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2018-468-Minutes for Meeting October 15,2018 Recorded 11/2/2018`�vTES COG f BOARD OF E COMMISSIONERS 1300 NW Wall Street, Bend, Oregon (541 ) 388-6570 ' § < 10:00 AM Recorded in Deschutes County ,1 0 Nancy Blankenship, County Clerk CJ2018-468 Commissioners, Journal 11/02/2018 3:49:37 PM 77r 2018-468 FOR RECORDING STAMP ONLY Present were Commissioners Tammy Baney, Phil Henderson and Anthony DeBone. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County Counsel; and Sharon Keith, Board Executive Assistant. Several citizens and 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 10:03 a.m. PLEDGE OF ALLEGIANCE CITIZEN INPUT: None was offered. CONSENT AGENDA: Before the Board was Consideration of Approval of the Consent Agenda. Commissioner Baney requested to pull the Consent Agenda items for further review. BOCC BUSINESS MEETING OCTOBER 15, 2018 PAGE 1 OF 3 Consent Agenda Items: 1. Approval of Minutes of the August 23, 2018 Special Business Meeting 2. Approval of Minutes of the August 27, 2018 Business Meeting 3. Approval of Minutes of the August 27, 2018 Work Session 4. Approval of Minutes of the August 28, 2018 Public Hearing 5. Approval of Minutes of the August 29, 2018 Business Meeting 6. Approval of Minutes of the August 29, 2018 Work Session OTHER ITEMS: Letter to Oregon State Historic Preservation Office: Zechariah Heck, Community Development Department presented a letter for the Board's consideration of their input on the Central Oregon Canal historic district nomination for national register of historic places and the deadline is this Wednesday. The nomination is for the Ward Road to Gosney Road segment of the Central Oregon Canal. BAN EY: Move to approve Board's signature HENDERSON: Second VOTE: BAN EY: Yes HENDERSON: Yes DEBONE: Chair votes yes. Motion Carried ACTION ITEMS 7. DELIBERATIONS: Caldera Springs Expansion Anthony Raguine, Community Development Department presented the item and the decision matrix for the Board's consideration for deliberation. Adam Smith, Assistant Legal Counsel presented history on the case. The Board expressed their preferred method to proceed. BOCC BUSINESS MEETING OCTOBER 15, 2018 PAGE 2 OF 3 RECESS: A short recess was taken at 10:39 a.m. to access additional materials and the meeting was reconvened at 10:48 a.m. Mr. Raguine presented an email communication from the applicant that staff presented for the Board for consideration. Both parties are comfortable with all testimony to be considered by the Board today. The decision matrix was reviewed addressing the key issues with discussion and decision points. A draft decision will be presented to the Board for consideration based on the discussion at today's deliberation. Being no further items to come before the Board, the meeting was adjourned at 12:02 p.m. DATED this Day ofoc)�L,2018 for the Deschutes County Board of Commissioners. ANTHONYE E® CHAIR PHILIP G. 4NDERSON, VICE CHAIR BOCC BUSINESS MEETING OCTOBER 15, 2018 PAGE 3 OF 3 01 E S COG 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 10:00 AM, MONDAY, OCTOBER 15, 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. Approval of Minutes of the August 23, 2018 Special Business Meeting 2. Approval of Minutes of the August 27, 2018 Business Meeting Board of Commissioners Business Meeting Agenda Monday, October 15, 2018 Page 1 of 2 3. Approval of Minutes of the August 27, 2018 Work Session 4. Approval of Minutes of the August 28, 2018 Public Hearing 5. Approval of Minutes of the August 29, 2018 Business Meeting 6. Approval of Minutes of the August 29, 2018 Work Session ACTION ITEMS 7. DELIBERATIONS: Caldera Springs Expansion -Jacob Ripper, 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 /meetingcolendar Meeting dates and times are subject to change. If you have question, please call (541) 388-6572. Board of Commissioners Business Meeting Agenda Monday, October 15, 2018 Page 2 of 2 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Business Meeting of October 15, 2018 DATE: October 8, 2018 FROM: Jacob Ripper, Community Development, 541-385-1759 TITLE OF AGENDA ITEM: DELIBERATIONS: Caldera Springs Expansion RECOMMENDATION & ACTION REQUESTED: Pursuant to LUBA and Court of Appeals decisions, the applicant, Pine Forest Development, LLC, requested the Board of County Commissioners ("BoCC") consider the remand of the proposed Caldera Springs Destination Resort Expansion. On remand, the BoCC must determine whether the expansion area will be operated in a manner that is integral to the existing resort, and whether the existing Caldera cabins qualify as overnight lodging units. As part of the remand review, the Applicant proposes to modify the site layout of the expansion area, including the relocation of the Wildlife Mitigation Tract, and the access at Vandevert Road. ATTENDANCE: Anthony Raguine, Senior Planner MEMORANDUM DATE: October 8, 2018 TO: Deschutes Board of County Commissioners ("BoCC") FROM: Anthony Raguine, Senior Planner RE: Deliberations - Caldera Springs Destination Resort (247 -15 -000464 -CU, 247- 18-000009-A) Pine Forest Development, LLC ("Applicant") requests approval to expand the existing Caldera Springs Destination Resort ("Resort"). As the BoCC is aware, this application is on remand from the Land Use Board of Appeals ("LUBA") pursuant to LUBA and Court of Appeals ("Court") decisions which required the County to determine: 1. Will the expansion property be operated and situated in a manner that is integral to the existing Resort?; and 2. Do the existing Caldera Springs "Lock Off' units qualify as "separate" units for purposes of the overnight lodging unit ("OLU") definition? To address the remand issues and the Applicant's desire to expand and relocate the Wildlife Mitigation Tract ("Wildlife Tract"), the BoCC conducted a public hearing on August 29, 2018. Written evidence and testimony was submitted into the record prior to the hearing, at the hearing, and during the post -hearing open written record period. Said evidence and testimony is detailed in the Exhibit list at the end of this memo. PRELIMINARY PROCEDURAL ISSUE In response to the LUBA remand, the Applicant requested the BoCC reopen the record to allow the Applicant to submit new evidence regarding the LUBA remand issues and relocation of the Wildlife Tract. Pursuant to BoCC Order ("Order") No. 2018-050, the BoCC agreed to reopen the record and limit new evidence to: 1. Whether the OLUs are "individual units;" 2. Whether the Caldera Springs annexation area will be operated in a manner "integral" to the remainder