2020-35-Minutes for Meeting December 18,2019 Recorded 1/29/2020BOARD O;
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541) 388-6570
Recorded in Deschutes County CJ2020-35
Nancy Blankenship, County Clerk
Commissioners' ,journal 01 /29/2020 10:45:34 AM
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.: 2020-3iiminumuiuuuu
FOR RECORDING STAMP ONLY
�:00 AM WEDNESDAY, December 18,2019 BARNES & SAWYER ROOMS
Present were Commissioners Phil Henderson, Patti Adair, and Anthony DeBone. Also present were
Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County
Counsel; and Sharon Keith, Board Executive Assistant. Several citizens and identified representatives of
the media were in attendance.
This meeting was audio and video recorded and can be accessed at the Deschutes County
Meeting Portal website http://deschutescountyor.iqm2.com/Citizens/Default.aspx
CALL TO ORDER: Chair Henderson called the meeting to order at 9:00 a.m.
PLEDGE OF ALLEGIANCE:
CITIZEN INPUT: None presented
CONSENT AGENDA: Before the Board was Consideration of Approval of the
Consent Agenda.
Commissioner Adair asked to pull item 4 for discussion and Commissioner DeBone
acknowledged he hadn't reviewed the minutes, listed as items 6 and 7.
BOCC MEETING DECEMBER 18, 2019 PAGE 1 OF 8
ADAIR: Move approval of Consent Agenda minutes Items #4, 6, and 7
DEBONE: Second
VOTE: ADAIR: Yes
DEBONE: Yes
HENDERSON: Chair votes yes. Motion Carried
Consent Agenda Items:
1. Consideration of Chair Signature of Document No. 2019-601, Amendment to
Medcor, Inc. Services
2. Consideration of Chair Signature of Document No. 2019-602, Amendment to
Pharmacy Agreement with Premise Health
3. Consideration of Board Signature of Document No. 2019-762, Crisis and
Transition Services Contract with Youth Villages
4. Consideration of Chair Signature of Document No. 2019-805, Oregon Health
Authority Grant Agreement
5. Consideration of Board Signature of Reappointment of Mike Maier to the
Deschutes County Budget Committees
6. Approval of Minutes of the December 2, 2019 BOCC Meeting
7. Approval of Minutes of the December 5, 2019 BOCC Meeting
ACTION ITEMS:
Consent Agenda Item 4 as pulled for discussion: Consideration of Chair Signature of
Document No. 2019-805, Oregon Health Authority Grant Agreement
Health Services Director Janice Garceau presented this item and explained the
services that would be covered by the grant funding.
DEBONE: Move Chair Signature of Document No. 2019-805
ADAIR: Second
VOTE: DEBONE: Yes
ADAIR: Yes
HENDERSON: Chair votes yes. Motion Carried
BOCC MEETING DECEMBER 18, 2019 PAGE 2 OF 8
8. Consideration of County Administrator Signature of Document No.
2019-839, Cohesive Strategy Coordinator Contract
County Forester Ed Keith and Central Oregon Cohesive Strategy Coordinator
Allison Green presented the document and scope of work. The contract
period renews the effort for an additional year covering work for five
counties. Each county provides funding for the contract services along with
the US Forest Service. Mr. Keith contacted the five counties for input on the
scope of work and they would support the contract but would look for
additional participation. Ms. Green reported on work with the US Forest
Service, Deschutes Forest Collaborative Project and the scope of work and
highlights with Cohesive Strategy.
Commissioner Henderson inquired on her progress of seeking out grant
funding for fire prevention/fuels reduction. Ms. Green replied she has been
working with the joint Chiefs Group and Ochoco Collaborative providing
input during their grant applications. Commissioner Henderson encourages
efforts for grant funding. Commissioner DeBone noted the importance to
advocate for private industry for biomass.
ADAIR: Move approval of Document No. 2019-839
DEBONE: Second
VOTE: ADAIR: Yes
DEBONE: Yes
HENDERSON: Chair votes yes. Motion Carried
9. Consideration of Board Signature of Document No. 2019-847, Land
Donation Agreement with the City of Redmond
County Administrator Tom Anderson presented this item along with Property
Manager James Lewis.
DEBONE: Move approval of Document No. 2019-847
ADAIR: Second
BOCC MEETING DECEMBER 18, 2019 PAGE 3 OF 8
VOTE: DEBONE: Yes
ADAI R: Yes
HENDERSON: Chair votes yes. Motion Carried
10.Department of Land Conservation and Development Technical
Assistance Grant Award
Tanya Saltzman, Community Development Department presented the grant
award. Ms. Saltzman reported the scope of work will be drafted with the
Oregon Department of Fish and Wildlife and bring to the Board for
consideration. Community Development Director Nick Lelack stated when
the grant award notification was received, DLCD recognized the leadership
and work of Deschutes County was a factor of the award.
11.PUBLIC HEARING: Consideration of Signature of Board Order No. 2019-
048, Assigning the Name Nary Lane to a Public Road
Peter Russell, Senior Transportation Planner, presented the Order for
consideration and outlined the hearing procedure and provided the staff
report. Commissioner Henderson opened the public hearing.
Heidi Narver, property owner reported the name Nary Lane was chosen in
honor of her deceased brother as Nary was his nickname.
Mr. Russell explained the timelines and process of naming a public road.
ADAIR: Move approval of Order No. 2019-048
DEBONE: Second
VOTE: ADAIR: Yes
DEBONE: Yes
HENDERSON: Chair votes yes. Motion Carried
BOCC MEETING DECEMBER 18, 2019 PAGE 4 OF 8
COMMISSIONER UPDATES
• Commissioner Adair attended the Health Council meeting on Thursday
and on Monday met the Sheriff's Office and District Attorney's Office
regarding funding through criminal justice department. Commissioner
Adair attended the Oregon Transportation Commissioner Workshop
yesterday in Lebanon.
• Commissioners Henderson and DeBone attended the Oregon
Business Summit in Portland on Monday.
• The Commissioners attended the Habitat for Humanity ribbon cutting
event for Putney Place on Saturday.
• Commissioner Henderson attended the 9-1-1 Executive Board meeting
yesterday as well as a meeting on a proposed Veterans tiny home
housing development.
• Commissioner Henderson reported the warming shelter opening went
well yesterday. Commissioner DeBone hopes for this process setting
direction for an organization to take the responsibility of services for
the future winter seasons.
• County Administrator Anderson reported on a request for naming
springs at Tumalo Creek and contract with Central Oregon Visitors
Association calls for an annual report and should be scheduled in
January.
RECESS: At the time of 10:18 a.m. the Board went into recess to attend the
Oregon Youth Challenge graduation ceremony at the Fair & Expo Center in
Redmond and will reconvene at 2:00 p.m.
RECONVENE: At the time of 2:02 p.m., Commissioner Henderson reconvened
the meeting.
The Commissioners attended the Oregon Youth Challenge Graduation ceremony
during the recess.
BOCC MEETING DECEMBER 18, 2019 PAGE 5 OF 8
OTHER ITEMs:
Commissioner DeBone brought forward the meeting minutes from this morning's
Consent Agenda.
• Consent Agenda Item 6: Approval of Minutes of the December 2, 2019
BOCC Meeting
• Consent Agenda Item 7: Approval of Minutes of the December 4, 2019
BOCC Meeting
DEBONE: Move approval of Consent Agenda Items 6 and 7
ADAIR: Second
VOTE: DEBONE: Yes
ADAI R: Yes
HENDERSON: Chair votes yes. Motion Carried
12.DELIBERATIONS: Lower Bridge Planned Development
Community Development Department, Will Groves, presented the
deliberations. The Commissioners considered the approval criteria on
relevant topics.
Staff will coordinate with counsel for the applicant and generate draft
Findings and Decision for consideration and approval by the Board (prior to
January 28).
RECESS: At the time of 3:49 p.m. a recess was taken and the meeting was
reconvened at 4:02 p.m.
BOCC MEETING DECEMBER 18, 2019 PAGE 6 OF 8
13.Terrebonne Refinement Plan Discussion
Commissioner Henderson reported on discussions with the Oregon
Department of Transportation and on input received from the public.
The most recent input from the Terrebonne community shows support for
the interchange design option. Commissioner Henderson noted the strength
of the timeline is in reviewing the appropriate design choice. Commissioner
Adair reported on the discussions at the Oregon Transportation Commission
Workshop yesterday. She expressed concerns for safety and the importance
of maintaining the community of Terrebonne. Commissioner Adair
supported the design interchange option 2 and somehow to place the 4
lanes up on the agenda to design Highway 97 correctly. Commissioner
DeBone reported on traffic count data published October 2019.
Commissioner Henderson is also in support of design interchange option 2.
Commissioner DeBone spoke on the Terrebonne Community Plan and the
documented resistance of a 5 lane option. Commissioner Adair
recommending a plan to route visitors to Smith Rock to use an alternate
route. An off -ramp was also considered for Highway 97.
Peter Russell, Senior Transportation Planner, reported the Deschutes County
transportation plan already has an interchange design in the planning
document.
The Board supported the ODOT Option 2 Interchange with additional safety
enhancements. County Counsel Doyle suggested a document (Letter of
Support) for the Board to consider at the BOCC Meeting on December 23,
2019.
Commissioner Henderson recommended a citizen advisory committee.
Commissioner DeBone stated Deschutes County was planning to provide
funding for improvements. Commissioner Adair asks for safety
improvements. Road Department Director Chris Doty confirmed that at
some point in the process an Intergovernmental Agreement between ODOT
and the County will come before the Board.
HENDERSON: Move approval to draft a letter of support on the
Terrebonne Road Improvements and Incorporate Option
2 with safety features.
BOCC MEETING DECEMBER 18, 2019 PAGE 7 OF 8
ADAIR: Second
VOTE: HENDERSON:
ADAIR:
DEBONE:
Chair votes yes. Motion Carried
Yes
Yes
Being no further items to come before the Board, the meeting was adjourned at 4:31 p.m.
TTI A AI e VICE CHAIR
ANTHONY DEBONE, COMMISSIONER
BOCC MEETING DECEMBER 18, 2019 PAGE 8 OF 8
\)I ES COG
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o Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - www.deschutes.org
BOCC MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
9:00 AM, WEDNESDAY, DECEMBER 18, 2019
Barnes Sawyer Rooms - Deschutes Services Center - 1300 NW Wall Street - Bend
This meeting is open to the public, and allows 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 Board's ability to address other topics.
Meetings are subject to cancellation without notice.
Item start times are estimated and subject to change without notice.
CALL TO ORDER
PLEDGE OF ALLEGIANCE
CITIZEN INPUT
This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues
that are not already on the agenda. Please complete a sign-up card (provided), and give the card to the
Recording Secretary. Use the microphone and clearly state your name when the Board Chair calls on you to
speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing not
being conducted as a part of this meeting will NOT be included in the official record of that hearing.
If you offer or display to the Board any written documents, photographs or other printed matter as part of your
testimony during a public hearing, please be advised that staff is required to retain those documents as part of the
permanent record of that hearing.
CONSENT AGENDA
Consideration of Chair Signature of Document No. 2019-601, Amendment to
Medcor, Inc. Services Contract 2012-622
Board of Commissioners BOCC Meeting Agenda Wednesday, December 18, 2019 Page 1
of 3
2. Consideration of Chair Signature of Document No. 2019-602, Amendment to
Pharmacy Agreement with Premise Health
3. Consideration of Board Signature of Document No. 2019-762, Crisis and Transition
Services Contract with Youth Villages
4. Consideration of Chair Signature of Document No. 2019-805, Oregon Health
Authority Grant Agreement
5. Consideration of Board Signature of Reappointment of Mike Maier to the
Deschutes County Budget Committees
6. Approval of Minutes of the December 2, 2019 BOCC Meeting
7. Approval of Minutes of the December 4, 2019 BOCC Meeting
ACTION ITEMS
8. 9:10 AM Consideration of County Administrator Signature of Document No.
2019-839, Cohesive Strategy Coordinator Contract - Ed Keith, Forester
9. 9:25 AM Consideration of Board Signature of Document No. 2019-847, Land
Donation Agreement with the City of Redmond - Tom Anderson, County
Administrator
10. 9:45 AM Department of Land Conservation and Development Technical
Assistance Grant Award - Tanya Saltzman, Associate Planner
11. 10:00 AM PUBLIC HEARING: Consideration of Signature of Board Order No.
2019-048 Assigning the Name Nary Lane to a Public Road - Peter
Russell, Senior Planner
RECESS: 10:15 am - 2:00 pm
ACTION ITEMS Continued: RECONVENE 2:00 p.m.
12. 2:00 PM DELIBERATIONS: Lower Bridge Planned Development - William Groves,
Senior Planner
13. 4:00 PM Terrebonne Refinement Plan Discussion
Board of Commissioners BOCC Meeting Agenda Wednesday, December 18, 2019 Page 2
of 3
OTHER ITEMS
These can be any items not included on the agenda that the Commissioners wish to discuss as part of
the meeting, pursuant to ORS 192.640.
