2018-426-Minutes for Meeting August 22,2018 Recorded 10/15/2018BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541) 388-6570
Recorded in Deschutes County CJ2018-428
Nancy Blankenship; County Clerk
Commissioners' Journal 10/15/2018 4:40:33 PM
1,11,11,111111111111111111111111111
FOR RECORDING STAMP ONLY
BUSINESS MEETING MINUTES
9:00 AM
WEDNESDAY, August 22, 2018 BARNES & SAWYER ROOMS
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 Keith, Board Executive Assistant. One identified representative of the media was in
attendance.
CALL TO ORDER: Chair DeBone called the meeting to order at 9:00 a.m.
PLEDGE OF ALLEGIANCE
CITIZEN INPUT: None was offered.
CONSENT AGENDA: Before the Board was Consideration of Approval of the
Consent Agenda. Commissioner Henderson asked to pull the Consent Agenda
Item for discussion.
Consent Agenda Items:
1. Consideration of Board Signature of Document No. 2018-563, PacificSource
BOCC BUSINESS MEETING
AUGUST 22, 2018 PAGE 1 OF 5
ACTION ITEMS
Consent Agenda Item 1 as pulled for discussion: Consideration of Board Signature
of Document No. 2018-563, PacificSource
Commissioner Henderson inquired if Legal Counsel has been involved in the
discussions on the contract since this contract extension gets presented on a
monthly basis. Health Services Department representatives Dave Inbody and Janice
Garceau commented they are looking at other negotiation options on how to
address this contract. Commissioner Baney stated we are one contractor with
PacificSource and explained the services needed to meet the needs of our
constituents. County Counsel Dave Doyle explained the process and history of this
contract that also it includes Crook and Jefferson Counties. Doyle expects
meaningful face-to-face negotiations to begin in October.
BANEY: Move approval
HENDERSON: Second
VOTE: BANEY: Yes
HENDERSON: Yes
DEBONE: Chair votes yes. Motion Carried
2. FIRST READING: Ordinance No. 2018-007, Amending County Code
Relative to the County Internal Auditor and Audit Committee
David Givans, Internal Auditor presented the item for consideration and
explained the County Code relative to the Audit Committee and Internal
Auditor position.
BANEY: Move approval of the first reading by title only
HENDERSON: Second
VOTE: BAN EY: Yes
HENDERSON: Yes
DEBONE: Chair votes yes. Motion Carried
BOCC BUSINESS MEETING
AUGUST 22, 2018 PAGE 2 OF 5
Commissioner DeBone read the Ordinance into the record. The second
reading will be in two weeks.
3. SECOND READING: Ordinance No. 2018-006, Housekeeping
Amendments
Tanya Saltzman, Community Development Department presented this item.
BAN EY: Move approval of the second reading by title only
HENDERSON: Second
VOTE: BAN EY: Yes
HENDERSON: Yes
DEBONE: Chair votes yes. Motion Carried
Commissioner DeBone read the ordinance into the record.
BAN EY: Move adoption
HENDERSON: Second
VOTE: BAN EY: Yes
HENDERSON: Yes
DEBONE: Chair votes yes. Motion Carried
4. BOCC Review of Draft KCDG/Tanager Land Use Decisions
Anthony Raguine, Community Development Department and Adam Smith,
Assistant Legal Counsel presented the decision for consideration. Mr.
Raguine spoke on the interpretation of surface mining. Commissioner Baney
thanked the staff for all of their commitment of time and hard work.
Commissioner Henderson expressed his concern regarding late receipt of
the materials. Mr. Raguine and Mr. Smith reviewed the history and details of
BOCC BUSINESS MEETING
AUGUST 22, 2018 PAGE 3 OF 5
the applications for conditional use permit for surface mining and proposal
to establish a recreation oriented facility.
Mr. Raguine presented the most current red -lined revisions of the decisions.
Commissioner Baney commented on the work of the team and appreciates
the timeline of this application and trusts the staff's professional judgement
to guide the Board. Commissioner Henderson feels the materials should be
presented and reviewed by the Board rather than just trusting staff and
signing off on the documents. Commissioner Baney noted she is available
this morning to make sure this decision is this considered and concluded
prior to the pending deadline. Commissioner DeBone stated this is in light of
state-wide land use regulations and the complication with a deadline.
Mr. Raguine reviewed the revised decision relative to the conditional use
permit for surface mining, Document No. 2018-595. Regarding the revision
noted on page 17 relative to compliance with Oregon State Statutes, The
Board expressed support. Regarding the revision noted on page 54 relative
to landscaping and compliance, after discussion, Mr. Raguine and Mr. Smith
will include a few modifications to include the code citation and specificity of
the modifications. Commissioner DeBone proposed an 18 -month time
period rather than one year. The Board expressed support of the revision.
Mr. Smith highlighted information on page 19 there is a new code language
relative to code enforcement and land use.
Mr. Raguine reviewed the revised decision relative to the recreation oriented
facility. Mr. Raguine will make a few corrections based on discussion.
The revised documents will be presented to the Board this afternoon at
today's Work Session. Commissioner Baney noted her support of what has
been presented (with noted revisions).
OTHER ITEMS: None were offered.
BOCC BUSINESS MEETING
AUGUST 22, 2018 PAGE 4 OF 5
ADJOURN
Being no further items to come before the Board, the meeting was adjourned at 10:39 a.m.
DATED this 4, Day of
Commissioners.
ATTEST:
ECORDING SECRETARY
BOCC BUSINESS MEETING
2018 for the Deschutes County Board of
ANTHONY DEBONE, CHAIR.
PHILIP G. HENDERSON, VCE CHAIR
TAMMY BANEY, MMISSIONER
AUGUST 22, 2018 PAGE 5 OF 5
c Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - www.deschutes.org
BUSINESS MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
9:00 AM, WEDNESDAY, AUGUST 22, 2018
Barnes Sawyer Rooms - Deschutes Services Center - 1300 NW Wall Street - Bend
This meeting is open to the public. To watch it online, visit www.deschutes.org/meetings. Business Meetings are
usually streamed live online and video recorded.
Pursuant to ORS 192.640, this agenda includes a list of the main topics that are anticipated to be considered or
discussed. This notice does not limit the Board's ability to address other topics.
Meetings are subject to cancellation without notice.
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 Board Signature of Document No. 2018-563, PacficSource -
Amendment #9
ACTION ITEMS
Board of Commissioners Business Meeting Agenda
of 2
Wednesday, August 22, 2018 Page 1
2. FIRST READING OF Ordinance No. 2018-007, Amending County Code Relative to the
County Internal Auditor and Audit Committee - David Givans, Internal Auditor
3. SECOND READING OF Ordinance No. 2018-006, Housekeeping Amendments - Tanya
Saltzman, Associate Planner
4. BOCC Review of Draft KCDG/Tanager Land Use Decisions -Anthony Raguine, Senior
Planner
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
Deschutes County encourages persons with disabilities to participate in all programs and activities. To
request this information in an alternate format please call (541) 617-4747.
FUTURE MEETINGS:
Additional meeting dates available at www.deschutes.or•/meetin•calendar
Meeting dates and times are subject to change. If you have question, please call (541) 388-6572.
Board of Commissioners Business Meeting Agenda
of 2
Wednesday, August 22, 2018 Page 2
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 August 22, 2018
DATE: July 24, 2018
FROM: David Givans, Administrative Services, 541-330-4674
TITLE OF AGENDA ITEM:
FIRST READING OF Ordinance No. 2018-007, Amending County Code Relative to the
County Internal Auditor and Audit Committee
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 August 22, 2018
DATE: August 15, 2018
FROM: Tanya Saltzman, Community Development,
TITLE OF AGENDA ITEM:
SECOND READING OF Ordinance No. 2018-006, Housekeeping Amendments
Follow up to the public hearing conducted by the Board on July 23, 2018 to consider Ordinance No. 2018-006,
incorporating text amendments, referred to as "housekeeping amendments," correcting minor errors in the
Deschutes County Code and Comprehensive Plan.
Eli OPMENT
MEMORANDUM
TO: Deschutes County Board of County Commissioners
FROM: Tanya Saltzman, Associate Planner
DATE: August 16, 2018
SUBJECT: Consideration for Second Reading — Housekeeping Text Amendments
I. OVERVIEW
The Board of County Commissioners conducted a public hearing on July 23, 2018 to consider
Ordinance 2018-006, incorporating text amendments, hereafter referred to as "housekeeping
amendments," correcting minor errors in the Deschutes County Code and Comprehensive Plan.
The Board requested additional information regarding amendments written in response to HB
3012 (2017), which authorizes a historic home located in a rural residential exception area to be
converted to an accessory dwelling unit and a new single family dwelling to be constructed on the
same lot or parcel. After discussion at the Board meeting on August 8, the Board chose not to
adopt amendments that pertain to this bill and determined that the discussion concerning
accessory dwelling units necessitates a more substantial analysis; therefore it should not be
included in housekeeping amendments. As such, the revised ordinance put forth in this memo for
consideration of a second reading removes previous changes to the following amendments:
Chapter 18.32. MULTIPLE USE AGRICULTURAL ZONE - MUA
Section 18.32.020. Uses Permitted Outright
Chapter 18.60. RURAL RESIDENTIAL ZONE - RR -10
Section 18.60.020. Uses Permitted Outright
Chapter 18.116. SUPPLEMENTARY PROVISIONS
Section 18.116.350. Accessory Dwelling Units in RR10 and MUA Zones
Attachments
1: Ordinance 2018-006 with corresponding exhibits
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Deschutes County
Code Titles 17, 18, 22, 23, the Deschutes County * ORDINANCE NO. 2018-006
Comprehensive Plan and the Deschutes County
Zoning Map to Incorporate "Housekeeping" Changes
that Correct Errors, Incorporate Changes to State
Law, and Provide Clarification of Existing
Regulations, Procedures, and Policies.
WHEREAS, the Deschutes County Community Development Department (CDD) initiated amendments
(File No. 247 -18 -000432 -TA) to the Deschutes County Code (DCC) Title 17, Chapter 17.24, Final Plat; Title 18,
Chapters 18.04, Title, Purpose and Definitions; 18.16, Exclusive Farm Use Zones; 18.36, Forest Use Zone — F-1;
18.40, Forest Use Zone — F-2; 18.65, Rural Service Center — Unincorporated Community Zone; 18.76, Airport
Development Zone — A -D; 18.80, Airport Safety Combining Zone — AS; 18.84, Landscape Management
Combining — LM Zone; 18.100, Rural Industrial Zone — R -I; 18.116, Supplementary Provisions; 18.124, Site Plan
Review; 18.128, Conditional Use; Title 22, Chapters 22.24, Land Use Action Hearings; 22.28, Land Use Action
Decisions; Title 23, Chapter 23.01, Introduction; the Deschutes County Comprehensive Plan Chapter 5,
Supplemental Sections; and the Deschutes County Zoning Map to incorporate "housekeeping" changes to correct
errors, incorporate changes to state law, and provide clarification of existing regulations, procedures, and policies;
and
WHEREAS, the Deschutes County Planning Commission reviewed the proposed changes on June 28,
2018, and forwarded to the Deschutes County Board of County Commissioners ("Board"), a unanimous
recommendation of approval; and
WHEREAS, the Board of County Commissioners considered this matter after a duly noticed public
hearing on July 23, 2018, and concluded that the public will benefit from changes to the Deschutes County
Comprehensive Plan and Deschutes County Code (DCC); now therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. DCC 23.01.010, Introduction, is amended to read as described in Exhibit
"A," attached hereto and incorporated by reference herein, with new language underlined and deleted language
set forth in ctrikethrough.
Section 2. AMENDMENT. Deschutes County Comprehensive Plan Chapter 5, Supplemental Sections,
is amended to read as described in Exhibit "B," attached hereto and incorporated by reference herein, with new
language underlined and deleted language set forth in strikethrough.
Section 3. AMENDMENT. DCC 17.24, Final Plat, is amended to read as described in Exhibit "C,"
attached hereto and incorporated by reference herein, with new language underlined and deleted language set forth
in strikethrough.
PAGE 1 OF 3 - ORDINANCE NO. 2018-006
Section 4. AMENDMENT. DCC 18.04, Title, Purpose and Definitions, is amended to read as described
in Exhibit "D," attached hereto and incorporated by reference herein, with new language underlined and deleted
language set forth in ctrikethrough.
Section 5. AMENDMENT. DCC 18.16, Exclusive Farm Use Zones, is amended to read as described in
Exhibit "E," attached hereto and incorporated by reference herein, with new language underlined and deleted
language set forth in ctrikethrough.
Section 6. AMENDMENT. DCC 18.36, Forest Use Zone — F-1, is amended to read as described in
Exhibit "F," attached hereto and incorporated by reference herein, with new language underlined and deleted
language set forth in .str-ik-ethretrgh.
Section 7. AMENDMENT. DCC 18.40, Forest Use Zone — F-2, is amended to read as described in
Exhibit "G," attached hereto and incorporated by reference herein, with new language underlined and deleted
language set forth intrn.�=.
Section 8. AMENDMENT. DCC 18.65, Rural Service Center — Unincorporated Community Zone, is
amended to read as described in Exhibit "H," attached hereto and incorporated by reference herein, with new
language underlined and deleted language set forth in ctrikethrough.
Section 9. AMENDMENT. DCC 18.76, Airport Development Zone — A -D, is amended to read as
described in Exhibit "I," attached hereto and incorporated by reference herein, with new language underlined and
deleted language set forth in ctrikethrough.
Section 10. AMENDMENT. DCC 18.80, Airport Safety Combining Zone - AS, is amended to read as
described in Exhibit "J," attached hereto and incorporated by reference herein, with new language underlined and
deleted language set forth in ctrikethrough.
Section 11. AMENDMENT. DCC 18.84, Landscape Management Combining — LM Zone, is amended
to read as described in Exhibit "K," attached hereto and incorporated by reference herein, with new language
underlined and deleted language set forth in ctrikethrough.
Section 12. AMENDMENT. DCC 18.100, Rural Industrial Zone — R -I, is amended to read as described
in Exhibit "L," attached hereto and incorporated by reference herein, with new language underlined and deleted
language set forth in ctrikethrough.
Section 13. AMENDMENT. DCC 18.116, Supplementary Provisions, is amended to read as described
in Exhibit "M," attached hereto and incorporated by reference herein, with new language underlined and deleted
language set forth in ctrikethrough.
Section 14. AMENDMENT. DCC 18.124, Site Plan Review, is amended to read as described in Exhibit
"N," attached hereto and incorporated by reference herein, with new language underlined and deleted language
set forth in str-ilettifeugh.
Section 15. AMENDMENT. DCC 18.128, Conditional Use, is amended to read as described in Exhibit
"0," attached hereto and incorporated by reference herein, with new language underlined and deleted language
set forth in ctrikethrough.
PAGE 2 OF 3 - ORDINANCE NO. 2018-006
Section 16. AMENDMENT. DCC 22.24, Land Use Action Hearings, is amended to read as described in
Exhibit "P," attached hereto and incorporated by reference herein, with new language underlined and deleted
language set forth in ctrikethrough.
Section 17. AMENDMENT. DCC 22.28, Land Use Action Decisions, is amended to read as described
in Exhibit "Q," attached hereto and incorporated by reference herein, with new language underlined and deleted
language set forth in ctrikethrough.
Section 18. AMENDMENT. The Deschutes County Zoning Map is amended to read as described in
Exhibit "R," attached hereto and incorporated by reference herein.
Section 19. FINDINGS. The Board adopts as its findings in support of this decision attached to Ordinance
2018-006 as Exhibit "S" and incorporated by reference herein.
Dated this of , 2018 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ANTHONY DeBONE, Chair
PHIL HENDERSON, Vice Chair
ATTEST:
Recording Secretary TAMMY BANEY, Commissioner
Date of l s` Reading: day of , 2018.
Date of 2"d Reading: day of , 2018.
Record of Adoption Vote:
Commissioner Yes No Abstained Excused
Anthony DeBone
Phil Henderson
Tammy Baney
Effective date: day of , 2018.
PAGE 3 OF 3 - ORDINANCE NO. 2018-006
TES
69
a
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 August 22, 2018
DATE: August 17, 2018
FROM: Anthony Raguine, Community Development, 541-617-4739
TITLE OF AGENDA ITEM:
BOCC Review of Draft KCDG/Tanager Land Use Decisions
RECOMMENDATION & ACTION REQUESTED:
On April 12, 2018, the BOCC conducted a public hearing on the KCDG/Tanager
applications to: 1) Allow surface mining in conjunction with an irrigation district to create 2
reservoirs; 2) Add the subject property to the County's Non -Significant Mining Mineral and
Aggregate inventory; 3) Establish a recreation oriented facility, including a ski lake; and 4)
Establish a 10 -lot subdivision. Based on the record, including the duly 11th and 18th BOCC
deliberations, staff has drafted land use decisions for the BOCC's consideration.
ATTENDANCE: Anthony Raguine, Senior Planner; Adam Smith, Assistant Legal Counsel
For Recording Stamp Only
DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
FILE NUMBERS: 247 -17 -000627 -CU, 629 -PA
PROPOSAL: Application for a Conditional Use Permit for surface mining of non -goal
5 mineral and aggregate resources. The applicant also requests a
quasi-judicial plan amendment to add the subject property to Table
5.8.2 of the Deschutes County Comprehensive Plan, the "Non -
Significant Mining Mineral and Aggregate Inventory."
APPLICANT/
OWNER: KC Development Group, LLC
APPLICANT'S
ATTORNEYS: Ken Katzaroff
Liz Fancher
STAFF: Anthony Raguine, Senior Planner
I. APPLICABLE CRITERIA:
Title 18, Deschutes County Zoning Ordinance
Chapter 18.04, Definitions
Chapter 18.56, Surface Mining Impact Area Combining Zone - SMIA
Chapter 18.60, Rural Residential Zone - RR -10
Chapter 18.84, Landscape Management Combining Zone - LM
Chapter 18.88, Wildlife Area Combining Zone - WA
Chapter 18.116, Supplementary Provisions
Chapter 18.128, Conditional Use
Title 22, Deschutes County Development Procedures Ordinance
247 -17 -000627 -CU, 247 -17 -000629 -PA
Document No. 2018-595 Page 1
OAR -660-023-0250, Procedures and Requirements for Complying with Goal 5
Deschutes County Comprehensive Plan
II. BASIC FINDINGS:
A. LOCATION: The subject property includes the following properties described below:
1. 19436 Klippel Road; Assessor map 17-11-13, tax lot 820
2. 63305 Palla Lane; Assessor map 17-11-13, tax lot 824
3. 19210 Klippel Road; Assessor map 17-11-13, tax lot 828
B. ZONING: The subject property is zoned Rural Residential (RR10) and is within the
Wildlife Area (WA) Combining Zone protecting the Tumalo Deer Winter Range. A
portion of the property is located within the Landscape Management (LM) Combining
Zone associated with Tumalo Creek to the east. Portions of the property are located
in a Surface Mining Impact Area (SMIA) Zone due to the property's proximity to
Surface Mine Site 293 (17-11-12, tax lots 600, 700 and 800)1. The property is
designated Rural Residential Exception Area (RREA) on the Deschutes County
Comprehensive Plan map.
The subject property was formerly designated for surface mining as Surface Mining
Site 294 on former Tax Lot 817, Map 17-11-13. This mining site includes all land
owned by KC Development Group, LLC (hereafter "KCDG") in Section 13, T17S, R11 E
of the Willamette Meridian and additional adjoining land owned by the Cadwells.
When mining and reclamation of Site 294 was completed, the mine was rezoned
RR10. An ESEE analysis of the impacts of surface mining was adopted for former Tax
Lot 817 by Ordinance No. 90-029. This ESEE was not repealed when the subject
property was rezoned from SM to RR -10 zoning.
C. LOT OF RECORD: The subject property is comprised of legal lots of record pursuant
to lot of record determination LR -05-8. The boundaries of the legal lots of record have
been modified to their current configuration through numerous property line
adjustments including LL -08-76, LL -11-17, LL -11-18, LL -13-46, LL -13-47, LL -13-48, LL -
13 -49, LL -13-51, and LL -13-52.
D. SITE DESCRIPTION: The property proposed for inclusion on the Non -Significant
Mining Mineral and Aggregate Inventory is approximately 88 acres in size and is
irregular in shape. The property has approximately 59 acres of irrigation water rights
administered by the Tumalo Irrigation District ("TID"). In 2014, after reclamation of
The surface mine known as the Cake Pit, to the east, is governed by Title 19, which does not include
a SMIA Combining Zone. Therefore, no portion of the property is burdened by a SMIA Zone associated
with the Cake Pit.
247 -17 -000627 -CU, 247 -17 -000629 -PA
Document No. 2018-595 Page 2
Surface Mining Site 294, the portions of the property which had been mining pits were
developed with two constructed, lined reservoirs filled with water. Primary access to
the property is from a private driveway and proposed private road that connects to
Johnson Road. There is also a "ditch rider" road near the west boundary of the
property that provides access to TID irrigation facilities.
The smaller of the two reservoirs (North Reservoir) is located in the northeastern
portion of tax lot 828 and the western portion of tax lot 820. It is round in shape and
has a capacity of approximately 57 acre-feet of water. The North Reservoir is
proposed in a separate application to be used for passive recreation including
swimming and non -motorized boating.
The larger reservoir (South Reservoir) is located on tax lots 824 and 828 and has a
capacity of approximately 68 acre-feet of water. The South Reservoir is long and
narrow and has two round constructed gravel and dirt islands, one at each end, to
facilitate waterskiing. At its north end, the South Reservoir has a small harbor
consisting of a boat ramp, dock, and pilings to support three proposed boat garages.
Near the southern end of the South Reservoir are a weir and a head gate that have
been used to deliver irrigation water to the subject property. The weir and head gate
regulate the flow of water from TID's piped irrigation canal (Tumalo Feed Canal) into
the South Reservoir. From there, the water flows into the North Reservoir when water
levels reach a certain height.
The undeveloped portion of the property has a vegetative cover of scattered pine,
juniper trees and native brush and grasses. The area immediately surrounding both
reservoirs is currently devoid of vegetation.
The eastern border of the subject property is located in the canyon of Tumalo Creek.
It includes steep slopes and rock outcrops.
E. PROPOSAL: In this application, the applicant requests approval of an after -the -fact
conditional use permit for the two previously -created reservoirs to be used by TID, as
well as after -the -fact approval of surface mining of a non -goal 5 mineral and
aggregate resource. The applicant also requests approval of a quasi-judicial plan
amendment to add the subject property to Table 5.8.2 of the Deschutes County
Comprehensive Plan, the "Non -Significant Mining Mineral and Aggregate Inventory."
A separate applicant, Tanager Development, LLC (hereafter "Tanager") also submitted
separate but related applications for a recreation -oriented facility ("ROF") and a
planned unit development ("PUD") that are addressed in a separate final decision (the
"ROF/PUD Decision").2 Although this decision and the ROF/PUD Decision and
2Land use file numbers 247 -17 -000636 -CU, -637-TP, -639-CU, -640-SP, and -641-LM.
247 -17 -000627 -CU, 247 -17 -000629 -PA
Document No. 2018-595 Page 3
purposely separate land use decisions, for explanation purposes the ROF/PUD
Decision is frequently mentioned herein.
F. SURROUNDING LAND USE: The subject property is adjacent, on its western
boundary, to an area developed with single-family homes on small rural residential
parcels. This area is zoned RR10 and WA. Many of these parcels are in the Klippel
Acres unplatted subdivision where the typical lot size is five acres. The applicant owns
small RR -10 zoned parcels that adjoin the east side of the South Reservoir and Tumalo
Creek (Tax lots 601, 825, 826 and 827, Map 17-13-00). Johnson Road and the
Saddleback Subdivision lie to the west of the subject property. The Saddleback
Subdivision is zoned RR10 and WA and is developed with rural residences. TID's piped
Tumalo Feed Canal and an associated ditch rider road runs along the western
boundary of the Southern Reservoir.
Two active surface mines are located within a quarter mile of the subject property.
Approximately 1,700 feet to the north is SM Site 293 known as the Klippel Pit.
Approximately 350 feet to the east is SM Site 308, known as the Cake Pit. Both pits
are operated by Shevlin Sand and Gravel, Inc. Land zoned Exclusive Farm Use (EFU)
is located to the north and is engaged in small-scale farming consisting of hay
production and livestock grazing on irrigated pasture. To the northwest are lands
zoned Forest Use (F2) that are primarily undeveloped. Aerial photographs of the
property show that surrounding land not engaged in surface mining is characterized
by areas with a moderate to dense tree cover and some open pasture areas.
G. PUBLIC AGENCY COMMENTS: The following comments were received from public
agencies.
Deschutes County Code Enforcement. After reviewing each of the properties listed
[in the Notice of Application], I can confirm that there are no pending code
enforcement cases at this time.
Deschutes County Senior Transportation Planner. I have reviewed the transmittal
materials for 247-17-000625-LL/626-LL/628-LL/632LL/634-LL/636-CU/637-TP/639-
CU/640-SP/641-LM to develop a water ski lake and 10 -lot subdivision in the Rural
Residential (RR -10), Surface Mining (SMIA), Landscape Management (LM), and Wildlife
Area zones at the following location on 63344, 63305, 63410, and 63380 Palla Lane;
19436; 19276;19210; and 19190 Klippel Road; 63580 and 63566 Johnson Road;,19214
Buck Drive; and one lot with no assigned addressed aka 17-11-13, Tax Lots 601, 817,
820, 823, 824, 825, 826, 828,829, 2700, 11600 and 17-11-14, Tax Lot 11401.
I have reviewed the submitted traffic analysis and agree with its methodology,
conclusions, and recommendations with one minor exception. On page 5 of the June
23, 2017, Site Traffic Report, Kittelson uses a 45-50 mph speed on Johnson Road when
247 -17 -000627 -CU, 247 -17 -000629 -PA
Document No. 2018-595 Page 4
assessing sight distance. The County's practice has been to use 55 mph for other
rural roads when reviewing sight distance. Staff requests the applicant redo the sight
distance assessment based on 55 mph. The County agrees 25 mph for Buck Drive is
appropriate.
Board Resolution 2013-020 sets a transportation system development charge (SDC)
rate of $3,937 per p.m. peak hour trip. County staff has determined a local trip rate
of 0.81 p.m. peak hour trips per single-family dwelling unit; therefore the applicable
SDC is $3,189 ($3,937 X 0.81). The SDC is due prior to issuance of certificate of
occupancy; if a certificate of occupancy is not applicable, then the SDC is due within
60 days of the land use decision becoming final.
Deschutes County Road Department
I have reviewed the application materials for the above -referenced file number,
proposing a recreation facility and a 10 -lot subdivision for a tract of land including on
63344, 63305, 63410, and 63380 Palla Lane; 19436, 19276, 19210, and 19190 Klippel
Road; 63580 and 63566 Johnson Road; 19214 Buck Drive; and one lot with no assigned
address (Tax Lot #17111300829). My comments are as follows:
• All proposed private roads and public road improvements shall be designed
and constructed in accordance with Deschutes County Code (DCC) 17.48 and
American Association of State Highway and Transportation Official standards.
• Surface drainage systems shall be designed to prevent adverse impacts to
public streets (DCC 18.124.060(F)).
• Road construction plans, which will include the intersection improvements at
the intersections of the private roads with Johnson Road and Buck Drive, shall
be approved by County Road Department prior to commencement of
construction within the County right of way (DCC 17:48.060). The construction
plan review fee of $250 shall be received by the County Road Department prior
to approval. A copy of the final plans with all required signatures shall be
provided to the County Road Department upon approval by all agencies.
• The applicant shall construct all road improvements under the inspection and
approval of the County Road Department (DCC 17.48.200). The applicant may
provide a letter to the Department from a professional engineer certifying that
the improvements were constructed in accordance with the improvement
plans approved by the County (DCC 17.40.040, ORS 92.097).
• Page 5 of the June 23, 2017 Site Traffic Report by Kittelson & Associates
incorrectly states the required minimum intersection sight distances for the
proposed private road connecting to Johnson Road. The design speed for
Johnson Road shall be 55 MPH, and, pursuant to Tables 9-6 and 9-8 of A Policy
on Geometric Design of Highways and Streets (AASHTO, 2011), the required
minimum intersection sight distances are 610 feet for a left turn from stop and
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Document No. 2018-595 Page 5
530_ feet for a right turn from stop. The applicant will need to confirm that the
minimum sight distance requirements are met.
Oregon Department of Fish and Wildlife. ODFW did not file comments regarding the
conditional use permit and plan amendment addressed in this decision. They filed
comments regarding the applications filed by Tanager for approval of a planned
development and recreation -oriented facility which are addressed in the decision
approving those applications.
No comments were received from the following agencies. Deschutes County Building
Division, Deschutes County Environmental Soils Division, Deschutes County Senior
Transportation Planner, Deschutes County Road Department, Deschutes County
Property Address Coordinator, Bend Fire Department, Oregon Department of
Geology and Mineral Industries, Tumalo Irrigation District, and Watermaster - District
11.
H. PUBLIC COMMENTS: The Planning Division sent notice of this application to property
owners within 250 feet of the subject property. In addition, the applicant submitted
a Land Use Sign Affidavit indicating the land use action sign was posted on the
property on September 6, 2017. A number of emails and letters were received in
response to the mailed and posted notices. Public comments have continued to be
filed before and during public hearings before the County's hearings officer and the
Deschutes County Board of Commissioners ("BOCC"), and during post -hearing
comment periods.
Because much of the correspondence does not specify which file numbers the
comments were directed to, a summary of all comments received for this application
and the concurrent applications filed to establish the ROF and PUD are set forth
herein.
Support
• Design takes into consideration open space, flora, fauna, water needs,
firefighting needs, and neighboring properties
• Beautification and appropriate re -use of mining pits
• No use of public or irrigation district funds to construct
• Model for private/public partnerships
• Increased wildlife presence in and around both reservoirs
• Integrity of the applicants
• Sound study proves noise impacts will be minimal
• Noise from vehicles on Johnson Road, nearby surface mining activities, and
airplanes are louder than the noise generated from ski boats
• Protection of private property rights
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Document No. 2018-595 Page 6
• Residential development will provide additional buffering from nearby surface
mining activities
Opposition
• TID is not an applicant and the reservoirs were not built for the purpose of re -
regulation
• Both reservoirs and the westerly road' were built without proper land use
approval
• Noise impacts from water skiing activity
• New private roads in a rural setting, specifically the proposed new access from
Buck Drive across the Hammock property to the project
• Negative impact to property values
• Danger to children due to new roads and traffic, and the ski lake
• Loss of trees and habitat
• Impact to wildlife
• Inappropriate intensity and density of development in a rural setting
• Presence of gnats due to proximity of both reservoirs
• Increased water evaporation due to large surface area of reservoirs
• Applications cannot be processed because they will not cure the previous
unpermitted construction activity
• Applications cannot be processed because of open code enforcement cases
on the subject property
• Ski lake is an inappropriate use of water in a desert environment
• Proposed residences may conflict with existing surface mining activity
This decision addresses the comments tied to applicable criteria in the Decision below. The
alleged concerns addressing use of the south reservoir as a ski lake and use of the north
reservoir for passive recreation are addressed in the separate Final Decision on Land Use
file numbers 247 -17 -000636 -CU, -637-TP, -639-CU, -640-SP, and -641-LM.
I. LAND USE HISTORY: The land use history of the subject property is extensive. The
relevant parts of that history are discussed below.
Klippel Surface Mine. The subject property was formerly designated SM Site 294. The
significant resource on site was mined and reclaimed. It received reclamation
approval from the Oregon Department of Geology and Mineral Industries (DOGAMI)
on September 27, 2005.
3 The westerly road/driveway was maintained pursuant to temporary use permit TU -14-8 which
allowed rock crushing on the subject property in association with private road maintenance and
landscaping. A part of the westerly road was moved. Road/driveway projects of this type are
permitted outright by DCC 18.60.020 (MUA-10 zone) and DCC 18.88.030 (WA zone).
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Document No. 2018-595 Page 7
In May of 2007, Harris Kimble_ applied for a plan amendment, zone change and goal
exception to redesignate SM Site 294 from Surface Mining ("SM") and Agriculture to
RREA, and to rezone the site from SM and Exclusive Farm Use-
Tumalo/Redmond/Bend Subzone (EFU-TRB) to RR -10. In a decision dated November
8. 2007, a County Hearings Officer approved the plan amendment, zone change and
goal exception (PA -07-2, ZC-07-2). The Hearings Officer's decision described the
rezoned property as follows:
"The subject property is approximately 160 acres in size and very irregular in shape.
A significant portion of the property has been disturbed due to previous surface
mining and reclamation activities. The disturbed area consists of reclaimed extraction
pits and berms created from overburden removed from the extraction sites. The
undisturbed portions of the property have varying topography and a mixture of
native vegetation including scattered stands of pine and juniper trees, as well as
native brush and grasses, and pasture grasses seeded as part of the surface mine
reclamation. Part of the eastern border of the subject property is located in the
canyon of Tumalo Creek and includes steep slopes and rock outcrops. The record
indicates the subject property has 58.91 acres of irrigation water rights administered
byTID...
The record indicates some of these water rights currently are leased for in -stream
use. There is a small irrigation ditch that traverses the subject property within an
easement."
In 2008, the BOCC approved the plan amendment, zone change and goal exception.
2013. KCDG purchased the majority of the subject property in October of 2013. On
October 8, 2013, staff from the county's Community Development Department
("CDD") met with representatives of KCDG and their then -attorney Tia Lewis to discuss
development of the subject property with a residential cluster development. No
development proposal was submitted at that time.
2014. On March 18 and 19, 2014, CDD received three code violation complaints
alleging that rock crushing, construction of a lake with a boat dock and fuel tanks, and
use of a private road were occurring on the subject property without required land
use approval. These complaints were investigated by Deschutes County Code
Enforcement Technician Tim Grundeman. Mr. Grundeman concluded that no code
violations had occurred. KCDG applied for a temporary use permit to allow rock
crushing on the subject property in association with private road maintenance and
landscaping. On April 2, 2014, CDD issued a temporary use permit for such use (TU -
14 -8). On June 4, 2014, CDD received another code violation complaint related to
"unpermitted activities" on the property.
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Document No. 2018-595 Page 8
On June 13, 2014, CDD staff, Deschutes County Assistant Legal Counsel John Laherty,
representatives of TID, TID's attorney William Hopp, and TID's and KCDG's attorney
Elizabeth Dickson met to discuss the need and process for obtaining a Land Use
Compatibility Statement (LUCS) for TID's request to the Oregon Water Resources
Department ("WRD") for permission to transfer the place of use of TID's water storage
right from Upper Tumalo Reservoir to the subject property. On or about June 16,
2014, CDD Director Nick Lelack determined to treat any request for a LUCS submitted
by TID as a "land use action" and to process it according to the county's procedures
therefor.
On June 11, 2014, TID submitted to WRD an application (T-11833) to transfer the place
of use of a portion of TID's water storage right from Upper Tumalo Reservoir to the
two reservoirs on the subject property.
On June 17, 2014, KCDG submitted applications for a building permit (247-14-003315-
STR) and an electrical permit (247-14-003315-ELEC-01) for a boathouse and boat slip
on the southern reservoir. CDD staff advised KCDG that the county could not sign off
on the building or electrical permit while any LUCS request was pending. On June 19,
2014, CDD received a letter from Ken Rieck, TID Manager, explaining the need for the
transfer in place of use of its water storage right and TID's belief that the proposed
transfer is a use permitted outright in the RR -10 Zone.
On July 25, 2014, Deschutes County Assistant Legal Counsel John Laherty sent a letter
to KCDG Attorney Elizabeth Dickson stating in relevant part:
". . .[T]o the extent KC Development Group LLC has expended, or intends to
expend, resources to create reservoirs, install footings for a dock or
boathouse, or otherwise perform work on the subject property that does not
require County approval, it does so at its own risk and without any guarantee
that future County permits or approvals - including, without limitation, land
use approval for construction of a cluster development or recreational lake, or
building division approval for construction of a boat house or dock - will be
granted.
The County has encouraged KC Development Group LLC and its principals to
apply for necessary land use approvals first - before devoting significant
resources to improving the property - so as to avoid the risk of commencing
projects it will ultimately be unable to complete. Your client has chosen to
disregard this advice.
Please inform your client (again) that Deschutes County will review any future
land -use or building permit application on its own merits, and the County's
decision on such application will be governed solely by consideration of
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Document No. 2018-595 Page 9
appropriate criteria. Your client's decision to expend resources on
improvements prior to obtaining necessary County approval for his intended
development project will not be given undue weight or consideration in this
process."
On July 25, 2014, CDD staff and county legal counsel conducted a site visit to the
subject property at the request of neighboring property owners.
On August 4, 2014, TID submitted its LUCS request on a form provided by WRD. The
form stated TID intended to submit to WRD an application for a "water right transfer
- storage," and described the intended use of the water in relevant part as follows:
"This is an intra -district transfer in place of use of 108 a.f. [acre feet] of Tumalo Creek
Water. TID to TID (Storage water). The transfer of this storage water is necessary for
the operation and maintenance of our irrigation system, and allowed as an outright
use in the RR -10 zone. The current site was built in the 1920's and no longer serves
TID's needs. The new site is a significant upgrade that will enable TID to reduce
dependence on Tumalo Creek for natural flow, provide emergency water supplies for
the District and Emergency Services responders, and provide increased efficiency in
the operations and maintenance of the TID system overall."
Attached to the LUCS form was a two-page letter dated June 19, 2014 from Ken Rieck,
to Nick Lelack describing the reason for the LUCS request.
By a letter dated August 6, 2014, Deschutes County Building Official Dave Peterson
issued a stop work order to KCDG for work performed on the boathouse foundation
on the southern reservoir without a building permit. The previously submitted
building and electrical permit applications were withdrawn by KCDG.
On August 13, 2014, Mr. Lelack completed and issued the WRD LUCS form by checking
the box stating:
"Land uses to be served by the proposed water uses (including proposed
construction) are allowed outright or are not regulated by your comprehensive
plan. Cite applicable ordinance section(s):"
Mr. Lelack attached to the form a three-page "Notice of Decision" dated August 13,
2014. The decision cited Section 18.60.020(1) listing "operation, maintenance, and
piping of existing irrigation systems operated by an Irrigation District," and included
the following findings:
"According to information provided by Tumalo Irrigation District, TID 'has decided to
move its Regulation Pond storage to [the Klippel Mining Pit] a site upstream from our
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Document No. 2018-595 Page 10
current in -district storage at Tumalo Reservoir.' TID states that the existing Reservoir
'was designed and built in the 1920's and does not adequately serve TID's needs,' and
that the new site 'will be a significant upgrade to operations and maintenance.' The
Planning Director finds that transferring in -district storage from the Tumalo Reservoir
upstream to the Klippel Acres Mining Pit in order to improve the operations of TID's
existing irrigation system is a use permitted outright in this zone."
On August 22, 2014, opponents Thomas and Dorbina Bishop, Trustees for the Bishop
Family Trust (hereafter the "Bishops"), filed an appeal from the LUCS. The appeal was
referred to Hearings Officer Karen Green for hearing.
On September 16, 2014, CDD received a code violation complaint for construction of
a new road on the subject property. The complaint was again investigated by Tim
Grundeman who found no code violation. On September 22, 2014, CDD received a
code violation complaint regarding waterskiing occurring on the southern reservoir.
On September 25, 2014, TID filed with WRD a notice of intent to change the location
of a portion of its water right to the reservoirs on the subject property (T-11951).
On October 3, 2014, the Hearings Officer conducted a site visit to the subject property
and vicinity accompanied by Senior Planner Anthony Raguine. On October 7, 2014,
the Hearings Officer held a public hearing on the appeal. At that hearing, the Hearings
Officer disclosed personal observations and impressions from the site visit.
On October 7, 2014, Hearings Officer Green held a public hearing on the appeal.
On October 10, 2014, CDD issued a Notice of Violation to KCDG for operating a
"recreation -oriented facility requiring large acreage" without land use approval.
On December 15, 2014, the Hearings Officer issued a decision on the LUCS appeal,
holding in relevant part that:
"1. The [C]ounty incorrectly categorized TID's proposed use on the WRD
LUCS form as a use allowed without review.
2. The [C]ounty erred in issuing a LUCS decision finding TID's proposed
use was allowed without review.
3. The [C]ounty's LUCS decision is reversed and remanded for the CDD
Director to reissue the WRD LUCS form and the LUCS decision to categorize
TID's proposed use as one involving discretionary land use approval(s) that
have not yet been obtained - i.e., the conditional use of surface mining for
reservoirs in conjunction with operation and maintenance of irrigation
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Document No. 2018-595 Page 11
systems under _Section __18.60.030(W),__and/or a recreation -oriented facility
requiring large acreage under Section 18.60.030(G)."
Both TID and the Bishops appealed the Hearings Officer's decision to the BOCC).
2015. On January 7, 2015, by Order No. 2015-009, the BOCC accepted TID and the
Bishops' appeals of the Hearings Officer's LUCS decision and elected to consolidate
them into a single de novo proceeding. On January 29, 2015 the BOCC held a public
hearing on the appeals. On April 8, 2015, the BOCC issued its decision affirming the
Hearings Officer's decision. On April 24, 2015, Nick Lelack re -issued the WRD LUCS
form and checked the box stating:
"Land uses to be served by the proposed water uses (including proposed
construction) involve discretionary land use approvals as listed in the table
below. (Please see attached documentation of applicable land use approvals
which have already been obtained. Record of Action/land use decision and
accompanying findings are sufficient.) If approvals have been obtained but all
appeal period have not ended, check "Being pursued." (Bold emphasis in
original.)
The table on the LUCS form listed conditional use permits as required to establish a
recreation facility and for surface mining. The BOCC's and the Hearings Officer's
decisions were attached to the re -issued LUCS.
On April 8, 2015, the BOCC issued its decision affirming the Hearings Officer's
decision. On April 24, 2015, Nick Lelack re -issued the WRD LUCS form and indicating
that uses to be served by the proposed water uses (including proposed construction)
involve discretionary land use approvals. The table on the LUCS form listed required
conditional use permits to establish a recreation facility and for surface mining. The
BOCC's and the Hearings Officer's decisions were attached to the re -issued LUCS.
On April 29, 2015, WRD issued two orders concerning TID's request for permission to
transfer the place of use of part of its water right from Upper Tumalo Reservoir to the
reservoirs on the subject property. WRD denied TID's application (T-11833) for a
temporary transfer in place (Special Order Volume 95, Pages 1018-1025). It also
denied TID's request for approval of a permanent transfer in place (Special Order
Volume 95, Pages 1026-1032). The stated reason for WRD's denials was that land use
approval was required for the transfer and TID had not obtained it.
On April 29, 2015, KCDG and TID jointly applied for conditional use approval to make
lawful previous surface mining that created the two reservoirs on the property along
with a variance from the RR -10 Zone setbacks to allow the south reservoir to cross a
property line. The applicants also requested conditional use, site plan and landscape
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Document No. 2018-595 Page 12
management approval to establish a recreation facility requiring large acreage for
water-skiing.4
In May of 2015, KCDG, TID and the Bishops filed appeals with the Land Use Board of
Appeals ("LUBA") from the BOCC's LUCS decision, and from Nick Lelack's re -issuance
of the WRD LUCS form, stating additional land use review was required for the
reservoirs.
On May 14, 2015, a code violation complaint was filed alleging unpermitted
construction on the subject property including piping and concrete work. On May 15,
2015, TID's and KCDG's attorney Ken Katzaroff submitted an affidavit from Robert
Varco, TID's Field Supervisor, describing the nature and purpose of the construction
work. According to the affidavit, the construction was to replace an existing concrete
weir in order to improve TID's existing water delivery system. Mr. Varco stated TID
installs approximately 20 new or replacement weirs in its system each year. On May
18, 2015, Senior Planner Anthony Raguine and Code Enforcement Technician John
Griley met with Harris Kimble on the subject property to investigate the construction.
Based on the investigation and Mr. Varco's affidavit, the county determined this
construction work did not require building or electrical permits, and that the work
was allowed outright under Section 18.60.020(1) of the Deschutes County Code as the
"operation, maintenance, and piping of existing irrigation systems operated by an
Irrigation District." The code enforcement case was closed.
On September 9, 2015, LUBA issued its decision on TID's/KCDG's and the Bishops'
appeals from the county's LUCS decisions. Bishop v. Deschutes County, _ Or LUBA
(LUBA No. 2015-027, 2015-028, and 2015-030; September 9, 2015). TID's/KCDG's
appeals included motions to dismiss all appeals, and the Bishops' appeals included a
motion to transfer its appeals to the Deschutes County Circuit Court on the basis that
LUBA lacked jurisdiction to hear the appeals. LUBA held:
1. The BOCC correctly found both TID/KCDG and the Planning Director
mischaracterized the nature of the use for which the LUCS was requested;
2. The Planning Director did not err in re -issuing the LUCS stating land use
approval for the reservoirs was required;
3. LUBA lacked jurisdiction to hear the appeals because they are excluded from
LUBA jurisdiction under ORS 197.015(10)(b)(H)(iii);"
4 Land use file numbers 247 -15 -000226 -CU, 227 -CU, 228 -LM, 383 -MA, 384 -SP, 385-V.
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Document No. 2018-595 Page 13
The Bishops' LUBA appeals were transferred to the Deschutes County Circuit
Court based on the Bishops' motion for transfer; and
5. TID's/KCDG's appeals were dismissed because they did not timely file a motion
for transfer to the circuit court.
2016. On January 21, 2016, a Hearings Officer denied the applications for surface
mining and the recreation facility. The Hearings Officer's decision was subsequently
appealed to the BOCC, which declined review (Board Order 2016-010).
The Bishops appealed the Hearings Officer's decision to LUBA (LUBA 2016-023).
KCDG and TID filed a Joint Motion to Dismiss. Subsequently, the Bishops filed a
Motion to Withdraw the Notice of Intent to Appeal and Dismiss Appeal. Based on the
Bishops' request, LUBA dismissed the appeal.