of the resort; and 247 -15 -000464 -CU, 247-18-000009-A Page 1 3. The relocation of the Wildlife Tract within the Caldera Springs annexation area. Subsequent to the Order, the applicant submitted supplemental application materials. Included was a request to modify the Resort access onto Vandevert Road, as discussed in greater detail below. This issue was not specifically opened for consideration under the Order. Similarly, as discussed in greater detail below, the Applicant argues that SROA has impermissibly challenged the sewer and water analysis beyond the scope of DCC 22.34.040(C)'. Additionally, other issues beyond the scope of the Order were addressed in either written comments or as testimony presented at the hearing. BOCC DECISION Staff believes evidence and testimony was received that is arguably beyond the scope of the Order and DCC 22.34.040(C). The BoCC must determine whether and to what extent to accept and consider said evidence and testimony. Staff believes it would be prudent to accept and consider all evidence and testimony received to minimize potential procedural error. 11. INTEGRAL TO THE RESORT Pursuant to Deschutes County Code ("DCC") 18.113.025(B), If the applicant chooses to support its proposal with any part of the existing development, ��licant shall demonstrate that the proposed expansion will be situated and managed in a manner that it will be integral to the remainder of the resort. (emphasis added) LUBA found that the Hearings Officer failed to make specific findings that the expansion property will be situated and managed in a manner that that will be integral to the remainder of the Resort. The Applicant proposes the following findings to address this criterion.Z The Annexation Area of Caldera Springs will be operated entirely in conjunction with the operation of the existing resort. In fact, both areas will comprise a single, unified resort, with existing and new amenities available to residents and guests of the entire resort. A guest can elect to golf at the existing Caldera Links and then recreate, eat or relax in the new resort core area proposed for the Annexation Area. Similarly, guests and residents can 1 If additional testimony is required to comply with the remand, parties may raise new, unresolved issues that relate to new evidence directed toward the issue on remand. Other issues that were resolved by the LUBA appeal or that were not appealed shall be deemed to be waived and may not be reopened. z The Applicant refers to the expansion property as'Annexation Area' in their findings. 247 -15 -000464 -CU, 247-18-000009-A Page 2 utilize trails in both areas as a part of their experience. In terms of residents, the Annexation Area will be subject to the same overall CC&Rs that currently govern Caldera Springs. Residents too may elect to utilize recreational features in both areas. Management of the visitor oriented accommodations (e.g., pools, restaurants, meeting areas) will be handled by the same management company. In many ways, the Annexation Area and the existing resort are mirror images of each other, with the entire resort operated as a single, unitary resort. Like Sunriver Resort, which has facilities spread throughout the Sunriver community, Caldera Springs' facilities are situated throughout the entire resort, but operated by one entity. Given that the recreation facilities and Visitor Oriented Accommodations will be located within a single resort area, with connecting roads, paths and open space areas, the County can find that the resort is "situated" in a manner that is integral to the remainder of the resort. Similarly, given that the Annexation Area and the Visitor Oriented Accommodations will be managed by the same entity and that the residences will all be subject to the same CC&Rs, the County can find that the Annexation Area will be "managed" in a manner that is integral to the resort. BOCC DECISION The BoCC must determine if the expansion property will be situated and managed in a manner that that will be integral to the remainder of the Resort. Ill. OLUS AS'SEPARATELY RENTABLE UNITS' Both LUBA and the Court held that for the County to determine that the existing OLUs qualify as "separate rentable units" under ORS 197.435(5)(b)3, individually -owned units "must be, as a factual matter, an accommodation that is both its own separate unit that is rentable separately from other units." Staff addresses both prongs of the LU BA/Court test below. 3 197.435 Definitions for ORS 197.435 to 197.467. As used in ORS 197.435 to 197.467: (5) "Overnight lodgings" means: (b) With respect to lands in eastern Oregon, as defined in ORS 321.805, permanent, separately rentable accommodations that are not available for residential use, including hotel or motel rooms, cabins and time-share units. Individually owned units may be considered overnight lodgings if they are available for overnight rental use by the general public for at least 38 weeks per calendar year through a central reservation system operated by the destination resort or by a real estate property manager, as defined in ORS 696.010. Tent sites, recreational vehicle parks, manufactured dwellings, dormitory rooms and similar accommodations do not qualify as overnight lodgings for the purpose of this definition. 247 -15 -000464 -CU, 247-18-000009-A Page 3 Separate Unit Currently, the 45 existing Caldera cabins include a total of 196 lock -off rooms. These lock -off rooms were approved as the OLUs to meet the minimum requirement of 150 OLUs and the minimum 2.5:1 ratio of residential dwelling units to OLUs. With respect to an OLU meeting the test as a'separate unit,' the Court explained that it is a, ...factual determination of whether the rentable unit is actually a separate unit. Further, we note that 'separate' means 'not shared with another. INDIVIDUAL, SINGLEor'existingbyitself.AUTONOMOUS, INDEPENDENT. LUBA II, slip op 8. Following the Court's decision, LUBA found that the existing OLUs do not meet the test of 'separate unit.' Specifically, LUBA found that the Hearings Officer made no factual determination that the separately rentable cabin lock -off rooms are actually separate units rather than bedrooms in a single cabin. LUBA goes on to state, The Court of Appeals, with the benefit of legislative history regarding the statutes, was unwilling to go so for as to say the overnight rental 'units'..cannot be lock -off rooms in a single-family vacation residence. We therefore are unwilling to adopt that reading of the statues as well. Nevertheless, given the factors articulated by the Court