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2020-324-Minutes for Meeting August 12,2020 Recorded 9/3/2020��vT E S CMG Q=; -A BOAF Recorded in Deschutes County CJ2020-324 Nancy Blankenship, County Clerk COMMISSIONERS Commissioners' .journal 09/03/2020 8:07:50 AM 1300 NW Wall Street, Bend, Oregon �JTFSCdG (541) 388-6570 q iummummmimiiuiii 2020-324 FOR RECORDING STAMP ONLY .l r k 11, oa a Wednesday, August 12, 2020 BARNES & SAWYER ROOMS VIRTUAL MEETING PLATFORM Present were Commissioners Patti Adair, Anthony DeBone, and Phil Henderson. Also present were Tom Anderson, County Administrator; David Doyle, County Counsel (via Zoom conference call) ; and Sharon Keith, Board Executive Assistant (via Zoom conference call). Attendance was limited due to Governor's Virus Orders. This meeting was audio and video recorded and can be accessed at the Deschutes County Meeting Portal website http://deschutescountyor.igm2.com/Citizens/Default.aspx CALL TO ORDER: Chair Adair called the meeting to order at 10:00 a.m. PLEDGE OF ALLEGIANCE: CITIZEN INPUT: Commissioner Adair stated that the COVID19 update will be presented this afternoon. The Board acknowledged appreciation for the community support of participating in COVID19 safety measures to protect the community. BOCC MEETING AUGUST 12, 2020 PAGE 1 OF 11 CONSENT AGENDA: Before the Board was Consideration of Approval of the Consent Agenda. HENDERSON: Move approval of Consent Agenda DEBONE: Second Commissioner Henderson commented he had a suggestion for an additional appointment for the STF Advisory Committee. VOTE: HENDERSON: Yes DEBONE: Yes ADAIR: Chair votes yes. Motion Carried 1. Consideration of Board Signature to Thank Katie Hammer of the Bicycle and Pedestrian Advisory Committee 2. Consideration of Board Signature to Thank Kat Langenderfer of the Bicycle and Pedestrian Advisory Committee 3. Consideration of Board Signature to Reappoint Wendy Holzman to the Bicycle and Pedestrian Advisory Committee 4. Consideration of Board Signature to Reappoint Ann Marland to the Bicycle and Pedestrian Advisory Committee 5. Consideration of Board Signature to Reappoint Scott Morgan to the Bicycle and Pedestrian Advisory Committee 6. Consideration of Board Signature to Reappoint David Roth to the Bicycle and Pedestrian Advisory Committee 7. Consideration of Board Signature to Appoint David Green to the Bicycle and Pedestrian Advisory Committee 8. Consideration of Board Signature to Appoint Mason Lacy to the Bicycle and Pedestrian Advisory Committee 9. Consideration of Board Signature to Appoint Rachel Zakem to the Bicycle and Pedestrian Advisory Committee 10.Consideration of Board Signature to Appoint Bill Gregoricus to the Deschutes County Special Transportation Fund (STF) Advisory Committee 11.Consideration of Board Signature to Appoint Michelle Furman to the Deschutes County Special Transportation Fund (STF) Advisory Committee 12.Consideration of Board Signature of Resolution No. 2020-052 to Increase FTE in the 2020-21 Budget BOCC MEETING AUGUST 12, 2020 PAGE 2 OF 11 13.Approval of Minutes of the July 27, 2020 BOCC Meeting 14.Approval of Minutes of the July 29, 2020 BOCC Meeting 15.Approval of Minutes of the August 3, 2020 BOCC Meeting ACTION ITEMS: 16.Consideration of Chair Signature of Document No. 2020- 538, )AG Grant Application: This item was held until later in the meeting to allow for representatives from the Sheriff's Office to be present. 17.PUBLIC HEARING: Pahlish Homes Annexation to Bend Park & Recreation District and Consideration of Board Signature of Order No. 2020-020 Approving the Annexation County Counsel Dave Doyle (via Zoom conference call) presented the public hearing procedure. Sarah Bodo from Bend Park and Recreation District presented input (via Zoom conference call). Commissioner Adair opened the public hearing, hearing no public testimony, the hearing was closed. HENDERSON: Move approval of Order No. 2020-020 DEBONE: Second VOTE: HENDERSON: Yes DEBONE: Yes ADAIR: Chair votes yes. Motion Carried 18.PUBLIC HEARING: Continued Discussion of Public Safety Issues at Harper Bridge and Consideration of Ordinance No. 2020-044, Enacting Section 9.20 of the Deschutes County Code County Counsel Dave Doyle (via Zoom conference call) and County Administrator Tom Anderson presented the backgound and history leading to the public hearing. Community Development Director Nick Lelack was BOCC MEETING AUGUST 12, 2020 PAGE 3 OF 11 present for additional information if needed as well as Senior Transportation Planner Peter Russell (via Zoom conference call). Mr. Anderson acknowledged written materials were submitted this morning by Nunzie Gould related to the history of an identified boat launch adjacent to Crosswater at Harper Bridge. Commissioner Adair opening the hearing for testimony. Tom O'Shea, Sunriver Resort, presented testimony (via Zoom conference call) on behalf of the Resort and reported on the history of the area and the condition of the road today. Mr. O'Shea supports the parking improvements that were made but feels the continuing safety issues suggest that the bridge and boat launch/access should be closed. Erik Robinson and Teresa Schneider, representatives from Crosswater Owners Association (via Zoom conference call) voiced their concern for safety. DCSO Captain Paul Garrison, (via Zoom conference call) presented a report on behalf of the Sheriffs Office regarding the safety concerns. The Sheriff's Office supports the Ordinance to allow proper enforcement tools for the department. Commissioner Henderson inquired if additional patrols could be assigned to the area over the remainder of the summer months or asking for assistance of the Sunriver Police Department. Captain Garrison acknowledged that any such staffing would necessitate paying overtime due to the department's staffing. Captain Garrison feels the period of time for increased river use this season may extend longer than the projected remaining six weeks. Commissioner Henderson supports presenting a formal request to the Sheriff's Office for additional patrols in the Harper Bridge area. Commissioner DeBone inquired if the proposed code text is the right tool. Captain Garrison stated that the code text will assist with enforcement. Commissioner DeBone acknowledged the importance of public service announcements for community awareness and the presence of a bicycle patrol officer. Tom O'Shea commented further on the need for short term solutions and long term plans to reduce traffic and pedestrian safety. He feels that parking, if any, should be on just one side of the road. BOCC MEETING AUGUST 12, 2020 PAGE 4 OF 11 James Lewis (via Zoom conference call) presented safety concerns on behalf of Sunriver Owners Association (SROA) and relayed the history of the open space requirements dedicated in 1993. Road Department Director Chris Doty (via Zoom conference call) provided input on the parking and bicycle lanes and the space constraints. Mr. Doty also commented on the options for safety for drivers and pedestrian crossing. One suggestion Mr. Doty has is a posted and enforced reduction in the speed limit through a Board Order; this would allow for an additional layer of safety. David Jameson, business owner in Sunriver (via Zoom conference call) provided input regarding the increased statistics of rental usage for people using float devices for the river. The volumes on the river are 5 times normal. Commissioner Henderson suggested the possibility of an additional parking area. County Administrator Anderson commented on the history of the issue of parking and the adjacent wetlands that are not able to be developed. Mr. Anderson commented on the increase of activity at Harper Bridge and the possibility of utilizing funding through the CARES Act for enforcement. Commissions Henderson supports a formal request to DCSO for additional enforcement. Commissioner DeBone supports additional public safety enforcement (DCSO and SRPD) and communicating concerns to the public through public service announcements. Commissioner Adair feels the County should use the BOCC meeting on Monday August 17 to consider and approve lower speed limits, additional law enforcement and public service announcements. Discussion held whether the issue is focused on Harper Bridge alone or if all bridges within the County should be included. Captain Garrison acknowledged the desire to obtain voluntary compliance and noted this Ordinance will provide law enforcement with the ability to issue a citation if that becomes necessary. The proposed code text is applicable to all bridges within unincorporated Deschutes County. Commissioners DeBone and Henderson are in favor of limiting the code prohibition to just Harper Bridge. County Counsel will revise the text to limit applicability to just Harper Bridge and return this afternoon for consideration. BOCC MEETING AUGUST 12, 2020 PAGE 5 OF 11 Commissioner Adair closed the public hearing. Commissioner Adair thanked Nunzie Gould for submitting written testimony this morning. Crosswater expressed interest in working on the long term planning for addressing the safety concerns. Item #16 as moved for discussion: Consideration of Chair Signature of Document No. 2020-S38, JAG Grant Application Sheriff Office representatives Jennifer Hill and Sgt. Zachary Steward presented the item for consideration explaining the JAG grant for public safety equipment. The deadline for the application is August 19, 2020. DEBONE: Move approval of Document No. 2020-538 HENDERSON: Second VOTE: DEBONE: Yes HENDERSON: Yes ADAIR: Chair votes yes. Motion Carried OTHER ITEMS: • Commissioner DeBone commented on ground water protection history in rural county and requested this item have a follow up discussion with the Department of Environmental Quality (DEQ) specific to ground water testing. County Administrator Anderson suggested a discussion with the Environmental Soils staff and the DEQ. The Board expressed support for Commissioner DeBone following up. Commissioner Adair reported on requested letters of support from AOC regarding CARES Act funding distribution; will continue discussion this afternoon. Commissioner Henderson commented on the letter prepared by the Property Manager regarding service providers accessing Juniper Ridge BOCC MEETING AUGUST 12, 2020 PAGE 6 OF 11 and recommended language changes to acknowledge that the City of Bend holds the responsibility. RECESS: At the time of 11:58 a.m. the Board went into recess and reconvened the meeting at 1:00 p.m. 19.COVID19 Update Dr. George Conway (via Zoom conference call) reported on the status of outbreaks at long term health care facilities. Public Health Director Nahad Sadr-Azodi and Morgan Emerson (via Zoom conference call) presented the COVID19 update (presentation attached to the record) Mr. Sadr-Azodi presented ways for the community to protect themselves, including employing efforts to avoid closed spaces, crowded places, and close person - to -person contacts. 20.Second Reading of Ordinance No. 2020-006, Historic Preservation Amendments Planning Manager Peter Gutowsky (via Zoom conference call) presented the Ordinance for the second reading. A public hearing and first reading was conducted on July 29, 2020. HENDERSON: Move approval of Ordinance No. 2020-006, second reading by title only DEBONE: Second VOTE: HENDERSON: Yes DEBONE: Yes ADAIR: Chair votes yes. Motion Carried Commissioner Adair read Ordinance No. 2020-006 by title only into the record. - BOCC MEETING AUGUST 12, 2020 PAGE 7 OF 11 HENDERSON: Move to adopt Ordinance No. 2020-006 DEBONE: Second VOTE: HENDERSON: Yes DEBONE: Yes ADAIR: Chair votes yes. Motion Carried 21.Consideration of Signature and First Reading by Title Only of Ordinance No. 2020-013, Lower Bridge Mine Rezone - Westside Community Development Department Planner Will Groves (via Zoom conference call) presented the Ordinance. DEBONE: Move approval of Ordinance No. 2020-013, first reading by title only HENDERSON: Second VOTE: DEBONE: Yes HENDERSON: Yes ADAIR: Chair votes yes. Motion Carried Commissioner Adair read Ordinance No. 2020-013, by title only into the record. 22.DELIBERATION: Thornburg Golf Course Site Plan Community Development Department Planner Will Groves (via Zoom conference call) summarized that a public hearing was conducted on June 17, 2020. The open record period has closed and the matter is now presented for deliberations. The Board conducted deliberations and made decisions/recommendations for inclusion in the findings and decision document. Mr. Groves will present a draft document to the Board on August 26, 2020. BOCC MEETING AUGUST 12, 2020 PAGE 8 OF 11 RECESS: At the time of 3:05 p.m. the Board went into recess and reconvened the meeting at 3:12 p.m. OTHER ITEMS: • County Administrator Anderson reported the discussion on the Veterans Village will be presented for further review on Monday August 17, 2020. • A joint meeting with the Fair Board is scheduled for Thursday, August 20 at the Fairgrounds. The draft agenda was reviewed. • Commissioner Henderson commented on the possibility of antigen testing with a contracted local physician and inquired why it is being postponed. Commissioner Henderson requested a conversation with the Health Services department because the Commissioners have requested this to be accomplished months ago. • Commissioner Henderson inquired on the draft Order (declaring an emergency) related to assistance for children. Commissioner DeBone recommended coordination with youth activity groups. The draft Order will be discussed on Monday. • Commissioner Adair reported further on a letter of support that has been requested by the Association of Oregon Counties regarding the CARES Act. DEBONE: Move approval of letter of support HENDERSON: Second VOTE: DEBONE: Yes HENDERSON: Yes ADAIR: Chair votes yes. Motion Carried A report was given on the status of the Facilities review committee. BOCC MEETING AUGUST 12, 2020 PAGE 9 OF 11 EXECUTIVE SESSION: At the time of 3:47 p.m. the Board went into Executive Session under ORS 192.660 (2) (d) Labor Negotiations. The Board came out of Executive Session at 4:30 p.m. and directed staff to proceed as discussed. OTHER ITEMS: • Continued discussions on the proposed County Code Chapter 9.20 Bridges. County Counsel Dave Doyle presented the revised text based on discussions held earlier in the meeting. The Board made further revisions. The Board considered safety issues. HENDERSON: Move adoption of Ordinance No. 2020-044, with amendments of elimination of paragraph B; effective date of August 13, 2020 (via emergency adoption) and sunset date of October 31, 2020. DEBONE: Second VOTE: HENDERSON: DEBONE: ADAI R: Executive Session: Yes Yes Chair votes yes. Motion Carried. At the time of 4:43 p.m. The Board went into Executive Session under ORS 192.660 (2) (a) Employment Agreement. The Board came out of Executive Session at 4:45 p.m. BOCC MEETING AUGUST 12, 2020 PAGE 10 OF 11 �, i._..t l kli, , s' MIS I Being no further items to come before the Board, the meeting was adjourned at 4:45 p.m. DATED this ) 7 Day of _ 2020 for the Deschutes County Board of Commissioners. PA YTI ADAIR, CHAIR r ANTHONY DEBONE, VICE CHAIR P I IP G. HEN S o\COMMISSIONER BOCC MEETING AUGUST 12, 2020 PAGE 11 OF 11 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 - www.deschutes.orZ BOCC MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 AM, WEDNESDAY, AUGUST 12, 2020 Barnes Sawyer Rooms - Deschutes Services Center - 1300 NW Wall Street - Bend This meeting is open to the public, usually streamed live online and video recorded. To watch it online, visit www. deschutes. org/meetings. Pursuant to ORS 192.640, this agenda includes a list of the main topics that are anticipated to be considered or discussed. This notice does not limit the Boards ability to address other topics. Item start times are estimated and subject to change without notice. CALL TO ORDER MEETING FORMAT In response to the COVID-19 public health emergency, Oregon Governor Kate Brown issued Executive Order 20-16 directing government entities to utilize virtual meetings whenever possible and to take necessary measures to facilitate public participation in these virtual meetings. Beginning on May 4, 2020, meetings and hearings of the Deschutes County Board of Commissioners will be conducted in a virtual format. Attendance/Participation options include: Live Stream Video: Members of the public may still view the BOCC meetings/hearings in real time via the Public Meeting Portal at www.deschutes.org/meetings. Citizen Input: Citizen Input is invited in order to provide the public with an opportunity to comment on any meeting topic that is not on the current agenda. Citizen Input is provided by submitting an email to: citizen input(@deschutes.org or by leaving a voice message at 541-385-1734. Citizen input received before the start of the meeting will be included in the meeting record. Zoom Meeting Information: Staff and citizens that are presenting agenda items to the Board for consideration or who are planning to testify in a scheduled public hearing may participate via Zoom meeting. The Zoom meeting id and password will be included in either the public hearing materials or through a meeting invite once your agenda item has been included on the agenda. Upon entering the Zoom meeting, you will automatically be placed on hold and in the waiting room. Once you are ready to Board of Commissioners BOCC Meeting Agenda Wednesday, August 12, 2020 Page 1 of 4 present your agenda item, you will be unmuted and placed in the spotlight for your presentation. If you are providing testimony during a hearing, you will be placed in the waiting room until the time of testimony, staff will announce your name and unmute your connection to be invited for testimony. Detailed instructions will be included in the public hearing materials and will be announced at the outset of the public hearing. PLEDGE OF ALLEGIANCE CITIZEN INPUT (for items not on this Agenda) [Note: Because COVID-19 restrictions may limit or preclude in person attendance, citizen input comments may be emailed to citizeninput@deschutes.org or you may leave a brief voicemail at 541.385.1734. To be timely, citizen input must be received by 9:00am on the day of the meeting.] CONSENT AGENDA 1. Consideration of Board Signature to Thank Katie Hammer of the Bicycle and Pedestrian Advisory Committee 2. Consideration of Board Signature to Thank Kat Langenderfer of the Bicycle and Pedestrian Advisory Committee 3. Consideration of Board Signature to Reappoint Wendy Holzman to the Bicycle and Pedestrian Advisory Committee 4. Consideration of Board Signature to Reappoint Ann Marland to the Bicycle and Pedestrian Advisory Committee 5. Consideration of Board Signature to Reappoint Scott Morgan to the Bicycle and Pedestrian Advisory Committee 6. Consideration of Board Signature to Reappoint David Roth to the Bicycle and Pedestrian Advisory Committee 7. Consideration of Board Signature to Appoint David Green to the Bicycle and Pedestrian Advisory Committee 8. Consideration of Board Signature to Appoint Mason Lacy n to the Bicycle and Pedestrian Advisory Committee Board of Commissioners BOCC Meeting Agenda Wednesday, August 12, 2020 Page 2 of 4 9. Consideration of Board Signature to Appoint Rachel Zakem to the Bicycle and Pedestrian Advisory Committee 10. Consideration of Board Signature to Appoint Bill Gregoricus to the Deschutes County Special Transportation Fund (STF) Advisory Committee 11.Consideration of Board Signature to Appoint Michelle Furman to the Deschutes County Special Transportation Fund (STF) Advisory Committee 12.Consideration of Board Signature of Resolution No. 2020-052 to Increase FTE in the 2020-21 Budget 13.Approval of Minutes of the July 27 2020 BOCC Meeting 14.Approal of Minutes of the July 29 2020 BOCC Meeting 15.Approval of Minutes of the August 3 2020 BOCC Meeting ACTION ITEMS 16. 10:05 AM Consideration of Chair Signature of Document No. 2020-538, JAG Grant Application -Jennifer Hill, 17. 10:15 AM PUBLIC HEARING: Pahlisch Homes Annexation to Bend Park & Recreation District and Consideration of Board Signature of Order No. 2020-020 Approving the Annexation - David Doyle, Legal Counsel 18. 10:25 AM PUBLIC HEARING: Continued Discussion of Public Safety Issues at Harper Bridge and Consideration of Ordinance No. 2020-044, Enacting Section 9.20 of the Deschutes County Code - David Doyle, Legal Counsel LUNCH RECESS 19. 1:00 PM COVID19 Update 20. 1:20 PM Second Reading of Ordinance No. 2020-006, Historic Preservation Amendments -Nick Lelack, Community Development Director 21. 1:25 PM Consideration of Signature and First Reading by Title Only of Ordinance No. 2020-013 - Lower Bridge Mine Rezone, Westside - William Groves, Senior Planner Board of Commissioners BOCC Meeting Agenda Wednesday, August 12, 2020 Page 3 of 4 22. 1:35 PM DELIBERATION - Thornburg Golf Course Site Plan - William Groves, Senior Planner OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. EXECUTIVE SESSION At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations, ORS 192.660(2)(b), personnel issues, or other executive session categories. Executive sessions are closed to the public, however, with few exceptions and under specific guidelines, are open to the media. Executive Session under ORS 192.660 (2) (d) Labor Negotiations ADJOURN To watch this meeting on line, go to: www.deschutes.org/meetings Please note that the video will not show up until recording begins. You can also view past meetings on video by selecting the date shown on the website calendar. Deschutes County encourages persons with disabilities to participate in all programs and activities. This event/location is accessible to people with disabilities. If you need accommodations to make participation possible, please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.org/meetin2calendar (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572.) Board of Commissioners BOCC Meeting Agenda Wednesday, August 12, 2020 Page 4 of 4 Es �oG 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 August 12, 2020 DATE: July 29, 2020 FROM: David Doyle, Legal, 541-388-6625 TITLE OF AGENDA ITEM: PUBLIC HEARING: Continued Discussion of Public Safety Issues at Harper Bridge and Consideration of Ordinance No. 2020-044, Enacting Section 9.20 of the Deschutes County Code BACKGROUND AND POLICY IMPLICATIONS: Dangerous and inappropriate uses at and on county bridges have increased recently; safety is compromised often necessitating intervention by law enforcement. Members of the local community, including the Crosswater Homeowners Association, have expressed concerns related to public safety at Harper Bridge, including individuals jumping from the bridge, but also related to pedestrian safety, illegal parking and trespassing on private property, and would like an opportunity to address the Commissioners. Staff will be prepared to answer questions, and pursue courses of action directed by the Board. FISCAL IMPLICATIONS: No direct impacts RECOMMENDATION & ACTION REQUESTED: Board approval and adoption of Ordinance No. 2020-044 ATTENDANCE: Legal Counsel, Road Department, Sheriff's Office, Administration PUBLIC NOTICE: The Board of County Commissioners will conduct a public hearing at 10:OOam on August 12, 2020, to consider adoption of Ordinance 2020-044, which will prohibit jumping off of county bridges, congregating on county bridges outside of pedestrian areas, parking on county bridges outside of designated parking areas, and fishing from county bridges outside of designated areas. Attendance at the hearing will be via Zoom conferencing. Access instructions can be obtained by contacting Sharon Keith at sharon.lceith(deschutes.org You may also submit written comments at any time prior to the hearing on August 12, 2020, by emailing your comments to sharon.keith(@deschutes.org Sharon Keith From: nunzie@pacifier.com Sent: Wednesday, August 12, 2020 9:01 AM To: Board; citizeninput Subject: agenda item 18 Harper Bridge agenda item Text Amendment Aug 12, 2020 Attachments: Crosswater MC946.pdf; Crosswater TP93817.pdf, Crosswater easement.pdf [EXTERNAL EMAIL] Please enter the attached documents into the proposed Text Amendment regarding Harper Bridge in your today Aug 12, 2020 BOCC public meeting agenda item 18. In particular when Crosswater was approved, there is reference to a contribution of monies to facilitate a public boat launch at the Deschutes River and the awareness that Harper Bridge was such an access. Since Harper Bridge is still a public crossing, I am wondering whether the County has obtained a public boat launch near the Harper Bridge where our public can access the Deschutes River if the proposed text amendment is being considered. As Deschutes County proposes to be close to 500'000 residents by Year 2068 I think we need to keep focus on how recreation is facilitated for all of our residents as our population increases and especially now in the face of the role of outdoor recreation due to these novel times. The Deschutes River is deemed Recreational River downstream of Harper Bridge and justifiably, our public has a right to swim, float, fish in this stretch of the River; similarly the pubic has a right to partake in the scenic enjoyment of the Scenic Deschutes River upstream of Harper Bridge and to float, fish al -Lid partake in the scenery of this State Scenic waterway. Deschutes County is a partner to this State Waterway program as is shown by the conservation easement in the attached. If the bridge is a methodology for such public scenic enjoyment of the River, view shed, fishing, etc, then I frankly do not understand where the proposed standard of "shutting off the bridge" to the public is the appropriate template to use. Think of the other bridge crossings where this methodology could be used to prevent the public from their legitimate enjoyment of the Deschutes River, Deschutes County is feted for it's outdoor recreation and livability; please consider the fallout onto policing that the proposed text amendment will cause. I think our County has a responsibility to provide the public boat launch access for the amazing recreational asset and if the issues identified as safety issues at the bridge are not then alleviated, then perhaps consider the text amendment. Thank you Nunzie Gould 0 CommunityDevelopment Department iAk� Administration Bldg., 1130 N.W. Harriman, Bend, Oregon 97701 _._,,.._ .... (503) 388-6575 Planning Division Building Safety Division FINDINGS AND DECISION Environmental Health Division FILE NUMBER: MC-94-6 AUG 19,94 14 APPLICANT/ Crosswater Limited Partnership PROPERTY OWNER: c/o Dan Young ." P.O. Box 3589 Bend, Oregon 97707 REQUEST: A Modification of Condition of Tentative Plat Approval (TP-93-817) regarding a boat launch facility. STAFF CONTACT: David B. Leslie, Associate Planner An order adopted by the Board of County Commissioners on April 15, 1980 established a provision for modifications of conditions for previously approved land use permits where such modification does not require a re-examination of the original application in its entirety. I. FINDINGS OF FACT: 1. The applicant is owner of certain real property identi- fied as tax lots 1200 and 1300 in Township 20 South, Range 11 East, W.M., Deschutes County, Oregon. 2. The applicant received approval of a Tentative Plat, County File No. TP-93-817, allowing for the subdivision of land in accordance with a master plan previously ap- proved by Deschutes County. The developer is required to meet specified conditions of approval in this land use decision. Condition No. 23 of this approval states: MC-94-6 Page 1 "Developer shall dedicate land for a public boat launch facility in the Deschutes River near Harper Bridge prior to recording the final plat for phase 2 . " Quality Services Performed with Pride 3. The applicant has submitted this application to modify condition no. 23 to extend the time for completing the requirement of,dedicating land for a boat launch facili- ty. In addition, the applicant proposes to further modify this condition by requesting that the applicant be allowed to provide $5,000 towards improvement of a boat launch in the Deschutes River Recreation Homesite subdivision in lieu of the dedication of land at Harper Bridge. 4. The Planning Division received responses from Oregon State Parks, Deschutes County Public Works and the Bend Ranger District of the Deschutes National Forest in response to a notice regarding this application. State Parks would like to meet with the applicant and others to discuss the proposal. Public Works raised several questions regarding the adequacy of the proposed fund- ing, whether sufficient space remains at Harper Bridge to retain existing access and whether homeowners and ODFW were in favor of the proposed modification. The Forest Service indicated support for the funding proposal and recommended that the existing undeveloped access be left intact at least until a suitable replacement has been secured. In addition, a petition was submitted by property owners in opposition to offer by the applicant to provide $5,000 in lieu of dedication of land. The agency responses and the petition are on file with the Planning Division with this application. II. STAFF FIN -DING 1. The applicant has indicated that since the time of tentative plat approval the County has initiated the process of replacing Harper Bridge. The replacement bridge will be wider than the existing bridge, therefore the area which the applicant had planned to dedicate for a public boat launch facility is no longer available. 2. The applicant has indicated that the Oregon Department of Fish and Wildlife has a program to improve an exist- ing boat launch located approximately 1.5 miles upstream in the DRRH subdivision. The applicant has offered to provide $5,000 for improvement of this facility. However, this facility is not open to the public at this time. Planning staff has been informed by private landowners in the subdivision that it is not likely that the homeowners would agree to open the facility to public use. Without their concurrence it will not be feasible to use this facility in lieu of a boat launch at another location near Harper Bridge. 3. A firm alternative location for a boat launch facility has not been identified by the applicant. Therefore, MC-94-6 Page 2 it is premature for the county to evaluate the applicant's proposal with respect to a dollar amount the applicant might provide to another agency such as ODFW in lieu of land dedication. In general, however, it appears that the suggested amount of $5,000 would be insufficient to satisfy the condition of approval given present land values in the river corridor. 4. The condition of approval requires the applicant to complete dedication prior to platting the second phase of lots. At the time of this approval the applicant and planning staff were not aware that Harper Bridge would be replaced with a wider bridge in the near future. The replacement bridge will not readily accomodate a formal public launch facility in the immediate area. (Planning staff notes that, based on direct conversations with agency staff on various occasions, there are safety concerns which are recognized by State Parks, Forest Service, Division of State Lands and ODFW which indicate that the long term use of the existing access point on the south side of Harper Bridge is not appropriate for a formally developed launch facility. However, the applicant has agreed to allow the informal use which presently occurs on the south side of the east end of the bridge to continue. This application does not affect the continued public use of this area. 5. The applicant has requested additional time in order to meet the obligations imposed by condition no. 23 by allowing this condition to be met prior to the platting of the phase 3 plat. Planning staff has been informed that the applicant anticipates submitting this plat within approximately one (1) year. The granting of additional time to meet conditions of approval is generally allowed by Deschutes County since there would otherwise be no public benefit gained if the condition cannot otherwise be met. The final plat was recorded on July 21, 1994 with the County Clerk. Planning staff believes it is appropriate to approve the request for additional time for the applicant to meet the requirement of condition #23. The applicant will be required to meet this condition before being allowed to submit a plat to create additional residential lots. The applicant believes that the phase 3 plat will be submitted in approximately one year but there is no requirement to submit within this time frame. A final performance date of September 1, 1995, will be included with this decision in case the phase 3 plat is delayed due to circumstances not anticipated by the applicant. CONCLIISION: Based on the applicant's Burden of Proof Statement, the MC-94-6 Page 3 findings above, and the applicant's \ability to meet the conditions below, the request to modify condition #23 of County File No. TP-93-817 is granted. DECISION• APPROVAL CONDITIONS OF APPROVAL: 1. Condition #23 of TP-93-817 is modified to read as follows: "Developer shall dedicate land for a public boat launch facility on the Deschutes River near Harper Bridge prior to recording the final plat for phase 3 or no later than September 1, 1995, whichever is sooner." 2. All other conditions of approval for TP-93-817 shall be met. This decision becomes final ten (10) days after the date mailed, unless appealed by a party of interest. DESCHUTES COUNTY PLANNING DIVISION 'Piw� L�tom.. Written by: David B. Le 1 e, Associate Planner Reviewed by: Kevin M. arrison, Principal Planner DBL/mjz cc: Jan Houck, State Parks Ted Wise, ODFW Mollie Chaudet, Forest Service Dick Johnson, Public Works James Deal for DRRH Homeowners MC-94-6 Page 4 E S c0 o 4. AAA A"A' A Community Development Department Administration Bldg. / 1130 N.W. Harriman / Bend, Oregon 97701 FINDINGS AND DECISION FILE NUMBERS: TP-93-817 1503) 388-6575 Planning Division Building Safety Division Environmental Health Division APPLICANT/ Sunriver Resort Limited Partnership AN,\V, PROPERTY OWNER: P.O. Box 3589 Sunriver, OR 97707 b OCT1993 Attn: Dan Young r- MANED DESCHUTES SURVEYOR: David K. Bateman COUNTY David Evans & Associates, Inc. 709 N.W. Wall Street, Suite 102 1F0£6Z0Z1 Bend, OR 97701 REQUEST: An application for a Tentative Plat for 79 lots in Phases 2 through 4 of the Two - Rivers at Sunriver development on property with an approved master plan for 94 single family lots. REVIEWER: David B. Leslie, Associate Planner BURDEN OF PROOF: The applicant must establish that the proposed tentative plat conforms with Title 17 and Chapters 18.16, 18.40, 18.80, 18.84, 18.96 and 18.124 of the Deschutes County Code. The applicant must also demonstrate that the application conforms to the approved master plan for the development of this property, Title 22 of the Deschutes County Code and PL-20, the Deschutes County Year 2000 Comprehensive Plan. RELIMINARY FINDINGS OF FACT 1. LOCATION: The subject property is located southwest of the intersection of Spring River Road and South Century Drive, at the confluence of the Deschutes and Little Deschutes Rivers. The property is described on County Assessor's map #20-11, as tax lots #1200 and 1300. 2. ZONE AND PLAN DESIGNATIONS: The property is zoned Forest Use, F-2 (268 acres), EFU/LaPine Subzone (53 TP-93-817 Page 1 acres), and Flood Plain, FP (287 acres). In addition two overlay zones exist on the property, Airport -Height Combining (A-H), and Landscape Management (LM). The property is designated for Agriculture and Forest by the Deschutes County Year 2000 Comprehensive Plan. The Resource Element of the plan designates the Little Deschutes/Deschutes River confluence as a 400-acre "Area of Special Interest" due to important scenic, marshland and bird resource values. In 1988, the subject property was determined to be one legal parcel (County file no. LR-88-99). 3. SITE DESCRIPTION: The subject property includes approximately 605 acres of meadow and forest land situated immediately south of Spring River Road and the existing Sunriver Resort, and continuing south to the Vandevert Ranch subdivision. The property is bordered,} on the east by South Century Drive and on the west by, the Deschutes River, several individual private lots aiid a small number of platted lots in the Oregon Water Wonderland subdivision. The property.includes a small portion of the Deschutes River near Harper Bridge, land lying on both sides of the Little Deschutes River, and includes the confluence area of both rivers. Forested areas are dominated by a lodgepole pine/bitterbrush association with grasses and shrubs typical of that association. Pine beetle infestation has impacted the forest, with many dead trees removed. The open meadows grade from dry meadow to wet meadow depending on the presence of subsurface moisture. A number of old oxbows and meanders from the Little Deschutes remain as wetlands. The meadow areas have been intensively grazed on an annual basis for at least a decade until several years ago, resulting in a degradation of the meadow and wetlands, as well as streambank erosion. Recovery of plant communities and a decrease in streambank erosion has occurred since grazing practices were stopped. The location of the property adjacent to the two rivers and the presence of forest, meadow and wetland ecosystems result in a range of habitat diversity for a variety of animals and plants. The property contains several items of cultural interest, including a pioneer cemetery within the meadow, area,. possibly a portion of the Elliot Wagon Trail � =d _ assumed archeological sites. 