In June of 2016, TID and KCDG informed the County that for the time being they
suspended an agreement between TID and KCDG allowing use of the reservoirs for
irrigation district purposes. The agreement between TID and KCDG, however, was
recorded against the KCDG property and could be reinstated. At that time, KCDG also
agreed to cease motorized boating activity. Based on these representations, the
County closed the code enforcement case on the property.
On November 30, 2016, KCDG applied for a LUCS for "one time fill plus 44 feet per
year in mitigation water to be stored in 2 ponds by [KCDG] for landscape aesthetics,
emergency fire protection, and temporary pass through irrigation water for personal
irrigation use by [KCDG] ('bulge in system')."
On December 14, 2016, the County issued the LUCS checking the box marked "Land
uses to be served by the proposed water uses (including proposed construction) are
allowed outright or are not regulated by your comprehensive plan." Further, the
County included the following statement on the LUCS, "The Deschutes County Zoning
Code does not regulate the use of water to be stored in 2 ponds for aesthetic
landscaping, emergency fire protection, or pass-through irrigation for the property
owner."
On December 22, 2016, the Bishops attempted to file a local appeal of LUCS 247 -16-
000748 -PS. On December 30, 2016, the County informed the Bishops that the LUCS
decision was a development action which is only appealable by the applicant, his or
her representatives, and his or her witnesses, pursuant to DCC 22.32.050.
2016-2017. In late 2016 and the first part of 2017, KCDG sought to obtain approval of
new LUCs statements for WRD water permit applications listing the proposed uses as
permitted outright. These efforts were unsuccessful and abandoned by KCDG.
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Document No. 2018-595 Page 14
2017. On January 4, 2017, in response to the County not accepting the Bishops
request for appeal of the LUCS, the Bishops filed a Notice of Intent to Appeal (LUBA
2017-002). On the same day, in response to the County issuing the LUCS, the Bishops
filed a precautionary Notice of Intent to Appeal (LUBA 2017-003). LUBA consolidated
both appeals.
In response to the LUBA appeals, the County and KCDG jointly filed a Motion to
Dismiss for Lack of Jurisdiction. On March 21, 2017, LUBA denied the motion to
dismiss both appeals.
On January 10, 2017, KCDG applied for a LUCS for "Limited license to provide
temporary authorization while awaiting Department approval of Groundwater permit
application G-18422, authorizing storage of water in two ponds for fire protection,
aesthetic and pass through irrigation water."
On January 12, 2017, the Bishops attempted to submit materials into the record for
LUCS 247 -17 -000016 -PS. On January 18, 2017, Central Oregon Landwatch also
attempted to submit materials into the record for this LUCS. Via email dated January
31, 2017, the County informed both the Bishops and Central Oregon LandWatch that
the County rejected both submissions and would not consider the materials in
making a decision on the LUCS.
On February 7, 2017, the County issued the LUCS checking the box marked "Land uses
to be served by the proposed water uses (including proposed construction) are
allowed outright or are not regulated by your comprehensive plan." Further, the
County included the following statement on the LUCS, "The Deschutes County Zoning
Code does not regulate the use of water to be stored in 2 ponds for aesthetic
landscaping, emergency fire protection, or pass-through irrigation for the property
owner."
On February 16, 2017, the Bishops attempted to file a local appeal of LUCS 247 -17-
000016 -PS. On February 17, 2017, the county informed the Bishops that the LUCS
decision was a development action which is only appealable by the applicant, his or
her representatives, and his or her witnesses, pursuant to DCC 22.32.050(K).
On July 28, 2017, KCDG applied for a Limited Water Use License LUCS5 for "[o]ne time
fill plus 44 acre-feet per year to be stored in 2 ponds for aesthetics, emergency fire
protection, temporary pass-through for private irrigation ('bulge in the system') and
for recreation purposes." On the same day, KCDG applied for a separate Permit to
Use or Store Water LUCS also for "[o]ne time fill plus 44 acre-feet per year to be stored
5 Land use file number 247 -17 -000623 -PS.
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Document No. 2018-595 Page 15
J•
in 2 ponds for aesthetics, emergency fire protection, temporary pass-through for
private irrigation ('bulge in the system') and for recreation purposes."
On August 17, 2017, the county signed both LUCS forms by checking the box "[I]and
uses to be served by the proposed water uses (including proposed construction)
involve discretionary land -use approvals as listed in the table below." In the LUCS
table, the county indicated the following land use approvals were being pursued by
KCDG: comprehensive plan amendment, tentative plat, conditional use, site plan, lot
line adjustments, surface mining impact area review and landscape management
review. This LUCS decision was not appealed and is now a final decision.
PROCEDURAL HISTORY AND REVIEW PERIOD: The subject applications were
submitted on July 28, 2017. The applications were deemed complete on August 25,
2017.
The applications were referred to an initial hearing on October 23, 2017 before a
Hearings Officer ("HO"). The HO issued her decision on February 7, 2018. Separate
appeals of the HO decision were filed by the applicant, the Bishops, and Central
Oregon LandWatch. The BOCC accepted review of the appeals and conducted a
subsequent public hearing on April 12, 2018. On May 2, 2018, during the post -hearing
written record period, the Bishops submitted an objection to the record, arguing that
the applicants submitted "new evidence" during the rebuttal period. On May 3, 2018,
the County suspended all time limits and deadlines during the written record period
to consider the record objection. On May 16, 2018, the BOCC issued Board Order
2018-037 denying the Bishops' request to reject new evidence and establishing a new
deadline for the applicants' submittal of final legal arguments.
Deschutes County provided the Department of Land Conservation and Development
("DLCD") with notice of the proposed post -acknowledgment plan amendment
("PAPA") prior to the initial hearing. Although , the notice was received by DLCD on
October 18, 2017, less than 20 days prior to the hearing, the Hearings Officer post -
hearing written record period afforded DLCD more than 20 days to submit
comments. To date, no comments have been received by DLCD.
The applicant tolled the running of the 150 -day clock until August 24, 2018. Pursuant
to DCC 22.20.040(D)(1) and state law, plan amendments are exempt from the 150 -day
timeline.
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Document No. 2018-595 Page 16
III. FINDINGS:
OREGON REVISED STATUTES, CHAPTER 92, SUBDIVISIONS AND PARTITIONS
92.010 Definitions for ORS 92.010 to 92.192. As used in ORS 92.010 to 92.192, unless the
context requires otherwise:
(11) "Property line" means the division line between two units of land.
(12) "Property line adjustment" means a relocation or elimination of all or a portion
of the common property line between abutting properties that does not create an
additional lot or parcel.
92.192 Property line adjustment; zoning ordinances; size of unit of land.
(2) Except as provided in this section, a lawfully established unit of land that is
reduced in size by a property line adjustment approved by a city or county must
comply with applicable zoning ordinances after the adjustment.
(3) Subject to subsection (4)6 of this section, for land located entirely outside the
corporate limits of a city, a county may approve a property line adjustment in which:
(a) One or both of the abutting lawfully established units of land are smaller
than the minimum lot or parcel size for the applicable zone before the
property line adjustment and, after the adjustment, one is as large as or
larger than the minimum lot or parcel size for the applicable zone; or
(b) Both abutting lawfully established units of land are smaller than the
minimum lot or parcel size for the applicable zone before and after the
property line adjustment.
FINDING: The applicant proposes eight property line adjustments to be completed before
the PUD subdivision may be made. The applicant applied for all eight, but subsequently
withdrew them due to a LUBA and subsequent court of appeals decisions in Bowerman v.
Lane County, 287 Or App 383, 403 P3d 512 (2017), modified on recons, 291 Or App 651 (2018).
The applicant then submitted the first of the eight adjustments. A question has been raised
as to whether or not the County could process the PUD application in Tight of the property
line adjustments not being completed. However, the BOCC finds that the question of
whether the ROF and PUD applications can be processed, despite the fact that the requisite
property line adjustments have yet to be completed, is answered in Bollam v. Clackamas
County, _Or LUBA_ (LUBA No 2006-110, Oct 27, 2006). In that case, a Clackamas County
Hearings Officer approved a subdivision as a PUD, but denied the associated property line
adjustment upon which the subdivision was reliant. While denying the property line
adjustment, the Hearings Officer found that it was feasible for the property line adjustment
6 Subsection (4) of ORS 92.192 applies to farm and forest zoned lands and is, therefore, excluded from
applicable criteria in this decision.
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to be approved in a separate decision under different approval criteria. Further, the
Hearings Officer conditioned approval of the subdivision on completion of an approved
property line adjustment. On appeal, LUBA determined that the Hearings Officer did not err
in finding it feasible for the necessary property line adjustment to be approved and
conditioning approval of the subdivision.
Similarly here, the BOCC finds it is feasible for the eight property line adjustments to be
approved under separate decision.
The Oregon Court of Appeals recently determined that sequential property line adjustments
are allowed. See Bowerman, 291 Or App at 651. The BOCC imposes a condition of approval
for the PUD that the property line adjustments shall be completed consistent with that
decision.
TITLE 22, DEVELOPMENT PROCEDURES ORDINANCE
A number of comments were received arguing that the County must deny or refuse to
process the current applications due to the provisions of DCC 22.20.015. This is not,
however, a correct reading of the code. The purpose of this provision is to achieve
compliance with the code, not to deny applications as a punishment for code violators. If a
violation exists, as defined by the code, the County may approve the application if approval
will address or remedy the violation.
The Bishops and several other parties have argued that the subject property has existing
code violations. The BOCC disagrees. A violation must exist before the other provisions of
DCC 22.20.015 are operative. A violation, as the term is defined by DCC 22.20.015 (C), exists
only if a prior decision or the review process of the current application determines that a
violation exists or if the applicant has acknowledged a violation in a signed voluntary
compliance agreement. In this case, no prior decision has determined that a violation exists
and no finding of violation has been made in the review of the pending land use applications.
Although DCC 22.20.015 (C) authorizes the BOCC to make a finding of violation as a part of
this review, it does not require the BOCC to do so.
Furthermore, the BOCC finds that no existing code violations are present on the subject
property. The BOCC finds it reasonable to rely on planning and code enforcement staff in
making such a finding. An alleged violation is not sufficient to bar the review or approval of
an application even if there is merit to the allegation. It is not the intent of the code to
prevent a landowner from being able to apply for permitted uses on their property, if they
also address County -determined violations. The code is intended to incentivize owners to
resolve actual code violations as a condition of approving additional uses.
Bishops have argued that the stockpiling of crushed material on the subject property is a
code violation. The BOCC disagrees. The stockpiles are allowed by temporary use permit,
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TU -14-8. The stockpiling of material may occur as a result of that rock crushing authorization
as long as such material is used primarily on site or is removed within 60 days of the project
being completed. The project has yet to be completed due to associated legal challenges.
As this decision explains further below, such material will be required to be used on site or
removed as a condition of approval for the final plat. As detailed below, the BOCC also
specifically rejects Bishops' argument that de minimus use of crushed material on adjacent
properties violates TU -14-8 or DCC.
In the case of the applicant and subject property, no "violation," as defined by the code has
been found to exist and, therefore, the current applications may be processed and may
approved. The following findings support this conclusion:
A. Chapter 22.20, Review of Land Use Applications
1. Section 22.20.015. Code Enforcement and Land Use.
A. Except as described in (D) below, if any property is in violation of
applicable land use regulations , and/or the conditions of approval of
any previous land use decisions or building permits previously issued
by the County, the County shall not:
1. Approve any application for land use development;
2. Make any other land use decision, including land divisions
and/or property line adjustments;
3. Issue a building permit.
FINDING: County code enforcement staff has confirmed that no building permit or code
violations currently exist on the subject property. Prior code complaint matters have been
closed.
The Bishops argued that prior County decisions have determined that the subject property
is in violation of county land use regulations. The 2014 LUCs decisions found that conditional
use land use approvals would be needed in order for the reservoirs to be used for water
skiing or irrigation district reservoir use but they did not find that the excavation of the
reservoirs was unlawful.
Water skiing and irrigation district water storage uses were discontinued in 2016. The statute
of limitations for violations of the county's land use code, also, is six months. DCC 1.16.030
(adopts ORS 153.030 by reference), ORS 153.030, ORS 131.125. All code violations alleged
by opponents occurred well over six months ago and KCDG, LLC is no longer subject to
punishment for the alleged violations.
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The Bishops recently alleged that the KCDG, LLC property is in violation of the conditions of
approval of a land use decision, TU -14-8. TU -14-8 authorized crushing of materials excavated
from the South Reservoir. TU -14-8 had six conditions of approval. They are outlined below:
• Crushing shall be completed within 30 days of approval and will take place Monday
through Friday, 7:00 am to 5:00 pm, excluding legal holidays.
• The volume of excavated material shall not exceed the amount necessary to complete
maintenance of roads and landscaping.
• No off-site material shall be brought on site for crushing.
• Rock crushing equipment shall be removed within 30 days of completing the
crushing.
• Excavated and crushed material not used for on-site road maintenance or
landscaping shall be removed from the site within 60 days of completing the project.
• Water shall be available for dust control.
The Bishops argued that KCDG is in violation of the conditions of approval of this permit
because the stockpiled material was not removed within 30 days and the material was
applied on KCDG, LLC properties not listed on the permit. The conditions of approval for TU -
14 -8 do not, however, require the removal of crushed rock within 30 days of the completion
of crushing. They required the removal of the rock crushing equipment within 30 days.
The conditions also do not limit use of crushed material on one specific lot, as Bishops
suggest. It only requires that no off-site material be brought on site for crushing. The
conditions also do not require removal of the excavated and crushed material until 60 days
after completing the project. The project is the construction of the reservoir and on-site
roads. This project is not yet complete, so removal is not yet required. Applicants continue
to use stockpiled material for road maintenance and landscaping. This includes using the
material, upon approval of the PUD, to improve existing road systems to County road
standards.
The Bishops also argued that a County Hearings Officer made a determination that the
storage of materials on a rural residential property was a violation of the county code and
that this determination must be followed by the Board in this case. This is a legally erroneous
argument as the BOCC is not bound by decisions issued by its hearings officers and the facts
in that case were significantly different.
To ensure the stockpiled material is removed or used on-site pursuant to TU -14-8, the
County has imposed a condition of approval in the ROF/PUD Decision that all of the material
be used for onsite for road or landscaping purposes prior to filing of a final plat of the Pura
Vida subdivision proposed by Tanager. This condition will serve the dual purpose of
correcting any violation of the permit, if one is ultimately found to exist. This has also been
made a condition of approval of this surface mining and plan amendment decision in the
event the subdivision never receives final plat approval.
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C A violation means the property has been determined to not be in
compliance either through a prior decision by the County or other
tribunal, or through the review process of the current application, or
through an acknowledgement by the alleged violator in a signed
voluntary compliance agreement VCA").
FINDING: No prior decision of the County has determined that the subject property is in
violation of the County code and no VCA has been signed by KCDG, the property owner and
alleged violator. No member of County staff, its hearings officer or the BOCC has made a
determination of noncompliance through the review process of the current application.
The Bishops argue that the prior denial of conditional use permits for surface mining in
conjunction with TID and for operation of a recreation oriented facility for water skiing on
the South Reservoir determined that KCDG was in violation of the County code. This is
incorrect. No such determination was made in the decision of denial. The County simply
determined that the property did not qualify for approval of the requested uses based on
the submitted proposal and then applicable law.
D. A permit or other approval, including building permit applications,
may be authorized if:•
1. It results in the property coming into full compliance with all
applicable provisions of the federal, state, or local laws, and
Deschutes County Code, including sequencing of permits or
other approvals as part of a voluntary compliance agreement;
FINDING: Should any subsequent hearings body determine a code violation exists on the
subject property for conditions of the subject property currently existing, any violation will
be cured by approval of the land use applications. Assuming that the storage of rock is a
code violation, the rock can be required to be used in landscaping of the property or
removed within a given period of time.
B. Chapter 22.28, Land Use Decisions
1. Section 22.28.040. Reapplication Limited.
A. If a specific application is denied on its merits, reapplication for
substantially the same proposal may be made at any time after the
date of the final decision denying the initial application.
FINDING: The purpose of the current applications is to obtain after -the -fact approval for
excavation and grading activities creating two reservoirs and allowing TID to store water in
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those two reservoirs. As previously noted, in 2017 Tanager also submitted separate land use
applications seeking approval of the ROF and PUD, addressed in the ROF/PUD Decision. The
Bishops argued that they prevailed in challenging similar applications filed in 2015(the "2015
Land Use Applications"), and that KCDG and Tanager, therefore, should not "get another bite
at the apple."' The Deschutes County Code, DCC 22.28.040, however, grants KCDG the right
to refile the denied applications and to obtain new decisions on the merits of the
applications. It says "[i]f a specific application is denied on its merits, reapplication for
substantially the same proposal may be made at any time after the date of the final decision
denying the initial application."
Further, the 2015 Land Use Applications were not identical to the current applications. The
2015 Land Use Applications sought approval of a conditional use for surface mining for
reservoirs, a conditional use for a recreation facility and a site plan for a recreation facility.
The applicants at that time did not seek approval of a planned unit development or of a plan
amendment to add the subject property to the non-significant mineral and aggregate
inventory; two of the current applications filed by Tanager and KCDG.
Last, the Hearings Officer analyzed the Bishops argument as one based on the legal theories
of issue and claim preclusion. The Hearings Officer found these theories barred
reconsideration of most of the issues presented in the current land use applications. The
BOCC finds to the contrary. Generally, claim preclusion does not apply in local land use
proceedings. Lawrence v. Clackamas County, 40 Or LUBA 507, 518 (2001). The Oregon Court
of Appeals has held that claim preclusion does not apply where a local code allows an
applicant to refile a land use application. Lawrence v. Clackamas County, 180 Or App 495, 502-
03, 43 P3d 1192, rev den 334 Or 327, 52 P3d 435 (2002).
Issue preclusion, according to the Oregon Court of Appeals, applies only if the following five
conditions are met:
"(1) The issue in the two proceedings must be identical. (2) The issue must have
been actually litigated and 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. (4) The party sought to be precluded was a party or
was in privity with a party in the prior proceeding. (5) The prior proceeding was
the type of proceeding to which a court will give preclusive effect. Nelson, 318
Ore. at 104 (citing cases)." Lawrence, 180 Or App at 503-504.
' Counsel for the Bishops also argued that the subject applications should not be reviewed until the
Declaratory Action in Bishop v. KC Development Group, LLC et al, Deschutes County Circuit Court Case
No. 17CV21383, and its related Motion for Preliminary Injunction are decided. There is no controlling
provision in the zoning code or Procedures Ordinance that would prevent the County from processing
any land use applications due to a pending circuit court case. This case was dismissed by the circuit
court and has been appealed by the Bishops.
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In this case, the issues in the 2015 Land Use Applications are similar but are not identical to
the current applications. KCDG and Tanager responded to the denial of the 2015 Land Use
Applications by proposing a wildlife management plan that was recommended in the denial
of the 2015 applications. KCDG and Tanager also propose a landscaping plan for the
reservoirs which will include revegetating the land on the banks of the South Reservoir to
address concerns that, in part, resulted in denial of the 2015 Land Use Applications.
Two of the current applications are new proposals not considered in 2015, the planned unit
development and plan amendment. The issues presented by the new applications were not
considered, actually litigated, nor were they essential to a final decision on the merits in the
prior proceedings. As discussed in the separate ROF/PUD Decisions, the PUD is proposed
adjacent to the reservoirs but does not include either of the reservoirs considered in the
2015 Land Use Applications. The applicable approval criteria, with the exception of general
conditional use approval criteria, are different in these new applications. It, therefore, is
inappropriate to apply issue preclusion to any issue presented in either the PUD or plan
amendment applications.
The PUD application, also, proposes residential lots around parts of the South Pond. When
developed, homes and landscaping on the PUD residential lots will buffer neighboring
properties from noise associated with the recreational use of the South Reservoir. This is a
changed condition not present in 2015 and not considered in the decision denying approval
of the recreational facility.
As noted, DCC 22.28.040 contemplates that an applicant may refile denied land use
applications. DCC 22.28.040 is an acknowledged land use regulation upon which the
applicants in this matter were entitled to rely. The intent of the provision is to encourage
applicants to accept decisions of denial at the early stages of the land use review process
rather than appeal decisions of denial. This encourages applicants to revise and improve
land use applications to address issues that resulted in denial rather than to challenge issues
related to the denial by filing appeals with the BOCC, LUBA and appellate courts.
The BOCC notes that this decision is intended to, and in fact does, supersede and replace all
other decisions, including denials, of previous land use applications on the subject property.
This decision expressly supersedes and replaces the permit denials issued by Hearings
Officer Karen Green dated January 21, 2016, and often referred to herein as "Ski Lake 1."
MINING IN THE RR -10 ZONE
A. Purpose of Reservoir Construction
In 2015, the BOCC determined in its review of a LUCS approval by County staff that DCC
18.60.030(W) necessitated, prior to TID storing water in KCDG's reservoirs, a conditional use
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Document No. 2018-595 Page 23
permit approval for surface mining in conjunction with an irrigation district to retroactively
permit the reservoirs. Although discussed in the separate ROF/PUD Decision, the BOCC also
determined that DCC 18.60.030(G) necessitated a conditional use permit approval for a
recreation facility requiring large acreage prior to the South Reservoir being used for water
skiing by KCDG.
In previous decisions, the BOCC adopted findings written by a County Hearings Officer
stating "the excavation of the [reservoirs] was for the primary purpose of 'other on-site
construction' - i.e., the conversion of the former Klippel mining pits to new reservoirs" as well
as for rock crushing associated with the maintenance of private roadways and landscaping.
See, p. 19, 247 -14 -000238 -PS, 247-14-000274-A Green Decision.
In this decision, the Board again finds that the reservoirs were created by excavation and
grading work that involved the excavation and crushing of sand, gravel, rock and other
similar materials such as soil. The work was completed by a contractor of KCDG, the owner
of the property. The primary purpose of the work was the construction of the ponds to
reshape a large depression in the land created by surface mining to create reservoirs and to
extract rock for crushing for use in the maintenance of access roads on KCDG property. The
purpose of the reservoirs was to store irrigation water that is applied to KCDG's property and
to use the ponds for recreational purposes, including water skiing on the South Reservoir.
KCDG obtained County land use approval via TU -14-8 to crush the rock it was extracting to
build the South Reservoir and to use the rock in building on-site roads and in landscaping
the property.
B. Alternative Arguments
As the Board understands the applications, KCDG presented two alternative but related legal
arguments supporting the after -the -fact permitting of the reservoirs' construction.
First, because the reservoirs are intended to be used for recreation requiring an ROF land
use permit, such a permit reasonably allows for the on-site construction of the reservoirs.
This "on-site construction" exception is codified as part of the surface mining definition in
DCC 18.04.030. In this case, excavation of the reservoirs only qualifies for the on-site
construction exception if the primary purpose of that work was to build the reservoirs and/or
to use any excavated materials on-site. The "on-site construction" exception reasonably
implies that surface -mining, as defined in DCC 18.04.030, instead concerns the use of the
mined materials off-site.
This first argument is discussed in more detail in the ROF/PUD Decision, and is only minimally
noted here to provide context. In that ROF/PUD Decision, the Board determined that the
primary purpose of the excavation was to build the recreation facility reservoirs with the
excavated materials used mostly on-site. Thereby, those activities fell within the "on-site
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construction" exception to the "surface -mining" definition in DCC 18.04.030, and are
permitted after -the -fact implicitly by the ROF/PUD Decision.
KCDG's second argument corresponds with their requested approval of TID's use of the
reservoirs under DCC 18.60.030(W) that conditionally allows the following:
"Surface mining of mineral and aggregate resources in conjunction with the
operation and maintenance of irrigation systems operated by an Irrigation
District, including the excavation and mining for facilities, ponds, reservoirs,
and the off-site use, storage and sale of excavated material."
Although KDCG's first argument is primarily addressed in the ROF/PUD Decision, the
interpretation of the above -quoted code provision is central to this decision, with the critical
inquiry being if a proposed use must first meet the definition of "surface mining" in DCC
18.04.030 for the above -quoted Subsection (W) to apply. Stated simply, does the Board's
determination as part of the ROF/PUD Decision that the excavation necessary to construct
the two reservoirs fell within the "on-site construction" exception render Subsection (W)
inapplicable?
C. Interpretation of DCC 18.60.030(W)
The Board turns to its own legislative history to determine the appropriate interpretation
and application of DCC 18.60.030(W). Subsection (W) was added to the RR -10 and other
zones by Ordinance No. 2001-039. The purpose of that law, as stated by the staff report for
Ordinance No. 2001-039, was twofold: first, to "allow Irrigation Districts to operate, maintain,
and pipe existing irrigation systems without a land use permit," and second, to "conduct
surface mining activities, including the off-site use and sale of excavated material as a
Conditional Use." Prior to adoption of Ordinance No. 2001-039, the County's code did not
allow irrigation districts to build new reservoirs on any property in the RR -10 Zone; even if
constructed on district property. Adding the reservoir use to the zone was necessary to allow
the construction of new irrigation district reservoirs not associated with another permitted
or conditional use in the RR -10 Zone.
The intention behind Ordinance No. 2001-039 was clearly to benefit irrigation districts.
Interpreting that Ordinance now to preclude irrigation districts from applying for conditional
use permits solely because they intend to use materials excavated from a newly constructed
reservoir on-site as opposed to selling such material off-site is disingenuous. Likewise, the
contrary argument that no land use permit is required so long as excavated materials from
a new reservoir are used on-site is equally disingenuous. If that was the County's intention
when originally adopting Ordinance No. 2001-039, then the Ordinance would have expanded
the list of activities permitted without a land use permit beyond "operating, maintain, and
piping existing irrigation systems." The County Commissioners in 2001 declined to expand
the list of activities that do not require a land use permit to include the excavation of new
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reservoirs, and this Board in turn likewise declines such an expansive interpretation. Clearly,
Ordinance No. 2001-039 was intended to require conditional permits for all new mining and
excavation activities conducted in conjunction with an irrigation district.
Our interpretation of Subsection (W) of DCC 18.60.030 is further supported by an analysis of
the plain language of the code provision, which again states the following (emphasis added):
"Surface mining of mineral and aggregate resources in conjunction with the
operation and maintenance of irrigation systems operated by an Irrigation
District, including the excavation and mining for facilities, ponds, reservoirs,
and the off-site use, storage and sale of excavated material."
The phrase "including the excavation ... for facilities, ponds, [and] reservoirs" again
demonstrates an intent to apply Subsection (W) expansively. The current fact pattern
presents that it is possible to excavate reservoirs in a manner that does not meet the
definition of "surface mining" in DCC 18.04.030. Any interpretation that narrowly applies
Subsection (W) to only those activities that meet the definition of "surface mining" renders
the phrase "including the excavation ... for facilities, ponds [and] reservoirs" meaningless,
and further precludes irrigation districts the opportunity to apply for conditional use permits
just because excavated materials are prudently used on-site, perhaps unwittingly thereby
invoking the "on-site construction" exception. For the foregoing reasons, the Board
interprets Subsection (W) of DCC 18.04.030 to include both those activities that meet the
definition of "surface mining" in DCC 18.040.030, as well as other excavation activities that
would otherwise fall into the "on-site construction" exception so long as those activities are
creating "facilities, ponds, [and] reservoirs" "in conjunction with the operation and
maintenance of irrigation systems operated by an Irrigation District."
D. Approval of Reservoir Excavation in Conjunction with TID's Irrigation System
KCDG is pursuing approval from WRD of a groundwater permit to allow it to store water in
the reservoirs if the County does not approve TID's use of the reservoirs on the KCDG
property. KCDG would like to allow TID to store water in its reservoirs and KCDG properties
have irrigation water rights and a legal right to the delivery of irrigation water from TID. TID
has a number of legal avenues by which to obtain permission to store water in the KCDG
reservoirs including transferring supplemental water rights from Crescent Lake. TID has
asked Deschutes County to approve KCDG's application in order to allow them to use the
KCDG reservoirs for regulation. TID also currently delivers irrigation water to KCDG, using
the reservoir system as a conveyance system.
Predicated on the preceding interpretation of DCC 18.60.030(W), this approval authorizes
TID to store water in the reservoirs. It should be noted, however, that if TID does not move
forward with this use, the approval of the ROF may proceed under the authority of the
ROF/PUD Decision because the reservoirs are a necessary and approved element of that use.
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The appealed hearings officer's decision found that the mining work that created the
reservoirs from reclaimed surface mines was performed solely by KCDG in March 2014 and,
therefore, may not be approved as surface mining in conjunction with the operation of
irrigation systems operated by the district, including the construction of reservoirs. The
BOCC disagrees. As noted above, the BOCC adheres to its previous finding that the
excavation to create the reservoirs was undertaken in conjunction with an irrigation district.
DCC 18.60.030(W) does not require that a new reservoir built in conjunction with an irrigation
district be constructed, planned by or designed by that irrigation district. All that is required
is that the reservoir and related construction be "in conjunction with the operation and
maintenance of irrigation systems operated by an irrigation district." In this case, the
property owner wishes to obtain approval to allow TID to store water in its reservoirs and
pump it back to the irrigation canal that runs along the west side of the KCDG property - as
a secondary use of its reservoir. This shared use offers potential benefits to patrons of the
district as it will allow the district to even out its delivery of water over time. If and when TID
proceeds with this use, the reservoir will be operated as a part of TID's irrigation system
pursuant to the TID-KCDG contract or other future agreement.
E. Bishops' Preemption Argument
As noted in the ROF/PUD Decision, the BOCC finds the County's definition of surface mining
is not preempted by the definition of surface mining provided by ORS 517.750(16). The BOCC
adheres to those findings here.
POST-ACKNOLEDGEMENT PLAN AMENDMENT (PAPA)
A. Interpretation of DCC 18.128.280
As a preliminary matter, it must be noted that the Hearings Officer and the BOCC previously
found in Ski Lake I that the excavation to construct the reservoirs was surface mining in
conjunction with an irrigation district. DCC 18.128.280 provides specific approval criteria for
surface mining of a non -Goal 5 resources. Subsection (D)(2) further says that a permit for
mining aggregate shall be issued only for a site included on the County's non-significant
mineral and aggregate resource list.
As detailed above, the Board in this decision instead determined that DCC 18.06.030(W)
applies more broadly to excavation activities that could otherwise fall into the "on-site
construction" exception so long as those activities are creating "facilities, ponds, [and]
reservoirs" "in conjunction with the operation and maintenance of irrigation systems
operated by an Irrigation District." Meeting the definition of "surface mining" in DCC
18.04.030 is not a condition precedent to a proposed use falling within DCC 18.60.030(W).
Following from that interpretation, the Board likewise finds that proposed excavation in
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conjunction with an irrigation district governed by DCC 18.60.030(W) likewise triggers the
applicability of DCC 18.128.280, even if that excavation does not meet the more narrow
definition of "surface mining." Thereby, the Board interprets the term "surface mining" as
used in DCC 18.128.280 to include both those uses that meet the definition in DCC 18.04.030
as well as those uses that fall within DCC 18.60.030(W). For this reason, the applicant applied
for a PAPA to include the subject property on Deschutes County's "Non -Significant Mining
Mineral and Aggregate Inventory."
B. History re Non -Significant Inventory
The County's non-significant mineral and aggregate resources inventory was developed to
allow the County to authorize surfacing mining, including the use and sale of excavated
material off-site, by irrigation districts on properties that do not meet the standards of
significance set by the Goal 5 rules (OAR 660-023). This fact is explained in the Staff Report
adopted as a part of Deschutes County Ordinance 2001-39.
After Deschutes County adopted its non-significant resources inventory, the Oregon Court
of Appeals determined that mining of a site listed on a non-significant resources inventory
was not allowed in the EFU zone due to the provisions of ORS 215.298(2) that authorize the
mining of significant mineral and aggregate sites in EFU zoning districts under conditions
that protect other EFU land for agricultural use. Beaver State Sand and Gravel, Inc. v. Douglas
County, 187 Or App 241 (2003). The Beaver State case does not, however, apply to any zone
other than the EFU zones because it is based on ORS Chapter 215.298(2) that applies only to
EFU land. Lands in other zoning districts, including the RR -10 zone, need not be listed on a
Goal 5 significant resource inventory to be mined if the use is otherwise allowed by the
applicable zoning district.
C. Compliance with Statewide Planning Goals
FINDING: The proposed amendment does not violate any Statewide Planning Goal, as
demonstrated by the BOCC's findings below.
Goal 1 - Citizen Involvement. A public hearing on the PAPA was held on October 23, 2017.
DLCD was noticed of such hearing on October 18, 2017. DLCD has not provided comment
to date. The open record and rebuttal periods for all citizens constituted a total of 4 weeks,
and were in compliance with the County's development procedures at Title 22 of the
Deschutes County Code. A decision was issued by the County's hearings officer and
appealed to the BOCC. The BOCC conducted a de novo land use hearing and accepted pre -
hearing and post -hearing evidence from appellants and other interested citizens. This
process allowed extensive public input and was conducted in compliance with the County's
land use procedures ordinance. Goal 1, therefore, is satisfied.
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Goal 2 - Land Use Planning. The purpose of Goal 2 is to establish a process and adequate
factual basis for land use decision making. The process established for the review of land
use applications and plan amendments set out in the County code is not being changed by
this land use application. The addition of the RR -10 -zoned subject property to an existing,
acknowledged plan inventory of non-significant resources, Table 5.8.2, does not render the
plan inconsistent with any plan provision or the intent of the plan as documented by this
decision. Additionally, the County has reviewed the plan and its policies and finds that the
amendment does not violate any plan policy. Surface mining is one of the uses that are
intended to occur on rural lands, as the term is defined by Section 5.2 of the plan.
Goal 2 anticipates that comprehensive plans will be amended. The change made here is
based on information that provides a factual basis for the change after public notice was
provided and two hearings were conducted by the County. The inclusion of the subject
property on the inventory ensure that the reservoirs maybe used by TID for water storage. A
public need and justification for the change exists because the change will allow the KCDG
reservoirs to improve the delivery of irrigation water to patrons of TID.
Goal 3 - Agricultural Lands. The adoption of the subject property to the non-significant Goal
5 inventory list does not conflict with any agricultural lands. The subject property is a
residential exception area; not agricultural land. No conflicts to farming practices have been
identified by adding the subject property to the non-significant Goal 5 inventory list.
Testimony has been submitted by TID that farming practices on agricultural lands will be
improved as a result of approval of the amendment. This Goal is satisfied.
Goal 4 - Forest Lands. The subject property is not forest land and, therefore, is not subject
to compliance with Goal 4. Additionally, the use proposed is separated from forest land by
single-family homes on land zoned RR -10 and Goal 5 surface mining operations are occurring
in closer proximity to forest lands such that the use authorized will not have an impact on
Goal 4 -protected land.
Goal 5 - Natural Resources, Scenic and Historic Areas, and Open Spaces. Application of Goal
5 to PAPAs is governed by OAR 660-023-0250. Per this rule, Goal 5 is only implicated in
limited circumstances. First, if the PAPA creates or amends a list in order to protect a
significant Goal 5 resource, or to comply with requirements of Goal 5; none of which apply
in this instance. Second, Goal 5 applies if the PAPA allows a new use that would conflict with
a particular Goal 5 resource. The only protected Goal 5 resource on the subject property is
the Tumalo Winter Deer Range. The addition of the property to the list is a prerequisite to
surface mining/excavation in conjunction with an irrigation district, however, any property
owner in the RR -10 may engage in activities that fit (or are excepted from) the county's
definition of surface mining activity. The subject property was previously mined as Surface
Mining Site No. 294. Therefore, the surface mining necessary to construct the reservoirs is
not a new use. The requirements of this Goal are satisfied.
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OAR 660-023, Procedures and Requirements for Complying with Goal 5
The County's non-significant inventory list is not a Goal 5 surface mining inventory. Goal 5
surface mining inventories list mine sites that must be protected by the County's Goal 5
program. Non-significant sites do not require Goal 5 protection.
Deschutes County may prohibit, allow or conditionally the surface mining in the RR -10 zone
in conjunction with irrigation systems and other RR -10 zone uses. If the use is "surface
mining," as defined by DOGAMI it may require separate permit review and approval of an
operating permit and reclamation plan but this is a matter outside of the County's
jurisdiction. The County has chosen to allow surface mining/excavation in conjunction with
irrigation system and the property to be mined must be listed on the non-significant mineral
and aggregate resource inventory. The inventory serves as the County's list of properties
that may receive approval to surface mine/excavate in conjunction with an irrigation district.
DLCD provides the following rules that determine how local governments should address
plan amendments that involve Goal 5 resources:
660-023-250, Applicability
(2) The requirements of this division are applicable to PAPAs initiated on or after
September 1, 1996. OAR 660, Division 16 applies to PAPAs initiated prior to
September 1, 1996. For purposes of this section "initiated" means that the
local government has deemed the PAPA application to be complete.
FINDING: The proposed post -acknowledgement plan amendment (PAPA) was initiated on
July 23, 2017.
(3) Local governments are not required to apply Goal 5 in consideration of a
PAPA unless the PAPA affects a Goal 5 resource. For purposes of this section,
a PAPA would affect a Goal 5 resource only if:
FINDING: The proposed PAPA will not affect a Goal 5 resource as demonstrated by the
findings, below. Consequently, the County is not required to apply Goal 5 to the proposed
PAPA.
(a) The PAPA creates or amends a resource list or a portion of an acknowledged
plan or land use regulation adopted in order to protect a significant Goal 5
resource or to address specific requirements of Goal 5;
FINDING: The applicant proposes a PAPA to add a site to the non-significant mineral and
aggregate inventory, detailed in Table 5.8.2 of the Deschutes County Comprehensive Plan.
As this Table is for non-significant mineral and aggregate sites, and the applicant does not
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propose to amend the Goal 5 significant mineral and aggregate inventory, the proposal will
not affect a Goal 5 resource.
(b) The PAPA allows new uses that could be conflicting uses with a particular
significant Goal 5 resource site on an acknowledged resource list; or
FINDING: The comprehensive plan recognizes deer winter range as a Goal 5 resource. The
subject property is located on land mapped as deer winter range.
Surface mining/excavation is not identified as a conflicting use in the County's ESEE for deer
winter range (Ordinance No. 92-41). Surface mining/excavation and privately operated large
scale recreational facilities are not prohibited in the RR -10 zoning district by the WA Zone,
the zone that is the County's program to meet Goal 5 for deer winter range. As a result, there
is no "new use" that conflicts with a significant Goal 5 resource site on an acknowledged
resource list. See Shamrock Homes, LLC v. City of Springfield, 68 Or LUBA 1 (2013).
Surface mining/excavation is an historic use of the subject property. Additionally, surface
mining/excavation is allowed in the RR -10 Zone in conjunction with uses permitted outright
and conditional uses. It, therefore, is not a new use. In particular, the RR -10 Zone allows
large acreage recreational facilities like the KCDG water ski lake/fish pond. Agricultural
ponds, including those for aquaculture or ponds for effluent generated by dairy cows, may
also be constructed in the RR -10 zone without County review and approval because they are
uses allowed outright that may be built under the on-site construction exception of the
County's definition of surface mining.
(c) The PAPA amends an acknowledged UGB and factual information is
submitted demonstrating that a resource site, or the impact areas of such a
site, is included in the amended UGB area.
FINDING: The proposed PAPA will not amend an urban growth boundary (UGB). This part
of the rule does not apply.
OAR 660-023-0030, Inventory Process
(6) Local governments may determine that a particular resource site is not
significant, provided they maintain a record of that determination. Local
governments shall not proceed with the Goal 5 process for such sites and
shall not regulate land uses in order to protect such sites under Goal 5.
FINDING: In the BOCC's approval of PA-07-2/ZC-07-2, the BOCC determined the former
mining site no longer contained significant mineral or aggregate resources and removed the
subject property from the Goal 5 inventory. Pursuant to Deschutes County Ordinance 2001-
39, the County created a list of non-significant mineral and aggregate sites detailed in Table
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5.8.2. It is to this inventory that the applicant proposes to add the subject property. Given
the fact that the County previously determined that the remaining resource on the site was
no longer significant, it is appropriate to list the site on the non-significant resource inventory
to serve as the County's record of that determination.
Goal 6 - Air, Land and Water Resources. Adoption of the subject property to the non-
significant inventory list itself provides no conflict to this Goal. Evidence has been submitted
that such adoption shall improve water resource management for TID.
Goal 7 - Areas Subject to Natural Disasters and Hazards. Adoption of the subject property
to the non-significant inventory list enables establishment of new water reservoirs that
provide a fire fighting resources for the region. The reservoirs have already been used in at
least two instances for this purpose. As a result, the approval of the amendment will help
address wildfire risks, the natural hazard identified by the plan as having the highest
probability of occurrence. The amendment does not change any of the natural hazard
protection programs that address the identified natural hazards of wildfire, winter storms,
flooding, volcanic eruption or earthquake.
Goal 8 - Recreation Needs. Not applicable. The applicant is not proposing a destination
resort and the use of the property is not included on an inventory of recreation needs or
sites.
Goal 9 - Economy of the State. Adoption of the subject property to the non-significant
inventory list has no direct effect on the economy. Instead, upon approval of the tandem
SM Application, TID will be able to better manage its system and provide a more reliable
source of water to its patron farmers and ranchers. Farming and ranching is critical to
Oregon's economy and approval of the application will allow TID to operate more efficiently.
Goal 10 - Housing. This goal is not implicated by adoption of the subject property to the non-
significant inventory list.
The Bishops claims that the PAPA will result in fewer lots being available for development
with homes. This is untrue. As demonstrated by Tanager's proposed development plan
approved by the ROW/PUD Decision, it will develop homes on each of the two 10 -acre lots
that are developed with the reservoir created by mining. One dwelling per ten acres is the
maximum density of development allowed in the RR -10 zone on existing and new parcels
not created by a cluster or planned development. Cluster and planned developments in WA
zones are also limited to one dwelling per 10 acres.
The Bishops also claim that the County must demonstrate that its Housing Needs Analysis
and Buildable Land Inventory provides an adequate number of needed housing units after
enactment of the PAPA. This assertion is incorrect. Goal 10 requires an inventory of
buildable lands. Buildable lands are "lands in urban and urbanizable areas that are suitable,
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available and necessary for residential use." The subject property is not an urban area and it
is also not an urbanizable area. It is a rural area of the county.
Last, the Bishops claim the County has found that an increase of approximately 3,500
affordable housing units is needed. They fail, however, to point to the source of this finding
and no such finding is provided in the Chapter 3, Rural Growth Management that contains
the County's findings and policies that relate to Goal 10. The plan policies that relate to
affordable housing, however, are not violated by approval of this PAPA. The plan calls for
the County to advocate that the State allow co -housing and accessory dwelling units on rural
lands and to work closely with agencies and nonprofits that promote affordable housing.
The PAPA does not prevent the County from complying with those policies.
Goal 11 - Public Facilities. This goal is not implicated by adoption of the subject property to
the non-significant inventory list, except to the extent TID is a quasi -municipal corporation.
Upon approval of the tandem SM Application, TID will be able to better manage its system
and provide a more reliable source of water to its patron farmers and ranchers.
Goal 12 - Transportation. This goal is not applicable.
Goal 13 - Energy Conservation. This goal is not applicable.
Goals 14-19. Not applicable.
DESCHUTES COUNTY COMPREHENSIVE PLAN
The Bishops argue that the County's review of the plan to determine whether it contains
applicable approval criteria is insufficient. It argues that Goal 2 requires it to review its
comprehensive plan to determine if the amendment of the non-significant resource
inventory is consistent with the comprehensive plan. The County has reviewed the plan and
has found no inconsistency.
The County's comprehensive plan does not contain any policies that create approval criteria
for the review and approval of applications of this type. The following plan policies may have
some relevance in the county's review of the PAPA so have been specifically considered to
determine consistency:
Section 2.2 Agricultural Lands Policies Goals and Policies
Goal 1 Preserve and maintain agricultural lands and the agricultural industry.
Policy 2.2.7 Encourage water projects that benefit agriculture.
FINDING: Approval of this application will encourage an irrigation district water project that
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will benefit agriculture. The reservoirs provide a significant upgrade to TID's delivery system
by allowing it to store water for future use by patrons who are engaged in farm use. Storing
water in lined reservoirs is more efficient than using other storage facilities that lose water
to the aquifer. TID has provided a more detailed description of the benefits of water storage
and benefits to its patrons, which are incorporated herein by reference.
Section 2.5 Water Resource Policies Goals and Policies
Goal 2 Increase water conservation efforts.
Policy 2.5.6 Support conservation efforts by irrigation districts, including programs to
provide incentives for water conservation.
FINDING: The new reservoirs will allow TID to reduce its reliance on live flows of Tumalo
Creek and the Deschutes River. Further, because the new reservoirs are lined (unlike other
TID reservoirs), they are likely to lose less water to seepage.
Goal 3 Maintain and enhance a healthy ecosystem in the Deschutes River Basin.
Policy 2.5.8 Work with stakeholders to restore, maintain and/or enhance healthy
river and riparian ecosystems and wetlands, including the following:
a. Encourage efforts to address fluctuating water levels in the
Deschutes River system;
FINDING: TID and KCDG have worked collaboratively on the new reservoirs project. The new
reservoirs will enable TID to have more flexibility in its system to reduce reliance on live flows,
thereby helping improve overall flows in the Deschutes River system.
Section 2.6 Wildlife Policies
Goals and Policies
Goal 1 Maintain and enhance a diversity of wildlife and habitats.
Policy 2.6.1 Goal 5 wildlife inventories, ESEEs and programs are retained and not
repealed.
Policy 2.6.2 Promote stewardship of wildlife habitats and corridors, particularly those
with significant biological, ecological, aesthetic and recreational value.
Policy 2.6.8 Balance protection of wildlife with wildland fire mitigation on private lands
in the designated Wildland Urban Interface.
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FINDING: The approval of this application will not repeal a Goal 5 wildlife inventory, ESEE or
a program that achieves compliance with the goal. As explained earlier, the ESEE for the
Goal 5 wildlife resource, deer winter range, does not prohibit surface mining and the use is
allowed as a conditional use by the WA zone that implements Goal 5.
