2020-57-Minutes for Meeting January 08,2020 Recorded 2/18/2020• BOARD OF COMMISSIONERS 1300 NW Wall Street, Bend, Oregon (541 ) 38 8-65 70 Recorded in Deschutes County CJ2020-57 Nancy Blankenship, County Clerk Commissioners' Journal 02/18/2020 8:59:52 AM c�<,t* Q'w sC2020-57 �q x - x• TR FOR RECORDING STAMP ONLY 10:00 AM WEDNESDAY, January 8, 2020 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 Adair called the meeting to order at 10:00 am PLEDGE OF ALLEGIANCE: CITIZEN INPUT: Commissioner Adair asked for prayers for Ashley Beatty's son for medical treatment. Rondo Boozell: Inquired if the Commissioners have ever considered the possibility of the Commissioners moving to a non -partisan party. BOCC MEETING JANUARY 8, 2020 PAGE 1 OF 7 CONSENT AGENDA: Before the Board was Consideration of Approval of the Consent Agenda. Commissioner Henderson requested to pull items 16, 17, and 18 for further review. Commissioner Adair requested to pull item 4 HENDERSON: Move approval of Consent Agenda minus Items 4, 16, 17, and 18 DEBONE: Second VOTE: HENDERSON: Yes DEBONE: Yes ADAIR: Chair votes yes. Motion Carried Consent Agenda Items: 1. Consideration of Board Signature of Order No. 2020-001, Designating an Official Newspaper for Publication of County Public Notices 2. Consideration of Chair Signature of Document No. 2020-050, justice D�irinc-tmnrit In;f-i -Ati%in i=rnni- A[iroomont FVU111VCJ1111G1 IL 11 I1UUL1V1,;; %-JI U1 IL n61 LLI I1L1 IL 3. Consideration of Chair Signature of Document No. 2020-051, Victims of Crime Act and Criminal Fine Account Grant Award 4. Consideration of Board Signature of Resolution No. 2020-003, Budget Adjustment for Statewide Transportation Improvement Funds 5. Consideration of Board Signature of Letters Appointing Paul Bertanga, Dan Youmans, and Walter McCoin to the Statewide Transportation Improvement Fund Advisory Committee 6. Consideration of Board Signature on Letter Appointing Julie Sherrer to the Sun Mountain Ranches Special Road District 7. Consideration of Board Signature on Letter Thanking Jo Kilmer for Service on the Sun Mountain Ranches Special Road District 8. Consideration of Board Signature on Letter Reappointing Bill Inman to the Deschutes River Recreation Homesites Special Road District Board #1 9. Consideration of Board Signature on Letter Reappointing Toni Williams to the Vandevert Acres Special Road District Board 10.Consideration of Board Signature on Letters Reappointing Linda LeMaster, Chris McLeod, and Linda Ray to the River Forest Acres Special Road District 11.Consideration of Board Signature on Letter Appointing Bill Shurte to the BOCC MEETING JANUARY 8, 2020 PAGE 2 OF 7 Pinewood Country Estates Special Road District Board 12.Consideration of Board Signature on Letter Thanking Anita Landice for Service on the Pinewood County Estates Special Road District Board 13.Consideration of Board Signature on Letter Appointing Bo Glines to the Spring River Special Road District Board 14.Consideration of Board Signature on Letter Reappointing Carl Jansen to the Spring River Special Road District Board 15.Consideration of Board Signature on Letter Thanking John Moore for Service on the Spring River Special Road District Board 16.Approval of Minutes of the December 9, 2019 BOCC Meeting 17.Approval of Minutes of the December 11, 2019 BOCC Meeting 18.Approval of Minutes of the December 18, 2019 BOCC Meeting ACTION ITEMS: Consent Agenda Item 4 as pulled for discussion: Consideration of Board Signature wF 1Un 7A07n_nn2 IZIIf�l�rnt Arlhictrr�ont fnr Ctntomfirin Trnncnnrtntinn VI I%C.JVIULIV11 IVV• 4 &-%# � vM b�. a. / "j M J%...\...�. ■v■ v�.w u�. ��.�wv v�+ Improvement Funds Communications Director Whitney Hale presented this item for discussion. Commissioner Adair inquired on the transportation schedule charges. Ms. Hale will confer with the Oregon Department of Transportation for clarification. HENDERSON: Move approval of Resolution No. 2020-003 DEBONE: Second VOTE: HENDERSON: Yes DEBONE: Yes ADAIR: Chair votes yes. Motion Carried BOCC MEETING JANUARY 8, 2020 PAGE 3 OF 7 19.Consideration of Chair Signature of Document No. 2020-029, Notice of Intent to Award Qualified Pool of Fuel Reduction Contractors County Forester Ed Keith presented the document for consideration and reported on the work of the pool of contractors that is refreshed annually to expedite fuels reduction projects throughout the year. Mr. Keith reported on a grant award for approximately $500,000 that will be used towards this work. HENDERSON: Move approval of Document No. 2020-029 DEBONE: Second VOTE: HENDERSON: Yes DEBONE: Yes ADAIR: Chair votes yes. Motion Carried 20.Consideration of Board Signature on Document No. 2020-055, Update to the Greater Sisters Community Wildfire Protection Plan County Forester Ed Keith presented the update to the Greater Sisters Community Wildfire Protection Plan (CWPP). Mr. Keith reported on the partners involved in updating the CWPP including projects and priorities for the upcoming year. A risk assessment tool from the Oregon Department of Forestry entitled Oregon Wildfire Risk Explorer was used during this update and is a part of the plan. Evacuation map routes were also included in this update. HENDERSON: Move approval of Document No. 2020-055 DEBONE: Second VOTE: HENDERSON: Yes DEBONE: Yes ADAIR: Chair votes yes. Motion Carried BOCC MEETING JANUARY B, 2020 PAGE 4 OF 7 Other Item: County Administrator Anderson reported on a $40,000 grant award received yesterday. Mr. Keith explained the scope of work for the fuels reduction grant program and the applications received. Mr. Keith thanked the Commissioners on behalf of the community for the opportunity for fuels risk reduction. Commissioner DeBone offered his attendance at a community meeting to thank them for being engaged. Commissioners considered increasing the pool of money for future fuels reduction projects as the $40,000 was designated from the lottery fund. 21.Consideration of Chair Signature of Document No. 2020-052, a Notice of Intent to Award Contract for the SW Canal Blvd/SW Helmholtz Way Intersection Improvement Project to High Desert Aggregate and Paving, Inc. County Engineer Cody Smith presented the document for consideration and explained the scope of work for the project. This work was identified in the (IIr4 Dni-tA Dorlmr,inrd Wirrh%niw c0fot%1 imnrrrniomont nrniort Wiah nocort tJIU UCl lu I\Cu111V1lu I Ilbl lvvuy .1U1%-Ly II I1tJ1 %JV%-111%.l1L trl wjl� L. 11.bit 1./l. i i. Aggregate and Paving is the qualified bidder. HENDERSON: Move approval of Document No. 2020-052 DEBONE: Second VOTE: HENDERSON: Yes DEBONE: Yes ADAIR: Chair votes yes. Motion Carried 22.Consideration of First Reading: Ordinance No. 2020-001, Religious Land Use Institutionalized Persons Act Planning Manager Peter Gutowsky and Assistant Legal Counsel Adam Smith presented the Ordinance for consideration of first reading. The ordinance is BOCC MEETING JANUARY 8, 2020 PAGE 5 OF 7 being requested for a repeat first reading due to changes to the findings. The second reading is scheduled for January 22, 2020. Mr. Smith reported on the language clarification to the Ordinance as a result of the direction by the Board. HENDERSON: Move to approve first reading by title only of Ordinance No. 2020-001 DEBONE: Second Discussion: Commissioner Henderson expressed his reason for support of this Ordinance. Chair Adair read Ordinance No. 2020-001 into the record by first reading by title only. VOTE: HENDERSON: Yes DEBONE: Yes ADAIR: Chair votes yes. Motion Carried OTHER ITEMS: Commissioner Henderson presented a draft letter addressed to the Oregon Department of Environmental Quality for consideration regarding the listing of water quality impaired water bodies throughout the state. County Counsel Dave Doyle created the draft letter as direction from the BOCC meeting of January 7. Commissioner Henderson recommended additional language changes. County Administrator Anderson reported on a request from the League of Women Voters to support a language for local government's proclamation and could be presented during a BOCC meeting in February. Commissioner DeBone recommended reviewing the document. County Administrator Anderson reported on a letter regarding support for two circuit court judges that should be presented in time for the Commissioners to present it at the AOC day on January 13, 2020. Commissioner Henderson spoke on the Fall River Special Road District BOCC MEETING JANUARY 8, 2020 PAGE 6 OF 7 Commissioner Henderson spoke on the Fall River Special Road District invitation to attend the next board meeting on January 14. Commissioner DeBone was interviewed on KNCP radio this morning. Commissioner Henderson was interviewed on KBND this morning. Beirg no `farther items to corne before the Board, tr;,e meeting was adiout ned at 1 i A 0 a.rn. DA ED this Dad020 for the Dc }ch; ute, rt;l E, and o' t01T:r? lissiorers. PATTI ADAIR, CHAIR. BOCC MEETING JANUARY 8, 2020 PAGE 7 OF 7 E S C0G 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 January 15, 2020 DATE: January 9, 2020 FROM: Isabella Liu, Community Development, TITLE OF AGENDA ITEM: Nehmzow Marijuana Production Deliberation Discussions BACKGROUND AND POLICY IMPLICATIONS: The Board will conduct deliberations on January 22, 2020 for the proposed marijuana production facility located at 60148 Stirling Drive, Bend. Staff will conduct a work session prior to deliberations on January 15, 2020 to orient the Board to anticipated topics. ATTENDANCE: Izze Liu, Associate Planner pq MEMORANDUM DATE: January 9, 2020 TO: Deschutes County Board of Commissioners FROM: Izze Liu, Associate Planner RE: Deliberations following a public hearing for a reconsideration of a marijuana production application. File No. 247-19-000844-RC (related to file nos. 247-18-000915- AD, 247-19-000431-A). BACKGROUND INFORMATION APPLICANT/OWNER: APPLICANT'S ATTORNEY: APPELLANT: APPELLANT'S ATTORNEY: Tommy Nehmzow Michael Hughes, Hughes Law Keith & Kristin Adams Liz Dickson, Dickson Hatfield LLP LOCATION: The subject property has an assigned address of 60148 Stirling Drive, Bend; and is further identified on County Assessor Tax Map 18-13-30 as tax lot 500. HEARING DATE: December 11, 2019 RECORD PERIOD: The record will close at 5:00 pm on January 10, 2020. REVIEW PERIOD: The County must issue a final local decision by February 6, 2020. I. PURPOSE The Deschutes Board of County Commissioners ("Board") is tasked with determining if the subject proposal meets the requirements in the applicable sections of the Deschutes County Code. The Board held a public hearing on December 11, 2019 to reconsider the application for a marijuana production facility. This memo and the decision matrix are designed to assist the Board in their deliberations. The decision matrix will be provided to the Board in person during the scheduled meeting. It focuses on the contested aspects of the application that require Board determinations or interpretations. II. RECORD The record, in its entirety, was presented to the Board as attachments to the May 21 St, June 26th, july 24th, August 28th, and December 41h staff memorandums. Only those record items that have not been presented to the Board previously are attached to this memo. The attached record items include materials submitted at the public hearing and during the open record period. The open record period closes on January 10th but due to the time constraints of this application, staff has prepared the Board meeting packet without the applicant's final argument. If the applicant submits a final argument, staff will present this document to the Board in person during the scheduled meeting and summarize the comments in the decision matrix. A binder containing copies of all materials in the record has also been prepared for the Board. It is located in the Board office so that it is accessible at any time. III. OBJECTION SUMMARY The appellant and other opponents at the hearing stated several reasons for their opposition which were described in the notice of Appeal, in oral and written testimony, and In the open record period submissions. A decision matrix will be provided during the scheduled meeting to assist the Board to determine if the Administrative Determination should be affirmed, affirmed with modified findings and/or conditions, or denied. Below, staff has identified six key issues that the appellant or an opponent has raised regarding the proposal. Two other issues were raised that may be unrelated to the approval criteria. Finally, several other topics were raised that did not relate to or address approval criteria. IV. DISCUSSIONS OF OBJECTIONS The following is a summary of the points of objections and does not fully describe or explore all aspects of the proposal or of objections. The complete arguments and rebuttals were presented at the hearing and in the attached record materials submitted during the open record period. The key topics raised are summarized below: 1. Oregon Land Conservation and Development Commission Administrative Rules are not addressed. 2. Findings related to ORS 215.243 are incomplete. 3. Findings related to Statewide Planning Goals are incomplete. 4. Proximity to a possible youth activity center. 247-19-000844-RC (related to file nos. 247-18-000915-AD, 247-19-000431-A) Additionally, the appellant and other opponents at the hearings on July 24t" and December 11t" stated several reasons for their opposition which were described in oral and written testimony, and in documents submitted during the open record period. Below, staff identifies six key issues that are related to the approval criteria, two issues that may be unrelated, and nine issues raised that did not address the approval criteria. Topics that addressed approval criteria: 1. Proximity to a possible youth activity center. 2. Screening and fencing. 3. Odor control. 4. Noise. 5. Secure waste disposal. 6. Identification of applicable criteria is required by statute. Topics and questions that may or may not address approval criteria: 1. Analysis of the applicable land use statutes, statewide land use planning goals and administrative rules of the Land Conservation Development commission are insufficient. 2. Applicability of the code amendments adopted by Ordinance No. 2018-012 and later repealed by Ordinance No. 2019-014. Topics and questions that did not address approval criteria: 1. Moral objections, personal beliefs, opinions regarding marijuana use (both positive and negative). 2. Amount of water to be used. 3. Traffic and use of Stirling Drive. 4. Fire access easement on subject property leadingto the Sundance Meadows Ranch property. 5. Public Health, Safety, and Welfare. 6. Compatibility with neighborhood uses. 7. Federally illegal. 8. Impacts to wildlife. 9. Proximity to a residential subdivision. V. CONCLUSION & NEXT STEPS The Board will conduct deliberations on January 22, 2020. The County filed the Notice of Withdrawal to LUBA on November 8t", therefore, the decision must be mailed out by February 6, 2020. 247-19-000844-RC (related to file nos. 247-18-000915-AD, 247-19-000431-A) VI. RECORD ATTACHMENTS The following attachments are materials that have been entered into the record after the December 4, 2019 staff memorandum. Only those record items that have not been presented to the Board previously are attached to this memo. They are presented in reverse chronological order. Attachments: 1. 2020-01-03 - Appellant Rebuttal 2. 2019-12-20 - Staff Open Record 3. 2019-12-20 - Applicant Open Record 4. 2019-12-20 - Appellant Open Record 5. 2019-12-11 - Kook Open Record 6. 2019-12-11 - Exhibit 4 - Dee Schultz 7. 2019-12-11 - Exhibit 3 - Elizabeth Dickson 8. 2019-12-11 - Exhibit 2 - LUBA No. 2019-036 Waveseer 9. 2019-12-11 - Exhibit 1 - Sheriff Nelson 10. 2019-12-11 - Hearing Exhibit List 11. 