2020-363-Order No. 2020-058 Recorded 10/23/2020REVIEWED
LEGAL COUNSEL
Recorded in Deschutes County CJ2020-363
Nancy Blankenship, County Clerk
Commissioners' Journal 10/23/2020 3:49:39 PM
pC,�uTFSCOG�< IIIIIIIIII'IIIIIIIIIIIIIIIII III
2020-363
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
Order to Waive Transcript Requirements
under DCC 22.32.024 for File Nos. 247-19- * ORDER NO. 2020-058
000913-LL and 247-19-000914-TP.
WHEREAS, on August 14, 2020, the Hearings Officer approved Application Nos. 247-19-
000913-LL and 247-19-000914-TP; and
WHEREAS, on August 26, 2020, Scott and Carol Ann Smallwood, the Applicants, appealed
(File No. 247-20-000580-A) the Hearings Officer's decision in File Nos. 247-20-000913-LL and 247-
20-000914-TP; and
WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County
Commissioners (Board) discretion on whether to hear appeals of Hearings Officer's decisions; and
WHEREAS, the Board has accepted review of these applications on appeal pursuant to
Board Order no. 2020-053; now therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. Pursuant to Section 22.32.024, the Board waives the requirement that the
appellant provide a complete transcript for the appeal hearing.
DATED this day of , 2020.
ATTEST:
BOARD OF COUNTY COMMISSIONERS
OF ESCHUTES COUNTY, OREGON
PATTI ADAIR, Chair
ANTHONY DeBONE, Vice Chair
Recording Secretary
ORDER No. 2020-058
PHILIP G. HENDERSON, Commissioner
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners BOCC Wednesday Meetina of October 14, 2020
DATE: October 5, 2020
FROM: Kyle Collins, Community Development, 541-383-4427
TITLE OF AGENDA ITEM:
Preparation for Public Hearing: Request of Waiver of the DCC 22.32.024 - Transcript
Requirements and Consideration of Order No. 2020-058
The Board of County Commissioners (Board) will conduct a meeting on October 14, 2020 and
consider waiving the transcript requirement of DCC 22.32.024 for a public hearing to be held on
November 9, 2020. The Board accepted the request to hear an appeal of a Hearings Officer
decision (File Nos. 247-19-000913-LL, 247-19-000914-TP) pursuant to Board Order No. 2020-053,
during a meeting on September 9, 2020.
t t..., .,
MEMORANDUM
TO: Board of County Commissioners
FROM: Kyle Collins, Associate Planner
DATE: October 5, 2020
RE: Waiving Transcript Requirements for Appeal of Hearings Officer Decision on a
Property Line Adjustment and Tentative Plan review for a 10-lot subdivision in the
Urban Area Reserve Zone (UAR10).
The Board of County Commissioners (Board) will conduct a meeting on October 14, 2020 and
consider waiving the transcript requirement of DCC 22.32.024 for a public hearing to be held on
November 9, 2020. The Board accepted the request to hear an appeal of a Hearings Officer decision
(File Nos. 247-19-000913-LL, 247-19-000914-TP) pursuant to Board Order No. 2020-053, during a
meeting on September 9, 2020.
I. BACKGROUND
DCC 22.32.024(A) states the following as it relates to appeals and transcript requirements:
"Except as otherwise provided in DCC 22.32.024, appellants shall provide a complete transcript
of any hearing appealed from, from recorded magnetic tapes provided bythe Planning Division."
However, staff notes that DCC 22.32.024(D) provides for the following exemption to these
requirements:
"Notwithstanding any other provisions in DCC 22.32, the appeal hearings body may, at any time,
waive the requirement that the appellant provide a complete transcript for the appeal hearing."
The Applicants, Scott and Carol Ann Smallwood, have requested that the transcript requirements
for the upcoming public hearing on November 9, 2020 be waived in consideration of the other
available options at this point in time for reviewing the evidence and record presented at the initial
Hearings Officer hearing conducted on June 30, 2020.
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708 6005
� (541) 388-6575 cz cdd@deschutes .org @ www.deschutes.org/cd
Staff concurs with the Applicants' rationale, as several other options exist for reviewing the Hearings
Officer hearing materials in detail, including audio and video recordings. As such, staff recommends
that the Applicants' request to waive the transcript requirements of DCC 22.32.024 be approved.
Attachments:
Document Item No.
2020-10-14 - DRAFT Order No. 2020-058 (Waiving Transcript Requirements) 1
247-19-000913-LL, 19-914-TP Page 2 of 2
CORRECTED HEARINGS OFFICER DECISION
On August 14, 2020, the county mailed the Hearings Officer decision which included a July 13, 2020
date of decision on page 67 of the decision. The date of decision is corrected to August 13, 2020.
FILE NUMBERS: 247-19-000913-LL, 247-19-000914-TP
OWNER/ Scott and Carol Ann Smallwood
APPLICANT:
PROPOSAL: The Applicant requests two property line adjustments to increase the
size of the subject property to 100.1 acres. Concurrent therewith, the
Applicant requests a tentative plan approval for a 10-lot subdivision in
the Urban Area Reserve Zone (UAR10).
LOCATION: The subject property has an assigned address of 19800 Pacific Heights
Road, Bend; and is further identified on County Assessor Tax Map 17-
12-07, as Tax Lot 501.
STAFF CONTACT: Kyle Collins, Associate Planner
Phone: 541-383-4427
Email: Kyle Collins@deschutes.org
DOCUMENTS: Can be viewed and downloaded from:
www.buildingpermits.oregon.gov and http://dial.deschutes.ore
1. STANDARDS AND APPLICABLE CRITERIA:
Deschutes County Code
Title 17 - Subdivisions
Chapter 17.12, Administration and Enforcement
Chapter 17.16, Approval of Subdivision Tentative Plans and Master Development
Plans
Chapter 17.24, Final Plat
Chapter 17.36, Design Standards
Chapter 17.44, Park Development
Chapter 17.48, Design and Construction Specifications
Title 18 - County Zoning
Chapter 18.80, Airport Safety Combining Zone (AS)
Title 19 - Bend Urban Area Zoning Ordinance
Chapter 19.12, Urban Area Reserve Zone (UAR10)
Chapter 19.72, Flood Plain Combining Zone (FP)
Chapter 19.76, Site Plan Review
Hearings Officer Decision
247-19-000913-LL; 247-19-000914-TP Page 1 of 67
Title 22- Deschutes County Development Procedures Ordinance
Oregon Revised Statutes (OAR) Chapter 92, Subdivisions and Partitions
II. BASIC FINDINGS:
LOCATION: The subject property has an assigned address of 19800 Pacific Heights Road,
Bend; and is further identified on County Assessor Tax Map 17-12-07, as Tax Lot 501
LOT OF RECORD: The subject property is a legal lot of record identified as Parcel 1 of Minor
Partition MP-80-70. The subject property was altered to its current configuration pursuant to
property line adjustment file no. 247-18-000311-LL.
ZONING: The subject property is zoned Urban Area Reserve (UAR10) and is designated
Urban Reserve Area on the Deschutes County Comprehensive Plan Map. A small area in the
northwest portion of the subject property is located in the Flood Plain Zone (FP).'
PROPOSAL: The Applicant requests two property line adjustments to increase the size of
the subject property to 100.1 acres. Concurrent with the property line adjustments, the
Applicant requests a tentative plan approval for a 10-lot subdivision in the Urban Area
Reserve Zone (UAR10).
SITE DESCRIPTION: The subject property is 100.00 acres in size (100.1 acres after the
proposed property line adjustments) and is irregular in shape. The subject property is
undeveloped and has a vegetative cover of juniper trees, sagebrush, and other native
vegetation. The site is primarily level, with a steep descent towards the Deschutes River
canyon along the western and northwestern portion of the parcel. The property is accessed
via Pacific Heights Road, a rural local right-of-way to the east which extends from O.B. Riley
Road. A private airstrip identified on Deschutes County Zoning Maps is located in the central
portion of the property!
SURROUNDING LAND USES: To the west, the subject property is bounded by the
Deschutes River. West of the river are several larger properties within the Exclusive Farm
Use (EFU) Zone. To the east of the subject property is the Pacific Cascade Heights
subdivision. The Pacific Cascade Heights subdivision contains several parcels developed
with single-family dwellings in the UAR10 Zone. To the south of the subject property are two
(2) additional parcels in the UAR10 Zone (Tax Lots 601 and 503), both of which are
undeveloped. To the west and north of the subject property is a large parcel that is split
zoned (UAR10 and EFU). The large parcel is publicly owned and operated by the Oregon
The staff report noted there was a mapping error that led to uncertainty regarding whether the property
might partially be located in the Airport Safety Combining Zone. It was determined the property is not in that
zone.
2 The Hearings Officer understands the airstrip has been, or will be, abandoned.
247-19-000913-LL, 19-914-TP Page 2 of 67
Parks and Recreation Department as a portion of Tumalo State Park. There are several
parcels designated as a Surface Mining site (County Assessor Tax Map 17-12-18, as Tax Lot
100; and County Assessor Tax Map 17-11-13, as Tax Lots 100, 103, 104, 200, 504, and 505)
approximately 0.16 miles to the southwest of the subject property. Properties
approximately 0.3 miles to the east and northeast of the subject property are located in the
Multiple Use Agricultural Zone and are principally developed with single-family dwellings.
The Urban Growth Boundary for the City of Bend is located approximately 0.57 miles east
of the subject property.
NOTICE REQUIREMENT: The Applicant complied with the posted notice requirements of
Section 22.23.030(B) of Deschutes County Code (DCC) Title 22. The Applicant submitted a
Land Use Action Sign Affidavit, dated January 13`", 2020, indicating the Applicant posted
notice of the land use action on the same day. Notice of this application was provided to all
property owners within 250 feet of the exterior boundaries of the proposed subdivision.
Notice of the public hearing was mailed on June 9, 2020.
PUBLIC COMMENTS: Public comments received in response to the notice of application are
discussed here. Comments received at the public hearing and during the open record
period are addressed below.
Rob Kelleher, representing the homeowners association of the Pacific Cascade Heights
subdivision to the east raised issues regarding the effect of a road maintenance agreement
for Pacific Heights Road, the local right-of-way which provides access to the subject parcel.
The correspondence is quoted in part below and included in full in the record.
The recently completed Pacific Cascade Heights Development sits immediately to the east
of the Smallwood subdivision. The Smallwood subdivision application identifies road
access to the new subdivision via Pacific Heights Road. As identified on the enclosed Road
Maintenance Covenant for Pacific Cascade Heights, the property owners of Pacific
Cascade Heights are solely responsible for the repair and maintenance of the roads within
Pacific Cascade Heights including both Pacific Heights Road and Northern Estates Drive.
The application for File No. 247-19-000913-LL, 19-914-TP does not include a road
maintenance agreement or covenant for their use of Pacific Heights Road. Based on the
terms of the Pacific Cascade Heights Road Maintenance Covenant, Section 4, if either of
the Roads in Pacific Cascade Heights are used to gain access to real estate that is not part
of the Pacific Cascade Heights property and that access does not included a satisfactory
road maintenance agreement or covenant then we can terminate the Pacific Cascade
Heights road maintenance covenant.
Pacific Cascade Heights requests that Deschutes County either accept all the road
maintenance and repair of Pacific Heights Road upon acceptance of application 247-19-
000913-LL, 19-914-TP, or stipulate approval of application 247-19-000913-LL, 19-914-TP
shall be based on a mutually agreeable road maintenance agreement or covenant
between Pacific Cascade Heights and the Smallwood subdivision.
247-19-000913-LL, 19-914-TP Page 3 of 67
Additional comments were received from several neighboring property owners which fall
into the following general categories:
• Access to adjacent public lands;
• Wildlife habitat preservation;
• Application of the Landscape Management Combining Zone approval criteria;
• Application of the Surface Mining Impact Area Combining Zone approval criteria;
• Design standards of the Oregon Scenic Waterways program; and
• Setback standards to adjacent river corridors and waterways.
PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several agencies and
received the following comments:
Deschutes County Building Division, Randy Scheid
NOTICE: The Deschutes County Building Safety Divisions code mandates that Access, Egress,
Setbacks, Fire & Life Safety, Fire Fighting Water Supplies, etc. must be specifically addressed during
the appropriate plan review process with regard to any proposed structures and occupancies.
Accordingly, all Building Code required items will be addressed, when a specific structure,
occupancy, and type of construction is proposed and submitted for plan review.
Deschutes County Senior Transportation Planner, Peter Russell
I have reviewed the transmittal materials for 247-19-000914-LL/914-TP for a 10-unit subdivision
on 100 acres in the Urban Area Reserve (UAR-10) and Flood Plain (FP) zones at 63765 OB Riley
Road, aka 17-12-07, Tax Lot 501.
The applicant has submitted a Site Traffic Report (STR) which complies with Deschutes County
Code (DCC) 18.116.310. Staff has reviewed the Aug. 2, 2019, traffic study submitted by the
applicant's consultant, Transight Consulting, and agrees with the STR's methodology, findings,
and recommendations.
The property will be accessed via Pacific Heights Road, which is a public road not maintained by
Deschutes County, which is otherwise known as a Local Access Road. Functionally, Pacific Heights
is classified as a local road. The County still remains the permitting authority. The applicant will
need to ensure the roads serving the subdivision are constructed to County standards as well as
having a maintenance agreement that complies with DCC 17.16.105.
Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of $4,448
per p.m. peak hour trip. County staff has determined a local trip rate of 0.81 p.m. peak hour
trips per single-family dwelling unit, therefore the applicable SDC is $3,603 ($4,448 X 0.81) per
each lot. The SDC is due prior to issuance of certificate of occupancy, if a certificate of occupancy
is not applicable, then the SDC is due within 60 days of the land use decision becoming final.
247-19-000913-LL, 19-914-TP Page 4 of 67
Deschutes County Environmental Soils Division Todd Cleveland
Each lot or parcel of the proposed subdivision must have a complete approved site evaluation
.prior to final plat approval.
Deschutes County Road Department, Cody Smith
I have reviewed the application materials for the above -referenced file number, proposing a 10-
lot subdivision of Tax Lot 501 in 17-12-07. The subject property is accessed by Pacific Heights
Rd. Road Department records indicate that Pacific Heights Rd has the following attributes where
it abuts the subject property.,
• Road Status - Local Access Road (Public, Not County Maintained)
• Surface Type - Asphalt Concrete
• Surface Width - 24 ft.
• Functional Classification - Rural Local
• Right of Way Width - 60 ft.
• Right of Way Instrument - Pacific Cascade Heights Subdivision Plat (2017-42220)
The proposed tentative plan includes an extension of Pacific Heights Road that terminates at the
southern boundary of the subject property and an intersecting loop road to provide access to the
proposed lots.
Deschutes County Road Department requests that approval of the proposed subdivision
be subject to the following conditions:
Prior to construction of public road improvements:
• Applicant shall submit road improvement plans to Road Department for approval
prior to commencement of construction pursuant to DCC 17.40.020 and 17.48.060.
The roads shall be designed to the minimum standard for a local road within a
subdivision pursuant to 17.48.160 and 17.48A. Road improvement plans shall be
prepared in accordance with all applicable sections of DCC 17.48.
• Applicant shall submit final improvement plans with all required approval signatures
to Road Department.
Prior to final flat approval by Road Department:
• Applicant shall complete road improvements according to the approved plans and all
applicable sections of DCC 17.48. Improvements shall be constructed under the
inspection of a register professional engineer consistent with ORS 92.097 and DCC
17.40.040. Upon completion of road improvements, applicant shall provide a letter
from the engineer certifying that the improvements were constructed in accordance
with the approved plans and all applicable sections of DCC 17.48.
• Maintenance of all public roads within the subdivision shall be assigned to a home
owners association by covenant pursuant to DCC 17.16.040, 17.16.105, 17.48.160(A),
and 17.48.180(E). Applicant shall submit covenant to Road Department for review
247-19-000913-LL, 19-914-TP Page 5 of 67
and shall record covenant with the County Clerk upon Road Department approval. A
copy of the recorded covenant shall be submitted to the Community Development
Department prior to final plat approval. Further, the final plat signature sheet shall
include the following note: PUBLIC ROAD MAINTENANCE. THE OWNERS AND TENANTS
OF LOTS PLATTED BY THIS INSTRUMENT ARE HEREBY ASSIGNED TO MAINTAIN AND
REPAIR ALL PUBLIC ROADS CREATED BY THIS INSTRUMENT IN GOOD ORDER UNTIL
SUCH TIME AS A UNIT OF FEDERAL, STATE, OR LOCAL GOVERNMENT OR A SPECIAL
DISTRICT FORMALLYACCEPTS MAINTENANCE RESPONSIBILITY FOR SAID PUBLIC ROADS
ACCORDING TO APPLICABLE LAWS.
• All easements of record or existing rights of way shall be noted on the final plat
pursuant to DCC 17.24.060(E),(F), and (H).
• The surveyor preparing the plat shall, on behalf of Applicant, submit information
showing the location of the existing roads in relationship to the rights of way to
Deschutes County Road Department. This information can be submitted on a
worksheet and does not necessarily have to be on the final plat. All existing road
facilities and new road improvements are to be located within legally established or
dedicated rights of way. In no case shall a road improvement be located outside of a
dedicated road right of way. If research reveals that inadequate right of way exists or
that the existing roadway is outside of the legally established or dedicated right of
way, additional right of way will be dedicated as directed by Deschutes County Road
Department to meet the applicable requirements of DCC Title 17 or other County road
standards. This condition is pursuant to DCC 17.24.060(E),(F), and (G) and
17.24.070(E)(8).
• Applicant shall submit as -constructed improvement plans to Road Department
pursuant to DCC 17.24.070(E)(1).
• Applicant shall submit plat to Road Department for approval pursuant to DCC
17.24.060(R)(2), 100, 110, and 140.
Prior to issuance of any building permits:
• Applicant or their successors in interest for the subject property shall obtain driveway
access permits for all driveway accesses pursuant to DCC 12.28.050 and 17.48.210(A).
Bend Parks and Recreation District Sarah Bodo
Please accept the following comments from BPRD for this application:
• Since the property is within the urban area reserve zone, Deschutes County Code 17.44.030
will apply, requiring that the property annex to the Bend Park and Recreation District prior to
approval of the subdivision application.
