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2018-487-Minutes for Meeting October 30,2018 Recorded 12/2/2018BOARD OF COMMISSIONERS 1300 NW Wall Street, Bend, Oregon (541) 388-6570 Recorded in Deschutes County Nancy Blankenship, County Clerk CommissionersJournal 12/03/2018 10:28:33 AM CJ2018-487 1,1111,11111111111111111111111111 I -UK KtLUKUINU I HMV UNLY BUSINESS MEETING MINUTES 10:00 AM WEDNESDAY, OCTOBER 31, 2018 BARNES & SAWYER ROOMS Present were Commissioners Tammy Baney, Phil Henderson and Anthony DeBone. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County Counsel; and Sharon Keith, Board Executive Assistant. Several citizens and 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.iqm2.com/Citizens/Default.aspx CALL TO ORDER: Chair DeBone called the meeting to order at 10:00 a.m. PLEDGE OF ALLEGIANCE: CITIZEN INPUT: None were offered CONSENT AGENDA: No items included BOCC BUSINESS MEETING OCTOBER 31, 2018 PAGE 1 OF 4 ACTION ITEMS: 1. PUBLIC HEARING: Juniper Ridge Annexation by City of Bend into Bend Park & Recreation District, Consideration of Order No. 2018-066 County Counsel Dave Doyle and Michelle Healy, Bend Park & Recreation District presented the item. Hearing no testimony, Commissioner DeBone closed the public hearing. HENDERSON: Move approval BAN EY: Second VOTE: HENDERSON: Yes BAN EY: Yes DEBONE: Chair votes yes. Motion Carried 2. Consideration of Board Signature of Document No. 2018-706, Decision Approving the Caldera Springs Destination Resort Expansion Anthony Raguine, Community Development Department presented the item. Commissioner Henderson made suggestions for language revisions. At this time, the Board took time to receive the trick -or -treaters from the Munchkin Manor day care children. The meeting then resumed. The Board expressed concern of the language of $50,000 being owed to ODFW. Adam Smith, Assistant Legal Counsel explained language may be made to explain this is not necessary or required for the Board's finding. Mr. Raguine reviewed the recommended edits expressed by the Board. The revised document will be presented at the Work Session this afternoon. BOCC BUSINESS MEETING OCTOBER 31, 2018 PAGE 2 OF 4 3. DELIBERATIONS: Marijuana Text Amendments - Medical Tanya Saltzman, Community Development Department presented the item. Commissioner DeBone inquired if any medical grow owner is interested in giving input on this process. Nick Lelack, Community Development Department reported there has not been any communication other than if they were converting from medical to recreation. Commissioner Baney inquired if medical grow operators could be asked for voluntary compliance with Deschutes County regulations. County Administrator Anderson suggested an incentive process for reduced fee to go through the compliance process in a specified timeframe. From House Bill 3400 the Board of Commissioners can impose time, place, and manner regulations. Commissioner Baney suggested creating a press release asking for volunteers for a committee. Community Development Department had asked Oregon Health Authority for information on location of the medical grows and they were unable to provide the addresses. Commissioner Baney suggested reaching out to OHA again and ask for zip codes for the medical grows in order to understand where the businesses are concentrated. Commissioner Henderson requested a Work Session with the Code Enforcement Team for conversations on investigations. A work session will be scheduled for December. OTHER ITEMS: Community Development Department Director Nick Lelack reported on an incident of transportation of hemp from Willamette Valley and to a property for drying in Deschutes County. CDD is reaching out to the Oregon Department of Agriculture regarding licensure and transportation of crops. Citizens are expressing concern. BOCC BUSINESS MEETING OCTOBER 31, 2018 PAGE 3 OF 4 ADJOURN Being no further items to come before the Board, the meeting was adjourned at 11:25 a.m. DATED this -2(e Day of /vo✓ e 2018 for the Deschutes County Board of Commissioners. RECORDING SECRETARY BOCC BUSINESS MEETING /1.-0/1„ ANTHONY DEBONE, CHAIR PHILIP G. 1- ENDERSON, VICE CHAIR TAMMY BANEY, CO SSIONER OCTOBER 31, 2018 PAGE 4 OF 4 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, WEDNESDAY, OCTOBER 31, 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 ACTION ITEMS Board of Commissioners Business Meeting Agenda of 2 Wednesday, October 31, 2018 Page 1 1. PUBLIC HEARING: Juniper Ridge Annexation by City of Bend into Bend Park & Recreation District, Consideration of Order No. 2018-066 - David Doyle, Legal Counsel 2. Consideration of Board Signature of Document No. 2018-706, Decision Approving the Caldera Springs Destination Resort Expansion - Anthony Raguine, Senior Planner 3. DELIBERATIONS: Marijuana Text Amendments - Medical - Tanya Saltzman, Associate 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, October 31, 2018 Page 2 1 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 31, 2018 DATE: October 24, 2018 FROM: Anthony Raguine, Community Development, 541-617-4739 TITLE OF AGENDA ITEM: Consideration of Board Signature of Document No. 2018-706, Decision Approving the Caldera Springs Destination Resort Expansion RECOMMENDATION & ACTION REQUESTED: Pursuant to a Land Use Board of Appeals remand of a County Hearings Officer's approval of the Caldera Springs Destination Resort expansion in land use file 247 -15 -000464 -CU, the Board of County Commissioners ("BoCC") held a public hearing on August 29, 2018. Subsequent to the public hearing, the BoCC conducted deliberations on October 15, 2015. As a result of the deliberations, the BoCC approved the proposed resort expansion. Planning staff prepared a draft decision for the BoCC's consideration. ATTENDANCE: Anthony Raguine, Senior Planner; Adam Smith, Assistant Legal Counsel Packet Pg. 3 For Recording Stamp Only DECISION OF THE BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES COUNTY FILE NUMBERS: APPLICANT/ OWNER: APPLICANT'S ATTORNEY: PROPOSAL: STAFF REVIEWER: PUBLIC MEETINGS: RECORD CLOSED: Document No. 2018-706 247 -15 -000464 -CU, 247-18-000009-A Steve Runner Pine Forest Development, LLC Sunriver Resort Limited Partnership P.O. Box 3589 Sunriver, OR 97707 Steven Hultberg Radler White Parks & Alexander LLP PO Box 2007 Bend, Oregon 97709 Conditional use permit application to expand the Caldera Springs Destination Resort ("Resort") to include the subject property. The annexed property will include a maximum of 340 single-family residences, a maximum of 150 additional overnight lodging units ("OLUs"), recreation facilities and additional resort core amenities. As part of this application, the applicant seeks to modify the Caldera Springs Conceptual Master Plan and ratio of single-family residences to overnight lodging units from 2:1 to 2.3:1. Anthony Raguine, Senior Planner August 29, 2018 (Public Hearing) October 15, 2018 (Deliberations) September 26, 2018 at 5:00 pm Page 1 1. SUMMARY OF DECISION: In this decision, the County Board of Commissioners ('BoCC") considers the request by Pine Forest Development, LLC ("Applicant") to expand the Resort to include a 614 -acre property east of the existing Resort ("Annexation Area"). The matter before the BoCC is on remand from the Oregon Land Use Board of Appeals ("LUBA"). On remand from LUBA, the BoCC was required to determine whether the existing OLUs located in the existing Resort are "separate rentable units" under ORS 197.445(4) and whether the Annexation Area will be situated and operated in a manner that is "integral" to the remainder of the Resort. For the reasons discussed below, the BoCC concludes that the existing OLUs qualify as "separate rentable units" and that the Annexation Area would be operated in a manner that is "integral" to the remainder of the Resort. In addition, in connection with a settlement agreement entered into by the Applicant and the prior appellant, Central Oregon LandWatch ("Landwatch), the Applicant sought to modify the original proposal in several ways. First, the Applicant relocated the Wildlife Mitigation Tract ("Tract") to an east -west orientation and proposes a number of conditions related to management of the Tract. Second, the Applicant increased the number of OLUs in the Annexation Area and decreased the number of single- family units by a corresponding amount. Third, the Applicant sought to modify a condition of approval related to the Vandevert access point. The BoCC approves each request. 11. APPLICABLE STANDARDS AND CRITERIA: Title 18 of the Deschutes County Code ("DCC") Chapter 18.40, Forest Use Zone - F2 Chapter 18.80, Airport Safety Combining Zone - AS Chapter 18.84, Landscape Management Combining Zone - LM Chapter 18.88, Wildlife Area Combining Zone - WA Chapter 18.108, Urban Unincorporated Community Zone - Sunriver Chapter 18.113, Destination Resorts - Destination Resort Chapter 18.128, Conditional Use Permits Title 22, The Deschutes County Land Use Procedures Ordinance Title 23, The Deschutes County Comprehensive Plan Chapter 23.84, Destination Resorts Chapter 23.76, Energy Oregon Revised Statute (ORS) Chapter 197.435 to 197.467 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 2 III. BASIC FINDINGS: The BoCC adopts and incorporates by reference the code interpretations, findings of fact, and conclusions of law set forth in the following parts of the August 28, 2018 Staff Report ("Staff Report"), Exhibit A of this Decision: Section II Basic Findings, subsections A (Location), B (Zoning and Plan Designation), C (Site Description), D (Proposal), E (Surrounding Land Uses and Zoning), F (Land Use History), G (Public Agency Comments), H (Public Comments), I (Review Period). IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW The BoCC adopts and incorporates by reference the code interpretations, findings of fact, and conclusions contained in the Staff Report, Section III. Findings, except for the findings relating to the DCC Sections identified below, Section III (Findings and Conclusions). To extent that there is an inconsistency or conflict between the adopted elements of the Staff Report and the findings, interpretations or conclusions set forth below in this Decision, the terms of this Decision shall control. For purposes of consistency with the Staff Report, the section references below refer to the specific section references in the Staff Report. The BOCC also adopts and incorporates by reference the Hearings Officer's decision dated April 15, 2016 and any interpretations of the Deschutes County Code set forth in the decision, attached as Exhibit B to this Decision. To the extent there are any inconsistencies or conflicts between this Decision and the Hearings Officer's decision, the terms of this Decision shall control. Preliminary Procedural Issues 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 3. The relocation of the Wildlife Tract within the Annexation Area. Subsequent to the Order, the Applicant submitted supplemental application materials. Included was a request to modify the Resort access onto Vandevert Road. This issue was not specifically opened for consideration under the Order. Similarly, as discussed in greater detail below, the Applicant argues that Sunriver Owners Association ("SROA") has impermissibly challenged the sewer and water analysis beyond the scope of DCC 22.34.040(C)1. Finally, other issues beyond the 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 3 scope of the Order were addressed in either written comments or as testimony presented at the hearing. Under DCC 22.34.040, the "Board shall have the discretion to reopen the record in instances in which it deems appropriate." The BoCC concludes that it will use the discretion permitted under DCC 22.34.040 to allow the introduction and consideration of all evidence submitted to the record in this matter. The BoCC notes that counsel for both the SROA and the Applicant were present during BoCC deliberations on October 15, 2018 and both parties consented to the BoCC's decision to admit and consider all evidence submitted into the record. Section 18.113.025. Application to Existing Resorts Expansion proposals of existing developments approved as destination resorts shall meet the following criteria: A. Meet all criteria of DCC 18.113 without consideration of any existing development; or B. Meet all criteria of DCC 18.113 for the entire development (including the existing approved destination resort development and the proposed expansion area), except that as to the area covered by the existing destination resort, compliance with setbacks and lot sizes shall not be required. If the applicant chooses to support its proposal with any part of the existing development, applicant shall demonstrate that the proposed expansion will be situated and managed in a manner that it will be integral to the remainder of the resort. FINDING: The Applicant elected to rely on subsection (B) above, which requires the Applicant to demonstrate that the existing resort and the Annexation Area together will meet the overall requirements of DCC 18.113. Two elements of this standard are at issue: (1) whether the existing OLUs in Caldera Springs qualify as 194 OLUs by counting each lock -off unit as a separate OLU and, (2) whether the Annexation Area will be operated in a manner that will be integral to the remainder of the Resort. At the outset, the BoCC finds that the Applicant has not proposed the use of any lock -off units in the Annexation Area. Consequently, the sole question for purposes of OLU analysis is whether the existing 45 overnight lodging structures include 196 "separate rentable units for overnight lodging" or 45 "separate units for overnight lodging" as required by ORS 197.445(4). Under DCC 18.113.025(B), if the 45 overnight lodging structures include 196 "separate rentable units for overnight lodging" then the Annexation Area will not require additional OLUs to make up for 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 4 any deficit in OLUs in the existing Resort. If, on the other hand, the existing Resort only includes 45 "separate rentable units for overnight lodging," then the Applicant will be required to increase the number of proposed OLUs in the Annexation Area such that the existing Resort and the Annexation Area, together meet the minimum requirement of ORS 197.445(4) and DCC 18.113.060(A)(1). The BoCC's analysis begins with the test set forth by the Court of Appeals in Central Oregon Landwatch v. Deschutes County, 285 Or App 267 (2017) ("Caldera 11"). In Caldera ll, the Court concluded that individually owned units "to qualify as 'overnight lodgings,' must be, as a factual matter, an accommodation that is both its own 'separate' unit that is rentable separately from other units." Caldera 11 at 294. The Court went on to say that there must be evidence in the record that the "unit is in fact separate and rentable separately from other units[.]" Based on the evidence and testimony in the record, the BoCC finds that the 45 overnight lodging structures include at least 150 units that are separate, individual, autonomous and independent units. Moreover, based on the evidence in the record, the BoCC finds that the units are "rentable separately from other units." Id. Are the Units "Separate"? First, each OLU has a separate outside entrance so that an individual guest may enter the unit "separate" from the remainder of the house. Each unit has a separate key, unique to the unit so that only the registered guest may open a locked door. Thus, even if the remainder of the cabin was rented by one or more unrelated guests, a guest renting an individual unit could enter and exit a unit without any contact with any other guests. Similarly, because each unit is separately keyed like a hotel or motel room, no other guest staying in the structure may enter into another guest's quarters either through the outside entrance or the interior connecting door. The separate entrance for each unit has its own individual unit number (e.g., 24-C), clearly identifying the unit as separate from other attached units. Parking spaces for each OLU are provided and used in common with other guests adjacent to each structure. Each unit has a separate, private bathroom, identical to a hotel or motel room. Each unit has a separate, individual sleeping area, with a variety of sleeping options. Each unit has a television allowing guests to relax in their unit separate from other guests. Each unit, therefore, is "not shared with another" and "exists by itself" independent from other units in the same structure. There is no functional or practical difference between two adjoining OLUs and two adjoining hotel rooms. Both units are separate from adjoining units in the sense that they are independent and include all of the required elements of a transient accommodation or a "sleeping unit" as defined by the Oregon Structural Specialty 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 5 Code: "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." Clearly, if a hotel room qualifies under ORS 197.445(4)(b) as a "separate rentable unit" then so too do the existing Caldera Springs OLU's which share the exact same features as a hotel or motel room. In any instance where a structure is occupied by separate guests, similar to an adjoining hotel room, there are interior doors which effectively separate the various OLUs to permit guests to maintain their privacy in their own OLU. In such instances there are no physical connections between the units or other interaction between guests while they are in their own unit. Each OLU operates independent of the other units in a manner exactly the same as adjoining hotel rooms. Under the "separate" test, if two adjoining hotel rooms can qualify as two "separate rentable units for overnight lodging" under ORS 197.445(4), then there is no basis under Caldera 11 to conclude that two adjoining lock -off rooms do not similarly qualify as "separate." In Caldera ll, the Court concluded that, the lock -off rooms are not part of an establishment that provides services or hospitality associated with hotels or motels. That is, a 'hotel' is a 'building of many rooms chiefly for overnight accommodation of transients and several floors served by elevators' that includes features such as a lobby, meeting rooms, restaurants, and personal services. A 'motel' is an 'establishment which provides lodging and parking and in which the rooms are usually accessible from an outdoor parking area.' The Caldera Cabins, which are single-family residences, do not offer the amenities or services of a commercial, overnight -lodging establishment. Caldera Il at 290. The record before the BoCC includes more information than was apparently before the Court. The existing OLUs are located centrally in the Caldera Springs resort core, situated around a series of recreational lakes, adjacent to tennis courts, golf links, a pool, restaurant, meeting rooms and fitness center—all typical and required features for a destination resort. These features are adjacent to and within a short walking distance from the OLUs. Resort amenities available to Caldera Springs registered guests, include complimentary access to (1) the Quarry Pool, (2) tennis and pickle ball, (3) cruiser bikes and watercraft, (4) Caldera Links, (5) Sage Springs Spa and many other features. Guests also have 24/7 resort concierge services, complimentary shuttle services and housecleaning services. While the cabins are not located in a multi -floor building served by elevators, the resort amenities available to Caldera Springs guests exceed those typically found in a hotel. Resort amenities include the Lakehouse (lobby & meeting rooms), Zeppa Bistro (restaurant), Quarry Pool (recreation facility), Quarry Fitness Center (personal services). In comparison to a "motel" the Caldera Springs OLU's qualify as an "establishment which provides lodging and parking and in which the rooms 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 6 are usually accessible from an outdoor parking area." As described in detail above and in the attached exhibits, each OLU structure includes an outdoor parking area with direct outdoor, private access to each OLU. While the BoCC acknowledges that hotels and motels qualify as "overnight lodgings" under the first sentence of ORS 197.435(5)(b) and "individually owned units" are described in the second sentence of ORS 197.435(5)(b), the BoCC finds that there is no practical difference between hotel and motel rooms and the services offered at such facilities and the existing Resort OLUs. Again, if the test under Caldera 11 is a factual determination of whether a unit is separate from another unit, the comparison between a hotel or motel room and a lock -off unit is appropriate. As a practical matter, had the Resort elected to construct individual structures, each of which was the exact same size with the same layout as the existing OLUs, but instead of having internal connections were connected through an outdoor breezeway, there could be no argument that such units are not "separate." The BoCC finds the distinction between an outdoor connection and an interior connection is a distinction without a practical difference. Both units would serve the same identical function and would serve the same number of overnight guests. Both LUBA and the Court appeared to believe that the provision of lock -off units somehow reduced the number of actual overnight lodging units available to the public. A hotel or motel that provides 196 "sleeping areas" as defined by the building code provides the exact same number of "sleeping areas" as are provided in the 45 Caldera Cabins. Similar in every respect to a hotel or motel room which provide a variety of sleeping arrangements (e.g., king bed, queens, sleeper sofas), the existing OLUs include a variety of sleeping options designed to serve the needs of a particular guest. Consequently, a 196 -room motel would serve the exact same number of guests as do the 45 cabins with 196 separate OLUs. The BoCC finds that there is no basis to conclude that somehow the 196 OLUs at the resort would attract fewer guests than would a 196 -room motel. In fact, the record demonstrates that the opposite is true. The record includes testimony from the Managing Director of Sunriver Resort which concludes that the target guest for Caldera Springs is a family, an extended family or a group of friends. Given the choice between renting five motel rooms with no ability to interact with their family members or renting five OLUs with the ability to connect with their family members or friends, the target guest at the Resort will choose the latter. There is no evidentiary support to conclude that a 196 -room motel would further the legislative policy of attracting visitors more than do the existing OLUs. Are the Units "Separately Rentable"? Both LUBA and the Court also expressed concerns that the prior record did not include evidence that the OLUs were capable of being "rentable separately from 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 7 other units." Caldera 11 at 294. The record includes a spreadsheet identifying instances where the individual OLUs have been rented separately from each other. "Master Reservations" are instances where the entire Caldera cabin is rented through a corporate, golf package, reunion or other group. The record demonstrates that each guest in a separate OLU, has their own unique reservation number or "guest folio" 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. According to the Applicant, over the past 7 years, shared reservations accounted for an average of 15% of all stays, with a range of 4% to 30% depending on the year. Whether a single guest reserves all 196 OLUs or whether 196 separate guests book the OLUs, the same number of guests can be accommodated in the existing overnight units. In addition to this historic evidence, the record includes a printout from the Caldera Springs website which demonstrates that the individual OLUs may be rented in any combination desired by a guest. If a guest needs one OLU, they can rent one OLU. If they would like two OLUs or the entire suite of OLUs in a cabin, they are free to rent accordingly. In addition, the record includes an affidavit from Sunriver Resort which demonstrates that the 156 OLUs managed by the Sunriver Resort are individually rentable through the central reservation service established by Sunriver Resort for Caldera Springs. The BoCC again acknowledges that there is a difference under the statute between hotel rooms and individually owned units. That said, the BoCC finds no practical difference between a family member reserving four adjoining hotel rooms and the same family member reserving an entire structure that includes four separate units. In both instances, the four units qualify as "separate rentable units" under ORS 197.445(4). To the extent that the Board's decision is appealed and an appellate body determines that, as a factual matter, the existing OLUs do not qualify as "separate rentable units" under ORS 197.445(4), then the majority of the Board, on a 2-1 vote, believes that the condition of approval detailed below is appropriate and ensures that the overall Resort will meet the initial minimum 150 OLU requirement. After the Applicant provides additional OLUs to "make up" for any deficit, the Applicant will then be required to maintain the appropriate ratio between overnight lodging units and single-family units. 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 8 Condition of Approval 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 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 with notice pursuant to DCC 22.20.020. 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). Integral to the Resort DCC 18.113.025(B) requires the County to find that expansion areas adjacent to existing resorts be "situated and managed in a manner that it will be integral to the remainder of the resort." The Annexation Area will be operated entirely in conjunction with the operation of the existing Resort. 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 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 BoCC finds 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 - 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 9 oriented accommodations will be managed by the same entity and that the residences will all be subject to the same CC&Rs, the BoCC finds that the Annexation Area will be "managed" in a manner that is integral to the resort. C. Chapter 18.113. Destination Resorts Zone - DR 1. Section 18.113.050. Requirements for conditional use permit and conceptual master plan applications. The CMP provides the framework for development of the destination resort and is intended to ensure that the destination resort meets the requirements of DCC 18.113. The CMP application shall include the following information: 8. Further information as follows: 2. A traffic study which addresses (1) impacts on affected County, city and state road systems and (2) transportation improvements necessary to mitigate any such impacts. The study shall be submitted to the affected road authority (either the County Department of Public Works or the Oregon Department of Transportation, or both) at the same time as the conceptual master plan and shall be prepared by a licensed traffic engineer to the minimum standards of the road authorities. FINDING: In addition to the findings of the Staff Report under this section of the Staff Report, the BoCC adopts the following findings: The Hearings Officer imposed a condition of approval restricting the Vandevert access point to construction and emergency access only. In its remand application, the Applicant requested that the BoCC modify this condition of approval to permit construction, emergency and homeowner access via the Vandevert access point, with the limitation that vehicles exiting the Resort would be limited to right turns only. The BoCC finds that this option was originally proposed by the Applicant in its original application and was supported by the Oregon Department of Transportation ("ODOT"). In written and oral testimony, the SROA opposed the modification to the condition of approval. In particular, the SROA argued that the modification was inconsistent with the Applicant's 2015 Transportation Impact Analysis ("TIA") and an October 15, 2015 Technical Memorandum. The BoCC notes that the SROA did not submit any expert testimony on the issue. Moreover, the BoCC notes that evidence in the record from 2015 expressly identifies restricted turn movements at Vandevert Road as an appropriate mitigation option supported by ODOT. Based on expert testimony demonstrating that a limited access point on Vandevert Road, with an 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 10 appropriate turn restriction, will not increase safety or congestion impacts at the Vandevert/Highway 97 intersection, the Applicant proposes a modification to the Vandevert access. On September 6, 2018 the Applicant's traffic engineer, Kittelson & Associates ("KAI") submitted a supplemental traffic analysis addressing the Vandevert access point. The supplement included a sensitivity analysis which assessed the Vandevert access point and assumed approximately 40% of the trips utilized the Vandevert access point based on the relocated homesites in the Annexation Area. The purpose of this sensitivity analysis was to ensure that the conclusions set forth in the original transportation analysis remained sound and would support the removal of a condition of approval imposed by the Hearings Officer restricting the Vandevert access point to construction and emergency access only. The September 6, 2018 KAI supplement concludes that based "on the revised analysis there are no changes to the original report findings or recommendations.""Though full access movements at the Vandevert access would meet operational standards, we recommend implementing the southbound left -turn restrictions to strongly encourage users towards S Century Drive and away from turning movements from Vandevert Road onto US 97." The BoCC notes that the SROA did not provide any response to the September 6, 2018 KAI supplement nor is there any evidence in the record which refutes the KAI supplement. The BoCC notes the Staff Report includes comments from the County's Senior Transportation Planner, Peter Russell and the County's Road Department addressing concerns with the Vandevert access point. The BoCC concludes that the September 6, 2018 KAI supplement addresses the concerns raised in the Staff Report. The record includes the following from a September 16, 2018 email from Peter Russell: I have reviewed the additional traffic memo regarding the Caldera Springs access to Vandevert Road. I agree with the traffic memo's methodology, findings and recommendations. The applicant's traffic memo proposed restriction to prohibit traffic exiting the resort via the Vandevert access from turning left to go east should be made a condition of approval. Consequently, the BoCC relies on the only expert testimony in the record and concludes that it is appropriate to modify the condition of approval imposed by the Hearings Officer in 2015 to permit the use of the Vandevert access point to construction, emergency and homeowner access only, together with the requirement to restrict turn movements at the access point. The BoCC adopts the following condition of approval: 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 11 Egress from the resort at the Vandevert Road access point shall be limited to homeowner, emergency and construction -related traffic only. Turning movements out of the resort shall be limited to right turns only until the Vandevert Road/Highway 97 intersection is either closed or limited to right in/right out only. Prior to construction, the County Road Department shall approve the turn restriction design. Lastly, there was testimony that Resort traffic would affect transportation operations in the vicinity of the Sunriver Business Park. The Board finds that the testimony did not include any contrary supporting evidence or otherwise challenge the transportation study, its supplements or the conclusions set forth in the studies. The Board finds that, while there will be additional transportation impacts caused by the addition of new Resort traffic, the transportation studies demonstrate that intersections near the Sunriver Business Park will not fall below established County standards. There is no contrary evidence in the record. 2. Section 18.113.060. Standards for Destination Resorts. D. A destination resort shall, cumulatively and for each phase, meet the following minimum requirements: 2. Exterior setbacks. a. Except as otherwise specified herein, all development (including structures, site obscuring fences of over three feet in height and changes to the natural topography of the land) shall be setback from exterior property lines as follows: i. Three hundred fifty feet for commercial development including all associated parking areas; ii. Two hundred fifty feet for multi family development and visitor oriented accommodations (except for single family residences) including all associated parking areas; iii. One hundred fifty feet for above grade development other than that listed in DCC 18.113.060(G)(2)(a)(i) and (ii); iv. One hundred feet for roads; v. Fifty feet for golf courses; and vi. Fifty feet for jogging trails and bike paths where they abut private developed lots and no 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 12 setback for where they abut public roads and public lands. b. Notwithstanding DCC 18.113.060(G)(2)(a)(iii), above grade development other than that listed in DCC 18.113.060(G)(2)(a)(i) and (ii) shall be set back 250 feet in circumstances where state highways coincide with exterior property lines. c. The setbacks of DCC 18.113.060 shall not apply to entry roadways and signs. FINDING: Based on staff's review of the submitted Concept Master Plan, the area designated as 'Visitor Oriented Accommodations/Resort Core' observes a setback of Tess than 200 feet from exterior property lines. The Applicant's testimony acknowledges that areas on the revised Concept Master Plan map show areas designated for OLUs within 200 feet of exterior Resort property lines. The Applicant, however, has indicated that the OLU structures themselves will meet the 250 -foot setback requirement. The BoCC concludes that it is appropriate to impose the following condition of approval to ensure that all OLU structures meet the 250 -foot setback. Condition of Approval Prior to issuance of any building permit for any Visitor Oriented Accommodation (other than single family residences), the Applicant shall demonstrate that all Visitor Oriented Accommodations (other than single family residences) meet the 250 -foot setback imposed by DCC 18.113.060(D)(2)(a)(ii). 4. Section 18.113.070. Approval Criteria. In order to approve a destination resort, the Planning Director or Hearings Body shall find from substantial evidence in the record that: D. Any negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource. FINDING: In written comments, the Oregon Department of Fish and Wildlife ("ODFW") raised two issues. First, ODFW requests the Decision include a condition of approval requiring the Applicant to pay $50,000 to improve wildlife passage. Second, ODFW requests the Decision include a condition of approval prohibiting the feeding of wildlife, with the exception of songbirds. 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 13 In addition to the findings set forth in the Staff Report, the BoCC concludes that the $50,000 payment to be made by the Applicant to ODF&W to improve wildlife passage in the vicinity of the Resort is not necessary to meet the "no net Toss or net degradation of the resource" standard. The only evidence in the record regarding impacts to fish and wildlife demonstrate that the mitigation actions proposed by the Applicant are sufficient to meet the "no net Toss" standard. No party has challenged the Applicant's compliance with this approval standard. Although the Applicant may have agreed to the $50,000 payment to reach a stipulated settlement with LandWatch, because the condition is not necessary to meet the relevant approval standard, the BoCC declines to impose the payment obligation as a condition of approval. Similarly, the BoCC finds the prohibition on feeding wildlife is not necessary to meet the "no net loss or net degradation of the resource" standard. Consequently, the BoCC declines to impose the requested condition of approval. G. Destination resort developments that significantly affect a transportation facility shall assure that the development is consistent with the identified function, capacity and level of service of the facility. This shall be accomplished by either: 1. Limiting the development to be consistent with the planned function, capacity and level of service of the transportation facility; 2. Providing transportation facilities adequate to support the proposed development consistent with Oregon Administrative Rules chapter 660, Division 12; or 3. Altering land use densities, design requirements or using other methods to reduce demand for automobile travel and to meet travel needs through other modes. A destination resort significantly affects a transportation facility if it would result in levels of travel or access that are inconsistent with the functional classification of a facility or would reduce the level of service of the facility below the minimum acceptable level identified in the relevant transportation system plan. a. Where the option of providing transportation facilities is chosen, the applicant shall be required to improve impacted roads to the full standards of the affected authority as a condition of approval. Timing of such improvements shall be based upon the timing of the impacts created by the development as 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 14 determined by the traffic study or the recommendations of the affected road authority. b. Access within the project shall be adequate to serve the project in a safe and efficient manner for each phase of the project. FINDING: The BoCC incorporates by reference the findings set forth above under DCC 18.113.050(6)(2). 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 be taken from the regional aquifer. Where a perched water table is pierced to access the regional aquifer, the well must be sealed off from the perched water table. FINDING: In written and oral testimony the SROA argued that there is insufficient water to serve the Resort. Water service to the Resort will be provided by Sunriver Water, LLC, an Oregon Public Utility Commission ("PUC") regulated water utility. The BoCC finds that there is conflicting testimony and evidence in the record regarding the adequacy of water supply. The SROA first argued that the Applicant's use of a 0.5 equivalent dwelling unit ("EDU") factor for OLUs is unsupported. In response, the Applicant submitted expert testimony from Parametrix in a September 12, 2018 memorandum explaining the basis for applying a 0.5 EDU factor for OLUs. The Parametrix memorandum explains that the 0.5 EDU factor is based on historic OLU usage and in fact likely overstates actual water and sewer usage by OLUs. Using the 0.5 EDU factor, the revised CMP proposal results in a full build -out demand of 415 EDUs, which is one (1) EDU over and above what was originally proposed by the Applicant (414 EDUs). Based on the 415 EDUs projected for the Annexation Area, testimony from Sunriver Water LLC and Parametrix concludes the Annexation Area will produce a peak day domestic demand of 278 gallons per minute ("gpm"). Sunriver Water further concludes that its existing service territory at buildout, will see a peak day demand of 3,960 gpm. The addition of the Annexation Area to the existing Sunriver Water service territory will result in a peak day demand of 4,238 gpm, and with peak day golf irrigation added results in a total peak day demand of 5196 gpm. 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 15 Sunriver Water has current water rights and pumping capacity of 5,742 gpm, which exceeds peak day demand. Consequently, there is substantial evidence in the record to demonstrate that there is adequate water available for all proposed uses at the Resort. Moreover, given that Sunriver Water has a demonstrated excess of both water supply and pumping capacity, the Applicant argues that the provision of water service to the Annexation Area will not reduce the availability of water to its existing service territory. The water studies take into account full development both within the existing service territory and the Annexation Area, and all conclude that there is sufficient supply and pumping capacity to meet peak day demand for the existing and future service territory. The Applicant also points out that prior to serving the Annexation Area with water service, Sunriver Water will be required to expand its service territory and obtain regulatory approval from the PUC to do so. Because territory expansion is permitted by statute and administrative rule, and because Sunriver Water has demonstrated its willingness to expand the territory and has shown it has sufficient water and pumping capacity to serve the new territory, the Applicant argues that territory expansion is feasible. In deciding whether to grant a service territory expansion, the PUC must "consider at least the current ability of the water utility to serve the expanded area, the demand for service in the expanded area, the impact on existing customers and the availability of alternative service." ORS 758.305. Moreover, PUC rules require Sunriver Water to demonstrate the following prior to service territory expansion: (b) A statement describing the need and reasons for water service in the proposed expanded service territory; (c) The approximate date the water utility plans to begin providing service to the proposed expanded service territory; (d) The proposed rates and charges to customers in the expanded service territory. Include customer growth projections that support the proposed water service rates and charges; (e) A study showing the projected cost to provide service to the proposed expanded service territory. Identify the amount per each operating expense account at full build out; (f) A schedule showing the projected capital structure including the methods of financing the construction and operation of the utility until it reaches 100 percent of the design capacity of the system; (g) Evidence of existing or proposed capacities of the system and facilities to adequately serve the proposed expanded territory. Provide estimated average daily customer demand, customer peak demand, and daily pumping capacity per water source in gallons or cubic feet. If development will be in phases, separate this information by phase; 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 16 (h) A written description of the type of water treatment necessary, if required; (i) A schedule showing the projected cost of the capital improvements necessary to serve the proposed service territory by plant accounts and the expected date the plant is projected to go into service. If the system is to be built in phases, show information for each phase individually; (j) A list of all entities, including affiliates, upon which the applicant is relying to provide funding to the water utility for capital improvement, and an explanation of the manner and amount of such funding, including their financial statements and a copy of all contracts or agreements with the utility. This requirement will not apply to any person or entity holding less than 10 percent ownership interest in the utility; (k) Financial statements demonstrating applicant's financial capability; (I) A statement showing applicant's technical ability or capacity to procure technical skill necessary to provide service; and (m) A statement describing any impact the expansion of service territory may have on existing customers. OAR 860-036-1820. The BoCC considered the record and finds the Hearings Officer's condition of approval requiring the Applicant to submit a signed agreement for water service prior to final master plan approval is sufficient to comply with this criterion.' That said, given the concerns raised by the SROA, the BoCC believes that it is appropriate to impose a new condition of approval. Condition of Approval Prior to or concurrent with each tentative plat in the Annexation Area, the Applicant shall submit a copy of the PUC 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 County approve a tentative plat within the Annexation Area if the Annexation Area has not been included in Sunriver Water LLC's service territory. Lastly, the BoCC acknowledges that under DCC 17.16.100(B), prior to approval of any tentative plat in the Annexation Area the Applicant will be required to demonstrate that the subdivision will not "create excessive demand on public facilities and services, and utilities required to serve the development." Both independently and collectively, based on evidence in the record, the above condition of approval, the future showing required under DCC 17.16.100(B), and PUC regulations, the BoCC concludes that the Applicant met the requirements of DCC 18.113.070(K). Condition of approval number 3 of the Hearings Officer decision dated April 15, 2016. 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 17 L. The wastewater disposal plan includes beneficial use to the maximum extent practicable. Approval of the CMP shall be conditioned on applicant's making application to DEQ for a Water Pollution Control Facility (WPCF) permit consistent with such an approved wastewater disposal plan. Approval shall also be conditioned upon applicant's compliance with applicable Oregon Administrative Rules regarding beneficial use of waste water, as determined by DEQ. Applicant shall receive approval of a WPCF permit consistent with this provision prior to applying for approval for its Final Master Plan under DCC 18.113. FINDING: The SROA contends that the sewage collection and treatment facilities operated by Sunriver Environmental LCC are not sufficient to serve the Annexation Area. Much of the SROA's testimony is focused on upgrades to the existing sewer treatment plant operated by Sunriver Environmental and rely on historic documents dating back decades. During the open record period the Applicant was notified by DEQ that plant upgrades would be required to be completed no later than 2021. With respect to the approval criteria referenced above, the Applicant argues that the Applicant's wastewater treatment plan includes beneficial use to the maximum extent practicable through the use by Sunriver Environmental of wastewater for golf course and crop irrigation. Moreover, because the Applicant will utilize a connection to an existing sewer system provided by Sunriver Environmental, beneficial use of wastewater is limited to the ability of the sewer company to beneficially use wastewater. Considering the evidence and testimony regarding beneficial use, the BoCC affirms the Hearings Officer's finding that re -use of treated effluent by Sunriver Environmental is sufficient to meet the 'beneficial use' standard. Further, the BoCC affirms the Hearings Officer's condition of approval requiring the Applicant to secure approval of a WPCF permit that includes the Annexation Area prior to final plat approval.2 O. The resort will be served by an on-site sewage system approved by DEQ and a water system approved by the Oregon State Health Division except where connection to an existing public sewer or water system is allowed by the County Comprehensive Plan, such service will be provided to the resort. 