2019-12-11 - Notice of Public Hearing 247-19-000844-RC (related to file nos. 247-18-000915-AD, 247-19-000431-A) v1 E S C0GZ 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 January 15, 2020 DATE: January 9, 2020 FROM: William Groves, Community Development, 541-388-6518 TITLE OF AGENDA ITEM: Lower Bridge PUD - Draft Findings and Decision Review RECOMMENDATION & ACTION REQUESTED: Review the attached draft findings and decision and provide any feedback or edits prior to the scheduled January 22, 2020 decision adoption. BACKGROUND AND POLICY IMPLICATIONS: 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 Hearings Officer denied the application and the decision was timely appealed. The Board conducted a public hearing on October 30, 2019. Following the close of the record, the Board deliberated on December 18, 2020 and voted unanimously that the application could be approved. Staff has worked with the Applicant, as the prevailing parry, to develop the attached draft Board decision, pursuant to DCC 22.28.060. FISCAL IMPLICATIONS: none ATTENDANCE: Will Groves, Legal STAFF MEMORANDUM Date: January 9, 2020 To: Board of County Commissioners From: Will Groves, Senior Planner Re: Draft Decision - Appeal of Hearings Officer Decision (File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A) 1. Purpose This meeting is to afford the Deschutes Board of County Commissioners ("Board") with an opportunity to provide edits and feedback to staff regarding a draft decision. Any edits can be made prior to the Board's adoption of the final decision, scheduled for Wednesday, January 22, 2020. 11. Background ThA Annlirant rani iactari rnnriitinnal imp. tentative subdivision plan; and SMIA site plan approval to rr..-M.._ - establish a 19-lot residential planned unit development ("PUD") on the Subject Property. The Hearings Officer denied the application and the decision was timely appealed. The Board conducted a public hearing on October 30, 2019. Following the close of the record, the Board deliberated on December 18, 2020 and voted unanimously that the application could be approved. Staff has worked with the Applicant, as the prevailing party, to develop the attached draft Board decision, pursuant to DCC 22.28.060. III. Clarification Staff and the Applicant have a different understanding of the Board's deliberative statements regarding the protection of natural resources (DCC 18.128.210(13)(8)). 8. Adequate provision is made for the preservation of natural resources such as bodies of water, natural vegetation and special terrain features. The Board was asked if Scenic Resources would be adequately protected under the proposal as conditioned. Staff noted that opponents recommended additional setbacks from the canyon rim, as a potential new condition of approval to minimize visual impacts. The Board stated that no additional conditions of approval would be required. Staff understood this to indicate that no additional canyon rim setbacks would be required. 117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005 (541) 388-6575 Cep cdd@deschutes.org @ www.deschutes.org/cd The Applicant understood the Board's statement to indicate that no conditions of approval relating to canyon rim setbacks would be required, as scenic resources would be adequately be protected by the Landscape Management combining zone requirements. Accordingly, the Applicant believes that the following Hearings Officer conditions of approval should be stricken: • A topographic survey shall be required prior to construction or earthmoving in the vicinity of the canyon rim. • Structures and/or earthmoving are prohibited on or below slopes exceeding 10 percent within the canyon. Habitat improvement projects approved or sponsored by ODFW and not subject to this requirement. Staff notes that while these conditions would likely reduce visual impacts, they were imposed by the Hearings Officer to also address potential slope stability and erosion impacts (See Hearings Officer decision pages 114-115, DCC 18.128.210(B)(8)). IV. Conclusion & Next Steps Staff respectfully requests the Board to provide desired edits in the Wednesday, January 15 meeting. The final decision will be placed on the meeting agenda for Wednesday, January 22 for Board signature. The 150-day period for issuance of a final local decision ends January 28, 2019. Attachments: 2020-01-09 - Drift Rr1C-f Finding,, and liaricinn 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 2 of 2 REVIEWED LEGAL COUNSEL For Recording Stamp Only DECISION OF THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS FILE NUMBERS: APPLICANT/OWNER: APPLICANT'S ATTORNEY: APPELLANTS: APPELLANT'S ATTORNEY: STAFF REVIEWER: 247-19-000405-CU/406-TP/407-SMA/741-A and 757-A Lower Bridge Road, LLC Tia M. Lewis Schwabe, Williamson & Wyatt Calfa Holdings, LLC Timothy V. Ramis Jordan Ramis PC Will Groves, Senior Planner LOCATION: The Subject Property is identified as Tax Lot 500 on Deschutes County Assessor's Map 14-12-15, and Tax Lots 1502, 1505, and 1600 on Assessor's Map 14-12 (index). Each of these tax lots has an assigned address in Terrebonne as follows: HEARINGS OFFICER'S DECISION ISSUED: APPEALS FILED: HEARING DATE: RECORD CLOSED: Tax Lot 500: 70465 NW 96th Court; Tax Lot 1502: 70300 NW Lower Bridge Way; Tax Lot 1505: 10000 NW Lower Bridge Way; and Tax Lot 1600: 70350 NW Lower Bridge Way September 24, 2019 October 1 and 7, 2019 October 30, 2019 November 20th, 2019 Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 1 of 24 1. SUMMARY OF DECISION: In this decision, the Board of County Commissioners ("Board") considered the appeals of both appellants (applicant and opponent's) of the September 24, 2019, hearings officer's findings and decision (file nos. 247-19-000405-CU/406-TP/407-SMA; "Hearings Officer's Decision"). The Board exercised its discretion to hear the appeal de novo. The Board received three memoranda from Will Groves, Senior Planner. The following lists the memoranda by date: • October 16, 2019, Consideration on whether to hear the appeal • October 28, 2019, Pre -hearing staff presentation • December 4, 2019, Pre -deliberation staff presentation The Board conducted a public hearing on October 30, 2019, and deliberated on December 18, 2019. The Board voted 3-0 (Henderson, DeBone, and Adair in favor) to overturn the Hearings Officer's Decision of denial and approved the land use permit to establish a 19-lot residential planned development on the subject property that includes three parcels totaling 144.7 acres, zoned RR-10, FP, LM and SMIA and located between the Deschutes River and Lower Bridge Way west of Terrebonne (247-19-000405-CU/406-TP/407-SMA). The Board broadly concurs with the Hearings Officer's decision but reverses the denial and approves the application, as described in detail below. The Board finds that, as conditioned, all !;C,klp rritprin fnr nnnrnval hmwa hAon mPt and that thPYP. iC CI jhctantial P\/iriPnrP i inon which to base its findings for approval. APPLICABLE STANDARDS AND CRITERIA: Title 18 of the Deschutes County Code, the County Zoning Ordinance: Chapter 18.04, Title, Purpose and Definitions Chapter 18.16, Exclusive Farm Use Zones Chapter 18.52, Surface Mining (SM) Zone Chapter 18.56, Surface Mining Impact Area Combining Zone Chapter 18.60. Rural Residential Zone (RR-10) Chapter 18.84. Landscape Management Combining Zone (LM) Chapter 18.96. Flood Plain Zone (FP) Chapter 18.116. Supplementary Provisions Chapter 18.128, Conditional Uses Title 17 of the Deschutes County Code: Chapter 17.08, Definitions and interpretation of Language Chapter 17.12, Administration and Enforcement Chapter 17.16, Approval of Subdivision Tentative Plans and Master Development Plans Chapter 17.24, Final Plat Chapter 17.36, Design Standards Chapter 17.44, Park Development Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 2 of 24 Chapter 17.48, Design and Construction Specifications Title 22, Deschutes County Development Procedures Ordinance Deschutes County Comprehensive Plan Chapter 3, Rural Growth Management Oregon Administrative Rules (OAR) OAR 660-004 (7)(e), Application of Goal 14 (Urbanization) to Rural Residential Areas III. BASIC FINDINGS: The Board adopts and incorporates by reference the code interpretations, findings of fact, and conclusions of law set forth in the September 24, 2019, Hearings Officer's Decision in Section II Basic Findings (Lot of Record, Site Description, Review Period, Proposal, Surrounding Land Uses, Land Use History, Public Agency Comments, and Public Comments), Section III, Preliminary Findings [1 Page 15, 2 Page 24]), with the following additions and changes: PRELIMINARY FINDINGS: With the exception of Preliminary Finding #2 (Pages 24-25) the Board adopts the Hearing Officer's preliminary findings. Regarding Preliminary Finding #1, the Board adopts the Hearing Officer's preliminary finding except as supplemented by the Board herein. For Preliminary Finding #2, the Board rejects the Hearings Officer Findings and adopts its own as set forth herein. Preliminary Finding #2: Issue: Did Applicant request SMIA site plan review for the PUD/tentative plan being considered in this case or did Applicant "defer" SMIA Site Plan Review to a later time (building permit applications for each dwelling unit)? The Hearings Officer found the Applicant failed to request SMIA Site Plan Review but instead argued it should be deferred until dwellings were proposed on the subject property. On appeal, the Applicant pointed to the SMIA site plan application materials, fee and notice in the record demonstrating it had indeed applied for SMIA Site Plan Review. The Applicant also submitted additional evidence on appeal demonstrating it met all applicable approval criteria for SMIA Site Plan Review. The Board finds the Applicant's evidence persuasive, there is no contradictory evidence which would undermine the Applicant's evidence or otherwise suggest the proposal does not meet the SMIA Site Plan Review criteria. Based on the substantial evidence in the record, as described below under the SMIA Site Plan criteria, the Board finds the proposal complies with SMIA Site Plan review and meets the applicable approval criteria. K. PROCEDURAL HISTORY: The Hearings Officer's Decision was issued on September 24, 2019. Two separate appeals were timely filed by the Applicant and one opponent during the 12- day appeal period. The Board used its discretion to serve as the hearings body for the Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 3 of 24 Appellants' appeals to be heard de novo pursuant to Board Order 2019-042, dated October 16, 2019. A public hearing was held on October 30, 2019. The Applicant Appellant, Lower Bridge Road, LLC, was represented by Tia M. Lewis, Attorney at Law; and the Opponent Appellant, Calfa Holdings, was represented by Timothy V. Ramis, Attorney at Law. The Board heard testimony and established an open record period that closed on November 20, 2019. The Board conducted deliberations on December 18, 2019. Via a 3-0 vote, the Board finds the proposal, as conditioned, complies with the applicable criteria listed under Section II above and overturns the Hearings Officer's Decision denying the application. IV. FINDINGS: The Board adopts and incorporates by reference the code interpretations, findings of fact, and conclusions of law set forth in the September 24, 2019, Hearings Officer's Decision in the Findings section, except for the findings relating to the DCC Sections identified below. To the extent there are conflicts between any of the findings identified above and the findings below, the findings and conclusions below shall control. Title 22 - DESCHUTES COUNTY DEVELOPMENT PROCEDURES ORDINANCE Section 22.08.010. Application Requirements. A. Property Owner. For the purposes of DCC 22.08.010, the term "property owner" shall mean the owner of record or the contract purchaser and does not include a person or organization that holds a security interest. B. Applications for development or land use actions shall. 1. Be submitted by the property owner or a person who has written authorization from the property owner as defined herein to make the application; FINDING: The Board deliberated on this topic as framed by issue 13 in the November 2, 2019 decision matrix. Opponents argue the applicant is not authorized to make the subject application request because the ownership of the property is "split" with the applicant, Lower Bridge Road, LLC, owning the property, with the mineral rights being held by another entity, Diatomaceous Earth, Inc. The evidence in the record shows title to the subject property is held in the name of Lower Bridge Road, LLC. The evidence further shows the land use application was signed by Paul Christensen who is the President of Realvest LLC, who is the sole member of LBR Manager, LLC, which is the manager for Lower Bridge Road, LLC. Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 4 of 24 The Board finds that Lower Bridge Road, LLC is the property owner as that term is described above in DCC 22.08.010, and thus, is authorized to make the subject application. Title 18 - DESCHUTES COUNTY CODE, COUNTY ZONING 18.04, Title, Purpose, and Definitions Section 18.04.030, Definitions "Lot area" means the total horizontal area contained within the lot lines. Said area shall be computed as gross area for lots larger than 2.5 acres and net area for lots 2.5 acres and smaller. The total horizontal net area within lot lines of a lot is that square footage of a lot that is free from roads, streets, rights of way or easements of access to other property. Provided, however, that 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, and shall treat the gross area of lots that have never been previously described of record as other than fractions of a section as if the section contained 640 acres, in cases where a lot is sought to be partitioned. FINDING: The Board deliberated on this topic as framed by issue 12 in the November 2, 2019 Anricinn matriu Opponents argue that the subject property contains three historic public right-of-ways - Kidder Rd, Willamette Valley Wagon Rd, and Lower Bridge (Lambert) Rd. - that traverse the subject property in the proposed Open Space of Tracts of Tract E and Tract F, and must be subtracted from the property acreage calculations for purposes of demonstrating compliance with the PUD Open Space requirements of 65%. The Board finds that the three right-of-way roads are allowed to be counted towards the lot area of the proposed PUD, including the open space tracts, based on the definition above that states 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 ... " The Board finds the Code specifically requires inclusion of these right of ways in the acreage calculations and this requirement is consistently applied County -wide for existing and proposed rights of way. The historic roads shall be shown on the final plat as required by DCC. Chapter 18.56, Surface Mining Impact Area Combining Zone (SMIA) The Board deliberated on this topic as framed by issue 9 in the November 2, 2019 decision matrix. Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 5 of 24 Section 18.56.030, Application of Provisions. The standards set forth in DCC 18.56 shall apply in addition to those specified in DCC Title 18 for the underlying zone. If a conflict in regulations or standards occurs, the provisions of DCC 18.56 shall govern. FINDING: The Hearings Officer found "that Applicant did NOT clearly and definitively submit and support a request for a SMIA Site Plan review, rather, Applicant requested the Hearings Officer defer SMIA Plan review until the building permit stage" and found this criterion was not met. The Board finds the evidence in the record shows the applicant applied for the SMIA review, paid the requisite fee, and submitted the subdivision and builder's envelope plans and the land use notice of application includes the notice of SMIA Site Plan Review. In addition, the Board finds the applicant submitted evidence that establishes all proposed buildable areas were over 250 feet from both of the applicable surface mining sites, #322 and #461. Finally, the Board finds that the applicant's buildable envelope and dimensional exhibits, together with the testimony of a local builder, demonstrate that the subdivision lots can be sited consistent with the requirements of DCC 18.56 and 17.16.100(D) and finds the applicant can comply with Section 18.56.120, Waiver of Remonstrance, through a condition of approval to record the waiver prior to final plat approval. Cartinr� 1 Q EZti r1Qr1 [norifir 1 Ico Ctanrlarrlc The following standards shall apply in the SMIA Zone: New dwellings, new noise sensitive and dust sensitive uses or structures, and additions to dwellings or noise and dust sensitive uses or structures in existence on the effective date of Ordinance No. 90 014 which exceed 10 percent of the size of the existing dwelling or use, shall be subject to the criteria established in DCC 18.56.100. FINDING: The Hearings Officer found that the proposed PUD is a noise and dust sensitive use and must comply with DCC 18.56.100 and did not meet this criterion because the applicant "... did not submit a SMIA Site Plan review at this time. Applicant elected to defer SMIA Site plan review until the building permit stage for each lot." As stated above, the Board finds the applicant did submit a SMIA site plan review for the proposed subdivision demonstrating that the subdivision lots can be sited consistent with the requirements of DCC 18.56 and 17.16.100(D) and finds the applicant can comply with Section 18.56.120, Waiver of Remonstrance, through a condition of approval to record the waiver prior to final plat approval. Section 18 56 100. Site Plan Review and Approval Criteria. A. Elements of Site Plan. A site plan shall be submitted in a form prescribed by the Planning Director or Hearings Body detailing the location of the proposed noise sensitive use, the location of the nearby surface mine zone and operation, if any, Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 6 of 24 and other information necessary to evaluate the approval criteria contained in DCC 18.56.100. B. Site plan review and approval, pursuant to the County Uniform Land Use Action Procedures Ordinance, shall be required for all uses in the SMIA Zone prior to the commencement of any construction or use. C. The Planning Director or Hearings Body may grant or deny site plan approval and may require such modifications to the site plan as are determined to be necessary to meet the setbacks, standards and conditions described above. D. The site plan shall be approved if the Planning Director or Hearings Body finds that the site plan is consistent with the site specific ESEE analysis in the surface mining element of the Comprehensive Plan and that the proposed use will not prevent the adjacent surface mining operation from meeting the setbacks, standards and conditions set forth in DCC 18.52.090, 18.52.110 and 18.52.140, respectively. FINDING: The Hearings Officer found the applicant did not meet the above criteria (A) - (D) because the applicant did not submit a SMIA Site Plan review and elected to defer SMIA Site plan review until the building permit stage for each lot. The Board disagrees. On appeal, the Applicant clarified that while it did argue to the Hearings Officer that SMIA Site Plan Review should be conducted prior to the issuance of a building permit on each lot and not at the subdivision stage, it did nevertheless submit the application, pay the fee and submit substantial evidence demonstrating compliance with the SMIA Site Plan Review criteria. There is no evidence in the record contradicting the Applicant's evidence demonstrating compliance. As Statcd above the R�ard find the nnnlirnnt cuihmittcrl a rNAIA city nlan rexrie%nr fnr tha nrnnncari 1. subdivision demonstrating that the subdivision lots can be sited consistent with the requirements of DCC 18.56 and 17.16.100(D) and finds the applicant can comply with Section 18.56.120, Waiver of Remonstrance, through a condition of approval to record the waiver prior to final plat approval. E. Public notice shall be as set forth in DCC Title 22, the Uniform Development Procedures Ordinance, except that in all cases notice of the receipt of an SMIA application shall be sent to the mine owners and/or operators whose SM Zoned site triggered the SMIA review. FINDING: The Hearings Officer, found that the applicant did not give notice, pursuant to this approval criterion. The Board finds that the Hearings Officer misinterpreted this criterion that the applicant was responsible to give notice of the SMIA application to the mine owners and/or operators of SM 322 and SM 461. The Board finds that public notice of receipt of the SMIA application rests with the County staff. The Board finds that county staff provided public notice to the adjacent mine owners, including the owners of the two adjacent surface mines in compliance with the above criterion. Section 18.56.120. Waiver of remonstrance. The applicant for site plan approval in the SMIA Zone shall sign and record in the Deschutes County Book of Records a statement declaring that the applicant and his successors will Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 7 of 24 not now or in the future complain about the allowed surface mining activities on the adjacent surface mining site. FINDING: The Hearings Officer found the applicant did not submit a SMIA Site plan review for the PUD and condition use request. As described herein and demonstrated by the record, the Board finds the applicant submitted a SMIA site plan review for the proposed subdivision demonstrating that the subdivision lots can be sited consistent with the requirements of DCC 18.56 and 17.16.100(D) and finds the applicant can comply with Section 18.56.120, Waiver of Remonstrance, through a condition of approval to record the waiver prior to final plat approval. Chapter 18.84, Landscape Management Combining Zone (LM) The Board deliberated on this topic as framed by issue 10 in the November 2, 2019 decision matrix. Section 18.84.080. Design review standards. The following standards will be used to evaluate the proposed site plan: D. Subject to applicable rimrock setback requirements or rimrock setback exception standards in DCC 18. 84.090(E), all structures shall be sited to take advantage of existing vegetation, trees and topographic features in order to reduce visual impact as seen from the designated road, river or stream. When more than one ��,.....I * ,. t .�� :� t.. nWv+ nnel nn wmaot�r#inn trooc nr tnnnarnnhir nonagricultural structure ,J aa, c�.aa a...a, .b. , r. b. r..._ features exist which can reduce visual impact of the subject structure, such structure shall be clustered in a manner which reduces their visual impact as seen from the designated road, river, or stream. FINDING: Opponents argue the determination of rimrock setback requirements for new structures and dwellings must be undertaken at the subdivision tentative plan stage. The location of the potential rimrock, they argue, can impact the feasibility of development on each lot. The Board finds that compliance with the rimrock setback of (D) above is determined as part of the Landscape Management (LM) Site Plan review that occurs prior to application for a building permit. The LM review is a public land use process subject to notice and all public participatory rights for land use applications. The LM review provisions specifically regulate the location, appearance and screening of structures and require site plan approval for those structures prior to the issuance of a building permit. DCC 18.84.050A. These provisions do not apply to a tentative subdivision approval like the present request. Opponent's concerns that the rimrock setbacks could not be met on the lots as configured were addressed by the Applicant's building envelope exhibit demonstrating sufficient area on the Lots to site a home and accessory uses without seeking exceptions to any setbacks, including rimrock. The Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 8 of 24 Board notes, based on the site visit, there is little visible rimrock on any of the Lots and finds the evidence in the record to be persuasive to establish the lot configuration will allow the lots to be developed with homes and accessory structures meeting all applicable setbacks. Chapter 18.96, Flood Plain (FP) Zone The Board deliberated on this topic as framed by issues 1, 2, 5, and 14 in the November 2, 2019 decision matrix. Section 18.96.030 The following uses and their accessory uses are permitted outright C. Open space. D. Portions of a residential use that do not contain structures, such as lawn, garden or play areas. FINDING: The Board finds that open space is a use permitted outright in the Flood Plain Zone. The Board finds the Applicant's argument that the listing of "open space" as a use means open space associated with another use, such as here, a planned development, persuasive. The evidence shows "open space" is not listed as a use in any other zone in the County. Open space, by itself, is not a use for which the County would require approval. Flood Plain zoned land is typically combined with or lit d with Sher land the Flood DI-.' boundaries ries pro hncnA nn C`�AA mnnc anri aonerallx/ Spill zoned VViU I other lal lu Siil�e the nvvu Plain vvunua �c� uI c vU- v `"N " b` 7 follow water courses. In cases of split zoning like the subject property where the adjacent zone (RR- 10) permits uses which have open space components, like planned developments, the Board finds the above provisions mean those listed portions of the development can be located in the Flood Plain zone, while those portions of the development not listed, like residential dwellings and accessory structures, cannot be located in the Flood Plain zone. Section 18.96.040 The following uses and their accessory uses may be allowed subject to applicable sections of this title: H. Subdividing or partitioning of land, any portion of which is located in a flood plain, subject to the provisions of DCC Title 18 and DCC Title 17, the Subdivision/Partition Ordinance. FINDING: The Board finds that subdividing land, of which any portion is located in a flood plain, is allowed, subject to the applicable sections of DCC Title 18. The present request contains split zoned land, partially RR-10 and partially Flood Plain, which is typical of Flood Plain zoned areas. The Board finds the present request for a planned development subdivision, where all development Lots are located in the RR-10 zoned portions of the property and all Flood Plain zoned acreage is located within the protected open space, is permitted under the applicable sections of DCC 19.96, Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 9 of 24 as set forth above. Section 18.96 110 Dimensional Standards. in an FP Zone, the following dimensional standards shall apply. C. Minimum lot size shall be 10 acres for all areas which have received an exception to the Statewide Planning Goals for resource uses. Areas which have not received an exception to the Statewide Planning Goals shall have a minimum lot size of 80 acres. FINDING: The Hearings Officer found that the minimum lot size for the flood plain -zoned portion of the property is 10-acres and that no Goal 5 exception was required. The Hearings Officer also agreed with the 2015 Land Use Decisions that Tracts C and E include at least 10 acre of FP -zoned land, and therefore, meet this criterion. The Board agrees with and adopts as its own the Hearings Officer's findings that no Goal 5 exception was required and that the minimum lot size in this case is 10 acres and, therefore this criterion is met. The Board additionally finds 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. TV_ r,v_-....,. n,J....:..:..�.-.,�:.,.. o��l...- fnADI n;V;oi-- A ir\ternrote tho rormiromantr- of rnal 7 /l nnri I IcP I I IC Oregon I /Admit istl QUVe rX Rulesvlvi�ivi -r n 4\-N-�.� a - i -Mu--�-+ +�++^� \•-^• •^ "-"' Planning) and ORS 197.732 regarding exceptions. The definition for Non -Resource lands is described in OAR 660-004-0005(3): o "Land not subject to any of the statewide goals listed in OAR 660-004-0010(1)(a) through (g) except subsections (c) and (d). If a subject property does not qualify as "agricultural or forest land," then no exception to Statewide Planning Goal 3, Agricultural Land or Goal 4, Forest Land is required because the subject property is not agricultural or forest land. We find the nonresource designation process undertaken for this property in 2008 to be the equivalent of a goal exception for purposes of applying this Flood Plain minimum lot size. The Board finds further support for this interpretation in the purpose and intent of the County Flood Plain zone, which was based on FEMA maps of areas subject to flooding, not on resource inventories, and drafted and historically applied as if it were an overlay or combining zone. This minimum lot size provision was adopted to require 80 acre minimum lot sizes in FP zoned areas designated for resource use protected by Goals 3 and 4 (with Comprehensive Plan designations Agriculture or Forest) but to allow 10 acre minimum lot sizes in FP zoned areas on all other lands (with other Comprehensive Plan designations such as, in this case, Rural Residential Exception Area). 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 Board finds Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 10 of 24 the 10 acre minimum lot size applies to the Flood Plain zoned portions of the property. Chapter 18.128, Conditional Use Section 18.128.015, General Standards Governing Conditional Uses The Board deliberated on this topic as framed by issue 6 in the November 2, 2019 decision matrix. Except for those conditional uses permitting individual single family dwellings, conditional uses shall comply with the following standards in addition to the standards of the zone in which the conditional use is located and any other applicable standards of the chapter. 3. The natural and physical features of the site, including but limited to, general topography, natural hazards and natural resources. FINDING: Opponents argue the DEQ and OHA letters certifying the site safe for residential use are not sufficient to demonstrate there are no environmental hazards from historical mining and waste disposal. The Board finds that DEQ and OHA are the applicable state agencies that possess the technical and scientific expertise in matters relating to the environment. The Board finds that the DEQ process is a public process and that the public had a right to participate. It is the Board's understanding that many of the opponents participated in the DEQ process and submitted evidence of historical environmental conditions similar to the evidence submitted herein. The Board relies on DEQ and OHA to determine the safety of the site for residential uses. At the hearing before the Board, Bob Schwarz, DEQ Project Manager, testified the subject property had completed the VCP Program and had received letters of certification for residential use from both DEQ and OHA. Contraryto assertions of the opponents, the Applicant and DEQ have submitted evidence demonstrating the NFA and No Apparent Health Hazard letters cover the entire subject property, including the 29 acres west of Lower Bridge Way. The Board finds this to be persuasive, substantial evidence upon which we conclude the conditions of the 2008 Zone Change have been met and the property has been reclaimed and certified as safe for residential use. The issues opponents raise as to 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. We find the evidence from DEQ and OHA that the property is safe for residential use to be both credible and persuasive. Section 18.128.210, Planned Development B. The conditional use may be granted upon the following findings: 6. That sufficient financing exists to assure the proposed development will be substantially completed within four years of approval. Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 11 of 24 FINDINGS: The Board deliberated on this topic as framed by issue 4 in the November 2, 2019 decision matrix. Opponents raised a number of issues directed toward the applicant's ability to successfully fund the proposed project and have it substantially completed within four years of approval. The Hearings Officer found the Applicant's testimony and evidence of investing 12 years and over $3 million dollars since 2006 to clean up the property through the DEQ VCP program was not sufficient to establish the Applicant had financial abilityto complete the proposed subdivision within 4 years of approval as required by DCC 18.128.210(B)(6). On Appeal, 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. The Board finds the Applicant's evidence that it has the financial ability to complete the project within 4 years to be sufficient and persuasive and constitutes substantial evidence upon which we conclude this criterion is met. The Board notes that this project is not a multi -phase or complicated project with substantial costs and improvements. The proposal is for a 19 lot subdivision with associated infrastructure. There is no vertical or other structural construction associated with this project. The above criterion requires the Applicant to show it can develop 19 Lots and supporting iifr try c,t� pro lniithin 4 wanrc Tka Pnainaarinv rnct PctimatP anti tPctimnn\r anti P\/iriPnfP of iii a.