2018-448-Minutes for Meeting August 29,2018 Recorded 11/1/2018BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541) 388-6570
Recorded in Deschutes County
Nancy Blankenship, County Clerk
Commissioners' Journal
CJ2018-448
11/01/2018 2:10:38 PM
121111141i 1 1111 11111111 1111
Ji ES
BUSINESS MEETING MINUTES
9:00AM
WEDNESDAY, August 29, 2018 BARNES & SAWYER ROOMS
Present were Commissioners Tammy Baney and Phil Henderson. Commissioner DeBone was present at
9:05 a.m. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County
Administrator; David Doyle, County Counsel; and Sharon Keith, Board Executive Assistant. No identified
representatives of the media were in attendance.
CALL TO ORDER: Vice Chair Henderson called the meeting to order at 9:02 a.m.
PLEDGE OF ALLEGIANCE
CITIZEN INPUT: None was offered.
CONSENT AGENDA: Before the Board was Consideration of Approval of the
Consent Agenda.
BANEY: Move approval.
HENDERSON: Second.
VOTE: BAN EY: Yes.
HENDERSON: Vice Chair votes yes. Motion Carried
DEBONE: Absent, excused.
BOCC BUSINESS MEETING
AUGUST 29, 2018 PAGE 1 OF 5
Consent Agenda Items:
1. Consideration of Chair Signature of Document No. 2018-600, Peterson
Machinery Purchase Agreement
2. Consideration of Board Signature of Letters Appointing Mike Gocke and Bill
Hepburn to the Sunriver Service District Managing Board
3. Consideration of Board Signature of Letters Thanking Mark Johnson and Bob
Nelson for Service on the Sunriver Service District Managing Board
4. Consideration of Board Signature of Letter Appointing Bill Filsinger to the
Pinewood County Estates Special Road District Board
5. Consideration of Board Signature of Letter Thanking Bill Worden for Service
on the Pinewood Country Estates Special Road District
6. Approval of Minutes of the July 11, 2018 Business Meeting
ACTION ITEMS
7. Consideration of Board Signature of Document No. 2018-603, Decision:
Denial of Briteside Oregon, LLC Application, 23450 Walker Road
Anthony Raguine, Community Development Department presented a draft
decision based on the Board's direction.
Commissioner Baney felt that the draft did not capture the entirety of the
Board's deliberations and suggested a new draft that is more complete. The
Board had concerns about access issues and the idea that had this been
approved that a condition would have required coordinating access with the
Senior Transportation Planner. Staff will prepare a new draft and present it
to the Board for consideration.
BOCC BUSINESS MEETING
AUGUST 29, 2018 PAGE 2 OF 5
8. Consideration of Board Signature of Document No. 2018-616, Final
Decision for Marijuana Production and Processing at 21330 Young
Avenue
Kyle Collins, Community Development Department presented the final
decision based on the Board's direction.
BANEY: Move approval
HENDERSON: Second
VOTE: BANEY: Yes
HENDERSON: Yes
DEBONE: Chair votes yes. Motion Carried
9. FIRST READING: Ordinance No. 2018-011, A Plan Amendment & Zone
Change for DSL Property
Jacob Ripper, Community Development Department presented this item.
BAN EY: Move approval of first 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.
BOCC BUSINESS MEETING
AUGUST 29, 2018 PAGE 3 OF 5
10.PUBLIC HEARING: Caldera Springs Expansion and LUBA Remand, 17800
Vandevert Road, Bend
Anthony Raguine, Community Development Department outlined the
hearing procedures. Upon no conflicts or challenges, Commissioner DeBone
opened the public hearing. Mr. Raguine reviewed the staff report.
Steve Hultberg, attorney for applicant provided testimony.
Tom O'Shea, director of Sunriver Resort provided testimony.
Matt Kittleson provided testimony on the findings of the traffic study.
Ellen Grover, representing Sunriver Owners Association provided testimony
and concerns of water and sewer capacity and wildland fire hazard risks.
Bonnie Marter lives in the Sunriver Business District and provided testimony
and concern for traffic and access points.
Paul Dewey of Central Oregon LandWatch presented testimony and the
importance of wildlife access for migration.
Steve Hultberg supports the record kept open and suggested a 14 -day
written record period, 7 days rebuttal, and then 7 days for final evidence. Mr.
Hultberg responded to the concerns relayed during the testimony.
Mr. Raguine explained the deadlines for the record period. Commissioner
Baney asked for Senior Transportation Planners staff summary from the
Kittleson Report once it is received. Commissioner DeBone requested
clarification on the .2 EDU.
Commissioner DeBone closed the open portion of the hearing.
OTHER ITEMS: None were offered.
BOCC BUSINESS MEETING
AUGUST 29, 2018 PAGE 4 OF 5
ADJOURN
Being no further items to come before the Board, the meeting was adjourned at 11:02 a.m.
DATED this
Day of
Commissioners.
BOCC BUSINESS MEETING
2018 for the Deschutes County Board of
ANTHONY DEBONE, CHAIR
PH
LIP G.
NDERSON, VICE CHAIR
TAMMY BANEY, C MISSIONER
AUGUST 29, 2018 PAGE 5 OF 5
TE
o f14, ;,{ 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 29, 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 Chair Signature of Document No. 2018-600, Peterson Machinery
Purchase Agreement
Board of Commissioners Business Meeting Agenda
of 3
Wednesday, August 29, 2018 Page 1
2. Consideration of Board Signature of Letters Appointing Mike Gocke and Bill
Hepburn to the Sunriver Service District Managing Board
3. Consideration of Board Signature of Letters Thanking Mark Johnson and Bob
Nelson for Service on the Sunriver Service District Managing Board
4. Consideration of Board Signature of Letter Appointing Bill Filsinger to the Pinewood
Country Estates Special Road District Board
5. Consideration of Board Signature of Letter Thanking Bill Worden for Service on the
Pinewood Country Estates Special Road District
6. Approval of Minutes of the July 11, 2018 Business Meeting
ACTION ITEMS
7. Consideration of Board Signature of Document No. 2018-603, Decision: Denial of
Briteside Oregon, LLC Application, 23450 Walker Road - Anthony Raguine, Senior
Planner
8. Consideration of Board Signature of Document No. 2018-616, Final Decision for
Marijuana Production and Processing at 21330 Young Avenue - Kyle Collins, Assistant
Planner
9. FIRST READING: Ordinance No. 2018-011, a Plan Amendment & Zone Change for
DSL Property -Jacob Ripper, Senior Planner
10. PUBLIC HEARING: Caldera Springs Expansion and LUBA Remand, 17800 Vandevert
Road, Bend - 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.
Board of Commissioners Business Meeting Agenda
of 3
Wednesday, August 29, 2018 Page 2
ADJOURN
Deschutes County encourages persons with disabilities to participate in all programs and activities. To
request this information in an alternate format please call (541) 617-4747.
FUTURE MEETINGS:
Additional meeting dates available at www.deschutes.org/meetingcalendar
Meeting dates and times are subject to change. If you have question, please call (541) 388-6572.
Board of Commissioners Business Meeting Agenda
of 3
Wednesday, August 29, 2018 Page 3
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Business Meeting of August 29, 2018
DATE: August 23, 2018
FROM: Anthony Raguine, Community Development, 541-617-4739
TITLE OF AGENDA ITEM:
Consideration of Board Signature of Document No. 2018-603, Decision: Denial of Briteside
Oregon, LLC Application, 23450 Walker Road
RECOMMENDATION & ACTION REQUESTED:
On July 11, 2018, the Board of County Commissioners ("BOCC") conducted a public
hearing on Briteside's application to establish a marijuana production facility. On August
15th and 20th, the BOCC deliberated the merits of the case and voted 2-1 to deny the
application for failure to comply with the noise requirements of DCC 18.116.330(B)(11).
ATTENDANCE: Anthony Raguine, Senior Planner
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
DECISION OF THE BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
FILE NUMBERS: 247 -17 -000833 -AD, 247-18-000424-A
APPLICANT/OWNER: Briteside Oregon LLC
APPLICANT'S ATTORNEY: David J. Petersen, Tonkon Torp LLP
APPELLANT: Jeffrey and Alissa Paulson
APPELLANT'S ATTORNEY: Laurie E. Craghead
PROPOSAL: An appeal of an approved Administrative Determination to
establish marijuana production in the Exclusive Farm Use (EFU)
Zone.
STAFF REVIEWER: Anthony Raguine, Senior Planner
ADMINISTRATIVE
DECISION ISSUED: May 9, 2018
APPEAL FILED: May 18, 2018
HEARING DATE: July 11, 2018
RECORD CLOSED: August 1, 2018
I. SUMMARY OF DECISION:
In this decision, the Board of County Commissioners ("Board") considers the appellant's appeal of
the May 9, 2018 administrative Findings & Decision (file no. 247 -17 -000833 -AD; "Administrative
Decision"). The Board exercised its discretion to hear the appeal de novo.
117 NW Lafayette Avenue, Bend, Oregon 97703 P.O. Box 6005, Bend, OR 97708-6005
til` (541) 388-6575 ( ) cdd@deschutes.org ) www.deschutes.org/cd
The Board received a Memorandum on the appeal from Senior Planner Anthony Raguine, dated July
11, 2018 ("Staff Memorandum") that identified and summarized the appellant's objections, the
applicant's materials, and the Administrative Decision findings in regard to the issues raised in the
appellant's Notice of Appeal submittal. The Board's Decision in this appeal will refer to and
incorporate the Administrative Decision and the summary of issues in the Staff Memorandum.
The Board conducted a public hearing on July 11, 2018, and deliberated on the application on August
15 and 20, 2018. The Board voted 2-1 to overturn the Administrative Determination approving the
land use permit to establish a marijuana production facility on the subject property. The Board
found that the applicant failed to demonstrate that the noise produced by the proposed HVAC units
would meet the requirements of Deschutes County Code ("DCC") 18.116.330(6)(11).
II. APPLICABLE STANDARDS AND CRITERIA:
Title 18 of the Deschutes County Code (DCC), County Zoning
Chapter 18.04, Title, Purpose and Definitions
Chapter 18.16, Exclusive Farm Use Zone - EFU
Chapter 18.116, Supplementary Provisions
Title 22, Deschutes County Development Procedures Ordinance
III. BASIC FINDINGS:
The Board adopts and incorporates by reference the code interpretations, findings of fact, and
conclusions of law set forth in the May 9, 2018 Administrative Decision in Section 11 (Basic Findings),
subsections A (Location), B (Zoning), C (Lot of Record), D (Proposal), E (Site Description), F (Public
Agency Comments), and G (Public Comments), with the addition of the following:
H. REVIEW PERIOD: The application was submitted on October 11, 2017. The application
was deemed incomplete and a letter summarizing the additional information needed
to review the applications was mailed on November 9, 2017. The applicant submitted
additional information in response to the incomplete letter on January 26, 2018, and
the application was deemed complete on that day. The 150th day on which the County
must take final action on this application would have been June 25, 2018. However,
on June 11, 2018, the applicant requested to toll the clock to August 31, 2018.
Therefore, the 150th day on which the County must take final action on this application
is September 14, 2018.
I. PROCEDURAL HISTORY: The Administrative Decision was issued on May 9, 2018. An
appeal was timely filed by the appellant during the 12 -day appeal period on May 18,
2018. The Board used their discretion to "call up" the appellant's appeal to be heard
de novo pursuant to Board's Order 2018-036, dated May 16, 2018.
A public hearing was held on July 11, 2018. The appellants, Jeffrey and Alissa Paulson,
were represented by Laurie E. Craghead, Attorney at Law. The applicant, Briteside
Board of County Commissioners Decision, Document No. 2018-603
File Nos. 247 -17 -000833 -AD, 247-18-000424-A Page 2 of 4
Oregon LLC, was represented by David J. Petersen, Attorney at Law. The Board heard
testimony and established an open record period of 21 days. The record closed on
August 1, 2018.
The Board conducted deliberations at two of their regular Business Meetings on
August 15, 2018 and August 20, 2018. The Board found the proposal did not comply
with the applicable review criteria detailed below, and voted 2-1 to overturn the
Administrative Decision approving the application.
IV. FINDINGS:
The Board discussed the findings related to the denial of this application as it relates to DCC Section
18.116.330(11) below. Additional DCC Sections are not discussed in this decision, as the Board
ultimately determined the applicant did not meet the requirements of DCC 18.116.330(11), and
therefore, the application must be denied. However, the Board notes that even if the applicant had
submitted sufficient information as required by DCC 18.116.330(11) to thereby support an approval,
numerous other code sections would required substantial conditions of approval that the Board
discussed at length during deliberations.
11. Noise. Noise produced by marijuana production and marijuana processing shall
comply with the following:
a. Sustained noise from mechanical equipment used for heating, ventilation,
air condition, odor control, fans and similar functions shall not exceed 30
dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the
following day.
b. Sustained noise from marijuana production is exempt from protections of
DCC 9.12 and ORS 30.395, Right to Farm. Intermittent noise for accepted
farming practices is permitted.
The applicant submitted a revised engineer's letter dated April 20, 2018, prepared by a mechanical
engineer registered in the state of Oregon to address both odor and noise for the existing and
proposed buildings. The new building was proposed with a total of 44 wall -mounted HVAC units
producing a noise level of 73 dB at each unit. The existing building will include seven noise -
generating units. The mechanical engineer noted in the report that the new building will need a six
to seven foot high concrete sound wall on the south and west sides to ensure the sounds are below
30 dBA. The mechanical engineer provided a statement that he calculated the expected sound
pressure levels at the four property lines and included the projected dBA levels, but did not provide
the calculations and data used to reach those conclusions. Additionally, a concern was expressed
that the mechanical engineer did not provide the specific calculations demonstrating how the
concrete wall would reduce dBA levels, particularly considering the potential for sound to
reverberate between the wall and the proposed new building.
One Board member found the applicant could meet the criteria with an ongoing condition of
approval. However, two Board members disagreed and determined that the mechanical engineer's
report lacked the required site-specific information to sufficiently demonstrate that the noise
Board of County Commissioners Decision, Document No. 2018-603
File Nos. 247 -17 -000833 -AD, 247-18-000424-A Page 3 of 4
produced by the mechanical equipment would not exceed the requirements of DCC 18.116.330(11).
Therefore, the majority of the Board finds that the applicant has not met its burden to demonstrate,
in a site-specific manner, that sustained noise will not exceed 30 dBA measured at any property line
between 10:00 p.m. and 7:00 a.m.
V. DECISION:
Based on the findings of fact and conclusions of law set out above, the Board hereby DENIES the
applicant's proposed marijuana production application and reverses on appeal the May 9, 2018
Administrative Determination (file no. 247 -17 -000833 -AD), which approved the application.
Dated this day of August, 2018 Mailed 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 MAILED. PARTIES MAY APPEAL THIS DECISION TO THE
LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS DECISION IS
FINAL.
Board of County Commissioners Decision, Document No. 2018-603
File Nos. 247 -17 -000833 -AD, 247-18-000424-A Page 4 of 4
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 29, 2018
DATE: August 22, 2018
FROM: Jacob Ripper, Community Development, 541-385-1759
TITLE OF AGENDA ITEM:
FIRST READING: Ordinance No. 2018-011, a Plan Amendment & Zone Change for DSL
Property
BACKGROUND AND POLICY IMPLICATIONS:
The Board of County Commissioners (Board) conducted a public hearing on July 30, 2018 to
consider a Plan Amendment and Zone Change for a Department of State Lands (DSL) property
east of Bend. The Board approved the proposal and adopted the Hearings Officer's findings in
support of that decision. This is the first of two required ordinance readings.
FISCAL IMPLICATIONS: None.
ATTENDANCE: Jacob Ripper, Senior Planner
r"
STAFF MEMORANDUM
Date: August 23, 2018
To: Board of County Commissioners
From: Jacob Ripper, Senior Planner
Re: Consideration of First Reading of Ordinance No. 2018-011 - a Plan Amendment and
Zone Change for an Oregon Department of State Lands property.
The Board of County Commissioners (Board) conducted a public hearing on July 30, 2018 to consider
a Plan Amendment and Zone Change for a Department of State Lands (DSL) property. The Board
closed the public hearing and the record on July 30, 2018 and deliberated on the matter directly
following the hearing. The Board approved the proposal and adopted the Hearings Officer's findings
in support of that decision.
The applicant requested approval of a Comprehensive Plan Map Amendment to change a portion
of the subject property from an Agricultural designation to a Rural Residential designation. The
applicant also requested approval of a corresponding Zoning Map Amendment (Zone Change) to
change the same portion of the subject property from Exclusive Farm Use (EFU) to Multiple Use
Agricultural (MUA-10). The application file numbers are 247 -17 -000726 -PA / 727-ZC. This is the first
of two required ordinance readings.
Staff provided a draft ordinance for the Board's consideration prior to the public hearing. The
ordinance has been updated with some missing information but is largely unchanged from the draft
form.
Attachments:
1. Ordinance 2018-011 with exhibits
117 NW Lafayette Avenue, Bend, Oregon 97703 P.O. Box 6005, Bend, OR 97708-6005
(541) 388-6575 @cdd@deschutes.org www.deschutes.org/cd
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Deschutes County Code
Title 23, the Deschutes County Comprehensive Plan,
to Change the Comprehensive Plan Map Designation
for Certain Property From Agriculture to Rural
Residential Exception Area, and Amending
Deschutes County Code Title 18, the Deschutes
County Zoning Map, to Change the Zone
Designation for Certain Property From Exclusive
Farm Use to Multiple Use Agricultural, and
Declaring and Emergency.
ORDINANCE NO. 2018-011
WHEREAS, the Oregon Department of State Lands applied for changes to both the Deschutes County
Comprehensive Plan Map and the Deschutes County Zoning Map, to change a portion of the subject property
from an Agricultural (AG) designation to a Rural Residential Exception Area (RREA) designation and a
corresponding zone change from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10); and
WHEREAS, after notice was given in accordance with applicable law, a public hearing was held on April
24, 2018, before the Deschutes County Hearings Officer and, on May 9, 2018, the Hearings Officer recommended
approval of both the Comprehensive Plan Map change and Zoning Map change; and
WHEREAS, after notice was given in accordance with applicable law, a de novo public hearing was held
on July 30, 2018, before the Board of County Commissioners ("Board"); and
WHEREAS, the Board, after review conducted in accordance with applicable law, both approved the plan
amendment to change the Comprehensive Plan Map designation from Agriculture to Rural Residential Exception
Area, and approved the Zoning Map amendment to change from Exclusive Farm Use (EFU) to Multiple Use
Agricultural (MUA-10); now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. DCC Section 23.01.010, Introduction, is amended to read as described
in Exhibit "D" attached and incorporated by reference herein, with new language underlined.
Section 2. AMENDMENT. Deschutes County Comprehensive Plan Section 5.12, Legislative
History, is amended to read as described in Exhibit "E" attached and incorporated by reference herein, with new
language underlined.
PAGE 1 OF 2 - ORDINANCE NO. 2018-011
Section 3. AMENDMENT. DCC Title 23, Deschutes County Comprehensive Plan Map, is
amended to change the plan designation for certain property described in Exhibit "A" and depicted on the map set
forth as Exhibit "B", with both exhibits attached and incorporated by reference herein, from Agriculture to Rural
Residential Exception Area.
Section 4. AMENDMENT. DCC Title 18, Zoning Map, is amended to change the zone designation
from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10) for certain property described in Exhibit "A"
and depicted on the map set forth as Exhibit "C."
Section 5. FINDINGS. The Board adopts as its findings in support of this Ordinance, the Decision
of the Hearings Officer as set forth in Exhibit "F", and incorporated by reference herein.
Dated this of , 2018 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ANTHONY DEBONE, Chair
PHILIP G. HENDERSON, Vice Chair
ATTEST:
Recording Secretary TAMMY BANEY, Commissioner
Date of 1St Reading: day of , 2018.
Date of 2' Reading: day of , 2018.
Record of Adoption Vote:
Commissioner Yes No Abstained Excused
Anthony DeBone
Philip G. Henderson
Tammy Baney
Effective date: day of , 2018.
PAGE 2 OF 2 - ORDINANCE NO. 2018-011
Exhibit "A"
All that portion of Section 11, Township 18 South, Range 12 East of the Willamette
Meridian, Deschutes County, Oregon Tying east of the easterly extent of the following
easement: Commencing at the North Quarter corner of Section 11; thence South
89°27'02" East along the northern line of said Section 11, a distance of 1490.00 feet,
more or less, to the easterly line of an existing PG&E Gas Transmission Company
Northwest natural gas pipeline easement; thence South 18°22'12" West along the
easterly line of said easement, 5558.08 feet, more or less, to the South line of said
Section 11, also excluding that portion of Section 11 North of the southerly right of
way of Stevens Road.
PAGE 1 OF 1- EXHIBIT A TO ORDINANCE NO. 2018-011
1-J+- 1 E
DESERT:SKIES PL-.
o� Z,CALE B:PL.
1110111
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Taxlot
18-12-00-00-01800
Taxlot
18-12-00-00-01800
Plan Amendment from
Agriculture (AG)
to
Rural Residential Exception Area (RREA)
Taxlot
18-12-00-00-01700
Deschutes County
Road Dept.
Legend
COProposed Plan Amendment Boundary
Bend City Limit
Urban Growth Boundary
Comprehensive Plan Designation
AG -Agriculture
RREA - Rural Residential Exception Area
Knott
Landfill'
PROPOSED
COMPREHENSIVE PLAN MAP
Exhibit "B"
to Ordinance 2018-011
V V
0 250 500
1,000
1,500
July 24, 2018
Feet
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
Anthony DeBone, Chair
Philip G. Henderson, Vice Chair
Tammy Baney, Commissioner
ATTEST: Recording Secretary
Dated this day of 2018
Effective Date: 2018
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Zone Change from
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Taxlot
18-12-00-00-01700
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Deschutes County
Road Dept.
Knott
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EFUTRB
Legend
Proposed Zone Change Boundary
RBI VB.
9 ® Bend City Limit
Urban Growth Boundary
County Zoning
EFUTRB - Tumalo/Redmond/Bend Subzone
MUA1 0 - Multiple Use Agricultural
PROPOSED
ZONING MAP
Exhibit "C"
to Ordinance 2018-011
0 250 500
1,000
1,500
July 24, 2018
Feet
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
Anthony DeBone, Chair
Philip G. Henderson, Vice Chair
Tammy Baney, Commissioner
ATTEST: Recording Secretary
Dated this day of 2018
Effective Date: , 2018
Chapter 23.01 COMPREHENSIVE PLAN
Chapter 23.01 COMPREHENSIVE PLAN
23.01.010. Introduction.
A. The Deschutes County Comprehensive
and found on the Deschutes County Communit
by reference herein.
B. The Deschutes County Comprehensive
2011-027, are incorporated by reference herein.
C. The Deschutes County Comprehensive
2012-005, are incorporated by reference herein.
D. The Deschutes County Comprehensive
2012-012, are incorporated by reference herein.
E. The Deschutes County Comprehensive
2012-016, are incorporated by reference herein.
F. The Deschutes County Comprehensive
2013-002, are incorporated by reference herein.
G. The Deschutes County Comprehensive
2013-009, are incorporated by reference herein.
H. The Deschutes County Comprehensive
2013-012, are incorporated by reference herein.
I. The Deschutes County Comprehensive
2013-007, are incorporated by reference herein
J. The Deschutes County Comprehensive
2014-005, are incorporated by reference herein.
K. The Deschutes County Comprehensive
2014-006, are incorporated by reference herein.
L. The Deschutes County Comprehensive
2014-012, are incorporated by reference herein.
M. The Deschutes County Comprehensive
2014-021, are incorporated by reference herein.
N. The Deschutes County Comprehensive
2014-027, are incorporated by reference herein.
O. The Deschutes County Comprehensive
2015-021, are incorporated by reference herein.
P. The Deschutes County Comprehensive
2015-029, are incorporated by reference herein.
Q. The Deschutes County Comprehensive
2015-018, are incorporated by reference herein.
R. The Deschutes County Comprehensive
2015-010, are incorporated by reference herein.
S. The Deschutes County Comprehensive
2016-001, are incorporated by reference herein.
T. The Deschutes County Comprehensive
2016-022, are incorporated by reference herein.
U. The Deschutes County Comprehensive
2016-005, are incorporated by reference herein.
Plan, adopted by the Board in Ordinance 2011-003
y Development Department website, is incorporated
Plan amendments, adopted by the Board in Ordinance
Plan amendments, adopted by the Board in Ordinance
Plan amendments, adopted by the Board in Ordinance
Plan amendments, adopted by the Board in Ordinance
Plan amendments, adopted by the Board in Ordinance
Plan amendments, adopted by the Board in Ordinance
Plan amendments, adopted by the Board in Ordinance
Plan amendments, adopted by the Board in Ordinance
Plan amendments, adopted by the Board in Ordinance
Plan amendments, adopted by the Board in Ordinance
Plan amendments, adopted by the Board in Ordinance
Plan amendments, adopted by the Board in Ordinance
Plan amendments, adopted by the Board in Ordinance
Plan amendments, adopted by the Board in Ordinance
Plan amendments, adopted by the Board in Ordinance
Plan amendments, adopted by the Board in Ordinance
Plan amendments, adopted by the Board in Ordinance
Plan amendments, adopted by the Board in Ordinance
Plan amendments, adopted by the Board in Ordinance
Plan amendments, adopted by the Board in Ordinance
PAGE 1 OF 2 — EXHIBIT D TO ORDINANCE NO. 2018-011
V. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-027, are incorporated by reference herein.
W. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-029, are incorporated by reference herein.
X. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2017-007, are incorporated by reference herein.
Y. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-002, are incorporated by reference herein.
Z. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-006, are incorporated by reference herein.
AA. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-011, are incorporated by reference herein.
Ord. 2018-011 §1, 2018; Ord. 2018-006 §1, 2018_1; Ord. 2018-002 §1, 2018; Ord. 2017-007 §1, 2017;
Ord. 2016-029 §1, 2016; Ord. 2016-027 §1, 2016; Ord. 2016-005 §1, 2016; Ord. 2016-022 §1, 2016;
Ord. 2016-001 §1, 2016; Ord. 2015-010 §1, 2015; Ord. 2015-018 § 1, 2015; Ord. 2015-029 § 1, 2015;
Ord. 2015-021 § 1, 2015; Ord. 2014-027 § 1, 2014; Ord. 2014-021 §1, 2014; Ord. 2014-12 §1, 2014;
Ord. 2014-006 §2, 2014; Ord. 2014-005 §2, 2014; Ord. 2013-012 §2, 2013; Ord. 2013-009 §2, 2013;
Ord. 2013-007 §1, 2013; Ord. 2013-002 §1, 2013; Ord. 2013-001 §1, 2013; Ord. 2012-016 §1, 2012;
Ord. 2012-013 §1, 2012; Ord. 2012-005 §1, 2012; Ord. 2011-027 §1 through 12, 2011; Ord. 2011-
017 repealed; Ord.2011-003 §3, 2011)
Click here to be directed to the Comprehensive Plan (http://www.deschutes.org/compplan)
PAGE 2 OF 2 - EXHIBIT D TO ORDINANCE NO. 2018-011
Secti,ow 5.12 Legistatf-ve I-tistoru
Background
This section contains the legislative history of this Comprehensive Plan.
Table 5.1 1.1 Comprehensive Plan Ordinance History
Ordinance
Date Adopted/
Effective
Chapter/Section
Amendment
201 1-003
8-10-1 I/ I 1-9-1 I
All, except
Transportation, Tumalo
and Terrebonne
Community Plans,
Deschutes Junction,
Destination Resorts and
ordinances adopted in
Comprehensive Plan update
2011
2.5, 2.6, 3.4, 3.10, 3.5,
Housekeeping amendments to
201 1-027
10-31-1 1 / 1 1-9-1 I
4.6, 5.3, 5.8, 5. I I >
ensure a smooth transition to
23.40A, 23.40B,
23.40.065, 23.01.010
the updated Plan
23.60, 23.64 (repealed),
Updated Transportation
2012-005
8-20-12/11-19-12
3.7 (revised), Appendix C
(added)
System Plan
2012-012
8-20-12/8-20-12
4.1, 4.2
La Pine Urban Growth
Boundary
20 12-0 16
12-3-12/3-4-13
3.9
Housekeeping amendments to
Destination Resort Chapter
Central Oregon Regional
2013-002
1-7-13/1-7-13
4.2
Large -lot Employment Land
Need Analysis
Comprehensive Plan Map
Amendment, changing
2013-009
2-6-13/5-8-13
1.3
designation of certain
property from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan Map
2013-012
5-8-13/8-6-13
23.01.010
Amendment, including certain
property within City of Bend
Urban Growth Boundary
Newberry Country: A Plan
2013-007
5-29-13/8-27-13
3.10, 3.11
for Southern Deschutes
County
Page 1 of 4 - EXHIBIT E TO ORDINANCE NO. 2018-011
2013-016
10-21-13/10-21-13
23.01.010
Comprehensive Plan Map
Amendment, including certain
property within City of Sisters
Urban Growth Boundary
2014-005
2-26-14/2-26-14
23.01.010
Comprehensive Plan Map
Amendment, including certain
property within City of Bend
Urban Growth Boundary
2014-012
4-2-14/7-1-14
3.10, 3. I I
Housekeeping amendments to
Title 23.
2014-021
8-27-14/11-25-14
23.01.010,
5.10
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Sunriver Urban
Unincorporated Community
Forest to Sunriver Urban
Unincorporated Community
Utility
2014-021
8-27-14/11-25-14
23.01.010,
5.10
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Sunriver Urban
Unincorporated Community
Forest to Sunriver Urban
Unincorporated Community
Utility
2014-027
12-15-14/3-31-15
23.01.010,
5.10
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Rural Industrial
2015-021
1 1-9-15/2-22-16
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Surface Mining.
2015-029
11-23-15/11-30-15
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Tumalo
Residential 5 -Acre Minimum
to Tumalo Industrial
2015-018
12-9-15/3-27-16
23.01.010,
2.2, 4.3
Housekeeping Amendments
to Title 23.
Page 2 of 4 - EXHIBIT E TO ORDINANCE NO. 2018-01 I
2015-010
12-2-15/12-2-15
2.6
Comprehensive Plan Text and
Map Amendment recognizing
Greater Sage -Grouse Habitat
Inventories
2016-001
12-21-15/04-5-16
23.01.010;
5.10
Comprehensive Plan Map
Amendment, changing
designation of certain
property from, Agriculture to
Rural Industrial (exception
area)
2016-007
2-10-16/5-10-16
23.01.010;
5.10
Comprehensive Plan
Amendment to add an
exception to Statewide
Planning Goal 11 to allow
sewers in unincorporated
lands in Southern Deschutes
County
2016 -005
I 1-28-16/2-16-17
23.01.010,
2.2, 3.3
Comprehensive Plan
Amendment recognizing non -
resource lands process
allowed under State law to
change EFU zoning
2016-022
9-28-16/1 1-14-16
23.01.010,
1.3, 4.2
Comprehensive plan
Amendment, including certain
property within City of Bend
Urban Growth Boundary
2016-029
12-14-16/12/28/16
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from, Agriculture to
Rural Industrial
2017-007
10-30-17/10-30-17
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Rural Residential Exception
Area
2018-002
1-3-18; 1-25-18
23.01, 2.6
Comprehensive Plan
Amendment permitting
churches in the Wildlife Area
Combining Zone
Page 3 of 4 - EXHIBIT E TO ORDINANCE NO. 2018-011
Page 4 of 4 - EXHIBIT E TO ORDINANCE NO. 2018-01 1
Housekeeping Amendments
correcting tax lot numbers in
Non -Significant Mining Mineral
2018-006
8-22-18/11-20-18
23.01.010, 5.8, 5.9
and Aggregate Inventory;
modifying Goal 5 Inventory of
Cultural and Historic
Resources
Comprehensive Plan Map
Amendment, changing
2018-011
TBD/TBD
23.01.010
designation of certain
property from Agriculture to
Rural Residential Exception
Area
Page 4 of 4 - EXHIBIT E TO ORDINANCE NO. 2018-01 1
FILE NUMBERS:
HEARING:
APPLICANT/OWN ER:
AGENT FOR APPLICANT:
PROPOSAL:
STAFF REVIEWER:
HEARINGS OFFICER:
Mailing Date:
Wednesday, May 09, 2018
HEARINGS OFFICER REPORT
247 -17 -000726 -PA, 727-ZC
April 24, 2018, 6:00 p.m.
Barnes & Sawyer Rooms
Deschutes Services Center
1300 NW Wall Street
Bend, OR 97708
Oregon Department of State Lands (DSL)
John M. Swanson, Real Property Planner
775 Summer St. NE, Ste. 100
Salem, OR 97301
Angelo Planning Group
Matt Hastie, Project Manager
921 SW Washington St., Ste. 468
Portland, OR 97205
The applicant requests approval of a Comprehensive Plan Map
Amendment to change a portion of the subject property from an
Agricultural (AG) designation to a Rural Residential Exception Area
(RREA) designation. The applicant also requests approval of a
corresponding Zoning Map Amendment to change a portion of the
subject property from Exclusive Farm Use (EFU) to Multiple Use
Agricultural (MUA-10).
Jacob Ripper, Senior Planner
Dan R. Olsen
SUMMARY OF DECISION: Approved
This decision adopts the staff report with minor edits and except as denoted 'Hearings Officer'.
I. APPLICABLE STANDARDS AND CRITERIA:
Deschutes County Code, Title 18, County Zoning Ordinance
Chapter 18.04, Title, Purpose, and Definitions
Chapter 18.16, Exclusive Farm Use Zones
EXHIBIT F TO ORDINANCE NO. 2018-011
Chapter 18.32, Multiple Use Agricultural Zone
Chapter 18.136, Amendments
Deschutes County Code, Title 22, Procedures Ordinance
Deschutes County Comprehensive Plan
Chapter 2, Resource Management
Chapter 3, Rural Growth Management
Appendix C, Transportation System Plan
Oregon Administrative Rules (OAR), Chapter 660
Division 6, Forest Lands
Division 12, Transportation Planning
Division 15, Statewide Planning Goals and Guidelines
Division 33, Agricultural Land
Oregon Revised Statues (ORS).
Chapter 215.211, Agricultural Land, Detailed Soils Assessment.
U. FINDINGS OF FACT:
A. LOCATION: The subject property has an assigned address of 21425 Stevens Road, Bend, and
includes an approximately 260 -acre area in the eastern portion of the property identified on
the County Assessor's Map No. 18-12-(11), as tax lot 1800. The property is described in the
application as both the Stevens Road Tract (SRT) and Section 11. The portion of the subject
property that these applications address lies directly east of the Urban Growth Boundary
(UGB) running diagonally through the subject property (see map below).
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011 Page 2 of 41
THUNDER RD
Shaded area is subject portion of the property.
Map and tax lot: 1812000001800
OBSIDIAN
COYOTE DF
Deschutes County CIS, Sources: Esti, USCS, NO,AA>
B. LOT OF RECORD: The subject tax lot 1800, together with the adjoining tax lot 1700, form a
single legal lot of record pursuant to the previous land use decisions CU -97-132, PA -11-7, and
ZC-11-2.
C. PROPOSAL: The applicant requests approval of a Comprehensive Plan Map Amendment to
change a portion of the subject property from an Agricultural (AG) designation to a Rural
Residential Exception Area (RREA) designation. The applicant also requests approval of a
corresponding Zoning Map Amendment to change a portion of the subject property from
Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10). The applicant asks that
Deschutes County change the zoning and the plan designation because the subject property
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011 Page 3 of 41
does not qualify as "agricultural land" under Oregon Revised Statutes (ORS) or Oregon
Administrative Rules (OAR) definitions. The applicant proposed that no exception to
Statewide Planning Goal 3, Agricultural Land is required because the subject property is not
agricultural land.
The area west of the UGB is not part of the subject application, as it has already been
approved for a similar Plan Amendment and Zone Change.
Submitted with the application is an Order 1 Soil Survey of the subject property, titled "Soil
Investigation for Stevens Road Tract" (hereafter referred to as "soil study"), and an
amendment to the soil study. The soil study was prepared by soil scientist Roger Borine,
CPSC, CPSS, PWS of Sage West, LLC. The applicant has also submitted a traffic analysis
prepared by Kittelson & Associates, titled "Transportation Planning Rule Analysis", and an
amendment to the traffic study. Additionally, the applicant has submitted an application
form, a burden of proof statement, a revised burden of proof statement, and other
supplemental materials, all of which are included in the record for the subject applications.
D. ZONING AND PLAN DESIGNATIONS: The subject property is within the land use
management jurisdiction of the City of Bend for the western portion and Deschutes County
for the eastern portion. The Deschutes County Comprehensive Plan map designates the
subject eastern portion of the property as Agriculture. The western portion has been
incorporated into the Urban Growth Boundary (UGB), where the City of Bend's
Comprehensive Plan applies. The subject eastern portion of the property is within the
Exclusive Farm Use Zone - Tumalo/Redmond/Bend subzone (EFU-TRB), while the western
portion is within the Urbanizable Area (UA) and Residential Standard Density (RS) Zones.
E. SITE DESCRIPTION: The SRT, or Section 111, is an undeveloped square mile (640 acres) of
scrub sagebrush, juniper, ponderosa pine, and lava rock. An underground natural gas
pipeline diagonally bisects the property from the northern property line to the southern
property line. The western portion of the SRT property, which is approximately the area west
of the natural gas pipeline, was previously rezoned from EFU-TRB to MUA-10 in 2013. The
western portion of the site was subsequently added to the Bend UGB in 2016. As a result,
the UGB abuts the entire western boundary of the subject eastern portion of the SRT.
Although the property is zoned EFU, there is no indication in the record of current or historic
farm uses or agricultural uses. The property is not in farm tax deferral as it is owned by the
Oregon Department of State Lands, and is thereby exempt from property taxes. The
property does not contain any irrigated areas nor does it have irrigation water rights. There
are also several trails on the property and a cluster of lava tube caves identified in the
applicant's Exhibit A attached to the application materials.
F. SURROUNDING LAND USES: Surrounding land uses generally consist of urban residential,
rural residential, agricultural, and civic/institutional uses. To the west of the SRT is the City of
1 The applicant refers to the subject property as both the SRT (Stevens Road Tract) and Section 11 in the application
materials.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011 Page 4 of 41
Bend, where properties across SE 27th Street are developed with single-family dwellings and
a manufactured home park. To the south of the SRT are properties developed with buildings
and facilities for the Humane Society of Central Oregon, the Deschutes County Road
Department, the Central Electric Cooperative, and the Knott Landfill. To the east and north
of the SRT are private properties mostly developed with dwellings and some are engaged in
agricultural or small-scale farm uses.
Zoning in the areas to the northwest, west, and southwest consist of City of Bend Zones
Residential Standard Density (RS), Residential Low Density (RL), Urbanizable Area (UA), and
Public Facility (PF). The remaining areas to the south, east, and north are zoned Exclusive
Farm Use (EFU) or Multiple Use Agricultural (MUA-10).
G. SOILS: According to Natural Resources Conservation Service (NRCS) maps of the area, the
subject eastern portion of the property contains four soil units. The mapped soil units are
listed below. The applicant submitted a soil study report (applicant's Exhibit B), which was
prepared by a certified soils scientist and soil classifier that determined the entire 640 -acre
SRT was predominantly comprised of soils that do not qualify as Agricultural Land'. The
purpose of this soil study was to inventory and assess the soils on the subject property and
to provide more detailed data on soil classifications and ratings than is contained in the NRCS
soils maps. The NRCS soil map units identified on the subject eastern portion of the property
are below.
27A, Clovkamp Loamy Sand: Clovkamp Loamy Sand soils consist of 85 percent Clovkamp
soils and similar inclusions and 15 percent contrasting inclusions. The contrasting inclusions
for the Clovkamp soils consist of Deskamp soils on side slopes. The major uses of this soil
are irrigated cropland and livestock grazing. The agricultural capability ratings of this soil are
3s when irrigated and 6s when not irrigated. Section 18.04.030 of the DCC considers this soil
type high-value farmland when irrigated. Approximately seven (7) percent of the subject
parcel is made up of this soil type.
36A, Deskamp loamy sand, 0 to 3 percent slopes: This soil complex is composed of 85 percent
Deskamp soil and similar inclusions, and 15 percent contrasting inclusions. The Deskamp
soils are somewhat excessively drained with a rapid over moderate permeability, and about
5 inches of available water capacity. Major uses of this soil type are irrigated cropland and
livestock grazing. The agricultural capability rating for 36A soils are 3S when irrigated, and 6S
when not irrigated. This soil is high-value when irrigated. Approximately two (2) percent of
the subject parcel is made up of this soil type.
38B, Deskamp-Gosney complex, 0 to 8 percent slopes: This soil is composed of 50 percent
Deskamp soil and similar inclusions, 35 percent Gosney soil and similar inclusions, and 15
percent contrasting inclusions. The Deskamp soils are somewhat excessively drained with
rapid permeability, and an available water capacity of about 3 inches. The Gosney soils are
somewhat excessively drained with rapid permeability, and an available water capacity of
2 As defined in OAR 660-033-0020, 660-033-0030
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011 Page 5 of 41
about 1 inch. The contrasting inclusions contain Clovkamp soils in swales, soils that are very
shallow to bedrock, and are on ridges with occasional rock outcrops. The major use of this
soil is for livestock grazing. The Deskamp soils have ratings of 6e when unirrigated, and 3e
when irrigated. The Gosney soils have ratings of 7e when unirrigated, and 7e when irrigated.
This soil type is not considered high-value soil. Approximately six (6) percent of the subject
parcel is made up of this soil type.
58C, Gosney-Rock Outcrop-Deskamp complex, 0 to 15 percent slopes: This soil type is
comprised of 50 percent Gosney soil and similar inclusions, 25 percent rock outcrop, 20
percent Deskamp soil and similar inclusions, and 5 percent contrasting inclusions. Gosney
soils are somewhat excessively drained with rapid permeability. The available water capacity
is about 1 inch. Deskamp soils are somewhat excessively drained with rapid permeability.
Available water capacity is about 3 inches. The major use for this soil type is livestock grazing.
The Gosney soils have ratings of 7e when unirrigated, and 7e when irrigated. The rock
outcrop has a rating of 8, with or without irrigation. The Deskamp soils have ratings of 6e
when unirrigated, and 4e when irrigated. Approximately 83 percent of the subject parcel is
made up of this soil type.
H. PUBLIC AND PRIVATE AGENCY COMMENTS: The Planning Division mailed notice of the
application and notice of the public hearing to several agencies and the following comments
were received:
Arnold Irrigation District
The District monitors construction or building activities near mapped water right areas. Tax Map
18-12-(11), as tax lot 1800, does not have a water right with Arnold Irrigation District. The District
has no conveyance system, assets or facilities with this tax lot.
Bend Fire Department
No fire department comments will be submitted regarding zone change only for 247 -17 -000726 -
PA & 727-ZC.
Bend Park & Recreation District
Bend Park and Recreation District (BPRD) has three comments:
1. BPRD's adopted Trails Master Plan designates the gas line easement of the TransCanada
Pipeline (the dividing line between the aforementioned property and the property of the same
address to the west) as a Planned Primary Trail.
2. Additionally, the BPRD adopted Trails Master Plan designates a Planned Connector Trail from
NE 27th St. through the property to the west of the aforementioned property to the
TransCanada Pipeline.
3. BPRD is interested in discussing the provision of parks and trails on the property to the west
that was recently brought into the Urban Growth Boundary.
Central Oregon Irrigation District
COID FACILITIES:
• COID has two facilities on subject's property
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011 Page 6 of 41
o The COC has a 100' right of way along with a road on the west side of the canal
with a 20' right of way
o The smaller delivery ditch has a 20' right of way
COID WATER RIGHTS: none
COID GUIDELINE STATEMENT none
Staff Comment: COID also included a map depicting the rights-of-way, which are located in
the far northwest portion of the SRT, and are not located within the area of the subject
applications. The COID map is included in the record.
City of Bend Growth Management Department
Thanks for the copy of the notice on the above -referenced application of the Department of State
Lands. We have no comments on their application for a plan map amendment and zoning map
amendment.
Please send on copies of the Staff Report and final decisions and any adopting ordinance of the
Board of County Commissioners. Our interest is in keeping track of changes in land use around
the current UGB before we prepare for the next UGB evaluation.
Deschutes County Road Department
I have reviewed the application materials for the above -referenced file numbers, proposing a
Comprehensive Plan Map Amendment and Zone Change for the Stevens Road Tract. I will reiterate
the comments submitted by Peter Russell, Senior Transportation Planner with Deschutes County
CDD.
Deschutes County Transportation Planner
I have reviewed the transmittal materials for 247-17-000726-PA/727-CU to amend the
Comprehensive Plan from Agriculture to Rural Residential and the zoning map from Exclusives
Farm Use (EFU) to Multiple Use Agriculture (MUA-10) on 242 acres at 21425 Stevens Road, aka 16-
12-15, Tax Lot 1300. The subject property, which belongs to Department of States Lands (DSL) is
often referred to as Section 11 and this land use application would change the land use
designations to the same as the western half of Section 11 which went through a similar process
in 2011.
The most recent edition of the Institute of Traffic Engineers (ITE) Trip Generation Handbook
indicates a single-family residence (Land Use 210) generates an average of approximately 10 daily
weekday trips including one trip in the p.m. peak hour. The 2011 traffic study was based on the
western 380 acres going from EFU to MUA-10. The then -existing EFU zone was expected to generate
100 daily trips and 10 p.m. peak hour trips. The current proposal is for 242 acres to also change
from EFU to MUA-10. As 242 acres is 63% of 380 acres (242/380 X 100), the base traffic under the
EFU zoning should be 63 daily trips (100 X 0.63) and 6 trips in the p.m. peak. The submitted TIA
assumes the existing EFU would generate 50 daily trips and 5 p.m. peak hour trips. The applicant
needs to explain the difference of why they expect 13 fewer daily trips (63-50) under the existing
EFU zone and one less p.m. peak hour trip (6-5). The study's conclusions probably won't change,
but the seeming discrepancy still needs to be explained and Table 1 revised if necessary.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011 Page 7 of 41
The study's horizon year is 2030 to be consistent with the horizon years of the Deschutes County
Transportation System Plan (TSP) and the City of Bend TSP. That makes sense. Alas, the 13 year
timeframe is inconsistent with Deschutes County Code (DCC) as DCC 18.116.310'E)(4) specifically
requires a 20 year traffic analysis for zone changes. The study needs to examine affected County
intersections out to 2037.
Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of $3,937
per p.m. peak hour trip. While SDCs are not assessed for this land use, they do apply as sites
develop so the SDC info is provided. For residential uses, 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) per home. 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.
Staff Comment: The applicant submitted an updated traffic analysis in its supplemental
application materials.
Department of State Lands, Planning and Policy Unit, Aquatic Resources Management
Program
... a change in land use from normal farming and ranching to other uses removes ground
disturbing activities from removal fill exemptions within wetlands and waters (if any exist on this
property) ... if there are any wetlands or waters on the property (I can't remember the details of
this property) then the change from EFU and farm use removes any agricultural exemptions that
may have applied under removal fill.
Staff Comment: According to the County's property information and maps, the SRT contains
no wetlands, nor does it have a history of farming or ranching activities.
TransCanada, Gas Transmission Northwest LLC
Reference is made by the applicant to request approval of a Comprehensive Plan Map Amendment
to change a portion of the subject property from an Agricultural designation to a Rural Residential
designation and from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10). The
proposed subdivision is located on or adjacent to the TransCanada -Gas Transmission N0l thwest
LLC (GTN) gas pipelines easement in Section 11, T 18 N, R 12 E, W.M. (see attached google earth
image) between Steven's Rd. and Ferguson Rd. in Deschutes County, Oregon.
GTN owns and operates two (2) high-pressure natural gas pipelines which begin at the
U.S./Canada border, extend across Idaho, Washington and Oregon, and end at the
Oregon/California border. The above referenced request affects lands upon which the GTN
pipeline system crosses, containing two (2) high pressure natural gas pipelines, (1) 36 -inch and (1)
42 -inch pipelines which are located within the GTN 83.75 foot easement (50 feet belongs to the
DSL easement# 40319 -EA).
We have no objection to the request but are concerned regarding development of the property.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011 Page 8 of 41
We ask that provisions in the Right -of -Way Agreement granted to our company several years ago
be observed. The "Right -of -Way Agreement" grants to GTN a right-of-way 83.75 ft. in width over
and across the property impacted by the applicant's request. It is important that GTN provides
input and is willing to meet with the developer/Community Development Department during the
design phase impacting the GTN pipelines and right-of-way to encourage best practices and
enhance pipeline corridor safety which is in the best interest to us all.
In order to protect the integrity and safety of these pipelines and to safeguard the land rights
obtained several years ago, we ask the following comments to be included by Deschutes County
Planning Division:
1. No buildings or structures of any kind are to be placed upon GTN's right-of-way.
2. No leaching fields, septic tanks, drain fields, wells, reservoirs, or other water
impoundments are to be placed on GTN's right-of-way.
3. Any underground crossing of GTN's right-of-way must be a minimum of one (1) foot above
or two (2) feet below GTN's pipelines and this depth must be maintained across the entire
83.75 ft. right-of-way. A "Consent to Common Use" agreement must be obtained from GTN
before third parties install any facilities over/across the right-of-way. Parallel
encroachments inside the easement are not allowed.
4. Any new permanent road crossings of GTN's right-of-way must make provisions for
protection of the pipelines from the additional external loading superimposed upon the
pipelines by the vehicular traffic using the roadway. GTN reserves the right to design and
install the necessary pipeline protection, if any; however, the cost of design and installation
shall be borne by the proponents of the new roadway.
5. As required by law GTN requests a 48-hour notice by calling 811 (2 working days) prior to
the commencement of any excavation or other work. Any work on the GTN right-of-way
requires than a GTN Field Representative be present. Please contact the GTN Redmond
office at (541) 548-4110.
The following agencies either had no comment or did not respond to the notice: Bend
Public Works Department, Bureau of Land Management, Cascade Natural Gas Co.,
Department of Environmental Quality, Deschutes County Assessor, Oregon Department of
Transportation, Oregon Department of Agriculture, Oregon Department of Fish & Wildlife,
PG & E Gas, U.S. Fish & Wildlife.
1. PUBLIC COMMENTS: On September 8, 2017, the Planning Division mailed a Notice of
Application to all property owners within 750 feet of the subject property. Written comments
were received prior to the hearing from the following individuals:
Steve Brainerd
We were discussing with neighbors [Eric & Amber Work: Tax Lot 1812120000801] the State of OR:
DSL: Account 151656 812000001800 260 acres: Zoning change EFU-TRB to MUA-10:
The owners of these abutting properties to the east would like to see some type of road access to
the backside of these properties from the future.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011 Page 9 of 41
East side abutting properties would like a road access to back side of these properties from Stevens
Road in the PLAN
A road to access these properties in the future.
Please put these comments into the public record for 247 -17 -000726 -PA & ZC
See attached document
Tom and Beth Lomax
We live on Stevens road and will be directly impacted by the proposed land action change on the
State Land to the South of Stevens road. This change would essentially make a 640 acre residential
parcel in what is now MUA or agricultural zoning. Has the parcel on the east side of that property
already had a zoning change? It was my understanding that it was brought into the UBG and that
there would be a zoning change process after that. Please see specific listed comments below.
• The entire parcel of State Land would make an amazing open space park that over time in
Bend would be invaluable.
• This land has unobstructed views of the surrounding mountains, is sheltered from views of
the surrounding city and has natural caves and lava features.
• Due to its size it will be irreplaceable in the future and must be one of the largest
undeveloped parcels in as close to the core of the city that there is in the Bend area.
• There is sufficient private land available in the surrounding area to bring into the UBG or
to change the zoning on, to fulfill the need for additional building areas.
• By changing this entire 640 acres to residential and not the properties to the North between
Stevens Road and the canal, the character of the neighborhoods would be completely
changed.
• These properties are zoned MUA 10 and with all the changes that the development of the
State Land would bring, the use of these properties would be substantially changed.
• If this development were to move forward, the proprieties on the South are insulated
somewhat due to the landfill but on the North Stevens road would be directly impacted.
• If the State Land has to be developed, which I understand is the only way for the State to
see income from this land swap, then the proprieties between Stevens road and the canal
should also be rezoned to allow those propriety owners to change the use or have a better
chance of moving somewhere else that maintains the character of MUA 10.
• If there is any interest in the planning department in walking this property to see some of
its natural attributes I would gladly lead a group around the property.
Staff Comments: The attachments Mr. Brainerd submitted are in the record. Staff has
included a portion of one of the maps to demonstrate the location of the road access
referenced above. The applicant has included a conceptual master plan, but that conceptual
master plan is not being reviewed as part of the subject applications. Only the Plan
Amendment and Zone Change application is being reviewed at the present. Any future
subdivision of the property, if the property were in the jurisdiction of Deschutes County,
would consider road development pursuant to the provisions of DCC Title 17 (the Subdivision
Ordinance) and any other applicable sections of the DCC. Also in Mr. Brainerd's comments
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011Page 10 of 41
J•
are questions as to why there was only one public comment in the record at the time he
submitted comments, and why Central Oregon LandWatch (COLW) hasn't opposed the
application. Staff notes only two public comments have been received and were included in
the record. Staff also notes that COLW has not participated in the land use process as of the
date of this Staff Report.
The application will be reviewed and eventually approved or denied based only on the
approval criteria that apply to the proposal, which is listed at the beginning of this Staff
Report. The applications only include the subject property, so will not and cannot change the
Comprehensive Plan or Zoning Maps for other nearby properties. If a property owner
desired similar amendments for their own property, then separate applications would be
required and would be reviewed on their own merit. The DSL is not applying for specific
development at this time. Staff also notes the majority of the properties to the north of
Stevens Road and south of the irrigation canal are already zoned MUA-10.
ADD aroad to access
these properties
NOTICE REQUIREMENT: The applicant complied with the posted notice requirements of
Section 22.23.030(B) of Deschutes County Code (DCC) Title 22. The applicant submitted a
Land Use Action Sign Affidavit, dated September 14, 2017, indicating the applicant posted
notice of the land use action on the property on that same date. On March 6, 2018, the
Planning Division mailed a Notice of Public Hearing to all property owners within 750 feet of
the subject property. A Notice of Public Hearing was published in the Bend Bulletin on
Sunday, March 11, 2018. Notice of the first evidentiary hearing was submitted to the
Department of Land Conservation and Development on March 5, 2018.
K. REVIEW PERIOD: The application was submitted on August 28, 2018. The application was
deemed incomplete on September 25, 2017. Upon submission of additional application
materials, the application was deemed complete on January 29, 2018. According to
Deschutes County Code 22.20.040(D), the review of the proposed quasi-judicial Plan
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Amendment and Zone Change application is not subject to the 150 -day review period.
L. LAND USE HISTORY: According to the applicant, the SRT is part of Trust Lands that are
managed by DSL for the exclusive benefit of the Common School Fund (CSF) as directed by
the State Land Board (the Governor, Secretary of State, and the State Treasurer). CSF lands
were granted to the state by the federal government at statehood to support K-12 public
schools throughout the state. The SRT was acquired from the federal government in the mid-
1990s to compensate for deficiencies in the original land allocation at the time of statehood.
Previous land use actions associated with the subject property are:
SW3985: A 1980 driveway access permit issued by the Road Department for access to the
subject property from Stevens Road. The owner of the property at the time was the BLM.
CU -97-132: A 1997 conditional use permit to establish a mainline valve and blowdown
assembly for an existing natural gas pipeline. The applicant was Pacific Gas Transmission
Company.
CU -04-21: A 2004 conditional use permit to establish a utility facility consisting of an electric
substation. The applicant was Central Electric Cooperative (CEC). The facility was not
constructed.
PS -09-4: A 2009 Department of State Lands sign -off for a renewal of Central Electric
Cooperative's power line easement across State lands. The applicant was CEC.
PA -11-7 and ZC-11-2: The Plan Amendment and Zone Change applications which were
approved for the western portion of the subject property. The applicant was the DSL.
247 -16 -000075 -PS: A 2016 Department of State Lands sign -off for a renewal of the gas
transmission line easement across State lands. The applicant was TransCanada.
M. HEARINGS OFFICER: At the outset of the hearing I provided the required notices. I
indicated that I had had no ex parte contacts, had not conducted a site visit and had no
conflicts of interest. I asked for but received no procedural or other objections to hearing
this matter. At the end of testimony, I provided an opportunity to keep the record open as
provided by statute, but no request was received.
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III. FINDINGS AND CONCLUSIONS
TITLE 18 OF THE DESCHUTES COUNTY CODE (ZONING ORDINANCE) & THE DESCHUTES COUNTY
COMPREHENSIVE PLAN
A. Chapter 18.136, Amendments
1. Section 18.136.010, Amendments
DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for text or
legislative map changes shall be as set forth in DCC 22.12. A request by a property owner
for a quasi-judicial map amendment shall be accomplished by filing an application on
forms provided by the Planning Department and shall be subject to applicable
procedures of DCC Title 22.
FINDING: The applicant, also the property owner, has requested a quasi-judicial plan amendment
and filed the applications for a Plan Amendment and Zone Change. The applicant has filed the
required Planning Division's land use application forms for the proposal. The application will be
reviewed utilizing the applicable procedures contained in Title 22 of the Deschutes County Code.
2. Section 18.136.020, Rezoning Standards
The applicant for a quasi-judicial rezoning must establish that the public interest is best
served by rezoning the property. Factors to be demonstrated by the applicant are:
A. That the change conforms with the Comprehensive Plan, and the change is
consistent with the plan's introductory statement and goals.
FINDING: The following provisions of Deschutes County's Comprehensive Plan should be
considered in reviewing this proposal to change the plan designation from Agriculture (AG) to Rural
Residential Exception Area (RREA) and to change the zoning from EFU to MUA-10. Other provisions
of the plan do not apply.
Chapter 2. Resource Management
1. Section 2.2, Agricultural Lands Policies
Goal 1, Preserve and maintain agricultural lands and the agricultural industry.
FINDING: As discussed below, the applicant's soil study, NRCS soil data, and the findings in the
submitted burden of proof effectively demonstrate that the subject property is not suitable for
designation as Agriculture in the Comprehensive Plan.
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Policy2.2.2 Exclusive Farm Use sub -zones shall remain as described in the 1992 Farm Study and
shown in the table below, unless adequate legal findings for amending the sub -zones are
adopted or an individual parcel is rezoned as allowed by Policy 2.2.3.
FINDING: The applicant is not asking to amend the subzone that applies to the subject property;
rather, the applicant is seeking a change under Policy 2.2.3 and has provided evidence to support
rezoning the subject property to MUA-10.
Policy 2.2.3 Allow comprehensive plan and zoning map amendments for individual EFU parcels
as allowed by State Statute, Oregon Administrative Rules and this Comprehensive Plan.
FINDING: The applicant has applied for a Zone Change to rezone the subject property from EFU to
MUA-10. The applicant has also applied for a Plan Amendment to support this Zone Change, which
would designate the approximately 260 acres as RREA rather than AG. Rather than pursuing an
exception to Goal 3, which would ordinarily be the method of effectuating such a change, the
applicant has attempted to demonstrate that the subject property does not meet the state
definition of "Agricultural Land", as defined in Statewide Planning Goal 3 (OAR 660-033-0020).
The Land Use Board of Appeals (LUBA) allowed this approach in Wetherell v. Douglas County, 52 Or
LUBA 677 (2006), and this approach was utilized in the previous Plan Amendment and Zone Change
applications for the western portion of the subject property, files PA -11-7 and ZC-11-2. The County
Hearings Officer also accepted this method in file PA -10-5 (Rose & Associates). In Wetherell v. Douglas
County, LUBA states at pp. 678-679:
As we explained in DLCD v. Klamath County, 16 Or LUBA 817, 820 (1988), there are two ways a county
can justify a decision to allow nonresource use of land previously designated and zoned for farm use
or forest uses. One is to take an exception to Goal 3 (Agricultural Lands) and Goal 4 (Forest Lands).
The other is to adopt findings which demonstrate the land does not qualify either as forest lands or
agricultural lands under the statewide planning goals. When a county pursues the latter option, it
must demonstrate that despite the prior resource plan and zoning designation, neither Goal 3 or Goal
4 applies to the property. Caine v. Tillamook County, 25 Or LUBA 209, 218 (1993); DLCD v. Josephine
County, 18 Or LUBA 798, 802 (1990).
The facts pertinent to the subject application are sufficiently similar to those in PA -11-7 and PA -10-
5 to allow the applicant to attempt to show that the subject property is not agricultural land, rather
than seeking an exception to Goal 3 under state law.
Policy2.2.4 Develop comprehensive policy criteria and code to provide clarity on when and how
EFU parcels can be converted to other designations.
FINDING: This provides direction to Deschutes County to develop new policies to provide clarity
when EFU parcels can be converted to other designations. In the findings for the previous Plan
Amendment and Zone Change for the western portion of the subject property, the County found
that this policy does not impose a moratorium on requests for applications of this type, and that
nothing in this policy prohibits the conversion of EFU parcels to other designations (see PA -11-7,
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also 247 -16 -000318 -PA, PA -10-5, PA -07-1). Staff concurs with the previous determinations and the
proposal is consistent with this policy.
Goal 3, Ensure Exclusive Farm Use policies, classifications and codes are consistent with local
and emerging agricultural conditions and markets.