4. PRIOR LAND USE APPROVALS: In May, 1990, the applicant received approval for a two conditional use permits and a master plan for a destination resort and two 18-hole golf courses on the property. (See Findings and TP-93-817 Page 2 Decision for CU-90-36, CU-90-37 and Master Plan 90-01.) [In October, 1991, the applicant received approval from the Hearings Officer for a tentative plat for 94 homesites and approval of a site plan for two 18-hole golf courses (TP-91-751, SP-91-61). An extension was granted in November, 1992, to allow additional time for the applicant to complete the conditions of approval for the tentative plat and site plan (E-92-46).) In March, 1993, the subject property was approved for a revised tentative plat for 15 lots as phase 1 of the previously approved 94-lot subdivision and a revised site plan for only one 18-hole golf course. (TP-92-795 and SP-92-173). 5. REQUEST: Pursuant to approved conditional use permits and master plan, the applicant is now requesting approval of phases 2 through 4 for the remaining 79 residential lots. The name proposed for the subdivision is "Two Rivers at Sunriver" (formerly Meadowland Estates). The lots will be accessed from South Century Drive by a private road network that leads both to lots the north and lots located across the Little Deschutes to the west. Emergency access will be provided to the north to Spring River Road and to the west to public roads in the Oregon Water Wonderland subdivision. According to the tentative map submitted by the applicant, sewer and water facilities will be provided by Sunriver Utility Company. Electricity will be provided by Midstate Electric Cooperative, Inc., and LaPine Rural Fire District will provide fire protection. U.S. West will serve the area for telephone service and natural gas will be provided by Cascade Natural Gas Corporation. The subject property lies within the Bend-LaPine School District. The applicant submitted a tentative map and a written burden of proof statement with this application. 6. AGENCY RESPONSE: The Planning Division received comments from various county departments and other agencies, incorporated herein by this reference, in response to a notice regarding this tentative plat application. A summary of agency responses and their recommendations follows. A. The County Public Works Department recommends the following conditions: 1. The plat is to be surveyed by a licensed surveyor. TP-93-817 Page 3 2. All property corners and public rights -of -way are to be located and monumented. 3. An access permit must be obtained from Public Works for any new access to either South Century Drive or Spring River Road. 4. A turnaround must be provided on the property so that vehicles do not have to back out onto either South Century Drive or Spring River Road. 5. An engineered drainage plan is required, showing how surface water will be handled on the site. 6. The applicant is to install and maintain all landscaping so as to not interfere with the required sight distance at the intersection of South Century Drive and Spring River Roads and when any private road intersects either County Road. 7. A bicycle rack shall be installed with space for 10 to 20 bicycles at the club house. 8. A recycling area shall be provided adjacent to the trash container at the club house. 9. A sign plan must be submitted with signs installed by he developer to meet MUTCD and County standards. Where private streets are used the signs shall be maintained by the developer or homeowners association. 10. The applicant is to place money in a trust account with the County for the improvement of South Century Drive and Spring River Road as per the existing agreement with the County ($95,000.) or pave both roads to 14 feet from centerline in front of their property. 11. Private internal roads must be improved to the standards required for private roads in Title 17, Subdivisions, of the County Code. 12. A homeowners association or local road improvement district is to be formed to maintain all private roads. 13. The following services shall be provided to each lot by a developer or ensured through a development agreement prior to signing of the plat by the Public Works Director: Electrical power, telephone, acceptable road for ingress TP-93-817 Page 4 and egress, public sewer and an acceptable public or private community water system. 14. Emergency access shall be approved by the Fire Marshall. 15. Roads, bridges and any other structures are not to be constructed so as to block the flow of water over the site. B. The County Environmental Health Division indicates that development on this property will be connected to the Sunriver resort community sewer system. C. The Oregon Department of Fish and Wildlife indicates the following: The ODFW did not submit additional comments in writing. Based on a phone call with planning staff, the ODFW staff indicated that their recommendations for the most recent tentative plat would be applicable to this application. ODFW recommends that: a. boundary fencing of the property not be constructed to allow for deer movement in the area. b. public hunting opportunities along the Deschutes River be maintained at this time. C. private landowners and potential landowners be made aware of the potential damage from wildlife (deer, elk, beaver, porcupine and waterfowl) on their property and that they will have to accept the responsibility of coping with it. d. a conservation easement to protect and enhance wildlife habitat as well as providing fish and wildlife related recreational opportunities for the public be a condition of approval. D. The Oregon Health Division indicates: Water source must be approved and certified by Oregon Water Resources Department. Construction of Distribution system and source of development must be approved by Oregon Health Division. E. The Watermaster District 11 Office states the applicant will need to contact the Oregon Water Resources Department to make sure that all water rights and water permits are taken care of before TP-93-817 Page 5 any water is used on this property. F. The Deschutes County Property Address Coordinator indicates that all names for new roads will need to be approved by the Property Address Coordinator. The existing address for this parcel is subject to change. The subdivision name, Two Rivers at Sunriver, is an acceptable name. G. The Deschutes County Building Division had no specific comments. H. The Deschutes County Assessor states that Tax Lot #1200 includes 12.05 acres and has not been on farm tax deferral, however tax lots 11300 & 1302 have been on farm tax deferral. The disqualification amount for T.L. #1302 is $8,076.79. The amount for T.L. #1300, code 1-68, is $1,054.22 and for code 1-66 the amount is $106,120.65. I. The Sunriver Owners Association, U.S. Forest Service and Sunriver Fire Department did not submit a response. 7. No letters from private property owners were submitted to the Planning Division regarding this application. 8. There are no surface mines adjacent to the subject property. I. CRITERIA AND CONCLUSIONARX FINDINGSz The following provisions of local law apply to review of this tentative plat. 1. The following sections of Title 17 of the Deschutes County Code set forth the requirements for a tentative plat for a subdivision: A. Section 17.16.050, Master Development Plan, and Section 17.16.060, Master Development Plan - Approval, require that an overall master development plan be submitted for all developments affecting land under the same ownership for which phased development is contemplated and that any tentative plan submitted shall conform to the master plan unless otherwise approved by the county. B. Section 17.16.100, Required Findings for Approval, requires that a tentative plat for a proposed subdivision satisfies the intent and requirements of Titles 17 and 18 of the code and be in compliance with the comprehensive plan. Findings shall include, but not be limited to, the TP-93-817 Page 6 following: 1) The subdivision contributes to orderly development and land use patterns in the area, and provides for the preservation of natural features and resources such as streams, lakes, natural vegetation, special terrain features, agricultural and forest lands and other natural resources. 2) The subdivision will not create excessive demand on public facilities and services required to serve the development. 3) The tentative plan for the proposed subdivision meets the requirements of Oregon Revised Statutes Section 92.090. 4) For subdivisions ... within a Surface Mining Impact Area (SMIA) zone ... the subdivision creates lots on which ... uses can be sited consistent with the requirements of Chapter 18.56 of Title 18... " 5) The subdivision name has been approved by the County Surveyor. C. Chapter 17.24, Final Plat, requires that a final plat for a subdivision meet the standards and criteria set forth in this chapter prior to final approval of the plat by the county and recording of the plat by the applicant with the county clerk. D. Section 17.36.210 requires that each lot meet certain solar performance requirements or that the developer submit information demonstrating that solar uses are not feasible. E. Section 17.44.020, Development Outside an Urban Growth Boundary, requires that a subdivider dedicate a certain area of land for park purposes or provide a fee in lieu of park land dedication. 2. The following chapters and sections of Title 18 of the Deschutes County Code set forth additional requirements. A. In Chapter 18.116, Supplementary Provisions, Section 18.116.220 requires that a property owner convey a conservation easement to the county as a condition of approval for a land use approval involving property adjacent to the Deschutes and Little Deschutes Rivers. TP-93-817 Page 7 B. In Chapter 128, Conditional Uses, Section 18.128.040(W) requires County approval for fill or removal activity within the bed and banks (as defined in this Title) or in a wetland. 3. The following sections of Title 18 of the Deschutes County Code set forth the requirements for development in the zone specified: A. In Chapter 18.96, Flood Plain Zone, Section 18.96.040 requires that excavation, grading and fill and removal in the bed and banks of a river or in a wetland meet conditional use standards. Section 18.96.060, Limitations on Conditional Uses, requires that no subdivision shall be allowed which creates the potential for additional residential dwellings in the flood plain. Section 18.96.100, Stream Setback, requires that all structures, buildings or similar permanent fixtures shall be set back from the ordinary high water mark along all streams a minimum of 100 feet measured at right angles from the ordinary high water mark. B. In Chapter 18.16, Exclusive Farm Use Zone, Section 18.16.080, Stream Setbacks, requires that all structures be set back from the ordinary high water mark along all streams a minimum of 100 feet measured at right angles to the ordinary high water mark. C. In Chapter 18.40, Forest Uses (F-2), Section 18.40.110, Stream Setbacks, requires that all structures be set back from the ordinary high water mark along all streams a minimum of 100 feet measured at right angles to the ordinary high water mark. D. In Chapter 18.84, Landscape Management Combining Zone, Section 18.84.080, Design Review Standards, requires that specified standards be used to evaluate new structures or substantial alterations of a structure requiring a building permit. E. In Chapter 18.80, Airport Height Combining Zone, Section 18.80.050, Use Limitations, requires that no use shall be allowed that could reasonably be expected to endanger the safety of persons lb aircraft passing over the land or persons or property on the ground. Section 18.80.060, Dimensional Standards, requires that no structure shall exceed 35 feet in height in one of the zones specified in this Section. 4. PL-20, the Deschutes County Year 2000 Comprehensive Plan. TP-93-817 Page 8 5. Title 22 of the Deschutes County Code, Procedures Ordinance. STAFF FINDINGS: 1. Conformance with Sections 17.16.050 and 17.16.060. Master Plan #90-01 approved by the county contemplates development of the proposed subdivision for an additional 79 residential lots. The lots proposed are nearly identical to the areas (called "pods") previously approved for development. Exceptions include a small amount of acreage being avoided as a buffer around an osprey nest and the relocation of several lots found to be within the 100-year floodplain as a result of site -specific surveying. The total amount of acreage affected by these changes is approximately 6.5 acres. These changes are required in order for the developer to protect resource values and meet county standards which prohibit the creation of new lots in the 100-year floodplain. These alterations fit within the overall design layout approved in the master plan and do not constitute a modification to the plan; therefore, an application to modify the master plan is not required. The townhouse/condominium site plans are not part of this phase of development, but the area for this development will be set aside as Tracts F and E as the lots proposed in this application are platted. The developer will need to continue to ensure that future phases of the project conform to the master plan or submit an application for a revision to the master plan. 2. Conformance with 17.16.100. A. The proposed subdivision contributes to orderly development and land use patterns in the area. The tentative plat for 79 lots includes 36 lots in Phase 2, 36 lots in Phase 3 and 7 lots in Phase 4. All residential lots will be located outside of the 100-year floodplain. The wetlands on this property have been delineated in a report("Wetland Determination") prepared in August, 1990 by David Evans & Associates.. All residential lots and the internal roads to access these lots will be located outside of delineated wetlands. The lots will all be located greater than 100 feet from the Little Deschutes and Deschutes Rivers, therefore all structures constructed on these lots will meet the required stream setback of 100 feet. The lots are of a sufficient width and depth for dwellings to meet front, side and rear yard setback requirements. TP-93-817 Page 9 The wetlands and areas with riparian vegetation adjacent to the Deschutes and Little Deschutes Rivers will be placed in a conservation easement to maintain natural resources within that area. Public access on part of the easement area will be expressly permitted, however sensitive wetland and steep bank areas are to be excluded. The public will be able to continue floating the Little Deschutes River for recreation and fishing purposes. The exact form (language and map) of the the conservation easement document must be agreed to by the county and the applicant prior to recording the final plat for any of the residential lots. B. The proposed subdivision will not create an excessive demand on the public facilities and services required to serve the development. Each lot will be served by necessary utilities from agencies and entities which already provide these services to other residential properties nearby. The applicant has agreed to share in the cost of improving South Century Drive and Spring River Road. on -site roads will be constructed and maintained as private roads by the developer. These roads will be at least 22 feet in width. A fully pressurized fire line will be constructed with hydrants at various locations above ground. The applicant has proposed a pedestrian/bicycle plan throughout various portions of the subject property. The pathway indicated on the submitted map includes several different designations, including bike, pedestrian, maintenance and combinations of these three types of uses. The intent of the pedestrian/bicycle plan is to provide an alternative mode of transportation to the automobile in this development in addition to providing a recreation amenity. The precise location of the pathways is not entirely clear on the submitted plan, however. The width and surfacing have also not been indicated. The bicycle/pedestrian plan will need to be further refined and resubmitted with this type of additional information for staff review and approval before the plat for phase 2 is recorded. Sewage will be treated at a treatment facility currently serving the Sunriver Resort to the north. Domestic water will be provided by Sunriver Utility Company. Phone, electric, gas and cable services are available from the various utility companies listed above. The applicant will be required to submit letters from each of the utility companies indicating their ability and intent to serve the subject property unless services are TP-93-817 Page 10 available to each lot. In addition, the final plat for each lot or a development agreement has been completed by the developer with the County. C. The proposed subdivision will be approved with the necessary conditions to meet the requirements of Oregon Revised Statutes Section 92.090. The Deschutes County Property Address Coordinator has indicated that the proposed subdivision name, Two Rivers, is acceptable. The private internal road alignment shown on the tentative plat is consistent with the tentative plat previously approved for 15 lots in Phase 1. Road names will need to be approved by the Address Coordinator prior to recording the final plats. The conclusionary findings in other sections of this decision demonstrate that the tentative plan complies with applicable zoning ordinances and regulations of Deschutes County. The proposed lots meet the ordinance requirements for minimum average width, lot frontage and maximum lot size. D. The proposed subdivision is not located within a Surface Mining Impact Area zone and, therefore, there is no need to address the siting requirements of Chapter 18.56 of Title 18. E. The subdivision name will need to be approved by the County Surveyor before the final plat for the first phase of lots is submitted for signature by the Board of County Commissioners. It is the developer's responsibility to select a name that the surveyor can approve. (The proposed name has been found to be acceptable by the County's Property Address Coordinator.) 3. Conformance with Section 17.24.060. A. The final plat for the subdivision must conform to all requirements of section 17.24.060 of Title 17. The final plat will be checked to verify that all required information outlined in this section is included on the plat. A recent change in this section for the developer to be aware of is the requirement that the location, width and type of all bicycle and pedestrian facilitie, Including access corridors, be shown on the final ptit� (item B. In addition to those items required in Section 17.24.060, the following information will need to be indicated on the final plat: 1. The area of wetland and riparian land located TP-93-817 Page 11 landward of the ordinary high water mark of the Little Deschutes and Deschutes Rivers to be dedicated to Deschutes County as a conservation easement with limited public access where any such area exists on these phases of development. 2. A statement that all structures, buildings or similar permanent fixtures (not including bridges) shall be set back a minimum of 100 feet measured at right angles from the ordinary high water mark of the Deschutes and Little Deschutes Rivers. 3. A statement indicating that the Deschutes River is designated as a federal Wild and Scenic river corridor. C. The applicant will be required to submit the final plat to the Planning Division for review in accordance with the provisions of Section 17.24.140 of the Subdivision, together with appropriate fees, prior to obtaining the signatures of the Planning Director or Board of County Commissioners. 4. Conformance with Section 17.36.210. The applicant has requested that an exemption from solar setback requirements be granted since the majority of the lots are in wooded areas that are substantially shaded. The developer has not submitted specific information to provide documentation why it is not feasible to designate each lot as having south wall or south roof protection. No shading analysis of existing vegetation which will remain after the development is completed has been submitted. Staff recognizes the presence of substantial vegetation throughout much of the area where the proposed lots will be located. The extent and height of the trees will probably reduce the effectiveness of solar uses on many if not nearly all of the lots. In order to approve an exemption, however, the developer must submit additional information prior to the final plat to demonstrate why solar uses are not feasible. Because the general topography is level, the developer will need to demonstrate how existing vegetation which will remain after the development is complete will preclude solar uses on each lot. Lots 41-51 in phase 2, located along South Century Drive, will be located in an area without many tall trees where solar uses appear to be feasible. These lots will need to meet the setback requirements for meeting the south wall protection standard unless the applicant demonstrates why this standard cannot be met, in which case the south roof standard will apply unless TP-93-817 Page 12 it is also substantiated that this standard cannot be achieved. 5. Conformance with Section 17.44.210. Although the subject property could be suited for open space and park development, there are no parks proposed in the immediate area and there is no park district in the immediate area of the county currently prepared to own, develop and administer areas suitable for future park development. The applicant is required by condition of approval for TP-92-795 to convey a conservation easement to the County for certain property adjacent to the Little Deschutes and Deschutes Rivers. The easement will include a provision allowing limited public access within a portion of the easement area. Public access' must allow for someone to get from the upstream to downstream ends of the property off the Little Deschutes River while allowing for protection of steep banks and sensitive habitat areas such as wetlands. This requirement will need to be met prior to recording the final plat for the first phase of lots. The applicant is also required by condition of approval for TP-92-795 to "dedicate land for a public boat launch on the Deschutes River near Harper Bridge." This bridge is expected to be replaced by a new bridge next year. The design work for the replacement work is currently underway. The developer, county and other agencies and interested parties must still work out the details of determining the appropriate area to be dedicated for such a facility. This requirement will need to met prior to recording the plat for Phase 2 in the subdivision. The dedication of a conservation easement with limited public access and the dedication and improvement of property for a public boat launch facility provide significant public benefits and will serve to meet the park land dedication requirement set forth in this section of the code. No additional funds are required of the developer to meet this section of the code. 5. Conformance with Chapters 18.16 and 18.40. The prior land use decisions ( CU-90-36, CU-90-37 and Master Plan 90-01) determined that the applicant's proposal for a destination resort on property zoned EFU-LaPine subzone and F-2 (formerly EFU-80 and F-3 at the time of the earlier approvals) was in conformance with the zoning ordinance regulations and the comprehensive plan policies in effect at the time those applications were accepted by the county. TP-93-817 Page 13 The county has subsequently rezoned the F-3 portion of the property to F-2 through a legislative rezoning process and adoption of appropriate ordinances. In addition, new standards have been adopted for dwellings located on property in the F-2 zone. Since the construction of dwellings and other structures was contemplated in the decisions cited above, the owners of lots created by this subdivision are not required to obtain conditional use permits in accordance with Chapter 18.40. However, it is recommended that the developer implement the fire siting standards in this Chapter through appropriate covenants, conditions and restrictions for the proposed development on this property. New structures on the lots in this subdivision will be required to meet front, side and,rear yard setbacks from property lines. The Planning Director will need to approve the proposed setbacks prior to signing the final plat for these phases of the development. It is anticipated that setbacks proposed by the developer will be reviewed prior to the final plat for Phase 1 (TP-92-795). 6. Conformance with Chapter 18.80. The Airport Height Combining Zone (A-H) is designated on the zoning maps as an area south of the Sunriver runway near the northwestern corner of the subject property. The maps also include two concentric areas, one larger than the other, which incorporate a majority of the property, but these areas are not specifically labeled "A-H". It is uncertain which standards, if any, apply within the concentric areas. This uncertainty is presently being addressed by planning staff as part of the completion of periodic review. Development of new structures is not proposed within the area clearly labeled A-H. The requirement in Section 18.80.060 that "No structure or plant growth shall exceed 35 feet in height" in specified subzones within the A-H zone. However, the LM Combining Zone has a more restrictive height limitation of 30 feet for all structures. Therefore, all structures will be in compliance with the A-H standard.,., At this time it is not reasonable for the developer to cut back ponderosa and lodgepole pine that may now exceed 35 feet in height or limit tree growth to this height given the uncertainty regarding the concentric mapping in this overlay zone and the fact that the Planning Division is unaware of any current operational hazards to aircraft, or persons or property on the ground, due to existing trees which exceed this height. TP-93-817 Page 14 7. Conformance with Chapter 18.84. The purpose of the Landscape Management Combining Zone is to maintain and enhance scenic and natural resources in this area. Any property within 660 feet of the high water mark (measured perpendicularly from both sides) of the Little Deschutes River, 1320 feet of the high water mark of the Deschutes River, or 1320 feet of the centerline of either Spring River Road or South Century Drive is located within the LM zone. Staff has determined that the following lots in phases 2-4 are located within the LM zone on the tentative map: Phase 2: Lots #1-15, 31-33 and 35-51 (All lots except #34) Phase 3: Lots #76 & 77 Phase 4: Lot #94 Future applicants for building permits on the lots created by final plats which are within the Landscape Management zone will be required to obtain site plan approval prior to obtaining a building permit, in accordance with LM zone (Chapter 18.84) requirements at the time of building permit application. The lot numbers indicated above may change as part of the final plat review process. It is recommended that the developer familiarize lot owners with the County's site plan application requirements and design review standards when lot sales occur. 7. Conformance with Chapter 18.96. Flood map panel #460 published by the federal government in 1988 indicates the extent of the flood hazard area on the subject property susceptible to the base flood. The water surface elevations during the base flood are also shown on this map. The developer's surveyor has plotted the boundary of the flood plain on the tentative map based on these maps and site specific surveying. This development is required to meet Section 18.96.060 of the county code which prohibits new lots to be created in the 100-year floodplain. With the exception of bridges crossing the Little Deschutes, no structures or lots are proposed to be located within the 100-year flood plain. Several. lots previously located within the floodplain in the northwest corner of the property have been relocated on the basis of site -specific surveying prepared by the developer. This has led to the proposal to locate several lots in this area outside the area originally approved as a development pod. Relocation of TP-93-817 Page 15 these lots is required by the zoning ordinance and does not create a situation where the master plan needs to be be formally modified. Although no residential dwellings will be located in the flood plain as a result of the proposed subdivision, the developer is reminded that floods of a magnitude greater than the 11100-year" flood may occur (although statistically with lesser frequency). The approval of these lots near the Little Deschutes and Deschutes Rivers by the County does not constitute any guarantees whatsoever by the County that flooding of residential lots cannot occur at some time in the future. Section 18.96.040 requires that a conditional use permit be obtained from the county for excavation, grading, or fill and removal within the bed and banks of the Little Deschutes or Deschutes Rivers or in a wetland. (Deschutes County defines bed and banks to include the area within 10 feet of the ordinary high water mark as measured at right angles landward from the high water mark.) In previous applications, the applicant has indicated that all appropriate permits from federal, state and local agencies, will be obtained. This decision will include a condition requiring the developer to obtain all necessary approvals for fill/removal activity before commencing any development activity in the bed and banks or wetlands. This condition will primarily affect construction of any bridges across the Little Deschutes. For example, the main entrance roadway will have a new bridge with support(s) anticipated to fall within the bed and banks of the river. This condition was included in the approval for the first phase of lots. The developer has subsequently applied for two conditional use permits to place fill in wetlands and to located an elevated cart path across several wetlands. These applications are being reviewed separately from this application for tentative plat approval. 8. Conformance with Chapter 18.116.210. As previously indicated, a conservation easement is required to be conveyed by the developer to Deschutes County as a condition of approval because of the location of the subject property is adjacent to the Little Deschutes and Deschutes Rivers. The applicant has indicated a willingness,to expand the boundary of the conservation easement from the required minimum width of 10 feet on either side of the rivers to include delineated wetlands. The final map and document language for the conservation easement must still be TP-93-817 Page 16 approved by the applicant and county. This section of the county code and various goals and policies of the comprehensive plan, as addressed in the Resource Element and the Deschutes County/City of Bend River Study, indicate that public access should be a component of this conservation easement. Public access is a legitimate component of the conservation easement due to size of the subject property, the significance of the Little Deschutes/Deschutes Rivers confluence, and the characteristics of the proposed development which surrounds this confluence and the area upstream on the Little Deschutes River. The comprehensive plan designates this confluence as a 400-acre "area of special interest" and that it constitutes a significant resource with respect to Goal 5 of the statewide planning goals. The county and the applicant recognize the importance of the resources, such as fish, birds, wetlands, deer migration, etc., associated with the confluence area. The ESEE (Economic, Social, Environmental and Energy analysis) for this area indicates that resort development, recreational uses, livestock grazing, and fill and removal in wetlands are all potential uses conflicting with the identified natural resources. The ESEE also recognizes that specific measures in the applicable chapters of the county zoning ordinance will allow for protection of those resources while also allowing for conflicting development and use of the property. it is appropriate for the county and the developer to agree on language in the conservation easement which provides for public access landward of the ordinary high water mark of the rivers in such a manner that will not result in irreparable damage to the significant natural resource values on these lands. Continuous public access between the upstream and downstream ends of the Little Deschutes River must be provided. The previous approval for Phase 1 in TP-92-795 includes a condition that requires the conservation easement to be conveyed to the County. This approval will restate that requirement and indicate the easement will be in effect before any final plat for the creation of new lots is approved by the county for recording. 9. Conformance with section 18.128.040(W). Any application for fill/removal activity within the bed and banks, as defined in Title 18, or a wetland must conform to the criteria and standards for a conditional use permit as set forth in this Section. As stated above, the applicant will be required to obtain county TP-93-817 Page 17 approval for proposed fill/removal activity in these areas before such activity commences for the roadway or bridges associated with the subdivision. 10. Stream Habitat Restoration The present stream environment in the Little Deschutes River is not conducive to fish or aquatic habitat in very large numbers. The applicant has submitted a revised "Little Deschutes River Restoration Plan" after consultation with ODFW, the County and others. The applicant is required to complete this plan in cooperation with ODFW prior to any building permits being issued by the County for construction in the first phase of lots in this development. It appears that this timetable is still reasonable and will be met by the applicant. 11. Development Phases The applicant is required as a condition of approval for the Phase 1 plat to construct certain improvements and plat all lots over a 4-year period. In addition, the construction of at least some of the overnight units is tied to issuance of building permits in the final phase of the of residential lots. The "clock" for the four-year timetable was restarted when the decision for TP-92-795 and SP-92-173 became final on March 29, 1993. The final plats for this application must be recorded by March 29, 1997. The developer is required to submit any necessary land use applications (primarily site plan review and landscape management review) together with appropriate fees and obtain county approval for each of these development activities. The developer will be required to install all necessary improvements for each phase of development prior to recording the final plat for each phase, bond the outstanding improvements or complete a Development Agreement with the county in a form approved by County Legal Counsel. 12. Conformance with . PL-2 0 . The Deschutes County Year 2000 Comprehensive Plan includes numerous goals and policies regarding development on property with the plan designations of the subject property. Prior applications have addressed the applicable plan policies indirectly by demonstrating conformance with the zoning ordinance. This findings and decision demonstrates conformance with several zoning ordinance sections not previously addressed. The applicable zoning regulations provide measures which protect resources and regulate development in accordance with the plan goals and policies. Because it has been TP-93-817 Page 18 demonstrated that the zoning ordinance standards can or will be met, the proposed development has been shown to be in conformance with the corresponding or related plan policies. The minor alterations in configuration of the residential lots proposed in this application are consistent with the approved master plan and do not require, therefore, a policy -by -policy review in this decision. 