2019-12-Minutes for Meeting December 05,2018 Recorded 1/10/2019Recorded in Deschutes County CJ2019-12
Nancy Blankenship, County Clerk
Commissioners' Journal 01 /10/2019 11:55:24 AM
L �G
��, vz O�j 3 O • <
�t BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541) 388-6570
11111111111111111111111111111
2019-12
FOR RECORDING STAMP ONLY
9:00 AM WEDNESDAY, December 5, 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.igm2.com/Citizens/Default.aspx
CALL TO ORDER: Chair DeBone called the meeting to order at 9:00 am
PLEDGE OF ALLEGIANCE:
CITIZEN INPUT: None offered
CONSENT AGENDA: Before the Board was Consideration of Approval of the
Consent Agenda.
HENDERSON: Move approval
BAN EY: Second
BOCC BUSINESS MEETING DECEMBER 5, 2018 PAGE 1 OF 5
VOTE: HENDERSON:
BAN EY:
DEBONE:
Consent Agenda Items:
Yes
Yes
Chair votes yes. Motion Carried
1. Consideration of Board Signature of Letters Reappointing Frank Mengel to
the Newberry Estates Special Road District
2. Consideration of Board Signature of Letter Reappointing William Anderson to
the Deschutes County Budget Committees
3. Approval of Minutes of the November 5, 2018 Work Session
ACTION ITEMS:
4. Consideration to Authorize the County Administrator to Convert an
Economic Development Loan Made to Composite Approach
Judith Ure, Management Analyst along with Jon Stark of Redmond Economic
Development and Brian Harris and Seth Meyers of Composite Approach
presented this item.
BAN EY:
HENDERSON:
VOTE: BANEY:
Move approval
Second
HENDERSON:
DEBONE:
Yes
Yes
Chair votes yes. Motion Carried
S. Consideration of Board Signature of Document No. 2018-687, Decision
on (Eagle Air Estates Paved Taxiway) Overturning a Hearings Officer's
BOCC BUSINESS MEETING DECEMBER 5, 2018 PAGE 2 OF 5
Decision that Eagle Air Estates Paved Taxiway Violated Open Space
Requirements
Peter Russell, Senior Transportation Planner presented the item for
consideration. Commissioner Henderson suggested one revision.
HENDERSON: Move approval with amendment
BAN EY: Second
Commissioner DeBone noted he supports the Hearings Officer's Decision
and does not support this Decision.
VOTE: HENDERSON: Yes
BAN EY: Yes
DEBONE: Chair votes no. Motion Carried
6. Consideration of Board Signature of Document No. 2018-694, an
Approval of a Conditional Use Permit and Site Plan Review for a Church
at 21420 Stevens Road
Cynthia Smidt, Community Development Department presented this item.
This item will be reviewed later in the meeting.
7. PUBLIC HEARING: Consideration of Board Signature on Order No. 2018-
074, Approving Rockridge Park Annexation to Bend Park & Recreation
District
Dave Doyle, Legal Counsel reviewed the Order and annexation. Cason Powel
and Sarah Bodo of the Bend Park & Recreation District reviewed the plan of
the subject property. Commissioner DeBone opened the public hearing and
hearing no testimony closed the public hearing.
BOCC BUSINESS MEETING DECEMBER 5, 2018 PAGE 3 OF 5
BAN EY:
HENDERSON:
VOTE: BAN EY
Move approval
Second
HENDERSON:
DEBONE:
Yes
Yes
Chair votes yes. Motion Carried
8. DELIBERATIONS: Anderson Marijuana Production Appeal, 63775
Diamond Forge Road
Matt Martin, Community Development Department presented this item. The
Board reviewed the issues of concern in considering the application. Mr.
Martin will draft a final decisions document.
Item #6 continued discussions: Consideration of Board Signature of
Document No. 2018-694, an Approval of a Conditional Use Permit and
Site Plan Review for a Church at 21420 Stevens Road
Cynthia Smidt, Community Development Department presented this item.
Adam Smith, Assistant Legal Counsel commented on the draft decision. The
decision was reviewed.
RECESS: At the time of 10:14 a.m. the Board took a recess for additional
materials and the meeting was reconvened at 10:31 a.m.
Ms. Smidt reviewed the revisions made to the recent draft decision. The
Board made recommendations for additional revisions. Ms. Smidt will bring
the revised decision to the Board for Monday's business meeting.
BOCC BUSINESS MEETING DECEMBER 5, 2018 PAGE 4 OF 5
OTHER ITEMS:
Commissioner Henderson inquired on the status of the Big Sky Park decision. Ms.
Smidt reported the decision will be presented to the Board on December 12.
Being no further items to come before the Board, the meeting was adjourned at 11:54 a.m.
DATED this Day ofy'. 2018 for the Deschutes County Board of
Commissioners.
ANTHONY DEBONE,CHAIR
A rt r\
PHILIP G® , VICE CHAIR
TAMMY EYe (��MISSIONER
BOCC BUSINESS MEETING DECEMBER 5, 2018 PAGE 5 OF 5
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - www.deschutes.org
BUSINESS MEETINGAGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
9:00 AM, WEDNESDAY, DECEMBER 5, 2018
Barnes Sawyer Rooms - Deschutes Services Center - 1300 NW Wall Street - Bend
This meeting is open to the public. To watch it online, visit www.deschutes.org/meetins. Business Meetings are
usually streamed live online and video recorded.
Pursuant to ORS 192.640, this agenda includes a list of the main topics that are anticipated to be considered or
discussed. This notice does not limit the Board's ability to address other topics.
Meetings are subject to cancellation without notice.
CALL TO ORDER
PLEDGE OF ALLEGIANCE
CITIZEN INPUT
This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues
that are not already on the agenda. Please complete a sign-up card (provided), and give the card to the
Recording Secretary. Use the microphone and clearly state your name when the Board Chair calls on you to
speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing not
being conducted as a part of this meeting will NOT be included in the official record of that hearing.
If you offer or display to the Board any written documents, photographs or other printed matter as part of your
testimony during a public hearing, please be advised that staff is required to retain those documents as part of the
permanent record of that hearing.
CONSENT AGENDA
1. Consideration of Board Signature of Letters ReAppointing Frank Mengel to the
Newberry Estates Special Road District
Board of Commissioners Business Meeting Agenda Wednesday, December 5, 2018 Page 1
of 3
2. Consideration of Board Signature of Letter ReAppointing William Anderson to the
Deschutes County Budget Committees
3. Approval of Minutes of the November 5, 2018 Work Session
ACTION ITEMS
4. Consideration to Authorize the County Administrator to Convert an Economic
Development Loan Made to Composite Approach -Judith Ure, Management Analyst
5. Consideration of Board Signature of Document No. 2018-687, Decision on (Eagle
Air Estates Paved Taxiway) Overturning a Hearings Officer's Decision that Eagle Air
Estates Paved Taxiway Violated Open Space Requirements - Peter Russell, Senior
Planner
6. Consideration of Board Signature of Document No. 2018-694, an Approval of a
Conditional Use Permit and Site Plan Review for a Church at 21420 Stevens Road -
Cynthia Smidt, Associate Planner
7. PUBLIC HEARING: Consideration of Board Signature on Order No. 2018-074
Approving Rockridge Park Annexation to Bend Park & Recreation District - David
Doyle, Legal Counsel
8. DELIBERATIONS: Anderson Marijuana Production Appeal, 63775 Diamond Forge
Road, Bend - Matthew Martin, 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
Board of Commissioners Business Meeting Agenda Wednesday, December 5, 2018 Page 2
of 3
Deschutes County encourages persons with disabilities to participate in all programs and activities. To
request this information in an alternate format please call (541) 617-4747.
FUTURE MEETINGS:
Additional meeting dates available at www.deschutes.org/meetingcolendor
Meeting dates and times are subject to change. If you have question, please call (541) 388-6572.
Board of Commissioners Business Meeting Agenda Wednesday, December 5, 2018 Page 3
of 3
a " Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Business Meeting of December 5, 2018
DATE: November 28, 2018
FROM: Judith Ure, Administrative Services, 541-330-4627
TITLE OF AGENDA ITEM:
Consideration to Authorize the County Administrator to Convert an Economic
Development Loan Made to Composite Approach
RECOMMENDATION & ACTION REQUESTED:
Authorize the County Administrator to convert a $16,000 loan made to Composite
Approach to a grant.
CONTRACTOR: Composite Approach
AGREEMENT TIMEFRAME: April 17, 2017 to December 31, 2019
BACKGROUND AND POLICY IMPLICATIONS:
The Deschutes County Economic Development Loan Program was initiated to encourage and
assist companies seeking to relocate to and/or create new jobs within Deschutes County. To
receive a loan, companies must agree to create a specific number of family -wage jobs within a
defined period, then maintain this level of employment for an additional set period of time. On
April 17, 2017, Composite Approach entered into an agreement with the County for a loan in
the amount of $16,000 with terms that included hiring eight (8) new full-time employees in
Deschutes County on or before December 31, 2018 at an average annual salary of $42,000,
and maintaining these positions for a twelve-month period beyond the date they were filled or
by December 31, 2019, whichever date occurred first. As certified by Economic Development
for Central Oregon (EDCO) and Redmond Economic Development, Inc. (REDI), Composite
Approach has met these terms and, in accordance with the agreement, is eligible to have the
loan converted to a grant.
FISCAL IMPLICATIONS: The loan was paid from the Video Lottery Fund in FY 2016-17.
ATTENDANCE: Judith Ure, Management Analyst; Jon Stark, REDI, and representative(s) of
Composite Approach.
DESCHUTES COUNTY
,' --- ECONOMIC DEVELOPMENT LOAN PROGRAM
AGREEMENT WITH COMPOSITE APPROACH
This Economic Development Loan Agreement ("Agreement") is entered into:
BETWEEN: Deschutes County (hereinafter referred to as "County')
PO Box 6005
Bend, OR -97708-6005
541-330-4627
AND: Composite Approach
2241 SW 1" St.
Redmond, OR 97756
RECITALS
WHEREAS, County finds that the program set forth in this Agreement will promote state and local
economic activity by creating new jobs and investment; and
WHEREAS, Company wishes to expand its existing equipment and business operations within
Redmond, Oregon by increasing employment and investing in equipment and building
improvements; and
WHEREAS, the said expansion in Redmond, Oregon will create at least eight (8) new full-time,
family wage jobs between December 31, 2016 and December 31, 2018_for total employment by
Company of twenty=nine (29) jobs; and
WHEREAS, once filled, the new full-time jobs will be maintained for an additional consecutive
12 -month period to occur on or before December 31, 2019; and
WHEREAS, County desires to promote the expansion of Company's facility by loaning funds in
the amount of $16,000 for expenses related to job creation and such loan will later be converted to
a grant upon the condition that Company satisfy certain requirements; and
WHEREAS, County has engaged Economic Development for Central Oregon (EDCO) to assist in
administering and implementing the loan;
NOW, THEREFORE, in consideration of the mutual benefits and promises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree to as follows:
SECTION 1
DEFINITIONS
Section 1.1 Dollars and $ shall mean lawful money of the United States of America.
Section 1.2 Loan shall mean funds loaned by County to Company as provided under Section 3.
Section 1.3 Project shall mean expansion of Company employment in Deschutes County,
Oregon.
Section 1.4 Full -Time Employee shall mean any employee who has been hired with the
expectation that the job will last for at least one (1) year and who will work at least
forty (40) hours per week or the equivalent of 2,080 hours per year.
SECTION 2
TERM
This Agreement shall be effective as of the date of execution by all parties and continue until the
loan is paid in full or the loan is converted to a grant as provided in Section 3.3 below.
SECTION 3
LOAN
Section 3.1 Loan
County agrees to loan Company the surn of $16,000 no later than 30 days following delivery of
this signed Agreement to County.
Section 3.2 Loan Purpose and Representations of the Company
`i'he purpose of the loan is to carry out the project, and for no other purposes. Company represents
and warrants that it will diligently pursue and complete the following:
3.2.1 Company will employ at least eight (8) additional full time employees between
December 31, 2016 and December 31, 2018 for a total of twenty-nine (29) full-time
employees,
3.2.2 Company will maintain these new positions from the date all are filled for an
additional consecutive 12 -month period to occur on or before December 31, 2019.
3.2.3 Wages for the new positions will average $42,000, excluding commissions, per
annum.
3.2.4 Company will submit quarterly and annual progress reports to EDCO with
documentation far job creation, capital investment relating to new facilities, and
equipment associated with the project.
3.2.5 Company shall comply with all applicable federal, state, regional, and local laws,
regulations, and ordinances.
3.2.6 Company shall timely pay all Deschutes County real and personal property tax when
due and shall satisfy all delinquent property tax accounts in full.
Section 3.3 Loan Repayment or Conversion to Grant
3.3.1 Unless the loan is converted to a grant as provided below; Company agrees to pay
to the order of County the full amount of the loan as well as interest at the rate of
8% per armurn beginning from the date County releases fiinds to Company until the
earlier of: (a) the occurrence of an event of default, as defined below, or (b)
December 31, 2019.
3.3.2 County agrees to convert the loan to a grant that does not need to be repaid, if and
when Colony determines in its sole discretion that Company has satisfied all of the
obligations in Section 3.2 and its other obligations under this Agreement. Such
conversion shall only be effective upon written verification by the County
Administrator that the loan has been converted to a grant.
3.3.3 County may, in its sole discretion, convert a portion of the loan to a grant if all of
the obligations under Section 3.2 and this Agreement have been fulfilled to the
reasonable satisfaction of Colony. In the event of such partial conversion of the
loan, the loan shall continue to be payable on a pro -rated basis in an amount
determined by multiplying $2,000 by the difference between twenty-nine (29) and
the number of full-time employees employed in Deschutes County by Company as
of December 31, 2018. Interest will accrue on this portion of the loan at a rate of
eight percent (8%) per anmun from the time the Company received the loan monies
to the time they are repaid.
SECTION 4
DEFAULT
Section 4.1 Events of Default
The following shall be considered events of default:
4.1.1 Company fails to complete, or County reasonably determines that Company will
not be able to complete, the obligations described in Section 3.2 and its other
obligations under this Agreement; provided, however, that upon such failure or
determination, County shall first provide to Company written notice of such failure
or determination, and Company shall have thirty (30) days to correct the matter. If
the matter has not been corrected by Company within such thirty.(30) day period to
the reasonable satisfaction of County, County shall be entitled to declare Company
in default of its obligations under this Agreement and the loan and accrued interest
shall be payable in full.
4.1.2 Company effects a change of ownership or change of control of its bush -less which
results in dissolution or conversion of the original business entity or relocates its
business operations outside of Deschutes County, Oregon on or before the end of
the contract period. Change of ownership and/or change of control of the business
will not be deemed a default if Company notifies County which may then condition
consent on any reasonable term(s) necessary to adequately secure the loan. A
change in majority stock ownership will not constitute a default if all other
provisions in this agreement are met.
4.1.3 The occurrence of any event that has or may reasonably be expected to have a
material adverse effect on Company's financial condition or Company's ability to
make any payment required by this Agreement.
4.1.4 Company fails to pay, becomes insolvent or unable to pay, or admits in writing an
inability to pay Company's debts as they become due, or makes a general
assignment for the benefit of creditors.
4.1.5 A.proceeding with respect to Company is commenced under any applicable law for
the benefit of creditors, including, but not limited to, any bankruptcy or insolvency
law, or an order for the appointment of a receiver, liquidator, trustee, custodian, or
other officer having similar powers over Company is entered.
SECTION 5
MISCELLANEOUS
Section 5.1 Right to Inspect
Company agrees that County, their agents, and employees shall be entitled, upon reasonable prior
notice to Company, to access and inspect the property and employment records of Company and
its affiliates in order to insure that Company is complying with the terms of this Agreement and all
applicable federal, state, and local laws and regulations. The right to inspection shall also include
any property or employment records that are in the possession of any affiliate of Company. The
right of inspection shall continue until all of the obligations of Company under this Agreement
have been satisfied.
Section 5.2 Attorney's. Fee Provision
In the event suit or action is instituted to enforce any of the terms or conditions of this Agreement,
the unsuccessful'party shall pay to the prevailing party, in addition to the costs and disbursements
allowed by statute, such sum as the court may adjudge reasonable as attorney fees in such suit or
action, in both trial court and appellate courts.
Section 5.3 Indemnification
Company shall defend, indemnify and hold harmless County and IDCO, their officers, agents,
employees, and members from all claims, suits, and causes of action, including attorney's fees, of
any nature whatsoever relating to claims by third parties resulting from or arising out this
Agreement or fiends provided to Company under this Agreement.
Except as otherwise provided in this Section 5.3, County and EDCO shall defend, indemnify, and
hold harmless Company, their officers, agents, employees, and members from all claims, suits, and
causes of action, including attorney's fees, relating to claims by third parties as to the validity
under public finance law of this Agreement or funds provided to the Company under this
Agreement.
Section 5.4 Entire Agreement
This Agreement constitutes the entire agreement between the parties regarding the matters herein.
Section 5.6 Tittles and Subtitles
The titles in this Agreement are for convenience only and in no way define, limit, or describe the
scope or intent of any provision of this Agreement.
Section 5.7 Notice
All notices, requests demands, and other communications to or upon the parties hereto shall be in
writing and shall 'be deemed to have been duly given or made: Upon actual receipt, if delivered
personally or by fax or an overnight delivery service; and at the end of the third business day after
the date of deposit in the United States mail, postage pre -paid, certified, return receipt requested;
and to the addresses set forth on page 1 of this Agreement or at such other address of which such
party shall have notified in writing the other parties hereto.
Section 5.8 Time is of the Essence
All parties agree that time is of the essence under this Agreement.
Section 59 Applicable Law
This Agreement is made, and shall be construed and interpreted under the laws of the State of
Oregon without regard to the principles of conflicts of law. Venue shall lie in state courts located
in Deschutes County, Oregon, provided, however, if the claim must be brought in a federal forum,
then it shall be brought and conducted solely and exclusively within the United States District
Court for the District of Oregon.
Section 5.10 Disclosure
Under Oregon law, most agreements, promises, and comYnitments made by a lender after October
3, 1989 concerning loans and other credit extensions which are not for personal, family, or
household purposes or secured solely by borrower's residence must be in writing, express
consideration, and be signed by the lender to be enforceable.
Section 5.11 No Waiver
No failure or delay of County in exercising any right, power or remedy under this Agreement shall
operate as a waiver of such right, power or remedy of County, or of any other right. A waiver of
any provision of this Agreement shall not constitute a waiver of or prejudice County's right
otherwise to demand strict compliance with that provision or any other provision. Any waiver,
permit, consent or approval of any kind or character on the part of County must be in writing and
shall be effective only to the extent specifically set forth in such writing.
Section 5.12 No Assignment by Company
No obligation or right under this Agreement may be assigned by the Company without the prior
consent of County, which consent may be withheld, conditioned, or delayed in the sole discretion
of County.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly executed as of
the dates set forth below their respective signatures.
Deschutes County
Tom Anderson., County Administrator
Date: 5 1
Composite Approach
By: ,
BriM Harris, Owner
Date: 1117-//17
DESCHUTES COUNTY
Economic Development Forgivable Loan Program
Loan Recipient: Composite Approach
2241. SW I" Street
Redmond, OR 97756
Agreement No.: DC -2017-138
Date of Agreement: April 17, 2017
On behalf of Economic .Development for Central Oregon, I hereby certify that Composite
Approach has met all conditions of the Deschutes County Economic Development Forgivable
Loan Program as specified in Agreement DC, -2017-138 (attached).
I further attest that a representative of Economic Development for Central Oregon has reviewed
employment and payroll records furnished by Composite Approach and that such records
confirm that the company:
a) Created within and/or relocated to Deschutes County at least 8 new full-time, family
wage positions by or before December 31, 2018, and
b) Maintained these new positions in Deschutes County for a 12 -month period beyond the
creation/relocation date and by or before December 31, 2019..
1 therefore request that the Deschutes County Board of Commissioners authorize that the
business development loan made to Composite Approach be converted to a grant in accordance
with the terms of the attached agreement.
Economic Development for Central Oregon
By:
Title:z%
Dater �%
\)`i E S
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 December 5, 2018
DATE: November 28, 2018
FROM: Peter Russell, Community Development, 541-383-6718
TITLE OF AGENDA ITEM:
Consideration of Board Signature of Document No. 2018-687, Decision on (Eagle Air
Estates Paved Taxiway) Overturning a Hearings Officer's Decision that Eagle Air Estates
Paved Taxiway Violated Open Space Requirements
RECOMMENDATION & ACTION REQUESTED:
Review and approve the decision in 247-18-000626-A which overturns the hearings
officer's decision in 247 -18 -000138 -DR that a paved taxiway did violate the open space
requirements for the Eagle Air Estates subdivision.
BACKGROUND AND POLICY IMPLICATIONS:
In August 1989 a Hearings Officer approved a 12 -lot cluster subdivision, Eagle Air Estates
(EAE), under file CU-89-68/TP-89-701. The aviation subdivision included a paved taxiway to
the Sisters Airport. In May 2017 a private party filed a code enforcement complaint that the
paved taxiway violated the EAE open space requirement. EAE applied on February 8, 2018,
for a declaratory ruling (file 247 -18 -000138 -DR) that the paved taxiway did not violate the open
space requirement. After a May 22, 2018, public hearing the Hearings Officer ruled on July 25,
2018, that the paved taxiway did violate the open space requirements of CU-89-68/TP-89-701.
Mike Morgan, a party with standing and an HOA resident, on August 6, 2018, filed an appeal of
the hearings officer's decision via file 247-18-000626-A. The Board held a public hearing on
September 5 and the record closed September 26, 2018. The Board deliberated on October
10, 2018, and made a preliminary decision to overturn the Hearings Officer's decision based
on the Board's interpretation of the terms open space, development, and that a paved taxiway
was an intended land use based on the 1989 application materials and decision. The
enhancement of recreational opportunities is allowed in open space and the Board found a
paved taxiway enhanced recreational flying.
The Board gave staff direction on preparing the findings at meetings on October 10 and 24 as
well as November 28, 2018. The Board was explicit that due to the unique nature of this
specific case, the Board's decision did not set precedent.
FISCAL IMPLICATIONS: None
ATTENDANCE: Peter Russell, Senior Transportation Planner, CDD.
I
COMMUNITY DEVELOPMENT
STAFF MEMORANDUM
TO: Board of County Commissioners
FROM: Peter Russell, Senior Transportation Planner
DATE: November 28, 2018
MEETING: December 5, 2018
RE: Decision on an appeal of a declaratory ruling on a paved taxiway in
open space at Eagle Air Estates Cluster Subdivision (247 -18 -000626-
A/247 -18 -000138 -DR)
I. BACKGROUND
The Board of County Commissioners (Board) held deliberations on October 10, 2010, at 9:00 a.m.
on an appeal, 247-18-000626-A, which was an appeal of a hearings officer's denial of 247 -18 -000138 -
DR regarding an approximately 30 -year-old paved taxiway between Eagle Air Estates (EAE) and
Sisters Eagle Air Airport. The Board previously held a public hearing on the matter on September
5, closing the record September 26, 2018. The subject property has no assigned address, but is
identified on the County Assessor's map as 14-10-33D, Tax Lot 99. The EAE Cluster Subdivision was
originally approved under CU-89-68/TP-89-701. (Please see Figures 1 and 2.) The declaratory ruling
was filed in response to a code enforcement complaint filed by a private party in May 2017.
The hearings officer in hisjuly 25, 2018, decision found the paved taxiway did violate the open space
requirement. The hearings officer also determined a declaratory ruling was appropriate and
identified what issues were germane. Specifically, the hearings officer's decision, based on the
County code language at Deschutes County Code (DCC) 22.40, limited his ruling to what is open
space; what is development; what were the land use regulations in effect when EAE was approved;
what was the then -present use in 1989; and what is enhanced recreational opportunity. The
hearings officer's decision stated anything else (calculation of open space, absence of paved taxiway
on final EAE plat, access to Sisters Airport, design of paved taxiway, flooding, etc.) was not relevant.
Mike Morgan, a party with standing through his submittal of written testimony into the record for
247 -18 -000138 -DR, filed a timely appeal (247-18-000626-A) on August 6, 2018.
Figure 1, EAE Open Space, aka Common Area, 14-10-33D, Tax Lot 99
Figure 2, EAE Paved Taxiway
Page 2 of 4
11. BOARD DELIBERATIONS
The Board and staff on October 10, 2018, reviewed a Decision Matrix, which summarized the major
issues from the hearings officer's July 25, 2018, denial of the Eagle Air Estates declaratory ruling as
well as issues raised before the Board on appeal at the September 5, 2018, public hearing and
materials submitted into the written record. The matrix topics were:
• Availability of the Declaratory Ruling process
• Definition of "present use"
• Definition of "open space" as natural or undeveloped
• Definition of "open space" as related to listed traits
• "Open space" is the same as "common area"
• Definition of "development"
• Definition of "enhance recreation opportunities"
The Board found file 247 -18 -0000138 -DR met the standards of Deschutes County Code (DCC)
22.40.010 and thus the declaratory ruling process was available to the applicant. Planning Law -15
(PL -15) was the applicable County code in 1989 when the application for EAE was submitted. The
Board did not reach consensus on "present use" in PL -15 Section 1.030(80) and CU-89-68/TP-89-701
but due to the discussion on activities allowed in open space this question became moot. The Board
agreed on the interpretation of the definition of "open space" in PL -15 Section 1.050(16)(B)(1) and
agreed to overturn the hearings officer's finding. The Board agreed on the characteristics of "open
space" at PL -15 Section 1.030(80) and agreed to overturn the hearings officer's finding. The Board
agreed with the definition of "open space" only needing to meet one of the traits listed in PL -15
Section 1.030(80). The Board agreed that "open space" and "common area" were meant as
interchangeable terms in 1989. The Board agreed on what was meant by development as that term
pertained to the paved taxiway and agreed to overturn the hearings officer's finding. The Board
agreed that flying met the definition of PL -15 Sections 1.030(80) and 8.050(16)(B)(1) as used in the
1989 approval of EAE cluster subdivision.
The Board at the conclusion of deliberations gave a preliminary decision to overturn the hearings
officer's decision. The Board directed staff to write a decision, based on Board review and
discussion of the Decision Matrix, which explained the Board's decision.
The Board reviewed the draft decision on October 24 and provided further direction on the findings,
requesting staff return with amended findings. The Board sought to provide additional detail on
the unique aspects of interpreting code and intent for a nearly 30 -year-old land use decision; the
terms open space and development; and a brief discussion on equitable estoppel. The Board
continued deliberations on November 28. The Board reiterates the decision is for this specific case
only and is not precedential.
III. BOARD'S DECISION
Staff now presents Board Document No. 2018-687, a decision on file 247-18-000626-A and hereby
declares the paved taxiway in this case does not violate the open space requirement of EAE and
Page 3 of 4
overturns on appeal the Hearings Officer's decision in file 247 -18 -000138 -DR, which found the paved
taxiway did violate the open space requirement.
IV. TIMELINE
The County has 150 days to issue a decision. EAE HOA submitted 247 -18 -000138 -DR on February
9, 2018. Through various tollings by the applicant the 150t" day to render a local decision is now
December 7, 2018.
Attachment: Board Document No. 2018-687, Files 247 -18 -000626 -A/138 -DR
Page 4 of 4
ZWL
LEGAL COUNSEL
For Recording Stamp Only
DECISION OF THE BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
FILE NUMBERS:
OWNER/APPLICANT:
247 -18 -000138 -DR, 247-18-000626-A
Eagle Air Estates Homeowners Association
15860 Pilot Drive
Sisters, OR 97759
APPLICANT'S J. Christian Malone
ATTORNEY: Schmid Malone Buchanan, LLC
550 NW Franklin Ave., Suite 378
Bend, OR 97703
APPELLANT: Michael Morgan
15925 Pilot Drive
Sisters, OR 97759
PROPOSAL: An appeal of a Declaratory Ruling that a paved taxiway violated the
open space requirements of Eagle Air Estates.
STAFF REVIEWER: Peter Russell, Senior Transportation Planner
HEARINGS OFFICER
DECISION ISSUED: July 25, 2018
APPEAL FILED: August 6, 2018
HEARING DATE: September 5, 2018
RECORD CLOSED: September 26, 2018
11 7 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
Q (541) 388-6575 @ cdd@deschutes.org @ www.deschutes.org/cd
1. SUMMARY OF DECISION:
In this decision, the Board of County Commissioners ("Board") considers the appellant's appeal of
the July 25, 2018, Hearings Officer Decision (file no. 247 -18 -000138 -DR; "Hearings Officer Decision").
The Board exercised its discretion to hear the appeal de novo.
The Board received two Memoranda on the appeal from Senior Planner Peter Russell, dated August
23 and October 3, 2018 ("Staff Memoranda #1 and #2") that identified and summarized the
appellant's objections, the applicant's materials, and the Hearings Officer's findings in regard to the
issues raised in the appellant's Notice of Appeal submittal. The Board also received a memorandum
dated September 11, 2018, that focused solely on the declaratory ruling process (Staff
Memorandum #3). The Board's Decision in this appeal will refer to and incorporate the Hearings
Officer's Decision, and the summary of issues in the three Staff Memoranda.
A public hearing was held before the Board on September 5, 2018, after which the Board closed the
oral record and the applicant agreed to the Open Record closing September 12, Mutual Rebuttal
closing September 19, and Final Argument closing September 26, 2018. The Board deliberated on
the matter on October 10, 2018. (The Board rarely re-examines Hearings Officer decisions made
nearly thirty years previously. As detailed below, the subdivision application included the paved
taxiway and anticipated access to Sisters Airport. The paved taxiway has been in existence and in
use for nearly three decades.) After reviewing the record, receiving testimony from the applicant,
the appellant, and the public, and deliberating on the matter, the Board, in a 2-1 vote (Commissioner
DeBone in opposition) found that the paved taxiway did not violate the open space requirements
and overturned the hearings officer's decision, determining the appellant had met its burden of
proof. The Board based its decision primarily on a differing interpretation or the terms "open space--
and
pace"and "present use" than the hearings officer's ruling. The Board agreed with the hearings officer's
decision on the interpretation of "enhance recreational opportunities" but differed on how the term
is applied to a paved taxiway in open space.
Due to the unique aspects of this case, including that the Board is interpreting County code from
almost 30 years ago, the Board specifies its findings and interpretations are for matters in this
appeal only and are not intended to set precedent.
II. APPLICABLE STANDARDS AND CRITERIA:
The Board adopts and incorporates by reference the description of the applicable standards and
criteria as set forth in the July 25, 2018 Hearings Officer Decision (file no. 247 -18 -000138 -DR) in
Section I. The applicable criteria were:
• Planning Law 15 (PL -15)
o Section 1.030 (Definitions) (21) and (80)
o Section 8.050, Specific Use Standards (16)
• Title 22, Deschutes County Code (DCC) Procedures Ordinance
o Chapter 22.40, Declaratory Ruling
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 2 of 7
• Land Use Approval CU-89-68/TP-89-701 (Eagle Air Estates cluster subdivision)
III. BASIC FINDINGS:
The Board adopts and incorporates by reference the code interpretations, findings of fact, and
conclusions of law set forth in the July 25, 2018, Hearings Officer Decision in Section II. Basic
Findings, Subsections A (Location), B (Zoning), C (Lot of Record), D (Proposal), E (Land Use History),
F (Review Period) and II (General Findings) with the addition of the following:
Procedural History: On August 8, 1989, a County hearings officer approved CU-89-68/TP-89-701,
which created Eagle Air Estates ("EAE"). EAE is a 12 -lot cluster subdivision with hangars to the
immediate west of Sisters Eagle Airport. Pilot Drive, a private road, provides access from Camp Polk
Road to EAE. Pilot Drive ends in a cul-de-sac. A paved taxiway then extends from the cul-de-sac to
the north end of the runway at Sisters Eagle Airport. The 1989 approval required 65% of the EAE
land be open space with 35% developed. The open space has no in situs address but is a separate
tax lot described on the County Assessors Map as 14-10-33D, Tax Lot 99.
The paved taxiway has been in use since its construction circa 1991. While the paved taxiway was
not shown on the final plat, the paved taxiway was shown on the tentative plat and was discussed
in the 1989 hearings officer's decision. Specifically, under Findings of Fact #3, the 1989 Hearings
Officer summarized the paved taxiway portion of the application as:
"Access to the lots would be off of a private road leading from Camp Polk Road. The
private road, as proposed, would also connect to the northern end of the Sisters Airstrip.
The 12 lot development is designed to be an airpark subdivision, where lot owners could
taxi their personal planes out onto the private road and then to the airstrip."
Residents of EAE have consistently taxied to and from the abutting Sisters Airport for nearly three
decades. Nonetheless, the Board heard considerable testimony regarding the residents and the
Sisters Airport's complicated and, at times, vexatious relationship. The dispute between the
residents and the Sister's Airport lead to a private party filing a code enforcement complaint with
the County in May 2017, alleging the paved taxiway violated the open space requirement of EAE's
land use approval. The County's policy is to prefer resolving code enforcement complaints via
voluntary compliance, which in this instance involved applying for a land use ruling on the fact -
specific controversy of the paved taxiway. The EAE Homeowners Association ("EAE HOA") filed a
declaratory ruling application (file 247 -18 -000138 -DR) on February 8, 2018. The application stated
"A declaratory ruling that the paved taxiway does not violate 'open space' requirement." The
application was deemed complete on March 9, 2018. A public hearing was held on May 22, 2018,
before a County Hearings Officer. On July 25, 2018, the Hearings Officer issued his decision ruling
the paved taxiway violated the open space requirement. Michael Morgan, who provided written
testimony to the Hearings Officer, appealed the Hearings Officer's Decision on August 6, 2018.
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 3 of 7
The 150 -day period for issuance of a final local decision is December 7, 2018. The applicant
requested to extend the 150 -day decision period at several points throughout the process. The
combined extensions cannot exceed 215 days per ORS 215.427. The extensions totaled 124 days.
The Board decided to hear the appellant's appeal de novo in the Board's Order 2018-057 dated
August 15, 2018. A public hearing was held on September 5, 2018. The appellant, Michael Morgan,
represented himself. The opponent, Sisters Eagle Airport, was represented by Elizabeth Dickson of
Dickson Hatfield LLP. The Board heard testimony from the applicant, the appellant, and the public.
The record closed on September 26, 2018. The Board's review included the record below before
staff and the hearings officer as well as the record, testimony, and written submissions in the
proceedings on appeal before the Board.
The Board conducted deliberations at the regular Business Meeting on October 10, 2018. Staff
returned on October 24, 2018, with a draft final decision. The Board provided further input on
several issues that they found influential. The Board commented on the unusual nature of the case
before them, wherein the Board finds itself drawn into essentially a private dispute. The Board
noted the paved taxiway is a necessary ancillary use of an airpark subdivision, and that the previous
owners of the Sisters Airport never appealed the approval of the 1989 land use decision, which
included the paved taxiway. The Board further noted a trait of open space is to allow animals and
people to traverse an area without any physical obstructions, such as a shed, and a paved runway
allows movement both along its surface and crossing its surface. Finally, the Board observed they
are being asked in 2018 to interpret how the terms and definitions were used in 1989. Staff then
returned with a modified decision incorporating the Board's perspective on November 28, 2018.
The Board continued to deliberate and continued the decision until December 5, 2018.
IV. FINDINGS:
The Board adopts and incorporates by reference the record, code interpretations, findings of fact,
and conclusions contained in the July 25, 2018, Hearings Officer Decision (file no. 247 -18 -000138 -
DR) in Section II Substantive Findings, except for the additional findings related to the DCC Sections
identified below, which are amended as follows:
A. FINDING: (E)(4) CU-89-68/TP-89-701 Approval Document (First Step)
The Board disagrees with the Hearings Officer finding that:
"The inquiry, in this section of findings, is whether or not laying asphalt pavement upon
the ground, to create a paved taxiway, is development. The Hearings Officer finds laying
asphalt pavement on the ground (or any other material used to create a hard surface to
allow vehicles/aircraft to travel over) is analogous to laying pavement for a public or
private road. The Hearings Officer finds the paved taxiway is development."
