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2021-148-Minutes for Meeting March 31,2021 Recorded 4/13/2021v-cES BOARD OF COMMISSIONERS 1300 NW Wall Street, Bend, Oregon (541) 388-6570 Recorded in Deschutes County CJ2021-148 Nancy Blankenship, County Clerk Commissioners' Journal 04/13/2021 4:17:28 PM ^\y��FS r�G II I I I III II'I II I I II I III I I I II III 2021-148 FOR RECORDING STAMP ONLY 9:00 AM Wednesday, March 31, 2021 BARNES & SAWYER ROOMS VIRTUAL MEETING PLATFORM Present were Commissioners Patti Adair, Anthony DeBone, and Phil Chang. Also present were Tom Anderson, County Administrator; David Doyle, County Counsel; and Sharon Keith, Board Executive Assistant (via Zoom conference call). Attendance was limited due to Governor's Virus Orders. This meeting was audio and video recorded and can be accessed at the Deschutes County Meeting Portal website http://deschutescountyor.iqm2.com/Citizens/Default.aspx CALL TO ORDER: Chair DeBone called the meeting to order at 9:00 a.m. PLEDGE OF ALLEGIANCE: CITIZEN INPUT: Members were present from the Sisters Rodeo, Curt Kallberg, Frank Jacobson, and Roger White. The rodeo event planned for last year was cancelled due to the COVID19 pandemic. The 80th anniversary of the Sisters Rodeo is slated for this year. The event organizers are working on preparations and are now cognizant that finances are such that the event cannot go forward if attendance is limited to 25% capacity. At the very least, they need at least 50% capacity. Safety measures will be implemented to ensure the safety of the community during the continued pandemic. Commissioner DeBone noted this is actually an ask of the community to BOCC MEETING MARCH 31, 2021 PAGE 1 OF 7 be mindful of COVID safety protocols and personal responsibility. Commissioner Adair noted the ongoing vaccination efforts and the importance of achieving herd immunity. Commissioner Adair believes that encouraging sponsorships will assist with covering costs of the event. Commissioner Chang also encourages a call to the community and asked event organizers if they will consider a public service announcement(s) to ensure the public that the event is safe and that public health concerns will be fully addressed. Commissioner DeBone acknowledged two emails received through the Citizen Input Line: • Patrick and Teri Sherman, resident of Deschutes River Woods, requested a consideration of yard debris burning bans in Deschutes River Woods • Kim Kahl, resident of Deschutes River Woods, requested a consideration of banning outdoor burning in Deschutes River Woods Commissioner DeBone noted the importance of maintaining fire resiliency and reminded the community to please use caution and think twice before you burn and to remember to communicate with your fire district and fire departments. FireFree days are available to bring yard debris to the landfills and transfer stations. Commissioner Chang noted the governance of debris burning and related rorti iIntinric 'Inc tniith thin Marini is fires rlictrirtc and not thin ("minty CONSENT AGENDA: Before the Board was Consideration of Approval of the Consent Agenda. ADAIR: Move approval of Consent Agenda CHANG: Second VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried 1. Consideration of Board Signature of Resolution No. 2021-018 Increasing FTE Within the 2020-21 Deschutes County Budget 2. Approval of Minutes of the March 12, 2021 Legislative Meeting 3. Approval of Minutes of the March 17, 2021 BOCC Meeting 4. Approval of Minutes of the March 22, 2021 BOCC Meeting BOCC MEETING MARCH 31, 2021 PAGE 2 OF 7 S. Approval of Minutes of the March 24, 2021 BOCC Meeting ACTION ITEMS: 6. READING of a PROCLAMATION: Declaring April 2021 Child Abuse Prevention Month - KIDS Center Via Zoom conference call to present were Tim Rusk -MountainStar Family Relief Nursery, Gabrielle Allender - KIDS Center, and Riley Broderick - KIDS Center. Following presentation and discussion, the Commissioners read the Proclamation into the record. ADAIR: Move approval of the Proclamation CHANG: Second VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried 7. Consideration of Board Signature of Order No. 2021-009, Further Extending the Declared State of Emergency County Counsel Dave Doyle presented the Order to allow for a 30 day extension on the declared state of local emergency, primarily to address FEMA funding logistics. CHANG: Move adoption of Order No. 2021-009 ADAIR: Second VOTE: CHANG: Yes ADAIR: Yes DEBONE: Chair votes yes. Motion Carried BOCC MEETING MARCH 31, 2021 PAGE 3 OF 7 8. PUBLIC HEARING: Consideration of Order No. 2021-006, Completing Legalization Procedures for Portions of NE Negus Way and NE 17th Street County Engineer Cody Smith, via Zoom conference call, presented the public hearing procedures and staff report. Commissioner DeBone opened the public hearing. Hearing no public testimony, Commissioner DeBone closed the public hearing. CHANG: Move adoption of Order No. 2021-006 ADAIR: Second VOTE: CHANG: Yes ADAIR: Yes DEBONE: Chair votes yes. Motion Carried 9. COVIDI9 Update Health Services staff Nahad Sadr-Azodi, Dr. George Conway, and Molly Wells - Darling presented via Zoom conference call. Presentation is attached to the record. 10.Consideration of Board Signature of Document No. 2021-261, an Improvement Agreement Associated with Westgate Subdivision Phases 5-7 Community Development Department Sr. Planner Anthony Raguine presented (via Zoom conference call). For the record, Mr. Raguine pointed out a needed revision to section 14, page 5. The improvement agreement is related to road and utility infrastructure of phases 5 - 7 in the Westgate subdivision development. ADAIR: Move Board Signature of Document No. 2021-261 CHANG: Second BOCC MEETING MARCH 31, 2021 PAGE 4 OF 7 VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried OTHER ITEMS: • The revised letter in response to Oregon OSHA relative to COVID19 public health emergency in all Oregon workplaces was presented for consideration. CHANG: Move Board Signature ADAIR: Second VOTE: CHANG: Yes ADAI R: Yes DEBONE: Chair votes yes. Motion Carried • Commissioner Chang inquired on the status of filling the vacancy on the Local Public Safety Coordinating Council. Commissioner DeBone will present the joint recommendation after the recess. RECESS: At the time of 11:14 a.m., the Board went into recess and reconvened the meeting at 1:00 p.m. 11.PUBLIC HEARING: Marijuana Housekeeping Text Amendments Community Development Planner Tanya Saltzman (via Zoom conference call) presented the public hearing procedures. Upon no conflicts or bias of the Board of Commissioners and hearing no challenges, Commissioner DeBone opened the public hearing. Ms. Saltzman presented the staff report. BOCC MEETING MARCH 31, 2021 PAGE 5 OF 7 Commissioner DeBone called for public testimony. • Hunter Neubauer, co-founder of Oregrown Industries, presented testimony against the marijuana opt -out result of the November 3, 2020 election. Mr. Neubauer commented on the threat to his business and stated he will be back during the next election and they will come hard and be ready to fight with the County. Commissioner DeBone commented that Mr. Neubauer's testimony did not focus on the topic of today's public hearing. Mr. Neubauer commented on impacts against neighboring properties and the concern with making modifications to his business. Commissioner Chang inquired on modifications to an existing permit. Community Development Director Nick Lelack provided information related to ORS provisions that address marijuana related businesses and provisions relative to the opt -out. • Kevin Hogan, president of Oregrown provided testimony against the marijuana opt -out. He asked what it means to cause an adverse impact to a neighborhood. He feels that modification to an application will take too much time. • Hnhey Wecton, general manager at Oregrown presented testimony in opposition of not allowing current businesses to expand. • Lindsey Pate, via Zoom conference call, board member at Cascade Cannabis and business owner of a cannabis farm, presented testimony in opposition of the opt -out policies and is concerned with the impact to business owners. Commissioner Adair suggested closing the oral record at this time and recommended keeping the written record open. Community Development Director Nick Lelack commented on land use application modifications. Planning Manager Peter Gutowsky (via Zoom conference call) spoke on land use applications and any impacts. There is a process for applications which honors the land use system. Commissioner DeBone closed the oral testimony and will keep the written record open for two weeks. County Counsel Dave Doyle explained the focus of the hearing is relative to the housekeeping amendments which were designed to implement the will of the people as reflected in the Opt Out vote. To be relevant, testimony and record submissions should be specific to the housekeeping amendments. The BOCC MEETING MARCH 31, 2021 PAGE 6 OF 7 written record will be open until 5:00 p.m. on Wednesday, April 14, 2021. OTHER ITEMS: • Commissioner DeBone presented the Local Public Safety Coordinating Council committee candidate recommendation for appointment of Donna Mills. Commissioner Chang inquired on the selection process. Commissioner DeBone explained the selection process and the interviews were held with six candidates. The Board supported the recommended appointment. EXECUTIVE SESSION: At the time of 2:03 p.m. the Board went into Executive Session under ORS 192.660 (2) (e) Real Estate Negotiations. The Board came out of Executive Session at 3:16 p.m. to direct staff to proceed as discussed. ADJOURN Being no further items to come before the Board, the meeting was adjourned at 3:17 p.m. DATED this Day of 2021 for the Deschutes County Board of Commissioners. ATTEST: Let -Me - RECORDING SECRET g7r0a,)„ NTHONY DEBONE, CHAIR PHIL CHNG, VI C CHAIR PATI ADAIR, COMMISSIONER BOCC MEETING MARCH 31, 2021 PAGE 7 OF 7 o , Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 - www.deschutes.org BOCC MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 9:00 AM, WEDNESDAY, MARCH 31, 2021 Barnes Sawyer Rooms - Deschutes Services Center - 1300 NW Wall Street - Bend This meeting is open to the public, and allows the Board to gather information and give direction to staff. Public comment is not normally accepted. Written minutes are taken for the record Pursuant to ORS 192.640, this agenda includes a list of the main topics that are anticipated to be considered or discussed. This notice does not limit the Board's ability to address other topics. Meetings are subject to cancellation without notice. Item start times are estimated and subject to change without notice. CALL TO ORDER 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: citizeninput@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 present your agenda item, you will be unmuted and placed in the spotlight for your presentation. If you are Board of Commissioners BOCC Meeting Agenda of 4 Wednesday, March 31, 2021 Page 1 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. For Public Hearings, the link to the Zoom meeting will be posted in the Public Hearing Notice as well as posted on the Deschutes County website at https://www.deschutes.org/bcc/page/public-hearing-notices PLEDGE OF ALLEGIANCE CITIZEN INPUT (for items not on this Agenda) [Note: Because COVID-19 restrictions may limit or preclude in person attendance, citizen input comments may be emailed to citizeninput@deschutes.org or you may leave a brief voicemail at 541.385.1734. To be timely, citizen input must be received by 8:00am on the day of the meeting.] CONSENT AGENDA 1. Consideration of Board Signature of Resolution No. 2021-018 Increasing FTE Within the 2020-21 Deschutes County Budget 2 Annrnval of Minutes of the March 12 2021 Legislative Meeting 3. Approval of Minutes of the March 17 2021 BOCC Meeting 4. Approval of Minutes of the March 22 2021 BOCC Meeting 5. Approval of Minutes of the March 24, 2021 BOCC Meeting ACTION ITEMS 6. READING of a PROCLAMATION: Declaring April 2021 Child Abuse Prevention Month - KIDS Center - Tom Anderson, County Administrator 7. Consideration of Board Signature of Order No. 2021-009, Further Extending the Declared State of Emergency - David Doyle, Legal Counsel 8. PUBLIC HEARING - Consideration of Order No. 2021-006, Completing Legalization Procedures for Portions of NE Negus Way and NE 17Th Street - Cody Smith, County Engineer Board of Commissioners BOCC Meeting Agenda of 4 Wednesday, March 31, 2021 Page 2 9. Consideration of Board Signature of Document No. 2021-261, an Improvement Agreement Associated with Westgate Subdivision Phases 5-7. - Anthony Raguine, Senior Planner 10.COVID19 Update LUNCH RECESS 11. PUBLIC HEARING: Marijuana Housekeeping Text Amendments - Tanya Saltzman, Senior Planner OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. EXECUTIVE SESSION At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories. Executive sessions are closed to the public; however, with few exceptions and under specific guidelines, are open to the media. Executive Session under ORS 192.660 (2) (e) Real Estate ADJOURN To watch this meeting on line, go to: www.deschutes.org/meetings Please note that the video will not show up until recording begins. You can also view past meetings on video by selecting the date shown on the website calendar. Deschutes County encourages persons with disabilities to participate in all programs and activities. This event/location is accessible to people with disabilities. If you need accommodations to make participation possible, please call (541) 617-4747. /1\ Board of Commissioners BOCC Meeting Agenda of 4 Wednesday, March 31, 2021 Page 3 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.) Wednesday, March 31, 2021 Page 4 Board of Commissioners BOCC Meeting Agenda of 4 Sharon Keith To: _citizeninput Subject: CITIZEN -.INPUT Original Message From: Patrick Sherman <akhawk1982@icloud.com> Sent: Tuesday, March 30, 2021 9:48 PM To: Patti Adair <Patti.Adair@deschutes.org> Subject: DRW [EXTERNAL EMAIL] Hi Patti 1 am writing you this letter to hopefully shed some light on our situation regarding burning yard debris in the DRW. As you already know last Sunday we had a huge scare with some fires that broke out because of people burning. We luckily dodged a huge bullet by our own fire brigade being called out and doing some amazing work to hold it before the fire department made it out here. People are truly living in fear of the big one coming. And it is. I have witnessed burn piles so big that I just can't imagine what people are thinking. We are at one of the highest risk areas for fire out here where we live. Sunday all I could think about while my wife and I were packing everything up was everything we have worked so hard for was about to be home because of one of Persons ignorant way of burning yard debris. Paradise California came to mind ...We need to have this open burning ,in one of the driest areas with the most fuel to be banned for good. It's only a matter of time before it's gonna be too late !! Please hear our voices and take a good look at this for us. I have always been impressed with your leadership and what you have done for us as commissioner and know in your heart that this needs to be addressed. Thanks you for taking your tome to read this and God bless you in all you do for our county ! Sincerely Patrick and Teri Sherman Sharon Keith To: Subject: citizeninput FW: Ban debris burning in Deschutes River Woods From: Kim Kahl <kimkahl44@gmail.com> Sent: Wednesday, March 31, 2021 8:10 AM To: Patti Adair <Patti.Adair@deschutes.org>; Phil.Chang@descutes.org; Tony DeBone <Tony.DeBone@deschutes.org> Subject: Ban debris burning in Deschutes River Woods. [EXTERNAL EMAIL] Hello all....I am writing with regard to the incident which occurred in Deschutes River Woods this past Sunday where a burn pile had not been properly put out and reignited to spread to other properties, killing two goats and at least 50 chickens, as well as burning up vehicles and out buildings. Luckily no homes were burned down and no lives were lost but it is just a matter of time before a burn pile does spark a fire that gets out of control and rages through our subdivision. The time is long past due that debris burning should be illegal in Deschutes River Woods. Over 5,000 people live in Deschutes River Woods and the effects of a fire caused by human carelessness & irresponsibility would be catastrophic. I was evacuated in 1993 when the Awbrey Hall fire jumped across the river and it was absolute chaos trying to get out of DRW. There are far more people living out here now and even though there are more routes available to get out, the fact remains that in order to get to those routes, we still only have two ways out and those would be a bottleneck for those of us living in the far west part of DRW. One of my friends was walking her dog yesterday and came across a huge blaze with absolutely no one in attendance. Another friend was walking her dog that same day and came across a big burn on another street. There were many burns going on yesterday all over. Many of the people burning fires are just like the one whose fire was not properly put out and caused the near disaster on Saturday. Obviously people did not take seriously what happened on Saturday and that is truly frightening. It only takes one spark and because we live in a heavily forested area it is no longer a matter of if a devastating fire is going to occur, but when. With so many negligent fire burners, it is a potentially frightening scenario and angers me that so many people think it is their right to be able to burn despite the fact that common sense dictates that it is a potentially dangerous endeavor! I am writing to request that serious consideration be given to ban outdoor burning in Deschutes River Woods before it is too late. 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MEMORANDUM TO: Deschutes County Board of Commissioners FROM: Tanya Saltzman, AICP, Senior Planner DATE: March 25, 2021 SUBJECT: Public Hearing: Marijuana Housekeeping Text Amendments I. OVERVIEW The Board of County Commissioners (Board) will hold a public hearing on March 31 concerning Ordinance No. 2021-004, legislative amendments to codify Deschutes County's recent "opt out" of new marijuana production and processing businesses, and to clarify several other marijuana -related topics. Staff submitted a 35-day Post -Acknowledgement Plan Amendment (PAPA) notice to the Department of Land Conservation and Development (DLCD) on February 24, 2021. Staff reviewed the proposed amendments with the Planning Commission on March 11, 2021.1 A work session with the Board was held on March 22, 2021,2 at which time the complete record was provided. A summary of the proposed amendments and background information was provided to the Board in the packet submitted for the March 22 work session. II. PUBLIC COMMENTS At the time of writing, no public comments have been received concerning the proposed amendments. III. NEXT STEPS The Board will open the March 31 public hearing to receive public testimony. At the conclusion of the public hearing, the Board can: 1 https://deschutescountyor.igm2.com/Citizens/Detail_Meeting.aspx?ID=2738 2 https://deschutescountyor.igm2.com/Citizens/Detail_Meeting.aspx?ID=2685 • Continue the hearing to a date certain; • Close the oral record and leave the written record open to a date certain; • Close the oral record and the written record and set a date for deliberations; or • Close the hearing and begin deliberations. Attachments: 1. Ordinance No. 2021-004 - Emergency 2. Corresponding Exhibits to Ordinance No. 2021-004: Exhibit A - DCC Chapter 18.16, Exclusive Farm Use Zones Exhibit B - DCC Chapter 18.32, Multiple Use Agricultural Zone - MUA Exhibit C - DCC Chapter 18.66, Terrebonne Rural Community Zoning Districts Exhibit D - DCC Chapter 18.67, Tumalo Rural Community Zoning Districts Exhibit E - DCC Chapter 18.100, Rural Industrial Zone - R-I Exhibit F - DCC Chapter 18.108, Urban Unincorporated Community Zone - Sunriver Exhibit G - DCC Chapter 18.116, Supplementary Provisions Exhibit H - Findings Page 2 of 2 For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Deschutes County Code Title 18, Deschutes County Zoning, to Incorporate "Housekeeping" Changes that Ensure that the Deschutes County Code is Consistent with the Results of the "No" Vote on Ballot Measure 9-134 and to Provide Clarification of Existing Regulations Regarding Marijuana and Declaring an Emergency. ORDINANCE NO. 2021-004 WHEREAS, the Deschutes County Community Development Department (CDD) initiated amendments (Planning Division File No. 247-21-000168-TA) to the Deschutes County Code (DCC) Title 18, Chapters 18.16, Exclusive Farm Use Zones; 18.32, Multiple Use Agricultural Zone; 18.66, Terrebonne Rural Community Zoning Districts; 18.67, Tumalo Rural Community Zoning Districts; 18.100, Rural Industrial Zone — R-I; 18.108, Urban Unincorporated Community Zone — Sunriver; and 18.116, Supplementary' Provisions; to ensure that the DCC is consistent with the results of the "No" vote on Ballot Measure 9-134, and to provide clarification of existing regulations regarding marijuana; and WHEREAS, the Deschutes County Planning Commission reviewed the proposed changes on March 11, 2021; and WHEREAS, the Board considered this matter after a duly noticed public hearing on March 31, 2021 and concluded that the public will benefit from the proposed changes to the Deschutes County Code Title 18; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. DCC 18.16. Exclusive Farm Use, is amended to read as described in Exhibit "A", attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in strike Section 2. AMENDMENT. DCC 18.32. Multiple Use Agriculture, is amended to read as described in Exhibit "B", attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in arikethrough. PAGE 1 OF 3 - ORDINANCE NO. 2021-004 Section 3. AMENDMENT. DCC 18.66. Terrebonne Rural Community Zoning Districts, is amended to read as described in Exhibit "C", attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in strikethrough. Section 4. AMENDMENT. DCC 18.67. Tumalo Rural Community Zoning Districts, is amended to read as described in Exhibit "D", attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in strike Section 5. AMENDMENT. DCC 18.100. Rural Industrial Zone — R-I, is amended to read as described in Exhibit "E", attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in strikethrough. Section 6. AMENDMENT. DCC 18.108. Urban Unincorporated Community Zone - Sunriver, is amended to read as described in Exhibit "F", attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in strikethreugh, Section 7. AMENDMENT. DCC 18.116. Supplementary Provisions, is amended to read as described in Exhibit "G", attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in strikethrough. Section 8. FINDINGS. The Board adopts as its findings, Exhibit "H" attached and incorporated by reference herein. / / / PAGE 2 OF 3 - ORDINANCE NO. 2021-004 Section 9. EMERGENCY. This Ordinance being necessary to ensure consistency with the "No" vote on Ballot Measure 9-134 and for the immediate preservation of the public peace, health, safety, and welfare, an emergency is declared to exist, and this Ordinance becomes effective immediately. Dated this of , 2021 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ANTHONY DEBONE, Chair PHILIP CHANG, Vice Chair ATTEST: Recording Secretary PATTI ADAIR Date of 1st Reading: day of , 2021. Date of 2nd Reading: day of , 2021. Record of Adoption Vote: Commissioner Yes No Abstained Excused Anthony DeBone Philip Chang Patti Adair Effective date: day of , 2021. PAGE 3 OF 3 - ORDINANCE NO. 2021-004 Chapter 18.16. EXCLUSIVE FARM USE ZONES 18.16.020. Uses Permitted Outright. 18.16.025. Uses Permitted Subject to the Special Provisions Under DCC Section 18.16.038 or DCC Section 18.16.042 and a Review Under DCC Chapter 18.124 where applicable. *** 18.16.020. Uses Permitted Outright. The following uses and their accessory uses are permitted outright: A. Farm use as defined in DCC Title 18. B. Propagation or harvesting of a forest product. C. Operations for the exploration for minerals as defined by ORS 517.750. Any activities or construction relating to such operations shall not be a basis for an exception under ORS 197.732(2)(a) or (b). D. Accessory buildings customarily provided in conjunction with farm use. E. Climbing and passing lanes within the right of way existing as of July 1, 1987. F. Reconstruction or modification of public roads and highways, including the placement of utility facilities overhead and in the subsurface of public roads and highways along the public right of way, but not including the addition of travel lanes, where no removal or displacement of buildings would occur, or no new land parcels result. G. Temporary public road and highway detours that will be abandoned and restored to original condition or use when no longer needed. H. Minor betterment of existing public road and highway -related facilities such as maintenance yards, weigh stations and rest areas, within a right of way existing as of July 1, 1987, and contiguous public owned property utilized to support the operation and maintenance of public roads and highways. I. Creation, restoration or enhancement of wetlands. J. A lawfully established dwelling may be altered, restored or replaced, subject to DCC 18.16.023. 1. The replacement dwelling is subject to OAR 660-033-0130(30) and the County shall require as a condition of approval of a single-family replacement dwelling that the landowner for the dwelling sign and record in the deed records for the county a document binding the landowner, and the landowner's successors in interest, prohibiting them from pursuing a claim for relief or cause of action alleging injury from farming or forest practices for which no action or claim is allowed under ORS 30.936 to 30.937. K. A replacement dwelling to be used in conjunction with farm use if the existing dwelling is listed on the National Register of Historic Places and on the County inventory as a historic property as defined in ORS 358.480, and subject to 18.16.020(J)(1)above. L. Operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District except as provided in DCC 18.120.050. M. Utility facility service lines. Utility facility service lines are utility lines and accessory facilities or structures that end at the point where the utility service is received by the customer and that are located on one or more of the following: 1. A public right of way; 2. Land immediately adjacent to a public right of way, provided the written consent of all adjacent property owners has been obtained; or 3. The property to be served by the utility. N. The land application of reclaimed water, agricultural process or industrial process water or biosolids, or the onsite treatment of septage prior to the land application of biosolids, for agricultural, horticultural or silvicultural production, or for irrigation in connection with a use allowed in an exclusive farm use zone, subject to the issuance of a license, permit or other approval by the Department of Environmental Quality under ORS 454.695, 459.205, 468B.053 or 468B.055, or in compliance with rules adopted under ORS Chapter 18.16 1 (3/2021) EXHIBIT A TO ORDINANCE NO. 2021-004 468B.095, and with the requirements of ORS 215.246 to 215.251. For the purposes of this section, onsite treatment of septage prior to the land application of biosolids is limited to treatment using treatment facilities that are portable, temporary and transportable by truck trailer, as defined in ORS 801.580, during a period of time within which land application of biosolids is authorized under the license, permit or other approval. O. Fire service facilities providing rural fire protection services. P. Operations for the exploration for and production of geothermal resources as defined by ORS 522.005 and oil and gas as defined by ORS 520.005, including the placement and operation of compressors, separators and other customary production equipment for an individual well adjacent to the wellhead. Any activities or construction relating to such operations shall not be a basis for an exception under ORS 197.732(2)(a) or (b). Q. Outdoor mass gathering described in ORS 197.015(10)(d), and subject to DCC Chapter 8.16. R. Composting operations that are accepted farming practices in conjunction with and auxiliary to farm use on the subject tract as allowed under OAR 660-033-0130(29). 