• The property owner should be aware that a trail easement held by the state of Oregon for the
Deschutes River Trail exists on the property. BPRD would encourage the developer to provide
access to the trail for future residents.
Oregon Parks and Recreation Department, Bridget Tinsley
247-19-000913-LL, 19-914-TP Page 6 of 67
This email is a follow up to our phone call yesterday and it relates to the Smallwood property
adjacent to Tumalo SP's southern parcels.
Other than the existing Deschutes River Trail easement across the corner of the Smallwood
property, there are no other access easement requests anticipated in the near future on the
southern parcels of Tumalo State Park. The park manager and district supervisor confirmed this
information for me yesterday.
Bend Fire Department, Larry Medina
FIRE APPARATUS ACCESS ROADS:
Approved vehicle access for fire fighting shall be provided to all construction
or demolition sites. Vehicle access shall be provided to within 100 feet of
temporary or permanent fire department connections. Vehicle access shall be
provided by either temporary or permanent roads, capable of supporting vehicle
loading under all weather conditions. Vehicle access shall be maintained until
permanent access roads are available. 2014 OFC 3310.1
Approved fire apparatus access roads shall be provided for every facility, building or
portion of a building hereafter constructed or moved into or within the jurisdiction.
The fire apparatus access road shall comply with the requirements of this
section and shall extend to within 150 feet of all portions of the facility and all
portions of the exterior walls of the first story of the building as measured by
an approved route around the exterior of the building or facility. 2014 OFC 503.1.1
Fire apparatus roads shall have an unobstructed width of not less than 20
feet, exclusive of shoulders, except for approved securitygates in accordance with
Section 503.6, and an unobstructed vertical clearance of not less than 13 feet 6
inches. Where afire hydrant is located on afire apparatus road, the minimum
width shall be 26 feet, exclusive of shoulders. Traffic calming along afire apparatus
road shall be approved by the fire code official. Approved signs or other approved
notices or markings that include the words NO PARKING -FIRE LANE shall be provided
for fire apparatus roads to prohibit parking on both sides of fire lanes 20 to 26 feet
wide and on one side of fire lanes more than 26 feet to 32 feet wide. 2014 OFC
503.2.1, D103.1, 503.4.1, 503.3
Fire apparatus access roads shall be designed and maintained to support the
imposed loads of fire apparatus (60,000 pounds GVW) and shall be surfaced
(asphalt, concrete or other approved driving surface) as to provide all weather
driving capabilities. Inside and outside turning radius shall be approved by the fire
department. All dead-end turnarounds shall be of an approved design. Bridges and
elevated surfaces shall be constructed in accordance with AASHTO HB-17. The
maximum grade of fire apparatus access roads shall not exceed 10 percent. Fire
apparatus access road gates with electric gate operators shall be listed in
accordance with UL325. Gates intended for automatic operation shall be designed,
247-19-000913-LL, 19-914-TP Page 7 of 67
constructed and installed to comply with the requirements of ASTM F 2200. A Knox®
Key Switch shall be installed at all electronic gates. 2014 OFC D102.1, 503.2.4,
FIRE PROTECTION WATER SUPPLIES.
An approved water supply capable of supplying the required fire flow for fire
protection shall be provided to premises upon which facilities, buildings or
portions of buildings are hereafter constructed or moved into or within the
jurisdiction. Prior to application of Building Permits contact the Bend Fire
Marshal's office at 541-322-6308 to discuss an approved fire protection water
supply.
OTHER FIRE SERVICE FEATURES:
New and existing buildings shall have approved address numbers, building
numbers or approved building identification placed in a position that is plainly
legible and visible from the street or road fronting the property. These numbers
shall be Arabic numbers or alphabetical letters. Numbers shall be a minimum 4
inches high with a minimum stroke width of 0.5 inch. Where access is by means of a
private road and the building cannot be viewed from the public way, a monument,
pole, or other sign or means shall be used to identify the structure. Address
numbers shall be visible under low light conditions and evening hours. Provide
illumination to address numbers to provide visibility under all conditions. Address
signs are available through the Deschutes Rural Fire Protection District #2. An
address sign application can be obtained from the City of Bend Fire Department
website or by calling 541-388-6309 during normal business hours.
Oregon Department of State Lands (DSL), Grey Wolf
There are/may be wetlands, waterways or other water features on the property that are subject
to the State Removal -Fill Law based upon a review of wetland maps, the county soil survey and
other available information. The National Wetlands Inventory shows wetland, waterway or other
water features on the property. The property includes or is adjacent to a State Scenic Waterway.
A state permit will not be required for the proposed project because, based on the submitted site
plan, the project avoid impacts to jurisdictional wetlands, waterways, or other waters.
A state permit is required for 50 cubic yards or more of fill removal or other ground alteration in
wetlands, below ordinary high water of waterways, within other waters of the state, or below
highest measured tide. A state permit is required for any amount of fill or removal activity within
State Scenic Waterways.
Based on review of mapping or other documents submitted, it appears the project ('Tentative
plat for a subdivision.'9 will not impact jurisdictional wetlands, waterways or other waters of the
state.
247-19-000913-LL, 19-914-TP Page 8 of 67
Since future activity appears to fall within the buffer for a State Scenic Waterway (Deschutes
River), it is recommended that you contact Oregon Parks and Recreation Department prior to site
development.
This is a preliminaryjurisdictional determination and is advisory only. This report is for the State
Removal -Fill law only. City or County permits may be required for the proposed activity.
For information on permitting, use of a state-owned water, wetland determination or delineation
report requirements please contact the respective DSL Aquatic Resource, Proprietary or
jurisdiction Coordinator for the site county. The current list is found at:
http://www. oregon.gov/dsl/ww/pages/wwstaff. aspx
The current Removal -Fill permit and/or Wetland Delineation report fee schedule is found at:
https.11www.oregon.gov/dsl/WW/Documents/Removal-FillFees. pdf
Response Phone: 503-986-5321.
The following agencies did not respond: Deschutes County Assessor, Bend/La Pine School
District, Deschutes County Surveyor, Pacific Power and Light, Watermaster District 11, Bend
Cable Communications, Bend City Engineering, Bend Growth Management Department,
Bend Planning Department, Bend Public Works Department, Cascade Natural Gas
Company, Central Electric Co -Op, Central Oregon Irrigation District, the Army Corps of
Engineers, Centurylink, Deschutes County Property Address Coordinator, Oregon
Department of Fish and Wildlife, and Swalley Irrigation District.
REVIEW PERIOD: The applications for file nos. 247-19-000913-LL and 247-19-000914-TP
were submitted on December 30th, 2019. The applications were deemed incomplete and an
incomplete letter was sent on January 291h, 2020. The Applicant provided additional
information and the application was subsequently deemed complete on March 3rd, 2020.
On March 30th, the Applicant submitted a written request to extend the land use review
clock by 90 days.
Based on the written extension request, the new date the County must take final action on
this application on October 29th, 2020.
III. FINDINGS & CONCLUSIONS
A. Property Line Adjustment Application
Oregon Revised Statues Chapter 92, Subdivisions and Partitions
Section 92.192. Property line adjustment zoning ordinances: size of unit of land.
247-19-000913-LL, 19-914-TP Page 9 of 67
FINDING: The Applicant is requesting to move the common property lines between the subject
property (Tax Lot 501) and neighboring Tax Lots 601 and 503 respectively. The proposed
adjustment will add 0.05 acres of land from Tax Lot 601 to Tax Lot 501, and add 0.05 acres of land
from Tax Lot 503 to Tax Lot 501. The proposed adjustments will result in the following
configuration:
[Intentionally Left Blank]
247-19-000913-LL, 19-914-TP Page 10 of 67
Proposed Adjustment 1
TAXLOT 171207-502
N89'30 44 W 1319.24 N89'37 3t W 1084,81
TAROT
17120700-108
LEGAL PARCEL
8
TRACT 3
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247-18-311-LL
TAXLOT
Z t2
TAXLOT 171207-501
17120700-107
AREA BEFORE AOU57MENT-100.00 Acres
41
AREA AFTER ADJUSTMENT =f00.05 Acres
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diwosai spstarne, nor Water Rights on M Porcet.
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LEGAL PARCELTAXLOT t71207-601
TRACT 4 LL-18-311
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589'30'44"E 1320.90' 10 S89-30`09"E 1086.18-
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SCALE
LEGAL PARCEL
0 200 400 800
TRACT 4 LL-18-311
( FEE 7
247-19-000913-LL, 19-914-TP Page 11 of 67
Proposed Adjustment 2
TAXLOT 171207-502
N89'3W44-W 1319.24' N89.37'31"W 1084.81'
TAXLOT
17120700-108
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TAXLOT 171207-501
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AREA BEFORE AJUSTMENT=100.00 Acres
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AREA AFTER AOJUSINENT =100.05 Acres
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A property line adjustment is defined by ORS 92.010(12) and Deschutes County Code 17.08.030 as:
"A relocation or elimination of all or a portion of the common property line between
abutting properties that does not create an additional lot or parcel."
247-19-000913-LL, 19-914-TP Page 12 of 67
The Applicant proposes to relocate common property lines between three existing legal lots of
record. The purpose of the adjustment is to increase the size of the subject property to allow for
10 individual lots to be created pursuant to the subject subdivision application. The adjustment is
also subject to ORS 92.192(2). No new unit of land will be created.
(2) Except as provided in this section, a lawfully established unit of land that is reduced
in size by a property line adjustment approved by a city or county must comply with
applicable zoning ordinances after the adjustment.
FINDING: The subject property (Tax Lot 501) is a legal lot of record identified as Parcel 1 of Minor
Partition MP-80-70. The subject property was altered to its current configuration pursuant to a
prior property line adjustment (File No. 247-18-000311-LL).
Tax Lot 503 is part of a larger unit of land ("The Tract") that is +/- 176.12 acres in size identified on
Deschutes County Assessor's Map 17-12-07 as Tax Lot 503, and Assessor's Map 17-12-18 as Tax Lot
105. The Tract is recognized as one legal lot of record because it was platted as Parcel 1 of MJP-79-
8 and reconfigured by a series of property line adjustments (LL-06-118, LL-08-52, LL-08-73, LL-10-
35, LL-10-36, LL-10-45, 247-18-000005-LL, and 247-18-000311-LL).
Tax Lot 601 is recognized as one legal lot of record because it was platted as Parcel 2 of MP-80-70
and reconfigured via property line adjustment file no. 247-18-000005-LL.
All properties are zoned Urban Area Reserve (UAR10). All restrictions for this zone continue to
apply.
The property sizes before and after the adjustments are:
Tax Lot 501
Acreage before the adjustment: +/- 100.00 acres.
Acreage after the adjustment: +/- 100.10 acres
Tax Lot 503 (The Tract)
Acreage before the adjustment: +/- 176.10 acres3
Acreage after the adjustment: +/- 176.05 acres
Tax Lot 601
Acreage before the adjustment: +/- 24.90 acres
Acreage after the adjustment: +/- 24.85 acres
3 Staff noted that the size of this parcel was listed as 176.12 acres pursuant to land use decision 247-18-
000311-LL
4 Staff noted that the size of this parcel was listed as 24.88 acres pursuant to land use decision 247-18-
000005-LL
247-19-000913-LL, 19-914-TP Page 13 of 67
The Tract and Tax Lot 601 will be reduced in size by the proposed adjustments. After the
adjustment, Tax Lot 601 will be 24.85 acres and will comply with applicable zoning ordinances, as
the minimum lot size in the UAR10 Zone is 10 acres. In addition, The Tract will meet the minimum
lot size of the UAR10 Zone, with a resultant size of 176.05 acres.
Conclusion:
No new unit of land will be created. All properties are zoned UAR10. All restrictions for these zones
continue to apply.
The Hearings Officer finds the proposed property line adjustments meet the requirements as
established and can be tentatively approved. This tentative approval only confirms that the
proposed adjustment meets the current zoning criteria necessary for property line adjustments.
All restrictions for these zones still apply to the subject properties.
In order to obtain final approval:
1. Except as provided in ORS 92.060(7-9), the adjusted property lines shall be surveyed and
monumented by a registered professional land surveyor and a survey complying with ORS
209.250, shall be filed with the County Surveyor. A copy of the filed survey shall be
submitted to the Planning Division. Property line adjustments of properties each over
10 acres in size are not required to file a survey according to ORS 92.060(8).
2. New deeds, reflecting the new adjusted properties, shall be recorded with the Deschutes
County Clerk, and a copy of the recorded deeds shall be submitted to the Planning
Division. The adjustment deed shall contain the names of the parties, the description of
the adjusted line, references to original recorded documents and signatures of all parties
with proper acknowledgment.
A property line adjustment may have an effect on any completed septic site evaluations for
the properties involved. You may wish to check with the Environmental Soils Division
regarding this matter. A property line adjustment may also affect any water rights
appurtenant to your property. If you have a water right, you should contact your irrigation
district before the property line adjustment is surveyed.
B. Tentative Plan Application
SECTION 92.090. APPROVAL OF SUBDIVISION PLAT NAMES; REQUISITES FOR APPROVAL OF A
TENTATIVE SUBDIVISION OR PARTITION PLAN OR PLAT.
(1) Subdivision plat names shall be subject to the approval of the county surveyor or,
in the case where there is no county surveyor, the county assessor. No tentative
subdivision plan or subdivision plat of a subdivision shall be approved which bears
a name similar to or pronounced the same as the name of any other subdivision in
the some county, unless the land platted is contiguous to and platted by the same
247-19-000913-LL, 19-914-TP Page 14 of 67
party that platted the subdivision bearing that name or unless the party files and
records the consent of the party that platted the contiguous subdivision bearing
that name. All subdivision plats must continue the lot numbers and, if used, the
block numbers of the subdivision plat of the same name last filed. On or after
January 1, 1992, any subdivision submitted for final approval shall not use block
numbers or letters unless such subdivision is a continued phase of a previously
recorded subdivision, bearing the same name, that has previously used block
numbers or letters.
FINDING: As noted in the Burden of Proof Statement (pg. 4), the Applicant anticipates a condition
of approval that the subdivision name will be approved by the County Surveyor. Staff also
recommended a similar condition of approval. The Hearings Officer therefore adopts the following
condition of approval.
Subdivision Name: Prior to final plat approval, the subdivision plat name shall be approved by
the County Surveyor.
(2) No tentative plan for a proposed subdivision and no tentative plan for a proposed
partition shall be approved unless:
(a) The streets and roads are laid out so as to conform to the plats of
subdivisions and partitions already approved for adjoining property as to
width, general direction and in all other aspects unless the city or county
determines it is in the public interest to modify the street or road pattern.
FINDING: Only one platted road abuts the proposed subdivision; Pacific Heights Road as platted
within the Pacific Cascade Heights subdivision. The proposed tentative plan shows that the new
road will conform to the approved subdivision plat for Pacific Cascade Heights subdivision.
(b) Streets and roads held for private use are clearly indicated on the tentative
plan and all reservations or restrictions relating to such private roads and
streets are set forth thereon.
FINDING: The proposed roadway will be a dedicated public right-of-way. This criterion does not
apply.
(c) The tentative plan complies with the applicable zoning ordinances and
regulations and the ordinances and regulations adopted under ORS 92.044
that are then in effect for the city or county within which the land described
in the plan is situated.
FINDING: This decision identifies applicable zoning ordinances and evaluates compliance with
those ordinances. As noted herein, the tentative plan complies with the applicable zoning
ordinances and regulations and the ordinances and regulations adopted under ORS 92.044.
(3) No plat of a proposed subdivision or partition shall be approved unless:
247-19-000913-LL, 19-914-TP Page 15 of 67
(a) Streets and roads for public use are dedicated without any reservation or
restriction other than reversionary rights upon vacation of any such street
or road and easements for public or private utilities.
(b) Streets and roads held for private use and indicated on the tentative plan
of such subdivision or partition have been approved by the city or county.
(c) The subdivision or partition plat complies with any applicable zoning
ordinances and regulations and any ordinance or regulation adopted under
ORS 92.044 that are then in effect for the city or county within which the
land described in the subdivision or partition plat is situated.
(d) The subdivision or partition plat is in substantial conformity with the
provisions of the tentative plan for the subdivision or partition, as approved.
(e) The subdivision or partition plat contains a donation to the public of all
sewage disposal and water supply systems, the donation of which was made
a condition of the approval of the tentative plan for the subdivision or
partition plat.
(f) Explanations for all common improvements required as conditions of
approval of the tentative plan of the subdivision or partition have been
recorded and referenced on the subdivision or partition plat.
FINDING: The Hearings Officer finds that subsections (b) and (e) do not apply to this application.
Subsection (c) is addressed above under another criterion containing the same language.
The Hearings Officer finds this criterion can be met with the following conditions of approval.
Road Dedication: Prior to final plat approval, roads for public use shall be dedicated without any
reservation or restriction other than reversionary rights upon vacation of any such street or road
and easements for public or private utilities.
Conformity to Tentative Plan: Prior to final plat approval, the subdivision final plat shall be in
substantial conformity with the provisions of the tentative plan for the subdivision, as approved.
Explanations: Prior to final plat approval, explanations for any common improvements required
as conditions of approval of the tentative plan of the subdivision shall be recorded and referenced
on the subdivision plat.
(4) Subject to any standards and procedures adopted pursuant to ORS 92.044, no plat
of a subdivision shall be approved by a city or county unless the city or county has
received and accepted.