ADJOURN
To watch this meeting on line, go to: www.deschutes.org/meetings
Please note that the video will not show up until recording begins. You can also view past
meetings on video by selecting the date shown on the website calendar.
Deschutes County encourages persons with disabilities to participate in all programs
and activities. This event/location is accessible to people with disabilities. If you need
accommodations to make participation possible, please call (541) 617-4747.
FUTURE MEETINGS:
Additional meeting dates available at www.deschutes.org/meetingcalendar
(Please note: Meeting dates and times are subject to change. All meetings take place in the Board of
Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions
regarding a meeting, please call 388-6572.)
Board of Commissioners BOCC Meeting Agenda Wednesday, December 18, 2019 Page 3
of 3
E S CMG
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 BOCC Wednesday Meeting of December 18, 2019
DATE: December 12, 2019
FROM: Peter Russell, Community Development, 541-383-6718
TITLE OF AGENDA ITEM:
PUBLIC HEARING: Consideration of Signature of Board Order No. 2019-048 Assigning the
Name Nary Lane to a Public Road
RECOMMENDATION & ACTION REQUESTED:
Open hearing to receive public comment
BACKGROUND AND POLICY IMPLICATIONS:
Deschutes County Code (DCC) Chapter 16.16. governs the naming of roads. Heidi Narver, an
adjacent property owner, submitted an application (247-19-000574-RN) to name a 30-foot-
wide public road as Narv. The road would be used to access her property. Staff has approved
the application and discussed the matter with the Board at a December 9 work session. Board
Order 2019-048 and its exhibits implements the staff decision..
FISCAL IMPLICATIONS: None
ATTENDANCE: Peter Russell, Senior Transportation Planner, CDD
-A
TO: Board of County Commissioners
FROM: Peter Russell, Senior Transportation Planner
DATE: December 12, 2019
RE: December 18 hearing on Board Order 2019-048, proposed road name of Nary Lane
(file 247-19-000574-RN)
Background
Heidi Narver owns the property at 2965 Walker Road, aka County Assessor Map 17-14-34AA, Tax
Lot 100. A 30-foot-wide public road runs along the property's eastern edge south of Walker Road
for approximately 1,125 feet. Ms. Narver has safety concerns about using Walker as her driveway
access and checking her mail. She would prefer to take her access from the unnamed public road
along the property's eastern edge, which requires the public road be named.
The Board held a work session on December 9 regarding the name, discussing the pros and cons.
Staff decision
Ms. Narver, in accordance with Deschutes County Code 16.16 (Road Naming), submitted an
application (file 247-19-000574-RN) to name the public road. The Property Address Coordinator
and staff reviewed the four proposed names and selected Narv. Under DCC 16.16.030(E)(2)(d) roads
of reduced width shall be called lanes or terraces; staff selected lane.
Staff queried the applicant for the reason for the name and Ms. Narver explained Nary was a family
nickname and this name would be in tribute to her late brother. She also did not want her full last
name used.
As of this writing, staff has not received any written opposition or appeals on the proposed name
from those who meet the requirements of DCC 16.16.030(B) and (G). The applicant has confirmed
with staff her preference for the name Nary Lane.
Under DCC 16.16.030(B) public comments on the proposed road name are limited to those owning
property abutting the affected road or having an address on the affected road.
Next steps
The 10-day appeal period ended December 12 and DCC 16.16.030(I) requires the Board to hold a
public hearing within 10 days of the appeal period's end. The December 18 public hearing for Board
Order 2019-048, which implements the approval of Nary Lane under file 247-19-000574-RN,
complies with the required timeline.
1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 i P.O. Box 6005, Bend, OR 97708-6005
Q (541) 388-6575 @ cdd@deschutes.org @ www,deschutes.org/cd
The Board will open the public hearing and receive any public testimony on Nary Lane.
Staff is available for any questions.
Enclosures:
Board Order 2019-048
Board Order 2019-048 Exhibit A, Map showing Nary Lane
Board Order 2019-048, Exhibit B, staff decision approving file 247-19-000574-RN (Nary Lane)
Page 2 of 2
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Sharon Keith
From:
Chris Doty
Sent:
Wednesday, December 18, 2019 12:26 PM
To:
Sharon Keith
Cc:
Tom Anderson
Subject:
FW: Sale of Vactor to Deschutes County
Attachments:
Vactor - Intent to Purchase 12-17-19.docx
SK
The City put the wrong VIN number on the prior letter that Tom signed and they have asked that we sign a corrected
letter. Could you get Tom's signature and send me a scanned copy at your convenience.
Thanks!
Chris Doty, PE I Director
DESCHU ES COUNTY ROAD DEPARTRAENT
61150 SE 271h Street I Bend, Oregon 97702
Tel: (541) 322-7105 1 Fax: (541) 388-2719 1 Cell: (541) 279-1134
Email: Chris.Doty@deschutes.org
Website: www.deschutes.org/road
From: Randy McCulley <Randy.McCulley@deschutes.org>
Sent: Wednesday, December 18, 2019 12:23 PM
To: Chris Doty <Chris.Doty@deschutes.org>
Subject: Fwd: Sale of Vactor to Deschutes County
Get Outlook for Android
From: Rick Albeck <ralbeck bendoreRon.gov>
Sent: Wednesday, December 18, 2019 11:09:51 AM
To: Randy McCulley <Randy.McCulley@deschutes.org>
Subject: FW: Sale of Vactor to Deschutes County
[EXTERNAL EMAIL]
Randy,
Here's the updated letter with the correct equip/VIN. Please have it signed and return to me ... thanks!
Rick Albeck I Fleet Director
0: 541-317-3023 1 M: 541-550-6481
CITY OF BEND �� �� ( J ,I
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—4/ 7..
From: Brenda Mingus <bmingus@bendoregon.gov>
Sent: Wednesday, December 18, 2019 11:01 AM
To: Rick Albeck <ra I beck@ bendoregon_gov>; Gwen Chapman <gchapman@bendoregon.goy>
Cc: Elizabeth Oshel <eoshel@bendore, .gov>
Subject: Sale of Vactor to Deschutes County
Rick and Gwen,
See attached revised Letter of Intent which identifies the correct vehicle.
Brenda Mingus I Legal & Risk Program Manager
O 541-693 2129 F 541-385-6676
F.,
CITY" OF BLIND
PUBLIC RECORDS LAW DISCLOSURE: Emails are generally public records and therefore subject to public
disclosure unless exempt from disclosure under Oregon Public Records Law. Emails can be sent inadvertently
to unintended recipients and contain confidential or privileged information. If you are not the intended recipient
(or authorized to receive for the recipient), please advise by return email and delete immediately without
reading or forwarding to others. Thank you.
LETTER OF INTENT TO PURCHASE
This Letter of Intent to Purchase, effective December 10, 2019, is between the City of Bend,
and Oregon municipal corporation (City), and Deschutes County, a political subdivision of the
State of Oregon (County).
1. City owns a vacuum -style excavation unit used to clean sewers, vehicle identification no.
2FZAAWDCX4AN009325, known in the City's records as equipment no. 1302 ("Vactor
1302").
2. Vactor 1302 is surplus to the City's needs, the City having replaced Vactor 1302 with a
new vacuum -style excavation unit.
3. City wishes to sell, pursuant to Bend Municipal Code 1.55.090.F, and County wishes to
purchase Vactor 1302 from the City, upon the approval of the County budget for fiscal
year 2020. County budget approval is anticipated to occur on or before July 1, 2020.
4. Prior to such budget approval, the parties wish for County to lease Vactor 1302 from City,
on terms established in a separate lease agreement.
5. County will pay to City $100,000.00 on or before July 15, 2020, as final payment for
Vactor 1302. If the County does not approve funds for this purchase in its fiscal year 2020
budget, no sale will occur, and City may sell Vactor 1302 to any other entity it wishes,
subject to the terms of any lease agreement between the parties for Vactor 1302.
6. County will take possession of Vactor 1302 when funds for the full purchase price are
received by City.
7. City will provide County with title to Vactor 1302 when funds for the full purchase price are
received by City.
8. The terms in this Letter are an outline of the agreement for sale of Vactor 1302 between
City and County. The terms in this Letter are not comprehensive and the parties may add
additional terms and/or change or delete existing terms. These terms do not create a
binding agreement between City and County and will not be enforceable. Only the lease
agreement and any future sale agreement, executed by City and County, will be
enforceable. The terms and conditions of any future sale agreement will supersede any
terms and conditions in this Letter.
9. This Letter of Intent replaces the letter of Intent dated December 10, 2019, which
identified the wrong vehicle.
Name: Eric King, City Manager
Title: City of Bend
Deschutes County Date:
Date:
Page 1 of 1 - LETTER OF INTENT TO PURCHASE
BUT E S CO
o ` 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 BOCC Wednesday Meeting of December 18, 2019
DATE: December 11, 2019
FROM: Tanya Saltzman, Community Development,
TITLE OF AGENDA ITEM:
Department of Land Conservation and Development Technical Assistance Grant Award
Overview of DLCD Technical Assistance (TA) Grant Award, which provides a basis for
evaluating rural growth and development through a multi -faceted lens, taking into
consideration its effect on resource lands, wildlife, natural hazards, economic development,
housing, transportation, public facilities, and rural communities.
MEMORANDUM
TO: Deschutes County Board of Commissioners
FROM: Nick Lelack, AICP, Director
Peter Gutowsky, AICP, Planning Manager
Tanya Saltzman, AICP, Associate Planner
DATE: December 12, 2019
SUBJECT: Department of Land Conservation and Development / Technical Assistance Grant Award
On December 2, 2019, the Department of Land Conservation and Development (DLCD) notified Deschutes
County that it received an 18-month $25,000 Technical Assistance (TA) Grant to: 1) incorporate Wildfire
Mitigation Advisory Committee recommendations into the Comprehensive Plan and development code; and
2) begin updating Goal 5 wildlife habitat inventories (Attachment 1). This award provides assistance for two
of the four goals submitted by the County in the grant application.
Staff requests Board of County Commissioners support to begin drafting a scope of work and grant contract
that will be reviewed by the Board in January.
I. TA Grant Application
On September 30, 2019, the Board finalized a DLCD TA Grant Application that provides a basis for evaluating
rural growth and development through a multi -faceted lens, taking into consideration its effect on resource
lands, wildlife, natural hazards, economic development, housing, transportation, public facilities, and rural
communities.' Staff structured the grant application so that it would give Deschutes County the resources to
evaluate land use interrelationships as part of a Comprehensive Plan update, Deschutes County 2040. County
staff could then engage residents and stakeholders in a separate, multi -year public process to update the
Comprehensive Plan holistically. As noted in the grant application, Deschutes County is undertaking several
keystone projects that provide the foundation for a formal update to the Comprehensive Plan. They include:
• Bend Airport Master Plan refinement
• Day Care and Nursey amendments
• Flood Plain Zone amendments
• Historic Inventory update
• Housing Strategies Report
• Religious institution amendments
• Terrebonne sewer feasibility study
• Transportation System Plan update
• Wildfire Mitigation Advisory Committee
1 See Action Item #6. http://deschutescountyor igm2.com/Citizens/FileOpen.aspx?Tvpe=1&ID=2152&lnline=True
The TA Grant proposed leveraging in -kind and reserve funds to elevate the following four projects:
Housing Strategies Report
Convene a Housing Strategies Committee to understand housing conditions and opportunities. This will lead
to the development of a housing report of existing conditions for unincorporated areas, including housing
supply, rural vacant residential lands analysis, and estimated housing need. Staff will then develop goals and
policies, as well as financial, regulatory, and county -land ownership strategies based on the Housing Report
that inform amendments to the Comprehensive Plan (Chapter 3 — Rural Growth Management and Chapter 4
— Urban Growth Management). Finally, staff will create an implementation plan, including development code
amendments, partnerships with cities, housing organizations, and others to create and/or preserve affordable
and other needed housing.
Terrebonne Sewer Feasibility Study
Develop a wastewater feasibility study and engage Terrebonne residents in a process to evaluate wastewater
systems and costs to protect public health and water quality and select a preferred alternative. The study may
require updating the Terrebonne Community Plan (Comprehensive Plan Chapter 4 — Urban Growth
Management) and revising the development code (DCC Title 18.66). Lastly, this experience could lead to the
development of an implementation guide for other communities, e.g., Tumalo, and/or clusters of property
owners in the county.