13. Conformance with Title 22. This Title of the County Code requires that certain procedures be followed regarding notice and review of a land use application. Notice of this application was mailed to the applicant, owners of record of property as shown on the most recent property tax assessment roll of property located within 500 feet of the subject property, owner of the Sunriver Airport, and the Planning Commission, as required. Notice of the Planning Director's decision and the appeal period will be sent to the applicant, all persons and agencies who commented on the application and to the Planning Commission, as required. CONCLUSION• The proposed tentative plat for Phases 2-4, to include 79 residential lots, will meet the requirements of Title 17 and other applicable standards of the Deschutes County Code if the conditions below are met. DECISION: APPROVAL CONDITIONS OF APPROVAL: 1. Approval for up to 79 residential lots to be platted in Phases 2-4 of the Two Rivers subdivision is based upon the submitted plan. Any substantial change in the subdivision will require a new tentative plat application. 2. Developer shall prepare the final mylar in accordance with Chapter 17 of the Deschutes County Code and ORS 92.010 through 92.190. Developer shall submit the final plats for Phases 2-4 to the Planning Division for review, together with appropriate fees, prior to signature of the plat by the Planning Director or Board of County Commissioners. 3. The area included in each final plat shall be surveyed and all property corners and public rights -of ways shall TP-93-817 Page 19 be monumented by a licensed surveyor and a final map shall be submitted to the County Surveyor. 4. Developer shall submit a Title Report for the subject property to show evidence of marketable title, and to show that no encumbrances exist on any property being dedicated as right-of-way. If any encumbrances exist, they shall be removed prior to acceptance by the County. 5. Taxes for the subject subdivision shall be paid according to the requirements of ORS 92.095 prior to final approval. 6. Developer shall submit letters from the utility companies stating their ability and intent to serve the proposed subdivision. 7. Developer shall comply with all requirements of the County Environmental Health Division and/or the State of Oregon regarding sanitation systems. 8. Developer shall meet the following recommendations from Deschutes County Public Works: a. An access permit must be obtained from Public Works for any new access to either South Century Drive or Spring River Road. b. A turnaround must be provided on the property so that vehicles do not have to back out onto either South Century Drive or Spring River Road. C. An engineered drainage plan shall be prepared for the roadways in the area included in the Phase I plat. Surface run-off water shall be drained to DEQ approved retention ponds or golf course water hazard ponds and shall not be drained to either river. A drainage system shall be provided for trapped water at vertical sag curves on the private road system. d. Developer is to install and maintain all landscaping so as to not interfere with the required sight distance at the intersection of any private road intersecting with South Century Drive or Spring River Road. e. No vehicular access shall be allowed directly to South Century Drive or Spring River Road except locations approved by access permits. f. A sign plan must be submitted with signs installed by the developer to meet MUTCD and County standards. Where private streets are used the signs shall be maintained by the developer or TP-93-817 Page 20 homeowners association. g. Developer shall pay $95,000 to Deschutes County by January 1, 1996, as payment for one-half of the cost for reconstruction of South Century Drive adjoining the subject property or pave this roadway to a 14' foot width from the centerline along the length of the subject property. Developer may pay the charge in one payment or in installments as each lot is sold. h. A left turn lane shall be installed on South Century Drive at its intersection with Spring River Road for vehicles turning south on South Century. This cost will be borne by the developer. i. The existing easement serving tax lots 13500, 3501 and 3502 shall be relocated so as to ensure appropriate access. j. Emergency fire accesses shall be provided by developer. Locked break -away gates shall• be located at the end of each access route. Developer shall provide an all-weather surface route, which shall be certified by an engineer as to design, location and materials. The location and specifications of the route are subject to final approval by the LaPine and Sunriver Fire Districts. k. All private roads are to have a paved width of 22 feet with two foot wide rock shoulders and clear zone with an 0-9 oil mat surface or better on top of a six inch rock base. Cul-de-sacs are to have a pavement radius of not less than 40 feet; a greater radius shall be constructed if required by the fire department serving this development. 1. A homeowners association or local road improvement district is to be formed to maintain all private roads. M. The following services shall be provided to each lot by the developer or ensured through a development agreement prior to signing of each of the final plats by the Public Works Director: Electrical power, telephone, acceptable road for ingress and egress, public sewer and an acceptable public or private community water system. n. Roads, bridges and any other structures are not to be constructed so as to block the flow of water over the site. o. A revised pedestrian and bicycle circulation plan shall be submitted for approval prior to any TP-93-817 Page 21 private roadway outside the Phase 1 plat boundary being platted for this development. 9. Developer shall meet the following recommendations of the Oregon Department of Fish and Wildlife: a. A minimum 300 foot natural vegetative corridor must be provided to move deer through this development either at the southern end of the development or at another location if approved by ODFW. b. Any fencing at the perimeter of the property shall be constructed with prior review and approval by ODFW. C. Lot owners shall be informed by the developer of the potential damage from wildlife on their property. d. Lot owners shall be informed by the developer that public hunting in accordance with ODFW regulations is permitted on the Deschutes River at the confluence with the Little Deschutes River. A copy of the Deschutes River No Shooting Corridor map prepared in September, 1993, should be made available to all lot owners. 10. Developer shall meet all requirements of the Oregon Health Division. Water source shall be approved and certified by Oregon Water Resources Department. The drinking water distribution system shall be approved by the Oregon Health Division prior to construction. 11. Developer shall meet all requirements of the Watermaster. The applicant shall contact the Oregon Water Resources Department to make sure that all water rights and water permits are taken care of before any water is used on this property. 12. Developer shall meet all requirements of the Deschutes County Property Address Coordinator. The subdivision name and all road names in Phases 2-4 shall be approved by the Property Address Coordinator prior to recording the final plat for Phase 1. 13. Developer shall inform the future owners of residential lots of the following: a. Native vegetation along the Deschutes River shall not be disturbed. b. Development activity on lots within the Landscape Management Combining Zone must receive site plan approval from Deschutes County in accordance with the provisions of Chapter 18.84 at the time of TP-93-817 Page 22 application for building permits on each lot. C. The "Living with Nature" pamphlet shall be approved by ODFW and completed by developer prior to issuance of any residential building permits. Developer shall distribute a copy of the "Living with Nature" pamphlet to all lot owners. 14. Developer shall meet all requirements of the Deschutes County Building Division for plumbing permits before construction of the sewer lines commences. 15. The final plat for each Phase shall include the exact lot size for each of the lots. 16. All utilities for the area included in each Phase plat shall be underground. 17. The final plat for each Phase shall include all information specified in Section 17.24.060 of the Deschutes County Code and, in addition, include the following: a. A delineation of the area landward of the ordinary high water mark of the Little Deschutes and Deschutes Rivers to be dedicated to Deschutes County as a conservation easement with limited public access, if such conservation easement area falls on any portion of plat. b. A statement that all structures, buildings or similar permanent fixtures shall be set back a minimum of 100 feet measured at right angles from the ordinary high water mark of the Little Deschutes and Deschutes Rivers and a setback line 100 feet landward from the ordinary high water mark of the Deschutes and Little Deschutes Rivers for those portions of the plat where these rivers are within 200 feet of any residential lots. C. A statement indicating that the Deschutes River is designated as a federal Wild and Scenic River in this area. 18. All residential lots must be located entirely outside of the 100-year floodplain. _ day 19. Developer shall obtain all necessary approvals frog,. Deschutes County and other appropriate state and federAlf agencies, for fill/removal activity in the bed and banks of the Little Deschutes or Deschutes Rivers or in a wetland before commencing any development activity in the bed and banks of these rivers or in.a wetland. 20. The tentative plat approval for shall be void if the TP-93-817 Page 23 final plat for the final phase of residential lots has not been recorded by March 29, 1997, four (4) years from the date the decision for TP-92-795 became final. 21. No building permits shall be issued for the last phase of residential lots until the first phase of construction on the condominium units (8 units) has begun. 22. Developer shall convey a Conservation Easement to Deschutes County to include areas within ten feet of the Little Deschutes and Deschutes rivers and certain wetlands directly associated with the rivers and not affected by the golf course. The easement shall allow public access for foot traffic for recreational purposes and the putting in or the taking out of boats in the areas along the rivers, 10 feet in width, measured landward at right angles from the ordinary high water mark. This requirement shall be met prior to recording any final plats for Two Rivers at Sunriver. 23. Developer shall dedicate land for a public boat launch facility on the Deschutes River near Harper Bridge prior to recording the final plat for phase 2. 24. All structures, buildings or other permanent fixtures requiring a building permit shall be set back a minimum of 40 feet from the perimeter property boundary. 25. Building envelopes to be designated on the final plats or setbacks for new dwellings or structures on residential lots shall be approved by the Planning Director prior to recording each final plat. 26. Developer shall incorporate fuel breaks and adequate fire control plans in the overall project plan. This decision becomes final ten (10) days from the date mailed, unless appealed by a party of interest. DESCHUTES COUNTY PLANNING DIVISION George J. Read Planning Director r K vin M. Ha rison, Senior Planner DBL/mjz TP-93-817 Page 24 opx {J 4 o v"'► g z � UJ U Q .ter o LU O z W 5 N �= V Cq o 012 G o arc, C6 U ...) to = CD ! E OE C �n V XVO ;rcV. O _ CONSERVATION EASEMENT 94~28F90 ��vIWI6' LE COUNSEL 346 M 0774 CROSSWATER DEVELOPMENT L.L.C., an Oregon Limited Liability Company, hereinafter referred to as "Grantor", owner of certain real property described below as evidenced by the Warranty Deed dated April 7, 1994, recorded in Volume 335, Page 342 of the Deschutes County Book of Records described as follows: See Exhibit "A" attached hereto and by this reference incorporated herein. (hereinafter the Real Property) conveys to Deschutes County, a political subdivision of the State of Oregon, hereinafter referred to as "Grantee", in consideration for the land use permits approved by Grantee in land use file numbers TP-92-795, SP-92-173, and TP-93-817, a Conservation Easement over, across, through and above the following described portions of the real property subject to the reservation hereinafter set forth: An area of land from the ordinary high water mark (OHWM) on both sides of the Little Deschutes River and the Deschutes River extending ten feet landward as measured at right angles from the OHWM (the "River Area"), and the other lands described in the attached Exhibit B (the "Other Lands"). 1. This Conservation Easement is a non -possessory interest of Grantee imposing limitations and affirmative obliga- tions as set out herein. 2. Grantor shall retain and protect the natural scenic and open space values of the easement area. Any uses within the Conservation Easement shall protect natural CONSERVATION EASEMENT - 1 Crosswater Development L.L.C. 346 -! 0775 resources, maintain or enhance air and water quality, and preserve any historical, architectural, archaeo- logical, or cultural aspects of the real property. 3. Reservation. Grantor, for itself and its successors and assigns, excepts and reserves from the conveyance of the Conservation Easement hereunder the following rights and interests: A. Grantor shall have the right to install, maintain, repair, renovate, and replace from time to time the . improvements in the River Area and the Other Lands authorized by the Land Use Approvals (and any subsequent approvals or permits obtained by Grantor, its successors and assigns from Grantee with respect to the River Area and the Other Lands), including without limitation the golf course and attendant foot bridges, cart paths and bridges approved by the Land Use Approvals. Further, Grantor reserves the right to engage in wetlands enhancement programs from time to time consistent with the river restoration plan approved by Grantee as a part of the Land Use Approvals. B. Grantor shall have the right to manage the River Area and the Other Lands in a manner consistent with the operation of the golf course approved by the Land Use Approvals, including manual removal of shrubs and trees which, due to height, adversely impact the line of golf play, removal of noxious weeds to enhance wetland quality and golf play at edges of wetlands, the placement of directional and other signs, and the removal of golf balls, so long as such activities do not involve the construction of improvements beyond those approved by the Land Use Approvals and are otherwise in accordance with the landscaping, draining, and grassing plans approved in the Land Use Approvals. C. Grantor agrees that it shall exercise its rights under the foregoing reservation in accordance with the Land Use Approvals and any other applicable federal, state or local permits. 4. Grantor agrees to clean up any trash, debris, garbage, or other unsightly or offensive material which may be found within the easement area. 5: Grantee may enter upon the easement for the following purposes: A. To inspect for violations and to administer the easement. B. To implement erosion prevention measures. CONSERVATION EASEMENT - 2 Crosswater Development L.L.C. ads - 0776 C. To plant trees or perform restoration work as deemed necessary to protect, restore, or enhance the scenic view. D. To protect and restore historic or archaeological sites which may exist within the easement area. E. To take all measures deemed necessary to prevent or suppress forest fires. F. To implement disease prevention measures to protect the scenic quality of the river setting. G. To selectively cut or prune brush. H. To mark, prune, cut, remove, or otherwise dispose of all dead, dying, diseased, or insect -infested live or other trees which, in the judgment of Grantee, endanger the public safety or detract from the aesthetics of the above -described areas. I. Nothing herein shall be construed as creating any duty on the part of the Grantee to undertake any of the above enumerated activities. 6. Public Access. As part of this conservation Easement, Grantor shall allow public access, subject to the following conditions: A. Public access shall be limited to foot traffic for recreational purposes and the putting in or taking out of boats. B. Unless otherwise permitted by the affected property owner, public access does not allow public passage through other private property to gain access to the property subject to this Conservation Easement. C. Unless otherwise permitted by State law, County Ordinance or the property owner, no person on the subject property as a result of the public access requirement of this Conservation Easement shall deposit solid waste, damage or remove any property (including wildlife and vegetation) maintain or ignite fires or fireworks, discharge firearms, or camp. D. Public access shall not result in irreparable damage to the significant natural resource values on the real property, including any riparian or wetland area, any sensitive wildlife area or any existing historic sites on the property. CONSERVATION EASEMENT -- 3 Crosswater Development L.L.C. 346 - 0777 E. Grantor does not assume, and hereby expressly disclaims, any liability to the public by reason of the public's exercise of the right of access to the River Area under this Conservation Easement. 7. Restrictions on use of land by Grantor: A. Except as provided in Section 3A, no structure of any kind, including house trailers or mobile homes, shall be placed, used, erected, or maintained upon the easement area. B. Grantor shall not use or occupy any portion of the easement area in a manner which would degrade or diminish the natural, scenic, and open space values of the real property. C. Grantor shall protect the natural resources value, maintain and enhance air and water quality, and preserve historic, architectural, archaeological, and cultural aspects of the easement area. D. The construction, placement, or exterior alteration of any structure or facility may be undertaken only after obtaining prior written approval of archi- tectural and site plans from Grantee. E. There is specifically retained by the Grantor the right to perform ordinary maintenance on all existing buildings and structures,together with the right to replace, rebuild, or substitute any building or structure now existing with a similar building or structure in substantially the same location; however, the replacement, rebuilding, or substitution of any building or structure may be undertaken only after obtaining prior written approval of architectural and site plans from Grantee. F. Except as provided herein, no other new structure of any kind shall be placed on or erected upon the easement area. G. No tents, travel trailers, or camping facilities of any kind shall be placed or erected upon the easement area except as approved in writing by Grantee. H. No new installation of above -ground utilities, structures, or lines shall be made upon or within the easement area without prior written approval of Grantee. I. No changes in the general topography or land surface (including excavation, road construction, CONSERVATION EASEMENT - 4 Crosswater Development L.L.C. 346 - 0778 and the quarrying or removing of rocks, sand, dirt, gravel, or other material) are permitted within the easement area unless authorized in writing by Grantee. J. No dumping of trash, debris, garbage, or other unsightly or offensive material shall be allowed upon the easement area. K. Grantor shall retain title to all trees, standing or downed, within the easement area; provided, however, that, except as provided in section 38, the. cutting or removal of vegetation shall be limited to that needed to maintain an orderly appearance around the structures. L. No water pumping facilities shall be placed within the easement area without prior written approval of Grantee. Approval of such facility shall be con- tingent upon the proposed location, pumping facility design, and the inclusion of adequate visual and sound reducing screening for the protection of natural qualities in and along the river. M. Grantor shall take all necessary precautions to avoid damage to fish habitat and exercise every reasonable precaution to prevent muddying or silting of .the river or stream. N. Grantor shall not allow oil or greasy substances originating from construction operations to enter or be placed where they may later enter the river or stream. 8. This Conservation Easement may be enforced by Grantee, its assigns and successors. 9. The covenants, conditions and terms of this Agreement shall extend to and be binding upon and inure to the benefit of the heirs, administrators, executors, successors and assigns of the parties thereto. CONSERVATION EASEMENT - 5 Crosswater Development L.L.C. DATED this A_ day of ATTEST: (I,,- ]-d4 -I'-- Recording Secretary 346 - 0779 1994. BARRY H. SLAUGHTER, Comm ss oner STATE OF OREGON, County of Deschutes: ss BEFORE ME, as Notary Public, personally appeared NANCY POPE SCHLANGEN, TOM THROOP and BARRY H. SLAUGHTER, the above named Board of Commissioners of Deschutes County, and acknowledged the foregoing instrume on behalf of Deschutes County, Oregon, this �2P day of , 1994. ANMA C 1 E I NOTARY PUBLIE WON COMMISSION W. 023M ` Ct)kt>�lISSIOX EXPnRESAML 18, 1997 Notary Public fo Oregon My commission Expires: 9-'la'Q7 CONSERVATION EASEMENT - 6 Crosswater Development L.L.C. 346 w078O DATED this 3 day of 1994. o?Dtz qLj-Cd1 we CROSSWATER DEV'EMPHENT, L.L.C. , an Oregon limited liability company By: Sunriver Resort Limited Partnership, a Delaware limited partnership, a member By: Law* Sunriver, Inc., A CalifojMia corporation, General tner By • �. Charles S. feck, President STATE OF -M , County of &.:ss on this Acn day of , 1994, the undersigned, a Notary Publ and forUsaid dbunty and State, personally appeared the within named CHARLES S. PECK, President, who is known to me to be the identical individual described in and who executed the within instrument and acknowledged to me that they executed the same freely and voluntarily. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year last above written. aMah OFFICIAL SEAL JAYNE J DI ISTOW qF NOTARY PUBLIC•OREGON COMMISSION NO.034380 MY COMMISSION EXPIRES JULY 22, 1998 CONSERVATION EASEMENT - 7 Crosswater Development L.L.C. qaula�_4 I - / C/- Motai0y Publilb for ✓ d My Commission Expires: 8 R-XIBIT A 346 N 0781 BEGINNING AT A 3" BRASS CAP AT THE NORTHWEST CORNER OF THE NORTHEAST QUARTER OF SECTION 7 IN TOWNSHIP 20 SOUTH AND RANGE 11 EAST OF THE WILLAMETTE MERIDIAN IN DESCHUTES COUNTY, OREGON, SAID POINT BEING THE INITIAL POINT FOR THIS PLAT; THENCE NORTH 87°58'42" EAST 2648.63 FEET TO A 3" BRASS CAP AT THE NORTHWEST CORNER OF THE NORTHWEST QUARTER OF SECTION 8; THENCE NORTH 891153'35" EAST ALONG THE NORTH LINE OF SAID NORTHWEST QUARTER 1056.71 FEET TO A 518" IRON ROD; THENCE SOUTH 01 "34'52" EAST 33..77 FEET TO A 518" IRON ROD AT THE NORTHWEST CORNER OF PARCEL 1 IN MP-85-11; THENCE SOUTH 01°30123" EAST 149.88 FEET TO A 5/8" IRON ROD AT THE SOUTHWEST CORNER OF SAID PARCEL; THENCE NORTH 88°23'24" EAST 99.91 FEET TO A 5/8" IRON ROD AT THE SOUTHEAST CORNER OF SAID PARCEL; THENCE NORTH 01 032'29" WEST 149.83 FEET TO A 5/8" IRON ROD AT THE NORTHEAST CORNER OF SAID PARCEL; THENCE NORTH 01 034'52" WEST 31.20 FEET TO A 5/8" IRON ROD ON THE NORTH LINE OF SAID NORTHWEST QUARTER; THENCE NORTH 89°53'35" EAST 125.54 FEET TO A 518" IRON ROD AT THE NORTHEAST CORNER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 8; THENCE SOUTH 00"08'05" EAST 2579.35 FEET ALONG THE EAST LINE OF THE WEST HALF OF THE NORTHWEST QUARTER OF SECTION 8 TO A 5/8" IRON ROD ON THE WESTERLY RIGHT-OF-WAY OF SOUTH CENTURY DRIVE; THENCE SOUTH 00036'54" WEST 1739.57 FEET TO A 5/8" IRON ROD; THENCE 117.26 FEET ALONG THE ARC OF A 2368.10 FOOT RADIUS CURVE LEFT (THE LONG CHORD OF WHICH BEARS SOUTH 00*48' 13" EAST 117.25 FEET) TO A 5/8" IRON ROD; THENCE LEAVING SAID WESTERLY RIGHT-OF-WAY WEST 65.38 FEET TO A 5/8" IRON ROD; THENCE 108.50 FEET ALONG THE ARC OF A 250.00 FOOT RADIUS CURVE LEFT (THE LONG CHORD OF WHICH BEARS SOUTH 77034'00" WEST 107.65 FEET) TO A 518" IRON ROD; THENCE SOUTH 65007'59" WEST 129,89 FEET TO A 5/8" IRON ROD; THENCE 76.33 FEET ALONG THE ARC OF A 167.50 FOOT RADIUS CURVE RIGHT (THE LONG CHORD OF WHICH BEARS SOUTH 78 al 1'16" WEST 75.67 FEET) TO A 5/8` IRON ROD; THENCE 63.22 FEET ALONG THE ARC OF A 392.50 FOOT ' RADIUS CURVE RIGHT (THE LONG CHORD OF WHICH BEARS NORTH 84"08'36" WEST 63.15 FEET) TO A 5/8" IRON ROD; THENCE NORTH 79"31'45" WEST 132.38 FEET TO A 518" IRON ROD; THENCE 130.36 FEET ALONG THE ARC OF A 392.50 FOOT RADIUS CURVE RIGHT (THE LONG CHORD OF WHICH BEARS NORTH 70000'51" WEST 129.76 FEET) TO A 5/8" IRON ROD; TTIENCE NORTH 60029'57" WEST 40.89 FEET TO A 518" IRON ROD; THENCE 325.45 FEET ALONG THE ARC OF A 617.50 FOOT RADIUS CURVE RIGHT (THE LONG CHORD OF WHICH BEARS NORTH 45°24`01" WEST 321.70 FEET) TO A 5/8" IRON ROD; THENCE NORTH 30' 18'05" WEST 346 r 0782 222,66 FEET TO A 518" IRON ROD; THENCE 322.21 FEET ALONG THE ARC OF A 382.50 FOOT RADIUS CURVE LEFT (THE LONG CHORD OF WHICH BEARS NORTH 54°26'02" WEST 312.77 FEET) TO A 518" IRON ROD; THENCE NORTH 78"34'00" WEST 72.86 FEET TO A 518" IRON ROD; THENCE 174,94 FEET ALONG THE ARC OF A 142.50 FOOT RADIUS CURVE LEFT (THE LONG CHORD OF WHICH BEARS SOUTH 66a 15'48" WEST 164.16 FEET) TO A 518" IRON ROD; THENCE SOUTH 31 °05'35" WEST 29.12 FEET TO A 518" IRON ROD; THENCE 277.91 FEET ALONG THE ARC OF A 317.50 FOOT RADIUS CURVE RIGHT (THE LONG CHORD OF WHICH BEARS SOUTH 56"10'07" WEST 269.12 FEET) TO A 5/8" IRON ROD; THENCE SOUTH 81' 14'39" WEST 110.09 FEET TO A 5/8" IRON ROD; THENCE NORTH 08"45'21" WEST 35.00 FEET TO A 5/8" IRON ROD; THENCE NORTH 06"22' 14" WEST 48.80 FEET TO A 518" IRON ROD; THENCE SOUTH 83"37'46" WEST 376.86 FEET TO A 518" IRON ROD; THENCE SOUTH 89"06'04" WEST 350.68 FEET TO A 3" BRASS CAP AT THE SE 1/16 CORNER OF SECTION 7; THENCE SOUTH 88"09'35" WEST 1321.12 FEET TO A 3" BRASS CAP AT THE CS 1116 CORNER OF SECTION 7; THENCE NORTH 00013'52" EAST 3988.32 FEET TO THE POINT OF BEGINNING. 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BACKGROUND AND POLICY IMPLICATIONS: On April 9, 2009, the Board of County Commissioners resolved to rezone the "410 Acre Area" of the Lower Bridge Mine from Surface Mining to Rural Residential upon the fulfillment of the conditions listed in Resolution 2009-035. Of the conditions, only #1 and #2 had not been previously completed. The applicant has satisfied these remaining conditions and requests the Board adopt an ordinance implementing the rezone in accordance with the Resolution. FISCAL IMPLICATIONS: None. ATTENDANCE: Will Groves, Legal. STAFF MEMORANDUM Date: August 6, 2020 To: Board of County Commissioners From: Will Groves, Senior Planner Re: Ordinance 2020-013, Lower Bridge Mine Site An Ordinance Amending Deschutes County Comprehensive Plan Text And Map Designation for Certain Properties from Surface Mine (SM) and Agriculture (AG) To Rural Residential Exception Area (RREA); and Remove Surface Mining Site 461 from the County's Goal 5 Inventory of Significant Mineral and Aggregate Resource Sites; and Amend Title 18, the Deschutes County Zoning Map, Zoning Map Designation from Surface Mining (SM) and Exclusive Farm Use (EFU) To Rural Residential-10 (RR-10) Zone The Board of County Commissioners (Board) will consider of signature of and first reading by title only on Ordinance 2020-013. This ordinance implements the Board's Resolution of Intent to Rezone (2009-035, "Resolution") the subject property to Rural Residential (RR-10). The subject property is the "410 Acre Area", shown unshaded within the dashed boundary in the figure below and lying west of Lower Bridge Way. NORTH LINE PARCEL 3 �� ��� APPRO . BOUNDARY - 10' WEST OF MP-60-96 x HIGH TER LINE DCSCHUTES RIVER B 9 -N8sUQ:L--. s 6 1s N II N Y CORNER CL D€ HUTES RIVERSEC. 16 - 1 + 01 ED BK,139, PC. 207 T 1 �rt io0€ 8Y 'T - 5FE SHFF, i 2 OF 2 "410"A j AR " i+ CR F1.xi" g" w APPROX. I +� '1 NE 6. LONER ' 1 PARCEL 7 s BR!00E T�Pir� 3 1 s.p3 4 NZ� W i PARTITION PUT 199147 uMj 20AD 2`X OFrT1`..f'��' CS 7S3 4 PARCELS // !.A SOU711 LINE CS 00169m fi1 x ^ NW y 5TV Y t: -:1.i5 1N 1 1 S Y y C . SEC.I6CORNER 17 16 Il �µ BPoDGE 2'A' IT? OAD1- 9 10 ZOi21 ;G iJ SOUTH LINE SEC'.16 ' 117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005 Q (541) 388-6575 @ cdd@deschutes.org @ www.deschutes.org/cd I. Background On April 9, 2009, the Board of County Commissioners resolved to rezone the "410 Acre Area" of the Lower Bridge Mine from Surface Mining to Rural Residential upon the fulfillment of the conditions listed in Resolution 2009-035. Conditions specified the Resolution would expire in five years unless extended. Deschutes County Code ("DCC") 18.136.030(B) allows the extension of a Resolution, subject only to Board approval. Lower Bridge Road, LLC, received extensions of the Resolution under File No. E-14-6 to April 9, 2015; under Order No. 2015-027 to October 26, 2017; under Order No. 2017-043 to October 26, 2019; and under Order No. 2019-044 to October 26, 2020. Condition #8 of the Resolution of Intent to Rezone requires the Board to rezone the property upon Applicant's completion of the conditions of the Resolution. Of the conditions, only #1 and #2 had not been previously completed. The applicant has satisfied these remaining conditions and requests the Board adopt an ordinance implementingthe rezone in accordance with the Resolution. 11. Resolution of Intent to Rezone Condition The property owner has completed each of the following conditions that were required prior to rezoning. 1. Within five (5) years of the date the decision in Exhibit C is final or prior to final plat approval for any residential subdivision on the 410 acre area that is the subject of File No. ZC-08-11P A-08-1, whichever is earlier, the applicant shall obtain from the Oregon Department of Environmental Quality ("DEQ") a "No Further Action "("NFA ") determination or the equivalent for a residential use designation for this 410 acre area. As described above, the 5-year period was properly extended to October 26, 2020. The applicant has submitted the required determination. Z Within (5) five years of the date the decision in Exhibit C is final or prior to final plat approval for any residential subdivision on the 410 acre area that is the subject of File No. ZC-08-11P A-08-1, whichever is earlier, the applicant shall obtain from the Oregon Department of Human Services a determination of "no apparent public health hazard" for a residential use designation for this 410 acre area. As described above, the 5-year period was property extended to October 26, 2020. The applicant has submitted the required determination. III. NEXT STEPS The Board will consider of signature of and first reading by title only on Ordinance 2020-013. File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 2 of 3 DESCHUTES COUNTY PLANNING DIVISION Will Groves, Senior Planner Attachments: Reference Number Ordinance 2020-013 with Exhibits File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 3 of 3 REVIEWED LEGAL COUNSEL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Deschutes County Comprehensive Plan Text And Map Designation for Certain Properties from Surface Mine (SM) and Agriculture (AG) To Rural Residential Exception * ORDINANCE NO.2020-013 Area (RREA) and Remove Surface Mining Site 461 from the County's Goal 5 Inventory of Significant Mineral and Aggregate Resource Sites; and Amend Title 18, the Deschutes County Zoning Map, Zoning Map Designation from Surface Mining (SM) and Exclusive Farm Use (EFU) To Rural Residential-10 (RR-10) Zone WHEREAS, Lower Bridge Road, LLC proposed a quasi-judicial plan amendment to change the comprehensive plan designation of certain property from Surface Mine (SM) and Agriculture (AG) to Rural Residential Exception Area (RREA); and WHEREAS, after notice was given in accordance with applicable law, public hearings were held before the Deschutes County Hearings Officer and, on August 6, 2008 the Hearings Officer recommended approval the Plan Amendment; and WHEREAS, after notice was given in accordance with applicable law, public hearings were held on December 3, 2008, December 17, 2008 and December 29, 2008 before the Board of County Commissioners ("Board"), and WHEREAS, the Board, after review conducted in accordance with applicable law, approved the Comprehensive Plan amendment to change the comprehensive plan designation of certain property from Surface Mine (SM) and Agriculture (AG) to Rural Residential Exception Area (RREA) and Remove Surface Mining Site 461 from the County's Goal 5 Inventory of Significant Mineral and Aggregate Resource Sites; and Amend Title 18, the Deschutes County Zoning Map, Zoning Map Designation from Surface Mining (SM) and Exclusive Farm Use (EFU) To Rural Residential-10 (RR-10) from Surface Mining to Rural Residential Zone, and WHEREAS, the Board resolved to rezone the western portion of the Lower Bridge Mine from Surface Mining to RR-10 in Resolution 2009-035 ("Resolution") upon the fulfillment of ten conditions, and WHEREAS, between 2014 and 2019, the Planning Division and the Board extended the expiration date of the resolution four times, and PAGE 1 OF 3 - ORDINANCE NO.2020-013 WHEREAS, Condition #8 the Resolution requires the Board to rezone the property upon Applicant's completion of the conditions of the Resolution. WHEREAS, in compliance and fulfillment with the applicable conditions of the resolution; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. DCC Title 23.01.010, Introduction, is amended to read as described in Exhibit "A," attached hereto and by this reference incorporated herein, with new language underlined and deleted language set forth in strike Section 2. AMENDMENT. DCC Title 23, The Deschutes County Comprehensive Plan, Section 5.8, Inventory, Mineral and Aggregate Resources Goal 5 Inventory, is amended as described in Exhibit "B," attached and incorporated by reference herein with new language underlined and deleted language set forth in stfi .ethro g sn• Section 3. AMENDMENT. DCC Title 23, The Deschutes County Comprehensive Plan Map, is amended to change the plan designation for certain property described in Exhibit "C" and depicted on the map set forth as Exhibit "D", with both exhibits attached and incorporated by reference herein, from Surface Mine (SM) and Agriculture (AG) to Rural Residential Exception Area (RREA). Section 4. AMENDMENT. Deschutes County Comprehensive Plan Section 5.12, Legislative History, is amended to read as described in Exhibit "E" attached and incorporated by reference herein, with new language underlined and deleted language set forth in stfik�. g h. Section 5. AMENDMENT. DCC Title 18, Zoning Map, is amended to change the zone designation for certain property described in Exhibit "F" from Surface Mining (SM) and Exclusive Farm Use (EFU) To Rural Residential-10 (RR-10) Zone. Section 6. FINDINGS. The Board adopts as its findings in support of this Ordinance, the Decision of the Board as set forth in Exhibit "G", and incorporated by reference herein. Dated this of , 2020 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON PATTI ADAIR, Chair ANTHONY DeBONE, Vice Chair ATTEST: Recording Secretary PHILIP G. HENDERSON, Commissioner PAGE 2 OF 3 - ORDINANCE NO.2020-013 Date of 1' Reading: day of 12020. Date of 2°d Reading: day of 32020. Record of Adoption Vote: Commissioner Yes No Abstained Excused Patti Adair Anthony DeBone Philip G. Henderson Effective date: day of 52020. PAGE 3 OF 3 - ORDINANCE NO.2020-013 Ord 2020-013 Exhibit A Chapter 23.01 COMPREHENSIVE PLAN Chapter 23.01 COMPREHENSIVE PLAN 23.01.010. Introduction. A. The Deschutes County Comprehensive Plan, adopted by the Board in Ordinance 2011-003 and found on the Deschutes County Community Development Department website, is incorporated by reference herein. B. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2011-027, are incorporated by reference herein. C. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2012-005, are incorporated by reference herein. D. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2012-012, are incorporated by reference herein. E. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2012-016, are incorporated by reference herein. F. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-002, are incorporated by reference herein. G. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-009, are incorporated by reference herein. H. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-012, are incorporated by reference herein. I. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-007, are incorporated by reference herein. J. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-005, are incorporated by reference herein. K. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-006, are incorporated by reference herein. L. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-012, are incorporated by reference herein. M. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-021, are incorporated by reference herein. N. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-027, are incorporated by reference herein. O. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2015-021, are incorporated by reference herein. P. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2015-029, are incorporated by reference herein. Q. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2015-018, are incorporated by reference herein. R. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2015-010, are incorporated by reference herein. S. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-001, are incorporated by reference herein. T. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-022, are incorporated by reference herein. U. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-005, are incorporated by reference herein. Chapter 23.01 (5/2020) Ord 2020-013 Exhibit A V. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-027, are incorporated by reference herein. W. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-029, are incorporated by reference herein. X. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2017-007, are incorporated by reference herein. Y. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2018-002, are incorporated by reference herein. Z. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2018-006, are incorporated by reference herein. AA. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2018-011, are incorporated by reference herein. BB. [repealed by Ord. 2019-010 §1, 2019] CC. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2018-008, are incorporated by reference herein. DD. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2019-002, are incorporated by reference herein. EE. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2019-001, are incorporated by reference herein. FF. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2019-003, are incorporated by reference herein. GG. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2019-004, are incorporated by reference herein. HH. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2019-011, are incorporated by reference herein. II. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2019-006, are incorporated by reference herein. JJ. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2019-019, are incorporated by reference herein. KK. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2019-016, are incorporated by reference herein. LL. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2020-001, are incorporated by reference herein. MM. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2020-002, are incorporated by reference herein. NN. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2020-003, are incorporated by reference herein. 00 The Deschutes County Comprehensive Plan amendments adopted by the Board in Ordinance 2020-013 are incorporated by reference herein. (Ord. 2020-013 0, Ord. 2020-003 §1, 2020; Ord. 2020-002 §1, 2020; Ord. 2020-001 §26, 2020; Ord. 2019-019, §2, 2019; Ord. 2019-006 §1, 2019; Ord. 2019-011 §1, 2019; Ord. 2019-010 §1, 2019; Ord. 2019-004 §1, 2019; Ord. 2019-003 §1, 2019; Ord. 2019-001 §1, 2019; Ord. 2019-002 §1, 2019; Ord. 2018-008 §1, 2018; Ord. 2018-005 §2, repealed; Ord. 2018-011 §1, 2018; Ord. 2018-011 §1, 2018; Ord. 2018-006 § 1, 2018; Ord. 2018-002 § 1, 2018; Ord. 2017-007 § 1, 2017; Ord. 2016-029 § 1, 2016; Ord. 2016-027 §1, 2016; Ord. 2016-005 §1, 2016; Ord. 2016-022 §1, 2016; Ord. 2016-001 §1, 2016; Ord. 2015-010 §1, 2015; Ord. 2015-018 § 1, 2015; Ord. 2015-029 § 1, 2015; Ord. 2015-021 § 1, 2015; Ord. 2014-027 § 1, 2014; Ord. 2014-021 §1, 2014; Ord. 2014-12 §1, 2014; Ord. 2014-006 §2, 2014; Ord. 2014-005 §2, 2014; Ord. 2013-012 §2, 2013; Ord. 2013-009 §2, 2013; Ord. 2013-007 §1, Chapter23.01 (5/2020) Ord 2020-013 Exhibit A 2013; Ord. 2013-002 §1, 2013; Ord. 2013-001 §1, 2013; Ord. 2012-016 §1, 2012; Ord. 2012-013 §1, 2012; Ord. 2012-005 §1, 2012; Ord. 2011-027 §I through 12, 2011; Ord. 2011-017 repealed; Ord.2011-003 §3, 2011) NOTE: Repealed Ord. 2018-005 §2, 2018 was adopted as subsection Z., but should have been subsection BB. Ord. 2019-001 § 1, 2019, was adopted as subsection DD., but should have been subsection EE. Ord. 2019-006 §1, 2019 was adopted as HH., but should have been subsection II. Ord. 2019-019 §2, 2019 was adopted as subsection LL., but should have been JJ. Ord. 2019-016 §3, 2019 was adopted as subsection LL., but should have been K.K. Ord. 2020-001 §26, 2020 was adopted as subsection KK., but should have been subsection LL. The corrections are incorporated above. Click here to be directed to the Comprehensive Plan (http://www.deschutes.org/compplan) Chapter 23.01 (5/2020) Ord. 2020-013 SCct%Ow 5.8 c'jDAI, 5 IvwCwtDYIJi M�weraL awd aggregate R.esou.rces Background Exhibit B This section contains information from the 1979 Deschutes County Comprehensive Plan as revised. It lists the surface mining resources in Deschutes County. These inventories have been acknowledged by the Department of Land Conservation and Development as complying with Goal 5. No changes have been proposed for the 2010 Comprehensive Plan update. Table 5.8.1 — Deschutes County Surface Mining Mineral and Aggregate Inventory # Taxlot Name Type Quantity* Quality Access/Location 151010-00- 246 00205, 207, Tewalt S & G 10,000 Good Hwy 20 300, 302, 303 248 151012-00- Cyrus Cinders 30.2 M Excellent Cloverdale Road 00100 15121 1-DO- 251 01400, 151214- Cherry S & G 125,000 Good AO-00800 252 151200-00- Thornburgh Rock 2.5 M Good 04700, 04701 271 151036-00- Deschutes S & G 2 M Mixed Harrington Loop 00800 County Road Fryrear 273 151117-00- Deschutes S & G 75,000 Excellent Rd/Redmond- 00100 County Sisters 274 151 1 17-00- Deschutes S & G Excellent Fryrear Road 00700 County 275 151 100-00- Deschutes S & G 175,000 Good Fryrear Landfill 02400 County 277 15101 1-00- Oregon State S & G 100,000 ODOT 01100 Hwy Specs 151 140-AO- State, of 278 00901, 15121 1- Oregon S & G 18,000 SpecODOS DO-01200 282 171000-00- Crown Pacific Cinders 100,000 Fair 00100 283 171000-00- Crown Pacific Cinders 50,000 Fair 00100 288 171 1 1 1-00- Tumalo S& G 250,000 Good 00700 Irrigation 292 171 1 12-00- RL Coats S & G 326,000 ODOT 00900 Specs 171 12-00- 293 00500, 600, RL Coats S & G 3 M ODOT 700,800 Specs DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.1 I GOAL 5 ADOPTED ORDINANCES Ord. 2020-013 Exhibit B # Taxlot Name Type Quantity* Quality Access/Location 296 171 100-00- 02702 Crown Pacific Cinders 100,000 Excellent Shevlin Park/Johnson Rd 297 171 123-00- Crown Pacific Cinders 60,000 Johnson Rd/Tumalo 00100 303 171207-00- Cascade Pumice 750,000 Good 00300 Pumice 303 171207-00- Cascade S & G 10,000 Good 00300 Pumice 313 171433-00- Deschutes S & G 100,000 Good 00600 County 313 171433-00- Deschutes Storage Dodds 00600, 120 County Road/Alfalfa 314 171332-00- Deschutes Dirt 150,000 Good 01100 County 315 140900-00- Stott Rock 93,454 tons ODOT Highway 20 02100 Specs 316 140900-00- Black Butte S & G 7 M Good 00202 Ranch 317 140900-00- Willamette Cinders 1.2 M Good 01300 Ind Lower 322 141200-00- Fred Gunzner S & G 1.5 M Mixed Bridge/Terrebonn 01801 e Lower 322 141200-00- Gunzner Diatomite 500,000 Good Bridge/Terrebonn 01801 e Lower 324 141200-00- ODVA S & G 490,000 Good Bridge/Terrebonn 00702 e 326 141236-00- US Bank S & G 1.5 M Good 00300, 301 Trust 330 141328-00- Larry Davis Cinders 50,000 Good 00702, 703 331 141329-00- EA Moore Cinders 100,000 Good 00100, 103 332 141329-00- RL Coats Cinders 2 M Good Northwest 00102 Way/Terrebonne 333 141329-00- Robinson Cinders 2.7 M Good 00104 335 141333-00- 00890 Erwin Cinders 100,000 Excellent Pershall Way/Redmond 336 141333-00- US Bank Cinders 4.5 M Good Cinder 00400, 500 Trust Butte/Redmond 339 141132-00- Deschutes Dirt 200,000 Fill Goodard 01500 County Loop/Bend 341 161000-00- Young & S & G I M Good 00106 Morgan DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12LEGISLATIVE HISTORY Ord. 2020-013 Exhibit B # Taxlot Name Type Quantity* Quality Access/Location 342 220900-00- Crown Pacific Cinders 200,000 Good 00203 345 161000-00- Crown Pacific Cinders 50,000 Good 01000 346 161000-00- Crown Pacific Cinders 50,000 Good 01000 347 161 101-00- Deschutes Dirt 10,000 Good 00300 County I61 1 12-00- Innes Mktllnnes 351 01401, 1700, Gisler/Russell Cinders 150,000 Good Butte 2000 161 136-DO- 357 00100, 161 100- Tumalo Cinders I MJohnson 00-10400, Irrigation Road/Tumalo 10300 161 136-DO- 357 00100, 161 100- Tumalo S & G 500,000 Good 00-10400, Irrigation 10300 161 136-DO- 357 00100, 161100- Tumalo Pumice 500,000 Good 00-10400, Irrigation 10300 358 161231-DO- Gisler S & G 100,000 ODOT Hwy 20/Tumalo 01100 Specs 361 161222-CO- Oregon State Cinders 700,000 Good 02800 Hwy 366 161230-00- Oregon State S & G 40,000 ODOT 00000 Hwy Specs 368 161220-00- Bend S & G 570,000 Excellent Twin 00200 Aggregate Bridges/Tumalo Bend 370 161231-DO- Aggregate Storage 00400 Plant Site 379 181 100-00- Oregon State S & G 500,000 ODOT 01600 Hwy Specs 181 125-CO- 381 12600, 181 126- Pieratt Bros Cinders 50,000 Good 00-01600 390 181214-00- Deschutes Dirt 2 M Landfill 00500, 100 County 39 I 181221-00- Central OR Cinders 500,000 Good 00200 Pumice 392 181223-00- Rose Rock 10 M Est Mixed 00300 392 181223-00- Rose Dirt 7.5 M Good 00300 DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.11 GOAL 5 ADOPTED ORDINANCES Ord. 2020-013 Exhibit B # Taxlot Name Type Quantity* Quality Access/Location 393 181225-00- LT Cinders 12.5 M Good Arnold Mkt Rd/SE 01400 Contractors of Bend 394 181200-00- Windlinx Cinders 270,000 Coarse Hwy 97/South of 04400,04411 Bend 395 181200-00- Oregon State Cinders 100,000 Good 04300 Hwy 400 181300-00- Eric Coats S & G 2.5 M ODOT 04501,04502 Specs 404 191400-00- Moon S & G 1.3 M Good 00200 404 191400-00- Moon Rock 800,000 - 2 M Good Hwy 20/East of 00200 Bend 405 191400-00- Oregon State Aggregate 50,000 ODOT 00600 Hwy Specs 408 191600-00- RL Coats S & G 3 M Good 01500 413 201500-00- Deschutes S & G 30 Good/Ex Hwy 20/East of 01400 County ,000 cellent Bend 414 201500-00- Deschutes S & G 30 Good/Ex Hwy 20/East of 01500 County ,000 cellent Bend 415 201716-00- Deschutes S & G 30000 Good/Ex Hwy 20/East of 00700 County , cellent Bend 416 201716-00- Deschutes S & G 30000 Good/Ex Hwy 20/East of 00200 County , cellent Bend 417 201716-00- Deschutes S & G 30 Good/Ex Hwy 20/East of 00900 County ,000 cellent Bend 418 201716-00- Deschutes S & G 30 Good/Ex Hwy 20/East of 01000 County ,000 cellent Bend 419 201716-00- Deschutes S & G 30 Good/Ex Hwy 20/East of 01300 County ,000 cellent Bend 421 212000-00- RL Coats S & G 500,000 Excellent Hwy 20/Tumalo 00900 423 21 1 106-CO- Ray Rothbard S & G 100,000 Good 00700 426 21 1 100-00- La Pine Redi- S & G I M Good 00702 Mix 427 21 1 100-00- Bill Bagley S & G 40,000 Good 00701 431 221 100-00- Russell Cinders/ 12 M/ 1.2 M Good Finley Butte 00600 Rock 432 221 100-00- State of Cinders 160,000 Good 00500 Oregon 433 21 1300-00- La Pine Lump 10 M Excellent 00101 Pumice Pumice 441 150903-00- Willamette S& G II M Good 00300 Ind 442 150909-00- Willamette S & G 6 M Good 00400 Ind DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12LEGISLATIVE HISTORY Ord. 2020-013 Exhibit B # Taxlot Name Type Quantity* Quality Access/Location 443 150917-00- Willamette Rock 150,000 Fair 00600 Ind 453 161209, 10-00- Robert S & G 704,000 ODOT 00600, 301 Fullhart Specs :459 141 131-00- Deschutes Cinders 50,000 Good 05200 County 46 I �� f*1ela+� Sr Es 211,000 Dees not Meet GDO-T spee$ 46 Fes' 141200 irni Franklin N elan DiateH3ite �P4 Geed '' 465 141333-00- Oregon State Cinders 100,000 Good 00900 Hwy 466 141333-00- Fred Elliott Cinders 5.5 M Good 00600 467 141333-00- Knorr Rock Cinders 5 M Good 00601 Co 469 141 131-00- Deschutes Cinders 2 M Fair 00100 County 475 1510120 0 Deschutes Cinders 200,000 Good Cloverdale Road County 482 151300-00- Deschutes Dirt 2 M Good Negus Landfill 00103 County 161230-00- Bend ODOT 488 00100, 600, Aggregate S & G 400,000 2000, 2100 496 191400-00- Taylor S & G 1.8 M Mixed Hwy 20 00500 498 191400-00- Oregon State & G 200,000 ODOT 02200 HwyS Specs 499 191533-00- Oregon State S & G 50,000 ODOT 00200 Hwy Specs 500 191500-00- Oregon State S & G 130,000 ODOT 00099 Hwy Specs 50l 191500-00- Oregon State S & G 50,000 ODOT 01600 Hwy Specs 503 191600-00- Oregon State S & G 200,000 ODOT 01300 Hwy Specs 505 201600-00- Oregon State S & G 275,000 ODOT 00400 Hwy Specs 506 201600-00- Oregon State S & G 36,000 ODOT 00600, 700, 800 Hwy Specs 508 201700-00- State of S & G 100,000 ODOT 01000 Oregon Specs 515 201801-00- Oregon State S & G 100,000 ODOT 00100 Hwy Specs DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.11 GOAL 5 ADOPTED ORDINANCES Ord. 2020-013 Exhibit B # Taxlot Name Type Quantity* Quality Access/Location 522 21 1900-00- Oregon State S & G 300,000 ODOT 01000 Hwy Specs 524 212000-00- Oregon State S & G 300,000 ODOT 01900 Hwy Specs 528 2221 10-00- Oregon State S & G 45,000 ODOT 00600 Hwy Specs 529 221 100-00- Oregon State S & G 31000 , ODOT 00300 Hwy Specs 533 222100-00- Oregon State S & G I M ODOT 00800 Hwy Specs 141035-00- 02000, 2100, Inc Portions of TL 541 2200, 2300, Cyrus Aggregate 528,000 Good 1800/ 1900 2400, 2500, 2600 542 151001-00- Swarens Aggregate 80,000 Good 02700 543 151013-00- Cyrus Aggregate 1.1 M Good 00100 600 191400-00- Robinson S & G 3.8 M Good Hwy 20/East of 00700 Bend 601 21 1 100-00- La Pine Redi S & G 479,000 DEQ Paulina Lake Road 00700 Mix Specs * Quantity in cubic yards unless otherwise noted Source: 1979 Deschutes County Comprehensive Plan as revised DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12LEGISLATIVE HISTORY Ord. 2020-013 Exhibit B Table S.8.2 — Deschutes County Non -Significant Mining Mineral and Aggregate Inventory Site # Taxlot Name Type Quantity* Comments Whychus Creek 15-10-14-700 Irrigation Silt, sand, 200,000 cy Reservoir Size is 100 District— & dirt 80 acres. Watson Reservoir I. Whychus Creek 15-10-14-700 Irrigation sand & dirt 600,000 cy Reservoir size is 101 District— 40 acres. Watson Reservoir 11. Whychus Creek 14-1 1-33-500 Irrigation Silt, sand, 100,000 cy Reservoir size is 102 District— & dirt 12 acres McKenzie Reservoir Whychus Creek Irrigation Sand & 250 000 to Reservoir 103 14-1 1-33-500 District— dirt 300:000 cy expansion size is McKenzie 20 acres Reservoir Expansion * Quantity in cubic yards unless otherwise noted Source: 1979 Deschutes County Comprehensive Plan as revised DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.11 GOAL 5 ADOPTED ORDINANCES EXHIBIT C June 11, 2020 Parcel 1 of Partition Plat 1991-47, located in the West half of Section 16, Township 14 South, Range 12 East, Willamette Meridian, Deschutes County, Oregon, as per said Partition Plat filed as Survey CS O4248, Deschutes County Surveyor Records; Together with the following described land in the East half of Section 16, and in the Southeast Quarter of Section 9, Township 14 South, Range 12 East, Willamette Meridian, Deschutes County, Oregon, said land also being a portion of Parcel 3, Minor Land Partition, MP-80-96, filed as Survey CS 00169, Deschutes County Surveyor Records; Beginning at the North Quarter corner of said Section 16 as shown on said Minor Land Partition MP-80- 96, said North Quarter corner also being on the North line of said Parcel 3 of said Minor Land Partition M P-80-96; Thence along said North line of said Parcel 3 the following three courses; Thence North 39°46' East 375.00 feet; Thence North 47°20' East 300.00 feet; Thence South 73*20' East 631.85 feet; Thence leaving said North line, and along the approximate westerly "rim" of the Deschutes River canyon the following eight courses; Thence South 20°56'42" West 366.00 feet; Thence South 10"31'16" West 397.00 feet; Thence South 17°31'44" West 218.00 feet; Thence South 2°16'05" West 253.00 feet; Thence South 18°11'14" East 249.00 feet; Thence South 32'05'58" East 241.00 feet; Thence South 43°12'39" East 260.00 feet; Thence South 51°57'00" East 312.00 feet; Thence leaving said "rim" South 8°34'08" West 735.00 feet; Thence South 38°35'41" West 230.00 feet; Thence South 4°48'14" East 163.00 feet; Thence South 27°35'54" East 211.00 feet; Thence South 49°17'51" East 130.00 feet; Thence North 87°33'23" East 149.00 feet; Thence North 57°05'52" East 304.00 feet plus or minus to the centerline of Lower Bridge Road (Way) as it is now located; CONTINUED NEXT PAGE EXHIBIT C Thence Southerly and Westerly along said centerline of Lower Bridge Road (Way) as it is now located, to the South line of said Section 16; Thence Westerly along said South line, to the South Quarter corner of said Section 16, said corner also being the Southeast corner of Parcel 1 of Partition Plat 1991-47; Thence North 00°23'53" West 5333.11 feet along the East line of said Parcel 1 to the Point of Beginning. Excepting therefrom: That portion pf land deeded to Deschutes County in Deeds recorded June 19, 1978, Instrument No. 276- 272 and June 20, 1978, Instrument No. 276-330, Deschutes County Deed Records. REGISTERED PROFESSIONAL -yL ��y►D SURVEYOR fi e�&as�► OREGON JUNE 1, 19OB KEIW S. OAG0571NO Zeds RENEWAL DATE! 12-31-21 EXHIBIT C Ord. 2020-103 5ect�ow 5.22 l.ec��s�At�ve History Background This section contains the legislative history of this Comprehensive Plan. Table 5.1 1.1 Comprehensive Plan Ordinance History Exhibit E Ordinance Date Adopted/ Chapter/Section Amendment Effective All, except Transportation, Tumalo and Terrebonne 201 1-003 8-10-1 1/ 1 1-9-1 1 Community Plans, Deschutes Junction, Comprehensive Plan update Destination Resorts and ordinances adopted in 2011 2.5, 2.6, 3.4, 3.10, 3.5, Housekeeping amendments to 201 1-027 10-31-1 1 / 1 1-9-1 1 4.6, 5.3, 5.8, 5.1 1, 23.40A, 23.40B, ensure a smooth transition to 23.40.065, 23.01.010 the updated Plan 23.60, 23.64 (repealed), Updated Transportation 2012-005 8-20-12/ 1 1-19-12 3.7 (revised), Appendix C System Plan (added) 2012-012 8-20-12/8-20-12 4.1, 4.2 La Pine Urban Growth Boundary Housekeeping amendments to 2012-016 12-3-12/3-4-13 3.9 Destination Resort Chapter Central Oregon Regional 2013-002 1-7-13/ 1-7-13 4.2 Large -lot Employment Land Need Analysis Comprehensive Plan Map Amendment, changing 2013-009 2-6-13/5-8-13 1.3 designation of certain property from Agriculture to Rural Residential Exception Area Comprehensive Plan Map 2013-012 5-8-13/8-6-13 23.01.010 Amendment, including certain property within City of Bend Urban Growth Boundary Newberry Country: A Plan 2013-007 5-29-13/8-27-13 3.10, 3.1 1 for Southern Deschutes County DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.11 GOAL 5 ADOPTED ORDINANCES Ord. 2020-103 Exhibit E Comprehensive Plan Map 2013-016 10-21-13/ 10-21-13 23.01.010 Amendment, including certain property within City of Sisters Urban Growth Boundary Comprehensive Plan Map 2014-005 2-26-14/2-26-14 23.01.010 Amendment, including certain property within City of Bend Urban Growth Boundary 2014-012 4-2-14/7-1-14 3.10, 3.1 1 Housekeeping amendments to Title 23. Comprehensive Plan Map Amendment, changing designation of certain 2014-021 8-27-14/ 1 1-25-14 23.01.010, 5.10 property from Sunriver Urban Unincorporated Community Forest to Sunriver Urban Unincorporated Community Utility Comprehensive Plan Map Amendment, changing designation of certain 2014-021 8-27-14/ 1 1-25-14 23.01.010, 5.10 property from Sunriver Urban Unincorporated Community Forest to Sunriver Urban Unincorporated Community Utility Comprehensive Plan Map Amendment, changing 2014-027 12-15-14/3-31-15 23.01.010, 5.10 designation of certain property from Agriculture to Rural Industrial Comprehensive Plan Map Amendment, changing 2015-021 1 1-9-15/2-22-16 23.01.010 designation of certain property from Agriculture to Surface Mining. Comprehensive Plan Map Amendment, changing 2015-029 1 1-23-15/ 1 1-30-15 23.01.010 designation of certain property from Tumalo Residential 5-Acre Minimum to Tumalo Industrial 2015-018 12-9-15/3-27-16 23.01.010, 2.2, 4.3 Housekeeping Amendments to Title 23. DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12LEGISLATIVE HISTORY Ord. 2020-103 Exhibit E Comprehensive Plan Text and 2015-010 12-2-15/ 12-2-15 2.6 Map Amendment recognizing Greater Sage -Grouse Habitat Inventories Comprehensive Plan Map Amendment, changing 2016-001 12-21-15/04-5-16 23.01.010; 5.10 designation of certain property from, Agriculture to Rural Industrial (exception area) Comprehensive Plan Amendment to add an exception to Statewide 2016-007 2-10-16/5-10-16 23.01.010; 5.10 Planning Goal I I to allow sewers in unincorporated lands in Southern Deschutes County Comprehensive Plan Amendment recognizing non- 2016-005 1 1-28-16/2-16-17 23.01.010, 2.2, 3.3 resource lands process allowed under State law to change EFU zoning Comprehensive plan 2016-022 9-28-16/ 1 1-14-16 23.01.010, 1.3, 4.2 Amendment, including certain property within City of Bend Urban Growth Boundary Comprehensive Plan Map Amendment, changing 2016-029 12-14-16/ 12/28/ 16 23.01.010 designation of certain property from, Agriculture to Rural Industrial Comprehensive Plan Map Amendment, changing 2017-007 10-30-17/ 10-30-17 23.01.010 designation of certain property from Agriculture to Rural Residential Exception Area Comprehensive Plan 2018-002 1-3-18; 1-25-18 23.01, 2.6 Amendment permitting churches in the Wildlife Area Combining Zone DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION S. I I GOAL 5 ADOPTED ORDINANCES Ord. 2020-103 Exhibit E Housekeeping Amendments correcting tax lot numbers in Non -Significant Mining Mineral 2018-006 7-23-18/7-23-18 23.01.010, 5.8, 5.9 and Aggregate Inventory; modifying Goal 5 Inventory of Cultural and Historic Resources Comprehensive Plan Map Amendment, changing 2018-01 1 9-12-18/ 12-1 1-18 23.01.010 designation of certain property from Agriculture to Rural Residential Exception Area Comprehensive Plan Map Amendment, removing Flood 23.01.010, 2.5, Tumalo Plain Comprehensive Plan 2018-005 9-19-18/ 10-10-18 Community Plan, Designation; Comprehensive Newberry Country Plan Plan Amendment adding Flood Plain Combining Zone purpose statement. Comprehensive Plan Amendment allowing for the 2018-008 9-26-18/ 10-26-18 23.01.010, 3.4 potential of new properties to be designated as Rural Commercial or Rural Industrial Comprehensive Plan Map Amendment changing designation of certain property from Surface Mining 2019-002 1-2-19/4-2-19 23.01.010, 5.8 to Rural Residential Exception Area; Modifying Goal 5 Mineral and Aggregate Inventory; Modifying Non - Significant Mining Mineral and Aggregate Inventory Comprehensive Plan and Text 2019-001 1-16-19/4-16-19 1.3, 3.3, 4.2, 5.10, 23.01 Amendment to add a new zone to Title 19: Westside Transect Zone. DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12LEGISLATIVE HISTORY Ord. 2020-103 Exhibit E Comprehensive Plan Map Amendment changing designation of certain 2019-003 02-12-19/03-12-19 23.01.010, 4.2 property from Agriculture to Redmond Urban Growth Area for the Large Lot Industrial Program Comprehensive Plan Map Amendment changing designation of certain property from Agriculture to 2019-004 02-12-19/03-12-19 23.01.010, 4.2 Redmond Urban Growth Area for the expansion of the Deschutes County Fairgrounds and relocation of Oregon Military Department National Guard Armory. Comprehensive Plan Map Amendment to adjust the Bend Urban Growth Boundary to accommodate the refinement of the Skyline Ranch Road alignment and the 2019-01 1 05-01-19/05-16/ 19 23.01.010, 4.2 refinement of the West Area Master Plan Area I boundary. The ordinance also amends the Comprehensive Plan designation of Urban Area Reserve for those lands leaving the UGB. Comprehensive Plan Map Amendment, changing 2019-006 03-13-19/06-1 1-19 23.01.010, designation of certain property from Agriculture to Rural Residential Exception Area Comprehensive Plan and Text amendments incorporating language from DLCD's 2014 2019-016 1 1-25-19/02-24-20 23.01.01, 2.5 Model Flood Ordinance and Establishing a purpose statement for the Flood Plain Zone. DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.11 GOAL 5 ADOPTED ORDINANCES Ord. 2020-103 Exhibit E Comprehensive Plan and Text amendments to provide procedures related to the 2019-019 12-1 1-19/ 12-1 1-19 23.01.01, 2.5 division of certain split zoned properties containing Flood Plain zoning and involving a former or piped irrigation canal. Comprehensive Plan and Text amendments relating to 2020-001 1-8-20/4-20-20 23.01.01, 2.6, 3.5, 5.2 Religious Institutions to ensure compliance with RLUIPA. Comprehensive Plan Map Amendment to adjust the Redmond Urban Growth Boundary through an equal exchange of land to/from the Redmond UGB. The exchange property is being offered to better achieve land needs that 2020-002 2-26-20/5-26-20 23.01.01, 4.2, 5.2 were detailed in the 2012 SB 1544 by providing more development ready land within the Redmond UGB. The ordinance also amends the Comprehensive Plan designation of Urban Area Reserve for those lands leaving the UGB. Comprehensive Plan Amendment with exception to Statewide Planning Goal 11 2020-003 02-26-20/05-26-20 23.01.01, 5.10 (Public Facilities and Services) to allow sewer on rural lands to serve the City of Bend Outback Water Facility. DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12LEGISLATIVE HISTORY Ord. 2020-103 2020-013 8-12-20/ 1 1-24-20 123.01.01, 5.8 Exhibit E Comprehensive Plan Text And Map Designation for Certain Properties from Surface Mine (SM) and Agriculture (AG) To Rural Residential Exception Area (RREA) and Remove Surface Mining Site 461 from the County's Goal 5 Inventory of Significant Mineral and Aggregate Resource Sites DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.1 I GOAL 5 ADOPTED ORDINANCES Exhibit G Ord. 2020-013 REVIEW D LEG COUNSEL COUNTY NANCYUTES BLANKENSHIP,FFICIAL COUNTY CLERKDS ��I i009-i190 COMMISSIONERS' JOURNAL 05/07/2009 08:20:35 AM 1111111111111111111111111111111 2000-2290 DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS FILE NUMBERS: ZC-08-1, PA-08-1 LOCATION: The property is identified on the County Assessor's Tax Map as 14-12, Tax Lots 1501, 1502, 1503, part of 1505, and 1600. APPLICANT: The Daniels Group, LLC 1111 Main Street, Suite 700 Vancouver, WA 98660 OWNER: Norman L. Wiegand, et al. 895 SW 23rd St. Redmond, OR 97756 ATTORNEY /PLANNER: Tia M. Lewis Mark Rust, AICP Schwabe, Williamson & Wyatt, PC 549 SW Mill View Way, Suite 101 Bend, OR 97702 REQUEST: Comprehensive plan text and map amendment and zone change from Surface Mining to Rural Residential to allow redevelopment of extensively mined site. STAFF CONTACT: Will Groves, Senior Planner APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.52, Surface Mining 2. Chapter 18.60, Rural Residential zone * Section 18.52.200, Termination of the Surface Mining Zoning and Surrounding Surface Mining Impact Area Combining Zone 3. Chapter 18.136, Amendments * Section 18.136.020, Rezoning Standards 4. Chapter 18.116.Supplementary Provisions oC -20 09-168 ZC-08-1/PA-08-1 — BOCC Decision Document No. 2009-168 Page 1 of 38 Ord. 2020-013 Exhibit G * Section 18.116.220, Conservation Easements on Property Adjacent to Rivers and Streams Prohibitions. B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.20, Review of Land Use Action Applications * Section 22.20.040, Final Action in Land Use Actions C. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan 1. Chapter 23.100, Surface Mining D. Statewide Land Use Goals and Oregon Administrative Rules (OAR) Chapter 660 1. Division 12, Transportation Planning Rule (TPR) * OAR 660-12-0060, Plan and Land Use Regulation Amendments 2. Division 15, Statewide Planning Goals and Guidelines 3. Division 23-0180, Mineral and Aggregate Resources 11. FINDINGS OF FACT: A. Location: The property is identified on the County Assessor's tax map as 14-12, tax lots 1501, 1502, 1503, part of 1505, and 1600. Tax Lot 1501 has an assigned address of 70420 NW Lower Bridge Way, Terrebonne. B. Zoning and Plan Designation: The site is generally designated "Surface Mining" on the Comprehensive Plan Map, although the exact boundaries are unclear. The mine is included in the county's Goal 5 inventory of significant mineral and aggregate resource sites as Site 461. Tax lot 1501: 249.1 acres zoned Surface Mining (SM), including 9.8 acres in Landscape Management Combining Zone (LM) Tax Lot 1502: 188.1 acres zoned SM, including 82.3 acres zoned LM Tax Lot 1503: 64.4 acres zoned SM, including 64.4 acres zoned LM Tax Lot 1505: Only 42.1 acres of this 72.47 acre tax lot are subject to this application. The most southerly portion of this lot adjacent to Teater Road and zoned EFU is not subject to the proposed zone change. Tax Lot 1600: 10.6 acres total includes 9.6 acres of Exclusive Farm Use 1.0 acre zoned Flood Plain, 10.6 acres zoned LM, and 10.6 acres zoned SMIA C. Site Description: The 556.9 acre site is a geologically unique tract straddling Lower Bridge Way about 6 miles north of Terrebonne, as shown on the Site Map, submitted as Exhibit 1 and on the aerial photograph, submitted as Exhibit 2. To an observer driving ZC-08-1/PA-08-1 — BOCC Decision Page 2 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G Lower Bridge Way, the site is notable for the chalky white appearance of the exposed diatomite layers.' As illustrated on the submitted Site Map, the subject property includes Tax Lots 1501, 1502, 1503, 1505, 1600, but excludes the EFU-zoned portion of Tax Lot 1505 bordering Teater Road. There are two areas of the property that are marked by their historical uses and that are separated by the existing Lower Bridge Way. For ease of reference, these areas are referred to as the area East of Lower Bridge Way and the area West of Lower Bridge Way. The subject property can be also divided into five geographic regions based on topography and geology: eastern, northern, Deep Canyon, western, and central. The land includes four general landscape types: quarry operations (old and recent), hills/buttes (natural and formed), plains (unmined, mostly natural vegetation), and canyons and drainages (natural vegetation, unmined). The eastern region includes tax lot 1503 and 1505, is east of Lower Bridge Way, and extends east along a steep slope, descending approximately 100 feet to the Deschutes River. Except for the slope of the river canyon, the eastern region is generally level and covered with overburden rock apparently removed from the former diatomite mining operations. The river is lined with wetlands depicted on the National Wetlands Inventory Cline Falls map. This area had little mining activity and was primarily used for a staging area. The northern region includes tax lots 1501 and 1600, stretches west along the river from Lower Bridge Way to Deep Canyon, then south along the southern rim of Deep Canyon. The ground is relatively level, except for steep canyons that reach down to the Deschutes and Deep Canyon. North of the diatomite mining area is a relatively undisturbed "plains" landscape with mature juniper. The subject property is separated from the river in this area by Tax Lot 14-12 1509, owned by the Oregon Parks and Recreation Department. Deep Canyon is primarily located on tax lot 1501, and is a small canyon with a spring and a seasonal pond that drain to the Deschutes River. Two unimproved roads cross the canyon. Across the northern bridge is the western region, a flat area formerly mined for diatomite. The central region, includes tax lots 1501 and 1502, and is a quarry landscape. This region comprises about half of the subject property. A thick diatomite layer and stockpiles make up much of this area, which is accessible only with an all - terrain vehicle. This section of subject property is traversed by several unimproved roads. The area was extensively mined for diatomite, and several derelict buildings, including a former processing building, water tower, pump house, concrete foundations, settling ponds and miscellaneous debris piles remain. The applicant has drilled a well in ' The site has been mined for several materials, including aggregate, sand and diatomaceous earth. Most of the aggregate and sand on the site have been removed, and the area containing those materials have been reclaimed. The diatomaceous earth is described as "a chalky rock, high in amorphous silica content formed from the structures (or diatomite) of tiny fresh- or salt -water organisms called diatoms." ' The applicant argues that the vast majority of the site does not contain agricultural soils and therefore a Goal 3 exception is not needed. The Board agrees. ZC-08-1/PA-08-1 — BOCC Decision Page 3 of 38 Document No. 2009-168 Exhibit G Ord. 2020-013 this area, and has installed a pivot sprinkler, which is being used to control dust and provide water for irrigation to revegetate the area with native grasses and shrubs. The applicant proposes to remove the remaining derelict structures. This reach of the Deschutes River, which forms the east and northeast boundary of the site, is designated as a Federal Wild and Scenic River and an Oregon Scenic River. A steep bank limits pedestrian access to the river. However, the river is accessible from Lower Bridge Way, and from the public park near the bridge. D. Soils: Approximately 80% of the soils on the site are defined as Class VII and VIII. Steve Wert, a consulting soil scientist, visited the site and conducted preliminary research of the soils present on the site. His findings are summarized in a letter dated October 4, 2006: "According to NRCS maps, the great majority of the property does not even have a "soil type," but is classified as a "land type" called "Unit 97" which is rock and gravel pits. Unit 97 is rated Class VII and VIII, and NRCS will stand by that rating." However, not all of the property is class VII or VIII. The following table summarizes soils data by tax lot. ZC-08-1/PA-08-1 — BOCC Decision Page 4 of 38 Document No. 2009-168 Ord. 2020-0113 Exhibit G Approximate Acreage of Soil Type by Tax Lot Tax Lot NRCS Land / Soil Approximate Zoning Soil Type Classes acreage 2 1501 97 7 & 8 159 acres SM, SMIA, LM 81 F 7 & 8 24 acres 249.1 acres 138A 6, not prime 48 acres (central 138B 6, not prime 1.1 acres /western) 71A 6, prime if 12.2 acres 71 B irrigated 1.8 acres 31 A 6, prime if 3.3 acres irrigated 6, prime if irrigated 1502 97 7 & 8 160 acres SM, SMIA, 188.1 81 F 7 & 8 9 acres LM, FP Acres 138A 6, not prime 19 acres central 1503 97 7 & 8 42 acres SM, SMIA, 64.4 31 B 6, prime if 18 acres LM, FP, EFU acres 71A irrigated 3.4 acres (eastern) 6, prime if irrigated 1505 97 7 & 8 39 acres SM, SMIA, 41.2 81 F 7 & 8 2 acres LM, FP acres eastern 1600 138A 6, not prime 8.2 acres SMIA, FP, 10.6 acres 81 F 7 & 8 2.4 acres EFU northern TOTAL 7 & 8 79 % = 438 acres 553.4 6, not prime 14% = 76 acres acres 6, prime if 7% = 39 acres irrigated E. Surrounding Zoning and Land Uses: This section describes zoning and land uses within a 2-mile radius of the center of the subject property. Surrounding zoning in the area of the subject property includes Exclusive Farm Use —Lower Bridge (to the north, west and south), Exclusive Farm Use-Terrebonne (to the east and further to the south), Surface Mining (to the northeast), Rural Residential (to the east and southeast) and Flood Plain associated with the Deschutes River. The Landscape Management combining zone extends along the Deschutes River. The subject property is predominantly surrounded by active agricultural lands, as shown in the 2008 Google Earth aerial photo included in the record. The surface mining zoned land to the northeast appears to be in agricultural production. Properties to the west and southwest and east are sparsely developed with rural residences. Most of the dwellings in the immediate area have been constructed within the last 25 years. Within a 3-mile radius there are nearly 700 parcels with over 400 residences. ZC-08-1/PA-08-1 — BOCC Decision Page 5 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G F. Mining History: The subject property has a long, inconsistently documented mining history. Diatomite mining began on the property prior to the 1920s. Large scale production began in 1936. The Great Lakes Carbon Company mined the property from 1944 to 1961. The mining history between 1966 and 1980 is unclear; however, it appears the diatomite extraction occurred primarily on the western portion of the site. The Oregon Department of Geology and Mineral Industries (DOGAMI) file for this site begins in 1980. That file indicates that multiple companies have mined the site, mostly for diatomite but also for aggregate. Although multiple mining permits were issued over the years, various companies were cited for violating environmental laws, mining permits, or operating without permits. By 1980 Deschutes Valley Farms owned the site and leased it to Northwest Diatomite. In January 1982, DOGAMI exempted Mid -Oregon Ready Mix from reclamation requirements because the land was a mined prior to the effective date of the reclamation rules. Mid -Oregon Crushing and Mid -Oregon Ready Mix were extracting aggregate by 1985. Various diatomite and gravel extraction activities occurred in the subsequent years. By 1994, E.A. Moore was extracting, screening and crushing gravel on the eastern portion of the site. Several DOGAMI inspections occurred over the years, which found reclamation plans being implemented. By 2006, DOGAMI was ready to close the file on the site. A Limited Exemption Closure Plan was submitted in late July, 2006. On July 31st DOGAMI closed the file on the site. Due to incomplete DOGAMI records and an apparent history of unpermitted mining, the total quantity of aggregate and mineral removed from the site during over 80 years of mining is unclear. G. Zoning History: In 1985, 339 acres of the subject property was rezoned from Surface Mining Reserve to Surface Mining. The applicants apparently anticipated that diatomite mining would become economically viable again because a processing plant was being constructed in Malheur County, which would enable the applicant to export it. The Hearings Officer found that there was little local demand for diatomite, but that export of the product after off -site processing partially justified the rezone. In 1988, the Deschutes County Goal 5 Aggregate Inventory identified the site as an aggregate resource (as opposed to a mineral resource, which includes diatomite) of 350,000 cubic yards. In the ESEE analysis for site 461, the Board identified the key values that form the basis for the application of SM zoning to the mine site. These include the importance of aggregate resources to development in Deschutes County, the value to the County economy terms of materials and jobs, the presence of an estimated 350,000 cubic yards of aggregate on the site, and that the site is located near a major roadway for highway maintenance and construction jobs. Relevant Previous Land Use Decisions: CU-74-156 — This record contains plan information for a solid and liquid waste disposal site on the subject property. It appears that this application was approved, as solid and liquid waste storage occurred on a portion of property located West of Lower Bridge Way. A variety of wastes, including hazardous wastes were stored on the western portion of the site and subsequently removed. This is discussed more fully later in the findings. ZC-08-1/PA-08-1 — BOCC Decision Page 6 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G MP-80-96 — Divided modern tax lots 1503 and 1505, as Parcel 2, and 1506, as Parcel 3 from the remainder of the mining site. ZC-85-3 - A zone change from surface mining reserve to surface mining on tax lots 1501, 1502, 1600, and 704. Condition 3 of this decision required a reclamation plan. SP-85-23 — A site plan to allow surface mining, aggregate mining, and rock crushing on tax lots 1501, 1502, 1600, and 704. This decision included reclamation specifications attached as Exhibit C to the Hearings Officer Decision for SP-85-23, but materials are missing from the record, including any map of the subject area and the updated reclamation plan required by Condition 1. The applicant submitted testimony and evidence demonstrating the area covered by the reclamation requirements for SP-85-23 encompasses an 18-acre area just north of Lower Bridge Way and west of the site access road off Lower Bridge Way. Compliance with a County approved reclamation plan is made a condition of this approval as discussed further herein. ESEE Analysis #461 — On October 24, 1989 the Board of County Commissioners rezoned the remainder of the site (comprised of modern tax lots 1501, 1502, 1503, and 1507) to SM. This decision contains information about the quality and quantity of aggregate and mineral resources on the property. MP-90-74 — Divided historic tax lots 1501, 1507 and 1508 into two legal lots of 66 and 254 acres. All of the above files are incorporated into this record by reference. H. Proposal: The applicant requests approval of a plan amendment to change the designation of the subject property from Surface Mine (SM) and Agriculture (AG) to Rural Residential Exception Area (RREA) and to remove Surface Mining Site 461 from the county's Goal 5 inventory of significant mineral and aggregate resource sites. The applicant also requests approval of a zone change from SM and EFU-LB to RR-10 for the subject property. The removal of the SM zoning on the subject property also would remove the existing Surface Mining Impact Area Combining Zone (SMIA) zoning on property located within one-half mile of the SM Zone. The site map submitted as Applicant's Exhibit 1 depicts areas presently zoned Flood Plain (FP) as part of this rezoning proposal. Discussions with the applicant have clarified that this proposal is not intended to rezone FP zoned lands. Public/Private Agency Comments: The Planning Division mailed notice to several agencies and received written comments and oral testimony in response. The agency responses are summarized in the staff report, in this Decision, or are included in the record. To the extent the comments pertain to the applicable approval criteria, they are addressed in the findings. Certain agency comments that relate to conditions of approval are discussed below. Oregon Department of Human Services, Environmental Health Assessment Program (EHAP): In a document received October 23, 2008, EHAP made the following recommendations regarding management and development of the site were made: ZC-08-1/PA-08-1 — BOCC Decision Page 7 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G Dilapidated buildings and piles of scrap wood and metal should be removed. In the meantime, the public should stay off the property and children and teens should be prevented from accessing the area. Soil sampling and air monitoring should be conducted in order to analyze them for cristobalite (crystalline silica) content and particulate matter size (PM2.5). Continue efforts to control dust, and include dust suppression plans for any future activities. If future zoning of the site changes to residential, site owners should: Consult with EHAP to develop a comprehensive site -sampling plan that would address issues raised in the report. In oral testimony provided at the December 17, 2008 hearing, David Farrar of EHAP stated that the existing EHAP evaluation of environmental conditions at the site only dealt with the present use of the property. Mr. Farrar recommended that the landowner obtain a letter of "No Apparent Public Health Hazard" from EHAP for the site prior to residential use. This would require additional environmental sampling and cleanup of any identified environmental concerns. Oregon Department of Environmental Quality (DEQ): In correspondence dated December 9, 2008, DEQ stated that the site has currently only been evaluated with respect to environmental safety for its current use as a mine and an industrial property. In prior correspondence, DEQ supported a rezone of the site from industrial to residential use, which would require a re-evaluation of the site for residential use. The re-evaluation of the site, applicable exposure routes, and pathways may result in some scenarios requiring deed restrictions, active cleanup and/or monitoring. Following a cleanup of any identified environmental concerns, DEQ could issue a "No Further Action Letter" (NFA) or equivalent for residential use. J. Public Notice and Comments: The Planning Division mailed individual written notice of the applicant's proposal and the public hearing to the owners of record of all property located within 750 feet of the subject property. In addition, notice of the public hearing before the Hearings Officer was published in the Bend Bulletin, and the subject property was posted with a notice of proposed land use action sign on February 2, 2008. Numerous residents submitted written testimony and evidence, and provided oral testimony at the public hearing. The residents identified concerns regarding dust (including health concerns specific to diatomite dust), chemical contamination of the site, radiological contamination of the site, site reclamation, traffic impacts, aesthetic impacts of the existing mine and structures, water quality, water rights, and aesthetics of future development. Public comments have also questioned if a new ESEE analysis or Goal 5 exception would be required. These comments are more fully addressed in the findings below. K. Lot of Record: The applicant submitted evidence regarding the status of the tax lots incorporated into these applications. The evidence shows that the property is comprised of legal lots of record created through deed or partition. L. Procedural History: On August 6, 2008, the Hearings Officer issued a decision denying the subject application. Section 22.28.030(C) requires: "[Z]one changes ... concerning lands designated for forest ... use shall be heard de novo before the Board ZC-08-1/PA-08-1 — BOCC Decision Page 8 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G of County Commissioners without the necessity of filing an appeal, regardless of the determination of the Hearings Officer[.]" Pursuant to that section, the Board held a de novo public hearing on the subject application on December 3, 2008. The hearing was continued to December 17, 2008 and again to December 29, 2008. The entire record of the proceeding to date was placed before the Board at the public hearing, and the Board closed the record at the conclusion of the December 29, 2008 hearing. At this hearing, the Board deliberated and voted to approve the subject application and to adopt the Hearings Officer's findings and conclusions, as revised and supplemented herein. III. CONCLUSIONS OF LAW: PLAN AMENDMENTS The applicant requests the following: (1) approval of a plan map amendment from Surface Mining and Agriculture to Rural Residential Exception Area, and (2) removal of Surface Mining Site 461 from the county's Goal 5 inventory of significant mineral and aggregate resource sites. The county plan and development code do not set out a process for quasi-judicial amendments to the plan map and text. Rather; the county relies on consistency with the Statewide Land Use Goals and ORS 197.610 through 197.625 (post -acknowledgement plan amendment procedures) to provide both the process and the substantive review criteria. Those criteria are addressed in Section C. While there are no substantive approval criteria in the plan, it is useful to review the plan designation history of the subject property, and address the parties' arguments regarding plan policies at the onset. 1. Plan Designation History. In the late 1980s the county undertook a lengthy process to inventory its mineral and aggregate resources, to develop a plan to preserve and protect those resources, and to amend the county's comprehensive plan and zoning ordinance to adopt the inventory and measures to protect sites. These plans were adopted through several ordinances and included listing Site 461 on the inventory of significant sites, adoption of a site -specific ESEE (Economic, Social, Environmental and Energy) analysis for Site 461, and adoption of ordinances designating the subject property for surface mining, on October 24, 1989. 2. Current Plan Designation. The subject property is currently designated SM and AG (Tax lot 14-12 1600 only). 3. Applicable Comprehensive Plan Provisions. The following plan policies are relevant to the proposed plan amendment from Surface Mining and Agriculture to Rural Residential Exception Area. A. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan 1. Chapter 23.24, Rural Development Section 23.24.020, Goals. ZC-08-1/PA-08-1 — BOCC Decision Page 9 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G A. To preserve and enhance the open spaces, rural character, scenic values and natural resources of the County. FINDINGS: The subject property is a former mine site which is exempt from most reclamation or other regulatory requirements requiring any revegetation. As a result, it has little vegetation and approximately 350 acres of the site consists of exposed diatomite which can create dust during large wind events. The proposed plan amendments by themselves will not alter open spaces, scenic values, or spoil rural character, but instead will create an opportunity to redevelop and mitigate existing adverse conditions of the site following historical mining and industrial operations. The present condition of the site adversely affects the scenic value of the area with rusting structures and extensive unrevegetated mined areas. Any future development, not included in this application, would be required to conform to development standards for Rural Residential (RR-10) zoned lands, that are designed to preserve and enhance the open spaces, rural character, and scenic values of the County. Moreover, future development of any structures in the LM zone will be subject to individual site plan review to ensure the protection of the scenic values associated with the Deschutes River. Some neighbors commented that the proposal is inconsistent with this policy because a future planned development proposal could cluster dwellings along the top of the riverbank. The neighbors asserted that clustered residential development is inconsistent with the local residential development pattern, and therefore a more appropriate zoning designation is EFU- 20. The Board agrees with the Hearings Officer on this issue and finds that the unrefuted evidence shows that the site does not contain agricultural soils. The proposed RR-10 zoning designation would maintain the residential density that occurs within the area, and if a planned unit development is proposed, the layout of the lots can be arranged to minimize their visual impacts on neighboring property owners. The removal of Site 461 from the County's surface mining inventory would preclude access to diatomaceous earth and aggregate materials on the site. The applicant has argued that there is insufficient remaining aggregate to economically extract, and there is little need for diatomite in modern industrial manufacturing. Neighbors dispute this finding, arguing that there are viable industrial uses for diatomite, and that the applicant's present desire to convert the land to residential use does not alter the significance of the site for diatomite production. These issues are discussed in greater depth below. B. To guide the location and design of rural development so as to minimize the public costs of facilities and services, to avoid unnecessary expansion of service boundaries, and to preserve and enhance the safety and viability of rural land uses. FINDINGS: The applicant argues that the proposal is consistent with this goal because a future developer, and not the public, will bear costs of extending facilities to the property. Opponents disagree that the extension of public services is the only consideration under this goal, arguing that it also requires a showing that the proposed rural residential uses "preserve and enhance the safety and viability of rural land uses." Opponents argue that unless reclamation and remediation measures are included in this approval, neither the neighbors nor the future residents of the site can be assured that the site is safe for development or that development on their properties will remain viable. Public Facility/Service Availability and Capacity ZC-08-1/PA-08-1 — BOCC Decision Page 10 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G This goal requires the county to thoughtfully consider development locations to minimize urban sprawl and to ensure that public facilities and infrastructure are adequate to accommodate anticipated development. This includes consideration of service availability and capacity. Low density residential development allowed in the RR-10 zone does not require urban services such as sewer and water, as those needs can be served by on -site systems. Service boundaries will not be expanded. Public services, such as police and fire, already serve the area. With respect to these facilities and services, the proposed redesignation will have little to no effect. The site borders on Lower Bridge Way, a publicly maintained county road. The applicant's traffic study concludes the intersection of Lower Bridge Way/U.S. 97 will not meet either the performance standards of Deschutes County or ODOT with or without this development. There is an ODOT project going to bid this Spring to reconfigure the Lower Bridge Way/Highway 97 intersections. This improvement will increase safety but not necessarily capacity at this intersection. Based on the evidence submitted by the applicant, including the traffic studies and the evidence of historical use as discussed further herein and incorporated by references, the Board finds that the traffic likely to be generated by development uses allowed under the current zoning is equal to or greater than the traffic likely to be generated under the proposed residential zoning. Therefore, the proposal should have no significant impact on the transportation facilities. See the discussion below for DCC 23.60.610. The Board further finds that Code criteria in the subdivision and conditional use chapters will allow the imposition of conditions requiring transportation facility improvements prior to or contemporaneous with subdivision or cluster development approval. Both the subdivision and conditional use processes require notice.and an opportunity for full public participation. "To Preserve and Enhance the Safety and Viability of Rural Land Uses" As noted above, opponents argue that before this site is rezoned for rural residential uses, the applicant must demonstrate that it is safe for those residential uses, and that the safety of other local uses, including residential and agricultural uses are preserved and/or enhanced. The neighbors expressed concerns that hazardous wastes from mining activities since 1985 have not been adequately addressed, and that the 1984-85 remediation and removal of hazardous and radioactive wastes were inadequate. Further, the neighbors argue that the applicant has not yet demonstrated that there is sufficient water to accommodate the proposed site reclamation and provide domestic water for the number of dwelling units that could be developed on the property. In addition, the neighbors argue that there is no evidence that the applicant will take steps to address water contamination from the remaining mining materials. Finally, the neighbors insist that this site will not be safe for residential use or preserve the viability of existing rural residential uses in the area until the diatomite is fully contained. Given the environmental history of the site, the Board finds that the rezoning the property for residential use, prior to establishing that the site is safe for residential use, will not preserve and enhance the safety and viability of rural land uses. However, in previous County decisions, it has been held that, absent a comprehensive plan amendment, comprehensive plan goals and policies do not constitute mandatory approval criteria for quasi-judicial zone changes, but rather are implemented through the zoning ordinance, and therefore if the proposed zone change is consistent with the applicable provisions of the zoning ordinance, it also will be consistent with the plan. While not required under this Comprehensive Plan Goal, findings and relevant conditions of approval intended to establish that the site is safe for residential use prior to development are set forth under DCC 18.136.020, as discussed below. ZC-08-1/PA-08-1 — BOCC Decision Page 11 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G The Board agrees with the Hearings Officer that the proposed map designation is consistent with other rural residential zoning in the area. In addition, if the mineral and aggregate resources are no longer needed/available, the site cannot be put to resource use. It includes few agricultural and no forest soils, and there is no dispute that the former mine site is not suitable for farm or forest activities. In addition, permitting rural residential development on the property will certainly be more compatible with neighboring residential uses than mining. Particular development concerns, including water quality and quantity, and dust suppression can be addressed in conjunction with a particular development plan for the site. Based on the above, the Board finds that the proposal, as conditioned under DCC 18.136.020, is consistent with this goal. C. To provide for the possible long-term expansion of urban areas while protecting the distinction between urban (urbanizing) land and rural lands. FINDINGS: The unincorporated community of Terrebonne is located approximately seven miles southeast of the site. The proposed zone change and plan amendment would not preclude the possible long-term expansion of the community boundaries, although such expansion to the subject property is not foreseeable at this time. Any future development, not included in that application, would be required to conform to development standards for Rural Residential (RR-10) zoned lands, that are designed to protect the distinction between urban (urbanizing) land and rural lands. Section, 23.24.030, Policies. Residential/recreational development. 1. Because 91 percent of the new County population will live inside an urban area, with only 3,039 new rural lots required, and in light of the 17,377 undeveloped rural tracts and lots as well as the energy, environmental and public service costs, all future rural development will be stringently reviewed for public need before approval. As a guideline for review if a study of existing lots within three miles of the proposed development indicates approximately 50 per cent or more of those lots have not had structures constructed thereon, then the developer shall submit adequate testimony justifying additional lots in that area. This will permit development in areas where such is needed (other policies considering energy, public facilities, safety and other development aspects shall also be considered) while restricting future division in areas where many undeveloped lots already exist. FINDINGS: The Hearings Officer found that it was not entirely clear whether this policy pertains to a proposal to rezone property from SM to RR-10, as a rezoning is not "development' per se, and development of this site will require further review. The evidence in the record demonstrates the proposal is consistent with this policy based on staffs analysis of existing lots within three miles of the subject property. That analysis, set forth below, shows approximately 58 percent of those lots have been developed with structures: Zone Parcels Parcels with at least one structure EFUTE 92 33 ZC-08-1JPA-08-1 — BOCC Decision Page 12 of 38 Document No. 2009-168 Exhibit G Ord. 2020-013 EFUSC 16 3 EFULB 113 54 MUM 0 388 292 RR10 75 23 SM 9 0 Total 1693 405 5807/6 The Board finds the proposal is consistent with this policy, and therefore the applicant does not need to submit additional justification_for the requested zone change. 2. Chapter 23.60, Transportation a. Section 23.60.010, Transportation * * * The purpose of DCC 23.60 is to develop a transportation system that meets the needs of Deschutes County residents while also considering regional and state needs at the same time. This plan addresses a balanced transportation system that includes automobile, bicycle, rail, transit, air, pedestrian and pipelines. It reflects existing land use plans, policies and regulations that affect the transportation system. FINDINGS: This goal is implemented through the provisions of DCC 17.16.115(I)(1) and (2), and the TPR. As noted below, the proposal is consistent with both the county development code and the TPR because the re -designation will not significantly affect a transportation facility. 3. Chapter 23.68, Public Facilities a. Section 23.68.020, Policies 1. Public facilities and services shall be provided at levels and in areas appropriate for such uses based upon the carrying capacity of the land, air and water, as well as the important distinction that must be made between urban and rural services. In this way public services may guide development while remaining in concert with the public's needs. 3. Future development shall depend on the availability of adequate local services in close proximity to the proposed site. Higher densities may permit the construction of more adequate services than might otherwise be true. Cluster and planned development shall be encouraged. 9. New development shall not be located so as to overload existing or planned facilities, and developers or purchasers should be made aware of potentially inadequate power facilities in rural areas. ZC-08-1/PA-08-1 — BOCC Decision Page 13 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G FINDINGS: These policies address public facilities and services that may be needed to serve residential uses on the site.3 With the exception of the local road system, future development is unlikely to overload existing or planned public facilities. Concerns regarding transportation facilities are discussed below. The existing rural residential development in the area indicates that public facilities and services are available. Future development of the property can be served by private wells and septic systems. Utility lines and facilities can be located so as not divide any existing farm units. 4. Chapter 23.88, Agricultural Lands Section 23.88.020, Goal. To preserve and maintain agricultural land. FINDINGS: As noted above, this proposal would result in the conversion of approximately 39 acres of "high value if irrigated" farmland to rural residential use.4 However, the subject property does not have potential for long term irrigation. Impacts imposed on agricultural uses by adjacent residential uses typically include vandalism, trespassing, disturbance to livestock, and dust. However, development of the project is likely to result in better dust suppression, to the benefit of nearby agricultural operations. Overall, the Board concludes that the proposal is consistent with these policies because it absorbs some of the pressure to develop on agricultural lands. a. Section 23.88.030, Zoning Policies. 1. All lands meeting the definition of agricultural lands shall be zoned Exclusive Farm use, unless an exception to State goal 3 is obtained so that the zoning may be Multiple Use Agriculture or Rural Residential. 2. Lands not meeting the agricultural lands definition but having potential for irrigation according to the Bureau of Reclamation Special Report - Deschutes Project, Central Division, Oregon, although presently without water, shall receive exclusive farm use zoning. FINDING: As explained at length below, the subject property, as a whole, is not "agricultural land." The property does not have potential for long-term irrigation according to the Bureau of Reclamation Special Report - Deschutes Project, Central Division, Oregon. A. OAR 660, Division 33, Agricultural Land. 660-033-0020 (1)(a) "Agricultural Land" as defined in Goal 3 includes: (A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as predominantly Class I -IV soils in Western Oregon and I -VI soils in Eastern Oregon; (B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), taking into consideration soil fertility; suitability for ZC-08-1/PA-08-1 — BOCC Decision Page 14 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G grazing; climatic conditions; existing and future availability of water for farm irrigation purposes; existing land use patterns; technological and energy inputs required; and accepted farming practices; and (C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands. (D) Land in capability classes other than I-IV/I-VI that is adjacent to or intermingled with lands in capability classes I-IV/1-VI within a farm unit, shall be inventoried as agricultural lands even though this land may not be cropped or grazed; FINDINGS: The threshold inquiry for determining whether land is "agricultural" is whether the soils are predominately class I -VI. Miles v. Bd. of Comm. of Clackamas County, 48 Or App 951, 955, 618 P2d 986 (1980); Flury v. Land Use Bd. of Appeals, 50 Or App 263, 267 (1981). The evidence demonstrates that the subject property does not qualify as either high value agricultural or forest land. Soil studies conducted by Wert & Associates confirm that approximately 20% of soils are class Vl; in fact only 5% of those are considered high value with irrigation. Staff reaches a similar conclusion, estimating that approximately 21 % of soils are class VI, and only 7% of those are considered high value with irrigation. The record demonstrates the subject property is not irrigated and is not necessary to permit farm practices on adjacent agricultural lands, and the soils are not intermingled with agricultural soils within a farm unit. The Forage Report concludes that the property "is not suited for profitable, accepted agricultural use." Because a vast majority of the property contains class VII & Vill soils, and the poorer soils are not intermixed with higher class soils within an existing farm unit, it falls outside of the default category of "agricultural lands" set out in Goal 3 and OAR Chapter 660, division 33. The Hearings Officer noted that the site was originally designated for Surface Mining in the county's comprehensive plan and zoned Surface Mining Reserve. The site was rezoned SM in the 1985. The Board agrees with the Hearings Officer that the evidence in the record shows that the only "resource" designation on this site is for mining, a Goal 5 use, and not farm or forest, Goal 3 and 4 uses, respectively. For these reasons, the Board agrees with the Hearings Officer and finds that subject property does not constitute "agricultural land" as defined in Goal 3, is not subject to protection under Goal 3, and therefore the proposed plan amendment and zone change do not require an exception to Goal 3. B. OAR 660 Division 6 Goal 4 Forest Land. Goal 4 defines "forest land" as follows: Forest lands are those lands acknowledged as forest lands as of the date of adoption of this goal amendment. Where a plan is not acknowledged or a plan amendment involving forest lands is proposed, forest land shall include lands which are suitable for commercial forest uses including adjacent or nearby lands which are necessary to permit forest operations or practices and other forested lands that maintain soil, air, water and fish and wildlife resources. FINDINGS: The subject property is not and never has been zoned for forest use. The detailed soil study prepared by Steve Wert included an analysis of the subject property's soils for production of merchantable tree species, and shows the soil units identified on the subject ZC-08-1 /PA-08-1 — BOCC Decision Page 15 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G property are not listed in the NRCS' Woodland Productivity soils table, and therefore are not considered suitable for the production of wood crops by the NRCS. Finally, the record indicates the predominant tree species on the property are juniper trees which historically have not had commercial value and have not been harvested commercially either on the subject property or on nearby lands. Accordingly, OAR Chapter 660, division 6 does not apply. 5. Chapter 23.96, Open Space, Areas of Special Concern, and Environmental Quality a. 23.96.020, Goals. 1. To conserve open spaces and areas of historic, natural or scenic resources. FINDINGS: The site abuts the Deschutes River, a designated federal Wild and Scenic River and Oregon Scenic River. The river and property abutting it are subject to the Landscape Management Combining Zone and that designation will not change with the proposed designation to Rural Residential Exception Area. To the extent that rural residential development may affect open spaces and areas of historic, natural or scenic resources, the Board finds that the proposed designation will better preserve those resources than the existing mining designation. For instance, much of the mined area on the site is exempt from reclamation. Unless the site is put to some other use, the existing conditions will remain. In addition, the density standards for the proposed RR-10 zoning will ensure that development on the site will be low density and will preserve significant areas of open space on the property, particularly if the site is developed with a PUD. Therefore, the Board concludes that the proposal is consistent with this policy. 