(a) A certification by a city -owned domestic water supply system or by the
owner of a privately owned domestic water supply system, subject to
regulation by the Public Utility Commission of Oregon, that water will be
available to the lot line of each and every lot depicted in the proposed
subdivision plat,
(b) A bond, irrevocable letter of credit, contract or other assurance by the
subdivider to the city or county that a domestic water supply system will be
247-19-000913-LL, 19-914-TP Page 16 of 67
installed by or on behalf of the subdivider to the lot line of each and every
lot depicted in the proposed subdivision plat, and the amount of any such
bond, irrevocable letter of credit, contract or other assurance by the
subdivider shall be determined by a registered professional engineer,
subject to any change in such amount as determined necessary by the city
or county, or
(c) In lieu of paragraphs (a) and (b) of this subsection, a statement that no
domestic water supply facility will be provided to the purchaser of any lot
depicted in the proposed subdivision plat, even though a domestic water
supply source may exist. A copy of any such statement, signed by the
subdivider and endorsed by the city or county, shall be filed by the
subdivider with the Real Estate Commissioner and shall be included by the
commissioner in any public report made for the subdivision under ORS
92.385 (Examination). If the making of a public report has been waived or
the subdivision is otherwise exempt under the Oregon Subdivision Control
Law, the subdivider shall deliver a copy of the statement to each prospective
purchaser of a lot in the subdivision at or prior to the signing by the
purchaser of the first written agreement for the sale of the lot. The
subdivider shall take a signed receipt from the purchaser upon delivery of
such a statement, shall immediately send a copy of the receipt to the
commissioner and shall keep any such receipt on file in this state, subject
to inspection by the commissioner, for a period of three years after the date
the receipt is taken.
FINDING: The Applicant proposes individual wells to each property for water supply, therefore,
subsection (c) applies. The Hearings Officer includes the following condition of approval to ensure
compliance with the above criterion:
Domestic Water Supply Statement: Prior to final plat approval, the Applicant shall provide
Deschutes County with a statement that no domestic water supply facility will be provided to the
purchaser of any lot depicted in the proposed subdivision plat, even though a domestic water
supply source may exist. A copy of any such statement, signed by the subdivider and endorsed by
the city or county, shall be filed by the subdivider with the Real Estate Commissioner and shall be
included by the commissioner in any public report made for the subdivision under ORS 92.385
(Examination). If the making of a public report has been waived or the subdivision is otherwise
exempt under the Oregon Subdivision Control Law, the subdivider shall deliver a copy of the
statement to each prospective purchaser of a lot in the subdivision at or prior to the signing by the
purchaser of the first written agreement for the sale of the lot. The subdivider shall take a signed
receipt from the purchaser upon delivery of such a statement, shall immediately send a copy of
the receipt to the commissioner and shall keep any such receipt on file in this state, subject to
inspection by the commissioner, for a period of three years after the date the receipt is taken.
(5) Subject to any standards and procedures adopted pursuant to ORS 92.044, no plat
of a subdivision shall be approved by a city or county unless the city or county has
received and accepted.
247-19-000913-LL, 19-914-TP Page 17 of 67
(a) A certification by a city -owned sewage disposal system or by the owner of a
privately owned sewage disposal system that is subject to regulation by the
Public Utility Commission of Oregon that a sewage disposal system will be
available to the lot line of each and every lot depicted in the proposed
subdivision plat,
(b) A bond, irrevocable letter of credit, contract or other assurance by the
subdivider to the city or county that a sewage disposal system will be
installed by or on behalf of the subdivider to the lot line of each and every
lot depicted on the proposed subdivision plat, and the amount of such bond,
irrevocable letter of credit, contract or other assurance shall be determined
by a registered professional engineer, subject to any change in such amount
as the city or county considers necessary, or
(c) In lieu of paragraphs (a) and (b) of this subsection, a statement that no
sewage disposal facility will be provided to the purchaser of any lot depicted
in the proposed subdivision plat, where the Department of Environmental
Quality has approved the proposed method or an alternative method of
sewage disposal for the subdivision in its evaluation report described in ORS
454.755 (Fees for certain reports on sewage disposal) (1)(b). A copy of any
such statement, signed by the subdivider and indorsed by the city or county
shall be filed by the subdivider with the Real Estate Commissioner and shall
be included by the commissioner in the public report made for the
subdivision under ORS 92.385 (Examination). If the making of a public report
has been waived or the subdivision is otherwise exempt under the Oregon
Subdivision Control Law, the subdividershall deliver a copy of the statement
to each prospective purchaser of a lot in the subdivision at or prior to the
signing by the purchaser of the first written agreement for the sale of the
lot. The subdivider shall take a signed receipt from the purchaser upon
delivery of such a statement, shall immediately send a copy of the receipt
to the commissioner and shall keep any such receipt on file in this state,
subject to inspection by the commissioner, for a period of three years after
the date the receipt is taken.
FINDING: The Applicant proposes private on -site subsurface sewage disposal systems and that the
proposed lots will not be supplied by a city -owned or privately -owned sewage disposal system,
therefore, subsection (c) applies. The following condition of approval is adopted by the Hearings
Officer to ensure this criterion is met:
Sewage Disposal Statement: Prior to final plat approval, a statement that no sewage disposal
facility will be provided to the purchaser of any lot depicted in the proposed subdivision plat, where
the Department of Environmental Quality has approved the proposed method or an alternative
method of sewage disposal for the subdivision in its evaluation report described in ORS 454.755
(Fees for certain reports on sewage disposal) (1)(b). A copy of any such statement, signed by the
subdivider and indorsed by the city or county shall be filed by the subdivider with the Real Estate
Commissioner and shall be included by the commissioner in the public report made for the
subdivision under ORS 92.385 (Examination). If the making of a public report has been waived or
247-19-000913-LL, 19-914-TP Page 18 of 67
the subdivision is otherwise exempt under the Oregon Subdivision Control Law, the subdivider
shall comply with the applicable provisions of ORS 92.090(5)(c).
(6) Subject to any standards and procedures adopted pursuant to ORS 92.044, no plat
of subdivision or partition located within the boundaries of an irrigation district,
drainage district, water control district, water improvement district or district
improvement company shall be approved by a city or county unless the city or
county has received and accepted a certification from the district or company that
the subdivision or partition is either entirely excluded from the district or company
or is included within the district or company for purposes of receiving services and
subjecting the subdivision or partition to the fees and other charges of the district
or company.
FINDING: This criterion is applicable because the record indicates the subject property is located
partially within the Swalley Irrigation District. The following condition of approval is adopted to
ensure compliance with the above criterion.
Irrigation Certification: Prior to final plat approval, the Applicant shall submit to the county a
certification from the district or company that the subdivision or partition is either entirely
excluded from the district or company or is included within the district or company for purposes
of receiving services and subjecting the subdivision or partition to the fees and other charges of
the district or company.
TITLE 17 OF THE DESCHUTES COUNTY CODE, SUBDIVISIONS
Chapter 17.12, Administration and Enforcement
Section 17 12 080 Statement of Water Rights.
All applicants for a subdivision or partition shall be informed by the Planning Director or
his designee of the requirement to include a statement of water rights on the final plat.
FINDING: The Hearings Officer includes the above criterion to inform the Applicant of the
requirement to include statement of water rights on the final plat.
Section 17 12 100 Sale of Subdivision Lots Prohibited Before Final Approval.
No person shall sell any lot in any subdivision until final approval of the land division has
been granted by the County. Final approval occurs when the plat of the subdivision or
partition is recorded with the County Clerk. No person shall negotiate to sell any lot in a
subdivision until a tentative plan has been approved.
FINDING: The Hearings Officer includes this criterion to inform the Applicant of these
requirements.
247-19-000913-LL, 19-914-TP Page 19 of 67
Chapter 17.16, Approval of Subdivision Tentative Plans.
Section 17.16.040. Protective Covenants and Homeowner Association Agreements.
Landowner covenants, conditions, and restrictions and homeowner association
agreements are not relevant to approval of subdivisions and partitions under DCC Title 17,
unless otherwise determined by the County to carry out certain conditions of approval,
such as road maintenance or open space preservation. Any provisions in such agreements
not in conformance with the provisions of DCC Title 17 or applicable zoning ordinances are
void.
FINDING: As noted below, there is an issue regarding a road maintenance maintenance covenant.
It is discussed in detail under DCC 17.16.105. This DCC 17.16.040 appears to be a statement
regarding the relevance of covenants, conditions, and restrictions in regard to the County's review
of subdivision applications.
Section 17.16.100. Required Findings for Approval.
A tentative plan for a proposed subdivision shall not be approved unless the Planning
Director or Hearings Body finds that the subdivision as proposed or modified would meet
the requirements of this title and Titles 18 through 21 of this code and is in compliance
with the comprehensive plan. Such findings shall include, but not be limited to, the
following.
A. The subdivision contributes to the 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.
FINDING: Compliance with Titles 17, 18, and 19 of the Deschutes County Code is addressed in
findings in this decision. The requirements of the Comprehensive Plan are codified within the Titles
identified above. Because no change to the Comprehensive Plan is sought by this application,
conformance with Titles 17, 18, and 19 establishes conformance with the Comprehensive Plan.
Contribution to Orderly Development.
In response to this criterion as it relates to orderly development, the Applicant stated:
Property to the north is zoned EFU-TRB and owned by Oregon Parks & Recreation
Department. Some of the property to the west is zoned UAR and is undeveloped.
Some of the property to the west is zoned EFU-TRB and is also owned by Oregon
Parks & Recreation Department. The properties to the east are zoned UAR and are
part of the Pacific Cascade Heights subdivision. The properties to the south are zoned
UAR and are undeveloped. The proposed lot sizes are consistent with the current
rural development pattern within the UAR10 zone. The subdivision includes a public
road and proposed electrical power consistent with County standards and policies,
247-19-000913-LL, 19-914-TP Page 20 of 67
and which contributes to orderly development in the area by providing the
appropriate framework for transportation systems and utility systems connectivity
through the subject property and to the adjacent properties.
The Applicant further stated in its July 71h, 2020, submittal:
The Applicant also notes that the subdivision will contribute to the orderly
development and land use patterns in the area. Given its UAR designation and
proximity to the City, the site is a natural transition from the more urban
development in the City and the more rural nature of the County. The proposed low
density development is exactly the type that is envisioned by the UAR zone. The
extension of Pacific Heights Road will allow further development provide additional
connectivity in the area. The extension of power to the site will also allow further
development in the area in the future. In addition, developing this site to the west of
the Existing Pacific Cascade Heights subdivision is a natural progression of
development in the area just outside the City of Bend.
While there were some general comments regarding the 'orderly development" of the area made
in opposition to the application, the bulk of public comments related to this criterion do not
address orderly development, but instead address the natural features component. Accordingly,
those comments are addressed below.
The Hearings Officer finds that the proposal contributes to the orderly development and land use
patterns of the area for the reasons stated by the Applicant and quoted above.
Preservation otNatural Resources and Features
Upon review of the submitted tentative plan and the presence of significant natural features onsite
(the Deschutes River and associated canyon), staff sent the following request in the incomplete
I ette r:
Staff notes that both the Deschutes River and the associated river canyon which abut the
western boundary of the subject property constitute "natural features and resources" which
should be provided preservation. Additionally, staff notes that at least six (6) of the
proposed subdivision parcels will include significant portions of these natural features. The
submitted application materials, including the tentative plan, do not provide information
which addresses how the proposed subdivision will provide for the preservation of these
natural features and resources. Please provide supplementary information which describes
steps that will be taken by the Applicant to provide for the preservation of the Deschutes
River, the Deschutes River canyon, and special terrain features such as rimrock areas.
The Applicant subsequently provided the following response to the request above in the
incomplete response materials:
247-19-000913-LL, 19-914-TP Page 21 of 67
Staff has noted that the Deschutes River and the river canyon abut the western boundary
of the property and constitute "natural features and resources". Staff has asked about the
protection measures proposed by the Applicant to protect these resources along with the
rimrock areas on several of the proposed lots.
The Applicant proposes to record a deed restriction (which may be a part of the Declaration
of Covenants, Conditions and Restrictions for the new Juniper Rim Subdivision) that includes
the following provisions:
1. No permanent improvements may be installed on the property below the canyon rim;
2. No utilities on the property may be installed below the canyon rim;
3. No fill, alterations or course changes may be made to the Deschutes River on the
property;
4. All improvements within 100 feet of the canyon rim shall be of color tones that occur in
nature and in local surroundings;
5. All development, including at -grade terraces, shall be set back a minimum of 20 feet
from the edge of the canyon rim;
6. Trees at the edge of the canyon rim or over the rim into the canyon may not be removed
unless they are dead or diseased and posing a risk of personal injury or property
damage;
7. Exterior lighting will be down light or directed specifically toward objects.
8. The foregoing provisions may not be altered or revoked without the prior written
approval of the director of current planning for Deschutes County.
9. The design guidelines to be adopted pursuant to the Juniper Rim Subdivision Owners'
Association will provide that homes will be grounded to the site with their massing and
forms. Low profile structures and roof lines are encouraged. Massing should aim for a
mountain form; if the home is two stories, the second floor should occur in the middle
of the overall massing, and overall heights should be minimized. The guidelines will
further provide that garages, accessory buildings, and utility services should be screened
from primary canyon views as reasonably practical. Outbuildings will be designed with
the same quality and care as the primary residence and with similar material qualities.
Native rock outcroppings will be preserved as much as reasonably practical within home
designs. Rock outcroppings may be expanded within designs with native lichen covered
rock to tie in new developments to natural site features. Native trees (primarily junipers
with some Ponderosa Pines) will be carefully evaluated within each homesite's
development area. Larger select trees with "character shapes" will be preserved within
home designs as much as reasonably practical. Ghost trees, snags or fallen trees are
encouraged to remain as wildlife habitat or as sculptural landscape elements. Tree
preservation techniques will be utilized during construction to avoid damaging the
remaining trees. This would include maintaining a minimum 10' clearance away from
trunks and drip lines for excavation, clean cutting any roots during excavation
operations and hand digging at times near roots or under drip lines. Trees and drip lines
will be protected with fencing to avoid compaction around tree bases. All sites will be
surveyed by a licensed surveyor prior to design work to help identify these crucial
features. Open space between home sites will be largely preserved in natural states.
247-19-000913-LL, 19-914-TP Page 22 of 67
Efforts will be made to limit construction impacts - fencing will be used to contain the
perimeters of development to limited areas - so native surrounding areas do not get
damaged or compacted with vehicular traffic. Owners will be encouraged to foster a
sense of stewardship for the site - both for the natural values of the site and with their
design and construction efforts.
Prior to or after the public hearing comments were received into the record that reference this
criterion. Scott Dahlen stated that the above proposed deed restrictions as written do not provide
any meaningful protection of the river canyon or the river itself. He believes as written the deed
restrictions would allow picnic tables or gazebos so long as they are temporary. Mr. Dahlen also
expressed concern that the deed restrictions will allow for the clearing of all vegetation below the
rim.
The Applicant responds to Mr. Dahlen's comments by noting that the deed restrictions specifically
prohibit the removal of trees below the canyon rim unless they are dead or diseased and pose a
risk of personal injury or property damage. The Hearings Officer interprets this to mean dead and
diseased trees will only be removed when they pose a risk to person or property. The Hearings
Officer notes that this proposed deed restriction (#6) does not include vegetation. The Applicant
concedes this and notes that they do not object to expanding the restriction to include both trees
and vegetation. The Hearings Officer believes expanding the restriction to include vegetation will
further protect the river canyon as a natural feature. Thus, the proposed deed restriction #6 should
apply to both trees and vegetation.
Regarding Mr. Dahlen's concern about temporary uses, such as picnic tables, the Hearings Officer
notes that OPRD submitted a comment that states all structures and improvements (regardless of
permanence) are subject to a 20-foot setback form the rimrock. The Applicant has noted they do
not object to including in the deed restrictions a note about development being subject to State
Scenic Waterway Rules. Moreover, the deed restrictions prohibit development within 20 feet of the
canyon rim (the definition of which is addressed below). The Hearings Officer, though, is not aware
of any regulation that would prohibit items that are not considered improvements or structures
that are temporarily placed on private property near the river or in the canyon, such a temporary
table. Nor is such a regulation cited by Mr. Dahlen.
Next, Sanders and Danielle Nye, through their attorney, submitted comments relating to this
criterion. The Nyes ask that the Applicant be required to identify and inventory significant natural
features and terrain prior to the approval of the tentative plan. Specifically, the Nyes contend that
the rock outcroppings, rimrock, and big trees that are lining, facing, or visible from the Deschutes
River Canyon should be considered "significant" enough to be inventoried.
The Applicant responded to these comments in their July 7t" and July 21" submittals. In summary,
the Applicants responded by stating:
• The rimrock is mapped and shown on the tentative plan by the contour lines, from which
can be depicted the area that exceeds 45 degrees in slop meeting the definition of rimrock
in Title 18. The canyon, according to the Applicant is everything west (generally) of that line.
247-19-000913-LL, 19-914-TP Page 23 of 67
• The Applicant agrees to a condition requiring on -site confirmation with the County staff of
the location of the rim on each lot before constructing homes.
• The Applicant agrees to not remove trees or vegetation below the rim.
• The Applicant agrees to allow no fill, alterations, or course changes to the river.
• The Applicant agrees to a setback from the rim edge.
• The Applicant notes that, as shown on tentative plan, the area to be preserved "is going to
be more that 200 feet back from and more that 200 feet above the river".
• To protect wildlife the deed restrictions will include a prohibition on perimeter fencing.
• Each home will be subject to OPRD approval and the Applicant has no objection to a deed
restriction to include a specific acknowledgment of the OPRD program and requirement to
comply therewith.
• There is no requirement that identify and inventory natural features and terrain on site.
According to the Applicant, the key natural features on the site are the river, the rimrock,
and vegetation in and on the canyon.
The Hearings Officer agrees with the Applicant that there is not a requirement in DCC 17.16.100(A)
to inventory the natural features and resources on the subject property. So while the Hearings
Officer agrees with the Nyes that an inventory would be helpful, it is not a requirement in the Code.
That said, some identification of the natural features and resources is required to ensure
preservation. The language in the code implies that the natural features and resources to be
preserved are relatively significant features, such as water bodies and terrain features. This is
confirmed in Broken Top Community Assoc. v. Deschutes County, 54 Or LUBA 84 (2007), where LUBA
noted that natural features to be considered under DCC 17.16.100(A) must be relatively significant
natural features; not individual trees or minor topographic features.
Such significant features were identified by the Applicant in its application, hearings testimony, and
subsequent submittals. According to the Applicant, such on -site features include the river, canyon
rim, and vegetation in the canyon. Similarly, the Oregon Parks and Recreation Department is
primarily concerned with the rimrock and the vegetation between the canyon and development
(so that vegetation in the canyon and on or near the rimrock). Email from Laurel Hillman, July 7t",
2020. Moreover, the features identified by the Applicant do not vary significantly from what the
Nyes identify in the July 14t" letter, identifying the rock outcroppings, rimrock, and big trees that
line, face or are visible from the Deschutes River canyon.
