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2018-456-Minutes for Meeting September 05,2018 Recorded 11/1/2018TES BOARD OF COMMISSIONERS 1300 NW Wall Street, Bend, Oregon (541) 388-6570 Recorded in Deschutes County Nancy Blankenship, County Clerk Commissioners' Journal CJ2018-456 11/0112018 3:12:04 PM cStaG IIIIIIluIIIIl8-456 ‘j1 E201 IIIIIHI 1111 BUSINESS MEETING MINUTES 9:00 AM WEDNESDAY, September 5, 2018 BARNES & SAWYER ROOMS Present were Commissioners Phil Henderson and Anthony DeBone. Commissioner Baney was present at 9:10 a.m. Also present were Tom Anderson, County Administrator; and Sharon Keith, Board Executive Assistant. No identified representatives of the media were in attendance. This meeting was audio and video recorded and can be accessed at the Deschutes County Meeting Portal website http://deschutescountyor.igm2.com/Citizens/Default.aspx CALL TO ORDER: Chair DeBone called the meeting to order at 9:03 a.m. PLEDGE OF ALLEGIANCE CITIZEN INPUT: Ken Katzeroff: spoke on behalf of the Cadwell family and Tanager. Mr. Katzeroff was here for a request regarding the proposal from Tanager that includes a series of 8 property line adjustments. Tanager will be withdrawing the one and reapplying for all 8. Mr. Katzeroff requested the Board direct staff to process these administratively. Commissioner Baney suggested bringing this item to a Work Session for further discussion. BOCC BUSINESS MEETING SEPTEMBER 5, 2018 PAGE 1 OF 6 Tom Bishop in light of the proposal he requests the opportunity to provide written comments prior to the Board makes a decision. Commissioner DeBone proposes placing this item on the September 12 Work Session. CONSENT AGENDA: Before the Board was Consideration of Approval of the Consent Agenda. Consensus was to pull Items 1, 2, and 3 for discussion. HENDERSON: BAN EY: Move approval of Consent Agenda Item 4 Second. VOTE: BAN EY: Yes. HENDERSON: Yes. DEBONE: Chair votes yes. Motion Carried Consent Agenda Items: 1. Consideration of Board Signature of Resolution No. 2018-036, Initiating the Vacation of a Portion of a Slope Easement Along Skyline Ranch Road and Meeks Trail 2. Consideration of Board Signature of Order No. 2018-060, Vacating a Portion of a Slope Easement Along Skyline Ranch Road and Meeks Trail 3. Board Consideration of Acceptance of BrightSide Animal Center Repayment of County Loan 4. Consideration of Board Signature of Letter Appointing Toby Rey to the Forest View Special Road District ACTION ITEMS Consent Agenda Item 1 as pulled for discussion: Consideration of Board Signature of Resolution No. 2018-036, Initiating the Vacation of a Portion of a Slope Easement Along Skyline Ranch Road and Meeks Trail County Engineer Cody Smith presented this item to explain the vacation requests. BOCC BUSINESS MEETING SEPTEMBER 5, 2018 PAGE 2 OF 6 BAN EY: Move approval HENDERSON Second VOTE: BANEY: Yes HENDERSON: Yes DEBONE: Chair votes yes. Motion Carried Consent Agenda Item 2 as pulled for discussion: Consideration of Board Signature of Order No. 2018-060, Vacating a Portion of a Slope Easement Along Skyline Ranch Road and Meeks Trail HENDERSON: Move approval BAN EY: Second. VOTE: BAN EY: Yes. HENDERSON: Yes. DEBONE: Chair votes yes. Motion Carried Consent Agenda Item 3 as pulled for discussion: Board Consideration of Acceptance of BrightSide Animal Center Repayment of County Loan Members of BrightSide were present with final payment of the loan and presented a check to the Board. Commissioner Baney explained the history of the organization and of their service to the community. BANEY: Move approval HENDERSON Second VOTE: BAN EY: Yes HENDERSON: Yes DEBONE: Chair votes yes. Motion Carried BOCC BUSINESS MEETING SEPTEMBER 5, 2018 PAGE 3 OF 6 5. SECOND READING: Ordinance No. 2018-007, Amending County Code Relative to the County Internal Auditor and Audit Committee BANEY: Move approval of second reading by title only HENDERSON: Second Chair DeBone read the ordinance into the record BANEY: Move adoption HENDERSON: Second VOTE: BANEY: Yes HENDERSON: Yes DEBONE: Chair votes yes. Motion Carried 6. PUBLIC HEARING: Appeal of Hearings Officer's Decision that a Paved Taxiway Violates the Open Space Requirement for Eagle Air Estates Cluster Subdivision. Commissioner DeBone announced he needed to leave the meeting shortly and passed the hearing to Commissioner Henderson to act as chair. Peter Russell, Community Development outlined the hearing procedures. Commissioner Baney noted this particular property has received funding through Connect Oregon and all of that work is public and in the public record. Commissioner DeBone and Henderson also do not have conflict. Hearing no conflicts or challenges, Commissioner Henderson opened the public hearing. Commissioner Baney suggested leaving the written record open since Commissioner DeBone needs to leave the meeting prior to the end of the hearing. The Board concurs. Mr. Russell presented the staff report. BOCC BUSINESS MEETING SEPTEMBER 5, 2018 PAGE 4 OF 6 Mike Morgan presented the history of his dispute with the Sisters Airport. Mr. Morgan reviewed the hearings officer's decision. Liz Dickson presented testimony on behalf of Julie and Benny Benson. The Bensons' oppose Mr. Morgan's appeal because they feel the hearings officer made the right determination. At the time of 10:33 a.m., Commissioner DeBone excused himself for another scheduled meeting. Steve Marsan presented testimony and is a property owner. Benny Benson, co-owner of the Sisters airport presented testimony and stated the airport understands impact and provided a photo of the taxiway. RECESS: At the time of 11:24 a.m., the Board took a recess and the meeting was reconvened at 11:29 a.m. lulie Benson presented testimony co-owner of Sisters airport and clarified the history of the airport and improvements made over the years. Tom Bishop presented testimony as a resident of Deschutes County and requests the written record be kept open for at least 7 days. Jim Hamilton presented testimony and commented on the fantastic job the Benson's have done with the airport. Mark Edmonds deferred to Mr. Hamilton's testimony. Commissioner Henderson requested during the open record time would like full photos of the terrain and requested additional information on the safety concerns. Mr. Morgan provided rebuttal testimony and addressed the confusion of common area and open space. BOCC BUSINESS MEETING SEPTEMBER 5, 2018 PAGE 5 OF 6 Acting Chair Commissioner Henderson closed the oral portion of the hearing. Commissioner Baney suggested the 7-7-7 time line for the hearing. Mr. Russell reviewed the timeline. OTHER ITEMS: None were offered. ADJOURN Being no further items to come before the Board, the meeting was adjourned at 12:05 p.m. DATED this Day of ()64 `' . 2018 for the Deschutes County Board of Commissioners. BOCC BUSINESS MEETING ANTHONY DEBONE, CHA PHILIP G. ( FENDERSON, VICE CHAIR TAMMY BANEY6 6MISSIONE_R SEPTEMBER 5, 2018 PAGE 6 OF 6 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, SEPTEMBER 5, 2018 Barnes Sawyer Rooms - Deschutes Services Center - 1300 NW Wall Street - Bend This meeting is open to the public. To watch it online, visit www.deschutes.org/meetings. Business Meetings are usually streamed live online and video recorded. Pursuant to ORS 192.640, this agenda includes a list of the main topics that are anticipated to be considered or discussed. This notice does not limit the Board's ability to address other topics. Meetings are subject to cancellation without notice. CALL TO ORDER PLEDGE OF ALLEGIANCE CITIZEN INPUT This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues that are not already on the agenda. Please complete a sign-up card (provided), and give the card to the Recording Secretary. Use the microphone and clearly state your name when the Board Chair calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing not being conducted as a part of this meeting will NOT be included in the official record of that hearing. If you offer or display to the Board any written documents, photographs or other printed matter as part of your testimony during a public hearing, please be advised that staff is required to retain those documents as part of the permanent record of that hearing. CONSENT AGENDA 1. Consideration of Board Signature of Resolution No. 2018-036, Initiating the Vacation of a Portion of a Slope Easement Along Skyline Ranch Rd and Meeks Trail Board of Commissioners Business Meeting Agenda of 2 Wednesday, September 5, 2018 Page 1 2. Consideration of Board Signature of Order No. 2018-060, Vacating a Portion of a Slope Easement Along Skyline Ranch Rd and Meeks Trail 3. Board Consideration of Acceptance of BrightSide Animal Center Repayment of County Loan 4. Consideration of Board Signature of Letter Appointing Toby Rey to the Forest View Special Road District ACTION ITEMS 5. SECOND READING: Ordinance No. 2018-007, Amending County Code Relative to the County Internal Auditor and Audit Committee - David Givans, Internal Auditor 6. PUBLIC HEARING: Appeal of Hearings Officer's Decision that a Paved Taxiway Violates the Open Space Requirement for Eagle Air Estates Cluster Subdivision - Peter Russell, Senior Planner OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories. Executive sessions are closed to the public; however, with few exceptions and under specific guidelines, are open to the media. ADJOURN Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.or•/meetin:calendar Meeting dates and times are subject to change. If you have question, please call (541) 388-6572. Board of Commissioners Business Meeting Agenda of 2 Wednesday, September 5, 2018 Page 2 Lir Subject: Name Address BOARD OF COMMISSIONERS' `MEETING REQUEST TO SPEAK Citizen Input or Testimony Date: Phone #s X03 uc) 5g3 E-mail address In Favor c \HA -3 Up NN\ Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS September 5, 2018 Deschutes County Board of Commissioners 117 NW Lafayette Ave. Bend, OR 97701 io Rot pc_ — t -)0(,)A) don/(.fi 5bov 63006v3 ,qac ' ✓ pri4L. LGc ® Via Hand Delivery TANAGER Re: Tanager Development Property Line Adjustments Chair DeBone, Commission Henderson, Commissioner Baney, I represent Tanager Development, LLC ("Tanager") and KC Development Group, LLC ("KCDG"). On August 23, 2018, this Board approved applications for a planned development proposed by Tanager, and over KCDG lands, file nos. 247 -17 -000636 -CU and -637-TP (the "Decision"). As part of the proposal for the planned development, Tanager sought a series of eight property line adjustments ("PLAs"). However, due to a Court of Appeals decision, Tanager withdrew the PLAs and submitted the first in the series or proposed adjustments. The Court of Appeals later determined that a series of property line adjustments may be accomplished in a single land use application, provided that the deeds for each adjustment are recorded in the correct order. Bowerman v. Lane County, 287 Or App 383 (2017); on reconsideration 291 Or App 651 (2018). Later today Tanager will be applying for the eight PLAs, consistent with the Decision and state law. The Board's Decision determined that the PLAs were feasible. Tanager requests that the Board directs staff to make an expeditious administrative (ministerial) decision, approving the PLAs. In Deschutes County, generally speaking, property line adjustments are not considered to be "land use decisions" and are ministerial in nature. This is because PLA decisions simply apply non -discretionary state and local standards. However, as the Board may recognize, the land use history surrounding this project has been contentious and the PLA applications may be appealed. If the administrative decision on the PLAs is appealed, we ask that the Board calls up that decision for review, similar to its actions on marijuana land use applications. As part of this request, Tanager consents to pay the appeal fee to the Board (even if it is not the appellant), instead of the traditional first appeal of right fee of $250. Review by the Board will enable us to move forward with the project, consistent with the Board's Decision on the planned development. It will also provide efficiency in review for staff, and hopefully enable Tanager to send a consolidated review of the project to LUBA, instead of first requiring review by a TANAG hearings officer before asking for review by the Board in six or eight months. There are many additional practical reasons for proceeding in the manner discussed above. Tanager, KCDG, and the Cadwell family are extremely thankful for the time and thoughtful consideration before the Board over the past several months. We make the above request not to receive special treatment or to "jump the line", but to proceed as originally applied to the county. It will also provide finality for all parties, including the county, for this four-year long process. Thank you for your consideration. Very Truly Yours, J. Kenneth Katzaroff General Counsel Tanager Development, LLC KC Development Group, LLC 503-453-0873 TES G 2 off. a -< Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Business Meeting of September 5, 2018 DATE: August 30, 2018 FROM: Erik Kropp, Administrative Services, 541-388-6584 TITLE OF AGENDA ITEM: Board Consideration of Acceptance of BrightSide Animal Center Repayment of County Loan RECOMMENDATION & ACTION REQUESTED: Accept the loan repayment and direct staff to issue a Satisfaction Note of Repayment to BrightSide Animal Center. CONTRACTOR: BrightSide Animal Center AGREEMENT TIMEFRAME: Starting Date: Ending Date: INSURANCE: Insurance Certificate Required: Yes or No Insurance Review Required by Risk Management: Yes or No BACKGROUND AND POLICY IMPLICATIONS: In December 2008, Deschutes County entered into a Rehabilitation Loan Agreement with the Humane Society of Redmond (aka, Brightside Animal Center) under which the County satisfied in full the long-term outstanding debt of the humane society. TAs of July 31, 2018, the outstanding loan balance is $549,607.72. On September 4, 2018, staff will calculate the outstanding loan balance as of August 31, 2018 which is the amount to satisfy the loan. BrightSide Animal Center representatives plan to present the Commissioners a check paying off the full balance of the loan at the September 5, 2018 Business Meeting. Originally, the loan came from the Solid Waste Closure Fund. Several years ago the Solid Waste Closure Fund was repaid in full (including interest) from the County's General Fund. The repayment of the loan is included in the County's FY 2019 Budget in Fund 080 "Humane Society." FISCAL IMPLICATIONS: Repayment of loan ATTENDANCE: Mark Crose and Pat Bowling, BrightSide Animal Center. -TES Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Business Meeting of September 5, 2018 DATE: August 27, 2018 FROM: Peter Russell, Community Development, 541-383-6718 TITLE OF AGENDA ITEM: PUBLIC HEARING: Appeal of Hearings Officer's Decision that a Paved Taxiway Violates the Open Space Requirement for Eagle Air Estates Cluster Subdivision RECOMMENDATION & ACTION REQUESTED: Receive written and oral public testimony on 247-18-000626-A. BACKGROUND AND POLICY IMPLICATIONS: Eagle Air Estate (EAE) received approval for a 12 -lot cluster subdivision with aircraft hangars in CU-89-68/TP-89-701. A condition of approval required 65% of the land be in Open Space and development be confined to the remaining 35%. Open Space, aka Common Area, was identified on the EAE plat and identifed on the County Assessors Map as 14-10-33D, Tax Lot 99. The paved taxiway has been in use for roughly 30 years, leading from EAE to the north end of the runway at Sisters Eagle Airport. A code enforcement complaint filed in May 2017 alleged the paved taxiway violated the Open Space requirement of CU-89-68/TP-89-701. In response, EAE Homeowners (EAE HOA) filed a declaratory ruling (247 -18 -000138 -DR) in February 2018, seeking a ruling that the paved taxiway did not violate the open space requirement. After the May 22 public hearing, the hearings officer issued a July 25 decision that the paved taxiway did violate the Open Space requirement based on the planning requirements and definitions in existence when CU-89-68/TP-89-701 was approved. Mike Morgan, an EAE resident who provided testimony in 247 -18 -000 -138 -DR, filed a timely appeal on Aug. 6. The hearings officer's decision turned primarily on the definitions of open space, present use, development, and enhanced recreational opportunities. FISCAL IMPLICATIONS: None. ATTENDANCE: Peter Russell, Senior Transportation Planner, CDD. STAFF MEMORANDUM TO: Board of County Commissioners FROM: Peter Russell, Senior Transportation Planner DATE: August 23, 2018 HEARING: September 5, 2018 RE: VI MU Appeal of hearings officer's decision that paved taxiway violates 65% open space requirement of Eagle Air Estates Cluster Subdivision (247- 18-000626-A/247-18-000138-DR) 247- 18-000626-A/247-18-000138-DR) The Board of County Commissioners (Board) will hold a public hearing on September 5, 2018, at 9:00 a.m. to hear an appeal of a hearings officer's denial of 247 -18 -000138 -DR. (By this memo, staff includes the entire record of 247 -18 -000138 -DR into the record for 247-18-000626-A). Eagle Air Estates Homeowners Association (EAE HOA), had applied for a declaratory ruling on the fact -specific controversy that a paved taxiway did not violate the open space requirements of the EAE cluster subdivision. CU-89-68/TP-89-701 as a condition of approval required 65% of the EAE site had to remain in open space. The subject property for the open space is described on the County Assessor's Tax Map as 14-10-33D, Tax Lot 99. (See Figures 1 and 2.) The hearings officer ruled against EAE HOA, deciding the existing paved taxiway did violate the open space requirements. Mike Morgan, a resident of EAE and a party with standing via his written participation in the public hearing process, filed a timely appeal. I. Summary EAE HOA filed a declaratory ruling (247 -18 -000138 -DR) that an approximately 30 -year-old paved taxiway did not violate the 65% open space requirement set forth in the subdivision's approval under CU-89-68/TP-89-701. The land use was filed in response to a code enforcement complaint lodged against EAE HOA, a 12 -lot subdivision bordering the west edge of the Sisters Airport. The hearings officer based his decision on several critical factors: present use of the property at the time of the original 1989 land use application, the definition of open space, and the definition of development. These are discussed more fully below. While various other issues were raised by public testimony and staff, the hearings officer purposely limited the analysis to whether the topic Figure 1, EAE Open Space, aka Common Area, 14-10-33D, Tax Lot 99 Figure 2, EAE Paved Taxiway Page 2 of 6 was relevant to the specific question asked in 247 -18 -000138 -DR: "Declaratory ruling that the paved taxiway does not violate 'open space' requirement." II. 150t'' day issuance of a local land use decision The 150' day for a local land use decision for 247 -18 -000138 -DR is October 27, 2018. As this is a Saturday, the final day to issue a decision is Friday, October 26. EAE submitted 247 -18 -000138 -DR on February 18 and the Planning Division deemed it complete on March 9. A public hearing was held May 22, at which time the applicant and opponents agreed to the following timeline: May 29 for additional written comment, June 5 for mutual rebuttal, and June 18 for final rebuttal. After final rebuttal, the attorney for the opponent argued the applicant's lawyer had submitted new evidence as part of final rebuttal. The applicant agreed to toll the clock for an additional 10 days to give the hearings officer sufficient time to review the issue. The hearings officer ruled no new evidence had been submitted and issued his decision on July 25. The various tollings moved the 150th day initially from August 6 to September 12. The EAE HOA president notified staff via an August 13 e-mail to toll the clock for 45 days, resulting in the current 149th day of October 26. Mike Morgan, an EAE resident who submitted written testimony, filed a timely appeal on August 6, requesting the Board hear an appeal of the hearings officer's decision and that it be held de novo. (Attachment 1.) The Board at an August 22 work session agreed to hear the appeal and to hear it de novo, passing Board Order 2018-057. (There is a scheduled October 23, 2018, hearing before a Code Enforcement hearings officer on the paved taxiway. Staff has coordinated with the Code Enforcement specialist handling the case against EAE to reschedule that hearing, if needed, to a date certain after the Board's decision in 247- 18-000626-A.) III. Key issues in hearings officer's decision Many issues were raised in the written and oral testimony regarding 247 -18 -000138 -DR. The hearings officer's decision repeatedly turned on the sole question posed in the land use application that the paved taxiway did not violate the 65% open space requirement of Eagle Air Estates. (Attachment 2.) In Table 1, staff calls out the several major issues and the hearings officer's determination on the applicability of the topic to the declaratory ruling. The hearings officer only ruled on topics germane to the fact -specific controversy. The paved taxiway lies within the common area of EAE on land zoned Rural Residential (RR -10). The hearings officer's decision on pages 11-13 summarized the major issues and which ones were within his purview to rule upon based on the subject application and which were not. The hearing's officer in his decision narrowed down the focus to determining what is meant by the following key issues: Page 3 of 6 • Definition of Present Use • Definition of Open Space • Definition of Development • Definition of Enhance Recreation Opportunities Table 1. Hearings Officers Ruling on Relevance to Paved Taxiway in Open Space Topic Relevant Page(s) in HO Decision Paved taxiway allowed in Open Space Yes 12 Paved taxiway violate 65% Open Space Yes 12 Open Space definition Yes 19-20 Present Use definition Yes 17-22 Flying as recreational activity Yes 21 Development definition Yes 17-22 Paved taxiway allowed in RR -10 No 11 Taxiway not shown on EAE final plat No 11 Status of legal access to Sisters Airport No 12 Safety of location of paved taxiway No 13 Paved taxiway and runway flooding No 13 Home setbacks from runway No 13 Calculation of 65% Open Space No Not addressed The hearings officer found "present use" as used in PL -15 Section 1.030(80), which was the controlling document at the time of the application of CU-89-68/TP-89-701, meant the condition of the land prior to the presence of the subdivision and its paved taxiway. Please refer to Pages 17-22 of the hearings officer's decision. The hearings officer focused his decision on the section of the CU-89-68/TP-89-701 where that 1989 hearings officer on Page 2 of his approval findings described the then -present use of the land as follows: "The subject area is approximately 60 acres in size, and consists of four (4) tax lots. The topography is generally level and has a vegetative covering of bunch grasses, bitterbrush, juniper and pine trees. The site is undeveloped and has an old mining pit..."1 (Emphasis added.) The hearings officer's decision cited the applicable land use code in 1989, Public Law PL -15 and the definition of Open Space. PL -15 at Section 1.030 (80) Open Space: "Land used for agricultural or forest uses, and any land area that would, if preserved and continued in its present use conserve and enhance natural or scenic resources; protect air, streams, or water supply: promote conservation of soils, wetlands, beaches, or 1 Quoted on Page 20 of hearings officer's decision in 247 -18 -000138 -DR, which in turn quotes Page 2 of CU-89-68/TP-89- 701. Page 4 of 6 marshes; conserve landscaped areas such as public or private golf courses; that reduce pollution and enhance the value of abutting or neighborhood parks, forests, wildlife preserves, nature reservations or other open spaces; enhance recreational opportunities; preserve historic, geological and archeological sites; promote orderly urban development; and minimize conflicts between farm and non-farm uses."(Emphasis added.) The hearings officer also referenced PL -15 Section 8.050 (16) which states in relevant part regarding cluster developments: ':..the human activities, including all development and alterations of the natural landscape, will be limited to 35 percent of the land and 65 percent will be kept in open space." (Emphasis added.) The applicant had argued the present use was a paved taxiway which in turn enhanced the recreational opportunity of flying. Based on the above, the hearings officer decided that the term "present use" meant prior to the land use approved by CU-89-68/TP-89-701, a paved taxiway was development due to the placing of asphalt on the land; a paved taxiway, being development, was not allowed in Open Space. The hearings officer agreed that flying private planes was a form of recreation and that either a paved or unpaved taxiway did enhance those opportunities and thus complies with PL -15 Section 1.030(80). Please refer to Page 21 of hearings officer's decision. While public testimony raised the issue of how the 65% open space requirement is calculated and shown on the approved EAE plat, the hearings officer limited his ruling specifically and purposely to the application's ruling request of whether a paved taxiway violated the open space requirement. The hearings officer did not rule on how the 65% open space was calculated. IV. Appellant's statement Mike Morgan in his Notice of Appeal raised several issues, including compliance with the 65% open space requirement from a mathematical calculation standpoint and alleged elements of the recorded plat were inconsistent with DCC 17.24 (Final Plat). The appeal submittal questioned whether common space and open space are synonymous; what is meant by the term development as it applies to the 65% requirement; what is the measurement tolerance for the 65% calculation; and what is meant by the term sufficient In DCC 17.24.100(B). Mr. Morgan stated "[A] de novo review will be required because an amended plat for Eagle Air Estates will be submitted." Staff Comment: This is an appeal of a declaratory ruling, which under Deschutes County Code (DCC) 22.40.010(A)(2) involves interpreting "a provision or limitation in a land use permit issued by the County...in which there is doubt or a dispute as to its meaning or application." In this case, the Page 5 of 6 contested term was open space, which led to determinations on the relationship between the terms present state, development, and enhanced recreational opportunities. While parties can introduce new materials in a de novo hearing, a modification of the plat approved under CU-89-68/TP-89-701 cannot be modified by a declaratory ruling. Specifically, DCC 22.40.010(C) states "[D]eclaratory rulings shall not be used as a substitute for an appeal of a land use decision or for a modification of an approval." Declaratory rulings are for the resolution of fact - specific controversies, as noted in DCC 22.40.010(B). In this case, the hearings officer ruled the applicable fact -specific controversy was whether a paved taxiway violates the 65% open space requirement. Please see Page 8 of hearings officer's decision. Staff notes the hearings officer did not rule on the calculation of the 65% open space or the details of what was or was not shown on the approved plat. Regarding compliance with DCC 17.24, staff notes the appeal period for CU-89-68/TP-89-701 and its final plat expired almost three decades ago. V. Next steps After the Board receives oral and written testimony in the September 5 public hearing, the Board has several options. These are presented in no particular order of priority. • Continue the hearing to a date certain • Close the oral record and leave the written record open to a date certain • Close both the oral and written record and set a date certain for deliberation • Close both the oral and written record and deliberate Attachments 1. Mike Morgan appeal materials 2. Hearings Officer's decision Page 6of6 www.deschutes.org/cd Type of Application: Declaratory Ruling - NA Land Use Application Declaratory Ruling - NA 247 -18 -000138 -DR APPLICATION DESCRIPTION DESCHUTES COUNTY 117 NW Lafayette Avenue PO Box 6005 Bend,OR 97703 541-388-6575 cdd-webmaster©d Description of Work: Declaratory Ruling to determine that paved taxiway does not violate 'open space' requirement for Eagl Property Address: 0 Pilot Dr, Sisters, OR 97759 Applicant: EAGLE AIR ESTATES HOMEOWNERS ASSOC Fee Description LOCATION INFORMATION Parcel: 141033D000099 - Primary APPLICANT INFORMATION Business Name: Address: EAGLE AIR ESTATES HOMEOWNERS ASSOC Schmid Malone Buchanan LLC Appeals to Board of County Commissioners Deposit Appeals to Board of County Commissioners Additional Fee (20% of original fee) Declaratory Ruling Hearings Officer Deposit Printed on: 08/06/2018 15860 PILOT DR Owner: EAGLE AIR ESTATES HOMEOWNERS ASSOC Address: 15860 PILOT DR SISTERS OR 97759 550 NW Franklin Ave #378 APPLICATION FEES Igo A Ouantity schutes.org City: State: Zip SISTERS OR 97759 Bend 1.00 Qty 302.40 Amount 1.00 Qty 1.00 Qty Total Fees: OR 97703 Amount $2,718.00 $302.40 $1,512.00 $5,000.00 $9,532.40 Deschutes County Transaction Receipt Office: Bend )L,cou-) 01 ▪ 0 N. >00N o W Lo N 0 N 1 X pa+ p m 0D L 0 M 412 3 a --10) c U 92 z �N r. N .--1 f0 e-/ E _ow v v u Receipt Date: 8/6/18 Worksite address: 0 Pilot DR, Sisters, OR 97759 Parcel: 141033D000099 Paid amount Account code 2956150 341311 2956150 341311 .12 RS a 0 LLL c c 0 0 0 *E E a� E E _ 0 U as c c c -c a 0 o 0 0 o _ 0 0 0 : o P. '2 v .. co cv w c m m �i as O O O p w ... 