2019-88-Ordinance No. 2019-005 Recorded 3/11/2019Recorded in Deschutes County CJ2019-88
Nancy Blankenship, County Clerk
Commissioners' Journal 03/08/2019 4:07:39 PM
1111111111111111111111111111
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Deschutes County Code
Title 17, Chapter 17.16.105, to identify entities
besides the County Road Department which can
maintain roads which provide direct access to
subdivisions.
ORDINANCE NO. 2019-005
WHEREAS, applicant Deschutes County Planning Division initiated an amendment (Planning Division
File No. 247 -18 -000872 -TA) to the Deschutes County Code (DCC) Title 17, Chapter 17.16.105, Access to
Subdivisions; and
WHEREAS, the Deschutes County Planning Commission reviewed the proposed changes on December
13, 2018, and forwarded to the Deschutes County Board of County Commissioners ("Board"), a unanimous
recommendation of approval; and
WHEREAS, the Board considered this matter after a duly noticed public hearing on January 30, 2019,
and concluded that the public will benefit from the proposed changes to the Deschutes County Code Title 18;
now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. DCC 17.16.105, Access to Subdivisions, is amended to read as
described in Exhibit "A" attached and incorporated by reference herein, with new language underlined and
language to be deleted in Neagh.
Section 2. FINDINGS. The Board adopts as its findings, Exhibit "B", attached and incorporated by
reference herein.
PAGE 1 OF 2 - ORDINANCE NO. 2019-005
l
Dated this of 2019 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTE,
ording ecretary
Date of 1St Reading: 0 day of
Date of 2nd Reading:(f day of
Commissioner
1
PHINDERSON, Chair
PATTY ADAIR, Vice Chair
ANTHON DEBONE
2019,
2019.
Record of Adoption Vote:
Yes No Abstained Excused
Philip G. Henderson %/.
Patti Adair
Anthony DeBotte
Effective date:
day of
PAGE 2 OF 2 - ORDINANCE NO. 2019-005
, 2019.
EXHIBIT A
17.16.105. Access to Subdivisions.
No propos -d subdivision shall be approved unless it would be accessed by roads constructed to
government. This standard is met if the subdivision would have direct access to an improved
collector or arterial or in cases where the subdivision has no direct access to such a collector or
arterial, by demonstrating that the road accessing the subdivision from a collector or arterial meets
(Ord. 93-012 §19(A), 1993)
17.16.105. Access to Subdivisions.
No proposed subdivision shall be approved unless it would be accessed by roads constructed to
County standards and by roads under one of the following conditions:
A. Public roads with maintenance responsibility accepted by a unit of local or state government
or assigned to landowners or homeowners association by covenant or agreement; or
B. Private roads, as permitted by DCC Title 18, with maintenance responsibility assigned to
landowners or homeowners associations by covenant or agreement pursuant or ORS
105.175.
C. This standard is met if the subdivision would have direct access to an improved collector or
arterial or in cases where the subdivision has no direct access to such a collector or arterial,
by demonstrating that the road accessing the subdivision from a collector or arterial meets
relevant County standards that maintenance responsibility for the roads has been assigned as
required by this section.
(Ord. 2019-005, 2019)
EXHIBIT B
DRAFT FINDINGS TO AMEND DESCHUTES COUNTY CODE 17.16.105
(Access to Subdivisions)
I. Background
Deschutes County historically has required subdivisions to be 1) accessed, by roads
built to County standards and 2) by roads accepted for maintenance by a unit of local
or state government. The Road Department is responsible for the maintenance and
operations of public roads accepted into the County -maintained system.
As much of Deschutes County is in federal ownership, which cannot be taxed, the
federal government has shared timber revenues with Oregon counties since 1908.
Federal law required 25 percent of timber harvest receipts from federal lands be
shared with counties. With the decline of timber harvests in the early 1990s, those
revenues dropped steeply. To offset that loss, Congress passed the Secure Rural
Schools (SRS) and Community Self -Determination Act of 2000. The program was
designed to reduce federal payouts over time before expiring. As that program began
to phase out, the Road Department's budget began to suffer since SRS funding was
almost a third of the Road Department's budgeted revenue.