Policy 2.2.13 Identify and retain accurately designated agricultural lands.
FINDING: This plan policy makes it clear that it is County policy to identify and retain agricultural
lands that are accurately designated. The applicant proposes that the subject property was not
accurately designated as demonstrated by the soil study, NRCS soil data, and the applicant's burden
of proof.
2. Section 2.5, Water Resources Policies
Goal 6, Coordinate land use and water policies.
Policy 2.5.24 Ensure water impacts are reviewed and, if necessary, addressed for significant
land uses or developments.
FINDING: In the previous Plan Amendment application for the subject property, the County found
that any proposed water use for the development of the subject property would be reviewed under
any necessary land use process for the site (e.g. conditional use permit, tentative plat). Staff agrees
with the previous decision and finds that it is also relevant to the subject application.
3. Section 2.7, Open Spaces, Scenic Views and Sites
Goal 1, Coordinate with property owners to ensure protection of significant open spaces and
scenic views and sites.
Policy 2.7.3 Support efforts to identify and protect significant open spaces and visually
important areas including those that provide a visual separation between communities such
as the open spaces of Bend and Redmond or lands that are visually prominent.
Policy 2.7.5 Encourage new development to be sensitive to scenic view and sites.
FINDING: The applicant addressed this criterion in their burden of proof, stating:
No actual site development or land division/subdivision is proposed at this time, and thus the
applicability of this evaluation criterion is uncertain. Nevertheless, the SRT Conceptual Master Plan
includes significant proposed open space areas comprised of lava caves, lava tubes, lava rock
outcrops, a natural gas pipeline easement, and a former county landfill site. The former county landfill
site has been environmentally analyzed and reviewed and has been found to be properly closed and
managed according to the Oregon Department of Environmental Quality.
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FINDING: The subject property is not within the Open Space and Conservation (OS&C) Zone, nor is
it located within a Landscape Management (LM) Combining Zone associated with designated scenic
highways, roads, rivers, and streams. Additionally, no actual development of the property is
proposed at this time, so staff finds these policies do not apply to the subject proposal.
Chapter 3. Rural Growth
1. Section 3.2, Rural Development
Growth Potential
As of 2010, the strong population growth of the last decade in Deschutes County was thought
to have leveled off due to the economic recession. Besides flatter growth patterns, changes to
State regulations opened up additional opportunities for new rural development. The
following list identifies general categories for creating new residential lots, all of which are
subject to specific State regulations.
• Some farm lands with poor soils that are adjacent to rural residential uses can be rezoned
as rural residential
FINDING: This section of the Comprehensive Plan does not contain Goals or Policies, but does
provide the guidance above. In response to this section, the applicant's burden of proof provides
the following:
The County Comprehensive Plan notes that "Some farm lands with poor soils that are adjacent to
rural residential uses can be rezoned as rural residential." The requested Plan amendment is based
on the results of the submitted Soils Investigation for the SRT which has demonstrated that the subject
property does not constitute "agricultural lands" as defined in the goal, based upon a site-specific soils
study conducted by a certified, professional soil scientist (Roger Borine). Therefore, the proposal is
consistent with this section of the Comprehensive Plan, given that the subject property has been
determined to be non -resource land appropriate for rural residential development.
Staff notes that the MUA-1 0 Zone is a rural residential zone and as discussed in the Findings above,
there are many adjacent properties to the east and north that are zoned MUA-1 0. Additionally, many
properties to the north and west are within urban residential zones. Staff agrees with the applicant's
response and finds the proposal complies with this policy.
2. Section 3.3, Rural Housing
Rural Residential Exception Areas
In Deschutes County most rural lands are designated for farms, forests or other resources and
protected as described in the Resource Management chapter of this Plan. The majority of the
land not recognized as resource lands or Unincorporated Community is designated Rural
Residential Exception Area. The County had to follow a process under Statewide Goal 2 to
explain why these lands did not warrant farm or forest zoning. The major determinant was
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that many of these lands were platted for residential use before Statewide Planning was
adopted.
In 1979 the County assessed that there were over 17,000 undeveloped Rural Residential
Exception Area parcels, enough to meet anticipated demand for new rural housing. As of 2010
any new Rural Residential Exception Areas need to be justified through taking exceptions to
farm, forest, public facilities and services and urbanization regulations, and follow guidelines
set out in the OAR.
FINDING: The Hearings Officer's decision for the western portion of the subject property (PA-11-
17/ZC-11-2) provides the following findings in response to this portion of Section 3.3 of the
Comprehensive Plan:
To the extent that the quoted language above represents a policy, it appears to be directed at a
fundamentally different situation than the one presented in this application. The quoted language
addresses conversions of 'farm" or 'forest" land to rural residential use. In those cases, the language
indicates that some type of exception under state statute and DLCD rules will be required in order to
support a change in Comprehensive Plan designation. See ORS 197.732 and OAR 660, Division 004.
That is not what this application seeks to do. The findings below explain that the applicant has been
successful in demonstrating that the subject property is composed predominantly of nonagricultural
soil types. Therefore, it is permissible to conclude that the property is not 'farmland" as defined under
state statute, DLCD rules, and that it is not correctly zoned for exclusive farm use. As such, the
application does not seek to convert "agricultural land" to rural residential use. If the land is
demonstrated to not be composed of agricultural soils, then there is no "exception" to be taken. There
is no reason that the applicant should be made to demonstrate a reasons, developed or committed
exception under state law because the subject property is not composed of the type of preferred land
which the exceptions process was designed to protect. For all these reasons, the Hearings Officer
concludes that the applicant is not required to obtain an exception to Goal 3.
There is one additional related matter which warrants discussion in connection with this issue. It
appears that part of Staff's hesitation and caution on the issue of whether an exception might be
required is rooted in the title of the Comprehensive Plan designation that would ultimately apply to
the subject property - which is "Rural Residential Exception Area." There appears to be seven
countywide Comprehensive Plan designations as identified in the plan itself. These include
"Agriculture, Airport Development, Destination Resort Combining Zone, Forest, Open Space and
Conservation, Rural Residential Exception Area, and Surface Mining." Of the seven designations, only
Rural Residential Exception Area provides for associated zoning that will allow rural residential
development. As demonstrated by reference to the Pagel decision discussed above, there appears to
be instances in which rural residential zoning has been applied without the underlying land
necessarily being identified as an exception area. This makes the title of the "Rural Residential
Exception Area" designation confusing, and in some cases inaccurate, because no exception is
associated with the underlying land in question. However, it is understandable that since this
designation is the only one that will allow rural residential development, that it has become a catchall
designation for land types that are authorized for rural residential zoning. That is the case with the
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current proposal, and again, for the same reasons set forth in Hearings Officer Green's decision in
Pagel, I cannot find a reason why the County would be prohibited from this practice.
Based on the above, staff agrees with the Deschutes County Hearings Officer that the above
language is not a policy and does not require an exception to the applicable Statewide Planning
Goal 3, thus, the RREA plan designation is the appropriate plan designation to apply to the subject
property.
Hearings Officer: I concur and note that I also have concluded in at least one prior matter that the
title "Rural Residential Exception Area" is not controlling.
3. Section 3.7, Transportation
The Transportation System was adopted in Ordinance 2012-005 and is hereby incorporated into
this Plan as Appendix C ... Appendix C - Transportation System Plan
ARTERIAL AND COLLECTOR ROAD PLAN
Goal 4
4. Establish a transportation system, supportive of a geographically distributed and
diversified economic base, while also providing a safe, efficient network for residential
mobility and tourism.
Policies
4.4 Deschutes County shall consider roadway function, classification and capacity as criteria
for plan map amendments and zone changes. This shall assure that proposed land uses do
not exceed the planned capacity of the transportation system.
FINDING: This policy applies to the County and advises it to consider the roadway function,
classification and capacity as criteria for Plan Amendments and Zone Changes. The County will
comply with this direction by determining compliance with the Transportation System Planning Rule
(TPR), as described below.
B. That the change in classification for the subject property is consistent with the purpose
and intent of the proposed zone classification.
FINDING: In response to subsection (B) of this policy, the applicant's burden of proof provides the
following:
The proposed zone change from EFU to MUA-10 is consistent with the purpose and intent of the MUA
zone classification. Per DCC 18.32.010, the stated purposes of the MUA zone are:
"The purposes of the Multiple Use Agricultural Zone are to preserve the rural character of various
areas of the County while permitting development consistent with that character and with the capacity
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of the natural resources of the area; to preserve and maintain agricultural lands not suited to full time
commercial farming for diversified or part time agricultural uses; to conserve forest lands for forest
uses; to conserve open spaces and protect natural and scenic resources; to maintain and improve the
quality of the air, water and land resources of the County; to establish standards and procedures for
the use of those lands designated unsuitable for intense development by the Comprehensive Plan, and
to provide for an orderly and efficient transition from rural to urban land use."
The MUA-10 zone is the optimal county zone to transition the SRT to urban use which is a stated
intention of the MUA-10 zone. As detailed above and incorporated herein by reference, the subject
property is not suited for agricultural use. This property is more appropriately zoned MUA-10. The SRT
is currently zoned Exclusive Farm Use (EFU) likely due to prior ownership by the federal government
(BLM), rather than consideration of the agricultural capability of the land; the SRT has never been in
farm or pasture use. Agricultural uses are not practical or compatible with the existing residential uses
surrounding the SRT. Furthermore, as validated by the 2010 and 2011 Soils Investigations, the majority
of the soil types in the SRT are Class 7 & 8 and the property has no water rights. It is not possible to
engage in productive or profitable farming activity without water rights. Agricultural uses at the SRT
are not feasible, practical or compatible with existing and surrounding urban uses and residential
development.
This Comprehensive Plan Map and Zoning Map Amendment request will help to resolve the potential
conflict and incompatibility between the EFU permitted uses and the adjacent, surrounding lands
developed or committed for urban and residential uses. The requested Comprehensive Plan Map and
Zoning Map amendments will result in a zoning assignment that is compatible with neighboring
properties rather than the current EFU zoning, which poses potential conflict with established
residential uses.
Rezoning of the SRT from EFU to MUA-10 will resolve the latent conflict between EFU permitted uses
and the immediately adjacent urban density residential neighborhoods. Furthermore, the
Comprehensive Plan Map and Zone Map change will serve the interests of the southeast Bend
residents, surrounding residential neighborhoods, and public investments in public facilities and
services for the following reasons.
1. The northwest 12 acres of the SRT are already within Bend city limits and UGB;
2. The City of Bend recently expanded its UGB to include the adjacent western portion of the SRT.
This area is planned and will be zoned for a mix of urban uses, including residential, commercial,
institutional, industrial, and open space, consistent with adopted amendments to the City of Bend's
Comprehensive Plan;
3. The adjacent area within the Bend city limits (west of 27th Avenue), includes fully developed urban
density residential areas and major urban infrastructure (Southeast Sewer Interceptor and Avion
water lines) and facilities (including bus route and shelter/stop);
4. A middle school is less than 3/ mile away;
5. The Bend-LaPine School District 2005 Sites and Facility Study proposes a new elementary school
for the immediate vicinity (the SRT is the only vacant parcel in the vicinity large enough to support
a new elementary school);
6. The State Land Board adopted Stevens Road Tract Conceptual Master Plan includes a new
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elementary school in the adjacent western portion of the SRT site with a trail system connecting
the new elementary school with the existing nearby middle school;
7. Future development of the SRT will support the City's plans to create a complete community in
southeast Bend for future and existing residents who currently do not have a local neighborhood
commercial facility;
8. The Stevens Road Tract Conceptual Master Plan, adopted by the State Land Board, was prepared
with the participation of Bend planning staff, school district and parks district staff and other
diverse public input in order to address the interests and needs of southeast Bend residents;
9. There are no active commercial agricultural activities in the vicinity or neighborhood; and
10. Various public agencies and interests have cooperatively participated in planning for the eventual
urban density development of this site to serve the residents of Bend through implementation of
the Stevens Road Conceptual Master Plan.
The requested Rural Residential Comprehensive Plan Map designation is sought at this time in order
to enhance the eligibility of the subject property for inclusion in a future expansion of the Bend UGB
and/or in the designation of urban reserves. The SRT Conceptual Master Plan calls for diverse, mixed
use development including affordable home ownership and rental opportunities. DSL is committed to
the urban development forms illustrated in the Conceptual Master Plan that was developed
cooperatively with Bend planning staff to support the City's Framework Plan. This request to re-
designate and re -assign the Comprehensive Plan and Zoning Maps from Agriculture to Rural
Residential and EFU to MUA-10, respectively, will allow this site to be eligible and competitive for future
UGB inclusion.
The requested MUA-10 zone emphasizes the conservation of open spaces and the protection of natural
and scenic resources. While the subject property is not suitable for agriculture, it does contain lava
tubes and caves; this area represents a significant planned open space area in the SRT Conceptual
Master Plan. The MUA-10 zone will encourage that preservation and protection while also maintaining
consistency with the EFU and MUA-10 lands in the vicinity.
By allowing for a single family dwelling as an outright permitted use (DCC 18.32.020(B), the MUA-10
zone recognizes that rural lands may sometimes be better suited for residential use than agricultural
uses. Other non -resource land uses are conditionally permitted; any nonresource land development
proposal on the property other than a single family dwelling would not be allowed unless it was found
to be consistent with the surrounding properties and the applicable conditional use evaluation
standards. Therefore, the proposed change in zoning is consistent with the intent and purpose of the
MUA-10 zone, and will be compatible with surrounding properties. In addition, as noted elsewhere in
this application, the long-term proposed use of the property is for urban density development after
the property is included in the Bend UGB. Until such time, the property owner plans to essentially hold
the property for that future use.
Staff accepts the applicant's response and finds compliance has been demonstrated.
C. That changing the zoning will presently serve the public health, safety and welfare
considering the following factors:
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1. The availability and efficiency of providing necessary public services and facilities.
FINDING: The applicant's burden of proof provides the following:
The proposed change from EFU to MUA-10 will not require the extension of new public services to the
subject property. The site is already adjacent to urban infrastructure (city sewers and water district
water lines) City services are typically not available until a property annexes to the city, although the
private water district water service may be available upon request. The site likely could be served by
on-site private well and septic system. Similarly, electrical and phone services are already provided to
adjacent properties could be efficiently extended to the property to serve a new dwelling or other use.
Thus, public facilities are available and can be efficiently provided to the site.
Also in the applicant's burden of proof, DSL's long-term goals for the property are explained:
At this juncture, DSL has no intention of actually developing the site into 10 -acre rural residential lots.
DSL is committed to the urban development forms and resulting community functions and services as
illustrated in the Conceptual Master Plan. That Plan was developed cooperatively with City of Bend
planning staff to support the City's Framework Plan. Similar to the benefits of previously rezoning the
western portion of the SRT to a rural residential designation, this request to re -designate and re -assign
the Comprehensive Plan and Zoning Maps from Agriculture to Rural Residential and EFU to MUA-10,
respectively, will allow this site to be eligible and competitive for UGB inclusion in the future and help
the site come closer to realizing its ultimate potential for urban development and community benefit.
Developing the eastern portion of the SRT as part of a larger complete community and urban center
serving southeast Bend residents will make efficient use of existing and planned (adjacent and nearby)
urban infrastructure, public facilities, and public services. Eventual urbanization of this site will
continue to further goals and opportunities to provide a mix of land uses and community facilities
(parks, schools, open spaces, and other facilities) along with supporting urban infrastructure and
services in this and other portions of the Bend urban area.
Although there are no plans to develop the property, the criterion specifies if the zone change will
presently serve public health, safety, and welfare. The surrounding areas outside of the UGB contain
numerous properties that are residentially developed and have water service from a quasi-
municipal source or wells, on-site sewage disposal systems, electrical service, telephone services,
etc. There are no known deficiencies in public services or facilities that would negatively impact
public health, safety, or welfare. Staff agrees with the applicant's response and compliance with this
criterion is demonstrated. Staff adds that if the SRT is not included in the UGB, development of the
property under MUA-1 0 zoning would need to comply with applicable requirements of the DCC,
including possible land use permit, building permit, and sewage disposal permit processes. Through
these development review processes, assurance of adequate public services and facilities will be
verified.
2. The impacts on surrounding land use will be consistent with the specific goals and
policies contained within the Comprehensive Plan.
FINDING: In response, the applicant's burden of proof provides the following:
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011Page 21 of 41
The relevant goals of the Comprehensive Plan are implemented through the MUA-10 purpose
statement in the zoning ordinance, as set forth above. The zone is unique in that it serves as a
transition between EFU lands with productive soils and other rural lands that are "not suited to full
time commercial farming" and are more appropriately suited for "diversified or part time agricultural
uses." The MUA-10 zone retains consistency with EFU lands by allowing a limited
array of rural uses and mandating a 10 -acre minimum lot size (except in cluster developments, in
which the smaller lot sizes are offset by the 65% open space requirement). There are only a limited
number of uses allowed in the MUA-10 zone that are not also allowed in the EFU zone. Further, the
majority of the different non -resource land uses in the MUA-10 zone are conditional, thereby ensuring
that potential impacts on surrounding land uses are reviewed by the County during each quasi-judicial
land use application.
In summary, the MUA-10 zone remains a rural zone devoted to a mix of part-time agricultural and
residential uses. This minimizes potential impacts on surrounding lands. The MUA-10 zoning would
emphasize the continued protection of the open space and wildlife values of the property. As a result
of the proposed MUA-10 zoning, the land development restrictions caused by the (closed) county
landfill, and the lava tubes and caves, the foreseeable impacts on surrounding land uses in the next
5 -years will be minimal to none. Development of the permitted uses in the existing EFU zone could
result in direct conflicts with the existing and fully developed, urban -density residential neighborhoods
adjacent to the SRT. The requested Rural Residential Comprehensive Plan Map Amendment and MUA-
10 Zoning Map Amendment will help to diminish these potential conflicts.
Staff accepts the applicant's response; compliance has been demonstrated.
D. That there has been a change in circumstances since the property was last zoned, or a
mistake was made in the zoning of the property in question.
FINDING: In response, the applicant's burden of proof provides, in part, the following:
Circumstances have changed since the zoning of the property. When the property was first given an
EFU zoning assignment, it was in federal [BLM] ownership; it is now in state ownership as a Common
Schools Fund land asset. This property was zoned without detailed or site specific consideration given
to its soil, geologic, and topographic characteristics. Now that a certified soils scientist has conducted
a detailed Soils Investigation, it is documented that the parcel does not qualify as farmland.
Furthermore, urban density residential development has occurred in direct proximity to the SRT,
directly across the street (27th) to the immediate west of the western portion of the SRT site. The county
also has allowed the establishment of urban related uses (offices) to the immediate south.
In addition, the City of Bend approved expansion of its UGB in 2016 to include the western portion of
the SRT. As a result, the eastern portion of the SRT (subject site) is directly adjacent to the existing UGB,
Major investments in urban infrastructure also have occurred in direct, immediate proximity to the
SRT. The Bend Southeast sewer interceptor, a major sewer conveyance system that is currently being
improved, is adjacent to and designed to serve the western edge of the SRT. Major urban sized water
(Avion) lines abut the western portion of the SRT and the north property boundaries of the subject site.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011Page 22 of 41
And a major road improvement project to nearby Reed Market Road is funded and scheduled for
construction. See Figure 4 for a map showing the location of these improvements.
In summary, the County's zoning of agricultural lands has been a process of refinement since the
1970's. The subject property has never been suitable for agriculture and has never been actively
farmed due to its soil and geologic (lava rock outcrops, lava tubes/caves) characteristics, as well as
lack of water rights for irrigation. Although it was assigned EFU zoning, this property likely should not
have been originally zoned EFU due to its location, soils, geology, and lack of irrigation water supply.
Therefore, the parcel should be rezoned to MUA-10, consistent with the zoning of adjacent
rural/county properties to the west and east. The MUA-10 zoning assignment supports logical,
compatible, and efficient use of the land and will contribute to future urbanization and sound growth
management within the Bend urban area.
The applicant also argues that the SRT was likely zoned EFU in 1979 because it was owned by the
federal government (BLM) at the time. Staff is unaware of the exact reasons why this property was
initially zoned EFU, but supposes it had more to do with the lack of development and the size of the
property itself, and not necessarily the soil classification, availability of irrigation, or historic farming
practices. For whatever reasons the property was initially zoned EFU, staff agrees with the
applicant's findings that there have been several particularly relevant changes in circumstances that
warrant a zone change, especially in consideration of the detailed information provided by the soil
study. Staff finds the applicant has demonstrated compliance with this criterion.
Hearings Officer: As discussed below, there is an issue regarding the role of the soils study.
Regardless, it is apparent from the NRCS maps, staff's analysis of those maps as discussed below,
and the significant changes in the immediate vicinity of the property, that this criterion is met.
OREGON ADMINISTRATIVE RULES CHAPTER 660, LAND CONSERVATION AND DEVELOPMENT
DEPARTMENT
A. Division 6, Goal 4 Forest Lands
1. OAR 660-006-0005. Definitions
(7) "Forest lands" as defined in Goal4 are those lands acknowledged as forest lands, or, in the
case of a plan amendment, forest lands shall include:
(a) Lands that are suitable for commercial forest uses, including adjacent or nearby lands
which are necessary to permit forest operations or practices; and
(b) Other forested lands that maintain soil, air, water and fish and wildlife resources.
FINDING: The subject property is not zoned for forest lands, nor are any of the properties within a
two-mile radius. The property does not contain merchantable tree species and there is no evidence
in the record that the property has been employed for forestry uses historically. None of the soil
units comprising the parcel are rated for forest uses according to NRCS data. The property does not
appear to qualify as forest land.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011 Page 23 of 41
B. Statewide Planning Goal 3, Agricultural Lands; Division 33, Agricultural Lands
1. OAR 660-015-0000(3)
To preserve and maintain agricultural lands.
Agricultural lands shall be preserved and maintained for farm use, consistent with existing
and future needs for agricultural products, forest and open space and with the state's
agricultural land use policy expressed in ORS 215.243 and 215.700.
FINDING: Goal 3 continues on to define "Agricultural Land", which is repeated in OAR 660-033-
0020(1).
2. OAR 660-033-0020, Definitions
For purposes of this division, the definitions in ORS 197.015, the Statewide Planning Goals, and
OAR Chapter 660 shall apply. In addition, the following definitions shall apply:
(1)(a) "Agricultural Land" as defined in Goal 3 includes:
(A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as
predominantly Class I-IV soils in Western Oregon and 1 -VI soils in Eastern Oregon3;
FINDING: The applicant's basis for not requesting an exception to Goal 3 is based on the proposal
that the subject property is not defined as "Agricultural Land". In support, the applicant offers the
following:
A professionally conducted Soils Investigation has demonstrated that the subject property is not
composed predominantly of Class I -VI soils. To analyze the soils on the site, the Applicant obtained the
services of Mr. Roger Borine, a Certified Professional Soil Scientist (CPSS #24918), Soil Classifier (CPSC
#24918) and Professional Wetlands Scientist (PWS #1707) who has a distinguished career in Oregon
with the USDA - Natural Resources Conservation Service including positions as: State Habitat Biologist,
State Wetland Specialist, Resource Soil Scientist, Soil Survey Project Leader, and Soil Scientist. Mr.
Borine is an acknowledged soils expert statewide and especially in Central and Eastern Oregon. The
complete Soils Investigation report, detailing the procedures and methodology used as well as the
complete findings, is attached to this application as Exhibit B.
This analysis was undertaken as part of the previous land use permitting effort associated with the
western portion of the SRT site. Mr. Borine initially conducted a soils investigation of the entire 622 -
acre SRT site. The resulting report was subsequently modified to include only that area from the east
edge of the natural gas pipeline easement westward to 27th Street. As part of this application, data
associated with the subject site (the eastern portion of the SRT) has been further summarized.
3 OAR 660-033-0020(5): "Eastern Oregon" means that portion of the state lying east of a line beginning at the intersection of
the northern boundary of the State of Oregon and the western boundary of Wasco County, then south along the western
boundaries of the Counties of Wasco, Jefferson, Deschutes and Klamath to the southern boundary of the State of Oregon.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011 Page 24 of 41
The purpose of the Soils Investigation for the Stevens Road Tract was to determine the extent of
agricultural land for planning purposes. A comparison of the soils reports for the entire site and the
western -half of the SRT indicates that approximately 227 acres or 87% of the site consists of Land
Capability Class 7 and 8 soils, and 13% (33 acres) is Land Capability Class 6 soils2. This means that the
soils are predominantly non-agricultural soils according to a certified and well-qualified soils scientist
using state sanctioned and approved field investigation methods and techniques. Thus, the Stevens
Road Tract as defined in OAR 660-033-0020 is not predominantly Agricultural Land.
... In July, 2010, a Soils Investigation of the 622 -acre SRT was conducted by Mr. Roger Borine. This
information was again used a year later as the basis for the July, 2011 380 -acre Soils Investigation
findings. The purpose of both Soils Investigations was to determine the extent of agricultural land at
the SRT for planning purposes. The inventory and analysis of the 622 -acre Stevens Road Tract [T18S,
R12E, Section 11, Tax Lots 1700 and 1800] determined that approximately 71% (438 acres) was Land
Capability Class 7 and 8 soils; and 29% (184 acres) Land Capability Class 6 soils. The 622 acre Stevens
Road Tract, as defined in OAR 660-033-0020, is not predominantly Agricultural Land. A second analysis
indicated that approximately 56% (211.4 acres) of the western portion of the SRT was Land Capability
Class 7 and 8 soils. This means that 227 acres of the eastern half of the SRT are Class 7 and 8 soils out
of a total of 260 acres. This translates to 227 acres (87%) of the eastern half of the site being Class 7
and 8 soils.
2 The Borine Reports states that 438 acres of the entire SRT site are Class 7 and 8 soils, while 211
acres of the western half of the site are Class 7 and 8 soils. This means that 227 acres of the eastern
half of the SRT are Class 7 and 8 soils out of a total of 260 acres. This translates to 227 acres (87%)
of the eastern half of the site being Class 7 and 8 soils.
Table 2 and the conclusion of the original soil study are below, with the revised table from the soil
study amendment to reflect the soils only on the western 380 acres.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011 Page 25 of 41
Original Soil Study Table 2 and Conclusion
Table 2 —Order 1 Soil Survey Map Units and Interpretations.
ym
igh
AR
Access Road
100
No
8
9
2
CA
Clovkamp loamy sand, 0-3%
Clovkamp
85
No
6
14
2
DGB
DGB
Deskamp-Gosney complex, 0-5%
Deskamp
50
No
6
Gosney
35
No
7
170
27
GRB
GRB
Gosney-Rock outcrop complex,
0-8°.6
Gosney
60
No
7
Rock outcrop
20
No
8
229
37
GRC
GRC
Gosney-Rock outcrop complex,
8-15%
Gosney
50
No
7
Rock outcrop
25
No
8
68
11
GTE
Gas Transmission Easement
100
No
8
21
3
LF
Landfill
90
No
8
56
9
MFA
Mined/Fill Area
90
No
8
45
7
SR
Stevens Road
100
No
8
10
2
I Conclusion:
The purpose for this study was to conduct an inventory and assessment of the soil resource and
specifically the extent of agricultural land as defined in Oregon Administrative Rules (OAR) 660-033
Agricultural Land.
The inventory and analysis of this 622 acre Stevens Road Tract in T18S, R12E, Section 11, Tax Lots
1700 and 1800 determined that approximately 71% (438 acres) was Land Capability Class 7 and 8
soils and 29% (184 acres) Land Capability Class 6 soils. The Stevens Road Tract as defined in OAR
660-033-0020 is not predominantly Agricultural Land.
Tax Lots ' ,
iCC
7/8': :'
f
-GC
Acres
%+i ,
Acres '.
1700 & 1800
438
71
184
29
Soil Study Amendment
As requested, I have reviewed the Soils Investigation Report by Sage West, LLC of the Stevens Rood Tract located in T185, R128,
and Section 11 as it relates to the new "study area". The review was determined necessary as the boundary and size of the new
"study area" differs from the original 622 acre study area that was reduced to 380 acres. The new area is primarily the west half
of Section 11 that is west of the eastern boundary of the Gas Transmission Easement.
Dan Antonson, GIS Analyst ODSL, digitized the mapping units from the soil map completed by Sage West, LLC dated June 2010 for
(i the new study area. Data points, transect data and accuracy of soil boundary line placement was reviewed both in the office and
field. Minor adjustments to soil boundaries were made to four polygons based on field observation and updated on the ODSL
Stevens Road Tract Map dated 7/25/2011 (attached).
%Mapping unit descriptions and interpretations in the Soils Investigation Report, dated 7/6/2010, accurately describe conditions
existing in the new study area.
)Survey map units and interpretations for the new study area in the Stevens Road Tract are:
bol
ague'
Cc
Area
DG8
Deskamp-Gosney complex, 0-5%
Deskamp
50
No
6
Gosney
35
No
7
168.6
44.4
GRB
Gosney-Rock outcrop complex, 0-8%
Gosney
60
No
7
Rock outcrop
20
No
8
101.5
26.7
GRC
Gosney-Rock outcrop complex, 8-
15%
Gosney
50
No
7
Rock outcrop
25
No
8
12.3
3.2
GTE
Gas Transmission Easement
100
No
8
20.7
5.5
LF
Landfill
90
No
8
55.9
14.7
MFA
Mined/Fill Area
90
No
8
14.2
3.7
SR
Stevens Road
100
No
8
6.8
1.8
The inventory and analysis of this 380 acre study area in the Stevens Road Tract determined that approximately 56% is Land
_" Capability Class 7 and 8, and 44% is Land Capability Class 6. This study area in the Stevens Road Tract as defined in OAR 660-033-
10020 is predominantly non-agricultural land.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011Page 26 of 41
Staff accepts the applicant's evidence and explanation; compliance with this subsection has been
met and the subject property should not be defined as "Agricultural Land".
Hearings Officer: See discussion below.
(B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a),
taking into consideration soil fertility; suitability for grazing; climatic conditions;
existing and future availability of water for farm irrigation purposes; existing land use
patterns; technological and energy inputs required; and accepted farming practices;
and
(C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby
agricultural lands.
(b) Land in capability classes other than I-IV/I-VI that is adjacent to or intermingled with lands
in capability classes I-IV/I-VI within a farm unit, shall be inventoried as agricultural lands
even though this land may not be cropped or grazed;
FINDING: In response to subsections (1)(a)(B), (1)(a)(C), and (1)(b) above, the applicant's burden of
proof provides the following:
The subject property has never been irrigated, has not been used for producing crops or grazing
livestock, is not part of a farm unit and is currently vacant. None of the surrounding properties are
used for active, commercial agriculture including the MUA-10 and EFU zoned abutting properties to
the north and east that are predominantly developed with rural residences engaged in horse raising
and equestrian activities. There are no commercial _farm practices being undertaken on adjacent or
nearby agricultural lands.
A review of both Soils Investigations (July, 2010 (622 acres] and July, 2011 (380 acres]) found that the
Stevens Road Tract, as defined in OAR 660-033-0020, is predominantly nonagricultural land. This
includes the SRT as a whole, as well as both the western and eastern halves when viewed
independently.
The subject property is zoned Exclusive Farm Use (EFU), but this designation is not based on the
agricultural capability of the land, as the SRT has never been in farm or pasture use.
Agricultural uses are not practical or compatible with the existing residential uses surrounding the
SRT. Furthermore, as validated by the 2010 Soils Investigation, the majority of the soil types in the SRT
are Class 7 & 8 and the property has no water rights. Agricultural uses at the SRT are not practical,
profitable or compatible with existing and surrounding urban uses and residential development. This
Comprehensive Plan Map and Zoning Map Amendment request will help to resolve the potential
conflict and incompatibility between the EFU permitted uses and the adjacent, surrounding lands
developed or committed for urban and residential uses.
Staff accepts the applicant's response and finds compliance with this subsection of the rule has
been demonstrated.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011 Page 27 of 41
(c) "Agricultural Land" does not include land within acknowledged urban growth boundaries
or land within acknowledged exception areas for Goal 3 or 4.
FINDING: The subject eastern portion of the SRT is outside of the UGB. The western portion of the
SRT is within the UGB and therefore is not considered Agricultural Land.
3. OAR 660-033-030, Identifying Agricultural Land
(1) All land defined as "agricultural land" in OAR 660-033-0020(1) shall be inventoried as
agricultural land.
(2) When a jurisdiction determines the predominant soil capability classification of a lot or
parcel it need only look to the land within the lot or parcel being inventoried. However,
whether land is "suitable for farm use" requires an inquiry into factors beyond the mere
identification of scientific soil classifications. The factors are listed in the definition of
agricultural land set forth at OAR 660-033-0020(1)(a)(B). This inquiry requires the
consideration of conditions existing outside the lot or parcel being inventoried. Even if a
lot or parcel is not predominantly Class I-IV soils or suitable for farm use, Goal 3
nonetheless defines as agricultural "Lands in other classes which are necessary to permit
farm practices to be undertaken on adjacent or nearby lands." A determination that a lot
or parcel is not agricultural land requires findings supported by substantial evidence that
addresses each of the factors set forth in 660-033-0020(1).
Hearings Officer: As noted above, the property has not been irrigated or farmed. Given its location
adjacent to the UGB and the zoning and uses in the immediate vicinity it is unlikely that it could be
put to productive agricultural use in conjunction with any other property. No one has suggested
otherwise. In conjunction with the discussion above and below, I find that compliance with this
subsection of the rule has been demonstrated.
(3) Goal 3 attaches no significance to the ownership of a lot or parcel when determining
whether it is agricultural land. Nearby or adjacent land, regardless of ownership, shall be
examined to the extent that a lot or parcel is either "suitable for farm use" or "necessary
to permit farm practices to be undertaken on adjacent or nearby lands" outside the lot or
parcel.
FINDING: The evidence that shows that the subject property is not suitable for farm use and is not
necessary to permit farm practices to be undertaken on adjacent or nearby lands, has not assigned
any significance to the ownership of the subject or adjoining properties.
(5)(a) More detailed data on soil capability than is contained in the USDA Natural Resources
Conservation Service (NRCS) soil maps and soil surveys may be used to define agricultural
land. However, the more detailed soils data shall be related to the NRCS land capability
classification system.
(b) If a person concludes that more detailed soils information than that contained in the
Web Soil Survey operated by the NRCS as of January 2, 2012, would assist a county to
make a better determination of whether land qualifies as agricultural land, the person
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011Page 28 of 41
must request that the department arrange for an assessment of the capability of the
land by a professional soil classifier who is chosen by the person, using the process
described in OAR 660-033-0045.
FINDING: The Sage West soils study provides more detailed soils information than contained in the
NRCS Web Soil Survey. NRCS sources provide general soils data for large units of land. The soil study
provides detailed and accurate information about a single property based on numerous soil
samples taken from the subject property. The soil study is related to the NRCS Land Capability
Classification (LLC) system that classifies soils class 1 through 8. An LCC rating is assigned to each
soil type based on rules provided by the NRCS.
The NRCS mapping for the subject portion of the property is estimated below, based on the County's
GIS data and NRCS soil maps available on Dial (the County's property information and mapping
website). This data estimation shows that a predominance of the subject eastern portion of the SRT
is comprised of class 7 and 8 soils (see map below). Staff notes these estimations assume the
highest soil classification of the soil complex for the portion of the soils that are unclassified
(contrasting inclusions), and amount to approximately 98 percent of the subject 260 acres, so a
margin of error should be taken into consideration. Additionally, staff notes that the NRCS data
indicates the average soil compositions across an entire soil unit. The NRCS data and the applicant's
soil study indicate a predominance of class 7 and 8 soils. A discussion regarding the process
described in OAR 660-033-0045 is provided in findings below, as it relates to the previous Plan
Amendment and Zone Change for the western portion of the SRT.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011Page 29 of 41
Soil Unit'
Approx.
% of
unit in
east
SRT
Soil
name
Percent
in
complex
Classification
Approx.
% in
east
SRT
Classification
1-6
Classification
7-8
27A:
Clovkamp
Loamy
Sand
7%
Clovkamp
85%
6
7%
7%
0%
36A:
Deskamp
loamy
sand
2%
Deskamp
85%
6
2%
2%
0%
38B,
Deskamp-
Gosney
complex
6%
Deskamp
50%
6
3%
3%
0%
Gosney
35%
7
2%
0%
2%
Other
15%
6
1%
1%
0%
58C:
Gosney-
Rock
Outcrop-
Deskamp
complex
83%
Gosney
50%
7
42%
0%
42%
Rock
Outcrop
25%
8
21%
0%
21%
Deskamp
20%
6
17%
17%
0%
Other
5%
6
4%
4%
0%
Total percent of the eastern portion of SRT:
34%
64%
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011Page 30 of 41
NRCS Soil Map (dial.deschutes.org)
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011Page 31 of 41
(c) This section and OAR 660-033-0045 apply to:
(A) A change to the designation of land planned and zoned for exclusive farm use, forest
use or mixed farm forest use to a non -resource plan designation and zone on the
basis that such land is not agricultural land; and
FINDING: The applicant is seeking approval of a non -resource plan designation on the basis that
the subject property is not defined as agricultural land.
(d) This section and OAR 660-033-0045 implement ORS215.211, effective on October 1, 2011.
After this date, only those soils assessments certified by the department under section
(9) of this rule may be considered by local governments in land use proceedings
described in subsection (c) of this section. However, a local government may consider
soils assessments that have been completed and submitted prior to October 1, 2011.
FINDING: The applicant's submitted soil study was prepared for the previous files PA -11-7 and ZC-
11-2. The date of the original soil study is July 6, 2010, and the amendment to the study is dated July
26, 2011. Both of these dates are before the effective date of ORS 215.211. Although the soil scientist
was recognized by DLCD and had the appropriate qualifications, it does not appear the soil study
was certified by the department (DLCD). The soils study, as mentioned, was completed and
submitted as part of the western portion of the property's land use applications, which were
submitted on October 31, 2011, after the effective date of ORS 215.211.
In PA-11-7/ZC-11-2 the Hearings Officer addressed this point, as it was discussed as a point of
concern by an opponent of the applications and is the same soil study submitted by the applicant
for the subject application. This discussion is quoted in full below as it is pertinent to the subject
application:
In response to this portion of the definition, the applicant submitted a soil investigative report,
prepared by Roger Borine. In short, that report concludes that the subject property is composed
predominantly of Class VII and Vill soils which do not meet the definition set forth in this administrative
rule.
Newland argued at both the March 20, 2012 public hearing and in written submissions that in order
for the County to rely on the applicant's soils report, the recently adopted Oregon statute at ORS
215.211 and DLCD rules at OAR 660-033-0030 and 0045 must be applied to this application. Newland
argued that these administrative rules, adopted on October 1, 2011, clearly apply to the application.
This does not appear to be disputed.
Newland then argued that a specific provision, OAR 660-033-0030(5)(b), which essentially mimics the
statute, triggered a required review by DLCD of the Borine report. Newland argued that the County
was prohibited by both the statute and DLCD rule from relying on the report until the DLCD had
conducted a review under the rigorous provisions of OAR 660-033-0045.
The applicant and DLCD disagreed with Newland. Specifically, the applicant provided an April 3, 2012
letter from DLCD representative Katherine Daniels in which she argues that OAR 660-033-0030(5)(b)
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011Page 32 of 41
is only triggered where an applicant and the local government desired to rely upon a soils report, such
as the Borine report, to challenge or contradict the NRCS Soil Survey, which is considered to be the
primary source of soils information for the state.
OAR 660-033-0030(5)(b) states:
"If a person concludes that more detailed soils information than that contained in the Internet soil
survey of soil data and information produced by the National Cooperative Soil Survey operated by the
NRCS of the USDA has of January 2, 2012, would assist a county to make a better determination of
whether land qualifies as agricultural land, the person must request that the department arrange for
an assessment of the capability of the land by a professional soil classifier who is chosen by the person,
using the process described in OAR 660-033-0045."
Newland argued, and the Hearings Officer agrees, that this provision may be applicable in the context
of a request to change the zoning of EFU land to a non -resource zone. OAR 660-033-0030(5)(c).
However, the Hearings Officer disagrees with Newland that a DLCD analysis is necessary as part of the
current application. I also disagree with Ms. Daniels's interpretation of OAR 660-033-0030(5)(b),
because it reads too much into the administrative rule and probably grants the department more
discretion than the statute intends, but my disagreement is not relevant to the review of this
application.
In this case, Newland reads the administrative rule far more strictly than the actual language of the
rule indicates. The rule does not require that any time an applicant submits a soils report in support
of an application to rezone EFU land to a non -resource zone that the report must be vetted by DLCD.
That analysis is only triggered when the report "would assist a county to make a better determination
of whether land qualifies as agricultural land." Where the NRCS Soils Survey itself is sufficient to
demonstrate that the land in question is predominantly Class VII and Vlll soils, and a supplemental
soils report merely confirms that data, the rule is not necessarily triggered.
Here, the record contains three sets of corroborating data which all appear to indicate that at least
50 percent, and as much as 70 percent, of the subject property is composed of Class VII and VIII soils.
The primary data is the information submitted by the applicant in its April 18, 2012 letter which
contains the NRCS Soil Survey. The supplemental data includes the Borine report, and calculations
submitted by Staff which were initially identified in a March 20, 2012 e-mail from Tim Berg to Paul
Blikstad, and then refined and submitted during the open record period as a table showing that the
subject property is composed of at least 51 percent Class VII and Vlll soils. Taken together, this
information is sufficient to demonstrate that the subject property is not predominantly agricultural
land as defined in administrative rule. While the Borine report is helpful in confirming the base soil
survey data, the application is not solely dependent on the report, and the Hearings Officer would
consider it unreasonable to expect the applicant to seek and obtain an additional DLCD review of the
report when other reliable data adequately serves the same purpose.
Newland submitted criticism of the Borine report in one of its April 20, 2012 submissions arguing that
the report does not adequately explain a distinction between Class VI and Class VII components of
some of the Deskamp-Gosney soils on the property. The Hearings Officer does not find these
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011Page 33 of 41
arguments persuasive. Newland's criticisms appear to be adequately answered by the applicant
submission of the NRCS Soils Survey and Staff calculations of Class VII and Vlll soil types on the subject
property.
The Hearings Officer would also note that while Newland is careful to confine its criticism to the Borine
report, to be successful in demonstrating that the subject property is predominantly composed of
Class 1 -VI soils, and therefore not eligible to be rezoned from EFU zoning, Newland might be required
to prove that the NRCS Soils Survey for the subject property is incorrect. Such a challenge would
appear to require a soils report that would "assist a county to make a better determination" about
whether the subject property qualifies as agricultural land, and would likely trigger the DLCD review
required by OAR 660-033-0030(5)(b). In other words, the "person" identified in ORS 215.211 and OAR
660-033-0030(5)(b) could be the applicant or any opponents of an application as well.
Based on the above -referenced decision and the NRCS data indicating a predominance of class 7
and 8 soils, it appears the application and associated soil study complies with this administrative
rule.
HEARINGS OFFICER: I generally agree with the above-cited analysis. In this case, staff analyzed the
NRCS maps and demonstrated that, on their face, the maps show that the property is at least 67%
non-agricultural land on average. This is Tess than the 87% the applicant found based on its soil
survey but nevertheless demonstrates that the site consists of predominantly non-agricultural soils.
This is evidence independent of the soil survey. So, the soil survey confirms staff's map analysis and
consideration of the soil survey would, at most, be harmless error. The issue raised by the rule
might be closer if anyone had introduced evidence that the NRCS maps are inaccurate, that staff
miscalculated or some other evidence that the property consists predominantly of agricultural soils.
Although Martin Lawrence testified in passing that the "soil survey" should have been redone, he
provided no evidence of misclassification. To the contrary, the opposition testimony stressed that
the property has value as open space and recreational land, not agriculture.
(e) This section and OAR 660-033-0045 authorize a person to obtain additional information for
use in the determination of whether land qualifies as agricultural land, but do not
otherwise affect the process by which a county determines whether land qualifies as
agricultural land as defined by Goal 3 and OAR 660-033-0020.
FINDING: The applicant has obtained additional information regarding soils and how these soils
relate to the agricultural designation of the property. Staff defers to the Hearings Officer as to if
OAR 660-033-0020 otherwise affects the agricultural land determination.
HEARINGS OFFICER: To reiterate, I find based on the evidence and analysis provided above that
the property was not and is not property classified as agricultural land under Goal 3, the
administrative rule or the Deschutes County comprehensive plan and code.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011 Page 34 of 41
4. OAR 660-012, DIVISION 12, TRANSPORTATION PLANNING
OAR 660-012-0060 Plan and Land use Regulation Amendments
(1) If an amendment to a functional plan, an acknowledged comprehensive plan, or a land
use regulation (including a zoning map) would significantly affect an existing or planned
transportation facility, then the local government must put in place measures as
provided in section (2) of this rule, unless the amendment is allowed under section (3),
(9) or (10) of this rule. A plan or land use regulation amendment significantly affects a
transportation facility if it would:
(a) Change the functional classification of an existing or planned transportation facility
(exclusive of correction of map errors in an adopted plan);
(b) Change standards implementing a functional classification system; or
(c) Result in any of the effects listed in paragraphs (A) through (C) of this subsection
based on projected conditions measured at the end of the planning period identified
in the adopted TSP. As part of evaluating projected conditions, the amount of traffic
projected to be generated within the area of the amendment may be reduced if the
amendment includes an enforceable, ongoing requirement that would
demonstrably limit traffic generation, including, but not limited to, transportation
demand management. This reduction may diminish or completely eliminate the
significant effect of the amendment.
(A) Types or levels of travel or access that are inconsistent with the functional
classification of an existing or planned transportation facility;
(B) Degrade the performance of an existing or planned transportation facility such
that it would not meet the performance standards identified in the TSP or
comprehensive plan; or
(C) Degrade the performance of an existing or planned transportation facility that
is otherwise projected to not meet the performance standards identified in the
TSP or comprehensive plan.
FINDING: As referenced in the agency comments section in the Findings of Fact above, the Senior
Transportation Planner for Deschutes County requested revised details than what the initial traffic
study materials provided. The applicant, as mentioned above, submitted an updated report from
Kittelson dated October 10, 2017, to address these discrepancies. The update included adjustments
to total daily trip generation and p.m. peak hour trips, as well as an extension of the traffic analysis
to the year 2037.1n response to this criterion, the applicant's burden of proof provides the following:
To address Transportation Planning Rule (TPR) requirements and the relevant Comprehensive Plan
goal and policies, a professional Transportation Engineering firm (Kittelson & Associates) was hired to
prepare a Transportation Planning Rule Analysis for the subject property. Kittelson & Associates
initiated this analysis by preparing a scope of work that was reviewed by Transportation Planning
staff from both Deschutes County and the City of Bend, and then conducted that analysis per the
agreed upon work scope. Following immediately below are the criteria, factors, conclusions, and
findings of the Section 11 Transportation Planning Rule Analysis. Exhibit D is the complete
Transportation Planning Rule Analysis report prepared by Kittelson. Exhibit E is a supplemental memo
addressing County staff comments related to Exhibit D.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011 Page 35 of 41
Transportation Planning Rule and Goal and Policy Compliance
OAR Section 660-12-0060 of the Transportation Planning Rule (TPR) sets forth the relative criteria for
evaluating plan and land use regulation amendments. Table 2 summarizes the criteria in Section 660-
012-0060 and the applicability to the proposed rezone application.
Table 2
Summary of Criteria in OAR 660-012-0060
Section
Criteria
Applicable?
Describes how to determine if a proposed land use action1
results in a significant impact.
See response below
2
Describes measures for complying with Criteria #1 where a
significant impact is determined.
See response below
3
Describes measures for complying with Criteria #1 and #2
without assuring that the allowed land uses are consistent
with the function, capacity and performance standards of
the facility
No
(Roadway system currently
operates acceptably)
4
Determinations under Criteria #1, #2, and #3 are
coordinated with other local agencies.
Yes
(Scoping and application
sent to City and County for
review)
5
indicates that the presence of a transportation facility shall
not be the basis for an exception to allow development on
rural lands.
No
6
Indicates that local agencies should credit developments
that provide a reduction in trips.
No
Outlines requirements for a local street plan, access7
management plan, or future street plan.
No
8
Defines a mixed-use, pedestrian -friendly neighborhood
No
9
Outlines requirements under which a local government may
find that an amendment to a zoning map does not
significantly affect an existing and planned transportation
facility.
No
10
Outlines requirements under which a local government may
amend a plan without applying performance standards
related to motor vehicle traffic congestion, delay or travel
time.
No
11
Outlines requirements under which a local government may
approve an amendment with partial mitigation.
No
As noted in Table 2, there are 11 criteria that apply to Plan and Land Use Regulation Amendments. Of
these, Criteria #1, #2, and #4 are applicable to the proposed land use action.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011Page 36 of 41
Criteria #1 and #2 are provided below in italics with responses shown in standard font. Criteria #4 is
summarized in Table 2 with a response provided in the "applicable" column. [Staff note: italic and
standard font are reversed as a quote in this Staff Report]
(1) If an amendment to a functional plan, an acknowledged comprehensive plan, or a land
use regulation (including a zoning map) would significantly affect an existing or planned
transportation facility, then the local government must put in place measures as provided
in section (2) of this rule, unless the amendment is allowed under section (3), (9) or (10)
of this rule. A plan or land use regulation amendment significantly affects a
transportation facility if it would:
(a) Change the functional classification of an existing or planned transportation facility
(exclusive of correction of map errors in an adopted plan);
(b) Change standards implementing a functional classification system; or
(c) Result in any of the effects listed in paragraphs (A) through (C) of this subsection
based on projected conditions measured at the end of the planning period identified
in the adopted TSP. As part of evaluating projected conditions, the amount of traffic
projected to be generated within the area of the amendment may be reduced if the
amendment includes an enforceable, ongoing requirement that would demonstrably
limit traffic generation, including, but not limited to, transportation demand
management. This reduction may diminish or completely eliminate the significant
effect of the amendment.
(A) Types or levels of travel or access that are inconsistent with the functional
classification of an existing or planned transportation facility;
Response: Based on the incremental traffic increase from EFU to the proposed MUA-10 zoning, the
functional classification of all the adjacent roadways will not be affected with the proposed zone
change.
(B) Degrade the performance of an existing or planned transportation facility such
that it would not meet the performance standards identified in the TSP or
comprehensive plan; or
Response: All of the study intersections will operate acceptably with or without the proposed rezone.
(C) Degrade the performance of an existing or planned transportation facility that is
otherwise projected to not meet the performance standards identified in the TSP
or comprehensive plan.
Response: All of the study intersections currently operate acceptably, operate acceptably without the
rezone, and continue to operate acceptably with the rezone assuming incorporation of programmed
projects.
OAR 660-12-0060 (2) Where a local government determines that there would be a significant
effect, compliance with section (1) shall be accomplished through one or a combination of
the following unless the amendment meets the balancing test in subsection (2)(e) of this
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011Page 37 of 41
section or qualifies for partial mitigation in section (11) of this rule. A local government using
subsection (2)(e), section (3), section (10) or section (11) to approve an amendment
recognizes that additional motor vehicle traffic congestion may result and that other facility
providers would not be expected to provide additional capacity for motor vehicles in
response to this congestion.
(a) Adopting measures that demonstrate allowed land uses are consistent with the planned
function, capacity, and performance standards of the transportation facility.
(b) Amending the TSP or comprehensive plan to provide transportation facilities,
improvements or services adequate to support the proposed land uses consistent with
the requirements of this division; such amendments shall include a funding plan or
mechanism consistent with section (4) or include an amendment to the transportation
finance plan so that the facility, improvement, or service will be provided by the end of
the planning period.
(c) Amending the TSP to modify the planned function, capacity or performance standards of
the transportation facility.
(d) Providing other measures as a condition of development or through a development
agreement or similar funding method, including but not limited to transportation system
management measures or minor transportation improvements. Local governments shall
as part of the amendment, specify when measures or improvements provided pursuant
to this subsection will be provided.
(e) Providing improvements that would benefit modes other than the significantly affected
mode, improvements to facilities other than the significantly affected facility, or
improvements at other locations, if the provider of the significantly affected facility
provides a written statement that the system -wide benefits are sufficient to balance the
significant effect, even though the improvements would not result in consistency for all
performance standards.
Response: A significant effect does not occur.
TPR Analysis: Findings and Recommendations
Findings and recommendations of this analysis are presented below:
• The proposed rezone to MUA-10 could generate an additional 393 daily trips and 42 additional
weekday PM peak hour trips as compared to the existing EFU zoning.
• All of the study intersections can accommodate forecast travel demands with the existing and
proposed zoning.
• With the planned realignment of Stevens Road and Reed Market Road the intersection with 27th
Street can continue to adequately accommodate the increased traffic.
• A significant effect does not occur with the incremental trips associated with the proposed rezone,
and no mitigation is required to satisfy the Transportation Planning Rule.
• No existing safety or operational issues were noted at any of the study intersections.
Based on the Senior Transportation Planner's comments and the amended traffic study from
Kittelson, staff finds compliance with the TPR Rule has been demonstrated.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011Page 38 of 41
5. OAR 660-015, Division 15, Statewide Planning Goals and Guidelines
FINDING: The Statewide Planning Goals are outlined in the applicant's burden of proof:
Goal 1, Citizen Involvement. This proposal satisfies this goal because the Planning Division will
provide notice of the proposed plan amendment and zone change to the public through individual
notice to affected property owners, posting of the subject property with a notice of proposed land use
action sign, and publishing notice of the public hearing in the "Bend Bulletin" newspaper. In addition,
at least two public hearings will be held on the proposed plan amendment before it can be approved
- one before the Hearings Officer and one before the Deschutes County Board of Commissioners.
Goal 2, Land Use Planning. This proposal satisfies this goal because the applications were handled
pursuant to the procedures applicable to plan amendments and zone changes in the county's
comprehensive plan and zoning ordinance.
Goal 3, Agricultural Lands. The applicant has elected not to take an exception to Goal 3 for the
subject property, but rather to provide evidence supporting findings that the subject property does
not constitute "agricultural land" as defined in Goal 3. The application includes a professionally
prepared Soils Investigation that demonstrates that the subject property does not constitute
"agricultural land" and therefore the proposed plan amendment and zone change to MUA-I0 is
consistent with Goal 3.
Goal 4, Forest Lands. The proposal is consistent with Goal 4 because the subject property is not zoned
for forest use and the applicant's soil survey shows the subject property does not contain any forest
soils.
Goal5, Open Spaces, Scenic and Historic Areas and Natural Resources. The proposal is consistent
with Goal 5 because, as discussed in the proposed plan amendment and zone change will have no
effect on any designated Goal 5 resources.
Goal 6, Air, Water and Land Resources Quality. The proposal is consistent with Goal 6 because it
will not result in any impact on air or water quality and land resources.
Goal Z Areas Subject to Natural Disasters and Hazards. Goal 7 is not applicable to the proposal
because the subject property is not located in a known natural disaster or hazard area (i.e., flood
hazard zone, steep slopes, historic landslide areas or other hazards identified under Goal 7).
Goal 8, Recreational Needs. Goal 8 is not applicable to the proposal because the proposal will not
affect property zoned for recreation or impact recreational needs. In addition, it supports a potential,
though not certain, eventual transition from rural to urban land use that will incorporate lands
designated for open space and trails.
Goal 9, Economy of the State. The proposal is consistent with Goal 9 because it will not adversely
impact economic activities in the state. In addition, it supports a potential, though not certain,
eventual transition from rural to urban land use that will incorporate and build on a complete
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011Page 39 of 41
community in the southeastern portion of Bend which will include retail, commercial and other
employment uses, consistent with the Stevens Road Conceptual Master Plan.
Goal 10, Housing. Goal 10 is not applicable to the proposal because it does not include development
of additional housing, and does not remove any land from the county's supply of land for needed
housing. In addition, it supports a potential, though not certain, eventual transition from rural to
urban land use that will incorporate a mix of residential uses that will support future city residents
with a range of housing needs, consistent with the Stevens Road Conceptual Master Plan.
Goal 11, Public Facilities and Services. The proposal is consistent with Goal 11 because the
proposed plan amendment and zone change will have little to no impact upon the provision of public
facilities and services to the subject property.
Goal 12, Transportation. The proposal is consistent with the TPR, and therefore is also consistent
with Goal 12 as demonstrated by the attached, professionally prepared Transportation Planning Rule
Analysis.
Goal 13, Energy Conservation. The proposal is consistent with this goal because it will have no
impact on energy use or conservation.
Goal 14, Urbanization. The proposal is consistent with Goal 14 for the following reasons.
1. The proposal does support a likely, though not certain, eventual transition from rural to urban
land use that responds to identified needed lands;
2. The proposal represents an orderly growth pattern that eventually will efficiently enhance and
utilize public facilities and services;
3. The proposal will ultimately result in the maximum efficiency of land uses on the fringe of the
existing urban area;
4. The subject property has been found to be not predominantly agricultural land as defined in OAR
660-033-0020; and
5. The proposal will promote compatibility with surrounding urban uses and will not adversely
impact any nearby commercial agricultural uses because there are none.
Goals 15 through 19. These goals, which address river, ocean, and estuarine resources, are not
applicable to the proposal because the subject property is not located in or adjacent to any such areas
or resources.
The applicant's responses demonstrate compliance with the applicable Goals.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011Page 40 of 41
IV. CONCLUSION
Based on the foregoing findings and conclusions the Comprehensive Plan Map Amendment to
change a portion of the subject property from an Agricultural (AG) designation to a Rural Residential
Exception Area (RREA) designation and the corresponding Zoning Map Amendment to change a
portion of the subject property from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10)
are approved.
Dan R. Olsen, Hearings Officer Date: May 8, 2018
THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision EXHIBIT F TO ORDINANCE NO. 2018-011 Page 41 of 41
-VES
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 29, 2018
DATE: August 23, 2018
FROM: Anthony Raguine, Community Development, 541-617-4739
TITLE OF AGENDA ITEM:
PUBLIC HEARING: Caldera Springs Expansion and LUBA Remand, 17800 Vandevert Road,
Bend
RECOMMENDATION & ACTION REQUESTED:
The applicant is requesting conditional use permit approval to expand the Caldera Springs
Destination Resort ("Resort") to include the subject property. The annexed property will
include a maximum of 340 single-family residences, a maximum of 140 additional
overnight lodging units ("OLU"), recreation facilities and additional resort core amenities.
In total, the Resort will include 660 single-family residential units and 346 OLUs. The
single-family residential units can include traditional single-family homes as well as
townhome, condominium or other non -deed restricted units. As part of this application,
the applicant seeks to modify the Caldera Springs Conceptual Master Plan and ratio of
single-family residences to overnight lodging units from 2:1 to 2.3:1. The expansion will
include a new access to the Resort from Vandevert Road. Additionally, the applicant
proposes modifications to: 1) Wildlife habitat mitigation tract; 2) Types and number of
OLUs; 3) Vandevert Road access; and 4) Setbacks from common areas.
Per the LUBA remand, the County must determine whether each OLU is a 'separate unit'
and whether each OLU is a 'separately rentable unit.'
ATTENDANCE: Anthony Raguine, Senior Planner; Adam Smith, Assistant Legal Counsel
COMMUNITY DEVELOPMENT
FILE NUMBER:
STAFF REPORT
247 -15 -000464 -CU, 247-18-000009-A
APPLICANT/OWNER: Steve Runner
Pine Forest Development, LLC
Sunriver Resort Limited Partnership
P.O. Box 3589
Sunriver, OR 97707
REQUEST:
Conditional use permit application to expand the Caldera Springs
Destination Resort ("Resort") to include the subject property. The
annexed property will include a maximum of 340 single-family
residences, a maximum of 150 additional overnight lodging units
("OLUs"), recreation facilities and additional resort core amenities. As
part of this application, the applicant seeks to modify the Caldera
Springs Conceptual Master Plan and ratio of single-family residences to
overnight lodging units from 2:1 to 2.3:1.
STAFF CONTACT: Anthony Raguine, Senior Planner
PUBLIC HEARING DATE: August 29, 2018
I. APPLICABLE CRITERIA
Title 18 of the Deschutes County Code ("DCC")
Chapter 18.40, Forest Use Zone - F2
Chapter 18.80, Airport Safety Combining Zone - AS
Chapter 18.84, Landscape Management Combining Zone - LM
Chapter 18.88, Wildlife Area Combining Zone - WA
Chapter 18.108, Urban Unincorporated Community Zone - Sunriver
Chapter 18.113, Destination Resorts - Destination Resort
Chapter 18.128, Conditional Use Permits
Title 22, the Deschutes County Land Use Procedures Ordinance
Title 23, The Deschutes County Comprehensive Plan
Chapter 23.84, Destination Resorts
Chapter 23.76, Energy
Oregon Revised Statute (ORS) Chapter 197.435 to 197.467
117 NW Lafayette Avenue, Bend, Oregon 97703 l P.O. Box 6005, Bend, OR 97708-6005
Q. (541) 388-6575 cdOdeschutes.org www.desOutes.org/cd
II. BASIC FINDINGS
A. Location: The subject property has an assigned address of 17800 Vandevert Road, Bend,
and is identified as tax lot 103 on Assessor map 20-11.
B. Zoning and Plan Designation: The subject property is zoned Forest Use Zone ("F2"). It is
within the Airport Safety Combining Zone ("AS") associated with the Sunriver Airport; the
Landscape Management Combining Zone ("LM") associated with Highway 97, Vandevert
Road and South Century Drive; and the Wildlife Area Combining Zone ("WA") associated with
deer migration range. The subject property is also mapped within the Destination Resort
("DR") Combining Zone for Deschutes County.