Updating Wildlife Inventories
Evaluate new wildlife inventories from the Oregon Department of Fish and Wildlife (ODFW) to implement the
procedures and requirements for complying with Goal 5 (OAR 660, Division 23). This will entail engaging ODFW
and a DLCD Goal 5 Coordinator to mutually understand the methodology of the agency's updated wildlife
inventories, conflicting uses and the range of options for protecting wildlife habitat. Staff proposes to develop
wildlife protection scenarios that could be incorporated into an Economic, Social, Environmental, and Energy
(ESEE) analysis and ultimately, the Comprehensive Plan and development code. An implementation plan
would be created, identifying work tasks to be initiated after the TA grant, including budget, timeline,
community engagement, ESEE Analysis, amendments to the comprehensive plan and development codes, and
a post acknowledge plan amendment (PAPA).
Wildfire Mitigation Advisory Committee (WMAC)
Following the WMAC's process and recommendations in early 2020, initiate a community involvement plan
to inform the public on the recommendations to reduce losses from wildfires in the county. Based on public
input, staff will develop goals and policies for the Comprehensive Plan (Chapter 3 Rural Growth Management
- Section 3.5 Natural Hazards) and amendments to the Comprehensive Plan Map, Zoning Map, and
development code to reflect an updated Wildfire Hazard Zone map.
11. TA Grant Award
DLCD informed staff early in the grant application process that the two year, 2019-2021 TA grant cycle was
anticipated to be the most competitive TA grant to date largely due to funding commitments to municipalities
-2-
to implement HB 2001.2 Despite this challenge, DLCD notified Deschutes County on December 2 that it will
receive a partial state grant of $25,000 for two elements of our application proposal: incorporating Wildfire
Mitigation Advisory Committee recommendations into the Comprehensive Plan and development code
($10,000 with County in -kind match of $10,000) and updating Goal 5 wildlife habitat inventories ($15,000 with
County in -kind match of $25,000).
III. Developing a Scope of Work
With the Board's support, staff will begin drafting a scope of work and grant contract to be reviewed and
signed by our DLCD regional representative, after which point reimbursable work may begin. As outlined in
the grant application, the scope of work for both tasks will include a combination of data collection, consultant
work (which may encompass technical analysis as well as public facilitation), community meetings throughout
the county over the course of the summer and fall, inter -agency coordination, drafting of Comprehensive Plan
and development code changes, and coordination with the Deschutes County Planning Commission and
Board.
IV. Next Steps
Staff expects to coordinate internally as well as conduct scoping meetings with DLCD and ODFW to develop a
detailed scope of work for discussion with the Board in January. Upon Board approval, staff with work with
DLCD to complete the grant contract and begin work.
Attachment
1. DLCD TA Grant Award Letter
2 HB 2001 requires cities with populations between 10,000 and 25,000 to allow duplexes on any lot zoned for single-family dwellings. In addition,
in cities with populations over 25,000, the bill mandates that local governments allow multi -family development up to quadplexes in any areas
zoned for single-family dwellings. The smaller cities must make these zoning changes by June 30, 2021, and the larger cities must make these
zoning changes by June 30, 2022
-3-
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tJregon
Kate Brown, Govenor
December 2, 2019
Department of Land Conservation and Development
635 Capitol Street NE, Suite 150
Salem, Oregon 97301-2540
Nick Lelack, Community Development Director
Deschutes County SENT VIA E-MAIL
117 NW Lafayette Avenue
PO Box 6005
Bend, Oregon 97708
RE: Notice of DLCD Technical Assistance grant award
Dear Nick Lelack:
Phone: 503-373-0050
Fax: 503-378-5518
www.oregon.gov/LCD
(W)
I am very pleased to offer Deschutes County a Technical Assistance grant award for 2019-2021.
Your application was selected from among 48 proposals submitted to the Department of Land
Conservation and Development for this biennium. Your proposal aligns well with the priorities
established in the Land Conservation and Development Commission's Grants Allocation Plan and
other approval criteria. The department is prepared to fund the Comprehensive Plan Update,
Deschutes County 2040 project for $25,000 toward the following two components of the grant
application proposal:
• Goal 1 — Incorporate Wildfire Mitigation Advisory Committee (WMAC) recommendations
into the Comprehensive Plan and development code - $10,000
• Goal 4 — Coordinate with the Oregon Department of Fish and Wildlife (ODFW) to begin
updating the County's Goal 5 wildlife inventories - $15,000
Please work with your DLCD regional representative to complete a scope of work and grant contract.
Once a grant contract is signed by both parties, reimbursable work on the project may begin.
Oregon's current budget provides funding to support the Technical Assistance grant program. Please
note, however, in the event of a significant change in state revenue we may be required to limit a
portion of the grant award.
If you have any questions about the award, please contact Scott Edelman, your DLCD regional
representative, at (541) 306-8530 or scott.edelmankstate.or.us, or me at (503) 934-0034 or
gordon.howardk state. or.us.
Thanks for your interest, and compliments on your successful application. We look forward to
working with you on the project.
Yours truly,
Gordon Howard
Community Services Division Manager
TA Grant Award (2019-2021)
December 2, 2019
Page 2 of 2
cc: Senator Tim Knopp
Senator Cliff Bentz
Senator Dennis Linthicum
Representative Cheri Helt
Representative Jack Zika
Representative Daniel Bonham
Representative Vikki Breese Iverson
Annette Liebe, Regional Solutions Team Coordinator
Scott Edelman, DLCD Regional Representative
Angela Williamson, DLCD Grants Administrative Specialist
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December 17, 2019
Deschutes County Board of Commissioners
1300 NW Wall Street, 2"d Floor
Bend, Oregon 97703
Jefferson County Board of Commissioners
66 SE D Street Suite A
Madras, Oregon 97741
Department of Transportation
RE: Recommendations on the US 97 Terrebonne Refinement Plan
Deschutes County and Jefferson County Commissioners,
Region Manager
63055 N. Hwy 97 Bldg. K
Bend, Oregon 97703
Phone: (541) 388-6252
On behalf of ODOT I thank you for partnering with us on development of a US 97 Refinement
Plan for the Terrebonne / Lower Bridge Way area. In the spirit of our partnership, I recommend
we draw to a close on the Refinement Planning work, and begin taking action toward
implementation of transportation improvements for the area.
Within this Planning effort, I appreciate the very many who have worked long and hard on the
issues, gaining perspectives, providing input, and adding ideas which have been incorporated.
I acknowledge the Advisory Committee, School District, Deschutes County Planning
Commission, Crooked River Ranch C&MA Board of Directors, and many others who have
recommended Couplet adoption into the TSP.
I also fully recognize, understand, and appreciate the fact that many within Terrebonne are
opposed to the proposed Couplet adoption, especially given their hard work to make sure
concerns and impacts are shared and well understood, reinforcing the point that full consensus
among all stakeholders has not been achieved.
Given the fact that we have not been able to reach full public consensus, I also recognize and
appreciate how complex and challenging the decision making is, particularly for Deschutes
County in support of their variously affected constituents. To this end, here are my specific
recommended options:
December 16, 2019
Deschutes County & Jefferson County BOC's
Page 2 of 3
Option 1
Deschutes County adopt the Couplet into the TSP, per the Draft Findings to Amend Deschutes
County Transportation System Plan to Add U.S. 97 Couplet in Terrebonne, and move we
forward with design and construction phases accordingly. As I have communicated with each of
you, I believe this is the best option, all things considered including the most current public
involvement, direction provided in the current Deschutes County TSP for Terrebonne, and
direction provided in the Terrebonne Community Plan.
Option 2
If the Deschutes County Board as a whole is not ready to support Couplet adoption into the
TSP, my recommendation is to defer any decisions on amendments to the TSP at this time, and
for the benefit of all parties I would fully support moving forward with the following:
- Interchange. In reference to page 165 of the Deschutes County TSP (The intersection of
Lower Bridge Way/US 97 will have either a simple overpass or a grade -separated
interchange), design and construct a grade -separated interchange to serve the intersection
of US 97 and Lower Bridge Way/S 1111 Street.
Per the TSP, this design will be based on the goals and objectives of the adopted
Terrebonne Community Plan, the goals and objectives of the Oregon Highway Plan, and
additional public input and outreach; while minimizing property impacts, minimizing HB 2017
funding related costs, and allowing for adaptability to all long-term options and future
decisions for US 97 in Terrebonne.
The cost range is—$12-14 Million for the interchange (see Enclosed concept drawing).
Safety Improvements. Analyze, Propose, Design, and Construct additional improvements
within Terrebonne that address safe speeds, access, circulation, and pedestrian needs (per
TSP and Terrebonne Community Plan expectations), such as Rapid Flashing Beacon for
pedestrian crossing, U-turn options, 11th Street upgrades and other circulation -related local
road improvements, curb and sidewalk infill, and curb extensions at intersections for
pedestrian safety.
Such improvements would be a very important safety complement to the interchange, and
will be based on the Refinement Planning goals and objectives, as well as the goals and
objectives of the adopted Terrebonne Community Plan, the goals and objectives of the
Oregon Highway Plan, and additional public input and outreach; while allowing for
adaptability of all long-term options and future decisions for US 97 in Terrebonne.
The Design would be closely coordinated and timed with the Interchange Construction in
—2021-2022 for maximized efficiency and minimized impacts, and for coordination and
consideration of appropriate uses of HB 2017 funding and any potential County funding.
December 16, 2019
Deschutes County & Jefferson County BOC's
Page 3 of 3
Let me reassure you that we at ODOT will continue comprehensive and transparent public
involvement with decision -making during the project development and construction phases of
this effort, in partnership with both Deschutes County and Jefferson County. This will include
addressing safe and reasonable access, circulation, and parking needs, as well as other viability
impacts and needs for properties, businesses, and utilities.
I would very much appreciate receiving a response from both of you (each Board) on these
recommended options, including how you would like to proceed, by early in January 2020.
This will allow us to proceed on the expected schedule for HB 2017 funding. In the meantime,
please let me know if you have follow-up questions or need for additional information, or if you
would like to meet in a joint work session to address my recommendations.
Again, I would like to thank you for partnering with us on this refinement plan, and for the long
standing relationship of collaboration we have maintained among our three jurisdictions over
many years.
Re a tfully,
Ga arnsworth
O T Region 4 Manager
Deschutes County & Jefferson County BOC's
ENCLOSURE - Interchange Only Concept*
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*Concept Drawing represents traffic movement and general configuration. Specific interchange
location, access points, sidewalk infill, and lane layouts to be determined during design.
Traffic count data per ODOT's 2018 Transportation Volume Tables
Published October 2019
US 97 at Jefferson County line 13,200
US 97 in Terrebonne: 17,900 vehicles per day
US 97 in La Pine: 9,900 at First Street
US 20 in Sisters: 12,300 to 15,200 in city limits
US 20 in Tumalo: 13,600
US 20 West of Bend: 9,300
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Deschutes County Board of Commissioners
raaru 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 BOCC Wednesday Meeting of December 18, 2019
DATE: December 13, 2019
FROM: William Groves, Community Development, 541-388-6518
TITLE OF AGENDA ITEM:
DELIBERATIONS: Lower Bridge Planned Development
BACKGROUND AND POLICY IMPLICATIONS:
The Board will conduct deliberations for the Lower Bridge Planned Development on December
18, 2019. Staff will conduct a work session to orient the Board to anticipated topics for Board
deliberations.
FISCAL IMPLICATIONS: None.
ATTENDANCE: Will Groves, Legal.
STAFF MEMORANDUM
Date: November 2, 2019
To: Board of County Commissioners
From: Will Groves, Senior Planner
Re: Deliberation - Appeal of Hearings Officer Decision (File Nos. 247-19-000405-CU, 406-TP,
407-SMA, 741-A, 757-A)
The Board of County Commissioners (Board) will conduct deliberations on December 18, 2019, at
1:00 PM, on appeals of a Hearings Officer's decision denying a conditional use, tentative subdivision
plan, and Surface Mining Impact Area ("SMIA") site plan review.
1. Application
The Applicant requested conditional use, tentative subdivision plan, and SMIA site plan approval to
establish a 19-lot residential planned unit development ("PUD") on the Subject Property. The
residential lots would range in size from 2 to 5 acres, would comprise a total of 42.5 acres, and
would have access from Lower Bridge Way via private roads. The subdivision would include 2
common area tracts comprising 0.9 acres, 5 open space tracts comprising 94.1 acres, 4.4 acres of
private road, and 2.8 acres of right-of-way dedication for the abutting segment of Lower Bridge Way.
No development is proposed to occur within the Flood Plain Zone of the Deschutes River Canyon
area.
The present application is significantly similar to a 2015 application denied by a Hearings Officer
and withdrawn by the Applicant before the Board. This is referred to as the "2015 decision".
II. Decision
The Hearings Officer denied the application and the decision was mailed on September 24, 2019.
The Hearing Officer's decision quoted extensively from the 2015 decision. The 2019 application was
denied because:
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
� (541) 388-6575 @cdd@deschutes.org @ www.deschutes.org/cd
• The Applicant did not provide required proof that sufficient financing exists to assure
the proposed development will be substantially completed within four years of
approval.