2 Condition of approval number 4 of the Hearings Officer decision dated April 15, 2016. 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 18 FINDING: Much of the SROA testimony regarding connection to sewer centers on the necessary upgrades to the existing sewage treatment plant—upgrades that will be required by DEQ no later than 2021. The expert testimony submitted by the Applicant concludes that there is sufficient sewage treatment capacity to serve the entire Annexation Area. While there is conflicting testimony in the record, as well as historic evidence of sewer treatment plans and operations, the Applicant argues the most current evidence provided by Sunriver Environmental conclusively demonstrates that, even at full buildout, the existing treatment plant has sufficient capacity to serve the Annexation Area within the parameters of its existing DEQ permits. Moreover, as the record demonstrates, Sunriver Environmental will be required to upgrade its treatment plant as necessary to provide "Class A recycled water." As part of those upgrades, and as required by 18.113.070(L) and conditions of approval, Sunriver Environmental will be required to amend its existing WPCF Permit or seek a new permit. As is the case with the existing WPCF Permit in the record, it will necessarily include a maximum average daily flow to the wastewater treatment plant. The Applicant argues that the upgrade process will further ensure that the treatment plant has sufficient capacity to serve existing and new customers within the Annexation Area. Similar to the water system findings, the BoCC considered the record and finds the Hearings Officer's condition of approval requiring the Applicant to submit a signed agreement for sewer service prior to final master plan approval is sufficient to comply with this criterion. That said, given the concerns raised by the SROA, the BoCC believes that it is appropriate to impose a new condition of approval. Condition of Approval 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. Prior to issuance of any building permit for a residential use or overnight lodging unit beyond 100 EDUs, the Applicant shall submitt evidence that Sunriver Environmental has completed the treatment plant upgrades identified in the September 18, 2018 email from DEQ3 and that DEQ has issued an appropriate WPCF permit, amendment or supplement authorizing the operation of upgraded wastewater treatment facilities serving the expansion area. 3 Attached as Exhibit C to this Decision. 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 19 Remaining Issues The oral and written testimony raised several ancillary issues. The following findings address these ancillary issues. Fire Flows Testimony from the SROA implies that there is insufficient water supply and/or pumping capacity to meet fire flow requirements. As discussed above, the record demonstrates that Sunriver Water has both adequate water supply and pumping capacity to serve the Annexation Area without affecting fire flows within Sunriver. Also as described above, the BoCC finds the condition of approval requiring a signed agreement to provide water service is sufficient to ensure adequate water. Approval Criteria In its written and oral testimony, the SROA generally argues that DCC 18.113.070(1), (K), (N), (0) and (P) are applicable to the modified CMP and impose a generalized standard that requires to resort to "avoid or minimize adverse effects of the resort on surrounding land uses." The BoCC concludes that the approval chteria cited by the SROA do not apply in the manner suggested by the SROA. DCC 18.113.070(1) provides: Adequate public safety protection will be available through existing fire districts or will be provided onsite according to the specification of the state fire marshal. If the resort is located outside of an existing fire district the developer will provide for staffed structural fire protection services. Adequate public facilities to provide for necessary safety services such as police and fire will be provided on the site to serve the proposed development." The BoCC finds the property is within the La Pine Rural Fire Protection District, as required by this standard. DCC 18.113.070(N) provides: Site improvements will be located and designed to avoid or minimize adverse effects of the resort on the surrounding land uses. Measures to accomplish this may include establishment and maintenance of buffers between the resort and adjacent land uses, including natural vegetation and appropriate fences, berms, landscaped areas and similar types of 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 20 buffers; and setback of structures and other developments from adjacent land uses." The BoCC concludes that DCC 18.113.070(N) is focused on the location of on-site improvements (e.g., resort accommodations, recreation facilities) and measures such as screening and buffering to mitigate the potential visual impacts of such improvements. The BoCC also concludes that this approval standard is not tied to sewer and water service or the potential impacts such service may have on "surrounding uses." DCC 18.113.070(P) provides: The destination resort will not alter the character of the surrounding area in a manner that substantially limits, impairs or prevents permitted or conditional uses of surrounding properties." The BoCC concludes that the SROA's testimony is not sufficient to demonstrate why this standard applies to the revised CMP or how the revised CMP fails to meet this standard. The BoCC relies on the findings adopted by the Hearings Officer under DCC 18.113.070(P). V. DECISION For the reasons set forth above, the BoCC approves the Applicant's request and imposes the conditions of approval set forth below. VI. CONDITIONS OF APPROVAL 1. Approval is based upon the application, site plan, specifications, and supporting documentation submitted by the applicant. Any substantial change in this approved use will require review through a new land use application. 2. Conditions of approval 1, 3 - 7, 9 - 10, 13 - 17, and 19 - 24 for land use file 247 -15- 000464 -CU remain in effect. 3. Uses in the Wildlife Mitigation Tract ("WMT"). The only uses permitted within the WMT shall be the access road depicted on the Site Plan and soft walking/hiking paths, as generally depicted on the Site Plan. The following additional restrictions will apply to uses in the WMT: a. Recreation. To offset potential disturbance -or disruption -related indirect effects of humans, the WMT will not include the use of any bicycle, mountain bike or other mechanical vehicles, except as may be reasonably required for wildfire and wildlife treatments within the WMT as 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 21 contemplated by the wildfire and wildlife reports adopted as part of Annexation I. b. Dogs. The CC&Rs for the Resort shall specifically include a requirement that no off -leash dogs shall be permitted in the Resort, unless located within a fenced dog park located within the Resort, but outside the Wildlife Mitigation Tract. c. Access Road Operation. The access road through the WMT shall be designated as a homeowner access road, limited to homeowner and construction traffic only. The access road as depicted on the Site Plan shall be relocated west to be within or immediately adjacent to the powerline easement. No gatehouse or guest station shall be permitted at the access point. Appropriate signage shall be installed directing Resort guests and visitors to the main resort entrance on South Century Drive. Gates shall be installed and maintained as reasonably practical at the south terminus of the Resort road and Vandevert Road; at the interior location set forth on the Site Plan. The gates shall be closed and operable by a key card, vehicle transponders or other similar equipment 24 hours per day. ii. The access road shall be designed in a manner to reduce speeds (including one or more of the following features: sinuous alignment, bulb outs, traffic calming features) and shall be posted with a 20 MPH limit and identified as a wildlife corridor. iii. Educational signage shall be placed in an appropriate location at the boundary of the WMT identifying the area as such, and explaining the need not to disturb habitat or species within the WMT. d. Structures. No structures other than the access road, gates and proposed walking trails as shown on the Site Plan shall be permitted in the WMT. e. Management in the WMT. Consistent with the wildlife management report prepared for the Resort, the following management measures shall be implemented: Rock Outcrops. Rock outcrops and piles provide unique habitat qualities and serve as a keystone habitat niche within the WMT. Accordingly, any management activities should avoid such outcrops and the surrounding vegetation; ii. Snags. Standing snags provide important habitat niches, especially for avian and small mammal species. Accordingly, all existing wildlife snags should be retained, unless they are determined to pose a wildfire hazard. f. Other Habitat Conservation Measures. Vegetation shall be monitored, and weeds and non-native plants will be controlled and eradicated when possible; Brush patches will be maintained in a mosaic pattern to provide various stages of growth so that both cover and forage are provided. 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 22 Vegetation management activities performed in the WMT shall be performed in the fall or spring (outside of deer winter season) when areas are accessible and not under fire restrictions, except that any mowing is not to occur in the spring when there is bird nesting; ii. Ponderosa pine trees (dead and living) will be preserved where possible; iii. Downed Togs will be retained for their wildlife value where possible; iv. Firewood cutting or vegetation alteration beyond that prescribed as management for increased habitat value or as management for wildfire risk, will not be permitted; v. Prior to Final Plat Approval, nest boxes will be installed. Said nest boxes shall be maintained to benefit native bird species; vi. Prior to Final Plat Approval, bat boxes will be installed on trees to benefit native bat species; vii. New fences are prohibited in the WMT; viii. Livestock will not kept or allowed on the property; ix. The proposed development will prohibit the recreational use of off- road motor vehicles within the WMT. Motorized vehicle use in the WMT will only be allowed for management or emergency fire vehicle access; x. The lots that are directly adjacent to the WMT will have 25 -foot setback requirements to protect the wildlife value of the area; xi. A program for proper garbage storage and disposal will be instituted for all resort residences and facilities. The program will be designed to reduce the availability of human -generated food resources to predators and corvids (crows, ravens, and Jays) known to predate other wildlife species; xii. An educational program for local residents will be initiated regarding the native wildlife populations using the WMT and the need to avoid disturbance of species within the WMT. Educational materials will include newsletters, flyers, signage on trails, or other similar outreach tools; xiii. No fireworks of any type will be allowed; xiv. No use of drones will be allowed; and xv. No hunting, discharge of firearms or trapping will be allowed. 4. 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 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 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 23 units), and decrease the number of single family units by a corresponding amount. The county shall process the final master plan with notice pursuant to DCC 22.20.020. 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). 5. 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. Prior to issuance of any building permit for a residential use or an overnight lodging unit beyond 100 EDUs, the Applicant shall submit 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. 6. Egress from the resort at the Vandevert Road access point shall be limited to homeowner, emergency and construction -related traffic only. Turning movements out of the resort shall be limited to right turns only until the Vandevert Road/Highway 97 intersection is either closed or limited to right in/right out only. Prior to construction, the County Road Department shall approve the turn restriction design. 7. Prior to or concurrent with an application for each tentative plat in the Annexation Area, the Applicant shall submit a copy of the PUC 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 County approve a tentative plat within the Annexation Area if the Annexation Area has not been included in Sun river Water LLC's service territory. 8. Prior Condition No. 11 is revised (with underline) as follows: The resort as a whole shall maintain a maximum ratio of single-family dwelling units to overnight accommodation units of 2.3:1. 9. Prior Condition No 12 is revised (with underline) as follows: Individually owned Overnight Lodging Units (OLUs) shall be made available for overnight rental use by the general public for at least 38 weeks per calendar year through one or more central reservation and check-in services operated by the destination resort or by a real estate manager, as defined in ORS 696.010. 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 24 10. Prior condition No. 18 is revised (with underline) as follows: The resort shall comply with the approved Wildlife Report and the 2018 supplement included in connection with the present application, with the 2018 supplement controlling over any conflict between the two reports. 11. Prior to issuance of any building permit for any Visitor Oriented Accommodation (other than single family residences), the Applicant shall demonstrate that all Visitor Oriented Accommodations (other than single family residences) meet the 250 -foot setback imposed by DCC 18.113.060(D)(2)(a)(ii). Dated this day of October, 2018 BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES COUNTY Anthony DeBone, Chair Philip G. Henderson, Vice Chair Tammy Baney, Commissioner THIS DECISION BECOMES FINAL WHEN SIGNED. PARTIES MAY APPEAL THIS DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS DECISION IS FINAL. EXHIBITS A. Staff Report dated August 28, 2018 (without exhibits) B. Hearings Officer decision dated April 15, 2016 C. Larry Brown (DEQ) email dated September 18. 2018 247 -15 -000464 -CU, 247-18-000009-A Document No. 2018-706 Page 25 EXHIBIT A Staff Report August 28, 2018 FILE NUMBER: APPLICANT/OWNER: REQUEST: Mailing Date: Tuesday, August 28, 2018 COMM U 7Y DEVE „OPMENT.: STAFF REPORT 247 -15 -000464 -CU, 247-18-000009-A Steve Runner Pine Forest Development, LLC Sunriver Resort Limited Partnership P.O. Box 3589 Sunriver, OR 97707 Conditional use permit application to expand the Caldera Springs Destination Resort ("Resort") to include the subject property. The annexed property will include a maximum of 340 single-family residences, a maximum of 150 additional overnight lodging units ("OLUs"), recreation facilities and additional resort core amenities. As part of this application, the applicant seeks to modify the Caldera Springs Conceptual Master Plan and ratio of single-family residences to overnight lodging units from 2:1 to 2.3:1. STAFF CONTACT: Anthony Raguine, Senior Planner PUBLIC HEARING DATE: August 29, 2018 I. APPLICABLE CRITERIA Title 18 of the Deschutes County Code ("DCC") Chapter 18.40, Forest Use Zone - F2 Chapter 18.80, Airport Safety Combining Zone - AS Chapter 18.84, Landscape Management Combining Zone - LM Chapter 18.88, Wildlife Area Combining Zone - WA Chapter 18.108, Urban Unincorporated Community Zone - Sunriver Chapter 18.113, Destination Resorts - Destination Resort Chapter 18.128, Conditional Use Permits Title 22, the Deschutes County Land Use Procedures Ordinance Title 23, The Deschutes County Comprehensive Plan Chapter 23.84, Destination Resorts Chapter 23.76, Energy Oregon Revised Statute (ORS) Chapter 197.435 to 197.467 117 NW Lafayette Avenue, Bend, Oregon 97703 I P.O. Box 6005, Bend, OR 97708-6005 (541) 388-6575 cd: deschutes.org www.desr;utes.org/cd 0El II. BASIC FINDINGS A. Location: The subject property has an assigned address of 17800 Vandevert Road, Bend, and is identified as tax lot 103 on Assessor map 20-11. B. Zoning and Plan Designation: The subject property is zoned Forest Use Zone ("F2"). It is within the Airport Safety Combining Zone ("AS") associated with the Sunriver Airport; the Landscape Management Combining Zone ("LM") associated with Highway 97, Vandevert Road and South Century Drive; and the Wildlife Area Combining Zone ("WA") associated with deer migration range. The subject property is also mapped within the Destination Resort ("DR") Combining Zone for Deschutes County. C. Site Description: The irregularly shaped 614 -acre property is undeveloped with a generally level topography. Vegetation on-site consists of a dense cover of lodgepole and ponderosa pine trees. According to the applicant, the 60- to 80 -year-old trees are of various sizes arranged in small groups and dense thickets, with about 25 percent of the groups consisting purely of lodgepole pine. Understory vegetation is bitterbrush, bunchgrasses, and typical high desert vegetation. Several dirt roads and the power line right-of-way cross the site. The site is approximately 250 feet west of Highway 97 at its closest point in the southeastern corner. The property has frontage on South Century Drive along its southwestern property line, and frontage on Vandevert Road along its southern property line. The existing Resort is approximately 390 acres in size and includes 160 overnight lodging units, 320 single family residential lots, and recreation facilities including a pool, clubhouse, golf course and trails. D. Proposal: The applicant is requesting conditional use permit approval to expand the Resort to include the subject property. The annexed property will include a maximum of 340 single- family residences, a maximum of 140 additional overnight lodging units, recreation facilities and additional resort core amenities. In total, the Resort will include 660 single-family residential units and 346 OLUs. The single-family residential units can include traditional single-family homes as well as townhome, condominium or other non -deed restricted units. As part of this application, the applicant seeks to modify the Caldera Springs Conceptual Master Plan and ratio of single-family residences to overnight lodging units from 2:1 to 2.3:1. The expansion will include a new access to the Resort from Vandevert Road. In addition to the above, the applicant requests modifications of the approval related to: 1. Wildlife mitigation tract; 2. Types and number of OLUs; 3. Vandevert Road access; and 4. 100 -foot setback from common areas. 247 -15 -000464 -CU, 247-18-000009-A Page 2 of 31 Finally, the applicant submitted the following supplement evidence to demonstrate that the original studies remain sound: 1. Supplemental Traffic Impact Analysis Memorandum; 2. Supplemental Wildlife Report; and 3. Supplemental Sewage Collection and Water Systems Master Plan Memorandum. For the purposes of this staff report, the 2016 annexation approval by the Deschutes County Hearings Officer is referred to as "Annexation I." The revised annexation proposal is referred to as "Annexation II." The conceptual master plan map for Annexation II is attached as Exhibit A. E. Surrounding Land Uses and Zoning: The site is bounded to the north by the Sunriver Business Park on land zoned Urban Unincorporated Community Zone Sunriver - Business Park District ("SUBP"), and by multi -family residential uses on land zoned Urban Unincorporated Community Zone Sunriver - Multiple Family Residential District ("SURM"). To the east is the Burlington Northern Railroad. Beyond the railroad tracks are vast tracks of undeveloped US Forest Service lands that are zoned Forest Use ("F1"), and Highway 97. To the south, across Vandevert Road are two undeveloped, privately owned, properties zoned F2, and a residential subdivision zoned Rural Residential ("RR10"). Along much of the property's western boundary is the Caldera Springs Destination Resort. As noted above, the property's southwestern boundary is formed by South Century Drive. Across South Century Drive are residential uses on lands zoned F2, including the Crosswater development. To the northwest are residential uses in the Sunriver Resort on lands zoned Unincorporated Community Zone Sunriver - Single Family Residential District ("SURS") and SURM. F. Land Use History: The county approvals associated with the existing Resort are summarized below. Land Use Approval Description CU -05-07 Conceptual Master Plan M-05-01 Final Master Plan ("FMP") TP -05-961 Tentative Plan for up to 320 single-family residential homesites, various future development tracts, rights-of-way, and easements for infrastructure 247 -15 -000464 -CU, 247-18-000009-A Page 3 of 31 SP -05-53 Site Plan for the Resort's first phase including 150 separate rentable units for visitor lodging; eating establishments for at least 100 persons; meeting rooms for at least 100 persons, nine -hole short golf course; three practice golf holes; practice putting green; lake; and clubhouse which will incorporate the eating establishments and meeting rooms SP -06-14 Site Plan for the Resort amenities including fitness/pool center, pool, basketball court, play area, tennis courts, lake expansion, relocated parking area, lawn sports area, and pavilion FPA -06-12 Final Plat approval for TP -05-961 SP -06-52N-06- 16/MA-06-23 Site Plan for overnight lodging units (OLUs) within Tracts 2 and 3; Minor Variance to reduce the parking area setback from 250 feet to 225 feet SP -06-55 Site Plan for a pump station associated with the Resort water feature SP -06-61 Site Plan for OLUs in Tract 1, roadway and driveway areas, and pedestrian bike paths within Tracts 1, 2 and 3 of the core Resort area; OLUs provided as lock -off units; Atotal of 160 OLUs will be provided within Tracts 1, 2 and 3; This Site Plan approval is intended to amend and supplement SP -05-53 MC -07-2 Modification of the Dimensional Standards approved under the CMP and FMP, to include dimensional standards for the Overnight Lodging Cottage Lots 247 -15 -000464 -CU, 247-18-000009-A Page 4 of 31 TP -07-988 Tentative Plan to divide Tracts 1, 2 and 3 into 45 Tots, and to allow a Zero Lot Subdivision; Tract 1 includes 22 lots, Tract 2 includes 12 lots, and Tract 3 includes 11 Tots; This division will allow the construction of the overnight lodging cottages approved under SP -06-52 and SP -06-61 TU -07-3 Temporary use permit to construct a model cottage in Tract 1 SP -07-25 Site plan approval for the OLUs approved under SP -06-52 and SP -06-61 to address the lot configurations approved under TP -07-988 MP -08-88 Minor Partition to divide Tract FA into three parcels; Parcel 1 includes a portion of the golf course; Parcel 2 includes the pavilion, fitness center, lakes and a portion of the parking lot and open spaces; Parcel 3 includes the lakehouse facility and a portion of the parking lot in the core area of the Resort MP -08-89 Minor Partition to divide Tract A in the Phase 1 subdivision into two parcels; Parcel 1 includes a portion of the golf course; Parcel 2 includes the open spaces DR -13-23 Declaratory Ruling to determine if the site plan approval under SP -07-25, authorizing OLUs, roads and bike paths, has been initiated MC -13-4 Modification of the CMP and FMP to change the required availability of OLUs from 45 weeks to 38 weeks 247 -15 -000464 -CU, 247-18-000009-A Page 5 of 31 As noted above, the existing Resort received approval for the Conceptual Master Plan ("Approved CMP") in 2005. In 2015, the applicant applied for an expansion of the existing Resort. On April 15, 2016, the Deschutes County (the "County") Hearings Officer issued a final decision on the applicant's destination resort application, 247 -15 -000464 -CU Caldera Springs (the "County Decision"; Exhibit B). The County Decision approved an expansion of the Resort. Central Oregon LandWatch ("COLW") appealed the County Decision to LUBA. On December 6, 2016, LUBA issued its Final Opinion and Order remanding the County Decision to the County for further findings and conclusions of law ("LUBA I"; Exhibit C). The applicant appealed LUBA I to the Oregon Court of Appeals (the "Court"), and COLW filed a cross-appeal of LUBA I. The Court reversed and remanded LUBA I on May 3, 2017 (Exhibit D). On July 12, 2017, LUBA issued a Final Opinion and Order on remand ("LUBA II"; Exhibit E) from the Court, remanded the decision back to the County, and instructed the County to determine whether: 1. Annexation II will be operated and situated in a manner that is integral to the existing Resort - LUBA I; and 2. The existing Caldera Springs "Lock Off" units can qualify as "separate" units for purposes of the definition of OLUs - LUBA I and II. On January 4, 20181, the applicant submitted the remand application. The applicant also informed the County that the applicant and COLW were in settlement negotiations regarding a modified CMP and supplemental application to address the issues set forth in LUBA 1 and II. The applicant requested that the County agree to a mediated settlement. Between December 21, 2017 and July 11, 2018, the applicant, COLW and the County have met to discuss the remand application, consistent with the mediation provisions of ORS 215.435. As a result of the mediation, the applicant and COLW have entered into a settlement agreement regarding the scope of this supplemental remand application. G. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several public agencies and received the following comments: Deschutes County Senior Transportation Planner. I have reviewed the June 20, 2018, traffic memo for Caldera Springs, which supplements the November 17, 2015 traffic impact analysis (TIA). The original traffic study was based on a 1 Although the applicant requested the County initiate the remand via an email dated December 21, 2017, Deschutes County requires the formal submittal of an application and requisite fee to initiate the remand. For this reason, the County views January 4, 2018 as the day the applicant initiated the remand, and day 1 of the 120 -day land use clock as January 5, 2018. 247 -15 -000464 -CU, 247-18-000009-A Page 6 of 31 Modification of SP -07-25 to change the required MC -13-5 availability of OLUs from 45 weeks to 38 weeks 247 -15 -000464 -CU Remanded by the Oregon Land Use Board of Appeals ("LUBA") as detailed below As noted above, the existing Resort received approval for the Conceptual Master Plan ("Approved CMP") in 2005. In 2015, the applicant applied for an expansion of the existing Resort. On April 15, 2016, the Deschutes County (the "County") Hearings Officer issued a final decision on the applicant's destination resort application, 247 -15 -000464 -CU Caldera Springs (the "County Decision"; Exhibit B). The County Decision approved an expansion of the Resort. Central Oregon LandWatch ("COLW") appealed the County Decision to LUBA. On December 6, 2016, LUBA issued its Final Opinion and Order remanding the County Decision to the County for further findings and conclusions of law ("LUBA I"; Exhibit C). The applicant appealed LUBA I to the Oregon Court of Appeals (the "Court"), and COLW filed a cross-appeal of LUBA I. The Court reversed and remanded LUBA I on May 3, 2017 (Exhibit D). On July 12, 2017, LUBA issued a Final Opinion and Order on remand ("LUBA II"; Exhibit E) from the Court, remanded the decision back to the County, and instructed the County to determine whether: 1. Annexation II will be operated and situated in a manner that is integral to the existing Resort - LUBA I; and 2. The existing Caldera Springs "Lock Off" units can qualify as "separate" units for purposes of the definition of OLUs - LUBA I and II. On January 4, 20181, the applicant submitted the remand application. The applicant also informed the County that the applicant and COLW were in settlement negotiations regarding a modified CMP and supplemental application to address the issues set forth in LUBA 1 and II. The applicant requested that the County agree to a mediated settlement. Between December 21, 2017 and July 11, 2018, the applicant, COLW and the County have met to discuss the remand application, consistent with the mediation provisions of ORS 215.435. As a result of the mediation, the applicant and COLW have entered into a settlement agreement regarding the scope of this supplemental remand application. G. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several public agencies and received the following comments: Deschutes County Senior Transportation Planner. I have reviewed the June 20, 2018, traffic memo for Caldera Springs, which supplements the November 17, 2015 traffic impact analysis (TIA). The original traffic study was based on a 1 Although the applicant requested the County initiate the remand via an email dated December 21, 2017, Deschutes County requires the formal submittal of an application and requisite fee to initiate the remand. For this reason, the County views January 4, 2018 as the day the applicant initiated the remand, and day 1 of the 120 -day land use clock as January 5, 2018. 247 -15 -000464 -CU, 247-18-000009-A Page 6 of 31 proposal of 395 residential units and 95 overnight lodging units (OLU) for a total of 490 units as part of file 247 -15 -000464 -CU). All units were analyzed under the 9th edition of the Institute of Traffic Engineers (ITE) trip generation handbook using the category Recreational Homes (Land Use 260). The new proposal is for 340 residential units and 150 OLUs for a total again of 490 units. (Staff notes the applicant's traffic engineer correctly points out the 10th Edition has since been published and Recreational Homes now have a lower trip rate, 0.28 p.m. peak hour trips per unit instead of 0.33. However, to maintain consistency, the County and the traffic engineer have continued to use the trip rate from the 9th edition.) While the trip generation rate remains the same, the trip distribution does not. The original burden of proof ("BoP") and TIA assumed the access to Vandevert Road was a right -in, right - out only (RIRO) and a gated emergency access. Thus the access would not produce any meaningful daily trips. In the latest BoP on Pages 2 and 8 the applicant seeks to modify the Conceptual Master Plan's (CMP) condition of approval #2, removing the RIRO and gated emergency access, instead allowing this to be a full movement access. The BoP on Page 8 discusses the use of key cards which would limit the user to homeowners only. Still, this is more traffic than was analyzed under the assumptions of the previous TIA. A full movement access onto Vandevert means both westbound and eastbound traffic could use Vandevert Road to access the resort. That in turn makes both the South CenturyNandevert Road intersection and the 97Nandevert intersection more likely to see resort traffic as well. In the case of South CenturyNandevert previous through trips could now become turning movements to access the resort via Vandevert. Staff notes neither the Nov. 17, 2015, TIA titled "Final Caldera Springs Annexation Transportation Impact Analysis" nor the dune 20, 2018, memo includes any operational analysis of the resort accessNandevert road intersection. From the Nov. 17 TIA, please refer to Figures 1 (Site Vicinity and Study Intersections), 2 (Site Layout), 7 (2030 Total Conditions Analysis), and 8 (2035 Total Conditions Analysis). While volumes and operational results are provided for all other intersections in the horizon year, no such data are provided for resort accessNandevert Road. Staff notes while the Deschutes County Transportation System Plan (TSP) on Page 147 calls for disconnecting Vandevert Road from US 97, the current funded ODOT project allows all moves, directly and indirectly, to occur. The current ODOT designs accommodate southbound right ins and right outs via turn lanes and/or accel lanes. The northbound left ins and left outs are accommodated bye -turns, a type of channelization to allow turns across traffic, upstream and downstream of the 97Nandevert intersection. Thus, resort traffic, both northbound and southbound, can use the Vandevert/97 intersection to reach the resort's southern access in 2030. Therefore, based on the above, staff feels the revised traffic memo is insufficient and needs to be revised to analyze the 2030 operations of the resort accessNandevert Road intersection and the other studied intersections. 247 -15 -000464 -CU, 247-18-000009-A Page 7 of 31 Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of $4,240 per p.m. peak hour trip. County staff has determined a local trip rate of 0.81 p.m. peak hour trips per single-family dwelling unit; therefore the applicable SDC is $3,434 ($4,240 X 0.81) for the homes. For the calculation of the transportation system development charges (SDCs), the County considers lock -off units as separate trip generators. As an example, a single structure with four lock -off units would be assessed SDC charges, not one. The County in the past has used Resort Hotel (LU 330) for OLUs, which generate 0.41 trips per room, making the SDC $1,738 per lock off unit ($4,240 X 0.41). Per resolution, the County uses the most recent ITE rate when assessing SDCs. The SDC is due prior to issuance of certificate of occupancy; if a certificate of occupancy is not applicable, then the SDC is due within 60 days of the land use decision becoming final. Deschutes County Road Department I have reviewed the June 20, 2018 traffic memo prepared by Kittelson and Associates, Inc. for the above -referenced file numbers. The traffic memo amended the November 17, 2015 Traffic Impact Analysis (TIA) also prepared by Kittelson and Associates, Inc. Road Department provided comments regarding the August 25, 2015 application for 15 -464 -CU, which included a previous version of the TIA, on September 21, 2015. Deschutes County Road Department requests that the applicant's TIA be amended to account for the proposed full -movement access to Vandevert Rd and to account for continuous operation of the Vandevert Rd/Hwy 97 intersection. The November 17, 2015 TIA assumed that the Vandevert Rd access would be a construction/employee access and that the Vandevert Rd connection to Hwy 97 would be severed. The Hearings Officer Decision for 15 -464 -CU required the access to be a gated, right-in/right-out emergency access. The June 20, 2018 traffic memo recognizes that the Vandevert/Hwy 97 assumption has changed and that the applicant is requesting to change the Vandevert Rd access to a full -movement access, but the memo does not provide any analysis for these changes. Specifically, the following items need to be updated in the TIA: 1. Trip distribution and forecasted traffic volumes with and without development (DCC 18.116.310(F)(3) and (G)(7) and (11)). 2. Intersection operation, turn lane warrant, and traffic control device warrant analyses for proposed Vandevert Rd access and revised analyses for all previously -analyzed intersections (DCC 18.116.310(G)(10),(12),(13),and (15)). 3. Findings and conclusions, including recommended mitigation (DCC 18.116.310(G)(16)). Oregon Department of Fish and Wildlife The Oregon Department of Fish & Wildlife (ODFW) is submitting the following comments regarding the proposed revisions to the wildlife mitigation plan (Exhibit B) and wildlife assessment (Exhibit D) associated with the expansion of the Caldera Springs Destination Resort (File No. 247 -15 -000464 -CU, 247-18-000009-A). 247 -15 -000464 -CU, 247-18-000009-A Page 8 of 31 ODFW supports the mitigation area as described in the revised plan dated May 24, 2018. The increase from 125 acres to 220 acres, as well as the modified location and orientation of the mitigation area to the south end of the development, parallel with Vandevert Rd, provides a more functional wildlife corridor. This revised location and orientation will support east -west movement of migrating mule deer and is essential to the mitigation plan's function and value from a wildlife habitat perspective. As part of the wildlife mitigation plan for this development, the applicant has agreed to a onetime payment of $50,000 to be used by ODFW or other state agency to improve wildlife passage in the vicinity of the resort. ODFW encourages Deschutes County to include this mitigation payment in the official county mitigation plan for this development, as it is an important part of meeting the standard of "no net loss or net degradation of the resource" as stipulated by DCC 18.113 .070[D], the approval criteria for destination resorts. In addition to the conditions outlined in Exhibit B, ODFW advises that a condition/ CC&R for the resort be enacted that bans the feeding of wildlife (with the exception of songbirds). The majority of wildlife damage complaints and conflicts in residential areas are the result of people feeding wildlife. As per ODFW wildlife damage policy, the Deschutes Wildlife District will not respond to any wildlife damage complaints within this development due to the change in land use. Please include this policy of ODFW in the Deschutes county wildlife mitigation plan for this development. The following agencies did not respond to the notice: Burlington Northern Santa Fe Railway, Deschutes County Assessor, Deschutes County Building Division, Deschutes County Environmental Soils Division, Deschutes National Forest, La Pine Fire Department, Oregon Department of Transportation, Oregon Department of Aviation, Sunriver Fire Department, Sunriver Owners' Association, Sunriver Resort, and Sunriver Utilities. H. PUBLIC COMMENTS: The Planning Division mailed notice of the public hearing to all parties of record, all property owners within 750 feet of the subject property, and all property owners within the existing Resort. The following comments were received. Donna Harris As a resident for over 12 yrs. along South Century Dr. (SCD), and a citizen advocate for preserving deer habitat and connectivity, I specifically want to address the location and size of the proposed Wildlife Mitigation Tract. It is essential that this larger proposed wildlife corridor be approved. The prior proposed 150' wide corridor, existing along the B.N. railroad track, was extremely insufficient for preserving a mule deer migration corridor. Widening the corridor to at least 1000+ ft. and enlarging it to 221 acres will hopefully result in a more reasonable habitat for preserving an ever shrinking barrier- free migration corridor. The fact that ODFW's determination of present mule deer populations being only at 50 % of sustainability makes preserving adequate deer 247 -15 -000464 -CU, 247-18-000009-A Page 9 of 31 habitat a top priority. This decrease in populations has happened over decades due to habitat loss from expanding development, barriers to migration corridors from roads and highways, from increased outdoor recreation, from off -leash pets, and from abandoned and newly created wildlife unfriendly fences which cause harmful and often fatal injuries to deer and elk. The expanded Wildlife Mitigation Tract should remain a protected area with minimal access road encroachment. The only way I see this happening is by forming a legal conservation easement for the tract as a guarantee that no development of the tract can occur in the future. Ensuring protection for this expanded wildlife corridor should be made a condition for approval. Habitat preservation includes adequate cover and maintaining native shrubs and grasses for forage. Fire mitigation methods in this area that eliminate thermal or protective cover and native forage will adversely influence essential deer habitat, so this must be addressed so as not to limit cover and forage. Other concerns relating to deer migrating through this area are setting up preventative methods to reduce deer / vehicle collisions (DVC's) along South Century Dr. (SCD) where Caldera Resort has been built. In 2015, 15 deer out of 44 killed on 8 miles of SCD were hit along SCD that parallels Caldera. Deer along this part of SCD travel between the Little Deschutes River for water and forage access, then across SCD to migrate through Caldera on their spring and fall migrations. The severe winter of 2016-17 decimated mule deer populations, so correspondingly the DVC's along SCD paralleling Caldera dropped to 5 in this section for the year 2016, and to 2 killed here out of 9 total along 8 miles of SCD in 2017, and to 4 deer and 3 elk here out of 12 total along 8 miles of SCD for 2018 to date. The deer populations have yet to recover in this area from the winter decimation. Meanwhile the total DVC's in Deschutes Co. continues to climb on state, county, and city of Bend roads. In 2016, there were 1065 deer and 28 elk killed by vehicles in Deschutes Co. In 2017, there were 1181 deer and 25 elk killed in the County. These are appallingly high numbers. Preserving deer connectivity means building more wildlife crossings over or under highways that are becoming barriers to migration. Hwy. 97 is an example where the two wildlife crossings south of Lava [Butte] have been close to 90% successful in reducing DVC's. While gathering the statistics for Deschutes Co. DVC's on all roads, I found out from discussions with county road staff that from 2013-15, traffic increased 44% along SCD, with an average of 6200 daily vehicle counts. The last 3 yrs. has seen a substantial increase in traffic, but another traffic study won't be done for perhaps another year. A traffic study should be done before the Caldera expansion starts. Mitigation for increased traffic should be thoughtfully planned out for driver and wildlife safety concerns. Idaho does this by having variable speed signs along wildlife corridors where night driving speed limits are significantly reduced from daytime limits, or having deer crossing signs that flash when a sensor picks up that an animal is on the shoulder or road. Lighted shoulders may help with visibility for seeing deer and elk at dawn and dusk and night. In summary, Deschutes Co. does have one strong rule and that is there should be " no net loss of wildlife habitat". For our deer populations to recover, we must uphold this rule. However, Goal 5 and Title 18 of DCC, Chapter 18.88 (the Wildlife Area Combining Zone) seem to be under attack, with protections for wildlife being diminished, for example, by allowing 247 -15 -000464 -CU, 247-18-000009-A Page 10 of 31 once unpermitted development within protected winter deer range. It is the proverbial "death by a thousand cuts" with our wildlife taking a back seat to expansion. If this continues, we citizens who love to see our wildlife will no longer see the reason many of us moved to Central Oregon in the first place. REVIEW PERIOD: Via an email dated December 21, 2017, the applicant requested the County initiate remand proceedings. It is the County's policy to initiate any application upon submittal of an application form and the requisite fee. The applicant submitted the required application and fee on January 4, 2018. For this reason, the County considers the remand initiated on January 4, 2018. Pursuant to ORS 197.860 and 215.435, the 120 -day clock for final action by the County on remand may be extended up to 365 days if the parties enter into mediation. Per the applicant's burden of proof, the parties entered into mediation from December 17, 2017 to the submittal date of the supplemental application on July 11, 2018. Therefore, the County calculates the first day of the 120 -day deadline beginning on July 12, 2018. The date of the Deschutes County Board of County Commissioners ("BoCC") public hearing, August 29, 2018, is day 49 of the 120 -day clock. III. FINDINGS & CONCLUSIONS For the purposes of this staff report, staff addresses: 1. The two issues remanded by LUBA; 2. Criteria for which revised findings are necessary based on the revised scope of Annexation II; and 3. Requested modifications to certain conditions of approval. LUBA I Deschutes County Code ("DCC") 18.113.025(B) requires destination resort expansion proposals to, Meet all criteria of DCC 18.113 for the entire development (including the existing approved destination resort development and the proposed expansion area), except that as to the area covered by the existing destination resort, compliance with setbacks and lot sizes shall not be required. If the applicant chooses to support its proposal with any part of the existing development, applicant shall demonstrate that the proposed expansion will be situated and managed in a manner that it will be integral to the remainder of the resort. (emphasis added) LUBA found that the Hearings Officer failed to make specific findings that Annexation I will be situated and managed in a manner that that will be integral to the remainder of the Resort. The applicant proposes the following findings to address this criterion for Annexation II. 247 -15 -000464 -CU, 247-18-000009-A Page 11 of 31 [Annexation II] will be operated entirely in conjunction with the operation of the existing resort. In fact, both areas will comprise a single, unified resort, with existing and new amenities available to residents and guests of the entire resort. A guest can elect to golf at the existing Caldera Links and then recreate, eat or relax in the new resort core area proposed for [Annexation II]. Similarly, guests and residents can utilize trails in both areas as a part of their experience. In terms of residents, [Annexation II] will be subject to the same overall CC&Rs that currently govern Caldera Springs. Residents too may elect to utilize recreational features in both areas. Management of the visitor oriented accommodations (e.g., pools, restaurants, meeting areas) will be handled by the same management company. In many ways, [Annexation II] and the existing resort are mirror images of each other, with the entire resort operated as a single, unitary resort. Like Sunriver Resort, which has facilities spread throughout the Sunriver community, Caldera Springs' facilities are situated throughout the entire resort, but operated by one entity. Given that the recreation facilities and Visitor Oriented Accommodations will be located within a single resort area, with connecting roads, paths and open space areas, the County can find that the resort is "situated" in a manner that is integral to the remainder of the resort. Similarly, given that [Annexation II] and the Visitor Oriented Accommodations will be managed by the same entity and that the residences will all be subject to the same CC&Rs, the County can find that [Annexation II] will be "managed" in a manner that is integral to the resort. Staff agrees with the applicant's findings. The BoCC must determine if Annexation II will be situated and managed in a manner that that will be integral to the remainder of the Resort. LUBA I and 1I LUBA held that the evidentiary record before LUBA and the Court was not sufficient for the County to conclude that the existing OLUs in the Resort qualified as "separate rentable units." Both LUBA and the Court held that for the County to determine that the existing OLUs qualify as "separate rentable units" under ORS 1 97.435(5)(b)2, individually -owned units "must be, as a factual matter, an accommodation that is both its own separate unit that is rentable separately from other units." Separate Unit With respect to an OLU meeting the test as a 'separate unit,' the Court explained that it is a, 2 197.435 Definitions for ORS 197.435 to 197.467. As used in ORS 197.435 to 197.467: (5) "Overnight lodgings" means: (b) With respect to lands in eastern Oregon, as defined in ORS 321.805, permanent, separately rentable accommodations that are not available for residential use, including hotel or motel rooms, cabins and time- share units. Individually owned units may be considered overnight lodgings if they are available for overnight rental use by the general public for at least 38 weeks per calendar year through a central reservation system operated by the destination resort or by a real estate property manager, as defined in ORS 696.010. Tent sites, recreational vehicle parks, manufactured dwellings, dormitory rooms and similar accommodations do not qualify as overnight lodgings for the purpose of this definition. 