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2019-33-Minutes for Meeting November 07,2018 Recorded 1/15/2019• BOARD •' y COMMISSIONERS • 1300 NW Wall Street, Bend, Oregon (541 ) 388-6570 Recorded in Deschutes County CJ2019-33 Nancy Blankenship, County Clerk commissioners' Journal 01/15/2019 12:18:45 PM `u``�JT.�SCOG2a II'�I�II'I"II��I'II�III I �II 2019-33 1:30 PM WEDNESDAY, November 7, 2018 ALLEN CONFERENCE ROOM Present were Commissioners Tammy Baney, Phil Henderson and Anthony DeBone. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County Counsel; and Sharon Keith, Board Executive Assistant. Several citizens and representatives of the media were in attendance. CALL TO ORDER: Chair DeBone called the meeting to order at 1:30 p.m. ACTION ITEMS 1. Consideration of Whether to Hear a Potential Appeal of Thornburgh Destination Resort Phase A-1 Jacob Ripper, Community Development Department presented the item for consideration. The applicant changed the location of where the water features were going to be. The key issue is the 150 decision day where the applicant disagrees with staff and hearings officer decision. Mr. Ripper reviewed the findings of the hearings officer. Staff recommends the Board does not hear the appeal. If deciding to hear the appeal, it would be a compressed timeline. Commissioner Henderson is not inclined to hear this appeal. BOCC WORK SESSION NOVEMBER 7, 2018 PAGE 1 OF 5 BAN EY: Move approval of Order No. 2018-073 declining review HENDERSON: Second VOTE: BAN EY: Yes HENDERSON: Yes DEBONE: Chair votes yes. Motion Carried 2. Consideration of Public Hearing and Deliberation Schedule, Westside Transect Zone Zechariah Heck, Community Development Department presented the item for consideration. The Board must review the application because the request involves a quasi-judicial zone change and plan amendment that necessitates exceptions to the statewide planning goals. Mr. Heck recommends using the DeArmond and Barnes Sawyer rooms as the hearing would be well attended. Mr. Heck reviewed the proposed timeline in 2018. Based on strong community interest, staff recommends an evening hearing. The applicants are interested in a final decision by the end of the year. With the unavailability of the hearing rooms in our building, an off-site space may be considered. Commissioner Henderson expressed concern on a compressed timeline of the record period on this matter and feels this item should be given a fair hearing. Peter Gutowsky, Planning Manager explained the calendar demands for the month of November. The timeframe of the public hearing would be Tuesday, November 27 during the day. Staff will send a notice to the Bend Bulletin and to property owners within 250 feet of the development. BOCC WORK SESSION NOVEMBER 7, 2018 PAGE 2 OF 5 3. Non -Resource Lands / Draft Comprehensive Plan Amendments Peter Gutowsky, Planning Manager and Nick Lelack Community Development Director presented this item. Mr. Gutowsky noted a non - resource land program could address two zones that address platted subdivisions and lands a mile from the City of Bend UGB that may be excellent candidates for future urbanization. Commissioner Henderson doesn't like the term "rural" for these lands but prefers "other resource lands". Staff presented preliminary draft amendments to the Comprehensive Plan. The City of Bend proposed to re -designate this land for the next Urban Growth Boundary expansion. Staff will come back to the Board either the end of the year or beginning of 2019. Commissioner DeBone reported a sage grouse discussion may be held by Eastern Oregon Counties at AOC and asked if there is any status for Deschutes County? Mr. Gutowsky reported on Oregon's conversations and Mr. Gutowsky would be available to sit in to listen to those discussions. 4. Potential Marijuana Production Appeal, 4288 NE 29th Street, Redmond, Consideration of Order No. 2018-071 Tarik Rawlings, Community Development Department presented the item for a proposed marijuana production facility. There is an existing medical marijuana facility on the subject property. The applicant requests a setback exception. The Board supported hearing the appeal. BAN EY: Move approval of Order No. 2018-071 HENDERSON: Second VOTE: BAN EY: Yes HENDERSON: Yes DEBONE: Chair votes yes. Motion Carried BOCC WORK SESSION NOVEMBER 7, 2018 PAGE 3 OF 5 RECESS: At the time of 3:08 p.m., the Board took a recess and reconvened the meeting at 3:13 p.m. EXECUTIVE SESSION: At the time of 3:13 p.m., the Board went into Executive Session under ORS 192.660 (2) (h) Litigation. The Board came out of Executive Session at 3:50 p.m. OTHER ITEMS: • Commissioner DeBone reported an aggregate supply company in La Pine is asking the Forest Service for land for an expansion and he is asking the Board for a letter of support. The Forest Service denied the request. Peter Gutowsky will find a list of approved goal 5 sites. • County Administrator Anderson noted the recruitment for the Fair Board is for three upcoming vacancies and asked if the Board would like to participate in the interview panel. Commissioner DeBone will participate in the interviews. • Mr. Anderson reported on a discussion with City of La Pine, City Manager Cory Misely this morning regarding the agenda of this Friday's Sunriver La Pine Economic Development (SLED) meeting. The main topic is South County SLED position and the request for the position to increase from .75 to 1.0 FTE. Mr. Anderson explained the County will want to know the long term strategy for economic development for South County. Commissioner Henderson will attend the SLED meeting. • Deputy County Administrator Kropp reported the Sheriff's Office will conduct an active shooter training in the Deschutes Services Building during the evening of Tuesday, November 20. BOCC WORK SESSION NOVEMBER 7, 2018 PAGE 4 OF 5 EXECUTIVE SESSION: At the time of 4:05 p.m., the Board went into Executive Session under ORS 192.660 (2) (d) Labor Negotiations. The Board came out of Executive Session at 4:42 p.m. COMMISSIONER UPDATES • Commissioner Debone attended the EDCO Executive Committee Meeting and also attended the AOC Budget Meeting. • Commissioner Henderson noted he is interested in moving the Wednesday meetings back to 10:00 a.m. to be able to attend the REDI meetings. Being no further items to come before the Board, the meeting was adjourned at 4:45 p.m. DATED this Day of C 2018 for the Deschutes County Board of Commissioners. ANTHONY DEBONE, CHAIR TAMMY BANEY, C M ISSIONER BOCC WORK SESSION NOVEMBER 7, 2018 PAGE 5 OF 5 ETES C REVISED 11/5/18 o c Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 - www.deschutes.or WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:30 PM, WEDNESDAY, NOVEMBER 7, 2018 Allen Conference Room - Deschutes Services Building, 2ND Floor - 1300 NW Wall Street - Bend Work Session, which are open to the public, allow the Board to gather information and give direction to staff. Public comment is not normally accepted. Written minutes are taken for the record 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 Boards ability to address other topics. Meetings are subject to cancellation without notice. CALL TO ORDER ACTION ITEMS Consideration of Whether to Hear a Potential Appeal of Thornburgh Destination Resort Phase A-1 -Jacob Ripper, Senior Planner 2. Consideration of Public Hearing and Deliberation Schedule, Westside Transect Zone - Zechariah Heck, Associate Planner 3. Non -Resource Lands / Draft Comprehensive Plan Amendments - Peter Gutowsky, Planning Manager 4. Potential Marijuana Production Appeal, 4288 NE 29Th Street, Redmond, Consideration of Order No. 2018-071 - Tarik Rawlings, Assistant Planner COMMISSIONER'S UPDATES Board of Commissioners Work Session Agenda Wednesday, November 7, 2018 Page 1 of 2 EXECUTIVE SESSION Executive Sessions under ORS 192.660 (2) (h) Litigation and ORS 192.660 (2) (d) Labor At any time during the meeting an executive session could be called to address issues relating to ORS 192.5660(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 public. OTHER ITEMS These can be any items not included on the agenda that the Commissioners with to discuss as part of the meeting pursuant to ORS 192.640. ADJOURN Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.or /g meetingcalendar Meeting dates and times are subject to change. If you have question, please call (541) 388-6572. Board of Commissioners Work Session Agenda Wednesday, November 7, 2018 Page 2 of 2 (}_ z cu %Cr I n I I I I I ; I I, 0"E S 'o c� A t 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 Work Session of November 7, 2018 DATE: October 31, 2018 FROM: Jacob Ripper, Community Development, 541-385-1759 TITLE OF AGENDA ITEM: Consideration of Whether to Hear a Potential Appeal of Thornburgh Destination Resort Phase A-1 ATTENDANCE: Jacob Ripper, Senior Planner SUMMARY: The Board of County Commissioners (Board) will hold a work session on November 7, 2018, at 1:30 to decide if they will hear or will not hear an appeal of the Tentative Plan and Site Plan Review for Phase A-1 of the Thornburgh Destination Resort. The purpose of this work session is to assist the Board in determining if they will conduct a public hearing in late November, deliberations in December, and a final decision in December as well. MEMORANDUM COMMUNITY I Y DEV ELOPMEN` ' DATE: October 31, 2018 TO: Board of County Commissioners FROM: Jacob Ripper, Senior Planner RE: Thornburgh Resort Phase A-1 / Scheduling Public Hearing The Board of County Commissioners (Board) will hold a work session on November 7, 2018, at 1:30 to decide if they will hear or will not hear an appeal of the Tentative Plan and Site Plan Review for Phase A-1 of the Thornburgh Destination Resort. The purpose of this memorandum is to assist the Board in determining if they will conduct a public hearing in late November, deliberations in December, and a final decision in December as well. If so, it will require a compressed timeline. Table 1 provides potential dates for the Board to consider. Table 1 - Potential Timeline Topic Dates Staff Comments Monday, November 26 (morning and/or evening Commissioner DeBone is not present on set meetings) November 26. Tuesday, November 27 (morning / afternoon) The Barnes and Sawyer rooms are unavailable: November 27 in the evening due to a Public Hearing Wednesday, November 28 Hearings Officer proceeding. (morning) November 28 in the evening due to the Thursday, November 29 Victims' Impact Panel. (afternoon) a November 29 in the morning and evening due to a MPO Policy Board meeting and a Friday, November 30 Hearings Officer proceeding. (morning / afternoon) If the Board is interested in an open record Open Record Period An open record is not period, it will be significantly limited due to the required per County Code. December 3 or 12 deliberation date. December 3 is preferable to ensure the draft Deliberation December 3 (or 12) final decision is timely prepared for the Board. Final Decision December 19 None. 150th Day December 20 None. 11 7 NW I afayett.e Aven .u-, Fend, oregon 97703 ( P.O. E -"Ox 6005' fiend, OR 97708-6005 QN (')4 i 8E r, ,75 @ cdd(cbdeschute.s .org ( �n�wv� descl Butes cn 3/cd BACKGROUND The applicant requested approval of a Tentative Plan (TP) for the initial phase of the Thornburgh Destination Resort. This phase (A-1) includes a subdivision for 192 single-family lots, 24 additional single-family lots to be deed -restricted for overnight lodging units, 13 lots dedicated to overnight lodging units, private roads, emergency access roads, and lots and tracts for the development of resort facilities and utility facilities, as well as open space. The applicant submitted an associated Site Plan Review (SP) for the development of certain utility facilities including a well, a well house, pump house, a reservoir, and an interim subsurface sewage disposal system. Additionally, the applicant submitted a Modification of Application (MA), to relocate the well, well house, pump house, and reservoir to the southern portion of the property. The Thornburgh Destination Resort has a long and complex history. The Conceptual Master Plan (CMP) was applied for in 2005. The Final Master Plan (FMP) was originally applied for in 2007. Years of litigation has resulted in the FMP being recently affirmed by LUBA in 2018. As of the date of this memo, staff is unaware if the FMP has been appealed to the Court of Appeals. 11. HEARINGS OFFICER DECISION The Hearings Officer issued a decision on October 30, 2018, approving the applications (Attachment 3). III. BOARD OPTIONS Attachments 1 and 2 are two orders, one to hear the appeal and one to decline the review. In determining whether to hear an appeal, the Board may consider: 1. The record developed before the lower Hearings Body (attached in reverse chronological order); 2. The notice of appeal (if filed by 11 /7 staff will bring copies to the work session); and 3. Recommendations of staff. Reasons to hear: The Board may want to take testimony and make interpretative issues relating to the Hearings Officer's decision. The Board may also want to reinforce or refute some or all of the decision findings/interpretations prior to Land Use Board of Appeals (LUBA) review. Reasons not to hear: The Hearings Officer's decision is reasoned, well written, and could be supported as the record exists today on appeal to LUBA. If the Board accepts review of the appeal, staff's recommendation is that a hearing and decision timeline laid out in Table 1 above is followed. If the Board declines review, the applicant will have a final local land use approval upon mailing the Board's Order. Table of Contents/Attachments: 1) 2018-10-31 Board Order 2018-072 to Accept Review of Appeal 2) 2018-10-31 Board Order 2018-073 to Decline Review of Appeal 3) 2018-10-30 Hearings Officer Decision 4) 2018-10-30 Notice of Hearings Officer Decision 5) 2018-10-29 Comment from ODFW 6) 2018-10-25 S Junkins Email 7) 2018-10-21 email from Hearing Officer to Attorneys RE water permit & IDP 8) 2018-10-16 S Junkins email 9) 2018-10-12 Open Record Objection J Wilkes Email and Letter 10) 2018-10-10 Open Record Objection P Dewey Email and Letter 11) 2018-10-09 Open Record Period 3 - K DeLashmutt Email RE KD Final Argument 12) 2018-10-08 Open Record Period 3 - L Fancher Email 13) 2018-10-08 Open Record Period 3 - L Fancher Email RE Final Arguments 14) 2018-09-28 Recd after open record W Krebs Email 15) 2018-09-25 Open Record Period 2 - Susan Payne Email 16) 2018-09-25 Open Record Period 2 - P. Dewey 17) 2018-09-25 Open Record Period 2 - Nunzie Email 18) 2018-09-25 Open Record Period 2 -N Gould Email 19) 2018-09-25 Open Record Period 2 - L Hurd Email 20) 2018-09-25 Open Record Period 2 - L Fancher Email 21) 2018-09-25 Open Record Period 2 - K DeLashmutt Email 22) 2018-09-25 Open Record Period 2 - HWA drawings 23) 2018-09-25 Open Record Period 2 - D Holcomb Email 24) 2018-09-25 Open Record Period 2 - CO Landwatch 25) 2018-09-25 Open Record Period 2 - Applicant - L. Fancher 26) 2018-09-19 Open Record Period 2 - Frank and Darlene Email 27) 2018-09-17 Open Record Period 2 - M Scheiblehner 2 28) 2018-09-17 Open Record Period 2 - M Scheiblehner 1 29) 2018-09-14 Open Record Period 2 - M Konigsberg Email 30) 2018-09-14 Open Record Period 2 - G Hunt Email 31) 2018-09-13 Open Record Period 2 - L Bakewell Email 32) 2018-09-12 Open Record Period 2 - W Mckenzie Email 33) 2018-09-12 Open Record Period 2 - R Olin Email 34) 2018-09-12 Open Record Period 2 - H Robertson Email 35) 2018-09-12 Open Record Period 2 - D Kleber Email 36) 2018-09-12 Open Record Period 2 - B Barraclough Email 37) 2018-09-11 Open Record Period 2 - Gail Burton 38) 2018-09-11 Open Record Period 1 - Tonkon Torp Letter 39) 2018-09-11 Open Record Period 1 - Susan Payne Email w -attachments 40) 2018-09-11 Open Record Period 1 - Susan Payne Email w -attachments 2 41) 2018-09-11 Open Record Period 1 - Susan Payne Email w -attachments 3 42) 2018-09-11 Open Record Period 1 - Susan Payne Email w -attachments 4 43) 2018-09-11 Open Record Period 1 - Susan Hart Email 44) 2018-09-11 Open Record Period 1 - Staff Memo re 150 -Day Clock 45) 2018-09-11 Open Record Period 1 - Robin Burton Email 46) 2018-09-11 Open Record Period 1 - Pete and Gretchen Pederson Email 47) 2018-09-11 Open Record Period 1 - Paul Lipscomb Email 48) 2018-09-11 Open Record Period 1 - P. Dewey 49) 2018-09-11 Open Record Period 1 = Nunzie Gould Email 50) 2018-09-11 Open Record Period 1 - N. Gould 51) 2018-09-11 Open Record Period 1 - Lynne Dorsey Email 52) 2018-09-11 Open Record Period 1 - L. Francher re Applicants response to hearing testimony 53) 2018-09-11 Open Record Period 1 -Jim Henson Email 54) 2018-09-11 Open Record Period 1 -J. Newman of Tonkin Torp RE water rights 55) 2018-09-11 Open Record Period 1 - Heather Robertson Email 56) 2018-09-11 Open Record Period 1 - Central Land and Cattle LLC re Hearing Testimony Response 57) 2018-09-11 Open Record Period 1 - Barry Larson Email 58) 2018-09-11 Open Record Period 1 - A Kammerer Email 59) 2018-09-10 Open Record Period 1 -Ted Keener Email 60) 2018-09-10 Open Record Period 1 - Russ Holmberg Email 61) 2018-09-10 Open Record Period 1 - Ross Schultz Email 62) 2018-09-10 Open Record Period 1 - Rita Olin Email 63) 2018-09-10 Open Record Period 1 - Matilda Konigsberg Email 64) 2018-09-10 Open Record Period 1 - Lori Grassman Email 65) 2018-09-10 Open Record Period 1 - Lexie Bakewell Email 66) 2018-09-10 Open Record Period 1 - David Kleber Email 67) 2018-09-10 Open Record Period 1 - Christine Larson Email 68) 2018-09-09 Open Record Period 1 - Mel Stout Email 69) 2018-09-09 Open Record Period 1 - Gilian Burton Email 70) 2018-09-09 Open Record Period 1 - Frank and Diane Email 71) 2018-09-09 Open Record Period 1 - Eric Hartwig Email 72) 2018-09-09 Open Record Period 1 - Don Barber Email 73) 2018-09-09 Open Record Period 1 - Deborah Medlar Email 74) 2018-09-09 Open Record Period 1 - David Booth Email 75) 2018-09-09 Open Record Period 1 - Darrin Hauser Email 76) 2018-09-09 Open Record Period 1 - Cynthia Bendure email 77) 2018-09-09 Open Record Period 1 - Barbara Faunce email 78) 2018-09-08 Open Record Period 1 -Wally McKenzie Email 79) 2018-09-08 Open Record Period 1 - Susan De Lapp Email 80) 2018-09-08 Open Record Period 1 - Roger Gilles Email 81) 2018-09-08 Open Record Period 1 - Lynne Henze Email 82) 2018-09-08 Open Record Period 1 - Kay Griffith Email 83) 2018-09-08 Open Record Period 1 -Jack Mumford Email 84) 2018-09-08 Open Record Period 1 - Gerald Person Email 85) 2018-09-08 Open Record Period 1 - Don Ginter Email 86) 2018-09-08 Open Record Period 1 - Brent Barraclough Email 87) 2018-09-08 Open Record Period 1 -Anthony Adrain Email 88) 2018-09-07 Open Record Period 1 - V. Phelps 89) 2018-09-07 Open Record Period 1 -Tom Marantette Email 90) 2018-09-07 Open Record Period 1 - Mike and Shari McCall Email 91) 2018-09-07 Open Record Period 1 - Katherine Harris Email 92) 2018-09-07 Open Record Period 1 - Katherine Harris Email 2 93) 2018-09-07 Open Record Period 1 -John Betts Email 94) 2018-09-07 Open Record Period 1 - H. &J. McDonnell 95) 2018-09-07 Open Record Period 1 - Earl Nelson Email 96) 2018-09-07 Open Record Period 1 - D. Shaw 97) 2018-09-07 Open Record Period 1 - Christopher Sweistris 98) 2018-09-07 Open Record Period 1 - Carolyn Wise Email 99) 2018-09-07 Open Record Period 1 - C. & R. Clark 100) 2018-09-07 Open Record Period 1 - Bob Smith Email 101) 2018-09-07 Open Record Period 1 - Beth Mclvoy Email 102) 2018-09-07 Open Record Period 1 - A. Walterscheid 103) 2018-09-05 Open Record Period 1 - C. Wise 104) 2018-09-04 Open Record Period 1 - N. Engebretson 105) 2018-08-31 Open Record Period 1 - ODOT - Contribution Agreement 106) 2018-08-30 Comment from DSL WLUN Response 107) 2018-08-28 Hearings Officer Hearing (Continued) Public Agenda 108) 2018-08-28 Hearing Testimony Sign In Sheet 109) 2018-08-28 Hearing Exhibits - Exhibit Schedule 110) 2018-08-28 Hearing Exhibits - Exhibit A 111) 2018-08-28 Hearing Exhibits - Exhibit B 112) 2018-08-28 Hearing Exhibits - Exhibit C 113) 2018-08-28 Hearing Exhibits - Exhibit D 114) 2018-08-28 Hearing Exhibits - Exhibit E 115) 2018-08-28 Hearing Exhibits - Exhibit F 116) 2018-08-28 Hearing Exhibits - Exhibit G 117) 2018-08-28 Comment from Central Oregon Land Watch 118) 2018-08-24 Comments from OWRD re D. Arnold Inquiry Permit G-17036 119) 2018-08-23 Comments from D. Arnold 120) 2018-08-21 LUBA No 2018-008 Gould v Deschutes County (FMP) 121) 2018-08-14 Water Rights Extention 122) 2018-08-14 Revised Trip Debit Letter (2nd Revision) 123) 2018-08-14 Hearings Officer Hearing Public Agenda 124) 2018-08-14 Area Map for Public Hearing 125) 2018-08-10 Addl Comment from Building Division 126) 2018-08-09 Email exchange re Redmond Fire's comments 127) 2018-08-01 Staff Report 18 -386 -TP, 454 -SP, 592 -MA 128) 2018-07-30 NOA to Sheriff's Office 129) 2018-07-27 Wetland Land Use Notification 130) 2018-07-23 Application Materials 247 -18 -000592 -MA - Application 131) 2018-07-23 Application Materials 247 -18 -000592 -MA - Burden of Proof 132) 2018-07-23 Application Materials 247 -18 -000592 -MA - Modified Site Plan Drawings 133) 2018-07-19 Comments from ODOT 134) 2018-07-17 Notice of Public Hearing - Bend Bulletin 135) 2018-07-16 Comments from DEQ 136) 2018-07-12 Comments from Oregon Drinking Water Program 137) 2018-07-10 Notice of Public Hearing 138) 2018-06-19 Comments from Redmond Fire 18 -454 -SP 139) 2018-06-18 Land Use Action Sign Affidavit 18 -454 -SP 140) 2018-06-14 Comment from P. Dewey 141) 2018-06-12 Comments from COID 18 -454 -SP 142) 142)2018-06-11 Incomplete Response Materials 2 of 2 re Incomplete Letter 143) 2018-06-11 Additional Info re Turn Lane & ROW Dedication 144) 2018-06-08 Comments from Environmental Soils 18 -454 -SP 145) 2018-06-06 Incomplete Response Materials 1 of 2 re Traffic 146) 2018-06-06 Comments from DEQ 18 -454 -SP 147) 2018-06-05 Land Use Sign Email 18 -454 -SP 148) 2018-06-05 Comments from and Response to S. Payne 149) 2018-06-04 Notice of Application 18 -454 -SP 150) 2018-06-04 Comments from Sr. Transportation Planner 18 -386 -TP 151) 2018-06-03 Comments from P. Dewey 152) 2018-06-03 Comments from D. Arnold 153) 2018-06-01 Comments from Road Department 18 -386 -TP 154) 2018-06-01 Application Materials 247 -18 -000454 -SP - Site Plan Drawings 155) 2018-06-01 Application Materials 247 -18 -000454 -SP - Burden of Proof 156) 2018-06-01 Application Materials 247 -18 -000454 -SP - Application 157) 2018-05-31 Revised Traffic Debit Letter 158) 2018-05-31 Incomplete Letter 247 -18 -000386 -TP 159) 2018-05-31 Comments from ODOT 18 -386 -TP 160) 2018-05-30 Land Use Action Sign Affidavit 18 -386 -TP 161) 2018-05-30 Comments from Sr. Transportation Planner 18 -386 -TP 162) 2018-05-30 Comments from Health Services 18 -386 -TP 163) 2018-05-29 Comments from P. Dewey 164) 2018-05-25 Comments from DSL 18 -386 -TP 165) 2018-05-21 Comments from Redmond Fire 18 -386 -SP 166) 2018-05-17 Comments from COID 18 -386 -TP 167) 2018-05-15 Comments from Building Division 18 -386 -TP 168) 2018-05-10 Notice of Application 18 -386 -TP 169) 2018-05-07 Land Use Sign Email 18 -386 -TP 170) 2018-05-02 Application Materials 247 -18 -000386 -TP - Application & Table of Contents 171) 2018-05-02 Application Materials 247 -18 -000386 -TP - Burden of Proof 172) 2018-05-02 Application Materials 247 -18 -000386 -TP - Phase A-1 Tentative Plan Drawings 173) 2018-05-02 Application Materials 247 -18 -000386 -TP - Exhibit 1 174) 2018-05-02 Application Materials 247 -18 -000386 -TP - Exhibit 2 175) 2018-05-02 Application Materials 247 -18 -000386 -TP - Exhibit 3 176) 2018-05-02 Application Materials 247 -18 -000386 -TP - Exhibit 4 177) 2018-05-02 Application Materials 247 -18 -000386 -TP - Exhibit 5 178) 2018-05-02 Application Materials 247 -18 -000386 -TP - Exhibit 6 179) 2018-05-02 Application Materials 247 -18 -000386 -TP - Exhibit 7 180) 2018-05-02 Application Materials 247 -18 -000386 -TP - Exhibit 8 181) 2018-05-02 Application Materials 247 -18 -000386 -TP - Exhibit 9 182) 2018-05-02 Application Materials 247 -18 -000386 -TP - Exhibit 10 REVIEWED LEGAL COUNSEL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Accepting Review of Tentative Plan, Site Plan Review, and Modification of * ORDER NO. 2018-072 Application in File Nos. 247 -18 -000386 -TP, 247- 18 -000454 -SP, and 247 -18 -000592 -MA. WHEREAS, on October 30, 2018, the Deschutes County Hearings Officer issued an approval of a Tentative Plan, Site Plan Review, and Modification of Application, File Nos. 247 -18 -000386 -TP, 247 -18 -000454 - SP, and 247 -18 -000592 -MA; and WHEREAS, Section 22.28.050 of the Deschutes County Code authorizes the Board of County Commissioners ("Board") to initiate review of any administrative action or a Hearings Body's decision within 12 days of the date of mailing of the final written decision of the Planning Director or lower Hearings Body; and WHEREAS, the Board has given due consideration as to whether to review this application; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. Should a timely appeal of File Nos. 247 -18 -000386 -TP, 247 -18 -000454 -SP, and 247 -18- 000592 -MA be filed, the Board of County Commissioners will serve as the hearings body for the appeal consistent with applicable provisions of the DCC, including DCC 22.32.027(B)(4). Section 2. The review shall be heard de novo. Section 3. Staff shall set a hearing date and cause notice to be given to persons or parties entitled to notice pursuant to DCC 22.24.030 and 22.32.030. Dated this of October, 2018 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ATTEST: Recording Secretary PAGE 1 OF 1- ORDER No. 2018-072 ANTHONY DEBONE, Chair PHILIP G. HENDERSON, Vice Chair TAMMY BANEY, Commissioner - Deschutes County Board of Commissioners d" 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 Work Session of November 7, 2018 DATE: November 2, 2018 FROM: Zechariah Heck, Community Development, 541-385-1704 TITLE OF AGENDA ITEM: Consideration of Public Hearing and Deliberation Schedule, Westside Transect Zone ATTENDANCE: Zechariah Heck, Associate Planner. SUMMARY: The purpose of this agenda item is to determine if the Board is interested in conducting a public hearing on the Westside Transect Zone in late November, deliberations in December, and a final decision on January 2, 2019. If the presented timetable is unrealistic, staff will coordinate with the Board in the new year to schedule a public hearing. The Board must review the application because the request involves a quasi-judicial zone change and plan amendment that necessitates exceptions to the statewide planning goals. A Deschutes County Hearings Officer has recommended approval of the proposal. The application is exempt from the 150 -day time limit. MEMORANDUM DATE: November 7, 2018 TO: Board of County Commissioners FROM: Zechariah Heck, Associate Planner COMMUN�FTY DEVELOPMENT RE: Westside Transect Zone / Scheduling Public Hearing The purpose of this memorandum is to determine if the Board of County Commissioners (Board) is interested in conducting a public hearing on the "Westside Transect Zone" in late November, deliberations in December, and a final decision on January 2, 2019. If so, it requires a compressed timeline. Table 1 provides potential dates for the Board to consider. Table 1 - Potential Timeline Topic Dates Staff Comments Commissioner DeBone is not present on November 26. Monday, November 26 (morning and/or evening meeting) The Barnes and Sawyer rooms are unavailable: Tuesday, November 27 (morning November 27 in the evening / afternoon) due to a Hearings Officer Public Hearing Wednesday, November 28 proceeding. (morning) • November 28 in the evening Thursday, November 29 due to a Victims' Impact Panel. (afternoon) • November 29 in the morning Friday, November 30 and evening due to a MPO (morning / afternoon) Policy Board meeting and a Hearings Officer proceeding..._ If the Board is interested an open record period, it will be Open Record Period Not required per County Code. significantly limited due to the December 12 deliberation date. Deliberation December 12 None Deliberation; Consideration of December 19 None 1St reading Consideration of 2nd reading January 2 None 11 7 NW I afayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 9//08 6005 (541):388-6575 a cdd v desd utes .org ) www.deschutes.orgicd If the timetable above is unrealistic, staff will coordinate with the Board in early 2019 to schedule a public hearing. A 150 -day deadline for issuing a final decision is not applicable with this application. 1. BACKGROUND Several property owners have proposed to amend the Deschutes County Comprehensive Plan and add a new "Westside Transect Zone" to Title 18, County Zoning. The Westside Transect Zone (WTZ) is intended to provide for a transition area between urban transect areas within the City of Bend (to the east) and Shevlin Park, Tumalo Creek, and forest zoned lands (to the west). If approved, development within the WTZ will include rural residential subdivisions with dedicated open space and resource management corridors with funded and enforceable provisions forthe management of wildlife habitat and wildfire prevention and mitigation plans. The WTZ application was submitted on August 1, 2018. A public hearing was held on September 11, 2018, by a Deschutes County Hearings Officer. The hearing was well attended and filled the Barnes and Sawyer meeting rooms. Most of the testimony supported the proposal. The open record period closed October 2, 2018. II. HEARINGS OFFICER DECISION The Hearings Officer issued a decision on November 2, 2018, recommending approval of the applicants' proposal with conditions (Attachment 1). The Hearings Officer highlighted the role of the Board in reviewing the application and determining the appropriateness of the WTZ on a policy level. The Hearings Officer's recommendation is a summary of the major issues raised and the Hearings Officer's perspective on those issues. The following bullet points summarize the major issues identified in the decision. Statewide Planning Goal Exceptions The applicants argued that exceptions to the Statewide Planning Goals were not necessary. The City of Bend disagreed, underscoring that exceptions to Goals 3, 4 and 14 should be required. County staff concurred and in the Staff Report stated, "Allowing any urban reserve land to be re -designated to a 2.5 -acre density without a Goal 14 Exception would severely compromise future urbanization." The Hearings Officer found that exceptions to Goals 3, 4 and 14 should be required. Furthermore, the applicants provided proposed findings addressing the goal exception process. The Hearings Officer adopted the applicants' findings and found them adequate for approval. Density During the application process the number of proposed lots varied. However, the applicants agreed, and it was reflected in a revised WTZ ordinance, that the maximum number of lots for the proposed zone would be 187. Several neighbors expressed concern about the amount of dwelling units. The Hearings Officer did not make specific findings on the appropriateness of the proposed density. Transportation Planning Rule Concerns were expressed the application did not meet the requirements of the Transportation Planning Rule (TPR). Specifically, the City requested Applicants' need to obtain a written statement from the City that the system -wide benefits of mitigation are sufficient to balance the significant effects of the proposal, even though the improvements would not result in consistency for all performance standards. The Hearings Officer found the Development Agreement provided by the applicants was sufficient for such a written statement. The Hearings Officer conditioned the recommendations of approval upon the execution of the Development Agreement by the applicants. State Scenic River Regulations The Oregon Parks and Recreation Department (OPRD) expressed concern that the application failed to address the scenic and recreational resources of the designated Deschutes River State Scenic Waterway. OPRD speculated that changing the amount and type of development could change the character of that stretch of the waterway and the classification category "recreation river area". The Hearings Officer agreed with the applicant and found the area of concern was steeply slopped and would likely not see development. Nonetheless, the Hearings Officer stated any future development should be required to comply with the State Scenic Waterway regulations. Fire Mitigation Several members of the public expressed concern about development in a wildfire -prone area. The Hearings Officer agreed with the applicants, recognizing that the record contains ample evidence of the measures to which fire danger has been studied and the proposed code requirements, DCC 19.22.060A -C, ensure fire mitigation measures will be implemented, monitored and maintained prior to and in perpetuity for any development in the WTZ. Wildlife Habitat Preservation The application materials include a wildlife habitat report that details the existing conditions for habitat within the subject property. The proposed zone also requires land divisions to establish a Home Owners Association that funds a continuous wildlife habitat assessment by a professional biologist. The Hearings Officer found the proposed zone includes adequate provisions to minimize impacts to wildlife. Neighbor Impacts Several property owners in the vicinity of the WTZ expressed concern over decreased property values because of the proposed development. The Hearings Officer found there was no persuasive evidence in the record to support the neighbors' concerns. Additionally, the Hearings Officer found the applicants' proposal will not interfere with existing development or the value of other land in the vicinity. The Hearings Officer determined the proposed WTZ ordinance adequately addresses potential impacts to neighboring properties and that the proposed uses are more restrictive/limited than those permitted under the current zone, i.e., Urban Area Reserve -10. 1111. BOARD REVIEW AND DECISION Per Deschutes County Code, all quasi-judicial zone changes and plan amendments shall be reviewed by the Board if the proposal requires an exception to the statewide planning goals. Additionally, the applicants are proposing a new zone (WTZ) in Title 18 which also requires Board approval. The Board is required to hear the application de novo. Attachment: Hearings Officer Recommendation FINDINGS AND RECOMMENDATIONS OF THE DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: HEARING DATE: HEARING LOCATION APPLICANTS/OWNERS: 247-18-000612-ZC, 247 -18 -000613 -PA, 247 -18 -000614 -TA September 11, 2018, 6:00 p.m. Barnes & Sawyer Rooms Deschutes Services Center 1300 NW Wall Street Bend, OR 97708 Eric and Robin Coats; Kyles Coats; ERMK, LLC; CCCC, LLC; Bend La Pine School District; Matt Day; Rio Lobo Investments, LLC. AGENTS FOR APPLICANTS: Tia M. Lewis Schwabe, Williamson and Wyatt, PC 360 SW Bond Street, Suite 500 Bend, OR 97702 Myles Conway Marten Law PLLC 404 SW Columbia Street, Suite 212 Bend, OR 97702 REQUEST: Applicants request approval of a comprehensive plan and zoning text amendment as well as a zone change of approximately 717 acres of land from Urban Area Reserve and Surface Mine to the proposed "Westside Transect Zone." STAFF CONTACT: Zechariah Heck, Associate Planner HEARINGS OFFICER: Gregory J. Frank SUMMARY OF DECISION: The Hearings Officer recommends the Deschutes County Board of County Commissioners approve Applicants' proposal to amend the Deschutes County Comprehensive Plan and Zoning Text, approve a zone change and approve Statewide Planning exceptions for Goal 3, Goal 4 and Goal 14, with conditions. 1 I. APPLICABLE STANDARDS AND CRITERIA Deschutes County Code Bend Urban Growth Boundary Zoning Ordinance: Title 19 Procedures Ordinance: Title 22 Comprehensive Plan: Title 23 Oregon Administrative Rules OAR 660 Division 4, Interpretation of Goal 2 Exception Process Division 11, Public Facilities Planning Division 12, Transportation Planning Division 14, Application of Statewide Planning Goals to... Urban Development on Rural Lands Division 15, the Statewide Planning Goals and Guidelines IL SYLLABUS Reason for Syllabus: The Hearings Officer acknowledges the complexity of the application in this case. The Hearings Officer also appreciates that the Hearings Officer's recommendations (the "Recommendations"), in this case, will undergo a de novo review by the Deschutes County Board of County Commissioners (the "Commission"). This Syllabus is not intended to be the Hearings Officer's legal findings; the complete legal findings follow the Syllabus. The Syllabus provides the reader of the Recommendations a summary of the major issues raised in this case and the Hearings Officer's perspective on those issues. Summary of Application: Eric and Robin Coats, Kyles Coats, ERMK LLC, CCCC LLC, Bend La Pine School District, Matt Day, Rio Lobo Investments (the "Applicants") submitted an application with Deschutes County requesting approval of amendments to the Deschutes County Comprehensive Plan ("DCCP"), Bend Urban Growth Boundary Zoning Ordinance ("Title 19") and possible goal exceptions to Oregon Statewide Planning Goals ("Goals") 3, 4 and 14. Applicants proposed to add a new zone (Westside Transect Zone - hereafter the "WTZ"). The property subject to the application ("Subject Property") is approximately, per applicant (See Applicants' Proposed Findings - page 1), 717 acres and is located west of the City of Bend and East of Shevlin Park and Tumalo Creek. The application divided the Subject Property by the ownership of the Coats/EMRK/La Pine School District ("North Property") and Matt Day/Rio Lobo ("South Property"). Listing of Major Issues Addressed in the Syllabus: The issues listed below are those that the Hearings Officer believed to be significant and were clearly raised by participants during the hearing process. The Hearings Officer does not represent that the issues highlighted/summarized below include all issues raised during the application or even all issues important to participants. Issue #11: Is/Are Statewide Planning Goal Exceptions Required? By way of background, the term "Goals," under Oregon planning law, refers to the "mandatory statewide planning standards ("Goals") adopted by" the Oregon Land Conservation and Development Commission ("LCDC"). The term "exception", under Oregon planning law, refers to when the literal application of a Goal may not be allowed or possible; similar in concept to a "variance." Finally, the term "resource lands", for the purpose of this application, refers land that is considered Agricultural Land (Goal 3) and/or Forest Land (Goal 4). Goal 3 and Goal 4: Applicants, in the Burden of Proof Statement and testimony at the public hearing, asserted that no Goal exceptions were required in this case. Applicants argued that the Subject Property was not and is not currently resource land, as defined and interpreted by courts and LCDC, and therefore Goal exceptions for Agricultural Lands (Goal 3) and Forest Lands (Goal 4) is/are not necessary in this application process. The City of Bend (the "City"), in a Memorandum dated December 1, 2017, argued that the Hearings Officer should recommend to the Commission that "new" Statewide Planning Goal exceptions for Goals 3 and 4 must be taken. The City's argument relied heavily upon a 1980 Exceptions Statement (copy attached to Applicant's Burden Statement - Exhibit D). in summary, the 1980 Exceptions Statement was adopted by Deschutes County in response to LCDC's direction and included "all lands remaining outside the 1980 Bend Urban Growth Boundary." The 1980 Exceptions statement stated "the City and County are taking an exception to Goals 3 and 4 as they relate" to the Subject Property (and other property outside the City urban growth boundary). Applicants, Deschutes County Community Development staff ("Staff") and the City agree that the 1980 Exceptions Statement included the Subject Property. The City argued that Applicants' proposed minimum density of one residential lot for every 2.5 acres constitutes an increase in density and/or intensity over what was approved/allowed by the 1980 Exceptions Statement. The City cited Oregon Administrative Rule ("OAR") 660-004-0018 (1) which states, in part, that "exceptions to one goal or a portion of one goal ... do[es] not authorize uses, densities, public facilities and service, or activities other than those recognized or justified by the applicable exception." The City argued that the 1980 Exceptions Statement designated the Subject Property as an "urban reserve area" with a zoning classification of UAR-10 or "other protective zone." UAR-10 generally allows a minimum lot size or density of one lot per 10 acres. The City noted the 1980 Exception Statement also recognized, for areas already physically developed, a more intensive zoning designation of SR 2.5 (one lot per 2.5 acres). The City argued that a minimum density of one lot per 2.5 acres for the entire Subject Property, which was not physically developed (in whole or part), required a "new" or "revised" exception statement. Staff generally agreed with the City Goal 3 and Goal 4 exceptions arguments set forth in this paragraph. Staff, in the Staff Report, requested the Hearings Officer find that "new" Goal 3 and Goal 4 exceptions must be taken as part of any approval of this application. M The Hearings Officer found that the Subject Property was, before and at the time of adoption the 1980 Exception Statement was approved, "marginal resource land." Therefore, the County did approve exceptions to Goals 3 and 4 for the Subject Property. The Hearings Officer found that Applicants' proposed 2.5 acre minimum lot size, for the entire Subject Property, is a change in density (minimum lot size) compared to what was approved in the 1980 Exception Statement. The Hearings Officer found that "new" exceptions must be taken for Goals 3 and 4. It should be noted that Applicants, in anticipation of the possibility that the Hearings Officer and/or Commission found a "new" or "revised" exception(s) for Goal 3 and/or Goal 4 was/were required, provided proposed findings. The Hearings Officer found that Applicants proposed findings for "new" exceptions for Goal 3 and Goal 4 met relevant laws/rules. A careful reader of the Recommendations may perceive that the Hearings Officer findings that "new" Goal 3 and Goal 4 exceptions are required is inconsistent with the findings that Applicants' met the requirements for "new" Goal 3 and Goal 4 exceptions. The possible perceived inconsistency relates to evidence provided by Applicants that the Subject Property is not currently agricultural or forest land. The Hearings Officer acknowledged that Applicants proffered evidence that the Subject Property is not currently agricultural or forest land is credible. However, the careful reader will also note that the Hearings Officer's conclusion that "new" Goal 3 and Goal 4 exceptions are required is based upon circumstances existing at the time of the application; Goal 3 and Goal 4 exceptions were taken for the Subject Property because, as of the 1980 Exception Statement, the Subject Property was "marginal resource land" necessitating (at that time) Goal 3 and Goal 4 exceptions. Applicants' provided new information which the Hearings Officer found justified exceptions be taken for Goal 3 and Goal 4. Goal 14: Goal 14, titled Urbanization, is focused on the orderly and efficient transition from rural and restricts the conversion of rural land to urban use. Applicants argued that the proposed WTZ zone minimum lot size of one lot per 2.5 acres is a rural use. The City and County Staff argued that the proposed WTZ zone minimum lot size of 2.5 acres is better characterized as an urban use. If the City and County Staff are correct then a Goal 14 exception is required. Applicants and the City provided Goal 14 textual analysis and case law references in support of their arguments that the proposed WTZ zone minimum lot size of 2.5 acres per lot should be characterized as rural or urban. Based upon the Hearings Officer's review of the Goal 14 text and relevant Land Use Board of Appeals ("LUBA") and court cases, it is clear that there is no universally accepted formula for determining whether a particular minimum lot size (density) results in an urban or rural use category. The Hearings Officer notes that a 10 -acre lot minimum, in most instances, would be considered rural and a 1 -acre lot minimum lot size would be considered urban. The proposed 2.5 -acre minimum lot size is in a grey area; not definitively rural but also not definitively urban. The Hearings Officer concluded that any recommendation to the Commission, regarding the characterization of the WTZ zone minimum lot size, would be subject to reasonable arguments from both sides. In the end the Hearings Officer found that 4 the most prudent recommendation to the Commission was that the proposed WTZ zone minimum lot size of 2.5 acres is a change from the minimum lot size provided in the 1980 Exception Statement and existing zoning. Therefore, the Hearings Officer found that a Goal 14 exception is required in this case. Applicants' Proposed Findings for Goal 3, Goal 4 and Goal 14: Applicants provided "proposed findings" for taking of exceptions for Goal 3, Goal 4 and Goal 14. The Hearings Officer found the "proposed findings" for exceptions for Goal 3, Goal 4 and Goal 14 met all relevant requirements. Issue #2: How many lots allowed? During the application process the number of proposed lots varied. Applicants agreed, and it is reflected in the attached proposed WTZ zoning ordinance, that the maximum number of lots for the WTZ Subject Property is 187. Issue #3: Does the application meet the requirements of the TPR? Concerns were expressed that the application did not meet the requirements of the Transportation Planning Rule ("TPR"). Specifically, the City requested Applicants' need to obtain a written statement from the City that the systemwide benefits of mitigation are sufficient to balance the significant effects of the proposal, even though the improvements would not result in consistency for all performance standards. The Hearings Officer found that the Development Agreement attached to Applicants' 9/25/18 letter to the Hearings Officer would suffice as such a written statement. The Hearings Officer conditioned the Recommendations of approval upon the execution of the Development Agreement by Applicants or the City and Applicants agree to an alternative that meets the "written statement" requirement of the TPR. Issue #4• Are the Applicants required to provide "public access" to trails and should trail locations be established as part of any approval of the application in this case? Bend Parks and Recreation, the Oregon Parks and Recreation Department, among others, expressed a desire that trails created in future land divisions on the Subject Property be required to be "public" and also to connect to public trails/accessways. Bend Parks and Recreation requested the Recommendations be conditioned upon (1) annexation of the North Property into the Park District, (2) include additional language in DCC 19.22.060 (add the words "trails" and "including trails"), and (3) clarify the meaning of "parks and recreation facilities." Additionally, comments were received from participants in the process suggesting that trails and trail connections should be made a part of any approval of this application. The Hearings Officer found that the Deschutes County Comprehensive Plan does not require "public" recreational trails through or within the Subject Property. The Hearings Officer found Applicants' did not object to future annexation, as legally appropriate, into the Parks and Recreation District. Applicants' did not object to adding the "trails" language to the WTZ zoning code. The Hearings Officer found that Applicants proposal had sufficient/adequate built-in standards to ensure future developments within the WTZ boundary would comply with Deschutes County 61 Comprehensive Plan policies. The Hearings Officer found approval of DCC 19.22, as modified, would meet open space, parks and trail/accessway requirements. Issue #5• Did Applicants adequately coordinate with shareholders regarding access to habitat? Staff, among others, expressed concerns that Applicants may not have adequately coordinated with stakeholders regarding access to wildlife habitat. The Hearings Officer found Applicants did adequately coordinate with stakeholders related to access to wildlife habitat. Issue #6• Did Applicants adequately address Scenic River laws/regulations? Oregon Parks and Recreation Department raised issues related to the proximity of the Subject Property and the Deschutes River. Oregon Parks and Recreation appeared to dispute Applicants' position that there are no legally identified Goal 5 resources on the Subject Property; Oregon Parks noted that the North Property borders the Deschutes River - an Oregon Scenic Waterway. The Hearings Officer agreed with Applicants that no Goal 5 resources have been identified by the County to exist on the Subject Property. The Hearings Officer agreed with Applicants that the actions proposed in this application need not, at this time, demonstrate compliance the Oregon Scenic Waterway laws/rules. However, the Hearings Officer found that future development in areas that may be subject to the Oregon Scenic Waterway laws/rules must comply (at the time development is proposed) with such laws/rules. III. FINDINGS OF FACT A. LOCATION: The application involves several properties detailed in Table 1, below. Note: Applicants divided and labeled the subject properties into the "North Property" and the "South Property" (collectively referred to as the "Subject Property"). Also provided below, Figure 1 displays the North Property and Figure 2 displays the South Property. Table 1 County Assessor MaF "North Property" 1711130000100 1711130000500 1711230000500 1711230000502 1711230000503 1711240000100 1711240000102 1711240000403 1711240000600 1711240000700 1712180000100 1711230000600 "South Property" 1711260000400 1711260000400 1711000006000 No. Situs Address 63285 Skyline Ranch Road 63200 Skyline Ranch Road 19050 Shevlin Park Road No Situs Address No Situs Address 63155 Skyline Ranch Road 63156 Skyline Ranch Road 63055 Skyline Ranch Road 62955 Skyline Ranch Road 62855 Skyline Ranch Road 63555 Skyline Ranch Road No Situs Address 3225 NW Shevlin Park Road 3229 NW Shevlin Park Road 62600 McClain Drive rJ Figure 1 - North Property 4 St' X1 ACRES �s �11h 1-v40t _. Be, Acrars f a 541 zosif.. t I} P{ i# °C , ..i iAi. 14 ACRIES CPQ r � ' n �t 1,7-11-24 .�,1 ACAFS c"� 1 46, '"b�"t� t7-95-24-€0" -PO ZJNC vim" 49 ACRES r +0 PoGY,;€'S 25 A R I?- ins-� ' (SOMD LA.IVit 40, AVRCS AD A&E d 21 j qq t7-fP-23-.2CO 40 ACWS/ F TAN JSl I I 4 bitVit' ST. t 217 A..'Au - ��y�j;1t���� r n'rr r Figure 2 - South Property PARJV v,f A 1z P as ell " M� r> ryll All' 307 -ACRES + A N L ,ez (UA,910 ZONZ) 11 (0,90 4, L 0 B C -f L 2,6 PARJV v,f A 1z P as ell " M� r> ryll All' 307 -ACRES + A N L ,ez (UA,910 ZONZ) 11 (0,90 B. LOT OF RECORD: Consistent with the Hearings Officer's decision in file ZC-08-4, Belveron, the Hearings Officer finds legal lot of record status is not applicable to the present text amendments and rezoning application. C. PROPOSAL: Applicants request approval of amendments to the Comprehensive Plan, Deschutes County Code ("DCC") Chapter 23 and Title 19, together with goal exceptions to Statewide Planning Goals 3, 4 and 14, to add a new zone, the "Westside Transect Zone". In addition, Applicants request approval of a zoning map amendment to change the zoning on the Subject Property from Surface Mining ("SM") and Urban Area Reserve -10 Acre Minimum ("UAR-10") to the proposed Westside Transect Zone ("WTZ"). Note: The DCCP designation of Urban Area Reserve will not change. D. ZONING AND PLAN DESIGNATIONS: The South Property is designated Urban Area Reserve on the Deschutes County Comprehensive Plan Map and currently zoned UAR-10 with a Destination Resort ("DR") overlay. Similarly, the North Property is designated Urban Area Reserve on the Deschutes County Comprehensive Plan Map. Tax lots 500, 502, 503, and 600 of Assessor's Map 17-11-23 are currently zoned UAR-10. Tax lots 100, 102, 403, 600, and 700 of Assessor's Map 17-11-24 are also zoned UAR-10. Tax lots 100 and 500 of Assessor's Map 17-11-13, in addition to tax lot 100 of Assessor's Map 17-12-18, are all currently zoned SM. A portion of tax lot 400 of Assessor's Map 17-11-26, tax lot 6000 of Assessor's Map 17-11-00, were included in the 2016 Bend UGB expansion. A property line adjustment, file no. 247 -18- 000654 -LL, has been submitted to the County to amend the tax lots in order to reflect the UGB expansion. The areas brought into the City of Bend Urban Growth Boundary ("UGB") are not part of this application. E. SITE DESCRIPTION: The South Property is approximately 307 acres and is currently vacant and undeveloped. The Subject Property borders Shevlin Park and Tumalo Creek to the west. Land to the north and east lies within the UGB. The southern end of the South Property borders directly upon the "Miller Tree Farm" subdivision. Most of the Subject Property was burned in connection with the Awbrey Hall fire in 1990. According to the application materials, the intensity and high temperatures associated with that wildfire have resulted in a landscape and soils that can no longer support the regeneration of a Ponderosa Pine forest. The North Property is approximately 378 acres and is adjacent to and supporting an active surface mine. The surface mine is not designated as a Goal 5 resource in the DCCP. According to the application materials, this property has been actively mined for aggregate, sand, and gravel since the 1960s. Starting around 1964, mining activities, including excavation, blasting, crushing, and screening of aggregate, sand, and gravel have occurred at the property. The current boundaries of the DOGAMI operating permit no. 09-0018 are shown on Exhibit 9 of 10 the application materials. An asphalt batch plant, concrete washing area, an office, shop, and truck and storage shed, and a redi-mix operation standby to support the operations at the pit. A number of unimproved roads meander throughout the North Property and some areas have been actively farmed as pasture in the past. There are some single-family residences throughout the North Property. Topography of the Subject Property is gently rolling in the southern portion with steep slopes and rock outcrops in the northeast section of the property. Shevlin Park and Tumalo Creek border the Subject Property to the west and the Deschutes River borders the property on the north-eastern boundary. The 1990 Awbrey-Hall Fire spread onto the North Property resulting in a vegetative landscape dominated by bitterbrush, sage brush and rabbit brush with minimal pine tree regeneration. Existing vegetation includes some ponderosa pine, but mainly juniper trees, native shrubs and grasses. F. SURROUNDING LAND USES: The area surrounding the Subject Property consists of a mix of parks, residential subdivisions, a golf course, surface mining, hobby -farms, and undeveloped lands. A portion of the Subject Property is adjacent to the city limits of Bend. Zoning in the vicinity of the Subject Property is a mixture of Exclusive Farm Use ("EFU"), Forest Use ("F-2"), Open Space and Conservation ("OS&C"), Rural Residential ("RR -10"), SR 2.5, SM, UAR-10, and the City of Bend's Residential Standard Density ("RS") Zone. The neighboring residential subdivisions of the North Property include: Awbrey Glen, Awbrey Meadows, Awbrey Ridge, Awbrey View, Awbrey Court, Cooperstone, Fawnview, Klippel Acres (unrecorded subdivision), Marken Heights, Renaissance, Shevlin Estates, and Valhalla Heights. Two other properties zoned SM are located to the north. Shevlin Park is located to the west. Oregon State Parks and Recreation Department ("OPRY) manages land to the north that is zoned for farm use. Tumalo Creek and Shevlin Park Road are adjacent to the western and southern property boundaries, respectively. The South Property borders Shevlin Park and Tumalo Creek to the west. The South Property borders the City of Bend UGB to the north and east. This area includes the Shevlin Commons and Three Pines subdivisions, together with several parcels recently incorporated into the UGB. The South Property borders a rural residential subdivision of approximately 2 -acre parcels to the south. This development was recently approved by Deschutes County as the "Tree Farm" subdivision. G. SOILS: According to Natural Resources Conservation Service ("NRCS") maps of the area, the subject area, both the North and South Properties, contain eight soil units. The mapped soil units are listed and described below. 61 C Henkle Fryrear-Lava flows complex. 0 to 15 percent slopes: This soil type is comprised of 40 percent Henkle soil and similar inclusions, 35 percent Fryrear soil and similar inclusions, 11 15 percent lava flows, and 10 percent contrasting inclusions. Henkle soils are somewhat excessively drained with moderately rapid permeability. The available water capacity is about 1.5 inches. Fryrear soils are well drained with moderately rapid permeability. The available water capacity is about 2.5 inches. 