The Board found the declining loss of federal revenue meant the Road Department
could find it challenging to adequately maintain the County road system, let alone add
mileage to the County -maintained system. The Board passed a moratorium (Board
Resolution 2006-049) stating the County would no longer accept roads into the County -
maintained system until adequate replacement funding was found. The Board
modified the moratorium (Board Resolution 2009-118) to give the Board discretion to
accept arterials and collectors into the system of County -maintained roads.
Board Ordinance 2019-005 will amend the text of DCC 17.16.105 to reflect the Board's
moratorium on roads being accepted into the County -maintained system and how
Planning has been addressing the issue in findings for rural subdivisions.
II. Current Deschutes County Practice for Findings for DCC 17.16.105
Below is the existing language of DCC 17.16.105 regarding access to subdivisions in the
rural county and/or unincorporated communities.
"No proposed subdivision shall be approved unless it would be
accessed by roads constructed to County standards and by roads
accepted for maintenance responsibility by a unit of local or state
government. This standard is met if the subdivision would have
direct access to an improved collector or arterial or in cases where
the subdivision has no direct access to such a collector or arterial,
by demonstrating that the road accessing the subdivision from a
collector or arterial meets relevant County standards and has been
accepted for maintenance purposes."
Note the last sentence in DCC 17.16.105 reads "...the road accessing the subdivision
from a collector or arterial meets relevant County standards and has been accepted
for maintenance purposes." (Emphasis added.) DCC 17.16.105 was never amended
to be consistent with Board Resolutions 2006-049 or 2009-118, both of which
precluded the County from accepting roads into the maintained system, although the
latter gave the Board discretion for arterials and collectors.
The Board finds current planning practice has been to approve subdivisions if the
access road were built to County standards and operated/maintained by a special road
district or a homeowners' association or subject to a similar maintenance agreement
pursuant to DCC 17.16.040.1 The text amendment would align and codify current
Planning practice with the Board policy of not accepting new roads by adding language
to DCC 17.16.105 specifying what entities are acceptable road maintenance authorities
when determining access requirements for a subdivision.
III. Proposed amendment to DCC 17.16.105
To be consistent with both the road moratorium, which has been in existence since
2006, and County practice when approving rural subdivisions, the following language is
approved. Text to be deleted is shown as strikethrough and language to be added is
shown as underlined.
1 DCC 17.16.040: "Landowner covenants, conditions, and restrictions and homeowner association agreements are not
relevant to approval of subdivisions and partitions under DCC Title 17, unless otherwise determined by the County to carry
out certain conditions of approval, such as road maintenance or open space preservation. Any provisions in such
agreements not in conformance with the provisions of DCC Title 17 or applicable zoning ordinances are void."
BOCC Ord. 2019-005, Exhibit B (Amend DCC 17.16.105, subdivision access)
Page 2 of 12
"No proposed subdivision shall be approved unless it would be
accessed by roads constructed to County standards and by roads
under one of the following conditions:
A. Public roads with maintenance responsibility accepted for
by a unit of local or state
government or assigned to landowners or homeowners
association by covenant or agreement; or
B. Private roads, as permitted by DCC Title 18, with maintenance
responsibility assigned to landowners or homeowners
associations by covenant or agreement pursuant to ORS
105.175.
C. This standard is met if the subdivision would have direct access
to an improved collector or arterial or in cases where the
subdivision has no direct access to such a collector or arterial,
by demonstrating that the road accessing the subdivision from a
collector or arterial meets relevant County standards and that
maintenance responsibility for the roads have been assigned as
required by this section. has been accepted for maintenance
purposes."