81-Wed Li-el:1011 .;aGbl ,; DC(' l 8-4 1. (EOrd. 2021 -OW 1, 2021.Ord. 2018-006 §5, 2018; Ord. 2016-015 §2, 2016; Ord. 2014-010 §1, 2014; Ord. 2012-007 §2, 2012; Ord. 2010-022 §2, 2010; Ord. 2009-014 §1, 2009; Ord. 2008-001 §2, 2008; Ord. 2004- 001 §2, 2004; Ord. 2001-039 §1, 2001; Ord. 2001-016 §2, 2001; Ord. 98-030 §1, 1998; Ord. 95-007 §10, 1995; Ord. 92-065 §3, 1992; Ord. 91-038 §1 and 2, 1991; Ord. 91-024 §1, 1991; Ord. 91-020 §1, 1991; Ord. 91-005 §4, 1991; Ord. 91-002 §3, 1991; Ord. 86-007 §1, 1986; Ord. 81-025 §1, 1981; Ord. 81-001 §1, 1981) 18.16.025. Uses Permitted Subject to the Special Provisions Under DCC Section 18.16.038 or DCC Section 18.16.042 and a Review Under DCC Chapter 18.124 where applicable. A. Dwellings customarily provided in conjunction with farm use (farm -related dwellings), subject to DCC 18.16.050. B. B. A relative farm assistance dwelling, subject to DCC 18.16.050. C. Religious institutions or assemblies and cemeteries in conjunction with religious institutions or assemblies consistent with ORS 215.441 and OAR 660-033-0130(2) on non -high value farmland. D. Expansion of an existing church or cemetery in conjunction with a church on the same tract as the existing use, subject to Oregon Administrative Rules 660-033-0130. E. Utility facilities necessary for public service, including wetland waste treatment systems, but not including commercial facilities for the purpose of generating electrical power for public use by sale and transmission towers over 200 feet in height. A utility facility necessary for public service may be established as provided in: 1. DCC 18.16.038(A); or 2. DCC 18.16.038(E) if the utility facility is an associated transmission line, as defined in ORS 469.300. F. Winery, as described in ORS 215.452. G. Farm stands, subject to DCC 18.16.038. H. A site for the takeoff and landing of model aircraft, including such buildings or facilities as may be reasonably necessary. I. A facility for the processing of farm crops, or for the production of biofuel as defined in ORS 315.141, if the facility is located on a farm operation that provides at least one -quarter of the farm crops processed at the facility, or an establishment for the slaughter, processing or selling of poultry or poultry products pursuant to ORS 603.038. 1. If a building is established or used for the processing facility or establishment, the farm operator may not devote more than 10,000 square feet of floor area to the processing facility or establishment, exclusive of the floor area designated for preparation, storage or other farm use . 2. A processing facility or establishment must comply with all applicable siting standards but the standards shall not be applied in a manner that prohibits the siting of the processing facility. Chapter 18.16 2 (3/2021) EXHIBIT A TO ORDINANCE NO. 2021-004 3. The County shall not approve any division of a lot or parcel that separates a processing facility or establishment from the farm operation on which it is located. J. Agri -tourism and other commercial events and activities subject to DCC 18.16.042. K. Dog training classes or testing trials conducted outdoors or in farm buildings that existed on January 1, 2013, when: 1. The number of dogs participating in training does not exceed 10 per training class and the number of training classes to be held on -site does not exceed six per day; and 2. The number of dogs participating in a testing trial does not exceed 60 and the number of testing trials to be conducted on -site does not exceed four per calendar year. 1 — mitu t t SH1 eet-toa1 44)op;ici4146p4,44-4si n-s of 1)€1(1-1 & 1 64424i}-agile ;v : d6.330; (Old 2021_-004 § 1 2021 Ord. 2020-001 §3, 2020; Ord. 2016-015 §2, 2016; Ord. 2014-010 §1, 2014; Ord. 2012-007 §2, 2012; Ord. 2012-004 §2, 2012; Ord. 2010-022 §2, 2010; Ord. 2009-014 §1, 2009; Ord. 2008- 001 §2, 2008; Ord. 2004-001 §2, 2004) Chapter 18.16 3 (3/2021) EXHIBIT A TO ORDINANCE NO. 2021-004 Chapter 18.32. MULTIPLE USE AGRICULTURAL ZONE - MUA 18.32.030. Conditional Uses Permitted. 18.32.030. Conditional Uses Permitted. The following uses may be allowed subject to DCC 18.128: A. Public use. B. Semipublic use. C. Commercial activities in conjunction with farm use. The commercial activity shall be associated with a farm use occurring on the parcel where the commercial use is proposed. The commercial activity may use, process, store or market farm products produced in Deschutes County or an adjoining County. D. Dude ranch. E. Kennel and/or veterinary clinic. F. Guest house. G. Manufactured home as a secondary accessory farm dwelling, subject to the requirements set forth in DCC 18.116.070. H. Exploration for minerals. I. Private parks, playgrounds, hunting and fishing preserves, campgrounds, motorcycle tracks and other recreational uses. J. Personal use landing strip for airplanes and helicopter pads, including associated hangar, maintenance and service facilities. No aircraft may be based on a personal -use landing strip other than those owned or controlled by the owner of the airstrip. Exceptions to the activities permitted under this definition may be granted through waiver action by the Aeronautics Division in specific instances. A personal use landing strip lawfully existing as of September 1, 1975, shall continue to be permitted subject to any applicable regulations of the Aeronautics Division. K. Golf courses. L. Type 2 or Type 3 Home Occupation, subject to DCC 18.116.280. M. A facility for primary processing of forest products, provided that such facility is found to not seriously interfere with accepted farming practices and is compatible with farm uses described in ORS 215.203(2). Such a facility may be approved for a one-year period which is renewable. These facilities are intended to be only portable or temporary in nature. The primary processing of a forest product, as used in DCC 18.32.030, means the use of a portable chipper or stud mill or other similar method of initial treatment of a forest product in order to enable its shipment to market. Forest products, as used in DCC 18.32.030, means timber grown upon a parcel of land or contiguous land where the primary processing facility is located. N. Destination resorts. O. Planned developments. P. Cluster developments. Q. Landfills when a written tentative approval by the Department of Environmental Quality (DEQ) of the site is submitted with the conditional use application. R. Time-share unit or the creation thereof. S. Hydroelectric facility, subject to DCC 18.116.130 and 18.128.260. T. Storage, crushing and processing of minerals, including the processing of aggregate into asphaltic concrete or Portland cement concrete, when such uses are in conjunction with the maintenance or construction of public roads or highways. U. Bed and breakfast inn. Chapter 18.32 (3/2021) EXHIBIT B TO ORDINANCE NO. 2021-004 V. Excavation, grading and fill and removal within the bed and banks of a stream or river or in a wetland subject to DCC 18.120.050 and 18.128.270. W. Religious institutions or assemblies, subject to DCC 18.124 and 18.128.080. X. Private or public schools, including all buildings essential to the operation of such a school. Y. Utility facility necessary to serve the area subject to the provisions of DCC 18.124. Z. Cemetery, mausoleum or crematorium. AA. Commercial horse stables. BB. Horse events, including associated structures, not allowed as a permitted use in this zone. CC. Manufactured home park or recreational vehicle park on a parcel in use as a manufactured home park or recreational vehicle park prior to the adoption of PL-15 in 1979 and being operated as of June 12, 1996, as a manufactured home park or recreational vehicle park, including any expansion of such uses on the same parcel, as configured on June 12, 1996. DD. A new manufactured home/recreational vehicle park, subject to Oregon Administrative Rules 660-004-0040(7)(g) that: 1. Is on property adjacent to an existing manufactured home/recreational vehicle park; 2. Is adjacent to the City of Bend Urban Growth Boundary; and 3. Has no more than 10 dwelling units. EE. The full or partial conversion from a manufactured home park or recreational vehicle park described in DCC 18.32.030 (CC) to a manufactured home park or recreational vehicle park on the same parcel, as configured on June 12 1996. FF. Wireless telecommunications facilities, except those facilities meeting the requirements of DCC 18.116.250(A) or (B). GG. Guest lodge. HH. Surface mining of mineral and aggregate resources in conjunction with the operation and maintenance of irrigation systems operated by an Irrigation District, including the excavation and mining for facilities, ponds, reservoirs, and the off -site use, storage, and sale of excavated material. -CH-114 iz i{-3ctw4 Hl {'r7 eel.;(4111L piE3di; {€rn 44 DC 4-4ts i 16 ;i44. c$'4juiiita-p`edi4-41(4R { i? 44) 144e (io 4,,, 1v, ol DC(..-' la 1 46 4'4 }. (91 d m20211 004 ),, 2021 Ord. 2020-001 §4, 2020; Ord. 2016-015 §3, 2016; Ord. 2015-002 §1, 2015; Ord. 2009-018 § 1, 2009; Ord. 2004-002 §4, 2004; Ord. 2001-039 §2, 2001; Ord. 2001-016 §2, 2001; Ord. 97-063 §3, 1997; Ord. 97-029 §2, 1997; Ord. 97-017 §2, 1997; Ord. 96-038 §1, 1996; Ord. 94-053 §2, 1994; Ord. 94-008 §11, 1994; Ord. 93-043 §§4A and B, 1993; Ord. 92-055 §2, 1992; Ord. 91-038 §1, 1991; Ord. 91-020 §1, 1991; Ord. 90-014 §§27 and 35, 1990; Ord. 91-005 §§19 and 20, 1991; Ord. 91-002 §7, 1991; Ord. 86-018 §7, 1986; Ord. 83-033 §2, 1983; Ord. 80-206 §3, 1980) Chapter 18.32 (3/2021) EXHIBIT B TO ORDINANCE NO. 2021-004 Chapter 18.66. TERREBONNE RURAL COMMUNITY ZONING DISTRICTS 18.66.040. Commercial (TeC) District. 18.66.050. Commercial -Rural (TeCR) District. 18.66.040. Commercial (TeC) District. The Terrebonne Commercial District is intended to allow a range of commercial and limited industrial uses to serve the community and surrounding rural area. A. Permitted Uses. The following uses and their accessory uses are permitted outright and do not require site plan review: 1. Single-family dwelling or two-family on a lot or parcel existing on June 4, 1997. 2. Manufactured home on a lot or parcel existing on June 4, 1997, subject to DCC 18.116.070. 3. Type 1 Home Occupation, subject to DCC 18.116.280. 4. Class I and II road or street project subject to approval as part of a land partition, subdivision or subject to the standards of DCC 18.66.070 and 18.116.230. 5. Class III road or street project. 6. Operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District except as provided in DCC 18.120.050. B. Uses Permitted Subject to Site Plan Review. The following uses and their accessory uses are permitted subject to the applicable provisions of DCC 18.66, 18.116 and 18.1248: 1. A building or buildings not exceeding 4,000 square feet of floor space to be used by any combination of the following uses: a. Retail or service business. b. Eating or drinking establishment. c. Offices. d. Veterinary clinic and kennel entirely within an enclosed building. e. Residential use in the same building as a use permitted by DCC 18.66.040(B)(1). f. Marijuana wholesaling, office only. There shall be no storage of marijuana items or products at the same location. 2. Any of the uses allowed under DCC 18.66.040 proposing to occupy more than 4,000 square feet of floor area in a building or buildings, subject to provisions of DCC 18.66.040(E). 3. Child care facility and/or preschool. C. Conditional Uses. The following uses and their accessory uses are permitted subject to the applicable provisions of DCC 18.66, 18.116, 18.124 and 18.128: 1. Motel, with a maximum of 35 units, only if served by a community sewer system as defined in OAR 660-22-010(2). 2. Recreational vehicle park. 3. Religious institutions or assemblies. 4. Type 2 or Type 3 Home Occupation, subject to DCC 18.116.280. 5. Public or private school. 6. Park. 7. Public or semi-public building. 8. Medical center in a building or buildings not exceeding 4,000 square feet of floor space. 9. Utility facility. 10. Water supply or treatment facility. 11. Vehicle and trailer sales, service, repair or rental in a building or buildings not exceeding 4,000 square feet of floor space. Chapter 18.66 1 (3/2021) EXHIBIT C TO ORDINANCE NO. 2021-004 12. Uses listed below carried on in a building or buildings not exceeding 4,000 square feet of floor space with no exterior displays or storage of industrial equipment, industrial vehicles or industrial products: a. Manufacturing and production. b. Wholesale sales. c. Mini -storage. 13. Wireless telecommunications facilities, except those facilities meeting the requirements of DCC 18.116.250(A) or (B). 14. Surface mining of mineral and aggregate resources in conjunction with the operation and maintenance of irrigation systems operated by an Irrigation District, including the excavation and mining for facilities, ponds, reservoirs, and the off -site use, storage, and sale of excavated material. k3ie-et-411re- i ov-v, i€> 9 f 1-X"C 18-H 144544 -1-4 1 . Marijuana retailing, subject to the provisions of DCC 18.116.330. D. Use Limitations. The following use limitations shall apply to the uses listed in DCC 18.66.040(B) and (C). 