of Appeals and discussed above, we have difficulty imagining what conditions or modifications might allow the individual cabin lock -off rooms, as currently proposed, to qualify as the individual 'units' described in ORS 197.435(5)(b) and ORS 197.445(4). The only thing that is clear is that cabin bedrooms that, are in theory separately rentable and happen to have their own bathroom and lockable inside and outside entrances, but for which there is no evidence have ever been rented separately from the other bedrooms in the cabin, are not appropriately viewed as individual 'units.' Something more will be required to ensure that they are in fact individual units. In response, the applicant argues that the existing OLUs are separate units based on the following additional evidence: Separate key, room number and television for each unit; • Separate entrances and keys allow the occupant of each unit to remain separate from other guests in other units in the same structure; Each unit is provided a parking space; Each unit includes all the elements of a transient accommodation or a "sleeping unit" as defined by the Oregon Structural Specialty Code (,,OSSC")4; 4 A room or space in which people sleep, which can also include permanent provisions for living, eating, and either sanitation or kitchen facilities, but not both. 247 -15 -000464 -CU, 247-18-000009-A Page 4 For these reasons, the applicant argues each existing OLU is "not shared with another" and "exists by itself' independent from other units in the same structure. The applicant states there is no functional or practical difference between two adjoining OLUs and two adjoining hotel rooms. The applicant notes that existing non - Goal 8 resorts use lock -off units. In each instance, the applicant states, lock -off rooms maybe rented separately or combined with the adjoining unit to meet a particular guest's needs. In opposition to the Applicant's rationale, the Sunriver Owners Association ("SROX) reiterates the Court's holding that there is a difference between hotel/motel rooms and the lock -off bedrooms. Specifically, the bedrooms in a single-family residence, whether locked -off or not, are available for residential use and, therefore, cannot qualify as OLUs. SROA also points out that the Applicant uses the same arguments that have already been rejected by LUBA and the Court. For these reasons, SROA argues it would be difficult to arrive at a different conclusion from LUBA and the Court. BOCC DECISION The BoCC must determine, based on evidence in the record, if the existing lock -off rooms in the Resort cabins are a 'separate unit' for the purposes of complying with ORS 197.435(5)(b). If the BoCC determines the lock -off rooms qualify as separate units, then the BoCC must determine whether said lock -off rooms are separately rentable, as discussed below. However, should the BoCC determine that the existing lock -off rooms do not qualify as OLUs because they are not separate units, then the existing overnight accommodations in the Resort cannot be used to meet the minimum 150-OLU requirement for the expansion project. The BoCC can either deny the expansion request or impose a condition of approval requiring the Applicant to ensure at least 150 OLUs within the Resort. As noted above, the 45 existing Caldera cabins include 196 lock -off rooms. Should the BoCC determine that these lock -off rooms do not qualify as OLUs, then each cabin would be counted as an OLU rather than each lock -off room counted as an OLU. The Applicant would be required to build an additional 105 OLUs within the expansion area to reach the 150-OLU minimum (45 existing cabins as OLUs plus 105 additional OLUs). This would be tied to an equal reduction in the total number of residential units allowed in the expansion area. This reduction would allow the total number of new units (residential and OLU) to remain consistent with the conclusions of the traffic, sewer and water studies. 247 -15 -000464 -CU, 247-18-000009-A Page 5 Separately Rentable LUBA found that there is no evidence that the existing OLUs have ever been rented separately. To address this issue, the applicant included a spreadsheet identifying instances where Caldera OLUs have been rented separately from each other. The Applicant's burden of proof ("BoP") explains, "Master Reservations" are instances where the entire Caldera cabin is rented through a corporate, golf package, reunion or othergroup. The guests in the cabin, however, [have] their own unique reservation number and charging privileges. For example, if a large corporate group were to rent all 45 cabins as part of a group retreat for 196 of its employees, the company would hold the master reservation, but each employee would have their own unique reservation number, OLU, and charging privileges associated with their unique suite. Similarly, in a family reunion setting, one family member may reserve several cabins, but each family member would have their own unique reservation number, their OLU accommodation and charging privileges. Over the past 7 years, shared reservations have accounted for an average of 15% of all stays, with a range of 4% to 30%. Whether a single guest reserves all 196 OLUs or whether 196 separate guests book the OLUs, the some number of guests can be accommodated in the existing Caldera Springs overnight units. Additionally, the applicant points out the Resort website allows individual OLUs to be rented in any combination desired by a guest - whether it be a single unit or multiple units. Further, the BoP includes an affidavit from Sunriver Resort which demonstrates that the 196 OLUs managed by the Sunriver Resort are individually rentable through the central reservation service established by Sunriver Resort for Caldera Springs. BOCC DECISION The BoCC must determine whether the existing OLUs at the Resort are separately rentable. Condition of Approval If the BoCC finds the existing lock -off rooms in the Resort are both separate units and are separately rentable, then these rooms qualify as OLUs and the applicant will meet the required 150-OLU minimum for the expansion project. Understanding that a BoCC finding that the existing lock -off rooms qualify as OLUs could be overturned on appeal, the Applicant proposes the following condition of approval to assure the Resort meets the 150-OLU minimum: If the County's decision is appealed and an appellate body determines that the existing overnight lodging units located in the 45 completed cabins at Caldera Springs do not qualify as "separate rentable units" or an appellate body otherwise 