2020-420-Minutes for Meeting December 09,2020 Recorded 12/22/2020Recorded in Deschutes County CJ2020-420
Nancy Blankenship, County Clerk
Commissioners' .journal 12/22/2020 9:34:34 AM
�TEs
C oG
o, �{ BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541)388-6570
10:00 AM
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FOR RECORDING STAMP ONLY
BOCC MEETING MINUTES
Wednesday, December 9, 2020 BARNES & SAWYER ROOMS
VIRTUAL MEETING PLATFORM
Present were Commissioners Patti Adair, Anthony DeBone, and Phil Henderson. Also present were
Tom Anderson, County Administrator, David Doyle, County Counsel (via Zoom conference call), and
Samantha Pepper, BOCC Administrative Assistant (via Zoom conference call). Attendance vvas limited
due to Governor's Virus Orders.
This meeting was audio and video recorded and can be accessed at the Deschutes County
Meeting Portal website http://deschutescountyor.igm2.com/Citizens/Default.aspx
CALL TO ORDER: Chair Adair called the meeting to order at 10:00 a.m.
PLEDGE OF ALLEGIANCE:
CITIZEN INPUT:
CONSENT AGENDA: Before the Board was Consideration of Approval of the
Consent Agenda.
DEBONE: Move approval of Consent Agenda
HENDERSON: Second
VOTE: DEBONE: Yes
BOCC MEETING DECEMBER 9, 2020 PAGE 1 OF 6
HENDERSON: Yes
ADAIR:. Chair votes yes. Motion Carried
1. Consideration of Board Signature to Appoint Jim Becker to the Panoramic
Access Special Road District
2. Consideration of Board Signature to Appoint John Carrigg to the Pinewood
Country Estates Special Road District
3. Consideration of Board Signature to Reappoint Mark Davis to the Spring
River Special Road District
4. Consideration of Board Signature to Reappoint Diana Leith to the Deschutes
River Recreation Homesites Special Road District #6
S. Consideration of Board Signature to Appoint Duane Brolin to the Deschutes
River Recreation Homesites Special Road District #6
6. Consideration of Board Signature to Reappoint Pamela Ferguson to the
Newberry Estates Special Road District
7. Approval of Minutes of the November 23, 2020 BOCC Meeting
8. Approval of Minutes of the November 25, 2020 BOCC Meeting
ACTION ITEIVIc:
9. COVID UPDATE
County Health Director Dr. George Conway updates Commissioners on
recent COVID19 statistics. He mentions that there have been several cases
involving children. Many of the counties in Oregon are in the "extreme risk
category." Dr. Conway stresses the importance of wearing a face mask.
Commissioner Adair asked Dr. Conway to look into the mortality rates of
people in the younger age groups. St. Charles Senior Data Scientist Michael
Johnson updates Commissioners on St. Charles patient data. The hospital
has 39 people in the hospital related to COVID19. There has been 7-14
discharges a day for the last week. Commissioner Adair asked if Johnson was
familiar with the use of Melatonin (at the Cleveland Clinic) as a medication for
COVID patients. Mr. Johnson was unaware but will check. The average
length of stay for someone not in ICU is 4.3 days and 14 days with someone
who is in ICU. 7 patients were in ICU and 5 were on ventilator at last check in
yesterday. The hospital is at 86% capacity. Commissioner Adair asked if the
new tower is being used. Commissioner Henderson asked if there is data to
BOCC MEETING DECEMBER 9, 2020 PAGE 2 OF 6
the age of people in the hospital now and if people are coming from other
counties. The average age of persons in the system with COVID19 is 55.
People that have passed away average age 72. Elective surgeries have been
postponed. Commissioner Henderson asked why cases have gone up in the
recent weeks. Johnson states that the holidays, cold weather and gathering
have caused this spike. 39 people are currently in the hospital- 3 are from
out of state, 30 were tri-county area patients and 6 are from other
neighboring counties. Commissioner Henderson asked how health care
workers in the hospital are doing. There are concerns for safety regarding
COVID. Justin Sivill with Summit BMC reports that they are testing more than
a thousand people each week now. 4.5 % positive rate last week.
Commissioner Henderson asked who is getting tested. Mr. Sivill states that
everyone (all age demographics) are getting tested. BMC has set up drive
thru testing at their clinic and can now test hundreds of people each day.
10.CARES Act Funding Update
r ^.,nr" r-hiof Mnnnrinl r)ffirar rrAa AAi inn i inriata(z r r)mmiccinnarc nn CARFS
funding allocations. Commissioner Adair asked about reducing amounts for
Mosaic Medical. Dr. Conway adds that he has been in contact with Mosaic
and the AVID testing and funding should be used by the end of December.
The Board agrees to re -allocate an additional $50,000 for rental assistance.
The Board will discuss further re -allocations next week. Munn mentions that
the business assistance funds could be received by the County and pushed
out to COIC by Friday, or certainly by next Tuesday.
11.CONSIDERATION OF FIRST & SECOND READING: Ordinance No. 2020- 005,
Amending/Enacting Identified Sections of Deschutes County Code
County Counsel Dave Doyle requests first and second reading and
emergency adoption of Ordinance No. 2020- 005.
HENDERSON: Move first and second reading of Ordinance No. 2020-
BOCC MEETING DECEMBER 9, 2020 PAGE 3 OF 6
005.
DEBONE: Second
VOTE: HENDERSON: Yes
DEBONE: Yes
ADAIR: Chair votes yes. Motion Carried
DEBONE: Move emergency adoption (effective 1 /1 /21) of Ordinance
No. 2020- 005.
HENDERSON: Second
VOTE: DEBONE: Yes
HENDERSON: Yes
ADAIR: Chair votes yes. Motion Carried
12.CONSIDERATION OF FIRST & SECOND READING: Ordinance No. 2020- 015,
Repealing Title n? - Personnel of the Deschutes County Cede and
Creating HR Personnel Rules
County Counsel Dave Doyle requests first and second reading and
emergency adoption of Ordinance No. 2020-015.
DEBONE: Move first and second reading of Ordinance No. 2020-
015.
HENDERSON: Second
VOTE: DEBONE: Yes
HENDERSON: Yes
ADAIR: Chair votes yes. Motion Carried
HENDERSON: Move emergency adoption (effective 1/1/21) of
Ordinance No. 2020-015.
DEBONE: Second
BOCC MEETING DECEMBER 9, 2020 PAGE 4 OF 6
VOTE: HENDERSON: Yes
DEBONE: Yes
ADAIR: Chair votes yes. Motion Carried
13.DELIBERATION: the Applicants Request a Property Line Adjustment and
a Tentative Plan Approval to Establish a 10-Lot Subdivision in the UAR10
Zone at 19800 Pacific Heights Road
Associate Planner Kyle Collins presents the application/appeal for a property
line adjustment and tentative plan approval on Pacific Heights Road. One of
the key issues is the Road Maintenance. Commissioner Henderson states his
concern trying to figure this problem out after the fact. Commissioner
DeBone states that this issue is a private matter between neighbors. There
are questions about what county road standards are. County Assistant Legal
Counsel Adam Smith states that county roads need to be maintained but the
standards vary. Planning Manager Peter Gutowsky mentions some possible
options outside this application to help the other parties with their needs.
agree that this Is not thin pr(1pPr rh;4 npl tQ a(i(irPC-, the road
maintenance issue. The other matter at hand is the design standards of the
Deschutes Corridor. Commissioner DeBone agrees that only lots 4, 5 and 6
would need the high watermark setback. Design review would only be
required for these lots and only if in the corridor. Hearings officer decision to
be amended to lots 4, 5 and 6 and the Planning Director would be the review
authority. Mr. Collins will bring back a draft decision next week.
Being no further items to come before the Board, the meeting was adjourned at 1:13 PM.
BOCC MEETING DECEMBER 9, 2020 PAGE 5 OF 6
DATED this Day of k�JM&2020 for the Deschutes County Board of
Commissioners.
-1-26'
Ai ADAIR, CAR
ATTEST:
F�
BOCC MEETING DECEMBER 9, 2020 PAGE 6 OF 6
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - www.deschutes.org
BOCC MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
10:00 AM, WEDNESDAY, DECEMBER 9, 2020
Barnes Sawyer Rooms - Deschutes Services Center - 1300 NW Wall Street - Bend
This meeting is open to the public, usually streamed live online and video recorded. To watch it online, visit
www. desch utes. org/meetings.
Pursuant to ORS 192.640, this agenda includes a list of the main topics that are anticipated to be considered or
discussed. This notice does not limit the Board's ability to address other topics.
Item start times are estimated and subject to change without notice.
CALL TO ORDER
MEETING FORMAT
In response to the COVID-19 public health emergency, Oregon Governor Kate Brown issued Executive Order
20-16 directing government entities to utilize virtual meetings whenever possible and to take necessary
measures to facilitate public participation in these virtual meetings.
Beginning on May 4, 2020, meetings and hearings of the Deschutes County Board of Commissioners will be
conducted in a virtual format. Attendance/Participation options include:
Live Stream Video: Members of the public may still view the BOCC meetings/hearings in real time via the
Public Meeting Portal at www.deschutes.org/meetings.
Citizen Input: Citizen Input is invited in order to provide the public with an opportunity to comment on any
meeting topic that is not on the current agenda. Citizen Input is provided by submitting an email to:
citizeninlut(@deschutes.org or by leaving a voice message at 541-385-1734. Citizen input received before
the start of the meeting will be included in the meeting record.
Zoom Meeting Information: Staff and citizens that are presenting agenda items to the Board for
consideration or who are planning to testify in a scheduled public hearing may participate via Zoom
meeting. The Zoom meeting id and password will be included in either the public hearing materials or
through a meeting invite once your agenda item has been included on the agenda. Upon entering the
Zoom meeting, you will automatically be placed on hold and in the waiting room. Once you are ready to
Board of Commissioners BOCC Meeting Agenda Wednesday, December 9, 2020 Page 1
of 4
present your agenda item, you will be unmuted and placed in the spotlight for your presentation. If you are
providing testimony during a hearing, you will be placed in the waiting room until the time of testimony,
staff will announce your name and unmute your connection to be invited for testimony. Detailed
instructions will be included in the public hearing materials and will be announced at the outset of the
public hearing.
PLEDGE OF ALLEGIANCE
CITIZEN INPUT (for items not on this Agenda)
[Note: Because COVID-19 restrictions may limit or preclude in person attendance, citizen input comments
may be emailed to citizen input@deschutes.org or you may leave a brief voicemail at 541.385.1734. To be
timely, citizen input must be received by 9:00am on the day of the meeting.]