1. Sewer and Water Requirements. Applicant must obtain approval for an on -site sewage disposal system, or if applicable, obtain a Department of Environmental Quality (DEQ) Waste Water Pollution Control Facility (WPCF) permit before approval or as condition of approval of the land use permit. 2. The County shall notify the Terrebonne Domestic Water District of land use actions made under DCC 18.66. E. Requirements for Large Scale Uses. 1. All uses listed in DCC 18.66.040(B) and 18.66.040(C)(9) may have a total building floor area exceeding 4,000 square feet if the Planning Director or Hearings Body finds: a. The use is intended to serve the community and surrounding rural area or the travel needs of people passing through the area; b. The use will primarily employ a work force from the community and surrounding rural area; and c. It is not practical to locate the use in a building or buildings with floor area of 4,000 square feet ,. or ,ass. 2. For purposes of DCC 18.66.040, the surrounding rural area includes the area described by the Terrebonne zip code, which extends south to the boundary of the Redmond zip code, west to the boundary of the Sisters zip code, east into Crook County to the boundary of the Prineville zip code and north into Jefferson County to include Crooked River Ranch. F. Design Standards. Ground Floor Windows. The following criteria for ground floor windows apply to all new commercial buildings in the TeC District except those containing uses listed in DCC 18.66.040(C)(13). The provisions of DCC 18.124 also apply. 1. The window area shall equal at least 50 percent of the length and 25 percent of the height of the ground level wall area. Ground level wall area includes all exterior wall area up to nine feet above the finished grade. The window requirement applies to the ground level of exterior building walls that abut sidewalks or roads. 2. Required window areas shall be windows that allow views into either working areas, lobbies, pedestrian entrances or display windows. G. Lot Requirements. Minimum size requirements for this district will be determined by spatial requirements for on -site sewage disposal, required landscaped areas and off-street parking. No lot or parcel shall be created of less than a minimum of 10,000 square feet. H. Dimensional Standards. Lot Coverage. No lot coverage requirements, provided spatial requirements for parking, sewage disposal and landscaping are satisfied. I. Yard Standards. 1. Front Yard. The front yard shall be a maximum of 15 feet, except as otherwise allowed by DCC 18.124.070(D)(3). Chapter 18.66 2 (3/2021) EXHIBIT C TO ORDINANCE NO. 2021-004 The street setback for buildings may be reduced, but not increased, to the average building setback distance of existing buildings on adjoining lots. 2. Side Yard. No requirement, subject to DCC 18.66.040(I)(4). 3. Rear Yard. No specific requirements, subject to DCC 18.66.040(I)(4). 4. Exceptions to Yard Standards. a. Lot line adjacent to a residential district. Any new structure requiring a building permit sited on a lot adjacent to a residential district shall be set back a minimum of 15 feet from the common property line. The required yard shall be increased by one foot for each foot by which the building height exceeds 20 feet. b. Lot line adjacent to an EFU zone. Any new structure requiring a building permit on a lot or parcel adjacent to EFU-zoned land that is receiving special assessment for farm use shall be set back a minimum of 100 feet from the common property line. (Ord. 2011 E}04 32021; Ord. 2020-010 §3, 2020; Ord. 2020-001 §7, 2020; Ord. 2016-015 §5, 2016; Ord. 2015-004 §3, 2015; Ord. 2004-002 §15, 2004; Ord. 97-063 §3, 1997; Ord. 97-003 §2, 1997) 18.66.050. Commercial -Rural (TeCR) District. The Terrebonne Commercial -Rural District allows a mix of commercial and industrial uses common to a farming community. A. Permitted Uses. The following uses and their accessory uses are permitted outright and do not require site plan review: 1. Single-family dwelling on a lot or parcel existing on June 4, 1997. 2. Manufactured home on a lot or parcel existing on June 4, 1997, subject to DCC 18.116.070. 3. Type 1 Home Occupation, subject to DCC 18.116.280. 4. Class I and II road or street project subject to approval as part of a land partition, subdivision or subject to the standards of DCC 18.66.070 and 18.116.230. 5. Class III road or street project. 6. Operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District except as provided in DCC 18.120.050. B. Uses Permitted Subject to Site Plan Review. The following uses and their accessory uses are permitted subject to the applicable provisions of DCC 18.66, 18.116 and 18.124: 1. A building or buildings not exceeding 4,000 square feet of floor space to be occupied by any combination of the following uses: a. Retail or service business. b. Eating or drinking establishment. c. Office. d. Residential use in the same building as a use listed in DCC 18.66.050. e. Marijuana wholesaling, office only. There shall be no storage of marijuana items or products at the same location. 2. Any of the uses listed under DCC 18.66.050(B) proposing to occupy more than 4,000 square feet of floor area in a building or buildings, subject to provisions of DCC 18.66.050(E). C. Conditional Uses. The following uses and their accessory uses are permitted subject to the applicable provisions of DCC 18.66, 18.116, 18.124 and 18.128: 1. Religious institutions or assemblies. 2. Type 2 or Type 3 Home Occupation, subject to DCC 18.116.280. 3. Park. 4. Public or semi-public building. 5. Utility facility. 6. Water supply or treatment facility. 7. Vehicle and trailer sales, service, repair and rental in a building or buildings not exceeding 4,000 square feet of floor area. Chapter 18.66 3 (3/2021) EXHIBIT C TO ORDINANCE NO. 2021-004 8. Uses listed below carried on in a building or buildings not exceeding 10,000 square feet of floor space to be occupied by any combination of the following uses: a. Manufacturing or production. b. Wholesale sales. c. Mini -storage. d. Truck terminal. e. Farm or contractor equipment storage, sales, service or repair. f. Uses that require proximity to rural resources, as defined in OAR 660-04-022- (3)(a). 9. Wireless telecommunications facilities, except those facilities meeting the requirements of DCC 18.116.250(A) or (B). 10. Surface mining of mineral and aggregate resources in conjunction with the operation and maintenance of irrigation systems operated by an Irrigation District, including the excavation and mining for facilities, ponds, reservoirs, and the off -site use, storage, and sale of excavated material. 4.4... 4V-1dI f§i3'ri (3 f3 tzy IS�r .'q z � �E3..the piF f{i§§s off)( 14r,1--16 1..:-1-0 12i 1. Marijuana retailing, subject to the provisions of DCC 18.116.330. D. Use Limitations. The following use limitations shall apply to the uses listed in DCC 18.66.050(B) and (C). 1. Sewer and Water Requirements. a. Applicant must obtain approval for an on -site sewage disposal system, or if applicable, obtain a Department of Environmental Quality (DEQ) Waste Water Pollution Control Facility (WPCF) permit before approval or as condition of approval of the land use permit. b. The County shall notify the Terrebonne Domestic Water District of land use actions made under DCC 18.66. 2. Compatibility. a. Any use on a lot adjacent to a residential district shall not emit odor, dust, fumes, glare, flashing lights, noise, or similar disturbances perceptible without instruments more than 200 feet in the direction of the affected residential lnt, b. Any use expected to generate more than 50 truck -trailer, contractors and/or farm heavy equipment trips per day to and from the subject property shall not locate on a lot or parcel adjacent to or across a local or collector road from a lot or parcel in a residential district. c. No use shall be permitted that has been declared a nuisance by state statute, County ordinance or a court of competent jurisdiction. d. No use requiring an air containment discharge permit shall be approved by the Planning Director or Hearings Body before review by the applicable state or federal permit -reviewing authority. Such uses shall not be located adjacent to or across a local or collector road from a lot or parcel in a residential district. 3. Traffic and Parking. a. A use that generates more than 20 auto or truck trips during the peak hour of the day to and from the premises shall document with facts that the affected transportation facilities are adequate to serve the proposed use, considering the functional classification, capacity and level of service of the affected transportation facility. b. All parking demand generated by uses permitted by DCC 18.66 shall be accommodated entirely on the premises. c. Site design shall not require backing of traffic onto a public or private road right-of-way. 4. Additional Requirements. As a condition of approval of any use proposed, the Planning Director or Hearings Body may require: a. An increased setback requirement. b. Additional off-street parking and loading facilities. c. Limitations on signs, lighting, hours of operation and points of ingress and egress. d. Additional landscaped buffering and screening improvements. E. Requirements for Large Scale Uses. Chapter 18.66 4 (3/2021) EXHIBIT C TO ORDINANCE NO. 2021-004 1. All uses listed in DCC 18.66.050(B) may be allowed to occupy a total floor area exceeding 4,000 square feet if the Planning Director or Hearings Body finds: a. The use is intended to serve the community and surrounding rural area or the traveling needs of people passing through the area; b. The use will primarily employ a work force from the community and surrounding rural area; and c. It is not practical to contain the proposed use within 4,000 square feet of floor area. 2. This provision does not apply to uses listed in DCC 18.66.050(C)(8). 3. For purposes of DCC 18.66.050(E), the surrounding rural area described by the Terrebonne zip code, which extends south to the boundary of the Redmond zip code, west to the boundary of the Sisters zip code, east into Crook County to the boundary of the Prineville zip code and north into Jefferson County to include Crooked River Ranch. F. Design Standards. Ground Floor Windows. The following criteria for ground floor windows apply to all new commercial buildings in the TeCR District except those containing uses listed in DCC 18.66.050(C)(8). The provisions of DCC 18.124 also apply. 1. The window area shall be at least 50 percent of the length of the ground level wall area and 25 percent of height of the ground level wall area. Ground level wall area includes all exterior wall area up to nine feet above the finished grade. The window requirement applies to the ground level of exterior building walls that abut sidewalks or roads. 2. Required window areas shall be windows that allow views into either working areas, lobbies, pedestrian entrances or display windows. G. Lot Requirements. No lot shall be created less than a minimum of 10,000 square feet. Lot requirements for this district shall be determined by spatial requirements for sewage disposal, required landscaped areas and off-street parking. H. Dimensional Standards. 1. Lot Coverage: No lot coverage requirements, provided spatial requirements for parking, sewage disposal and landscaping are satisfied. 2. No use listed in DCC 18.66.050(C)(8) that is located adjacent to or across a local or collector road from a lot or parcel in a residential district shall exceed 70 percent lot coverage by all buildings, outside storage or off-street parking and loading areas. I. Yard Standards. 1. Front Yard. The front yard shall be a maximum of 15 feet, except as otherwise allowed by DCC 18.124.070(D)(3)(b). The street setback for buildings may be reduced, but not increased, to the average building setback distance of existing buildings on adjoining lots. 2. Side Yard. No requirement, subject to DCC 18.66.050(I)(4). 3. Rear Yard. No specific requirement, subject to DCC 18.66.050(I)(4). 4. Exceptions to Yard Standards. a. Lot line adjacent to a residential zone. For all new structures requiring a building permit on a lot adjacent to a residential district, the setback shall be a minimum of 15 feet. The required yard will be increased by one foot for each foot by which the building height exceeds 20 feet. b. Lot line adjacent to an EFU zone. Any structure requiring a building permit on a lot adjacent to EFU-zoned land that is receiving special assessment for farm use, shall be set back a minimum of 100 feet from the common property line. (01 d 2021-00%t �� ?0l II zOrd. 2020-001 §7, 2020; Ord. 2016-015 §5, 2016; Ord. 2015-004 §4, 2015; Ord. 2004-002 §16, 2004; Ord. 2001-039 §7, 2001; Ord. 2001-016 §2, 2001; Ord. 97-003 §2, 1997) Chapter 18.66 5 (3/2021) EXHIBIT C TO ORDINANCE NO. 2021-004 Chapter 18.67. TUMALO RURAL COMMUNITY ZONING DISTRICTS 18.67.040. Commercial (TuC) District. 18.67.060. Industrial (TuI) District. 18.67.040. Commercial (TuC) District. The Tumalo Commercial District is intended to allow a range of limited commercial and industrial uses to serve the community and surrounding area. A. Permitted Uses. The following uses and their accessory uses are permitted outright and do not require site plan review. 1. Single-family dwelling or duplex. 2. Manufactured home subject to DCC 18.116.070. 3. Type 1 Home Occupation, subject to DCC 18.116.280. 4. Class I and II road or street project subject to approval as part of a land partition, subdivision or subject to the standards of DCC 18.67.060 and 18.116.230. 5. Class III road or street project. 6. Operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District except as provided in DCC 18.120.050. B. Uses Permitted, Subject to Site Plan Review. The following uses and their accessory uses are permitted subject to the applicable provisions of DCC 18.67, 18.116 and 18.124: 1. A building or buildings, none of which exceeds 4,000 square feet of floor space to be used by any combination of the following uses: a. Retail or service business. b. Eating and/or drinking establishment. c. Offices. d. Residential use in the same building as a use permitted in DCC 18.67.040. e. Marijuana wholesaling, office only. There shall be no storage of marijuana items or products at the same location. 