247 -15 -000464 -CU, 247-18-000009-A Page 12 of 31 ...factual determination of whether the rentable unit is actually a separate unit. Further, we note that 'separate' means 'not shared with another: INDIVIDUAL, SINGLE' or 'existing by itself. AUTONOMOUS, INDEPENDENT. LUBA II, slip op 8. In Annexation I, the record included information from the applicant that the existing OLUs each included its own separate exterior entrance; both the interior and exterior doors are lockable; and that each unit has a separate bathroom and sleeping area. Despite this evidence, LUBA found that the existing OLUs do not meet the test of 'separate unit.' Specifically, LUBA found that the Hearings Officer made no factual determination that the separately rentable cabin lock -off rooms are actually separate units rather than bedrooms in a single cabin. LUBA H goes on to state, The Court of Appeals, with the benefit of legislative history regarding the statutes, was unwilling to go so far as to say the overnight rental 'units:.. cannot be lock -off rooms in a single-family vacation residence. We therefore are unwilling to adopt that reading of the statues as well. Nevertheless, given the factors articulated by the Court of Appeals and discussed above, we have difficulty imagining what conditions or modifications might allow the individual cabin lock -off rooms, as currently proposed, to qualify as the individual 'units' described in ORS 197.435(5)(b) and ORS 197.445(4). The only thing that is clear is that cabin bedrooms that, are in theory separately rentable and happen to have their own bathroom and lockable inside and outside entrances, but for which there is no evidence have ever been rented separately from the other bedrooms in the cabin, are not appropriately viewed as individual 'units.' Something more will be required to ensure that they are in fact individual units. In response, the applicant argues that the existing OLUs are separate units based on the following additional evidence: • Separate key, room number and television for each unit; • Separate entrances and keys allow the occupant of each unit to remain separate from other guests in other units in the same structure; • Each unit is provided a parking space; • Each unit includes all the elements of a transient accommodation or a "sleeping unit" as defined by the Oregon Structural Specialty Code ("OSSC")3; For these reasons, the applicant argues each existing OLU is "not shared with another" and "exists by itself" independent from other units in the same structure. The applicant states there is no functional or practical difference between two adjoining OLUs and two adjoining hotel rooms. The applicant notes that existing non -Goal 8 resorts such as Black Butte Ranch, Sunriver Resort and Mount Bachelor Village, as well as existing Goal 8 resorts such as Tetherow and Brasada Ranch, use lock -off units. In each instance, the applicant states, lock -off rooms may be rented separately or combined with the adjoining unit to meet a particular guest's needs. 3 A room or space in which people sleep, which can also include permanent provisions for living, eating, and either sanitation or kitchen facilities, but not both. 247 -15 -000464 -CU, 247-18-000009-A Page 13 of 31 The applicant provides further argument to bolster their position. Clearly, if a hotel room qualifies under ORS 197.445(4)(b) as a "separate rentable unit" then so too do the existing Caldera Springs OLU's which share the exact same features as a hotel or motel room. In any instance where a structure is occupied by separate guests, similar to an adjoining hotel room, there are interior doors which effectively separate the various OLUs to permit guests to maintain their privacy in their own OLU. In such instances there are no physical connections between the units or other interaction between guests while they are in their own unit. Each OLU operates independent of the other units in a manner exactly the same as adjoining hotel rooms. The BoCC must determine, based on evidence in the record, that the existing OLUs in the Resort are a 'separate unit' for the purposes of complying with ORS 197.435(5)(b). Separately Rentable As noted above, LUBA found that there is no evidence that the existing OLUs have ever been rented separately. To address this issue, the applicant included a spreadsheet identifying instances where Caldera OLUs have been rented separately from each other. The BoP explains, "Master Reservations" are instances where the entire Caldera cabin is rented through a corporate, golf package, reunion or other group. The guests in the cabin, however, [have] their own unique reservation number and charging privileges. For example, if a large corporate group were to rent all 45 cabins as part of a group retreat for 196 of its employees, the company would hold the master reservation, but each employee would have their own unique reservation number, OLU, and charging privileges associated with their unique suite. Similarly, in a family reunion setting, one family member may reserve several cabins, but each family member would have their own unique reservation number, their OLU accommodation and charging privileges. Over the past 7 years, shared reservations have accounted for an average of 15% of all stays, with a range of 4% to 30%. Whether a single guest reserves all 196 OLUs or whether 196 separate guests book the OLUs, the same number of guests can be accommodated in the existing Caldera Springs overnight units. Additionally, the applicant points out the Resort website allows individual OLUs to be rented in any combination desired by a guest - whether it be a single unit or multiple units. Further, the BoP includes an affidavit from Sunriver Resort which demonstrates that the 156 OLUs managed by the Sunriver Resort are individually rentable through the central reservation service established by Sunriver Resort for Caldera Springs. The BoCC must determine whether the existing OLUs at the Resort are separately rentable. 247 -15 -000464 -CU, 247-18-000009-A Page 14 of 31 Effect of BoCC Determinations As noted above, because the applicant proposes to expand the Resort, all existing OLUs must meet the test described above from the Court and LUBA ("OLU test"). Should the BoCC determine that the existing OLUs are 'separate units' and that each is 'separately rentable,' the applicant can count those existing OLUs towards the OLUs required to meet the overall ratio of single-family dwellings to OLUs4. Should the BoCC determine that the existing OLUs are either not 'separate units' or are not 'separately rentable,' then the existing OLUs fail the OLU test and cannot be counted to satisfy the required single-family residential unit to OLU ratio. This would require the applicant to either modify to the existing OLUs to meet the OLU test, or require the applicant to propose additional OLUs on the Annexation II property. TITLE 18, COUNTY ZONING A. Chapter 18.113, Destination Resorts Zone 1. Section 18.113.030. Uses in Destination Resorts. C. Residential accommodations: 1. Single family dwellings; 2. Duplexes, triplexes, fourplexes and multi family dwellings; 3. Condominiums; 4. Townhouses; 5. Living quarters for employees; 6. Time share projects. FINDING: The applicant proposes to use a combination of different types of single-family units including, but not limited to: 1. Duplex units, each of which includes full cooking, bathing and sleeping areas; 2. Single-family residential units and auxiliary dwelling units located on a single lot, with the option of classifying one or both units on the lot as OLUs; 3. Single-family residential units with separately rentable attached and detached suites; 4. Lodge units, which would qualify as "hotel" units under the Destination Resort Statute; 5. Small houses/condominium units on individual lots or developed in a multi -family style development; or 6. A combination of any or all of the above. Although detached residential units on the same lot as a single-family dwelling, as contemplated under options 2 and 3, are not expressly allowed under this section, staff finds this combination of residential dwelling types is functionally the same as a duplex. As noted in the criterion, duplexes are allowed. For this reason, staff finds the proposed residential types complies with this criterion. 4 Within the existing Resort, the ratio is 2.5:1. For the Annexation 11 area, the proposed ratio is 2.3:1. 247 -15 -000464 -CU, 247-18-000009-A Page 15 of 31 2. Section 18.84.050. Use Limitations. 8. Structures which are not visible from the designated roadway, river or stream and which are assured of remaining not visible because of vegetation, topography or existing development are exempt from the provisions of DCC 18.84.080 (Design Review Standards) and DCC 18.84.090 (Setbacks). An applicant for site plan review in the LM Zone shall conform with the provisions of DCC 18.84, or may submit evidence that the proposed structure will not be visible from the designated road, river or stream. Structures not visible from the designated road, river or stream must meet setback standards of the underlying zone. FINDING: In Annexation I, the Hearings Officer found, The applicant's Burden of Proof Exhibit A and A-1, shows the proposed resort structures will be set back at least 200 feet from South Century Drive, at least 300 feet from Vandevert Road, and at least 1,100 feet from Highway 97. All structures which may be visible from South Century Drive will be buffered through a mix of berms, setbacks and natural vegetation. Additional evidence submitted during the hearings process confirmed that the development will not be visible from S. Century Drive. However, no berms are proposed along Vandevert Road, and therefore, the design review standards are discussed below. The intervening railroad berm between the resort and Hwy 97 appears reasonably likely to screen the resort from that direction. In Annexation II, the applicant incorporates setbacks of approximately 900 feet from South Century Drive, approximately 1,500 feet from Vandevert Road, and at least 1,200 feet from Highway 97. Additionally, the applicant proposes the preservation of existing vegetation along all three roadways. For this reason, staff finds resort structures will not be visible, and will remain not visible, from South Century Drive, Vandevert Road, and Highway 97. Therefore, LM site plan review will not be required for structures subject to Annexation II. This criterion will be met. B. Chapter 18.88, Wildlife Area Combining Zone 1. Section 18.88.060. Siting Standards. 8. The footprint, including decks and porches, for new dwellings shall be located entirely within 300 feet of public roads, private roads or recorded easements for vehicular access existing as of August 5, 1992 unless it can be found that: 1. Habitat values (i.e., browse, forage, cover, access to water) and migration corridors are afforded equal or greater protection through a different development pattern; or, 247 -15 -000464 -CU, 247-18-000009-A Page 16 of 31 2. The siting within 300 feet of such roads or easements for vehicular access would force the dwelling to be located on irrigated land, in which case, the dwelling shall be located to provide the least possible impact on wildlife habitat considering browse, forage, cover, access to water and migration corridors, and minimizing length of new access roads and driveways; or, 3. The dwelling is set back no more than 50 feet from the edge of a driveway that existed as of August 5, 1992. FINDING: In Annexation I, the applicant submitted substantial evidence in the record indicating the configuration and location of dwellings in Annexation I would provide equal or greater protection of habitat values, as allowed under subsection 1. Similarly, the applicant for Annexation II provided an August 22, 2018 memorandum from Dr. Wente5 indicating that the location of dwellings will provide equal or greater protection of habitat values in following ways: 1. The Wildlife Mitigation Tract ("WMT") will provide 220 contiguous acres of undeveloped land that will be protected and managed as wildlife habitat; 2. The WMT adds width to the north/south corridor for deer and elk movement as well as providing a visual screen between Annexation II development and the undeveloped land to the east; and 3. The WMT provides an east/west corridor for deer and elk along Vandevert Road, and addresses a concern voiced by ODFW. Dr. Wente goes on to conclude that the WMT would not be available if the Annexation II property were developed strictly by the 300 -foot siting standard. Staff agrees with Dr. Wente's assessment and finds this criterion will be met. C. Chapter 18.113. Destination Resorts Zone - DR 1. Section 18.113.030. Uses in Destination Resorts. The following uses are allowed, provided they are part of, and are intended to serve persons at, the destination resort pursuant to DCC 18.113.030 and are approved in a final master plan: E. Uses permitted in open space areas generally include only those uses that, except as specified herein, do not alter the existing or natural landscape of the proposed open space areas. No improvements, development or other alteration of the natural or existing landscape shall be allowed in open space areas, except as necessary for development of golf course fairways and greens, hiking and bike trails, lakes and ponds and primitive picnic facilities including park benches and picnic tables. Where farming activities would be 5 Reference Steve Hultberg email dated August 27, 2018. 247 -15 -000464 -CU, 247-18-000009-A Page 17 of 31 consistent with identified preexisting open space uses, irrigation equipment and associated pumping facilities shall be allowed. FINDING: The Hearings Officer in Annexation I made the following findings, Staff found that the annexation property will include approximately 256 acres of dedicated open space throughout the project. The open space areas will largely be devoted to passive uses, including bicycle and hiking trails, along with small picnic and park areas. Lakes and ponds are planned for open space areas, although the precise locations, size and design have not been finalized at this time. In addition to dedicated open space, the annexation property includes a 125 -acre Wildlife Mitigation Tract which is in addition to the dedicated open space. The Wildlife Mitigation Tract is described below in more detail. The Wildlife Mitigation Tract and the dedicated open space areas will be subject to two separate management plans. In general terms, the Wildlife Mitigation Tract is intended as a set aside and will not include any resort -related improvements. This criterion is met. The applicant proposes to modify the open space for Annexation II as follows, 1. Increase in open space from 125 acres to 220 acres; 2. Relocation of the WMT to the southern portion of the property, along Vandevert Road and South Century Drive6; 3. Uses in the WMT. The only uses permitted within the WMT shall be the access road depicted on the Site Plan and soft walking/hiking paths, as generally depicted on the Site Plan. The following additional restrictions will apply to uses in the WMT: a. Recreation: To offset potential disturbance -or disruption -related indirect effects of humans, the WMT will not include the use of any bicycle, mountain bike or other mechanical vehicles, except as may be reasonably required for wildfire and wildlife treatments within the WMT as contemplated by the wildfire and wildlife reports adopted as part of Annexation I. b. Dogs: The CC&Rs for the Resort shall specifically include a requirement that no off - leash dogs shall be permitted in the Resort, unless located within a fenced dog park located within the Resort, but outside the Wildlife Mitigation Tract. c. Access Road Operation: The access road through the WMT shall be designated as a homeowner access road, limited to homeowner and construction traffic only. The access road as depicted on the Site Plan shall be relocated west to be within or immediately adjacent to the powerline easement. No gatehouse or guest station shall be permitted at the access point. Appropriate signage shall be installed directing Resort guests and visitors to the main resort entrance on South Century Drive. Gates shall be installed and maintained as reasonably practical at Vandevert Road on the south terminus of the road and at the interior location set forth on the Site Plan. The gates shall be closed and operable by a key card, vehicle transponders or other similar equipment 24 hours per day. 6 In Annexation I, the WMT was proposed along the eastern portion of the property, adjacent to the railroad tracks. 247 -15 -000464 -CU, 247-18-000009-A Page 18 of 31 ii. The access road shall be designed in a manner to reduce speeds (including one or more of the following features: sinuous alignment, bulb outs, traffic calming features) and shall be posted with a 20 MPH limit and identified as a wildlife corridor. iii. Educational signage shall be placed in an appropriate location at the boundary of the WMT identifying the area as such, and explaining the need not to disturb habitat or species within the WMT. 4. Structures. No structures other than the access road, gates and proposed walking trails as shown on the Site Plan shall be permitted in the WMT. 5. Management in the WMT. Consistent with the wildlife management report prepared for the Resort, the following management measures shall be implemented: a. Rock Outcrops. Rock outcrops and piles provide unique habitat qualities and serve as a keystone habitat niche within the WMT. Accordingly, any management activities should avoid such outcrops and the surrounding vegetation; b. Snags. Standing snags provide important habitat niches, especially for avian and small mammal species. Accordingly, all existing wildlife snags should be retained, unless they are determined to pose a wildfire hazard; 6. Other Habitat Conservation Measures. Vegetation shall be monitored, and weeds and non- native plants will be controlled and eradicated when possible; a. Brush patches will be maintained in a mosaic pattern to provide various stages of growth so that both cover and forage are provided. Vegetation management activities performed in the WMT shall be performed in the fall or spring (outside of deer winter season) when areas are accessible and not under fire restrictions, except that any mowing is not to occur in the spring when there is bird nesting; b. Ponderosa pine trees (dead and living) will be preserved where possible; c. Downed logs will be retained for their wildlife value where possible; d. Firewood cutting or vegetation alteration beyond that prescribed as management for increased habitat value will not be permitted; e. Nest boxes will be installed and maintained to benefit native bird species; f. Bat boxes will be installed on trees to benefit native bat species; g. No new fences are proposed to be included in the WMT; h. Livestock will not kept or allowed on the property; The proposed development will prohibit the recreational use of off-road motor vehicles within the WMT. Motorized vehicle use in the WMT will only be allowed for management or emergency fire vehicle access; j. The lots that are directly adjacent to the WMT will have 25 -foot setback requirements to protect the wildlife value of the area; k. A program for proper garbage storage and disposal will be instituted for all resort residences and facilities. The program will be designed to reduce the availability of human -generated food resources to predators and corvids (crows, ravens, and Jays) known to predate other wildlife species; An educational program for local residents will be initiated regarding the native wildlife populations using the WMT and the need to avoid disturbance of species within the WMT. Educational materials will include newsletters, flyers, signage on trails, or other similar outreach tools; 247 -15 -000464 -CU, 247-18-000009-A Page 19 of 31 m. No fireworks of any type will be allowed; n. No use of drones will be allowed; and o. No hunting, discharge of firearms or trapping will be allowed. As noted in the BoP, the applicant specifically requests that items 3-6 be added as conditions of approval. Staff offers the following suggested revisions shown as strikeout/underline: 3.c.i. Gates shall be installed and maintained as reasonably practical at Vandevert Road on the south terminus of the proposed Resort road connecting to Vandevert Road; a at the interior location set forth on the Site Plan. The gates shall be closed and operable by a key card, vehicle transponders or other similar equipment 24 hours per day. 6.d. Firewood cutting or vegetation alteration beyond that prescribed as management for increased habitat value or as management for wildfire risk, will not be permitted 6.e. Prior to Final Plat Approval, Nnest boxes will be installed. Said nest boxes shall beand maintained to benefit native bird species; 6.f. Prior to Final Plat Approval, Bbat boxes will be installed on trees to benefit native bat species; With the suggested revisions, staff finds the proposed uses in the open space will comply with this criterion, along with the WHMP and the WMP. Further, should the BoCC approve Annexation II, staff recommends the BoCC include revised items 3-6 as conditions of approval. F. Facilities necessary for public safety and utility service within the destination resort. FINDING: In Annexation I, the Hearings Officer found that adequate provision for sewer and water service was proposed, subject to a condition of approval requiring the applicant to provide signed agreements for water and sewer service prior to Final Master Plan approval. Given the proposed change in single-family unit and OLU composition, the applicant's Exhibit E is an updated report by Parametrix (June 21, 2018) detailing the expected sewer and water needs for Annexation II. The Parametrix report states, 1. The 2015 Parametrix report was based on a development impact of 395 residential lots and 95 OLUs. Each residential lot equates to one Equivalent Dwelling Unit ("EDU") in terms of sewer and water need. The 2015 report assumed each OLU would be 0.2 EDU. Therefore, the total EDU impact of the 395 residential lots and 95 OLUS was expected to be 414 EDU'. 2. Annexation II proposes 340 residential lots and 150 OLUs. Using the same factor for OLUs referenced above, Annexation II will have a sewer/water impact of 415 EDU8. 3. The 2015 Parametrix Report accounted for 34 acres of irrigation, based on Annexation I's water need for landscaping and the lake area. 4. The 2018 Parametrix Report accounts for 13 acres of irrigation, based on Annexation Il's reduction in water need for landscaping and the lake area. Consequently, the water need for landscaping and the lake area will be Tess than half the previously anticipated need. 395 residential lots + (95 OLUs x 0.2) = 414 EDU. 8 340 residential lots + (150 OLUs x 0.2) = 415 EDU. 247 -15 -000464 -CU, 247-18-000009-A Page 20 of 31 For these reasons, Parametrix concludes the sewer and water needs for Annexation II will be no greater than those anticipated with Annexation I. Based on this evidence, staff finds Annexation II will adequately provide for necessary sewer and water need. Similar to Annexation I, staff recommends a condition of approval requiring the applicant to provide signed agreements for water and sewer service prior to Final Master Plan approval. As of the date of this staff report, no comments were received from Sunriver Water LLC/Sunriver Environmental LLC offering any objection to the ability to serve Annexation II with sewer and water service. Given that the total number of residential units and OLUs proposed in Annexation II is the same as the total number in Annexation I, staff finds the 'will -serve' letters submitted in Annexation I from MidState Electric, Cascade Natural Gas, and Century Link, are sufficient to assure adequate provision of electricity, natural gas and telephone service to Annexation II. Fire and police protection will be provided by La Pine Rural Fire Protection District and the Deschutes County Sheriff's Office, respectively. Medical service is available from St. Charles in Bend and the medical clinic at Sunriver. 2. Section 18.113.050. Requirements for conditional use permit and conceptual master plan applications. The CMP provides the framework for development of the destination resort and is intended to ensure that the destination resort meets the requirements of DCC 18.113. The CMP application shall include the following information: B. Further information as follows: 2. A traffic study which addresses (1) impacts on affected County, city and state road systems and (2) transportation improvements necessary to mitigate any such impacts. The study shall be submitted to the affected road authority (either the County Department of Public Works or the Oregon Department of Transportation, or both) at the same time as the conceptual master plan and shall be prepared by a licensed traffic engineer to the minimum standards of the road authorities. FINDING: For Annexation I, the applicant submitted a Traffic Impact Analysis ("TIA"), dated November 2015, to determine what impacts, if any, would result from the proposed expansion of the Resort, and what improvements, if any, would be necessary to address any identified issues. The 2015 TIA concluded, 1. Annexation I would result in a maximum of 162 p.m. peak hour trips; 2. The study intersections will continue to operate within applicable performance standards, with the exception of US 97Nandevert Road; 3. The proposed Vandevert Road access should be limited to construction traffic only or have outbound left -turn movements restricted until such time that the US 97Nandevert intersection is closed or restricted to right-in/right-out ("RIRO") movements; 247 -15 -000464 -CU, 247-18-000009-A Page 21 of 31 4. The expansion of the Resort will have little to no impact on internal Resort traffic conditions; and 5. No other offsite mitigation measures are required to accommodate Annexation I. To address transportation related issues for Annexation II, the applicant includes, as Exhibit C, a memorandum from Kittleson & Associates (June 20, 2018). The 2018 memorandum states that Annexation II will not increase the trip generation from that analyzed in the 2015 TIA. For this reason, Kittleson and Associates concludes the findings of the 2015 are still valid. The 2018 memorandum points out that the Hearings Officer limited the Vandevert Road access to construction traffic only, with gated emergency vehicle only access thereafter. Kittleson argues that the Hearings Officer's restriction is inconsistent with their analysis. For this reason, Kittleson again recommends limiting the Vandevert Road access to construction only or have outbound left -turn movements restricted until such time as the US 97Nandevert intersection is either closed or is modified to be RIRO only. As detailed above, the County's Senior Transportation Planner, Peter Russell, reviewed the 2018 memorandum and offered the following comments, While the trip generation rate remains the same, the trip distribution does not. The original burden of proof and TIA assumed the access to Vandevert Road was a right -in, right -out only (RIRO) and a gated emergency access. Thus the access would not produce any meaningful daily trips. In the latest burden of proof on Pages 2 and 8 the applicant seeks to modify the Conceptual Master Plan's (CMP) condition of approval #2, removing the RIRO and gated emergency access, instead allowing this to be a full movement access. The burden of proof on Page 8 discusses the use of key cards which would limit the user to homeowners only. Still, this is more traffic than was analyzed under the assumptions of the previous TIA. A full movement access onto Vandevert means both westbound and eastbound traffic could use Vandevert Road to access the resort. That in turn makes both the South Century/Vandevert Road intersection and the 97Nandevert intersection more likely to see resort traffic as well. In the case of South CenturyNandevert previous through trips could now become turning movements to access the resort via Vandevert. Staff notes neither the Nov. 17, 2015, TIA titled "Final Caldera Springs Annexation Transportation Impact Analysis" nor the June 20, 2018, memo includes any operational analysis of the resort accessNandevert road intersection. From the Nov. 17 TIA, please refer to Figures 1 (Site Vicinity and Study Intersections), 2 (Site Layout), 7 (2030 Total Conditions Analysis), and 8 (2035 Total Conditions Analysis). While volumes and operational results are provided for all other intersections in the horizon year, no such data are provided for resort accessNandevert Road. Staff notes while the Deschutes County Transportation System Plan (TSP) on Page 147 calls for disconnecting Vandevert Road from US 97, the current funded ODOT project allows all moves, directly and indirectly, to occur. The current ODOT designs accommodate southbound right ins and right outs via turn lanes and/or accel lanes. The northbound left 247 -15 -000464 -CU, 247-18-000009-A Page 22 of 31 ins and left outs are accommodated by J -turns, a type of channelization to allow turns across traffic, upstream and downstream of the 97/Vandevert intersection. Thus, resort traffic, both northbound and southbound, can use the Vandevert/97 intersection to reach the resort's southern access in 2030. Therefore, based on the above, staff feels the revised traffic memo is insufficient and needs to be revised to analyze the 2030 operations of the resort access/Vandevert Road intersection and the other studied intersections. The Road Department offers similar comments, Deschutes County Road Department requests that the applicant's TIA be amended to account for the proposed full -movement access to Vandevert Rd and to account for continuous operation of the Vandevert Rd/Hwy 97 intersection. The November 17, 2015 TIA assumed that the Vandevert Rd access would be a construction/employee access and that the Vandevert Rd connection to Hwy 97 would be severed. The Hearings Officer Decision for 15 -464 -CU required the access to be a gated, right-in/right-out emergency access. The June 20, 2018 traffic memo recognizes that the Vandevert/Hwy 97 assumption has changed and that the applicant is requesting to change the Vandevert Rd access to a full -movement access, but the memo does not provide any analysis for these changes. Specifically, the following items need to be updated in the TIA: 1. Trip distribution and forecasted traffic volumes with and without development (DCC 18.116.310(F)(3) and (G)(7) and (11)). 2. Intersection operation, turn lane warrant, and traffic control device warrant analyses for proposed Vandevert Rd access and revised analyses for all previously -analyzed intersections (DCC 18.116.310(G)(10),(12),(13),and (15)). 3. Findings and conclusions, including recommended mitigation (DCC 18.116.310(G)(16)). Therefore, staff asks the applicant to address the County's comments and revise the 2018 memorandum, as necessary. 4. Design guidelines and development standards defining visual and aesthetic parameters for: e. Proposed standards for minimum lot area, width, frontage, lot coverage, setbacks and building heights. FINDING: As noted in the BoP, the applicant indicates an error was made in the 2015 WHMP submitted with Annexation I that recommended a 100 -foot setback from common areas. Although this recommendation was not adopted by the Hearings Officer in the Annexation I approval, the applicant desires to provide clarity that the 100 -foot setback is not necessary. The June 19, 2018 memorandum from Dr. Wente confirms that the 100 -foot setback was not considered during the wildlife evaluation and its exclusion does not impact the results of the WHMP. For this reason, staff 247 -15 -000464 -CU, 247-18-000009-A Page 23 of 31 agrees with the applicant that the 100 -foot setback from common areas noted in the 2015 WHMP is not necessary. 247 -15 -000464 -CU, 247-18-000009-A Page 24 of 31 3. Section 18.113.060. Standards for Destination Resorts. The following standards shall govern consideration of destination resorts: A. The destination resort shall, in the first phase, provide for and include as part of the CMP the following minimum requirements: 1. At least 150 separate rentable units for visitor oriented overnight lodging as follows: a. The first 50 overnight lodging units must be constructed prior to the closure of sales, rental or lease of any residential dwellings or lots. b. The resort may elect to phase in the remaining 100 overnight lodging units as follows: i. At least 50 of the remaining 100 required overnight lodging units shall be constructed or guaranteed through surety bonding or equivalent financial assurance within 5 years of the closure of sale of individual lots or units, and; ii. The remaining 50 required overnight lodging units shall be constructed or guaranteed through surety bonding or equivalent financial assurance within 10 years of the closure of sale of individual lots or units. iii. If the developer of a resort guarantees a portion of the overnight lodging units required under subsection 18.113.060(A)(1)(b) through surety bonding or other equivalent financial assurance, the overnight lodging units must be constructed within 4 years of the date of execution of the surety bond or other equivalent financial assurance. iv. The 2:1 accommodation ratio required by DCC 18.113.060(D)(2) must be maintained at all times. c. If a resort does not chose to phase the overnight lodging units as described in 18.113.060(A)(1)(b), then the required 150 units of overnight lodging must be constructed prior to the closure of sales, rental or lease of any residential dwellings or lots. FINDING: Ordinance 2013-008 amended subsection iv to allow up to a 2.5:1 ratio of single-family dwelling units to OLUs. The applicant proposes a ratio of 2.3:1 for Annexation II, meeting this standard. As discussed above, the applicant is relying on the existing 150 OLUs to allow the establishment of additional residential units in the Annexation II property. The applicant's ability to meet the 2.3:1 ratio is dependent on the BoCC's determination whether the existing OLUs are each a 'separate unit' and whether each is a 'separately rentable unit' as required in LUBA I and II. D. A destination resort shall, cumulatively and for each phase, meet the following minimum requirements: 247 -15 -000464 -CU, 247-18-000009-A Page 25 of 31 1. The resort shall have a minimum of 50 percent of the total acreage of the development dedicated to permanent open space, excluding yards, streets and parking areas. Portions of individual residential lots and landscape area requirements for developed recreational facilities, visitor oriented accommodations or multi family or commercial uses established by DCC 18.124.070 shall not be considered open space; FINDING: The Annexation 11 property encompasses 614 acres of land. With the enlarged WMT, the total acreage of open space and WMT will be 381.7, or 62.1 percent. This criterion will be met. 2. Exterior setbacks. a. Except as otherwise specified herein, all development (including structures, site obscuring fences of over three feet in height and changes to the natural topography of the land) shall be setback from exterior property lines as follows: i. Three hundred fifty feet for commercial development including all associated parking areas; ii. Two hundred fifty feet for multi family development and visitor oriented accommodations (except for single family residences) including all associated parking areas; One hundred fifty feet for above grade development other than that listed in DCC 18.113.060(G)(2)(a)(i) and (ii); iv. One hundred feet for roads; v. Fifty feet for golf courses; and vi. Fifty feet for jogging trails and bike paths where they abut private developed lots and no setback for where they abut public roads and public lands. b. Notwithstanding DCC 18.113.060(G)(2)(a)(iii), above grade development other than that listed in DCC 18.113.060(G)(2)(a)(i) and (ii) shall be set back 250 feet in circumstances where state highways coincide with exterior property lines. c. The setbacks of DCC 18.113.060 shall not apply to entry roadways and signs. FINDING: Based on staff's review of the submitted Concept Master Plan, the area designated as 'Visitor Oriented Accommodations/Resort Core' observes a setback of less than 200 feet. Criterion ii above requires a minimum 250 -foot exterior setback. The applicant should address this criterion. All other required exterior setbacks appear to be met. 247 -15 -000464 -CU, 247-18-000009-A Page 26 of 31 4. Section 18.113.070. Approval Criteria. In order to approve a destination resort, the Planning Director or Hearings Body shall find from substantial evidence in the record that: D. Any negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource. FINDING: The applicant proposes a modification to the location and size of the WMT. Under Annexation I, the WMT was proposed to be located primarily along the eastern property boundary adjacent to the Burlington Northern Railroad main line, and would be 125 acres in size. Under Annexation II, the WMT will be primarily located along the southern property boundary adjacent to Vandevert Road, will be 1,425 feet wide, and will include 220 acres of land. The applicant offers the following proposed findings regarding the modified WMT, The Supplemental Wildlife Report, again prepared by Dr. Wendy Wente, evaluated the Revised CMP, and in particular, the relocated and expanded Wildlife Mitigation Tract. As set forth in the Supplemental Wildlife Report, Dr. Wente again concludes that "the proposed development continues to meet the requirement set forth in the Deschutes County Code that any negative impact on fish and wildlife resources will be completely mitigated so there is no net loss or net degradation of the resource." Dr. Wente also concludes that the relocated Wildlife Mitigation Tract is preferable to the original because it preserves a mitigation area that is at least 1,425 feet wide along the entire southern extent of the proposed development. This area will not only continue to support resident wildlife, but it will also serve as an east -west movement corridor for mule deer; a primary concern voiced ODFW during development of the original Wildlife Report. ODFW concludes that the modified WMT provides a more functional wildlife that will support east - west movement of migrating mule deer. ODFW notes that the applicant has agreed to a onetime payment of $50,000 to be used by ODFW or other state agency to improve wildlife passage in the vicinity of the resort. ODFW encourages Deschutes County to include this mitigation payment in the official county mitigation plan for this development, as it is an important part of meeting the standard of 'no net loss or net degradation of the resource' as stipulated by DCC 18.113.070[D], the approval criteria for destination resorts. Staff notes that Dr. Wente's analysis of necessary mitigation to comply with the 'no net Toss or degradation' standard does not rely on the one-time payment for wildlife passage. For this reason, neither staff nor the applicant finds that a condition of approval is necessary. That said, the applicant agrees to a voluntary condition of approval requiring payment of $50,000 to ODFW or other state agency to improve wildlife passage. Should the BoCC agree to this condition, staff recommends payment be made prior to Final Plat Approval. In addition to the conditions outlined in the applicant's Exhibit B, ODFW advises that a condition/ CC&R for the resort be enacted that bans the feeding of wildlife (with the exception of songbirds). ODFW states that the majority of wildlife damage complaints and conflicts in residential areas are 247 -15 -000464 -CU, 247-18-000009-A Page 27 of 31 the result of people feeding wildlife. As per ODFW wildlife damage policy, the Deschutes Wildlife District will not respond to any wildlife damage complaints within this development due to the change in land use. For this reason, ODFW requests the County include this policy of ODFW in the wildlife mitigation plan for this development. Staff finds this request is not related to any approval criterion. For this reason, staff does not recommend a condition of approval. That said, the applicant agrees to a condition of approval if required by the BoCC. Staff asks the BoCC to determine whether a condition of approval prohibiting feeding of wildlife, other than songbirds, is warranted. G. Destination resort developments that significantly affect a transportation facility shall assure that the development is consistent with the identified function, capacity and level of service of the facility. This shall be accomplished by either: 1. Limiting the development to be consistent with the planned function, capacity and level of service of the transportation facility; 2. Providing transportation facilities adequate to support the proposed development consistent with Oregon Administrative Rules chapter 660, Division 12; or 3. Altering land use densities, design requirements or using other methods to reduce demand for automobile travel and to meet travel needs through other modes. A destination resort significantly affects a transportation facility if it would result in levels of travel or access that are inconsistent with the functional classification of a facility or would reduce the level of service of the facility below the minimum acceptable level identified in the relevant transportation system plan. a. Where the option of providing transportation facilities is chosen, the applicant shall be required to improve impacted roads to the full standards of the affected authority as a condition of approval. Timing of such improvements shall be based upon the timing of the impacts created by the development as determined by the traffic study or the recommendations of the affected road authority. b. Access within the project shall be adequate to serve the project in a safe and efficient manner for each phase of the project. FINDING: As discussed previously, both the County Road Department and Senior Transportation Planner request revisions to the June 20, 2018 Kittleson memorandum. Staff asks the applicant to address the County's concerns. K. Adequate water will be available for all proposed uses at the destination resort, based upon the water study and a proposed water conservation plan. Water use will not reduce the availability of water in the water impact areas 247 -15 -000464 -CU, 247-18-000009-A Page 28 of 31 identified in the water study considering existing uses and potential development previously approved in the affected area. Water sources shall not include any perched water table. Water shall only be taken from the regional aquifer. Where a perched water table is pierced to access the regional aquifer, the well must be sealed off from the perched water table. FINDING: As discussed above, the existing Sunriver water distribution system will be extended to serve the annexation property. Staff recommends a condition of approval requiring the applicant to provide a signed agreement for water service prior to Final Master Plan approval. The findings addressing water supply under DCC 18.113 are relevant here and are adopted herein by reference. IV. CONCLUSIONS Based upon the preceding analysis, staff concludes the applicant can comply with most of the approval criteria. Staff has identified a few issue areas where staff is unsure if the applicant has met their burden of proof and asks the BoCC to focus their review on these issues. 1. Integral. Will Annexation II be operated and situated in a manner that is integral to the existing Resort pursuant to LUBA I? 2. OLUs. Are the existing OLUs each a 'separate unit' and each a 'separately rentable unit' pursuant to LUBA I and II? 3. Exterior Setbacks. Do the visitor oriented accommodations depicted on the Concept Master Plan meet the 250 -foot exterior setbacks required under DCC 18.113.060(D)(2)? 4. Wildlife Passage Payment. Should a condition of approval be added requiring the applicant to pay $50,000 for wildlife passage improvements? DCC 18.113.070(D). 5. Wildlife Feeding. Should a condition of approval be added requiring the applicant to prohibit feeding of wildlife, other than songbirds? 6. Transportation. Will Annexation II result in any transportation related impacts? If yes, what mitigation measures are necessary? DCC 18.113.070(G). V. RECOMMENDED CONDITIONS OF APPROVAL 1. Approval is based upon the application, site plan, specifications, and supporting documentation submitted by the applicant. Any substantial change in this approved use will require review through a new land use application. 2. Except as modified below, all other conditions of approval for land use file 247 -15 -000464 - CU remain in effect. 