CONSENT AGENDA
1. Consideration of Board Signature to Appointjim Becker to the Panoramic Access
Special Road District
2. Consideration of Board Signature to Appointjohn Carrigg to the Pinewood Country
Estates Special Road District
3. Consideration of Board Signature to Reappoint Mark Davis to the Spring River
Special Road District
4. Consideration of Board Signature to Reappoint Diana Leith to the Deschutes River
Recreation Homesites Special Road District #6
5. Consideration of Board Signature to Appoint Duane Brolin to the Deschutes River
Recreation Homesites Special Road District #6
6. Consideration of Board Signature to Reappoint Pamela Ferguson to the Newberry
Estates Special Road District
7. Approval of Minutes of the November 23, 2020 BOCC Meeting
8. Approal of Minutes of the November 25, 2020 BOCC Meeting
ACTION ITEMS
9. 10:05 AM COVID19 Update
Board of Commissioners BOCC Meeting Agenda Wednesday, December 9, 2020 Page 2
of 4
10. 10:35 AM CARES Act Funding Update
11. 10:55 AM CONSIDERATION OF FIRST & SECOND READING: Ordinance No. 2020-
005, Amending/Enacting Identified Sections of Deschutes County Code
- David Doyle, Legal Counsel
12. 11:00 AM CONSIDERATION OF FIRST & SECOND READING: Ordinance No. 2020-
015, Repealing Title 03 - Personnel of the Deschutes County Code and
Creating HR Personnel Rules - David Doyle, Legal Counsel
13. 11:05 AM DELIBERATION: the Applicants Request a Property Line Adjustment
and a Tentative Plan Approval to Establish a 10-Lot Subdivision in the
UAR10 Zone at 19800 Pacific Heights Road - Kyle Collins, Associate
Planner
LUNCH RECESS
OTHER ITEMS
These can be any items not included on the agenda that the Commissioners wish to discuss as part of
the meeting, pursuant to ORS 192.640.
EXECUTIVE SESSION
At any time during the meeting, an executive session could be called to address issues relating to ORS
192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor
negotiations; ORS 192.660(2)(b), personnel issues, or other executive session categories.
Executive sessions are closed to the public, however, with few exceptions and under specific guidelines,
are open to the media.
F 21 " ,
To watch this meeting on line, go to: www.deschutes.org/meetings
Please note that the video will not show up until recording begins. You can also view past
meetings on video by selecting the date shown on the website calendar.
Board of Commissioners BOCC Meeting Agenda Wednesday, December 9, 2020 Page 3
of 4
Deschutes County encourages persons with disabilities to participate in all programs
and activities. This event/location is accessible to people with disabilities. If you need
accommodations to make participation possible, please call (541) 617-4747.
FUTURE MEETINGS:
Additional meeting dates available at www.deschutes.org/meetingcalendar
(Please note: Meeting dates and times are subject to change. All meetings take place in the Board of
Commissioners' meeting rooms at 1300 NW Wall St, Bend, unless otherwise indicated. If you have questions
regarding a meeting, please call 388-6572.)
Board of Commissioners BOCC Meeting Agenda Wednesday, December 9, 2020 Page 4
of 4
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2
o Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners BOCC Wednesday Meeting of December 9, 2020
DATE: December 2, 2020
FROM: Kyle Collins, Community Development, 541-383-4427
TITLE OF AGENDA ITEM:
DELIBERATION: the Applicants Request a Property Line Adjustment and a Tentative Plan
Approval to Establish a 10-Lot Subdivision in the UAR10 Zone at 19800 Pacific Heights
Road
The Applicants, Scott and Carol Ann Smallwood, have requested two property line adjustments to
increase the size of the subject property to 100.1 acres. Concurrent with the property line
adjustments, the Applicants requested a tentative plan approval for a 10-lot subdivision.
This matter was referred to a public hearing on june 30, 2020 and Deschutes County Hearings
Officer Will Van Vactor rendered a final decision approving the Applicant's request for a property
line adjustment and a 10-lot subdivision in the UAR10 Zone on August 14, 2020.
The Applicants subsequently appealed the Hearings Officer's decision and the Board conducted a
public hearing in this matter on November 9, 2020.
MEMORANDUM
TO: Board of County Commissioners
FROM: Kyle Collins, Associate Planner
DATE: December 2, 2020
RE: Deliberations for an Appeal of a 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 deliberations on December 9, 2020 for an
appeal of a Hearings Officer decision (File Nos. 247-19-000913-LL, 247-19-000914-TP) approving a
Property Line Adjustment and a 10-lot Subdivision in the UAR10 Zone.
I. BACKGROUND
The property subject to this application is located approximately 0.6 miles northwest of the City of
Bend. The specific location is noted in the following table:
Map Number & Tax Lot
Address
17-12-07, 501
119800 Pacific Heights Road, Bend, OR 97703
The Applicants, Scott and Carol Ann Smallwood, have requested two property line adjustments to
increase the size of the subject property to 100.1 acres. Concurrent with the property line
adjustments, the Applicants requested a tentative plan approval for a 10-lot subdivision.
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 currently undeveloped and has a
vegetative cover of juniper trees, sagebrush, and other native vegetation. The site is primarily level,
with a large 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 OB Riley Road. A private airstrip identified on Deschutes County
Zoning Maps is located in the central portion of the property.
11 7 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
Q, (541)388-6575 @a cdd@deschutes.org @www,deschutes.org/cd
This matter was referred to a public hearing on June 30, 2020 and Deschutes County Hearings
Officer Will Van Vactor rendered a final decision approving the Applicant's request for a property
line adjustment and a 10-lot subdivision in the UAR10 Zone on August 14, 2020.
The Applicants subsequently appealed the Hearings Officer's decision and the Board conducted a
public hearing in this matter on November 9, 2020. The record is presently closed, following post -
hearing open record periods.
II. KEY ISSUES
The Board is asked to deliberate and decide on the several matters. This deliberation summary of
party positions is largely composed staffs attempt to summarize relevant party positions, with some
direct quotes from record materials. These positions have been edited for brevity, clarity, or issue
focus., Staff focuses, below, on key issues and interpretative matters, in order to receive Board
direction for the drafting of a decision in this case. Staff notes that the full scope of interested party
positions can be found within the record materials and attachments to this memo.
1. Should the Deschutes River Corridor Design Review, as identified in DCC 19.76.090 apply
to the subject development?
Hearings Officer: DCC 19.04 defines "Deschutes River Corridor" as "all property within 100 feet of
the ordinary high water mark of the Deschutes River. The ordinary high water mark shall be as
defined in DCC 19.04.040." It was initially unclear to the Deschutes County Hearings Officer whether
nnhi Innrl Within inn foot of thin nrrliniry hiuhmintar mark is ciihiart to riesiun rPviPw- nr WhPthP_r
property that is at least partially within 100 feet of the ordinary high water mark is subject to design
review, even for improvements that are more than 100 feet outside the high water mark.
The Hearings Officer ultimately found that the code 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, including minimum setbacks. The minimum setback
for buildings in the Corridor is 100 feet from the ordinary high water mark (DCC 19.76.090(D)(1)).
The Hearings Officer found that 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 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.
With that interpretation in mind, the Hearings Officer found that 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 for future development
within the subdivision, the Hearings Officer adopted the following condition of approval.
247-19-000913-LL, 19-914-TP Page 2 of 7
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.
Opponents: Michael McGean, a representative of property owners in the surrounding area
(Danielle and Sanders Nye) believe that the original Hearings Officer decision is correct and should
be upheld by the Board. The opponents argue that the Deschutes River Corridor Design Review
should be read in the context of DCC 19.76.090, which states that the purpose of the review is to
ensure compliance with policies relating to the Deschutes River, and to "Maintain the scenic quality
of the canyon and rimrock areas of the Deschutes River," among other factors. The opponents
contend that allowing the applicant to define where the river corridor and rimrock is and then assert
that no construction will occur within it to avoid any site plan review does not complywith the broad
policies of the ordinance.
Applicant: The Applicants' contest the interpretation of DCC 19.76.090 made above bythe Hearings
Officer. The Applicants' argue that the Hearings Officer's interpretation above is not justified by the
plain language of the code. Instead, the Applicants claim the Hearings Officer redrafts the code to
require such design review if any portion of a lot to be developed is within the Deschutes River
Corridor, regardless of how big the lot is, regardless of how far it extends away from the River, and
regardless of how far away the proposed development is to occur.
Additionally, the Applicants contend that the Hearings Officer's justification for the interpretation
above is mistaken for the following reasons:
Thn A —inn rn%An%At nrnrnec ctill 7nnlioc in t\A/n citi intinnc'
Ic U%=—)151 I 1 CViCvv N. Vl.I — Jan. mlal— .a ... ...... .... �...... ....... ....
1) When an applicant can justify constructing improvements closer to the River than 100
feet; and
2) When a parcel is within the Deschutes River Corridor, but not within the land that is
subject to the 100 foot setback, as specified in DCC 19.76.090(D)(1)(a) and (b)
Specifically, the Applicants point out that DCC 19.76.090 states that the 100 feet setback applies
"unless the applicant can demonstrated that a lesser setback is warranted, due to lot size and shape,
topography, preservation of natural vegetation, view corridors, and subject to the criteria in DCC
19.76.090(E)." In other words, the Applicants claim that the site and design review criteria under
DCC 19.76.090(E) specifically apply if the applicant has requested a lesser setback than 100 feet.
In addition, the Applicant notes that the section of the code on the 100-foot setback only applies to
specific parcels of land in the Deschutes River Corridor (see DCC 19.76.090(D)(1)(a) and (b)). The
Applicants contend that this code provision recognizes there are other parcels of land in the County
that might be partially located within the Deschutes River Corridor (i.e., within 100 feet of the high
water mark of the River), but that are not subject to the 100 foot setback in this section. In this
instance, the site and design review criteria of DCC 19.76.090(E) would apply to those portions of
land as well. As such, the Applicants contend that the Hearings Officer is mistaken in thinking that
the Applicant's reading of the plain language of the code creates an inconsistency within the code.
247-19-000913-LL, 19-914-TP Page 3 of 7
Finally, while the Applicants do not believe that the County can impose design review beyond the
100-foot Deschutes River Corridor, they ask that if the County insists on retaining the Hearings
Officer's findings on this, they request that the Board please note the November 15, 2020, letter
from the project's engineer, Keith D'Agostino. In that letter, Mr. D'Agostino states that only parts of
Lots 4, 5, and 6 are within the Deschutes River Corridor. The Applicants contend that even under
the Hearings Officer's interpretation, the letter serves to show that only lots 4, 5, and 6 would be
subject to design review. That is important because Condition EE to the Hearings Officer's decision
would impose design review upon development on Lots 3, 4, 5, 6, 7, and 8, even though the
Applicants claim that no part of Lots 3, 7, and 8 is within the Corridor.
The Applicants request that the Board of Commissioners reverse the Hearings Officer decision with
respect to included Condition EE, and find that the Design Review process and criteria of DCC
19.76.090 only apply to development within the Deschutes River Corridor, i.e., development within
100 feet of the high water mark of the Deschutes River. Thus, the Applicants request that the Board
of Commissioners either remove Condition EE altogether, or adopt the following condition in its
place:
EE. Design Review. For future development on Lots 4, 5, and 6 of the proposed subdivision, any
portion of development that is proposed to be located within the Deschutes River Corridor, as
defined in DCC 19.04.040, will be subject to Site Plan review pursuant to DCC 19.76.090.
Staff: While the Applicants contend that the reading of DCC 19.76.090 "recognizes there are other
parcels of land in the County that might be partially located within the Deschutes River Corridor (i.e.,
tniithin l nn foot of tho high Iniator ma rl- of thin Rivarl hi & that nra NC1T ci ihi nrt to thin 1 nn font cathark
.. ...... ... ...... „ ..... .. ..,.. .,.. .. ...... ........�...... .... ...
in this section," it is unclear to staff where these additional properties may occur. At this time, Staff
believes that the only exceptions to the 100-foot setback distance from the Deschutes River in Title
19 Zoning Areas are those parcels which have been granted an exemption pursuant to DCC
19.76.090(D)(1).