2. Any of the uses listed under DCC 18.67.040 proposing to occupy more than 4,000 square feet of floor area in a building subject to the provisions of DCC 18.67.040(E). 3. Child care facility and/or preschool. C. Conditional Uses. The following uses and their accessory uses are permitted subject to the applicable provisions of DCC 18.116, 18.124, and 18.128: 1. Religious institutions or assemblies. 2. Bed and breakfast inn. 3. Type 2 or Type 3 Home Occupation, subject to DCC 18.116.280. 4. Park. 5. Public or semi-public building. 6. Utility facility. 7. Water supply or treatment facility. 8. Manufactured home/RV park on a parcel in use as a manufactured home park or recreational vehicle park prior to the adoption of PL-15 in 1979 and being operated as of June 12, 1996 as a manufactured home park or recreational vehicle park, including any expansion of such uses on the same parcel as configured on June 12, 1996. 9. The following uses and their accessory uses may be conducted in a building or buildings not to exceed 4,000 square feet of floor space. a. Farm equipment, sales, service or repair. b. Trailer sales, service or repair. c. Vehicle service or repair. Chapter 18.67 1 (3/2021) EXHIBIT D TO ORDINANCE NO. 2021-004 d. Veterinary clinic. 10. The following uses may be conducted in a building or buildings not to exceed 10,000 square feet of floor space: a. Manufacturing or production. b. Wholesale sales. to -the -, n �,.E'rtijt'rili-7i�-��i%?�t','S f§31L?.-"�t��3jc-C'�_ir-� }�_.�3tt)�`isiE�`f3S-4)i � =-i�'r:�-�?.3s0 de. Marijuana retailing, subject to the provisions of DCC 18.116.330. 11. Wireless telecommunications facilities, except those facilities meeting the requirements of DCC 18.116.250(A) or (B). 12. Surface mining of mineral and aggregate resources in conjunction with the operation and maintenance of irrigation systems operated by an Irrigation District, including the excavation and mining for facilities, ponds, reservoirs, and the off -site use, storage, and sale of excavated material. D. Use Limitations. The following use limitations shall apply to the uses listed in DCC 18.67.040(C)(11). 1. Compatibility. a. Any use expected to generate more than 50 truck -trailer and/or heavy equipment trips per day to and from the subject property shall not be permitted to locate on a lot or parcel adjacent to or across a local or collector street from a lot or parcel in a residential district. 2. Traffic and Parking. a. A use that generates more than 20 auto or truck trips during the peak hour of the day to and from the premises shall document with facts that the affected transportation facilities are adequate to serve the proposed use, considering the functional classification, capacity and level of service of the affected transportation facility. b. All parking demand generated by uses permitted by DCC 18.67 shall be accommodated entirely on the premises. E. Requirements for Large Scale Uses. 1. All uses listed in DCC 18.67.040(B) may have a total floor area exceeding 4,000 square feet but not greater than 10,000 square feet if the Planning Director or Hearings Body finds: a. The use is intended to serve the community and surrounding rural area or the traveling needs of people passing through the area; b. The use will primarily employ a work force from the community and surrounding rural area; and c. It is not practical to contain the proposed use within 4,000 square feet of the floor area. 2. This provision does not apply to uses listed in DCC 18.67.040(C)(10). 3. For the purposes of DCC 18.67.040, the surrounding rural area is described as the following: extending north to the Township boundary between Townships 15 and 16; extending west to the boundary of the public lands managed by the U.S. Forest Service in T16S-R11E; extending south to the south section lines of T17S-R12E sections 4,5,6 and T17S-R11E sections 1,2,3; and extending east to Highway 97. F. Design Standards. Ground Floor Windows. The following criteria for ground floor windows apply to new buildings in the TuC district except those uses listed in DCC 18.67.040(C)(10) and any residential use. The provisions of DCC 18.124 also apply. 1. The windows must be at least 50 percent of the length of the ground level wall area and 25 percent of height of the ground level wall area. Ground level wall area includes all exterior wall area up to nine feet above the finished grade. The window requirement applies to the ground level of exterior building walls which abut sidewalks or streets. 2. Required window areas shall be either windows that allow views into working areas, lobbies, pedestrian entrances or display windows. G. Lot Requirements. No lot shall be created having less than a minimum of 10,000 square feet. Lot requirements for this district shall be determined by spatial requirements for sewage disposal, required landscaped areas and off-street parking. H. Dimensional Standards. 1. Lot Coverage: No lot coverage requirements, provided spatial requirements for parking, sewage disposal and landscaping are satisfied. Chapter 18.67 2 (3/2021) EXHIBIT D TO ORDINANCE NO. 2021-004 2. No use listed in DCC 18.67.040(C)(10) that is located adjacent to or across a local or collector from a lot or parcel in a residential district shall exceed 70 percent lot coverage by all buildings, outside storage, or off-street parking and loading areas. I. Yard Standards. 1. Front Yard. The front yard shall be a maximum of 15 feet, except as otherwise allowed by DCC 18.124.070 (D)(3). The street setback for buildings may be reduced, but not increased, to the average building setback distance of existing buildings on adjoining lots. 2. Side Yard. No requirement, subject to DCC 18.67.040(I)(4). 3. Rear Yard. No specific requirement, subject to DCC 18.67.040 (I)(4). 4. Exceptions to Yard Standards. a. Lot line adjacent to a residential zone. For all new structures or substantial alteration of a structure requiring a building permit on a lot adjacent to a residential district, the setback shall be a minimum of 15 feet. The required yard will be increased by one foot for each foot by which the building height exceeds 20 feet. b. Lot line adjacent to an EFU zone. Any structure requiring a building permit on a lot adjacent to EFU-zoned land that is receiving special assessment for farm use shall be set back a minimum of 100 feet from the common property line. (01 cl _)02I _00-1 S I. _ 2021. Ord. 2020-010 §4, 2020; Ord. 2020-001 §8, 2020; Ord. 2016-015 §6, 2016; Ord. 2015-004 §5, 2015; Ord. 2004-013 §7, 2004; Ord. 2004-002 §19, 2004; Ord. 2001-039 §8, 2001; Ord. 2001-016 §2, 2001; Ord. 2000-033 §11, 2000; Ord. 97-063 §3, 1997; Ord. 97-033 §2, 1997) 18.67.060. Industrial (TuI) District. The purpose of the Industrial District is to allow a limited range of industrial uses to serve the community and the surrounding area. A. Uses permitted outright. The following uses and their accessory uses are permitted outright: 1. Industrial uses in existence on the date of adoption of the Unincorporated Communities rule, OAR 660-022 (October 28, 1994); 2. Office buildings associated with industrial uses in existence on the date of adoption of the Unincorporated Communities rule, OAR 660-022 (October 28, 1994); 3. Restaurants and cafeteria facilities associated with industrial uses in existence on the date of adoption of the Unincorporated Communities rule, OAR 660-022 (October 28, 1994); 4. Residence for caretaker or night watchman on property with industrial uses in existence on the date of adoption of the Unincorporated Communities rule, OAR 660-022 (October 28, 1994); 5. Equipment storage associated with industrial uses in existence on the date of adoption of the Unincorporated Communities rule, OAR 660-022 (October 28, 1994); 6. Class I and II road or street project subject to approval as part of a land partition, subdivision or subject to the standards of DCC 18.67.080 and 18.116.230. 7. Class III road or street project. 8. Operation, maintenance, and piping of existing irrigation systems operated by -an Irrigation District except as provided in DCC 18.120.050. B. Uses Permitted, Subject to Site Plan Review. The following uses and their accessory uses are permitted in a building or buildings not to exceed 40,000 square feet of floor area, subject to the applicable provisions of DCC 18.67, 18.116, and 18.124. 1. Expansion or replacement of uses allowed under DCC 18.67.060(A); 2. Office buildings associated with industrial uses; 3. Restaurant and cafeteria facilities associated with industrial uses; 4. Residence for caretaker or night watchman on property with industrial uses; Chapter 18.67 3 (3/2021) EXHIBIT D TO ORDINANCE NO. 2021-004 5 Equipment storage associated with industrial uses; 6. Primary processing, packaging, treatment, bulk storage and distribution of the following products: a. Agricultural products, including foodstuffs, animal and fish products, and animal feeds. b. Ornamental horticultural products and nurseries. c. Softwood and hardwood products excluding pulp and paper manufacturing. d. Sand, gravel, clay and other mineral products. 7. Freight depot, including the loading, unloading, storage and distribution of goods and materials by railcar or truck; 8. Contractor's or building materials business and other construction -related business including plumbing, electrical, roof, siding, etc.; 9. Welding, sheet metal, or machine shop provided such is wholly enclosed within a building or all outside storage is enclosed by site -obscuring fencing. 10. Mini -storage facility. 11. Manufacturing, storage, sales, rental, repair and servicing of equipment and materials associated with farm and forest uses, logging, road maintenance, mineral extraction, construction or similar rural activities; 12. Any industrial use proposing to occupy more than 40,000 square feet of floor area in a building or buildings is subject to the provisions of DCC 18.67.060(C) and (D). Mari-iwivasli¢LI fig E'all+14)iifio eon [? Ira F 3'rt' f4-E.,ai }{±a wa ppadlie-4 sble. t 1-0 the C. Conditional Uses. The following uses and their accessory uses are permitted subject to the applicable provisions of DCC 18.116, 18.124, and 18.128: 1. Any use permitted by DCC 18.67.060(B) which will exceed 40,000 square feet of floor area; 2. Concrete or ready mix plant; 3. Stockpiling, storage, crushing and processing of minerals, including the processing of aggregate into asphaltic concrete or Portland Cement Concrete; 4. Buildings, structures, apparatus, equipment and appurtenances necessary for the above uses to be carried on. ariji--ifta--twoc s,s,H u I i ilirf 4; azfG z 'r }r< h ici ;`-sub.4` 1-€- {ors-(.44€2c `>. Marijuana retailing, subject to the provisions of DCC 18.116.330. D. Use limitations. The following limitations and standards shall apply to all permitted uses: 1. A new industrial use may occupy more than 40,000 square feet of floor area in a building or buildings provided an analysis set forth in the comprehensive plan demonstrates and land use regulations ensure: a. The use will primarily employ a work force from the community and surrounding rural area and will not rely upon a work force served by uses within urban growth boundaries. The determination of the work force of the community shall consider the total industrial employment in the community and surrounding rural area and be coordinated with employment projections for nearby urban growth boundaries; and b. It is not practical to contain the proposed use within 40,000 square feet of the floor area. 2. For the purposes of DCC 18.67.060, the surrounding rural area is described as the following: extending north to the Township boundary between Townships 15 and 16; extending west to the boundary of the public lands managed by the U.S. Forest Service in T16S-R11E; extending south to the south section lines of T17S-R12E sections 4,5,6 and T17S-R11E sections 1,2,3; and extending east to Highway 97. Chapter 18.67 4 (3/2021) EXHIBIT D TO ORDINANCE NO. 2021-004 E. Dimensional standards. In the Industrial Zone, the following dimensional standards shall apply: 1. The minimum lot size shall be determined subject to the provisions of DCC 18.67.060 relative to setback requirements, off-street parking and loading, and as deemed necessary by the Planning Director or Hearings Body, to maintain air, water and land resource quality and to protect adjoining and area land uses. 2. The minimum building setback between a structure and a street, road or railroad right-of-way line shall be 25 feet unless a greater setback is required for compliance with Comprehensive Plan policies. 3. The minimum setback between a structure and a property line adjoining a residential lot or use in a platted subdivision or residential zone shall be 50 feet. 4. The minimum setback between a structure and an existing use shall be three feet from the property line and six feet from a structure on the adjoining property. 5. The maximum building height shall be 45 feet on any lot adjacent to a residential use or lot in a platted subdivision or residential zone. 6. The minimum lot frontage shall be 50 feet. 7. Exception to Yard Standards. Any new structure requiring a building permit on a lot adjacent to EFU-zoned land that is receiving special assessment for farm use shall be set back a minimum of 100 feet from the common property line. F. Industrial Site design. The site design of any permitted use shall make the most effective use reasonably possible of the site topography, existing landscaping and building placement so as to preserve existing trees and natural features, preserve vistas and other views from public ways and neighboring residential uses and to minimize intrusion into the character of existing developments in the immediate vicinity of the proposed use. G. Design and use criteria. In the consideration of an application for a new industrial use, the PlannPlanning Director or Hearings Rodv hall take into ar nn t the impart of the proposed use on ing .,g., � rr.