0 c O w O N a o a a a 'a O Q 0 Q Q 0 0 0 0 E m E ael L. Morgan 302.40 Amount O 0 ti a� .n E Lc 0 O N 2 Q7 E m a d a Cashier: Nathaniel Miller FIN TransactionReceipt pr Printed: 8/6118 3:46 pm PV:01 ANAMfaaMIXAMMIMIMAM'IMMIMMMII-MWMMIMMUMMUSWZOMMICEMMMOIMMO • APPEAL APPLICATION - BOARD OF COUNTY COMMISSIONERS FEE: ..10004° EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. 4. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal Invalid. Any additional comments should be included on the Notice of Appeal. Staff cannot advise a potential appellant as to whether the appellant Is eligible to file an appeal (DCC Section 22.32.010) or whether an appeal Is valid. Appellants should seek their own legal advice concerning those issues. Appellant's Name (print): i --.4e4-/ rX)(.-k Phone: (,r4/ ) T4q -88f8 Mailing Address: City/State/Zip: SW Ta- —17 er/2 Land Use Application Being Appealed: q 7 AR o 6/1g8 12... Property Description: Township Range Section Tax Lot 47 g3 ID 0000 9 Appellant's Signature: Date: d 2e g - BY SIGNING THIS APPLICATION AND PAYING THE APPEAL FEE, THE APPELLANT UNDERSTANDS AND AGREES THAT DESCHUTES COUNTY IS COLLECTING A DEPOSIT FOR COSTS RELATED TO, PREPARING FOR, AND CONDUCING A PUBLIC HEARING. THE APPELLANT WILL BE RESPONSIBLE FOR THE ACTUAL COSTS OF THE HEARING PROCESS. THE AMOUNT OF ANY REFUND OR ADDITIONAL PAYMENT WILL DEPEND UPON THE ACTUAL COSTS INCURRED BY THE COUNTY IN REVIEWING THE APPEAL. Except as provided in section 22.32.024, appellant shall provide a complete transcript of any hearing appealed, from recordings provided by the Planning Division upon request (there is a $5.00 fee for each recording copy). Appellant shall submit the transcript to the planning division no later than the close of the day five (5) days prior to the date set for the de novo hearing or, for on -the -record appeals, the date set for receipt of written records. 11 7 NW Lafaye[Le Avenue, Bend, Oregon 97703 1 P0.Box 6005, Bend, 09 97708-6005 '5 (.41 -h7' 60 rririrebric.-,rh, it os (-Ira www riperhiitec ra/rri NOTICE OF APPEAL t 4tA /74flthiAl 50kt £J ,1&f or= Z47— 1g – Dr, e4r9- /,e. 4 der "al i/Z5 ai/V /e.7e---e,v)/(2L,I /EveAl-tts'ex- "9---A/47120e7 P607-^ SZ.,( /1/fre_ 5/ JtW // z 2 r ("--1)// fLJ /$)] Z/ ) /74. )4,I (Thls page may be photocopied if additional space is needed.) Date: August 6, 2018 To: Deschutes County Board of Commissioners Copy to: Peter Russell Nick Lelack From: Mike Morgan, party of record and lot owner in EAE Subject: A de novo review of the Hearing Officer's Decision in FILE #247 -18 -000138 -DR is required because an amended plat, and perhaps other new documents, will be entered into the record. The Hearings Officer failed to take adequate notice of, and give effect to, the following in the record of File #247 -18 -000138 -DR regarding Eagle Air Estates (EAE): --Memorandum from Senior Transportation Planner Peter Russell to EAE President Bryan Paxson dated August 4, 2016, copy attached. --The lag two paragraphs of my letter dated February 2, 2018, copy attached. --Paragraphs 2,3, and 4 of the letter from Steve Marsan dated February 6, 2018, copy attached. --My email to Peter Russell; dated March 22, 2018, with attachment, copy attached. --My letter to Hearings Officer Gregory Frank, dated May 28, 2018; the last paragraph on page one and the first paragraph on page two, copy attached. --The letter from I'eter Russell to Hearings Officer Gregory Frank dated May 2, 2018, in its entirety, copy attached. --The EAE final plat recorded June 6, 1990, copy attached. --The Findings and Decision, dated August 8, 1989; re: CU-89-68/TP-89-701, by Hearings Officer Edward Fitch, copy attached. Appellant will argue and prove, beyond any reasonable doubt, the following: --The EAE development is, and always has been, in compliance with the 65% open space rule. This land use action was recommended by county staff to resolve a complaint filed by David Campbell, Manager of the Sisters Airport, alleging the 30 year old EAE taxiway violates the 65% open space rule. It clearly does not and there is nothing in the DR record that su ests county staff verified EAE was not in compliance. Mr. Campbell subsequently filed two more complaints against lot owners in EAE but those were dropped. He is not an innocent third party interested in preserving open space. He is an employee of Benny and Julie Benson, owners of the Sisters Airport, and it's wrong for the county to have allowed itself to be manipulated into a local dispute. Campbell's actions are vindictive and in retaliation for EAE removing the unlawful 300 foot runway extension constructed on EAE common property without permits and without permission. This adverse relationship has been known by county staff long before Campbell filed his complaint. Based on recent measurements, the EAE paved taxiway changes the 65% calculation shown on the recorded plat by less than 0.2%. But, there are problems with the recorded plat. A land use action should not have been required to resolve a petty complaint filed by persons known by county staff to be adverse to EAE. It seems common sense and reasonableness have been abandoned. --Hearings Officer Edward Fitch in 1989 found the proposed 12 lot cluster development is "...designed to be an airpark subdivision". "The private road, as proposed, would also connect to the northern end of the Sisters Airstrip...lot owners could taxi their personal planes out onto the private road and then to the airstrip" (page 2, paragraph 3, Fitch Findings of Fact). He specifically found "...that building permits can be issued prior to complete utility and road improvements in the subdivision". --The final plat recorded June 6, 1990, and actions by county staff, do not comply with the following specific provisions of DCC Chapter 17.24: a) 17.24.060 E - The exact location and width of streets and easements intercepting the boundary of the tract must be shown. The one street in EAE, Pilot Drive, is not shown on the recorded plat. b) 17.24.060 J - The location, width and type (i.e., route, lane, or path) of all bicycle and pedestrian facilities, including access corridors, must be shown. The access corridor to the runway is not shown. c) 17.24.070 E(8) - Requires a map showing the location of existing roads in relation to the dedicated right-of-way. The recorded plat does not show Pilot Drive, the road, or open space in the right-of-way. d) 17.24.100 B - The county failed to verify the recorded plat is sufficiently correct. Common area was not correctly tabulated on the recorded plat. The road (taxiway) to the runway was not shown. e) 17.24.105 B - The Planning Director did not determine that all conditions of approval have been satisfied. The route, corridor, road, or taxiway to the runway was not shown. f) 17.24.110 A - The Planning Director and Road Department shall determine, whether or not the plat conforms with the approved tentative plan and DCC Title 17. The road (taxiway) to the runway was not shown. There could be no compliance with the tentative plan without road access to the runway. --Senior Transportation Planner Peter Russell has made contradictory statements regarding the true and correct amount of Common Area (or open space) currently existing in the EAE development. In his August 4, 2016 memorandum to EAE President Bryan Paxson he asserts the plat correctly depicts common area but in his May 2, 2018 letter to Hearings Officer Gregory Frank he asserts a screen shot from DIAL correctly shows common area which he acknowledges is also known as open space. The two representations of common area are not consistent. The Appellant will prove the DIAL screen shot more accurately reflects common area (or open space) and it is significantly more than that shown and tabulated on the recorded plat. The recorded plat does not show or tabulate open space. Pursuant to DCC 17.24.170 and ORS 92.170, the appellant wilt cause the errors on the recorded plat to be corrected. Once corrected, the amended plat will show and tabulate all common area and / or open space and /or natural area in EAE which will make certain EAE is, and always has been, in complete compliance with the intent of the 65% open space rule and all other provisions of the approved tentative plan pursuant to DCC 17.24.110 A and the "sufficient" standard per DCC 17.24.100 B. Respectfully, Mike Morgan Appellant See attached additional statement to the "Board" Additional Statement to Deschutes County Board of Commissioners The Deschutes County Board of Commissioners should consider the following factors in deciding whether my request for a de novo review should be granted: DCC 22.32.027 B2 c: My rights to happiness (flying my two airplanes recreationally), and the value of my two properties in EAE, will be significantly prejudiced without a de novo review because the applicant failed to present evidence that the county made significant mistakes in approving a final plat in 1989 that had significant errors per DCC Chapter 17.24 DCC 22.32.027 B2 d: There are significant policy issues at play in this appeal. Is common area the same as open space or natural area? What is the meaning of development as it applies to the 65% rule? How are these potentially different types of space determined and measured? What tolerance is applied to the 65% open space rule? Is an absolute minimum of 64.8% open space reasonably considered meeting that standard? What is the significance of, or meaning of, the word "sufficient" in DCC 17.24.100 B. DCC 22.32,027 3: The Board should decide on its own to hear this timely appeal de novo. Mike Morgan c plot plan in the approval li re 1..z.,° (5 ,..$: IP ?: ''':•-= '•::, ;--' ,t... t.: .-,, ,, :;: •,..; ,• :,ie` • '-.., •-• r; •,,,,,,i, .,,, :::, • 47 ,,„... 6 <,0 af -..) La' 1 0 E-,,, .,,'• ::, P F,,.. ,.. .6 --, ' ,,„ -.2 co 4.1 February 2, 2018 To: Deschutes County Representative Re: Historic taxiway from Eagle Air Estates to the Sisters Airport Runway. My name is Michael L. Morgan and I own two lots in Eagle Air Estates (EAE); lot 9 with my wife since 1995 and lot 11 since 2003. Eagle Air Estates was developed by Vernon and Sandy Goodsell in the early 1990's to be a 12 lot residential airpark. The attached two documents are confirmation of this fact. The first contains an excerpt from the Deschutes County Approved Application Dated June 20, 1990. The second is a real estate sales flyer by Sandy Goodsell from 2003. The county has, over the last 26 years, approved aircraft hangers for all twelve residential lots in EAE, It's axiomatic that aircraft hangers would be unnecessary if there was not aircraft access to a runway. I personally own two aircraft. Both are modern aircraft requiring a paved runway and paved taxiway. The EAE paved taxiway was in place when I bought my first lot in 1995. Some people have suggested a simple gravel or grass taxiway would be sufficient. This would be true if EAE was developed, approved, and marketed to be a residential airpark for vintage and bush aircraft. Older aircraft and bush planes have large tires unencumbered by tight aerodynamic wheel pants or retractable landing gear with gear doors. My two planes would be effectively trapped in my hanger if the current paved taxiway was replaced with a gravel or grass surface. I often walk the EAE road and taxiway before 1 taxi out to the runway to insure there are no loose rocks or gravel that could damage my prop or get trapped in my wheel pants / gear doors. 1 no longer use my aircraft for business but some in EAE do. A gravel or grass taxiway would be especially problematic for these people in winter when they must leave on time for business purposes. Gravel and grass surfaces cannot be effectively plowed sufficient to clear snow and ice without damaging the underlying surface. These people would be trapped until repairs could be made. In this climate anything other than a paved surface is not suitable for use by modern aircraft. Deschutes County is complicit in creating the problem now being addressed as a result of a complaint by a party associated with the Airport that is upset because the unlawful runway extension on EAE common property was removed. Why change the taxiway when the real problem was an incomplete plat map that was approved? This was an administrative error by the applicant and county that is easy to correct. The 65% rule must have a tolerance and the size of the paved historic taxiway is insignificant and makes compliance to this rule within a reasonable tolerance of less than 0,1%. The county should not be manipulated by parties to a local dispute. If the EAE historic taxiway is removed or changed to a surface incompatible with modern aircraft I will seek legal recourse for the financial damage that I will suffer as a result. The devaluation of my two EAE properties will be significant and I will lose the use of my aircraft that I will be forced to sell under duress. Your attention to this mat -ter is appreciated mei L. Morgan Stove R. Marsan 15t- i Pilot Drive Sisters, 0 = ,tort 97759 February 6, 2018 To Whorn It May Concern: In response to Deschutes County Code Violation 247 -16 -000375 -CE, at June 20, 2017 stating a complaint related to taxiway and paving violating open opave requirements "shall maintain a minimum of 65% of the land in gpen space", Please consider the following: 1) Per USES project 6180108 an estimated 200 ft long, 123 ft wide portion of historical taxiway and 40 ft portion of runway asphalt pavement pre -dales county plat approval. To avoid apportioning culpability and for the record, then only an estimated 153 ft long, by 12.5 ft wide asphalt joggle after plat approval is subject to the violation ((1537'12.5) '1913 ft42 0.044 acres; (39.25-0.044 acres/60.37) acres 0.649 or 64.9%, 2) To how many decimal points is the code enforceable? 3) Per August 4th, 2016 Memoradum from P. Russell to 8. Paxson, The County's DIAL ; system incorrectly displays the private roads within E le Air Estates as common prea. but the approved rnsitenals at Plat No, 701 label the common area, which does not include the roads or easement. 4) EAE common area and open area terrns are coincidental and have been applied Interchangeably, However, It open spaces on either side of private road are considered per DIAL then EAE is not In violation. 5) Removal of taxiway asphalt and instead using a gravel or grass-crete system will Increase the probability of foreign obit& damage (F00). For example my aircraft propeller comes within 9.5° from the ground. 6) The county approved application states lot owners could taxi their personal planes out onto the private road (1C) and then to the airstrip". We moved to Deschutes County particularly E le Air Estates (EAE) for direct aoceas to Sisters Eagle Airport and because it was an established 'airpark subdivisioncommunity dedicated to a common Interest in recreational flying (ref. C11-69-68/TP-89-701 approved 8/1/89). My property was the first to construct a hangar at EAE completed 03/29t1991. All twetve properties have subsequently built hangars, the last permit appiication being screened and approved by The Oregon Department of Aviation and Deschutes County in 2016. 1 have dedicated my life to the promotion of aviation and have shared the joy of aviation with everyone around me. Finding a viable aviation community has been a dream come true. Now I arn 55 years, yet I still remember me as the hardworking 16 yr old who dream while washing airplanes for tying time. Please consider, without a properly paved taxiway cannecting to the runway, it incrementally undermines peace, enjoyment and the dreams that brought me here! Sinoerely, Steve R. Marsan Exhibit 13 1 of 1 Mike Mor 0. an Page 1 of 1 From: "Mike Morgan" <morgan@bendcable_com> Date: Thursday, /o: "Peter Russell" <reunRus*, Cc: "Todd New"<newmnmR_62@abnet>;^Sbeve Marsan" nmviatocoom"Dean Hodges" <doan@deonhodgaszum> Attach: Runway access etter.pdf Subject: File 247 -16 -000138 -DR Peter, Im just catching up after being very sick and in the hospital for 8 days around the first of the year. 1 almost died and was on 24/7 intravenous antibiotics for 8 weeks. l'm reviewing the onhine document fi|eand note that some ofthe written testimony was received well past the 10 day tirne limit. Why is this material included in the file when is was received beyond the stated cut off time? Will this material stilt be considered by the hearing officer? If yes, do others have the opportunity and right to respond? Is there a public hearing involved with this process? If yes, is it scheduled? 1 find it very odd that the county would allow itself to be manipulated into a Iocal dispute involving parties that have been adverse for a very long time. The historic taxiway, if taken out, would effect the 65%rule bvless than O.1%. This is within the tolerance of the and survey upon which the percentage of open space is calcutated. This appears to be an extreme example of nit picking by a party that has an agenda far beyond the 65% rule. That agenda is to punish EAE members for not supporting the runway extension; and thus, not initiating a land use action to allow it to stay. There are 18 properties adjacent to the Sisters Airport that have historically had access and use of the Sisters Airport runway clating back many years. The Ssters Airport applications for three Connect Oregon grants listed the aircraft stored and flown from these properties in the count of aircraft based at the Sisters Airport. These access rights were memorialized in a Letter of Understanding in February of 2016. In December of 2017 these individual access agreements were unilaterally terminated by the airport with the threat to sue for trespass any adjacent property owner who continues to use the runway. Attached is an unsigned example of ths document. Al) EAE members have been advised by legal counsel to continue tendering payment as required by these documents Given such tender the airport has no legal basis to terminate our access rights. The fight about the 65% rule is to accomplish what the airport owners can't accomplish by their attempt to terminate these agreements; i.e., deny all EAE members the right and ability to access and use of the Sisters Airport Runway. Respectfully, Mike Morgan 8/4/2018 LETTER OF UNDERSTANDING DATED JANUARY 30, 2016 BY AND BETWEEN Michael and Janet Morgan 15925 Pilot Drive Sisters Runway, Inc. Sisters. AND An Oregon Non -Profit Owners Eagle Air Estates Lot 9 Corporation the ("Adjacent Property Owner") Re: Access and use of Sisters Eagle Airport runway by Adjacent Property Owner The runway of the Sisters Eagle Airport is owned and operated by Sisters Runway, Inc; an Oregon Non -Profit Corporation. The purpose of this letter of understanding is to clarify and memorialize the existing verbal agreement between the parties and supersedes and replaces any other written or verbal agreements. This letter of understanding constitutes an agreement that is binding on the Adjacent Property Owner, their successors and assigns; and Sisters Runway, Inc. and its successors and assigns. Sisters Runway, Inc. warrants that Adjacent Property Owner has a legal right for occupant (or assigned m lieu of occupant) aircraft or visiting aircraft access and use of the Sisters Airport Runway from Adjacent Property Owner's privately maintained taxiway. Such access and use of the Sisters Eagle Airport Runway is subject to the following terms and conditions. To maintain legal access for Adjacent Property Owner there must be paid to Sisters Runway, Inc. a monthly access fee of $50 per month regardless of whether or not there is any aircraft operating from Adjacent Property Owner. This monthly fee will increase annually by $1.00 per month starting January 1, 2017 and again on January 1 every year thereafter. Legal access will terminate and this letter of understanding is void if this fee is not paid for three consecutive months or if any delinquency is not resolved within 10 days of receipt of any demand letter from Sisters Runway, Inc. Rental provision: if Adjacent Property Owner rents hangar or tie down space to additional operating aircraft beyond the occupant allocation in the preceding paragraph, there will be an additional monthly access fee for each payable to Sisters Runway Inc. under the terms and conditions stated above. All aircraft operating from Adjacent Property Owner must comply with all rules and regulations universally applicable to all other users of Sisters Eagle Airport. This letter of understanding constitutes the entire agreement between the Adjacent Property Owner and Sisters Runway, Inc. Adjacent Property Owner Adjacent Property Owner Benny Benson for Sisters Runway, Inc. May 28, 2018 Delivered by Email To: Gregory Frank Hearings Officer From: Mike Morgan EAE Lot 9 Re: Comments to File No. 247 -18 -000138 -DR Dear Mr. Frank: I could not attend the May 22, 2018 hearing so please give thoughtful consideration to my comments herein. I make these comments after reviewing the entire file as of this date. I live in my home on EAE lot 9 which is immediately adjacent to the EAE taxiway at issue. I'm also a licensed pilot since 1971 with over 2600 hours of flight time to small general aviation airports. 1 own two aircraft that I've hangared at my EAE home since 2001 that I use for recreation and personal travel. Regarding the Bishop letter dated May 22, 20111. The "Open Space" definition at DCC 18.04.030 does NOT require statements "A" through "I" be considered in order to determine what is, or is not, open space. The "and" at the end of item "H" serves only to indicate there is only one more statement of criteria in the list. For the Bishop interpretation to be valid, the sentence preceding the list would have to have words added as follows in bold: "...and any land area that would, if preserved and continued in its present use, and meets all of the following listed criteria:" DCC 18.04.030 simply does not say what the Bishop's want it to say. Oregon law does not allow adding words to writings to get an interpretation different than was originally intended; ORS 42.230. Regarding the letter from Elizabeth Dickson dated March 2, 2018. It's difficult to get past the hyperbole in this letter but I'll try. Paragraphs 1 and 2 make bold statements without any rationale, or basis, or any offer of proof and are not relevant to the issue currently before you_ Paragraph 3a: Attached (Ex. A) is my fully executed Letter of Understanding documenting my legal right to access the Sisters airport runway. Eleven of the twelve lots in EAE have a legally executed "Letter" exactly like this one. This document does not need to be recorded to be binding on the parties to the "Letter". Given the existence of these "Letters" evidencing a legal right to access the airport runway from the EAE "privately maintained taxiway", it is disingenuous for Ms. Dickson to argue, on behalf of the airport, that EAE is trying to "...legitimize this illegal and unapproved access". It is unfortunate that the county would allow itself to be manipulated into a local dispute involving parties that have been adverse for a long time. The EAE historic taxiway, if taken out, would affect the 65% rule by less than 0.1%. This is within the tolerance of the land survey upon which the percentage of open space is calculated. This is an extreme example of retaliation, by regulatory complaint, by a party with an agenda far beyond the 65% rule or whether or not a small amount of asphalt can be applied to open space. That agenda is to punish EAE members for not supporting the runway extension (sometimes called runway end safety area or overrun) constructed on EAE common property without permission and not initiating a land use action to allow it to stay. The construction of the unapproved runway extension initiated an investigation by the Oregon DOJ resulting in a breach of contract claim in Marion County seeking the airport's return of $733K in state grant funds. There are 18 properties adjacent to the Sisters airport that have historically had access and use of the airport runway dating back many years. The airport's applications for three Connect Oregon grants listed the aircraft stored and flown from these properties in the count of aircraft based at the Sisters airport. These access rights were memorialized in the Letter of Understanding of February 2016 as indicated above. In December of 2017 the airport owners tried to unilaterally terminate these individual access agreements with the threat to sue for trespass any adjacent property owner who continues to use the airport runway. See Termination (Ex. B). EAE members have been advised by EAE legal counsel that the Letter of Understanding is a contract creating an easement and to continue making payments as required by these documents. Given such tender the airport has no legal basis to terminate EAE member access rights. The fight about the 65% rule and a little asphalt is to accomplish what the airport owners can not accomplish by their attempt to terminate these agreements; i.e., deny EAE members the legally documented and enforceable right to access the Sisters airport runway from the privately maintained EAE taxiway that's been in the same location and in continuous use for three decades. Paragraph 4 is simply not true in its entirety. There is no safety issue regarding the EAE taxiway. It enters at a right angle at the end of the runway just like the vast majority of general aviation taxiways all over the world. It's nonsense to suggest moving EAE's access to the mid -point of the runway length. This would require all aircraft entering the runway at that point to taxi on the runway to either end for take -off. This is very dangerous because the taxiing aircraft can's see what's coming in behind them and landing aircraft are focused on their chosen spot to land and their instruments; they are generally not looking the length of the runway for other aircraft entering the runway mid -field. The airport in 2015 spent a lot of state grant money to put a parallel taxiway on the SE side of the runway, in part, to eliminate two mid -runway access points on that side of the runway. This new taxiway enters the runway at a right angle directly opposite the EAE taxiway. The grant application said it was a necessary safety improvement. If EAE's taxiway is unsafe, as alleged by the airport, then so is the airport's new taxiway that enters at the same end of the runway in exactly the same way. There is no basis to the argument the EAE taxiway causes a flooding risk. Its lowest point, where the seasonal Trout Creek flows for a few days every 3 or 4 years, is at the same grade as the packed soil on either side; there is no dam or restriction formed by the EAE taxiway. There is a berm between the runway and the EAE SE property line, parallel to the runway, to keep Trout Creek from flooding the runway mid -field and preventing some of the water from flowing to the other side. In 18 years the highest the water has ever been at the EAE taxiway is 4-5 inches above the low point about 6 feet from where the taxiway intersects the end of the runway. The creek flows easily across the asphalt taxiway and disperses on the other side into the Indian Ford Creek meadow which is a known wetland. There have always been geese in the area of the Sisters airport because it borders this meadow and it's flooded by Indian Ford Creek most of the time in winter and spring. This meadow is a a popular nesting and feeding area for waterfowl. There is very little traffic at the Sisters airport during the months the meadow is flooded. Thank you for your thoughtful consideration of my comments. Respectfully, Mike Morgan (54] ) 549-8898 Attached Ex. A & B DATE: TO: FROM: May 2, 2018 Gregory l'rank, Hearings Officer Community Development Department MEMORANDUM 4iss:ell Senior Transportation Planner RE: Major topics for File 247 -18 -000138 -DR HEARING: May 22, 2018 PO Box 6005, Bend, OR 07708-6005 117 NW Lafayette Avenue, Bend, OR 97703 TEL (541) 388-6575 Due to a code enforcement complaint, Eagle Air Estates Homeowners Association (EAE HOA) filed a declaratory ruling to determine if a paved taxiway violates the open space requirements in the approval of the EAE subdivision under CU-89-68/TP-89-701, The subject property is identified on the County Assessor Tax Map as 14-10-330, Tax Lot 99, Staff has identified several threshold questions for the hearings officer's consideration based on the submitted application materials, public comments, and staffs review of the applicable zoning codes. Staff presents these in no particular order of priority. The taxiway in question leads from EAE to the northern end of the Sisters Eagle Airport, Runway 20. The roughly 325 -feet -long taxiway has been in existence and use for approximately 30 years. Figures 1 and 2 depict the paved taxiway and the common area. Is a paved taxiway allowed in the Rural Residential (RR -10) zone? CU-89-68/TP-89-701 was reviewed under PL -1S and its Section 1.030 and 8.050 and the then -current Rural Residential (RR -10) zone, which was Section 4.120. Conditional uses were listed at Section 4.120(3) with (G) allowing airstrips, but with qualifiers in terms of usage. (While the code specifies airstrips only, for purposes of review staff assumed the language for airstrips would apply to taxiways as well. PL 15 Section 1.030 defined landing strips at 1.030(60) but provided no definition for taxiways. Oregon Revised Statue (ORS 836, Airport and Landing Fields), does not define taxiway; Oregon Administrative Rule (OAR) 738-005-0010 defines taxilanes and taxiways, but these definitions cite circulation within an airport,)1 2 1 Section 1.030(60) Landing Strip. An area used for landing and taking off of aircraft for the personal use of the property owner and his guests, or aircraft employed in agricultural operations. 