2. Should road maintenance responsibilities for Pacific Heights Road and the proposed
-juniper Rim Loop be clarified through this application?
Issue: DCC 17.16.105(A) requires the following:
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;
During the public hearing process before the Deschutes County Hearings Officer, it was made aware
to staff that Pacific Heights Road, a neighboring right-of-way which provides access to the subject
property is maintained by a road maintenance agreement upheld by the Pacific Cascade Heights
homeowners association (HOA). That maintenance agreement contains language which would
allow the HOA to terminate their road maintenance responsibilities if property owners outside the
247-19-000913-LL, 19-914-TP Page 4 of 7
Pacific Cascade Heights subdivision begin to utilize Pacific Heights Road for access to adjacent
properties.
Hearings Officer: The Deschutes County Hearings officer found that the road access provision
specifically requires 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, the Hearings Officer found it is undisputed that Pacific
Heights road is a public road. The Hearings Officer found that it is 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 in fact accessed by a public road with maintenance responsibility assigned to a
homeowners association (Pacific Cascade Heights).
Opponents: Liz Fancher, a representative of neighboring property owners to the south of the
subject property (Elkins Family Revocable Trust) raised concerns regarding future maintenance
responsibilities for Pacific Heights Road, Juniper Rim Loop, and any adjacent rights -of -way which
might be affected by the subject development.
Specifically, Liz Fancher has posed three questions to the Board regarding road maintenance
responsibilities in a memo to the record dated November 23, 2020. Those questions are
summarized as follows:
1) Does the Board agree that residents of the PCH subdivision are not obligated to maintain
PCH subdivision roads?
2) Are future owners of Smallwood lots obligated to maintain roads in their own subdivision
and to sign a maintenance agreement or covenant to assure road maintenance?
3) Should residents of the Smallwood Subdivision be required to maintain PCH subdivision
roads if the PCH HOA opts out of road maintenance duties as a result of use of Pacific Heights
Road by Smallwood?
These questions have been raised principally in concern that Liz Fancher's clients (Elkins Family
Revocable Trust) may be liable for any future road maintenance costs should the Pacific Cascade
Heights HOA elect to terminate their road maintenance responsibilities and should the Smallwood
subdivision include similar termination provisions in their required road maintenance covenant
should the present subdivision application be approved. The full scope of Liz Fancher's arguments
can be found in the previously referenced memo.
Staff: While staff understands the concerns raised by Liz Fancher regarding future road
maintenance responsibilities, staff does not believe that the present applicant is the appropriate
venue for resolution of these topics. Staff outlined a full scope of this position in a memo to the
record dated November 16, 2020. Staff's position is summarized as follows:
247-19-000913-LL, 19-914-TP Page 5 of 7
1) DCC 17.16.105, the primary code provision applicable in this instance, has been met as the
subject property is currently "accessed by roads constructed to County standards and by
roads... with maintenance responsibility... assigned to landowners or homeowners
association by covenant or agreement." In this case, the subject property is currently
accessed by Pacific Heights Road, which is maintained pursuant to a maintenance covenant
signed by the Pacific Cascade Heights HOA. This was confirmed through the Hearings
Officer's decision and has not be challenged at any point in the record.
2) Should the subject proposal be approved, staff notes that the matter of the Smallwood's
road maintenance obligations for proposed Juniper Rim Loop and a small extension of
Pacific Heights Road has already been addressed within the Hearings Officer's decision.
Specifically, that decision, unless altered by the Board, contains the following condition of
approval:
"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:
PUBLIC ROAD MAINTENANCE: THE OWNERS AND TENANTS OF LOTS PLATTED BY THIS
Ir.iSTRi INAPKIT ARE HEREBY ASSIGNED TO MAINTAIN AND REPAIR Al I PUBI IC 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."
3) The Deschutes County Engineer, Cody Smith, submitted a letter to the record dated
November 10, 2020, which specifically addresses the "termination clause" in the Pacific
Cascade Heights maintenance covenant. Cody Smith points out that the original
maintenance covenant associated with Pacific Heights Road, including the termination
clause, was not made in error, and the Road Department acknowledged its inclusion when
reviewing the Pacific Cascade Heights final plat. Staff does acknowledge that while the
termination of the maintenance covenant by the Pacific Cascade Heights HOA may
constitute a violation of the original tentative plan file no. TP-11-1016, which separately
obligates the HOA to maintain the road, staff notes that particular scenario is not under
consideration in the subject review as the maintenance covenant is still active. Resolution
of those items would need to be pursued through a separate land use action if the HOA in
fact ever unilaterally terminates the maintenance covenant.
4) Should Liz Fancher or the Elkins Revocable Family Trust require resolution to the remaining
road maintenance questions outlined above, the correct avenue for resolving those issues
is in one of the following ways:
247-19-000913-LL, 19-914-TP Page 6 of 7
1) The Elkins Family Revocable Trust can apply for a Declaratory Ruling application to
provide clarity on the status of the maintenance obligations as they relate to Pacific
Heights Road moving forward.
2) The Elkins Family Revocable Trust can apply for a Tentative Plan approval to subdivide
their neighboring parcels, at which point the matter of road maintenance obligations
could be adjudicated as part of that review.
5) Finally, staff believes all other matters regarding specific road maintenance duties for
property owners within this area should be addressed as a private matter between all
parties involved to arrive at an amenable solution. Resolution of these road maintenance
concerns does not require County intervention at this point, as none of the users of this
road are precluded from addressing the situation privately.
To summarize, the broader policy issues raised by Liz Fancher are more complex and surround
questions regarding who should be held liable for rural infrastructure maintenance and by what
legal mechanism should that responsibility should be assigned.
However, for the purposes of the present tentative plan review, the County is only required to
confirm that legal access to the subject property is currently being provided on public roads with
assigned maintenance responsibilities. Again, compliance with the standards of DCC 17.16.105
has been confirmed by the Hearings Officer's final decision and the existence of the Pacific
Cascade Heights HOA road maintenance covenant.
III. 1S0--DAY LAND USE CLOCK
The 150-day period for issuance of a final local decision is currently December 31, 2020.
Attachments:
Document Item No.
2020-11-30 - L Cooper Comments 6
2020-11-23 - L Fancher Comments 5
2020-11-16 - BOCC Road Access Staff Memo 4
2020-11-15 - K D'Agostino Comments 3
2020-11-13 - M McGean Comments 2
2020-11-10 - C Smith (Road Dept.) Comments 1
247-19-000913-LL, 19-914-TP Page 7 of 7
BRIX I LAW
November 30, 2020
Deschutes County Board of Commissioners
C/o Kyle Collins, Association Planner
kvle.collins(a)deschutes.orq
Re: File Nos. 247-19-000913-LL and 247-19-000914-TP
Dear Board of Commissioners:
This firm represents Scott and Carol Ann Smallwood, the "Applicant" and Appellant pursuant
to the above -referenced applications, and the owners of the subject property. Please accept
this letter on behalf of the Applicant/Appellant as their "final argument".
As discussed at the hearing on November 9, and in our prior submittals, the Hearings
Officer improperly engaged in statutory interpretation to change the plain language of the
County's code. As outlined before, there is no inconsistency in the code and no need to
interpret it to say something other than what it says. Design review is to apply to
development within the 100-foot Deschutes River Corridor. DCC 19.76.090 does have a
100-foot setback, but the setback only applies to specified areas in the County (and
therefore, not to others), and the setback does not apply when an applicant can justify an
exception. Thus, in the two cases when the 100-foot setback does not apply, design review
would apply. Therefore, there is no inconsistency in the code and no need to rewrite it, as
the Hearings Officer did.
In the definitive Oregon case on statutory interpretation, PGE v. Bureau of Labor and
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111UUJIJ IQJ, VJ7 r.GU aF 11_w k1 J,u.v.yaJ. F.m.,-. ,..._ U U.— ...,
rule of statutory interpretation is the plain language of the statute in question. As the Court
notes (quoting ORS 174.010 and other case law), the decision -maker is "not to insert what
has been omitted, or to omit what has been inserted", and is to give words in the statute
"their plain, natural, and ordinary meaning."
Thus, where the code is clear, as is the case here (Deschutes River Corridor is defined as
the land within 100 feet of the high water mark of the Deschutes River, and design review is
applicable to development "within" the Corridor), there is no need, and the Hearings Officer
had no right, to change the plain meaning of the code.
Thus, design review on the Smallwood property should only apply to development within
100 feet of the high water mark of the River, and should not apply to any development
further away from the River.
This conclusion is bolstered by the fact that a defined area (100 feet back) for design review
makes a lot more sense than an arbitrary and changeable definition (size and configuration
of land). Under the Hearings Officer's re -drafting of the statute, there would be no
consistency as to the applicability of design review. Under his interpretation, design review
would not apply to a property whose boundary is 101 feet from the River, but would apply
to construction that is a mile or more from the River if the parcel on which it is located were
big enough. A defined area, such as the 100-foot Corridor, is also consistent with other
provisions in the code, such as design review in the Landscape Management zone.
We understand that the County is concerned about preserving the property along the River
rim, but re -writing County code must be done through the right process - a legislative
{00146322;1}
update to the County's code. And in any case, the Smallwoods share this concern and that's
why they have voluntarily agreed to significant additional restrictions on the property (draft
deed restriction language), which the County can enforce, and which cannot be changed
without the County's approval. In addition, the property is subject to the design review
process administered by Oregon Parks and Recreation Department, which imposes
significant restrictions to protect views, rimrock, and other natural features.
Finally, while we do not believe that the County can impose design review beyond the 100-
foot Deschutes River Corridor, we ask that if the County insists on retaining the Hearings
Officer's findings on this, please note the November 15, 2020, letter from the project's
engineer, Keith D'Agostino. In that letter, Mr. D'Agostino points out that only parts of Lots
4, 5, and 6 are within the Deschutes River Corridor. That means that even under the HO's
interpretation, only lots 4, 5, and 6 would be subject to design review. That is important
because Condition EE to the Hearings Officer's decision would impose design review upon
development on Lots 3, 4, 5, 6, 7, and 8, even though no part of Lots 3, 7, and 8 is
within the Corridor. Even the Hearings Officer's own decision does not permit that.
For the reasons set forth herein and in the Applicant's other submissions and at the hearing,
the Applicant respectfully requests that the Board of Commissioners reverse the Hearings
Officer with respect to Condition EE, and find that the Design Review process and criteria of
DCC 19.76.090 only apply to development within the Deschutes River Corridor, i.e.,
development within 100 feet of the high water mark of the Deschutes River. Thus, the
Applicant/Appellant requests that the Board of Commissioners either remove Condition EE
altogether, or adopt the following:
EE. Design Review. For future development on Lots 4, 5, and 6 of the
proposed subdivision, any portion of development that is proposed to be
Inratari ........ _..- ---- _--- - - -- - - - - - -
be subject to Site Plan review pursuant to DCC 19.76.090.
Sincerely,
,L.Q.� (.?Aa dQ
Laura Craska Cooper v
i00146322;11
LIZ FANCREIR, ArroIRNEY
November 23, 2020
BOARD OF COMMISSIONERS
C/O KYLE COLLINS
DESCHUTES COUNTY CDD
117 NW LAFAYETTE AVENUE
BEND, OR 97703
Re: 247-19-000914-TP and 247-19-00913-LL
Smallwood/Juniper Rim Subdivision
I am writing on behalf of the Edward J. Elkins, Doris E. Elkins and Elkins Family
Revocable Trust (hereinafter `Elkins") to respond to evidence and arguments presented
during the first post -hearing comment period.