__r.__ nearby residential and commercial uses, on resource carrying capacities and on the capacity of transportation and other public facilities and services. In approving a proposed use, the Planning Director or Hearings Body shall find that: 1. The new use is in compliance with the Comprehensive Plan. 2. The new use is in compliance with the intent and provisions of DCC Title 18. 3. That any adverse social, economical, physical or environmental impacts are minimized. H. Additional requirements. As a condition of approval, the Planning Director or Hearings Body may require: 1. An increase in required setbacks. 2. Additional off-street parking and loading facilities. 3. Limitations on signs or lighting, hours of operation, and points of ingress and egress. 4. Additional landscaping, screening and other improvements. 5. Any other conditions considered necessary to achieve compliance with the intent and purposes of DCC Title 18 and policies of the Comprehensive Plan. I. For purposes of this chapter, a new industrial use does not include industrial uses in existence on the date of Ord. 2005-16. Unless expanded or altered, industrial uses in existence on the date of adoption of the TUI District are not subject to the requirements of 18.67.060(B) or 18.67.060(C). (Ord. .2021 00�� 20)1, Ord. 2016-015 §6, 2016; Ord. 2015-004 §6, 2015; Ord. 2005-016 §2, 2005) Chapter 18.67 5 (3/2021) EXHIBIT D TO ORDINANCE NO. 2021-004 Chapter 18.100. RURAL INDUSTRIAL ZONE - R-I 18.100.010. Uses Permitted Outright. 18.100.020. Conditional Uses. 18.100.010. Uses Permitted Outright. In an R-I Zone, the following uses and their accessory uses are permitted outright except as limited by DCC 18.100.040, and unless located within 600 feet from a residential dwelling, a lot within a platted subdivision or a residential zone. A. Fanning or forest use. B. Primary processing, packaging, treatment, bulk storage and distribution of the following products: 1. Agricultural products, including foodstuffs, animal and fish products, and animal feeds. 2. Ornamental horticultural products and nurseries. 3. Softwood and hardwood products excluding pulp and paper manufacturing. 4. Sand, gravel, clay and other mineral products. C. Residence for caretaker or night watchman on property. D. Freight Depot, including the loading, unloading, storage and distribution of goods and materials by railcar or truck. E. Contractor's or building materials business and other construction -related business including plumbing, electrical, roof, siding, etc., provided such use is wholly enclosed within a building or no outside storage is permitted unless enclosed by sight -obscuring fencing. F. Ice or cold storage plant. G. Wholesale distribution outlet including warehousing, but excluding open outside storage. H. Welding, sheet metal or machine shop provided such is wholly enclosed within a building or all outside storage is enclosed by gibaht-nhcriiri- fencing. I. Kennel or a Veterinary clinic. J. Lumber manufacturing and wood processing except pulp and paper manufacturing. K. Class I and II road or street project subject to approval as part of a land partition, subdivision or subject to the standards and criteria established by DCC 18.116.230. L. Class III road or street project. M. Operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District except as provided in DCC 18.120.050. r 4 4\4- trift-Si}-}�z'-t-F } ��i-r£-h?-{`l-�S-i;-rEi`i7'i4'.%lei-itif}it--d c}fi'-E=t_'i➢l-t'i-t=rs'rrix-1-ti`�ill��i%i'r11C3-r'-E t-�ii=E:}}'c!F- �Y.-S-1:: 3j'r=i''-{•cA-l1Y (Ord ' M2.1 004§5 7021=Ord. 2016-015 §8, 2016; Ord. 2015-004 §8, 2015; Ord. 2002-126, §1, 2002; Ord. 2001-039 §12, 2001; Ord. 2001-016 §2, 2001; Ord. 93-043 §16, 1993; Ord. 91-038 §1, 1991) 18.100.020. Conditional Uses. The following uses may be allowed subject to DCC 18.128: A. Any use permitted by DCC 18.100.010, which is located within 600 feet of a residential dwelling, a lot within a platted subdivision or a residential zone. B. Any use permitted by DCC 18.100.010, which involves open storage. C. Concrete or ready -mix plant. D. Petroleum products storage and distribution. E. Storage, crushing and processing of minerals, including the processing of aggregate into asphaltic concrete or Portland Cement Concrete. F. Commercial feedlot, stockyard, sales yard, slaughterhouse and rendering plant. G. Railroad trackage and related facilities. Chapter 18.100 1 (3/2021) EXHIBIT E TO ORDINANCE NO. 2021-004 H. Pulp and paper manufacturing. I. Any use permitted by DCC 18.100.010, which is expected to exceed the following standards: 1. Lot coverage in excess of 70 percent. 2. Generation of any odor, dust, fumes, glare, flashing lights or noise that is perceptible without instruments 500 feet from the property line of the subject use. J. Manufacture, repair or storage of articles manufactured from bone, cellophane, cloth, cork, feathers, felt, fiber, glass, stone, paper, plastic, precious or semiprecious stones or metal, wax, wire, wood, rubber, yarn or similar materials, provided such uses do not create a disturbance because of odor, noise, dust, smoke, gas, traffic or other factors. K. Processing, packaging and storage of food and beverages including those requiring distillation and fermentation. L. Public Landfill Transfer Station, including recycling and other related activities. M. Mini -storage facility. N. Automotive wrecking yard totally enclosed by a sight -obscuring fence. O. Wireless telecommunications facilities, except those facilities meeting the requirements of DCC 18.116.250(A) or (B). P. Utility facility. Q. Manufacturing, storage, sales, rental, repair and servicing of equipment and materials associated with farm and forest uses, logging, road maintenance, mineral extraction, construction or similar rural activities. R. Electrical substations. S. Marijuana retailing, subject to the provisions of DCC 18.116.330. i 4144 444161z'r 43i i 4 11 11g C mat4Roid'c 1 .i.. sn iETI f> if, €o i, 4v s al l )(1(' i {'il§'xilfli j ;ti . E a iii ail 'ciC-irli4 414 ii-X•s iilute4, 1444 E'l:ion 'sitcsjE;:'t-4 T 3 ii2 f- ro ,4 ➢p,44 )( 1' 4 g I 16 ::dd30 (Cir(a. 202 I -OO1 § 2021: Ord. 2018-006 §12, 2018; Ord. 2016-015 §8, 2016; Ord. 2004-013, §10, 2004; Ord. 2002-126, §1, 2002; Ord. 2001-039 §12, 2001; Ord. 2001-016 §2, 2001; Ord. 97-063 §3, 1997; Ord. 91-038 §1, 1991; Ord. 91-020 §1, 1991; Ord. 90-014 §38, 1990; Ord. 86-018 §15, 1986) Chapter 18.100 2 (3/2021) EXHIBIT E TO ORDINANCE NO. 2021-004 Chapter 18.108. URBAN UNINCORPORATED COMMUNITY ZONE - SUNRIVER 18.108.110. Business Park — BP District. 18.108.110. Business Park - BP District. A. Uses Permitted Outright. The following uses and their accessory uses are permitted outright: 1. Residential uses existing as of March 31, 1997. 2. Administrative, educational and other related facilities in conjunction with a use permitted outright. 3. Library. 4. Recreational path. 5. Post office. 6. Religious institutions or assemblies. 7. Child care facilities, nurseries, and/or preschools. 8. A building or buildings each not exceeding 8,000 square feet of floor space housing any combination of: Retail/rental store, office and service establishment, including but not limited to the following: a. Automobile, motorcycle, boat, recreational vehicle, trailer or truck sales, rental, repair or maintenance business, including tire stores and parts stores. b. Agricultural equipment and supplies. c. Car wash. d. Contractor's office, including but not limited to, building, electrical, plumbing, heating and air conditioning, painter, etc.. e. Construction equipment sales, rental and/or service. f. Exterminator services. g. Golf cart sales and service. h. Lumber yard, home improvement or building materials store. i. Housekeeping and janitorial service. j. Dry cleaner and/or self-service laundry facility. k. Marine/boat sales and service. 1. Restaurant, bar and cocktail lounge including entertainment. Er— l ofma ?7?d_'_Ettliftti hxSrtt i j`trh3i: Ue4ts .s1 0 Sid': iff tSt-011ttt— } D(-4tUttl6 s tam. Marijuana wholesaling, office only. There shall be no storage of marijuana items or products at the same location. 9. A building or buildings each not exceeding 20,000 square feet of floor space housing any combination of: a. Scientific research or experimental development of materials, methods or products, including engineering and laboratory research. b. Light manufacturing, assembly, fabricating or packaging of products from previously prepared materials, including but not limited to cloth, paper, leather, precious or semi-precious metals or stones, etc. c. Manufacture of food products, pharmaceuticals and the like, but not including the production of fish or meat products, or the rendering of fats and oils. d. Warehouse and distribution uses in a building or buildings each less than 10,000 square feet of floor area. 10. Employee housing structures. Chapter 18.108 1 (3/2021) EXHIBIT F TO ORDINANCE NO. 2021-004 B. Conditional Uses Permitted. The following conditional uses may be permitted subject to DCC 18.128 and a conditional use permit: 1. Public buildings and public utility structures and yards, including railroad yards. 2. A dwelling unit for a caretaker or watchman working on a developed property. 3. Law enforcement detention facility. 4. Parking lot. 5. Radio and television broadcast facilities. 6. A building or buildings each not exceeding 8,000 square feet of floor space housing any combination of: a. Bowling alley. b. Theater. c. Veterinary clinic and/or kennel. €.�. ffij f €�: y�i�L r kfr�4i cft i1abili is—ex{met-'vfkh+e-o j<➢ the pi' E3Vi jefiR € ... ed. Marijuana retailing, subject to the provisions of DCC 18.116.330. 7. A building or buildings each not exceeding 20,000 square feet of floor space housing any combination of: a. Warehouses and distribution uses in a building or buildings exceeding 10,000 square feet of floor area. b. Distillery and beer/ale brewing facility, including wholesale sales thereof. c. Self/mini storage. d. Trucking company dispatch/terminal. e. Solid waste/garbage operator, not including solid waste disposal or other forms of solid waste storage or transfer station. C. Use Limits. The following limitations and standards shall apply to uses listed in DCC 18.108.110(A) or (B): 1. A use expected to generate more than 30 truck -trailer or other heavy equipment trips per day to and from the subject property shall not be permitted to locate on a lot adjacent to or across the street from a lot in a residential district. 2. Storage, loading and parking areas shall be screened from residential zones. 3. No use requiring air contaminant discharge permits shall be approved by the Planning Director or Hearings Body prior to review by the applicable state or federal permit reviewing authority, nor shall such uses be permitted adjacent to or across the street from a residential lot. D. Special Requirements for Large Scale Uses. Any of the uses listed in DCC 18.108.110(A)(6) or (B)(6) may be allowed in a building or buildings each exceeding 8,000 square feet of floor space if the Planning Director or Hearings Body finds: 1. That the intended customers for the proposed use will come from the community and surrounding rural area, or the use will meet the needs of the people passing through the area. For the purposes of DCC 18.108.110, the surrounding rural area shall be that area identified as all property within five miles of the boundary of the Sunriver Urban Unincorporated Community; 2. The use will primarily employ a work force from the community and surrounding rural area; and 3. That it is not practical to locate the use in a building or buildings under 8,000 square feet of floor space. E. Height Regulations. No building or structure shall be hereafter erected, enlarged or structurally altered to exceed 45 feet in height. F. Lot Requirements. The following lot requirements shall be observed: 1. Lot Area. No requirements. 2. Lot Width. No requirements. 3. Lot Depth. Each lot shall have a minimum depth of 100 feet. 4. Front Yard. The front yard shall be a minimum of 25 feet. Chapter 18.108 2 (3/2021) EXHIBIT F TO ORDINANCE NO. 2021-004 5. Side Yard. No side yard required, except when adjoining a lot in an RS or RM District and then the required side yard shall be 50 feet. No side yards are required on the side of a building adjoining a railroad right of way. 6. Rear Yard. No rear yard required, except when adjoining a lot in an RS or RM District and then the rear yard shall be 50 feet. No rear yard is required on the side of a building adjoining a railroad right of way. 7. Lot Coverage. The maximum lot coverage by buildings and structures shall be 50 percent of the total lot area. G. Special Requirements for Employee Housing 1. The following definitions shall apply to DCC 18.108.110(A)(10): "Employee" shall mean a person who earns a living by working in the hospitality, food and beverage, outdoor recreation or tourism industry (i) in or within two (2) miles of the Sunriver Urban Unincorporated Community Boundary, or (ii) at Mt. Bachelor Ski and Summer Resort. "Employer" shall mean a person or entity who employs at least 50 full- or part-time Employees, as defined above, within the Sunriver Urban Unincorporated Community. "Employee Housing Structure" shall mean a dormitory or similar dwelling structure whose sole purpose is to serve the housing needs of Employees, and the occupancy of which is restricted to Employees. For the purposes of this section, "dormitory" is defined as a building primarily providing sleeping and residential quarters for large numbers of people, and may include common areas and kitchen facilities. 