3. Uses in the Wildlife Mitigation Tract ("WMT"). The only uses permitted within the WMT shall be the access road depicted on the Site Plan and soft walking/hiking paths, as generally depicted on the Site Plan. The following additional restrictions will apply to uses in the WMT: a. Recreation. To offset potential disturbance -or disruption -related indirect effects of humans, the WMT will not include the use of any bicycle, mountain bike or other 247 -15 -000464 -CU, 247-18-000009-A Page 29 of 31 mechanical vehicles, except as may be reasonably required for wildfire and wildlife treatments within the WMT as contemplated by the wildfire and wildlife reports adopted as part of Annexation I. b. Dogs. The CC&Rs for the Resort shall specifically include a requirement that no off - leash dogs shall be permitted in the Resort, unless located within a fenced dog park located within the Resort, but outside the Wildlife Mitigation Tract. c. Access Road Operation. The access road through the WMT shall be designated as a homeowner access road, limited to homeowner and construction traffic only. The access road as depicted on the Site Plan shall be relocated west to be within or immediately adjacent to the powerline easement. No gatehouse or guest station shall be permitted at the access point. Appropriate signage shall be installed directing Resort guests and visitors to the main resort entrance on South Century Drive. i. Gates shall be installed and maintained as reasonably practical at the south terminus of the Resort road and Vandevert Road; at the interior location set forth on the Site Plan. The gates shall be closed and operable by a key card, vehicle transponders or other similar equipment 24 hours per day. ii. The access road shall be designed in a manner to reduce speeds (including one or more of the following features: sinuous alignment, bulb outs, traffic calming features) and shall be posted with a 20 MPH limit and identified as a wildlife corridor. iii. Educational signage shall be placed in an appropriate location at the boundary of the WMT identifying the area as such, and explaining the need not to disturb habitat or species within the WMT. 4. Structures. No structures other than the access road, gates and proposed walking trails as shown on the Site Plan shall be permitted in the WMT. 5. Management in the WMT. Consistent with the wildlife management report prepared for the Resort, the following management measures shall be implemented: a. Rock Outcrops. Rock outcrops and piles provide unique habitat qualities and serve as a keystone habitat niche within the WMT. Accordingly, any management activities should avoid such outcrops and the surrounding vegetation; b. Snags. Standing snags provide important habitat niches, especially for avian and small mammal species. Accordingly, all existing wildlife snags should be retained, unless they are determined to pose a wildfire hazard. 6. Other Habitat Conservation Measures. Vegetation shall be monitored, and weeds and non- native plants will be controlled and eradicated when possible; a. Brush patches will be maintained in a mosaic pattern to provide various stages of growth so that both cover and forage are provided. Vegetation management activities performed in the WMT shall be performed in the fall or spring (outside of deer winter season) when areas are accessible and not under fire restrictions, except that any mowing is not to occur in the spring when there is bird nesting; b. Ponderosa pine trees (dead and living) will be preserved where possible; c. Downed logs will be retained for their wildlife value where possible; 247 -15 -000464 -CU, 247-18-000009-A Page 30 of 31 d. Firewood cutting or vegetation alteration beyond that prescribed as management for increased habitat value or as management for wildfire risk, will not be permitted; e. Prior to Final Plat Approval, nest boxes will be installed. Said nest boxes shall be maintained to benefit native bird species; f. Prior to Final Plat Approval, bat boxes will be installed on trees to benefit native bat species; g. No new fences are proposed to be included in the WMT; h. Livestock will not kept or allowed on the property; The proposed development will prohibit the recreational use of off-road motor vehicles within the WMT. Motorized vehicle use in the WMT will only be allowed for management or emergency fire vehicle access; j. The lots that are directly adjacent to the WMT will have 25 -foot setback requirements to protect the wildlife value of the area; k. A program for proper garbage storage and disposal will be instituted for all resort residences and facilities. The program will be designed to reduce the availability of human -generated food resources to predators and corvids (crows, ravens, and Jays) known to predate other wildlife species; An educational program for local residents will be initiated regarding the native wildlife populations using the WMT and the need to avoid disturbance of species within the WMT. Educational materials will include newsletters, flyers, signage on trails, or other similar outreach tools; m. No fireworks of any type will be allowed; n. No use of drones will be allowed; and o. No hunting, discharge of firearms or trapping will be allowed. DESCHUTES COUNTY PLANNING DIVISION Written by: Anthony Raguine, Senior Planner Reviewed by: Peter Gutowsky, Planning Manager Exhibits: A. Annexation II Map B. Hearings Officer decision on 247 -15 -000464 -CU C. LUBA I D. Court of Appeals Decision E. LUBA II 247 -15 -000464 -CU, 247-18-000009-A Page 31 of 31 BLANK PAGE EXHIBIT B Hearings Officer Decision April 15, 2016 DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBER: 247 -15 -000464 -CU APPLICANT: REQUEST: Steve Runner Pine Forest Development, LLC Sunriver Resort Limited Partnership P.O. Box 3589 Sunriver, OR 97707 Conditional use permit application to expand the Caldera Springs Destination Resort ("Resort") to include the subject property. The annexed property will include a maximum of 395 single-family residences, a maximum of 95 additional overnight lodging units, recreation facilities and additional resort core amenities. As part of this application, the applicant seeks to modify the Caldera Springs Conceptual Master Plan and ratio of single-family residences to overnight lodging units from 2:1 to 2.5:1. STAFF CONTACT: Anthony Raguine, Senior Planner HEARING DATES: October 27, November 24 and December 15, 2015 RECORD CLOSED: December 29, 2015 I. STANDARDS AND APPLICABLE CRITERIA: Title 18 of the Deschutes County Code ("DCC") Chapter 18.40, Forest Use Zone — F2 Chapter 18.80, Airport Safety Combining Zone — AS Chapter 18.84, Landscape Management Combining Zone — LM Chapter 18.88, Wildlife Area Combining Zone — WA Chapter 18.108, Urban Unincorporated Community Zone — Sunriver Chapter 18.113, Destination Resorts — Destination Resort Chapter 18.128, Conditional Use Permits Title 22, the Deschutes County Land Use Procedures Ordinance Title 23, The Deschutes County Comprehensive Plan Chapter 23.84, Destination Resorts Chapter 23.76, Energy Oregon Revised Statute (ORS) Chapter 197.435 to 197.467 II. FINDINGS OF FACT: A. Location: The subject property has an assigned address of 17800 Vandevert Road, Bend, and is identified as tax lot 103 on Assessor map 20-11. 247 -15 -000464 -CU - Caldera Springs 1 B. Zoning and Plan Designation: The subject property is zoned Forest Use Zone ("F2"). It is within the Airport Safety Combining Zone ("AS") associated with the Sunriver Airport; the Landscape Management Combining Zone ("LM") associated with Highway 97, Vandevert Road and South Century Drive; and the Wildlife Area Combining Zone ("WA") associated with deer migration range. The subject property is also mapped within the Destination Resort ("DR") Combining Zone for Deschutes County. C. Site Description: The irregularly shaped 614 -acre property is undeveloped with a generally level topography. Vegetation on-site consists of a dense cover of lodgepole and ponderosa pine trees. According to the applicant, the 60- to 80 -year-old trees are of various sizes arranged in small groups and dense thickets, with about 25 percent of the groups consisting purely of lodgepole pine. Understory vegetation is bitterbrush, bunchgrasses, and typical high desert vegetation. Several dirt roads and the power line right-of-way cross the site. The site is approximately 250 feet west of Highway 97 at its closest point in the southeastern corner. The property has frontage on South Century Drive along its southwestern property line, and frontage on Vandevert Road along its southern property line. D. Proposal: The applicant is requesting conditional use permit approval to expand the Resort and include the subject property. The annexed property will include a maximum of 395 single-family residences, a maximum of 95 additional overnight lodging units, recreation facilities and additional resort core amenities. As part of this application, the applicant seeks to modify the Caldera Springs Conceptual Master Plan and ratio of single-family residences to overnight lodging units from 2:1 to 2.5:1. Additionally, the applicant proposes a new access to the Resort from Vandevert Road. The proposal includes two options detailed in the applicant's Exhibit A and A-1. Option 1 includes two areas of visitor -oriented accommodations ("VOA")/cluster housing, one in the eastern portion of the annexation property and one at the south end of the property. Option 2 also includes two areas of VOA/cluster housing, one at the north end of the annexation property and one at the south end of the property. The application includes a possible phasing plan, detailed on Exhibit A-2 and A-3, for each Option discussed above. Each plan includes five to nine phases and an anticipated 40 to 90 Tots per phase. The exhibits indicate development of a phase every one to four years as the real estate market dictates. E. Surrounding Land Uses and Zoning: The site is bounded to the north by the Sunriver Business Park on land zoned Urban Unincorporated Community Zone Sunriver — Business Park District ("SUBP"), and by multi -family residential uses on land zoned Urban Unincorporated Community Zone Sunriver — Multiple Family Residential District ("SURM"). To the east is the Burlington Northern Railroad. Beyond the railroad tracks are vast tracks of undeveloped US Forest Service lands that are zoned Forest Use ("F1"), and Highway 97. To the south, across Vandevert Road are two undeveloped, privately owned, properties zoned F2, and a residential subdivision zoned Rural Residential ("RR10"). Along much of the property's western boundary is the Caldera Springs Destination Resort. As noted above, the property's southwestern boundary is formed by South Century Drive. Across South Century Drive are residential uses on lands zoned F2, including the Crosswater development. To the northwest are residential 247 -15 -000464 -CU - Caldera Springs 2 uses in the Sunriver Resort on lands zoned Unincorporated Community Zone Sunriver — Single Family Residential District ("SURS") and SURM. F. Land Use History: The County approvals associated with the existing Resort are summarized below. Land Use Approval Description CU -05-07 Conceptual Master Plan ("CMP") M-05-01 Final Master Plan ("FMP") TP -05-961 Tentative Plan for up to 320 single-family residential homesites, various future development tracts, rights-of-way, and easements for infrastructure SP -05-53 Site Plan for the Resort's first phase including 150 separate rentable units for visitor lodging; eating establishments for at least 100 persons; meeting rooms for at least 100 persons, nine -hole short golf course; three practice golf holes; practice putting green; lake; and clubhouse which will incorporate the eating establishments and meeting rooms SP -06-14 Site Plan for the Resort amenities including fitness/pool center, pool, basketball court, play area, tennis courts, lake expansion, relocated parking area, lawn sports area, and pavilion FPA -06-12 Final Plat approval for TP -05-961 SP -06 -52/V -06 -Site 16/MA-06-23 Plan for overnight lodging units (OLUs) within Tracts 2 and 3; Minor Variance to reduce the parking area setback from 250 feet to 225 feet SP -06-55 Site Plan for a pump station associated with the Resort water feature SP -06-61 Site Plan for OLUs in Tract 1, roadway and driveway areas, and pedestrian bike paths within Tracts 1, 2 and 3 of the core Resort area; OLUs provided as lock -off units; A total of 160 OLUs will be provided within Tracts 1, 2 and 3; This Site Plan approval is intended to amend and supplement SP -05-53 MC -07-2 Modification of the Dimensional Standards approved under the CMP and FMP, to include dimensional standards for the Overnight Lodging Cottage Lots 247 -15 -000464 -CU - Caldera Springs 3 TP -07-988 Tentative Plan to divide Tracts 1, 2 and 3 into 45 lots, and to allow a Zero Lot Subdivision; Tract 1 includes 22 lots, Tract 2 includes 12 lots, and Tract 3 includes 11 lots; This division will allow the construction of the overnight lodging cottages approved under SP - 06 -52 and SP -06-61 TU -07-3 Temporary use permit to construct a model cottage in Tract 1 SP -07-25 Site plan approval for the OLUs approved under SP -06-52 and SP - 06 -61 to address the lot configurations approved under TP -07-988 MP -08-88 Minor Partition to divide Tract FA into three parcels; Parcel 1 includes a portion of the golf course; Parcel 2 includes the pavilion, fitness center, lakes and a portion of the parking lot and open spaces; Parcel 3 includes the lakehouse facility and a portion of the parking lot in the core area of the Resort MP -08-89 Minor Partition to divide Tract A in the Phase 1 subdivision into two parcels; Parcel 1 includes a portion of the golf course; Parcel 2 includes the open spaces DR -13-23 Declaratory Ruling to determine if the site plan approval under SP - 07 -25, authorizing OLUs, roads and bike paths, has been initiated MC -13-4 Modification of the CMP and FMP to change the required availability of OLUs from 45 weeks to 38 weeks MC -13-5 Modification of SP -07-25 to change the required availability of OLUs from 45 weeks to 38 weeks The existing Caldera Springs Destination Resort is approximately 390 acres in size and includes 160 overnight lodging units, 320 single family residential lots, and recreation facilities including a pool, clubhouse, golf course and trails. G. Public Agency Comments: Deschutes County Building Division. The Deschutes County Building Safety Division's code required Access, Egress, Setbacks, Fire & Life Safety, Fire Fighting Water Supplies, etc. will be specifically addressed during the plan review process for any proposed structures and occupancies. All Building Code required items will be addressed when a specific structure, occupancy, and type of construction is proposed and submitted for plan review. Deschutes County Road Department. I have reviewed the materials for the above application and have the following comments: 247 -15 -000464 -CU - Caldera Springs 4 1. Vandevert Road is classified as a County collector with an ADT of 2240. Existing width is 27.5 feet so when the development uses Vandevert for access, it will have to be widened to 15 feet from centerline along the frontage of the property. 2. The Traffic Impact Analysis did not discuss any required improvements to the intersection of the new access with Vandevert Road. I am thinking that most of the traffic will be using the Highway 97/South Century Interchange to access this development but I am curious as to what amount of traffic is projected to use the access off of Vandevert Road. Would this intersection be analyzed when the phasing of the resort required its connection? Planning Division Senior Transportation Planner. The following comments on the revised TIA were submitted on October 10, 2015: 1. The new approach apron to Vandevert must be paved to reduce the amount of gravel and debris being tracked onto Vandevert from the site. 2. The correct citation to Deschutes County's traffic study requirements is DCC 18.116.310; the traffic requirements were shifted there from DCC 17.16.115 in 2014. The following comments regarding safety concerns raised by the public were submitted on October 26, 2015: 1. While there may be longer delays for Crosswater residents to enter onto South Century Drive, the traffic study indicates the South Century Drive intersection that provides access to Crosswater on the west leg and Caldera Springs on the east leg meets the Deschutes County mobility standard. In other words, a minor potential degradation in traffic operations is insufficient to require major improvements. Additionally, there is adequate capacity on South Century Drive itself; therefore no center turn lanes nor acceleration lanes nor additional travel lanes are required. 2. Currently there is no programmed construction project from ODOT to introduce turn restrictions at 97/Vandevert. If ODOT did program a construction project to make Vandevert/97 a right -in, right -out only (RIRO) intersection, the traffic impacts would be analyzed at that time. The County Transportation System Plan ("TSP") on page 148 does anticipate a future closure of Vandevert Road from US 97. If ODOT requests the complete closure of Vandevert at 97, a public hearing is required before the Board of County Commissioners and people could then state their case. I would assume ODOT would provide some high-level analysis of the resulting traffic effects on South Century if Vandevert were closed given traffic going to or coming from the north would likely divert to the South Century/US 97 interchange. The County's 2012 TSP at Table 5.3.T1 (County Road and Highway Projects) does list a future roundabout at Spring River/South Century Drive as a medium priority (construction planned in 6-10 years or 2018- 2022 assuming adequate funding). The TSP also has a roundabout at Huntington/South Century as a low priority (construction planned for 11-20 years or 2023-2032, assuming adequate funding). 247 -15 -000464 -CU - Caldera Springs 5 3. The intersection of South Century Drive/Caldera Springs-Crosswater entrances meets the Deschutes County mobility standards based on the accepted TIA; therefore a roundabout at the South Century Drive/Caldera Springs-Crosswater entrance is not warranted. 4. DCC 18.116.310(G) sets the requirements for what a TIA must consider. Admittedly, the requirements through 18.116.310 are oriented toward motor vehicles. However, South Century Drive is a County collector and has adequate shoulders. The County in Deschutes County Code 17.48 (Design and Construction Specifications) and Table A requires paved shoulders ranging in width from 3' to 5'. The shoulders on South Century comply. An increase in traffic from Caldera Springs will not change the dimensions of those shoulders. The most recent (2011) figures for South Century Drive indicates the average daily traffic (ADT) between Spring River Road and Huntington road ranges from 2,863 to 3,848 ADT. The County TSP on pages 80-81 discusses level of service (LOS) standards as they relate to volumes for road segments. The County standard for a two-lane rural road is LOS D, which means 5,701-9,600 ADT. Therefore, based on the combination of shoulder width, current traffic volumes, and future traffic volumes from the resort, South Century Drive will continue to meet performance standards and provide sufficient shoulders for cyclists to ride. 5. The Bend -La Pine School District locates bus stops. Buses come with beacons and stop paddles and motorists are required to yield to school buses. Schools typically end and deliver their students before the p.m. peak hour traffic begins. Additionally, traffic exiting the two resorts is controlled by stop signs and traffic entering the two resorts must slow to turn into the entrances. 6. The TIA indicates even with development traffic, the intersection of South Century/and the entrances to Crosswater and Caldera Springs will meet the County's mobility standard. Additionally, even with the increased traffic there will still be sufficient gaps in northbound and southbound traffic on South Century Drive for pedestrians, bicyclists, and golf carts to cross the roadway. 7. Large events require approval either from the County via an Outdoor Mass Gathering permit or permits from the County's Risk Management Unit. In either case, the event must address traffic via a management plan, which typically includes the use of state -certified flaggers to direct traffic. If there were a large event, the traffic from the Caldera Springs expansion would be practically indiscernible from the volumes related to the event(s). 8. Staff refers to the Oct. 15, 2015, Technical Memo from Kittelson & Associates which concentrates on the site's access to Vandevert Road and the Vandevert Road/97 intersection. Oregon Department of Fish and Wildlife ("ODFW'). ODFW submitted the following comments via email on October 12, 2015: ODFW has reviewed the Wildlife Habitat Evaluation Procedure and Mitigation Plan. The mitigation plan includes modifications to the resort, including an east -west wildlife travel corridor along the southern boundary of the property. The modifications are in agreement with ODFW recommendations to maintain wildlife movement through the 247 -15 -000464 -CU - Caldera Springs 6 area. ODFW further recommends that open space be maintained to the extent possible throughout the development to promote wildlife passage. The mitigation plan also states that "vegetation would be managed within the corridor to maintain native plant species that will continue to provide both cover and forage for wildlife moving through the area." ODFW recommends that as much native vegetation as possible be established throughout the project site and that nonnative invasive plants be controlled. Oregon Department of Transportation ("ODOT"). ODOT requested the original TIA be revised to reflect the new access point to Vandevert Rd. Additional Comments ODOT is satisfied that the project will not adversely affect the operation of the US 97 intersection at Vandevert with the proposed mitigation. The proposed mitigation is to limit the Vandevert access to construction traffic only or to restrict outbound left -turn movements until such time as the Vandevert connection to US 97 is closed or restricted. Restricting outbound left -turns would be less effective and ODOT would request the opportunity to review the turn -restriction design prior to it being permitted. In response to staff's question regarding the potential for mitigation in the form of a median on Highway 97, as identified on page 15 of the amended TIA, ODOT provided the following response ODOT is open to discussions to close or restrict access to the US 97/Vandevert intersection, but the timing of that improvement is uncertain. La Pine Rural Fire Protection District. Thank you for the opportunity to comment on the conditional use permit application 247 -15 -000464 -CU to expand the Caldera Springs resort. The developer has been in contact with the fire district from the very initial planning phases and has worked to bring this property within the fire district. The property now has fire protection from La Pine Rural Fire Protection District and additional summer forestry patrol from the Oregon Department of Forestry. The developer to date has shown adequate planning for access (roads), water supply (fire hydrants), suitable firewise building and fire resistive landscaping and other issues pertaining new developments and the fire codes as well as an excellent performance history with the existing property development. The district thus supports this new development and has no issues with the conditional use permit and the requested modification to the developments master plan per single family and overnight ratios from 2:1 to 2.5:1. The following agencies did not respond or had no comments. Deschutes County Assessor, Deschutes County Environmental Soils Division, Watermaster — District 11, Bend -La Pine School District, Oregon Department of Environmental Quality, Oregon Department of Forestry, Oregon Department of Aviation — Project and Planning Division, Deschutes National Forest, Sunriver Utilities, Deschutes County Forester, State Fire Marshal, and U.S. Fish and Wildlife Service. H. Public Comments: As of the date of the staff report, a number of emails and letters, and a petition, were received indicating opposition to the project. Staff identified the following general opposition issues: 247 -15 -000464 -CU - Caldera Springs 7 1. Greater difficulty merging onto South Century Drive by residents of the Crosswater development' 2. If ODOT limits access from Highway 97 onto Vandevert Road, traffic onto South Century Drive will increase exacerbating congestion caused by the proposal 3. Consider roundabout at the entrance to Crosswater/Caldera Springs on South Century Drive 4. Safety concern for cyclists along South Century Drive due to increased traffic from the proposal 5. Carrying capacity of utilities and services 6. This annexation should be viewed as a standalone destination resort 7. Increase in rentable units with this proposal creates too much competition for other owners who rent dwelling units in the area 8. Increased traffic creates concern for students because bus stops are located at the Crosswater and Caldera Springs entrances 9. Increased traffic creates concern for pedestrians, bicycles, and golf carts moving between Crosswater and Caldera Springs, and along South Century Drive 10. Increased traffic exacerbates congestion issue during special events that draw large crowds to Crosswater 11. Increased traffic exacerbates congestion and safety issue at the Vandevert Road/Highway 97 intersection 12. Impacts to livability within the Powder Village Complex due to location of secondary access road along the northern boundary of the project site Additional Comments Comments submitted since October 22, 2015 public hearing 13. Concern regarding deer and elk casualties due to vehicular strikes 14. Concern regarding dedication of land near Harper Bridge for public river access 15. Access to existing Caldera Springs from South Century Drive is inadequate to handle increase in traffic from expansion 16. The proposal should be rejected for the same reasons the Governor's Natural Resource Office rejected a proposal to create a new destination resort on the subject property 1 The sole access into Crosswater is directly opposite the existing Resort access. 247 -15 -000464 -CU - Caldera Springs 8 17. Concern regarding the cost to replace the Sunriver Sewage Treatment Plant due to increased use 18. Concern regarding increasing nitrite concentrations due to unsewered lots 19. Appropriateness of clustered communities between Bend and La Pine 20. Expansion will provide positive impact to tourism for the region Notice: The applicant submitted a Land Use Sign Affidavit indicating the land use action sign was posted on the property on September 3, 2015. A notice of the applications was mailed on September 11, 2015. Comments from the public and from public agencies are detailed above. Notice of the public hearing was published in The Bulletin on October 4, 2015, and mailed to parties of record on October 5, 2015. J. Lot of Record: The applicant made the following argument on compliance with the County's lot of record requirement: Prior to 2006 the subject property was owned by the United States Government, acting by and through the United States Department of Agriculture aka, the US Forest Service. Pursuant to the Bend Pine Nursery Land Conveyance Act of 2000 (P.L.106-526: 114 Stat. 2512), Congress authorized the sale of a number of isolated USFS parcels. The subject property was one such isolated parcel (Tract C Administrative Sale; DES No. 178, Parcel A). The property was conveyed to Pine Forest Development, LLC on November 14, 2006 pursuant to a quitclaim deed, a copy of which is attached. The deed was recorded on November 21, 2006 (2006-77006), in the real property records of Deschutes County. The subject property is 617.27 acres, more or less, in size, exceeding the 5,000 square foot minimum. As a federally owned parcel, it was not subject to any state or county subdivision requirements. The subject lot of record was created by the deed referenced above and was recorded in the real property records of Deschutes County. Only one legal description was provided, consequently, the subject property contains only one legal lot of record. Staff noted that a Hearings Officer and the Board of County Commissioners made a finding that the subject property is a legal lot of record for the rezone approval of the property.2 COLW argued that the subject property is not a lot of record for two reasons. First, that because the parcel was federally owned and transferred to the applicant, it did not meet the County subdivision or partition rules. COLW argued that this position is supported by a prior Hearings Officer decision in Thompson. Second, even though a prior zone change approved by the BOCC found the parcel to be a lot of record, that decision is not determinative. The Hearings Officer agrees with the applicant. As for the BOCC's prior recognition of the lot, no party argues that the BOCC somehow got that decision wrong in 2006 when 2 Reference land use file number ZC-06-3. 247 -15 -000464 -CU - Caldera Springs 9 the property was rezoned. Of course, the time to appeal that decision is long past. Even if Thompson militated for a different outcome, which it does not as explained below, the Hearings Officer considers that prior decision to be the BOCC's interpretation as to the application of the County's lot of record criteria to the subject property, and absent any colorable argument that the BOCC erred in that decision, the Hearings Officer will be adhere to it. As for the application of Thompson, I agree with the applicant that the facts in that case were significantly different than those at issue here. First, while Thompson sought to recognize a lot that had been transferred from the federal government, the applicant's primary argument was that the federal process that led to the transfer preempted all other local regulation. Here, the applicant does not so argue, and the transfer appears to be a simple and straight forward quit claim deed conveyance which fits at least one of the County's lot of record criteria. Second, the applicant in Thompson sought to have a substandard size lot recognized for the F-1 zone — in order to have the lot qualify for a lot of record forest dwelling under ORS 215.700. Again, that is not the case with this application as there is a single lot of approximately 617 acres, and the applicant is relying on the existing DR designation as the basis for the proposal. For these reasons, the Hearings Officer finds that the subject property is a legal lot of record under DCC 18.04.030(A)(3). K. PROCEDURAL HISTORY: A public hearing was held on October 27, 2015. The Hearings Officer provided the statements required by ORS 197.763. There were no ex parte contacts to report, and no party challenged the Hearings Officer's fitness to conduct the hearing. Staff provided a PowerPoint outlining the proposal. Several transportation issues were discussed including an explanation of the traffic counts near Vandevert Road and reasons why the prior counts and seasonal factors were still current enough to provide reliable evidence. The applicant's attorney, Steve Hultberg, provided a short history of the existing resort and outlined the proposed expansion. He explained that the proposal was not a standalone resort, but an expansion of the existing resort. The proposal would encompass about 395 single family residences which is approximately 43% of what would otherwise be permitted. A maximum of 95 new overnight units were also proposed. He noted that the wildlife plan for the expansion had received a favorable review from the Oregon Department of Fish and Wildlife. However, more work was needed on the proposal's wildfire contingency plan. Sewer and water would rely on existing systems, although the applicant acknowledged that service expansion might be needed for the new portion of the resort and, that if so, the resort would pay for its proportionate share of that cost. Wendy Wente, the applicant's wildlife biologist, explained a 125 acre set aside built into the proposal. The east — west wildlife corridor would be preserved, she said, primarily to benefit mule deer. With the open plan of the development and preservation of existing native plants, she concluded that the proposal met the "no net loss" of habitat standard required by the DCC. Matt Kittelson added some transportation information addressing the interchange at Hwy 97 and S. Century drive, which would serve the new development. Even with the additional trips, he concluded that the intersection would operate at 247 -15 -000464 -CU - Caldera Springs 10 County required service levels. He acknowledged that the Vandevert/Hwy 97 intersection is planned to be closed sometime in the future and the County's Transportation System Plan includes that closure. However, ODOT is the deciding party on when the closure might occur, and no date has yet been set for the possible closure. Several individuals from the Sunriver Owners Association ("SROA") testified as neutral parties. They raised concerns about the capacity of the current water system to adequately supply water to the expanded resort. Similarly, they voiced concern about the capacity of the sewer system. Increased traffic impacts on roads maintained by SROA were also of concern. There was also significant comment on the potential impact on nearby public recreational facilities. In particular, SROA members asked for more analysis and action on the Harper Bridge boat access to the Deschutes River. Mark Murray speaking for the Sunriver Service District asked whether notice of the proposal had been provided to the Deschutes County Sheriff, La Pine Fire District, and Sunriver Police. He was also concerned about the seasonal adjustment for the traffic counts taken by the applicant. Similar concerns about the traffic counts were raised by Wade Watson, who noted that during the month of April when the counts were taken, many seasonal residents were gone, and the golf course was still closed. Several individuals raised concerns about the resident mule deer and their ability to migrate and move safely across Hwy 97. Carol Macbeth, representing Central Oregon Land Watch ("COLW'), provided written comments in opposition to the proposal and summarized some of them at the hearing. She argued that state law does not permit "expansion" of destination resorts on resource designated lands. She said the expansion cannot meet the requirements of Statewide Planning Goal 8 for destinations resorts. She stated that any new development will need an exception to Goal 8. As for the overnight accommodations required under state law for destination resorts, she stated that only 38 overnight rentals appear on the resort's website when 152 are required. As for wildlife habitat, she argued that new interpretations of the requirements for destination resorts would require 365 acres of habitat mitigation associated with the migration corridor. She also noted that the Vandevert/Hwy 97 intersection has had 30 accidents in the past 10 years. Pam Burley argued that the overnight lodging units were insufficient in number and the additional proposal would not be able to hit the required ratio of overnight rental to private residential units. She also noted that the analysis on water quantity was insufficient due to current demands and the golf course. At the end of the hearing the parties agreed to a continued hearing. The Hearings. Officer set the continued hearing for November 24, 2015 at 6:30 p.m. The record was left open during this period. On November 24, 2015, severe snowy weather prevented the public from attending the hearing, and the applicant agreed to another continuance to December 15, 2015. 247 -15 -000464 -CU - Caldera Springs 11 At the December 15, 2015 hearing, the Hearings Officer again provided the statements required by ORS 197.763. There were no ex parte contacts to report, and again no party challenged the Hearings Officer's fitness to conduct the hearing. Staff presented an amended Staff Report that accommodated additional evidence submitted after the October 27, 2015 hearing. The applicant provided an overview of additional information submitted into the record. The information included the following: • Evidence related to the question of whether the subject property constitutes a "lot of record." • Information showing that vegetated berms would be constructed on the subject property along S. Century Drive. • Applicant's amended wildlife/wildfire plans which attempted to coordinate the two. • A refined TIA with the requested seasonal adjustment. Included a memo from Peter Russell confirming the adjustment still allowed the development to meet the County's level of service standards. This information was all presented in a written submission dated November 10, 2015. Carol Macbeth provided a written comment dated December 15, 2015 and provided opposition testimony on behalf of COLW. She discussed the following issues at the hearing: • Reiterated argument that "expansions" of existing destination resorts are not allowed under Goal 8. • She questioned whether the proposal could meet the minimum investment threshold for destination resorts under state law. • The existing resort is not meeting the overnight lodging requirements — only 38 houses and 131 unique rooms. The expansion would perpetuate that failure. • The wildfire risk is too high, and there is not an evacuation plan or route provided. • DCC 18.113.120 requires that the mitigation for incursion into the mule deer migration habitat include a conservation easement to protect the previously identified Goal 5 resource. • She continued to argue that the subject property does not qualify as a lot of record. Ron Buris again raised the concern about recreational access at Harper Bridge. He argued that the prior destination resort approval included a condition requiring improvements at the boat access and that condition still had not been met. 247 -15 -000464 -CU - Caldera Springs 12 Staff noted that SROA had submitted an e-mail and attached document into the record just prior to the hearing. At the end of the hearing the Hearings Officer considered requests to leave the record open. The Hearings Officer set an open record schedule as follows: 1) argument and evidence from any party could be submitted until December 22, 2015 at 5:00 p.m. — limited to a response to COLW's December 15, 2015 submission, and SROA's December 15, 2015 email and attached argument, 2) the applicant's final argument was due December 29, 2015 by 5:00 p.m. On December 22, 2015, the applicant submitted a letter and exhibits as rebuttal testimony to the December 15, 2015 submissions by COLW and SROA. In that letter the applicant requests that the Hearings Officer exclude from the record SROA's exhibits or attachments to their December 15, 2015 submission because it was emailed during the hearing and the attachments were hand delivered on December 16, 2015. The applicant argues that these documents should be rejected because the record was closed on December 15, 2015. The Hearings Officer finds that SROA's December 15, 2015 email and subsequent hand delivery of attachments on December 16, 2015 was sufficient to include those items in the record. There is no prejudice to any party by retaining them in the record. All parties were on notice during the hearing that SROA was submitting documents into the record. The parties were on notice and had time to respond to those documents by December 22, 2015 as provided by the Hearings Officer's instructions. On December 22, 2015, COLW also submitted a letter that purports to comply with the Hearings Officer's instructions for the open record period. On December 23, 2015, the applicant objected to the submission on the basis that the letter reiterated prior arguments and statements made during the December 15, 2015 hearing. Upon reviewing the contents of COLW's December 22, 2015 letter, the Hearings Officer agrees with the applicant that it should not be included in the record. Based on the Hearings Officer's instructions at the December 15, 2105 hearing, rebuttal testimony would be allowed directed at COLW's December 15, 2015 letter and SROA's December 15, 2015 submission. As such, COLW would not need to respond to its own December 15, 2015 letter — thereby leaving only the SROA letter as a valid document to respond to. The December 22, 2015 COLW letter does not respond to SROA's arguments. COLW reiterates prior arguments and augments rather than providing rebuttal testimony. As such, the December 22, 2015 letter does not comply with the Hearings Officer's instructions, is not part of the record, and will not be considered in this decision. The applicant submitted a final argument on December 29, 2015 in compliance with the deadline set by the Hearings Officer. On the same day, the applicant submitted a precautionary response to COLW's December 22, 2105 letter. Since the Hearings Officer will not consider COLW's December 22, 2015 letter, it will not be necessary to include in the record or review the applicant's December 29, 2015 response. 247 -15 -000464 -CU - Caldera Springs 13 III. CONCLUSIONS OF LAW: Section 18.113.080. Procedure for Modification of a Conceptual Master Plan. Any substantial change, as determined by the Planning Director, proposed to an approved CMP shall be reviewed in the same manner as the original CMP. An insubstantial change may be approved by the Planning Director. Substantial change to an approved CMP, as used in DCC 18.113.080, means an alteration in the type, scale, location, phasing or other characteristic of the proposed development such that findings of fact on which the original approval was based would be materially affected. FINDING: Staff found, and the Hearings Officer agrees, the proposed annexation is a substantial change which should be reviewed in the same manner as the original CMP. For this reason, all criteria which apply to destination resorts apply to the subject property and the applicant's proposal. Title 18, Deschutes County Zoning Code A. Chapter 18.40. Forest Use Zone The following uses and their accessory uses may be allowed in the Forest Use Zone, subject to applicable provisions of the Comprehensive Plan, DCC 18.40.040 and other applicable sections of DCC Title 18: D. Destination Resorts where mapped in a DR zone and subject only to the provisions of DCC 18.113 and other applicable provisions of DCC Title 18 and the Comprehensive Plan not contained in DCC 18.40. FINDING: The applicant has applied for a conditional use permit to expand the existing Caldera Springs Destination Resort. The subject property is mapped for destination resorts on the Deschutes County destination resort map. Significantly, none of the participating parties argue that the subject property is not covered by the DR zone. The uses allowed with the DR Zone are listed under DCC 18.113 and are not regulated by the conditional use criteria set out in the F2 Zone provisions. Likewise, the setbacks and other development standards for development within a destination resort are not regulated under DCC 18.40, but are regulated under DCC 18.113. The applicable provisions of Title 18 and the Comprehensive Plan are addressed below. B. Chapter 18.80. Airport Safety Combining Zone — AS 1. Section 18.80.044. Land Use Compatibility. Applications for land use or building permits for properties within the boundaries of this overlay zone shall comply with the requirements of DCC 18.80 as provided herein. When compatibility issues arise, the Planning Director or Hearings Body is required to take actions that eliminate or minimize the incompatibility by choosing the most compatible location or design for the boundary or use. Where compatibility issues persist, despite actions or conditions intended to eliminate or minimize the incompatibility, the Planning Director or Hearings Body may disallow the use or expansion, except where the action results in loss of current operational levels and/or the ability of the airport to grow to meet future 247 -15 -000464 -CU - Caldera Springs 14 community needs. Reasonable conditions to protect the public safety may be imposed by the Planning Director or Hearings Body. FINDING: The northern half of the annexation property lies within the AS Combining Zone associated with the Sunriver Airport. The applicable provisions of DCC 18.80 are addressed below. A. Noise. Within airport noise impact boundaries, land uses shall be established consistent with the levels identified in OAR 660, Division 13, Exhibit 5 (Table 2 of DCC 18.80). Applicants for any subdivision or partition approval or other land use approval or building permit affecting land within airport noise impact boundaries, shall sign and record in the Deschutes County Book of Records, a Declaration of Anticipated Noise declaring that the applicant and his successors will not now, or in the future complain about the allowed airport activities at the adjacent airport. In areas where the noise level is anticipated to be at or above 55 Ldn, prior to issuance of a building permit for construction of a noise sensitive land use (real property normally used for sleeping or as a school, church, hospital, public library or similar use), the permit applicant shall be required to demonstrate that a noise abatement strategy will be incorporated into the building design that will achieve an indoor noise level equal to or less than 55 Ldn. [NOTE: FAA Order 5100.38A, Chapter 7 provides that interior noise levels should not exceed 45 decibels in all habitable zones.] FINDING: The subject property is located outside of the Sunriver Airport noise impact boundaries. This criterion does not apply. B. Outdoor lighting. No new or expanded industrial, commercial or recreational use shall project lighting directly onto an existing runway or taxiway or into existing airport approach surfaces except where necessary for safe and convenient air travel. Lighting for these uses shall incorporate shielding in their designs to reflect light away from airport approach surfaces. No use shall imitate airport lighting or impede the ability of pilots to distinguish between airport lighting and other lighting. FINDING: The applicant does not propose any industrial uses. Commercial and recreational uses are included in the project. The property is located over 3,000 feet from the Sunriver Airport runway, taxiway, and approach surfaces. The applicant agrees that lighting for the project will comply with County lighting ordinances and, therefore, will be shielded and directed in conformance with standards under DCC 18.80.044(8). A condition of approval for commercial and recreational uses will ensure compliance with this criterion. C. Glare. No glare producing material, including but not limited to unpainted metal or reflective glass, shall be used on the exterior of structures located within an approach surface or on nearby lands where glare could impede a pilot's vision. FINDING: The subject property is over 3,000 feet from the Sunriver Airport approach surfaces. Moreover, the applicant indicates that no glare producing materials will be 247 -15 -000464 -CU - Caldera Springs 15 used on structures where glare could impede a pilot's vision. No evidence has been provided that undermines this statement. This criterion is met with a condition of approval. D. Industrial emissions. No new industrial, mining or similar use, or expansion of an existing industrial, mining or similar use, shall, as part of its regular operations, cause emissions of smoke, dust or steam that could obscure visibility within airport approach surfaces, except upon demonstration, supported by substantial evidence, that mitigation measures imposed as approval conditions will reduce the potential for safety risk or incompatibility with airport operations to an insignificant level. The review authority shall impose such conditions as necessary to ensure that the use does not obscure visibility. FINDING: No industrial operations are proposed. This criterion does not apply. E. Communications Facilities and Electrical Interference. No use shall cause or create electrical interference with navigational signals or radio communications between an airport and aircraft. Proposals for the location of new or expanded radio, radiotelephone, and television transmission facilities and electrical transmission lines within this overlay zone shall be coordinated with the Department of Aviation and the FAA prior to approval. Approval of cellular and other telephone or radio communication towers on leased property located within airport imaginary surfaces shall be conditioned to require their removal within 90 days following the expiration of the lease agreement. A bond or other security shall be required to ensure this result. FINDING: No new or expanded radio, radiotelephone, television transmission facilities or electrical transmission lines are proposed. This criterion does not apply. F. Limitations and Restrictions on Allowed Uses in the RPZ, Approach Surface, and Airport Direct and Secondary Impact Areas. For the Redmond, Bend, Sunriver, and Sisters airports, the land uses identified in DCC 18.80 Table 1, and their accessory uses, are permitted, permitted under limited circumstances, or prohibited in the manner therein described. In the event of conflict with the underlying zone, the more restrictive provisions shall control. As used in DCC 18.80.044, a limited use means a use that is allowed subject to special standards specific to that use. FINDING: The subject property is not located within the Runway Protection Zone, Approach Surface, or the Airport Direct Impact Area. However, the northern half of the annexation property is within the Airport Secondary Impact Area3 associated with the Sunriver Airport. Table 1 of DCC 18.80 permits all the proposed uses included in the Resort expansion. This criterion is met. 3 DCC 18.80 022(1) provides the following definition: "Airport Secondary Impact Area. The area between 5,000 and 10,000 feet from an airport runway. (Redmond, Bend and Sunriver)" 247 -15 -000464 -CU - Caldera Springs 16 2. Section 18.80.054. Conditional Uses. Uses permitted conditionally shall be those identified as conditional uses in the underlying zone with which the AS Zone is combined, and shall be subject to all conditions of the underlying zone except as provided in DCC 18.80.044. FINDING: Destination resorts are permitted conditionally in the underlying F2 Zone and are, therefore, permitted conditionally in the AS Combining Zone. 3. Section 18.80.072. Water Impoundments. Any use or activity that would result in the establishment or expansion of a water impoundment shall comply with the requirements of DCC 18.80.072. (ORS 836.623(2); OAR 660-013-0080(1)(f)] C. Process. 