2 (126) "Taxilane" means the portion of the airport apron area, or any other area used for access between taxiways and aircraft parking or storage areas. (127) "Taxiway" means a defined path established for the taxiing of aircraft from one part of the airport to another. Figure 1. Paved twiwoyfrom EAE subdivision to Sisters Airport (avatar, at north end has since been removed) 4.;. Figure 2. Eagle Air Estates Common Area, aka Open Spat' e, sham.; n M yellow 247 -18 -000138 -DR (Eagle Air Estates taxiway) 6, Personal -use land strip for airplanes and helicopter pads, including associated hangar, maintenance and service facilities. A personal use landing strip as used in this section means an airstrip restricted except for aircraft emergencies to use by the owner and, on an infrequent and occasional basis, by his invited guests, and by commercial aviation activities in connection with agricultural or forestry operations. No aircraft may be based on a personal -use landing strip other than those owned or controlled by the owner of the airstrip. Exceptions to the activities permitted under this definition may be granted through waiver action by the Aeronautics Division in specific instances. A personal -use landing strip lawfully existing as of Sept. 1, 1975 shall continue to be permitted subject to any applicable regulations of the Aeronautics Division. (Emphasis added.) Sisters Eagle Airport became a public airport on July 1, 1967, owned by the State of Oregon. Later the airport was sold to Brooks Resources, a private company, on March 22, 1978. The Sisters Eagle Airport has been sold several times since, but has remained in private hands, but open to the public. The Oregon Department of Aviation, the former Aeronautics Division, classifies Sisters Eagle Airport as a Category IV Local General Aviation Airport open for public use and privately owned. Staff looks to the hearings officer to determine 1) whether a paved taxiway, which can only be used by EAE residents or their guests, complies with the definition of a personal -use landing strip and 2) if the taxiway then connects to a public use airport does the taxiway still comply with the personal -use requirement. Is a paved taxiway allowed in the Open Space area? Complementing the RR -10 zoning question is that cluster developments are allowed, provided the density bonus includes at least 65% of the land be held in open space. CU-89-68/TP-89-701 was approved as a cluster development with a stipulation that 65% of the area be open space. (Based on the materials from the 1989 land use decision, the terms open space and common area were used synonymously.) The approved plat for ERE is 60.37 acres plat and includes the foliowing annotations: • Cpmmon Area • Road right of way e 15' access easement a Lots 39.25 acres 3.40 acres 0.60 acres 17.12 acres Eagle Air Estates is a cluster subdivision, which means the land received a density bonus to allow for additional residences, but dedicated open space is required to offset the increased number of homes. On page 4 of the findings and decision for CU-89-68/TP-89-701, the decision states: "4. Cluster and planned developments shall maintain a minimum of 65% of the land in open space, timber, or agricultural uses compatible with the surrounding area and the development area. The open space of the development may be platted as a separate parcel or in common ownership of some or all of the clustered unit; however, the , n space shall not be su' to development unless the whole development is b ht inside an u , • n growth boundary..." (Emphases added) The code defines open space as the following; 3 247 -18 -000138 -DR (Eagle Mr Estates taxiway) Open Space. Lands used for agricultural or forest uses, and any land area that would, If preserved and continued in its present use, conserve and enhance natural or scenic resources; protect air, streams or water supply; promote conservation of soils, wetlands, beaches or marshes; conserve landscaped areas such as public or private golf courses, that reduce pollution and enhance the value of adjoining or neighboring property; enhance the value to the public of adjoining or neighboring parks, forests, wildlife preserves, nature reservations or other open space; enhance recreation opportunities; preserve historic, geological and archeological sites; promote orderly urban development; and minimize conflicts between farm and nonfarm uses. (Emphases added.) Staff looks to the hearing officer to determine whether 1) whether a paved taxiway is a recreational use or a transportation facility; 2) if a paved taxiway equals development; and 3) if a paved taxiway used for general aviation purposes for the residents of EAE constitutes an enhancement of recreation opportunities. Does a paved taxiway cause EAE to violate its 65% open space requirement? The location of the runway is not shown on the EAE approved plat. The runway crosses an area labeled common area. Staff notes the taxiway's size does not appear in the plats acreage summary in the above summary. The 15' access easement pertains to a utility corridor at the north edge of EAE and the road right of way is for Pilot Drive. Staff looks to the hearings officer to determine if the paved taxiway causes EAE to violate the 65% open space requirement, presuming the hearings officer has already determined the paved taxiway is allowed in open space under the recreation clause. If there is no legal access to the Sisters Eagle A is the paved area stilt a As best as staff can determine the developer never recorded an easement between the EAE cluster subdivision and Sisters Eagle Airport, In materials submitted by the airport's attorney on March 2, 2018, she states there is no legal access from EAE to the airport. The taxiway does not appear on the approved plat, but staff can find no requirement in County code that a taxiway is required to be platted. As an analog, a road is required to be platted, but the driveway connecting to the road is not; a taxiway is essentially a driveway to an airport's runway. Staff notes the application materials indicate the taxiway has been in use for three decades and thus an easement may have been established by its open use and that the airport's various owners never prohibited its use. 4 247 -1E -000138 -DR (Eagle Air Estates taxiway) 5 a t a Iii k. ..., , th 2 z 0 ,, 44 t rzl 7' 4' 4 •,-,:, , -. •-z, ,.., .' 4 . ., : a t; w 5 ; % C'', 1I ,,/.'/,. vy ZS- rq d14/1' ' < •••:,,, 1 .. i 44 I tea -1 riec ix* 3,1 $130.30' 34,444.34 C.1 tAi S' ar 416'10-E - /Y5S, SO' , S 09 V' sr e - cr-wx. • war , tIt'120.4 tOtCri Avy e scul 4 , yue NO, APPLICANT; RE0n6"-rx PIODINGS A.ND DNMION " CU-RD-W7B-01 VaKEI and 5and-y Goodli lth Xent, WA 9DD42 An applioatioo kor a Condltionel U.sa Permi;, on. a Cluer De',,el.wNent ga-ld an applicatIon fe::x. a Type Dee .f.nr the 12 lot. Oualopmont in en. RR -10 Zone, Pt -AMINO STMT PZPAB5SNTATMt gmA ,ShipXian BURD2N 017 MOMTh plj.ant r.wetco:stab-11-0 thast the Condi.- tional pee mts. th'f r*,,virEmmtz ettionn 1,0::1 and D.050 of Pt -I5 tbn Nueoutes County alihg Ord,Ince, 4.md OLdirvenoe Disohutes Cu:Irrty vb-t11v.ion Oreliaaglo 1< KNpING...% The g.obj looted dIreotly TzortN of tbn 'Bi.eteY:a Airport. g,nd nt of Camp P0/1 Road iD SiNters, aod ie fl)xthez.- dencribod ;kg,' a'ax Lott N2: M)O, awl 704, in Townnhip 14 $outh, Range ID gecti.on 2, .20.11.ki, Tte ea4hjnot. ,$7>noc,. RR -10: 1,Uirul. Regiduntli.: And han an. 81:ct OftwIbiete.0 .dez-Watd tb8 Covav ComprohoD01; RBARING AIM EXRINITS hecring wae 1)eae Zuly t39.6 ccrztAnued to Wiluat le 3M39( at thro mwohut Cl›,unty AdIrdnAtratAo. The A)ilowing exhfl'elit5- b:wk dp reoord thi nuttw: A, Applicet)-,pa B . Rmliminary Rian C, R9.wis8d an N, Btate of OregOn Aek-onatiLiez latttr datd 6, 19M Stat ot Onegon Aeron;Autien. talyWfl lettur 4ated 3u1y 14, I9r • Publi ReftlOranall da.ted 20: I:989; G. ampeg,,' Good0a letter' iUtod July 14, 19D9 N, dhs4nn0 ipttor datnd ,Tungl 7, 1$•M, ntJ)INGB ANN NON: file No.r. CO-69-CS/TP-69-761 Exhibit 1 1 of 12 I. Staff Report; and J Planning Department Memorandum dated August 1, 1969. FINnINCS OF FACT 1, The subject area is approximately EC acres in elle, and consists of our fA) tax lots. The topography is generally level and has a vegetative covering of bunch grasses, bitterbrush, juniper and pine tress. The site is undeveloped and has ,an old mining pit located in the sOuthwestern portion of the Parcel, Camp Polk Road abuts the pareel on the west, and the sisters :Barclay) Airstrip rune through the eastern portion of the paroel, 2. Land use in the surrounding area consist of Indian Ford Mead<*4s: subdivis.iofl to the nOrth and Yest, TraPpeT Pont Subdivision to the west, Sisters.(Barclay) Airstrlp to the south and east and a mix of rukal lots to the east The primary uses Oucurring in the area are rural residential_ with some farm uses on small one acre) to medioum 00 acres) sized parcels. The applicant han,propostida a 12 lot Cluster UevelOpMeht calic0 Eagle Air Estates- Access to the 1.>ts would be oft of a private road loading from Camp P0 Lk Road. The private -road, as proposed, wom[d also connect to the northern end.of the .isters Airstrip. The 12 lot development is -e.signed to he an airP4rk GUbTlivision, wbere lot owners could taxi their personal planes out onto the private road and then to the airstrip. 4, The preliminary plan submitted with the subdivision appIicatinn shews all the lots west of the strip with ono lot near tho end in an existing meadow area. The plan -01dicates 22 parcels of aphroximo/nly ,aoren in size, 2. TreesMittals from various state and local public: agencies had the following comments: 4. The Oregon tate Department of nerohautics Division sent a large packet of base. informatlon Ln airport compatibility, model rpmt overlay 'aone, However, th-o' did not novo 5peeifie comments on the proposed devejopment at this time. The County Public Works Department had several comments regarding the proposed development. Ono key issueof concern is the location .of the proposed access road. into the development, -2- FINDINGS AND DRCISION, File Nos. CU-89-.66/TP-59-701 Exhibit 1 2 of 12 C. The County Environtental Health DiviSion ateted that naptic M,te evaluatiom, will be :required for ase:h parcel, D, Tbc Sister$ Pirs 1)epartment had 4 cp.testion se to what provisions ware being made for fire flows. t the developm.aht, At 01.6 heariag on augutt 1989, the applicont batit:Loa nr,3id plan Aich zteldrw,;,s8d matv a the con<furtlii that havo l'?a addrer,;sod by the Plaonimp nPpatIlt and othPr, Ttw the. 11J,Ai-6)10 DeprtwinL reix';mmndwl approval ha.d upon C..(A4CLUMVA1Y rsanInGs A, Conformanoe with the Peachutea County COmprnheazi.ve 2(wricklltural Goal :& Policiee "GOP,J. To prew.(va aciH,Q.ultuvel 0 Deachve.* County kor the pr000ti.on o farm :and foreetry products, aa well aer the notA for Open apace," The' aolIe ciaaai.fication :.on the pat'cel in eonaidarsd aa marginal: tam land:. Howevox, there ia a. NignqitI4nt amoant of trees cr:jer a majorIty a the parc'el whicth ,g4:;0A l'uud ;e property more toWarda fOravt ,menag0Ment with a. >muall area lo the nortbeasteln area which could be 'ot.1157:ad for pasture, The propoaal call:a foe. a clustering of 1 homeeitee on 3O of tho 1.n.nd with sproximatkqly 70,ft of, the land eet. aoic16' lor open Vhia olett,ay raoeto tha intent and purpose of thie goal. There WTO no polic3.ea in the agricult;Ital sectibe of the Compreheneive PI:ari( where wea-:e applicable, 2, RIRPORT - The goal:'; and poles in the Comprehensive Pla are specifically applicable to thin -requet, RURAL DrVELOPMBNT GOALS POLXCIn - The following goals and policies are applicable Lp this propoaal- GOALS;, TO preserve a;)d :(,:ilhance the open apace.se chara,:tar, ncenic vaj.ues and naCueal. rc,,,v..)Lwrg of the County, PINDINQS AND DHCMION, Pile Noe, CU-U9-WitTP-119-701, Exhibitl 3 of 12 4, b, To guide the location .and desgn of r0.7al developlp.at 80 an to minlmizo the public coate of f..3.431 3 ot7v,k0e,t3 0d chne-ces:iary expanslon of service boiAnderien, and to- proaerve and enchance the safv ntid viability of rural land uses. c. t' provIde for the -possible loco Lerfli expansion of cittan axeaswiig protocting the distinction bet3nnrban (u.rbaniing) lands and rural lande. DOLICik:St. flocauso 51% of 1.ha rasil County popwlation. will. live Inside an .31 aLea, with only 3,03'.1 hew rural lots riNuire6, Au light of ti.Au J.7,377 undeveloped rwral, tKacls sad. lafe aa well aa the enelVY, environmult(3l and. public aetvica all fwtn.u:s ruta.l. develepmeot 1.3 be atrinnantly roviewod for public nvod )0f.047e. ivpx.ovaa, (3< a ouldeline for-. i'oview, it stud3f. of existInlots 51th of the nToponod nevelon* ... .1f.pvt-A Chose lotn _have. bet hooa stin,t conatretad flu! fW:v.AlOr 1.11 . . , . . .. . .. . ... ..... .... jlie1JA additional. 10 Tfils a3: oa8 wtera suo in twIc$fAoa (other polAcias considering enSfrgy, public faoilltiaa, safety and other .devel.owent. aopects afiall also be considered) while xastrictin future division fh Wroen Mafty ondavioped lots ear.sady sidst 1' '.3,' or pl.Upd c3e.m.lopment offers affolifisaat savinga to the developRn: beeause ..radsd. -rb40 wadi, ntilfty and cowetuatios ooat, tio01-,s to t3..rve cluSte( de0e).0pMe3:t33 :.re also usually' Thi.tore, toencourag dilelopslowl and plaroled developmeala, rather than naxeoll%ation, ...... ... 'nonnify,..pormitod ifi th ,71r4,21 planned (:1 3.333 3' 33d platibe0 0.vpielo3)m4i333e shall main;:ain a minimma ',65 of the load. 1n open 'space, .timbor or agriciat,url -ith; the Stitt -building arne and. the 40Vp:topAc-nt Th open npace Of tbe devnlopmoni tizay be 1:;latted waparstopar;:ol or in coxtda ownership of 600e.? 1'' a11 of ale l.A).11$tOl'eel 001t; 3 4-, the open aros shall not f)e• 33'. 3. to •le!vopmeet melees riovgjoomont brooght dnside ('(1 Urban groth boundary. Also service onnhhofions shall be the 33" '3310)1:1 1.0r2t37 nec,';essary nnd undergx'ound 4hern foanible. Roakjs shall meet County -4- RIND113GS P,ND DPC1S1:O1'33 File Non, Cli-B9-0/T14-89-701 Exhibitl 4 of 12 atandards, be dedlcated to tho public and may accepted In the County Road ',3yotem by the County tor mointeenna. C, WALhth 0Aq of ... pXOWt„0 m!ae tho ptamwd Woveli:VMunt conuept pn'oolt. to on. -.i411;,.reasq ?Ai .1.):MrThe, tor ,i.a..,.0ww.18 NuAtiple han Aartuultut: or 'Aural ..... • :wne$ '4Qnq wou1.4 a Oe.unAty oi ono unit acres, The applicanCf,, propoval specifically meoLe the goal ae etated above, it oJo- 11, 4 an6 8. Itowover, the applicant (iiti cot oubit ii otedy of t:..ha evisting loto within a Ch.eoo Panxin.w.i balievoo that the propozal t5 unique in comparinioh to the other reoidential lots in the area, n. oonf!ormaNca wU.11 Saci%ien =3,0SD 06) of k„,-15, 1, A. The applicant' ropooal ‘l., unique anfl would certainly provide 4z opportunity for dividueln to 1.i in a .rural oettiw an0 tliiyoe tho;;.r private planer All in onn locatIon- (7,) tnvironmental, occial and. putelic Eacilihea itpaCts from the proponol are dftficult tO mnasure, the will: 1:ke adOwJ troaio to Camp Polk: Itc'ed and .to thn 8intnrz Airetrip, thin could creato more trips and out of. the a>xntr-4) whl.oh. will appoar ti have a elight noinn impact en. the Areac Th 0 effect of the dovelopment of the rural character of the area& nhouId not ba detrimental, Tho proposal appearo to fit in well with tha surrounding land uses and shou:id not adveroely aftect the avea, Tho offact ot the agricultural and forestry in the reawill iiLocAan minimal. Tb additional rezidencee will have an offoct on any wlidlifo that ronifie on tho peroal or mi,,iKat.o T.:.brough. Nowever4 tho cloetering of the. propoeed hoMenitee i(3U.1d re6oce the ;:atehtial impadte, -S-• FXNDINCS AND nex:II.oN, Pile C13-g9-66/TP-n9-701 ExhqM. t 5 of12 (1) TaeHliroposal 'app-aars to limit the ,VelopMsnt, of the paheel to 3Mi, which woulO cOnfOrm LO this mriteria. goweverf thb applicant's Serveyoriangineer sIiall verify thls i writing to the PIanning The open Spaco areab a -re prOpOsad to remain natural and not put toward any development C, C3onfomancs oith Ordi:nance • The applicant: will noed to submit a revised drawing to tlie Public WOrks ilk,epAr.ttent's Planning Divisrion addreasing the clear vision leeles at the reviasd eodoes location. 2. non ho the uniqueness of this subdivon proposal, ths gearings Oi!ficr finds that building permits can bS issued prior tm complete, utility and road /improvements in the subdiviaion, WM UPON the foregoing Findings of Factee the goarings Officnr hersbY APPROVES tho rt EOK a Conditional Use Permit and Typo Oils SubdIvision for the 12 lot development subject to the folloRing conditicas: 1.Tha appio.ant ahali meet any rsgeirements othe State &broosotica, Department, 2. The applicant shall meet any requirements of the Federal Aviation Administration, 3. The applicant plans shall neeh the Safe 6igtt Dotouce requirements of t Public Works Department. The appliK:ent rpmove any vegetation required by PublIo Works to mest thess reqUiramente, This plan shall mash all other requirements of the Cluster Sovelopment Standard:3 and shall be aPProved by the connty planning Dion prior to the submittal of tibe final myler, 4, The Cnel plat shall b preparod by a licenad servoyor In accordance with Ordinance a1-043, the besotutee County Subdivision/Partition Ordinanos. Th p Public right-of-way and all morusrs are to be located and monomented, 6 . This approval IS for twelve (aVi parcols, Ta1:os for the: nUbjeet subdivision ahali be pai4. aCCOrdidI t 'the requirarrnts nf OF,a, 92,095 prior to final approval. FINDINGi3 PAD DMISTOW, Pilo Nos. CU-69-66/TP-Ii9-701, Exhibit 6 O12 7. The applicant ;ll dedcats a fee in lieu of :property for per*n development in accordance with Geotion 7.(MO c Ordlnanve 81-00. 8, Any proposed oovenaote and reetrictioa ehall be reviewed by the Planning Division wflor the,tt 'recording in the Covnty Clerk's_ Lltfice. 9, The applicant shall obtaio foavihility approva1 On each peroel in the aubdivision from the Oeschntas EnVironmental Oealth 16„ A etaLement of water rights form shell he completed and recorded with the iUnel. mylarf eignatore of the appropriate irrigation district representative, 11, The applioaht ehell meat all regoiremente of the OisterS Fira Dapzit:Uaiont 1'2, The owner of the hamlon ,71'1.- shall thin any dead ox dying trees, maintain and protect the forested areas frem wildfire. aftal plat. sheik indicate Oe exact r.ilzo of soah parcel, 14, The applicant. ahail submit lettere 4om the applicable utYycodtpaniee .on their vvailablity to serve thie development, 15. The applicant shall have three 0) yetre frOM the -date this -docleina is mailed to complete ail iworovemente and have ,a JA.nal mytnr reontded, In lieu Of completing the impxavomente, the !applicant mvly pest -;,onf,1 to cOvox 114% of ttlu wat of the 'ontieIpeted regoimmente in order to reoord the final py:lar., 16, Th a appithast „shall c.'omPlate all condi:tic:he Of a- proval prinr Lo the recording of the final mylar, i7, The applicant sh'all plent trees Tr. eofficiant and numt;or along ,(-2Amp Polk Poed ae noted in the Atnuat 19W.;1 MimoratIdum, applic-ant h1lpot a Gign apprwre6 by POlic Wori,:a th," ent!ranco QE the romd t2itok.e parm:lu notifying trier public that. eirpianea 8S: Weal .a33 meter. vehi,,Aaa uho, the 'te)G0 rOae, -7- FINDINGS AND DECT8TON, N< -1A1. CU -89768/T9-701 Exhibit1 7ef 12 DECIOIOV r 't4L DRIX6; MOO. DAU EAMED$ MMUS VP. OD, NAILVD thioth dey a itevst - s_ .... , •k3k0P7-frafT----- • geerinle DOCC 1-1..zkratitIg ndW Ah$m 1PIRDINO$ WEz0I0t4; ftso CU7-008/TV-09-701 Exhibit 1 0 of 12 FILE NUMBERS: HEARING DATE: HEARINGS OFFICER DECISION 247 -18 -000138 -DR May 22, 2018, 6:00 p.m. Mailing Date: Wednesday, July 25, 2018 APPLICANT/OWNER: Eagle Air Estates Homeowners Association ATTORNEY: J Christian Malone 550 NW Franklin Avenue, #378 Bend, Oregon 97703 STAFF CONTACT: Peter Russell, Senior Transportation Planner HEARINGS OFFICER: Gregory J Frank SUMMARY OF DECISION: The paved taxiway at the Eagle Air Estates Cluster Development violates open space requirements. I. APPLICABLE CRITERIA: Public Law PL -15 Section 1.030, Definitions (21) and (80) Section 8.050, Specific Use Standards (16) Title 22, Deschutes County Development Procedures Ordinance Chapter 22.40, Declaratory Ruling Land Use Approval CU 89-68/TP-89-701 II. BASIC FINDINGS: A. LOCATION: The subject property is the Common Area associated with the Eagle Air Estates Subdivision and is identified on County Assessor's Tax Map 14-10-33D, as Tax Lot 99 (the "Subject Property"). B. ZONING: The Subject Property is zoned Rural Residential (RR -10). C. LOT OF RECORD. The Subject Property is a legal lot of record because it was platted as the Common Area of TP -89-701, Lot 0, of Eagle Air Estates Subdivision. File: 247 -18 -000138 -DR 1 D. PROPOSAL: The Applicant is requesting a declaratory ruling to determine that the paved taxiway does not violate the open space requirement of the Eagle Air Estates Subdivision (CU-89-68/TP-89-701). E. LAND USE HISTORY: In 1979 the County approved a plan amendment/zone change from Extensive Agriculture to Planned Rural Residential and a zone change from Rural Recreation Residential (RR -1) to Planned Development (PA -78-12/Z-78-67) for this property. In 1980, the County approved a multi -phase condominium development totaling 175 units plus a 150 -seat restaurant (SP -80-44). The development was known as Lake Village, but was never constructed. In 1989, the County approved a conditional use permit for a 12 -lot cluster development subdivision, Eagle Air Estates ("EAE Cluster Development") under CU-89-68/TP-89-701. The EAE Cluster Development abuts the northwest edge of the Sisters Eagle Airport. The EAE Cluster Development is an aviation -oriented single-family subdivision with hangers on most of the developed lots. A paved taxiway leads from the end of a private roadway (a turnaround) through the subdivision to the Sisters Eagle Airport runway. A 300 -foot overrun area was constructed on EAE Cluster Development open space common area property at the north end of the Sisters Eagle Airport some time in 2015. The County opened a code enforcement case, citing the paved overrun as an unpermitted use in the RR -10 zone and in violation of the 65% open space requirement of the EAE Cluster Development approval. The County provided an August 8, 2016 memo to Applicant outlining several potential corrective actions ranging from removal of the overrun to text amendments to a declaratory ruling on the issue. The overrun was removed in December 2017. Subsequently, a private party filed a code enforcement complaint against Applicant regarding the paved taxiway, claiming the paved taxiway was also an unpermitted use in the RR -10 zone and violated the 65% open space requirement. Applicant, thereafter, applied for this declaratory ruling in response to the code enforcement proceeding. The paved taxiway, located within the open space common area, has existed for almost 30 years. F. REVIEW PERIOD: The application, in this case, was submitted on February 8, 2018, and deemed complete by the Planning Division on March 9, 2018. The original 150 -day clock expired on August 6, 2018. At the May 22, 2018 hearing the Applicant agreed to the following timeline: May 29, 2018 for additional written comment; June 5, 2018 for mutual rebuttal, and June 18, 2018 for final rebuttal. That added 27 days to the calendar, moving the 150th day to September 2, 2018 (which is a Sunday). Opponent's Attorney, on June 28, 2018, requested the Hearings Officer address the possibility that Applicant submitted "new evidence" in its "final argument." Applicant agreed to a further extension of the 150 -day clock. The Hearings Officer finds the 150th day, for this case, is September 12, 2018. File: 247 -18 -000138 -DR 2 II. GENERAL FINDINGS: A. HISTORY The Hearings Officer finds there is little, if any, dispute as to the accuracy of the dates, times and events related to the development of the Eagle Air Estates Cluster Development ("EAE Cluster Development"). A brief history of the EAE Cluster Development follows. On or about 1989 Vern and Sandy Goodsell (hereafter the "Original Applicants") submitted an application to Deschutes County requesting approval of a 12 -lot Cluster Development located directly north of, and adjacent to, the Sisters Airport.' A decision by a Deschutes County Hearings Officer ("Hearings Officer Fitch"), titled Findings and Decision2 ("CU-89-68/TP-89-701 Approval") and dated August 8, 1989 summarized the Original Applicant's request as follows: "The [Original] applicant has proposed a 12 lot Cluster Development called Eagle Air Estates. Access to the lots would be off of a private road leading from Camp Polk Road. The private road, as proposed, would also connect to the northern end of the Sisters Airstrip. The 12 lot development is designed to be an airpark subdivision, where lot owners could taxi their personal planes out onto the private road and then to the airstrip." Later, in the CU-89-68/TP-89-701 Approval, Hearings Officer Fitch stated: 'At the hearing on August 1,1989, the applicant submitted a revised plan which addressed many of the concerns that have been addressed by the Planning Department and others. The applicant and the Planning Department and others recommended approval based upon the revised plan." Based upon concerns for the safety of vehicles traveling on the internal private road, Pilot Drive, the Original Applicants modified the design for Pilot Drive by ending the private road at a turnaround and not at the Sisters Airport runway. The CU-89-68/TP- 89-701 Approval included the design revision which ended the Pilot Drive roadway at the turnaround rather than at the Sisters Airport runway. The map attached to the CU- 89-68/TP-89-701 Approval shows a turnaround at the end of Pilot Drive and a strip of common area between the turnaround and the Sisters Airport runway. Based upon representations by the Applicant's Attorney, development of the EAE Cluster Development started shortly after the CU-89-68/TP-89-701 Approval. Applicant's Attorney suggested that the paved taxiway, in the area between the private road turnaround and the Sisters Airport, was partially paved shortly after the CU-89-68/TP- 89-701 Approval. There is no evidence in the record that Applicant recorded in public i The Sisters Airport was privately owned at the time of the Goodsell application for approval of the 12 -lot Ouster Subdivision. The Sisters Airport has been sold one or more times since 1989. 2 A copy of the Hearings Officer Fritz' Findings and Decision, dated August 8, 1989, is attached to the application for Declaratory Ruling (Exhibit 1 pages 1 through and including 12). File: 247 -18 -000138 -DR 3 records or otherwise memorialized that a paved taxiway lawfully runs between the turnaround and the Sisters Airport. There is no evidence in the record that the CU-89- 68/TP-89-701 Approval expressly approved a paved taxiway in the common area/open space lot section running from the private road turnaround to the Sisters Airport. More recently a code complaint was filed alleging the EAE Cluster Development was in violation of the Deschutes County Code (see Notice of Violation and Proposed Civil Penalty - attached to Applicant's Argument in Support of Request for Declaratory Ruling, Exhibit 10). One alleged code violation involved the construction, by the EAE Cluster Development homeowner's association ("EAE HOA" — the Applicant in this case), of a "paved runway runout." This violation was represented by Planning Staff and Applicant as having been corrected by removal of the "paved runway runout." A second code violation related to a "nuisance." The "nuisance" violation was based upon the alleged violation, by Applicant, of open space code requirements related to the construction of the "paved runway runout." The Hearings Officer believes the second violation has been corrected by the removal of the "paved runway runout." The third alleged violation also alleges the construction of a paved taxiway within the EAE Cluster Development common area constituted a nuisance. This alleged violation ultimately resulted in Applicant filing for a Declaratory Ruling to determine if the paved taxiway violated open space requirements. Applicant, at the Hearing, was represented by Attorney J Christian Malone ("Applicant's Attorney"). The primary opponent (Sisters Runway Inc. and Sisters Airport Property LLC) to this Application, in this case, was represented by Attorney Liz Opponent's Attorney ("Opponent's Attorney"). Deschutes County was represented by Senior Transportation Planner Peter Russell ("Staff Planner"). Other persons appeared at the Hearing and/or submitted documents into the evidentiary record. B. PROCEDURAL ISSUE: Was new evidence included in Applicant's Final Argument? Applicant's Attorney submitted a document, dated June 18, 2018, titled Final Argument in Support of Request for Declaratory Ruling ("Final Argument"). Opponent's Attorney, submitted a document, dated June 27, 2018, titled Objection to Applicant's Final Argument Containing New Evidence ("Objection to New Evidence"). Opponent's Attorney, in the Objection to New Evidence, alleged that the Final Argument contained "new evidence" as that phrase is described in ORS 197.763 (6)(e). Opponent's Attorney asserted, in the Objection to New Evidence, that ORS 197.763 (6)(e) states, in relevant part, the following: "...Unless waived by the applicant, the local government shall allow the applicant at least seven days after the record is closed to all other parties to submit final written arguments in support of the application. The applicant's final submittal shall be considered part of the record, but shall not include any new evidence." (Emphasis added by the Hearings Officer) File: 247 -18 -000138 -DR 4 ORS 197.763 (9) defines "evidence" and "argument" as follows: "(a) 'Argument' means assertions and analysis regarding the satisfaction or violation of legal standards or policy believed relevant by the proponent to a decision. "Argument" does not include facts. (b) 'Evidence' means facts, documents, data or other information offered to demonstrate compliance or noncompliance with the standards believed by the proponent to be relevant to the decision." Opponent's Attorney, in the Objection to New Evidence document, specified the following items found in the Final Argument constitute "new evidence," as that concept is set forth in ORS 197.763 (6)(e) included the following: 1. "Improvement for recreational uses in a destination resort is allowed as open space. 