2. Employee's spouse, partner and minor children shall only be allowed if compelled by either state or federal law. 3. Employee Housing Structures must be owned and operated by an Employer. 4. Employees, as defined above, who are not employed by an Employer, as defined above, shall only be permitted to reside in an Employee Housing Structure if the Employee's employer has a signed housing agreement with the Employer operating the Structure. 5. Parking Requirements. Employee Housing Structures must provide as a minimum one vehicular parking space for every 3 beds provided, and bicycle parking for at least one space for every two beds provided. a. For Employee Housing Structures constructed in one or more phases, the parking requirements may be reduced to no fewer than one space for every six beds if the applicant demonstrates at the time of site plan approval that a lesser parking ratio will continue to provide adequate parking as required by DCC 18.116.030(D)(9). (Oi d -20 7 1004 §6 s02 ] Ord. 2020-001 §12, 2020; Ord. 2020-004 §1, 2020; Ord. 2019-008 §1, 2019; Ord. 2016-015 §9, 2016; Ord. 2015-004 §9; 2015; Ord. 2012-002 §1, 2012; Ord. 97-078 §2, 1997) Chapter 18.108 3 (3/2021) EXHIBIT F TO ORDINANCE NO. 2021-004 Chapter 18.116. SUPPLEMENTARY PROVISIONS 18.116.330 18.116.340 Marijuana Production, Processing, anti Retailingnn�lhc)lsalltt Marijuana Production Registered by the Oregon Health Authority (OHA) 18.116.330. Marijuana Production, Processing, yarn Retailing„daya 1)x ll A. Applicability. Section 18.116.330 applies to: 1. Marijuana Production in the EFU, MUA-10, and RI zones, subject to< l ind use Teryn t. :ipplieci for from 1, 2016 to March 31. 2021 1a1l.ualdale f1 l? as it will be the effective dateof'the Ordinance adopttintt this pio_potcd text amendment], so long .assaid permit vas t )prov d and the use \\ts iliti [led pur su<(nt10 Dal 22.36New I lnd use perm its _for ar�tria0 ri piochtction In aforementioned zone lle prohibited byOrdinance No. 2021 00,}. 2,-,._Marijuana Processing in the EFU, MUA-10, TeC, TeCR, TuC, TuI, RI, and SUBP zones, subject lo a. land 1pp11cd lol_from July 1 2016 to March 31, 210211actual date !1 1i as It will be the effective date or the Otdln 1nccidopting thisTruosedtext mendme-ntj so long s sitid permit 11 Isa111)10Ved and ihc use Was pursuant to I>(v' 22.36. New land use_pe(mits for ima ILiana p ocessin<zin aloremention .d zones are prohibited b4 Drdinu1ceNo 2021 00 3. Marijuana Retailing in the RSC, TeC, TeCR, TuC, TuI, RC, RI, SUC, SUTC, and SUBP zones. 4. Marijuana Wholesaling in the RSC, TeC, TeCR, TuC, RC, SUC, and SUBP zones. B. f ontinued nlnri )I n l_pl odue lion imd rtRirtititIlln processing. lonw':. as the pcei mit was approved and tlicuu WaS 0011ti-tltedd1ulsl Ini tofi( ( 2_36 marijuana p10(1L1 :ion ,atrdl)l0ec silt i s�rb�. i ICl I mild use pe'rmils milled rot rroi I J11 Irj I 016 to Vlarcil JI 021 I dual pe t. i lTtf Ccb It Gti}tI be the effective e. date of the Ordinance adopting this text W11Lndlnentlm_ y continue: its nonconlonning 11 CSANIluaat_to i)( _(1 t 120 (110 Prior to the uu11 1110n oi._1;hex use, said hind_ use pernmits may only he modilled ptur0l irttto the L1 iteria established by l)C. 2 3(> 0/10, Modification or Approval. A change in ownership alit Its with a land 11SC_ hermit for marijuanaxroduction or processiftg, or a change In ownershlp_ofa business engaged in marijuana production or_p oc s_in,_µ, shall_not be deemed achu1< _of circumstances revirin tl m dillicition of p1411oval pu scant to X (" r' s6.O40 oran alteration of it uonconlotnlin4 use pursuant to l)(r.18.120.010. /v_change In loci:IIion for 1 mai-Owannaproductiont or. processing use is prohibited by l)('(_( 18 120_010and DCC 22 36,0+0 as any location change will have a Lreatter adverse impact on the ne i_ghborhood and/or significantldditi anal impacts on slriollndill0Jlrot)crtILLIrn addition to conditions ol Ipprcw II specified ini c leh ItanduIL flu nli1, the rollo Ind standards shall govern continued marijuana production and.t2ioe e ssindI Witit ,iuutta pfotli ?-n-a 11-l_iittat rill tia-rec r..tt4nt.--/-rii ij-it-itt 3-a-1YFoditetto-n--[rind-i rc gi-itti tt 1. Minimum Lot Area. a. In the EFU and MUA-10 zones, the subject legal lot of record shall have a minimum lot area of five (5) acres. 2. Indoor Production and Processing. a. In the MUA-10 zone, marijuana production and processing shall be located entirely within one or more fully enclosed buildings with conventional or post framed opaque, rigid walls and roof covering. Use of greenhouses, hoop houses, and similar non -rigid structures is prohibited. Chapter 18.116 (3/2021) EXHIBIT G TO ORDINANCE NO. 2021-004 b. In the EFU zone, marijuana production and processing shall only be located in buildings, including greenhouses, hoop houses, and similar structures. c. In all zones, marijuana production and processing are prohibited in any outdoor area. 3. Maximum Mature Plant Canopy Size. In the EFU zone, the maximum canopy area for mature marijuana plants shall apply as follows: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres to less than 20 acres in lot area: 5,000 square feet. The maximum canopy area for mature marijuana plants may be increased to 10,000 square feet upon demonstration by the applicant to the County that: i. The marijuana production operation was lawfully established prior to January 1, 2015; and ii. The increased mature marijuana plant canopy area will not generate adverse impact of visual, odor, noise, lighting, privacy or access greater than the impacts associated with a 5,000 square foot canopy area operation. c. Parcels equal to or greater than 20 acres to less than 40 acres in lot area: 10,000 square feet. d. Parcels equal to or greater than 40 acres to less than 60 acres in lot area: 20,000 square feet. e. Parcels equal to or greater than 60 acres in lot area: 40,000 square feet. 4. Maximum Building Floor Area. In the MUA-10 zone, the maximum building floor area used for all activities associated with marijuana production and processing on the subject property shall be: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres: 5,000 square feet. 5. Limitation on License/Grow Site per Parcel. No more than one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production or Oregon Health Authority (OHA) registered medical marijuana grow site shall be allowed per legal parcel or lot. 6. Setbacks. The following setbacks shall apply to all marijuana production and processing areas and buildings: a. Minimum Yard Setback/Distance from Lot Lines: 100 feet. b. Setback from an off -site dwelling: 300 feet. For the purposes of this criterion, an off - site dwelling includes those proposed off -site dwellings with a building permit application submitted to Deschutes County prior to submission of the marijuana production or processing application to Deschutes County. c. Exception: Any reduction to these setback requirements may be granted by the Planning Director or Hearings Body provided the applicant demonstrates the reduced setbacks afford equal or greater mitigation of visual, odor, noise, lighting, privacy, and access impacts. 7. Separation Distances. Minimum separation distances shall apply as follows: a. The use shall be located a minimum of 1,000 feet from: i. A public elementary or secondary school for which attendance is compulsory under Oregon Revised Statutes 339.010, et seq., including any parking lot appurtenant thereto and any property used by the school; ii. A private or parochial elementary or secondary school, teaching children as described in ORS 339.030(1)(a), including any parking lot appurtenant thereto and any property used by the school; iii. A licensed child care center or licensed preschool, including any parking lot appurtenant thereto and any property used by the child care center or preschool. This does not include licensed or unlicensed child care which occurs at or in residential structures;, and. A \ eistt-41 Chapter 18.116 (3/2021) EXHIBIT G TO ORDINANCE NO. 2021-004 iv. National monuments and state parks. b. For purposes of DCC 18.116.330(B)(7), all distances shall be measured from the lot line of the affected properties listed in DCC 18.116.330(B)(7)(a) to the closest point of the buildings and land area occupied by the marijuana producer or marijuana processor. c. A change in use of another property to those identified in DCC 18.116.330(B)(7) shall not result in the marijuana producer or marijuana processor being in violation of DCC 18.116.330(B)(7) if the use is: i. Pending a local land use decision; ii. Licensed or registered by the State of Oregon; or iii. Lawfully established. 8. Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana plants shall comply with the following standards. a. Have frontage on and legal direct access from a constructed public, county, or state road; or b. Have access from a private road or easement serving only the subject property. c. If the property takes access via a private road or easement which also serves other properties, the applicant shall obtain written consent to utilize the easement or private road for marijuana production access from all owners who have access rights to the private road or easement. The written consent shall: i. Be on a form provided by the County and shall contain the following information; ii. Include notarized signatures of all owners, persons and properties holding a recorded interest in the private road or easement; iii. Include a description of the proposed marijuana production or marijuana processing operation; and iv. Include a legal description of the private road or easement. 9. Lighting. Lighting shall be regulated as follows: a. Inside building lighting, including greenhouses, hoop houses, and similar structures, used for marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day. b. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light -emitting part. c. Light cast by exterior light fixtures other than marijuana grow lights shall comply with DCC 15.10, Outdoor Lighting Control. 10. Odor. As used in DCC 18.116.330(B)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors' use and enjoyment of their property. c. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. d. The odor control system shall: i. Consist of one or more fans. The fan(s) shall be sized for cubic feet per minute (CFM) equivalent to the volume of the building (length multiplied by width multiplied by height) divided by three. The filter(s) shall be rated fdr the required CFM; or Chapter 18.116 (3/2021) EXHIBIT G TO ORDINANCE NO. 2021-004 ii. Utilize an alternative method or technology to achieve equal to or greater odor mitigation than provided by (i) above. e. The system shall be maintained in working order and shall be in use. 11. Noise. Noise produced by marijuana production and marijuana processing shall comply with the following: a. Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. b. Sustained noise from marijuana production is exempt from protections of DCC 9.12 and ORS 30.395, Right to Farm. Intermittent noise for accepted farming practices is permitted. 12. Screening and Fencing. The following screening standards shall apply to greenhouses, hoop houses, and similar non -rigid structures and land areas used for marijuana production and processing: a. Subject to 18.84, Landscape Management Combining Zone approval, if applicable. b. Fencing shall be finished in a muted earth tone that blends with the surrounding natural landscape and shall not be constructed of temporary materials such as plastic sheeting, hay bales, tarps, etc., and shall be subject to DCC 18.88, Wildlife Area Combining Zone, if applicable. c. Razor wire, or similar, shall be obscured from view or colored a muted earth tone that blends with the surrounding natural landscape. d. The existing tree and shrub cover screening the development from the public right-of- way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. 13. Water. The applicant shall provide: a. A copy of a water right permit, certificate, or other water use authorization from the Oregon Water Resource Department; or b. A statement that water is supplied from a public or private water provider, along with the name and contact information of the water provider; or c. Proof from the Oregon Water Resources Department that the water to be used is from a source that does not require a water right. 14. Fire protection for processing of cannabinoid extracts. Processing of cannabinoid extracts shall only be permitted on properties located within the boundaries of or under contract with a fire protection district. 15. Utility Verification. A statement from each utility company proposed to serve the operation, stating that each such company is able and willing to serve the operation, shall be provided. 16. Security Cameras. If security cameras are used, they shall be directed to record only the subject property and public rights -of -way, except as required to comply with requirements of the OLCC or the OHA. 17. Secure Waste Disposal. Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee or OHA Person Responsible for the Grow Site (PRMG). 18. Residency. In the MUA-10 zone, a minimum of one of the following shall reside in a dwelling unit on the subject property: a. An owner of the subject property; b. A holder of an OLCC license for marijuana production, provided that the license applies to the subject property; or Chapter 18.116 (3/2021) EXHIBIT G TO ORDINANCE NO. 2021-004 c. A person registered with the OHA as a person designated to produce marijuana by a registry identification cardholder, provided that the registration applies to the subject property. 19. Nonconformance. All medical marijuana grow sites lawfully established prior to June 8, 2016 by the Oregon Health Authority shall comply with the provisions of DCC 18.116.330(B)(9) by September 8, 2016 and with the provisions of DCC 18.116.330(B)(10- 12, 16, 17) by December 8, 2016. 