"The Hearings Officer finds laying pavement for a taxiway is a human activity and
development that must be located in the 35% (non -open space area)."
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 4 of 7
"The Hearings Officer finds that allowing the paved taxiway within the EAE Cluster
Development common area/open space would be a modification of the CU-89-68/TP-89-
701 Approval clearly prohibits development within the common area/open space."
The Board finds a paved taxiway in this particular circumstance was not development, but rather
was instead a contemplated improvement that sees intermittent use. The Board finds the paved
taxiway is analogous to a paved golf cart path, and that the paved taxiway does not present a barrier
to either looking across open space or physically crossing it. Contrary to the Hearings Officer's
finding, the Board finds the record for CU-89-68/TP-89-701 clearly indicated the paved taxiway was
part of the application for EAE and an anticipated use of the land. The paved taxiway appeared on
the tentative plat and was described in the then Hearings Officer's 1989 approval of EAE under
Findings of Fact #3. The 1989 decision stated in relevant part "The 12 lot development is designed
to be an airpark subdivision, where lot owners could taxi their personal planes out onto the private
road and then to the airstrip."
The Hearings Officer in 1989 considered the paved taxiway was an allowed improvement in the
open space as indicated by the project approval, an approval that was not appealed. The paved
taxiway's presence and general location were described in the burden of proof, the staff report, and
the Hearings Officer's decision. Clearly, the airpark subdivision intended to provide a paved taxiway
to allow access to and from the Sisters Airport. A paved taxiway is an obvious necessary and
subordinate use of an aviation -based residential subdivision. The paved taxiway has been in
continuous use for nearly 30 years, and the Board now finds no reason to disturb or alter the
Hearing Officer's 1989 decision in CU-89-68/TP-89-701.
Additionally, the EAE attorney in file 247 -18 -000138 -DR, which is part of the record of file 247-18-
000626-A now before the Board, argued that because the paved taxiway was originally part of a
private road (Pilot Drive), the paved taxiway logically was part of the 35 percent of the land
considered developed and not the 65 percent considered open space. The EAE attorney further
argued opponents had not presented any survey evidence into the record that would prove
otherwise. Thus the County has discretion to decide whether the paved taxiway is in the 35 percent
planned for development, and thus a use allowed outright, or the 65 percent defined as open space.
Even if the paved taxiway were considered development, the paved taxiway in this case is an allowed
activity in the open space. Under the applicable County code, the enhancement of recreational
opportunities is allowed in open space. The Hearings Officer and the Board both agree that flying
private planes is a recreational activity. A paved taxiway is essential to this activity and thus is
allowed in open space. The paved taxiway is analogous to a golf cart path, which is also allowed in
open space. Both are horizontal features which do not disturb the visual aspects of open space nor
act as a barrier to physical movement across the open space and are crucial to recreational
activities. A paved taxiway is an ancillary and subordinate use to the EAE cluster subdivision which
was proposed as an airpark. The Board finds the specificity of the findings for CU-89-68/TP-89-701
limits the precedential value of this decision.
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 5 of 7
B. FINDING: (E)(5) PL -15 Section 1.030, (21) and PL -15 Section 1.030(80) and PL -15 Section
8.050 (16) Modified by Board Ordinance 84-105
The Board disagrees with the Hearings Officer finding that:
"The Hearings Officer finds PL -15 Section 8.050(16)(B)(2) does not allow a paved taxiway
on land designated open space in a Cluster Development."
"The Hearings Officer finds paving a taxiway is development as that term is used din} PL -15
Section 8.050(16)(b)(7)."
"The Hearings Officer finds PL -15 Section 8.050(16)(8)(1)(2) and (7) would not allow a paved
taxiway within open space land at the EAE Cluster Development."
As these issues are essentially identical to those cited in Section A, the Board incorporates its
findings in Section A into Section B by reference.
C. 6. PL -15 Section 1.030(80)
The Board disagrees with the Hearings Officer's finding that
':..the term 'present' as used in PL -15 Section 1.030(80), refers to the use of the property at
the time of the application by EAE for its Cluster Development approval."
"The Hearings O icer inds a paved taxiway would not meet the applicable 1989 definition
g ff f p Y pp definition
of open space because a paved taxiway would not be the preservation and continuation
of the 1989 use of the common area/open space land."
The Board did not reach consensus on what "present" meant. Present could mean:
1) the use at the time of the code enforcement complaint about the paved taxiway; or
2) the paved taxiway was anticipated as the "present" use based on the application
materials for CU-89-68/TP-89-701 that referenced a physical connection to Sisters
Eagle Airport; or
3) the use of the land at the time of the 1989 land use application.
Ultimately, the question of what the term "present" meant is moot as the Board agreed flying is a
recreational activity and that a paved taxiway enhances the recreational opportunity of flying.
Enhancing a recreational opportunity is an allowed use in open space.
During the appeal process, the appellant raised the issue of equitable estoppel, and one
commissioner specifically noted his concern with the issue. In a land use matter, the doctrine of
equitable estoppel can at times arise as a defense in a code enforcement action. At least one
commissioner noted concerns that the County should be mindful of a potential estoppel issue. The
paved taxiway has been in continuous use for nearly 30 years. The EAE developer spent
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 6 of 7
considerable time and money in constructing the paved taxiway; a paved taxiway which was
specifically mentioned in the approval of EAE. Homeowners in EAE have testified the presence of
the paved taxiway was a key factor in their decision to purchase their homes. EAE residents
historically and currently continue to use the paved taxiway to take their aircraft to and from the
Sisters Airport. Again, the Board finds itself in the unusual position of making a declaratory ruling
on a land use from 1989 to possibly resolve a dispute between neighboring properties. From the
Board's perspective, the opposing parties would likely benefit from a less litigious approach to
resolving their dispute.
V. DECISION:
Based on the findings set out above, the Board, in a 2-1 vote (Commissioner DeBone in opposition)
hereby declares the paved taxiway in this case does not violate the open space requirement of EAE
and overturns on appeal the July 25, 2018, Hearings Officer Decision, which found the paved
taxiway did violate the open space requirement.
Dated this day of December, 2018 Mailed this day of December, 2018
BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
Anthony DeBone, Chair
Philip G. Henderson, Vice Chair
Tammy Baney, Commissioner
THIS DECISION BECOMES FINAL WHEN MAILED. PARTIES MAY APPEAL THIS DECISION TO THE
LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS DECISION IS
FINAL.
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 7 of 7
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
DECISION OF THE BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
FILE NUMBERS:
OWNER/APPLICANT:
247 -18 -000138 -DR, 247-18-000626-A
Eagle Air Estates Homeowners Association
15860 Pilot Drive
Sisters, OR 97759
APPLICANT'S J. Christian Malone
ATTORNEY: Schmid Malone Buchanan, LLC
550 NW Franklin Ave., Suite 378
Bend, OR 97703
APPELLANT: Michael Morgan
15925 Pilot Drive
Sisters, OR 97759
PROPOSAL: An appeal of a Declaratory Ruling that a paved taxiway violated the
open space requirements of Eagle Air Estates.
STAFF REVIEWER: Peter Russell, Senior Transportation Planner
HEARINGS OFFICER
DECISION ISSUED:
APPEAL FILED:
HEARING DATE
:14I07t7Z0lX4bj4131
July 25, 2018
August 6, 2018
September 5, 2018
September 26, 2018
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
kD (541) 388-6575 @ odd@deschutes.org @www.deschutes.org/cd
SUMMARY OF DECISION:
In this decision, the Board of County Commissioners ("Board") considers the appellant's appeal of
the July 25, 2018, Hearings Officer Decision (file no. 247 -18 -000138 -DR; "Hearings Officer Decision").
The Board exercised its discretion to hear the appeal de novo.
The Board received two Memoranda on the appeal from Senior Planner Peter Russell, dated August
23 and October 3, 2018 ("Staff Memoranda #1 and #2") that identified and summarized the
appellant's objections, the applicant's materials, and the Hearings Officer's findings in regard to the
issues raised in the appellant's Notice of Appeal submittal. The Board also received a memorandum
dated September 11, 2018, that focused solely on the declaratory ruling process (Staff
Memorandum #3). The Board's Decision in this appeal will refer to and incorporate the Hearings
Officer's Decision, and the summary of issues in the three Staff Memoranda.
A public hearing was held before the Board on September 5, 2018, after which the Board closed the
oral record and the applicant agreed to the Open Record closing September 12, Mutual Rebuttal
closing September 19, and Final Argument closing September 26, 2018. The Board deliberated on
the matter on October 10, 2018. ("fhe Board rarely re-examines Hearings Officer decisions made
nearly thirty years previously. As detailed below, the subdivision application included the paved
taxiway and anticipated access to Sisters Airport. The paved taxiway has been in existence and in
use for nearly three decades.) After reviewing the record, receiving testimony from the applicant,
the appellant, and the public, and deliberating on the matter, the Board, in a 2-1 vote (Commissioner
DeBone in opposition) found that the paved taxiway did not violate the open space requirements
and overturned the hearings officer's decision, determining the appellant had met its burden of
proof. The Board based its decision primarily on a differing interpretation of the terms "open space"
and "present use" than the hearings officer's ruling. The Board agreed with the hearings officer's
decision on the interpretation of "enhance recreational opportunities" but differed on how the term
is applied to a paved taxiway in open space.
Due to the unique aspects of this case, including that the Board is interpreting County code from
almost 30 years ago, the Board specifies its findings and interpretations are for matters in this
appeal only and are not intended to set precedent.
II. APPLICABLE STANDARDS AND CRITERIA:
The Board adopts and incorporates by reference the description of the applicable standards and
criteria as set forth in the July 25, 2018 Hearings Officer Decision (file no. 247 -18 -000138 -DR) in
Section I. The applicable criteria were:
• Planning Law 15 (PL -15)
o Section 1.030 (Definitions) (21) and (80)
o Section 8.050, Specific Use Standards (16)
• Title 22, Deschutes County Code (DCC) Procedures Ordinance
o Chapter 22.40, Declaratory Ruling
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 2 of 8
• Land Use Approval CU-89-68/TP-89-701 (Eagle Air Estates cluster subdivision)
BASIC FINDINGS:
The Board adopts and incorporates by reference the code interpretations, findings of fact, and
conclusions of law set forth in the July 25, 2018, Hearings Officer Decision in Section II. Basic
Findings, Subsections A (Location), B (Zoning), C (Lot of Record), D (Proposal), E (Land Use History),
F (Review Period) and II (General Findings) with the addition of the following:
Procedural History: On August 8, 1989, a County hearings officer approved CU-89-68/TP-89-701,
which created Eagle Air Estates ("EAE"). EAE is a 12 -lot cluster subdivision with hangars to the
immediate west of Sisters Eagle Airport. Pilot Drive, a private road, provides access from Camp Polk
Road to EAE. Pilot Drive ends in a cul-de-sac. A paved taxiway then extends from the cul-de-sac to
the north end of the runway at Sisters Eagle Airport. The 1989 approval required 65% of the EAE
land be open space with 35% developed. The open space has no in situs address but is a separate
tax lot described on the County Assessors Map as 14-10-33D, Tax Lot 99.
The paved taxiway has been in use since its construction circa 1991. While the paved taxiway was
not shown on the final plat, the paved taxiway was shown on the tentative plat and was discussed
in the 1989 hearings officer's decision. Specifically, under Findings of Fact #3, the 1989 Hearings
Officer summarized the paved taxiway portion of the application as:
"Access to the lots would be off of a private road leading from Camp Polk Road. The
private road, as proposed, would also connect to the northern end of the Sisters Airstrip.
The 12 lot development is designed to be an airpark subdivision, where lot owners could
taxi their personal planes out onto the private road and then to the airstrip."
Residents of EAE have consistently taxied to and from the abutting Sisters Airport for nearly three
decades. Nonetheless, the Board heard considerable testimony regarding the residents and the
Sisters Airport's complicated and, at times, vexatious relationship. The dispute between the
residents and the Sister's Airport lead to a private party filing a code enforcement complaint with
the County in May 2017, alleging the paved taxiway violated the open space requirement of EAE's
land use approval. The County's policy is to prefer resolving code enforcement complaints via
voluntary compliance, which in this instance involved applying for a land use ruling on the fact -
specific controversy of the paved taxiway. The EAE Homeowners Association ("EAE HOA") filed a
declaratory ruling application (file 247 -18 -000138 -DR) on February 8, 2018. The application stated
"A declaratory ruling that the paved taxiway does not violate 'open space' requirement." The
application was deemed complete on March 9, 2018. A public hearing was held on May 22, 2018,
before a County Hearings Officer. On July 25, 2018, the Hearings Officer issued his decision ruling
the paved taxiway violated the open space requirement. Michael Morgan, who provided written
testimony to the Hearings Officer, appealed the Hearings Officer's Decision on August 6, 2018.
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 3 of 8
The 150 -day period for issuance of a final local decision is December 7, 2018. The applicant
requested to extend the 150 -day decision period at several points throughout the process. The
combined extensions cannot exceed 215 days per ORS 215.427. The extensions totaled 124 days.
The Board decided to hear the appellant's appeal de novo in the Board's Order 2018-057 dated
August 15, 2018. A public hearing was held on September 5, 2018. The appellant, Michael Morgan,
represented himself. The opponent, Sisters Eagle Airport, was represented by Elizabeth Dickson of
Dickson Hatfield LLP. The Board heard testimony from the applicant, the appellant, and the public.
The record closed on September 26, 2018. The Board's review included the record below before
staff and the hearings officer as well as the record, testimony, and written submissions in the
proceedings on appeal before the Board.
The Board conducted deliberations at the regular Business Meeting on October 10, 2018. Staff
returned on October 24, 2018, with a draft final decision. The Board provided further input on
several issues that they found influential. The Board commented on the unusual nature of the case
before them, wherein the Board finds itself drawn into essentially a private dispute. The Board
noted the paved taxiway is a necessary ancillary use of an airpark subdivision, and that the previous
owners of the Sisters Airport never appealed the approval of the 1989 land use decision, which
included the paved taxiway. The Board further noted a trait of open space is to allow animals and
people to traverse an area without any physical obstructions, such as a shed, and a paved runway
allows movement both along its surface and crossing its surface. Finally, the Board observed they
are being asked in 2018 to interpret how the terms and definitions were used in 1989. Staff then
returned with a modified decision incorporating the Board's perspective on November 28, 2018,
The Board continued to deliberate and continued the decision until December 5, 2018.
IV. FINDINGS:
The Board adopts and incorporates by reference the record, code interpretations, findings of fact,
and conclusions contained in the July 25, 2018, Hearings Officer Decision (file no. 247 -18 -000138 -
DR) in Section II Substantive Findings, except for the additional findings related to the DCC Sections
identified below, which are amended as follows:
A. FINDING: (E)(4) CU-89-68/TP-89-701 Approval Document (First Step)
The Board disagrees with the Hearings Officer finding that:
"The inquiry, in this section of findings, is whether or not laying asphalt pavement upon
the ground, to create a paved taxiway, is development. The Hearings Officer finds laying
asphalt pavement on the ground (or any other material used to create a hard surface to
allow vehicles/aircraft to travel over) is analogous to laying pavement for a public or
private road. The Hearings Officer finds the paved taxiway is development"
'The Hearings Officer finds laying pavement for a taxiway is a human activity and
development that must be located in the 35% (non -open space area)."
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 4 of 8
'The Hearings Officer finds that allowing the paved taxiway within the EAE Cluster
Development common area/open space would be a modification of the CU-89-68/TP-89-
701 Approval clearly prohibits development within the common area/open space."
The Board finds a paved taxiway in this particular circumstance was not development, but rather
was instead a contemplated improvement that sees intermittent use. The Board finds the paved
taxiway is analogous to a paved golf cart path, and that the paved taxiway does not present a barrier
to either looking across open space or physically crossing it. Contrary to the Hearings Officer's
finding, the Board finds the record for CU-89-68/TP-89-701 clearly indicated the paved taxiway was
part of the application for EAE and an anticipated use of the land. The paved taxiway appeared on
the tentative plat and was described in the then Hearings Officer's 1989 approval of EAE under
Findings of Fact #3. The 1989 decision stated in relevant part "The 12 lot development is designed
to be an airpark subdivision, where lot owners could taxi their personal planes out onto the private
road and then to the airstrip."
The Hearings Officer in 1989 considered the paved taxiway was an allowed improvement in the
open space as indicated by the project approval, an approval that was not appealed. The paved
taxiway's presence and general location were described in the burden of proof, the staff report, and
the Hearings Officer's decision. Clearly, the airpark subdivision intended to provide a paved taxiway
to allow access to and from the Sisters Airport. A paved taxiway is an obvious necessary and
subordinate use of an aviation -based residential subdivision. The paved taxiway has been in
continuous use for nearly 30 years, and the Board now finds no reason to disturb or alter the
Hearing Officer's 1989 decision in CU-89-68/TP-89-701.
Additionally, the EAE attorney in file 247 -18 -000138 -DR, which is part of the record of file 247-18-
000626-A now before the Board, argued that because the paved taxiway was originally part of a
private road (Pilot Drive), the paved taxiway logically was part of the 35 percent of the land
considered developed and not the 65 percent considered open space. The EAE attorney further
argued opponents had not presented any survey evidence into the record that would prove
otherwise. Thus the County has discretion to decide whether the paved taxiway is in the 35 percent
planned for development, and thus a use allowed outright, or the 65 percent defined as open space.
Private
a X4-4y45--aII-.�,({�
L Th Qn r! f .J.- h., .-.+.. �'F �' f rh., f'.,.J f ('i I Of] Go/TD O(1 701
.Uas proposed
�����,..- ,_...... .. ,. ...., .- ..r�_. ����n�u� mob„ .,. .-.. .... ...,, .,� ., .
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 5 of 8
B. FINDING: PL -15 Section 1.030(80) ------ Formatted: List Paragraph, Indent: Left: 0", Hanging:
0.5", Numbered + Level: 1 + Numbering Style: A, B, C, ...
The Board concurs with the Hearings Officers finding that flying is a recreational activity. The Board + Start at: 1 + Alignment: Left + Aligned at: 0" +
Indent at: 0.25"
further finds such an activity is explicitly allowed in open space In definitions PL -15 Section -
1.030(80) states: Formatted: Indent: Left: 0", First line: 0'�
"Open Space. Lands used for agricultural or forest uses and any land area that would
if Formatted: Font: Italic
-------
preserved and continued in its present use conserve and enhance natural or scenic Formatted: Indent: First line: 0", Right: 0.5"
resources; protect air, streams or water supply promote conservation of soils wetlands
beaches or marshes: conserved landscaped areas such as public or private golf courses
that reduce pollution and enhance the value of abutting or neighboring property enhance
the value to the public of abutting or neighboring parks forests wildlife preserves nature
reservations or other open spaces enhance recreation opportunities; preserve historic
geological and archeological sites• promote orderly urban development and minimize
conflicts between farm and non farm uses." (Emphasis added)
Thus e€venlf the_paved taxiway w -e -_re considered development, the paved taxiway in this case is._,a. n
allo_-wecIactivlty,ln__the open space.:, Under„the ap�IlcableCauntycode, the an han-cement_-of
re_Creatlonal opportunities is_allowed_in open space, The Hearings Officer and the Baard. _both agree
that flying private -planes is:_a recreational activity A_paved taxiway is essential,•to this activity a,nd.
thus is allowed in open spa.:ge. The_ paved taxiway..Is •.analogous to a golf cart ,path, which is also
all_pwed in Qpen space Both are horizontal,features which do nod dlstu_rb the visual aspects c open
space nor=act aS ,a, bartier,to physic.al rnovemen> across the open. space and are crucca__i=tp
recreational_ activlt es. A paved taxiway is an ancillary and _subordinate use -to the EAE cluster.
sub-dlvlslQn.which was proposed as ,an alrpark, The Board finds the specifinty,of the findings for
CU. -89 68/TP-89-701_ limits the precedential value Of thi decision,
Formatted: Font: Bold, Italic
Formatted: Indent: Left: 0", First line: 0"
- Formatted• Font: (Default) Open Sans
Formatted: Indent: Left: 0", First line: 0"
8C. FINDING: (E)(5) PL -15 Section 1.030, (21) and PL -15 Section 1.030(80) and PL -15 Section
8.050 (16) Modified by Board Ordinance 84-105
The Board disagrees with the Hearings Officer finding that:
"The Hearings Officer finds PL -15 Section 8.050(16)(8)(2) does not allow a paved taxiway
on land designated open space in a Cluster Development”
'The Hearings Officer finds paving a taxiwayis development as that term is used fin) PL -15
Section 8.050(16)(b)(7)."
"The Hearings Officer finds PL -15 Section 8.050(16)(8)(1)(2) and (7) would not allow a paved
taxiway within open space land at the EAE Cluster Development."
As these issues are essentially identical to those cited in Section A, the Board incorporates its
findings in Section A into Section B by reference.
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 6 of 8
6D. 6. PL -15 Section 1.030(80)
The Board disagrees with the Hearings Officer's finding that
...the term present' as used in PL -15 Section 1.030(80), refers to the use of the property at
the time of the application by EAE for its Cluster Development approval."
"The Hearings Officer finds a paved taxiway would not meet the applicable 1989 definition
of open space because a paved taxiway would not be the preservation and continuation
of the 1989 use of the common area/open space land."
The Board did not reach consensus on what "present" meant. Present could mean:
1) the use at the time of the code enforcement complaint about the paved taxiway; or
2) the paved taxiway was anticipated as the "present" use based on the application
materials for CU-89-68/TP-89-701 that referenced a physical connection to Sisters
Eagle Airport; or
3) the use of the land at the time of the 1989 land use application.
Ultimately, the question of what the term "present" meant is moot as the Board agreed flying is a
recreational activity and that a paved taxiway enhances the recreational opportunity of flying.
Enhancing a recreational opportunity is an allowed use in open space.
During the appeal process, the appellant raised the issue of equitable estoppeligven ,^^^
the
paved taxiway has been in continuous use for nearly 30 years. The attorney for the Sisters Airport
disagreed that equitable estoppel was even applicable The Board finds the issue of equitable
estoppel is not germane to the declaratory ruling question before the Board FOG developer speA4
considerable time and M()Rey in constructing the paved taxiway; a paved taxiway which was
spec ically mentiORed in the appreval of EAE. H .-E have- tes-tified the presence
historically and ruFrently centiRHE? W use the paved taxiway te &;ke their aircraft to and fFAM the
Sistersrr*. Again, the Board finds itself in the unusual position of making a declaratory ruling
on a land use from 1989 to possibly resolve a dispute between neighboring properties. From the
Board's perspective, the opposing parties would likely benefit from a less litigious approach to
resolving their dispute.
V. DECISION:
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 7 of 8
Based on the findings set out above, the Board, in a 2-1 vote (Commissioner DeBone in opposition)
hereby declares the paved taxiway in this case does not violate the open space requirement of EAE
and overturns on appeal the July 25, 2018, Hearings Officer Decision, which found the paved
taxiway did violate the open space requirement.
Dated this day of December, 2018 Mailed this day of December, 2018
BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
Anthony DeBone, Chair
Philip G. Henderson, Vice Chair
Tammy Barley, Commissioner
THIS DECISION BECOMES FINAL WHEN MAILED. PARTIES MAY APPEAL THIS DECISION TO THE
LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS DECISION IS
FINAL.
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 8 of 8
E S CSG
ca'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 December 5, 2018
DATE: November.28, 2018
FROM: Cynthia Smidt, Community Development, 541-317-3150
TITLE OF AGENDA ITEM:
Consideration of Board Signature of Document No. 2018-694, an Approval of a
Conditional Use Permit and Site Plan Review for a Church at 21420 Stevens Road
RECOMMENDATION & ACTION REQUESTED:
Staff recommends signature of Document No. 2018-694.
BACKGROUND AND POLICY IMPLICATIONS:
On October 17, 2018, the Board deliberated on this matter and instructed staff to draft an
approval in response to the appeal of a Hearings Officer Decision approving the conditional
i ieA nArmif fnr +ha chi ir�h hi it riPnvinn fhP -,ifP ninn review- The decision is now presented to
the Board for consideration of signature. The original file numbers are 247 -18 -000061 -CU / 62 -
SP, and the appeal file numbers are 247-18-000624A / 643-A (appeal of the Hearings Officer
Decision).
FISCAL IMPLICATIONS: None.
ATTENDANCE: Cynthia Smidt, Associate Planner.
DECISION OF THE BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
FILE NUMBERS: 247 -18 -000061 -CU, 247 -18 -000062 -SP (247-18-000624-A, 247-
18-000643-A)
APPLICANTS/ Father's House, Church of God Cleveland
OWNER: Randy Wills and Jack Miller
61690 Pettigrew Road
Bend, Oregon 97702
APPLICANTS' Wendie L. Kellington
ATTORNEY: Kellington Law Group PC
P.O. Box 159
Lake Oswego, Or 97034
APPELLANTS: Father's House, Church of God Cleveland'
(247-18-n Q62-cP1247-1 R-n0nQ4-o)
Randy Wills and Jack Miller
61690 Pettigrew Road
Bend, Oregon 97702
Julie Naslund et a1.2
(24:7-19-9nnntiI-n 11247-12-000643-o)
61645 Thunder Rd.
Bend, Or 97702
The applicants appealed the Site Plan Review file no. 247 -18 -000062 -SP (Appeal file no. 247-18-
000624-A).
2 Several parties loin Julie Naslund on this appeal including Michael Miles and Isabel Nevill, John
Schaeffer Patti Bailey, lames and Janet Lake Gary and Karen Rogers, Tom and Beth Lomax. and
Kirman and Tracey Kasmeyer. Julie Naslund et al appealed the Conditional Use Permit file no. 247-
18 -000061 -CU (Appeal file no. 247-18-000643-A).
Page 1
PROPOSAL: The applicants request a conditional use and site plan review to
establish a church in the Multiple Use Agricultural Zone.'
STAFF REVIEWER: Cynthia Smidt, Associate Planner
HEARINGS OFFICER: Dan R. Olsen
HEARINGS OFFICER
DECISION ISSUED: July 31, 20184
APPEALS FILED: August 8, 2018 (Father's House Appeal 247-18-0-00-062247-
18-000624-A)
A.......-+ 1 7 '1n4 0 /I. .I:,. ni., ,.I. .... .J ._ ._I -I n-7 4 n nnnn�A i . I i -i w-, n n
/-% L 1 J, GV 1 O Uulie 1VdJlul d et dl. L4/- 10-
000643-A)
BOARD HEARING: August 27, 2018
RECORD CLOSED: September 20, 2018 at 5:00 pm
1. SUMMARY OF DECISION:
In this decision, the County Board of Commissioners ("Board") considers the
appellants' appeals of the July 30, 2018 Hearings Officer Decision (247 -18 -000061 -CU,
247 -18 -000062 -SP, "Hearings Officer Decision"). The Board exercised its discretion to
hear the appeals de novo. The Board received a memorandum about the appeals
from Associate Planner Cynthia Smidt, dated October 10, 2018, which outlined the
applicants' proposal, the Hearings Officer Decision denying site plan review and
approving the applicants' conditional use permit, and a summary of the key issues in
the two Notices of Appeal.
On October 17, 2018, at a regular business meeting, the Board deliberated on the two
appeal, FnllnlA/i lb deliberutivi 1, the Board voted 3-v t^v affir 1i11 the Hearii 1g5 Of f iier'S
decision approving the applicants' conditional use permit for the proposed church,
finding that it complied with all applicable review criteria and standards of the
3 The applicants also requested a "Legal Lot Verification." However, the Hearings Officer approved
that application., N44o person appealed that approval and it is now a final decision that is not subject
to this Board's decision. Thi -s 'S because this Board's decisioR here addresseS ORIY the two appeals,
OR separate issues, that were filed against the Hearinrrc Officer's decision
4 The Hearings Officers Decision mistakenly bears the date of August 30, 2018: That is incnrrert, The
Hearings Officers Decision was issued by the Hearings Officer on July 30, 2018 and was mailed to
parties by County staff, on July 31, 2018.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 2
Deschutes County Zoning Ordinance. On the same day, the Board a4d-voted 3-0 to
overturn the Hearings Officer Decision denying the Chi applicants' site plan
review application on the subject property, finding that it too complied with all
applicable review criteria and standards of the Deschutes County Zoning Ordinance.
The Board determined that it need not and does not reach the applicants/appellants'
arguments under the Religious Land Use and Institutionalized Persons Act (RLUIPA)
or ORS 215.441. Alt_houRhthe Board notes _that RLUIPA and/or _ORS 21.5,441_mavhave
cornpIQd_asim_ilar_,_outcome,__ kc -e -r 4iM& the Board accordingly—reverses the
Hearings Officers Decision findings concerning both RLUIPA and ORS 215.441,
because it is unnecessary to reach either.
The applicants agreed to extend the 150 -day processing period for a final decision on
the two appeals for a period up to and including December 10, 2018
II. APPLICABLE STANDARDS AND CRITERIA:
Title 18 of the Deschutes County Code, the County Zoning Ordinance
Chapter 18.04, Title, Purpose and Definitions
Chapter 18.32, Multiple Use Agricultural - MUA10
Chapter 18.124, Site Plan Review
Chapter 18.128, Conditional Uses
Chapter 18.116, Supplementary Provisions
Title 22, Deschutes County Development Procedures Ordinance
1111. BASIC FINDINGS:
The Board adopts and incorporates by reference the code interpretations, findings of
fact, and conclusions of law set forth in Section II of the July 30, 2018 Hearings Officer
Decision, Exhibit A of this decision, as follows:' F—whi -i4 e of t-hic cloricinn Basic
Findings, subsections A (Location), B (Zoning), C (Site Description), E (Surrounding
Land Uses), F. (Proposal), G (Public Agency Comments), I (Hearing and Record), J
(Procedural Concerns). The following additions are made to the Basic Findings in the
Hearings Officer Decision.
81. PROCEDURAL ISSUESCONCERNS
Due Process Claim
5 The Hearings Officer Decision skips the letters "D" and "H" in this section.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 3
Under the heading of 'Violation of Due Process," appellants Naslund et al. argue in
their appeal at page 4 that they "were not afforded a meaningful opportunity to be
put on a fair playing field" because "the applicant had a member of the church, who
happens to be a senior planner, obtain info not publicly available." As a result,
appellants Naslund et al. asked the Board to "deny the conditional use application
and give the applicant instructions to reapply." Id.
The Board disagrees that the due process or other procedural rights of appellants
Naslund et al. were violated for the reasons articulated by the Hearings Officer and
supplemented herein. The Board declines to deny the application on this basis.
Thealr�r�er#oiste-thek�rohrr-en hds o ^-�n �;t -cher--ge--9
n ne- !ender tkae ap arc�va� h rry sr�— iii- l y- B- EaB.jAfhe-R4le
4, r. n . r, I ; �, t-� -. � o-- r. .o-.4, !, ..I � o- r. a 4, „ 4, .-o- � n - i I ..
r 4 - r ..
r��';--t�...r�-,-r�fi+�r� ��---ter rtr��z t, rpt-- -�t� �:---tv - trt �--�rr.��� �f � c�-�a---p�e o- ti's=3 Lb
Nastu_nd e-4 -a 1—H -e d -d --not-- ..,i&t4h-e -Apel i c a n is--af=t-&r t hhat-d ate—.
The documents at issue in the Naslund et al. appealprovided_lay_the_aforementioned.
fel-rrnerthat the p�an�farovadd to t#�Aplits; were public records. Specifically,
while this _matter _was still before the Hearings Off icer,-a-t-h�-Ap-pl+ -Rt.re-quest, the
planner provided at the applicant'srequest _to----A-p cants' electronic copies of
previous hearings officer and board decisions, which are public records. Tt-e-pla-n-ner
nhfninnrl f�,nen niikli r rnr-nrrae �Fnr f-hn Ago-y�r-.Iir-rv.tc- .-!r r�vv orf' hr. - 4 .-..-.., h;
�.r-�✓zc�rrru-c„c-- Lr;cr:�—�l-c'-zv.:-rrC, rC::vS-t�' �-C _-�2:7 ice.._-7®c.l '�S'ti cf:Y'ry..?'---u-ui-,i-9.a..._-Yy-r9_-.-_r-i ours,
wo- kstatao-r_. --Had appellants Naslund et al. asked for the same documents before
they discovered that the applicants had sought those records, appellants Naslund et
al. would have been provided those public records fern a -boat oorrl motion -as
wellat-hy_a.Conyer�layo�rirg eour�tytwor h ��n;-paid hyt
Cora -my -fog N& gime. When appellants Naslund et al. discovered the applicants had
obtained these public records, after reviewing the applicants' May 8, 2018 first open
record submittal, they too were Dr_..ov_ided„-&rraanded—a----copiesy of the same
documents that the planner had provided to the applicants_._amdeA nd�---th- t
Tthe open record period was a_lsobe- reset to provide the _aDDellants_Naslund et al.
i m_e_for-the-rn-to review those same records. poi of th�irre ue t were -grant
Speciflcally, on May 21, 201 the wurity provided a^ppeiia^ntS vasii.ind et ai_ wit'
copies of those public Further, the applicants extended the
150 -day processing period to accommodate a "restart” of the first open record period,
to June 4, 2018 to enable appellants Naslund et al. additional time to review such
decisions and submit comments about their significance into the record.
Notably the aforementioned events occurred while the matter was h—fore the
Hearings Of_(icer.-_-Follo_wing_th_e-ap eal_ofi the fiearin«5 Officer's_decision, __t;a the Board
elected to_'near this matter in_a de no voroceeGin¢as_sucn _Ttne board finds that
all parties had a full and fair opportunity to present any additional arguments and
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 4
any additional evidence they wished during thata-t_--die----B r42 de novo
proceeding-h-e-afipg.
The Board finds that there was no due process or other procedural flaw in the above
described processes necessitating denial of the applicants' application. ani-r�-
th
tc alcn a (ni iE7t
haeme44t-4o-zed4h-e-�s�i-.stac-e- 44-ie4r-a1<t-ori,--w�a-;�-,a,�o-�-�-�7,,.
Further, any "advantage" the applicants' received in obtaining public records from the
planner while the matter was still before the Hearings Officer, was an "advantage"
that the aAppellants also fully received before the Hearings ficcr_with adequate
time to review and respond to the contents of such public records and with adequate
time to make their arguments and record. In any event, after May 18, 2018, all
assistance to the applicants by the planner ceased, --and the planner's previous
involvement was not ermane orinfluential _to this Board's fair and _ irnDartial
consideration_--a-n-d t -hi -s The Board conducted a full de novo hearing on August 27,
2018-after-t-hat--d-at-e, at which time and after durin the open record_DerioA —any party
could present any information they wished, resolving any procedural irregularity enieri
if there ever was onewe-re-o-ne.
Neighborhood Meeting
Appellants Naslund et al. claimed, with support from the Hearings Officer Decision,
that the applicants were required; and failed, to conduct a neighborhood meeting
about the proposal. Neither appellants Naslund et al. nor the Hearings Officer cite a
standard requiring a neighborhood meeting to be conducted by the applicants. The
Board specifically rejects the interpretation of the County's code that any standard
applicable to the Church's appIicatinnproposal requires an applicant to conduct a
neighborhood meeting at any point in the County approval process. The Board also
notes that as a result of the Hearings Officer Decision, the applicants did conduct a
neighborhood meeting. While the Board appreciates that the applicants made that
effort, the Board reinforces that such was not required and whether, when or how it
was conducted has no bearing on the proposal's compliance with applicable approval
standards contained in the County's code. Any suggestion to the contrary in the
Hearings Officer Decision is rejected.
Transcript
1. Section 22.32.024. Transcript Requirement.
A. Except as otherwise provided in DCC 22.32.024, appellants shall
provide a complete transcript of any hearing appealed from, ,from
recorded magnetic tapes provided by the Planning Division.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 5
B. Appellants shall submit to the Planning Division the transcript no later
than the close of the day five days prior to the date set for a de novo
appeal hearing or, in on -the -record appeals the date set for receipt
of written arguments. Unless excused under DCC 22.32 024 an
appellant's failure to provide a transcript shall cause the Board to
decline to consider the appellant's appeal further and shall upon
notice mailed to the parties, cause the lower Hearings Body's decision
to become final.
