a matter of real estate law, a deed that conveys multiple
23 units of land using a single metes and bounds legal description has the
Page 10
1 automatic effect of consolidating all previously separate units of land located
2 within the borders of that legal description into a single, newly -created unit of
3 land. Our limited research has found no cases on that issue, although it is an
4 issue that must have arisen somewhere, at some point. If there are some real
5 estate cases or authority on this issue, it is probable that the answer involves
6 interpretation of the deed, and a determination of the grantor's intent. On this
7 issue, a generally applicable rule of real estate law, which applies regardless of
8 the grantor's intent, may not exist. As discussed below, the interpretation of
9 ambiguous deeds and the determination of grantor intent under real estate law
10 is a function within the particular competence and jurisdiction of the circuit
11 court. It is a function that the county, in exercise of its land use decision -
12 making authority, and LUBA, in exercise of its review authority, should avoid
13 if at all possible.
14 Returning to the more familiar realm of land use law, the board of county
15 commissioners found that under the DCC, consolidation of discrete lots or
16 parcels can be accomplished only by means of a county process that requires
17 county land use approval. Petitioner offers no focused challenge to that
18 understanding of the DCC, and provides no basis for LUBA to reject that
19 interpretation, under the deferential standard of review at ORS 197.829(1) that
Page 11
1 LUBA must apply to a governing body's interpretation of local land use
2 legislation.3
3 The 1988 quitclaim deed, whatever else it accomplished, did not serve as
4 a surrogate for any county process, with county approval, which could have
5 led to consolidation of existing parcels. Under the board of commissioners'
6 interpretation of the DCC, county approval was necessary to accomplish
7 consolidation. Petitioner identifies no authority under state law or any other
8 source of law that would compel as a matter of law the consolidation of
9 multiple existing parcels conveyed in a single legal description in a deed, in the
10 absence of the county land use approval that the board of commissioners has
11 interpreted the DCC to require. Accordingly, we have no basis to agree with
3 ORS 197.829(1) provides:
"[LUBA] shall affirm a local government's interpretation of its
comprehensive plan and land use regulations, unless the board
determines that the local government's interpretation:
"(a) Is inconsistent with the express language of the
comprehensive plan or land use regulation;
"(b) Is inconsistent with the purpose for the comprehensive plan
or land use regulation;
"(c) Is inconsistent with the underlying policy that provides the
basis for the comprehensive plan or land use regulation; or
"(d) Is contrary to a state statute, land use goal or rule that the
comprehensive plan provision or land use regulation
implements."
Page 12
1 petitioner that as a matter of law the 1988 deed had the effect of consolidating
2 existing parcels included within the boundaries of the legal description into a
3 single new unit of land.
4 B. Interpretation of DCC 18.04.030 Lot of Record Definition
5 Under the first assignment of error, petitioner argues that the county
6 misinterpreted DCC 18.04.030 in several ways, to conclude that eight units of
7 land within Till's property are "lots of record." Much of petitioner's argument
8 is premised on the view, rejected above, that the 1988 deed had the legal effect
9 of consolidating all parcels that existed within the bounds of TID's property,
10 into a single new parcel. However, in one sub-assignment of error petitioner
11 argues that the county misconstrued DCC 18.04.030 by concluding that certain
12 "remainder parcels" within TID's property qualify as "lots of record." That
13 sub-assignment of error does not depend on petitioner's rejected premise that
14 all parcels within TID's property were consolidated via the 1988 deed.
15 Accordingly, we address that argument here.
16 As noted, subsection (A)(5) of the DCC 18.04.030 definition of "lot of
17 record" provides that lot of record includes a parcel that was created "[b]y the
18 subdividing or partitioning of adjacent or surrounding land, leaving a
19 remainder lot or parcel." See n 1. In the county's initial administrative
20 decision, the planner recognized as a lot of record under DCC 18.04.030(A)(5)
21 a remainder unit of land that remains after a deed was recorded that creates a
Page 13
1 new parcel from a larger parent parcel.4 The planner recognized that a
2 remainder parcel created in this manner does not "meet the strict definition
3 contained in DCC 18.04.030(A)(5) because the adjacent or surrounding lands
4 have not been subdivided or partitioned[.]" Record 621 (quoted in the hearings
5 officer's decision at Record 29). That is, the planner apparently understood
6 DCC 18.04.030(A)(5) to apply only to remainders left over from partitioning or
7 subdividing as authorized under ORS chapter 92, as referenced in DCC
8 18.04.030(A)(1) and (2). See n 1. However, the planner reasoned that a
9 remainder parcel resulting from a deed that creates a new smaller parcel from a
10 larger parent parcel prior to adoption of statutory processes for partition and
11 subdivision can nonetheless be recognized as a "lot of record," if the remainder
12 parcel is subsequently conveyed separately by deed.