Policy 2.6.2 is does not serve as an approval criterion for land use applications. Nonetheless,
the BOCC considered wildlife habitat and corridors and finds the approval of this application
will promote stewardship of habitat used as deer winter range. Applicant has worked with
wildlife consultant, Dr. Wendy Wente of Mason Bruce & Girard to create a WHMP, attached
as Exhibit A to this decision. Compliance with the WHMP is added as a condition of this
approval. Compliance with the WHMP has also been added as a condition of approval for
the ROF/PUD Decision.
The new reservoirs appear to provide significant benefits in fighting wildfires, as both the
source of water to fight wildfires but also as a significant fire break. The reservoirs also
provide a water source for wildlife.
Section 2.10 Surface Mining Policies
Goal 1 Protect and utilize mineral and aggregate resources while minimizing adverse
impacts of extraction, processing and transporting the resource.
Policy 2.10.1 Goal 5 mining inventories, ESEEs and programs are retained and not
repealed.
Policy 2.10.3 Balance protection of mineral and aggregate resources with conflicting
resources and uses.
Policy 2.10.5 Review surface mining site inventories as described in Section 2.4,
including the associated Economic, Social, Environmental and Energy (ESEE) analyses.
FINDING: The mineral resource on site is not significant and is no longer a Goal 5 protected
resource as determined when the county rezoned the property from SM to RR -10 zoning. In
fact, the site is the reclaimed surface mining site No. 294.
To the extent these plan policies apply, the proposed use does not create new conflicts with
other Goal 5 or other resources or uses. Surface mining and projects that involve mining
were not found to be a conflicting uses in the County's program to achieve compliance with
Goal 5 for the deer winter range. Presumably, those findings apply equally to excavation.
That program is contained in the provisions of the County's WA overlay zone. Additionally,
the County has previously determined that surface mining should be allowed in the RR -10
zone as a conditional use when related to irrigation district systems. The Deschutes County
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Code contains conditional use and site plan- requirement that protect other conflicting
resources and uses.
This application does not seek to repeal any Goal 5 mining inventory or ESEE. The County
has previously balanced the protection of mining the site with conflicting resources in the
ESEE for surface mining site No. 294.
This application involves a review of one of the two surface mining site inventories in the
acknowledged comprehensive plan, Table 5.8.2. It provides:
Table 5.8.2 -- Deschutes County Non -Significant Mining Mineral and Aggregate
Inventory
Site #
Tax Lot
Name
Type
Quantity*
Comments
100
15-10-13-700
Whychus
Creek
Irrigation
District—
Watson
Reservoir I.
Silt, sand,
& dirt
200,000 cy
Reservoir Size
is 80 acres.
101
15-10-13-700
Whychus
Creek
Irrigation
District—
Watson
Reservoir II.
sand & dirt
600,000 cy
Reservoir size is
40 acres.
102
14-11-33-500
Whychus
Creek
Irrigation
District—
McKenzie
Reservoir
Silt, sand,
& dirt
100,000 cy
Reservoir size is
12 acres
103
14-11-33-500
Whychus
Creek
Irrigation
District—
McKenzie
Reservoir
Expansion
Sand & dirt
250,000 to
300,000 cy
Reservoir
expansion size
is 20 acres
Duantitv in cubic yards unless otherwise noted
FINDING: When the County adopted the non-significant mining mineral and aggregate
inventory, Table 5.8.2, it also amended its zoning ordinance to allow surface
mining/excavation for irrigation district reservoirs and other irrigation district purposes.
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Site #
Tax Lot
1711130000-820
Name
Type
Quantity*
Comments
104
1711130000-824
KCDG,
Silt,
Less than
Excavation
1711130000-828
LLC/Tumalo
Irrigation
sand,
gravel
1,000,000
cy
for reservoir
District -
KCDG
Neither the Comprehensive Plan nor Title 18 provide relevant approval criteria to determine
whether a property should be included on a non-significant surface mining inventory. There
are no applicable Comprehensive Plan goals and policies in Section 2.10, Surface Mining, that
pertain to amending Table 5.8.2, "Non -Significant Mining Mineral and Aggregate Inventory."
Additionally, no approval criteria for PAPAs, in general, are included in the county's zoning
ordinance.
The BOCC finds and directs that the subject property be added to the non-significant mineral
inventory list in Table 5.8.2 of the comprehensive plan as set out above.
TITLE 18, COUNTY ZONING
A. Chapter 18.60, Rural Residential Zone
1. Section 18.60.020. Uses Permitted Outright.
D. Agricultural use as defined in DCC Title 18.
FINDING: The reservoirs will also be used for the agricultural use of aquaculture, a use
permitted outright in the RR -10 Zone that does not require Board approval. Opponent
Bishop has argued that the "addition" of this use to the application modifies the application
and, therefore, cannot be considered due to the provisions of DCC 22.20.055(B). This use
has been an integral part of the proposal from the date filed. But, even if it is a change of
plans, it is not a modification of application. A modification of application is defined by DCC
22.04.020 to be new information "that requires the application of new criteria to the proposal
or that would require the findings of fact to be changed." No new criteria have been applied
as a result of this fact nor does this information require a change to the findings of fact that
support approval of the submitted applications.
2. Section 18.60.030. Conditional Uses Permitted.
The following uses may be allowed subject to DCC 18.128:
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W. Surface mining of mineral and aggregate resources in conjunction
with the operation and maintenance of irrigation systems operated
by an Irrigation District, including the excavation and mining for
facilities, ponds, reservoirs, and the off-site use, storage, and sale of
excavated material.
FINDING: The applicant proposes to authorize its previous establishment of two reservoirs
to be used as reservoirs for TID irrigation water and for use as recreational facilities (under
the separate ROF/PUD Decision). Applicant KCDG performed the work to create the
reservoirs in 2014 but TID has planned to use the facility since 2013 and intends to proceed
with this use upon approval. The BOCC interprets TID's intent to use the reservoirs as
sufficient to be "in conjunction with" pursuant to this criterion.
3. Section 18.60.040. Yard and Setback Requirements.
In an RR 10 Zone, the following yard and setbacks shall be maintained...
FINDING: In 2015, it was determined that the reservoirs are structures. The BOCC adheres
to that determination. It was also determined that the reservoirs are not subject to yard or
setback requirements. The BOCC adheres to that determination for the following reasons:
Section 18. 04.030 includes the following relevant definitions:
"Building" means a structure built for the support, shelter, or enclosure of
persons, animals, chattels or property of any kind.
"Setback" means an open space on a lot which is unobstructed from the ground
upward except as otherwise provided in DCC Title 18.
"Setback, front" means a setback between side lot lines, measured horizontally
at right angles to the front lot line and the front lot line to the nearest point of
a building.
"Setback, rear" means a setback between side lot lines, measured horizontally
at right angles to the rear lot line from the rear lot line to the nearest point of
a building.
"Setback, side" means a setback between the front and rear yard measured
horizontally at right angles from the side lot line to the nearest point of a
building.
"Structure" means something constructed or built having a fixed base on, or
fixed connection to, the ground or another structure."
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"Yard" means an open space on a lot which is unobstructed from the ground
upward except as otherwise provided in Title 18.
"Yard, front" means a yard between side lot lines measured right angles to the
front lot line from the front lot line to the nearest point of a building. Any yard
meeting this definition and adjoining on a street other than an alley shall be
considered a front yard.
"Yard, rear" means a yard between side lot lines measured horizontally at right
angles from the rear lot line to the nearest point of a building.
"Yard, side" means a yard between front and rear yard measured horizontally
at right angles from the side lot lines to the nearest point of a building.
(Emphasis added.)
Reservoirs. The BOCC previously determined in its review of a prior LUCs application that
the KCDG reservoirs are structures because they are lined and the liners are connected to
the ground. The structures are not, however, buildings because they are not built for the
support, shelter, or enclosure of persons, animals, chattels or other property. This fact has
been confirmed by the County's building official who has advised that the reservoirs do not
require building permits.
The Bishops argue that the setbacks in the RR -10 Zone apply to the reservoir because the
uppermost portion thereof, the banks and areas where the liners are secured with gravel,
project above the ground. The BOCC disagrees. Per DCC 18.120.030(B), steps, terraces,
platforms and porches having no roof covering may project into a required yard. The banks
and liners are essentially at ground level, much like steps or porches. For this reason, the
BOCC finds the banks and liners may project into a required setback.
The Bishops and other opponents also argue that the reservoirs themselves constitute
"obstructions" to the movement of wildlife across the subject property. As the reservoirs are
not buildings, however, they are not subject to setback and yard requirements. Further, the
record supports wildlife biologist Dr. Wendy Wente's opinion that other migration corridors
exist on the subject property and have been maintained under this and other land use
applications regarding the reservoirs.
Dock. Pilings and Boathouse. The reservoirs include docks and pilings for boathouses that
will project above the water level. The pilings for the boathouses are not structures until
such time as the boathouses are constructed on the pilings, because the pilings do not
presently support, shelter or enclose anything. When the boathouses and docks are built on
the pilings, collectively they will be buildings that are subject to setback and yard
requirements.
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The required setbacks for the subject property are: 20' front yard, 10' side yard, and 20' rear
yard. The pilings have been setback over 20 feet from all property lines and, therefore,
comply.
The boathouse is a "building" that is subject to setbacks. It is being reviewed in a separate
land use application and will not be built unless approved as being in compliance with
applicable setbacks.
Similar to the BOCC finding regarding the banks and liners, the BOCC finds that docks are
akin to platforms and porches. For this reason, docks may project into a required setback.
4. Section 18.60.060. Dimensional Standards.
In an RR 10 Zone, the following dimensional standards shall apply:
A. Lot Coverage. The main building and accessory buildings located on
any building site or lot shall not cover in excess of 30 percent of the
total lot area.
FINDING: As set forth in the findings above, the reservoirs are not buildings. Therefore, the
lot coverage standard does not apply to the reservoirs.
B. Chapter 18.56, Surface Mining Impact Area Combining Zone
1. Section 18.56.030. Application of Provisions.
The standards set forth in DCC 18.56 shall apply in addition to those specified
in DCC Title 18 for the underlying zone. If a conflict in regulations or
standards occurs, the provisions of DCC 18.56 shall govern.
FINDING: The SMIA Combining Zone associated with Surface Mining Site No. 293 to the
north burdens the subject property. The standards under DCC 18.56 are addressed in the
following findings.
2. Section 18.56.050. Conditional Uses Permitted.
Uses permitted conditionally shall be those identified as conditional uses in
the underlying zone(s) with which the SMIA Zone is combined and shall be
subject to all conditions of the underlyingzone(s) as well as the conditions of
the SMIA Zone.
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FINDING: The use proposed is allowed conditionally by the RR -10 Zone and, therefore, is
allowed conditionally by the SMIA Combining Zone. Compliance with all conditions of the
RR -10 and SMIA Zones are addressed herein.
3. Section 18.56.070. Setbacks.
A No noise -sensitive or dust -sensitive use or structure established or
constructed after the designation of the SMIA Zone shall be located
within 250 feet of any surface mining zone, except as provided for in
Section 18.56.140.
B. No noise -sensitive or dust sensitive use or structure established or
constructed after the designation of the SMIA zone shall be located
within one-quarter mile of any existing or proposed surface mining
processing or storage site, unless the applicant demonstrates that the
proposed use will not prevent the adjacent surface mining operation
from meeting the setbacks, standards, and conditions set forth in DCC
18.52.090, 18.52.110, and 18.52.140, respectively.
FINDING: The proposed reservoirs are not dust- or noise -sensitive uses as defined in DCC
18.048. These setback criteria do not apply.
C. Additional setbacks in the SMIA zone may be required as part of the
site plan review under DCC 18.56.100.
FINDING: Because the reservoirs are not dust- or noise -sensitive uses, no additional
setbacks are required.
4. Section 18.56.080. Use Limitations.
No dwellings or additions to dwellings or other noise -sensitive or dust -
sensitive uses or structures shall be erected in any SMIA Zone without first
obtaining site plan approval under the standards and criteria set forth in DCC
18.56.090 through 18.56.120.
8"Dust-sensitive use" means real property normally used as a residence, school, church, hospital or
similar use. Property used in industrial or agricultural activities is not "dust -sensitive" unless it meets
the above criteria in more than an incidental manner. Accessory uses such as garages and workshops
do not constitute dust -sensitive uses. DCC 18.04.030 (definitions).
"Noise -sensitive use" means real property normally used for sleeping or normally used as schools,
churches, hospitals or public libraries. Property used in industrial or agricultural activities is not
"noise -sensitive" unless it meets the above criteria in more than an incidental manner. Accessory uses
such as garages or workshops do not constitute noise -sensitive uses. DCC 18.04.030 (definitions).
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FINDING: The reservoirs are not a dust -or noise -sensitive use. Therefore, the criteria under
DCC 18.56.090 through 18.56.120 do not apply.
5. Section 18.56.120. Waiver of Remonstrance.
The applicant for site plan approval in the SMIA Zone shall sign and record in
the Deschutes County Book of Records a statement declaring that the
applicant and his successors will not now or in the future complain about the
allowed surface mining activities on the adjacent surface mining site.
FINDING: The proposed reservoirs are not subject to site plan review under this chapter.
Therefore, a waiver is not required.
C. Chapter 18.84, Landscape Management Combining Zone
1. Section 18.84.020. Application of Provisions.
The provisions of this chapter 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 this
chapter 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 a landscape management
corridors in the comprehensive plan and the County Zoning Map. The
distance specified above shall be measured horizontally from the centerline
of designated landscape management roadways or from the nearest
ordinary high water mark of a designated landscape management river or
stream. The limitation in this section shall not unduly restrict accepted
agricultural practices.
FINDING: Johnson Road and Tumalo Creek are identified on the County Zoning Map as the
referenced landscape management features relevant to the subject property. A portion of
the subject property falls within these Landscape Management Combining Zones.
Therefore, the following provisions of this chapter apply.
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: The north reservoir is not located within any LM Combining Zone. The south end
of the south reservoir is located within the LM Zone that protects Tumalo Creek. The
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northwest corner of the subject property is burdened by the LM Zone that protects views
from Johnson Road. Surface mining/excavation in conjunction with an irrigation district for
the purposes of operation and maintenance of an irrigation system operated by an irrigation
district is a conditionally allowed use in the RR -10 Zone and, therefore, is conditionally
allowed 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.
FINDING: The structures on-site are the reservoirs9. These structures do not require a
building permit. For this reason, site plan approval pursuant to the LM Zone is not required.
D. Chapter 18.88, Wildlife Area Combining Zone
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 subject property is within the Tumalo deer winter range. The provisions of
this chapter apply.
3. Section 18.88.040. Uses Permitted Conditionally.
A. Except as provided in DCC 18.88.040(8), 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.
9 In the concurrent applications for the ROF and PD, the LM Zone criteria applicable to the proposed
boathouses and dwellings - structures requiring building permits - have been addressed. They are
not addressed here because they are not integral to nor even part of this application nor the proposed
use of the reservoirs by TID for water storage and reregulation by an irrigation district.
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FINDING:_ The reservoirs are a conditionally allowed use in the underlying RR -10 Zone and,
therefore, are conditionally permitted by the WA zone. The use is not one of the uses
prohibited in deer winter range by DCC 18.88.040(B).
4. Section 18.88.060. Siting Standards.
A. Setbacks shall be those described in the underlying zone with which
the WA Zone is combined.
FINDING: The applicable setbacks of the RR10 Zone are addressed above. Subsection (B)
of this code section does not apply. It applies only to new dwellings.
5. Section 18.88.070. Fencing Standards.
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.
8. 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 does not propose new fencing. This criterion does not apply.
E. 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:
A. The site under consideration shall be determined to be suitable for
the proposed use based on the following factors:
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1. Site, design and operating characteristics of the use;
FINDING: The applicant requests after -the -fact conditional use permit approval for the
reservoirs. The BOCC finds that for the purposes of addressing suitability of the site for its
use for the reservoirs, the "site" is considered as the subject property as it existed after the
surface mine was reclaimed, and prior to any excavation to create the now -existing
reservoirs.
Site
The area which includes the north reservoir was previously cleared and historically used to
grow some type of crop. At least since July 2000, a small pond has been located in the
southeast corner of the property identified as tax lot 820 on applicant Exhibit B.
The siting of the north reservoir in this area appears to take advantage of the previous
clearing of the land by surface mining operations. The future configuration of tax lot 820 is
Targe enough to accommodate the dimensions of the north reservoir. While it is true that the
current dimensions of the north reservoir dwarf the historic irrigation pond, the site was a
large open area suited for development as a reservoir.
The site of the south reservoir is located within the boundaries of the south pit of a formerly
reclaimed surface mine. Siting of the south reservoir in this area takes advantage of the
existing mining pit. Creation of the south reservoir removed sparse vegetation from the site
and deepened the reclaimed pit. This was the best location on the subject property for the
reservoir as it is where the subject property receives irrigation water from TID and the
location on site where the least amount of excavation and disturbance of vegetation was
required to establish the reservoir. The south reservoir is located adjacent to the TID's
Tumalo Feed Canal for convenient access to TID water. As a result, the location of the south
reservoir is suitable to the subject property and use as a reservoir.
The BOCC finds the reservoirs are suitable to the site considering the siting of the reservoirs
on the subject property.
Design
The north reservoir is proposed to be comprised of one tax lot. The property which includes
the north reservoir is large enough to accommodate the reservoir dimensions. The north
reservoir is lined to minimize water loss due to seepage, and includes a piped connection to
the south reservoir, which is also lined. The design also includes an outflow structure
between the north and south reservoirs. A pump and pipe will be provided and is mandated
as a condition of approval, at the north reservoir to pump water back to TID's system of
canals. The north reservoir provides an aesthetic feature apart from the previously cleared
and mined area.
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The south reservoir is proposed to be comprised of two tax lots as shown in Exhibit B. The
property which includes the south reservoir is large enough to accommodate the dimensions
of the reservoir. The south reservoir is also lined and includes a weir and head gate to accept
water from the Tumalo Feed Canal. The south reservoir is different in size, shape and
appearance than typical rural irrigation ponds because it was designed to serve the
concurrent purpose of being used as a water ski lake. Nonetheless, the cited approval
criterion does not require that the reservoir look like rural irrigation ponds on other
properties. Instead, it asks whether the site is suitable for use considering the design of the
use. There is no question that the previous development of the property as a surface mine
makes the site suitable for development of a reservoir. Similar to the north reservoir, the
south reservoir provides an aesthetic feature apart from the previous surface mining pit on-
site.
The lining makes the reservoirs suitable, by design, for their function of storing water until it
is needed on other properties in the irrigation district.
The BOCC finds the site is suitable given the design of the reservoirs.
Operating Characteristics
The two reservoirs together have the capacity to hold 125 acre-feet of water in addition to
the 55 acres of irrigation water right appurtenant to the subject property. The reservoirs will
be used to store water by TID. The reservoirs are below the level of the TID canal so that
water can readily flow into them for storage. The record includes information regarding
installation of a pump and piping (mandated as a condition of approval in this decision)
which will allow water to be conveyed from the north reservoir back into the TID canal. The
location of the north reservoir is suitable for this function. The fact that the reservoirs are
lined makes them suitable for storing water without recharging the aquifer. This and that
fact that the reservoirs are lined and can store a large amount of water more than
compensates for the fact that the surface area of the ponds subject to evaporation is
relatively large. The site is suitable for the proposed use based on the operating
characteristics of the use.
2. Adequacy of transportation access to the site; and
FINDING: Both reservoirs will be accessed from private PUD roads proposed under a
separate application. The existing graveled road along the western property line along with
existing paved driveways on-site will provide adequate access to both reservoirs. TID has
used the graveled road since establishment of its system and holds an easement pursuant
to the Carey Act of 1894. It is not anticipated that the reservoirs will create additional traffic
impacts with regards to TID's use or the use of storing water for reregulation purposes. No
comments were received from the County Road Department or the Planning Division's
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Senior Transportation Planner Peter Russell indicating a need for different access or for any
transportation related improvements to nearby public roads. Transportation access to the
reservoirs is adequate to the site.
3. The natural and physical features of the site, including, but not
limited to, general topography, natural hazards and natural
resource values.
FINDING: The issue presented by this code criterion is whether the natural and physical
features of the site are such that it is suited for the use proposed. For instance, a site may
have slopes that make it too steep for the development of most uses.
The general topography on the subject property prior to excavation for the reservoirs
consisted of steep canyon walls and slopes associated with Tumalo Creek, rolling terrain and
the reclaimed Klippel mining pits. The mining pits comprised two large depressed areas with
contoured slopes. The topography of the mining pits was altered to create the reservoirs.
Creation of the reservoirs left the existing tree cover intact. It removed sparse vegetation in
and around the reclaimed pits resulting in large areas of gravel, rock and dirt that will be
developed with homes and landscaped. The reclaimed surface mines were ideally suited by
their physical features for redevelopment as reservoirs as a large amount of material had
been removed prior to 2014. Outside of the steep slopes associated with the south end of
the South Reservoir, the BOCC finds the site is suitable to the reservoirs considering the
topography of the site prior to reservoir creation. With respect to the steep slopes, the BOCC
finds these slopes can be made suitable to the site subject to compliance with the proposed
Landscaping Plan to soften the appearance of these slopes.
The only natural hazard that existed on the subject property prior to creation of the
reservoirs (and which exists at present) is the risk of wildfire. That risk is no greater on the
subject property than elsewhere on the west side of the City of Bend. The record also shows
that water in the reservoirs has been made available and used for wildfire suppression.
In Ski Lake I, a County Hearings Officer found the natural resource values of the site, pre -
reservoirs, consisted of the reclaimed mine, including the native vegetation and wildlife
habitat that was removed in and around the current location of the reservoirs. In the
Hearings Officer's decision, it was recommended the applicant develop a wildlife habitat
management plan to address impacts to wildlife and habitat. The applicant proposes
compliance with the Wildlife Habitat Management Plan ("WHMP") to ensure suitability of the
site considering natural resource values. The BOCC finds the WHMP will mitigate impacts to
wildlife and habitat, and ensure continued protection of these resources. Compliance with
the WHMP is included as a condition of approval.
With the imposition of a condition of approval requiring compliance with the proposed
Landscape Plan and the WHMP, the BOCC finds the site is suitable to the reservoirs
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considering the natural and physical features of the site. The Landscape Plan is attached as
Exhibit B to this decision.
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).
The factors listed in DCC 18.128.015(A) have been addressed above. The proposed use of
the property for reservoirs is compatible with existing and projected uses on surrounding
properties based on those factors. The gist of this test is whether the characteristics of the
use addressed in DCC 18.128.015(A) will negatively impact uses occurring or projected to
occur on other properties.
Existing uses on surrounding land include rural residences, some small-scale farming, and
two active surface mines. There are small ponds on residential properties and larger ponds
on the nearby Cake Pit to the east across Tumalo Creek. Projected uses on surrounding
lands are expected to be the same as existing uses. The reservoirs will not have any impact
on nearby mining uses as the reservoirs are not noise or dust -sensitive uses. In addition, the
reservoirs also will not negatively impact residential or farm uses on the EFU- and Forest -
zoned land in the surrounding area due to the significant distance between the reservoirs
and these lands. Additionally, reservoirs and ponds are a typical part of the rural landscape
in Deschutes County, particularly on farm properties.
One of the predominant features and uses in the area is surface mining. The Subject
Property used to be a surface mine. Two large and active mines border 2 of the 4 sides of
the KCDG properties. The property is in a surface mining overlay zone. Residential use is not
the only relevant inquiry. Beyond that, the development proposal provides additional
buffering between the surface mining uses and residential areas. This provides an orderly
transition.
The reservoir use is a generally desirable use that typically benefits area properties. This is
the case for the KCDG's reservoirs. One of the two reservoirs is built adjacent to residences
owned by the managers of KCDG. The sites of the reservoirs do not make the use
incompatible with adjoining properties. The reservoirs are designed so that they will not be
visible to most residents. The facilities are "low -maintenance" facilities with limited use,
unless otherwise allowed by separate conditional use approvals.
The transportation access to the reservoirs is adequate for the use and will not overburden
streets that provide access to other area properties. The areas developed with the reservoirs
were surface mining pits. The general topography of the site was suited for reservoir use
due to prior excavation for surface mining. The reservoirs will not increase natural hazard
risks for surrounding properties. The project will not be incompatible with other properties
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even if it has some impact on natural resource values such as wildlife. Furthermore, the
creation of a water source for deer and elk generally enhances wildlife habitat.
Specific to this application, the reservoirs should relate harmoniously to rural residential
uses on surrounding land despite their size and appearance because they are not visible
from most of the surrounding properties. Additionally, the prior condition of the property
was a reclaimed surface mine with limited vegetation. The operating characteristics of the
reservoirs, without any associated use, will not result in noise or traffic impacts. As noted
above, the BOCC has conditioned approval to require compliance with the Landscape Plan
to mitigate any aesthetic impacts to surrounding properties due to the steep slopes on the
south end of the south reservoir.
C. These standards and any other standards of DCC 18.128 may be met
by the imposition of conditions calculated to insure that the standard
will be met.
FINDING: The BOCC conditions approval to require compliance with the Landscape Plan.
2. Section 18.128.280. Surface Mining of Non -Goal 5 Mineral and Aggregate
Resources
These uses are subject to the following standards:
A. An application shall be filed containing the following information:
1. A detailed explanation of the project and why the surface
mining activity is necessary.
FINDING: A purpose of the excavation was to convert the reclaimed Klippel mining pit into
two reservoirs to store TID water. The applicant has an agreement with TID that will allow it
to store irrigation water in the reservoirs if this application is approved.
2. A site plan drawn to scale and accompanied by any drawings,
sketches and descriptions necessary to describe and illustrate
the proposed surface mining.
FINDING: The applicant submitted a site plan and narrative depicting and describing the
existing and pre-existing conditions on the subject property. The application materials
illustrate the size and configuration of the mined areas, and the final grades surrounding the
reservoirs.
B. A conditional use permit shall not be issued unless the applicant
demonstrates at the time of site plan review that the following
conditions are or can be met:
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Central_ Oregon LandWatch_ argued that the criteria of DCC 18.128.280 prevent approval
because approval must be received before the work is done. As detailed below, the BOCC
finds the applicant has met, or can meet, all relevant approval criteria under DCC 18.128.280.
1. The surface mining is necessary to conduct or maintain a use
allowed in the zone in which the property is located.
FINDING: As previously determined by the BOCC, the excavation to create the reservoirs
was undertaken in conjunction with an irrigation district. The excavation was necessary to
create the reservoirs and thus allows TID to store irrigation water. This excavation is
conditionally allowed in the RR -10 Zone and WA Combining Zone.
2. Erosion will be controlled during and after the surface mining.
FINDING: Taylor NW completed the reservoir work including erosion controls. Both
reservoirs and their liners are still in place and intact. No complaints were received during
construction of the reservoirs regarding adverse conditions off-site due to erosion. There is
no significant erosion of the banks associated with the reservoirs and no sign that any
erosion occurred during construction of the reservoirs.
3. The surface mining activity can meet all applicable DEQ noise
control standards and ambient air quality and emission
standards.
FINDING: Mining occurred without violating DEQ noise and ambient air quality and emission
standards. No complaints were received regarding noise or air quality, and there is no active
code enforcement case on these issues.
4. Sufficient water is available to support approved methods of
dust control and vegetation enhancement.
FINDING: There was and is sufficient water on site for use in dust control. Likewise, the
BOCC finds that there will be sufficient water to support vegetation enhancement into the
future.
5. The surface mining does not adversely impact other resources
or uses on the site or adjacent properties, including, but not
limited to, farm use, forest use, recreational use, historic use
and fish and wildlife habitat as designed or through mitigation
measures required to minimize these impacts.
FINDING: The excavation to create the reservoirs has occurred and did not adversely impact
farm uses, forest uses, recreational uses, Goal 5 uses, or historic uses on the site or on
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adjacent properties. The farm or forest uses are a considerable distance from the excavation
activity and were not adversely impacted. There are no known or inventoried historic
resources on-site. No recreational use has been established in the area such as a park,
playground or similar facility.
As noted above, the BOCC has conditioned approval to require compliance with the
Landscape Plan and WHMP to ensure mitigation of wildlife and habitat impacts. Additionally,
the BOCC finds that the reservoirs provide a convenient water source and enhancement for
wildlife.
C. If the surface mining actively involves the maintenance or creation of
man made lakes, water impoundments or ponds, the applicant shall
also demonstrate, at the time of site plan review, that the following
conditions are or can be met:
1. There is adequate water legally available to the site to
maintain the water impoundment and to prevent stagnation.
FINDING: KCDG's excavation was completed to create two reservoirs, and therefore the
standards in this paragraph apply. This subparagraph requires the applicant to demonstrate
there is water "legally available to the site" to maintain the reservoirs. KCDG has filed for a
groundwater permit to provide water to be impounded by the reservoirs. KCDG is not legally
prohibited from obtaining such a water right and has offered its opinion and that of its water
rights' attorneys that it is feasible for it to obtain the water right. Opponents and their
attorneys have argued that a permit will not be issued. On balance, the Board agrees with
applicant. Several avenues exist for water to be transferred, used, or otherwise to prevent
stagnation. The record shows that the storage capacity of the two reservoirs is
approximately 125 acre feet, and KCDG and its related parties have at least 55 acre feet of
irrigation water entitlement each year. This is clearly enough to move water throughout the
system and prevent stagnation.
TID must acquire a state agency permit in order to store water in the reservoirs. There is
substantial evidence in the record that TID is able to obtain approval of such a permit. There
is no evidence in the record that TID is legally prohibited from obtaining such a permit, except
the opinion of Bishops' lawyers, which is persuasively rebutted by applicant's attorneys and
the stipulated judgment with WRD which specifically contemplates additional water rights
applications by applicant and TID. The county may impose a condition of approval requiring
TID obtain a WRD permit without determining that it is feasible to do so. Wal-Mart Stores v.
City of Bend, 52 Or LUBA 261 (2006); Bouman v. Jackson County, 23 Or LUBA 626 (1992).
The BOCC imposes a condition of approval requiring the property owners to submit to the
Planning Division written documentation from WRD that TID has all necessary permits to
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store its water in the reservoirs before commencing any use of the reservoirs, including
water storage for TID's reregulation purposes.
2. The soil characteristics or proposed lining of the impoundment
are adequate to contain the proposed water and will not result
in the waste of water.
FINDING: Both reservoirs are lined and are in operational condition. Therefore, the BOCC
finds the liners are adequate to contain the proposed water and will not result in the waste
of water.
3. Where the impoundment bank slope is steeper than three feet
horizontal to one foot vertical, or where the depth is six feet or
deeper, the perimeter of the impoundment is adequately
protected by methods such as fences or access barriers and
controls.
FINDING: The depth of the reservoirs is greater than six feet. Therefore, this subsection
requires "perimeter fencing, access barriers or controls." Perimeter fencing is not necessary,
however, because "access controls" are place - i.e., private ownership of the reservoirs and
their location on private property not accessible to the public.
4. The surface mining does not adversely affect any drainages, all
surface water drainage is contained on site, and existing
watercourses or drainages are maintained so as not to
adversely affect any surrounding properties.
FINDING: Due to the slopes created for the reclamation, all runoff in and around the mining
pit drained to the bottom of the mining pit. The only existing watercourses or drainages on-
site are the Tumalo Irrigation District canal and Tumalo Creek. The canal is piped
underground and was maintained so as not to adversely affect any surrounding properties
during surface mining to create the reservoirs. The slopes associated with the reservoirs
cause water to drain toward the reservoirs, away from Tumalo Creek.
D. Limitations
1. Excavation does not include crushing or processing of
excavated material.
FINDING: KCDG received a temporary use permit to crush excavated material for purposes
of road building (TU -14-8). The County Hearings Officer in Ski Lake I found there was nothing
in that record that indicates crushing was involved in the creation of the reservoirs. There is
no new evidence that would change such a finding. Furthermore, the activity authorized by
this permit is the creation of the reservoirs not the separately authorized rock crushing for
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Document No. 2018-595 Page 52
road building and landscaping purposes.
2. A permit for mining of aggregate shall be issued only for a site
included on the County's non-significant mineral and
aggregate resource list.
FINDING: As part of this proposal, the applicant requested approval for the subject property
to be included on the County's non-significant mineral and aggregate resource list. As noted
in this decision, the BOCC approves and directs the addition of the subject property to the
non-significant inventory list.
3. Hours of operation shall be 7:00 a.m. to 6:00 p.m. Monday
through Saturday. No surface mining activity shall be
conducted on Sundays or the following legal holidays: New
Year's Day, Memorial Day, July 4th, Labor Day, Thanksgiving
Day, Christmas Day.
FINDING: The applicant advises that the hours of operation were honored. Because the
surface mining to create the reservoirs has been completed, the time restrictions in this
subsection cannot be imposed. This criterion is no longer applicable.
C. These standards and any other standards of DCC 18.128 may be met
by the imposition of conditions calculated to insure that the standard
will be met.
FINDING: The BOCC has included conditions of approval to require compliance with the
Landscape Plan and WHMP.
CONDITIONS OF APPROVAL
The application for conditional use approval and amendment to the Comprehensive Plan is
granted subject to compliance with the following conditions of approval:
A. The property owners shall submit written documentation from WRD that TID has
obtained all necessary permits to store its water in the reservoirs or to use the
reservoirs for re -regulation purposes before commencing use of the reservoirs for
TID's purposes.
B. The property owners or its successors in interest in the subject property shall
maintain a water delivery or use arrangement with TID for as long as the reservoirs
are used by TID.
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C. All stockpiled material stored on-site under the authority of TU -14-8 shall be used
onsite or on adjoining properties owned by KCDG for landscaping and road
construction prior to the filing of the final plat for the subdivision or within the time
required by TU -14-8 (60 days after the landscaping and road work projects have been
completed) whichever is earlier.
D. Prior to initiating the use of the reservoirs for re -regulation of TID water, the
applicant shall install the landscaping detailed in the Landscape Plan, attached as
Exhibit B to this decision. Should the ROF/PUD approval not be upheld on appeal, the
applicant shall modify the Landscape Plan and Excavation Decision.
E. The applicant shall comply with the provisions of the WHMP, attached as Exhibit C.
ROF/PUD approval not be upheld on appeal, the applicant shall modify the
Landscape Plan and Excavation Decision.
F. Within 1 year of final approval, the property owner shall construct the necessary
pump, piping, and other appurtenant materials to allow the conveyance of TID water
from the reservoirs to TID's Canal.
G. The property owner shall submit to the Planning Division proof of adequate water for
the reservoir use, including any required permits from associated permitting
authorities.
Dated this day of August, 2018
BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
Anthony DeBone, Chair
Philip G. Henderson, Vice Chair
Tammy Baney, Commissioner
THIS DECISION BECOMES FINAL WHEN SIGNED. PARTIES MAY APPEAL THIS DECISION TO
THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS
DECISION IS FINAL.
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Document No. 2018-595 Page 54
Exhibit A
[Board Order]
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Exhibit B
Landscape Plan
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Exhibit C
WHMP
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For Recording Stamp Only
DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
FILE NUMBERS:
247 -17 -000636 -CU
247 -17 -000637 -TP
247 -17 -000639 -CU
247 -17 -000640 -SP
247 -17 -000641 -LM
HEARING DATE: April 12, 2018,
PROPOSAL:
APPLICANT/
OWNER:
The applicant proposes to establish a recreation -oriented facility'
("ROF") requiring a conditional use permit (247 -17 -000636 -CU), site plan
review, and landscape management review. The ROF is proposed as a
ski lake (south reservoir) and for passive recreational uses including
non -motorized boating and swimming (north reservoir).
The applicant also proposes to establish a ten -lot planned unit
development ("PUD") requiring a conditional use permit (247 -17-
000627 -CU), surface mining impact area review, and tentative plan
review.
Tanager Development, LLC - Applicant
KC Development Group, LLC - Owner
APPLICANT'S
ATTORNEY: Ken Katzaroff
63560 Johnson Road
Bend, OR 97703
Liz Fancher
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Document No. 2018-596 Page 1
644 NW Broadway St.
Bend, OR 97701
STAFF: Anthony Raguine, Senior Planner
I. APPLICABLE CRITERIA:
Title 18, Deschutes County Zoning Ordinance
Chapter 18.04, Definitions
Chapter 18.56, Surface Mining Impact Area Combining Zone - SMIA
Chapter 18.60, Rural Residential Zone - RR -10
Chapter 18.84, Landscape Management Combining Zone - LM
Chapter 18.88, Wildlife Area Combining Zone - WA
Chapter 18.116, Supplementary Provisions
Chapter 18.124, Site Plan Review
Chapter 18.128, Conditional Use
Title 17 of the Deschutes County Code, Subdivision and Partition Ordinance
Chapter 17.16, Approval of Subdivision Tentative Plans and Master
Development Plans
Chapter 17.36, Design Standards
Chapter 17.44, Park Development
Chapter 17.48, Design and Construction Specifications
Title 22, Deschutes County Development Procedures Ordinance
OAR -660-004-0040
ORS 92.192
11. BASIC FINDINGS:
A. LOCATION: The subject property includes a number of properties as described
below:
1. 63344 Palla Lane; Assessor map 17-11-13, tax lot 601
2. 63580 Johnson Road; Assessor map 17-11-13, tax lot 817
3. 19436 Klippel Road; Assessor map 17-11-13, tax lot 820
4. 19276 Klippel Road; Assessor map 17-11-13, tax lot 823
5. 63305 Palla Lane; Assessor map 17-11-13, tax lot 824
6. 63410 Palla Lane; Assessor map 17-11-13, tax lot 825
7. 63380 Palla Lane; Assessor map 17-11-13, tax lot 826
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8. 19210 Klippel Road; Assessor map 17-11-13, tax lot 828
9. No assigned address; Assessor map 17-11-13, tax lot 829
10. 19214 Buck Drive; Assessor map 17-11-13, tax lot 2700
11. 63566 Johnson Road; Assessor map 17-11-14, tax lot 11401
12. 19190 Klippel Road; Assessor map 17-11-14, tax lot 11600
B. ZONING: The subject property is zoned Rural Residential ("RR -10") and is within the
Wildlife Area ("WA") Combining Zone protecting the Tumalo Deer Winter Range.
Portions of the property are located within the Landscape Management ("LM")
Combining Zones associated with Tumalo Creek to the east and Johnson Road to the
west. Portions of the property are located in a Surface Mining Impact Area ("SMIA")
Zone due to the property's proximity to Surface Mine Site 293 (17-11-12, tax lots 600,
700 and 800)2. The property is designated Rural Residential Exception Area (RREA) on
the Deschutes County Comprehensive Plan map.
C. LOT OF RECORD: The subject property is comprised of legal lots of record pursuant
to lot of record determinations LR -90-158, LR -05-8, 247 -14 -000342 -LR and 247 -16-
000761 -LR. The boundaries of most of the legal lots of record have been modified to
their current configuration through numerous property line adjustments including
LL -06-7, LL -08-74, LL -08-75, LL -08-76, LL -11-4, LL -11-5, LL -11-6, LL -11-7, LL -11-18, LL -
13 -46, LL -13-47, LL -13-48, LL -13-49, LL -13-51, LL -13-52, 247 -14 -000307 -LL).
D. SITE DESCRIPTION: The subject property for the south reservoir ROF is
approximately 20.002 acres in size. The subject property for the north reservoir ROF
is approximately 12.11 acres in size and is irregular in shape. The subject property
for the planned development is approximately 104.68 acres. Tax lots 820, 824, 828
and adjoining properties were the site of the Klippel Surface Mine (former Surface
Mine Site 294) previously zoned Surface Mining (SM). When mining and reclamation
of Site 294 was completed, the mine was rezoned RR -10. The combined properties
have over 55 acres of groundwater irrigation water rights administered by the Tumalo
Irrigation District ("TID"). The property is now developed with two man-made, lined
reservoirs filled with water. KC Development Group, LLC ("KCDG") and its contractors
performed this work in 2014 on two surface mining pits to re -grade and re -contour
the pits. Primary access to the property is from a private driveway connecting to
Johnson Road. There is also a "ditch rider" road near the west boundary on the
property that provides access to TID irrigation facilities.
The smaller of the two reservoirs north reservoir) is located in the northeastern
portion of tax lot 828 and the western portion of tax lot 820, is round in shape, and
2 The surface mine known as the Cake Pit, the east, is governed by Title 19, which does not include a
SMIA Combining Zone. Therefore, no portion of the property is burdened by a SMIA Zone associated
with the Cake Pit.
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has a capacity of approximately 57 acre-feet of water. The north reservoir has been
improved with three docks and is proposed to be used for passive recreation
including swimming, kayaking, paddle boarding, fishing and non -motorized boating
(collectively, "Passive Recreation"). These passive uses were determined, by the
Deschutes County Board of Commissioners ("BOCC"), to be allowed without
conditional use approval in Files 247 -14 -000 -238 -PS, 247-14-000274-A, 247-14-
000452-A, and 247-14-000453-A. The BOCC adheres to it prior decision regarding this
issue.
The larger reservoir (south reservoir) is located on tax lots 824 and 828 and has a
capacity of approximately 68 acre-feet of water. The south reservoir is long and
narrow. It has two round man-made islands, one at each end, to facilitate motorized
boating use, including waterskiing, wake boarding and wake surfing as well as Passive
Recreation. At its north end, the south reservoir has a small harbor consisting of a
boat ramp, dock, and pilings to support three proposed boat garages. Near the
southern end of the south reservoir are a weir and a head gate that could operate to
regulate the flow of water from TID's piped irrigation canal (Tumalo Feed Canal) into
the south reservoir. The undeveloped portion of the property has a vegetative cover
of scattered pine and juniper trees and native brush and grasses. The area
immediately surrounding both reservoirs is devoid of vegetation. Tanager and KCDG
have proposed to revegetate these areas.
After the subject property was mined and reclaimed, it was rezoned to RR -10 so that
it could be developed with the uses allowed in the RR -10 zoning district, such as the
proposed planned development and large acreage recreational facility.
E. PROPOSAL: The applicant proposes to establish an ROF3 requiring a conditional use
permit (247 -17 -000636 -CU), site plan review (247 -17 -000640 -SP), and landscape
management review (247 -17 -000641 -LM). The ROF approval requested for the south
reservoir is proposed to be used as a motorized boating facility, including for
waterskiing, wake boarding and wake surfing, as well as for Passive Recreation.
Although not required by the BOCC the applicant also requests approval of an ROF to
allow Passive Recreational uses of the north reservoir. Finally, the applicant proposes
to establish a ten -lot planned unit development ("PUD") requiring a conditional use
permit (247 -17 -000639 -CU), surface mining impact area review, and tentative plan
review (247 -17 -000637 -TP).
3 In the BOCC's decision on land use file numbers 247 -14 -000 -238 -PS, 247-14-000274-A, 247-14-
000452-A, and 247-14-000453-A (TID Land Use Compatibility Statement), the BOCC found that only
the south reservoir is a "recreation facility requiring large acreage", which consequently requires
conditional use permit approval. The BOCC found the north reservoir is not a "recreation facility
requiring large acreage", and does not require conditional use permit approval.
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The applicant proposes the following restrictions on the south reservoir:
1. Prohibit motorized activity during Winter Deer Range season;
2. Only one motorized boat may be on the south Pond at a time;
a. Other boats must be stored in the Boathouse or in the harbor area.
3. No jet skis allowed;
4. Operational hours limited to 7:OOam to 10:OOpm;
5. Adhere to all Deschutes County noise ordinance standards, found at DCC
Chapter 8.08;
6. Boat restrictions include:
a. Inboard engines only;
b. Self-contained engines with internal oil lubrication systems;
c. Stock mufflers or quieter;
d. Direct drive or V -drive transmission;
e. No two-stroke motors (prevents oil contamination);
7. No alcohol to be allowed on boats or used by skiers; and
8. All motor boat operators must carry the Oregon mandatory boater education
card.
The PUD will be a planned community with CC&Rs and an owners' association. The
CC&Rs and the association include the ten proposed new lots and the open space
areas only. The use of the PUD open space will also be controlled by the Wildlife
Habitat Management Plan (WHMP) to protect and enhance the value of this property
for use as deer winter range. The applicant has also proposed an Easement &
Maintenance Agreement ("EMA") that is not directly required by DCC for the PUD but
that will act to limit the number of properties that may use the ROF and that assures
fair share contributions to maintain the use of the ROF.
On October 12, 2017, property line adjustment applications 247 -17 -000625 -LL, 626 -
LL, 628 -LL, 630 -LL, 631 -LL, 632 -LL, 633 -LL and 634 -LL were withdrawn. The application
materials for these applications remained a part of the record to allow the County to
make a determination that it is feasible for the applicant to obtain approval of the
requested adjustments. The site plan and tentative plan illustrating the ROF, PUD,
and final property line configurations is attached to this decision as Exhibit A.
The applicant concurrently applied for a conditional use permit (247 -17 -000627 -CU)
and Comprehensive Plan amendment (247 -17 -000629 -PA) to authorize surface
mining/excavation in conjunction with an irrigation district to create reservoirs and to
add the properties containing the reservoirs to the County's non-significant mineral
and aggregate inventory. The BOCC is issuing a concurrent but separate approval of
these applications (the "Excavation Decision").
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F. SURROUNDING LAND USE: The subject property is adjacent to the Klippel Acres
unplatted subdivision which is zoned RR -10 and WA, and developed with rural
residences on lots with a typical lot size of five acres. Tumalo Creek adjoins the
property to the east along tax lots 601, 825, 826 and 827. To the west is Johnson Road
and the Saddleback Subdivision zoned RR -10 and WA, and developed with rural
residences on lots ranging in size from about 2 to 5 acres. Also to the west are TID's
piped Tumalo Feed Canal and the associated ditch rider road. Two active surface
mines are located within a quarter mile of the subject property. Approximately 1,700
feet to the north is SM Site 293. Approximately 350 feet to the east is SM Site 308,
known as the Cake Pit. Land zoned Exclusive Farm Use ("EFU") is located to the north
and is engaged in small-scale farming consisting of hay production and livestock
grazing on irrigated pasture. To the northwest are lands zoned Forest Use ("F2") that
are primarily undeveloped. Aerial photographs provided in the County's GIS show
surrounding land is characterized by a moderate to dense tree cover in most
residential areas, open pasture areas and large denuded surface mining areas. Some
small ponds are located in the surrounding area on residential and surface mine
properties.