Post -Hearing Comments from County Engineer
Deschutes County Engineer Cody Smith submitted arguments and evidence regarding
Pacific Cascade Heights Road and its associated Maintenance Covenant. In those
comments, we learned from Mr. Smith that, regarding the PCH HOA road maintenance
covenant:
"Road Department acknowledged and did not take issue with the
termination provision. "
Additional comments offered by Mr. Smith state that even with a Maintenance Covenant
in place:
"No Par is legally obligated to maintain the public roads within Pacific
Cascade Heights. The public roads within the Pacific Cascade Heights
subdivision are local access roads. Pursuant to ORS 368.031, the County
is not liable to keep local access roads in repair, making it difficult to
burden another entity with that liability. Similarly, we cannot effectively
obligate an entity to actually maintain a public road without adopting a
minimum maintenance standard. It is also important to note that covenants
such as these can often be amended or terminated without any land use
approval. *** The intent of the requirement to record an instrument
assigning road maintenance responsibilities for public roads within a
subdivision to the owners of the subdivision is to provide a clear indication
to those owners and their successors in interest that the identified public
— 2 — November 23, 2020
roads are not maintained and operated by Deschutes County. " [emphasis
added]
Mr. Smith's comments are well-informed and thoughtful. We agree with a number of his
observations. We note, however, that Mr. Smith's position about maintenance agreements
and covenants is a major change from the County's prior position on the issue. We
therefore believe it is imperative that the Board weigh in on and settle the issue.
I have included, as an attachment, three questions about the road maintenance issue. The
questions are followed by quotations of the varying answers that have been provided by
County staff in the review of this application and the PCH subdivision application. I have
done so to substantiate my claim that there are conflicts that should be resolved by the
Board.
The Elkins believe that Mr. Smith's well-informed and thoughtful analysis deserves serious
consideration. If the Board agrees with Mr. Smith, the Elkins ask the Board to find that the
maintenance covenants required by the County code are legally sufficient, for purposes of
complying with DCC 17.16.105 and other road maintenance provisions of Title 17 if they
do what Mr. Smith says they are intended to do: (1) inform lot owners that subdivision and
access roads to subdivision will not be maintained by the County; and (2) that road
maintenance, if any, must be funded by property owners.
Post -Hearing Comments from Kyle Collins, Associate Planner
In the event the Board does not agree with its County Engineer, the Elkins ask that the
Board offer guidance to County staff, subdividers and the public about the meaning of DCC
17.16.105(A). This can be accomplished by adopting the following finding:
"Road maintenance responsibility for all roads in Pacific Cascade Heights subdivision
was assigned to the PCH HOA by covenant accepted by the Deschutes County Road
Department. This is all that is required by DCC 17.16.105 (A) which says:
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;
As the assignment of responsibility has occurred, it is immaterial whether the PCH
HOA elects, as allowed by its Maintenance Covenant, to discontinue maintaining
PCH roads in the future."
— 3 — November 23, 2020
The addition of this finding is simple. It will strengthen the subdivision approval making
it less likely that LUBA will remand the decision, if it is appealed by PCH owners who
participated in the hearings officer's review of the application.
The Elkins believe that approval of the Maintenance Covenant with an "opt out" clause
was a mistake. My comment that it was erroneous to include the clause in the Covenant is
not "factually inaccurate" as claimed by Mr. Collins. Mr. Smith has advised the Board that
the Road Department knew about the clause and did not object to it. In our view, a
Maintenance Covenant with opt out clause does not comply with Condition 14 of the PCH
subdivision approval and it was a mistake for the County to accept the covenant. Condition
14 requires:
14. The applicant shall be responsible for the maintenance of both Gopher Gulch Road
(Pacific Heights Road) and Northern Estates Lane on their property as a result of
this application. The applicant shall record a Road Maintenance Agreement with
the County Clerk outlining the Maintenance responsibilities of these roads. The
agreement shall be reviewed and approved by the Road Department prior to
recording the plat.
The decision to allow the PCH HOA to "opt out" of the maintenance covenant if the road
was used by Elkins or Smallwood was made during final plat review of the PCH — when
the Elkins had no opportunity to object because the review occurs without public
participation or notice. The negative impact to Elkins will be significant if the covenant is
terminated and the County's subdivision ordinance is interpreted to require Elkins alone to
r- '- ^ _ -' r--_..i-_--_r_.. _rn__ c�___..n_____a nrrr __a r.�I_._� �..�-,....._
maintain Pacifc Heights Road for the DGIIGIIL of Uhe Jlllall Wall U, rl,n [I.11l1 t.11i111J-P1VfJGl Ly
as a condition of approval of a subdivision of the Elkins property. As a result, we ask that
the Board adopt the findings we have suggested.
We understand that the Board is not required to reach the road maintenance issue but
believe that Board guidance to its staff is needed so that all are on the same page in the
future. This issue will likely recur in future subdivision applications throughout the County
because Title 17 applies to the entire unincorporated area of Deschutes County. Resolving
the issue now, therefore, will confer a broad public benefit.
Response to Comments from Michael McGean
Michael McGean filed comments on behalf of Danielle and Sanders Nye. Mr. McGean
quotes the text of the County's Deschutes River Corridor code. It unambiguously says that
DRC review is required for development "within the Deschutes River Corridor."
[emphasis added]. DCC 17.76.090. The subdivision application filed by the Smallwoods
does not propose development in the Deschutes River Corridor. Therefore, DRC site plan
review is not required.
The hearings officer mistakenly believed that the 100-foot DRC setback prohibited all
development within 100 feet of the river's OHWM and, therefore, was meaningless unless
applied to land outside of the 100-foot wide Deschutes River Corridor. The hearings officer
— 4 — November 23, 2020
erred by failing to read the part of the code that allows approval of development within
100' of the OHWM of river if approved by the Planning Commission (now staff). This fact
was clearly established by the Smallwood's attorney, Laura Cooper.
Given his misunderstanding of the code, the hearings officer revised its plain language to
require review of development "outside the Deschutes River Corridor" instead of "inside
the corridor" while purporting to interpret it. The hearings officer removed the words
"within the Deschutes River Corridor" and inserted the words "outside the Deschutes River
Corridor on land that is, in part, located within the Deschutes River Corridor" to the code.
This violates the general rule of construction provided by ORS 174.010. ORS 174.010
says that decisionmakers, when construing the law, are to "ascertain and declare what is,
in terms of substance, contained therein, not to insert what has been omitted or to omit
what has been inserted." Given the fact that the County code is crystal clear and applies to
development in the DRC only, it is was not appropriate for the hearings officer to amend
the code under the guise of interpretation to authorize design review on lands outside of
the DRC. State a Richards, 370 P3d 874, 277 Or App 128, aff'd 361 Or 840, 401 P3d 767
(2016) (where a law's plain meaning is unambiguous it should be followed to give effect
to the intent of the legislature).
Mr. McGean acknowledges that development may occur in the DRC but, nonetheless, asks
the Board to rewrite the DRC rules because "design review would never occur as a practical
matter" because setback exceptions are "rare and exceptional." To the extent that this
statement is intended to indicate that the approval of an exception is unlikely or nearly
impossible to obtain, we disagree. Title 19 allows development within 100 feet of the
review if approved by the Planning Commission under standards that are not impossible to
meet. Additionally, DRC review rules apply in both the City of Bend and Deschutes
County. The City imposes lesser setbacks of 30 feet, and 40 feet and 100 feet. As a result,
the code initially adopted by both jurisdictions as a whole clearly does not apply in rare
and exceptional circumstances only.
Procedural Issues
Thank you for your valuable time and consideration of our request. It is our understanding
that the record will close on November 23, 2020 and that, thereafter, only the applicant will
be able to offer new legal arguments about the issues raised in this letter. We respectfully
request that if County staff wishes to make new legal arguments or respond to this letter,
that the Elkins be allowed an opportunity to respond.
Sincerely,
l iz Fancher
Liz Faucher
Enc - 3
2465 NW SACAGAWEA LANE • BEND, OREGON • 97703
PHONE: 541-385-3067
QUESTION ONE
Does the Board agree that residents of the PCH subdivision are not obligated to maintain PCH
subdivision roads?
Comments Answering Yes (No Road Maintenance Required)
Cody Smith, County Engineer, November 10, 2020
"No party is legally obligated to maintain the public roads within Pacific Cascade Heights. The
public roads within the Pacific Cascade Heights subdivision are local access roads. *** The
intent of the requirement to record an instrument assigning road maintenance responsibilities for
public roads within a subdivision to the owners of the subdivision is to provide a clear indication
to those owners and their successors in interest that the identified public roads are not
maintained and operated by Deschutes County [not to actually require that the roads be
maintained]. "
Comments Answering Yes (PCH HOA responsible for maintaining PCH public roads)
Tentative Plan Subdivision Approval for PCH (Will Groves), p. 21
"Since the County imposed a moratorium on the acceptance ofany new local roads into the County
maintenance system, the applicant shall record a Road Maintenance Agreement with the County
Clerk outlining the maintenance responsibilities of these roads. "
Condition 14 of the PCH Tentative Plan Approval, p. 24
"The applicant shall be responsible for the maintenance of both Gopher Gulch Road (Pacific
Heights Drive) and Northern Estates Lane on their property as a result of this application. The
applicant shall record a Road Maintenance Agreement with the County Clerk outlining the
Maintenance responsibilities of these roads. "
Page 1 — Questions re Maintenance Covenant (Smallwood/Juniper Rim Subdivision)
QUESTION TWO
Are future owners of Smallwood lots obligated to maintain roads in their own subdivision and
to sign a maintenance agreement or covenant to assure road maintenance?
Comments Answering Yes
County staff has, on many occasions, said that future owners in the Smallwood subdivision must
maintain public access roads in their subdivisions. Hearings Officer Van Vactor imposed this
obligation on future owners of lots in the Smallwood Subdivision.
Road Department (Cody Smith), Smallwood Staff Report p. 6
" "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).
* * * [T(he 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 INSTR UMENT 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. "
Planning Division (Kyle Collins), Smallwood Staff Report pp. 19-20
"As noted in the Road Department comments, an agreement is necessary to ensure maintenance
of subdivision roads. For this reason, staff asks that any approval of the subdivision be subject to
a condition requiring an agreement for road maintenance. "
Comments Supporting the Answer No, Qualified
The following comment by Cody Smith, County Engineer dated November 10, 2020 — by logical
extension from PCH to Smallwood — supports a finding that the Smallwoods' maintenance
covenant need only tell future lot owners that the County will not maintain public local access
roads in their subdivision and the owners, not the County, will be responsible for road maintenance.
"No party is legally obligated to maintain the public roads within Pacific Cascade Heights. The
public roads within the Pacific Cascade Heights subdivision are local access roads. *** The
intent of the requirement to record an instrument assigning road maintenance responsibilities for
public roads within a subdivision to the owners of the subdivision is to provide a clear indication
to those owners and their successors in interest that the identified public roads are not
maintained and operated by Deschutes County [not to actually require that the roads be
maintained]. "
Page 2 — Questions re Maintenance Covenant (Smallwood/Juniper Rim Subdivision)
QUESTION THREE
Should residents of the Smallwood Subdivision be required to maintain PCH subdivision
roads if the PCH HOA opts out of road maintenance duties as a result of use of Pacific
Heights Road by Smallwood?