IV. Review Criteria
ee• •
Board Ordinance 2019-005 amends DCC 17.16.105. Deschutes County Tacks specific
criteria in DCC Titles 18, 22, or 23 for reviewing a legislative amendment. Nonetheless,
Deschutes County is initiating this text amendment and bears the responsibility for
demonstrating the amendment complies with Deschutes County Title 22, Development
Procedures Ordinance; Statewide Planning Goals, Oregon Revised Statutes (ORS),
Oregon Administrative Rules (OAR), the Deschutes County Comprehensive Plan, and
Deschutes County Transportation System Plan (TSP).
The findings are organized as follows:
• Section 1 - DCC Title 22, Chapter 22.12, Legislative Procedures
• Section 2 - Statewide Planning Goals
• Section 3 - Oregon Revised Statutes
• Section 4 - Oregon Administrative Rules
• Section 5 - Deschutes County Comprehensive Plan
• Section 6 - Deschutes County Transportation System Plan
Section 1, DCC Title 22, Chapter 22.12, Legislative Procedures
BOCC Ord. 2019-005, Exhibit B (Amend DCC 17.16.105, subdivision access)
Page 3 of 12
22.12.010. Hearing Required
No legislative change shall be adopted without review by the Planning Commission and a
public hearing before the Board of County Commissioners. Public hearings before the
Planning Commission shall be set at the Discretion of the Planning Director, unless otherwise
required by state law.
FINDING: Staff held a work session with the Planning Commission (PC) on November
29 and a first evidentiary hearing on December 13. The PC closed the oral and written
record that same night, recommending unanimously the Board approve the text
amendment as proposed. The Board held a work session on January 23, 2019, and a
public hearing on January 30. The Board closed the oral record that same day, leaving
the written record open until February 6 and setting deliberations for February 20. The
Board finds this complies with DCC 22.12.010.
22.12.020. Notice
A. Published Notice
1. Notice of a legislative change shall be published in a newspaper of general circulation
in the county at least 10 days prior to each public hearing
2. The notice shall state the time and place of the hearing and contain a statement
describing the general subject matter of the ordinance under consideration.
B. Post Notice. Notice shall be posted at the discretion of the Planning Director and where
necessary to comply with ORS 203.045.
C. Individual Notice. Individual notice to property owners, as defined in DCC 22.08.010(A),
shall be provided at the discretion of the Planning Director, except as required by ORS
215.503.
D. Media Notice. Copies of the notice of hearing shall be transmitted to other newspapers
published in Deschutes County.
FINDING: Notice for the Planning Commission public hearing was published in the Bend
Bulletin on November 25, 2018. Notice for the Board public hearing was published in
the Bend Bulletin on January 13, 2019. Both notices were more than 10 days prior to
each public hearing. The Board finds this complies with DCC 22.12.020.
22.12.030. Initiation of Legislative Changes
A legislative change may be initiated by application of individuals upon payment of required
fees as well as by the Board of Commissioners or the Planning Commission.
BOCC Ord. 2019-005, Exhibit B (Amend DCC 17.16.105, subdivision access)
Page 4 of 12
FINDING: The text amendment was initiated by the Planning Division at the request of
the Road Department following a work session with the Board on September 13, 2017.
At that time the Board directed staff to pursue a text amendment. The Board finds this
complies with DCC 22.12.030.
22.12.040. Hearings Body
A. The following shall serve as hearings or review body for legislative changes in this order:
1. The Planning Commission.
2. The Board of County Commissioners.
B. Any legislative change initiated by the Board of County Commissioners shall be reviewed
by the Planning Commission prior to action being taken by the Board of Commissioners.
FINDING: The PC held a public hearing on December 13, 2018, and the Board held a
public hearing on January 30, 2019. The Board finds this sequence complies with DCC
22.12.040.
22.12.050. Final Decision
All legislative changes shall be adopted by ordinance.
FINDING: These findings will become an exhibit to the implementing ordinance, which
is 2019-005. The Board finds this complies with DCC 22.12.050.