62D Henkle-Lava flows-Fryrear Complex 15 to 50 percent slopes: This soil complex is composed of 35 percent Henkle soils and similar inclusions, 25 percent Fryrear soils and similar inclusions, and 30 percent lava flows and 10 percent contrasting inclusions. The Henkle soil is somewhat excessively drained with a moderately rapid permeability and an available water capacity of about 1.5 inches. The Fryrear soil is well drained and has a moderately rapid permeability, and an available water capacity of about 2.5 inches. The major use of this soil complex is and livestock grazing and woodland. The NRCS rates this complex as 7E. 72C Laidlaw sandy loam 0 to 15 percent slopes: This soil type is comprised of 85 percent Laidlaw soil and similar inclusions and 15 percent contrasting inclusions. Laidlaw soils are well drained with moderately rapid permeability. The available water capacity is about 8 inches. The major use of this soil is woodland and livestock grazing. Laidlaw soils have an agricultural capability rating of 6E, which is not considered a high-value soil. 85A Lundgren sandy loam, 0 to 3 percent slopes: This soil type is composed of 90 percent Lundgren soil and similar inclusions, and 10 percent contrasting inclusions. The Lundgren soil is well drained with a moderately rapid permeability and an available water capacity of about 5 inches. The major use of this soil type is livestock grazing and woodland. The NRCS rates this soil type as 6S. 101E Redcliff-Lickskillet-Rock outcrop complex 30 to 50% slopes: This soil complex is composed of 60% Redcliff soils and similar inclusions, 20% Lickskillet soils and similar inclusions, 15% Rock outcrop, and 5% contrasting inclusions. The Redcliff soil is well drained with a moderate permeability and an available water capacity of about 2 inches. The Lickskillet soil is well drained with a moderate permeability and an available water capacity of about 1 inch. The major use of this soil complex is livestock grazing. The NRCS rates the Redcliff soil as 6E, the Lickskillet soil as 7E and the Rock outcrop as 8S, with no rating for irrigated land. 106D/1 06E, Redslide-Lickskillet complex: 15 to 30% and 30 to 50% north slopes, respectively. This complex is typically composed of 50 percent Redslide soil and similar inclusions, 30 percent Lickskillet soil and similar inclusions, and 15 percent contrasting inclusions. This complex is found on canyon sides between 2,000 and 4,000 feet in elevation, with native vegetation of western juniper, antelope bitterbrush, mountain big sagebrush, Idaho fescue and grasses. These soils are well drained, with moderately rapid permeability and a water capacity of about 2 inches. Major uses include livestock grazing. The Redslide soil has a soil 12 capability of 6E, and the Lickskillet soil has a soil capability of 7E, with no rating for irrigated land. 155D Wanoga Sandy Loam 15 to 30% slopes: This soil type is typically found in elevations between 2,800 to 4,000 feet. The mean annual precipitation is 12 to 18 inches and the mean annual air temperature: 42 to 47 degrees Fahrenheit. The soil has a frost -free period: 60 to 90 days and is classified as a farmland of statewide importance. The description of Wanoga Setting is hillslopes, summits, crest, interfluves, linear down slope. The parent material is volcanic ash over tuff or basalt. The NRCS rates the Wanoga Sandy Loam as land capability classification 6e for both irrigated and unirrigated land. 157C Wanoga-Fremkle-Rock Outcrop Complex 0 to 15 percent slopes: This soil complex is composed of 35 percent Wanoga soils and similar inclusions; 30 percent Fremkle soils and similar inclusions; 20 percent rock outcrop; and 15 percent contrasting inclusions. The Wanoga and Fremkle soils are well drained, with a moderately rapid permeability and an available water capacity of about two to four inches. The major use of this soil complex is livestock grazing and woodland. The agricultural capability rating for the Wanoga and Fremkle soils is 6e with irrigation and 4e without irrigation. The rock outcrop is rated at 8E, with or without irrigation. H. PUBLIC AND PRIVATE AGENCY COMMENTS: Staff mailed notice of the application and notice of the public hearing to several agencies and the following comments were received. Cody Smith P E - County Engineer Deschutes County Road Department (8/24/18 Email) (See Staff Report, packet page 76) "I have reviewed the application materials for the above -referenced file numbers, proposing a comprehensive plan and zoning text amendment and a zone change of approximately 737 acres of land from Urban Area Reserve and Surface Mining to a new "Westside Transect Zone." Deschutes County Road Department requests that approval of the zoning text amendment be subject to modification of the proposed language for Deschutes County Code Chapter 19.22 similar to the following. 19.22.070 Street Improvements Subject to applicable provisions of DCC Title 17, the following shall apply to streets within the Westside Transect Zone: A. Streets may be private, except the County may require that public roads be dedicated and improved as collector roads to meet regional transportation needs and goals. B. On -street parking is prohibited on private roads. C. Maintenance of all private roads shall be assigned to landowners or home owners associations by recorded legal instrument to assure continued ownership, maintenance and repair of private roads." 13 Peter Russell - Senior Transportation Planner Deschutes County (8/22/18 Email) (See Staff Report, packet page 77)' "I have reviewed the transmittal materials for 247-18-000612-ZC/613-PA/614-TA for Comprehensive Plan, zoning text amendments, and zones changes on approximately 737 acres on the northwest side of Bend from Urban Area Reserve (UAR-10) and Surface Mining (SM) to the proposed Westside Transect Zone (WTZ). The applicant has submitted a traffic study dated Dec. 19, 2017, as required by Deschutes County Code (DCC) at 18.116.310(C)(3)(c) and 18.116.310(E)(4). Staff notes, however, an inconsistency between the submitted traffic impact analysis (TIA) and the applicant's proposed policy language for the County's Comprehensive Plan. In the burden of proof Section IV (Text Amendments) contains in the proposed Policy 3.3.9.4 "Limit residential development to 200 single-family residential lots." The TIA on page 4 summarizes the number of residences as 164 on the north property and 122 on the south property for a total of 286 residences. Staff recognizes in a complex proposal such as this the land use assumptions can change before final submittal. Nonetheless, the TIA and the burden of proof need to be consistent. Regarding planned roadways on Page 7, TIA does not treat future roads and their construction consistently. As an example, the second line states It is expected that additional roadways outlined in the City and County Transportation System Plans will be built by the planning horizon year." The TIA then focuses on NW Skyline Ranch Road, Regency Street, and Sage Steppe Drive. Yet, the next paragraph begins "The Tumalo Creek Road Extension shown on the County Transportation maps connecting Buck Road and Putnam Drive through the North Property has no funding plan or development plans outlined." Staff notes the some observation applies to the preceding streets as well. Board Resolution 2013-020 sets a transportation system development charge (SDC) of $4,240 per p.m. peak hour trip. From an SDC standpoint, the proposed land use will not trigger SDCs, but SDCs will be applied as development occurs. County staff has determined a local trip rate of 0.81 p.m. peak hour trips per single-family dwelling unit, therefore the applicable SDC is $3,434 ($4,240 X 0.81) per residence. The SDC is due prior to issuance of certificate of occupancy, if a certificate of occupancy is not applicable, then the SDC is due within 60 days of the land use decision becoming final." Colin Stephens Planning Manager City of Bend - Community Development Department (8/31/18 Letter) (See Staff Report, packet pages 78-80) "Thank you for the opportunity to comment on the Westside Transect Zone applications (File Numbers: 247-18-000612-ZC-247-18-000613-PA, 247 -18 -000614 -TA). Based on our review, ' (Russell also emailed Heck on 7/31/18 with comments that are not quoted herein) 14 Bend staff have the following comments on the proposed text amendments to the Deschutes County Comprehensive Plan and Development Code: Applicability The evidence submitted by the applicant contains information to support exceptions to Statewide Planning Goals 3, 4 and 14. This has been used to justify the creation of a new higher -density residential Transectzoning district which is limited to a unique geographic area based on the "Reasons" exception provisions of ORS 197 and OAR 660-004-0020 through 0022. These Reasons exceptions are predicated on site-specific factors including wildfire risk and preservation of wildlife habitat that only exist west of Bend's UGB between the urbanized and urbanizable areas and forest and public lands to the west. Therefore, it is reasonable to include an applicability section to the Deschutes County Development Code to specify where the zoning district may be applied. City staff respectfully request that the County add a new section in proposed Chapter 19.22 under "Purpose" that indicates where the zoning district, may be applied. Suggested language: 19.22.020: Applicability The Westside Transect Zoning District may be applied on the west side of the Deschutes River and east of Tumolo Creek on lands designated Urban Area Reserve on the Deschutes County Comprehensive Plan map where exceptions to Statewide Planning Goals 3, 4 and 14 have been taken to allow densities below one dwelling unit per ten acres. Exception Findings Regarding the applicants' findings we have the following comments: The applicants' response to Applicable Standards and Criteria 1. OAR 660-004-0018 (4) on page 44 of Section Vll Burden of Proof Statement for Goal Exceptions indicates that the Transect Zone's one unit per 2.5 to 10 acres is consistent with the density allowed on the subject properties in the 1980 Exceptions Statement. This is not entirely accurate. The 1980 Exceptions Statement allowed densities at one unit per 2.5 acres in already developed areas, which were subsequently zoned SR 2.5, and one unit per 10 acres in areas that were not already parcelized which were zoned UAR-10. New exceptions are needed precisely because the 1980 Exceptions Statement did not allow for a "range of densities", but because it placed different densities in different locations based on lot sizes at that time. The Westside Transect application now seeks to modify the densities for lands assigned one unit per 10 acres in the 1980 Exceptions Statement to denser development than was approved under the 1980 Statement. The 1980 Exceptions were intended to preserve then -undeveloped land for future urbanization, limiting development to 10 -acre lots, the 1980 Exceptions did not intend to allow for unrestricted rural parcelization anywhere in the UAR between 10 and 2.5 acres per unit. If the County adopts the new Transect Zone, City staff recommend that this finding be amended to reflect these facts. Also, in regards to the applicants' statement on Page 45, the first complete sentence on the page states that that they "do not believe that the proposed changes in use warrant taking new exceptions. " For the reasons stated above, City staff disagree and recommend that any 15 County findings not reflect this sentiment if new exceptions are made. A full analysis of the need for new exceptions is provided in the enclosed Memorandum from the City of Bend to the Department of Land Conservation and Development dated December 1, 2017. The 1980 Exceptions Statement is also enclosed. Density and the TPR As part of the proposed Infrastructure Development Agreement to Support Urban and Rural Development in the West Bend Area (DA) between the applicants, other parties, and the City of Bend, the applicants have provided mitigation for the demonstrated impacts that the rezoning to allow 187 dwelling units in the 'Transect Area" will have on the City's transportation infrastructure. The Transportation Technical Memorandum from Lancaster Engineering dated July 31, 2018 concludes that there are three intersections within the City's jurisdiction where there is a significant effect under OAR 660-012-0060 (the Transportation Planning Rule, or TPR). Two of the identified improvements necessary to mitigate the significant effects will not be constructed. a signalized intersection at NW Mt. Washington Drive and Regency Street, and the modification of the existing single -lane roundabout at the intersection of NW ML Washington Drive and NW Skyliners Road. For both of these intersections, a proportionate share of the cost of mitigating the impacts of the rezone trips will be accepted by the City as part of the DA. These funds will be used by the City on improvements to facilities other than the significantly affected facilities. Therefore, in order to comply with the TPR, OAR 660-012- 0060(2)(e)(A), the applicants must obtain a written statement from the City that the systemwide benefits of mitigation are sufficient to balance the significant effect, even though the improvements would not result in consistency for all performance standards. The DA is expected to be considered by the City Council at a first reading on October 3, 2018. The proportionate share mitigation required by the proposed DA is based on data assuming a maximum of 187 dwelling units in the Transect Area. If the total Transect lots are limited by the County's Comprehensive Plan and Code to 187 lots, the applicants' Development Agreement with the City will serve as the "written statement" under OAR 660-012-0060(2)(e)(A). As such, City staff request that Development Code Section 19.22.060 be changed to read: 19-22-060.B Residential lots shall be limited to 100 residential lots for the North Transect and 4-00 87 residential lots for the South Transect, as depicted on Figure 1 at the end of this chapter. We also request that Policy 3.3.9.4 of the Deschutes County Comprehensive Plan be amended as follows: 3.3.9.4 Limit residential development to 200 187 single-family residential lots." 16 Staff Comment/Response to City of Bend's Comments Above (See Staff Report Packet Page 21): "As background, the subject properties were under the jurisdiction of the Bend Area General Plan until the 2016 amendment to the Bend Urban Growth Boundary. The 1980 Goal Exception mentioned above applied to the City of Bend's General Plan. The City of Bend clarified the history of the subject area as it relates to Goal 14 Urbanization. Staff concurs with the recommendations to amend the proposed Comprehensive Plan policy statements and zoning code language and asks the Hearings Officer to condition them if the proposal is recommended for approval." Maggie Riley, Oregon Parks and Recreation Department (8/17/18) (See Staff Report, packet page 90) "We just received the Notice of Application and Public Hearing for 247-18-000612-ZC, 247 -18- 000613 -PA, & 247 -18 -000614 -TA. We appreciate you including OPRD in your notification process. Various properties identified in the locations of the notice sit within a State Scenic Waterway - so all listed landowners that are within % mile of the Deschutes will need to send us a completed Notice of Intent form. The forms should be emailed to Laurel Hillmann at laureLhillmann@oregon.gov. Please pass on this information to the landowners or other parties." Laurel Hillmann Oregon Parks and Recreation Department (August 21, 2018) (See Staff Report, packet page 91)2 "There are some potential issues I've noticed as part of my initial review of the proposed WTZ application: • Goal 1, Policy 2.7.5: Encourage new development to be sensitive to scenic views and sites (page 60 of the PDF, labeled 12 -Burden of Proof Statement) • Response indicates that there are no identified Goal 5 resources. However, the northern parcel appears to be immediately adjacent to the Deschutes River State Scenic Waterway (and Tumalo State Park). • Section 2. 10, Surface Mining. That portion of the subject property zoned Surface Mining is slated to be changed to the new Westside Transect Zone" (page 61 of the PDF, labeled 13- Burder of Proof Statement). However, elsewhere on maps this section of the property is excluded. Is it included or not? If it is, that land is immediately adjacent to property owned by OPRD (Tumalo State Park) and the Scenic Waterway. 2 Comments from 8/22/18 Email not quoted herein. 17 • Page 19 -Burden of Proof Statement re: Recreational Opportunities & Scenic Views. Question: Will the proposed trails within the property "that connect to existing and proposed Parks and Recreation properties" be open to the recreating public? Re: Scenic Views ... does not address potential impact to scenic views relative to the park or the scenic waterway (maybe those aren't relevant if this is specific to existing housing developments?). • Goal 5, Open Spaces, Scenic & Historic Areas and Natural Resources (Page 27 -Burden of Proof Statement, PDF page 75): States that there are "no Goal 5 resources" on subject properties. I believe they intersect that Deschutes State Scenic Waterway. OPRD will also be providing official comments prior to the September 11th deadline but clarification on these topics (in the staff report?) will help us do that more effectively. The plans proposed address wildlife/wildlife and other resources to be protected but currently fail to address the scenic and recreational resources of the state designated Deschutes River State Scenic Waterway (and also do not mention the adjacency to Tumalo State Park, at least not that I noticed)." Kevin Sullivan Deputy State Fire Marshal (See Staff Report, packet page 92) "RE FIREAPPARATUS ACCESS & FIRE PROTECTION WATER SUPPLY REQUIREMENTS Deschutes CountyApplicant(s): With regard to your application to Deschutes County, FILE NUMBER: 247-18-000612-ZC, 247 -18 -000613 -PA, 247 -18 -000614 -TA, COMPREHENSIVE PLAN AND ZONING TEXTAMENDMENT, please be advised of the following: The 2014 Oregon Fire Code establishes minimum requirements for fire apparatus access and fire protection water supply, which applies to both commercial and residential buildings, property, and some operations. The information submitted in your application is insufficient to determine if your proposed use, project or operation meets these requirements. Please furnish proof to this office at the time of building permit which indicates how these requirements are satisfied. AS IT MAYAPPLY: Proposed Single -Family Dwellings: For legal lots of record that were created on or after July 2, 2001, additional regulation applies: Oregon Administrative Rule (OAR) 918- 480-0125 Uniform Alternate Construction Standards. This additional regulation provides a process for alternate construction methods to be used when afire code official determines there is inadequate fire apparatus access or fire protection water supply. Thank you for the opportunity to make comment. Itis the mission of the Office of State Fire Marshal to protect citizens, their property, and the environment from fire and hazardous materials by providing premier public safety services, and to ensure that facilities ore safe for 18 both occupants and emergency responders." Additional agency comments are included in the record, but not quoted above, and include Bend Metro Parks and Recreation District and Oregon Department of Fish and Wildlife. The following agencies either had no comment or did not respond to the notice: Deschutes County 911, Bend/La Pine School District, Bend City Engineering, Bend Fire Department, Bend Growth Management Department, Cascade Natural Gas Company, Central Electric Co - Op, Department of Geology and Mineral Industries, Department of Land Conservation and Development, DEQ - NW Region, Deschutes County Assessor, Deschutes County Building Safety, Deschutes County Environmental Safety, Deschutes County Forester, Deschutes County Sheriff, Deschutes County Surveyor, Deschutes National Forest, Pacific Power and Light, Deschutes County Property Address Coordinator, US Fish and Wildlife Service. Public comments referenced related to relevant approval criteria shall be addressed in the Recommendations findings below. 1. GENERAL PUBLIC COMMENTS: Written comments were received prior to the hearing from the following individuals: Kirk Schueler - Brooks Resources, Matt Slater, Byron Buck, Roxanne Bercik, Wendy Peterson, Regina and David Willingham, Kit and Liza Clark, Steven Wallaert, Pam Robbins, Michelle and Carson Chambers, and Renee Wilson. Each comment submitted is part of the application record. Comments are summarized in the following bullet points. At the public hearing, representatives from the Homeowner or Neighborhood Associations of Awbrey Butte, Awbrey Glen, Shevlin Commons and Summit West spoke in support of the proposal citing low density, conservation and wildfire mitigation efforts as the reasons for support. Central Oregon Landwatch also spoke in support and submitted a detailed letter explaining why the proposal provides protection for wildlife and the needed west side fire break. Comments/testimony in support (partial list - I Spetz x9/18/18 Emaill Central Oregon Landwatch [9/7/18 Letterl: • The WTZ will preclude urban density from being built up to the "natural boundary" of Shevlin Park and US Forest Service lands. • The proposed zone will help to reduce the risk of catastrophic damage from wildfires. • The proposed WTZ will result in greater open space and migration corridors for wildlife. • Impacts to the westside transportation infrastructure will be lessened through development of the WTZ compared to urban -scale development if the subject area is annexed into the city. 19 The proposal is consistent with the Oregon land use goals and provides for the orderly transition between urban and rural development. • Proposal creates needed buffer between urban and rural development. • Proposal will preserve views from adjacent public land corridors. Concerns/testimony in opposition (Reagan Desmond (9/18/18 Emaill loe Stevens x9/18/18 Email], Geneese Zinsli x9/12/18 Emaill Regina Willingham F9/11/18 Emaill): • How the proposal addresses Goal 14 (4) - open space and recreational needs. • Adequate enforcement of provisions to minimize wildfire risk and protection of wildlife habitat. • Confusion on traffic study: the Traffic Impact Analysis states there is a need to upgrade the intersection of NW Skyline Ranch Road and Shevlin Park Road, but the burden of proof claims there are no significant traffic impacts from the proposal. The decision should include a requirement for mitigation of traffic impacts per the recommendation of the study. • The request seems unwarranted because the purpose of current zoning district is to hold the land as long as possible as open space until needed for orderly growth. • Insufficient open space to adequately protect wildlife habitat and prevent wildfire. • The proposal would result in inefficient extension of public services. • The proposal has does not adequately identify or explain how potential development will not interfere with existing development, development potential or value of neighboring land. • There are no specific plans or designs for future subdivisions. • The proposal should comply with Site Plan Review in order to identify how proposed development will impact neighboring properties and land values. • The fencing standards are inadequate to protect wildlife. Members of the public testified at the public hearing, some in support and others expressing concerns or issues. Several of the public's comments appeared directed towards future development of the property and not necessarily directed towards the approval criteria for these applications. Staff received two additional comments via email submitted after the September 18, 2018 5:00 p.m. deadline by Gladys Biglor and Geneese Zinsli. In addition, Gladys Biglor submitted comments to staff via email on September 25, 2018. Public comments related to applicable approval criteria are addressed in the findings below. 20 J. NOTICE REQUIREMENT: Applicants complied with the posted notice requirements of DCC 22.23.030(B). Applicants submitted a Land Use Action Sign Affidavit, dated August 14, 2018, indicating that Applicants posted notice of the land use action on the property on that same date. On August 7, 2018, the Planning Division mailed a Notice of Application and Public Hearing to all property owners within 250 feet of the affected tax lots. After the mailing was sent, Staff noticed that one affected tax lot was accidently omitted, tax lot 600 of Assessor's Map 17-11-23, and the notice did not specify a portion of the "North Property" is currently zoned Surface Mine. Subsequently, on August 21, 2018, the Planning Division mailed a Revised Notice of Application and Public Hearing, which contained the previously excluded information. A Notice of Public Hearing was published in the Bend Bulletin on Sunday, August 19, 2018. The initial notice of the first evidentiary hearing was submitted to LCDC on August 1, 2018. K. REVIEW PERIOD: Applicants initially submitted a Plan Amendment, Text Amendment, and Zone Change application to establish the WTZ on December 28, 2017 (reference file nos. 247- 17-001013-ZC, 1014 -PA, and 1015 -TA). The original submittal was deemed incomplete and went through several revisions. Applicants ultimately withdrew the original submittal to more easily manage the record and submitted a revised application on August 1, 2018, which was deemed complete on the same day. According to DCC 22.20.040(D), the review of the proposed quasi-judicial Plan Amendment and Zone Change application is not subject to the 150 -day review period. L. LAND USE HISTORY: The Subject Property has been slated for eventual urbanization since 1972. The City of Bend and Deschutes County adopted the original UGB in 1972. In 1979, the City submitted the Bend Area General Plan and UGB to LCDC, which directed the preparation of a new boundary that would separate urban lands from future urbanizable lands. Goal exceptions from Goals 3 and 4 were also taken at that time to establish the Subject Property as urban reserve in the Bend Area General Plan with a plan toward eventual inclusion in the City of Bend UGB. Subsequently, the Subject Property were designated Urban Area Reserve. The 2016 Bend UGB amendment, Ordinance 2016-022, amended Deschutes County's Comprehensive Plan to formally recognize the Bend Urban Area Reserve. Excerpt of Ordinance 2016-022 "Bend Urban Area Reserve: To define lands outside of Bend's Urban Growth Boundary that were under the jurisdiction of the Bend Area General Plan. These areas were removed in September 2016 through the 2016 amendment to the Bend Urban Growth Boundary. These areas are now under the jurisdiction of the County's Comprehensive Plan." North Property - The establishment of the North Property as a surface mine in the 1960s occurred prior to the adoption of zoning regulations in Deschutes County. As previously mentioned the mine is currently operating under an Oregon Department of Geology and 21 Mineral Industries ("DOGAMI") permit no. 09-0018 and is not recognized on Deschutes County's Goal 5 inventory for surface mining sites. At the public hearing, Applicants clarified that the land covered by the DOGAMI permit and currently operated as a surface mine is adjacent to the north of the area proposed for the Transect North, but is not included in the Transect Area. Other land use permits issued on the North Property include a site plan, SP - 97 -81, for four truck storage sheds; a Special Operating Permit (SOP -99-1) for nighttime asphalt production; a Lot Line Adjustment (LL -05-24); and a Conditional Use permit, CU -00- 61, for fill and removal in the bed and banks of Tumalo Creek. In 2016, the County Planning Division approved an Administrative Determination, 247 -16 -000503 -AD, that affirmed that Shevlin Sand and Gravel may relocate uses, buildings, and operating areas from one region of the North Property to another that are within the DOGAMI permit area without seeking Deschutes county land use approval. The School District property is vacant and has no permitting history. South Property - The South Property is undeveloped and without a substantial permitting history. The South Property received a legal lot of record determination in connection with LR -05-14. The northern portion of the South Property (most of which is now included within the UGB) was previously utilized (beginning in the 1960s and 1970s) for the manufacturing and distribution of motorcycle parts. This portion of the property included a motorcycle test tract. The County authorized the expansion of this non -conforming use of the property in 1977 (County file NCU-77-8). That portion of the South Property was later used for administrative offices for the Hooker Creek companies. The buildings utilized for such uses have now been incorporated within the UGB. A 34 -lot planned unit development and tentative subdivision plan was approved by the Board of County Commissioners on the South Property in 2005 (County file A-05-9, CU -05-17, TP -05-958). This tentatively approved development was never platted or developed. IV. FINDINGS AND CONCLUSIONS A. PROCEDURAL ISSUE: The proposed Westside Transect Zone is being processed in the wrong venue. Finding: Testimony from Regina Willingham (9/11/18 Email) states she believes the proposed WTZ is being processed in the wrong venue citing sections of the County procedural ordinance, Title 22. Ms. Willingham believes the process should go through the County Planning Commission citing the definitions of "Quasi-judicial" and "Legislative changes" and DCC 22.12.010. The Hearings Officer finds that the procedures ordinance, DCC 22, provides options to process the proposed WTZ comprehensive plan and zoning text amendment and zone change as quasi-judicial or legislative. The Hearings Officer, in this case and process, is making recommendations to the Commission. There will be a separate de novo hearing in front of the Commission, where the public can again weigh in on the proposal. The Hearings Officer is charged with reviewing the legal issues 22 involved in Applicants' proposal. Policies involved with the Westside Transect Zone will be determined by the Board. The Hearings Officer finds that the quasi-judicial process also allows for greater notice of nearby property owners notified of public hearing. The Hearings Officer finds the quasi-judicial process is authorized by the DCC and finds no prejudice to affected property owners from use of this process. B. TITLE 19 - THE BEND URBAN GROWTH BOUNDARY ZONING ORDINANCE 1. Chapter 19.116. Amendments, Appeals and Procedures a. Section 19.116.010. Amendments DCC Title 19 may be amended by changing the boundaries of zones or by changing any other provisions thereof subject to the provisions of DCC 19.116. A. Text changes and legislative map changes may be proposed by the Board of County Commissioners on its own motion, by the motion of the Planning Commission, upon payment of a fee, by the application of a member of the public. Such changes shall be made pursuant to DCC 22.12 and ORS 215.110 and 215.060. Findings: Applicants, also the property owners, requested a quasi-judicial plan amendment, text amendment and zone change. Applicants filed the required Planning Division's land use application forms for the proposals. The applications will be reviewed under the applicable procedures contained in DCC 22. B. Any proposed quasi-judicial map amendment or change shall be handled in accordance with the applicable provisions of DCC Title 22. Findings: Applicants are seeking a quasi-judicial zoning map amendment under the applicable provisions of DCC 22. b. Section 19.116.020. Standards for Zone Change The burden of proof is upon the applicant. The applicant shall in all cases establish: A. That the change conforms with the Comprehensive Plan. Specifically, the change is consistent with the plan's intent to promote an orderly pattern and sequence of growth. Findings: The Hearings Officer agrees with Staff's proposed findings (Staff Report - packet page 27) that the provisions of DCCP, as set forth below, are relevant to Applicants' proposal and should be considered in reviewing the proposal to change the zoning from UAR-10 to the proposed WTZ. 23 Applicants addressed several DCCP goals and policies in their application materials. Chapter 1- Comprehensive Planning Section 1.3 - Land Use Planning Findings: The DCCP provides map designations that create the framework for zoning districts. Per the DCCP, zoning defines in detail what uses are allowed for each area. The DCCP map designation for the Bend Urban Area Reserve is described below. The 2016 Bend UGB amendment, Ordinance 2016-022, amended DCCP to formally recognize the Bend Urban Area Reserve. Bend Urban Area Reserve: To define lands outside of Bend's Urban Growth Boundary that were under the jurisdiction of the Bend Area General Plan. These areas were removed in September 2016 through the 2016 amendment to the Bend Urban Growth Boundary. These areas are now under the jurisdiction of the County's Comprehensive Plan. Applicants are not proposing to change the Bend Urban Area Reserve boundaries or its plan map designation. Applicants are proposing, however, to add the WTZ to the zoning code associated with the DCCP designation of Urban Area Reserve and change the zoning to the new WTZ. The Subject Property has been slated for eventual urbanization since the early 1970s. The City of Bend and Deschutes County adopted the original Bend UGB in 1972. In 1979, the City submitted the Bend Area General Plan and UGB to LCDC, which directed the preparation of a new boundary that would separate urban lands from future urbanizable lands. Based on that direction, the Subject Property was designated Urban Area Reserve with its stated purpose, at the time, to act as a buffer between the urban area and the rural resource lands outside the reserve area, in addition to function as a holding areas for future urbanization. The zoning districts under DCC 19, within the acknowledged Urban Area Reserve, include SM, UAR- 10, SR 2.5, RS, Industrial Light (IL) and Flood Plain (FP). The Bend City Council adopted ordinances in 2016 to expand the UGB by 2,380 acres. The application materials indicate the UGB expansion included approximately 68 acres of the southern portion of the North Property and approximately 69 acres of the South Property. In order to effectuate the expansion, the County amended DCC 19 and DCC 23, which was adopted on September 28, 2016 (reference ordinance no. 2016-020 and Exhibit 6 in application materials). LCDC approved the Bend UGB expansion on November 14, 2016. The application materials state the following (Applicants' Burden of Proof Statement - page 10): "The city's adoption of the UGB declined to include the subject properties for urbanization based on costs to serve, resource values, and wildfire risk. While the city found value in these 24 properties, it determined through an extensive process to weigh and balance the attributes of the properties with those of other properties vying for inclusion into the UGB and ultimately found other properties more suitable for urbanization." The proposed zone change to the new WTZ will allow the property to be developed at a higher density, one unit per 2.5 acres, rather than the existing UAR-10 density of one unit per 10 acres, but significantly lower than if it were eventually urbanized as contemplated by the existing zoning. Residential development opportunities of one unit per 2.5 acres will also apply to the areas included in the WTZ area that are currently zoned SM. Applicants contend the allowance for a different density under the WTZ is to account for the area's unique and varied terrain, wildlife and natural resources, and connections to parks and recreational opportunities. The Hearings Officer finds that the new zoning designation will act as a transitional buffer between the urban development and rural lands, which compliments the Urban Reserve Area's purpose. Chapter 2 - Resource Management Section 2.6 - Wildlife Goal 1 Maintain and enhance a diversity of wildlife and habitats. Policy 2.6.2 Promote stewardship of wildlife habitats and corridors, particularly those with significant biological, ecological, aesthetic and recreational value. Policy 2.6.4 Support incentives for restoring and/or preserving significant wildlife habitat by traditional means such as zoning or innovative means, including land swaps, conservation easements, transfer of development rights, tax incentives or purchase by public or non-profit agencies. Policy 2.6.7 Use a combination of incentives, regulations and education to promote stewardship of wildlife habitat and address the impacts of development. Findings: The Hearings Officer finds that although the Subject Property is not designated in the County's Goal 5 inventory for wildlife habitat and, therefore is outside of the Deschutes County's Wildlife Area Combining Zone, the Subject Property is within the Oregon Department of Fish and Wildlife's defined mule deer and elk winter range. Applicants stated they are working with a professional biologist to voluntarily incorporate design elements and conservation measures into a plan to protect deer and elk populations on the Subject Property. These conservation measures are found in the "Wildlife Habitat and Forest Health Management Plans", Exhibit 12 of the application materials. The application materials indicate the following standards have been included in the proposed zoning ordinance and/or will be incorporated as part of development agreements between the current property owners and future developers of the area. Standards for individual residential lots to include a "Vegetation Management Plan". Dedication of open space and designation of resource management corridors. 25 • Specific residential lot siting standards that protect wildlife movement and patterns. • Fencing standards adopted from the County's Wildlife Area Combining Zone. • Post -development measures to protect and enhance the wildlife habitat in the study area. • Provisions in the Covenants, Codes and Restrictions ("CC&Rs") that provide authority for Home Owner Associations ("HOAs") to assess fines to bring property owners into compliance with the rules. Additionally, Applicants represented that the proposed WTZ concept allows for a low-density development pattern to respect and protect the natural resources of the Subject Property. The policies of the WTZ relevant to wildlife protections are listed below and are proposed to amend Section 3.3, Rural Housing Policies of the Comprehensive Plan. 3.3.9.1: Protect the sensitive eco -systems and interrelationships of the urban/rural interface on the west side of Bend between the urban area and Shevlin Park and the public and forestlands to the west. 3.3.9.2: Protect natural resources and environmentally sensitive areas and provide special setbacks between development and Shevlin Park, Tumalo Creek, and forestlands. 3.3.9.3: Development patterns shall reflect the protection of land with environmental significance and fire -wise community design best practices. 3.3.9.5: Manage all areas outside of the structural building envelopes on residential lots for wildfire mitigation and wildlife habitat in accordance with coordinated plans prepared by professionals, reviewed annually with reports submitted to the County every three years. The wildfire mitigation and wildlife habitat plans shall be funded through homeowner assessments and administered and enforced by a homeowners association established at the time of creation of any residential lots. 3.3.9.6: Reduce the impact of construction by using best management practices to minimize site disturbance during construction and construction impacts (i.e., erosion) on Shevlin Park, Tumalo Creek, and forestlands. Comments from the Oregon Department of Fish and Wildlife ("ODFW") dated September 10, 2018 express concern about the pace of residential development in and around Bend resulting in rapidly modifying and fragmenting native habitat for many species. ODFW recognizes the proposed increase in density standards from one unit per 10 acres to one per 2.5 acres will be mitigated by requiring the subdivisions to be designed in accordance with Wildlife Habitat Management Plans with accompanying deed restrictions or restrictive covenants. ODFW acknowledged that further ODFW review will be necessary during the master plan process to determine the potential impacts 26 to wildlife resources and adherence to Section 19.22.060. ODFW recommended that the Community Development Department "proactively track adherence to the requirements under DCC 19.22.060 to ensure homeowner associations are following their respective plans with adequate monitoring and enforcement and timely reporting." Oregon Parks and Recreation Department ("OPRY) submitted comments , dated August 21, 2018, that Applicants' burden of proof indicated there are no identified Goal 5 resources and failed to address the scenic and recreational resources of the designated Deschutes River State Scenic Waterway and speculated that changing the amount and type of development could change the character of that stretch of the water way and the classification category "recreation river area" which she again speculates would have likely been different during the management planning and rule development processes for that section of the Deschutes River. Applicants' responded (9/25/18 Letter) to the OPRD comments, in part (footnotes included), as follows: "The County's Comprehensive Plan (2011) Chapter 2, Resource Management Section 2.5 Water Resources identifies that area of the Upper Deschutes River from Robert Sawyer Park to Tumalo State Park as being within the Oregon Scenic Waterway. This section of the river runs along a portion of the north part of the North Property (along tax lot 100). While the State Scenic Waterway is a Goal 5 resource within the Comprehensive Plan, Deschutes County did not specifically identify and inventory any resources, including the river sections within the Title 19, Bend Urban Reserve Area and did not apply a protected overlay such as the Landscape Management Zone found in Title 18.3 The Comprehensive Plan states that "Landowners wishing to pursue a new activity within a quarter mile of a Scenic Waterway may need to notify the Park and Recreation Commission" of their activities. For those land use activities that fall within the County's Deschutes River corridor as defined in Title 19,4 Chapter 22.22, Deschutes River Corridor Design Review Procedures applies and sets forth design review procedures. In addition to the County's procedures, a landowner would need to contact the Oregon Parks and Recreation Department for activities within a % mile of the Scenic Waterway along the Deschutes River. The present request would not change the regulatory framework or requirements of the Deschutes River Corridor or State Scenic Waterway program. As discussed at the public hearing, that portion of the subject property along the north rim of tax lot 100 that is within the State Scenic Waterway is steep and unlikely to be developed in the future. 3 The Landscape Management zone is an overlay zone in Title 18, Chapter 18.84. The zone applies to those designated areas within Deschutes County, but do not include those lands within the boundaries of the Urban Reserve Area. 4 Chapter 19.04 of the Deschutes County Code, defines "Deschutes River corridor" to mean "all property within 100 feet of the ordinary high water mark of the Deschutes River. The ordinary high water mark shall be as defined in DCC 19.04.040." O►i Nevertheless, the applicant agrees to obtain any necessary State and County approvals in the future for land use activities which occur within the State Scenic Waterway or the Deschutes River corridor. C. River Recreation Category The section of the Middle Deschutes bordering the subject property is classified as "Recreation River Area" which OAR 736-040-0072(4) describes the "Recreational River Area" as follows5: (4) Recreational River Area: (a) From the northern Urban Growth Boundary of the City of Bend at approximately river mile 161 downstream to Tumolo State Park at approximately river mile 158, the river is classified Recreational River Area; Shown on Exhibit 29 submitted on September 18, 2016 is a portion of the Recreational River Area extending from the UGB to the applicant's surface mining property. This section of the river contains land zoned and developed to the SR 2 %2 density range, including a residential subdivision called "Awbrey Meadows" abutting the subject property. Further, the uses allowed on either side of the Deschutes River within the Comprehensive Plan Urban Area Reserve boundaries include those permitted in the SR 2 %2, UAR-10, and Surface Mine (SM) and include for example: surface mining, churches, schools, landfills, fire stations, kennels, planned unit development, destination resorts, among others. The WTZ zone proposes a subset of these uses, not more intensive uses, and therefore should have no impact on the river classification. The applicant is sensitive to the scenic values for that portion of the property along the Deschutes River. The topography along the rim of the property to the river is steep and future development will be planned in accordance with the Wildlife Plan submitted as Exhibit 12 to the application and in compliance with all applicable County and Oregon Scenic Waterway rules." In addition, Staff acknowledged several comments submitted by the public stating concerns about insufficient open space and inadequate fencing standards that would come at the detriment to wildlife. Staff concluded, and the Hearings Officer agrees, the proposed policies above, in addition to the Wildlife Habitat and Forest Health Management Plans' findings and suggestions, will adequately promote stewardship of wildlife habitats. Because the proposed zoning ordinance requires a Wildlife Habitat and Forest Health Management Plan with defined resource management corridors and open space for each new land division, the Hearings Officer agrees with Staff and 5 According to the County's Comprehensive Plan, Chapter 2 Resource Management Section, in the 1970s Oregon voters passed an initiative that created the Scenic Waterways Act, which initiated the Scenic Waterways program. OAR 736-040-0072 was later adopted in 1993. The effective date of OAR 736-040-0072 in 1993 comes well after the existing zoning of the subject lands which were always slated for eventual urbanization since the 1960s. 28 finds the Applicants' proposal incentivizes protection of wildlife habitat that is not explicitly recognized in the DCC. The Hearings Officer finds that the proposed WTZ better protects wildlife habitat and encourages stewardship of the land than the existing UAR-10 and SM zoning because there are no regulations or standards to protect habitat areas in these existing zoning districts. Lastly, if followed, Staff concluded, and the Hearings Officer agrees, the suggestion of the Wildlife Habitat Plan to incorporate compliance requirements within a future subdivision's CC&Rs will effectively incentivize promotion and stewardship of wildlife habitat vis -6 -vis impacts of development. The Hearings Officer finds the proposed WTZ meets these policies and goals to maintain and will effectively enhance a diversity of wildlife and habitats. The Hearings Officer finds the proposal promotes the stewardship of wildlife habitats and corridors through innovative zoning using a combination of incentives and regulations and educational means, including the submission of a master plan that includes a Wildlife Habitat Management Plan in conjunction with a Wildfire Mitigation Plan, a Stewardship Community Plan, deed restrictions or restrictive covenants and homeowners' association(s) assuring both funding and enforcement. Policy2.6.8 Balance protection of wildlife with wildland fire mitigation on private lands in the designated Wildland Urban Interface. Findings: Applicants state there is no evidence that any properties were formally designated Wildland Urban Interface ("WUI"). Nonetheless, Applicants indicated that they are working with wildlife and wildfire professionals to develop a detailed plan to reduce the threat of wildfire while maintaining quality wildlife habitats within the subject properties (see Exhibit 12 of application materials). Applicants' Wildlife Habitat and Forest Health Management Plans will address vegetation management techniques, structural and building design as well as materials selection, and operational issues and standards, such as evacuation routes and communication plans for residents. This standard is provided in the proposed WUI policy, 3.3.9.5, listed above. The Hearings Officer finds the Wildlife Habitat and Forest Health Management Plans adequately address Policy 2.6.8 because of the prescriptive suggestions provided in the plans and the fact the zoning ordinance requires any land divisions to submit a master plan and tentative plan design in accordance with said plans. Goal 2: Promote the economic and recreational benefits of wildlife and habitat. Policy 2.6.10 Coordinate with stakeholders to ensure access to significant wildlife and riparian habitat through public or non-profit ownership. Findings: As mentioned previously, Applicants' proposed to protect wildlife habitats through the establishment of Wildlife Habitat Plans, as provided in Exhibit 12 of application materials, and will be further refined with development proposals as required for all future land divisions. Applicants' proposed to provide access to wildlife and riparian habitat along Shevlin Park, Tumalo Creek, and 29 the Deschutes River through an on-site trail system. In addition, the Applicants proposed to have legal agreements with future developers to ensure adequate management of areas to protect wildlife movement and corridors. Comments submitted by the Bend Parks and Recreation District ("Bend Parks"), dated September 11, 2018, acknowledged Applicants' efforts and willingness to collaborate with Bend Parks over the past several years to meet the community's needs for parks and trails in the WTZ. Applicants expressed a desire to remain flexible in the exact design and location of parks and trails during this application process. Applicants and Bend Parks have been able to draft maps that show the approximate locations of parks and trails in the WTZ. Bend Parks requested the Hearings Officer add a condition of approval requiring a letter from Applicants affirming Applicants' intention to provide public parks and trails within close proximity to those shown on map attachments C and D of the District's testimony. In addition, the District requested: * Annexation of the North Property into the Bend Park and Recreation District * Add Language: The District has requested the applicant to add language to Section 19.22.060, Land Division by adding "trails" to (A)(1) and "including trails" to (A)(2). * Clarification of the definitions of "parks and recreation facilities" and "intensive uses." Applicants, in their September 25, 2018 rebuttal letter, agreed to continue coordinating development plans with Bend Parks to further refine the parks and trail locations in future development applications and plan to locate them within close proximity to those maps in Attachment C and D of its September 11, 2018 testimony to Deschutes County. In addition, Applicants agreed to annex those portions of the North Property that are located outside the boundaries of the Bend Parks' boundaries. Applicants also added the requested language of the District of adding "trails" to Section 19.22.060(A)(1) and (A)(2) and have removed reference to intensive recreational uses (see Applicants' Exhibit 33). The Hearings Officer addressed Bend Parks' request regarding the 100 -foot setback from Shevlin Park under the appropriate section of the Recommendations. Staff recommended the Hearings Officer make specific findings on whether Applicants adequately coordinated with stakeholders to ensure access to significant wildlife and riparian habitat. The Hearings Officer finds this policy requires the County to coordinate with stakeholders to ensure access to significant wildlife and riparian habitat through public or non-profit ownership. In this case, Applicants voluntarily reached out to Bend Parks to coordinate access through the property along Shevlin Park and Tumalo Creek. In the event that the Commission disagrees with the Hearings Officer's finding that this policy is directed to the County to coordinate with stakeholders the Hearings Officer alternatively finds that Applicants have adequately coordinated with stakeholders. For example, Applicants have coordinated with ODF&W and Bend Parks and neighboring properties by seeking input related to wildlife corridors through the Subject Property. 30 Additionally, the proposed WTZ code, requires a master plan that includes a wildlife habitat management plan that will identify resource management corridors within the Subject Property. Applicants have indicated a willingness to continue efforts to collaborate with the Bend Parks. The Hearings Officer finds, if required by this policy, that Applicants have engaged in adequate coordination with stakeholders to ensure access to wildlife and riparian habitat has occurred and that there is additional opportunity for coordination will occur when development applications are made through the master planning process required by the WTZ. Section 2.7 - Open Spaces, Scenic Views and Sites Goal 1 Coordinate with property owners to ensure protection of significant open spaces and scenic views and sites. Policy 2.7.2 Cooperate with stakeholders to establish a comprehensive system of connected open spaces. Policy 2.7.4 Encourage a variety of approaches that protect significant open spaces and scenic view and sites. Policy 2.7.5 Encourage new development to be sensitive to scenic views and sites. Findings: The application materials state the Subject Property has no identified Goal 5 significant natural resources. However, portions of tax lot 100, Assessor's Map 17-11-13, and tax lot 100, Assessor's Map 17-12-18, are near the Deschutes River and are part of the Oregon Scenic Waterway. Oregon Scenic Waterways located in Deschutes County are recognized in the Comprehensive Plan (Table 2.5.2) as Goal 5 resources. OPRD provided comments regarding this situation. Staff also noted that several subject properties are adjacent to Tumalo Creek, which, in lands governed by Title 18 (western half of the creek), is a Goal 5 resource under the Landscape Management Combining Zone. However, the Hearings Officer finds that the Subject Property, which borders the eastern half of Tumalo Creek, are governed by DCC 19 and the Landscape Management Combining Zone does not apply. Staff commented that although no specific uses are proposed at this time, all future development in the WTZ will be required to coordinate with OPRD to comply with the Land Management rules as described in OAR 736, Division 40: Oregon Scenic Waterways. As discussed at the public hearing, Applicants explained that portion of the Subject Property along the north rim of tax lot 100 that is within the State Scenic Waterway is steep and unlikely to be developed in the future. Nevertheless, Applicants agreed to obtain any necessary State and County approvals in the future for land use activities which occur within the State Scenic Waterway or the Deschutes River corridor. Staff found, and the Hearings Officer agrees, that compliance with the Oregon Scenic Waterways program will encourage development to be sensitive to scenic views and sites (Policy 2.7.5). 31 Applicants proposed to provide wildlife resource corridors, trails and paths that connect with existing and proposed parks and recreational opportunities, such as Shevlin Park to the west and Riley Ranch Natural Reserve to the northeast. Wildlife and wildfire management plans are a key component of all land divisions in the WTZ. To ensure compliance with said plans, the proposed WTZ ordinance requires all future developments to be governed by CC&R's that are specifically designed to protect resource values, such as open space and scenic views, while minimizing the threat and spread of wildfire. And, as noted above, any development within an Oregon Scenic Waterway will be required to comply with the State requirements. OPRD asked, at the public hearing, if the proposed trials will be open to the recreating public. Staff asked the Hearings Officer, in the Staff Report, to make specific findings on whether recreation trails are required to be open to the public to comply with DCC policies and to determine if the Applicants' proposal has adequate built-in standards that will ensure all future developments within the WTZ will protect significant open spaces while establishing a comprehensive system of connected open spaces. The Hearings Officer finds these policies, of the DCC, address open spaces, scenic views and sites. The Hearings Officer finds these policies require the County to coordinate with property owners to ensure protection of significant open spaces and scenic views and sites. The Hearings Officer finds that this policy does not require an owner to provide public trails, for example, unless the trail is associated with the protection of identified significant open space, scenic views or sites. An example of not creating a public trail to a significant resource would be to Goal 5 protected sites, such as bald eagle nests. Goal 1 of Section 2.7 Open Spaces, Scenic Views and Sites Policies of the DCC requires the County to coordinate with property owners to ensure protection of "significant" open spaces and scenic views and sites. The Hearings Officer finds that the term "significant," while not defined in this context, likely includes Goal 5 open spaces, scenic views and sites inventories, ESEEs and programs (see Policy 2.7.1). In addition, Section 2.7 of the DCC describes open spaces as: "Open spaces are generally undeveloped areas that are beim maintained for some other purpose such as farms parks forests or wildlife habitat. Besides the value that stems from the primary use of the land, open spaces provide aesthetically pleasing undeveloped landscapes. Because these areas are undeveloped they also provide additional benefits such as water recharge and safety zones from natural hazards like flooding." The Subject Property is not an undeveloped area that is being maintained for some other purpose, such as farms, parks, forests or wildlife habitat or considered "aesthetically pleasing undeveloped landscapes." The North Property's primary use is surface mining and the South Property, while currently vacant, has been used in the past for manufacturing and distribution of motorcycle parts, administrative offices of a surface mining company, and approval for a 34 -lot planned unit development that was never built. 