247 -15 -000464 -CU, 247-18-000009-A Page 6 concludes that Caldera Springs includes less than 150 overnight lodging units, then the applicant shall, as a part of its final master plan submission, increase the number of overnight lodging units proposed in the expansion area by 105 units (150 required OLUs minus 45 existing cabins = 105 additional overnight lodging units), and decrease the number of single family units by a corresponding amount. The county shall process the final master plan as a Type // administrative decision with notice and an opportunity to appear and appeal the county's decision. As part of the county's final master plan decision the county shall make specific findings and impose any necessary conditions of approval to ensure that the final master plan, as it may be amended, continues to meet DCC 18.113.025(B)(applicability to existing resorts). Should the Applicant be required to construct additional, non -lock -off, 01 -Us in the expansion area, it is unclear to staff how, or if, this changes the sewer and water analysis submitted by the Applicant. (see discussion below) IV. SEWER AND WATER ANALYSIS The relevant approval criteria regarding sewer and water are found under DCC 18.113.070, as follows: K. Adequate water will be available for all proposed uses at the destination resort, based upon the water study and a proposed water conservation plan. Water use will not reduce the availability of water in the water impact areas identified in the water study considering existing uses and potential development previously approved in the affected area. Water sources shall not include any perched water table. Water shall only betaken from the regional aquifer. Where a perched water table is pierced to access the regional aquifer, the well must be sealed off from the perched water table. L. The wastewater disposal plan includes beneficial use to the maximum extent practicable. Approval of the CMP shall be conditioned on applicant's making application to DEQ for a Water Pollution Control Facility (WPCF) permit consistent with such an approved wastewater disposal plan. Approval shall also be conditioned upon applicant's compliance with applicable Oregon Administrative Rules regarding beneficial use of waste water, as determined by DEQ. Applicant shall receive approval of a WPCF permit consistent with this provision prior to applying for approval for its Final Master Plan under DCC 18.113. 0. The resort will be served by an on site sewage system approved by DEQ and a water system approved by the Oregon State Health Division except where connection to an existing public sewer or water system is allowed by the County Comprehensive Plan, such service will be provided to the resort. With these criteria in mind, staff attempts to summarize the arguments on both sides 247 -15 -000464 -CU, 247-18-000009-A Page 7 SROA argues the Applicant's modification of the Conceptual Master Plan and updated sewer and water analyses allow the BoCC to reconsider the adequacy of sewer and water service to the expansion area. SROA further argues the evidence in the record clearly shows that the existing sewer and water systems have acknowledged deficiencies that call into question the ability of Sunriver Water and Sunriver Environmental to provide adequate service to the expansion area, and the impact the proposed expansion would have on water availability and sewer capacity for existing users. For this reason, SROA argues that fire flows and sewer and water capacity must be evaluated again. Additionally, SROA argues that the Applicant has not provided an evidentiary basis for the 0.5 equivalent dwelling unit ("EDU") 5 ratio assigned to OLUs. Further, because LUBA and the Court determined that the existing lock -off rooms do not qualify as OLUs, the Applicant must address how the LUBA/Court finding affects the EDU estimate. To address these concerns, SROA recommends the following conditions of approval: Documentation from an independent third -party professional engineering firm demonstrating that the as -built system meets the existing and projected [through build out of the plat phase] demand for Sunriver, Crosswater and Caldera and the projected demand for the Resort expansion final plat phase, or that system upgrades are planned as part of the final plat phase; 2. Documentation that the sewer system has completed upgrades required by DEQ and any such upgrades are reflected in an as -built sewer and water capacity study; 3. Any sewer and water system upgrades that are necessaryto meet existing and projected [through build out of the plat phase) demand for Sunriver, Crosswater and Caldera and the projected demand for the Resort expansion final plat phase shall be financially assured, or require the Applicant to submit proof of approval from the Oregon Public Utilities Commission to expand Sunriver Water's service territory to include the expanded Resort; and 4. Documentation that the Applicant has obtained a water right from the Oregon Water Resources Department, including any mitigation requirements, in an amount necessary to meet the Resort expansion water supply demand. The Applicant responds that DCC 22.23.040(C)6 limits the BoCC's consideration to evidence and testimony directly related to new evidence submitted by the Applicant 5 For the purposes of estimating sewer and water demand, the sewer and water analysis assumes 1 EDU for each residential unit and 0.5 EDU for each OLU. 6 If additional testimony is required to comply with the remand, parties may raise new, unresolved issues that relate to new evidence directed toward the issue on remand. Other issues that were 247 -15 -000464 -CU, 247-18-000009-A Page 8 on remand. The Applicant acknowledges that the updated sewer and water analyses include one additional EDU. For this reason, the Applicant argues that SROA's challenge should be limited to the evidentiary basis for the 0.5 EDU factor assigned to OLUs and the impact of 1 additional OLU to the sewer and water system. The Applicant points out that Parametria' assigns a 0.5 EDU factor for OLUs based on historic water usage, which is directly related to wastewater production, and that OLUs typically use less water than residential units due to eating out more often, fewer dishes, and less frequent laundry. The Applicant notes that the adequacy of sewer and water capacity was argued by SROA in 2015, addressed by the Hearings Officer, and not remanded by LUBA. For this reason, the Applicant argues SROA may not relitigate the entire sewer and water analysis on remand. With regard to SROA's request forthird-party sewer and water analyses, the Applicant responds that there is no expert testimony to refute the conclusions reached by Parametrix. Additionally, the Applicant objects to a condition of approval requiring the Applicant to financially assure any upgrades by that must be constructed by Sunriver Water or Sunriver Environmental. While the Applicant generally disagrees with SROA's arguments, the Applicant acknowledges SROA's concerns and proposes to address them with the following conditions of approval: 1. Prior to recording the first final plat within the Caldera Springs expansion area, the applicant shall submit a copy of the OPUC order or ruling approving the expansion of Sunriver Water LLC's service territory to include the area proposed to be platted. In no event shall the applicant be permitted to record any final plat within the expansion area if the expansion area has not been .included in Sunriver Water LLC's service territory. 