In light of the above, the Hearings Officerfinds the natural resources and features to be to reviewed
for preservation are the river, rimrock and canyon, and trees and vegetation.
One point of uncertainty is what constitutes rimrock. The Applicant contends we should adopt the
definition of "rimrock" included in Title 18 of the Deschutes County Code. Cooper Ltr, July 7t", 2020.
Title 18 defines "rimrock" as:
"Rimrock" means any ledge, outcropping or top or overlying stratum of rock, which forms a
face in excess of 45 degrees, and which creates or is within the canyon of the following rivers
247-19-000913-LL, 19-914-TP Page 24 of 67
and streams (1) Deschutes River ... For the purpose of DCC Title 18, the edge of the rimrock
is the uppermost rock ledge or outcrop of rock.
Thus, the Applicant contends that the rimrock:
"is where the contour lines (denoting elevation) start to be located very close together (as
noted on the tentative plan, the tentative plan depicts two -foot interval elevations lines;
where such lines are located less than two feet part horizontally, the ground surface is in
excess of 45 degrees in slope, meeting the definition of rimrock per Title 18) and the map
appears to darken; it's an easy line to see when looking at tentative plan from right to left.
The line is generally to the west (and north, in the case of proposed Lot 4). The canyon is
everything west of that line. Pursuant to the Applicant's proposal, the canyon and the
vegetation in the canyon will be protected."
With that description of the rimrock, and upon review of the tentative plan, the Hearings Officer
believes the canyon rim/rimrock is adequately identified. A line can be drawn along a mostly
north/south course (except towards the northern end of the subject property where proposed Lot
4 is located) where the canyon rim suddenly drops. This clearly demarcates the location of the
canyon rim/rimrock for the sake of preservation. It also defines the area in which trees and
vegetation need to be preserved. The river itself is clearly identified on the tentative plan, only
crossing onto the property in the northwest corner.
Moreover, the Hearings Officer believes the natural resources and features can be preserved, as
required by this criterion, by adopting the above listed deed restrictions with a couple of
modifications and additions as follows:
• Deed Restriction #5 to note that there is a minimum 20 foot setback from the rimrock for
all structures and improvements (regardless of permanence) in compliance with OAR 736-
040-0072.
• Deed Restriction #6 to include both preservation of trees and vegetation.
• Additional restriction to include requirement that no perimeter fencing be permitted to
protect wildlife (temporary fencing during construction in the immediate vicinity of
development to contain and limit impact are permitted).
• An acknowledgement that development is subject to OAR 736-040-0072, OAR 736-040-0035,
and OAR 736-040-0040(1)(c)(B).
• For those lots subject to review under the above referenced OARs, a reference to the
requirement that they submit individual NOls for development or modification of the
landscape for each individual property.
The deed restrictions, with these modifications, preserve the canyon from development, protect
trees and vegetation in the canyon and protects the rimrock with the setback. Accordingly, the
natural features and resources are preserved.
Lastly, the Hearings Officer finds that the County should have enforcement authority over the deed
restrictions, as suggested by the Applicant in its July 7t" submittal. Without such authority, it is
247-19-000913-LL, 19-914-TP Page 25 of 67
possible that future owners, who would typically have that authority, may elect not to enforce the
provisions against themselves or their neighbors. To ensure compliance, the County should have
the ability to enforce the deed restrictions to ensure the preservation of the natural features and
resources described herein.
The Hearings Officer finds that DCC 17.16.100(A) can be met by the Applicant with the adoption of
the following condition of approval:
Deed Restrictions: Prior to selling any lots, the Applicant shall record deed restrictions in
substantially the same form as outlined above and subject to the modification and amendments
required by the Hearings Officer, including the County's ability to enforce the deed restrictions.
B. The subdivision would not create excessive demand on public facilities, services
and utilities required to serve the development.
FINDING: In response to this criterion, the Applicant stated:
As previously noted, the property will have on -site waste disposal systems and lot
owners will use private wells as a water source. The Applicant is speaking with
PacifiCorp to provide power to the subdivision. The Applicant proposes as a condition
of approval that it obtain a will serve letter from PacifiCorp, indicating an ability to
provide such service to the proposed subdivision.
The submitted Site Traffic Report Analysis, prepared by Joe Bessman of Transight
Consulting, LLC, confirms that the affected public transportation system will not be
overburdened, nor materially affected by the proposed project, and its relatively
minor traffic impacts.
The subject land is currently included within the Bend Rural Fire Protection District #2
for fire protection and emergency services. The proposed development with
improved roads, utilities, and access, is likely to reduce any fire threats or concerns
as compared to the current natural setting, and will improve emergency services
access.
The Applicant subsequently provided a will -serve letter from Pacific Power dated December 31,
2019, that it is willing and able to provide electrical service to the proposed development.
The Fire Department and Road Department made recommendations regarding this criterion. No
other infrastructure, public facilities, service or utilities deficiencies have been identified in the
record.
With the adoption of the Fire Department's and Road Department's recommendations as
conditions of approval, the Hearings Officer finds this criterion can be met.
247-19-000913-LL, 19-914-TP Page 26 of 67
C. The tentative plan for the proposed subdivision meets the requirements of Oregon
Revised Statutes Section 92.090.
FINDING: The relevant provisions of ORS 92.090 and the proposal's compliance with those
provisions are addressed in the findings above. The application meets the requirements of ORS
92.090.
D. For subdivision or portions thereof proposed within a Surface Mining Impact Area
(SMIA) zone under DCC Title 18, the subdivision creates lots on which noise or dust
sensitive uses can be sited consistent with the requirements of DCC 18.56, as
amended, as demonstrated by the site plan and accompanying information
required under DCC 17.16.030.
FINDING: The subject property is not within a Surface Mining Impact Area Zone. Staff noted that a
minor portion of the Surface Mining Impact Area (SMIA) Combining Zone does appear to fall within
the subject property. However, after discussion with the Deschutes County Systems Analyst, staff
stated that this minor portion of the SMIA Zone on the subject property is the result of a mapping
error, rather than an accurate reflection of SMIA zoning provisions applicable to the subject
property. No party disputed this statement.
This criterion does not apply.
E. The subdivision name has been approved by the County Surveyor
FINDING: This requirement has already been added as a recommended condition of approval
under ORS 92.090(1) above.
Section 17.16.105. Access to Subdivisions.
No proposed subdivision shall be approved unless it would be accessed by roads
constructed to County standards and by roads under one of the following conditions:
A. Public roads with maintenance responsibility accepted by a unit of local or state
government or assigned to landowners or homeowners association by covenant or
agreement, or
B. Private roads, as permitted by DCC Title 18, with maintenance responsibility
assigned to landowners or homeowners associations by covenant or agreement
pursuant to ORS 105; or
C. This standard is met if the subdivision would have direct access to an improved
collector or arterial or in cases where the subdivision has no direct access to such
a collector or arterial, by demonstrating that the road accessing the subdivision
from a collector or arterial meets relevant County standards that maintenance
responsibility for the roads has been assigned as required by this section.
FINDING: The Applicant has responded to this criterion as follows.
247-19-000913-LL, 19-914-TP Page 27 of 67
The subdivision will have access to O.B. Riley Road, a County Road (rural collector
classification), via Pacific Heights Road, a publicly -dedicated road that has been
accepted by the County. The Applicant proposes to form a homeowners association
that will be responsible for maintenance of Juniper Rim Loop.
The Road Department requests that all public roads within the subdivision be assigned to a
homeowners association by covenant pursuant to DCC 17.16.040, 17.16.105, 17.48.160(A) and
17.48.180(E). As part of that condition of approval, the Road Department also asked that the final
plat include the following note:
PUBLIC ROAD MAINTENANCE: THE OWNERS AND TENANTS OF LOTS PLATTED BY
THIS INSTRUMENT ARE HEREBY ASSIGNED TO MAINTAIN AND REPAIR ALL PUBLIC
ROADS CREATED BY THIS INSTRUMENT IN GOOD ORDER UNTIL SUCH TIME AS A
UNIT OF FEDERAL, STATE, OR LOCAL GOVERNMENT OR A SPECIAL ROAD DISTRICT
FORMALLY ACCEPTS MAINTENANCE RESPONSIBILITY FOR SAID PUBLIC ROADS
ACCORDING TO APPLICABLE LAWS.
As noted above, the neighboring homeowners association submitted the following comment
regarding ongoing maintenance of the already constructed Pacific Heights Road located in the
Pacific Cascade Heights subdivision:
The recently completed Pacific Cascade Heights Development sits immediately to the east
of the Smallwood subdivision. The Smallwood subdivision application identifies road access
to the new subdivision via Pacific Heights Road. As identified on the enclosed Road
Maintenance Covenant for Pacific Cascade Heights, the property owners of Pacific Cascade
Heights are solely responsible for the repair and maintenance of the roads within Pacific
Cascade Heights including both Pacific Heights Road and Northern Estates Drive.
The application for File No. 247-19-000913-LL, 19-914-TP does not include a road
maintenance agreement or covenant for their use of Pacific Heights Road. Based on the
terms of the Pacific Cascade Heights Road Maintenance Covenant, Section 4, if either of the
Roads in Pacific Cascade Heights are used to gain access to real estate that is not part of the
Pacific Cascade Heights property and that access does not included a satisfactory road
maintenance agreement or covenant then we can terminate the Pacific Cascade Heights
road maintenance covenant.
Pacific Cascade Heights requests that Deschutes County either accept all the road
maintenance and repair of Pacific Heights Road upon acceptance of application 247-19-
000913-LL, 19-914-TP, or stipulate approval of application 247-19-000913-LL, 19-914-TP
shall be based on a mutually agreeable road maintenance agreement or covenant between
Pacific Cascade Heights and the Smallwood subdivision
In response, the Applicant initially noted that it had agreed in principal with the Pacific Cascades
Heights owners association to sign a maintenance agreement to pay proportionate share of the
costs of maintain the existing portion of Pacific Heights Road. Prior to the record closing, the
247-19-000913-LL, 19-914-TP Page 28 of 67
Applicant noted that no agreement had been signed. Instead, the Applicant submitted into the
record on July 7t" a "Road Maintenance Covenant. The covenant requires, amongst other things,
that the new road in the proposed subdivision be constructed to Deschutes County Road standards
and all applicable legal requirements. It also requires that the owners of lots in the proposed
subdivision will improve, repair, and maintain the road in good condition and repair to applicable
Deschutes County Road Standards. Also of note, is the "Termination" provision which states:
Termination: This Covenant may not be terminated unless and until either: (a) either
the Deschutes County Road Department consents to such termination; or (b)
Deschutes County accepts maintenance obligations with respect to the [r]oad.
The Elkins Family Revocable Trust (the "Elkins"), who the property south of the proposed
subdivision, through their attorney, objected to the Applicant recording a covenant similar to the
on one recorded for Pacific Cascade Heights subdivision (allowing them to terminate the covenant
if down road property owners began used Pacific Heights Road). The Elkins subsequently noted,
though, that they agreed with the Applicant's Road Maintenance Covenant subject to some
changes. The Elkins suggested following language regarding termination:
Termination: This Covenant may not be terminated unless and until Deschutes
County or another unit of federal, state or local government or special district
formally accepts maintenance responsibility with respect to the Road according to
applicable laws.
The Elkins' attorney contends that there is no authority in the Code to allow for the Road
Department to consent to termination of the maintenance obligation.
In light of the above comments, the Hearings Officer believes there are two issues for him to decide.
First, whether or not the tentative plan decision should include a condition of approval requiring
the parties, including the Applicant and the Pacific Cascade Heights homeowners association, to
enter a maintenance agreement for the portion of Pacific Heights Road located in the Pacific
Cascade Heights subdivision. And second, if the answer to the first question is "no", whether or not
the Elkins requested revisions to the proposed maintenance covenant are necessary.
In response to the first issue, the Hearings Officer notes that the Pacific Cascade Heights
homeowners association did not cite any code provision that would require a joint maintenance
agreement in this case. Moreover, the Hearings Officer is unaware of any such requirement in the
Code. Instead, the code, including this provision, focuses on ensuring access via a public road that
currently exists and that the new road to be constructed within the subdivision be built and
maintained to county standards. The Hearings Officer will not condition approval of the tentative
plan on Pacific Cascade Heights homeowners association and the Applicant making an agreement
regarding the maintenance of Pacific Heights Road.
The consequence of not requiring a joint maintenance agreement is that the Pacific Cascade
Heights homeowners association may elect to void their current maintenance agreement. It is
unclear why the termination provision in the Pacific Cascade Heights maintenance agreement was
247-19-000913-LL, 19-914-TP Page 29 of 67
allowed to be recorded in its current form. Perhaps it was an oversight by the County. If the
homeowners association elects to void the maintenance covenant, that section of Pacific Heights
Road running through the Pacific Cascade Heights subdivision may go without maintenance. That
would be to the detriment of the Pacific Cascade Heights owners as well as the downstream
property owners who rely on that road for access. Thus, reaching a mutually agreeable
maintenance agreement between the users of the road seems beneficial to all. However, the
Hearings Officer is not aware of any code provision that authorizes him to require the parties to
enter such an agreement as a condition of development. To do so would essentially put all
downstream property owners at the whim of the Pacific Cascade Heights homeowners association.
The next question, then, is whether or not the requested changes suggested by the Elkins should
be required in the Road Maintenance Covenant. The Hearings Officer finds that there is no
authority in the code to allow the Road Department to waive continuing maintenance obligations.
Instead, this code section contemplates that such maintenance obligation will only go away upon
assignment to another governmental entity or road district assuming responsibility for
maintenance. Accordingly, the Hearings Officer finds the requested revisions made by the Elkins
should be incorporated into the maintenance covenant.
In summary, what this code provision does require is that a proposed subdivision be accessed by
roads constructed to County standards and by roads under one of three conditions. DCC
17.16.105(a)-(c). One of those conditions is the access road be a public road with maintenance
responsibility accepted either by a governmental entity or assigned to landowners or a
homeowners association by a covenant or agreement. DCC 17.16.105(a). In this case, it is
undisputed that Pacific Heights road is a public road. It is also further undisputed that Pacific
Heights Road, extending from O.B. Riley Road to the boundary of the proposed subdivision, is
currently maintained by the Pacific Cascade Heights homeowners association. Thus, the proposed
subdivision is accessed by a public road with maintenance responsibility assigned to a
homeowners association (Pacific Cascade Heights). The evidence in the record demonstrates
compliance with this criterion as written.
For the reasons stated in this finding as well as in the finding above for DCC 17.16.040, including
the below adopted conditions of approval, this criterion can be met.
Road Maintenance: The maintenance of all public roads within the subdivision shall be assigned to
a home owners association by covenant pursuant to DCC 17.16.040, 17.16.105, 17.48.160(A), and
17.48.180(E). Applicant shall submit the covenant in substantially the same form as submitted for
review to the Hearings Officer, subject to the changes noted above, to the Road Department for
review and shall record the covenant with the County Clerk upon Road Department approval. A
copy of the recorded covenant shall be submitted to the Community Development Department
prior to final plat approval. Further, the final plat signature sheet shall include the following note:
PUBLIC ROAD MAINTENANCE: THE OWNERS AND TENANTS OF LOTS PLATTED BY
THIS INSTRUMENT ARE HEREBY ASSIGNED TO MAINTAIN AND REPAIR ALL PUBLIC
ROADS CREATED BY THIS INSTRUMENT IN GOOD ORDER UNTIL SUCH TIME AS A
UNIT OF FEDERAL, STATE, OR LOCAL GOVERNMENT OR A SPECIAL DISTRICT
247-19-000913-LL, 19-914-TP Page 30 of 67
FORMALLY ACCEPTS MAINTENANCE RESPONSIBILITY FOR SAID PUBLIC ROADS
ACCORDING TO APPLICABLE LAWS.
Section 17 16 115 Traffic Impact Studies.
A. The traffic studies will comply with DCC 18.116.310.
FINDING: The Applicant submitted a Site Traffic Report, as required by DCC 18.116.310, prepared
by a professional engineer. The Senior Transportation Planner for Deschutes County examined the
Applicant's Site Traffic Report and its methodologies, conclusions, and recommendations and
found it complies with the applicable provisions of 18.116.310. This criterion is met.
Chapter 17.24, Final Plat.
Section 17 24 120 Improvement Agreement.
A. The subdivider may, in lieu of completion of the required repairs to existing streets
and facilities, and improvements as specified in the tentative plan, request the
County to approve an agreement between himself and the County specifying the
schedule by which the required improvements and repairs shall be completed,
provided, however, any schedule of improvements and repairs agreed to shall not
exceed on[e] year from the date the final plat is recorded, except as otherwise
allowed by DCC 17.24.120(F) below. The agreement shall also provide the following.
FINDING: The Hearings Officer understands that Section 17.24 of the Code applies to final plats.
DCC 17.24.120 specifically applies to Improvement Agreements if certain improvements will not be
made prior to final plat approval. The Applicant is not currently requesting an improvement
agreement. Any such request made in the future will need to comply with the applicable criteria
for improvement agreements.
Chapter 17.36, Design Standards.
Section 17.36.020. Streets.
A. The location, width and grade of streets shall be considered in their relation to
existing and planned streets, topographical conditions, public convenience and
safety, and the proposed use of land to be served by the streets. The street system
shall assure an adequate traffic circulation system for all modes of transportation,
including pedestrians, bicycles and automobiles, with intersection angles, grades,
tangents and curves appropriate for the traffic to be carried, considering the
terrain. The subdivision or partition shall provide for the continuation of the
principal streets existing in the adjoining subdivision or partition or of their
property projection when adjoining property which is not subdivided, and such
247-19-000913-LL, 19-914-TP Page 31 of 67
streets shall be of a width not less than the minimum requirements for streets set
forth in DCC 97.36.
FINDING: The Applicant has responded to this criterion as follows.
Consideration has been taken for existing and planned streets, topography conditions,
public convenience and safety, and the proposed land use when designing the street layout
of the proposed Tentative Plan. Pacific Heights Road is being extended from the adjoining
Pacific Cascade Heights subdivision. Proposed streets meet the minimum requirements for
street widths.