`�u u�.�ui c vv a y.-u, .,. -b" ��-� •• b 7 sufficient funding to complete are adequate to demonstrate compliance with the meaning of the County code requirements. The Board finds the opponent's arguments about lingering environmental costs are too speculative to require funding or evidentiary analysis as the DEQ letters certify the safety for residential use and the applicant has demonstrated significant expenditures on consultants to verify adequate and available utility and infrastructure development. Lastly, the Board finds the fact that Realvest sought protection of the bankruptcy process in 2009 through Chapter 11 Reorganization and the successful completion of that plan does not undermine our conclusion. Many real estate development companies sought bankruptcy protection during the recession. The successful completion of the reorganization by Realvest, the testimony of the representatives of the Applicant and the submission of the cost to complete and the money market account committed to the project is persuasive and demonstrates the Applicant has sufficient financial ability to complete the project in 4 years. 8. Adequate provision is made for the preservation of natural resources such as bodies of water, natural vegetation and special terrain features. FINDINGS: The Board deliberated on this topic as framed by issues 7 and 8 in the November 2, Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 12 of 24 2019 decision matrix. Opponents argue that the 19-lot riverfront development may not be granted approval by the Oregon State Parks and Recreation Commission because the proposal is not consistent with the existing low -density agricultural use and would undermine the values of the Scenic Waterway designation. The Board finds that the County implements scenic protections through the Landscape Management Combining Zone which applies to the subject property and will require individualized review of each proposed dwelling through a land use process prior to building permit approval. In addition, the Board finds that the Scenic Waterway review, through the Oregon State Parks, is also required of each proposed dwelling prior to the issuance of a building permit. The Board finds that no additional conditions, beyond those imposed by the Hearings Officer, are required as the buildings will be adequately reviewed through the LM and State Parks processes, both of which are public processes. The Board agrees with the Hearings Officer that the issues State Parks raises with regard to the Scenic Waterway designation are not related to review criteria for this subdivision request. The record shows State Parks was notified of the 2008 zone change request to RR-10 and submitted no comments in that zone change application process. The record shows 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 sf-rinrtont anrJ cohesive management strategies rlacianari to nrntart anri mnnitnr thasa 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. We find 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. The Board also notes that 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. Opponents argue that the proposed PUD will have negative impacts on wildlife habitat and that the riparian area was surveyed during dormancy and is not an adequate baseline to measure existing conditions or set standards for preservation. ODFW recommends that the County ensure sufficient compensatory mitigation plan to address wildlife impacts, such as riparian, deer, and eagle habitats and urges the County to implement stringent setback standards for future development of the property. Evidence in the record includes a Riparian Area Management Plan (RAMP) prepared by a professional biologist that contains prohibitions on development in the flood plain and riparian areas with stringent and cohesive management strategies design to protect and monitor the RAMP area. We find this plan to be more protective of the resources than a standard subdivision allowed Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 13 of 24 outright on the adjacent RR-10 zoned land. We further find that the subject property is not located in the County's Wildlife Area Protection zone or any of the sensitive bird or mammal habitat zones. It is not subject to any applicable approval criterion requiring compensatory mitigation. We find the County protections which do apply to the subject property, including the FP zone provisions prohibiting structures, the LM provisions regulating scenic resources and the State scenic water provisions, together with the additional protections of the RAMP to demonstrate adequate provision is made for the natural resources on the subject property within the meaning of the above criterion. The Board finds that the proposed development plan, even with the additional density, provides more protection for the scenic and riparian resources than a standard subdivision. The Board finds that to protect the riparian area it is important to consolidate access to the river from the 19 Lot development. As a condition of approval, the Board will limit access in the riparian area, as defined in the RAMP study, to one consolidated, signed access point, directing residents to use the trail access only and prohibiting access through the riparian area except on designated trails. D. Dimensional Standards. 3. The minimum lot area, width, frontage and yard requirements otherwise applying to individual buildings in the zone in which a planned development is proposed do not apply within a planned development. An equivalent overall density factor may be utilized in lieu of the appropriate minimum lot area FINDINGS: The Board deliberated on this topic as framed by issue 3 in the November 2, 2019 decision matrix. Opponents argue that a PUD is not a permitted use in the FP zone and therefore flood plain zoned land cannot be used to calculate the density in a PUD. The Board adheres to and incorporates its previous finding that when, as here, there is split zoned property, with a portion being Flood Plain and a portion being RR-10 where uses are allowed that have open space components, such as planned developments, the open space for the project can be located in the Flood Plain zone because it is specifically listed as a use in that zone. From this finding, it stands to reason that a property owner is not required to deduct the Flood Plain zoned acreage from the overall project acreage calculations because it is a part of and integrally managed with the development by the Lot owners as protected open space. The Board further notes the County has historically allowed flood plain zoned acreage to be included as open space in cluster and planned developments. Evidence in the record shows historical decisions that include flood plain in the calculations of the subdivision proposal. Finally, the Board finds the Planned Unit form of development, specifically defined in DCC 18.04, and authorized under DCC 18.128, allows development at a density of 1 unit per 7.5 "according to a plan that does not necessarily correspond in lot size, bulk or type of dwelling, density, lot concept Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 14 of 24 or required open space to the standard regulations otherwise required by DCC Title 18." The County Code further defines "Lot area" to include gross acreage, including right of way, for purposes of calculating density and lot area. Gross acreage is used to calculate the overall project dimensions and the Board finds this includes Flood Plain zoned acreage in the present request. The present proposal to create 19 lots ranging in size from 2 to 5 acres and comprising 42.5 acres in private lot area, with 94.1 acres of open space area on 144.7 acres project area is consistent with the definition and approval criteria for a planned development and the applicable provisions of the Flood Plain zone. Any increased density allowed by this development plan over and above the standard subdivision allowed outright in the RR-10 zone isjustified based on the 94.1 acres of protected open space and the cohesive stewardship plan to both fund and implement the open space and riparian management plans for the property. Title 17, The County Subdivision and Partition Ordinance Section 17 16.100. Required Findings for Approval. A tentative plan for a proposed subdivision shall not be approved unless the Planning Director or Hearings Body finds that the subdivision as proposed or modified would meet the requirements of this title and Titles 18 through 21 of this code and is in compliance with the comprehensive plan. Such findings shall include, but not be limited to, the following. n Cor Jubiliademv. on ^r por ti^nr thereof prnrnncod within n C►i rfnro Mining /mnnrt Arpn LIP(SMIA) zone under DCC Title 18, the subdivision creates lots on which noise or dust sensitive uses can be sited consistent with the requirements of DCC 18.56, as amended, as demonstrated by the site plan and accompanying information required under DCC 17.16.030. FINDING: The Board deliberated on this topic as framed by issue 9 in the November 2, 2019 decision matrix. The Hearings Officer found "thatApplicant did NOT clearly and definitively submit and support a request for a SMIA Site Plan review, rather, Applicant requested the Hearings Officer defer SMIA Plan review until the building permit stage" and found this criterion was not met. The Board finds the evidence in the record shows the applicant applied for the SMIA review, paid the requisite fee, and submitted the subdivision and builder's envelope plans. In addition, the Board finds the applicant submitted evidence that establishes all proposed buildable areas were over 250 feet from both of the applicable surface mining sites, #322 and #461. Finally, the Board finds that the applicant has demonstrated that the subdivision lots can be sited consistent with the requirements of DCC 18.56 and 17.16.100(D) and finds the applicant can comply with Section 18.56.120, Waiver of Remonstrance, through a condition of approval to record the waiver prior to final plat approval. Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 15 of 24 Section 17.36.170. Lots, Size and Shape. 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, and shall be consistent with the lot or parcel size provisions of DCC Title 18 through 21, with the following exceptions: FINDING: The Board deliberated on this topic as framed by issue 11 in the November 2, 2019 decision matrix. Opponents question whether all lots are developable given siting constraints on the proposed building sites, such as rimrock setbacks, and believe the Board should require the applicant to conduct a rimrock survey of the lots to determine feasibility of residential construction on the lots. The Board finds that the lots have ample size to construct a dwelling, well, and septic. 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 lot to 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. The BoarA f, .r+hor finale thorn mre nn nnnlirahla annroval rritaria %niarrantina a rimrnrk ei irvav Tha i is uvai u i ui Ll 1c1 1 n 1u5 L, 1 , — - ..v ufJJJ11 ..,.,..,- ....rlt- ................b ... ,...... -1. ...- rimrock setbacks are imposed through LM review, which is required prior to the issuance of a building permit and which is a public land use process subject to all notice and participatory rights. V. DECISION: Based on the findings of fact and conclusions of law set out above, by a vote of 3-0 the Board hereby APPROVES the Applicant's proposed Conditional use and tentative subdivision plan to establish a 19-lot residential planned development on three parcels totaling 144.7 acres and reverses on appeal the September 24, 2019, Hearings Officer's Decision (file no. 247-19-000405-CU/406-TP/407- SMA/741-A and 757-A), which denied the application, subject to the following conditions: A. This approval is based upon the application, site plan, specifications, and supporting documentation submitted by the Applicant. Any substantial change in this approved use will require review through a new land use application. A substantial change to the site plan will result if the Redmond Fire Department requires a "second road" access meeting County "road" standards into the Subject Property. B. The Applicant shall obtain any necessary permits from the Deschutes County Building Division and Environmental Soils Division. Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 16 of 24 C. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed by DCC 18.120.040 D. Structural setbacks from any north lot line shall meet the solar setback requirements in DCC 18.116.180. E. The Applicant shall lawfully reconfigure the legal lots to correspond with the proposed plat boundaries, or otherwise establish the proposed plat boundaries as legal lot(s) prior the recording of any final plat under this approval. F. The Applicant shall not seek, nor be granted, exceptions from setback requirements set forth in DCC 18.60.050, DCC 18.84, DCC 18.56.100 D and the Oregon Scenic Waterway laws. G. The Applicant shall sign a Waiver of Remonstrance Easement for Surface Mining Site nos. 461 and 322 prepared by the county, record the document in the Deschutes County Book of Records, and submit a copy of the recorded document to the Planning Division prior to final plat approval. H. Lot Coverage. The main building and accessory buildings located on any building site or lot shall not cover in excess of 30 percent of the total lot area. 1. Riparian Area Management Plan Implementing Conditions: 1 Prohibit, Within thn rivar ranvnn araa (araa hPlnwi the hanrh/nlataaii) of changes in the natural grade including no alteration, removal or destruction of natural vegetation excepting when done as part of an ODFW approved habitat enhancement project; and 2. Prohibit construction of any structure, whether or not it requires a building permit, closer than 50-feet from any rimrock; and 3. Compliance with all provisions of the Revised RAMP; and 4. Prohibit the feeding of wildlife; and 5. Recording in the Deschutes County public records a copy of the CC&Rs with a copy of the Revised RAMP attached; and 6. Compliance with DCC 18.96.060. J. Fire Hazard Mitigation Conditions. 