• The Applicant had requested to impermissibly defer compatibility analysis with two
adjacent, non -active surface mines.
The 2019 denial differed from the 2015 denial in several important ways.
• It reevaluated the code provisions relating to including Flood Plain zoned lands in a
PUD and concluded that this was permissible. Additionally, the 2019 decision found
that Flood Plain zoned lands could be included in lot density calculations for the PUD.
• It found that compliance with rimrock setbacks could be made conditions of the
approval.
• It found that the lot sizes were adequate for the proposed residential use, given
applicable setbacks and other constraints.
• It found potential dust impacts from adjacent Surface Mining zoned properties could
be addressed through a condition of approval.
• It found that environmental concerns raised by the mine's long history were
adequately addressed, for the purposes of this PUD, through recent Department of
Environmental Quality and Oregon Health Authority letters.
III. 150-day Issuance of a Final Local Decision
The 150-day period for issuance of a final local decision is currently January 28, 2020.
IV. Appeal
The Applicant filed an appeal of the Hearings Officer's decision concerning both reasons for denial,
listed above.
Calfa Holdings, LLC appealed the Hearings Officer's decision for the following reasons:
• The Hearings Officer erred in concluding that Flood Plain zoned areas can be used as
open space tracts in a PUD subdivision. This has authorized a density transfer to the
upland portions of any PUD or cluster development using flood plain zoned land.
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 2 of 20
This decision has circumvented the County's requirement to perform an economic,
social, energy and environmental ("ESEE") analysis, consistent with Goal 5, which the
County had in fact done in the preliminary stages of the 2019 legislative process.
• The minimum lot size for Flood Plain Zone has not been met in this case. The required
minimum lot size is 80 acres for "areas which have not received an exception to the
Statewide Planning Goals" for resource uses. The Flood Plain Zone portion of this
subject property is Surface Mine Designated and has not received an exception to
resource goals (Goals 3 and 4).
• The Hearings Officer erred in concluding that the applicant can defer until building
permit stage to show that Landscape Management Zone rimrock setbacks of 50 feet
will be met.
III. KEY ISSUES
The Board will likely be asked to deliberate and decide on the several matters. This deliberation
summary of party positions is largely composed of direct quotes from record materials. Some
quotes have been edited for brevity, clarity, or issue focus.
1. Is a Planned Development application allowed in the Flood Plain zone?
Issue Summary: This application includes the creation of open space lots in the Flood Plain
(FP) Zone, where "Planned Development" ("PUD") is not one of the listed uses. The proposed
use of FP zoned lands is the creation of lots through subdivision for the preservation of open
space, as part of a PUD. "Subdivision" is an allowed use in the zone. The 2015 and 2019
Hearings Officers disagreed on this question.
2015 Hearings Officer: "Neither "cluster development" nor "planned development" is a use
permitted outright or conditionally in the FP Zone. The Hearings Officer finds the text and
context of the provisions of Title 18 defining and governing the three types of subdivisions
make clear they have different characteristics and are intended to be reviewed and approved
under different substantive standards. While it may seem counterintuitive not to permit use
of FP -zoned land for open space within a planned development where such use would
protect these areas consistent with the purpose of the FP Zone, I find the plain language of
the FP Zone does not allow such development."
Calfa Holdings: ... nowhere in the Code does it state that PUD or cluster developments are
allowed. A PUD is wholly different from a standard subdivision, which has its own approval
criteria and process. The fact that "subdividing" land is permitted in the flood plain zone does
not mean PUDs are permitted.
Applying general principles of legal interpretation, one must necessarily conclude that the
Code's omission of "PUD" or "cluster" subdivision from the conditionally permitted use table
is illustrative and diapositive as to whether flood plain areas within PUDs can be used as
open space. Similarly, the Code's express inclusion of the separately and clearly defined
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 3 of 20
"subdividing" of land, which is wholly distinct from PUDs, is illustrative and dispositive as to
whether flood plain areas within PUDs can be used as open space.
2019 Hearings Officer: "The Hearings Officer disagrees with the 2015 Land Use Decision
comment that "I find the plain language of the FP Zone does not allow such a development"
referring to a "cluster" and/or a "planned" development. The Hearings Officer, in this case,
believes the language used in DCC 18.96.040 is clear, plain and unambiguous. The 2015 Land
Use Decision findings for DCC 18.96.040 characterizes "cluster developments" and "planned
developments "as something separate and distinct from the act of subdividing. This Hearings
Officer, in this case, finds that "cluster developments" and "planned developments" are
subdivisions.
Applicant Final Argument: Staff notes that the Applicant agrees with the 2019 Hearings
Officer decision and has included the following additional argument.
The record shows the Flood Plain zone was adopted based on the Flood Insurance Study
maps for Deschutes County prepared by FEMA and the subject property is located within
Zone A on the Flood Insurance Rate Map ("FIRM") map. The record further shows a cluster
subdivision like the one proposed in the present case is consistent with the FEMA Guidelines
for development within a Zone A area.
2. is open space associated for a planned development permitted outright in the FP
zone?
Issue Summary: Planned Developments are required to have sixty-five percent open space.
The Applicant has proposed to use FP zoned lands as part of the open space acreage. "Open
space" is an outright use in the FP zone. Generally, proponents and the 2019 Hearings Officer
argue that PUDs are allowed conditionally in the FP zone and that the outright use of "open
space" is further evidence of the code's allowance for the PUDs with open space in the flood
plain. Generally, opponents and the 2015 Hearings Officer argue that the proposed use is
PUD and that the outright use "open space" is irrelevant.
2015 Hearings Officer: The Hearings Officer finds that although "open space" is listed as an
outright permitted use in the FP Zone, and the proposed CC&Rs provide protection for such
areas consistent with the purpose of the FP Zone, the applicant's proposed open space is not
a stand-alone use. Rather, it consists of open space lots and uses within a PUD which is not
a use permitted outright in the FP Zone. In other words, the open space use is dependent
upon the rest of the PUD use.
Calfa Holdings: Although "open space" is an outright permitted use in the flood plain zone,
"open space" within a PUD is not. A PUD or cluster subdivision is not an outright permitted
or conditionally permitted use in the flood plain zone, and thus, by the Code's plain language,
using flood plain zoned land within a PUD or cluster subdivision as open space is not
permitted.
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 4 of 20
...this Board is now in the position to set the policy for the County going forward. The Board
should be analyzing this issue not just in the context of this present case, but all future
decisions going forward.
Deschutes County Code § 18.96.040 provides that "open space" is an outright permitted use
in the flood plain zone. But neither PUD nor cluster subdivisions are outright permitted or
conditionally permitted uses in the flood plain zone. See DCC 18.96.030-.040. The 'open
space" being applied in this context is within a PUD, and if a PUD cannot be permitted in the
flood plain zone, then the open space within that PUD cannot be permitted either.
Friends of Lower Bridger ("FOLB") Rebuttal: Section 18.96.030 defines "open space." It states
clearly that it must be "preserved and continued in its present use." Applicant claims that by
using Flood Plain land as "open space" this standard is not violated. Yet Open Space in a
Cluster Development is intended to be communal land, used in replacement for what would
otherwise be individualized large tracts compatible with surrounding uses.
This land is heavily used already, just not by humans. Flood Plain land is very rare in our
climate and elevation. It is properly preserved, not "double counted" so the application for
more homes can be approved.
2019 Hearings Officer: DCC 18.96.030 lists the uses permitted outright in the Flood Plain
zone. One of those uses is "Open Space". The Hearings Officer in this case finds that Tracts
C and E would meet the definition of Open Space because the Tracts would be "preserved
and continued in its [their] present use" and would conserve and enhance natural resources,
would protect streams, promote conservation of wetlands and enhance recreation
opportunities.
Applicant Final Argument (Hearings Officer): Staff notes that the Applicant agrees with the
2019 Hearings Officer decision and has included the following additional argument.
The Flood Plain Zone is the only zone in the County where "open space" is a listed use.
Because property owners typically do not seek or need a permit to leave or conserve land in
its present use, the drafters must have intended to allow "open space" associated with some
other use when they included this as a specifically listed use in the Flood Plain Zone.
3. Does the FP zoned land count towards PUD housing density and density bonuses?
Issue Summarv: Planned Developments use an "equivalent overall density factor" rather
than a minimum lot size. This affords a housing density bonus from one unit per 10 acres
to one unit per 7.5 acres in the Rural Residential 10 ("RR10") zone, increasing the number of
allowed units in the development. Unlike the RR10 zone, no density bonus is included in the
FP lot size standards. The PUD proposal relies on RR10 and FP zoned land together for the
density calculation to allow for 19 residential lots.
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 5 of 20
2015 Hearings Officer: "The Hearings Officer has found the proposed PUD is not a use
permitted outright or conditionally in that zone. Therefore, I find the approximately 30 acres
of FP -zoned land included in the subject property cannot be included in the density
calculation."
2019 Hearings Officer: The Hearings Officer, in this case ... determined that the area
designated Open Space including area with the Flood Plan Zone, should be included in the
computation of the PUD acreage.
Staff understands the Hearings Officer to reason that, since open space is allowed in the FP
zone and since open space is a required component of a PUD, that the density calculation
should be performed against the whole PUD, including the FP zoned lands proposed for
open space use, and the RR10 zoned lands proposed for lot development and open space
use.
Calfa Holdings: ... the Hearings Officer's purported reliance on the definition of "open space,"
which is land "that would, if preserved and continued in its present use enhance natural or
scenic resources," is misguided. By definition, the flood plain zoned lands being used as
"open space" within the PUD are not being "continued in its present use'; there is now
increased density directly adjacent to those lands. The definition of "open space" does not
provide any express authority for flood plain zoned lands to be used as open space in a PUD,
nor does actual, practical impacts of that interpretation comport with the Code's limited
definition of "open space."
Applicant Final Argument: Staff notes that the Applicant agrees with the 2019 Hearings
Officer decision and has included the following additional arguments.
Open space is a listed use in the Flood Plan Zone and the listing of open space as a use
allowed in that zone means open space associated with a planned development in an
adjacent zone. The County has historically allowed Flood Plain zoned acreage to be included
as open space in cluster and planned developments.
The County Code expressly allows for gross area calculations to determine density and lot
sizes. The idea that the Applicant is supposed to subtract the Flood Plain zoned land from
the project area calculations for purposes of determining density or lot sizes is not supported
by the County Code or historical practice.
4. Does sufficient financing exist to assure the proposed development will be
substantially completed within four years of approval?
Issue summary: The Planned Development code requires a demonstration of existing
financing to complete the project, as proposed. The applicant had not provided detailed cost
or financial information until the current hearing before the Board.
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 6 of 20
2015 Hearings Officer: "The applicant did not submit any evidence supporting this statement.
The Hearings Officer finds a simple conclusory statement does not constitute sufficient
evidence to demonstrate compliance with this conditional use approval criterion."
2019 Hearings Officer: "The Hearings Officer finds this criterion is not satisfied by the simple
statement that "the applicant has the financial resources and demonstrated capacity to
complete the development." The Hearings Officer finds Applicant must provide something
more that such a conclusionary statement."
FOLB Rebuttal: FOLB makes extensive arguments in their rebuttal submittal dated
November 13, 2019 that the sufficient financing issue has not been sufficiently resolved. Staff
summarizes these as follows:
• Applicant's cost estimates do not address additional environmental concerns
raised by FOLB.
• How Applicant can be flush with cash in a money market account, but require
approval of the east side development to fund the west side? Both cannot be
true.
• "Applicant" is Lower Bridge Road, LLC. However, "Applicant" is not the signer
of the application or holder of the money market account offered as assurance
of financial stability to complete the proposed project in 4 years. It is critical to
determine who owns the property, who controls the property, and what
financial means are available to the Applicant itself.
• FLOB describes a number of lawsuits directed at members of the development
team. [A] suit, if successful, will wipe out the money market fund offered for
financial security of the project. Thus, with one event, the feasibility of this
project is destroyed.
Applicant Final Argument: The Applicant submitted a cost estimate prepared by a registered
civil engineer to complete the subdivision, including both soft and hard costs and a 10%
contingency. The Applicant also submitted a letter from the CFO of Realvest as the entity
responsible for financing the project together with a money market statement,
demonstrating funds sufficient to and committed to building the project. Finally, in response
to opponents evidence of past bankruptcy filings, the Applicant submitted evidence
demonstrating the Realvest Chapter 11 Plan for reorganization was accepted and was fully
completed in 2010.
5. Has the Flood Plain zoned land received an exception to the resource use acreage
standards? (Goal 3)
Issue summary: Minimum lot sizes in resourced zoned lands are 80 acres, with certain
exceptions, as part of the State Goal 3 program to preserve and protect farm uses. The Flood
Plain zone, accordingly, has a minimum lot size of 80 acres, where land has not "received an
exception to the Statewide Planning Goals for resource uses". Flood Plain zoned lands that
have received an exception have a minimum lot size of 10 acres.