5. Exemptions. The requirements of DCC 18.80.072 shall not apply to: c. Lands owned or managed by Sunriver Resort, Crosswater and their affiliates. FINDING: The subject property is owned and managed by Pine Forest Development, LLC, an affiliate of Sunriver Resort Limited Partnership. This section does not apply. 4. Section 18.80.076. Water Impoundment Notification. A. Deschutes County shall provide notice to the Oregon Department of Aviation when it, or its designee, receives an application for a comprehensive plan amendment, zone change or permit as defined in ORS 215.402 or 227.160 that, if approved, would result in a water impoundment larger than one-quarter acre within 10,000 feet of the Redmond, Bend, Sunriver or Sisters Airports. B. A final determination regarding a new water impoundment described in ORS 836.623 shall be made by local governments as provided in ORS 836.623. FINDING: The record shows that notice of the application was mailed to the Oregon Department of Aviation. No comments were received in response to the notice. This criterion is met. C. Chapter 18.84, Landscape Management Combining Zone — LM 1. Section 18.84.020. Application of Provisions. The provisions of DCC 18.84 shall apply to all areas within one fourth mile of roads identified as landscape management corridors in the Comprehensive Plan and the County Zoning Map. The provisions of DCC 18.84 shall also apply to all areas within the boundaries of a State scenic waterway or Federal wild and scenic river corridor and all areas within 660 feet of rivers and streams otherwise identified as landscape management 247 -15 -000464 -CU - Caldera Springs 17 corridors in the comprehensive plan and the County Zoning Map. The distance specified above shall be measured horizontally from the centerline of designated landscape management roadways or from the nearest ordinary high water mark of a designated landscape management river or stream. The limitations in DCC 18.84.020 shall not unduly restrict accepted agricultural practices. FINDING: No areas of the property are within the boundaries of a State scenic waterway or Federal wild and scenic river corridor. A small portion of the northwest corner and a portion of the southwest corner of the property are located within the LM Combining Zone associated with South Century Drive. A portion of the southeast corner of the property is within the LM Combining Zone associated with Highway 97. And finally, a strip of land along the southern edge of the property is within the LM Combining Zone associated with Vandevert Road. These areas are subject to the provisions of DCC 18.84. Staff recommended, and the Hearings Officer agrees, that the conditions of approval detailed below apply only to those portions of the property subject to the LM Combining Zone. 2. Section 18.84.040. Uses Permitted Conditionally. Uses permitted conditionally in the underlying zone with which the LM Zone is combined shall be permitted as conditional uses in the LM Zone, subject to the provisions in DCC 18.84. FINDING: Destination resorts are permitted conditionally in the underlying F2 Zone, and are, therefore, permitted conditionally in the LM Combining Zone. 3. Section 18.84.050. Use Limitations. A. Any new structure or substantial alteration of a structure requiring a building permit, or an agricultural structure, within an LM Zone shall obtain site plan approval in accordance with DCC 18.84 prior to construction. As used in DCC 18.84 substantial alteration consists of an alteration which exceeds 25 percent in the size or 25 percent of the assessed value of the structure. B. Structures which are not visible from the designated roadway, river or stream and which are assured of remaining not visible because of vegetation, topography or existing development are exempt from the provisions of DCC 18.84.080 (Design Review Standards) and DCC 18.84.090 (Setbacks). An applicant for site plan review in the LM Zone shall conform with the provisions of DCC 18.84, or may submit evidence that the proposed structure will not be visible from the designated road, river or stream. Structures not visible from the designated road, river or stream must meet setback standards of the underlying zone. FINDING: The applicant's Burden of Proof Exhibit A and A-1, shows the proposed resort structures will be set back at least 200 feet from South Century Drive, at least 300 feet from Vandevert Road, and at least 1,100 feet from Highway 97. All structures which 247 -15 -000464 -CU - Caldera Springs 18 may be visible from South Century Drive will be buffered through a mix of berms, setbacks and natural vegetation. Additional evidence submitted during the hearings process confirmed that the development will not be visible from S. Century Drive. However, no berms are proposed along Vandevert Road, and therefore, the design review standards are discussed below. The intervening railroad berm between the resort and Hwy 97 appears reasonably likely to screen the resort from that direction. 4. Section 18.84.080. Design review standards. The following standards will be used to evaluate the proposed site plan: A. Except as necessary for construction of access roads, building pads, septic drainfields, public utility easements, parking areas, etc., the existing tree and shrub cover screening the development from the designated road, river, or stream shall be retained. This provision does not prohibit maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act, or agricultural use of the land. FINDING: The record shows that open spaces on the subject property will incorporate natural forest lands. For the purposes of this criterion, staff found, and the Hearings Officer agrees, the removal of vegetation in accordance with any wildfire management plan is allowed as removal of hazardous vegetation. A condition of approval will ensure compliance with this criterion. B. It is recommended that new structures and additions to existing structures be finished in muted earth tones that blend with and reduce contrast with the surrounding vegetation and landscape of the building site. FINDING: All structures which may be visible from South Century Drive, Vandevert Road, and Highway 97 will be buffered through a mix of berms, setbacks and natural vegetation. Pursuant to applicable design guidelines, all structures will be finished in muted earth tones that blend with and reduce contrast with the surrounding vegetation and landscape of the building site. All development will be consistent with existing development in Caldera Springs and will match the overall aesthetic of the resort project. These standards have been incorporated into the resort's Design Guidelines and administered by the project's Architectural Review committee. A condition of approval will ensure compliance with this criterion. C. No large areas, including roofs, shall be finished with white, bright or reflective materials. Roofing, including metal roofing, shall be nonreflective and of a color which blends with the surrounding vegetation and landscape. DCC 18.84.080 shall not apply to attached additions to structures lawfully in existence on April 8, 1992, unless substantial improvement to the roof of the existing structure occurs. FINDING: The record shows that existing development at Caldera Springs does not use reflective materials or rooftops, and new development within the annexation property will follow the same design guidelines as apply to Caldera Springs. Large areas, including 247 -15 -000464 -CU - Caldera Springs 19 roofs will not be finished with white, bright or reflective materials. The existing resort's Design Guidelines will apply to the subject property and will be administered by the resort's Architectural Review committee. A condition of approval will ensure compliance with this criterion. D. Subject to applicable rimrock setback requirements or rimrock setback exception standards in DCC 18.084.090(E), all structures shall be sited to take advantage of existing vegetation, trees and topographic features in order to reduce visual impact as seen from the designated road, river or stream. When more than one nonagricultural structure is to exist and no vegetation, trees or topographic features exist which can reduce visual impact of the subject structure, such structure shall be clustered in a manner which reduces their visual impact as seen from the designated road, river, or stream. FINDING: Staff concluded that no rimrock, as defined in DCC 18.04.030, exists on-site. Staff noted that the proposed annexation layout shown in Exhibits A and A-1 establishes setbacks of at least 200 feet from South Century Drive, at least 300 feet from Vandevert Road, and at least 1,100 feet from Highway 97. Except as necessary to accomplish the goals of any wildfire management plan, staff recommended, and the Hearings Officer agrees, that a condition of approval requiring the retention of existing vegetation, trees and topographic features that will reduce visual impact as seen from the above -referenced LM roads. E. Structures shall not exceed 30 feet in height measured from the natural grade on the side(s) facing the road, river or stream. Within the LM Zone along a state scenic waterway or federal wild and scenic river, the height of a structure shall include chimneys, antennas, flag poles or other projections from the roof of the structure. DCC 18.84.080 shall not apply to agricultural structures located at least 50 feet from a rimrock. FINDING: A condition of approval will ensure that structures will not exceed 30 feet in height as measured from the natural grade facing Vandevert Road. No portion of the property is within a state scenic waterway or federal wild and scenic river. F. New residential or commercial driveway access to designated landscape management roads shall be consolidated wherever possible. FINDING: The applicant proposes to utilize the access from the existing Resort onto South Century Drive to the west. In addition, the applicant proposes a single new access onto Vandevert Road to the south. This criterion is met. G. New exterior lighting, including security lighting, shall be sited and shielded so that it is directed downward and is not directly visible from the designated road, river or stream. 247 -15 -000464 -CU - Caldera Springs 20 FINDING: The applicant indicates that all lighting will comply with the Deschutes County Outdoor Lighting Ordinance. A condition of approval will ensure compliance with this criterion. H. The Planning Director or Hearings Body may require the establishment of introduced landscape material to screen the development, assure compatibility with existing vegetation, reduce glare, direct automobile and pedestrian circulation or enhance the overall appearance of the development while not interfering with the views of oncoming traffic at access points, or views of mountains, forests and other open and scenic areas as seen from the designated landscape management road, river or stream. Use of native species shall be encouraged. (Formerly section 18.84.080 (C)) FINDING: The burden of proof shows that landscaped berms may be installed in select areas along South Century Drive and Vandevert Road. Staff's site visit revealed that even if no landscaped berms were constructed, the retention of existing vegetation and tree cover within the proposed setbacks along South Century Drive and Vandevert Road would comply with this criterion. Staff recommended, and the Hearings Officer agrees, that a condition of approval should require the retention of existing vegetation, trees and topographic features which will reduce visual impact as seen from the above -referenced LM roads, except in those locations where the applicant installs landscaped berms. I. No signs or other forms of outdoor advertising that are visible from a designated landscape management river or stream shall be permitted. Property protection signs (No Trespassing, No Hunting, etc.,) are permitted. FINDING: The applicant states that no proposed signs or other forms of outdoor advertising will be visible from a designated landscape management road. However, property protection signs (No Trespassing, No Hunting, etc.,) may be visible, as permitted. A condition of approval is warranted to ensure compliance. J. A conservation easement as defined in DCC 18.04.280 "Conservation Easement" and specified in DCC 18.116.220 shall be required as a condition of approval for all landscape management site plans involving property adjacent to the Deschutes River, Crooked River, Fall River, Little Deschutes River, Spring River, Squaw Creek and Tumalo Creek. Conservation easements required as a condition of landscape management site plans shall not require public access. FINDING: As noted previously, the subject property is not adjacent to any LM designated waterway. This criterion does not apply. 5. Section 18.84.090. Setbacks. A. Except as provided in DCC 18.84.090, minimum setbacks shall be those established in the underlying zone with which the LM Zone is combined. 247 -15 -000464 -CU - Caldera Springs 21 FINDING: As noted under DCC 18.113.060(G)(1), setbacks required by the underlying F2 Zone do not apply to a destination resort. B. Road Setbacks. All new structures or additions to existing structures on lots fronting a designated landscape management road shall be set back at least 100 feet from the edge of the designated road unless the Planning Director or Hearings Body finds that: 1. A location closer to the designated road would more effectively screen the building from the road; or protect a distant vista; or 2. The depth of the lot makes a 100 foot setback not feasible; or 3. Buildings on both lots abutting the subject lot have front yard setbacks of less than 100 feet and the adjacent buildings are within 100 feet of the lot line of the subject property, and the depth of the front yard is not less than the average depth of the front yards of the abutting lots. If the above findings are made, the Planning Director or Hearings Body may approve a less restrictive front yard setback which will be appropriate to carry out the purpose of the zone. FINDING: The proposed resort layout, shown in Exhibits A and A-1, establishes setbacks of at least 200 feet from South Century Drive, at least 300 feet from Vandevert Road, and at least 1,100 feet from Highway 97. This criterion is met. D. Chapter 18.88, Wildlife Area Combining Zone — WA 1. Section 18.88.020. Application of Provisions. The provisions of DCC 18.88 shall apply to all areas identified in the Comprehensive Plan as a winter deer range, significant elk habitat, antelope range or deer migration corridor. Unincorporated communities are exempt from the provisions of DCC 18.88. FINDING: The WA Combining Zone overlays the western approximately 80 percent of the property. 2. Section 18.88.040. Uses Permitted Conditionally. A. Except as provided in DCC 18.88.040(B), in a zone with which the WA Zone is combined, the conditional uses permitted shall be those permitted conditionally by the underlying zone subject to the provisions of the Comprehensive Plan, DCC 18.128 and other applicable sections of this title. FINDING: The proposal is conditionally allowed in the underlying F2 Zone and is, therefore, conditionally allowed in the WA Zone. The F2 Zone standards are addressed above and the conditional use criteria are addressed under DCC 18.128 below. 247 -15 -000464 -CU - Caldera Springs 22 D. Subject to DCC 18.113, destination resorts are allowed as a conditional use in that portion of the WA zone designated as the Bend/La Pine Deer Migration Corridor as long as the property is not in an area designated as "Deer Migration Priority Area" on the 1999 ODFW map submitted to the South County Regional Problem Solving Group. FINDING: The subject property is within the Bend/La Pine deer migration corridor, but is not within a migration priority area. Staff found, and the Hearings Officer agrees, the proposed destination resort is conditionally allowed. 3. Section 18.88.060. Siting Standards. A. Setbacks shall be those described in the underlying zone with which the WA Zone is combined. FINDING: As noted under DCC 18.113.060(G)(1), setbacks required by the underlying F2 Zone do not apply to a destination resort. B. The footprint, including decks and porches, for new dwellings shall be located entirely within 300 feet of public roads, private roads or recorded easements for vehicular access existing as of August 5, 1992 unless it can be found that: 1. Habitat values (i.e., browse, forage, cover, access to water) and migration corridors are afforded equal or greater protection through a different development pattern; or, 2. The siting within 300 feet of such roads or easements for vehicular access would force the dwelling to be located on irrigated land, in which case, the dwelling shall be located to provide the least possible impact on wildlife habitat considering browse, forage, cover, access to water and migration corridors, and minimizing length of new access roads and driveways; or, 3. The dwelling is set back no more than 50 feet from the edge of a driveway that existed as of August 5, 1992. FINDING: Exhibit A of the supplemental application materials illustrates roads existing as of 1992. The applicant states that numerous other roads exist which are not initially apparent from aerial photographs. Rather than attempting to identify every road within the subject property that existed as of 1992, the applicant addresses the exception provided in subsection 1 above relating to habitat values. The applicant states that strict conformance to this approval criterion would allow residential development within the proposed Wildlife Mitigation Tract, disrupting the north -south migration corridor, and also allow residential development along Vandevert Road, disrupting the proposed east -west migration corridor. This would result in segmented and disconnected habitat areas. Additionally, the applicant argues that this criterion only applies to new dwellings and that other resort facilities could be located within the WA Zone beyond the 300 -foot restriction and outside of the WA Zone within the proposed Wildlife Mitigation Tract. The applicant concludes that the proposed preservation of the Wildlife Mitigation Tract and the migration corridor along Vandevert 247 -15 -000464 -CU - Caldera Springs 23 Road provides equal, or better, protection of habitat values. This is echoed by Dr. Wendy Wente in her technical memorandum included as Supplemental Exhibit B. Per an email dated November 24, 2015, ODFW has no additional comments. The applicant submitted additional evidence on November 10, 2015. Exhibit A of that document shows that future footprints of residential dwellings and associated decks and porches can be located within 300 feet of public or private roads. The Hearings Officer cannot find contrary argument in the record. This criterion is met. 4. Section 18.88.070. Fence Standards. The following fencing provisions shall apply as a condition of approval for any new fences constructed as a part of development of a property in conjunction with a conditional use permit or site plan review. A. New fences in the Wildlife Area Combining Zone shall be designed to permit wildlife passage. The following standards and guidelines shall apply unless an alternative fence design which provides equivalent wildlife passage is approved by the County after consultation with the Oregon Department of Fish and Wildlife: 1. The distance between the ground and the bottom strand or board of the fence shall be at least 15 inches. 2. The height of the fence shall not exceed 48 inches above ground level. 3. Smooth wire and wooden fences that allow passage of wildlife are preferred. Woven wire fences are discouraged. B. Exemptions: 1. Fences encompassing less than 10,000 square feet which surround or are adjacent to residences or structures are exempt from the above fencing standards. 2. Corrals used for working livestock. FINDING: The applicant indicates that no fences are proposed as part of this development. A condition of approval will ensure compliance with this criterion. E. Chapter 18.113. Destination Resorts Zone — DR 1. Section 18.113.025. Application to Existing Resorts. Expansion proposals of existing developments approved as destination resorts shall meet the following criteria: A. Meet all criteria of DCC 18.113 without consideration of any existing development; or B. Meet all criteria of DCC 18.113 for the entire development (including the existing approved destination resort development and the proposed expansion area), except that as to the area covered by the existing destination resort, compliance with setbacks and lot sizes shall not be required. If the applicant chooses to support its proposal with any part of the existing development, applicant shall demonstrate that the proposed expansion will be situated and managed in a manner that it will be integral to the remainder of the resort. 247 -15 -000464 -CU - Caldera Springs 24 FINDING: The applicant has elected to treat the proposal as an expansion of the existing resort and meet the criteria under DCC 18.113 for the entire development. The applicant proposes to meet all the open space, recreation facilities, overnight lodging and other standards based on calculations for the entire resort. The applicant indicates that in terms of open space and density, the subject property meets the applicable standards both in conjunction with the existing Caldera Springs Destination Resort and as a standalone destination resort. Staff found this to be an acceptable method for showing compliance with DCC 18.113. In their December 15, 2105 letter, COLW argues that annexation expansions of destination resorts are not allowed for several reasons: • The underlying zone is subject to OAR 660-006 and will not allow such an expansion • The expansion is not authorized by Goal 8. • Based on the above, the proposal amounts to a rural residential subdivision which is not allowed on forest land. • The applicant's interpretation places DCC 18.113.025 in conflict with DCC 18.40.030. • The applicant's interpretation conflicts with the County's Comprehensive Plan policy 2.3.5. The applicant counters in their December 22, 2015 and December 29, 2015 letters that the BOCC has already interpreted DCC 18.113.025 to allow expansions of existing destination resorts in the Eagle Crest expansion allowed through CU-99-85/Eagle Crest III. The applicant further argues that destination resorts are allowed on forest zones through OAR 660-006-025(3)(n). Had the subject property been available at the time Caldera Springs was initially approved, the expansion area could have been approved along with it consistent with all the applicable provisions of DCC 18.113. The applicant asserts that in 2006 the expansion area could have been allowed as a phase II of Caldera Springs. The Hearings Officer agrees with the applicant for several reasons. First, although it is unclear whether arguments similar to those made by COLW here were also made in the Eagle Crest III process, that final decision (in the record as Exhibit 3 of the applicant's December 22, 2105 letter) shows that the BOCC did interpret DCC 18.113.025 to allow expansions of existing destination resorts. As such, the Hearings Officer owes some deference to that prior interpretation. Second, in order for DCC 18.113.025 to be applicable in Eagle Crest III, that section would have had to have been reviewed and acknowledged at some prior date by the Department of Land Conservation and Development and determined to be compliant with state statute and Goal 8. COLW presents no evidence to the contrary. COLW's argument that a similar interpretation in this case is not insulated by that acknowledgment process is incorrect. In fact, COLW's argument likely constitutes an impermissible collateral attack on DCC 18.113.025 for those same reasons. 247 -15 -000464 -CU - Caldera Springs 25 Third, the manner in which the BOCC has interpreted DCC 18.113.025 does not on its face allow an applicant to side step any of the other requirements of the County provisions that apply to destination resorts. The applicant correctly argues that a separate standalone destination resort could be allowed on the subject property, in part because the subject property is covered by the DR zone. If an expansion of an existing and adjacent resort is subject to the very same rules there is no logical reason why such an expansion would necessarily not be compliant with the applicable state statutes and Goal 8. For this same reason, the Hearings Officer rejects COLW's argument that in order to qualify as an "expansion" the initial Caldera Springs Conceptual Master Plan ("CMP") must have identified the expansion area. The applicant is correct to point out that there is no such requirement in the code. Similarly, there is no evidence to support COLW's argument that those participating in the initial Caldera Springs review would have objected if they had known the resort might expand in the future. The record seems to indicate that the subject property was designated DR at that time — qualifying it for a resort. In any case, those individuals interested in the currently proposed expansion have been notified and have had an opportunity to comment. The Hearings Officer can find no error here. This criterion is met. 2. Section 18.113.030. Uses in Destination Resorts. The following uses are allowed, provided they are part of, and are intended to serve persons at, the destination resort pursuant to DCC 18.113.030 and are approved in a final master plan: A. Visitor oriented accommodations designed to provide for the needs of visitors to the resort: 1. Overnight lodging, including lodges, hotels, motels, bed and breakfast facilities, time share units and similar transient lodging facilities; 2. Convention and conference facilities and meeting rooms; 3. Retreat centers; 4. Restaurants, lounges and similar eating and drinking establishments; and 5. Other similar visitor oriented accommodations consistent with the purposes of DCC 18.113 and Goal 8. FINDING: Staff found, and the Hearings Officer agrees, that the uses sought in the applicant's proposal fall within the list of uses allowed under this section. The applicant indicates that the expansion will include between 65 and 96 additional overnight lodging units. Assuming full build -out of Caldera Springs and the annexation property of 715 total residential units, a minimum of 286 OLUs, at the proposed 2.5:1 ratio, will be required for the entire resort. At the present time, the developer anticipates that a maximum of 96 OLUs will be located on the annexation property with the balance to be constructed on the remaining lots within Caldera Springs on which no OLUs have yet been constructed. The OLUs are anticipated to match the Caldera Cabin model used in Caldera Springs, with each cabin including a range of between three and five lodging units per cabin. The annexation property is also anticipated to include two separate resort cores, each with additional resort amenities available for owners and guests. 247 -15 -000464 -CU - Caldera Springs 26 Additional pool, food and beverage, and other resort amenities will be included as the project progresses. B. Developed recreational facilities designed to provide for the needs of visitors and residents of the resort; 1. Golf courses and clubhouses; 2. Indoor and outdoor swimming pools; 3. Indoor and outdoor tennis courts; 4. Physical fitness facilities; 5. Equestrian facilities; 6. Wildlife observation shelters; 7. Walkways, bike paths, jogging paths, equestrian trails; 8. Other similar recreational facilities consistent with the purposes of DCC 18.113 and Goal 8. FINDING: Similar to the existing Resort, the applicant states that recreational amenities will be subject to refinement throughout the life of the Resort based on market demand, and the needs and desires of residents and guests. Likely additional recreational amenities for the annexation property will include multi-purpose pedestrian and bicycle path network; various man-made lakes and meandering stream water features; pool facility; and additional resort core areas. Staff notes that the existing Resort includes a nine -hole short golf course, pool and fitness center, tennis and pickle ball courts, and kids playground. C. Residential accommodations: 1. Single family dwellings; 2. Duplexes, triplexes, fourplexes and multi family dwellings; 3. Condominiums; 4. Townhouses; 5. Living quarters for employees; 6. Time share projects. FINDING: According to the burden of proof, the annexation property will include a range of between 325 and 395 residential units and may include a mix of the types of accommodations listed above. The specific housing product type will largely depend on market demand as the project matures. The applicant states that at all times, the Resort will demonstrate compliance with the 2.5:1 required residential and overnight lodging ratio. The proposed residential accommodations will conform to this criterion. D. Commercial services and specialty shops designed to provide for the visitors to the resort: 1. Specialty shops, including but not limited to delis, clothing stores, bookstores, gift shops and specialty food shops; 2. Barber shops/beauty salons; 3. Automobile service stations limited to fuel sales, incidental parts sales and minor repairs; 4. Craft and art studios and galleries; 5. Real estate offices; 6. Convenience stores; 7. Other similar commercial services which provide for the needs of resort visitors and are consistent with the purposes of DCC 18.113 and Goal 8. 247 -15 -000464 -CU - Caldera Springs 27 FINDING: The existing resort core in Caldera Springs features a clubhouse that includes food and beverage retail areas, as well as recreational spaces, including a fitness center, locker rooms, indoor and outdoor pools, and child -oriented game areas reminiscent of a "family room." The additional resort core areas are anticipated to include complimentary uses to meet guest and owner demands as the resort develops. Complimentary uses can include food, beverage, and pool facilities, pedestrian and bike paths, and man-made lakes and meandering streams. E. Uses permitted in open space areas generally include only those uses that, except as specified herein, do not alter the existing or natural landscape of the proposed open space areas. No improvements, development or other alteration of the natural or existing landscape shall be allowed in open space areas, except as necessary for development of golf course fairways and greens, hiking and bike trails, lakes and ponds and primitive picnic facilities including park benches and picnic tables. Where farming activities would be consistent with identified preexisting open space uses, irrigation equipment and associated pumping facilities shall be allowed. FINDING: Staff found that the annexation property will include approximately 256 acres of dedicated open space throughout the project. The open space areas will largely be devoted to passive uses, including bicycle and hiking trails, along with small picnic and park areas. Lakes and ponds are planned for open space areas, although the precise locations, size and design have not been finalized at this time. In addition to dedicated open space, the annexation property includes a 125 -acre Wildlife Mitigation Tract which is in addition to the dedicated open space. The Wildlife Mitigation Tract is described below in more detail. The Wildlife Mitigation Tract and the dedicated open space areas will be subject to two separate management plans. In general terms, the Wildlife Mitigation Tract is intended as a set aside and will not include any resort -related improvements. This criterion is met. F. Facilities necessary for public safety and utility service within the destination resort. FINDING: The applicant does not propose any new public safety facilities. Police protection will be provided by the Deschutes County Sheriffs Department. Emergency medical service will be provided from St. Charles in Bend and the medical clinic at Sunriver. The applicant's Exhibit S is Board Order No. 2014-042, accepting the subject property into the La Pine Rural Fire Protection District (LPRFPD). LPRFPD commented as follows: "The property now has fire protection from La Pine Rural Fire Protection District and additional summer forestry patrol from the Oregon Department of Forestry. The developer to date has shown adequate planning for access (roads), water supply (fire hydrants), suitable firewise building and fire resistive landscaping and other issues pertaining new developments and the fire codes as well as an excellent performance history with the existing property development. The district thus supports this new development and has no issues with the conditional use permit and the requested modification to the developments master plan per single family and overnight ratios from 2:1 to 2.5:1." 247 -15 -000464 -CU - Caldera Springs 28 No new utility facilities are included in the application materials. The applicant's Exhibit K includes intent to serve letters from Cascade Natural Gas for natural gas; Midstate Electric Cooperative, Inc. for electricity; Bend Broadband for telephone and cable services; CenturyLink for telephone service; and Wilderness Garbage & Recycling for solid waste service. The applicant indicates that the existing Sunriver Water LLC domestic water distribution system will be extended to serve the annexation property. Exhibit G is a copy of a Water Service Agreement. The applicant also indicates that the Sunriver Wastewater Treatment Plant has the capacity to adequately serve the annexation property. Exhibit H is a copy of a Sewer Service Agreement. These uses are allowed under this section. Staff recommends, and the Hearings Officer agrees, that a condition of approval requiring the applicant to provide signed agreements for water and sewer service prior to Final Master Plan approval is warranted. G. Other similar uses permitted in the underlying zone consistent with the purposes of DCC 18.113.030. FINDING: At the present time, the applicant does not propose any additional uses on the annexation property or Caldera Springs in general. The applicant indicates that amenities will be subject to refinement throughout the life of the resort, market demand, and the needs and desires of residents and guests, and will be subject to further county review. H. Accessory Uses in Destination Resorts: 1. The following accessory uses shall be permitted provided they are ancillary to the destination resort and consistent with the purposes of DCC 18.113 and Goal 8: a. Transportation related facilities excluding airports; b. Emergency medical facilities; c. Storage structures and areas; d. Kennels as a service for resort visitors only; e. Recycling and garbage collection facilities; f. Other similar accessory uses consistent with the purposes of DCC 18.113 and Goal 8. FINDING: The applicant does not propose to include any of the accessory uses listed in DCC 18.113.030(H). The applicant indicates that amenities will be subject to refinement throughout the life of the resort, market demand, and the needs and desires of residents and guests. Any additional accessory uses will be subject to further county review. 3. Section 18.113.050. Requirements for conditional use permit and conceptual master plan applications. The CMP provides the framework for development of the destination resort and is intended to ensure that the destination resort meets the requirements of DCC 18.113. The CMP application shall include the following information: A. Illustrations and graphics to scale, identifying: 1. The location and total number of acres to be developed as a planned destination resort; 247 -15 -000464 -CU - Caldera Springs 29 FINDING: The applicant's Exhibits A, A-1 and B depict the location and acreage of the property. 2. The subject area and all land uses adjacent to the subject area; FINDING: The applicant's Exhibit B illustrates the subject area and adjacent land uses. 3. The topographic character of the site; FINDING: The application materials do not include a topographic map. However, the applicant's Stormwater Disposal and Erosion Control Master Plan, submitted as Exhibit L, states that the property is generally flat, with natural ground slopes ranging from zero to six percent, with limited areas up to 12 percent. COLW argues that this section is not met because no topographic map has been included in the materials. The Hearings Officer finds that this section does not expressly call for a map. A description of the property or other maps and information describing the "topographic character" are sufficient to satisfy this section. Those materials exist in the record. 4. Types and general location of proposed development uses, including residential and commercial uses; FINDING: The applicant's Exhibits A and A-1 depict the general location of residential and resort core uses, and the Wildlife Mitigation Tract. The applicant's November 10, 2015 submission contains similar information. 5. Major geographic features; FINDING: No major geographic features exist on-site. 6. Proposed methods of access to the development, identifying the main vehicular circulation system within the resort and an indication of whether streets will be public or private; FINDING: The applicant's Exhibits A and A-1 show the general location of internal streets and the three proposed access points. The burden of proof indicates that all internal streets will be privately owned and maintained by the homeowner's association. 7. Major pedestrian, equestrian and bicycle trail systems; FINDING: The applicant's Exhibit R, Vehicular and Pedestrian Access Plan and Roadway Standards, describes a ten -foot -wide multi -use path network, similar to that used within the existing Resort. No map or illustration of the multi -use path network within the annexation property was included in the application materials. COLW argues that no map with the multi -use path network is in the record. The applicant counters that the CMP contains all of this information. The Hearings Officer finds that the CMP is sufficient to determine the major pedestrian and bicycle trail systems. The applicant submitted additional information in Exhibit 8 of their December 22, 2015 submission that shows the location of trails. 247 -15 -000464 -CU - Caldera Springs 30 8. Important natural features of the site, including habitat of threatened or endangered species, streams, rivers, wetlands and riparian vegetation within 200 feet of streams, rivers and wetlands. FINDING: As noted above, the expansion property is generally flat with no significant topographic features on-site. Additionally, the subject property contains no habitat of threatened or endangered species, and no natural streams, rivers, wetlands, or riparian vegetation. 9. All uses proposed within landscape management corridors identified by the comprehensive plan or zoning ordinance. FINDING: The subject property is covered by the LM Combining Zones associated with South Century Drive, Vandevert Road and Highway 97. Based on staffs review of the county's Geographic Information System ("GIS") map, uses within the above -referenced LM corridors will include residences, roadways, open space and the Wildlife Mitigation Tract. The Hearings Officer finds that staff's review is sufficient to satisfy this criterion. 10. The location and number of acres reserved as open space, buffer area, or common area. Areas designated as "open space," "buffer area," or "common area" should be clearly illustrated and labeled as such; FINDING: The applicant's Exhibits A and A-1 depict the general locations of residential uses, resort amenities, visitor -oriented accommodations, and the Wildlife Mitigation Tract. Staff concluded that all other areas are dedicated open space. COLW argues that no map of open space, buffer areas and common areas exists in the record. The applicant counters that the CMP provides all the required information. The Hearings Officer finds that this criterion does not require a single map to illustrate each area. The CMP is sufficient. In addition, the applicant's November 10, 2015 submission contains multiple maps and information to clarify the location of the areas covered by this section. This criterion is met. 11. All proposed recreational amenities; FINDING: The applicant's Exhibits A and A-1 illustrates the general location of proposed resort amenities. 