Comments Answering No
Hearings Officer Van Vactor, Smallwood Decision
"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). "
Cody Smith, County Engineer, November 10, 2020
"No par is legally obligated to maintain the public roads within Pacific Cascade Heights. The
public roads within the Pacific Cascade Heights subdivision are local access roads. *** The
intent of the requirement to record an instrument assigning road maintenance responsibilities for
public roads within a subdivision to the owners of the subdivision is to provide a clear indication
to those owners and their successors in interest that the identified public roads are not
maintained and operated by Deschutes County [not to actually require that the roads be
maintained]. "
Since PCH has signed the required Maintenance Covenant and is not legally obligated to
maintain Pacific Heights Drive and "no party" is legally obligated to maintain the road, neither
Smallwood nor Elkins should be asked to maintain the road if the PCH HOA "opts out."
Comments Answering Yes
Peter Russell, Deschutes County Senior Transportation Planner, p. 6, Smallwood Staff Report
"The property will be accessed via Pacific Heights Road, which is a public road not maintained
by Deschutes County ... *** The applicant [Smallwood] will need to ensure the roads serving the
subdivision [in PCH] are constructed to County standards as well as having a maintenance
agreement that complies with DCC 17.16.105. "
The Elkins are not advocating for either position but wish to know which position is correct. If
Mr. Smith's November 10, 2020 position is accepted, the Maintenance Covenant logically need
only state that road maintenance, if it is to occur, will be the responsibility of the subdivision HOA,
not the County. If this is the case, whether or not the PCH HOA opts out of its duty to maintain
the roads is irrelevant because the maintenance covenant has been recorded and it continues to
serve its function of advising PCH HOA property owners that the County will not be maintaining
PCH local access roads.
Page 3 — Questions re Maintenance Covenant (Smallwood/Juniper Rim Subdivision)
1
MEMORANDUM
TO: Board of County Commissioners
FROM: Kyle Collins, Associate Planner; Deschutes County Legal Department
DATE: November 16, 2020
RE: Road Access Requirements Related to a Tentative Plan Review for a 10-lot subdivision
in the Urban Area Reserve Zone (UAR10).
The Board of County Commissioners (Board) conducted a public hearing on November 9, 2020 to
hear an appeal of a Hearings Officer decision (File Nos. 247-19-000913-LL, 247-19-000914-TP)
approving a 10-lot subdivision in the UAR10 Zone.
i. BAC'riuRvIV' NDU
The property subject to this application is located approximately 0.6 miles northwest of the City of
Bend. The specific location is noted in the following table:
Map Number & Tax Lot Address
17-12-07, 501 19800 Pacific Heights Road, Bend, OR 97703
The Applicants, Scott and Carol Ann Smallwood, have requested two property line adjustments to
increase the size of the subject property to 100.1 acres. Concurrent with the property line
adjustments, the Applicants requested a tentative plan approval for a 10-lot subdivision.
The property is accessed via Pacific Heights Road, a rural local right-of-way to the east, which
extends from OB Riley Road. Staff notes that Pacific Heights Road is a publicly accessible right-of-
way, which is not currently maintained by the County. The road was established pursuant to land
use file no. TP-11-1016, which created the Pacific Cascade Heights subdivision directly east of the
subject property. As a part of that previous land use decision, road maintenance responsibilities for
Pacific Heights Road were assigned to the homeowners association (HOA) for Pacific Cascade
Heights.
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
Q (541) 388-6575 @ cdd@deschutes .org @ www.deschutes.org/cd
II. HEARINGS OFFICER DECISION
Deschutes County Hearings Officer Will Van Vactor rendered a final decision approving the
Applicant's request for a property line adjustment and a 10-lot subdivision in the UAR10 Zone. A
primary point of contention raised during the initial public hearing and the BOCC public hearing
addressed the issue of road access to the subject property and road maintenance standards for
properties throughout the area.
The code provisions of DCC 17.16.105 require that a proposed subdivision be accessed by roads
constructed to County standards and by roads under one of three conditions. One of those
conditions, as described in DCC 17.16.105(A), 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. In the present case, the Hearings Officer found it is
undisputed that Pacific Heights Road is a public road. The Hearings Officer also found it is
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 HOA. Thus, the
proposed subdivision is accessed by a public road with maintenance responsibility assigned to a
homeowners association (Pacific Cascade Heights). All evidence in the record demonstrates
compliance with the criteria of DCC 17.16.105 as written.
III. APPEAL AND BOCC PUBLIC HEARING
The Applicants submitted a timely appeal of the Hearings Officer's final decision on August 26, 2020.
nj irina rho Rnrr ni ihlir hoarinu nrnrPPrlinus on November 9. 2020. an interested Darty
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representing a neighboring property owner to the south (Liz Fancher, representing Elkins Family
Revocable Trust) raised issues specifically related to DCC 17.16.105.
Liz Fancher's concerns relate to a "termination clause" included in the Pacific Cascade Heights HOA
road maintenance covenant. This clause states that the Pacific Cascade Heights HOA has the ability
to suspend road maintenance obligations should Pacific Heights Road begin providing access to any
parcel of land not included in the Pacific Cascade Heights subdivision. Liz Fancher made the
following arguments related to this road maintenance covenant:
1) That the termination clause was included erroneously as part of the recorded road
maintenance covenant pursuant to Final Plat Review for the Pacific Cascade Heights
subdivision development.
2) That the present applicants (the Smallwoods) may include a similar termination provision in
their required road maintenance covenant. This could theoretically have the effect of placing
road maintenance costs entirely on the Elkins Family Revocable Trust should those owners
pursue a subdivision development on neighboring properties at some point in the future.
IV. STAFF COMMENTS
Staff contests some of the arguments made above by interested party Liz Fancher, and outlines the
following issues:
247-19-000913-LL, 19-914-TP Page 2 of 5
Section 17.16.105. Access to Subdivisions
As outlined by the Hearings Officer in the initial public hearing, staff points out that the standards
of DCC 17.16.105 have in fact been met as required in code. Liz Fancher, the Elkins attorney
acknowledges this fact by stating:
'We believe the correct interpretation of DCC 17.16.105 is that it was satisfied in 2017 by the
filing of the PCH Maintenance Covenant. That covenant assigned maintenance responsibility to
the PCH HOA. This is all that was required by the code."
Staff points out that the maintenance covenant attributed to the Pacific Cascade Heights HOA has
not been terminated at present. As such, staff notes that Pacific Heights Road is in fact a "public
road with maintenance responsibility accepted by a unit of local or state government or assigned
to landowners or homeowners association by covenant" and thus the tentative plan proposed by
the Smallwoods complies with the standards of DCC 17.16.105. Staff believes that no additional
action or review is required by the Board of County Commissioners as it relates to DCC 17.16.105
and the subject proposal.
Error in County Review of Road Maintenance Covenant
After speaking with Cody Smith, the county engineer for the Deschutes County Road Department,
staff notes that the comments provided above by Liz Fancher regarding the erroneous inclusion of
the termination clause are factually inaccurate. In an email from Cody Smith dated November 10,
?n?n ha ctatP[ that the nriuinal maintenance covenant associated with Pacific Heights Road,
including the termination clause, was not made in error. While the termination of the maintenance
covenant by the Pacific Cascade Heights HOA may constitute a violation of the original tentative
plan file no. TP-11-1016, which separately obligates the HOA to maintain the road, staff notes that
particular scenario is not under consideration in the subject review as the maintenance covenant is
still active. Resolution of those items would need to be pursued through a separate land use action
if the HOA in fact ever unilaterally terminates the maintenance covenant.
In summary, Cody Smith provided the following comments:
"As I have previously indicated, no party is legally obligated to maintain the public roads within
Pacific Cascade Heights. The public roads within the Pacific Cascade Heights subdivision are local
access roads. Pursuant to ORS 368.031, the County is not liable to keep local access roads in
repair, making it difficult to burden another entity with that liability. Similarly, we cannot
effectively obligate an entity to actually maintain a public road without adopting a minimum
maintenance standard. It is also important to note that covenants such as these can often be
amended or terminated without any land use approval or legislation. The question of
determining whether or not amendment or termination of a covenant invalidates the land use
approval at issue is beyond the Road Department's scope of review."
247-19-000913-LL, 19-914-TP Page 3 of 5
Additional Recourse Options
While Liz Fancher has requested a resolution to the road maintenance issue as a part of the present
subdivision application, staff points out the Elkins Family Revocable Trust has additional and more
appropriate recourse options beyond the present application. These items could be resolved in the
following ways:
1) The Elkins Family Revocable Trust can apply for a Declaratory Ruling application to provide
clarity on the status of the maintenance obligations as they relate to Pacific Heights Road
moving forward.
2) The Elkins Family Revocable Trust can apply for a Tentative Plan approval to subdivide their
neighboring parcels, at which point the matter of road maintenance obligations could be
adjudicated as part of that review.
Private Matter
All other matters regarding specific road maintenance duties for property owners within this area
should be addressed as a private matter between all parties involved to arrive at an amenable
solution. Resolution of these road maintenance concerns does not require County intervention at
this point, as none of the users of this road are precluded from addressing the situation privately.
While staff acknowledges the possible financial burden associated with future road maintenance
that theoretically could be incurred by Liz Fancher's clients, staff points out that this situation would
nnly nm it if the fnIInwinu assumntions come to fruition:
1) The Elkins Family Revocable Trust elect to further develop their property and submit an
appropriate land use application,
2) The Pacific Cascade Heights HOA at some prior point terminates the aforementioned
maintenance covenant, and
3) Such a termination is determined to notviolate the Pacific Cascade Heights' original tentative
plan)
Staff points out that while possible, it is unclear if any of these actions would occur and the
appropriate venue for addressing this scenario is under a separate land use application at the
direction of Liz Fancher's clients. The broader policy issues are more complex and surround
questions regarding who should be held liable for rural infrastructure maintenance and by what
legal mechanism should that responsibility should be assigned.
For the purposes of the present tentative plan review, the County is only required to confirm that
legal access to the subject property is currently being provided on public roads with assigned
maintenance responsibilities. Compliance with the standards of DCC 17.16.105 has been confirmed
by the Hearings Officer's final decision and the existence of the Pacific Cascade Heights HOA road
maintenance covenant.
247-19-000913-LL, 19-914-TP Page 4 of 5
Attachments:
Document
2020-11-10 - C Smith (Road Dept) Comments
Item No.