G. PUBLIC AGENCY COMMENTS: The following comments were received from public
agencies.
Deschutes County Building Division. The Deschutes County Building Safety Divisions
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 Code Enforcement. After reviewing each of the properties listed
[in the Notice of Application], I can confirm that there are no pending code
enforcement cases at this time.
Deschutes County Environmental Soils Division. Each lot or parcel of the proposed
subdivision will require a complete and approved site evaluation before final plat
approval. Detailed locations of proposed lot lines, test pit locations and proposed
systems will be necessary to properly complete each evaluation. Proposed lots that
may be previously existing will need complete approved site evaluations as well.
Deschutes County Senior Transportation Planner. I have reviewed the transmittal
materials for 247-17-000625-LL/626-LL/628-LL/632LL/634-LL/636-CU/637-TP/639-
CU/640-SP/641-LM to develop a water ski lake and ten -lot subdivision in the Rural
Residential (RR -10), Surface Mining (SMIA), Landscape Management (LM), and Wildlife
Area zones at the following location on 63344, 63305, 63410, and 63380 Palla Lane;
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Document No. 2018-596 Page 6
19436; 19276;19210; and 19190 Klippel Road; 63580 and 63566 Johnson Road;,19214
Buck Drive; and one lot with no assigned addressed aka 17-11-13, Tax Lots 601, 817,
820, 823, 824, 825, 826, 828,829, 2700, 11600 and 17-11-14, Tax Lot 11401.
I have reviewed the submitted traffic analysis and agree with its methodology,
conclusions, and recommendations with one minor exception. On page 5 of the June
23, 2017, Site Traffic Report, Kittelson uses a 45-50 mph speed on Johnson Road when
assessing sight distance. The County's practice has been to use 55 mph for other
rural roads when reviewing sight distance. Staff requests the applicant redo the sight
distance assessment based on 55 mph. The County agrees 25 mph for Buck Drive is
appropriate.
Board Resolution 2013-020 sets a transportation system development charge (SDC)
rate of $3,937 per p.m. peak hour trip. County staff has determined a local trip rate
of 0.81 p.m. peak hour trips per single-family dwelling unit; therefore the applicable
SDC is $3,189 ($3,937 X 0.81). The SDC is due prior to issuance of certificate of
occupancy; if a certificate of occupancy is not applicable, then the SDC is due within
60 days of the land use decision becoming final.
Deschutes County Road Department
I have reviewed the application materials for the above -referenced file number,
proposing a recreation facility and a ten -lot subdivision for a tract of land including
on 63344, 63305, 63410, and 63380 Palla Lane; 19436, 19276, 19210, and 19190
Klippel Road; 63580 and 63566 Johnson Road;,19214 Buck Drive; and one lot with no
assigned address (Tax Lot #17111300829). My comments are as follows:
• All proposed private roads and public road improvements shall be designed
and constructed in accordance with Deschutes County Code (DCC) 17.48 and
American Association of State Highway and Transportation Official standards.
• Surface drainage systems shall be designed to prevent adverse impacts to
public streets (DCC 18.124.060(F)).
• Road construction plans, which will include the intersection improvements at
the intersections of the private roads with Johnson Road and Buck Drive, shall
be approved by County Road Department prior to commencement of
construction within the County right of way (DCC 17.48.060). The construction
plan review fee of $250 shall be received by the County Road Department prior
to approval. A copy of the final plans with all required signatures shall be
provided to the County Road Department upon approval by all agencies.
• The applicant shall construct all road improvements under the inspection and
approval of the County Road Department (DCC 17.48.200). The applicant may
provide a letter to the Department from a professional engineer certifying that
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Document No. 2018-596 Page 7
the improvements were constructed in accordance with the improvement
plans approved by the County (DCC 17.40.040, ORS 92.097).
• Page 5 of the June 23, 2017 Site Traffic Report by Kittelson & Associates
incorrectly states the required minimum intersection sight distances for the
proposed private road connecting to Johnson Road. The design speed for
Johnson Road shall be 55 MPH, and, pursuant to Tables 9-6 and 9-8 ofA Policy
on Geometric Design of Highways and Streets (AASHTO, 2011), the required
minimum intersection sight distances are 610 feet for a left tum from stop and
530 feet for a right turn from stop. The applicant will need to confirm that the
minimum sight distance requirements are met.
Bend Fire Department.
Project #: 247-17-000625, 626, 628, 632, 634, 636, 637, 639, 640, 641
Subject: Recreation facility (water ski lake), and ten -lot residential subdivision. Palla
Lane, Johnson Road, Klippel Road, Buck Drive, and unassigned addresses included.
From: Jeff Bond, Bend Fire Department
Date: 8/21/17
Note: These comments are for residential and commercial uses. Use sections as
applicable for structures as developed.
FIRE APPARATUS ACCESS ROADS:
• Approved vehicle access for fire fighting shall be provided to all construction
or demolition sites. Vehicle access shall be provided to within 100 feet of
temporary or permanent fire department connections. Vehicle access shall be
provided by either temporary or permanent roads, capable of supporting
vehicle loading under all weather conditions. Vehicle access shall be
maintained until permanent access roads are available. 2014 OFC 3310.1
• Approved fire apparatus access roads shall be provided for every facility,
building or portion of a building hereafter constructed or moved into or within
the jurisdiction. The fire apparatus access road shall comply with the
requirements of this section and shall extend to within 150 feet of all portions
of the facility and all portions of the exterior walls of the first story of the
building as measured by an approved route around the exterior of the building
or facility. 2014 OFC 503.1.1
Fire apparatus roads shall have an unobstructed width of not less than 20 feet,
exclusive of shoulders, except for approved security gates in accordance with
Section 503.6, and an unobstructed vertical clearance of not less than 13 feet
6 inches. Where a fire hydrant is located on a fire apparatus road, the
minimum width shall be 26 feet, exclusive of shoulders. Traffic calming along
a fire apparatus road shall be approved by the fire code official. Approved
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Document No. 2018-596 Page 8
signs or other approved notices or markings that include the words NO
PARKING -FIRE LANE shall be provided for fire apparatus roads to prohibit
parking on both sides of fire lanes 20 to 26 feet wide and on one side of fire
lanes more than 26 feet to 32 feet wide. 2014 OFC 503.2.1, D103.1, 503.4.1,
503.3
• Fire apparatus access roads shall be designed and maintained to support the
imposed loads of fire apparatus (60,000 pounds GVW) and shall be surfaced
(asphalt, concrete or other approved driving surface) as to provide all weather
driving capabilities. Inside and outside turning radius shall be approved by the
fire department. All dead-end turnarounds shall be of an approved design.
Bridges and elevated surfaces shall be constructed in accordance with
AASHTO HB -17. The maximum grade of fire apparatus access roads shall not
exceed ten percent. Fire apparatus access road gates with electric gate
operators shall be listed in accordance with UL325. Gates intended for
automatic operation shall be designed, constructed and installed to comply
with the requirements of ASTM F 2200. A Knox® Key Switch shall be installed
at all electronic gates. 2014 OFC D102.1, 503.2.4
• Buildings exceeding three stories or 30 feet in height shall have at least two
means of fire apparatus access for each structure. Buildings or facilities having
a gross building area of more than 62,000 square feet shall be provided with
two separate and approved fire apparatus access roads. Where two access
roads are required, they shall be placed a distance apart equal to not less than
one half the length of the maximum diagonal dimension of the property or
area to be served, measured in a straight line between accesses. 2014 OFC
D104
• Buildings or portions of buildings or facilities exceeding 30 feet in height above
the lowest level of fire department vehicle access shall be provided with
approved fire apparatus access roads capable of accommodating fire
department aerial access apparatus. Overhead utility and power lines shall
not be located within the aerial apparatus access roadway. 2014 OFC D105
• Multiple -family residential developments have more than 100 dwellings and
one- or two-family residential developments where the dwelling units exceed
30 shall be provided with separate and approved fire apparatus access roads.
2014 OFC D106, D107
FIRE PROTECTION WATER SUPPLIES:
• An approved water supply capable of supplying the required fire flow for fire
protection shall be provided to premises upon which facilities, buildings or
portions of buildings are hereafter constructed or moved into or within the
jurisdiction. 2014 OFC 507.1
• Fire flow requirements for buildings or portions of buildings shall be
determined by an approved method. Documentation of the available fire flow
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Document No. 2018-596 Page 9
shall be provided to the fire code official prior to final approval of the water
supply system.
• Where a portion of the facility or building hereafter constructed or moved into
or within the jurisdiction is more than 400 feet from a hydrant on a fire
apparatus road, as measured by an approved route around the exterior of the
facility or building, on-site fire hydrants and mains shall be provided where
required by the fire code official. For Group R-3 and Group U occupancies the
distance requirement shall 600 feet. For buildings equipped throughout with
an approved automatic sprinkler system installed in accordance with Section
903.3.1.1 or 903.3.3.1.2, the distance requirement shall be 600 feet. Fire
hydrants shall be provided along required fire apparatus roads and adjacent
public streets. The minimum number of fire hydrants shall not be less than
that listed in table C105.1 of the 2010 OFC. Existing fire hydrants on public
streets are allowed to be considered as available. Existing fire hydrants on
adjacent properties shall not be considered available unless fire apparatus
access roads extend between properties and easements are established to
prevent obstruction of such roads. The average spacing between fire hydrants
shall not exceed that listed in Table C105.1 of the 2014 OFC.
• ORS 811.550(16) prohibits parking within 10 feet of a fire hydrant. Provide
approved signs or other approved markings to prohibit parking within 10 feet
of a fire hydrant. OAR 860-024-0010 limits the placement of a fire hydrant a
minimum of 4 feet from any supporting structure for electrical equipment,
such as transformers and poles. Maintain a minimum 4 foot clearance of fire
hydrants to any supporting structure for electrical equipment. Where fire
hydrants are subject to impact by a motor vehicle, guard posts or other
approved means shall comply with Section 312 of the 2014 OFC.
• In areas without water supply systems, the fire code official is authorized to
use NFPA 1142 in determining fire flow requirements. 2014 OFC B107.1
OTHER FIRE SERVICE FEATURES
• New and existing buildings shall have approved address numbers, building
numbers or approved building identification placed in a position that is plainly
legible and visible from the street or road fronting the property. These
numbers shall be Arabic numbers or alphabetical letters. Numbers shall be a
minimum 4 inches high with a minimum stroke width of 0.5 inch. Where
access is by means of a private road and the building cannot be viewed from
the public way, a monument, pole, or other sign or means shall be used to
identify the structure. Address numbers shall be visible under low light
conditions and evening hours. Provide illumination to address numbers to
provide visibility under all conditions. Address signs are available through the
Deschutes Rural Fire Protection District #2. An address sign application can
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Document No. 2018-596 Page 10
be obtained from the City of Bend Fire Department website or by calling 541-
388-6309 during normal business hours. 2014 OFC 505.1
• A KNOX-BOX® key vault is required for all newly constructed commercial
buildings, facilities or premises to allow for rapid entry for emergency crews.
A KNOX® Key Switch shall be provided for all electrically operated gates
restricting entry on a fire apparatus access road. A KNOX® Padlock shall be
provided for all manually operated gates restricting entry on a fire apparatus
road and security gates restricting access to buildings. 2014 OFC Section 505
• Emergency responder radio coverage must be provided in all buildings with
one or more basement or below -grade building level, any underground
building, any building more than five stories in height, any building 50,000
square feet in size or larger. Approved radio coverage for emergency
responders within the building is based upon the existing coverage levels of
the public safety communication system of the City of Bend Fire Department
at the exterior of the building. 2014 OFC Section 510
• Fire department connections shall be installed in accordance with the NFPA
standard applicable to the system design. With respect to hydrants,
driveways, buildings and landscaping, fire department connections shall be so
located that fire apparatus and hose connected to supply the system will not
obstruct access to buildings for other fire apparatus. The location of the fire
department connections shall be approved by the fire chief. Immediate access
to fire department connections shall be maintained at all times and without
obstruction by fences, bushes, trees, walls or any other fixed or moveable
object. Access to fire department connections shall be approved by the fire
chief. 2014 OFC Section 912
Codes and Referenced Standards:
2014 Oregon Fire Code (OFC)
2012 NFPA 1142
Oregon Department of Fish and Wildlife. The purpose of this letter is to provide
Oregon Department of Fish and Wildlife (Department) comments on the conditional
use application from KC Development Group (KCDG) to establish a recreational facility
(water ski lake) and 10 -lot subdivision on 104.68 acres.
The Department is mandated by State Statute to manage fish and wildlife resources
to prevent serious depletion of indigenous species and to provide optimum
recreational and aesthetic benefits for present and future generations of the citizens
of Oregon (ORS 496.012).
Department comments on previous land use applications for this property can be
found in letters dated June 29, 2015 and September 17, 2015. As stated in these
letters, the property for which the KCDG has submitted an application is within the
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Document No. 2018-596 Page 11
Deschutes County Wildlife Area Combining Zone as well as the Tumalo Deer Winter
Range. Deer and other wildlife in this area are particularly vulnerable to human
disturbance during the winter when food resources are scarce and temperatures are
often below freezing. Thus, the concerns that the Department outlined previously in
the above letters still exist.
In addition, under the Department's Fish and Wildlife Habitat Mitigation Policy (OAR
635-415), deer/big game winter range is classified as Category 2. Category 2 habitat
is defined as "essential and limited" and its loss should be mitigated with a goal of
providing "no net loss of habitat quantity or quality and to provide a net benefit of
habitat quantity or quality".
The Department has reviewed the application materials including the Burden of
Proof, Wildlife Habitat Management Plan (WHMP) and the Declaration of Protective
Covenants, Conditions, and Restrictions (CC&Rs) and has the following comments:
• In keeping with the Mitigation Policy, the Department requests that KCDG
develop an off-site mitigation plan to compensate for the loss of winter range
at a ratio of 3:1. An example of an appropriate mitigation strategy would be
to work with the Forest Service to improve 314 acres of winter range habitat
in proximity to KCDG's property.
• Section 4.2.6 of CC&Rs under LOTS AND HOMES should be amended to state
that all fencing must comply with the fencing standards in Deschutes County
Code 18.88.060.
• Section 4.5 of CC&Rs under LOTS AND HOMES should be amended to state
that native landscaping should be >50% of each residential lot. In addition,
Exhibit AA (Landscape Plan) should be amended to deemphasize the use of
turf around homes.
• Section 4.10 of CC&Rs under LOTS AND HOMES should be amended to state
that allowing domestic animals to harass wildlife is prohibited.
Section 5.2 of CC&Rs under OPEN SPACE should be amended to state that
domestic animals in the Open Space shall be leashed.
The Department is concerned about the applicant's proposal to move topsoil
from portions of the area preserved as Open Space for wildlife. The stated
purpose is for rehabilitating the area around the south reservoir but this
action has the potential to disturb a large portion of wildlife habitat that may
succumb to noxious weeds such as cheatgrass even if reseeded with native
plants. The Department recommends that the applicant obtain topsoil for the
south reservoir from outside the property.
The educational program referenced in the WHMP for residents and guests of
the Tanager Planned Development about wildlife and habitat maintenance
should be presented to the Department for review prior to finalization.
Regarding monitoring of the effectiveness of the WHMP:
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Document No. 2018-596 Page 12
➢ The Department recommends that the language in section 1.5.2 of the
Easement and Maintenance Agreement read as follows "The
Administrator shall hire a professional biologist to conduct an audit of
the compliance with the Wildlife Habitat Management Plan".
➢ The party implementing the wildlife habitat conservation measures (i.e.
Tanager Development L.L.C. or subsequent administrator) should
submit results of audit of compliance to the Department for review.
Finally, as this development will be occurring in deer winter range there will likely be
conflicts between wildlife and the residents of the subdivision. According to the
Department's Wildlife Damage Policy (2008), the Department may deny assistance for
control of damage if a "landowner created the wildlife conflict situation through a
categorical change in the use of the land since 1987 in recognized significant wildlife
habitat". Thus, the Department will not respond to future wildlife damage complaints
from residents of the subdivision.
No comments were received from the following agencies. Deschutes County
Property Address Coordinator, Oregon Department of Geology and Mineral
Industries, and Watermaster - District 11.
H. PUBLIC COMMENTS: The Planning Division sent notice of this application to property
owners within 250 feet of the subject property. In addition, the applicant submitted
a Land Use Sign Affidavit indicating the land use action sign was posted on the
property on September 6, 2017. A number of emails and letters were received in
response to the mailed and posted notices. Public comments have continued to be
filed before and during public hearings before the County's hearings officer and
BOCC, and during post -hearing comment periods.
Since much of the correspondence does not specify which file numbers the
comments were directed to, a summary of all comments received for this application
and the concurrent applications filed to establish the surface mining/excavation in
conjunction with an irrigation district and Plan Amendment are set forth herein.
Support
Design takes into consideration open space, flora, fauna, water needs,
firefighting needs, and neighboring properties
Beautification and appropriate re -use of mining pits
• No use of public or irrigation district funds to construct
• Model for private/public partnerships
• Increased wildlife presence in and around both reservoirs
• Integrity of the applicants
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• Sound study proves noise impacts will be minimal
• Noise from vehicles on Johnson Road, nearby surface mining activities, and
airplanes are louder than the noise generated from ski boats
• Protection of private property rights
• Residential development will provide additional buffering from nearby surface
mining activities
Opposition
• TID is not an applicant and the reservoirs were not built for the purpose of re -
regulation
• Both reservoirs and the westerly road4 were built without proper land use
approval
• Noise impacts from water skiing activity
• New private roads in a rural setting, specifically the proposed new access from
Buck Drive across the Hammock property to the project
• Negative impact to property values
• Danger to children due to new roads and traffic, and the ski lake
• Loss of trees and habitat
• Impact to wildlife
• Inappropriate intensity and density of development in a rural setting
• Presence of gnats due to proximity of both reservoirs
• Increased water evaporation due to large surface area of reservoirs
• Applications cannot be processed because they will not cure the previous
unpermitted construction activity
• Applications cannot be processed because of open code enforcement cases
on the subject property
Ski lake is an inappropriate use of water in a desert environment
Proposed residences may conflict with existing surface mining activity
This decision addresses the comments tied to applicable criteria in the Decision
below. The alleged concerns addressing use of the ponds for irrigation storage and
reregulation are addressed in the separate Excavation Decision.
I. LAND USE HISTORY:
° The westerly road/driveway was maintained pursuant to temporary use permit TU -14-8 which
allowed rock crushing on the subject property in association with private road maintenance and
landscaping. A part of the westerly road was moved. Road/driveway projects of this type are
permitted outright by DCC 18.60.020 (MUA-10 Zone) and DCC 18.88.030 (WA Zone). The applicant is
not relying on the "westerly" road solely to achieve compliance with WA Zone siting criteria.
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The land use history of the subject property is extensive. The relevant parts of that
history are discussed below.
Klippel Surface Mine. The subject property was formerly designated SM Site 294 and
was mined and reclaimed. It received reclamation approval from the Oregon
Department of Geology and Mineral Industries ("DOGAM I") on September 27, 2005.
In May of 2007, Harris Kimble applied for a plan amendment, zone change and goal
exception to redesignate SM Site 294 from Surface Mining ("SM") and Agriculture to
RREA, and to rezone the site from SM and Exclusive Farm Use-
Tumalo/Redmond/Bend Subzone (EFU-TRB) to RR -10. In a decision dated November
8. 2007, a County Hearings Officer approved the plan amendment, zone change and
goal exception (PA -07-2, ZC-07-2). The Hearings Officer's decision described the
rezoned property as follows:
"The subject property is approximately 160 acres in size and very irregular in shape.
A significant portion of the property has been disturbed due to previous surface
mining and reclamation activities. The disturbed area consists of reclaimed extraction
pits and berms created from overburden removed from the extraction sites. The
undisturbed portions of the property have varying topography and a mixture of
native vegetation including scattered stands of pine and juniper trees, as well as
native brush and grasses, and pasture grasses seeded as part of the surface mine
reclamation. Part of the eastern border of the subject property is located in the
canyon of Tumalo Creek and includes steep slopes and rock outcrops. The record
indicates the subject property has 58.91 acres of irrigation water rights administered
byTID...
The record indicates some of these water rights currently are leased for in -stream
use. There is a small irrigation ditch that traverses the subject property within an
easement."
In 2008, the BOCC approved the plan amendment, zone change and goal exception.
2013. KCDG purchased the majority of the subject property in October of 2013. On
October 8, 2013, staff from the County's Community Development Department
("CDD") met with representatives of KCDG and their then -attorney Tia Lewis to discuss
development of the subject property with a residential cluster development. No
development proposal was submitted at that time.
2014. On March 18 and 19, 2014, CDD received three code violation complaints
alleging that rock crushing, construction of a lake with a boat dock and fuel tanks, and
use of a private road were occurring on the subject property without required land
use approval. These complaints were investigated by Deschutes County Code
Enforcement Technician Tim Grundeman who concluded that no code violations had
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occurred. KCDG applied for a temporary use permit to allow rock crushing on the
subject property in association with private road maintenance and landscaping. On
April 2, 2014, CDD issued a temporary use permit for such use (TU -14-8). On June 4,
2014, CDD received another code violation complaint related to "unpermitted
activities" on the property.
On June 13, 2014, CDD staff, Deschutes County Assistant Legal Counsel John Laherty,
representatives of TID, TID's attorney William Hopp, and TID's and KCDG's attorney
Elizabeth Dickson met to discuss the need and process for obtaining a Land Use
Compatibility Statement ("LUCS") for TID's request to the Oregon Water Resources
Department ("WRD") for permission to transfer the place of use of TID's water storage
right from Upper Tumalo Reservoir to the subject property. On or about June 16,
2014, CDD Director Nick Lelack determined to treat any request for a LUCS submitted
by TID as a "land use action" and to process it according to the County's procedures
therefor.
On June 11, 2014, TID submitted to WRD an application (T-11833) to transfer the place
of use of a portion of TID's water storage right from Upper Tumalo Reservoir to the
two reservoirs on the subject property.
On June 17, 2014, KCDG submitted applications for a building permit (247-14-003315-
STR) and an electrical permit (247-14-003315-ELEC-01) for a boathouse and boat slip
on the southern reservoir. CDD staff advised KCDG that the County could not sign off
on the building or electrical permit while any LUCS request was pending. On June 19,
2014, CDD received a letter from Ken Rieck, TID Manager, explaining the need for the
transfer in place of use of its water storage right and TID's belief that the proposed
transfer is a use permitted outright in the RR -10 Zone.
On July 25, 2014, Deschutes County Assistant Legal Counsel John Laherty sent a letter
to KCDG Attorney Elizabeth Dickson stating in relevant part:
. .[T]o the extent KC Development Group LLC has expended, or intends to
expend, resources to create reservoirs, install footings for a dock or
boathouse, or otherwise perform work on the subject property that does not
require County approval, it does so at its own risk and without any guarantee
that future County permits or approvals - including, without limitation, land
use approval for construction of a cluster development or recreational lake, or
building division approval for construction of a boat house or dock - will be
granted.
The County has encouraged KC Development Group LLC and its principals to
apply for necessary land use approvals first - before devoting significant
resources to improving the property - so as to avoid the risk of commencing
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projects it will ultimately be unable to complete. Your client has chosen to
disregard this advice.
Please inform your client (again) that Deschutes County will review any future
land -use or building permit application on its own merits, and the County's
decision on such application will be governed solely by consideration of
appropriate criteria. Your client's decision to expend resources on
improvements prior to obtaining necessary County approval for his intended
development project will not be given undue weight or consideration in this
process."
On July 25, 2014, CDD staff and County legal counsel conducted a site visit to the
subject property at the request of neighboring property owners.
On August 4, 2014, TID submitted its LUCS request on a form provided by WRD. The
form stated TID intended to submit to WRD an application for a "water right transfer
- storage," and described the intended use of the water in relevant part as follows:
"This is an intra -district transfer in place of use of 108 a.f. [acre feet] of Tumalo Creek
Water. TID to TID (Storage water). The transfer of this storage water is necessary for
the operation and maintenance of our irrigation system, and allowed as an outright
use in the RR -10 Zone. The current site was built in the 1920's and no longer serves
TID's needs. The new site is a significant upgrade that will enable TID to reduce
dependence on Tumalo Creek for natural flow, provide emergency water supplies for
the District and Emergency Services responders, and provide increased efficiency in
the operations and maintenance of the TID system overall."
Attached to the LUCS form was a two-page letter dated June 19, 2014 from Ken Rieck,
to Nick Lelack describing the reason for the LUCS request.
By a letter dated August 6, 2014, Deschutes County Building Official Dave Peterson
issued a stop work order to KCDG for work performed on the boathouse foundation
on the southern reservoir without a building permit. The previously submitted
building and electrical permit applications were withdrawn by KCDG.
On August 13, 2014, Mr. Lelack completed and issued the WRD LUCS form by checking
the box stating:
"Land uses to be served by the proposed water uses (including proposed
construction) are allowed outright or are not regulated by your comprehensive
plan. Cite applicable ordinance section(s):"
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Mr. Lelack attached to the form a three-page "Notice of Decision" dated August 13,
2014. The decision cited Section 18.60.020(1) listing "operation, maintenance, and
piping of existing irrigation systems operated by an Irrigation District," and included
the following findings:
"According to information provided by Tumalo Irrigation District, TID 'has
decided to move its Regulation Pond storage to [the Klippel Mining Pit] a site
upstream from our current in -district storage at Tumalo Reservoir.' TID states
that the existing Reservoir 'was designed and built in the 1920's and does not
adequately serve TID's needs,' and that the new site 'will be a significant
upgrade to operations and maintenance.' The Planning Director finds that
transferring in -district storage from the Tumalo Reservoir upstream to the
Klippel Acres Mining Pit in order to improve the operations of TID's existing
irrigation system is a use permitted outright in this zone."
On August 22, 2014, opponents Thomas and Dorbina Bishop, Trustees for the Bishop
Family Trust ("Bishops"), filed an appeal from the LUCS. The appeal was referred to
Hearings Officer Karen Green for hearing.
On September 16, 2014, CDD received a code violation complaint for construction of
a new road on the subject property. The complaint was again investigated by Tim
Grundeman who found no code violation. On September 22, 2014, CDD received a
code violation complaint regarding waterskiing occurring on the southern reservoir.
On September 25, 2014, TID filed with WRD a notice of intent to change the location
of a portion of its water right to the reservoirs on the subject property (T-11951).
On October 3, 2014, the Hearings Officer conducted a site visit to the subject property
and vicinity accompanied by Senior Planner Anthony Raguine. On October 7, 2014,
the Hearings Officer held a public hearing on the appeal. At that hearing, the Hearings
Officer disclosed personal observations and impressions from the site visit.
On October 7, 2014, Hearings Officer Green held a public hearing on the appeal.
On October 10, 2014, CDD issued a Notice of Violation to KCDG for operating a
"recreation -oriented facility requiring large acreage" without land use approval.
On December 15, 2014, the Hearings Officer issued a decision on the LUCS appeal,
holding in relevant part that:
"1. The [C]ounty incorrectly categorized TID's proposed use on the WRD
LUCS form as a use allowed without review.
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2. The [C]ounty erred in issuing a LUCS decision finding TID's proposed
use was allowed without review.
3. The [C]ounty's LUCS decision is reversed and remanded for the CDD
Director to reissue the WRD LUCS form and the LUCS decision to categorize
TID's proposed use as one involving discretionary land use approval(s) that
have not yet been obtained - i.e., the conditional use of surface mining for
reservoirs in conjunction with operation and maintenance of irrigation
systems under Section 18.60.030(W), and/or a recreation -oriented facility
requiring large acreage under Section 18.60.030(G)."
Both TID and the Bishops appealed the Hearings Officer's decision to the BOCC .
2015. On January 7, 2015, by Order No. 2015-009, the BOCC accepted TID and the
Bishops' appeals of the Hearings Officer's LUCS decision and elected to consolidate
them into a single de novo proceeding. On January 29, 2015 the BOCC held a public
hearing on the appeals. On April 8, 2015, the BOCC issued its decision affirming the
Hearings Officer's decision. On April 24, 2015, Nick Lelack re -issued the WRD LUCS
form and checked the box stating:
"Land uses to be served by the proposed water uses (including proposed
construction) involve discretionary land use approvals as listed in the table
below. (Please see attached documentation of applicable land use approvals
which have already been obtained. Record of Action/land use decision and
accompanying findings are sufficient.) If approvals have been obtained but all
appeal period have not ended, check "Being pursued." (Bold emphasis in
original.)
The table on the LUCS form listed conditional use permits as required to establish a
recreation facility and for surface mining. The BOCC's and the Hearings Officer's
decisions were attached to the re -issued LUCS.
On April 8, 2015, the BOCC issued its decision affirming the Hearings Officer's
decision. On April 24, 2015, Nick Lelack re -issued the WRD LUCS form and indicating
that uses to be served by the proposed water uses (including proposed construction)
involve discretionary land use approvals. The table on the LUCS form listed required
conditional use permits to establish a recreation facility and for surface mining. The
BOCC's and the Hearings Officer's decisions were attached to the re -issued LUCS.
On April 29, 2015, WRD issued two orders concerning TID's request for permission to
transfer the place of use of part of its water right from Upper Tumalo Reservoir to the
reservoirs on the subject property. WRD denied TID's application (T-11833) for a
temporary transfer in place (Special Order Volume 95, Pages 1018-1025). It also
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denied TID's request for approval of a permanent transfer in place (Special Order
Volume 95, Pages 1026-1032). The stated reason for WRD's denials was that land use
approval was required for the transfer and TID had not obtained it.
On April 29, 2015, KCDG and TID jointly applied for conditional use approval to make
lawful previous surface mining that created the two reservoirs on the property along
with a variance from the RR -10 Zone setbacks to allow the south reservoir to cross a
property line. The applicants also requested conditional use, site plan and landscape
management approval to establish a recreation facility requiring large acreage for
water-skiing.'
In May of 2015, KCDG, TID and the Bishops filed appeals with the Land Use Board of
Appeals ("LUBA") from the board's LUCS decision, and from Nick Lelack's re -issuance
of the WRD LUCS form, stating additional land use review was required for the
reservoirs.
On May 14, 2015, a code violation complaint was filed alleging unpermitted
construction on the subject property including piping and concrete work. On May 15,
2015, TID's and KCDG's attorney Ken Katzaroff submitted an affidavit from Robert
Varco, TID's Field Supervisor, describing the nature and purpose of the construction
work. According to the affidavit, the construction was to replace an existing concrete
weir in order to improve TID's existing water delivery system. Mr. Varco stated TID
installs approximately 20 new or replacement weirs in its system each year. On May
18, 2015, Senior Planner Anthony Raguine and Code Enforcement Technician John
Griley met with Harris Kimble on the subject property to investigate the construction.
Based on the investigation and Mr. Varco's affidavit, the County determined this
construction work did not require building or electrical permits, and that the work
was allowed outright under Section 18.60.020(1) of the Deschutes County Code as the
"operation, maintenance, and piping of existing irrigation systems operated by an
Irrigation District." The code enforcement case was closed.
On September 9, 2015, LUBA issued its decision on TID's/KCDG's and the Bishops'
appeals from the County's LUCS decisions. Bishop v. Deschutes County, _ Or LUBA
(LUBA No. 2015-027, 2015-028, and 2015-030; September 9, 2015). TID's/KCDG's
appeals included motions to dismiss all appeals, and the Bishops' appeals included a
motion to transfer its appeals to the Deschutes County Circuit Court on the basis that
LUBA lacked jurisdiction to hear the appeals. LUBA held:
1. The BOCC correctly found both TID/KCDG and the Planning Director
mischaracterized the nature of the use for which the LUCS was requested;
5 Land use file numbers 247 -15 -000226 -CU, 227 -CU, 228 -LM, 383 -MA, 384 -SP, 385-V.
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2. The Planning Director did not err in re -issuing the LUCS stating land use
approval for the reservoirs was required;
3. LUBA lacked jurisdiction to hear the appeals because they are excluded from
LUBA jurisdiction under ORS 197.015(10)(b)(H)(iii);"
4. The Bishops' LUBA appeals were transferred to the Deschutes County Circuit
Court based on the Bishops' motion for transfer; and
5. TID's/KCDG's appeals were dismissed because they did not timely file a motion
for transfer to the circuit court.
On April 29, 2015, KCDG and TID jointly applied for conditional use approval to make
lawful previous surface mining that created the two reservoirs on the property along
with a variance from the RR -10 Zone setbacks to allow the south reservoir to cross a
property line. The applicants also requested conditional use, site plan and landscape
management approval to establish a recreation facility requiring large acreage for
water-ski i ng.6
2016. On January 21, 2016, a County Hearings Officer denied the applications for
surface mining and the recreation facility. The Hearings Officer's decision was
subsequently appealed to the BOCC which declined review in Board Order 2016-010.
The Bishops appealed the Hearings Officer's decision to LUBA (LUBA 2016-023).
KCDG and TID filed a Joint Motion to Dismiss. Subsequently, the Bishops filed a
Motion to Withdraw the Notice of Intent to Appeal and Dismiss Appeal. Based on the
Bishops' request, LUBA dismissed the appeal.
In June of 2016, TID and KCDG informed the County that for the time being they
suspended an agreement between TID and KCDG allowing use of the reservoirs for
irrigation district purposes. The agreement between TID and KCDG, however, was
recorded against the KCDG property and could be reinstated. At that time, KCDG also
agreed to cease motorized boating activity. Based on these representations, the
County closed the code enforcement case on the property.
On November 30, 2016, KCDG applied for a LUCS for "one time fill plus 44 feet per
year in mitigation water to be stored in 2 ponds by [KCDG] for landscape aesthetics,
emergency fire protection, and temporary pass through irrigation water for personal
irrigation use by [KCDG] ('bulge in system')."
6 Land use file numbers 247 -15 -000226 -CU, 227 -CU, 228 -LM, 383 -MA, 384 -SP, 385-V.
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On December 14, 2016, the County issued the LUCS checking the box marked "Land
uses to be served by the proposed water uses (including proposed construction) are
allowed outright or are not regulated by your comprehensive plan." Further, the
County included the following statement on the LUCS, "The Deschutes County Zoning
Code does not regulate the use of water to be stored in 2 ponds for aesthetic
landscaping, emergency fire protection, or pass-through irrigation for the property
owner."
On December 22, 2016, the Bishops attempted to file a local appeal of LUCS 247 -16-
000748 -PS. On December 30, 2016, the County informed the Bishops that the LUCS
decision was a development action which is only appealable by the applicant, his or
her representatives, and his or her witnesses, pursuant to DCC 22.32.050.
2016-2017. In late 2016 and the first part of 2017, KCDG sought to obtain approval of
new LUCs statements for WRD water permit applications listing the proposed uses as
permitted outright. These efforts were unsuccessful and abandoned by KCDG.
2017. On January 4, 2017, in response to the County not accepting the Bishops
request for appeal of the LUCS, the Bishops filed a Notice of Intent to Appeal (LUBA
2017-002). On the same day, in response to the County issuing the LUCS, the Bishops
filed a precautionary Notice of Intent to Appeal (LUBA 2017-003). LUBA consolidated
both appeals.
In response to the LUBA appeals, the County and KCDG jointly filed a Motion to
Dismiss for Lack of Jurisdiction. On March 21, 2017, LUBA denied the motion to
dismiss both appeals.
On January 10, 2017, KCDG applied for a LUCS for "Limited license to provide
temporary authorization while awaiting Department approval of Groundwater permit
application G-18422, authorizing storage of water in two ponds for fire protection,
aesthetic and pass through irrigation water."
On January 12, 2017, the Bishops attempted to submit materials into the record for
LUCS 247 -17 -000016 -PS. On January 18, 2017, Central Oregon Landwatch also
attempted to submit materials into the record for this LUCS. Via email dated January
31, 2017, the County informed both the Bishops and Central Oregon LandWatch that
the County rejected both submissions and would not consider the materials in
making a decision on the LUCS.
On February 7, 2017, the County issued the LUCS checking the box marked "Land uses
to be served by the proposed water uses (including proposed construction) are
allowed outright or are not regulated by your comprehensive plan." Further, the
County included the following statement on the LUCS, "The Deschutes County Zoning
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Document No. 2018-596 Page 22
Code does not regulate the use of water to be stored in 2 ponds for aesthetic
landscaping, emergency fire protection, or pass-through irrigation for the property
owner."
On February 16, 2017, the Bishops attempted to file a local appeal of LUCS 247 -17-
000016 -PS. On February 17, 2017, the County informed the Bishops that the LUCS
decision was a development action which is only appealable by the applicant, his or
her representatives, and his or her witnesses, pursuant to DCC 22.32.050(K).
On July 28, 2017, KCDG applied for a Limited Water Use License LUCS7 for "[o]ne time
fill plus 44 acre-feet per year to be stored in 2 ponds for aesthetics, emergency fire
protection, temporary pass-through for private irrigation ("bulge in the system") and
for recreation purposes." On the same day, KCDG applied for a separate Permit to
Use or Store Water LUCS also for "One time fill plus 44 acre-feet per year to be stored
in 2 ponds for aesthetics, emergency fire protection, temporary pass-through for
private irrigation ("bulge in the system") and for recreation purposes."
On August 17, 2017, the County issued both LUCS forms by checking the box "Land
uses to be served by the proposed water uses (including proposed construction)
involve discretionary land -use approvals as listed in the table below." In the LUCS
table, the County indicated the following land use approvals were being pursued by
KCDG: comprehensive plan amendment, tentative plat, conditional use, site plan, lot
line adjustments, surface mining impact area review and landscape management
review. This LUCS decision was not appealed and is now a final decision.
J. PROCEDURAL HISTORY AND REVIEW PERIOD: The subject applications were
submitted on July 28, 2017. The applications were deemed complete on August 25,
2017. The applications were referred to an initial hearing on October 23, 2017 with a
County Hearings Officer, who issued a decision on February 7, 2018. Separate
appeals of the Hearings Officer's decision were filed by the applicant, the Bishops,
and Central Oregon LandWatch. The BOCC accepted review of the appeals and
conducted a public hearing on April 12, 2018. On May 2, 2018, during the post -
hearing written record period, the Bishops submitted an objection to the record,
arguing the applicants submitted "new evidence" during the rebuttal period. On May
3, 2018, the County suspended all time limits and deadlines during the written record
period, to consider the record objection. On May 16, 2018, the BOCC issued Board
Order 2018-037 (Exhibit B) denying the Bishops' request to reject new evidence and
establishing a new deadline for the applicants' submittal of final legal arguments.
The applicant tolled the running of the 150 -day clock until August 24, 2018.
Land use file number 247 -17 -000623 -PS.
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K. EFFECT OF RELATED FINAL DECISION: On this day, the BOCC also issued the
separate but related Excavation Decision on the related land use applications (file
submitted by the applicant requesting after -the -fact approval of surface
mining/excavation in the RR -10 Zone and approval of a Post Acknowledgement Plan
Amendment ("PAPA") to authorize the excavation that created the reservoirs. File
Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA). The BOCC approved those
applications, which independently authorize the excavation and use of the ponds in
conjunction with an irrigation district, namely TID. Accordingly, while the excavation
of the ponds is authorized as "on-site construction" pursuant to the ROF, as detailed
below, the excavation is also authorized, separately, under the file numbers noted
above.
III. CONCLUSIONARY FINDINGS:
This decision adopts findings related to the applicable criteria to these land use applications.
SURFACE MINING DEFINITION
Mining in conjunction with uses allowed as a permitted or conditional use by the RR -10 zone
are allowed without land use approval if it is "on-site construction" exempted from the
definition of surface mining.
DCC 18.04.030 defines "surface mining" as follows:
A. Includes:
1. All or any part of the process of mining that includes removal of the overburden
and extraction of natural mineral deposits thereby exposed by any method
including, open pit mining operations, auger mining operations, processing,
surface impacts of underground mining, production of surface mining refuse and
the construction of adjacent or off-site borrow pits, except those constructed for
access roads; and
2. Mining which involves removal of more than 1,000 cubic yards of material or
excavation prior to mining of a surface area more than 1 acre in size.
B. Does not include:
1.
2. Excavation and crushing of sand, gravel, clay, rock or other similar materials
conducted by a landowner, contractor or tenant on the landowner's property for
the primary purpose of construction, reconstruction or maintenance of access
roads and excavation or grading operations conducted in the process of farming
or cemetery operations, on-site road construction and other on-site construction,
or nonsurface impacts of underground mines;...
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The "on-site construction" exemption serves an important function in the County's zoning
code. It allows property owners to establish the uses the County lists as allowed in each and
every zoning district in unincorporated Deschutes County.' Without this exemption, the uses
the County intends to allow would be prohibited if they require moving more than 1,000
cubic yards of earth. This is clearly not the intent of the County code and no provision of
State law prohibits this type of surface mining.
The work performed by KCDG involved the removal of more than 1,000 cubic yards of
material. The mining conducted by KCDG is not surface mining, however, because it was for
the primary purpose of other on-site construction, on-site road construction and the
maintenance of access roads.
KCDG and its related parties (Cadwells) own numerous adjacent properties, all of which
comprise the "landowner's property" as the term is used in the DCC 18.04.030(6)(2) definition
of "surface mining." This is where the excavation and crushing was occurring and where the
vast majority of the materials excavated were placed. The crushing was authorized to occur
on one of the lots of record that make up the landowners property. KCDG used the rock,
once crushed, for access road maintenance and reconstruction on any of the adjoining lots
of record owned by KCDG which together comprised its property and will use the rest when
it finishes the on-site construction of the reservoirs.
The Bishops argued that the on-site exemption provided by the surface mining definition
does not apply because a small amount of the material excavated by KCDG's contractor was
mistakenly placed on an access road on adjoining land owned by a water company. The
Board disagrees. The primary purpose of the excavation was not to improve this small area
of an off-site road. Rather, it was to recontour surface mining pits for use as a reservoir and
to improve on-site roads. The amount of rock applied off-site is miniscule in comparison to
the amount of material excavated to create the reservoirs. Additionally, the Bishops allege
that a small amount of crushed rock was recently placed on a driveway on an adjoining
property long after the rock was crushed many years after the project was placed on hold in
2014 to resolve legal issues. This claim was disputed, but even if true it would not, years
after the excavation occurred, change the primary purpose of the excavation and crushing.
BISHOPS' PREEMPTION ARGUMENT
The Bishops argued that the County's definition of surface mining is preempted by the
definition of surface mining provided by ORS 517.750(16) and that Deschutes County is
required by State law to update the definition. Generally, while County land use laws must
be as or more restrictive than State law in the resource zones, the same is not the case in
exceptions areas such as in the County's RR -10 zone. Additionally, the State laws that must
be honored are those applied as land use laws for resource zones. The Bishops' claim
8 With the exception of lands with urban reserve zoning, e.g. lands subject to Title 19.
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appears to be based on ORS 517.780(1), part of the State's reclamation law that was adopted
in 1971:
517.780 Effect on county zoning laws or ordinances; rules; certain
operations exempt. (1)(a) The provisions of ORS 517.702 to 517.989 and the
rules and regulations adopted thereunder do not supersede any county
zoning laws or ordinances in effect on July 1, 1972. However, if the county
zoning laws or ordinances are repealed on or after July 1, 1972, the provisions
of ORS 517.702 to 517.989 and the rules and regulations adopted thereunder
are controlling. The governing board of the State Department of Geology and
Mineral Industries may adopt rules and regulations with respect to matters
covered by county zoning laws and ordinances in effect on July 1, 1972.
ORS 517.780(1) explains how the then -new reclamation laws impact surface mining zoning
laws adopted by local governments before July 1, 1972. It does not address the impact of
the State's reclamation law on counties, like Deschutes County, that did not have surface
mining zoning ordinances on that date. Those counties were addressed in 1971 by the
provisions of subsection (2) of Section 16 of HB 3013 Engrossed, 1971 Oregon Legislature
that were codified as ORS 517.780(2).
Subsection (2) immediately followed ORS 517.780(1) and said that landowners were entitled
to conduct surface mining:
"pursuant to a valid [operating] permit issued by the appropriate authority of
a city or county in which the mining is taking place, if such authority has
adopted an ordinance, approved by the department, requiring reclamation of
land that has been surface mined."
Otherwise, the State's reclamation law governed the issuance of operating permits and the
reclamation of surface mines, the subjects addressed by the 1971 reclamation law.
ORS 517.780(1) predates the adoption of Oregon's statewide land use planning program in
Senate Bill 100 in 1973. The program developed to implement SB 100 required counties to
adopt surface mining laws that act in tandem with the State's reclamation program to
regulate and authorize surface mining. As the reclamation law predates the adoption of SB
100, it is clear there was no intention to preempt or control the content of land use laws
adopted to implement SB 100. This includes Deschutes County's subsequent adoption of its
Statewide Goal -compliant code, including the definitions adopted to implement that code.
Even if ORS 517.780(1) were read to have a legal effect on zoning ordinances adopted after
July 1, 1972, it does not allow Deschutes County to ignore the definition of "surface mining"
provided by its acknowledged land use regulations in favor of DOGAMI's definition. ORS
517.780(1) only preempts County zoning ordinances that conflict with DOGAMI operating
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permit and reclamation rules; not its definition of surface mining. Furthermore, the DOGAMI
definition of "surface mining" is limited by its own terms to ORS 517.702 to 517.989; it is does
not purport to define "surface mining" for purposes of a County ordinance.
Furthermore, the State of Oregon has made it clear that definitions other than the ones
provided by ORS 517.750 may be applied in the County's land use laws. For example, the
State EFU rules, like the County's rules, exempt on-site construction from the definition of
mining. ORS 215.298(1)(b). If the DOGAMI definition of surface mining were intended to
preempt land use definitions of the term, the State Legislature would have used the ORS
517.750(16) definition to regulate mining in the EFU zones.