2. The applicant shall be permitted to construct residential and overnight lodging units in an amount not to exceed 100 EDUs (residential unit = 1 EDU; overnight lodging unit = 0.5 EDU) prior to any upgrades to the current wastewater treatment plant. The county shall not issue any certificates of occupancy for any structure beyond 100 EDUs until the applicant has submitted evidence that Sunriver Environmental has completed the treatment plant upgrades identified in the September 18, 2018 email from DEQ and that DEQ has issued an appropriate WPCF permit, amendment or supplement authorizing the operation of upgraded wastewater treatment facilities serving the expansion area. resolved by the LUBA appeal or that were not appealed shall be deemed to be waived and my not be reopened. Reference Applicant's September 12, 2018 rebuttal testimony, which includes the September 12, 2018 Parametrix letter. 247 -15 -000464 -CU, 247-18-000009-A Page 9 BOCC DECISION The BoCC must determine if the information is the record is sufficient to find that the Applicant has met its burden of proof regarding DCC 18.113.070(L), (K) and (N), as detailed above. If no, does the BoCC wish to impose conditions of approval to ensure compliance? Conditions of Approval As noted above, both SROA and the Applicant propose conditions of approval to address sewer and water availability and capacity. Staff recommends the following conditions of approval: 1. Concurrent with each tentative plat application, the Applicant shall provide proof of Oregon Public Utilities Commission approval of the expansion of the Sunriver Water LLC service territory to include the land and uses subject to the tentative plat application. 2. Concurrent with each tentative plat application, the Applicant shall provide proof that Sunriver Environmental LLC has completed the necessary upgrades and has capacity to serve the land and uses subject to the tentative plat application. V. VANDEVERT ROAD ACCESS Pursuant to DCC 18.113.070(G) if the Resort expansion will significantly affect a transportation facility, the decision maker must assure that the development is consistent with the identified function, capacity and level of service of the facility. Pursuant to the Hearings Officer's decision in land use file 247 -14 -000464 -CU, the Resort access at Vandevert Road was conditioned to be limited to construction - related traffic during development of the roads and infrastructure, then gated for emergency -only access thereafter. This condition was added to address concerns regarding vehicles attempting to proceed northbound on Highway 97 from Vandevert Road. As a consequence of the condition, vehicles would be more likely to access northbound Highway 97 from South Century Drive rather than Vandevert Road. Included with the remand application materials is a request from the Applicant to modify the Vandevert access to allow resident -only access, but restrict left -out movements onto eastbound Vandevert Road. This, in turn, would reduce the number of vehicles attempting to proceed northbound onto Highway 97 from Vandevert and direct the bulk of the Resort traffic to South Century Drive. The revised 2018 Traffic Impact Analysis ("TIA") concludes the Vandevert Road access modification would not create significant impacts on the transportation system. 247 -15 -000464 -CU, 247-18-000009-A Page 10 SROA argues the conclusions of the 2018 revised TIA are not consistent with the 2015 TIA. Specifically, SROA notes that the 2015 TIA recommends site traffic be diverted from the Vandevert/Highway 97 intersection until said intersection is closed. Further, the 2015 TIA proposes three options to divert traffic from Vandevert/Highway 97. One of these options was to limit access from the Resort onto Vandevert to construction traffic only.' Additionally, SROA argues the 2018 TIA should have analyzed the effect of the change in site layout on trip distribution. The Applicant responds that the modified expansion proposal does not add any additional trips beyond what was contemplated and reviewed in the original application. The Applicant argues that the Hearings Officer's condition to limit access onto Vandevert to construction and emergency access only is unwarranted. To illustrate this point, the Applicant points out that the 2015 TIA includes an option to restrict outbound left -turn movements from the Resort onto Vandevert as a mitigation measure to reduce traffic at the Vandevert/Highway 97 intersection. Further, the Applicant notes that in the Oregon Department of Transportation's ("ODOT") 2015 comments, they agreed with either restricting the ResortNandevert access to construction and emergency only, or restricting left -out movements at the ResortNandevert access. Finally, the Applicant states that the 2018 revised TIA included a'sensitivity analysis' which routed 40% of trips through the Vandevert Road access. The 2018 revised TIA concluded that even routing 40% of trips through Vandevert, which is more trips than actually anticipated, there would be no change to the findings and conclusions of the 2015 TIA. Both the County Engineer and the Senior Transportation Planner agree with the methodology and conclusions of the 2018 revised TIA. No comments were received from ODOT. BOCC DECISION The proposed modification of the ResortNandevert access was not specifically reopened per the BoCC's Order on remand. The BoCC must determine if this issue can be addressed and whether the proposed modification will assure no significant impacts to nearby transportation systems. VI. SUNRIVER BUSINESS PARK The record includes concerns regarding increased traffic within and adjacent to the Sunriver Business Park. While the Applicant acknowledges there will be an increase in traffic to the area, the Applicant points out that the 2018 revised TIA concludes that intersections near the Sunriver Business Park will continue to operate consistent with county transportation standards. Neither the County Engineer nor the Senior 8 Staff notes that the second option in the 2015 TIA was to restrict left -out movements at the ResortNandevert access, similar to the current proposed modification. 