22.12.060. Corrections
The County's comprehensive plan and zoning ordinances, subdivision ordinance, and
development procedures may be corrected by order of the Board of County Commissioners
to cure editorial and clerical errors.
FINDING: The amendment for DCC 17.16.105 does not pertain to an editorial or clerical
error, therefore this section is not applicable.
Section 2, Statewide Planning Goals
Goal 1, Citizen Involvement
FINDING: The text amendment included workshops before both the PC and the Board,
which the public could attend. The text amendment also included publically noticed
public hearings before the PC and Board. The Board finds this criterion has been met.
BOCC Ord. 2019-005, Exhibit B (Amend DCC 17.16.105, subdivision access)
Page 5 of 12
Goal 2, Land Use Planning
FINDING: Oregon Revised Statute (ORS) 197.610 allows local governments to initiate
post acknowledgement plan amendments or changes to land use regulations. The
County on November 7, 2018, provided the Department of Land Conservation and
Development (DLCD) with the required notice 35 days prior to the first evidentiary
hearing, which was December 13, 2018. The notice included the proposed changes with
additions indicated by underlined text and text to be eliminated indicated by
strikethrough text. The text amendment was processed via the County's development
code procedures set forth in Title 22, Chapter 22.12 for legislative amendments. The
Board finds this criterion has been met.
Goal 3, Agricultural Lands
FINDING: The text amendment is not proposing any changes to land use designations.
Additionally, residential subdivisions are not allowed on lands zone for agriculture. The
Board finds this criterion has been met.
Goal 4, Forest Lands
FINDING: The text amendment is not proposing any changes to land use designations.
Additionally, residential subdivisions are not allowed on lands zoned for forest unless
the lands also have a destination resort (DR) overlay zone. No additional DR lands are
proposed under this amendment. The Board finds this criterion has been met.
Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces
FINDING: The text amendment is neither proposing any changes to land use
designations nor proposing any changes to previously designated Goal 5 resources. The
Board finds this criterion has been met.
Goal 6, Air, Water and Land Resource Quality
FINDING: No development or land use changes are being proposed that impact air,
water, or land resource qualities. Other areas of the County's code deal with protecting
air, water, and land remain in full force and effect. The Board finds this criterion has
been met.
Goal 7, Natural Hazards
BOCC Ord. 2019-005, Exhibit B (Amend DCC 17.16.105, subdivision access)
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FINDING: The County's Comprehensive Plan identifies the dominant natural hazards as
wildfire, winter storms, and flooding. The text amendment leaves County building codes
and planning setbacks untouched, which are the planning mechanisms which the
County uses to ameliorate natural hazards. The Board finds this criterion has been met.
Goal 8, Recreational Needs
FINDING: The text amendment does not change the uses allowed in the EFU, F-1, or F-
2 zones, some of which are recreational. The Board finds this criterion has been met.
Goal 9, Economic Development
FINDING: The text amendment still allows properties to develop as allowed under their
zoning. Any residential subdivision will be assured that non -County maintained roads
that provide access will be built to County standards and maintained, whether the road
itself is public or private. The Board finds this criterion has been met.
Goal 10, Housing
FINDING: This goal pertains to urban or urbanizable lands. The proposed text
amendment will not result in any changes or elimination of residentially zoned lands in
the County. Any residential subdivision will be assured that non -County maintained
roads that provide access will be built to County standards and maintained, whether
public or private. This will result in a pattern of orderly development. Finally,
unincorporated areas, unlike municipalities, are not obligated to fulfill Goal 10 housing
requirements. The Board finds this criterion has been met.
Goal 11, Public Facilities and Services
FINDING: This goal pertains more to water and sewer services. Nevertheless, any
residential subdivision will be assured that non -County maintained roads that provide
access will be built to County standards and maintained, whether public or private. The
Board finds this criterion has been met.
Goal 12, Transportation
FINDING: The text amendment will not change the functional classification,
performance standards, or access management of any highways or roads. Any
residential subdivision will be assured that non -County maintained roads that provide
access will be built to County standards and maintained, whether public or private. The
Board finds this criterion has been met.