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 7 of 20
On the subject property, the Flood Plain zone holds a "Surface Mining" comprehensive plan
designation. Does that designation count as an exception?
2015 Hearings Officer: "The Board's 2008 plan amendment and zone change decision did not
include any FP -zoned land. Because the FP Zone was not modified and it is not considered a
"resource" zone, the Hearings Officer finds no goal exception was or is required, and
therefore the creation of new lots in the FP -zoned portions of property is subject to a 10-acre
minimum lot size."
2019 Hearings Officer: "The Hearings Officer finds that no Goal 5 exception is required in this
case and therefore the minimum lot size is ten (10) acres."
Staff Comment: It appears that the 2019 Hearings Officer did not directly address "resource
use" and Goal 3.
Calfa Holdings: The Hearings Officer erred in finding that the minimum lot size for flood plain
zone has been met in this case. DCC 18.96.110(C) requires a minimum lot size of 80 acres for
"areas which have not received an exception to the Statewide Planning Goals" for resource
uses. Specifically, the flood plain zoned portion of this property has not received an
exception to resource goals (Goals 3 and 4).
LanclWatch: The Hearing Officer misinterpreted and misapplied the code by not applying the
80-acre minimum lot size where no exception has been taken to the statewide planning
goals. DCC 18.96.110(C). The provision implements the County's Program to Achieve Goal 5
for riparian areas and wetlands in Ordinance No. 94-007, which requires a minimum lot size
of 80 acres for Flood Plain -zoned properties in order to prevent an "increase in density of
residential lots in or adjacent to riparian areas" that "could result in a decrease of habitat
effectiveness because of disturbance to wildlife."
Applicant Final Argument: Opponents argue the minimum lot size for parcels on the Flood
Plain zone is 80 acres, not 10 acres, because the subject property did not receive an
exception to the Statewide Planning Goals for resource uses. The record shows the subject
property was rezoned from Surface Mining to RR-10 in 2008 through the non -resource
designation process, which is an alternative method to the goal exception process. That 2008
Zone Change Decision concluded there are no Goal 3, 4 or 5 resources on the subject
property and is the equivalent of a goal exception.
The County Flood Plain zone was drafted and historically applied as if it were an overlay or
combining zone. This minimum lot size provision was adopted to allow 10 acre minimum lot
sizes in FP zoned areas combined with, or in this case split -zoned with, County exception
lands (RR-10, SR 2 1/2, MUA-10) and 80 acre minimum lot sizes in FP zoned areas combined
with County resource lands (EFU, Forest). Because the subject property received a
nonresource zone change in 2008 and that decision specifically found there to be no Goal 3,
4 or 5 resources on the subject property, the 10 acre minimum lot size applies to the Flood
Plain zoned portions of the property.
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 8 of 20
6. Has the environmental history at the mine been adequately addressed and resolved?
Issue Summary: The subject property consists primarily of that portion of the former
Oremite mine site east of Lower Bridge Road. This 113-acre area was previously used
primarily for aggregate mining and hot -mix asphalt plant operations. Diatomite mining and
processing was conducted primarily on an adjacent larger property on the west side of Lower
Bridge Road.
2019 Hearings Officer: The Hearings Officer finds the DEQ and OHA are State agencies that
possess technical and scientific expertise in matters relating to the environment including,
but not limited to ground, water and air pollution/contamination. The Hearings Officer finds
Applicant participated in the DEQ's VCP and the OHA review processes.
The Hearings Officer finds the DEQ process is a public process and that opponents of this
application had the right to participate. The Hearings Officer that the DEQ and OHA
determinations should be considered "expert" evidence in this case.
The Hearings Officer finds, based upon the evidence in the record of this case (which
supplements evidence that was in the record of the 2015 Land Use Decision) that the
Applicant has demonstrated that the Subject Property is suitable for the proposed
residential PUD considering man-made and natural hazards. Specifically, the Hearings
Officer finds that Applicant, through [DEQ and OHA determinations,
Geotechnical/groundwater reports, and 2015 DEQ reports] have demonstrated that
environmental clean-up activities at the Subject Property have been completed and the
Subject Property "environmental conditions are currently protective of public health".
FOLB Open Record: The Department of Environmental Quality No Further Action ("NFA")
letter before the Board excludes the west 30 acres. Applicant requires the west 30 acres be
included in this tentative plan to meet required open space. Since not all the land being
"used" is released pursuant to the NFA, this condition is not met. The OHA letter is based on
the NFA letter. Since the No Further Action Letter from DEQ doesn't release the 30 acres
from environmental contamination concerns, the OHA letter cannot make findings of "No
Apparent Health Hazard" either.
FOLB Rebuttal: FOLB makes extensive arguments in their rebuttal submittal dated
November 13, 2019 that the environmental contamination issues have not been sufficiently
resolved. Staff summarizes these as follows:
• No evidence and Applicant has offered no proof of supervised disposal of the
hazardous and radioactive materials knows to have been stored on the site
and poured into the fractures reaching groundwater levels.
• Liquids such as the Boeing solvents were reportedly poured directly into the
lagoons, where they were free to sink through the vertical fissures into the
groundwater table and the sources of the Deschutes River itself.
• The NFA letter issued by DEQ is not based on DEQ's testing, or even
independent scientific study. It is based on incomplete information from the
current owners, omitting the timeline information and decades of knowledge
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 9 of 20
about what happened on the site. Because the NFA letter is based on
incomplete information, the NFA letter issued is not reliable.
• The NFA Letter does not cover the entire subject property.
• The DEQ internal memo for the NFA submitted by FOLB on 11.6.19 notes that
the east side uses being evaluated are aggregate mining and hot mix asphalt
plant only. We now know thatthe site also served as a Deschutes County dump
site 1966-1972, with no record of its removal. Because of the Owner's failure
to disclose the dump's existence, the DEQ NFA, and consequently the OHA
Letter relying on the DEQ NFA, are properly deemed unreliable. Because these
"assurances" are no longer reliable, the 2008 Conditions are not met.
• FOLB argues that significant discrepancies in well sampling information cast
those results into doubt.
• The NFA letter foundation is erroneous so subject to withdrawal.
• Processed DE, because of the length of time it was made on site ... is a particular
concern. The October 30 hearing testimony indicated there was dispute about
the nature and potential harm of this material. [Submitted]... reports describe
the health -threatening nature of the material cooked for over 20 years on the
subject property, including dumping of waste on the site.
Applicant Final Argument: The environmental clean-up for East Area is complete and both
DEQ and OHA have issued letters verifying it is safe for residential use. The Applicant and
DEQ have submitted additional evidence demonstrating those environmental certifications
apply to the entire area which is the subject of this application, including the 29 acres west
of Lower Bridge Road, and including an analysis of the West area sufficient to establish it
poses no environmental hazard to residential use on the East area.
The testimony of the opponents on the historical uses of the property for solid and
hazardous waste disposal have been addressed through the DEQ and OHA certification
process in which the opponents participated. DEQ and OHA are the agencies with the
expertise to certify the environmental condition of the property and ... the evidence from
DEQ and OHA that the property is safe for residential use [is] both credible and persuasive.
7. Will scenic resources be adequately protected?
Issue Summary: The Planned Development code requires that, "Adequate provision is made
for the preservation of natural resources such as bodies of water, natural vegetation and
special terrain features." Parties disagree whether the proposed plan adequately protects
the scenic resources of the Deschutes River canyon.
2015 Hearings Officer:
Deschutes River and Canyon. "...if the proposed PUD is approved on appeal, it should be
subject to a condition of approval prohibiting the construction of any structure, whether or
not it requires a building permit, closer than 50 feet from any rimrock on each PUD
residential lot."
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 10 of 20
Deschutes River Scenic Waterway. "...As discussed in the findings above, the Hearings Officer
has found that if the proposed PUD is approved on appeal, it should be subject to conditions
of approval requiring that all dwellings within the PUD be set back a minimum of 100 feet
from the OHWM of the Deschutes River and at least 50 feet from any rimrock, and that all
structures be prohibited within the Deschutes River canyon."
Scenic Views. 'The Hearings Officer finds that dwellings in the proposed PUD will not block
or interfere with views of the river or the Cascade Mountains from adjacent or nearby
properties to the east and north. Opponents who live across the Deschutes River east of the
proposed PUD object to having to look at dwellings on the subject property. However, I find
that with the 2008 rezoning of the subject property to RR-10, opponents no longer had
reasonable expectations that the subject property would remain undeveloped."
2019 Hearings Officer:
Deschutes River and Canyon. The Hearings Officer found that under the Riparian Area
Management Plan and associated conditions of approval, this resource would be adequately
protected.
Deschutes River Scenic Waterway. The Hearings Officer found that, with per -structure review
of homes by Oregon Parks and Recreation ("OPRD"), this resource would be adequately
protected.
Scenic Views. The Hearings Officer finds that with conditions requiring setbacks from the
Deschutes River and rimrock, a prohibition upon Applicant seeking exceptions to the County
rimrock standards or LM review standards, and a prohibition upon Applicant seeking Scenic
Waterway exceptions this issue has been adequately addressed.
Oregon Parks and Recreation Department: The proposed development at Lower Bridge Road
is incompatible with Middle Deschutes Scenic Waterway "Scenic River Area" category, and as
such a 1 Not riverfront housing development might not be granted approval by the Oregon
State Parks and Recreation Commission. Such development is not in line with the existing
agricultural and low -density development, and would require significant vegetation
screening and rim rock setbacks to ensure that the structures do not intrude on the view
from the river.
The proposed subdivision lies within an area categorized as "Scenic River Area," defined in
the Middle Deschutes Management Plan as: "Areas [that] may be accessible by roads, but
are largely undeveloped and primitive except for agriculture and grazing. River segments
considered 'Scenic'are managed to maintain or enhance their high scenic quality, recreation
value, fishery and wildlife habitat. The intent is to preserve their largely undeveloped
character while allowing continued agricultural land use".
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 11 of 20
The Lower Bridge Road, LLC development plan lots are designed to maximize the housing
density on the upper plateau overlooking the river; from the river's edge, this would be visible
as a high -density housing development. The proposed density and clustering along the river
would deplete the river corridor's "relatively pristine condition", and our preliminary
assessment is this would undermine the values the Scenic Waterway designation was
established to protect. An actual, detailed review would be conducted after receiving the
required notification from the property owner prior to development, but it seems wise to
raise this concern as early as possible to provide the property owner a chance to adjust their
plans now in a way that makes eventual compliance with scenic waterway rules easier.
Applicant Final Argument: Oregon State Parks has raised issues regarding the State Scenic
Waterway designation and compliance with the State Scenic Waterway rules. The County
implements scenic protections through the Landscape Management Combining Zone, which
applies to the subject property and which requires individualized review of each proposed
dwelling through a land use process prior to building permit approval. LM review is required
for each lot in this case and is a condition of tentative plan approval. The Applicant has
demonstrated, through the submission of Exhibits and testimony, it can meet the setbacks
for the LM zone. Scenic Waterway review, through Oregon State Parks, is also required for
each proposed dwelling prior to the issuance of a building permit and is also a condition of
land use approval. These review processes are in place to protect scenic resources and
adequately protect the scenic area of the river. The issues State Parks raises with regard to
the Scenic Waterway designation are not related to review criteria for this subdivision
request.
8. Will riparian habitats associated with the Deschutes River and nearby rimrock be
adequately protected?
Issue Summary: The Planned Development code requires that, "Adequate provision is made
for the preservation of natural resources such as bodies of water, natural vegetation and
special terrain features." Parties disagree whether the proposed plan adequately protects
the riparian habitats of the Deschutes River and associated rimrock habitats.
2015 Hearings Officer:
Fish and Wildlife. The Hearings Officer found that, with conditions of approval, this resource
would be adequately protected.
Borden Beck Wildlife Preserve. "The applicant proposes to protect all flood plain areas,
wetlands, riparian habitat and canyon associated with the Deschutes River by including such
areas within open space Tracts C and E, both of which are located across the river from the
Borden Beck Wildlife Preserve.
I find the design of the proposed PUD, and implementation of these setbacks and LM review,
will minimize impacts on the wildlife habitat."
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 12 of 20
2019 Hearings Officer:
Fish and Wildlife. The Hearings Officer found that, with conditions of approval, this resource
would be adequately protected. (See Borden Beck discussion, below).
Borden Beck Wildlife Preserve. The Hearings Officer finds that with conditions requiring
setbacks from the Deschutes River and rimrock, a prohibition upon Applicant seeking
exceptions to the County rimrock standards or LM review standards, a prohibition upon
Applicant seeking Scenic Waterway exceptions, and modification of the CC&R's to reflect
ODFW's request to "ban the feeding of wildlife and require "wildlife friendly fencing" (DCC
18.88.070), the Applicant has adequately addressed this issue.