C. Site Description: The irregularly shaped 614 -acre property is undeveloped with a generally
level topography. Vegetation on-site consists of a dense cover of lodgepole and ponderosa
pine trees. According to the applicant, the 60- to 80 -year-old trees are of various sizes
arranged in small groups and dense thickets, with about 25 percent of the groups consisting
purely of lodgepole pine. Understory vegetation is bitterbrush, bunchgrasses, and typical
high desert vegetation. Several dirt roads and the power line right-of-way cross the site.
The site is approximately 250 feet west of Highway 97 at its closest point in the southeastern
corner. The property has frontage on South Century Drive along its southwestern property
line, and frontage on Vandevert Road along its southern property line.
The existing Resort is approximately 390 acres in size and includes 160 overnight lodging
units, 320 single family residential lots, and recreation facilities including a pool, clubhouse,
golf course and trails.
D. Proposal: The applicant is requesting conditional use permit approval to expand the Resort
to include the subject property. The annexed property will include a maximum of 340 single-
family residences, a maximum of 140 additional overnight lodging units, recreation facilities
and additional resort core amenities. In total, the Resort will include 660 single-family
residential units and 346 OLUs. The single-family residential units can include traditional
single-family homes as well as townhome, condominium or other non -deed restricted units.
As part of this application, the applicant seeks to modify the Caldera Springs Conceptual
Master Plan and ratio of single-family residences to overnight lodging units from 2:1 to 2.3:1.
The expansion will include a new access to the Resort from Vandevert Road.
In addition to the above, the applicant requests modifications of the approval related to:
1. Wildlife mitigation tract;
2. Types and number of OLUs;
3. Vandevert Road access; and
4. 100 -foot setback from common areas.
247 -15 -000464 -CU, 247-18-000009-A Page 2 of 31
Finally, the applicant submitted the following supplement evidence to demonstrate that the
original studies remain sound:
1. Supplemental Traffic Impact Analysis Memorandum;
2. Supplemental Wildlife Report; and
3. Supplemental Sewage Collection and Water Systems Master Plan Memorandum.
For the purposes of this staff report, the 2016 annexation approval by the Deschutes County
Hearings Officer is referred to as "Annexation 1." The revised annexation proposal is referred
to as "Annexation II." The conceptual master plan map for Annexation 11 is attached as
Exhibit A.
E. Surrounding Land Uses and Zoning: The site is bounded to the north by the Sunriver
Business Park on land zoned Urban Unincorporated Community Zone Sunriver - Business
Park District ("SUBP"), and by multi -family residential uses on land zoned Urban
Unincorporated Community Zone Sunriver - Multiple Family Residential District ("SURM").
To the east is the Burlington Northern Railroad. Beyond the railroad tracks are vast tracks
of undeveloped US Forest Service lands that are zoned Forest Use ("F1"), and Highway 97. To
the south, across Vandevert Road are two undeveloped, privately owned, properties zoned
F2, and a residential subdivision zoned Rural Residential ("RR10"). Along much of the
property's western boundary is the Caldera Springs Destination Resort. As noted above, the
property's southwestern boundary is formed by South Century Drive. Across South Century
Drive are residential uses on lands zoned F2, including the Crosswater development. To the
northwest are residential uses in the Sunriver Resort on lands zoned Unincorporated
Community Zone Sunriver - Single Family Residential District ("SURS") and SURivi.
F. Land Use History: The county approvals associated with the existing Resort are
summarized below.
Land Use Approval
Description
CU -05-07
Conceptual Master Plan
M-05-01
Final Master Plan ("FMP")
TP -05-961
Tentative Plan for up to 320 single-family
residential homesites, various future
development tracts, rights-of-way, and
easements for infrastructure
247 -15 -000464 -CU, 247-18-000009-A
Page 3 of 31
SP -05-53
Site Plan for the Resort's first phase including 150
separate rentable units for visitor lodging; eating
establishments for at least 100 persons; meeting
rooms for at least 100 persons, nine -hole short
golf course; three practice golf holes; practice
putting green; lake; and clubhouse which will
incorporate the eating establishments and
meeting rooms
SP -06-14
Site Plan for the Resort amenities including
fitness/pool center, pool, basketball court, play
area, tennis courts, lake expansion, relocated
parking area, lawn sports area, and pavilion
FPA -06-12
Final Plat approval for TP -05-961
SP -06-52/V-06-
16/MA-06-23
Site Plan for overnight lodging units (OLUs)
within Tracts 2 and 3; Minor Variance to reduce
the parking area setback from 250 feet to 225
feet
SP -06-55
Site Plan for a pump station associated with the
Resort water feature
SP -06-61
Site Plan for OLUs in Tract 1, roadway and
driveway areas, and pedestrian bike paths within
Tracts 1, 2 and 3 of the core Resort area; OLUs
provided as lock -off units; A total of 160 OLUs will
be provided within Tracts 1, 2 and 3; This Site
Plan approval is intended to amend and
supplement SP -05-53
MC -07-2
Modification of the Dimensional Standards
approved under the CMP and FMP, to include
dimensional standards for the Overnight
Lodging Cottage Lots
247 -15 -000464 -CU, 247-18-000009-A
Page 4 of 31
TP -07-988
Tentative Plan to divide Tracts 1, 2 and 3 into 45
Tots, and to allow a Zero Lot Subdivision; Tract 1
includes 22 lots, Tract 2 includes 12 lots, and
Tract 3 includes 11 Tots; This division will allow
the construction of the overnight lodging
cottages approved under SP -06-52 and SP -06-61
TU -07-3
Temporary use permit to construct a model
cottage in Tract 1
SP -07-25
Site plan approval for the OLUs approved under
SP -06-52 and SP -06-61 to address the lot
configurations approved under TP -07-988
MP -08-88
Minor Partition to divide Tract FA into three
parcels; Parcel 1 includes a portion of the golf
course; Parcel 2 includes the pavilion, fitness
center, lakes and a portion of the parking lot and
open spaces; Parcel 3 includes the lakehouse
facility and a portion of the parking lot in the core
area of the Resort
MP -08-89
Minor Partition to divide Tract A in the Phase 1
subdivision into two parcels; Parcel 1 includes a
portion of the golf course; Parcel 2 includes the
open spaces
DR -13-23
Declaratory Ruling to determine if the site plan
approval under SP -07-25, authorizing OLUs,
roads and bike paths, has been initiated
MC -13-4
Modification of the CMP and FMP to change the
required availability of OLUs from 45 weeks to 38
weeks
247 -15 -000464 -CU, 247-18-000009-A
Page 5 of 31
MC -13-5
Modification of SP -07-25 to change the required
availability of OLUs from 45 weeks to 38 weeks
247 -15 -000464 -CU
Remanded by the Oregon Land Use Board of
Appeals ("LUBA") as detailed below
As noted above, the existing Resort received approval for the Conceptual Master Pian
("Approved CMP") in 2005. In 2015, the applicant applied for an expansion of the existing
Resort. On April 15, 2016, the Deschutes County (the "County") Hearings Officer issued a
final decision on the applicant's destination resort application, 247 -15 -000464 -CU Caldera
Springs (the "County Decision"; Exhibit B). The County Decision approved an expansion of
the Resort. Central Oregon LandWatch ("COLW") appealed the County Decision to LUBA. On
December 6, 2016, LUBA issued its Final Opinion and Order remanding the County Decision
to the County for further findings and conclusions of law ("LUBA I"; Exhibit C). The applicant
appealed LUBA I to the Oregon Court of Appeals (the "Court"), and COLW filed a cross-appeal
of LUBA I. The Court reversed and remanded LUBA I on May 3, 2017 (Exhibit D). On July 12,
2017, LUBA issued a Final Opinion and Order on remand ("LUBA II"; Exhibit E) from the Court,
remanded the decision back to the County, and instructed the County to determine whether:
1. Annexation II will be operated and situated in a manner that is integral to the
existing Resort - LUBA I; and
2. The existing Caldera Springs "Lock Off" units can qualify as "separate" units for
purposes of the definition of OLUs - LUBA I and II.
On January 4, 20181, the applicant submitted the remand application. The applicant also
informed the County that the applicant and COLW were in settlement negotiations regarding
a modified CMP and supplemental application to address the issues set forth in LUBA I and
II. The applicant requested that the County agree to a mediated settlement. Between
December 21, 2017 and July 11, 2018, the applicant, COLW and the County have met to
discuss the remand application, consistent with the mediation provisions of ORS 215.435.
As a result of the mediation, the applicant and COLW have entered into a settlement
agreement regarding the scope of this supplemental remand application.
G. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several public
agencies and received the following comments:
Deschutes County Senior Transportation Planner.
I have reviewed the June 20, 2018, traffic memo for Caldera Springs, which supplements the
November 17, 2015 traffic impact analysis (TIA). The original traffic study was based on a
Although the applicant requested the County initiate the remand via an email dated December 21, 2017,
Deschutes County requires the formal submittal of an application and requisite fee to initiate the remand.
For this reason, the County views January 4, 2018 as the day the applicant initiated the remand, and day 1 of
the 120 -day land use clock as January 5, 2018.
247 -15 -000464 -CU, 247-18-000009-A Page 6 of 31
proposal of 395 residential units and 95 overnight lodging units (OLU) for a total of 490 units
as part of file 247 -15 -000464 -CU). All units were analyzed under the 9th edition of the
Institute of Traffic Engineers (ITE) trip generation handbook using the category Recreational
Homes (Land Use 260). The new proposal is for 340 residential units and 150 OLUs for a
total again of 490 units. (Staff notes the applicant's traffic engineer correctly points out the
10th Edition has since been published and Recreational Homes now have a lower trip rate,
0.28 p.m. peak hour trips per unit instead of 0.33. However, to maintain consistency, the
County and the traffic engineer have continued to use the trip rate from the 9th edition.)
While the trip generation rate remains the same, the trip distribution does not. The original
burden of proof ("BoP") and TIA assumed the access to Vandevert Road was a right -in, right -
out only (RIRO) and a gated emergency access. Thus the access would not produce any
meaningful daily trips. In the latest BoP on Pages 2 and 8 the applicant seeks to modify the
Conceptual Master Plan's (CMP) condition of approval #2, removing the RIRO and gated
emergency access, instead allowing this to be a full movement access. The BoP on Page 8
discusses the use of key cards which would limit the user to homeowners only. Still, this is
more traffic than was analyzed under the assumptions of the previous TIA. A full movement
access onto Vandevert means both westbound and eastbound traffic could use Vandevert
Road to access the resort. That in turn makes both the South CenturyNandevert Road
intersection and the 97Nandevert intersection more likely to see resort traffic as well. In the
case of South CenturyNandevert previous through trips could now become turning
movements to access the resort via Vandevert.
Staff notes neither the Nov. 17, 2015, TIA titled "Final Caldera Springs Annexation
Transportation impact Analysis" nor the June 20, 2018, memo includes any operational
analysis of the resort access/Vandevert road intersection. From the Nov. 17 TIA, please refer
to Figures 1 (Site Vicinity and Study Intersections), 2 (Site Layout), 7 (2030 Total Conditions
Analysis), and 8 (2035 Total Conditions Analysis). While volumes and operational results are
provided for all other intersections in the horizon year, no such data are provided for resort
accessNandevert Road.
Staff notes while the Deschutes County Transportation System Plan (TSP) on Page 147 calls
for disconnecting Vandevert Road from US 97, the current funded ODOT project allows all
moves, directly and indirectly, to occur. The current ODOT designs accommodate
southbound right ins and right outs via turn lanes and/or accel lanes. The northbound left
ins and left outs are accommodated byJ-turns, a type of channelization to allow turns across
traffic, upstream and downstream of the 97Nandevert intersection. Thus, resort traffic, both
northbound and southbound, can use the Vandevert/97 intersection to reach the resort's
southern access in 2030.
Therefore, based on the above, staff feels the revised traffic memo is insufficient and needs
to be revised to analyze the 2030 operations of the resort accessNandevert Road
intersection and the other studied intersections.
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Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of
$4,240 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 $3,434 ($4,240
X 0.81) for the homes. For the calculation of the transportation system development charges
(SDCs), the County considers lock -off units as separate trip generators. As an example, a
single structure with four lock -off units would be assessed SDC charges, not one. The County
in the past has used Resort Hotel (LU 330) for OLUs, which generate 0.41 trips per room,
making the SDC $1,738 per lock off unit ($4,240 X 0.41). Per resolution, the County uses the
most recent ITE rate when assessing SDCs. 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 June 20, 2018 traffic memo prepared by Kittelson and Associates, Inc. for
the above -referenced file numbers. The traffic memo amended the November 17, 2015
Traffic Impact Analysis (TIA) also prepared by Kittelson and Associates, Inc. Road Department
provided comments regarding the August 25, 2015 application for 15 -464 -CU, which included
a previous version of the TIA, on September 21, 2015.
Deschutes County Road Department requests that the applicant's TIA be amended to
account for the proposed full -movement access to Vandevert Rd and to account for
continuous operation of the Vandevert Rd/Hwy 97 intersection. The November 17, 2015 TIA
assumed that the Vandevert Rd access would be a construction/employee access and that
the Vandevert Rd connection to Hwy 97 would be severed. The Hearings Officer Decision for
15 -464 -CU required the access to be a gated, right-in/right-out emergency access. The June
20, 2018 traffic memo recognizes that the Vandevert/Hwy 97 assumption has changed and
that the applicant is requesting to change the Vandevert Rd access to a full -movement
access, but the memo does not provide any analysis for these changes. Specifically, the
following items need to be updated in the TIA:
1. Trip distribution and forecasted traffic volumes with and without development (DCC
18.116.310(F)(3) and (G)(7) and (11)).
2. Intersection operation, turn lane warrant, and traffic control device warrant analyses
for proposed Vandevert Rd access and revised analyses for all previously -analyzed
intersections (DCC 18.116.310(G)(10),(12),(13),and (15)).
3. Findings and conclusions, including recommended mitigation (DCC
18.116.310(G)(16)).
Oregon Department of Fish and Wildlife
The Oregon Department of Fish & Wildlife (ODFW) is submitting the following comments
regarding the proposed revisions to the wildlife mitigation plan (Exhibit B) and wildlife
assessment (Exhibit D) associated with the expansion of the Caldera Springs Destination
Resort (File No. 247 -15 -000464 -CU, 247-18-000009-A).
247 -15 -000464 -CU, 247-18-000009-A Page 8 of 31
ODFW supports the mitigation area as described in the revised plan dated May 24, 2018. The
increase from 125 acres to 220 acres, as well as the modified location and orientation of the
mitigation area to the south end of the development, parallel with Vandevert Rd, provides a
more functional wildlife corridor. This revised location and orientation will support east -west
movement of migrating mule deer and is essential to the mitigation plan's function and value
from a wildlife habitat perspective.
As part of the wildlife mitigation plan for this development, the applicant has agreed to a
onetime payment of $50,000 to be used by ODFW or other state agency to improve wildlife
passage in the vicinity of the resort. ODFW encourages Deschutes County to include this
mitigation payment in the official county mitigation plan for this development, as it is an
important part of meeting the standard of "no net loss or net degradation of the resource"
as stipulated by DCC 18.113 .070[D], the approval criteria for destination resorts.
In addition to the conditions outlined in Exhibit B, ODFW advises that a condition/ CC&R for
the resort be enacted that bans the feeding of wildlife (with the exception of songbirds). The
majority of wildlife damage complaints and conflicts in residential areas are the result of
people feeding wildlife. As per ODFW wildlife damage policy, the Deschutes Wildlife District
will not respond to any wildlife damage complaints within this development due to the
change in land use. Please include this policy of ODFW in the Deschutes county wildlife
mitigation plan for this development.
The following agencies did not respond to the notice: Burlington Northern Santa Fe Railway,
Deschutes County Assessor, Deschutes County Building Division, Deschutes County
Environmental Soils Division, Deschutes National Forest, La Pine Fire Department, Oregon
Department of Transportation, Oregon Department of Aviation, Sunriver Fire Department,
Sunriver Owners' Association, Sunriver Resort, and Sunriver Utilities.
H. PUBLIC COMMENTS: The Planning Division mailed notice of the public hearing to all parties
of record, all property owners within 750 feet of the subject property, and all property
owners within the existing Resort. The following comments were received.
Donna Harris
As a resident for over 12 yrs. along South Century Dr. (SCD), and a citizen advocate for
preserving deer habitat and connectivity, I specifically want to address the location and size
of the proposed Wildlife Mitigation Tract.
It is essential that this larger proposed wildlife corridor be approved. The prior proposed 150'
wide corridor, existing along the B.N. railroad track, was extremely insufficient for preserving
a mule deer migration corridor. Widening the corridor to at least 1000+ ft. and enlarging it
to 221 acres will hopefully result in a more reasonable habitat for preserving an ever
shrinking barrier- free migration corridor. The fact that ODFW's determination of present
mule deer populations being only at 50 % of sustainability makes preserving adequate deer
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habitat a top priority. This decrease in populations has happened over decades due to
habitat loss from expanding development, barriers to migration corridors from roads and
highways, from increased outdoor recreation, from off -leash pets, and from abandoned and
newly created wildlife unfriendly fences which cause harmful and often fatal injuries to deer
and elk. The expanded Wildlife Mitigation Tract should remain a protected area with minimal
access road encroachment. The only way I see this happening is by forming a legal
conservation easement for the tract as a guarantee that no development of the tract can
occur in the future. Ensuring protection for this expanded wildlife corridor should be made
a condition for approval. Habitat preservation includes adequate cover and maintaining
native shrubs and grasses for forage. Fire mitigation methods in this area that eliminate
thermal or protective cover and native forage will adversely influence essential deer habitat,
so this must be addressed so as not to limit cover and forage.
Other concerns relating to deer migrating through this area are setting up preventative
methods to reduce deer / vehicle collisions (DVC's) along South Century Dr. (SCD) where
Caldera Resort has been built. In 2015, 15 deer out of 44 killed on 8 miles of SCD were hit
along SCD that parallels Caldera. Deer along this part of SCD travel between the Little
Deschutes River for water and forage access, then across SCD to migrate through Caldera
on their spring and fall migrations. The severe winter of 2016-17 decimated mule deer
populations, so correspondingly the DVC's along SCD paralleling Caldera dropped to 5 in this
section for the year 2016, and to 2 killed here out of 9 total along 8 miles of SCD in 2017, and
to 4 deer and 3 elk here out of 12 total along 8 miles of SCD for 2018 to date. The deer
populations have yet to recover in this area from the winter decimation. Meanwhile the total
DVC's in Deschutes Co. continues to climb on state, county, and city of Bend roads. In 2016,
there were 1065 deer and 28 elk killed by vehicles in Deschutes Co. In 2017, there were 1181
deer and 25 elk killed in the County. These are appallingly high numbers.
Preserving deer connectivity means building more wildlife crossings over or under highways
that are becoming barriers to migration. Hwy. 97 is an example where the two wildlife
crossings south of Lava [Butte] have been dose to 90% successful in reducing DVC's. While
gathering the statistics for Deschutes Co. DVC's on all roads, I found out from discussions
with county road staff that from 2013-15, traffic increased 44% along SCD, with an average
of 6200 daily vehicle counts. The last 3 yrs. has seen a substantial increase in traffic, but
another traffic study won't be done for perhaps another year. A traffic study should be done
before the Caldera expansion starts. Mitigation for increased traffic should be thoughtfully
planned out for driver and wildlife safety concerns. Idaho does this by having variable speed
signs along wildlife corridors where night driving speed limits are significantly reduced from
daytime limits, or having deer crossing signs that flash when a sensor picks up that an animal
is on the shoulder or road. Lighted shoulders may help with visibility for seeing deer and elk
at dawn and dusk and night.
In summary, Deschutes Co. does have one strong rule and that is there should be " no net
loss of wildlife habitat". For our deer populations to recover, we must uphold this rule.
However, Goal 5 and Title 18 of DCC, Chapter 18.88 (the Wildlife Area Combining Zone) seem
to be under attack, with protections for wildlife being diminished, for example, by allowing
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once unpermitted development within protected winter deer range. It is the proverbial
"death by a thousand cuts" with our wildlife taking a back seat to expansion. If this continues,
we citizens who love to see our wildlife will no longer see the reason many of us moved to
Central Oregon in the first place.
REVIEW PERIOD: Via an email dated December 21, 2017, the applicant requested the County
initiate remand proceedings. It is the County's policy to initiate any application upon
submittal of an application form and the requisite fee. The applicant submitted the required
application and fee on January 4, 2018. For this reason, the County considers the remand
initiated on January 4, 2018.
Pursuant to ORS 197.860 and 215.435, the 120 -day clock for final action by the County on
remand may be extended up to 365 days if the parties enter into mediation. Per the
applicant's burden of proof, the parties entered into mediation from December 17, 2017 to
the submittal date of the supplemental application on July 11, 2018. Therefore, the County
calculates the first day of the 120 -day deadline beginning on July 12, 2018. The date of the
Deschutes County Board of County Commissioners ("BoCC") public hearing, August 29, 2018,
is day 49 of the 120 -day clock.
111. FINDINGS & CONCLUSIONS
For the purposes of this staff report, staff addresses:
1. The two issues remanded by LUBA;
2. Criteria is for which revised findings are necessary based on the revised scope of Annexation
II; and
3. Requested modifications to certain conditions of approval.
LUBA I
Deschutes County Code ("DCC") 18.113.025(B) requires destination resort expansion proposals to,
Meet all criteria of DCC 18.193 for the entire development (including the existing approved
destination resort development and the proposed expansion area), except that as to the
area covered by the existing destination resort, compliance with setbacks and lot sizes shall
not be required.
If the applicant chooses to support its proposal with any part of the existing development,
applicant shall demonstrate that the proposed expansion will be situated and managed in a
manner that it will be integral to the remainder of the resort. (emphasis added)
LUBA found that the Hearings Officer failed to make specific findings that Annexation I will be
situated and managed in a manner that that will be integral to the remainder of the Resort. The
applicant proposes the following findings to address this criterion for Annexation II.
247 -15 -000464 -CU, 247-18-000009-A Page 11 of 31
[Annexation II] will be operated entirely in conjunction with the operation of the existing
resort. In fact, both areas will comprise a single, unified resort, with existing and new
amenities available to residents and guests of the entire resort. A guest can elect to golf at
the existing Caldera Links and then recreate, eat or relax in the new resort core area
proposed for [Annexation II]. Similarly, guests and residents can utilize trails in both areas
as a part of their experience. In terms of residents, [Annexation II] will be subject to the
same overall CC&Rs that currently govern Caldera Springs. Residents too may elect to
utilize recreational features in both areas. Management of the visitor oriented
accommodations (e.g., pools, restaurants, meeting areas) will be handled by the same
management company. in many ways, [Annexation NJ and the existing resort are mirror
images of each other, with the entire resort operated as a single, unitary resort. Like
Sunriver Resort, which has facilities spread throughout the Sunriver community, Caldera
Springs' facilities are situated throughout the entire resort, but operated by one entity.
Given that the recreation facilities and Visitor Oriented Accommodations will be located
within a single resort area, with connecting roads, paths and open space areas, the County
can find that the resort is "situated" in a manner that is integral to the remainder of the
resort. Similarly, given that [Annexation 11] and the Visitor Oriented Accommodations will
be managed by the same entity and that the residences will all be subject to the same
CC&Rs, the County can find that [Annexation II] will be "managed" in a manner that is
integral to the resort.
Staff agrees with the applicant's findings. The BoCC must determine if Annexation II will be situated
and managed in a manner that that will be integral to the remainder of the Resort.
LUBA 1 and 11
LUBA held that the evidentiary record before LUBA and the Court was not sufficient for the County
to conclude that the existing OLUs in the Resort qualified as "separate rentable units." Both LUBA
and the Court held that for the County to determine that the existing OLUs qualify as "separate
rentable units" under ORS 1 97.435(5)(b)2, individually -owned units "must be, as a factual matter, an
accommodation that is both its own separate unit that is rentable separately from other units."
Separate Unit
With respect to an OLU meeting the test as a 'separate unit,' the Court explained that it is a,
2 197.435 Definitions for ORS 197.435 to 197.467. As used in ORS 197.435 to 197.467:
(5) "Overnight lodgings" means:
(b) With respect to lands in eastern Oregon, as defined in ORS 321.805, permanent, separately rentable
accommodations that are not available for residential use, including hotel or motel rooms, cabins and time-
share units. Individually owned units may be considered overnight lodgings if they are available for overnight
rental use by the general public for at least 38 weeks per calendar year through a central reservation system
operated by the destination resort or by a real estate property manager, as defined in ORS 696.010. Tent sites,
recreational vehicle parks, manufactured dwellings, dormitory rooms and similar accommodations do not
qualify as overnight lodgings for the purpose of this definition.
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...factual determination of whether the rentable unit is actually a separate unit. Further,
we note that 'separate' means 'not shared with another: INDIVIDUAL, SINGLE' or 'existing
by itself: AUTONOMOUS, INDEPENDENT. LUBA II, slip op 8.
In Annexation I, the record included information from the applicant that the existing OLUs each
included its own separate exterior entrance; both the interior and exterior doors are lockable; and
that each unit has a separate bathroom and sleeping area. Despite this evidence, LUBA found that
the existing OLUs do not meet the test of 'separate unit.' Specifically, LUBA found that the Hearings
Officer made no factual determination that the separately rentable cabin lock -off rooms are actually
separate units rather than bedrooms in a single cabin. LUBA II goes on to state,
The Court of Appeals, with the benefit of legislative history regarding the statutes, was unwilling to
go so far as to say the overnight rental 'units'..cannot be lock -off rooms in a single-family vacation
residence. We therefore are unwilling to adopt that reading of the statues as well. Nevertheless,
given the factors articulated by the Court of Appeals and discussed above, we have difficulty
imagining what conditions or modifications might allow the individual cabin lock -off rooms, as
currently proposed, to qualify as the individual 'units' described in ORS 197.435(5)(b) and ORS
197.445(4). The only thing that is clear is that cabin bedrooms that, are in theory separately
rentable and happen to have their own bathroom and lockable inside and outside entrances, but
for which there is no evidence have ever been rented separately from the other bedrooms in the
cabin, are not appropriately viewed as individual 'units.' Something more will be required to
ensure that they are in fact individual units.
in response, the applicant argues that the existing OLUs are separate units based on the following
additional evidence:
• Separate key, room number and television for each unit;
• Separate entrances and keys allow the occupant of each unit to remain separate from other
guests in other units in the same structure;
• Each unit is provided a parking space;
• Each unit includes all the elements of a transient accommodation or a "sleeping unit" as
defined by the Oregon Structural Specialty Code ("OSSC")3;
For these reasons, the applicant argues each existing OLU is "not shared with another" and "exists
by itself" independent from other units in the same structure. The applicant states there is no
functional or practical difference between two adjoining OLUs and two adjoining hotel rooms. The
applicant notes that existing non -Goal 8 resorts such as Black Butte Ranch, Sunriver Resort and
Mount Bachelor Village, as well as existing Goal 8 resorts such as Tetherow and Brasada Ranch, use
lock -off units. In each instance, the applicant states, lock -off rooms may be rented separately or
combined with the adjoining unit to meet a particular guest's needs.
3 A room or space in which people sleep, which can also include permanent provisions for living, eating, and
either sanitation or kitchen facilities, but not both.
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The applicant provides further argument to bolster their position.
Clearly, if a hotel room qualifies under ORS 197.445(4)(b) as a "separate rentable unit"
then so too do the existing Caldera Springs OLU's which share the exact same features as
a hotel or motel room. In any instance where a structure is occupied by separate guests,
similar to an adjoining hotel room, there are interior doors which effectively separate the
various OLUs to permit guests to maintain their privacy in their own OLU. In such instances
there are no physical connections between the units or other interaction between guests
while they are in their own unit. Each OLU operates independent of the other units in a
rnanner exactly the same as adjoining hotel rooms.
The BoCC must determine, based on evidence in the record, that the existing OLUs in the Resort
are a 'separate unit' for the purposes of complying with ORS 197.435(5)(b).
Separately Rentable
As noted above, LUBA found that there is no evidence that the existing OLUs have ever been rented
separately. To address this issue, the applicant included a spreadsheet identifying instances where
Caldera OLUs have been rented separately from each other. The BoP explains,
"Master Reservations" are instances where the entire Caldera cabin is rented through a
corporate, golf package, reunion or other group. The guests in the cabin, however, [have]
their own unique reservation number and charging privileges. For example, if a large
corporate group were to rent all 45 cabins as part of a group retreat for 196 of its
employees, the company would hold the master reservation, but each employee would
have their own unique reservation number, OLU, and charging privileges associated with
their unique suite. Similarly, in a family reunion setting, one family member may reserve
several cabins, but each family member would have their own unique reservation number,
their OLU accommodation and charging privileges. Over the past 7 years, shared
reservations have accounted for an average of 15% of all stays, with a range of 4% to 30%.
Whether a single guest reserves all 196 OLUs or whether 196 separate guests book the
OLUs, the same number of guests can be accommodated in the existing Caldera Springs
overnight units.
Additionally, the applicant points out the Resort website allows individual OLUs to be rented in any
combination desired by a guest - whether it be a single unit or multiple units. Further, the BoP
includes an affidavit from Sunriver Resort which demonstrates that the 156 OLUs managed by the
Sunriver Resort are individually rentable through the central reservation service established by
Sunriver Resort for Caldera Springs.
The BoCC must determine whether the existing OLUs at the Resort are separately rentable.
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Effect of BoCC Determinations
As noted above, because the applicant proposes to expand the Resort, all existing OLUs must meet
the test described above from the Court and LUBA ("OLU test").
Should the BoCC determine that the existing OLUs are 'separate units' and that each is 'separately
rentable,' the applicant can count those existing OLUs towards the OLUs required to meet the
overall ratio of single-family dwellings to OLUs4.
Should the BoCC determine that the existing OLUs are either not 'separate units' or are not
'separately rentable,' then the existing OLUs fail the OLU test and cannot be counted to satisfy the
required single-family residential unit to OLU ratio. This would require the applicant to either
modify to the existing OLUs to meet the OLU test, or require the applicant to propose additional
OLUs on the Annexation II property.
TITLE 18, COUNTY ZONING
A. Chapter 18.113, Destination Resorts Zone
1. Section 18.113.030. Uses in Destination Resorts.
C. Residential accommodations:
1. Single family dwellings;
2. Duplexes, triplexes, fourplexes and multi family dwellings;
3. Condominiums;
4. Townhouses;
5. Living quarters for employees;
6. Time share projects.
FINDING: The applicant proposes to use a combination of different types of single-family units
including, but not limited to:
1. Duplex units, each of which includes full cooking, bathing and sleeping areas;
2. Single-family residential units and auxiliary dwelling units located on a single lot, with the
option of classifying one or both units on the lot as OLUs;
3. Single-family residential units with separately rentable attached and detached suites;
4. Lodge units, which would qualify as "hotel" units under the Destination Resort Statute;
5. Small houses/condominium units on individual lots or developed in a multi -family style
development; or
6. A combination of any or all of the above.
Although detached residential units on the same lot as a single-family dwelling, as contemplated
under options 2 and 3, are not expressly allowed under this section, staff finds this combination of
residential dwelling types is functionally the same as a duplex. As noted in the criterion, duplexes
are allowed. For this reason, staff finds the proposed residential types complies with this criterion.
4 Within the existing Resort, the ratio is 2.5:1. For the Annexation II area, the proposed ratio is 2.3:1.
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2. Section 18.84.050. Use Limitations.
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: In Annexation I, the Hearings Officer found,
The applicant's Burden of Proof Exhibit A and A-1, shows the proposed resort structures
will be set back at least 200 feet from South Century Drive, at least 300 feet from Vandevert
Road, and at least 1,100 feet from Highway 97. All structures which may be visible from
South Century Drive will be buffered through a mix of berms, setbacks and natural
vegetation. Additional evidence submitted during the hearings process confirmed that the
development will not be visible from S. Century Drive. However, no berms are proposed
along Vandevert Road, and therefore, the design review standards are discussed below.
The intervening railroad berm between the resort and Hwy 97 appears reasonably likely
to screen the resort from that direction.
In Annexation II, the applicant incorporates setbacks of approximately 900 feet from South Century
Drive, approximately 1,500 feet from Vandevert Road, and at least 1,200 feet from Highway 97.
Additionally, the applicant proposes the preservation of existing vegetation along all three
roadways. For this reason, staff finds resort structures will not be visible, and will remain not visible,
from South Century Drive, Vandevert Road, and Highway 97. Therefore, LM site plan review will not
be required for structures subject to Annexation II.
This criterion will be met.
B. Chapter 18.88, Wildlife Area Combining Zone
1. Section 18.88.060. Siting Standards.
B. The footprint, including decks and porches, for new dwellings shall be located
entirely within 300 feet of public roads, private roads or recorded easements
for vehicular access existing as of August 5, 1992 unless it can be found that:
1. Habitat values (i.e., browse, forage, cover, access to water) and
migration corridors are afforded equal or greater protection through
a different development pattern; or,
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2. The siting within 300 feet of such roads or easements for vehicular
access would force the dwelling to be located on irrigated land, in
which case, the dwelling shall be located to provide the least possible
impact on wildlife habitat considering browse, forage, cover, access
to water and migration corridors, and minimizing length of new access
roads and driveways; or,
3. The dwelling is set back no more than 50 feet from the edge of a
driveway that existed as of August 5, 1992.
FINDING: In Annexation I, the applicant submitted substantial evidence in the record indicating the
configuration and location of dwellings in Annexation I would provide equal or greater protection
of habitat values, as allowed under subsection 1. Similarly, the applicant for Annexation II provided
an August 22, 2018 memorandum from Dr. Wentes indicating that the location of dwellings will
provide equal or greater protection of habitat values in following ways:
1. The Wildlife Mitigation Tract ("WMT") will provide 220 contiguous acres of undeveloped land
that will be protected and managed as wildlife habitat;
2. The WMT adds width to the north/south corridor for deer and elk movement as well as
providing a visual screen between Annexation II development and the undeveloped land to
the east; and
3. The WMT provides an east/west corridor for deer and elk along Vandevert Road, and
addresses a concern voiced by ODFW.
Dr. Wente goes on to conclude that the WMT would not be available if the Annexation II property
were developed strictly by the 300 -foot siting standard.
Staff agrees with Dr. Wente's assessment and finds this criterion will be met.
C. Chapter 18.113. Destination Resorts Zone - DR
1. Section 18.113.030. Uses in Destination Resorts.
The following uses are allowed, provided they are part of, and are intended to serve
persons at, the destination resort pursuant to DCC 18.113.030 and are approved in
a final master plan:
E. Uses permitted in open space areas generally include only those uses that,
except as specified herein, do not alter the existing or natural landscape of
the proposed open space areas. No improvements, development or other
alteration of the natural or existing landscape shall be allowed in open space
areas, except as necessary for development of golf course fairways and
greens, hiking and bike trails, lakes and ponds and primitive picnic facilities
including park benches and picnic tables. Where farming activities would be
5 Reference Steve Hultberg email dated August 27, 2018.
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consistent with identified preexisting open space uses, irrigation equipment
and associated pumping facilities shall be allowed.
FINDING: The Hearings Officer in Annexation I made the following findings,
Staff found that the annexation property will include approximately 256 acres of dedicated
open space throughout the project. The open space areas will largely be devoted to passive
uses, including bicycle and hiking trails, along with small picnic and park areas. Lakes and
ponds are planned for open space areas, although the precise locations, size and design
have not been finalized at this time. In addition to dedicated open space, the annexation
property includes a 125 -acre Wildlife Mitigation Tract which is in addition to the dedicated
open space. The Wildlife Mitigation Tract is described below in more detail. The Wildlife
Mitigation Tract and the dedicated open space areas will be subject to two separate
management plans. In general terms, the Wildlife Mitigation Tract is intended as a set
aside and will not include any resort -related improvements. This criterion is met.
The applicant proposes to modify the open space for Annexation II as follows,
1. Increase in open space from 125 acres to 220 acres;
2. Relocation of the WMT to the southern portion of the property, along Vandevert Road and
South Century Drive6;
3. Uses in the WMT. The only uses permitted within the WMT shall be the access road depicted
on the Site Plan and soft walking/hiking paths, as generally depicted on the Site Plan. The
following additional restrictions will apply to uses in the WMT:
a. Recreation: To offset potential disturbance -or disruption -related indirect effects of
humans, the WMT will not include the use of any bicycle, mountain bike or other
mechanical vehicles, except as may be reasonably required for wildfire and wildlife
treatments within the WMT as contemplated by the wildfire and wildlife reports
adopted as part of Annexation I.
b. Dogs: The CC&Rs for the Resort shall specifically include a requirement that no off -
leash dogs shall be permitted in the Resort, unless located within a fenced dog park
located within the Resort, but outside the Wildlife Mitigation Tract.
c. Access Road Operation: The access road through the WMT shall be designated as a
homeowner access road, limited to homeowner and construction traffic only. The
access road as depicted on the Site Plan shall be relocated west to be within or
immediately adjacent to the powerline easement. No gatehouse or guest station shall
be permitted at the access point. Appropriate signage shall be installed directing
Resort guests and visitors to the main resort entrance on South Century Drive.
Gates shall be installed and maintained as reasonably practical at Vandevert
Road on the south terminus of the road and at the interior location set forth
on the Site Plan. The gates shall be closed and operable by a key card, vehicle
transponders or other similar equipment 24 hours per day.
6 In Annexation I, the WMT was proposed along the eastern portion of the property, adjacent to the railroad
tracks.
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ii The access road shall be designed in a manner to reduce speeds (including
one or more of the following features: sinuous alignment, bulb outs, traffic
calming features) and shall be posted with a 20 MPH limit and identified as a
wildlife corridor.
Educational signage shall be placed in an appropriate location at the boundary
of the WMT identifying the area as such, and explaining the need not to disturb
habitat or species within the WMT.
4. Structures. No structures other than the access road, gates and proposed walking trails as
shown on the Site Plan shall be permitted in the WMT.
5. Management in the WMT. Consistent with the wildlife management report prepared for the
Resort, the following management measures shall be implemented:
a. Rock Outcrops. Rock outcrops and piles provide unique habitat qualities and serve
as a keystone habitat niche within the WMT. Accordingly, any management activities
should avoid such outcrops and the surrounding vegetation;
b. Snags. Standing snags provide important habitat niches, especially for avian and
small mammal species. Accordingly, all existing wildlife snags should be retained,
unless they are determined to pose a wildfire hazard;
6. Other Habitat Conservation Measures. Vegetation shall be monitored, and weeds and non-
native plants will be controlled and eradicated when possible;
a. Brush patches will be maintained in a mosaic pattern to provide various stages of
growth so that both cover and forage are provided. Vegetation management
activities performed in the WMT shall be performed in the fall or spring (outside of
deer winter season) when areas are accessible and not under fire restrictions, except
that any mowing is not to occur in the spring when there is bird nesting;
J. Ponderosa pine trees (dead and living) will be preserved where possible;e;
c. Downed logs will be retained for their wildlife value where possible;
d. Firewood cutting or vegetation alteration beyond that prescribed as management for
increased habitat value will not be permitted;
e. Nest boxes will be installed and maintained to benefit native bird species;
f. Bat boxes will be installed on trees to benefit native bat species;
g. No new fences are proposed to be included in the WMT;
h. Livestock will not kept or allowed on the property;
The proposed development will prohibit the recreational use of off-road motor
vehicles within the WMT. Motorized vehicle use in the WMT will only be allowed for
management or emergency fire vehicle access;
j. The lots that are directly adjacent to the WMT will have 25 -foot setback requirements
to protect the wildlife value of the area;
k. A program for proper garbage storage and disposal will be instituted for all resort
residences and facilities. The program will be designed to reduce the availability of
human -generated food resources to predators and corvids (crows, ravens, and Jays)
known to predate other wildlife species;
An educational program for local residents will be initiated regarding the native
wildlife populations using the WMT and the need to avoid disturbance of species
within the WMT. Educational materials will include newsletters, flyers, signage on
trails, or other similar outreach tools;
247 -15 -000464 -CU, 247-18-000009-A Page 19 of 31
m. No fireworks of any type will be allowed;
n. No use of drones will be allowed; and
o. No hunting, discharge of firearms or trapping will be allowed.
As noted in the BoP, the applicant specifically requests that items 3-6 be added as conditions of
approval. Staff offers the following suggested revisions shown as strikeout/underline:
3.c.i. Gates shall be installed and .maintained as reasonably practical at Vandevert Road on the
south terminus of the proposed Resort road connecting to Vandevert Road; and at the
interior location set forth on the Site Pian. The gates shall be dosed and operable by a key
card, vehicle transponders or other similar equipment 24 hours per day.
6.d. Firewood cutting or vegetation alteration beyond that prescribed as management for
increased habitat value or as management for wildfire risk, will not be permitted
6.e. Prior to Final Plat Approval, Nnest boxes will be installed. Said nest boxes shall beand-
maintained to benefit native bird species;
6.f. Prior to Final Plat Approval, ghat boxes will be installed on trees to benefit native bat species;
With the suggested revisions, staff finds the proposed uses in the open space will comply with this
criterion, along with the WHMP and the WMP. Further, should the BoCC approve Annexation ll, staff
recommends the BoCC include revised items 3-6 as conditions of approval.
F. Facilities necessary for public safety and utility service within the destination
resort.
FINDING: In Annexation I, the Hearings Officer found that adequate provision for sewer and water
service was proposed, subject to a condition of approval requiring the applicant to provide signed
agreements for water and sewer service prior to Final Master Plan approval. Given the proposed
change in single-family unit and OLU composition, the applicant's Exhibit E is an updated report by
Parametrix (June 21, 2018) detailing the expected sewer and water needs for Annexation 11. The
Parametrix report states,
1. The 2015 Parametrix report was based on a development impact of 395 residential Tots and
95 OLUs. Each residential lot equates to one Equivalent Dwelling Unit ("EDU") in terms of
sewer and water need. The 2015 report assumed each OLU would be 0.2 EDU. Therefore,
the total EDU impact of the 395 residential lots and 95 OLUS was expected to be 414 EDU7.
2. Annexation 11 proposes 340 residential lots and 150 OLUs. Using the same factor for OLUs
referenced above, Annexation 11 will have a sewer/water impact of 415 EDU8.
3. The 2015 Parametrix Report accounted for 34 acres of irrigation, based on Annexation I's
water need for landscaping and the lake area.
4. The 2018 Parametrix Report accounts for 13 acres of irrigation, based on Annexation Il's
reduction in water need for landscaping and the lake area. Consequently, the water need
for landscaping and the lake area will be less than half the previously anticipated need.
395 residential lots + (95 OLUs x 0.2) = 414 EDU.
8 340 residential lots + (150 OLUs x 0.2) = 415 EDU.
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For these reasons, Parametrix concludes the sewer and water needs for Annexation II will be no
greater than those anticipated with Annexation I. Based on this evidence, staff finds Annexation II
will adequately provide for necessary sewer and water need. Similar to Annexation I, staff
recommends a condition of approval requiring the applicant to provide signed agreements for
water and sewer service prior to Final Master Plan approval.
As of the date of this staff report, no comments were received from Sunriver Water LLC/Sunriver
Environmental LLC offering any objection to the ability to serve Annexation II with sewer and water
service.
Given that the total number of residential units and OLUs proposed in Annexation II is the same as
the total number in Annexation I, staff finds the 'will -serve' letters submitted in Annexation I from
MidState Electric, Cascade Natural Gas, and Century Link, are sufficient to assure adequate
provision of electricity, natural gas and telephone service to Annexation II. Fire and police protection
will be provided by La Pine Rural Fire Protection District and the Deschutes County Sheriff's Office,
respectively. Medical service is available from St. Charles in Bend and the medical clinic at Sunriver.
2. Section 18.1 13.050. Requirements for conditional use permit and conceptual master
plan applications.
The CMP provides the framework for development of the destination resort and is
intended to ensure that the destination resort meets the requirements of DCC
18.113. The CMP application shall include the following information:
B. Further information as follows:
2. A traffic study which addresses (1) impacts on affected County, city
and state road systems and (2) transportation improvements
necessary to mitigate any such impacts. The study shall be submitted
to the affected road authority (either the County Department of
Public Works or the Oregon Department of Transportation, or both) at
the same time as the conceptual master plan and shall be prepared
by a licensed traffic engineer to the minimum standards of the road
authorities.
FINDING: For Annexation I, the applicant submitted a Traffic Impact Analysis ("TIA"), dated
November 2015, to determine what impacts, if any, would result from the proposed expansion of
the Resort, and what improvements, if any, would be necessary to address any identified issues.
The 2015 TIA concluded,
1. Annexation I would result in a maximum of 162 p.m. peak hour trips;
2. The study intersections will continue to operate within applicable performance standards,
with the exception of US 97/Vandevert Road;
3. The proposed Vandevert Road access should be limited to construction traffic only or have
outbound left -turn movements restricted until such time that the US 97Nandevert
intersection is closed or restricted to right-in/right-out ("RIRO") movements;
247 -15 -000464 -CU, 247-18-000009-A Page 21 of 31
4. The expansion of the Resort will have little to no impact on internal Resort traffic conditions;
and
5. No other offsite mitigation measures are required to accommodate Annexation I.
To address transportation related issues for Annexation II, the applicant includes, as Exhibit C, a
memorandum from Kittleson & Associates (June 20, 2018). The 2018 memorandum states that
Annexation II will not increase the trip generation from that analyzed in the 2015 TIA. For this
reason, Kittleson and Associates concludes the findings of the 2015 are still valid.
The 2018 memorandum points out that the Hearings Officer limited the Vandevert Road access to
construction traffic only, with gated emergency vehicle only access thereafter. Kittleson argues that
the Hearings Officer's restriction is inconsistent with their analysis. For this reason, Kittleson again
recommends limiting the Vandevert Road access to construction only or have outbound left -turn
movements restricted until such time as the US 97Nandevert intersection is either closed or is
modified to be RIRO only.
As detailed above, the County's Senior Transportation Planner, Peter Russell, reviewed the 2018
memorandum and offered the following comments,
While the trip generation rate remains the same, the trip distribution does not. The original
burden of proof and TIA assumed the access to Vandevert Road was a right -in, right -out
only (RIRO) and a gated emergency access. Thus the access would not produce any
meaningful daily trips. In the latest burden of proof on Pages 2 and 8 the applicant seeks
to modify the Conceptual Master Plan's (CMP) condition of approval #2, removing the RIRO
and gated emergency access, instead allowing this to be a full movement access. The
burden of proof on Page 8 discusses the use of key cards which would limit the user to
homeowners only. Still, this is more traffic than was analyzed under the assumptions of
the previous TIA. A full movement access onto Vandevert means both westbound and
eastbound traffic could use Vandevert Road to access the resort. That in turn makes both
the South Century/Vandevert Road intersection and the 97Nandevert intersection more
likely to see resort traffic as well. In the case of South Century/Vandevert previous through
trips could now become turning movements to access the resort via Vandevert.
Staff notes neither the Nov. 17, 2015, TIA titled "Final Caldera Springs Annexation
Transportation Impact Analysis" nor the June 20, 2018, memo includes any operational
analysis of the resort access/Vandevert road intersection. From the Nov. 17 TIA, please
refer to Figures 1 (Site Vicinity and Study Intersections), 2 (Site Layout), 7 (2030 Total
Conditions Analysis), and 8 (2035 Total Conditions Analysis). While volumes and
operational results are provided for all other intersections in the horizon year, no such
data are provided for resort access/Vandevert Road.
Staff notes while the Deschutes County Transportation System Plan (TSP) on Page 147 calls
for disconnecting Vandevert Road from US 97, the current funded ODOT project allows all
moves, directly and indirectly, to occur. The current ODOT designs accommodate
southbound right ins and right outs via turn lanes and/or accel lanes. The northbound left
247 -15 -000464 -CU, 247-18-000009-A Page 22 of 31
ins and left outs are accommodated by J -turns, a type of channelization to allow turns
across traffic, upstream and downstream of the 97/Vandevert intersection. Thus, resort
traffic, both northbound and southbound, can use the Vandevert/97 intersection to reach
the resort's southern access in 2030.
Therefore, based on the above, staff feels the revised traffic memo is insufficient and needs
to be revised to analyze the 2030 operations of the resort access/Vandevert Road
intersection and the other studied intersections.
The Road Department offers similar comments,
Deschutes County Road Department requests that the applicant's TIA be amended to
account for the proposed full -movement access to Vandevert Rd and to account for
continuous operation of the Vandevert Rd/Hwy 97 intersection. The November 17, 2015
TIA assumed that the Vandevert Rd access would be a construction/employee access and
that the Vandevert Rd connection to Hwy 97 would be severed. The Hearings Officer
Decision for 15 -464 -CU required the access to be a gated, right-in/right-out emergency
access. TheJune 20, 2018 traffic memo recognizes that the Vandevert/Hwy97 assumption
has changed and that the applicant is requesting to change the Vandevert Rd access to a
full -movement access, but the memo does not provide any analysis for these changes.
Specifically, the following items need to be updated in the TIA:
1. Trip distribution and forecasted traffic volumes with and without development (DCC
18.116.310(F)(3) and (G)(7) and (11)).
2. intersection operation, turn lane warrant, and traffic control device warrant analyses for
proposed Vandevert Rd access and revised analyses for all previously -analyzed
intersections (DCC 18.116.310(G)(10),(12),(13),and (15)).
3. Findings and conclusions, including recommended mitigation (DCC 18.116.310(G)(16)).
Therefore, staff asks the applicant to address the County's comments and revise the 2018
memorandum, as necessary.
4. Design guidelines and development standards defining visual and
aesthetic parameters for:
e. Proposed standards for minimum lot area, width, frontage, lot
coverage, setbacks and building heights.
FINDING: As noted in the BoP, the applicant indicates an error was made in the 2015 WHMP
submitted with Annexation 1 that recommended a 100 -foot setback from common areas. Although
this recommendation was not adopted by the Hearings Officer in the Annexation I approval, the
applicant desires to provide clarity that the 100 -foot setback is not necessary. The June 19, 2018
memorandum from Dr. Wente confirms that the 100 -foot setback was not considered during the
wildlife evaluation and its exclusion does not impact the results of the WHMP. For this reason, staff
247 -15 -000464 -CU, 247-18-000009-A Page 23 of 31
agrees with the applicant that the 100 -foot setback from common areas noted in the 2015 WHMP
is not necessary.
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3. Section 18.1 13.060. Standards for Destination Resorts.
The following standards shall govern consideration of destination resorts:
A. The destination resort shall, in the first phase, provide for and include as part
of the CMP the following minimum requirements:
1. At least 150 separate rentable units for visitor oriented overnight
lodging as follows:
a. The first 50 overnight lodging units must be constructed prior
to the closure of sales, rental or lease of any residential
dwellings or lots.
b. The resort may elect to phase in the remaining 100 overnight
lodging units as follows:
i. At least 50 of the remaining 100 required overnight
lodging units shall be constructed or guaranteed
through surety bonding or equivalent financial
assurance within 5 years of the closure of sale of
individual lots or units, and;
ii. The remaining 50 required overnight lodging units shall
be constructed or guaranteed through surety bonding
or equivalent financial assurance within 10 years of the
closure of sale of individual lots or units.
If the developer of a resort guarantees a portion of the
overnight lodging units required under subsection
18.113.060(A)(1)(b) through surety bonding or other
equivalent financial assurance, the overnight lodging
units must be constructed within 4 years of the date of
execution of the surety bond or other equivalent
financial assurance.
iv. The 2:1 accommodation ratio required by DCC
18.113.060(D)(2) must be maintained at all times.
c. If a resort does not chose to phase the overnight lodging units
as described in 18.113.060(A)(1)(b), then the required 150 units
of overnight lodging must be constructed prior to the closure
of sales, rental or lease of any residential dwellings or lots.
FINDING: Ordinance 2013-008 amended subsection iv to allow up to a 2.5:1 ratio of single-family
dwelling units to OLUs. The applicant proposes a ratio of 2.3:1 for Annexation II, meeting this
standard. As discussed above, the applicant is relying on the existing 150 OLUs to allow the
establishment of additional residential units in the Annexation II property. The applicant's ability to
meet the 2.3:1 ratio is dependent on the BoCC's determination whether the existing OLUs are each
a 'separate unit' and whether each is a 'separately rentable unit' as required in LUBA I and II.
D. A destination resort shall, cumulatively and for each phase, meet the
following minimum requirements:
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1. The resort shall have a minimum of 50 percent of the total acreage of
the development dedicated to permanent open space, excluding
yards, streets and parking areas. Portions of individual residential
lots and landscape area requirements for developed recreational
facilities, visitor oriented accommodations or multi family or
commercial uses established by DCC 18.124.070 shall not be
considered open space;
FINDING: The Annexation II property encompasses 614 acres of land. With the enlarged WMT, the
total acreage of open space and WMT will be 381.7, or 62.1 percent. This criterion will be met.
2. Exterior setbacks.
a. Except as otherwise specified herein, all development
(including structures, site obscuring fences of over three feet
in height and changes to the natural topography of the land)
shall be setback from exterior property lines as follows:
i. Three hundred fifty feet for commercial development
including all associated parking areas;
ii. Two hundred fifty feet for multi family development and
visitor oriented accommodations (except for single
family residences) including all associated parking
areas;
One hundred fifty feet for above grade development
other than that listed in DCC 18.113.060(G)(2)(a)(i) and
(ii);
iv. One hundred feet for roads;
v. Fifty feet for golf courses; and
vi. Fifty feet for jogging trails and bike paths where they
abut private developed lots and no setback for where
they abut public roads and public lands.
b. Notwithstanding DCC 18.113.060(G)(2)(a)(iii), above grade
development other than that listed in DCC
18.113.060(G)(2)(a)(i) and (ii) shall be set back 250 feet in
circumstances where state highways coincide with exterior
property lines.
c. The setbacks of DCC 18.113.060 shall not apply to entry
roadways and signs.
FINDING: Based on staff's review of the submitted Concept Master Plan, the area designated as
Visitor Oriented Accommodations/Resort Core' observes a setback of less than 200 feet. Criterion
ii above requires a minimum 250 -foot exterior setback. The applicant should address this criterion.
All other required exterior setbacks appear to be met.
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Section 18.113.070. Approval Criteria.
In order to approve a destination resort, the Planning Director or Hearings Body
shall find from substantial evidence in the record that:
D. Any negative impact on fish and wildlife resources will be completely
mitigated so that there is no net loss or net degradation of the resource.
FINDING: The applicant proposes a modification to the location and size of the WMT. Under
Annexation I, the WMT was proposed to be located primarily along the eastern property boundary
adjacent to the Burlington Northern Railroad main line, and would be 125 acres in size. Under
Annexation II, the WMT will be primarily located along the southern property boundary adjacent to
Vandevert Road, will be 1,425 feet wide, and will include 220 acres of land. The applicant offers the
following proposed findings regarding the modified WMT,
The Supplemental Wildlife Report, again prepared by Dr. Wendy Wente, evaluated the
Revised CMP, and in particular, the relocated and expanded Wildlife Mitigation Tract. As
set forth in the Supplemental Wildlife Report, Dr. Wente again concludes that "the proposed
development continues to meet the requirement set forth in the Deschutes County Code
that any negative impact on fish and wildlife resources will be completely mitigated so
there is no net loss or net degradation of the resource." Dr. Wente also concludes that the
relocated Wildlife Mitigation Tract is preferable to the original because it preserves a
mitigation area that is at least 1,425 feet wide along the entire southern extent of the
proposed development. This area will not only continue to support resident wildlife, but it
will also serve as an east -west movement corridor for mule deer; a primary concern voiced
ODFW during development of the original Wildlife Report.
ODFW concludes that the modified WMT provides a more functional wildlife that will support east -
west movement of migrating mule deer. ODFW notes that the applicant has agreed to a onetime
payment of $50,000 to be used by ODFW or other state agency to improve wildlife passage in the
vicinity of the resort. ODFW encourages Deschutes County to include this mitigation payment in
the official county mitigation plan for this development, as it is an important part of meeting the
standard of 'no net loss or net degradation of the resource' as stipulated by DCC 18.113 .070[D], the
approval criteria for destination resorts.
Staff notes that Dr. Wente's analysis of necessary mitigation to comply with the 'no net loss or
degradation' standard does not rely on the one-time payment for wildlife passage. For this reason,
neither staff nor the applicant finds that a condition of approval is necessary. That said, the
applicant agrees to a voluntary condition of approval requiring payment of $50,000 to ODFW or
other state agency to improve wildlife passage. Should the BoCC agree to this condition, staff
recommends payment be made prior to Final Plat Approval.
In addition to the conditions outlined in the applicant's Exhibit B, ODFW advises that a condition/
CC&R for the resort be enacted that bans the feeding of wildlife (with the exception of songbirds).
ODFW states that the majority of wildlife damage complaints and conflicts in residential areas are
247 -15 -000464 -CU, 247-18-000009-A Page 27 of 31
the result of people feeding wildlife. As per ODFW wildlife damage policy, the Deschutes Wildlife
District will not respond to any wildlife damage complaints within this development due to the
change in land use. For this reason, ODFW requests the County include this policy of ODFW in the
wildlife mitigation plan for this development.
Staff finds this request is not related to any approval criterion. For this reason, staff does not
recommend a condition of approval. That said, the applicant agrees to a condition of approval if
required by the BoCC. Staff asks the BoCC to determine whether a condition of approval prohibiting
feeding of wildlife, other than songbirds, is warranted.
G. Destination resort developments that significantly affect a transportation
facility shall assure that the development is consistent with the identified
function, capacity and level of service of the facility. This shall be
accomplished by either:
1. Limiting the development to be consistent with the planned function,
capacity and level of service of the transportation facility;
2. Providing transportation facilities adequate to support the proposed
development consistent with Oregon Administrative Rules chapter
660, Division 12; or
3. Altering land use densities, design requirements or using other
methods to reduce demand for automobile travel and to meet travel
needs through other modes.
A destination resort significantly affects a transportation facility if it
would result in levels of travel or access that are inconsistent with the
functional classification of a facility or would reduce the level of
service of the facility below the minimum acceptable level identified
in the relevant transportation system plan.
a. Where the option of providing transportation facilities is
chosen, the applicant shall be required to improve impacted
roads to the full standards of the affected authority as a
condition of approval. Timing of such improvements shall be
based upon the timing of the impacts created by the
development as determined by the traffic study or the
recommendations of the affected road authority.
b. Access within the project shall be adequate to serve the project
in a safe and efficient manner for each phase of the project.
FINDING: As discussed previously, both the County Road Department and Senior Transportation
Planner request revisions to the June 20, 2018 Kittleson memorandum. Staff asks the applicant to
address the County's concerns.
K. Adequate water will be available for all proposed uses at the destination
resort, based upon the water study and a proposed water conservation plan.
Water use will not reduce the availability of water in the water impact areas
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identified in the water study considering existing uses and potential
development previously approved in the affected area. Water sources shall
not include any perched water table. Water shall only be taken from the
regional aquifer. Where a perched water table is pierced to access the
regional aquifer, the well must be sealed off from the perched water table.
FINDING: As discussed above, the existing Sunriver water distribution system will be extended to
serve the annexation property. Staff recommends a condition of approval requiring the applicant
to provide a signed agreement for water service prior to Final Master Plan approval. The findings
addressing water supply under DCC 18.113 are relevant here and are adopted herein by reference.
IV. CONCLUSIONS
Based upon the preceding analysis, staff concludes the applicant can comply with most of the
approval criteria. Staff has identified a few issue areas where staff is unsure if the applicant has
met their burden of proof and asks the BoCC to focus their review on these issues.
1. Integral. Will Annexation II be operated and situated in a manner that is integral to the
existing Resort pursuant to LUBA I?
2. OLUs. Are the existing OLUs each a 'separate unit' and each a 'separately rentable unit'
pursuant to LUBA I and II?
3. Exterior Setbacks. Do the visitor oriented accommodations depicted on the Concept
Master Plan meet the 250 -foot exterior setbacks required under DCC 18.113.060(D)(2)?
4. Wildlife Passage Payment. Should a condition of approval be added requiring the applicant
to pay $50,000 for wildlife passage improvements? DCC 18.113.070(D).
5. Wildlife Feeding. Should a condition of approval be added requiring the applicant to
prohibit feeding of wildlife, other than songbirds?
6. Transportation. Will Annexation II result in any transportation related impacts? If yes, what
mitigation measures are necessary? DCC 18.113.070(G).
V. RECOMMENDED CONDITIONS OF APPROVAL
1. Approval is based upon the application, site plan, specifications, and supporting
documentation submitted by the applicant. Any substantial change in this approved use will
require review through a new land use application.
2. Except as modified below, all other conditions of approval for land use file 247 -15 -000464 -
CU remain in effect.