2. Paved areas in destination resorts are allowed as open space. 3. The 65% open space requirement for cluster developments is analogous to the 50% open space requirement for destination resorts. 4. All of these facts cited to Oregon Revised Statutes Chapter 197. 5. DCC 18.133 Ch. 18.113 governing destination resorts is cited as analogous as well 6. Oregon Administrative Rules are entered into the record as factual evidence that improved spaces are allowed in other types of 'open space' and suggests this fact should be considered in the instant case." The Hearings Officer finds that the phrase "new evidence," as referenced in ORS 197.763(6)(e) is not defined. The Hearings Officer finds that the term "evidence" is defined in ORS 197.763 (9). The Hearings Officer finds "new evidence" means "facts, documents, data or other information offered to demonstrate compliance or noncompliance with the standards believed by the proponent to be relevant to the decision" that had not been submitted into the evidentiary record of the case prior to the submission of an applicant's statutory of final argument provided in ORS 197.763 (6) (e). In other words, if facts, documents, data or other information had not been placed in the public record/file during the application, staff review, public hearing or open evidentiary record period, then the facts, documents, data or other information included in applicant's final argument would be prohibited (considered "new evidence"). The Hearings Officer believes that the ORS 197.763 (9) definition of "argument" is supportive of the Hearings Officer's definition of "new evidence." In particular, "argument" relates to the assertions and analysis regarding the satisfaction or violation of legal standards. Argument, in the view of the Hearings Officer, is applying legal analysis to facts, documents or other information already in the record. File: 247 -18 -000138 -DR 5 In this case it appears that Opponent's Attorney is asserting that codes and regulations relating to destination resorts and LCDC Goal 5 regulations related to open space constitute "new evidence." The Hearings Officer finds that Opponent's Attorney's argument related to destination resort regulations is not persuasive. The record contains a May 29, 2018 letter from J. Kenneth Katzaroff ("Katzaroff Letter"). The Katzaroff Letter contains the following statement: "Lastly, this provision is regularly relied upon by the county and development parties, such as destination resorts, to allow development in areas that would otherwise be left natural..." The Hearings Officer finds at least one reference was made to destination resort regulations prior to the submission of the Final Argument. Because destination resort regulations had been discussed, albeit briefly, in a document that was timely submitted into the evidentiary record, destination resort comments by Applicant in the Final Argument do not constitute "new evidence." The Hearings Officer did not find any specific reference to OAR 660-023-0220 (Procedures and requirements for complying with Goal 5 — Open Space) in the record. However, the Hearings Officer finds numerous references, in the record, to Oregon State statutes and regulations. These references were made to either support various interpretations of DCC 18.04.030 (Open Space). The Hearings Officer considers the reference to OAR 660-023-0220 to be just one more attempt to interpret the meaning of open space as used in the Deschutes County Code and CU-89-681TP-89-701 Approval; the most critical issue presented in this case. The Hearings Officer, in conclusion, finds references to destination resort codes/regulations and LCDC Goal 5 regulations, is not "new evidence." The Hearings Officer finds that reference to these sections of code/regulations are better characterized as "argument." The Hearings Officer finds, based upon the above, that the record in this case should not be re -opened and the information contained in the Final Argument should not be rejected. C. PROCEDURAL ISSUE: Availability of the Declaratory Ruling Process. The Applicant, in this case, seeks a "declaratory ruling that the paved taxiway does not violate `open space' requirement" Land Use Application submitted to the Deschutes County Community Development Department on February 8, 2018 (the "Land Use Application"). The availability of the declaratory ruling process is set forth in DCC 22.40. The Hearings Officer finds that it is necessary to determine whether or not the Application, in this case, was properly submitted under DCC 22.40. The following represent findings related to the appropriateness of the Declaratory Ruling Process in this case. File: 247 -18 -000138 -DR 6 22.40.010. Availability of Declaratory Ruling. A. Subject to the other provisions of DCC 22.40.010, there shall be available for the County's comprehensive plans, zoning ordinances, the subdivision and partition ordinance and DCC Title 22 a process for: 1. Interpreting a provision of a comprehensive plan or ordinance (and other documents incorporated by reference) in which there is doubt or a dispute as to its meaning or application; 2. Interpreting a provision or limitation in a land use permit issued by the County or quasi-judicial plan amendment or zone change (except those quasi-judicial land use actions involving a property that has since been annexed into a city) in which there is doubt or a dispute as to its meaning or application; FINDING: Applicant's Attorney and the Staff Planner both proposed findings for these sections of DCC 22.40. Staff Report page 3 and Applicant's Argument in Support of Request for Declaratory Ruling page 4. Opponent's Attorney argued Applicant's request is not properly addressed using the Declaratory Ruling process. Opponent's Attorney hearing testimony and Exhibit C (submitted at the Hearing). The Hearings Officer finds that the argument presented by Applicant's Attorney and the Staff Planner, with respect to DCC 22.40 A. 1. and A.2,.is persuasive. The findings below generally reflect the language proposed by the Staff Planner in the Staff Report. The Hearings Officer finds that the Applicant is requesting a determination on whether a paved taxiway violates the 65% open space requirement, which is a condition of approval of CU-89-68/TP-89-701. The Hearings Officer finds the land use application at hand stems from the County receiving a code enforcement complaint regarding the presence of the paved taxiway. The County identified a declaratory ruling as one option to determine the matter. The Hearings Officer finds, as stated by Applicant's Attorney, that there is a "live fact -specific controversy" on this issue or whether a paved taxiway violates the open space requirement. 3. Determining whether an approval has been initiated or considering the revocation of a previously issued land use permit, quasi-judicial plan amendment or zone change; FINDING: The EAE Cluster Development lots have all been permitted and developed and the materials submitted by Applicant's Attorney indicated the paved taxiway has been in repeated use since its March 1991 construction. The initiation of the use is not in dispute. 4. Determining the validity and scope of a nonconforming use; FINDING: Applicant's Attorney argues the paved taxiway is a permitted use and does not raise the issue of nonconformance. File: 247 -18 -000138 -DR 7 5. Determination of other similar status situations under a comprehensive plan, zoning ordinance or land division ordinance that do not constitute the approval or denial of an application for a permit; and FINDING: The Staff Planner noted that while the County has numerous private airstrips, they typically serve only one property and predominantly are located in the Exclusive Farm Use (EFU) zone. The Staff Planner noted that he was aware of only one other cluster subdivision with a paved taxiway in the RR -10 zone. That 5 -lot cluster subdivision, Hawksflight Airpark, lies to the immediate south of EAE. Hawksflight Airpark, which was approved under CU-06-88/TP-06-975, has a paved taxiway in the RR -10 zone and a 65% open space requirement. There is not a code enforcement complaint against the Hawksflight subdivision and thus those properties are not part of this declaratory ruling. 6. Verifying that a lot of parcel meets the "lot of record" definition in 18.040.030 pursuant to DCC 22.04.040(D). Such a determination or interpretation shall be known as a "declaratory ruling" and shall be processed in accordance with DCC 22.40. In all cases, as part of making a determination or interpretation the Planning Director (where appropriate) or Hearings Body (where appropriate) shall have the authority to declare the rights and obligations of persons affected by the ruling. FINDING: The common area/open space lot was established and approved under CU-89-68/TP-89-701 and is thus a legal lot in the Eagle Air Estates Cluster Development. B. A declaratory ruling shall be available only in instances involving a fact - specific controversy and to resolve and determine the particular rights and obligations of particular parties to the controversy. Declaratory proceedings shall not be used to grant an advisory opinion. Declaratory proceedings shall not be used as a substitute for seeking an amendment of general applicability to a legislative enactment. FINDING: Applicant's Attorney and the Staff Planner agreed that it is clear that the determination of whether a paved taxiway violates the EAE requirement for 65% open space is a fact -specific controversy. The Staff Planner also suggested that an additional fact -specific controversy exists involving the determination of whether a paved taxiway is allowed in the RR -10 zone. The Hearings Officer finds determining whether or not a paved taxiway violates the open space requirements of the EAE subdivision is a fact -specific controversy. The Hearings Officer finds the Staff Planner's suggestion that determining whether a paved File: 247 -18 -000138 -DR 8 taxiway is allowed in the RR -10 zone is outside the scope of the Hearings Officer jurisdiction in this case. The Hearings Officer finds the Applicant was clear and concise in its Land Use Application statement setting forth its request: "Declaratory ruling that the paved taxiway does not violate "open space" requirement. C. Declaratory rulings shall not be used as a substitute for an appeal of a decision in a land use action or for a modification of an approval. In the case of a ruling on a land use action a declaratory ruling shall not be available until six months after a decision in the land use action is final. FINDING: The appeal period for the subject property has been expired for nearly three decades. Opponent's Attorney argued that any decision in this case, allowing a paved taxiway in an open space zone, would properly be characterized as a modification of the approval. The Hearings Officer disagrees with Opponent's Attorney's modification of approval argument. The Hearings Officer finds the focus of Applicant's declaratory ruling issue is to interpret the open space condition of the original EAE approval, The focus of the Hearings Officer, in this case, will be to carefully avoid modification of the original EAE cluster development approval. D. The Planning Director may refuse to accept and the Hearings Officer may deny an application for a declaratory ruling if: 1. The Planning Director or Hearings Officer determines that the question presented can be decided in conjunction with approving or denying a pending land use action application or if in the Planning Director or Hearings Officer's judgment the requested determination should be made as part of a decision on an application for a quasi- judicial plan amendment or zone change or a land use permit not yet filed; or 2. The Planning Director or Hearings Officer determines that there is an enforcement case pending in district or circuit court in which the same issue necessarily will be decided as to the applicant and the applicant failed to file the request for a declaratory ruling within two weeks after being cited or served with a complaint. The Planning Director or Hearings Officer's determination to not accept or deny an application under DCC 22.40.010 shall be the County's final decision. FINDING: There is neither a land use application nor an enforcement case pending in district or civil court. 22.40.020. Persons Who May Apply. A. DCC 22.08.010(B) notwithstanding, the following persons may initiate a declaratory ruling under DCC 22.40: File: 247 -18 -000138 -DR 9 1. The owner of a property requesting a declaratory ruling relating to the use of the owner's property; 2. In cases where the request is to interpret a previously issued quasi-judicial plan amendment, zone change or land use permit, the holder of the permit; or 3. In all cases arising under DCC 22.40.010, the Planning Director. No other person shall be entitled to initiate a declaratory ruling. FINDING: The Applicant is the owner of the Subject Property. This criterion is met. B. A request for a declaratory ruling shall be initiated by filing an application with the planning division and, except for applications initiated by the Planning Director, shall be accompanied by such fees as have been set by the Planning Division. Each application for a declaratory ruling shall include the precise question on which a ruling is sought. The application shall set forth whatever facts are relevant and necessary for making the determination and such other information as may be required by the Planning Division. FINDING: The Applicant filed the necessary declaratory ruling application and paid the required fee. The Hearings Officer finds the question posed by the Applicant is whether a paved runway violates the 65% open space requirement found in the approval of CU- 89-68/TP-89-701. The Hearings Officer finds this criterion is met. 22.40.030. Procedures. Except as set forth in DCC 22.40 or in applicable provisions of a zoning ordinance, the procedures for making declaratory rulings shall be the same as set forth in DCC Title 22 for land use actions. Where the Planning Division is the applicant, the Planning Division shall bear the same burden that applicants generally bear in pursuing a land use action. FINDING: The declaratory ruling application is being processed according to Tide 22. Prior public notice was sent to adjoining properties in accordance with Title 22 and the date of the hearing was published in the Bend Bulletin newspaper. The decision will be noticed and sent to all required parties. This criterion will be met. 22.40.040. Effect of Declaratory Ruling. A. A declaratory ruling shall be conclusive on the subject of the ruling and bind the parties thereto as to the determination made. B. DCC 22.28.040 notwithstanding, and except as specifically allowed therein, parties to a declaratory ruling shall not be entitled to reapply for a declaratory ruling on the same question. C. Except when a declaratory ruling is made by the Board of County Commissioners, the ruling shall not constitute a policy of Deschutes County. File: 247 -18 -000138 -DR 10 FINDING: The declaratory ruling decision will be conclusive on the subject of the issue whether a paved taxiway violates the 65% open space requirement of CU-89- 68/TP-89-701. 22.40.050. Interpretation. Interpretations made under DCC 22.40 shall not have the effect of amending the interpreted language. Interpretation shall be made only of language that is ambiguous either on its face or in its application. Any interpretation of a provision of the comprehensive plan or other land use ordinance shall consider applicable provisions of the comprehensive plan and the purpose and intent of the ordinance as applied to the particular section in question. FINDING: Opponent's Attorney, in her hearing testimony (see also Exhibit C) argued that any approval that may be issued in this case would necessarily involve a finding demonstrating compliance with the Deschutes County comprehensive plan. The Hearings Officer disagrees with Opponent's Attorney's comprehensive plan argument. The Hearings Officer finds this case is limited to determining whether or not the CU-89- 681TP-89-701 approval allowed a paved taxiway within the 65% open space area, The Hearings Officer finds the comprehensive plan does not need to be interpreted in order to reach a decision in this declaratory ruling process. The Hearings Officer finds this criterion is met. D. PROCEDURAL ISSUE: RELEVANCY OF ISSUES RAISED BY CASE PARTICIPANTS The Staff Planner and a number of persons identified as opponents to Application Declaratory Ruling request raised a number of issues that may or may not be relevant to the decision in this case. The Hearings Officer finds that Applicant, in its Land Use Application, established the issue to be addressed in this Declaratory Ruling process. Applicant stated, in the Land Use Application, that it requested a "declaratory ruling that the paved taxiway does not violate 'open space' requirement." The Hearings Officer finds consideration may be given to "other issues" only if those issues are directly related to the question presented by Applicant; "does the paved taxiway violate open space requirement?". The Staff Planner, in the Staff Report and a May 2, 2018 Memorandum stated "staff looks to the hearings officer to determine" a number of issues. Below, the Hearings Officer responds to each of the Staff Planner issues: Is the Paved Taxiway allowed in Rural Residential Zone (RR -10)? Hearings Officer Response: The Hearings Officer finds this question is beyond the scope of the issue raised by Applicant in its Land Use Application. While answering this question may ultimately be important or necessary to the County, Applicant and File: 247 -18 -000138 -DR 11 opponents, the Applicant did not seek a declaratory ruling from the Hearings Officer as to whether a paved taxiway is allowed in the RR -10 zone. The Hearings Officer did not address this issue in this decision. Is the Paved Taxiway allowed in open space area? a. What is the appropriate definition and application of the Code phrase - "open space"? b. Does paved taxiway, per code definition, "enhance recreation opportunities"? c. Does code term "development" include a paved taxiway? (8.050 (16)(B)(1)...does limitation on "human activities" result in the paved taxiway being considered "development?" Hearings Officer Response: The Hearings Officer finds the above -stated Staff Planner raised questions to be directly related to Applicant's issue. These questions are addressed in the findings below. Does a Paved Taxiway cause EAE to violate 65% open space requirement? Hearings Officer Response: The Hearings Officer finds the above -stated Staff Planner raised question is directly related to Applicant's issue. This question is addressed in the findings below. If the Paved Taxiway does not appear on the plat, does that affect the determination of open space? Hearings Officer Response: The Hearings Officer finds no evidence in the record, in particular the CU-89-68/TP-89-701 Approval, referencing a paved taxiway. The Hearings Officer, is not allowed, in the Declaratory Ruling process, to modify the CU-89- 68/TP-89-701 Approval. The Hearings Officer does not find this question relevant to determining whether a paved taxiway violates open space requirements. The Hearings Officer did not address this issue in this decision. If there is no legal access to the Sisters Eagle Airport, is the paved area still a taxiway? Hearings Officer Response: The Staff Planner and Opponent's Attorney suggested that the Applicant HOA, or individual property owners, do not have legal access to the Sisters Airport from the EAE Cluster Development. Applicant's Attorney submitted documents suggesting the EAE HOA (or individual EAE Cluster Development owners) does have a right of access to the Sisters Airport. The Hearings Officer finds the resolution of the issue raised by Applicant (does the paved taxiway violate open space requirement?) is not dependent upon whether there is legal access to the Sisters File: 247 -18 -000138 -DR 12 Airport. The Hearings Officer appreciates the importance of legal access, by EAE HOA and individual property owners, to the Sisters Airport. However, a determination of the existence, or lack thereof, of legal access is not relevant to answering the sole issue before the Hearings Officer in this Declaratory Ruling case. Opponent's Attorney raised a number of issues during testimony at the Hearing or in written submissions of documents into the evidentiary record of this case. The Hearings Officer summarizes those issues below. Safety — allowing a paved taxiway at the proposed location would create a safety risk to aircraft using the Sisters Airport. Hearings Officers Response. The Hearings Officer finds the safety issues raised by Opponent's Attorney are not relevant to answering Applicant's Declaratory Ruling issue (does a paved taxiway violate open space requirements?) The Hearings Officer did not address the safety issue in this decision. Flooding Risk — opponents assert the paved taxiway creates a safety risk. Hearings Officer Response. The Hearings Officer finds flooding risks that may be created by the paved taxiway is not relevant to answering Applicant's Declaratory Ruling issue (does a paved taxiway violate open space requirements?). The Hearings Officer did not address the flooding risk issue in this decision. Setbacks — opponents assert that various setback requirements are not met. Hearings Officer Response. The Hearings Officer finds that violation, or not, of County setback requirements by one or more EAE Cluster Development property owner is not relevant to answering Applicant's Declaratory Ruling issue (does a paved taxiway violate open space requirements?). The Hearings Officer did not address the setback violation issue in this decision. E. SUBSTANTIVE FINDINGS: DOES A PAVED TAXIWAY VIOLATE OPEN SPACE REQUIREMENTS? Applicant's Attorney, in the Land Use Application, states that the Applicant is requesting a Hearings Officer decision that answers just one question; Does a "paved taxiway violate 'open space' requirement." To adequately respond to Applicant's request the Hearings Officer must consider the approval of the EAE Cluster Development ("CU-89-68/TP-89-701 Approval") and laws/regulations relevant to the approval of the EAA cluster subdivision. While perhaps repetitious the Hearings Officer finds it important to remind the reader of this decision that the Hearings Officer's task is to interpret, not modify, language contained in the File: 247 -18 -000138 -DR 13 EAE Cluster Development Approval in the context of relevant laws/regulations in place at the time of the EAE Cluster Development Approval. 1. Key sections of the CU-89-68/TP-89-701 Approval and Key Sections of Underlying Deschutes County Code. Applicant's Attorney submitted, into the record of this case, a copy of the Findings and Decision for CU-89-68/TP-89-701 (Applicant's Land Use Application Exhibit 1). This decision was issued by Hearings Officer Fitch. In a preliminary finding for CU-89-68/TP- 89-701 the Hearings Officer Fitch noted the following: "The applicant has proposed a 12 lot Cluster Development called Eagle Air Estates. Access to the lots would be off of a private road leading from Camp Polk Road. The private road, as proposed, would also connect to the northern end of the Sisters Airstrip. The 12 lot development is designed to be an airpark subdivision, where lot owners could taxi their personal planes out onto the private road and then to the airstrip." Hearings Officer Fitch also noted, in his findings for CU-89-68/TP-89-701, that: "At the hearing on August 1, 1989, the applicant submitted a revised plan which addressed many of the concerns that have been addressed by the Planning Department and others. The applicant and the Planning Department and others recommended approval based upon the revised plan." Hearings Officer Fitch, in the Conclusionary Findings, paragraph 4, stated: "Cluster and planned developments shall maintain a minimum of 65% of the land in open space, timber or agricultural uses compatible with the surrounding area and the development area. The open space of the development may be platted as a separate parcel or in common ownership of some or all of the clustered unit; however, open area shall not be subject to development unless the whole development is brought inside an urban growth boundary. Also service connections shall be a minimum length necessary and underground where feasible. Roads shall meet County standards, to be dedicated to the public and may be accepted in the County Road System by the County for maintenance." Hearings Officer Fitch, in the Conclusionary Findings related to "Conformance with Section 8.050 (6) of PL -15", stated in paragraph B.1.A.(1) page 5 of 12 of Applicant's Exhibit 1) the following: "The applicants proposal is unique and would certainly provide an opportunity for individuals to live in a rural setting and utilize their private planes all in one location." The Hearings Officer also stated, in paragraph B.1.B.(2), (page 6 of 12 of Exhibit 1) that "The open space areas are proposed to remain natural and not put toward any development." File: 247 -18 -000138 -DR 14 This Hearings Officer takes note of the Tentative Plan (page 10 of 12, Exhibit 1) and Eagle — Air Estates recorded plat (page 12 of 12, Exhibit 1) showing 12 lots and the boundary of "open space." The Hearings Officer finds the following represents an accurate representation of the definition of Open Space that would have been applied to the application for the EAE cluster subdivision. "PL -15 section 1.030 (80) Open Space. Land used for agricultural or forest uses, and any land area that would, if preserved and continued in its present use conserve and enhance natural or scenic resources; protect air, streams, or water supply; promote conservation of soils, wetlands, beaches, or marshes; conserve landscaped areas such as public or private golf courses, that reduce pollution and enhance the value of abutting or neighboring parks, forests, wildlife preserves, nature reservations or other open spaces; enhance recreational opportunities; preserve historic, geological and archeological sites; promote orderly urban development; and minimize conflicts between farm and non-farm uses." Finally, the Hearings Officer considered a portion of PI -15, modified by Board Ord. 84- 015, Section 8.050, Specific Use Standards (16) Cluster Development, as set forth below: "(B) The conditional use shall not be granted unless the following findings are made: (1) Human activities, including all development and alterations of the natural landscape, will be limited to 35 percent of the land and 65 percent will be kept in open space uses... (2) Uses permitted in the open space area may include the management of natural resources, trail systems or other outdoor uses that are consistent with the character of the natural landscape... (7) The open space of the proposed development may be platted as a separate parcel or in common ownership of some or all of the clustered units, however, the open area shall not be subject to development unless the whole development is brought inside an urban growth boundary." 2. Scope of Review Applicant's Attorney noted, in the Final Argument, that the County and opponents to the application "have attempted to expand the scope of the limited, precise determination that the hearings officer must make. The Hearings Officer agrees with Applicant's statement that there have been a number of issues raised in this proceeding that are not directly related to the single issue presented in Applicant's request for a Declaratory Ruling. Once the Hearings Officer determined that the Declaratory Ruling process was an appropriate avenue to address the "taxiway in the open space" issue then other, File: 247 -18 -000138 -DR 15 unrelated issues should not be considered. See Findings for RELEVANCY OF ISSUES RAISED BY CASE PARTICIPANTS. Despite Applicant's Attorney's attempt to restrict the Hearings Officer's consideration, in this case, to answering the single question of whether or not a paved taxiway violates the open space requirement the Hearings Officer finds Applicant's Attorney also suggested that the paved taxiway, within the EAE Cluster Development, was not located within the open space (or common area) as approved. The Hearings Officer finds the Applicant's Attorney's statement of the Declaratory Ruling issue did not include a request for a confirmation that the paved taxiway was not located within in designated open space. For that reason alone the Hearings Officer need not consider Applicant's suggestion that the paved taxiway is not within an open space area. The Hearings Officer also finds that the EAE Cluster Development, as originally proposed, did include a paved roadway connecting Camp Polk Road to the Sisters Airpark. However, as noted above in the CU-89-68/TP-89-701 Approval the application was modified and thereafter approved with the paved private roadway ending at a turnaround and not at the Sisters Airpark. The revised plat shows the location of the current paved taxiway to be located within land designated as common area and/or open space. The Hearings Officer finds the paved taxiway is not located within a private roadway ending at the turnaround; the Hearings Officer finds the paved taxiway is located within land designated by the plat as common area and/or open space. 