2. To maintain and improve the quality of the air, water and land resources of Deschutes County. FINDINGS: As noted above, the majority of the site, primarily west of Lower Bridge Way, has a long history of industrial use, and some of those uses have resulted in significant environmental impacts. Those impacts include dust from the diatomite, hazardous and radioactive waste disposal and remediation, and violations of environmental quality regulations. Neighbors expressed concerns regarding the impact of the proposal on water quantity and quality, arguing that the water needed to reclaim the site will adversely affect the area's water supply. Those issues are addressed as follows: Diatomite dust. According to the applicant, the exposed diatomite on the western portion of the property is from fresh -water diatoms. The applicant supplied testimony and evidence that shows that fresh -water diatomite contains a smaller percentage of crystalline silica, the type of silica that has been identified as a health hazard if inhaled in quantity. The applicant argues that this type of diatomite poses no more risk than other dust in the area. The applicant also argues that before this site is redeveloped for residential uses, the diatomite will be graded and seeded to prevent dust from blowing from the site to neighboring properties. The neighbors expressed ZC-08-1/PA-08-1 — BOCC Decision Page 16 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G reservations about this assertion, arguing that the cost and feasibility of that type of reclamation is unlikely to be recouped as part of development on this site.5 The evidence shows that blowing dust has been an issue for many years, although recent grading activities exacerbated the situation. The recent activities led the Department of Environmental Quality (DEQ) to issue a notice of violation. In response to the notice, the owners obtained a temporary water permit, purchased mitigation credits, installed a pivot and began using an existing well to water a portion of the site to minimize dust. The applicant is also proposing to implement best management practices to ensure that blowing dust during development is minimized. These measures are adequate to assure that local air quality is maintained. Water auaiity/quantity. According to the evidence in the record, seven wells have been drilled on the site. These wells are proposed to be used for dust suppression, and may be converted to domestic wells in the future. The applicant proposes to develop individual, shared or group wells (serving up to three lots) as part of its residential development. The residents may use up to 15,000 gallons per day for domestic and yard irrigation (up to one-half acre) and remain exempt from water rights regulation. Similarly, wells developed to serve three or fewer dwellings are exempt from water quality standards. Neighbors expressed concerns regarding potential water contamination from past industrial uses, and also argue that the introduction of 17 or more new wells (assuming 72 dwelling units, and at least one well per three dwelling units minus the seven existing wells) could significantly affect their water quality and quantity. The Board agrees with the Hearings Officer and finds that this goal does not directly address the availability (or quantity) of domestic water supplies. Rather, it is intended to assure that quality of air, water and land resources is maintained and improved. Here, the evidence (including evidence from testing of nearby community water wells) shows that existing water quality in the area is adequate, and that past activities on the site have not affected nearby well water quality. With respect to water quality at the site, the Board finds that the question can be better addressed at the time a development proposal is submitted for the site. At this point, the evidence shows that the proposed plan amendment/zone change will not have any effect on water quality. Erosion/Fill. One of the neighbors expressed concerns regarding slope stability at the site, asserting that new grading may undermine the slope along the edges of the river bank. Other neighbors expressed concerns that the fill used for residential foundations be adequate for the purpose, noting that a school in Deschutes County is sinking, in part because the fill used by the contractor was not stable enough to accommodate the building. The evidence shows that diatomite mining occurred closer to the center of the site, and that the aggregate mining has ceased. There is no evidence that past mining has undermined slope stability along the river edge. The applicant has proposed to grade some of the taller diatomite mounds to reduce the 5 The opponents argue that the diatomite has been converted to crystalline silica during through an on - site manufacturing process. They cited evidence showing that crystalline silica is hazardous to worker health, and argued that until the diatomite at the site has been removed or covered with top soil, there is no guarantee that existing or future residents' health will not be affected. They further argue that diatomite doesn't grow much, and unless the applicant plans to import a significant amount of topsoil, it is unlikely that the reseeding efforts will be successful. While the former evidence tends to support a finding that processing of diatomite at the site needs to be regulated, the evidence of the health effects of freshwater diatomite on neighboring property owners is not sufficient to undermine the applicant's evidence that such effects are limited, and consistent with the effects of blowing dust in general. ZC-08-1/PA-08-1 — BOCC Decision Page 17 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G areas susceptible to blowing dust. As for future development, land division and development standards impose setbacks from the edge of the bank. Deschutes County does not require grading permits and does not presently regulate fill to determine if it is suitable for residential use. As a condition of approval, if fill is brought onto the site, the applicant will be required identify the general location of the fill, and if the site is used for development, the applicant shall either certify that the fill is suitable for development, or specifically declaim any knowledge of its suitability. The Board concludes that these measures are adequate to assure that development on the site will not adversely affect air, water or land quality. Dumping/Environmental Issues. A portion of the site west of Lower Bridge Way was an approved waste facility in the mid-1970s, and consequently, sludge, radioactive materials as well as standard solid waste was brought to the site during that time. According to the applicant, the dumping grounds were limited to the central portion of the site, near the former lagoons, and included 55-gallon drums filled primarily with caustic sand. The site was subject to a DEQ- mandated clean up, which was completed by January 1985. The evidence shows that all of the materials located at the site prior to 1985 were removed to approved hazardous waste disposal sites, including Arlington and the Hanford Reservation. According to Maul Foster and Alongi, Inc., the applicant's environmental consultant, the standards used to evaluate the clean-up was based on one of two standards "clean up to the maximum extent practical" or "clean up to background conditions." Maul Foster and Alongi, Inc. representatives testified that these standards are higher than the current risk -based standards, which permit less comprehensive clean up where the site will be used for industrial purposes than is required for sites that will be redeveloped for residential uses.s With respect to spills or activities that have occurred since that time, including disposal of mining solvents and industrial burning, the evidence shows that the violations have been addressed by meeting industrial use standards. The Board has included conditions, as discussed more fully herein, to ensure the property is clean enough to meet residential use standards. Based on these findings, the Board finds that residential development of the property will not significantly impair air, water or land quality in the area. a, Section 23.96.030, Policies 10. As part of subdivision or other development review, the County shall consider the impact of the proposal on the air, water, scenic and natural resources of the County. Specific criteria for such review should be developed. Compatibility of the development with those resources shall be required as deemed appropriate at the time given the importance of those 6 The Hearings Officer found that a question remains as to whether the 1985 standards (based on 1985 technology) are equivalent to the clean-up standards that would be imposed if the site were subject to current standards for residential re -development. Evidence placed in the record since that time establishes that different regulatory standards exist for residential use. The Hearings Officer found that this goal requires a demonstration that the site meets applicable DEQ clean-up standards, which in this case, are the 1985 standards. The Hearings Officer then concluded that the applicant had met its burden of demonstrating that those standards have been satisfied, therefore, the proposed plan amendment and zone change are consistent with these standards. The Board agrees with and adopts these findings. The Board further imposes conditions to require the applicant to submit a DEQ release for residential use. ZC-08-1/PA-08-1 — BOCC Decision Page 18 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G resources to the County while considering the public need for the proposed development. FINDINGS: This plan policy is not applicable to the proposed plan amendment because the applicant is not seeking subdivision approval or development review. If the plan amendment and zone change are approved, then future development will need to satisfy this standard. 6. Chapter 23.108. Historic And Cultural a. 23.108.020, Goals. 1. To preserve and protect historic and cultural resources of Deschutes County. a. 23.108.040, Goal 5 Inventory - Historic Resources. 21. Lynch and Roberts Store Advertisement: Ad advertising sign painted on a soft volcanic ash surface. Only area example of early advertising on natural material. Lynch and Roberts established mercantile in Redmond in 1913. Roberts Field near Redmond was named for J. R. Roberts. Site includes the bluff. 14-12-00 TL 1501. FINDINGS: The Lynch and Roberts Store Advertisement sign is painted on a large boulder located on the subject property. As this zone change, in itself, does not authorize any development of the property, no adverse impacts to historical resources on the subject property are anticipated. The applicant has proposed several measures to protect this historic resource. The applicant has proposed to not develop any area within a 100 yard radius of the historic sign and has proposed to post markers to denote the historic significance of the sign and to prevent trespass, prior to development of the site. The applicant has also proposed that any Covenants, Conditions and Restrictions (CC&Rs) created as a part of a residential development of the subject property will contain obligations to protect the area within a 100 yard radius of the historic sign from development and trespass and to maintain the historic markers. The Board finds that the proposed measures will be sufficient to meet the goal of protecting this historic resource. These measures to protect the Lynch and Roberts Store Advertisement sign have been included as conditions of approval. B. Oregon Administrative Rules 1. OAR 660, Division 12, Transportation Planning Rule (1) Where an amendment to a functional plan, an acknowledged comprehensive plan, or a land use regulation would significantly affect an existing or planned transportation facility, the local government shall put in place measures as provided in section (2) of this rule to assure that allowed land uses are consistent with the identified function, capacity, and performance standards (e.g. level of service, volume to capacity ratio, etc.) of the facility. A plan or land use regulation amendment significantly affects a transportation facility if it would: ZC-08-1/PA-08-1 — BOCC Decision Page 19 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G (a) Change the functional classification of an existing or planned transportation facility (exclusive of correction of map errors in an adopted plan); (b) Change standards implementing a functional classification system; or (c) As measured at the end of the planning period identified in the adopted transportation system plan: (A) Allow land uses or levels of development that would result in types or levels of travel or access that are inconsistent with the functional classification of an existing or planned transportation facility; (B) Reduce the performance of an existing or planned transportation facility below the minimum acceptable performance standard identified in the TSP or comprehensive plan; or (C) Worsen the performance of an existing or planned transportation facility that is otherwise projected to perform below the minimum acceptable performance standard identified in the TSP or comprehensive plan. (2) Where a local government determines that there would be a significant effect, compliance with section (1) shall be accomplished through one or a combination of the following: (a) Adopting measures that demonstrate allowed land uses are consistent with the planned function, capacity, and performance standards of the transportation facility. (b) Amending the TSP or comprehensive plan to provide transportation facilities, improvements or services adequate to support the proposed land uses consistent with the requirements of this division; such amendments shall include a funding plan or mechanism consistent with section (4) or include an amendment to the transportation finance plan so that the facility, improvement, or service will be provided by the end of the planning period. (c) Altering land use designations, densities, or design requirements to reduce demand for automobile travel and meet travel needs through other modes. (d) Amending the TSP to modify the planned function, capacity or performance standards of the transportation facility. (e) Providing other measures as a condition of development or through a development agreement or similar funding method, including transportation system management measures, demand management or minor transportation improvements. Local governments shall as part of the amendment specify when ZC-08-1/PA-08-1 — BOCC Decision Page 20 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G measures or improvements provided pursuant to this subsection will be provided. (3) Notwithstanding sections (1) and (2) of this rule, a local government may approve an amendment that would significantly affect an existing transportation facility without assuring that the allowed land uses are consistent with the function, capacity and performance standards of the facility where: (a) The facility is already performing below the minimum acceptable performance standard identified in the TSP or comprehensive plan on the date the amendment application is submitted; b) In the absence of the amendment, planned transportation facilities, improvements and services as set forth in section (4) of this rule would not be adequate to achieve consistency with the identified function, capacity or performance standard for that facility by the end of the planning period identified in the adopted TSP; (c) Development resulting from the amendment will, at a minimum, mitigate the impacts of the amendment in a manner that avoids further degradation to the performance of the facility by the time of the development through one or a combination of transportation improvements or measures; (d) The amendment does not involve property located in an interchange area as defined in paragraph (4)(d)(C); and (e) For affected state highways, ODOT provides a written statement that the proposed funding and timing for the identified mitigation improvements or measures are, at a minimum, sufficient to avoid further degradation to the performance of the affected state highway. However, if a local government provides the appropriate ODOT regional office with written notice of a proposed amendment in a manner that provides ODOT reasonable opportunity to submit a written statement into the record of the local government proceeding, and ODOT does not provide a written statement, then the local government may proceed with applying subsections (a) through (d) of this section. FINDINGS: The Transportation Planning Rule ("TPR") applies to these applications because they involve an amendment to an acknowledged plan. The proposed plan amendment would change the designation of the subject property from SM and EFU-LB to RREA, and the applicant has requested approval of a zone change from SM and EFU to RR-10 for the subject property. The TPR, OAR 660-012-0060, is triggered when uses allowed under a plan amendment/zone change would "significantly affect" a transportation facility by generating more traffic than what would be generated by those uses allowed under the current zoning. To properly compare the trips, the trips generated by the most traffic intensive uses in the existing zone must be compared to the trips generated by the most traffic intensive uses under the proposed zoning. Mason v. City of Corvallis, 49 Or LUBA 199 (2005); Griffiths v. City of Corvallis, 50 Or LUBA 588 ZC-08-11PA-08-1 — BOCC Decision Page 21 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G (2005). Where the most traffic intensive uses allowed under the proposed zoning would generate an equal or lesser amount of trips than those allowed under the existing zoning, the proposed amendment would not significantly affect a transportation facility. Mason, 49 Or LUBA at 222; Griffiths, 50 Or LUBA at 593. In other words, the initial question under the TPR is whether the amendment causes a net increase in trips by comparing uses allowed under the existing zoning to those allowed under the proposed zoning. If the answer to that questions is no, as here, the amendment does not "significantly affect" a transportation facility. Griffiths, at 593. The applicant's December 2007 traffic study finds the intersection of Lower Bridge Way/U.S. 97 will not meet either the performance standards of Deschutes County or ODOT with or without this development. The County sets a standard of Level of Service (LOS) D for existing roads while the applicable ODOT volume/capacity (V/C) ratio is 0.70 for the highway and 0.80 for the side street based on functional classification and posted speed. An ODOT project planned for Spring 2009 will reconfigure the Lower Bridge Way/97 and 11th Street/97 intersections. This project will improve the operations and safety at these intersections, but it will not address the capacity issue, as the project focuses more on storage issues on the side streets. Staff, ODOT, and the applicant worked together to identify rural surface mining sites that are comparable to the applicant's 550-acre roughly six miles west of Terrebonne. The resulting comparable surface mines included one west of Sisters and two on the O'Neil Highway near the Deschutes/Crook County line. In particular, the O'Neil Highway sites (Hooker Creek and Lone Pine) were the closest equivalent sites to the applicant's in terms of both geography and relative proximity to nearby urban markets. A review of the Dec. 19, 2007, April 22, 2008, and May 20, 2008, traffic analyses indicated these comparable sites were analyzed in one or more of the applicant's traffic studies. The traffic analysis of the three sample sites demonstrated surface mines generate p.m. peak hour trips at a range of 0.041 to 0.16 trips per acre. Applying those trip generation values to the land presently zoned SM could generate 23 to 88 trips in the p.m. peak. Applying the trip generation rates for the O'Neil Highway surface mines, which again are the best comparable sites, to the Terrebonne site results in 72 to 88 p.m. peak hour trips. Under the proposed zoned change to RR-10, the applicant could construct 55 single-family homes on the 550 acres. This would result in 55 p.m. peak trips on the system, according their Dec. 19, 2007, traffic impact analysis. Therefore, as the existing SM zone can generate 72 to 88 p.m. peak hour trips whereas the RRA0 zone could generate 55 p.m. peak hour trips, the proposed zone would generate fewer trips than the existing zoning. To further substantiate the finding of equivalent or greater trips under the SM zoning, the applicant submitted testimony and evidence documenting the historic levels of activity at the site. Historically, it was used for a wide variety of uses allowed under the SM zone including aggregate and diatomite mining and processing, an asphalt plant, a rock crushing operation, a staging area for road construction, and a hazardous waste materials facility. See, Exhibits PH-1 and PH-2. In fact, previous operators at the site estimated there were as many as 22 trucks per hour hauling sand and gravel during the period from 2004 to 2007 and as many as 150 trucks per day during the period of 1978 through 1988 when the site was used as a batch plant and crushing operation. Records also show the site employed over 100 workers in shifts of 35 employees each during the diatomite mining. See Exhibit PH-2. ZC-08-1/PA-08-1 — BOCC Decision Page 22 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G Furthermore, the current owners of the site hold the mineral rights to mine the adjacent surface mining (SM site no. 322) property to the east (Exhibit PH-3). Thus, the evidence in the record shows that the subject property could be used as staging and processing area for material mined from the adjacent property and other sites in the area. The applicant also submitted the deed records showing the owners of the subject property hold mineral rights to adjacent properties. Given the historic level of use at the site, the remaining diatomite resource, the proximity of the site to a state highway with upcoming construction projects and its central location between two rapidly growing communities, the Board finds that the site would generate at least the same or more trips under the surface mining zoning as it would under the proposed residential zoning. This is especially true if the present owners are left with environmental clean up costs/ responsibilities and mining or mining related uses as the only economically viable uses of the property. Therefore, the Board finds the proposal will not significantly affect a transportation facility, and is, therefore, consistent with the TPR as defined by OAR 660-012-0060. 2. OAR 660, Division 15, Statewide Planning Goals and Guidelines FINDINGS: Goal 1, Citizen Involvement. The proposed plan amendment satisfies this goal because the Planning Division provided public notice of the applicant's proposal through individual mailed notice to affected property owners, posting of the subject property with a notice of proposed land use action sign, and published notice of the public hearing in the "Bend Bulletin" newspaper. In addition, four public hearings were held, one before the Hearings Officer and three before the Board. There was extensive public participation in this process, including oral and written testimony and evidence. Goal 2, Land Use Planning. The proposal has been reviewed in accordance with the county's acknowledged planning review processes, and was the subject of four public hearings. Further, no Goal 2 exceptions are required. The proposal is consistent with this goal. Goal 3, Agricultural Lands. The property contains few agricultural soils and has not been cultivated for crops or livestock. The site is not "agricultural" within the meaning of Goal 3. Goal 4, Forest Lands. This goal is not applicable because the subject property is not zoned or designated for forest use. Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. According to the applicant, the site no longer contains aggregate in sufficient quantities to qualify as a "significant site" under Goal 5 and OAR Chapter 660, division 23. The evidence shows that the majority of the aggregate resource is located on the southeastern portion of the site, south of Lower Bridge Way. The site has been closed in accordance with DOGAMI regulations, and the evidence shows that little of the resource remains. While the parties apparently agree that vast quantities of diatomite remain, they dispute whether the materials will be needed for industrial or construction uses in the near future, and whether other locations are available to supply long term future needs. The Board agrees with the Hearings Officer and finds that because the market for diatomite is a global market and the supply of the mineral is available on a global scale, there is no evidence that there is a local market for diatomite that could be accommodated by retaining this site in Surface Mining zoning. The Board further finds that removal of this site from the County's Goal 5 inventory is justified because the unrefuted ZC-08-1/PA-08-1 — BOCC Decision Page 23 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G evidence in the record shows that there is not a significant quantity of aggregate resource, which is the resource for which the site was listed on the Goal 5 inventory. In response to comments that the proposal will only be consistent with Goal 5 if the ESEE analysis for Site 461 is amended to address the relative merits of allowing or not allowing mining on the site based on current conditions, the Board finds that such a revised analysis is not necessary if the purpose of the amendment is to remove a resource from the protection afforded by the inventory designation. The applicant has requested that the site be removed from the inventory, and there is little or no benefit to retain it. Therefore, further analysis is unnecessary. Goal 6, Air, Water and Land Resources Quality. While a number of environmental quality concerns have been identified, the Board finds that those concerns are addressed through environmental quality and health administrative rules. The conditions imposed herein will require the environmental agencies to ensure the property is clean enough to meet applicable regulations for residential use standards prior to development. Likewise, residential development on the site will not be permitted unless the applicant demonstrates that adequate area is available for on -site sewage disposal. Opponents argue Goal 6 requires the site to be cleaned up before a residential zoning or use can be approved. The Board disagrees. Goal 6 requires findings that waste and process discharges from a proposed use will be able to comply with applicable state and federal environmental quality standards. It is limited by its terms to wastes and discharges from future development. The evidence in the record establishes the proposed use as a maximum of 74 single family residences served by individual wells and on -site septic systems. The applicant submitted evidence showing there is a sufficient quantity and quality of water available to serve the development without measurable impact to adjacent properties, the groundwater aquifer or the Deschutes River. Any future residential development will have to receive approval from Deschutes County Environmental Health for the establishment of septic systems to serve the proposed residences. Any subdivision or land division would have to show the lot lines are configured in a way to support an area for an on -site septic system. There is no evidence to suggest that waste or other discharges from the proposed residential use would not meet any applicable state or federal environmental quality standards. Goal 7, Areas Subject to Natural Disasters and Hazards. The subject property contains areas subject to flooding along the Deschutes River, as shown on FIRM panel 41017C0300E. This proposal does not include any development in floodplain areas. Any future development in these areas would be required to comply with the provisions of DCC 18.96, which has been reviewed and approved by FEMA. Goal 8, Recreational Needs. The proposed plan amendment and zone change do not reduce or eliminate any opportunities for recreational facilities either on the subject property or in the impact area, and to the extent the development of residential uses on the property will generate a need for recreational opportunities, the Board finds that those needs can be served on -site or by existing recreational areas/services. Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the state for a variety of economic activities. This goal is met because the subject property no longer constitutes a significant mineral and aggregate resource, and therefore allowing it to be re -designated and rezoned for rural residential development will not have adverse economic impacts. ZC-08-1/PA-08-1 — BOCC Decision Page 24 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G Goal 10, Housing. Goal 10 defines needed housing as being housing within urban growth boundaries. This property is outside the urban growth boundary, and therefore Goal 10 is not applicable. Goal 11, Public Facilities and Services. This Goal requires planning for public services, including public services in rural areas. Goal 11 has generally been held to prohibit the extension of urban services (namely sewer and water) to rural lands outside urban growth boundaries. The present application will not result in the extension of urban services because the low -density development allowed in the RR-10 zone does not require urban services. Any residential development will be of a density that can be served by on -site septic and individual wells. Goal 12, Transportation. This goal is to "provide and encourage a safe, convenient and economic transportation system." It is implemented through OAR 660-012, commonly known as the TPR. Based on the findings in response to the TPR, the Board finds the proposal is consistent with Goal 12. Goal 13, Energy Conservation. Goal 13 is to conserve energy. Planning Guideline 3 notes that "[I]and use planning should, to the maximum extent possible, seek to recycle and re -use vacant land..." Surface mining activities have ceased on the site and it has been vacant for some years. The applicant proposes re -use of the land consistent with this guideline, and thus this proposal is consistent with Goal 13. Goal 14, Urbanization. The applicant's proposal does not affect property within an urban growth boundary and the proposed RR-10 zoning designation does not permit urban density levels. Goal 14 therefore does not apply. Goals 15 through 19. These goals, which address river, ocean, and estuarine resources, are not applicable because the subject property is not located in or adjacent to any such areas or resources. ZONE CHANGE FINDINGS: The applicant has requested approval of a zone change from EFU-LB and SM to RR-10 for the subject property, and to remove the associated Surface Mining Impact Area (SMIA) overlay from property located within a one-half mile radius of the site. However, because the site is within a one-half mile radius of Site 322, the applicant requests that the SMIA be applied to this property, to protect mining uses at that site. C. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.52, Surface Mining Zone (SM) a. Section 18.52.130, Site Reclamation Plan. Prior to the start of mining activity, a site reclamation plan shall be submitted and approved which demonstrates that the mineral and aggregate extraction site can be reclaimed for a subsequent beneficial land use consistent with the designation of such subsequent use in the surface mining element of the Comprehensive Plan. ZC-08-1/PA-08-1 -- BOCC Decision Page 25 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G A. When a site reclamation plan is required by DOGAMI, the site reclamation plan shall be approved by DOGAMI. To the extent practicable, review of the site reclamation plan shall be conducted jointly between DOGAMI and the County. B. When a site reclamation plan is not required by DOGAMI, the site reclamation plan shall be approved by the County in conjunction with the site plan review described in DCC 18.52.070. The County shall review such site reclamation plans for consistency with the site -specific ESEE analysis in the surface mining element of the Comprehensive Plan and the standards and conditions set forth in DCC 18.52.110 and 18.52.140. The County also shall follow the applicable DOGAMI standards and criteria for a site reclamation plan. FINDINGS: As previously discussed, much of the mining activity on the site took place prior to any County or State regulation and is therefore exempt from reclamation requirements. The evidence in the record shows that all reclamation required by DOGAMI was completed to DOGAMI's satisfaction and DOGAMI has closed its file on the site. Specifically, the evidence shows that the areas southeast of Lower Bridge Way were subject to a DOGAMI reclamation plan and have been reclaimed in accordance with that plan. The mine site northwest of Lower Bridge Way did not have a DOGAMI required reclamation plan. However, a County reclamation plan for the removal of the aggregate resource was required under SP-85-23, and was attached to that decision as Exhibit C. The evidence shows this area encompasses an 18-acre area on the 410-acre site that is north of Lower Bridge Way and west of the site access road. The applicant proposes to reclaim this area of the site to allow for residential development and to submit a modified reclamation plan as described in the applicant's December 3, 2008 plan. The Board finds that this criterion can be met through the imposition of a condition of approval requiring the applicant to complete County approved reclamation of the 18-acre area covered by SP-85-23 through a modified reclamation plan substantially consistent with the plan submitted by the applicant dated December 3, 2008. The modification will be processed as a land use application with notice and an opportunity for full public participation. b. Section 18.52.200, Termination of the Surface Mining Zoning and Surrounding Surface Mining Impact Area Combining Zone A. When a surface mining site has been fully or partially mined, and the operator demonstrates that a significant resource no longer exists on the site, and that the site has been reclaimed in accordance with the reclamation plan approved by DOGAMI or the reclamation provisions of DCC 18, the property shall be rezoned to the subsequent use zone identified in the surface mining element of the Comprehensive Plan. FINDINGS: The County's inventory of significant mineral and aggregate sites describes SM Site 461 as follows: Site No. ( Legal Description Quantity I Quality ZC-08-1/PA-08-1 — BOCC Decision Document No. 2009-168 Page 26 of 38 Ord. 2020-013 Exhibit G 461 141300-00-01500, 1501, Aggregate 1350,000 y3 Good 1502, 1503, 1505, 1600 [Diatomite] 2,000,000 y3 Subsection (A) requires the operator to demonstrate that: 1) the site has been fully or partially mined; 2) a significant resource no longer exists on site; and 3) the site has been reclaimed in accordance with DOGAMI, or DCC Section 18.52.130 standards. The applicant asserts that all three conditions are satisfied here. The Board agrees. As discussed in detail below Site 461 has been mined. The section below discusses significant resource status. In the County's previous decision in Stott (PA-98-12/ZC-98-6), the Hearings Officer held that the provisions of OAR 660 Division 23 regarding compliance with Goal 5 are relevant to this question. OAR 660-023-0250 provides in pertinent part: (1) [OAR 660, division 23] replaces OAR 660, division 16 * * *. Local governments shall follow the procedures and requirements of this division * * * in the adoption or amendment of all plan or land use regulations pertaining to Goal 5 resources. The requirements of Goal 5 do not apply to land use decisions made pursuant to acknowledged comprehensive plans and land use regulations. (2) The requirements of this division are applicable to [post -acknowledgment plan amendments (PAPAs)] initiated on or after September 1, 1996. * * * (3) Local governments are not required to apply Goal 5 in consideration of a PAPA unless the PAPA affects a Goal 5 resource. For purposes of this section, a PAPA would affect a Goal 5 resource only if: (a) The PAPA creates or amends a resource list or a portion of an acknowledged plan or land use regulation adopted in order to protect a significant Goal 5 resource or to address specific requirements of Goal 5[.] * * *" In Stott, the Hearings Officer concluded that a plan amendment and zone change to "de -list" and rezone a surface mining site constitutes a "PAPA," and therefore the provisions of OAR 660-023-0180 concerning mineral and aggregate resources apply to such an application to the extent they reasonably can be applied to a decision to remove a site from the county's adopted inventory. The Board agrees with this conclusion. The Hearings Officer further found OAR 660- 023-180(3) identifies the pertinent standards for determining "significance." This paragraph provides: (3) An aggregate resource site shall be considered significant if adequate information regarding the quantity, quality, and location of the resource demonstrates that the site meets any one of the criteria in subsections (a) through (c) of this section, except as provided in subsection (d) of this section: (a) A representative set of samples of aggregate material in the deposit on the site meets applicable Oregon Department of Transportation (ODOT) specifications for base rock for air degradation, abrasion, and soundness, and the estimated amount of material is more than ZC-08-1/PA-08-1 — BOCC Decision Page 27 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G 2,000,000 tons in the Willamette Valley, or more than 500,000 tons outside the Willamette Valley; (b) The material meets local government standards establishing a lower threshold for significance than subsection (a) of this section; or (c) The aggregate site was on an inventory of significant aggregate sites in an acknowledged plan on September 1, 1996. FINDING: Significant Resources: Mineral and aggregate are not the same resources. Mineral resources refer generally to all inorganic materials that are extracted from the earth and put to beneficial use. It includes precious metals, valuable minerals, diatomite, as well as rock and sand. "Aggregate," on the other hand, refers to those inorganic substances that are used in road or other construction activities. OAR 660-023-0180 only addresses "aggregate" resources. The county's Goal 5 program primarily addresses aggregate resources, although the definition of "mineral" is broader than the definition of "aggregate" set out in OAR 660, division 23. Aggregate resource is significant if it meets one of the three criteria set out in OAR 660-023- 0180(3). Here, the only potentially applicable standard is OAR 660-023-0180(3)(a).7 OAR 660-023-0180(3)(a) requires a demonstration that the aggregate at the site: 1) meets ODOT specs for air degradation; 2) abrasion; 3) sodium sulfate soundness; and 4) include more than 500,000 tons. The Aggregate Resource Assessment Report prepared by GeoDesign, Inc. and submitted as Exhibit 7 ("Aggregate Report") concludes that subject site does not satisfy the criteria because it fails sodium sulfate soundness requirements and contains less than 500,000 tons of aggregate. Based on a site -specific analysis, the Aggregate Report estimates the quantity of the aggregate at 211,000 cubic yards. Assuming a tons -per -cubic yard ratio of 2.1, the Report finds 443,100 tons of aggregate on site, less than the "significant" threshold above. The Board agrees with the Hearings Officer that the unrefuted evidence demonstrates that the site no longer contains a significant aggregate supply. With respect to diatomite, the aggregate significance standards do not apply because diatomite is a mineral, not aggregate, resource. Neither local law nor administrative rule define what a significant "mineral" resource is. Furthermore, the ESEE analysis for the site makes it clear that the site was listed on the County's Goal 5 Mineral and Aggregate inventory based solely on the quantity of aggregate on the site, not diatomite. While the value of diatomite in the global market justified the rezoning of the property to SM, and the approval of mining in 1985, the applicant has provided information in the submitted burden of proof that there is no economic incentive to mine diatomite on the subject property due to ample global supply, low profitability, less expensive substitute materials, and undesirable environmental impacts. Due to its limited usefulness in the local market, and the evidence that other materials provide a more suitable replacement, the Board agrees with the Hearings Officer that the diatomite on the site is not a "significant" mineral warranting protection. OAR 660-023-0180(3)(b) does not apply because the local government has not established lower standards. OAR 660-023-0180(3)(c) does not apply to requests to remove a site from the acknowledged inventory. See