Juniper Rim Loop will be constructed to subdivision standards per County requirements for
a local road. The Applicant proposes to form an owners' association to maintain Juniper
Loop Road.
The proposed street designs, including the location, width, and grades for the road within the
proposed subdivision, are shown on the submitted Tentative Plan.
The Hearings Officer believes that, as conditioned by the Road Department requirements, this
proposal will comply with this criterion.
B. Streets in subdivisions shall be dedicated to the public, unless located in a
destination resort, planned community or planned or cluster development, where
roads can be privately owned. Planned developments shall include public streets
where necessary to accommodate present and future through traffic.
FINDING: The proposed streets are required to be dedicated to the public. A condition of approval
to require the public dedication of the proposed streets will ensure such dedication occurs.
Road Dedication: Prior to final plat approval, roads for public use shall be dedicated without any
reservation or restriction other than reversionary rights upon vacation of any such street or road
and easements for public or private utilities.
Section 17.36.040. Existing Streets.
Whenever existing streets, adjacent to or within a tract, are of inadequate width to
accommodate the increase in traffic expected from the subdivision or partition or by the
County roadway network plan, additional rights of way shall be provided at the time of
the land division by the applicant. During consideration of the tentative plan for the
subdivision or partition, the Planning Director or Hearings Body, together with the Road
Department Director, shall determine whether improvements to existing streets adjacent
to or within the tract, are required. If so determined, such improvements shall be required
as a condition of approval for the tentative plan. Improvements to adjacent streets shall
be required where traffic on such streets will be directly affected by the proposed
subdivision or partition.
247-19-000913-LL, 19-914-TP Page 32 of 67
FINDING: The Applicant proposes access to the subdivision via existing privately -maintained and
County -maintained roads. The County Road Department did not identify the need for
improvements to presently existing segments of streets.
Section 17.36.050. Continuation of Streets.
Subdivision or partition streets which constitute the continuation of streets in contiguous
territory shall be aligned so that their centerlines coincide.
FINDING: One of the proposed new roadways will be a continuation of Pacific Heights Road, with
the centerlines coinciding. This standard will be met.
Section 17 36 060 Minimum Right of Way and Roadway Width.
The street right of way and roadway surfacing widths shall be in conformance with
standards and specifications set forth in DCC 17.48. Where DCC refers to street standards
found in a zoning ordinance, the standards in the zoning ordinance shall prevail.
FINDING: The street right-of-way and surfacing widths comply with the standards of DCC 17.48, as
reviewed and conditioned herein. The Deschutes County Road Department requested several
conditions of approval to ensure compliance with this criterion, which are recommended as
conditions of approval included throughout this decision. Additionally, all road designs will be
reviewed and approved by the County Road Department prior to approval of the final plat. The
Hearings Officer finds that this criterion will be met under the proposal, when combined with the
proposed conditions.
Section 17.36.070. Future Resubdivision.
Where a tract of land is divided into lots or parcels of an acre or more, the Hearings Body
may require an arrangement of lots or parcels and streets such as to permit future re -
subdivision in conformity to the street requirements and other requirements contained in
DCC Title 17.
FINDING: All proposed lots are more than one -acre in size. The lots are arranged along the new
extension of Pacific Heights Road or Juniper Rim Loop, providing adequate arrangement and
frontage for a future re -subdivision. This criterion will be met.
Section 17.36.080. Future extension of streets.
When necessary to give access to or permit a satisfactory future division of adjoining land,
streets shall be extended to the boundary of the subdivision or partition.
FINDING: The Applicant has responded to this criterion as follows:
247-19-000913-LL, 19-914-TP Page 33 of 67
As shown on the Tentative Plat, the Applicant proposes extending Pacific Heights
Road through the property to the boundary with the property to the south, which will
permit a future connection.
Upon review of the submitted tentative plan, staff sent the following request in the incomplete
letter:
Staff notes that three (3) lots adjacent to the subject property are potentially large enough
to permit future division under the current zoning criteria. These lots are identified as
follows:
Map and Tax Lot: 17-12-07, 502
o Zoning: Exclusive Farm Use, Flood Plain
Map and Tax Lot: 17-12-07, 601
o Zoning: Urban Area Reserve
- Map and Tax Lot: 17-12-07, 503
o Zoning: Urban Area Reserve
Based on the submitted application materials, the Applicant proposes to extend Pacific
Heights Road to provide future access to the property directly south of the subject parcel
identified as Map and Tax Lot: 17-12-07, 503. However, the remaining streets associated
with the proposed development, including the proposed Juniper Rim Loop, will not extend
to the boundaries of the remaining two parcels described above. Staff notes that to give
access to or permit a satisfactory future division of adjoining land, streets shall be extended
to the boundary of the subdivision or partition.
Please provide additional information describing how streets shall be extended to the
boundary of the remaining two parcels described above as Map and Tax Lot: 17-12-07, 502
and Map and Tax Lot: 17-12-07, 601 (figures below):
[Intentionally Left Blank]
247-19-000913-LL, 19-914-TP Page 34 of 67
Tax Lot 601
[Intentionally Left Blank]
247-19-000913-LL, 19-914-TP Page 35 of 67
Tax Lot 502
The Applicant provided the following information concerning this criterion in the incomplete
response materials:
Staff has noted that the Applicant has not proposed to stub roads to Tax Lot 502 to the
north or to Tax Lot 601 to the south. With respect to Tax Lot 601, the property owners, Ed
and Doris Elkins, have advised the Applicant that they do not want a road stubbed to Tax
Lot 601. See the enclosed February 14, 2020 email from their lawyer, Kevin Keillor. The
Elkinses also own Tax Lot 503, and the Applicant has proposed extending Pacific Heights
Road to the boundary of Tax Lot 503. Based upon this, the owners of Tax Lot 601 prefer to
provide access to Tax Lot 601 through Tax Lot 503. Thus, stubbing a road to Tax Lot 601 is
247-19-000913-LL, 19-914-TP Page 36 of 67
not "necessary to give access" or to "permit a satisfactory future division of adjoining land...."
Thus, no street extension to Tax Lot 601 is needed.
With respect to Tax Lot 502, that parcel is owned by the Oregon Parks and Recreation
Department. The Applicant has made several attempts to reach a representative from the
Department to discuss future plans (the local representative advised that such issues are
handled out of Salem and not locally). Given the public ownership, the existing recreational
uses of the park there (hiking and enjoying nature and river views), subdivision or other
development seems unlikely. Considering that subdivision of this parcel is not addressed or
planned in the current (1986) Parks Master Plan for Deschutes County, and the District has
not commented on this application, the Applicant believes there is no need for a road to be
stubbed to the boundary of Tax Lot 502 at this time. The Applicant believes that constructing
one at this time in the vague possibility that it might be used at some time in the distant
future (at which point it would likely need to be reconstructed because of damage from the
elements and to bring it up to then -applicable code standards) seems a terrible waste and
an unnecessary environmental impact. If the County is concerned about possible future
access, the Applicant proposes the imposition of a condition of approval requiring the
dedication of right-of-way for a future road, if it is ever needed.
Mr. Dahlen stated in his June 30, 2020, email that in regards "to the road connectivity to the north
notwithstanding the sentiments of the current Oregon Parks and Recs Management, connectivity
is a requirement as noted by county staff in the 'incomplete' letter and this requirement cannot be
waived by an adjoining property owner, [i]t is entirely possible that future managers of [OPRD] will
want to provide river access from the [Pacific Heights] road and this should be permanently
blocked by a shortsighted approval." Mr. Dahlen does not cite the relevant code section this
argument relates to, but the Hearings Officer believes it is directed at this DCC 17.36.080.
The Applicant responded by noting that OPRD has "expressly stated that a road is not necessary
for a future partition or subdivision and is not needed for access. The Applicant and OPRD have
agreed upon an easement that will provide the access that OPRD anticipates needing." Cooper Ltr,
July 21, 2020. OPRD does not want a road stubbed to its adjacent boundary (to the north of the
subject property) because it is contrary to the statement purpose of the property, which is
conservation. According to the Applicant, a stubbed road might lead to trespassing that could
damage sensitive ecosystems, harass wildlife, or lead to fires. Cooper Ltr, July 7, 2020. To confirm
the understanding between the Applicant and OPRD, the Applicant submitted an email and form
easement that has been approved by OPRD to allow pedestrian and vehicular access to OPRD's
property for use by OPRD employees and contractors to inspect and maintain OPRD's property.
However, the Hearings Officer notes the easement would not allow the public access, should the
OPRD property be put to different use in the future.
Mr. Dahlen's interpretation of this code section is reasonable. However, the Hearings Officer
interprets DCC 17.36.080 differently. As the Hearings Officer interprets this code section, it is
intended (1) to ensure access, or (2) to permit a satisfactory future division of adjoining land by
requiring, if necessary, streets to be extended to the boundary of the subdivision. Put otherwise, if
247-19-000913-LL, 19-914-TP Page 37 of 67
necessary, to give access or allow for satisfactory future division of adjoining land, then streets
must be extended to the subdivision boundary.
In the case of Tax Lot 502 to the north of the subjection property, the Applicant and OPRD have
agreed to an access easement. DCC 17.36.080 does not state the extent to which access must be
allowed. In this case, though, the property owner (OPRD) has consented to access as permitted by
the proposed easement. Thus, with a condition of approval requiring that the easement be
recorded, access to Tax Lot 502 can be ensured.
Perhaps slightly less clear is whether a street must be stubbed to the boundary to allow
"satisfactory' future division of Tax Lot 502. The code does not state to whose satisfaction future
division must be ensured. In this case, the Hearings Officer considered that perhaps it was the
County's satisfaction (but Staff did not make that argument), the public's satisfaction, or the
adjoining property owner's satisfaction. Ultimately, the Hearings Officer concluded it should be to
the adjoining property owner's satisfaction since it is their property to divide or not. In this case,
OPRD has conveyed that they intend to manage the land for conservation and that access to the
OPRD property risks harm to the ecosystem, wildlife, and increases the risk of fire. Accordingly, in
light of the adjacent property owner's position, the Hearings Officer finds it is not necessary to
require a stubbed road to Tax Lot 502 to allow "satisfactory" future division. OPRD has stated it is
not necessary.
With that interpretation in mind, the Hearings Officer turns to Tax Lot 601 to the south. In this case,
Tax Lots 601 and 503, both to the immediate south of the proposed subdivision, are owned by the
same landowner, the Elkins Family Revocable Trust (the "Elkins"). Again, the Applicant has been in
contact with the landowner. In this case, the Applicant and the Elkins have agreed to an access
easement providing access to Tax Lot 601. A copy of the proposed easement is included with
applicant's submittal dated July 7th, 2020. The proposed easement includes an agreement to
dedicate the right of way for a road in the event the Elkins need it in the future to develop their
property. The Elkins confirmed in a letter from their attorney dated July 7th, 2020, they believe this
satisfactory to allow access to Tax Lot 601. The Hearings Officer also notes that the Applicant's
tentative plan shows Pacific Heights Road being stubbed to the northern property line of Tax Lot
503. Since Tax Lot 503 and Tax Lot 601 are in common ownership, they have control over access
to Tax Lot 601 should the Elkins elect to continue a road from Tax Lot 503 to Tax Lot 601 for future
division (in addition to the proposed easement).
For these reasons, the Hearings Officer finds that the Applicant can meet the requirements of DCC
17.36.080 with the following conditions of approval.
Access to Tax Lot 502: The Applicant shall execute an easement in substantially the same form as
attached to the letter from Ms. Cooper dated July 7, 2020, as Item 4 prior to recording the final plat.
The easement shall be recorded as soon as is reasonably practical after the final plat is recorded.
Access to Tax Lot 601: The Applicant shall execute an easement in substantially the same form as
attached to the letter from Ms. Cooper dated July 7, 2020, as Item 5 prior to recording the final plat.
The easement shall be recorded as soon as is reasonably practical after the final plat is recorded.
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Section 17 36 100. Frontage Roads.
If a land division abuts or contains an existing or proposed collector or arterial street, the
Planning Director or Hearings Body may require frontage roads, reverse frontage lots or
parcels with suitable depth, screen planting contained in a non -access reservation along
the rear or side property line, or other treatment necessary for adequate protection of
residential properties and to afford separation of through and local traffic. All frontage
roads shall comply with the applicable standards of Table A of DCC Title 17, unless
specifications included in a particularzone provide other standards applicable to frontage
roads.
FINDING: The proposed subdivision does not abut or contain an existing or proposed collector or
arterial street. This criterion is not applicable.
Section 17.36.120. Street Names.
Except for extensions of existing streets, no street name shall be used which will duplicate
or be confused with the name of an existing street in a nearby city or in the County. Street
names and numbers shall conform to the established pattern in the County and shall
require approval from the County Property Address Coordinator.
FINDING: This criterion can be met with the following condition of approval.
Street Names: All roads shall be named in conformance with the provisions of the Deschutes
County uniform road naming system set forth in DCC Title 16. Except for extensions of existing
streets, no street name shall be used which will duplicate or be confused with the name of an
existing street in a nearby city or in the County. Street names and numbers shall conform to the
established pattern in the County and shall require approval from the County Property Address
Coordinator.
Section 17.36.130. Sidewalks.
A. Within an urban growth boundary, sidewalks shall be installed on both sides of a
public road or street and in any special pedestrian way within the subdivision or
partition, and along any collectors and arterials improved in accordance with the
subdivision or partition.
B. Within an urban area, sidewalks shall be required along frontage roads only on the
side of the frontage road abutting the development.
C. Sidewalk requirements for areas outside of urban area are set forth in section
17.48.175. In the absence of a special requirement set forth by the Road
Department Director under DCC 17.48.030, sidewalks and curbs are never required
in rural areas outside unincorporated communities as that term is defined in Title
18.
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FINDING: These criteria are not applicable to the proposed development because the subject
property is located outside of an acknowledged Urban Growth Boundary. Sidewalks are not
required for this subdivision pursuant to subsection (C) above.
Section 17.36.140. Bicycle, Pedestrian and Transit Requirements.
Pedestrian and Bicycle Circulation within Subdivision.
A. The tentative plan for a proposed subdivision shall provide for bicycle and
pedestrian routes, facilities and improvements within the subdivision and to
nearby existing or planned neighborhood activity centers, such as schools,
shopping areas and parks in a manner that will.
1. Minimize such interference from automobile traffic that would discourage
pedestrian or cycle travel for short trips,
2. Provide a direct route of travel between destinations within the subdivision
and existing or planned neighborhood activity centers, and
3. Otherwise meet the needs of cyclists and pedestrians, considering the
destination and length of trip.
FINDING: The Applicant has responded to this criterion as follows.
The proposed planned development is accessed via public roads to the proposed lots.
Bicycle and pedestrian traffic will be accommodated on the proposed roads that will be
constructed to the standards for a rural local road. Because of the rural nature of the area
and the low volume of vehicular traffic, pedestrian and bicycle transportation can be easily
and safely accommodated on the proposed roads. There are no existing or planned
neighborhood activity centers nearby.
Staff stated there is an existing neighborhood activity center nearby. Specifically, the western and
northern boundaries of the subject property are abutted by several properties included in Tumalo
State Park which is operated by Oregon Parks and Recreation. While the Site Traffic Report
indicated a relatively low number of daily vehicle trips, staff was unclear if bicycle trips could be
accomplished using the existing and proposed roads, particularly if additional access to state park
property is required as a part of this development.
The Applicant responded, "...the remote location of the property and the fact that that ODPR
property immediately to the north of the [subject property] is intended for conservation and not
recreation means that neither a dedicated bike trail nor a dedicated bike lane is necessary." Cooper
Ltr, July 7th, 2020. In support of the Applicant's position, Transight Consulting submitted supporting
analysis explaining why a bicycle connection on Pacific Heights Road is not necessary.
OPRD commented in a letter dated June 2611, 2020, that it did not want a stub road or bicycle path
connecting to its property (Tax Lot 601) because it would encourage public to enter that portion of
the park that is not suited for large-scale recreation. The letter further notes that this portion of
the park is intended for conversation, not recreation and that the southern portion (adjacent to
the subject property) is not contiguous to the northern part of the park.
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The Hearings Officer is not aware of a stand-alone definition of "neighborhood activity centers."
However, in at least two locations within DCC 17.36, it is noted neighborhood activity centers
include locations like schools, shopping malls, and parks. There is no evidence in the record that a
school or shopping area exists near the subject property. The question, then, is whether the
portion of Tumalo State Park that to the immediate north of the subject property is a neighborhood
activity center. The initial reaction might be that the state park would constitute a neighborhood
activity center. However, based on comments from the Applicant and OPRD, the Hearings Officer
questions this conclusion.
Title 17 does not include a definition for "park". Although not directly relevant, Title 18 of the Code
defines "public park" as:
"...an area of natural or ornamental quality for outdoor recreation that provides the
resource base for the following activities: picnicking, boating, fishing, swimming, camping,
and hiking or nature oriented recreation such as viewing and studying nature and wildlife
habitat, and may include play area and accessory facilities that support the activities listed
above."
In this case, use of the work "park" is in regard to "neighborhood activity centers", including parks,
shopping area and schools. Such uses typically are associated with regular and constant public use.
Moreover, the definition of parks in Title 18 of the Code implies recreational use by the public.
Given that this portion of the state park is isolated from main part of the state park, is intended for
conservation (not recreation) and has limited public use, the Hearings Officer concludes it does not
constitute a neighborhood activity center. Thus, the Hearings Officer finds that DCC 17.36.140(A)
does not require a bicycle path leading to the adjacent park.
Moreover, as explained in the memorandum from Transight Consulting dated July 7th, 2020, the
public portions of Tumalo State Park and Riley Ranch Nature Reserve (managed by BPRD) are
accessed via O.B. Riley Road, which contains bicycle lanes and is designated as a Bicycle Route. The
memorandum notes that Pacific Heights Road only serves a small number of residences (24
including the 10 proposed lots that are subject of this application). Given the low level of traffic,
according to Transight, the cyclists will be supported within the low speed shared use environment.
The record does not contain a response from any party regarding Transight Consulting's
memorandum.
For the above reasons, as explained by the Applicant's attorney and traffic engineer, the Hearings
Officer finds this criterion is met.