12. Proposed overall density. FINDING: The applicant's Land Use Summary at the top of Exhibits A and A-1 detail the proposed density of residential lots and visitor -oriented accommodations. This same summary is presented in tabular form in the burden of proof. B. Further information as follows: 1. A description of the natural characteristics of the site and surrounding areas, including a description of resources and 247 -15 -000464 -CU - Caldera Springs 31 the effect of the destination resort on the resources; methods employed to mitigate adverse impacts on resources; analysis of how the overall values of the natural features of the site will be preserved, enhanced or utilized in the design concept for the destination resort; and a proposed resource protection plan to ensure that important natural features will be protected and maintained. Factors to be addressed include: a. Compatibility of soil composition for proposed development(s) and potential erosion hazard; FINDING: The applicant's Stormwater Disposal and Erosion Control Master Plan, submitted as Exhibit L, details the applicant's plan to manage erosion and stormwater. The applicant's burden of proof states that the soils on-site include loose sands and silt at the surface and highly compressible diatomaceous silt at depth. The staff accepted this information and there is no contrary evidence to conclude that the soil conditions on the property are incompatible with the proposed uses. This criterion is met. b. Geology, including areas of potential instability; FINDING: The burden of proof does not identify any areas of potential instability. c. Slope and general topography; FINDING: As noted previously, the annexation property is generally flat with slopes ranging from zero to six percent, with limited areas of up to 12 percent. d. Areas subject to flooding; FINDING: The burden of proof states that the groundwater table fluctuates on the annexation property. Shallow groundwater may be encountered due to deep excavation associated with sewer trenching and lake construction/lining. The applicant states that it will minimize construction impacts from shallow groundwater by dewatering; summer and fall construction to coincide with the naturally lowered groundwater table; and potential use of trenchless technologies to avoid open trench construction. Staff found that the subject property is not within a mapped flood plain or wetland. No natural streams, rivers or other waterways exist on-site. This criterion is met. e. Other hazards or development constraints; FINDING: The burden of proof does not identify any other hazards or development constraints. The record does not contain any relevant contrary evidence. f. Vegetation; FINDING: The burden of proof states that much of the subject acreage was logged in the 1940s. Consequently, tree coverage is now predominantly lodgepole and ponderosa pine. Logging debris and slash are evident throughout the site. The annexation property is scarred by a number of logging roads, recreational vehicle trails and a large transmission line corridor. Small diameter lodgepole pine thickets are evident 247 -15 -000464 -CU - Caldera Springs 32 throughout. Open meadows of golden fescues and native grasses are interspersed throughout the annexation property. Some bitterbrush and native shrubs are also present. The Wildlife Habitat Evaluation submitted as Exhibit C describes the property in greater detail. g. Water areas, including streams, lakes, ponds and wetlands; FINDING: No natural water areas exist on-site. The applicant notes that there are high water table areas that can be subject to ponding during rainy periods. h. Important natural features; FINDING: The predominant natural feature on-site is the ponderosa and lodgepole pine forest. No other significant natural features exist on-site. 1 Landscape management corridors; FINDING: Applicable LM corridors are addressed in the burden of proof and in this decision above. j. Wildlife. FINDING: The applicant's Exhibits C and C-1 detail wildlife and habitat on-site. 2. A traffic study which addresses (1) impacts on affected County, city and state road systems and (2) transportation improvements necessary to mitigate any such impacts. The study shall be submitted to the affected road authority (either the County Department of Public Works or the Oregon Department of Transportation, or both) at the same time as the conceptual master plan and shall be prepared by a licensed traffic engineer to the minimum standards of the road authorities. FINDING: The applicant's TIA was submitted as Exhibit D. In addition, a revised TIA was submitted on October 19, 2015. At the public hearings and in written submissions participants raised concerns about the initial TIA. One concern was that the vehicle counts used had not been appropriately seasonally adjusted. The applicant submitted a refined analysis dated November 17, 2015 which confirms that all of the surrounding roads will have sufficient capacity to meet the County's level of service standards if the proposal is approved. This information is supported by a November 20, 2015 memo from Senior Transportation Planner, Peter Russell. A second concern was with the potential closure of Vandevert Road at Hwy 97. Again, Peter Russell addressed these concerns in a December 17, 2015 memo. His memo relies in part on ODOT's statement of when and how Vandevert Road/Hwy 97 intersection might be changed in the future dated November 20, 2015. The memo explains why it is appropriate for the TIA to assume that the intersection will remain open for the purposes of considering the impact of the resort. The primary reason is that 247 -15 -000464 -CU - Caldera Springs 33 ODOT is responsible to that intersection and must step through a process prior to any changes. That will trigger public hearings before the BOCC. Until that time, it is appropriate to rely on the Vandevert Road/Hwy 97 intersection as it is. The Hearings Officer finds the TIA and the applicant's information sufficient to satisfy this criterion. There is no credible contrary evidence in the record. 3. A description of how the proposed destination resort will satisfy the standards and criteria of DCC 18.113.060 and 18.113.070; FINDING: The applicant' burden of proof specifically addresses DCC 18.113.060 and 18.113.070. 4. Design guidelines and development standards defining visual and aesthetic parameters for: a. Building character; b. Landscape character; c. Preservation of existing topography and vegetation; d. Siting of buildings; and e. Proposed standards for minimum lot area, width, frontage, lot coverage, setbacks and building heights. FINDING: The applicant's Design Guidelines and Development Standards are submitted as Exhibit E-2. The Open Space Management Plan submitted as Exhibit F details the proposed uses, management and preservation of open space areas. The applicant proposes the same Dimensional Standards that were approved with the existing Resort. The specific Dimensional Standards are detailed below. 5. An open space management plan which includes: a. An explanation of how the open space management plan meets the minimum standards of DCC 18.113 for each phase of the development; b. An inventory of the important natural features identified in the open space areas and any other open space and natural values present in the open space; c. A set of management prescriptions that will operate to maintain and conserve in perpetuity any identified important natural features and other natural or open space values present in the open space; d. Deed restrictions that will assure that the open space areas are maintained as open space in perpetuity. FINDING: The applicant's Exhibit F is the proposed Open Space Management Plan. It defines open space and typical uses for designated open space. Some open space areas are evident on the conceptual master plan, but the applicant has proposed that most detailed descriptions of open space will be provided at the time of actual development. The open space plan also describes management practices for the various types and uses of open space. A number of management prescriptions are listed to preserve and enhance open space into perpetuity. As the resort matures, open space will be managed by the homeowner's association. The submitted Open Space 247 -15 -000464 -CU - Caldera Springs 34 Management Plan describes the types and uses of improvements allowed in open spaces, pursuant to Chapter 18.113. The CCRs stipulate the preservation of common areas in perpetuity. The applicant states that open space alternatives have been identified in conceptual master plan alternatives, with final open space use and location to be defined in subsequent land use actions. The applicant states that open space use and location will conform to the requirements and definition of stipulated open space. This criterion is met. 6. An explanation of public use of facilities and amenities on the site. FINDING: The annexation property will utilize the existing amenities at Caldera Springs and, as described above, will include additional resort core areas which will be available for owners and guests. A paved trail system will also be integrated with the existing pathway system at Caldera Springs. 7. A description of the proposed method of providing all utility systems, including the location and sizing of the utility systems; FINDING: The revised staff report provides additional findings that support the Hearings Officer's conclusions below. Domestic Water The applicant proposes to provide domestic water via extension of Sunriver Water LLC ("SWLLC"), from Caldera Springs. Exhibit I is the water supply plan for the annexation property. The applicant states that this plan demonstrates that the existing SWLLC water supply system has adequate capacity to meet the needs of the annexation property. Existing storage facilities are available to serve all residents of the applicant's existing and proposed projects, and to assure fire protection. No additional capacity improvements are required to serve the project. The applicant indicates that it will be solely responsible for the costs associated with extending water service to the annexation property and for the installation of on-site water supply infrastructure. The burden of proof states that SWLLC has water rights to accommodate the residential development, irrigation, and fire protection for the annexation property. Prior to final plat approval, the applicant states that SWLLC will obtain approval to expand its service territory through a request to the Oregon Public Utility Commission. SROA raised concerns about the impact of the expanded resort on the existing water system that serves Sunriver and Caldera Springs. In SROA's December 15, 2105 submittal, they detail some reasons for their concern that the existing system is not robust enough to serve the expanded resort. Part of this information comes from a 2014 Public Utility Commission docet. That information does not explicitly state that the water system is not large enough to supply the needed domestic water for the expansion. SROA also submitted analysis by Fodor & Associates questioning the capacity of the existing system and the applicant's reliance on it. 247 -15 -000464 -CU - Caldera Springs 35 The applicant provided responsive evidence in their November 10, 2015 submission which contains November 10, 2015 analysis by Parametrix. The applicant gives a frank assessment of the current system and notes that several improvements to the water system are already needed for pumps and storage. The applicant's evidence shows that sufficient water and rights exist to serve expanded resort, but the system will need upgrades. The Hearings Officer finds that the evidence in the record is sufficient to show compliance with this criterion as it applies to domestic water (including water for fire protection). Although there is competing expert testimony, none of the evidence demands a conclusion that water cannot be made available for the applicant's proposal. SROA's concern is understandable. However, the supposition that this criterion requires a demonstration that a water system must currently have adequate capacity is incorrect. The criterion only requires proof of a method and sizing. That has been done here — with the concession that the applicant will be responsible for the cost of some of the upgrades to the system. Importantly, and as SROA correctly notes, any request for a system expansion must be undertaken through a public PUC process which will give current SROA members a chance to participate and comment on the cost to ratepayers. Wastewater Treatment Facilities The applicant's Exhibit J is a wastewater treatment review, which summarizes the results of the flow and Toad projections, and wastewater treatment capacity evaluation of the annexation proposal. The review indicates that the existing wastewater treatment plant has capacity to serve Sunriver's existing connections plus the addition of the annexation property. SROA made comments on the existing sewer system very similar to those they made about domestic water. The applicant responded in the same submissions and memos noted above. Again, there is a disagreement about existing capacity. However, the applicant has provided sufficient evidence that the existing sewer system has sufficient capacity. The applicant concedes that future upgrades will be needed. However, again the expanded resort will be required to pay a proportionate share of those costs when the improvements are made. This evidence is sufficient to satisfy the criterion. Electricity The applicant's Exhibit K includes a "will -serve" letter from MidState Electric. Natural Gas The applicant's Exhibit K includes a "will -serve" letter from Cascade Natural Gas. Telephone The applicant's Exhibit K includes a "will -serve" letter from Century Link. 8. A description of the proposed order and schedule for phasing, if any, of all development including an explanation of when facilities will be provided and how they will be 247 -15 -000464 -CU - Caldera Springs 36 secured if not completed prior to closure of sale of individual Tots or units; FINDING: The applicant states that development of the annexation property will be constructed in phases to comply with market demand. Typical phase boundaries are denoted on the conceptual master plan and submitted as Exhibits A and A-1. The applicant has noted, however, that the phased boundaries and sequence are subject to change with market demand. The applicant's December 29, 2015 states that the CMP depicts the phased development of the resort. See findings for DCC 18.113.060(E). 9. An explanation of how the destination resort has been sited or designed to avoid or minimize adverse effects or conflicts on adjacent lands. The application shall identify the surrounding uses and potential conflicts between the destination resort and adjacent uses within 660 feet of the boundaries of the parcel or parcels upon which the resort is to be developed. The application shall explain how any proposed buffer area will avoid or minimize adverse effects or conflicts; FINDING: Staff found that land to the north of the annexation property within 660 feet is comprised of the Sunriver Business Park, the Burlington Northern main line and vacant forest property owned by the USFS. The Burlington Northern main line provides a significant barrier between the annexation property and the USFS lands. The back of Business Park improvements, including storage and parking, abut the subject property to the north. The existing Midstate Electric Cooperative substation is also sited at the north property line. The applicant indicates that berms and/or setbacks will screen and buffer the annexation property from the electrical substation and the back door operations of the Sunriver Business Park. Staff concluded that given the narrow width in this area, very little development is anticipated. It is anticipated that less than 15 to 20 homes will be within 660 feet of the business park. Property to the west of the subject property is comprised of the existing Caldera Springs resort. The annexation property will be fully integrated with Caldera Springs. For this reason, Staff concluded that there is no need to create any additional buffers between the phases. As depicted on the site plan, significant buffers and dedicated open spaces will be maintained between the two phases of Caldera Springs. The Crosswater development and Vandevert Ranch are located west of the annexation property, across South Century Drive. A significant berm was constructed to buffer Crosswater from the noise and visual impacts of South Century Drive. The existing berm will also buffer Crosswater from the annexation proposal. A similar berm was constructed by the applicant on the easterly side of South Century Drive in connection with the initial development of Caldera Springs. In addition, the southwest corner of the property includes a small strip of undevelopable land along South Century Drive. The combination of berms and the existing South Century Drive establishes an effective buffer between the annexation property, and the Crosswater development and Vandevert Ranch. 247 -15 -000464 -CU - Caldera Springs 37 South of Vandevert Road there is a combination of undeveloped forest land and a rural subdivision platted as Vandevert Acres. The existing residential development is more than 660 feet from the property line. The annexation property will include a setback of approximately 150 feet from Vandevert Road. This setback will provide significant buffering from any future development south of Vandevert Road. In addition, the setback will provide an east -west migration corridor for mule deer and other wildlife species. Property to the east of the annexation property includes the Burlington Northern main line and Highway 97. The 125 -acre Wildlife Mitigation Tract will provide a significant buffer between the annexation property and these adjacent uses. The Hearings Officer agrees with Staff's conclusions that the proposed design of the resort will minimize adverse impacts on surrounding lands. 10. A description of the proposed method for providing emergency medical facilities and services and public safety facilities and services including fire and police protection; FINDING: Police protection will be provided by the Deschutes County Sheriffs Department. Fire protection will be provided by La Pine Rural Fire Protection District. Emergency medical service will be provided from St. Charles in Bend and the medical clinic at Sunriver. The applicant states that Sunriver medical and public safety services may be the first responder in an emergency, given the close proximity of the subject property to the Sunriver Resort, and the first responder agreements that are in place between the various medical and public safety providers in the county. 11. A study prepared by a hydrologist, engineering geologist or similar professional certified in the State of Oregon describing: a. An estimate of water demands for the destination resort at maximum buildout, including a breakdown of estimated demand by category of consumption, including but not limited to residential, commercial, golf courses and irrigated common areas; b. Availability of water for estimated demands at the destination resort, including (1) identification of the proposed source; (2) identification of all available information on ground and surface waters relevant to the determination of adequacy of water supply for the destination resort; (3) identification of the area that may be measurably impacted by the water used by the destination resort (water impact area) and an analysis supporting the delineation of the impact area; and (4) a statistically valid sampling of domestic and other wells within the impact area; c. A water conservation plan including an analysis of available measures which are commonly used to reduce water consumption. This shall include a justification of the chosen water conservation plan. The water conservation plan shall include a wastewater disposal plan utilizing beneficial use of reclaimed water to the maximum extent practicable. 247 -15 -000464 -CU - Caldera Springs 38 For the purposes of DCC 18.113.050, beneficial uses shall include, but are not limited to: i. Irrigation of golf courses and greenways; ii. Establishment of artificial wetlands for wildlife habitation. FINDING: The applicant retained Parametrix to prepare a water supply system master plan, evaluate and report on the availability of water, estimate demands of the resort, develop a water conservation plan and evaluate any water impact area. Parametrix concludes that at final project build -out, the water system for the resort will serve approximately 414 equivalent dwelling units, 25 acres of parks, meadow and landscaping, nine acres of water features and approximately 34 acres of irrigation water. Total domestic water consumption is estimated at 278 gallons per minute ("gpm"), while irrigation water is anticipated at 191 gpm. As noted above, the findings above conclude the existing Sunriver Water LLC water supply is adequate to serve the annexation property together with the remainder of SRWLLC's service area. The applicant indicates that water mains will be extended to and through the annexation property to provide an efficient looped network with ample capacity and reliability. In addition, the applicant provided an analysis by Parametrix, in a December 21, 2015 memo, showing that Sunriver Water LLC has sufficient water rights to serve the project without new water rights being obtained. These criteria are met. 12. An erosion control plan for all disturbed land, as required by ORS 468. This plan shall include storm and melt water erosion control to be implemented during all phases of construction and permanent facilities or practices for the continuing treatment of these waters. This plan shall also explain how the water shall be used for beneficial use or why it cannot be used as such; FINDING: The applicant's Exhibit L is an erosion control plan that addresses soil conditions, natural topography, and anticipated stormwater runoff. The plan concludes that the relatively permeable surface soils will facilitate surface infiltration of stormwater. The plan states that erosion control plans and measures will give consideration as required to ORS 468. Further, it states that plans will be prepared and reviewed during all phases of construction, including practices for continual treatment of stormwater. COLW argued that the applicant had not explained how stormwater might be used for beneficial use. In their December 29, 2105 submission the applicant provided additional explanation of the stormwater system and how proposed swales will be used to allow natural infiltration of stormwater back into the water table. The CMP shows these systems. The Hearings Officer finds that directing stormwater to natural and constructed swales for the purpose of treating and disposing of stormwater is sufficient to show a beneficial use for the purposes of this criterion. 13. A description of proposed sewage disposal methods; 247 -15 -000464 -CU - Caldera Springs 39 FINDING: The applicant's Exhibit I, Sewage Collection and Water Systems Master Plan, describes the proposed sewer extension to serve the annexation property. The findings regarding the sewer system discussed above are included here by reference. 14. Wildfire prevention, control and evacuation plans; FINDING: Exhibit M is the applicant's Wildfire Management Plan. 15. A description of interim development including temporary structures related to sales and development; FINDING: No temporary structures are proposed. 16. Plans for owners' associations and related transition of responsibilities and transfer of property; FINDING: The Caldera Springs Owners Association has been in existence since 2006. The applicant states that the annexation property will be annexed fully into the Covenants, Conditions and Restrictions for Caldera Springs. Exhibits E and E-1 are copies of the current Declaration of Covenants, Conditions and Restrictions. 17. A description of the methods of ensuring that all facilities and common areas within each phase will be established and will be maintained in perpetuity; FINDING: A plan to ensure the transfer and maintenance of common areas is set forth in the CCRs submitted as Exhibit E and E-1, and the Open Space Management Plan submitted as Exhibit F. The applicant states that with the recording of each plat, a supplemental declaration will be recorded annexing the property contained in each plat and designating certain areas as residential lots, living units, common areas and other land use designations as provided in the Declaration. In the Declaration and each supplemental declaration, all streets will be designated "common area" as defined in the Declaration. Additional designated "common areas" may include open space lots and trails. This criterion is met. 18. A survey of housing availability for employees based upon income level and commuting distance; FINDING: The anticipated employee needs and a survey of housing availability for employees were submitted as a part of the Economic Impact and Feasibility Analysis (Exhibit 0). The analysis indicates that both rental and for -sale housing will be available for employees given the current housing inventory. The analysis goes on to state that these rental and for -sale units represent a wide range of price points. The analysis concludes that the local area currently contains small to Targe surpluses of rental and for - sale units in line with the estimated budgets of these new households. 19. An economic impact and feasibility analysis of the proposed development prepared by a qualified professional economist(s) or financial analyst(s) shall be provided which includes: 247 -15 -000464 -CU - Caldera Springs 40 a. An analysis which addresses the economic viability of the proposed development; b. Fiscal impacts of the project including changes in employment, increased tax revenue, demands for new or increased levels of public services, housing for employees and the effects of loss of resource lands during the life of the project. FINDING: The applicant's Exhibit 0 is an economic impact and feasibility analysis prepared by Peterson Economics. The analysis addresses the economic viability of the development, along with anticipated fiscal impacts. 20. A solid waste management plan; FINDING: Exhibit K includes a "will -serve" email from Wilderness Garbage and Recycling. 21. A description of the mechanism to be used to ensure that the destination resort provides an adequate supply of overnight lodging units to maintain compliance with the 150 -unit minimum and 2 and one-half to 1 ratio set forth in DCC 18.113.060(D)(2). The mechanism shall meet the requirements of DCC 18.113.060(L); FINDING: As is the case with Caldera Springs, all overnight lodging units associated with the annexation property will be subject to the Caldera Cabins CCRs. The burden of proof states that these CCRs impose the obligation to maintain the units as qualified overnight lodging units. In addition, ongoing conditions of approval and county code requirements regarding reporting will apply to the annexation property and, in particular, the lots designated for overnight lodging. 22. If the proposed destination resort is in a SMIA combining zone, DCC 18.56 shall be addressed; FINDING: The subject property is not located within a SMIA Combining Zone. 23. If the proposed destination resort is in an LM combining zone, DCC 18.84 shall be addressed; FINDING: The burden of proof addresses DCC 18.84. 24. A survey of historic and cultural resources inventoried on an acknowledged Goal 5 inventory; FINDING: County Comprehensive Plan Chapter 23.40.060 includes the County's "Goal 5 Inventory" of Historic Resources that are protected by the County's Historic Preservation Code. No site, building, or structure on this land is included in the list. The State requires local jurisdictions to preserve and protect all structures and sites listed on the National Register of Historic Places within their jurisdictions. There are no National Register -listed structures on this land. 247 -15 -000464 -CU - Caldera Springs 41 25. Other information as may reasonably be required by the Planning Director to address the effect of the proposed development as related to the requirements of DCC Title 18. FINDING: In response to requests by staff and the public, the applicant submitted additional information as described throughout this decision. 4. Section 18.113.060. Standards for Destination Resorts. The following standards shall govern consideration of destination resorts: A. The destination resort shall, in the first phase, provide for and include as part of the CMP the following minimum requirements: 1. At least 150 separate rentable units for visitor oriented overnight lodging as follows: a. The first 50 overnight lodging units must be constructed prior to the closure of sales, rental or lease of any residential dwellings or lots. b. The resort may elect to phase in the remaining 100 overnight lodging units as follows: i. At least 50 of the remaining 100 required overnight lodging units shall be constructed or guaranteed through surety bonding or equivalent financial assurance within 5 years of the closure of sale of individual lots or units, and; ii. The remaining 50 required overnight lodging units shall be constructed or guaranteed through surety bonding or equivalent financial assurance within 10 years of the closure of sale of individual lots or units. iii. If the developer of a resort guarantees a portion of the overnight lodging units required under subsection 18.113.060(A)(1)(b) through surety bonding or other equivalent financial assurance, the overnight lodging units must be constructed within 4 years of the date of execution of the surety bond or other equivalent financial assurance. iv. The 2:1 accommodation ratio* required by DCC 18.113.060(D)(2) must be maintained at all times. c. If a resort does not chose to phase the overnight lodging units as described in 18.113.060(A)(1)(b), then the required 150 units of overnight lodging must be constructed prior to the closure of sales, rental or lease of any residential dwellings or lots. a This reference to a 2:1 ratio is a clerical error. Pursuant to Ordinance 2013-008, the county amended the ratio of residential units to OLUs from 2:1 to 2.5:1, consistent with legislative changes made to ORS 197.445(4)(b)(E) and OAR 660-015-000(8). The Planning Division's Work Plan includes correcting this error to reference a 2.5:1 ratio as part of its housekeeping amendments. 247 -15 -000464 -CU - Caldera Springs 42 FINDING: As noted above, the applicant has elected to measure compliance with the county's destination resort standards by considering the annexation property together with the existing Caldera Springs Destination Resort. As of the submittal date of the subject application, the applicant states it has constructed a total of 152 OLUs. The applicant anticipates construction of all 160 overnight lodging units required by the original Caldera Springs CMP within the next calendar year. As a part of the current request, the applicant is modifying the 2:1 ratio approved in the original CMP to reflect the current county standard of 2.5:1. As a consequence, with 160 overnight lodging units either constructed or financially assured, and the ratio modified to 2.5:1, in addition to the 320 single-family lots permitted in Caldera Springs, the applicant is entitled to 80 additional residential units prior to the need to develop any further OLUs. Upon completion of the 80 additional residences, the applicant will be required to provide additional OLUs. At this point in time, the applicant has not determined whether OLUs will be constructed prior to the sale of additional residential lots, whether additional OLUs will be bonded, or whether a combination of the two may be appropriate. The applicant indicates the required ratio will be maintained at all times. As discussed above, a portion of the OLUs necessary to support full build out of residential units on the annexation property will likely occur on existing overnight lodging -designated lots in Caldera Springs that are currently undeveloped. COLW strongly disputes that the current method that Caldera Springs uses to make the "rentable units" available is compliant with DCC 18.113.060. They argue that in reality the existing stock of rentable units is really just 38 luxury homes. COLW acknowledges that if each bedroom of those 38 homes is viewed as a "unit" then perhaps minimum compliance could be had. They dispute that Caldera Springs actually rents these homes by the unit. Indeed, COLW attaches the 2014 Caldera Springs rental record which proves the point that at least in that year each of the "cabins" was rented in total, and there was not even one instance in which a single bedroom was rented separately from the rest of the home. COLW argues that at best these rooms should be categorized as "dormitory rooms" which do not qualify as overnight rentable units under either ORS 197.435(5)(b) or DCC 18.113.060. The applicant provided a refined description of how Caldera Springs views the same 38 "cabins." There is no dispute that the units are contained within what otherwise appears to be a single family residence. The distinction is that each bedroom has a separate entrance and a separate bathroom. The applicant states that each of the rooms is separately rentable based on the reservation system. Again, the 2014 rental report shows the homes broken down by bedroom — even if all bedrooms in each home that year were always rented together by one guest. This circumstance is preferred by most guests, the applicant argues. For the purposes of this decision, the Hearings Officer concludes that the applicant's system for making "rentable units" available for overnight accommodation complies with DCC 18.113.060 and the definitions in 18.04.030. There is no evidence which would cause the Hearings Officer to doubt the veracity of the applicant's statements (see also the letter from Caldera Springs at Exhibit 5 of the applicant's December 22, 2015 letter) or the information about the Caldera Springs website as presented by COLW. Caldera Springs has interpreted the state definition of "[o]vernight lodging" in a way that turns a large single family residence into a "cabin", and a five bedroom five bath house into five "rentable units." With the addition of the separate entrance for each bedroom and at least the colorable claim to allowing each room to be rented individually, Caldera Springs 247 -15 -000464 -CU - Caldera Springs 43 appears to have finessed DCC 18.113.060 in a way that minimally satisfies the 150 separate rentable unit standard. Although COLW clearly condemns the method that Caldera Springs uses for renting out the homes, there is no evidence that the Hearings Officer has been pointed to in the record that shows that the 38 houses at issue are really simply used as full or part time residences — which is the heart of the standards set in the destination resort statute. And, while additional evidence (such as a deliberate system of actively discouraging the separate rental of individual bedrooms, or a pricing scheme that accomplished the same result) may have swayed the Hearings Officer to find noncompliance, that evidence does not appear to be in the record. I did not visit the website to search for such evidence since it is outside the record. There also is little help in the legislative findings for ORS 197.435 which might require a conclusion that Caldera Springs's current rental system is forbidden. Consequently, the Hearings Officer finds that the application meets this criterion. For all the same reasons stated above, I also find that Caldera Springs's rental system does not transform the rooms or homes into a "dormitory." 2. Visitor oriented eating establishments for at least 100 persons and meeting rooms which provide seating for at least 100 persons. FINDING: In connection with the initial development of Caldera Springs, the applicant constructed the Lakehouse and Zeppa Bistro which, together, provide visitor eating establishments and meeting rooms for at least 100 persons. In addition, the applicant anticipates additional resort core recreation and visitor oriented facilities in connection with later phases of development on the annexation property. This criterion is met. 3. The aggregate cost of developing the overnight lodging facilities, developed recreational facilities, and the eating establishments and meeting rooms shall be at least $7,000,000 (in 1993 dollars). FINDING: The record indicates that the aggregate amount of $7,000,000 equates to $11,560,318.34 in 2015 dollars using a standard Consumer Price Index (CPI) calculator. In connection with the development of Caldera Springs, the applicant spent $50,000,000 in connection with the cost of developing the overnight lodging facilities, developed recreational facilities, and the eating establishments and meeting rooms. In connection with later phases of development, the applicant will construct additional overnight lodging facilities, developed recreational facilities and other resort amenities. The costs associated with future development, in conjunction with the capital improvements already made exceed the $11,560,318.34 required by this standard. This criterion is met. 4. At least $ 2,333,333 of the $7,000,000 (in 1993 dollars) total minimum investment required by DCC 18.113.060(A)(3) shall be spent on developed recreational facilities. FINDING: In 2015 dollars, the aggregate amount of $2,333,333 equates to $3,853,438.90, using a standard CPI calculator. Staff found that to date, the applicant 247 -15 -000464 -CU - Caldera Springs 44 has spent over $11,000,000 in connection with the cost of developing recreational facilities. As mentioned elsewhere, in connection with later phases of development, the applicant will construct additional developed recreational facilities and other resort amenities. Staff concluded that the costs associated with future development, in conjunction with the capital improvements already made far exceed the $3,853,438.90 required by this standard. COLW argues that the record is not specific and certain enough about the types of recreational facilities to be built to satisfy this standard. COLW's argument does not acknowledge investments already made for recreational facilities in Caldera Springs. The applicant points to the BOCC decision in Eagle Crest III where prior expenditures and construction of recreational facilities was deemed sufficient to satisfy this standard. The applicant also states that of the approximately $50,000,000.00 already spent on Caldera Springs, $11,000,000.00 has been spent on recreational facilities. This amount is not disputed in the record. The Hearings Officer agrees with the applicant's reading of Eagle Crest III. Prior expenditures that meet the minimum threshold may be used to satisfy this criterion. There is no contrary evidence in the record that would undermine the applicant's assertion that $11,000,000.00 has already been spent on recreational facilities. Given that those facilities are built, they are specific and certain enough to satisfy this standard. This section may also be the best place to address the comments made at the hearings and in written testimony about Harpers Bridge and the state of the boat ramp. Although safe reliable access to the Deschutes River is definitely a public good, there is nothing in the criteria governing destination resorts that would necessarily require this applicant to provide improvements to the existing river access. The Hearings Officer cannot take action on those comments because they are not relevant to any applicable approval standards. 5. The facilities and accommodations required by DCC 18.113.060(A)(2) through (4) must be constructed or financially assured pursuant to DCC 18.113.110 prior to closure of sales, rental or lease of any residential dwellings or lots or as allowed by DCC 18.113.060(A)(1). FINDING: Because the facilities meeting the threshold amounts described above have been constructed, there is no need to financially assure any additional facilities. As discussed above, at the point in time at which the applicant will be required to provide additional OLUs, the applicant will elect whether to financially assure those units or construct them prior to sale of single-family units. B. All destination resorts shall have a minimum of 160 contiguous acres of land. Acreage split by public roads or rivers or streams shall count toward the acreage limit, provided that the CMP demonstrates that the isolated acreage will be operated or managed in a manner that will be integral to the remainder of the resort. FINDING: Together, the original resort and the annexation property will encompass approximately 1,009 contiguous acres of land. This standard is met. 247 -15 -000464 -CU - Caldera Springs 45 C. All destination resorts shall have direct access onto a state or County arterial or collector roadway, as designated by the Comprehensive Plan. FINDING: The existing Resort has access onto South Century Drive, a designated county arterial road. This criterion will be met. D. A destination resort shall, cumulatively and for each phase, meet the following minimum requirements: 1. The resort shall have a minimum of 50 percent of the total acreage of the development dedicated to permanent open space, excluding yards, streets and parking areas. Portions of individual residential Tots and landscape area requirements for developed recreational facilities, visitor oriented accommodations or multi family or commercial uses established by DCC 18.124.070 shall not be considered open space; FINDING: The applicant's Exhibit A and A-1 indicate that the Resort, as a whole, will encompass approximately 884 acres of land. Approximately 463 acres, or 52 percent, of the Resort will be retained as permanent open space. The applicant's burden of proof states that this calculation does not include the 125 -acre Wildlife Mitigation Tract. If this Tract were included in the calculations, the Resort would encompass approximately 1,009 acres with 588 acres, or 58 percent, retained as permanent open space. This criterion will be met. 2. Individually owned residential units that do not meet the definition of overnight lodging in DCC 18.04.030 shall not exceed two and one-half such units for each unit of visitor oriented overnight lodging. Individually owned units shall be considered visitor oriented lodging if they are available for overnight rental use by the general public for at least 38 weeks per calendar year through one or more central reservation and check in service(s) operated by the destination resort or by a real estate property manager, as defined in ORS 696.010. a. The ratio applies to destination resorts which were previously approved under a different standard. FINDING: As explained above, the original resort was approved with a 2:1 ratio. Under this application, the applicant proposes to modify the ratio to 2.5:1, in conformance with this standard. Staff recommends a condition of approval requiring the Resort, at all times, to comply with the 2.5:1 ratio. A condition of approval is warranted requiring all OLUs to be available for overnight rental use by the general public for at least 38 weeks per calendar year through one or more central reservation and check-in services, operated by the destination resort or by a real estate property manager, as defined in ORS 696.010. E. Phasing. A destination resort authorized pursuant to DCC 18.113.060 may be developed in phases. If a proposed resort is to 247 -15 -000464 -CU - Caldera Springs 46 be developed in phases, each phase shall be as described in the CMP. Each individual phase shall meet the following requirements: 1. Each phase, together with previously completed phases, if any, shall be capable of operating in a manner consistent with the intent and purpose of DCC 18.113 and Goal 8. 2. The first phase and each subsequent phase of the destination resort shall cumulatively meet the minimum requirements of DCC 18.113.060 and DCC 18.113.070. 3. Each phase may include two or more distinct noncontiguous areas within the destination resort. FINDING: The applicant proposes to develop the resort in phases. Exhibits A-2 and A- 3 generally depict the phasing of the project, although there is no specific timeline for the development of any particular phase, as development will largely depend on market demand. The applicant indicates that the first phase is likely to include only housing, with subsequent phases to include overnight lodging, additional recreational amenities and resort core features. The minimum required meeting rooms, food and beverage service, overnight lodging, and recreational facilities have already been developed in connection with the initial build out of Caldera Springs. Although anticipated to be developed in phases, all subsequent phases will be fully integrated into the Caldera Springs community, resulting in the entire resort operating as a cohesive whole. As shown in the site plans, the resort will be connected via open space area, roads, and pedestrian and bike pathways. Existing resort amenities will be available to the annexation property. The record shows no intent to develop the property into more distinct, non-contiguous areas. This criterion is met. F. Destination resorts shall not exceed a density of one and one half dwelling units per acre including residential dwelling units and excluding visitor oriented overnight lodging. FINDING: The applicant calculates total acreage of Caldera Springs and the annexation property to be approximately 883 acres, not including the 125 -acre Wildlife Mitigation Tract. At this size, the allowed density is 1,324 dwelling units. The total number of residential dwelling units, excluding visitor oriented overnight lodging, proposed by the applicant for both properties is 715 residential dwelling units, meeting this standard. G. Dimensional Standards: 1. The minimum lot area, width, lot coverage, frontage and yard requirements and building heights otherwise applying to structures in underlying zones and the provisions of DCC 18.116 relating to solar access shall not apply within a destination resort. These standards shall be determined by the Planning Director or Hearings Body at the time of the CMP. In determining these standards, the Planning Director or Hearings Body shall find that the minimum specified in the CMP are adequate to satisfy the intent of the comprehensive plan relating to solar access, fire protection, vehicle access, visual management within landscape management corridors and to protect resources identified by LCDC Goal 5 which are identified in the Comprehensive Plan. At a minimum, a 100 - foot setback shall be maintained from all streams and rivers. Rimrock setbacks shall be as provided in DCC Title 18. No lot 247 -15 -000464 -CU - Caldera Springs 47 for a single family residence shall exceed an overall project average of 22,000 square feet in size. FINDING: No natural streams, rivers, or rimrock exist on-site. This criterion allows the Planning Director or Hearings Body to establish standards for the minimum lot area, width, lot coverage, frontage, yard requirements, building heights, and solar access at the time of the Conceptual Master Plan (CMP). The applicant proposes the same Dimensional Standards that were approved with the existing Resort. Those standards are as follows: SINGLE FAMILY RESIDENTIAL A. Height Regulations. No building or structure should be hereinafter erected, enlarged, or structurally altered to exceed 30 feet in height, except as allowed under DCC 18.120.040. B. Lot Requirements. 1. Lot Area. Every lot shall have a minimum area of 6,000 square feet. 2. Every lot should have a minimum average width at the building site of 60 feet, except that a corner lot shall be a minimum of 70 feet. 3. Every lot shall have a minimum width at the street of 50 feet. 4. The front yard shall be a minimum of 20 feet. 5. The side yard shall be a minimum of ten feet. 6. The rear yard setback for properties which do not have a common area adjoining the rear property line, shall be a minimum of 25 feet. The rear yard setback is zero for properties with a rear property line which adjoins a common area that is 50 feet or greater in depth. The rear yard setback for properties which adjoin common areas less than 50 feet in depth shall be calculated at six inches for every one foot less than 50 feet. 7. Lot Coverage. The maximum lot coverage by buildings and structures, including decks and patios, shall be 40 percent of the lot area. MULTI -FAMILY RESIDENTIAL A. Height Regulations. No building or structure shall be hereinafter erected, enlarged, or structurally altered to exceed 35 feet in height, except as allowed under DCC 18.120.040. B. Lot Requirements. The following lot requirements shall be observed. 1. Lot Area. No lot area requirements apply, other than the overall density shall not exceed 12 dwelling units per acre. 2. Lot Width. Every lot shall have a minimum average width at the building site of 50 feet. 3. Frontage. Every lot shall have a minimum width at the street of 30 feet. 4. Front Yard. The front yard shall be a minimum of ten feet. 5. Side Yard. The side yard shall be a minimum of five feet. 6. Rear Yard. The rear yard shall have a depth of not less than five feet. The rear yard shall be increased by one-half foot for each foot by which the building height exceeds 15 feet. 7. Lot Coverage. The maximum lot coverage by buildings and structures, including decks and patios, shall be 45 percent of the total lot area. 8. All lot dimensional requirements may be waived for an approved zero lot line project. 