247 -15 -000464 -CU, 247-18-000009-A Page 11 Transportation Planner identified any deficiency with regard to nearby Sunriver Business Park intersections. BOCC DECISION Transportation impacts to nearby Sunriver Business Park intersections was not specifically reopened per the BoCC's Order on remand. The BoCC must determine if this issue can be addressed and whether the proposed expansion will result in any significant impact to Sunriver Business Park intersections. VII. CONSERVATION EASEMENT Central Oregon Landwatch ("LandWatch") has requested that the County accept a conservation easement over the Tract to both protect the tract and provide an enforcement and monitoring mechanism for the Applicant's wildlife -related commitments. The Applicant agrees to this condition of approval. In the Hearings Officer's decision on 247 -15 -000464 -CU, this issue was raised by LandWatch. The Hearings Officer concluded that a conservation easement is not required under DCC 18.113.120. BOCC DECISION The BoCC must determine if it is appropriate to include a condition of approval requiring a conservation easement for the Tract. If yes, staff recommends the condition require the Applicant to submit the draft easement as part of the Final Master Plan application package for review and approval by Planning and Legal Counsel. VIII. EXTERIOR SETBACKS DCC 18.113.060(D)(2) requires a 250 -foot setback from property boundaries to OLUs. The modified expansion map appears to allow OLUs within the required setback. The Applicant agrees to a condition of approval prohibiting OLUs from being sited within the 250 -foot setback. BOCC DECISION The BoCC must determine if a condition of approval is appropriate to ensure compliance with the 250 -foot setback. IX. WILDLIFE PASSGE PAYMENT Oregon Department of Fish and Wildlife ("ODFW") submitted comments requesting a onetime payment of $50,000 to be used by ODFW or other state agency to improve 247 -15 -000464 -CU, 247-18-000009-A Page 12 wildlife passage in the vicinity of the resort pursuant to the "no net loss or net degradation of the resource" standard under DCC 18.113.07(D). The Applicant agrees to this condition. BOCC DECISION The BoCC must determine if a condition of approval is appropriate to address the "no net loss or net degradation" standard. X. WILDLIFE FEEDING Included with ODFW's comments was a request to prohibit feeding of wildlife in the Tract, with the exception of songbirds. The Applicant agrees to this condition of approval. BOCC DECISION The BoCC must determine if a condition of approval is appropriate. XI. 120 -DAY CLOCK Pursuant to ORS 197.860 and 215.435, the 120 -day clockfor final action by the County on remand may be extended up to 365 days if the parties enter into mediation. Per the applicant's burden of proof, the parties entered into mediation from December 17, 2017 to the submittal date of the supplemental application on July 11, 2018. Therefore, the County calculates the first day of the 120 -day deadline beginning on July 12, 2018. The date of the BoCC's deliberations, October 8, 2018, is day 94 of the 120 -day clock. EXHIBITS Evidence and testimony submitted prior to or at the public hearing' A. Steven Hultberg email dated August 27, 2018 re: WA Zone setback B. Steven Hultberg email dated August 27, 2018 re: wildlife passage payment C. Steven Hultberg email dated August 27, 2018 re: wildlife feeding prohibition D. Steven Hultberg email dated August 27, 2018 re: 250 -foot OLU setback E. Ellen Grover email dated August 28, 2018 re: SROA concerns F. Steven Hultberg email dated August 28, 2018 re: conservation easement Post -hearing new evidence and testimony G. Doug Westley email dated September 3, 2018 re: concerns 9 For the purposes of this memo, staff lists and attaches those comments not already addressed in the Staff Report. 247 -15 -000464 -CU, 247-18-000009-A Page 13 H. Paul Dewey email dated September 8, 2018 re: conservation easement I. Ellen Grover email dated September 12, 2018 re: SROA concerns J. Steven Hultberg email dated September 12, 2018 re: Applicant responses Post -hearing rebuttal evidence and testimony K. Cody Smith email dated September 14, 2018 re: Road Department responses L. Peter Russell email dated September 17, 2018 re: Transportation Planner responses M. Steven Hultberg email dated September 19, 2018 re: Applicant rebuttal N. Steven Hultberg email dated September 19, 2018 re: SROA Board Minutes Post -hearing Applicant final legal argument O. Steven Hultberg email dated September 26, 2018 re: Applicant final legal argument Staff submittal P. Decision Matrix 247 -15 -000464 -CU, 247-18-000009-A Page 14 Decision Matrix - Caldera Springs Expansion Issue Description Opposition Comments Applicant Comments Discussion and Decision Points The following issue areas are arguably beyond Staff believes it would be prudent to accept and the scope of the Order: consider all evidence and testimony received to BoCC Order 2018-050 limited the 1. Ability of sewer and water service to be minimize potential procedural error. remand review to the LUBA- provided to the expansion area. Should the BoCC accept and consider all identified issues of'integral' and evidence and testimony submitted to the 1. Scope 'OLUs', along with the relocation of 2. Traffic impacts in and around the Sunriver I Modification of the ResortNandevertsccess is record? of the Wildlife Mitigation Tract. Business Park. arguably beyond the scope of the Order. Review Certain evidence and testimony 1. If yes, then the BoCC can continue reviewing submitted to the record is 3. Conservation easement for the Wildlife the proposal. arguably beyond the scope of the Mitigation Tract. Order. 2. If no, then BoCC must determine which 4. Feeding of wildlife in the Tract. evidence and testimony to reject as outside 5. Onetime wildlife passage payment. the scope of the Order. Will the expansion area be situated and DCC 18.113.025(B): "If the managed in a manner that will be integral to the Existing and new amenities will be available to remainder of the Resort? applicant chooses to support its guests and residents of the entire resort. proposal with any part of the i Expansion area will be governed by the same 1. If yes, then the BoCC can continue reviewing existing development, applicant overall CC&Rs that govern the existing Resort. the expansion. 