3. Uses in the Wildlife Mitigation Tract ("WMT"). The only uses permitted within the WMT shall
be the access road depicted on the Site Plan and soft walking/hiking paths, as generally
depicted on the Site Plan. The following additional restrictions will apply to uses in the WMT:
a. Recreation. To offset potential disturbance -or disruption -related indirect effects of
humans, the WMT will not include the use of any bicycle, mountain bike or other
247 -15 -000464 -CU, 247-18-000009-A Page 29 of 31
mechanical vehicles, except as may be reasonably required for wildfire and wildlife
treatments within the WMT as contemplated by the wildfire and wildlife reports
adopted as part of Annexation I.
b. Dogs. The CC&Rs for the Resort shall specifically include a requirement that no off -
leash dogs shall be permitted in the Resort, unless located within a fenced dog park
located within the Resort, but outside the Wildlife Mitigation Tract.
c. Access Road Operation. The access road through the WMT shall be designated as a
homeowner access road, limited to homeowner and construction traffic only. The
access road as depicted on the Site Plan shall be relocated west to be within or
immediately adjacent to the powerline easement. No gatehouse or guest station shall
be permitted at the access point. Appropriate signage shall be installed directing
Resort guests and visitors to the main resort entrance on South Century Drive.
Gates shall be installed and maintained as reasonably practical at the south
terminus of the Resort road and Vandevert Road; at the interior location set
forth on the Site Plan. The gates shall be closed and operable by a key card,
vehicle transponders or other similar equipment 24 hours per day.
ii. The access road shall be designed in a manner to reduce speeds (including
one or more of the following features: sinuous alignment, bulb outs, traffic
calming features) and shall be posted with a 20 MPH limit and identified as a
wildlife corridor.
iii. Educational signage shall be placed in an appropriate location at the boundary
of the WMT identifying the area as such, and explaining the need not to disturb
habitat or species within the WMT.
4. Structures. No structures other than the access road, gates and proposed walking trails as
shown on the Site Plan shall be permitted in the WMT.
5. Management in the WMT. Consistent with the wildlife management report prepared for the
Resort, the following management measures shall be implemented:
a. Rock Outcrops. Rock outcrops and piles provide unique habitat qualities and serve
as a keystone habitat niche within the WMT. Accordingly, any management activities
should avoid such outcrops and the surrounding vegetation;
b. Snags. Standing snags provide important habitat niches, especially for avian and
small mammal species. Accordingly, all existing wildlife snags should be retained,
unless they are determined to pose a wildfire hazard.
6. Other Habitat Conservation Measures. Vegetation shall be monitored, and weeds and non-
native plants will be controlled and eradicated when possible;
a. Brush patches will be maintained in a mosaic pattern to provide various stages of
growth so that both cover and forage are provided. Vegetation management
activities performed in the WMT shall be performed in the fall or spring (outside of
deer winter season) when areas are accessible and not under fire restrictions, except
that any mowing is not to occur in the spring when there is bird nesting;
b. Ponderosa pine trees (dead and living) will be preserved where possible;
c. Downed logs will be retained for their wildlife value where possible;
247 -15 -000464 -CU, 247-18-000009-A Page 30 of 31
d. Firewood cutting or vegetation alteration beyond that prescribed as management for
increased habitat value or as management for wildfire risk, will not be permitted;
e. Prior to Final Plat Approval, nest boxes will be installed. Said nest boxes shall be
maintained to benefit native bird species;
f. Prior to Final Plat Approval, bat boxes will be installed on trees to benefit native bat
species;
g. No new fences are proposed to be included in the WMT;
h. Livestock will not kept or allowed on the property;
The proposed development will prohibit the recreational use of off-road motor
vehicles within the WMT. Motorized vehicle use in the WMT will only be allowed for
management or emergency fire vehicle access;
j. The lots that are directly adjacent to the WMT will have 25 -foot setback requirements
to protect the wildlife value of the area;
k. A program for proper garbage storage and disposal will be instituted for all resort
residences and facilities. The program will be designed to reduce the availability of
human -generated food resources to predators and corvids (crows, ravens, and Jays)
known to predate other wildlife species;
An educational program for local residents will be initiated regarding the native
wildlife populations using the WMT and the need to avoid disturbance of species
within the WMT. Educational materials will include newsletters, flyers, signage on
trails, or other similar outreach tools;
m. No fireworks of any type will be allowed;
n. No use of drones will be allowed; and
o. No hunting, discharge of firearms or trapping will be allowed.
DESCHUTES COUNTY PLANNING DIVISION
Aako
Written by: Anthony Raguine, Senior Planner
Reviewed by: Peter Gutowsky, Planning Manager
Exhibits:
A. Annexation II Map
B. Hearings Officer decision on 247 -15 -000464 -CU
C. LUBA I
D. Court of Appeals Decision
E. LUBA II
247 -15 -000464 -CU, 247-18-000009-A
Page 31 of 31
BLANK PAGE
EXHIBIT A
Annexation 11 Map
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EXHIBIT B
Hearings Officer Decision
247 -15 -000464 -CU
BLANK PAGE
DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBER:
APPLICANT:
REQUEST:
STAFF CONTACT:
HEARING DATES:
RECORD CLOSED:
247 -15 -000464 -CU
Steve Runner
Pine Forest Development, LLC
Sunriver Resort Limited Partnership
P.O. Box 3589
Sunriver, OR 97707
Conditional use permit application to expand the Caldera Springs
Destination Resort ("Resort") to include the subject property. The
annexed property will include a maximum of 395 single-family
residences, a maximum of 95 additional overnight lodging units,
recreation facilities and additional resort core amenities. As part of this
application, the applicant seeks to modify the Caldera Springs
Conceptual Master Plan and ratio of single-family residences to
overnight lodging units from 2:1 to 2.5:1.
Anthony Raguine, Senior Planner
October 27, November 24 and December 15, 2015
December 29, 2015
I. STANDARDS AND APPLICABLE CRITERIA:
Title 18 of the Deschutes County Code ("DCC")
Chapter 18.40, Forest Use Zone — F2
Chapter 18.80, Airport Safety Combining Zone — AS
Chapter 18.84, Landscape Management Combining Zone — LM
Chapter 18.88, Wildlife Area Combining Zone — WA
Chapter 18.108, Urban Unincorporated Community Zone — Sunriver
Chapter 18.113, Destination Resorts — Destination Resort
Chapter 18.128, Conditional Use Permits
Title 22, the Deschutes County Land Use Procedures Ordinance
Title 23, The Deschutes County Comprehensive Plan
Chapter 23.84, Destination Resorts
Chapter 23.76, Energy
Oregon Revised Statute (ORS) Chapter 197.435 to 197.467
II. FINDINGS OF FACT:
A. Location: The subject property has an assigned address of 17800 Vandevert Road,
Bend, and is identified as tax lot 103 on Assessor map 20-11.
247 -15 -000464 -CU - Caldera Springs
1
B. Zoning and Plan Designation: The subject property is zoned Forest Use Zone ("F2").
It is within the Airport Safety Combining Zone ("AS") associated with the Sunriver Airport;
the Landscape Management Combining Zone ("LM") associated with Highway 97,
Vandevert Road and South Century Drive; and the Wildlife Area Combining Zone ("WA")
associated with deer migration range. The subject property is also mapped within the
Destination Resort ("DR") Combining Zone for Deschutes County.
C. Site Description: The irregularly shaped 614 -acre property is undeveloped with a
generally level topography. Vegetation on-site consists of a dense cover of lodgepole
and ponderosa pine trees. According to the applicant, the 60- to 80 -year-old trees are of
various sizes arranged in small groups and dense thickets, with about 25 percent of the
groups consisting purely of lodgepole pine. Understory vegetation is bitterbrush,
bunchgrasses, and typical high desert vegetation. Several dirt roads and the power line
right-of-way cross the site.
The site is approximately 250 feet west of Highway 97 at its closest point in the southeastern
corner. The property has frontage on South Century Drive along its southwestern property
line, and frontage on Vandevert Road along its southern property line.
D. Proposal: The applicant is requesting conditional use permit approval to expand the
Resort and include the subject property. The annexed property will include a maximum
of 395 single-family residences, a maximum of 95 additional overnight lodging units,
recreation facilities and additional resort core amenities. As part of this application, the
applicant seeks to modify the Caldera Springs Conceptual Master Plan and ratio of
single-family residences to overnight lodging units from 2:1 to 2.5:1. Additionally, the
applicant proposes a new access to the Resort from Vandevert Road.
The proposal includes two options detailed in the applicant's Exhibit A and A-1. Option 1
includes two areas of visitor -oriented accommodations ("VOA")/cluster housing, one in
the eastern portion of the annexation property and one at the south end of the property.
Option 2 also includes two areas of VOA/cluster housing, one at the north end of the
annexation property and one at the south end of the property.
The application includes a possible phasing plan, detailed on Exhibit A-2 and A-3, for
each Option discussed above. Each plan includes five to nine phases and an
anticipated 40 to 90 lots per phase. The exhibits indicate development of a phase every
one to four years as the real estate market dictates.
E. Surrounding Land Uses and Zoning: The site is bounded to the north by the Sunriver
Business Park on land zoned Urban Unincorporated Community Zone Sunriver —
Business Park District ("SUBP"), and by multi -family residential uses on land zoned
Urban Unincorporated Community Zone Sunriver — Multiple Family Residential District
("SURM"). To the east is the Burlington Northern Railroad. Beyond the railroad tracks
are vast tracks of undeveloped US Forest Service lands that are zoned Forest Use
("F1"), and Highway 97. To the south, across Vandevert Road are two undeveloped,
privately owned, properties zoned F2, and a residential subdivision zoned Rural
Residential ("RR10"). Along much of the property's western boundary is the Caldera
Springs Destination Resort. As noted above, the property's southwestern boundary is
formed by South Century Drive. Across South Century Drive are residential uses on
lands zoned F2, including the Crosswater development. To the northwest are residential
247 -15 -000464 -CU - Caldera Springs 2
uses in the Sunriver Resort on lands zoned Unincorporated Community Zone Sunriver —
Single Family Residential District ("SURS") and SURM.
F. Land Use History: The County approvals associated with the existing Resort are
summarized below.
Land UseApprov•al
Description
CU -05-07
Conceptual Master Plan ("CMP")
M-05-01
Final Master Plan ("FMP")
TP -05-961
Tentative Plan for up to 320 single-family residential homesites,
various future development tracts, rights-of-way, and easements for
infrastructure
SP -05-53
Site Plan for the Resort's first phase including 150 separate rentable
units for visitor lodging; eating establishments for at least 100
persons; meeting rooms for at least 100 persons, nine -hole short golf
course; three practice golf holes; practice putting green; lake; and
clubhouse which will incorporate the eating establishments and
meeting rooms
SP -06-14
Site Plan for the Resort amenities including fitness/pool center, pool,
basketball court, play area, tennis courts, lake expansion, relocated
parking area, lawn sports area, and pavilion
FPA -06-12
Final Plat approval for TP -05-961
SP -06 -52/V -06 -Site
16/MA-06-23
Plan for overnight lodging units (OLUs) within Tracts 2 and 3;
Minor Variance to reduce the parking area setback from 250 feet to
225 feet
SP -06-55
Site Plan for a pump station associated with the Resort water feature
SP -06-61
Site Plan for OLUs in Tract 1, roadway and driveway areas, and
pedestrian bike paths within Tracts 1, 2 and 3 of the core Resort
area; OLUs provided as lock -off units; A total of 160 OLUs will be
provided within Tracts 1, 2 and 3; This Site Plan approval is intended
to amend and supplement SP -05-53
MC -07-2
Modification of the Dimensional Standards approved under the CMP
and FMP, to include dimensional standards for the Overnight
Lodging Cottage Lots
247 -15 -000464 -CU - Caldera Springs
3
TP -07-988
Tentative Plan to divide Tracts 1, 2 and 3 into 45 lots, and to allow a
Zero Lot Subdivision; Tract 1 includes 22 lots, Tract 2 includes 12
lots, and Tract 3 includes 11 lots; This division will allow the
construction of the overnight lodging cottages approved under SP -
06 -52 and SP -06-61
TU -07-3
Temporary use permit to construct a model cottage in Tract 1
SP -07-25
Site plan approval for the OLUs approved under SP -06-52 and SP -
06 -61 to address the lot configurations approved under TP -07-988
MP -08-88
Minor Partition to divide Tract FA into three parcels; Parcel 1
includes a portion of the golf course; Parcel 2 includes the pavilion,
fitness center, lakes and a portion of the parking lot and open
spaces; Parcel 3 includes the lakehouse facility and a portion of the
parking lot in the core area of the Resort
MP -08-89
Minor Partition to divide Tract A in the Phase 1 subdivision into two
parcels; Parcel 1 includes a portion of the golf course; Parcel 2
includes the open spaces
DR -13-23
Declaratory Ruling to determine if the site plan approval under SP -
07 -25, authorizing OLUs, roads and bike paths, has been initiated
MC -13-4
Modification of the CMP and FMP to change the required availability
of OLUs from 45 weeks to 38 weeks
MC -13-5
Modification of SP -07-25 to change the required availability of OLUs
from 45 weeks to 38 weeks
The existing Caldera Springs Destination Resort is approximately 390 acres in size and
includes 160 overnight lodging units, 320 single family residential Tots, and recreation
facilities including a pool, clubhouse, golf course and trails.
G. Public Agency Comments:
Deschutes County Building Division. The Deschutes County Building Safety Division's
code required Access, Egress, Setbacks, Fire & Life Safety, Fire Fighting Water
Supplies, etc. will be specifically addressed during the plan review process for any
proposed structures and occupancies. All Building Code required items will be
addressed when a specific structure, occupancy, and type of construction is proposed
and submitted for plan review.
Deschutes County Road Department. I have reviewed the materials for the above
application and have the following comments:
247 -15 -000464 -CU - Caldera Springs 4
1 Vandevert Road is classified as a County collector with an ADT of 2240. Existing
width is 27.5 feet so when the development uses Vandevert for access, it will
have to be widened to 15 feet from centerline along the frontage of the property.
2. The Traffic Impact Analysis did not discuss any required improvements to the
intersection of the new access with Vandevert Road. I am thinking that most of
the traffic will be using the Highway 97/South Century Interchange to access this
development but I am curious as to what amount of traffic is projected to use the
access off of Vandevert Road. Would this intersection be analyzed when the
phasing of the resort required its connection?
Planning Division Senior Transportation Planner. The following comments on the
revised TIA were submitted on October 10, 2015:
1. The new approach apron to Vandevert must be paved to reduce the amount of
gravel and debris being tracked onto Vandevert from the site.
2. The correct citation to Deschutes County's traffic study requirements is DCC
18.116.310; the traffic requirements were shifted there from DCC 17.16.115 in
2014.
The following comments regarding safety concerns raised by the public were submitted
on October 26, 2015:
1. While there may be longer delays for Crosswater residents to enter onto South
Century Drive, the traffic study indicates the South Century Drive intersection that
provides access to Crosswater on the west leg and Caldera Springs on the east
leg meets the Deschutes County mobility standard. In other words, a minor
potential degradation in traffic operations is insufficient to require major
improvements. Additionally, there is adequate capacity on South Century Drive
itself; therefore no center turn lanes nor acceleration lanes nor additional travel
lanes are required.
2. Currently there is no programmed construction project from ODOT to introduce
turn restrictions at 97Nandevert. If ODOT did program a construction project to
make Vandevert/97 a right -in, right -out only (RIRO) intersection, the traffic
impacts would be analyzed at that time. The County Transportation System Plan
("TSP") on page 148 does anticipate a future closure of Vandevert Road from US
97. If ODOT requests the complete closure of Vandevert at 97, a public hearing
is required before the Board of County Commissioners and people could then
state their case. I would assume ODOT would provide some high-level analysis
of the resulting traffic effects on South Century if Vandevert were closed given
traffic going to or coming from the north would likely divert to the South
Century/US 97 interchange. The County's 2012 TSP at Table 5.3.T1 (County
Road and Highway Projects) does list a future roundabout at Spring River/South
Century Drive as a medium priority (construction planned in 6-10 years or 2018-
2022 assuming adequate funding). The TSP also has a roundabout at
Huntington/South Century as a low priority (construction planned for 11-20 years
or 2023-2032, assuming adequate funding).
247 -15 -000464 -CU - Caldera Springs 5
3. The intersection of South Century Drive/Caldera Springs-Crosswater entrances
meets the Deschutes County mobility standards based on the accepted TIA;
therefore a roundabout at the South Century Drive/Caldera Springs-Crosswater
entrance is not warranted.
4. DCC 18.116.310(G) sets the requirements for what a TIA must consider.
Admittedly, the requirements through 18.116.310 are oriented toward motor
vehicles. However, South Century Drive is a County collector and has adequate
shoulders. The County in Deschutes County Code 17.48 (Design and
Construction Specifications) and Table A requires paved shoulders ranging in
width from 3' to 5'. The shoulders on South Century comply. An increase in
traffic from Caldera Springs will not change the dimensions of those shoulders.
The most recent (2011) figures for South Century Drive indicates the average
daily traffic (ADT) between Spring River Road and Huntington road ranges from
2,863 to 3,848 ADT. The County TSP on pages 80-81 discusses level of service
(LOS) standards as they relate to volumes for road segments. The County
standard for a two-lane rural road is LOS D, which means 5,701-9,600 ADT.
Therefore, based on the combination of shoulder width, current traffic volumes,
and future traffic volumes from the resort, South Century Drive will continue to
meet performance standards and provide sufficient shoulders for cyclists to ride.
5. The Bend -La Pine School District locates bus stops. Buses come with beacons
and stop paddies and motorists are required to yield to school buses. Schools
typically end and deliver their students before the p.m. peak hour traffic begins.
Additionally, traffic exiting the two resorts is controlled by stop signs and traffic
entering the two resorts must slow to turn into the entrances.
6. The TIA indicates even with development traffic, the intersection of South
Century/and the entrances to Crosswater and Caldera Springs will meet the
County's mobility standard. Additionally, even with the increased traffic there will
still be sufficient gaps in northbound and southbound traffic on South Century
Drive for pedestrians, bicyclists, and golf carts to cross the roadway.
7. Large events require approval either from the County via .an Outdoor Mass
Gathering permit or permits from the County's Risk Management Unit. In either
case, the event must address traffic via a management plan, which typically
includes the use of state -certified flaggers to direct traffic. If there were a Targe
event, the traffic from the Caldera Springs expansion would be practically
indiscernible from the volumes related to the event(s).
8. Staff refers to the Oct. 15, 2015, Technical Memo from Kittelson & Associates
which concentrates on the site's access to Vandevert Road and the Vandevert
Road/97 intersection.
Oregon Department of Fish and Wildlife ("ODFW"). ODFW submitted the following
comments via email on October 12, 2015:
ODFW has reviewed the Wildlife Habitat Evaluation Procedure and Mitigation Plan. The
mitigation plan includes modifications to the resort, including an east -west wildlife travel
corridor along the southern boundary of the property. The modifications are in
agreement with ODFW recommendations to maintain wildlife movement through the
247 -15 -000464 -CU - Caldera Springs 6
area. ODFW further recommends that open space be maintained to the extent possible
throughout the development to promote wildlife passage.
The mitigation plan also states that "vegetation would be managed within the corridor to
maintain native plant species that will continue to provide both cover and forage for
wildlife moving through the area." ODFW recommends that as much native vegetation
as possible be established throughout the project site and that nonnative invasive plants
be controlled.
Oregon Department of Transportation ("ODOT"). ODOT requested the original TIA be
revised to reflect the new access point to Vandevert Rd.
Additional Comments
ODOT is satisfied that the project will not adversely affect the operation of the US 97
intersection at Vandevert with the proposed mitigation. The proposed mitigation is to
limit the Vandevert access to construction traffic only or to restrict outbound left -turn
movements until such time as the Vandevert connection to US 97 is closed or restricted.
Restricting outbound left -turns would be less effective and ODOT would request the
opportunity to review the turn -restriction design prior to it being permitted.
In response to staff's question regarding the potential for mitigation in the form of a
median on Highway 97, as identified on page 15 of the amended TIA, ODOT provided
the following response
ODOT is open to discussions to close or restrict access to the US 97Nandevert
intersection, but the timing of that improvement is uncertain.
La Pine Rural Fire Protection District. Thank you for the opportunity to comment on the
conditional use permit application 247 -15 -000464 -CU to expand the Caldera Springs
resort. The developer has been in contact with the fire district from the very initial
planning phases and has worked to bring this property within the fire district. The
property now has fire protection from La Pine Rural Fire Protection District and additional
summer forestry patrol from the Oregon Department of Forestry. The developer to date
has shown adequate planning for access (roads), water supply (fire hydrants), suitable
firewise building and fire resistive landscaping and other issues pertaining new
developments and the fire codes as well as an excellent performance history with the
existing property development. The district thus supports this new development and has
no issues with the conditional use permit and the requested modification to the
developments master plan per single family and overnight ratios from 2:1 to 2.5:1.
The following agencies did not respond or had no comments. Deschutes County
Assessor, Deschutes County Environmental Soils Division, Watermaster — District 11,
Bend -La Pine School District, Oregon Department of Environmental Quality, Oregon
Department of Forestry, Oregon Department of Aviation — Project and Planning Division,
Deschutes National Forest, Sunriver Utilities, Deschutes County Forester, State Fire
Marshal, and U.S. Fish and Wildlife Service.
H. Public Comments: As of the date of the staff report, a number of emails and letters,
and a petition, were received indicating opposition to the project. Staff identified the
following general opposition issues:
247 -15 -000464 -CU - Caldera Springs 7
1. Greater difficulty merging onto South Century Drive by residents of the
Crosswater development'
2. If ODOT limits access from Highway 97 onto Vandevert Road, traffic onto South
Century Drive will increase exacerbating congestion caused by the proposal
3. Consider roundabout at the entrance to Crosswater/Caldera Springs on South
Century Drive
4. Safety concern for cyclists along South Century Drive due to increased traffic
from the proposal
5. Carrying capacity of utilities and services
6. This annexation should be viewed as a standalone destination resort
7. Increase in rentable units with this proposal creates too much competition for
other owners who rent dwelling units in the area
8. Increased traffic creates concern for students because bus stops are located at
the Crosswater and Caldera Springs entrances
9. Increased traffic creates concern for pedestrians, bicycles, and golf carts moving
between Crosswater and Caldera Springs, and along South Century Drive
10. Increased traffic exacerbates congestion issue during special events that draw
large crowds to Crosswater
11. Increased traffic exacerbates congestion and safety issue at the Vandevert
Road/Highway 97 intersection
12. Impacts to livability within the Powder Village Complex due to location of
secondary access road along the northern boundary of the project site
Additional Comments
Comments submitted since October 22, 2015 public hearing
13. Concern regarding deer and elk casualties due to vehicular strikes
14. Concern regarding dedication of land near Harper Bridge for public river access
15. Access to existing Caldera Springs from South Century Drive is inadequate to
handle increase in traffic from expansion
16. The proposal should be rejected for the same reasons the Governor's Natural
Resource Office rejected a proposal to create a new destination resort on the
subject property
1 The sole access into Crosswater is directly opposite the existing Resort access.
247 -15 -000464 -CU - Caldera Springs 8
17. Concern regarding the cost to replace the Sunriver Sewage Treatment Plant due
to increased use
18. Concern regarding increasing nitrite concentrations due to unsewered lots
19. Appropriateness of clustered communities between Bend and La Pine
20. Expansion will provide positive impact to tourism for the region
Notice: The applicant submitted a Land Use Sign Affidavit indicating the land use action
sign was posted on the property on September 3, 2015. A notice of the applications was
mailed on September 11, 2015. Comments from the public and from public agencies
are detailed above. Notice of the public hearing was published in The Bulletin on
October 4, 2015, and mailed to parties of record on October 5, 2015.
J. Lot of Record: The applicant made the following argument on compliance with the
County's lot of record requirement:
Prior to 2006 the subject property was owned by the United States Government, acting
by and through the United States Department of Agriculture aka, the US Forest Service.
Pursuant to the Bend Pine Nursery Land Conveyance Act of 2000 (P.L.106-526: 114
Stat. 2512), Congress authorized the sale of a number of isolated USFS parcels. The
subject property was one such isolated parcel (Tract C Administrative Sale; DES No.
178, Parcel A). The property was conveyed to Pine Forest Development, LLC on
November 14, 2006 pursuant to a quitclaim deed, a copy of which is attached. The deed
was recorded on November 21, 2006 (2006-77006), in the real property records of
Deschutes County.
The subject property is 617.27 acres, more or Less, in size, exceeding the 5,000 square
foot minimum. As a federally owned parcel, it was not subject to any state or county
subdivision requirements. The subject lot of record was created by the deed referenced
above and was recorded in the real property records of Deschutes County. Only one
legal description was provided, consequently, the subject property contains only one
legal lot of record.
Staff noted that a Hearings Officer and the Board of County Commissioners made a
finding that the subject property is a legal lot of record for the rezone approval of the
property.2
COLW argued that the subject property is not a lot of record for two reasons. First, that
because the parcel was federally owned and transferred to the applicant, it did not meet
the County subdivision or partition rules. COLW argued that this position is supported by
a prior Hearings Officer decision in Thompson. Second, even though a prior zone
change approved by the BOCC found the parcel to be a lot of record, that decision is not
determinative.
The Hearings Officer agrees with the applicant. As for the BOCC's prior recognition of
the lot, no party argues that the BOCC somehow got that decision wrong in 2006 when
2 Reference land use file number ZC-06-3.
247 -15 -000464 -CU - Caldera Springs 9
the property was rezoned. Of course, the time to appeal that decision is long past.
Even if Thompson militated for a different outcome, which it does not as explained
below, the Hearings Officer considers that prior decision to be the BOCC's interpretation
as to the application of the County's lot of record criteria to the subject property, and
absent any colorable argument that the BOCC erred in that decision, the Hearings
Officer will be adhere to it. As for the application of Thompson, I agree with the applicant
that the facts in that case were significantly different than those at issue here. First,
while Thompson sought to recognize a lot that had been transferred from the federal
government, the applicant's primary argument was that the federal process that led to
the transfer preempted a!! other local regulation. Here, the applicant does not so argue,
and the transfer appears to be a simple and straight forward quit claim deed conveyance
which fits at least one of the County's lot of record criteria. Second, the applicant in
Thompson sought to have a substandard size lot recognized for the F-1 zone — in order
to have the lot qualify for a lot of record forest dwelling under ORS 215.700. Again, that
is not the case with this application as there is a single lot of approximately 617 acres,
and the applicant is relying on the existing DR designation as the basis for the proposal.
For these reasons, the Hearings Officer finds that the subject property is a legal lot of
record under DCC 18.04.030(A)(3).
K. PROCEDURAL HISTORY: A public hearing was held on October 27, 2015.
The Hearings Officer provided the statements required by ORS 197.763. There
were no ex parte contacts to report, and no party challenged the Hearings
Officer's fitness to conduct the hearing.
Staff provided a PowerPoint outlining the proposal. Several transportation issues
were discussed including an explanation of the traffic counts near Vandevert
Road and reasons why the prior counts and seasonal factors were still current
enough to provide reliable evidence.
The applicant's attorney, Steve Hultberg, provided a short history of the existing
resort and outlined the proposed expansion. He explained that the proposal was
not a standalone resort, but an expansion of the existing resort. The proposal
would encompass about 395 single family residences which is approximately
43% of what would otherwise be permitted. A maximum of 95 new overnight
units were also proposed. He noted that the wildlife plan for the expansion had
received a favorable review from the Oregon Department of Fish and Wildlife.
However, more work was needed on the proposal's wildfire contingency plan.
Sewer and water would rely on existing systems, although the applicant
acknowledged that service expansion might be needed for the new portion of the
resort and, that if so, the resort would pay for its proportionate share of that cost.
Wendy Wente, the applicant's wildlife biologist, explained a 125 acre set aside
built into the proposal. The east — west wildlife corridor would be preserved, she
said, primarily to benefit mule deer. With the open plan of the development and
preservation of existing native plants, she concluded that the proposal met the
"no net loss" of habitat standard required by the DCC.
Matt Kittelson added some transportation information addressing the interchange
at Hwy 97 and S. Century drive, which would serve the new development. Even
with the additional trips, he concluded that the intersection would operate at
247 -15 -000464 -CU - Caldera Springs 10
County required service levels. He acknowledged that the Vandevert/Hwy 97
intersection is planned to be closed sometime in the future and the County's
Transportation System Plan includes that closure. However, ODOT is the
deciding party on when the closure might occur, and no date has yet been set for
the possible closure.
Several individuals from the Sunriver Owners Association ("SROA") testified as
neutral parties. They raised concerns about the capacity of the current water
system to adequately supply water to the expanded resort. Similarly, they voiced
concern about the capacity of the sewer system. Increased traffic impacts on
roads maintained by SROA were also of concern. There was also significant
comment on the potential impact on nearby public recreational facilities. In
particular, SROA members asked for more analysis and action on the Harper
Bridge boat access to the Deschutes River.
Mark Murray speaking for the Sunriver Service District asked whether notice of
the proposal had been provided to the Deschutes County Sheriff, La Pine Fire
District, and Sunriver Police. He was also concerned about the seasonal
adjustment for the traffic counts taken by the applicant. Similar concerns about
the traffic counts were raised by Wade Watson, who noted that during the month
of April when the counts were taken, many seasonal residents were gone, and
the golf course was still closed.
Several individuals raised concerns about the resident mule deer and their ability
to migrate and move safely across Hwy 97.
Carol Macbeth, representing Central Oregon Land Watch ("COLW"), provided
written 1 VOI 11111e11W 1111 opposition 1 w the proposal and summarized some of them al
the hearing. She argued that state law does not permit "expansion" of
destination resorts on resource designated lands. She said the expansion
cannot meet the requirements of Statewide Planning Goal 8 for destinations
resorts. She stated that any new development will need an exception to Goal 8.
As for the overnight accommodations required under state law for destination
resorts, she stated that only 38 overnight rentals appear on the resort's website
when 152 are required. As for wildlife habitat, she argued that new
interpretations of the requirements for destination resorts would require 365
acres of habitat mitigation associated with the migration corridor. She also noted
that the Vandevert/Hwy 97 intersection has had 30 accidents in the past 10
years.
Pam Burley argued that the overnight lodging units were insufficient in number
and the additional proposal would not be able to hit the required ratio of overnight
rental to private residential units. She also noted that the analysis on water
quantity was insufficient due to current demands and the golf course.
At the end of the hearing the parties agreed to a continued hearing. The
Hearings Officer set the continued hearing for November 24, 2015 at 6:30 p.m.
The record was left open during this period. On November 24, 2015, severe
snowy weather prevented the public from attending the hearing, and the
applicant agreed to another continuance to December 15, 2015.
247 -15 -000464 -CU - Caldera Springs 11
At the December 15, 2015 hearing, the Hearings Officer again provided the
statements required by ORS 197.763. There were no ex parte contacts to report,
and again no party challenged the Hearings Officer's fitness to conduct the
hearing.
Staff presented an amended Staff Report that accommodated additional
evidence submitted after the October 27, 2015 hearing. The applicant provided
an overview of additional information submitted into the record. The information
included the following:
• Evidence related to the question of whether the subject property
constitutes a "lot of record."
• Information showing that vegetated berms would be constructed on the
subject property along S. Century Drive.
• Applicant's amended wildlife/wildfire plans which attempted to coordinate
the two.
• A refined TIA with the requested seasonal adjustment. Included a memo
from Peter Russell confirming the adjustment still allowed the
development to meet the County's level of service standards.
This information was all presented in a written submission dated November 10,
2015.
Carol Macbeth provided a written comment dated December 15, 2015 and
provided opposition testimony on behalf of COLW. She discussed the following
issues at the hearing:
• Reiterated argument that "expansions" of existing destination resorts are
not allowed under Goal 8.
• She questioned whether the proposal could meet the minimum
investment threshold for destination resorts under state law.
• The existing resort is not meeting the overnight lodging requirements —
only 38 houses and 131 unique rooms. The expansion would perpetuate
that failure.
• The wildfire risk is too high, and there is not an evacuation plan or route
provided.
• DCC 18.113.120 requires that the mitigation for incursion into the mule
deer migration habitat include a conservation easement to protect the
previously identified Goal 5 resource.
• She continued to argue that the subject property does not qualify as a lot
of record.
Ron Buris again raised the concern about recreational access at Harper Bridge.
He argued that the prior destination resort approval included a condition requiring
improvements at the boat access and that condition still had not been met.
247 -15 -000464 -CU - Caldera Springs 12
Staff noted that SROA had submitted an e-mail and attached document into the
record just prior to the hearing.
At the end of the hearing the Hearings Officer considered requests to leave the
record open.
The Hearings Officer set an open record schedule as follows: 1) argument and
evidence from any party could be submitted until December 22, 2015 at 5:00
p.m. — limited to a response to COLW's December 15, 2015 submission, and
SROA's December 15, 2015 email and attached argument, 2) the applicant's
final argument was due December 29, 2015 by 5:00 p.m.
On December 22, 2015, the applicant submitted a letter and exhibits as rebuttal
testimony to the December 15, 2015 submissions by COLW and SROA. In that
letter the applicant requests that the Hearings Officer exclude from the record
SROA's exhibits or attachments to their December 15, 2015 submission because
it was emailed during the hearing and the attachments were hand delivered on
December 16, 2015. The applicant argues that these documents should be
rejected because the record was closed on December 15, 2015.
The Hearings Officer finds that SROA's December 15, 2015 email and
subsequent hand delivery of attachments on December 16, 2015 was sufficient
to include those items in the record. There is no prejudice to any party by
retaining them in the record. All parties were on notice during the hearing that
SROA was submitting documents into the record. The parties were on notice
and had time to respond to those documents by December 22, 2015 as provided
by the Hearings Officer's instructions.
On December 22, 2015, COLW also submitted a letter that purports to comply
with the Hearings Officer's instructions for the open record period. On December
23, 2015, the applicant objected to the submission on the basis that the letter
reiterated prior arguments and statements made during the December 15, 2015
hearing. Upon reviewing the contents of COLW's December 22, 2015 letter, the
Hearings Officer agrees with the applicant that it should not be included in the
record. Based on the Hearings Officer's instructions at the December 15, 2105
hearing, rebuttal testimony would be allowed directed at COLW's December 15,
2015 letter and SROA's December 15, 2015 submission. As such, COLW would
not need to respond to its own December 15, 2015 letter — thereby leaving only
the SROA letter as a valid document to respond to. The December 22, 2015
COLW letter does not respond to SROA's arguments. COLW reiterates prior
arguments and augments rather than providing rebuttal testimony. As such, the
December 22, 2015 letter does not comply with the Hearings Officer's
instructions, is not part of the record, and will not be considered in this decision.
The applicant submitted a final argument on December 29, 2015 in compliance
with the deadline set by the Hearings Officer. On the same day, the applicant
submitted a precautionary response to COLW's December 22, 2105 letter. Since
the Hearings Officer will not consider COLW's December 22, 2015 letter, it will
not be necessary to include in the record or review the applicant's December 29,
2015 response.
247 -15 -000464 -CU - Caldera Springs 13
III. CONCLUSIONS OF LAW:
Section 18.113.080. Procedure for Modification of a Conceptual Master Plan.
Any substantial change, as determined by the Planning Director, proposed to an
approved CMP shall be reviewed in the same manner as the original CMP. An
insubstantial change may be approved by the Planning Director. Substantial change to
an approved CMP, as used in DCC 18.113.080, means an alteration in the type, scale,
location, phasing or other characteristic of the proposed development such that findings
of fact on which the original approval was based would be materially affected.
FINDING: Staff found, and the Hearings Officer agrees, the proposed annexation is a
substantial change which should be reviewed in the same manner as the original CMP. For this
reason, all criteria which apply to destination resorts apply to the subject property and the
applicant's proposal.
Title 18, Deschutes County Zoning Code
A. Chapter 18.40. Forest Use Zone
The following uses and their accessory uses may be allowed in the Forest Use
Zone, subject to applicable provisions of the Comprehensive Plan, DCC 18.40.040
and other applicable sections of DCC Title 18:
D. Destination Resorts where mapped in a DR zone and subject only to the
provisions of DCC 18.113 and other applicable provisions of DCC Title 18
and the Comprehensive Plan not contained in DCC 18.40.
FINDING: The applicant has applied for a conditional use permit to expand the existing
Caldera Springs Destination Resort. The subject property is mapped for destination
resorts on the Deschutes County destination resort map. Significantly, none of the
participating parties argue that the subject property is not covered by the DR zone. The
uses allowed with the DR Zone are listed under DCC 18.113 and are not regulated by
the conditional use criteria set out in the F2 Zone provisions. Likewise, the setbacks and
other development standards for development within a destination resort are not
regulated under DCC 18.40, but are regulated under DCC. 18.113. The applicable
provisions of Title 18 and the Comprehensive Plan are addressed below.
B. Chapter 18.80. Airport Safety Combining Zone — AS
1. Section 18.80.044. Land Use Compatibility.
Applications for land use or building permits for properties within the
boundaries of this overlay zone shall comply with the requirements of DCC
18.80 as provided herein. When compatibility issues arise, the Planning
Director or Hearings Body is required to take actions that eliminate or
minimize the incompatibility by choosing the most compatible location or
design for the boundary or use. Where compatibility issues persist,
despite actions or conditions intended to eliminate or minimize the
incompatibility, the Planning Director or Hearings Body may disallow the
use or expansion, except where the action results in loss of current
operational levels and/or the ability of the airport to grow to meet future
247 -15 -000464 -CU - Caldera Springs 14
community needs. Reasonable conditions to protect the public safety may
be imposed by the Planning Director or Hearings Body.
FINDING: The northern half of the annexation property lies within the AS Combining
Zone associated with the Sunriver Airport. The applicable provisions of DCC 18.80 are
addressed below.
A. Noise. Within airport noise impact boundaries, land uses shall be
established consistent with the levels identified in OAR 660, Division
13, Exhibit 5 (Table 2 of DCC 18.80). Applicants for any subdivision
or partition approval or other land use approval or building permit
affecting land within airport noise impact boundaries, shall sign and
record in the Deschutes County Book of Records, a Declaration of
Anticipated Noise declaring that the applicant and his successors
will not now, or in the future complain about the allowed airport
activities at the adjacent airport. In areas where the noise level is
anticipated to be at or above 55 Ldn, prior to issuance of a building
permit for construction of a noise sensitive land use (real property
normally used for sleeping or as a school, church, hospital, public
library or similar use), the permit applicant shall be required to
demonstrate that a noise abatement strategy will be incorporated
into the building design that will achieve an indoor noise level equal
to or less than 55 Ldn. [NOTE: FAA Order 5100.38A, Chapter 7
provides that interior noise levels should not exceed 45 decibels in
all habitable zones.]
FINDING: The subject property is located outside of the Sunriver Airport noise impact
boundaries. This criterion does not apply.
B. Outdoor lighting. No new or expanded industrial, commercial or
recreational use shall project lighting directly onto an existing
runway or taxiway or into existing airport approach surfaces except
where necessary for safe and convenient air travel. Lighting for
these uses shall incorporate shielding in their designs to reflect
Tight away from airport approach surfaces. No use shall imitate
airport lighting or impede the ability of pilots to distinguish between
airport lighting and other lighting.
FINDING: The applicant does not propose any industrial uses. Commercial and
recreational uses are included in the project. The property is located over 3,000 feet
from the Sunriver Airport runway, taxiway, and approach surfaces. The applicant agrees
that lighting for the project will comply with County lighting ordinances and, therefore, will
be shielded and directed in conformance with standards under DCC 18.80.044(8). A
condition of approval for commercial and recreational uses will ensure compliance with
this criterion.
C. Glare. No glare producing material, including but not limited to
unpainted metal or reflective glass, shall be used on the exterior of
structures located within an approach surface or on nearby lands
where glare could impede a pilot's vision.
FINDING: The subject property is over 3,000 feet from the Sunriver Airport approach
surfaces. Moreover, the applicant indicates that no glare producing materials will be
247 -15 -000464 -CU - Caldera Springs 15
used on structures where glare could impede a pilot's vision. No evidence has been
provided that undermines this statement. This criterion is met with a condition of
approval.
D. Industrial emissions. No new industrial, mining or similar use, or
expansion of an existing industrial, mining or similar use, shall, as
part of its regular operations, cause emissions of smoke, dust or
steam that could obscure visibility within airport approach surfaces,
except upon demonstration, supported by substantial evidence, that
mitigation measures imposed as approval conditions will reduce the
potential for safety risk or incompatibility with airport operations to
an insignificant level. The review authority shall impose such
conditions as necessary to ensure that the use does not obscure
visibility.
FINDING: No industrial operations are proposed. This criterion does not apply.
E. Communications Facilities and Electrical Interference. No use shall
cause or create electrical interference with navigational signals or
radio communications between an airport and aircraft. Proposals
for the location of new or expanded radio, radiotelephone, and
television transmission facilities and electrical transmission lines
within this overlay zone shall be coordinated with the Department of
Aviation and the FAA prior to approval. Approval of cellular and
other telephone or radio communication towers on leased property
located within airport imaginary surfaces shall be conditioned to
require their removal within 90 days following the expiration of the
lease agreement. A bond or other security shall be required to
ensure this result.
FINDING: No new or expanded radio, radiotelephone, television transmission facilities
or electrical transmission lines are proposed. This criterion does not apply.
F. Limitations and Restrictions on Allowed Uses in the RPZ, Approach
Surface, and Airport Direct and Secondary Impact Areas.
For the Redmond, Bend, Sunriver, and Sisters airports, the land
uses identified in DCC 18.80 Table 1, and their accessory uses, are
permitted, permitted under limited circumstances, or prohibited in
the manner therein described. In the event of conflict with the
underlying zone, the more restrictive provisions shall control. As
used in DCC 18.80.044, a limited use means a use that is allowed
subject to special standards specific to that use.
FINDING: The subject property is not located within the Runway Protection Zone,
Approach Surface, or the Airport Direct Impact Area. However, the northern half of the
annexation property is within the Airport Secondary Impact Area3 associated with the
Sunriver Airport. Table 1 of DCC 18.80 permits all the proposed uses included in the
Resort expansion. This criterion is met.
3 DCC 18.80 022(1) provides the following definition:
"Airport Secondary Impact Area. The area between 5,000 and 10,000 feet from an airport
runway. (Redmond, Bend and Sunriver)"
247 -15 -000464 -CU - Caldera Springs 16
2. Section 18.80.054. Conditional Uses.
Uses permitted conditionally shall be those identified as conditional uses
in the underlying zone with which the AS Zone is combined, and shall be
subject to all conditions of the underlying zone except as provided in DCC
18.80.044.
FINDING: Destination resorts are permitted conditionally in the underlying F2 Zone and
are, therefore, permitted conditionally in the AS Combining Zone.
3. Section 18.80.072. Water Impoundments.
Any use or activity that would result in the establishment or expansion of a
water impoundment shall comply with the requirements of DCC 18.80.072.
(ORS 836.623(2); OAR 660-013-0080(1)(f)]
C. Process.
5. Exemptions. The requirements of DCC 18.80.072 shall not
apply to:
c. Lands owned or managed by Sunriver Resort,
Crosswater and their affiliates.
FINDING: The subject property is owned and managed by Pine Forest Development,
LLC, an affiliate of Sunriver Resort Limited Partnership. This section does not apply.
4. Section 18.80.076. Water Impoundment Notification.
A. Deschutes County shall provide notice to the Oregon Department of
Aviation when it, or its designee, receives an application for a
comprehensive plan amendment, zone change or permit as defined
in ORS 215.402 or 227.160 that, if approved, would result in a water
impoundment larger than one-quarter acre within 10,000 feet of the
Redmond, Bend, Sunriver or Sisters Airports.
B. A final determination regarding a new water impoundment described
in ORS 836.623 shall be made by local governments as provided in
ORS 836.623.
FINDING: The record shows that notice of the application was mailed to the Oregon
Department of Aviation. No comments were received in response to the notice. This
criterion is met.
C. Chapter 18.84, Landscape Management Combining Zone — LM
1. Section 18.84.020. Application of Provisions.
The provisions of DCC 18.84 shall apply to all areas within one fourth mile
of roads identified as landscape management corridors in the
Comprehensive Plan and the County Zoning Map. The provisions of DCC
18.84 shall also apply to all areas within the boundaries of a State scenic
waterway or Federal wild and scenic river corridor and all areas within 660
feet of rivers and streams otherwise identified as landscape management
247 -15 -000464 -CU - Caldera Springs 17
corridors in the comprehensive plan and the County Zoning Map. The
distance specified above shall be measured horizontally from the
centerline of designated landscape management roadways or from the
nearest ordinary high water mark of a designated landscape management
river or stream. The limitations in DCC 18.84.020 shall not unduly restrict
accepted agricultural practices.
FINDING: No areas of the property are within the boundaries of a State scenic
waterway or Federal wild and scenic river corridor. A small portion of the northwest
corner and a portion of the southwest corner of the property are located within the LM
Combining Zone associated with South Century Drive. A portion of the southeast corner
of the property is within the LM Combining Zone associated with Highway 97. And
finally, a strip of land along the southern edge of the property is within the LM Combining
Zone associated with Vandevert Road. These areas are subject to the provisions of
DCC 18.84.
Staff recommended, and the Hearings Officer agrees, that the conditions of approval
detailed below apply only to those portions of the property subject to the LM Combining
Zone.
2. Section 18.84.040. Uses Permitted Conditionally.
Uses permitted conditionally in the underlying zone with which the LM
Zone is combined shall be permitted as conditional uses in the LM Zone,
subject to the provisions in DCC 18.84.
FINDING: Destination resorts are permitted conditionally in the underlying F2 Zone, and
are, therefore, permitted conditionally in the LM Combining Zone.
3. Section 18.84.050. Use Limitations.
A. Any new structure or substantial alteration of a structure requiring a
building permit, or an agricultural structure, within an LM Zone shall
obtain site plan approval in accordance with DCC 18.84 prior to
construction. As used in DCC 18.84 substantial alteration consists
of an alteration which exceeds 25 percent in the size or 25 percent of
the assessed value of the structure.
B. Structures which are not visible from the designated roadway, river or
stream and which are assured of remaining not visible because of
vegetation, topography or existing development are exempt from the
provisions of DCC 18.84.080 (Design Review Standards) and DCC
18.84.090 (Setbacks). An applicant for site plan review in the LM Zone
shall conform with the provisions of DCC 18.84, or may submit
evidence that the proposed structure will not be visible from the
designated road, river or stream. Structures not visible from the
designated road, river or stream must meet setback standards of the
underlying zone.
FINDING: The applicant's Burden of Proof Exhibit A and A-1, shows the proposed
resort structures will be set back at least 200 feet from South Century Drive, at least 300
feet from Vandevert Road, and at least 1,100 feet from Highway 97. All structures which
247 -15 -000464 -CU - Caldera Springs 18
may be visible from South Century Drive will be buffered through a mix of berms,
setbacks and natural vegetation. Additional evidence submitted during the hearings
process confirmed that the development will not be visible from S. Century Drive.
However, no berms are proposed along Vandevert Road, and therefore, the design
review standards are discussed below. The intervening railroad berm between the resort
and Hwy 97 appears reasonably likely to screen the resort from that direction.
4. Section 18.84.080. Design review standards.
The following standards will be used to evaluate the proposed site plan:
A. Except as necessary for construction of access roads, building
pads, septic drainfields, public utility easements, parking areas, etc.,
the existing tree and shrub cover screening the development from
the designated road, river, or stream shall be retained. This
provision does not prohibit maintenance of existing lawns, removal
of dead, diseased or hazardous vegetation; the commercial harvest
of forest products in accordance with the Oregon Forest Practices
Act, or agricultural use of the land.
FINDING: The record shows that open spaces on the subject property will incorporate
natural forest lands. For the purposes of this criterion, staff found, and the Hearings
Officer agrees, the removal of vegetation in accordance with any wildfire management
plan is allowed as removal of hazardous vegetation. A condition of approval will ensure
compliance with this criterion.
B. It is recommended that new structures and additions to existing
structures be finished in muted earth tones that blend with and
reduce contrast with the surrounding vegetation and of
the building site.
FINDING: All structures which may be visible from South Century Drive, Vandevert
Road, and Highway 97 will be buffered through a mix of berms, setbacks and natural
vegetation. Pursuant to applicable design guidelines, all structures will be finished in
muted earth tones that blend with and reduce contrast with the surrounding vegetation
and landscape of the building site. All development will be consistent with existing
development in Caldera Springs and will match the overall aesthetic of the resort project.
These standards have been incorporated into the resort's Design Guidelines and
administered by the project's Architectural Review committee. A condition of approval
will ensure compliance with this criterion.
C. No large areas, including roofs, shall be finished with white, bright
or reflective materials. Roofing, including metal roofing, shall be
nonreflective and of a color which blends with the surrounding
vegetation and landscape. DCC 18.84.080 shall not apply to
attached additions to structures lawfully in existence on April 8,
1992, unless substantial improvement to the roof of the existing
structure occurs.
FINDING: The record shows that existing development at Caldera Springs does not use
reflective materials or rooftops, and new development within the annexation property will
follow the same design guidelines as apply to Caldera Springs. Large areas, including
247 -15 -000464 -CU - Caldera Springs 19
roofs will not be finished with white, bright or reflective materials. The existing resort's
Design Guidelines will apply to the subject property and will be administered by the
resort's Architectural Review committee. A condition of approval will ensure compliance
with this criterion.
D. Subject to applicable rimrock setback requirements or rimrock
setback exception standards in DCC 18.084.090(E), all structures
shall be sited to take advantage of existing vegetation, trees and
topographic features in order to reduce visual impact as seen from
the designated road, river or stream. When more than one
nonagricultural structure is to exist and no vegetation, trees or
topographic features exist which can reduce visual impact of the
subject structure, such structure shall be clustered in a manner
which reduces their visual impact as seen from the designated road,
river, or stream.
FINDING: Staff concluded that no rimrock, as defined in DCC 18.04.030, exists on-site.
Staff noted that the proposed annexation layout shown in Exhibits A and A-1 establishes
setbacks of at least 200 feet from South Century Drive, at least 300 feet from Vandevert
Road, and at least 1,100 feet from Highway 97.
Except as necessary to accomplish the goals of any wildfire management plan, staff
recommended, and the Hearings Officer agrees, that a condition of approval requiring
the retention of existing vegetation, trees and topographic features that will reduce visual
impact as seen from the above -referenced LM roads.
E. Structures shall not exceed 30 feet in height measured from the
natural grade on the side(s) facing the road, river or stream. Within
the LM Zone along a state scenic waterway or federal wild and
scenic river, the height of a structure shall include chimneys,
antennas, flag poles or other projections from the roof of the
structure. DCC 18.84.080 shall not apply to agricultural structures
located at least 50 feet from a rimrock.
FINDING: A condition of approval will ensure that structures will not exceed 30 feet in
height as measured from the natural grade facing Vandevert Road. No portion of the
property is within a state scenic waterway or federal wild and scenic river.
F. New residential or commercial driveway access to designated
landscape management roads shall be consolidated wherever
possible.
FINDING: The applicant proposes to utilize the access from the existing Resort onto
South Century Drive to the west. In addition, the applicant proposes a single new
access onto Vandevert Road to the south. This criterion is met.
G. New exterior lighting, including security lighting, shall be sited and
shielded so that it is directed downward and is not directly visible
from the designated road, river or stream.
247 -15 -000464 -CU - Caldera Springs 20
FINDING: The applicant indicates that all lighting will comply with the Deschutes County
Outdoor Lighting Ordinance. A condition of approval will ensure compliance with this
criterion.
H. The Planning Director or Hearings Body may require the
establishment of introduced landscape material to screen the
development, assure compatibility with existing vegetation, reduce
glare, direct automobile and pedestrian circulation or enhance the
overall appearance of the development while not interfering with the
views of oncoming traffic at access points, or views of mountains,
forests and other open and scenic areas as seen from the
designated landscape management road, river or stream. Use of
native species shall be encouraged. (Formerly section 18.84.080 (C))
FINDING: The burden of proof shows that landscaped berms may be installed in select
areas along South Century Drive and Vandevert Road. Staff's site visit revealed that
even if no landscaped berms were constructed, the retention of existing vegetation and
tree cover within the proposed setbacks along South Century Drive and Vandevert Road
would comply with this criterion. Staff recommended, and the Hearings Officer agrees,
that a condition of approval should require the retention of existing vegetation, trees and
topographic features which will reduce visual impact as seen from the above -referenced
LM roads, except in those locations where the applicant installs landscaped berms.
I. No signs or other forms of outdoor advertising that are visible from
a designated landscape management river or stream shall be
permitted. Property protection signs (No Trespassing, No Hunting,
etc.,) are permitted.
FINDING: The applicant states that no proposed signs or other forms of outdoor
advertising will be visible from a designated landscape management road. However,
property protection signs (No Trespassing, No Hunting, etc.,) may be visible, as
permitted. A condition of approval is warranted to ensure compliance.
J. A conservation easement as defined in DCC 18.04.280
"Conservation Easement" and specified in DCC 18.116.220 shall be
required as a condition of approval for all landscape management
site plans involving property adjacent to the Deschutes River,
Crooked River, Fall River, Little Deschutes River, Spring River,
Squaw Creek and Tumalo Creek. Conservation easements required
as a condition of landscape management site plans shall not require
public access.
FINDING: As noted previously, the subject property is not adjacent to any LM
designated waterway. This criterion does not apply.
5. Section 18.84.090. Setbacks.
A. Except as provided in DCC 18.84.090, minimum setbacks shall be
those established in the underlying zone with which the LM Zone is
combined.
247 -15 -000464 -CU - Caldera Springs 21
FINDING: As noted under DCC 18.113.060(G)(1), setbacks required by the underlying
F2 Zone do not apply to a destination resort.
B. Road Setbacks. All new structures or additions to existing
structures on Tots fronting a designated landscape management
road shall be set back at least 100 feet from the edge of the
designated road unless the Planning Director or Hearings Body
finds that:
1. A location closer to the designated road would more
effectively screen the building from the road; or protect a
distant vista; or
2. The depth of the lot makes a 100 foot setback not feasible; or
3. Buildings on both lots abutting the subject lot have front yard
setbacks of less than 100 feet and the adjacent buildings are
within 100 feet of the lot line of the subject property, and the
depth of the front yard is not Tess than the average depth of
the front yards of the abutting lots.
If the above findings are made, the Planning Director or
Hearings Body may approve a less restrictive front yard
setback which will be appropriate to carry out the purpose of
the zone.
FINDING: The proposed resort layout, shown in Exhibits A and A-1, establishes
setbacks of at least 200 feet from South Century Drive, at least 300 feet from Vandevert
Road, and at least 1,100 feet from Highway 97. This criterion is met.
D. Chapter 18.88, Wildlife Area Combining Zone — WA
1. Section 18.88.020. Application of Provisions.
The provisions of DCC 18.88 shall apply to all areas identified in the
Comprehensive Plan as a winter deer range, significant elk habitat,
antelope range or deer migration corridor. Unincorporated communities are
exempt from the provisions of DCC 18.88.
FINDING: The WA Combining Zone overlays the western approximately 80 percent of
the property.
2. Section 18.88.040. Uses Permitted Conditionally.
A. Except as provided in DCC 18.88.040(B), in a zone with which the
WA Zone is combined, the conditional uses permitted shall be those
permitted conditionally by the underlying zone subject to the
provisions of the Comprehensive Plan, DCC 18.128 and other
applicable sections of this title.
FINDING: The proposal is conditionally allowed in the underlying F2 Zone and is,
therefore, conditionally allowed in the WA Zone. The F2 Zone standards are addressed
above and the conditional use criteria are addressed under DCC 18.128 below.
247 -15 -000464 -CU - Caldera Springs 22
D. Subject to DCC 18.113, destination resorts are allowed as a
conditional use in that portion of the WA zone designated as the
Bend/La Pine Deer Migration Corridor as long as the property is not
in an area designated as "Deer Migration Priority Area" on the 1999
ODFW map submitted to the South County Regional Problem
Solving Group.
FINDING: The subject property is within the Bend/La Pine deer migration corridor, but is
not within a migration priority area. Staff found, and the Hearings Officer agrees, the
proposed destination resort is conditionally allowed.
3. Section 18.88.060. Siting Standards.
A. Setbacks shall be those described in the underlying zone with which
the WA Zone is combined.
FINDING: As noted under DCC 18.113.060(G)(1), setbacks required by the underlying
F2 Zone do not apply to a destination resort.
B. The footprint, including decks and porches, for new dwellings shall
be located entirely within 300 feet of public roads, private roads or
recorded easements for vehicular access existing as of August 5,
1992 unless it can be found that:
1. Habitat values (i.e., browse, forage, cover, access to water)
and migration corridors are afforded equal or greater
protection through a different development pattern; or,
2. The siting within 300 feet of such roads or easements for
vehicular access would force the dwelling to be located on
irrigated land, in which case, the dwelling shall be located to
provide the least possible impact on wildlife habitat
considering browse, forage, cover, access to water and
migration corridors, and minimizing length of new access
roads and driveways; or,
3. The dwelling is set back no more than 50 feet from the edge
of a driveway that existed as of August 5, 1992.
FINDING: Exhibit A of the supplemental application materials illustrates roads existing
as of 1992. The applicant states that numerous other roads exist which are not initially
apparent from aerial photographs. Rather than attempting to identify every road within
the subject property that existed as of 1992, the applicant addresses the exception
provided in subsection 1 above relating to habitat values.
The applicant states that strict conformance to this approval criterion would allow
residential development within the proposed Wildlife Mitigation Tract, disrupting the
north -south migration corridor, and also allow residential development along Vandevert
Road, disrupting the proposed east -west migration corridor. This would result in
segmented and disconnected habitat areas. Additionally, the applicant argues that this
criterion only applies to new dwellings and that other resort facilities could be located
within the WA Zone beyond the 300 -foot restriction and outside of the WA Zone within
the proposed Wildlife Mitigation Tract. The applicant concludes that the proposed
preservation of the Wildlife Mitigation Tract and the migration corridor along Vandevert
247 -15 -000464 -CU - Caldera Springs 23
Road provides equal, or better, protection of habitat values. This is echoed by Dr.
Wendy Wente in her technical memorandum included as Supplemental Exhibit B. Per
an email dated November 24, 2015, ODFW has no additional comments.
The applicant submitted additional evidence on November 10, 2015. Exhibit A of that
document shows that future footprints of residential dwellings and associated decks and
porches can be located within 300 feet of public or private roads. The Hearings Officer
cannot find contrary argument in the record. This criterion is met.
4. Section 18.88.070. Fence Standards.
The following fencing provisions shall apply as a condition of approval for
any new fences constructed as a part of development of a property in
conjunction with a conditional use permit or site plan review.
A. New fences in the Wildlife Area Combining Zone shall be designed
to permit wildlife passage. The following standards and guidelines
shall apply unless an alternative fence design which provides
equivalent wildlife passage is approved by the County after
consultation with the Oregon Department of Fish and Wildlife:
1. The distance between the ground and the bottom strand or
board of the fence shall be at least 15 inches.
2. The height of the fence shall not exceed 48 inches above
ground level.
3. Smooth wire and wooden fences that allow passage of
wildlife are preferred. Woven wire fences are discouraged.
B. Exemptions:
1. Fences encompassing less than 10,000 square feet which
surround or are adjacent to residences or structures are
exempt from the above fencing standards.
2. Corrals used for working livestock.
FINDING: The applicant indicates that no fences are proposed as part of this
development. A condition of approval will ensure compliance with this criterion.
E. Chapter 18.113. Destination Resorts Zone — DR
1. Section 18.113.025. Application to Existing Resorts.
Expansion proposals of existing developments approved as destination
resorts shall meet the following criteria:
A. Meet all criteria of DCC 18.113 without consideration of any existing
development; or
B. Meet all criteria of DCC 18.113 for the entire development (including
the existing approved destination resort development and the
proposed expansion area), except that as to the area covered by the
existing destination resort, compliance with setbacks and lot sizes
shall not be required.
If the applicant chooses to support its proposal with any part of the
existing development, applicant shall demonstrate that the
proposed expansion will be situated and managed in a manner that
it will be integral to the remainder of the resort.
247 -15 -000464 -CU - Caldera Springs 24
FINDING: The applicant has elected to treat the proposal as an expansion of the
existing resort and meet the criteria under DCC 18.113 for the entire development. The
applicant proposes to meet all the open space, recreation facilities, overnight lodging
and other standards based on calculations for the entire resort. The applicant indicates
that in terms of open space and density, the subject property meets the applicable
standards both in conjunction with the existing Caldera Springs Destination Resort and
as a standalone destination resort. Staff found this to be an acceptable method for
showing compliance with DCC 18.113.
In their December 15, 2105 letter, COLW argues that annexation expansions of
destination resorts are not allowed for several reasons:
• The underlying zone is subject to OAR 660-006 and will not allow such an
expansion
• The expansion is not authorized by Goal 8.
• Based on the above, the proposal amounts to a rural residential subdivision
which is not allowed on forest land.
• The applicant's interpretation places DCC 18.113.025 in conflict with DCC
18.40.030.
• The applicant's interpretation conflicts with the County's Comprehensive
Plan policy 2.3.5.
The applicant counters in their December 22, 2015 and December 29, 2015 letters that
the BOCC has already interpreted DCC 18.113.025 to allow expansions of existing
destination resorts in the Eagle Crest expansion allowed through CU-99-85/Eagle Crest
III. The applicant further argues that destination resorts are allowed on forest zones
through OAR 660-006-025(3)(n). Had the subject property been available at the time
Caldera Springs was initially approved, the expansion area could have been approved
along with it consistent with all the applicable provisions of DCC 18.113. The applicant
asserts that in 2006 the expansion area could have been allowed as a phase II of
Caldera Springs.