32 As stated in the Staff Report (packet page 31) a small portion of the North Property along Deschutes River falls within the Oregon Scenic Waterway. According to the Staff Report "Oregon Scenic Waterways located in Deschutes County are recognized in the Comprehensive Plan (Table 2.5.2) as Goal 5 resources. In addition, the Staff Report states: 'Although no specific uses are proposed at this time, all future development in the WTZ will be required to coordinate with OPRD to comply with the Land Management rules as described in OAR 736, Division 40: Oregon Scenic Waterways. Staff finds that compliance with the Oregon Scenic Waterways program will encourage development to be sensitive to scenic views and sites (Policy 2.7.5). Moreover, the applicants are proposing to provide wildlife resource corridors, trails and paths that connect with existing and proposed parks and recreational opportunities, such as Shevlin Park to the west and Riley Ranch Park to the northeast. Note: staff from OPRD asked if the proposed trials will be open to the recreating public. Are recreation trails required to be open to the public to comply with Comprehensive Plan policies? Staff asks the Hearings Officer to make specific findings on this issue raised by OPRD. As previously mentioned, wildlife and wildfire management plans will be required and are a key component of all land divisions in the WTZ. To ensure compliance with said plans, the proposed WTZ ordinance requires all future developments to be governed by CC&R's that are specifically designed to protect resource values, such as open space and scenic views, while minimizing the threat and spread of wildfire. And, as noted above, any development within an Oregon Scenic Waterway will be required to comply with the State requirements. Because several comments from the public have raised questions about open space provisions in the application materials, staff asks the Hearings Officer to determine if the applicants' proposal has adequate built-in standards that will ensure all future developments within the WTZ will protect significant open spaces while establishing a comprehensive system of connected open spaces. The Hearings Officer finds that this section of the DCC does not require the County to provide public recreational trails through the property in order to comply with these DCCP policies. The Hearings Officer finds that Applicants' proposal has adequate built-in standards that will ensure future developments within the WTZ will protect significant open spaces while establishing a comprehensive system of connected open spaces. The Hearings Officer finds that such standards include the proposed WTZ rules, the requirements to comply with the Oregon State Scenic Waterway and the County's Deschutes River Corridor rules, the rigorous review following submission of future development, and continued coordination with the Bend Parks, which provide more than sufficient standards to show compliance with these policies; substantially more protection than that of the existing code. Further, as noted in Applicants' Burden of Proof Statement and mentioned by the Bend Parks, topography plays a big part in siting future developments on the 33 properties. The South Property, for example, as testified by Mr. Conway, will likely have a "Conservation Area" and a "No Build Area" that sets back development at least 400 feet from its western boundary, the closest boundary to Shevlin Park (see Attachment D to the District's September 11, 2018 testimony). In addition, Applicants testified they will continue to include the Bend Parks in discussions as they move forward with future development plans. The Hearings Officer finds Applicants have met the DCC policies set forth in DCC Section 2.7 - Open Spaces, Scenic Views and Sites. Section 2.10 - Surface Mining Policies Goal 1 - Protect and utilize mineral and aggregate resources while minimizing adverse impacts of extraction, processing and transporting the resource. Policy 2.10.3 Balance protection of mineral and aggregate resources with conflicting resources and uses. Findings: A portion of the northern section of the North Property is currently zoned SM. Staff noted the underlying DCC designation is Urban Area Reserve, not Surface Mining. The Subject Property is not identified as a Goal 5 resource and not listed on the County's inventory of surface mining sites. Thus, the Hearings Officer finds that review or protection under Goal 5 is not applicable. Moreover, Applicants approximate there is five to seven years' worth of resources left within the Coats' surface mine. Applicants contend there are no Section 2.10 Surface Mining policies that are relevant to the proposal. The Hearings Officer agrees. As noted earlier, the Subject Property was under thejurisdiction of the Bend Area General Plan until the 2016 amendment to the Bend Urban Growth Boundary. LCDC never required the City of Bend, during periodic review, to inventory the SM zoned properties consistent with Statewide Goal 5. Every inventoried surface mine in Deschutes County contains a Surface Mining Impact Area Combining Zone ("SMIA"). The purpose is to: "Protect surface mining resources of Deschutes County from new development which conflicts with the removal and processing of a mineral and aggregate resource while allowing owners of property near a surface mining site reasonable use of their property." (DCC 18.56.010) The SM zoned properties are not recognized by the County as a surface mining resource and are not within a SMIA. Therefore, the Hearings Officer finds Policy 2.10.3 is not applicable. Chapter 3 - Rural Growth Management Section 3.3 - Rural Housing Policies Goal 1 - Maintain the rural character and safety of housing in unincorporated Deschutes County. Policy 3.3.1 The minimum parcel size for new rural residential parcels shall be 10 acres. 34 Findings: Applicants argued that the Subject Property, with DCC and zoning designations of Urban Reserve, is not rural land as that term is used in the County comprehensive plan and defined in the Statewide Planning Goals. However, because the proposed WTZ, the zone which Applicants propose to apply to the Subject Property, is a rural zoning designation the Hearings Officer believes the above policy is applicable and addresses it herein. Applicants proposed to modify Policy 3.3.1 to add the underlining language "Except for parcels in the Westside Transect Zone, the minimum parcel size for new rural residential parcels shall be 10 acres." The Subject Property is currently zoned UAR-10 and SM. The minimum lot size for the UAR-10 Zone is 10 acres. The minimum lot size of the SM Zone is, "as determined by the Planning Director to be necessary for the protection of public health, safety and welfare." The WTZ is proposed to have a 2.5 -acre minimum lot size with the stated purpose of the WTZ (19.22.010) of providing a transitional residential development pattern with densities ranging from one unit per 2.5 to 10 acres. The WTZ allows for no more than 187 residential units to ensure the rural character of the area will be maintained. Applicants supplied proposed findings for a Goal 14 exception for the Subject Property to address Policy 3.3.1. and Staff concluded that a Goal 14 exception is required to establish a 2.5 minimum lot size. As discussed below, the Hearings Officer adopts Applicants' recommended findings for a Goal 14 exception. Policy 3.3.4 Encourage new subdivisions to incorporate alternative development patterns, such as cluster development, that mitigate community and environmental impacts. Findings: Applicants proposed a new zone, the WTZ, which provides for rural development that is required to protect wildlife habitat and incorporate fire management plans into subdivision designs. The proposed zoning ordinance requires all land divisions to have a wildlife habitat management and wildfire mitigation plan. These documents are required to be part of an application for a land division and must be accompanied with a document establishing a homeowners' association that will enforce said plans. Staff recommended, and the Hearings Officer agreed, that new subdivisions within the proposed WTZ will adequately mitigate environmental impacts. Community impacts are addressed in the previous and forthcoming review of comprehensive plan policies and State Planning Goals. Moreover, Applicants proposed to add eight new policies to Section 3.3, as set forth below: "Policy 3.3.8. The transect concept provides a range of development patterns from most to least developed. The Westside Transect Zone implements the transect concept by providing a rural, low density range at the western edge of the Bend UGB adjacent to the urban transect typology inside the Bend UGB and extending outward westerly to the public and forested lands. The Westside 35 Transect Policies set forth below and the zoning ordinance provisions implementing those policies are specific to the area located between the Bend UGB and Shevlin Park and do not apply to other areas adjacent to the Bend UGB. Policy 3.3.9. Westside Transect Policies: 3.3.9.1: Protect the sensitive eco -systems and interrelationships of the urban/rural interface on the west side of Bend between the urban area and Shevlin Park and the public and forestlands to the west. 3.3.9.2: Protect natural resources and environmentally sensitive areas and provide special setbacks between development and Shevlin Park, Tumalo Creek, and forestlands. 3.3.9.3: Development patterns shall reflect the protection of land with environmental significance and fire -wise community design best practices. 3.3.9.4: Limit residential development to 200 single-family residential l0ts.6 3.3.9.5: Manage all areas outside of the structural building envelopes on residential lots for wildfire mitigation and wildlife habitat in accordance with coordinated plans prepared by professionals, reviewed annually with reports submitted to the County every three years. The wildfire mitigation and wildlife habitat plans shall be funded through homeowner assessments and administered and enforced by a homeowners association established at the time of creation of any residential lots. 3.3.9.6: Reduce the impact of construction by using best management practices to minimize site disturbance during construction and construction impacts (i.e., erosion) on Shevlin Park, Tumalo Creek, and forestlands. 3.3.9.7: Coordinate with the City of Bend for mitigation of impacts to City infrastructure from development within the Transect" By way of incorporating the aforementioned policies into Section 3.3, Staff recommended, and the Hearings Officer agreed, that Applicants' proposal is consistent with the intent of the DCC to promote an orderly pattern and sequence of growth because: 6 The Hearings Officer notes that Applicants agreed to limit the number of residential development to 187 single-family residential lots. This will require revisions of 3.3.9.4 which have been added as a requirement to the recommendation section of the decision. 36 • The WTZ concept is prescribed only to a specific area of the county, i.e., located between the Bend UGB and Shevlin Park, and do not apply to other areas; • The proposal provides protection for wildlife habitat and the threat of wildfire; and • A master plan process with compatibility criteria are required for all land divisions. Section 3.5 - Natural Hazards Policies Goal 1 Protect people, property, infrastructure, the economy and the environment from natural hazards. As previously noted in the findings above, Applicants' proposal requires new development in the WTZ to address the threat of wildfire. Applicants' included National Fire Protection Association (NFPA) standards into the proposed zoning ordinance. NFPA standards are recognized as the best practices for preventing property loss to wildfires. In addition, the WTZ code, 19.22.060(C)(2) requires a Wildfire Mitigation Plan that includes enforceable measures to prevent the ignition and spread of wildfire. The Hearings Officer finds this policy is met. Section 3.7 - Transportation The Transportation System was adopted in Ordinance 2012-005 and is hereby incorporated into this Plan as Appendix C. Appendix C - Transportation System Plan: Chapter 5 Section 5.3 - Arterial and Collector Road Plan Goal 4: Establish a transportation system, supportive of a geographically distributed and diversified economic base, while also providing a safe, efficient network for residential mobility and tourism. Goal 6. Designate access and land uses appropriate to the function of a given road. Findings: As noted previously in the findings, the Hearings Officer determined that the TSP Goals are not approval criteria for Applicants to meet. The County is charged with implementing the policies and goals provided in the TSP. Additionally, the County is responsible to coordinate with cities, such as the City, to ensure transportation development in the County is compatible with a city's transportation network. Staff sent a request for comment to the County Road Department, County Transportation Planner and the City of Bend Public Works Department. The County Road Department and County Transportation Planner provided comments related to this policy (See Section H. Public and Private Agency Comments earlier in the Recommendations). The Hearings Officer finds that Applicants' Transportation Impact Assessment ("TIA" - Exhibit 16 of Applicants' application materials) demonstrated that all transportation facilities, within the county, will continue to operate at acceptable levels of service under the proposed zone change and development of the properties. Staff noted, as highlighted by the County Transportation Planner, 37 the TIA numbers assume 286 residences, which is 86 more than what the comprehensive plan and WTZ ordinance prescribe. Staff noted that if 286 residences would not significantly affect an existing or planning transportation facility, then 200 residences would not necessitate changes to the functional classification of existing or planned transportation facilities. The Hearings Officer agrees. However, Staff also noted the discrepancies of the proposed comprehensive plan policy and zoning code language limiting the WTZ to 200 residential lots, the TIA calculations based on 286 residences, and the development agreement with the city apparently limiting the area to 187 residential lots. Applicants representative testified at the public hearing and provided additional comments in its September 25, 2018 rebuttal letter as follows: "Mr. Russell's [County Transportation Planner] comments note discrepancies in the applicant's burden of proof and related Traffic Impact Analysis reports with regard to the total number of units proposed for the WTZ As clarified by the applicant's attorneys at the public hearing, the total number of units proposed for the WTZ is 187 units (100 units located in the North Property and 87 units located in the South Property). The changes in the density numbers reflect the applicant's coordination of its plans over time with those of the City and associated Infrastructure Development Agreement submitted into the record. As explained at the hearing, the Traffic Impact Analysis report's calculations used residential numbers exceeding 187 units (the TIA estimated 227 residential units) as a worse -case scenario analysis under the Transportation Planning Rule. Studying more units than proposed provides a cushion to ensure the traffic impacts are fully addressed. Staff recommended that the Hearings Officer include a condition of final decision requiring the aforementioned DCC policy and zoning code language reflect 187 residential lots. The Hearings Officer finds that a condition of final decision limiting the residential lots to 187 lots is not necessary as Applicants revised the proposed WTZ zoning code to reflect limiting the residential units to 187 residential lots with 100 residential lots for the North Transect and 87 residential lots for the South Transect (see Applicants' Exhibit 33). The Hearings Officer finds that due to a likely oversight, Applicants will need to revise the language of DCC section 3.3.9.4., to limit residential development to 187 single-family residential lots (rather than the 200 residential lots that is currently listed), which has been included in the Recommendations. Additionally, Staff recommended that the Hearings Officer condition the final decision to incorporate the proposed language of DCC 19.22.070 - Street Improvements, as requested by the County Road Department. Applicants proposed no new arterials or collectors within the WTZ. Section 19.22.070(A) of the proposed zoning ordinance provides for the possibility of a public road, such as a collector, to be constructed through the subject properties if regional transportation needs and goals determine such a road to be necessary. Staff worked with Applicants to include a provision because of the potential for a north -south collector road to be identified in the WTZ area in a forthcoming update to the TSP. The Hearings Officer finds that a condition of final decision adding language to Section 19.22.070, Street Improvements, is not necessary as Applicants revised 38 the proposed WTZ zoning code to include language that allows the County to determine whether public roads are required to meet regional transportation needs and goals, including a collector road to provide north -south connectivity through the WTZ (see Applicants' Letter dated 9/25/18 - Exhibit 33). The Hearings Officer finds that with the revisions referenced above these policies can be met. Goal 7. Update as needed DCC Chapter 17.48, Design and Construction Specifications, to ensure all aspects of construction related to roads, pedestrian walkways and bicycle facilities occurring outside designated urban growth boundaries in Deschutes County are adequate to meet the needs of the traveling public. Findings: Staff recommended, and the Hearings Officer agrees, that new roads, including bicycle and pedestrian facilities, constructed as part of future development of the WTZ are required to be built to the standards in DCC Title 17. The Hearings Officer finds this policy can be met by Applicants' proposal. Chapter 4 - Urban Growth Management Section 4.2 - Urbanization Goal 1 - Coordinate with cities, special districts and stakeholders to support urban growth boundaries and urban reserve areas that provide an orderly and efficient transition between urban and rural lands. Policy 4.2.2 Promote and coordinate the use of urban reserve areas. Findings: Applicants asserted that the Bend Urban Area Reserve Comprehensive Plan (Title 19) designation is not an urban reserve established under OAR Chapter 660, Division 21. The Hearings Officer finds Policy 4.2.2 pertains to Urban Reserve Areas established under this administrative rule. Therefore, the Hearings Officer finds, this policy does not apply. b. Section 19.116.020. Standards for Zone Change (continued) B. That the change will not interfere with existing development, development potential or value of other land in the vicinity of the proposed action. Findings: Applicants addressed this criterion by dividing it into three categories: existing development; potential development; and value of land in the vicinity of the proposed action. Applicants also provided a description of the surrounding development of the subject properties, provided below (Applicants' Burden of Proof page 18): "The North Property abuts the City of Bend's Urban Growth Boundary to the east and south where the nearby land is developed at urban residential densities with residential neighborhoods, including a golf course, future school, mixed housing and neighborhood -scale commercial 39 services. To the north and west, the nearby property is within the County's jurisdiction and includes rural development consisting of parks, Tumalo Creek, the Deschutes River, and areas zoned Rural Residential (RR -10), Exclusive Farm Use (EFU), and Surface Mining (SM). The South Property abuts the City of Bend Urban Growth Boundary to the north and east where nearby land is either developed or planned for residential development at urban density levels. Property to the south has been approved for the development of the recently platted, 'Tree Farm" rural cluster development. Two -acre residential lots within the Tree Farm project border directly on the South Property. Shevlin Park and Tumalo Creek lies immediately to the west of the South Property. Taking into account the various nearby lands and development, "other land in the vicinity of the proposed action" consists of the urban neighborhoods abutting the subject property to the east and south and rural residential lands, parks, Deschutes River and Tumalo Creek, surface mining activities to the north and west." Applicants contend the proposal will not interfere with existing development, development potential and value in the vicinity of the North Property for the following reasons (Applicants' Burden of Proof pages 19 and 20): "Topography. The varied topography of the Coat's property geographically isolates the property from neighboring development. Wildlife Corridors: The plan amendment and zone change application includes a Wildlife Management and Forest Health Management Plan that has wildlife corridors through the property and along the western edge of the property (Exhibit 12). The corridors will ensure continued wildlife movement patterns across the Coat's property to development within Shevlin Park. The Forest Health Management plan identifies specific management objectives for this property that will be implemented with development to integrate wildlife habitat protection with forest fuels management to protect against the ignition and spread of wildfire. Public Facilities and Services: Public facilities and services, such as water and sewer, will be provided by municipal or well water, or private water company and the use of individual septic systems and will not interfere with existing development in the vicinity. Transportation: The proposed plan amendment and zone change will not interfere with existing development in the vicinity. The transportation layout includes an extension of Skyline Ranch Road, to be built to rural County standards and interior local planned roads. The traffic impact study performed by Lancaster Engineering shows all County transportation facilities will continue to operate at acceptable levels of service with the rezone and future development on the properties considering a maximum, worse case development scenario. 40 Scenic views and livability. The proposed plan amendment and zone change will not interfere with existing scenic views from development within the vicinity of the project area. Varied and sloping topography, low residential density, and minimum lot size of 2.5 acres, as well as provisions in the CC&Rs will ensure any future development will minimize interference with neighboring views and livability. Recreational opportunities: The proposed plan amendment and zone change will enhance existing, and create new connections to existing developed recreational opportunities to the east and west and will not interfere with existing recreational development. The applicants are coordinating with the Bend Parks and Recreation to integrate trails and multi -use paths within the property that connect to existing and proposed Parks and Recreation properties. Surface Mining. The proposed plan amendment and zone change anticipates the continuation of surface mining activities to the north-northwest on the Coat's property. The low density residential lot size of a minimum of 2.5 and shared access along the interior road will ensure the plan amendment and zone change will not interfere with the operations of the surface mine." Applicants contend the proposal will not interfere with existing development, development potential and value in the vicinity of the South Property for the following reasons (Applicants' Burden of Proof pages 20 and 21): "Topography. The topography of the South Property gradually slopes downhill to the west, towards Shevlin Park and Tumalo Creek. Future residential lots located on the western edge of the South Property will also be subject to planned conservation areas that will be managed for wildlife purposes and fire protection. The applicant's planned management corridors (wildlife and fire purposes) will provide a substantial buffer between Shevlin Park and future residential development. The topography of the site will work to minimize the visual impacts of residential development on Shevlin Park. A steep ridgeline on the eastern edge of the property will work to buffer planned home sites from urban development to the east. Residential development within the transect zone will be compatible with the neighboring Tree Farm development to the south. As noted above, applicants' planned management corridors (for fire and wildlife) will provide a buffer between the South Property and the developed Shevlin Commons neighborhood. Wildlife Corridors: The plan amendment and zone change application includes a designated wildlife management and migration corridor that abuts existing natural areas in Shevlin Park. This area will be managed to facilitate the movement of wildlife within the Tumolo Creek corridor. The applicant has developed a Wildlife Management and Forest Health Management Plan that identifies specific management prescriptions that will be implemented within the South Property to protect wildlife habitat and to provide additional protections against the ignition and spread of wildfire (Exhibit 12). 41 Public Facilities and Services: Public facilities and services, such as water and sewer, will be provided by municipal or well water and the use of individual septic systems and will not interfere with existing development in the vicinity. Transportation: The proposed plan amendment and zone change will not interfere with existing development in the vicinity. The transportation layout includes an extension of NW McClain Drive, to be built to rural County standards and interior local planned roads. The traffic impact study performed by Lancaster Engineering shows all County transportation facilities will continue to operate at acceptable levels of service with the zone change and development of the properties. Scenic views and livability: The proposed plan amendment and zone change will not interfere with existing scenic views from development within the vicinity of the project area. As noted above, a wildlife management corridor and no -build area will be imposed along the western edge of the South Property. These corridors will be managed as a wildlife corridor and for fire protection purposes. No buildings or structures will be developed in these areas. The applicants' conceptual development plan has been designed to minimize any visual impacts of the property on the adjacent Shevlin Park Area. Varied and sloping topography, low residential density, and minimum lot size of 2.5 acres, as well as provisions in the CC&Rs will ensure any future development will minimize interference with neighboring views and livability. Recreational opportunities: The proposed plan amendment and zone change will enhance existing, and create new connections to existing developed recreational opportunities to the west. Any trail corridors will be designed to minimize wildlife impacts and to facilitate fire protection opportunities. The applicants will coordinate with the Bend Parks and Recreation to integrate trails and multi -use paths within the property that connect to existing and proposed Parks and Recreation properties." Staff Comment: "Several property owners of an adjacent residential subdivision listed concerns about the lack of designs for potential development. They listed concerns of inadequate open space and devaluation of their property because of potential roads being developed adjacent to their homes. The commenters want a definitive plan for future development in the WTZ and suggested the proposal should show compliance with DCC 19.76, Site Plan Review. Staff requests the Hearings Officer to determine if the applicants' burden of proof is sufficient to comply with the criterion that "the change will not interfere with existing development, development potential or value of other land in the vicinity of the proposed action." Applicants' rebuttal letter, dated September 25, 2018, addressed the public's concerns regarding setbacks, wildlife habitat conservation and participation in the public process as stated below: 42 1. "Shevlin Ridge Residents Letter dated 9-13-181 The issues raised by some residents in the Shevlin Ridge neighborhood, adjacent to the South Transect area, include rear setbacks, wildlife habitat conservation and participation in public process. Each of these issues is addressed below. a. Rear Setbacks The proposed WTZ code contains the minimum setbacks proposed for the zoning code. When a development plan for the properties is prepared and submitted, it will show lot and street layout, open space and migration corridors. At that time, the setbacks necessary to protect surrounding properties can be analyzed in relation to the proposed lots and overall development and can be increased if needed to address compatibility with surrounding properties, which is an approval criterion for any development proposal in the WTZ. See 19.22.060A. b. Wildlife_ Habitat Conservation The Shevlin Ridge neighbors reference their personal observations of deer and elk utilizing portions of the South Property. They contend any future development plans should retain a migratory path for wildlife directly adjacent to their properties and the City's urban growth boundary. This contention is pre -mature in the context of the requested zone change and is contradicted by the evidence contained in the hearing record. The specific location of dedicated open space and resource management corridors will be determined at the time of future land divisions in accordance with a Wildlife Habitat Management Plan prepared by a professional biologist. See DCC 19.22.060(C). The Wildlife Report submitted as Exhibit 19 with the application materials was prepared by a professional biologist in conjunction with ODF&W to identify significant migration corridors and habitat. This report will be used as a framework for the additional reports which must be prepared and submitted as a part of any future development application in the WTZ The Wildlife Report for the South Property identifies the need to protect a permanent travel corridor for deer and elk along the western border of the South Property where it abuts Shevlin Park and the Tumalo Creek riparian area. This area provides for the north -south movement of wildlife in a corridor that adjoins dedicated and permanently protected areas of open space to the north (in Shevlin Commons) and to the south (in the Miller Tree Farm development). In contrast, the migration area referenced by the Shevlin Ridge homeowners directly abuts land within the urban growth boundary to the north and east. The 40 -acre parcel immediately north of this area was added to the urban growth boundary in 2016 and is zoned for the development of 116 residential homesites. An email response to the Shevlin Ridge letter from wildlife biologist, Wendy Wente of Mason, Bruce & Girard is attached to this letter as Exhibit 31. Based on her analysis of the property and ongoing coordination with the Oregon Department of Fish and Wildlife, Dr. Wente notes the importance of preserving a dedicated wildlife migration corridor along the western edge of the South Property. 43 Dr. Wente further notes that the preservation of a migration corridor to the east (as requested by the Shevlin Ridge homeowners) would have "no protected connection to undeveloped areas" and that conflicts with the urban growth boundary would make it less likely to be utilized by deer and elk as urban development within the City progresses over time. 2. Coats Family, LLC The Coats Family, LLC incorrectly claims its property is within the WTZ As shown on the maps submitted with the application materials and identified in the application materials, the property owned by the Coats Family, LLC, identified as 17-12-18-108 is outside of the WTZ boundary. It is the notched area on the northern boundary of the North Transect and was specifically excluded from the zone boundary. The Coats Family's concerns that the identification of wildlife habitat near their property could negatively impact its value is not responsive to any approval criteria for the present zone change. The wildlife biologist identified migration corridors and habitat where they exist on site. The proposed WTZ code provisions require additional reports based on the submitted framework plan when lots, streets and developments are proposed to ensure identified wildlife habitat will be protected with any development proposal within the zone. It is difficult to understand how the proposed code provisions will negatively impact the development potential of the Coats Family property, which is located outside of the WTZ zone. 3. Gladys Biglor Ms. Biglor identifies three areas of objection, which include: a. Inadequate public notice b. The proposal fails to meet the intent of the existing zone: this zone is "meant to serve as a buffer between the city and forest" C. Failure of the proponents to adequately assess fire danger both to Bend & Deschutes County as well as reciprocal fire danger to adjacent public lands to the north and west; especially lands managed by the United States Forest Service. a. The 'inadequate public notice'to which she refers is an article written in The Bend Bulletin, which improperly described the proposal as development in a 'Forest buffer zone. The Bulletin has since printed a correction, a copy of which is attached as Exhibit 32. The County mailed and published notice in the record meets the law and demonstrates adequate public notice was given. Moreover, the County Board will hold a de novo hearing which will address Ms. Biglor's concerns about missing the first one. b. The existing zoning is Urban Area Reserve, with the intent to serve as a holding category for future urbanization. However, the proposal is for a zone change, not for development under the existing zone. 44 c. Ms. eiglor clearly did not attend the public hearing or review the extensive record on the measures to address fire danger to surrounding lands. The present zoning contains no provisions for the prevention or mitigation of wildfire risk. The record contains ample evidence of the measures to which the applicant has studied the fire danger and the proposed code requirements, DCC 19.22.060A -C, ensure fire mitigation measures will be implemented, monitored and maintained prior to and in perpetuity for any development in the WTZ" The Hearings Officer first addresses the Shevlin Ridge comments. In their September 13, 2018 letter to the Hearings Officer, residents of the Shevlin Ridge community expressed concerns with the proposed 30 -foot rear lot line setback in the proposed WTZ zoning ordinance (Deschutes County Code Chapter 19.22. - specifically, DCC 19.22.050 Q. The Shevlin Ridge letter goes on to say that the 30 -foot rear setback "is inadequate and will adversely affect our home values" and "will be detrimental to the Elk and Mule Deer populations if all current migratory paths within the proposed WTZ are not identified..." The Hearings Officer finds no persuasive evidence in the record to support the Shevlin Ridge residents' contention that the proposed DCC 19.22.050 E rear setback (30 feet) will adversely impact the property value of Shevlin Ridge properties. The Hearings Officer finds that the proposed language in 19.22.060 A.1 provides a process whereby the residents of Shevlin Ridge can object/comment about proposed setbacks during any proposed land division. The Hearings Officer finds there is no evidence in the record that the application in this case, if approved, will "interfere with existing development potential." The Hearings Officer finds there is no evidence in the record demonstrating that the application in this case, if approved, will interfere with the "value of other land in the vicinity." The Hearings Officer finds, for the purposes of this review, that the proposed language of DCC 19.22.060 meets the requirements of this approval criterion ("the change will not interfere with existing development potential or value of other land in the vicinity of the proposed action"). The Hearings Officer finds the WTZ proposed ordinance (DCC 19.22.060.C.1) requires, as part of any future land division, a Wildlife Habitat Management Plan to be prepared by a professional biologist. The required Wildlife Habitat Management Plan, per DCC 19.22.060.C.1, must identify wildlife migration corridors for the purpose of protecting the identified wildlife. The Hearings Officer finds that if Elk and Deer migration corridors are identified adjacent to Shevlin Ridge properties such corridors must be considered in establishing setbacks. The Hearings Officer finds DCC 19.22.060 directly addresses the Shevlin Ridge "wildlife migration corridor" concerns. Finally, the Hearings Officer agrees with Applicants' comments (9/25/18 letter) that the uses permitted within the WTZ zone are more restrictive/limited than those permitted under the current zoning. The Hearings Officer finds the WTZ uses are likely to cause fewer negative impacts for Shevlin Ridge residents than uses that are currently allowed. 45 The Hearings Officer agrees with Applicants' statement, quoted above, that the Coats Family, LLC property, referenced in its letter, is not within the proposed WTZ boundary. The Hearings Officer finds that the Coats Family, LLC concerns about wildlife habitat and potential impacts to value of the Coats Family, LLC property are not responsive to any relevant approval criteria. The Hearings Officer reiterates that as part of any future proposed land division additional reports related to wildlife habitat and corridors will be required. At that time the Coats Family, LLC will have an opportunity to review the wildlife reports and provide comments to the County. The Hearings Officer has previously found that public notice for the Hearings Officer public hearing was adequate. The Hearings Officer agrees with Applicants that Gladys Biglor's concern that the "proposal fails to meet the intent of the existing zone" is not relevant to this application. Applicants', in this case, are proposing a new zone (WTZ). The Hearings Officer also agrees with Applicants' statement that "the record contains ample evidence of the measures to which the applicant has studied the fire danger and the proposed code requirements, DC 19.22.060A -C, ensure fire mitigation measures will be implemented, monitored and maintained prior to and in perpetuity for any development in the WTZ." For these reasons stated above, the Hearings Officer finds Applicants provided sufficient evidence to demonstrate the proposed zone change will not interfere with the existing development, development potential or value of other land in the vicinity of the proposed action. b. Section 19.116.020. Standards for Zone Change (continued) C. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. Findings: Applicants proposed amending DCC 19 to establish the new Westside Transect Zone. The stated purpose of the WTZ (19.22.010) is: "To accommodate and provide standards for land located between the urban and rural areas that provide a transitional residential development pattern with densities ranging from one unit per 2.5 to 10 acres. To guide development of stewardship communities which are designed and managed to protect wildlife habitat, and establish wildfire mitigation and prevention strategies." The area to be rezoned totals approximately 717 acres. The Subject Property, located between Bend's UGB and Shevlin Park, Tumalo Creek, and forest -use zoned lands, provides an opportunity to accommodate developments that transition from 2.S -acre lots to large, open space properties and resource management corridors. The proposed zoning ordinance requires standards and specific plans for all land divisions that focus on wildlife habitat conservation and wildfire prevention. The Hearings Officer finds the proposed change in classification is consistent with the purpose and intent of the proposed zone classification. 91 b. Section 19.116.020. Standards for Zone Change (continued) D. That the change will result in the orderly and efficient extension or provision of public services. Also, that the change is consistent with the County's policy for provision of public facilities. Findings: There are several properties surrounding the Subject Property that are outside of the UGB that are residentially developed and have water service from a quasi -municipal source or wells, on-site sewage disposal systems, electrical service, telephone services, etc. There are no known deficiencies or complications in extending public services to the area. The application materials provide the following response (Applicants Burden of Proof Statement, pages 22-24): "North Property. Extension of public services to the property to accommodate a low-density residential development will be limited to an extension of Skyline Ranch Road. This extension of Skyline Ranch Road as a collector road is shown on the City's TSP. Since Skyline Ranch Road is shown on the City's TSP plan, extending the road onto the Coat's property results in an orderly and efficient extension of the City's transportation systems plan. Other public services, such as water and sewer, will be provided either by water service from the City of Bend or individual wells, or private water company, and individual septic systems. Electricity will be provided by Pacific Power. A portion of the property is already within the City's firefighting limits and the remaining portions are either within or will be annexed into the Rural Fire Protection District #2. Police services are and will be provided by the Deschutes County Sherriff's office. South Property: Access to the South Property can be provided through an extension of Sage Steppe Drive (a local County roadway) and McClain Drive (a City of Bend local roadway). Access to individual lots can be provided through local county roads and no other transportation infrastructure is required. Other public services, such as water and sewer, will be provided either by water service from the City of Bend or individual wells and individual septic systems. Electricity will be provided by Pacific Power. The South Property will be annexed into the Deschutes County Rural Fire Protection District #2. Police services are and will be provided by the Deschutes County Sherriff's office. The zone change to the Westside Transect Zone is also consistent with the County's policy for provision of public facilities as found in Section 3.5 Public Facilities and Services of the Comprehensive Plan and reiterated below. Section 3.6, Public Facilities and Services This section addresses public facilities and services for rural areas, including water and sewer, police and fire protection, health and social services, schools, and libraries. The location of the 47 subject property adjacent to the Bend City limits which are served with public facilities and services makes for an efficient and cost-effective orderly pattern of growth of services by connecting to existing or planned City services. Services for future development of the property may include: Water. Water for future development will be provided either through individual wells and/or the extension of City water services or a private water company. See attached well logs from the area, Exhibit 17. City of Bend water services have previously been extended and stubbed to the southern boundary of the South Property in connection with the approved Tree Farm development. The applicants plan to work with the City of Bend to obtain authorization for the extension of City water to the subject properties. In the event the application is approved by the City, the additional water will be used for both residential purposes and as an additional tool for fire suppression. In the event City water is not extended to the site, water to the properties will be provided by individual exempt domestic wells, or a private water company. Sewer: Sewer will be provided by individual septic systems. The County will require a septic feasibility evaluation for each lot to confirm the use of an on-site septic system. Police: Deschutes County Sherriffs office. Fire Protection: A portion of the north end of the North Property is located in Rural Fire Protection District #2 and the rest lies outside the rural fire protection district boundaries. The South Property lies outside of the boundaries of the rural fire protection district. (Exhibit 18) Both properties will be annexed prior to any residential development. Fire protection will be enhanced by the implementation of the Wildlife Habitat and Forest Health Management Plan implemented by the CC&Rs and enforced by the HOA. Schools: Bend -La Pine School District owns 32 acres in the North Property. Schools are conditional use in the Westside Transect Zone subject to site plan review." Staff recommended, and the Hearings Officer agrees, that compliance with this criterion is demonstrated. The Hearings Officer finds that the change will result in the orderly and efficient extension or provision of public services and the change is consistent with the County's policy for provision of public facilities. Applicants have coordinated their plans consistent with both the County and City TSPs and are agreeable to improvements on their land in order to achieve an orderly and efficient extension of the City's transportation systems plan. All other public facilities can reasonably be accommodated for developments within the proposed WTZ. Moreover, the proposal does not inhibit extension of public facilities through the subject properties in any foreseeable way. Finally, Staff added that development in the WTZ will need to comply with applicable requirements of the DCC, including land use permits, building permits, and sewage disposal permit processes. Through these development review processes assurance of adequate public services and facilities will be verified. The Hearings Officer finds this criterion is met. 48 b. Section 19..116.020. Standards for Zone Change (continued) E. That there is proof of a change of circumstance or a mistake in the original zoning. Findings: Applicants addressed this criterion in their burden of proof, stating the following (Applicants' Burden of Proof Statement, pages 24-25): "The original zoning is UAR-10, Urban Area Reserve with a 10 -acre minimum lot size. In 1980, at the direction of the Land Conservation and Development Commission (LCDC), the City and County agreed to a new "Initial Urban Growth County" that resulted in establishing the boundaries of the current Urban Reserve Area. The 1980 Exceptions Statement (Exhibit 11) states, in part: The urban reserve area acts as a buffer to the more rural and resource lands beyond the UGB. The use of the urban reserve will promote more orderly and efficient development, and still retain the 1972 planning commitments which have resulted in financial commitments from both the public and private sectors. The minimum lot sizes of 2 % to 10 acres will be compatible with the adjacent land uses, and in most cases are the some as the adjacent MUA-10 and RR -10 zoning outside the UGB. The Exceptions Statement described the "Urban reserve" as follows: Urban reserve - Areas within the urban growth boundary but outside of the IUGB. These areas shall be considered first for inclusion in the IUGB area when need for additional urbanizable land occurs. The density shall be low - one dwelling per 2 1/2 to 10 acres or larger. 1. Mistake: Based on the above 1980s Exception Statement, the original zoning of the subject property of UAR-10 does not appear to have been a mistake at the time of its original designation. 2. Change in Circumstances: The following circumstances have changed with respect to the subject property and other property in the vicinity since the property was originally zoned UAR-10: Encroaching development in the City of Bend located west of the subject property has brought higher intensity residential and commercial uses to the area along with associated supportive public services as well as an increase in traffic. Recent adoption of the City's UGB studied and considered, but purposefully excluded, the subject property even though as stated above, the Urban Reserve area "shall be considered first for inclusion in the IUGB area when need for additional urbanizable land occurs." The increased threat of wildfire to the City of Bend arising on the public lands to the west and spreading to the City limits has become an area of concern for the City and 49 its residents. The 1990 Awbrey Hall Fire burned much of the area of the subject properties and changed the vegetation pattern of the area. In the years since the Awbrey Hall fire, minimal pine regeneration has occurred and the area is dominated by highly flammable bitterbrush, sagebrush and rabbit brush. The community has long recognized the threat to the City of Bend of wildfire coming from the west and has been working to establish a Wildland Urban Interface. The traffic congestion on the west side of Bend and the lack of the ability to widen many of the west side roads was a major factor contributing to the decisions not to urbanize the subject properties. The consultant reports and findings in the City's recent UGB process provide the basis for the change in circumstances since this property was planned for urbanization in the 1970's. The Westside Transect Zone represents a recognition that the subject properties are uniquely situated to provide a needed transition between the urban uses in the City of Bend and the park and public lands to the west of the subject property." The Hearings Officer finds Applicants' proposed findings demonstrate that there has been a change in circumstance since the Subject Property was initially zoned UAR-10 and SM, most notably the fact the area was not included in the latest 2016 UGB expansion. The Hearings Officer finds Applicants have demonstrated compliance with this criterion. c. Section 19.116.030. Record of Amendments. The signed copy of each amendment to the text of Title 19, including the legal description of all lands rezoned legislatively or quasi judicially, shall be maintained on file in the office of the County Clerk. A record of such amendments shall be maintained in a form convenient for the use of the public by the Planning Director, including a map showing the area and date of all amendments hereto. The County Clerk shall keep the map of DCC Title 19 as originally enacted. Every five years after the enactment hereof, a map showing the cumulative amendments hereto for that period shall be filed with the County Clerk. In case of inconsistencies, the controlling record shall be first the original map filed with the County Clerk, and its five-year updates, if any. The Planning Director's map shall control as to map amendments not shown on the original for changes less than five years old. Findings: Staff stated that if this proposal is approved, that this approval criterion should be made a condition of approval. The Hearings Officer finds that this criterion is a requirement of the County and not an applicable review criterion. 6111 d. Section 19.116.040. Resolution of Intent to Rezone. If, from the facts presented and findings and the report and recommendations of the Hearings Officer, as required by DCC 19.116.040, the County Commission determines that the public health, safety, welfare and convenience will be best served by a proposed change of zone, the County Commission may indicate its general approval in principal of the proposed rezoning by the adoption of a "resolution of intent to rezone." This resolution shall include any conditions, stipulations or limitations which the County Commission may feel necessary to require in the public interest as a prerequisite to final action, including those provisions which the County Commission may feel necessary to prevent speculative holding of property after rezoning. The fulfillment of all conditions, stipulations and limitations contained in said resolution, on the part of the applicant, shall make such a resolution a binding commitment on the County Commission. Such a resolution shall not be used to justify spot zoning or create unauthorized zoning categories by excluding uses otherwise permitted in the proposed zoning. Upon completion of compliance action by the applicant, the County Commission shall, by ordinance, effect such rezoning. The failure of the applicant to substantially meet any or all conditions, stipulations or limitations contained in a resolution of intent, including the time limit placed in the resolution, shall render said resolution null and void automatically and without notice, unless an extension is granted by the County Commission upon recommendation of the Hearings Officer. A. Content of Site Plan. Where a site plan is required pursuant to DCC 19.92, it shall include location of existing and proposed buildings, structures, accesses, off street parking and loading spaces and landscaping, existing and proposed topography, mechanical roof facilities, if subject property is so oriented as to become part of the view from adjacent properties, architectural perspective, layout and all elevations drawn without exaggerations, except where noted, including locations, area and design of signs and all landscaping. B. Resolution on Intent Binding. The fulfillment of all conditions, stipulations and limitations contained in the resolutions of intent on the part of the applicant shall make the resolution binding on the County Commission. Upon compliance with the resolution by the applicant, the County Commission shall, by ordinance, effect such reclassification. Findings: The Hearings Officer agrees with Staff that this criterion is not applicable at this time. The Commissioners can revisit this criterion after conducting a public hearing and deliberations. 51 C. OREGON ADMINISTRATIVE RULES (OAR) - CHAPTER 660, LAND CONSERVATION AND DEVELOPMENT DEPARTMENT 1. OAR 660-004, Division 4, Interpretation of Goal 2 Exception Process a. Section OAR 660-004-0018 -- Planning and Zoning for Exception Areas (1) Purpose. This rule explains the requirements for adoption of plan and zone designations for exceptions. Exceptions to one goal or a portion of one goal do not relieve a jurisdiction from remaininggoal requirements and do not authorize uses, densities, public facilities and services, or activities other than those recognized or justified by the applicable exception. Physically developed or irrevocably committed exceptions under OAR 660-004-0025 and 660-004-0028 and 660-014-0030 are intended to recognize and allow continuation of existing types of development in the exception area. Adoption of plan and zoning provisions that would allow changes in existing types of uses, densities, or services requires the application of the standards outlined in this rule. (2) For "physically developed" and "irrevocably committed" exceptions to goals, residential plan and zone designations shall authorize a single numeric minimum lot size and all plan and zone designations shall limit uses, density, and public facilities and services to those that satisfy (a) or (b) or (c) and, if applicable, (d): (a) That are the same as the existing land uses on the exception site, (b) That meet the following requirements: (A) The rural uses, density, and public facilities and services will maintain the land as "Rural Land" as defined by the goals, and are consistent with all other applicable goal requirements, (8) The rural uses, density, and public facilities and services will not commit adjacent or nearby resource land to uses not allowed by the applicable goal as described in OAR 660-004-0028; and (C) The rural uses, density, and public facilities and services are compatible with adjacent or nearby resource uses, (c) For uses in unincorporated communities, the uses are consistent with OAR 660-022-0030, "Planning and Zoning of Unincorporated Communities", if the county chooses to designate the community under the applicable provisions of OAR chapter 660, division 22; (d) For industrial development uses and accessory uses subordinate to the industrial development, the industrial uses may occur in buildings of any size and type provided the exception area was planned and zoned for industrial use on January 1, 2004, subject to the territorial limits and other requirements of ORS 197.713 and 197.714. 