C. An appellant shall be excused from providing a complete transcript if
appellant was prevented from complying bv: (1) the inability of the
Planning Division to supply appellant with a magnetic tape or tapes
of the prior proceeding or (2) defects on the magnetic tape or tapes
of the prior proceeding that make it not reasonably possiblefor
apNucant to supply a transcript. Appehants shuh cosm.p y to the
maximum extent reasonably and practicably possible.
D. Notwithstanding any other provisions in DCC 22.32 the appeal
hearings body may at any time, waive the requirement that the
appellant provide a complete transcript for the appeal hearing
\ I that t -S, sh-all provide • •• •lete transCript Of •
hearing being appealed from, frern magnetic tapes provided by the Planning
•
) State -s- "Unless an Appell-ant-S fails-i.re to
the Appellant -s!
appeal - • •• • •.• _. •• S•• •. •• • •. •••
W
• _• n(-(-))
I \ •�. ••. ••• •• • u•
Appellants' Father's House complied with the requirement to provide a transcript.
-Appellants' Naslund et al. did not comply with this requirement and instea_d_.
requested that the Board waive the requirement as contemplated fa-4e--d-t-&-pmvade-a
o f -1-1- - n .,..J -... -1 a1_ .J i:.,. -1 - s I_
rt r�tt e�3 ; e ti I I IU DUCT lA I d111U LI IC 1 C UCJI di IU I I1 IUB if Idl
Ap e�lar�t '-FathQ�� l o s€---PeiRte--d--
ega d --ire C -2?— —�4pp gllant q' -Name d -et al d they d44 --afire iew
t1a� wrote-a.rgid_-t-h-ey fid- ;,i�6-r"rL bo'c�u-t��r--�e--i�rr�-r-�-�.ri'�i-i-pt-r-'�-`�i' �,��-�--��--r-}enc--ai:Kt- - -q--j ce.:1 4h-, tI.-
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 6
T4=ae--€ oa-r-d-te e -s -appellants' Naslund et al. are excused_ from the requirement to
provide a transcript.
IV. FINDINGS
The Board adopts and incorporates by reference the code interpretations, findings of
fact, and conclusions contained in the Hearings Officer's Decision,6 except that the
Board rejects:
(1) !the Hearings Officer's finding at page 13 that "Finally, although the site and the
area pose difficulties for the applicant in meeting DCC 18.124.060 A * * *."
(2) Tthe Hearings Officer's commentary at page 14 regarding the scope of the
applicants' arguments under DCC 18.128.080. Because the Hearings Officer
determined this code standard was complied with, he did not reach the
arguments made by the applicants/appellants Fathers House concerning the
Religious Land Use and Institutionalized Persons Act (RLUIPA), which were not
limited to "discrimination" and the Board similarly does not reach those
arguments.
(3) The Hearings Officer's discussion under Findings Section III(D) regarding DCC
18.124.030(A) from pages 16-19.
(4) The Hearings Officer's discussion under Findings Section III(D) regarding DCC
18.124.030(G) at page 21;
(5) The Hearings Officer's discussion under Findings Section III(E) regarding DCC (F),
pages 28-30.
(6) The Hearings Officer's discussion under Findings Section III DCC 18.116.030(F) at
page 33.
(7) The Hearings Officers discussion under Section IV "Conclusion" (3) at page 34.
The Board supplements the Hearings Officer Decision, as stated below. To the extent
there are conflicts between any of the findings identified in the incorporated terms of
the Hearings Officer Decision and the findings below, the findings and conclusions
below shall control.
6 As noted above, we need not and do not incorporate the Hearings Officer decision approving the
applicants' application for a Lot of Record Verification. Specifically, the Hearings Officer's Findings,
appearing under the heading "Findings and Conclusions" section (A)(1), approves the applicants"'Lot of
Record" application. That application had a separate file number (247 -18 -000064 -LR) and the Hearings
Officer's findings approving it are an independent decision that was not appealed by any party. As --e
sConsequenjjyee, the Hearings Officer's decision approving the applicants' Lot of Record Verification
became final when the appeal period expired without challenge. Accordingly, this decision need not
and does not disturb or incorporate the Hearings Officer's Lot of Record findings, as no purpose is
served in doing so.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 7
CHAPTER 18.32. MULTIPLE USE AGRICULTURAL ZONE
2. Section 18.32.040. Dimensional Standards.
In an MUA Zone the following dimensional standards shall apply.
D. Building helpht. No building or structure shall be erected or enlarged
to exceed 30 feet in height except as allowed by DCC 18.120.040.
FINDING: The applicants proposed a building height of approximately 29 .8 feet (29
feet. 10 inches). The Hearings Officer approved this building height Although there
was concern regarding the overall size and scale of the structure the Board concurs
with the Hearings Officer and approves the proposed height of the church building
as nriginally nrnnncarJ 7
CHAPTER 18.128. CONDITIONAL USES
Section 18.128.015. General Standards Governing Conditional Uses
Except for those conditional uses permitting individual single-family
dwellings, conditional uses shall comply with the following standards in
addition to the standards of the zone in which the conditional use is located
and any other applicable standards of the chapter.
A. The site under consideration shall be determined to be suitable for
the proposed use based on the following factors:
1. Site, design and operating characteristics of the use[.]
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."
The proposed use shall be compatible sadth eXi-sting andprojected u
On —C►rnunrina nrnnYo
...... b P..rpfi.chicnd an t/fn fntnrc /itnJ im A/'
aQ a9sr nada►
FINDING: The applicants propose to construct a church on the subject property to
accommodate the religious needs of its congregation, whose faith requires that they
worship as a whole and requires that they educate their children and youth in a
The applicants provided an alternative building height slightly lower than originally nronoseci if the
Board found it necessary to comply with DCC 18.124.060(A). The Board declined to require the
proposed church to lower its building height as it offered to do
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 8
manner appropriate to their age. The ailicants_argued that the_current church
facility is too small to enable the congregation to worship as a whole or to attend to
the religious needs of its children and youth.
The proposed cChurch meets all dimensional standards in the code (height, setbacks,
etc.) that are designed to regulate its physical characteristics. The MUA Zzone has no
lot coverage requirements. A church is a listed conditional use in the MUA Zzone. The
issue under the above quoted conditional use standard is a subjective one asking
whether the proposed Cchurch that meets all such requirements, is "compatible" with
existing and projected uses on "surrounding properties" based upon particular factors.
B. The proposed use shall be compatible with existing and projected uses
on surrounding properties based on the factors listed in DCC
18.128.015(A).
FINDING: The Hearings Officer applied DCC 18.128.015(B) and considered the above
listed DCC 18.128.015(A) factors. After doing so, he determined that the proposed
church is compatible with projected and existing land uses on surrounding properties
and, as a result, he determined that the Church -applicant demonstrated compliance
with DCC 18.128.015(B). Appellants Naslund et al. appealed that determination. The
f h�applicant requested that the Hearings Officer's approval of the CUP—conditional
use permit be affirmed.
At issue is the Hearings Officer's interpretation of DCC 18.128.015(B), which he
explained as follows:
Staff notes that hearings officer decisions have concluded that this criterion
is intended to require that the existing and projected uses on surrounding
lands will be allowed to continue. In other words, would the proposal
preclude or severely impact whether surrounding properties may continue
to be used for their existing use or develop in accordance with the Code?
The Hearings Officer further explained his interpretation of the "compatibility"
standard to evaluate whether "the impact [of the proposed Church] on the
surrounding residences would be so great as to preclude, substantially interfere with
or preclude residential use."
The Board, as the County's governing body, has the authority to interpret the meaning
of "compatibility" as used in the County's own code. The online Merriam -Webster
Dictionary defines "compatible" as "capable of existing together in harmony." The
Board finds that with regard to DCC 18.128.015(B), it is satisfied if a proposed
conditional use is "capable of existing together in harmony" with existing and
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 9
projected uses of surrounding properties, so long as the proposed use does not
preclude, substantially interfere with or severely impact such existing or projected
uses. This code standard has been applied in the past by County decision makers to
approve a variety of structures that are conditional uses in their zoning district,
others. See
applicants' May 8, 2018 Exhibit 8 and applicants' June 4, 2018 Exhibit 6. If the test
required denial merely because a proposal is different from adjacent uses, or
converts a vacant or underdeveloped area to a developed one and as a result changes
views seen by residents, for example, few if any conditional uses could ever be
approved, and that is not a correct interpretation of this standard.
The Board further specifically finds that it is an incorrect interpretation of this
standard to decide that it prohibits approval of a proposed conditional use that is
(nrrtor in ciao th ori noir+ir�rr of "surrounding + e " The Bo rd observes
'
IUI bci It I JILc U 1011 Cxistl is UJeJ VI pl opel UCJ. I I IC UVaI U VUJeI VeJ al IU
finds that the size of a structure alone is not a listed relevant consideration under
DCC 18.128.015(A). Especially here, the Board finds it makes sense that the size of a
structure is not dispositive to compliance with this standard, given the MUA Zone
authorizes structures up to 30 feet in height; the proposal is within that height
limitation; and the MUA Zone does not include a lot coverage limitation. The
"compatibility" determination required by DCC 18.128.010(B), is not properly
interpreted to essentially import a lot coverage requirement that is__wc--have
intentionally omitted from the MUA Zone.
Thus, the Board finds that while the size of a structure may have a bearing on the site
or the design of a structure or other listed DCC 18.128.015(A) factors in particular
cases, the mere fact that a building is larger (or smaller) than others that exist on
"surrounding properties" or even on adjacent or abutting properties, is not a basis for
denial under DCC 18.128.015(B).
Accordingly, the 6oardwe agrees with the Hearings Officer Decision that to determine
"compatibility" under this standard, we must determine whether, in light of the specific
factors the standard requires to be considered, the proposed church will "severely
imr»rt„ ncl Ihcto n+lolly i-terf— w;+h a — "-,-cl. ,4-11 .. .r+i .. ,' .. ,.,-+,..J --r
JUV.7IU1ILIUIIY 11 RCI 1C1 c VV ILII, VI PIC Cxl>III I6 Vr pl VJCIICU UJCJ VI
surrounding properties. The Board further finds that a use that does not have such
adverse impacts based on the listed factors, is "capable of existing in harmony" with
existing and projected uses on surrounding properties and is therefore "compatible."
Applying this interpretation, the Boardwe affirms the Hearings Officer's approval of the
Chr and deniesy the Naslund et al. appeal.
The first step in the analysis under this subjective standard is to determine an area
for consideration as the "surrounding properties." The next step is to evaluate
existing and projected uses of such surrounding properties. The last step is to
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 10
evaluate the compatibility of the proposed church, based on the DCC 18.128.015(A)
factors, in light of the above interpretation of the meaning of "compatibility," as the
Board finds it to be used in this standard.
FI Surrounding Properties. In this finding, the Board identifies the
"surrounding properties" to be analyzed to determine the proposal's "compatibility"
under DCC 18.128.015(B). The term "surrounding properties" is not defined in the
County Cc -ode. The Merriam -Webster online dictionary unhelpfully defines the term
"surrounding"to mean"Tto enclose on all sides." LUBA has accepted an analysis area
to determine a proposal's impacts on accepted farming practices under ORS
215.296's "surrounding lands" standard and has questioned whether a larger 1.5 -mile
analysis area may be more appropriate. See Stop the Dump Coalition v. Vamhill County,
72 Or LUBA 341, 360-360 (2015), affirmed, 284 Or App 470 (2017), rev allowed 361 Or
645 (2017); accord Schellenberg v. Polk County, 22 Or LUBA 673, 6782-83 (1994). LUBA
has also upheld a "surrounding neighborhood" land use area that was "significantly
beyond the 250 [foot] notice area" under the deferential standard of review in ORS
197.829(1)(a). Olsen Design and Dev., Inc., v. City of Monmouth, 69 Or LUBA 200 206-08
(2014). The Board finds that it has the authority to exercise its discretion to decide
the meaning of the term "surrounding properties," as that term is used in the County's
own code.
The Hearings Officer identified the surrounding properties area generally, quoting the
Staff Report presented to him in advance of the April 24, 2018 hearing, as follows:
Existing and projected uses on surrounding properties consist of a mixture
of rural residences and small-scale farms, as well as urban density
development. The closest residential developments to the proposed church
building are approximately 115 feet to the north and approximately 430
feet to the west and east. Adjacent to the south and east property
boundaries is Stevens Road and Thunder Road, respectively. The Bend UGB
is located adjacent to the southern property boundary and includes Stevens
Road and the western portion of a large parcel under State of Oregon
ownership. The area within the UGB is currently zoned Urbanizable Area,
which is currently open space but is intended to be used in the future for
urban development once annexed into the city limits. The eastern region of
the large parcel is currently under review for a plan amendment and zone
change from farm to residential. The city limits of Bend and related urban
density residential development is located west of the subject property
approximately 1,400 feet. To the northwest and east of the subject property
are developed or vacant farm -zoned lands. The vegetation and topography
on the subject property is similar throughout the surrounding area with
native grasses, shrubs, and other groundcover but lacks any significant
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 11
population of tree species. The projected land uses based on the current
zoning will likely be similar to those already established such as single-
family dwellings, agricultural uses, and urban density development.
While not specifically identified, it appears from the above that the Hearings Officer
used a roughly one mile analysis area, which included to the South4the 640 -acre
parcel owned by the State of Oregon 3 to the south, a distance to the west within the
city limits described as "related urban density residential development," and an
undetermined distance to the north and east. The Staff Report and Hearings Officer's
analysis was not limited to particular zoning districts.
The applicants/Appel used a general analysis area of a roughly 1 -mile radius'
from the subject property and evaluated existing and projected uses on properties in
that are, Thn
uiaL aicaLithn+ regard to ho �h properties vVere edi i
IC: appcnai i��
Naslund et al_ argued for a 250' -foot radius around the subject property as the
appropriate distance. They also argued that only MUA Zone properties should be
considered "surrounding properties."
Under these circumstances, tThe Board finds that a roughly 1 -mile analysis area, that
is not limited to MUA-zoned properties, is the appropriate interpretation of
the term "surrounding properties" as used in DCC 18.128.015(B). As such, the Board
denies the Naslund et al. appeal on this issue. The reasons for the Board's
interpretation; are explained below.
The Board finds that there is inadequate justification to limit the surrounding
properties analysis to properties within the MUA Zone. The use of the terms "existing
and projected uses" makes clear that it is uses of surrounding properties, not property
zones, which are relevant.9 (Emphasis supplied.) Moreover, the purpose of the
standard is to determine a proposed conditional use's compatibility with existing and
projected uses in a given "surrounding" area, based on the particular listed factors of
DCC 18.128.015(A). The focus of the standard is the relationship between the
proposed use and existing and projected uses in the surrounding area, and the
mr-m-C �l�o overall r__p,+ihly ,i+h +hnrv. h . nA +hn lir+n r) 4:, Ar.
Ni vNwai vvci ail wi lf✓auuiy with u ici i i, uaScu vii the n�Lcu iacwr5. ni ly g1VC:11
surrounding properties' area may be composed of numerous zoning districts and
numerous types of uses (as here), and all existing and projected uses in the identified
analysis area are relevant to the question of whether a proposed new use is
8 The applicants analyzed existing and projected uses on a property for which any part is in the roughly
one -mile analysis area. The Board agrees with this approach and finds that it is consistent with the
proper evaluation of a "roughly" one -mile analysis area of "surrounding properties."
9 The MUA Zone is not a Goal 3 or 4 resource zone, but rather reflects that the property is subject to
a goal exception for such property.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 12
compatible with those properties' uses. When a surrounding area is composed of
many different zoning districts, it is likely that the proposal's surrounding area will
include a mosaic of existing and projected uses that are highly probative in the
compatibility analysis. Existing and projected uses on surrounding properties should
not be excluded merely because they are in a different zone than the proposal. Thus,
the Board interprets the term "surrounding properties" to include all properties,
regardless of how they are zoned, in the analysis area.
So which properties are the "surrounding properties" here? The Board begins by
identifying what it finds that term does not mean. The Board finds that the term
"surrounding properties" in DCC 18.128.015(B) is not limited to properties that are
"adjacent," because the Deschutes County Code uses the word "adjacent,"(wham
an expressly defined term\, to describe particular analysis areas in other contexts."10
The County knows how to use the term "adjacent" when a distance described by that
term is meant. In this regard adjacent is definer- in the _QCC to mean "near, close; for
example, an Ind-strial Zone acress the street or highway frem a Residential 7
shall -b Eenslrleredas'adjacent'." Therefore, "surrounding properties" are something
other than "adjacent" properties.
The Board also finds that the term "surrounding properties" is not limited to
properties that are "'ham ;gadjoinin ' a proposed use, as the County's code
specifically defines the term "abuttingadjoining' to refer to properties with a shared
property line. Similar to the use of the term "adjacent," the County knows how to use
the term "abutting when it means to apply that term. The use of the term
"surrounding properties" implies a different analysis area than being limited to
properties that are abuttingadjoining. As such, the Board finds that the term
"surrounding properties" in DCC 18.128.015(B) does not mean aingadjoinin.
Therefore, surrounding properties are not limited to those that are "near or close"
and is not limited to properties that share property lines. While such properties will
necessarily be within the "surrounding properties" analysis area, they do not
exclusively define it.
This brings the Board to determining those properties that are the "surrounding
properties" for purposes of the DCC 18.128.015(B) analysis, in this case. To make this
10 F -e- An example is DCC 18.116.030(F)(1), "Except for parking to serve residential uses, an off-street
parking area for more than five vehicles shall be effectively screened by a sight obscuring fence when
adjacent to residential uses, unless effectively screened or buffered by landscaping or structures."
Additionally-- aid lsein DCC 18.116.030(F)(8), "Parking spaces along the outer boundaries of a
parking area shall be contained by a curb or bumper rail placed to prevent a motor vehicle from
extending over an adjacent property line or a street right of way."
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 13
determination, the Board considers the purpose of undertaking the compatibility
analysis for conditional uses in the first place. The Board finds that DCC 18.128.015(B)
is a general conditional use standard that applies to the entire range of conditional
uses that are possible under the County's code, the purpose of which is to determine
if a proposed conditional use is capable of existing in harmony with existing and
projected uses in an area. Thus, this compatibility standard must be capable of being
applied to a variety of different types of conditional uses. As such, this standard must
be able to evaluate sensitive existing or projected sensitive land uses that may be
particularly incapable of existing in harmony with a particular proposed conditional
use because of, for example, operational characteristics of the proposed conditional
use that may severely adversely impact an existing or projected land use that
surrounds it. An area of "surrounding properties" that is too small runs the risk of
missing such sensitive land uses. Conversely, a proposed conditional use may be
onnrmnllchi honofiripl to cllrrnllnAing nrnnorf;no in — or c,.,k r.r.wi.Jinr.
.,.. 11-1y NLI ILI Il IUi w auI I vu1 Iun Ib NI vNc1 uc 111 all a1 ca - auk -11 aa NI V V IUII is a
place of worship, a school or community center, and it would not make sense to
exclude a benefitted or potentially benefitted area to determine compatibility. The
Board also is mindful that the "surrounding properties" selected for the compatibility
evaluation do not decide the compatibility question; rather they provide the means
to evaluate compatibility under this standard.
Thus, he Board finds that to determine whether a proposed conditional use is
compatible with an area as it now exists, or as It Ics prdiorr
tor! to exist in the f11t110 it
,l. t t. 11I LI _ I- uI l., Ill
requires consideration of a large enough area to reasonably ascertain what the
existing uses of properties in an area are that might be affected by a proposed
conditional use. In addition, it requires consideration and ac I^poll of existing and
projected development patterns for such properties. Further, where an area is
subject to dynamic change, as here, evaluating properties subject to and affected by
that dynamic change is important to determine compatibility under this standard.
Considering this, the Board finds that it is appropriate in this case to use an
approximates-r9� 1 -mile radius study area is a reasonable distanceto use
evaluate existing and projected uses of surrounding properties under this standard.
A rn bl1ly I_mile analysis area - likely Lv pick up �c�n )ILIV land UO 0 benefitted I U
uses, and existing and projected development patterns - all of which are relevant to
this analysis. It may be that some conditional uses would require an even larger area,
because of their peculiar impacts; but a roughly 1 -mile analysis area is adequate and
appropriate here and probably in most cases. The Board specifically finds that it is
appropriate for the analysis area to be "roughly" 1 -mile, because the purpose of the
analysis is not to invite controversies over measurement perfection, but rather to
understand existing and projected uses in a given "surrounding" area. The applicants'
roughly A -Fn- !r 1 e analysis area -
provides an appropriate basis for applying DCC
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 14
18.128.015(B) to determine the compatibility of the proposed church with existing
and projected uses that surround it.
Relatedly, contrary to the claim of appellants Naslund et al., there is nothing about the
250 -foot notice area required by ORS 197.763 and County CEode corollaries for quasi-
judicial land use proposals, that demands the compatibility analysis expressed in DCC
18.128.015(B), be limited to a 250 -foot notice area. The statutory and DCC imported
250 -foot' proposal notice area reflects the truism that people owning property within
250 feet' of a proposed conditional use are likely to be affected by a proposal and,
therefore, should be notified. ButHowever, it has nothing to do with determining
compatibility. The Board finds that the 250 -foot' notice area reflects adjacent (i.e.)
"nearby" properties, but does not provide a reasonable understanding of a proposal's
compatibility with existing and projected uses in the "surrounding" area.
The Board further finds that previous County decisions brought to our attention in
this process, use larger areas for the DCC 18.128.015(B) analysis. The previous
County decisions brought to our attention have not identified "surrounding
properties" with reference to particular distances. Rather, their h, it with reference is
to general areas that we note are larger than a 250 -foot -radius from a subject
property and at least one that was even larger than a roughly 1 -mile radius from a
property and thus—,that we interpret the DCC 18.128.015(B) standard to generally
contemplate. The Crossroads Church conditional use permit case cited by opponents
is a good example of howthe term "surrounding properties" in DCC 18.128.015(B) has
been applied in this regard. There, the Hearings. Officer undertook the surrounding
area evaluation for the DCC 18.128.015(B) "compatibility" analysis (and applied the
same surrounding area analysis to the DCC 18.124.060(A) "relate[s] harmoniously"
standard). The_i-leari_n s__O ficer's H -e -r -analysis took in a very large area: "the north
Bend and Tumalo areas" (Crossroads page 17), and theher findings and conclusions
were that -re,--the proposed new church "building would be virtually
indistinguishable from the barns and horse arenas located throughout the Tumalo
area." (Emphasis supplied. Crossroads page 17) It is clear that the distance evaluated
in the Crossroads decision was in excess of a 1 -mile area that surrounded the
Crossroads Church. Moreover, it, and enabled that Hearings Officer to answer what
was characterized as the "fundamental question" of "whether the proposed new
building will be so out of character with the surrounding area that it will be
incompatible." Here, similarly, a roughly 1 -mile analysis area enables a determination
of compatibility under DCC 18.128.015(B).
Moreover, iln the context of the church at issue here, the projected uses of the DSL11
parcel that lies across Stevens Road.- from the subject property, are uniquely large in
11 [Oregonl Department of State Lands.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 15
size and scale and will significantly affect the character of the area that surrounds'
the subject property. Specifically, the state DSL -owned property directly across
Steven's Road: from the subject property is quite large and is managed in trust for the
Common School Fund, which means it is required to make money for Oregon schools.
The Board finds it would be error to neglect to consider the projected uses of that
portion of the DSL property that is in the Urban Growth Boundary (UGB) and zoned
Urbanizable Area (UA), as well as the part of the DSL property that was recently
rezoned to MUA for the express purposes of making it more attractive for being
included in the UGB. The projected development of the DSL property, is as a unified
whole to result in a "complete community." This projected development, even though
the date of its development is unknown, cannot reasonably be ignored.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 16
The Board concludes that the analysis area - "surrounding properties" - are those
properties situated within the roughly 1 -mile radius around the subject propertythat
was identified by the applicants, which is shown below:
Exhibit 4
Page 6 of 6
ONE MILE STUDY AREA - CHURCH OF GOD CLEVELAND
N 0 fi nfi C�5 05 075
j]� M1i les
W p E
�•Y/ CHURCH OF GOD CLEVELAND" --
s
TI 8S, R1 2E, Sec. 2 TL 1205
co""
LLC
NoteTril< iri`0�!riS�Dn iS pr poiCO for
refs,„ _ 4 , 011y h-ld 4.98 ac. WMO USE CONSUtI NG SEHnEES
°o oS°d,I lot
1e °etl t"—e ., Located in Deschutes County Oregon CSNAPiW6 SEPVICES
u,g.ncrr ng Perp oses
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 17
An image showingthe immediate area around the subject property is provided below,
to show those properties within the roughly 1 -mile analysis area about which there
has been the greatest dispute:
FINDING, Existing Uses. The next step in the analysis is to identify the existing and
projected uses in the roughly 1 -mile surrounding properties' radius area. We focus
first on existing uses.
The City of Bend city limits is located j�approximately one-quarter (1/4) mile away
frnm tha ci ihiartnrnnarhi to tha Inioet _ nnri thoTho ovictinand
nrniortorJ leve niithin
....... ... .........�...... �..... �.......�. .... ... .... .... �., _ ..0 t. � xisti. g a d Ni vi-- vviu III I
city limits within the 1 -mile analysis area includes intensive urban uses with existing
large and tall buildings, among which is a large residential subdivision with numerous
two story houses and the existing Father's House Church (approximately 10,000 square
feet in areal and the First Missionary Church (Father's HA, se - 19,000sq., ft.; and
Mis approximately 11,012 square: feet:). AR -The following image takenen
thesubmitted by the applicant record (Chi .rch cuhmitt-ah shows+ng a sample of the
houses in the city limits.-
247-18-000061-CU,
imitsce
247-18-000061-CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 18
As in the Crossroads decision, the roughly 1 -mile analysis area in this case also
includes large agricultural buildings including two riding arenas, a number of tall
structures like power and telephone poles, and two cellular "monopoles." Compare
aApplicants'June 18, 2018 Kellington Letter Exhibit4 page 6; with aApplicants'June 18,
Zu 10 Pastor Ran dy VVIIIJ Letter Attacl III ICI IC 4.
Furthermore, in the roughly 1 -mile analysis area there are rural residences; an
excavation business (Tieratt Bros"),12 an equipment yard and/or junk yard, 13
Fraternal Order of the Eagles' storage shed 14; farms and farm buildings including two
riding arenas15; County public works complex with several buildings over 10,000 in
size, and the two largest structures being 17,520 and 34,740 square: feet.- in size. 16
Stevens Road. is also an existing use - an urban collector street within the UGB at the
subject property - and it serves not only the subject property, but also appellants
Naslund et al.'s propertiesy; the urban area within the city, *"c projected
12 Applicants' June 18, 2018 Kellington Letter, Exhibit 3.
13 Applicants' May 8, 2018 Open Record Exhibit 19, pages 9, 11, 12, 18, 22, 23, 28, 29; Applicants'August
27, 2018 Power Point, slide 19.
14 Applicants' May 8, 2018 Open Record Exhibit 19, pages 44-45, 40-43, 47
15 Applicants' June 18, 2018 Kellington Letter Exhibit 4 page 6; an -Applicants' June 18, 2018 Pastor
Randy Wills Letter Attachment 4.
16 Pastor Randy Wills April 24, 2018 letter page 8.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 19
area land uses, -Ar-, 4^IoII -ac Servesand the large amount of UA -zoned land owned by
DSL theacross frem the s Mort nrr.street.
Pro Uses. The term "projected" that describes "projected uses" is not defined
in the County Cc -ode. The Merriam Webster's Online Dictionary does not include a
specific definition of the term "projected," but does include a definition of "project"
which is defined to mean "a specific plan or design." The Merriam Webster's Online
Dictionary also includes a definition of the term "projection" that states that it means
"an estimate of future possibilities based on a current trend." The Board has
rrv-r-cr�-�`—rr�-n i rrcc ac cr-r-cn-r�-nn�r
e %heir"prrar�ct� d in DCC 18:1 ?8:019{Iaa�d finds that for uses to be
"projected" within the meaning of DCC 18.128.010(B), they need not be reflected in
adopted City or County plans or land use regulations; but rather must be reasonably
o ctim �toi-1 fi �ti irn r��rrihili+i�r 1-, -. .,.J trends
outlined
.. ,J�4.1.. 41 +. ...I
�.aul I Ia led lurid a posS1;A./nI ies based of I current Uel IUs ou lined III credible IacLua
information.
In this regard, the specific "Conceptual Master Plan"" that the State Land Board I -as
adopted to guide development of the state-owned DSL land across Stevens Road
from the subject property, is an estimate of future possibilities for that property and
so constitute the "projected" uses of that property. It is credible factual information.
The future of that possibility expressed in the Conceptual Master Plan for that state-
owned DSL property, Is trending fownrd implementation. Specifically, a majority of
that DSL property wsha-s-bee-n placed into the UGB and is now subject to City of Bend
comprehensive plan standards that are consistent with the effectuation of that
Conceptual Master Plan. Further, the County recently approved a plan amendment
to "Rural Residential Exception Area" or RREA and zone change to MUA for the balance
of that DSL property., wawi,-h-tThe DSL application for those amendments stated that.
the primary ey-vv�er e_tlie --sole-purpose for the zone _change wasof enhancing the
property's attractiveness to be included in the UGB so the entire property could be
developed as per the Conceptual Master Plan.
Accordingly, while the DSL state-owned property across Stevens Road from the
Subject property Is carr eptly undeveloped, It Is projected to develop inllei Isely as a
"complete community" by both the State Land Board and its agent DSL and, at least
with respect to a majority of it, by the City of Bend. The DSL property in total is an
approximately 640 -acre section and is broken for purposes of this analysis into two
parts. Roughly about two-thirds (2/3) of that property is directly across Stevens Road
"The 2007 Stevens Road Tracts Conceptual Master Plan that was adopted by the State Land Board
(governor, treasurer and Secretary of State) and prepared by DSL for the Land Board. is Appendix C
to Pastor Randy Wills Letter dated April 24, 2018. It is referred to herein for simplicity as "Concept
Plan" or "Conceptual Plan''=_
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 20
from the subject property and Thunder Road (360 acres). That portion is in the UGB
and is subject to the above -referenced intensive acknowledged city planning program
in the city's Comprehensive plan, which is consistent with the Conceptual Master Plan.
The remaining one-third (1/3 or 260 acres) is located further
southeast from the subject property, and has been recently approved by the County
to be re -designated Rural Residential Exception Area (RREA) and rezoned to MUA.
For the 360 acres of the DSL property that is zoned Urban Area and that
the UGB, directly�ss Steve.As Rd from the ;bje ctp- ertewe have previously
noted that the City of Bend has a comprehensive and mandatory planning program
that applies to govern its development. Some examples include: th4-Bend'scity's
Comprehensive Policy 11-66 that states, "The overall planning concept for the DSL
property as identified in Figure 11-4 is for a new complete community that
accommodates a diverse mix of housing and employment uses, including the
potential for a large -lot industrial site."" The City's Comprehensive Plan provides the
following additional mandatory development policies for this property:
Policy 11-67. This area shall provide for a mix of residential and
commercial uses, including 163 gross acres of residential plan designations,
60 gross acres of residential and/or public facility plan designations, 46
gross acres of commercial plan designations, and 93 gross acres of
industrial plan designations, including one large -lot industrial site. (Gross
acreages exclude existing right of way.,)
Policy l l -69. Subsequent planning for this area shall address preservation
of at least 50 acres for large lot industrial site in compliance with the
policies in Chapter 6.
On these fa-ctst_it__is_appropriate to _consider Tthese projected uses of this 360 -acre
portion of the DSL parcel within the UGB that is directly across Stevens Road from the
subject property, the "compatibility" analysis
under DCC 18.128.015(B), because those uses aject� tor,-a-s-tay
de, -will in large measure define the subject property as well as the surrounding area.
The Hearings Officer correctly pointed out that the proposed church could provide a
"transition" between that intensive urban center projected to occur on the state-owned
DSL property and properties owned by appellants Naslund et al. and other properties.
See Hearings Officer Decision page 14. That is a factor that favors the church's
compatibility with existing and projected uses of properties in the identified
surrounding area. The church is also provides the potential to serve the religious needs
of at least some of the new residents of that new "complete community."
'$ See Applicants' June 4, 2018 Kellington Letter Exhibit 7, page 134.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 21
The projected uses of the 260 acres of the DSL property that was recently re-
designated by the County to RREA and rezoned MUA, are similarly intensive uses
outlined in the State Land Board's adopted 2007 Conceptual Plan for the entirety of
the state 640 -acre property. In the DSL application for the plan amendment and zone
change to MUA for the 260 acres, and in the Staff Report as well as in the Hearings
Officer's decision approving that plan amendment and zone change, the State of
Oregon's position about that property is repeated as follows:
• This 260 acres will be developed consistently with the state adopted
2007 Concept Plan for the entire DSL property;
• The state has "no intention" to develop the property with MUA uses;
and
• I he pian amendment and zone change to MUA is for no other
reason than to enable the DSL property to be included in the City
UGB and serve the Concept Plan uses. (Applicants' August 27, 2018
Submittal of DSL Hearings Officer Decision and Packet, Hearings
Officer Decision pages 21-22).
The Hearings Officer Decision on the recent DSL plan amendment and zone change
to RREA and MUA respectively, also repeats DSL's position that for this property, the
state is "committed to the urban development forms and resulting community
functions and services as illustrated on the Conceptual Master Plan. That Plan was
developed. cooperatively with City of Bend planning staff to support the City's
Framework Plan." Id.
Appellants Naslund et al. argue that the state "Conceptual Plan" for state-owned
property across Stevens Road has not been "adopted" by the City or County, and
therefore cannot be used to identify "projected uses." They also argue that the
development of the DSL property is too speculative to be "projected." The Board
disagrees with both arguments. It is true that the DSL Conceptual Plan has not been
"adopted" by the City or County and is not an acknowledged City or County plan. It is
also true that there is iso particular three frame for the development of the projected
uses of the 640 acres DSL parcel or its 260 acre or 360 acre segments. However, the
Board finds that for a use to be "projected" within the meaning of DCC 18.128.015(B),
it is unnecessary that the projected use or uses be reflected in an acknowledged plan
or regulation. Further, the Board disagrees that the development of this property in
a manner that is consistent with the Conceptual Plan is too speculative to be a
projected use. The development of this property in a manner that is consistent with
the Concept Plan is reasonably estimated to occur in the future based on current
planning and policy trends, based upon information that the Board finds to be
credible. Some highlights, are below.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 22
The development of the DSL property that is in the UGB, as well as the rest of the
property recently re -designated RREA and rezoned to MUA by the County, is to be
developed as a "complete community" generally consistent with the Conceptual Plan.
See Pastor Randy Wills April 24, 2018 letter Appendix C, page 4 (Conceptual Plan) and
City of Bend Comprehensive Plan Policy 11-66 for the DSL land in the UGB which says,
"The overall planning concept for the DSL property * * * is for a new complete
community." The Conceptual Plan, which covers the entire DSL parcel (in the UGB
and zoned MUA) is undeniably an estimate of future possibilities given it is adopted
by the state's highest officials (Governor, Treasurer and Secretary of State). Further
and, because according to its terms, the Concept Plan was developed in consultation
and with the cooperation of both City and County planning staffs. See Concept Plan
pages 2-4. The entire DSL parcel is held in trust for the "Common School Fund" which
means the Land Board is bound to maximize the value and revenue from that site to
fund schools. Applicant Randy Wills April 24, 2018 letter, page 6.