3. Overview of County, Applicant and Opponent Arguments. The primary argument presented by Applicant's Attorney is that a paved taxiway, in the context of the EAE airpark cluster subdivision, is open space pursuant to PL -15, Section 1.030, Definitions (80). Specifically, Applicant's Attorney argues that the paved taxiway, located in an air park development, is land that enhances recreational opportunities and therefore meets the requirements of open space as set forth in PL -15 Section 1.030 (80). The Staff Planner and Opponent's Attorney (representing the principal opponent) suggest that open space may only include land left in a natural condition. The Hearings Officer intends to answer the question of whether or not a paved taxiway violates open space requirements in a two-step process. The first step involves a review the CU-89-681TP-89-701 Approval document. There are references to open space in the CU-89-68/TP-89-701 Approval document the Hearings Officer needs to determine if those references are determinative of the issue (does the paved taxiway violate open space requirements). The second step involves a review of the definition of open space (PL -15 Section 1.030 (80)) and specific use standards applicable to Cluster Developments (PL -15, modified by Board Ord. 84-015, Section 8.050 (16). File: 247 -18 -000138 -DR 16 4 CU-89-68/TP-89-701 Approval Document (First Step) The CU-89-68/TP-89-701 Approval document, issued by Hearings Officer Fitch on August 8, 1989, clearly characterized the EAE Cluster Development proposal as one where "lot owners could taxi their personal planes out onto the private road and then to the airstrip." The Hearings Officer finds it is clear that the CU-89-68/TP-89-701 approval document anticipated airplanes traveling from the 12 Cluster Development lots to the Sisters Airpark (Findings of Fact, paragraph 3). The CU-89-68/TP-89-701 approval noted that Hearings Officer Fitch approved a "revised plan" and not the original plan. The Hearings Officer believes, based upon comments by the Staff Planner and Applicant's Attorney in the Argument in Support of Request for Declaratory Ruling (pages 2 and 3 of 12) the original plan for the EAE Cluster Development was to have a private roadway run from Camp Polk Road all of the way to the edge of the Sisters Airpark. The Hearings Officer also finds that concerns were expressed about the private roadway running all of the way to the Sisters Airpark because it created the possibility of automobiles entering, unimpeded, upon the Sisters Airpark runway; an obvious safety concern. The Hearings Officer believes the "revised plan" referenced by Hearings Officer Fitch in the CU-89-68/TP-89- 701Aapproval, included the private road being terminated at a turnaround and the section between the turnaround and Sisters Airport was designated as common area/open space. The Hearings Officer finds, based upon the best evidence in the record, that the area between the turnaround and the Sisters Airpark is not part of the private roadway but rather is part of the common area/open space within the EAE Cluster Development. The Hearings Officer finds the CU-89-68/TP-89-701 Approval required 65% of the land, within the EAE Cluster Development, to be maintained as open space, timber or agricultural uses compatible with the surrounding area and the development area (Conclusionary Findings, paragraph 4). This finding also stated that "open space shall not be subject to development unless the whole development is brought inside an urban growth boundary." Finally, the CU-89-68/TP-89-701 Approval states "the open space areas are proposed to remain natural and not put toward any development." Applicant's Attorney argued that the paved taxiway located within the common area/open space is not development. The Hearings Officer reviewed the record and found no relevant definition of the word "development" to be applied to the CU-89- 68/TP-89-701 approval language quoted above. The Hearings Officer finds development, as that term is used in the CU-89-68/TP-89-701 Approval, refers to activities such as constructing residential structures, outbuildings, utility lines and roadways. The inquiry, in this section of the findings, is whether or not laying asphalt pavement on the ground, to create a paved taxiway, is development. The Hearings Officer finds laying asphalt pavement on the ground (or any other material used to File: 247 -18 -000138 -DR 17 create a hard surface to allow vehicles/aircraft to travel over) is analogous to laying pavement for a public or private road. The Hearings Officer finds the paved taxiway is development. The Hearings Officer finds CU-89-681TP-89-701 Approval language that the open space areas are proposed to remain natural is important in this case. The Hearings Officer finds paving the common area for a taxiway is contrary to the approval language requiring the open space land to remain natural. The Hearings Officer finds, as additional support for this section, the findings set forth below for PL -15 (16) and PL -15 modified by Board Ord. 840015. In particular, the Hearings Officer notes the language in PL -15 Section 8.050 (16) states that that "human activities, including all development and alternations of the natural landscape, will be limited to 35 percent of the land and 65 percent will be kept in open spaces." The Hearings Officer finds laying pavement for a taxiway is a human activity and development that must be located in the 35% (non -open space) area. The Hearings Officer finds that allowing the paved taxiway within the EAE Cluster Development common area/open space lot would be a modification of the CU-89- 68/TP-89-701 Approval because the CU-89-68/TP-89-701 Approval clearly prohibits development within the common area/open space land. 5. PL -15 Section 1.030, (21) and PL -15 Section 1.030 (80) and PL -15 Section 8.050 (16) modified by Board Ord. 84-105 PL -15 Section 8.050 (16), as quoted above, was applicable to the 1989 EAE Cluster Development application and the CU-89-68/TP-89-701 Approval. The Hearings Officer finds PL -15 Section 8.050 (16) (B) clearly states that an approval of a conditional use application for a Cluster Development cannot be granted unless certain findings are made. PL -15 Section 8.050 (16) (B) (1) states that a finding must be made, to approve a Cluster Development application, showing that "human activities, including all development and alternations of the natural landscape, will be limited to 35 percent of the land and 65 percent will be kept in open spaces." The Hearings Officer finds this section clearly and unequivocally provides that human activity (development and alterations of the landscape) can only occur on land not designated as open space. Restated, the Hearings Officer finds that PL -15 Section 8.050 (16) (B) (1) prohibits human activity, such as development or alterations of the landscape, on land designated as open space within a Cluster Development. PL -15 Section 8.050 (16) (8) (2) states that "uses permitted in the open space area may include the management of natural resources, trails systems or other outdoor uses that are consistent with the character of the natural landscape..." The Hearings Officer finds that even if it were reasonable to characterize the paved taxiway as a "trail system" (which the Hearings Officer finds unreasonable) the paving of a taxiway is not consistent with the natural landscape. The Hearings Officer finds PL -15 Section 8.050 File: 247 -18 -000138 -DR 18 (16) (B) (2) does not allow a paved taxiway on land designated open space in a Cluster Development. PL -15 Section 8.050 (16) (B) (7) states, in part, that "the open area shall not be subject to development unless the whole development is brought inside an urban growth boundary." The Hearings Officer finds paving a taxiway is development as that term is used PL -15 Section 8.050 (16) (B) (7). The Hearings Officer finds no evidence in the record that the EAE Cluster Development has been brought inside an urban growth boundary. The Hearings Officer finds PL -15 Section 8.050 (16) (B) (1), (2) and (7) would not allow a paved taxiway within open space land at the EAE Cluster Development. 6. PL -15 Section 1.030 (80) PL -15 Section 1.030 (80) contains the definition of open space, in the context of a Cluster Development, at the time of the CU-89-68/TP-89-701 application and approval. This section of the PL -15 was the subject of a considerable amount of testimony and comment during the hearing process. Applicant's Attorney argued that a paved taxiway meets the definitional requirements of PL -15 Section 1.030 (80). Applicant's Attorney indicated that the paved taxiway has been preserved and continued as a use at the EAE Cluster Development for "three decades." Applicant's Attorney argued that a paved taxiway is the "present use" as that phrase is used in PL -15 Section 1.030 (80). Applicant further argues that the owners of lots within the EAE Cluster Development use the paved taxiway for recreational purposes. Applicant's Attorney argues that flying a private plane is a recreational activity. Opponents argued that PL -15 Section 1.030 (80) contains a list of uses that can be considered open space uses. Opponents argued that the PL -15 Section 1.030 (80) list must be read conjunctively. The Hearings Officer finds the opposition argument that the PL -15 Section 1.030 (80) list must be read conjunctively has absolutely no merit. The Hearings Officer finds that if all of the items on the PL -15 Section 1.030 (80) list had to be satisfied then it is virtually inconceivable to imagine a use that would meet all of the definitional requirements. Opponents also argued that the PL -15 Section 1.030 (80) recreational opportunities item does not apply to paved roadways or taxiways. For analytical purposes the Hearings Officer divided DCC 1.030 (80) into two separate, but dependent, components. The first component is the language "land used for agricultural or forest uses, and any land area that would, if preserved and continued in its present use..." The second component considers whether or not "enhance recreation opportunities" can or should include flying private planes. Applicant's Attorney argued that the present use, as that phrase is used in PL -15 Section 1.030 (80), is the paved taxiway use. Applicant's Attorney stated, in the Final Argument (page 4 of 7) the following: File: 247 -18 -000138 -DR 19 "What the opponents of this application take issue with is the minor alteration made (nearly 30 years ago) to improve the surface of the taxiway. Apparently, their position is that the taxiway should consist of the land's natural state, and not pavement, and that the code's definition of 'open space' textually imposes that result. The pavement, however is the present use (not the taxiway per se) that enhances the recreational opportunity (flying an airplane) because it is the very thing that allows the airplane to taxi its way to the runway and then up into the recreational opportunities awaiting the pilot and passengers upon lift off." The Hearings Officer disagrees with the Applicant's Attorney argument that the paved taxiway is the "present" use as that term is used in PL -15 Section 1.030 (80). The Hearings Officer reminds all readers that the Declaratory Ruling process cannot be used to modify an approval; rather it may only be used to interpret provisions/language. The Hearings Officer finds that the PL -15 Section 1.030 (80) open space definition would have been applied by Hearings Officer Fitch in his review and analysis of the EAE Cluster Development proposal to the conditions existing in 1989. The CU-89- 68/TP-89-701 Approval (Findings of Fact, page 2) states the following: "The subject area is approximately 20 acres in size, and consists of four (4) tax lots. The topography is generally level and has a vegetative covering of bunch grasses, bitterbrush, juniper and pine trees. The site is undeveloped and has an old mining pit The Hearings Officer finds the term "present," as used in PL -15 Section 1.030 (80), refers to the use of the property at the time of the application by EAE for its Cluster Development approval. Had Hearings Officer Fitch been asked to determine if a paved taxiway could be approved within the open space common area tract, as part of the EAE Cluster Development application, Hearings Officer Fitch would have determined the "present" use would be described as undeveloped including a vegetative covering of bunch grasses, bitterbrush, juniper and pine trees; not as a paved taxiway. The Hearings Officer finds that if the area between the private road turnaround and Sisters Airport were left undeveloped (with a vegetative covering of bunch grasses, bitterbrush, juniper and pine trees) that common area would meet the PL -15 Section 1.030 (80) open space requirements. On the other hand, the Hearing Officer finds that paving the common area between the private road turnaround and the Sisters Airport, after the date of the CU-89-68/TP-89-701 approval, would not have "preserve[d] and continue[d]" the "present" use (undeveloped — vegetative covering of bunch grasses, bitterbrush, juniper and pine trees) and therefore would not meet the PL -15 Section 1.030 (80) open space requirements. The Hearings Officer finds a paved taxiway would not meet the applicable 1989 definition of open space because a paved taxiway would not be the preservation and continuation of the 1989 use of the common area/open space land. )J File: 247 -18 -000138 -DR 20 7. Taxiway is a recreational use Applicant's Attorney argued that use of the common area as a taxiway for private planes will "enhance recreational opportunities" as that phrase is used in PL -15 Section 1.030 (80). The Hearings Officer finds this argument has merit. The Hearings Officer finds, based upon the evidence in the record, that owners of homes/hangers in the EAE Cluster Development are also likely to be owners of private planes. The Hearings Officer finds that flying a private airplanes can be considered a recreational activity for private pilots and passengers owning homes/hangers in the EAE Cluster Development. The Hearings Officer finds, based upon the evidence in the record, that a taxiway allowing private planes to access the Sisters Airpark can satisfy the PL -15 Section 1.030 (80) listing requirement "enhance recreation opportunities". The Hearings Officer finds PL -15 Section 1.030 (80) requirement of "enhance recreation opportunities" can be satisfied by a paved taxiway or an unpaved taxiway. 8. Outside Aides to Interpretation of meaning of Open Space. Applicant's Attorney identified a number of outside aides to assist the Hearings Officer in interpreting the meaning of open space. For example, Applicant's Attorney referenced a Deschutes County approval of the Miller Tree Farm (247-14-000248 CU, 247 -14 -000249 -TP), destination resort approval criteria and Land Conservation and Development Commission open space regulations. The Hearings Officer found it unnecessary to consider any of Applicant's Attorney's outside aides. The Hearings Officer found that the CU-89-68/TP-89-701 Approval language and the relevant sections of PL -15 were determinative. 9. Conclusion As noted in the findings above, the Hearings Officer finds that the CU-89-68/TP-89-701 Approval contains language relevant to the making of a decision as to whether or not a paved taxiway violates the open space requirements. Specifically, the CU-89-68/TP-89- 701 Approval contains language prohibiting development within the open space designated lands within the EAE Cluster Development. The Hearings Officer finds paving a taxiway, on land designated as open space, is development. The Hearings Officer finds allowing a paved taxiway on land designated open space, at this time and in this Declaratory Ruling, would be considered a modification of the CU-89-681TP-89- 701 Approval; the Declaratory Ruling Process prohibits modifying decisions. The Hearings Officer finds the CU-89-68/TP-89-701 Approval language prohibits a paved taxiway on the common area/open space located between the turnaround (end of private road) and the Sisters Airport. The Hearings Officer also reviewed the definition of open space applicable to the CU- 89-68/TP-89-701 Approval application. The Hearings Officer finds that DCC 1.030 (80) definition allows for uses in the open space designation so long as the "lands [are] used for agricultural uses, and any land area that would, if preserved and continued in its File: 247 -18 -000138 -DR 21 present use... (list of specific uses including "enhance recreation opportunities"). The Hearings Officer finds that the reference to "present use" refers to the use of the land at the time of an application or initial review (in this case — 1989). Applicant's Attorney argued that the present use is the taxiway or paved taxiway. The Hearings Officer finds the present use, as of 1989, was best described by Hearings Officer Fitch as having a "vegetative covering of bunch grasses, bitterbrush, juniper and pine trees. The site is undeveloped and has an old mining pit." The Hearings Officer finds that DCC 1.030 (80) requires the land, to be considered as open space, be "preserved and continued in its present use." (emphasis added) The Hearings Officer finds the present use, that had to be "preserved and continued" in 1989, was undeveloped land and not a paved taxiway. The Hearings Officer notes that an unpaved taxiway might have been considered a "present use" as Hearings Officer Fitch did describe the EAE Cluster Development as providing airplane access from the development to the Sisters Airpark. Applicant's Attorney did not request the Hearings Officer, in this Declaratory Ruling process, to decide if an unpaved taxiway violated open space requirements; as such the Hearings Officer's observation that an unpaved taxiway is allowed in open space cannot be considered as binding. DATED this 25th day of July, 2018. /tr7-' Hearings Officer, Gregory J Frank File: 247 -18 -000138 -DR 22 cc 0 00 0 m m oma opo aj 0 a 0 0 Z z 0 IV to V t/1 tct -o ro 0 c0 ro v c 0 SISTERS, OR97759 15860 PILOT DRIVE EAGLE AIR ESTATES HOA BEND, OR 97703 550 NW FRANKLIN AVE SUITE 378 J. CHRISTIAN MALONE SCHMID MALONE BUCHANAN LLC File: 247 -18 -000138 -DR 23 Mailing Date: Wednesday, July 25, 2018 coMMUi° ETY NOTICE OF HEARINGS OFFICER'S DECISION The Deschutes County Hearings Officer has approved/denied the land use application(s) described below: FILE NUMBER: 247 -18 -000138 -DR LOCATION: The subject property is the Common Area associated with the Eagle Air Estates Subdivision and is identified on the County Assessor's Map No. 14-10-13D, as Tax Lot 99. OWNER: Eagle Air Estates Homeowners Association APPLICANT: Same SUBJECT: Declaratory Ruling to determine that a paved taxiway does not violate the "open space" requirement of the Eagle Air Estates Subdivision land use approval (CU-89-68/TP-89-701). STAFF CONTACT: Peter Russell, Senior Transportation Planner, (541) 383-6718, peter.russell@deschutes.org DOCUMENTS: Can be viewed and downloaded from: www.buildingpermits.oregon.gov and http://dial.deschutes.org APPLICABLE CRITERIA: The Hearings Officer reviewed this application for compliance against criteria contained in Chapter 22.40 in Title 22 of the Deschutes County Code (DCC), the Deschutes County Zoning Ordinance, Public Law 15 (PL -15), Land Use Approval CU-89-68/TP-89-701, as well as against the procedural requirements of Title 22 of the DCC. DECISION: The Hearings Officer finds that a taxiway violates the 65% open space requirement conditions and thus is not an allowed use. This decision becomes final twelve (12) days after the date mailed, unless appealed by a party of interest. To appeal, it is necessary to submit a Notice of Appeal, the appeal fee of $2,665.00 plus 20% of the original application fee(s), and a statement raising any issue relied upon for appeal with o. CI:) -31) :388- ;rv,dv k I tier ,c�iFl�cl File: 247 -18 -000138 -DR 24 sufficient specificity to afford the Board of County Commissioners an adequate opportunity to respond to and resolve each issue. Copies of the decision, application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at no cost. Copies can be purchased for 25 cents per page. NOTICE TO MORTGAGEE, LIEN HOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES THAT IF YOU RECEIVE THIS NOTICE, IT MUST BE PROMPTLY FORWARDED TO THE PURCHASER. 247 -18 -000138 -DR Page 2 of 2 File: 247 -18 -000138 -DR 25 S.E.1/4 SEC,33 T.14S. R.10E. W.M. 14 10 3300 DESCHUTES COUNTY File: 247 -18 -000138 -DR 14 10 3300 26 a a a a a CG a a a a a a a a cc a a a a a oc a 00 a a a K (..L K a 01 a a a (t a a a a ❑ 0 0 0 0 0000000000000000000000000000000000 CO cta W o0 W 00 00 O] WCOCOo0 COof oh o0 aW ) m oa 01 01 o� oh obi oh 00 ch W oh o� of o0 07 6A oh W m of oh 7,5 m m on m 01 <-1 N m m m 01 m CO CO m 0) n n rn m m m m in � CO m m m 01 m m m m m 01 m ) m m rc) 6 ,D .-I -) r-1 01 01 rI-I 01 r -i ti <-1 .-I e-1 H .-i 0) a-1 H N .1 .-1 01 01 c-1 r -I r-1 r-1 c -I rl r .-I ry .-i ,--i-to W W • N oh W OJ 60 Q7 oh o0 o0 oh m 00 00 W W W W oh W W W o0 W o0 W ob W 6A W o0 of of of oh of oh 04000000000000000000000000000000000000000 n 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 ›-222222222222222222222 7 7777227222722:2222 iti t> N 0 O O '-I O 0 )p N O (ril P h ▪ 611 01 11 01 Cri01 Q1 01 1) 01 01 Qt 6P 01 O1 01 co 01 01 01 0) 01 611 VI to 1n VI 1.11 V1 N 1/1 V1 Vl V1 In VI to 10 V) Vl 1.0 in in V1 GP O 03 ^ to 0) h h h h h h h h h h h h h h 0) 01 h h r1 h h h O m h h 0 a h h h h h N h h h h 01 h h h h h y 010101010101 N. 0) Ohl cc Ohl 0 a a a a a a a cc a a a a K 0) a d a a a a a a al o 0 0°000000000000000 >000000 v) O < 1/j vi V) Vi vi V) vi V) V) V1 V) V) Vj vj vi > VI v) I 4 V) v) ICI 0 vi a a W cc a 0) a w a a a a a w a w a w 0c a w a w , W 0 H W W w 111 W w w w W w W i7 W W '�, 401.1 1- Z a' F- F- h ( F- h F- F- F- I- I- F- F- F- F- d i-- F- F- F- F- H. Q N to w 0 v) V) v) 01 in V) Vi Ul v1 V) V) In ✓) v1 N n V7 v1 Vl V) VI u m v) V) V) CO 0- N V) VI V) V) V) V) V) V) V) V) V) in V) v) Vi V) v) V) V) to V1 P.O. BOX 39 0 z 2 z 01 a Z SISTERS PLANNING DEPT. 0 to CO ti W N. 1- (11 w n F= D w w w w c= Z Z a � 0 z O w 2 Z 01 0 0Hi N4 LCI ul EAGLE AIR ESTATES HOA J. CHRISTIAN MALONE SCHMID MALONE BUCHANAN LLC JENNIFER BRAGAR TOMASI SALYER MARTIN PO BOX 488 ADLER, DAVID J & EDWARDS, MARCY L 69405 DEER RIDGE RD KAY F TRUSTEES PO BOX 125 L & SHARON N TRUSTEES GARY F LUDWIG TRUST ETAL J MICHAEL ANGLER & SHARON N ET AL TRUST 69332 CAMP POLK RD MILLER, RICHARD L & KRISTIE L PO BOX 1726 VALDEZ, CHRISTAL 69200 CROOKED HORSESHOE RD VANCLEAVE, DLJANE W PO BOX 1133 JARKESY, JILL A JILL A JARKESY REV TRUST KAILUA, HI 96734 10 cn a 01 Q Y SISTERS, OR 97759 CC 0 0_ o. K a CC a a a a a a CC D_ a> 0 0 0 0 0 0 0 0 0 0 0 0 CO z< 00 I- F- I- I- F- I- i-- I- 1 F- I- F- F- 0 NN O O O O O O O O N 00 J O a m m Hi <1 1] . 0_ . 0- 2 0- 61 11 x a O. - a a m xx 0 0 0 0 0 0 0 0 0 11) V1 to v) O 0 Y Y 0 er N <. <D CO O N d' m N .1 N a N c0 CO CO016600)01010101CO Ql O) 01 m W lT 0) .,-I N in 1./1 ti ti .-▪ 1 r1 00. to • rti 0 ..-i 01 0 N <N-1 0no EAGLE AIR ESTATES HOMEOWNERS ASSOC EDMONDS, MARC R and MELLANIE PAXSCN, BRYAN C & JANE N LINDNER, BENJAMIN EMERSON, BYRON D TTEE BYRON D EMERSON TRUST SCHNELL, DANIEL R T HAMILTON, JAMES C & BARBARA A TTEES a FARIA, LINDA) TRUSTEE LINDA J FARIA LIVING TRUST SPECTOR, GARY C & WILSON, CAROL A SPECTOR, GARY C & WILSON, CAROL A FARIA, LINDA J TRUSTEE LINDAJ FARIA LIVING TRUST SISTERS, OR 97759 PO BOX 519 CARDIN,KAREN BERNHEIM TRUSTEE KAREN B CARDIN TRUST SISTERS, OR 97759 15780 TRAPPER POINT RD BUZUNIS, JO A SISTERS, OR 97759 69125 BARCLAY LN ASSON, DAVID A CHESTERFIELD, MO 63005 17704 G REYSTONE TERR EDWARDS, WILLIAM J & SHELBY J TTEES SHELBYJ EDWARDS LIVING TRUST SISTERS, OR 97759 18822 KITTYHAWK LN HOFFMAN, DAVID A & USA L SISTERS, OR 97759 15829 KF YHAWK LN HAWKSFLIGHT AIR PARK HOA INC BEND, OR 97702 400 SW BLUFF DRIVE, SUITE 240 SISTERS EAGLE AIRPORT SISTERS, OR 97759 208 EAST BLACK BUTTE ST. EDSON, MARGE File: 247 -18 -000138 -DR 27 Peter Russell From: Elizabeth A. Dickson <eadickson@dicksonhatfield.com> Sent: Monday, August 27, 2018 5:21 PM To: Peter Russell Subject: Appeal 247-18-000626-A Morgan (Eagle Air Estates DR) Attachments: Ltr to BOCC re appeal 8.27.18.docx; Exhibit A - EAE 1989 Tentative Plan.pdf; Ex B (Exhibit 11 below).pdf Peter, Attached please find Sisters Airport's submittal in the above referenced matter. Please provide to the Commissioners as noted. Thanks, in advance. Liz Dickson 400 SW Bluff Drive, Suite 240 Bend, OR 97702 0: 541.585.2229 F: 541.330.5540 eadickson_@djcksonhatfield.cor Confidentiality Notice: This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, discourse or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. Thank you. TAX ADVICE NOTICE: IRS Circular 230 requires us to advise you that, if this communication or any attachment contains any tax advice, the advice is not intended to be used, and cannot be used, for the purpose of avoiding federal tax penalties. A taxpayer may rely on professional advice to avoid federal tax penalties only if the advice is reflected in a comprehensive tax opinion that conforms to stringent requirements. Please contact us if you would like to discuss our preparation of an opinion that conforms to these IRS rules. 1 400 SW Bluff Drive, Suite 240 Bend, OR 97702 541-585-2224 August 27, 2018 Peter Russell via email only to Peter.Russell@deschutes.org Senior Transportation Planner Deschutes County Community Development Department 117 NW Lafayette Ave Bend, OR 97703 Board of County Commissioners Deschutes County 1300 NW Wall St. Bend, OR 97703 to be delivered by Mr. Russell from email transmittal RE: Appeal 247-18-000626-A Appeal of Deschutes County Hearings Officer Decision in 247 -18 -000138 -DR Appellant: Mike Morgan (Member of Eagle Air Estates HOA, filing alone) Original Applicant: Eagle Air Estates HOA Opponent of DR Request and Appeal: Sisters Runway Inc./Sisters Airport Property LLC Dear Mr. Russell and Commissioners, Our firm represents Sisters Runway Inc. and Sisters Airport Property, LLC (together "Sisters Airport" or "Airport"), by officers and managers Benny and Julie Benson ("Bensons"). They own and operate the Sisters Airport, and, in particular the runway Mr. Morgan seeks to access directly from his home in Eagle Air Estates ("EAE"). Despite his efforts, he has neither the legal right (no access) nor the land use authority (taxiway not allowed) to do so. This appeal is a part of his campaign to obtain that access. The EAE's Homeowners Association ("EAE HOA") filed a request for a Declaratory Ruling "that the paved taxiway does notviolate 'open space' requirement." Their request was denied. Deschutes County, by Hearings Officer Frank's Decision, determined that the paved taxiway at the Eagle Air Estates Cluster Development does violate open space requirement. EAE HOA, applicant in the original application filed, does not appeal the County's decision. Mr. Morgan, a member of the HOA and a party appearing below, files this appeal on his own behalf as part of his effort to obtain direct access to the runway from his home. The Bensons oppose Mr. Morgan's Appeal. We agree with the ultimate conclusion of the County decision below. We now come before the Board to defend that conclusion, and also to provide reasons to this Board why Mr. Morgan's appeal, as presented, should be denied. It is important to note that he raises a number of new rationales in this appeal, and these new issues are addressed specifically for the first time here. These arguments are not well defined at this time. They were not central to the EAE HOA question asked below. We ask that the entire Record below be incorporated into this Appeal for reference. Opposition to Mr. Morgan's Appeal Support of Deschutes County's Decision Denying Taxiway Legality Submittal by Bensons / Sisters Airport Page 2 I. APPEAL ARGUMENTS SUMMARIZED Mr. Morgan claims: 1. Hearings Officer Frank Erred in 2018 Decision. The Deschutes County denial of the requested Declaratory Ruling below did not "take adequate notice of and give effect to" materials in the Record. 2. EAE's Open Space is Close Enough. Eagle Air Estates complies with the 65% open space rule, because the paved taxiway only changes the calculation by Tess than 0.2%, and errors in the recorded Final Plat should be resolved without land use action. 3. Hearings Officer Fitch's 1989 inferences were Right. Plan and Plat are Wrong. The 1989 Approval included references an "airpark subdivision" and connection of the road to the airstrip. (He implies here that the inferences in the approval narrative should supersede the Tentative Plan approved with that narrative, and ultimately the Final Plat.) 4. County Staff Erred in 1990 by recording the submitted Final Plat. The Final Plat recorded in 1990 including the error of no paved taxiway was County staffs' fault. 5. County Staff Erred in 2018 Open Space Calculation. Current staff errors of the open space calculation caused the appealed denial of the Declaratory Ruling. Mr. Morgan then concludes that the Final Plat mistakes should be corrected by an Amended Plat he promises to submit, and when corrected, will show that the 65% open space requirement is met, and the Eagle Air Estates cluster development is thus compliant with County code and the 1989 approval. II. APPLICABLE BACKGROUND 1. Eagle Air Estates never received required land use approval to build the taxiway. Eagle Air Estates was originally proposed to the County in 1989. The original application included a paved taxiway, but it was intentionally removed in the application process. Findings and Decision CU-89-68/TP-89-701 approved the cluster development with a 65% open space requirement. The approved Tentative Plan showed no taxiway. The Final Plat submitted and approved also did not include a taxiway connecting the development to the runway. See Exhibit A, attached and incorporated by this reference, as are all referenced Exhibits. All land not taken up by lots or roadways was labeled as common area. This included the land which is the current location of the paved taxiway. Opposition to Mr. Morgan's Appeal Support of Deschutes County's Decision Denying Taxiway Legality Submittal by Bensons / Sisters Airport Page 3 Eagle Air Estates has not filed any applications to modify the initial approval. The 2018 Hearings Officer Decision concluded that the paved taxiway improvement is built over the labeled open space, and so violates the open space requirements. 