The Board's reading of ORS 517.780 (1) is consistent with its legislative history. ORS
517.780(1) was a part of House Bill 3013, 1971 Oregon Legislature. The bill is referred to
throughout legislative history materials as a mining reclamation law. The purpose the bill
was to provide the greatest practical degree of protection and reclamation necessary for
their intended subsequent use. Section 1, HB 3013, Enrolled, 1971 Oregon Legislature. The
law was also written to address conflicts in State and local zoning ordinances that regulated
reclamation. The nature of the conflict addressed by ORS 517.780(1) was expressed by
Representative Anunsen in a hearing before the House Fish and Game Subcommittee on
April 15, 1971. Representative Anunsen said that he was concerned that a mine operator
might get into a "hassle" if the local jurisdiction approves a reclamation plan because it was
not clear whether the state would also have authority and vice versa. According to the
minutes "[h]e said it seems unnecessary to have to go through two and he is concerned that
different levels might have different ideas on what should be in the plans, they might conflict.
He said we would like to eventually see it go one way or the other so everyone knows where
they stand [regarding reclamation] and how they have to get to a point." House Fish and
Game Subcommittee Minutes of April 15, 1971, page 2.
In evaluating claims of state preemption, Oregon courts look to determine:
"whether the local rule in truth is incompatible with the legislative policy, either
because both cannot operate concurrently or because the legislature meant
its law to be exclusive. It is reasonable to interpret local enactments, if
possible, to be intended to function consistently with state laws, and equally
reasonable to assume that the legislature does not mean to displace local civil
or administrative regulation of local conditions by a statewide law unless that
intention is apparent." La Grande/Astoria v. PERB, 281 Or 137, 148-49, 576 P2d
1204 (1978) (footnote omitted).
The DOGAMI and County definition of "surface mining" each serve a different purpose. ORS
517.750(16) tells a property owner when they must reclaim mined property. Deschutes
County's land use ordinances do not require operating permits and do not regulate mine
reclamation planning and, therefore, do not conflict with DOGAMI laws. Instead, DCC
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18.04.030 is used to regulate where surface mining may occur and to determine when other
provisions of the code are applicable, such as the site plan review of mining. As each serves
a different purpose and regulates a different area of law, both can operate concurrently.
Therefore, there is no conflict and no preemption.
It is also worth noting that the County definition is in most cases more restrictive than the
State's DOGAMI definition. The County definition applies when 1,000 cubic yards of material
is extracted and the DOGAMI definition applies only when 5,000 cubic yards of material is
extracted.
Finally, in zoning districts other than in resource zones, the County is free to allow surface
mining as a land use subject to DOGAMI reclamation and operating permit requirements, if
applicable. While the State requires Deschutes County to protect mineral and aggregate
resources that meet the State's definition of significance (Goal 5 program), state law does
not prohibit it from allowing surface mining of non-significant resources. DOGAMI's rules
are written to apply anywhere surface mining occurs - whether at a Goal 5 protected mining
site or on a property being mined for other permitted uses.
OAR 660-004-0040, APPLICATION OF GOAL 14 TO RURAL RESIDENTIAL AREAS
Finding: OAR 660-004-0040 was recently amended. The amended rule was effective April
11, 2018. The rule, as written prior to amendment, has been applied to the County's review
of this application.
(1) The purpose of this rule is to specify how Statewide Planning Goal 14,
Urbanization, applies to rural lands in acknowledged exception areas
planned for residential uses.
(3) (a) This rule applies to lands that are not within an urban growth
boundary, that are planned and zoned primarily for residential uses,
and for which an exception to Statewide Planning Goal 3 (Agricultural
Lands), Goal 4 (Forest Lands), or both has been taken. Such lands are
referred to in this as rural residential areas.
(b) Sections (1) to (8) of this rule do not apply to the creation of a lot or
parcel, or to the development or use of one single-family home on
such lot or parcel, where the application for partition or subdivision
was filed with the local government and deemed to be complete in
accordance with ORS 215.427(3) before the effective date of Section
(1) to (8) of this rule.
FINDING: Most of the subject property for the planned development was subject to a zone
change from Surface Mining (SM) to RR -10 via land use approval PA -07-2 and ZC-07-2. The
remainder of the property was zoned RR -10 in 1979 as part of the County's adoption of its
zoning ordinance codified as Public Law 15 (PL -15). At this same time, these RR -10 -zoned
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lands were acknowledged as exception areas in the County's comprehensive plan. For these
reasons, the subject property is in a rural residential exception area as defined in 2(a) above.
The applicant is proposing to create new lots for dwellings. Therefore, the BOCC finds the
restrictions in this rule apply.
(c) This rule does not apply to types of land listed in (A) through (H) of this
subsection:
(A) land inside an acknowledged urban growth boundary;
(B) land inside an acknowledged unincorporated community
boundary established pursuant to OAR Chapter 660, Division
022;
(C) land in an acknowledged urban reserve area established
pursuant to OAR Chapter 660, Division 021;
(D) land in acknowledged destination resort established pursuant
to applicable land use statutes and goals;
(E) resource land, as defined in OAR 660-004-0005(2);
(F) nonresource land, as defined in OAR 660-004-0005(3);
(G) marginal land, as defined in ORS 197.247, 1991 Edition;
(H) land planned and zoned primarily for rural industrial,
commercial or public use.
FINDING: The subject property is not located within any of the above listed areas.
Therefore, the BOCC finds the development is subject to this rule.
(7)
(a) The creation of any new lot or parcel smaller than two acres in a rural
residential area shall be considered an urban use. Such a lot or parcel
may be created only if an exception to Goal 14 is taken. This
subsection shall not be construed to imply that creation of new lots
or parcels two acres or larger always complies with Goal 14. The
question of whether the creation of such lots or parcels complies with
Goal 14 depends upon compliance with all provisions of this rule.
(b) Each local government must specify a minimum area for any new lot
or parcel that is to be created in a rural residential area. For the
purposes of this rule, that minimum area shall be referred to as the
minimum lot size.
(c) If, on the effective date of this rule, a local government's land use
regulations specify a minimum lot size of two acres or more, the area
of any new lot or parcel shall equal or exceed that minimum lot size
which is already in effect.
(d) If, on the effective date of this rule, a local government's land use
regulations specify a minimum lot size smaller than two acres, the
area of any new lot or parcel created shall equal or exceed two acres.
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(e) A local government may authorize a planned unit development (PUD),
specify the size of lots or parcels by averaging density across a parent
parcel, or allow clustering of new dwellings in a rural residential area
only if all conditions set forth in paragraphs (7)(e)(A) through (7)(e)(H)
are met:
A. The number of new dwelling units to be clustered or developed
as a PUD does not exceed 10.
FINDING: The applicant proposes to subdivide three existing lawfully created legal lots of
record into ten new residential lots as part of the PUD. All new lots will be two acres in size.
Opponents argue that because the applicant owns additional legal lots in the area that they
must be considered against the ten lots authorized by this rule. The BOCC finds that this
argument has no merit. The administrative rule limits the number of new residential
dwelling units that may be clustered or developed as a PUD as part of a subdivision
application. In this application, no more than ten new dwelling units are clustered or
developed as a PUD.
It is inconsequential that the applicant owns additional legal lots that can already be built
upon with residential dwelling as an outright permitted use in the RR -10 Zone. Those lots
are not considered by this rule, nor are they included in the PUD or the subject property that
comprises the PUD. The BOCC finds that this rule does not impose the result offered by
opponents that a subdivision via a PUD prevents a property owner from also developing
already lawfully created adjacent parcels of land.Il
Because the applicant is only requesting subdivision for ten residential lots and homes in a
single PUD and because this approval will only result in ten new residential dwelling units
within the PUD boundaries, the BOCC finds the ten proposed residential units comply with
this rule.
B. The number of new lots or parcels to be created does not
exceed 10.
FINDING: Applicant proposes to subdivide three existing legal lots into ten new residential
lots as part of a PUD, and an open space tract. See also the findings above regarding OAR
660-004-0040(7)(e)A. The BOCC finds this rule will be met.
C. None of the new lots or parcels will be smaller than two acres.
FINDING: All the residential lots will be two acres in size. The BOCC finds this rule will be
met.
D. The development is not to be served by a new community sewer
system.
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Commented [AS1]: KCDG is asking the BOCC to make
findings on the lot line adjustments of those adjacent parcels, which
kinda makes thein also the subject of the collective applications.
E. The development is not to be served by any new extension of a
sewer system from within an urban growth boundary or from
within an unincorporated community.
FINDING: The ten residential lots will have individual septic systems and not be served by a
new community sewer system nor will they require extension of a sewer system. The BOCC
finds the requirements of these rules will be met.
F. The overall density of the development will not exceed one
dwelling for each unit of acreage specified in the local
government's land use regulations on the effective date of this
rule as the minimum lot size for the area.
FINDING: The RR -10 Zone establishes a general density9 of one lot per ten acres. As noted
previously, OAR 660-004-0040(7)(e)(A) & (B) allow the creation of ten new residential units &
lots. The applicant proposes ten new residential parcels to be created from three existing
lots, using the PUD mechanism. The PUD is 104.68 acres in size, reserving 20 acres for the
ten new residential lots. Per DCC 18.88.050, eighty percent must be preserved as open space,
or roughly 83.74 acres. This is a density of one residential dwelling per 10.46 acres which
exceeds the effective minimum density of one unit per ten acres allowed on RR -10 parcels
that are located in the WA Zone. The BOCC finds the proposed creation of ten residential
lots complies with this rule.
G. Any group or cluster of two or more dwelling units will not force
a significant change in accepted farm or forest practices on
nearby lands devoted to farm or forest use and will not
significantly increase the cost of accepted farm or forest
practices there.
FINDING: There are no known farm or forest practices on adjacent properties or in the area
generally. The closest lands zoned for Forest Use (F-1 and F-2) are located approximately 0.5
miles to the northwest, 1 mile to the west and 1.2 miles to the southwest. The closest known
forest practices are occurring on both private and public lands over 2 miles to the west.
Given this distance, the BOCC finds the proposed subdivision will not force a significant
9 DCC 18.60.060(C) allows density in cluster and planned unit developments to be one unit per 7.5
acres, and that cluster and planned unit developments within a mile of an acknowledged Urban
Growth Boundary (UGB) are allowed an equivalent density of one lot per five acres. The subject
property is within one mile of the UGB associated with the City of Bend. However, the subject property
is burdened by the Wildlife Area Combining Zone (WA Zone). Per DCC 18.88.050.D, eighty percent
(80%) of a planned development must remain as open space. This requirement effectively establishes
a maximum density of one home per ten acres in RR -10 areas also zoned WA.
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change in accepted forest practices on nearby lands, and will not significantly increase the
cost of accepted forest practices there.
The only nearby farm use in the area is the west half of Tax Lot 800, Map 17-11-12 on a lot
zoned EFU and SM. This property grows hay. According to the County's list of common farm
practices in Deschutes County, applicant Exhibit T, the following are farm practices related
to growing hay (listed under "permanent pasture") that might be impacted by residential
development: reseeding, ground spraying of herbicides for weed control, harvesting/baling
for hay, spreading manure for fertilizer and irrigation. The aspects of these practices that
may conflict with residential use are dust, drifting of herbicides that may be toxic, vehicle
noise from the baler (up to' to 1/2 mile), manure odor (for up to several days) and possible
runoff water from the surface application of irrigation water and overspraying onto roads
and across fence lines.
The clustered lots in the PUD will be over 2,000 feet south of this property. The clustered
lots are separated from Tax Lot 800 by open space and existing residences. A number of
single-family homes are within 2,000 feet of the hay field, including numerous homes on
small rural lots in the Saddleback subdivision. The uses have been in place for many years
without forcing a significant change in accepted farm and forest practices on this property.
The new residential lots will downwind of Tax Lot 800 as prevailing winds are from the
southwest making it unlikely that dust from reseeding will create a conflict. Herbicide drift
from ground application will not drift over 2,000 feet to the subject property. Tax Lot 800 is
so far from the new residences that any noise from a baler will be so attenuated by distance
as not to generate actionable noise complaints. The distance separating the hay field and
the new homes and prevailing winds, also, will make it highly unlikely any new resident will
smell manure spread as fertilizer or that any irrigation water runoff will ever reach the new
home lots. As a result, it is not anticipated that the planned development will have any
impact on such adjacent use.
The BOCC finds that substantial evidence in the record supports a determination that the
proposed subdivision will not force a significant change in accepted farming practices on
nearby lands, and will not significantly increase the cost of accepted farming practices there.
The BOCC also notes that no comments have been received to date regarding the negative
impacts to farm and forest uses. This rule will be met.
H. For any open space or common area provided as a part of the
cluster or planned unit development under this subsection, the
owner shall submit proof of nonrevocable deed restrictions
recorded in the deed records. The deed restrictions shall
preclude all future rights to construct a dwelling on the lot,
parcel, or tract designated as open space or common area for
as long as the lot, parcel, or tract remains outside an urban
growth boundary.
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FINDING: The BOCC finds that, with the imposition of a condition of approval requiring
compliance with this restriction, this rule will be met.
(j) Except as provided in subsection (e) of this section, a local government
shall not allow more than one permanent single-family dwelling to be
placed on a lot or parcel in a rural residential area. Where a medical
hardship creates a need for a second household to reside temporarily
on a lot or parcel where one dwelling already exists, a local
government may authorize the temporary placement of a
manufactured dwelling or recreational vehicle.
FINDING: The applicant proposes one single-family dwelling per residential lot. The BOCC
finds this rule will be met.
OREGON REVISED STATUTES, CHAPTER 92, SUBDIVISIONS AND PARTITIONS
92.010 Definitions for ORS 92.010 to 92.192. As used in ORS 92.010 to 92.192, unless the
context requires otherwise:
(11) 'Property line" means the division line between two units of land.
(12) 'Property line adjustment" means a relocation or elimination of all or a portion
of the common property line between abutting properties that does not create an
additional lot or parcel.
92.192 Property line adjustment; zoning ordinances; size of unit of land.
(2) Except as provided in this section, a lawfully established unit of land that is
reduced in size by a property line adjustment approved by a city or county must
comply with applicable zoning ordinances after the adjustment.
(3) Subject to subsection (4)10 of this section, for land located entirely outside the
corporate limits of a city, a county may approve a property line adjustment in which:
(a) One or both of the abutting lawfully established units of land are smaller
than the minimum lot or parcel size for the applicable zone before the
property line adjustment and, after the adjustment, one is as large as or
larger than the minimum lot or parcel size for the applicable zone; or
(b) Both abutting lawfully established units of land are smaller than the
minimum lot or parcel size for the applicable zone before and after the
property line adjustment.
70 Subsection (4) of ORS 92.192 applies to farm and forest zoned lands and is, therefore, excluded
from applicable criteria in this decision.
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FINDING: The applicant proposes eight property line adjustments to be completed before
the PUD subdivision may be made. The applicant applied for all eight, but subsequently
withdrew them due to a LUBA and subsequent court of appeals decisions in Bowerman v.
Lane County, 287 Or App 383, 403 P3d 512 (2017), modified on recons, 291 Or App 651 (2018).
The applicant then submitted the first of the eight adjustments. A question has been raised
as to whether or not the County could process the PUD application in light of the property
line adjustments not being completed. However, the BOCC finds that the question of
whether the ROF and PUD applications can be processed, despite the fact that the requisite
property line adjustments have yet to be completed, is answered in Bollam v. Clackamas
County, _Or LUBA_ (LUBA No 2006-110, Oct 27, 2006). In that case, a Clackamas County
Hearings Officer approved a subdivision as a PUD, but denied the associated property line
adjustment upon which the subdivision was reliant. While denying the property line
adjustment, the Hearings Officer found that it was feasible for the property line adjustment
to be approved in a separate decision under different approval criteria. Further, the
Hearings Officer conditioned approval of the subdivision on completion of an approved
property line adjustment. On appeal, LUBA determined that the Hearings Officer did not err
in finding it feasible for the necessary property line adjustment to be approved and
conditioning approval of the subdivision.
Similarly here, the BOCC finds it is feasible for the eight property line adjustments to be
approved under separate decision.
The Oregon Court of Appeals recently determined that sequential property line adjustments
are allowed. See Bowerman, 291 Or App at 651. The BOCC imposes a condition of approval
for the PUD that the property line adjustments shall be completed consistent with that
decision.
TITLE 22, DEVELOPMENT PROCEDURES ORDINANCE
A number of comments were received arguing that the County must deny or refuse to
process the current applications due to the provisions of DCC 22.20.015. This is not, however,
a correct reading of the code. The purpose of the law is to achieve compliance with the code;
not to deny applications as a punishment for code violators. If a violation, as defined by the
code, exists, the County may approve the application if approval will address or remedy the
violation.
The Bishops and several other parties have argued that the subject property has existing
code violations. The BOCC disagrees. A violation must exist before the other provisions of
DCC 22.20.015 are operative. A violation, as the term is defined by DCC 22.20.015 (C), exists
only if a prior decision or the review process of the current application determines that a
violation exists or if the applicant has acknowledged a violation in a signed voluntary
compliance agreement. In this case, no prior decision has determined that a violation exists
and no finding of violation has been made in the review of the pending land use applications.
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Although DCC 22.20.015 (C) authorizes the BOCC to make a finding of violation as a part of
this review, it does not require the BOCC to do so.
Furthermore, the BOCC finds that no existing code violations are present on the subject
property. The BOCC finds it reasonable to rely on planning and code enforcement staff in
making such a finding. An alleged violation is not sufficient to bar the review or approval of
an application even if there is merit to the allegation. It is not the intent of the code to
prevent a landowner from being able to apply for permitted uses on their property, if they
also address County -determined violations. The code is intended to incentivize owners to
resolve actual code violations as a condition of approving additional uses.
Bishops have argued that the stockpiling of crushed material on the subject property is a
code violation. The BOCC disagrees. The stockpiles are allowed by temporary use permit,
TU -14-8. The stockpiling of material may occur as a result of that rock crushing authorization
as long as such material is used primarily on site oris removed within 60 days of the project
being completed. The project has yet to be completed due to associated legal challenges.
As this decision explains further below, such material will be required to be used on site or
removed as a condition of approval for the final plat. As detailed below, the BOCC also
specifically rejects Bishops' argument that de minimus use of crushed material on adjacent
properties violates TU -14-8 or DCC.
In the case of the applicant and subject property, no "violation," as defined by the code has
been found to exist and, therefore, the current applications may be processed and may
approved. The following findings support this conclusion:
A. Chapter 22.20.015 Code Enforcement and Land Use
1. Section 22.20.015. Code Enforcement and Land Use.
A. Except as described in (D) below, if any property is in violation of
applicable land use regulations , and/or the conditions of approval of
any previous land use decisions or building permits previously issued
by the County, the County shall not:
1. Approve any application for land use development;
2. Make any other land use decision, including land divisions
and/or property line adjustments;
3. Issue a building permit.
FINDING: County code enforcement staff has confirmed that no building permit or code
violations currently exist on the subject property. Prior code complaint matters have been
closed.
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The Bishops argued that prior County decisions have determined that the subject property
is in violation of County land use regulations. The 2014 LUCs decisions found that conditional
use land use approvals would be needed in order for the reservoirs to be used for water
skiing or irrigation district reservoir use but they did not find that the excavation of the
reservoirs was unlawful.
Water skiing and irrigation district water storage uses were discontinued in 2016. The statute
of limitations for violations of the County's land use code, also, is six months. DCC 1.16.030
(adopts ORS 153.030 by reference), ORS 153.030, ORS 131.125. All code violations alleged
by opponents occurred well over six months ago and KCDG, LLC is no longer subject to
punishment for the alleged violations.
The Bishops recently alleged that the KCDG, LLC property is in violation of the conditions of
approval of a land use decision, TU -14-8. TU -14-8 authorized crushing of materials excavated
from the south reservoir. TU -14-8 had six conditions of approval. They are outlined below:
• Crushing shall be completed within 30 days of approval and will take place Monday
through Friday, 7:00 am to 5:00 pm, excluding legal holidays.
• The volume of excavated material shall not exceed the amount necessary to complete
maintenance of roads and landscaping.
• No off-site material shall be brought on site for crushing.
• Rock crushing equipment shall be removed within 30 days of completing the
crushing.
• Excavated and crushed material not used for on-site road maintenance or
landscaping shall be removed from the site within 60 days of completing the project.
• Water shall be available for dust control.
The Bishops argued that KCDG is in violation of the conditions of approval of this permit
because the stockpiled material was not removed within 30 days and the material was
applied on KCDG, LLC properties not listed on the permit. The conditions of approval for TU -
14 -8 do not, however, require the removal of crushed rock within 30 days of the completion
of crushing. They required the removal of the rock crushing equipment within 30 days.
The conditions also do not limit use of crushed material on one specific lot, as Bishops
suggest. It only requires that no off-site material be brought on site for crushing. The
conditions also do not require removal of the excavated and crushed material until 60 days
after completing the project. The project is the construction of the reservoir and on-site
roads. This project is not yet complete, so removal is not yet required. Applicants continue
to use stockpiled material for road maintenance and landscaping. This includes using the
material, upon approval of the PUD, to improve existing road systems to County road
standards.
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The Bishops also argued that a County Hearings Officer made a determination that the
storage of materials on a rural residential property was a violation of the County code and
that this determination must be followed by the Board in this case. This is a legally erroneous
argument as the BOCC is not bound by decisions issued by its hearings officers and the facts
in that case were significantly different.
To ensure the stockpiled material is removed or used on-site pursuant to TU -14-8, the
County has imposed a condition of approval in the ROF/PUD Decision that all of the material
be used for onsite for road or landscaping purposes prior to filing of a final plat of the Pura
Vida subdivision proposed by Tanager. This condition will serve the dual purpose of
correcting any violation of the permit, if one is ultimately found to exist. This has also been
made a condition of approval of this surface mining and plan amendment decision in the
event the subdivision never receives final plat approval.
C. A violation means the property has been determined to not be in
compliance either through a prior decision by the County or other
tribunal, or through the review process of the current application, or
through an acknowledgement by the alleged violator in a signed
voluntary compliance agreement VCA").
FINDING: No prior decision of the County has determined that the subject property is in
violation of the County code and no VCA has been signed by KCDG, the property owner and
alleged violator. No member of County staff, its hearings officer or the BOCC has made a
determination of noncompliance through the review process of the current application.
The Bishops argue that the prior denial of conditional use permits for surface mining in
conjunction with TID and for operation of a recreation oriented facility for water skiing on
the South Reservoir determined that KCDG was in violation of the County code. This is
incorrect. No such determination was made in the decision of denial. The County simply
determined that the property did not qualify for approval of the requested uses based on
the submitted proposal and then applicable law.
D. A permit or other approval, including building permit applications,
maybe authorized if.•
1. It results in the property coming into full compliance with all
applicable provisions of the federal, state, or local laws, and
Deschutes County Code, including sequencing of permits or
other approvals as part of a voluntary compliance agreement;
FINDING: Should any subsequent hearings body determine a code violation exists on the
subject property for conditions of the subject property currently existing, any violation will
be cured by approval of the land use applications. Assuming that the storage of rock is a
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code violation, the rock can be required to be used in landscaping of the property or
removed within a given period of time.
B. Chapter 22.28, Land Use Decisions
1. Section 22.28.040. Reapplication Limited.
A. If a specific application is denied on its merits, reapplication for
substantially the same proposal may be made at any time after the
date of the final decision denying the initial application.
FINDING: The purpose of the current applications is to obtain after -the -fact approval for
excavation and grading activities creating two reservoirs and allowing TID to store water in
those two reservoirs. As previously noted, in 2017 Tanager also submitted separate land use
applications seeking approval of the ROF and PUD, addressed in the ROF/PUD Decision. The
Bishops argued that they prevailed in challenging similar applications filed in 2015(the "2015
Land Use Applications"), and that KCDG and Tanager, therefore, should not "get another bite
at the apple."" The Deschutes County Code, DCC 22.28.040, however, grants KCDG the right
to refile the denied applications and to obtain new decisions on the merits of the
applications. It says "[ijf a specific application is denied on its merits, reapplication for
substantially the same proposal may be made at any time after the date of the final decision
denying the initial application."
Further, the 2015 Land Use Applications were not identical to the current applications. The
2015 Land Use Applications sought approval of a conditional use for surface mining for
reservoirs, a conditional use for a recreation facility and a site plan for a recreation facility.
The applicants at that time did not seek approval of a planned unit development or of a plan
amendment to add the subject property to the non-significant mineral and aggregate
inventory; two of the current applications filed by Tanager and KCDG.
Last, the Hearings Officer analyzed the Bishops argument as one based on the legal theories
of issue and claim preclusion. The Hearings Officer found these theories barred
reconsideration of most of the issues presented in the current land use applications. The
BOCC finds to the contrary. Generally, claim preclusion does not apply in local land use
proceedings. Lawrence v. Clackamas County, 40 Or LUBA 507, 518 (2001). The Oregon Court
of Appeals has held that claim preclusion does not apply where a local code allows an
11 Counsel for the Bishops also argued that the subject applications should not be reviewed until the
Declaratory Action in Bishop v. KC Development Group, LLC et al, Deschutes County Circuit Court Case
No. 17CV21383, and its related Motion for Preliminary Injunction are decided. There is no controlling
provision in the zoning code or Procedures Ordinance that would prevent the County from processing
any land use applications due to a pending circuit court case. This case was dismissed by the circuit
court and has been appealed by the Bishops.
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applicant to refile a land use application. Lawrence v. Clackamas County, 180 Or App 495, 502-
03, 43 P3d 1192, rev den 334 Or 327, 52 P3d 435 (2002).
Issue preclusion, according to the Oregon Court of Appeals, applies only if the following five
conditions are met:
"(1) The issue in the two proceedings must be identical. (2) The issue must have
been actually litigated and 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. (4) The party sought to be precluded was a party or
was in privity with a party in the prior proceeding. (5) The prior proceeding was
the type of proceeding to which a court will give preclusive effect. Nelson, 318
Ore. at 104 (citing cases)." Lawrence, 180 Or App at 503-504.
In this case, the issues in the 2015 Land Use Applications are similar but are not identical to
the current applications. KCDG and Tanager responded to the denial of the 2015 Land Use
Applications by proposing a wildlife management plan that was recommended in the denial
of the 2015 applications. KCDG and Tanager also propose a landscaping plan for the
reservoirs which will include revegetating the land on the banks of the South Reservoir to
address concerns that, in part, resulted in denial of the 2015 Land Use Applications.
Two of the current applications are new proposals not considered in 2015, the planned unit
development and plan amendment. The issues presented by the new applications were not
considered, actually litigated, nor were they essential to a final decision on the merits in the
prior proceedings. As discussed in the separate ROF/PUD Decisions, the PUD is proposed
adjacent to the reservoirs but does not include either of the reservoirs considered in the
2015 Land Use Applications. The applicable approval criteria, with the exception of general
conditional use approval criteria, are different in these new applications. It, therefore, is
inappropriate to apply issue preclusion to any issue presented in either the PUD or plan
amendment applications.
The PUD application, also, proposes residential lots around parts of the South Pond. When
developed, homes and landscaping on the PUD residential lots will buffer neighboring
properties from noise associated with the recreational use of the South Reservoir. This is a
changed condition not present in 2015 and not considered in the decision denying approval
of the recreational facility.
As noted, DCC 22.28.040 contemplates that an applicant may refile denied land use
applications. DCC 22.28.040 is an acknowledged land use regulation upon which the
applicants in this matter were entitled to rely. The intent of the provision is to encourage
applicants to accept decisions of denial at the early stages of the land use review process
rather than appeal decisions of denial. This encourages applicants to revise and improve
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land use applications to address issues that resulted in denial rather than to challenge issues
related to the denial by filing appeals with the BOCC, LUBA and appellate courts.
The BOCC notes that this decision is intended to, and in fact does, supersede and replace all
other decisions, including denials, of previous land use applications on the subject property.
This decision expressly supersedes and replaces the permit denials issued by Hearings
Officer Karen Green dated January 21, 2016, and often referred to herein as "Ski Lake 1."
TITLE 18, COUNTY ZONING
A. Chapter 18.60, Rural Residential Zone
1. Section 18.60.020. Uses Permitted Outright.
A. Agricultural use as defined in DCC Title 18.
FINDING: The reservoirs will also be used for the agricultural use of aquaculture, a use
permitted outright in the RR -10 Zone that does not require Board approval. Opponent
Bishop has argued that the "addition" of this use to the application modifies the application
and, therefore, cannot be considered due to the provisions of DCC 22.20.055(3). This use
has been an integral part of the proposal from the date filed. But, even if it is a change of
plans, it is not a modification of application. A modification of application is defined by DCC
22.04.020 to be new information "that requires the application of new criteria to the proposal
or that would require the findings of fact to be changed." No new criteria have been applied
as a result of this fact nor does this information require a change to the findings of fact that
support approval of the submitted applications.
2. Section 18.60.030. Conditional Uses Permitted.
The following uses may be allowed subject to DCC 18.128:
E. Planned development.
G. Recreation oriented facility requiring large acreage such as off road
vehicle track or race track, but not including a rodeo grounds.
FINDING: Applicant seeks approval of a ten -lot planned development (PUD). This is a
permitted use in the RR -10 Zone. Relevant conditional use criteria are addressed below.
In decisions dated April 8, 2015, the BOCC determined the proposed motorized boating use
of the south reservoir on the subject property required a permit for a recreation oriented
facility requiring large acreage, pursuant to this section of the code. The BOCC also
determined in that process that the north reservoir did not require such permit.
Nonetheless, the applicant has asked for approval of a ROF requiring large acreage for both
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reservoirs with the motorized boating use being restricted to the south reservoir. Applicable
conditional use permit criteria are addressed below.
3. Section 18.60.040. Yard and Setback Requirements.
In an RR 10 Zone, the following yard and setbacks shall be maintained.
A. The front setback shall be a minimum of 20 feet from a property line
fronting on a local street right of way, 30 feet from a property line
fronting on a collector right of way and 50 feet from an arterial right
of way.
8. There shall be a minimum side yard of 10 feet for all uses, except on
the street side of a corner lot the side yard shall be 20 feet.
C. The minimum rear yard shall be 20 feet.
D. The setback from the north lot line shall meet the solar setback
requirements in DCC 18.116.180.
E. In addition to the setbacks set forth herein, any greater setbacks
required by applicable building or structural codes adopted by the
State of Oregon and/or the County under DCC 15.04 shall be met.
FINDING: Pursuant to DCC 18.128.210(D)(1), the RR -10 setbacks, including the solar setback,
do not apply in planned developments except to the extent required by the BOCC. The BOCC
finds that compliance with the setbacks of subsections (A) through (C) is necessary. Based
on review of the site plan and tentative plan drawings depicted on Exhibit C and G of the
applicant's burden of proof, respectively, the BOCC finds it feasible to site a single-family
dwelling to meet the required yard setbacks on each residential lot given their size and
dimensions. With respect to solar setbacks, the applicant requests an exception to the solar
setback standard. Similar to the Hearings Officer's finding on this issue, the BOCC finds the
solar setback exception is appropriate given the small size of the proposed residential lots.
Any greater setbacks required by applicable building or structural codes will be addressed
during building permit review.
As shown on the applicants submitted site plan, the proposed boat garages and associated
piers will observe front, side and rear yard setbacks of at least 20 feet, meeting this criterion.
Although the reservoirs are structures, they are not buildings for the reasons provided by
the County's Hearings Officer denying the 2015 conditional use application seeking approval
of surface mining in conjunction with TID. Those findings state:
"Section 18. 04.030 includes the following relevant definitions:
"Building" means a structure built for the support, shelter, or enclosure of
persons, animals, chattels or property of any kind.
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"Setback" means an open space on a lot which is unobstructed from the ground
upward except as otherwise provided in DCC Title 18.
"Setback, front" means a setback between side lot lines, measured horizontally
at right angles to the front lot line and the front lot line to the nearest point of
abuilding.
"Setback, rear" means a setback between side lot lines, measured horizontally
at right angles to the rear lot line from the rear lot line to the nearest point of
a building.
"Setback, side" means a setback between the front and rear yard measured
horizontally at right angles from the side lot line to the nearest point of a
building.
"Yard" means an open space on a lot which is unobstructed from the ground
upward except as otherwise provided in Title 18.
"Yard, front" means a yard between side lot lines measured right angles to the
front lot line from the front lot line to the nearest point of a building. Any yard
meeting this definition and adjoining on a street other than an alley shall be
considered a front yard.
"Yard, rear" means a yard between side lot lines measured horizontally at right
angles from the rear lot line to the nearest point of a building.
"Yard, side" means a yard between front and rear yard measured horizontally
at right angles from the side lot lines to the nearest point of a building.
(Emphasis added.)
The questions presented under this section are: (1) whether the southern reservoir and the
proposed dock, pilings for the boathouse, and boathouse are subject to the setbacks in the
RR -10 Zone; and (2) if so, whether they comply with the setbacks.
1. Reservoirs. The subject property consists of thirteen contiguous tax lots and lots of
record. The applicant's submitted site plan shows approximately one- quarter of the
southern reservoir is located on Tax Lot 828 and the remainder of the reservoir is located on
Tax Lot 824, and therefore the southern reservoir crosses a lot line.
The applicant argues the southern reservoir is not subject to the minimum setbacks in this
section because it is not a feature that "obstructs" from the ground upward. The applicant
also argues the reservoir is not a "building" and therefore because the minimum setbacks
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are measured from the nearest point of a building, they do not apply to the reservoir. The
applicant also argues that even if parts of the reservoirs could be considered to "obstruct"
from the ground upward, there is no justification for applying the setbacks to the reservoirs
and therefore the setbacks should be waived." Finally, the applicant argues that if the
setbacks do apply to the southern reservoir, the reservoir qualifies for a variance to the
setbacks.
The Bishops respond that the setbacks in the RR -10 Zone do apply to the reservoir because
the uppermost portion thereof, the banks and areas where the liners are secured with gravel,
project above the ground.
The County's Hearings Officer in the past found that the reservoirs are "structures" for
purpose of determining whether they constitutes a "reservoir and water impoundment"
permitted in certain zones. That finding was affirmed by the BOCC, previously. However,
"building" is defined as a distinct type of structure — i. e., one built "for the support, shelter,
or enclosure of persons, animals, chattels or property of any kind." The Bishops argue that
the reservoirs are "buildings" because were constructed to enclose and support water.
However, the BOCC finds that interpretation stretches the meaning of "building" too far. The
BOCC finds that the reservoirs are not "buildings" and accordingly the minimum setbacks in
the RR -10 Zone do not apply to them.12
Additionally, per DCC 18.120.030(B), steps, terraces, platforms and porches having no roof
covering may project into a required yard. The banks and liners are essentially at ground
level, much like steps or porches. For this reason, the BOCC finds the banks and liners may
project into a required setback.
The Bishops and other opponents also argue that both reservoirs constitute "obstructions"
to the movement of wildlife across the subject property. As noted above, the reservoirs are
not buildings and, therefore, are not subject to setback and yard requirements. Further, the
record supports wildlife biologist Dr. Wendy Wente's opinion that other migration corridors
exist on the subject property and have been maintained under this and other land use
applications regarding the reservoirs.
2. Dock. Pilings and Boathouse. Photographs in the record show the dock and pilings for
the boathouse project above the water level. The applicant's burden of proof states, and the
boathouse drawings included in the record state the peak of the boathouse roof would be
approximately 23 feet above the water line. The BOCC finds that height also would place the
roof peak above ground level. In his October 21, 2015 comments on the applicant's proposal,
Deschutes County Building Official Randy Scheid stated the dock would not require a
building permit but that the boathouse and it pilings (when developed with boathouses)
would. The BOCC finds the boathouse is a " building" as it would be designed and
12 The County's building official also determined the reservoirs do not require building permits.
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constructed to shelter up to two boats, and therefore both the boathouse and its pilings are
subject to the minimum yards and setbacks in the RR -10 Zone.
The site plan submitted by the applicant demonstrates compliance with applicable setbacks
by providing front, side and rear yard setbacks of at least 20 feet.
4. Section 18.60.050. Stream Setback.
To permit better light air, vision, stream or pollution control, protect fish
and wildlife areas and to preserve the natural scenic amenities and vistas
along streams and lakes, the following setback shall apply:
A. All sewage disposal installations, such as septic tanks or septic
drainfields, shall be set back from the ordinary high water mark along
all streams or lakes a minimum of 100 feet, measured at right angles
to the ordinary high water mark. In those cases where practical
difficulties preclude the location of the facilities at a distance of 100
feet and the County Sanitarian finds that a closer location will not
endanger health, the Planning Director or Hearings Body may permit
the location of these facilities closer to the stream or lake, but in no
case closer than 25 feet.
B. All structures, buildings or similar permanent fixtures shall be set
back from the ordinary high water mark along all streams or lakes a
minimum of 100 feet measured at right angles to the ordinary high
water mark.
FINDING: Per the tentative plan on Exhibit G of the applicant's burden of proof, the 100 -foot
setback from the ordinary high water mark associated with Tumalo Creek affects subdivision
lots 8-10. The lots are sized and located so that future development (homes and drainfields)
may occur on these lots and meet the setback. The BOCC finds this criterion will be met.
5. Section 18.60.060. Dimensional Standards.
In an RR 10 Zone, the following dimensional standards shall apply:
A. Lot Coverage. The main building and accessory buildings located on
any building site or lot shall not cover in excess of 30 percent of the
total lot area.
FINDING: The only buildings proposed by this application are for the accessory boathouse
structures to the ROF. The three boathouse structures are proposed to be less than 1,000
square feet each, on a lot that is ten acres in size after the requisite property line adjustments
described above. This criterion is met.
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B. Building Height. No building or structure shall be erected or enlarged
to exceed 30 feet in height, except as allowed under DCC 18.120.040.
FINDING: The only buildings proposed by this application are for the accessory boathouse
structures to the ROF. The three boathouse structures are proposed to be less than 30 feet
in height. This criterion is met.
C. Minimum lot size shall be 10 acres, except planned and cluster
developments shall be allowed an equivalent density of one unit per
7.5 acres. Planned and cluster developments within one mile of an
acknowledged urban growth boundary shall be allowed a five acre
minimum lot size or equivalent density. For parcels separated by new
arterial rights of way, an exemption shall be granted pursuant to DCC
18.120.020.
FINDING: The properties associated with the subdivision, as depicted on Exhibit A of the
applicant's burden of proof, encompass a total of 104.68 acres. The applicant proposes a
ten -lot subdivision for an equivalent residential density of one lot per 10.47 acres, meeting
this criterion. The BOCC finds this criterion will be met.
B. Chapter 18.56, Surface Mining Impact Area Combining Zone
1. Section 18.56.030. Application of Provisions.
The standards set forth in DCC 18.56 shall apply in addition to those specified in
DCC Title 18 for the underlying zone. If a conflict in regulations or standards
occurs, the provisions of DCC 18.56 shall govern.
FINDING: The standards under DCC 18.56 are addressed in the following findings.
2. Section 18.56.040. Uses permitted outright.
Uses permitted outright shall be those identified in the underlyingzone(s) with
which the SMIA Zone is combined.
FINDING: The proposed dwellings associated with the subdivision are allowed outright in the
RR -10 Zone and are also allowed outright in the SMIA Combining Zone.
3. Section 18.56.070. Setbacks.
A. No noise -sensitive or dust -sensitive use or structure established or
constructed after the designation of the SMIA Zone shall be located
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within 250 feet of any surface mining zone, except as provided for in
Section 18.56.140.
B. No noise -sensitive or dust sensitive use or structure established or
constructed after the designation of the SMIA zone shall be located
within one-quarter mile of any existing or proposed surface mining
processing or storage site, unless the applicant demonstrates that the
proposed use will not prevent the adjacent surface mining operation
from meeting the setbacks, standards, and conditions set forth in DCC
18.52.090, 18.52.110, and 18.52.140, respectively.
FINDING: The proposed residential lots will be at least 0.35 miles, or approximately 1,900 feet,
from the closest boundary associated with Surface Mining Site No. 293 identified as tax lots 500,
600, 700, and 800 on Assessor map 17-11-12. For this reason, the BOCC finds the criteria under
DCC 18.52.090, 110 and 140, as well as the criteria under 18.56.140, do not apply.
Across Tumalo Creek to the east is the Shevlin Sand and Gravel operation known as the 'Cake
Pit', currently operated by ERMK, LLC, and authorized for surface mining activities via
Department of Geology and Mineral Industries (DOGAMI) permit 09-0018. This property is
zoned SM and is regulated by the provisions of Title 19, Bend Urban Growth Boundary Zoning
Ordinance. However, the Cake Pit is not recognized in Deschutes County's Comprehensive Plan
as a Goal 5 surface mine. Unlike Title 18, Title 19 does not include an equivalent SMIA
Combining Zone. For this reason, the BOCC finds that, although the Cake Pit is within 250 feet
of the subject property, none of the provisions of the SMIA chapter apply to the Cake Pit.
In response to the notice of application, an email dated August 14, 2017 was received from Will
Van Vactor, legal counsel representing ERMK, LLC. The email includes a letter which expresses
concern regarding conflicts between the proposed residential development and operation of
the Cake Pit. Consequently, ERMK, LLC requested that the County require a waiver of
remonstrance prohibiting the applicant and future owners from complaining about or opposing
ERMK's mining operation, including any future expansion of the mining operation.
As noted above, Title 19 does not include a SMIA Combining Zone and the Title 18 SMIA
Combining Zone does not apply to any surface mines which are regulated by Title 19. For this
reason, the BOCC finds there are no provisions in the SMIA Combining Zone which would afford
the Cake Pit any protections via the waiver of remonstrance. Nonetheless, the record shows
that applicant has agreed to such a condition and so the BOCC imposes such condition.
C. Additional setbacks in the SMIA zone may be required as part of the site
plan review under DCC 18.56.100.
FINDING: The BOCC finds no additional setbacks should be required.
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D. An exception to the 250 foot setback in DCC 18.56.070(A) shall be allowed
pursuant to a written agreement for a lesser setback made between the
owner of the noise -sensitive or dust -sensitive use or structure located
within 250 feet of the proposed surface mining activity and the owner or
operator of the proposed surface mine. Such agreement shall be
notarized and recorded in the Deschutes County Book of Records and
shall run with the land. Such agreement shall be submitted and
considered at the time of site plan review or site plan modification.
FINDING: As noted above, the proposed residential lots will be located well beyond 250 feet of
the Mining Site No. 293. For this reason, the BOCC finds this criterion does not apply.
4. Section 18.56.080. Use Limitations.
No dwellings or additions to dwellings or other noise -sensitive or dust -sensitive
uses or structures shall be erected in any SMIA Zone without first obtaining site
plan approval under the standards and criteria set forth in DCC 18.56.090
through 18.56.120.
FINDING: The applicant proposes a new dwelling on each of the ten subdivision lots. Single-
family dwellings are considered dust- and noise -sensitive uses per DCC 18.04.03013. Criteria
under DCC 18.56.090 through 18.56.120 are addressed below.
The BOCC finds the proposed ROF is not a dust -or noise -sensitive use subject to the provisions
of this chapter.
6. Section 18.56.090. Specific Use Standards.
The following standards shall apply in the SMIA Zone:
New dwellings, new noise -sensitive and dust -sensitive uses or structures, and
additions to dwellings or noise and dust -sensitive uses or structures in existence
on the effective date of Ordinance No. 90.014 which exceed 10 percent of the
13 "Dust -sensitive use" means real property normally used as a residence, school, church, hospital or
similar use. Property used in industrial or agricultural activities is not "dust -sensitive" unless it meets
the above criteria in more than an incidental manner. Accessory uses such as garages and workshops
do not constitute dust -sensitive uses.
"Noise -sensitive use" means real property normally used for sleeping or normally used as schools,
churches, hospitals or public libraries. Property used in industrial or agricultural activities is not
"noise -sensitive" unless it meets the above criteria in more than an incidental manner. Accessory uses
such as garages or workshops do not constitute noise -sensitive uses.
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size of the existing dwelling or use, shall be subject to the criteria established
in DCC 18.56.100.
FINDING: DCC 18.56.100 is addressed below for the proposed single-family dwellings.
7. Section 18.56.100. Site Plan Review and Approval Criteria.
A. Elements of Site Plan. A site plan shall be submitted in a form prescribed
by the Planning Director or Hearings Body detailing the location of the
proposed noise -sensitive use, the location of the nearby surface mine
zone and operation, if any, and other information necessary to evaluate
the approval criteria contained in DCC 18.56.100.
FINDING: The BOCC finds that the application materials include all of the necessary
information to evaluate the approval criteria under DCC 18.56.100.
B. Site plan review and approval, pursuant to the County Uniform Land Use
Action Procedures Ordinance, shall be required for all uses in the SMIA
Zone prior to the commencement of any construction or use.
FINDING: The applicant has applied forSMlAsite plan review for the residential uses proposed
as part of the subdivision.
C. The Planning Director or Hearings Body may grant or deny site plan
approval and may require such modifications to the site plan as are
determined to be necessary to meet the setbacks, standards and
conditions described above.
FINDING: As discussed above, the BOCC finds the proposal will meet all required setbacks,
standards and conditions. For this reason, no modifications to the subdivision are necessary.
D. The site plan shall be approved if the Planning Director or Hearings Body
finds that the site plan is consistent with the site-specific ESEE analysis
in the surface mining element of the Comprehensive Plan and that the
proposed use will not prevent the adjacent surface mining operation
from meeting the setbacks, standards and conditions set forth in DCC
18.52.090, 18.52.110 and 18.52.140, respectively.
FINDING: As detailed below, the proposed subdivision meets the abbreviated review
standards under DCC 18.56.110(A) and, therefore, the standards under this criterion are
presumed to be met.
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E. Public notice shall be as set forth in DCC Title 22, the Uniform
Development Procedures Ordinance, except that in all cases notice of the
receipt of an SMIA application shall be sent to the mine owners and/or
operators whose SM -Zoned site triggered the SMIA review.
FINDING: Notice of this SMIA application was completed in accordance with DCC Title 22 and
includes notice to the mining operator of Surface Mining Site No. 293. The BOCC finds this
criterion is met.