The Hearings Officer agrees with the applicant for several reasons. First, although it is
unclear whether arguments similar to those made by COLW here were also made in the
Eagle Crest III process, that final decision (in the record as Exhibit 3 of the applicant's
December 22, 2105 letter) shows that the BOCC did interpret DCC 18.113.025 to allow
expansions of existing destination resorts. As such, the Hearings Officer owes some
deference to that prior interpretation.
Second, in order for DCC 18.113.025 to be applicable in Eagle Crest III, that section
would have had to have been reviewed and acknowledged at some prior date by the
Department of Land Conservation and Development and determined to be compliant
with state statute and Goal 8. COLW presents no evidence to the contrary. COLW's
argument that a similar interpretation in this case is not insulated by that
acknowledgment process is incorrect. In fact, COLW's argument likely constitutes an
impermissible collateral attack on DCC 18.113.025 for those same reasons.
247 -15 -000464 -CU - Caldera Springs 25
Third, the manner in which the BOCC has interpreted DCC 18.113.025 does not on its
face allow an applicant to side step any of the other requirements of the County
provisions that apply to destination resorts. The applicant correctly argues that a
separate standalone destination resort could be allowed on the subject property, in part
because the subject property is covered by the DR zone. If an expansion of an existing
and adjacent resort is subject to the very same rules there is no logical reason why such
an expansion would necessarily not be compliant with the applicable state statutes and
Goal 8.
For this same reason, the Hearings Officer rejects COLW's argument that in order to
qualify as an "expansion" the initial Caldera Springs Conceptual Master Plan ("CMP")
must have identified the expansion area. The applicant is correct to point out that there
is no such requirement in the code. Similarly, there is no evidence to support COLW's
argument that those participating in the initial Caldera Springs review would have
objected if they had known the resort might expand in the future. The record seems to
indicate that the subject property was designated DR at that time — qualifying it for a
resort. In any case, those individuals interested in the currently proposed expansion
have been notified and have had an opportunity to comment. The Hearings Officer can
find no error here. This criterion is met.
2. Section 18.113.030. Uses in Destination Resorts.
The following uses are allowed, provided they are part of, and are intended
to serve persons at, the destination resort pursuant to DCC 18.113.030 and
are approved in a final master plan:
A. Visitor oriented accommodations designed to provide for the needs
of visitors to the resort:
1. Overnight lodging, including lodges, hotels, motels, bed and
breakfast facilities, time share units and similar transient
lodging facilities;
2. Convention and conference facilities and meeting rooms;
3. Retreat centers;
4. Restaurants, lounges and similar eating and drinking
establishments; and
5. Other similar visitor oriented accommodations consistent
with the purposes of DCC 18.113 and Goa! 8.
FINDING: Staff found, and the Hearings Officer agrees, that the uses sought in the
applicant's proposal fall within the list of uses allowed under this section. The applicant
indicates that the expansion will include between 65 and 96 additional overnight lodging
units. Assuming full build -out of Caldera Springs and the annexation property of 715
total residential units, a minimum of 286 OLUs, at the proposed 2.5:1 ratio, will be
required for the entire resort. At the present time, the developer anticipates that a
maximum of 96 OLUs will be located on the annexation property with the balance to be
constructed on the remaining lots within Caldera Springs on which no OLUs have yet
been constructed. The OLUs are anticipated to match the Caldera Cabin model used in
Caldera Springs, with each cabin including a range of between three and five lodging
units per cabin. The annexation property is also anticipated to include two separate
resort cores, each with additional resort amenities available for owners and guests.
247 -15 -000464 -CU - Caldera Springs 26
Additional pool, food and beverage, and other resort amenities will be included as the
project progresses.
B. Developed recreational facilities designed to provide for the needs
of visitors and residents of the resort;
1. Golf courses and clubhouses;
2. Indoor and outdoor swimming pools;
3. Indoor and outdoor tennis courts;
4. Physical fitness facilities;
5. Equestrian facilities;
6. Wildlife observation shelters;
7. Walkways, bike paths, jogging paths, equestrian trails;
8. Other similar recreational facilities consistent with the
purposes of DCC 18.113 and Goal 8.
FINDING: Similar to the existing Resort, the applicant states that recreational amenities
will be subject to refinement throughout the life of the Resort based on market demand,
and the needs and desires of residents and guests. Likely additional recreational
amenities for the annexation property will include multi-purpose pedestrian and bicycle
path network; various man-made lakes and meandering stream water features; pool
facility; and additional resort core areas. Staff notes that the existing Resort includes a
nine -hole short golf course, pool and fitness center, tennis and pickle ball courts, and
kids playground.
C. Residential accommodations:
1. Single family dwellings;
2. Duplexes, triplexes, fourplexes and multi family dwellings;
3. Condominiums;
4. Townhouses;
5. Living quarters for employees;
6. Time share projects.
FINDING: According to the burden of proof, the annexation property will include a range
of between 325 and 395 residential units and may include a mix of the types of
accommodations listed above. The specific housing product type will largely depend on
market demand as the project matures. The applicant states that at all times, the Resort
will demonstrate compliance with the 2.5:1 required residential and overnight lodging
ratio. The proposed residential accommodations will conform to this criterion.
D. Commercial services and specialty shops designed to provide for
the visitors to the resort:
1. Specialty shops, including but not limited to delis, clothing
stores, bookstores, gift shops and specialty food shops;
2. Barber shops/beauty salons;
3. Automobile service stations limited to fuel sales, incidental
parts sales and minor repairs;
4. Craft and art studios and galleries;
5. Real estate offices;
6. Convenience stores;
7. Other similar commercial services which provide for the
needs of resort visitors and are consistent with the purposes
of DCC 18.113 and Goal 8.
247 -15 -000464 -CU - Caldera Springs 27
FINDING: The existing resort core in Caldera Springs features a clubhouse that
includes food and beverage retail areas, as well as recreational spaces, including a
fitness center, locker rooms, indoor and outdoor pools, and child -oriented game areas
reminiscent of a "family room." The additional resort core areas are anticipated to
include complimentary uses to meet guest and owner demands as the resort develops.
Complimentary uses can include food, beverage, and pool facilities, pedestrian and bike
paths, and man-made lakes and meandering streams.
E. Uses permitted in open space areas generally include only those
uses that, except as specified herein, do not alter the existing or
natural landscape of the proposed open space areas. No
improvements, development or other alteration of the natural or
existing landscape shall be allowed in open space areas, except as
necessary for development of golf course fairways and greens,
hiking and bike trails, lakes and ponds and primitive picnic facilities
including park benches and picnic tables. Where farming activities
would be consistent with identified preexisting open space uses,
irrigation equipment and associated pumping facilities shall be
allowed.
FINDING: Staff found that the annexation property will include approximately 256 acres
of dedicated open space throughout the project. The open space areas will largely be
devoted to passive uses, including bicycle and hiking trails, along with small picnic and
park areas. Lakes and ponds are planned for open space areas, although the precise
locations, size and design have not been finalized at this time. In addition to dedicated
open space, the annexation property includes a 125 -acre Wildlife Mitigation Tract which
is in addition to the dedicated open space. The Wildlife Mitigation Tract is described
below in more detail. The Wildlife Mitigation Tract and the dedicated open space areas
will be subject to two separate management plans. In general terms, the Wildlife
Mitigation Tract is intended as a set aside and will not include any resort -related
improvements. This criterion is met.
F. Facilities necessary for public safety and utility service within the
destination resort.
FINDING: The applicant does not propose any new public safety facilities. Police
protection will be provided by the Deschutes County Sheriffs Department. Emergency
medical service will be provided from St. Charles in Bend and the medical clinic at
Sunriver. The applicant's Exhibit S is Board Order No. 2014-042, accepting the subject
property into the La Pine Rural Fire Protection District (LPRFPD). LPRFPD commented
as follows:
"The property now has fire protection from La Pine Rural Fire Protection District
and additional summer forestry patrol from the Oregon Department of Forestry.
The developer to date has shown adequate planning for access (roads), water
supply (fire hydrants), suitable firewise building and fire resistive landscaping and
other issues pertaining new developments and the fire codes as well as an
excellent performance history with the existing property development. The district
thus supports this new development and has no issues with the conditional use
permit and the requested modification to the developments master plan per
single family and overnight ratios from 2:1 to 2.5:1."
247 -15 -000464 -CU - Caldera Springs 28
No new utility facilities are included in the application materials. The applicant's Exhibit
K includes intent to serve letters from Cascade Natural Gas for natural gas; Midstate
Electric Cooperative, Inc. for electricity; Bend Broadband for telephone and cable
services; CenturyLink for telephone service; and Wilderness Garbage & Recycling for
solid waste service. The applicant indicates that the existing Sunriver Water LLC
domestic water distribution system will be extended to serve the annexation property.
Exhibit G is a copy of a Water Service Agreement. The applicant also indicates that the
Sunriver Wastewater Treatment Plant has the capacity to adequately serve the
annexation property. Exhibit H is a copy of a Sewer Service Agreement.
These uses are allowed under this section. Staff recommends, and the Hearings Officer
agrees, that a condition of approval requiring the applicant to provide signed agreements
for water and sewer service prior to Final Master Plan approval is warranted.
G. Other similar uses permitted in the underlying zone consistent with
the purposes of DCC 18.113.030.
FINDING: At the present time, the applicant does not propose any additional uses on
the annexation property or Caldera Springs in general. The applicant indicates that
amenities will be subject to refinement throughout the life of the resort, market demand,
and the needs and desires of residents and guests, and will be subject to further county
review.
H. Accessory Uses in Destination Resorts:
1. The following accessory uses shall be permitted provided
they are ancillary to the destination resort and consistent
with the purposes of DCC 18.113 and Goal 8:
a. Transportation related facilities excluding airports;
b. Emergency medical facilities;
c. Storage structures and areas;
d. Kennels as a service for resort visitors only;
e. Recycling and garbage collection facilities;
f. Other similar accessory uses consistent with the
purposes of DCC 18.113 and Goal 8.
FINDING: The applicant does not propose to include any of the accessory uses listed in
DCC 18.113.030(H). The applicant indicates that amenities will be subject to refinement
throughout the life of the resort, market demand, and the needs and desires of residents
and guests. Any additional accessory uses will be subject to further county review.
3. Section 18.113.050. Requirements for conditional use permit and conceptual
master plan applications.
The CMP provides the framework for development of the destination resort
and is intended to ensure that the destination resort meets the
requirements of DCC 18.113. The CMP application shall include the
following information:
A. Illustrations and graphics to scale, identifying:
1. The location and total number of acres to be developed as a
planned destination resort;
247 -15 -000464 -CU - Caldera Springs 29
FINDING: The applicant's Exhibits A, A-1 and B depict the location and acreage of the
property.
2. The subject area and all land uses adjacent to the subject
area;
FINDING: The applicant's Exhibit B illustrates the subject area and adjacent land uses.
3. The topographic character of the site;
FINDING: The application materials do not include a topographic map. However, the
applicant's Stormwater Disposal and Erosion Control Master Plan, submitted as Exhibit
L, states that the property is generally flat, with natural ground slopes ranging from zero
to six percent, with limited areas up to 12 percent.
COLW argues that this section is not met because no topographic map has been
included in the materials. The Hearings Officer finds that this section does not expressly
call for a map. A description of the property or other maps and information describing
the "topographic character" are sufficient to satisfy this section. Those materials exist in
the record.
4. Types and general location of proposed development uses,
including residential and commercial uses;
FINDING: The applicant's Exhibits A and A-1 depict the general location of residential
and resort core uses, and the Wildlife Mitigation Tract. The applicant's November 10,
2015 submission contains similar information.
5. Major geographic features;
FINDING: No major geographic features exist on-site.
6. Proposed methods of access to the development, identifying
the main vehicular circulation system within the resort and an
indication of whether streets will be public or private;
FINDING: The applicant's Exhibits A and A-1 show the general location of internal
streets and the three proposed access points. The burden of proof indicates that all
internal streets will be privately owned and maintained by the homeowner's association.
7. Major pedestrian, equestrian and bicycle trail systems;
FINDING: The applicant's Exhibit R, Vehicular and Pedestrian Access Plan and
Roadway Standards, describes a ten -foot -wide multi -use path network, similar to that
used within the existing Resort. No map or illustration of the multi -use path network
within the annexation property was included in the application materials.
COLW argues that no map with the multi -use path network is in the record. The
applicant counters that the CMP contains all of this information.
The Hearings Officer finds that the CMP is sufficient to determine the major pedestrian
and bicycle trail systems. The applicant submitted additional information in Exhibit 8 of
their December 22, 2015 submission that shows the location of trails.
247 -15 -000464 -CU - Caldera Springs 30
8. Important natural features of the site, including habitat of
threatened or endangered species, streams, rivers, wetlands
and riparian vegetation within 200 feet of streams, rivers and
wetlands.
FINDING: As noted above, the expansion property is generally flat with no significant
topographic features on-site. Additionally, the subject property contains no habitat of
threatened or endangered species, and no natural streams, rivers, wetlands, or riparian
vegetation.
9. All uses proposed within landscape management corridors
identified by the comprehensive plan or zoning ordinance.
FINDING: The subject property is covered by the LM Combining Zones associated with
South Century Drive, Vandevert Road and Highway 97. Based on staffs review of the
county's Geographic Information System ("GIS") map, uses within the above -referenced
LM corridors will include residences, roadways, open space and the Wildlife Mitigation
Tract. The Hearings Officer finds that staffs review is sufficient to satisfy this criterion.
10. The location and number of acres reserved as open space,
buffer area, or common area. Areas designated as "open
space," "buffer area," or "common area" should be clearly
illustrated and labeled as such;
FINDING: The applicant's Exhibits A and A-1 depict the general locations of residential
uses, resort amenities, visitor -oriented accommodations, and the Wildlife Mitigation
Tract. Staff concluded that all other areas are dedicated open space.
COLW argues that no map of open space, buffer areas and common areas exists in the
record. The applicant counters that the CMP provides all the required information.
The Hearings Officer finds that this criterion does not require a single map to illustrate
each area. The CMP is sufficient. In addition, the applicant's November 10, 2015
submission contains multiple maps and information to clarify the location of the areas
covered by this section. This criterion is met.
11. All proposed recreational amenities;
FINDING: The applicant's Exhibits A and A-1 illustrates the general location of
proposed resort amenities.
12. Proposed overall density.
FINDING: The applicant's Land Use Summary at the top of Exhibits A and A-1 detail the
proposed density of residential lots and visitor -oriented accommodations. This same
summary is presented in tabular form in the burden of proof.
B. Further information as follows:
1. A description of the natural characteristics of the site and
surrounding areas, including a description of resources and
24T15 -000464 -CU - Caldera Springs 31
the effect of the destination resort on the resources; methods
employed to mitigate adverse impacts on resources; analysis
of how the overall values of the natural features of the site
will be preserved, enhanced or utilized in the design concept
for the destination resort; and a proposed resource
protection plan to ensure that important natural features will
be protected and maintained. Factors to be addressed
include:
a. Compatibility of soil composition for proposed
development(s) and potential erosion hazard;
FINDING: The applicant's Stormwater Disposal and Erosion Control Master Plan,
submitted as Exhibit L, details the applicant's plan to manage erosion and stormwater.
The applicant's burden of proof states that the soils on-site include loose sands and silt
at the surface and highly compressible diatomaceous silt at depth. The staff accepted
this information and there is no contrary evidence to conclude that the soil conditions on
the property are incompatible with the proposed uses. This criterion is met.
b. Geology, including areas of potential instability;
FINDING: The burden of proof does not identify any areas of potential instability.
c. Slope and general topography;
FINDING: As noted previously, the annexation property is generally flat with slopes
ranging from zero to six percent, with limited areas of up to 12 percent.
d. Areas subject to flooding;
FINDING: The burden of proof states that the groundwater table fluctuates on the
annexation property. Shallow groundwater may be encountered due to deep excavation
associated with sewer trenching and lake construction/lining. The applicant states that it
will minimize construction impacts from shallow groundwater by dewatering; summer
and fall construction to coincide with the naturally lowered groundwater table; and
potential use of trenchless technologies to avoid open trench construction.
Staff found that the subject property is not within a mapped flood plain or wetland. No
natural streams, rivers or other waterways exist on-site. This criterion is met.
e. Other hazards or development constraints;
FINDING: The burden of proof does not identify any other hazards or development
constraints. The record does not contain any relevant contrary evidence.
f. Vegetation;
FINDING: The burden of proof states that much of the subject acreage was logged in
the 1940s. Consequently, tree coverage is now predominantly lodgepole and ponderosa
pine. Logging debris and slash are evident throughout the site. The annexation
property is scarred by a number of logging roads, recreational vehicle trails and a large
transmission line corridor. Small diameter lodgepole pine thickets are evident
247 -15 -000464 -CU - Caldera Springs 32
throughout. Open meadows of golden fescues and native grasses are interspersed
throughout the annexation property. Some bitterbrush and native shrubs are also
present. The Wildlife Habitat Evaluation submitted as Exhibit C describes the property in
greater detail.
g.
Water areas, including streams, lakes, ponds and
wetlands;
FINDING: No natural water areas exist on-site. The applicant notes that there are high
water table areas that can be subject to ponding during rainy periods.
h. Important natural features;
FINDING: The predominant natural feature on-site is the ponderosa and lodgepole pine
forest. No other significant natural features exist on-site.
Landscape management corridors;
FINDING: Applicable LM corridors are addressed in the burden of proof and in this
decision above.
J•
Wildlife.
FINDING: The applicant's Exhibits C and C-1 detail wildlife and habitat on-site.
2. A traffic study which addresses (1) impacts on affected
County, city and state road systems and (2) transportation
improvements necessary to mitigate any such impacts. The
study shall be submitted to the affected road authority (either
the County Department of Public Works or the Oregon
Department of Transportation, or both) at the same time as
the conceptual master plan and shall be prepared by a
licensed traffic engineer to the minimum standards of the
road authorities.
FINDING: The applicant's TIA was submitted as Exhibit D. In addition, a revised TIA
was submitted on October 19, 2015.
At the public hearings and in written submissions participants raised concerns about the
initial TIA. One concern was that the vehicle counts used had not been appropriately
seasonally adjusted. The applicant submitted a refined analysis dated November 17,
2015 which confirms that all of the surrounding roads will have sufficient capacity to
meet the County's level of service standards if the proposal is approved. This
information is supported by a November 20, 2015 memo from Senior Transportation
Planner, Peter Russell.
A second concern was with the potential closure of Vandevert Road at Hwy 97. Again,
Peter Russell addressed these concerns in a December 17, 2015 memo. His memo
relies in part on ODOT's statement of when and how Vandevert Road/Hwy 97
intersection might be changed in the future dated November 20, 2015. The memo
explains why it is appropriate for the TIA to assume that the intersection will remain open
for the purposes of considering the impact of the resort. The primary reason is that
247 -15 -000464 -CU - Caldera Springs 33
ODOT is responsible to that intersection and must step through a process prior to any
changes. That will trigger public hearings before the BOCC. Until that time, it is
appropriate to rely on the Vandevert Road/Hwy 97 intersection as it is.
The Hearings Officer finds the TIA and the applicant's information sufficient to satisfy this
criterion. There is no credible contrary evidence in the record.
3. A description of how the proposed destination resort will
satisfy the standards and criteria of DCC 18.113.060 and
18.113.070;
FINDING: The applicant' burden of proof specifically addresses DCC 18.113.060 and
18.113.070.
4. Design guidelines and development standards defining visual
and aesthetic parameters for:
a. Building character;
b. Landscape character;
c. Preservation of existing topography and vegetation;
d. Siting of buildings; and
e. Proposed standards for minimum lot area, width,
frontage, lot coverage, setbacks and building heights.
FINDING: The applicant's Design Guidelines and Development Standards are
submitted as Exhibit E-2. The Open Space Management Plan submitted as Exhibit F
details the proposed uses, management and preservation of open space areas. The
applicant proposes the same Dimensional Standards that were approved with the
existing Resort. The specific Dimensional Standards are detailed below.
5. An open space management plan which includes:
a. An explanation of how the open space management
plan meets the minimum standards of DCC 18.113 for
each phase of the development;
b. An inventory of the important natural features
identified in the open space areas and any other open
space and natural values present in the open space;
c. A set of management prescriptions that will operate to
maintain and conserve in perpetuity any identified
important natural features and other natural or open
space values present in the open space;
d. Deed restrictions that will assure that the open space
areas are maintained as open space in perpetuity.
FINDING: The applicant's Exhibit F is the proposed Open Space Management Plan. It
defines open space and typical uses for designated open space. Some open space
areas are evident on the conceptual master plan, but the applicant has proposed that
most detailed descriptions of open space will be provided at the time of actual
development. The open space plan also describes management practices for the
various types and uses of open space. A number of management prescriptions are
listed to preserve and enhance open space into perpetuity. As the resort matures, open
space will be managed by the homeowner's association. The submitted Open Space
247 -15 -000464 -CU - Caldera Springs 34
Management Plan describes the types and uses of improvements allowed in open
spaces, pursuant to Chapter 18.113.
The CCRs stipulate the preservation of common areas in perpetuity. The applicant
states that open space alternatives have been identified in conceptual master plan
alternatives, with final open space use and location to be defined in subsequent land use
actions. The applicant states that open space use and location will conform to the
requirements and definition of stipulated open space. This criterion is met.
6. An explanation of public use of facilities and amenities on the
site.
FINDING: The annexation property will utilize the existing amenities at Caldera Springs
and, as described above, will include additional resort core areas which will be available
for owners and guests. A paved trail system will also be integrated with the existing
pathway system at Caldera Springs.
7. A description of the proposed method of providing all utility
systems, including the location and sizing of the utility
systems;
FINDING: The revised staff report provides additional findings that support the Hearings
Officer's conclusions below.
Domestic Water
The applicant proposes to provide domestic water via extension of Sunriver Water LLC
("SWLLC"), from Caldera Springs. Exhibit I is the water supply plan for the annexation
property. The applicant states that this plan demonstrates that the existing SWLLC
water supply system has adequate capacity to meet the needs of the annexation
property. Existing storage facilities are available to serve all residents of the applicant's
existing and proposed projects, and to assure fire protection. No additional capacity
improvements are required to serve the project. The applicant indicates that it will be
solely responsible for the costs associated with extending water service to the
annexation property and for the installation of on-site water supply infrastructure.
The burden of proof states that SWLLC has water rights to accommodate the residential
development, irrigation, and fire protection for the annexation property. Prior to final plat
approval, the applicant states that SWLLC will obtain approval to expand its service
territory through a request to the Oregon Public Utility Commission.
SROA raised concerns about the impact of the expanded resort on the existing water
system that serves Sunriver and Caldera Springs. In SROA's December 15, 2105
submittal, they detail some reasons for their concern that the existing system is not
robust enough to serve the expanded resort. Part of this information comes from a 2014
Public Utility Commission docet. That information does not explicitly state that the water
system is not large enough to supply the needed domestic water for the expansion.
SROA also submitted analysis by Fodor & Associates questioning the capacity of the
existing system and the applicant's reliance on it.
247 -15 -000464 -CU - Caldera Springs 35
The applicant provided responsive evidence in their November 10, 2015 submission
which contains November 10, 2015 analysis by Parametrix. The applicant gives a frank
assessment of the current system and notes that several improvements to the water
system are already needed for pumps and storage. The applicant's evidence shows that
sufficient water and rights exist to serve expanded resort, but the system will need
upgrades.
The Hearings Officer finds that the evidence in the record is sufficient to show
compliance with this criterion as it applies to domestic water (including water for fire
protection). Although there is competing expert testimony, none of the evidence
demands a conclusion that water cannot be made available for the applicant's proposal.
SROA's concern is understandable. However, the supposition that this criterion requires
a demonstration that a water system must currently have adequate capacity is incorrect.
The criterion only requires proof of a method and sizing. That has been done here —
with the concession that the applicant will be responsible for the cost of some of the
upgrades to the system. Importantly, and as SROA correctly notes, any request for a
system expansion must be undertaken through a public PUC process which will give
current SROA members a chance to participate and comment on the cost to ratepayers.
Wastewater Treatment Facilities
The applicant's Exhibit J is a wastewater treatment review, which summarizes the
results of the flow and Toad projections, and wastewater treatment capacity evaluation of
the annexation proposal. The review indicates that the existing wastewater treatment
plant has capacity to serve Sunriver's existing connections plus the addition of the
annexation property.
SROA made comments on the existing sewer system very similar to those they made
about domestic water. The applicant responded in the same submissions and memos
noted above. Again, there is a disagreement about existing capacity. However, the
applicant has provided sufficient evidence that the existing sewer system has sufficient
capacity. The applicant concedes that future upgrades will be needed. However, again
the expanded resort will be required to pay a proportionate share of those costs when
the improvements are made. This evidence is sufficient to satisfy the criterion.
Electricity
The applicant's Exhibit K includes a "will -serve" letter from MidState Electric.
Natural Gas
The applicant's Exhibit K includes a "will -serve" letter from Cascade Natural Gas.
Telephone
The applicant's Exhibit K includes a "will -serve" letter from Century Link.
8. A description of the proposed order and schedule for
phasing, if any, of all development including an explanation
of when facilities will be provided and how they will be
247 -15 -000464 -CU - Caldera Springs 36
secured if not completed prior to closure of sale of individual
Tots or units;
FINDING: The applicant states that development of the annexation property will be
constructed in phases to comply with market demand. Typical phase boundaries are
denoted on the conceptual master plan and submitted as Exhibits A and A-1. The
applicant has noted, however, that the phased boundaries and sequence are subject to
change with market demand.
The applicant's December 29, 2015 states that the CMP depicts the phased
development of the resort. See findings for DCC 18.113.060(E).
9. An explanation of how the destination resort has been sited
or designed to avoid or minimize adverse effects or conflicts
on adjacent lands. The application shall identify the
surrounding uses and potential conflicts between the
destination resort and adjacent uses within 660 feet of the
boundaries of the parcel or parcels upon which the resort is
to be developed. The application shall explain how any
proposed buffer area will avoid or minimize adverse effects or
conflicts;
FINDING: Staff found that land to the north of the annexation property within 660 feet is
comprised of the Sunriver Business Park, the Burlington Northern main line and vacant
forest property owned by the USFS. The Burlington Northern main line provides a
significant barrier between the annexation property and the USFS lands. The back of
Business Park improvements, including storage and parking, abut the subject property to
the north. The existing Midstate Electric Cooperative substation is also sited at the north
property line. The applicant indicates that berms and/or setbacks will screen and buffer
the annexation property from the electrical substation and the back door operations of
the Sunriver Business Park. Staff concluded that given the narrow width in this area,
very little development is anticipated. It is anticipated that less than 15 to 20 homes will
be within 660 feet of the business park.
Property to the west of the subject property is comprised of the existing Caldera Springs
resort. The annexation property will be fully integrated with Caldera Springs. For this
reason, Staff concluded that there is no need to create any additional buffers between
the phases. As depicted on the site plan, significant buffers and dedicated open spaces
will be maintained between the two phases of Caldera Springs.
The Crosswater development and Vandevert Ranch are located west of the annexation
property, across South Century Drive. A significant berm was constructed to buffer
Crosswater from the noise and visual impacts of South Century Drive. The existing
berm will also buffer Crosswater from the annexation proposal. A similar berm was
constructed by the applicant on the easterly side of South Century Drive in connection
with the initial development of Caldera Springs. In addition, the southwest corner of the
property includes a small strip of undevelopable land along South Century Drive. The
combination of berms and the existing South Century Drive establishes an effective
buffer between the annexation property, and the Crosswater development and
Vandevert Ranch.
247 -15 -000464 -CU - Caldera Springs 37
South of Vandevert Road there is a combination of undeveloped forest land and a rural
subdivision platted as Vandevert Acres. The existing residential development is more
than 660 feet from the property line. The annexation property will include a setback of
approximately 150 feet from Vandevert Road. This setback will provide significant
buffering from any future development south of Vandevert Road. In addition, the
setback will provide an east -west migration corridor for mule deer and other wildlife
species.
Property to the east of the annexation property includes the Burlington Northern main
line and Highway 97. The 125 -acre Wildlife Mitigation Tract will provide a significant
buffer between the annexation property and these adjacent uses.
The Hearings Officer agrees with Staff's conclusions that the proposed design of the
resort will minimize adverse impacts on surrounding lands.
10. A description of the proposed method for providing
emergency medical facilities and services and public safety
facilities and services including fire and police protection;
FINDING: Police protection will be provided by the Deschutes County Sheriffs
Department. Fire protection will be provided by La Pine Rural Fire Protection District.
Emergency medical service will be provided from St. Charles in Bend and the medical
clinic at Sunriver. The applicant states that Sunriver medical and public safety services
may be the first responder in an emergency, given the close proximity of the subject
property to the Sunriver Resort, and the first responder agreements that are in place
between the various medical and public safety providers in the county.
11. A study prepared by a hydrologist, engineering geologist or
similar professional certified in the State of Oregon
describing:
a. An estimate of water demands for the destination
resort at maximum buildout, including a breakdown of
estimated demand by category of consumption,
including but not limited to residential, commercial,
golf courses and irrigated common areas;
b. Availability of water for estimated demands at the
destination resort, including (1) identification of the
proposed source; (2) identification of all available
information on ground and surface waters relevant to
the determination of adequacy of water supply for the
destination resort; (3) identification of the area that
may be measurably impacted by the water used by the
destination resort (water impact area) and an analysis
supporting the delineation of the impact area; and (4) a
statistically valid sampling of domestic and other wells
within the impact area;
c. A water conservation plan including an analysis of
available measures which are commonly used to
reduce water consumption. This shall include a
justification of the chosen water conservation plan.
The water conservation plan shall include a
wastewater disposal plan utilizing beneficial use of
reclaimed water to the maximum extent practicable.
247 -15 -000464 -CU - Caldera Springs 38
For the purposes of DCC 18.113.050, beneficial uses
shall include, but are not limited to:
i. Irrigation of golf courses and greenways;
ii. Establishment of artificial wetlands for wildlife
habitation.
FINDING: The applicant retained Parametrix to prepare a water supply system master
plan, evaluate and report on the availability of water, estimate demands of the resort,
develop a water conservation plan and evaluate any water impact area. Parametrix
concludes that at final project build -out, the water system for the resort will serve
approximately 414 equivalent dwelling units, 25 acres of parks, meadow and
landscaping, nine acres of water features and approximately 34 acres of irrigation water.
Total domestic water consumption is estimated at 278 gallons per minute ("gpm"), while
irrigation water is anticipated at 191 gpm.
As noted above, the findings above conclude the existing Sunriver Water LLC water
supply is adequate to serve the annexation property together with the remainder of
SRWLLC's service area. The applicant indicates that water mains will be extended to
and through the annexation property to provide an efficient looped network with ample
capacity and reliability.
In addition, the applicant provided an analysis by Parametrix, in a December 21, 2015
memo, showing that Sunriver Water LLC has sufficient water rights to serve the project
without new water rights being obtained. These criteria are met.
12. An erosion control plan for all disturbed land, as required by
ORS 468. This plan shall include storm and melt water
erosion control to be implemented during all phases of
construction and permanent facilities or practices for the
continuing treatment of these waters. This plan shall also
explain how the water shall be used for beneficial use or why
it cannot be used as such;
FINDING: The applicant's Exhibit L is an erosion control plan that addresses soil
conditions, natural topography, and anticipated stormwater runoff. The plan concludes
that the relatively permeable surface soils will facilitate surface infiltration of stormwater.
The plan states that erosion control plans and measures will give consideration as
required to ORS 468. Further, it states that plans will be prepared and reviewed during
all phases of construction, including practices for continual treatment of stormwater.
COLW argued that the applicant had not explained how stormwater might be used for
beneficial use. In their December 29, 2105 submission the applicant provided additional
explanation of the stormwater system and how proposed swales will be used to allow
natural infiltration of stormwater back into the water table. The CMP shows these
systems.
The Hearings Officer finds that directing stormwater to natural and constructed swales
for the purpose of treating and disposing of stormwater is sufficient to show a beneficial
use for the purposes of this criterion.
13. A description of proposed sewage disposal methods;
247 -15 -000464 -CU - Caldera Springs 39
FINDING: The applicant's Exhibit I, Sewage Collection and Water Systems Master
Pian, describes the proposed sewer extension to serve the annexation property. The
findings regarding the sewer system discussed above are included here by reference.
14. Wildfire prevention, control and evacuation plans;
FINDING: Exhibit M is the applicant's Wildfire Management Plan.
15. A description of interim development including temporary
structures related to sales and development;
FINDING: No temporary structures are proposed.
16. Plans for owners' associations and related transition of
responsibilities and transfer of property;
FINDING: The Caldera Springs Owners Association has been in existence since 2006.
The applicant states that the annexation property will be annexed fully into the
Covenants, Conditions and Restrictions for Caldera Springs. Exhibits E and E-1 are
copies of the current Declaration of Covenants, Conditions and Restrictions.
17. A description of the methods of ensuring that all facilities and
common areas within each phase will be established and will
be maintained in perpetuity;
FINDING: A plan to ensure the transfer and maintenance of common areas is set forth
in the CCRs submitted as Exhibit E and E-1, and the Open Space Management Plan
submitted as Exhibit F. The applicant states that with the recording of each plat, a
supplemental declaration will be recorded annexing the property contained in each plat
and designating certain areas as residential lots, living units, common areas and other
land use designations as provided in the Declaration. In the Declaration and each
supplemental declaration, all streets will be designated "common area" as defined in the
Declaration. Additional designated "common areas" may include open space lots and
trails. This criterion is met.
18. A survey of housing availability for employees based upon
income level and commuting distance;
FINDING: The anticipated employee needs and a survey of housing availability for
employees were submitted as a part of the Economic Impact and Feasibility Analysis
(Exhibit 0). The analysis indicates that both rental and for -sale housing will be available
for employees given the current housing inventory. The analysis goes on to state that
these rental and for -sale units represent a wide range of price points. The analysis
concludes that the local area currently contains small to large surpluses of rental and for -
sale units in line with the estimated budgets of these new households.
19. An economic impact and feasibility analysis of the proposed
development prepared by a qualified professional
economist(s) or financial analyst(s) shall be provided which
includes:
247 -15 -000464 -CU - Caldera Springs 40
a. An analysis which addresses the economic viability of
the proposed development;
b. Fiscal impacts of the project including changes in
employment, increased tax revenue, demands for new
or increased levels of public services, housing for
employees and the effects of Toss of resource lands
during the life of the project.
FINDING: The applicant's Exhibit 0 is an economic impact and feasibility analysis
prepared by Peterson Economics. The analysis addresses the economic viability of the
development, along with anticipated fiscal impacts.
20. A solid waste management plan;
FINDING: Exhibit K includes a "will -serve" email from Wilderness Garbage and
Recycling.
21. A description of the mechanism to be used to ensure that the
destination resort provides an adequate supply of overnight
lodging units to maintain compliance with the 150 -unit
minimum and 2 and one-half to 1 ratio set forth in DCC
18.113.060(D)(2). The mechanism shall meet the requirements
of DCC 18.113.060(L);
FINDING: As is the case with Caldera Springs, all overnight lodging units associated
with the annexation property will be subject to the Caldera Cabins CCRs. The burden of
proof states that these CCRs impose the obligation to maintain the units as qualified
overnight lodging units. In addition, ongoing conditions of approval and county code
requirements regarding reporting will apply to the annexation property and, in particular,
the lots designated for overnight lodging.
22. If the proposed destination resort is in a SMIA combining
zone, DCC 18.56 shall be addressed;
FINDING: The subject property is not located within a SMIA Combining Zone.
23. If the proposed destination resort is in an LM combining
zone, DCC 18.84 shall be addressed;
FINDING: The burden of proof addresses DCC 18.84.
24. A survey of historic and cultural resources inventoried on an
acknowledged Goal 5 inventory;
FINDING: County Comprehensive Plan Chapter 23.40.060 includes the County's "Goal
5 Inventoryof Historic Resources that are protected by the County's Historic
Preservation Code. No site, building, or structure on this land is included in the list. The
State requires local jurisdictions to preserve and protect all structures and sites listed on
the National Register of Historic Places within their jurisdictions. There are no National
Register -listed structures on this land.
247 -15 -000464 -CU - Caldera Springs 41
25. Other information as may reasonably be required by the
Planning Director to address the effect of the proposed
development as related to the requirements of DCC Title 18.
FINDING: In response to requests by staff and the public, the applicant submitted
additional information as described throughout this decision.
4. Section 18.113.060. Standards for Destination Resorts.
The following standards shall govern consideration of destination resorts:
A. The destination resort shall, in the first phase, provide for and
include as part of the CMP the following minimum requirements:
1. At least 150 separate rentable units for visitor oriented
overnight lodging as follows:
a. The first 50 overnight lodging units must be
constructed prior to the closure of sales, rental or
lease of any residential dwellings or lots.
b. The resort may elect to phase in the remaining 100
overnight lodging units as follows:
i. At least 50 of the remaining 100 required
overnight lodging units shall be constructed or
guaranteed through surety bonding or
equivalent financial assurance within 5 years of
the closure of sale of individual lots or units,
and;
ii. The remaining 50 required overnight lodging
units shall be constructed or guaranteed
through surety bonding or equivalent financial
assurance within 10 years of the closure of sale
of individual Tots or units.
If the developer of a resort guarantees a portion
of the overnight lodging units required under
subsection 18.113.060(A)(1)(b) through surety
bonding or other equivalent financial
assurance, the overnight lodging units must be
constructed within 4 years of the date of
execution of the surety bond or other
equivalent financial assurance.
iv. The 2:1 accommodation ratio4 required by DCC
18.113.060(D)(2) must be maintained at all
times.
c. If a resort does not chose to phase the overnight
lodging units as described in 18.113.060(A)(1)(b), then
the required 150 units of overnight lodging must be
constructed prior to theclosure of sales, rental or
lease of any residential dwellings or Tots.
4 This reference to a 2:1 ratio is a clerical error. Pursuant to Ordinance 2013-008, the county amended
the ratio of residential units to OLUs from 2:1 to 2.5:1, consistent with legislative changes made to ORS
197.445(4)(b)(E) and OAR 660-015-000(8). The Planning Division's Work Plan includes correcting this
error to reference a 2.5:1 ratio as part of its housekeeping amendments.
247 -15 -000464 -CU - Caldera Springs 42
FINDING: As noted above, the applicant has elected to measure compliance with the
county's destination resort standards by considering the annexation property together
with the existing Caldera Springs Destination Resort. As of the submittal date of the
subject application, the applicant states it has constructed a total of 152 OLUs. The
applicant anticipates construction of all 160 overnight lodging units required by the
original Caldera Springs CMP within the next calendar year. As a part of the current
request, the applicant is modifying the 2:1 ratio approved in the original CMP to reflect
the current county standard of 2.5:1. As a consequence, with 160 overnight lodging
units either constructed or financially assured, and the ratio modified to 2.5:1, in addition
to the 320 single-family lots permitted in Caldera Springs, the applicant is entitled to 80
additional residential units prior to the need to develop any further OLUs. Upon
completion of the 80 additional residences, the applicant will be required to provide
additional OLUs. At this point in time, the applicant has not determined whether OLUs
will be constructed prior to the sale of additional residential lots, whether additional OLUs
will be bonded, or whether a combination of the two may be appropriate. The applicant
indicates the required ratio will be maintained at all times. As discussed above, a portion
of the OLUs necessary to support full build out of residential units on the annexation
property will likely occur on existing overnight lodging -designated lots in Caldera Springs
that are currently undeveloped.
COLW strongly disputes that the current method that Caldera Springs uses to make the
"rentable units" available is compliant with DCC 18.113.060. They argue that in reality
the existing stock of rentable units is really just 38 luxury homes. COLW acknowledges
that if each bedroom of those 38 homes is viewed as a "unit" then perhaps minimum
compliance could be had. They dispute that Caldera Springs actually rents these homes
by the unit. Indeed, COLW attaches the 2014 Caldera Springs rental record which
proves the point that at least in that year each of the "cabins" was rented in total, and
there was not even one instance in which a single bedroom was rented separately from
the rest of the home. COLW argues that at best these rooms should be categorized as
"dormitory rooms" which do not qualify as overnight rentable units under either ORS
197.435(5)(b) or DCC 18.113.060.
The applicant provided a refined description of how Caldera Springs views the same 38
"cabins." There is no dispute that the units are contained within what otherwise appears
to be a single family residence. The distinction is that each bedroom has a separate
entrance and a separate bathroom. The applicant states that each of the rooms is
separately rentable based on the reservation system. Again, the 2014 rental report
shows the homes broken down by bedroom — even if all bedrooms in each home that
year were always rented together by one guest. This circumstance is preferred by most
guests, the applicant argues.
For the purposes of this decision, the Hearings Officer concludes that the applicant's
system for making "rentable units" available for overnight accommodation complies with
DCC 18.113.060 and the definitions in 18.04.030. There is no evidence which would
cause the Hearings Officer to doubt the veracity of the applicant's statements (see also
the letter from Caldera Springs at Exhibit 5 of the applicant's December 22, 2015 letter)
or the information about the Caldera Springs website as presented by COLW. Caldera
Springs has interpreted the state definition of "[ojvernight lodging" in a way that turns a
large single family residence into a "cabin", and a five bedroom five bath house into five
"rentable units." With the addition of the separate entrance for each bedroom and at
least the colorable claim to allowing each room to be rented individually, Caldera Springs
247 -15 -000464 -CU - Caldera Springs 43
appears to have finessed DCC 18.113.060 in a way that minimally satisfies the 150
separate rentable unit standard.
Although COLW clearly condemns the method that Caldera Springs uses for renting out
the homes, there is no evidence that the Hearings Officer has been pointed to in the
record that shows that the 38 houses at issue are really simply used as full or part time
residences — which is the heart of the standards set in the destination resort statute.
And, while additional evidence (such as a deliberate system of actively discouraging the
separate rental of individual bedrooms, or a pricing scheme that accomplished the same
result) may have swayed the Hearings Officer to find noncompliance, that evidence does
not appear to be in the record. I did not visit the website to search for such evidence
since it is outside the record. There also is little help in the legislative findings for ORS
197.435 which might require a conclusion that Caldera Springs's current rental system is
forbidden. Consequently, the Hearings Officer finds that the application meets this
criterion.
For all the same reasons stated above, I also find that Caldera Springs's rental system
does not transform the rooms or homes into a "dormitory."
2. Visitor oriented eating establishments for at least 100
persons and meeting rooms which provide seating for at
least 100 persons.
FINDING: In connection with the initial development of Caldera Springs, the applicant
constructed the Lakehouse and Zeppa Bistro which, together, provide visitor eating
establishments and meeting rooms for at least 100 persons. In addition, the applicant
anticipates additional resort core recreation and visitor oriented facilities in connection
with later phases of development on the annexation property. This criterion is met.
3. The aggregate cost of developing the overnight lodging
facilities, developed recreational facilities, and the eating
establishments and meeting rooms shall be at least
$7,000,000 (in 1993 dollars).
FINDING: The record indicates that the aggregate amount of $7,000,000 equates to
$11,560,318.34 in 2015 dollars using a standard Consumer Price Index (CPI) calculator.
In connection with the development of Caldera Springs, the applicant spent $50,000,000
in connection with the cost of developing the overnight lodging facilities, developed
recreational facilities, and the eating establishments and meeting rooms. In connection
with later phases of development, the applicant will construct additional overnight
lodging facilities, developed recreational facilities and other resort amenities. The costs
associated with future development, in conjunction with the capital improvements
already made exceed the $11,560,318.34 required by this standard. This criterion is
met.
4. At least $ 2,333,333 of the $7,000,000 (in 1993 dollars) total
minimum investment required by DCC 18.113.060(A)(3) shall
be spent on developed recreational facilities.
FINDING: In 2015 dollars, the aggregate amount of $2,333,333 equates to
$3,853,438.90, using a standard CPI calculator. Staff found that to date, the applicant
247 -15 -000464 -CU - Caldera Springs 44
has spent over $11,000,000 in connection with the cost of developing recreational
facilities. As mentioned elsewhere, in connection with later phases of development, the
applicant will construct additional developed recreational facilities and other resort
amenities. Staff concluded that the costs associated with future development, in
conjunction with the capital improvements already made far exceed the $3,853,438.90
required by this standard.
COLW argues that the record is not specific and certain enough about the types of
recreational facilities to be built to satisfy this standard. COLW's argument does not
acknowledge investments already made for recreational facilities in Caldera Springs.
The applicant points to the BOCC decision in Eagle Crest III where prior expenditures
and construction of recreational facilities was deemed sufficient to satisfy this standard.
The applicant also states that of the approximately $50,000,000.00 already spent on
Caldera Springs, $11,000,000.00 has been spent on recreational facilities. This amount
is not disputed in the record.
The Hearings Officer agrees with the applicant's reading of Eagle Crest III. Prior
expenditures that meet the minimum threshold may be used to satisfy this criterion.
There is no contrary evidence in the record that would undermine the applicant's
assertion that $11,000,000.00 has already been spent on recreational facilities. Given
that those facilities are built, they are specific and certain enough to satisfy this standard.
This section may also be the best place to address the comments made at the hearings
and in written testimony about Harpers Bridge and the state of the boat ramp. Although
safe reliable access to the Deschutes River is definitely a public good, there is nothing in
the criteria governing destination resorts that would necessarily require this applicant to
provide improvements to the existing river access. The Hearings Officer cannot take
action on those comments because they are not relevant to any applicable approval
standards.
5. The facilities and accommodations required by DCC
18.113.060(A)(2) through (4) must be constructed or
financially assured pursuant to DCC 18.113.110 prior to
closure of sales, rental or lease of any residential dwellings
or Tots or as allowed by DCC 18.113.060(A)(1).
FINDING: Because the facilities meeting the threshold amounts described above have
been constructed, there is no need to financially assure any additional facilities. As
discussed above, at the point in time at which the applicant will be required to provide
additional OLUs, the applicant will elect whether to financially assure those units or
construct them prior to sale of single-family units.
B. All destination resorts shall have a minimum of 160 contiguous
acres of land. Acreage split by public roads or rivers or streams
shall count toward the acreage limit, provided that the CMP
demonstrates that the isolated acreage will be operated or managed
in a manner that will be integral to the remainder of the resort.
FINDING: Together, the original resort and the annexation property will encompass
approximately 1,009 contiguous acres of land. This standard is met.
247 -15 -000464 -CU - Caldera Springs 45
C. All destination resorts shall have direct access onto a state or
County arterial or collector roadway, as designated by the
Comprehensive Plan.
FINDING: The existing Resort has access onto South Century Drive, a designated
county arterial road. This criterion will be met.
D. A destination resort shall, cumulatively and for each phase, meet the
following minimum requirements:
1. The resort shall have a minimum of 50 percent of the total
acreage of the development dedicated to permanent open
space, excluding yards, streets and parking areas. Portions
of individual residential lots and landscape area requirements
for developed recreational facilities, visitor oriented
accommodations or multi family or commercial uses
established by DCC 18.124.070 shall not be considered open
space;
FINDING: The applicant's Exhibit A and A-1 indicate that the Resort, as a whole, will
encompass approximately 884 acres of land. Approximately 463 acres, or 52 percent, of
the Resort will be retained as permanent open space. The applicant's burden of proof
states that this calculation does not include the 125 -acre Wildlife Mitigation Tract. If this
Tract were included in the calculations, the Resort would encompass approximately
1,009 acres with 588 acres, or 58 percent, retained as permanent open space. This
criterion will be met.
2. Individually owned residential units that do not meet the
definition of overnight lodging in DCC 18.04.030 shall not
exceed two and one-half such units for each unit of visitor
oriented overnight lodging. Individually owned units shall be
considered visitor oriented lodging if they are available for
overnight rental use by the general public for at least 38
weeks per calendar year through one or more central
reservation and check in service(s) operated by the
destination resort or by a real estate property manager, as
defined in ORS 696.010.
a. The ratio applies to destination resorts which were
previously approved under a different standard.
FINDING: As explained above, the original resort was approved with a 2:1 ratio. Under
this application, the applicant proposes to modify the ratio to 2.5:1, in conformance with
this standard. Staff recommends a condition of approval requiring the Resort, at all
times, to comply with the 2.5:1 ratio. A condition of approval is warranted requiring all
OLUs to be available for overnight rental use by the general public for at least 38 weeks
per calendar year through one or more central reservation and check-in services,
operated by the destination resort or by a real estate property manager, as defined in
ORS 696.010.
E. Phasing. A destination resort authorized pursuant to DCC
18.113.060 may be developed in phases. If a proposed resort is to
247 -15 -000464 -CU - Caldera Springs 46
be developed in phases, each phase shall be as described in the
CMP. Each individual phase shall meet the following requirements:
1 Each phase, together with previously completed phases, if
any, shall be capable of operating in a manner consistent
with the intent and purpose of DCC 18.113 and Goal 8.
2. The first phase and each subsequent phase of the destination
resort shall cumulatively meet the minimum requirements of
DCC 18.113.060 and DCC 18.113.070.
3. Each phase may include two or more distinct noncontiguous
areas within the destination resort.
FINDING: The applicant proposes to develop the resort in phases. Exhibits A-2 and A-
3 generally depict the phasing of the project, although there is no specific timeline for the
development of any particular phase, as development will largely depend on market
demand. The applicant indicates that the first phase is likely to include only housing,
with subsequent phases to include overnight lodging, additional recreational amenities
and resort core features. The minimum required meeting rooms, food and beverage
service, overnight lodging, and recreational facilities have already been developed in
connection with the initial build out of Caldera Springs. Although anticipated to be
developed in phases, all subsequent phases will be fully integrated into the Caldera
Springs community, resulting in the entire resort operating as a cohesive whole. As
shown in the site plans, the resort will be connected via open space area, roads, and
pedestrian and bike pathways. Existing resort amenities will be available to the
annexation property. The record shows no intent to develop the property into more
distinct, non-contiguous areas. This criterion is met.
F. Destination resorts shall not exceed a density of one and one half
dwelling units per acre including residential dwelling units and
excluding visitor oriented overnight lodging.
FINDING: The applicant calculates total acreage of Caldera Springs and the annexation
property to be approximately 883 acres, not including the 125 -acre Wildlife Mitigation
Tract. At this size, the allowed density is 1,324 dwelling units. The total number of
residential dwelling units, excluding visitor oriented overnight lodging, proposed by the
applicant for both properties is 715 residential dwelling units, meeting this standard.
G. Dimensional Standards:
1. The minimum lot area, width, lot coverage, frontage and yard
requirements and building heights otherwise applying to
structures in underlying zones and the provisions of DCC
18.116 relating to solar access shall not apply within a
destination resort. These standards shall be determined by
the Planning Director or Hearings Body at the time of the
CMP. In determining these standards, the Planning Director
or Hearings Body shall find that the minimum specified in the
CMP are adequate to satisfy the intent of the comprehensive
plan relating to solar access, fire protection, vehicle access,
visual management within landscape management corridors
and to protect resources identified by LCDC Goal 5 which are
identified in the Comprehensive Plan. At a minimum, a 100 -
foot setback shall be maintained from all streams and rivers.
Rimrock setbacks shall be as provided in DCC Title 18. No lot
247 -15 -000464 -CU - Caldera Springs 47
for a single family residence shall exceed an overall project
average of 22,000 square feet in size.
FINDING: No natural streams, rivers, or rimrock exist on-site. This criterion allows the
Planning Director or Hearings Body to establish standards for the minimum lot area,
width, lot coverage, frontage, yard requirements, building heights, and solar access at
the time of the Conceptual Master Plan (CMP). The applicant proposes the same
Dimensional Standards that were approved with the existing Resort. Those standards
are as follows:
SINGLE FAMILY RESIDENTIAL
A. Height Regulations. No building or structure should be hereinafter erected,
enlarged, or structurally altered to exceed 30 feet in height, except as allowed
under DCC 18.120.040.
B. Lot Requirements.
1. Lot Area. Every lot shall have a minimum area of 6,000 square feet.
2. Every lot should have a minimum average width at the building site of 60
feet, except that a corner lot shall be a minimum of 70 feet.
3. Every lot shall have a minimum width at the street of 50 feet.
4. The front yard shall be a minimum of 20 feet.
5. The side yard shall be a minimum of ten feet.
6. The rear yard setback for properties which do not have a common area
adjoining the rear property line, shall be a minimum of 25 feet. The rear
yard setback is zero for properties with a rear property line which adjoins
a common area that is 50 feet or greater in depth. The rear yard setback
for properties which adjoin common areas less than 50 feet in depth shall
be calculated at six inches for every one foot less than 50 feet.
7. Lot Coverage. The maximum lot coverage by buildings and structures,
including decks and patios, shall be 40 percent of the lot area.
MULTI -FAMILY RESIDENTIAL
A. Height Regulations. No building or structure shall be hereinafter erected,
enlarged, or structurally altered to exceed 35 feet in height, except as allowed
under DCC 18.120.040.
B. Lot Requirements. The following lot requirements shall be observed.
1. Lot Area. No lot area requirements apply, other than the overall density
shall not exceed 12 dwelling units per acre.
2. Lot Width. Every lot shall have a minimum average width at the building
site of 50 feet.
3. Frontage. Every lot shall have a minimum width at the street of 30 feet.
4. Front Yard. The front yard shall be a minimum of ten feet.
5. Side Yard. The side yard shall be a minimum of five feet.
6. Rear Yard. The rear yard shall have a depth of not less than five feet.
The rear yard shall be increased by one-half foot for each foot by which
the building height exceeds 15 feet.
7. Lot Coverage. The maximum lot coverage by buildings and structures,
including decks and patios, shall be 45 percent of the total lot area.
8. All lot dimensional requirements may be waived for an approved zero lot
line project.
247 -15 -000464 -CU - Caldera Springs 48
9. Setbacks for townhouses, condominiums, zero lot line dwellings, and
apartments shall be determined at the time of site plan approval.
COMMERCIAL AND RECREATIONAL
A. Height Regulations. No building or structure shall be hereinafter erected,
enlarged or structurally altered to exceed 45 feet in height. Chimneys, spires,
belfries, domes, monuments, clock towers, look -out towers, smokestacks, flag
poles, radio antenna, and similar projections are not subject to building height
limitations.
B. Lot Area. No requirements.
C. Lot Width. No requirements.
D. Lot Depth. 100 feet
E. Front Yard. The front yard shall be a minimum of ten feet.
F. Side Yard. None, unless a side lot line adjoins a residential lot, and then the side
yard setback shall be a minimum of ten feet. The side yard setback from
residential lots shall be increased by one-half foot for each foot by which the
building height exceeds 20 feet.
G. Rear Yard. None, except for a rear lot line adjoining a residential lot, and then
the rear yard setback shall be a minimum of ten feet. The required rear yard
setback from residential lots shall be increased by one-half foot for each foot by
which the building height exceeds 20 feet.
H. Lot Coverage. No requirements.
PROPOSED OVERNIGHT LODGING COTTAGE LOTS:
A. Height Regulations. No building or structure shall be hereinafter erected,
enlarged or structurally altered to exceed 30 feet in height. Chimneys, spires,
belfries, domes, monuments, clock towers, look -out towers, smokestacks, flag
poles, radio antenna, and similar projections are not subject to building height
limitations.
B. Lot Area. No requirements.
C. Lot Width. No requirements.
D. Lot Depth. No requirements.
E. Frontage: No minimum road frontage requirements. Each lot shall have access
to required parking areas and driveways, and to a private resort road, via a
perpetual easement recorded for the benefit of the subject lot.
F. Front Yard. No requirements.
G. Side Yard. None, except for a side lot line adjoining a single-family residential
lot, and then the side yard shall be a minimum of ten feet. The required side yard
shall be increased by one-half foot for each foot by which the building height
exceeds 20 feet.
H. Rear Yard. None, except for a rear lot line adjoining a single-family residential
lot, and then the rear yard shall be a minimum of ten feet. The required rear yard
shall be increased by one-half foot for each foot by which the building height
exceeds 20 feet.
Lot Coverage. No requirements.
J Location of parking/driveways. Parking areas and driveways associated with
overnight lodging cottages may be clustered and located on adjacent lots and/or
common areas, and may span lot lines.
247 -15 -000464 -CU - Caldera Springs 49
SOLAR ACCESS
A. All structures within the destination resort shall be exempt from building setbacks
for the protection of solar access, exempt from solar height restrictions, and
exempt from solar access permits.
The standards associated with the LM Combining Zone are addressed above. Similar to
the finding made by the Hearings Officer in the Caldera Springs approval, staff believes
the setbacks identified above are sufficient to satisfy the intent of the comprehensive
plan for LM corridors except for limitations on building height. As detailed above, staff
recommends a condition of approval limiting building height to a maximum of 30 feet as
measured from natural grade for all structures subject to the visible LM standards.
The approved Caldera Springs CMP is exempt from the County's solar access
standards. The annexation property similarly requests an exemption from the County's
solar standards. The applicant argues that historically, solar access and solar property
right conditions have not been applied to destination resorts. The applicant points to
Tetherow, which was exempted from requirements of meeting solar setback
requirements, and to Pronghorn, where use of solar access similarly has been minimal.
As is the case with Caldera Springs and the annexation property, the applicant states
the design guidelines both encourage and require homes to be designed to emphasize
preservation of natural features and vegetation, recreation enjoyment, view corridors and
overall home design.
The applicant further argues that the state and county destination resort development
standards make compliance with solar conditions difficult or impossible. The applicant
points to the Deschutes County Destination Resort Ordinance which requires fifty
percent open space for the entire land tract, significant buffer areas, a mitigation tract
and a wildlife mitigation corridor. The applicant states that these "no -build" areas,
together with the predominant north -south orientation of the underlying property limit the
ability to fully incorporate solar standards. However, the applicant concludes that the
open spaces, buffers and wildlife mitigation corridors will provide solar protection for
homes on the perimeter of the proposed development and will provide solar access for
many of the resort lots.
As is the case with the original development of Caldera Springs, most proposed
development areas are oriented in a north to south configuration due to orientation of the
property and natural topography. This north to south configuration results in primary
solar access to the side of the proposed homes, minimizing opportunities to protect solar
access. Given the overall protection of views, open space and natural corridors
exceeding 50 percent of the site and the county's historical practices related to solar in
other resort approvals, the applicant believes that independent solar standards should
not apply to the individual lots.
2. Exterior setbacks.
a. Except as otherwise specified herein, all development
(including structures, site obscuring fences of over
three feet in height and changes to the natural
topography of the land) shall be setback from exterior
property lines as follows:
247 -15 -000464 -CU - Caldera Springs 50
i. Three hundred fifty feet for commercial develop-
ment including all associated parking areas;
ii. Two hundred fifty feet for multi family
development and visitor oriented
accommodations (except for single family
residences) including all associated parking
areas;
iii. One hundred fifty feet for above grade
development other than that listed in DCC
18.113.060(G)(2)(a)(i) and (ii);
iv. One hundred feet for roads;
v. Fifty feet for golf courses; and
vi. Fifty feet for jogging trails and bike paths where
they abut private developed lots and no setback
for where they abut public roads and public
lands.
b. Notwithstanding DCC 18.113.060(G)(2)(a)(iii), above
grade development other than that listed in DCC
18.113.060(G)(2)(a)(i) and (ii) shall be set back 250 feet
in circumstances where state highways coincide with
exterior property lines.
c. The setbacks of DCC 18.113.060 shall not apply to
entry roadways and signs.
FINDING: The record demonstrates that these setbacks can be met. Staff
recommends that any berms proposed on-site should also be subject to criterion iii. The
Hearings Officer agrees.
H. Floodplain requirements. The floodplain zone (FP) requirements of
DCC 18.96 shall apply to all developed portions of a destination
resort in an FP Zone in addition to any applicable criteria of DCC
18.113. Except for floodplain areas which have been granted an
exception to LCDC goals 3 and 4, floodplain zones shall not be
considered part of a destination resort when determining
compliance with the following standards;
1. One hundred sixty acre minimum site;
2. Density of development;
3. Open space requirements.
A conservation easement as described in DCC Title 18 shall be
conveyed to the County for all areas within a floodplain which are
part of a destination resort.
FINDING: No lands zoned Flood Plain exist on-site. These criteria do not apply.
The Landscape Management Combining Zone (LM) requirements of
DCC 18.84 shall apply to destination resorts where applicable.
FINDING: The applicable LM criteria are addressed above.
J. Excavation, grading and fill and removal within the bed and banks of
a stream or river or in a wetland shall be a separate conditional use
subject to all pertinent requirements of DCC Title 18.
247 -15 -000464 -CU - Caldera Springs 51
FINDING: No natural streams, rivers or wetlands exist on-site. A separate conditional
use permit is not required.
K. Time share units not included in the overnight lodging calculations
shall be subject to approval under the conditional use criteria set
forth in DCC 18.128. Time share units identified as part of the
destination resort's overnight lodging units shall not be subject to
the time share conditional use criteria of DCC 18.128.
FINDING: No time share units are proposed as part of the annexation property. This
criterion does not apply.
L. The overnight lodging criteria shall be met, including the 150 -unit
minimum and the 2-112 to 1 ratio set forth in DCC 18.113.060(D)(2).
1. Failure of the approved destination resort to comply with the
requirements in DCC 18.113.060(L)(2) through (6) will result in
the County declining to accept or process any further land
use actions associated with any part of the resort and the
County shall not issue any permits associated with any Tots
or site plans on any part of the resort until proof is provided
to the County of compliance with those conditions.
FINDING: As noted previously, the existing Resort includes 152 constructed OLUs.