2. Eagle Air Estates built the taxiway without other necessary reviewLpermits= or rights. Aerial photos submitted have documented that the paved taxiway was constructed in segments over time, and was not completed for a decade or more after the 1989 approval. As noted above, it was not depicted as required in the Tentative Plan or the Final Plat, so was not legally approved by Deschutes County to be built. The taxiway did not benefit from permits or approval from any other necessary private parties or government agencies either. These include the Sisters Airport, Oregon Department of Aviation ("ODA"), and the Federal Aviation Administration ("FAA"). Sisters Airport finds the serpentine shaped taxiway violates line of sight safety requirements for approach and is located at the end of the runway in a low visibility area for approaching aircraft. ODA and FAA have inspected the design of the taxiway and have determined it does not comply with applicable safety regulations. If EAE had applied for the taxiway as designed, it likely would not have been approved. The filing of the Declaratory Ruling application by the Homeowners Association was an attempt to retroactively receive approval for the taxiway, ignoring the open space requirement of the cluster development as well as other laws and regulations applicable to for a taxiway. This appeal by Mr. Morgan is part of a continued attempt to allow the HOA to keep a taxiway that was built in direct defiance of Deschutes County's land use authority. III. PROCEDURAL STATUS OF APPEAL 1. This Declaratory Ruling on appeal is not allowed, because it would be a substitute for amendment to code. A Declaratory Ruling is not to be used to evade process. This appeal asks for the definition of "open space" to be changed, a term already defined and applied repeatedly over some 30 years since this matter came under consideration as an application in 1989. This application is an attempt to circumvent applicable law. It is not allowed as part of the Declaratory Ruling process, and the same rule applies in a de novo appeal. 2. This Declaratory Ruling on appeal is not allowed, because it would be a substitute for or modification of an approval. A Declaratory Ruling is not to be used to evade process. This appeal asks for the original 1989 approval to be changed, by modifying the conditions of approval (specifically #4), as well as the Tentative Plan and the Final Plat. The precise code provisions and facts of these points are detailed together below. Opposition to Mr. Morgan's Appeal Support of Deschutes County's Decision Denying Taxiway Legality Submittal by Bensons / Sisters Airport Page 4 The Notice of Violation and Proposed Civil Penalty is attached as originally submitted below as Applicant's Exhibit 10, here submitted as Exhibit B. That Notice, No. 247 -16 -000375 -CE, described the violation as follows: 1. DCC 18.60.020 - Paved runway runout constructed in RR 10 Zone without land use approval. 2. DCC 13.36.010/13.36.012/18.144.040 - Nuisance - Violation of Open Space Requirement (Runout Construction) specified in CU-89-68/TP-89-701. 3. DCC 13.36.010/13.36.012/DCC 18.144.040 - Nuisance - Violation of Open Space Requirement (Taxiway Construction) specified in CU-89-68/TP-89-701. Maximum penalty for each violation was set at $2,000. Violation #2 was cured by removal of the runout after the November 28, 2017 Notice was mailed. A. Declaratory Ruling is only available to interpret a provision in doubt or dispute. DCC 22.30.010.A.1 and 2 specify that this process is for "doubt or a dispute as to its meaning or application." Appellant alleges that the County's meaning of "open space" is in question. All prior interpretations of the term are consistent as provided by the County, whether in the 2006 Hawks Flight decision, the County Code, or the County Comprehensive Plan. In all instances, it is unpaved. There is no doubt or dispute. Appellant merely wishes it were not so, and asks this Hearings Officer to change all prior interpretations. B. Declaratory Ruling is only available to resolve and determine the particular rights and obligations of particular parties to the controversy. DCC 22.30.101.B's language requires a clear answer to the question posed. It does not allow a partial answer. It expressly states that it "shall not be used to grant an advisory opinion." The Notice of Violation states that the paved runway runout is a violation for two reasons: 1). Construction in the RR 10 zone without land use approval; and 2). Violation of the Open Space requirement. Applicant EAE HOA chose to pose a very narrow question in their application for a Declaratory Ruling, and that narrow question does not ask for an answer to the first violation: the RR10 construction without land use approval. Appellant Morgan cannot change the question to be asked by appealing the Declaratory Ruling below. He can only ask that that precise question be reconsidered by this Board on de novo appeal. By asking only whether the Open Space requirement is violated by the paved taxiway, Applicant/Appellant is only asking part of the pending question. If a decision is reached on the question posed, the Declaratory Ruling will not resolve and determine the particular rights and obligations of the parties. The Declaratory Ruling, as requested, does not meet the County's Code requirement for this unusual land use action. It may be denied without reaching the merits of the question posed. Opposition to Mr. Morgan's Appeal Support of Deschutes County's Decision Denying Taxiway Legality Submittal by Bensons / Sisters Airport Page 5 C. Declaratory Ruling is not available as a substitute for seeking an amendment of general applicability to a legislative enactment, nor shall it be used as a modification of an approval. Deschutes County's Code governing Declaratory Rulings goes on to expressly prohibit use of this tool to evade the amendment process or the modification process. Here, Appellant is asking Deschutes County to change the way it interprets the meaning of "Open Space." All prior cited interpretations have been for unpaved surfaces. This application, when filed in 1989, represented expressly that the proposal would include Common Area which is equated to Open Space in the subject application, and the Common Area would remain undeveloped. Appellant is now asking the County to change its meaning in the 1989 approval. Amendment is not allowed by Declaratory Ruling. This application may be denied on the grounds that it is asking the County to do something it cannot legally do. D. The Declaratory Ruling process, if requiring Interpretation, shall consider applicable provisions of the comprehensive plan and the purpose and intent of the ordinance as applied to the particular section in question. Section 22.40.050, Interpretation, of the Declaratory Ruling Code, uses the mandatory "shall" to require that the comprehensive plan and the contextual meaning of the relevant ordinance be considered in the interpretive process. It is Appellant's burden to satisfy this requirement. Appellant has offered neither the comprehensive plan provisions nor the purpose and intent of the relevant ordinances in asking the County to make the interpretation of "Open Space" it requests. Appellant's failure to satisfy this requirement means that Appellant has not met its burden to so prove. The Appeal to change the Declaratory Ruling as made below may be denied on these grounds. These four arguments stand as separate legal grounds for denial of the appeal as posed. Each of the four may independently yield denial of the instant appeal's request. We ask that the County deny the appeal for failure to satisfy the County's Code regarding Declaratory Rulings. If the County determines that it wishes to reach the merits of the appeal, we turn to the question posed by Appellant: IV. Legal Issue: Does EAE's Paved Taxiway Violate its 65% Open Space Re_ uq_.,irement? The 1989 approval of Eagle Air Estates found that the 65% Open Space was just met as depicted in the Tentative Plan. That Plan was incorporated by reference into the conditional approval. Appellant Mr. Morgan now tries to twist that approval to justify the illegal acts that built the paved taxiway. Sisters Airport opposes the interpretation advocated by Appellant for the following reasons: • "Open Space" is clearly defined by Deschutes County. • EAE's Paved Taxiway does not satisfy Deschutes County's "Open Space" requirement. Opposition to Mr. Morgan's Appeal Support of Deschutes County's Decision Denying Taxiway Legality Submittal by Bensons / Sisters Airport Page 6 A. Deschutes County defines "Open Space" by land use decisions, by code, and by its Comprehensive Plan to exclude paved areas 1. The EAE Land Use Approval CU 89-68/TP-89-701 Defines "Open Space" The land use decision incorporates both the Code and the Comp Plan into its decisions. Those citations will be discussed below. After applying those provisions to the facts of the 1989 application, the conditions of approval required additional detail to be incorporated into the Final Plat. A copy of that plat, in full size and also in 11 x 17 format, are incorporated into this Record and may be found as Opponent's Exhibit E in the Record below, as submitted on May 29, 2018. These enlarged submittals of the Final Plat show clearly that the taxiway was not included in the final submittal. The condition of approval #4 expressly required that the Final Plat comply with Ordinance 81-043, in effect at the time. This improvement, if planned, partially built, or completely constructed, had to be included in the Final Plat in order to be part of the approved subdivision. No depiction of the taxiway is included. Applicant below has claimed that the taxiway was partly built at the time of final plat. It is unclear what legal benefit this would derive. It is not in the Sisters Airport's interests to make Applicant's arguments for them. Regardless, photographic evidence that is readable, dated, and professionally sourced shows otherwise. Please see Exhibit F, attached to Opponent's May 29, 2018 submittal below. These aerial photos show that between 1940 and 2005, significant changes occurred. In 1991 (Page 3), a dark line appears to extend from the cul de sac in the EAE subdivision to the edge of trees. It does not connect to the runway in this photo. It is not a "taxiway" by all appearances. By 1995 (Page 4), a darker line appears to extend off the Airport runway, then lead northwest, but there is no apparent connection to the cul de sac. Not until 2005 (Page 5) is the serpentine taxiway visible in these photos. The land use approval authorizing the construction of Eagle Air Estates contains no taxiway. The Tentative Plan and Final Plat contain no taxiway. Not until 2005 is some visual indication of the taxiway discernable from aerial photos available. Eagle Air Estates was required to request a modification of the 1989 approval. They did not do so. Apparently, Appellant is hoping to do so as part of the Declaratory Ruling Appeal process now, which is expressly not allowed. Open Space was required to be located on the property where the taxiway was later located. The paved taxiway violates the application, the approval, the conditions, and the final plat as filed. It is not the required, and promised, "Open Space." 1. The Deschutes County Code Applicable in 1989 Defines "Open Space" The 1989 DCC relied on PL -15, as modified. Particular to this application, the County applied 8.050(16). B.(1) limited development to 30%, not including improved areas. It also required that the Final Plat verify uses in writing. B.(2) noted that the open space should remain natural and not put toward any development. Appellant has offered no reasonable alternative wording, or justification of same, to this definition on which the 1989 conditional approval relied. Opposition to Mr. Morgan's Appeal Support of Deschutes County's Decision Denying Taxiway Legality Submittal by Bensons / Sisters Airport Page 7 2. The 1989 Deschutes County Comprehensive Plan Defines "Open Space." The 1989 Comp Plan provisions regarding Agricultural uses, specifically cluster development, required 30 percent maximum development, and 70 percent open space as noted in the Staff Report. It relied upon preservation of the "undeveloped" nature of the land in the application as noted. The Rural Development code specifically required that the application "preserve and enhance Open Space, rural character, scenic values, and natural resources." In exchange, it allowed minimum 65 percent open space. It particularly noted that such space would not be subject to development, and must observe Policies 3,4, & 8, all policies focused on conservation, habitat preservation and preservation of natural values. Applicant has cited to no authorities that this paved surface has been, or should be, allowed. Applicant does argue that because "open space" can include recreational use, and flying is recreational, a surface used as a taxiway is "open space." This argument lacks credibility and support. Further, Applicant claims that the EAE planes are only used recreationally. Applicant's own evidence placed in the Record as Applicant's Exhibit 8, letter from Mr. Morgan, expressly notes on Page 8 that pilots do use the facilities for business, which is not recreation. "Open Space" is as it is defined explicitly in the Hawks Flight 2006 approval cited by Staff. It is unpaved. The County's interpretation of this term has not changed from its approval of the Eagle Air Estates Application, or from its Comp Plan. Open Space is, among other things, unpaved. The Morgan Appeal asks the County to make new law, a new interpretation, of "Open Space," so Eagle Air Estates can avoid the Notice of Code Violation. We ask the County to follow 30 years of its own precedents, enforce applicable law, and deny the instant appeal. V. Response to Miscellaneous Additional Arguments in Morgan Appeal. Appellant Mr. Morgan claims: 1. EAE's Open Space is Close Enough. Mr. Morgan asserts that Eagle Air Estates actually complies with the 65% open space rule, because the paved taxiway only changes the calculation by less than 0.2%, and errors in the recorded Final Plat should be resolved without land use action. His "close enough" argument is without legal foundation. There is no provision in Deschutes County Code or Oregon Revised Statutes known to Opponent Bensons that allows the calculation to be compromised if it's non- compliant. Further, his argument is without proof. Measurements taken in the original plat showed that the 65% requirement was just met, and that was before the taxiway was inserted into the Open Space without approval. Deschutes County staff considered this ratio as part of the Code Enforcement Violation Notice issued as well. Opposition to Mr. Morgan's Appeal Support of Deschutes County's Decision Denying Taxiway Legality Submittal by Bensons / Sisters Airport Page 8 As presented, Mr. Morgan's argument is without foundation or merit, and is properly dismissed as non -persuasive. 2. Hearings Officer Fitch's 1989 inferences were Right. Plan and Plat are Wrong. This argument claims that the references made in the 1989 decision approving Eagle Air Estates were right when they discussed the connectivity of the aviation community, and wrong when they showed there was no taxiway planned in the Tentative Plan or the Final Plat. It is reasonable to conclude that the decision's references to connectivity were made mistakenly by the HO based on the original application, which was amended to delete the taxiway. Regardless of the cause, the original application's Plan and Plat showed the taxiway area as Open Space and counted that area toward the 65% requirement. Mr. Morgan's implication that the narrative should supersede the Plan and Plat serves his purposes, but lacks merit. 3. County Staff Erred in 1990 by recording the submitted Final Plat. Mr. Morgan argues that the Final Plat recorded in 1990 including the error of no paved taxiway was County staffs' fault. This claim implies that county planners and surveyors and engineers carry the burden of going on each site and comparing each detail of a Final Plat to "on ground" improvements prior to accepting such document for recording and inclusion in County Records. Opponent Bensons are unaware of any such obligation by the County. Even if, for sake of argument, such obligation existed, it still would not have helped Mr. Morgan and Eagle Air Estates here. The Final Plat matched the "on ground" improvements, because the taxiway did not exist in 1990. It has been proven to have been built long after the 1990 approval by aerial photos referenced above, referencing exhibits already in the Record. Respectfully, County staff did not err in 1990 in recording the submitted Final Plat. If errors were made, they were likely made by the original developer who applied for a development without a direct connection to the Sisters Airport runway, had no agreement with the Airport to connect, but offered the properties as if the access was established. Sisters Airport appreciates any support for the Airport's operation. The Bensons have reached out to EAE members repeatedly to establish a runway access that is safe and compliant with state and federal regulations. To date, Mr. Morgan and some members of the HOA have expressly refused to consider the safer mid -runway alternatives, insisting instead that what they've illegally constructed can be used, regardless of the laws it broke to build it. 4. County Staff Erred in 2018 Open Space Calculation. Mr. Morgan's Appeal says that current staff errors of the Open Space calculation caused the denial of the Declaratory Ruling, forcing him to appeal. Staff did make various calculations as part of the County's effort to verify claims made, and also to validate the Code Enforcement Opposition to Mr. Morgan's Appeal Support of Deschutes County's Decision Denying Taxiway Legality Submittal by Bensons / Sisters Airport Page 9 Violation Notice. The calculations are able to be rectified, however, by careful reading of staff's remarks accompanying such calculations. They are not the cause of the Declaratory Ruling made against EAE's and Morgan's hopes for a legal, retroactively -approved taxiway. Mr. Russell also provided a list of threshold questions in an attempt to bridge the gap between what EAE originally asked for in the Declaratory Ruling application and what they would have needed to resolve to address the Notice of Code Violation. (In particular, the RR -10 zoning does not allow a taxiway.) These suggestions were an attempt by staff to help clarify issues to be resolved before a true solution could be found. The Hearings Officer, however, chose to look narrowly at only the statement presented, and answered narrowly as well. Mr. Morgan may find fault with that approach, but it is legally justified. EAE, through counsel, posed that question. If Mr. Morgan wishes to pose a different question, he needs to start over and file a new Declaratory Ruling application. This question, whether the paved taxiway complies with the EAE Open Space requirement as approved in 1989, has been asked and answered. That question is now the subject of this appeal, and no other. 5. An Amended Plat Solves the Code Enforcement Violation. Mr. Morgan then concludes that the Final Plat mistakes should be corrected by an Amended Plat he promises to submit, and when corrected, will show that the 65% open space requirement is met, and the Eagle Air Estates cluster development is thus compliant with County Code and the 1989 approval. Section III above cites specifically to the limitations of a Declaratory Ruling process. Deschutes County Code and Oregon Revised Statutes expressly limit the scope of this process. The County's Code may not be amended, and the 1989 Approval may not be modified here. This appeal, by allowing an amended plat, asks the Board to do both. The Code defines Open Space. A paved taxiway is not included in that definition, and no interpretation of this Code has been shown to stretch it to that length. The 1989 Approval shows a development without a taxiway. To allow amendment of that plat is to modify the decision, which is not allowed as a Declaratory Ruling. A Declaratory Ruling cannot amend or make modifications to land use approvals. The EAE application asked the County and now this Board to make a new law, a new interpretation, of "Open Space" so they can avoid the Notice of Code Violation. We respectfully ask the Board to enforce applicable law and deny the instant appeal. Thank you in advance, for your consideration of this letter. Sincerely, /s/ Elizabeth A. Dickson EAD/cmp Cc: Client Encs. Exhibit A and B Y1 Exhibit Page __L _ of J November 28, 2017 Community Development Department PO Box 8005, Bend, OR 97708-6005 117 NW Lafayette Avenue, Bend, OR 97703 TEL (541) 388.8575 wwwtafldltll0.st. d di CERTIFIED LETTER EAGLE AIR ESTATES HOA C/O BRYAN PAXSON — REGISTERED AGENT 15880 PILOT DR SISTERS, OR 97759 RE: Deschutes County Code Violation 247 -16.000375 -CE Map/Tax Lot 1410330000099 Dear Mr. Paxson: Enclosed Is a Notice of Violation and Proposed Civil Penalty related to an unresolved code enforcement investigation on the subject property. This noticed is delivered to you as the registered agent for Eagle Air Estates Homeowners Association, consistent with Oregon Secretary of State Records, Respectfully, schutesCounty Code Enforcement Technician cc. Todd Newman - President Dean Hodges — Secretary Exhibit 10 1 of 4 Notice No.1 t —0 22 7 Department File No. 247- JA -000 "N7 C NOTICE OF VIOLATION AND PROPOSED CIVIL PENALTY Before the Hearings Officer of Deschutes County by Authority of DCC Chapter 1.17 Date of Service: ❑ personal Service Service by Mail 0 Posting Date delivered: Date mailed: Date posted: Subject Name & Address Name: eA61-F A111._ E6Titirs //a+ DOB: M / F ID: LORI FIral M.I. Mailing Address: I 5-86 pit v -r JI? City, State, Zip: }5ISfi , �%p " 116 Phone Date Violation(s) Occurred: On the''i day of i ' i1'iE4 z. , 20 /7 Continuing Violation? • Yes / No The person cited committed, or allowed to be committed, the violations(s) of law described below, at the following address: l t 1 i1 City, State, Zip:_ -0.2^ -5 Address of violation(s): Property, Description: Township Law(e) Violated: ❑ DCC Title 13, Chapter 13.08. Onsite Sewage Disposal and Septic Tanks O DCC Title 13, Chapter 13,36. Nuisances and Abatement O C Title 15, Buildings and Construction irk' OCC Title 18, County Zoning ❑ Other; DCC Title (specify) Description of violation (Include relevant County code provision and/or State statute) and Maximum Civil Penalty: 1. ' C7, 1..o .... V - ! ,t f ( AkAirr sails r)C:T /)/A AO. -- (i U 7 I- ` t _ t,t(,A-1_. Maximum Civil P natty $ I t Range 10 Section A Tax Lot(s) 2 0 )11000 n Chill Penalty $_ 3. ,..4...11:j,) 'ty,1 !: 6� � Maximum Civil Penalty $ ;2/ I, the undersigned, tieroby cyitify under penal les provided by ORS 153,990 that I have reasonable grounds to believe that the above pers l' (•orrilitAd or allowed to be committed the nbovo described offense(s). Notice issued by: .�)t� (- J l CIuflA) 011-A, Date:.__ /� Notice served by (if plicahie): Date: Date: YOU HAVE THE RIGHT TO A HEARING ARRING A PFARAN if rrA'1r ?EIK.gom ty) Oso! (P0 3Q , ,9DIg Location: Barnes/Sawyer Room Deschutes Service Center 1300 NW Wall St. Bend, OR 97703 For each Continuing Violation a civil penalty - up to the Maximum Civil Penalty identified above - may be Imposed for each day beyond the "Date Violation(s) Occurred" that the violation continues to exist. Exhibit 10 2 of 4 INSTRUCTIONS: PLEASE READ CAREFULLY! You have been Issued a Notice of Violation and Proposed Civil Penalty because of the vtoletlon(s) of law stated on the front of this form. You MUST exercise ONE of the following three Appearance Options. H you fall to exercise one of these three options (or request to reschedule the hearing) within the time specified, you will waive your right to contest the Notice of Violation and the Hearing Officer will Issue an Order (a) holding you responsible for the violallon(s), (b) u ri •u o :a t a 'a CMPo a t ow on t to :•t) Vloletlo vil Pe a It fora h viral4lton a r+ r uiri r: ou t+ rn u t a t ,r e v. tin 1 rte La conte(1 au h R r = u = E l conditions trs the Herat toile A hoar chooses to t Appearance Options: 1. Enter a plea of "guilty" by written appearance. Sign the Statement of Understanding below and mail this form, together with a check or money order payable to Deschutes County, to the Remittance Address below. Your plea must be received by Deschutes County at least 1 business day prior to the hearing. Note: You may be subject to additional civil penalties, court actions, or other legal remedies if the violation(s) which are the subject of this notice are not also corrected. 2, Personally appear at the hearing If you choose this option you must personally appear on the date and at the time scheduled for the hearing and enter a plea. If you plead "not guilty" when you appear, you should be prepared to present your case to the Hearings Officer at that time. This means that when you appear, you will need to have with you any evidence you want the Hearings Officer to consider and arty witnesses you want to have testily. It you choose, you may retain a private attorney to represent you at hearing. If you are going to have an attorney represent you, you must notify Deschutes County of this fact in writing at the Correspondence Address below no later than 10 days before the hearing. 3. Enter a plea of not guilty by written statement In lieu of appearance. As an alternative to personally appearing, you may submit a written statement in lieu of appearance. This statement must be signed and forwarded to Deschutes County at the correspondence address below, Written statements must he received by the County a least one (1) business day prior to the hearing. Please Include a copy of this notice with your statement, Under this option, a hearing will be held at which the County will present evidence and the Hearings Officer will consider your written statement in lieu of your live testimony Default Warning: If you fall to exercise one of the three Appearance Options Identified above, the Hearings Officer can and will impose judgment against you. Judgment will Include Imposition of the Maximum Civil Penalty and an order requiring you to Immediately correct the violation(s). ORDERS AND DECISIONS OF THE HEARINGS OFFICER WILL 13E MAILED TO YOU WITHIN FOURTEEN (14) DAYS OF THEIR ISSUANCE. Failure of Compliance Warning: Failure to pay a civil penalty imposed by a Hearings Officer or correct a violation after having been ordered or required to do eo le a separate violation and is subject to additional civil penalties, court actions, liens, garnishments, interest charges and other involuntary collection remedies. HOW TO REQUEST RESCHEDULING OF HEARING: Requests to reschedule a hearing must be in writing and delivered to Deschutes County by fax or mall, at the Correspondence Address below. Please attach a copy of the Notice of Violation (the other side of this form) with your request. Requests must he made at least two (2) business days prior to the hearing date. You will be contacted to reschedule your hearing and subsequently notified by mail in confirmation. Signature: Date: STATEMENT OF UNDERSTANDING I, the undersigned, do hereby acknowledge that I understand the following: fJ f have read and understand the Notice of Violation and Proposed Civil Penalty and the above Instructions. ❑ My payment of the fine is an admission of the existence of the violation alleged In this notice. ❑ My payment of the fine amount does not relieve me of my responsibility to correct the violation, and to comply with all applicable laws. O Additional notices of violation may be issued if I fail to correct the violation, or violate other applicable laws. Signature: _ _ Date: Address: City, State, Zip: Remittance Address: Deschutes County Treasurer 11300 NW Wall Street, Bend, OR 97703 Correspondence Address: Deschutes County Community Development Department Mailing: PO Box 6005, Bend, OR 97708-6005 Physical: 117 NW Lafayette Ave, Bend, OR 97703 Phone: (541) 388-65751 Fax: (541) 385-1764 If you have questions about the violations identified on the front of thls form, contact Deschutes County Code Enforcement at (541) 385.1707'. Exhibit 10 3of4 CERTIFICATE OF SERVICE I hereby certify that 1 caused to be served copy of a Notice of Violation and Proposed Civil Penalty on the following listed party by certified I.J.S. First Class Mail, postage prepaid, return receipt requested: EAGLE AIR ESTATES HOA Cf0 BRYAN PAXSON — REGISTERED AGENT 15860 PILOT DR SISTERS, OR 97759 DATED: November 28, 2017 Exhibit 10 4 of 4 De Novo Appeal of Decision in 247 -18 -000138 -DR History The Deschutes County development known as Eagle Air Estates (EAE) was approved in 1989. The hearing officer's Findings and Decision in CU-89-68/TP-89-701 (Ex. A) was based on the application which included a tentative plan (Image A). The final plat was approved by the county and recorded in 1990 (Image 8). The decision in CU-89-68/TP-89-701 (Ex. A); Page 2, Paragraph 3, under FINDINGS OF FACT: "The applicant has proposed a 12 lot Cluster Development called Eagle Air Estates. Access to the Tots would be off of a private road leading from Camp Polk Road. The private road, as proposed, would also connect to the northern end of the Sisters Airstrip. This 12 lot development is designed to be an airpark subdivision, where lot owners could taxi their personal planes out onto the private road and then to the airstrip." 