2. Integral to shall demonstrate that the None. Management of visitor -oriented amenities and Resort proposed expansion will accommodations will be handled by the same 2. If no, then the BoCC must either: a situated and managed in a management company. Existing Resort and manner that it will integral to expansion area will be connected by roads, a. Deny the expansion; or the remainder of thea resort." paths and open space areas. (emphasis added) b. Craft conditions of approval to ensure compliance with this standard. Issue Description Opposition Comments Applicant Comments Discussion and Decision Points Each OLU has its own lockable entrance, key, room number, television, and parking space. Are the existing lock -off rooms in the Caldera Each OLU meets the definition of 'sleeping unit' Springs cabins separate units? under the OSSC. No difference between 2 Pursuant to Court and LUBA LUBA and the Court held that the Legislature adjoining OLUs and 2 adjoining hotel rooms. If 1. If yes, then the Board can continue reviewing decisions, OLUs must be separate made a policy decision that because individual a hotel room qualifies under the statutes as a the proposal. units. Per the Court, this is a rooms (lock -offs) in a cabin or dwelling are separate rentable unit, then the existing 3. Existing factual determination. Further, available for residential use, they are not the Caldera OLUs are also separate rentable units. 2. If no, then the Board must either: OLUs as 'separate' means not shared with same as hotel or motel rooms. The applicant Separate another, or existing by itself. LUBA , offers the same arguments that have already Should the BoCC determine the existing OLUs a. Deny the expansion; or Units ruled bedrooms that are, in been rejected by LUBA and the Court. For these are not separate units, or if an affirmative theory, separately rentable and reasons, the existing Caldera cabins are not decision by the BoCC is overturned on appeal, b. Include a condition of approval to ensure have their own bathroom and separate units. the Applicant recommends a condition of compliance with the 150-OLU minimum lockable entrance are not approval requiring the Applicant to construct and compliance with the single-family individual units. an additional 105 non -lock -off OLUs in the dwelling unit to OLU ratio. (The Applicant expansion area. This would be accompanied by proposes a 2.3:1 ratio where a maximum an equal reduction in residential units in the ratio of 2.5:1 is allowed.) expansion area. Are the existing individual lock -off rooms Master Reservations include rental of the separately rentable? entire cabin or cabins. In these cases, guests in 1. If yes, then the Board can continue lock -off rooms have their own reservation reviewing the proposal. 4. Existing number and charging privileges. In this sense, OLUs are LUBA found that there is no evidence that the existing OLUs None. each lock -off room is separately rentable. Over 2. If no, then the Board must either: Separately have ever been rented separately. the past 7 years, these types of shared Rentable reservations accounted for an average of 15% a. Deny the expansion; or of all stays. Additionally, the Resort website allows individual OLUs to be rented in any b. Include a condition of approval to ensure combination by a guest. the individual lock -off rooms are available to be separately rented. Issue Description Opposition Comments Applicant Comments Discussion and Decision Points Applicant's updated sewer and water analyses SROA's challenge should be limited to the allow BoCC to reconsider the adequacy of evidentiary basis for the 0.5 EDU factor The Hearings Officer ruled that sewer and water service to the expansion area. assigned to OLUs and the impact of 1 sewer and water service can be Evidence in the record clearly shows that the additional OLU to the sewer and water system. Is the Hearings Officer's condition of approval available to the expansion area. A existing sewer and water systems have Parametrix provided a rationale for the 0.5 requiring the Applicant to submit signed sewer condition of approval required the acknowledged deficiencies. Fire flows and EDU factor assigned to OLUs. No expert and water agreements sufficient to ensure Applicant to submit signed sewer sewer and water capacity must be evaluated testimony to refute the conclusions reached by connection to a public sewer system and and water agreements as part of again. No evidentiary basis for the 0.5 EDU Parametrix. adequate provision of water service? Final Master Plan review. ratio assigned to OLUs. Because LUBA and the SROA may not relitigate the entire sewer and 4. Sewer and Should the BoCC determine Court determined that the existing lock -off water analysis on remand because this issue 1. If yes, then the BoCC can continue its review. Water Analysis additional information is rooms do not qualify as OLUs, the Applicant must address how the LUBA/Court finding was not remanded by LUBA. 2. If no, then the BoCC must either: necessary to ensure adequate sewer and water capacity, staff affects the EDU estimate. Applicant objects to a condition of approval a. Deny the expansion; or recommends conditions of SROA recommends conditions of approval requiring the Applicant to financially assure any approval requiring the Applicant requiring the Applicant to submit third -party upgrades by that must be constructed by b. Include conditions of approval to ensure to submit information on sewer analysis of as -built sewer and water systems; Sunriver Water or Sunriver Environmental. connection to a public sewer system and and water system capacity updates as part of each tentative documentation of completed sewer upgrades Applicant recommends conditions of approval adequate provision of water. plat application. required by DEQ; proof of OPUC approval of related to OPUC approval of water service water service territory expansion; and territory expansion and limiting the initial documentation of water rights. phase to 100 EDUs to address sewer capacity. Does the BoCC agree with the Applicant that the proposed modifications at the Applicant modification to allow resident access. Resort/Vandevert access will have no The Hearings Officer included a The Hearings Officer's condition of approval significant impacts on the transportation condition of approval limiting limiting access to construction and emergency system? traffic at the SROA argues the 2015 TIA recommends traffic only is not warranted. 