B. Subdivision Layout.
1. Cul-de-sacs or dead-end streets shall be allowed only where, due to
topographical or environmental constraints, the size and shape of the
parcel, or a lack of through -street connections in the area, a street
connection is determined by the Planning Director or Hearings Body to be
infeasible or inappropriate. in such instances, where applicable and
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feasible, there shall be a bicycle and pedestrian connection connecting the
ends of cul-de-sacs to streets or neighborhood activity centers on the
opposite side of the block.
FINDING: The Applicant has responded to this criterion as follows:
The Applicant is proposing a loop road, which is the most appropriate road design,
considering the topography and the desire to minimize pavement through the subdivision.
Accordingly, this design is the most efficient design. No streets currently exist to the north,
west or south. No future streets are likely to the north (because the land is park property)
or to the west (because of the rim and the river). The Applicant is proposing a connection
to, and extension of Pacific Heights Road from the east.
The Applicant's tentative plan, titled "Supplementary Materials - Revised Tentative Plan 3-3-
20" in the record, shows that the applicant is planning for a loop road with a stubbed road
at the southern boundary. The Applicant's explanation indicates that development to the
west and north are not feasible. The stubbed road to the south will allow for development
to the south. The Hearings Officer finds that this criterion is met.
Z Bicycle and pedestrian connections between streets shall be provided at mid
block where the addition of a connection would reduce the walking or
cycling distance to an existing or planned neighborhood activity center by
400 feet and by at least 50 percent over other available routes.
FINDING: The Applicant has responded to this criterion as follows:
There are no existing or planned neighborhood activity centers in the vicinity of the
proposed subdivision.
Staff expressed concern that the subdivision is located near an existing neighborhood activity
center, specifically Tumalo State Park. As explained previously, the Hearings Officer does not
believe that portion of Tumalo State Park constitutes a neighborhood activity center because it is
intended for conservation and not public recreation. Therefore, pedestrian and bicycle connection
to Tumalo State Park to the immediate north of the subject property is not required. This criterion
is met.
3. Local roads shall align and connect with themselves across collectors and
arterials. Connections to existing or planned streets and undeveloped
properties shall be provided at no greater than 400 foot intervals.
4. Connections shall not be more than 400 feet long and shall be as straight as
possible.
FINDING: The proposed extension of Pacific Heights Road and Juniper Rim Loop do not cross a
collector or arterial road. There is no opportunity to align and connect with existing or planned
streets.
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C. Facilities and Improvements.
1. Bikeways may be provided by either a separate paved path or an on -street
bike lane, consistent with the requirements of DCC Title 17.
2. Pedestrian access may be provided by sidewalks or a separate paved path,
consistent with the requirements of DCC Title 17.
3. Connections shall have a 20 foot right of way, with at least a 10 foot usable
surface.
FINDING: The proposed roads within the subdivision, and all roads leading to the subdivision with
the exception of OB Riley Road approximately 0.57 miles to the east, are public local roads, with
very low anticipated traffic volumes due to the project location and scope of development. OB Riley
Road is a designated collector street. Due to the presence of OB Riley Road and Tumalo State Park
adjacent to the subject property, staff was uncertain if separate bikeways should be required and
requests the Hearings Officer to make specific findings on this issue. Staff noted that separate
bikeways or bike lanes are not warranted, nor required for local roads.
As previously discussed, the presence of a portion of Tumalo State Park that is intended for
conservation use and not recreational use, does not warrant bikeway or pedestrian access.
Additionally, given the low anticipated traffic volumes on Pacific Heights Road (as stated by the
Applicant's traffic engineer), which leads to O.B. Riley Road, there is no need for bikeways or
pedestrian access to O.B. Riley Road.
Section 17.36.150. Blocks.
A. General. The length, width and shape of blocks shall accommodate the need for
adequate building site size, street width and direct travel routes for pedestrians
and cyclists through the subdivision and to nearby neighborhood activity centers,
and shall be compatible with the limitations of the topography.
B. Size. Within an urban growth boundary, no block shall be longer than 1,200 feet
between street centerlines. In blocks over 800 feet in length, there shall be a cross
connection consistent with the provisions of DCC 17.36.140.
FINDING: The proposal is for 10 lots situated along a central loop road for access. The subject
property is not within an Urban Growth Boundary. The lots are all approximately 10.01 acres in
size.
Based on comments from the Road Department, staff believes the length, width and shape of
blocks shall accommodate the need for adequate street width. Given the 10.0-acre lot sizes, there
will be adequate building site area.
As noted previously, the Hearings Officer has concluded that the adjacent park land to the north
does not constitute a neighborhood activity center given the lack of large-scale public use since it
is not intended for recreational use. Therefore, there is no need for direct travel routes for
pedestrians and cyclists.
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The Hearings Officer finds this criterion is met.
Section 17.36.160. Easements.
A. Utility Easements. Easements shall be provided along property lines when
necessary for the placement of overhead or underground utilities, and to provide
the subdivision or partition with electric power, communication facilities, street
lighting, sewer lines, water lines, gas lines or drainage. Such easements shall be
labeled "Public Utility Easement" on the tentative and final plat, they shall be at
least 12 feet in width and centered on lot lines where possible, except utility pole
guyline easements along the rear of lots or parcels adjacent to unsubdivided land
may be reduced to 10 feet in width.
B. Drainage. If a tract is traversed by a watercourse such as a drainageway, channel
or stream, there shall be provided a storm water easement or drainage right of way
conforming substantially with the lines of the watercourse, or in such further width
as will be adequate for the purpose. Streets or parkways parallel to major
watercourses or drainageways may be required.
FINDING: To meet this criterion the Hearings Officer adopts the below condition of approval
Utility Easements: Prior to final plat approval, all required utility easements shall be shown on
the final plat. Easements shall be provided along property lines when necessary for the placement
of overhead or underground utilities, and to provide the subdivision or partition with electric
power, communication facilities, street lighting, sewer lines, water lines, gas lines or drainage. Such
easements shall be labeled "Public Utility Easement" on the tentative and final plat; they shall be
at least 12 feet in width and centered on lot lines where possible, except utility pole guyline
easements along the rear of lots or parcels adjacent to unsubdivided land may be reduced to 10
feet in width.
Regarding Criterion (B), the Hearings Officer does not believe it is applicable due to the fact that
the Deschutes River abuts the subject property at the very northwest corner, but does not traverse
the parcel.
Section 17.36.170. Lots, Size and Shape.
The size, width and orientation of lots or parcels shall be appropriate for the location of
the land division and for the type of development and use contemplated, and shall be
consistent with the lot or parcel size provisions of DCC Title 18 through 21, with the
following exceptions:
A. In areas not to be served by a public sewer, minimum lot and parcel sizes shall
permit compliance with the requirements of the Department of Environmental
Quality and the County Sanitarian, and shall be sufficient to permit adequate
sewage disposal. Any problems posed by soil structure and water table and related
to sewage disposal by septic tank shall be addressed and resolved in the applicant's
initial plan.
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B. Where property is zoned and planned for business or industrial use, other widths
and areas may be permitted by the Hearings Body. Depth and width of properties
reserved or laid out for commercial and industrial purposes shall be adequate to
provide for the off street service and parking facilities required by the type of use
and development contemplated.
FINDING: The application materials state:
The size, width, and orientation of lots are appropriate for the location of the
subdivision in a UAR10 zoning district and residential. The proposed development
creates ten lots that are appropriate for development with single-family homes. The
development complies with the lot size provisions of Title 19, the applicable title.
The minimum lot sizes are large enough to permit compliance with DEQ and County
Sanitarian requirements for sewage disposal systems. There are no unusual
problems caused by the soil structure or water table that negatively impact sewage
disposal by septic tank.
The size, width, and orientation of the lots are appropriate to the proposed residential use. The
proposed lots will be approximately 10.01 acres in size, allowing for multiple alternative locations
for subsurface sewage disposal systems. No known problems with the soil structure or the water
table are represented in the record. This proposal can comply with the required structural
setbacks, as discussed and conditioned in this decision. Subsection (B) above does not apply to this
proposal. These criteria will be met.
Section 17.36.180. Frontage.
A. Each lot or parcel shall abut upon a public road, or when located in a planned
development or cluster development, a private road, for at least 50 feet, except for
lots or parcels fronting on the bulb of a cul de sac, then the minimum frontage shall
be 30 feet, and except for partitions off of U.S. Forest Service or Bureau of Land
Management roads. In the La Pine Neighborhood Planning Area Residential Center
District, lot widths may be less than 50 feet in width, as specified in DCC 1&61,
Table 2. La Pine Neighborhood Planning Area Zoning Standards. Road frontage
standards in destination resorts shall be subject to review in the conceptual master
plan.
FINDING: As shown on the submitted tentative plan, each lot has a minimum frontage of 50 feet
along the proposed extension of Pacific Heights Road or Juniper Rim Loop, which are to be
dedicated to the public upon plat of the subdivision, and therefore this criterion is satisfied.
B. All side lot lines shall be at right angles to street lines or radial to curved streets
wherever practical.
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FINDING: The side lot lines are perpendicular or radial to the proposed extension of Pacific Heights
Road or juniper Rim Loop as nearly as practicable. Due to the meandering nature of both Pacific
Heights Road and juniper Rim Loop responding to existing topography, some of the proposed side
lot lines are not perpendicular or radial so as to form regular, square, buildable lots. This is
consistent with surrounding development on Pacific Heights Road.
Section 17.36.190. Through Lots.
Lots or parcels with double frontage should be avoided except where they are essential to
provide separation of residential development from major street or adjacent
nonresidential activities to overcome specific disadvantages of topography and
orientation. A plantingscreen easement of at least 10 feet in width and across which there
shall be no right of access may be required along the lines of lots or parcels abutting such
a traffic artery or other incompatible use.
FINDING: Two of the proposed lots will have double frontage (Lots 1 and 9 on the revised tentative
plan). The properties will require double frontage for two specific reasons:
• The topography of the subject property, specifically the adjacent Deschutes River Canyon
to the west, requires that a loop road be constructed through the site to provide safe and
efficient access for future residents and public safety personnel. The orientation of the
proposed loop road Quniper Rim Loop), will cause these two properties to have double
frontage which cannot be avoided under a loop road access scenario.
• The Applicant is required to extend right-of-way access to neighboring Tax Lot 503, and
potentially neighboring Tax Lots 601 and 502, pursuant to DCC 17.36.080. The required
street extensions to neighboring properties, in conjunction with the loop road described
above for safe access and the restricted topography of the area, requires that at least
certain properties developed onsite will be subject to double frontage.
This criterion is met.
Section 17.36.210. Solar Access Performance.
A. As much solar access as feasible shall be provided each lot or parcel in every new
subdivision or partition, considering topography, development pattern and existing
vegetation. The lot lines of lots or parcels, as far as feasible, shall be oriented to
provide solar access at ground level at the southern building line two hours before
and after the solar zenith from September 22nd to March 21st. If it is not feasible
to provide solar access to the southern building line, then solar access, if feasible,
shall be provided at 10 feet above ground level at the southern building line two
hours before and after the solar zenith from September 22nd to March 21st, and
three hours before and after the solar zenith from March 22nd to September 21st.
B. This solar access shall be protected by solar height restrictions on burdened
properties for the benefit of lots or parcels receiving the solar access.
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C. If the solar access for any lot or parcel, either at the southern building line or at 10
feet above the southern building line, required by this performance standard is not
feasible, supporting information must be filed with the application.
FINDING: The application materials state:
The proposed 10-acre residential lot sizes will be adequate to maximize solar access
for future dwellings on the lots. Compliance with solar setbacks will be determined at
the building permit stage.
At approximately 10.01 acres, the proposed lots will be adequate to allow solar access for all
dwellings. All structures will be required to comply with the solar requirements of DCC 18.116.180.
These criteria will be met.
Section 17 36 230 Grading of Building Sites.
Grading of building sites shall conform to the following standards, unless physical
conditions demonstrate the property of other standards:
A. Cut slope ratios shall not exceed one foot vertically to one and one half feet
horizontally.
B. Fill slope ratios shall not exceed one foot vertically to two feet horizontally.
C. The composition of soil for fill and the characteristics of lots and parcels made
usable by fill shall be suitable for the purpose intended.
D. ifi/ihen filling or grading is contemplated by the subdivider, .he shall submit plans
showing existing and finished grades for the approval of the Community
Development Director. In reviewing these plans, the Community Development
Director shall consider the need for drainage and effect of filling on adjacent
property. Grading shall be finished in such a manner as not to create steep banks
or unsightly areas to adjacent property.
FINDING: No grading or fill has been proposed by the Applicant. To ensure compliance with this
provision, the Hearings Officer adopts these criteria as conditions of any approval.
Grading: Grading of building sites shall conform to the following standards, unless physical
conditions demonstrate the property of other standards:
A. Cut slope ratios shall not exceed one foot vertically to one and one half feet
horizontally.
B. Fill slope ratios shall not exceed one foot vertically to two feet horizontally.
C. The composition of soil for fill and the characteristics of lots and parcels made usable
by fill shall be suitable for the purpose intended.
D. When filling or grading is contemplated by the subdivider, he shall submit plans
showing existing and finished grades for the approval of the Community Development
Director. In reviewing these plans, the Community Development Director shall consider the
need for drainage and effect of filling on adjacent property. Grading shall be finished in such
a manner as not to create steep banks or unsightly areas to adjacent property.
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Section 17.36.260. Fire Hazards.
Whenever possible, a minimum of two points of access to the subdivision or partition shall
be provided to provide assured access for emergency vehicles and ease resident
evacuation.
FINDING: The application materials state:
The proposed configuration only includes one point of access to Pacific Heights Road.
While the Applicant does propose extending Pacific Heights Road to the south
property line, the road will not be constructed until that property develops. No
connection is possible to the north (because it is park land) or to the west (because of
the rim and the river). Thus, a second access point is not feasible at this time.
Additionally, staff notes that no comments were received from Larry Medina, Deputy Fire Chief for
the Bend Fire Department, related to a possible secondary access point to the proposed property.
Larry Medina provided the following comments as they relate to the proposed development:
Approved fire apparatus access roads shall be provided for everyfacility, building or portion
of a building hereafter constructed or moved into or within the jurisdiction. The fire
apparatus access road shall comply with the requirements of this section and shall extend
to within 150 feet of all portions of the facility and all portions of the exterior walls of the
first story of the building as measured by an approved route around the exterior of the
building or facility...
An approved water supply capable of supplying the required fire flow for fire protection
shall be provided to premises upon which facilities, buildings or portions of buildings are
hereafter constructed or moved into or within the jurisdiction...
Staff concurred that no secondary access is currently possible given the surrounding existing
development pattern and topographical constraints. The Hearings Officer agrees and finds this
criterion is met.
Section 17.36.270. Street Tree Planting.
Street tree planting plans, if proposed, for a subdivision or partition, shall be submitted
to the Planning Director and receive his approval before the planting is begun.
FINDING: No street trees have been proposed by the Applicant.
Section 17.36.280. Water and Sewer Lines.
Where required by the applicable zoning ordinance, water and sewer lines shall be
constructed to County and City standards and specifications. Required water mains and
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service lines shall be installed prior to the curbing and paving of new streets in all new
subdivisions or partitions.
FINDING: No water or sewer lines are required by the applicable zoning ordinance. Water delivery
and waste disposal is proposed through private, individual wells and onsite septic systems.
Section 17.36.290. Individual Wells.
In any subdivision or partition where individual wells are proposed, the applicant shall
provide documentation of the depth and quantity of potable water available from a
minimum of two wells within one mile of the proposed land division. Notwithstanding DCC
17.36.300, individual wells for subdivisions are allowed when parcels are larger than 10
acres.
FINDING: The application materials state:
Private individual wells are proposed for the project. The Applicant has provided Oregon
Water Resources Department well logs, DESC 61077 and DESC 61390, located within one
mile of the Tentative Plan (both in the adjacent Pacific Cascade Heights Subdivision),
documenting the availability of potable water. This subdivision proposes a minimum lot size
of 10 acres. As a result, DCC 17.36.300 does not apply.
Based on the revised tentative plan, all lots in the proposed subdivision will be 10.01 gross acres
in size. Therefore, individual wells are allowed.
Section 17.36.300, Public Water System.
in any subdivision or partition where a public water system is required or proposed, plans
for the water system shall be submitted and approved by the appropriate state or federal
agency. A community water system shall be required where lot or parcel sizes are less
than one acre or where potable water sources are at depths greater than 500 feet,
excepting land partitions. Except as provided for in sections 1 Z24.120 and 17.24.130, a
required water system shall be constructed and operational, with lines extended to the
lot line of each and every lot depicted in the proposed subdivision or partition plat, prior
to final approval.
FINDING: Pursuant to DCC 17.36.290, private individual wells are allowed for subdivisions when
parcels are larger than 10 acres. This criterion does not apply.
Chapter 17.44, Park Development.
Section 17.44.010. Dedication of Land.
A. For subdivisions or partitions inside an urban growth boundary, the developer shall
set aside and dedicate to the public for park and recreation purposes not less than
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eight percent of the gross area of such development, if the land is suitable and
adaptable for such purposes and is generally located in an area planned for parks.
FINDING: The subject property is not within an urban growth boundary.
B. For subdivisions or partitions outside of an urban growth boundary, the developer
shall set aside a minimum area of the development equal to $350 per dwelling unit
within the development, if the land is suitable and adaptable for such purposes
and is generally located in an area planned for parks.
C. For either DCC 17.44.010 (A) or (B), the developer shall either dedicate the land set
aside to the public or develop and provide maintenance for the land set aside as a
private park open to the public.
D. the Planning Director or Hearings Body shall determine whether or not such land
is suitable for park purposes.
E. if the developer dedicates the land set aside in accordance with DCC 17.44.010 (A)
or (B), any approval by the Planning Director or Hearings Body shall be subject to
the condition that the County or appropriate park district accept the deed
dedicating such land.
F. DCC 17.44.010 shall not apply to the subdivision or partition of lands located within
the boundaries of a parks district with a permanent tax rate.
FINDING: As discussed below, the Applicant has proposed to annex to the Bend Metro Park and
Recreation District. Thus, per subsection (F), DCC 17.44.010 does not apply.