An -In addition, aeldWPn;;I a trend that supports the estimate of future possibilities
that the entirety of the DSL property will likely develop consistently with the
Conceptual Plan is that the majority of the DSL parcel is already in the UGB to serve
uses that are consistent with the Conceptual Plan. Moreover, and --the State Land
Board recently authorized its staff to begin to market the entire property to be sold
and developed consistently with that Concept Plan. See aApplicants' April 24, 2018
Hearing Exhibit I. pages 3-4. Further, as noted DSL's plan amendment and rezone of
the rest of the DSL parcel from EFU to MUA was expressly for the specific purpose of
making the property attractive for being included in the UGB and for that property to
be developed consistently with the Conceptual Plan. Applicants' August 27, 2018
Evidence - DSL approval packet Hearings Officer decision approving DSL plan
amendment and rezone at page 21. ("[T]his request to re -designate and re -assign the
Comprehensive Plan and Zoning Maps from Agriculture to Rural Residential and EFU
to MUA-10, respectively, will allow this site to be eligible and competitive for UGB
inclusion in the future and help the site come closer to realizing its ultimate potential for
urban development and community benefit. Developing the eastern portion of the SRT as
part of a larger complete community and urban center serving southeast Bend residents
will make efficient use of existing and planned (adjacent and nearby) urban
infrastructure, public facilities, and public services * * *".) (Emphases supplied.)
These facts are all credible.
Accordingly, among other important aspects expressed in this decision, the Board
finds that it is important to the "projected" uses inquiry, that the Conceptual Plan for
the DSL parcel was approved by the state's highest leadership - its Governor,
Treasurer and Secretary of State. Similarly, the Board finds that it is important that a
majority of the DSL parcel is in the UGB and that the City has acknowledged adopted
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 23
plan policies governing the development of that property, which policies are
consistent with the Concept Plan. The Board further finds that it is important that the
State Land Board's representative has stated that the State is committed to
developing the recently re -designated and rezoned to MUA DSL property, consistently
with the approved Conceptual Plan. The Board finds that it is important that the DSL
representative has made clear that DSL (and the State Land Board) has "no intention"
of developing its MUA parcel with MUA uses. Instead, eve lop it with
uses that are consistent with the Conceptual Plan. Applicants' August 27, 2018
Evidence - DSL approval packet Hearings Officer decision approving DSL plan
amendment and rezone at page 21.
Other projected uses of "surrounding properties" would include vacant properties,
which the Board presumes would be projected to develop consistently with their
zoning. lig. nuwever, die property with the most relevant and important "projected uses-
are
sesare those associated with the state owned DSL property across Stevens Road from
the subject property. This is because credible information establishes that it is
-- projected to be developedwitha "complete" new community and that is probative of
the compatibility analysis required by DCC -3-318.128.015(B).
With these principles in mind, the Board we-identifies_y below, the "projected uses" of
the DSL parcel. Projected uses of the DSL property in the UGB and zoned Urban Area
(UA) are outlined III the City's Comprehensive Plan as outlined above.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 24
The UA -zoned property is shown on the map below:
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 25
The City's Comprehensive Plan contemplates the location of the "Large Lot Industrial
Site" that is required to be developed on this UA -zoned land:
Legend
®Existing Urban
Growth Boundary
i -,Proposed Urban
r- +Growth Boundary
Expansion Subareas
Bend Parks and
Recreation District
land included in UGB
expansion
97
20
97
97 '„„ Large Lot
Industrial S
al Site
0 0.5 1 2
Miles NORTH
URBAN is RWT H
Disclaimer: Site specific location of special sites is subject to refinement through
BOUN4AtiY REN(gND ,
area planning and land use review
Streams/Rivers
Data source: Deschutes County GIS (2014)
- Roads/Highways
247 -18 -000061 -CU; 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 26
A general estimate of how the DSL parcel's UA -zoned land is projected to develop; is
reflected in the Conceptual Plan for the entire DSL property as shown below19:
Stevens Road Tract Master Plan . Department of State Lands
April, 2007
19 opponents are mistaken in their claim that the Conceptual Plan for the DSL property shows 160
acres of "passive open space" "opposite" the proposed church property. The approved Conceptual
Plan shows medium density residential development opposite the proposed church.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 27
Projected uses for the recently rezoned MUA-zoned land that DSL owns that abuts
the UA -zoned area are also reflected in the above reproduced State DSL Land Board
approved Conceptual Plan.
In the alternative, the Board finds that even if the MUA-zoned portion of the DSL
property (260 acres) were o4y-projected to only develop with M-UAthose uses
permitted outright and conditionally-u&e-sin the MUA Zonethen, that 260 acres
the MU!! Zenp's-minimu+riAIl�siz-e of I 0 -acre par_would reasonably be
projected to develop with residences, agricultural buildings, churches and other uses
permitted outright or an -d -conditionals uses in the MUA Zone. Therefore, And so
thoseIL—, tea, would also be projected uses of this state owned DSL land.
FINDING!Compatibilityr-. After identifying the "surrounding properties" and the
projected and existing I.IJCJ of 11 ll IUJe pl opel IICJ, li IC i ICXL JLep IJ to IUCI Itlly VVI ICII ier
the proposed church is compatible with the existing and projected uses in the
surrounding roughly 1 -mile analysis area, based on the specific factors of DCC
18.128.01 5(B).
Those factors focus on the characteristics of the proposed site and the characteristics
of the proposed use of the site:
�. mteegn he�i, dsiuidopenUM16 %arUieristiCs ofte isj
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."
As noted previously:
• The Board agrees with the Hearings Officer that the MUA zZone has no lot
coverage requirement such as is found in the rural residential zoning
districts.
• The Board agrees with the Hearings Officer that DCC 18.128.015(B) does
have
not "prohibit ibit large structures as such," U Idt Lilt CIP 1 illts 11
demonstrated that a structure in the size range being proposed is
generally in line with other churches and is reasonably necessary to
accommodate the use.
• The Board agrees with the applicants that the size of the proposed church
is not, standing alone, a factor that DCC 18.128.015(B) requires to be
considered because it is not listed in DCC 18.128.015(A). The size of a
proposed structure for a conditional use affects other factors, like the site,
design, operating characteristics and so forth but, again, is not, standing
alone, dispositive.
247-18-000061-C U, 247-18-000062-S P, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 28
The Board agrees with the applicants and finds that churches are typically situated in
areas where there are residential uses. The proposed church is not particularly
unusual, because similarly sized and larger churches on rural properties are scattered
throughout the County and are also located in more densely populated residential
environments. See Pastor Gil Miller's Letter dated September 4, 2018, and see
aApplicants'August 27, 2018 Power Point Slide 9 (Bend Seventh Day Adventist Church,
21610 NE Butler Market Rd, Bend, OR, 97701; The Church of Jesus Christ of Latter Day
Saints, 60800 Tekampe Rd, Bend, OR, 97702; Bend Christian Fellowship, 19831
Rocking Horse Rd, Bend, OR, 97702; Christian Life Center, 21720 Hwy 20, Bend, Or,
97701. Westside Church moved to 2051 NW Shevlin Park Road in 1990 in a rural
setting, and New Hope Church's neighbors' homes adjacent to their building and
parking lot were built in 2005).
Site, Design and Operating Characteristics of the Use
With regard to the specifically listed factors to be considered in DCC 18.128.015(B), the
Board finds that the Hearings Officer correctly identified the site for the proposed use:
C. SITE DESCRIPTION: The property is approximately 4.98 acres and
rectangular. The site has relatively level topography and is vegetated
primarily with native grasses and shrubs and some juniper trees. It is
developed with a 1967 single-family dwelling and a shed in the eastern
region of the property. An irrigation canal crosses the northern half of the
property. Stevens Road is adjacent to the southern property boundary.
Thunder Road, a private access roadway, is adjacent to the eastern
boundary. According to the Flood Insurance Rate Map for Deschutes
County and the National Wetlands Inventory, the subject property is not
located in the 100 year flood plain nor does it contain wetlands.
The totality of the church building, parsonage and parking will occupy about 36% of
the site leaving the rest in open space. See Opponents' August 27, 2018 Presentation
page 8. The church building will be 14,560 square feet in size and will accommodate
up to 325 parishioners. The Churc4applicant initially proposed 118 parking spaces to
accommodate its needs. Various neighbors objected. As a result, the Church
applicant offered to install the 99 parking -stall minimum amount of parking that its
consultant Mr. Bessman determined was necessary for the church to function. The
Chchgrevised preliminary site plan, dated May 4, 2018, shows 99 parking spaces.
The Board rejects the applicants' offer to lessen the amount of parking and install just
99 parking spaces. The Board rejects the Cham "'Tapplicants' offer in this regard
because it finds that suitable offsite parking options don't exist on Stevens Road to
accommodate overflow parking, if the so-called minimum necessary 99 parking
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 29
spaces, ends up being inadequate. Accordingly, while the Board approves the
applicants' May 4, 2018 site plan for its proposed revised placement of parking area,
lighting, and other features, the Board requires the Church-ap lip cant to install the 118
parking spaces that are shown on the applicants'C" initial preliminary site plan
submitted with its application.
The Board finds that the Hearings Officer correctly generally identified the site,
design, and operating characteristics20 of the proposed use as follows:
The proposed church will be centrally located on the property and west of the
existing dwelling. It will be 14,560 square feet and able to accommodate up
to 325 parishioners. The church building will also include offices, a large
meeting area, Sunday school classrooms, bathrooms, and storage space. The
exaun� uvveu►r►g wr►► ue car►verrea to a parsonage intendedfor church uergy.
Removal of vegetation will only occur within the development area.
Otherwise, mature juniper trees and other vegetation and existing
topography throughout the property will -be -retained. Parking is proposed in --
front of the building, facing Stevens Road. The western portion is the septic
field, with a northern portion containing the reserve septic field. Introduced
landscaping beds will also be provided around and throughout the parking
area and around the back of the church. The primary driveway access from
SLCVC%►S Rvad Vdiii be" relUCULCd west ai7d the forirer C7CCe15 will be converted
to a pedestrian pathway. According to the applicant, the church use will occur
primarily on Sunday with uses accessory to the church occurring on Sunday
or other days of the week. The accessory uses include Sunday school, youth
group, Bible studies, weddings, and administrative meetings.
Additional information concerning the site, design and operating characteristics of
the proposed church is below.
With regard to the site, including landscaping and screening, the applicants will retain
14 trees on site and will plant at least 47 additional trees and will plan a minimum of
206 shrubs, as shown on the applicants' August 21, 2018 Landscape Pian (Landscape
Plan) presented at this Board's August 27, 2018 hearing. In the Landscape Plan, the
applicants showed these landscapingIp ans and also offered three different
21 The applicant explained that the proposed church will accommodate up to 322 congregants. The
Board finds the number used by the Hearings Officer and parties from time to time in the record of
325congregants, to be a rounding up of that number. There is no appreciable difference between 322
or 325 congregants_ The Bnarri arrant-, that the annlirantc mi-,takanly cairl tha nrnnncarl new church
would accommodate 375 congregants at the Board hearing on August 27, 2018. The applicants have
confirmed that number is mistaken and that 322 is correct and the Board accepts that to be the case.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 30
additional landscaping/screening options to further screen the proposed church from
objecting neighbors. At the hearing, Naslund et al. objected to such plan stating it
was inadequate, regardless of the option chosen. The Board finds that additional
screening, sin u_e-_i_ther Alternaiive_A �e Alternative B, or Alternative C,_described
below, a�eis needed_-i&-helpf -to demonstrate site compatibility, and approves the
Aapplicants' Landscape Plan .21 The Board hereby requires (and will ---imposes, a
condition of approval to this effect), that the applicants choose to either one of the
following (but are not required to do mall three): (a) install approximately 250 feet
of fencing_ represented in "Alternative A," (ba) install the additional landscaping (25
trees) represented in "Alternative Bt' or (ca) to install th-e-a mix of fencing and
landscaping fepke rh�represented in "Alternative C." sh&.A.in an alternate to s, irh
-QdditiAnAl landscaping ("Alternative A)L,—However, but (chin no event shall the
landscaping installed be less than the following:
• Applicants must retain 14 trees on site; and
• Applicants must plant at least 47 trees, for a minimum total of 61 trees in the
areas shown on the Landscape Plan; and
• Applicants must plant at least 206 total shrubs and
• Applicants must also install one of the two three "alternative" options (either
Alternative A -Ler -Alternative B. or Alternative C) listed on the Landscape Plan.
The Board further rornmmenrlchepesrequires (but does not req iiro�, that the
applicants w+;� ita�t-collaborate with adjacent property owner (Naslund and
Neand inquire of he-rtheir preference for the
additional landscaping or a fence. The Board similarly recommends. that ho-pes
washindthe ad-iacent property owners timelv_colmmunicateh orehrence back to
the -applicants Af+or-�^iill cnnci ilt Rg With hp -.r cn_A.nnollantc _.dec4de_-a--pl--e eR-c
ani-tls counatf that preence-c-kte tApp,4cat. Fina
l,_Tthe Board
ro,-„rr Me.0requires �in-ah-h-e-pew that the -applicant wM-install the additional
screening shown on the Landscape Plan as Alternative A.--Gr—Alternative B, or
Alternative C that nnr. Nash ncadjacent property owner reports as the preference-ef
hors.
The Board hereby also adopts the following analysis and finds that Hearings Officer
correctly concluded that the site is suitable for the proposed church:
Hearings Officer: Opponents contend that the site is not suitable due to its
size, topography, location and other factors in relation to this specific
proposal. The site itself is suitable for a church and parsonage. It is large
21 Contrary to claims in the record, the Board finds that the applicants landscaping will not interfere
with power distribution lines in the area. Applicants' June 18, 2018 Kellington Letter Exh. 5.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 31
enough to accommodate the proposed church and has no topographical or
other physical constraints. It has access to a collector street with good site
distance. Whether the proposed church is suitable for this site in the sense of
being compatible or relating harmoniously or with other uses and properties
or otherwise complies with applicable standards is discussed below.
The Board finds that the proposed suitable church site is compatible with existing and
projected uses on surrounding properties. The site enables the church building to
take advantage of existing landscaping and to install additional generous landscaping
to screen the proposal. The site enables the proposed church to be situated, such
that the building is oriented away from existing residences that are immediately
adjacent":
NEIGH UKHUUU SUKKUUNU NUS:
The site - its size, location, and topography - enables the proposed church and it's
parking area to be oriented toward Stevens Road and the DSL property and to be
oriented away from existing nearby residences.
zz The yellow lines on the image helew-above are power/telephone poles and power/telephone lines.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 32
The site enables the proposed church building to be outside the line of sight of all
residences looking to the east; to only be within the line of sight of the Lomax's
property looking west and then only somewhat (as explained in greater detail below
under the natural resources factor). Otherwise the proposed church building is only
within the line of sight to the south for just three residences in the immediate area
and the views of the proposed church from those residences looking west is softened
by distance and landscaping, and is already impacted by utility poles and wires, trees,
structures and buildings. Moreover, those westerly views will be significantly
impacted by the projected development of the DSL property across Stevens Road.
The site for the proposed church is compatible with those projected uses as well as
existing uses, because the site enables the proposed church to provide a transition
between those intensive projected uses of the DSL property and the immediately
adjacent residences, as the Hearings Officer observed.With-rRegarding to -other site
aspects of the proposed site, there is existing vegetation and a residence such that
the Board finds that the view from the Lomax's property looking west ac-�he
bject property is already impacted by the existing residence on the subject
property.,— In addition, weir b� tall trees and vegetation along the subject
property's Ch, eastern border_,—contributes -n-g to the site's compatibility for the
proposed church. The site's proximity to Thunder Road also contributes to the
proposed church's compatibility, as the Lomax's view of the church is softened and
mitigated by the fact that the Lomax residence is located a distance away across
Thunder Road from the proposed church. The appellants Naslund et al. Appellants
took a photograph from a point along Thunder Road looking toward the proposed
church site near the Lomax property, depicting generally where the proposed church
would be located:
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 33
As can be seen, the site is situated such that the Lomax's will continue to have views of
the mountains to the west even with the proposed church as shown in the above image.
The site is well situated in reasonable proximity to the congregation it serves. In this
regard, the site is about 1 -mile from the Pettigrew location of the existing church. The
church's congregation is predominately located within about 3 -miles of that location.
Applicants' June 4, 2018 Exhibit 1, page 11; Applicant Pastor Wills Letter dated April
24, 2018, page 5. Accordingly, the Board finds that the site is compatible with
surrounding properties because it will serve residential uses that are now in the
analvsis area and that are projected to be in the analysis area, as well as the fact that
the site is appropriately situated to serve its congregation which is mainly within the
above stated 3 -mile radius.
The design of the proposed church, including its parking area, washy -&-b carefully
considered and +s -proposed to maximize compatibility with surrounding properties
as well as adjacent residential uses while at the sarne tisimultaneously serving the
church's religious land use needs for a new building to accommodate the
record, le proposed lIlrL1 will lat churchICreaton. One neighbor expressed Iithe tlt1onggi
property owners in the surrounding properties area have not objected or commented
on the proposal including the proposed design of the church, at all. The proposed
church building, as designed, will use building materials that are similar to homes on
surrounding properties as well as in the immediate area. See aApplicants' June 4
Record Submittals, Exhibit 2 (Pastor Wills Letter to the Hearings Officer page 2).
As noted, the applicants h-a-ve-proposed to orient the church building diagonal to the
road, to minimize the building's intrusion on views from adjacent residential uses.
The applicants It--h-s-ensured that thefts parking area lighting will be out of the line of
sight of residential uses of surrounding properties, including of the appellants'
Naslund et al_ Appellants' residential uses. The ch,�applicants 4a -s --reduced
significantly the number of tall light poles in its parking area in an effort to increase
its compatibility with surrounding properties - reducing the number of taller (19.5')
light poles down to three (3) and making the rest of the lights for the parking lot low
to the ground bollard style lights. See Open Rec. Exh. 7. The Ch�h-applicants has
put the taller poles in the portion of the parking area where they are outside of
existing residential uses' line of sight. The h -applicants proposesd landscaping
greatly in excess of the 15 e� rcent%that is required that will be effective to soften its
impact. The rhe, -applicants has--tooka-ken significant steps to demonstrate that its
design impacts and use of the site are not so great as to substantially interfere with,
severely impact or preclude residential or any other existing or projected use.
One further issue is relevant at this Juncture, and the Board pauses here to consider
it. The applicants offered to lower the height of the proposed Church if that was
necessary to obtain approval. However, the Chyrc-h-applicants stated its great
preference was to maintain the proposed height as initially proposed to maintain the
church's stated spiritual significance of drawing the eye upward to God. The Board
appreciates the applicants' willingness to reduce the height of the proposed church if
such was required for approval. However, the Board expressly finds that lowering
the height of the church is not required for approval under any criterion and rejects
the Chi arch's applicants' offer to lower the height of the proposed church. The height
of the proposed church shall be as it was originally proposed in the applicants'
application on the "Preliminary Elevations" architectural drawings. The Board finds
that appellants Naslund et al. stated that the r"uapplicants' offer to lower the
height of the proposed church was not adequate to resolve their concerns, in any
event, so th-e -lowering of—the height of the proposed church serves little to no
purpose. The Board understood the opponents' primary objection to be the size of
the proposed church,, which objection, as explained herein, is not standing alone a
basis for denial. There is no code -based purpose in requiring the church to lower its
height and the Board declines to require that it do so.
The applicant explained the operational characteristics of the proposed church:
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 35
The church use will primarily occur on Sunday with services. The church
use will include other uses accessory to churches including, but not limited
to, Sunday school, youth group, Bible studies, weddings, and administrative
meetings. These accessory uses may occur on other days of the week.
In letters and testimony, Associate Pastor Wills' further explained the church's
operational characteristics:
• A current congregation of 275 people for major holidays and 200 people on
average most other times of the year, drawn from an area about a 3 -mile
radius from the current 10,000 square feet church on Pettigrew St. The church
could grow to 322 congregants in the proposed new Church.
• The religious practice of the church is to assemble together as a single unified
community group to worship God as the body of Christ.
• The religious practice includes several different ministries including a
children's and youth ministry, which the church is currently unable to perform
as it is required by its faith to do.
• Services begin by everyone meeting together, then children go to their Sunday
school classes, and babies to the nursery. The services last 75-90 minutes.
The entire Sunday religious experience at the church for all events and
including clean up; is usually from 9 a.m. to 1 p.m.
• Sunday school occurs in this morning window and is broken into age
appropriate groups of kids.
• The religious practice includes song and services on Sundays.
• After the main service on Sundays, the church conducts services to new
members on the "Growth Track." Growth Track happens for 4 consecutive
Sundays "to make people who are new to the church comfortable, so they know
about the church, its leadership and its ministry." See Open Rec Exh. 14, page 3.
• The Frontline Ministry is a volunteer ministry with 22 volunteers whose job is
to welcome the congregation on Sundays and to make them feel at home at
their church, welcome, and comfortable.
• The Ushering Ministry is a volunteer ministry where people help others to be
seated and in the leaving process.
• Music Team is a team of about 15 people who lead songs and play music
during Sunday services. About 8 of them get together at the church and
practice on Thursday evenings.
• Youth Group meets on Wednesday evenings 6:30-8:30 with about 20 youth and
3 adult volunteers. Adult volunteers arrive about 6:15 and leave by 8:45 p.m.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 36
• Administrative staff of 6 may occupy the church during the week from 9 a.m.
to 2 p.m. However, as Associate Pastor Wills explains, sometimes there is only
one person at the church during the week (Associate Pastor Wills' Letter
submitted with the aApplicants' June 18, 2018 materials, page 2):
• Office Staff - We have a total of six employees working at the church building at
various times each week. The office hours are Monday through Friday, 9 a.m. -
2 p.m. The staffing varies from day to day; sometimes there will be three of us
there, sometimes six, and sometimes just one, according to the need.
• Hosts. These volunteers host "MC" the Sunday music, announce events and
conduct the offering as a part of the service.
• Clean up. After Sunday church services someone stays to clean up.
• Occasional funerals. The most the church has ever had in a year is 3 funerals.
• Occasional weddings. Usually during the day, and the most the church has
ever had in a year is 3 weddings.
• All congregation dinners, special services, business meetings, which are
extremely important to and a part of the religious ministry, are relatively
infrequent. The mostthe church as ever hosted is a combined 12 total of these
and they are indoors and start somewhere around 6 p.m. and are completed
by 9 p.m. (Associate Pastor Wills' Letter submitted with the Aapplicants' June
18, 2018 materials, page 1):
• All -Church Dinners - We used to host all church dinners (6-8:30 p.m.) three
times a year, and we would like to do this again. We typically hosted these on
Fridays or Saturdays.
• All -Church Business Meetings - We used to have these two times a year on
Sundays, after the main service. We would like to do this again.
• Special Services - We hold special services on Christmas Eve, Christmas, and
Easter.
• All -Congregation Music Events - We used to hold all -congregation music nights
from 7-9 p.m., about four times a year, usually on a Friday. We would like to
do this again. These are always conducted inside the sanctuary, and noise
does not travel off site. It is not like we have a blaring outdoor concert. We do
not. We sing religious songs together as a part of our religious practice. This
is one important way that we connect to one another and to God.
Appellants Naslund et al. argue that the church will run an otherwise undisclosed
preschool Monday through Friday at the site and that this is an operational
characteristic that will adversely impact them. The Board finds that this claim is
onsuD-portedi� recl. The Church- applicants h,3 -s --stated, and the Board finds, that
there is no proposal to run a preschool Monday through Friday at the site and so daily
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 37
preschool is not a part of the operating characteristics of the proposal.23 See
aApplicant's June 4 Record Submittals, Exhibit 2 Pastor Wills Letter to Hearings Officer
Dan Olsen page 2, and Attachment 1. The existing church on Pettigrew allows a
preschool to use the facility during the Monday through Friday work week that is not
related to the church use, but the preschool will not come to the new site. Applicants'
June 4 Rec Exh. 2, pages 3-4.
.While not relevant to any criterion, the appellants Naslund et al. contend that the
church would not need to build a new church on the subject property if the Monday
through Friday preschool did not use space at the existing site. The Board disagrees
and finds that the preschool that operates Monday through Friday at the Pettigrew
location does not take up needed space for religious services at the Pettigrew site,
and its existence at the Pettigrew site does not sigriificanticontribute to the church's
space constraints. The Board finds teat the Pettigrew Monday through Friday pre-
school l--ad-does not
interfere with the use of the same space at different times for the needed religious
activities oftheproposed church. See -aApplicants' june-4 Record Submittals, Exhibit -- -
2 Pastor Wills Letter to Dan Olsen page 2.
Further, concerning its operational characteristics, the church is used most intensely
for its entire congregation's religious needs for a short period on Sunday. A handful
Of administrative staff occupies the building Monday through Friday from 9:00 a.m.
to 2:00 p.m. On Wednesday nights, there is a youth group meeting between 6:30-
8:30 pm. with about 20 youth and three --3 adult volunteers. Adult volunteers arrive
around ut 6:15 -gym and leave by about 8:45 pm. About eight people get together
on Thursday evenings and practice for the Sunday music ministry. The church
building will be used for special services like Christmas and Easter as well as
occasional all congregation special services like dinners, celebrations, and business
meetings, all of which occur indoors.
The Board finds that these are typical activities associated with a church and will not
preclude, substantially interfere with or severely impact, existing and projected uses
of surrounding properties. T he Board also finds that the projected uses of the DSL
property across the street including the projected residential uses, schools,
commercial and industrial uses will have activities that occur at night and on
weekends that attract large numbers of people and that the proposed church will
provide a balance and transition between those projected uses and the existing uses
of properties that surround the proposed church site. While most relevant to the
13 The church will operate its Sunday school and related child and vni nth cniriri ml11 nrl.rnaramc r1ire`Thr
ly
associated with the mission of the proposed church. The church will not operate a daily Monday
through Friday preschool or for hire preschool under the proposal we approve in this decision.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 38
next factor under DCC 18.128.015(A), the Board finds that the proposed church is
located on an urban collector arterial street, which the record demonstrates is
designed and adequate to handle traffic associated with the operating characteristics
of the proposed church.
The proposed church is a type of use that typically is established in residential areas
and indeed the existing church facility is in a residential area in Bend where it exists
compatibly with the existing residential uses that are there. Several other churches
exist in the County and City in residential areas including ones that are similar to the
immediate area surrounding the subject property. See Pastor Gil Miller's Letter dated
September 4, 2018, and see aApplicants' August 27, 2018 Power Point Slide 9. The
Board agrees with and adopts the Hearings Officer's finding below:
Churches are a conditional use in the zone, so they clearly are
contemplated. Another, perhaps broader, application of the criterion
would be to assess whether the proposal at issue greatly exceeds the scope
and impacts of a typical church or whether there is something so unique
about the area that even a "typical" church would be incompatible. This is
not a "mega -church" The proposal is well within the setbacks and other
dimensional limits in the zone. Unlike some other zones, this zone has no
maximum lot coverage or structure size. As discussed below, although
perhaps somewhat larger than necessary it is not significantly
disaroaortionately larker than other churches referenced in the record. Nor
is the church proposing activities that are not typically associated with a
church including youth classes, weddings, funerals, occasional large events
etc. The proposal is on an urban collector, has nominal peak hour
transportation impacts and otherwise typical transportation impacts. The
applicant has proposed landscaping and screening exceeding code
requirements. I agree with staff that the exterior lighting as revised appears
to be typical of uses such as a church. It will comply with the lighting
requirements of DCC Chapters 18.124 and 18.116 and the County's
Outdoor Lighting Ordinance of DCC 15.10, with are addressed below.
Finally, although the site and the area pose difficulties for the applicant in
meeting DCC 18.124.060 A., it appears to be typical of much of the rural
area so raises no significantly unique compatibility issues.
Accordingly, the Board finds that with regard to the proposed church's operational
characteristics, its impacts are not so great as to substantially interfere with, severely
impact, or preclude, residential use or any other projected or existing use of
surrounding properties. Put another way, the Board finds that the proposed church
with its site, design, and operational characteristics is capable of existing together in
harmony with existing and projected uses of properties in the surrounding 1 -mile
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 39
analysis area and, therefore, meets the "compatibility" requirement in DCC
18.128.015(B).
Finally, because appellants Naslund et al. focused on the proposed church's size, the
Board offers the following additional findings even though the size of the church
standing alone is not a listed consideration. Similar to the findings of the Hearings
Officer in the Crossroads decision, the surrounding properties include a large number
of nonresidential buildings that are similar in size to the proposed church. The
surrounding properties also include industrial or commercial types of uses - an
excavators business (Pieratt Bros.) as well as an equipment yard or junkyard and the
very large buildings in the County public works complex to the south as explained
above. The height of the proposed church is consistent with the height of residential
buildings on the surrounding properties and is similar or less tall than area
11U11Iesldentla1 structures. Ille proposed church meets the helght IlfT1It of the IVIUA
zone in which it is situated.
Moreover, here asissimilar to the Crossroads Hearings Officer's observation, the -
Board agrees that: "Indeed if the subject property were being used for agricultural
purposes rather than for a church, the proposed building's size and design would be
very typical for agricultural buildings in the MUA-10 zone and nearby Exclusive Farm
use zones." 4seln addition, similar to the Hearings Officer's findings in the
Cr oJaal
AS de%isii�i 1, the Subjc^Ct pr Uper ty is iUCated of I a busy urban collector road
that is in the UGB and that handles large volumes of traffic, making the subject site
suitable for a nonresidential use such as a church.
Adequacy of Transportation Access to the Site
Concerning the "adequacy of transportation access to the site" factor of DCC
18.128.015(A), the below demonstrates compatibility under this factor. The Board
relies upon and adopts the C# applicants'transportation study by roe Bessm-+n
a-nd-findings that it and the—is;' of -the evidence in the record establishes that
access to the site from Stevens Roads is adequate to support the proposed church_
knl ni eco Uoreover StevensDodd 4 - d t cit �L.. 1_
�ccacr✓�ivivl cyyci , .JLCfwdU 11 QUCgI.ld LC la pallLy, LI ICI a are 11U par LILUldr
safety issues associated with the proposed church access, and that there is adequate
site distance on Stevens Road. No access will be taken off-ofoff Thunder Road. In this
regard, the Board finds that the Hearings Officer correctly determined:
Stevens is an urban collector with sufficient capacity. While there may be
short surges duringoff-Peak hours such as Sunday mornings they appear
to be no more than those typically associated with a church.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 40
Accordingly, the Board finds that with regard to the proposed C4 transportation
impacts under this factor that those impacts are not so great as to substantially
interfere with, severely impact or preclude residential use or any other projected or
existing use on surrounding properties. Put another way, the Board finds that the
proposed Ch��Ttransportation impacts enable the church to be capable of existing
with existing and projected uses of properties in the surrounding 1 -mile analysis area
in harmony and, therefore, meets the "compatibility" requirement in DCC
18.128.015(B).
The Natural and Physical Features of the Site 24
Natural Features
Concerning the DCC 18.128.015(A) factor regarding natural and physical features of
the site, the Board finds the following. The only natural features on the site are some
existing juniper trees and other vegetation along Stevens and Thunder Roads and
along the property lines, which will largely remain intact. While existing views across
vacant areas of the subject property and across the DSL parcel are current natural
features, this standard does not require that those views remain unaffected by
permitted or conditional uses of the subject property now or in perpetuity.
The Chs applicants' Landscape Plan submitted on August 27, 2018, contemplates
dense native vegetation landscaping around the perimeter of the propertyto improve
and maximize the site's attractiveness. The proposed landscaping will also minimize
views of the proposed church and parking area from surrounding existing and
projected uses. Whether the church chooses the additional landscaping shown on its
Landscape Plan as "Alternative B,' ar--the fence segment shown as "Alternative A," or
a combination of fencing and landscaping shown on "Alternative C," the Board
expressly finds that either alternative will enhance the natural features of the site.
The Board also finds that the proposed retention of existing native vegetation
contributes positively toward the church's compliance with this factor. The Board
further adopts the Hearings Officer adopted findings below:
FINDING: The proposed church, including buildings and parking and
maneuvering areas, will be in an area that has relatively level terrain.
Vegetation on-site includes native grasses and shrubs with a few juniper
trees. The property is developed with an existing single-family dwelling,
access driveway, parking area, and an accessory structure (shed). There are
no known natural hazards, except for wildfire, or distinguishing natural
resource values on property. Submitted comments by neighboring property
24 DCC 18.128.01 5(A)(3) states "The natural and physical features of the site including but not limited
to general topography, natural hazards and natural resource values."
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 41
owners place value in the natural landscape, vegetation, and wildlife.
Although staff respects the neighbors' concerns, staff reviews the site as
suitable and not hindered by natural and physical features such as
wetlands, rivers, and rimrock, which this site does not contain. Staff
believes there are no natural or physical features on the site that will
prevent the proposed church use.
While the vacant portion of the subject property that the church will occupy now
provides "territorial views" that residents in the immediate surrounding area enjoy,
this fact simply reflects that the underlying property owner has not yet developed his
property with outright permitted uses or conditional uses, authorized in the zone.
Further, many of those "territorial views" are already obstructed in part due to existing
trees and vegetation and power/telephone lines and poles. The Board notes that
o� �e of appellants Nas1und et al. have a view easernent over the applicants' property
and it is unreasonable to expect the Ch�h-applicants' property to remain largely
vacant to accommodate their existing views.
Regardless, the Board expressly finds that a proposed conditional use is not
incompatible with existing uses merely because it will block or change such views.
The question is whether considering all factors, the proposal is "compatible." The
Board finds that the proposed church is compatible viewed under such
interpretation. The Board is sa`isfICU tllatthe proposed church will be an attractive-
asset
ttractiveasset to surrounding properties and will adequately fit into the natural environment
of the subject parcel. Many views will be maintained based on the site and design of
the proposal. The applicants presented the following sight line schematics, which the
Board adopts as accurate depictions of the properties and sight lines shown:
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 42
NASLUND SIGHT LINES:
-BROKEN TOP UNAFFECTED
-MT BACHELOR UNAFFECTED
-LAVA BUTTE CURRENTLY
OBSTRUCTED BY TREES LOCATED
ON NASLUND PROPERTY
-PAULINA PEAK UNAFFECTED
TERRITORIAL VIEWS TO WEST AND
NORTH REMAIN UNAFFECTED
INCLUDING:
-THREE SISTERS
-MT JEFFERSON
-MT WASHINGTON
-PILOT BUTTE
LOMAX SIGHT LINES:
-BROKEN TOP UNAFFECTED
-MT BACHELOR - POSSIBLY
AFFECTED
-LAVA BUTTE UNAFFECTED
-PAULINA PEAK UNAFFECTED
TERRITORIAL VIEWS TO
NORTHWEST UNAFFECTED:
-THREE SISTERS
-MT JEFFERSON
-PILOT BUTTE .
The main issue appears to be the abjection raised-_y_appellants Naslund et al.
reardi� ti t� the proposed size of the church building and the fact that it
affects their existing views of the vacant portion of the Ch sub-iect property.
However, as the Board (and the Hearings Officer) h,v-e--explained, the size of the
proposed church is not dispositive to this criterion. Any permitted or conditional use
that would develop on the subject property will impact their views. There is nothing
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 43
particularly unique about the proposed church's size or parking to create unique view
impacts. The proposed church's design is not substantially different in terms of its
impacts; tfrom a large home or agricultural building that could be built on the
property as a use permitted outright. Applicants' Open Record Exhibit 3,4; Applicants'
June 4, 2018 Exhibit 4, pages 5, 13-14; 16, 17; Applicants' September 4, 2018
photographic images; Applicants' September 12, 2018 Exhibits 3 and 4. The proposed
church is not substantially different #a-ffrom other existing large non-residential
buildings on surrounding properties or projected uses on surrounding properties.
Applicants' Open Record Exhibit 3, 4; Applicants' June 4, 2018 Exhibit 4, pages 13-14;
Applicants' August 27, 2018 Power Point, slides 24-47; Applicants' April 24, 2018 Letter
from Pastor Randy Wills Appendix C - Adopted Steven's Rd. Tract Conceptual Master
Plan.
The dppl�cdnt rCrc plaied illldgeJ of dpp1oxiIIIdU2 buildings on the site into the
record_aPA4The Board finds that evidence illustrative of the fact that there is nothing
about the site or proposed church design that substantially interferes with, severely
impacts or precludes theexistingresidential uses or any other existing or projected - -
use of property in the surrounding area.