Gould: The proposed drilling exempt domestic wells for the 19 new lots should not adversely
impact the federally listed Threatened Bull Trout or the Steelhead Trout now 10j
reintroduced species above Pelton Round Butte Dam. Since exempt wells are exempt from
the Deschutes Basin Mitigation Program obligation, this does not mean the water withdrawal
from those wells does not have an adverse impact on the natural resources of the abutting
Deschutes River, it's fish habitat and/or on the rejuvenating spring recharges that bring life
at cold water refugia along and in the Federally designated Wild and Scenic Middle Deschutes
River.
Beard: Along with the following organizations, we believe the Goal 5 wildlife objectives and
riparian area protections are not being properly met or addressed for this PUD.
• Oregon Department of Fish and Wildlife (ODFW)
• Oregon Parks and Recreation Department (OPRD)
• Redmond Area Park and Recreation District (RAPRD)
• Central Oregon Land Watch (COLW)
• Oregon Land and Water Alliance (OLAWA)
The intent of PUD's is to enhance wildlife protection by "clustering" development, and
therefore, allowing larger open spaces. However, this intent is circumvented whenever
development abuts a riparian area --as the most desirable home sites are always nearest the
waterway. In these instances a PUD places houses and human activity as close as possible
to wildlife habitat and maximizes all of the negative impacts.
Oregon Parks and Recreation Department: because the "Riparian Area Management Plan"
(RAMP) was completed during the winter season (December 14, 2018), the natural resource
values identified are unlikely to accurately represent the abundance of wildlife and flora
present along the riparian area. Because of the riparian area was surveyed during dormancy,
it is not an adequate baseline to measure the existing condition or set standards to preserve
the integrity and biodiversity of the riparian ecosystem at this stretch of the Middle
Deschutes Scenic Waterway.
Oregon Department of Fish and Wildlife: (Staff summary of Heath/Walsh hearing testimony)
Elements of the RAMP are good, but the development will impact the riparian habitats. It is
difficult to mitigate habitat impacts. Trails are proposed and will bring people, dogs, and
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 13 of 20
associated habitat impacts into the riparian habitats. Any increased use of this area will
compound effects.
ODFW has the following concerns:
• The project as proposed will negatively affect mule deer winter range and does not
meet mitigation criteria.
• The project as proposed will negatively affect habitat in the narrow riparian corridor
despite the Riparian Area Management Plan.
• The project as proposed will negatively affect potential nesting habitat for Golden
Eagles and other sensitive species.
ODFW recommends that the County ensure there is a sufficient compensatory mitigation
plan to address all three of the Category 2 habitats outlined above prior to approving the
application. ODFW urges the county to implement stringent setback standards for any future
development of the property.
If this development is approved, ODFW recommends CC&R's that ban the feeding of wildlife,
and require wildlife friendly fencing in accordance with DCC 18.88.070 throughout the
development. Due to the change in land use, ODFW will not respond to any wildlife damage
complaints within this development.
Applicant Final Argument: The comprehensive Riparian Area Management Plan was
prepared by a professional biologist and contains prohibitions on any development in the
Flood Plain and riparian areas, with stringent and cohesive management strategies designed
to protect and monitor these areas. The proposed CC&Rs contain funding, enforcement and
review provisions to ensure the plans are carried out and progress is monitored by biologist
review. This proposed development plan, even with the additional density allowed by the
planned/cluster form of development, provides more protection for the scenic and riparian
resources than a standard subdivision. This area is a former abandoned mine with little
native vegetation, not a pristine forested or protected area. The Applicant's efforts to
remediate and reuse the former mine site and the proposal to develop the 19 lot subdivision
with 94.1 acres of protected, cohesively managed open space will be a significant
improvement to the scenic and riparian areas on the subject property.
9. Has the Applicant adequately addressed Surface Mining Impact Area ("SMIA") zone
criteria?
2019 Hearings Officer: The Hearings Officer finds SMIA review, in this case, is required to be
conducted as part of the PUD subdivision process. The Hearings Officer finds the Applicant
deferred the SMIA review until the building permit process for dwellings on each proposed
lot. The Hearings Officer finds that Applicant's failure to seek SMIA Site Plan approval at this
stage (PUD/tentative plan approval stage) results in this criterion not being met.
Applicant Final Argument: The Applicant clarified and the record shows the Applicant did
apply for SMIA review, paid the requisite fee, submitted the subdivision and builder's
envelope plans for site plan review, and the application was properly noticed. The Applicant
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 14 of 20
submitted further evidence on Appeal establishing that all proposed buildable areas were
over 250' from the two nearby Surface Mine zones. The Applicant also agreed to record, as
a condition of final plat approval, the requisite Waiver of Remonstrance against all lots in the
proposed subdivision.
10. Is demonstration of compliance with rimrock standards required in this decision?
2019 Hearings Officer: The Hearings Officer, in this case, finds that the rimrock setback
standards are part of the Design review process of DCC 18,84.080 which itself is part of the
LM Site Plan review process. The Hearings Officer has previously found that LM Site Plan
review is required for new structures and certain alterations to structures. The Hearings
Officer found the LM Site Plan review is required at the building permit stage for the
new/altered structures and not at the PUD review stage. The Hearings Officer finds the most
appropriate time to consider the rimrock setback standards will be upon the LM Site Plan
review for new structures/altered structures.
While the Hearings Officer may concur with Staff and many opponents of this proposal that
in the past "rimrock may have been buried"the Hearings Officer also believes that Applicant's
proposed PUD subdivision application in this case is to be judged on the current condition
of the Subject Property and under the current laws/codes.
FOLB Rebuttal: Determination of the location of the true rim is critical to protection of the
habitat, the river, and the soil stability. That's why rimrock is protected. FOLB asks this Board
to require a rimrock survey before a site plan is approved, so that true site dimensions may
be determined for feasibility analysis.
Without County determination of where the rimrock is located, the setback dependent upon
it cannot be fixed, and building envelopes cannot be determined. And without building
envelopes, feasibility of development on each site cannot be assured.
LanclWatch: The Hearing Officer further erred in finding that the applicant can defer until the
building permit stage a showing that the Landscape Management Zone rimrock set backs of
50 feet, DCC 18.84.090(D), will be met. When a development proposal omits or otherwise
defers until a future determination whether an approval standard will be met, the application
must be denied, made more certain, or postponed.
Applicant Final Argument: Staff understands the Applicant to concur with the 2019 Hearings
Officer.
11. Are the proposed lots developable, given applicable constraints on the building lots?
Issue Summary: DCC 17.36.170 requires: "The size, width and orientation of lots or parcels
shall be appropriate for the location of the land division and for the type of development
and use contemplated..." This provision is intended to prevent the creation of new lots that
would not be ultimately developable. The decision maker must find that the lot layout would
allow each lot to be developed with a house, well, and septic system, considering all
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 15 of 20
applicable constraints. Opponents have argued that the small lots, often with significant
acreage down the canyon slope, are not feasible to develop, given constraints such as
rimrock setbacks and well -to -septic separation requirements.
2015 Hearings Officer: "...the applicant has failed to demonstrate the size and configuration
of each proposed PUD lot will allow the siting of dwellings, on -site septic systems and
individual wells consistent with the 50-foot setback from any rimrock and all other applicable
yard and setback requirements."
2019 Hearings Officer: The Hearings Officer finds that with conditions set forth in the findings
for DCC 18.96.110(C), DCC 18.128.015(A), DCC 18.128.210(A) this approval criterion can be
met.
FLOB Open Record: The required setbacks and dimensional standards applicable to the site
are quite restrictive, as is appropriate in such a complex location. Rimrock determination will
be particularly complex. Determination of the location of the true rim is critical to protection
of the habitat, the river, and the soil stability. FOLB asks this Board to require a rimrock
survey before a site plan is approved, so that true site dimensions may be determined for
feasibility analysis.
Applicant Final Argument: The record includes the Applicant's conceptual building envelopes
and a typical residential building plan for a 4,000 square foot home, well, septic and reserve
to demonstrate there is ample area on each lotto site a dwelling and all necessary residential
components and meet the required setbacks. This evidence is supported by the testimony,
both oral and written, of a local builder who reviewed the evidence and attested to the fact
that all lots contain ample area to site a residence and all necessary infrastructure.
12. Do old roads undermine acreage calculations?
Issue Summary: The subject property has several public rights of way in proposed open
space that have not been shown on development figures to date. Do these right of ways
count toward the sixty-five percent open space acreage requirements? If not, the application
falls below required acreage standards.
Gould: Applicant does not show 3 public ROW's that traverse taxlot 502 where the project
proposes Open Space in Tract E and Tract F of the Cluster Development. Applicant has
appropriately removed the ROW acreage for Lower Bridge Way 2.8 acres per their 5-14- 2019
tentative subdivision plan' but has not removed the ROW acreages for the Roy L Kidder Road'
which has a 60' wide ROW, the Willamette and Cascade Mountain Military Wagon Road and
the Lambert Road; the latter being also known as the 1909 Lower Bridge Road.
Road Department: Ms. Gould is correct that right of ways for Kidder Rd, Willamette Valley
Wagon Rd, and Lower Bridge (Lambert) Rd exist over the subject property and that the
applicant's current tentative plan does not appear to show these right of ways. Road
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 16 of 20
Department will defer to Community Development Department as to whether or not the
applicant has deducted or should deduct these areas from their proposed open space area.
Staff: These road areas are allowed to be counted as part of the area of the property, per the
DCC 18.04.030 definition of lot area, in relevant part, "...the Planning Director or Hearings
Body shall include in gross lot areas all streets, roads, and easement of access to other
property that would accrue to that lot if the road, street or easement were vacated..."
13. Is the Applicant authorized to make this application?
Issue Summary: Paul Christensen, as the President of Realvest LLC, signed the application.
Realvest Corporation Is the sole member of LBR Manager, LLC, which is the manager for
Lower Bridge Road, LLC, which is the property owner. Under DCC 22.08.010, applications
must "be submitted by the property owner or a person who has written authorization from
the property owner".
FOLB Rebuttal: The actual ownership of the subject property is split, and that the application
made to the County lacks full authority of the land's ownership to be processed and
approved. All mineral rights were split off the ownership of the subject property, and are
presently held by an Oregon Corporation that has been dissolved, Central Oregon
Diatamaceous [sic] Earth, Inc.
Staff: The context of the word "the" as used in Section 22.08.010 is within a definition of
property ownership for purposes of submitting a land use application in an environment
where it is not unusual for there to be multiple property owners - e.g., fee owners, contract
purchasers, and easement holders. In this context, staff believes it is not reasonable to read
the word "the" as meaning a particular owner. Rather, staff believes the most reasonable
interpretation is that the word "the" is a synonym for "a" or "an." In other words, as used in
Section 22.08.010, the term "the property owner" means "a property owner"- i.e., at least
one property owner if there are more than one.
14. Does "transferring' density from FP zoned land to residential zone lands act as a plan
amendment with widespread impacts on infrastructure, housing, and Goal 5
inventoried resources?
Issue Summary: Opponents argue that the 2019 Hearing Officer's decision allows
undevelopable land in the Flood Plain to be credited towards new additional residential
density in upland areas. Since these additional residential units were not accounted for when
analyses of housing demand, infrastructure requirements, and protection of Goal 5
resources were conducted, this change in code interpretation undermines the assumptions
and conclusions of those analyses. Specifically, opponents argue that approval of this
proposal would act in many ways like a post -acknowledgment plan amendment ("PAPA"),
and an economic, social, energy and environmental ("ESEE") analysis should be required.
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 17 of 20
Hearings Officers: This issue was not argued in 2015 and staff believes that the 2019
Hearings Officer's decision does not directly address this issue.
Calfa Holdings: The Hearings Officer's interpretation allows for increased density near and
adjacent to flood plain lands and inventoried resources, and thus, requires an ESEE analysis.
Effectively, the Hearings Officer has authorized a density transfer of the upland portions of
any PUD or cluster development using flood plain zoned land, since the flood plain zoned
areas within that development can now be used toward open space and still count toward
the total acreage under which the development's density is calculated. This interpretation
allows for the upzoning of developable property adjacent to flood plain zoned lands by
shifting density from the "undevelopable" portion (flood plain) to the "developable" portion.
Consequently, this interpretation is a wholesale shift in policy that implicates the
comprehensive plan provisions with respect to development in or near inventoried
resources, like flood plain areas, infrastructure to support development, and compatibility
of new uses with surrounding existing land uses and resources. Because this shift in policy
acts in many ways like a post -acknowledgment plan amendment ("PAPA"), an economic,
social, energy and environmental ("ESEE") analysis is required pursuant to state law to
evaluate and ascertain the conflicting uses with inventoried resource lands.