13 The board of commissioners partially disagreed with the planner's
14 understanding of DCC 18.04.030(A)(5). The commissioners interpreted the
15 term "partitioning" as used in that subsection to also include creation of a new
16 parcel by deed prior to adoption of the county partition ordinance. The
17 commissioners' findings state:
18 "Parcels created by deeds or contracts may qualify as lots of
19 record as remainder parcels through the partitioning of adjoining
4 As we understand it, the only remainder parcel recognized as a lot of
record in the county's decisions is Parcel 5. The other parcels recognized as
lots of record, 1-4 and 6-8, were created in their current configurations either
by a federal patent or by a recorded deed describing the new parcel thus
created.
Page 14
1 or surrounding land. This occurs when a deed conveys a part of a
2 parent parcel. The part conveyed is created by deed and the part
3 remaining in the ownership of the owner of the parent parcel (prior
4 to division) is a remainder parcel. The remainder parcels described
5 in the administrative decision were surrounded by parcels that had
6 been partitioned from a parent parcel by deed and the resulting
7 parcels, therefore, meet the definition of a remainder parcel in
8 DCC 18.04.030, Lot of Record (A)(5). Prior to April 5, 1977, the
9 date the County adopted its first partition ordinance, this method
10 of dividing land was lawful and the only means of creating new
11 parcels. Remainder lots were sometimes created by `modern day'
12 subdivision or partition approval, if the entire parent parcel was
13 not shown on the partition map, plan or plat but this type of lot is
14 no longer allowed to be created all parts of a divided property
15 must be shown on the plat." Record 16-17 (footnotes omitted).5
16 On appeal, petitioner argues that the commissioners' interpretation of
17 DCC 18.04.030(A)(5) is inconsistent with its express language. Petitioner
18 argues that DCC 18.04.030(A)(5) is limited by its terms to remainder lots and
19 parcels created by "subdividing" and "partitioning," and those terms must mean
20 the same as "partitioning land as defined at ORS 92," the phrase used in DCC
21 18.04..030(A)(1), and a "subdivision plat, as defined in ORS 92," the phrase
22 used in DCC 18.04.030(A)(2). See n 1. According to petitioner, the only
23 subsection of DCC 18.04.030(A) that speaks to parcels created by deed is DCC
5 In one of the omitted footnotes, the commissioners stated:
"This finding replaces and controls over conflicting findings in the
administrative decision and hearings officer's decision that says
that lands divided by deed or contract have not been subdivided or
partitioned and that the remainder parcels in this case do not meet
the strict definitions of DCC 18.04.030, Lot of Record (A)(5)."
Record 17, n 5.
Page 15
1 18.04.030(A)(3), which provides that a "lot of record" includes a lot or parcel
2 created:
3 "By deed or contract, dated and signed by the parties to the
4 transaction, containing a separate legal description of the lot or
5 parcel, and recorded in Deschutes County if recording of the
6 instrument was required on the date of the conveyance. If such
7 instrument contains more than one legal description, only one lot
8 of record shall be recognized unless the legal descriptions describe
9 lots subject to a recorded subdivision or town plat[.]"6
10 However, petitioner argues that a unit of land created via a deed as a remainder
11 of the parent parcel cannot possibly qualify as a "lot of record" under DCC
12 18.04.030(A)(3), because in that circumstance there is no "recording" of an
13 instrument that includes a "separate legal description" of that remainder unit of
14 land, as required by DCC 18.04.030(A)(3).
15 We tend to agree with petitioner that a remainder parcel created by deed
16 that does not include a legal description of the remainder parcel could not
17 qualify as a lot of record under DCC 18.04.030(A)(3), but that is not the
18 question. As noted, the commissioners interpreted DCC 18.04.030(A)(5) to
6 Neither the decision nor the parties discuss the significance of the last
sentence of DCC 18.04.030(A)(3), which states in relevant part that if a deed or
contract that creates a parcel "contains more than one legal description, only
one lot of record shall be recognized * * *." Under the last sentence, it appears
that no matter how many parcels an instrument creates, the county will
recognize only one lot of record arising from that instrument. No party argues
that the last sentence of DCC 18.04.030(A)(3) applies to the 1988 quitclaim
deed, or to the deeds that created Parcels 1-8 as reflected in Figure 6, and we do
not consider the question further.