The applicant proposes to modify the destination resort approval such that the 2.5:1 ratio
applies across the existing and proposed development. A condition of approval to
ensure compliance is warranted.
2. Each resort shall compile, and maintain, in perpetuity, a
registry of all overnight lodging units.
a. The list shall identify each individually -owned unit that
is counted as overnight lodging.
b. At all times, at least one entity shall be responsible for
maintaining the registry and fulfilling the reporting
requirements of DCC 18.113.060(L)(2) through (6).
c. Initially, the resort management shall be responsible
for compiling and maintaining the registry.
d. As a resort develops, the developer shall transfer
responsibility for maintaining the registry to the
homeowner association(s). The terms and timing of
this transfer shall be specified in the Conditions,
Covenants & Restrictions (CC&Rs).
e. Resort management shall notify the County prior to
assigning the registry to a homeowner association.
f. Each resort shall maintain records documenting its
rental program related to overnight lodging units at a
convenient location in Deschutes County, with those
records accessible to the County upon 72 hour notice
from the County.
g. As used in this section, "resort management"
includes, but is not limited to, the applicant and the
applicant's heirs, successors in interest, assignees
other than a home owners association.
247 -15 -000464 -CU - Caldera Springs 52
FINDING: Staff notes that the existing Resort was modified under MC -13-5 to add the
registry requirements, which did not exist under the previous destination resort criteria.
A condition of approval to ensure compliance with the registry requirements is
warranted.
3. An annual report shall be submitted to the Planning Division
by the resort management or home owners association(s)
each February 1, documenting all of the following as of
December 31 of the previous year:
a. The minimum of 150 permanent units of overnight
lodging have been constructed or that the resort is not
yet required to have constructed the 150 units;
b. The number of individually -owned residential platted
Tots and the number of overnight -lodging units;
c. The ratio between the individually -owned residential
platted lots and the overnight lodging units;
d. The following information on each individually -owned
residential unit counted as overnight lodging.
i. Who the owner or owners have been over the
last year;
ii. How many nights out of the year the unit was
available for rent;
iii. How many nights out of the year the unit was
rented out as an overnight lodging facility
under DCC 18.113;
iv. Documentation showing that these units were
available for rental as required.
P. This information shall be public record subject to ORS
192.502(17).
FINDING: A condition of approval to ensure compliance is warranted.
4. To facilitate rental to the general public of the overnight
lodging units, each resort shall set up and maintain in
perpetuity a telephone reservation system.
FINDING: A condition of approval to ensure compliance is warranted.
5. Any outside property managers renting required overnight
lodging units shall be required to cooperate with the
provisions of this code and to annually provide rental
information on any required overnight lodging units they
represent to the central office as described in DCC
18.113.060(L)(2) and (3).
FINDING: A condition of approval to ensure compliance is warranted.
6. Before approval of each final plat, all the following shall be
provided:
a. Documentation demonstrating compliance with the 2-
1/2 to 1 ratio as defined in DCC 18.113.060(D)(2);
247 -15 -000464 -CU - Caldera Springs 53
b. Documentation on all individually -owned residential
units counted as overnight lodging, including all of the
following:
i. Designation on the plat of any individually -
owned units that are going to be counted as
overnight lodging;
ii. Deed restrictions requiring the individually -
owned residential units designated as overnight
lodging units to be available for rental at least
38 weeks each year through a central
reservation and check-in service operated by
the resort or by a real estate property manager,
as defined in ORS 696.010;
iii. An irrevocable provision in the resort
Conditions, Covenants and Restrictions
("CC&Rs) requiring the individually -owned
residential units designated as overnight
lodging units to be available for rental at least
38 weeks each year through a central
reservation and check-in service operated by
the resort or by a real estate property manager,
as defined in ORS 696.010;
iv. A provision in the resort CC&R's that all
property owners within the resort recognize
that failure to meet the conditions in DCC
18.113.060(L)(6)(b)(iii) is a violation of
Deschutes County Code and subject to code
enforcement proceedings by the County;
v. Inclusion of language in any rental contract
between the owner of an individually -owned
residential unit designated as an overnight
lodging unit and any central reservation and
check in service or real estate property
manager requiring that such unit be available
for rental at least 38 weeks each year through a
central reservation and check-in service
operated by the resort or by a real estate
property manager, as defined in ORS 696.010,
and that failure to meet the conditions in DCC
18.113.060(L)(6)(b)(v) is a violation of Deschutes
County Code and subject to code enforcement
proceedings by the County.
FINDING: Staff notes that the existing Resort was modified under MC -13-5 to remove
the previous standard which required 45 -week rental availability, and replace it with
today's standard of 38 weeks. A condition of approval to ensure compliance is
warranted.
4. Section 18.113.070. Approval Criteria.
In order to approve a destination resort, the Planning Director or Hearings
Body shall find from substantial evidence in the record that:
247 -15 -000464 -CU - Caldera Springs 54
A. The subject proposal is a destination resort as defined in DCC
18.040.030.
FINDING: The existing Caldera Springs resort and proposed annexation includes and
will include all of the components identified for a destination resort under DCC
18.04.030. This criterion will be met.
B. All standards established by DCC 18.113.060 are or will be met.
FINDING: As the findings above show, all standards established by DCC 18.113.060
will be met or can be met with the recommended conditions of approval.
C. The economic analysis demonstrates that:
1. The necessary financial resources are available for the
applicant to undertake the development consistent with the
minimum investment requirements established by DCC
18.113.
FINDING: The Economic Feasibility Analysis, prepared by Peterson Economics and
submitted as Exhibit 0, demonstrates that the applicant has the necessary financial
resources to meet the minimum development and investment standards of DCC 18.113.
2. Appropriate assurance has been submitted by lending
institutions or other financial entities that the developer has
or can reasonably obtain adequate financial support for the
proposal once approved.
FINDING: A Letter of Financial Commitment and Developer Resume, submitted as
Exhibit P, demonstrate that the applicant has or reasonablycan obtain adequate
financial support for the project. Staff agrees and believes this criterion will be met.
3. The destination resort will provide a substantial financial
contribution which positively benefits the local economy
throughout the life of the entire project, considering changes
in employment, demands for new or increased levels of
public service, housing for employees and the effects of loss
of resource land.
FINDING: The feasibility analysis discusses the financial contributions that the resort
will make to the local economy, including the contributions to the construction industry,
employee base, payroll and benefits package, property tax, and transient room tax
revenues for Deschutes County.
4. The natural amenities of the site considered together with the
identified developed recreation facilities to be provided with
the resort, will constitute a primary attraction to visitors,
based on the economic feasibility analysis.
FINDING: There are no outstanding natural amenities on the site that are likely to
constitute a primary attraction to visitors. The feasibility analysis indicates that visitors
will be attracted to the resort based upon the high-quality recreational facilities, scenic
vistas, proximity to the Bend urban area, Mt. Bachelor, and the Deschutes River.
247 -15 -000464 -CU - Caldera Springs 55
D. Any negative impact on fish and wildlife resources will be
completely mitigated so that there is no net Toss or net degradation
of the resource.
FINDING: Staff provided the following analysis of the applicant's CMP with respect to
this criterion:
The applicant's burden of proof Exhibit C is a Wildlife Habitat Evaluation
Procedure and Mitigation Plan ("Wildlife Report") for the Caldera Springs
Annexation Development. The Wildlife Report was prepared by Dr. Wendy
Wente of Mason, Bruce and Girard, in consultation with ODFW. The applicant
states that ODFW's recommendations were incorporated into the Wildlife Report.
The Wildlife Report addresses two primary goals. First, it describes and
evaluates the habitat and wildlife resources on the property and immediate
vicinity. Second, through an extensive Habitat Evaluation Procedure ("HEP
Analysis") it characterized the floral and faunal constituents of each habitat type,
as well as topography, aspect, and other habitat elements. The HEP Analysis
described the salient characteristics of each habitat type, such as vegetative
components, structure, age class distribution, landscape position, topography,
elevation, hydrologic regime, and management history of the property. The HEP
Analysis results include the pre -development wildlife habitat conditions,
anticipated post -development conditions, and proposed enhancements and
mitigation measures intended to offset anticipated reductions of habitat quality
due to the project. The HEP Analysis concludes that the applicant can mitigate
all negative impacts on fish and wildlife resources. Proposed mitigation includes
the following:
• Preservation of a 125 -acre Wildlife Mitigation Tract located between the
annexation property and the railroad
• Monitoring and eradication of weeds and non-native plants where
possible
• Preservation of live and dead ponderosa pine trees where possible
• Retention of downed logs and snags where possible
• Prohibiting fire wood cutting or vegetation alteration beyond that
prescribed as management for increased habitat value
• Retention of rock outcrops where possible
• Installation and maintenance of nest boxes
• Prohibiting new fences within the development
• Posting and enforcement of leash laws
• Prohibiting livestock on the property
• Prohibiting recreational off-road motor vehicle use in the open space
areas
• Requiring a 100 -foot setback for all lots adjacent to open space
• Initiating a program for proper garbage storage and disposal
• Initiating an educational program for residents focused on native wildlife
populations using the subject property
Staff also recommended that the applicant respond to the guidance on how to assure
the mitigation measures are successful identified in the recent Hearings Officer's
247 -15 -000464 -CU - Caldera Springs 56
decision on The Tree Farm.5 In the Board of County Commissioners ("Board") approval6
of The Tree Farm, the Board affirmed the Hearings Officer's identification of required
wildlife management plan components as follows:
A. The wildlife plan must include an action plan that identifies specific roles and
responsibilities for the developer and homeowners association ("HOA"), and
describes how and when the developer will hand off responsibility to the HOA.
B. What specific measures will be undertaken consistent with the wildfire plan to
assure more aggressive fuel reduction measures, if any, will not interfere with
wildlife use of the 125 -acre Wildlife Mitigation Tract, and the east -west travel
corridor along Vandevert Road?
The Hearings Officer agrees with Staff's analysis above and that the additional
refinements identified in The Tree Farm should be addressed. That analysis appears
below.
On November 10, 2015 the applicant submitted a Wildlife Habitat Evaluation Procedure
and Mitigation Plan ("HEP") that refines the initial CMP. In addition to the evaluation, the
HEP contains an "Integration of Habitat Management with Wildlfire Protection" plan,
"Wildlife Habitat Conservation and Mitigation Measures," including an action plan, and
explanation of the mitigation site set aside, and an enforcement section.
In their December 15, 2015 submission, COLW does not comment on the HEP or make
any arguments about its adequacy. Instead, COLW argues that the Court of Appeals
decision in Gould v. Deschutes County requires that the only way to meet DCC
18.113.070(D) is through a 1:1 mitigation tract. COLW also provides some information
and argument about the state of the deer migration range in the area and the health of
mule deer populations in the vicinity of the subject property.
In their December 29, 2015 letter, the applicant counters that neither DCC 18.113.070
nor Gould mandates a 1:1 mitigation tract. The applicant's November 10, 2015
submission states that the court in Gould allowed a HEP approach to complying with
DCC 18.113.070(D). The applicant also argues generally that the design of the
expansion area will leave much of the developed part of the resort open for some level
of habitat use by mule deer even though those areas will be partially impacted.
The Hearings Officer concludes that the HEP and the mitigation plan are sufficient to
satisfy DCC 18.113.070(D). First, the record is clear that Oregon Department of Fish
and Wildlife reviewed and approved the HEP, and that the applicant incorporated all of
ODFW's recommendations. That evidence is not disputed by any party and constitutes
substantial evidence that ODFW concluded that the HEP could completely mitigate
negative impacts on fish and wildlife resources including habitat impacts. Second,
COLW's arguments do in any way address the HEP or offer reasons why it is deficient or
in error. Without such argument it is very difficult for the Hearings Officer to understand
why ODFW's conclusions should not be deferred to. Third, the Hearings Officer agrees
that Gould does not mandate a 1:1 mitigation tract, and certainly does not stand for the
5 The Tree Farm, land use file numbers 247 -15 -000242 -CU, 243 -TP, 244 -CU, 245 -TP, 246 -CU, 247 -TP,
248 -CU, 249 -TP, 250 -CU, 251 -TP
6 Board Document Nos. 2015-638, 639, 640, 641 and 642.
247 -15 -000464 -CU - Caldera Springs 57
proposition that an acre for acre replacement of habitat is the only way to meet the "no
net Toss" standard. Seeing no credible claims of insufficiency in the applicant's HEP and
mitigation plan, the Hearings Officer finds that it satisfies this criterion.
As for the questions Staff recommended from The Tree Farm decision, the Integration of
Habitat Management with Wildlfire Protection plan identified above contains multiple
specific actions and treatments of vegetation and fuels in the developed area. Those
actions and treatments also harmonize the wildfire plan, which is discussed below, with
the actions necessary to implement the HEP mitigation plan. The plan is detailed and
specific enough to adequately answer Question B above.
As for Question A, the November 10, 2015 HEP analysis contains a specific "Action Plan
for Managing Wildlife Habitat" that contains 18 separate actions that must be taken to
preserve habitat functions in the development. Separately, there are rules imposed on
the treatment of the 125 acre mitigation tract to ensure its protection. The HEP includes
an "Implementation, Monitoring, and Enforcement of the Wildlife Conservation
Measures" section that states that the conservation measures: 1) will be enforced
through the CC&Rs, 2) will be reviewed through an audit every 3-5 years, and 3) that the
developer and/or the Caldera Springs Owners Association will be responsible for
meeting the County Code and conditions of any approval.
The Hearings Officer concludes that the mitigation measures identified in the HEP are
specific enough to be implemented in a way that the County and the public can evaluate,
and will enforceable through the CC&Rs and County code enforcement in a rigorous
enough way to provide certainty that they will be implemented and maintained over time.
This criterion ,s met.
E. Important natural features, including but not limited to significant
wetlands, riparian habitat, and landscape management corridors will
be maintained. Riparian vegetation within 100 feet of streams, rivers
and significant wetlands will be maintained. Alterations to important
natural features, including placement of structures, is allowed so
long as the overall values of the feature are maintained.
FINDING: Neither natural springs nor surface waters exist. However, the applicant
indicates that an elevated groundwater table may be visible during extremely wet
weather conditions during spring months. The burden of proof states that no major
geographic features exist on the subject property. No significant rocky outcrops, no
particular vista points, and no steep visible hillsides exist. No significant wetlands were
identified in the record. This criterion is met.
F. The development will not force a significant change in accepted
farm or forest practices or significantly increase the cost of
accepted farm or forest practices on surrounding lands devoted to
farm or forest use.
FINDING: Property to the north, west and south are developed, or partially developed,
with residential and commercial uses. No forestry or agricultural uses are present on
these properties. Consequently, staff found the proposal will not force a significant
247 -15 -000464 -CU - Caldera Springs 58
change in accepted farm or forest practices or force a significant increase the cost of
accepted farm or forest practices on these properties.
The applicant indicates the only property in the "surrounding lands" devoted to forest use
is the USFS property east of the Burlington Northern Railroad main line and east of the
125 -acre Wildlife Mitigation Tract. At the present time, the USFS property is not being
used for timber production. The applicant argues that given the separation of the USFS
property and the annexation property by the railroad and the Wildlife Mitigation Tract,
there is no evidence to suggest that the development with have any impact on how the
USFS manages the property, let alone force a significant change in or costs of forest
practices. Staff notes that no comments were received from the USFS regarding
concerns about impacts to forest practices on USFS lands. This criterion is met.
G. Destination resort developments that significantly affect a
transportation facility shall assure that the development is
consistent with the identified function, capacity and level of service
of the facility. This shall be accomplished by either:
1. Limiting the development to be consistent with the planned
function, capacity and level of service of the transportation
facility;
2. Providing transportation facilities adequate to support the
proposed development consistent with Oregon
Administrative Rules chapter 660, Division 12; or
3. Altering land use densities, design requirements or using
other methods to reduce demand for automobile travel and to
meet travel needs through other modes.
A destination resort significantly affects a transportation
facility if it would result in levels of travel or access that are
inconsistent with the functional classification of a facility or
would reduce the level of service of the facility below the
minimum acceptable level identified in the relevant
transportation system plan.
a. Where the option of providing transportation facilities
is chosen, the applicant shall be required to improve
impacted roads to the full standards of the affected
authority as a condition of approval. Timing of such
improvements shall be based upon the timing of the
impacts created by the development as determined by
the traffic study or the recommendations of the
affected road authority.
b. Access within the project shall be adequate to serve
the project in a safe and efficient manner for each
phase of the project.
FINDING: The applicant submitted a transportation impact analysis ("TIA") prepared by
Kittelson and Associates, and attached as Exhibit D. Although not required by the above
standard, the applicant states the TIA was prepared to meet the above requirements,
and the requirements of the Transportation Planning Rule and the requirements of
ORS 197.460(4). Prior to development and study under the TIA, the applicant consulted
with ODOT and Deschutes County, resulting in an agreed-upon scoping memorandum
and analysis. The TIA concludes that all study intersections will continue to operate
247 -15 -000464 -CU - Caldera Springs 59
within applicable performance standards through the 2030 horizon year with the addition
of all trips associated with the resort proposal. Furthermore, the TIA concludes that no
off-site mitigation measures are required to accommodate the construction of the resort
as proposed and that it may be developed consistent with the identified function,
capacity and level of service all affected facilities.
During the notice of application comment period, ODOT identified a discrepancy
between the proposal and the TIA. The annexation includes new access onto Vandevert
Road. The TIA indicated that this access was for emergency use only. After the
applicant was notified of this issue, Kittleson and Associates amended the TIA to
analyze the proposed new access onto Vandevert Road. Kittleson and Associates
concluded that the impact of the amendment was minor with no change in findings and
no adverse impact to Level of Service (LOS) for affected road facilities. The Deschutes
County Senior Transportation Planner agreed with Kittleson's conclusions that the
proposed annexation will not result in a significant negative impact to a transportation
facility.
The applicant submitted a final TIA to respond to public and agency comments related to
transportation impacts. The final TIA includes an updated seasonal factor for traffic
volumes. With respect to concerns regarding crashes, the final TIA concludes that the
Vandevert/Highway 97 intersection can present difficult decision making for drivers. For
this reason, traffic should be routed to the Century Drive interchange for northbound trips
from the annexation property to limit left -turns at the Vandevert/Highway 97 intersection.
The final TIA concludes that in the horizon years of 2030 and 2035, the
Vandevert/Highway 97 intersection will exceed ODOT's mobility standard. As a result,
the final TIA proposes three mitigation options:
1) Restricting the Vandevert Road access to construction traffic only;
2) Restricting left -out movements from the Vandevert Road access; or
3) Installation of a raised median along Highway 97 to enforce right -in and right -out
access.
ODOT states that it is satisfied that the project will not adversely affect the operation of
the US 97 intersection at Vandevert with the proposed mitigation. The proposed
mitigation is to limit the Vandevert access to construction traffic only or to restrict
outbound left -turn movements until such time as the Vandevert connection to US 97 is
closed or restricted. Restricting outbound left -turns would be Tess effective and ODOT
would request the opportunity to review the turn -restriction design prior to it being
permitted. The county's Senior Transportation Planner, Peter Russell, states that he
knows of no design that will successfully and consistently restrict a left -out movement
from Vandevert Road. For this reason, the county recommends the Vandevert access
be open to construction traffic only and then become a gated, emergency -only access
until Vandevert is disconnected from Highway 97 or the Spring River/Century Drive
roundabout is constructed.
Regarding a raised median along Highway 97, ODOT states that it is open to
discussions to close or restrict access to the US 97Nandevert intersection, but the
timing of that improvement is uncertain. As this facility is solely under the jurisdiction of
ODOT, the county provides no comments on this potential mitigation.
247 -15 -000464 -CU - Caldera Springs 60
The final TIA also concludes that the Spring River/Century Drive intersection will exceed
the county's Level of Service ("LOS") D standard in horizon years 2030 and 2035. The
county's Transportation System Plan ("TSP") identifies the construction of a single -lane
roundabout at this intersection at an expected cost of approximately $900,000. Mr.
Russell notes that System Development Charges ("SDC") likely to be assessed to the
developer will be approximately $1.69 million to $1.84 million. Per staffs conversation
with the Road Department, given the identification of the required improvement and the
collection of SDCs, the county believes there is a reasonable expectation that the
roundabout will be constructed at the time it is needed. This additional evidence in
combination with Staffs analysis is sufficient to show compliance with these criteria.
The additional information provided by the applicant refining the TIA is also discussed in
the findings for DCC 18.113.050(B)(2) above. Those findings are incorporated here by
this reference. These criteria are met.
H. The development will not create the potential for natural hazards
identified in the County Comprehensive Plan. No structure will be
located on slopes exceeding 25 percent. A wildfire management
plan will be implemented to ensure that wildfire hazards are
minimized to the greatest extent practical and allow for safe
evacuation. With the exception of the slope restriction of DCC
18.113.070, which shall apply to destination resorts in forest zones,
wildfire management of destination resorts in forest zones shall be
subject to the requirements of DCC 18.40.070, where applicable, as
to each individual structure and dwelling.
FINDING: The Hearings Officer addresses this criterion below. Prior to that discussion,
a short response to COLW's arguments regarding wildfire is appropriate here. COL'VV's
December 15, 2015 submission contains a section stating that the wildland fire resort
criteria have not been met. However, review of that section leaves the Hearings Officer
with the conclusion that no violation of law or failure to address an applicable criterion
has been cited by COLW. While the section does a fine job of identifying the existing
wildfire threats, and the sometimes grave conditions that promote wildfire in the vicinity,
there is no connection between those recitations and the applicable criterion above.
Importantly, COLW does not challenge the specific provisions of the WMP, nor does
COLW address the applicant's supplemental testimony and evidence in the November
10, 2015 submission. As such, the Hearings Officer concludes that the findings below
both sufficiently address the applicable criterion and rebut COLW's allegation that the
WMP is insufficient.
The applicant's Exhibit M is the Wildfire Management Plan ("WMP"), prepared by Jeff
Pendleton, a retired USFS Wildland Fire Consultant. The WMP was prepared in
consultation with Deschutes County Forester, Ed Keith, and Alison Green of Project
Wildfire. The applicant states that all recommendations of the County Forester and Ms.
Green were incorporated into the report. Pursuant to the WMP, the applicant concludes
that all wildfire hazards have been minimized to the greatest extent practicable, and the
three evacuation routes, with exits on the north, west and south sides of the project,
allow for safe evacuation of the property in the event of wildfire. The proposal does not
include development on slopes exceeding 25%.
247 -15 -000464 -CU - Caldera Springs 61
The WMP includes a number of key components. First, it imposes obligations for
wildfire management on the homeowners and the homeowners' association.
Consequently, to the extent that an individual homeowner is not in compliance with a
specified requirement, the association has the right to enforce the obligation. Second,
the plan provides for ongoing treatment of the entire property in 5 -year cycles to assure
that every portion of the property is treated every five years. Third, the treatment
requirements (e.g., thinning, spacing, ladder fuel reduction) are specified in the plan and
proposed to be included as conditions of approval. Finally, all terms and conditions of
the WMP are binding through the imposition of design standards for individual lots, and
open space and Wildlife Mitigation Area standards through the CC&Rs. The proposed
conditions of approval in the WMP include the following:
• Maintain the entire resort within the La Pine Rural Fire Protection District or any
successor in interest to the fire protection district.
• Development of the annexation property shall be designed to maintain 1,000
gpm fire protection flow in addition to meeting the domestic needs of the resort.
Fire hydrants shall be placed along all rights of ways within the resort at spacing
approved by the LRFD Fire Chief.
• Prior to recordation of the final plat for each phase, the entire open
space/meadow/lakes area of that phase shall be treated through a combination
of thinning, removal of understory trees, pruning, removal of ladder fuels in order
to achieve an expected average flame length of 4 feet or less during 90th
percentile weather and fuel conditions. As a condition to recording the final plat,
the applicant shall provide written certification from the Deschutes County
Forester that the property phase has been so treated.
Throughout the life of the project the applicant shall be required to comply with
the identified treatment and identified rotation such that every area of the
annexation property is retreated and maintained every 5 years. The CC&Rs for
the property shall identify the homeowners' association as the party responsible
for the on-going treatment of the open space/meadow/lakes area.
• Prior to recordation of the final plat for each phase of development, a proportional
section of the wildlife area shall be treated through a combination of thinning,
removal of understory trees, pruning, removal of ladder fuels (i) in order to
achieve an expected average flame length of 4 feet or Tess during 90th percentile
weather and fuel conditions and/or (ii) for 80% of the treated area, thin trees to
an average of 20 feet' spacing, limbed to a height 6 feet. As a condition to
recording the final plat, the applicant shall provide written certification from the
Deschutes County Forester that the applicable portion of the property has been
so treated.
• Throughout the life of the project the applicant shall be required to comply with
the identified treatment and identified rotation set forth above on a rotating 5 -year
basis to ensure that the entire Wildlife Management Area is treated over a 15
year period. The CC&Rs for the property shall identify the homeowners'
association as the party responsible for the on-going treatment.
• In order to reduce the risk of ignition from the operation of the rail right-of-way the
applicant shall thin trees to 20 feet minimum spacing with removal of all mid -
height ladder fuels. This treatment shall be repeated every 5 years during the life
of the project.
247 -15 -000464 -CU - Caldera Springs 62
• The CC&Rs for the project shall incorporate the following standards which shall
be applicable to each lot and shall be enforceable the homeowners' association
for the resort:
All owners are required to adhere to the following planning and design considerations:
A. All structures shall include a 30' (or to the property line if less distance)
defensible space "firebreak" surrounding them, consisting of the following:
1. Dry grasses are to be kept mown to less than 4" from June 1 to October
1. Scattered bunchgrasses and other short or sporadic grasses are
excepted.
2. Trees overhanging structures to be essentially free of dead material.
3. Roofs, gutters and decks shall be maintained essentially free of
accumulations of pine needles and other debris from June 1 to October 1.
4. No trees or vegetation is allowed within 10 feet of chimney or stove
outlets.
5. Flammable mulches (bark mulch, wood chips, pine needles, etc.) or dry
grasses or ground cover is not permitted within 5 feet of structures,
unless adjacent to areas of the structure with non-flammable siding.
6. Bitterbrush and manzanita shall be removed entirely.
7. On pines and other flammable trees, branches shall be removed up to a
minimum of six (6) feet and a maximum of eight (8) feet or to three times
the height of flammable vegetation (dry grass, brush) remaining within 3
feet of tree drip lines. On pines and other flammable trees shorter than
twenty (20) feet, only the branches from the lower one-third (1/3) of the
tree shall be removed. All trees shall be maintained substantially free of
deadwood. Dead branches shall be removed to a minimum height of ten
(10) feet.
B. All chimneys shall be equipped with UL or I.B.C.U. approved spark arrestor. No
outdoor fire pits or fireplaces will be allowed. Only lidded barbeque grills will be
allowed for outdoor cooking.
C. Decks constructed of wood and greater than 12" above the ground must be kept
clear of dead vegetative materials and other highly combustible items underneath
them.
D. Vegetation on the lot shall be developed and maintained by the Owner in
accordance with the requirements of other rules established by the Association
for compliance with Firewise standards. Emphasis is on the use of fire resistive
species within the building envelope. All grass and landscaped areas within the
building envelope of each Lot must be irrigated.
E. Outside storage of firewood is prohibited.
Firewise Home Construction Requirements:
A. Driveways shall be constructed of asphalt or concrete pavers. All trees within 15
feet of the centerline of the driveway shall be limbed to provide at least 14 feet
vertical clearance above the driveway surface.
B. Only fire resistant approved roofing materials such as concrete shingles, slate,
clay tile, or high relief "presidential" style asphalt composition shingles may be
used. Non -reflective metal roofs may be approved by the Design Review
Committee on a case by case basis.
247 -15 -000464 -CU - Caldera Springs 63
C. All chimneys are to have roof saddles, downdraft preventers, and spark
arresters.
D. Plastic or other low melting point skylights are prohibited.
E. All window glass shall be double paned, and all windows having an area greater
than 35 square feet shall be tempered glass.
F. All exterior vent openings in structures and open spaces under combustible
decks (if less than 12" clearance above the ground) must be shielded with non-
combustible, corrosion resistive screening with 1/4" maximum clear openings.
The WMP imposes clear standards on the development and identifies the party
responsible for implementing the standard. The standards will be imposed as conditions
of approval. Should a homeowner and the association both fail to comply with the
conditions of approval, the County always retains its police powers to enforce the
conditions of approval. Lastly, as with Caldera Springs, the applicant states that the
annexation property will be recognized as a Firewise Community.
With respect to Firewise Community recognition, staff recommended, and the Hearings
Officer agrees, that a condition of approval requiring the homeowners association to
submit proof of Firewise recognition to the Planning Division annually from the date of
first recognition is warranted. Additionally, this same requirement should be added to
the CCRs for the homeowners association.
With respect to adequacy of the WMP, the Hearings Officer's decision in The Tree Farm
identified a number of items that must be detailed in a wildfire plan for it to be adequate.
The Board affirmed this methodology. Staff concluded, and the Hearings Officer agrees,
that it is appropriate to apply the same standards to this application where appropriate.':
A. Identify the building envelope for each lot, the extent and nature of the defensible
space around each structure, and fire fuel treatments on the building envelope
and the rest of the lot
FINDING: Pages 7 and 8 of the WMP details a number of planning and design
considerations, including specific measures that will be employed within a 30 -foot
defensible space area surrounding all proposed structures. In the November 10, 2015
submission, the applicant supplemented the WMP with additional explanation of Design
Guidelines that will apply to fire protection treatments within 30 feet of all structures.
Section 5.14 of those guidelines imposes restrictions on trees, tree types, grasses,
overhanging branches, roofs, and general requirements for development to comply with
the Firewise standards. This information, and in consideration that the building
envelopes must be located within 300 feet of all roads, is specific enough to understand
how the defensible space around future dwellings will reduce wildfire hazard.
B. Identify the fuel treatment, if any, on open space and what impact it will have on
that open space
For The Tree Farm, the Hearings Officer determined that the wildfire management plan for that project
must identify fuel treatment on slopes adjacent to residential lots. Because there are no slopes greater
than 25 percent on the subject property, this Hearings Officer did not include this component for
analysis.
247 -15 -000464 -CU - Caldera Springs 64
FINDING: Pages 5-7 of the WMP identify fuel treatment measures proposed within
open spaces and the Wildlife Management Area, including thinning of trees to provide
crown separation, removal of understory trees, pruning of trees to remove ladder fuels,
and mastication (mowing) or removal of ground vegetation to reduce potential surface
fire spread. The WMP notes that a scheduled rotation of maintenance treatments
throughout the Resort's common areas is currently being practiced.
Within the Wildlife Management Area, the WMP states that fuel treatments should be
designed to maintain a diversity of forest structure providing forage as well as hiding
cover. The WMP identifies selective thinning of smaller trees encroaching into open
areas to maintain a break in the aerial fuel profile. Treatment will include hand thinning
and mechanical applications in a patch work rotation to provide desired forest diversity.
The WMP identifies spot treatment of dead fuels, which will also break up the continuity
of the fuel profile. Finally, the WPM suggests maintenance of the two track road access
in the wildlife area, by pruning back vegetation, to provide firebreaks, control features,
and suppression resource mobility.
The findings for Question A above are supportive of this criterion as well and are
adopted here by reference. Together those findings and the information in the WMP
reasonably address Question B.
C. Identify whether and where decks and outbuildings would be permitted on each
lot.
FINDING: Page 8 of the WMP states that decks constructed of wood and greater than
12" above the ground must be kept clear of dead vegetative materials and other highly
combustible items underneath them. In addition, the November 10, 2015 submission
w will limn 150
States that any deck over 3' in height VJi�i be limited to an aggregate square feet in
size.
D. What specific, identified NFPA standards apply to the proposed annexation, and
what construction methods and building materials will be required for each
structure to meet NFPA standards
FINDING: Pages 8 and 9 of the WMP include specific construction methods and
building materials for structures. Staff questioned what specific NFPA standards, if any,
are relevant to the methods and materials identified in the WMP.
Page 9 of the WMP addresses NFPA standards generally. The WMP states that the
proposed annexation is more urban in nature than the NFPA suburban focused
guidelines and, therefore, the NFPA guidelines are not directly applicable to the
property. The WMP notes that NFPA standards are based on residential population
densities of less than 1,000 persons per square mile, while the Caldera Springs
development will have a density in excess of 1,500 persons per square mile.
Additionally, the Resort will have a full fire hydrant system and two fire departments
within three miles of the property. Nevertheless, the WMP states that the proposed
annexation is largely in compliance with, and in some areas, exceeds the applicable
elements of the NFPA 1141. The WMP goes on to state that in cases where the local
standards are more restrictive than NFPA standards, the applicant will comply with the
more restrictive standard.
247 -15 -000464 -CU - Caldera Springs 65
The applicant's November 10, 2015 submission identifies NFPA standards 1141 and
1144 and explains how those sections will be met. There is no testimony or evidence in
the record indicating that those sections cannot be met. In addition, the applicant notes
that the building materials will be limited by the building code to those appropriate for fire
hazard areas.
E. Provide a detailed description of how and by whom the wildfire plan will be
implemented, monitored, and enforced, with particular attention to the transition
between the developer and the HOA
FINDING: Page 9 of the WMP discusses implementation and oversight. The
owner/developer of the annexation property will be responsible for the design,
infrastructure construction, and initial landscaping and treatment of forest vegetation.
Individual homesite construction will go through review by the Caldera Spring Design
Review Committee ("DRC") to ensure that Firewise Community principles are met.
Further, the Caldera Springs Owners Association will be budgeted to undertake the
following tasks:
• Annual review of forest condition and health by a certified arborist
• Corrective action of deficiencies noted in each annual inspection
• Annual maintenance program to address ladder fuel reductions
Annual inspection and notices to home owners for removal of pine needles and
other vegetative buildup on roofs, rain gutter, decks and around homes
• Maintenance of landscape and control of ladder fuels and forest health on private
undeveloped lots
• Ongoing education and awareness of Firewise Community concerns through
quarterly newsletters sent to each lot owner
• Annual Firewise Community awareness meeting with owners features a guest
speaker
In the applicant's November 10, 2015 submission, responsibilities between the
developer, owners association and the Architectural Review Committee are explained.
The developer will act as the declarant under the CC&Rs until the development is turned
over to the owners association. Under the CC&Rs, a transition committee must be
formed for the turn over. Until that time, the developer and the ARC will be solely
responsible for implementing the WMP. Thereafter, responsibility for implementation will
reside with the owners association per the CC&Rs.
F. Provide a specific, mapped evacuation plan for the entire Caldera Springs
Resort, including directions for operation of any access gates
FINDING: Page 9 of the WMP addresses the evacuation plan and states that the two
primary evacuation points will be the existing access drive onto South Century Drive to
the west, and the proposed access drive onto Vandevert Road to the south. The
annexation property will also connect to an existing secondary evacuation point to the
north, which exits into the Sunriver Business Park. All access gates open, or will open,
automatically for exiting traffic. Each gate has and will have a Knox Box with keys to
override the closure system in the event of a power failure.
247 -15 -000464 -CU - Caldera Springs 66
The applicant's November 10, 2015 submission suggests that the CMP shows
evacuation routes in that there are only three routes of egress from the proposed resort.
The applicant proposes :to provide signage indicating evacuation routes within the
developed area. The Hearings Officer concludes that the CMP is a sufficient map, but
also that a condition requiring evacuation route signage is warranted.
G. Provide a detailed description of when and how residents and guests will be
informed of the wildfire plan requirements and the evacuation plan.
FINDING: Page 10 of the WMP indicates each lot owner will receive quarterly
newsletters detailing Firewise concerns, and that the DRC will hold an annual Firewise
awareness meeting with owners. The applicant states that each new homeowner will be
provided with this information upon purchase. As noted above, the Design Guidelines
for restrictions and treatments within 30 feet of each dwelling will apply at all times. A
condition of approval will require evacuation route signage. The Hearings Officer
concludes that these measures in combination will be sufficient to address this criterion.
Adequate public safety protection will be available through existing
fire districts or will be provided onsite according to the specification
of the state fire marshal. If the resort is located outside of an
existing fire district the developer will provide for staffed structural
fire protection services. Adequate public facilities to provide for
necessary safety services such as police and fire will be provided
on the site to serve the proposed development.
FINDING: Fire protection will be provided by the La Pine Rural Fire Protection District,
and police protection will be provided by the Deschutes County Sheriff. This criterion is
met.
J. Streams and drainage. Unless otherwise agreed to in writing by the
adjoining property owner(s), existing natural drainages on the site
will not be changed in any manner which interferes with drainage
patterns on adjoining property. All surface water drainage changes
created by the development will be contained on site in a manner
which meets all standards of the Oregon State Department of
Environmental Quality (DEQ). The erosion control plan for the
subject development will meet all standards of ORS 468.
FINDING: There are no natural drainages on the annexation property. Topography of
the site is generally level, with slopes predominantly between zero and six percent. The
native sandy soils on-site along with the significant amount of open space will promote
surface infiltration of most stormwater flow. The annexation property will be designed to
direct excess stormwater flow to the existing detention basins within the existing Resort.
For these reasons, the Stormwater Disposal and Erosion Control Master Plan, submitted
as Exhibit L, concludes that post -development stormwater flow rates will not exceed pre -
development flow rates, and that all stormwater flow will be contained with the Caldera
Spring Destination Resort. This criterion is met.
K. Adequate water will be available for all proposed uses at the
destination resort, based upon the water study and a proposed
water conservation plan. Water use will not reduce the availability
247 -15 -000464 -CU - Caldera Springs 67
of water in the water impact areas identified in the water study
considering existing uses and potential development previously
approved in the affected area. Water sources shall not include any
perched water table. Water shall only be taken from the regional
aquifer. Where a perched water table is pierced to access the
regional aquifer, the well must be sealed off from the perched water
table.
FINDING: As discussed above, the existing Sunriver water distribution system will be
extended to serve the annexation property. A condition of approval requiring the
applicant to provide a signed agreement for water service prior to Final Master Plan
approval is warranted. The findings addressing water supply under DCC 18.113 are
relevant here and are adopted here by this reference.
L. The wastewater disposal plan includes beneficial use to the
maximum extent practicable. Approval of the CMP shall be
conditioned on applicant's making application to DEQ for a Water
Pollution Control Facility (WPCF) permit consistent with such an
approved wastewater disposal plan. Approval shall also be
conditioned upon applicant's compliance with applicable Oregon
Administrative Rules regarding beneficial use of waste water, as
determined by DEQ. Applicant shall receive approval of a WPCF
permit consistent with this provision prior to applying for approval
for its Final Master Plan under DCC 18.113.
FINDING: The combined Sewage Collection and Water Systems Master Plan was
submitted as Exhibit I. In addition, Exhibit J is a Wastewater Treatment Review,
prepared by Vision Engineering. At the present time, the existing Sunriver
Environmental treatment plan is covered by an active Water Pollution Control Facility
("WPCF") permit. The existing Sunriver wastewater treatment system is designed and
operated to store treated sewage effluent during the winter months and irrigate at
agronomic rates during the summer months. Treated effluent is stored in an existing
reservoir at the northeast corner of the Sunriver resort during the winter months. The
treated effluent has been utilized to irrigate the northerly golf course for many decades.
That re -use of treated effluent will continue in the future. In addition, treated effluent is
utilized for irrigation of agricultural lands adjacent to the existing storage facility. Staff
found, and the Hearings Officer agrees, the wastewater disposal plan includes a
beneficial use, meeting this criterion.
The following conditions of approval are warranted:
A. The applicant shall provide a signed agreement for sewer service prior to Final
Master Plan approval.
B. The applicant shall receive approval of a WPCF permit that includes the
annexation property Prior to Final Master Plan approval,
With the proposed conditions of approval, this criterion is met.
M. The resort will mitigate any demands it creates on publicly owned
recreational facilities on public lands in the surrounding area.
247 -15 -000464 -CU - Caldera Springs 68
FINDING: The primary recreational facilities are developed on-site and will include
additional developed recreational facilities, including a pool, resort core areas and
developed recreational paths. The applicant argues that while resort users can be
expected to use public lands in the vicinity and private recreational facilities such as Mt.
Bachelor, there are no publicly owned recreational facilities located on public lands in the
surrounding area. The Hearings Officer cannot identify evidence in the record indicating
that the annexation will create undue demand on publicly owned recreational facilities on
public lands in the surrounding area. This criterion is met.
N. Site improvements will be located and designed to avoid or
minimize adverse effects of the resort on the surrounding land uses.
Measures to accomplish this may include establishment and
maintenance of buffers between the resort and adjacent land uses,
including natural vegetation and appropriate fences, berms,
landscaped areas and similar types of buffers; and setback of
structures and other developments from adjacent land uses.
FINDING: To the north is the Sunriver Business Park. To the east is the Burlington
Northern Railroad, with undeveloped USFS lands east of the railroad. Vandevert Road
borders the southern edge of the annexation property, with Vandevert Ranch, a
residential subdivision, to the south across Vandevert Road. South Century Drive
borders the southwestern portion of the annexation property, with the Crosswater
development to the west, across South Century Drive. With the exception of the
northwestern secondary access road, all site improvements within the annexation
property will observe a minimum setback of 150 feet. Within this setback, the applicant
proposes to retain existing tree cover and vegetation. Along the eastern, southern and
southwestern edges of the annexation property, the actual buffer from on-site
improvement to adjacent lands will be greater due the proposed Wildlife Mitigation Tract
to the east, Vandevert Road to the south, and South Century Drive the west. To further
mitigate adverse impacts from on-site development, the applicant has proposed to locate
developed recreational facilities in the central portion of the annexation property. This
criterion is met.
O. The resort will be served by an on-site sewage system approved by
DEQ and a water system approved by the Oregon State Health
Division except where connection to an existing public sewer or
water system is allowed by the County Comprehensive Plan, such
service will be provided to the resort.
FINDING: As discussed above, the applicant proposes to connect to existing public
sewer and water systems.
P. The destination resort will not alter the character of the surrounding
area in a manner that substantially limits, impairs or prevents
permitted or conditional uses of surrounding properties.
FINDING: As discussed above, the proposed resort will not limit the types of forestry
uses permitted on the USFS property to the east, including open space preservation,
recreational trails, wildlife habitat, and low intensity forest maintenance activities. The
proposal includes elements such as low intensity recreation, eating establishments, and
residential uses that are similar and complementary to existing uses at the adjacent
Crosswater development, Sunriver Business Park, existing Caldera Springs, and the
247 -15 -000464 -CU - Caldera Springs 69
Sunriver Resort. There is no evidence to suggest that development of the annexation
property will have any impact on the types of uses permitted both conditionally and as
outright permitted uses on surrounding properties. This criterion is met.
Q. Commercial, cultural, entertainment or accessory uses provided as
part of the destination resort will be contained within the
development and will not be oriented to public highways adjacent to
the property. Commercial, cultural and entertainment uses allowed
within the destination resort will be incidental to the resort itself. As
such, these ancillary uses will be permitted only at a scale suited to
serve visitors to the resort.
The commercial uses permitted in the destination resort will be
limited in type, location, number, dimensions and scale (both
individually and cumulatively) to that necessary to serve the needs
of resort visitors. A commercial use is necessary to serve the needs
of visitors if:
1. Its primary purpose is to provide goods or services that are
typically provided to overnight or other short term visitors to
the resort, or the use is necessary for operation, maintenance
or promotion of the destination resort; and
2. The use is oriented to the resort and is located away from or
screened from highways or other major through roadways.
FINDING: The commercial, cultural, entertainment and accessory uses provided as part
of the existing resort have been approved, are all internal to the resort, and satisfy this
standard. The applicant states that future commercial, cultural, entertainment and
accessory uses will be similarly located in the one or more resort core areas proposed
for the annexation property. The proposed core resort areas are all located internal to
the annexation property, and not oriented to any adjacent public roadways or highways.
This criterion is met.
R. A plan exists to ensure a transfer of common areas, facilities such
as sewer, water, streets and responsibility for police and fire
protection to owners' associations or similar groups if
contemplated. If such transfer is not contemplated, the owner or
responsible party shall be clearly designated. Adequate open
space, facility maintenance and police and fire protection shall be
ensured in perpetuity in a manner acceptable to the County.
FINDING: The record shows that the CCRs for the property provide the mechanism for
the eventual transfer of common areas, facilities such as sewer, water, streets to the
homeowners' association. Fire and police protection will be provided by public agencies,
so no transfer mechanism is required. This criterion is met.
S. Temporary structures will not be allowed unless approved as part of
the CMP. Temporary structures will not be allowed for more than 18
months and will be subject to all use and site plan standards of DCC
Title 18.
FINDING: The applicant states that no temporary structures are planned for the
annexation property.
247 -15 -000464 -CU - Caldera Springs 70
T. The open space management plan is sufficient to protect in
perpetuity identified open space values.
FINDNG: The Open Space Management Plan, submitted as Exhibit F, details open
space elements including natural common areas, lakes, ponds and streams, and pocket
parks and picnic areas. This plan indicates that the natural common areas, pocket parks
and small picnic areas will be dedicated to the homeowners association, with the
association responsible for operation and maintenance. The Open Space Management
Plan states the draft CCRs, submitted as Exhibit D, reference the dedication of common
areas and related restrictions or opportunities of use.
5. Section18.113.120 — Conservation Easements.
FINDING: At both the public hearings and in written testimony COLW argued that the
subject property is a tract of land that contains a Goal 5 resource site, and for that
reason must be placed in a conservation easement under DCC 18.113.120. COLW
states that 80% of the property lies in designated deer migration range which qualifies it
for this code provision.
The applicant counters that the provision is not applicable because it was not
implemented for Caldera Springs, and that the "resource" the County has elected to
protect is not the entire deer migration range, but a smaller subset of those areas —
"Deer Migration Priority Areas." The applicant provides sections of Deschutes County
Ordinance No. 2001-018 which state that destination resorts should be limited to areas
outside the Deer Migration Priority Areas.
Staff provided additional research in a December 22, 2105 memo. The memo explains
the distinction between the Bend/La Pine Deer Migration Corridor and Deer Migration
Priority Areas. While true that 80% of the subject property is within the migration
corridor, the County has elected to allow destination resorts in those areas, but not
within Deer Migration Priority Areas.
The record is not in dispute about where the proposed development is to be located.
The proposal is located outside any designated Deer Migration Priority Area. As the
findings above demonstrate, the portion within the migration corridor are subject to both
the destination resort standards and the County's conditional use criteria for the WA
combining zone.
A closer look at Ordinance No. 2001-018 (Exhibit 2 of applicant's December 22, 2015
letter) shows that the County made a decision to refine the comprehensive plan with
respect to Goal 5 resources. The findings in support of the ordinance state that the
amendment "identify land within the corridor but outside the Deer Migration Priority Area
as appropriate for destination resort development...." if those lands can otherwise meet
DCC 18.113. (See Findings, Section 13). This indicates a Goal 5 decision to "limit" uses
within the resource area and prohibit conflicts in others. Since no part of the proposed
development will occur in the Deer Migration Priority Area, as it is reserved as a
migration corridor, there is no purpose in also imposing a conservation easement upon
that portion of the subject property. The Hearings Officer concludes that DCC
18.113.120 is inapplicable in this instance.
247 -15 -000464 -CU - Caldera Springs 71
Dwelling Density — Since this section of the decision deals with restrictions in the
County's deer migration corridor, it is appropriate to address COLW's arguments
regarding dwelling density. COLW argues that Deschutes County Ordinance No. 92-040
requires dwelling density to be limited in order to allow 80% of the development area to
be left as open space. COLW does not identify the location of the alleged requirement
within the ordinance.
The applicant counters that COLW is misreading the ordinance and that any dwelling
density limits imposed by Ordinance 92-040 apply only in "deer winter range" and not to
deer migration corridors. The applicant also argues that the density limitations only
apply in the rural residential zone or multiple use agriculture zones. After reviewing
Ordinance 92-040, the Hearings Officer agrees that the dwelling density provisions only
apply to "deer winter range" and not to deer migration areas. The explanation provided
in the applicant's December 29, 2015 letter is sufficient to rebut COLW's argument.
F. CHAPTER 18.128, CONDITIONAL USES
1. Section 18.128.015. General Standards Governing Conditional Uses.
Except for those conditional uses permitting individual single family
dwellings, conditional uses shall comply with the following standards in
addition to the standards of the zone in which the conditional use is
located and any other applicable standards of the chapter:
FINDING: Although the proposed annexation will ultimately include single-family
dwellings, the subject conditional use permit does not request an individual single-family
dwelling. For this reason, the County's general conditional use criteria apply. Those
criteria were adequately addressed above.
A. The site under consideration shall be determined to be suitable for
the proposed use based on the following factors:
1. Site, design and operating characteristics of the use;
2. Adequacy of transportation access to the site; and
3. The natural and physical features of the site, including, but
not limited to, general topography, natural hazards and
natural resource values.
FINDING: in her decision on the original Caldera Springs approval, the Hearings
Officer made the following findings with respect to these criteria,
"This section of Chapter 18.128 includes general standards for the
permitting of a conditional use. The referenced general standards relate
to suitability, transportation, site characteristics, and compatibility. The
applicant has addressed these general standards in its application under
the provisions of DCC Chapter 18.113. The Hearings Officer concludes
the findings addressing DCC Chapter 18.113 are adequate to assure that,
in this case, DCC 18.125.015(A) is satisfied as well."
The Hearings Officer agrees with this conclusion and adopts the relevant
findings from DCC18.113 here by this reference.
247 -15 -000464 -CU - Caldera Springs 72
B. The proposed use shall be compatible with existing and projected
uses on surrounding properties based on the factors listed in DCC
18.128.015(A).
1. Site, design and operating characteristics of the use;
2. Adequacy of transportation access to the site; and
3. The natural and physical features of the site, including, but
not limited to, general topography, natural hazards and
natural resource values.
FINDING: In her decision on the original Caldera Springs approval, the Hearings Officer
made the following findings with respect to these criteria,
"This section of Chapter 18.128 includes general standards for the permitting of a
conditional use. The referenced general standards relate to suitability,
transportation, site characteristics, and compatibility. The applicant has
addressed these general standards in its application under the provisions of DCC
Chapter 18.113. The Hearings Officer concludes the findings addressing DCC
Chapter 18.113 are adequate to assure that, in this case, DCC 18.125.015(A) is
satisfied as well."
The Hearings Officer agrees with this conclusion and adopts the relevant findings
from DCC18.113 here by this reference.
IV. CONCLUSION:
Based on the above Findings of Fact and Conclusions of Law, this application is APPROVED
subject to the following conditions:
1. Approval is based upon the application, site plan, specifications, and supporting
documentation submitted by the applicant. Any substantial change in this approved use
will require review through a new land use application.
2. The resort access onto Vandevert Road shall be limited to construction -related traffic
during development of roads and infrastructure prior to final plat approval, and thereafter
a gated emergency -only access. Said access shall be gated until Vandevert Road is
disconnected from Highway 97 or the Spring River Road/Century Drive roundabout is
constructed.
PRIOR TO FINAL MASTER PLAN APPROVAL
3. The developer shall provide to the Planning Division signed agreements for sewer and
water service.
4. The developer shall submit to the Planning Division proof of a Wastewater Pollution
Control Facility permit that includes the annexation property.
PRIOR TO FINAL PLAT
5. The approach apron to Vandevert Road must be paved to reduce the amount of gravel
and debris tracked onto Vandevert Road from the property.
247 -15 -000464 -CU - Caldera Springs 73
6. Before approval of each final plat, all the following shall be provided:
A. Documentation demonstrating compliance with the 2.5 to 1 ratio as defined in
DCC 18.113.060(D)(2);
B. Documentation on all individually -owned residential units counted as overnight
lodging, including all of the following:
1) Designation on the plat of any individually -owned units that are going to
be counted as overnight lodging;
2) Deed restrictions requiring the individually -owned residential units
designated as overnight lodging units to be available for rental at least 38
weeks each year through a central reservation and check-in service
operated by the resort or by a real estate property manager, as defined in
ORS 696.010;
3) An irrevocable provision in the resort Conditions, Covenants and
Restrictions ("CC&Rs) requiring the individually -owned residential units
designated as overnight lodging units to be available for rental at least 38
weeks each year through a central reservation and check-in service
operated by the resort or by a real estate property manager, as defined in
ORS 696.010;
4) A provision in the resort CC&R's that all property owners within the resort
recognize that failure to meet the conditions in DCC
18.113.060(L)(6)(b)(iii) is a violation of Deschutes County Code and
subject to code enforcement proceedings by the County;
5) Inclusion of language in any rental contract between the owner of an
individually -owned residential unit designated as an overnight lodging unit
and any central reservation and check in service or real estate property
manager requiring that such unit be available for rental at least 38 weeks
each year through a central reservation and check-in service operated by
the resort or by a real estate property manager, as defined in ORS
696.010, and that failure to meet the conditions in DCC
18.113.060(L)(6)(b)(v) is a violation of Deschutes County Code and
subject to code enforcement proceedings by the County.
AT ALL TIMES
7. No new or expanded industrial, commercial or recreational use shall project lighting
directly onto an existing runway or taxiway or into existing airport approach surfaces
except where necessary for safe and convenient air travel. Lighting for these uses shall
incorporate shielding in their designs to reflect Tight away from airport approach surfaces.
No use shall imitate airport lighting or impede the ability of pilots to distinguish between
airport lighting and other lighting.
8. Within the portions of the property subject to a Landscape Management Combining
Zone, the following conditions of approval apply:
A. Except as necessary for construction of access roads, building pads, septic
drainfields, public utility easements, parking areas, etc., the existing tree and
shrub cover screening the development from the designated road, river, or
stream shall be retained. This provision does not prohibit maintenance of
existing lawns, removal of dead, diseased or hazardous vegetation; the
commercial harvest of forest products in accordance with the Oregon Forest
Practices Act, or agricultural use of the land. Removal of vegetation in
247 -15 -000464 -CU - Caldera Springs 74
accordance with the approved Wildfire Management Plan is allowed as removal
of hazardous vegetation.
B. All new structures and additions to existing structures shall finished in muted
earth tones that blend with and reduce contrast with the surrounding vegetation
and landscape of the building site.
C. No large areas, including roofs, shall be finished with white, bright or reflective
materials. Roofing, including metal roofing, shall be nonreflective and of a color
which blends with the surrounding vegetation and landscape.
D. Except as necessary to accomplish the goals of the approved Wildfire
Management Plan and in locations where the developer has installed landscaped
berms, the developer shall retain of existing vegetation, trees and topographic
features that will reduce visual impact of structures as seen from Highway 97,
South Century Drive and Vandevert Road.
E. Structures shall not exceed 30 feet in height measured from the natural grade on
the side(s) facing Highway 97, South Century Drive and Vandevert Road.
F New exterior lighting, including security lighting, shall be sited and shielded so
that it is directed downward and is not directly visible from Highway 97, South
Century Drive and Vandevert Road.
G. No signs or other forms of outdoor advertising that are visible from a designated
landscape management river or stream shall be permitted. Property protection
signs (No Trespassing, No Hunting, etc.,) are permitted.
9. For those portions of the property within a Wildlife Area Combining Zone, the developer
shall comply with the fence standards pursuant to DCC 18.88.070.
10. Prior to development of each phase of the resort expansion, the developer shall submit
to the Planning Division an erosion control plan for that phase.
11. The resort as a whole shall maintain a maximum ratio of single-family dwelling units to
overnight accommodation units of 2.5:1.
12. Overnight Lodging Units (OLUs) shall be made available for overnight rental use by the
general public for at least 38 weeks per calendar year through one or more central
reservation and check-in services operated by the destination resort or by a real estate
manager, as defined in ORS 696.010.
13. Except as otherwise specified herein, all development (including structures, site
obscuring fences of over three feet in height and changes to the natural topography of
the land) shall be setback from exterior property lines as follows:
A. Three hundred fifty feet for commercial development including all associated
parking areas;
B. Two hundred fifty feet for multi -family development and visitor oriented
accommodations (except for single family residences) including all associated
parking areas;
C. One hundred fifty feet for above grade development other than that listed in DCC
18.113.060(G)(2)(a)(i) and (ii), including any installed landscaped berms;
D. One hundred feet for roads;
E. Fifty feet for golf courses; and
F. Fifty feet for jogging trails and bike paths where they abut private developed lots
and no setback for where they abut public roads and public lands.
247 -15 -000464 -CU - Caldera Springs 75
G. Notwithstanding Condition of Approval No. 11(C), above grade development
other than that listed in DCC 18.113.060(G)(2)(a)(i) and (ii) shall be set back 250
feet in circumstances where state highways coincide with exterior property lines.
H. The setbacks identified in Condition of Approval No. 11 shall not apply to entry
roadways and signs.
14. The resort shall compile, and maintain, in perpetuity, a registry of all overnight lodging
units.
A. The list shall identify each individually -owned unit that is counted as overnight
lodging.
B. At all times, at least one entity shall be responsible for maintaining the registry
and fulfilling the reporting requirements of DCC 18.113.060(L)(2) through (6).
C. Initially, the resort management shall be responsible for compiling and
maintaining the registry.
D. As a resort develops, the developer shall transfer responsibility for maintaining
the registry to the homeowner association(s). The terms and timing of this
transfer shall be specified in the Conditions, Covenants & Restrictions (CC&Rs).
E. Resort management shall notify the County prior to assigning the registry to a
homeowner association.
F. Each resort shall maintain records documenting its rental program related to
overnight lodging units at a convenient location in Deschutes County, with those
records accessible to the County upon 72 hour notice from the County.
G. As used in this section, "resort management" includes, but is not limited to, the
applicant and the applicant's heirs, successors in interest, assignees other than a
home owners association.
15. An annual report shall be submitted to the Planning Division by the resort management
or home owners association(s) each February 1, documenting all of the following as of
December 31 of the previous year:
A. The minimum of 150 permanent units of overnight lodging have been constructed
or that the resort is not yet required to have constructed the 150 units;
B. The number of individually -owned residential platted lots and the number of
overnight -lodging units;
C. The ratio between the individually -owned residential platted lots and the
overnight lodging units;
D. The following information on each individually -owned residential unit counted as
overnight lodging.
E. Who the owner or owners have been over the last year;
F. How many nights out of the year the unit was available for rent;
G. How many nights out of the year the unit was rented out as an overnight lodging
facility under DCC 18.113;
H. Documentation showing that these units were available for rental as required.
This information shall be public record subject to ORS 192.502(17).
16. To facilitate rental to the general public of the overnight lodging units, the resort shall set
up and maintain in perpetuity a telephone reservation system.
17. The resort shall ensure that any outside property managers renting required overnight
lodging units shall be required to cooperate with the provisions of this code and to
annually provide rental information on any required overnight lodging units they
represent to the central office as described in DCC 18.113.060(L)(2) and (3).
247 -15 -000464 -CU - Caldera Springs 76
18. The resort shall comply with the approved Wildlife Report.
19. Each audit report required by the approved Wildlife Report shall determine the timing of
the subsequent audit report, with an audit report required at least every five years. Each
audit report shall be submitted to the Planning Division.
20. The Covenants, Conditions and Restrictions (CCRs) and/or Bylaws for the resort shall
include a specific provision for funding of the Wildlife Report requirements and retention
of a professional biologist.
21. The resort shall comply with the approved Wildfire Management Plan.
22. The homeowners association shall submit proof of Firewise Community recognition to
the Planning Division annually from the date of first recognition. This requirement shall
be included in the CCRs for the homeowners association.
23. The homeowners association and/or the Caldera Springs Design Review Committee
shall retain a wildland fire consultant to assess ladder fuel buildup along with any
necessary thinning, spot treatment of downed fuels and mowing. Prior to any fuels
treatment, the wildland fire consultant shall coordinate with the retained professional
biologist to ensure treatments do not compromise the goals of the Wildlife Report.
24. The Covenants, Conditions and Restrictions (CCRs) and/or Bylaws for the resort shall
include a specific provision for funding of the Wildfire Management Plan requirements
and retention of a wildland fire consultant.
74e44,cfC .U.
Kenneth D. Helm, Hearings Officer
Dated this 15th day of April, 2016. Mailed this 15th day of April, 2016.
A DECISION BY THE HEARINGS OFFICER BECOMES FINAL TWELVE (12) DAYS AFTER
THE DATE OF MAILING, UNLESS APPEALED BY A PARTY OF INTEREST.
247 -15 -000464 -CU - Caldera Springs 77
BLANK PAGE
EXHIBIT C
LUBA 1
BLANK PAGE
1 BEFORE THE LAND USE BOARD OF APPEALS
2
3
4
5
6
7
OF THE STATE OF OREGON
CENTRAL OREGON LANDWATCH,
Petitioner,
vs.
8
9 DESCHUTES COUNTY,
10 Respondent,
11
12 and
13
14
15 Intervenor -Respondent.
16
17 LUBA No. 2016-065
18
19 FINAL OPINION
20 AND ORDER
21
22 Appeal from Deschutes County.
23
24 Paul D. Dewey, Bend, filed the petition for review and argued on behalf
25 of petitioner.
26
27 No appearance by Deschutes County.
28
29 Steven Hultberg, Bend, filed a response brief and argued on behalf of
30 intervenor -respondent. With him on the brief was Radler White Parks &
31 Alexander LLP.
32
33 BASSHAIVI, Board Member; RYAN, Board Member, participated in the
34 decision.