This Board's review of the Hearings Officer's decision goes beyond the present development
application under appeal; the Board's decision will set in place a policy for the County
regarding Goal 5 inventoried resources. Upholding the Hearings Officer's interpretation on
the use of flood plains as open space in PUDs, without an attendant ESEE analysis, presents
several errors under the state's Goal 5 procedure and process.
Applicant Final Argument: Open space is a listed use in the Flood Plan Zone and the listing
of open space as a use allowed in that zone means open space associated with a planned
development in an adjacent zone. Such code language was in place at the time of adoption
and acknowledgment of the Goal 5 program and remains in place today. The County has
historically allowed Flood Plain zoned acreage to be included as open space in cluster and
planned subdivisions and the 2015 Hearings Officer decision ruling otherwise is not binding
and is, in fact, the only County decision ever making such interpretation. The record shows
the Flood Plain zone was adopted based on the Flood Insurance Study maps for Deschutes
County prepared by FEMA and the subject property is located within Zone A on the FIRM
map. The record further shows a cluster subdivision like the one proposed in the present
case is consistent with the FEMA Guidelines for development within a Zone A area. The use
of Flood Plain zoned acreage as open space in the present request, with a cohesive
stewardship plan prohibiting any development in the Flood Plain, is consistent with the Goal
5 program and does not authorize a new conflicting use.
111111. NEXT STEPS
Deliberations are scheduled for December 18, 2019.
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 18 of 20
DESCHUTES COUNTY PLANNING DIVISION
f Z4
Will Groves, Senior Planner
Attachments:
Binder 4
Item No.
2019-12-04 Staff Memo
142
2019-12-04 Decision Matrix
141
2019-11-20 Lower Bridge Applicants Final Argument
140
2019-11-13 Rebuttal Testimony L Dickson
139
2019-11-13 Rebuttal Testimony T Lewis
138
2019-11-13 Rebuttal Testimony N Gould
137
2019-11-10 Rebuttal Testimony C Smith (Road Dept)
136
2019-11-06 Open Record Period 1 N Gould Testimony with exhibits
135
2019-11-06 Open Record Period 1 L Dickson Testimony with exhibits
134
2019-11-06 Open Record Period 1 J Berreen, E Beard, D Jenkins testimony
133
2019-11-06 Open Record Period 1 D Lozito, James Taylor & Janis Taylor testimony
132
2019-11-06 Open Record Period 1 D Lozito Testimony
131
2019-11-06 Open Record Period 1 Applicant Testimony
130
2019-10-30 Hearing Exhibit Sheet
129
2019-10-30 Hearing Exhibit A -Staff Presentation
128
2019-10-30 Hearing Exhibit B - Calfa Holdings Testimony
127
2019-10-30 Hearing Exhibit Cl - Life of the Mine (D. Jenkins)
126
2019-10-30 Hearing Exhibit C2 - 2016-03-07 US Dept of Interior Itr. to Mr. Jenkins
125
2019-10-30 Hearing Exhibit C3 - 1969 EPA report on Public Dumps (D. Jenkins)
124
2019-10-30 Hearing Exhibit C4 - Closing Open Dumps EPA Report (D. Jenkins)
123
2019-10-30 Hearing Exhibit C5 - 2008-08-14 Bulletin Article (D. Jenkins)
122
2019-10-30 Hearing Exhibit C6 - Oversize posters (Converted for Printing) (D. Jenkins)
121
2019-10-30 Hearing Exhibit D - Various Maps (D. Lozito)
120
2019-10-30 Hearing Exhibit E - Map (E Beard)
119
2019-10-30 Hearing Exhibit F - Oversize USGS map (N Gould)
118
2019-10-30 Hearing Exhibit G - Oversized Maps (Applicant)
117
2019-10-30 Hearing Exhibit H - Applicant Power Point
116
2019-10-30 Hearing Exhibit I - COLW Comments (Carol MacBeth)
115
2019-10-30 Hearing Exhibit J - Request to Speak forms (various)
114
2019-10-29 OPRD Submittal
113
Binder 3
2019-10-29 Calfa Holdings Appeal Memo
112
2019-10-28 T Lewis Supplemental Information
111
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 19 of 20
2019-10-28 T DeBone Photos
110
2019-10-28 Lower Bridge Pre -Hearing BoCC Work Session
109
2019-10-28 Lower Bridge BoCC Work Session Memo
108
2019-10-27 P Lipscomb Testimony (OLAWA)
107
2019-10-27 D Lozito testimony
106
2019-10-24 J Sifuentes testimony
105
2019-10-23 B Schwarz testimony
104
2019-10-23 S Redfield testimony
103
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 20 of 20
Decision Matrix: (File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) - Lower Bridge
Is a Planned
• "Planned development" is not a use
• The language used in DCC 18.96.040 is
• Contrasting Hearing Officer decisions highlight
Is a Planned Development
Development
permitted outright or conditionally in
clear, plain and unambiguous. "Planned
an important code interpretative issue.
application allowed in the Flood
application allowed
the FP Zone.
developments" are subdivisions.
Plain zone?
in the Flood Plain
In the face of code ambiguity, parties argue at
zone?
• The fact that "subdividing" land is
• Proposed subdivision is consistent with
length if this use should be allowed. This is
a. If yes, continue deciding
permitted in the flood plain zone does
FEMA guidelines.
addressed in subsequent deliberation
other criteria.
(DCC 18,96.030, 040)
not mean PUDs are permitted.
questions.
b. If no, the proposal does not
• Outright "open space" use in FP zone
comply with the allowed uses
The three types of subdivisions
corroborates this interpretation.
• No flood hazard/loss impacts anticipated
in DCC 18.96. No further
1
("subdivision", planned, cluster) make
under this proposal.
direction is necessary, or
clear they have different
Matches 1999-2015 county approach to
i. Deny the application and
characteristics and are intended to be
this interpretation.
continue deciding other
reviewed and approved under
criteria.
different substantive standards.
Legislative code amendment is a
better process to resolve this
question.
Is open space
• Although "open space" is listed as an
• The Flood Plain tracts would be
• Planned Developments are required to have
Is open space associated for a
associated for a
outright permitted use in the FP Zone
"preserved and continued in its [their]
sixty-five percent open space.
planned development permitted
planned
the applicant's proposed open space
present use" and would conserve and
outright in the FP zone?
development
is open space lots within a PUD which
enhance natural resources, would
Proposal to use FP zoned lands as part of the
permitted in the FP
is not a use permitted outright in the
protect streams, promote
open space acreage.
a. If yes, continue deciding
zone?
FP Zone.
conservation of wetlands and
• First deliberative question likely determines
other criteria.
b. If no, either:
(DCC 18.96.030, 040)
. If a PUD cannot be permitted in the
enhance recreation opportunities.
answer to this question.
i. Deny the application. No
flood plain zone, then the open space
• Flood Plain Zone is the only zone in
further action is
2
within that PUD cannot be permitted
the County where "open space" is a
necessary; or
either.
listed use. No permit needed to
ii. Deny the application and
conserve land in its present use. Code
continue deciding other
• The definition of "open space" does
drafters must have intended to allow
criteria.
not provide any express authority for
"open space" associated PUDs
flood plain zoned lands to be used as
specifically listed use in the Flood
open space in a PUD.
Plain Zone.
(File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) Page 1 of 10
Decision Matrix: (File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) - Lower Bridge
Does the FP zoned PUD is not a use permitted in the FP
land count towards zone. Therefore, FP -zoned land
PUD housing density included in the subject property
and density cannot be included in the density
bonuses? calculation.
(DCC 18.128.210(D)(3), "In an RR 10 Zone... planned and
18.60.060(C), cluster developments shall be allowed
3 18.96.110) an equivalent density of one unit per
7.5 acres."
4
• Unlike RR10 code, no PUD density
bonus listed in FP lot size
requirements.
• The listing of open space as a use
allowed in that zone means open
space associated with a planned
development in an adjacent zone.
• The County has historically allowed
Flood Plain zoned acreage to be
included as open space in cluster and
planned developments.
• Code expressly allows for gross area
calculations to determine density and
lot sizes. Including FP acreage is
supported by the County Code and
historical practice.
Does sufficient
• Cost estimates do not address
The Applicant submitted a cost
financing exist to
additional environmental concerns.
estimate prepared by a registered
assure the proposed
civil engineer to complete the
development will be
• How can the Applicant can be flush
subdivision, including both soft and
substantially
with cash in a money market account,
hard costs and a 10% contingency.
completed within
but require approval of the east side
four years of
development to fund the west side?
The Applicant also submitted a letter
approval?
from the CFO of Realvest as the entity
"Applicant" is Lower Bridge Road, LLC.
responsible for financing the project
(DCC 18.128.210(B)(6))
However, "Applicant" is not the signer
together with a money market
of the application or holder of the
statement, demonstrating funds
money market account offered as
sufficient to and committed to
assurance of financial stability. Who
building the project.
owns the property, who controls the
property, and what financial means
The Applicant submitted evidence
are available to the Applicant itself?
demonstrating the Realvest Chapter
11 Plan for reorganization was
• A number of lawsuits directed at
accepted and was fully completed in
members of the development team.
2010.
[A] suit, if successful, will wipe out the
money market fund offered for
financial security of the project.
• Planned Developments get a housing
density bonus from one unit per 10 acres
to one unit per 7.5 acres in the RR10 zone,
increasing the number of allowed units in
the development.
• The PUD proposal relies on RR10 and FP
zoned land together for the density
calculation to allow for 19 residential lots.
• Planned Development code requires a
demonstration of existing financing to
complete the project, as proposed.
• The applicant had not provided detailed
cost or financial information until the
current hearing before the Board.
Does the FP zoned land count
towards PUD housing density and
density bonuses?
a. If yes, continue reviewing the
application.
b. If no,
i. Deny the application. No
further action is
necessary; or
ii. Deny the application and
continue deciding other
criteria.
Has the applicant demonstrated
compliance with DCC
18.128.210(B)(6)?
a. If yes, continue reviewing the
application.
b. If no, either:
i. Deny the application. No
further action is
necessary; or
ii. Deny the application and
continue deciding other
criteria.
(File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) Page 2 of 10
Has the Flood Plain
zoned land received
an exception to the
resource use
acreage standards
(Goal 3)?
(DCC 18.96.110(C))
5
Has the
environmental
history at the mine
been adequately
addressed and
resolved?
(DCC 18.128.015)
6
Decision Matrix: (File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) - Lower Bridge
• DCC 18.96.110(C) requires a • The subject property was rezoned
minimum lot size of 80 acres for from Surface Mining to RR-10 in 2008
"areas which have not received an through the non -resource designation
exception to the Statewide process, which is an alternative
Planning Goals" for resource uses. method to the goal exception
• The flood plain zoned portion of
this property has not received an
exception to resource goals (Goals
3 and 4).
• The NFA letter foundation is
erroneous so subject to
withdrawal.
• The NFA Letter does not cover the
entire subject property.
• The NFA letter issued by DEQ is not
based on DEQ's testing, or even
independent scientific study.
Because the NFA letter is based on
incomplete information, the NFA
letter issued is not reliable.
• Proper waste disposal, potential
waste seepage, potential dump
usage of the property are of
concern are not adequately
resolved.
process.
• That 2008 Zone Change Decision
concluded there are no Goal 3, 4 or 5
resources on the subject property
and is the equivalent of a goal
exception.
• DEQ and OHA are State agencies that
possess technical and scientific
expertise in matters relating to the
environment.
• The DEQ process was a public process
and that opponents of this
application had the right to
participate.
• Environmental clean-up activities at
the Subject Property have been
completed and the Subject Property
"environmental conditions are
currently protective of public health"
• Reviewed area includes 29 acres west
of Lower Bridge Road
• Minimum lot sizes in resourced zoned Has the Flood Plain zoned land
lands are 80 acres, with certain exceptions, received an exception to the
as part of the State Goal 3 program to resource use acreage standards
preserve and protect farm uses. (Goal 3)?
• The Flood Plain zone, accordingly, has a a. If yes, continue reviewing the
minimum lot size of 80 acres, where land application.
has not "received an exception to the b. If no, either:
Statewide Planning Goals for resource i. Deny the application. No
uses". Flood Plain zoned lands that have further action is
received an exception have a minimum lot necessary; or
size of 10 acres. ii. Deny the application and
continue deciding other
• On the subject property, the Flood Plain criteria.
zone holds a "Surface Mining'
comprehensive plan designation.
• This 113-acre area was previously used Has the environmental history at
primarily for aggregate mining and hot -mix the mine been adequately
asphalt plant operations. addressed and resolved?
• Diatomite mining and processing was
conducted primarily on an adjacent larger
property on the west side of Lower Bridge
Road.
• DEQ and OHA have declared the site safe
for residential use.