Page 16
1 govern remainder parcels created by deed. Specifically, the commissioners
2 concluded that the scope of "partitioning" as used in that subsection also
3 includes the creation of parcel by deed prior to adoption of the county partition
4 code. Petitioner argues that "partitioning" must be limited to "partitioning land
5 as defined at ORS 92," referenced in DCC 18.04.030(A)(1). However, we
6 cannot say that the commissioners' interpretation is inconsistent with the
7 express language of DCC 18.04.030(A)(5). ORS 197.829(1)(a). As the
8 findings note, creating a new parcel by deed was a common practice long
9 before the county adopted a partitioning ordinance, and creation of new parcels
10 by deed could, and often did, result in the creation of a remainder parcel that
11 was the undescribed remainder of the parent parcel. Further, as the findings
12 note, "modern day" partition ordinances adopted pursuant to ORS chapter 92
13 do not result in the creation of undescribed remainder parcels. Thus, DCC
14 18.04.030(A)(5) would have little application under petitioner's reading, that
15 the single word "partitioning" as used in DCC 18.04.030(A)(5) has the same
16 meaning as the differently phrased "partitioning land as defined in ORS 92," as
17 used in DCC 18.04.030(A)(1). The commissioners' interpretation gives effect
18 to DCC 18.04.030(A)(5) and certainly is not implausible, read in context.
19 Siporen v. City of Medford, 349 Or 247, 259, 243 P3d 776 (2010) (LUBA must
20 affirm a governing body's code interpretation under ORS 197.829(1), unless
21 the interpretation is "implausible" considering text and context). Accordingly,
22 we affirm the commissioners' interpretation of DCC 18.04.030(A)(5).
Page 17
1 C. References to Lot of Record
2 Under the third assignment of error, petitioner argues that the county
3 erred in failing to distinguish between a unit of land that may be created by a
4 deed and a "lot of record," which is not a unit of land at all, but simply a
5 designation that confers development rights on units of land created in certain
6 ways. As an example of this error, petitioner cites a finding, quoted above,
7 where the commissioners state:
8 "* * * Lot and parcel lines are not vacated by the description of
9 multiple legal lots of record in a single legal description in deeds
10 between private parties unless consolidation has been required or
11 approved by Deschutes County." Record 17 (italics added).
12 Petitioner argues that a legal description in a deed does not describe "legal lots
13 of record," but rather describes the parcels created or conveyed.
14 Petitioner is correct that the findings sometimes appear to use the term
15 "lots of record" where a different term such as "parcel" or "unit of land" would
16 be more accurate. However, petitioner does not explain why any terminological
17 confusion results in reversible error.
18 D. Interpretation of Deeds
19 In the fourth assignment of error, petitioner argues that the county
20 misapplied the DCC 18.04.030 definition of "lot of record" to allow county
21 staff to interpret the language of the deed that created the property at issue.
22 According to petitioner, determining whether a unit of land created by deed is a
23 lot of record does not require county staff to go back through the history of all
24 the deeds involving the subject property, or examine the grantor's intent, but
Page 18
1 rather simply to determine the date on which property obtained its current
2 configuration, and then compare that date to the date the county adopted its
3 partition or subdivision ordinance. If the date of creation predates the county
4 partition ordinance, petitioner argues, then the property is a lot of record. In
5 the present case, petitioner argues that the subject property obtained its current
6 configuration in 1988, via the quitclaim deed, after the county adopted its
7 partition and subdivision ordinances, and thus neither it nor any part of it can
8 qualify as a lot of record.
9 Intervenor argues, and we agree, that petitioner's arguments do not
10 provide a basis for reversal or remand. To the extent petitioner's arguments are
11 a reiteration of its argument that the 1988 deed consolidated all parcels within
12 Till's property, we have already rejected that argument. We see no error in
13 county staff determining whether a unit of land created by deed is a lot of
14 record by examining the deed that created it; indeed DCC 18.04.030(A)(3)
15 appears to require such examination. Nor do we see any error in examining the
16 deeds in the chain of title that conveyed and shaped a unit of land between its
17 creation and its current configuration. It is generally true that a circuit court
18 has the final say on the interpretation of deeds, particularly in determining
19 grantor intent, but petitioner has not demonstrated that in issuing its decision
20 the county impermissibly interpreted the terms of any deeds or attempted to
21 determine a grantor's intent.