52 (3) Uses, density, and public facilities and services not meeting section (2) of this rule maybe approved on rural land only under provisions for a reasons exception as outlined in section (4) of this rule and applicable requirements of OAR 660- 004-0020 through 660-004-0022, 660-011-0060 with regard to sewer service on rural lands, OAR 660-012-0070 with regard to transportation improvements on rural land, or OAR 660-014-0030 or 660-014-0040 with regard to urban development on rural land. (4) "Reasons" Exceptions: (a) When a local government takes an exception under the "Reasons" section of ORS 197.732(1)(c) and OAR 660-004-0020 through 660-004-0022, plan and zone designations must limit the uses, density, public facilities and services, and activities to only those that are justified in the exception. (b) When a local government changes the types or intensities of uses or public facilities and services within an area approved as a "Reasons" exception, a new "Reasons" exception is required. (c) When a local government includes land within an unincorporated community for which an exception under the "Reasons" section of ORS 197.732(1)(c) and OAR 660-004-0020 through 660-004-0022 was previously adopted, plan and zone designations must limit the uses, density, public facilities and services, and activities to only those that were justified in the exception or OAR 660-022-0030, whichever is more stringent. Findings: The Oregon Statewide Goals and Guidelines exception process becomes relevant if a proposal does not meet one or more of the Oregon Statewide Goals ("Goals"). In this case the Applicant asserts that no Goal exceptions are necessary. On the other hand, the City and Staff argue that exceptions are necessary for Goal 3, Goal 4 and Goal 14. Applicants, in their written submissions (Applicants' Burden of Proof and Proposed Findings), argued that the Subject Property has been slated for urbanization since the 1960s; a time prior to the adoption of the Oregon Statewide Planning Goals and Guidelines. Applicants also asserted that there is no evidence in the record to suggest that any resource inventory, related to agricultural or forest land uses, has been performed for the Subject Property and no resource zoning classifications have been applied to the Subject Property. Applicants assert that there is scant history of farm or forest use(s) on the Subject Property. Applicants', based on the above, concluded that exceptions to Goal 3 and Goal 4 were not required. Applicants did acknowledge that the Subject Property was included within the geographical boundary covered by the 1980 Exception Statement (Applicants' Application Materials - Exhibit 11). The City, in a letter dated August 31, 2018 (Staff report, packet page 81) and a Memorandum dated December 1, 2017 (Staff report, packet page 78), disagreed with Applicants conclusion that exceptions were not required for Goal 3 and Goal 4. The City noted that the 1980 Exception Statement (Applicants' Burden of Proof Statement, Exhibit 11) concluded by saying that "based on 53 these considerations, the City and County are taking an exception to Goals 3 and 4 as they relate to the land between the IUGB and the UGB." The City and Applicants' agree that the Subject Property was included in the geographical boundary covered by the 1980 Exception Statement. The 1980 Exception Statement also, in a general manner, reviewed soil data and stated "the conclusion from this analysis is that these lands are marginal resource lands." The Hearings Officer finds that Applicants did not provide persuasive evidence, in the record, to dispute the conclusions reached in the 1980 Exception Statement. Restated, the Hearings Officer finds Applicants did not contest the validity of the 1980 Exception Statement. Therefore, the Hearings Officer finds the Subject Property, land which was included in the geographical boundary covered by the 1980 Exception Statement, was "marginal resource land" and that the County did take exceptions to Goal 3 and Goal 4 for the Subject Property. The City, in its December 31, 2017 Memorandum (Staff Report, packet pg. 83), referenced the regulatory language contained above in OAR 660-004-0018(1)) OAR 660-004-0018 (1), which states in part that "Exceptions ...do not authorize uses, densities, public facilities and services, or activities other than those recognized or justified by the applicable exception. The City and Staff contend that the proposed WTZ minimum lot size provision represents a change in use and/or density compared to the use and/or density allowed in the 1980 Exception Statement. The City and Staff requested the Hearings Officer find that "new" exceptions must be taken for Goal 3 and Goal 4 (and, also Goal 14 which is discussed below). The City noted that that the Subject Property was designated as: "urban reserve and surface mining, and zoned SR -2'/z, UAR-10, and SM. The majority of the SR -2 %z acres are currently developed with lots sizes of that size or smaller." (December 31, 2017 Memorandum - Staff Report, packet pg. 83). The Hearings Officer finds Applicants' provided no persuasive evidence in the record that the Subject Property was developed, on or before 1980, with lot sizes of 2.5 acres (the Hearings Officer used, in the Recommendations, 2.5 rather than 2 '/2) or smaller. The Hearings Officer finds Applicants' provided no persuasive evidence that the 1980 Exception Statement reference to 2.5 acres, or smaller lots, applied to the Subject Property. The Hearings Officer finds the Subject Property is zoned UAR -10 (10 -acre minimum lot size). The Hearings Officer finds the WTZ proposed minimum lot size is 2.5 acres. The Hearings Officer finds the proposed WTZ minimum lot size of 2.5 acres is a change in density from the current UAR-10 (10 -acres minimum). Based upon the above, the Hearings Officer finds that a "new" exception is required (must be taken) for Goal 3 and Goal 4.' As this recommendation will be considered de novo by the Commission it may be possible for the Applicant to provide persuasive and substantial evidence in the record to demonstrate that the 54 Arguments raised by the Applicants, City and Staff regarding the necessity of a Goal 14 exception will be addressed in the next section of the Recommendations. As will be seen in those findings the Hearings Officer determined that a Goal 14 exception is required. Finally, the City requested the following language be included in the WTZ (Chapter 19.22) as a "Purpose" section indicating where the zoning district may be applied: "19.22.020 Applicability The Westside Transect Zoning District may be applied on the west side of the Deschutes River and east of Tumalo Creek on lands designated Urban Area Reserve on the Deschutes County Comprehensive Plan map where exceptions to Statewide Planning Goals 3, 4 and 14 have been taken to allow densities below one dwelling unit per ten acres." Applicants' representative, at the Hearings Officer public hearing, indicated that Applicants did not object to the addition of the City proposed "applicability" language. The Hearings Officer finds the City's requested language, adding an "applicability" section, as quoted above, is reasonable and appropriate. b. Section OAR 660-004-0040 -- Application of Goal 14 to Rural Residential Areas Staff requested the Hearings Officer to determine if the provisions of OAR 660-004-0040 apply to this case. Staff also requested, in the event the Hearings Officer determined OAR 660-004-0040 are applicable to this case, to determine if Applicants adequately addressed the application of Goal 14 to Rural Residential Areas and if Applicants' proposed findings for a Goal 14 exception are adequate. OAR 660-004-0040 states, in part, the following: "(1) The purpose of this rule is to specify how Goal 14 "Urbanization" applies to rural lands in acknowledged exception areas planned for residential uses. (2) For purposes of this rule, the definitions in ORS 197.015, the Statewide Planning Goals and OAR 660-004-0005 shall apply. In addition, the following definitions shall apply. (a) Accessory dwelling unit' means a residential structure that is used in connection with or that is auxiliary to a single-family dwelling. (b) 'Habitable dwelling' means a dwelling that meets the criteria set forth in ORS 215.213(1)(g)(A)-(D) or ORS 215.283(1)(p)(A)-(D), whichever is applicable. (c) 'Historic home' means a single-family dwelling constructed between 1850 and 1945. Subject Property was not agricultural or forest land (resource land) as defined in Statewide Goals 3 & 4 at the time of the 1980 Exception Statement was approved by the Commission. 55 (d) 'Minimum lot size' means the minimum area for any new lot or parcel that is to be created in a rural residential area. (e) 'New single-family dwelling' means that the dwelling being constructed did not previously exist in residential or nonresidential form. New single-family dwelling does not include the acquisition, alteration, renovation or remodeling of an existing structure. (f) 'Rural residential areas' means lands that are not within an urban growth boundary, that are planned and zoned primarily for residential uses, and for which an exception to Goal 3 'Agricultural Lands', Goal 4 "Forest Lands'; or both has been taken. (g) 'Rural residential zone currently in effect' means a zone applied to a rural residential area that was in effect on October 4, 2000, and acknowledged to comply with the statewide planning goals. (h) 'Single-family dwelling' means a residential structure designed as a residence for one family and sharing no common wall with another residence of any type. (3)(a) This rule applies to rural residential areas. (b) Sections (1) to (9) of this rule do not apply to the creation of a lot or parcel, or to the development or use of one single-family dwelling on such lot or parcel, where the application for partition or subdivision was filed with the local government and deemed to be complete in accordance with ORS 215.427(3) before October 4, 2000. (c) This rule does not apply to types of land listed in (A) through (H) of this subsection: (A) Land inside an acknowledged urban growth boundary, (8) Land inside an acknowledged unincorporated community boundary established pursuant to OAR chapter 660, division 22, (C) Land in an acknowledged urban reserve area established pursuant to OAR chapter 660, divisions 21 or 27, (D) Land in an acknowledged destination resort established pursuant to applicable land use statutes and goals, (E) Resource land, as defined in OAR 660-004-0005(2); (F) Nonresource land, as defined in OAR 660-004-0005(3); (G) Marginal land, as defined in former ORS 197.247 (1991 Edition); or (H) Land planned and zoned primarily for rural industrial, commercial, or public use. (4)(a) Sections 1, 3-9 and 13 of this rule took effect on October 4, 2000. (b) Some rural residential areas have been reviewed for compliance with Goal 14 and acknowledged to comply with that goal by the department or commission in a periodic review, acknowledgment, or post -acknowledgment plan amendment proceeding that occurred after the Oregon Supreme Court's 1986 ruling in 1000 Friends of Oregon v. LCDC, 301 Or 447 (Curry County), and before October 4, 2000. 56 Nothing in this rule shall be construed to require a local government to amend its acknowledged comprehensive plan or land use regulations for those rural residential areas already acknowledged to comply with Goal 14 in such a proceeding. However, if such a local government later amends its plan's provisions or land use regulations that apply to any rural residential area, it shall do so in accordance with this rule." Applicants provided the following statements related to OAR 660-004-0040 in the Burden of Proof (Burden of Proof Statement pages 35 and 36). "The subject properties were the subject of goal exceptions to Statewide Planning Goals 3 and 4 at the time they were designated Urban Reserve. However, because they are designated for urban use, they do not meet the definition of "Rural Land" contained in the Definitions Section of the Statewide Planning Goals, which provides as follows: RURAL LAND. Land outside urban growth boundaries that is: (a) Non -urban agricultural, forest or open space, (b) Suitable for sparse settlement, small farms or acreage homesites with no or minimal public services, and not suitable, necessary or intended for urban use, or (c) In an unincorporated community. The acknowledged Exceptions Statement makes it clear the subject properties were not considered "rural" land as it refers to all lands outside the UGB as being designated "natural resources,""rural" or "urban reserve." See Exhibit 11. The acknowledged Exceptions Statement repeatedly refers to "rural" and "resource lands" separately from the urban reserve lands. The Oregon Supreme Court has suggested the definition of "Rural Land" in the Statewide Planning Goals does not necessarily include all lands outside a UGB and that there are some lands outside a UGB which do not meet the definition of rural. See, 1000 Friends of Oregon v. LCDC, 301 Or. 447, _, 724 P. 2d 268 (1986). The subject properties do not meet the Goal definition of "rural land" and do not fall within the lands to which the above rule itself describes as applicable under subsection 2 (a) because they are neither rural nor planned and zoned primarily for residential use. Thus, the above provisions of Division 4 are inapplicable to the present application. The inapplicability of the above provisions does not relieve the applicant of the burden to show compliance with Goal 14, which is addressed above." The first step in determining whether OAR 660-004-0040 applies in this case is to decide if there is one or more definition(s) in ORS 197.005 or OAR 660-004-0005 that are relevant. The Hearings Officer reviewed ORS 197.005 and OAR 660-004-0005 and found no defined terms that would assist in the interpretation of OAR 660.004-0040. The Hearings Officer finds OAR 660-004-0040 (2)(f) is relevant to these findings. OAR 660-004-0040 (2)(f) defines "rural residential areas" to include lands that are not within an UGB, that are planned and zoned primarily for residential uses and for which 57 an exception to Goal 3 and/or Goal 4 have been taken. The Hearings Officer finds the Subject Property is not within the Bend UBG, is zoned primarily for residential uses (UAR-10) and an exception to both Goals 3 and 4 were taken (1980 Exception Statement). The Hearings Officer finds the Subject Property is a "rural residential use" as that phrase is defined in OAR 660-004-0040 (2)(f). OAR 660-004-040 (5) states, in part, that "the rural residential areas described in subsection (2)(f) of this rule are 'rural lands."' Division(3)(a) says that "this rule applies to "rural residential areas." OAR 660-004-0040 (3)(b) sets forth instances where the OAR 660-004-040 rules do not apply. The Hearings Officer finds Applicants did not argue that OAR 660-004-040 does not apply because the Subject Property falls within one of the (3)(b) exceptions. The Hearings Officer finds the Applicants' argument/statement, as quoted above, is not persuasive. The Hearings Officer finds that when a local government, such as the County, amends its Comprehensive Plan or other land use regulations (i.e. zoning ordinance) the jurisdiction must comply with OAR 660-0004-0040. The Hearings Officer finds Applicants are clearly requesting the County Comprehensive Plan and zoning ordinance to be amended. The Hearings Officer finds OAR 660-004-0040 applies to this case. Applicants also argued that a minimum lot size of 2.5 lots/dwellings per acre is not necessarily an urban use (Applicants' Burden of Proof Statement, pages to 35). Applicants cited numerous cases indicating that a minimum lot size, such as 2.5 lots/dwelling per acre, is not singularly determinative of whether a density and/or use is urban or rural. The City also cited cases that indicated that a minimum lot size of 10 acres was likely to be considered as a rural use and a minimum lot size of 1 acre would likely be considered an urban use. The Hearings Officer found no single case, cited by Applicants or the City, that could definitively support a finding that a minimum lot size of 2.5 acres, even if the lots were not served by public sewer, would be an urban or a rural use. The Hearings Officer finds that a conclusion that the WTZ proposed 2.5 -acre minimum lot size, along with a finding that no public sewer will be provided to the WTZ zone lots, is urban or rural is equally defensible and supportable. The Hearings Officer finds that the 2.5 -acre minimum lot size is closer to the "clearly urban" (1 -acre lot size) than it is to the "clearly rural" (10 -acre minimum lot size). For the purposes of the Recommendations, the Hearings Officer finds that the WTZ 2.5 -acre minimum lot size, even without public sewer service, is an urban use. The Hearings Officer finds an exception must be taken for Goal 14 2. OAR 660-011, Division 11, Public Facilities Planning a. Section 660-011-0065 --Water Service to Rural Lands (1) As used in this rule, unless the context requires otherwise: 58 (a) "Establishment" means the creation of a new water system and all associated physical components, including systems provided by public or private entities; (b) "Extension of a water system" means the extension of a pipe, conduit, pipeline, main, or other physical component from or to an existing water system in order to provide service to a use that was not served by the system on the applicable date of this rule, regardless of whether the use is inside the service boundaries of the public or private service provider. (c) 'Water system" shall have the same meaning as provided in Goal 11, and includes all pipe, conduit, pipeline, mains, or other physical components of such a system. (2) Consistent with Goal 11, local land use regulations applicable to lands that are outside urban growth boundaries and unincorporated community boundaries shall not. (a) Allow an increase in a base density in a residential zone due to the availability of service from a water system; (b) Allow a higher density for residential development served by a water system than would be authorized without such service, or (c) Allow an increase in the allowable density of residential development due to the presence, establishment, or extension of a water system. (3) Applicable provisions of this rule, rather than conflicting provisions of local acknowledged zoning ordinances, shall immediately apply to local land use decisions filed subsequent to the effective date of this rule. Findings: The Hearings Officer agrees with Staff and Applicants that complying with the proposed density of one unit per 2.5 acres is achievable with or without service from a water system. 3. OAR 660-011, Division 12, Transportation Planning a. Section 660-012-0060 -- Plan and Land Use Regulation Amendments (1) If an amendment to a functional plan, an acknowledged comprehensive plan, or a land use regulation (including a zoning map) would significantly affect an existing or planned transportation facility, then the local government must put in place measures as provided in section (2) of this rule, unless the amendment is allowed under section (3), (9) or (10) of this rule. A plan or land use regulation amendment significantly affects a transportation facility if it would. (a) Change the functional classification of an existing or planned transportation facility (exclusive of correction of map errors in an adopted plan), (b) Change standards implementing a functional classification system; or (c) Result in any of the effects listed in paragraphs (A) through (C) of this subsection based on projected conditions measured at the end of the planning period identified in the adopted TSP. As part of evaluating projected conditions, 59 the amount of traffic projected to be generated within the area of the amendment may be reduced if the amendment includes an enforceable, ongoing requirement that would demonstrably limit traffic generation, including, but not limited to, transportation demand management. This reduction may diminish or completely eliminate the significant effect of the amendment. (A) Types or levels of travel or access that are inconsistent with the functional classification of an existing or planned transportation facility, (e) Degrade the performance of an existing or planned transportation facility such that it would not meet the performance standards identified in the TSP or comprehensive plan, or (C) Degrade the performance of an existing or planned transportation facility that is otherwise projected to not meet the performance standards identified in the TSP or comprehensive plan. (2) If a local government determines that there would be a significant effect, then the local government must ensure that allowed land uses are consistent with the identified function, capacity, and performance standards of the facility measured at the end of the planning period identified in the adopted TSP through one or a combination of the remedies listed in (a) through (e) below, unless the amendment meets the balancing test in subsection (2)(e) of this section or qualifies for partial mitigation in section (11) of this rule. A local government using subsection (2)(e), section (3), section (10) or section (11) to approve an amendment recognizes that additional motor vehicle traffic congestion may result and that other facility providers would not be expected to provide additional capacity for motor vehicles in response to this congestion. (a) Adopting measures that demonstrate allowed land uses are consistent with the planned function, capacity, and performance standards of the transportation facility. (b) Amending the TSP or comprehensive plan to provide transportation facilities, improvements or services adequate to support the proposed land uses consistent with the requirements of this division; such amendments shall include a funding plan or mechanism consistent with section (4) or include an amendment to the transportation finance plan so that the facility, improvement, or service will be provided by the end of the planning period. (c) Amending the TSP to modify the planned function, capacity or performance standards of the transportation facility. (d) Providing other measures as a condition of development or through a development agreement or similar funding method, including, but not limited to, transportation system management measures or minor transportation improvements. Local governments shall, as part of the amendment, specify when measures or improvements provided pursuant to this subsection will be provided. 60 (e) Providing improvements that would benefit modes other than the significantly affected mode, improvements to facilities other than the significantly affected facility, or improvements at other locations, if.• (A) The provider of the significantly affected facility provides a written statement that the system -wide benefits are sufficient to balance the significant effect, even though the improvements would not result in consistency for all performance standards, (e) The providers of facilities being improved at other locations provide written statements of approval, and (C) The local jurisdictions where facilities are being improved provide written statements of approval. (3) Notwithstanding sections (1) and (2) of this rule, a local government may approve an amendment that would significantly affect an existing transportation facility without assuring that the allowed land uses are consistent with the function, capacity and performance standards of the facility where: (a) in the absence of the amendment, planned transportation facilities, improvements and services as set forth in section (4) of this rule would not be adequate to achieve consistency with the identified function, capacity or performance standard for that facility by the end of the planning period identified in the adopted TSP; (b) Development resulting from the amendment will, at a minimum, mitigate the impacts of the amendment in a manner that avoids further degradation to the performance of the facility by the time of the development through one or a combination of transportation improvements or measures, (c) The amendment does not involve property located in an interchange area as defined in paragraph (4)(d)(C); and (d) For affected state highways, ODOT provides a written statement that the proposed funding and timing for the identified mitigation improvements or measures are, at a minimum, sufficient to avoid further degradation to the performance of the affected state highway. However, if a local government provides the appropriate ODOT regional office with written notice of a proposed amendment in a manner that provides ODOT reasonable opportunity to submit a written statement into the record of the local government proceeding, and ODOT does not provide a written statement, then the local government may proceed with applying subsections (a) through (c) of this section. (4) Determinations under sections (1)-(3) of this rule shall be coordinated with affected transportation facility and service providers and other affected local governments. Findings: Applicants submitted a transportation impact study ("TIA" - [also referred as the TIS in Applicants' Burden of Proof Statement and later responsive submissions]) from Lancaster Engineering dated December 19, 2017 and a technical memorandum dated July 31, 2018 61 (collectively the TIA and technical memorandum are referred to as the "Transportation Study"). The Hearings Officer finds that the Transportation Study evaluated potential transportation impacts associated with Applicant's proposal in this case through a 2040 horizon year. (1) If an amendment to a functional plan, an acknowledged comprehensive plan, or a land use regulation (including a zoning map) would significantly affect an existing or planned transportation facility, then the local government must put in place measures as provided in section (2) of this rule, unless the amendment is allowed under section (3), (9) or (10) of this rule. A plan or land use regulation amendment significantly affects a transportation facility if it would: (a) Change the functional classification of an existing or planned transportation facility (exclusive of correction of map errors in an adopted plan); Findings: Applicants provided the following responsive comments: "The evidence in the original Transect TIS, the WIG analysis, and this addendum demonstrates there is no need for any future changes to the functional classification of existing or planned transportation facilities. Accordingly, this section is not triggered." The Hearings Officer finds, based upon the information contained in the Transportation Study, that there is no need for any future changes to the functional classification of existing or planned transportation facilities. (b) Change standards implementing a functional classification system; or Findings: The Transportation Study, provided the following responsive comments: "The evidence in the original Transect TIS, the WIG analysis, and this addendum demonstrates there is no need for any future changes to the standards implementing the functional classification system of either City of Bend or Deschutes County transportation facilities. Accordingly, this section is not triggered." The Hearings Officer finds, based upon the information contained in the Transportation Study, that there is no need for any future changes to the functional classification of existing or planned transportation facilities. (c) Result in any of the effects listed in paragraphs (A) through (C) of this subsection based on projected conditions measured at the end of the planning period identified in the adopted TSP. As part of evaluating projected conditions, the amount of traffic projected to be generated 62 within the area of the amendment may be reduced if the amendment includes an enforceable, ongoing requirement that would demonstrably limit traffic generation, including, but not limited to, transportation demand management. This reduction may diminish or completely eliminate the significant effect of the amendment. (A) Types or levels of travel or access that are inconsistent with the functional classification of an existing or planned transportation facility, (8) Degrade the performance of an existing or planned transportation facility such that it would not meet the performance standards identified in the TSP or comprehensive plan, or (C) Degrade the performance of an existing or planned transportation facility that is otherwise projected to not meet the performance standards identified in the TSP or comprehensive plan. Findings: The Transportation Study, provided the following responsive comments: 'The data, planning -horizon analysis, and mitigation measures contained in the WIG analysis and outlined in this addendum are sufficient to address the impacts to the transportation system that will result from the development of the Transect properties following the proposed change in zoning. The mitigation measures for each of the development areas considered in the WIG, including all Transect properties that are the subject of this proposed change in zoning, will be documented in a binding Development Agreement between the WIG property owners and the City of Bend, which will ensure acceptable operation through the planning horizon in 2040. Similarly, the data and analysis contained in the original TIS, together with this addendum, address the impacts to the transportation system in Deschutes County from the development of the Transect properties following the proposed change in zoning. The original Transect TIS, the WIG analysis and Development Agreement, and this addendum identify the impacts, mitigation measures, and funding sources necessary to satisfy the TPR for the proposed change in zoning of the Transect lands. Conclusion The operational analysis from the original TIS showed that during background year 2030 conditions with site trips from the proposed rezone included, all intersections were anticipated to operate within jurisdictional guidelines. This addendum addresses operational analysis for background year 2040 conditions with site trips from the proposed rezone included. In this scenario, there are three intersections in the City of Bend that are anticipated to operate beyond operational standards with the proposed rezone. No County intersections or roadways are anticipated to be impacted significantly with the rezone. 63 Of the intersections that are being impacted with the rezone, two have identified mitigations that are planned as part of this development and the surrounding proposed developments. The WIG Development Agreement lists the mitigation measures, which include: • Modification of the existing single lane roundabout at the intersection of NW Mount Washington Drive at NW Skyliners Road (jointly funded by WIG and the City of Bend) • Construction of a traffic signal at the intersection of NW Mount Washington Drive at Regency Street (jointly funded by WIG and the City of Bend) • Construction of a single lane roundabout at the intersection of NW Shevlin Park Road at NW Skyline Ranch Road (funded and constructed entirely by WIG) Underline added" The City provided the following comments in response to Applicants' proposed findings of TPR compliance, noting that the Transportation Study identified three intersections within the City that "are anticipated to operate beyond operational standards" by the end of the 2040 horizon year: "Two of the identified improvements necessary to mitigate the significant effects will not be constructed: a signalized intersection at NW Mt. Washington Drive and Regency Street, and the modification of the existing single -lane roundabout at the intersection of NW Mt. Washington Drive and NW Skyliners Road. For both of these intersections, a proportionate share of the cost of mitigating the impacts of the rezone trips will be accepted by the City as part of the DA. These funds will be used by the City on improvements to facilities other than the significantly affected facilities. Therefore, in order to comply with the TPR, OAR 660-012-0060(2)(e)(A), the applicants must obtain a written statement from the City that the systemwide benefits of mitigation are sufficient to balance the significant effect, even though the improvements would not result in consistency for all performance standards." Based on the evidence contained in the record, the Hearings Officer finds that Applicants' proposal will not have a "significant effect" on any existing or planned Deschutes County transportation facilities. However, the Hearings Officer notes that the Transportation Study does indicate the proposed zone change and comprehensive plan amendments would have a significant effect on three City intersections by the end of the 2040 horizon year if the impacts of such development are studied and evaluated collectively with all of the land added to the City UGB through its 2016 expansion effort. The Hearings Officer finds that the record demonstrates that Applicants' have worked cooperatively with the City and a group of developers (called the "West side Infrastructure Group" or "WIG") to evaluate and address the collective impacts of both the recently added UGB lands and the transect lands on City transportation infrastructure through the year 2040 planning horizon. That process resulted in a detailed Development Agreement ("DA" - See attachment to Applicants email to Staff dated September 7, 2018), under which Applicants agreed to fund and construct certain improvements to City transportation infrastructure and to make proportionate share monetary contributions towards other planned City transportation facilities. Section 5.4 of the Development Agreement specifically provides that: 64 "The City agrees that the mitigation measures described in this Agreement fully address off- site impacts to City transportation and water facilities for development of 100 single-family residential units in Transect North and 87 single-family residential units in Transect South and that this Agreement can be submitted to the County as part of the Transect Application to demonstrate full mitigation of off-site transportation and water impacts consistent with the terms of this Agreement." Through its comment letter dated August 31, 2018, the City indicated that it does not intend to make improvements to two of the intersections that are significantly impacted by development of the transect proposal (a signalized intersection at NW Mt. Washington Drive and Regency Street and the modification of the existing single -lane roundabout at the intersection of NW Mt. Washington Drive and NW Skyliners Road). In lieu of making such identified improvements, the City communicated its intent to utilize monetary contributions from Applicants, as a result of approval of this application, to make other improvements to City transportation facilities. As a result, OAR 660-012- 0060(2)(e)(A) requires a written statement from the City that the system -wide benefits are sufficient to balance the significant effect, even though the improvements would not result in consistency for all performance standards. The Hearings Officer finds that the City's execution of the DA will provide the "written statement" required under OAR 660-012-0060(2)(e)(A). The Hearings Officer recommended a condition of approval that required the DA to be executed by the City and Applicants in substantially the same form as contained in the hearing record (attachment to Applicants email to Staff dated September 7, 2018). The Hearings Officer finds that in the event the DA is not fully executed by all parties, Applicants should be required to show an alternative means for compliance with the requirements of the TPR. Comments provided by the County transportation planner (email dated 9/07/18 from Peter Russell to Staff) and the City (Letter, dated August 31, 2018 from Stephens to Staff) noted inconsistencies between the number of residential units authorized in the text of the West Side Transect Zone (200 +/- total units), the units evaluated by Applicants in their initial TIA (286 total units) and the final number of units evaluated through the DA (187 units). At the public hearing, Applicants indicated that they were prepared to accept a condition of approval that would limit residential development on the Subject Property, within the transect zone, to 187 total units consistent with the transportation assumptions contained in the DA. In their September 25 letter, the Applicants submitted revised language for the WTZ code limiting development to 187 lots. The proposed Comprehensive Plan text also contains a density limit and therefore the Hearings Officer recommends a condition of approval that the proposed Comprehensive Plan text also be revised to 187 -total units, with 100 residential units allocated to the North Property and 87 residential units allocated to the South Property. 65 The Hearings Officer finds that Applicants satisfied the requirements of the Transportation Planning Rule subject to the conditions of approval specified herein. 4. OAR 660-015, Division 15, Statewide Planning Goals and Guidelines a. Sections 660-015-0000 --Statewide Planning Goals and Guidelines #1 through #14 Finding: The Statewide Planning Goals are outlined in the Applicants' Burden of Proof Statement and provided below. "Goal 1, Citizen Involvement. Deschutes County Planning Division will provide notice of the application to the public through individual notice to affected property owners, posting of the subject property with a notice of proposed land use action sign, and notice of the public hearing in the "Bend Bulletin" newspaper. In addition, a public hearing will be held on the proposed text amendment, plan amendment, and zone change. Goal Z Land Use Planning. Goals, policies and processes related to zone change applications are included in the Deschutes County Comprehensive Plan, Title 23, and Deschutes County Code, Title 19. The application of the processes and policies and regulations are documented within this application. Goal 3, Agricultural Lands. No agricultural lands are involved in the proposed plan amendment and zone change. Therefore Goal 3 does not apply. In addition, the 1980 Exception Statement (Exhibit 11) took exception to Goal 3 which includes the land in the Urban Reserves In the event it is determined Goal 3 does apply, the applicants have submitted evidence and findings demonstrating why an exception to Goal 3 is warranted in Section Vll hereof. 8 According to Applicants, Deschutes County has historically and consistently treated the Urban Reserve lands as exception lands for purposes of Goals 3 and 4, which do not require a new exception for any zone changes to zoning designations within the Urban Reserve. See Plan and Zone Change from Industrial Reserve and Surface Mining to Urban Area Reserve for Miller Tree Farm (PA -04-9 / ZC-04-7) where the Hearings Officer concluded and the Board agreed the property was the subject of prior Goal 3 and 4 exceptions, was not farm or forest land and no new goal exceptions were required to change the zoning designations within the Urban Reserve from one zoning designation to another. See also Ordinance 91.030 when the Board adopted a plan amendment and zone change to reconfigure the Cascade Highlands land straddling the IUGB and re -designate land from Urban Reserve to Residential -Standard and vice versa, without new goal exceptions. 66 Goal 4, Forest Lands. No forest lands are involved in the proposed plan amendment and zone change. Therefore Goal 4 does not apply. In addition, the 1980 Exception Statement (Exhibit 11) took exception to Goal 4 which includes the land in the Urban Reserve. In the event it is determined Goal 4 does apply, the applicants have submitted evidence and findings demonstrating why an exception to Goal 4 is warranted in Section VII hereof. Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. No Goal 5 resources are located on the subject properties. There are no identified or inventoried Goal 5 open spaces, scenic spaces (such as Landscape Management Area Combining Zone), historic areas, natural resources, or surface mines on the properties. Nevertheless, the applicants recognize the resource values of the properties and do propose significant protections for wildlife and natural resources through the establishment of resource management corridors and CC&Rs for implementation and enforcement." Finding: Gladys Biglor (emails dated 9/18/18 and 9/25/18) suggested that the legally mandated public notice was inadequate because of an error in a Bend Bulletin article. Applicants, in a 9/25/18 open record submission, noted that the Bend Bulletin printed a correction. Further, Applicants noted in the 9/25/18 submission that the County mailed and published legally required notices and that the Commission will hold a de novo hearing allowing Biglor another opportunity to present her concerns. The Hearings Officer finds the County notice of the Hearings Officer's hearing was adequate and met the requirements of Goal 1 and all other relevant notice requirements. The Hearings Officer addressed, earlier in the Recommendations, Applicants' arguments with respect to the need for "new" exceptions for Goal 3 and Goal 4. The Hearings Officer incorporates the findings for OAR 660-004-0018 as additional findings for this section of the Recommendations. In summary, the Hearings Officer found the 1980 Exception Statement included the Subject Property, the Subject Property was designated "marginal resource land," and exceptions to Goals 3 and 4 were taken. The Hearings Officer found that the application, in this case, would change the minimum lot size from 10 -acres to 2.5 -acres thereby necessitating an "new" exception for Goals 3 and 4. The Hearings Officer left the door open for Applicants' to present new evidence to the Commission relating to the applicability of Goals 3 and 4 to the Subject Property and whether or not one or more "new" Goal exception is/are required. Portions of tax lot 100, Assessor's Map 17-11-13, and tax lot 100, Assessor's Map 17-12-18, are near the Deschutes River and therefore part of the Oregon Scenic Waterway. Staff, from the Oregon Parks and Recreation Department ("OPRD"), provided comments regarding this situation. Applicants' responded as follows (Applicant letter, 9/25/18, pages 1 and 2): "Oregon Parks and Recreation Department submitted comments indicating a portion of the area within the North Property is in the State Scenic Waterway, specifically the Middle Deschutes Scenic Waterway, as is, therefore, subject to scenic waterway program rules. Laurel 67 Hillmann's August 21, 2018 email to County Planner, Zechariah Heck, notes that the applicant's burden of proof indicates there are no identified Goal 5 resources and failed to address the scenic and recreational resources of the designated Deschutes River State Scenic Waterway. In addition, Ms. Hillmann sought clarity whether the proposal includes land adjacent to Tumalo State park. In testimony dated September 11, 2018, Ms. Hillmann speculates that changing the amount and type of development could change the character of that stretch of the water way and the classification category 'recreation river area' which she again speculates would have likely been different during the management planning and rule development processes for that section of the Deschutes River. a. Tumalo State Park. The subject property does not include land adjacent to Tumalo State Park. This misunderstanding may be due to the County's initial notice of public hearing which contained a map that incorrectly showed the entire tax lot of 17-12-18, tax lot 100 as part of the proposed WTZ. Tax lot 100 does abut property owned by Oregon Parks and Recreation, however, the land subject to the proposed zone change does not extend to the Park's property. The split of Tax Lot 100 can be cleaned up with a roll change at the Assessor's office if the present proposal is approved. b. Goal 5, State Scenic Waterway. The County's Comprehensive Plan (2011) Chapter 2, Resource Management Section 2.5 Water Resources identifies that area of the upper Deschutes River from Robert Sawyer Park to Tumalo State park as being within the Oregon Scenic Waterway. This section of the river runs along a portion of the north part of the North Property (along tax lot 100). While the State Scenic Waterway is a Goal 5 resource within the Comprehensive Plan, Deschutes County did not specifically identify and inventory any resources, including the river sections within the Title 19, Bend Urban Reserve Area and did not apply a protected overlay such as the Landscape Management Zone found in Title 18 [footnote omitted]. The Comprehensive Plan states that 'Landowners wishing to pursue a new activity within a quarter mile of a Scenic Waterway may need to notify the Park and Recreation Commission' of their activities. For those land use activities that fall within the County's Deschutes River corridor as defined in Title 19 [footnote omitted], Chapter 22.22, Deschutes River Corridor Design Review Procedures applies and sets forth design review procedures. In addition to the County's procedures, a landowner would need to contact the Oregon Parks and Recreation Department for activities within '/a of a mile of the Scenic Waterway along the Deschutes River. The present request would not change the regulatory framework or requirements of the Deschutes River Corridor or State Scenic Waterway program. As discussed at the public hearing, that portion of the subject property along the north rim of tax lot 100 that is within the State Scenic Waterway is steep and unlikely to be developed in the future. Nevertheless, the applicant agrees to obtain any necessary State and County approvals in the future for land use activities which occur within the State Scenic Waterway or the Deschutes River corridor. 68 c. River Recreation Category. The section of the Middle Deschutes bordering the subject property is classified as 'Recreation River Area' which OAR 736-040-0072(4) describes the 'Recreational River Area' as follows (footnote omitted]: '(4) Recreational River Area: (a) From the norther Urban Growth Boundary of the City of Bend at approximately river mile 161 downstream to Tumalo State Park at approximately river mile 158, the river is classified as Recreational River Area,' Shown on Exhibit 29 submitted on September 18, 2016 is a portion of the Recreational River Area extending from the UGB to the applicant's surface mining property. This section of the river contains land zoned and developed to the SR 2 % density range, including a residential subdivision called Awbrey Meadows' abutting the subject property. Further, the uses allowed on either side of the Deschutes River within the Comprehensive Plan Urban Area Reserve boundaries include those permitted in the SR 2 Y2 , UAR-10, and Surface Mine (SM) and include for example, surface mining, churches, schools, landfills, fire stations, kennels, planned unit development, destination resorts, among others. The WTZ zone proposes a subset of these uses, not for more intensive uses, and therefore should have no impact on the river classification. The applicant is sensitive to the scenic values for that portion of the property along the Deschutes River. The topography along the rim of the property to the river is steep and future development will be planned in accordance with the Wildlife Plan submitted as Exhibit 12 to the application and in compliance with all applicable County and Oregon Scenic Waterway rules." The Hearings Officer finds Applicants' statement above is credible. The Hearings Officer finds that the County, in the DCC, did not identify or inventory any specific resources on the Subject Property. The Hearings Officer finds that the Subject Property is not adjacent to Tumalo State Park. The Hearings Officer finds that, if the application in this case were to be approved, the Deschutes River Corridor and/or State Scenic Waterway regulatory provisions would continue to apply to any actual development of the Subject Property. The Hearings Officer finds that Applicants' adequately addressed scenic and recreational resources related to the Deschutes River State Scenic Waterway. Applicants' Burden of Proof Statement also contained the following statements: "Goal 6, Air, Water and Land Resources Quality. No development is proposed with the plan and zone text amendment and zone change. Rezoning the property will not impact the quality of the air, water, and land resources. Future development will dispose of sewage waste via individual septic systems approved by Deschutes County. Goal 7, Areas Subject to Natural Disasters and Hazards. 69 The subject property is located in a known wildfire hazard area. Goal 8, Recreational Needs. The proposed text amendments and zone change do not directly impact the recreational needs of Deschutes County. In coordination with the Bend Parks and Recreation District, future development of the property will be planned to include trails, multi -use paths and pedestrian ways that connect to existing and proposed Bend Parks and Recreation property along its trail system, Tumolo Creek, and the Deschutes River. Goal 9, Economy of the State. This goal does not apply as the subject properties are not designated as Goal 9 economic development land and do not include a major industrial or commercial development. Future development of the properties, though, is likely to provide economic development opportunities related to the development and improvement of the properties. Goal 10, Housing. Rezoning the properties to Westside Transect Zone will offer a low density housing opportunity on the edge of the City, with resource and wildfire management responsibilities. Housing types within the City limits are built to urban standards. Housing types west of the subject property are built to rural standards. The zone change offers a transitional type of housing from the urban to rural areas, with decreasing density outward toward the park and public lands to the west. Goal 11, Public Facilities and Services. The first sentence of Goal 11 requires planning for a "timely, orderly and efficient arrangement of public facilities and services." The proposed text amendments and zone change will have no adverse effect on the provision of public facilities and services. As demonstrated by the submitted evidence, future development of the site will have adequate provisions to serve the low density residential development allowed by the Westside Transect Zone. The second sentence provides that "urban and rural development shall be guided by the types and levels of urban and rural public facilities appropriate for, but limited to, the needs and requirements of the urban, urbanizable, and rural areas to be served." The subject properties will be served by on-site septic systems and can be served by individual wells, municipal water service, or private water company. Water service by the City of Bend is desired to facilitate the wildfire prevention/protection plans for the property. However, the proposed density range is achievable with or without a community or municipal water system. The proposal is consistent with Goal 11 as it limits development within the Transect to low density which does not require urban public facility service. Goal 12, Transportation. 70 The findings of the transportation impact analysis demonstrate that rezoning the properties to Westside Transect Zone will not adversely impact transportation facilities. Since the proposed zone change and plan amendment comply with the Transportation System Planning rule, OAR -660-012-0060, the rule that implements Goal 12, compliance with that rule also demonstrates compliance with Goal 12. Goal 13, Energy Conservation. No development is proposed with the text amendments and zone change and, therefore, the proposal will not have an effect on energy conservation. Future development of the properties adjacent to the Bend City limits will afford orderly connections to existing streets and other utilities adjacent to the subject properties and conserve energy needed for residents to travel to work, shopping and other services. Goal 14, Urbanization. Goal 14 requires there be an "orderly and efficient transition from rural to urban land use" and prohibits the conversion of rural land to urban use. The Statewide Planning Goals contain no definition of urban or rural uses. They do contain the following definitions of rural and urban land: RURAL LAND. Rural lands are those which are outside the urban growth boundary and are: (a) Non -urban agricultural, forest or open space lands or, (b) Other lands suitable for sparse settlement, small farms or acreage homesites with no or hardly any public services, and which are not suitable, necessary or intended for urban use, URBAN LAND. Land inside an urban growth boundary. The meaning of these terms in the context of individual applications has been the subject of much case law discussion over the years. See, Jackson County Citizens League v. Jackson County, 38 Or LUBA 37, 48 (2000) (fn 12 for citations to over nineteen LUBA, Ct of Appeals and S.Ct cases interpreting Goal 14). The key case, 1000 Friends v. LCDC (Curry Co.), 301 Or. at 505 and those cases since Curry Co. make it clear that residential parcel sizes at either extreme are either clearly urban (half acre lots are urban) or clearly rural (10 acre lots are rural) but contain no bright line for anything in between. Id. According to the Courts, these decisions must be made on a case-by-case basis and LCDC clearly is not prepared to draw a line between urban and rural use based on parcel size alone. Additional considerations in the analysis include the necessity for the extension of public services such as sewer and water, the size, extent and intensity of any allowed commercial or industrial uses and whether the uses are appropriate for and limited to the needs and requirements of the local area to be served or whether it is likely to become a magnet for people outside the area. Id. (see cases cited in fn 35); 71 Kayne/DLCD v. Marion County, 23 Or LUBA 452, 462-64 (1992) (85 units dwelling units clustered on 72.5 acres with community septic system and water service district is urban), Hammock and Associates, Inc. v. Washington County, 16 Or LUBA 75, 80, aff'd 89 Or App 40, 747 P.2d 373 (1989), Grindstaff v. Curry Co., 15 Or LUBA 100 (1986) (declining to rule 1 acre lots are urban or rural as a matter of law), Schaffer v. Jackson Co., 16 Or LUBA 871 (1988) (declining to rule asphalt batch plant is urban or rural as a matter of law), 1000 Friends of Oregon v. Yomhill Co., 27 Or LUBA 508 (1994) (10 acre lots are rural but County must consider whether zoning allows urban level of development on smaller parcels), Metropolitan Service District v. Clackamas County, 2 Or LUBA 300, 307 (198 1) (declining to find 2 acre lot is urban or rural as a matter of law). In the present case, the subject properties do not constitute "Rural Land" within the meaning of Goal 14 as they do not meet the definition in the Statewide Planning Goals. However, the limited types and intensity of uses allowed within the proposed Transect Zone do not constitute urban levels of use. The residential density range is one unit per 2.5 to 10 acres, with a minimum lot size of 2.5 acres. This level of development does not require public sewer or water service as the parcel sizes are large enough to accommodate septic drain fields, reserve areas and on-site wells. The zone is designed to allow for low-density residential development with resource management corridors, vegetation management and wildfire prevention measures to protect the wildfire migration corridors and prevent the risk of wildfire spreading into the City from the public lands to the west. These objectives are not urban in nature but instead are a recognition of the unique resource values of the area. There are no commercial or industrial uses allowed in the zone, further establishing the lack of urban use. The only public uses allowed are those necessary to serve the surrounding community such as schools, park and utility facilities. Land divisions within the zone are subject to wildlife and wildfire mitigation plans developed specifically to recognize and protect the unique and specific resource and community values of these properties. Regardless of whether the subject properties are considered "rural" or something else, the proposal does not authorize urban uses and, in fact, implements Goal 14 by providing an appropriate transition from the urban uses to the east inside the UGB and the rural and public lands to the west. The Bend City Council adopted ordinances to expand the Urban Growth Boundary (UGB) by 2,380 acres in 2016. The expansion area included approximately 68 acres of the southern portion of the Coat's property and 69 acres of the Rio Lobo property (Exhibit 5). In order to effectuate the expansion, the County had to amend their Comprehensive Plan (Title 23) and the Bend Urban Growth Area Zoning (Title 19), which the Deschutes County Board of Commissioners unanimously adopted on September 28, 2016 (Exhibit 6). The State Department of Land Conservation and Development approved the Bend UGB expansion on November 14, 2016, which was not appealed. As a part of that process, the City specifically considered and chose to exclude the subject properties from the UGB expansion based on the 72 inefficiency of extending public services, capacity of transportation systems, the unique wildlife resource values and significant wildfire risk. The present proposal utilizes the findings adopted in the UGB process to provide a transition zone which protects the valuable resources, mitigates wildfire risk and limits uses to a type and intensity which do not significantly impact or require urban public services. The proposal protects the UGB boundary and allows the City to allocate scarce and costly public resources to those lands most efficiently and effectively urbanized. The proposed zone change will provide an orderly efficient transition between the urban uses in the. City of Bend and County rural lands west of the subject properties. The properties are not in the UGB and the proposal, at a density range of one unit per 2.5 to 10 acres do not promote the urbanization of rural land. The proposed density range is consistent with the acknowledged Comprehensive Plan designation of the Urban Area Reserve and retains a rural level of development. The underlying Comprehensive Plan designation for the subject properties will remain Urban Reserve Area." Staff, in the Staff Report, stated the following: "The very basis of requiring a Goal 14 Exception is that the applicants need to justify the reason for minimum lot sizes to be less than 10 acres. Since this area is undeveloped, the 10 -acre density should apply unless a Goal 14 Exception is approved. Allowing any urban reserve land to be re -designated to a 2.5 -acre density without a Goal 14 Exception severely compromises future urbanization. County staff agrees with the City of Bend and requests the Hearings Officer make specific findings for a Goal 14 Exception and to determine if the applicants have adequately met the standards for one." The Hearings Officer incorporates, as additional findings for this section, the findings for Section OAR 660-004-0040 - Application of Goal 14 for Rural Residential Areas. The Hearings Officer finds that a Goal 14 exception must be taken as part of this approval process. D. OREGON ADMINISTRATIVE RULES (OAR) - CHAPTER 660, LCDC - EXCEPTIONS FOR GOAL 3,4 AND 14 HEARINGS OFFICER'S NOTE: Applicants' provided proposed findings for exceptions to Goal 3, Goal 4 and Goal 14 (Applicants' Burden of Proof Statement pages 43-67). The Hearings Officer reviewed Applicants' proposed findings and includes them, in their entirety, below. The Hearings Officer finds the Applicants' proposed findings are adequate to meet the cited laws/rules for the taking of exceptions for Goal 3, Goal 4 and Goal 14. The Hearings Officer's only disagreement with Applicants' proposed findings is Applicants' assertion that exceptions are not required to be taken for Goal 3, Goal 4 or Goal 14. The Hearings Officer adopts Applicants' proposed findings, excepting for all references to that an exception is not required for Goal 3, Goal 4 or Goal 14 as additional findings for the Recommendations. 