1. Compliance with the Redmond Fire and Rescue water storage requirements; and 2. Confirmation that only one access road is required; and 3. The cul-de-sac designs shall meet the requirements of Redmond Fire and Rescue; and 4. Additional conditions may be added by the Board based upon on additional information received from Redmond Fire and Rescue. K. In order to prevent or minimize erosion and/or pollution, changes in the natural grade Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 17 of 24 of land, or the alteration, removal or destruction of natural vegetation riverward of proposed and actual existing strictures or on existing slopes over 10 percent within the canyon shall be prohibited unless they are part of an ODFW approved habitat enhancement project. L. Any new structure or substantial exterior alteration of a structure requiring a building permit or an agricultural structure within an LM Zone shall obtain site plan approval in accordance with DCC 18.84 prior to construction. No setback exceptions will be granted in LM review for any lot/dwelling. M. The property owner shall convey to the County a conservation easement, as defined in DCC 18.04.030, "Conservation Easement," affecting all property on the subject lot which is within 10 feet of the ordinary high-water mark of the river or stream, prior to final plat approval. N. Notwithstanding DCC 18.84.090(E), structures in the PUD are precluded from receiving exceptions to the rimrock setback standards. O. All necessary federal, state and local government agency permits shall be obtained for work in the Flood Plain Zone. P. Structures are prohibited in the Flood Plain zoned portions of the property. n n✓ . +, f n t t-+ .....ol .tr inn n �i jhmittal nmri/m a that IS In `nnfnrmanra With �. ri ivy iu iI �ai'p,ai appi vVal, a � , aI� �ug� �a�ui � t+ ug the standards and criteria found within the Central Oregon Stormwater Manual shall be submitted to Deschutes County for review and acceptance. Drainage facilities shall be designed and constructed to receive and/or transport at least a design storm as defined in the current Central Oregon Stormwater Manual and all surface drainage water coming to and/or passing through the development or roadway. R. All new surface water drainage shall be retained on -site on the upper bench/plateau of the subject property and outside the FP Zone. S. Drainage facilities compliant with the Central Oregon Stormwater Manual shall be designed for maximum allowable development. T. Each residential lot receive an approved septic site evaluation, prior to final plat approval. U. Road and Traffic Mitigation Conditions: Prior to construction of public and private road improvements: 1. The Applicant shall submit road improvement plans for private roads to Road Department for approval prior to commencement of construction pursuant to DCC 17.40.020 and 17.48.060. The roads shall be designed to the minimum Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 18 of 24 standard for a private road pursuant to 17.48.160, 17.48.180, and 17.48A. Road improvement plans shall be prepared in accordance with all applicable sections of DCC 17.48; and _ 2. Improvement plans shall include provisions for improvements on Lower Bridge Way to provide for the required intersection sight distances according to recommendations given in an acceptable Site Traffic Report. 3. Review and approval by the Road Department that Applicant Exhibit PH-2 meets all applicable transportation related requirements. Prior to final plat approval by Road Department: 4. The Applicant shall complete road improvements according to the approved plans and all applicable sections of -DCC 17.48. Improvements shall be constructed under the inspection _ of a register professional engineer consistent with ORS 92.097 and DCC 17.40.040. Upon completion of road improvements, Applicant shall provide letter from the engineer certifying that the improvements were constructed in accordance with the approved plans and all applicable sections of DCC 17.48; and 5. Maintenance of the interior private roads shall be assigned to a home owners association by covenant or plat pursuant to DCC 17.16.040, 17.16.105, 17.48.160(A), and 17.48.180(E). If by covenant, Applicant shall submit covenant to Road Department or Community Development Department for review and shall record covenant with the County Clerk upon Road Department approval. A copy of the recorded covenant shall be submitted to the Community .. + n . , tti, Y,+ r+ final plat mHjr n�i�l• �nrui Development LJepa t Kill pr loJ to i Ial plat mpp n%in'; ae 6. All easements of record or existing rights of way shall be noted on the final partition plat pursuant to DCC 17.24.060(E), (F), and (H); and 7. The Applicant shall dedicate additional right of way to provide the required right-of-way width of 30 feet from the centerline on each side of the road (60- feet total minimum width) on Lower Bridge Way pursuant to DCC 17.36.020(B), 17.36.080, and 17.48A. Dedication shall be by plat declaration; and 8. The surveyor preparing the plat shall, on behalf of the Applicant, submit information showing the location of the existing roads in relationship to the rights of way to Deschutes County Road Department. This information can be submitted on a worksheet and does not necessarily have to be on the final plat. All existing road facilities and new road improvements are to be located within legally established or dedicated rights of way. In no case shall a road improvement be located outside of a dedicated road right of way. If research reveals that inadequate right of way exists or that the existing roadway is outside of the legally established or dedicated right of way, additional right of way will be dedicated as directed by Deschutes County Road Department to meet the applicable requirements of DCC Title 17 or other County road standards. This condition is pursuant to DCC 17.24.060(E),(F), and (G) and 17.24.070(E)(8); and 9. The Applicant shall submit as -constructed improvement plans to Road Department pursuant to DCC 17.24.070(E)(1); and Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 19 of 24 10. The Applicant shall submit plat to Road Department for approval pursuant to DCC 17.24.060(R)(2), 100, 110, and 140. V. Dust Mitigation Conditions: The Applicant shall mitigate dust from construction related ground disturbance at all times using the following Best management Practices: 1. Applicant shall include, in its Dust Control Plan (Exhibit 14, Attachment D), all of the following: a. Clearing and grubbing shall be held to the minimum necessary for grading and equipment operation; and b. Construction shall be sequenced to minimize the exposure time of the cleared surface area; and C. Exposed soils shall be quickly stabilized using vegetation, mulching, spray -on adhesives, calcium chloride, sprinkling, and stone/gravel layering; and d. Key access points shall be identified and stabilized prior to commencement of construction; and e. The impact of dust shall be minimized by anticipating the direction of prevailing winds; and f. Most construction traffic shall be directed to stabilized roadways within the project site; and g. Water shall be applied by means of pressure -type distributors or line with system r hoses and nozZloc that Will pipelines equipped 'VVllll U spray JyJic� i i of hoses a, iu i IVLLI�..a ensure even distribution; and h. All distribution equipment shall be equipped with a positive means of shutoff; and i. Unless water is applied by means of pipelines, at least one mobile unit shall be available at all times to apply water or dust palliative to the project; and j. Pre -construction vegetative ground cover shall not be destroyed, removed, or disturbed more than twenty calendar days prior to land disturbance; and k. Temporary soil stabilization with appropriate vegetation shall be applied on areas that will remain unfinished for more than thirty calendar days; and I. Permanent soil stabilization with perennial vegetation or pavement shall be applied as soon as practical after final grading; and M. Irrigation and maintenance of the perennial vegetation shall be provided for thirty calendar days or until the vegetation takes root, whichever is longer; and n. Prior to any approval of mining use on SM Site 461 Applicant shall provide owners of the Subject Property (including individual lots) assurance of adequate dust control measures on SM Site 461. Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 20 of 24 W. All lighting shall be shielded and directed downward in accordance with DCC 15.10, Outdoor Lighting Control. X. Open Space Management Conditions: 1. Uses permitted in the open space tracts include the management of natural resources via the RAMP, creation and maintenance of trail systems, and other outdoor uses that are consistent with the character of the natural landscape; and 2. Off -road motor vehicle use is prohibited in the open space tracts; and 3. Construction of additional trails within the riparian area subject to the RAMP shall be limited to one consolidated access point which is signed and directs residents to use the trail access only and prohibits access through the riparian area except on designated trails. 4. Where the natural landscape on an open space tract has been altered by prior land use such as surface mining, reclamation and enhancement of the open space tract is permitted to create or improve wetlands, create or improve wildlife habitat, restore native vegetation, and provide for agricultural or forestry use after- reclamation. All land use approvalsrequired for such projects -- such as work in mapped wetlands, floodplains, and within the bed and bank of the Deschutes River - shall be obtained from Deschutes County; and 5. At the time the Applicant/owner transfers ownership of the open space tracts tot+tj unn the Applicanti.,wn r shall II rnrnrrl Aiith the Ilec`huitnc (minty rlPrl( eiI%Jn,aIc r1% I�.aiiu VVVI 1eI .Ilan i-1�.n `J deed restrictions on the open space tracts assuring that use of the tracts is limited to the use(s) allowed in the approved PUD, and precluding construction of any residential dwelling on the tracts, for as long as the open space tracts remain outside an urban growth boundary. Y. Structures and/or earthmoving are prohibited on or below slopes exceeding 10 percent within the canyon. Habitat improvement projects approved or sponsored by ODFW and not subject to this requirement. Z. All conditions of ZC-08-1/PA-08-1 continue to apply to the use and development of the subject property. AA. The subdivision plat name shall be subject to the approval of the County Surveyor, prior to final plat approval. AB. Domestic Water Supply Statement: Prior to final plat approval, a statement that no domestic water supply facility will be provided to the purchaser of any lot depicted in the proposed subdivision plat, even if a domestic water supply source may exist. A copy of any such statement, signed by the subdivider and indorsed by the County, shall be filed by the subdivider with the Real Estate Commissioner and shall be included by the commissioner in any public report made for the subdivision under Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 21 of 24 ORS 92.385 (Examination). If the making of a public report has been waived or the subdivision is otherwise exempt under the Oregon Subdivision Control Law, the subdivider shall comply with the applicable provisions of ORS 92.090(4)(c). AC. Sewage Disposal Statement: Prior to final plat approval, a statement that no sewage disposal facility will be provided to the purchaser of any lot depicted in the proposed subdivision plat, where the Department of Environmental Quality has approved the proposed method or an alternative method of sewage disposal for the subdivision in its evaluation report described in ORS 454.755 (Fees for certain reports on sewage disposal) (1)(b). A copy of any such statement, signed by the subdivider and indorsed by the city or county shall be filed by the subdivider with the Real Estate Commissioner and shall be included by the commissioner in the public report made for the subdivision under ORS 92.385 (Examination). If the making of a public report has been waived or the subdivision is otherwise exempt under the Oregon Subdivision Control Law, the subdivider shall comply with the applicable provisions of ORS 92.090(5)(c). AD. No street name shall be used which will duplicate or be confused with the name of an existing street in a nearby city or in the County. Street names and numbers shall conform to the established pattern in the County and shall require approval from the County Property Address Coordinator. AE. Easements shall be provided along property lines when necessary for the placement ofi i..ead underground tiI tic-S Ind rn nr viirin the cuihrrfix/icinn nr nartitinn With VVeIIICQU or ui1uC�SiLuiiu u�inuc.�, a,�u w l.a Cvu. h.u. electric power, communication facilities, street lighting, sewer lines, water lines, gas lines or drainage. Such easements shall be labeled "Public Utility Easement" on the tentative and final plat; they shall be at least 12 feet in width and centered on lot lines where possible, except utility pole guyline easements along the rear of lots or parcels adjacent to unsubdivided land may be reduced to 10 feet in width. AF. A stormwater easement or drainage right of way conforming substantially with the lines of the Deschutes river shall be provided, prior to final plat approval. AG. Grading of building `sites shall conform to the following standards, unless physical conditions demonstrate the property of other standards: 1. Cut slope ratios shall not exceed one foot vertically to one and one half feet horizontally; and 2. Fill slope ratios shall not exceed one foot vertically to two feet horizontally; and 3. The composition of soil for fill and the characteristics of lots and parcels made usable by fill shall be suitable for the purpose intended; and 4. When filling or grading is contemplated by the subdivider, that person/entity shall submit plans showing existing and finished grades for the approval of the Community Development Director. In reviewing these plans, the Community Development Director shall consider the need for drainage and effect of filling on adjacent property. Grading shall be finished in such a manner as not to Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 22 of 24 create steep banks or unsightly areas to adjacent property. AH. The Applicant shall pay a fee in lieu of dedication of park land in the amount of $350 per dwelling unit, prior to final plat approval. Al. No on street parking shall be allowed within bike lanes. Aj. Culverts and Drainage 1. Road culverts shall be concrete or metal with a minimum design life of 50 years. 2. All cross culverts shall be 18 inches in diameter or larger; and 3. Culverts shall be placed in natural drainage areas and shall provide positive drainage; and. 4. Drainage Swales. The Design Engineer is responsible to design a drainage swale adequate to control a design storm as defined in the Central Oregon Stormwater Manual created by Central Oregon Intergovernmental Council; and 5. Drainage Plans. A complete set of drainage plans including hydraulic and hydrologic calculations shall be incorporated in all road improvement plans; and 6. Drill Holes. Drill holes are prohibited; and 7. Injection wells (drywelis) are prohibited in the public right-of-way. AI! t___In the-Su'DjteCt Property hall h., eiilrllifo frienr41%1 onrl meet the HR. /III ICIILIIIg oll UIC 7Uu�Cll rrvper iy snare uc vvnUnJc ii�� I—Y --- requirements of DCC 18,88.070. AL. The applicant shall obtain OPRD approval for the PUD (prior to Final Plat approval) and for each individual dwelling (prior to a building permit being issued). AM. All sewage disposal installations, such as septic tanks or septic drainfields, shall be set back from the ordinary high water mark along all streams or lakes a minimum of 100 feet, measured at right angles to the ordinary high water mark. In those cases where practical difficulties preclude the location of the facilities at a distance of 100 feet and the County Sanitarian finds that a closer location will not endanger health, the Planning Director or Hearings Body may permit the location of these facilities closer to the stream or lake, but in no case closer than 25 feet. AN. All structures, buildings or similar permanent fixtures shall be set back from the ordinary high water mark along all streams or lakes a minimum of 100 feet measured at right angles to the ordinary high water mark. AO. All computations related to DCC 18.128.210 B.7 shall carried out to two decimal places. Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 23 of 24 VII. DURATION OF APPROVAL The applicant shall initiate the use for the proposed development within two (2) years of the date this decision becomes final, or obtain approval of an extension under Title 22 of the County Code, or this approval shall be void. Dated this day of January , 2020. BOARD OF COUNTYCOMMISSIONERS FOR DESCHUTES COUNTY Patti Adair, Chair Anthony DeBone, Vice Chair Philip G. Henderson, Commissioner THIS DECISION BECOMES FINAL WHEN MAILED. PARTIES MAY APPEAL THIS DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS DECISION IS FINAL. Board of County Commissioners Decision, Document No. 2020-080 File Nos. 247-19-000405-CU/406-TP/407-SMA / 247-19-000741-A/757-A Page 24 of 24 L�0T E S CMG �i, 2 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 January 15, 2020 DATE: January 9, 2020 FROM: Zechariah Heck, Community Development, 541-385-1704 TITLE OF AGENDA ITEM: CONTINUED PUBLIC HEARING: Nonprime Resource Lands BACKGROUND AND POLICY IMPLICATIONS: An initial public hearing was held by the Board on November 18, 2019 to consider proposed Comprehensive Plan amendments that establish eligibility criteria for six specific areas currently designated Exclusive Farm Use or Forest Use to Nonprime Resource (NPR) Lands. The Board continued the public hearing to January 15, 2020. FISCAL IMPLICATIONS: None ATTENDANCE: Zechariah Heck, Associate Planner; Peter Gutowsky, Planning Manager; Nick Lelack, CDD Director. a C0Fk MUNi.GY DE "GE_L OMPViEi T MEMORANDUM TO: Board of County Commissioners ("Board") FROM: Zechariah Heck, Associate Planner DATE: January 8, 2020 SUBJECT: Nonprime Resource Lands / Hearing Preparation (File No. 247-19-000265-PA) The Board will continue a public hearing on the Nonprime Resource ("NPR") Lands amendments on January 15, 2020. I. BACKGROUND An initial public hearing was held by the Board on November 18, 2019 to receive public testimony and consider the Planning Commission's recommendation to approve Comprehensive Plan amendments that establish eligibility criteria for six specific areas currently designated Exclusive Farm Use or Forest Use to Nonprime Resource (NPR) Lands, defined in Oregon Administrative Ruies (OAR) 660-004-0005(3) as "Non Resource Lands." These areas are legacy residential developments as they were platted or conveyed prior to State enabling planning legislation taking effect in Deschutes County. The six subject properties are: • Haner Park • Section 36 (Township 22, Range 10) • Skyline Subdivision • 1 st Addition to Skyline Subdivision • Squaw Creek Canyon Recreational Estates 1 st Addition • Meadow Crest Acres Subdivision Central Oregon Landwatch commented during the November 18 hearing in addition to submitting written testimony. 1,000 Friends of Oregon also submitted written testimony. Both organizations oppose the proposed amendments by stating the County has made conclusionary statements that lack factual basis for complying with Statewide Planning Goals 2 - Land Use Planning, 3 - Agricultural Lands, 4 - Forest Lands, 5 - Natural Resources, 7 - Natural Hazards, 10 - Housing, 11 - Public Facilities and Services and 12 -Transportation. The hearing was continued to January 15, 2020. 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 UPDATED FINDINGS / POLICIES Staff is in the process of responding to the concerns raised by Central Oregon Landwatch and 1,000 Friends of Oregon by coordinating with Oregon State Extension, County Forester, Oregon Department of Fish and Wildlife, rural fire protection districts, and the cities of Bend, La Pine, Redmond and Sisters. Staff requests the Board consider an open record period after the January 15 public hearing to allow several letters from the above mentioned agencies to be included in the record. Goal 2 - Land Use Planning Both Central Oregon Landwatch and 1,000 Friends of Oregon expressed concern of the terminology "committed residential areas", by suggesting it inflates a relationship with the State exception process (ORS 197.732(2)(b) and OAR 660-004-0028). This was not the intention. The purpose of the amendments is to address six legacy residential developments that preceded the statewide land use system. These areas are developed with residential uses and contain rural -residential infrastructure, i.e., septic systems, roads, electric utilities. Each subject property has a small average lot size. There is no history or evidence of farm or forest uses. Nonetheless, staff has omitted the word "committed" in reference to these areas to clear any potential confusion. Goal 3 - Agricultural Lands Squaw Creek Canyon Recreational Estates 1st Addition and Meadow Crest Subdivision are zoned Exclusive Farm Use, which is intended to preserve agricultural land and restrict developments unrelated to farming activities that may create conflicts.' However, both of these areas are residentially developed, have less than a 2.5 acre average lot size, and each lot is privately owned by separate parties. There is no history or evidence of agricultural uses or irrigation on these properties. Staff has coordinated with Oregon State Extension to perform an analysis of the commercial viability of farming these properties. Unfortunately, Oregon State Extension was not able to provide a letter by the submittal date of this memorandum. Staff will update the Board on January 15 regarding an anticipated letter. Goal 4 - Forest Lands Skyline Subdivision, 1 st Addition to Skyline Subdivision, Haner Park, Section 36, and a portion of Squaw Creek Canyon Recreation Estates are zoned Forest Use 2, which is intended to preserve forest lands for commercial forestry. Despite the purpose of the zone, these areas are developed with residential uses and have no history of commercial forest activities. County Forester Ed Keith performed an analysis to determine the economic potential of each area if utilized as the zone intends, i.e., a commercial forestry operation (Attachment 1). Mr. Keith's analysis concludes that only a small-scale firewood business could exist on the subject properties. Such an operation would yield approximately $18.22 per acre on an annual basis for the most productive areas. ' Squaw Creek Canyon Recreation Estates has an area zoned Forest Use 2 as well. Page 2 of 9 Mr. Keith's analysis justifies why these areas are not suitable for commercial forest uses, now and into the future, including adjacent or nearby lands for forest operations and practices. Goal 5 - Natural Resources Three of the subject properties contain acknowledged Goal 5 habitat for winter deer range or deer migration corridors: • Squaw Creek Canyon Recreational Estates 1 st Addition (Winter Deer Range) • Meadow Crest Acres Subdivision (Deer Migration Corridor) • Section 36 (Deer Migration Corridor) Deschutes County acknowledges the Wildlife Combining Zone, a Goal 5 wildlife inventory affects these three areas. However, the proposal does not create a new conflicting use. Residential uses and their accessory structures are allowed today and would be permitted if the Comprehensive Plan policies are adopted and a corresponding zone change to Nonprime Resource Lands -10 occurs. The process for developing a residential use is the only thing that would change. Today, a property owner must apply and receive approval for a conditional use permit to develop a residence! Single-family residential uses would be permitted outright if the proposed amendments are adopted and the County subsequently adopts and applies a Nonprime Resource Lands zone to the subject properties. This would help eliminate the regulatory burden faced by property owners in these areas, without creating a new conflicting use. Staff has coordinated with the Oregon Department of Fish and Wildlife (ODFW) to determine if they have any concerns with the County's proposal. Clarification that all new housing, regardless if it is permitted conditionally or outright, is required to meet Wildlife Area Combining Zone fencing and siting standards was shared with the department. ODFW staff had not submitted any concerns at the time of writing. Goal 7 - Natural Hazards and Goal 12 - Transportation Testimony submitted on November 18 described concerns with permitting additional development in areas that could be considered a wildfire hazard area. In response to this concern, staff asked fire districts to comment on the proposed amendments. Sisters - Camp Sherman Rural Fire Protection District and Deschutes County Rural Fire Protection District #2 both provided comments, Attachments 2 and 3, respectively. The fire districts stated no concerns regarding the proposal. Both districts referenced the policies that prevent future land divisions (Policies 3.3.2 and 3.11.6) and the fact that a limited number of future residences could be established on the subject properties. Furthermore, staff has updated the proposed Comprehensive Plan policies to include a new policy, Policy 3.11.2 that addresses wildfire hazards and transportation access by requiring applicants to demonstrate a subject property has adequate fire protection. z DCC 18.128.015, General Standards Governing Conditional Uses, which contain compatibility criteria, do not apply to individual single-family dwellings. Page 3 of 9 Policy 3.11.2 In addition to State rules governing nonresource lands, to qualify fora Nonprime Resource Lands comprehensive plan designation and Nonprime Resource Lands zoning, a property must demonstrate: a. It is located in afire -protection district or can be annexed into one, b. There is adequate access for fire apparatus to serve the subject property, or c. Other measures that prove there is adequate fire protection for potential uses. This policy will inform a provision in a Nonprime Resource Lands -10 zone to ensure that prior to issuing a new residential dwelling permit, the applicant demonstrates adequate access and fire protection. With the letters from fire districts now a part of the record and the inclusion of a specific wildfire hazard policy, there are no Goal 7 or 12 impacts with the proposed amendments. Goal 10 - Housing In aggregate, a total of 110 residences could be established on the six subject properties. The nearest property proposed for redesignation is approximately two miles awayfrom an Urban Growth Boundary (UGB), i.e., Squaw Creek Canyon Recreational Estates to the City of Sisters. The rest of the properties are at least three miles away from an UGB. Staff has coordinated with the cities of Bend, Sisters, La Pine, and Redmond to determine if there would be any impact on their Goal 10 - housing obligations in case the proposed amendments yielded full build -out of each subject property. Each municipality provided a letter for the record stating there would be no impact on their housing objectives (Attachments 4, 5, 6, and 7). Not one of the subject properties is within a city's 20-year housing needs analysis or buildable lands inventory. These letters demonstrate there are no Goal 10 impacts with the _riii.. d proposed amendments. i ients. Goal 11 - Public Facilities and Services Opposition to the proposed amendments include assertions they fail to address whether the soils and water table for the subject properties are of sufficient quality and depth to accommodate the wastewater needs of potential residential development. Todd Cleveland, Deschutes County Environmental Health Supervisor, has provided a letter to the record stating onsite wastewater treatment systems are not a significant limitation to residential uses on the subject property (Attachment 8). Additional statements were raised that the findings failed to address whether domestic wells will provide sufficient water for the proposed uses and whether additional residential water use will impact irrigation on resource lands. There are no groundwater limitations near the subject properties. Oregon Water Resource Department (OWRD) is responsible for administering State regulations relating to domestic wells and irrigation demands. Deschutes County does not have the authority to prohibit land uses based on concerns of limited groundwater availability. It is the responsibility of a property owner to verify with OWRD that a domestic well could be successful. This is the modus operandi today when one applies for a residence in the County, regardless of zoning, and it will remain if the County's proposal is adopted. Page 4 of 9 Summary The State land use system is not working for these six legacy residential areas zoned EFU and Forest Use. Property owners in these areas must go through a perfunctory process in order to exercise their property rights because of inaccurate zoning designations. The subject properties look and act like rural residential subdivisions. They have decades of residential development since each area was platted or conveyed prior to State land use legislation taking effect in the County. A majority of the properties are developed with single-family residences and will continue to be developed. The question at hand is what process the County and State will require property owners to go through? The State's non -resource land program, locally referred to as Nonprime Resource Lands, is a mechanism that can alleviate the regulatory burden and reflect the actual lay of the land of these legacy residential areas. This has been an issue Deschutes County has attempted to address for over a decade. The County has been told these areas are not mapping errors, and, thus, cannot be addressed through the State's Big Look Bill. Staff from the Department of Land Conservation and Development (DLCD) have stated the County cannot utilize an exception process for these areas because too many non -farm and template dwellings have been approved. The only option to address the anomaly of the situation is to redesignate the subject properties under the proposed Nonprime Resource Lands amendments. The system creating a hardship for the property owners of Squaw Creek Canyon Recreation Estates, Skyline Subdivision and 1 st Addition, Meadow Crest Acres, Haner Park and Section 36 can be improved. The State's non -resource land program permits a jurisdiction to rezone properties that have an exceedingly low capacity to be managed for commercial agriculture and/or forestry activities. The i__ I_:__ +: ..�.J ., +.... ,. ++4... definitions feither agric its Ira1I nd nr fnrnct County has shown he suu�ect properties UU not I I net tl a UCI II IIIIUI I� of CR1 ICI a�1 II.UIItA� G� iai iu lands found in Statewide Planning Goals 3 and 4 and accompanying Oregon Revised Statutes and Oregon Administrative Rules due to the presence of poor soil conditions, a lack of irrigation, climate conditions and other relevant factors, including but not limited to past use. Furthermore, the attached letters demonstrate the County has adequately coordinated with applicable agencies and jurisdictions to confirm the proposal complies with applicable statewide planning goals and State law. III. NEXT STEPS An attached matrix lists the updated draft goal and policy amendments with staff comments. Again, the County will propose a new NPR Lands designation and NPR-10 zone solely to the six legacy residential areas if the amendments are acknowledged. This new zone will allow a single-family dwelling or a manufactured home and their accessory uses outright. At the conclusion of the public hearing, the Board can: • Continue the hearing to a date certain; • Close the hearing and leave the written record open to a date certain; or • Close the hearing and commence deliberations or schedule to a later date. Page 5 of 9 Attachments: 1. Letter from Ed Keith, Deschutes County Forester 2. Letter from Sisters - Camp Sherman Rural Fire Protection District 3. Letter from Deschutes County Rural Fire Protection District 4. Letter from the City of Bend 5. Letter from the City of Redmond 6. Letter from the City of Sisters 7. Letter from the City of La Pine 8. Letter from Todd Cleveland, Deschutes County Environmental Health Supervisor Page 6 of 9 N C O 0 u a) v C v E > -0 *_.+ C a) L E V C E C J Q uC O bA L aJ o O m v °; o � .? Z c v N a) aO' a) L M L C �j C c L E O z n. up -o a) a) L 4- 3 4.1 L p U ro Ln VIn to � E � 3 -0 a) J i nt s EE o E Ln � Ln c Q OLn Ln �o aJ E c C_� C: L O C" Z LL > O O Ln W } N Z r6 fO aL�+ C W T c '> c ro ' cD C "O C- a 0-C)O c > 4-1 V- O C ,n Lo o bA L6 s a) w m 0 a) Ln Q a) >_ O ate) C O at- C tA i � E a) bA O rip -c c p Ln a-+ a)) v v E _O = w C 4.1 E Q .S; -O c l%1 u `6 o aa)i a) c N a_ L m ,C Ln L Ln w C N O ONLA CL a1 c i L- Ln 1Lvi -+ a C }Nj � O c ai aJ QCJ aj i E .O E L N wa O J E Ln aj u° u° 4.1 vLn E cC: T E m -Cm 4- _ 4-1 `a E c o -c E V) Ln L, ai C Ln Ln a) C C L m E C O O N 0 4O �, c c m a) 6 C a� L a) �= Ln C:i �_ � � m C_ m (A 7 alM (In J cr _ Q a) C C C LA NN O > J a-1 U U v D E c 4,1 !� C_ O n v m v a; E Ln L° C ro a) c o c - E J I LA m o E N aiQ_ c a) �; b0 i L C O qq M Z H C O C O J C L to C J a O N N a•.+ m n N O Ln (V L 41 a .1 0 N C N L m E 0 Ln.> L Q U. c i v O C m Q m a) y 0 c N O L C_ C N -C ad to Q L OL N> Z o >, v b.0 Z L C- M M 0 u X o C O Ln c -p E C C i w a) N p L � u 0 M C_ L to a) '� M p Ln u E Vi Ln Q' @ � N 7 _ p 0- CD E (=) LA -0 E Lr, An O 4' m c u O Ln M C a) cr E > aJ a C 3 CD a) Ln 0 O i O 431 @ -0 p C N Q .