8. Section 18.56.110. Abbreviated SMIA Site Plan Review.
A. A new or enlarged noise- or dust -sensitive use to which DCC 18.56.110
applies that is at least one-quarter mile from an SM Zone and that has
at least two dwellings or other noise- or dust -sensitive uses between it
and the SM zone is presumed to meet the approval criteria set forth in
DCC 18.56.100(D), and shall be processed under DCC 18.56.110.
B. Abbreviated SMIA site plan review shall require the submission of an
application in a form prescribed by the Planning Director or Hearings
Body and such documentation as is necessary to demonstrate
conformance with DCC 18.56.110(A).
C. Unless the underlying zoning at the SMIA site would require additional
review of the proposed use for some other land use permit, abbreviated
site plan review shall be conducted (1) administratively without prior
public notice; (2) with public notice of the Findings and Decision mailed
consistent with DCC 18.56.100(E), to all persons entitled to receive notice;
and (3) with an appeal period and procedures as set forth in DCC Title 22,
the Uniform Development Procedures Ordinance. Appellants may
submit evidence to overcome the presumption set forth in DCC
18.56.110(A).
FINDING: The closest residential lot (Lot 4) will be located at least 0.35 miles from Surface Mine
Site No. 293. Additionally, there are at least two existing dwellings located between Lot 4 and
Mine Site No. 293. For these reasons, the BOCC finds the proposed subdivision meets the
criteria under DCC 18.56.100(D).
The subject abbreviated SMIA review is part of a larger land use permit. Therefore, the
provisions under subsection (c) regarding administrative review do not apply. Notice of any
decision related to this project will be completed pursuant to Title 22 and DCC 18.56.100(E).
The approval of this application authorizes the development of a single-family home on any of
the proposed dwelling lots in the planned development without need for further SMIA reviews.
9. Section 18.56.120. Waiver of Remonstrance.
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The applicant for site plan approval in the SMIA Zone shall sign and record in
the Deschutes County Book of Records a statement declaring that the applicant
and his successors will not now or in the future complain about the allowed
surface mining activities on the adjacent surface mining site.
FINDING: The applicant has agreed to include a waiver of remonstrance for the Cake Pit,
despite the fact that no such waiver is required (as discussed above). A waiver of
remonstrance is also required for Mining Site No. 293. Therefore, the BOCC imposes a
condition of approval to record these waivers.
C. Chapter 18.84, Landscape Management Combining Zone
1. Section 18.84.020. Application of Provisions.
The provisions of this chapter 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 this
chapter 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 a landscape management
corridors in the comprehensive plan and the County Zoning Map. The
distance specified above shall be measured horizontally from the centerline
of designated landscape management roadways or from the nearest
ordinary high water mark of a designated landscape management river or
stream. The limitation in this section shall not unduly restrict accepted
agricultural practices.
FINDING: Both Johnson Road and Tumalo Creek are identified on the County Zoning Map
as the landscape management features. A portion of the subject property falls within these
Landscape Management Combining Zones. Therefore, the BOCC finds the provisions of this
chapter apply.
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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: The proposed ROF and PUD are allowed conditionally in the underlying RR -10
Zone and, therefore, are allowed 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.
FINDING: The structures requiring a building permit associated with the PUD will be the
dwellings. Only those dwellings that will be located on PUD Lots 8-10 will be within an LM
Combining Zone. This part of the code requires LM site plan review and approval will be
required for new dwellings on these lots prior to development, not prior to approval of the
planned development.
The applicant proposes boathouses as part of its request for approval of the ROF. The
boathouses are not located within an LM Zone and thus are not subject to LM review.
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: Substantial evidence in the record shows that no dwellings associated with the
PUD will be located within the Johnson Road LM Zone and only proposed Lots 8-10 will be
located within the Tumalo Creek LM Zone. The DCC requires LM review for these lots prior
to development. A condition of approval has been added to ensure compliance.
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D. Chapter 18.88, Wildlife Area Combining Zone
1. Section 18.88.020. Application of Provisions.
The provisions of DCC 18.88 shall apply to all areas identified in the
Comprehensive Pion 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 subject property is within the Tumalo deer winter range. Therefore, the BOCC
finds the provisions of this chapter apply.
2. Section 18.88.040. Uses Permitted Conditionally.
A. Except as provided in DCC 18.88.040(8), 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 applicant proposes an ROF and a PUD which are conditionally permitted in
the underlying RR -10 Zone. Both uses are conditionally permitted in the WA Zone.
B. The following uses are not permitted in that portion of the WA Zone
designated as deer winter ranges ***
1. Golf course, not included in a destination resort;
2. Commercial dog kennel;
3. Public or private school;
4. Bed and breakfast inn;
5. Dude ranch;
6. Playground, recreation facility or community center owned and
operated by a government agency or a nonprofit community
organization;
7. Timeshare unit;
8. Veterinary clinic;
9. Fishing lodge.
FINDING: Opponents argue that the ROF is not permitted in the WA Zone. They argue that
all recreational facilities are prohibited in the WA Zone by subsection (B)(6). The County
consistently applies this code provision to prohibit recreation facilities owned and operated
by a government agency or a nonprofit community organization, not to privately -owned
recreation facility requiring large acreage like the facility proposed by Tanager. The County's
comprehensive plan recognizes that private recreational facilities are not prohibited by the
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WA Zone. Section 2.6 of the plan explains that ODFW and other public agencies
recommended that the County prohibit private recreational facilities such as OHV courses,
paintball courses, shooting ranges, model airplane parks and BMX courses when the County
updated its comprehensive plan in 2011. This recommendation would not have been made
if private recreation facilities were already prohibited by the WA Zone. The BOCC chose,
however, not to amend the WA Zone to prohibit private recreational facilities and did not
prohibit such a use in the plan. As a result, the BOCC interprets DCC 18.88.040(6)(6) to not
prohibited the proposed ROF in the WA Zone.
3. Section 18.88.050. Dimensional Standards.
In a WA Zone, the following dimensional standards shall apply:
D. Residential land divisions, including partitions, in deer winter range
where the underlying zone is RR -10 or MUA-10, shall not be permitted
except as a planned development or cluster development conforming
to the following standards:
1. The minimum area for a planned or cluster development shall
be at least 40 acres.
2. The planned or cluster development shall retain a minimum of
80 percent open space and conform with the provisions of DCC
18.128.200 or 210.
3. Notwithstanding the provisions of DCC 18.128.200 or 210, or
DCC 18.60.060(C), the total number of residences in a cluster
development may not exceed the density permitted in the
underlying zone.
FINDING: The subject property dedicated to the PUD is approximately 104 acres in size.
Based on the tentative plan, more than the required 83.74 acres of open space are being
preserved; approximately 84 acres. The underlying RR -10 Zone will allow up to ten
residences on the 104 -acre property. The applicant proposes ten residential lots as part of
the PUD. For these reasons, the BOCC finds these criteria will be met.
4. Section 18.88.060. Siting Standards.
A. Setbacks shall be those described in the underlying zone with
which the WA Zone is combined.
FINDING: The applicable setbacks of the RR -10 Zone are addressed above.
B. The footprint, including decks and porches, for new dwellings
shall be located entirely within 300 feet of public roads, private
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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.
C. For purposes of DCC 18.88.060(B):
1. A private road, easement for vehicular access or
driveway will conclusively be regarded as having existed
prior to August 5, 1992 if the applicant submits any of
the following:
a. A copy of an easement recorded with the County
Clerk prior to August 5, 1992 establishing a right
of ingress and egress for vehicular use;
b. An aerial photograph with proof that it was
taken prior to August 5, 1992 on which the road,
easement or driveway allowing vehicular access
is visible;
c. A map published prior to August 5, 1992 or
assessor's map from prior to August 5, 1992
showing the road (but not showing a mere trail
or footpath).
2. An applicant may submit any other evidence thought to
establish the existence of a private road, easement for
vehicular access or driveway as of August 5, 1992 which
evidence need not be regarded as conclusive.
FINDING: The application materials include a Wildlife Habitat Management Plan (WHMP)
prepared by Dr. Wendy Wente of Mason, Bruce & Girard, Inc. Appendix A of the WHMP
includes figures that detail roads relevant to this criterion:
1. A road traverses the subject property from north to south located between the
western edge of the proposed ROF and the western property line. The location of
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this road from PUD Lot 1 to PUD Lot 3 matches the location of the "Proposed Private
60' Road and Utility Easement" depicted on the tentative plan.
2. Two roads traverse the property from north to south located along the eastern edge
of the ROF. The westernmost of these two "roads" is the cleared linear area
associated with utility poles. This line of utility poles is not a road pursuant to this
criterion because there is no evidence this pathway meets one of the criteria under
subsection (C) above. The easternmost of these two roads matches the location of
the "Existing 60' Road and Utility Easement" depicted on the tentative plan.
3. A road traverses the property from northeast to south located along the eastern
property line approximately parallel to the eastern property line and Tumalo Creek.
Evidence in the record supports a finding that each of the roads identified above exists. Per
the tentative plan, all proposed PUD lots will be aligned along one of the roads identified
above with each lot able to site a dwelling within 300 feet of one of these roads. For these
reasons, the BOCC finds this criterion will be met. A condition of approval shall be imposed
to ensure compliance.
Opponents argue that applicants created a "westerly road" on the western edge of the
property, adjacent to the south pond. The record includes aerial photographs from before
August 5th, 1992, which show that a road existed in essentially the same location.
Opponents argue that applicants either expanded the road, that the road had been
abandoned, or that the road never existed. The BOCC finds the opponents' arguments
unpersuasive, particularly in light of an affidavit from TID's operations manager, Mr. Robert
Varco, that details the history of an irrigation district road in the area. Beyond that, the
applicant has provided the original easement maps that created TID's system (and include
rights to create access and maintenance roads), as well as numerous aerial photographs that
clearly show a road existed prior to August 5, 1992. As the DCC provides, these aerial
photographs and easement documents conclusively establish the road's existence.
Therefore, new dwellings may be established on the proposed PUD lots. DCC 18.88.060.C.
In addition to meeting the 300 -foot siting criterion, Dr. Wente provided the following analysis
of potential dwelling locations in the WHMP:
"The proposed structures will be located within 300 feet of existing private roads that were
present in August of 1992 (see Pre -1976 and Pre -1990 Road Figures, Appendix A). The
proposed locations were selected by the Project Team while considering input from MB&G
to maintain a concentration of home sites around the South Pond and prevent additional
disturbance to wildlife habitat that would occur if they were placed in a different area on
the property within the WA Combining Zone. The currently planned location preserves the
larger contiguous area of mule deer winter range as open space to the north and west of
the development, including the travel corridor that transects the northern portion of the
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PSA. This proposed lot arrangement protects wildlife habitat values and migration
corridors to a higher degree than alternative plans that would more diffusely develop the
property within the WA Combining Zone, and therefore, it maintains compliance with DCC
18.88.060."
Therefore, the BOCC finds that substantial evidence in the record supports Dr. Wente's
analysis in this regard. Even if the aerial photos did not provide conclusive evidence of the
existence of the westerly road (as provided in the code), the applicant demonstrated that the
proposed development pattern provides equal or greater protection of wildlife habitat
values than other possible plans allowed by the 300' siting rule. This is especially true given
that the record shows that Dr. Wente consulted with ODFW on the specific development
pattern proposed. These criteria are met.
4. Section 18.88.070. Fencing Standards.
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: At this time, no new fencing is proposed. Per Section 4.2.6, Fencing, of the
proposed Covenant, Conditions and Restrictions (CC&Rs):
There shall be no fencing allowed between the Home and a pond. Fenced in enclosures
not exceeding 5,000 square feet shall be permitted along the side of the Home with the
prior approval of the [Architectural Review Committee, ARC]. All other fencing shall
require the prior approval of the ARC.
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The BOCC finds that this provision in the CC&Rs to allow 5,000 square feet of fencing along
the side of a dwelling complies with the exemption under subsection (B)(1) above. This
provision also allows other fencing with no apparent restriction specifically tied to this
approval criterion. For this reason, the Board finds that a condition of approval requiring all
fencing constructed as part of the PUD to comply with DCC 18.88.070 shall be imposed.
Additionally, the CC&Rs shall also be revised to reflect this condition of approval.
E. Chapter 18.116, Supplementary Provisions
FINDING: Although the BOCC found only the south reservoir (ski lake) is an ROF, the
applicant requests approval of the ROF to include both the southern and northern reservoirs,
so that it is clear both reservoirs may be used for passive recreation activities, including
fishing, kayaking, swimming, and other non -motorized watercraft use in addition to the more
active use proposed for the south reservoir.
1. Section 18.116.020. Clear Vision Areas.
A. In all zones, a clear vision area shall be maintained on the corners of
all property at the intersection of two streets or a street and a
railroad. A clear vision area shall contain no planting, fence, wall,
structure, or temporary or permanent obstruction exceeding three
and one-half feet in height, measured from the top of the curb or,
where no curb exists, from the established street centerline grade,
except that trees exceeding this height may be located in this area
provided all branches and foliage are removed to a height of eight feet
above the grade.
FINDING: This standard applies the intersections of the proposed private streets in the PUD
and intersections of private streets with public streets such as Buck Drive and Johnson Road.
This obligation applies to all such intersections and shall be met prior to approval of the final
plat.
2. Section 18.116.030. Off-street Parkin and Loadin
A. Compliance. No building or other permit shall be issued until plans
and evidence are presented to show how the off-street parking and
loading requirements are to be met and that property is and will be
available for exclusive use as off-street parking and loading. The
subsequent use of the property for which the permit is issued shall be
conditional upon the unqualified continuance and availability of the
amount of parking and loading space required by DCC Title 18.
Chapter 18.116.
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FINDING: Parking requirements related to the ROF are addressed below. Because the PUD
does not require Site Plan approval, the parking standards in DCC 18.116 do not apply. This
does not mean parking will not be required for future development in the PUD. Each lot in
the PUD will be required to provide parking spaces according to the parking standards in
effect at the time of development as a condition of future building permit approval.
B. Off -Street Loading. Every use for which a building is erected or
structurally altered to the extent of increasing the floor area to equal
a minimum floor area required to provide loading space and which
will require the receipt or distribution of materials or merchandise by
truck or similar vehicle, shall provide off-street loading space on the
basis of minimum requirements as follows:
1. Commercial, industrial and public utility uses which have a
gross floor area of 5,000 square feet or more shall provide truck
loading or unloading berths subject to the following table...
2. Restaurants, office buildings, hotels, motels, hospitals and
institutions, schools and colleges, public buildings, recreation
or entertainment facilities and any similar use which has a
gross floor area of 30,000 square feet or more shall provide off
street truck loading or unloading berths subject to the
following table...
FINDING: The applicant does not propose a use which requires a loading berth. The BOCC
finds no loading berths are required.
C. Off -Street Parking. Off-street parking spaces shall be provided and
maintained as set forth in DCC 18.116.030 for all uses in all zoning
districts. Such off-street parking spaces shall be provided at the time
a new building is hereafter erected or enlarged or the use of a building
existing on the effective date of DCC Title 18 is changed.
D. Number of Spaces Required. Off-street parking shall be provided as
follows:
9. Other uses not specifically listed above shall be provided with
adequate parking as required by the Planning Director or
Hearings Body. The above list shall be used as a guide for
determining requirements for said other uses.
FINDING: A ROF, or similar use, is not listed in the tables provided in subsection (D). Also,
the proposed ROF is a structure but is not a building so it does not require parking.
Nonetheless, the BOCC assessed the parking needs of the use and imposed parking
requirements as a condition of ROF approval to assure that there will be adequate parking
to serve the uses planned for the ROF.
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The ROF is proposed to include three boathouses which are buildings. The boat garages are
approximately 952 square feet each. The parking requirement for storage warehouses is
the most similar to this use. It requires 1 space per 2,000 square feet of floor area. As a
result, two parking spaces are required to serve the boathouses.
The applicant proposes nine parking spaces for the south reservoir (ski lake). This means
that a total of seven parking spaces above those required for the boat garages are provided.
The burden of proof states the expectation that most users of the ski lake will walk rather
than drive. Additionally, a maximum of one boat may use the south reservoir for water skiing
at one time. Given the proximity of the PUD dwellings and future dwellings on other legal
lots of record around the ski lake edge, the record supports the applicant's assertion that
some of the users will likely walk. The Easement Management Agreement ("EMA") grants
access to the ski lake to all members (including families and invitees), agents and employees
of EMA members14. After considering all of these factors and after reviewing the list of
parking requirements in the code as a guide, the BOCC finds that a total of nine parking
spaces are required. Nine parking spaces have been provided by the applicant's site plan. A
condition of approval has been imposed stating that required parking must be provided in
conjunction with the construction of the boat garages or prior to use of the south reservoir
for recreation activities.
The applicant proposes three parking spaces associated with the passive recreational use of
the north reservoir. The use of this parking area is also limited to EMA members (including
families and invitees) and agents and employees of EMA members. The north reservoir is
also in walking distance of all lots that may be included in the EMA. As a result, the BOCC
finds that, after considering the uses listed in the code's parking table, that a total of three
parking spaces are required for this facility. The applicant's site plan provides three parking
spaces. A condition of approval has been added requiring the three parking spaces to be
constructed prior to use of the north reservoir for recreation activities.
E. General Provisions. Off -Street Parking.
1. More Than One Use on One or More Parcels. In the event
several uses occupy a single structure or parcel of land, the
total requirement for off-street parking shall be the sum of
requirements of the several uses computed separately.
2. Joint Use of Facilities. The off-street parking requirements of
two or more uses, structures or parcels of land may be satisfied
by the same parking or loading space used jointly to the extent
that it can be shown by the owners or operators of the uses,
structures or parcels that their operations and parking needs
do not overlap at any point of time. If the uses, structures or
parcels are under separate ownership, the right to joint use of
14 Reference Section 1.3.1 of the EMA.
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the parking space must be evidence by a deed, lease, contract
or other appropriate written document to establish the joint
use.
FINDING: The parking standards of this chapter only apply to the ROF. Therefore, there is
not more than one use on one or more parcels for the purposes of these criteria. This
provision does not apply.
3. Location of Parking Facilities. Off-street parking spaces for
dwellings shall be located on the same lot with the dwelling.
Other required parking spaces shall be located on the same
parcel or another parcel not farther than 500 feet from the
building or use they are intended to serve, measured in a
straight line from the building in a commercial or industrial
zone. Such parking shall be located in a safe and functional
manner as determined during site plan approval. The burden
of proving the existence of such off -premise parking
arrangements rests upon the applicant.
FINDING: The proposed ski lake parking lot will be located within 100 feet of the boat ramp
and boat garages. The passive recreation parking lot will be located within 50 feet of the
water feature. The BOCC finds this criterion will be met.
4. Use of Parking Facilities. Required parking space shall be
available for the parking of operable passenger automobiles of
residents, customers, patrons and employees only and shall
not be used for the storage of vehicles or materials or for the
parking of trucks used in conducting the business or used in
conducting the business or use.
FINDING: A condition of approval to ensure compliance with this criterion has been
imposed.
5. Parking, Front Yard. Required parking and loading spaces for
multi family dwellings or commercial and industrial uses shall
not be located in a required front yard, except in the Sunriver
UUC Business Park (BP) District and the La Pine UUC Business
Park (LPBP) District and the LaPine UUC Industrial District (LPI),
but such space may be located within a required side or rear
yard.
FINDING: The proposal does not include a multi -family dwelling, commercial or industrial
use. This criterion does not apply.
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F. Development and Maintenance Standards for Off -Street Parking
Areas. Every parcel of land hereafter used as a public or private
parking area, including commercial parking lots, shall be developed
as follows:
1. Except for parking to serve residential uses, an off-street
parking area for more than five vehicles shall be effectively
screened by a sight obscuring fence when adjacent to
residential uses, unless effectively screened or buffered by
landscaping or structures.
FINDING: This criterion applies to a parking area for more than five vehicles if the parking
area is adjacent to residential uses. The proposed south reservoir parking lot will be adjacent
to at least the residential use on PUD Lot 1. The north reservoir parking lot is proposed to
include only three parking spaces. Accordingly, the BOCC finds this criterion applies only to
the south reservoir parking lot.
The south reservoir parking area is currently surrounded by mature trees to the north, east
and west. In addition to the existing tree cover, the applicant proposes six additional trees
on the north and southwest sides of the parking area and the applicant has proposed
parking area landscaping. The BOCC finds that this will provide effective buffering between
the uses. A condition of approval requiring maintenance of existing landscaping and
installation of the applicant's proposed new landscaping has been added.
3. Any lighting used to illuminate off-street parking areas shall be so
arranged that it will not project light rays directly upon any adjoining
property in a residential zone.
FINDING: The applicant does not propose any parking lot lighting. The BOCC finds this
criterion is inapplicable.
3. Groups of more than two parking spaces shall be located and
designed to prevent the need to back vehicles into a street or
right of way other than an alley.
FINDING: As depicted on the applicant's site plan, an access driveway of at least 100 feet in
length is proposed to serve the south reservoir parking area. The north reservoir parking
area is proposed to include an access driveway of approximately 30 feet in length. Given this
distance, vehicles will not be required to back onto a street or right-of-way. The BOCC finds
this criterion is met.
4. Areas used for standing and maneuvering of vehicles shall be
paved surfaces adequately maintained for all weather use and
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so drained as to contain any flow of water on the site. An
exception may be made to the paving requirements by the
Planning Director or Hearings Body upon finding that:
a. A high water table in the area necessitates a permeable
surface to reduce surface water runoff problems; or
b. The subject use is located outside of an unincorporated
community and the proposed surfacing will be
maintained in a manner which will not create dust
problems for neighboring properties; or
c. The subject use will be in a Rural Industrial Zone or an
Industrial District in an unincorporated community and
dust control measures will occur on a continuous basis
which will mitigate any adverse impacts on surrounding
properties.
FINDING: The applicant proposes to pave the parking areas in conjunction with the paving
of the PUD roads. No comments regarding dust impacts or water drainage issues have been
received, as it relates to the roads around the ROF and the road that provides access from
Johnson Road to the ROF. The record indicates that the roads are currently paved and
graveled. The BOCC finds that the roads must be maintained in no less than their current
graveled condition to control dust until such time that they are paved for PUD use. This
exception to the paving requirement is allowed because the ROF use is outside an
unincorporated community and because the applicant has improved the roads and will
maintain them as required by this code section. A condition of approval requiring
compliance with this code section has been imposed as a condition of approval of the ROF.
5. Access aisles shall be of sufficient width for all vehicular
turning and maneuvering.
FINDING: Table 1, Off -Street Parking Lot Design, of this chapter requires a 24 -foot -wide
access aisle for two-way traffic. Per the site plan, all access driveways to, and access aisles
within, the parking areas will be at least 24 feet in width. The BOCC finds this criterion is met.
6. Service drives to off-street parking areas shall be designed and
constructed to facilitate the flow of traffic, provide maximum
safety of traffic access and egress and maximum safety of
pedestrians and vehicular traffic on the site. The number of
service drives shall be limited to the minimum that will
accommodate and serve the traffic anticipated. Service drives
shall be clearly and permanently marked and defined through
the use of rails, fences, walls or other barriers or markers.
Service drives to drive in establishments shall be designed to
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avoid backing movements or other maneuvering within a
street other than an alley.
FINDING: The BOCC considers the approximately 100 -foot length of pavement from the
south reservoir parking lot to the PUD road to the north, to be a service driveway. Similarly,
the approximately 30 -foot length of pavement from the north reservoir to the PUD road to
the south is considered to be a service driveway.
The applicant proposes new private service driveways to serve both parking areas. As noted
above, the driveways and aisles are designed to meet the minimum 24 -foot width for two-
way traffic to facilitate the flow of traffic and ensure sufficient room for maneuvering
vehicles. Each parking area is proposed to be served by a single driveway, which is the
minimum necessary to serve the parking areas. The service driveways connecting to the
parking areas are located a significant distance from existing and proposed residential uses,
providing for the safety of pedestrians walking from residential uses to the ROF. The 100 -
foot and 30 -foot lengths of the driveways extending from the private PUD roadways to the
reservoir parking areas ensure vehicles will not be required to back onto a street right-of-
way.
The BOCC finds that a condition of approval requiring the service driveways connecting the
parking areas to the private PUD roads to be clearly and permanently marked pursuant to
this criterion is warranted, consistent with correspondence between staff and the applicant
dated October 9, 2017. A condition of approval to assure that the drives are marked has
been imposed as condition of approval of the ROF.
7. Service drives shall have a minimum vision clearance area
formed by the intersection of the driveway centerline, the
street right of way line and a straight line joining said lines
through points 30 feet from their intersection.
FINDING: The BOCC finds there are two service drives, one each associated with the parking
lots for the reservoirs. Based on the BOCC's review of the site plan, the minimum vision
clearance area will be met for both service drives. A condition of approval for the ROF has
been added.
8. Parking spaces along the outer boundaries of a parking area
shall be contained by a curb or bumper rail placed to prevent a
motor vehicle from extending over an adjacent property line or
a street right of way.
FINDING: Both parking areas are proposed to include a minimum ten -foot landscaped area
between the pavement and nearby property lines. The BOCC imposes a condition of
approval to require a curb around the outer edge of the parking areas to ensure compliance.
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G. Off -Street Parking Lot Design. All off-street parking lots shall be
designed subject to County standards for stalls and aisles as set forth
in the following drawings and table:
(SEE TABLE 1 AT END OF CHAPTER 18.116)
FINDING: The proposed driveways and access aisles will meet the minimum 24 -foot width
in Table 1. Based on the site plan, all proposed vehicular parking spaces within the parking
lots will meet the minimum nine -foot -wide by 20 -foot -long parking stall dimensions in Table
1. The BOCC finds this criterion is met.
2. Section 18.116.031. Bicycle Parking.
New development and any construction, renovation or alteration of an
existing use requiring a site plan review under DCC Title 18 for which planning
approval is applied for after the effective date of Ordinance 93-005 shall
comply with the provisions of DCC 18.116.031.
A. Number and Type of Bicycle Parking Spaces Required.
1. General Minimum Standard.
c. When the proposed use is located outside of an
unincorporated community, a destination resort, and a
rural commercial zone, exceptions to the bicycle
parking standards may be authorized by the Planning
Director or Hearings Body if the applicant demonstrates
one or more of the following:
i The proposed use is in a location accessed by
roads with no bikeways and bicycle use by
customers or employees is unlikely.
ii. The proposed use generates less than 50 vehicle
trips per day.
No existing buildings on the site will
accommodate bicycle parking and no new
buildings are proposed.
iv. The size, weight, or dimensions of the goods sold
or unlikely.
v. The use of the site requires equipment that
makes it unlikely that a bicycle would be used to
access the site. Representative examples would
include, but not be limited to, paintball parks,
golf courses, shooting ranges, etc.
FINDING: In Ski Lake I, the Hearings Officer made the following findings on page 58,
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With respect to exceptions, the subject property is located outside of any unincorporated
community, destination resort and rural commercial zone...Finally, the Hearings Officer
finds that given the location of the subject property and the nature of the proposed
recreational use, it is unlikely guests will travel to the facility via bicycle. For these reasons,
1 find the applicant's proposal qualifies for an exception to the bicycle parking
requirements under subparagraphs (1)...of this paragraph.
The BOCC adheres to the Hearings Officers's findings above and finds that an exception to
the bicycle parking standards is warranted.
E. Chapter 18.124, Site Plan Review
FINDING: Although the BOCC found only the south reservoir is a ROF, the applicant requests
approval of the ROF to include both the north and south reservoirs.
1. Section 18.124.030. Approval Required.
A. No building, grading, parking, land use, sign or other required permit
shall be issued for a use subject to DCC 18.124.030, nor shall such a
use be commenced, enlarged, altered or changed until a final site plan
is approved according to DCC Title 22, the Uniform Development
Procedures Ordinance.
B. The provisions of DCC 18.124.030 shall apply to the following:
3. All other uses that serve the general public or that otherwise
required parking facilities, including, but not limited to,
landfills, schools, utility facilities, churches, community
buildings, cemeteries, mausoleums, crematories, airports,
parks and recreation facilities and livestock sales yards; and
FINDING: The applicant proposes an ROF, which is a recreation facility that requires parking
facilities. Therefore, site plan review is required.
2. Section 18.124.060. Approval Criteria.
Approval of a site plan shall be based on the following criteria:
A. The proposed development shall relate harmoniously to the natural
environment and existing development, minimizing visual impacts
and preserving natural features including views and topographical
features.
FINDING: This criterion relates only to the ROF and not to the PUD.
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Natural Environment
The Hearings Officer in Ski Lake I found that the relevant natural environment is the
condition of the mining pit as it existed prior to KCDG's excavation and re -contouring of the
pit. Further, the Hearings Officer found that the area surrounding the reservoir consists of
mostly undisturbed forest and irrigated pasture. The Hearings Officer and the BOCC in the
present applications adheres to those findings.
Conflicting testimony was received about the state of the subject property in advance of the
creation of the reservoirs. Opponents claim that the area had been fully reclaimed, re -
vegetated, and had become wildlife habitat. Proponents state that the reclaimed mine sites
that existed prior to construction were barren. Aerial photographs show sparse vegetation.
The BOCC finds, based on the aerial photographs, that the proponents' testimony is more
persuasive and supported by substantial evidence. It is undisputed that the subject property
is a former surface mine. Within the confines of the current applications, it is the intent of
this BOCC to encourage redevelopment of surface mining areas.
Reservoir Appearance
The Hearings Officer in both Ski Lake I .and the present applications found that the south
reservoir's stark appearance, unnatural shape and steep slopes are not harmonious with the
natural environment. The Hearings Officer in Ski Lake I further found that the south
reservoir's appearance may be made more natural looking by re -contouring its steepest
banks and revegetating the areas between the banks and forested areas. In considering the
former use of the site as a surface mine and its condition after reclamation, the BOCC finds
the proposed ROF can be made harmonious with the natural environment by complying with
the proposed Landscape Plan. The BOCC further finds that no re -contouring of any slopes
associated with the south reservoir is necessary.
The Hearings Officer in both Ski Lake I and the present applications found the north
reservoir's natural appearance is harmonious with the natural environment. The BOCC
adheres to this finding for the north reservoir.
Wildlife
In response to the Hearings Officer's findings in Ski Lake I, the applicant included with this
application a Landscape Plan and a Wildlife Habitat Mitigation Plan ("WHMP") to address
impacts to wildlife and habitat. Together, the Plans include measures to revegetate barren
and disturbed areas associated with the ROF, retain existing vegetation for habitat, and
provide for on-going management of these areas. The BOCC finds the ROF will be
harmonious with wildlife and associated habitat subject to compliance with both the
Landscape Plan and the WHMP.
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Views
Based on photographs in the record, the Hearings Officer in Ski Lake I found existing views
from and across the subject property are of terrain and vegetation and not of mountains or
other more distance vistas. The Hearings Officer found the southern reservoir is of such a
low profile that its design minimizes visual impacts on nearby residences. With respect to
the boathouse, dock, and guest parking area, the Hearings Officer further found existing
vegetation on the subject property is sufficient to adequately screen these features from
surrounding residences.
The BOCC adheres to these findings for both the south and north reservoirs and finds the
ROF will not impact views from and across the subject property.
Existing Development
The Hearings Officer in Ski Lake I found the area surrounding the subject property consisted
primarily of residential development, including two subdivisions (Klippel Acres and
Saddleback), along with two active surface mines, Tumalo Creek, and the Tumalo Feed Canal.
The Hearings Officer and BOCC in the present applications adheres to this finding here. The
BOCC further finds that the existing development on-site is the mining pit prior to creation
of the reservoirs.
Residential Uses
At the outset, the BOCC notes that the existing residential uses are, in many cases,
surrounded by or near to existing surface mining sites. This included the previous surface
mining on the subject property. For this reason, the BOCC finds the residential uses in the
area are already impacted by noise associated with surface mining in the area and are clearly
harmonious with the surface mining in the area.
Both County Hearings Offivers found that the size of the south reservoir is out of character
with the size of the surrounding residential lots. Both Hearings Officers also found the south
reservoir is not harmonious with existing rural residential development because of the steep
banks, and lack of vegetation between the reservoir and the forested areas on-site. The
BOCC disagrees that the size of the south reservoir makes it inharmonious with existing
development. Considering the lack of vegetation around the reservoirs, the BOCC finds that
compliance with the Landscape Plan will allow the reservoir to be harmonious with existing
residential uses. Further, the BOCC finds that no re -contouring of any slopes associated with
the south reservoir is necessary.
Opponents argue that noise impacts make the operating characteristics of the proposed use
unsuitable. The sound study and supplemental sound letter by Kerrie Standlee, P.E.,
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demonstrate, however, that sound impacts are minimal, if any. This finding is consistent
with that of both prior hearings officers. Opponents argue that the sound created by
motorized watercraft is more disturbing than other sound, and point to a letter from a Mr.
Al Duble. On balance, the BOCC agrees that the professional evidence submitted by the
applicant's professional engineer provides substantial evidence that sound impacts are
insignificant, and agree that such impacts are less than ambient levels observed on and
around the site.
Opponents cite concerns regarding traffic impacts considering the properties that are
included in the EMA. To address this issue, the BOCC finds it appropriate to limit access to
the ROF as detailed below.
Siting a concern that the ROF could become a 'mini -resort', and to further reduce potential
noise and traffic impacts, the BOCC finds it appropriate to include limitations on the ROF.
1. Hours of operation: 8 am to 8 pm;
2. Use of the ROF is limited to parcels currently owned (to require at least 50% or more
interest) by the common ownership of the property owner, in this case to properties
owned by the KC Development Group, LLC, Eric & Brianna Cadwell, the Cadwell Family
Trust, and Carlton and Lynda Cadwel115;
3. Only property owners within the EMA boundaries can operate their boats on the
south reservoir;
4. Only one motorized boat may be operating on the south reservoir at a time;
a. Other boats must be stored in the Boathouse or in the harbor area.
5. Only boats used for water-skiing, wake boarding and wake surfing are allowed on the
south reservoir. No other motorized watercraft are allowed;
6. Adhere to all Deschutes County noise ordinance standards, found at DCC Chapter
8.08; and
7. Boat restrictions include:
a. Inboard engines only;
b. Self-contained engines with internal oil lubrication systems;
c. Stock mufflers or quieter;
d. Direct drive or V -drive transmission;
e. No two-stroke motors (prevents oil contamination);
The BOCC finds the passive recreational activity on both reservoirs will have no impact to the
site or surrounding residential uses.
For these reasons, the BOCC finds the proposed ROF will be harmonious to existing
residential uses.
15 The BOCC finds that use by owners also includes use by their families, invitees, agents and
employees, consistent with Section 1.3.1 of the proposed EMA.
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Surface Mining
The proposed ROF is not a dust- or noise -sensitive use that could be impacted by existing
surface mining activities. Similarly, the proposed ROF will likely have no impact on mining
operations in the area. For these reasons, the BOCC finds the proposed ROF will be
harmonious with existing surface mining in the area.
Impact on Local Wells.
In Ski Lake I, the Hearings Officer found that a lined reservoir is much less likely to affect local
wells than surface mining. No new evidence has been submitted to refute this finding. For
this reason, the BOCC adheres to the Hearings Officer's finding.
Impact on Avion Water Company Resources.
In Ski Lake I, the Hearings Officer found there is insufficient evidence to conclude that a
reduction in water at Upper Tumalo Reservoir will impair Avion's water supply. No new
evidence has been submitted to refute this finding. For these reasons, the BOCC adheres
to the Hearings Officer's finding.
Preservation of Natural Features Including Views and Topographical Features. The Hearings
Officer in Ski Lake I found there are no views of mountains or other distant vistas from the
subject property; the design of the south reservoir and its associated structures would
minimize visual impacts on nearby residences; and that there were no topographical
features on the subject property requiring preservation prior to the construction of the south
reservoir. The BOCC agrees and adheres to those findings.
B. The landscape and existing topography shall be preserved to the
greatest extent possible, considering development constraints and
suitability of the landscape and topography. Preserved trees and
shrubs shall be protected.
FINDING: In Ski Lake I, the Hearings Officer made the following finding,
In light of the alteration of the topography that occurred before the reservoirs were
constructed [referring to the excavation associated with the prior surface mining on-
site], the Hearings Officer finds the question under this criterion is whether the pre-existing
topography was "preserved to the greatest extent possible, considering development
constraints and suitability of the landscape and topography." I find the relevant
development constraints included the need to create a reservoir of sufficient size and depth
to be lined and to hold the amount of water necessary to meet TID's needs as well as to
facilitate the proposed recreational use of the reservoir. I further find the existence of the
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reclaimed mining pits made the landscape and topography suitable for the new reservoirs
as it resulted in less excavation than would have been required if the pits had not existed.
This BOCC adheres to the Hearings Officer findings above, and adds that both reservoirs
were developed within pre-existing mining pits, making them uniquely suitable to
redevelopment as a ROF. The applicant is proposing to maintain existing vegetative
screening, and to increase additional screening pursuant to the landscaping requirements
in the Site Plan and the Landscape Plan. Compliance with this criterion is achieved with a
condition of approval requiring implementation of the Landscape Plan.
C. The site plan shall be designed to provide a safe environment, while
offering appropriate opportunities for privacy and transition from
public to private spaces.
FINDING: In Ski Lake I, the Hearings Officer made the following findings,
Opponents have expressed concern about the potential for persons to drown in the
southern reservoir, particularly if/when it ices over during winter months. The staff report
states, and the Hearings Officer concurs, that the southern reservoir presents no greater
hazard than is presented by any other accessible open water body such as Mirror Pond in
downtown Bend, other ponds in the Bend area built and managed by the Bend Park and
Recreation District, and the numerous irrigation ponds located throughout the county.
Opponents also argue the reservoir must be fenced as a "public swimming pool." As
discussed above, I have rejected that argument.
The Hearings Officer understands waterskiing and wakeboarding on the southern reservoir
also present the potential for injury or drowning. However, again I find the risk from this
activity on the subject property is no different from similar activity on other bodies of water.
Moreover, I find the applicant has adequately addressed these safety concerns by
proposing to limit motorized boating on the southern reservoir to a single boat at a time,
to prohibit alcohol use by persons skiing and driving the boat, and to require that anyone
driving the boat have an Oregon mandatory boater education card. In addition, the
applicant notes the design of the marina area, which is physically separated from the water
skiing portion of the southern reservoir, will allow the safe maneuvering, loading and
unloading of boats away from the water skiing area. And the applicant's site plan shows
the proposed guest parking area would be located over 100 feet from the southern
reservoir, providing significant separation between vehicles and pedestrians and boat
operations and skiing on the reservoir. Finally, I find that because of the nature of the
proposed use, there are no true "public" and "private" spaces requiring a transition area.
All proposed activities will occur on Tax Lots 824 and 828, and on the access driveway, all
of which would be located on private property controlled by the property owners.
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For the foregoing reasons, the Hearings Officer finds the applicant's proposal satisfies this
criterion.
This BOCC adheres to the Hearings Officer findings above. Unlike Ski Lake I, this proposal
includes the development of residential lots as part of the PUD. However, these areas are
still private areas as the ROF and PUD will be contained on wholly private lands. To the extent
the ROF may be considered used by a limited number of private parties, the BOCC interprets
its code to find that such areas in a private PUD are not a "public' space. The ROF is a wholly
private facility. The transition between private PUD lots to the private ROF does not create
any public spaces.76
With respect to providing for a safe environment, the record supports a finding that the
design of the ROF includes a number of features to enhance safety. The applicant proposes
24 -foot -wide service drives and aisles to allow adequate two-way vehicular travel and room
for vehicular movement within the parking areas. All parking spaces meet the minimum stall
dimensions required in Table 1 of DCC 18.116. The service drives connecting the private PUD
roads to the parking areas are of sufficient length to preclude the need to back onto a street
right-of-way. The burden of proof includes the following additional information:
The boat ramp is engineered to a specific grade with texture to promote safe entry and
exit. The pond has graduated levels. The South Pond will accommodate a single boat at a
time, and so no risk of collision or other accident is likely. The North Pond has a similar
low -slope design as well as a number of docks to allow safe ingress and egress for people
participating in passive recreation.
The BOCC finds the development pattern and facility to be designed to be safe environment
and provide appropriate transitioning between uses. This criterion is met.
D. When appropriate, the site plan shall provide for the special needs of
disabled persons, such as ramps for wheelchairs and Braille signs.
FINDING: The applicant proposes an accessible vehicle parking space in each parking area.
This criterion is met.
E. The location and number of points of access to the site, interior
circulation patterns, separations between pedestrians and moving
and parked vehicles, and the arrangement of parking areas in relation
to buildings and structures shall be harmonious with proposed and
neighboring buildings and structures.
16 The BOCC notes that the transition between the ROF and the PUD, including proposed landscaping,
provides additional privacy buffering between the subject property and adjacent property owners.
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FINDING: The ROF is proposed to include a single access driveway to each of the parking
areas associated with the reservoirs. Both access driveways are proposed to be located at
least 600 feet from any existing building and structures on neighboring lands, and at least
400 feet from potential residential building envelopes associated with the PUD. Distance,
and existing and proposed trees, could buffer these driveways from proposed and
neighboring buildings and structures. Other than the pavement associated with the parking
areas, no separate trails or pedestrian walkways are proposed which could conflict with
vehicular driveways and parking spaces. Similar to the driveways discussed above, the
parking areas will be buffered by distance and trees from proposed and neighboring
buildings and structures.
The part of the Landscape Plan required for this application provides additional buffering
and is described in and required by a condition of approval. This criterion is met.
F. Surface drainage systems shall be designed to prevent adverse
impacts on neighboring properties, streets, or surface and subsurface
water quality.
FINDING: The impervious surfaces proposed to be associated with the ROF are the lined
reservoirs, paved driveways and parking areas, boat ramp, docks, and three 952 -square -foot
boat garages. Given the limited amount of impervious surface proposed outside of the lined
reservoirs, and the fact that the grading of the site will cause stormwater to drain to the
reservoirs, the BOCC finds the ROF has been designed to prevent adverse impacts on
neighboring properties, street, or surface and subsurface water quality. This criterion is met.
G. Areas, structures and facilities for storage, machinery and equipment,
services (mail, refuse, utility wires, and the like), loading and parking
and similar accessory areas and structures shall be designed, located
and buffered or screened to minimize adverse impacts on the site and
neighboring properties.
FINDING: The proposal includes two parking areas and three boat houses. As noted
previously, the parking areas and boat houses will be screened from proposed residential
uses and neighboring properties by distance, existing trees, and the landscaping detailed in
the Landscape Plan. This criterion is met.
H. All above -ground utility installations shall be located to minimize
adverse visual impacts on the site and neighboring properties.
FINDING: No above -ground utility installations are proposed. This criterion does not apply.
i. Specific criteria are outlined for each zone and shall be a required part
of the site plan (e.g. lot setbacks, etc.).
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FINDING: The approval criteria for the underlying RR -10 Zone, along with the LM and SMIA
Combining Zones, are addressed above.
J. All exterior lighting shall be shielded so that direct light does not
project off-site.
FINDING: The proposal does not include any exterior lighting. Any exterior lighting installed
in the future must comply with this criterion.
K. Transportation access to the site shall be adequate for the use.
1. Where applicable, issues including, but not limited to, sight
distance, turn and acceleration/deceleration lanes, right-of-
way, roadway surfacing and widening, and bicycle and
pedestrian connections, shall be identified.
2. Mitigation for transportation -related impacts shall be
required.
3. Mitigation shall meet applicable County standards in DCC
17.16 and DCC 17.48, applicable Oregon Department of
Transportation (ODOT) mobility and access standards, and
applicable American Association of State Highway and
Transportation Officials (AASHTO) standards.
FINDING: Transportation access to the site is adequate for the uses proposed. The ROF is
proposed to include two service driveways that branch off from the private PUD roads and
connect to the parking areas. There are no bicycle or pedestrian facilities on nearby
properties which would require a connection to the ROF. Additionally, as discussed above,
the BOCC finds the applicant qualifies for an exception to the bicycle parking standards and,
therefore, no bicycle parking is required.
Applicant included a traffic study as part of its application. This study shows that no traffic
impacts associated with the ROF are anticipated and that no mitigation is required. No
opposing testimony has been submitted to dispute this evidence. The BOCC also concurs
with applicant that most traffic associated with the ROF will be on the applicant's existing
internal road system, associated with access to the concurrent PUD application. Neither the
Road Department nor the Senior Transportation Planner submitted any comments
indicating the proposed ROF will have adverse impacts on the County road system or that
any improvements to County roads are necessary. This criterion is met.
3. Section 18.124.070. Required Minimum Standards.
A. Private or shared outdoor recreation areas in residential
developments.
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1. Private Areas. Other than a development in the Sunriver UUC
Town Center District, each ground level living unit in a
residential development subject to site plan approval shall
have an accessible outdoor private space of not less than 48
square feet in area. The area shall be enclosed, screened or
otherwise designed to provide privacy for unit residents and
their guests.
FINDING: This criterion applies to residential developments subject to site plan review. The
proposed PUD is not subject to site plan review. The BOCC finds this criterion does not apply.
2. Shared Areas. Usable outdoor recreation space shall be
provided for the shared use of residents and their guests in any
apartment residential development, as follows...
FINDING: The applicant does not propose an apartment development. The BOCC finds this
criterion does not apply.
3. Usable outdoor recreation space shall be provided in the
Sunriver UUC Town Center District on a district -wide basis as
follows...
FINDING: The subject property is not within the Sunriver UUC Town Center District. The
BOCC finds this criterion does not apply.
4. Storage. In residential developments, convenient areas shall
be provided for the storage of articles such as bicycles,
barbecues, luggage, outdoor furniture, etc. These areas shall
be entirely enclosed.
FINDING: As noted above, the proposed PUD is not subject to site plan review and,
therefore, the Board finds it is not subject to this criterion.
B. Required Landscaped Areas.
1. The following landscape requirements are established for
multi family, commercial and industrial developments, subject
to site plan approval...
FINDING: The proposed ROF is not a multi -family, commercial or industrial development.
The BOCC finds this criterion does not apply.
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2. In addition to the requirement of DCC 18.124.070(B)(1)(a), the
following landscape requirements shall apply to parking and
loading areas:
a. A parking or loading area shall be required to be
improved with defined landscaped areas totaling no
less than 25 square feet per parking space.