73 (Applicants' proposed exception findings follow) "APPLICABLE STANDARDS AND CRITERIA I. OAR 660-004-0018 PLANNING AND ZONING FOR EXCEPTION AREAS (4) "Reasons" Exceptions: (a) When a local government takes an exception under the "Reasons" section of ORS 197.732(1)(c) and OAR 660-004-0020 through 660-004-0022, plan and zone designations must limit the uses, density, public facilities and services, and activities to only those that are justified in the exception. RESPONSE: The applicants are requesting a "reasons exception" to Goals 3, 4 and 14 to allow the Westside Transect zoning designation to be applied to these properties. The Westside Transect Zone authorizes low density residential development with a density range of one unit per 2.5 to 10 acres, which is consistent with the density allowed on the subject properties in the 1980 Exceptions Statement. Under the criterion set forth above, a new exception is necessary if the Westside Transect Zone would alter the types or intensities of uses authorized under the prior exception creating the UAR designation. Within the UAR designated lands, the 1980 Exceptions Statement clearly authorized zoning categories of UAR-10, SR 2.5 and SM. The types and intensity of uses allowed in those zones include all of those Surface Mining uses listed under DCC 19.16.020 and 19.16.030 including mineral extraction, care taker residences, crushing and smeltering facilities and the sale of products from the sites. They also included all of the uses listed outright and conditionally in the SR 2.5 Zone at DCC 19.20.020 and 19.20.030 including single family dwellings at a density of 1 unit per 2.5 acres and planned unit developments which would allow clustering of dwelling units with lot sizes as small as 2 acres, as well as public and private schools, churches, cemeteries, lodge and fraternal organizations, timeshare units and commercial riding stables. In the UAR-10 Zone, the uses allowed outright and conditionally are listed at DCC 19.12.020 and 19.12.030 and include single- family dwellings at a density of 1 unit per 10 acres and which would allow clustering of dwelling units down to 2 acre lot sizes (see Tree Farm Decision, 247 -14 -000244 -CU, 247- 14 -000245 -TP); as well as day care facilities, dude or guest ranch, commercial riding stables, commercial livestock feeding yard, public and private schools, churches, cemeteries, community lodge and fraternal organizations, dog kennels, animal hospitals and time share units. The subject properties, as previously discussed, are designated Urban Reserve and zoned UAR-10 and SM, which include all of the uses described in those zoning categories above. The WTZ contains no commercial, industrial or urban levels of uses requiring public services. It is a low density, rural residential zoning category with limited public uses and zoning provisions supporting resource stewardship communities with a focus on wildlife 74 habitat protection and wildfire prevention, addressed in detail below. While the Urban Reserve plan designation has residential densities ranging from 2.5 to 10, the zoning on the subject properties is UAR-10 and SM. The SM Zone does not allow any residential uses but it does allow intensive mining and mining support uses. The UAR-10 Zone allows residential uses outright but limits density to 1 unit per 10 acres. The UAR-10 Zone allows cluster subdivisions with lot sizes as small as 2 acres. The proposed plan and zone designation will limit the uses, density, public facilities and services, and activities to only those that are justified in the exception. See the below discussion. (b) When a local government changes the types or intensities of uses or public facilities and services within an area approved as a "Reasons" exception, a new "Reasons" exception is required. RESPONSE: The 1980s Exception Statement and LCDC orders are not specific as to whether the Goal exceptions that were issued were committed exceptions or reasons exceptions. In this case, the argument for a new reasons exception would be that a change from a residential density of 1 unit per 10 acres under the present LIAR zoning (but with cluster subdivision lots as small as 2 acres) and no residential use under the SM zoning to 1 unit per 2.5 under the WTZ represents a change in uses (for SM) and intensity (for UAR-10) thereby requiring a new exception. Though we do not believe that the proposed changes in use warrant taking new exceptions, we make the case for new exceptions, below. II. CRITERIA FOR REASONS EXCEPTIONS A. Oregon Statewide Planning Goal 2, Part II PART II -- EXCEPTIONS A local government may adopt an exception to a goal when: (a) The land subject to the exception is physically developed to the extent that it is no longer available for uses allowed by the applicable goal, (b) The land subject to the exception is irrevocably committed to uses not allowed by the applicable goal because existing adjacent uses and other relevant factors make uses allowed by the applicable goal impracticable, or (c) The following standards are met. (1) Reasons justify why the state policy embodied in the applicable goals should not apply, (2) Areas which do not require a new exception cannot reasonably accommodate the use, (3) The long-term environmental, economic, social and energy consequences resulting from the use of the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the proposed site, and (4) The proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts. 75 The above are addressed through the OARS which implement the Goal and which are addressed below. B. OAR 660-004-020, Goal 2, Part II(c), Exception Requirements (1) If a jurisdiction determines there are reasons consistent with OAR 660-04-022 to use resource lands for uses not allowed by the applicable Goal, the justification shall be set forth in the comprehensive plan as an exception. RESPONSE: The proposal's consistency with OAR 660-004-0022 is set forth below. The applicants propose the following language to be included in the Comprehensive Plan at Chapter 5, Section 5.10 as discussed in Section IV hereof asjustification for the requested exception: Reasons exceptions to Goals 3, 4 and 14 are being taken to allow the application of the Westside Transect Zone to 717 acres of land on the west side of Bend between the urban area and the park and public lands to the west for the development of stewardship communities where low density residential communities are developed and managed to protect wildlife habitat and establish wildfire mitigation and prevention strategies. (2) The four factors of Goal 2 Part 11(c) required to be addressed when taking an exception to a Goal are: (a) Reasons justify why the state policy embodied in the applicable goals should not apply": The exception shall set forth the facts and assumptions used as the basis for determining that a state policy embodied in a goal should not apply to specific properties or situations including the amount of land for the use being planned and why the use requires a location on resource land: OAR 660-004-0022 Reasons Necessary to Justify an Exception Under Goal 2, Part II(c) (1) [,..] the reasons shall justify why the state policy embodied in the applicable goals should not apply. Such reasons include but are not limited to the following: (a) There is a demonstrated need for the proposed use or activity, based on one or more of the requirements of Goals 3 to 19, and either (A) A resource upon which the proposed use or activity is dependent can be reasonably obtained only at the proposed exception site and the use or activity requires a location near the resource. An exception based on this paragraph must include an analysis of the market area to be served by the proposed use or activity. That analysis must demonstrate that the proposed exception site is the only one 76 within that market area at which the resource depended upon can reasonably be obtained, or (B) The proposed use or activity has special features or qualities that necessitate its location on or near the proposed exception site. (2) Rural Residential Development. For rural residential development the reasons cannot be based on market demand for housing except as provided for in this section of this rule, assumed continuation of past urban and rural population distributions, or housing types and cost characteristics. A county must show why, based on the economic analysis in the plan, there are reasons for the type and density of housing planned that require this particular location on resource lands. A jurisdiction could justify an exception to allow residential development on resource land outside an urban growth boundary by determining that the rural location of the proposed residential development is necessary to satisfy the market demand for housing generated by existing or planned rural industrial, commercial, or other economic activity in the area. RESPONSE: The proposed WTZ is intended to create a transition zone in the urban/wildland interface which recognizes the unique geographic and physical characteristics of the area and utilizes the expertise of collaborating foresters and wildlife biologists to develop disaster resistant communities with resource management corridors for migrating wildlife. The zone has been carefully crafted to provide the orderly transition from urban to rural use and to respect the unique character of the area. 1. Basis for Determining State Policy Embodied in the Goals Should Not Apply. There is no basis for the applications of Goals 3 and 4 protections to either of the subject properties as described below. Historically, the properties have been included in the Bend Urban Area Reserve Boundary since at least 1969 before any of the Statewide Goals became effective. Subsequently, the properties were the subject of exceptions to Goals 3 and 4, which were acknowledged by LCDC in 1980 (and officially noticed by LCDC in the 2010 Remand Order and Director's Report). Further, the historical non-agricultural and non -forestry uses of the subject properties (including surface mining use, non- conforming commercial and industrial uses), as well as varying topography, the lack of irrigation water and delivery systems, poor soils and close proximity to urban development have all remain unchanged since the State's prior decision to approve Goal Exceptions to 3 and 4. 1980s Exceptions to Goal 3 and 4 77 When the City and County adopted the 1980s Goal Exceptions Statement, the City and County relied on the best available data at the time and concluded that the lands between the IUGB and the outer UGB to be "marginal resource lands" as stated below: The inventory of soil data indicates that most of the agriculture lands are Class Vl and are interspersed between lava ridges of scabland Class Vlll. The forest soils are site 6 except for a small area of 4 contained within the Tumalo Creek canyon which is Shevlin Park. The conclusion from this analysis is that these lands are marginal resource lands. Much of the land is surrounded by existing one to five acre subdivisions. These areas have been excepted in the Deschutes County Comprehensive Plan. The 1980 Bend Area General Plan map designates the subject properties as Open Lands with a subset of Agriculture or Open (see 1980 General Plan Map, Ord. 80-216, Exhibit 22). The Open Land section of the General Plan identifies 'three basic types, forests, urban area reserve, and areas of special interests - private and public open space.' The zoning for the properties in 1980 were Urban Area Reserve (UAR-10) and Surface Mining (SM). The 1980 General Plan describes most of the Urban Area Reserve lands as having "little or no agricultural value" while some of it "does have deeper soil than found elsewhere in the planning area and does have good future potential for urban development." The Forest designated lands in the 1980 Bend Area General Plan map do not include the subject properties. Further, the General Plan recognizes that "many areas of the west side have been mined and no longer have any forest potential." Goal 3 The state policy embodied in Goal 3, Agricultural Lands, is to preserve "Agricultural lands" for farm use, consistent with existing and future needs for agricultural products, forest and open space. "Agricultural land" in eastern Oregon is land of predominantly Class I through VI soils as identified in the Soil Capability Classification System of the U.S. Soil Conservation Service ("NRCS") and other lands which are suitable for farm use taking into consideration soil fertility, suitability for grazing, climatic conditions, existing and future availability of waterforfarm irrigation purposes, existing land -use patterns, technological and energy inputs required, or accepted farming practices. Evidence demonstrates that the North Property and South Property are not suitable for agricultural uses and little historical evidence of such use. North Property The majority of the soils at the North Property have been mined and developed for mining purposes since the early 1960s. While not a Goal 5 mining resource, the site 78 nevertheless is a resource akin to agricultural land where the mining resource is site specific. As shown in the table below and Exhibit 24, the North Property has eight soil - mapping units, none of which qualify as high-value farmland as that term is defined by Deschutes County Code, Chapter 18.04:9 g Deschutes County Code, Chapter 18.04 defines High-value farmland to mean: "High-value farmland" means land in a tract composed predominantly of the followingsoils when they are irrigated. Agency loam (2A and 2B), Agency sandy loam (IA), Agency -Madras complex (3B), Buckbert sandy loam (23A), Clinefalls sandy loam (26A), Clovkamp loamy sand (27A and 28A), Deschutes sandy loam (31A, 31B and 32A), Deschutes-Houstake complex (33B), Deskamp loamy sand (36A and 36B), Deskamp sandy loam (37B), Era sandy loam (44B and 45A), Houstake sandy loam (65A, 66A and 67A), Iris silt loam (68A), Lafollette sandy loam (71A and 71B), Madras loam (87A and 87B), Madras sandy loam (86A and 86B), Plainview sandy loam (98A and 98B), Redmond sandy loam (104A), Tetherow sandy loam (150A and 150B) and Tumalo sandy loam (152A and 152B). In addition to the above described land, high-value farmland includes tracts growing specified perennials as demonstrated by the most recent aerial photography of the Agricultural Stablization and Conservation Service of the United States Department of Agriculture taken prior to November 4, 1993. For purposes of this definition, "specified perennials" means perennials grown for market or research purposes including, but not limited to, nursery stock, berries, fruits, nuts, Christmas trees or vineyards but not including seed crops, hay, pasture or alfalfa. 79 Map Unit Legend Map Unit Map Unit Name Acres in AOI Percent of AOI Symbol 61 C Henkle-Fryrear-Lava 67.4 16.2% flows complex, 0 to 15 percent slopes 62D Henkle-Lava flows- 20.1 4.8% Fryrear complex, 15 to 50 percent slopes 72C Laidlaw sandy loam, 0 121.7 29.3% to 15 percent slopes 85A Lundgren sandy loam, 10.1 2.4% 0 to 3 percent slopes 101E Redcliff-Lickskillet-Rock 11.3 2.7% outcrop complex, 30 to 50 percent south slopes 106E Redslide-Lickskillet 15.1 3.6% complex, 30 to 50 percent north slopes 155D Wanoga sandy loam, 15 2.3 0.6% to 30 percent slopes 157C Wanoga-Fremkle-Rock 166.8 40.1% outcrop complex, 0 to 15 percent slopes W Water 0.6 0.1% --- Totals for Area of Interest 415.5 100.0%' Soil Capability Classification The irrigated and non -irrigated capabilities of the soils are provided below. The tables show the majority of the North Property consists of non -irrigated and irrigated capability classes of 6 or lesser quality. EY6] Non -irrigated Capability Class Map unit Map unit name Rating Acres in AOI Percent of AOI symbol 61 C Henkle-Fryrear-Lava flows' 7 67.4 16.2% complex, 0 to 15 62D Henkle-Lava flows- 7 20.1 4.8% l Fryrear complex, 15 to 72C Laidlaw sandy loam, 0 to 6 121.7 29.3% 15 percent slopes 85A Lundgren sandy loam, 0 6 10.1 2.4% to 3 percent slopes 101E Redcliff-Lickskillet-Rock 6 11.3 2.7% outcrop complex, 30 to 50 percent south slopes 106E Redslide-Lickskillet 6 15.1 3.6% complex, 30 to 50 percent north slopes 155D Wanoga sandy loam, 15 to', 6 2.3 0.6% 30 percent slopes 157C Wanoga-Fremkle-Rock 6 166.8 40.1% outcrop complex, 0 to 15 percent slopes W Water — 0.6 0.1% Totals for Area of Interest 415.5 100.0% The percentage of non -irrigated capability class 6 on the North Property is 78.7% and the percentage of soils with a capability rating of 7 is 21.3%. 81 Irrigated Capability Class Map unit Map unit name Rating Acres in AOI Percent of symbol AOI 61 C Henkle-Fryrear-Lava flows 7 67.4 16.2% complex, 0 to 15 percent slopes 62D Henkle-Lava flows- 7 20.1 4.8% Fryrear complex, 15 to 50 percent slopes I _ - 72C Laidlaw sandy loam, 0 to 4 121.7 29.3% 15 percent slopes 85A Lundgren sandy loam, 0 to 10.1 2.4% 3 percent slopes 101E Redcliff-Lickskillet-Rock 7 11.3 2.7% outcrop complex, 30 to 50 percent south slopes 106E Redslide-Lickskillet 7 15.1 3.6% complex, 30 to 50 155D Wanoga sandy loam, 15 to 6 2.3 0.6% 30 percent slopes 157C Wanoga-Fremkle-Rock 4 166.8 40.1% outcrop complex, 0 to 15 percent slopes W Water 0.6 0.1% Totals for Area of Interest 415.5 100.0% The percentage of irrigated capability class 6 or lesser quality on the North Property is 70% and the percentage of soils with a capability rating of 7 is 30%. Soil fertility and suitability for grazing While the NRCS soil maps indicate the subject property has about 79% non -irrigated capability Class 6 soils, the maps do not reflect the disturbances in the soils due to the 82 mining activities and the Awbrey-Hall fire. Historically, the portion of the North Property owned by Coats has been actively mined for aggregate, sand, and gravel. Starting around 1964, mining activities, including excavation, blasting, crushing, and screening of aggregate, sand, and gravel have occurred at the property. Truck traffic flows throughout the site from one end to another carrying large quantity of aggregate to be processed and sold. An asphalt batch plant, concrete washing area, an office, shop, and truck and storage shed, and a redi-mix operation standby to support the operations at the pit. Disturbances to the landscape and related mining noise are continuous and on-going to this day. A number of unimproved roads meander throughout the site and some areas of the property have been hobby farmed for pasture in the past. Family residences dot the landscape and portions of the property are actively managed for wildfire suppression. These activities have been historically documented in County land use files including file no. 247 -16 -000503 -AD. The Awbrey-Hall fire swept through a portion of the property clearing the ground from natural vegetation and burned hot enough that natural regeneration has not occurred. Topography of the site varies and with areas of steep slopes with rock outcrops as well as the mining walls created by the surface mining extraction. Denuded soil fertility and suitability for grazing is not possible without significant costs and artificial means to improve the property to levels of fertile agricultural soil and grazing purposes. Existing and future availability of water for farm irrigation purposes The property is not served by an irrigation district is not within an irrigation district boundary, and no irrigation canals, laterals or other water delivery systems area available to provide irrigation water. Existing land -use patterns Existing land use patterns in the North Property include urban development to the east and south and rural development to the north and west as described below. The area surrounding the North property consists of a mix of open space (parks), residential subdivisions, a golf course, surface mining, farm zoned parcels and undeveloped lands. A portion of the surrounding property is located within the city limits of Bend. Surrounding zoning in the vicinity of the subject property is a mixture of Exclusive Farm Use (EFU), Forest Use (F-2), Open Space and Conservation (OS&C), Rural Residential (RR10), Suburban Low Density Residential (SR2-1 /2), Surface Mining (SM), Urban Area Reserve (UAR-10), and the City of Bend's Residential Standard Density Zone (RS). For the North Property, the neighboring residential subdivisions include Awbrey Glen, Awbrey Meadows, Awbrey Ridge, Awbrey View, Awbrey Court, Cooperstone, 83 Fawnview, Klippel Acres (unrecorded subdivision), Marken Heights, Renaissance, Shevlin Estates, and Valhalla Heights. Two other properties zoned Surface Mine (SM) are located to the north. Shevlin Park is located to the west. Oregon State Parks and Recreation manages land to the north that is zoned farm use. Tumalo Creek and Shevlin Park Road are adjacent to the western and southern property boundaries, respectively. The North Property borders Shevlin Park and Tumalo Creek to the west. Land to the west of the park and creek are zoned for Forest Use (F-2). Technological and energy inputs required Given the historical mining use of the property and the lack of irrigation water for farm purposes, technological and energy inputs would be impractical and cost prohibitive to reach a level of productive fertile farm land. Accepted farming practices Nearby farmland zoned EFU is located north of the subject property. Portions of these EFU zoned lands, however, are properties not dedicated to farm uses and activities, including State-owned parkland and privately owned parcels that have received nonfarm partition and/or dwelling approvals. Across from Tumalo Creek and north of the property are EFU zoned parcels that are partially irrigated. Between these farm properties are lands zoned Surface Mining as well as State-owned parkland. In addition, steep canyon walls and Tumalo Creek intervene between the Coats property and the farmlands to the north. Conclusion Based on the above description, the North Property is not suitable for agricultural uses and has little historical evidence of such use. South Property The South Property is comprised of poor quality soils, has no access to irrigation water, is not in an irrigation district, and has no past history of agricultural use. The property has no water rights or past history of irrigation. The property is not served by an irrigation district and no irrigation canals, laterals or other water delivery systems are available to provide irrigation water. The property borders urban development within the City of Bend UGB to the north and east. The property borders Tumalo Creek and Shevlin Park to the west and the Tree Farm rural residential development, within Deschutes County, to the south. There are no agricultural uses or areas of EFU zoning occurring within the vicinity of the South Property. The closest EFU zoned parcel is located approximately 2.5 miles to the north of the South Property. As shown in the table below and Exhibit 25, the South Property has four soil -mapping units, none of which 84 qualify as high-value farmland as that term is defined by the Deschutes County Code, Chapter 18.04: Map Unit Legend Map Unit Map Unit Name Acres in AOI Percent of AOI Symbol 62D Henkle-Lava flows-Fryrear 5.6 1.8% complex, 15 to 50 percent ,slopes 72C 'Laidlaw sandy loam, 0 to 15 23.5 7.6% ;percent slopes 155D Wanoga sandy loam, 15 to 12.5 4.1% 30 percent slopes 157C Wanoga-Fremkle-Rock 256.6 86.5% ;outcrop complex, 0 to 15 jpercent slopes Totals for Area of Interest 307.2 100.0% Soil Capability Classification The irrigated and non -irrigated capabilities of the soils are provided below. The tables show the majority of the South Property consists of non -irrigated and irrigated capability classes of 6 or lesser quality. 85 Non -irrigated Capability Class Map unit Map unit name Rating Rating Acres in AOI Percent of AOI symbol 62D Henkle-Lava flows- 7 5.6 1.8% Fryrear complex, 15 62D Henkle-Lava flows- 7 5.6 1.8% Fryrear complex, 15 Laidlaw sandy loam, 0 4 23.5 7.6% to 50 percent slopes 155D 72C Laidlaw sandy loam, 0 12.5 6 1 23.5 7.6% to 15 percent slopes 157C Wanoga-Fremkle-Rock 4 155D Wanoga sandy loam, 15 6 12.5 4.1% to 30 percent slopes to 15 percent slopes 157C Wanoga-Fremkle-Rock 6 256.6 86.5% outcrop complex, 0 to 15 percent slopes Totals for Area of Interest 307.2 100.0% The percentage of non -irrigated capability class 6 on the South Property is 98.2% and the percentage of soils with a capability rating of 7 is 1.8%. Irrigated Capability Class Map unit Map unit name Rating Acres in AOI Percent of AOI symbol 62D Henkle-Lava flows- 7 5.6 1.8% Fryrear complex, 15 to 50 percent slopes 72C Laidlaw sandy loam, 0 4 23.5 7.6% to 15 percent slopes 155D Wanoga sandy loam, 15 6 12.5 4.1% to 30 percent slopes 157C Wanoga-Fremkle-Rock 4 256.6 86.5% outcrop complex, 0 to 15 percent slopes Totals for Area of Interest 307.2 100.0% 86 The percentage of irrigated capability class 6 or less on the South Property is 98.2% and the percentage of soils with a capability rating of 7 is 1.8%. Soil fertility and suitability for grazing While the NRCS soil maps indicate the subject property has about 98.2% non -irrigated capability Class 6 soils, the maps do not reflect the disturbances in the soils due to the Awbrey-Hall fire. The Awbrey-Hall fire swept through a portion of the property clearing the ground from natural vegetation, resulting in denuded soil fertility. Suitability for grazing is not possible without significant costs and artificial means to improve the property to levels of fertile agricultural soil and grazing purposes. Historically, the South Property has been utilized for non -conforming industrial uses, with no past history of agricultural use. A number of unimproved roads meander throughout the site. Topography of the site varies and with areas of steep slopes with rock outcrops. Existing and future availability of water for farm irrigation purposes The property is not served by an irrigation district, is not within an irrigation district boundary, and no irrigation canals, laterals or other water delivery systems area available to provide irrigation water. Existing land -use patterns Existing land use patterns in the South Property include urban development to the east and north, rural development to the south and public park use to the west as described below. The area surrounding the subject property consists of a mix of open space (parks), residential subdivisions and undeveloped lands. A portion of the surrounding property is located within the city limits of Bend. The South Property borders Shevlin Park and Tumalo Creek to the west. Areas of F-2 Forest Use zoning lie beyond Shevlin Park and Tumalo Creek to the west. Land to the north and east lies within the City of Bend UGB and is either developed or planned for future development at urban densities. The South Property borders the "Shevlin Commons" and "Three Pines" subdivisions, together with several parcels recently incorporated into the UGB. The eastern boundary of the subject property will border directly upon the planned extension of the Skyline Ranch collector roadway as it is developed to serve development on the west side of Bend. The southern end of the South Property borders directly upon the 2 -acre residential parcels that have been approved for development in connection with the "Miller Tree Farm" subdivision. The South Property is currently vacant and undeveloped. Technological and energy inputs required 87 Given the poor soils and the lack of irrigation water for farm purposes, technological and energy inputs would be impractical and cost prohibitive to reach a level of productive fertile farm land. Accepted farming practices The closest EFU zoned parcels lie 2.5 miles north of the South Property. Portions of these EFU zoned lands, however, are properties not dedicated to farm uses and activities, including state-owned parkland and privately owned parcels that have received nonfarm partition and/or dwelling approvals. Tumalo Creek, Shevlin Park, Johnson Road, surface mining uses on the North Property and a number of rural residential subdivisions separate the South Property from any ongoing agricultural uses in the area. Conclusion The South Property is comprised of poor quality soils, has no access to irrigation water and has no past history of agricultural use. The property has no water rights or past history of irrigation. The property is not served by an irrigation district and no irrigation canals, laterals or other water delivery systems are available to provide irrigation water. Based on the above description, the South Property is not suitable for agricultural uses and has never been utilized for such purposes. Goal 4 The state policy embodied in Goal 4, Forest Lands, is to preserve forest lands by maintaining the forest land base and to protect the state's forest economy by making possible economically efficient forest practices that assure the continuous growing and harvesting of forest tree species as the leading use on forest land consistent with sound management of soil, air, water and fish and wildlife resources and to provide for recreational opportunities and agriculture. OAR 660-015-0000(4). Forest lands are those lands acknowledged as forest lands as of the date of the adoption of Goal 4. Where a plan amendment involving forest lands is proposed, forest land includes lands which are suitable for commercial forest uses including adjacent or nearby lands which are necessaryto permit forest operations or practices and other forested lands that maintain soil, air, water and fish and wildlife resources. Soil Forest Productivity for the North and South Properties include: North Property The NRCS Forest Productivity data in the table below shows the majority of the North Property consists of soils with a forest productivity rating of 50 cubic ft./acre/year. According to the NRCS Description for Forest productivity, 'Forest productivity is the volume of wood fiber that is the yield likely to be produced by the most important tree species. This 88 number, expressed as cubic feet per acre per year and calculated at the age of culmination of the mean annual increment (CMAI), indicates the amount of fiber produced in a fully stocked, even -aged, unmanaged stand.' Forest Productivity (Cubic Feet per Acre per Year): ponderosa pine (Meyer 1961 (600)) Map unit Map unit name Rating Acres in AOI Percent of AOI symbol 61 C Henkle-Fryrear-Lava flows 50.00 67.4 i 16.2% complex, 0 to 15 percent slopes 62D Henkle-Lava flows- Fryrear 50.00 20.1 4.8% complex, 15 to 50 percent slopes 72C Laidlaw sandy loam, 0 to 53.00 121.7 29.3% 15 percent slopes 85A Lundgren sandy loam, 0 to 46.00 10.1 2.4% 3 percent slopes 101E Redcliff-Lickskillet-Rock 11.3 2.7% outcrop complex, 30 to 50 percent south slopes 106E Redslide-Lickskillet 15.1 3.6% complex, 30 to 50 percent north slopes 155D Wanoga sandy loam, 15 to 50.00 2.3 0.6% 30 percent slopes 157C Wanoga-Fremkle-Rock 50.00 166.8 40.1% outcrop complex, 0 to 15 percent slopes _ Water 0.6 0.1% Totals for Area of Interest 415.5 100.0% South Property The NRCS Forest Productivity data in the table below shows the majority of the South Property consists of soils with a forest productivity rating of 50 cubic ft./acre/year. According to the NRCS Description for Forest prod u ctivity, 'Forest productivity is the volume of wood fiber that is the yield likely to be produced by the most important tree species. This 89 number, expressed as cubic feet per acre per year and calculated at the age of culmination of the mean annual increment (CMAI), indicates the amount of fiber produced in a fully stocked, even -aged, unmanaged stand.' Forest Productivity (Cubic Feet per Acre per Year): ponderosa pine (Meyer 1961 (600)) Map unit Map unit name Rating Acres in AOI Percent of AOI symbol 62D Henkle-Lava flows- Fryrear 50.00 5.6 1.8% complex, 15 to 50 percent slopes 72C Laidlaw sandy loam, 0 to 15 53.00 23.5 7.6% percent slopes 155D ,Wanoga sandy loam, 15 to 30 50.00 12.5 4.1% percent slopes 157C ! Wanoga-Fremkle-Rock 50.00 265.6 86.5% outcrop complex, 0 to 15 percent slopes Totals for Area of Interest 307.2 100.0% Discussion: As noted above, the subject properties have not previously been zoned for forestry purposes. Historical mapping indicates the properties have been planned for the eventual inclusion within the Bend urban area since before the adoption of Goal 4 in 1974. There is no past history of forestry uses on either of the subject properties. The North Property has been previously utilized for surface mining and related uses. Portions of the South Property were previously utilized for non -conforming commercial and industrial uses (motorcycle track and testing, Hooker Creek administrative offices). The South Property burned extensively in the Awbrey Hall fire in 1990. The fire destroyed much of the existing tree cover from the South Property. The high temperatures associated with the Awbrey Hall fire adversely impacted soils in a manner that has prohibited the regeneration of Ponderosa Pine. See report from Singletree Enterprises dated December 19, 2017, attached as Exhibit 12 to the Applicant's initial Burden of Proof Statement. The proximity of the subject properties to Shevlin Park and the Tumalo Creek riparian corridor make them unsuitable for commercial forestry operations. In addition, the subject properties abut existing and planned areas of urban development, making them incompatible with accepted forest practices. a A prior exception to Goal 4 was taken in 1980 in connection with the acknowledgement of the City of Bend's dual UGB boundary. Based upon an inventory of soil data and forest productivity, an Exception Statement determined that forest soils were primarily site class 6, with the exception of a small area of more productive soils found within the boundary of Shevlin Park. The subject properties were characterized as "marginal resource lands" and were specifically exempted from the protections of Goal 4. As such, there is no basis for the application of Goal 4 protections to the subject properties. Goal 14 The state policy embodied in Goal 14, Urbanization, is to "provide for an orderly and efficient transition from rural to urban land use, to accommodate urban population and urban employment inside urban growth boundaries, to ensure efficient use of land, and to provide for livable communities." Land needed for urbanization must be based on the demonstrated need to accommodate long range urban population, consistent with a 20 - year population forecast and demonstrated need for housing, employment opportunities, livability or uses such as public facilities, streets and roads, schools, parks or open space, or any combination of these need categories. Goal 14 prohibits the conversion of rural land to urban uses without a goal exception. The present proposal to create the Westside Transect Zone would authorize limited, single family residential uses at a density range of 2.5 to 10 acres as a part of stewardship communities which are dedicated to developing and implementing long term, sustainable, funded programs for wildfire mitigation and wildlife habitat protection. There are no commercial or industrial uses authorized in the Westside Transect Zone. Any nonresidential uses are limited to public uses such as schools, and fire or utility stations to serve the area. The uses authorized in the Westside Transect Zone do not require the extension of or the provision of public, urban services. The proposed zone is intended to create a transition zone in the urban/wildland interface which recognizes the unique geographic and physical characteristics of the area and utilizes the expertise of collaborating foresters and wildlife biologists to develop disaster resistant communities with resource management corridors for migrating wildlife. The zone has been carefully crafted to provide the orderly transition from urban to rural use and to respect the unique character of the area. The meaning of "rural use" or "urban use" in the context of Goal 14 and individual land use applications has been the subject of much case law discussion over the years. See, Jackson County Citizens League v. Jackson County, 38 Or LUBA 37, 48 (2000) (fn 12 for citations to over nineteen LUBA, Ct of Appeals and S.Ct cases interpreting Goal 14). The key case, 1000 Friends v. LCDC (Curry Co.), 301 Or. at 505 and those cases since Curry Co. make it clear that residential parcel sizes at either extreme are either clearly urban (half acre lots are urban) or clearly rural (10 acre lots are rural) but contain no bright line for 91 anything in between. Id. According to the Courts, these decisions must be made on a case-by-case basis and LCDC clearly is not prepared to draw a line between urban and rural use based on parcel size alone. Additional considerations in the analysis include the necessity for the extension of public services such as sewer and water, the size, extent and intensity of any allowed commercial or industrial uses and whether the uses are appropriate for and limited to the needs and requirements of the local area to be served or whether it is likely to become a magnet for people outside the area. Id. (see cases cited in fn 35); Kayne/DLCD v. Marion County, 23 Or LUBA 452, 462-64 (1992) (85 units dwelling units clustered on 72.5 acres with community septic system and water service district is urban); Hammock and Associates, Inc. v. Washington County, 16 Or LUBA 75, 80, aff'd 89 Or App 40, 747 P.2d 373 (1989); Grindstaff v. Curry Co., 15 Or LUBA 100 (1986) (declining to rule 1 acre lots are urban or rural as a matter of law); Schaffer v.,Jackson Co., 16 Or LUBA 871 (1988) (declining to rule asphalt batch plant is urban or rural as a matter of law); 1000 Friends of Oregon v. Vamhill Co., 27 Or LUBA 508 (1994) (10 acre lots are rural but County must consider whether zoning allows urban level of development on smaller parcels); Metropolitan Service District v. Clackamas County, 2 Or LUBA 300, 307 (1981) (declining to find 2 acre lot is urban or rural as a matter of law). In the present case, the subject properties have been slated for urban development for over 30 years. The present proposal to apply the Westside Transect Zone to these lands would result in them being developed at a much lower density (2.5 acre minimum) than if they were urbanized (RS zone at 7-11 units per acre) but at a higher density than currently zoned (UAR-10 at one unit per 10 acres). The limited types and intensity of uses allowed within the proposed Westside Transect Zone do not constitute urban levels of use. The residential density range of one unit per 2.5 to 10 acres, does not require public sewer or water service as the parcel sizes are large enough to accommodate septic drain fields, reserve areas and on-site wells. The zone is designed to allow for low-density residential development with resource management corridors, vegetation management and wildfire prevention measures to protect the wildfire migration corridors and prevent the risk of wildfire spreading into the City from the public lands to the west. These objectives are not urban in nature but instead are a recognition of the unique resource values of the area. There are no commercial or industrial uses allowed in the zone, further establishing the lack of urban use. The only public uses allowed are those necessary to serve the surrounding community such as schools, park and utility facilities. Land divisions within the zone are subject to wildlife and wildfire mitigation plans developed specifically to recognize and protect the unique and specific resource and community values of these properties. The proposal complies with Goal 14 by providing an appropriate transition from the urban uses to the east inside the UGB and the rural and public lands to the west. The present proposal respects the findings adopted in the City's most recent UGB process: 92 Transect This typology provides a transitional residential development pattern from urban to rural using a variety of housing types integrated with the surrounding natural landscape to minimize the impact on sensitive eco -systems, wildlife and to reduce the risk of wildfire. It utilizes the evidence gathered during that process to provide a transition zone which protects the valuable resources, mitigates wildfire risk and limits uses to a type and intensity which do not significantly impact or require urban public services. The proposal helps protect the UGB boundary from fire and allows the City to allocate scarce and costly public resources to those lands most efficiently and effectively urbanized. The proposed zone change will provide an orderly efficient transition between the urban uses in the City of Bend and County rural lands west of the subject properties. The properties are not in the UGB and the proposal, at a density range of one unit per 2.5 to 10 acres do not promote the urbanization of rural land. The proposed density range is consistent with the acknowledged Comprehensive Plan designation of the Urban Area Reserve and retains a rural level of development. The underlying Comprehensive Plan designation for the subject properties will remain Urban Reserve Area. 2. The Amount of Land Required for the Use Being Planned. The North and South properties combined total 717 acres and consist of the remaining UAR designated properties located on the west side of Bend between the urban area and the vast public and park lands to the west. The amount of land is determined by the geographical boundaries of the Tumalo Creek, Shevlin Park, the historical zoning designations and the surrounding development patterns. 3. Why the Use Requires a Location on Resource Land. As discussed, it is not clear the subject properties were ever zoned for resource use as they have been slated for eventual urban development since prior to the adoption of the Statewide Planning Goals. However, the use planned is site specific as it is designed specifically for the geographic characteristics and physical location of these properties as the wildlife and wildfire interface between the City's urban edge and the park and public lands to the west. (b) Areas which do not require a new exception cannot reasonably accommodate the use; 93 (A) The exception shall indicate on a map or otherwise describe the location of possible alternative areas considered for the use, which do not require a new exception. The area for which the exception is taken shall be identified; RESPONSE: If areas designated UAR and SM, like the subject properties, require a new exception under the theories set forth herein, then the only lands which would not require a new exception would be lands zoned SR 2.5 or lands within Bend's UGB. 1. SR 2.5 Land. As shown on the County zoning map, the only lands zoned SR 2.5 are a 30 acre area adjacent to the Awbrey Glen subdivision and golf course and several smaller heavily parcelized areas scattered along the eastern and southern edge of the UGB. These areas are not physically or geographically located in the urban/wildfire/wildlife interface area on the west side of Bend - between its urban area and the public lands to the west. The proposed use is to create a zone which will allow for the development of residential stewardship communities designed to develop and implement long term, sustainable programs to protect wildlife habitat and prevent or reduce the severity of damage from the spread of wildfire. The need for the urban/wildland interface area is well documented in Bend and Deschutes County's historical documents and efforts to protect the deer winter migration corridors and to prevent the spread of wildfire arising from the west and spreading with the prevailing winds into Bend. The subject properties are uniquely located to meet this need and the Westside Transect Zone has been developed in coordination with foresters and wildlife biologists after careful study of the specific areas. 2. Property Within Urban Growth Boundary. The property located within Bend's UGB is the only other land not requiring an exception. This land cannot reasonably accommodate the use as it is slated for urban development and is the land providing the urban edge between which the subject properties are sandwiched with the public lands to the west. (R) To show why the particular site is justified, it is necessary to discuss why other areas which do not require a new exception cannot reasonably accommodate the proposed use. Economic factors can be considered along with other relevant factors in determining that the use cannot reasonably be accommodated in other areas. Under the alternative factor the following questions shall be addressed: (i) Can the proposed use be reasonably accommodated on nonresource land that would not require an exception, including increasing the density of uses on nonresource land? If not, why not? 94 RESPONSE: The only non -resource land not requiring an exception would be land zoned SR 2.5. The small areas of SR 2.5 lands are not geographically or physically located along the western edge of the City and the public land to the west, which is the urban/wildland interface area proposed for the stewardship communities containing wildfire prevention and wildlife habitat protection programs. (ii) Can the proposed use be reasonably accommodated on resource land that is already irrevocably committed to nonresource uses, not allowed by the applicable Goal, including resource land in existing rural centers, or by increasing the density of uses on committed lands? If not, why not? RESPONSE: The use is geographically and physically specific to the location of the subject properties between the west edge of the City and the public lands further west. There are no resource or other lands which are in this location and can provide the wildland urban interface for Bend's west side. (iii) Can the proposed use be reasonably accommodated inside an urban growth boundary? If not, why not? RESPONSE: The proposed use is an interface area between the urban area and the public lands to the west, designated as a stewardship community to provide long term, sustainable wildfire mitigation and wildlife habitat protection programs. Lands inside the UGB which are planned, zoned and needed for urban development cannot accommodate this use. Their density of development does not work as a wildland fire interface. (iv) Can the proposed use be reasonably accommodated without the provision of a proposed public facility or service? If not, why not? RESPONSE: No public facilities or services are necessary to accommodate the use. This criterion is not applicable. (C) The alternative areas standard can be met by a broad review of similar types of areas rather than a review of specific alternative sites. Initially, a local government adopting an exception need assess only whether those similar types of areas in the vicinity could not reasonably accommodate the proposed use. Site specific comparisons are not required of a local government taking an exception, unless another party to the local proceeding can describe why there are specific sites that can more reasonably accommodate the proposed use. A detailed evaluation of specific alternative sites is thus not required unless such sites are specifically described with facts to support to support the assertion that the sites are more reasonable by another party during the local exceptions proceeding. 95 RESPONSE: The alternative areas analysis set forth above demonstrates there are no other non -resource, resource or exception areas appropriate for the proposed use. This use is site specific to the west side of Bend to address long standing and historically documented community concerns about wildfire risk and deer winter range migration corridors in this urban/wildland interface area. c) The long-term environmental, economic, social and energy consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in other areas requiring a Goal exception. The exception shall describe the characteristics of each alternative areas considered by the jurisdiction for which an exception might be taken, the typical advantages and disadvantages of using the area for a use not allowed by the Goal, and the typical positive and negative consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts. A detailed evaluation of specific alternative sites is not required unless such sites are specifically described with facts to support the assertion that the sites have significantly fewer adverse impacts during the local exceptions proceeding. The exception shall include the reasons why the consequences of the use at the chosen site are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the proposed site. Such reasons shall include but are not limited to, the facts used to determine which resource land is least productive; the ability to sustain resource uses near the proposed use; and the long-term economic impact on the general area caused by irreversible removal of the land from the resource base. Other possible impacts include the effects of the proposed use on the water table, on the costs of improving roads and on the costs to special service districts; RESPONSE: The above criteria contemplates a comparison of the long-term environmental, economic, social and energy ("ESEE") consequences of the applicants' proposed use with alternative locations that would also require a goal exception. The rule requires a determination that the ESEE consequences of the proposed use "are not significantly more adverse than would typically result from the same proposal being located in other areas requiring a Goal exception." In this case, the applicants' proposal is based entirely upon the specific location and characteristics of the subject properties. As demonstrated above, there are no alternative locations that could serve the needs and objectives of the WTZ. The WTZ authorizes low density residential housing in specific locations that lie between urban development (to the east) and Shevlin Park and the Tumalo Creek corridor (to the west). The applicants seek to develop stewardship communities that will preserve important areas of wildlife habitat, minimize impacts on surrounding park property and natural areas and provide additional forest fire protections for the subject and surrounding properties. 96 The following provides an analysis of the ESEE consequences associated with the applicants' proposal. This analysis provides a comparison of the ESEE consequences of the proposed WTZ with the specific land uses authorized under current zoning and the potential for future inclusion of such properties into the City of Bend, UGB. The subject properties are currently zoned as Urban Area Reserve (UAR-10) and are planned for eventual incorporation into the UGB. UAR-10 zoning rules authorize the development of single family residences with a density of one -unit per ten acres. County planned and cluster development and state administrative rules (DCC 19.12.030N, 19.100 and OAR 660-004-0040) would authorize the clustering of two -acre residential lots, with areas of open space retained until such future time as incorporated into the UGB. Development under this scenario would result in the clustering of two -acre residential lots immediately adjacent to the Shevlin Park boundary, with areas of dedicated open space adjacent to the urban area retained for future urban development. Development activities adjacent to the park boundary would not be subject to the extensive wildlife and fire protections contemplated in the WTZ, creating more significant ESEE consequences as outlined in detail below. 1. Environmental. Adoption of the WTZ and its associated wildlife protection and fire suppression standards will provide a significant overall net environmental benefit. Proposed WTZ development standards will maintain critical areas of wildlife habitat and preserve existing deer and elk migration corridors along the Tumalo Creek corridor. Future residential landowners will be required to maintain their individual lots in a manner that is compatible with both the protection of existing wildlife habitat and the suppression of fire. Individual structures erected within the WTZ must comply with national fire protection standards, with lot owners required to maintain fire protection buffers around all buildings and home sites. The fire management prescriptions of the WTZ are expected to significantly reduce the threat of a wildfire spreading from the forested lands to the west into the City of Bend. Adoption of the WTZ significantly reduces or ameliorates the overall environmental impacts of developing the subject properties and substantially benefits environmental qualities on adjoining lands. In contrast, development of the subject properties under existing UAR-10 zoning rules would not provide the environmental benefits associated with the WTZ. Smaller residential lots could be clustered along the Sheviin Park boundary, without any protection provided for existing wildlife habitat and migration corridors. The subject properties are not governed by the Deschutes County, Wildlife Area (WA) combining zone and the code provides minimal protections to important areas of wildlife habitat. Development would not be governed by the fire fuels management and structural building standards outlined under the WTZ. This would significantly increase the risk of the spread of wildfire to the detriment of surrounding properties and the City of Bend. 97 2. Economic. Development of the subject properties would provide more favorable economic consequences under the proposed WTZ standards. The WTZ would authorize additional single family residential units with areas of wildlife habitat preserved in perpetuity. The property would be subject to stringent wildfire management and fire code building standards that provide a continued economic benefit to surrounding properties, Deschutes County and the City of Bend. The creation of an intensively managed fire protection barrier in this area of Deschutes County will provide an additional safeguard against the growing threat of wildfire originating on heavily forested lands located to the west. The escalating costs of wildfire suppression have a significant and detrimental economic impact on Deschutes County and the Central Oregon region. The WTZ is strategically located in an area that can be effectively managed to help prevent the spread of wildfire into more heavily populated urban areas within the City of Bend. 3. Social. Adoption of the WTZ and its associated wildlife and fire protection standards will provide an overall net social benefit for area residents. The wildlife protections of the WTZ will preserve important areas of wildlife habitat and associated migration corridors for the benefit of current and future county residents. WTZ development standards will minimize the impacts of future residential development on public use areas within Shevlin Park. Future residential development will be buffered from the park, preserving the natural values of this important public resource. Extensive fire management activity within the WTZ will work to prevent the spread of wildfire. 4. Energy. The fire management standards of the WTZ will provide an energy benefit to Deschutes County and the Central Oregon region. Extensive and ongoing fire management activity on the subject properties will provide additional protections from the spread of wildfire from heavily forested areas to the west. The long term implementation of fire fuels reduction activities within the WTZ will reduce energy costs for the benefit of Deschutes County and the region. (d) The proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts. The exception shall describe how the proposed use will be rendered compatible with adjacent land uses. The exception shall demonstrate that the proposed use is situated in such a manner as to be compatible with surrounding natural resource and resource management or production practices. "Compatible" is not intended as an absolute term meaning no interference or adverse impacts of any type with adjacent uses. RESPONSE: The proposed use has been designed in a manner that is entirely compatible with adjacent land uses. The low density residential development authorized in the WTZ will minimize the potential for conflicts with both urban uses within the City of Bend and the natural resource values of Shevlin Park and Tumalo Creek to the west. Individual residential home sites within the WTZ will be buffered from the park boundary and 98 Shevlin Park. The WTZ will be managed under stringent wildlife habitat protection standards that are designed to facilitate the movement and migration of deer and elk through the Tumalo Creek corridor. The property will also be governed by rigorous hazardous fuel reduction standards that have been formulated to protect the subject and surrounding properties from the risk and spread of wildfire. Any development and construction within the WTZ will be subject to national fire protection standards. Implementation of the WTZ on the subject properties is compatible with adjacent land uses as described in further detail below: North Property. Existing development in the vicinity of the North Property includes urban residential neighborhoods (including a golf course) that abut the property to the east and south. Development to the west consists of rural residential neighborhoods to the west of Tumalo Creek and Shevlin Park. The varied topography of the North Property provides geographic isolation of the parcel from the surrounding properties. The low density residential development and wildlife and wildfire corridors contemplated by the WTZ will provide a significant buffer between developed home sites and any surrounding properties. Any future development of the property will be governed by the Wildlife Habitat and Forest Health Management Plan attached as Exhibit 12 to the applicant's initial Burden of Proof Statement. The plans identified herein will insure the property is developed in a manner that is compatible with surrounding natural resources. South Property The South Property borders lands zoned for urban development to the north and east. The existing Shevlin Commons development borders the property directly to the north. Platted rural residential lots (2 -acres in size) abut the property to the south. Shevlin Park and Tumalo Creek border the property to the west, where no development (other than public park uses) is contemplated or authorized. As a condition of development approval, the applicant is prepared to dedicate a 50 -acre "Conservation Area" immediately adjacent to its boundary with Shevlin Park. The Conservation Area will be managed under the terms of a conservation easement that will protect and preserve areas of wildlife habitat. In addition, the applicant intends to create an additional 30 -acre "No -Build Area" immediately east of the Conservation Area. The "No -Build Area" will be part of individual lots but no structures will be permitted and the area will be managed primarily for fire protection purposes. The protection of these two areas (located along the western boundary of the South Property) will insure that management of the WTZ is compatible with Shevlin Park. The planned Conservation Area and No Build Area will work to insure that residential development within the WTZ is not visible from Tumalo Creek. The joint management of such areas will provide additional protections for the natural resource and public values of Shevlin Park. Fire management standards within the WTZ will provide a benefit to the residential development to the north, south and east. A portion of the planned No -Build Area will 99 provide an additional fire protection buffer between the Shevlin Commons development and the South Property. The low density residential development standards within the WTZ will be entirely compatible with the size and configuration of lots within the adjacent Tree Farm residential development. Substantial topography (rock outcroppings and a steep ridge line) will separate the South Property from planned urban development to the east. III. ADDITIONAL CRITERIA FOR A REASONS EXCEPTION TO GOAL 14 OAR 660-014-0040 Establishment of New Urban Development on Undeveloped Rural Lands (1) As used in this rule, "undeveloped rural land" includes all land outside of acknowledged urban growth boundaries except for rural areas committed to urban development. This definition includes all resource and nonresource lands outside of urban growth boundaries. It also includes those lands subject to built and committed exceptions to Goals 3 or 4 but not developed at urban density or committed to urban level development. (2) A county can justify an exception to Goal 14 to allow establishment of new urban development on undeveloped rural land. Reasons that can justify why the policies in Goals 3, 4, 11 and 14 should not apply can include but are not limited to findings that an urban population and urban levels of facilities and services are necessary to support an economic activity that is dependent upon an adjacent or nearby natural resource. (3) To approve an exception under section (2) of this rule, a county must also show: (a) That Goal 2, Part II (c)(1) and (c)(2) are met by showing that the proposed urban development cannot be reasonably accommodated in or through expansion of existing urban growth boundaries or by intensification of development in existing rural communities; (b) That Goal 2, Part II (c)(3) is met by showing that the long-term environmental, economic, social and energy consequences resulting from urban development at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located on other undeveloped rural lands, considering: (A) Whether the amount of land included within the boundaries of the proposed urban development is appropriate, and (B) Whether urban development is limited by the air, water, energy and land resources at or available to the proposed site, and whether urban development at the proposed site will adversely affect the air, water, energy and land resources of the surrounding area. 100 (c) That Goal 2, Part 11(c)(4) is met by showing that the proposed urban uses are compatible with adjacent uses or will be so rendered through measures designed to reduce adverse impacts considering: (A) Whether urban development at the proposed site detracts from the ability of existing cities and service districts to provide services; and (B) Whether the potential for continued resource management of land at present levels surrounding and nearby the site proposed for urban development is assured. (d) That an appropriate level of public facilities and services are likely to be provided in a timely and efficient manner; and (e) That establishment of an urban growth boundary for a newly incorporated city or establishment of new urban development on undeveloped rural land is coordinated with comprehensive plans of affected jurisdictions and consistent with plans that control the area proposed for new urban development. RESPONSE: As discussed more fully herein, the proposed use is locationally dependent as it involves the establishment of stewardship communities to provide long term, stable funding and management of the sensitive lands located on the west side of Bend between the urban area and the park and public forested lands to the west. It would be impractical to expand the UGB to accommodate the use, as it is low density and focused on management of a residential community with wildlife habitat protection and wildfire mitigation programs. The uses are rural in nature and do not require the extension of urban services or infrastructure. Furthermore, the subject properties do not meet the definition of "Rural Land"10 in the definitions section of the Statewide Planning Goals because they have been planned and zoned for urban use for more than 30 years. The uses allowed in the WTZ do not require the extension of urban services or involve urban levels of density. As discussed, the WTZ proposal is site specific to the properties' geographic location on the west side of Bend between the urban area and the public and park lands to the west. The proposal to develop these lands with low density residential stewardship communities is consistent with the urbanization policies for the City and with the rural development and resource management policies of the County. The proposal furthers the City's most recent UGB decision not to include the subject properties in the UGB as the use of scarce public dollars to extend urban infrastructure can be more efficiently accomplished with lands 10 RURAL LAND. Land outside urban growth boundaries that is: (a) Non -urban agricultural, forest or open space; (b) Suitable for sparse settlement, small farms or acreage homesites with no or minimal public services, and not suitable, necessary or intended for urban use, or (c) In an unincorporated community. 