An image of the approximate proposed church on the site is below:
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 44
An image of the church that the opponents suggested for the site is below:
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 45
An image of a barn that now exists in the area placed on the site, is below:
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 46
An image of one of the opponents' homes on the subject property is below:
The proposed church will provide a landscaped and developed transition between
the more intense projected uses of the DSL property to the south. The church does
not introduce or exacerbate any natural hazards.
In terms of natural features, the proposed church is reasonably situated and has
included generous ani adequate mitigation treatments. The Board finds that with
regard to the proposed church's natural features related impacts, that those impacts
are not so great as to substantially interfere with, severely impact or preclude
residential use or any other projected or existing use and are therefore compatible
with existing and projected uses of surrounding properties. Put another way, the
Board finds that the proposed church is capable of existing together in harmony with
existing and projected uses of properties in the surrounding roughly 1 -mile analysis
area, including those immediately adjacent and, therefore, meets the "compatibility"
requirement in DCC 18.128.015(B).
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 47
For all of the above reasons, the Board finds that the proposed church has
demonstrated that it is compatible with the existing and projected uses in the analysis
area considering the required factors and therefore complies with DCC 18.128.015(B).
CHAPTER 18.124. SITE PLAN REVIEW
2. Section 18.124.060(,4). Approval Criteria.
Approval of a site plan shall be based on the following criteria:
(A) The proposed development shall relate harmoniously to the natural
environment and existing development, minimizing visual impacts
and preserving natural features including views and topographical
features.
The site plan at issue is the applicants' preliminary site plan dated May 4, 2018 that
t submitted to the Hearings Officer, as modified by this Decision -to require;A1vh h
err h d€ra+tt e+te-p rna estac, all 118 parking spaces 04
the-App-kc-ants-originally proposed by he,_ap�alican sin-tE`Beir-�re4ia -z�pfS Lc-aian
subrnit¢ vo ea -r --app tia d-oc-u e4Us. See applicants' Open Rec Exh. 6; and see
Exh. 16; and further pleasesee the applicants' original application preliminary site plan.
The Hearings Officer denied the proposed site plan based on the
Hearings Officer'sk-�s interpretation of DCC 18.124.060(A). In doings so, the Hear i_rgs
Officer applied a new interpretation of DCC 18.124.060(A) to essentially require an
alternatives analysis, wherehy an applicant mustwa-s--re_qu+r_e4-tom show that there is
no other mitigation or site design possible. The Hearings Officer's interpretation
mak-es-de- it extremely difficult and perhaps imnnccihlo for an applicant or the County
to know when an applicant hard evaluated a sufficient number of alternatives to
demonstrate compliance. The aApplicants appealed the Hearings Officer's denial -and
cha.11en2edthe (-Hearin s_. Officer'sproffered interpretation.-a44d _1_heappo16nts
epo-ne_ntrs--Naslund et al. asked that the -Boardw-e. sustain the Hearings Officer's
interpretation. As__discussed_below, Tthe Board grants the applicants' appeal and
rejects the Hearings Officer's interpretation of DCC;_ 1_8_124.0_6_Q_(Ath4-s-sta-,qda_r . As
such, the Board approves the rhes -applicants' proposed site plan, as explained in
greater detail below.
The Board agrees that DCS 18124.06
0CA).Th+s-acrd is highty-subjective and__ac
times difficult to apply as the Hearings Officer observed. ButHowever, as_the Board
e
w-interpretsthe_ provision--�t, DCC1.8.124.Oi Of �thi&--rd does not require a
particularly onerous exercise. It requires an applicant to show that its proposed site
plan relates "harmoniously" to the natural environment and existing development in
a selected area. Applicants, in turn, show their site plan relates harmoniously to the
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 48
natural environment and such existing development, by reasonably "minimizing
visual impacts and preserving natural features including views and topographical
featu res."
The code does not define what it means to "relate harmoniously." The online Merriam
Webster dictionary does not include a definition of "harmoniously," but does define
the term "harmonious" to mean "having the parts agreeably related." The lawyer for
appellant Naslund et al, Mr. Van_Vactor, quotes Webster's New Twentieth Century
Unabridged dictionary defining "harmonious" as: "adapted to each other; having the
parties combined in a proportionate, orderly or congruous arrangement;
symmetrical." April 24, 2018 letter. The Hearings Officer reported that the online
Oxford Living Dictionary defines "harmoniously" to mean arranging something "in a
way that forms a pleasing or consistent whole." The Board_ grecs_with-_thf_Hearings
Officer i&-c_o_r-r--q-that there is no "particularly useful case law defining or applying this
term." As such, _i_n__this._decision, Tthe Board adopts the interpretation of the term
"harmonious" to mean, "having the parts agreeably related" and to arrange
something "in a way that forms a pleasing or consistent whole". The Board
finds that the Hearings Officer is correct that a site plan should be approved in light
of this meaning of "harmonious," so long as the proposed site plan does not create
"more disharmony than other uses allowed by right or conditionally in the MUA-10
zone." In this regard, the Board finds that this standard presumes the use is approved
and evaluates only whether the site plan for the use "relates harmoniously."
Accordingly. the Board finds that the standard is not a "no impact" standard and, that
it does not prohibit view impacts, as appellants Naslund et al., suggest. If the_Boaird
adopted_the__r asc�nin preferred i_y_cl-e_ap_pellants-_Naslund et al., tk�-ey--we-rre—ra�kt;
almost no development could be approved, because almost any development will
impact views in some way. Moreover, under their view, this site plan review standard
could be used to deny uses that are permitted outright, or for which a conditional use
permit has been granted (as here), based on the needs of the approved use, rather
than how the approved use is arranged on the site. This standard evaluates only the
latter (how the approved use is arranged on the site),; it is not properly interpreted to
second-guess the permitted or approved components of a use. The Board finds
=the proposed church site plan meets the standard set forth in DCC _1_F3..1_24.06 (Nthiy
&tand-ard-, as it is properly interpreted.
pec_iifically,_-Tt:he Board interprets DCC 18.11 ,_06C7i�0-�t4 i to rd to mean that an
applicant must demonstrate that the site plan has arranged the permitted or
approved development, in a way that evaluates existing development in the analysis
area and the natural environment and has minimized visual impacts and reasonably
preserved natural features including views and topographic features, enabling the
County decision maker to find that the site plan's impacts create no more disharmony
than other uses allowed by right or conditionally in the MUA-zone.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 49
The Board disagrees with the Hearings Officer that this standard "imposes a
somewhat higher standard than 'compatibility * * *."' The Board finds that
"compatibility" and "harmony" essentially mean the same thing, as we explain
above.25 As a result, the Board finds that the use of one term is not, and cannot be,
stricter than the other. The chief differences between the two standards is that the
DCC 18.128.015(B) compatibility standard evaluates the compatibility of the proposed
use on existing and projected uses of surrounding properties and does so in light of
specific factors that are not reproduced in DCC 18.124.060(A). The DCC 18.124.060(A)
"harmonious" standard evaluates whether a proposed site plan "relates harmoniously
to existing development and the natural environment" considering whether the site
plan shows that the applicant has reasonably mitigated its impacts and reasonably
preserved views, while still presuming that the proposed use will be established on
ll le site. I I le oval u I I Iu� Ll at a nese standards u5 c.ar i k U Here Uv ovenap) ruecause they
evaluate similar (but not identical) things. The Board observes that not every use that
requires site plan aeva4approval also requires a conditional use permit. However,
the Board finds that it -is -possible -that a permitted or approved use is arranged so
poorly on a site, that a proposed site plan must be denied under this standard.
thatThat is not the case here.
A- - iv ah r a rl-,� J +_ +-k- V :� -I- a -L,,, n..„w,.i-,--I, -- I-- _C_II . :- rr r t' r-r�--._t'rrr�,-- i.,n-tt.:s-e�--t-c:.r-t-t�-�I-h�-: ✓i -t 3�3-;� 't ..._._:�-kt"�--�J-t i -t -tri cF;- --E3F> 9...0-,-F-t -6�--isr'�c.--4-'�,3f'r43-b�-'6-FH-g-
f- n
As with DCC 18.33:128.015(6), them standard enu-merate_d__. by DCC_1-8._124.060(A)
requires the decision maker to identify an analysis area to determine the "existing
development” and "natural environment" to be evaluated. The standard does not
state whether the analysis area should include be abutting, adjacent, or other
surrounding properties. The Hearings Officer determined that a 1/4 -acre radius"
surrounding the subject property is the proper area to evaluate to determine
harmony under this standard. The Board finds that such a small area is not
appropriate under this standard and is inconsistent with the area evaluated in other
cases applying this standard, in particular the Crossroads County Hearings Officer
Decision. in Crossroads, at Issue was a proposed new church Uf about the same size
as the proposed church here. In Crossroads, the analysis area (as noted this was the
25 We explain in these findings at page 7-8 above with respect to DCC 18.128.015(B): The online
Merriam -Webster Dictionary defines "compatible" as "capable of existing together in harmony." The
Board finds that with regard to DCC 18.128.015(B), it is satisfied if a proposed conditional use is
"capable of existing together in harmony" with existing and projected (uses of surrnclnding prnrnartiac
so long as the proposed use does not preclude, substantially interfere with or severely impact such
existing or projected uses.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 50
same analysis area used in the "compatibility" analysis of DCC 18.128.015(6)), and the
views within it, were defined as follows:
1. Nature of Surrounding Area and Views. Based upon the Hearings Officer's
site visit observations and the description of the surrounding area in the
Staff Report and in the applicant's burden of proof statement, I find the
area surrounding the subject property consists of a broad mixture of
densities and uses. The subject property is located just north of the Bend
urban growth boundary (UGB). To the southeast along Highway 20 on the
northern edge of Bend are a number of large commercial and government
developments including the Mountain View and Target Malls and the
Deschutes County Corrections Complex. Adjacent to the malls is a golf
learning center including a driving range ringed by poles and nets over 100
feet in height. just north of the driving range is an abandoned outdoor
movie theater with a large screen. Directly across Highway 20 to the west of
the subject property is a small subdivision with single-family dwellings on
relatively large lots. To the south and east of the subject property along the
Old Bend -Redmond Highway are rural residences and small- to medium
scale farms and ranches with dwellings and agricultural buildings, some of
which are fairly large. To the northwest along Highway 20 are a number of
larger farms and ranches with dwellings and larger agricultural buildings
including barns and horse arenas. As discussed elsewhere in this decision,
both Highway 20 and the Old Bend -Redmond Hiahwav are desienated
arterial streets that handle large amounts of traffic. As also discussed
above, the subject property currently is developed with three buildings
including a chapel, annex and classroom, the largest of which - the annex
- is 3,200 square feet in size. The Staff Report states, and based upon my
site visit observations I concur, that the existing church buildings are similar
in mass, scale and design to rural residences and their accessory structures
in the surrounding area.
The area along Highway 20 from the Bend UGB through Tumalo to Sisters
in many locations has unobstructed views of the Cascade mountains and
foothills as well as the large open spaces on the farms and ranches in the
area. In other locations, such as the subject property and its immediate
vicinity east of Highway 20, the mountain views are fully or partially
obstructed by terrain and vegetation.
The Crossroads Hearings Officer decided that the proposed church in that case would
be "virtually indistinguishable from the barns and horse arenas located throughout
the Tumalo area * * *_" -Moreover, the Hearings Officer for Crossroads explained
that "Indeed, if the subject property were being used for agricultural purposes rather
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 51
than for a church, the proposed building's size and design would be very typical for
agricultural buildings in the MUA and nearby Exclusive Farm Use zones." The Board
finds that in the Crossroads decision, the analysis area was the "Tumalo area," and
was not limited to 1/4- acre." The Board finds that the proper analysis area under
this standard is the same analysis area that was to determine compliance with the
DCC 18.128.015(B) standard. The Board agrees that it is most appropriate and the
better interpretation of DCC 18.124.060(A), that the "compatibility" and "harmonious"
standards evaluate the same areas, when they are both applied because the applicant
seeks a conditional use. The difference where a conditional use permit is also sought,
is that DCC 18.124.060(A) does not consider "projected" uses in the analysis area (as
does DCC 18.128.015(6)) and, as such, the projected uses of the DSL property across
Stevens Road is not relevant to DCC 18.124.060(A).
-% SII-. v,L AI-, .-I. ...0 ..* -.I .,a. ..x a.11.. iL.- --� church building
-�° i_.
Appellants Naslund el al. next assert that the proposed church buildin Is too big
compared to their homes and that it will impair (block) the Lomax's view to the west
and three of the opponents'views to the south. However, the size of proposed church
is driven by the use that has been approved16under DCC 18.128.015(B). The -
building's size is the entire reason the church is seeking to construct a new building.
The issue under this standard is whether the allowed church use - which includes a
building of the size needed for that use - has its development arranged on the site
harmoniously, not whether the size of the proposed church to accommodate the
approved 11- is lar ger or smaller.
Finally, in deciding how to interpret and apply this "harmonious" standard, Dui-
historic Hearings _Officer n-ty-interpretations of the standard are relevant and the
Board considers them.
Previous Hearings Officer decisions have explained the proper interpretation of the
"harmonious" standard at issue: (see applicants' Op Rec Exh. 8, page 175):
The hearings officer concludes that this standard does not establish a "no-
impact"standard. Rather, the standard requires consideration of the natural
;� Me J--;-- raw.. � 6...__ f._ • ' ' -- - - - - '
environment n � urc UC31611 Gf Lf it prUpUsai, uy nnniri►izir►g "usual rmNuu.s and
avoiding (to the extent possible) alterations to existing natural features. The
construction of poles within the existing corridor will preserve natural and
26 In a situation as here, where an applicant submits concurrent application for site plan and
conditional use approval, the evaluation of the site plan should presume the use will be approved and
focus on the proposed use's arrangement on the site. If the use cannot be approved under thin
applicable conditional use standards, then the applicant cannot establish his use on the property
regardless of how well it may be arranged on a site plan.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 52
topographic features because it will not involve removal of much vegetation
or require extensive excavation to locate the poles in the corridor.
The issue of visual impacts is a much closer question. The standard does
not impose a cost -benefit analysis --it requires a demonstration that the
proposal (up to 16 wires on four 85 foot tall metal poles) will relate
harmoniously to the natural environment, and preserve views. Here, as the
applicant notes, the views in the area are impeded by BPA transmission
lines to the south and west, and by railroad tracts to the east. Further, the
visual impact will be lessened by the proposed tower construction, and non -
reflective wires. The hearings officer concludes, therefore, that overall, the
proposal will relate harmoniously to the natural environment and will
preserve views.
Similarly, for a proposed 56 -foot tall water tank in a residential neighborhood, a
County Hearings Officer decided at aApplicants' Op Rec Exh. 8, page 192:
FINDINGS: For the reasons set forth in the conditional use compatibility
findings above and incorporated by reference herein, the Hearings Officer
finds that with imposition of a condition of approval requiring the applicant
to paint the water storage tank a flat dark olive green color, the proposed
tank will relate harmoniously with the natural environment and existing
development, will minimize visual impacts, and will preserve natural
features.
And yet another County Hearings Officer felt the same way regarding an electricity
transmission corridor explaining at aApplicants' Op Rec Exh. 8, page 219:
Visual Impacts
The standard set forth in DCC 18.124.060(A) requires that the proposed
development minimize visual impacts, and preserve views. Prior hearings
officers' opinions have interpreted this provision and have found. 1) that
the provision does not represent a "no impact" standard, and 2) that the
standard requires the county to ensure that the proposal will relate
harmoniously with the natural environment. See CU -07-30. I agree with this
interpretation of DCC 18.124.060(A) and adhere to it.
The Board finds that the Hearings Officer's decision in the Crossroads Church matter
is not inconsistent with thee -e- aforementioned Hearin--sOfficers` interpretations -e f
thisst�,-; rd. The Board further finds that cau_rthe interpretation of the "harmonious"
standard tk at--4---adopte_dhereins 4n--tN_s--cage, is likewise consistent with the
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 53
aforementionedN_earings Officers' se inter ret tionsp-reA;t�+-s---dec-inn-s-- —�
o rre�t.
With these principles in mind, the Board- examines next whether the church -has
submitted a site plan that establishes t -hat -4- rc u -have -take -a -sufficient steps
to demonstrate that the plan -impacts do not create any "more disharmony than
other uses allowed by right or conditionally in the MUA-10 Zzone." _eThis is
based on the parts (building, its orientation, parking and landscaping) are "agreeably
related" to existing development and the natural environment and are arranged "in a
way that forms a pleasing or consistent whole" by reasonably preserving natural
features including views, considering the physical features (i.e. building and parking)
that the approved use requires. The Board We -finds that the church's site plan meets
these tests.
The Board finds that the applicantsrh s -demonstrated the characteristics of
the existing natural environment and as,-showedn that the existing natural
environment is significantly impacted by human developmentincluding suchthings-
as power or telephone poles and lines,27 a utility monopole, 18 commercial
businesses, 29 an apparent junkyard to the west,30 accumulations of junk on the DSL
property across the street,31 and 1,300 feet away, the intense urban development of
the City of Bend,32 among other things. The existing natural environment is also fairly
flat ..�,th fev^v� trees. Existing deveivp 1 1IL in the a'1 �iS ar ea is identifict`�.0 under the
"surrounding properties" analysis for DCC 18.128.015(B), explained above.
The Board agrees with the Hearings Officer that the church proposal here is similar
in appearance to other churches in the area and is reasonably necessary to serve the
religious needs of the applicants. The Board finds that the rheapplicants' kms
explained that 4s -the site plan is agreeably related to "existing development" and the
"natural environment" by preserving 14 trees -and., installing generouslandscaping
well in excess of what the code requires, k�y_orienting the building and parking toward
Stevens Road and by establishing lighting for the facility that is outside of the line of
sight of the closest residences, among other things
Even though the Board finds it to be irrelevant to the approval of the site plan under
this standard, in the alternative, the Board finds that with respect to the size/bulk of
27 Applicants' Open Rec Exh. 19 and 20; Applicant's June 18 Pastor Wills Letter, Attachment 4.
28 Applicants' June 18 Pastor Wills Letter, Attachment 4.
29 Applicants' June 18 Kellington Letter, Exh. 3 and Exh. 4, page 6 (Pieratt Bros Contractors).
31) Applicants' Open Rec Exh. 19 and 20.
31 Applicants' Open Rec Exh. 2.
32 See Application narrative at page 1; Applicant's Open Rec Exh. 19, page 14.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 54
the church, the proposed 14,560 sq. ft.33 church is similar in size to other churches.
See aApplicants' August 27, 2018 Power Point, slide 9. It is no bigger than the size of
a large home that would be permitted outright on the subject property under the
County Cc -ode. (Applicants' Op Rec Exh. 3 and 4). The Board finds that the proposed
church is similar in size to a riding arena that is a use permitted outright in the MUA
Zone and is similar in size to the 11,520 sq. ft. riding arena that in fact exists in the
area. (Rec. Applicants' Kellington June 18, 2018 Letter Submittal Exh. 4, page 6). The
proposed church is smaller than the existing buildings at the County public works
property in the analysis area, which buildings include several that are larger than
10,000 sq. ft. including two that are 17,520 sq. ft. and one building that is 34,740 sq.
ft. (Rec Pastor Randy Wills Letter Submitted at April 24, 2018 hearing, page 8). The
Board finds that the area includes other churches, such as the existing 10,000 sq. ft.
Father's House Church and 11,012 square foot First Missionary Church. (Rec.
Applicants' Kellington June 18, 2018 Letter Submittal Exh. 4, page 6). While the
proposed church is larger than houses in the immediate area, it harmoniously relates
to the existing residences and other existing development. In addition, the proposed
church relates harmoniously to af�d-the natural environment in the sense that it has
minimized its view impacts and 4a -s -preserved views as much as reasonably possible
given a building of this size is a necessary component of the approved church
conditional use. The Board finds that it is also relevant to this that agricultural uses
including a barn of the same size (or larger) is permitted outright in the zoning district.
DCC 18.32.202(A).
Further, commercial activities in conjunction with farm use are allowed teras a
conditional use;; C-URin the MUA Zone. See DCC 18.32.030. Moreover, the Board finds
that the proposal has fewer adverse impacts or certainly no worse impacts than other
uses allowed as conditional uses in the MUA Zone such as elementary schools, kennels,
veterinary clinics, or any "public" or semi-public use," which can include a hospital and
a variety of other uses. See DCC 18.32.030. In this regard, the semi-public uses allowed
under a conditional use permit in the MUA zZone, are very broadly defined:
"Semipublic use" means a structure or use intended or used for both private
and public purposes by a church, lodge, club or any other nonprofit
organization.
Public Uses allowed under conditional use permits in the MUA Zzone, are also broadly
defined:
33During the Hearings Officer proceedings Mr. Van Vactor for appellant Naslund et A' expressed
concerns about a 15,000" sq. ft. church. See Van Vactor June 18, 2018 Letter pages 3, 4, 5. To clarify,
the proposal is not for a church that is 15,000 sq. ft.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 55
"Public use" means a use owned or operated by a public agency for the
benefit of the public generally. This does not include landfill sites, garbage
dumps or utility facilities.
This means that a fire station, police station, nursing home, hospital, club, drug
addiction and recovery center and so forth could be established in the MUA Zone on
the exact subject property. Because the MUA_Zone includes no lot coverage
limitations, such facilities can be as big as or larger than the proposed church. The
proposed church's visual impacts are certainly no worse than these uses and its site
plan relates at least as harmoniously to existing development and natural features,
than such uses would. The applicants therefore demonstrate that the proposed site
plan causes no greater impacts on this natural environment and existing
development than uses permitted outright (and conditionally) in the MUA-Zone. The
Board expressly finds that the proposed church itself also relates harmoniously to
existing development and the natural environment. Further, the Board finds that the
proposed physical features of a church building and parking etc., are reasonably
- - - necessary to serve the religious needs of the applicants.
The Board finds that the evidence supports that the Chi applicants' site plan
demonstrates that it has made significant and successful efforts to mitigate its visual
impacts, including that the church has:
• Placed its parking in the front of the church, oriented toward the street to
minimize any residence having the parking lot in their view. Applicants' Open
Rec. Exh. 6, 16.
• Changed all but three of the proposed outdoor lights to "low profile," "bollard"
style lights with just three light poles that will be 19.5 feet'34 in height. Open
Rec. Exh. 7; Applicants' June 18 Kellington Letter, Exh. 5, page 2, compare to
Revised Site Plan at Applicants' Open Rec Exh. 6.
• Adjusted the location of the three 19.5 -footlight poles to be outside the line
of sight of any opponent's residence. Applicants' Open Rec Exh. 6; 16.
•—Established that its lighting won't project off site or have significant impact off
site. Rec Application Exh. F, Site Lighting Photometric Plan; Applicants' Open
Rec Exh. 6; 16.
• Selected building materials that are similar to those used on area homes. Rec.
Applicant's June 4 Record Exh. 2, page 3.31
34 Initially, these reduced poles were going to be 20 feet -in height, but their height was further reduced
to 19.5' feet, Applicants'June 18 Pastry Wilk L etter page 2; Applirantg' h ine 18 Kellingaton Letter Exh
5, page 2.
31Pastor Wills explained:
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 56
• Included a design of the proposed church that is similar to area homes or
agricultural buildings. See Application Exhibits in the record:
V1
r 1
• Amended its landscaping plan to add significant landscaping along its perimeter.
• Demonstrated in its application materials that the height of the proposed
church is within the limits imposed by the MUA Zzone.
As explained previously, the Board declines to require the proposed church to lower
its building height, as it offered to do. I-owerin2 the building h,ftht is likewiseSu-GNNs
unnecessary for the site plan to comply with the "harmonious" standard. Moreover,
as previouslyobservedwc� �,e�--p-revi-a�, the Board finds that the h'q
applicants' opponents ham stated that the Chi offer does not aid the church site
plan's harmony with their homes. The Board finds that the proposed church Its
demonstrated that its site plan relates harmoniously to the identified existing natural
envirnnmPnt and existing development in the area: and that its site Dlan reasonably
preserves the natural features (including views and native vegetation), while still
establishing the needed and approved church use on the site.
Please also understand that we poured over our design at the new site so as to be sure we did not
over build, but to ensure that our new church is exactly what we need to carry on the ministry that
God has called us to do. We have kept our building under the 30 foot height limitation the county
requires. We will be using wood siding on most of the building to blend into the surrounding homes
and metal roofing as many of our neighbors have. We have done everything we possibly could do
to harmonize our church with the surrounding area.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 57
The Board further finds that views in the area are already impacted and the site plan
has -adequately minimized the church's impact on existing views considering that no
existing resident has a view easement over the church's property. Concerning
existing views, the Board notes that the DSL Common School Fund property across
Stevens Road has long been an unsightly problem dumping ground for trash and an
attractant of unlawful makeshift tents and other encampments. (Applicants' Open
Rec. Exh. 2):
Moreover, the proposal only affects area views from the residences immediately
surrounding the subject property of the butte to the south and from the Lomax
property looking west, but these views are already compromised by varying tall
features such as other dwellings, or tall vegetation, busy urban features, as well as
unsightly features. Existing views in the area include a 50 -foot monopole (June 18,
2018 Pastor Randv Wills Letter, Attachment 41: several telenhnne anti nnwPr nnlac
(Rec. Id., Applicants' Open Rec Exh. 19, pages 7, 8; Exh. 20, pages 1-13); a 19.8"'raptor
pole" 2 inches in diameter.36 (June 18, 2018 Pastor Randy Wills Letter, pages 2-3;
Attachment 4; Applicants' Open Rec Exh. 20, page 2). Just 1,300 feet to the west of the
proposed church site, is the intensely developed City of Bend with houses, churches
and other features that impact the opposing neighbors' views of the Cascades to the
west. (Application Narrative page 1; Applicant's Open Rec Exh. 20, pages 12, 13).
36 It is apparent that raptors can perch on the church's proposed three 19.5' light poles in the parking
lot. Rec. Pastor Randy Wills Letter Submittal June 18, 2018 Attachment 2.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 58
There is what appears to be a junkyard or equipment yard on property just to the
west of the subject property that is also within the opponents' "view shed" of the
Cascades toward the City of Bend. (Applicants' Open Rec Exh. 19, pages 11, 12, 22,
52, 54). There is a commercial excavation business (Pieratt Bros. Contractors) next to
the apparent junkyard also in the opposing neighbors' 'view shed". (June 18, 2018
Kellington Letter Exh. 3 and see Id). There is a metal storage building and a wooden
shed on property owned by the "Eagles" Fraternal organization that is also to the west
affecting the aAppellants Naslund et al. views of the Cascades. Applicants' Open Rec
Exh. 19, pages 44, 45, 47.
The architectural design ofe-f r, and building materials to be used in, the construction
of the proposed church are of similar design and composition to the houses in which
the opponents' reside and +n -the greater ^f thQ surrounding prop area.
(Applicants'June 4 Record Exh. 2, page 3, and see footnote 15). The maximum amount
of existing native vegetation on the site will be preserved, and new native plants will
be planted. (Application narrative; Open Rec Exh. 5; Applicants' June 18, Kellington
Letter, Exh. 5).
The Board finds that a church is inherently harmonious with residential development
because it is a type of supportive residential use. It draws from people who are in
their homes on the day of the Sabbath who wish to assemble together to pray and
worship. (Rec. June 4, 2018 Pastor Randy Wills Letter page 4). A church adds to nearby
residential property values. (Applicants' Rec. Open Rec Exh. 11, Daae 8-19). As
Senator Orrin Hatch explained in the legislative history of RLUIPA (Applicants' June 4,
Rec Exh. 1, page 10):
"And while it seems odd that we would need legislation to protect the first
freedom guaranteed by the Bill of Rights, when faced with this second-best
situation we must do our best to ensure that in our communities Bible study
will not be zoned out of believers' own homes, to ensure that Americans'
places of worship will not be zoned out of their neighborhoods, and
ultimately to ensure that the Founders' free exercise guarantee will demand
thatgovernment have agood reason before it prohibits a religious practice.')
4nd ilndeed, as explained in the legislative history of ORS 215.441: (Applicants' June 4
Exh. 5, page 3):
The fact of the matter is, if you look around the communities in Oregon,
most churches are located in residential areas. They don't belong in
commercial or industrial areas.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 59
Thus, the Board finds that the proposed church is harmonious with the natural
environment and existing development because its arrangement on the site plan
minimizes its visual impacts and preserves views as much as is reasonably possible
considering that the site plan is for a church of the size that is essential for the
congregation's religious needs and is a building that has been approved as a
conditional use. As the Hearings Officer explained, the test for compliance with this
standard,_ t-waswe stated above and that the Board agrees with, is that DCC
18.124.060(A) is met here because "the applicant has taken sufficient steps to ensure
that impacts do not create any more disharmony than other uses allowed by right or
conditionally in the MUA-10 Zone."
Moreover, the Board finds that the size of the proposed church is well within the size
(including parking) of uses that exist in the surrounding properties area and that the
.-1'rrvi�+ II....... this) + 4 4' L-+ ..1
zoning district allows on a nJ exal l prUyt-1 LY, aJ UI right Il aI lU 1U11UlUUlldIly. I-UrUler,
the Board finds that the church site plan waskiawbwsa designed to blend into the
surrounding properties area within which it will exist. The Board finds that the site
_ plan demonstrates that lights for the church are mitigated and out of the line of sight
of residential uses. On this, the Board notes that there will not be many times when
the parking area is lit at all. The parking area is lit only when the property is used and
then only when it is dark, which is relatively infrequent. The Board finds that light
impacts werebave—b-e-n significantly and adequately minimized. The generous
omni in* of I�nrlci-�r�irirr along +lel. ed ch. ch's ..+..,. I.... U
u� i ivui ii vi iai iu��.a Nn �� alVl I� LII pr vpUJCU ll IUI LI I J pel Ii l ICICI also demonstratesU
that the proposed church's visual impacts wereha-ve-boen mitigated.
Tkw-Boa rd-fan-ws-tbw--t he- -wy-r-e4--d 4-f e -re -we-,- riwtl w ,00sew aha r -c h -a-yawl-aww
a-1 owe-d-gwrj#-a<_irr}-the-M- UA-zorw-is-that-ire-�te-w f-s-hev\/4-rag-h-G-r-s�&,-w &tor4ng-hw
or--a-lag-e a"cc-uph t-h"-rop�os d bwldwg; p e lw wher ti rwte way
The Board reverses the Hearings Officer's denial of the church's site plan because
the church bis -met the standard expressed in DCC 18.124.060(A) as it has been
applied in the past and as it is correctly applied here. The Board also finds that
regardless, the applicants have clearly demonstrated that it has no other reasonable
orllllll IJ to ueve wp II.J LI lural 1 vi lI Ll lc Suuject property tI ldt wnl wetter cuii ipry win t.ne
DCC 18.124.060(A) standard. The church's site pian is approved.37
CHAPTER 18.116 SUPPLEMENTARY PROVISIONS
31 The Board finds that it is irrelevant to this standard whether the church could redevelop its Pettigrew
site to meet its religious needs. The Board also, however, finds in the alternative that the church has
presented i.ghlrlhevidence. which establishes that the church cannot reasonably redevelop
the Pettigrew site to meet its religious needs. See Randy Wills to Board of Commissioners Sept 7, 2018
pages 4, 5.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 60
2. Section 18.116.030. Off Street Parking and Loading.
C. Off -Street Parking Off-street Darkinz spaces shall be provided and
maintained as set forth in DCC 18.116.030 for all uses in all zoning
districts. Such off-street arking spaces shall be provided at the time
a new building is hereafter erected or enlarged or the use of a building
existing on the effective date of DCC Title 18 is changed.
D. Number of Spaces Required. Off-street parking shall be provided as
follows:
4. Places of Public Assembly.
FINDING: The applicants are proposing a 14,560 -square foot church that will include
up to 325 seats. Pursuant to the one (1) space per four (4) seats ratio in DCC
18.116.030(D)(4), the required parking for the church is 82 parking spaces. The
applicants' original site plan dated January 10, 2018 included 118 parking spaces. The
applicants modified the parking plan with the intention to mitigate visual impacts to
surrounding property owners. The revised plan included 99 parking spaces. The
Hearings Officer approved the revised parking plan that included 99 spaces.
However, this reduction will leave "little margin of error" according to the applicants'
traffic engineer, Joe Bessman of Transight Consulting, in his May 8, 2018
supplemental memorandum. Furthermore, Mr. Bessman points out that there are
no overflow parking areas nearby if the 99 -space parking lot is inadequate for the
demand. To prevent overflow parking occurring on Stevens Road, the Board finds
the original proposal of 118 parking spaces is appropriate for the proposed church
use. Together with the additional landscaping discussed below and the lighting plan
approved by the Hearings Officer, Board finds the visual impacts of the slightly larger
parking area will be mitigated.38 As a condition of final approval, the applicants shall
provide a final site plan that illustrates the original 118 parking spaces together with
the revised landscape plan dated August 21, 2018, as discussed below.
38 The Board supports the lighting plan revision generally as presented to the Hearings Officer as an
effort to mitigate impacts to neighboring properties. In his May 5, 2018 letter, Matthew Williams of
CA Rowles Engineering & Design describes the lighting plan revision as the following:
Regarding site lighting, initially, 11 LED light poles, 22.5'tall, were proposed throughout the parking
lot Upon revision 3 LED light poles, 20,O'tall, are proposed across the southwest building elevation,
and the remaining lights are now proposed to be 3.5' bollard lights. Additionally, the easternmost
of the 3 LED light poles has been relocated to the median adjacent to the building, to further screen
light emissions from residential properties to the east. These changes will serve to further limit light
emissions from pole -mounted sources b� reducing both height and quantity of pole mounted lights.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 61
F. Development and Maintenance Standards for Off -Street Parking
Areas. Every parcel of land hereafter used as a public or private
parking area, including commercial parking lots shall be developed
as follows:
1. Except for parking to serve residential uses, an off-street
parking area for more than five vehicles shall be effectively
screened by a sight obscuring fence when adjacent to
residential uses, unless effectively screened or buffered by
landscaping or structures.
The Hearings Officer..-d-mittedll stri led__with__ap.p_I.yin.,a CC1_8,-1_16.030(F,_ and
stated that .if._the hu.rch were_otherwise awroved��tat el t:hatr� dad e ���c�n� �a�k�at
�i-s-st��r-d-�����t-wtawn-�r-e-fe-r�-eed-ro-sc�€eralr� oaf-par-kind-arP-�a.,,}acer�t
fG1 r iC�Eae}ti u 2a„ l��Jeri�Ja-t�Lth.sfi if hn were to otherAliCn nn.,nrnx/n t,h«n--rkii ch -ham
would- -a_additional conditions of approval would be .rewired. 5 ecificallyzthe
Hearirs t�fficer noted conditions of approvol_requring_f�r additional landscaping or
a _sight obscuring fence for-ato screen a particular and very sarea of the parking
lot that was identified by staff (page 28-29 of the Hearings Officer's Decision).area
next to the nrnnnced reserve rlrainfield The Hearings Officer felt this would be
necessary„ because while thisalthough this particular area is adjacent to a
neighboring field, the field is owned by people who occupy a -the nearby residence on
the game nrnnPrty ginra the HP-)ringr Offirpr is rlaniArl tha rhiirrh'c citA nlan thw�
Hearings___Offic:erh-e also denied the Church on his interpretation _of DCC
18.116.0Mth,e-- rias -of --h s-akaove-L riderst di-R-g-of4 is--ta,dam.