Hearings officer decisions PA-98-12 and ZC-98-6, PA-04-4 at page 30 (Exhibit 15) and PA-06-2 at page 14 (Exhibit 19). ZC-08-1IPA-08-1 — BOCC Decision Page 28 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G Reclamation: The Deschutes County Code requires that the site be reclaimed in accordance with a reclamation plan approved by DOGAMI or the reclamation provisions of DCC 18.52, DOGAMI has found the site to be reclaimed according to its standards. As the DOGAMI memo explains, 61 acres on tax lots 1503 and 1505 were covered by an operating permit for gravel extraction, and reclamation has been completed there. The overburden stockpiles on that area have been revegetated, are stable, and may remain until used for on -site development. The former DIATOMITE mining site (west of Lower Bridge Way) is exempt from reclamation requirements under ORS 517.770 because it was part of a mine that existed before 1972. Site Plan approval SP-85-23 included reclamation specifications. Below is a summary of the applicant submitted reclamation plan, attached as Exhibit C to the Hearings Officer Decision in SP-85-23. The applicant has stated that the topsoil is stockpiled and will be replaced on the area mined approximately 12 inches deep. The applicant proposed to motorgrade the site and seed it with fortress red fescue, Idaho fescue, and mixed bunchgrass at a rate of 40 pounds per acre planted in the fall with fertilizer and mulch. The applicant also proposes to plants evergreens for shade and windbreaks on the site. Condition 1 of SP-85-23 also required an updated reclamation plan to include measures to prevent materials from eroding into the Deschutes River. Staff has been unable to locate this updated reclamation plan or a map showing the area covered by SP-85-23. The applicant submitted testimony and evidence establishing an 18-acre area north of Lower Bridge Way and west of the site access road on the area mined for aggregate under the permit issued in SP-85- 23. The evidence establishes that some but not all of the components of the reclamation plan summarized above were completed. There is significant confusion as to the relationship between the DOGAMI reclamation standards and DCC 18.52.200(A). DOGAMI has the statutory authority to regulate reclamation over sites located in Deschutes County, and its reclamation standards supersede local standards. Therefore, unless the applicant agrees otherwise, sites that are exempt from reclamation under DOGAMI regulations are similarly exempt from other, more restrictive local standards that could be imposed as a condition of land use approval. Thus, as a practical matter, the only role the county has in the reclamation process is to identify a post -mining use. If the post -mining use is established prior to the adoption of a reclamation plan, the plan must be consistent with that post -mining use. Here, the evidence shows that the applicant proposed a reclamation plan for the area mined for aggregate in SP-85-23. Those reclamation activities were not required in the DOGAMI reclamation plan, but rather were solely imposed as conditions in SP-85-23, enforceable by the County. The Board finds that the condition discussed previously requiring the applicant to complete a County approved reclamation plan is sufficient to show compliance with the earlier condition, since it actually increases the ultimate likelihood of compliance. Based on the above, the Board finds the site has been partially mined, a significant resource no longer exists and the site has been or will be, through the fulfillment of conditions of approval, fully reclaimed in accordance with DOGAMI and DCC requirements. B. Concurrent with such rezoning, any surface mining impact area combining zone which surrounds the rezoned surface ZC-08-1/PA-08-1 — BOCC Decision Page 29 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G mining site shall be removed. Rezoning shall be subject to chapter 18.136 and all other applicable sections of this title, the Comprehensive Plan and Deschutes County Code Title 22, the Uniform Development Procedures Ordinance. FINDINGS: The present zone change will also remove the surface mining impact area combining zone which surrounds the rezoned surface mining site. However, as noted above, Site 322 is located within one-half mile of the site. Therefore, a SMIA that covers a one-half mile radius of that site must remain on nearby property and must be applied to this site. 2. Chapter 18.136, Amendments a. Section 18.136.020, Rezoning Standards The applicant for a quasi-judicial rezoning must establish that the public interest is best served by rezoning the property. Factors to be demonstrated by the applicant are: FINDINGS: The Board finds that this section requires that a quasi-judicial rezoning must establish that the public interest is best served by rezoning the property. The Board finds this analysis must include, but is not limited to, to factors described in this section. The record indicates that the subject property was historically used to mine and process diatomaceous earth. The record also indicates that the processing of diatomaceous earth can create cristobalite, classified by the International Agency for Research on Cancer as carcinogenic to humans. There is no evidence in the record that the property has been tested or evaluated for potential hazard form this carcinogen. The site has also been used for hazardous and radioactive waste disposal and has been subject to numerous violations of environmental quality regulations. The Oregon Department of Human Services, Environmental Health Assessment Program (EHAP) stated that the existing EHAP evaluation of environmental conditions at the site only dealt with the present use of the property. EHAP recommended that the landowner obtain a letter of "No Apparent Public Health Hazard" from EHAP for the site prior to residential use. This would require additional environmental sampling and cleanup of any identified environmental concerns. EHAP has also found that airborne dust from any source can cause short-term respiratory irritation, but more information is needed to evaluate possible long-term effects at this site. EHAP considers inhalation of airborne dust emanating from this site to be an indeterminate health hazard. The Oregon Department of Environmental Quality (DEQ) stated that the site has currently only been evaluated with respect to environmental safety for its current use as a mine and an industrial property. A rezone of the site from industrial to residential use would require a re- evaluation of the site for residential use. The re-evaluation of the site, applicable exposure routes, and pathways may result in some scenarios requiring deed restrictions, active cleanup and/or monitoring. Following a cleanup of any identified environmental concerns, DEQ could issue a "No Further Action Letter" (NFA) for residential use. Given the environmental history of the site, the Board finds that the public interest will not be served by rezoning the property for residential use, prior to establishing that the site is safe for ZC-08-1/PA-08-1 — BOCC Decision Page 30 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G residential use8. The Board finds, however, that the applicant can meet this criterion through conditions of approval. In establishing these conditions of approval, the Board recognizes that the majority of the environmental concerns pertain to dust and hazardous waste storage that occurred on the a portion of property located West of Lower Bridge Way. Therefore, separate conditions of approval are imposed for 1) the area to the East of Lower Bridge Way (together with approximately 30 acres along the river west of Lower Bridge Way; and, 2) the area West of Lower Bridge Way, the latter requiring a Resolution of Intent to Rezone rather than a current rezoning of that section. East Area: 1. Prior to final plat approval for any residential subdivision, the applicant shall obtain from the Department of Environmental Quality (DEQ) a "No Further Action" (NFA) determination or the equivalent for a residential use designation for the 160 acres. 2. Prior to final plat approval for any residential subdivision, the applicant shall obtain from the Department of Human Services (DHS) a determination of "no apparent public health hazard" for a residential use designation for the 160 acres. West Area: 1. Within five (5) years or prior to final plat approval for any residential subdivision on the 410 acre area that is the subject of File No. ZC-08-1/PA-08-1, whichever is earlier, the applicant shall obtain from DEQ an NFA determination or the equivalent for a residential use designation for this 410 acre area. 2. Within (5) five years or prior to final plat approval for any residential subdivision on the 410 acre area that is the subject of File No. ZC-08-1/PA-08-1, whichever is earlier, the applicant shall obtain from DHS a determination of "no apparent public health hazard" for a residential use designation for this 410 acre area. 3. During the pendency of this Resolution and continuing in conjunction with the DEQ VCP program and site development, the owner shall implement the DEQ approved Planting Plan dated May 20, 2008 (Exhibit PH-6) and the DEQ approved Watering Monitoring Plan dated May 20, 2008 (Exhibit PH-7) as the Dust Abatement Plan for the site. A. That the change conforms with the Comprehensive Plan, and the change is consistent with the Plan's introductory statement and goals. FINDINGS: In previous County decisions, it has been held that comprehensive plan goals and policies do not constitute mandatory approval criteria for quasi-judicial zone changes, but rather are implemented through the zoning ordinance, and therefore if the proposed zone change is consistent with the applicable provisions of the zoning ordinance, it also will be consistent with the plan. The applicant has argued that the public interest is best served by taking the subject property out of mining use. Due to increased rural residential development in the area and decreased value and demand for diatomite, the applicant argues that diatomite mining is no longer 8 With regard to environmental issues, the Board lacks the expertise to determine if the subject property is safe for residential use and will look to DEQ and DHS to provide this determination. ZC-08-1/PA-08-1 — BOCC Decision Page 31 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G compatible with the area or desirable for the landowners. Rezoning for residential use will provide incentive and the economic resources to clean up the aesthetic and environmental impacts of decades of mining. As noted above, the proposed plan map amendment and removal of the site from the county's inventory of significant mineral and aggregate sites are consistent with applicable plan policies and the Statewide Land Use Planning Goals. The proposed RR-10 and SMIA zoning designations are consistent with the proposed plan designations. Therefore, the proposal, so long as it is also consistent with the zoning ordinance, is consistent with the plan. B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. FINDINGS: The applicant is proposing a zone change from Surface Mining to Rural Residential (RR). The purpose of the RR zone, set forth at DCC 18.60.10 is: The purposes of the Rural Residential Zone are to provide rural residential living environments; to provide standards for rural land use and development consistent with desired rural character and the capability of the land and natural resources; to manage the extension of public services; to provide for public review of nonresidential uses; and to balance the public's interest in the management of community growth with the protection of individual property rights through review procedures and standards. FINDINGS: The proposed zone change is consistent with this purpose statement because re- development of the site will create a rural residential living environment consistent with the rural character and capabilities of the land and resources. To the extent existing conditions affect the carrying capacity of the land, air and water, those issues can be addressed through compliance with applicable state health and environmental quality regulations, or through compliance with the county's development standards. C. That changing the zoning will presently serve the public health, safety and welfare considering the following factors: FINDINGS: The Board finds that this section requires that a quasi-judicial rezoning must establish that changing the zoning will presently serve the public health, safety and welfare. The Board finds this analysis must include, but is not limited to, to factors described in this section. The site is currently an unused diatomite and aggregate surface mine. Prior activities on the site have in some cases adversely affected public health, safety and welfare, although some of those impacts have been ameliorated. The concerns with public health, safety and welfare arose primarily from the previous use of the western portion of the site as a hazardous waste facility. Additionally, the presence of loose diatomite on the western portion of the property raises concerns with blowing dust, as described above. The Board has conditioned this decision to address these concerns. Opponents have raised limited issues with concerns about the portion of the property East of Lower Bridge Way. While the Board finds no evidence of any continued public health, safety ZC-08-1/PA-08-1 — BOCC Decision Page 32 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G and welfare concerns with the eastern portion of the property, this area has not been evaluated with respect to environmental concerns for residential use. The Board has conditioned this decision to address this concern, as described above. The Board agrees with the Hearings Officer and concludes that overall, redevelopment of the site for rural residential uses, as conditioned, will presently serve the public health safety and welfare by providing the developer with an incentive to reclaim the site. 1. The availability and efficiency of providing necessary public services and facilities. FINDINGS: All utilities are available and currently serving other nearby properties, including the RR-10 zoned subdivision to the southeast, and adequate County road frontage is available. The Board also concludes that the applicant has demonstrated that the proposed rural residential zoning will not significantly affect local transportation facilities. The Board agrees with the Hearings Officer that "public services and facilities" within the meaning of this standard does not include private domestic wells, individual subsurface sewage facilities or private roads. To the extent water availability and water quality fall within the category of "public services and facilities," the applicant provided evidence that it has a limited use water permit to allow for dust suppression and irrigation of re -vegetated areas. The applicant also testified and submitted evidence that its preliminary testing shows that adequate water is available to develop individual or group wells for domestic water supplies. Domestic wells must be drilled in accordance with Oregon Water Resources Department well drilling standards, which includes a requirement that the well not inject contaminated water into an aquifer, or cause perched water to move to another aquifer. There is substantial evidence in the record to show that these standards are met or can be met through conditions of development approval. 2. The impacts on surrounding land use will be consistent with the specific goals and policies contained within the Comprehensive Plan. FINDINGS: The evidence shows that rezoning the property will not adversely impact surrounding property because residential use is consistent with the existing residential uses adjacent to the subject property, and will not increase adverse impacts on agricultural uses on other nearby properties. Several neighboring land owners testified that they supported the proposal as a means of revegetating the site and controlling dust. D. That there has been a change in circumstances since the property was last zoned, or a mistake was made in the zoning of the property in question. FINDINGS: There have been several changes in circumstances, and new information that shows that mistaken assumptions were the premise of the current zoning. Part of the subject property was zoned Surface Mining in 1985 and the remainder in 1989. The 1985 zoning focused on only the diatomite resource, and was premised on the assumption that diatomite would be economically productive for export. At that time the property was zoned Surface Mine Reserve, and the applicable Comprehensive Plan assumed that land so designated "will ultimately be mined." The applicable Plan also lowered the burden of proof for changing the zoning to Surface Mining because "the material here sought to be mined consists of non -aggregate materials which are most probably to be used for export as there is currently ZC-08-1 /PA-08-1 — BOCC Decision Page 33 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G little local demand." In spite of low local demand, the Hearings Officer found that the potential to export diatomite satisfied "the need question." Applicants were "in the process of negotiating large scale contracts for the delivery of [diatomite]" and the county found that construction of a processing plant in Malheur County would "enable exportation by the applicants." Because the site had already been used for diatomite mining, the Hearings Officer found that rezoning would simply facilitate more use and exportation of the resource. However, circumstances have changed since 1985. Because the identified global supply of diatomite will satisfy global demand for a very long time, the Lower Bridge Way site is not needed. Environmental regulation and fuel costs have increased, while profits for diatomite have decreased. Therefore, according to the applicant, mining diatomite from the site is no longer economically viable or necessary. The second rezoning, as part of the ESEE analysis for site 461, in 1989-1990 focused on the site's aggregate (as opposed to a mineral) resource. It followed the 1988 Deschutes County Goal 5 Aggregate Inventory, which identified an aggregate resource of 350,000 cubic yards. It is unclear from the record how this amount was estimated. In the ESEE analysis for site 461, the Board identifies the key values that form the basis for the determination of SM zoning for the mine site. These include the importance of aggregate resources to development in Deschutes County, the value to the County economy in terms of materials and jobs, the presence of an estimated 350,000 cubic yards of aggregate on the site, and that the site is located near a major roadway for highway maintenance and construction jobs. Neither the mine location nor the importance of aggregate resources to Deschutes County have changed since the last zoning of the property. However, the current estimate of aggregate resources on the property has fallen to 211,000 cubic yards. Also, the current Aggregate Resource Assessment Report indicates that the aggregate on the site does not meet ODOT specifications. This report also indicated that the aggregate resource cannot be profitably mined. These issues constitute a change in circumstances within the meaning of this criterion. ZC-08-1/PA-08-1 — BOCC Decision Page 34 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G 4. Chapter 18.116, Supplementary Provisions a. Section 18.116.220. Conservation Easements on Property Adjacent to Rivers and Streams Prohibitions. A. As a condition of approval of all land use actions involving property adjacent to the Deschutes River, Crooked River, Fall River, Little Deschutes River, Spring River, Paulina Creek, Whychus Creek and Tumalo Creek, 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. B. The form of the conservation easement shall be as prescribed by the County and may contain such conditions as the County deems necessary to carry out the purposes described in DCC 18.04.030, "Conservation Easement." C. Any public access required as part of a conservation easement shall be subject to the following conditions: 1. Public access shall be limited to foot traffic for recreational purposes and the putting in or taking out of boats. 2. Unless otherwise permitted by the affected property owner, public access does not allow public passage through other private property to gain access to the property subject to the conservation easement. 3. Unless otherwise permitted by state law, County ordinance or the property owner, no person on the subject property as a result of a public access requirement of a conservation easement shall deposit solid waste, damage or remove any property, (including wildlife and vegetation) maintain or ignite fires or fireworks, discharge firearms or camp. FINDINGS: The subject property is adjacent to the Deschutes River. A conservation easement, as described in this criterion has been included as a condition of approval. IV. DECISION This Decision is separated into two parts representing two distinct areas of the subject property: 1) the area to the East of Lower Bridge Way (together with approximately 30 acres along the river west of Lower Bridge Way; and, 2) the area West of Lower Bridge Way East Area: The Board APPROVES the request for a comprehensive plan text and map amendment and zone change from Surface Mining to Rural Residential on the area East of Lower ZC-08-1/PA-08-1 — BOCC Decision Page 35 of 38 Document No. 2009-168 Exhibit G Ord. 2020-013 Bridge Way, together with approximately 30 acres along the river west of Lower Bridge Way (approximately 160 acres)9 subject to the following conditions of approval: 1. Prior to final plat approval for any residential subdivision, the applicant shall obtain from the Department of Environmental Quality (DEQ) a "No Further Action" (NFA) determination or the equivalent for a residential use designation for the 160 acres. 2. Prior to final plat approval for any residential subdivision, the applicant shall obtain from the Department of Human Services (DHS) a determination of "no apparent public health hazard" for a residential use designation for the 160 acres. 3. Prior to or contemporaneously with final plat approval for any residential subdivision, the applicant shall record a conservation easement in substantially the form attached hereto as Exhibit C and covenant (by deed or plat) to restrict in perpetuity the use of the approximately 30-acre area to open space uses and preventing the construction of any residential structure. 4. The applicant shall not develop any area within a 100-yard radius of the historic Lynch and Roberts Store Advertisement sign. The applicant shall post markers to prevent trespass, prior to development of the site. Any Covenants, Conditions and Restrictions (CC&Rs) created as a part of a residential development of the subject property will contain obligations to protect the area within a 100-yard radius of the historic sign from development and trespass and to maintain the posted markers. As part of any residential development approval for the site, the applicant shall include an informational section in its CC&Rs that detail the history of the site, including the remediation efforts taken by the applicant and its predecessors in interest. 6. If fill is brought onto the site, the applicant shall identify the general location of the fill, and if the site is used for development, the applicant shall either certify that the fill is suitable for development, or specifically declaim any knowledge of its suitability. 7. Prior to final plat approval for any residential subdivision, a conservation easement as defined in Section 18.04.030, "Conservation Easement' and specified in Section 18,116.220, shall be required. 9 As more particularly described in the legal description, attached to this decision as Exhibit A. ZC-08-1/PA-08-1 — BOCC Decision Page 36 of 38 Document No. 2009-168 Exhibit G Ord. 2020-013 West Area: The Board FINDS that rezoning the remainder of the subject property located West of Lower Bridge Way (approximately 410 acres)10, from Surface Mining to Rural Residential will best serve the public health, safety, welfare and convenience if certain conditions are fulfilled. Thus, the Board APPROVES the proposed rezoning subject to a resolution of intent to rezone. The resolution shall include the following conditions: The following conditions shall be included in the Resolution: 1.Within five (5) years or prior to final plat approval for any residential subdivision on the 410 acre area that is the subject of File No. ZC-08-1/PA-08-1, whichever is earlier, the applicant shall obtain from the Oregon Department of Environmental Quality ("DEQ") a "No Further Action"("NFA") determination or the equivalent for a residential use designation for this 410 acre area. 2. Within (5) five years or prior to final plat approval for any residential subdivision on the 410-acre area that is the subject of File No. ZC-08-1/PA-08-1, whichever is earlier, the applicant shall obtain from the Oregon Department of Human Services a determination of "no apparent public health hazard" for a residential use designation for this 410 acre area. 3. Contemporaneously with the site development and prior to the issuance of any residential building permit, the applicant shall complete the County -approved reclamation of the 18-acre area covered by SP-85-23 through a modified reclamation plan substantially consistent with the plan submitted by the applicant dated December 3, 2008. 4. The applicant shall submit a Modification Application for the modified reclamation plan within six months of the date this decision is final. 5. The date the above described decision is final shall be the date the final County decision of approval is signed and mailed or, if the final County decision is appealed, the date the final appellate body affirms the County decision or dismisses the appeal. 6. During the pendency of this Resolution and continuing in conjunction with the DEQ Voluntary Compliance Program and site development, the owner shall implement the DEQ approved Planting Plan dated May 20, 2008 (Exhibit PH-6 in the record) and the DEQ approved Watering Monitoring Plan dated May 20, 2008 (Exhibit PH-7 6 in the record) as the Dust Abatement Plan for the 410-acre site. 7. This Resolution shall expire five (5) years from the date this approval Decision is final, unless the conditions and stipulations set forth above have been satisfied or an extension is granted pursuant to DCC Title 22. 8. Upon the applicant's successful fulfillment of the above conditions and pursuant to DCC 18.136.030B, the County shall amend the County comprehensive plan 10 As more particularly described in the legal description, attached to this decision as Exhibit B. ZC-08-1/PA-08-1 — BOCC Decision Page 37 of 38 Document No. 2009-168 Ord. 2020-013 Exhibit G text and map designation for the 410 acre area in accordance with this Decision from Surface Mine (SM) and Agriculture (AG) to Rural Residential Exception Area (RREA) and remove Surface Mining Site 461 from the County's Goal 5 inventory of significant mineral and aggregate resource sites and shall amend the zoning map designation for the 410 acre area from Surface Mining (SM) and Exclusive Farm Use (EFU) to Rural Residential-10 (RR-10). 9. As part of any residential development approval for the site, the applicant shall include an informational section in its CC&Rs that details the history of the site, including the remediation efforts taken by the applicant and its predecessors in interest. 10. If fill is brought onto the 410 acre site, the applicant shall identify the general location of the fill, and if the site is used for development, the applicant shall either certify that the fill is suitable for development, or specifically declaim any knowledge of its suitability. Dated this of kY k ` , 2009 A ST: Recording Sedleo, BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON TAMMY BA%Y, Chair vc ,�,�----- D NIS R. LUKE, i Chair ALAN UNGER, Commissioner Mailed thisge day of --:4rt 1 2009 THIS DECISION BECOMES FINAL UPON MAILING. PARTIES MAY APPEAL THIS DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS DECISION IS FINAL. ZC-08-1/PA-08-1 — BOCC Decision Page 38 of 38 Document No. 2009-168 Ord. 2020-013 ZOOM EXHIBIT A "160" acre Area Exhibit G Parcel 2 of Minor Land Partition, MP-80-96 , located in Section 15 and Section 16, Township 14 South, Range 12 East, Willamette Meridian, Deschutes County, Oregon, as per Partition plat recorded as Survey CS 00169, Deschutes County Surveyor Records, more particularly described as follows; Beginning at a point on the East line of said Section 16, said point being North 00°05'01" West 388.52 feet from the Southeast corner of said Section 16, as shown on said Minor Partition MP-80-96 ; Thence North 77°39'52"' West 167.14 feet to the beginning of a 1689.00 foot radius tangent curve to the right; Thence Northwesterly along said curve, through a central angle of 17°32'49", an arc length of 517.26 feet, the chord of which bears North 68"53'27" West 515.24 feet; Thence North 60"07'02" West 68.98 feet, to the centerline of Lower Bridge Road as it Is now located; Thence Northerly along said centerline of lower Bridge Road to the centerline of the Deschutes River; Thence Easterly and Southerly along said centerline of the Deschutes River to the East line of the Northwest Quarter of the Southwest Quarter of said Section 15, Township 14 South, Range 12 East, Willamette Meridian; Thence South 00"09'48" East 793.36 feet along said East line to the Southeast corner of said Northwest Quarter of said Southwest Quarter of Section 15; Thence North 89°23'15" West 1315.48 feet along the South line of said Northwest Quarter of said Southwest Quarter of Section 15 to the East line of said Section 16; Thence South 00°05'01" East 969.02 feet along said East Line of Section 16 to the Point of Beginning. Together With: All that portion of the East Half of Section 16, and the Southeast Quarter of Section 9, Township 14 South, Range 12 East Willamette Meridian, Deschutes County, Oregon, more particularly described as follows: Commencing at the North quarter corner of said Section 16 as shown on Partition Plat 1991-47 recorded as Survey CS O4248, Deschutes County Surveyor Records, and as shown on Minor Land Partition MP-80-96, as per Partition Plat recorded as Survey CS 00169, Deschutes County Surveyor Records, said North Quarter comer also being on the North line of Parcel 3 of said Minor Partition MP- 80-96; Thence along said North line of said Parcel 3 the following three courses; Ord. 2020-013 Thence North 39*46' East 375.00 feet; Thence North 47*20' East 300.00 feet, Thence South 73'20' East 631.85 feet to the True Point of Beginning; Exhibit G Thence leaving said North line, and along the approximate westerly "rim" of the Deschutes River canyon the following eight courses; Thence South 20°56'42" West 366.00 feet; Thence South 10"31'16" West 397.00 feet; Thence South 17'31'44" West 218.00 feet; Thence South 2°16'05" West 253.00 feet; Thence South 18°11'14" East 249.00 feet; Thence South 32'05'58" East 241.00 feet; Thence South 43"12'39" East 260.00 feet; Thence South 51°57'00" East 312.00 feet; Thence leaving said "rim" South 8"34'08" West 735.00 feet; Thence South 38"35'41' West 230.00 feet; Thence South 4'48'14" East 163.00 feet; Thence South 27°35'54" East 211.00 feet; Thence South 49'17'51" East 130.00 feet; Thence North 87"33'23" East 149.00 feet; Thence North 57"05'52" East 304.00 feet plus or minus to the centerline of lower Bridge Road (Way) as It Is now located; Thence Northerly and Easterly along the centerline of Lower Bridge Road(Way) as it Is now located to the centerline of the Deschutes River; Thence Northerly and Westerly along the centerline of the Deschutes River to the North line of Parcel 3 of Minor Land Partition MP-80-96, as per Partition plat recorded as Survey CS 00169, Deschutes County Surveyor Records; Thence North 73"20' West 355.42 feet along said North Line to the Point of Beginning. Ord. 2020-013 Exhibit G Excepting therefrom that portion described in deed to Central Oregon Park and Recreation District, recorded December 30, 1986, in Book 139, Page 207, Deschutes County Official Records. 8MEWAL D ATFU /Z 31— 07 Ord. 2020-013 (�dc 2atxt -1b� EXHIBIT 1 "410" acre Area Exhibit G Parcel 1 of Partition Plat 1991-47, located In the West half of Section 16, Township 14 South, Range 12 East, Willamette Meridian, Deschutes County, Oregon, as per Partition plat recorded as Survey CS 04248, Deschutes County Surveyor Records; Together with the following described portion of the East' half of Section 16, and portion of the southeast quarter of Section 9, Township 14 South, Range 12 East Willamette Meridian, Deschutes County, Oregon, Beginning at the North quarter corner of said Section 16 as shown on Partition Plat 1991-47 recorded as Survey CS O4248, Deschutes County Surveyor Records, and as shown on Minor Land Partition MP-80-95, as per Partition Plat recorded as Survey CS 00169, Deschutes County Surveyor Records, said North Quarter corner also being on the North line of Parcel 3 of said Minor Partition MP-80-96; Thence along said North line of said Parcel 3 the following three courses; Thence North 39°46' East 375.00 feet; Thence North 47°20' East 300.00 feet; Thence South 73*20' East 631.85 feet; Thence leaving said North line, and along the approximate westerly "rim" of the Deschutes River canyon the following eight courses; Thence South 20°56'42" West 366.00 feet; Thence South 10°31'16" West 397.00 feet; Thence South 17°31'44" West 218.00 feet, Thence South 2°16'05" West 253.00 feet; Thence South 18*11'14" East 249.00 feet, Thence South 32°05'58" East 241.00 feet; Thence South 43°12'39" East 260.00 feet; Thence South 51°57'00" East 312.00 feet; Thence leaving said "rim" South 8°34'08" West 735.00 feet; Ord. 2020-013 Exhibit G Thence South 38°35'41" West 230.00 feet; Thence South 4"48'14" East 163.00 feet; Thence South 27"35'54" East 211.00 feet; Thence South 49'17'S1" East 130.00 feet; Thence North 87"33'23" East 149.00 feet; Thence North 57'05'52" East 304.00 feet plus or minus to the centerline of Lower Bridge Road (Way) as it is now located; Thence Southerly and Westerly along said centerline of Lower Bridge Road (Way) as it is now located, to the South line of said Section 16; Thence Westerly along said South line, to the South Quarter corner of said Section 16, said corner also being the Southeast corner of Parcel 1 of Partition Plat 1991-47; Thence North 00'23'53" West 5333.11 feet along the East line of said Parcel 1 to the Point of Beginning. IRENEV►`AL DATE- /Z Ord. 2020-013 Return To: Deschutes County Planning Community Development Department 117 NW Lafayette Bend, Oregon 97702 ()vc 200c( -1Grf ax C_ Exhibit G CONSERVATION EASEMENT This grant of conservation easement is made this day of , 2009, by and , hereinafter referred to as "Grantor(s)," in favor of DESCHUTES COUNTY, a political subdivision of the State of Oregon, (hereinafter referred to as "Grantee"). RECITALS WHEREAS, Grantor(s) is/are the sole owners in fee Deschutes County, Oregon, more particularly described as . Deschutes County, Oregon, Property"); and simple of certain real property in (hereinafter referred to as "the WHEREAS, the Board of County Commissioners has determined under the Comprehensive Plan and the Deschutes County Zoning Ordinance that by virtue of its location along the River, the Property possesses or is deemed to possess certain natural, scenic and fish and wildlife habitat values associated with river corridor and riparian areas; and WHEREAS, Grantor(s) has/have applied for and received a land use permit on the Property, and Deschutes County Code (DCC) Section 18.116.220 requires as a condition of approval of land use permits involving property along the river that a conservation easement be entered into for a 10-foot wide strip of land area landward from the ordinary high-water mark; NOW THEREFORE, pursuant to DCC 18.116.220, Grantor(s) hereby agree to place the restrictions and obligations contained as set forth herein on and over that portion of the Property lying within ten feet of the ordinary high water mark of the River under the terms set forth herein (hereafter referred to as the "restricted area") and Deschutes County agrees to accept Grantor(s)'s grant of such restrictions. Scope and Purpose. This Conservation Easement imposes restrictions and affirmative obligations on the Grantor(s) within the restricted area. The purpose of this conservation easement is to maintain and protect the natural, scenic and riparian area values within the restricted area for the protection of fish and wildlife habitat, maintenance of water quality in the river and protection of scenic views as viewed from the river. Nothing in this document shall be construed as granting a right of public access or a public access easement. 