101 located south and east of the City. The proposal is also consistent with County density ranges and resource management policies for deer winter range and wildfire prevention, mitigation strategies. The applicants are coordinating with the County and the City of Bend to insure adequate services are available for the proposal and will continue to work on transportation studies and development agreements with the affected jurisdictions to insure impacts from the proposal are adequately addressed and mitigated." Hearings Officer Note: This concludes the Applicants' proposed findings for Goal 3, Goal 4 and Goal 14 exceptions. What follows are the Hearings Officer's findings related to the adequacy of Applicants' proposed findings for Goal 3, Goal and Goal 14 exceptions. Findings. The Hearings Officer reviewed Applicants' proposed findings for Goal 3, Goal 4 and Goal 14. In summary, the Hearings Officer agreed generally with Applicants proposed findings in support of exceptions to Goal 3, Goal 4 and Goal 14. The single area that the Hearings Officer does not agree with Applicants' proposed findings are those attempting to justify that a Goal 14 exception is not required. The Hearings Officer, therefore, found it appropriate to adopt Applicants' proposed findings (not including Applicants proposed findings related to its contention that a Goal 14 exception is not required) in support of exceptions to Goal 3, Goal 4 and Goal 14. The Hearings Officer sets forth additional findings, below, related to the Goal exception process. The Hearings Officer finds the Applicants must demonstrate or explain: (1) the basis for determining that state policy embodied in the applicable goals should not apply; (2) the amount of land that is required for the use being planned; and (3) why the use requires a location on resource land. Each of these factors is addressed separately in the findings below. Basis for Determining State Policy Embodied in the Goals Should Not Apply: The Subject Property was under the jurisdiction of the Bend Area General Plan until the 2016 amendment to the Bend Urban Growth Boundary. Staff acknowledged and the Hearings Officer agreed the evidence shows that the area has been slated for eventual urbanization for decades. The City and Staff agreed that the Subject Property was not zoned SR 2.5 (2.5 -acre minimum lot size) because the Subject Property was not parcelized at the time of taking the 1980 Exception Statement. The Hearings Officer, as noted in findings earlier in the Recommendations, finds that the 1980 Exception Statement applied to the Subject Property. The Hearings Officer finds that evidence in the record indicated that the Subject Property (based upon the 1980 Exception Statement) was considered "marginal resource land." The Hearings Officer finds that the proposed minimum lot size of 2.5 acres represents a change from the 10 -acre minimum lot size set forth in the 1980 Exception Statement (and currently zoned). Staff agreed with the WIN City and requested that the Hearings Officer make specific findings for a Goal 3, 4 and 14 Exception and to determine if Applicants adequately met the standards for exceptions to Goal 3, 4 and 14. The Hearings Officer determined, based upon the evidence in the record, that a "new" exception was required for Goals 3 and 4 and an exception is also required for Goal 14. The Hearings Officer adopts Applicants evidence and argument related to the basis for determining the state policies Goals 3, 4 and 14 should not apply. 2. The Amount of Land Required for the Use Being Planned: Applicants did not submit a proposal for a specific use of the Subject Property and did not provide a potential subdivision design. If the application in this case is approved all uses allowed in the WTZ zone will be available on the Subject Property. Applicants proposed the following findings: "The North and South properties combined total 717 acres and consist of the remaining UAR designated properties located on the west side of Bend between the urban area and the vast public and park lands to the west. The amount of land is determined by the geographical boundaries of the Tumolo Creek, Shevlin Park, the historical zoning designations and the surrounding development patterns." Staff expressed uncertainty as to how to determine the appropriate amount of area to be rezoned when there is no specific proposed use and requests that the Hearings Officer make specific findings on this issue. Applicants argued, and the Hearings Officer agrees, the amount of land is dictated by the geographic location of these properties between the edge of the City and the forested and public lands to the west. The proposed "use" is the rezoning to the WTZ, which allows low density residential uses and supporting public uses such as parks, utility facilities and churches. There are no commercial, industrial or intensive recreational uses allowed. Based on the evidence in the record, the Hearings Officer finds the amount of land is geographically distinct and appropriate for the proposal. 3. Why the Use Requires a Location on Resource Land: Applicants proposed the following findings: "The evidence in the record shows the subject properties are not, and have never been, designated as resource land. Staff finds and the Hearings Officer agrees the applicants have provided sufficient evidence the subject properties have been slated for eventual urban development since prior to the adoption of the Statewide Planning Goals. Thus, the subject properties are not considered 'resource land—. The Hearings Officer finds the Subject Property was described as "marginal resource land" in the 1980 Exception Statement. However, with that said, the Hearings Officer believes that for the purposes of seeking an exception to Goals 3 (agricultural) and 4 (forest) that 103 Applicants' have provided substantial evidence that the Subject Property is not currently resource land. The Hearings Officer finds there is evidence in the record that the Subject Property is not, and has not for an extended time, been used for agricultural or forest purposes. The Hearings Officer finds there is evidence in the record that the geography and soils at the Subject Property are not conducive to the conduct of agricultural or forest uses. The Hearings Officer finds there is no evidence in the record that the Subject Property was ever designated as a natural resource site (Goal 5). Staff recognized the unique and important location of the Subject Property but asked, "why can't the properties be developed under their current zoning, i.e., UAR-10 and SM, with developer -initiated requirements for uses that address wildlife habitat protection and wildfire mitigation?" Staff asked the Hearings Officer to make findings on whether the Applicants' responses to this question were adequate. Applicants argued, and the Hearings Officer agreed, that the only areas which do not require a new exception are those already zoned SR 2.5 or lands within Bend's UGB. The lands within the UGB are not eligible for such low density as they are needed for urbanization to meet the City's housing obligations under the Statewide Planning Goals. As shown on the maps in the record, the only vacant SR 2.5 lands in this general area are the 30 acres to the south of the North Transect area. These lands are not in the specific geographic location which could be developed to provide the necessary wildlife corridors and fire break needed on the west side between the City and the forested lands to the west. The Hearings Officer finds the need for the urban/wildland interface area is well documented in Bend and Deschutes County's historical documents. The Hearings Officer finds the proposed WTZ zone has, as a primary goal, the protection of deer winter migration corridors and the prevention of the spread of wildfire arising from the west and spreading with the prevailing winds into Bend. The Subject Property is uniquely located to meet this need and the Westside Transect Zone has been developed in coordination with foresters and wildlife biologists after careful study of the specific areas. The Hearings Officer finds Applicants adequately demonstrated why the particular site is justified. As mentioned above, Applicants argued that the proposed use of the Subject Property was tailored to the west side of Bend to address concerns of wildfire and protection of wildlife habitat. Applicants conducted a broad review of the alternative areas to demonstrate there are no other non -resource, resource or exception areas appropriate for the proposed use. This use is site specific to the west side of Bend and addresses long standing and historically documented community concerns about wildfire risk and deer winter range migration corridors in this urban/wildland interface area. The Hearings Officer finds that Applicants' evidence and arguments sufficiently demonstrated why there are no alternative areas which could reasonably accommodate the proposal. 104 Applicant provided evidence and argument related to the long-term environmental, economic, social and energy (ESEE) consequences of the proposal as compared with alternative locations that would also require a goal exception. The Hearings Officer finds the Subject Property, and this proposal, is unique in that Applicants have created a proposed zoning district that takes into account the characteristics of the Subject Property, the urban area to the east, the rural area to the west and the existence of the adjacent park and creek. Essentially, Applicants created a zone that is similar to the SR 2.5 Zone but tailored to the Subject Property and environs. The Hearings Officer finds the proposed zone is specific to the characteristics of the Subject Property and there are no other alternative locations that could serve the purpose of the WTZ. Staff asked the Hearings Officer to determine if Applicants have adequately addressed the requirements related to ESEE. Based on the analysis set forth above, the Hearings Officer finds the long term environmental, economic, social and energy consequences of the proposal will not be significantly more adverse than would typically result from the proposal being located in areas requiring a goal exception other than the proposed site. In fact, the Hearings Officer finds the long term environmental, energy, social and economic consequences of the proposal will be positive and will result in a better, more sustainable and more environmentally protective than locating this proposal in another area which does not have the documented history of a wildlife corridor which needs consistent, collaborative wildfire mitigation treatments. V. RECOMMENDATIONS A. TEXT AMENDMENTS TO THE COMPREHENSIVE PLAN AND BEND URBAN GROWTH BOUNDARY ZONING ORDINANCE AND ZONE CHANGE Based on the foregoing Findings of Fact and Conclusions of Law the Hearings Officer recommends the Deschutes County Board of County Commissioners approve Applicants' request for text amendments to the Comprehensive Plan (Chapter 23) and the Bend Urban Growth Boundary Zoning Ordinance (Chapter 19), to add a new zone ("Westside Transect Zone") and a zoning map amendment to change the zoning on the Subject Property from Surface Mining and Urban Area Reserve ("UAR-10") to the Westside Transect Zone ("WTZ") upon the conditions that: • Adoption of Applicants' revised text for the WTZ zoning code submitted in Exhibit 33 and revising the Deschutes County Comprehensive Plan language of 3.3.9.4 limiting the residential development to 187 single-family residential lots; and K117 Addition of the following language to the WTZ zoning code: "19.22.020 Applicability The Westside Transect Zoning District may be applied on the west side of the Deschutes River and east of Tumalo Creek on lands designated Urban Area Reserve on the Deschutes County Comprehensive Plan map where exceptions to Statewide Planning Goals 3, 4 and 14 have been taken to allow densities below one dwelling unit per ten acres."; and Execution of the Development Agreement ("DA") by the City and Applicants in substantially the same form as contained in the hearing record (attachment to Applicants' email to Staff dated September 7, 2018) or, in the alternative, prior to approval of any development on the Subject Property the Applicants, City and County Counsel must agree to a substitute document that assures satisfaction of the TRP written statement requirements. B. GOAL EXCEPTIONS Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer recommends the Deschutes County Board of County Commissioners find that exceptions to Statewide Planning Goal 3, Goal 4 and Goal 14 are required and that Applicants' proposed findings (quoted in the Recommendations) are adequate to meet relevant laws/rules (excepting for Applicants' evidence/argument related its position that exceptions need not be taken for Goal 3, Goal 4 and Goal 14) and that exceptions to Goal 3, Goal 4 and Goal 14 should be approved. Dated this 2nd day of November, 2018 GregoryJ Frank Deschutes County Hearings Officer Attachment: Proposed Title 19.22 106 Chapter 19.22. WESTSIDE TRANSECT ZONE - WTZ 19.22.010. Purpose. 19.22.020. Permitted Uses. 19.22.030. Conditional Uses. 19.22.040. Height Regulations. 19.22.050. Lot Requirements. 19.22.060. Land Divisions. 19.22.070. Street Improvements. 19.22.080. Off -Street Parking. 19.22.090. Fence Standards. 19.22.010. Purpose. To accommodate and provide standards for land located between the urban and rural areas that provides a transitional residential development pattern with densities ranging from one unit per 2.5 to 10 acres to guide development of stewardship communities which are designed and managed to protect wildlife habitat, and establish wildfire mitigation and prevention strategies. 19.22.020. Permitted Uses. The following uses and their accessory uses are permitted outright: A. Single-family dwelling. B. Home occupation subject to DCC 19.88.140. C. Other accessory uses and accessory buildings and structures customarily appurtenant to a permitted use subject to DCC 19.92.020. 19.22.030. Conditional Uses. The following uses and their accessory uses may be permitted subject to site plan review and a conditional use permit as provided in DCC 19.76, 19.88, and 19.100: A. Public, parochial and private schools, including nursery schools, kindergartens and day nurseries; but not including business, dancing, trade, technical or similar schools subject to DCC 19.88.160. B. Parks and recreation facilities, community buildings and fire stations; but not including storage or repair yards, warehouses or similar uses. C. Utility facility, including wireless telecommunications facilities, subject to DCC 19.88.120. D. Churches. 19.22.040. Height Regulations. No building or structure shall be hereafter erected, enlarged or structurally altered to exceed 30 feet in height, except for schools which shall not exceed 45 feet in height. 19.22.050. Lot Requirements. The following requirements shall be observed: A. Lot Area. Each lot shall have a minimum of 2.5 acres. B. Lot Width. Each lot shall be a minimum width of 125 feet. C. Front Yard. The front yard shall be a minimum of 40 feet. D. Side Yard. There shall be a minimum side yard of 30 feet. E. Rear Yard. There shall be a minimum rear yard of 30 feet. F. Solar Setback. The solar setback shall be as prescribed in DCC 19.88.210. G. Park Setback. The setback from Shevlin Park shall be a minimum of 100 feet. H. Slope Setback. There shall be a minimum setback of 30 feet from the edge of any slope which exceeds 20%. 19.22.060. Land Divisions. All residential subdivisions shall be master planned under DCC 17.16.050 and shall comply with the following. A. Master Development Plan Requirements. In addition to the overall master development plan requirements of DCC 17.16.050, such master development plans in the Westside Transect Zone shall also demonstrate: 1. The lot configuration, street layout, trails and any open space or common areas are designed to be compatible with existing or projected uses on adjacent properties; 2. The adequacy of the transportation access, including trails, to the site; and 3. The development contributes to the preservation of natural and physical features of the site, including but not limited to, general topography, natural hazards and natural resource values. B. Residential lots shall be limited to 100 residential lots for the North Transect and 87 residential lots for the South Transect, as depicted on Figure 1 at the end of this chapter. C. The subdivision shall be designed in accordance with a Wildlife Habitat Management Plan and a Wildfire Mitigation Plan for the subdivided property as described below and submitted with the master development plan application. 1. A Wildlife Habitat Management Plan prepared by a professional biologist which identifies important wildlife habitat and migration corridors and contains provisions for deed restrictions or restrictive covenants which include but are not limited to the following components: a. Dedicated open space and/or resource management corridors with specific enforceable measures to aid in wildlife migration and protect habitat within these areas. b. Specific vegetation management standards for areas within the open space and/or resource management corridors to protect wildlife habitat funded through homeowner assessment and performed, monitored and enforced by the homeowners association. c. Specific setbacks from wildlife corridors. d. Provisions which demonstrate coordination with the Wildfire Mitigation Plan described below to establish joint management objectives and designated areas for wildlife habitat measures which are outside of the defensible space and wildfire mitigation areas. e. Requirements for annual review of the plan by a professional biologist and a reporting of those findings and any recommended alterations to the plan to the County once every three years. 2. A Wildfire Mitigation Plan prepared by a professional forester which identifies and includes enforceable measures to prevent the ignition and spread of wildfire, and contains provisions for deed restrictions and/or restrictive covenants which include but are not limited to the following components: a. Requirement to develop and maintain all residential lots in compliance with the National Fire Protection Association (NFPA) Zone 1, 2 and 3 standards, containing concentric rings extending outward from the structure implementing the defense in depth approach, with Zone 1: 30 feet adjacent to structures, Zone 2: 30 to 100 feet from structures, and Zone 3: 100 to 200 feet from structures. b. Home construction in accordance with firewise structural design and construction standards as set forth in Table 19.22. c. Requirements and specific provisions for ongoing vegetation management funded through homeowner assessment and performed, monitored, and enforced by the homeowners association. d. Provisions which demonstrate coordination with the Wildlife Habitat Management Plan described above to establish joint management objectives and designated areas for wildlife habitat measures which are outside of the defensible space and wildfire mitigation areas. e. Requirements for annual review of the plan by a professional forester and a reporting of those findings and any recommended alterations to the plan to the County once every three years. D. A Stewardship Community Plan which includes provisions designed to educate residents of the unique resource values of the area and the community goals to utilize best management practices in the community development and operation to protect wildlife habitat and to establish and implement firewise community strategies. E. A draft of the deed restrictions or restrictive covenants to implement provisions of the Wildlife Habitat Management and Wildfire Mitigation Plans. F. A draft of the document establishing an acceptable homeowners association assuring the enforcement of the deed or covenant restrictions, maintenance of any common property, open space or resource management corridors and private streets, and providing for the assessment and collection of fees to fund the deed or covenant restrictions. G. If phasing is proposed, a phasing plan for the tentative subdivision plats. Each tentative subdivision application shall include a plat map meeting the subdivision requirements of DCC Title 17, the Subdivision / Partition Ordinance, except as may be specifically modified herein. 19.22.070. Street Improvements. Subject to applicable provisions of DCC Title 17, streets within the Westside Transect Zone may be private. For proposed private roads, on -street parking is prohibited and the owner shall submit proof of a homeowner's association, deed restriction or the equivalent to assure continued ownership, maintenance and repair of the private streets. A. Notwithstanding the allowance for private roads, the county may determine that public road(s) are required to meet regional transportation needs and goals, including but not limited to a collector road to provide north -south connectivity through the Westside Transect Zone. 19.22.080. Off-street Parking. Off-street parking shall be provided as required in DCC 19.80. 19.22.090 Fence Standards. The following fencing provisions shall apply for any fences constructed as a part of residential development: A. New fences shall be designed to permit wildlife passage. The following standards and guidelines shall apply unless an alternative fence design which provided equivalent wildlife passage is approved by the County after consultation with the Oregon Department of Fish and Wildlife: 1. The distance between the ground and the bottom strand or board of the fence shall be at least 15 inches. 2. The height of the fence shall not exceed 48 inches above ground level. 3. Smooth wire and wooden fences that allow passage of wildlife are preferred. Woven wire fences are discouraged. B. Fences encompassing less than 10,000 square feet which surround or are adjacent to residences or structures are exempt from the above fencing standards. 0 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 Work Session of November 7, 2018 DATE: October 31, 2018 FROM: Peter Gutowsky, Community Development, 541-385-1709 TITLE OF AGENDA ITEM: Non -Resource Lands / Draft Comprehensive Plan Amendments ATTENDANCE: Peter Gutowsky, Planning Manager; Nick Lelack, Director SUMMARY: During the Board of County Commissioners (Board) work session on September 17, staff discussed tailoring a Non -Resource Lands program to new comprehensive plan policies and in subsequent phases, two new zones that exclusively address: (1) Four platted subdivisions and Section 36; and (2) Lands a mile from the City of Bend Urban Growth Boundary (UGB) that may be excellent candidates for future urbanization. Attached are preliminary draft amendments to the Comprehensive Plan. Staff looks to the Board for direction. One approach is to re-engage the Board in early January 2019 to thoroughly discuss the draft policies and a timeline for initiating legislative amendments to the Comprehensive Plan. TO: Deschutes County Board of Commissioners FROM: Peter Gutowsky, AICP, Planning Manager Nick Lelack, AICP, Director DATE: October 31, 2018 SUBJECT: Non -Resource Lands Project / Draft Comprehensive Plan Amendments I. BACKGROUND During the Board of County Commissioners (Board) work session on September 17, staff discussed tailoring a Non -Resource Lands program to new comprehensive plan policies and in subsequent phases, two new zones that exclusively address: (1) Four platted subdivisions and Section 36; and (2) Lands a mile from the City of Bend Urban Growth Boundary (UGB) that may be excellent candidates for future urbanization. Staff identified four subdivisions and Section 36 platted prior to State enabling planning legislation that are zoned Exclusive Farm Use (EFU) or Forest Use (F-2). These properties, which are now committed to residential uses, are subject to strict resource zoning requirements, dictated by State law, for new dwellings, remodels, additions and accessory structures. A new Non -Resource Lands zone that incorporates rural residential zoning standards could permit these uses outright and remedy this financial hardship. Regarding lands near Bend's UGB, Deschutes County could establish a second Non -Resource Lands zone that acts as a placeholder for an Urban Reserve Area designation and/or a future UGB amendment. This new zone could establish minimum parcel sizes and discrete land uses that ensure large parcels remain intact for future urbanization. If this two -phased approach is successful, staff would seek Board direction on whether to consider applying this legal framework to other eligible areas. 11. DRAFT COMPREHENSIVE PLAN AMENDMENTS Attached are preliminary draft amendments to the Comprehensive Plan. Table 1 provides an overview. The amendments rename "Non -Resource Lands" to "Rural Lands." Table 1— Preliminary Comprehensive Plan Amendments Comprehensive Plan Section Overview Adds Rural Lands to list of comprehensive plan map designations and Rural Lands -10 and Section 1.3 Land Use Planning Rural Lands -20 zones to list of zoning codes Amends Policy 2.2.3, allowing comprehensive plan and zoning map amendments for Section 2.2 Agricultural Lands qualifying Rural Lands defined in OAR 660-004-005(3) Adds Policy 2.3.13, allowing comprehensive plan and zoning map amendments for Section 2.3 Forest Lands qualifying Rural Lands defined in OAR 660-004-005(3) Adds Section 3.11 Rural Lands to the list of sections associated with Chapter 3 - Rural Section 3.1 Introduction Growth Management Adds a bullet to a paragraph discussing Deschutes County growth potential, recognizing Section 3.2 Rural Development that some farm and forest lands meeting the definition of OAR 660-004-005(3) can be re -designated and rezoned to Rural Lands for low density rural development Adds a paragraph describing Rural Lands Amends Policy 3.3.1, clarifying that new rural residential parcels in Rural Residential Section 3.3 Rural Housing Exception Areas are 10 acres Adds two policies, Policy 3.3.2 and 3.3.3 which describe minimum parcel sizes for new rural residential parcels in the Rural lands -10 zone and Rural lands -20 zone Creates a new section, Section 3.11 for Rural Lands Adds 4 paragraphs describing Rural Lands and 4 Rural Lands goals: 1. Allow the designation of Rural Lands in Deschutes County 2. Resolve resource zoning restrictions applied to subdivisions platted prior to Statewide planning legislation and Section 36 3. Retain rural properties east of the City of Bend's Urban Growth Boundary for future urbanization 4. Analyze other locations in Deschutes County for Rural Lands designations and corresponding zones Establishes 17 Rural Lands policies which address: o General Policies Lists eligibility criteria o Committed Residential Use Policies 4- Rural Lands -10 zone relate to four subdivisions and Section 36 4- Single family dwelling or manufactured home and accessory uses allowed Section 3.11 Rural Lands (New) outright 4- Minimum parcel size (10 acres) o Greater Bend Urban Growth Boundary Policies Rural Lands -20 zone provides standards for low-density rural land use and development and balances public interest in the management of future urbanization Applies to eligible properties up to one mile from Bend's UGB 4, Minimum parcel size (20 acres) 4- if property is divided, requires a cluster development with an equivalent density of a five acre minimum lot size Cluster development requires a shadow plat; dedicated open space must be made available for urbanization upon a UGB amendment o Other Locations Upon adopting Rural lands -10 and -20 zones, Deschutes County will conduct community conversations to discuss opportunities for other Rural Lands designations -2- III. NEXT STEPS Staff looks to the Board for direction. One approach is to re-engage the Board in early January 2019 to thoroughly discuss the draft policies and a timeline for initiating legislative amendments to the Comprehensive Plan. Attachments Section 1.3 Land Use Planning Section 2.2 Agricultural Lands Section 2.3 Forest Lands Section 3.1 Introduction Section 3.2 Rural Development Section 3.3 Rural Housing Section 3.11 Rural Lands (New) -3- Sect,Lovx, 3..3 t_-avvol lyse T->I,av%,vk,%w01 Background This section establishes the overall framework for the development and implementation of plans and policies for land use within the County. Statewide planning guidelines require each county to establish a land use planning process based on current issues and factual information. The policies in this section assure that the County's land use policies are current, fact -based and responsive to change. The policies recognize the need for coordination between the cities and the County and provide full public access to Plan documents and the information upon which land use decisions are based. As noted throughout this Plan, there are two important things to remember. First, the Oregon land use system draws a bright line between rural and urban lands and promotes new growth and infrastructure in urban areas. Growth on rural lands is limited in order to protect farms, forests, open spaces and natural resources. Deschutes County is required to plan in compliance with the State planning system in order to promote orderly and efficient growth and protect the resources important to Oregonians. Second, land use is often controversial because ultimately it can intermix community values with private property rights and expectations. A property owner may choose to keep pigs, or start a day care center or build a windmill. For each of those uses there may be impacts on the neighbors in the form of odors, traffic or blocked views. Land use regulations attempt to achieve a balance between giving property owners the freedom to use their property however they choose while maintaining the livability of the neighborhood and wider community. This Plan recognizes those tensions that occur when creating land use policies. Land Use Statewide Planning Goal 2 Land Use Planning, requires a fact -based land use planning process and policy framework to guide land use decisions. It requires comprehensive planning that identifies issues and complies with Statewide Planning Goals. Goal 2 also addresses the process to allow exceptions to Statewide Goals (see also Section 5.10). In 1979 the County complied with the Statewide planning system by writing a Comprehensive Plan. From 1988-2003 the County underwent State mandated Periodic Review to ensure the Plan was still in compliance with changing State regulations. The 2008-2011 update was done outside of Periodic Review, which is no longer required for Oregon counties. Instead, the County recognized that to remain valid the Comprehensive Plan needed to be completely rewritten and updated. For historic reference, a copy of the Comprehensive Plan replaced by this Plan will remain available on the County website. This Plan is a policy document based on existing facts and community values. No specific land use designation changes are included in the 2008-2011 Plan update. Instead, this Plan revisits each Statewide Goal, its existing Goals and Policies, community values and new issues requiring policy direction. It lays out a blueprint for the future and defines what matters to County residents and businesses through updated Goals and Policies. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 1 COMPREHENSIVE PLANNING SECTION 1.3 LAND USE The Comprehensive Plan is implemented primarily through zoning and the zoning code must be regularly reviewed for compliance with the Plan. However, there are other tools for implementation, such as capital improvement plans, partnerships or incentive programs. To assure this Plan remains useful, an action plan identifying various ideas for implementing Comprehensive Plan policies will be created. The action plan will be annually updated and reviewed to identify and prioritize work plans for the coming year. Land Ownership and jurisdiction When considering land use in Deschutes County two important factors are the amount of public ownership and which lands are under County jurisdiction. Table 1.3.1 shows nearly 80% of land in the County is publically owned. The implications of the large tracts of public land range from the loss of tax revenue to having vast open lands available for recreation for both tourists and residents. Table 1.3.1 — Public Land in Deschutes County 2010 Ownership Acres* Percent Total County Acres 1,913,482 100% Federal Government 1,466,067 76.6% State Government 53,051 2.8% County Government 10,434 0.6% Total Public Lands 1,529,552 1 79.9% not include roads, right-of-ways, lakes, rivers or as cities or park districts Source: County Geographical Information System Table 1.3.2 shows jurisdictional responsibilities. Note that the federal government, primarily through the Bureau of Land Management and the U.S. Forest Service, owns over 76% of the land in the County. Federal lands are not required to conform to local regulations, such as zoning. They rely on their own resource plans. This means a majority of lands in the County are not under County jurisdiction. However, they remain in this Plan to encourage intergovernmental policy coordination. Table 1.3.2 — 2010 Land jurisdiction in Deschutes County 2010 jurisdiction Acres* Percent Total County Acres 1,913,482 100% Federal Government 1,466,067 76.6% Bend Urban Growth Boundary 17,534 0.9% La Pine Urban Growth Boundary 4,008 0.2% Redmond Urban Growth Boundary 10,733 0.6% Sisters Urban Growth Boundary 1,023 0.1% Total Cities 33,298 1.7% Total Other jurisdiction 1,499,365 78.4% * Acres of parcels — does not includes roads, right-of-ways, lakes and rivers In addition to Federal lands, four cities have primary jurisdiction over less than 2% of lands in the County. This includes lands outside the incorporated city boundaries, but inside urban growth boundaries. The urban growth boundaries define a municipality's 20 -year land supply to accommodate future growth. These lands are managed by the cities through intergovernmental DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER I COMPREHENSIVE PLANNING SECTION 1.3 LAND USE agreements between the cities and the County. The bottom line is that the County has land use jurisdiction over approximately 22% of the land base. Comprehensive Plan Map Designations The Comprehensive Plan Map (Map) illustrates the County's goals and policies. The Map describes land use categories that provide for various types of development and conservation for the rural area during the 20 -year planning period. Each Comprehensive Plan map designation provides the land use framework for establishing zoning districts. Zoning defines in detail what uses are allowed for each area. The Deschutes County Comprehensive Plan and Zoning Maps exist in official replica form as an electronic map layer within the County Geographic Information System. Other maps illustrating various Comprehensive Plan areas, such as rural commercial properties, are available to the public for informational purposes. The Comprehensive Plan map designations are defined below. Agriculture: To preserve and maintain agricultural lands for farm use. Airport Development: To allow development compatible with airport use while mitigating impacts on surrounding lands. Destination Resort Combining Zone: To show lands eligible for siting a destination resort. Forest: To conserve forest lands for multiple forest uses. Rural Lands: To recognize lands dined in OAR 660-004-00SQ) that cannot qualify for an exception pursuant to applicable planning law but fail to satisfy the definitions of agricultural or forest lands contained in the Statewide Planning Goals and implementing administrative rules. Open Space and Conservation: To protect natural and scenic open spaces, including areas with fragile, unusual or unique qualities. Rural Residential Exception Areas: To provide opportunities for rural residential living outside urban growth boundaries and unincorporated communities, consistent with efficient planning of public services. Surface Mining: To protect surface mining resources from development impacts while protecting development from mining impacts. Resort Community: To define rural areas with existing resort development that are not classified as a destination resort, based on Oregon Administrative Rule 660-22 or its successor. Rural Community: To define rural areas with limited existing urban -style development, based on Oregon Administrative Rule 660-22 or its successor. Rural Service Center. To define rural areas with minimal commercial development as well as some residential uses, based on Oregon Administrative Rule 660-22 or its successor. Urban Unincorporated Community: To define rural areas with existing urban development, based on Oregon Administrative Rule 660-22 or its successor. Rural Commercial: To define existing areas of isolated rural commercial development that do not fit under Oregon Administrative Rule 660-22. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER I COMPREHENSIVE PLANNING SECTION 1.3 LAND USE Rural Industrial: To define existing areas of isolated rural industrial development that do not fit under Oregon Administrative Rule 660-22. Urban Growth Boundaries: To define land that provides for urban development needs and identifies and separates urban and urbanizable land from rural land Bend Urban Area Reserve: To define lands outside of Bend's Urban Growth Boundary that were under the jurisdiction of the Bend Area General Plan. These areas were removed in September 2016 through the 2016 amendment to the Bend Urban Growth Boundary. These areas are now under the jurisdiction of the County's Comprehensive Plan. Redmond Urban Reserve Area: To define Redmond's additional 30 -year growth boundary for lands expected to be brought into the Urban Growth Boundary. Comprehensive Plan Map Designations and Associated Zoning Table 1.3.3 lists existing Comprehensive Plan designations and related Zoning districts. Some Plan designations apply County -wide and some only apply to designated areas of existing development. The Destination Resort designation is a combining zone that supplements the underlying zoning. Most of the area -specific designations fall under the State rules for Unincorporated Communities and are detailed in Chapter 4 of this Plan. The Rural Commercial and Rural Industrial areas are detailed in Chapter 3 under Rural Economy. Table 1.3.3 - Comprehensive Plan and Zoning Code Designations Comprehensive Plan Designation I Associated Deschutes County Zoning Code County -wide designations Agriculture Title 18 - All EFU subzones Airport Development Title 18 - AD, AS Destination Resort Combining Zone Title 18 - DR Forest Title 18 - F-1, F-2 Rural Lands Title 18 - RL -10 and RL -20 Open Space and Conservation Title 18 - OS&C Rural Residential Exception Area Title 18 - RR -10 and MUA-10 Surface Mining Title 18 - SM Area specific designations Resort Community Title 18 - All Black Butte Ranch and Inn of the Th Mountain/Widgi Creek subzones Rural Community Title 18 - All Tumalo and Terrebonne subzones Rural Service Center Title 18 - All RSC zones Urban Unincorporated Community Title 18 - All Sunriver subzones Rural Commercial Title 18 - Rural Commercial Rural Industrial Title 18 - Rural Industrial Bend Urban Growth Area Title 19 - UAR-10, SM, SR 2 ''/2, RS, IL, FP Redmond Urban Growth Area Title 20 - UH -10 Sisters Urban Growth Area Title 21 - UAR-10, OA, FP Redmond Urban Reserve Area Title 18 - RURA 4 DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER I COMPREHENSIVE PLANNING SECTION 1.3 LAND USE Intergovernmental and Other Coordination Regional Coordination Deschutes County is responsible for coordinating all planning activities affecting land uses within the County. ■ Coordinating population forecasts ■ Coordinating with special districts, including irrigation districts, park districts, school districts, sewer districts, and water districts ■ Establishing Cooperation Agreements with special districts that provide an urban service in a UGB ■ Coordinating with the U.S. Forest Service and Bureau of Land Management ■ Joint Management Agreements with municipalities for managing urban growth areas (areas outside city limits, but inside a UGB) ■ Establishing Urban Reserve Areas The County recognizes the importance of working closely and cooperatively with the cities of Bend, La Pine, Redmond and Sisters, as well as special districts and state and federal agencies, to ensure a coordinated approach to future growth and conservation. Cooperative Agreements Cities are required to enter into a cooperative agreement with each special district that provides an urban service within a UGB. The appropriate city may also enter into a cooperative agreement with any other special district operating within a UGB. Urban Service Agreements Deschutes County has the responsibility for negotiating urban service agreements with representatives of all cities and special districts that provide, or declare an interest in providing, urban services inside an Urban Growth Boundary. Urban service means: ■ Sanitary sewers; ■ Water; ■ Fire protection; ■ Parks; ■ Open space; ■ Recreation; and ■ Streets, roads and mass transit. ■ Special Districts Special Districts Special districts are defined in ORS 198.010 and are recognized as government bodies. Special districts include the following. Table 1.3.4 - Special Districts Utility district I Rural fire protection district Water supply district Irrigation district Cemetery maintenance district Drainage district Park and recreation district orizanized Water improvement district DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER I COMPREHENSIVE PLANNING SECTION 1.3 LAND USE Mass transit district Water control district Metropolitan service district organized Vector control district Special road district 9-1-1 communications district Road assessment district Geothermal heating district Highway lighting district Transportation district Health district Library district Sanitary district Soil & water conservation district Sanitary authority, water authority or joint water and sanitary authority Other Coordination Besides intergovernmental coordination, Deschutes County generally supports coordination and partnerships with non -profits and other organizations that are working with residents to improve the quality of life in the County. There are groups working to address issues from affordable housing to clean rivers, from economic development to fire -free neighborhoods. Two examples of community projects that were completed from 2006-2010 are the Bend 2030 Plan and the Deschutes County Greenprint, both created after extensive public outreach. Note that the nature and extent of the County's role will vary based on County priorities at any given time and that coordination on a project does not ensure County support of every action undertaken on that project. Still, partnering is an efficient and effective method of addressing important issues. County -Owned property When considering land use it is important to consider County -owned lands, which are managed through Deschutes County Code Title 11. As of 2009 there were nearly 700 individual parcels owned by the County, totaling almost 8,000 acres. Management of these properties consists of defining appropriate uses for different parcels, cleaning up illegal dumpsites, fire hazard reduction and public auction. Many of these properties were acquired through foreclosure for non-payment of property taxes. It is anticipated that the County will continue to acquire lands through foreclosure. Starting in 1994 the County began to designate certain sensitive properties along rivers, creeks or streams or with wildlife, wetlands or other values, as park lands. The intent was not to develop these lands for park use but rather to preserve lands with valuable resources. The park designation means that the lands would be retained in public ownership unless there was a public hearing and the Board of County Commissioners determined that selling was in the best interest of the public. ORS 275.330 governs the disposal of these lands, stating that if they are sold the proceeds must be dedicated to park or recreation purposes. As of 2009, there were approximately 70 properties designated as park lands under the following Orders. .*. - :: 94-138 98-127 96-071 2004-001 97-147 2004-037 97-151 2006-019 DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER I COMPREHENSIVE PLANNING SECTION 1.3 LAND USE Seot�Ow 1.3 l�v6Dl LtSe T>LRv Vk"L' V'0 1>0L cies Goals and Policies Goal 1 Maintain an open and public land use process in which decisions are based on the objective evaluation of facts. Policy 1.3.1 Protect the limited amount of privately -owned land in Deschutes County through consideration of private property rights and economic impacts to property owners and the community when creating and revising land use policies and regulations. a. Evaluate tools such as transfer of development rights programs that can be used to protect private property. Policy 1.3.2 Consider sustainability and cumulative impacts when creating and revising land use policies and regulations. Policy 1.3.3 Involve the public when amending County Code. Policy 1.3.4 Maintain public records which support the Comprehensive Plan and other land use decisions. Policy 1.3.5 Review the Comprehensive Plan every five years and update as needed, in order to ensure it responds to current conditions, issues and opportunities, as well as amended State Statute, Oregon Administrative Rules and case law. Policy 1.3.6 Maintain and enhance web -based property -specific information. Policy 1.3.7 The Deschutes County Comprehensive Plan Map will be retained in official replica form as an electronic map layer within the County Geographic Information System and is adopted as part of this Plan. Policy 1.3.8 Implement, as appropriate, recommendations in the Final Report from the Oregon Task Force on Land Use Planning dated January 2009. Policy 1.3.9 A list of actions to implement this Comprehensive Plan shall be created, maintained and reviewed yearly by the Community Development Department and the Board of County Commissioners. Goal 2 Promote regional cooperation and partnerships on planning issues. Policy 1.3. 10 Regularly review intergovernmental and urban management agreements, and update as needed. Policy 1.3.1 1 Participate in and, where appropriate, coordinate regional planning efforts. a. Provide affected agencies, including irrigation districts, an opportunity to comment and coordinate on land use policies or actions that would impact their jurisdictions. Policy 1.3.12 Support non-profit or public acquisition of lands determined through an extensive public process to have significant value to the community. Policy 1.3.13 Support implementation of the Bend 2030 Plan and incorporate, as appropriate, elements from the Bend 2030 Plan into this Plan. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER I COMPREHENSIVE PLANNING SECTION 1.3 LAND USE Goal 3 Manage County owned lands efficiently, effectively, flexibly and in a manner that balances the needs of County residents. Policy 1.3.14 Where feasible, maintain and manage County owned properties as follows: a. Manage designated park lands to preserve the values defined in the park designation; b. Permit public access to County owned lands designated as parks unless posted otherwise; c. Encourage properties located along rivers, streams or creeks or containing significant wildlife, scenic or open space values to be designated as park land. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER I COMPREHENSIVE PLANNING SECTION 1.3 LAND USE scct%Ow 2.2 AgrLcu.LtkraL l_-awols Background Protecting farm lands and the economic benefits of agriculture is one of the primary goals of the Oregon land use system. Statewide Planning Goal 3 establishes farmland identification and protection standards which must be met by local governments. The Goal requires farm lands to be preserved for farm uses, consistent with existing and future needs for agricultural products, forest and open space. Additional criteria for Goal 3 can be found in Oregon Revised Statute (ORS) 215 and in Oregon Administrative Rule (OAR) 660-33. These criteria spell out in considerable detail which lands shall be designated as farm lands and what uses are permissible. The main concept is that local governments must inventory and protect farm lands though the use of Exclusive Farm Use (EFU) zones that provide primarily for the continuation of commercial -scale agriculture, including farm operations, marketing outlets and the agricultural support system. To provide a science based method of identifying farm lands, Statewide Goal 3 defines agricultural lands primarily through soil classifications. However, other lands can, and often must, be classified for farming based on the criterion `suitable for farm use' or being near agricultural lands. Excerpt from Statewide Planning Goal 3 "Agricultural Land ... in eastern Oregon is land of predominantly Class I, 11, 111, IV, V and VI soils as identified in the Soil Capability Classification System of the United States Soil Conservation Service, and other lands which are suitable for farm use taking into consideration soil fertility, suitability for grazing, climatic conditions, existing and future availability of water for farm irrigation purposes, existing land -use patterns, technological and energy inputs required, or accepted farming practices. Lands in other classes which are necessary to permit farm practices to be undertaken on adjacent or nearby lands, shall be included as agricultural land in any event. More detailed soil data to define agricultural land may be used by local governments if such data permits achievement of this goal. Agricultural land does not include land within acknowledged urban growth boundaries or land within acknowledged exceptions to Goals 3 or 4." Besides Statewide Goal 3, farming is protected in Oregon by "right -to -farm" law (ORS 30.930- 047). This law protects commercial farms from nuisance suits brought about by generally accepted farming practices, such as noise, dust or odors. County Agricultural Designations Farm land designations in Deschutes County have been and continue to be highly controversial. In designating farm lands in the late 1970s, the County was hampered by the limited availability of soil maps. Where soil maps existed those were consulted, but the County also included irrigated lands and lands receiving farm deferrals for the previous five years. Ultimately, seven separate agricultural areas were identified, each specifying minimum lot sizes. In general, non- urban, non -forest, undeveloped and uncommitted lands were determined to be farm lands. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.2 AGRICULTURAL LANDS Despite designating many agricultural areas by default, the 1979 Resource Element noted that based on agricultural determinants of soils, water, climate and economics, profitable farming in the County remained difficult. The findings for protecting non-profitable agricultural land noted the aesthetic value of farm land, the costs and hazards of allowing local development and the economic importance of rural open space. In 1992 a commercial farm study was completed as part of the State required periodic review process. The study concluded that irrigation is the controlling variable for defining farm lands in Deschutes County. Soil classifications improve when water is available. Seven new agricultural subzones were identified based on the factual data provided in the 1992 study and minimum acreages were defined based on the typical number of irrigated acres used by commercial farms in that particular subzone (with the exception of the Horse Ridge subzone). Like the 1979 Resource Element, the 1992 farm study noted the challenges of local commercial farming. The high elevation (2700-3500 feet), short growing season (88-100 days), low rainfall and distance to major markets hamper profitability. The 1992 study resulted in minimum lot sizes that are smaller than the State requirement of 80 acres for farm land and 160 acres for range land. These minimum lot sizes are unique in Oregon and were acknowledged as in compliance with Goal 3 by the Oregon Land Conservation and Development Commission. In general, County farm designations are effectively protecting farm lands while allowing limited land divisions. Deschutes County Agricultural Sub -Zones As noted above, the County maintains a unique set of farm sub -zones based on the average number of irrigated acres for each type of farm land as determined in the 1992 farm study. Irrigated land divisions in each sub -zone must result in parcels that retain the acreages shown in Table 2.2.1. Table 2.2.1 - Exclusive Farm Use Subzones Subzone Name Minimum Acres Profile Lower Bridge 130 Irrigated field crops, hay and pasture Sisters/Cloverdale 63 Irrigated alfalfa, hay and pasture, wooded grazing and some field crops Terrebonne 35 Irrigated hay and pasture Tumalo/Redmond/Bend 23 Irrigated pasture and some hay Alfalfa 36 Irrigated hay and pasture La Pine 37 Riparian meadows, grazing and meadow hay Horse Ridge East 320 Rangeland grazing Source: Deschutes County i 992 Farm Study Irrigation Districts As shown in the 1992 farm study, irrigation and irrigation districts are instrumental factors for Deschutes County agriculture. Irrigation districts in Oregon are organized as Special Districts under ORS Chapter 545. The districts are created for the purpose of delivering water to their patrons. As such they are effectively non-profit water user associations. In addition to irrigation, these districts also supply a number of other uses, including municipal, industrial, and DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.2 AGRICULTURAL LANDS pond maintenance. However, by and large the districts exist for the purposes of delivering irrigation. Seven districts, which withdraw their water supply from the Deschutes River Basin, have formed an intergovernmental unit called a "board of control" under ORS 190.125. This organizational structure allows the districts to work together as a unit in implementing water conservation projects, providing educational resources, utilizing equipment and for other joint purposes. A key goal for the Deschutes Basin Board of Control is to preserve agricultural uses in those areas where irrigation improves soils to class VI or better. The six irrigation districts listed below serve residents or have facilities within Deschutes County and are members of the Deschutes Basin Board of Control. Arnold Irrigation District The present Arnold Irrigation District was first organized as the Arnold Irrigation Company on December 27, 1904 and became official on January 9, 1905. As of 2010 the district manages approximately 65 miles of canals, ditches and pipes in an area of approximately 18,560 acres. Central Oregon Irrigation District The Central Oregon Irrigation District (COID) was established in 1918. The District provides water for approximately 45,000 acres within an 180,000 acre area in Central Oregon. More than 700 miles of canals provide agricultural and industrial water to irrigate Terrebonne, Redmond, Bend, Alfalfa and Powell Butte areas. In addition, COID provides water to the City of Redmond and numerous subdivisions. In Bend, many parks and schools receive water through the COID system. COID is also the managing partner in the operation of the 55,000 acre foot Crane Prairie Reservoir, located on the east side of the Central Cascades. North Unit Irrigation District The North Unit Irrigation District (NUID) was organized in 1916. As part of the Reclamation Act of 1902, Congress approved the Deschutes Project and in 1927 began construction of the project under the direction of the U.S. Bureau of Reclamation. The project was completed in 1949 allowing NUID to serve nearly 50,000 acres. Today NUID is the second largest irrigation district in Oregon, serving approximately 59,000 acres in Jefferson County. NUID maintains facilities in Deschutes County, including Wickiup Dam, Bend Headworks and the North Unit Irrigation Canal. NUID has a long-standing relationship with the U.S. Bureau of Reclamation as a result of the Deschutes Project. Swalley Irrigation District The Swalley Irrigation District was organized as the Deschutes Reclamation and Irrigation Company (DRIC) in 1899. In 1994 the shareholders of the DRIC voted to incorporate as an irrigation district and took the name of Swalley Irrigation District. The District has 28 miles of canals and laterals providing water to 667 customers. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.2 AGRICULTURAL LANDS Three Sisters Irrigation District The Three Sisters Irrigation District (formerly Squaw Creek Irrigation District) was founded in 1917 from the Squaw Creek Irrigation Company and the Cloverdale Irrigation Company. They were founded in 1891 and 1903 respectively, making Three Sisters Irrigation District one of the oldest such districts in Oregon. The District serves approximately 175 water users over approximately 7,568 acres. Tumalo Irrigation District Originally known as the Tumalo Project, Tumalo Irrigation District started in 1904. In 1922 the Project reorganized as an irrigation district under Oregon state laws. The District serves approximately 60 square miles, irrigating approximately 8,093 acres, and has over 80 miles of canals, laterals and ditches serving 635 landowners. Deschutes County Agriculture 2007 - 2009 The following statistics provide a snapshot of farming in Deschutes County. Source: County GIS data ■ Approximately 36% of the County or more than 700,000 acres are designated as Agriculture on the Comprehensive Plan map. Of that acreage, 69% is public, primarily Federal ownership leaving approximately 224,000 acres privately held. ■ 160,078 acres of privately owned farm lands in the County receive special tax assessment for farm use. ■ Of the acres receiving farm tax assessments, 44,221 are irrigated. ■ In 2008 there were 3,725 agricultural parcels less than five acres. Source: Oregon State University Extension Oregon Agricultural Information Network, Deschutes County Agricultural Commodity Sales for 2009 (preliminary estimate) ■ $19,792,000 in agricultural sales, a drop from the 2008 preliminary estimate of $25,991,000. This follows slight upturns in sales between 2006-2008. ■ 62% of agriculture sales are in crops and 38% in livestock. The primary crops are hay and alfalfa hay while the primary livestock is cattle. The biggest downturns for 2009 are non - alfalfa hay and cattle. Source: United States Department of Agriculture, National Agricultural Statistics Service 2007 Census of Agriculture ■ There are 1,405 farms in Deschutes County residing on 129,369 acres ■ Average farm size 92 acres ■ Approximately 24% of farms are under 10 acres and 78% are under 50 acres ■ Total net cash farm income is negative DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.2 AGRICULTURAL LANDS ■ 59% of farmers list their primary occupation as 'Other' rather than farming The above data highlights the fact that farming in Deschutes County is generally not commercially profitable. For a majority of farmers, farming is not a sustaining economic activity, but rather a lifestyle choice. Living on a farm and farming as a secondary economic activity acknowledge a shift from commercial farming towards the benefits of a rural lifestyle. Farm Trends 2010 Whatever the challenges, agriculture is part of Deschutes County's culture and rural lifestyle. During the public input process, various ideas were discussed on how to preserve agricultural lands, open spaces and rural character of the County, while enabling landowners to make a living. The following ideas identify current trends that could be promoted by the County in conjunction with the local extension service and other agencies and organizations. It is important to emphasize that new uses must conform to State regulations. Alternative energy: Development of small alternative energy projects would promote local energy self-sufficiency, using Central Oregon's sun, wind, thermal, hydropower and biomass resources. Larger agricultural parcels could be used as commercial wind or solar farms to provide renewable energy as well as income to landowners. Alternative uses: There is interest in allowing non-farm uses on farm lands to take advantage of agrarian lifestyles and Central Oregon's setting. Ideas being discussed include agri-tourism or hosting weddings. Nonetheless, new non-farm uses must be evaluated to ensure they are compatible with ORS and OARS as well as existing land uses and zoning. Local markets: Products from small farms are often sold to local markets. Additionally local consumption saves on transportation and energy, allowing better tracking of food sources thereby increasing food safety and improving freshness and quality. Buying local is a current trend that could benefit the County's many small farmers. Community Supported Agriculture is one popular method, where farmers obtain paid subscriptions from customers, who then receive fresh produce every week for the season. Farmers markets and farm stands are another aspect of the local food movement. Conservation easements: Many states are using programs to put permanent conservation easements on farm lands. As an example of a program that is not yet available in Oregon is the Purchase of Agricultural Conservation Easements (PACE). Funded by the federal government and a combination of other sources, PACE purchases development rights from farmers. Niche markets: Small quantities or specialized products can be raised to meet particular markets, like organic products or peppermint oil. Value-added products: Processing crops can increase profitability. An example would be making jam or jelly out of locally grown berries. Farm Councils: Farm councils are being initiated around the country to promote local sustainable food. The Central Oregon Food Policy Council (COFPC) formed in 2010 to lead the effort to a sustainable and just food system. The COFPC is made up of 12-15 volunteers including representatives from agricultural production, public health, government and others interested DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.2 AGRICULTURAL LANDS in the local food system. Identified strategies include supporting access to local healthy food, advocating for public policies that increase sustainable food production and connecting stakeholders in the food systems field. Big Look In 2005 a task force was appointed by the Oregon Governor, Speaker of the House and Senate President to review the current land use system. The Oregon Task Force on Land Use Planning was a 10 -member group representing various perspectives, charged with conducting a comprehensive review of the Oregon Statewide Planning Program. Called the Big Look Task Force, this group was asked to make recommendations for any needed changes to land -use policy to the 2009 Legislature. After three years of extensive input from experts and citizens throughout the State, the task force developed its findings and recommendations. One of the primary conclusions reached was that Oregon needs a more flexible land use system that responds to regional variations. Two of the primary recommendations from the Task Force addressed agricultural and forest lands, recommending: ■ Counties be allowed to develop regional criteria for designating farm and forest lands, if they also protect important natural areas and assure that development is sustainable. ■ Counties be allowed to propose specialized rules to decide what lands are designated as farm or forest land. 2009 Legislature / House Bill 2229 House Bill (HB) 2229 began as the vehicle for legislative recommendations for the Big Look Task Force. However, by the time the Legislature adjourned, very little of the Task Force's recommendations remained. HB 2229 does authorize counties to reevaluate resource lands and amend their comprehensive plan designations for such lands consistent with definitions of "agricultural land" and "forest land." For example, the County could add irrigated lands to the regional definition of farm lands to acknowledge the results of the 1992 farm study. Anything that does not qualify as farmland or forestland may be rezoned for non -resource use, subject to conditions that development in the non -resource zones be rural in character, not significantly conflict with surrounding farm and forest practices, and not have adverse affects on such things as water quality, wildlife habitat, and fire safety. County rezoning activities must be pursuant to a work plan approved by the Oregon Department of Land Conservation and Development. This effectively means the work will be done similar to periodic review with the Land Conservation and Development Commission expressly given exclusive jurisdiction to review a county decision. Future of Deschutes County Farm Designations and Uses Statewide Planning Goal 3 requires counties to preserve and maintain agricultural lands. However, in discussions on the future of agriculture in Deschutes County, there are still differences of opinion over which lands should be designated farm lands and what uses should be allowed. Farm lands contribute to the County in a number of ways. Agriculture is part of the ongoing local economy. Wide-open farm lands offer a secondary benefit by providing scenic open spaces that help attract tourist dollars. Farm lands also contribute to the rural character that is often mentioned as important to residents. Finally, it should be noted that agricultural lands are preserved through State policy and land use law because it is difficult to predict what DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.2 AGRICULTURAL LANDS agricultural opportunities might arise, and once fragmented the opportunity to farm may be lost. On the other hand, there seems to be widespread agreement that much of the local farm land is marginal, particularly without irrigation. The climate, especially the short growing season, makes commercial farming challenging. Statewide Planning Goal 3 does not really account for the conditions in Deschutes County, resulting in agricultural zoning being applied to land with no history of farming and limited potential for profitable farming. The small size of agricultural parcels adds to the challenges. It has been argued that preserving farm lands benefits the wider public at the expense of agricultural landowners. There is considerable pressure to convert agricultural land to residential or other uses. The debate is complicated because there are impacts to the farming community from converting agricultural lands to other uses. It can be challenging for a farmer who has residential neighbors because farming activities can have noise, odor or dust impacts. The right -to -farm law discussed earlier offers some protection to farmers, but as residential uses grow there is pressure to convert, leading to a greater loss of agricultural lands. The goals and policies in this Section are intended to provide the basis for evaluating the future of agriculture in the County over the next twenty years. They are intended to provide, within State guidelines, flexibility to the farming community. County farm lands will be preserved by ensuring a variety of alternative paths to profitability. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.2 AGRICULTURAL LANDS sect'Lovt, 2.2 A9rL'r t tkraL l_avwts PoUoLes Goals and Policies Goal I Preserve and maintain agricultural lands and the agricultural industry. Policy 2.2.1 Retain agricultural lands through Exclusive Farm Use zoning. Policy 2.2.2 Exclusive Farm Use sub -zones shall remain as described in the 1992 Farm Study and shown in the table below, unless adequate legal findings for amending the sub -zones are adopted or an individual parcel is rezoned as allowed by Policy 2.2.3. Exclusive Farm Use Subzones Subzone Name Minimum Acres Profile Lower Bridge 130 Irrigated field crops, hay and pasture Sisters/Cloverdale 63 Irrigated alfalfa, hay and pasture, wooded grazing and some field crops Terrebonne 35 Irrigated hay and pasture Tumalo/Redmond/Bend 23 Irrigated pasture and some hay Alfalfa 36 Irrigated hay and pasture La Pine 37 Riparian meadows, grazing and meadow hay Horse Ridge East 320 Rangeland grazing Policy 2.2.3 Allow comprehensive plan and zoning map amendments, including formai qualifyin -as nen reseureeRural (Lands defined in OAR 660-004-005(3), for indeyidual EFU parcels as allowed by State Statute, Oregon Administrative Rules and this Comprehensive Plan. Policy 2.2.4 Develop comprehensive policy criteria and code to provide clarity on when and how EFU parcels can be converted to other designations. Policy 2.2.5 Uses allowed in Exclusive Farm Use zones shall comply with State Statute and Oregon Administrative Rule. Policy 2.2.6 Regularly review farm regulations to ensure compliance with changes to State Statute, Oregon Administrative Rules and case law. Policy 2.2.7 Encourage water projects that benefit agriculture. Policy 2.2.8 Support a variety of methods to preserve agricultural lands, such as: a. Support the use of grant funds and other resources to assist local farmers; b. Work cooperatively with irrigation districts, public agencies and representatives and land owners; c. Encourage conservation easements, or purchase or transfer of development rights programs; d. Control noxious weeds; e. Encourage a food council or `buy local' program. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 8 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.2 AGRICULTURAL LANDS Goal 2 Promote a diverse, sustainable, revenue -generating agricultural sector. Policy 2.2.9 Encourage farming by promoting the raising and selling of crops, livestock and/or poultry. Policy 2.2. 10 Support stakeholders in studying and promoting economically viable agricultural opportunities and practices. Policy 2.2.1 1 Encourage small farming enterprises, including, but not limited to, niche markets, organic farming, farm stands or value added products. Policy 2.2.12 Review County Code and revise as needed to permit alternative and supplemental farm activities that are compatible with farming, such as agri- tourism or commercial renewable energy projects. When a preferred alternative or supplemental use identified through a public process is not permitted by State regulations work with the State to review and revise their regulations. Goal 3 Ensure Exclusive Farm Use policies, classifications and codes are consistent with local and emerging agricultural conditions and markets. Policy 2.2.13 Identify and retain accurately designated agricultural lands. Policy 2.2.14 Explore new methods of identifying and classifying agricultural lands. a. Apply for grants to review and, if needed, update farmland designations. b. Study County agricultural designations considering elements such as water availability, farm viability and economics, climatic conditions, land use patterns, accepted farm practices, and impacts on public services. c. Lobby for changes to State Statute regarding agricultural definitions specific to Deschutes County that would allow some reclassification of agricultural lands. Policy 2.2.15 Address land use challenges in the Horse Ridge subzone, specifically: a. The large number of platted lots not meeting the minimum acreage; b. The need for non-farm dwellings and location requirements for farm dwellings; c. Concerns over the impact on private property from off-road vehicles, facilities, and trails located on adjacent public lands. Policy 2.2.16 Work with the State to review and revise accessory farm dwelling requirements to address the needs of local farmers. Policy 2.2.17 Encourage coordination between fish/wildlife management organizations and agricultural interests. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.2 AGRICULTURAL LANDS SCot'ovu 2.3 Forest "VXA-S Background Protecting forests and their economic benefits are primary goals of the Oregon land use system. Statewide Planning Goal 4 establishes forest identification and protection standards which must be met by local governments. The Goal requires forests to be protected primarily for the growing and harvesting of trees, with environmental and recreational uses also being considered. Additional criteria for Statewide Goal 4 can be found in Oregon Revised Statue (ORS) 215 and Oregon Administrative Rule (OAR) 660-006. The key concept is local governments must inventory forest lands and protect them through local regulations. County Forestry Designations In 1979 in order to meet the Statewide Goal 4 inventory requirement for forest lands, the County worked with the Oregon Department of Forestry to review timber productivity based on soils information. A resulting timber productivity map was created and three categories of forest lands were identified based on forest uses identified in Statewide Goal 4. In the 1990s, the Land Conservation and Development Commission initiated the Forest Rule, OAR 660-006, defining allowed uses, siting conditions and minimum lot sizes in forest zones. In 1992, as part of State mandated Periodic Review, Deschutes County revised its forest designations, reducing forest designations and associated regulations to two (F -I and F-2). County Forests 2007 - 2009 The following statistics provide a snapshot of forests in Deschutes County. Source: County GIS data ■ Approximately 52% of the County or over I million acres are designated as forest on the Comprehensive Plan map. Of that acreage, 92% is public, primarily federal, leaving approximately 78,000 acres privately held. ■ There are 475 forest special assessment accounts. ■ The largest privately owned forest land is the 33,000 acre Skyline Forest, formerly Bull Springs Tree Farm. Source: OSU Extension Service Silviculture and Fire Education Specialist ■ Total public and private timber harvest in the County in 2007 was 22.5 million board feet, in 2008, 36.1 million board feet and in 2009, 14.7 million board feet. Source: Deschutes County Forester ■ Since 2002 approximately 130,000 acres of public and private forest lands have burned in Deschutes County at a firefighting expense of approximately $60 million. Forest Trends 2010 As timber harvesting decreases, other uses for forest lands are emerging. State regulations permit five general types of uses, including forest operations; environmental, agricultural or recreational uses; two types of dwellings and locally dependent uses. Permitted uses are defined DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 1 1 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.3 FOREST LANDS and clarified in OAR 660-006. The following uses are becoming more prominent and likely to gain importance over the next 20 years. Secondary forest products (forest operations): There is an increasing use of secondary forest products, such as hog fuel (chipped wood) or wood slash, which can be used for everything from animal bedding to presto logs to biomass fuel. There is some concern that those uses will lead to increased logging and degradation of forests. However, there is considerable agreement that the high build up of debris in local forests increases the risk of forest fires. The use of secondary forest products can contribute to the health of the forest as well as the local economy. Recreation (environmental, agricultural and recreation uses): The proximity of federal forests for hiking, mountain biking, skiing, hunting, fishing, wildlife viewing and other outdoor recreation draws tourists and residents alike. (see Section 2.6 for data on the economic impacts of wildlife tourism.) Alternative energy (locationally dependent): Commercial alternative energy projects are often locationally dependent. Forestry -related biomass plants and associated infrastructure are being considered in Central Oregon. Future of Forest Uses Most of the forest land in Deschutes County is owned and managed by the Federal government under Federal regulations. Forest practices on State or private forest lands are regulated by the Oregon Department of Forestry. The primary role of the County is to limit the impacts of development on private property in forest zones. Although most forest lands are not owned or managed by Deschutes County, forests contribute immeasurably to livability. Timber management and recreational tourism provide economic benefits and employment. Forests provide an impressive diversity of recreational opportunities. Forests also play a large role in maintaining clean air and water and they provide scenic beauty and habitat for a wide variety of plants and animals. It is important for the County to work cooperatively with forest landowners, including public agencies, non-profit organizations and private land owners. Residential Development The primary concern over changing forest uses is that as timber becomes less profitable, the pressure to develop forest lands for residential uses increases. State regulations limit the development of housing in forest zones, recognizing that fragmenting forests decreases productivity. The biggest challenge posed by residential fragmentation of forests is the danger posed by wildfire in heavily wooded areas. Fire danger has increased as dry conditions and disease have impacted the health of forest lands. Years of fire suppression and limited logging have contributed to a build up of wildland fuel that can spread fires quickly. In these conditions, residential uses in forests create conditions dangerous to homeowners and firefighters. Section 3.4, Natural Hazards, has more information on wildfire prevention. The second challenge posed by forest fragmentation is the threat to fish and wildlife. This is addressed in the Water and Wildlife sections of this Chapter. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.3 FOREST LANDS Skyline Forest HB 2228 As noted above, the goal of the Deschutes Land Trust is to purchase and manage as much of the Skyline Forest as possible for sustainable logging, wildlife, recreation and scenery. HB 2228, adopted by the 2009 Legislature, allows the owners of this land the right to build a clustered community of up to 282 dwelling units and associated services on 1,200 acres. An additional 1,800 acres must be in a conservation easement as a buffer to maintain wildlife habitat and minimize wildfire danger. In exchange for waiving State and local land use regulations to allow this development, the remaining 30,000 acres of the Skyline Forest and additional property in Deschutes and Klamath counties must be sold to a land trust and protected with a conservation easement. There are additional requirements attached to the Statue that provide more detail on items such as road access, master planning and permitted uses. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.3 FOREST LANDS sect'L'ovv 2.s Forest t_ -a viols PoUr L' es Goals and Policies Goal I Protect and maintain forest lands for multiple uses, including forest products, watershed protection, conservation, recreation and wildlife habitat protection. Policy 2.3.1 Retain forest lands through Forest I and Forest 2 zoning. Policy 2.3.2 To conserve and maintain unimpacted forest lands, retain Forest I zoning for those lands with the following characteristics: a. Consist predominantly of ownerships not developed by residences or non - forest uses; b. Consist predominantly of contiguous ownerships of 160 acres or larger; c. Consist predominantly of ownerships contiguous to other lands utilized for commercial forest or commercial farm uses; d. Are accessed by roads intended primarily for forest management; and e. Are primarily under forest management. Policy 2.3.3 To conserve and maintain impacted forest lands, retain Forest 2 zoning for those lands with the following characteristics: a. Consist predominantly of ownerships developed for residential or non -forest uses; b. Consist predominantly of ownerships less than 160 acres; c. Consist of ownerships generally contiguous to tracts containing less than 160 acres and residences, or adjacent to acknowledged exception areas; and d. Provide a level of public facilities and services, including roads, intended primarily for direct services to rural residences. Policy 2.3.4 Notwithstanding any other quasi-judicial plan or zone change criteria, lands designated as Forest under this Plan and zoned Forest 2 may upon application be redesignated and rezoned from Forest 2 to Exclusive Farm Use if such lands: a. Do not qualify under State Statute for forestland tax deferral, b. Are not necessary to permit forest operations or practices on adjoining lands and do not constitute forested lands that maintain soil, air, water and fish and wildlife resources, c. Have soils on the property that fall within the definition of agricultural lands as set forth in Goal 3, d. Are a tract of land 40 acres or less in size, e. Do not qualify under State Statute and the terms of the Forest 2 zone for a dwelling, and; f. Were purchased by the property owner after January 1, 1985 but before November 4, 1993. Such changes may be made regardless of the size of the resulting EFU zoning district. Such changes shall be processed in the same manner as other quasi- judicial plan or zoning map changes. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 4 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.3 FOREST LANDS Policy 2.3.5 Uses allowed in Forest zones shall comply with State Statute and Oregon Administrative Rule. Policy 2.3.6 Coordinate and cooperate with the U.S. Forest Service, the Bureau of Land Management and other public agencies to promote sustainable forest uses, including recreation, on public forest land, including: a. Using the Deschutes National Forest Land and Resource Management Plan, or its successor, as the basis for mutual coordination and cooperation with the U.S. Forest Service; b. Using the Prineville Bureau of Land Management Upper Deschutes Resource Management Plan, or its successor, as the basis for mutual coordination and cooperation with the Bureau of Land Management. Policy 2.3.7 Notify affected agencies when approving development that could impact Federal or State forest lands. Policy 2.3.8 Support the maintenance of the Skyline Forest as a Community Forest. Policy 2.3.9 Support economic development opportunities that promote forest health. Policy 2.3. 10 Provide input on public forest plans that impact Deschutes County. Policy 2.3.1 1 Apply for grants to review forest lands based on ORS 215.788-215.794 (2009 HB 2229). Policy 2.3.12 Coordinate with stakeholders to support forest management projects that: a. Contribute to public safety by treating wildland hazardous fuels particularly in the designated Wildlland Urban Interface as identified in the Community Wildfire Protection Plans described in Section 3.5 of this Plan; b. Retain fish and wildlife habitat. Policy 2.3.13 Allow comprehensive plan and zoning map amendments, including Qualifying Rural Lands defined in OAR 660-004-0050, for Forest Use zoned parcels as allowed by State Statute, Oregon Administrative Rules and this Comprehensive Plan. Goal 2 Adequately address impacts to public safety and wildlife when allowing development on forest lands. Policy 2.3.1-34 Review County Code and revise as needed to ensure development in forest zones mitigates impacts, particularly impacts on fish and wildlife habitat and public fire safety. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.3 FOREST LANDS �SCOU'OV, 3.1. lwtrOdkOt%ow Background People move to rural communities in Deschutes County for many different reasons, but the high quality of life was mentioned repeatedly in community meetings. Residents noted that rural living provides peace and quiet, room to breathe and a connection with the land, the natural world and a caring community. Retaining what people love about rural living while allowing growth can be challenging. This chapter looks at the functional and quality of life aspects of rural living and complements Chapter 2, Resource Management that discusses resource lands. This chapter is divided into eight sections. Seven Statewide Planning Goals apply to this chapter, along with associated Oregon Administrative Rules (OARS) that provide more specific guidance on implementing the Goals. The first four sections are Rural Development, Rural Housing, Rural Economy and Natural Hazards. State regulations for housing can be found in Statewide Planning Goal 10, Housing and OAR 660-008. Economic growth is considered in Statewide Goal 9, Economy of the State and OAR 660-009. Both Goal 10 and Goal 9 are intended to apply primarily inside Urban Growth Boundaries. Statewide Goal 2, Land Use and Goal 14, Urbanization, and OARs 660-004 and 660-014 address specific aspects of urban development on rural lands. Statewide Goal 7, Areas Subject to Natural Disasters and Hazards provides guidance on how to effectively protect development from natural hazards. The next two sections are Public Facilities and Services and Transportation. These areas are addressed in Statewide Goal 11, Public Facilities and Services and Statewide Goal 12, Transportation and associated OAR 660-011 and 660-012. The next two sections of this chapter are Rural Recreation and Destination Resorts. Statewide Planning Goal 8, Recreational Needs and Oregon Revised Statue 197.435-467 regulate these chapters. The final section discusses plans or policies to address site specific rural development issues. Purpose The purpose of the Rural Growth Management chapter is to coordinate with other chapters of this Plan to maintain the quality of life enjoyed by rural residents. This chapter is organized as follows: ■ Rural Development (Section 3.2) ■ Rural Housing (Section 3.3) ■ Rural Economy (Section 3.4) ■ Natural Hazards (Section 3.5) ■ Public Facilities and Services (Section 3.6) ■ Transportation System Plan (Section 3.7) ■ Rural Recreation (Section 3.8) ■ Destination Resorts (Section 3.9) ■ Area specific Plans and Policies (Section 3.10) ■ Rural Lands (Section 3.11) DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 3 RURAL GROWTH MANAGEMENT SECTION 3.1 INTRODUCTION Sect'WK, 3.2 RXrRL DeV60PK&eVAt Background Oregon's land use system primarily directs growth into urban growth boundaries, to preserve rural lands for farming and forestry. Recent growth in the unincorporated areas of the County consists predominantly of residential development on lots existing prior to the adoption in the 1970s of the statewide planning program and Deschutes County's Comprehensive Plan. New commercial, industrial or residential uses on rural lands are regulated by Statewide Planning Goals for farms, forests, urbanization and public facilities. State law restricts most rural commercial and industrial uses, so no significant growth in those areas is anticipated. Yet many people choose to live in rural areas. To understand demand, in 1979 the County noted that there were over 17,000 platted, but undeveloped lots and concluded that there was ample room for growth. In 2004 the County adopted Deschutes County Coordinated Population Forecast 2000-2025 (see Section 4.2). As part of the population forecast, the County used Geographic Information Systems (GIS) to analyze the potential for new development based on existing and potential dwellings. That analysis showed the County could serve anticipated rural population with existing lots. However, it was noted that the number of growth -dependent variables over potential new development made the analysis inexact. Growth Potential As of 2010, the strong population growth of the last decade in Deschutes County was thought to have leveled off due to the economic recession. Besides flatter growth patterns, changes to State regulations opened up additional opportunities for new rural development. The following list identifies general categories for creating new residential lots, all of which are subject to specific State regulations. ■ New lots can be created in destination resorts ■ Some farm lands can be subdivided to permit one or two `non-farm' parcels ■ New lots can be created based on the property rights legislation known as Measure 37 and Measure 49 ■ New lots can be created through the addition of sewer systems ■ New lots can be created in Unincorporated Communities (see Chapter 4) ■ 2009 legislation permits a new analysis of agricultural designated lands ■ Existing large forest or rural residential lots can be subdivided ■ Exceptions can be granted from the Statewide Planning Goals ■ Some farm lands with poor soils that are adjacent to rural residential uses can be rezoned as rural residential ■ Some farm lands with poor soils can be rezoned into a new agricultural category with a smaller acreage requirement ■ Some farm and forest lands meeting the definition of OAR 660-004-005(3) but not satisfying the definitions of agricultural or forest lands contained in the Statewide Planning Goals and implementing administrative rules can be re -designated and rezoned to Rural Lands for low density rural development. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 3 RURAL GROWTH MANAGEMENT SECTION 3.2 RURAL DEVELOPMENT It is difficult to estimate how many additional lots could be created through these categories. Most of these possibilities are extremely site-specific requiring an analysis of each property. In community meetings for the 2008-2011 Plan update, the primary concerns raised over new growth were the impacts of destination resorts and non-farm dwellings. The wildcard in rural housing development is destination resorts (see Section 3.9). These developments are permitted on rural lands without taking a goal exception and are intended to attract tourists. State Statute on resorts allows them to have two houses for every overnight lodging unit, so the potential exists to add a considerable amount of new housing to rural Deschutes County. The challenge is that it is hard to analyze impacts from resort housing because it is not clear whether the housing is being used for full-time residences or second homes. Additionally, some of the second homes may become full-time residences when property owners retire. Non-farm refers to allowing one or two new parcels of up to five acres to split off of farm parcels as long as the remaining farm parcel retains the required acreage. This provides flexibility by allowing the creation of new rural housing while retaining the basic agricultural character of the area. Property rights Measure 37 could potentially have added a sizeable number of new lots, but as modified by Measure 49 the number is down considerably and at this point nearly impossible to track. Increased growth potential could follow the addition of sewer systems in south Deschutes County or in existing unincorporated communities, which could lead to smaller lot sizes. New lots can also be created in Unincorporated Communities, but only Tumalo and Terrebonne have the potential to add a substantial number of new lots. However, residents in those communities have expressed an interest in keeping their rural character (see Sections 4.5 and 4.6). Another opportunity for rural growth is found in Section 2.2 of this Plan, within a policy to initiate a study evaluating existing agricultural lands to determine which lands are unsuitable for farming and could be available for residential development. Other potential categories for new residential lots are not anticipated to add substantial new development. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2010 CHAPTER I COMPREHENSIVE PLANNING SECTION I.I INTRODUCTION S�ct�Ow 3.3 Rural, 1-%u.s�v�� Background Housing is a basic need that provides not just shelter, but connection to a wider community. A variety of housing types and price points ensures options for people at different life stages and needs. Oregon's statewide planning program directs cities to retain an adequate amount of land to accommodate residential growth. Generally counties are directed to protect farms, forests and other rural resources like wildlife while limiting new rural development. This section of the Plan looks specifically at housing on existing and potential new parcels and how the County can support a diverse and affordable housing supply. Housing inside urban growth boundaries is addressed in Statewide Planning Goal 10, Housing and OAR 660-008. Statewide Goal 2, Land Use and Goal 14, Urbanization both have sections that address rural housing, supplemented by OAR 660-004 and 660-014. These rules refine how new rural residential lots can be created. The Deschutes County housing policies provide the framework for residential development. The policies further delineate the role of the County in facilitating the availability of an affordable and quality housing stock within both urban and rural communities. Rural Residential Exception Areas In Deschutes County most rural lands are designated for farms, forests or other resources and protected as described in the Resource Management chapter of this Plan. The majority of the land not recognized as resource lands or Unincorporated Community is designated Rural Residential Exception Area. The County had to follow a process under Statewide Goal 2 to explain why these lands did not warrant farm or forest zoning. The major determinant was that many of these lands were platted for residential use before Statewide Planning was adopted. In 1979 the County assessed that there were over 17,000 undeveloped Rural Residential Exception Area parcels, enough to meet anticipated demand for new rural housing. As of 20190 any new Rural Residential Exception Areas need to be justified through definiti n of agriE ltuFal „F forest land er taking exceptions to farm, forest, public facilities and services and urbanization regulations, and following guidelines set out in the OAR. Rural Lands In 2019 the County amended its comprehensive plan to recognize opportunities to designate Rural Lands defined in OAR 660-004-005(3) in two specific areas: four subdivisions and Section 36 in the Exclusive Farm Use (EFU) and Forest Use zones platted prior to State enabling planning legislation and EFU lands near the City of Bend Urban Growth Boundary (UGB. Platted lots within these subdivisions and Section 36 are now committed to residential uses. Unfortunately, they are subject to strict resource zoning requirements dictated by State law for new dwellings, remodels, additions and accessory structures. A Rural Lands -10 zone customized for these subdivisions and Section 36 can incorporate rural residential zoning standards to permit these uses outright. Regarding EFU lands east of Bend's UGB, a customized Rural Lands -20 zone can establish minimum parcel sizes and discrete land uses that DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 3 RURAL GROWTH MANAGEMENT SECTION 3.3 RURAL HOUSING ensure parcels remain intact for a future Urban Reserve Area designation and/or UGB amendment. Rural Residential Exception Areas 2009 Source: County GIS data ■ 71,000 acres of Rural Residential Exception Area (including right-of-way) ■ 64,000 acres of Rural Residential Exception Area (excluding right-of-way) ■ 24,750 Rural Residential Exception Area lots ■ 18,100 Rural Residential Exception Area lots that are developed Future of Rural Housing in Deschutes County In looking at rural housing growth, it is important to find the balance between protecting rural values and protecting property rights. In community meetings some people expressed concern over the level of new development that has been allowed while others highlighted the restrictions on their property that do not permit it. Too much development can lead to the destruction of the qualities that bring people to Deschutes County, while too many restrictions keep out people who would choose a rural lifestyle. Housing Legality, Public Health and Safety One issue meriting attention is the need to be sure housing is legally developed. A house built without proper land use permits may not meet required setbacks or other regulations, causing legal disputes between neighbors. A house built without proper building permits could be constructed shoddily, causing safety issues. Land use and building permit requirements therefore are intended to safeguard the rights of property owners and neighbors. Historically, there have been problems in the County with substandard housing. Over the years substandard housing has become less of an issue. However, there are still areas where development has occurred without land use or building permits, leading to numerous code complaints. An area of south County, known as Section 36, has been identified as one place that the County could work closely with local residents to address health and safety issues. Another health and safety issue that came up in public meetings is the need to regulate large animals on residential lots. The idea is to control odors and flies that can accumulate and impact neighbors. Research on how large animals are regulated in other counties would provide some direction on this issue. Housing Diversity A challenge for the County given rural housing restrictions is how to support a diversity of housing to meet the needs of the community, while retaining the rural character important to residents. Deschutes County requires a 10 acre minimum lot size for new rural residential lots in order to protect the rural quality of life and its resources. Yet, the 10 acre minimum raises the cost of rural housing and may limit the rural lifestyle to households at the upper end of the income spectrum. Additionally much of the new rural housing being built is located in high-end destination resorts. This slant towards high priced rural housing is mitigated somewhat by the thousands of small lots that were platted before land use laws were enacted. These smaller lots provide an opportunity for less expensive housing. One way the County can address the need for housing options is to promote the idea of housing alternatives such as co -housing or accessory dwelling units. Currently these alternatives are not permitted by State regulations that protect rural lands. Co -housing involves creating a community through clustered housing. Accessory dwelling units, sometimes known as granny 2 DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 3 RURAL GROWTH MANAGEMENT SECTION 3.3 RURAL HOUSING flats, are small units accessory to the main housing. Regulated correctly, housing alternatives could provide flexibility in rural housing. The first step in permitting housing variety is to initiate a discussion with the State on how and where these types of housing would be appropriate. Another way to support a diversity of housing is to work closely with agencies and jurisdictions that promote it. The public corporation responsible for promoting affordable housing initiatives in Deschutes, Jefferson and Crook Counties is the Central Oregon Regional Housing Authority, also known as Housing Works. Organized under the Oregon Housing Authority Law (ORS 456), this agency provides affordable housing services to low income households. They also engage in public/private partnerships to provide and manage affordable housing. Cities are also involved in providing a diversity of housing. Promoting a variety of housing choices and mix of price points can be achieved through cooperating with Housing Works and local cities, the donation of County property, or other means. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 3 RURAL GROWTH MANAGEMENT SECTION 3.3 RURAL HOUSING Sect'�Ow 3.3 RAXraL + tORSLwg P000e9 Goals and Policies Goal I Maintain the rural character and safety of housing in unincorporated Deschutes County. Policy 3.3.1 The minimum parcel size for new rural residential parcels in Rural Residential Exception Areas shall be 10 acres. Policy 3.3.2 The minimum parcel size for new rural residential parcels in Rural Lands -10 zone shall be 10 acres. Policy 3.3.3 The minimum parcel size for new rural residential parcels in Rural Lands -20 zone shall be 20 acres. Policy 3.3.24 Incorporate annual farm and forest housing reports into a wider system for tracking the cumulative impacts of rural housing development. Policy 3.3.35 Address housing health and safety issues raised by the public, such as: a. The number of large animals that should be permitted on rural residential parcels; or b. The properties south of La Pine, in Township 22S, Range IOE, Section 36, many of which are not in compliance with planning and building codes. Policy 3.3.64 Encourage new subdivisions to incorporate alternative development patterns, such as cluster development, that mitigate community and environmental impacts. Policy 3.3.157 Maintain the rural character of the County while ensuring a diversity of housing opportunities, including initiating discussions to amend State Statute and/or Oregon Administrative Rules to permit accessory dwelling units in Exclusive Farm Use, Forest and Rural Residential zones. Goal 2 Support agencies and non -profits that provide affordable housing. Policy 3.3.86 Support Central Oregon Regional Housing Authority and other stakeholders to meet the housing needs of all Deschutes County residents. a. Assist as needed in coordinating and implementing housing assistance programs. b. Support efforts to provide affordable and workforce housing in urban growth boundaries and unincorporated communities. Policy 3.3.79 Utilize block grants and other funding to assist in providing and maintaining low and moderate income housing. 4 DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 3 RURAL GROWTH MANAGEMENT SECTION 3.3 RURAL HOUSING seot'oo. 3.:.:. R.u.raL L-avxols Background Rural Lands which are also known under State law, OAR 660-004-005(3) as "Non -Resource" are areas with an exceedingly low capacity to be managed for commercial agriculture and forestry activities Rural Lands do not meet the definitions of either agricultural land or forest lands found in Statewide Planning Goals 3 and 4 and the accompanying Oregon Administrative Rules due to the presence of Door soil conditions a lack of irrigation, climate conditions and other relevant factors including but not limited to past use Based on these conditions, Rural Lands do not warrant protection for resource use under state and local programs to protect agricultural and forest lands and may be made available for other uses. They differ from Rural Residential Exception Areas and other rural areas not planned and zoned for farm and forest activities Rural Lands are most often characterized by large tracts without an existing settlement pattern and supporting residential infrastructure. However, some areas contain platted subdivisions that existed prior to Senate Bill 100 and the Statewide Planning System. Over the Past decade Deschutes County has supported and participated in numerous state legislative processes and coordinated with the Department of Land Conservation and Development (DLCD) to study and legislatively update agricultural and forest land designations. Unfortunately, these efforts did not result in a clear path forward to undertake such a land use change Therefore in 2019 Deschutes County initiated its own process. The Comprehensive Plan already provides a general directive to consider "Non -Resource" lands proposals. To date, Deschutes County has amended its Comprehensive Plan and Zoning map five times to accommodate such a request. Deschutes County amended its Comprehensive Plan to recognize opportunities to designate Rural Lands defined in OAR 660-004-005(3) in two specific areas: four subdivisions and Section 36 in the Exclusive Farm Use (EFU) and Forest Use (F-2) zones platted prior to the State enabling planning legislation and EFU lands near the City of Bend Urban Growth Boundary (UGB) Platted lots within four subdivisions and Section 36 are now committed to residential uses Unfortunates they are subject to strict resource zoning requirements dictated by State law for new dwellings remodels additions and accessory structures. A Rural Lands -10 zone customized for these subdivisions and Section 36 can incorporate rural residential zoning standards to permit these uses outright Regarding EFU lands east of Bend's UGB, a customized Rural Lands -20 zone can establish minimum parcel sizes and discrete land uses that ensure parcels remain intact for a future Urban Reserve Area designation or UGB amendment. Deschutes County also amended the Comprehensive plan to analyze other locations for Rural Lands designations Following the adoption of Rural Lands -10 and Rural Lands -20 zones, Deschutes County will initiate community conversations with stakeholders throughout the county to discuss opportunities for other areas to receive Rural Lands designations. DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 3 RURAL GROWTH MANAGEMENT SECTION 3.11 RURAL LANDS seot'ovt, 3.ii R.u.raL Lavvols PoI.'C�'es Goal and Policies Goal I Allow the designation of Rural Lands in Deschutes County Rural Lands — General Policies Policv 3.1 1.1 A proposal_to designate Rural Lands may be initiated by either a property owner or Deschutes County. Policy 3 1 12 The purpose of the Rural Lands designation is to allow low intensity rural development. Policy 3 1 13 To qualify for a Rural Lands comprehensive plan designation and Rural Lands zoning a property must demonstrate: a The State's soil and definitional standards of agricultural land do not apply because: i A majority of the lot or parcel contains 51 % of Class VII or Vlll soils as classifieds the NRCS; ii. The site is not suitable for farm use: 1 It cannot be used for grazing or in coniunction with adjoining or nearby agricultural or grazing operations. 2 It has no availability of water for farm irrigation. 3 It cannot be combined with any other adiacent land for farming to occur 4 It is not intermingled with lands in Class I -VI soils. 5 It is unnecessary to allow adiacent properties to continue to function as agricultural land. b The State's soil and definitional standards of forest land or forest productivity potential do not apply by showing the entire parcel possesses a potential productivity of less than 20 cubic feet per acre per year, at culmination of mean annual increment for one or more tree species native to Deschutes County: c. It does not contain Goal 5 natural resources; d It is located in a fire -protection district or can be annexed into one; e It does not significantly affect a County or State transportation system consistent with Statewide Planning Goal 12; f If irrigation districts are impacted by a Rural Lands designation and if so, identify conditions of approval that should be placed on the property. Goal 2 Resolve resource zoning restrictions applied to subdivisionslap tted prior to Statewide planning legislation and Section 36 in Township 225, Range IOE Rural Lands — Committed Residential Use Policies Policy 3 1 14 The purposes of the Rural Lands -10 zone are to provide rural residential living environments; to provide standards for rural residential development; and to balance the public's interest in the management of community growth with the DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 RURAL GROWTH MANAGEMENT SECTION 3.11 RURAL LANDS protection of individual property rights through review procedures and standards. Policv 3.1 1.5 A single family dwelling or a manufactured home and their accessory uses shall be permitted outright Policy 3 1 16 The minimum parcel size for the Rural Lands -10 zone shall be 10 acres. Policy 3 1 17 The Rural Lands -10 zone is available only for the following properties committed to residential uses. a. Haner Park Subdivision b. Meadow Crest Acres Subdivision c Section 36 Township 22S. Range IOE d. Skyline Subdivision e Squaw Creek Canyon Recreational Estates F Addition Policy 3 1 18 Notwithstanding Policy 3 1 13.c lands committed to residential uses with significant Goal 5 natural resources are eligible for a Rural Lands -10 zone subject to an ESEE analysis. Goal 3 Retain rural properties east of the City of Bend's Urban Growth Boundary for future urbanization Rural Lands — Greater Bend Urban Growth Boundary Policies Policv 3.1 1.9 The purposes of the Rural Lands -20 zone is to provide standards for low densit rural land use and development; and to balance the public's interest in the management of future urbanization with the protection of individual property rights through review procedures and standards. Policy 3 1 110 The Rural Lands -20 zone is for eligible properties up to one mile from the City of Bend Urban Growth Boundary. Policy 3 1 I 1 1 The minimum parcel size for the Rural Lands -20 zone shall be 20 acres. Policy 3 1 112 A simile family dwelling or a manufactured home and their accessory uses shall be permitted outright. Policy -3.11.13 If a property is divided it shall be developed as a cluster development consistent with Count code governing cluster developments. Policy 3 1 114 Cluster development shall be allowed with an equivalent density of a five acre minimum lot size similar to Rural Residential and Multiple Use Agricultural zones. Policy 3 1 115 Cluster development applications shall be required to submit a shadow plat to account for future urbanization. Policy 3 1 I I6 Dedicated open space required for cluster development shall be made available for urbanization upon an Urban Growth Boundary amendment. Goal 4 Analyze other locations in Deschutes County for Rural Lands designations and corresponding zones Rural Lands — Other Locations DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 3 RURAL GROWTH MANAGEMENT SECTION 3.11 RURAL LANDS Policy 3 1 117 Upon adopting Rural Lands -10 and Rural Lands -20 zones. Deschutes County shall conduct community conversations throughout the county with stakeholders and residents to discuss opportunities for other areas to receive Rural Lands designations. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2U11 RURAL GROWTH MANAGEMENT SECTION 3.11 RURAL LANDS ES c°G © 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 Work Session of November 7 2018 DATE: October 31, 2018 FROM: Tarik Rawlings, Community Development, 541-317-3148 TITLE OF AGENDA ITEM: Potential Marijuana Production Appeal, 4288 NE 29Th Street, Redmond, Consideration of Order No. 2018-071 RECOMMENDATION & ACTION REQUESTED: Consider signature of Order # 2018-071 ATTENDANCE: Tarik Rawlings, CDD Staff SUMMARY: The Planning Division issued an administrative decision for marijuana production on October 31, 2018, determining the applicant met the applicable criteria. The decision becomes final if not appealed by 5:00 PM on November 13, 2018. The 150 -day period for issuance of a final local decision is February 6, 2019. Although no appeal has been filed yet, staff considers an appeal is likely based on public comments. STAFF MEMO Date: October 31, 2018 To: Board of County Commissioners From: Tarik Rawlings, Assistant Planner Re: Administrative Decision (File No. 247 -18 -000222 -CU) to Hear Potential Appeal The Board of County Commissioners (Board) will conduct a work session on November 7 at 1:30 PM and will consider hearing a potential appeal of an administrative decision (File No. 247 -18 -000222 - CU) approving a marijuana production application. I. Application On March 5, 2018, an application was filed for a Conditional Use Permit (CU) to establish a marijuana production facility at 4288 NE 29th Street, Redmond. The applicant requested approval to establish a marijuana production facility in the Multiple Use Agricultural (MUA10) Zone. The proposal consists of a maximum mature plant canopy size of 837 square -feet within one enclosed building. II. Decision The Planning Division issued an administrative decision for marijuana production on October 31, 2018, determining the applicant met the applicable criteria. Notice of the decision was sent to neighboring property owners and those that submitted comments and provided a mailing address. The decision becomes final if not appealed by 5:00 PM on November 13, 2018. III. Appeal Although no appeal has been filed yet, staff considers an appeal is likely based on public comments. IV. 150 -day Issuance of a Final Local Decision The 150 -day period for issuance of a final local decision is February 6, 2019. 117 NW Lafayette Avenue, Bend, Oregon 97103 1 P.O. Box 6005, Bend, OR 97708-6005 QN (541) 388-6575 @ cdd@deschutes .org @ www.deschutes.org/cd V. Board Options Section 22.28.050 of the Deschutes County Code authorizes the Board of County Commissioners to initiate review of any administrative action or a Hearings Body's decision within 12 days of the date of mailing of the final written decision of the Planning Director or lower Hearings Body. The 12th day following the mailing date of this decision is Tuesday, November 13, 2018, A Board Order (2018- 071) to initiate review is attached to this memo. The Board may set reasonable time limits on oral testimony at public hearings, pursuant to DCC 22.24.070. If the Board hears a potential appeal and sets time limits for testimony, staff will include those time limits in the notice of public hearing. Given the applicant's request to toll the review period, staff proposes a hearing date of January 16, 2019. The entire record as of October 31, 2018 is attached to this memo and is as follows: Table of Contents: 1. 2018-10-31 Administrative Determination (Findings & Decision) 247 -18 -000222 -CU 2. 2018-10-31 Notice of Decision 247 -18 -000222 -CU 3. 2018-10-30 Board Order 2018-071 4. 2018-10-29 Request to Toll - J. Culbreath (4th Request) 5. 2018-10-26 Letter from M. Hughes re Staff Questions (3rd Letter) 6. 2018-10-25 Letter from M. Hughes re Staff Questions (2nd Letter) 7. 2018-10-05 Request to Toll - J. Culbreath (3rd Request) 8. 2018-09-25 M. Hughes Email re Existing Medical Operation 9. 