� l0 O_ = H = J O M 17 c- N N M M M N CV M M v u d d d d tA C W E 0 u O W; v E L LL O N v � C_ u O X '- LL D_ OC C O O N v a) CL 0 0 o Lna) L L o 4.1 L C M 4-1 L6 C 4-1 O a) L O vOi a� N � N v 4� c O 4.1 4-1 C Q LOLL m Fa p O Q) N a) � L L3 O LLL L W O c LA O L L E o_ LL m > O j a) u c LL c E C O O U ,L"- C () M c to O L a1 Q) C O p �' Ln L to Q u d C_ C o N •- C:n 3 C i o c °_�� v C (1) Cl ro O L ro 4 v U oN a) o •- a -O C F tw n3 C a) bA c �O- Y f0 a) O O c Q aJ Ln a)ro L o Q1 CC a- 60 O _ N 0� - vi L �� z F =_ v v— R a) oz v.V) a Y a) a) (u C Ln 41 0 C o c0 L O C O •i � CDz LnO E C O v, I n w 0- a) o u a) E Ln >, v o Lnv 0 0 C. a) cn O a) w r LnQ � ro a) L Q a) U '6 L r0 O 4.' � L C Ln aJ � a1 L Ln n3 4- a) n5 N N � C) J 72 4- C O �-+ LU O C r -0 C a) C C 6 aJ i C- O i_ m O Q0- a) x a) aJ 0p0 = Ln N p L O S �O O � L O aJ L C C G7 fO L L 4-+ 6 a) 6 Q a) In a) L Vf a) a1 a--+ C a) bA aC Ln 0 C. N O -Cu ra a)a) v Q) .c I n '_ c C N rL0 a) •� aJ aJ S > a, w "' v aJ O� YO m "O O a) 4- LnN CO C V) J H vi Q C Q- p O bA C C a1 -O a) H i ::'u .— a) aJ u u O O to �..• M u CO iJ L O— a+ M C O bo C = -0C L O O N O M v > a) V m u O a, Q u NO O a) aj a) C N O O t6 �' vi O N O 0 Ln`— E C in L J Ln E uO O a) O Q Ln ua) aLa)J N L a) + L p a) u a) O >>) UO 0E O u L 6 -0 YC HCn QZLO aJ " OJ a) -6 a) Q N 4 41 V) M a) In ci 0? uq vl u d m in o C ,, o J a) L yJ o o >, Ln v Q o o v v L C Ln Z � cu O- a)a E` O i L 1 O C C Ln E OL > ,C C O O a) C C O u� •� u to 41 i in 4- a) a) O 6 L O a) a) Y Y 6 a) a) ,O O O E O v a) 4J aJ E E rB O C bq V1 V1 2 In Q .v) } v- m to O + a) I s p =_ fa Q L m O O a) O a) O O C> O> L 6 C� bA — +�' .c H 6� Ln O L O O N J '' C O� a) 0 C> by L C v Z r6 6 N 6 V C ai Z ra ra "6 to U ci O 4-1 ai C O- E r6 v p Q in E .� Q I— 4- O_ r6 -6 tJ "6 a) v= f O ,:...0 :..' u N In In ai rM d Ln �O L `; a) m t _E m m M m u /1 1uI1 {0 L u u u u a a a a a° ;Z ao N O t7 rn 0 0 co v bo a : \ $ 7 0- / f ) . ) : ) \ / / \ 2 / z g / D / \ \ x 2 \ y lu ) / \ e y E w / _ u » \ m 0 u ° / \Ln 2 2 ° a y o= 5 §/ k 2 /\ U 2 u 2 / E 5 p ' f e s = a n % \ / ° \ f \ / \ / ( $ / / \ ƒ ® \ / $ R 2 / [ / E ƒ ƒ » / n / \ ' ƒ / / / : \ \ : © / 0 Ln = e/ t R Q \ G 5$ E cD (\ \ ? o k m* — a= \ 2 _$ / 2 u> o u u ®\ ° 2 m m § \ \ / / w 2 ( % $ \ $ / / 0 7 / \ / \ / \ c \ o 2 / f a< e ©2 u] o/\\ E 2 /Ln \ \ Ln a n \ m 2 a / \ \ / c\\ m 2 5 y= 2 #® a / u � (/ 0 2 c) 2 0$ 2& / k\\ \ n 7= 7 § { c= 3 3 / / <® / \ / / u= § 5 j n 2 2 \ / / & \ \ / \ / \ E / \ S / 5 §C \ 2 ro u R \ \ § _ [ / \ / = / m g z \ & & E E / E _ / / 2 ° S g \ 2 - u s. @ 4S 2 n —\ 4- -0 2 o o m 2 _ § : 0$ y\ o® ƒ c/ S °\ / 0 7 Z ° o C\ 2 g= c 2 _ 9\§ � 2 2/ n°�/ 7§— /> V A °— e E E- e c 2\ _§ m= \ \ / % \ ) \ / ƒ k / E / \ 2 \ \ \ \ c » m e \ \ \ & & & / / \ �0 A To: Deschutes County Community Development, attn: Zechariah Heck From: Ed Keith, County Forester Re: Non -resource lands, forestland productivity Date: December 18, 2019 Background and key assumptions: I have been asked to provide an estimate of the potential revenue for the commercial timber productivity of the following areas: • Haner Park— Avg. lot size 1.19 acres • Section 36— Avg. lot size 11.65 acres • Skyline Subdivision and Skyline 1st Addition — Avg. lot size 0.73 acres • Squaw Creek Canyon Rec. Estates — Avg. lot size 2.5 acres Following is my analysis informed by the Natural Resources Conservation Service soil productivity data that includes the following assumptions: • Productivity is provided as an average cubic foot per acre per year growth potential. This averages out soil productivity across soil types, although soil types may not be evenly distributed on a given parcel. You can see the full value of soil productivity for each soil type in the attached excel spreadsheet. • Depending on standing (existing) volume there may not be trees thereof a sufficient size to harvest at present. This analysis assumes parcels are fully stocked. I also assume you would only harvest once a decade, due to slow growth rates, even though revenues are averaged out on a per year basis. • 1 assume no maintenance costs such as the need for pre -commercial thinning or other stand improvement activities (burning, road maintenance, etc.). If maintenance costs are included (currently unknown) net revenue would be decreased. • 1 assume that the landowner is optimizing growth, because soil productivity is stated in the culmination of mean annual increment (the point in time where the entire stand reaches an ideal stocking and the maximum amount of volume that a tree can add is being added yearly). It's unlikely that this is actually the case, the land is likely to be either under or overstocked, both negatively influencing growth per acre, so the estimate will be overstated. • No mortality or other loss is accounted for (i.e. theft, non -merchantability, wildlife damage, storm damage) • No other costs other than the costs, including labor and equipment, for producing the products are accounted for (i.e. taxes/assessments, road access maintenance, etc.). As a note, if just the cost of Oregon Department of Forestry fire protection is factored in (currently about $1.80 per acre per year with a minimum charge of $18.75 per lot per 61150 SE 27`'' Street Bend, Oregon 97702 (541) 322-7117 ed.keith@deschutes.org www.deschutes.org year and a surcharge of $47.50 per lot per year if the lot has an improvement) there is a net cost (i.e. loss) for owning most of these lots as forestland. Analysis: After review of the average lot size, the only likely commercial timber utilization for all areas with the possible exception of Section 36 would be selling firewood. I first considered calculating based on an assumed timber harvest, however there are several reasons not to assume a timber harvest. Smaller lot sizes would not have the volume to justify a timber harvest considering the fixed costs to move in equipment, hire a logger, and all the cost that go along with logging that require a larger scale and higher volume to account for fixed costs. Having enough volume for a timber harvest (partial cuts / thinning) on these low productivity soils may be every 40 years, providing an unpredictable and difficult to forecast revenue source due to the risk of fire, insects, disease, interest rates and market fluctuations. Finally, with current delivered log prices (approximately $325/MBF) and logging costs and haul costs (approximately $210/MBF) it is unlikely that saw logs would be much more profitable than firewood at the size of these lots, even dismissing some of the above mentioned costs. I'd estimate that if an owner were to have a larger tract (to reach an economy of scale) with similar soils they would still only be providing an average yearly profit of approximately $25.00 per acre per year after logging and hauling costs (possibly .24 MBF/year * $110/MBF net = $26.40 /acre / year). Thus, in order to provide consistent information I've made the assumption that firewood would be the most likely way to provide for revenue from forest products across all subdivisions. Using the Natural Resources Conservation Service soil survey information I compiled a listing of soil types present in each subdivision along with their associated estimated soil productivity. Based on that soil productivity I then estimated an average harvest per acre per decade, and applied gross revenue and costs based on a survey of current commercial firewood operations. I then averaged those revenues back out to a year to year income resulting in an estimated net revenue per acre per year. Results (see attached excel spreadsheet for detailed calculations): • Haner Park — Avg. lot size 1.19 acres: $10.47 / ac / yr. • Section 36 — Avg. lot size 11.65 acres: $13.78 / ac / yr. • Skyline Subdivision and Skyline 1st Addition — Avg. lot size 0.73 acres: $18.22 / ac/ yr. • Squaw Creek Canyon Rec. Estates — Avg. lot size 2.5 acres: $16.41 / ac/ yr. \ \ \! §§! ]§ !§§ §§ °.8 nw °° @a §! )§§ !! §§ !! )\ /)) )] M\ /\ §! !§! !B !! !! ! B 1ws « ! « ! ! ! « r )� - \.! \\\k\\)\k kIT !) & ®7 , !{ / & Sisters -Camp Sherman Rural Fire Protection District "Protecting Life and Property through Qualm► Sen4ce11 December 10, 2019 Zechariah Heck Deschutes County Community Development 117 NW,Lafayette Avenue Bend, Or. 97708 Zechariah, Thank you for the opportunity to provide input regarding the proposed change in zoning for Squaw Creek Canyon Recreation Estates 1't Addition to Nonprime Resource Lands. The proposed zoning would apply to approximately 18 vacant parcels within the boundaries of the Sisters -Camp Sherman Fire Protection District. The properties impacted by the proposed change in zoning are within two road miles of our fire station located at 17233 Buffalo Drive. This fire station currently provides structural and wiidiand fire response as well as emergency medical first response services to adjoining properties. The Fire District supports the change in zoning for these parcels due to the following factors: 1. Many of the surrounding properties are already developed and no new lots are being created as a result of the change In zoning. 2. The lots likely would be developed without the change in zoning. 3. Our existing facilities and personnel are capable of providing emergency services to the lots Identified. 4. There is adequate road accesvfor emergency responders to serve the lots. I would appreciate the opportunity to review the site plans for new development to Insure we will have adequate access to structures once they are developed. rely, Roger Johnsoic Fire Chief 301 South Elm Street, PO Box 1509 Sisters, Oregon 97759 Phone 541-549-0771 Fax 541-549-1343 (541) 318-0459 1 1212 SW Simpson Ave. I Bend, OR 97702 1 Fax (S41) 322-6320 December 18, 2019 Zechariah Heck Associate Planner Deschutes County Community Development Subject: Non -Resource Lands To Whom it May Concern: The Deschutes County Rural Fire Protection District #2 was requested to submit a letter for the record. Skyliner Subdivision, 111 Addition appears to be the only planned community within the Rural Fire District that meets the criteria as defined by Deschutes County as Non -Resource Lands. The elected Fire District Board members discussed this request at their December 10, 2019 regular meeting and do not have any concerns with the proposal from Deschutes County to change this area of concern to Non -Prime Resource Lands. Their decision was based upon that Deschutes County will not create any additional lots and only residences and associated structures will be allowed on the 11 vacant lots. The Fire District is also requesting that any substantial remodel or newly constructed residences or other associated structures on said property, including roads and bridges (to and from the residence) should meet the requirements of the Oregon Fire Code and Fire District #2 ordinances. In addition, all structures when required by the Fire Department Fire Marshal should meet best practices requirements to mitigate the spread of wildfire. Respectfully Submitted, 0��X-46_'U4 Gary N. Marshall Executive Director CITY OF BEND December 16, 2019 710 NW WALL STREET Zechariah Heck, Associate Planner PO BOX 431 Deschutes County Community Development Department BEND, OR 97709 (541) 388-5505 tel P.O. Box 6005 Relay Users Dial 7-1-1 Bend, OR 97708 (541) 385-6676 fax bendoregon.gov Re: Nonprime Resource Lands, Deschutes County File No. 247- 19-000265-PA MAYOR Sally Russell MAYOR PRO TEM Zechariah, Bruce Abernethy The l,lry Of Bend Growth Management i iei �t Depar$ment understand CITY COUNCILORS Deschutes County has proposed comprehensive plan amendments to Barb Campbell Gena Goodman -Campbell establish a Nonprime Resource Lands program. Specifically, the Justin Livingston amendments focus on six residential areas that were platted or conveyed Bill Moseley prior to State enabling planning legislation taking effect. The subject areas Chris Piper are; CITY MANAGER - Squaw Creek Canyon Recreational Estates 1st Addition Eric King - Skyline Subdivision and 1st Addition - Meadow Crest Acres Subdivision - Haner Park - Section 36 (Township 22, Range 10) We understand a goal of the proposed amendments is to allow single- family residences and their accessory uses as an outright permitted use. Redesignating these six areas to a Nonprime Resource Land 10 zone may lead to 110 new homes in the county on properties that are currently undeveloped. The City of Bend's Comprehensive Plan and Housing Needs Analysis adopted in 2016 does not consider these subdivisions. Bend's Housing Needs Analysis is based on factors relevant to the City of Bend, not the subdivisions previously mentioned. The subject properties are not considered in the City of Bend's 20-year housing needs analysis or buildable lands inventory due to the distance from the Urban Growth Boundary among other factors. The County's Nonprime Resource Land amendments pertaining to these subdivisions will therefore not affect the City of Bend's adopted housing policies or objectives. Sincerely, Brian Rankin Growth Management Department Director City of Bend �9MO� CITY OF "DMOND d Community Development Department 1910 2910 January 1, 2020 Mr. Zechariah Heck, Associate Planner Deschutes County Community Development Department P.O. Box 6005 Bend, OR 97708 Re: Nonprime Resource Lands, Deschutes County File No. 247-1.9-000265-PA Dear Mr. Heck, 411 SW 9th Street Redmond, OR 97756 (541)923-7721 Fax:(541) 548-0706 wwwxi.redmond.orms The city of Redmond Planning Department understands Deschutes County has proposed comprehensive plan amendments to establish a Nonprime Resource Lands program. Specifically, the amendments focus on six residential areas that were platted or conveyed prior to State enabling planning legislation taking effect. The subject areas are: - Squaw Creek Canyon Recreational Estates I" Addition - Skyline Subdivision and 1st Addition - Meadow Crest Acres Subdivision - Haner Park - Section 36 (Township 22, Range 10) We understand a goal of the proposed amendments is to allow single-family residences and their accessory uses as an outright permitted use. Redesignating these six areas to a Nonprime Resource Land 10 zone may lead to 110 new homes in the county on properties that are currently undeveloped. The subject properties are not considered in the Redmond 20-year housing needs analysis or buildable lands inventory due to the distance from the Urban Growth Boundary among other factors. The County's Nonprire Resource Land amendments will therefore not impact our housing policies or objectives. Sincerely, Deborah McMahon, Planning Manager CITY OF SISTERS PO $ox 39 - Sisters, Or 97759 ( ph: 541-549-6o22 I w-,"v.d.sisters.orms COMMUNITY DEVELOPMENT DEPARTMENT December 31, 2019 Zechariah Heck, Associate Planner Deschutes County Community Development Department P.O. Box 6005 Bend, OR 97708 Re: Nonprime Resource Lands, Deschutes County File No. 247-19-000265-PA Zechariah, The City of Sisters Community Development Department understands Deschutes County has proposed comprehensive plan amendments to establish a Nonprime Resource Lands program. Specifically, the amendments focus on six residential areas that were platted or conveyed prior to State enabling planning legislation taking effect. The subject areas are: - Squaw Creek Canyon Recreational Estates 11T Addition - Skyline Subdivision and 1st Addition - Meadow Crest Acres Subdivision - Haner Park - Section 36 (Township 22, Range 10) We understand a goal of the proposed amendments is to allow single-family residences and their accessory uses as an outright permitted use. Redesignating these six areas to a Nonprime Resource Land 10 zone may lead to 110 new homes in the county on properties that are currently undeveloped. The subject properties are not considered in the City of Sister's 20-year housing needs analysis or buildable lands inventory due to the distance from the Urban Growth Boundary among other factors. The County's Nonprime Resource Land amendments will therefore not impact our housing policies or objectives. If you have any questions, please feel free to call me at (541) 323-5219 or email me at pdavenport@ci.sisters.or.us. Sincerely, Patrick Davenport, AICP, CFM Community Development Director CITY OF LA PINE L A P 1 IV � J - - 16345 Sixth Street — PO Box 2460 O R C G O N La Pine, Oregon 97739 TEL (541) 536-1432 — FAX (541) 