Page 19
1
2
E. Other Arguments
The first four assignments of error include a number of other arguments,
3 none of which merit discussion.
4 F. Conclusion
5 For the foregoing reasons, the first, second, third and fourth assignments
6 of error are denied.
7 FIFTH ASSIGNMENT OF ERROR
8 As support for its rejection of petitioner's argument that the 1988
9 quitclaim deed had the legal effect of consolidating the parcels within TID's
10 property, the county also cited and relied on ORS 92.017, which provides:
11 "A lot or parcel lawfully created shall remain a discrete lot or
12 parcel, unless the lot or parcel lines are vacated or the lot or parcel
13 is further divided, as provided by law."
14 The county's findings rely on ORS 92.017 to support its conclusion that the
15 1988 deed did not act to consolidate the parcels located within TID's property,
16 because at no point did the county approve the vacation or consolidation of
17 parcels "as provided by law."
18 Petitioner challenges the county's reliance on ORS 92.017, arguing that
19 the statute applies only to a "lot" or "parcel" as those terms are defined in ORS
20 92.010, and that under those definitions, units of land created by deed or
21 contract prior to the adoption of statutes or subdivision and partition
22 ordinances that require county approval to create lots and parcels are not "lots"
Page 20
1 or "parcels," as those terms are used in ORS chapter 92.' Accordingly,
2 petitioner argues, ORS 92.017 provides no support for the county's conclusion
7 ORS 92.010 provides in relevant part:
"As used in ORS 92.010 to 92.192, unless the context requires
otherwise:
(3)(a) `Lawfully established unit of land' means:
"(A) A lot or parcel created pursuant to ORS 92.010 to
92.192; or
"(B) Another unit of land created:
"(i)
In compliance with all applicable planning,
zoning and subdivision or partition ordinances
and regulations; or
"(ii) By deed or land sales contract, if there were no
applicable planning, zoning or subdivision or
partition ordinances or regulations.
"(4) 'Lot' means a single unit of land that is created by a
subdivision of land.
"(6) `Parcel' means a single unit of land that is created by a
partition of land.
`Partition' means either an act of partitioning land or an area
or tract of land partitioned.
"(7)
Page 21
1 that the 1988 quitclaim deed did not consolidate the parcels located within
2 TID's property.
3 We need not address the fifth assignment of error, because we have
4 affirmed the county's primary rationale for rejecting petitioner's consolidation
5 argument, namely, that a county -approved process was necessary to accomplish
6 consolidation of existing parcels, and that nothing in the county code or state
7 law provides that, as a matter of land use law, a deed with a single legal
8 description has the effect of consolidating all units of land located within the
9 description, in the absence of such a county -approved process. Accordingly,
10 even if the county erred in relying on ORS 92.017 as additional support for its
11 decision, any error would not provide a basis for reversal or remand.
"(8)
"(9)
`Partition plat' includes a final map and other writing
containing all the descriptions, locations, specifications,
provisions and information concerning a partition.
`Partitioning land' means dividing land to create not more
than three parcels of land within a calendar year * * *
"(16) `Subdivide land' means to divide land to create four or more
lots within a calendar year.
"(17) `Subdivision' means either an act of subdividing land or an
area or a tract of land subdivided.
"(18) `Subdivision plat' includes a final map and other writing
containing all the descriptions, locations, specifications,
dedications, provisions and information concerning a
subdivision."
Page 22
1 The fifth assignment of error is denied.
2 The county's decision is affirmed.
Page 23
Certificate of Mailing
I hereby certify that I served the foregoing Final Opinion and Order for LUBA No. 2016-056
on May 4, 2017, by mailing to said parties or their attorney a true copy thereof contained in a
sealed envelope with postage prepaid addressed to said parties or their attorney as follows:
Carol E. Macbeth
Staff Attorney
Central Oregon LandWatch
50 SW Bond Street, Suite 4
Bend, OR 97703
David Doyle
Deschutes County Counsel
1300 NW Wall Street, Suite 205
Bend, OR 97701
Liz Fancher
Attorney at Law
644 NW Broadway Street
Bend, OR 97701
Dated this 4th day of May, 2017.
Kelly Burgess ,_..-/ Kristi yfr ed
Paralegal Executive Support Specialist