FINDING: As discussed above, the parking area associated with the north reservoir will
include three parking spaces, requiring at least 75 feet of defined landscaping. The parking
area associated with the south reservoir will include nine parking spaces, requiring at least
675 square feet of landscaping. Per the Landscape Plan, attached as Exhibit C to this
decision, each parking area will be surrounded by well over 1,000 square feet of defined
landscaping to include native seed areas, low growing shrubs, and deciduous shade trees.
This criterion is met.
b. In addition to the landscaping required by DCC
18.124.070(B)(2)(a), a parking or loading area shall be
separated from any lot line adjacent to a roadway by a
landscaped strip at least 10 feet in width, and from any
other lot line by a landscaped strip at least five feet in
width.
c. A landscaped strip separating a parking or loading area
from a street shall contain:
1) Trees spaced as appropriate to the species, not
to exceed 35 feet apart on the average.
2) Low shrubs not to reach a height greater than
three feet zero inches, spaced no more than eight
feet apart on the average.
3) Vegetative ground cover.
FINDING: As discussed above, the north reservoir parking area will be adjacent to a
proposed private PUD road, requiring a ten -foot landscaped strip. Per the Landscape Plan,
the landscaped strip between the parking area and the PUD road would be at least 20 feet
wide. This landscaping strip would include trees meeting the spacing requirement, shrubs
and native seed areas.
The south reservoir parking area is proposed to be located adjacent to a property line,
requiring a five-foot landscaped strip. Per the Landscape Plan, the landscaping strip
surrounding the parking spaces would be five feet in width on the north and west sides, and
significantly greater than five feet in width on the south side. This parking area is not
adjacent to a property on its east side. Therefore, no minimum landscaping strip width is
required on the east side. This criterion is met.
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d. Landscaping in a parking or loading area shall be
located in defined landscaped areas which are
uniformly distributed throughout the parking or loading
area.
e. The landscaping in a parking area shall have a width of
not less than five feet.
FINDING: The proposed landscaping in the parking areas would be in defined landscaped
areas and will have a width of at least five feet. Based on the Site Plan, this criterion is met.
f
g.
Provision shall be made for watering planting areas
where such care is required.
Required landscaping shall be continuously maintained
and kept alive and attractive.
FINDING: Compliance with these criteria is met by a condition of approval to follow the
landscaping illustrated on the Site Plan and the Landscape Plan, as modified by this decision.
h. Maximum height of tree species shall be considered
when planting under overhead utility lines.
FINDING: No overhead utility lines exist on-site.
C. Non -motorized Access.
1. Bicycle Parking. The development shall provide the number and
type of bicycle parking facilities as required in DCC 18.116.031
and 18.116.035. The location and design of bicycle parking
facilities shall be indicated on the site plan.
FINDING: As addressed above, an exception to the bicycle parking requirements is
appropriate.
2. Pedestrian Access and Circulation:
a. Internal pedestrian circulation shall be provided in new
commercial, office and multi family residential
developments through the clustering of buildings,
construction of hard surface pedestrian walkways, and
similar techniques.
FINDING: The proposed ROF is not a commercial, office or multi -family development.
b. Pedestrian walkways shah connect building entrances
to one another and from building entrances to public
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streets and existing or planned transit facilities. On site
walkways shall connect with walkways, sidewalks,
bikeways, and other pedestrian or bicycle connections
on adjacent properties planned or used for commercial,
multi family, public or park use.
FINDING: The only proposed ROF buildings are three boathouses. The Hearings Officer in
the present applications found that the boathouses will be connected by a dock, rather than
a walkway. The BOCC adheres to that finding here. The properties comprising the ROF
facility are not adjacent to a public street. There are no existing or planned transit facilities
in the area, and no pedestrian or bicycle connections on adjacent properties. For these
reasons, the ROF facility is not required to provide walkways to public streets, existing or
planned transit facilities, or adjacent properties.
c. Walkways shall be at least five feet in paved
unobstructed width. Walkways which border parking
spaces shall be at least seven feet wide unless concrete
bumpers or curbing and landscaping or other similar
improvements are provided which prevent parked
vehicles from obstructing the walkway. Walkways shall
be as direct as possible.
FINDING: As noted above, the BOCC agrees with the Hearings Officer's finding that the dock
is not a walkway. For this reason, this criterion does not apply.
d. Driveway crossings by walkways shall be minimized.
Where the walkway system crosses driveways, parking
areas and loading areas, the walkway must be clearly
identifiable through the use of elevation changes, speed
bumps, a different paving material or other similar
method.
FINDING: No driveway crossings by walkways are proposed. This criterion does not apply.
e. To comply with the Americans with Disabilities Act, the
primary building entrance and any walkway that
connects a transit stop to building entrances shall have
a maximum slope of five percent. Walkways up to eight
percent slope are permitted, but are treated as ramps
with special standards for railings and landings.
FINDING: Any required accommodations to comply with ADA standards will be addressed
during building permit review.
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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:
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;
FINDING: The applicant requests two conditional use permits, one for the ROF and one for
the PUD.
The BOCC finds that for the purposes of addressing suitability of the site for its use for the
reservoirs, the "site" is considered as the subject property as it existed after the surface mine
was reclaimed, and prior to any excavation to create the now -existing reservoirs.
Recreation -Oriented Facility
Site
The area which includes the north reservoir was previously cleared and surface mined.
Aerial photographs in the record show that at least since July 2000 a small pond has been
located in the southeast corner of the area that is now the north reservoir.
The siting of the north reservoir in this area appears to take advantage of the previous
clearing of the land by surface mining operations. The future configuration of tax lot 820 is
large enough to accommodate the dimensions of the north reservoir. While it is true that
the current dimensions of the north reservoir are larger than the historic irrigation pond, the
site was a large open area suited for development as a reservoir.
The site of the south reservoir is located within the boundaries of the south pit of a formerly
reclaimed surface mine. Siting of the south reservoir in this area takes advantage of the
existing mining pit. Creation of the south reservoir removed sparse vegetation from the site
and deepened the reclaimed pit. This was a valid location on the subject property for the
reservoir as it is where the subject property receives irrigation water from TID and the
location on site where the least amount of excavation and disturbance of vegetation was
required to establish the reservoir. The south reservoir is located adjacent to TID's Tumalo
Feed Canal for convenient access to TID water. TID currently delivers over 55 acres of
irrigation water to the subject property. Delivery is taken at the south end of the south
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reservoir. Water then traverses the south reservoir and flows through a pipe to the north
reservoir, where it is pumped out for irrigation purposes. The applicant states that the south
reservoir will also be pumped out of for irrigation purposes. As a result, the location of the
south reservoir is suitable to the subject property and use as a reservoir.
The BOCC finds the site to be suitable for the ROF.
Design
The property which includes the north reservoir is large enough to accommodate the
reservoir dimensions. The north reservoir is lined to minimize water loss due to seepage,
and includes a piped connection to the south reservoir, which is also lined. The design also
includes an outflow structure between the north and south reservoirs. The north reservoir
provides a body of water that is an aesthetic upgrade from the previous mining disturbance.
The south reservoir is proposed to be comprised of two tax lots. The property which includes
the south reservoir is large enough to accommodate the dimensions of the reservoir. The
south reservoir is also lined and includes a weir and head gate to accept water from the
Tumalo Feed Canal for irrigation purposes. The south reservoir is different in size, shape and
appearance than typical rural irrigation ponds because it was designed to serve the
concurrent purpose of being used as a water ski lake. Nonetheless, the cited approval
criterion does not require that the reservoir look like rural irrigation ponds on other
properties. Instead, it asks whether the site is suitable for use considering the design of the
use. There is no question that the long narrow configuration of the subject property is
suitable for development with a reservoir. Additionally, it is also suitable for a reservoir
designed for use as a water ski lake and other motorized boating activities.
The shape of the south reservoir makes it suitable for the proposed use as a motorized
boating recreational lake. It takes advantage of the pre-existing mining pits, and forms a
body of water that can accommodate a single boat at a time. The fact that the reservoirs are
lined also makes them suitable, by design, for their function of providing water features that
allow passive and active recreation without wasting water. Additionally, the slopes of the
south reservoir that have been criticized as being too steep. The BOCC finds these steep
slopes do not make the site unsuitable for the proposed use as an ROF. That said, the BOCC
finds it appropriate to soften the look of the steep slopes by requiring compliance with the
Landscape Plan.
The BOCC notes that, when combined with the PUD, the ROF will be additionally screened
and buffered from adjacent properties. This design of the overall applications, in tandem,
clearly is designed to be, and is, suitable.
The BOCC finds that the design of the ROF is suitable to the site.
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Operating Characteristics
The applicant proposes to use the north reservoir for passive recreation (swimming,
kayaking, paddleboarding, fishing) and to use the south reservoir for motorized boating
activity (waterskiing, wake boarding, and wake surfing) as well as for passive recreation. The
applicant proposes the following restrictions on the motorized boating use:
1. Prohibit motorized activity during Winter Deer Range season (December 1' through
March 3150);
2. Only one motorized boat may be on the south Pond at a time;
a. Other boats must be stored in the Boathouse or in the harbor area.
3. No jet skis allowed;
4. Operational hours limited to 7:OOam to 10:OOpm;
5. Adhere to all Deschutes County noise ordinance standards, found at DCC Chapter
8.08;
6. Boat restrictions include:
a. Inboard engines only;
b. Self-contained engines with internal oil lubrication systems;
c. Stock mufflers or quieter;
d. Direct drive or V -drive transmission;
e. No two-stroke motors (prevents oil contamination);
7. No alcohol to be allowed on boats or use by skiers; and
8. All motor boat operators must carry the Oregon mandatory boater education card.
Opponents argue that noise impacts make the operating characteristics of the proposed use
unsuitable. The sound study and supplemental sound letter by Kerrie Standlee, P.E.,
demonstrate, however, that sound impacts are minimal, if any. This finding is consistent
with that of both prior Hearings Officers. Opponents argue that the sound created by
motorized watercraft is more disturbing than other sound, and point to a letter from a Mr.
Al Duble. On balance, the BOCC agrees that the evidence submitted by the applicant's
professional engineer provides substantial evidence that sound impacts are insignificant,
and agree that such impacts are less than ambient levels observed on and around the site.
Nevertheless, this BOCC finds that the level of intensity of use offered by applicant needs to
be adjusted. As such, to ensure compatibility and suitability, the Board finds that hours of
operation for motorized boating activity shall be restricted from 8:OOam until 8:OOpm, and
shall be prohibited during winter deer range season, which is from December 1st until March
31st of each year.
Opponents expressed concerned about the potential to use the south reservoir for
additional motorized craft such as jet skis and seabreachers. Applicant is already proposing
to prohibit the use of jet skis and limit the types of motorized craft by engine. However, the
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BOCC finds it reasonable to prohibit all other motorized watercraft not used for water-skiing,
wake boarding or wake surfing.
As noted above, the applicant proposes to limit access to the ROF to members of the EMA.
However, the BOCC finds that the proposed boundary map for the EMA is too broad, and
should be restricted to parcels currently owned (to require at least 50% or more interest) by
the common ownership of the property owner, in this case to properties owned by the KCDG,
Eric & Brianna Cadwell, the Cadwell Family Trust, and Carlton and Lynda Cadwell." This will
ensure compatibility and suitability by restricting use of the facility to properties currently
owned by such persons and entities, including the predecessor in interest of such properties.
To ensure that these parcels are the only ones with direct access to the facility, the BOCC
includes a condition of approval that the EMA be revised to achieve this limitation. A map of
the EMA Boundary is attached as Exhibit D to this decision.
The BOCC also conditions approval on revising the EMA to remove or modify section 3.1 of
the EMA to restrict addition of additional parcels. It is the intent of this BOCC that the
approval and use of the facility by such parcels runs with the land and that any modification
of the EMA be subject to a modification of this land use approval.
The BOCC imposes these conditions, as well as the other restrictions proposed by applicant
above. With these restrictions, the BOCC finds that the operating characteristics of the ROF
are suitable to the site.
Planned Unit Development
Suitability of Site
The PUD will be sited around the western and eastern edges of the south reservoir (PUD Lots
1-7), and along the western rim associated with Tumalo Creek (Lots 8-10). The PUD property
is large enough to accommodate the proposed two -acre lot sizes and allow for the
development of a single-family dwelling on each lot. Additionally, the BOCC previously
determined that the subject property is suitable to residential development when it
approved the zone change from Surface Mining to RR -10. The BOCC finds there is nothing
about the siting of the proposed lots which will be incompatible with the site, and thereby
finds that it is suitable.
Design
The design of the PUD takes advantage of existing roads on-site. The PUD also places the
residential lots in the southern portion of the PUD property allowing the preservation of at
17 The BOCC finds that use by owners also includes use by their families, invitees, agents and
employees, consistent with Section 1.3.1 of the proposed EMA.
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least 80 percent open space in the middle and northern portions of the property. The design
of the PUD property will allow for two points of access into the subdivision, improving access
for emergency vehicles in the event first responder access is needed. The record shows that
the design of the PUD was made with consultation with ODFW and preserves the wildlife
corridors and habitat to a high degree. For these reasons, the BOCC finds the design of the
PUD is suitable to the site.
Operating Characteristics
The PUD is expected to operate much like other residential uses and subdivisions in the area
by providing lots to accommodate a single-family dwelling. Each lot is large enough to
accommodate an on-site septic system. The BOCC finds there is nothing about the proposed
subdivision which will be incompatible with the site, and therefore finds it suitable.
2. Adequacy of transportation access to the site; and
FINDING:
Recreation -Oriented Facility
The ROF will be a private facility limited to serving members of the EMA who will live within
walking distance of the ROF and who will have access to the boathouses. The BOCC finds
the proposed use of the ROF for motorized boating activity and passive recreation would not
likely generate significant amounts of traffic which could impact the site. For these reasons
and for the same reasons detailed under 18.124.060(K) above, BOCC finds transportation
access to the site will be adequate.
Planned Unit Development
Access to the PUD is proposed to be from private roads connecting to Johnson Road and
Buck Drive. The Site Traffic Report prepared by Kittleson and Associates did not identify any
necessary road improvements to accommodate the PUD. Similarly, no necessary road
improvements were identified by Road Department or the County's Senior Transportation
Planner.
Opponents argue that the secondary access point proposed to Buck Drive may result in
nuisance impacts. The BOCC notes that neither the Community Development Department
nor the Road Department determined that a secondary access point is necessary. Therefore,
as a condition of approval, the BOCC requires that the secondary access point is gated for
emergency access only.
The BOCC finds that the transportation access to the site, with improvements necessary
pursuant to Title 17 (discussed below), is adequate and suitable.
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3. The natural and physical features of the site, including, but not
limited to, general topography, natural hazards and natural
resource values.
FINDING: The issue presented by this code criterion is whether the natural and physical
features of the site are such that it is suited for the use proposed. For instance, a site may
have slopes that make it too steep for the development of most uses.
Recreation -Oriented Facility
The general topography on the subject property prior to excavation for the reservoirs
consisted of steep canyon walls and slopes associated with Tumalo Creek, rolling terrain and
the reclaimed Klippel mining pits. The mining pits comprised two large depressed areas with
contoured slopes. The topography of the mining pits was altered to create the reservoirs.
Creation of the reservoirs left the existing tree cover intact. It removed sparse vegetation in
and around the reclaimed pits resulting in large areas of gravel, rock and dirt that will be
developed with homes and landscaped. The reclaimed surface mines were suited by their
physical features for redevelopment as a ROF including water features, as a large amount of
material had been removed prior to 2014. Outside of the steep slopes associated with the
south end of the south reservoir, the BOCC finds the site is suitable to the reservoirs
considering the topography of the site prior to reservoir creation. With respect to the steep
slopes, the BOCC finds these slopes can be made suitable to the site subject to compliance
with the proposed Landscaping Plan to soften the appearance of these slopes.
The only natural hazard that existed on the subject property prior to creation of the
reservoirs (and which exists at present) is the risk of wildfire. That risk is no greater on the
subject property than elsewhere on the west side of Bend. The record also shows that water
in the ROF has been made available and used for wildfire suppression. It is clear that this can
be a benefit to the surrounding area, and the public in general.
In Ski Lake I, the Hearings Officer found the natural resource values of the site, pre -
reservoirs, consisted of the reclaimed mine, including the native vegetation and wildlife
habitat that was removed in and around the current location of the reservoirs. In her
decision, the Hearings Officer recommended the applicant develop a wildlife habitat
management plan to address impacts to wildlife and habitat. The applicant proposes
compliance with the Wildlife Habitat Management Plan ("WHMP") to ensure suitability of the
site considering natural resource values. The BOCC finds the WI -IMP will mitigate impacts to
wildlife and habitat, and ensure continued protection of these resources. Compliance with
the WHMP is included as a condition of approval.
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With the imposition of a condition of approval requiring compliance with the proposed
Landscape Plan and the WHMP, the BOCC finds the site is suitable to the reservoirs
considering the natural and physical features of the site.
Planned Unit Development
The findings for the ROF related to topography, natural hazards and natural resource values
(detailed above) generally apply to the PUD as well. The major difference between the ROF
and PUD is the need to clear trees and grade building pads within Lots 4-10 to allow for
residential development, and the increased risk of wildfire associated with residential uses.
Lots 4-10 will require the removal of existing trees and understory to provide building pads
for single-family dwellings. The existing topography of Lots 1-10 are generally level. No
significant physical features will be impacted by the creation of Lots 1-10 and the residential
development associated with them. Given the relatively small acreage associated with this
residential development in comparison to the 80 percent open space that is proposed to be
preserved, the BOCC finds the impact to native vegetation, wildlife habitat, and natural
resource values is minor. This is particularly true here where the applicant proposes to
reestablish native vegetation around the south reservoir as illustrated in the Landscape Plan
and provide wildlife protections via the WHMP.
Lots 8-10 border Tumalo Creek. To avoid potential impacts to the creek, including habitat
impacts, the applicant proposes a 100 -foot building envelope setback from the ordinary high
water mark associated with Tumalo Creek. For these reasons, the BOCC finds the PUD is
compatible to the site considering the natural and physical features of the site.
In response to previous concerns regarding wildlife habitat (deer winter range) on the
subject property, the applicant submitted the WHMP prepared by Dr. Wendy Wente. The
WHMP recommends a number of measures to protect and enhance wildlife habitat,
summarized as follows:
1. Preservation of downed logs and standing snags
2. Regular brushing of brush shrub -steppe habitats
3. Plant pastures, areas adjacent to the south reservoir, and other soil disturbance areas
with native shrubs, grasses and forbs
4. Follow ODFW planting specifications, noxious weed management measures, and
preferred planting times
5. Use ODFW success criteria as described in Appendix A of the WHMP
6. Assessment by a professional biologist of any alteration of vegetation beyond that
prescribed by the WHMP, such as for fire fuels reduction
7. Monitoring and control of weeds and non-native plants
8. Management of western juniper
9. Preservation of live ponderosa pines in the open space areas
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10. Prohibition on fire wood cutting or vegetation alteration beyond that prescribed as
management for increased habitat value
11. Leash law for domestic dogs
12. Prohibition on livestock
13. One hundred foot building setback from Tumalo Creek for PUD Lots 8-10
14. Motorized boating activities restricted to April 1 through November 30
15. Prohibition of recreational use of off-road motor vehicles in the PUD open space
16. Reduced speed and wildlife crossing signs on roads within the PUD open space
17. Education program for residents and guests
18. Incorporating the WHMP into the CC&Rs for the EMA
19. CC&Rs will require an audit of compliance with WHMP by professional biologist
As detailed above, ODFW provided comments specific to the WHMP and the CC&Rs, and the
applicant agreed to certain adjustments in the WHMP and CC&Rs as detailed in Dr. Wente's
multiple submittals. The BOCC finds the WHMP program as adjusted is sufficient to assure
suitability and compatibility of the PUD and ROF with natural and physical features of the
site, including natural resource values. The BOCC specifically rejects ODFW's additional
proposed restrictions, including off-site mitigation requirements and the requirement to
obtain off-site soil to accomplish the Landscape Plan. Those restrictions/requirements are
not supported by the DCC nor are they necessary to find the ROF compatible and suitable.
To address the potential for increased wildfire risk associated with residential uses, the
applicant submitted a Wildfire Mitigation Plan ("WMP"). The WMP discusses a number of
measures to reduce wildfire risk including ladder fuels treatment, brush mowing, shelter in
place strategy, structural defensible space, building design and materials, use of outdoor
non-flammable materials, resident education and enforcement. Section 4.2.9 of the CC&Rs
requires all home construction to comply with the construction standards of the WMP. The
BOCC imposes the WMP as a condition of approval.
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).
FINDING:
Recreation -Oriented Facility
The factors listed in DCC 18.128.015(A) have been addressed above. The gist of this test is
whether the characteristics of the use addressed in DCC 18.128.015(A) will negatively impact
uses occurring or projected to occur on other properties.
Existing uses on surrounding land include rural residences, some small-scale farming, and
two active surface mines. There are small ponds on residential properties and larger ponds
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on the nearby Cake Pit to the east across Tumalo Creek. Projected uses on surrounding
lands are expected to be the same as existing uses. The proposed ROF use will not have any
impact on nearby mining uses as they are not noise or dust -sensitive uses. In addition,
neither use will negatively impact residential or farm uses on the EFU- and Forest -zoned land
in the surrounding area due to the significant distance between the reservoirs and these
lands.
One of the predominant features and uses in the area is surface mining. The Subject
Property used to be a surface mine. Two large and active mines border two of the four sides
of the KCDG properties. The property is in a SMIA Combining Zone. Contrary to opponents'
assertions, residential use is not the only relevant inquiry. Beyond that, the development
proposal provides additional buffering between the surface mining uses and residential
areas. This provides an orderly transition. Applicants have included substantial evidence
that also proves that the impacts of the proposed uses, including visual, sound, and traffic,
have been all but completely mitigated with respect to adjacent properties. As detailed
above, the BOCC finds that transportation access to the ROF is adequate and that no impacts
to the County road system will result. For these reasons, the BOCC finds the proposed ROF
use is compatible with existing and projected uses on surrounding lands.
The ROF use is a generally desirable use that typically benefits area properties, most
particularly because the addition of water features in the area is a positive addition to the
area as it provides a source of water for wildlife and for fighting any future wildfires. On
balance, it is much preferred to use reclaimed surface mining pits for the ROF than to leave
them as large, vacant excavated areas with sparse vegetation which are unattractive and
provide little or no value to the area. The improvements for the ROF are designed so that
they will not be visible to most residents.
With respect to impacts to views, the ROF will be compatible to rural residential uses on
surrounding land despite their size and appearance because they are not visible from most
of the surrounding properties. Additionally, the prior condition of the property was a surface
mine with limited vegetation after reclamation.
The applicant submitted a Landscape Plan to replace the barren landscape around the south
reservoir with vegetation. A letter from DSA Acoustical Engineers, Inc. concludes that the future
dwellings around the south reservoir will act as a partial sound barrier, further mitigating noise
impacts. The noise letter goes on to state that the conclusion reached above will be consistent
with the proposed operating hours of the ROF between 7:00 am and 10:00 pm18. Any future
dwellings around the south reservoir (pursuant to the concurrent PUD application) will also act
as a visual screen for the south reservoir, breaking up its size and dimensions.
18 As noted above, the BOCC limited hours of operation for the ROF to 8:00 am to 8:00 pm., (Formatted: Font: (Default) open sans
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The BOCC finds that the ROF is compatible with surrounding land uses based on the factors
listed in DCC 18.128.015(A)with imposition of conditions of approval to ensure compliance with
the Landscape Plan and WHMP, and modified with the conditions listed above under DCC
18.128.015(A).
The BOCC finds that the ROF including the water features is a much improved use of the subject
property that on balance enhances the surrounding properties and is compatible with
surrounding existing and projected uses.
Planned Unit Development
As determined by the Hearings Officer in Ski Lake I, the surrounding land includes rural
residences, some small-scale farming, and two active surface mines. As discussed under DCC
18.56, the applicant will be required to record a Waiver of Remonstrance to protect Surface
Mining Site 293. Due to the density of existing residential development and what appears to
be no change in forest or farming practices in the area, the BOCC finds the PUD will be
compatible with forest and farming practices in the area. Given the proximity and density of
existing rural residential uses, including subdivisions, and the amount of open space to be
preserved, the BOCC finds the proposed PUD will generally be compatible with the existing
residential development on surrounding lands.
Two concerns regarding compatibility of the PUD with land uses on surrounding properties are
addressed. First, the impact of the proposed private PUD road that will be constructed across
the northern portion of the Hammock property (tax lot 2700, Assessor map 17-11-13) raised
concerns regarding potential impact to privacy and rural character on the use of the adjoining
property owner to the north (tax lot 2600, Assessor map 17-11-13). The BOCC finds that the
overall volume of vehicle, bicycle and pedestrian trips along this road will be low, such that the
proposed PUD road in this location does not alter the overall compatibility of the PUD with
surrounding land uses. However, the BOCC is imposing a condition that the access to Buck
Drive is gated for emergency use only to reduce any potential impacts.
Second, the question of compatibility of the PUD with potential impact on the Cake Mine is
addressed above. For the reasons set forth there, the BOCC finds that no Waiver of
Remonstrance is required to protect the Cake Mine under the law or facts, however the
applicant has agreed to such waiver and so the BOCC imposes it as a condition of approval.
The PUD will be compatible with existing and projected uses on other properties,
considering natural resource values such as wildlife, subject to the applicant's
implementation of the WHMP developed by Dr. Wente that locates homes away from deer
migration corridors and that provides for protection of open space in a way that will enhance
winter deer range habitat. Furthermore, the creation of a water source for deer and elk
generally enhances wildlife habitat.
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C. These standards and any other standards of DCC 18.128 may be met by
the imposition of conditions calculated to insure that the standard will
be met.
FINDING: This code section does not impose relevant approval criteria. The BOCC imposes
the relevant conditions above to ensure compatibility.
2. Section 18.128.090. Medical Clinic Veterinary Clinic Club Lodge, Fraternal
Organization Community Center, Grange Hall Golf Course, Horse Stable and
Horse Events Requiring Conditional Uses, Grounds and Buildings For Games
or Sports, Country Club, Swimming, Boating, Tennis Clubs and Similar
Activities Government Structures and Land Uses, Parks, Playgrounds.
FINDING: The following criteria apply to the County's review of the ROF because it is a uses
that involves grounds and buildings for boating, swimming and similar activities. These
requirements do not apply to the PUD.
In considering the above, the Planning Director or Hearings Body may
authorize the conditional use after it has been determined that the following
will be provided:
A. Access from principal streets subject to Deschutes County Road
Department standards.
FINDING: Access to the ROF is proposed to be met from streets developed to subdivision
standards and discussed in detail below under the Title 17 criteria. No comments of concern
from the Road Department or the County's Senior Transportation Planner have been
submitted. This criterion is met.
8. Off street parking subject to DCC 18.116.030.
FINDING: The applicant's plan provides off-street parking that complies with DCC
18.116.030. Compliance with the standards of DCC 18.116.030 have been addressed above.
C. Building and site design provisions, including landscaping, that will
effectively screen neighboring uses from noise, glare, odor and other
adverse impacts.
FINDING: Landscaping is proposed by the Landscape Plan to effectively screen neighboring
uses from noise, glare and other adverse impacts. A review of the Landscape Plan, Site Plan
and pattern of area development shows that the landscaping, and building locations, and
site plan proposed will effectively screen neighboring properties from these potential
adverse impacts. The parking area is far removed from existing residential properties in the
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area that might be impacted by the use. The ROF is located below the level of area houses
such that visibility will be limited from surrounding residential uses.
The predominant adverse impact alleged by neighbors is noise. As detailed above, the Noise
Study and supplemental letter from DSA Acoustics indicate no significant noise impact is
expected from the motorized boating activities. No impacts from glare or odor were cited
by the neighbors, nor are glare or odor impacts expected given the proposed boating and
passive recreational activities.
Another potential impact is traffic on area streets. The STR prepared by Kittleson and
Associates indicates no traffic or transportation related impacts are expected. Neither the
Road Department nor the County's Senior Transportation Planner identified any adverse
transportation -related issues. The BOCC has also required the Buck Road access to the
subject property to be gated for emergency use only, which will prevent use of Buck Drive, a
local street in Klippel Acres, for access to the ROF.
This criterion is met.
D. Playgrounds, recreation facilities and community centers in the
Wildlife Area Combining Zone are subject to the provisions of DCC
18.88.
FINDING: The standards under DCC 18.88 are addressed above.
3. Section 18.128.210. Planned Development.
FINDING: Opponents argue that the applicant cannot receive approval for a PUD because
the site was developed first with the reservoirs, which, they allege is phased development
only permitted as a cluster development. The BOCC rejects that argument. This argument
is based on the fact that DCC 18.128.200(E) says that conditions for phased development of
cluster developments shall be specified and performance bonds required to assure
completion of the project if not completed prior to platting. This code provision merely
imposes a specific requirement for cluster developments that are phased. It does not
require phased development for cluster developments nor does it limit phased
developments to cluster developments only.
First, it is clear that the applicant is not proposing a phased development. The BOCC does
not agree that establishment of the reservoirs in advance of the PUD application constitutes
a phased development of a subdivision. The entire PUD will be built in one phase. The ROF
is to be developed on three parcels that are located outside of the three lots of record being
subdivided to create the PUD. Second, even if the PUD were a phased subdivision, the code
does not restrict phased development to cluster developments. Title 17 allows phasing of
any subdivision under the provisions of DCC 17.16.050 - 17.6.070, or DCC 17.16.080.
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Bishops argue that the applicant's choice to seek approval of a planned development
circumvent wildlife protections required for cluster developments that would prohibit
approval of the proposed PUD because it prohibits active recreational facilities in cluster
developments in the WA Zone. This argument is not correct for a number of reasons. First,
DCC 18.88.050(D) clearly allows an applicant to development either a planned or cluster
development by stating that residential land divisions are not allowed "except as a planned
development or cluster development" meeting specified standards set out in the WA Zone.
Second, the wildlife protections for cluster developments in DCC 18.128.200 are not a part
of the County's acknowledged program to meet Goal 5 so are not applicable to planned
developments in the WA Zone. The WA Zone itself allows compliance with either DCC
18.128.200 or 18.128.210. DCC 18.88.050(D)(2). Third, the ROF is located on lands that are
not being divided and, therefore, would not be subject to cluster development restrictions.
A. Such uses may be authorized as a conditional use only after
consideration of the following factors:
1. Proposed land uses and densities.
FINDING: The PUD property covers 104.68 acres and will include ten residential lots, for a
density of one dwelling per 10.468 acres. This density complies with the density limit of the
underlying RR -10 Zone and is significantly less dense than the majority of the surrounding
rural residential uses.
Opponents argue that the ROF, including the reservoirs, must be included in the overall
calculations related to the PUD and open space requirements. The BOCC rejects that
argument for lack of merit. The ROF is on entirely separate lands and may be approved
independently from the PUD. Even if the ROF were a part of the PUD, the density of
development would not exceed the allowed density of one home per ten acres because each
parcel outside of the PUD that is being developed as the ROF is ten or more acres in size and
is limited to development with not more than one single-family home. This criterion is met.
2. Building types and densities.
FINDING: The residential lots will be developed with a single-family dwelling and associated
residential accessory structures. Given the relatively small lot size and required setbacks,
the BOCC finds that there will not be building density any greater than the existing
development density on surrounding properties.
3. Circulation pattern, including bicycle and pedestrian
circulation, and a demonstration of how those facilities
connect to the County transportation facilities. Private
developments with private roads shall provide bicycle and
pedestrian facilities.
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FINDING: The PUD will provide two points of access onto Johnson Road and Buck Drive,
both County maintained roads. Access to Buck Drive shall be gated for emergency access
only, pursuant to a condition of approval. The PUD will include private roads developed to
County standards, including a 20 -foot -wide paved width to accommodate shared vehicle,
bicycle and pedestrian traffic pursuant to DCC 17.48.180(F)(1). The BOCC finds this criterion
is met.
4. Bicycle and pedestrian connections shall be provided at the
ends of cul de sacs, at mid block, between subdivision plats,
etc., wherever the addition of such a connection would reduce
the walking or cycling distance to a connecting street by 400
feet and by at least 50 percent over other available routes.
These connections shall have a 20 foot right of way, with at
least a 10 foot wide useable surface, and should not be more
than 100 feet long if possible.
FINDING: No cul-de-sacs are proposed. However, pursuant to DCC 17.48.160(E) and (F), the
BOCC finds a cul-de-sac at the terminus of the private road at PUD Lot 8 is required. This
can be accomplished by a hammerhead terminus that allows for fire apparatus turn around.
Due to the design and location of the lots, no blocks are proposed as part of this
development. The PUD does not adjoin a recorded subdivision plat.
The connecting street is the street that connects with the hammerhead. It is a private road
located to the west of the hammerhead. The tentative plan shows that a connection to the
connecting street across the open space, the most direct route, would reduce the walking or
cycling distance to that street by less than 50 percent over other available routes. As a result,
a bicycle and pedestrian connection is not required.
5. Parks, playgrounds, open spaces.
FINDING: The PUD will preserve more than 80 percent of the subject property as open
space. The BOCC finds that criteria related to the provision of open space have been met. A
park or playground will not be provided in the PUD.
6. Existing natural features.
FINDING: Discussion of existing natural features and the proposed reestablishment of
native vegetation is detailed above.
7. Environmental, social, energy and economic impacts likely to
result from the development, including impacts on public
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facilities such as schools, roads, water and sewage systems,
fire protection, etc.
FINDING: Given the relatively small number of additional residential lots proposed, the
record does not evidence any impact to schools. As noted in the STR and by comments from
the Road Department and the Senior Transportation Planner, the PUD will not result in any
transportation related impacts. The applicant proposes a private well system for the
residential lots. Each lot will be required to secure on-site septic permit approval. The
subject property is located within the Bend Rural Fire Protection District #2. Each owner will
pay taxes to help fund the District. The BOCC finds this criterion is met by its consideration
of these impacts.
8. Effect of the development on the rural character of the area.
FINDING: As noted previously, the BOCC approved the zone change from SM to RR -10,
providing the path for residential development at an average density that is lower than exists
on adjoining properties. The area to the south and west of the subject property is in an area
already heavily developed with rural residential uses. The property to the north and east of
the property is developed with two surface mines. The applicant will be required to record
waivers of remonstrance against mining activities on those properties so that the proposed
development will not have an adverse impact on those uses. The BOCC finds this criterion
is met.
9. Proposed ownership pattern.
FINDING: Per the burden of proof, KCDG intends to maintain title to the open space lands,
roads, and ROF. The BOCC finds this criterion is met.
10. Operation and maintenance proposal (i.e., homeowners
association, condominium, etc.).
FINDING: The applicant intends to form a homeowner's association (HOA). AM members of
the HOA will be included in the EMA. Property owner members of the EMA will be
responsible for maintenance of the private roads, community water system, and open space.
The BOCC finds this criterion is met.
11. Waste disposal facilities.
FINDING: Each lot will be required to secure on-site septic permit approval. The BOCC finds
this criterion is met.
12. Water supply system.
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FINDING: The applicant states a private well system will be used to provide water to the
residential lots. The applicant's Exhibit KK and LL are well logs for nearby properties. The
BOCC finds this criterion is met.
13. Lighting.
FINDING: No street lighting is proposed. Per Section 4.19 of the CC&Rs, no exterior lighting
shall be installed or maintained on any lot, unless approved by the Architectural Review
Committee (ARC). Any lighting will be required to comply with the County outdoor lighting
ordinance then in effect.
14. General timetable of development.
FINDING: The applicant states an intention to commence construction of subdivision
improvements upon receiving land use approval. The BOCC finds this criterion is met.
B. The conditional use may be granted upon the following findings:
1. All subdivision restrictions contained in DCC Title 17, the
Subdivision/Partition Ordinance, shall be met.
FINDING: Applicable Title 17 criteria are addressed below.
2. The proposed development conforms to the Comprehensive
Plan.
FINDING: The Comprehensive Plan does not include mandatory approval criteria. Rather,
all policies and goals of the Comprehensive Plan are articulated within specific approval
criteria in the zoning and subdivision codes. The proposed density of the PUD matches the
density of the underlying RR -10 Zone and, therefore, complies with the Comprehensive Plan
designation of Rural Residential Exception Area for the subject property. The PUD complies
with all requirements of the WA Zone, as well as with applicable conditional use criteria.
Accordingly, the BOCC finds that the PUD conforms to all applicable zoning criteria such that
the PUD complies with the Comprehensive Plan.
3. Any exceptions from the standards of the underlying district
are warranted by the design and amenities incorporated in the
development plan and program.
FINDING: The underlying RR -10 Zone requires a minimum lot size of ten acres and a solar
setback. The WA Combining Zone requires that the subdivision be either a planned
development or cluster development that provides at least 80 percent of the property in
open space. No minimum or maximum lot size is established for planned developments but
the cluster development code imposes a two -acre minimum and three -acre maximum lot
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size for residential dwelling lots. The provision of 80 percent open space warrants the two -
acre lot size proposed for the PUD. The small lot size merits the elimination of the solar
setback as an exception to the code. The two -acre minimum lot size is allowed by State
administrative rules addressed above. The BOCC finds this criterion is met.
4. The proposal is in harmony with the surrounding area or its
potential future use.
FINDING: The surrounding area includes rural residential areas and active surface mines.
The proposed PUD will provide a transitional development between the active surface mines
and existing residential uses. The PUD is designed to surround the concurrently applied for
ROF and is harmonious with that use by design. The applicant has been required to sign
waivers of remonstrance to assure that the PUD is in harmony with and will not impede
surface mining operations in the surrounding area. The single-family homes allowed by the
PUD are the same use occurring to the west and south of the property on five acre lots. The
lot size is smaller but the lot size is harmonious given the fact the PUD maintains over 80
acres in permanently preserved open space and meets the overall density standard of the
RR -10 Zone. Because of this, and for the reasons set forth above under DCC 18.124, the
BOCC finds the proposed PUD is harmonious with surrounding lands.
5. The system of ownership and the means of developing,
preserving and maintaining open space is adequate.
FINDING: KCDG will own the open space. Ownership by KCDG is adequate. Development,
preservation and maintenance of open space will be accomplished via the CC&Rs and EMA,
which will be recorded against the property. The CC&Rs and EMA provide an appropriate
means of preserving and maintaining open space that will be held off limits from future
development.
6. That sufficient financing exists to assure the proposed
development will be substantially completed within four years
of approval.
FINDING: The applicant and its principals have advised the County they have access to
sufficient funds to assure the development will be substantially completed within four years
of approval. The BOCC finds these statements credible given the level of commitment the
applicant has shown in pursuing land use approvals and developing professional prepared
plans for the development. Additionally, the applicant and owner have defended against
litigation over a number of years in multiple forums. The BOCC finds this demonstrates
sufficient financing to complete the project within four years
7. Sixty five percent of the land is to be maintained in open space.
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FINDING: The applicant proposes to maintain 80 percent of the property in open space.
Bishops argue that the PUD cannot meet the standards in the code related to open space
because, the ponds' surface area should be included in the overall calculation of compliance
with open space requirements for the PUD. DCC 18.128.210(B)(7) requires 65% "of the land"
to be maintained as open space. The land referred to by the code is the land included in the
planned development by the applicant; typically the land being subdivided. The applicant in
this case has included three legal lots of record in the subdivision/planned development, but
none include the ROF. DCC 18.88.050(D) increases the amount of open space required to
80% for land divisions in the WA Zone but does not impose an open space requirement on
lands outside of the boundaries of land being divided. Given these facts, the BOCC does not
interpret the code to require lands that are outside of the PUD to be included in open space
calculations. The requirement of the relevant code provisions, as applied to this case, is that
the proposed planned development that consists of 104.68 acres provide at least 80% open
space, or 83.74 acres. The applicant has exceeded this requirement by preserving 83.75
acres of the subject property of the PUD as open space. The lands associated with the ROF
are not considered or included as they are not part of the planned development. The BOCC
finds this criterion is met.
8. Adequate provision is made for the preservation of natural
resources such as bodies of water, natural vegetation and
special terrain features.
FINDING: The applicant proposes to impose a 100 -foot building setback from the ordinary
high water mark of Tumalo Creek. The WH MP includes measures to maintain and enhance
existing natural vegetation, wildlife habitat, and wildlife corridors on-site. The former mining
pit is not a special terrain feature that should be preserved. For these reasons, the BOCC
finds this criterion will be met.
C. All applications for planned developments shall include the materials
and information required for approval of a subdivision as specified in
DCC Title 17, the Subdivision/Partition Ordinance and the materials
and information required for approval of a conditional use as
specified in DCC Title 18.
FINDING: The applicant includes a burden of proof and exhibits intended to demonstrate
compliance with all applicable Title 17 and Title 18 criteria, as well as applicable state laws.
The BOCC finds the information submitted is adequate to comply with the approval criteria.
1. Approval for the conditional use application and the planned
development application may be given simultaneously.
FINDING: The applicant requests approval of the conditional use permit and planned unit
development simultaneously.
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D. Dimensional Standards:
1. Setbacks and height limitations shall be as determined by the
Planning Director or Hearings Body upon review of the evidence
submitted.
FINDING: The applicant proposes to honor the yard setbacks and height limitation of the
RR -10 Zone with the exception of the solar setback. Given the small size of the proposed lots
and shading by existing vegetation, the BOCC will not impose a solar setback. We further
find compliance with the RR -10 yard setbacks and height limitation, the proposed Tumalo
Creek setback, and the requested solar setback exception are appropriate to the
development.
2. Densities shall not exceed that established by the underlying
zone.
FINDING: The PUD will have a density of one dwelling per 10.648 acres, not exceeding the
density of one dwelling per five acres for RR -10 -zoned properties within one mile of an
acknowledged urban growth boundary. The BOCC finds this criterion will be met.
3. The minimum lot area, width, frontage and yard requirements
otherwise applying to individual buildings in the zone in which
a planned development is proposed do not apply within a
planned development. An equivalent overall density factor
may be utilized in lieu of the appropriate minimum lot area.
FINDING: This code section provides that none of the RR -10 Zone lot area, frontage and
yard (setback) requirements of the zone apply to lots in the planned development except to
the extent requirements are imposed by this decision such that equivalent density
requirements are met. The applicant has proposed to meet the yard requirements of the
RR -10 Zone with the exception of the solar yard requirement. The BOCC has agreed and has
required compliance with the RR -10 Zone yard and setback requirements with the exception
of the solar setback. The proposed development does not exceed the equivalent density
allowed by the RR -10 Zone.
4. Minimum size for a planned development shall be 40 acres.
FINDING: The PUD property is over 104 acres in size. This criterion is met.
E. Any commercial use permitted outright in an area zoned as an
unincorporated community as that term is defined herein will be
allowed in a planned development, subject to the following
conditions:
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1. Each use shall be wholly enclosed in a building.
2. The total area of such uses shall not exceed three percent of
the total area of the planned development.
FINDING: The applicant does not propose any commercial uses as part of the PUD.
TITLE 17, SUBDIVISION ORDINANCE
A. Chapter 17.16, Approval of Subdivision Tentative Plans and Master
Development Plans
1. Section 17.16.100. Required findings for approval.
A tentative plan for a proposed subdivision shall not be approved unless the
Planning Director or Hearings Body finds that the subdivision as proposed or
modified will meet the requirements of this title and Titles 18 through 21 of
this code, and is in compliance with the comprehensive plan. Such findings
shall include, but not be limited to, the following:
A. The subdivision contributes to orderly development and land use
patterns in the area, and provides for the preservation of natural
features and resources such as streams, lakes, natural vegetation,
special terrain features, agricultural and forest lands and other
natural resources.
FINDING: The proposed PUD will result in the creation of ten lots, each two acres in size, on
a 104 -acre property comprised of three lots of record. This density of development is less
than the allowable density of one lot per five acres for planned developments within one
mile of an urban growth boundary. The PUD will be located in an area already heavily
developed with rural residential uses including other subdivisions. The LM Zone imposes a
100 -foot building envelope setback from Tumalo Creek that will mitigate impacts to the
creek. The PUD preserves 80 percent of the property in open space. The WHMP includes
measures to maintain and enhance natural vegetation, wildlife habitat, and wildlife corridors
on-site. As noted previously, the BOCC finds the PUD will not adversely impact farm or forest
lands in the area. The BOCC finds this criterion will be met.
8. The subdivision will not create excessive demand on public facilities
and services, and utilities required to serve the development.
FINDING: The applicant is proposing to subdivide three lots of record to create a total of ten
building lots that will be developed with single-family homes. This allows an increase of
seven homes on these properties.
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Utilities such as power and phone have been fully developed to serve existing residential
development of the area. The additional seven homes will not create excessive demand on
these services. As noted in the STR, and by the Road Department and Senior Transportation
Planner, no transportation related improvements are required. The subject property is
within the service area of the Bend Rural Fire Protection District #2 and the Deschutes
County Sheriff.
The BOCC finds this criterion is met.
C. The tentative plan for the proposed subdivision meets the
requirements of Oregon Revised Statutes Section 92.090.
FINDING: ORS 92.090(1) requires that subdivision plat names can only use the same name
if it is a continuation of an existing subdivision, with a sequential numbering system, and
must either be platted by the same party or have the consent of the previous party. The
applicant is not proposing a continuation of an existing subdivision or a subdivision with the
same name as an existing subdivision.
Subsection 2 requires that the streets and roads are laid out to conform with existing plats
on adjoining property, that streets and roads held for private use are clearly indicated on the
tentative plan, and all reservations or restrictions relating to such private roads and streets
are set forth thereon. There are no adjoining plats with which the PUD must conform to.
The tentative plan indicates all roads are proposed to be private. Subsection 2 also requires
compliance with the County's zoning and land division laws. This decision demonstrates
compliance with the applicable provisions of those laws.
Subsections 3, 4 and 5 relate to final platting, the requirements of which will be addressed
during final plat review.
The BOCC finds this criterion will be met.