Althoul?h the Board did not define further what it means to be "adiacent to residential
use," the Board agrees this criterion can be site specific. The Board is of a similar
opinion with the Hearings Officer in the sense that a parking area is different to other
residential uses in the area and, in some cases, warrants some type of screening from
residential properties. In this case, the Board agrees that screening is necessary for
the most impacted neighboring property, which is located at 61645 Thunder Road
(owners Julie Naslund and Michael Nevill). Thus the Board reverses the Hearings
nffirar'c rlanial rAaarrlina this certinn ac rlicri iccerl heln%A/
At the public hearing on AugYu_st_ 27, 2018, the applicants presented a revised
landscaping plan dated August 21, 2018.39 In addition to the original landscaping plan
submitted with the application, the August 21 revision included supplemental
landscaping plants around the north side of the church building and the parking lot
Furthermore, it provided three screening alternatives for the specific section along
39 The Landscape Design Plan with a revision date of August 21 2018 was created for Father's House
by Springtime Landscaping & Irrigation Inc. and revised by CA Rowles Engineering_
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 62
the northern property boundary that is referenced above. The three screening
alternatives are for a region that is roughly centered along the northern property
boundary and approximately 250 feet in length. The alternatives include the
following: "Alternative A" is comprised of just fencing, "Alternative B" is comprised of
lust landscaping and "Alternative C" is comprised of a mix of fencing and landscaping.
The Board accepts this landscape plan and conditions the approval of said land use
permit based on the collaboration between the applicants and the adjacent property
owner (Naslund and Nevill) to come to a compromise on what is the best alternative(s)
- Alternative A B or C - to reasonably screen the proposed parking area from the
adjacent residential property.
As a condition of approval the applicants shall provide a proof of acceptance by the
neighboring property owner (Julie Naslund and Michael Nevill) regarding the screening
alternative that will be established with the church development.40 Furthermore, the
applicants shall provide a final site plan that illustrates the original 118 parking spaces,
as discussed above together with the revised landscape plan dated August 21, 2018,
and the agreed upon alternative(s) along the north property boundary.
- _..
..
_..,
..
? _ ..
....
.
..
. .. .. . .....
... --
.e . a- -
.,.
-
id M .2 'HIMW.
_. .
--
_. ..
..
.. .. ,.
P ,Qqpntprl
obscuring
At
landscaping.
the public hearing on August
2:7, 2Q18-
..(Alternative
t -.h -;;.t
Ae
-
--e -•
.. ....
of
approval ,.. ...
__
-. .. .. ..
fo r th_ ._
--�_•� -
,..
- -. .
.. _ ..
.e
4nds that
ethprofise
propesed
be
landscaping or fence
able to see the parking area.
ass, the Church
may chose,
will
b.-��te
The -Reard has found in the -ah-A-ve findings that the proposed Church Meem__ -
required COURty standards in dispute -and reverses thp Hearings Officer's denial C4
the proposed Chi arch
V. DECISION
40 If the neighboring property owner is accepting of more than one of the identified screening
alternatives then it is the applicants' prerogative as to what screening alternative is used.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 63
Based on the findings of fact and conclusions of law set out above, the Board hereby
sustains the Hearings Officer approval of the applicants' Conditional Use Permit. The
Board further overturns the Hearings Officer's denial of the proposed Site Plan
Review, , in particular DCC 18.124.060(A) and overturns the Hearings Officer's denial
under DCC 18.116.030(F).
VI. CONDITIONS OF APPROVAL
A. Approval is based upon the submitted application materials as modified by
the Board above.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 64
-- _
WIFIM PRIM.
• _EMMMIF
_•ME U 0 MINE
••
loll
A. Approval is based upon the submitted application materials as modified by
the Board above.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 64
-- _
A. Approval is based upon the submitted application materials as modified by
the Board above.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 64
WIFIM PRIM.
A. Approval is based upon the submitted application materials as modified by
the Board above.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 64
B This approval is for the uses proposed and those listed in ORS 215.441(1) (a) -
(f) but not private or parochial school education for prekindergarten through
grades 12 or higher. It does not authorize operation lease or operation of a
daycare not affiliated with the church.
C Prior to issuance of any building permit for the church the applicants shall
submit to the Planning Division a final site plan including a landscape plan that
illustrates the following:
1. The parking and maneuvering area as illustrated on the lanuary 10
2018 original site plan and includes 118 parking spaces
2 Landscape plan as illustrated on the landscape plan dated August 21,
2018
3 The agreed upon and selected screening alternative - Alternative A, B,
or C - as illustrated on the landscape plan dated August 21, 2018
D Required landscaping shall be continuously maintained and kept alive and
attractive.
E All areas of the property proposed for standing and maneuvering of vehicles
shall be paved surfaced with all-weather materials and will be sloped to allow
for surface water drainage on-site to designated stormwater infiltration basins
and landscape beds Alternatively, the area for standing and maneuvering of
vehicles shall be gravel surfaced and maintained in a matter in which it will not
create dust problems for the neighboring properties
F. Reauired parkin.Rspace shall be available for the parking of operable
passenger automobiles of residents customers patrons, and employees only
and shall not be used for the storage of vehicles or materials or for the parking
of trucks used in conducting the business or used in conducting the business
or use.
C The proposed development and parking area must meet any applicable
provisions of the Americans with Disabilities Act (ADA).
H All walkways that cross driveways parking areas, and loading areas shall be
clearly identifiable using striping or similar method.
Regarding driveway access to Stevens Road, the applicant is subject to the
following requirements:
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 65
1. Prior to issuance of a building permit for the church the applicants
shall obtain a driveway access permit for the proposed access to
Stevens Rd pursuant to DCC 12.28.050 17.48 210 and 18.124.080.
2. Applicant shall meet the requirements for County roads within the
Bend Urban Growth Boundary (UGB) in Section 7 of the "Revised -Joint
Management Agreement Regarding the Area Within the Bend Urban
Growth Boundary" (Commissioners Journal #DC 2017-423)
3. If road improvements are required as a condition of approval based on
City of Bend requirements for roads within the UGB•
a. Applicant shall submit road improvement plans to Road
Department for approval prior to commencement of
construction pursuant to DCC 17.40.020 17.48.060, and
18.124.080.
b. Design and construction of road improvements shall be
according to City of Bend standards and applicable sections of
DCC 17.48 pursuant to DCC 18.124.090.
4. No later than construction of the new driveway access onto
Stevens Road, the applicant shall close the existing driveway access
that serves the existing house to vehicle traffic This former access shall
be converted to a pedestrian pathway, as proposed and clearly marked
as such.
1. In addition to the setbacks set forth herein any greater setbacks required by
applicable building or structural codes adopted by the State of Oregon and/or
Deschutes County under DCC 15.04 shall be met
K. The applicant shall obtain any necessary permits from the Deschutes County
Building Division.
L. All lighting on the subject aroperty shall be reauire_d to comply with ChaDter
15.10 of the Deschutes County Code the Outdoor Lighting Control Ordinance
All ...,�.....:.. .. 1:.-4. a.... ..4 .. 11 L. _I _ _I _1_e _I _�_ _� _ ��_ _ _�•
rill CA6e1 Iyl n�I IUJ Mian be sited and �flle!ded so [nat no direct light proiects Off-
site.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 66
M All signs shall be constructed in accordance with the provisions of DCC 15.08.
Dated this day of December, 2018
BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
Anthony DeBone, Chair
Philip G. Henderson, Vice Chair
Tammy Baney, Commissioner
THIS DECISION BECOMES FINAL WHEN SIGNEDMAILED. 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. Hearings Officer's decision dated July 30, 2018
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 67
Mailing Date
Tuesday, July 31, 2018
HEARINGS OFFICER DECISON
FILE NUMBERS: 247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR
APPLICANT/OWNER: Father's House, Church of God Cleveland
Randy Wills and Jack Miller
61690 Pettigrew Road
Bend, Oregon 97702
PROPOSAL: The applicant requests a conditional use and site plan review to establish
a church in the Multiple Use Agricultural Zone. The applicant also requests
a Lot of Record Verification for the subject property.
STAFF CONTACT: Cynthia Smidt, Associate Planner
HEARINGS OFFICER: Dan R. Olsen
APPLICABLE CODE CRITERIA:
Title 18, Deschutes County Zoning Ordinance
Chapter 18.04.
Title, Purpose and Definitions
Chapter 18.32.
Multiple Use Agricultural Zone
Chapter 18.128.
Conditional Uses
Chapter 18.124.
Site Plan Review
Chapter 18.116.
Supplementary Provisions
Title 22, Deschutes County Procedures Ordinance
BASIC FINDINGS:
This decision incorporates the staff report, with minor edits except for sections labeled "Hearings
Officer".
A. LOCATION: The property is identified on Deschutes County Assessor's Map No. 18-12-02, as Tax
Lot 1205 and has an assigned address of 21420 Stevens Road, Bend.
B. ZONING: Multiple Use Agricultural (MUA-10).
C. SITE DESCRIPTION: The property is approximately 4.98 acres and rectangular. The site has
relatively level topography and is vegetated primarily with native grasses and shrubs and some
juniper trees. It is developed with a 1967 single-family dwelling and a shed in the eastern region of
the property. An irrigation canal crosses the northern half of the property. Stevens Road is adjacent
to the southern property boundary. Thunder Road, a private access roadway, is adjacent to the
eastern boundary. According to the Flood Insurance Rate Map for Deschutes County and the
National Wetlands Inventory, the subject property is not located in the 100 -year flood plain nor does
it contain wetlands.
EXHIBIT "A" TO DOCUMENT 2018-694
E. SURROUNDING LAND USES: The area in the immediate vicinity consists of small farm and rural
and urban residential properties. Rural residential properties are located to the north, east, and west
of the property and are either developed or vacant. Directly south across Stevens Road is a large
parcel under State of Oregon ownership that is currently open space. The western region of the
state-owned parcel together with Stevens Road is located within the Bend Urban Growth Boundary
(UGB) and the eastern region is currently under review for a plan amendment and zone change.'
Approximately 1,400 feet to the west is urban density single-family residential subdivisions such as
Westbrook Village that is within the city limits of Bend. Further to the northwest and east of the
subject property are developed or vacant farm -zoned lands. Adjacent to the south and east property
boundaries are Stevens Road and Thunder Road, respectively. Zoning in the area is a mixture of
Exclusive Farm Use (EFU) and Multiple Use Agricultural and several zoning districts within the City
of Bend such as Public Facility, Residential Standard Density (RS), and Urbanizable Area (UA).
F. PROPOSAL: The applicant is requesting a Conditional Use and Site Plan review to establish a
church on the property. The proposal includes a 14,560 -square foot church building and the use of
the existing dwelling as a parsonage house for a member of the church clergy. The church building
will include a sanctuary to accommodate up to 325 seats, offices, a meeting space, Sunday school
classrooms, bathrooms and storage. The applicant proposes parking and maneuvering area and
designated landscaped areas. The original parking plan showed 118 spaces. A revised preliminary
site plan dated 5/4/18 (Open Record App. Exh. 6) reduced parking to 99 spaces with 4,879 sq. ft. of
landscaping in the parking area. A revised landscape plan dated 5/4/18 also was submitted. The
primary access will be from Stevens Road which will be relocated west, and the former access will
be converted to a pedestrian pathway. The church use will occur primarily on Sunday. Other uses
accessory to the church will occur on Sunday or other days of the week including Sunday school,
youth group, Bible studies, weddings, and administrative meetings.
Hearings Officer: Concerns were raised about whether the applicant intended to permit operation
orl, a day Gare VI pl eslhoof. TMc appl'ant nlriCpA +kq+ cj ink nr%oro+inne nrn nn+ nor+ of +hic nnnlnafnn
%ACA1 Ii�U a IUL oUvl i vN�l v• Nu p.r...... ......
My understanding is that a separate application would be required to expand the use in this manner.
G. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several agencies and
received the following comments:
1. Bend Fire Department: Comments were submitted by Larry Medina, Deputy Chief/Fire Marshal
on February 14, 2018. Mr. Medina's comments are below.
FIRE APPARATUS ACCESS ROADS:
• Approved vehicle access for fire fighting shall be provided to all
construction or demolition sites. Vehicle access shall be provided to within
100 feet of temporary or permanent fire department connections. Vehicle access
shall be provided by either temporary or permanent roads, capable of supporting
vehicle loading under all weather conditions. Vehicle access shall be maintained
until permanent access roads are available. 2014 OFC 3310.1
• Approved fire apparatus access roads shall be provided for every facility, building
or portion of a building hereafter constructed or moved into or within the
jurisdiction. The fire apparatus access road shall comply with the
requirements of this section and shall extend to within 150 feet of all
portions of the facility and all portions of the exterior walls of the first story
' A zone change and comprehensive plan amendment proposal is currently under review by the County through file
numbers 247 -17 -000726 -PA and 247-17-000727-ZC.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 2
EXHIBIT "A" TO DOCUMENT 2018-694
of the building as measured by an approved route around the exterior of the
building or facility. 2014 OFC 503.1.1
Fire apparatus roads shall have an unobstructed width of not less than 20
feet, exclusive of shoulders, except for approved security gates in accordance
with Section 503.6, and an unobstructed vertical clearance of not less than 13
feet 6 inches. Where a fire hydrant is located on a fire apparatus road, the
minimum width shall be 26 feet, exclusive of shoulders. Traffic calming along a
fire apparatus road shall be approved by the fire code official. Approved signs or
other approved notices or markings that include the words NO PARKING -FIRE
LANE shall be provided for fire apparatus roads to prohibit parking on both sides
of fire lanes 20 to 26 feet wide and on one side of fire lanes more than 26 feet to
32 feet wide. 2014 OFC 503.2.1, D103.1, 503.4.1, 503.3
Fire apparatus access roads shall be designed and maintained to support
the imposed loads of fire apparatus (60,000 pounds GM and shall be
surfaced (asphalt, concrete or other approved driving surface) as to provide
all weather driving capabilities. Inside and outside turning radius shall be
approved by the fire department. All dead-end turnarounds shall be of an
approved design. Bridges and elevated surfaces shall be constructed in
accordance with AASHTO HB -17. The maximum grade of fire apparatus access
roads shall not exceed 10 percent. Fire apparatus access road gates with electric
gate operators shall be listed in accordance with UL325. Gates intended for
automatic operation shall be designed, constructed and installed to comply with
the requirements of ASTM F 2200. A Knox® Key Switch shall be installed at all
electronic gates. 2014 OFC D102.1, 503.2.4,
FIRE PROTECTION WATER SUPPLIES:
An approved water supply capable of supplying the required fire flow for
fire protection shall be provided to premises upon which facilities, buildings or
portions of buildings are hereafter constructed or moved into or within the
jurisdiction.
Fire flow requirements for buildings or portions of buildings shall be determined
by an approved method. Documentation of the available fire flow shall be
provided to the fire code official prior to final approval of the water supply
system.
Where a portion of the facility or building hereafter constructed or moved into or
within the jurisdiction is more than 400 feet from a hydrant on a fire apparatus
road, as measured by an approved route around the exterior of the facility or
building, on-site fire hydrants and mains shall be provided where required by the
fire code official. For Group R-3 and Group U occupancies the distance
requirement shall 600 feet. For buildings equipped throughout with an approved
automatic sprinkler system installed in accordance with Section 903.3.1.1 or
903.3.3.1.2, the distance requirement shall be 600 feet. Fire hydrants shall be
provided along required fire apparatus roads and adjacent public streets. The
minimum number of fire hydrants shall not be less than that listed in table C105.1
of the 2010 OFC. Existing fire hydrants on public streets are allowed to be
considered as available. Existing fire hydrants on adjacent properties shall not
be considered available unless fire apparatus access roads extend between
properties and easements are established to prevent obstruction of such roads.
The average spacing between fire hydrants shall not exceed that listed in table
C105.1 of the 2010 OFC.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 3
EXHIBIT "A" TO DOCUMENT 2018-694
OTHER FIRE SERVICE FEATURES:
New and existing buildings shall have approved address numbers, building
numbers or approved building identification placed in a position that is plainly
legible and visible from the street or road fronting the property. These numbers
shall be Arabic numbers or alphabetical letters. Numbers shall be a minimum 4
inches high with a minimum stroke width of 0.5 inch. Where access is by means
of a private road and the building cannot be viewed from the public way, a
monument, pole, or other sign or means shall be used to identify the structure.
Address numbers shall be visible under low light conditions and evening hours.
Provide illumination to address numbers to provide visibility under all conditions.
Address signs are available through the Deschutes Rural Fire Protection District
#2. An address sign application can be obtained from the City of Bend Fire
Department website or by calling 541-388-6309 during normal business hours.
A KNOX-BOX® key vault is required for all newly constructed commercial
buildings, facilities or premises to allow for rapid entry for emergency
crews. A KNOX@ Key Switch shall be provided for all electrically operated gates
restricting entry on a fire apparatus access road. A KNOX@ Padlock shall be
provided for all manually operated gates restricting entry on a fire apparatus road
and security gates restricting access to buildings.
2. Deschutes County Building Safety Division: Randy Scheid, Building Safety Director, submitted
the following comments on February 9, 2018.
The Deschutes County Building Safety Division 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 pian review.
3. Deschutes County Road Department: Cody Smith, County Engineer, submitted the following
comments on February 20, 2018:
I have reviewed the application materials for the above -referenced file numbers,
proposing a church at 21420 Stevens Road, Bend. The subject property is bordered by
Stevens Road to the south. Stevens Road is a County -maintained urban collector and
currently meets the minimum road design standards for a rural collector road given in
DCC 17.48A along the frontage to the subject property. Please note that DCC 17.48A
does not provide a minimum design standard for urban collector roads outside of the
Tumalo, Terrebonne, or La Pine unincorporated communities. Where it abuts the subject
property, Stevens Road is within the Bend Urban Growth Boundary (UGB), making it
subject to the requirements of the "Revised Joint Management Agreement Regarding the
Area Within the Bend Urban Growth Boundary" (Commissioners Journal #DC 2017-423).
Deschutes County Road Department requests that approval of the proposed land uses
be subject to the following conditions:
• Applicant shall meet the requirements for County roads within the Bend UGB in
Section 7 of the "Revised Joint Management Agreement Regarding the Area Within
the Bend Urban Growth Boundary" (Commissioners Journal #DC 2017-423).
• If road improvements are required as a condition of approval based on City of
Bend requirements for roads within the UGB:
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 4
EXHIBIT "A" TO DOCUMENT 2018-694
o Applicant shall submit road improvement plans to Road Department for
approval prior to commencement of construction pursuant to DCC
17.40.020, 17.48.060, and 18.124.080.
o Design and construction of road improvements shall be according to City
of Bend standards and applicable sections of DCC 17.48 pursuant to DCC
18.124.090.
• Applicant shall obtain a driveway access permit for the proposed access to
Stevens Rd pursuant to DCC 12.28.050, 17.48.210, and 18.124.080.
4. Deschutes County Transportation Planner: On February 14, 2018, Peter Russell, Senior
Transportation Planner submitted the following comments.
I have reviewed the transmittal materials for 247-18-000061-CU/062-SP/063-LR to
develop a 14,560 -square -foot church on an approximately 5 -acre parcel in the Multiple
Use Agricultural (MUA-10) zone at 21420 Stevens Road, aka 18-12-02, Tax Lot 1205.
I agree with the methodology, analysis, conclusions, and recommendations of the
applicant's traffic study, which complies with Deschutes County Code (DCC) at
18.116.310(C).
The applicant should also obtain an access permit from the County to comply with DCC
17.48.210.
Board Resolution 2013-020 sets a transportation system development charge (SDC) rate
of $3,937 per p.m. peak hour trip. The Institute of Traffic Engineers (ITE) trip generation
manual indicates a church (LU 560) generates 0.55 p.m. peak hour trips per 1, 000 square
feet. The church will generate 8 p.m. peak hour trips (14.560 X 0.55); therefore, the
applicable SDC is $31,496 ($3,937X 8). 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 lanrl ujse rle f-lelnn her;nming final
5. Deschutes County Property Address Coordinator: The parcel address may need to be adjusted
depending on the final access point from Stevens Road.
6. The following agencies did not respond or had no comments: Avion Water Company, City of
Bend Planning Department, City of Bend Public Works Department, Central Electric Cooperative,
Central ' Oregon Irrigation District, Deschutes County Assessor, Deschutes County
Environmental Health Division, Deschutes County Environmental Soils Division, Pacific Power
and Light, and Watermaster — District 11.
HEARING:
Hearings Officer: A public hearing was conducted on April 24, 2018. 1 provided the statutorily
required notices. I indicated that I had reviewed the materials on file but had received no ex parte
contacts. I did, however, conduct a site visit. I indicated that I drove into the property from Stevens
Road and observed its topography, size, vegetation and immediate vicinity. I drove along Thunder
Road and observed the residences but did not enter any of those properties. There were no
questions or concerns raised regarding the site visit. I indicated that I had no conflicts of interest.
indicated that I know Anthony Raguine as a Community Development staff member but understood
that he was appearing as a representative of the church, in which he is a congregate. I asked for but
received no procedural or other objections to my proceeding with this matter.
The applicant was represented by Wendie Kellington. William VanVactor appeared as counsel for
Julie Naslund.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 5
EXHIBIT "A" TO DOCUMENT 2018-694
At the end of testimony, the applicant requested to leave the record open as follows, with the
understanding that this tolls the 150 -day decision clock:
May 8, 2018 Submission of new evidence and argument.
May 22, 2018 Submission of evidence and argument responding to evidence
provided during the first open record period.
June 5, 2018 Applicant's final rebuttal (unless waived) but no new evidence.
I noted that all submittals had to be received by County no later than the close of business on the
due date.
On May 18, 1 received an email from Adam Smith, Assistant Legal Counsel indicating that the
applicant had requested that the open record period be reset. My understanding is that Mr.
VanVactor had raised a concern regarding Mr. Raguine using county resources to provide copies of
past hearings officer and Board of County Commissioner land use decisions to Ms. Kellington. (See
below). To address this matter, the parties stipulated to a reset. I issued an order in which I noted
that the applicant had agreed to further extend the 150 -day clock and that the open record period
was re -set as follows:
June 4, 2018 written comments, including new evidence and argument;
June 18, 2018 for rebuttal evidence and arguments in response to written comments received
during the first comment period; and
July 2, 2018 for applicant's final argument (no new evidence).
I indicated that items received during the oriainal comment period need not be resubmitted. and are
included in the record, subject to specific objections, if any.
Apparently, there were some communications between Mr. VanVactor or other opponents and staff
regarding the application of this re -set. I issued an email on May 31 explaining that the material
submitted during the original open record period was to be treated as if it had been submitted at the
hearing for purposes of the new open record period. Anyone could respond to that information during
the new first open record period. There were no objections.
The parties submitted a great deal of material during the new open record period, but I have not
located any specific objections to the submittals.
J. PROCEDURAL CONCERNS
Hearings Officer: The record contains a series of emails regarding whether documents were timely
and fully shared between the attorneys in accordance an agreement they apparently made. I
received no objections regarding this issue. See e.g. Wendie Kellington June 11, 2018 email, Julie
Naslund June 13, 2018 letter.
A June 4, 2018 submittal signed by Julie Naslund and purporting to be on behalf of several other
neighbors expresses "deepening concern around the fairness of this application process." They
allege a "conflict of interest" arising from the "collaboration" of Mr. Raguine with the applicant and
that the applicant derived an "unfair advantage" due to Mr. Raguine's deep knowledge of county
records and procedures." They suggest that I consider whether the process should be allowed to
continue.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 6
EXHIBIT "A" TO DOCUMENT 2018-694
I am aware of nothing supporting a conclusion that the rights of the opponents have been
substantially prejudiced. All documents obtained by Mr. Raguine were shared and the open record
period extended per the stipulation of counsel for the applicant and Ms. Naslund. Mr. Raguine has
submitted no testimony since the hearing. Staff did not make a recommendation on several of the
more contested criteria and has not substantively commented on the application or submittals since
the hearing.
111. FINDINGS AND CONCLUSIONS:
Title 18, Deschutes County Zoning Ordinance
A. CHAPTER 18.04. TITLE, PURPOSE AND DEFINITIONS
1. Section 18.04.030. Definitions.
As used in DCC Title 18, the following words and phrases shall mean asset forth in DCC
18.04.030.
"Lot of Record" means:
A. A lot or parcel at least 5,000 square feet in area and at least 50 feet wide, which
conformed to all zoning and subdivision or partition requirements, if any, in effect on
the date the lot or parcel was created, and which was created by any of the following
means:
1. By partitioning land as defined in ORS 92,
2. By a subdivision plat, as defined in ORS 92, filed with the. Deschutes County
Surveyor and recorded with the Deschutes County Clerk;
3. By deed or contract, dated and signed by the parties to the transaction, containing
a separate le -gal doe Jcr iption of the l�f ^r. parcel w nd re�AI'f�1�ed in Deschutes � mInty
if recording of the instrument was required on the date of the conveyance. If such
instrument contains more than one legal description, only one lot of record shall
be recognized unless the legal descriptions describe lots subject to a recorded
subdivision or town plat;
4. By a town plat filed with the Deschutes County Clerk and recorded in the Deschutes
County Record of Plats; or
5. By the subdividing or partitioning of adjacent or surrounding land, leaving a
remainder lot or parcel.
B. Notwithstanding subsection (A), a lot or parcel validated pursuant to ORS 92.176 shall
be recognized as a lot of record.
C. The following shall not be deemed to be a lot of record:
1. A lot or parcel created solely by a tax lot segregation because of an assessor's roll
change or for the convenience of the assessor.
2. A lot or parcel created by an intervening section or township line or right of way.
3. A lot or parcel created by an unrecorded subdivision, unless the lot or parcel was
conveyed pursuant to subsection (A)(3) above.
4. A parcel created by the foreclosure of a security interest.
FINDING: The Planning Division has reviewed the information submitted with the application, as
well as County records, and has made a decision that Tax Lot 1205 is one (1) legal lot of record.
Deschutes County adopted its first zoning ordinance (PL -5) on November 1, 1972, which
described minimum lot sizes for new parcels. This zoning ordinance was replaced in 1979 with
PL -15. The subdivision ordinance of 1970, PL -2, regulated subdivisions less than 10 acres in
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 7
EXHIBIT "A" TO DOCUMENT 2018-694
size but did not regulate partitions. The partition ordinance (PL -7) was adopted in 1977, which
described the criteria under which parcels could be partitioned (divided).
Tax Lot 1205 was first conveyed in its current configuration in a Quitclaim Deed dated September
29, 1972 and recorded in Volume 189, Page 495 at the Deschutes County Clerk's Office. At the
time of the deed being recorded, there were no requirements for land partitions nor were there
any used to regulate zoning and minimum .lot sizes. Tax lot 1205 is 4.98 acres (216,928.8 square
feet) in size and over 50 feet in width and thus meeting the definition of a lot of record above (at
least 5,000 square feet in area and 50 feet wide). Based on these findings, Deschutes County
recognizes tax lot 1205 as a legal lot of record.
"Church" means an institution that has nonprofit status as a church established with the
Internal Revenue Service.
FINDING: The applicant proposes to establish a church on the subject property. According to
the applicant, Father's House, a subordinate of Church of God Cleveland, has status as a
religious nonprofit organization under 501(c)(3) with the Internal Revenue Service. Staff finds,
and I concur, that the proposed use is a church as defined in DCC 18.04.
B. CHAPTER 18.32. MULTIPLE USE AGRICULTURAL ZONE
1. Section 18.32.030. Conditional Uses Permitted.
The following uses may be allowed subject to DCC 18.128.
W. Churches, subject to DCC 18.124 and 18.128.080.
01KInING. The �nnlirnnf nrnnnccc to estnhlich n rill Ir! h nn the c IhIA(:t nrnnArty. As noted
previously, the proposed Father's House Church is a church as defined in DCC 18.04.030 and
thus can be allowed pursuant to applicable approval criteria. Compliance with DCC 18.124, Site
Plan Review, and DCC 18.128, Conditional Uses, is addressed below.
2. Section 18.32.040, Dimensional Standards.
In an MUA Zone, the following dimensional standards shall apply.
D. Building height. No building or structure shall be erected or enlarged to exceed 30 feet
in height, except as allowed by DCC 18.120.040.
FINDING: The applicant provided elevation drawings illustrating that the proposed church
building will be approximately 29.8 feet (29 feet, 10 inches), thus meeting the 30 -foot height limit.
Comments submitted on March 8, 2018 by neighboring property owners, Julie Naslund and John
Schaeffer express concern regarding the overall size of the proposed development in
comparison to the surrounding residential development, projecting the proposal will encompass
at least 50 percent of the subject property. As this relates to lot coverage criterion, staff notes
that the MUA-10 Zone does not have a lot coverage requirement unlike the Rural Residential
Zone, which limits coverage to 30 percent of the total lot area (DCC 18.60.060(A)). Concerns
over the overall size impact to the surrounding area are addressed below.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 8
EXHIBIT "A" TO DOCUMENT 2018-694
3. Section 18.32.050. Yards.
A. The front yard setback from the property line shall be a minimum of 20 feet for property
fronting on a local street right of way, 30 feet from a property line fronting on a
collector right of way, and 80 feet from an arterial right of way unless other provisions
for combining accesses are provided and approved by the County.
FINDING: The subject property is adjacent to Stevens Road and Thunder Road to the south
and east, respectively. Stevens Road is classified as an urban collector road and Thunder Road
is classified as a local access road. The required front yard setback from Stevens Road is 30
feet and 20 feet from Thunder Road. The proposed church building will be setback approximately
95 feet north of Stevens Road and 165 feet west of Thunder Road. The existing single-family
dwelling proposed to be a parsonage has setbacks of approximately 74 feet and 64 feet from
Stevens Road and Thunder Road, respectively. The front yard setbacks for both the proposed
church building and existing dwelling comply with the setback standards of the MUA-10 Zone.
B. Each side yard shall be a minimum of 20 feet. For parcels or lots created before
November 1, 1979, which are one-half acre or less in size, the side yard setback may
be reduced to a minimum of 10 feet. For parcels or lots adjacent to property receiving
special assessment for farm use, the adjacent side yard for a dwelling shall be a
minimum of 100 feet.
FINDING: Based on the shape of the property and the adjacent roadways, staff finds the
northern property boundary is considered the side property line and the western boundary is the
rear property line. The County Code requires minimum yards of 20 feet from side property lines.
The proposed church building will have a side yard setback of approximately 40 feet from the
north property boundary. The single-family dwelling proposed to be a parsonage has an existing
_: _ �� . ,,i, ,.� over �1'7n f.,.,+ fr'.m +ho nnr+horn hni inrioni The cmc vni rA cothnrrk fnr hath
side yard setback V1 ove1 I I v feet from Ll is I 1%J1 Ll 1�l I I vWWi 1 w,y. I I w v� yup.. . .......
the proposed church building and existing dwelling comply with the setback standards of the
MUA-10 Zone.
C. Rear yards shall be a minimum of 25 feet. Parcels or lots with rear yards adjacent to
property receiving special assessment for farm use, the rear yards for a dwelling shall
be a minimum of 100 feet.
FINDING: As indicated in the foregoing finding, staff finds the western property boundary to be
considered the rear property line. The County Code requires minimum yards of 25 feet from rear
property lines. The proposed church building will have a rear yard setback of over 300 feet from
the west property boundary. The single-family dwelling intended to be the parsonage has an
existing rear yard setback of over 480 feet from the western boundary. The rear yard setback for
both the proposed church building and existing dwelling comply with the setback standards of
the MUA-10 Zone.
D. The setback from the north lot line shall meet the solar setback requirements in DCC
18.116.180.
FINDING: The 29.8 -foot tall church will require a solar setback of 70.4 feet from the northern
property boundary (the solar setback of 70.4 feet would translate to a perpendicular
measurement from the northern property boundary of approximately 61.6 feet). As proposed, the
proposed church building will observe a setback of 40 feet from the north property boundary.
However, the ridge, which is used for the basis of solar setback measurements, will be setback
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 9
EXHIBIT "A" TO DOCUMENT 2018-694
at least 65.6 feet from the north property boundary. Therefore, the proposal complies with solar
setback standards of DCC 18.116.180(B).
C. CHAPTER 18.128. CONDITIONAL USES
1. Section 18.128.015. General Standards Governing Conditional Uses.
Except for those conditional uses permitting individual single-family dwellings,
conditional uses shall comply with the following standards in addition to the standards of
the zone in which the conditional use is located and any other applicable standards of the
chapter.
A. The site under consideration shall be determined to be suitable for the proposed use
based on the following factors:
1. Site, design and operating characteristics of the use
FINDING: The applicant is proposing a church on the subject property. The property is
approximately 4.98 acres and has relatively level topography. The vegetation on-site is primarily
native grasses and shrubs and some juniper trees. The eastern portion of the site is developed
with a single-family dwelling established in 1967 and shed. An irrigation canal crosses the
property in the northern half of the property. Stevens Road is adjacent to the southern property
boundary. Thunder Road, a private access roadway, is adjacent to the eastern boundary.
Access to the property is taken from an existing point along Stevens Road.
The proposed church will be centrally located on the property and west of the existing dwelling.
It will be 14,560 square feet and able to accommodate up to 325 parishioners. The church
building will also include offices, a large meeting area, Sunday school classrooms, bathrooms,
and storage space. The existing dwelling will be converted to a parsonage intended for church
clergyDnmr� 1 of aionoi�iinn %AA11 nnly nnr•I Ir 1AMkin fko Aehllolnnmcnf nren rUkcneiioo m041 irc
. I\�l7wVGil %J1 VGy%,LCduvll VVIII viny v Ul VVIUIIII Lill Ml VVIWVIIIl�I1lCAI vU—VVwv, Illawaaaly
juniper trees and other vegetation and existing topography throughout the property will be
retained. Parking is proposed in front of the building, facing Stevens Road. The western portion
is the septic field, with a northern portion containing the reserve septic field. Introduced
landscaping beds will also be provided around and throughout the parking area and around the
back of the church. The primary driveway access from Stevens Road will be relocated west and
the former access will be converted to a pedestrian pathway. According to the applicant, the
church use will occur primarily on Sunday with uses accessory to the church occurring on Sunday
or other days of the week. The accessory uses include Sunday school, youth group, Bible
studies, weddings, and administrative meetings.
Hearings Officer: Opponents contend that the site is not suitable due to its size, topography,
location and other factors in relation to this specific proposal. The site itself is suitable for a church
and parsonage. It is large enough to accommodate the proposed church and has no topographical
or other physical constraints. It has access to a collector street with good site distance. Whether the
proposed church is suitable for this site in the sense of being compatible or relating harmoniously
or with other uses and properties or otherwise complies with applicable standards is discussed
below.
2. Adequacy of transportation access to the site, and
FINDING: The subject property is adjacent to Stevens Road to the south and Thunder Road to
the east. The access to the property is taken from Stevens Road, a "collector". The applicant is
proposing to relocate the existing driveway access west based on conversations with the Senior
Transportation Planner and County Road Department. The old access point will be converted to
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 10
EXHIBIT "A" TO DOCUMENT 2018-694
a pedestrian pathway while the new access will have a width of approximately 35 feet, allowing
for two-way traffic with an outbound right turn and left turn, and inbound lane. The applicant
provided a January 15, 2018 Site Traffic Report (STR) dated January 15 and prepared by
Transight Consulting, LLC. that "found no indication of crash history on adjacent roadways and
no sight distance conflicts or impediments at the existing access point." In addition, the County
Road Department and Senior Transportation Planner agreed with the report's findings and did
not identify transportation infrastructure deficiencies. Numerous comments were submitted to the
record regarding the traffic impacts to adjacent roadways and nearby intersections (e.g. the
intersection of Stevens Road and SE 27th Street to the west). Transportation and traffic related
criteria are also addressed below in DCC Sections 18.128.080(B)(3) and 18.124.060(K).
Hearings Officer: Staff appears to have found that this criterion is met but, after noting the
comments received, suggests that this criterion be a focus of my review. The opponents did not
present professional analysis of the adequacy of transportation access to the site. Rather, their
comments are anecdotal based on their experience and impressions. In a Feb 2, 2018 letter,
Mr. Kasmeyer states that ingress and egress from Thunder Road already is dangerous as traffic
on Stevens travels over 50 mph despite the posted 45 mph limit. Several commenters suggest
that the STR should consider construction detours, bike traffic and other concerns. They note
that there likely will be well over 100 trips for Sunday services. They suggest that there will be
adverse impacts on the intersection of Stevens Rd. and 27th St. in the City of Bend.
The STR indicates an ITE estimate of 101 daily trips with 7 weekday PM peak hour trips. Most
would come from and exit to the west, away from Thunder Road. There were no reported crashes
between 2011 and 2015. Sight lines exceed AASHTO minimums and sight distances were found
adequate assuming 55 MPH speeds.