Section 17.44.030. Annexation Agreement.
No partition or subdivision of land lying within the Bend Urban Growth Boundary,
including the urban reserve areas, but outside the boundaries of the Bend Metro Park and
Recreation District, shall be approved unless the landowner has signed an annexation
agreement with the Bend Metro Park and Recreation District.
FINDING: The proposed partition is located inside the Urban Reserve Area and based on the
current Bend Metro Park and Recreation District Comprehensive Plan, the property is outside the
boundaries of the district. Based on the application materials, the Applicant agrees to sign an
annexation agreement with the Bend Metro Park and Recreation District. The Hearings Officer
therefore adopts the following condition of approval.
Park District Annexation: The applicant shall sign an annexation agreement with Bend Metro Park
and Recreation District and submit a copy of the agreement to the Planning Division prior to final
plat approval.
Chapter 17.48, Design and Construction Specifications.
Section 17 48 100. Minimum Right of Way Width.
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The minimum right of way width is 60 feet unless specified otherwise in Table A (or in any
right of way specifications set forth for a particular zone in a zoning ordinance). (See Table
A set out at the end of DCC Title 17.)
FINDING: The proposed right-of-way dedication for both the Pacific Heights Road extension and
Juniper Rim Loop through the subdivision is 60 feet in width, meeting the requirements of this
section and Table A.
Section 17.48.110. Turn Lanes.
When a turn lane is required, it shall be a minimum of 14 feet in width, except where road
specifications in a zoning ordinance provide for travel lanes of lesser width. Additional
right of way may be required.
FINDING: No turn lane is proposed or required.
Section 17.48.120 Partial Width Roads.
Partial width roads or half streets shall not be allowed.
FINDING: No partial width road or half streets are proposed.
Section 17.48.130. Road Names.
All roads shall be named in conformance with the provisions of the Deschutes County
uniform road naming system set forth in DCC Title 16.
FINDING: This criterion can be met with the condition of approval previously required regarding
street names.
Section 17.48.140. Bikeways.
A. General Design Criteria.
1. Bikeways shall be designed in accordance with the current standards and
guidelines of the Oregon (ODOT) Bicycle and Pedestrian Plan, the American
Association of State Highway Transportation Officials (AASHTO) Guide for
Development of New Bicycle Facilities, and the Deschutes County Bicycle
Master Plan. See DCC 17.48 Table B.
Z All collectors and arterials shown on the County Transportation Plan map
shall be constructed to include bikeways as defined by the Deschutes County
Bicycle Master Plan.
3. If interim road standards are used, interim bikeways and/or walkways shall
be provided. These interim facilities shall be adequate to serve bicyclists
and pedestrians until the time of road upgrade.
B. Multi -use Paths.
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1. Multi -use paths shall be used where aesthetic, recreation and safety
concerns are primary and a direct route with few intersections can be
established. If private roads are constructed to a width of less than 28 feet,
multi -use paths shall be provided.
2. Multi -use paths are two-way facilities with a standard width of 10 feet, but
with a 12 foot width if they are subjected to high use by multiple users.
These paths shall meet County multi -use path standards and shall connect
with bike facilities on public roads.
C. Bike Lanes. Six-foot bike lanes shall be used on new construction of curbed
arterials and collectors.
D. Shoulder Bikeways.
1. Shoulder bikeways shall be used on new construction of uncurbed arterials
and collectors.
2. Shoulder bikeways shall beat least four feet wide. Where the travel lane on
an existing arterial or collector is not greater than eleven feet, the bikeway
shall be a minimum of four feet wide.
E. Mountain Bike Trails.
1. Mountain bike (dirt or other unpaved surface) trails may be used as
recreational or interim transportation facilities.
2. Trails used for transportation shall have a two foot minimum tread width
and a six-foot minimum clearing width centered over the trail, and a
minimum overhead clearance of seven feet. Trails used solely for
recreational use may be narrower with less clearing of vegetation.
FINDING: The Hearings Officer has previously found that bikeways and pedestrian connections
are not required. Therefore, this standard does not apply.
Section 17 48 160 Road Development Requirements - Standards.
A. Subdivision Standards. All roads in new subdivisions shall either be constructed to
a standard acceptable for inclusion in the county maintained system or the
subdivision shall be part of a special road district or a homeowners association in
a planned unit development.
FINDING: The proposed road extension is required to be constructed to a standard acceptable for
inclusion in the County -maintained road system, however, maintenance of the road extension will
be the responsibility of the owners of the subdivision lots. A previous condition of approval was
adopted to ensure road maintenance.
B. Improvements of Public Rights of Way.
1. The developer of a subdivision or partition will be required to improve all
public ways that are adjacent or within the land development.
2. All improvements within public rights of way shall conform to the
improvement standards designated in DCC Title 17 for the applicable road
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classification, except where a zoning ordinance sets forth different
standards for a particular zone.
FINDING: The Applicant has proposed improvements and the Hearings Officer adopts the
following condition of approval to ensure compliance with these criteria.
Road Improvements: Prior to final plat approval, the Applicant shall construct the extension of
Pacific Heights Road and Juniper Rim Loop (proposed loop road) through the subdivision according
to the submitted tentative plan and accordance with the applicable provisions of Title 17.
C. Primary Access Roads.
1. The primary access road for any new subdivision shall be improved to the
applicable standard set forth in Table A.
Z The applicable standard shall be determined with reference to the road's
classification under the relevant transportation plan.
3. For the purposes of DCC 17.48.160 a primary access road is a road leading to
the subdivision from an existing paved county, city or state maintained road
that provides the primary access to the subdivision from such a road.
FINDING: Pacific Heights Road is the primary access road to this subdivision and presently
complies with these criteria.
D. Secondary Access Roads. When deemed necessary by the County Road Department
or Community Development Department, a secondary access road shall be
constructed to the subdivision. Construction shall be to the same standard used for
roads within the subdivision.
FINDING: The subdivision will have a single access road for general use which is Pacific Heights
Road. Due to the number of lots proposed and the layout of the subdivision, the Hearings Officer
finds a secondary general access road is not required.
E. Stubbed Roads. Any proposed road that terminates at a development boundary
shall be constructed with a paved cul-de-sac bulb.
FINDING: Upon review of the submitted tentative plan staff sent the following request in the
incomplete letter:
Based on the submitted application materials, the proposed extension of Pacific Heights
Road will terminate at the boundary of the subdivision development along the southern
property line. However, the submitted tentative plan does not appear to illustrate this road
with a paved cul-de-sac bulb. Please provide additional information, including a modified
tentative plan, which demonstrates that all proposed roads which terminate at a
development boundary, including the extension of Pacific Heights Road, will be constructed
with a paved cul-de-sac bulb.
247-19-000913-LL, 19-914-TP Page 53 of 67
The Applicant subsequently provided the following response to request above in the incomplete
response materials:
As shown on the updated Tentative Plan, the Applicant proposes to construct a cul-de-sac
at the terminus of any roads that stub to undeveloped, adjacent property, in lieu of cul-de-
sacs [sic]. The Applicant did ask for the ability to replace each cul-de-sac with an alternative
hammerhead design, subject to approval by the Fire Department. The alternative
hammerhead would be identical to the stubbed road treatment at boundaries, recently
approved by the County and Fire Department, and constructed in the adjacent Pacific
Cascade Heights Subdivision. A hammerhead would be preferable, as it disturbs less land,
requires less grading and asphalt pavement that is ultimately wasted, and results in less
adverse impact to the environment, while serving the same purpose. However, staff has
indicated that there is no flexibility on this criterion, and, accordingly, the Applicant is
proposing to comply, as noted on the enclosed updated Tentative Plan.
The Hearings Officer finds the language in the code provides no flexibility regarding the cul-de-sac
requirement. The updated tentative plan depicts a cul-de-sac where Pacific Heights Road abuts Tax
Lot 503 to the south. The Applicant is therefore in compliance with this criterion.
F. Cul-de-sacs.
1. Cul-de-sacs shall have a length of less than 600 feet, unless a longer length
is approved by the applicable fire protection district, and more than 100 feet
from the center of the bulb to the intersection with the main road.
2. The maximum grade on the bulb shall be four percent.
FINDING: Staff refers to the findings above concerning DCC 17.48.160(E) and requests that the
Hearings Officer make specific findings on this issue.
The updated site plan shows a single cul-de-sac bulb, adjacent to neighboring Tax Lot 503. It shows
that the cul-de-sac will comply with these standards. The Hearings Officer adopts the following
condition of approval.
Cul-de-sacs: Any cul-de-sac to be constructed shall comply with the requirements of DCC
17.48.160(F).
Section 17.48.190. Drainage.
A. Minimum Requirements.
1. Drainage facilities shall be designed and constructed to receive and/or
transport at least a design storm as defined in the current Central Oregon
Stormwater Manual created by Central Oregon Intergovernmental Council
and all surface drainage water coming to and/or passing through the
development or roadway.
2. The system shall be designed for maximum allowable development.
B. Curbed Sections.
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C. Noncurbed Sections.
1. Road culverts shall be concrete or metal with a minimum design life of 50
years.
2. All cross culverts shall be 18 inches in diameter or larger.
3. Culverts shall be placed in natural drainage areas and shall provide positive
drainage.
D. Drainage Swales. The Design Engineer is responsible to design a drainage swale
adequate to control a design storm as defined in the Central Oregon Stormwater
Manual created by Central Oregon Intergovernmental Council.
E. Drainage Plans. A complete set of drainage plans including hydraulic and
hydrologic calculations shall be incorporated in all road improvement plans.
F. Drill Holes. Drill holes are prohibited.
G. Injection wells (drywells) are prohibited in the public right-of-way.
FINDING: In response to this criterion, the Applicant stated:
The Applicant is agreeable to a condition of approval demonstrating compliance with the
above criteria to the County Engineer via the required Road Improvement (Construction)
Plans, before public road construction, as is typical. The submitted Tentative Plan Roadways
Typical Section indicates the required County public road drainage ditches. Drainage swales,
and any necessary drainage facilities to address the above criteria will be provided in the
required Construction Plans, subject to the County Engineer's approval, as is typical.
The Applicant notes that there are no defined nor particular natural drainage courses on or
across the subject property, except of course for the Deschutes River, which just touches
the northwest corner of the property, which is some 200 feet below the developable
property, and will not be affected by the proposed subdivision infrastructure.
Curbs are neither proposed nor required for the proposed subdivision. The Hearings Officer
adopts the following condition of approval to ensure compliance with this criterion.
Drainage: Prior to final plat approval, the Applicant shall provide certification by a licensed
professional engineer that any drainage facilities have been designed and constructed to receive
and/or transport at least a design storm as defined in the current Central Oregon Stormwater
Manual created by Central Oregon Intergovernmental Council and all surface drainage water
coming to and/or passing through the development or roadway. All drainage features and designs
shall comply with DCC 17.48.190.
Section 17.48.210. Access.
A. Permit Required. Access onto public right of way or change in type of access shall
require a permit. Permits are applied for at offices of the Community Development
Department.
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B. Access Restrictions and Limitations. The creation of access onto arterials and
collectors is prohibited unless there is no other possible means of accessing the
parcel. In any event, residential access onto arterials and collectors shall not be
permitted within 100 feet of an intersection or the maximum distance obtainable
on the parcel, whichever is less.
FINDING: No access to arterial or collector roads from a proposed subdivision lot is proposed. The
following condition of approval is adopted to ensure compliance with this criterion.
Driveway Approach Permits: Prior to the issuance of building permits on each lot, a driveway
approach permit shall be obtained for each approach to the continuation of Pacific Heights Road
or Juniper Rim Loop.
TITLE 19 OF THE DESCHUTES COUNTY CODE, BEND URBAN AREA ZONING ORDINANCE
Chapter 19.12, Urban Area Reserve (UAR10) Zone.
Section 19.12.020. Permitted uses.
The following uses are permitted.
A. A single-family dwelling
FINDING: The proposed subdivision will create parcels for residential use. Single-family dwellings
are normittorl ni itriaht in thin I IApin 7nno
Section 19.12.050. Lot requirements.
The following requirements shall be observed.
A. Lot Area. Each lot shall have a minimum area of 10 acres.
FINDING: "Lot Area" as defined in DCC 19.04.040 includes the area of the adjacent street
dedications for lots 2.5 acres or greater in size. The following table shows the area in acres for
each lot proposed on the submitted tentative plan.
Lot Number
Gross Lot Area (acres)
1
10.01
2
10.01
3
10.01
4
10.01
5
10.01
6
10.01
7
10.01
8
10.01
247-19-000913-LL, 19-914-TP Page 56 of 67
9 10.01
10 10.01
B. Lot Width. Each lot shall have a minimum average width of 300 feet with a
minimum street frontage of 150 feet.
FINDING: The Applicant is proposing to extend the right of way associated with Pacific Heights
Road, and create a new loop road (tentatively named Juniper Rim Loop), with each new parcel
fronting along the newly extended road way or the new loop road. After these improvements, the
smallest minimum average width of each parcel will be 300 feet, and the smallest minimum street
frontage will be 150 feet. This criterion will be met.
C. Front Yard. The front yard shall be a minimum of 50 feet from the existing street
right-of-way line or the ultimate street right of way as adopted on the
Comprehensive Plan or Official Map, except that any lot of record less than one
acre in size lawfully created prior to (effect date of this title) shall have a minimum
front yard of 30 feet.
D. Side Yard. There shall be a minimum side yard of 10 feet.
E. Rear Yard. There shall be a minimum rear yard of 50 feet.
F. Solar Setback. The solar setback shall be as prescribed in DCC 19.88.210.
FINDING: There are no existing structures on the subject property. Future houses and buildings
on these remaining lots will need to comply with the setback requirements of this section.
Solar setbacks as prescribed in DCC 19.88.210 apply to new or altered structures only; no new or
altered structures are proposed with this land division application, and therefore this section does
not apply to this land division application.
Chapter 19.72, Flood Plain Combining Zone.
Section 19.72.020. Application of FP Zone.
A. The FP Combining Zone shall apply to the area identified on the Flood Insurance
Rate Map (FIRM) as special flood hazard areas inundated by 100 year flood and
f/oodway areas. The FIA Flood Insurance Study for Bend and the FIRM map are
hereby adopted and by this reference included herein. The A and AE zones shown
on the FIRM map are hereby zoned FP.
FINDING: Staff notes that a portion of the subject property is located within the Flood Plain
Combining Zone, therefore the provisions of this chapter apply to the proposed project.
247-19-000913-LL, 19-914-TP Page 57 of 67
Flood Plain Combining Zone on Subject Property
B. When base flood elevation data has not been provided on the FIRM, the Planning
Director shall obtain, review and reasonably utilize any base flood elevation and
f/oodway data available from a federal, state or other source in order to administer
DCC 19.72.020.
C. Information to be obtained and maintained.
1. Where base flood elevation data is provided through the Flood Insurance
Study or as required in DCC 19.72.020(B), record the actual elevation (in
relation to mean sea level) of the lowest floor (including basement) of all
new or substantially improved structures and whether or not the structure
contains a basement.
2. For all new or substantially improved flood proofed structures, record the
actual elevation (in relation to mean sea level) of the structure's lowest
floor. Obtain and maintain the flood proofing certifications required in DCC
19.72.070(B).
FINDING: Base flood elevation data has been provided on the FIRM.
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Section 19.72.040. Alteration of Watercourses.
A. Prior to any alteration or relocation of a watercourse, notice of the proposed
alteration shall be given to affected, adjacent communities and the State
Department of Water Resources and evidence of such notification submitted to the
Federal Insurance Administration.
B. The applicant shall maintain the altered or relocated portion of said watercourse
so that the flood carrying capacity is not diminished.
FINDING: No alteration of a watercourse is proposed under the current application.
Section 19 72 050 Permit for Use or Development in an FP Zone.
No development shall occur in an FP Zone unless a permit has been received for the work.
Except for improvement of an existing structure which is less than substantial, as
determined by the County, no permit shall be issued unless the work will be reasonably
safe from flooding, and otherwise complies with this title. All necessary state, federal and
local permits will be obtained as a condition of approval on any permit in an FP Zone. The
following information shall be submitted with the permit application:
A. The location of the property with reference to channel locations and flood profile
elevations.
B. The existing topography and proposed grading plan for the property. Contour
intervals shall not be more than one foot forground slopes up to five percent and,
for areas i►:1►►lediately adjacent to a stream, two foot for ground slopes between.
five and 10 percent and five foot for greater slopes.
C. The location of existing and proposed diking or revetments, if any.
D. Review of building permits. Where elevation data is not available either through
the Flood Insurance Study or from another authoritative source, applications for
building permits shall be reviewed to assure that proposed construction will be
reasonably safe from flooding.
FINDING: While a small portion of the subject property is included in the Flood Plain Combining
Zone, no portion of the proposed subdivision development will affect the Flood Plain area of the
site. All areas of the subject property which are affected by the Flood Plain Combining Zone are
located at the base of the Deschutes River canyon, approximately 210 feet below the nearest
potential building sites. Additionally, any future physical development of the property which will
affect the Flood Plain will be subject to the standards outlined above.
Section 19 72 090 Land Development Standards in a Flood Hazard Area.
No development shall occur in an FP Zone unless a permit has been received for the work.
Except for improvement of an existing structure which is less than substantial, as
determined by the County, no permit shall be issued unless the work will be reasonably
safe from flooding, and otherwise complies with this title. All necessary state, federal and
247-19-000913-LL, 19-914-TP Page 59 of 67
local permits will be obtained as a condition of approval on any permit in an FP Zone. The
following information shall be submitted with the permit application:
A. In addition to the terms of DCC 19.72.070 and 19.72.080, a subdivision or other land
development, including all utility facilities, within an FP zone shall be designed and
constructed to minimize flood damage, including special provisions for adequate
drainage to reduce exposure to flood hazards.
B. A land development which will alter or relocate a watercourse shall be designed,
constructed and maintained to retain the flood -carrying capacity of the
watercourse.
C. A proposed land development of greater than either 50 lots or five acres shall
include data showing the base flood elevation.