D. For subdivisions or portions thereof proposed within a Surface Mining
Impact Area (SMIA) zone under DCC Title 18, the subdivision creates
lots on which noise or dust sensitive uses can be sited consistent with
the requirements of DCC 18.56, as amended, as demonstrated by the
site plan and accompanying information required under DCC
17.16.030.
FINDING: The applicable criteria under DCC 18.56 for the SMIA Zone are addressed above.
E. The subdivision name has been approved by the County Surveyor.
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FINDING: Per the applicant's Exhibit NN, the proposed subdivision name of Pura Vida has
been approved by the County Surveyor. The final plat will be signed by the Surveyor to
ensure compliance. If the name is changed prior to filing of the final plat, it must first be
approved by the County Surveyor. A condition of approval has been imposed to assure
compliance with this code requirement.
2. Section 17.16.105, Access to subdivisions.
No proposed subdivision shall be approved unless it will be accessed byroads
constructed to County standards and by roads accepted for maintenance
responsibility by a unit of local or state government. This standard is met if
the subdivision will have direct access to an improved collector or arterial,
or in cases where the subdivision has no direct access to such a collector or
arterial, by demonstrating that the road accessing the subdivision from a
collector or arterial meets relevant County standards and has been accepted
for maintenance purposes.
FINDING: Access to the PUD will be from private roads connecting to Johnson Road and
Buck Drive. Johnson Road is an improved rural collector road maintained by Deschutes
County. Bishops have argued that this code provision is not met by the PUD tentative plan
the private road inside the subdivision crosses property owned by Carlton and Lynda Cadwell
in a road easement. The road easement allows improvement and maintenance of the
private PUD road.
The BOCC finds that the proposed PUD has direct access to Johnson Road because the
subdivision adjoins Johnson Road and has a point of access to Johnson Road. This is all this
code provision requires. Even if the code required direct access by each lot to Johnson Road,
it is provided by the private road system that will serve the PUD. This access is "direct" as it
is fully assured for each property in the PUD by the private road system of the PUD that
provides for each lot owner to guaranteed right to use the Johnson Road road access.
This criterion is met.
3. Section 17.16.115. Traffic Impact Studies.
A. The traffic studies will comply with DCC 18.116.310.
FINDING: The relevant requirements of DCC 18.116.310 are addressed below.
C. Guidelines for Traffic Impact Studies
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3. The following vehicle trip generation thresholds shall
determine the level and scope of transportation analysis
required for a new or expanded development.
b. Site Traffic Report (STR): If the development or change
in use will cause the site to generate 50-200 daily trip
ends, and less than 20 PM peak hour trips, a Site Traffic
Report will be required.
FINDING: The applicant submitted an STR prepared by Kittleson and Associates that
complies with the study requirements for an STR. The report shows that the PUD will
generate no more than 200 daily trip ends and less than 20 pm peak hour trips. The STR
concludes no mitigation is needed and that the area transportation system can handle the
increase in traffic that will be created by the proposed subdivision by meeting and exceeding
the County's minimum operational and safety standards. No improvements to existing
transportation systems were identified as being needed by the Road Department or the
Senior Transportation Planner. As a result, no off-site mitigation is required.
B. Chapter 17.36, Design Standards
1. Section 17.36.020, Streets.
A. The location, width and grade of streets shall be considered in their
relation to existing and planned streets, topographical conditions,
public convenience and safety, and the proposed use of land to be
served by the streets. The street system shall assure an adequate
traffic circulation system for all modes of transportation, including
pedestrians, bicycles and automobiles, with intersection angles,
grades, tangents and curves appropriate for the traffic to be carried,
considering the terrain. The subdivision or partition shall provide for
the continuation of the principal streets existing in the adjoining
subdivision or partition or of their proper(tyj projection when
adjoining property which is not subdivided, and such streets shall be
of a width not less than the minimum requirements for streets set
forth in DCC 17.36.
FINDING: The applicant proposes to meet the private road standards for the subdivision
roads. The layout of roads will provide direct access to each proposed residential lot and will
generally follow the location of roads existing on-site since at least 1976. The private roads
will provide adequate travel room and circulation for vehicles, bicycles, and pedestrians.
There are no principal streets in adjoining partitions or subdivisions which will require
continuation of into Pura Vida to serve land that has not yet been divided. No alterations to
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road layout or design were requested by the County Road Department. The requirements
of this code section have been met.
B. Streets in subdivisions shall be dedicated to the public, unless located
in a destination resort, planned community or planned or duster
development, where roads can be privately owned. Planned
developments shall include public streets where necessary to
accommodate present and future through traffic.
FINDING: Roads can be private in planned developments unless public streets are
necessary to accommodate present and future through traffic. There are no adjoining
properties for which public roads would be necessary to provide present and future through
traffic. Therefore, the BOCC finds the proposed private streets will meet this criterion.
2. Section 17.36.040, Existing Streets.
Whenever existing streets, adjacent to or within a tract, are of inadequate
width to accommodate the increase in traffic expected from the subdivision
or partition by the county roadway network plan, additional rights of way
shall be provided at the time of the land division by the applicant. During
consideration of the tentative plan for the subdivision or partition, the
Planning Director or Hearings Body, together with the Public Works Director,
shall determine whether improvements to existing streets adjacent to or
within the tract, are required. If so determined, such improvements shall be
required as a condition of approval for the tentative plan. Improvements to
adjacent streets shall be required where traffic on such streets will be
directly affected by the proposed subdivision or partition.
FINDING: This application has been reviewed by the Planning Director, Hearings Officer,
Road Department and now BOCC. All have determined that improvements are not required
to existing streets adjacent to or within the subject property other than those offered by the
applicant. This criterion is met.
3. Section 17.36.050, Continuation of Streets.
Subdivision or partition streets which constitute the continuation of streets
in contiguous territory shall be aligned so that their centerlines coincide.
FINDING: The proposed subdivision has no streets which will constitute a continuation of
other streets. This criterion does not apply.
4. Section 17.36.060, Minimum right of way and roadway width.
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The street right of way and roadway surfacing widths shall be in conformance
with standards and specifications set forth in chapter 17.48 of this title.
Where chapter 17.48 refers to street standards found in a zoning ordinance,
the standards in the zoning ordinance shall prevail.
FINDING: As indicated in the comments from the Road Department, all private roads must
be constructed to the private road standards of DCC 17.48. AH private roads will be reviewed
and approved by the Road Department. With a condition of approval to ensure compliance,
this criterion will be met.
5. Section 17.36.070, Future Resubdivision.
Where a tract of land is divided into lots or parcels of an acre or more, the
Hearings Body may require an arrangement of lots or parcels and streets
such as to permit future resubdivision in conformity to the street
requirements contained in this title.
FINDING: Although the open space area could theoretically be divided based on the
minimum lot size of the underlying RR -10 Zone, the WA Zone and planned development rules
require preservation of the open space area which precludes further division. Additionally,
pursuant to ORS 660-04-0040(7)(e)(H), the open space will be deed restricted to prohibit
future division until the open space is included within an urban growth boundary. This code
section allows but does not require the BOCC to require an arrangement of lots that permits
future resubdivision as it uses the word "may." Given the fact the County code does not allow
further division of any of the land in the PUD, the BOCC has chosen not to require a pattern
that will facilitate future resubdivision in conformity to street requirements of this title.
6. Section 17.36.080, Future extension of streets.
When necessary to give access to or permit a satisfactory future division of
adjoining land, streets shall be extended to the boundary of the subdivision
or partition.
FINDING: Based on a review of surrounding properties, no adjoining lands require the
extension of these PUD roads to permit satisfactory future division of land. All adjoining
lands which could be divided under their current zoning already have frontage on a County
road. This criterion is met.
7. Section 17.36.100, Frontage roads.
If a land division abuts or contains an existing or proposed collector or
arterial street, the Planning Director or Hearings Body may require frontage
roads, reverse frontage lots or parcels with suitable depth, screen planting
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contained in a non -access reservation along the rear or side property line, or
other treatment necessary for adequate protection of residential properties
and to afford separation of through and local traffic. All frontage roads shall
comply with the applicable standards of Table A of DCC Title 17, unless
specifications included in a particular zone provide other standards
applicable to frontage roads.
FINDING: No frontage road, reverse frontage lots, extra depth lots or screen planting was
requested by the Road Department. The BOCC is given discretion by the use of the word
"may" to impose requirements of this type and elects not to impose them because they
would be of no benefit to Johnson Road given the fact all new residential lots are located a
significant distance from Johnson Road.
8. Section 17.36.110, Streets adjacent to railroads, freeways and parkways.
When the area to be divided adjoins or contains a railroad, freeway or
parkway, provision may be required for a street approximately parallel to
and on each side of such right of way at a distance suitable for use of the
land between the street and railroad, freeway or parkway. In the case of a
railroad, there shall be a land strip of not less than 25 feet in width adjacent
and along the railroad right of way and residential property. If the
intervening property between such parallel streets and a freeway or a
parkway is less than 80 feet in width, such intervening property shall be
dedicated to park or thoroughfare use. The intersections of such parallel
streets, where they intersect with streets that cross a railroad, shall be
determined with due consideration at cross streets of a minimum distance
required for approach grades to a future grade separation and right of way
widths of the cross street.
FINDING: The subject property is not adjacent to a railroad, freeway or parkway. This
criterion does not apply.
9. Section 17.36.120, Street names.
Except for extensions of existing streets, no street name shall be used which
will duplicate or be confused with the name of an existing street in a nearby
city or in the County. Street names and numbers shall conform to the
established pattern in the County and shall require approval from the County
Property Address Coordinator.
FINDING: With a condition of approval to ensure compliance, the criterion can be met.
10. Section 17.36.130, Sidewalks.
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A. Within an urban growth boundary, sidewalks shall be installed on
both sides of a public road or street any in any special pedestrian way
within the subdivision or partition, and along any collectors and
arterials improved in accordance with the subdivision or partition.
8. Within an urban area, sidewalks shall be required along frontage
roads only on the side of the frontage road abutting the development.
C. Sidewalk requirements for areas outside of urban area are set forth
in section 17.48.175. In the absence of a special requirement set forth
by the Road Department Director under DCC 17.48.030, sidewalks and
curbs are never required in rural areas outside unincorporated
communities as that term is defined in Title 18.
FINDING: Subsections (A) and (B) do not apply because the proposed development is
located outside of an acknowledged UGB and unincorporated community. No sidewalks are
required by DCC 17.48.175 and the Road Department Director has not established a special
requirement for sidewalk under DCC 17.48.030. As a result, curbs and sidewalks are not
required.
11. Section 17.36.140, Bicycle Pedestrian and Transit Requirements.
A. Pedestrian and Bicycle Circulation within Subdivision.
1. The tentative plan for a proposed subdivision shall provide for
bicycle and pedestrian routes, facilities and improvements
within the subdivision and to nearby existing or planned
neighborhood activity centers, such as schools, shopping areas
and parks in a manner that will (a) minimize such interference
from automobile traffic that will discourage pedestrian or
cycle travel for short trips; (b) provide a direct route of travel
between destinations within the subdivision and existing or
planned neighborhood activity centers, and (c) otherwise meet
the needs of cyclists and pedestrians, considering the
destination and length of trip.
FINDING: The private roads will be paved to County standards to accommodate vehicles,
bicycles and pedestrians. The private roads will provide access to both recreation facilities
on-site. There are no nearby existing or planned neighborhood activity centers that the
proposed roads must connect to. This criterion is met.
2. Subdivision layout.
(a) Cul-de-sacs or dead-end streets shall be allowed only
where, due to topographical or environmental
constraints, the size and shape of the parcel, or a lack
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of through -street connections in the area, a street
connection is determined by the Planning Director or
Hearings Body to be infeasible or inappropriate. In such
instances, where applicable and feasible, there shall be
a bicycle and pedestrian connection connecting the
ends of cul-de-sacs to streets or neighborhood activity
centers on the opposite side of the block.
FINDING: One hammerhead will be required at the end of the street that serves PUD Lots
8 through 10. Due to a lack of through streets north of these lots and ownership of lots to
the north by persons not associated with the development, a continuation of the street to
the north to connect to Klippel Road is not feasible. Tumalo Creek canyon lies to the east and
south and precludes a topographical constraint to a street extension or connection to the
east and south. The hammerhead connects to the existing road to the west.
The BOCC finds it is not feasible for the applicant to provide an access across properties to
the north as they are not owned by the applicant. This criterion is be met.
(b) Bicycle and pedestrian connections between streets
shall be provided at mid -block where the addition of a
connection will reduce the walking or cycling distance
to an existing or planned neighborhood activity center
by 400 feet and by at least 50 percent over other
available routes.
FINDING: There are no existing or planned neighborhood activity centers for which mid -
block connections are warranted.
(c) Local roads shall align and connect with themselves
across collectors and arterials. Connections to existing
or planned streets and undeveloped properties shall be
provided at no greater than 400 foot intervals.
(d) Connections shall not be more than 400 feet long and
shall be as straight as possible.
FINDING: There are no existing local roads that will necessitate alignment of the private
roads that connect to Johnson Road or Buck Drive.
12. Section 17.36.150 Blocks.
A. General. The length, width and shape of blocks shall accommodate
the need for adequate building size, street width, and direct travel
routes for pedestrians and cyclists through the subdivision and to
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nearby neighborhood activity centers, and shall be compatible with
the limitations of the topography.
8. Within an urban growth boundary, no block shall be longer than 1,200
feet between street centerlines. In blocks over 800 feet in length,
there shall be a cross connection consistent with the provisions of DCC
17.36.140.
FINDING: The PUD will not include blocks and the subject property is not within a UGB.
13. Section 17.36.160, Easements.
A. Utility easements. Easements shall be provided along property lines
when necessary for the placement of overhead or underground
utilities, and to provide the subdivision or partition with electric
power, communication facilities, street lighting, sewer lines, water
lines, gas lines or drainage. Such easements shall be labeled "Public
Utility Easement" on the tentative and final plat; they shall be at least
12 feet in width and centered on lot lines where possible, except utility
pole guyline easements along the rear of lots or parcels adjacent to
unsubdivided land maybe reduced to 10 feet in width.
FINDING: The applicant proposes to locate all utilities with the roadways as shown on the
tentative plan. The roadways are all at least 12 feet in width. No additional utility easements
are necessary for utilities. With a condition of approval requiring any existing or necessary
utility easement be included on the final plat, this criterion will be met.
B. Drainage. If a tract is traversed by a watercourse such as a drainage
way, channel or stream, there shall be provided a stormwater
easement or drainage right of way conforming substantially with the
lines of the watercourse, or in such further width as will be adequate
for the purpose. Streets or parkways parallel to major watercourses
or drainage ways may be required.
FINDING: The subject property is not traversed by a watercourse.
14. Section 17.36.170 Lots - Size and shape.
The size, width and orientation of lots or parcels shall be appropriate for the
location of the land division and/or the type of development and use
contemplated, and shall be consistent with the lot or parcel size provisions
of Titles 18 through 21 of this code, with the following exceptions:
A. in areas not to be served by a public sewer, minimum lot and parcel
sizes shall permit compliance with the requirements of the
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Department of Environmental Quality and the County Sanitarian, and
shall be sufficient to permit adequate sewage disposal. Any problems
posed by soil structure and water table and related to sewage
disposal by septic tank shall be addressed and resolved in the
applicant's initial plan.
FINDING: The BOCC finds that the size, width and orientation of lots is appropriate for a
planned development in the RR -10 Zone and the WA Combining Zone. The lots will allow a
single-family dwelling to be sited on each lot and meet applicable setbacks. The applicant
proposes on-site septic for each residential lot. A representative of the Environmental Soils
Division will be required to sign the final plat to ensure adequate provision for septic waste
disposal. With a condition of approval requiring the applicant to obtain septic site evaluation
for each residential lot prior to final plat approval, the BOCC finds this criterion will be met.
15. Section 17.36.180, Frontage.
A. Each lot or parcel shall abut upon a public road, or when located in a
planned development or cluster development, a private road, for at
least 50 feet, except for lots or parcels fronting on the bulb of a cul de
sac, then the minimum frontage shall be 30 feet, and except for
partitions off of U.S. Forest Service or Bureau of Land Management
roads. Frontage for partitions off U.S. Forest Service or Bureau of Land
Management roads shall be decided on a case by case basis based on
the location of the property, the condition of the road, and the
orientation of the proposed parcels, but shall be at least 20 feet. In
the La Pine Neighborhood Planning Area Residential Center District,
lot widths may be less than 50 feet in width, as specified in DCC 18.61,
Table 2: La Pine Neighborhood Planning Area Zoning Standards. Road
frontage standards in destination resorts shall be subject to review in
the conceptual master plan.
8. All side lot lines shall be at right angles to street lines or radial to
curved streets wherever practical.
FINDING: All proposed residential lots will have at least 50 feet of private road frontage.
Generally, lot lines are at right angles to the private roads. The BOCC finds this criterion will
be met.
16. Section 17.36.190, Through lots.
Lots or parcels with double frontage should be avoided except where they
are essential to provide separation of residential development from major
street or adjacent nonresidential activities to overcome specific
disadvantages of topography and orientation. A planting screen easement
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of at least 10 feet in width and across which there shall be no right of access
may be required along the lines of lots or parcels abutting such a traffic
artery or other incompatible use.
FINDING: The proposed lots will not have double frontage.
17. Section 17.36.200, Corner lots
Within an urban growth boundary, corner lots or parcels shall be a minimum
of five feet more in width than other lots or parcels, and also shall have
sufficient extra width to meet the additional side yard requirements of the
zoning district in which they are located.
FINDING: This criterion does not apply because the property is located outside of a UGB.
18. Section 17.36.210, Solar access performance
A. As much solar access as feasible shall be provided each lot or parcel
in every new subdivision or partition, considering topography,
development pattern and existing vegetation. The lot lines of lots or
parcels, as far as feasible, shall be oriented to provide solar access at
ground level at the southern building line two hours before and after
the solar zenith from September 22nd to March 21st. If it is not
feasible to provide solar access to the southern building line, then
solar access, if feasible, shall be provided at 10 feet above ground
level at the southern building line two hours before and after the solar
zenith from September 22nd to March 21st and three hours before
and after the solar zenith from March 22nd to September 21st.
B. This solar access shall be protected by solar height restrictions on
burdened properties for the benefit of lots or parcels receiving the
solar access.
C. If the solar access for any lot or parcel, either at the southern building
line or at 10 feet above the southern building line, required by this
performance standard is not feasible, supporting information must be
filed with the application.
FINDING: The BOCC has approved an exception to the solar setback standards, above,
because compliance would be difficult considering the development pattern, lot sizes, and
existing vegetation. Supporting information about this issue was filed with the application.
19. Section 17.36.220, Underground facilities
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Within an urban growth boundary, all permanent utility services to lots or
parcels in a subdivision or partition shall be provided from underground
facilities; provided, however, the Hearings Body may allow overhead utilities
if the surrounding area is already served by overhead utilities and the
proposed subdivision or partition will create less than ten lots. The
subdivision or partition shall be responsible for complying with requirements
of this section and shall...
FINDING: This section does not apply because the property is located outside of a UGB. The
applicant proposes all utilities to be constructed underground.
20. Section 17.36.260, Fire hazards
Whenever possible, a minimum of two points of access to the subdivision or
partition shall be provided to provide assured access for emergency vehicles
and ease resident evacuation.
FINDING: The PUD will include two access points at Johnson Road and Buck Drive. The
BOCC finds this criterion will be met.
21. Section 17.36.280, Water and Sewer Lines.
Where required by the applicable zoning ordinance, water and sewer lines
shall be constructed to County and city standards and specifications.
Required water mains and service lines shall be installed prior to the curbing
and paving of new streets in all new subdivisions or partitions.
FINDING: No new sewer lines are proposed. The applicant proposes to use existing shared
water wells with water lines serving nearby residential lots. Neither Title 17 nor Title 18
contain construction standards for water lines constructed within private roadways. The
construction standards for utilities under DCC 17.48.230-280 apply to utilities within public
rights-of-way. With a condition of approval requiring water lines to be installed prior to
paving of the new private roads within the PUD, this criterion can be met
22. Section 17.36.290, Individual Wells.
In any subdivision or partition where individual wells are proposed, the
applicant shall provide documentation of the depth and quantity of potable
water available from a minimum of two wells within one mile of the proposed
land division. Notwithstanding DCC 17.36.300, individual wells for
subdivisions are allowed when parcels are larger than 10 acres.
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FINDING: The applicant proposes to use existing shared wells on the subject property and
has provided the required documentation of depth and quantity.
23. Section 17.36.300, Public water system
In any subdivision or partition where a public water system is required or
proposed, plans for the water system shall be submitted and approved by the
appropriate state or federal agency. A community water system shall be
required where lot or parcel sizes are less than one acre or where potable
water sources are at depths greater than 500 feet, excepting land partitions.
Except as provided for in DCC 17.24.120 and 17.24.130, a required water
system shall be constructed and operational, with lines extended to the lot
line of each and every lot depicted in the proposed subdivision or partition
plat, prior to final approval.
FINDING: The proposed use of existing shared wells is not a public water system. The
proposed lot sizes are greater than one acre. Per the well logs submitted as applicant Exhibit
KK and LL, static water level ranges from 533 feet to 799 feet. Per this criterion, an exception
to the community water system requirement is available to partitions only. For this reason,
a community water system will be required. This criterion also requires a required water
system to be constructed and operational, with lines extended to the lot line of each lot prior
to final plat approval. A condition of approval to ensure compliance is imposed below.
C. CHAPTER 17.44, PARK DEVELOPMENT
1. Section 17.44.010, Dedication of land.
A. For subdivisions or partitions inside an urban growth boundary, the
developer shall set aside and dedicate to the public for park and
recreation purposes not less than eight percent of the gross area of
such development, if the land is suitable and adaptable for such
purposes and is generally located in an area planned for parks.
B. For subdivisions or partitions outside of an urban growth boundary,
the developer shall set aside a minimum area of the development
equal to $350 per dwelling unit within the development, if the land is
suitable and adaptable for such purposes and is generally located in
an area planned for parks.
C. For either DCC 17.44.010 (A) or (B), the developer shall either dedicate
the land set aside to the public or develop and provide maintenance
for the land set aside as a private park open to the public.
D. The Planning Director or Hearings Body shall determine whether or
not such land is suitable for park purposes.
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E. If the developer dedicates the land set aside in accordance with DCC
17.44.010(A) or (B), any approval by the Planning Director or Hearings
Body shall be subject to the condition that the County or appropriate
park district accept the deed dedicating such land.
F. DCC 17.44.010 shall not apply to the subdivision or partition of lands
located within the boundaries of the Bend Metro Park and Recreation
District or the Central Oregon Park and Recreation District.
FINDING: The PUD property is located outside of a UGB and is not within the boundaries of
a formal park district. Therefore, the applicant will be required to dedicate land for the
development of a private park open to the public or pay a fee in lieu of dedication as
described under DCC 17.44.020. In this case, because the WA Combining Zone requires the
preservation of 80 percent of the property in open space, there are no lands outside of the
open space and residential lots which are available for park development. For this reason,
a fee in lieu of dedication is available to the applicant.
2. Section 17.44.020, Fee in lieu of dedication.
A. In the event there is no suitable park or recreation area or site in the
proposed subdivision or partition, or adjacent thereto, then the
developer shall, in lieu of setting aside land, pay into a park
acquisition and development fund a sum of money equal to the fair
market value of the land that will have been donated under DCC
17.44.010 above. For the purpose of determining the fair market
value, the latest value of the land, unplatted and without
improvements, as shown on the County Assessor's tax roll shall be
used. The sum so contributed shall be deposited with the County
Treasurer and be used for acquisition of suitable area for park and
recreation purposes or for the development of recreation facilities.
Such expenditures shall be made for neighborhood or community
facilities at the discretion of the Board and/or applicable park district.
B. DCC 17.44.020 shall not apply to subdivision or partition of lands
located within the boundaries of the Bend Metro Park and Recreation
District or the Central Oregon Park and Recreation District.
FINDING: As discussed above, the applicant has the option of paying the parks fee in lieu of
dedicating land for a private park. Although subsection (A) requires the applicant to pay"fair
market value," the amount of land that must be dedicated is set at a value of $350 per
dwelling unit. As a result, the County calculates the fee based on the $350 per dwelling unit
description under DCC 17.44.010(B) above. For this reason, the BOCC imposes a condition
of approval requiring the applicant to pay a parks fee of $3,500 ($350 x 10 dwelling units)
prior to final plat approval.
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D. CHAPTER 17.48, DESIGN AND CONSTRUCTION SPECIFICATIONS
1. Section 17.48.100. Minimum Right of Way Width.
The minimum right of way width is 60 feet unless specified otherwise in Table
A (or in any right of way specifications set forth for a particular zone in a
zoning ordinance). (See Table A set out at the end of DCC Title 17.)
FINDING: The applicant does not propose any public roads. All roadways will be private.
Per DCC 17.48.180(F)(1), planned developments limited to no more than ten residential lots
can include 20 -foot -wide paved roads. The BOCC finds this criterion is met.
2. Section 17.48.130. Road Names.
All roads shall be named in conformance with the provisions of the Deschutes
County uniform road naming system set forth in DCC Title 16.
FINDING: A condition of approval to ensure compliance is imposed below.
3. Section 17.48.140. Bikeways.
A. General Design Criteria.
1. Bikeways shall be designed in accordance with the current
standards and guidelines of the Oregon (ODOT) Bicycle and
Pedestrian Plan, the American Association of State Highway
Transportation Officials (AASHTO) Guide for Development of
New Bicycle Facilities, and the Deschutes County Bicycle
Master Plan. See DCC 17.48 Table B.
2. All collectors and arterials shown on the County
Transportation Plan map shall be constructed to include
bikeways as defined by the Deschutes County Bicycle Master
Plan.
3. If interim road standards are used, interim bikeways and/or
walkways shall be provided. These interim facilities shall be
adequate to serve bicyclists and pedestrians until the time of
road upgrade.
FINDING: Per DCC 17.48.180(F)(1), planned developments limited to no more than ten
residential lots can include 20 -foot -wide paved roads which are sufficient to accommodate
bicycle and pedestrian traffic. No collector, arterial or interim streets are proposed. The
BOCC finds this criterion is met.
B. Multi -use Paths.
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1. Multi -use paths shall be used where aesthetic, recreation and
safety concerns are primary and a direct route with few
intersections can be established. If private roads are
constructed to a width of less than 28 feet, multi -use paths
shall be provided.
2. Multi -use paths are two way facilities with a standard width of
10 feet, but with a 12 foot width if they are subjected to high
use by multiple users. These paths shall meet County multi-
use path standards and shall connect with bike facilities on
public roads.
FINDING: No multi -use paths are proposed or required.
C. Bike Lanes. Six foot bike lanes shall be used on new construction of
curbed arterials and collectors.
D. Shoulder Bikeways.
1. Shoulder bikeways shall be used on new construction of
uncurbed arterials and collectors.
2. Shoulder bikeways shall be at least four feet wide. Where the
travel lane on an existing arterial or collector is not greater
than eleven feet, the bikeway shall be a minimum of four feet
wide.
FINDING: No new collectors or arterials are proposed.
E. Mountain Bike Trails.
1. Mountain bike (dirt or other unpaved surface) trails may be
used as recreational or interim transportation facilities.
2. Trails used for transportation shall have a two foot minimum
tread width and a six foot minimum clearing width centered
over the trail, and a minimum overhead clearance of seven
feet. Trails used solely for recreational use may be narrower
with less clearing of vegetation.
FINDING: No mountain bike trails are proposed.
4. Section 17.48.160. Road Development Requirements - Standards.
A. Subdivision Standards. All roads in new subdivisions shall either be
constructed to a standard acceptable for inclusion in the county
maintained system or the subdivision shall be part of a special road
district or homeowners association in a planned unit development.
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FINDING: The proposed private roads will be constructed to County standards and
maintained by the Administrator of the EMA, as directed by the CC&Rs of the HOA. The BOCC
finds this criterion will be met.
B. Improvements of Public Rights of Way.
1. The developer of a subdivision or partition will be required to
improve all public ways that are adjacent or within the land
development.
2. All improvements within public rights of way shall conform to
the improvement standards designated in DCC Title 77 for the
applicable road classification, except where a zoning
ordinance sets forth different standards for a particular zone.
FINDING: As noted previously, the Road Department did not identify any required public
road improvements.
C. Primary Access Roads. The primary access road for any new
subdivision shall be improved to the applicable standard set forth in
Table A (or the applicable standard set forth in a zoning ordinance).
The applicable standard shall be determined with reference to the
road's classification under the relevant transportation plan. For the
purposes of this section a primary access road is a road leading to the
subdivision from an existing paved county, city or state maintained
road that provides the primary access to the subdivision from such a
road.
FINDING: The primary access roads that will connect to Johnson Road and Buck Drive will
comply with the requirements of Table A for private roads and will be constructed to a 20 -
foot width pursuant to DCC 17.48.180(F)(a). The BOCC imposes a condition of approval to
ensure compliance with Title 17 road standards and approval of all PUD roads by the Road
Department.
D. Secondary Access Roads. When deemed necessary by the County Road
Department or Community Development Department, a secondary
access road shall be constructed to the subdivision. Construction shall
be to the same standard used for roads within the subdivision.
FINDING: The need for a secondary access road was not identified by the Road Department.
E. Stubbed Roads. Any proposed road that terminates at a development
boundary shall be constructed with a paved cul-de-sac bulb.
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FINDING: The private road that ends at PUD Lot 8 terminates at the northern boundary of
the PUD property. For this reason, this stubbed road must be constructed as a paved cul-
de-sac which is defined by DCC 17.08.030 as "a short street having one end to traffic and
terminated by a vehicle turnaround." As noted above, the BOCC has accepted the applicant's
proposed hammerhead, which will satisfy this criterion.
F. Cul-de-sacs. Cul-de-sacs shall have a length of less than 600 feet,
unless a longer length is approved by the applicable fire protection
district, and more than 100 feet from the center of the bulb to the
intersection with the main road. The maximum grade on the bulb
shall be four percent.
FINDING: The proposed cul-de-sac will have a length greater than 600 feet. The Bend Fire
Department has reviewed the application and has not objected to the cul-de-sac
(hammerhead) length. The applicant has also been required to secure confirmation that the
cul-de-sac length is acceptable to Bend Fire Department. The BOCC imposes a condition of
approval to ensure compliance.
3. Section 17.48.180. Private Roads.
The following minimum road standards shall apply for private roads:
A. The minimum paved roadway width shall be 20 feet in planned unit
developments and cluster developments with two foot wide gravel
shoulders;
B. Minimum radius of curvature, 50 feet;
C. Maximum grade, 12 percent;
FINDING: The proposed private roads will have a paved width of 20 feet with two -foot -wide
gravel shoulders. The BOCC imposes a condition of approval to ensure compliance with
these criteria.
D. At least one road name sign will be provided at each intersection for
each road;
FINDING: The BOCC imposes a condition of approval to ensure compliance.
E. A method for continuing road maintenance acceptable to the County;
FINDING: The private roads will be maintained by the Administrator of the EMA pursuant
to the CC&Rs of the HOA. The BOCC finds this criterion will be met.
F. Private road systems shall include provisions for bicycle and
pedestrian traffic. In cluster and planned developments limited to ten
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dwelling units, the bicycle and pedestrian traffic can be
accommodated within the 20 foot wide road. In other developments,
shoulder bikeways shall be a minimum of four feet wide, paved and
striped, with no on -street parking allowed within the bikeway, and
when private roads are developed to a width of less than 28 feet, bike
paths constructed to County standards shall be required.
FINDING: The PUD will consist of ten residential lots. Therefore, the proposed 20 -foot -wide
paved private roads are sufficient to accommodate vehicles, bicycles and pedestrians. This
criterion will be met.
4. Section 17.48.190. Drainage.
A. Minimum Requirements.
1. Drainage facilities shall be designed and constructed to receive
and/or transport at least a design storm as defined in the
current Central Oregon Stormwater Manual created by Central
Oregon Intergovernmental Council and all surface drainage
water coming to and/or passing through the development or
roadway.
2. The system shall be designed for maximum allowable
development.
C. Noncurbed Sections.
1. Road culverts shall be concrete or metal with a minimum
design life of 50 years.
2. All cross culverts shall be 18 inches in diameter or larger.
3. Culverts shall be placed in natural drainage areas and shall
provide positive drainage.
D. Drainage Swales. The Design Engineer is responsible to design a
drainage swale adequate to control a design storm as defined in the
Central Oregon Stormwater Manual created by Central Oregon
Intergovernmental Council.
E. Drainage Plans. A complete set of drainage plans including hydraulic
and hydrologic calculations shall be incorporated in all road
improvement plans.
FINDING: The BOCC imposes a condition of approval to ensure compliance.
F. Drill Holes. Drill holes are prohibited.
G. Injection wells (drywells) are prohibited in the public right-of-way.
FINDING: No drill holes or injection wells are proposed.
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5. Section 17.48.210 Access.
A. Permit Required. Access onto public right of way or change in type of
access shall require a permit. Permits are applied for at offices of the
Community Development Department.
FINDING: Any necessary access permits will be reviewed by Planning staff and the Road
Department. The BOCC imposes a condition of approval to ensure compliance.
IV. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the BOCC hereby
APPROVES the Applicant's application for conditional use approval, site plan review and
landscape management review for a recreation -oriented facility, and APPROVES the
Applicant's application for a PUD, conditional use permit, surface mining impact area review
and tentative plan review as conditioned below. At a time in the future of no less than six
months, the applicant or owner may apply for a modification of any condition imposed
herein.
V. CONDITIONS OF APPROVAL FOR PUD:
A. Approval is based upon the submitted plan and application materials. Any substantial
change to the approved plan will require a new application.
B. Prior to Final Plat Approval, the applicant shall secure all property line adjustment
approvals necessary to achieve the configuration of lots depicted in Exhibit A.
C. All structures, buildings or similar permanent fixtures on PUD Lots 8-10 shall be set
back 100 feet from the ordinary high water mark associated with Tumalo Creek.
D. Prior to Final Plat Approval, the applicant shall sign and notarize a Waiver of
Remonstrance Easement for Surface Mining Site No. 308 (Cake Pit), prepared by the
County, and record the waiver in the County Clerk's Office. A copy of the recorded
waiver shall be submitted to the Planning Division.
E. Prior to Final Plat Approval, the applicant shall sign and notarize a Waiver of
Remonstrance Easement for Surface Mining Site 293, prepared by the County, and
record the waiver in the County Clerk's Office. A copy of the recorded waiver shall be
submitted to the Planning Division.
F. Prior to issuance of any building permits on PUD Lots 8-10, the property owner
shall secure Landscape Management approval.
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G. All PUD dwellings shall be sited pursuant to the findings under DCC 18.88.060
provided in this decision.
H. All PUD fencing shall comply with the fencing standards of the WA Combining Zone
pursuant to DCC 18.88.070.
I. At all times, the PUD shall comply with the Clear Vision Area standards of DCC
18.116.020.
1•
Prior to Final Plat Approval, the applicant shall install the landscaping detailed in
the Landscape Plan, attached as Exhibit C to this decision. Should the ROF approval
not be upheld on appeal, the applicant shall modify the Landscape Plan and PUD
decision.
K. AM required PUD landscaping, including landscaping installed pursuant to the
Landscape Plan, shall be watered where such care is required. Said landscaping shall
be continuously maintained, and kept alive and attractive.
L. The access road across the Hammock property (19214 Buck Drive; 17-11-13, tax lot
2700) shall be gated for emergency vehicles only. Prior to Final Plat Approval, said
gate shall be installed at the intersection of the access road and Buck Drive.
M. At all times, the PUD shall comply with the WHMP attached as Exhibit E to this
decision. Should the ROF approval not be upheld on appeal, the applicant shall
modify the WHMP and PUD decision.
N. At all times, the PUD shall comply with the WMP attached as Exhibit F to this
decision.
0. Prior to Final Plat Approval, the applicant shall secure on-site septic site evaluation
approval for each PUD lot.
P. All lighting in the PUD shall comply with the Deschutes County Outdoor Lighting
Ordinance. Additionally, all PUD lighting shall be shielded so that direct light does not
project off-site.
Q.
Prior to Final Plat Approval, the subdivision name shall be approved by the County
Surveyor.
R. All proposed private roads and public road improvements shall be designed and
constructed in accordance with Deschutes County Code (DCC) 17.48 and the
American Association of State Highway and Transportation Official standards.
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S. Except for extensions of existing streets, no street name shall be used which will
duplicate or be confused with the name of an existing street in a nearby city or in the
County. Street names and numbers shall conform to the established pattern in the
County and shall require approval from the County Property Address Coordinator.
T. Road construction plans, which will include the intersection improvements at the
intersections of the private roads with Johnson Road and Buck Drive, shall be
approved by County Road Department prior to commencement of construction
within the County right of way (DCC 17.48.060). The construction plan review fee of
$250 shall be received by the County Road Department prior to approval. A copy of
the final plans with all required signatures shall be provided to the County Road
Department upon approval by all agencies.
U. The applicant shall construct all new road improvements under the inspection and
approval of the County Road Department (DCC 17.48.200). The applicant must
confirm that all minimum sight distance requirements are met, pursuant to a design
speed of 55 mph for Johnson Road. The applicant may provide a letter to the
Department from a professional engineer certifying that the improvements were
constructed in accordance with the improvement plans approved by the County (DCC
17.40.040, ORS 92.097).
V. For any open space or common area provided as a part of the PUD, the owner shall
submit proof of nonrevocable deed restrictions recorded in the deed records. The
deed restrictions shall preclude all future rights to construct a dwelling on the lot,
parcel, or tract designated as open space or common area for as long as the lot,
parcel, or tract remains outside a UGB. The deed restrictions shall also preclude any
future partition or subdivision of the lot, parcel or tract designated as open space or
common area. Said proof of nonrevocable deed restrictions shall be provided to the
Planning Division prior to Final Plat Approval.
W. All PUD buildings shall comply with the yard setback and height limitation standards
of the RR -10 Zone with the exception of the solar setback.
X. All PUD buildings shall comply with the lot coverage standard of the RR -10 Zone.
Y. At all times, the Administrator of the EMA shall ensure compliance with the WHMP
and WMP for the PUD.
Z. All utility easements shall be shown on the final plat.
AA. Prior to Final Plat Approval, the applicant shall secure any necessary approval from
the Deschutes County Health Department for the community water system.
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BB. Prior to Final Plat Approval, the community water system shall be constructed and
operational, with lines extended to the lot line of each lot. All water lines shall be
installed prior to paving of the associated sections of the subdivision roads.
CC. Prior to Final Plat Approval, the applicant shall pay a parks fee of $3,500 ($350 x 10
dwelling units) to the Community Development Department.
DD. All roads shall be named in conformance with the provisions of the Deschutes County
uniform road naming system set forth in DCC Title 16.
EE. The northern terminus of the private road at PUD Lot 8 shall be constructed as a
hammerhead pursuant to Title 17 standards. This hammerhead shall be depicted on
the final plat.
FF. Prior to Final Plat Approval, the applicant shall submit to the Planning Division proof
of hammerhead approval length by the Bend Fire Department.
GG. The following minimum road standards shall apply for private roads:
1. The minimum paved roadway width shall be 20 feet with two -foot wide gravel
shoulders;
2. Minimum radius of curvature, 50 feet;
3. Maximum grade, 12 percent.
HH. At least one road name sign will be provided at each intersection for each road.
II. Drainage.
1. Surface drainage systems shall be designed to prevent adverse impacts to
public streets (DCC 18.124.060(F)).
2. Drainage facilities shall be designed and constructed to receive and/or
transport at least a design storm as defined in the current Central Oregon
Stormwater Manual created by Central Oregon Intergovernmental Council
and all surface drainage water coming to and/or passing through the
development or roadway.
2. The system shall be designed for maximum allowable development.
3. Road culverts shall be concrete or metal with a minimum design life of 50
years.
4. All cross culverts shall be 18 inches in diameter or larger.
5. Culverts shall be placed in natural drainage areas and shall provide positive
drainage.
6. The Design Engineer is responsible to design a drainage swale adequate to
control a design storm as defined in the Central Oregon Stormwater Manual
created by Central Oregon Intergovernmental Council.
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7. A complete set of drainage plans including hydraulic and hydrologic
calculations shall be incorporated in all road improvement plans.
J�. Access onto public right of way or change in type of access shall require a permit.
Permits are applied for at offices of the Community Development Department.
KK. All stockpiled material stored on-site under the authority of TU -14-8 shall be used
onsite or on adjoining properties owned by KCDG for landscaping and road
construction prior to the filing of the final plat for the subdivision or within the time
required by TU -14-8 (60 days after the landscaping and road work projects have been
completed) whichever is earlier.
LL. Prior to Final Plat Approval, the CC&Rs shall be amended as detailed below. A copy
of the amended CC&Rs shall be submitted to the Planning Division.
1. Section 4.2.6 shall be amended to require all PUD fencing to comply with the
fencing standards of the WA Combining Zone pursuant to DCC 18.88.070.
2. Section 4.2.9 of the CC&Rs shall be amended to require compliance with all
sections of the WMP.
3. All PUD lighting shall comply with the Deschutes Outdoor Lighting Ordinance.
4. Section 5.2 of CC&Rs shall be amended to state that domestic animals in the
Open Space shall be leashed.
MM. Prior to Final Plat Approval, the EMA shall be amended as detailed below. A copy
of the amended EMA shall be submitted to the Planning Division.
1. Lots entitled to use the ROF are restricted to those under current ownership
(requiring at least 50% or more interest) by KCDG, the Cadwell Family Trust,
Carlton & Lynda Cadwell, Eric & Brianna Cadwell, and their successors,
including families, invitees, agents and employees. Said lots are depicted on
Exhibit D attached to this decision.
2. Section 3.1 of the EMA shall be amended to require prior land use approval to
add a property to the EMA boundaries.
3. Any modification of the EMA, beyond the modifications detailed above, shall
require prior land use approval.
VI. CONDITIONS OF APPROVAL FOR ROF:
A. Prior to any passive recreation on the north reservoir, required parking for the
north reservoir shall be constructed.
B. Concurrently with the construction of the boathouses, or prior to any
recreation on the south reservoir, whichever comes first, required parking for the
south reservoir shall be constructed
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C. Lots entitled to use the ROF are restricted to those under current ownership
(requiring at least 50% or more interest) by KCDG, the Cadwell Family Trust, Carlton
& Lynda Cadwell, Eric & Brianna Cadwell, and their successors, including families,
invitees, agents and employees. Said lots are depicted on Exhibit D attached to this
decision.
D. Required parking space shall be available for the parking of operable passenger
automobiles of residents, customers, patrons and employees only and shall not be
used for the storage of vehicles or materials or for the parking of trucks used in
conducting the business or used in conducting the business or use.
E. Prior to initiating any recreational use of the reservoirs, the applicant shall install
the landscaping detailed in the Landscape Plan, attached as Exhibit C to this decision.
Should the PUD approval not be upheld on appeal, the applicant shall modify the
Landscape Plan and ROF decision.
F. All required ROF landscaping, including landscaping installed pursuant to the
Landscape Plan, shall be watered where such care is required. Said landscaping shall
be continuously maintained, and kept alive and attractive.
G. Until such time as the PUD roads are paved, the applicant shall maintain all graveled
roads within the ROF/PUD development to control dust on a continuous basis and
mitigate any adverse dust impacts on surrounding properties.
H. Prior to any recreation use on a reservoir, the service drive providing access from
the private road to the respective reservoir parking lot shall clearly marked by the use
of railing or fencing.
I. At all times, service drives shall have a minimum vision clearance area formed by the
intersection of the driveway centerline, the street right of way line and a straight line
joining said lines through points 30 feet from their intersection.
J.
The outer edge of both parking lots shall be contained by a curb.
K. At all times, the ROF shall comply with the WHMP attached as Exhibit E to this
decision.
L. All ROF lighting shall comply with the Deschutes County Outdoor Lighting Ordinance.
Additionally, all ROF lighting shall be shielded so that direct light does not project off-
site.
M. EiviA section 3.1 shall be modified to require applicable land use approval from
Deschutes County to add additional parcels for use of the ROF.
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N. Restrictions on motorized boating are as follows:
1. Motorized boating is only allowed on the south reservoir;
2. Prohibit motorized activity during the Tumalo deer winter season; December
1st through March 3151 of each year;
3. Only one motorized boat may be on the south reservoir at a time;
a. Other boats must be stored in a boathouse or in the harbor area.
4. Only boats used for water-skiing, wake boarding and wake surfing are allowed
on the south reservoir. No other motorized watercraft are allowed on the
south reservoir;
5. Only property owners within the EMA boundaries can operate their boats on
the south reservoir;
6. Operational hours limited to 8:OOam to 8:OOpm;
7. Adhere to all Deschutes County noise ordinance standards, found at DCC
Chapter 8.08;
8. Boat restrictions include:
a. Inboard engines only;
b. Self-contained engines with internal oil lubrication systems;
c. Stock mufflers or quieter;
d. Direct drive or V -drive transmission;
e. No two-stroke motors (prevents oil contamination);
9. No alcohol to be allowed on boats or used by skiers; and
10. All motor boat operators must carry the Oregon mandatory boater education
card.
SYSTEM DEVELOPMENT CHARGES
Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of
$3,937 per p.m. peak hour trip. County staff has determined a local trip rate of 0.81 p.m.
peak hour trips per single-family dwelling unit; therefore the applicable SDC is $3,189 ($3,937
X 0.81). The SDC is due prior to issuance of certificate of occupancy; if a certificate of
occupancy is not applicable, then the SDC is due within 60 days of the land use decision
becoming final.
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Dated this day of August, 2018
BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
Anthony DeBone, Chair
Philip G. Henderson, Vice Chair
Tammy Baney, Commissioner
THIS DECISION BECOMES FINAL WHEN SIGNED. PARTIES MAY APPEAL THIS DECISION TO
THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS
DECISION IS FINAL.
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Exhibit A
Site plan/Tentative plan
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Exhibit B
BOCC Order
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Exhibit C
Landscape Plan
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Exhibit D
EMA Boundary Map w/Ownership
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Exhibit E
WHMP
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Exhibit F
WMP
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