Stevens is an urban collector with sufficient capacity. While there may be short surges during
nff_nAnk hni irc ci inh aq Si inrinv mnrninnS thev annear to he no more than those tvnically
.... p....,... .....,.. .. ., ....... ...-'- '----- ------ yr -----
associated with a church.
The City of Bend was notified of the proposal and staff reached out to the City to ensure that it
had no comments. Further, the Joint Management Agreement expressly provides Bend with an
opportunity to seek road improvements and requires that they meet City standards. No
comments or road improvement requests were received, suggesting that the intersection impacts
alleged within the City are not a significant concern to the City. Staff testified that the site is within
the urban area reserve 10 and the property to the south is within the Bend UGB. There was
testimony regarding master planning of that site for urban development. Any such development
likely would have to address ensuring that Stevens Rd is suitable for urban levels of traffic.
Further, since this criterion relates to transportation access to the site, it does not appear to
address off-site impacts, especially those some distance away.
I find that the applicant has met its burden that the transportation access is adequate.
3. The natural and physical features of the site, including, but not limited to, general
topography, natural hazards and natural resource values.
FINDING: The proposed church, including buildings and parking and maneuvering areas, will
be in an area that has relatively level terrain. Vegetation on-site includes native grasses and
shrubs with a few juniper trees. The property is developed with an existing single-family dwelling,
access driveway, parking area, and an accessory structure (shed). There are no known natural
hazards, except for wildfire, or distinguishing natural resource values on property. Submitted
comments by neighboring property owners place value in the natural landscape, vegetation, and
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 11
EXHIBIT "A" TO DOCUMENT 2018-694
wildlife. Although staff respects the neighbors' concerns, staff reviews the site as suitable and
not hindered by natural and physical features such as wetlands, rivers, and rimrock, which this
site does not contain. Staff believes there are no natural or physical features on the site that will
prevent the proposed church use.
Hearings Officer: I concur, while the flat topography and limited vegetation are relevant to other
criteria, this criterion is met.
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).
Hearings Officer: Staff summarized the area as follows:
Existing and projected uses on surrounding properties consist of a mixture of rural residences
and small-scale farms, as well as urban density development. The closest residential
developments to the proposed church building are approximately 115 feet to the north and
approximately 430 feet to the west and east. Adjacent to the south and east property
boundaries is Stevens Road and Thunder Road, respectively. The Bend UGB is located
adjacent to the southern property boundary and includes Stevens Road and the western
portion of a large parcel under State of Oregon ownership. The area within the UGB is
currently zoned Urbanizable Area, which is currently open space but is intended to be used
in the future for urban development once annexed into the city limits. The eastern region of
the large parcel is currently under review for a plan amendment and zone change from farm
to residential. The city limits of Bend and related urban density residential development is
located west of the subject property approximately 1,400 feet. To the northwest and east of
the subject property are developed or vacant farm -zoned lands. The vegetation and
topography on the subject property is similar throughout the surrounding area with native
shrubs, and ^4hor ~^1InAr%0wnr hi it 17nitc onv cinnifinnnt nnnl Ilatinn of trap- cnarlp-c
grasses,JI IIUVJ, aIIV V111r..1 yl Vol IUvW �l ...Va 14 u y v y • Nv N. — .. -_
--.
The projected land uses based on the current zoning will likely be similar to those already
established such as single-family dwellings, agricultural uses, and urban density
development.
It is necessary to address the meaning and applicability of this criterion before addressing the
applicant's position and the concerns voiced by opponents. Staff notes that hearings officer
decisions consistently have concluded that this criterion is intended to "require that the existing
and projected 'use' on surrounding lands will be allowed to continue". In other words, would the
proposal preclude or severely impact whether surrounding properties may continue to be used
for their existing use or develop in accordance with the Code? In the context of a cell tower, for
example, it has been stated that:
I understand the neighbors' concerns about the appearance of the tower in their
neighborhood. However, the existence of the tower will not so much affect the use, but the
enjoyment of their properties. This criterion is concerned mainly with making the proposed
use compatible with other uses. There is no evidence in the record that the proposed
monopole will impact the ability of current neighbors to use their properties for all the
residential and associated uses that they now enjoy. CU -12-15, citing and referencing CU -
09 -36, CU -11-14, CU -08-79.
I have applied this criterion in a similar manner in other decisions, including other than cell towers.
Mr. VanVactor takes issue with this interpretation. He argues that such a limited application
makes the criterion "more or less meaningless" because it is hard to conceptualize a proposal
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 12
EXHIBIT "A" TO DOCUMENT 2018-694
that would be so incompatible as to preclude use of other properties absent an encroachment or
similar issue. See, April 24, 2018 letter.
The applicant urges that I continue the historic interpretation of this criterion. Father's House
asserts that this is particularly appropriate given the special status enjoyed by churches under
the Religious Land Use and Imprisoned Persons Act (RLUIPA). See e.g. April 23, 2018 letter.
Somewhat surprisingly, there continues to be no case law and no definitive Board of
Commissioners' decision addressing this criterion. I find that the arguments made by the
opponents do not warrant overturning its historic application. Terms such as "compatible" are
notoriously subjective and difficult to apply consistently. While one can argue that the historic
interpretation is too crabbed, it provides a relatively clear guidepost. There are conditional uses
listed in the MUA10 zone that one easily can envision being so incompatible as to impair the use
of property for residential purposes. See e.g. exploration and processing of minerals, landing
strips, landfills, mining. It also provides a basis for distinguishing this criterion from the "relate
harmoniously" criterion.
Mr. VanVactor argues that, even under the historic interpretation, the proposal is incompatible
with the rural residences in the area. He notes that it is much large and more intense, akin to a
commercial use which generally are not allowed in the MUA-10 zone. There is no doubt that the
church will be the most prominent developed feature for the foreseeable time and impact views.
But I find no evidence in the record suggesting that the impact on the surrounding residences
would be so great as to substantially interfere with or preclude residential use.
Churches are a conditional use in the zone, so they clearly are contemplated. Another, perhaps
broader, application of the criterion would be to assess whether the proposal at issue greatly
exceeds the scope and impacts of a typical church or whether there is something so unique
aLOU4- +4..�. +ham+ ---n o "4v ipnl" phi Irrh 1ni I�ld he in�om^atihle Tills Ic nit a "mPfta_Rh� �rrh"
Li L he area that GVG11 a LypIVGI VIIGIVII �•/ eyn
The proposal is well within the setbacks and other dimensional limits in the zone. Unlike some
other zones, this zone has no maximum lot coverage or structure size. As discussed below,
although perhaps somewhat larger than.necessary it is not significantly disproportionately larger
than other churches referenced in the record. Nor is the church proposing activities that are not
typically associated with a church'including youth classes, weddings, funerals, occasional large
events etc. The proposal is on an urban collector, has nominal peak hour transportation impacts
and otherwise typical transportation impacts. The applicant has proposed landscaping and
screening exceeding code requirements. I agree with staff that the exterior lighting as revised
appears to be typical of uses such as a church. It will comply with the lighting requirements of
DCC Chapters 18.124 and 18.116 and the County's Outdoor Lighting Ordinance of DCC 15.10,
with are addressed below. Finally, although the site and the area pose difficulties for the applicant
in meeting DCC 18.124.060 A., it appears to be typical of much of the rural area so raises no
significantly unique compatibility issues.
Neighbors have expressed concerns about property values diminishing once the use is
established. However, the record does not contain evidence that property values would decrease
or that the ability to sell a home in the neighborhood would be impacted as result of allowing the
proposed church use, especially that the impact of this proposal would be greater than any other
church.
This criterion also requires consideration of projected uses on surrounding properties. This area
is near the Bend city limits and urban growth boundary. The property immediately south is on its
way to rather intense urban development although the scope and timing is unknown. That
development is likely to impact the rural character of the area, traffic, potentially views, night sky
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 13
EXHIBIT "A" TO DOCUMENT 2018-694
and other attributes valued by the opponents. The church likely will conveniently serve this newly
developing area. A church is consistent with such future development and arguably provides a
transition between the rural residential uses and the coming urban development. This criterion is
met.
C. These standards and any other standards of DCC 18.128 may be met by the imposition
of conditions calculated to insure that the standard will be met.
FINDING: Conditions of approval are imposed to lessen impacts on surrounding properties.
2. Section 18.128.040. Specific Use Standards.
A conditional use shall comply with the standards of the zone in which it is located and
with the standards and conditions set forth in DCC 18.128.045 through DCC 18.128.370.
FINDING: The church is proposed within the
Officer review compliance with the standards
conditions set forth in DCC 18.128.080.
MUA-10 Zone. Staff recommends the Hearings
of the MUA-10 Zone and with standards and
3. Section 18.128.080. Church Hospital Nursing Home Convalescent Home, Retirement Home.
A. Such a use shall be authorized as a conditional use only upon finding that sufficient
area is provided for the building, required yards and off-street parking. Related
structures and uses such as a manse, parochial school or parish house are considered
separate uses and additional lot areas shall be required therefore.
FINDING: As discussed in a foregoing finding, the 4.98 -acre parcel is large enough to
4 A teinc+n r cnnCa1
accommodate
the proposed 11+,50660 -square
Foo� church, para�nano, vli-ILw .-l-
-1-V-- I
system, 118 -space parking and maneuvering area, and landscaping areas, and meet the MUA-
10 setbacks. Therefore, staff believes this criterion is satisfied. No other structures or uses of the
site is proposed.
Hearings Officer: Concerns were raised about additional uses such as a day care or school.
The applicant clarified that it is not proposing a school and concurred that any such use would
require a separate approval in the form of a modification or new use. It currently leases space to
an independent day care but does not propose to carry that over to this site. Presumably an
independent day care would require additional approvals also.
The applicant expressed concern that this criterion was being used in support of the opponent's
arguments that the site is too small and the proposal too large. Counsel for the applicant argues
that this section improperly discriminates against churches. First, I see this standard as primarily
technical and not dealing with offsite impacts. Counsel for the Naslunds does not argue
otherwise. Second, I concur with staff that the site is large enough for the proposed uses.
Accordingly, I do not need to reach the discrimination issue.
B. The applicant shall address the following issues in the application:
1. Probable growth and needs thereof.
FINDING: According to the applicant, the current average attendance of Father's House church
at its 61690 Pettigrew Road location, is 200 persons. As proposed, the church will accommodate
264 seats but can expand to 325 seats. As proposed, staff believes the proposal will
accommodate the demand for growth and I concur.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 14
EXHIBIT "A" TO DOCUMENT 2018-694
Z Site location relative to land uses in the vicinity.
FINDING: As noted previously, land uses on abutting and nearby properties in the area
surrounding the subject property consist of a mixture of rural residences and small-scale farms,
as well as urban density development to the west. In addition, the Bend UGB is located adjacent
to the southern property boundary and includes Stevens Road and a portion of a large parcel
under State of Oregon ownership. The area within the UGB is currently within the Urbanizable
Area Zone. The purpose of the UA zoning district is "to preserve large areas of undeveloped or
rural land for future urban development prior to annexation" and thus is expected to provide
additional urban levels of residential development in the future. The applicant proposes to site
the new church building just east of center on the property. The proposed church building will be
oriented southwest, with the rear of the building facing the properties to the north. At its closest
reach, the building will be located approximately 115 feet from the nearest dwelling to the north.
The applicant states "The proposed church location will provide convenient access to the public,
particularly considering the fact the existing Father's House church is located less than one (1)
mile to the northwest of the subject property."
Neighboring property owners believe the proposed church building will be incompatible with the
surrounding rural residential development and would have an unfavorable relation to land uses
in the vicinity. Furthermore, comments suggest the site location of the church should be located
within city limits to the west.
Hearings Officer: The applicant has addressed the site location relative to uses in the vicinity.
This section contains no standard against which to apply that information. It appears to be a
requirement to provide information to assist in application of the discretionary criteria in the code.
The applicant has submitted site plans, area maps, discussion of existing and future uses in the
area and other information sumcieni for use pucuc �U unUt!IbLdI1U ll IC proposal al IU IUr Ilile w apply
the criteria.
3. Conformity with Deschutes County Road Department standards for proposed access
to and from principal streets and the probable effect of the proposal on the traffic volume
of adjoining and nearby streets.
Hearings Officer: Staff indicates that the applicant designed the project to address concerns
from both the Senior Transportation Planner and County Road Department. This includes
relocating the access west and eliminating the existing access. The project also limits the number
of service drives to the parking lot to one, the minimum necessary to serve the church site. This
one service drive will also provide access to the parsonage.
The applicant provided a site traffic report dated January 15, 2018 and prepared by Transight
Consulting, LLC. The County Road Department and Senior Transportation Planner agreed with
the report's findings and did not identify transportation infrastructure deficiencies. All site distance
and similar safety standards are met.
As previously indicated, Stevens Road is a County -maintained urban collector. In this location,
the road is also located within the Bend UGB and thus subject to the requirements of the Revised
Joint Management Agreement, as noted above. The City of Bend — Planning Division and Public
Works Department — was provided notice but did not present comments or concerns regarding
the proposed church use.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 15
EXHIBIT "A" TO DOCUMENT 2018-694
Neighboring property owners submitted comments anecdotal concerns regarding concerning
traffic impacts to adjacent roadways and nearby intersections and noted the increased vehicle
and bicycle traffic on Stevens Road within the last few years. It was noted that vehicles often
exceed the 45 -mph speed limit but the SRA uses a higher speed limit. This criterion is met.
C. Such uses or related buildings shall be at least 30 feet from a side or rear lot line.
FINDING: The proposed church use, including parking and maneuvering areas, landscaping,
pedestrian walkways, and the parsonage and church buildings, will be sited approximately 40
feet and 60 feet from the north side lot line and west rear lot line, respectively.
D. Except as provided in Section 18.80.028 of the A -S zone, such uses may be built to
exceed the height limitations of the zone in which it is located to a maximum height of
50 feet if the total floor area of the building does not exceed the area of the site and if
the yard dimensions in each case are equal to at least two-thirds of the height of the
principal structure.
FINDING: As proposed, the church building will not exceed the 30 -foot height limit of the
underlying MUA-10 Zone. This criterion is not applicable
E. Churches in the Wildlife Area Combining Zone are subject to the provisions of DCC
18.88.2
FINDING: The proposed church is not located within a Wildlife Area Combining Zone and
therefore, this criterion does not apply.
D. CHAPTER 18.124. SITE PLAN REVIEW
1. Section 18.124.030. Approval Required.
A. No building, grading, parking, land use, sign or other required permit shall be issued
for a use subject to DCC 18.124.030, nor shall such a use be commenced, enlarged,
altered or changed until a final site plan is approved according to DCC Title 22, the
Uniform Development Procedures Ordinance.
B. The provisions of DCC 18.124.030 shall apply to the following:
1. All conditional use permits where a site plan is a condition of approval;
2. Multiple family dwellings with more than three units;
3. All commercial uses that require parking facilities;
4. All industrial uses;
5. All other uses that serve the general public or that otherwise require parking
facilities, including, but not limited to, landfills, schools, utility facilities, churches,
community buildings, cemeteries, mausoleums, crematories, airports, parks and
recreation facilities and livestock sales yards; and
6. As specified for Flood Plain Zones (FP) and Surface Mining Impact Area Combining
Zones (SMIA).
FINDING: The proposed use is a church that serves the general public. The provisions of this
chapter are applicable.
2 The subject application was submitted on January 19, 2018, prior to the removal of this section, DCC 18.128.080(E),
which occurred in February 2018 (Ordinance 2018-003).
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 16
EXHIBIT "A" TO DOCUMENT 2018-694
2. Section 18.124.060. Approval Criteria.
Approval of a site plan shall be based on the following criteria:
A. The proposed development shall relate harmoniously to the natural environment and
existing development, minimizing visual impacts and preserving natural features
including views and topographical features.
FINDING: The property is approximately 4.98 acres. The existing single-family dwelling is
located near the intersection of Stevens Road and Thunder Road. The site has relatively level
topography and is vegetated primarily with native grasses and shrubs and some juniper trees.
An irrigation canal crosses the property in the northern half of the property. Stevens Road and
Thunder Road abut the property to the south and east, respectively. Access is taken from
Stevens Road.
The area surrounding the property consists of small farm and rural and urban residential
properties. Rural residential properties are to the north, east, and west of the property. Directly
west across Stevens Road is a large parcel under State ownership that is currently open space,
but extensive urban development is likely in the future. The western region of the state-owned
parcel together with Stevens Road is located within the Bend Urban Growth Boundary (UGB)
and the eastern region is currently under review for a plan amendment and zone change from
farm use to residential use. The Bend city limits and related urban density residential
development is located west of the subject property approximately 1,400 feet. Farm -zoned
parcels are located northwest and east of the subject property are either developed or vacant.
Hearings Officer: The applicant is proposing a 14,560 -square foot church on the property. It is
slightly below the maximum 30 feet height. The proposal includes converting the existing dwelling
to a church house/parsonage. The existing driveway access will be relocated to the west and the
former driveway will be discontinued by use of vehicles. The church building is shown as centrally
located on the property although toward the northern property line and west of the existing house
and will include a sanctuary for up to 325 parishioners, offices, Sunday school classrooms,
bathrooms, large gathering area and storage space. The applicant proposes locating the parking
lot along Stevens Rd. and has reduced the proposed parking to 99 spaces with a maneuvering
area. The applicant is proposing to remove native vegetation in the development footprint and
introduce landscaping in and around the parking area and around the back of the church. Native
vegetation will be retained in some areas (e.g. eastern region) of the property. No other impacts
to landscape and existing topography are proposed. The applicant proposes exterior lighting,
primarily in the parking area and submitted a revised plan using bollard lights and fewer light
poles. Two septic fields are shown on the western and northern portions of the site.
"Harmoniously" is not defined. Mr. VanVactor quotes Webster's New Twentieth Century
Unabridged dictionary defining "harmonious" as: adapted to each other; having the parties
combined in a proportionate, orderly or congruous arrangement; symmetrical." April 24,2018
letter. The online Oxford Living Dictionary defines it to include "in a way that forms a pleasing or
consistent whole". I have not seen any particularly useful case law defining or applying this term.
As noted in SP -99-44 (Crossroads Community Church, 2/23/2000) this criterion is "highly
subjective" and difficult to apply. In 247 -17 -000319 -CU (Applicant's Post -hearing exhibit 8), 1
concluded that this imposes a somewhat higher standard than "compatibility" as the latter has
been applied. I described it as meaning a "minimum of conflict, discord or similar impacts on
existing development and the environment." The focus is on the design. I stated that "Ultimately,
I think this criterion asks whether the applicant has taken sufficient steps to ensure that impacts
do not create any more disharmony than other uses allowed by right or conditionally in the MUA-
247-18-000061-CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 17
EXHIBIT "A" TO DOCUMENT 2018-694
10 zone or the existing uses." In that case, the proposal was similar to other uses in a heavily
impacted area and the applicant had taken significant steps to mitigate impacts.
Accordingly, it appears to be akin to a design review provision requiring that the applicant
demonstrate that it has taken reasonable and feasible steps to make the use fit into the
neighborhood through design, layout, location and other factors and expressly that the applicant
minimize primarily visual impacts. Also, unlike "compatibility" this criterion considers only existing
development and natural features. Ms. Kellington argues in her June 4, letter that this includes
future development to the south as envisioned in the state's 2007 "Concept Plan". That plan has
not been adopted by the relevant planning entities and the property has not been annexed. I
have no doubt that the area will develop rather intensely at some point, but it cannot be
considered "existing development."
The opponents argue that the size of the structure alone violates this criterion. Mr. VanVactor
notes that the church structure will be several times larger than any of the neighboring
residences. He suggests that existing development in the area generally covers less than 2
percent of the applicable lots while the church, including parking would cover approximately 36
percent. As he notes, there certainly are no large parking lots in the area.
The applicant contends that the size is necessary to accommodate its growing congregation. Its
current location necessitates two Sunday services meaning that the congregation cannot come
together as a whole for fellowship, more volunteers are required, or people must volunteer for
longer periods. The applicant describes its current location as too small to accommodate needed
Sunday school and daycare facilities together and other normal and customary uses.
The applicant cites to other large structures in the area, although there is some dispute as to
whether they all are within one -mile. These include an 11,520 sq. ft. and a 13,104 sq. ft. arena,
a 13,888 sq. ft. farm building in the rural area and large structures in 'Lille urban area, including
an 11,012 sq. ft. church. The applicant notes that single-family dwellings in excess of 10,000 sq.
ft. are not rare in the Bend.
The opponents argue that none of the structures are within a '/4 acre radius which is more
appropriate when evaluating visual and related impacts. They note that the large rural structures
generally are on much larger lots so presumably have less impact on adjacent properties. Others
are lower structures or less visible due to topography.
I agree with the opponents that there is no question that the proposed structure and parking lot
will be the predominant manmade feature within the area in which they reside. There is no
evidence that the nearby vicinity currently is degraded visually or otherwise, unlike for example
the Mazama or Crossroads applications. The existing residences enjoy flat, broad, largely
uninterrupted rural vistas. Some, such as the Lomax's, have mountain views that they contend
will be blocked. The Lakes state that it will block the view of Paulina Peaks and Lava Butte from
their home. The Naslund's territorial and Paulina Peak views would be impacted. April 24, 2018
photos. The applicant provides little if any evidence to the contrary. See e.g. Stevens & Thunder
Road Neighborhood slides.
But there is no maximum structure size in this zone and I decline to find that this criterion prohibits
large structures as such, particularly where the applicant has demonstrated that a structure in
this size range being proposed is generally in line with other churches and is reasonably
necessary to accommodate the use. The current church is 10,000 sq. ft. for a congregation of
200-225 with holiday peaks to 275. The applicant has demonstrated significant operational
constraints. Almost by definition, churches seek out new congregants and it does not seem
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 18
EXHIBIT "A" TO DOCUMENT 2018-694
unreasonable to provide the opportunity to expand to 325 nor is a 99 -space parking lot out of line
for the number of users. Although the relatively nearby church is only 11,012 sq. ft., the approved
Crossroads Church was 14,325 sq. ft. with 134 parking spaces for a current congregation of 200
with expansion to 350. Although information on normal and customary size in relation to
congregation for churches in the area would have been useful, the information in the record
indicates the proposed size is not per se unreasonable.
This is not to say, however, that the footprint and scope could not be reduced without significantly
impacting functionality. Further, to be "harmonious" in this area it is evident that the larger and
more incongruous the structure and parking area the more consideration must be given to
design, layout and locational options to minimize impacts on existing development. In my opinion,
the applicant has failed to meet its burden in this regard. There is nothing in the record suggesting
that the applicant met with neighbors in an effort to evaluate options to address impacts. Gary
Rogers May 8, 2018 letter. There is nothing suggesting that the applicant gave any serious
consideration to reducing the footprint, or different design, layout and placement alternatives in
relation to how they might better blend in and reduce impacts. For example, I asked whether
placing the structure next to Stevens Road might lessen visual impacts by moving it farther away
from nearby residences. The response was that the applicant thought it best to move it as far
away from residences as possible. But a parking lot can largely be screened and, as the applicant
has proposed, lighting made smaller and less intrusive. Perhaps it could be spit up so as not to
create such a large expanse. The applicant states that the location of the "approved" drain fields
limits its options. April 23, 2018 letter. The opponents contend that those were the only areas
tested. There is nothing in the record indicating that they must be located where proposed.
Although the proposed structure meets the maximum height standards, it is not clear why a
peaked roof was chosen; apparently there was no consideration given to a slightly sloped roof,
or a less traditional church design. The mezzanine appears primarily to be for mechanical and
. .. � -r�. _._�_--_-----'- nn L__1__'J_ TI__ -..___L �_u :_ nn r_..a
storage so perhaps coma be eliminated. The entryway is 23 feet wide. he great hall is 63 feet.
I understand that a space for dinners and gatherings is desirable, but perhaps the classrooms
could be multipurpose with movable walls and the footprint of the east -west wing reduced without
significantly impacting functionality. Perhaps larger expanses of windows rather than solid siding
would be less intrusive. Perhaps another building orientation would mitigate impacts.
The only alternative the applicant appears to have considered is the design offered by the
opponents. The applicant adequately explained why it would not reasonably meet its needs.
Rowles May 30, 2018 letter.
It is important to stress that I am not concluding that there is a significantly better alternative. Nor
am I trying to design the facility. But I think the applicant had the burden to demonstrate
reasonable efforts to consider alternatives that would better harmonize its proposal with existing
residences in the area, particularly on this relatively small, flat parcel with no topographical,
vegetative or other natural features to soften its impact. Cf. SP -95-60 (Applicant submitted
revised site plan to address this criterion.)
The applicant states that "We know that the building is an efficient layout that serves the church's
identified needs" and the applicant's primary focus has been on just that. But that is not the test.
The applicant simply never really provided evidence or analysis demonstrating that that it had
made reasonable efforts, including perhaps some trade-offs with its desires, to meet its needs
the most harmonious way reasonably possible. This portion of the criterion is not met.
There is little, if anything, in the record to suggest that the proposal does not relate harmoniously
to the natural environment or preserve natural features on the site, although it has offsite visual
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 19
EXHIBIT "A" TO DOCUMENT 2018-694
impacts as described above. Frankly, the site itself is a typical flat, and parcel with no significant
vegetation. The applicant has proposed more landscaping than the minimum required. This
portion of the criterion is met.
B. The landscape and existing topography shall be preserved to the greatest extent
possible, considering development constraints and suitability of the landscape and
topography. Preserved trees and shrubs shall be protected.
FINDING: The applicant is proposing a church on the property. The proposed improvements will
be sited in areas where no significant landscaping and topography exists. The proposed
development will require removal of vegetation only within the building area. Mature juniper trees
and other vegetation throughout the property will be preserved and protected in its natural state.
No other impacts to landscape and existing topography are proposed. Staff believes this criterion
is met.
C. The site plan shall be designed to provide a safe environment, while offering
appropriate opportunities for privacy and transition from public to private spaces.
FINDING: The proposed site plan design provides a safe environment while offering appropriate
opportunities for privacy and transition from public to private spaces. The design provides a good
separation between automobiles and pedestrians based on the submitted site plan. The applicant
proposes a pedestrian walkway for access to and from the parking area and proposed building
and to Stevens Road. Staff believes this criterion is satisfied.
D. When appropriate, the site plan shall provide for the special needs of disabled
persons, such as ramps for wheelchairs and Braille signs.
a.. ADA
n w :moi_ _�_:�� ..A -A
FINDING: According to the site plan, six fit)) ADA accessible parking spaces wni ue pro'viUUU
adjacent to the front of the church building. The County Building Safety Division will review
specific ADA requirements during building permit review.
Staff comment: Staff recommends this be made a condition of any approval if the application is
approved.
E. The location and number of points of access to the site, interior circulation patterns,
separations between pedestrians and moving and parked vehicles, and the
arrangement of parking areas in relation to buildings and structures shall be
harmonious with proposed and neighboring buildings and structures.
FINDING: Access to the property is taken from Stevens Road, which is adjacent to the southern
property boundary. The existing access, which serves the single-family dwelling (proposed
parsonage), is approximately 160 feet from Thunder Road. This access will be eliminated and
converted into a pedestrian pathway. A new access point is proposed approximately 540 feet
west of Thunder Road and further from the two residences closest (north and east) to the existing
access to be removed. On the property, the proposed location and design of the pedestrian
walkways will provide adequate separation between pedestrians and moving and parked
vehicles. The drive aisles will provide adequate vehicular circulation on-site and convenient
access to the church building and parsonage.
Hearings Officer: The proposed parking area will be located adjacent to the proposed church
and the main area separated from adjacent residential uses by the church building. The revised
site and landscaping plans reduce the number of parking spaces to 99 and increase landscaping
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 20
EXHIBIT "A" TO DOCUMENT 2018-694
both in and out of the parking lot. I find that this criterion is met. I note that this criterion presents
somewhat of a conundrum in that it singles out the parking area for special emphasis. That likely
encouraged the applicant to place the church at the back of the parcel. But I do not think this
criterion obviates the need to consider options and seek to harmonize the overall development
with existing development.
F. Surface drainage systems shall be designed to prevent adverse impacts on
neighboring properties, streets or surface and subsurface water quality.
FINDING: The proposed church use will not significantly increase impervious surface area on
the subject property. The submitted site plan shows the subject property has been designed,
graded, and improved to direct the flow of stormwater to landscaped areas located throughout
the property. Staff believes that the existing and proposed design prevents adverse impacts on
the neighboring properties, streets, and surface and subsurface water quality.
G. Areas, structures and facilities for storage, machinery and equipment, services (mail,
refuse, utility wires, and the like), loading and parking and similar accessory areas and
structures shall be designed, located and buffered or screened to minimize adverse
impacts on the site and neighboring properties.
FINDING: The proposal includes a parking area along the south/southwest side of the proposed
church building, which the applicant states is located as far from adjacent existing residences
as possible." The proposed church building will provide a buffer to the parking area. In addition,
the proposed trash enclosure and mechanical equipment enclosure, located in the northwest and
southeast sides of the proposed structure. Each of these components will be screened by
landscaping and/or fencing, according to the submitted application materials.
Hearings Officer: Again, this criterion may be surnewh L aI uuus with v�.� i o. 141t.vvv vv11ci i
the most prominent and impactful component is the main structure. But it also suggests that,
unlike the proposed structure, parking lots can be screened, landscaped and otherwise designed
to minimize impacts without necessarily putting the structure in back.
H. All above -ground utility installations shall be located to minimize adverse visual
impacts on the site and neighboring properties.
FINDING: No above -ground utility installations are proposed. This criterion does not apply.
1. Specific criteria are outlined for each zone and shall be a required part of the site plan
(e.g. lot setbacks, etc.)
FINDING: Each zone affecting the subject property is identified in this decision. The applicable
criteria for each zone are addressed in the findings above.
J. All exterior lighting shall be shielded so that direct light does not project off-site.
FINDING: The applicant states that any new lighting will be shielded so that direct light does not
project off-site.
Hearings Officer: The applicant revised its lighting proposal to include lower bollard style lights
and minimize the number of poles. I find that this criterion can be met with a condition requiring
shielding and that the applicant have a lighting engineer certify no off-site projection.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 21
EXHIBIT "A" TO DOCUMENT 2018-694
K. Transportation access to the site shall be adequate for the use.
1. Where applicable, issues including, but not limited to, sight distance, turn and
acceleration/deceleration lanes, right-of-way, roadway surfacing and widening,
and bicycle and pedestrian connections, shall be identified.
2. Mitigation for transportation -related impacts shall be required.
3. Mitigation shall meet applicable County standards in DCC 17.16 and DCC 17.48,
applicable Oregon Department of Transportation (ODOT) mobility and access
standards, and applicable American Association of State Highway and
Transportation Officials (AASHTO) standards.
FINDING: As addressed in a foregoing finding, the applicant designed the project to address
concerns from both the Senior Transportation Planner and County Road Department. This
includes relocating the driveway access to the west and removing the existing access closer to
Thunder Road. The number of service drives is limited to one, which is the minimum necessary
to serve the church site. The service drive will also provide access to the parsonage.
A site traffic report dated January 15, 2018 and prepared by Transight Consulting, LLC was
provided by the applicant. Neighboring property owners found deficiencies or errors in the report.
However, the County Road Department and Senior Transportation Planner agreed with the
report's findings and did not identify transportation infrastructure deficiencies. The County Road
Department recommended that any improvements sought by Bend under the Revised JMA be
required but none were received. The only County requirements are payment of SDC's and that
the applicant obtain a driveway access permit for the proposed access to Stevens Rd pursuant
to DCC 12.28.050, 17.48.210, and 18.124.080.
Stevens Road is a County -maintained urban collector. This segment of Stevens Road is located
within the Bend UGB and, as noted by the County Road Department, subject to the requirements
Of the Revised Joint Management Agreement. res nVlCuoted preVivualy, Lim %.ny V1 UVIlu vva0
provided notice but did not provide comments or concerns regarding the proposed church use.
Hearings Officer: For the reasons previously stated, I find that this criterion is met.
3. Section 18.124.070. Required Minimum Standards.
B. Required Landscaped Areas.
1. The following landscape requirements are established for multi -family, commercial
and industrial developments, subject to site plan approval:
a. A minimum of 15 percent of the lot area shall be landscaped.
b. All areas subject to the final site plan and not otherwise improved shall be
landscaped.
FINDING: The proposed church is not considered commercial, industrial, or multi -family
development. Therefore, these criteria are not applicable.
2. In addition to the requirement of DCC 18.124.070(B)(1)(a), the following landscape
requirements shall apply to parking and loading areas:
a. A parking or loading area shall be required to be improved with defined
landscaped areas totaling no less than 25 square feet per parking space.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 22
EXHIBIT "A" TO DOCUMENT 2018-694
FINDING: The proposed church use will require 82 parking spaces', as noted below in this
decision. Therefore, the parking area shall be required to be improved with at least 2,050 square
feet of landscaping to meet this criterion (82 * 25 = 2,050). The applicant proposes to retain native
and existing vegetation in the eastern area — over one acre — of the property and in other areas
not intended for development. In addition, the applicant proposes 4,900 square feet of
landscaping throughout the parking area. This exceeds the 2,050 square foot requirement and
thus meets this criterion.
b. In addition to the landscaping required by DCC 18.124.070(B)(2)(a), a parking or
loading area shall be separated from any lot line adjacent to a roadway by a
landscaped strip at least 10 feet in width, and from any other lot line by a
landscaped strip at least five feet in width.
FINDING: The proposed landscape plan shows a landscaping strip at least 10 feet in width
between the parking area and Stevens Road. Although the parking area is not directly adjacent
to the west, north, and east property lines, the applicant proposes a landscape strips at least five
feet in width adjacent to the western side of the proposed parking area. The plan shows the
landscaping strip containing proposed vegetation. Staff believes this criterion is met.
c. A landscaped strip separating a parking or loading area from a street shall
contain:
1) Trees spaced as appropriate to the species, not to exceed 35 feet apart on
the average.
2) Low shrubs not to reach a height greater than three feet zero inches, spaced
no more than eight feet apart on the average.
3) Vegetative ground cover.
FINDING: According to the landscape pian, the proposed landscape strips will include retained
trees, shrubs, and vegetative ground cover. Staff believes this criterion will be met.
d. Landscaping in a parking or loading area shall be located in defined landscaped
areas which are uniformly distributed throughout the parking or loading area.
e. The landscaping in a parking area shall have a width of not less than five feet.
FINDING: Based on staff's review of the landscape plan, the landscaped areas will be in defined
areas that are uniformly distributed throughout the parking area. All landscaped areas will be at
least five feet in width. These criteria will be met.
f. Provision shall be made for watering planting areas where such care is required.
g. Required landscaping shall be continuously maintained and kept alive and
attractive.
FINDING: The applicant is proposing to remove native vegetation in the development footprint
and introduce landscaping around the parking area. Some areas of the property will maintain
native vegetation. The existing landscaped areas are in naturally defined areas and are uniformly
distributed throughout some regions of the property. Care for these areas is a naturally occurring
process and is continuously maintained and kept alive and attractive. The applicant agrees to a
condition of approval to ensure compliance with these criteria.
3 Although the applicant proposes 99 parking spaces, required landscaping is only based on the required parking
spaces, which is 82 in this case.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 23
EXHIBIT "A" TO DOCUMENT 2018-694
Staff recommends, if the application is approved, that it be made a condition of approval requiring
the applicant to maintain continuously and keep alive and attractive all landscaping on the subject
property.
h. Maximum height of tree species shall be considered when planting under
overhead utility lines.
FINDING: The applicant is not proposing to plant trees under overhead utility lines. Therefore,
this criterion is not applicable.
C. Nonmotorized Access.
1. Bicycle Parking. The development shall provide the number and type of bicycle
parking facilities as required in DCC 18.116.031 and 18.116.035. The location and
design of bicycle parking facilities shall be indicated on the site plan.