2018-09-07 Request to Toll - J. Culbreath (2nd Request) 10.2018-09-04 Public Comment - S. Hill -Cook 11.2018-09-04 Public Comment - C. Cook (2nd Comment) 12.2018-08-27 Public Comment -J. & C. Miller 13.2018-08-23 Public Comment - K. Olin 14.2018-08-22 Public Comment - S. Harrang 15.2018-08-22 Public Comment -J. Harrang 16.2018-08-22 Public Comment - D. Stumbaugh 17.2018-07-27 Request to Toll - J. Culbreath (1 st Request) 18.2018-07-27 Letter from M. Hughes re Staff Questions (1 st Letter) 19. 2018-04-25 Revised Will Serve Letter - Pacific Power 20.2018-04-25 Revised Structural Information 21.2018-04-25 Revised Site Plan 22.2018-04-25 Revised Odor & Noise Report 23.2018-04-25 Revised Floor Plan 247 -18 -000222 -CU Page 2 of 3 24.2018-04-25 Response to Incomplete Letter 25.2018-03-27 Incomplete Letter 26.2018-03-23 Agency Comment - COID 27.2018-03-21 Public Comment - C. Cook 28.2018-03-19 Land Use Action Sign Affidavit 29.2018-03-16 Agency Comment - Sr. Trans. Planner 30.2018-03-16 Agency Comment - Redmond Fire and Rescue 31.2018-03-16 Agency Comment - Building Division 32.2018-03-14 Notice of Application 33.2018-03-05 Application Materials - Burden of Proof 34.2018-03-05 Application Materials - Exhibit A 35. 2018-03-05 Application Materials - Exhibit B 36.2018-03-05 Application Materials - Exhibit C 37.2018-03-05 Application Materials - Exhibit D 38.2018-03-05 Application Materials - Exhibit E 39.2018-03-05 Application Materials - Exhibit F 40.2018-03-05 Application Materials - Exhibit G 247 -18 -000222 -CU Page 3 of 3 FINDINGS & DECISION FILE NUMBER: 247 -18 -000222 -CU OWNER: Joe C. & Charles W. Culbreath APPLICANT: Joe C. Culbreath PROPOSAL: An application for a Conditional Use permit for an approximately 1,059 - square -foot recreational marijuana production facility on a 5.22 -acre parcel in the Multiple Use Agricultural (MUA10) Zone. STAFF CONTACT: Tarik Rawlings, Assistant Planner I. APPLICABLE CRITERIA: Title 18 of the Deschutes County Code, County Zoning Chapter 18.32, Multiple Use Agricultural Zone Chapter 18.116, Supplementary Provisions Chapter 18.128, Conditional Uses Title 22 of the Deschutes County Code, the Development Procedures Ordinance II. BASIC FINDINGS: A. LOCATION: The subject property is located at 4288 NE 29th Street, Redmond; Assessor's Map 14-13-35A, tax lot 700. B. ZONING: The property is zoned Multiple Use Agricultural (MUA10). C. LOT OF RECORD: The subject property is a legal lot of record as it is platted Lot 4, Block 4 of the Lake Park Estates subdivision. D. SITE DESCRIPTION: The subject property is approximately 5.22 acres and developed with a single-family dwelling and detached accessory structures. NE 291h Street borders the property's western property line, from which the property is accessed. E. SURROUNDING LAND USES: All of the adjoining properties are within the MUA10 Zone. The nearest Exclusive Farm Use properties are located approximately 375 feet north of the subject property. A second Exclusive Farm Use property is located approximately 1,300 feet west of the subject property. The majority of the surrounding properties are developed with single-family residences and contain irrigated pasture land or small scale hobby farms. 117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005 Q, (541)388-6575 @cdd@deschutes.org (awww.deschutes.org/cd PROPOSAL: A Conditional Use permit to produce marijuana for recreational use licensed under the Oregon Liquor Control Commission (OLCC). The proposed use is to be contained within an existing 1,059 -square -foot accessory structure and will contain up to 837 square - feet of mature canopy. G. PUBLIC COMMENTS: The Planning Division mailed notice of the proposal to all property owners within 250 feet of the subject property. A public notice sign was posted on the property on March 19th, 2018. Eight (8) comment letters were received and made part of the record. The prominent concerns and objections include regulatory differences between medical and recreational marijuana production, structures used for marijuana production, water sourcing, and lighting, odor, and noise impacts. These comments and concerns are discussed in findings below. H. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several agencies and received the following comments. Clara Butler, Redmond Fire and Rescue Deputy Fire Marshal If there are questions regarding Fire Code issues, please contact the Redmond Fire and Rescue Deputy Fire Marshal at 541-504-5016 or email at clara.butler@redmondfireandrescue.org . Note: if processing occurs, the flowing fire codes will be required to be met. WATER: Area without Fire Hydrants: • NFPA 1142 Requirements o If the structure is being built in an area without a public water supply system, then the water flow requirements will come from NFPA 1142. o Note: The following information will need to be provided in order to determine accurate water flow requirements. ■ Building height, length and width ■ Use of the building ■ Type of construction ■ Whether the structure 100 sq ft or larger and within 50 feet of any other structures • Structures with Automatic Sprinkler systems - 2012 NFPA 1142 Chapter 7 o The authority having jurisdiction shall be permitted to waive the water supply required by this standard when a structure is protected by an automatic sprinkler system that fully meets the requirements of NFPA 13 ■ Fire Safety during Construction - 2014 OFC 501.4 o Approved fire department access roads, required water supply, fire hydrants, and safety precautions shall be installed and serviceable prior to and during the time of construction. • Fire Sprinkler Systems shall be installed per NFPA 13. 247 -18 -000222 -CU Page 2 of 24 o Separate permits will be required for the aboveground sprinkler system and the underground sprinkler supply line(s). o If there are greater than 20 sprinkler heads, the system is required to have a fire alarm monitoring system. 0 2014 OFC 903.3.7 Fire Department Connections: The location of fire department connections shall be approved by fire code official. The FDC/PIV shall not be under any combustible projections or overhangs. o NFPA 14 - 6.4.5.4 Fire department connections shall be located not more than 100 ft from the nearest fire hydrant connected to an approved water supply. o NOTE - If the Building is sprinklered, the sprinkler system will need to be designed to the specific use that will be occurring in the building. If the sprinkler system is not designed appropriately it will limit the types of businesses that can occupy the space. This also includes the height of storage in the building. In order to have high piled storage (greater than 12 ft), the sprinkler system shall be designed accordingly. ACCESS: • Premises Identification - 2014 OFC 505.1 o Approved numbers or addresses shall be placed on all new and existing buildings in such a position as to be plainly visible and legible from the street or road fronting the property. Said numbers shall contrast with their background and visible at night. Number/letter shall be a minimum of 4" high and a 0.5" stroke width. • Fire Apparatus Access Roads - 2014 OFC Section 503 & Appendix D o Fire apparatus access roads shall extend to within 150 ft of all portions of the building as measured by an approved route around the exterior of the building. o Fire apparatus access roads shall have an unobstructed width of not less than 20 feet and an unobstructed vertical clearance of not less than 13 feet 6 inches. o Fire apparatus roads shall be designed and maintained to support the imposed loads of 70,000 lbs and shall be surfaced so as to provide all-weather driving capabilities. o The required turning radius of a fire apparatus access road shall be 30 feet inside and 50 feet outside. o The grade of the fire apparatus access roads shall be within the limits established by the fire code official (10%). • Fire Lanes - 2014 OFC 503.3 & Appendix D o Approved signs or other approved notices shall be provided for fire apparatus access roads to identify such roads or prohibit the obstruction thereof. Such signs or notices shall be kept in legible conditions at all times. The stroke shall be 1 inch with letters 6 inches high and read "No Parking Fire Lane". Spacing for signage shall be every 50 feet. • Recommended to also (in addition to Fire lane signs) paint fire lane curbs in bright red paint with white letters. o Appendix D Section 103.6.1 Roads 20-26 Ft. Wide: Shall have Fire Lane signs posted on both sides of a fire lane. 247 -18 -000222 -CU Page 3 of 24 o Appendix D Section 103.6.2 Roads more than 26 Ft. Wide: Roads 26-32 ft wide shall have a Fire Lane signs posted on one side of the road as a fire lane. Aerial Access Roads - 2014 OFC Appendix D, Section 105 o Buildings or portions of buildings or facilities exceeding 30 feet in height above the lowest level of fire department vehicle access shall be provided with approved fire apparatus access roads and capable of accommodating fire department aerial apparatus. Overhead utility and power lines shall not be located within the aerial fire apparatus access roadways. At least one of the required access routes meeting this condition shall be located within a minimum of 15 feet and a maximum of 30 feet from the building, all access roads shall have an unobstructed width of not less than 26 feet and shall be positioned parallel to one entire side of the building. Dead -Ends - 2014 OFC Section 503.2.5 o Dead-end fire apparatus access roads in excess of 150 feet in length shall be provided with an approved area for turning around fire apparatus. Contact Redmond Fire & Rescue for requirements. o OFC Table D103.4 Dead Ends over 750 Feet- Require special approval. If approved, there shall be a turn -around no more than every 1000 feet with a bulb of 60 feet across and the width of the road shall be a minimum of 26 ft clear for fire apparatus. Additional Access - 2014 OFC Section 503.1.2 o The fire code official is authorized to require more than one fire apparatus access road based on the potential for impairment of a single road by vehicle congestion, conditions or terrain, climatic conditions or other factors that could limit access. • Emergency Access Road Gates - 2014 OFC Appendix D 103.5 o Minimum 20 feet wide. o Gates shall be swinging or sliding type. o Shall be able to be manually operated by one person. o Electric gates shall be equipped with a means of opening by emergency personnel & approved by fire official. o Locking devices shall be fire department Knox Key Switch purchased from A-1 Lock, Safe Co., Curtis Safe & Lock, on line at www.knoxbox.com, or contact Redmond Fire & Rescue for an order form. o Section 503.3: Install a sign on the gate "No Parking -Fire Lane" Key Boxes - 2014 OFC Section 506.1 o An approved key box shall be installed on all structures equipped with a fire alarm system and /or sprinkler system. Approved key boxes can only be purchased at A-1 Lock Safe Co., Curtis Safe and Lock, on line at www.knoxbox.com, or contact Redmond Fire & Rescue for an order form. 247 -18 -000222 -CU Page 4 of 24 • Commercial & Industrial Development - 2014 OFC Appendix D 104 o Buildings exceeding three stories or 30 feet in height shall have at least 2 means of fire apparatus access for each structure. o Where 2 access roads are required, they shall be placed not less than % the length of the overall diagonal dimension of the property or area to be served, measured in a straight line between accesses. Peter Russell, Deschutes -County Transportation Planner I have reviewed the transmittal materials for 247 -17 -000222 -CU for a marijuana production (growing) operation in the Multiple Use Agricultural (MUA10) zone at 4288 NE 29th St., aka 14-13-35A, Tax Lot 700. Deschutes County Code (DCC) at 18.116.330(B)(8) only requires proof of legal direct access to the property or access from a private easement for a grow of more than 5,000 square feet of mature canopy. The proposal is for 1,000 square feet of mature canopy, so the access requirement does not apply. The traffic study requirements of DCC 18.116.310 are not applicable for this marijuana production operation as the application is not going through site plan review and thus does not need to show compliance with DCC 18.124.0800), which references the County's traffic study requirements. The most recent edition of the Institute of Traffic Engineers (ITE) Trip Generation Handbook does not contain a category for marijuana production. In consultation with the Road Department Director and Planning staff, the County has determined the best analog use is Warehouse (Land Use 150) based on the storage requirements and employees of this activity. The applicant should provide proof a driveway access permit or as a condition of approval be required to obtain a driveway access permit to ensure compliance with DCC 17.48.210(A). Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of $3,937 per p.m. peak hour trip. The ITE indicates Warehouse generates 0.32 p.m. peak hour trips per 1,000 square feet, which in this instance would result in 0.34 p.m. peak hour trips (0.32 X 1.053). Thus the applicable SDC would be $1,339 (0.34 X $3,937). The SDC is due prior to issuance of certificate of occupancy; if a certificate of occupancy is not applicable, then the SDC is due within 60 days of the land use decision becoming final. Central Oregon Irrigation District COID has no facilities or water rights on the property. Deschutes County Building Safety Division The Deschutes County Building Safety Divisions code mandates that Access, Egress, Setbacks, Fire & Life Safety, Fire Fighting Water Supplies, etc. must be specifically addressed during the appropriate plan review process with regard to any proposed structures and occupancies. Accordingly, all Building Code required items will be addressed, when a specific structure, occupancy, and type of construction is proposed and submitted for plan review. The following agencies did not respond or had no comments: Deschutes County Road Department, Deschutes County Environmental Soils Division, Deschutes County Assessor, Redmond Area Parks & Rec District, Pacific Power & Light, Watermaster District 11, and Central Oregon Irrigation District. I. REVIEW PERIOD: This application was submitted on March 5th, 2018. The Planning Division deemed this application incomplete on March 27th, 2018. Upon submission and review of additional materials, the Planning Division deemed this application complete and accepted 247 -18 -000222 -CU Page 5 of 24 it for review on April 25th, 2018. The applicant then made three (3) requests to "toll" the 150 - day review period for 6 weeks (between July 27th and September 7th, 2018),4 weeks (between September 7th and October 5th, 2018), and 27 days (between October 5th and November 1", 2018), respectively. Staff calculates the 150th day on which the County must take final action on this application to be February 6th, 2019. III. FINDINGS A. CHAPTER 18.32. MULTIPLE USE AGRICULTURAL ZONE Section 18.32.030. Conditional Uses Permitted. I/. Marijuana production subject to the provisions of DCC 18.116.330. FINDING: The applicant proposes marijuana production subject to the provisions of DCC 18.116.330 and the Conditional Use standards of 18.128.015, discussed in detail 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: According to submitted application materials, the marijuana production facility is proposed within a structure less than 30 feet tall. This criterion will be met. 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. 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. 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. 247 -18 -000222 -CU Page 6 of 24 FINDING: The subject property has frontage along NE 29' Street, a local access road which requires a 20 -foot setback from the right-of-way. The side yards are along the north and south property lines and require a 20 -foot setback. The rear yard is along the east property line and the required setback is 25 feet. The applicant has submitted a site plan that indicates the existing structure will observe the following setbacks: 319 -foot front yard setback; 90 -foot south side yard setback; 294 -foot east rear yard setback; 225 -foot north side yard setback. These criteria will be met. D. The setback from the north lot line shall meet the solar setback requirements in DCC 18.116.180. FINDING: The property does have a north property line and, therefore, is subject to the solar setback requirements of DCC 18.116.180. A 30 -foot tall structure requires a 62.7 -foot solar setback. The existing structure is located more than 220 feet from the north property line. This criterion will be met. E. In addition to the setbacks set forth herein, anygreater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. FINDING: Any greater setbacks required by the Building Division will be addressed during building permit review. This criterion will be met. C. CHAPTER 18.116. SUPPLEMENTARY PROVISIONS Section 18.116.330, Marijuana Production. Processing, and Retailing A. Applicability. Section 18.116.330 applies to: 1. Marijuana Production in the EFU, MUA-10, and Rl zones. 2. Marijuana Processing in the EFU, MUA-10, TeC, TeCR, TuC, Tul, Rl, and SUBP zones 3. Marijuana Retailing in the RSC, TeC, TeCR, TuC, Tul, RC, Rl, SUC, SUTC, and SUBP zones. 4. Marijuana Wholesaling in the RSC, TeC, TeCR, TuC, RC, SUC, and SUBP zones. FINDING: The applicant has proposed marijuana production in an MUA10 Zone. This section applies to the proposal. B. Marijuana production and marijuana processing. Marijuana production and marijuana processing shall be subject to the following standards and criteria. 1. Minimum LotArea. a. In the EFU and MUA-10 zones, the subject legal lot of record shall have a minimum lot area of five (5) acres. FINDING: The subject property is 5.22 acres in size. This standard is met. 247 -18 -000222 -CU Page 7 of 24 Z Indoor Production and Processing. a. In the MUA-10 zone, marijuana production and processing shall be located entirely within one or more fully enclosed buildings with conventional or post framed opaque, rigid walls and roof covering. Use of greenhouses, hoop houses, and similar non- rigid structures is prohibited. b. In the EFU zone, marijuana production and processing shall only be located in buildings, including greenhouses, hoop houses, and similar structures. C. In all zones, marijuana production and processing are prohibited in any outdoor area. FINDING: The subject property is located in the MUA10 Zone. The proposed marijuana production facility is to be located entirely within one existing accessory structure which will be conventional or post framed, opaque, with rigid walls and have a roof covering. This standard will be met. 3. Maximum Mature Plant Canopy Size. In the EFU zone, the maximum canopy area for mature marijuana plants shall apply as follows. a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres to less than 20 acres in lot area: 5,000 square feet. The maximum canopy area for mature marijuana plants may be increased to 10,000 square feet upon demonstration by the applicant to the County that. i. The marijuana production operation was lawfully established prior to January 1, 2015, and ii. The increased mature marijuana plant canopy area will not generate adverse impact of visual, odor, noise, lighting, privacy or access greater than the impacts associated with a 5,000 square foot canopy area operation. C. Parcels equal to or greater than 20 acres to less than 40 acres in lot area: 10,000 square feet. d. Parcels equal to or greater than 40 acres to less than 60 acres in lot area: 20,000 square feet. e. Parcels equal to or greater than 60 acres in lot area: 40,000 square feet. FINDING: This criterion is not applicable because the subject property is in the MUA10 Zone. 4. Maximum Building Floor Area. In the MUA-10 zone, the maximum building floor area used for all activities associated with marijuana production and processing on the subject property shall be: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres: 5,000 square feet. 247 -18 -000222 -CU Page 8 of 24 FINDING: The subject property is 5.22 acres in size. The applicant proposes a structure that is approximately 1,059 square -feet in size. This criterion will be met. 5. Limitation on License/Grow Site per Parcel. No more than one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production or Oregon Health Authority (OHA) registered medical marijuana grow site shall be allowed per legal parcel or lot. FINDING: The proposed use includes one (1) OLCC-licensed marijuana production site. The following ongoing Condition of Approval has been added to ensure compliance with this criterion: OLCC License: Only one OLCC license shall be allowed per legal parcel for the marijuana production use. An Oregon Health Authority registered medical marijuana grow is not permitted on the site, unless a modification of conditions is approved. 6. Setbacks. The following setbacks shall apply to all marijuana production and processing areas and buildings: a. Minimum Yard Setback/Distance from Lot Lines: 100 feet. FINDING: The application materials include a site plan prepared by Stemach Design & Architecture. The submitted site plan depicts a buildable area where the existing structure is located that complies with the 100 -foot setback requirement from the east, west, and north property lines. However, the existing structure observes a 90 -foot, 8 -inch setback from the south property line. Consequently, the applicant requests an exception to the setback standard as discussed under subsection (c) below. b. Setback from an off-site dwelling: 300 feet. For the purposes of this criterion, an off-site dwelling includes those proposed off-site dwellings with a building permit application submitted to Deschutes County prior to submission of the marijuana production or processing application to Deschutes County. FINDING: The submitted site plan depicts the existing structure will be located more than 300 feet from neighboring off-site dwellings. This criterion will be met. C. Exception: Any reduction to these setback requirements may be granted by the Planning Director or Hearings Body provided the applicant demonstrates the reduced setbacks afford equal or greater mitigation of visual, odor, noise, lighting, privacy, and access impacts. FINDING: The existing structure will observe a 90 -foot, 8 -inch setback from the south property line. Therefore, the applicant is requesting a 9 -foot, 4 -inch exception to the 100 -foot setback standard under subsection (a). Each of the required issue areas associated with the exception criteria is addressed below. 247 -18 -000222 -CU Page 9 of 24 Visual The applicant proposes to use an existing structure for the marijuana production operation. The existing structure is located 90 feet, 8 inches from the south property line. Given the small, 10 -foot exception requested, the existing juniper trees between the proposed structure and the south property line, and the fact that the subject property is bordered to the south by a 20 -foot -wide alley, staff finds the use of the existing structure affords equal mitigation of visual impacts to the adjacent property to the south. Odor As noted in the findings under DCC 18.116.330(B)(10) below, the existing structure will include fan/filter combinations that will meet the required cubic feet per minute approval criteria. Additionally, the applicant indicates air will be vented to the north side of the production building. For these reasons, staff finds the existing building will afford equal mitigation of odor impacts to the adjacent property to the south. Noise As noted in the findings under DCC 18.116.330(B)(10) below, the engineer's letter indicates that the filtration fans and fan coils are located entirely inside the existing structure and will not be audible from the exterior. All other noise -producing outdoor equipment will run on an automated timer to disallow operation between the hours of 10:00 PM and 7:00 AM. Additionally, all fans, motors, or units related to heating, cooling or air circulation located outside of the existing structure will be located on the north end of the structure. For these reasons, staff finds the existing building will afford equal mitigation of noise impacts to the adjacent property to the south. Lighting Per the applicant, the existing building does not have any windows, or similar, which will allow light to escape the structure. For this reason, staff finds the existing building will afford equal mitigation of lighting impacts to the adjacent property to the south. Privacy Existing juniper trees provide additional buffering from the existing structure to the south property line. The requested exception is only for 9 feet, 4 inches and the adjacent property to the south is separated from the subject property by a 20 -foot -wide alley, as platted in the Lake Park Estates subdivision. For these reasons, staff finds the existing building will afford equal mitigation of privacy impacts to the adjacent property to the south. Access The production operation will utilize an existing driveway access, entering the subject property from the west off of NE 29th Street. The Deschutes County Senior Transportation Planner commented on the Notice of Application that the applicant should provide proof of a driveway access permit. A Condition of Approval has been added requiring the applicant to obtain a driveway access permit 247 -18 -000222 -CU Page 10 of 24 for the subject property. Staff finds the existing driveway access will eliminate any access impacts to the adjacent property to the south. For the reasons detailed above, staff finds use of the existing building will afford equal mitigation of visual, odor, noise, lighting, privacy, and access impacts. As a result, staff grants an exception to the 100 -foot setback to the south property line. 7. Separation Distances. Minimum separation distances shall apply as follows: a. The use shall be located a minimum of 1000 feet from: i. A public elementary or secondary school for which attendance is compulsory under Oregon Revised Statutes 339.010, et seq., including any parking lot appurtenant thereto and any property used by the school, ii. A private or parochial elementary or secondary school, teaching children as described in ORS 339.030(1)(a), including any parking lot appurtenant thereto and any property used by the school; iii. A licensed child care center or licensed preschool, including any parking lot appurtenant thereto and any property used by the child care center or preschool. This does not include licensed or unlicensed child care which occurs at or in residential structures; iv. A youth activity center; and V. National monuments and state parks. b. For purposes of DCC 18.116.330(B)(7), all distances shall be measured from the lot line of the affected properties listed in DCC 18.116.330(B)(7)(a) to the closest point of the buildings and land area occupied by the marijuana producer or marijuana processor. C. A change in use of another property to those identified in DCC 18.116.330(B)(7) shall not result in the marijuana producer or marijuana processor being in violation of DCC 18.116.330(B)(7) if the use is: i. Pending a local land use decision, ii. Licensed or registered by the State of Oregon; or iii. Lawfully established. FINDING: Staff utilized the Deschutes County Dial interactive property map to verify the uses of properties within 1,000 feet of the use. Staff found there are 32 properties within 1,000 feet of the subject property. None of the uses listed in DCC 18.116.330(B)(7)(a)(i-v) are found within 1,000 feet from the subject property. This criterion will be met. 8. Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana plants shall comply with the following standards. 247 -18 -000222 -CU Page 11 of 24 FINDING: The applicant proposes a maximum canopy size of approximately 837 square feet. Staff finds this section does not apply to the applicant's proposal. 9. Lighting. Lighting shall be regulated as follows: a. Inside building lighting, including greenhouses, hoop houses, and similar structures, used for marijuana production shall not be visible outside the building from 7.00 p.m. to 7.00 a.m. on the following day. b. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light -emitting part. C. Light cast by exterior light fixtures other than marijuana grow lights shall comply with DCC 15. 10, Outdoor Lighting Control. FINDING: The applicant states that the interior lights will not be visible from the outside of the building from 7:00 PM until 7:00 AM the following day, nor any other hours of the day, because the proposed facility will be fully contained within an opaque -walled, rigid -framed structure. The applicant's burden of proof explains there will be external lighting on the existing building. However, the light fixtures will be directed downward and not projected offsite, in compliance with DCC 15.10. The following Condition of Approval will be added to ensure compliance. Lighting_ The following lighting standards shall be met. Inside building lighting used for marijuana production shall not be visible outside the building from 7:00 PM to 7:00 AM on the following day. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light -emitting part. The light cast by exterior light fixtures other than marijuana growing lights shall comply with DCC 15.10, Outdoor Lighting Control. 10. Odor. As used in DCC 18.116.330(B)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors'use and enjoyment of their property. C. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. 247 -18 -000222 -CU Page 12 of 24 d. The odor control system shall. i. Consist of one or more fans. The fan(s) shall be sized for cubic feet per minute (CFM) equivalent to the volume of the building (length multiplied by width multiplied by height) divided by three. The filter(s) shall be rated for the required CFM; or ii. Utilize an alternative method or technology to achieve equal to or greater odor mitigation than provided by (i) above. e. The system shall be maintained in working order and shall be in use. FINDING: The application materials include a mechanical engineer's report dated April 23, 2018 from Robert James, PE, with ColeBreit Engineering'. Mr. James' analysis, provided in the application materials and referenced herein, details a system that uses a combination of fans with carbon filters. Based on the report provided by Mr. James, if the system described above is constructed within the guidelines and maintained per the manufacturer's recommendations, the odor control system will mitigate any odor exposed from the production facility so as to not unreasonably interfere with neighbors' use and enjoyment of their property. The following ongoing Condition of Approval has been added to ensure compliance with this criterion. Odor: The proposed odor control system must at all times prevent unreasonable interference with neighbors' use and enjoyment of their property. The odor control system shall be maintained in working order and shall be in use. 11. Noise. Noise produced by marijuana production and marijuana processing shall comply with the following. a. Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30 d8(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. b. Sustained noise from marijuana production is exempt from protections of DCC 9.12 and ORS 30.395, Right to Farm. Intermittent noise for accepted farming practices is permitted. FINDING: The application materials include a mechanical engineer's report dated April 23, 2018 from Robert James, PE, with ColeBreit Engineering. Mr. James' analysis states that the filtration fans and fan coils are located inside the structure and will not be audible from the exterior. All outdoor equipment, i.e., the heat pumps and AC units, will run on an automated timer to disallow operation between the hours of 10:00 PM and 7:00 AM. According to Mr. James' analysis, the calculated ' Mr. James is a Registered Professional Mechanical Engineer with the State of Oregon (certificate no. 65108PE). 247 -18 -000222 -CU Page 13 of 24 combined sound pressure levels of all the proposed equipment will be in compliance with the above noise standard. The following ongoing Condition of Approval has been added to ensure compliance with this criterion. Noise: Sustained noise from mechanical equipment used for heating, ventilation, air conditioning, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 PM and 7:00 AM the following day. 12. Screening and Fencing. The following screening standards shall apply to greenhouses, hoop houses, and similar non -rigid structures and land areas used for marijuana production and processing. a. Subject to DCC 18.84, Landscape Management Combining Zone approval, if applicable. b. Fencing shall be finished in a muted earth tone that blends with the surrounding natural landscape and shall not be constructed of temporary materials such as plastic sheeting, hay bales, tarps, etc., and shall be subject to DCC 18.88, Wildlife Area Combining Zone, if applicable. C. Razor wire, or similar, shall be obscured from view or colored a muted earth tone that blends with the surrounding natural landscape. d. The existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit maintenance of existing lawns, removal of dead, diseased or hazardous vegetation, the commercial harvest of forest products in accordance with the Oregon Forest Practices Act, or agricultural use of the land. FINDING: The subject property is not located within either the Landscape Management Combining Zone or Wildlife Area Combining Zone. No razor wire or any other type of fencing is proposed. No vegetation removal is proposed. These criteria will be met. However, to ensure continued compliance, the following ongoing Condition of Approval will be added to the decision. Screening: The existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit the maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. 13. Water. The applicant shall provide: a. A copy of a water right permit, certificate, or other water use authorization from the Oregon Water Resource Department, or 247 -18 -000222 -CU Page 14 of 24 b. A statement that water is supplied from a public or private water provider, along with the name and contact information of the water provider, or C. Proof from the Oregon Water Resources Department that the water to be used is from a source that does not require a water right. FINDING: According to the submitted Burden of Proof, the applicant is in the process of obtaining water rights from the Oregon Water Resource Department for the existing well on the property. The applicant states that they will not use any well water prior to obtaining ground water rights and will have water hauled to the subject property from off-site by Bend Water Hauling LLC during the interim. The application materials include two (2) Will Serve Letters from Bend Water Hauling provided by Kimberlee Nunez, a Manager/Member of Bend Water Hauling LLC, dated January 30th, 2018 and February 6th, 2018. The Will Serve Letters indicate that 15,000 gallons of potable water will be delivered each week to the applicant for use in the production operation. The Will Serve Letters indicate that the potable water is derived from sources based in Avion Water and City of Redmond jurisdictions. Staff finds the above criterion will be met. Staff has added the following Condition of Approval to ensure compliance with this requirement. Water: The use of water from any source for marijuana production shall comply with all applicable state statutes and regulations including ORS 537.545 and OAR 690-340-0010. 14. Fire protection for processing of cannabinoid extracts. Processing of cannabinoid extracts shall only be permitted on properties located within the boundaries of or under contract with a fire protection district. FINDING: No processing is proposed. Therefore, staff finds this section does not apply. 15. Utility Verification. A statementfrom each utility company proposed to serve the operation, stating that each such company is able and willing to serve the operation, shall be provided. FINDING: Pacific Power provided a "will serve" letter dated April 9th, 2018. The letter states that while the existing facility is currently being provided with electricity, Pacific Power expresses a willingness to serve the proposed production operation in accordance with applicable rates, rules and regulations. This standard is met. 16. Security Cameras. If security cameras are used, they shall be directed to record only the subject property and public rights-of-way, except as required to comply with requirements of the OLCC or the OHA. FINDING: In the application materials, the applicant has acknowledged this requirement. Staff finds this criterion will be met with the imposition of the following Condition of Approval. 247 -18 -000222 -CU Page 15 of 24 Security Cameras: Security cameras shall be directed to record only the subject property and public rights-of-way, except as required to comply with requirements of the OLCC. 17. Secure Waste Disposal. Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee or OHA Person Responsible for the Grow Site (PRMG). FINDING: The applicant proposes to use a secure receptacle within a limited access area of the production facility. The following Condition of Approval will be added to ensure compliance with this criterion. Waste: Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee. 18. Residency. In the MUA-10 zone, a minimum of one of the followingshall reside in a dwelling unit on the subject property. - a. An owner of the subject property, b. A holder of an OLCC license for marijuana production, provided that the license applies to the subject property, or C. A person registered with the ORA as a person designated to produce marijuana by a registry identification cardholder, provided that the registration applies to the subject property. FINDING: Both subject property owners, Joe C. Culbreath and Charles W. Culbreath, will live on site. This criterion will be met. 19. Nonconformance. All medical marijuana grow sites lawfully established prior to June 8, 2016 by the Oregon Health Authority shall comply with the provisions of DCC 18.116.330(B)(9) by September 8, 2016 and with the provisions of DCC 18.116.330(8)(10-12, 16, 17) by December 8, 2016. FINDING: Staff finds that this criterion supports multiple readings and that this case is matter of first impression on how to read this criterion. Staff summarizes two plausible readings as follows: 1) Where a property proposed for recreational marijuana production and processing has an existing medical grow site, the applicant as part of a recreational application is required to demonstrate: a. The medical grow site was lawfully established prior to June 8, 2016, b. The medical grow site complied with the provisions of DCC 18.116.330(B)(9) by September 8, 2016, and c. The medical grow site complied with the provisions DCC 18.116.330(B)(10-12, 16, 17) by December 8, 2016. 247 -18 -000222 -CU Page 16 of 24 Under this reading, failure to make these demonstrations would be a basis for denial of a new application for recreational production. This reading would be unusual, in that staff is unaware of any other circumstance where a property owner's compliance with criterion for a use to be extinguished (medical grow) impacts their eligibility for a new use (recreational production). In an alternative reading: 2) Section (13)(19) applies only to ongoing marijuana production at non -conforming medical grow sites. Under this reading, lawfully established medical marijuana grow sites are identified as a type of non-conformingz or "grandfathered" use and section (B)(19) imposes additional requirements for the continuation of these uses. Staff finds this second reading is more plausible and that the legislative history indicates that the Board intended to apply the requirements and timings of (13)(19) to existing medical grows. Staff cites the following items in Board records from immediately prior to the June 1, 2016 adoption of (13)(19) under Ord. 2016-016: May 11, 2016 Press Release by Whitney Hale on behalf of the Board: ... The new regulations will take effect 90 days after their second reading. At that time, the County will require existing medical marijuana growers to fully comply ( unless exempt by state law) with all new regulations within six months of the date that the new regulations are adopted. However, existing medical growers will need to comply with lighting standards that are outlined in new regulations as soon as the new regulations go into effect. May 11, 2016 - Minutes of Deliberations on Marijuana Land Use Regulations Regarding grandfathering in any uses but requiring screening or changes in lighting, Mr. Lelock asked how long the Board wants to allow for compliance. Commissioner DeBone feels that regarding lights, they should go with the dark skies rules. He does not want to allow a lot of time for compliance. Medical should comply within six months. Most will not have a problem with this. He does not want to wait a year; it should be six months from the effective date of the ordinances. Commissioner Baney said that 1598 relates to medical establishments and the Board has to grandfather them. Mr. Lelack agreed, but only relating to setbacks. Mr. Martin said the County cannot impose a setback for an agricultural building that is licensed for medical and recreational if constructed prior to July 1, 2015, if it was registered before January 1, 2015 for medical; it would need opaque walls and a roof. The County cannot prohibit the use of that building. Commissioner Baney said that these were lawfully established and are outside the Board's purview. Chair Unger stated they can impose odor and noise standards. I DCC 18.04.030 - "Nonconforming structure or use" means a lawful existing structure or use at the time DCC Title 18 or any amendment thereof becomes effective which does not conform to the requirements of the zone in which it is located. 247 -18 -000222 -CU Page 17 of 24 Staff, therefore, finds that (13)(19) implemented regulations for ongoing marijuana production at non -conforming medical grow sites and does not act as criteria where an existing medical marijuana site is proposed to be extinguished as part of a proposal for recreational production. The present applicant proposed to cease medical marijuana production by November 1, 2018. Under DCC 18.116.030(B)(5), "No more than one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production or Oregon Health Authority (OHA) registered medical marijuana grow site shall be allowed per legal parcel or lot." As a Condition of Approval, the applicant shall cease medical marijuana production on the subject property upon receipt of an OLCC license for marijuana production. Staff notes that, to the extent the existing medical operation is not presently compliant with (B)(19), the property may be subject to DCC 22.20.015, which could preclude issuance of the present approval under 22.20.015(A)(3). However, staff finds that any such non-compliance would be remedied under the mandatory cessation of the medical marijuana production pursuant to Condition W" of this decision. Under 22.20.015(D)(1), the present land use permit may be issued: D. A permit or other approval, including building permit applications, maybe authorized if: 1. It results in the property coming into full compliance with all applicable provisions of the federal, state, or local laws, and Deschutes County Code, including sequencing of permits or other approvals as part of a voluntary compliance agreement, Staff also notes that the applicant has argued that the existing medical marijuana operation is compliant with (B)(19). Staff finds that the status of the existing medical marijuana operation is not the subject of the present application and that this decision makes no determination on the non- conforming status of that operation. 20. Prohibited Uses. b. In the MUA-10 Zone, the following uses are prohibited. i. Commercial activities in conjunction with farm use when carried on in conjunction with a marijuana crop. C. In the EFU, MUA-10, and Rural Industrial zones, the following uses are prohibited on the same property as marijuana production: i. Guest Lodge. ii. Guest Ranch. iii. Dude Ranch. iv. Destination Resort. V. Public Parks. vi. Private Parks. vii. Events, Mass Gatherings and Outdoor Mass Gatherings. 247 -18 -000222 -CU Page 18 of 24 viii. Bed and Breakfast. ix. Room and Board Arrangements. FINDING: The applicant has indicated that none of the prohibited uses identified in this section are proposed or already in place. To ensure compliance with this criterion, the following Condition of Approval will be added. Prohibited Uses: The uses listed in DCC 18.116.330(B)(20) shall be prohibited on the subject property so long as marijuana production is conducted on the site. D. Annual Reporting 1. An annual report shall be submitted to the Community Development Department by the real property owner or licensee, if different, each February 1, documenting all of the following as of December 31 of the previous year, including the applicable fee as adopted in the current County Fee Schedule and a fully executed Consent to Inspect Premises form: a. Documentation demonstrating compliance with the: i. Land use decision and permits. ii. Fire, health, safety, waste water, and building codes and laws. iii. State of Oregon licensing requirements. b. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC 18.116.330(C)(1)(a) shall serve as acknowledgement by the real property owner and licensee that the otherwise allowed use is not in compliance with Deschutes County Code, authorizes permit revocation under DCC Title 22, and may be relied upon by the State of Oregon to deny new or license renewal(s) for the subject use. C. Other information as may be reasonably required by the Planning Director to ensure compliance with Deschutes County Code, applicable State regulations, and to protect the public health, safety, and welfare. d. Marijuana Control Plan to be established and maintained by the Community Development Department. e. Conditions of Approval Agreement to be established and maintained by the Community Development Department. f. This information shall be public record subject to ORS 192.502(17). FINDING: Compliance with the annual reporting obligation of this section is required. The following ongoing Condition of Approval will be added to ensure compliance with this criterion. Annual Reporting_ The annual reporting requirements of DCC 18.116.330(D) shall be met. 247 -18 -000222 -CU Page 19 of 24 D. 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, FINDING: The subject property is approximately 5.22 acres and developed with a single-family dwelling and detached accessory structures. The property is accessed via NE 29th Street, which also fronts the subject property. The site has a moderate population of trees and native ground cover. The design of the proposed use, a marijuana production facility, includes an approximately 1,059 - square -foot accessory structure that is located over 100 feet from the north, east, and west property lines. The accessory structure is located 90 feet, 8 inches from the south property line. Use of the existing structure will preclude the need to grade or excavate on-site for the building. The existing structure is located in a topographically -depressed area of the property, which limits the structure from being viewed from NE 29th Street to the west. The operating characteristics include plant growth and harvesting in an opaque, odor -controlled structure with climate control facilities that have been certified by an engineer to limit noise and odor. Staff finds that the site presents no design or operational constraints and is suitable for the proposed use. Z. Adequacy of transportation access to the site, and FINDING: The subject property is adjacent to, and accessed by NE 29th Street. The proposed site plan depicts an emergency ingress/egress driveway connected to NE 29th Street. The Deschutes County Senior Transportation Planner commented on the Notice of Application that the applicant should provide proof of a driveway access permit. As stated above, a Condition of Approval has been added requiring the applicant to obtain a driveway access permit for the subject property. Based on comments from the County's Transportation Planner, staff finds the proposed use is not required to comply with traffic study requirements of DCC 18.116.310. Additionally, no comments were submitted by the Transportation Planner or Road Department indicating the use will exceed the capacity of the county road system. Thus, staff finds the transportation access to the site is adequate. 3. The natural and physical features of the site, including, but not limited to, general topography, natural hazards and natural resource values. 247 -18 -000222 -CU Page 20 of 24 FINDING: The subject property is approximately 5.22 acres and developed with a single-family dwelling and detached accessory structures. The site has a moderate population of trees and native ground cover. According to the application materials, the location of the existing building is designed to take advantage of natural features of the site. The existing vegetation on the subject property will remain intact for screening purposes. Use of the existing building will preclude the need for substantial additional grading or excavation on-site. Staff finds the site presents no topographical constraints, is not subject to any unusual natural hazards, contains no natural resources, and, therefore, is suitable for the proposed use. 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 subject property is located in an area consisting primarily of rural residential properties, with irrigated pastureland and some hobby farms. Staff finds the projected uses in the area will likely include additional single-family dwellings on any vacant properties zoned MUM 0 and agricultural uses. Staff is unaware of any other projected uses on surrounding properties. Site, Design and Operating Characteristics As discussed above, staff finds the proposed marijuana production facility will not result in lighting, noise, odor, transportation access or visual impacts. Additionally, use of an existing building will preclude the need for any substantial excavation or grading, which could impact neighboring properties. For these reasons, staff finds the site, design and operating characteristics of the proposed facility will be compatible with existing and projected uses on surrounding properties. Further, staff finds that the proposed use would not directly impede the use of surrounding properties for residential and agricultural use, as it would not prevent or restrict development of otherwise lawful uses in the surrounding zones. Transportation Access As previously mentioned, the site is accessed by a driveway stemming from NE 291h Street to the west. However, the proposed use is of a limited size and scale such that no traffic impacts are anticipated. No infrastructure deficiencies were identified by public agencies. Staff finds there is no evidence in the record that the small-scale facility would generate a significant number of additional trips or ongoing heavy truck traffic. Again, the County's Transportation Planner commented on the Notice of Application that the applicant should provide proof of a driveway access permit. As stated above, a Condition of Approval has been added requiring the applicant to obtain a driveway access permit for the subject property. Natural and Phusical Features Based on staffs review of aerial photographs of the area, staff finds the surrounding lands to have similar characteristics as the subject property: generally level, moderately vegetated with sage brush and juniper trees, some irrigated pasture land or hobby farms, no apparent natural hazards 247 -18 -000222 -CU Page 21 of 24 and no unique or significant physical features. Given the low intensity of expected use, staff finds the proposed use will be compatible with the natural and physical features on surrounding lands. C. These standards and any other standards of DCC 98.128 may be met by the imposition of conditions calculated to insure that the standard will be met. FINDING: Staff finds any approval of the proposed use shall be subject to the Conditions of Approval set forth at the end of the final decision. IV. SYSTEM DEVELOPMENT CHARGE Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of $3,937 per p.m. peak hour trip. The ITE indicates Warehouse generates 0.32 p.m. peak hour trips per 1,000 square feet, which in this instance would result in 0.34 p.m. peak hour trips (0.32 X 1.053). Thus the applicable SDC would be $1,339 (0.34 X $3,937). The SDC is due prior to issuance of certificate of occupancy; if a certificate of occupancy is not applicable, then the SDC is due within 60 days of the land use decision becoming final. V. CONCLUSION Based on the application materials submitted by the applicant and the above analysis, staff concludes this application for a marijuana production facility in the MUA10 Zone can conform to the standards for approval. Other permits may be required. The applicant is responsible for obtaining any necessary permits and meeting the requirements of the Deschutes County Building Safety Division, the Deschutes County Environmental Soils Division and the Deschutes County Road Department, as well as obtaining any required state and federal permits. VI. DECISION APPROVAL, subject to the following Conditions of Approval. VII. CONDITIONS OF APPROVAL A. Use & Location: This approval is based upon the application, site plan, specifications, and supporting documentation submitted by the applicant. Any substantial change in this approved use will require review through a new land use application. ONGOING CONDITIONS OF APPROVAL B. OLCC License: Only one OLCC license shall be allowed per legal parcel for the marijuana production use. An Oregon Health Authority registered medical marijuana grow is not permitted on the site, unless a modification of conditions is approved. 247 -18 -000222 -CU Page 22 of 24 C. Access: The applicant shall obtain a driveway access permit for the subject property. D. Lighting: The following lighting standards shall be met. Inside building lighting used for marijuana production shall not be visible outside the building from 7:00 PM to 7:00 AM on the following day. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light -emitting part. The light cast by exterior light fixtures other than marijuana growing lights shall comply with DCC 15.10, Outdoor Lighting Control. E. Odor: The proposed odor control system must, at all times, prevent unreasonable interference with neighbors' use and enjoyment of their property. The odor control system shall be maintained in working order and shall be in use. F. Noise: Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 PM and 7:00 AM the following day. G. Screening: The existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit the maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. H. Water: The use of water from any source for marijuana production shall comply with all applicable state statutes and regulations including ORS 537.545 and OAR 690-340-0010. I. Security Cameras: Security cameras shall be directed to record only the subject property and public rights-of-way, except as required to comply with requirements of the OLCC. J. Waste: Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee. K. Prohibited Uses: Prohibited Uses: The uses listed in DCC 18.116.330(B)(20) shall be prohibited on the subject property so long as marijuana production is conducted on the site. L. Annual Reporting: The annual reporting requirements of DCC 18.116.330(D) shall be met. M. The applicant shall cease medical marijuana production on the subject property upon receipt of an OLCC license for marijuana production. VII. DURATION OF APPROVAL: The applicant shall initiate the use within two (2) years of the date this decision becomes final, or obtain approval of an extension under Title 22 of the County Code, or this approval shall be void. 247 -18 -000222 -CU Page 23 of 24 This decision becomes final twelve (12) days after the date of mailing, unless appealed by a party of interest. DESCHUTES COUNTY PLANNING DIVISION 1 . Written by: Tarik Rawlings, Assistant Planner Reviewed by: Will Groves, Senior Planner 247 -18 -000222 -CU Page 24 of 24 ADJACENT PROPERTY, EXISTING BUILDING ADJACENT PROPERTY, EXISTING BUILDING ADJACENT PROPERTY, EXISTING BUILDING II NEYUCCA AVE. EXISTING 'r GREENHOUSE ,[STING _ )ILDING ® EXISTING SHED EXISTING SHED II II II mIi II II I IIs l I I ADJACENT PROPERTY, EXISTING BUILDING ADJACENT PROPERY. EXISTING BUILDING `Q) ___—_____ _ ADJACENT PROPERY, EXISTING BUILDING 'I i' I ,I PROPERTY, UILDING II II SITE PLAN t SITE PLAN GENERAL NOTES A IREFER To CIVIL DRAWINGS N"""" DRAINAGE FOAB HORIZONTAL OTROI. AND PAVING ELEVATIONS, PUBLIC WORK IMPROVEMENTS. AND SITE UTILITIES. REFER TO LANDSCAPE DRAWINGS FOR PLANTING AND IRRIGATION DESIGN. REFER TO STRUCTURAL DRAWINGS FOR FOUNDATION AND SLAB DESIGN, B. SIDEWALKS AND RAMPS SHALL BE CONSTRUCTED TO THE FOLLOWING REQUIREMENTS: 1. MAX. CROSS SLOPE OF SIDEWALKS/LANDINGS: 1:50 2. MAX. SLOPE OF SIDEWALKS: 1:20 3. MAX. SLOPE Of RAMPS: 1:12 4. 2% MAX. SLOPE IN ANY DIRECTION OF ACCESSIBLE PARKING STALLS 5. 2% MAX. SLOPE FOR 5'-0" IN DIRECTION OF TRAVEL AT ALL BUILDING ENTRANCES C. LIMITS OF WORK: THE CONTRACTOR SHALL CONFINE OPERATIONS AT THE SITE TO AREAS PERMITTED BY LAW. ORDINANCES, PERMITS AND THE CONTRACT DOCUMENTS. D. STAGING AREA: THE CONTRACTOR AND SUBCONTRACTORS SHALL LIMIT STORAGE OF MATERIALS AND PORTABLE FIELD OFFICES WITFIN TFIE AREAS APPROVED BY THE AHJ. E. GENERAL CONTRACTOR SHALL TAKE CARE T TO DAMAGE OR DISRUPT EXISTING UTILITIES, NCLOUDING DRAINS, WHILE EXCAVATING OR GRADING DURING CONSTRUCTION. CONFIRM LOCATION OF EXISTING UTILITIES OF ADJACENT PROPERTIES. F. PRIOR TO START OF WORK THE CONTRACTOR SHALL COORDINATE WITH EACH RESPECTIVE GOVERNING AUTHORITY IN VERIFYING THE LOCATION (INVERT ELEVATIONS, HORIZONTAL CONTROLS, EASEMENTS) OF EXISTING SANITARY AND STORM SEWER, WATER, NATURAL GAS, ELECTRICAL, FIBER OPTIC, TELEPHONE, OVERHEAD POWER LINES AND OTHER UTILITY SYSTEMS, BOTH ONSITE ANDOFFSITE THE RACTOR SHALL INFORMATION COMPARE MATION WITH TTHECON RACT DOCUMENTSFA UTILITY CONSTRUCTION CONFLICT IS DISCOVERED BETWEEN THE UTILITY INFORMATION OBTAINED AND THE CONTRACT DOCUMENTS, NOTIFY THE ARCHITECT ltAMEDIATELY. G. ENAERGENCYVEHICUE ACCESS' THE MAINTAIN FIRE TRUCK ACCESS TO THE SIETTH O GHOUTL THE CONSTRUCTION PROCESS UNLESS AN ALTERNATE PLAN IS APPROVED BY THE FIRE DEPARTMENT. TEMACH Design + Architecture stemachdesign.COM 541.647.5661 550 SW Industrial Way, Ste 135 Bend, OR 97702 (c) Stemech Oesgo +Archive ture r rn O o v N DATE 2/21 JOB JOB G N 1II005 4 r^) STATUS CTS v LL Review N w 0 NREVISION REVISION NO. DATE I�co A101 4288 NE 29th