35
36 HOLSTUN, Board Chair, concurring.
37
38 REMANDED 12/06/2016
PINE FOREST DEVELOPMENT, LLC,
DEC -- 9 2019
UESCflIJ ES CO J i1Y
tEGAI: TOUT SEt
Page 1
1
2 You are entitled to judicial review of this Order. Judicial review is
3 governed by the provisions of ORS 197.850.
Page 2
1 Opinion by Bassham.
2 NATURE OF THE DECISION
3 Petitioner appeals county approval of an expansion to an existing
4 destination resort.
5 REPLY BRIEF
6 Petitioner moves to file a reply brief to address waiver challenges in
7 intervenor -respondent's (intervenor's) brief. There is no opposition to the
8 motion, and it is allowed.
9 FACTS
10 In 2006, the county approved a conceptual master plan (CMP) for the
11 Caldera Springs destination resort (Caldera), on a 390 -acre tract. As approved,
12 Caldera includes 320 single-family residence homesites, and a number of
13 recreational facilities. To satisfy statutory requirements that a destination
14 resort provide at least 150 "overnight lodging units," which can consist of
15 "individually owned units," Caldera relies upon 38 privately -owned cabins,
16 which each have three to five bedrooms, providing a total of approximately 150
17 bedrooms. Each cabin bedroom has a separate bathroom and an outside
18 entrance in addition to an entrance from the bedroom to the inside of the cabin.
19 In this opinion, we refer to these cabin bedrooms as "lockoff rooms."
20 Intervenor proposes to expand the Caldera resort onto an adjacent 614-
21 acre parcel that was formerly in federal ownership. The parcel has a base zone
22 of Forest (F-2), and is subject to several combining (or overlay) zones,
Page 3
1 including a Wildlife Area (WA) Combining Zone for deer migration and a
2 Destination Resort (DR) Combining Zone, which makes the property eligible to
3 site a destination resort. The DR zone was applied to the expansion area in
4 2011, after intervenor acquired the parcel from the U.S. Forest Service.
5 Deschutes County Code (DCC) 18.113.025 authorizes the county to
6 approve an expansion of an existing destination resort, either because (1) the
7 expansion meets all applicable criteria without consideration of the existing
8 resort, or (2) the entire development viewed as a whole (expansion plus
9 existing) satisfies all applicable criteria.' As discussed below, DCC provisions,
10 based on Statewide Planning Goal 8 (Recreation) and ORS 215.435 et seq.,
11 impose a number of standards and qualifications on establishment of a
' DCC 18.113.25 provides:
"Expansion proposals of existing developments approved as
destination resorts shall meet the following criteria:
"A. Meet all criteria of DCC 18.113 without consideration of
any existing development; or
"B. Meet all criteria of DCC 18.113 for the entire development
(including the existing approved destination resort
development and the proposed expansion area), except that
as to the area covered by the existing destination resort,
compliance with setbacks and lot sizes shall not be required.
"If the applicant chooses to support its proposal with any
part of the existing development, applicant shall
demonstrate that the proposed expansion will be situated
and managed in a manner that it will be integral to the
remainder of the resort."
Page 4
1 destination resort. Among the goal and statute -based requirements are that the
2 destination resort provide at least 150 overnight lodging units and that the ratio
3 of residential dwellings to overnight lodging units not exceed 2.5 to 1.
4 In 2015, intervenor applied to the county to modify the Caldera CMP, in
5 order to expand the resort onto the adjacent 614 -acre parcel, using the second
6 approach authorized by DCC 18.113.025. The proposed expansion would
7 occupy 490 acres of the 614 -acre parcel, and would include up to 395 new
8 single-family dwellings, bringing the total of single-family dwellings in the
9 resort as a whole to a maximum of 715. Intervenor also proposed to increase
10 the existing ratio of dwellings to overnight lodging units from 2:1 to 2.5:1. To
11 avoid exceeding the maximum ratio of residential dwellings to overnight
12 lodging units required by law, intervenor proposed to construct an additional
13 95 overnight lodging units, which would be provided in the same way as the
14 existing Caldera resort, i.e., individually owned cabins that each include three
15 to five lockoff rooms, with each individual lockoff room counted as a separate
16 overnight lodging unit.
17 To address the requirements of the WA Combining Zone, for deer
18 migration, intervenor proposed retaining 125 acres of the parcel in an
19 undeveloped state.
20 The hearings officer conducted several hearings on the application. At
21 the final December 15, 2015 hearing, petitioner and others submitted new
22 testimony and evidence. The hearings officer left the record open for seven
Page 5
1 days, until December 22, 2015, for additional testimony and evidence, limited
2 to the issues raised in the new materials petitioner and others submitted on
3 December 15, 2015. On December 22, 2015, petitioner submitted additional
4 testimony and evidence regarding the issues that petitioner raised in its
5 December 15, 2015 submittals. The hearings officer rejected the December 22,
6 2015 submittal, concluding that it did not constitute a response or rebuttal to
7 the December 15, 2015 submittals.
8 The hearings officer issued a decision approving the expansion on April
9 15, 2016. Petitioner appealed the hearings officer's decision to the county
10 board of commissioners, which in an order dated May 11, 2016, exercised its
11 discretion under the DCC to decline to hear the appeal, and refunded 80
12 percent of the appeal fee. This appeal followed.
13 SIXTH ASSIGNMENT OF ERROR
14 We first address petitioner's argument that the hearings officer
15 committed procedural error in rejecting evidence petitioner submitted during
16 the proceedings below.
17 As noted, at the _final December 15, 2015 hearing before the hearings
18 officer, petitioner submitted a 23-page letter with 71 pages of attachments.
19 Intervenor requested the opportunity to review the submissions and provide a
20 response. The hearings officer granted the request, and left the record open for
21 seven days, until December 22, 2015, for additional testimony and evidence,
22 limited to the issues raised in the new materials submitted on December 15,
Page 6
1 2015. On December 22, 2015, intervenor provided its response. On the same
2 date, petitioner submitted a letter with attachments, providing additional
3 testimony and evidence regarding the same issues petitioner raised in its
4 December 15, 2015 submittals. The hearings officer rejected petitioner's
5 December 22, 2015 submittal, stating that the submittal merely "reiterates prior
6 arguments and augments rather than providing rebuttal testimony," and thus
7 "does not comply with the Hearings Officer's instructions[.]" Record 26.
8 On appeal, petitioner argues that the December 22, 2015 submittal
9 complied with the hearings officer's instructions, because it addressed the
10 "issues raised" in petitioner's December 15, 2015 submittal. According to
11 petitioners, the hearings officer did not expressly limit submittals to a response
12 or rebuttal of the testimony submitted at the December 15, 2015 hearing.
13 InterVenor responds that petitioner failed to identify the alleged
14 procedural error as an issue in its local appeal to the county board of
15 commissioners, and thus petitioner failed to exhaust that issue, as required by
16 Miles v. City of Florence, 190 Or App 500, 79 P3d 382 (2003). On the merits,
17 intervenor argues that the hearings officer clearly limited new testimony and
18 evidence to responses to the testimony and evidence submitted at the December
19 15, 2015, and did not intend to allow petitioner or other parties to simply
20 augment their earlier testimony.
21 We agree with intervenor on both points. On waiver, petitioner replies
22 that the exhaustion/waiver doctrine in Miles does not apply when the local
Page 7
1 appeal review body exercises its discretion to decline to hear the appeal, as the
2 board of commissioners did in this case, pursuant to DCC 22.32.035.2
3 However, we have applied the Miles exhaustion/waiver doctrine even in
4 circumstances where the governing body declined to review the appeal of the
5 lower body. See Wellet v. Douglas County, 62 Or LUBA 372, 377 (2010) (the
6 purpose of Miles exhaustion/waiver is not met where the petitioner was
7 required, but did not, identify specific issues on local appeal that the governing
8 body declined to review, because if the governing body had had notice of the
9 issue, it might have chosen to accept review and address the issue). We
2 DCC 22.32.035, entitled "Declining Review" states in relevant part:
"* * * [W]hen there is an appeal of a land use action and the Board
of County Commissioners is the Hearings Body:
"A. The Board may on a case-by-case basis or by standing order
for a class of cases decide at a public meeting that the
decision of the lower Hearings Body of an individual land
use action or a class of land use action decisions shall be the
final decision of the County.
If the Board of County Commissioners decides that the
lower Hearings Body decision shall be the final decision of
the County, then the Board shall not hear the appeal and the
party appealing may continue the appeal as provided by law.
In such a case, the County shall provide written notice of its
decision to all parties. The decision on the land use
application becomes final upon mailing of the Board's
decision to decline review.
CC
"C. The decision of the Board of County Commissioners not to
hear a land use action appeal is entirely discretionary."
Page 8
1 understand petitioner to argue, nonetheless, that Miles is limited to
2 circumstances where the appeal body's review is limited to the record of the
3 underlying decision maker. Petitioner notes that under DCC 22.32.27(B), the
4 board of commissioners has the option of conducting its review de novo.3
3 DCC 22.32.27(B) provides in relevant part:
"1. Review before the Board, if accepted, shall be on the record
except as otherwise provided for in DCC 22.32.027.
"2. The Board may grant an appellant's request for a de novo
review at its discretion after consideration of the following
factors:
"a. Whether hearing the application de novo could cause
the 150 -day time limit to be exceeded; and
"c.
Whether the substantial rights of the parties would be
significantly prejudiced without de novo review and it
does not appear that the request is necessitated by
failure of the appellant to present evidence that was
available at the time of the previous review; or
"d. Whether in its sole judgment a de novo hearing is
necessary to fully and properly evaluate a significant
policy issue relevant to the proposed land use action.
"*****
"3. Notwithstanding DCC 22.32.027(B)(2), the Board may
decide on its own to hear a timely filed appeal de novo.
"4. The Board may, at its discretion, determine that it will limit
the issues on appeal to those listed in an appellant's notice
Page 9
1 Petitioner argues that it is possible that the board of commissioners, if it had
2 elected to hear the appeal, might have chosen to hold a de novo hearing at
3 which petitioner might have raised new issues not raised in the notice of
4 appeal, including potentially the procedural error identified in this assignment
5 of error.
6 However, that chain of speculation is insufficient to demonstrate that the
7 Miles exhaustion/waiver doctrine does not apply in the present case, to limit the
8 issues on appeal to LUBA to those identified in the local appeal. One could
9 just as easily speculate, as intervenor does, the county board might have elected
10 to hear the Local appeal if petitioner had identified in the local notice the
11 procedural issue it now seeks to raise for the first time before LUBA, and that
12 issue might have been addressed locally and a resolution reached prior to
13 seeking LUBA's review, thus fulfilling a central purpose of the exhaustion
14 requirement at ORS 197.825(2)(a). Instead, as intervenor notes, petitioner
15 stated in the notice of appeal that the primary issues are of state law, and
16 requested that the county board not hear the appeal. Record 11-12, 94.
17 In any case, we also agree with intervenor on the merits that the hearings
18 officer clearly intended the seven-day open record period to allow the parties to
19 respond or rebut the arguments and evidence submitted at the December 15,
20 2015 hearing, not to augment those arguments and evidence. The hearings
of appeal or to one or more specific issues from among
those listed on an applicant's notice of appeal."
Page 10
1 officer's rejection of petitioner's attempt to augment its earlier testimony was
2 entirely consistent with his instructions, and does not represent procedural
3 error.
4 The sixth assignment of error is denied.
5 FIRST ASSIGNMENT OF ERROR
6 As noted, DCC 18.113.025, adopted in 1992, provides that the county
7 may approve an expansion of an existing destination resort, if either (1) the
8 expansion meets all stand-alone requirements for a destination resort, or (2),
9 the expansion, considered with the existing destination resort facilities, meets
10 all requirements for a destination resort. See n 1. Intervenor sought approval
11 for the expansion under the second approach set forth in DCC 18.113.025(B).
12 Petitioner argues that ORS 197.435 to 197.467, the statutes governing
13 destination resorts, do not authorize approval of an expansion of a destination
14 resort, where that expansion does not independently meet all requirements for a
15 destination resort. In effect, petitioner argues that the second option provided
16 in DCC 18.113.025(B) is inconsistent with ORS 197.435 to 197.467.
17 According to petitioner, the only option consistent with ORS 197.435 to
18 197.467 is to approve the expansion as a stand-alone destination resort, such
19 that the expansion area independently complies with all standards necessary to
20 establish a new destination resort.
21 Petitioner first argues that the destination resort statute sets out standards
22 only for approving a "proposal for a destination resort," and that nothing in the
Page 11
1 statute purports to authorize approving an expansion to an existing destination
2 resort. We understand petitioner to contend that some express statutory
3 authority is needed to authorize expansion an existing destination resort on
4 resource land, and that there is no basis to read the statute to implicitly
5 authorize such an expansion. That is particularly the case, we understand
6 petitioner to argue, where the proposed expansion consists almost entirely of
7 new residential dwellings, as in the present case.4 Petitioner argues that the
8 proposed expansion constitutes what is essentially a new rural residential
9 subdivision on resource land, land on which rural residential development is
10 otherwise prohibited without an exception to the resource goals. To the extent
11 expansion of an existing resort is implicitly authorized at all by the destination
12 resort statute, petitioner argues that the statute should be narrowly construed
13 not to allow an expansion that consists almost entirely of residential
14 development not otherwise allowed in the F-2 zone.5
4 As discussed in the second assignment of error, intervenor proposed 65 to
85 new overnight lodging units in the expansion area, in addition to the
proposed 395 new residential dwellings. Intervenor's site plan also depicts two
open areas that could be used to site additional recreational amenities in the
expansion area. However, intervenor did not propose, and the county did not
approve or require, any additional recreational amenities.
5 The methodology for interpreting a statute is set out in PGE v. Bureau of
Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), as modified
by State v. Gaines, 346 Or 160, 172, 206 P3d 1042 (2009). Under PGE as
modified, the initial and often dispositive steps in interpreting a statute is to
examine the text and context and legislative history, if any, to deteiniine the
Page 12
1 Intervenor responds under petitioner's interpretation of the destination
2 resort statute, an existing resort could not be expanded or modified in any way,
3 for example by adding new recreational amenities, unless the expansion
4 independently satisfied all destination resort standards.6 Intervenor argues that
5 a far better reading of the destination resort statute is that the statute implicitly
6 allows expansion of an existing resort, if the expanded resort continues to meet
7 all applicable standards, which is exactly what DCC 18.113.025(B) requires.
8 Intervenor argues that the expanded resort complies with all applicable
9 standards, and the expanded resort as a whole could have been approved in
10 2006 as a two-phase resort development. If a two-phase resort with the same
11 total number of dwellings, lodging units and recreational amenities proposed
intent of the legislature. Only if legislative intent remains unclear is it
necessary to resort to general maxims of statutory construction in resolving the
remaining ambiguity. In the present case, no party cites to any legislative
history, or argues that determining the legislature's intent requires analysis
beyond text and context.
6 Intervenor also responds that the first assignment of error is an
impermissible collateral attack on DCC 18.113.025, which was adopted in
1992 and is presumably acknowledged to comply with Statewide Planning
Goal 8. The hearings officer adopted a finding that DCC 18.113.025 is deemed
acknowledged with both Goal 8 and the destination resort statute. Record 38.
Petitioner challenges that finding, arguing that acknowledgment does not shield
a local code provision from review for inconsistency with an applicable statute.
Jouvenat v. Douglas County, 58 Or LUBA 378, 381 (2009). For purposes of
this opinion, we assume that petitioner is correct that the presumed
acknowledgment of DCC 18.113.025(B) as complying with Goal 8 does not
mean that DCC 18.113.025(B) is also deemed to comply with the destination
resort statute.
Page 13
1 here could have been approved in 2006, intervenor argues, the proposed
2 expansion of the existing resort should be viewed as consistent with, and
3 authorized by, the destination resort statutes.
4 We mostly agree with intervenor. Petitioner is correct that express
5 statutory or goal-based authority would be necessary to approve residential
6 development on rural resource land, such as the proposed 395 single family
7 dwellings, without taking an exception to several otherwise applicable
8 statewide planning goals. However, ORS 197.450 expressly allows for the
9 "siting of a destination resort" on rural lands without taking an exception to
10 applicable statewide planning goals, if the resort is in accordance with all
11 applicable statutes.? While residential development within a destination resort
12 is not required by Goal 8 or any statute (and indeed would otherwise be
13 prohibited by several goals and statutes), the goal and statute allow such
14 development as part of a destination resort, subject to limitations, including
15 that the ratio of residential dwellings to overnight lodging unit not exceed 2.5
16 to 1. However, nothing in the goal or statute limits the maximum number of
17 residential dwellings, overnight lodging units, recreational amenities provided
ORS 197.450 provides:
"In accordance with the provisions of ORS 30.947, 197.435 to
197.467, 215.213, 215.283 and 215.284, a comprehensive plan
may provide for the siting of a destination resort on rural lands
without taking an exception to statewide planning goals relating to
agricultural lands, forestlands, public facilities and services or
urbanization."
Page 14
1 by a destination resort, or the maximum size of such a resort. Further, the
2 destination resort statute expressly contemplates that destination resorts may be
3 approved in phases. See ORS 197.465(3) (requiring that in phased
4 developments recreational amenities intended to serve a phase must be
5 constructed prior to sales of residential units in that phase). While the Caldera
6 resort was not initially approved as a multi -phase development, we believe that
7 it would elevate form over substance to read the destination resort statute as
8 allowing (1) a resort to be developed in two or more phrases, but (2)
9 prohibiting expansion of an existing resort that would offer exactly the same
10 balance of uses and visitor -oriented accommodations that could have been
11 approved in a multi -phase development.
12 A critical caveat to the foregoing is that the expanded resort, viewed as a
13 whole, must meet or continue to meet all applicable standards, as we
14 understand DCC 18.113.025 to require.8 As we explain below under the
8 We understand petitioner to suggest that if the destination resort statutes
allow a county to approve an expansion of an existing resort, the county must
evaluate whether the expanded resort, viewed as a whole, complies with all
applicable standards, including cumulative impacts of existing and proposed
development on, for example, designated wildlife resources. Petition for
Review 18-19. We understand petitioner to argue that because the county
would have to evaluate the impacts of all phases of a multi -phase resort in
originally approving such a resort, the county would similarly have to evaluate
the cumulative impacts of an expanded resort as a whole, and could not simply
evaluate the impacts of the expansion in isolation. While we tend to agree with
that argument, petitioner does not argue on appeal that the county failed to
evaluate the cumulative impacts of the expanded resort, viewed as a whole, or
assign error to such a failure, if any. Accordingly, we do not reach this issue.
Page 15
1 second assignment of error, we conclude that the proposed expanded resort (1)
2 does not provide at least 150 overnight lodging units, and (2) exceeds the 2.5 to
3 1 ratio of residential dwellings to overnight lodging units. However, for
4 present purposes we reject petitioner's categorical argument that the destination
5 resort statute does not authorize any expansion at all of an existing resort.
6 The first assignment of error is denied.
7 SECOND ASSIGNMENT OF ERROR
8 As noted, ORS 197.445(4) requires that a destination resort provide at
9 least 150 units of overnight lodging, and further that the ratio of residential
10 dwellings to overnight lodging units cannot exceed 2.5 to 1.9 ORS
9 ORS 197.445(4)(b) provides:
"On lands in eastern Oregon, as defined in ORS 321.805:
"(A) A total of 150 units of overnight lodging must be provided.
"(B) At least 50 units of overnight lodging must be constructed
prior to the closure of sale of individual lots or units.
"(C) At least 50 of the remaining 100 required overnight lodging
units must be constructed or guaranteed through surety
bonding or equivalent financial assurance within five years
of the initial lot sales.
"(D) The remaining required overnight lodging units must be
constructed or guaranteed through surety bonding or
equivalent financial assurances within 10 years of the initial
lot sales.
Page 16
1 197.435(5)(b) defines "overnight lodging" in relevant part as "permanent,
2 separately rentable accommodations that are not available for residential use,
3 including hotel or motel rooms, cabins and time-share units."10 "Individually
4 owned units" may be considered overnight lodging units if they are available
"(B)
"(F)
The number of units approved for residential sale may not
be more than 2-1/2 units for each unit of permanent
overnight lodging provided under this paragraph.
If the developer of a resort guarantees the overnight lodging
units required under subparagraphs (C) and (D) of this
paragraph through surety bonding or other equivalent
financial assurance, the overnight lodging units must be
constructed within four years of the date of execution of the
surety bond or other equivalent financial assurance."
10 ORS 197.435(5)(b) provides, in relevant part:
"Overnight lodgings" means:
"(b) With respect to lands in eastern Oregon, as defined in ORS
321.805, permanent, separately rentable accommodations
that are not available for residential use, including hotel or
motel rooms, cabins and time-share units. Individually
owned units may be considered overnight lodgings if they
are available for overnight rental use by the general public
for at least 38 weeks per calendar year through a central
reservation system operated by the destination resort or by a
real estate property manager, as defined in ORS 696.010.
Tent sites, recreational vehicle parks, manufactured
dwellings, dormitory rooms and similar accommodations do
not qualify as overnight lodgings for the purpose of this
definition."
Page 17
1 for rental a prescribed amount of weeks per year. Id. "[D]ormitory rooms and
2 similar accommodations do not qualify as overnight lodgings[.]" Id.
3 Petitioner argued below that the proposal expansion is inconsistent with
4 the requirements to provide at least 150 overnight lodging units, and the
5 requirement not to exceed the 2.5 to 1 ratio of residential units to overnight
6 lodging units, because the individual lockoff rooms in the 38 existing Caldera
7 cabins and those proposed in the expansion do not qualify as separate
8 "overnight lodging" units as defined by ORS 197.435(5)(b), in part because the
9 lockoff rooms constitute "dormitory rooms and similar accommodations."
10 According to petitioner, each of the 38 individually owned Caldera cabins and
11 each of the proposed individually owned cabins in the expansion area may
12 qualify as an overnight lodging unit, but the individual lockoff rooms that are
13 part of each cabin do not. The hearings officer rejected the argument, which
14 petitioner renews on appeal. For the reasons that follow, we agree with
15 petitioner that the Caldera lockoff rooms cannot be counted as separate
16 overnight lodging units as defined at ORS 197.435(5)(b).
17 Intervenor responds initially that petitioner's argument is an
18 impeimissible collateral attack on the 2006 decision approving the Caldera
19 resort. We partially agree with intervenor. While petitioner cannot in this
20 appeal challenge the existing Caldera resort's compliance with the applicable
Page 18
1 standards," it can certainly challenge the proposed accounting of similar cabins
2 and lockoff rooms in the expansion area. Further, because intervenor proposed
3 to count each of the lockoff rooms contained within the 38 Caldera cabins
4 toward the total of overnight lodging units needed to ensure that the expanded
5 resort as a whole continues to provide the minimum 150 overnight lodging
6 units and does not exceed the 2.5 to 1 ratio between residential dwellings and
7 overnight lodging units, we believe petitioner can challenge that proposal, and
8 argue that the existing Caldera lockoff rooms cannot be counted for those
9 purposes.
10 Intervenor next argues that LUBA has already held that lockoff rooms
11 can constitute "overnight lodging units," citing Gould v. Deschutes County, 54
11 Petitioner argues that the 2006 decision approving the Caldera resort did
not, in fact, approve counting lockoff rooms toward the requirement to provide
150 overnight lodging units, and not to exceed the 2.5:1 ratio. Petitioner cites
language in the 2006 decision describing the required 150 overnight lodging
units as consisting of a "combination of cottages, attached units and
condominiums. Some of the single-family homesites will also be eligible for
overnight rental." Record 447. Petitioner argues that the Caldera resort, as
built and operated, does not in fact include any cottages, attached units or
condominiums used as overnight lodging units, and instead relies solely on the
purported rental of lockoff rooms in 38 individually owned cabins to satisfy the
requirement to provide 150 overnight lodging units and to avoid exceeding the
maximum ratio. We understand petitioner to suggest that the built Caldera
resort is not consistent with what was approved in the 2006 decision. If that
suggestion is correct, petitioner or the county could presumably file an
enforcement action in a suitable forum to seek enforcement of the 2006
decision. However, for present purposes, we agree with intervenor that
petitioner cannot, in this appeal, directly challenge the 2006 decision or any
alleged noncompliance with that decision.
Page 19
1 Or LUBA 205, 216-23, rev'd on other grounds, 216 Or App 150, 171 P3d 1017
2 (2007). In Gould, LUBA sustained in part challenges to a proposal that
3 involved the use of cottages, each with two lockoff units, to count toward the
4 resort's total of overnight lodging units.12 Specifically, the petitioner
5 challenged a finding that the county could ignore as speculative a notation on
6 the proposed plan that the lockoff capability would be removed in the future.
7 The petitioner argued that a condition of approval or similar mechanism was
8 required to ensure that the lockoff units remain in place. We ultimately
9 concluded that the finding was harmless error. Id. at 223. However, no party
10 argued in Gould that the proposed lockoff units did not qualify as overnight
11 lodging units as defined at ORS 197.435(5)(b), and we did not address or
12 resolve that issue. Accordingly, Gould does not assist intervenor.
13 Intervenor also argues that nothing in the destination resort statute
14 requires that overnight lodging units be grouped in any particular manner, or
15 prohibits combining multiple overnight lodging units into a single structure.
16 Intervenor notes that a 150 -room hotel would satisfy the requirement to provide
17 at least 150 overnight lodging units, and argues that providing a total of 150
12 Our decision in Gould did not describe the nature of the cottages or the
lockoff units, and it is not clear how similar or dissimilar the lockoff units at
issue in Gould are to the lockoff rooms at issue in this appeal. We do not
intend our analysis below to foreclose the possibility that there may be different
types of lodging that can be described as lockoff units and that can also qualify
as "individually owned units" within the meaning of ORS 197.435(5)(b).
Page 20
1 lockoff rooms in 38 individually owned cabins is no different than providing
2 150 hotel rooms in a single structure, for purposes of ORS 197.435(5)(b).
3 However, that argument cannot be squared with the text of the applicable
4 statutes. Under the first sentence of ORS 197.435(5)(b), overnight lodging
5 units can include hotel or motel rooms, cabins and time-share units, which
6 presumably can (but need not) be owned and rented by the resort operator. The
7 second sentence of ORS 197.435(5)(b) addresses the subset of overnight
8 lodging units that are "individually owned units," and provides in part that
9 "[i]ndividually owned units may be considered overnight lodgings if they are
10 available for overnight rental use * * *" (emphasis added.) The pronoun "they"
11 refers to "individually owned units," and clearly it is the "individually owned
12 units" that must "available for overnight rental use." In other words, an
13 individually owned "unit" that may be counted as an overnight lodging unit
14 must be a unit that is "individually owned." The proposed lockoff rooms are
15 not "units" of any kind and are not individually owned, or even capable of
16 being individually owned. They are simply bedrooms in a larger structure, a
17 cabin, which is the only unit in the present case that is "individually owned."
18 This relatively straightforward reading of ORS 197.435(5)(b) has
19 support in the context provided by ORS 197.445(9)(c), which requires the
20 resort operator to file an annual accounting of overnight lodging units. ORS
21 197.445(9)(c) provides in relevant part that "[for a resort counting individually
22 owned units as qualified overnight lodging units," the report must detail "the
Page 21
1 number of weeks that each overnight lodging unit is available for rental to the
2 general public as described in ORS 197.435."13 It is reasonably clear under
3 ORS 197.445(9)(c) that where a developer relies upon individually owned units
4 to qualify as overnight lodging units, what is counted toward satisfying
5 overnight lodging requirements are the "individually owned units." Again, a
6 lockoff room in a Caldera -style cabin is not, and cannot be, an individually
7 owned unit of any kind. The only "unit" here capable of being "individually
8 owned" is the cabin itself.
13 ORS 197.445(9) provides:
"When making a land use decision authorizing construction of a
destination resort in eastern Oregon, as defined in ORS 321.805,
the governing body of the county or its designee shall require the
resort developer to provide an annual accounting to document
compliance with the overnight lodging standards of this section.
The annual accounting requirement commences one year after the
initial lot or unit sales. The annual accounting must contain:
"(a) Documentation showing that the resort contains a minimum
of 150 permanent units of overnight lodging or, during the
phase-in period, documentation showing the resort is not yet
required to have constructed 150 units of overnight lodging.
"(b) Documentation showing that the resort meets the lodging
ratio described in subsection (4) of this section.
For a resort counting individually owned units as qualified
overnight lodging units, the number of weeks that each
overnight lodging unit is available for rental to the general
public as described in ORS 197.435."
"(c)
Page 22
1 Any remaining doubt on this point is removed by the last sentence of
2 ORS 197.435(5)(b), which provides that "dormitory rooms and similar
3 accommodations do not qualify as overnight lodgings[.]" Petitioner argues that
4 separately renting out individual bedrooms in a house with a shared common
5 area and kitchen is functionally the same as renting sleeping rooms in a
6 dormitory or similar accommodation that provides common facilities.
7 Intervenor offers no response to petitioner's arguments regarding the
8 "dormitory room" exclusion in ORS 197.435(5)(b). We agree with petitioner
9 that there appears to be no functional distinction between the Caldera lockoff
10 room approach and providing dormitory rooms or similar accommodations that
11 offer individual sleeping rooms with shared common areas and kitchen
12 facilities. We conclude that the proposed lockoff rooms are similar, at least, to
1.3 doiuiitory rooms, and for that reason alone do not qualify as separate overnight
14 lodging units.
15 We understand intervenor to acknowledge that the Caldera lockoff
16 rooms are rarely if ever separately rented, and instead the common practice,
17 encouraged by the way overnight lodgings at Caldera are marketed, is for a
18 single family or extended family to rent all the lockoff rooms in a cabin, and
19 hence effectively rent the entire cabin.14 The practice of renting an individually
14 Much of the second assignment of error is taken up with petitioner's
argument that the manner in which the 38 existing Caldera cabins are marketed
and typically rented as a single unit means that the individual lockoff rooms are
not actually "available" for overnight rental use within the meaning of ORS
Page 23
1 owned cabin as one overnight lodging unit is, of course, entirely consistent
2 with the requirements of the statute discussed above. However, as petitioner
3 argues, under that approach the existing resort does not provide the minimum
4 number of 150 overnight lodging units, or only reaches that number in a purely
5 nominal sense. The practical reality is that the existing resort provides only 38
6 separate overnight lodging units, and the proposed expansion would not add
7 many more.
8 On this point, we believe that the legislative findings identifying the
9 policies served by the destination resort statute, at ORS 197.440, offers useful
10 context. ORS 197.440 provides, in relevant part:
11 "The Legislative Assembly finds that:
12 "(1) It is the policy of this state to promote Oregon as a vacation
13 destination and to encourage tourism as a valuable segment
14 of our state's economy; [and]
15 "(2) There is a growing need to provide year-round destination
16 resort accommodations to attract visitors and encourage
17 them to stay longer. The establishment of destination resorts
18 will provide jobs for Oregonians and contribute to the
19 state's economic development[.]"
20 These policies focus on providing facilities and accommodations to attract
21 tourists. One of the main vehicles for accommodating the needs of tourists
22 under the destination resort statute is providing qualified overnight lodging.
23 Hence, Goal 8 and the destination resort statute impose several requirements
197.435(5)(b). Given our disposition of the remainder of the second
assignment of error, we need not and do not address this argument.
Page 24
1 intended to ensure a minimum number of overnight lodging units, and that the
2 ratio of residential units to overnight lodging units does not exceed a
3 prescribed limit. The hearings officer described the proposed Caldera approach
4 as one that "finesse[s]" the statutory requirements, and that seems an accurate
5 observation. Record 57. The proposed Caldera approach minimizes the actual
6 number of separate overnight lodgings available for tourist accommodations.
7 At best, that approach nominally provides 150 separate overnight lodging units,
8 which does not seem consistent with the policies set out in ORS 197.440, to
9 attract and accommodate tourists, at least compared to an approach that would
10 actually provide 150 or more separate, qualified overnight lodging units.
11 The second assignment of error is sustained.
12 THIRD ASSIGNMENT OF ERROR
13 DCC 18.113.060(A)(2) requires a destination resort to provide (1) a
14 visitor -oriented eating establishment for at least 100 persons, and (2) meeting
15 rooms that provide seating for at least 100 persons. The hearings officer relied
16 upon the existing facilities at Caldera Resort to conclude that the proposed
17 expansion complies with DCC 18.113.060(A)(2), stating:
18 "In connection with the initial development of Caldera Springs,
19 the applicant constructed the Lakehouse and Zeppa Bistro which,
20 together, provide visitor eating establishments and meeting rooms
21 for at least 100 persons. * * *" Record 57.
22 Petitioner argues that a finding that the existing facilities, together, provide for
23 seating for "at least 100 persons" is not sufficient to establish compliance with
24 DCC 18.113.060(A)(2), which requires provision of an eating establishment
Page 25
1 and meeting facilities that each provide at least 100 seats, for a total of at least
2 200 seats. We understand petitioner to argue that to the extent the hearings
3 officer interpreted DCC 18.113.060(A)(2) to allow a single 100-seat facility to
4 satisfy the requirements for a 100-seat visitor eating establishment and a 100-
5 seat meeting room, the hearings officer misconstrued the applicable law. We
6 also understand petitioner to argue that to the extent the hearings officer found
7 that the Caldera resort provides two separate 100-seat facilities, the finding is
8 not supported by substantial evidence.
9 Intervenor responds that the hearings officer was mistaken to the extent
10 that the hearings officer suggested that the Lakehouse and Zeppa Bistro
11 together only provide 100 seats. According to intervenor, the only evidence in
12 the record on this point is clear that the Lakehouse and the Zeppa Bistro are
13 two separate facilities that each provide at least 100 seats. Record 16
14 (describing the 2006 site plan approval of "eating establishments for at least
15 100 persons" and "meeting rooms for at least 100 persons") Record 1790
16 (listing separate development costs for the Lake House and Zeppa Bistro).
17 We agree with intervenor. While the hearings officer could have been
18 clearer on this point, the statement that the Lakehouse and Zeppa Bistro
19 together provide at least 100 seats does not state or necessarily imply that the
20 two facilities do not each provide at least 100 seats. All the evidence cited to
21 us on this point suggests that the two facilities are separate and each provides at
22 least 100 seats. Importantly, petitioner cites no evidence to the contrary. To
Page 26
1 the extent the hearings officer's findings are inadequate on this point, it appears
2 that the record "clearly supports" a finding of compliance with DCC
3 18.113.060(A)(2). ORS 197.835(11)(b).15
4 The third assignment of error is denied.
5 FOURTH ASSIGNMENT OF ERROR
6 DCC 18.113.070(D) requires a finding that "[a]ny negative impact on
7 fish and wildlife resources will be completely mitigated so that there is no net
8 loss or net degradation of the resource." Consistently with ORS 197.467, DCC
9 18.113.120(A) requires that a destination resort must preserve with a
10 conservation easement any resource site on the property designated for
11 protection in the county's comprehensive plan.16
15 ORS 197.835(11)(b) provides:
"Whenever the findings are defective because of failure to recite
adequate facts or legal conclusions or failure to adequately
identify the standards or their relation to the facts, but the parties
identify relevant evidence in the record which clearly supports the
decision or a part of the decision, the board shall affirm the
decision or the part of the decision supported by the record and
remand the remainder to the local government, with direction
indicating appropriate remedial action."
16 DCC 18.113.120(A) provides:
"If a tract to be used as a destination resort contains a resource site
designated for protection in an acknowledged comprehensive plan
pursuant to open spaces, scenic and historic areas and natural
resource goals, that tract of land shall preserve the resource site by
conservation easement sufficient to protect the resource values of
the resource site in accordance with ORS 271.715 to 271.795."
Page 27
1 Approximately 392 acres of the proposed expansion tract is designated a
2 Deer Migration Corridor (DMC) in the county's inventory of significant
3 resource sites, pursuant to Statewide Planning Goal 5. Under the DCC, a
4 destination resort is allowed on lands designated DMC (although not on other
5 lands designated as higher priority for deer migration). Intervenor submitted a
6 wildlife habitat evaluation and mitigation plan (HEP) to demonstrate
7 compliance with DCC 18.113.070(D), and proposed to retain approximately
8 120 acres of the property undeveloped to protect wildlife habitat. The Oregon
9 Department of Fish and Wildlife (ODFW) ultimately signed off on the
10 proposed mitigation, and the hearings officer relied on the HEP and ODFW's
11 sign -off to conclude that the destination resort satisfied the DCC
12 18.113.070(D) "no net loss" standard. However, the hearings officer found
13 that DCC 18.113.120, requiring a conservation easement, did not apply,
14 because the DCC expressly allows a destination resort on DMC-designated
15 lands.
16 On appeal, petitioner challenges the findings and evidence supporting
17 the conclusion that the DCC 18.113.070(D) "no net loss" standard is met,
18 arguing that the HEP evaluated only impacts on wildlife habitat and not on
19 migration routes. Petitioner also challenges the conclusion that DCC
20 18.113.120(A) does not apply to require a conservation easement for the 392
21 acres of the property designated under Goal 5 as a deer migration corridor.
Page 28
1 Intervenor responds that petitioner failed to raise both issues by failing to
2 identify them as issues in its local appeal to the county board of commissioners,
3 citing Miles v. City of Florence, 190 Or App 500, 506, 79 P3d 382 (2003). In
4 reply, petitioner repeats its arguments, rejected above, that the
5 exhaustion/waiver principle in Miles does not apply because the county board
6 might have held a de novo appeal proceeding at which petitioner might have
7 raised new issues. We reject that argument again.
8 Petitioner also argues that the appeal statement did raise issues regarding
9 impacts on wildlife, with citation to DCC 18.113.070.'7 Record 104.
17 Petitioner's appeal statement states, in relevant part:
"The piecemeal development approach pursued by Pine Forest
Development, whereby subdivisions can be indefinitely added to
destination resorts, is not consistent with the statutory, rule and
code assumptions that the effects of a destination resort need to be
considered upfront as a whole. An example is the impact on
wildlife habitat where there was no attempt to provide a
comprehensive wildlife management plan for the effects of the
now -proposed 1,000+ acre resort. The same applies to the
requirement wildlife management plan.
"The Hearings Officer states that the expansion wildlife plan
`refines the initial CMP [Conceptual Master Plan]. That is twice
wrong. There has been no application to amend the original CMP
other than to add the expansion. The wildlife report also addresses
only the expansion and does not address whatever wildlife plan, if
any, was done for Caldera and does not address the cumulative
effects of the 1,000 acre resort. The Hearings Officer also erred in
finding that this expansion application satisfied the destination
resort standards of DCC 18.113.060 and 18.113.070 including, but
not limited to, the overnight lodging and investment requirements,
Page 29
1 According to petitioner, the arguments at Record 104 are sufficient to identify
2 the issues that petitioner now raises on appeal to LUBA, for purposes of Miles.
3 We disagree with petitioner. The arguments at Record 104 do not mention the
4 "no net loss" standard or the requirement to apply a conservation easement to
5 Goal -5 protected resources, and thus do not give fair notice of the issues that
6 petitioner now raises on appeal. Accordingly, petitioner failed to exhaust
7 administrative remedies for those issues, and the issues are thus beyond
8 LUBA's scope of review.
9 The fourth assignment of error is denied.
10 FIFTH ASSIGNMENT OF ERROR
11 DCC 18.113.025(B) requires that a proposed expansion supported by an
12 existing destination resort must "be situated and managed in a manner that it
13 will be integral to the remainder of the resort." See n 1.
14 Petitioner argued below that the expansion consists of hundreds of
15 dwellings located some distance from the central core of the Caldera resort,
16 where tourist and recreational amenities are clustered, and therefore the
17 expansion will not be situated and managed in a manner that will be integral to
18 the remainder of the resort. However, the hearings officer adopted no finding
19 that the proposed expansion is situated and will be managed in a manner that is
where he relied on what had been provided in the Caldera Resort."
Record 104.
Page 30
1 integral to the remainder of the resort. Petitioner argues that the findings are
2 therefore inadequate.
3 Intervenor responds that, notwithstanding the hearing officer's failure to
4 address the "integral" language, the evidence in the record "clearly supports" a
5 finding that the requirement is met, pursuant to ORS 197.835(11)(b). See n 15.
6 Intervenor cites to testimony from the applicant that the expansion will be
7 integrated into the Caldera resort, and that the expansion area will include two
8 smaller resort core areas where the applicant intends to provide additional
9 resort amenities.
10 We disagree with intervenor that the record includes evidence that
11 "clearly supports" a finding of compliance with the "integral" language in DCC
12 18.113.025(B). It is not appropriate for LUBA to exercise its authority under
13 ORS 197.835(11)(b) when the applicable approval standard is subjective or
14 requires LUBA to weigh conflicting evidence. Waugh v. Coos County, 26 Or
15 LUBA 300, 307-08 (1993). Whether the expansion is situated and managed in
16 a manner that is "integral" to the remainder of the resort is a subjective
17 standard, and the record includes conflicting, if not diametrically opposed,
18 testimony on that point. Remand is necessary for the county to evaluate
19 compliance with the "integral" requirement in the first instance.
20 The fifth assignment of error is sustained.
Page 31
1 SEVENTII ASSIGNMENT OF ERROR
2 ORS 215.422(1) provides that a county governing body may prescribe
3 fees to defray the cost incurred in acting upon an appeal from a hearings
4 officer, but that the "amount of the fee shall be reasonable and shall be no more
5 than the average cost of such appeals or the actual cost of the appeal[.]"
6 The county required petitioner to pay a $5,395 fee to appeal the hearings
7 officer's decision to the county board of commissioners. Because the county
8 commissioners ultimately declined to hear the appeal, the county refunded 80
9 percent of the appeal to petitioner, and retained 20 percent, or $1,079.
10 In this assignment of error, petitioner first argues that the county's
11 decision violates ORS 215.422(1)(c), which authorizes the county to impose a
12 local appeal fee to defray only the costs of "acting upon an appeal[.)"
13 According to petitioner, the statute does not authorize the county to impose any
14 appeal fees where the county declines to conduct an appeal.
15 We reject petitioner's argument. ORS 215.422(1)(c) authorizes the
16 county to impose fees to defray the cost of "acting upon an appeal." Petitioner
17 reads ORS 215.422(1)(c) to authorize any imposition of fees only if the county
18 accepts an appeal. However, the language of the statute does not limit
19 imposition of appeal fees to situations where a county accepts an appeal, and
20 petitioner has not explained why a considered decision whether or not to hear a
21 local appeal, and hence make an underlying decision the county's final
22 decision, is not "acting upon an appeal" for purposes of ORS 215.422(1)(c).
Page 32
1 Second, petitioner argues that a $1,079 fee for deciding whether to act on
2 a local appeal is not "reasonable" within the meaning of ORS 215.422(1)(c).
3 Petitioner recognizes that LUBA and the Court of Appeals have held that in an
4 as-applied challenge to an appeal fee, the petitioner has the burden of providing
5 evidence sufficient to establish that the appeal fee is not "reasonable," if the
6 local regulations provide an opportunity to present such evidence. Young v.
7 Crook County, 224 Or App 1 197 P3d 48 (2008). However, petitioner argues
8 that the board of commissioners provided no opportunity for petitioner to
9 submit evidence that the fee is unreasonable because it declined to review the
10 decision.
11 Intervenor responds that petitioner has failed to establish that the appeal
12 fee is unreasonable. Intervenor points out that in its appeal statement petitioner
13 specifically requested that the county board not hear the local appeal or, if it
14 did hear the appeal, to conduct review on the record before the hearings
15 officer, rather than conduct an evidentiary hearing. Record 93.
16 We agree with intervenor that, because the county's local appeal
17 regulations provide an opportunity to request a de novo evidentiary review,
18 petitioner was required to seek that opportunity by raising the issue in the local
19 appeal filing and requesting that the county board conduct an evidentiary
20 proceeding at which petitioner could submit evidence to establish a prima facie
21 case that the appeal fee violates ORS 215.422(1)(c). Not only did petitioner
22 fail to make that effort, petitioner affiizuatively requested that the county board
Page 33
1 not hear the appeal at all, and not conduct an evidentiary proceeding if the
2 appeal was heard. Petitioner has made no effort to substantiate its claim that a
3 $1079 appeal fee is unreasonable, and we cannot say as a matter of law that it
4 is. Young, 224 Or App at 5-6.
5 Accordingly, petitioner's arguments under this assignment of error do
6 not provide a basis for reversal or remand.
7 The seventh assignment of error is denied.
8 The county's decision is remanded.
9 Holstun, Board Chair, concurring.
10 I agree with the majority's denial of the seventh assignment of error on
11 the merits. This case is yet another example of the legal and practical
12 difficulties that must be overcome to successfully seek LUBA review of
13 challenges to local appeal fees, based on existing LUBA and appellate court
14 precedent. However, for the reasons expressed in my dissenting opinion in
15 Willamette Oaks, LLC v. City of Eugene, 63 Or LUBA _75, 109-10, rev'd and
16 rem'd 245 Or App 47, 261 P3d 85, rev den 351 Or 586 (2011), I believe city
17 and county decisions to adopt or impose the local pennit appeal fees authorized
18 by ORS 227.180(1)(c) (cities) and ORS 215.422(1)(c) (counties) qualify as
19 "fiscal decisions," which are not subject to review by the Land Use Board of
20 Appeals. I therefore believe the appropriate disposition of the seventh
21 assignment of error in this appeal would be to reject that assignment of error as
Page 34
1 beyond LUBA's scope of review, without considering the merits of that
2 assignment of error.
Page 35
Certificate of Mailing
I hereby certify that I served the foregoing Final Opinion and Order for LUBA No. 2016-065
on December 6, 2016, by mailing to said parties or their attorney a true copy thereof
contained in a sealed envelope with postage prepaid addressed to said parties or their attorney
as follows:
David Doyle
Deschutes County Counsel
1300 NW Wall Street, Suite 205
Bend, OR 97701
Paul D. Dewey
Attorney at Law
1539 NW Vicksburg Ave
Bend, OR 97701
Steven P. Hultberg
Radler White Parks & Alexander LLP
PO Box 2007
Bend, OR 97709
Dated this 6th day of December, 201-67----,
,Ke11 'Burgess, ` \., Kristi Seyfried
Para. gal Executive Support Specialist
EXHIBIT D
Court of Appeals Decision
BLANK PAGE
No. 208 May 3, 2017 267
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
CENTRAL OREGON LANDWATCH,
Respondent
Cross -Petitioner,
v.
DESCHUTES COUNTY,
Respondent,
and
PINE FOREST DEVELOPMENT, LLC,
Petitioner
Cross -Respondent.
Land Use Board of Appeals
2016065; A163908
Argued and submitted February 16, 2017.
Steven Hultberg and Seth King argued the cause for
petitioner -cross -respondent. With them on the briefs were
Radler White Parks & Alexander LLP; and Robert L.
Aldisert, and Perkins Coie LLP.
David Doyle filed the brief for respondent.
Paul D. Dewey argued the cause and filed the brief for
respondent -cross -petitioner.
Before Ortega, Presiding Judge, and Egan, Judge, and
Lagesen, Judge.
LAGESEN, J.
Reversed and remanded on petition; affirmed on
cross -petition.
268 Central Oregon Landwatch v. Deschutes County
Cite as 285 Or App 267 (2017) 269
LAGESEN, J.
Petitioner Pine Forest Development, LLC (Pine
Forest) seeks judicial review, and respondent Central
Oregon Landwatch (Landwatch) cross -petitions for review,
of an order of the Land Use Board of Appeals (LUBA) that
remands to respondent Deschutes County (the county)1 its
decision approving Pine Forest's proposal to expand the
Caldera Springs destination resort. The resort was approved
in 2006 under the destination -resort land use statutes, ORS
197.435 to 197.467, which were promulgated in accordance
with Statewide Planning Goal 8. Pine Forest raises two
assignments of error, arguing that (1) LUBA's order was an
impermissible collateral attack on prior county decisions
concerning the resort and (2) LUBA erred in concluding
that certain individual bedrooms in 38 of the resort's vaca-
tion homes—which we shall refer to as the "lock -off rooms"—
which have full bathrooms and lockable interior and exte-
rior doors, are not overnight lodging units, as defined in
ORS 197.435(5)(b), for purposes of meeting the criteria for
a destination resort under ORS 197.445(4)(b). Landwatch,
in its cross -petition, contends that an expansion of a desti-
nation resort is not allowed under ORS 197.445 unless the
proposed expansion area meets all of the criteria as a stand-
alone resort and that LUBA erred in concluding otherwise.
On review to determine whether LUBA's order is
unlawful in substance, ORS 197.850(9)(a), we conclude that
LUBA correctly determined that ORS 197.445 does not pro-
hibit the approval of a proposed expansion of a destination
resort provided either that the proposed expanded resort,
as a whole, satisfies all applicable statutory requirements
for the siting of a destination report, or the expanded area,
1 The county submitted an answering brief after Landwatch filed its cross -
petition and answering brief to Pine Forest's petition. Landwatch moved to strike
the county's brief, asserting that the brief did not answer the issue put forth in
Landwatch's cross -petition but, rather, echoed the argument's put forth in Pine
Forest's petition, and, thus, the county should have filed a petition within 21 days
of LUBA's decision, ORS 197.850(3), or a cross -petition within seven days of the
filing of the petition, ORAP 4.68. Put differently, Landwatch asserts that the
county "cannot file a petitioner's brief in the guise of a respondent's brief." For
its part, the county asserts that its answering brief was a "concurrence" to the
issues raised in Pine Forest's petition. We need not decide if the county's brief was
permissible, however, because the issues and arguments it raises are duplicative
of those raised by Pine Forest or not relevant to our analysis.
270 Central Oregon Landwatch v. Deschutes County
on its own, meets all applicable requirements. We therefore
affirm on the cross -petition. As to LUBA's conclusion that
that the lock -off rooms do not qualify as overnight lodging
under ORS 197.435(5)(b), we agree with Pine Forest that
LUBA misconstrued the statute in reaching that conclusion.
We disagree, however, with Pine Forest's assertion that the
lock -off rooms qualify as "overnight lodgings" as a matter
of law under a correct interpretation of the statute and,
for that reason, remand to LUBA to consider the matter in
the first instance. We therefore reverse and remand on the
petition.
1. BACKGROUND AND PROCEDURAL HISTORY
A. Legal Framework
To provide context, we first summarize the state
and local law applicable to the siting of a destination resort
in Deschutes County. Statewide Planning Goal 8 speaks to
the siting of destination resorts in Oregon. The purpose of
Goal 8 is to "'satisfy the recreational needs of the citizens of
the state and visitors and, where appropriate, to provide for
the siting of necessary recreational facilities including des-
tination resorts" without the need for an exception to the
resource goals if certain criteria are met. Friends of Marion
County v. Marion County, 233 Or App 488, 494-95, 227 P3d
198 (2010) (quoting Goal 8).
To implement Goal 8's objectives regarding the
siting of destination resorts, the legislature enacted ORS
197.435 through 197.467. Those statutes set forth the cri-
teria that a proposed resort must meet to be approved as a
destination resort. The statutes define a destination resort
as "a self-contained development that provides for visitor -
oriented accommodations and developed recreational facili-
ties in a setting with high natural amenities." ORS 197.445.
Further, the legislature has found that destination resorts
are intended "to promote Oregon as a vacation destination
and to encourage tourism as a valuable segment of our state's
economy," that Oregon has "a growing need to provide year-
round destination resort accommodations to attract visitors
and encourage them to stay longer," and that it is a "difficult
and costly process to site and establish destination resorts
in rural areas of this state." ORS 197.440.
Cite as 285 Or App 267 (2017) 271
For destination resorts sited in "eastern Oregon,"2
ORS 197.445 sets forth a number of criteria for "proposed
developments." A proposed development must have at least
160 acres with half of the site reserved for permanent open
space and must include a S7 million expenditure3 on rec-
reational facilities and visitor -oriented accommodations.
Residential homes can be included in a destination resort,
but the resort must have at least 150 overnight lodging
units and the ratio of residential homes to overnight lodg-
ing units cannot exceed 2.5 to 1. ORS 197.445(4)(b)(A), (E).
Under ORS 197.435(5)(b), "overnight lodgings" for destina-
tion resorts located in eastern Oregon are defined as:
"permanent, separately rentable accommodations that are
not available for residential use, including hotel or motel
rooms, cabins and time-share units. Individually owned
units may be considered overnight lodgings if they are
available for overnight rental use by the general public for
at least 38 weeks per calendar year through a central reser-
vation system operated by the destination resort or by a real
estate property manager, as defined in ORS 696.010. Tent
sites, recreational vehicle parks, manufactured dwellings,
dormitory rooms and similar accommodations do not qual-
ify as overnight lodgings for the purpose of this definition."
Deschutes County, in turn, has enacted its own
ordinances to govern the approval of destination resorts
proposed to be sited in the county. Pertinent to the issues in
this proceeding, Deschutes County Code (DCC) 18.113.0254
2 "Eastern Oregon" includes counties that are east of the western boundaries
of Wasco, Jefferson, Deschutes and Klamath counties. ORS 321.805(3).
3 The statute requires a S7 million expenditure, but current expenditures
are adjusted based on the Consumer Price Index. ORS 197.445(8).
DCC 18.113.025 provides:
"Expansion proposals of existing developments approved as destination
resorts shall meet the following criteria:
"A. Meet all criteria of DCC 18.113 without consideration of any existing
development; or
"B. Meet all criteria of DCC 18.113 for the entire development (includ-
ing the existing approved destination resort development and the proposed
expansion area), except that as to the area covered by the existing destina-
tion resort, compliance with setbacks and lot sizes shall not be required.
"If the applicant chooses to support its proposal with any part of the
existing development, applicant shall demonstrate that the proposed expan-
sion will be situated and managed in a manner that it will be integral to the
remainder of the resort."
272 Central Oregon Landwatch v. Deschutes County
authorizes the county to approve an expansion of an exist-
ing resort if either (1) the proposed expanded resort, viewed
as a whole, satisfies the criteria for approval as a destination
resort; or (2) the expanded portion, standing alone, meets
the criteria for approval as a destination resort.
B. The Proposed Expansion of the Caldera Springs
Destination Resort
We turn to the particulars of this case. In 2006,
the county approved the conceptual master plan (CMP) for
the Caldera Springs destination resort on 390 acres of land
south of Bend and adjacent to the Sun River destination
resort. Caldera Springs includes 320 single-family residen-
tial homesites. The resort also includes 38 of what the resort
calls "Caldera Cabins," each of which are privately owned by
individuals or entities other than the resort. Each cabin is a
three, four, or five bedroom single-family residence that has an
added feature namely, each bedroom has a full bathroom as
well as lockable inside and outside entrances. These rooms are
referred to as "lock -off rooms." Caldera Springs relies on these
cabins, or rather each of the cabin's lock -off rooms, to satisfy
the requirement under ORS 197.445(4)(b) that a destination
resort must provide at least 150 "overnight lodging" units.
After its initial approval, the resort purchased adja-
cent land from the United States Forest Service 614 acres
of forest land consisting of lodgepole and ponderosa pines
and typical high desert understory plants—zoned as forest
and subject to overlay zones for wildlife area (for deer migra-
tion) and destination resorts. In 2015, Pine Forest submitted
an application to the county under DCC 18.113.025 to mod-
ify the Caldera CMP to include an expansion of the resort
onto the 614 acres. Of the 614 acres, the proposed expan-
sion would apportion 490 acres (125 acres would remain
undeveloped for deer migration) to accommodate up to 395
new single-family houses, which would bring the number of
single-family houses in the resort to a total of 715. Also pro-
posed was an increase to change the ratio of residential units
to overnight lodgings units from 2:1 to 2.5:1, as allowed by
ORS 197.445(4)(b)(E). To satisfy its obligation to provide the
required number of overnight lodging units, Pine Forest pro-
posed to construct an additional 95 overnight lodging units,
Cite as 285 Or App 267 (2017) 273
also employing the Caldera Cabin model individually
owned homes with three to five lock -off rooms. Pine Forest
did not attempt to demonstrate that the expanded portion of
the resort, on its own, would meet the criteria to be approved
as a destination resort. Instead, as contemplated by DCC
18.113.025(B), Pine Forest sought to demonstrate that the
proposed expanded development, as a whole, would meet the
criteria to be approved as a destination resort.
The county hearings officer held several hearings
regarding the proposed expansion. Landwatch, in opposi-
tion to the proposed development, argued that the Caldera
Cabins were merely 38 luxury homes and, therefore, could
not be counted as 152 overnight lodging units for purposes of
the requirements of ORS 197.445. In particular, Landwatch
asserted that the lock -off rooms contained in the Caldera
Cabins could not be counted as separate overnight lodging
units for purposes of determining whether the proposed
expanded resort met the requirements of ORS 197.445.
Landwatch submitted an annual report prepared by the
resort in 2014 in compliance with ORS 197.445(9) demon-
strating that, for that year, none of the lock -off rooms had
been separately rented.5
The hearings officer ultimately determined that
Pine Forest's application should be approved, but expressed
skepticism about the extent to which the lock -off rooms met
Pine Forest's overnight lodgings obligations. The hearings
officer found that the annual report
5 ORS 197.445(9) provides:
"When making a land use decision authorizing construction of a destina-
tion resort in eastern Oregon, as defined in ORS 321.805, the governing body
of the county or its designee shall require the resort developer to provide an
annual accounting to document compliance with the overnight lodging stan-
dards of this section. The annual accounting requirement commences one
year after the initial lot or unit sales. The annual accounting must contain:
"(a) Documentation showing that the resort contains a minimum of 150
permanent units of overnight lodging or, during the phase-in period, doc-
umentation showing the resort is not yet required to have constructed 150
units of overnight lodging.
"(b) Documentation showing that the resort meets the lodging ratio
described in subsection (4) of this section.
"(c) For a resort counting individually owned units as qualified over-
night lodging units, the number of weeks that each overnight lodging unit is
available for rental to the general public as described in ORS 197.435."
274 Central Oregon Landwatch v. Deschutes County
"proves the point that at least in that year each of the `cab-
ins' was rented in total, and there was not even one instance
in which a single bedroom was rented separately from the
rest of the home.16' [Landwatch) argues that at best these
rooms should be categorized as `dormitory rooms' which do
not qualify as overnight rentable units under either ORS
197.435(5)(b) or DCC 18.113.060."
The hearings officer also found that there
"is no dispute that the units are contained within what
otherwise appears to be a single family residence. The dis-
tinction is that each bedroom has a separate entrance and
a separate bathroom. The applicant states that each of the
rooms is separately rentable based on the reservation sys-
tem. Again, the 2014 rental report shows the homes broken
down by bedroom—even if all bedrooms in each home that
year were always rented by one guest. This circumstance is
preferred by most guests, the applicant argues."
Ultimately, the hearings officer concluded that
"the applicant's system for making `rentable units' avail-
able for overnight accommodation complies with DCC
18.113.060 and the definitions in 18.04.030. There is no
evidence which would cause the Hearings Officer to doubt
the veracity of the applicant's statements (see also the let-
ter from Caldera Springs at Exhibit 5 of the applicant's
December 25, 2015 letter)['] or the information about the
6 The 2014 annual report submitted to the county shows the number of
nights each room in each cabin was made available for overnight rentals and
were in fact rented. Although broken down by room, each room in each cabin
was rented for exactly the same number of nights in 2014, e.g., the rooms in 10
Caldera Cabin -10A, 10B, 10C, and 10D—were each rented for 98 nights.
Also included was a letter from the property manager for 32 of the 38
Caldera Cabins stating:
"Each Caldera Cabin includes three, four or five permanent, separately rent-
able units. Each unit includes separate outside access, a full bathroom includ-
ing a tub and/or shower and a variety of bed types including king, queen and
bunk beds. Each unit can be rented separately or together with other units
in the same Caldera Cabin. This is similar to a hotel suite where adjoining
rooms have connecting doors to allow occupancy by the same guest."
The property manager also wrote:
"Caldera Springs could have elected to construct a 150 -unit hotel, or two
75 -unit hotels utilizing the same exact rooms and amenities as are provided
in each Caldera Cabin. Families, extended families and groups of families,
however, prefer a cabin setting where they can stay together rather than
booking a group of hotel rooms."
Cite as 285 Or App 267 (2017) 275
Caldera Springs website as presented by [Landwatch].181
Caldera Springs has interpreted the state definition of
`[o]vernight lodging' in a way that turns a large single
family residence into a `cabin', and a five bedroom five bath
house into five `rentable units.' With the addition of the
separate entrance for each bedroom and at least the color-
able claim to allowing each room to be rented individually,
Caldera Springs appears to have finessed DCC 18.113.060
in a way that minimally satisfies the 150 separate rentable
unit standard.
"Although [Landwatch] clearly condemns the method
that Caldera Springs uses for renting out the homes, there
is no evidence that the Hearings Officer has been pointed
to in the record that the 38 houses are really simply used
as full or part time residences—which is the heart of the
standards set in the destination resort statute. And, while
additional evidence (such as a deliberate system of actively
discouraging the separate rental of individual bedrooms, or
a pricing scheme that accomplished the same result) may
have swayed the Hearings Officer to find noncompliance,
that evidence does not appear to be in the record. I did not
visit the website to search for such evidence since it is out-
side the record. There also is little help in the legislative
findings for ORS 197.435 which might require a conclusion
that Caldera Springs's current rental system is forbidden.
Consequently, the Hearings Officer finds that the applica-
tion meets this criterion.
"For all the same reasons stated above, I also find that
Caldera Springs's rental system does not transform the
rooms or homes into a `dormitory."