247-19-000913-LL, 19-914-TP Page 5 of 5
Kyle Collins
From: Cody Smith
Sent: Tuesday, November 10, 2020 2:24 PM
To: Kyle Collins; Chris Doty
Cc: Adam Smith
Subject: RE: Road Maintenance Covenant Issues- 19800 Pacific Heights Road (URGENT)
Attachments: #8135467v6 PDX_ - Deschutes County Road Mtce Agr.docx
Kyle,
The Road Department reviewed the attached road maintenance covenant and determined that it met Condition of
Approval No. 14 for File No. TP-11-1016 within the Road Department's scope of review. Road Department staff
acknowledged and did not take issue with the termination provision. It is important to note that the initial submittal of
the road maintence covenant, which was prepared by Bend View Holdings 429 LLC's legal counsel, was formatted as a
road maintenance agreement, with Deschutes County proposed as a party to the agreement. After consulting County
Legal Counsel and senior staff with the Community Development Department, Road Department staff determined that
an agreement was an inappropriate method for the matter, as an agreement required at least two parties, and the
County would not be held under nor would we consider enforcing any obligations given in such an agreement. As I have
previously indicated, no party is legally obligated to maintain the public roads within Pacific Cascade Heights. The public
roads within the Pacific Cascade Heights subdivision are local access roads. Pursuant to ORS 368.031, the County is not
liable to keep local access roads in repair, making it difficult to burden another entity with that liability. Similarly, we
cannot effectively obligate an entity to actually maintain a public road without adopting a minimum maintenance
standard. It is also important to note that covenants such as these can often be amended or terminated without any
land use approval or legislation. The question of determining whether or not amendment or termination of a covenant
invaliriatpr the land ti-e annroval at issue is bevond the Road Department's scope of review.
The intent of the requirement to record an instrument assigning road maintenance responsibilities for public roads
within a proposed subdivision to the owners of the subdivision is to provide a clear indication to those owners and their
successors in interest that the identified public roads are not maintained and operated by Deschutes County. Prior Road
Department staff requested that these matters be addressed through a road maintenance agreement as the term
"agreement" is used in DCC 17.16.040 and was used in a previous version of DCC 17.16.105. Current Road Department
staff do not favor that approach regarding public road maintenance for the reasons stated above; our current approach
is to request that maintenance be assigned to property owners or their successors in interest by covenant, as that term
is used in DCC 17.16.040 and DCC 17.16.105 and in accordance with DCC 17.48.160(A), and a statement on the final plat
(which cannot be altered without land use approval or legislation).
Please let me know if further clarification is required.
Thank you,
Cody Smith, P.E. I County Engineer
61150 SE 27'" Street I Bend, Oregon 97702
Office: (541) 322-7113 1 Cell: (541) 699-8753
Email: Cody.Smith@deschutes.org
Website: www.deschutes.org/road
From: Kyle Collins <Kyle.Collins@deschutes.org>
Sent: Monday, November 09, 202012:30 PM
After recording return to:
Bend View Holdings 429 LLC
9310 NE Vancouver Mall Drive, Suite 200
Vancouver WA 98662
ROAD MAINTENANCE COVENANT
This Road Maintenance Covenant (this "Covenant") is made this day of
, 2017, by Bend View Holdings 429 LLC, a Washington limited liability company
("Declarant"), whose address is c/o Hawthorn Development LLC, 9310 NE Vancouver Mall
Drive, Suite 200, Vancouver, Washington 98662 for the benefit of the current and future owners
of the Pacific Cascade Heights Property, as defined below.
RECITALS
A. Declarant owns certain real property in Deschutes County, Oregon known
as Pacific Cascade Heights as per the final plat (the "Plat") recorded as
Document No. , Records of Deschutes County, Oregon
(the "Pacific Cascade Heights Property").
B. By that certain Deed of Dedication dated September 2, 2010 and recorded
on September 24, 2010 as Document No. 2010-37602, Declarant
dedicated a 60-foot wide strip of land across the Pacific Cascade Heights
Property to the public for roadway and utility purposes (the "2010
Dedication"). The 2010 Dedication was accepted by the Board of County
Commissioners of Deschutes County, Oregon.
C. As a condition to its approval of the Plat, Deschutes County requires that
the public road created by the 2010 Dedication be re -aligned across the
western part of the Pacific Cascade Heights Property, as shown on the site
plan attached hereto as Exhibit A and incorporated herein by this reference
(the "Site Plan"). The re -aligned public road will be called "Pacific
Heights Road." Pacific Heights Road, as re -aligned, has not yet been
formally dedicated to the public or accepted by Deschutes County.
D. The Plat also includes another road to be dedicated by Declarant, shown as
"Northern Estates Lane" on the Site Plan. Northern Estates Lane has not
I — ROAD MAINTENANCE AGREEMENT
IF " DOCVARIABLE "SWDocIDLocation" I" = "I" "Error! Unknown document property name.
yet been formally dedicated to the public or accepted by Deschutes
County.
E. Declarant desires to dedicate Pacific Heights Road and Northern Estates
Lane as shown on the Plat (the "Roads") to Deschutes County.
F. Deschutes County requires this Covenant and the License (as defined
below) as a condition to Deschutes County's approval of the dedication of
Pacific Heights Road and Northern Estates Lane.
G. Declarant intends that the Pacific Cascade Heights Property will be held,
sold, occupied, and conveyed subject to this Covenant, that this Covenant
will run with the land, and that this Covenant shall be binding on all
current and future owners of any portion of, or interest in the Pacific
Cascade Heights Property, including each future owner of a lot in the
subdivision created by the Plat (the "Pacific Cascade Heights
Subdivision").
COVENANT
NOW, THEREFORE, Declarant declares that the Pacific Cascade Heights Property is
hereby subjected to this Covenant, as follows:
1. Construction of Roads. Declarant will construct the Roads in accordance with
Deschutes County Road Standards and all applicable Legal Requirements (as definedbelow' ).
2. General Obligations. At their sole cost and expense, the owners of lots in the
Pacific Cascade Heights Subdivision (the "Owners") will improve, repair and maintain the Roads
in good condition and repair to (and consistent with) applicable Deschutes County Road
Standards and all other applicable Legal Requirements (the "Work"). Declarant shall be sole
Owner until the Pacific Cascade Heights Subdivision is filed and Declarant has conveyed any lot
therein to a third party. In connection with the Work, and without otherwise limiting the
generality of the immediately preceding sentence, the Owners will:
(a) Maintain the Roads in good, passable condition under all traffic and
weather conditions (including, without limitation, maintenance of appropriate drainage
facilities);
(b) Fill chuck holes, repair cracks, repair and resurface roadbeds, repair and
maintain drainage structures, remove debris, maintain signs, markers, striping, and any other
work necessary or appropriate to improve, maintain, repair, and preserve the Roads for all
weather road purposes; and
(c) If all or any part of either of the Roads becomes damaged or destroyed,
promptly repair and/or restore the same.
2 — ROAD MAINTENANCE COVENANT
IF " DOCVARIABLE "SWDocIDLocation" I" = "I" "Error! Unknown document property name.
3. Compliance with Legal Requirements. The Owners will perform the Work in
accordance with any and all applicable Legal Requirements and will obtain and maintain any and
all licenses, permits, registrations, and other governmental authorizations required to perform the
Work, including, without limitation, a permit for working in a public right of way from the City
of Bend or Deschutes County, whichever governing body then has jurisdiction. For purposes of
this Covenant, the term "Legal Requirements" means any and all applicable federal, state,
county, laws, rules, regulations, codes, and ordinances, including, without limitations, Deschutes
County Road Standards, all as now in force or which may hereafter be amended, adopted and/or
established.
4. Termination. Notwithstanding anything contained in this Covenant to the
contrary, this Covenant may be terminated (i) upon written notice from the Owners of more than
67% of the lots in the Pacific Cascade Heights Subdivision if either of the Roads is used to gain
access to real estate that is not part of the Pacific Cascade Heights Property without a road
maintenance agreement or covenant being in place that is satisfactory to the Owners of at least
67% of the lots in the Pacific Cascade Heights Subdivision, obligating the owners of the other
real estate or Deschutes County to share in the performance and costs of improvements, repair,
and maintenance of the Roads; (ii) upon annexation of all or any part of the Pacific Cascade
Heights Subdivision into the City of Bend or any other city, town, or municipality; and (iii) upon
the further subdivision, partition, or other property division or series of property divisions that
results in the existence of more than fourteen legal lots in the Pacific Cascade Heights Property.
Termination of this Covenant, regardless of how it occurs, will not relieve the Owners of any
obligations that have accrued before termination.
J . 1yiuscellaneo us.
5.1 Attorney Fees. In the event litigation or arbitration is instituted to enforce
or determine the parties' rights or duties arising out of the terms of the Covenant, the prevailing
party will recover from the losing party reasonable attorney fees incurred in such proceeding to
the extent permitted by the judge or arbitrator, in arbitration, at trial, on appeal, or in the
bankruptcy proceedings.
5.2 Amendment and Further Assurances. The Covenant may only be
amended by an instrument in writing recorded in the real property records of Deschutes County.
5.3 Governing Law and Entire Covenant. This Covenant will be governed by,
construed, and enforced in accordance with the laws of the State of Oregon and venue for any
action concerning this Covenant will be in Deschutes County, Oregon.
5.4 Notices. Unless otherwise specified in this Covenant, any notice required
under this Covenant must be in writing. Any notice will be deemed given when personally
delivered or delivered by facsimile transmission (with electron confirmation of delivery), or will
be deemed given three business days following delivery of the notice by U.S. mail, postage
prepaid, by the applicable parry to the address of the other party shown above (or any other
address that a party may designate by notice to the other party), unless that day is a Saturday,
Sunday, or legal holiday, in which event will be deemed delivered on the next following
3 — ROAD MAINTENANCE COVENANT
IF " DOCVARIABLE "SWDocIDLocation" 1" ="1" "Error! Unknown document property name.
business day. For any Owner other than Declarant, notices delivered to such Owner's address for
real property tax statements shall be sufficient.
5.5 Remedies. If a party fails to perform any of its terms, covenants,
conditions, or obligations under this Covenant, the non -defaulting party may, in addition to any
other remedy provided to the non -defaulting party under this Covenant, pursue any and all
remedies available to the non -defaulting party at law or in equity. All available remedies are
cumulative and may be exercised singularly or concurrently.
IN WITNESS WHEREOF, Declarant has caused this Covenant to be executed and
effective on the date first written above.
DECLARANT
Bend View Holdings 429, LLC
an Oregon limited liability company
By: Harvest Management Services Corp.
Its: Manager
itz
STATE OF OREGON )
)SS.
DESCHUTES COUNTY )
Barton G. Colson, President
The foregoing instrument was acknowledged before me this day of ,
2017, by Barton G. Colson, as President of Harvest Management Services Corp., the Manager of
Bend View Holdings 429, LLC.
Notary Public for Oregon
My Commission Expires:
4 — ROAD MAINTENANCE COVENANT
IF " DOCVARIABLE "SWDocIDLocation" I" = " I " "Error! Unknown document property name.
EXHIBIT A
Site Plan
END VIEW HOLDINGi42i-dC
t POINTS NORTH ESTATES
TENTATIVE PLAN
nr+P 'i� NoRrw-m
5 — ROAD MAINTENANCE COVENANT
IF " DOCVARIABLE "SWDocIDLocation" P = "I" "Error! Unknown document property name.
rffAgostino Parker, H._,C
CIVIL ENGINEERING / LAND SURVEYING / PLANNING / CONSTRUCTION SERVICES
November 15, 2020
Laura Craska Cooper
Brix Law LLP
15 SW Colorado Ave. Suite 3
Bend OR 97702
RE: Juniper Rim Subdivision, Tentative Subdivision (Deschutes County File #247-19-000914-TP)
Ms. Cooper:
In accordance with your request we have reviewed the proposed Tentative Subdivision Plan as approved
by Hearings Officer Decision (dated July 13, 2020), with respect to location relative to The Deschutes River
"ordinary high water mark" as stated in DCC 19.76.090.D.