2015 TIA included a tion a o construction Road access to construction and be diverted from the Vandevert/Highway 97 mitigation option to restrict left -out 1. If yes, then the BoCC can continue its review. 5. t emergency vehicle only. intersection. The 2015 TIA included three movements. Road Access Road Access options to divert traffic, one of which was to 2. If no, then the BoCC must either: County Road Department and limit access to construction only. The modified access would restrict left -out Senior Transportation Planner movements. The 2018 revised TIA finds this a. Deny the expansion; or agree with 2018 revised TIA modification would not have any significant methodology and conclusions. impact to existing transportation systems. b. Include a condition of approval to ensure no significant impact to transportation facilites. Issue Description Opposition Comments Applicant Comments Discussion and Decision Points Does the BoCC agree with the Applicant that the proposed expansion will have no significant The proposed expansion will impact on transportation facilities in and increase traffic in the area, around the Sunriver Business Park? including within and around the 6. Sunriver Sunriver Business Park. Concerns were expressed regarding the impact The 2018 revised TIA concludes that 1. If yes, then the BoCC can continue its review. Business of additional traffic from the expansion on intersections near the Sunriver Business Park Park Traffic Neither the County Engineer nor roadways in and around the Sunriver Business will continue to operate consistent with county 2. If no, then the BoCC must either: Impacts the Senior Transportation Planner park. transportation standards. identified any deficiency with a. Deny the expansion; or regard to nearby Sunriver Business Park intersections as a b. Include a condition of approval to ensure result of the expansion. no significant impact to transportation facilities. The Hearings Officer ruled that a conservation easement is not required pursuant to DCC 18.113.120 because the expansion Is it appropriate to include a condition of area is not within the Deer LandWatch requests a condition of approval approval requiring a conservation easement Migration Priority Area. g y requiring the Applicant to record a for the Wildlife Mitigation Tract? 7. Conservation conservation easement over the Wildlife Applicant agrees to a condition of approval Easement Should the BoCC include a Mitigation Tract to both protect the Tract and requiring the conservation easement. q g 1. If es, then include a condition of approval. y pp condition of approval requiring provide an enforcement and monitoring the easement, staff recommends mechanism for the Applicant's wildlife -related 2. If no, then affirm the Hearings Officer's the condition requiring the commitments. finding. Applicant to submit a draft easement as part of Final Master Plan for review by Planning and Legal Issue Description Opposition Comments Applicant Comments Discussion and Decision Points Should a condition of approval be included to DCC 18.113.060(D)(2) requires a require 01-Us to comply with the 250-foot 250-foot setback from 01-Us to exterior property line setback? 8. Exterior exterior property lines. The Applicant agrees to a condition of approval to Setbacks modified Conceptual Master Plan None. ensure compliance with the 250-foot setback. 1. If yes, then include a condition of approval. map shows the potential to site 01-Us inside of this setback. 2. In no, then do not include a condition of approval. ODFW requests a condition of Should a condition of approval be included to approval for a onetime payment require a onetime wildlife passage payment to of $50,000 to be used by ODFW or ODFW? 9. Wildlife other state agency to improve Applicant agrees to a condition of approval to Passage wildlife passage in the vicinity of None. require the onetime payment. 1. If yes, then include a condition of approval. Payment the resort pursuant to the "no net loss or net degradation of the 2. In no, then do not include a condition of resource" standard under DCC approval. 18.113.07(D). Should a condition of approval be included to prohibit feeding of wildlife in the Tract, with the ODFW requests a condition of exception of songbirds? 10.Wildlife approval to prohibit feeding of Applicant agrees to a condition of approval Feeding wildlife in the Wildlife Mitigation None. restricting feeding of wildlife in the Tract. 1. If yes, then include a condition of approval. Tract, with the exception of songbirds. 2. In no, then do not include a condition of approval. Adam Smith From: Anthony Raguine Sent: Thursday, October 4, 2018 12:58 PM To: 'Steven Hultberg' Cc: Adam Smith Subject: RE: Caldera Remand That sounds like a good solution, and one that I'm much more comfortable with. Anthony Raguine I Senior Planner Deschutes County Cog's mun�ty Deve9opment 117 NW Lafayette Ave I Bend, Oregon 97703 Tel: (541) 617-4739 KJOB Let us know how we're doing: Customer Feedback Survey From: Steven Hultberg Sent: Thursday, October 4, 2018 12:33 PM To: Anthony Raguine Cc: Adam Smith Subject: Caldera Remand Anthony, After speaking with Adam, I propose the following: That the staff memo explain to the Board that there were two general areas where the issues and evidence may have exceeded the scope of the board's order re -opening the record, the Vandevert access and the SROA's challenges to the sewer and water systems. Under DCC 22.34.040(A) the "Board shall have the discretion to reopen the record in instances which it deems to be appropriate." Here, because both the applicant and the opponents have raised issues that arguably fall outside the scope of the Board's order and both have submitted evidence to the record in support of their arguments, it would be most appropriate for the Board to use its discretion under DCC 22.34.040(A) to reopen the record to allow for submission of the evidence and testimony currently in the record. This does not mean that the board is technically "reopening" the record at this point. It is merely a reflection by the Board that materials currently in the record and the related testimony will be considered by the Board and are properly part of the record. Does that make sense? Regards, Steve Steven P. Hultberg PO Box 2007 Bend, Oregon 97709 P 541.585.3697 C 541.420.1024 E shultberg(aradlerwhite.com