FINDING: Bicycle parking standards are addressed in DCC 18.116.031, below. Staff believes
that the proposal met the exception criteria thus no bicycle parking is required.
2. Pedestrian Access and Circulation:
a. Internal pedestrian circulation shall be provided in new commercial, office and
multi -family residential developments through the clustering of buildings,
construction of hard surfaced walkways and similar techniques.
FINDING: The proposed church is not commercial, office, or multi -family development. This
criterion does not apply.
b. Pedestrian walkways shall connect building entrances to one another and from
building entrances to public streets and existing or planned transit facilities.
Onsite walkways shall connect with walkways, sidewalks, bikeways, and other
pedestrian or bicycle connections on adjacent properties planned or used for
commercial, multi -family, public or park use.
FINDING: The applicant proposes a walkway that will connect the parsonage, the church
building, and the parking area. There are no pedestrian walkways along the road or adjacent to
the site. No pedestrian or bicycle connections exist on adjacent properties, and staff is unaware
of any are planned connections on adjacent properties. Nevertheless, the former driveway will
be converted to a pathway to the public roadway, Stevens Road. The applicant is proposing this
to meet a Bend Fire Department requirement for evacuation purposes. Staff believes this criterion
is met.
c. Walkways shall be at least five feet in paved unobstructed width. Walkways
which border parking spaces shall be at least seven feet wide unless concrete
bumpers or curbing and landscaping or other similar improvements are
provided which prevent parked vehicles from obstructing the walkway.
Walkways shall be as direct as possible.
FINDING: The proposed pedestrian walkways will be concrete and five feet of unobstructed
width. The walkways that border the parking spaces will be five fee and include curbing. Based
on staff's review of the site plan, the walkways directly connect pedestrians to the church building,
parsonage, and parking area. Staff believes this criterion is met.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 24
EXHIBIT "A" TO DOCUMENT 2018-694
d. Driveway crossings by walkways shall be minimized. Where the walkway
system crosses driveways, parking areas and loading areas, the walkways
must be clearly identifiable through the use of elevation changes, speed
bumps, a different paving material or other similar method.
FINDING: The proposal includes a driveway crossing by walkway that connects the parsonage
and the church. The applicant proposes to have this crossing clearly identifiable using striping.
Staff believes this criterion is satisfied.
e. To comply with the Americans with Disabilities Act, the primary building
entrance and any walkway that connects a transit stop to building entrances
shall have a maximum slope of five percent. Walkways up to eight percent
slope are permitted, but are treated as ramps with special standards forrailings
and landings.
FINDING: Any required accommodations to comply with ADA standards will be addressed
during building permit review. This criterion will be met.
D. Commercial Development Standards...
FINDING: The proposed facility is not a commercial development. These criteria do not apply.
4. Section 18.124.090. Right of Way Improvement Standards.
Any dedications or improvements to the road right of way required under DCC 18.124
shall meet the standards for road right of way improvements set forth in DCC Title 17 and
any standards for right-of-way improvements set forth in DCC Title 18 for the particular
zone in nupstinn_
FINDING: Neither the Deschutes County Road Department nor Deschutes County
Transportation Planner identified transportation infrastructure deficiencies or requirements.
E. CHAPTER 18.116, SUPPLEMENTARY PROVISIONS
1. Section 18.116.020. Clear vision areas.
A. In all zones, a clear vision area shall be maintained on the corners of all property at
the intersection of two streets or a street and a railroad. A clear vision area shall
contain no planting, fence, wall, structure or temporary or permanent obstruction
exceeding three and one-half feet in height, measured from the top of the curb, or,
where no curb exists, from the established street centerline grade, except that trees
exceeding this height may be located in this area provided all branches and foliage
are removed to a height of eight feet above the grade.
B. A clear vision area shall consist of a triangular area on the corner of a lot at the
intersection of two streets or a street and a railroad. Two sides of the triangle are
sections of the lot lines adjoining the street or railroad measured from the corner to a
distance specified in DCC 18.116.020(B)(1) and (2). Where lot lines have rounded
corners, the specified distance is measured from a point determined by the extension
of the lot lines to a point of intersection. The third side of the triangle is the line
connecting the ends of the measured sections of the street lot lines. The following
measurements shall establish clear vision areas within the County.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 25
EXHIBIT "A" TO DOCUMENT 2018-694
1. In an agricultural, forestry or industrial zone, the minimum distance shall be 30 feet
or at intersections including an alley, 10 feet.
2. In all other zones, the minimum distance shall be in relationship to street and road
right-of-way widths as follows:
Right -of -Way Width
Clear Vision
80 feet or more
20 feet
60 feet
30 feet
50 feet and less
40 feet
FINDING: Based on the submitted site plan, no clear vision area will be obstructed with this
proposal. Staff believes this criterion is met.
2. Section 18.116.030. Off Street Parking and Loading.
A. Compliance. No building or other permit shall be issued until plans and evidence are
presented to show how the off-street parking and loading requirements are to be met
and that property is and will be available for exclusive use as off-street parking and
loading. The subsequent use of the property for which the permit is issued shall be
conditional upon the unqualified continuance and availability of the amount of parking
and loading space required by DCC Title 18
FINDING: The off-street parking requirements for the proposed use are addressed below.
B. Off -Street Loading. Every use for which a building is erected or structurally altered to
the extent of increasing the floor area to equal a minimum floor area required to
provide loading space and which will require the receipt or distribution of materials or
merchandise by truck or similar vehicle, shall provide off-street loading space on the
basis of minimum requirements as follows:
2. Restaurants, office buildings, hotels, motels, hospitals and institutions; schools
and colleges, public buildings, recreation or entertainment facilities and any
similar use which has a gross floor area of 30, 000 square feet or more shall provide
off-street truck loading or unloading berths subject to the following table:
Sq. Ft. of Floor Area
No. of Berths Required
Less than 30,000
0
30,000-100,000
1
100,000 and Over
2
3. A loading berth shall contain space 10 feet wide, 35 feet long and have a height
clearance of 14 feet. Where the vehicles generally used for loading exceed these
dimensions, the required length of these berths shall be increased.
FINDING: Based on the definition in DCC 18.04, a church is an institution and, therefore, is
subject to the off-street loading requirements detailed above. The proposed church will be 14,560
square feet in size. Based on the above table, the structure does not meet the size requirement
for a loading berth. For this reason, staff finds a loading berth is not required.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 26
EXHIBIT "A" TO DOCUMENT 2018-694
C. Off -Street Parking. Off-street parking spaces shall be provided and maintained as set
forth in DCC 18.116.030 for all uses in all zoning districts. Such off-street parking
spaces shall be provided at the time a new building is hereafter erected or enlarged or
the use of a building existing on the effective date of DCC Title 18 is changed.
D. Number of Spaces Required. Off-street parking shall be provided as follows:
4. Places of Public Assembly.
Use
Requirements
Church
1 space per 4 seats or 8 feet
of bench length in the main
auditorium or 1 space for
each 50 sq. ft. of floor area
used for assembly.
FINDING: The applicant is proposing a 14,560 -square foot church that will include up to 325
seats. Pursuant to the one (1) space per four (4) seats ratio above, the required church parking
is 82 parking spaces. The revised indicates 99 vehicular parking spaces are proposed. Staff
believes this criterion is met.
E. General Provisions. Off -Street Parking.
.1. More Than One Use on One or More Parcels. In the event several uses occupy a
single structure or parcel of land, the total requirement for off-street parking shall
be the sum of requirements of the several uses computed separately.
FINDING: The subject property includes a residential use. However, the proposal includes
maintainina the dwelling as a parsonage and thus associated and accessory to the proposed
church use. Although not required to provide two parking spaces for each dwelling unit (DCC
18.116.030(D)(1)), the applicant indicates two parking spaces will be located within the attached
garage of the dwelling. No other uses or businesses will be sharing the proposed off-street
parking spaces. Therefore, these criteria are not applicable.
2. Joint Use of Facilities. The off-street parking requirements of two or more uses,
structures or parcels of land may be satisfied by the same parking or loading space
used jointly to the extent that it can be shown by the owners or operators of the
uses, structures or parcels that their operations and parking needs do not overlap
at any point of time. If the uses, structures or parcels are under separate
ownership, the right to joint use of the parking space must be evidence by a deed,
lease, contract or other appropriate written document to establish the joint use.
FINDING: The applicant is not proposing joint use of parking facilities. Although not required,
the proposed church and associated parsonage do have separate parking facilities, if necessary.
This criterion is not applicable.
3. Location of Parking Facilities. Off-street parking spaces for dwellings shall be
located on the same lot with the dwelling. Other required parking spaces shall be
located on the same parcel or another parcel not farther than 500 feet from the
building or use they are intended to serve, measured in a straight line from the
building in a commercial or industrial zone. Such parking shall be located in a safe
and functional manner as determined during site plan approval. The burden of
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 27
EXHIBIT "A" TO DOCUMENT 2018-694
proving the existence of such off -premise parking arrangements rests upon the
applicant.
FINDING: The parking and maneuvering area for the proposed church use is located on-site
and within 500 feet of the building. The parking and maneuvering area is located in a safe and
functional manner, designed for operable passenger vehicles made available for service
personnel only.
4. Use of Parking Facilities. Required parking space shall be available for the parking
of operable passenger automobiles of residents, customers, patrons and
employees only and shall not be used for the storage of vehicles or materials or
for the parking of trucks used in conducting the business or used in conducting
the business or use.
FINDING: To ensure compliance, staff recommends it be made a condition of approval that
parking spaces are not used for storage of vehicles or materials or for the parking of trucks used
in conducting the business or used in conducting the business or use.
5. Parking, Front Yard. Required parking and loading spaces for multi -family
dwellings or commercial and industrial uses shall not be located in a required front
yard, except in the Sunriver UUC Business Park (BP) District and the La Pine UUC
Business Park (LPBP) District and the La Pine UUC Industrial District (LPI), but
such space may be located within a required side or rear yard.
FINDING: The proposed church is not considered commercial, industrial, or multi -family
development. Therefore, this criterion is not applicable.
6. On -Street Parking Credit. Notwithstanding DCC 18.116.030(p)(2), within conninnercial
zones in the La Pine Planning Area and the Terrebonne and Tumalo unincorporated
communities, the amount of required off-street parking can be reduced by one off-
street parking space for everyallowed on -street parking space adjacent to a property
up to 30 percent of the required off-street parking....
FINDING: The applicant is not requesting off-street parking credit and therefore, this criterion is
not applicable.
F. Development and Maintenance Standards for Off -Street Parking Areas. Every parcel
of land hereafter used as a public or private parking area, including commercial
parking lots, shall be developed as follows:
1. Except for parking to serve residential uses, an off-street parking area for more
than five vehicles shall be effectively screened by a sight obscuring fence when
adjacent to residential uses, unless effectively screened or buffered by
landscaping or structures.
FINDING: The subject property is adjacent to residential uses to the north, east, and west of the
property. The applicant states that the proposed parking lot is not adjacent to surrounding
residential uses since "the parking lot will be sited over 100 feet from the north, east and west
property lines" and thus not subject to this criterion. Staff notes that, unlike "adjoining4", "adjacent"
4 DCC 18.04.030 - "Adjoining" means contiguous; touching or connected, including tracts of land that only connect or
touch at a common point.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 28
EXHIBIT "A" TO DOCUMENT 2018-694
is not defined in the Deschutes County Code. Merriam -Webster defines "adjacent", in relevant
part as:
1 a: not distant: nearby - the city and adjacent suburbs
b: having a common endpoint or border - adjacent lots - adjacent sides of a triangles
Staff believes that that the properties in residential use to the north and west, at minimum, are
adjacent in the sense of being nearby and having a common border with the subject property. It
may be that adjacency could be a broader concern if it is simply read as "nearby". Staff believes
that the Hearings Officer will need to determine which lots, if any, are "adjacent" prior to
determining if the proposed site plan effectively screens or buffers parking areas from these
properties.
In any regard, staff is unclear where the applicant is measuring to and from in order to derive 100
feet from adjacent property lines. Based on staff's measurements, the closest part of the parking
area is approximately 65 feet from the north boundary and 40 feet from the west boundary.
However, at its closest reach, the northerly single-family dwelling is approximately 285 feet to the
northeast, which is further than the proposed building (115 feet from the building to the dwelling).
The dwelling to the west is approximately 330 to 345 feet from the parking area.
Although the applicant argues that the criterion is not applicable based on distance, landscape
strips are proposed in designated areas surrounding the parking area and within the parking
area. According to the landscaping plan, the parking area will be landscaped primarily along the
west and south sides and a couple areas in the southeast. The church building occupies most of
the northeastern side of the parking area. Staff believes the proposed landscaping and church
building will aide in screening or buffering neighboring residential uses. However, a small area
between the ADA parking spaces and the septic tank, reserve drainfield, and trash enclosure
does not contain landscaping. Staff is unclear if those elements (e.g. septic) prevents additional
landscaping in this area or if there is the possibility to provide additional landscaping to mitigate
the impacts to the north and northeast.
In conclusion, staff believes this criterion was intended for the protection of residential
development within close proximity of a proposed parking area and not necessarily for adjacent
residentially zoned property regardless of the distance that separates the parking area and the
residential use. Based on numerous comments concerning impacts from vehicle lights, vehicle
traffic, and parking lot lighting, staff recommends the Hearings Officer determine if the parking
area is effectively screened as proposed (distance to residential use and some introduced
landscaping) or should additional landscaping and/or fencing be provided to mitigate impacts.6
Hearings Officer. As I have denied the site plan, findings on this issue may not particularly
relevant. Nevertheless, I agree with staff's measurements. Also note that the applicant has
reduced the number of actual parking spaces in this area by four.
5 https://www.merriam-webster.com/dictionary/adjacent
6 In a similar case for the Seventh Day Adventist church proposed at 21620 Butler Market Road, the Hearings Officer
did not discount for distance to the neighboring residential use to the south and west even though significant distance
separated the parking area and the neighboring residential uses (CU -05-8 and SP -04-57). Furthermore, the area
surrounding in the Seventh Day Adventist property, as in this case, was residentially zoned (MILIA -10). The Seventh
Day Adventist proposed a landscaped berm and fencing along the south side where the closest residence was located
and additional landscape material along its west side where there was significant distance between the church and the
residential use.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 29
EXHIBIT "A" TO DOCUMENT 2018-694
I have reservations about the hearings officer interpretation cited by staff in the footnote. It seems
to me that if the provision was intended to apply to all parking areas on all parcels adjacent to
residential parcels it would simply so state. It may be that it was intended to apply to parking lots
near the boundary with a residential parcel, although that creates the problem of determining
when it is "near" enough to mandate buffering. I do think that it relates to the location of the
residence on the parcel.
Other than a septic "do's and don'ts" sheet I cannot find that the applicant responded regarding
whether the septic fields preclude significant landscaping at their edges but note that the church
and parking areas appear to encroach into the dashed box depicting the reserve drainfield, so it
seems that some landscaping or a fence would be permissible in the areas suggested by staff
or along the property lines. If the applicant were to propose moving the church closer to Stevens
so it does not buffer the parking lot, other buffering would be necessary.
In the end, given that the applicant should be able to achieve compliance with the interpretation
cited by staff relatively easily (probably with a condition of approval if the site plan had been
approved), I find that the better course is to maintain consistency and conclude that this criterion
is not met for the small area referenced by staff.
2. Any lighting used to illuminate off-street parking areas shall be so arranged that it
will not project light rays directly upon any adjoining property in a residential zone.
FINDING: The applicant is proposing lighting to illuminate off-street parking and maneuvering
areas. The applicant indicates that the proposed lighting will not project onto any adjoining
property in a residential zone. To ensure compliance, staff recommends this be made a condition
of any approval if the application is approved.
3. Groups of more than two parking spaces shall be located and designed to p► event
the need to back vehicles into a street or right of way other than an alley.
FINDING: The area of the site that will accommodate parking and maneuvering of vehicles is
designed to occur on the site and prevent vehicles backing into a street or right-of-way. The
proposed church parking and maneuvering areas are not located near a street or other rights-of-
way. The parking area is located approximately 30 feet from Stevens Road. Staff believes this
criterion is met.
4. Areas used for standing and maneuvering of vehicles shall be paved surfaces
adequately maintained for all weather use and so drained as to contain any flow of
water on the site. An exception may be made to the paving requirements by the
Planning Director or Hearings Body upon finding that:
a. A high water table in the area necessitates a permeable surface to reduce
surface water runoff problems; or
b. The subject use is located outside of an unincorporated community and the
proposed surfacing will be maintained in a manner which will not create dust
problems for neighboring properties; or
c. The subject use will be in a Rural Industrial Zone or an Industrial District in an
unincorporated community and dust control measures will occur on a
continuous basis which will mitigate any adverse impacts on surrounding
properties.
FINDING: According to the applicant, the areas of the property proposed for standing and
maneuvering of vehicles will be paved surfaced with all-weather materials and will be sloped to
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 30
EXHIBIT "A" TO DOCUMENT 2018-694
allow for surface water drainage on-site to designated stormwater infiltration basins and
landscape beds. However, if funding for paving is unavailable, the applicant is requesting an
exception to the paving requirements. the subject property is located outside of an
unincorporated community. If approved, the applicant agrees to a condition of approval that
requires the parking and maneuvering areas to be maintained in a matter in which it will not
create dust problems for the neighboring properties. Staff believes this criterion can be met with
the imposition of conditions of approval for either paving or gravel.
Hearings Officer: I concur with staff and note that a gravel area appears to be more consistent
with the rural character of the area than a sea of pavement, provided it is maintained properly.
6. Service drives to off-street parking areas shall be designed and constructed to
facilitate the flow of traffic, provide maximum safety of traffic access and egress
and maximum safety of pedestrians and vehicular traffic on the site. The number
of service drives shall be limited to the minimum that will accommodate and serve
the traffic anticipated. Service drives shall be clearly and permanently marked and
defined through the use of rails, fences, walls or other barriers or markers. Service
drives to drive in establishments shall be designed to avoid backing movements
or other maneuvering within a street other than an alley.
FINDING:. The proposed parking area, including service drives, has been designed to meet the
design standards of the DCC 18.116. Access to the subject property is currently provided from
Stevens Road. The applicant is proposing to relocate the access west based on conversations
with the Senior Transportation Planner and County Road Department. The new access will have
a width of approximately 35 feet, allowing for two-way traffic (outbound right turn and left turn,
and inbound). Based on the proposed plans, sufficient width for two-way traffic service drives
has been provided in the other areas. In addition, the main service drive has been clearly marked
through use of either split rail fencing or concrete curbing. The applicant also proposes a
landscaping strip in this area. The design of the existing drives and proposed parking area, with
proper signage, will facilitate the safe flow of traffic and serve anticipated traffic. The design will
also prevent vehicle -backing movements on to the road right of way. Staff believes this criterion
has been met.
7. Service drives shall have a minimum vision clearance area formed by the
intersection of the driveway centerline, the street right of way line and a straight
line joining said lines through points 30 feet from their intersection.
FINDING: Access to the subject property is currently provided from Stevens Road. The applicant
is proposing to relocate the access west. As proposed the driveway will have a minimum vision
clearance area that is formed by the intersection of the driveway and Stevens Road. Staff
believes this criterion is satisfied.
8. Parking spaces along the outer boundaries of a parking area shall be contained by
a curb or bumper rail placed to prevent a motor vehicle from extending over an
adjacent property line or a street right of way.
FINDING: Most of the parking spaces are at least 40 feet from the closest property boundary
and Stevens Road. Two parking spaces are located within the front 30 feet of Stevens Road.
Staff believes the parking spaces within the front 30 space should be contained. As proposed,
all exterior parking spaces will be contained by a curb and defined landscaping areas. In addition,
the applicant proposes either split rail fencing or concrete curbing along the front service drive
and parking area. Staff believes this criterion is met.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 31
EXHIBIT "A" TO DOCUMENT 2018-694
G. Off -Street Parking Lot Design. All off-street parking lots shall be designed subject to
County standards for stalls and aisles as set forth in the following drawings and table:
(SEE TABLE 1 AT END OF CHAPTER 18.116)
1. For one row of stalls use "C" + "D" as minimum bay width.
2. Public alley width may be included as part of dimension "D, " but all parking stalls
must be on private property, off the public right of way.
3. For estimating available parking area, use 300-325 square feet per vehicle for stall,
aisle and access areas.
4. For large parking lots exceeding 20 stalls, alternate rows may be designed for
compact cars provided that the compact stalls do not exceed 30 percent of the total
required stalls. A compact stall shall be eight feet in width and 17 feet in length
with appropriate aisle width.
FINDING: The County standards for stalls and aisles as set forth in Table 1. As designed, the
parking lot and all parking spaces will satisfy the standards set forth in Table 1, including stall
dimensions of 10 feet wide by 20 feet long for the related 90 -degree parking angle.
3. Section 18.116.031. Bicycle Parking.
New development and any construction, renovation or alteration of an existing use
requiring a site plan review under DCC Title 18 for which planning approval is applied for
after the effective date of Ordinance 93-005 shall comply with the provisions of DCC
18.116.031.
A. Number and Type of Bicycle Parking Spaces Required.
1- General Minimum Standard.
a. All uses that require off-street motor vehicle parking shall, except as
specifically noted, provide one bicycle parking space for every five required
motor vehicle parking spaces.
b. Except as specifically set forth herein, all such parking facilities shall include
at least two sheltered parking spaces or, where more than 10 bicycle spaces
are required, at least 50 percent of the bicycle parking spaces shall be
sheltered.
c. When the proposed use is located outside of an unincorporated community, a
destination resort, and a rural commercial zone, exceptions to the bicycle
parking standards may be authorized by the Planning Director or Hearings
Body if the applicant demonstrates one or more of the following:
i The proposed use is in a location accessed by roads with no bikeways and
bicycle use by customers or employees is unlikely.
ii. The proposed use generates less than 50 vehicle trips per day.
iii. No existing buildings on the site will accommodate bicycle parking and no
new buildings are proposed.
iv. The size, weight, or dimensions of the goods sold at the site makes
transporting them by bicycle impractical or unlikely.
v. The use of the site requires equipment that makes it unlikely that a bicycle
would be used to access the site. Representative examples would include,
but not be limited to, paintball parks, golf courses, shooting ranges, etc.
FINDING: The subject property is located outside of an unincorporated community. In addition,
the property is accessed by Stevens Road, which does not contain bikeways such as designated
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 32
EXHIBIT "A" TO DOCUMENT 2018-694
bike lanes. The applicant indicates that bicycle use by parishioners to the church's current
location at 61690 Pettigrew Road location is nonexistent and thus unlikely be used by
congregation at the new location outside city limits. Based on this information, staff believes that
compliance with the exceptions criteria is met and no bicycle parking is required.
F. RLUIPA and ORS 215.441
The applicant contends that RLUIPA and/or ORS 215.441 prohibit denial of the use and the site
plan. As I have approved the CUP for the use I will not address the former allegation.
RLUIPA prohibits a government from imposing or implementing a land use regulation in a
manner that imposes a substantial burden on the religious exercise" of a person or church
unless the government has a "compelling reason" and chooses the least restrictive means. 42
U.S.C. section 2000c.
Nothing in the denial of the site plan imposes a substantial burden on the religious activities of
the applicant. I have found that those activities are allowed and are not incompatible or
disharmonious. The denial is based on the applicant's failure to consider design, layout and
other similar alternatives that would reasonably accommodate its needs and still address the
impacts of the structure and parking lot on surrounding properties. It could be that minor
changes would greatly reduce impacts or that the proposal really is the minimum necessary and
the least impactful. In Corp. of Presiding Bishop v West Linn, 338 OR 453, 111 P3d 1125 (2005)
the Court upheld an arguably much more burdensome denial and concluded that this provision
is violated only if the regulation or denial "'pressures' or 'forces' a choice between following
religious precepts and forfeiting certain benefits, on the one hand, and abandoning one or more
of those precepts in order to obtain the benefits, on the other." It favorably cited cases holding
it permissible to deny an application. My site plan denial is based on failure to submit satisfactory
data with the possibility that a modification or more evidence ural. Lilt!pruposai Is USG =00L
impactful feasible proposal would result in approval.
ORS 215.441 provides that, if a zone permits a nonresidential place of worship, a county must
allow use of the property for the listed activities, including services, classes, weddings, funerals
and childcare. But a county may subject the property to reasonable regulations expressly
including "site review or design review" concerning the physical characteristics of the site.
Nothing in the denial of the site plan precludes or restricts the applicant from conducting any of
the listed activities provided it first demonstrates that the physical space and layout necessary
for those activities is the one that minimizes impacts on views and harmonizes the development
to existing development to the extent reasonably feasible. The legislative history cited by the
applicant does not contradict this and, in fact, seems to stress that the primary limitation is on
regulating religious uses rather than the physical impacts of the proposal.
I find that neither RLUIPA nor ORS 215.441 precludes the county from addressing the impacts
created by the physical attributes of an application for a church as I have sought to do in this
decision.
IV. CONCLUSION
Based on the foregoing findings and conclusions:
1. Application 247 -18 -000063 -LR is APPROVED;
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 33
EXHIBIT "A" TO DOCUMENT 2018-694
2. Application 247 -18 -000061 -CU for a church, parking lot and parsonage is APPROVED subject to the
following conditions:
1. No building, grading, parking, land use, sign or other required permit shall be issued for a
use subject to DCC 18.124.030, nor shall such a use be commenced, enlarged, altered or changed until
a final site plan is approved according to DCC Title 22, the Uniform Development Procedures Ordinance.
2. This approval is for the uses proposed and those listed in ORS 215.441 (1) (a) -(f) but not
private or parochial school education for prekindergarten through grated 12 or higher. It does not
authorize operation lease or operation of a daycare not affiliated with the church.
3. Any substantial change to the conditional use approval will require a new application. It
is understood, however, that changes to the submitted site plan, including but not limited to building
layout, design, size, location and other physical attributes may be necessary to obtain site plan approval
and this CU approval is not intended to preempt that review process. The site plan may be subject to
conditions of approval, including but not limited to those recommended by staff as described in this
decision.
3. Application 247 -18 -00062 -SP is DENIED for failure to demonstrate compliance with DCC
18.124.060 A., as regards relating harmoniously to existing development and minimizing visual impacts
and DCC18.116.030 F.1.
Done and dated this 30th day of August 2018
Dan R. Olsen
Hearings Officer
THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 34
EXHIBIT "A" TO DOCUMENT 2018-694
Deschutes County Board of Commissioners
�Y
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 December 5, 2018
DATE: November 28, 2018
FROM: Matthew Martin, Community Development, 541-330-4620
TITLE OF AGENDA ITEM:
DELIBERATIONS: Anderson Marijuana Production Appeal, 63775 Diamond Forge Road,
Bend
BACKGROUND AND POLICY IMPLICATIONS:
Andrew Anderson applied for a land use permit to establish marijuana production in the
Exclusive Farm Use (EFU) at 63775 Diamond Forge Road, Bend. The proposed marijuana
production consists of a maximum 5,000 square feet of mature marijuana plant canopy area
and includes establishment of new structures for the use. September 5, 2018, staff issued an
arproval of the anplication. The approval was timely appealed and on October 10, 2018, the
Board conducted a public hearing for the appeal.
See attached staff memo for additional information.
ATTENDANCE: Matthew Martin, Associate Planner
ES
MEMORANDUM
DATE: December 5, 2018
TO: Board of County Commissioners
FROM: Matthew Martin, Associate Planner
COMMUNITY DE E IMENT
RE: Deliberations: Land Use File Nos. 247-18-000361-AD/247-18-000766-A
On December 5, 2018, the Board of County Commissioners (Board) will conduct deliberations on an
appeal, filed by Todd and Denese Fitzmaurice, in response to approval of an Administrative
Determination (AD) for marijuana production proposed by Andrew Anderson.
BACKGROUND
Andrew Anderson applied for a lana use permit to establish marihuana production In the Exclusive
Farm Use (EFU) at 63775 Diamond Forge Road, Bend. The proposed marijuana production consists
of a maximum 5,000 square feet of mature marijuana plant canopy area and includes establishment
of new structures for the use. September 5, 2018, staff issued an approval of the application. The
approval was timely appealed and on October 10, 2018, the Board conducted a public hearing for
the appeal. At the conclusion of the hearing, the Board established a deadline for each of the open
record periods. On October 17, 2018, the applicant requested extension of the open record period
(Attachment 5) and on October 31, 2018, the applicant agreed to extend the 150 -day review time
period to December 14, 2018 (Attachment 4). On November 5, 2018, the Board approved Order No.
2018-068 extending 150 -day review time period and establishing a new schedule for the open
record periods detailed below.
1. New Evidence & Testimony: November 13, 2018 (Attached)
2. Rebuttal Evidence & Testimony: November 20, 2018 (no submittals)
3. Applicant's Final Legal Argument: November 27, 2018 (no submittals)
A number of issues were raised during the land use process. Below, staff provides additional detail
regarding those issue areas which relate to approval criteria.
ISSUES RAISED IN TESTIMONY &SUBMITTED MATERIALS
I. ODOR
The appellant. identified odor as an issue associated with the proposal but did not identify
how they believe the proposal does not apply with the applicable odor control standard of
Deschutes County Code (DCC) 18.116.330(B)(10). The Board questioned whether the
applicant met his burden of proof with respect to this this standard. Specifically, the
applicant was asked to submit additional information to demonstrate that the proposed
odor control system will function as intended to control odors. In addition to the ColeBreit
Engineering report dated April 5, 2018, entered previously in the record, the applicant
submitted BioWorld USA Drum Mounted Fogger system specifications and instruction
manual (Attachment 6) and a new Cannabis Odor and Noise Report prepared by ColeBriet
Engineering (Attachment 3).
The new Cannabis Odor and Noise Report is a robust and detailed site-specific report
prepared by Oregon -licensed Mechanical Engineer Robert E. James, PE of ColeBreit
Engineering, dated November 9, 2018. The 69 -page report demonstrates that the proposed
combination of ring fogging and carbon filtration systems will comply with these criteria by
providing the type of technology and materials used, case studies showing their
effectiveness, volume calculations, a maintenance plan, examples of how other jurisdictions
regulate odor control, and design descriptions of how odor will prevented from escaping the
greenhouses.
BOCC DECISION
The Board must determine will the proposed odor control system comply with DCC
18.11 8.330(B)(1 0).
II. NOISE
The appellant identified noise as an issue associated with the proposal but did not specify
how they believe the proposal does not apply with the applicable noise standard of DCC
18.116.330(B)(11). The ColeBreit report dated April 5, 2018, entered previously in the record,
states:
'The exhaust fans will not run at night between the hours of 10 pm and 7 am. Thus, there will
be no noise generated from the greenhouses between 10 pm and 7 am."
As indicated above, the applicant submitted a new Cannabis Odor and Noise Report
prepared by ColeBriet Engineering dated November 9, 2018. This report states, "Equipment
noise will comply with Deschutes county code by not operating exterior equipment between the
hours of 10:00 pm and 7:00am." The report further calculates and analyzes the noise
associated with the proposed development when the equipment is in operation.
247 -18 -000766 -A/361 -AD
BOCC DECISION
The Board must determine if the applicant has complied with DCC 18.118.330(B)(11).
III. WATER
Objectionswere raised regardingthe impactthe proposed usewill have regionallyon ground
water resources. The applicant has proposed water hauling to serve water demand at the
proposed with no on-site well use. There were no objections to the use of water hauling to
complying with the water standard of DCC 18.116.330(B)(13). The Bend Water Hauling, LLC
letter dated April 9, 2018, entered previously in the record, states:
"The water we haul as part of our delivery service is from either municipal or quasi -municipal
sources. Our source of water for this customer is Avian Water Company. Diamond Fore Farms
has set up as account for 4,000 gallons of potable water delivered once a week for farming
and agricultural use."
BOCC DECISION
The Board must determine if the applicant has demonstrated compliance with DCC
18.118.330(B)(13).
IV. ROAD IMPACTS/ACCESS
The appellant objected to impacts the proposed operation will have on Diamond Forge Road,
a constructed public local access road that is not maintained by Deschutes County. There
are no applicable review criteria that addresses impacts on public roads. Staff notes the
access standard of DCC 18.116.330(B)(8) applies to marijuana production over 5,000 square
feet of canopy area for mature marijuana plants. The proposed operation will have a
maximum 5,000 square feet of mature marijuana plant canopy area and, therefore, the
access standard is not applicable to this proposal. Staff notes that if the access standard
were applicable, the subject property would comply with the standard because it has
frontage on and legal direct access from Diamond Forge Road.
BOCC DECISION
The Board must determine if the applicant has demonstrated compliance with DCC
18.118.330(B)(8).
247 -18 -000766 -A/361 -AD
Table 1. Issue Area Summary
Issue
Applicant
Staff Comment
Board Decision Points
Area
Response
The record reports
Has the applicant demonstrated
The applicant
prepared by ColeBreit
compliance with DCC
submitted a
Engineering that indicate
18.113.330(B)(11)?
Cannabis Odor and
there will be no noise
a. If yes, continue reviewing the
Noise
Noise Report
generated from the
application.
prepared by
greenhouses between
b. If no, either:
ColeBreit
10:00 pm and 7:00 am.
i. Condition approval to
Engineering dated
achieve compliance; or
November 9, 2018.
ii. Deny the application.
The applicant
submitted BioWorld
The record includes a
Will the proposed odor control
USA Drum Mounted
Cannabis Odor and Noise
system comply with DCC
Fogger system
reports prepared by
18.118.330(B)(10)?
specifications and
ColeBreit Engineering
a. If yes, continue reviewing the
Odor
instruction manual
dated November 9, 2018,
application.
and a Cannabis
indicating the proposed
b. no, either:
Odor and Noise
combination fogger and
i to
. Condition approval
.
Report prepared by
carbon filter systems will
achieve compliance;; or
ColeBreit-
satisfy the requirements
ii. Deny the application.
�� .,��.� . A..4 --A
Ll 1r,11 M1=1 11 IS UOLCU
of *his section
U1 all .�c�uvi i.
November 9, 2018.
Has the applicant demonstrated
The record includes Bend
compliance with DCC
Water Hauling, LLC letter
18.116.330(B)(13)?
dated April 9, 2018,
a. If yes, continue reviewing the
Water
No post hearing
indicating they have an
application.
submittal.
account with Diamond
b. If no, either:
Forge Farms to deliver
i. Condition approval to
water for farming and
achieve compliance; or
agricultural use.
ii. Deny the application.
Has the applicant demonstrated
The proposed maximum
compliance with DCC
mature marijuana plant
18.116.330(B)(8)?
canopy is 5,000 square
a. If yes, continue reviewing the
Access
No post hearing
feet. In addition, the
application.
submittal.
property has frontage on
b. If no, either:
and legal access from
L Condition approval to
Diamond Forge Road, a
achieve compliance; or
constructed public road.
ii. Deny the application.
247 -18 -000766 -A/361 -AD
OTHER ISSUES AREAS
In addition to the issue areas which relate to approval criteria identified above, a number of other
issue areas were raised which do not relate to approval criteria. These include, but are not limited
to:
• Expansion opportunities at the applicant's other marijuana production operation in the area
• Traffic at other operation
• Access off of non -county maintained road
• Water truck traffic on homeowner maintained road
• Loss of property and home value
• Occupancy of and activity associated with the existing dwelling
• Proximity to children living next door
• Proximity to other marijuana production sites
• Marijuana production and retailing in the City of Bend
• Limitations to ensuring compliance
Because these issue areas do not relate to approval criteria, staff does not address them here.
NEXT STEPS
The Board can continue their deliberations to a date certain or direct staff to draft a decision.
Attachments:
1: 2018-11-13 Threlkeld E -Mail
2.: 2018-11-11 Fitzmaurice Letter
3: 2018-11-10 Anderson E-mail - ColeBriet Engineering Cannabis Odor and Noise Report
4: 2018-10-31 Anderson E -Mail -Agreement to Review Time Period Extension
5: 2018-10-24 Gutwosky E -Mail - Includes Anderson 10/17 Request to Extend Open Record Period
6: 2018-10-10 Anderson E -Mail - Odor Control Equipment Information
247 -18 -000766 -A/361 -AD