DCC 18.76.090.D. refers to land within the "Deschutes River corridor", which is defined in DCC 19.04.040
as "all property within 100 feet of the ordinary high water mark of the Deschutes River. The ordinary high
water mark shall be as defined in DCC 19.04.040."
Applying these definition to the subject property, we find that no part of proposed lots 1 through 3
inclusive, and proposed lots 7 through 10 inclusive, lie within 100 feet of the Deschutes River ordinary
high water mark (setback zone). Therefore, no part of proposed lots 1, 2, 3, 7, 8, 9, and 10 lie within the
Deschutes River corridor.
Small portions of each of proposed Lots 4, 5, and 6 lie within the Deschutes River corridor as follows:
Lot 4: Just the extreme northwestern corner of proposed Lot 4 lies within 100 feet of the Deschutes River
ordinary high water mark. Thus, approximately 0.5 acres of the proposed 10 acre parcel lies within the
Deschutes River corridor. The rim of the Deschutes River canyon is at least 220 feet distant from the 100
foot Deschutes River corridor within proposed Lot 4.
Lot 5: The extreme western portion of proposed Lot 5 lies within 100 feet of the Deschutes River ordinary
high water mark. Thus, approximately 1.1 acres of the proposed 10 acre parcel lies within the Deschutes
River corridor. The rim of the Deschutes River canyon is at least 180 feet distant from the 100 foot
Deschutes River corridor within proposed Lot 5.
Lot 6: Just the extreme northwestern corner of proposed Lot 6 lies within 100 feet of the Deschutes River
ordinary high water mark. Thus, approximately 0.05 acres of the proposed 10 acre parcel lies within the
Deschutes River corridor. The rim of the Deschutes River canyon is at least 230 feet distant from the 100
foot Deschutes River corridor within proposed Lot 6.
Respectfully,
41aa paaoeo-q
Keith Dagostino PE PLS CWRE
61278 King Jeroboam Ave. P: (541) 693-4134
Bend, OR 97702
MARTIN E. HANSEN*
MICHAEL H. MCGEAN'°
CHRISTOPHER J. MANFREDI"'
ALISON A. HUYCKE
SARAN E. HARLOS
ADMITTED IN OREGON AND WASHINGTON
ADMITTED IN CALIFORNIA AND OREGON
...............
NANCis HANSEN & MARTIN LLP
ATTORNEYS AT LAW
1148 NW HILL STREET, BEND, OR 97703-1914
PHONE: 541-389-5010 - FAx: 541-382-7068
WWW.FRANCISHANSEN.COM
November 13, 2020
VIA EMAIL KYLE.COLLINSCa)-DESCHUTES.ORG;
Deschutes County Board of Commissioners
(Attn: Kyle Collins, Associate Planner)
Deschutes County Community Development
117 NW Lafayette Ave.
Bend, OR 97703
Re: Appeal of Scott and Carol Ann Smallwood
247-19-000913-LL; 247-19-914-TP
Dear Commissioners:
CRAIG K. EDWARDS
ALISON G. HOHENGARTEN
KYLE C. FLENIING
GREGORY N. THOMASON
C.E. "WIN" FRANCIS'
GERAI.D A. MARTIN°
'RETIRED
Our office represents Danielle and Sanders Nye, whose home lies across the Deschutes
River canyon from the property that is the subject of the two land use applications
referenced above. Mr. and Mrs. Nye provided comments during the public hearing that is
now on appeal. They did not object to the Smallwoods' property subdivision except to
point out that further site plan review would be required for those lots that lie within the
Deschutes River corridor before any structures are built. The County's Hearings Officer
agreed with the Nyes and required future Deschutes River Corridor Review as a condition
of approval of the subdevelopment.
The Hearings Officer made the correct decision and it should be affirmed. Under DCC
19.76.090(C), Deschutes River Corridor Design Review is required broadly before "All
new development ... within the Deschutes River Corridor." That ordinance should be
read in the context of the rest of DCC 19.76.090, which states that the purpose of the
review is to ensure compliance with policies relating to the Deschutes River, and to
"Maintain the scenic quality of the canyon and rimrock areas of the Deschutes River,"
among other factors. DCC 19.76.090(A). Allowing the applicant to define where the river
corridor and rimrock is and then assert that no construction will occur within it to avoid any
site plan review does not comply with the broad policies of the ordinance.
The Hearings Officer properly pointed out that the design review required by DCC
19.76.090 would never occur as a practical matter, so long as the applicant told the
county that the new development on parcels with the Corridor would be outside a 100-foot
setback. Since there is already a general 100 foot setback from the ordinary high water
Deschutes County Board of Commissioners
November 13, 2020
Page 2
mark, applicant's reading would render the other design standards and review criteria of
DCC 19.76.090 meaningless and unenforceable. The applicant's argument that those
criteria could still apply "when an applicant can justify constructing improvements closer to
the River than 100 feet" is a very unreasonable position --it would mean that all of the
Deschutes River Corridor Design Review ordinance was drafted only for the rare and
exceptional case of development that might be allowed closer than that 100 foot setback.
That would again place the applicant (and not the County) in the position of deciding
where that setback was in the first place and therefore whether site plan review was
necessary.
The Hearings Officer did not "change the language of the Code," as the applicant argues.
Instead, the Hearings Officer properly considered the text and the context of the relevant
code provisions to come up with the reasonable and plausible interpretation that the word
"property" in the definition of "Deschutes River Corridor" includes not just the part of the
property which falls within 100 feet of the ordinary high water mark, but the entie lot or
parcel. Accordingly, since six of the ten lots in this application lie within the Deschutes
River corridor review area, they should be subject to the design review condition as the
Hearings Officer concluded.
For these reasons, Mr. and Mrs. Nye ask that you please affirm the Hearings Officer
decision. Requiring this extra step of design review is not unduly burdensome to the
eventual lot owners, and is a reasonable condition to avoid permanent injury to the
i..�.,....,.,..J....,. +t..�+ +4,.. fl..�.,.hU +-, D;r n rwnn romrocon+c fnr +hc ('ni m+v
Lremendous resource that he DiesciltitcO IXivci �.ai1yvii lelfJl ..� .Iw — U.- ..1.y.
Sincerely,
Michael H. McGean
Cc: Danielle and Sanders Nye
Kyle Collins
From: Cody Smith
Sent: Tuesday, November 10, 2020 2:24 PM
To: Kyle Collins; Chris Doty
Cc: Adam Smith
Subject: RE: Road Maintenance Covenant Issues- 19800 Pacific Heights Road (URGENT)
Attachments: #8135467v6 PDX_ - Deschutes County Road Mtce Agr.docx
Kyle,
The Road Department reviewed the attached road maintenance covenant and determined that it met Condition of
Approval No. 14 for File No. TP-11-1016 within the Road Department's scope of review. Road Department staff
acknowledged and did not take issue with the termination provision. It is important to note that the initial submittal of
the road maintence covenant, which was prepared by Bend View Holdings 429 LLC's legal counsel, was formatted as a
road maintenance agreement, with Deschutes County proposed as a party to the agreement. After consulting County
Legal Counsel and senior staff with the Community Development Department, Road Department staff determined that
an agreement was an inappropriate method for the matter, as an agreement required at least two parties, and the
County would not be held under nor would we consider enforcing any obligations given in such an agreement. As 1 have
previously indicated, no party is legally obligated to maintain the public roads within Pacific Cascade Heights. The public
roads within the Pacific Cascade Heights subdivision are local access roads. Pursuant to ORS 368.031, the County is not
liable to keep local access roads in repair, making it difficult to burden another entity with that liability. Similarly, we
cannot effectively obligate an entity to actually maintain a public road without adopting a minimum maintenance
standard. It is also important to note that covenants such as these can often be amended or terminated without any
land use approval or legislation. The question of determining whether or not amendment or termination of a covenant
invalidates the land i,se annroval at issue is beyond the Road Department's scope of review.
The intent of the requirement to record an instrument assigning road maintenance responsibilities for public roads
within a proposed subdivision to the owners of the subdivision is to provide a clear indication to those owners and their
successors in interest that the identified public roads are not maintained and operated by Deschutes County. Prior Road
Department staff requested that these matters be addressed through a road maintenance agreement as the term
"agreement" is used in DCC 17.16.040 and was used in a previous version of DCC 17,16.105, Current Road Department
staff do not favor that approach regarding public road maintenance for the reasons stated above; our current approach
is to request that maintenance be assigned to property owners or their successors in interest by covenant, as that term
is used in DCC 17.16.040 and DCC 17.16,105 and in accordance with DCC 17.48.160(A), and a statement on the final plat
(which cannot be altered without land use approval or legislation).
Please let me know if further clarification is required.
Thank you,
Cody Smith, P.E. County Engineer
61150 SE 271h Street Bend, Oregon 97702
Office: (541) 322-7113 1 Cell: (541) 699-8753
Email: Cody.Smith@deschutes.org
Website: www.deschutes.org/road
From: Kyle Collins <Kyle.Collins@deschutes.org>
Sent: Monday, November 09, 202012:30 PM
1
To: Cody Smith <Cody.Smith@deschutes.org>; Chris Doty <Chris.Doty@deschutes.org>
Cc: Adam Smith <Adam.Smith@deschutes.org>
Subject: RE: Road Maintenance Covenant Issues- 19800 Pacific Heights Road (URGENT)
Cody and/or Chris
I need some additional clarity concerning the matters discussed in the emails below.
We just held a public hearing with the BOCC and there are some outstanding concerns regarding maintenance
responsibilities for Pacific Heights Road.
Pacific Heights Road was created as part of tentative plan TP-11-1016 (see attached)
As a part of that decision, the following condition of approval was added:
"The applicant will be responsible for the maintenance of both Gopher Gulch Road and Northern Estates Lane
on their property as a result of this application. The applicant shall record a Road Maintenance Agreement with
the County Clerk outlining the maintenance responsibilities of these roads. The agreement shall be reviewed
and approved by the Road Department prior to recording the plat."
The Road Maintenance agreement was ultimately recorded and the final plat approval was signed off on by the Road
Department (see attached).
The Road Maintenance agreement includes the following language:
"Termination. Notwithstanding anything contained in this Covenant to the contrary, this Covenant may be
terminated (i) upon written notice from the Owners of more than 67% of the lots in the Pacific Cascade Heights
Subdivision if either of the Roads is used to gain access to real estate that is not part of the Pacific Cascade
Heights Property without a road maintenance agreement or covenant being in place that is satisfactory to the
Owners of at least 67% of the lots in the Pacific Cascade Heights Subdivision, obligating the owners of the other
real estate or Deschutes County to share in the performance and costs of improvement, repair, and
maintenance of the Roads;..."
Based on the condition of approval referenced above, it would appear the Road Department reviewed the maintenance
covenant.
Our questions now are as follows:
1) Did the Road Department actually review this document before signing off on the final plat?
a. If YES to question 1:
i. Did the Road Department acknowledge the termination provision above and not take issue?
ii. Did the Road Department not recognize the terminate clause was included?
At this point we just need clarification if the Road Maintenance covenant was actually review by the Road Department
at all, and what your position on that particular provision would have been if it was reviewed.
Let me know if you have any additional questions or concerns.
Regards,
Kyle Collins Associate Planner
`�. 117 NW Lafayette Avenue I Bend, Oregon 97703
PO Box 6005 I Bend, Oregon 97708
Tel: (541) 383-4427 1 www.deschutes.org/cd
006
Let us know how we're doing: Customer Feedboek Survey
Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to
constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person.