536-1462 www.lapineoregon.gov January 6, 2020 Zechariah Heck, Associate Planner Deschutes County Community Development Department P.O. Box 6005 Bend, OR 97708 Re: Nonprime Resource Lands, Deschutes County File No. 247-19-000265-PA Zechariah, The City of La ,Pine Community Development Department understands Deschutes County has proposed comprehensive plan amendments to establish a Nonprime Resource Lands program. Specifically, the amendments focus on six residential areas that were platted or conveyed prior to State enabling planning legislation taking effect. The subject areas are: - Squaw Creek Canyon Recreational Estates 111 Addition Skyline �ubdiv ision and i.t Addition - Meadow Crest Acres Subdivision - Haner Park - Section 36 (Township 22, Range 10) We understand a goal of the proposed amendments is to allow single-family residences and their accessory uses as an outright permitted use. Redesignating these six areas to a Nonprime Resource Land 10 zone may lead to 110 new homes in the county on properties that are currently undeveloped. The subject properties are not considered in the City of La Pine's 20-year housing needs analysis or buildable lands inventory due to the distance from the Urban Growth Boundary among other factors. The County's Nonprime Resource Land amendments will therefore not impact our housing policies or objectives. Sincerely, Melissa Bethel City Manager Below is a summary of onsite wastewater systems approved for use and limitations for onsite wastewater systems in the areas identified. Most of these areas have onsite wastewater systems serving existing development. In some cases, the records are quite old and limited. A site evaluation is required for each lot or parcel prior to any new permit. Squaw Creek Canyon Estates Within this subdivision each lot has been evaluated and issued an approved site evaluation prior to the approval of the final plat. Typically, conventional systems that include alternative systems have been required. Often in areas along the rim of the canyon the soil conditions are more limited requiring the use of alternative systems such as capping fills, sand filters or alternative treatment technologies. Skyliner Subdivision and Skyliner 1`r Addition Lot size, setbacks and proximity to Tumalo Creek can impact onsite wastewater system requirements. Most sites have been suitable for a conventional system or an alternative treatment technology. A few parcels may be too small, lack suitable area or he too near the creek to obtain npprnvnl for anv tvpe of gvstem. Meadow Crest Acres This area is served with onsite wastewater systems and typically can be approved. This development is located in an area of groundwater concern and based on detailed hydrogeological analysis needs nitrogen reducing onsite wastewater technologies to best protect water resources for future beneficial uses. Hauer Park Many older onsite wastewater systems serve the existing residential cabins this area. Conventional onsite wastewater systems serve this area. At times, setback or available area can limit onsite approvals. A Department of Environmental Quality hydrologist determined this area to be a low risk area for groundwater and water resource contamination from onsite wastewater systems; therefore, conventional systems have been approved. Section 36 (Township 22, Range 10) Conventional onsite systems serve existing development and good soils allow for conventional systems in this area. The rural nature and low density provide significant protection to groundwater resources from any potential contamination from onsite wastewater treatments systems. There are no obvious concerns with conventional onsite wastewater treatment systems serving development in this area. Conclusion: Onsite wastewater treatment systems are not a significant limitation to residential uses in these areas. 117 NW Lafayette Avenue, Bend, Oregon 97703 ( P.O. Box 6005, Bend, OR 97708-6005 �� (541) 388-6575 @ cddOd deschutes .org a wv,/w.deschutes.org/cd January 14, 2020 Deschutes County Board of Commissioners 1300 NW Wall Street Bend, OR 97703 Re: Nonprime Resource Lands Dear Chair and Commissioners, On behalf of the Central Oregon Association of REALTORS® (COAR) — representing nearly 1,800 real estate professionals in Deschutes County — thank you for the opportunity to comment on the County's Nonprime Resource Lands program. We support the proposed comprehensive plan amendments to establish eligibility criteria for designating Exclusive Farm Use or Forest Use zoned properties to Nonprime Resource (NPR) Lands defined in OAR 660-004-000S(3) as "Non -Resource Lands." Deschutes County is the fastest -growing County in Oregon — far out -pacing the U.S. average. Growth trends between the April 2010 census through July 1, 2018 show that Deschutes County grew by 21.7 percent. In comparison, the U.S. national average growth for the same time period was 6 percent.' Population estimates indicate that this pattern of rapid growth is not likely to slow in the near future. Recent projections from Portland State University's Oregon Population Forecast Project predict an increase of more than 57 percent between the recorded July 2018 population and 2043.2 Such significant growth presents myriad challenges to the County, but one of the most pressing is housing. As real estate professionals, we understand the housing challenges in our region particularly well and we are acutely aware of the impacts of growth on the local real estate market. Six months is generally considered a healthy supply of housing. As of January 2020, the current housing supply for all residential property types within Deschutes County is 4.2 months. In the more affordable segments of the market, the supply picture is even more bleak— in the $259,000 to $398,999 range, 2.7 months of inventory is available.3 A limited supply of housing also means fewer options at various — and affordable — price points; leaving large portions of the community straining under the weight of housing costs they cannot afford. The U.S. Department of Housing and Urban Development (HUD) considers those whose monthly housing costs exceed 30 percent of their monthly income to be "housing cost burdened." In Deschutes County, more than half of renter households fall into this category .a, s Ce�rt�a) Orl s.?r� ,�_.>< �t �,; R`:ill_T0RS" �2 NE 4 Street Deno uF., 97701 - Pho, ec , 41.382 6027 2843 KW lolo Dr- Ste. 200 j Bend, ()R 97703 Phone: (54I) 647-2930 www.co[w.org January 15, 2020 Deschutes County Board of Commissioners 1300 NW Wall Street Bend, OR 97703 via hand delivery re: File No. 247-19-000265-PA Amendments to comprehensive plan to change the development allowed on certain agricultural and forest lands Dear Chair Henderson and Commissioners, On behalf of Central Oregon LandWatch, thank you for the opportunity to comment on the proposed amendments. LandWatch believes the proposed amendments contravene the statewide planning goals, which provide the exclusive method for excluding certain lands from goal requirements. The County proposes to alter the uses permitted in six specific areas: Meadow Crest Acres (F I); Squaw Creek Canyon Recreational Estates (F2, EFU); Haner Park (F2); Skyline Subdivision (F2); Skyline Subdivision 1st Addition (F2); Section 36 (F2). Exhibit F to proposed Ordinance 2019-007 ("Exhibit F). The lands, which are maintained and preserved for agriculture and forestry in the County, are preserved because they meet the definition of agricultural lands and forest lands, respectively. The County fails to demonstrate that reasons justify why the state policies in Goals 3 and 4 should not apply to these six areas. ORS 197.732(2)(c)(A). The proposal misinterprets the applicable law by referring to the six areas as "committed to residential uses." Just because there are other houses in an area does not mean it is "committed to residential uses." The word "committed" is a term of art that is to be determined in a goal exception process. The County has not justified exceptions for any of the six areas. Exhibit F. Prok"'(Aing contraOregon's Naturol Environment And Working for Susiainoble Corntnunilk.,s F The proposed action is quasi-judicial, not legislative, because it will apply not to the whole county, but to the six named areas. Petersen v. Mayor & Council of City of Klamath Falls, 279 Or 249, 255-56, 566 P2d 1193, 1196 (1977) (a decision is quasi- judicial when it necessarily involves the application of general standards to a specific situation); Fasano v. Washington County, 264 Or 574, 581, 507 P2d 23, 26 (1973) (a determination of whether the permissible use of specific pieces of property should be changed is usually an exercise of judicial, not legislative, authority). Our specific comments are below. The six areas are not legally "committed; " the amendments mischaracterize the six areas by referring to the areas as "committed," which must be justified through the exceptions process of Goal 2. The amendments misinterpret and misapply the applicable law in describing the six areas as "committed to residential uses." e.g.: "[The] NPR-10 zone is available only for four subdivisions, Haner Park and Section 36 committed to residential uses because they are platted, parcelized, or partially developed and committed to residential uses." Exhibit F, 4. Emphasis added. "These six areas are committed to residential uses..." Exhibit D. Emphasis added. The term "committed" in Oregon land use law refers to lands where an irrevocably committed exception has been justified. ORS 197.732(2); Goal 2. The County has not justified an exception for any of the six areas To exclude any one of the areas from the requirements of Goals 3 or 4, the County must justify exceptions to the goals. The County appears to disagree with the goal requirements for the six areas, but the exceptions process "is not to be used to indicate that a jurisdiction disagrees with a goal." OAR 660-004-0000(2). The County cannot use the exceptions process to remove lands from EFU and forest zoning on the basis that the County disagrees with the provisions of the applicable goals: "An exception is a decision to exclude certain land from the requirements of one or more applicable statewide goals in accordance with the process specified in Goal 2, Part II, Exceptions. The documentation for an exception must be set forth Pioiecting Cenifral C?re.:Ion's Naiural Environment And Working For Sustainoble: C oninnuni,ies in a local government's comprehensive plan. Such documentation must support a conclusion that the standards for an exception have been met. The conclusion shall be based on findings of fact supported by substantial evidence in the record of the local proceeding and by a statement of reasons that explains why the proposed use not allowed by the applicable goal, or a use authorized by a statewide planning goal that cannot comply with the approval standards for that type of use, should be provided for. The exceptions process is not to be used to indicate that a jurisdiction disagrees with a goal." Id. Exceptions are "exceptional" and are not granted lightly, but only when facts and land use policy considerations justify them. Vincep v. Yamhill County, 55 Or LUBA 433, 449 (2007): "[A]ny approach that would allow exceptions to be easily approved would be inappropriate under ORS 197.732, because exceptions must be just that - exceptional." Exceptions are permitted deviations from state law and policy: the amendments misinterpret and misapply the applicable law by describing unpermitted deviations from state law and policy. The County cannot adopt amendments that state in advance what uses will be permitted on the six specific lands, e.g. permitting single faniily dweinugs and their accessory uses outright. Exhibit D. If exceptions for any of the six areas could be justified, the exceptions analysis itself would determine the uses, densities, public facilities and services, and activities permitted in each area. OAR 660-004-0018(1): "Exceptions to one goal or a portion of one goal do not relieve a jurisdiction from remaining goal requirements and do not authorize uses, densities, public facilities and services, or activities other than those recognized or justified by the applicable exception." 2. Proposalfor new uses requires six quasi-judicial decisions. The contemplated action introduces new uses to six specific areas: "Ordinance 2019-007 formally recognizes a NPR Lands Comprehensive Plan designation for six committed residential areas." Exhibit F, 5. The proposed action necessitates six quasi-judicial decisions demonstrating compliance with or justifying exceptions to the applicable goals. ORS 197.732(1)(b): f'rotectinc� Control Oregon's Nalurol Environment And Working For Sust«inoble Cornrnunities 11 "Exception" means a comprehensive plan provision, including an amendment to an acknowledged comprehensive plan, that: (A) Is applicable to specific properties or situations and does not establish a planning or zoning policy of general applicability; (B) Does not comply with some or all goal requirements applicable to the subject properties or situations; and (C) Complies with standards under subsection (2) of this section. The County's draft findings cloak the six decisions with a legislative character. Petersen v. Mayor & Council of City of Klamath Falls, 279 Or 249, 256, 566 P2d 1193, 1197 (1977). However, the threshold determination to be made for each of the six areas is whether allowing the proposed uses in an area would be consistent with the statewide planning goals, and such determinations are quasi-judicial in nature. Id. ("[W]e believe that the initial, threshold determination to be made whether the proposed annexation is consistent with the statewide planning goals is a determination which is quasi-judicial in nature.") Though the County sees the six areas as similar in the characteristics it wishes to focus on, they are six separate areas with specific qualities, land use patterns, and surrounding land use patterns. A decision is quasi-judicial in nature when it requires a determination that a particular land area does or does not comply with the goals. Strawberry Hill 4 Wheelers v. Benton Co. Bd. of Comm., 287 Or. 591, 603, 601 P.2d 769 (1979) (quasi-judicial decisions are directed at a closely circumscribed factual situation or a relatively small number of persons); Petersen, 279 Or at 255-56 (a decision is quasi- judicial when it necessarily involves the application of general standards to a specific situation); White v. Vogt, 258 Or App 130, 142, 308 P3d 356, 363 (2013) (where evidence is weighed and a decision made by applying rules to a specific factual situation, the decision is quasi-judicial). The proposal requires an exercise of judicial authority, and the propriety of the decisions must be supported with detailed, fact -based findings. The amendments are directed at a relatively small number of identifiable persons, the landowners in each area. See Neuberger v. City of Portland, 288 Or 155, 603 P2d 771, 775 (1979). Landowners entitled to notice in the six areas may not be aware that these proceedings are taking Prolectino C"'r ftal Orogons Naiurol Environment And Working For Sustoinoblra (Morrrn�t�r�iii�s 5 place, because the County has not conducted its hearings in accordance with the notice provisions of ORS 197.763. Conclusion Rural land in Deschutes County consists almost entirely of agricultural or forest land preserved and maintained for farm or forest use. There is no evidence that the six areas, or any other rural lands, were incorrectly designated in the past. An exception to the statewide planning goals, including Goals 3 or 4, will be required before new uses not contemplated by the goals may be permitted on any of the County's EFU or Forest lands. LCDC's Goal 2 and associated rules provide the exclusive process for changing the uses allowed on the County's rural lands that are now zoned for farm or forest use. Thank you for your attention to these views. Please consider this a formal request for written notification of any decision in this matter. Sincerely, �Carol Macbeth Staff Attorney Central Oregon LandWatch Prolecling Cernirar Oregon's Naftnol Environment And Working For Sustciinoble C,ornmuniNe's