BOCC Ord. 2019-005, Exhibit B (Amend DCC 17.16.105, subdivision access)
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Goal 13, Energy Conservation
FINDING: This text amendment does not affect the County's regulation of solar
setbacks, siting of small-scale windmills, land use or density, etc. The Board finds this
criterion has been met.
Goal 14, Urbanization
FINDING: No land use plan designations, zoning designations, or map changes will
result from this text amendment. Any residential subdivision will be assured that non -
County maintained roads that provide access will be built to County standards and
maintained, whether public or private. The Board finds this criterion has been met.
Goals 15-19
FINDING: These criteria do not apply as the County lacks these lands (Willamette
Greenway, estuaries, coasts, beaches, etc.).
Section 3, Oregon Revised Statutes
ORS 197.610 establishes rules for submission of post -acknowledgement plan
amendments and land use regulations to the Department of Land Conservation and
Development (DLCD). These include the text of the proposed changes, explanatory
narrative, staff report, required form, and timelines to get all materials to the agency
prior to the first evidentiary hearing.
FINDING: Staff provided the required materials and submitted them in compliance with
the 35 -day prior notice timeline. Notice was sent electronically to DLCD on November
7, 2018, which was more than 35 days previous to the first evidentiary on December 13,
2018. The Board finds this criterion has been met.
Section 4, Oregon Administrative Rule
OAR 660-012-0060, aka the Transportation Planning Rule (TPR), applies to plan
amendments and land use regulations and defines significant effect. The text
amendment will not change the functional classification of any existing or planned
transportation facilities, change access requirements, or degrade the performance of an
existing or planned transportation facility. Therefore the text amendment has no
BOCC Ord. 2019-005, Exhibit B (Amend DCC 17.16.105, subdivision access)
Page 8 of 12
significant effect and thus complies with the TPR. The Board finds this criterion has been
met.
Section 5, Deschutes County Comprehensive Plan
Chapter 1, Comprehensive Planning
Section 1.3 Land Use Planning Policies
Goal 1 Maintain an open public land use process in which decisions are based on the
objective valuation of facts.
Policy 1.3.3 Involve the public when amending County Code
FINDING: The County discussed amending Chapter 17.16.105 at a publicly noticed work
session with the Board, then held public hearings before both the PC and the Board.
The public had the opportunity to provide oral or written testimony or both at these
publicly noticed hearings. No one participated at the PC hearing and one person
provided oral testimony at the Board public hearing. The Road Department provided a
written response prior to the February 6, 2019, closing of the written record. The Board
finds the text amendment is consistent with the Comprehensive Plan.
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 3.3.4 Encourage new subdivisions to incorporate alternative development patterns,
such as cluster development, that mitigate community and environmental impacts.
FINDING: By ensuring roads accessing subdivisions are maintained by private entities
such as special road districts, homeowners associations, or codes, covenants and
restrictions (CC&Rs), the potential environmental impacts of a road would be mitigated.
The entity maintaining the road will have maintenance procedures and protocols. The
Board finds the text amendment is consistent with the Comprehensive Plan.
Section 3.6 Public Facilities and Services Policies
Goal 1 Support the orderly, efficient, and cost-effective siting of rural public facilities and
services.
BOCC Ord. 2019-005, Exhibit B (Amend DCC 17.16.105, subdivision access)
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Policy 3.6.1 Encourage the formation of special service districts to serve rural needs rather
than have the County serve those needs.
Policy 3.6.2 Encourage early planning and acquisition of sites needed for public facilities,
such as roads, water and wastewater facilities.
Policy 3.6.9 New development shall address impacts on existing facilities and plans through
the land use entitlement process.
Policy 3.6.14 Guide the location and design of rural development so as to minimize the public
costs of facilities and services.
FINDING: The text amendment will allow special road districts, homeowners
associations, or similar entities to operate and maintain roads accessing subdivisions.