8 Landwatch submitted screenshots from the Caldera Springs website. One
screenshot included the heading "All Caldera Cabins" and the subheading "38
Vacation Rentals in All Caldera Rentals." Another screenshot described two cate-
gories of overnight lodging, the Caldera Cabins, which were marketed as "the per-
fect place to get away or get together. These two and three bedrooms provide all
the luxury you want for your special vacation" and the "custom vacation homes,"
which "offer high end accommodations for larger families and groups [,l can range
from three to five bedrooms and provide unrivaled amenities." Landwatch also
submitted a screenshot for an individual "Caldera Cabin," in which the potential
renter could make a reservation for the four-bedroom cabin, described as a 2,522
square foot 4 bedroom, 5 bath home with a view of the golf course and which
included a master bedroom, two additional bedrooms, and a fourth bedroom
with 2 bunk beds and a sofa sleeper. Additional screenshots of other individual
vacation homes similarly described the accommodations. None of the screenshots
mentioned that the bedrooms were available as separate rentals, or even that the
bedrooms included separate outside access.
276 Central Oregon Landwatch v. Deschutes County
(Underscoring and fourth brackets in hearings officer's
findings.)
Landwatch appealed the hearings officer's deci-
sion to the county's board of commissioners, which declined
to hear the appeal. Landwatch then appealed to LUBA,
asserting, among other arguments, that (1) the destination
resort statutes do not permit the expansion of a resort; and
(2) the proposed expansion did not provide for the requisite
number of overnight lodging units because, in Landwatch's
view, the lock -off rooms do not qualify as overnight lodg-
ings under ORS 197.435(5)(b) and ORS 197.445. Defending
the county's decision, Pine Forest argued that the applicable
statutes do not prohibit the approval of the expansion of a
destination resort, that the county correctly concluded that
the lock -off rooms counted as overnight lodging units, and
that Landwatch's argument to the contrary was an imper-
missible collateral attack on the county's previous approval
of the Caldera Springs resort.
LUBA remanded the decision on several bases, but
as relevant on review, concluded that the lock -off rooms did
not qualify as overnight lodging units because they were not
individually owned and were dormitory rooms. Before doing
so, LUBA rejected Landwatch's contention that the desti-
nation resort statutes prohibited expansion of an existing
resort and rejected Pine Forest's assertion that Landwatch's
challenge to counting the lock -off rooms as overnight lodg-
ing units was an impermissible collateral attack on prior
county decisions. Both parties timely petitioned for judicial
review.
II. STANDARD OF REVIEW
We review LUBA's order to determine whether it is
unlawful in substance, ORS 197.850(9)(a), and do not substi-
tute our judgment for that of LUBA's as to any factual issue,
ORS 197.850(8).9 In this case, the parties frame the issues
on review solely as assertions that LUBA misconstrued two
destination resort statutes, ORS 197.445 and ORS 197.435.
We review LUBA's interpretation of those statutes for legal
9 Under ORS 197.850(9)(a), we reverse or remand a LUBA order if we deter-
mine the "order to be unlawful in substance or procedure[.)"
Cite as 285 Or App 267 (2017) 277
error, employing the methodology described in PGE v.
Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d
1143 (1993), and State v. Gaines, 346 Or 160, 171-73, 206 P3d
1042 (2009). Trautman I Conte v. City of Eugene, 280 Or App
752, 758, 383 P3d 420 (2016) ("Because LUBA's legal con-
clusions involve an issue of statutory construction, we apply
the principles of statutory construction set out in [PGE and
Gaines]); Zimmerman v. LCDC, 274 Or App 512, 519, 361
P3d 619 (2015) ("The `unlawful in substance' review stan-
dard for LUBA orders under ORS 197.850(9)(a) * * * is for
'a mistaken interpretation of the applicable law." (Quoting
Mountain West Investment Corp. v. City of Silverton, 175
Or App 556, 559, 30 P3d 420 (2001).)). In conducting that
review, we are obligated to interpret those statutory provi-
sions correctly, regardless of the parties' assertions of statu-
tory interpretation. Gunderson, LLC v. City of Portland, 352
Or 648, 662, 290 P3d 803 (2012) (citing Stull v. Hoke, 326 Or
72, 77, 948 P2d 722 (1997)).
III. DISCUSSION
A. Landwatch's Cross -Petition
We begin with the issue raised by the cross-
petition—that is, whether LUBA's order is unlawful in sub-
stance because the destination resort statutes do not allow
an expansion of an existing destination resort unless the
expanded portion of the resort, standing alone, meets the
destination resort criteria, ORS 197.445. We do so because,
if Landwatch is correct as to that point, there would be no
need to reach the issues raised in the petition. It is undis-
puted that the expanded portion of the proposed enlarged
resort does not, on its own, meet the criteria to be approved
as a destination resort.
LUBA rejected Landwatch's argument, determin-
ing that
"nothing in the goal or statute limits the maximum num-
ber of residential dwellings, overnight lodging units, recre-
ational amenities provided by a destination resort, or the
maximum size of such a resort. Further, the destination
resort statute expressly contemplates that destination
resorts may be approved in phases. See ORS 197.465(3)
(requiring that in phased developments recreational
278 Central Oregon Landwatch v. Deschutes County
amenities intended to serve a phase must be constructed
prior to sales of residential units in that phase). While the
Caldera resort was not initially approved as a multi -phase
development, we believe that it would elevate form over
substance to read the destination resort statute as allow-
ing (1) a resort to be developed in two or more phases, but
(2) prohibiting expansion of an existing resort that would
offer exactly the same balance of uses and visitor -oriented
accommodations that could have been approved in a multi-
phase development."
On review, both parties focus on the phrase "pro-
posed development" in ORS 197.445. That statute provides,
in relevant part:
"A destination resort is a self-contained development
that provides for visitor -oriented accommodations and
developed recreational facilities in a setting with high nat-
ural amenities. To qualify as a destination resort under
ORS 30.947, 197.435 to 197.467, 215.213, 215.283 and
215.284,[1.°1a proposed development must meet the following
standards."
(Emphasis added.) Landwatch argues that the phrase "pro-
posed development" signals the legislature's intention that,
to be approved as a destination resort, a development cannot
include any parts that previously have been developed. In
Landwatch's view, such existing parts are not "proposed."
Pine Forest, on the other hand, generally argues that that
wording does not indicate an intention to preclude proposals
for expanded developments that include some portion that is
already developed. Based on the context of the phrase "pro-
posed development," we agree with Pine Forest.
As an initial matter, the "following standards"
to which ORS 197.445 refers include a minimum number
of acres, ORS 197.445 (1), fifty percent open space, ORS
197.445(2), an expenditure of 87 million on recreational facil-
ities and visitor -oriented accommodations, ORS 197.445(3),
10 ORS 30.947 provides that the "fact that a comprehensive plan and imple-
menting ordinances allow the siting of destination resorts or other nonfarm or
nonforest uses as provided in ORS 30.947, 197.435 to 197.467, 215.213, 215.283
and 215.284, does not in any way affect the provisions of ORS 30.930 to 30.947."
ORS 30.930 to 30.947 concern farming and nonforest practices and are not at
issue in this review. ORS 215.213, ORS 215.283, and ORS 215.284 concern lands
zoned for exclusive farm use and are also not applicable here.
Cite as 285 Or App 267 (2017) 279
and that it include at least 150 overnight lodging units of
overnight lodgings and a 2.5 to 1 ratio of overnight lodging
units to residential units, ORS 197.445(4)(b). Significantly,
as LUBA pointed out, there is no limit to a resort's size or
number of overnight or residential units. Thus, to the extent
Landwatch's argument is premised on the idea that the des-
tination resort statutes are meant to restrain the size of des-
tination resorts, the lack of any limit in the size or quantity
of accommodations or residences counters that premise.
Further, other context also suggests that expan-
sion is permitted. ORS 197.465(3) provides, in part, that,
in "phased developments, developed recreational facili-
ties and other key facilities intended to serve a particular
phase shall be constructed prior to sales in that phase or
guaranteed through surety bonding." Although we disagree
with LUBA that that provision "expressly" contemplates
that destination resorts may be approved in phases that
is, phased development does not necessarily mean phased
approval—the provision does provide for phased implemen-
tation. As LUBA correctly noted, the existing resort and the
proposed expansion could have been approved together as
a two-step development, provided it met the criteria of the
destination resort statutes and the county's code provisions.
Thus, we agree with LUBA's conclusion that "it would ele-
vate form over substance to read the destination resort stat-
ute as allowing (1) a resort to be developed in two or more
phrases, but (2) prohibiting expansion of an existing resort
that would offer exactly the same balance of uses and visitor -
oriented accommodations that could have been approved in
a multi -phase development."
In arguing for a contrary conclusion, Landwatch
points out that we have narrowly construed exceptions to
the goals to protect the underlying resource use, McCaw
Communications, Inc. v. Marion County, 96 Or App 552, 773
P2d 779 (1989), and Central Oregon Land Watch v. Deschutes
County, 276 Or App 282, 367 P3d 560 (2016), and argues
that we must apply the principle guiding those cases to
the siting of destination resorts. Both McCaw and Central
Oregon LandWatch are inapposite to the issue in this case:
Those decisions concerned statutory exceptions, under ORS
chapter 215 (or a county code analog), to lands designated
280 Central Oregon Landwatch v. Deschutes County
for exclusive farm use. The destination resort statutes are
not goal exceptions. ORS 197.450 provides, in part, that
"a comprehensive plan may provide for the siting of a des-
tination resort on rural lands without taking an exception
to statewide planning goals relating to agricultural lands,
forestlands, public facilities and services or urbanization."11
(Emphasis added.)
Accordingly, we conclude that the relevant destina-
tion resort statutes allow for the expansion of a destination
resort in the manner contemplated by DCC 18.113.025(B).
But such a proposal cannot be approved as a destination
resort, of course, unless the proposed development satisfies
the criteria for destination resorts.12 Fulfilling the destina-
tion resort criteria is, however, of critical importance: The
developer seeking to incorporate facilities, visitor -oriented
accommodations, or overnight lodgings from the existing
resort into the resort expansion must establish that the
entire proposed development—the existing resort and the
expansion area—meets the criteria set forth in ORS 197.445.
LUBA said much the same thing: "A critical caveat to [per-
mitting expansion] is that the expanded resort, viewed
as a whole, must meet or continue to meet all applicable
standards, as we understand DCC 18.113.025 to require."
(Emphasis added.)
B. Pine Forest's Petition—Impermissible Collateral Attack
Having concluded that ORS 197.445 does not bar
the approval of a proposed destination resort that consists,
in part, of an existing destination resort, we turn to the
issues raised in Pine Forest's petition. In its first assign-
ment of error, Pine Forest argues that Landwatch's asser-
tion that the existing Caldera Cabin lock -off rooms cannot
" ORS 197.445(6)(b), not applicable to the Pine Forest development, provides
different criteria for destination resorts proposed on "land where there has been
an exception to any statewide planning goal on agricultural lands, forestlands,
public facilities and services and urbanization."
'2 We note that Pine Forest raises a persuasive point that Landwatch's inter-
pretation of ORS 197.445 would preclude any expansion of a destination resort
unless the expansion independently meets the destination resort criteria. That
construction would mean that a destination resort could not expand under ORS
197.435 to ORS 197.465 to, for example, add a new golf course to adjacent land—a
"developed recreational facility" expressly provided for in ORS 197.435(1)—or to
site a hotel to accommodate increased demand for overnight lodging.
Cite as 285 Or App 267 (2017) 281
qualify as "overnight lodging" units for purposes of Pine
Forest's proposed expanded destination resort is an imper-
missible collateral attack on the county's prior land use deci-
sions approving the existing Caldera Springs resort. In Pine
Forest's view, "once a land use decision is final, issues that
could have been raised in an appeal of that decision are not
cognizable in an appeal to LUBA from a later local land use
decision."13 Pine Forest also asserts that, because it did not
specifically propose "lock -off rooms" as part of the expansion
to meet its ratio of residential homes to overnight lodging
units, it was error for LUBA to conclude that Landwatch
could "challenge the proposed accounting of similar cabins
and lock -off rooms in the expansion area."
Below, LUBA rejected Pine Forest's collateral
attack argument. It explained that Landwatch was not col-
laterally attacking the previous approvals of the existing
Caldera Springs resort, but rather was challenging whether
Pine Forest's new proposal for an expanded resort met the
criteria for approval:
"While petitioner cannot in this appeal challenge the exist-
ing Caldera resort's compliance with the applicable stan-
dards, it can certainly challenge the proposed account-
ing of similar cabins and lockoff rooms in the expansion
area. Further, because intervenor proposed to count each
of the lockoff rooms contained within the 38 Caldera cab-
ins toward the total of overnight lodging units needed to
ensure that the expanded resort as a whole continues to
provide the minimum 150 overnight lodging units and does
not exceed the 2.5 to 1 ratio between residential dwellings
and overnight lodging units, we believe petitioner can chal-
lenge that proposal, and argue that the existing Caldera
lockoff rooms cannot be counted for those purposes."
(Footnote omitted.)
We agree with LUBA. We highlight our conclu-
sion that, under ORS 197.445, the "proposed development"
13 The previous land use decisions referred to by Pine Forest are (1) the
county's amendment of the CMP in 2007 to modify the dimensional standards of
the lock -off units and in 2013 to update the plan to conform with changes in state
law allowing availability for overnight use to be 38 weeks per year rather than
45 and (2) a declaratory judgment ruling in which, according to Pine Forest, the
lock -off rooms were approved.
282 Central Oregon Landwatch v. Deschutes County
is the entire development, both the existing resort and the
expansion area, and that the proposed development must
satisfy the destination resort criteria as an entirely new
development. Here, Pine Forest proposes expansion under
DCC 18.113.025(B), which requires it to meet "all criteria
of DCC 18.113 for the entire development (including the
existing approved destination resort development and the
proposed expansion area)." Pine Forest seeks to count the
Caldera Cabin lock -off rooms to satisfy the criteria for the
proposed development for purposes of what is a new and dif-
ferent proposal. Under those circumstances, Landwatch's
argument is not susceptible to characterization as collateral
attack; it is simply a request that Pine Forest's new proposal
be reviewed for a determination as to whether the proposal,
in fact, satisfies all applicable requirements.
Arguing otherwise, Pine Forest asserts that our
holdings in McKay Creek Valley Assn. v. Washington County,
118 Or App 543, 848 P2d 624, rev den, 317 Or 272 (1993), and
Marshall v. City of Yachats, 158 Or App 151, 973 P2d 374,
rev den, 328 Or 594 (1999), stand for the proposition that
this court "has rejected the argument that later decisions
require a reexamination of the legality of earlier approvals,
finding instead that a redetermination is necessary only if
expressly required by the local code."
Pine Forest is wrong. In McKay, the petitioners chal-
lenged an application to build a dwelling on a "lot or parcel"
under a local ordinance, arguing that the "lot or parcel" did
not qualify as such because it was unlawfully created. 118
Or App at 545-46. We concluded that it was unnecessary to
answer the question of whether the proposed development
was a lawfully created parcel because the county ordinance
did not expressly make the legality of the lot or parcel an
approval criterion for the application to build a dwelling. Id.
at 548. In Marshall, citing McKay, we concluded that, in the
absence of a requirement that the city's legislation required
a legal lot of record as a prerequisite to granting a dwelling
permit, challenging the legality of the lot was inconsequen-
tial to our review of the city's permitting decision. 158 Or
App at 157. Neither case, however, aids Pine Forest because
the challenge to the proposed development does not hinge
on whether the Caldera Cabins were lawfully created, and,
Cite as 285 Or App 267 (2017) 283
more importantly, the entire proposed development must
satisfy the express destination resort criteria set out in ORS
197.445, 285 Or App at _ .14
As to Pine Forest's assertion that it did not rely on
additional lock -off rooms in the proposed expansion to sat-
isfy the overnight lodging unit requirements, that assertion
is belied by the hearings officer's findings that Pine Forest
"anticipates" that the 96 overnight lodging units will be
located on the expansion property and that those overnight
lodging units will "match the Cadera Cabin model" of the
existing resort. For those reasons, we reject Pine Forest's
first assignment of error.
C. Pine Forest's Petition—Overnight Lodgings
In the alternative to its "collateral attack" argu-
ment, in its second assignment of error, Pine Forest contends
that LUBA erred in concluding that the 152 bedrooms in
the Caldera Cabins—the "lock -off rooms"—do not qualify as
"overnight lodging units" as defined in ORS 197.435(5)(b).
As noted, a "proposed development" requires a minimum
of 150 overnight lodging units and the ratio of residential
homes to overnight lodging units must not be greater than
2.5 to 1. ORS 197.445(4)(b)(A), (E). For the reasons we
explain below, we conclude that LUBA misconstrued ORS
197.435(5)(b) in determining that the lock -off rooms do not
qualify as overnight lodgings and that a correct interpreta-
tion of the statute requires a remand to LUBA for further
proceedings, including, possibly, a remand to the county for
further factfinding. As previously noted, the two relevant
statutes are ORS 197.445 and ORS 197.435. ORS 197.445(4)
provides:
"Visitor -oriented accommodations including meeting
rooms, restaurants with seating for 100 persons and 150
separate rentable units for overnight lodging shall be pro-
vided. However, the rentable overnight lodging units may
be phased in as follows:
'4 Pine Forest also cites Carlsen v. City of Portland, 169 Or App 1, 8 P3d
234 (2000), but that decision is readily distinguishable. In Carlsen, we affirmed
LUBA's conclusion that putative errors affecting an earlier decision by the City
of Portland that was final could not be raised in an appeal from a later decision
from the city. Again, this issue concerns whether the entire proposed develop-
ment meets the relevant statutory criteria.
284 Central Oregon Landwatch v. Deschutes County
"(b) On lands in eastern Oregon, as defined in ORS
321.805:
"(A) A total of 150 units of overnight lodging must be
provided.
"(B) At least 50 units of overnight lodging must be
constructed prior to the closure of sale of individual lots or
units.
"
"(E) The number of units approved for residential sale
may not be more than 2-1/2 units for each unit of permanent
overnight lodging provided under this paragraph."
ORS 197.435(5)(b) defines "[o]vernight lodgings" as follows:
"With respect to lands in eastern Oregon, as defined
in ORS 321.805, permanent, separately rentable accommo-
dations that are not available for residential use, includ-
ing hotel or motel rooms, cabins and time-share units.
Individually owned units may be considered overnight
lodgings if they are available for overnight rental use by
the general public for at least 38 weeks per calendar year
through a central reservation system operated by the des-
tination resort or by a real estate property manager, as
defined in ORS 696.010. Tent sites, recreational vehicle
parks, manufactured dwellings, dormitory rooms and sim-
ilar accommodations do not qualify as overnight lodgings
for the purpose of this definition."
As for whether the lock -off rooms were overnight
lodging units, Pine Forest argued before LUBA that "noth-
ing in the destination resort statute requires that overnight
lodging units be grouped in any particular manner, or pro-
hibits combining multiple overnight lodging units into a
single structure" and that "providing a total of 150 lockoff
rooms in 38 individually owned cabins is no different than
providing 150 hotel rooms in a single structure, for purposes
of ORS 197.435(5)(b)." LUBA rejected that argument, rea-
soning that
"that argument cannot be squared with the text of the
applicable statutes. Under the first sentence of ORS
197.435(5)(b), overnight lodging units can include hotel
or motel rooms, cabins and time-share units, which pre-
sumably can (but need not) be owned and rented by the
Cite as 285 Or App 267 (2017) 285
resort operator. The second sentence of ORS 197.435(5)(b)
addresses the subset of overnight lodging units that are
`individually owned units,' and provides in part that `[i]ndi-
vidually owned units may be considered overnight lodgings
if they are available for overnight rental use * * *' The pro-
noun `they' refers to `individually owned units,' and clearly
it is the `individually owned units' that must [be] `available
for overnight rental use.' In other words, an individually
owned `unit' that may be counted as an overnight lodging
unit must be a unit that is `individually owned.' The pro-
posed lockoff rooms are not `units' of any kind and are not
individually owned, or even capable of being individually
owned. They are simply bedrooms in a larger structure, a
cabin, which is the only unit in the present case that is
`individually owned."
(Brackets and omissions in LUBA's order.)
On review, Pine Forest disputes LUBA's construction
of the second sentence of ORS 197.435(5)(b) that "an individ-
ually owned `unit' that may be counted as an overnight lodg-
ing unit must be a unit that is `individually owned." That is,
it disputes LUBA's conclusion that an "individually owned
unit" must be owned by separate owners. In Pine Forest's
view, the term "individually owned units" referred to in the
second sentence of ORS 197.435(5)(b) refers to units that
are a subset of overnight lodging units that qualify as such
under the first sentence—separately rentable accommoda-
tions that are "not available for residential use." That "indi-
vidually owned units" must be made available for overnight
rental for 38 weeks per year means, according to Pine Forest,
that "individually owned units" are privately owned units.
Otherwise, Pine Forest posits, there would be no reason
to impose the 38 -week overnight rental requirement if the
unit was owned by the resort. Moreover, Pine Forest argues,
by "requiring that these units be available for rent for the
vast majority of the year, it ensures that these otherwise
privately owned units meet the requirement from the first
sentence that they are not available for residential use."
We agree with Pine Forest that "individually owned
units" means units not owned by the resort. The text indi-
cates that for two reasons. First, a unit owned by the desti-
nation resort would not need a requirement that it be made
286 Central Oregon Landwatch v. Deschutes County
available for overnight rental use because a unit owned by
the resort would not ordinarily be an accommodation that
is not available to the general public. Second, that an indi-
vidually owned unit must be made available for "overnight
rental use by the general public" suggests that, but for that
requirement, the unit is not available to the general public,
i.e., is reserved for private use because it is not owned by the
resort.15
Further, ORS 197.445(4)(b), which sets out the cri-
teria for overnight lodging units, suggests that "individually
owned" does not mean separately owned. ORS 197.445 (4)
(b)(B) requires that the developer must first construct at
"least 50 units of overnight lodging" before "the closure of
sale of individual lots or units." (Emphasis added.) That
individual lots or units are sold by the developer suggests
a meaning that individually owned means a unit that is no
longer owned by the resort. Further, subparagraph (B) of
ORS 197.445(4)(a), which concerns the siting of destination
resorts not located in eastern Oregon, provides that at "least
75 units of overnight lodging, not including any individually
owned homes, lots or units, must be constructed or guaran-
teed through surety bonding or equivalent financial assur-
ance prior to the closure of sale of individual lots or units"
and that the "remaining overnight lodging units must be
provided as individually owned lots or units subject to deed
restrictions that limit their use to use as overnight lodging
units." ORS 197.445(4)(a)(B), (C). Again, "individual" and
"individually" in those provisions appear to refer to units
that are not owned by the resort; not necessarily units that
are separately owned.
Moreover, LUBA's interpretation of "individually
owned" to mean "separately owned" is inconsistent with
the adoption history of Goal 8 and ORS 197.435(5)(b). See
Gunderson, LLC, 352 Or at 662 (considering as relevant to
discern legislative intent the adoption history of Statewide
Planning Goal 15). At the early stage of the drafting of
15 We note that such a construction of individually owned units does not
necessarily mean that the accommodations described in the first sentence of
ORS 197.435(5)(b) must categorically be resort -owned, but does mean that a
unit that is privately owned must be made available to the public for at least 38
weeks.
Cite as 285 Or App 267 (2017) 287
the amendment to Goal 8 by the Department of Land
Conservation and Development Commission (DLCD),
the definition for overnight lodgings did not initially
include the second sentence of ORS 197.435(5)(b); it was
limited to defining "overnight lodgings" as "accommoda-
tions not available for full-time residential use (e.g., hotel
and motel rooms, cabins or time-share units)." Proposed
Amendments to the Statewide Planning Goals to Allow
Destination Resorts (June 1984). Later, James Ross, the
director of DLCD issued a memorandum that explained
further DLCD's proposed amendments to Goal 8. In that
memorandum, Ross explained that the existing definition
did
"not indicate under what circumstances, if any, individ-
ually owned homes or condominiums may be considered
overnight lodging. This is an important 'gray area' which
needs to be clarified. In some very limited circumstances
the Department believes individually owned homes should
be counted as overnight lodgings. The Department would
consider individually owned units as overnight lodgings
when `they are available for overnight rental use by the
general public for 48 weeks per year through a central res-
ervation and check-in facility."
James Ross, DLCD Memorandum (Oct 5, 1984). The Goal 8
amendment was adopted on October 11, 1984. The proposed
definition of "overnight lodgings" was substantially similar
to the definition promulgated in ORS 197.435(5)(b).16 Ross's
explanation for the proposed change, which refers to indi-
vidually owned homes, or condominiums, indicates that the
intended meaning was privately owned homes (as we dis-
cuss below, it also indicates that "individually owned units"
are a separate category of overnight lodgings rather than a
subset of "separately rentable accommodations not available
for residential use").
Accordingly, whether a unit is separately owned, or
whether it is capable of separate ownership, as LUBA has
16 A prior iteration of the Goal 8 amendments concerning the definition for
overnight lodgings proposed the exclusion of "[tient sites, recreational vehicle
vehicles or pads, mobile homes, dormitory rooms, and similar accommodations"
which is reflected in nearly identical language in ORS 197.435(5)(b). James Ross,
DLCD Memorandum (Aug 22, 1984).
288 Central Oregon Landwatch v. Deschutes County
concluded, is immaterial.'' "Individually owned" means not
owned by the resort. LUBA erred by determining otherwise
when it construed that phrase as separately owned.
Having concluded that LUBA erred in interpreting
the "individually owned" wording of ORS 197.435(5)(b), a
question remains: What does qualify as overnight lodgings
under the statute and, in particular, do the lock -off rooms
qualify as such lodgings? Pine Forest argues that the lock -
off rooms are units of overnight lodging because they are
"separately rentable accommodations" that are "identical in
function" to a hotel or motel room, and that, because they
are individually owned, i.e., not owned by the resort, and
made available for overnight rental for a minimum number
of weeks to the general public, then they are not "available
for residential use" and, therefore, each lock -off room nec-
essarily qualifies as a unit of overnight lodging. That con-
struction of ORS 197.435(5)(b), however, is untenable in two
ways.
First, in support of that construction of ORS
197.435(5)(b), Pine Forest asserts that the individually
owned units are a "subset" of what would otherwise qualify
as overnight lodging under the first sentence. Landwatch
responds that the first and second sentences are separate
categories and that, to prevail on its argument, Pine Forest
must show that the lock -off rooms fall within the category
of lodging created by the second sentence. We agree with
Landwatch. The first sentence addresses "separately rent-
able accommodations that are not available for residential
use" whereas the second sentence addresses individually
owned units that must be made available to the general
public, which implies that individually -owned units are ones
that are available for residential use, at least part-time. In
17 We note that the first sentence of ORS 197.435(5)(b) does not qualify "sep-
arately rentable accommodations that are not available for residential use" as
resort -owned. Presumably, if an accommodation is "separately rentable" and "not
available for residential use," it could be owned by someone or an entity other
than the resort. Further, there may be some manner of accommodation that is
not resort -owned that consists of multiple units that are separate rentable units
and available for residential use (such as a duplex that available for resident use
as a single unit but one or two halves of the duplex can be rented out as a separate
unit) --those units must be made available to the public the minimum number of
weeks.
Cite as 285 Or App 267 (2017) 289
other words, implicit in the requirement that an "individu-
ally owned unit" must be made available to the general pub-
lic for part of the year is that, when the unit is not available
to the general public for overnight rentals, it is available to
the owner for residential use. Residential use need not mean
full-time residence of a dwelling: part-time residential -use
availability is consistent with private ownership of a vaca-
tion home in a destination resort.'8 Further, we reject the
implication of Pine Forest's interpretation that, when the
lock -off rooms are not being used as bedrooms in a vacation
home, i.e., are not being used residentially, and are rented
out, they are—by virtue of an exterior door, a lockable inte-
rior door, and bathroom—"not available for residential use"
for purposes of the statute. Put differently, the implication
of Pine Forest's construction of the statute is that overnight
lodgings are separately rentable accommodations that are
not available for residential use except when they are avail-
able for residential use.19
We also disagree with Pine Forest that the require-
ment that an individually owned unit must be made avail-
able to the general public at least 38 weeks a year "ensures"
that the individually owned unit meets the requirement set
out in the first sentence of ORS 197.435(5)(b) that "perma-
nent, separately rentable accommodations" are "not avail-
able residential use." That is so because the requirement
that an individually owned unit be made available to the
general public was the condition of allowing, in limited cir-
cumstances, 285 Or App at ___, individually owned units
to qualify as overnight lodging. That requirement was not
put in place in reference to "separately rentable accommoda-
tions not available for residential use," it was put in place to
explain when individually owned units could be counted as
overnight lodging units.
18 We note that a previous version of Goal 8 defined overnight lodgings as
"accommodations not available for full-time residential use." 285 Or App at ___.
The modifier "full-time" was removed when the provision allowing individually
owned units to qualify as overnight lodging was added, suggesting that the defi-
nition as enacted meant that "available for residential use" was not limited to
full-time residences.
19 Presumably, a resort -owned single-family house, condominium, town-
house, or duplex could qualify as overnight lodging as defined in the first sen-
tence if it is never available for residential use.
290 Central Oregon Landwatch v. Deschutes County
Second, we reject Pine Forest's argument that the
physical layout of the lock -off rooms, which include a sleeping
area and full bathrooms, and their lockable exterior doors,
which permit separate entry, make them akin to a hotel or
motel room. Although the lock -off rooms themselves may
have some physical features of hotel rooms or motel rooms,
the similarities end there. The lock -off rooms are not part of
an establishment that provides services or hospitality asso-
ciated with hotels or motels. That is, a "hotel" is a "building
of many rooms chiefly for overnight accommodation of tran-
sients and several floors served by elevators" that includes
features such as a lobby, meeting rooms, restaurants, and
personal services. Webster's Third New Int'l Dictionary 1094-
95 (unabridged ed 2002); see also Comcast Corp. v. Dept. of
Rev., 356 Or 282, 296, 337 P3d 768 (2014) ("[A]s stilted as
the approach may sometimes seem, we frequently consult
dictionary definitions of the terms, on the assumption that,
if the legislature did not give the term a specialized defini-
tion, the dictionary definition reflects the meaning that the
legislature would naturally have intended."). A "motel" is
an "establishment which provides lodging and parking and
in which the rooms are usually accessible from an outdoor
parking area." Webster's at 1474. The Caldera Cabins, which
are single-family residences, do not offer the amenities or
services of a commercial, overnight -lodging establishment.20
20 Nor are they cabins. The hearings officer found that there "is no dispute"
that the lock -off rooms are contained within what "otherwise appears to be a
single family residence." Although Caldera Springs evocatively markets the
Caldera Cabins as "cabins," they are built in the form of single-family residences
featuring amenities that have little in common with the ordinary meaning of a
cabin—a "small one-story low -roofed dwelling usually of plain construction * * *
used during a vacation especially for hunting and fishing" or a "small typically
one -room house suitable for overnight lodging for tourists." Webster's at 309. Pine
Forest does not assert, nor does the record indicate, that the Caldera Cabins are
time-shares.
We recognize that the list of examples (motel or hotel rooms, cabins, or time-
shares) of what qualifies as "separately available accommodations not available
for residential use" is not an exclusive list. There may be other types of accom-
modations that qualify as overnight lodgings under that definition. However, the
shared characteristics of those accommodations, at least in the context of a des-
tination resort, are that they provide overnight lodging and are not available for
residential use. See State v. Kurtz, 350 Or 65, 76, 249 P3d 1271 (2011) ("When
examining the characteristics of a list of examples, for purposes of statutory
interpretation, 'the court seeks to find if it can, a common characteristic among
the listed examples."' (Quoting Schmidt v. Mt. Angel Abbey, 347 Or 389, 405, 223
P3d 399 (2009).)).
Cite as 285 Or App 267 (2017) 291
Thus, under this construction of the definition for
"overnight lodgings," a unit generally can qualify in one of
two ways: either as (1) "separately rentable accommodations
that are not available for residential use" or (2) as "[i]ndivid-
ually owned units" that "are available for overnight rental
use by the general public for at least 38 weeks per calendar
year through a central reservation system operated by the
destination resort or by a real estate property manager, as
defined in ORS 696.010" unless the unit is one of the types
of lodging expressly excluded from the definition of overnight
lodgings: "[t] ent sites, recreational vehicle parks, manufac-
tured dwellings, dormitory rooms and similar accommoda-
tions." We examine how this construction applies to the lock -
off rooms.
As an initial matter, the lock -off rooms do not qual-
ify as overnight lodgings units under the first sentence
of the definition. That is, they are bedrooms that are in a
single-family home that is available for residential use.21
Second, although LUBA concluded otherwise, the
lock -off rooms are not among those types of lodging categor-
ically excluded from being counted as overnight lodgings.
LUBA reasoned that "there appears to be no functional dis-
tinction between the Caldera lock -off room approach and
providing dormitory rooms or similar accommodations that
offer individual sleeping rooms with shared common areas
and kitchen facilities." However, a "dormitory" is defined as
"a room intended primarily to be slept in; especially : a large
room providing sleeping quarters for many persons and
sometimes divided into cubicles" and "a residence hall pro-
viding separate rooms or suites for individuals or for groups
of two, three, or four with common toilet and bathroom facil-
ities but usually without housekeeping facilities." Webster's
at 675. Without belaboring the analysis, we conclude that
21 The hearings officer stated that "there is no evidence that the Hearings
Officer has been pointed to in the record that the 38 houses are really simply
used as full or part time residences—which is the heart of the standards set in
the destination resort statute." That evidence is not required, however: The first
category under ORS 197.435(5)(b) is satisfied, in part, if the "separately rent-
able accommodations" are "not available for residential use." Here, because the
Caldera Cabins are privately owned and are built as single-family residences,
they are available for residential use.
292 Central Oregon Landwatch v. Deschutes County
it was error for LUBA to determine that the lock -off rooms
were dormitory rooms for much the same reason we rejected
Pine Forest's assertion that the lock -off rooms were akin
to motel or hotel rooms: The lock -off rooms are bedrooms
in a single-family vacation home and, although, there may
be some physical similarities between the rooms and a dor-
mitory room, there is little in common between these well-
appointed luxury vacation homes and what would commonly
be understood as a dormitory.
The remaining issue is whether the lock -off rooms
qualify as overnight lodging units under the second sen-
tence of ORS 197.435(5)(b)—"Individually owned units may
be considered overnight lodgings if they are available for
overnight rental use by the general public for at least 38
weeks per calendar year through a central reservation sys-
tem operated by the destination resort or by a real estate
property manager, as defined in ORS 696.010." Because
"separately rentable accommodations not available for res-
idential use" and "individually owned" (at least in the sense
of being separately owned) are no longer operative factors as
to whether the lock -off rooms qualify as overnight lodging
units, the following question needs to be answered: What
factors qualify a privately owned unit as an overnight lodg-
ing unit for purposes of ORS 197.445(4)(b)?
First, we note that Pine Forest's argument that
lock -off rooms are "separately rentable accommodations"
because "each unit is separately available for rent through a
central reservation service," depends on the factual premise
that, so long as a unit is made available through a reser-
vation system, it is immaterial whether they are, in fact,
separately rented. As we have indicated, the "separately
rentable accommodation" wording from the first sentence of
ORS 197.435(5)(b) is not relevant when considering whether
an individually owned unit qualifies at as overnight lodging
unit. However, we point out that ORS 197.445(4) provides
that "150 separate rentable units for overnight lodging shall
be provided." (Emphasis added.) Although "separately rent-
able accommodations" and "separate rentable units" may,
at first blush, seem equivalent, the grammatical difference
is significant. That is, in the phrase "separately rentable
accommodations," "separately" is an adverb that modifies
Cite as 285 Or App 267 (2017) 293
"rentable." Whereas, in the phrase "separate rentable unit,"
"separate" is an adjective that modifies "unit." Thus, a unit
for purposes of meeting the destination resort criteria is
modified by both "separate" and "rentable," and, as a start-
ing point, an overnight lodging unit must be a separate,
rentable unit. And, the focus on "separate" shifts from avail-
ability and the reservation service to a more concrete, fac-
tual determination of whether the rentable unit is actually
a separate unit. Further, we note that "separate" means "not
shared with another : INDIVIDUAL, SINGLE" or "existing
by itself : AUTONOMOUS, INDEPENDENT." Webster's at
2069.
Secondly, we note that the text of the second sen-
tence of ORS 197.435(5)(b) states that individually owned
units "may be considered overnight lodging units if they are
available to the general public." (Emphasis added.) Although
we need not go into a discussion on the precise meaning of
"may" in this context, see, e.g., Friends of Columbia Gorge v.
Columbia River (S055915), 346 Or 415, 426, 212 P3d 1243
(2009) (noting that, "in certain contexts, the word 'may' can
mean `shall' and vice versa"), we believe that the adoption
history of Goal 8 informs our analysis. As noted, Goal 8 was
amended to reflect the concern that a previous iteration of
Goal 8 did
"not indicate under what circumstances, if any, individu-
ally owned homes or condominiums may be considered
overnight lodging. This is an important 'gray area' which
needs to be clarified. In some very limited circumstances the
Department believes individually owned homes should be
counted as overnight lodgings. The Department would con-
sider individually owned units as overnight lodgings when
'they are available for overnight rental use by the general
public for 48 weeks per year through a central reservation
and check-in facility."
James Ross, DLCD Memorandum (Oct 5, 1984) (empha-
ses added). Thus, the addition was meant to count individ-
ually owned homes in "some very limited circumstances."
Although, the text of ORS 197.435(5)(b) refers to individ-
ually owned "units," and therefore can allow accommoda-
tion types that are not homes, we deem it significant that
that allowance was meant to be a stringent requirement.
294 Central Oregon Landwatch v. Deschutes County
Certainly, the allowance was not intended to encompass a
definition of overnight lodging that was susceptible to, as
the hearings officer described it, being "finessed."
Additionally, ORS 197.445(9) requires the resort
developer to provide an "annual accounting to document
compliance with the overnight lodging standards," indicat-
ing that compliance with the overnight lodging is an ongoing
factual determination—whether a rentable unit is separate
is a question of whether it is in fact separate and rentable, at
least once the unit is in existence and not a mere proposal on
paper. We also find persuasive LUBA's point that the legisla-
tive policies of the destination resort statutes, ORS 197.440,
"focus on providing facilities and accommodations to attract
tourists" and that "one of the main vehicles" for doing so is
ensuring that are a minimum number of overnight lodging
units and limiting the ratio of residential units to overnight
lodging units. As LUBA stated, the
"proposed Caldera approach minimizes the actual number
of separate overnight lodgings available for tourist accom-
modations. At best, that approach nominally provides 150
separate overnight lodging units, which does not seem
consistent with the policies set out in ORS 197.440, to
attract and accommodate tourists, at least compared to an
approach that would actually provide 150 or more separate,
qualified overnight lodging units."
(Emphases in original.)
Accordingly, we conclude that individually owned
units, to qualify as "overnight lodgings," must be, as a fac-
tual matter, an accommodation that is both its own "sep-
arate" unit that is rentable separately from other units.
Where, as here, a developer proposes an expanded destina-
tion resort that is based, in part, on existing lodgings, for
an existing individually owned unit to count as "overnight
lodgings" under the second sentence of ORS 197.435(5)(b),
there must be evidence that the unit is in fact separate
and rentable separately from other units; it is not enough
that the unit is theoretically separate and separately rent-
able, particularly when there is affirmative evidence the
claimed separate unit of lodging is, in reality, neither sepa-
rate nor separately rentable. In concluding that the lock -off
Cite as 285 Or App 267 (2017) 295
rooms did not qualify as overnight lodging, LUBA applied a
different and, as we have explained, mistaken interpreta-
tion of ORS 197.435(5)(b). That renders its order unlawful
in substance. For that reason, we remand to LUBA for fur-
ther consideration of the issue under a correct interpretation
of the law.
Reversed and remanded on petition; affirmed on
cross -petition.
BLANK PAGE
EXHIBIT E
LUBA 11
BLANK PAGE
1 BEFORE THE LAND USE BOARD OF APPEALS
2
3
4
5
6
7
OF THE STATE OF OREGON
CENTRAL OREGON LANDWATCH,
Petitioner,
vs.
8
9 DESCHUTES COUNTY,
10 Respondent,
11
12 and
13
14 PINE FOREST DEVELOPMENT, LLC,
15 Intervenor -Respondent.
16
17 LUBA No. 2016-065
18
19 FINAL OPINION
20 AND ORDER
21
22 Appeal on remand from the Court of Appeals.
23
24 Paul D. Dewey, Bend, represented petitioner.
25
26 David Doyle, County Counsel, Bend, represented respondent.
27
28 Steven Hultberg, Bend, represented intervenor -respondent.
29
30 HOLSTUN, Board Member; RYAN, Board Chair; BASSHAM, Board
31 Member, participated in the decision.
32
33 REMANDED 07/12/2017
34
35 You are entitled to judicial review of this Order. Judicial review is
36 governed by the provisions of ORS 197.850.
07/12/17 FM 1 13 LURA
Page 1
1 Opinion by Holstun.
2 INTRODUCTION
3 This appeal concerns intervenor-respondent's (Pine Forest's) proposal to
4 expand the Caldera Springs Resort, a destination resort. The existing Caldera
5 Springs Resort is located on a 390-acre tract. Caldera Springs Resort includes
6 320 single -family residence home sites and recreational facilities. ORS
7 197.445(4) requires that a destination resort must provide "150 separate
8 rentable units for overnight lodging," and that residences offered for sale may
9 not exceed 2.5 residences for each such overnight lodging unit (OLU). The
10 existing Caldera Springs Resort relies on 38 privately owned "cabins" to satisfy
11 those requirements. The bedrooms in each of those 38 cabins have their own
12 bathroom and an outside lockable entrance, in addition to a lockable entrance
13 from the inside of the cabin. Caldera Springs Resort was approved in 2006 by
14 counting the approximately 150 bedrooms in those 38 privately owned cabins
15 as 150 separate rentable OLUs. Those OLUs are sometimes referred to as lock-
16 off rooms.
17 The expansion proposes to rely on those existing 150 OLUs in the
18 existing 38 cabins and approximately ten more that have already been approved
19 to expand the resort onto 490 more acres. The expansion would be made up of
20 up to 395 new single -family homes to be offered for sale, and an additional 95
21 OLUs to satisfy the ORS 197.445(4) maximum 2.5 residences to OLU ratio.
22 Those 95 OLUs, like the OLUs for the existing Caldera Springs resort, would
Page 2
1 be provided by 95 bedroom lock -off rooms, located in an unspecified number
2 of cabins to be constructed as part of the expansion.
3 ISSUES
4 Our initial decision in this matter remanded a hearings officer's decision
5 approving the proposed expansion. Central Oregon Land Watch v. Deschutes
6 County, 74 Or LUBA 540 (2016). On appeal, our decision was reversed and
7 remanded by the Court of Appeals. Central Oregon Land Watch v. Deschutes
8 County, 285 Or App 267, P3d (2017). In this opinion we will refer to
9 our initial decision as Caldera I and to the Court of Appeals' decision as
10 Caldera II.
11 The focus of this appeal has narrowed to two issues. One of those issues
12 is not disputed, and, depending on our resolution of the other issue, will require
13 remand to the hearings officer.' The parties dispute how LUBA should resolve
14 the other issue. Petitioner argues LUBA should resolve that issue by
15 concluding that the existing 150 lock -off rooms do not qualify as OLUs, and
16 that resolving that issue in that way will make it unnecessary for LUBA to
17 resolve the other issue because the request for approval of the proposed
1 In Caldera I, LUBA concluded the hearings officer failed to find "the
proposed expansion will be situated and managed in a manner that it will be
integral to the remainder of the resort," as required by Deschutes County Code
(DCC) 18.113.025(B). LUBA also concluded that the evidentiary record did
not clearly support a finding of compliance with that "integral" standard, so
that the hearings officer's failure to make the required finding could not be
overlooked under ORS 197.835(11)(b).
Page 3
1 expansion would have to be denied. Intervenor argues LURA should remand
2 this matter to the hearings officer to consider both issues—(1) whether the
3 lock -off rooms qualify as OLUs and (2) whether the proposal complies with the
4 DCC 18.113.025(B) "integral" requirement.
5 As already noted, ORS 197.445(4) requires that destination resorts
6 provide at least 150 OLUs and not include more than 2.5 times as many
7 residences as OLUs.2 A related statute, ORS 197.435(5)(b), defines the term
2 ORS 197.445 provides in part:
"A destination resort is a self-contained development that provides
for visitor -oriented accommodations and developed recreational
facilities in a setting with high natural amenities. To qualify as a
destination resort under ORS 30.947, 197.435 to 197.467,
215.213, 215.283 and 215.284, a proposed development must
meet the following standards:
"(4) Visitor -oriented accommodations including meeting rooms,
restaurants with seating for 100 persons and 150 separate
rentable units for overnight lodging shall be provided.
"(b) On lands in eastern Oregon, as defined in ORS
321.805:
"(A) A total of 150 units of overnight lodging must
be provided.
"(E) The number of units approved for residential
sale may not be more than 2-1/2 units for each
Page 4
1 "[o]vernight lodgings" to include individually owned units "if they are
2 available for overnight rental use by the general public for at least 38 weeks per
3 calendar year * * *."3 Whether the lock -off rooms qualify as OLUs, as defined
4 by ORS 197.435(5)(b), and can be relied upon to satisfy the ORS 197.445(4)
5 requirement for "150 separate rentable units for overnight lodging" is the
6 disputed issue on remand from the Court of Appeals.
7 THE COURT OF APPEALS' DECISION
8 A. LUBA's Interpretation of ORS 197.435(5)(b)
9 In hopes of simplifying the remand issue, we discuss our analysis of the
10 ORS 197.435(5)(b) definition of OLUs in Caldera I and the Court of Appeals'
11 analysis in support of its disagreement with LUBA's analysis in Caldera II
unit of permanent overnight lodging provided
under this paragraph."
3 ORS 197.435(5)(b)defines "[o]vernight lodgings" as follows:
"With respect to lands in eastern Oregon, as defined in ORS
321.805, permanent, separately rentable accommodations that are
not available for residential use, including hotel or motel rooms,
cabins and time-share units. Individually owned units may be
considered overnight lodgings if they are available for overnight
rental use by the general public for at least 38 weeks per calendar
year through a central reservation system operated by the
destination resort or by a real estate property manager, as defined
in ORS 696.010. Tent sites, recreational vehicle parks,
manufactured dwellings, dormitory rooms and similar
accommodations do not qualify as overnight lodgings for the
purpose of this definition."
Page 5
1 only briefly. We then turn directly to what we understand the Court of Appeals
2 to have directed LUBA to do on remand.
3 The Court of Appeals concluded that LUBA erroneously construed ORS
4 197.435(5)(b) to require that the "[i]ndividually owned units" described in the
5 second sentence of that statute must be "separately" owned. See n 3. Under
6 the Court of Appeals' interpretation of the second sentence in ORS
7 197.435(5)(b), "individually owned units" simply "means not owned by the
8 resort." Caldera 11, 285 Or App at 287-88. Under the Court of Appeals'
9 interpretation of ORS 197.435(5)(b), neither the resort -owned OLUs described
10 in the first sentence nor the privately owned OLUs described in the second
11 sentence must be separately owned. The Court of Appeals concluded:
12 "LUBA misconstrued ORS 197.435(5)(b) in determining that the
13 lock -off rooms do not qualify as overnight lodgings and that a
14 correct interpretation of the statute requires a remand to LUBA for
15 further proceedings, including, possibly, a remand to the county
16 for further fact-finding." Id. at 283.
17 It is important at this point to emphasize that while the Court of Appeals held
18 that LUBA's misconstruction of ORS 197.435(5)(b) required remand to
19 LUBA—because LUBA's initial decision relied on that misconstruction to
20 remand the appealed decision to the county—the Court of Appeals did not hold
21 that LUBA's ultimate conclusion (that the cabin lock -off rooms do not qualify
22 individually as OLUs and cannot be relied upon to comply with ORS 197.445)
23 was necessarily incorrect. The Court of Appeals directed LUBA to revisit the
Page 6
1 issue of whether the lock -off rooms can be considered separate OLUs, under a
2 correct interpretation of the relevant statutes.
3 B. The Correct Interpretation of the Relevant Statutes
4 We begin by setting out what we understand the Court of Appeals'
5 correct interpretation to be. As the Court of Appeals interprets ORS
6 197.435(5)(b), the first sentence of that statute simply does not apply in this
7 case. The court gave several reasons for reaching that conclusion. Caldera II,
8 285 Or App at 285-88. As earlier noted, the Court of Appeals concluded the
9 first sentence applies to resort -owned units, not privately owned units. The
10 Court of Appeals concluded:
11 "[T]he lock -off rooms do not qualify as overnight lodgings units
12 under the first sentence of the definition. That is, they are
13 bedrooms that are in a single-family home that is available [part -
14 time] for residential use." Id. at 291.
15 The Court of Appeals also rejected Pine Forest's argument that the lock -
16 off rooms are indistinguishable from hotel or motel rooms. Id. at 288-90. And
17 the Court of Appeals rejected LUBA's conclusion that that the lock -off rooms
18 are like doimitory rooms, which are expressly excluded from the ORS
19 197.435(5)(b) definition of overnight lodgings by the last sentence of the
20 statute. Id. at 291-92; see n 3. After reaching those conclusions, the court
21 stated "[t]he remaining issue is whether the lock -off rooms qualify as overnight
22 lodging units under the second sentence of ORS 197.435(5)(b) * * *." Id at
23 292. The Court of Appeals then identified some "factors" that do or do not
Page 7
1 have a bearing on the answer to that question. Id. We discuss those factors
2 below before attempting to answer the question.
3 1. The Lock -Off Rooms Must Actually be Separate Units
4 Pine Forest argued to the Court of Appeals that the individual lock -off
5 rooms in the cabins qualified as "separately rentable accommodations."
6 Caldera 11, 285 Or App at 292. The Court of Appeals concluded the quoted
7 language from the first sentence of ORS 197.435(5)(b) is simply irrelevant.4 Id.
8 The Court of Appeals then noted that ORS 197.445(4), which requires a
9 minimum of 150 OLUs and imposes 2.5 to 1 maximum ratio of residences to
10 OLUs requires the OLUs to be "separate rentable units," which the Court of
11 Appeals concluded is different than the "separately rentable accommodations"
12 referenced in the first sentence of ORS 197.435(5)(b):
13 "[T]he focus on `separate' shifts from availability and the
14 reservation service to a more concrete, factual determination of
15 whether the rentable unit is actually a separate unit. Further, we
16 note that `separate' means 'not shared with another:
17 INDIVIDUAL, SINGLE' or `existing by itself : AUTONOMOUS,
18 INDEPENDENT.' Webster's at 2069." Id. at 293.
19 We understand the Court of Appeals to be saying whether the lock -off rooms
20 are separate rentable units is a question of fact that has little or nothing to do
4 The Court of Appeals explained that Pine Forest was incorrectly relying
"on the factual premise that, so long as a unit is made available through a
reservation system, it is immaterial whether they are, in fact, separately rented."
Id. at 292
Page 8
1 with whether the lock -off rooms are simply made available for rent
2 individually.
3 As we understand the Court of Appeals' first factor, the hearings officer
4 must find that the lock -off rooms are actually separate units, as a matter of fact.
5 We tend to agree with the Court of Appeals that the lock -off rooms are more
6 accurately viewed as "bedrooms that are in a single-family home that is
7 available for [part-time] residential use." Caldera II, 285 Or App at 291
8 (footnote omitted). Certainly the hearings officer made no factual
9 determination that the separately rentable cabin lock -off rooms are actually
10 separate units rather than bedrooms in a single cabin unit. And even if the
11 hearings officer had made such a finding, the evidentiary record includes
12 almost no evidence that the lock -off rooms are accurately viewed as individual
13 units.5 Based on the current record and proposal, the first factor supports a
14 finding that the lock -off rooms in the cabins are not properly viewed as "units,"
15 even though they qualify as individually (privately) owned.
5 The record includes a letter from the managing director of Sunriver Resort.
Record 345. In that letter he claims cabin units "can be rented separately or
together with other units in the same Caldera Cabin," but he also concedes that
"[a]s shown by the annual report already in the record, guests at Caldera
Springs prefer to rent all the units in a cabin." Id. The latter part of that
statement is a bit of an understatement because the annual report discloses that
during the reporting period only entire cabins were rented and there was not a
single instance where an individual lock -off room was rented. Record 625-28.
As far as we can tell, there is no evidence in the record that any individual
cabin lock -off room has ever been rented as a unit, separately from the other
lock -off rooms in a cabin.
Page 9
1
2
2. The History of Goal 8
In describing the second factor, the Court of Appeals noted the adoption
3 history of Goal 8 (Recreational Needs) informed its analysis. In reviewing that
4 history the Court of Appeals quoted from a memorandum signed by the
5 Department of Land Conservation and Development (DLCD) Director, which
6 states that language that now appears in amended form in the second sentence
7 of ORS 197.435(5)(b) "was meant to count individually owned homes in 'some
8 very limited circumstances."' Caldera II, 285 Or App at 293. The Court of
9 Appeals goes on to acknowledge that because the word "units" rather than the
10 word "homes" is used in the second sentence of ORS 197.435(5)(b) the statute
11 can "allow accommodation types that are not homes," but the Court of Appeals
12 went on to find:
13 "we deem it significant that that allowance was meant to be a
14 stringent requirement. Certainly, the allowance was not intended
15 to encompass a definition of overnight lodging that was
16 susceptible to, as the hearings officer described it, being
17 `finessed."'7 Id. at 293-94.
6 The Goal 8 definitions of "Overnight Lodgings" and "Large Destination
Resort" include substantially identical language as ORS 197.435(5)(b) and
ORS 197.445(4).
7 The "finessed" language that the Court of Appeals referenced appears in
the hearings officer's decision which concludes Pine Forest has established at
least a colorable claim that the lock -off rooms qualify as OLUs:
"Caldera Springs has interpreted the state definition of
`[o]vernight lodging' in a way that turns a large single family
residence into a `cabin', and a five bedroom five bath house into
Page 10
1 We are not sure what to make of this factor. DLCD apparently was
2 concerned that privately owned houses or condominiums should be counted as
3 OLUs, provided those houses or condominiums are "available for overnight
4 rental use" for a substantial part of the year. DLCD apparently was not
5 thinking of individual bedrooms in those houses or condominiums as OLUs. In
6 any event, under the second factor, it is clear that the Court of Appeals did not
7 agree with the hearings officer's view that arguable, technical compliance with
8 the requirement that OLUs must actually be separate rentable units for
9 overnight lodging is sufficient. Rather, the evidentiary record must establish
10 that the lock -off rooms are in fact separate rentable units for overnight lodging.
11 This factor, like the first factor, supports a conclusion that the existing and
12 proposed lock -off rooms do not qualify as OLUs.
13 3. Destination Resort Statute (ORS 197.440) Policies
14 Under this factor, the Court of Appeals stated it was persuaded by
15 LUBA's point that the destination resort statutes seek to ensure the minimum
16 number of overnight lodging units are actually available to tourists seeking to
17 use the destination resort facilities and that the 2.5 residence to OLU ratio be
18 preserved. The Court of Appeals appears to have agreed with LUBA that the
five `rentable units.' With the addition of the separate entrance for
each bedroom and at least the colorable claim to allowing each
room to be rented individually, Caldera Springs appears to have
finessed DCC 18.113.060 in a way that minimally satisfies the 150
separate rentable unit standard." Record 57-58.
Page 11
1 approach proposed by Pine Forest and approved by the hearings officer only
2 nominally provides 150 OLUs "which does not seem consistent with the
3 policies set out in ORS 197.440, to attract and accommodate tourists, at least
4 compared to an approach that would actually provide 150 or more separate,
5 qualified overnight lodging units." Caldera II, 285 Or App at 294.
6 Therefore, the third factor, like the first two factors, supports a
7 conclusion that the lock -off rooms in the existing 38 cabins are not properly
8 viewed as 150 separate OLUs.
9 DECISION
10 The above factors easily lead us to conclude the hearings officer's
11 findings that the existing Caldera Springs Resort cabin lock -off rooms each
12 qualify as OLUs are inadequate. And if the cabins that may be constructed in
13 the future to preserve the 2.5 residence to OLU ratio will follow the same
14 model, they similarly will be inadequate to qualify each bedroom as an OLU.
15 The more difficult question is whether the proposal could be conditioned
16 or modified so that the cabin lock -off rooms would qualify as separate "units"
17 within a cabin. The Court of Appeals, with the benefit of legislative history
18 regarding the statues, was unwilling to go so far as to say the overnight rental
19 "units" defined ORS 197.435(5)(b) and required by ORS 197.445(4) cannot be
20 lock -off rooms in a single-family vacation residence. We therefore are
21 unwilling to adopt that reading of the statutes as well. Nevertheless, given the
22 factors articulated by the Court of Appeals and discussed above, we have
Page 12
1 difficulty imagining what conditions or modifications might allow the
2 individual cabin lock -off rooms, as currently proposed, to qualify as the
3 individual "units" described in ORS 197.435(5)(b) and ORS 197.445(4). The
4 only thing that is clear is that cabin bedrooms that, are in theory separately
5 rentable and happen to have their own bathroom and lockable inside and
6 outside entrances, but for which there is no evidence have ever been rented
7 separately from the other bedrooms in the cabin, are not appropriately viewed
8 as individual "units." Something more will be required to ensure that they are
9 in, fact individual units.
10 For the reasons set out above, we again sustain petitioner's second
11 assignment of error. Our decision in Caldera 1 that sustained petitioner's fifth
12 assignment of error challenge under the DCC 18.113.025(B) "integral"
13 standard was not affected by the Court of Appeals' decision in Caldera 11.
14 The county's decision is remanded.
Page 13
Certificate of Mailing
I hereby certify that I served the foregoing Final Opinion and Order for LUBA No. 2016-065
on July 12, 2017, by mailing to said parties or their attorney a true copy thereof contained in a
sealed envelope with postage prepaid addressed to said parties or their attorney as follows:
David Doyle
Deschutes County Counsel
1300 NW Wall Street, Suite 205
Bend, OR 97701
Paul D. Dewey
Attorney at Law
1539 NW Vicksburg Ave
Bend, OR 97701
Steven P. Hultberg
Radler White Parks & Alexander LLP
PO Box 2007
Bend, OR 97709
Dates this 12th day of July, 2017.
Burgess
Para k. gal
Kristi Seyfried
Executive Support Specialist
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Subject:
Name
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BOARD OF COMMISSIONERSMEETING
REQUEST TO SPEAK
Citizen Input or Testimony
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Date: Y1
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Phone #s
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In Favor
Neutral/Undecided Opposed
Submitting written documents as part of testimony? ` Yes ` No
If so, please give a copy to the Recording Secretary for the record. Vi
SUBMIT COMPLETED REQUEST TO
RECORDING' SECRETARY BEFORE MEETING BEGINS
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Subject:
Name
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BOARD OF COMMISSIONERSMEETING
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In Favor Neutral/Undecided Opposed
Submitting written documents as part of testimony? Yes No )
If so, please give a copy to the Recording Secretary for the record.
G,
SUBMIT COMPLETED REQUEST TO
RECORDING SECRETARY BEFORE MEETING BEGINS
cc f1
Community Development 8/29/18
Notice of Public Hearing
File Number:247-15-000464-CU, 247-18-000009-A
Caldera Springs Expansion — Traffic Impact Study requested for North side Entrance
We live and work in the Sunriver Business District. The intersection at Venture Laneoff
Century drive is already very impacted with crazy and often rushed traffic with access to
the only gas station and school district in town.
Approximately 50% of the new Caldera Residents (245 loi`tg units with multiple
drivers) will come through that intersection to gain access to their homes on the north
side of the proposed Caldera Expansion.
I request a Traffic Impact Study be done before the expansion is approved.
I will be attending the hearing today. We just received the hearing notice as we are new
to the area.
Bonnie Marder and Charles Dmarco
11
310) 902-0275
v �
Cc Peter Russell,Senior Transportation Planner
Cc Anthony Raguine, Senior Planner
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LAND USE SUMMARY HOMESITES 148.7 AC 24.2%
VISITOR ORIENTED ACCOMMODATIONS / RESORT CORE 31.6 AC 5.2%
RESORT SERVICES 1.1 AC 0.2%
OPEN SPACE 160.9 AC 26.2%
WILDLIFE MITIGATION OPEN SPACE 220.8 AC 35.9%
ROADS 51.0 AC 8.3%
TOTAL 614.1 AC 100.0%
OPEN SPACE 160.9 AC 26.2%
WILDLIFE MITIGATION OPEN SPACE 220.8 AC 35.9%
TOTAL OPEN SPACE 381.7 AC 62.1%
CALDERA SPRINGS HOMESITES 320
CALDERA SPRINGS OVERNIGHT LOGGING UNITS 197
TOTAL 517
ANNEXATION HOMESITES 340
ANNEXATIONQVERNIGHT LOGGING UNITS 150
TOTAL 490
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Subject:
Name
Address
BOARD OF COMMISSIONERS MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
tet raedo Oct -
1
Date:
0 L
134.4ei 0,2`2'2 a
Phone #s L- Q-
E -mail address
In Favor
Neutral/Undecided
Submitting written documents as part of testimony? Yes
If so, please give a copy to the Recording Secretary for the record.
Opposed
SUBMIT COMPLETED REQUEST TO
RECORDING SECRETARY BEFORE MEETING BEGINS