247 -15 -000464 -CU - Caldera Springs 48 9. Setbacks for townhouses, condominiums, zero lot line dwellings, and apartments shall be determined at the time of site plan approval. COMMERCIAL AND RECREATIONAL A. Height Regulations. No building or structure shall be hereinafter erected, enlarged or structurally altered to exceed 45 feet in height. Chimneys, spires, belfries, domes, monuments, clock towers, look -out towers, smokestacks, flag poles, radio antenna, and similar projections are not subject to building height limitations. B. Lot Area. No requirements. C. Lot Width. No requirements. D. Lot Depth. 100 feet E. Front Yard. The front yard shall be a minimum of ten feet. F. Side Yard. None, unless a side lot line adjoins a residential lot, and then the side yard setback shall be a minimum of ten feet. The side yard setback from residential lots shall be increased by one-half foot for each foot by which the building height exceeds 20 feet. G. Rear Yard. None, except for a rear lot line adjoining a residential lot, and then the rear yard setback shall be a minimum of ten feet. The required rear yard setback from residential lots shall be increased by one-half foot for each foot by which the building height exceeds 20 feet. H. Lot Coverage. No requirements. PROPOSED OVERNIGHT LODGING COTTAGE LOTS: A. Height Regulations. No building or structure shall be hereinafter erected, enlarged or structurally altered to exceed 30 feet in height. Chimneys, spires, belfries, domes, monuments, clock towers, look -out towers, smokestacks, flag poles, radio antenna, and similar projections are not subject to building height limitations. B. Lot Area. No requirements. C. Lot Width. No requirements. D. Lot Depth. No requirements. E. Frontage: No minimum road frontage requirements. Each lot shall have access to required parking areas and driveways, and to a private resort road, via a perpetual easement recorded for the benefit of the subject lot. F. Front Yard. No requirements. G. Side Yard. None, except for a side lot line adjoining a single-family residential lot, and then the side yard shall be a minimum of ten feet. The required side yard shall be increased by one-half foot for each foot by which the building height exceeds 20 feet. H. Rear Yard. None, except for a rear lot line adjoining a single-family residential lot, and then the rear yard shall be a minimum of ten feet. The required rear yard shall be increased by one-half foot for each foot by which the building height exceeds 20 feet. Lot Coverage. No requirements. J Location of parking/driveways. Parking areas and driveways associated with overnight lodging cottages may be clustered and located on adjacent Tots and/or common areas, and may span lot lines. 247 -15 -000464 -CU - Caldera Springs 49 SOLAR ACCESS A. All structures within the destination resort shall be exempt from building setbacks for the protection of solar access, exempt from solar height restrictions, and exempt from solar access permits. The standards associated with the LM Combining Zone are addressed above. Similar to the finding made by the Hearings Officer in the Caldera Springs approval, staff believes the setbacks identified above are sufficient to satisfy the intent of the comprehensive plan for LM corridors except for limitations on building height. As detailed above, staff recommends a condition of approval limiting building height to a maximum of 30 feet as measured from natural grade for all structures subject to the visible LM standards. The approved Caldera Springs CMP is exempt from the County's solar access standards. The annexation property similarly requests an exemption from the County's solar standards. The applicant argues that historically, solar access and solar property right conditions have not been applied to destination resorts. The applicant points to Tetherow, which was exempted from requirements of meeting solar setback requirements, and to Pronghorn, where use of solar access similarly has been minimal. As is the case with Caldera Springs and the annexation property, the applicant states the design guidelines both encourage and require homes to be designed to emphasize preservation of natural features and vegetation, recreation enjoyment, view corridors and overall home design. The applicant further argues that the state and county destination resort development standards make compliance with solar conditions difficult or impossible. The applicant points to the Deschutes County Destination Resort Ordinance which requires fifty percent open space for the entire land tract, significant buffer areas, a mitigation tract and a wildlife mitigation corridor. The applicant states that these "no -build" areas, together with the predominant north -south orientation of the underlying property limit the ability to fully incorporate solar standards. However, the applicant concludes that the open spaces, buffers and wildlife mitigation corridors will provide solar protection for homes on the perimeter of the proposed development and will provide solar access for many of the resort lots. As is the case with the original development of Caldera Springs, most proposed development areas are oriented in a north to south configuration due to orientation of the property and natural topography. This north to south configuration results in primary solar access to the side of the proposed homes, minimizing opportunities to protect solar access. Given the overall protection of views, open space and natural corridors exceeding 50 percent of the site and the county's historical practices related to solar in other resort approvals, the applicant believes that independent solar standards should not apply to the individual lots. 2. Exterior setbacks. a. Except as otherwise specified herein, all development (including structures, site obscuring fences of over three feet in height and changes to the natural topography of the land) shall be setback from exterior property lines as follows: 247 -15 -000464 -CU - Caldera Springs 50 i. Three hundred fifty feet for commercial develop- ment including all associated parking areas; ii. Two hundred fifty feet for multi family development and visitor oriented accommodations (except for single family residences) including all associated parking areas; iii. One hundred fifty feet for above grade development other than that listed in DCC 18.113.060(G)(2)(a)(i) and (ii); iv. One hundred feet for roads; v. Fifty feet for golf courses; and vi. Fifty feet for jogging trails and bike paths where they abut private developed lots and no setback for where they abut public roads and public lands. b. Notwithstanding DCC 18.113.060(G)(2)(a)(iii), above grade development other than that listed in DCC 18.113.060(G)(2)(a)(i) and (ii) shall be set back 250 feet in circumstances where state highways coincide with exterior property lines. c. The setbacks of DCC 18.113.060 shall not apply to entry roadways and signs. FINDING: The record demonstrates that these setbacks can be met. Staff recommends that any berms proposed on-site should also be subject to criterion iii. The Hearings Officer agrees. H. Fioodpiain requirements. The floodpiain zone (FP) requirements of DCC 18.96 shall apply to all developed portions of a destination resort in an FP Zone in addition to any applicable criteria of DCC 18.113. Except for floodplain areas which have been granted an exception to LCDC goals 3 and 4, floodplain zones shall not be considered part of a destination resort when determining compliance with the following standards; 1. One hundred sixty acre minimum site; 2. Density of development; 3. Open space requirements. A conservation easement as described in DCC Title 18 shall be conveyed to the County for all areas within a floodplain which are part of a destination resort. FINDING: No lands zoned Flood Plain exist on-site. These criteria do not apply. I. The Landscape Management Combining Zone (LM) requirements of DCC 18.84 shall apply to destination resorts where applicable. FINDING: The applicable LM criteria are addressed above. J. Excavation, grading and fill and removal within the bed and banks of a stream or river or in a wetland shall be a separate conditional use subject to all pertinent requirements of DCC Title 18. 247 -15 -000464 -CU - Caldera Springs 51 FINDING: No natural streams, rivers or wetlands exist on-site. A separate conditional use permit is not required. K. Time share units not included in the overnight lodging calculations shall be subject to approval under the conditional use criteria set forth in DCC 18.128. Time share units identified as part of the destination resort's overnight lodging units shall not be subject to the time share conditional use criteria of DCC 18.128. FINDING: No time share units are proposed as part of the annexation property. This criterion does not apply. L. The overnight lodging criteria shall be met, including the 150 -unit minimum and the 2-1/2 to 1 ratio set forth in DCC 18.113.060(D)(2). 1. Failure of the approved destination resort to comply with the requirements in DCC 18.113.060(L)(2) through (6) will result in the County declining to accept or process any further land use actions associated with any part of the resort and the County shall not issue any permits associated with any lots or site plans on any part of the resort until proof is provided to the County of compliance with those conditions. FINDING: As noted previously, the existing Resort includes 152 constructed OLUs. The applicant proposes to modify the destination resort approval such that the 2.5:1 ratio applies across the existing and proposed development. A condition of approval to ensure compliance is warranted. 2. Each resort shall compile, and maintain, in perpetuity, a registry of all overnight lodging units. a. The list shall identify each individually -owned unit that is counted as overnight lodging. b. At all times, at least one entity shall be responsible for maintaining the registry and fulfilling the reporting requirements of DCC 18.113.060(L)(2) through (6). c. Initially, the resort management shall be responsible for compiling and maintaining the registry. d. As a resort develops, the developer shall transfer responsibility for maintaining the registry to the homeowner association(s). The terms and timing of this transfer shall be specified in the Conditions, Covenants & Restrictions (CC&Rs). e. Resort management shall notify the County prior to assigning the registry to a homeowner association. f. Each resort shall maintain records documenting its rental program related to overnight lodging units at a convenient location in Deschutes County, with those records accessible to the County upon 72 hour notice from the County. g. As used in this section, "resort management" includes, but is not limited to, the applicant and the applicant's heirs, successors in interest, assignees other than a home owners association. 247 -15 -000464 -CU - Caldera Springs 52 FINDING: Staff notes that the existing Resort was modified under MC -13-5 to add the registry requirements, which did not exist under the previous destination resort criteria. A condition of approval to ensure compliance with the registry requirements is warranted. 3. An annual report shall be submitted to the Planning Division by the resort management or home owners association(s) each February 1, documenting all of the following as of December 31 of the previous year: a. The minimum of 150 permanent units of overnight lodging have been constructed or that the resort is not yet required to have constructed the 150 units; b. The number of individually -owned residential platted lots and the number of overnight -lodging units; c. The ratio between the individually -owned residential platted lots and the overnight lodging units; d. The following information on each individually -owned residential unit counted as overnight lodging. i. Who the owner or owners have been over the last year; ii. How many nights out of the year the unit was available for rent; iii. How many nights out of the year the unit was rented out as an overnight lodging facility under DCC 18.113; iv. Documentation showing that these units were available for rental as required. e. This information shall be public record subject to ORS 192.502(17). FINDING: A condition of approval to ensure compliance is warranted. 4. To facilitate rental to the general public of the overnight lodging units, each resort shall set up and maintain in perpetuity a telephone reservation system. FINDING: A condition of approval to ensure compliance is warranted. 5. Any outside property managers renting required overnight lodging units shall be required to cooperate with the provisions of this code and to annually provide rental information on any required overnight lodging units they represent to the central office as described in DCC 18.113.060(L)(2) and (3). FINDING: A condition of approval to ensure compliance is warranted. 6. Before approval of each final plat, all the following shall be provided: a. Documentation demonstrating compliance with the 2- 1/2 to 1 ratio as defined in DCC 18.113.060(D)(2); 247 -15 -000464 -CU - Caldera Springs 53 b. Documentation on all individually -owned residential units counted as overnight lodging, including all of the following: Designation on the plat of any individually - owned units that are going to be counted as overnight lodging; ii. Deed restrictions requiring the individually - owned residential units designated as overnight lodging units to be available for rental at least 38 weeks each year through a central reservation and check-in service operated by the resort or by a real estate property manager, as defined in ORS 696.010; iii. An irrevocable provision in the resort Conditions, Covenants and Restrictions ("CC&Rs) requiring the individually -owned residential units designated as overnight lodging units to be available for rental at least 38 weeks each year through a central reservation and check-in service operated by the resort or by a real estate property manager, as defined in ORS 696.010; iv. A provision in the resort CC&R's that all property owners within the resort recognize that failure to meet the conditions in DCC 18.113.060(L)(6)(b)(iii) is a violation of Deschutes County Code and subject to code enforcement proceedings by the County; v. Inclusion of language in any rental contract between the owner of an individually -owned residential unit designated as an overnight lodging unit and any central reservation and check in service or real estate property manager requiring that such unit be available for rental at least 38 weeks each year through a central reservation and check-in service operated by the resort or by a real estate property manager, as defined in ORS 696.010, and that failure to meet the conditions in DCC 18.113.060(L)(6)(b)(v) is a violation of Deschutes County Code and subject to code enforcement proceedings by the County. FINDING: Staff notes that the existing Resort was modified under MC -13-5 to remove the previous standard which required 45 -week rental availability, and replace it with today's standard of 38 weeks. A condition of approval to ensure compliance is warranted. 4. Section 18.113.070. Approval Criteria. In order to approve a destination resort, the Planning Director or Hearings Body shall find from substantial evidence in the record that: 247 -15 -000464 -CU - Caldera Springs 54 A. The subject proposal is a destination resort as defined in DCC 18.040.030. FINDING: The existing Caldera Springs resort and proposed annexation includes and will include all of the components identified for a destination resort under DCC 18.04.030. This criterion will be met. B. All standards established by DCC 18.113.060 are or will be met. FINDING: As the findings above show, all standards established by DCC 18.113.060 will be met or can be met with the recommended conditions of approval. C. The economic analysis demonstrates that: 1. The necessary financial resources are available for the applicant to undertake the development consistent with the minimum investment requirements established by DCC 18.113. FINDING: The Economic Feasibility Analysis, prepared by Peterson Economics and submitted as Exhibit 0, demonstrates that the applicant has the necessary financial resources to meet the minimum development and investment standards of DCC 18.113. 2. Appropriate assurance has been submitted by lending institutions or other financial entities that the developer has or can reasonably obtain adequate financial support for the proposal once approved. FINDING: A Letter. of Financial Commitment and Developer Resume, submitted as Exhibit P, demonstrate that the applicant has or reasonably can obtain adequate financial support for the project. Staff agrees and believes this criterion will be met. 3. The destination resort will provide a substantial financial contribution which positively benefits the local economy throughout the life of the entire project, considering changes in employment, demands for new or increased levels of public service, housing for employees and the effects of loss of resource land. FINDING: The feasibility analysis discusses the financial contributions that the resort will make to the local economy, including the contributions to the construction industry, employee base, payroll and benefits package, property tax, and transient room tax revenues for Deschutes County. 4. The natural amenities of the site considered together with the identified developed recreation facilities to be provided with the resort, will constitute a primary attraction to visitors, based on the economic feasibility analysis. FINDING: There are no outstanding natural amenities on the site that are likely to constitute a primary attraction to visitors. The feasibility analysis indicates that visitors will be attracted to the resort based upon the high-quality recreational facilities, scenic vistas, proximity to the Bend urban area, Mt. Bachelor, and the Deschutes River. 247 -15 -000464 -CU - Caldera Springs 55 D. Any negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource. FINDING: Staff provided the following analysis of the applicant's CMP with respect to this criterion: The applicant's burden of proof Exhibit C is a Wildlife Habitat Evaluation Procedure and Mitigation Plan ("Wildlife Report") for the Caldera Springs Annexation Development. The Wildlife Report was prepared by Dr. Wendy Wente of Mason, Bruce and Girard, in consultation with ODFW. The applicant states that ODFW's recommendations were incorporated into the Wildlife Report. The Wildlife Report addresses two primary goals. First, it describes and evaluates the habitat and wildlife resources on the property and immediate vicinity. Second, through an extensive Habitat Evaluation Procedure ("HEP Analysis") it characterized the floral and faunal constituents of each habitat type, as well as topography, aspect, and other habitat elements. The HEP Analysis described the salient characteristics of each habitat type, such as vegetative components, structure, age class distribution, landscape position, topography, elevation, hydrologic regime, and management history of the property. The HEP Analysis results include the pre -development wildlife habitat conditions, anticipated post -development conditions, and proposed enhancements and mitigation measures intended to offset anticipated reductions of habitat quality due to the project. The HEP Analysis concludes that the applicant can mitigate all negative impacts on fish and wildlife resources. Proposed mitigation includes the following: • Preservation of a 125 -acre Wildlife Mitigation Tract located between the annexation property and the railroad • Monitoring and eradication of weeds and non-native plants where possible • Preservation of live and dead ponderosa pine trees where possible • Retention of downed logs and snags where possible • Prohibiting fire wood cutting or vegetation alteration beyond that prescribed as management for increased habitat value • Retention of rock outcrops where possible • Installation and maintenance of nest boxes • Prohibiting new fences within the development • Posting and enforcement of leash laws • Prohibiting livestock on the property • Prohibiting recreational off-road motor vehicle use in the open space areas • Requiring a 100 -foot setback for all lots adjacent to open space • Initiating a program for proper garbage storage and disposal • Initiating an educational program for residents focused on native wildlife populations using the subject property Staff also recommended that the applicant respond to the guidance on how to assure the mitigation measures are successful identified in the recent Hearings Officer's 247 -15 -000464 -CU - Caldera Springs 56 decision on The Tree Farm.5 In the Board of County Commissioners ("Board") approval6 of The Tree Farm, the Board affirmed the Hearings Officer's identification of required wildlife management plan components as follows: A. The wildlife plan must include an action plan that identifies specific roles and responsibilities for the developer and homeowners association ("HOA"), and describes how and when the developer will hand off responsibility to the HOA. B. What specific measures will be undertaken consistent with the wildfire plan to assure more aggressive fuel reduction measures, if any, will not interfere with wildlife use of the 125 -acre Wildlife Mitigation Tract, and the east -west travel corridor along Vandevert Road? The Hearings Officer agrees with Staff's analysis above and that the additional refinements identified in The Tree Farm should be addressed. That analysis appears below. On November 10, 2015 the applicant submitted a Wildlife Habitat Evaluation Procedure and Mitigation Plan ("HEP") that refines the initial CMP. In addition to the evaluation, the HEP contains an "Integration of Habitat Management with Wildlfire Protection" plan, "Wildlife Habitat Conservation and Mitigation Measures," including an action plan, and explanation of the mitigation site set aside, and an enforcement section. In their December 15, 2015 submission, COLW does not comment on the HEP or make any arguments about its adequacy. Instead, COLW argues that the Court of Appeals decision in Gould v. Deschutes County requires that the only way to meet DCC 18.113.070(D) is through a 1:1 mitigation tract. COLW also provides some information and argument about the state of the deer migration range in the area and the health of mule deer populations in the vicinity of the subject property. In their December 29, 2015 letter, the applicant counters that neither DCC 18.113.070 nor Gould mandates a 1:1 mitigation tract. The applicant's November 10, 2015 submission states that the court in Gould allowed a HEP approach to complying with DCC 18.113.070(D). The applicant also argues generally that the design of the expansion area will leave much of the developed part of the resort open for some level of habitat use by mule deer even though those areas will be partially impacted. The Hearings Officer concludes that the HEP and the mitigation plan are sufficient to satisfy DCC 18.113.070(D). First, the record is clear that Oregon Department of Fish and Wildlife reviewed and approved the HEP, and that the applicant incorporated all of ODFW's recommendations. That evidence is not disputed by any party and constitutes substantial evidence that ODFW concluded that the HEP could completely mitigate negative impacts on fish and wildlife resources including habitat impacts. Second, COLW's arguments do in any way address the HEP or offer reasons why it is deficient or in error. Without such argument it is very difficult for the Hearings Officer to understand why ODFW's conclusions should not be deferred to. Third, the Hearings Officer agrees that Gould does not mandate a 1:1 mitigation tract, and certainly does not stand for the 5 The Tree Farm, land use file numbers 247 -15 -000242 -CU, 243 -TP, 244 -CU, 245 -TP, 246 -CU, 247 -TP, 248 -CU, 249 -TP, 250 -CU, 251 -TP 6 Board Document Nos. 2015-638, 639, 640, 641 and 642. 247 -15 -000464 -CU - Caldera Springs 57 proposition that an acre for acre replacement of habitat is the only way to meet the "no net loss" standard. Seeing no credible claims of insufficiency in the applicant's HEP and mitigation plan, the Hearings Officer finds that it satisfies this criterion. As for the questions Staff recommended from The Tree Farm decision, the Integration of Habitat Management with Wildlfire Protection plan identified above contains multiple specific actions and treatments of vegetation and fuels in the developed area. Those actions and treatments also harmonize the wildfire plan, which is discussed below, with the actions necessary to implement the HEP mitigation plan. The plan is detailed and specific enough to adequately answer Question B above. As for Question A, the November 10, 2015 HEP analysis contains a specific "Action Plan for Managing Wildlife Habitat" that contains 18 separate actions that must be taken to preserve habitat functions in the development. Separately, there are rules imposed on the treatment of the 125 acre mitigation tract to ensure its protection. The HEP includes an "Implementation, Monitoring, and Enforcement of the Wildlife Conservation Measures" section that states that the conservation measures: 1) will be enforced through the CC&Rs, 2) will be reviewed through an audit every 3-5 years, and 3) that the developer and/or the Caldera Springs Owners Association will be responsible for meeting the County Code and conditions of any approval. The Hearings Officer concludes that the mitigation measures identified in the HEP are specific enough to be implemented in a way that the County and the public can evaluate, and will enforceable through the CC&Rs and County code enforcement in a rigorous enough way to provide certainty that they will be implemented and maintained over time. This criterion is met. E. Important natural features, including but not limited to significant wetlands, riparian habitat, and landscape management corridors will be maintained. Riparian vegetation within 100 feet of streams, rivers and significant wetlands will be maintained. Alterations to important natural features, including placement of structures, is allowed so long as the overall values of the feature are maintained. FINDING: Neither natural springs nor surface waters exist. However, the applicant indicates that an elevated groundwater table may be visible during extremely wet weather conditions during spring months. The burden of proof states that no major geographic features exist on the subject property. No significant rocky outcrops, no particular vista points, and no steep visible hillsides exist. No significant wetlands were identified in the record. This criterion is met. F. The development will not force a significant change in accepted farm or forest practices or significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use. FINDING: Property to the north, west and south are developed, or partially developed, with residential and commercial uses. No forestry or agricultural uses are present on these properties. Consequently, staff found the proposal will not force a significant 247 -15 -000464 -CU - Caldera Springs 58 change in accepted farm or forest practices or force a significant increase the cost of accepted farm or forest practices on these properties. The applicant indicates the only property in the "surrounding lands" devoted to forest use is the USFS property east of the Burlington Northern Railroad main line and east of the 125 -acre Wildlife Mitigation Tract. At the present time, the USFS property is not being used for timber production. The applicant argues that given the separation of the USFS property and the annexation property by the railroad and the Wildlife Mitigation Tract, there is no evidence to suggest that the development with have any impact on how the USFS manages the property, let alone force a significant change in or costs of forest practices. Staff notes that no comments were received from the USFS regarding concerns about impacts to forest practices on USFS lands. This criterion is met. G. Destination resort developments that significantly affect a transportation facility shall assure that the development is consistent with the identified function, capacity and level of service of the facility. This shall be accomplished by either: 1. Limiting the development to be consistent with the planned function, capacity and level of service of the transportation facility; 2. Providing transportation facilities adequate to support the proposed development consistent with Oregon Administrative Rules chapter 660, Division 12; or 3. Altering land use densities, design requirements or using other methods to reduce demand for automobile travel and to meet travel needs through other modes. A destination resort significantly affects a transportation facility if it would result in levels of travel or access that are inconsistent with the functional classification of a facility or would reduce the level of service of the facility below the minimum acceptable level identified in the relevant transportation system plan. a. Where the option of providing transportation facilities is chosen, the applicant shall be required to improve impacted roads to the full standards of the affected authority as a condition of approval. Timing of such improvements shall be based upon the timing of the impacts created by the development as determined by the traffic study or the recommendations of the affected road authority. b. Access within the project shall be adequate to serve the project in a safe and efficient manner for each phase of the project. FINDING: The applicant submitted a transportation impact analysis ("TIA") prepared by Kittelson and Associates, and attached as Exhibit D. Although not required by the above standard, the applicant states the TIA was prepared to meet the above requirements, and the requirements of the Transportation Planning Rule and the requirements of ORS 197.460(4). Prior to development and study under the TIA, the applicant consulted with ODOT and Deschutes County, resulting in an agreed-upon scoping memorandum and analysis. The TIA concludes that all study intersections will continue to operate 247 -15 -000464 -CU - Caldera Springs 59 within applicable performance standards through the 2030 horizon year with the addition of all trips associated with the resort proposal. Furthermore, the TIA concludes that no off-site mitigation measures are required to accommodate the construction of the resort as proposed and that it may be developed consistent with the identified function, capacity and level of service all affected facilities. During the notice of application comment period, ODOT identified a discrepancy between the proposal and the TIA. The annexation includes new access onto Vandevert Road. The TIA indicated that this access was for emergency use only. After the applicant was notified of this issue, Kittleson and Associates amended the TIA to analyze the proposed new access onto Vandevert Road. Kittleson and Associates concluded that the impact of the amendment was minor with no change in findings and no adverse impact to Level of Service (LOS) for affected road facilities. The Deschutes County Senior Transportation Planner agreed with Kittleson's conclusions that the proposed annexation will not result in a significant negative impact to a transportation facility. The applicant submitted a final TIA to respond to public and agency comments related to transportation impacts. The final TIA includes an updated seasonal factor for traffic volumes. With respect to concerns regarding crashes, the final TIA concludes that the Vandevert/Highway 97 intersection can present difficult decision making for drivers. For this reason, traffic should be routed to the Century Drive interchange for northbound trips from the annexation property to limit left -turns at the Vandevert/Highway 97 intersection. The final TIA concludes that in the horizon years of 2030 and 2035, the Vandevert/Highway 97 intersection will exceed ODOT's mobility standard. As a result, the final TIA proposes three mitigation options: 1) Restricting the Vandevert Road access to construction traffic only; 2) Restricting left -out movements from the Vandevert Road access; or 3) Installation of a raised median along Highway 97 to enforce right -in and right -out access. ODOT states that it is satisfied that the project will not adversely affect the operation of the US 97 intersection at Vandevert with the proposed mitigation. The proposed mitigation is to limit the Vandevert access to construction traffic only or to restrict outbound left -turn movements until such time as the Vandevert connection to US 97 is closed or restricted. Restricting outbound left -turns would be less effective and ODOT would request the opportunity to review the turn -restriction design prior to it being permitted. The county's Senior Transportation Planner, Peter Russell, states that he knows of no design that will successfully and consistently restrict a left -out movement from Vandevert Road. For this reason, the county recommends the Vandevert access be open to construction traffic only and then become a gated, emergency -only access until Vandevert is disconnected from Highway 97 or the Spring River/Century Drive roundabout is constructed. Regarding a raised median along Highway 97, ODOT states that it is open to discussions to close or restrict access to the US 97/Vandevert intersection, but the timing of that improvement is uncertain. As this facility is solely under the jurisdiction of ODOT, the county provides no comments on this potential mitigation. 247 -15 -000464 -CU - Caldera Springs 60 The final TIA also concludes that the Spring River/Century Drive intersection will exceed the county's Level of Service ("LOS") D standard in horizon years 2030 and 2035. The county's Transportation System Plan ("TSP") identifies the construction of a single -lane roundabout at this intersection at an expected cost of approximately $900,000. Mr. Russell notes that System Development Charges ("SDC") likely to be assessed to the developer will be approximately $1.69 million to $1.84 million. Per staffs conversation with the Road Department, given the identification of the required improvement and the collection of SDCs, the county believes there is a reasonable expectation that the roundabout will be constructed at the time it is needed. This additional evidence in combination with Staffs analysis is sufficient to show compliance with these criteria. The additional information provided by the applicant refining the TIA is also discussed in the findings for DCC 18.113.050(B)(2) above. Those findings are incorporated here by this reference. These criteria are met. H. The development will not create the potential for natural hazards identified in the County Comprehensive Plan. No structure will be located on slopes exceeding 25 percent. A wildfire management plan will be implemented to ensure that wildfire hazards are minimized to the greatest extent practical and allow for safe evacuation. With the exception of the slope restriction of DCC 18.113.070, which shall apply to destination resorts in forest zones, wildfire management of destination resorts in forest zones shall be subject to the requirements of DCC 18.40.070, where applicable, as to each individual structure and dwelling. FINDING: The Hearings Officer addresses this criterion below. Prior to that discussion, a short response to COLW's arguments regarding wildfire is appropriate here. COLW's December 15, 2015 submission contains a section stating that the wildland fire resort criteria have not been met. However, review of that section leaves the Hearings Officer with the conclusion that no violation of law or failure to address an applicable criterion has been cited by COLW. While the section does a fine job of identifying the existing wildfire threats, and the sometimes grave conditions that promote wildfire in the vicinity, there is no connection between those recitations and the applicable criterion above. Importantly, COLW does not challenge the specific provisions of the WMP, nor does COLW address the applicant's supplemental testimony and evidence in the November 10, 2015 submission. As such, the Hearings Officer concludes that the findings below both sufficiently address the applicable criterion and rebut COLW's allegation that the WMP is insufficient. The applicant's Exhibit M is the Wildfire Management Plan ("WMP"), prepared by Jeff Pendleton, a retired USFS Wildland Fire Consultant. The WMP was prepared in consultation with Deschutes County Forester, Ed Keith, and Alison Green of Project Wildfire. The applicant states that all recommendations of the County Forester and Ms. Green were incorporated into the report. Pursuant to the WMP, the applicant concludes that all wildfire hazards have been minimized to the greatest extent practicable, and the three evacuation routes, with exits on the north, west and south sides of the project, allow for safe evacuation of the property in the event of wildfire. The proposal does not include development on slopes exceeding 25%. 247 -15 -000464 -CU - Caldera Springs 61 The WMP includes a number of key components. First, it imposes obligations for wildfire management on the homeowners and the homeowners' association. Consequently, to the extent that an individual homeowner is not in compliance with a specified requirement, the association has the right to enforce the obligation. Second, the plan provides for ongoing treatment of the entire property in 5 -year cycles to assure that every portion of the property is treated every five years. Third, the treatment requirements (e.g., thinning, spacing, ladder fuel reduction) are specified in the plan and proposed to be included as conditions of approval. Finally, all terms and conditions of the WMP are binding through the imposition of design standards for individual Tots, and open space and Wildlife Mitigation Area standards through the CC&Rs. The proposed conditions of approval in the WMP include the following: • Maintain the entire resort within the La Pine Rural Fire Protection District or any successor in interest to the fire protection district. • Development of the annexation property shall be designed to maintain 1,000 gpm fire protection flow in addition to meeting the domestic needs of the resort. Fire hydrants shall be placed along all rights of ways within the resort at spacing approved by the LRFD Fire Chief. • Prior to recordation of the final plat for each phase, the entire open space/meadow/lakes area of that phase shall be treated through a combination of thinning, removal of understory trees, pruning, removal of ladder fuels in order to achieve an expected average flame length of 4 feet or less during 90th percentile weather and fuel conditions. As a condition to recording the final plat, the applicant shall provide written certification from the Deschutes County Forester that the property phase has been so treated. • Throughout the life of the project the applicant shall be required to comply with the identified treatment and identified rotation such that every area of the annexation property is retreated and maintained every 5 years. The CC&Rs for the property shall identify the homeowners' association as the party responsible for the on-going treatment of the open space/meadow/lakes area. • Prior to recordation of the final plat for each phase of development, a proportional section of the wildlife area shall be treated through a combination of thinning, removal of understory trees, pruning, removal of ladder fuels (i) in order to achieve an expected average flame length of 4 feet or Tess during 90th percentile weather and fuel conditions and/or (ii) for 80% of the treated area, thin trees to an average of 20 feet' spacing, limbed to a height 6 feet. As a condition to recording the final plat, the applicant shall provide written certification from the Deschutes County Forester that the applicable portion of the property has been so treated. • Throughout the life of the project the applicant shall be required to comply with the identified treatment and identified rotation set forth above on a rotating 5 -year basis to ensure that the entire Wildlife Management Area is treated over a 15 year period. The CC&Rs for the property shall identify the homeowners' association as the party responsible for the on-going treatment. • In order to reduce the risk of ignition from the operation of the rail right-of-way the applicant shall thin trees to 20 feet minimum spacing with removal of all mid - height ladder fuels. This treatment shall be repeated every 5 years during the life of the project. 247 -15 -000464 -CU - Caldera Springs 62 • The CC&Rs for the project shall incorporate the following standards which shall be applicable to each lot and shall be enforceable the homeowners' association for the resort: All owners are required to adhere to the following planning and design considerations: A. All structures shall include a 30' (or to the property line if less distance) defensible space "firebreak" surrounding them, consisting of the following: 1. Dry grasses are to be kept mown to less than 4" from June 1 to October 1. Scattered bunchgrasses and other short or sporadic grasses are excepted. 2. Trees overhanging structures to be essentially free of dead material. 3. Roofs, gutters and decks shall be maintained essentially free of accumulations of pine needles and other debris from June 1 to October 1. 4. No trees or vegetation is allowed within 10 feet of chimney or stove outlets. 5. Flammable mulches (bark mulch, wood chips, pine needles, etc.) or dry grasses or ground cover is not permitted within 5 feet of structures, unless adjacent to areas of the structure with non-flammable siding. 6. Bitterbrush and manzanita shall be removed entirely. 7. On pines and other flammable trees, branches shall be removed up to a minimum of six (6) feet and a maximum of eight (8) feet or to three times the height of flammable vegetation (dry grass, brush) remaining within 3 feet of tree drip lines. On pines and other flammable trees shorter than twenty (20) feet, only the branches from the lower one-third (1/3) of the tree shall be removed. All trees shall be maintained substantially free of deadwood. Dead branches shall be removed to a minimum height of ten (10) feet. B. All chimneys shall be equipped with UL or I.B.C.U. approved spark arrestor. No outdoor fire pits or fireplaces will be allowed. Only lidded barbeque grills will be allowed for outdoor cooking. C. Decks constructed of wood and greater than 12" above the ground must be kept clear of dead vegetative materials and other highly combustible items underneath them. D. Vegetation on the lot shall be developed and maintained by the Owner in accordance with the requirements of other rules established by the Association for compliance with Firewise standards. Emphasis is on the use of fire resistive species within the building envelope. All grass and landscaped areas within the building envelope of each Lot must be irrigated. E. Outside storage of firewood is prohibited. Firewise Home Construction Requirements: A. Driveways shall be constructed of asphalt or concrete pavers. All trees within 15 feet of the centerline of the driveway shall be limbed to provide at least 14 feet vertical clearance above the driveway surface. B. Only fire resistant approved roofing materials such as concrete shingles, slate, clay tile, or high relief "presidential" style asphalt composition shingles may be used. Non -reflective metal roofs may be approved by the Design Review Committee on a case by case basis. 247 -15 -000464 -CU - Caldera Springs 63 C. All chimneys are to have roof saddles, downdraft preventers, and spark arresters. D. Plastic or other low melting point skylights are prohibited. E. All window glass shall be double paned, and all windows having an area greater than 35 square feet shall be tempered glass. F. All exterior vent openings in structures and open spaces under combustible decks (if Tess than 12" clearance above the ground) must be shielded with non- combustible, corrosion resistive screening with 1/4" maximum clear openings. The WMP imposes clear standards on the development and identifies the party responsible for implementing the standard. The standards will be imposed as conditions of approval. Should a homeowner and the association both fail to comply with the conditions of approval, the County always retains its police powers to enforce the conditions of approval. Lastly, as with Caldera Springs, the applicant states that the annexation property will be recognized as a Firewise Community. With respect to Firewise Community recognition, staff recommended, and the Hearings Officer agrees, that a condition of approval requiring the homeowners association to submit proof of Firewise recognition to the Planning Division annually from the date of first recognition is warranted. Additionally, this same requirement should be added to the CCRs for the homeowners association. With respect to adequacy of the WMP, the Hearings Officer's decision in The Tree Farm identified a number of items that must be detailed in a wildfire plan for it to be adequate. The Board affirmed this methodology. Staff concluded, and the Hearings Officer agrees, that it is appropriate to apply the same standards to this application where appropriate.': A. Identify the building envelope for each lot, the extent and nature of the defensible space around each structure, and fire fuel treatments on the building envelope and the rest of the lot FINDING: Pages 7 and 8 of the WMP details a number of planning and design considerations, including specific measures that will be employed within a 30 -foot defensible space area surrounding all proposed structures. In the November 10, 2015 submission, the applicant supplemented the WMP with additional explanation of Design Guidelines that will apply to fire protection treatments within 30 feet of all structures. Section 5.14 of those guidelines imposes restrictions on trees, tree types, grasses, overhanging branches, roofs, and general requirements for development to comply with the Firewise standards. This information, and in consideration that the building envelopes must be located within 300 feet of all roads, is specific enough to understand how the defensible space around future dwellings will reduce wildfire hazard. B. Identify the fuel treatment, if any, on open space and what impact it will have on that open space For The Tree Farm, the Hearings Officer determined that the wildfire management plan for that project must identify fuel treatment on slopes adjacent to residential lots. Because there are no slopes greater than 25 percent on the subject property, this Hearings Officer did not include this component for analysis. 