2. Restrictions on Grantor's Use of Restricted Riparian Area. Grantor(s)'s use of the restricted area shall be restricted as follows in order to protect the natural, scenic and riparian values identified in Paragraph 1: 2.1 General Use Restrictions A. Grantor(s) shall not use or occupy any portion of the restricted area in a manner that would degrade or diminish the protected values of the restricted area, including, but not limited to: Ord. 2020-013 Exhibit G (1) Depositing of trash, debris, garbage, or other unsightly or offensive material within the restricted area; and (2) Allowing pollutants or sediment originating from the property or the restricted area to enter the river or stream from the restricted area. B. Except upon prior written approval by the Grantee, or where applicable, the Division of State Lands and the Army Corps of Engineers, Grantor(s) shall not: (1) Cause changes in the general topography or land surface (including excavation, road construction, and the quarrying or removing of rocks, sand, dirt, gravel, or other material) within the restricted area; or (2) Cut or remove any vegetation or spray herbicides within the restricted area. Permission shall be granted for (1) removal of diseased or insect -infested trees or shrubs or of rotten or damaged trees that present safety hazards, (2) normal maintenance and pruning of trees and shrubs. Permission shall not be granted for replacement of any existing vegetation in the restricted area with lawn. C. Notwithstanding any other provision in this easement, there shall be no restriction of accepted agricultural practices. 2.2. Restrictions on Structures A. Except as provided herein no new structures of any kind, including mobile homes, shall be placed on or erected within the restricted area. Grantor(s) retains the right to perform ordinary maintenance on all existing buildings and structures within the restricted area, together with the right to replace, rebuild, or substitute any building or structure now existing with a similar building or structure to the extent allowed by the Deschutes County Zoning Ordinance. B. Except upon prior written approval by the Grantee. Grantor(s) shall not place or erect or allow to be placed or erected within the restricted area: (1) Tents, travel trailers, recreational vehicles or camping facilities of any kind; (2) Above -ground utilities, associated structures, or lines; or (3) Water pumping facilities. Approval of new water pumping facilities shall include a review of the proposed location, pumping facility design and visual and sound reducing screening for consistency with the protection of scenic, water quality and habitat values in and along the river. 3. Administration and Enforcement 3.1. Nothing herein shall be construed as creating any affirmative obligations on the part of the Grantee. File No.: Conservation'Easernent 2 Ord. 2020-013 Exhibit G 3.2. Enforcement Generally A. The restrictions set forth in this easement are enforceable by Deschutes County. B. If Deschutes County determines that Grantors are in violation of the terms of this easement or that such a violation is threatened, then Deschutes County shall give written notice to Grantor(s) of such violation and demand corrective action to cure the violation and, where the violation involves injury to the restricted area resulting from any use or activity inconsistent with the purpose of this easement, to restore the portion of the restricted area so injured. C. If Grantor(s) fail/s to cure the violation within 30 days after receipt of notice thereof or under circumstances where the violation cannot reasonably be cured within a 30-day period, fails to begin curing such violation within the 30-day period, or fails to continue diligently to cure such violation, Deschutes County may bring an action at law or in equity in a court of competent jurisdiction to enforce the terms of this easement, to enjoin the violation, ex parte as necessary, by temporary or permanent injunction, and to abate any condition created in the restricted area in violation of this easement. 3.3 No delay or omission by Deschutes County in the exercise of any right or remedy upon any breach by Grantor(s) will impair such right or remedy or be construed as a waiver. 3.4. Enforcement actions under this easement may be taken only against an Owner having fee title to the restricted area, any person having a possessory right under an Owner, and any agent, operator or contractor acting under the authority of such Owner or holder of such possessory rights. A Mortgagee shall be subject to enforcement actions only when Mortgagee takes ownership of the property by foreclosure or otherwise. 3.5. In addition to the remedies set forth under Paragraph 3.2 above, Deschutes County may treat any violation of this easement as a nuisance under current §18.144.040 of the Deschutes County Code (or any comparable successor provision of the Deschutes County Code) and a violation under current §18.144.050 (or any comparable successor provision of the Deschutes County Code). 4. Assignment. Deschutes County may assign any right or interest it may have in this easement only upon consent of the Grantor(s). 5. Extinguishment. This easement shall be extinguished only in the event that Grantor(s) chooses to abandon the land use approval under which this easement is a condition. 6. Successors. The covenants, terms, conditions, and restriction of this easement shall be binding upon, and inure to the benefit of the parties hereto and their respective personal representatives, heirs, successors, and assigns, and all who take through them, whether by voluntary or involuntary transfer, and shall continue as a servitude running in perpetuity with the Property. Dated this day of , 2009 DESCHUTES COUNTY COMMUNITY DEVELOPMENT DEPARTMENT Nick Lelack, Planning Director File No.: Conservation Easement Ord. 2020-013 Exhibit G STATE OF OREGON ) ) ss. COUNTY OF DESCHUTES ) On this day of , 2009, before me, a Notary Public, personally appeared Nick Lelack, the above named Planning Director of Community Development of Deschutes County, who acknowledged the foregoing document on behalf of Deschutes County, Oregon. Notary Public for Oregon My Commission Expires: Dated this day of , 2008. GRANTORS: STATE OF OREGON ) ) ss. COUNTY OF ) On this day of , 2008, before me, a Notary Public in and for said County and State, personally appeared the within named and , who is/are who is known to me to be the identical individual/s described in the above document, and who acknowledged to me that he/she/they executed the same freely and voluntarily. STATE OF ) ss. COUNTY OF Notary Public for My Commission Expires: On this day of , 2008, before me, a Notary Public in and for said County and State, personally appeared the above named known to me to be the of said corporation and who executed the above document on behalf of said corporation. Notary Public for My Commission Expires: File No.: Conservation Easement 4 Legend Subject Property AG - Agriculture SM - Surface Mining RREA - Rural Residential Exception Area COMPREHENSIVE PLAN MAP Lower Bridge Road, LLC Exhibit "D" to Ordinance 2020-013 V V 0 125250 500 750 1,000 1,250 1,500 Feel July 31, 2020 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON Patty Adair, Chair Tony DeBone, Vice Clair Phil Henderson, Commissioner ATTEST: Recording Secretary Dated this _ day of 2020 Effective Date: 2020 ZONINGMAP BOARD OF COUNTY COMMISSIONERS Legend OF DESCHUTES COUNTY, OREGON Subject Property Lower Bridge Road, LLC Patty Adair, Chair EFULB - Lower Bridge Subzone Exhibit "Fe Tony DeBone, Vice Chair to Ordinance 2020-013 EFUTE - Terrebonne Subzone FP - Flood Plain RR10 - Rural Residential SM - Surface Mining V V 0 125250 500 750 1,000 1,250 1,500 Feet July 31, 2020 Phil Henderson, Commissioner ATTEST: Recording Secretary Dated this _ day of 2020 Effective Date: 2020 �vT ES CO o c 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 August 12, 2020 DATE: August 6, 2020 FROM: William Groves, Community Development, 541-388-6518 TITLE OF AGENDA ITEM: DELIBERATION - Thornburg Golf Course Site Plan RECOMMENDATION & ACTION REQUESTED: The Board of County Commissioners (Board) will conduct deliberations on appeals of a golf course for the Thornburg Destination Resort. BACKGROUND AND POLICY IMPLICATIONS: On December 11, 2019, Kameron DeLashmutt on behalf of Central Land and Cattle Company, LLC submitted a request for a Site Plan Review (SP) for the Thornburg Phase A golf course. The golf course includes artificial lakes approved by the Conceptual and Final Master Plans for the destination resort. The Board conducted a public hearing in this matter on June 17, 2020. The record is presently closed, following post -hearing open record periods. FISCAL IMPLICATIONS: None ATTENDANCE: Will Groves, Legal STAFF MEMORANDUM Date: August 6, 2020 To:. Board of County Commissioners From: Will Groves, Senior Planner Re: Appeal of Thornburg Golf Course Site Plan - 247-19-000881-SP, 247-20-000279-A, and 247-20-000282-A The Board of County Commissioners (Board) will conduct deliberations on August 12, 2020 on appeals of a golf course for the Thornburg Destination Resort. I. Background On December 11, 2019, Kameron DeLashmutt on behalf of Central Land and Cattle Company, LLC submitted a request for a Site Plan Review (SP) for the Thornburg Phase A golf course. The golf course includes artificial lakes approved by the Conceptual and Final Master Plans for the destination resort. The other Phase A -required development, including the Overnight Lodging Units (OLUs) and restaurant and meeting rooms, will be proposed in separate site plan applications. They will be developed or financially assured, as required, prior to the closure of sales, rental or lease of any residential dwellings or lots. The resort property is large and comprised of numerous tax lots. The properties subject to this application are located in the southern region of the destination resort. The Thornburg Destination Resort has a lengthy and complex history that began in 2005. Each aspect of the Thornburg Destination Resort project includes decisions by Hearings Officers, the Board, Land Use Board of Appeals (LUBA), Oregon Court of Appeals, and Oregon Supreme Court.' The most recent appeal to LUBA (No. 2019-136) is currently awaiting review. LUBA stayed the appeal pending the outcome of the Supreme Court decision on case S067074. The Planning Division issued an administrative approval without a public hearing on April 1, 2020, ' See the Land Use History summary on pages 3-5 under the Basic Findings section of the administrative decision for file 247-19-000881-SP. 117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005 Q (541) 388-6575 @ cdd@deschutes.org @ www.deschutes.org/cd determining the Applicant met the applicable criteria. The Board conducted a public hearing in this matter on June 17, 2020. The record is presently closed, following post -hearing open record periods and Board Order 2020-045 to receive two additional party arguments. II. 150-day Issuance of a Final Local Decision The 150-day period for issuance of a final local decision is currently September 6, 2020. III. KEY ISSUES The Board will is asked to deliberate and decide on the several matters. This deliberation summary of party positions is largely composed of direct quotes from record materials. Some quotes have been edited for brevity, clarity, or issue focus. Staff notes that the Applicant identifies over 120 points of contention in Applicant's Exhibit 48. Staff focuses, below, on key issues and interpretative matters, in order to receive Board direction for the drafting of a decision in this case. 1. Does the County have jurisdiction to decide this application? Opponents: Two appeals of the County Tentative Plan approval of Phase A-1 governing configuration of the subject site remain undecided. Until there are final decisions remanding both cases to the county, jurisdiction will remain in the appellate bodies. Accordingly, the county lacks jurisdiction to act upon this application and must deny it, at least for the present time. Applicant: This case isn't dependent on rulings in the tentative plan. The Tentative Plan approval doesn't bind the Site Plan. Staff. Staff recommends the Board consider whether to concur with the Applicant, as staff believes that this golf course site plan is not dependent on the appealed Tentative Plan. 2. Does the application comply with FMP Condition #17? Issue: FM Condition #17 requires: All development within the proposed resort shall meet all fire protection requirements of the Redmond Fire Department. Fire protection requirements shall include all minimum emergency roadway improvements. Opponents: The fire danger when heavy excavating, grading and construction equipment is used on the very dry brush of the subject site will be extreme. That is why hydrants are required at this File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 2 of 9 point, and the requirement must be set out in the conditions of approval. The fire marshal's remaining requirements must also be incorporated into any conditions of approval for this portion of the proposed project. It remains unclear whether the area encompassed by this site plan has yet been annexed to the Redmond Fire District. Applicant: The entire property has been annexed into the Redmond Fire district (see Applicant's Exhibit 29: Annexation Documentation). Nothing is required by Redmond Fire until such time that we have combustible materials on site for buildings (See Applicant's Exhibit 16, Email from Clara Butler RFD). There is no access needed, nor any water, and certainly not any fire hydrants. Furthermore, condition #4 specifies that emergency access roads are required prior to Final Plat Approval or, the issuance of building permits. This site plan has neither. This condition is met without any further requirements. The language on page 32 of the staff decision reading: "Moreover, as required under DCC 18.124.060, the Applicant shall provide written confirmation from the Redmond Fire Department that all applicable fire safety standards are met; including this development's compliance with the resort's Wildfire/Natural Hazard Protection Plan shall be submitted prior to commencement of construction, earthmoving, or clearing" should be stricken. Staff: Staff recommends the Board consider striking the cited language above, as Staffs concern has been addressed by the cited email from Clara Butler, Redmond Fire, and the subject property has been wholly annexed to the Fire District. 3. Is recreational use of the lakes/beaches proposed or approved? Opponents: Opponents raise a number of issues related to the recreational use of the lakes. Applicant: At this time the golf course is the only recreational amenity on the site plan. Staff, While "beaches" are shown on the submitted site plans, the Applicant's burden of proof does not describe or analyze any recreational use of the lake or any supporting facilities. Because such uses, at minimum, would require demonstration of compliance with DCC 18.124.060, as well as other site plan review requirements, staff recommends the Board consider a condition of any approval limiting recreational use of the site plan area to golfing and specifically precluding other recreational activities such as watersports and beach access until such time that these uses are approved under site plan review 4. On "collateral attack" issues does the Board support the Applicant's proposed approach of identifying "collateral attacks" and making alternative findings on the merits? File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 3 of 9 Issue: LUBA has found2: ***[I]n a variety of contexts both the Court of Appeals and LUBA have held that decisions rendered in early stages of a multi -stage approval process can be final appealable land use decisions. In such cases, issues that could have been raised, but were not raised in early stages, and issues that were raised and resolved adversely to a petitioner in early stage decisions that were not appealed, generally may not be raised by that petitioner in appeals of a later stage decision. Carlsen v. City of Portland, 169 Or App 1, 16, 8 P3d 234 (2000); Piltz V. City of Portland, 41 Or LUBA 461, 467 (2002); Bauer v. City of Portland, 38 Or LUBA 715, 721 (2000); Westlake Homeowners Assoc. v. City of Lake Oswego, 25 Or LUBA 145, 148 (1993); Hoffman v. City of Lake Oswego, 20 Or LUBA 64, 70-71 (1990); J.P. Finley & Sons v. Washington County, 19 Or LUBA 263, 270 (1990). In rejecting arguments in appeals of subsequent stage land use decisions that in reality are a belated challenge to earlier stage land use decision, we have sometimes referred to those arguments as a "collateral attack" on those earlier stage land use decisions. Piltz, 41 Or LUBA at 467; Bauer, 38 Or LUBA at 721.2 Applicant and opponents disagree if argument in the present case represents a collateral attack on prior decisions. Applicant: Numerous issues raised by opponents on appeal of the site plan were resolved during the County's review of the FMP and CMP. The County conducted an extensive review of both documents and found that they achieve compliance with all issues relevant to approval of those plans. Both of those proceedings were very extensive and considered a wide range of legal argument, materials, plans and impacts. The Applicant lists the issues they believe precluded from further argument in Exhibit 46. Kleinman: Appellant and COLW have set out valid "attacks" upon the Applicant's assertions of compliance with the approval standards herein. There is nothing impermissible or collateral about those challenges. Moreover, they are firmly sounded in the evidence and have not been effectively rebutted by the Applicant. As we have consistently pointed out, the golf course and lakes, and related water consumption for construction and for use and maintenance going forward, have not been approved in an earlier proceeding. The Applicant chose to chop Phase A into smaller, bite -size pieces, and must live with the result. This is a fresh new site plan application. Opponents' challenges are not subject to the case law cited by the Applicant with respect to "improper collateral attack." Rather, the issues we have raised are properly before you and must be decided on the merits. Staff: Staff recommends the Board consider whether to determine that the issues the Applicant identifies in Exhibit 46 are "collateral attacks". In Exhibit 46, the Applicant provides "collateral attack" arguments and, in the alternative, analysis of the issues on their merits. Staff recommends the z Widgi Creek Homeowners Association v. Deschutes County, 71 Or LUBA 821 (2015) File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 4 of 9 Board consider whether to direct staff to draft a decision that, where supported by the record, "collateral attacks" are identified and also alternative findings are provided on the merits. 5. Conditions of Approval of FMP Misstated by Appealed Decision: Applicant: The Administrative Decision appealed by COLW and Gould inaccurately lists the conditions of approval of the FMP. A number of the CMP conditions were found by the FMP decision to be "satisfied." Therefore, those CMP conditions were not made conditions of approval of the FMP. These are CMP Conditions 3, 8, 9, 11, 13, 14.A, 14.13, 15, 24, 30, and 37. Also, Condition 28 was replaced by Condition 38 and 39 and should not have been listed as a relevant approval criterion for review of the golf course application. Staff. Staff concurs and recommends the Board consider amending this as part of the decision. Staff is unaware of any party contesting this correction. 6. Is parking required at this time for the golf course and lakes? Applicant: DCC 18.116.030, Off Street Parking and Loading, by its plain terms, does not require the Applicant to provide parking spaces for development of its golf course. It says: "fo]ff-street parking spaces shall be provided at the time a new building is hereafter erected or enlarged or the use of building existing on the effective date of DCC Title 18 is changed." The Applicant is not proposing to construct a new building. It is not asking to enlarge a building or change its use. Therefore, off-street parking spaces are not required. The condition of approval requiring the Applicant to obtain approval of off-street parking (Condition E.), therefore, is not supported by the applicable law and should be removed. Likewise, bicycle parking spaces are not required. DCC 116.031 requires bicycle parking only for "uses that require off-street motor vehicle parking." Opponents: This application for a site plan for a golf course and lakes is incomplete where it fails to address the site plan criteria for the required parking, walking paths, lighting and structures/facilities for the golf course and lakes. A mere condition of approval deferral to allow addressing these other essential components at a later date is not legally sufficient. The site plan application has to complete so all elements under the code that must be satisfied for a site plan for a particular use can be assessed. Staff. Staff recommends the Board consider not adopting the Applicant's interpretation of DCC 18.116.030. There are many circumstances e.g. (parks, other outdoor activities, food carts) where a use will attract a significant number of new vehicles without enlarging or changing the use of a building. Staff recommends the Board interpret this criterion to specify at what time parking must File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 5 of 9 be provided for new buildings, but not to preclude parking requirements for uses that do not involve buildings. In addition (or in the alternative), staff recommends the Board consider finding that permitting a use through site plan review that will necessarily be attended by the public in cars but does not provide for parking would likely not provide a "safe environment" (DCC 18.124.060(C), and would not provide for "separations between pedestrians and moving and parked vehicles" (DCC 18.124.060(E). Since the Applicant has proposed to provide parking for the golf course as part of site plan review for the clubhouse and other golf facilities to reviewed under future site plan(s), staff recommends the Board consider requiring a condition of approval precluding golfing or other recreational use of the golf course and lakes until parking has been reviewed, and approved through site plan review, as well as constructed. This would allow the Board, in the decision, to make findings that the golf course, as conditioned, is a use that requires no parking or bicycle parking at this time and does not need findings of compliance with DCC 18.116.030 and .031. The Board should also consider finding that, in the alternative, to the extent that the present decision defers determination of compliance with parking standards to a later proceeding, a later site plan review will be required and will provide a full public right to participate in the subsequent approval stage. 7. What documents filed by Opponents during the rebuttal period must be disregarded? Opponents: Anuta's rebuttal submission was limited to evidence or testimony that rebutted submissions by the applicant on July 1, 2020. Such a rebuttal was completely appropriate, and was authorized by the County rules. Applicant: Proper rebuttal responds to information filed during the first post -hearing comment period. Most of the documents filed by opponents during the rebuttal period contain new evidence rather than rebuttal evidence. The Applicant, therefore, asks the Board to expressly decline to include new evidence that is not rebuttal as a part of the record of this appeal. Mr. DeLashmutt has compiled a list of new evidence that is not proper rebuttal that is attached as Exhibit 47. The DCC 22.24.140(D), Continuances or Record Extensions, provides: D. Leaving record open. If at the conclusion of the initial hearing the Hearings Body leaves the record open for additional evidence or testimony, the record shall be left open for at least 14 additional days, allowing at least the first seven days for submittal of new written evidence or testimony and at least seven additional days for response to the evidence received while the record was held open. Written evidence or testimony submitted during the period the record is held open shall be limited to evidence or testimony that rebuts submitted evidence or testimony. File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 6 of 9 Staff: Through Order No. 2020-035, the Board accepted the applicants request to, "...open the record to accept Anuta's July 27, 2020 response for the limited purpose of determining whether the claims made in Anuta's July 8, 2020 rebuttal letter are or are not admissible rebuttal argument." Staff recommends the Board consider whether to concur with the applicant's final arguments on these issues. This would include: 1) Identifying rejected argument and evidence, and 2) Also, in the alternative, addressing the arguments on their merits. 8. Does the proposal comply with the Americans with Disability Act ("ADA') and DCC 18.124.060(D)? Issue: DCC 18.124.060(D) requires: D. When appropriate, the site plan shall provide for the special needs of disabled persons, such as ramps for wheelchairs and Braille signs. Opponents: This goal 8 destination resort is open to the public and it's recreational assets must meet the ADA criteria not just for golf cart pathway width and surfaces but golf cart access for barrier free play on the Tee's, Fairways, Greens together with all cart paths, shelters and parking areas. Therefore approximate location of golf holes is insufficient to show today that this Site Plan meets such barrier free access to this public recreation. The beach areas at the large lake are not shown to meet ADA boating launch needs. Furthermore no ADA route is shown to the proposed lakes. Applicant: At this time, the golf course is the only recreational amenity on the site plan. Golf cart passages don't need to be paved within the golf course. Applicants Exhibit 17, pg. 15, the Guidelines for ADA compliance by the US Access Board state: While golf cart passages must be usable by golf cars, they don't need to have a prepared surface, and may be part of a golf car path. That said, the Thornburgh golf course will be ADA compliant. Staff. Staff has previously recommended a condition of approval precluding recreational use of the lakes/beaches until these uses are fully reviewed through a later site plan approval. This condition would remove the necessity of resolving the "the special needs of disabled persons" for these facilities at this time. Staff recommends the Board consider finding that Applicant's Exhibit 17, the Guidelines for ADA compliance by the US Access Board, outlines the requirements for the golf course to accommodate "the special needs of disabled persons". Staff also recommends the Board consider a condition of approval requiring compliance with Guidelines for ADA compliance by the US Access Board, as elaborated by the "Accessible Golf Courses" information provided in Applicant's Exhibit 17. File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 7 of 9 9. Does the proposal comply with 18.124.060(B)? Issue: DCC 18.124.060(B) requires: B. The landscape and existing topography shall be preserved to the greatest extent possible, considering development constraints and suitability of the landscape and topography. Preserved trees and shrubs shall be protected. Opponents: The Applicant in response to this requirement identifies nothing that will be preserved and merely asserts having "a minimalist philosophy" and "a light touch." More is required of a site plan than that or else this site plan requirement is meaningless. There must be a showing of what is to be preserved and how. If "[p]reserved trees and shrubs shall be protected," we need to know what are the "preserved" trees and shrubs in the first place. Applicant: The Applicant provides substantial details in Applicant's Exhibit 46 how this issue was resolved by the far broader standards of the CMP and FMP, including the WMP/FWMP, the Natural Characteristics Report (Applicant's Exhibit 42), the Wildlife and Habitat Report (Applicant's Exhibit 43), and the Open Space Management Plan (Applicant's Exhibit 44). Extensive planning and analysis was completed to comply with the CMP/FMP that meets this standard. Further the Applicant has provided evidence that it will use a light touch to build the golf course that will preserve the landscape and topography to the greatest extent possible. The site plan itself shows the fairway lines, which represent the area that typically would be cleared, completely. The materials have stated that, while we may clear everything within those corridors on some fairways, that we will use extreme efforts to leave as much vegetation within those corridors as possible. The areas outside of the golf fairway corridors is covered by condition #34 which deals with the restoration of disturbed native vegetation. The WMP (Applicant's Exhibit 38 and Ex. P) deals with the timing of when restoration efforts take place. Staff: Staff recommends the Board consider whether to direct staff to draft a decision in accordance with the Applicant's final argument on this issue. 10. Does the proposal comply with FMP Condition #10? Issue: FMP condition #10 requires: Applicant shall provide, at the time of tentative plat/site plan review for each individual phase of the resort development, updated documentation for the state water right permit and an accounting of the full amount of mitigation, as required under the water right, for that individual phase. Parties disagree if the Applicant has provided the updated documentation and accounting. Applicant: Applicant's Exhibit AA, the Mitigation Debit Table, shows the mitigation required for this phase of development as required by Condition 10. In the TP decision, Hearing Officer Olsen found Condition 10 was primarily an informational requirement and requirement for an accounting of the File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 8 of 9 amount of mitigation needed under the water right. The BOCC in the TP remand also noted that mitigation would be required before pumping water for the phase. Staff noted that Applicant's Exhibit AA, the Mitigation Debit Table, which detailed the amount of mitigation needed for this site plan, was consistent with the BOCC directions. Staff was correct in finding compliance with Condition #10. Opponents: Although the Resort holds a permit, which has not yet been cancelled, that permit has expired and no extension of that permit currently exists. And the Applicant has admitted that an extension is needed, before it can use the permit. In short, there is currently insufficient water currently available to the Resort for the proposed use. There is certainly not enough to do what the application proposes. Opponents also challenge the water accounting for neglecting additional water demands, such as reservoir evaporation, construction dust suppression, and irrigation demands likely in the high desert. Staff: Staff recommends the Board consider whether to direct staff to draft a decision in accordance with the Applicant's final argument on this issue. III. NEXT STEPS The Board will conduct deliberations on August 12, 2020 on appeals of the Thornburg golf course. DESCHUTES COUNTY PLANNING DIVISION Will Groves, Senior Planner Attachment Ref No. 2020-08-06 Thornburg Golf Course Deliberation Matrix 177 2020-08-05 Order No 2020-045 Signed 176 File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 9 of 9 pn c c o N o a N N ° 0 u Z ' o to L > m y 0)v o a 7 _ td O 7E 0: y C o N N O m Y CO Cc''L c° t0 C.° c `m'r v Tug. 7 o v u u U C C v tap m w C O N '0u 0 y 0 0 T L C N Mna p O m N o � c a N N OO C C C: a ° C O � Y tU 0 u v w o Y m L 7 N _ O a uCL byC c ^ u E °u - o E o o Y v a L c Nt N a N 3 . a po c T C O o. a E n N O v V Ou a Z C fl. 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E n o w ° C> 0 m 0 C m r n� C 0 3° E _u aj ar o y c _ M a c y vtm' n E u d Q u N a.. m N C bA N d X O a) X N y n 7 Y N aJ h00 >> ry al O' IV a/ !Ac y 0O Ql aL+ m O X m Y C Y i i a) Ql 7 L ba Y �n in c> Y v m 3 N c 0 G L m v ° m C a m m a ° a m° M y is v a v c> a w a-,v u ° m o o c . ., >> .Q u a+ N �. N L y y C i O C •. 7 0 X a v C pp O C cu E m 0 N G C C d a 0 m in Om-0 N E L �, w ar 0 0 Qm m v m v L o c L L nL .O H u O. a1 o u c. u ai o w n O m a V a Q. n. u o t c e oo C e N .. w a Y a1 o Ear e C` a c o + °1 m a e° :: y r: d E o o N •°p o a o o .. o a► E L. o a3u ¢ 0.:.8.• o+ 4 0 o d u i oPi e o r oa oav�3 o,o�E.�w,•_ G! � n n m a REVIEWED LEGAL COUNSEL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Regarding a Record Objection in File Nos. 247-19-000881-SP, 247-20-000279-A, and * ORDER NO.2020-045 247-20-000282-A. WHEREAS, consistent with ORS 197.763, Deschutes County Code ("DCC") 22.24.140(D) requires that "[i]f at the conclusion of the initial hearing the Hearings Body leaves the record open for additional written evidence or testimony, the record shall be left open for at least 14 additional days, allowing at least the first seven days for submittal of new written evidence or testimony and at least seven additional days for response to the evidence received while the record was held open. Written evidence or testimony submitted during the period the record is held open shall be limited to evidence or testimony that rebuts previously submitted evidence or testimony;" and WHEREAS, the Board elected to set an initial deadline at 5:00 p.m. on July 1, 2020, for any interested party to submit "new written evidence or testimony" (the "First Open Record Period"), followed by a second deadline at 5:00 p.m. on July 8, 2020, for the submission of "evidence or testimony that rebuts previously submitted evidence or testimony" (the "Second Open Record Period"); and WHEREAS, consistent with DCC 22.24.130(D), the Board likewise set a deadline at 5:00 p.m. on July 15, 2020, for submittal of final legal argument by applicants Central Land and Cattle LLC ("Central Land") and Kameron DeLashmutt ("DeLashmutt"); and WHEREAS, on July 15, 2020, Liz Fancher ("Fancher") as an attorney for the applicants, and DeLashmutt submitted an objection to the record arguing that "new evidence" and "new argument" provided by Karl Anuta ("Anuta") and Annunziata Gould ("Gould") during the Second Open Record Period "should be disregarded as improper rebuttal"; and WHEREAS, on July 27, 2020, Anuta submitted a response to the record objection arguing that, "My submission was limited to evidence or testimony that rebutted submissions by the applicant on July 1, 2020. Such a rebuttal was completely appropriate, and was authorized by the County rules"; and WHEREAS, on July 28, 2020, Anuta submitted a response to the record objection arguing that, "My submission was limited to evidence or testimony that rebutted submissions by the applicant on July 1, 2020. Such a rebuttal was completely appropriate, and was authorized by the County rules"; and WHEREAS, on July 29, 2020, DeLashmutt submitted a response to Anuta's July 27, 2020 submittal arguing that, "We ask the Board to open the record to accept Anuta's July 27, 2020 response for the limited purpose of determining whether the claims made in Anuta's July 8, 2020 rebuttal letter are or are not admissible rebuttal argument. We ask that you accept Anuta's response to the 2018 Neuman letter (page 1 of the July 8, 2020 Anuta letter) and reject Anuta's new argument that a reservoir permit is required for the golf course lakes. We ask in your decision that you both reject the new argument and address it on the merits;" and PAGE 1 of 2- ORDER No. 2020-045 WHEREAS, on July 29, 2020, Fancher stated, "Central Land and Cattle Company, LLC asks that if the Board reopens the record to consider the Anuta letter of July 27, that it accept Mr. DeLashmutt's letter of July 29 as his final argument."; and WHEREAS, the Board has given due consideration to the record objections and responses; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY FINDS AND ORDERS as follows: 1. The Board accepts Anuta's July 27, 2020 response into the record for the limited purpose of determining whether the claims made in Anuta's July 8, 2020 rebuttal letter are or are not admissible rebuttal argument 2. The Board receives the July 29, 2020 DeLashmutt response as the Applicant's only final argument in response to this new record submission. 3. The written record remains closed to other submittals at this time. Dated this 15 of 14,Lj, 2020 PAGE 2 of 2- ORDER No. 2020-045 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON P TTI ADAIR, Chair A THON eB ,Vice Chair /?Q - - PHILIP G. HENDERSON, Commissioner