• Condition to consider: Shared public water
supply system that will be subject to
periodic water quality testing to protect
drinking water. (DCC 17.36.300)
a. If yes, continue reviewing the
application.
b. If no, either:
i. Condition approval to
achieve compliance;
ii. Deny the application. No
further action is
necessary; or
iii. Deny the application and
continue deciding other
criteria.
(File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) Page 3 of 10
7
Decision Matrix: (File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) - Lower Bridge
Will scenic resources
A 19-lot riverfront housing
Hearings Officer found that with
be adequately
development might not be granted
conditions requiring setbacks from
protected?
approval by the Oregon State
the Deschutes River and rimrock, a
(DCC
Parks and Recreation Commission.
prohibition upon Applicant seeking
18.128.2010(B)(8))
Such development is not in line
exceptions rimrock standards or LM
with the existing agricultural and
review standards, and a prohibition
low -density development, and
upon Applicant seeking Scenic
would require significant
Waterway exceptions this issue has
vegetation screening and rim rock
been adequately addressed.
setbacks to ensure that the
structures do not intrude on the
The County implements scenic
view from the river.
protections through the Landscape
Management Combining Zone, which
• The proposed density and
applies to the subject property and
clustering along the river would
which requires individualized review
deplete the river corridor's
of each proposed dwelling through a
"relatively pristine condition", and
land use process prior to building
OPRD's preliminary assessment is
permit approval.
this would undermine the values
the Scenic Waterway designation
Scenic Waterway review, through
was established to protect.
Oregon State Parks, is also required
for each proposed dwelling prior to
the issuance of a building permit and
is also a condition of land use
approval.
• The issues State Parks raises with
regard to the Scenic Waterway
designation are not related to review
criteria for this subdivision request.
• The proposed development at Lower
Bridge Road is located in the Middle
Deschutes Scenic Waterway "Scenic River
Area" category.
Will scenic resources be adequately
protected?
a.
• Planned Development code requires that, b
"Adequate provision is made for the
preservation of natural resources such as
bodies of water, natural vegetation and
special terrain features."
• Condition to consider: Additional structural
setback from canyon rim, regardless of
"rimrock".
If yes, continue reviewing the
application.
If no, either:
i. Condition approval to
achieve compliance;
ii. Deny the application. No
further action is
necessary; or
iii. Deny the application and
continue deciding other
criteria.
(File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) Page 4 of 10
8
Decision Matrix: (File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) - Lower Bridge
Will riparian
The intent of PUD's is to enhance
Hearings Officer found that with
Planned Development code requires that,
Will riparian habitats associated
habitats associated
wildlife protection by "clustering"
conditions requiring setbacks from
"Adequate provision is made for the
with the Deschutes River and
with the Deschutes
development and allowing larger
the Deschutes River and rimrock, a
preservation of natural resources such as
nearby rimrock be adequately
River and nearby
open spaces.
prohibition upon Applicant seeking
bodies of water, natural vegetation and
protected??
rimrock be
exceptions to the County rimrock
special terrain features."
adequately
This intent is circumvented
standards or LM review standards, a
a. If yes, continue reviewing the
protected?
whenever development abuts a
prohibition upon Applicant seeking
Condition to consider: Prohibition on new
application.
(DCC
riparian area --as the most
Scenic Waterway exceptions, and
trails in the RAMP area.
b. If no, either:
18.128.2010(B)(8))
desirable home sites are always
modification of the CC&R's to reflect
i. Condition approval to
nearest the waterway. This PUD
ODFW's request to "ban the feeding
achieve compliance;
places houses and human activity
of wildlife and require "wildlife
ii. Deny the application. No
as close as possible to wildlife
friendly fencing" (DCC 18.88.070), and
further action is
habitat and maximizes all of the
the RAMP, the Applicant has
necessary; or
negative impacts.
adequately addressed this issue.
iii. Deny the application and
continue deciding other
• ODFW recommends that the
• The RAMP was prepared by a
criteria.
County ensure there is a sufficient
professional biologist and contains
compensatory mitigation plan to
prohibitions on any development in
address [riparian, deer, and eagle
the Flood Plain and riparian areas,
impacts] prior to approving the
with stringent and cohesive
application.
management strategies designed to
protect and monitor these areas.
• ODFW urges the county to
implement stringent setback
The proposed CC&Rs contain funding,
standards for any future
enforcement and review provisions to
development of the property.
ensure the plans are carried out and
progress is monitored by biologist
• The riparian area was surveyed
review.
during dormancy, it is not an
adequate baseline to measure the
This proposed development plan,
existing condition or set standards
even with the additional density
to preserve the integrity and
provides more protection for the
biodiversity of the riparian
scenic and riparian resources than a
ecosystem.
standard subdivision.
(File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) Page 5 of 10
9
Decision Matrix: (File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) - Lower Bridge
Has the Applicant The Applicant clarified and the record The Hearings Officer found that Applicant's
adequately shows the Applicant did apply for failure to seek SMIA Site Plan approval at
addressed SMIA SMIA review, paid the requisite fee, this stage (PUD/tentative plan approval
Criteria? submitted the subdivision and stage) results in this criterion not being
builder's envelope plans. met.
• The Applicant submitted further Applicant provided evidence to confirm
evidence on Appeal establishing that compliance with SMIA requirements.
all proposed buildable areas were
over 250' from the two nearby
Surface Mine zones.
• The Applicant also agreed to record,
as a condition of final plat approval,
the requisite Waiver of Remonstrance
against all lots in the proposed
subdivision.
Has the Applicant adequately
addressed SMIA Criteria?
a. If yes, continue reviewing the
application.
b. If no, either:
i. Deny the application. No
further action is
necessary; or
ii. Deny the application and
continue deciding other
criteria.
(File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) Page 6 of 10
10
Decision Matrix: (File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) - Lower Bridge
Is demonstration of
The applicant cannot defer until
• The rimrock setback standards are
compliance with
the building permit stage a
part of the Design review process of
rimrock standards
showing that the rimrock set backs
DCC 18.84.080 which itself is part of
required in this
will be met. When a development
the LM Site Plan review process.
decision?
proposal omits or otherwise defers
• The Hearings Officer found the most
(DCC 18.84.080)
until a future determination
appropriate time to consider the
whether an approval standard will
rimrock setback standards will be
be met, the application must be
upon the LM Site Plan review for new
denied, made more certain, or
structures/altered structures.
postponed.
Applicant's proposed PUD subdivision
application in this case is to be judged
• Without County determination of
on the current condition of the
where the rimrock is located, the
Subject Property and under the
setback dependent upon it cannot
current laws/codes. The Hearings
be fixed, and building envelopes
Officer does not believe, in this case
cannot be determined. And
proceeding, that the Hearings Officer,
without building envelopes,
or even the Board has authority to
feasibility of development on each
require previously "buried rimrock" be
site cannot be assured.
"unburied".
• Rimrock setback determination are Is demonstration of compliance
required as part of Landscape with rimrock standards required in
Management site plan review, prior to this decision?
building permits. This is a public process.
The rimrock review is not impermissibly a. If no, continue reviewing the
deferred. application.
b. If yes, either:
i. Deny the application. No
further action is
necessary; or
ii. Deny the application and
continue deciding other
criteria.
(File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) Page 7 of 10
Decision Matrix: (File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) - Lower Bridge
Are the proposed
Small lots, often with significant
The Hearings Officer found that with
DCC 17.36.170 requires: "The size, width
Are the proposed lots developable,
lots developable,
acreage down the canyon slope,
conditions set forth in the findings for
and orientation of lots or parcels shall be
given applicable constraints on the
given applicable
are not feasible to develop, given
DCC 18.96.110(C), DCC 18.128.015(A),
appropriate for the location of the land
building lots?
constraints on the
constraints such as rimrock
DCC 18.128.210(A) this approval
division and for the type of development
building lots?
setbacks and well -to -septic
criterion can be met.
and use contemplated..."
a. If no, continue reviewing the
(DCC 17.36.170)
separation requirements.
• This provision is intended to prevent the
application.
• The Applicant's conceptual building
creation of new lots that would not be
b. If yes, either:
• The required setbacks and
envelopes and a typical residential
ultimately developable.
i. Condition approval to
dimensional standards are quite
building plan for a 4,000 square foot
• The decision maker must find that the lot
achieve compliance;
restrictive. Rimrock determination
home, well, septic and reserve to
layout would allow each lot to be
ii. Deny the application. No
11
will be particularly complex.
demonstrate there is ample area on
developed with a house, well, and septic
further action is
Determination of the location of
each lot to site a dwelling and all
system, considering all applicable
necessary; or
the true rim is critical to protection
necessary residential components
constraints.
iii. Deny the application and
of the habitat, the river, and the
and meet the required setbacks.
continue deciding other
soil stability.
criteria.
• A local builder reviewed the evidence
• The Board should require a
and attested to the fact that all lots
rimrock survey before a site plan is
contain ample area to site a residence
approved, so that true site
and all necessary infrastructure.
dimensions may be determined for
feasibility analysis.
Do old roads
• Applicant does not show 3 public
Kidder Rd, Willamette Valley Wagon Rd,
Do old roads undermine acreage
undermine acreage
ROW's that traverse taxlot 502
and Lower Bridge (Lambert) Rd exist over
calculations?
calculations?
where the project proposes Open
the subject property and that the
(DCC 18.04.030)
Space in Tract E and Tract F of the
applicant's current tentative plan does not
a. If no, continue reviewing the
Cluster Development.
appear to show these right of ways.
application.
b. If yes, either:
• Do these right of ways count
These road areas are allowed to be
ii. Deny the application. No
toward the sixty-five percent open
counted as part of the area of the
further action is
12
space acreage requirements? If
property, per the DCC 18.04.030 definition
necessary; or
not, the application falls below
of lot area, in relevant part, "...the Planning
iii. Deny the application and
required acreage standards.
Director or Hearings Body shall include in
continue deciding other
gross lot areas all streets, roads, and
criteria.
easement of access to other property that
would accrue to that lot if the road, street
or easement were vacated..."
(File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) Page 8 of 10
Decision Matrix: (File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) - Lower Bridge
Is the Applicant
The actual ownership of the
Paul Christensen, as the President of
The context of the word "the" as used in
Is the Applicant authorized to make
authorized to make
subject property is split, and that
Realvest LLC, signed the application.
Section 22.08.010 is within a definition of
this application?
this application?
the application made to the County
Realvest Corporation Is the sole
property ownership for purposes of
lacks full authority of the land's
member of LBR Manager, LLC, which
submitting a land use application in an
a. If yes, continue reviewing
ownership to be processed and
is the manager for Lower Bridge
environment where it is not unusual for
the application.
approved.
Road, LLC, which is the property
there to be multiple property owners - e.g.,
b. If no, either:
13
• All mineral rights were split off the
owner. Under DCC 22.08.010,
fee owners, contract purchasers, and
i. Deny the application. No
ownership of the subject property,
applications must "be submitted by
easement holders. In this context, staff
further action is
and are presently held by an
the property owner or a person who
believes it is not reasonable to read the
necessary; or
Oregon Corporation that has been
has written authorization from the
word "the" as meaning a particular owner.
ii. Deny the application and
dissolved, Central Oregon
property owner".
Rather, staff believes the most reasonable
continue deciding other
Diatamaceous [sic] Earth, Inc.
interpretation is that the word "the" is a
criteria.
synonym for "a" or "an."
(File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) Page 9 of 10
14
Decision Matrix: (File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) - Lower Bridge
Does "transferring'
Proposal allows undevelopable
Open space is a listed use in the Flood
Staff is unaware of any case law regarding
Does "transferring' density from FP
density from FP
land in the Flood Plain to be
Plan Zone and the listing of open
a quasi-judicial application acting as a de
zoned land to residential zone
zoned land to
credited towards new additional
space as a use allowed in that zone
facto plan amendment.
lands act as a plan amendment?
residential zone
residential density in upland areas.
means open space associated with a
lands act as a plan
These additional residential units
planned development in an adjacent
a. If no, continue reviewing
amendment?
were not accounted for when
zone.
the application.
analyses of housing, infrastructure,
b. If yes, either:
and protection of Goal 5 resources
Such code language was in place at
i. Deny the application. No
were conducted, this change in
the time of adoption and
further action is
code interpretation undermines
acknowledgment of the Goal 5
necessary; or
the assumptions and conclusions
program and remains in place today.
ii. Deny the application and
of those analyses.
continue deciding other
• The use of Flood Plain zoned acreage
criteria.
• Proposal would acts like a post-
as open space in the present request,
acknowledgment plan amendment
with a cohesive stewardship plan
("PAPA"), and an economic, social,
prohibiting any development in the
energy and environmental ("ESEE")
Flood Plain, is consistent with the
analysis should be required.
Goal 5 program and does not
authorize a new conflicting use.
• This interpretation allows for the
upzoning of developable property
adjacent to flood plain zoned lands
by shifting density from the
"undevelopable" portion (flood
plain) to the "developable" portion.
(File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) Page 10 of 10