From: Cody Smith <Cody.Smith@deschutes.org>
Sent: Thursday, July 2, 2020 3:26 PM
To: Kyle Collins <I<vle.Collins@deschutes.org>
Cc: Adam Smith <Adam.Smith@deschutes.org>
Subject: RE: Road Maintenance Covenant Issues- 19800 Pacific Heights Road (URGENT)
Kyle,
The Road Department will be immutable if the Hearing's Officer approves the subdivision and the HOA breaks the
poison pill. No party is legally obligated to maintain the public roads within Pacific Cascade Heights, and a hearing's
officer cannot change that.
Give me a call if further discussion is needed.
Thanks,
Cody Smith, P.E. I County Engineer
61150 SE 27t" Street ( Bend, Oregon 97702
Office: (541) 322-7113 1 Cell: (541) 699-8753
Email: Cody.Smith@deschutes.org
Website: www.deschutes.org/road
From: Kyle Collins <Kyle.Collins@deschutes.org>
Sent: Wednesday, July 01, 202011:12 AM
To: Cody Smith <Cody.Smith@deschutes.org>
Subject: Road Maintenance Covenant Issues-19800 Pacific Heights Road (URGENT)
Importance: High
Cody,
I wanted to reach out to you regarding a public hearing for a subdivision proposal at 19800 Pacific Heights Road (file nos.
247-19-000913-LL, 19-914-TP)
Specifically, during the hearing both the applicant and the another party brought up a legal theory regarding DCC
17.16.105.
As background:
The neighboring subdivision (Pacific Cascade Heights) has a road maintenance covenant with a built in "poison
pill" for any future development on surrounding properties (see attached email and covenant which was signed
and recorded)
o Specifically, the covenant states that if the existing portion of their subdivision roads are used to access
property outside of Pacific Cascade Heights, then the HOA has the ability to disband its maintenance
requirements regarding their rights -of -way
o We were unsure how this scenario would affect the requirements of DCC 17.16.105, which states in
essence "Subdivisions must be accessed by roads constructed to County standards and by 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"
• This is one of the items we raised to the Hearings Officer for clarification
The applicant stated during the hearing that the existing covenant meets the letter of the code, regardless of future
actions by the Pacific Cascade Heights HOA, and this poison pill language cannot be utilized to deny the Tentative Plan
for the subdivision.
While no major conclusion has occurred regarding this theory yet, our questions now relate to the following scenario:
- Assuming the applicants and the Pacific Cascade Heights HOA cannot reach an agreement for a new road
maintenance covenant (which seems very possible) AND the Hearings Officer approves the new subdivision, it
appears that we may wind up in a scenario wherein no parties are legally responsible for the maintenance of the
roads within the Pacific Cascade Heights subdivision.
Obviously there are a lot of unknowns here, but this seems like it could cause some significant problems, and we wanted
to know up front what the Road Department might have to say in kind, or if any clever solutions come to mind should
the scenario above come to pass.
The written record period for new testimony is open for another 6 days (until July 7 at 5PM), so if you want or need to
submit additional comments into the record, I will need those soon.
I know you are swamped, but give me a call or response as soon as you can to discuss this further.
Thanks,
Kyle Collins I Associate Planner
117 NW Lafayette Avenue I Bend, Oregon 97703
"APO Box 6005 1 Bend, Oregon 97708
Tel: (541) 383-4427 1 www.deschutes.org/cd
Let us know how we're doing: Customer Feedback Survey
Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to
constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person.
After recording return to:
Bend View Holdings 429 LLC
9310 NE Vancouver Mall Drive, Suite 200
Vancouver WA 98662
ROAD MAINTENANCE COVENANT
This Road Maintenance Covenant (this "Covenant") is made this day of
, 2017, by Bend View Holdings 429 LLC, a Washington limited liability company
('Declarant"), whose address is c/o Hawthorn Development LLC, 9310 NE Vancouver Mall
Drive, Suite 200, Vancouver, Washington 98662 for the benefit of the current and future owners
of the Pacific Cascade Heights Property, as defined below.
RECITALS
A. Declarant owns certain real property in Deschutes County, Oregon known
as Pacific Cascade Heights as per the final plat (the "Plat") recorded as
Document No. , Records of Deschutes County, Oregon
(the "Pacific Cascade Heights Property").
B. By that certain Deed of Dedication dated September 2, 2010 and recorded
on September 24, 2010 as Document No. 2010-37602, Declarant
dedicated a 60-foot wide strip of land across the Pacific Cascade Heights
Property to the public for roadway and utility purposes (the "2010
Dedication"). The 2010 Dedication was accepted by the Board of County
Commissioners of Deschutes County, Oregon.
C. As a condition to its approval of the Plat, Deschutes County requires that
the public road created by the 2010 Dedication be re -aligned across the
western part of the Pacific Cascade Heights Property, as shown on the site
plan attached hereto as Exhibit A and incorporated herein by this reference
(the "Site Plan"). The re -aligned public road will be called "Pacific
Heights Road." Pacific Heights Road, as re -aligned, has not yet been
formally dedicated to the public or accepted by Deschutes County.
D. The Plat also includes another road to be dedicated by Declarant, shown as
"Northern Estates Lane" on the Site Plan. Northern Estates Lane has not
1— ROAD MAINTENANCE AGREEMENT
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yet been formally dedicated to the public or accepted by Deschutes
County.
E. Declarant desires to dedicate Pacific Heights Road and Northern Estates
Lane as shown on the Plat (the "Roads") to Deschutes County.
F. Deschutes County requires this Covenant and the License (as defined
below) as a condition to Deschutes County's approval of the dedication of
Pacific Heights Road and Northern Estates Lane.
G. Declarant intends that the Pacific Cascade Heights Property will be held,
sold, occupied, and conveyed subject to this Covenant, that this Covenant
will run with the land, and that this Covenant shall be binding on all
current and future owners of any portion of, or interest in the Pacific
Cascade Heights Property, including each future owner of a lot in the
subdivision created by the Plat (the "Pacific Cascade Heights
Subdivision").
COVENANT
NOW, THEREFORE, Declarant declares that the Pacific Cascade Heights Property is
hereby subjected to this Covenant, as follows:
1. Construction of Roads. Declarant will construct the Roads in accordance with
Deschutes County Road Standards and all applicable Legal Requirements (as defined below).
2. General Obligations. At their sole cost and expense, the owners of lots in the
Pacific Cascade Heights Subdivision (the "Owners") will improve, repair and maintain the Roads
in good condition and repair to (and consistent with) applicable Deschutes County Road
Standards and all other applicable Legal Requirements (the "Work"). Declarant shall be sole
Owner until the Pacific Cascade Heights Subdivision is filed and Declarant has conveyed any lot
therein to a third party. In connection with the Work, and without otherwise limiting the
generality of the immediately preceding sentence, the Owners will:
(a) Maintain the Roads in good, passable condition under all traffic and
weather conditions (including, without limitation, maintenance of appropriate drainage
facilities);
(b) Fill chuck holes, repair cracks, repair and resurface roadbeds, repair and
maintain drainage structures, remove debris, maintain signs, markers, striping, and any other
work necessary or appropriate to improve, maintain, repair, and preserve the Roads for all
weather road purposes; and
(c) If all or any part of either of the Roads becomes damaged or destroyed,
promptly repair and/or restore the same.
2 — ROAD MAINTENANCE COVENANT
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3. Compliance with Legal Requirements. The Owners will perform the Work in
accordance with any and all applicable Legal Requirements and will obtain and maintain any and
all licenses, permits, registrations, and other governmental authorizations required to perform the
Work, including, without limitation, a permit for working in a public right of way from the City
of Bend or Deschutes County, whichever governing body then has jurisdiction. For purposes of
this Covenant, the term "Legal Requirements" means any and all applicable federal, state,
county, laws, rules, regulations, codes, and ordinances, including, without limitations, Deschutes
County Road Standards, all as now in force or which may hereafter be amended, adopted and/or
established.
4. Termination. Notwithstanding anything contained in this Covenant to the
contrary, this Covenant may be terminated (i) upon written notice from the Owners of more than
67% of the lots in the Pacific Cascade Heights Subdivision if either of the Roads is used to gain
access to real estate that is not part of the Pacific Cascade Heights Property without a road
maintenance agreement or covenant being in place that is satisfactory to the Owners of at least
67% of the lots in the Pacific Cascade Heights Subdivision, obligating the owners of the other
real estate or Deschutes County to share in the performance and costs of improvements, repair,
and maintenance of the Roads; (ii) upon annexation of all or any part of the Pacific Cascade
Heights Subdivision into the City of Bend or any other city, town, or municipality; and (iii) upon
the further subdivision, partition, or other property division or series of property divisions that
results in the existence of more than fourteen legal lots in the Pacific Cascade Heights Property.
Termination of this Covenant, regardless of how it occurs, will not relieve the Owners of any
obligations that have accrued before termination.
5. Miscellaneous.
5.1 Attorney Fees. In the event litigation or arbitration is instituted to enforce
or determine the parties' rights or duties arising out of the terms of the Covenant, the prevailing
party will recover from the losing party reasonable attorney fees incurred in such proceeding to
the extent permitted by the judge or arbitrator, in arbitration, at trial, on appeal, or in the
bankruptcy proceedings.
5.2 Amendment and Further Assurances. The Covenant may only be
amended by an instrument in writing recorded in the real property records of Deschutes County.
5.3 Governing Law and Entire Covenant. This Covenant will be governed by,
construed, and enforced in accordance with the laws of the State of Oregon and venue for any
action concerning this Covenant will be in Deschutes County, Oregon.
5.4 Notices. Unless otherwise specified in this Covenant, any notice required
under this Covenant must be in writing. Any notice will be deemed given when personally
delivered or delivered by facsimile transmission (with electron confirmation of delivery), or will
be deemed given three business days following delivery of the notice by U.S. mail, postage
prepaid, by the applicable party to the address of the other party shown above (or any other
address that a party may designate by notice to the other party), unless that day is a Saturday,
Sunday, or legal holiday, in which event will be deemed delivered on the next following
3 — ROAD MAINTENANCE COVENANT
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business day. For any Owner other than Declarant, notices delivered to such Owner's address for
real property tax statements shall be sufficient.
5.5 Remedies. If a party fails to perform any of its terms, covenants,
conditions, or obligations under this Covenant, the non -defaulting party may, in addition to any
other remedy provided to the non -defaulting party under this Covenant, pursue any and all
remedies available to the non -defaulting party at law or in equity. All available remedies are
cumulative and may be exercised singularly or concurrently.
IN WITNESS WHEREOF, Declarant has caused this Covenant to be executed and
effective on the date first written above.
DECLARANT
Bend View Holdings 429, LLC
an Oregon limited liability company
By: Harvest Management Services Corp.
Its: Manager
10
STATE OF OREGON )
)SS.
DESCHUTES COUNTY )
Barton G. Colson, President
The foregoing instrument was acknowledged before me this day of ,
2017, by Barton G. Colson, as President of Harvest Management Services Corp., the Manager of
Bend View Holdings 429, LLC.
Notary Public for Oregon
My Commission Expires:
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EXHIBIT A
Site Plan
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BEND VIEW HOLDINGS 429 LLC
POINTS NORTH ESTATES
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