2018 DR Decision 247 -18 -000138 -DR decision (Ex. B) Page 21: "The hearings officer finds the CU 89-68/TP-89-701 approval language prohibits a paved taxiway on the common area/open space located between the turnaround (end of private road) and the Sisters Airport." This decision assumes common area and open space are the same. They are not. This will become veru clear on appeal. The 2018 DR decision must be reversed because it is not consistent with the 1989 approval of EAE This appeal is based on the record in File 247 -18 -000138 -DR and two legal arguments: 1) Equitable Estopple Nothing has changed in EAE regarding"open space" since the development was approved almost three decades ago; therefore, Deschutes County is now estopped from arguing EAE HOA Inc. is in violation of the 65% open space rule. In other words; if EAE, as approved by the county in 1989, met the 65% rule and nothing relevant to the 65% rule has changed then EAE still meets that rule. The decision in CU-89-68/TP-89-701 (Ex. A) approved a road upon which lot owners could taxi personal aircraft onto the northern end of the Sisters airport runway. This specifically allowed road was constructed in 1991 by the EAE developer. There was no prohibition whatsoever on the materials that could be used in the construction of the EAE road. The words "asphalt" or "paved" do not appear in the 1989 Findings and Decision so there can be no valid interpretation that would prohibit a paved road in EAE that extends to the northern end of the Sisters airstrip. The taxiway portion of the paved road, from the turnaround to the airstrip, was not shown on the tentative plan or the recorded plat to insure it would not be confused with the public road right- of-way. The public road right-of-way ends at the turnaround. Vehicles are not allowed on the taxiway. The final plat was approved by county staff and recorded in 1990 (Image B). The following code defines the actions required of county staff before the final plat could be approved and recorded. DCC 17.24.100 8: The county must verify the plat is sufficiently correct. DCC 17.24.105 B: The Planning Director must determine all conditions of approval have been satisfied. DCC 17.24.110 A: The Planning Director and Road Department must determine the plat conforms with the approved tentative plan and DCC Title 17. 2) ORS Ch 42 controls the interpretation of documents / writings County code, the 1989 approval of the EAE development, tentative plan, and recorded plat of EAE must be interpreted per ORS Ch 42. ORS 42.230 "... the judge is simply to ascertain and declare what is... contained therein, not to insert what has been omitted, or to omit what has been inserted..." See 2016 Senior Planner Peter Russell's letter to EAE President Byron Paxson (Ex. C); Page 2: 'Eagle Air Estates is a cluster subdivision, which means the land received a density bonus to allow for additional residences, but dedicated open space is required to offset the increased number of homes. On page 4 of the findings and decision for CU-89-68/TP-89-701 (Ex. A), the decision states: "Cluster and planned developments shall maintain a minimum of 65% of the land in open space, timber, or agricultural uses compatible with the surrounding area and the development area. The open space of the development may be platted as a separate parcel or in common ownership of some or all of the clustered units; however, the open space shall not be subject to development unless the whole development is brought inside an urban growth boundary..."' (emphasis added) "shall maintain a minimum of 65%" means things can change over time in open space but at any time there must be a minimum of 65% open space. "May" means open space may, or may not, be platted. "...however, the open space shall not be subject to "development" unless the whole development is brought inside an urban growth boundary..." means the word development, as used here, has the meaning used in the context of urban growth boundary; that is, a higher density of buildable Tots. It does not mean open space can not be disturbed, altered, or some of it paved. The 1989 approval document (Ex. A) Page 6 at B(2) states: "The open space areas are proposed to remain natural and not put to any development." This is a more restrictive definition of open space than in DCC 18.04.030. There is nothing in the 1989 approval of the EAE development (Ex. A), or Peter Russell's 2016 letter (Ex. C), defining where open space can, or can not, be located within EAE. There is no code cited in the DR record that addresses this issue. Therefore, given no code restriction, open space can be in the common area, road right of way, 25' access easement, and even the 12 building lots. The recorded EAE plat (Image B) has an area summary totaling 60.37 acres which Peter Russell reproduces in his 2016 letter (Ex. C): Common area: 39.25 acres (65%) Road right of way: 3.40 acres (5.6%) 25' access easement: 0.60 acres (1%) Lots: 17.12 acres (28.4%) Peter incorrectly states the following regarding open space in his 2016 letter (Ex. C): "As can be seen, Eagle Air Estates is right at the 65% requirement and cannot lose any square footage, which would violate the subdivision's land use approval (Ex. A). (The County's DIAL system incorrectly displays the private roads within Eagle Air Estates as common area, but the approved materials at Plat No. 701 (Image B) label the common area, which does not include the roads or easement.)" Peter confuses the identified common area with open space. The two are not the same. Common area is all land owned by EAE HOA Inc. within the development. Open space is defined at DCC 18.04.030 and by the 1989 decision in CU-89-68/TP-89-701 (Ex. A). The 2016 letter from Peter Russell is the basis for the enforcement action against EAE HOA Inc. alleging a violation of the 65% open space rule. The enforcement action by Deschutes County caused EAE to file an application for a DR resulting in the decision in 247 -18 -000138 -DR (Ex. B) that this appeal seeks to reverse. Everything on the recorded plat, except the 12 buildable lots, is owned by EAE HOA Inc. The DIAL screen shot (Image C) of land owned by EAE is correct and identifies ALL common area in the EAE development. The road right-of-way and 25' access easement are within the EAE common area. EAE HOA Inc. controls all construction in the development whether it's in the common area or the buildable lots pursuant to the restrictions in the EAE CC&R's which were approved by county staff in 1991. Therefore, EAE HOA Inc. has complete control of compliance with the 65% open space rule. DCC 18.04.030: "Setback" means an open space on a lot which is unobstructed from the ground upward except as otherwise provided in DCC Title 18". The EAE CC&R's require 50' setbacks fronting the road and 25' setbacks on lot lines that back up to the runway property. These open space setbacks are shown on the colorized plat (Image D) and total 4.08 acres of open space (Table A). There are 5' setbacks on all other lot lines but they are not shown or counted. All setback areas are natural terrain except for driveways. Covering drain fields is prohibited and is therefore additional open space but it is not shown or counted. EAE has a 50' wide road right-of-way but the EAE developer only constructed a 25' wide paved road so there is at least 1.5 acres of undisturbed natural area open space in the road right-of-way. The 25' access easement has a 10' wide paved road so there is at least 0.3 acres of undisturbed natural area open space in the 25' access easement. This alone offsets the 0.2 acre taxiway. Adding these additional open spaces to that cited by Peter Russell (39.25 acres) means the current EAE open space total is at least 39.25 + 4.08 + 1.5 + 0.30 = 45.13 acres. Subtracting the 0.2 acre taxiway (maximum) from the turnaround to the runway yields, as of this date, a conservative total of 44.93 acres of undisturbed natural open space in EAE. This, divided by 60.37, means the EAE development currently has at least 74.4% open space. This is the absolute minimum percentage of open space in EAE as of this date and does not include the 5' setbacks, drain fields, or other open space on residential lots. EAE is, and has always been, in complete compliance with the 65% open space rule. Going forward, the county should create in DCC 18.04.030 a definition of common area and open space specific to cluster and planned unit developments. This would eliminate a lot of confusion. This De Novo appeal of 247 -18 -000138 -DR submitted and argued September 5, 2018 by: hael L. Morgan APPLICANT; ^'CSS... tZ- a(..P-S9-'i.t.:1 Vern end Seedy Goodsell 2951Y 1 -nth Plena 4i, Kent, r Y3 application for e CoFZ• it i:s3-ir'a.si. Use Permit t on.. a Cluster Dsy.tsfyi..op3v'Lut. an£ Z3.t3 Type Tipp;.;#c,.cii.�ion tnr 4 e On 3 ��.and �'ialon .` nr th.�n i."„ t in ihre app .:.ant .,..F::$: establish that he CS:i3di: t.ioneai is meets tnn renitemeste Sent.3e,`ne 'Zoning OE:.Ks3.Xian es,and : f"ii3,Ye33r1ee 8.3'^x.? p the Deschutes County # i inion £, r_di erten The subject prep%?:2";,j% is i,t>£:ited-directly ?or.ti of th Sisters ;i; ,rve t end Sant Of Camp Polk Roc in aSiatuni,t ii f3C�3 i,£3 t3.£3rt.nar vzF:>ei"i.hnd an Tax %dts 2 E2:t iFiFu; M.1 and MC, in .TowsnhiMti 14 Sod th, : :c"3F}ge lh East, 8ru"C.:t,?on , The nub r' of area a is zoned R.R..1;;t:; 1•�;i'£ al R�3`3TY.t'nntV is 1.4 And 3'n;3.5 ar Ki,F':tA`3nrt Height Wi) 1.-oiri i 1q Zti?'t;p, ztn4a 3{ den .ign ; :e£3 as P4xport end Adriuiture by the bencher :s:� County Coprebonsiye p: A f, The hearing wan held ve:A 1B, i9#) ' •• a:3c3 continued `.:7 €`a z:ii35 `G le 198.9, at. the D£3i3t'.; 3.t34;es COtAety ::: ffi i.:A,S. tra io:c The following ezhih ts3 Make up the record in than :watts A. B. 6. ar a. lioetiou Pr el ixirsar_y Plan 'vin:it iai3 ate of tv4eLiOs f`,. Z_iv`nai3t .cs letter dated 1aly "tate- of O.k:ec,on 'i4?'Yon f-ts:..{.t^u. `{.S?a3:'7.#J<2 10;t: c3.n,'tC'i"1 33Ay. 14, .: t•9 K 'iKio."5?C C. �.1a dated d'u .Cr .9 3 James ,s? wiu. letter dated July 14 :199,° drIelgnud letter dated ./`sue 7, :0).'/. i':.NDIOCS i):1-C1<.T`..:t> file Not,. C::+-09-•fk?`i'f•-69W:at . Exhibit 1 1 of 12 1. Staff Report; and Planning Department Memorandum dated A.>agt:sti 1, .19M FINDINGS f)F FACT The subject arra is approximately- 60 acres in size, and consists of flu' 4) tax lots. The topogLaphL is generally levol and has v vpgeativu coS 3rillg of bunch grasses, bitterbrushs juniper and pine trees The site is undeveloped and has an old mining pit located in the eduthw€stexn portion of the parcel:, Camp Polk Road abuts the parcel on the west, and the sisters :Barr,1av) airstrip runs through the eastern portion of the parcel. 2, Land .uses in the surrounding area 4onslst of Indian ford M a£it ws 5iubdivi�s toa to the north and vest, Trapper Point Subdivision to the west, Sisters - Ct;arC.tay3 Airstrip' t,t the south and east and a mix of rural lots to the east. The primary uses occurring in the area are rural residential w .th,. some farm uses cm small (one acre) to medicum (3+ acres) Sized pa`t'c.etse 2 The applicant: has,proposed a 12 lot Cluster ::rc;velopt:eM called Eagle Air Estates, Access f ss to t1"!.' 1nts would 1)e oft of it private road leading from Camp Polk Road The private road, as proposed, would also connect to the northern end- of the Sisters Airstrip. $he 12 lot development is designed to be an airpaKX when lot owners cat3-d taxi their personal planes out. onto the private road and then to the airstrip. The preliminary plan .submitted with the subdivislon appl±oation shows a1.1. the lots :we of the r o t h a:i��l:r.l�s with one lot near the end in an exi.zti..na meadow area. The plan indicates 12 parcels of approximately 1-5 -acres in size. r Trares%itta,s from vatiou state and local public agencies had the following comments; The Oregon -State Department tment of Aeronautics Division sent: a large packet of basic information in airport compz;ibilit.y, model airport overlay sone, etc. However, they did not have speeif i.^. comments on the proposed development at this time, The County Public: Works Department had several comments_ regarding the orb -posed development. One key issue' of conoeM is the location of the proposed access road into the development, ---2-- F1ND1: GS AND D CaSIO1<, File Nos. CU-t39-68/TP-89-701 Exhibit 1 2 of 12 to Ci3k.3.de the location .and ;e ei•.g 3 of ui,.3ra development no an to minimise the p£3€3t_3.&: coats of faeili.t- es and s<:1"1; .cee, to wield 'lila C'e:As 3.V expansion of service hoondiari ?s,. and to p? weir -e at3C3 {:f3ch nce the s .fcty and vi c2bi 1 ity €3f rural. land uses. c, To provide ide f Z the. possible long;Y' r expansion of 's;.3'baR areas while protecting' the t3 i t nct;i.£)E3 between 'urban (Uvha ai 2ing) lands s a3;d Simi aande. Because 91% of .:he new County population :ati,1? live Inside 3;2 3.1r:)a£3 area, with only 3 t 0.34 new rural doth -required end in light of '- the 17,.`7' undeveloped:'ural tracts and lots :is .3ell as :.i3e energy, environmental and public service i.U7r',..Be all future rural dev 7.oJ3m£313fi will be ztringeetly reviewed tor. public need :)v E:^se. approval, s a -doidel ne SST review. if h L^'tudy ot: existi£!ia. lots 5, 2 1::11 3 3± three 3 lemon n` ; c! i$:: eAitan t1pernr t#2213"$ `+- t €: �- t i... pet be J e 3tGw'tit i 'iai `1 4fz�3. 3.4 JL +?fa:( t3 c Y r i i as121h # �i ckc9 e Jts 333fony { ��n This 3z3 3# Itt #t�a1#.t Sial i Fl 3 i. will ,foxmi3 devf o S':.nt £3 areae where such i> 31t3:tlf>1. (other polsleins considering FSEt'et'.i.gy.. public tac<ai`c es? nafety and other development aspects ;shall also be considered) wh: le restricting ng fut_are division it Mmes where many undeveloped lots already exist, Cluster or planned development o fe.r. significant r J r- b.. ;;at7j,Ssga� ?:€3: h.,sdeveloper uvL1 i'L'�.., vti:C7:tnsE3 €3f. ?:€:-CSC#ce+.,`, road way, utility and cv3i$t3.3c:tion CO5t:S. Public c.:0sts to serve e <ust;.e' ';1eirs ?,:3p333ent5 are also usually lower. development ' 3r•x efore, to enCoUrege and vlannod tFiivelo 1F£k£°Yc2`, rather than Fits. eli%ctior, Z`Z:. z3#t?. an aP e>'3se ia de s fir iu,,i to 3A-iF,a4 ei^'. f done ,.. € .;i#':t:t and 3ianned L ^ire 11 333',en J ..... 4... C1.0 ter aad planned developments shall ??aintainf minimum .of 65% of the land in open space; timber or agricultural unes compatible with. the surrJundin area and the development areaw The open space o the development velozpmt nt mai be platted ted ae a ee =a,ra3:.E3 parcel ot in common ownership of £a£>ne er a1l of the clustered snit however, the open ares shall not be subject. to ?c<rr.3a>pment: ,Inn et> the c,3hel.^ :z1evc, 'opme£3t a b£cwught inside :1P urban growth boundary. Also eery -ice connections shall be the .minimum length necessary and underground `i¢;1C;r£3 feasible, Roads .shall meet :County -4- N:e:N3)tNGS A:71;: Lt;::::1SIONt File .Fi CU-ti9-WTP-89-701 Exhibit -1 4 of 12 - air 3 ti. 1 i-£1 i i_ t r ..p 1 ? �`�:�.proposal e: r`r. � �';� '� i :fa u�:'.°a :s"'?f::t-tnt of the parcel. to :3H, which woulO conform "s> is},.'. c:Fr13:f31"ia, I$Uv2evert tno applicant's 3urvsys?;r' ?asiinc z still_ verify this 3.n writ: h .o the P1a^n.=..::g ( 2) '.3't -e 00h. 3.04oV a'roa arw proposed to remain in na iira1 asd .not put. toward any c e eL+> :::ent. C. Conformance vit:h Ordinanon al --043. The app i.r. nt: win need to ::.u?>mir a 3rE3vi nod drawing ro h `:,.'bli,e.`r'. 3 orks ,hep rt` C:"tt. > Planning Division adce:ts:.eind he clear td2.n_'..Cn iasne at the revieed access Duo to .the ,zniveriesr of this subdivision proponal, the € -?arin n o f'aret finds thar building _permits can be priors to .complete 'utility a"',ib:33 road 7;imi$'i7ij£-,^.1eh a in the •euhd .Ji3ia.rao 33AN3'i UPON the foregoing rindinga ot Factee the '-eawisgs Officer hereby SwY.`P? C:VE`eµ' "t' n appligationn '.o :a Conditionalg.se tr�^.mit end Type. •Ot :�ia�?ea '.Ja: i li>f3. :tor the. 12 e lot development sub coot to the 4%E3#'3a :it:i one :: `..., Tho Y&Ot aha11 meet dnJ: equiremests of the State iE;rOti4 3tie.s Depa£:i: est, y.. The a3"ip31F'.Eatit 'i 5:.all meet.. :any requirement a et the Fe;.Ye rat avlat3.Oy....anid3?3'ini,atr.rt 3_on. .. Thd app i i.a t plan, ha 1.3 'Meet e t: 'aa 5;:cjht .> i:..a..r3.ce rernax8'a:3aef t.> :at th . :1-,ii3'✓i:f.o `43r.> k Ds�p:i. ' ff nt: 'The p:.3..3.5:'.ani.: „ahall xetlnve nay.egetStieaa: Yagv,i,zur her 1':i ?.S-:3 e Wo.rke to meet ti3eee 3: ..C..r`u •„f.ee4£enta ia.ae ,plen ell:a:l. ;. :, ei all :c;C £ay.requirements ref• the: Cluster' t)eyulooment, .St a�.� Zrda and d?.-A1.1.�..4a. .i3;£1".z2.JYe`3 hi the cor.a"'fty ... i3i3:33.i�t. ,2 L3,ii".�`',a'icY•s prior to `..ha S'urb :.L'7•:ix..2 t4 ''{..te f :f 23.13.1,. ai j 1 a r. 4 r Trio final plat- nhal.lbe , repared "y Licensed ::z saa:: ve3�i•r in aaG"cirdi nc.Ci>_F3c: e i:,ith Drneu :3r -643e the 3,e nnten County: ;; nbc3i.vi: +>i:/P:er t1:t1on Ordinenne, The P i lie rit1,3ii:-Of-We?~:� and e`:1l comeram to no looate6 anis f£ ii>iti3it{3Tited .. 5, ` rfi3a a;>;>rovaI l'a 'dor twelve i 021 par:.a; • :0. '1'axoa' ::fur the lhj.cty:°L' ea ubdivi&don shall :.,2-e' •fi0,0 Ai { r i;sg to ITie r%$vl rc menta o. i '. 3 .; 92.05 prior ;-.c> final approvT,al , .3NDINGae3 AND y3'i'.'lv1v3'ds Pilo Non: Cl.) -8-68/T4,.., —n1 Exhibit 1 6c 12 TRJ$ mcmum MOM'S FIKAL M0.4 TgE DAVg MUSS XMALED, INAnD Atle, nam this16th Fl-z:w a At,:gust y88ri',40 OCC, l.-f:oi,:nty Planning ;m6 Am -n -4"s- FINDYNO$ An: MalUON,111cu-m-,6a/T-70,1 Exhibit 1 8 0 12 FILE NUMBERS: HEARONG DATE: LlEARNGS OFFICER MCSOK 247 -18 -000138 -DR May 22, 2018, 6:00 p.m. Mailing Date: Wednesday, July 25, 2018 APPLOCANTIOWN ER: Eagle Air Estates Homeowners Association ATTORNEY: J Christian Malone 550 NW Franklin Avenue, #378 Bend, Oregon 97703 STAFF CONTACT: Peter ussell, Senior Transportation Planner 111 HEARiNGS OFFOCER: Gregory J Frank SUMMARY OF DECEiStiON: The paved taxiway at the !age Air Estates Custer Devei*pinent vioiates open space requirements. APPLBCABLE CRUTERPA: Public Law PL -15 Section 1.030, Definitions (21) and (80) Section 8.050, Specific Use Standards (16) Title 22, Deschutes County Development Procedures Ordinance Chapter 22.40, Declaratory Ruling Land Use Approval CU 89-68/TP-89-701 ASIC FiNDINGS: A. LOC WIN: The subject property is the Common Area associated with the Eagle Air Estates Subdivision and is identified on County Assessor's Tax Map 14-10-33D, as Tax Lot 99 (the "Subject Property"). B. Z * WIG: The Subject Property is zoned Rural Residential (RR -10). C. LOT OF RECORD. The Subject Property is a legal lot of record because it was platted as the Common Area of TP -89-701, Lot 0, of Eagle Air Estates Subdivision. 7. Taxiway is a recreatonall use Applicant's Attorney argued that use of the common area as a taxiway for private planes will "enhance recreational opportunities" as that phrase is used in PL-15 Section 1.030 (80). The Hearings Officer finds this argument has merit. The Hearings Officer finds, based upon the evidence in the record, that owners of homes/hangers in the EAE Cluster Development are also likely to be owners of private planes. The Hearings Officer finds that flying a private airplanes can be considered a recreational activity for private pots and passengers owning homes/hangers in the EAE Cluster Development. The Hearings Officer finds, based upon the evidence in the record, that a taxiway allowing private planes to access the Sisters Airpark can satisfy the PL-15 Section 1.030 (80) isting requirement "enhance recreation opportunities". The Hearings Officer finds PL-15 Section 1.030 (80) requirement of "enhance recreation opportunities" can be satisfied by a paved taxiway or an unpaved taxiway. 8. Outside Ades to hnterpretation of meanlng of Open Space. Applicant's Attorney identified a number of outside aides to assist the Hearings Officer in interpreting the meaning of open space. For example, Applicant's Attorney referenced a Deschutes County approval of the Miller Tree Farm (247-14-000248 CLI, 247-14-000249-TP), destination resort approval criteria and Land Conservation and Development Commission open space regulations. The Hearings Officer found it unnecessary to consider any of Applicant's Attorney's outside aides. The Hearings Officer found that the CU-89-68/TP-89-701 Approval language and the relevant sections of PL-15 were determinative. 9. Conclusion As noted in the findings above, the Hearings Officer finds that the CU-89-68/TP-89-701 Approval contains language relevant to the making of a decision as to whether or not a paved taxiway violates the open space requirements. Specifically, the CU-89-68/TP-89- 701 Approval contains language prohibiting development within the open space designated lands within the EAE Cluster Development. The Hearings Officer finds paving a taxiway, on land designated as open space, is development. The Hearings Officer finds allowing a paved taxiway on land designated open space, at this time and in this Declaratory Ruling, would be considered a modification of the CU-89-68r1P-89- 701 Approval; the Declaratory Ruling Process prohibits modifying decisions. The Hearings Officer finds the CU-89-68/TP-89-701 Approval language prohibits a paved taxiway on the common area/open space located between the turnaround (end of private road) and the Sisters Airport. The Hearings Officer also reviewed the definition of open space applicable to the CU- 89-68/TP-89-701 Approval application. The Hearings Officer finds that DCC 1.030 (80) definition allows for uses in the open space designation so hong as the "lands [are] used for agricultural uses, and any land area that would, if preserved and continued in its present use... (list of specific uses including "enhance recreation opportunities"). The Hearings Officer finds that the reference to "present use" refers to the use of the and at the time of an application or initial review (in this case — 1989). Applicant's Attorney argued that the present use is the taxiway or paved taxiway. The Hearings Officer finds the present use, as of 1989, was best described by Hearings Officer Fitch as having a "vegetative covering of bunch grasses, bitterbrush, juniper and pine trees. The site is undeveloped and has an old mining pit." The Hearings Officer finds that OCC 1.030 (80) requires the land, to be considered as open space, be "presented and contrinuei in its present use." (emphasis added) The Hearings Officer finds the present use, that had to be "preserved and continued" in 1989, was undeveloped land and not a paved taxiway. The Hearings Officer notes that an unpaved taxiway might have been considered a "present use" as Hearings Officer Fitch did describe the EAE Cluster Development as providing airplane access from the development to the Sisters Airpark. Applicant's Attorney did not request the Hearings Officer, in this Declaratory Ruling process, to decide if an unpaved taxiway violated open space requirements; as such the Hearings Officer's observation that an unpaved taxiway is allowed in open space cannot be considered as binding. DATE this 25th day of July, 2018. Hearings Officer, Gregory J Frank 6 • P�(�Bowz��5�t�7�&� phO RgEiltiORAHOUgl To: Bryan Paxson, PresidentEagle Air Estates Association (110A) From: Peter RusseH, Senior Transportation Date: August 4, 2016 Re: Overview of land use issues for paved runout at Sisters Airport 8ssue At the Ssters Airport a paved runout apron of approxmatey 30' X 295' at the end Ruriway 20 was built without permits and on land owned not by the airport, but by Eagle Air Estates. The and is part of the common area for the subdivision, is zoned Rura Residentia (RR -1 0), and contains rnapped wetlands. Planning staff from Deschutes County and the City of Sisters have met with the Sisters Airport owner -operator and several members of the Eagle Air Estates HOA to discuss the issue and assess what, if any, possible solutions might be available within the land use system. There have aso been coriversations with staff from the Oregon Department of Aviation (ODA). � ackgr*und Summary The Sis��odw��h��ma1835.ec��|ng��o�.in19�D�c�� (�Quntyapproved 8nmirparksubdivision, Eagle /�rEstates, under CU-89-88/TP-O9-701. The 12-)Vtai[parksubdivision lies onthe vxeot side 0fthe airpndoDland zoned F�R'1U. The Sisters Alrport was use. /�city baU(t in 2012 approved the <�ityofSisters annexing the airport, which was completed in 2014. The airport now lies enbre|yvv|thinthe ��ietersc�y|im0|to and urban growth boundary(U�3B). Sometime in2015-18@1�30'��2S5'(8.&50square foot) paved runout was without the RY�-10land, vvhichalso includes lands 0nthe National Inventory Of Wetlands. � sh�0d Question 1: Us the use a8Uowmed in the R -10 z�nm? Deschutes County Code (D��(�)18.8U.O2O!�1uthe uses pmnn�tedouthoh1inthe ��R-1Ozone and DCC 18.0O.83Olists the uses penni�edcnnd�0n8||y. Anairpn�ksnot anOuthghtpenm�ed � use. Apersonal use ��thpisacondi1iono0ya|iovveduse pti]\��18.DD0.O30([}\ The only pilots aUovvedtouse apersonal airstrip, unless it's anernSpgenCy'are the ovvnerand in�equent guests. The Sisters Airpodis listed in ODA's database and the Deschutes County Transportation System Plan (TSP) as a privately owned, public use airport. Therefore the � paved runout is not an allowed use under 18.060.030(D) as the Sisters Airport is not a private airstrip as DCC defines the term. DCC 18.60.030(P) does list public uses as a conditionally allowed U$8. Given the Sisters Airport status as a privately owned, public use airport, the paved runout could potentially be viewed as an allowed use. A party would need to apply for a land use approval from Deschutes County to determine the answer. Threshold Question 2: Does the ruriouit violate Eagle At Estatestend USG approval? Eagle Air Estates is a duster subdivision, which means the land received a density bonus to allow for additional residences, but dedicated open space is required to offset the increased number of homes. On page 4 of the findings and decision for CU-89-68/TP-89-701, the decision states: "4. Cluster and planned developments shall maintain e trihiMUM tof 65% of the land in open space, timber, or agricultural uses compatible with the surrounding area and the development area. The open space of the development may be platted as a separate parcel or in common ownership of some or all of the clustered unit; however, the open space shall n©t be subject to development unless the whole development is brought inside an urban growth boundary..." (en/phases added) Eagle Air Estates totals 60.37 acres. The attached plot plan in the approval lists the land use mix as follows: o Common area: 39.25 acres (65%) • Road right of way: 3.40 acres (5.6%) © 25' access easement: 0.60 acres (1%) o Lots: 17.12 acres (28.4%) As can be seen, Eagle Air Estates is right at the 65% requirement and cannot lose any square footage, which would violate the subdivision's land use approval. (The County's DIAL system incorrectly displays the private roads within Eagle Air Estates as common area, but the approved materials at Plat No. 701 label the common area, which does not include the roads or easement.) A party could acquire additional property contiguous to Eagle Air Estates and perhaps use that property to meet the 65% requirement by applying to modify the land use approval. DCC 18.04.030 defines the terms used in County code: "Open space" means lands used for aoricultural or forest uses and any land area that would, if preserved and continued in its present use: A. Conserve and enhance natural or scenic resources; B. Protect air, streams or water supply; C. Promote conservation of soils, wetlands, beaches or marshes; D. Conserve landscaped areas such as public or private golf courses, that reduce pollution and enhance the value of adjoining or neighboring property; 2 E. Enhance the value to the public of adjoining or neighboring parks, forests, wildlife preserves, nature reservations or other open space; F. E.P.lhance recreaden opporituriliges; G. Preserve historic, geological and archeological sites; H. Promote orderly urban development; and 1. Minimize conflicts between farm and nonfarmuses. c'emphases added) Clearly, a paved area with painted chevrons and lights is developed and is inconsistent with the conservation of a mapped wetland. Such an action violates the airpark subdivision's land use approval. Discussions with ODA staff indicated the agency is aware of non -paved runouts throughout Oregon. There are grass runouts as well as gravel runouts. It could be easily argued a grass runout is consistent with the no developrnent requirement while a gravel runout is reasonably debatable. A perforated pavement that allows water to drain and grass to grow would be the least surface likely to meet the no development standard. A party could apply to the County for a declaratory ruling on the question of what materials would be allowed for a runout that are consistent with the open space requirement as well as enhance recreation opportunities as cited by the open space definition at F. Another option would be to apply for a text amendment to County code which allows an airport runout to be considered open space. Finally, the airpark subdivision is not within the City of Sisters UGB. Possibte remedies under the @and use system Staff has discussed se-veral options to pursue, but staff cannot predict the outcome of a land use application that would involve either a hearings officer, the County's Planning Commission, or the Board of County Commissioners. Ali of these review bodies are independent decision - makers. The review body may approve outright, approve with conditions, or deny a land use application. As the runout is on Eagle Air Estates property, the HOA must either directly apply or provide written approval of another party applying for a land use on HOA property. The potential remedies are listed below in increasing order of complexity. 