Subdivisions go through the County's land use entitlement process, which would include
the location and design of the roads. Subdivisions are also required to assess their
traffic impacts under DCC 18.116.310. The public costs will be minimized by having
special road districts, homeowners associations, or similar entities operate and maintain
the roads accessing the subdivision. The Board finds the text amendment is consistent
with the Comprehensive Plan.
Section 6, Deschutes County Transportation System Plan
Chapter 5, Planned Improvements and Policies
5.2 Coordination and Implementation of the TSP
Goal 1 Achieve an efficient, safe, convenient and economically viable transportation and
communication system. This system includes roads, rail lines, public transit, air, pipeline,
pedestrian and bicycle facilities. The Deschutes County transportation system shall be
designed to serve the existing and projected needs of the unincorporated communities
and rural areas within the County. The system shall provide connections between different
modes of transportation to reduce reliance on any one mode.
Policy 1.1 Deschutes County shall protect approved or proposed transportation project
sites through:
a. Access control measures;
BOCC Ord. 2019-005, Exhibit B (Amend DCC 17.16.105, subdivision access)
Page 10 of 12
b. Review of future large development and transportation projects that significantly affect
the County's transportation system;
c. Requirement of conditions of approval on developments and transportation projects
that have a significant effect on the County's transportation system;
d. Collection of transportation System Development Charges (SDCs) for approved land
uses a prescribed under BOCC Resolution 2008-059.
FINDING: Subdivisions are reviewed under DCC 17.16 and are required to assess their
traffic under 17.16.115 which references the County's transportation study
requirements at DCC 18.116.310. The text amendment will not change this. The
approval of subdivisions require as a condition of approval that under 17.16.105 the
roads meet County standards and be maintained by either a unit of local or state
government. The proposed language ensures other identified entities can operate and
maintain the roads that provide access to the subdivision, thus protecting
transportation project sites. The Board finds the text amendment is consistent with the
TSP.
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.
Policy 4.1 Deschutes County shall:
a. Consider the road network to be the most important and valuable component of the
transportation system; and
b. Consider the preservation and maintenance and repair of the County road network to
be vital to the continued and future utility of the County's transportation system.
FINDING: The text amendment will ensure the County's road network has a mechanism
to ensure the roads are adequately maintained. While all County roads are public roads,
not all public roads are County -maintained. Existing arterials and collectors are in the
County -maintained system. The text amendment ensures any future arterials and
collectors would be maintained by an identified entity, which may be the County or a
special road district, homeowners association or similar agent. The text amendment
guarantees the preservation, maintenance, and repair of the County road network. The
Board finds the text amendment is consistent with the TSP.
Policy 4.2 Deschutes County shall not add any miles of new arterials or collectors to the
County road system unless the following issues are satisfied:
BOCC Ord. 2019-005, Exhibit B (Amend DCC 17.16.105, subdivision access)
Page 11 of 12
a. The need for the road can clearly be demonstrated;
b. The County can financially absorb the additional maintenance requirements;
c. The condition of the road proposed for acceptance into the County system must meet
County road standards;
d. An accrued benefit can be shown to the County's economic growth:
e. The Board determines there have been adequate replacement revenues to offset the
loss of timber payments from the federal program;
f An overall increase in the efficiency of the County road network can be demonstrated.
FINDING: The text amendment formally codifies past County planning practices to be
consistent with the road moratorium. Typically, arterials and collectors are County -
maintained but the text amendment provides an avenue to have a future arterial or
collector to be maintained by an entity other than the Road Department. The Board
finds the text amendment is consistent with the TSP.
Conclusion
The Board finds text amendment (247 -18 -000872 -TA), which is implemented by Board
Ord. 2019-005, was processed in accordance with DCC 22.12, Legislative Changes, and
the amended language is consistent with applicable ORSs, OARs, the Comprehensive
Pian, and the TSP.
BOCC Ord. 2019-005, Exhibit B (Amend DCC 17.16.105, subdivision access)
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