FINDING: As stated above, while a small portion of the subject property is included in the Flood
Plain Combining Zone, no portion of the proposed subdivision development will affect the Flood
Plain area of the site. All areas of the subject property which are affected by the Flood Plain
Combining Zone are located at the base of the Deschutes River canyon, approximately 210 feet
below the nearest potential building sites. Additionally, the submitted tentative plan includes data
showing the base flood elevation for the Deschutes River adjacent to the subject property.
Chapter 19.76, Site Plan Review.
Section 19.76.090, Deschutes River Corridor Design Review.
The following uses are permitted:
A. Purpose. It is the purpose of the Deschutes River Corridor Design Review to ensure
compliance with the objectives of DCC Title 19 and the goals and policies relating
to the Deschutes River in the Bend Area General Plan. The purpose shall also be to:
1. Recognize and respect the unusual natural beauty and character of the
Deschutes River.
2. Conserve and enhance the existing riparian zone along the Deschutes River.
3. Allow the community flexibility in reviewing development proposals within
the Areas of Special Interest that are designated on the Bend Area General
Plan.
4. Maintain the scenic quality of the canyon and rimrock areas of the
Deschutes River.
5. Conserve and enhance property values.
In considering a Design Plan the Bend Urban Area Planning Commission shall
take into account the impact of the proposed development on nearby
properties, on the capacity of the street system, on land values and
development potential of the area, and on the appearance of the street and
community.
B. The following areas and uses are exempt from the Deschutes River Design Review
process:
1. Public streets and utility facilities existing as of the date of adoption of DCC
Title 19. Notwithstanding anything to the contrary in DCC Title 19, a
247-19-000913-LL, 19-914-TP Page 60 of 67
variance maybe granted to the mandatory 40 foot setback for future public
streets and utility facilities.
2. Irrigation facilities, canals and flumes existing as of the date of adoption of
DCC Title 19.
C. Design Review Procedure. All new development, structures, additions and exterior
alterations to structures, including outside storage and off-street parking lots
within the Deschutes River Corridor, are subject to a Design Review process.
FINDING: A portion of the subject property is located within the Deschutes River Corridor.
However, staff notes that while a portion of the subject property is located within this area, the
proposed application is for a series of property line adjustments and a 10-lot residential
subdivision. As such, no "new development, structures, additions and exterior alterations to
structures, including outside storage and off-street parking lots" are proposed on the subject
property. For these reasons, the Hearings Officer finds that this proposed tentative plan project is
not subject to a Design Review Process.
Regarding future development, though, the Nyes, contend that DCC 19.76.090 requires Design
Review for any lot partially within the Deschutes River Corridor. On the other hand, the Applicant's
attorney contends such review is only required for improvements constructed within 100 feet of
the high water mark.
DCC 19.04 defines "Deschutes River Corridor" as "all property within 100 feet of the ordinary high
.,k _ f the Deschutes River. '11he or Jig -,ter.. k;gk %A—f �- mnrL chnll kn nc rJofinorl in nrr,
water mark UI the LJCJII IUICJ fIIVCI . I I IC vl un lal y 111 11 vvuLci 111ui m
19.04.040." The interpretations provided by the Nyes and the Applicant as noted both seem
reasonable. Ultimately, though, the Code provides the necessary context in which to interpret
whether only land within 100 feet of the ordinary highwater mark is subject to design review, or
whether property that is at least partially within 100 feet of the ordinary high water mark is subject
to design review, even for improvements are more than 100 feet outside the high water mark.
The drafters' intent can be discerned by reading the whole of DCC 19.76.090. Subsection (D)
imposes minimum standards on development subject to design review in the Deschutes River
Corridor. One standard is the minimum setback. The minimum setback for buildings in the Corridor
is 100 feet from the ordinary high water mark. DCC 19.76.090(D)(1). If the design review only applies
to land within 100 feet of the ordinary high water mark, but development is prohibited within 100
feet of high water mark by the setback, the remaining development standards, including the
minimum standards and site and design review criteria, would be pointless since all development
would fall outside the Corridor as a result of the setback. In other words, the building height,
conservation, compatibility, and colors and materials provisions would never be implicated since
no development would occur within 100 feet of the high water marker pursuant to the setback.
The Hearings Officer does not believe that was the intent of the drafters.
Accordingly, the Hearings Officer agrees with the interpretation provided by the Nyes' attorney that
the design review under 19.76.090 should occur for any development that occurs on any lot
partially within the corridor.
247-19-000913-LL, 19-914-TP Page 61 of 67
With that interpretation in mind, the Hearings Officer finds any "new development, structures,
additions and exterior alterations to structures, including outside storage and off-street parking
lots" which are proposed on a lot that falls at least partially within 100 feet of the ordinary high
water mark is subject to the design review process. To ensure compliance future development
within the subdivision complies with the requirements of this criterion, the Hearings Officer adopts
the following condition of approval.
Future Development: Future development on lots 3, 4, 5, 6, 7, and 8 of the proposed subdivision
shall be subject to Site Plan review pursuant to DCC 19.76.090.
As noted above, the Hearings Officer finds both interpretations plausible. If this issue comes up on
appeal, the Board of County Commissioners may want to carefully analyze this provision and
provide further explanation as to how it interprets this code section.
IV. DECISIONS:
Lot Line Adjustment (247-19-000913-LL)
Based on the above Findings, the Hearings Officer APPROVES the lot line adjustment. This approval
is tentative and only confirms that the proposed adjustment meets the current zoning criteria
necessary for property line adjustments. All restrictions for these zones still apply to the subject
properties.
In order to obtain final approval:
1. Except as provided in ORS 92.060(7-9), the adjusted property lines shall be surveyed and
monumented by a registered professional land surveyor and a survey complying with ORS
209.250, shall be filed with the County Surveyor. A copy of the filed survey shall be
submitted to the Planning Division. Property line adjustments of properties each over
10 acres in size are not required to file a survey according to ORS 92.060(8).
2. New deeds, reflecting the new adjusted properties, shall be recorded with the Deschutes
County Clerk, and a copy of the recorded deeds shall be submitted to the Planning
Division. The adjustment deed shall contain the names of the parties, the description of
the adjusted line, references to original recorded documents and signatures of all parties
with proper acknowledgment.
A property line adjustment may have an effect on any completed septic site evaluations for
the properties involved. You may wish to check with the Environmental Soils Division
regarding this matter. A property line adjustment may also affect any water rights
appurtenant to your property. If you have a water right, you should contact your irrigation
district before the property line adjustment is surveyed
247-19-000913-LL, 19-914-TP Page 62 of 67
Other permits may be required. The applicant is responsible for obtaining any necessary
permits from the Deschutes County Building Division, the Deschutes County Environmental
Soils Division and the Deschutes County Road Department, as well as any required state and
federal permits.
Tentative Plan Approval (247-19-000914-TP)
Based on the above Findings, the Hearings Officer hereby APPROVES the tentative plan subject to
the following conditions of approval.
A. Approval: This approval is based upon the information submitted by the Applicant. Any
substantial change will require a new application.
B. Final Plat: The final plat shall be prepared in accordance with Title 17 of the Deschutes
County Code.
C. Property Line Adjustments: Prior to final plat approval, all conditions of the property line
adjustment approved in Deschutes County file number 247-19-000913-LL shall be satisfied.
D. Site Evaluation: The 10 residential lots shall obtain septic site evaluation approval prior to
final plat approval.
E. Conformer to Tentative Plan: Prior to final plat approval, the subdivision final plat shall
f_ _ �_.... 4•^,l c,..,....•�,....'fM +4.,. f th., t�ntnt — nlnn fnr tha cf fhrlivicinn a�
Ue In substantial col Iluo I I Illy with I U e pr ovisioi1S of U Ic LK;I ILUUvc NIUI f f of a fc auvufv�..nvi �, u
approved.
F. Explanations: Prior to final plat approval, explanations for all common improvements
required as conditions of approval of the tentative plan of the subdivision shall be recorded
and referenced on the subdivision plat.
G. Domestic Water Supply Statement: Prior to final plat approval, the Applicant shall provide
Deschutes County with a statement that no domestic water supply facility will be provided
to the purchaser of any lot depicted in the proposed subdivision plat, even though a
domestic water supply source may exist. A copy of any such statement, signed by the
subdivider and endorsed by the city or county, shall be filed by the subdivider with the Real
Estate Commissioner and shall be included by the commissioner in any public report made
for the subdivision under ORS 92.385 (Examination). If the making of a public report has
been waived or the subdivision is otherwise exempt under the Oregon Subdivision Control
Law, the subdivider shall deliver a copy of the statement to each prospective purchaser of
a lot in the subdivision at or prior to the signing by the purchaser of the first written
agreement for the sale of the lot. The subdivider shall take a signed receipt from the
purchaser upon delivery of such a statement, shall immediately send a copy of the receipt
to the commissioner and shall keep any such receipt on file in this state, subject to
inspection by the commissioner, for a period of three years after the date the receipt is
taken.
247-19-000913-LL, 19-914-TP Page 63 of 67
H. Sewage Disposal Statement: Prior to final plat approval, a statement that no sewage
disposal facility will be provided to the purchaser of any lot depicted in the proposed
subdivision plat, where the Department of Environmental Quality has approved the
proposed method alternative or other method of sewage disposal for the subdivision in its
evaluation report described in ORS 454.755(I)(b). A copy of any such statement, signed by
Applicant and indorsed by Deschutes County shall be filed by the Applicant with the Oregon
Real Estate Commissioner and shall be included by the commissioner in the public report
made for the subdivision under ORS 92.385. If the making of a public report has been
waived or the subdivision is otherwise exempt under the Oregon Subdivision Control Law,
Applicant shall comply with the applicable provisions of ORS 92.090(5)(c).
I. Irrigation District Certification: Prior to final plat approval, Applicant shall submit to
Deschutes County a certification from Swalley Irrigation District that the subdivision is either
entirely excluded from the District, or is included within the District for purposes of receiving
services and subjecting the subdivision to the fees and other charges of the District.
J. Easements of Record: Prior to final plat approval, all easements of record or existing
rights of way shall be noted on the final plat pursuant DCC 1724.060(E), (F), and (H).
K. Road Plans: Prior to construction of public road improvements, the Applicant shall
submit road improvement plans to Road Department for approval prior to commencement
of construction pursuant to DCC 17.40.020 and 17.48.060. The roads shall be designed to
the minimum standard for a local road within a subdivision pursuant to 17.48.160 and
17,49A, Rnari imprnVement plan-, shall be prepared in accordance with all applicable
sections of DCC 17.48.
L. Final Improvement Plans: Prior to construction of public road improvements, the
Applicant shall submit final improvement plans with all required approval signatures to
Road Department.
M. Road Improvements: Prior to final plat approval, the Applicant shall complete road
improvements according to the approved plans and all applicable sections of DCC 17.48.
Improvements shall be constructed under the inspection of a register professional engineer
consistent with ORS 92.097 and DCC 17.40.040. Upon completion of road improvements,
applicant shall provide a letter from the engineer certifying that the improvements were
constructed in accordance with the approved plans and all applicable sections of DCC 17.48.
N. Road Maintenance: Maintenance of all public roads within the subdivision shall be assigned
to a home owners association by covenant pursuant to DCC 17.16.040, 17.16.105,
17.48.160(A), and 17.48.180(E). Applicant shall submit covenant to Road Department for
review and shall record covenant with the County Clerk upon Road Department approval. A
copy of the recorded covenant shall be submitted to the Community Development
Department prior to final plat approval. Further, the final plat signature sheet shall include
the following note:
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PUBLIC ROAD MAINTENANCE: THE OWNERS AND TENANTS OF LOTS
PLATTED BY THIS INSTRUMENT ARE HEREBY ASSIGNED TO MAINTAIN AND
REPAIR ALL PUBLIC ROADS CREATED BY THIS INSTRUMENT IN GOOD ORDER
UNTIL SUCH TIME AS A UNIT OF FEDERAL, STATE, OR LOCAL GOVERNMENT
OR A SPECIAL DISTRICT FORMALLY ACCEPTS MAINTENANCE RESPONSIBILITY
FOR SAID PUBLIC ROADS ACCORDING TO APPLICABLE LAWS.
O. Location of Roads: At the time of final plat submittal, the surveyor or engineer preparing
the plat shall, on behalf of Applicant, submit information showing the location of the existing
roads in relationship to the rights of way to Deschutes County Road Department. This
information can be submitted on a worksheet and does not necessarily have to be on the
final plat. All existing road facilities and new road improvements are to be located within
legally established or dedicated rights of way. In no case shall a road improvement be
located outside of a dedicated road right of way. If research reveals that inadequate right
of way exists or that the existing roadway is outside of the legally established or dedicated
right of way, additional right of way will be dedicated as directed by Deschutes County Road
Department to meet the applicable requirements of DCC Title 17 or other County road
standards.
P. As -Constructed Plans: Prior to final plat approval, the Applicant shall submit as -
constructed improvement plans to Road Department pursuant to DCC 17.24.070(E)(1).
Q. Water Rights: A statement of water rights shall be included on the final subdivision plat.
R. No Lot Sales: No lots to be created by this tentative plan application shall be sold prior to
recordation of the final plat with the Deschutes County Clerk.
S. Fire Department Requirements: The Applicant shall meet the requirements set forth by the
Bend Fire Department in their comments reprinted on pages 7 and 8 of this Decision. Fire
Department approval shall be evidenced by subdivision letter submitted to Deschutes
County Planning prior to final plat approval confirming conformance with applicable fire
safety regulations.
T. Subdivision Name: Prior to final plat approval, the subdivision name shall be approved by
the Deschutes County Surveyor.
U. Road Dedication: Prior to final plat approval, roads for public use shall be dedicated
without any reservation or restriction other than reversionary rights upon vacation of any
such street or road and easements for public or private utilities.
V. Utility Easements: Prior to final plat approval, all required utility easements shall be
shown on the final plat. Easements shall be provided along property lines when necessary
for the placement of overhead or underground utilities, and to provide the subdivision or
partition with electric power, communication facilities, street lighting, sewer lines, water
lines, gas lines or drainage. Such easements shall be labeled "Public Utility Easement" on
247-19-000913-LL, 19-914-TP Page 65 of 67
the tentative and final plat; they shall be at least 12 feet in width and centered on lot lines
where possible, except utility pole guyline easements along the rear of lots or parcels
adjacent to unsubdivided land may be reduced to 10 feet in width.
W. Grading and Filling: Gradin : Grading of building sites shall conform to the following
standards, unless physical conditions demonstrate the property of other standards:
A. Cut slope ratios shall not exceed one foot vertically to one and one half feet
horizontally.
B. Fill slope ratios shall not exceed one foot vertically to two feet horizontally.
C. The composition of soil for fill and the characteristics of lots and parcels made
usable by fill shall be suitable for the purpose intended.
D. When filling or grading is contemplated by the subdivider, he shall submit
plans showing existing and finished grades for the approval of the Community
Development Director. In reviewing these plans, the Community Development
Director shall consider the need for drainage and effect of filling on adjacent
property. Grading shall be finished in such a manner as not to create steep banks or
unsightly areas to adjacent property.
X. Park District Annexation: The applicant shall sign an annexation agreement with Bend
Metro Park and Recreation District and submit a copy of the agreement to the Planning
Division prior to final plat approval.
Y. Cul-de-Sacs: All required cul-de-sac bulbs shown on the final tentative plan shall meet the
requirements -f r rr 17 AQ 1 A01M
%J vim.._. I I .-rv. 1 ....N. J.
Z. Drainage: Prior to final plat approval, the Applicant shall provide certification by a licensed
professional engineer that any drainage facilities have been designed and constructed to
receive and/or transport at least a design storm as defined in the current Central Oregon
Stormwater Manual created by Central Oregon Intergovernmental Council and all surface
drainage water coming to and/or passing through the development or roadway. All
drainage features and designs shall comply with DCC 17.48.190.
AA. Continuing Obligation: All references to Applicant in this approval, including conditions, also
refers to any successor in interest of Applicant's rights (including development rights) in the
Subject Property. The intent of this approval is to assure the County that anyone claiming
rights under this approval is to be bound by the terms and conditions set forth herein.
BB. Street Names: All roads shall be named in conformance with the provisions of the
Deschutes County uniform road naming system set forth in DCC Title 16. Except for
extensions of existing streets, no street name shall be used which will duplicate or be
confused with the name of an existing street in a nearby city or in the County. Street names
and numbers shall conform to the established pattern in the County and shall require
approval from the County Property Address Coordinator.
CC. Driveway Approach: Prior to the issuance of building permits on each lot, a driveway
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approach permit shall be obtained for each approach to the continuation of Pacific Heights
Road or Juniper Rim Loop.
DD. Deed Restrictions: Prior to selling any lots, the Applicant shall record deed restrictions in
substantially the same form as outlined above and subject to the modification and
amendments required by the Hearings Officer, including the County's ability to enforce the
deed restrictions.
EE. Design Review: Future development on lots 3, 4, 5, 6, 7, and 8 of the proposed subdivision
shall be subject to Site Plan review pursuant to DCC 19.76.090.
FF. Access to Tax Lot 502: Prior to selling any lots in the subdivision, the Applicant shall
execute an easement in substantially the same form as attached to the letter from Ms.
Cooper dated July 7, 2020, as Item 4 prior to recording the final plat. The easement shall be
recorded as soon as is reasonably practical after the final plat is recorded.
GG. Access to Tax Lot 601: Prior to selling any lots in the subdivision, the Applicant shall
execute an easement in substantially the same form as attached to the letter from Ms.
Cooper dated July 7, 2020, as Item 5 prior to recording the final plat. The easement shall be
recorded as soon as is reasonably practical after the final plat is recorded.
Other permits may be required. The Applicant is responsible for obtaining any necessary
permits from the Deschutes County Building Division, the Deschutes County Environmental
Sjoill . Division nmA thn Deschutes County Road Department as well a5 anv required state and
JVlli Division Department, �'
federal permits.
VI. DURATION OF APPROVAL:
This tentative plan approval shall be void after two years from the date this decision becomes final,
unless the final plat has been submitted to the Planning Division for final approval within that time
period, an extension is sought under DCC 22.36.010, or the preliminary plat approval has been
initiated as defined in DCC 22.36.020.
This decision becomes final twelve (12) days after the date of mailing, unless appealed by a
party of interest.
Will Van Vactor, Hearings Officer
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