1. Remove the paved runout and restore the area While no land use application is required, a permit(s) from the regulating agency(ies) may be required. 2. Apply for a Declaratory Ruling on whether the paved runout is a public use in RIR-10 The land use application would determine whether a runout for a public -use airport meets the definition and/or intent of public use under DCC 18.60.030(P). While this could address Threshold Question 1, it does not address Threshold Question 2 and the 65% requirement for open space under CU-89-68fTP-89-701. A second declaratory land use application, either simultaneous or sequential, would need to determine whether a grassy runout or gravel runout would be considered undeveloped and thus comply with the open space requirement. Any declaratory ruling would be decided by a County hearings officer. 3. Apply fora text amendment to add runout as listed use under the Open Space definition As a text amendment to DCC 18.04.030 applies to all affected properties in the County, the text amendment could be initiated by either the Sisters Airport owner -operator or the 3 Eagle Air Estates HOA. The application process would be public hearings before the Planning Commission (PC) and then the Board of County Commissioners (BOCC). 4. Apply for a text amendment to add runout for a pubic airport as a conditional use in RR - 10 Similar to the Open Space text amendment above, amending DCC 18.060.030 would affect all RR -10 zoned properties in the County, thus either the Sisters Airport owneroperator or the Eagle Air Estates HOA could initiate the land use application. The public hearing process would again be the PC and then the BOCC. 5. Lot line adjustment to extend the Sisters Airport tax lot to include the runout The northern portion of the Sisters Airport is identified as 141033D001300. The abutting Eagle Air Estates common area is identified as 141033D000099. The lot line adjustment would add the 30' X 295' to Tax Lot 1300 and subtract it from Tax Lot 099. The land could be sold or leased to Sisters Airport to be used for aviation purposes. Again, the issue will be what subsequent action will the HOA need to take to comply with the 65% open space requirement of CU-89-68/TP-89-701. Tax Lot 1300 would be both cross -jurisdictional (City of Sisters and Deschutes County) and split -zoned (City = Airport and County = RR -10), but neither is a fatal flaw. 6. Annex the runout into the City of Sisters, rezone to Airport, and amend the Deschutes County Comprehensive Plan Apply to City of Sisters for annexation into the City for the runout with an application to rezone to the city's Airport designation. While this rectifies the issue of allowed uses under RR -10, it does not resolve the 65% open space requirement of Eagle Air Estates land use approval. An amendment to the Deschutes County Comprehensive Plan would also be required. Additional considerations regarding airports and zoning Consistent with Oregon Revised Statute (ORS) 836.608, ODA maintains a list of public use airports that had three or more based aircraft and were in operation on December 31, 1994. For these airports, aviation uses are outright permitted regardless of local land use regulations on land within the airport boundary. Lands within the airport boundary are lands either owned by the airport or leased for lone -term use. Sisters Eagle Air is currently not on that ODA list, but is proposed to be added under ORS 836.608(2), which concerns privately owned, publically used airports. ODA will hold a public hearing in either August or September regarding adding the Sisters Airport to this list. The hearing location has not been determined, either, but by statute the location must be in Deschutes County. If Sisters Airport is added to the ODA list, ORS 836.610 requires local governments to amend their comprehensive plans and land use regulations to be consistent with ORS 836.616 (uses and activities allowed within airport boundaries) and 836.619 (safety standards). Deschutes County already complies with ORS 836.619 through its Airport Safety zone, DCC 18.80. Regarding ORS 836.616, the runout would be described under ORS 836.616(2)(a) as a "customary and usual aviation -related related activities, including but not limited to takeoffs, landings..." There are Iwo problematic aspects to this requirement. 4 First, ORS 836.610(2)(a) requires the code update be done no later than the first Periodic Review that occurs after ODA adopts the list of airports. Deschutes County is not under Periodic Review nor will it he in the future, The language that pertains to Periodic Review (ORS 197.628 to 651) has been amended, basically eliminating scheduled Periodic Reviews for rural counties. nstead, once comprehensive plans are acknowledged, Periodic Review under ORS 197.628 is only triggered by substantial changes in the circumstances upon which the plan's findings were based or for selected urban sections of rural counties. The language in ORS 836.610(2)(a) was not updated to reflect the changes to Periodic Review, which used to occur at a set timeframe of every four to eight years. lt may be possible to amend the Deschutes County Comprehensive Plan for the purposes described in this memorandum outside of Periodic Review. Deschutes County CDD would require the Comprehensive Plan Amendment to be submitted by the property owner or its designee with the requisite fees. Second, the runout is not within the Sisters Airport boundary as the land is not owned by the airport nor is it under long-term lease. Therefore, it appears the property owner would need to sell or lease the land to the Airport Additionally, adding the land to the Sisters Airport would then cause Eagle Air Estates to be in violation of the 65% open space requirement of their local land use approval. It is unclear to staffwhether ORS 836.616 supersedes a previous local land use decision and, if it is allowed, are there any consequences of such a decision (e.g., the open space parcel becomes a non- conforming use?). Finally, the paved runout is also located on mapped wetlands. Deschutes County, federal and state agencies require permits to work in mapped wetlands. CorgeOuskm Planning staff does not presume or predict any predetermined outcome, either an approval or a denial, of the listed land use application options discussed in the memorandum. There appear to be several potential paths forward ranging from removal to exemption by the State (notwithstanding development in the mapped wetlands) to fully permitted in the City or County. County CDD is committed to working with all parties on a successful resolution. cc: Rick Allen, interim manager, City of Sisters Benny Benson, owner -operator Sisters Eagle Air Airport Dave Campbell, manager, Sisters Eagle Air Airport Jeff Gaines, Oregon Department of Aviation Patrick Davenport, Community Development Dept. Director, City of Sisters Peter Gutowsky, Planning Manager, Deschutes County Nick Lelack, Community Development Dept. 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A O X 1 a ILI BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Citizen Input or Testimony Subject: E . 4:r 2e A J Date: ` ,5-1 Name2C/(5O4 Address iOP St4) , j,Af: S )90 L3/10 g2-- Phone z Phone #s 91/ %/ 0 V E-mail address`L In Favor Neutral/Undecided Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the recd Opposed No Pre SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS 0 N EL' .0 O O oO cn O �• s. It 0 N 44H a) o boA p O Code Violation Plat Correction DCC 1.16 — Code Violations and Enfcmt. DCC 17.243.170 — Correction of Errors .010. Violations Deemed Class A or 13 Per ORS 92.170(1) Classification — Penalties. OA Q, !� 4 a) O w cu icrj o s-4 1:0 0 0 "; 7i 4i N N GUj N 8 ) 0 1" at O o 4-4 al O o O U ▪ "C3 0 04 04 to ai O • °r 0 w a) CA 0 d O 0 rA O 71 o o • ›,a) cCA CA •-4 o v) O 0• : 0,0 41 cC � 0 o c� o .2, O — OKi trzi 1 0 0 Z C) O 0 0 a) O "c cs •t3 cV O rn O 0 0 00 O 01 0 0 0 U O 0 -o a) • a) . aS 8 U a) • O - •o o `' 0 p 4 0 4 O O O 92.130 PROPERTY RIGHTS AND TRANSACTIONS vide without cost the number of prints from the copy that are required by the governing body of the county. (4) For the purpose of preserving the re- cord of subdivision or town plats or partition plats, the plats may be microfilmed or stored for safekeeping without folding or cutting. All records must be created and stored in accordance with all applicable rules and reg- ulations and in a manner that ensures the permanent preservation of the record. [Amended by 1955 c.756 §16; 1973 c.696 §18; 1977 c.488 §1; 1985 c.582 §10; 1987 c.649 §12; 1989 c.772 §17; 1991 c.763 §17; 1993 c.702 §7; 1995 c.382 §9; 1997 c.489 §6; 1999 c.710 §4; 2005 c.399 §13] 92.122 [1987 c.649 §13; 1989 c.772 §18; 1991 c.763 §30; repealed by 1995 c.382 §11] 92.130 Additional tracings transferred to county surveyor; replacing lost or de- stroyed records. Any additional tracings of subdivision or partition plats as mentioned in ORS 92.120 other than the one copy filed with the county surveyor shall be transferred to the county surveyor who then shall keep them well bound and safeguarded as required by law. If the original subdivision or parti- tion plat or copy thereof is lost, destroyed, mutilated or missing from the county re- cords, the county surveyor shall make a copy thereof, and file it in the proper office of re- cord. Each such copy made by the county surveyor pursuant to this section shall bear a certificate of the surveyor that it was made in compliance with this section, and that it is a true copy of the original record. [Amended by 1955 c.756 §17; 1989 c.772 §39] 92.140 Indexing of plats. (1) All subdi- vision and partition plats shall be indexed in the recording indices of the county. The dec- larations to such plats shall also be indexed in the indices of Records of Deeds for the county. When the subdivision and partition plats are so recorded and indexed, they shall be the legal record of all subdivision and partition plats. (2) Counties with a consolidated index may index plats in the consolidated index. The declarants shall be indexed as the direct parties and the plat name shall be indexed as the indirect party. (3) The subdivision and partition plats shall be preserved as the permanent record of the county. [Amended by 1955 c.756 §18; 1989 c.772 §20; 1995 c.79 §33; 1999 c.654 §§6,6a] 92.150 Construction of donations marked on plat. Every donation or grant to the public, including streets and alleys, or to any individual, religious society, corporation or body politic, marked or noted as such on the subdivision or partition plat wherein the donation or grant was made, shall be consid- ered a general warranty to the donee or grantee for the use of the donee or grantee Title 10 for the purposes intended by the donor or grantor. [Amended by 1955 c.756 §19; 1989 c.772 §21] 92.160 Notice to Real Estate Commis- sioner of receipt of subdivision plat. If the comprehensive plan and land use regulations of a city or county have not been acknowl- edged under ORS 197.251, the city engineer, city surveyor or county surveyor shall im- mediately notify the Real Estate Commis- sioner in writing of receipt for approval of any subdivision plat pursuant to ORS 92.100 (1). The notification shall include a general description of the land with the number of lots and total acreage covered by the subdi- vision plat and the names of the persons submitting the subdivision plat for approval. [1965 c.584 §2; 1983 c.570 §6a; 1989 c.772 §22] 92.170 Amending recorded plat; affi- davit of correction; fees. (1) Any plat of a subdivision or partition filed and recorded under the provisions of ORS 92.018 to 92.190 may be amended by an affidavit of cor- rection: (a) To show any courses or distances omitted from the subdivision or partition plat; (b) To correct an error in any courses or distances shown on the subdivision or parti- tion plat; (c) To correct an error in the description of the real property shown on the subdivision or partition plat; or (d) To correct any other errors or omis- sions where the error or omission is ascer- tainable from the data shown on the final subdivision or partition plat as recorded. (2) Nothing in this section shall be con- strued to permit changes in, courses or dis- tances for the purpose of redesigning lot or parcel configurations. (3) The affidavit of correction shall be prepared by the registered professional land surveyor who filed the plat of the subdivision or partition. In the event of the death, disa- bility or retirement from practice of the sur- veyor who filed the subdivision or partition plat, the county surveyor may prepare the affidavit of correction. The affidavit shall set forth in detail the corrections made and show the names of the present fee owners of the property materially affected by the cor- rection. The seal and signature of the regis- tered professional land surveyor making the correction shall be affixed to the affidavit of correction. (4) The county surveyor shall certify that the affidavit of correction has been examined and that the changes shown on the certif- icate are permitted under this section. (5) The surveyor who prepared the affi- davit of correction shall cause the affidavit Page 130 (2017 Edition) SUBDIVISIONS AND PARTITIONS 92.177 to be recorded in the office of the county re- corder where the subdivision or partition plat is recorded. The county clerk shall re- turn the recorded copy of the affidavit to the county surveyor. The county surveyor shall note the correction and the recorder's filing information, with permanent ink, upon any true and exact copies filed in accordance with ORS 92.120 (3). The corrections and fil- ing information shall be marked in such a manner so as not to obliterate any portion of the subdivision or partition plats. (6) For recording the affidavit in the county deed records, the county clerk shall collect a fee as provided in ORS 205.320. The county clerk shall also collect a fee set by the county governing body to be paid to the county surveyor for services provided under this section. Corrections or changes shall not be allowed on the original plat once it is re- corded with the county clerk. [1983 c.309 §2; 1989 c.772 §23; 1993 c.702 §8; 1999 c.710 §6; 2001 c.173 §2] 92.175 Methods by which certain land may be provided for public purposes. (1) Land for property dedicated for public pur- poses may be provided to the city or county having jurisdiction over the land by any of the following methods: (a) By dedication on the land subdivision plat; (b) By dedication on the partition plat, provided that the city or county indicates acceptance of the dedication on the face of the plat; or (c) By a separate dedication or donation document on the form provided by the city or county having jurisdiction over the area of land to be dedicated. (2) Notwithstanding subsection (1) of this section, utility easements in partition and condominium plats may be granted for pub- lic, private and other regulated utility pur- poses without an acceptance from the governing body having jurisdiction. [1989 c.772 3; 1997 c.489 §7; 2007 c.652 §4] Note: 92.175 was added to and made a part of 92.010 to 92.192 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation. 92.176 Validation of unit of land not lawfully established. (1) A county or city may approve an application to validate a unit of land that was created by a sale that did not comply with the applicable criteria for creation of a unit of land if the unit of land: (a) Is not a lawfully established unit of land; and (b) Could have complied with the appli- cable criteria for the creation of a lawfully established unit of land in effect when the unit of land was sold. Title 10 (2) Notwithstanding subsection (1)(b) of this section, a county or city may approve an application to validate a unit of land under this section if the county or city approved a permit, as defined in ORS 215.402 or 227.160, respectively, for the construction or place- ment of a dwelling or other building on the unit of land after the sale. If the permit was approved for a dwelling, the county or city must determine that the dwelling qualifies for replacement under the criteria set forth in ORS 215.755 (1)(a) to (e). (3) A county or city may approve an ap- plication for a permit, as defined in ORS 215.402 or 227.160, respectively, or a permit under the applicable state or local building code for the continued use of a dwelling or other building on a unit of land that was not lawfully established if: (a) The dwelling or other building was lawfully established prior to January 1, 2007; and (b) The permit does not change or inten- sify the use of the dwelling or other building. (4) An application to validate a unit of land under this section is an application for a permit, as defined in ORS 215.402 or 227.160. An application to a county under this section is not subject to the minimum lot or parcel sizes established by ORS 215.780. (5) A unit of land becomes a lawfully es- tablished parcel when the county or city validates the unit of land under this section if the owner of the unit of land causes a partition plat to be recorded within 90 days after the date the county or city validates the unit of land. (6) A county or city may not approve an application to validate a unit of land under this section if the unit of land was unlaw- fully created on or after January 1, 2007. (7) Development or improvement of a parcel created under subsection (5) of this section must comply with the applicable laws in effect when a complete application for the development or improvement is submitted as described in ORS 215.427 (3)(a) or 227.178 (3)(a). [2007 c.866 §2] Note: 92.176 was added to and made a part of 92.010 to 92.192 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation. 92.177 Creation of parcel by less than all owners of lawfully established unit of land. When a unit of land was sold before January 1, 2007, but was not a lawfully es- tablished unit of land, the governing body of the city or county or its designee shall con- sider and may approve an application for the creation of a parcel pursuant to ORS 92.176, notwithstanding that less than all of the Page 131 (2017 Edition) Chapter 1.16. CODE VIOLATIONS AND ENFORCEMENT 1.16.010. 1.16.020. 1.16.030. 1.16.032. 1.16.035. 1.16.040. 1.16.045. 1.16.050. 1.16.060. 1.16.070. 1.16.080. 1.16.090. Violations Deemed Class A or B Classification -Penalties. Continuing Violations. Violation Procedures -Statutory Provisions Adopted. Base Fine Amounts and Violation Classification for Water Supply, On -Site Sewage, Building Code, Subdivision Regulations and Land Use Regulation Violations. Search Warrants -Statutory Provisions Adopted. Other Remedies Not Precluded —Injunctive Relief/Abatement. Private Right of Action. Stop Work or Use Tag Violations. Continuation of Certain Liabilities. Code Enforcement Officials -Designation by County Administrator. Code Enforcement Officials- Appointment Status. Penalty for False Information on Noise or Animal Control Violation. 1.16.010. Violations Deemed Class A or B Classification -Penalties. A. Violation of a county ordinance shall be punishable, upon conviction, by fine or by the specific remedies specified within the County Code. B. Each county ordinance specifying a county offense shall classify the ordinance violation as a Class A or Class B violation. C. A sentence to pay a fine for a violation of a county ordinance shall be a sentence to pay an amount not exceeding the Maximum Fines provided in ORS 153.018. D. Notwithstanding this section and DCC 1.16.030, for violations of Chapters 13.04, 13.08, 13.36, 15.04 and 15.10 and Titles 17 18 and 19, the Presumptive and Minimum fine amount shall be the Maximum Fine amount described in DCC 1.16.010(C). E. For violations of County Code provisions not listed in DCC 1.16.010(D), the Presumptive and Minimum Fine amounts shall be as provided in ORS Chapter 153. F. A land use application for a property with an existing code violation will be accepted, but not processed by the County based on DCC 22.20.015. G. Notwithstanding DCC 1.16.010(D), the court or the hearings officer may impose a fine lower than the fine provided in those two sections, upon a finding of mitigating factors including, but not limited to, indigence of the defendant, severity of the violation, number of times the defendant has been previously cited for Deschutes County Code violations; length of time the violation has existed; and reason(s) the violation has not been cured. (Ord. 2015-020, §1, 2015; Ord. 2014-003, §1, 2014; Ord. 2013-015, §1, 2013; Ord. 2008-026, §1, 2008; Ord. 2003-021 §3, 2003; Ord. 2002-016 §9, 2002; 86-076 §1, 1986) 1.16.015. Strict Liability A. All of the offenses in the Deschutes County Code are strict liability offenses and do not require the proof of any culpable mental state unless the code provision defining the offense expressly provides that culpability is required. B. It is no defense to prosecution under any provision in this code that the actor was not the person who actually created, moved, caused, or maintained the unlawful condition or use. C. A person is liable for prosecution under any provision of this code: 1. If the person created, moved, caused, or maintained an unlawful condition or use; 2. If the person aided or abetted another person in creating, moving, causing, or maintaining an unlawful condition or use; Chapter 1.16 1 (3/2016) 3. If the person is in actual or constructive possession of premises on which an unlawfulcondition or use or is found; or 4. If the person has any interest, other than a security interest, in premises on which an unlawful condition or use is found. (Ord. 2008-026, §1, 2008) 1.16.020. Continuing Violations. A. When a violation is of a continuing nature, a separately punishable violation occurs on each calendar day the violation continues. B. The complaint for a continuing violation will clearly state the following: 1. The ongoing or uninterrupted nature of the violation; 2. The date the violation is alleged to have first occurred; 3. The dates or range of dates of each day of the continuing or uninterrupted violation; and 4. The amount of the fine for each day's violation. (Ord. 2008-026, §1, 2008; Ord. 2003-021 §4, 2003; Ord. 2002-016 §9, 2002; 86-076 §2, 1986) 1.16.030. Violation procedures -Statutory provisions adopted. A. The violation procedures as set forth in ORS 153.030 to 153.145 and 153.990 shall be the procedures for county ordinance violations, and are adopted hereby by reference. B. Peace officers may enforce the provisions of Chapter 6.08, Animal Control, when the peace officer has reasonable grounds to believe that the conduct constitutes a violation of that chapter. (Ord. 2009-005 §1, 2009; Ord. 2008-026, §1, 2008; Ord. 2003-021 §5, 2003; Ord. 2002-032 §1, 2002; 2002-016 §9, 2002; 86 076 §3, 1986) 1.16.032. Violation Classification for Water Supply, On -Site Sewage, Building Code, Subdivision Regulations and Land Use Regulation Violations. A. Violations of Chapters 13.04, 13.08, 13.36, 15.04 and 15.10 and Titles 17 and 18 constitute Class A violations. (Ord. 2013-015, §1, 2013; Ord. 2002-032 §1, 2002) 1.16.035. Search warrants -Statutory Provisions Adopted. A. The definition of "offense" as set forth in ORS 161.505 is adopted: B. An offense is conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law or ordinance of a political subdivision of this state. An offense is a crime or a violation. C. ORS 133.535 (3), which allows for property that has been used, or is possessed for the purpose of being used, to commit or conceal the commission of an offense to be the subject of search and seizure is adopted hereby by reference. D. The procedure established for obtaining search warrants as set forth in ORS 133.545 through 133.703 is adopted hereby by reference. (Ord. 2003-021 §6, 2003; Ord. 96-025 §1, 1996) 1.16.040. Other Remedies Not Precluded—Injunctive Relief/Abatement. Chapter 1.16 2 (3/2016) Chapter 22.40. DECLARATORY RULING 22.40.010. Availability of Declaratory Ruling. 22.40.020. Persons Who May Apply. 22.40.030. Procedures. 22.40.040. Effect of Declaratory Ruling. 22.40.050. Interpretation. 22.40.010. Availability of Declaratory Ruling. A. Subject to the other provisions of DCC 22.40.010, there shall be available for the County's comprehensive plans, zoning ordinances, the subdivision and partition ordinance and DCC Title 22 a process for: 1. Interpreting a provision of a comprehensive plan or ordinance (and other documents incorporated by reference) in which there is doubt or a dispute as to its meaning or application; 2. Interpreting a provision or limitation in a land use permit issued by the County or quasi-judicial plan amendment or zone change (except those quasi-judicial land use actions involving a property that has since been annexed into a city) in which there is doubt or a dispute as to its meaning or application; 3. Determining whether an approval has been initiated or considering the revocation of a previously issued land use permit, quasi-judicial plan amendment or zone change; 4. Determining the validity and scope of a nonconforming use; 5. Determination of other similar status situations under a comprehensive plan, zoning ordinance or land division ordinance that do not constitute the approval or denial of an application for a permit; and 6. Verifying that a lot of parcel meets the "lot of record" definition in 18.040.030 pursuant to DCC 22.04.040(D). Such a determination or interpretation shall be known as a "declaratory ruling" and shall be processed in accordance with DCC 22.40. In all cases, as part of making a determination or interpretation the Planning Director (where appropriate) or Hearings Body (where appropriate) shall have the authority to declare the rights and obligations of persons affected by the ruling. B. A declaratory ruling shall be available only in instances involving a fact -specific controversy and to resolve and determine the particular rights and obligations of particular parties to the controversy. Declaratory proceedings shall not be used to grant an advisory opinion. Declaratory proceedings shall not be used as a substitute for seeking an amendment of general applicability to a legislative enactment. C. Declaratory rulings shall not be used as a substitute for an appeal of a decision in a land use action or for a modification of an approval. In the case of a ruling on a land use action a declaratory ruling shall not be available until six months after a decision in the land use action is final. D. The Planning Director may refuse to accept and the Hearings Officer may deny an application for a declaratory ruling if: 1. The Planning Director or Hearings Officer determines that the question presented can be decided in conjunction with approving or denying a pending land use action application or if in the Planning Director or Hearings Officer's judgment the requested deteHuination should be made as part of a decision on an application for a quasi-judicial plan amendment or zone change or a land use permit not yet filed; or 2. The Planning Director or Hearings Officer determines that there is an enforcement case pending in district or circuit court in which the same issue necessarily will be decided as to the applicant and the applicant failed to file the request for a declaratory ruling within two weeks after being cited or served with a complaint. The Planning Director or Hearings Officer's determination to not accept or deny an application under DCC 22.40.010 shall be the County's final decision. (Ord. 2017-015§6, 2017; Ord. 95-045 §47, 1995) Chapter 22.40 1 (10/2001) BOARD OF COMMISSIONERSMEETING REOUEST TO SPEAK Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS TES BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Citizen Input or Testimony: Please complete and submit to Recording Secretary. Subject: b/Y - W � ' 724. ;F Name %'enil 7 /3e4s Address / 2/„' f�f Date: 9//s� Phone #s `/i+ '/ E-mail address 136/ep7 5;,,,� In Favor i Neutral/Undecided 17 Opposed Submitting written documents as part of testimony? Yes IZ1 No If so, please give a copy to the Recording Secretary for the record. BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Citizen Input or Testimony Subject: - _.A E. I xi L00,1 tir i o 1 at c/) a pon S ac;P ^ Date: _ b 6 Name ,`j CoL,t.,1 ; e, Qenri s - ,--ry r 3 i ssf s A i'rpe r Address (p Z r{ Trc, 1 A -- L Phone #s E-mail address bei,s�� @ t►,e �� ; ee , ,- �� S� I (, fis . c. 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. .X� Opposed No SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS w 0 ;JT Subject: Name BOARD OF COMMISSIONERS' REQUEST TO SPEAK MEETING Citizen Input or Testimony e„ Pea / A/P a Y7 /g'-!7006(?-RDate: Address Phone #s E-mail address 1✓, a -s) ±Dill h/s 1vr4 e"1 ene 144A I-41 41 7?03 i9--iy75" In Favor, Neutral/Undecided Aerea Submitting written documents as part of testimony. Yes No If so, please give a copy to the Recording Secretary for the record. ALSO, Adr10741 T� ON7 Ales fr o v% ore d I1, 4i -c f?' r 02.17.- / - Oo 2 /3--- Lte Opposed SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS Subject: Date: TM Name Address Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS JT a BOARD OF COMMISSIONERS' 'MEETING REQUEST TO SPEAK Citizen Input or Testimony Subject: `� :� _ Date: Name Address Phone #s 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