247 -15 -000464 -CU - Caldera Springs 64 FINDING: Pages 5-7 of the WMP identify fuel treatment measures proposed within open spaces and the Wildlife Management Area, including thinning of trees to provide crown separation, removal of understory trees, pruning of trees to remove ladder fuels, and mastication (mowing) or removal of ground vegetation to reduce potential surface fire spread. The WMP notes that a scheduled rotation of maintenance treatments throughout the Resort's common areas is currently being practiced. Within the Wildlife Management Area, the WMP states that fuel treatments should be designed to maintain a diversity of forest structure providing forage as well as hiding cover. The WMP identifies selective thinning of smaller trees encroaching into open areas to maintain a break in the aerial fuel profile. Treatment will include hand thinning and mechanical applications in a patch work rotation to provide desired forest diversity. The WMP identifies spot treatment of dead fuels, which will also break up the continuity of the fuel profile. Finally, the WPM suggests maintenance of the two track road access in the wildlife area, by pruning back vegetation, to provide firebreaks, control features, and suppression resource mobility. The findings for Question A above are supportive of this criterion as well and are adopted here by reference. Together those findings and the information in the WMP reasonably address Question B. C. Identify whether and where decks and outbuildings would be permitted on each lot. FINDING: Page 8 of the WMP states that decks constructed of wood and greater than 12" above the ground must be kept clear of dead vegetative materials and other highly combustible items underneath them. In addition, the November 10, 2015 submission states that any deck over 3' in height will be limited to an aggregate 150 square feet in size. D. What specific, identified NFPA standards apply to the proposed annexation, and what construction methods and building materials will be required for each structure to meet NFPA standards FINDING: Pages 8 and 9 of the WMP include specific construction methods and building materials for structures. Staff questioned what specific NFPA standards, if any, are relevant to the methods and materials identified in the WMP. Page 9 of the WMP addresses NFPA standards generally. The WMP states that the proposed annexation is more urban in nature than the NFPA suburban focused guidelines and, therefore, the NFPA guidelines are not directly applicable to the property. The WMP notes that NFPA standards are based on residential population densities of less than 1,000 persons per square mile, while the Caldera Springs development will have a density in excess of 1,500 persons per square mile. Additionally, the Resort will have a full fire hydrant system and two fire departments within three miles of the property. Nevertheless, the WMP states that the proposed annexation is largely in compliance with, and in some areas, exceeds the applicable elements of the NFPA 1141. The WMP goes on to state that in cases where the local standards are more restrictive than NFPA standards, the applicant will comply with the more restrictive standard. 247 -15 -000464 -CU - Caldera Springs 65 The applicant's November 10, 2015 submission identifies NFPA standards 1141 and 1144 and explains how those sections will be met. There is no testimony or evidence in the record indicating that those sections cannot be met. In addition, the applicant notes that the building materials will be limited by the building code to those appropriate for fire hazard areas. E. Provide a detailed description of how and by whom the wildfire plan will be implemented, monitored, and enforced, with particular attention to the transition between the developer and the HOA FINDING: Page 9 of the WMP discusses implementation and oversight. The owner/developer of the annexation property will be responsible for the design, infrastructure construction, and initial landscaping and treatment of forest vegetation. Individual homesite construction will go through review by the Caldera Spring Design Review Committee ("DRC") to ensure that Firewise Community principles are met. Further, the Caldera Springs Owners Association will be budgeted to undertake the following tasks: • Annual review of forest condition and health by a certified arborist • Corrective action of deficiencies noted in each annual inspection • Annual maintenance program to address ladder fuel reductions • Annual inspection and notices to home owners for removal of pine needles and other vegetative buildup on roofs, rain gutter, decks and around homes • Maintenance of landscape and control of ladder fuels and forest health on private undeveloped lots • Ongoing education and awareness of Firewise Community concerns through quarterly newsletters sent to each lot owner • Annual Firewise Community awareness meeting with owners features a guest speaker In the applicant's November 10, 2015 submission, responsibilities between the developer, owners association and the Architectural Review Committee are explained. The developer will act as the declarant under the CC&Rs until the development is turned over to the owners association. Under the CC&Rs, a transition committee must be formed for the turn over. Until that time, the developer and the ARC will be solely responsible for implementing the WMP. Thereafter, responsibility for implementation will reside with the owners association per the CC&Rs. F. Provide a specific, mapped evacuation plan for the entire Caldera Springs Resort, including directions for operation of any access gates FINDING: Page 9 of the WMP addresses the evacuation plan and states that the two primary evacuation points will be the existing access drive onto South Century Drive to the west, and the proposed access drive onto Vandevert Road to the south. The annexation property will also connect to an existing secondary evacuation point to the north, which exits into the Sunriver Business Park. All access gates open, or will open, automatically for exiting traffic. Each gate has and will have a Knox Box with keys to override the closure system in the event of a power failure. 247 -15 -000464 -CU - Caldera Springs 66 The applicant's November 10, 2015 submission suggests that the CMP shows evacuation routes in that there are only three routes of egress from the proposed resort. The applicant proposes to provide signage indicating evacuation routes within the developed area. The Hearings Officer concludes that the CMP is a sufficient map, but also that a condition requiring evacuation route signage is warranted. G. Provide a detailed description of when and how residents and guests will be informed of the wildfire plan requirements and the evacuation plan. FINDING: Page 10 of the WMP indicates each lot owner will receive quarterly newsletters detailing Firewise concerns, and that the DRC will hold an annual Firewise awareness meeting with owners. The applicant states that each new homeowner will be provided with this information upon purchase. As noted above, the Design Guidelines for restrictions and treatments within 30 feet of each dwelling will apply at all times. A condition of approval will require evacuation route signage. The Hearings Officer concludes that these measures in combination will be sufficient to address this criterion. Adequate public safety protection will be available through existing fire districts or will be provided onsite according to the specification of the state fire marshal. If the resort is located outside of an existing fire district the developer will provide for staffed structural fire protection services. Adequate public facilities to provide for necessary safety services such as police and fire will be provided on the site to serve the proposed development. FINDING: Fire protection will be provided by the La Pine Rural Fire Protection District, and police protection will be provided by the Deschutes County Sheriff. This criterion is met. J. Streams and drainage. Unless otherwise agreed to in writing by the adjoining property owner(s), existing natural drainages on the site will not be changed in any manner which interferes with drainage patterns on adjoining property. All surface water drainage changes created by the development will be contained on site in a manner which meets all standards of the Oregon State Department of Environmental Quality (DEQ). The erosion control plan for the subject development will meet all standards of ORS 468. FINDING: There are no natural drainages on the annexation property. Topography of the site is generally level, with slopes predominantly between zero and six percent. The native sandy soils on-site along with the significant amount of open space will promote surface infiltration of most stormwater flow. The annexation property will be designed to direct excess stormwater flow to the existing detention basins within the existing Resort. For these reasons, the Stormwater Disposal and Erosion Control Master Plan, submitted as Exhibit L, concludes that post -development stormwater flow rates will not exceed pre - development flow rates, and that all stormwater flow will be contained with the Caldera Spring Destination Resort. This criterion is met. K. Adequate water will be available for all proposed uses at the destination resort, based upon the water study and a proposed water conservation plan. Water use will not reduce the availability 247 -15 -000464 -CU - Caldera Springs 67 of water in the water impact areas identified in the water study considering existing uses and potential development previously approved in the affected area. Water sources shall not include any perched water table. Water shall only be taken from the regional aquifer. Where a perched water table is pierced to access the regional aquifer, the well must be sealed off from the perched water table. FINDING: As discussed above, the existing Sunriver water distribution system will be extended to serve the annexation property. A condition of approval requiring the applicant to provide a signed agreement for water service prior to Final Master Plan approval is warranted. The findings addressing water supply under DCC 18.113 are relevant here and are adopted here by this reference. L. The wastewater disposal plan includes beneficial use to the maximum extent practicable. Approval of the CMP shall be conditioned on applicant's making application to DEQ for a Water Pollution Control Facility (WPCF) permit consistent with such an approved wastewater disposal plan. Approval shall also be conditioned upon applicant's compliance with applicable Oregon Administrative Rules regarding beneficial use of waste water, as determined by DEQ. Applicant shall receive approval of a WPCF permit consistent with this provision prior to applying for approval for its Final Master Plan under DCC 18.113. FINDING: The combined Sewage Collection and Water Systems Master Plan was submitted as Exhibit I. In addition, Exhibit J is a Wastewater Treatment Review, prepared by Vision Engineering. At the present time, the existing Sunriver Environmental treatment plan is covered by an active Water Pollution Control Facility ("WPCF") permit. The existing Sunriver wastewater treatment system is designed and operated to store treated sewage effluent during the winter months and irrigate at agronomic rates during the summer months. Treated effluent is stored in an existing reservoir at the northeast corner of the Sunriver resort during the winter months. The treated effluent has been utilized to irrigate the northerly golf course for many decades. That re -use of treated effluent will continue in the future. In addition, treated effluent is utilized for irrigation of agricultural lands adjacent to the existing storage facility. Staff found, and the Hearings Officer agrees, the wastewater disposal plan includes a beneficial use, meeting this criterion. The following conditions of approval are warranted: A. The applicant shall provide a signed agreement for sewer service prior to Final Master Plan approval. B. The applicant shall receive approval of a WPCF permit that includes the annexation property Prior to Final Master Plan approval, With the proposed conditions of approval, this criterion is met. M. The resort will mitigate any demands it creates on publicly owned recreational facilities on public lands in the surrounding area. 247 -15 -000464 -CU - Caldera Springs 68 FINDING: The primary recreational facilities are developed on-site and will include additional developed recreational facilities, including a pool, resort core areas and developed recreational paths. The applicant argues that while resort users can be expected to use public lands in the vicinity and private recreational facilities such as Mt. Bachelor, there are no publicly owned recreational facilities located on public lands in the surrounding area. The Hearings Officer cannot identify evidence in the record indicating that the annexation will create undue demand on publicly owned recreational facilities on public lands in the surrounding area. This criterion is met. N. Site improvements will be located and designed to avoid or minimize adverse effects of the resort on the surrounding land uses. Measures to accomplish this may include establishment and maintenance of buffers between the resort and adjacent land uses, including natural vegetation and appropriate fences, berms, landscaped areas and similar types of buffers; and setback of structures and other developments from adjacent land uses. FINDING: To the north is the Sunriver Business Park. To the east is the Burlington Northern Railroad, with undeveloped USFS lands east of the railroad. Vandevert Road borders the southern edge of the annexation property, with Vandevert Ranch, a residential subdivision, to the south across Vandevert Road. South Century Drive borders the southwestern portion of the annexation property, with the Crosswater development to the west, across South Century Drive. With the exception of the northwestern secondary access road, all site improvements within the annexation property will observe a minimum setback of 150 feet. Within this setback, the applicant proposes to retain existing tree cover and vegetation. Along the eastern, southern and southwestern edges of the annexation property, the actual buffer from on-site improvement to adjacent lands will be greater due the proposed Wildlife Mitigation Tract to the east, Vandevert Road to the south, and South Century Drive the west. To further mitigate adverse impacts from on-site development, the applicant has proposed to locate developed recreational facilities in the central portion of the annexation property. This criterion is met. O. The resort will be served by an on-site sewage system approved by DEQ and a water system approved by the Oregon State Health Division except where connection to an existing public sewer or water system is allowed by the County Comprehensive Plan, such service will be provided to the resort. FINDING: As discussed above, the applicant proposes to connect to existing public sewer and water systems. P. The destination resort will not alter the character of the surrounding area in a manner that substantially limits, impairs or prevents permitted or conditional uses of surrounding properties. FINDING: As discussed above, the proposed resort will not limit the types of forestry uses permitted on the USFS property to the east, including open space preservation, recreational trails, wildlife habitat, and low intensity forest maintenance activities. The proposal includes elements such as low intensity recreation, eating establishments, and residential uses that are similar and complementary to existing uses at the adjacent Crosswater development, Sunriver Business Park, existing Caldera Springs, and the 247 -15 -000464 -CU - Caldera Springs 69 Sunriver Resort. There is no evidence to suggest that development of the annexation property will have any impact on the types of uses permitted both conditionally and as outright permitted uses on surrounding properties. This criterion is met. Q. Commercial, cultural, entertainment or accessory uses provided as part of the destination resort will be contained within the development and will not be oriented to public highways adjacent to the property. Commercial, cultural and entertainment uses allowed within the destination resort will be incidental to the resort itself. As such, these ancillary uses will be permitted only at a scale suited to serve visitors to the resort. The commercial uses permitted in the destination resort will be limited in type, location, number, dimensions and scale (both individually and cumulatively) to that necessary to serve the needs of resort visitors. A commercial use is necessary to serve the needs of visitors if: 1. Its primary purpose is to provide goods or services that are typically provided to overnight or other short term visitors to the resort, or the use is necessary for operation, maintenance or promotion of the destination resort; and 2. The use is oriented to the resort and is located away from or screened from highways or other major through roadways. FINDING: The commercial, cultural, entertainment and accessory uses provided as part of the existing resort have been approved, are all internal to the resort, and satisfy this standard. The applicant states that future commercial, cultural, entertainment and accessory uses will be similarly located in the one or more resort core areas proposed for the annexation property. The proposed core resort areas are all located internal to the annexation property, and not oriented to any adjacent public roadways or highways. This criterion is met. R. A plan exists to ensure a transfer of common areas, facilities such as sewer, water, streets and responsibility for police and fire protection to owners' associations or similar groups if contemplated. If such transfer is not contemplated, the owner or responsible party shall be clearly designated. Adequate open space, facility maintenance and police and fire protection shall be ensured in perpetuity in a manner acceptable to the County. FINDING: The record shows that the CCRs for the property provide the mechanism for the eventual transfer of common areas, facilities such as sewer, water, streets to the homeowners' association. Fire and police protection will be provided by public agencies, so no transfer mechanism is required. This criterion is met. S. Temporary structures will not be allowed unless approved as part of the CMP. Temporary structures will not be allowed for more than 18 months and will be subject to all use and site plan standards of DCC Title 18. FINDING: The applicant states that no temporary structures are planned for the annexation property. 247 -15 -000464 -CU - Caldera Springs 70 T. The open space management plan is sufficient to protect in perpetuity identified open space values. FINDNG: The Open Space Management Plan, submitted as Exhibit F, details open space elements including natural common areas, lakes, ponds and streams, and pocket parks and picnic areas. This plan indicates that the natural common areas, pocket parks and small picnic areas will be dedicated to the homeowners association, with the association responsible for operation and maintenance. The Open Space Management Plan states the draft CCRs, submitted as Exhibit D, reference the dedication of common areas and related restrictions or opportunities of use. 5. Section18.113.120 — Conservation Easements. FINDING: At both the public hearings and in written testimony COLW argued that the subject property is a tract of land that contains a Goal 5 resource site, and for that reason must be placed in a conservation easement under DCC 18.113.120. COLW states that 80% of the property lies in designated deer migration range which qualifies it for this code provision. The applicant counters that the provision is not applicable because it was not implemented for Caldera Springs, and that the "resource" the County has elected to protect is not the entire deer migration range, but a smaller subset of those areas — "Deer Migration Priority Areas." The applicant provides sections of Deschutes County Ordinance No. 2001-018 which state that destination resorts should be limited to areas outside the Deer Migration Priority Areas. Staff provided additional research in a December 22, 2105 memo. The memo explains the distinction between the Bend/La Pine Deer Migration Corridor and Deer Migration Priority Areas. While true that 80% of the subject property is within the migration corridor, the County has elected to allow destination resorts in those areas, but not within Deer Migration Priority Areas. The record is not in dispute about where the proposed development is to be located. The proposal is located outside any designated Deer Migration Priority Area. As the findings above demonstrate, the portion within the migration corridor are subject to both the destination resort standards and the County's conditional use criteria for the WA combining zone. A closer look at Ordinance No. 2001-018 (Exhibit 2 of applicant's December 22, 2015 letter) shows that the County made a decision to refine the comprehensive plan with respect to Goal 5 resources. The findings in support of the ordinance state that the amendment "identify land within the corridor but outside the Deer Migration Priority Area as appropriate for destination resort development...." if those lands can otherwise meet DCC 18.113. (See Findings, Section 13). This indicates a Goal 5 decision to "limit" uses within the resource area and prohibit conflicts in others. Since no part of the proposed development will occur in the Deer Migration Priority Area, as it is reserved as a migration corridor, there is no purpose in also imposing a conservation easement upon that portion of the subject property. The Hearings Officer concludes that DCC 18.113.120 is inapplicable in this instance. 247 -15 -000464 -CU - Caldera Springs 71 Dwelling Density — Since this section of the decision deals with restrictions in the County's deer migration corridor, it is appropriate to address COLW's arguments regarding dwelling density. COLW argues that Deschutes County Ordinance No. 92-040 requires dwelling density to be limited in order to allow 80% of the development area to be left as open space. COLW does not identify the location of the alleged requirement within the ordinance. The applicant counters that COLW is misreading the ordinance and that any dwelling density limits imposed by Ordinance 92-040 apply only in "deer winter range" and not to deer migration corridors. The applicant also argues that the density limitations only apply in the rural residential zone or multiple use agriculture zones. After reviewing Ordinance 92-040, the Hearings Officer agrees that the dwelling density provisions only apply to "deer winter range" and not to deer migration areas. The explanation provided in the applicant's December 29, 2015 letter is sufficient to rebut COLW's argument. F. CHAPTER 18.128, CONDITIONAL USES 1. Section 18.128.015. General Standards Governing Conditional Uses. Except for those conditional uses permitting individual single family dwellings, conditional uses shall comply with the following standards in addition to the standards of the zone in which the conditional use is located and any other applicable standards of the chapter: FINDING: Although the proposed annexation will ultimately include single-family dwellings, the subject conditional use permit does not request an individual single-family dwelling. For this reason, the County's general conditional use criteria apply. Those criteria were adequately addressed above. A. The site under consideration shall be determined to be suitable for the proposed use based on the following factors: 1. Site, design and operating characteristics of the use; 2. Adequacy of transportation access to the site; and 3. The natural and physical features of the site, including, but not limited to, general topography, natural hazards and natural resource values. FINDING: In her decision on the original Caldera Springs approval, the Hearings Officer made the following findings with respect to these criteria, "This section of Chapter 18.128 includes general standards for the permitting of a conditional use. The referenced general standards relate to suitability, transportation, site characteristics, and compatibility. The applicant has addressed these general standards in its application under the provisions of DCC Chapter 18.113. The Hearings Officer concludes the findings addressing DCC Chapter 18.113 are adequate to assure that, in this case, DCC 18.125.015(A) is satisfied as well." The Hearings Officer agrees with this conclusion and adopts the relevant findings from DCC18.113 here by this reference. 247 -15 -000464 -CU - Caldera Springs 72 B. The proposed use shall be compatible with existing and projected uses on surrounding properties based on the factors listed in DCC 18.128.015(A). 1. Site, design and operating characteristics of the use; 2. Adequacy of transportation access to the site; and 3. The natural and physical features of the site, including, but not limited to, general topography, natural hazards and natural resource values. FINDING: In her decision on the original Caldera Springs approval, the Hearings Officer made the following findings with respect to these criteria, "This section of Chapter 18.128 includes general standards for the permitting of a conditional use. The referenced general standards relate to suitability, transportation, site characteristics, and compatibility. The applicant has addressed these general standards in its application under the provisions of DCC Chapter 18.113. The Hearings Officer concludes the findings addressing DCC Chapter 18.113 are adequate to assure that, in this case, DCC 18.125.015(A) is satisfied as well." The Hearings Officer agrees with this conclusion and adopts the relevant findings from DCC18.113 here by this reference. IV. CONCLUSION: Based on the above Findings of Fact and Conclusions of Law, this application is APPROVED subject to the following conditions: 1. Approval is based upon the application, site plan, specifications, and supporting documentation submitted by the applicant. Any substantial change in this approved use will require review through a new land use application. 2. The resort access onto Vandevert Road shall be limited to construction -related traffic during development of roads and infrastructure prior to final plat approval, and thereafter a gated emergency -only access. Said access shall be gated until Vandevert Road is disconnected from Highway 97 or the Spring River Road/Century Drive roundabout is constructed. PRIOR TO FINAL MASTER PLAN APPROVAL 3. The developer shall provide to the Planning Division signed agreements for sewer and water service. 4. The developer shall submit to the Planning Division proof of a Wastewater Pollution Control Facility permit that includes the annexation property. PRIOR TO FINAL PLAT 5. The approach apron to Vandevert Road must be paved to reduce the amount of gravel and debris tracked onto Vandevert Road from the property. 247 -15 -000464 -CU - Caldera Springs 73 6. Before approval of each final plat, all the following shall be provided: A. Documentation demonstrating compliance with the 2.5 to 1 ratio as defined in DCC 18.113.060(D)(2); B. Documentation on all individually -owned residential units counted as overnight lodging, including all of the following: 1) Designation on the plat of any individually -owned units that are going to be counted as overnight lodging; 2) Deed restrictions requiring the individually -owned residential units designated as overnight lodging units to be available for rental at least 38 weeks each year through a central reservation and check-in service operated by the resort or by a real estate property manager, as defined in ORS 696.010; 3) An irrevocable provision in the resort Conditions, Covenants and Restrictions ("CC&Rs) requiring the individually -owned residential units designated as overnight lodging units to be available for rental at least 38 weeks each year through a central reservation and check-in service operated by the resort or by a real estate property manager, as defined in ORS 696.010; 4) A provision in the resort CC&R's that all property owners within the resort recognize that failure to meet the conditions in DCC 18.113.060(L)(6)(b)(iii) is a violation of Deschutes County Code and subject to code enforcement proceedings by the County; 5) Inclusion of language in any rental contract between the owner of an individually -owned residential unit designated as an overnight lodging unit and any central reservation and check in service or real estate property manager requiring that such unit be available for rental at least 38 weeks each year through a central reservation and check-in service operated by the resort or by a real estate property manager, as defined in ORS 696.010, and that failure to meet the conditions in DCC 18.113.060(L)(6)(b)(v) is a violation of Deschutes County Code and subject to code enforcement proceedings by the County. AT ALL TIMES 7. No new or expanded industrial, commercial or recreational use shall project lighting directly onto an existing runway or taxiway or into existing airport approach surfaces except where necessary for safe and convenient air travel. Lighting for these uses shall incorporate shielding in their designs to reflect light away from airport approach surfaces. No use shall imitate airport lighting or impede the ability of pilots to distinguish between airport lighting and other lighting. 8. Within the portions of the property subject to a Landscape Management Combining Zone, the following conditions of approval apply: A. Except as necessary for construction of access roads, building pads, septic drainfields, public utility easements, parking areas, etc., the existing tree and shrub cover screening the development from the designated road, river, or stream shall be retained. This provision does not prohibit maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act, or agricultural use of the land. Removal of vegetation in 247 -15 -000464 -CU - Caldera Springs 74 accordance with the approved Wildfire Management Plan is allowed as removal of hazardous vegetation. B. All new structures and additions to existing structures shall finished in muted earth tones that blend with and reduce contrast with the surrounding vegetation and landscape of the building site. C. No large areas, including roofs, shall be finished with white, bright or reflective materials. Roofing, including metal roofing, shall be nonreflective and of a color which blends with the surrounding vegetation and landscape. D. Except as necessary to accomplish the goals of the approved Wildfire Management Plan and in locations where the developer has installed landscaped berms, the developer shall retain of existing vegetation, trees and topographic features that will reduce visual impact of structures as seen from Highway 97, South Century Drive and Vandevert Road. E. Structures shall not exceed 30 feet in height measured from the natural grade on the side(s) facing Highway 97, South Century Drive and Vandevert Road. F. New exterior lighting, including security lighting, shall be sited and shielded so that it is directed downward and is not directly visible from Highway 97, South Century Drive and Vandevert Road. G. No signs or other forms of outdoor advertising that are visible from a designated landscape management river or stream shall be permitted. Property protection signs (No Trespassing, No Hunting, etc.,) are permitted. 9. For those portions of the property within a Wildlife Area Combining Zone, the developer shall comply with the fence standards pursuant to DCC 18.88.070. 10. Prior to development of each phase of the resort expansion, the developer shall submit to the Planning Division an erosion control plan for that phase. 11. The resort as a whole shall maintain a maximum ratio of single-family dwelling units to overnight accommodation units of 2.5:1. 12. Overnight Lodging Units (OLUs) shall be made available for overnight rental use by the general public for at least 38 weeks per calendar year through one or more central reservation and check-in services operated by the destination resort or by a real estate manager, as defined in ORS 696.010. 13. Except as otherwise specified herein, all development (including structures, site obscuring fences of over three feet in height and changes to the natural topography of the land) shall be setback from exterior property lines as follows: A. Three hundred fifty feet for commercial development including all associated parking areas; B. Two hundred fifty feet for multi -family development and visitor oriented accommodations (except for single family residences) including all associated parking areas; C. One hundred fifty feet for above grade development other than that listed in DCC 18.113.060(G)(2)(a)(i) and (ii), including any installed landscaped berms; D. One hundred feet for roads; E. Fifty feet for golf courses; and F. Fifty feet for jogging trails and bike paths where they abut private developed lots and no setback for where they abut public roads and public lands. 247 -15 -000464 -CU - Caldera Springs 75 G. Notwithstanding Condition of Approval No. 11(C), above grade development other than that listed in DCC 18.113.060(G)(2)(a)(i) and (ii) shall be set back 250 feet in circumstances where state highways coincide with exterior property lines. H. The setbacks identified in Condition of Approval No. 11 shall not apply to entry roadways and signs. 14. The resort shall compile, and maintain, in perpetuity, a registry of all overnight lodging units. A. The list shall identify each individually -owned unit that is counted as overnight lodging. B. At all times, at least one entity shall be responsible for maintaining the registry and fulfilling the reporting requirements of DCC 18.113.060(L)(2) through (6). C. Initially, the resort management shall be responsible for compiling and maintaining the registry. D. As a resort develops, the developer shall transfer responsibility for maintaining the registry to the homeowner association(s). The terms and timing of this transfer shall be specified in the Conditions, Covenants & Restrictions (CC&Rs). E. Resort management shall notify the County prior to assigning the registry to a homeowner association. F. Each resort shall maintain records documenting its rental program related to overnight lodging units at a convenient location in Deschutes County, with those records accessible to the County upon 72 hour notice from the County. G. As used in this section, "resort management" includes, but is not limited to, the applicant and the applicant's heirs, successors in interest, assignees other than a home owners association. 15. An annual report shall be submitted to the Planning Division by the resort management or home owners association(s) each February 1, documenting all of the following as of December 31 of the previous year: A. The minimum of 150 permanent units of overnight lodging have been constructed or that the resort is not yet required to have constructed the 150 units; B. The number of individually -owned residential platted lots and the number of overnight -lodging units; C. The ratio between the individually -owned residential platted lots and the overnight lodging units; D. The following information on each individually -owned residential unit counted as overnight lodging. E. Who the owner or owners have been over the last year; F. How many nights out of the year the unit was available for rent; G. How many nights out of the year the unit was rented out as an overnight lodging facility under DCC 18.113; H. Documentation showing that these units were available for rental as required. This information shall be public record subject to ORS 192.502(17). 16. To facilitate rental to the general public of the overnight lodging units, the resort shall set up and maintain in perpetuity a telephone reservation system. 17. The resort shall ensure that any outside property managers renting required overnight lodging units shall be required to cooperate with the provisions of this code and to annually provide rental information on any required overnight lodging units they represent to the central office as described in DCC 18.113.060(L)(2) and (3). 247 -15 -000464 -CU - Caldera Springs 76 18. The resort shall comply with the approved Wildlife Report. 19. Each audit report required by the approved Wildlife Report shall determine the timing of the subsequent audit report, with an audit report required at least every five years. Each audit report shall be submitted to the Planning Division. 20. The Covenants, Conditions and Restrictions (CCRs) and/or Bylaws for the resort shall include a specific provision for funding of the Wildlife Report requirements and retention of a professional biologist. 21. The resort shall comply with the approved Wildfire Management Plan. 22. The homeowners association shall submit proof of Firewise Community recognition to the Planning Division annually from the date of first recognition. This requirement shall be included in the CCRs for the homeowners association. 23. The homeowners association and/or the Caldera Springs Design Review Committee shall retain a wildland fire consultant to assess ladder fuel buildup along with any necessary thinning, spot treatment of downed fuels and mowing. Prior to any fuels treatment, the wildland fire consultant shall coordinate with the retained professional biologist to ensure treatments do not compromise the goals of the Wildlife Report. 24. The Covenants, Conditions and Restrictions (CCRs) and/or Bylaws for the resort shall include a specific provision for funding of the Wildfire Management Plan requirements and retention of a wildland fire consultant. Kenneth D. Helm, Hearings Officer Dated this 15th day of April, 2016. Mailed this 15th day of April, 2016. A DECISION BY THE HEARINGS OFFICER BECOMES FINAL TWELVE (12) DAYS AFTER THE DATE OF MAILING, UNLESS APPEALED BY A PARTY OF INTEREST. 247 -15 -000464 -CU - Caldera Springs 77 EXHIBIT C Larry Brown (DEQ) email September 28, 2018 From: BROWN Larry[mailto:Larry.BROWN@state.or.us] Sent: Tuesday, September 18, 2018 11:28 AM To: Runner, Steve <srunnerPsunriver-resort.com> Subject: Treatment facility upgrade being required Steve: As we discussed, DEQ is requiring that the Sunriver Environmental, LLC wastewater treatment facility be upgraded in order to meet Class A effluent. Additionally, Sunriver Environmental LLC is now on my permitting schedule. However, knowing the costs involved and the time which is needed to implement such a project you are requesting 1 year for the design and budgeting phase and 2 years for implementation to be taken into consideration when proceeding with the permit renewal. DEQ is acceptable to this request. If you have any questions — give me a call. Sincerely, Lawrence (Larry) Brown REHS Environmental Health Specialist DEQ Eastern Region - Water Quality Land Application 475 NE Bellevue Drive - Suite 110 Bend, OR 97701 Phone: (541) 633-2025 Fax: (541) 388-8283 {00831443;1} 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 31, 2018 DATE: October 24, 2018 FROM: Tanya Saltzman, Community Development, TITLE OF AGENDA ITEM: Deliberations: Marijuana Text Amendments - Medical Discussion of potential directions for the Board to consider concerning existing medical marijuana grow sites. MEMORANDUM TO: Deschutes County Board of Commissioners FROM: Tanya Saltzman, Associate Planner DATE: October 24, 2018 SUBJECT: Marijuana Text Amendments - Medical Marijuana Deliberations 1. OVERVIEW Throughout the development process for text amendments refining the regulation and enforcement of recreational marijuana on rural lands in Deschutes County, the issue of medical marijuana compliance has consistently arisen. Throughout oughout the public hearing, both the public and the Board of County Commissioners (Board) discussed the complexities governing medical marijuana grows and the County's ability to regulate and enforce these sites. While the proposed text amendments seek to strengthen requirements regarding odor, noise, separation distances, etc. for new recreational marijuana production going forward, this does little to help the County identify existing medical marijuana grows—both legal and illegal—which vastly outnumber recreational production sites in Deschutes County. This memorandum summarizes the current regulations regarding medical marijuana and provides the Board with several directions to explore regarding its enforcement. II. CURRENT REGULATIONS AND ENFORCEMENT PROCESSES 1. Current Regulations Current regulations require medical grow sites registered with the Oregon Health Authority (OHA) prior to June 1, 2016 to have complied with lighting standards (DCC 18.116.340(B)) by September 2016, and with odor, noise, screening and fencing, water, security cameras, and secure waste disposal (DCC 18.116.340(C)) by December 15, 2016. Medical grow sites registered by OHA on or after June 1, 2016 must comply with the standards set forth in DCC 18.116.340(D).1 However, while 1 To date, Deschutes County has not processed a medical grow site registered with OHA on or after June 1, 2016. the code requires the aforementioned standards are met, due to privacy restrictions this is enforceable by the County only if a complaint is received to a specific address. The Oregon Health Authority is not permitted to provide the County with a list of all licensed medical grow sites. As stated by Carole Yann, OHA Section Manager in a letter to the Board dated June 12, 2018: • Under OHA's current understanding of Oregon law, it is not permitted to provide a list of medical marijuana grow sites. ORS 475B.879, 475B.882, 475B.888 and 475B.892. • OHA can verify the registration status of a particular medical marijuana grow site address to designated representatives of counties and cities under ORS 475B.879, using a telephone hotline. OHA may also verify grow site addresses for law enforcement officers using the dedicated phone number and Law Enforcement Data System. 2. Enforcement Currently, if a complaint is received about a suspected medical grow site, Deschutes County will determine if the property has complied with odor, noise, water, and other provisions of DCC 18.116.340(B).2 The County will also engage OHA to confirm if the property is registered as a licensed medical marijuana grow operation. If it is not, the case is immediately referred to law enforcement. III. MEDICAL MARIJUANA OPTIONS 1. Adopt Nonconforming Use Verification Requirement As noted in recent memoranda, a nonconforming use verification is required under DCC 18.120 to "maintain" a use that was previously permitted and is no longer permitted under state or county law—it is essentially the "grandfathering" of a use that was, at one time, legal. If the Board expressly requires nonconforming use verifications by a certain time period for lawfully established medical grow sites, the property would then be subject to DCC 18.116.340, Marijuana Production Registered by the Oregon Health Authority when the location is disclosed. If a property owner chose to ignore the new law and did not apply for a nonconforming use verification during the prescribed time period to be determined by the Board, he or she would risk code enforcement should the location of the site be revealed, whether by an individual complaint or a larger -scale change to OHA's privacy policy. It is important to note that the nonconforming use verification option may not exist without unintended consequences. Requiring a non -conforming use verification by a specific deadline is unprecedented in Deschutes County. No other non -conforming use is subject to such a deadline. This option may be legally vulnerable if the County requires it for property owners who are not undergoing any changes to the property—the standard trigger for a non -conforming use verification. Similarly, requiring lawful medical marijuana growers to apply for it within a certain timeframe (for instance, 90 days) may be construed as arbitrary since, as mentioned above, such a timeframe does not exist for any other nonconforming use. 2 https://weblink.deschutes.org/public/O/doc/90426/Pagel.aspx Page 2 of 3 Lastly, it is undetermined if requiring a nonconforming use verification will actually serve to bring medical grows into compliance to a greater degree than the current code, as code enforcement would largely still be complaint -driven. Suggested language: DCC 18.116.340 new (B). All marijuana production registered by OHA prior to June 1, 2016 shall be required to apply for a Verification of Nonconforming Use as set forth in DCC 18.120.010(B) and (F). Failure for a lawful nonconforming marijuana production site to obtain a Verification of Nonconforming Use within [TIME] of the effective date of Ordinance 2018-0xx shall deem the nonconforming use unlawful. 2. Anticipate Changes to Location Disclosure Law ORS 475B.541(a) states that the address of a premises for which an OHA license has been issued is exempt from public disclosure. If a change is made at the State level permitting the bulk disclosure of medical marijuana grow sites by OHA to Deschutes County, this would present an opportunity for the County to require those sites to be subject to annual inspection requirements, similar to those pertaining to recreational marijuana production, to ensure they are meeting the requirements of DCC 18.116.340(B). This option entails waiting for changes to the law that may or may not occur in the future; however, it presents less legal risk than a nonconforming use verification requirement. 3. Advocate for Legislative Changes to OHA Disclosure In the absence of immediate statewide changes to the laws governing the disclosure of medical marijuana grow site addresses, the Board could opt to continue to engage the Legislature regarding the matter. As noted above, correspondence between OHA and the County has already occurred regarding the disclosure of medical marijuana grow site addresses. It is difficult to determine if or when changes may occur, but by continuing to engage the Legislature, the County would be making its concerns heard at the State level. If legislative changes did occur, the Board could proceed with inspection requirements as discussed in item 2 above. IV. NEXT STEPS Staff seeks Board direction on the above options. If the Board chooses to pursue Option 1, Adopt Nonconforming Use Verification Requirement, staff will return to the Board on a date to be determined with an ordinance containing the proposed text amendments. Page 3 of 3