20. Prohibited Uses. a. In the EFU zone, the following uses are prohibited: i. A new dwelling used in conjunction with a marijuana crop; ii. A farm stand, as described in ORS 215.213(1)(r) or 215.283(1)(o), used in conjunction with a marijuana crop; A commercial activity, as described in ORS 215.213(2)(c) or 215.283(2)(a), carried on in conjunction with a marijuana crop; and G+r;iv tlq__ Agri -tourism and other commercial events and activities in conjunction with a marijuana crop. b. In the MUA-10 Zone, the following uses are prohibited: i. Commercial activities in conjunction with farm use when carried on in conjunction with a marijuana crop. c. In the EFU, MUA-10, and Rural Industrial zones, the following uses are prohibited on the same property as marijuana production: i. Guest Lodge. ii. Guest Ranch. iii. Dude Ranch. iv. Destination Resort. v. Public Parks. vi. Private Parks. vii. Events, Mass Gatherings and Outdoor Mass Gatherings. viii. Bed and Breakfast. ix. Room and Board Arrangements. C. Marijuana Retailing. Marijuana retailing, including recreational and medical marijuana sales, shall be subject to the following standards and criteria: 1. Hours. Hours of operation shall be no earlier than 9:00 a.m. and no later than 7:00 p.m. on the same day. 2. Odor. The building, or portion thereof, used for marijuana retailing shall be designed or equipped to prevent detection of marijuana plant odor off premise by a person of normal sensitivity. 3. Window Service. The use shall not have a walk-up or drive-thru window service. 4. Secure Waste Disposal. Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee or OHA registrant. 5. Minors. No person under the age of 21 shall be permitted to be present in the building, or portion thereof, occupied by the marijuana retailer, except as allowed by state law. 6. Co -Location of Related Activities and Uses. Marijuana and tobacco products shall not be smoked, ingested, or otherwise consumed in the building space occupied by the marijuana retailer. In addition, marijuana retailing shall not be co -located on the same lot or parcel or within the same building with any marijuana social club or marijuana smoking club. 7. Separation Distances. Minimum separation distances shall apply as follows: a. The use shall be located a minimum of 1,000 feet from: i. A public elementary or secondary school for which attendance is compulsory under Oregon Revised Statutes 339.010, et seq., including any parking lot appurtenant thereto and any property used by the school; Chapter 18.116 (3/2021) EXHIBIT G TO ORDINANCE NO. 2021-004 ii. A private or parochial elementary or secondary school, teaching children as described in ORS 339.030(1)(a), including any parking lot appurtenant thereto and any property used by the school; iii. A licensed child care center or licensed preschool, including any parking lot appurtenant thereto and any property used by the child care center or preschool. This does not include licensed or unlicensed family child care which occurs at or in residential structures; -A yau+11 iv. National monuments and state parks; and vi. Any other marijuana retail facility licensed by the OLCC or marijuana dispensary registered with the OHA. b. For purposes of DCC 18.116.330(B)(7), distance shall be measured from the lot line of the affected property to the closest point of the building space occupied by the marijuana retailer. For purposes of DCC 18.116.330(B)(7)(a)( vi), distance shall be measured from the closest point of the building space occupied by one marijuana retailer to the closest point of the building space occupied by the other marijuana retailer. c. A change in use to another property to a use identified in DCC 18.116.330(B)(7), after a marijuana retailer has been licensed by or registered with the State of Oregon shall not result in the marijuana retailer being in violation of DCC 18.116.330(B)(7). D. Annual Reporting 1. An annual report shall be submitted to the Community Development Department by the real property owner or licensee, if different, each February 1, documenting all of the following as of December 31 of the previous year, including the applicable fee as adopted in the current County Fee Schedule and a fully executed Consent to Inspect Premises form: a. Documentation demonstrating compliance with the: i. Land use decision and permits. ii. Fire, health, safety, waste water, and building codes and laws. iii. State of Oregon licensing requirements. b. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC 18.116. 330(C)(1)(a) shall serve as acknowledgement by the real property owner and licensee that the otherwise allowed use is not in compliance with Deschutes County Code; authorizes permit revocation under DCC Title 22, and may be relied upon by the State of Oregon to deny new or license renewal(s) for the subject use. c. Other information as may be reasonably required by the Planning Director to ensure compliance with Deschutes County Code, applicable State regulations, and to protect the public health, safety, and welfare. d. Marijuana Control Plan to be established and maintained by the Community Development Department. e. Conditions of Approval Agreement to be established and maintained by the Community Development Department. f. This information shall be public record subject to ORS 192.502(17). (Ord 22021-004 7 20 )1 Ord. 2020-007 §16, 2020; Ord. 2019-012, 2019; Ord. 2018-012 §3, 2018; Ord. 2016-015 §10, 2016) 18.116.340. Marijuana Production Registered by the Oregon Health Authority (OHA) A. Applicability. Section 18.116.340 applies to: 1. All marijuana production registered by OHA prior to June 1, 2016; and 2. All marijuana production registered by OHA on or after June 1 2016 until the effective date Chapter 18.116 (3/2021) EXHIBIT G TO ORDINANCE NO. 2021-004 of Ordinances 2016-015, 2016-16, 2016-17, and 2016-18, at which time Ordinances 2016- 015 through Ordinance 2016-018 shall apply. B. All marijuana production registered by OHA prior to June 1, 2016 shall comply with the following standards by September 15, 2016: 1. Lighting. Lighting shall be regulated as follows: a. Inside building lighting, including greenhouses, hoop houses, and similar structures, used for marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day. b. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light -emitting part. c. Light cast by exterior light fixtures other than marijuana grow lights shall comply with DCC 15.10, Outdoor Lighting Control. C. All marijuana production registered by OHA prior to June 1, 2016 shall comply with the following standards by December 15, 2016: 1. Odor. As used in DCC 18.116.330(B)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors' use and enjoyment of their property. c. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. d. The odor control system shall: i. Consist of one or more fans. The fan(s) shall be sized for cubic feet per minute (CFM) equivalent to the volume of the building (length multiplied by width multiplied by height) divided by three. The filter(s) shall be rated for the required CFM; or ii. Utilize an alternative method or technology to achieve equal to or greater odor mitigation than provided by i. above. e. The system shall be maintained in working order and shall be in use. 2. Noise. Noise produced by marijuana production and marijuana processing shall comply with the following: a. Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. b. Sustained noise from marijuana production is not subject to the Right to Farm protections in DCC 9.12 and ORS 30.395. Intermittent noise for accepted farming practices is however permitted. 3. Screening and Fencing. The following screening standards shall apply to greenhouses, hoop houses, and similar non -rigid structures and land areas used for marijuana production and processing: a. Subject to DCC 18.84, Landscape Management Combining Zone approval, if applicable. b. Fencing shall be finished in a muted earth tone that blends with the surrounding natural landscape and shall not be constructed of temporary materials such as plastic sheeting, Chapter 18.116 (3/2021) EXHIBIT G TO ORDINANCE NO. 2021-004 hay bales, tarps, etc., and shall be subject to DCC 18.88, Wildlife Area Combining Zone, if applicable. c. Razor wire, or similar, shall be obscured from view or colored a muted earth tone that blends with the surrounding natural landscape. d. The existing tree and shrub cover screening the development from the public right-of- way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. 4. Water. The applicant shall provide: a. A copy of a water right permit, certificate, or other water use authorization from the Oregon Water Resource Department; or b. A statement that water is supplied from a public or private water provider, along with the name and contact information of the water provider; or c. Proof from the Oregon Water Resources Department that the water to be used is from a source that does not require a water right. 5. Security Cameras. If security cameras are used, they shall be directed to record only the subject property and public rights -of -way, except as required to comply with requirements of the OLCC or the OHA. 6. Secure Waste Disposal. Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee or OHA Person Responsible for the Grow Site (PRMG). 7. Inspections and Annual Reporting. All marijuana production registered by OHA prior to June 1, 2016 shall comply with DCC 18.116.340(D)(8) when site locations are identified or otherwise disclosed by the State of Oregon. D. All new marijuana production registered by OHA on or after June 1, 2016 shall comply with DCC 18.116.340(A-C) and the following standards: 1. Shall only be located in the following zones a. EFU; b. MUA-10:. or c. Rural Industrial in the vicinity of Deschutes Junction. 2. Minimum Lot Area. a. In the EFU and MUA-10 zones, the subject property shall have a minimum lot area of five (5) acres. 3. Maximum Building Floor Area. In the MUA-10 zone, the maximum building floor area used for all activities associated with medical marijuana production on the subject property shall be: a. Parcels from 5 acres to less than 10 acres in area: 2,500 square feet. b. Parcels equal to or greater than 10 acres: 5,000 square feet. 4. Setbacks. The following setbacks shall apply to all marijuana production areas and buildings: a. Minimum Yard Setback/Distance from Lot Lines: 100 feet. b. Setback from an off -site dwelling: 300 feet. For the purposes of this criterion, an off -site dwelling includes those proposed off - site dwellings with a building permit application submitted to Deschutes County prior to submission of the marijuana production or processing application submitted to Deschutes County. c. Exception: Reductions to these setback requirements may be granted at the discretion of the Planning Director or Hearings Body provided the applicant demonstrates that the reduced setbacks afford equal or greater mitigation of visual, odor, noise, lighting, privacy, and access impacts. Chapter 18.116 (3/2021) EXHIBIT G TO ORDINANCE NO. 2021-004 5. Indoor Production and Processing. a. In the MUA-10 zone -,_marijuana production shall be located entirely within one or more fully enclosed buildings with conventional or post framed opaque, rigid walls and roof covering. Use of greenhouses, hoop houses, and similar structures is prohibited, b. In the EFU zone, marijuana production shall only be located in buildings, including greenhouses, hoop houses, and similar structures. c. In all zones, marijuana production is prohibited in any outdoor area. 6. Maximum Mature Plant Canopy Size. In the EFU zone, the maximum canopy area for mature marijuana plants shall apply as follows: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres to less than 20 acres in lot area: 5,000 square feet. The maximum canopy area for mature marijuana plants may be increased to 10,000 square feet upon demonstration by the applicant to the County that: i. The marijuana production operation was lawfully established prior to January 1, 2015; and ii. The increased mature marijuana plant canopy area will not generate adverse impact of visual, odor, noise, lighting, privacy or access greater than the impacts associated with a 5,000 square foot canopy area operation. c. Parcels equal to or greater than 20 acres to less than 40 acres in lot area: 10,000 square feet. d. Parcels equal to or greater than 40 acres to less than 60 acres in lot area: 20,000 square feet. e. Parcels equal to or greater than 60 acres in lot area: 40,000 square feet. 7. Separation Distances. Minimum separation distances shall apply as follows: a. The use shall be located a minimum of 1.000 feet from: is A public elementary or secondary school for which attendance is compulsory under Oregon Revised Statutes 339.010. et seq., including any parking lot appurtenant thereto and any property used by the school; ii. A private or parochial elementary or secondary school, teaching children as described in ORS 339.030(1)(a), including any parking lot appurtenant thereto and any property used by the school; iii. A licensed child care center or licensed preschool, including any parking lot appurtenant thereto and any property used by the child care center or preschool. This does not include licensed or unlicensed child care which occurs at or in residential structures:_, an 1 K11-14apt E i \--€� ffit 1: iv. National monuments and state parks. b. For purposes of DCC 18.116.330(B)(7), all distances shall be measured from the lot line of the affected properties listed in DCC 18.116.330(B)(7)(a) to the closest point of the buildings and land area occupied by the marijuana producer or marijuana processor. c. A change in use of another property to those identified in DCC 18.116.330(B)(7) shall not result in the marijuana producer or marijuana processor being in violation of DCC 18.116.330(B)(7) if the use is: i. Pending a local land use decision: ii. Registered by the State of Oregon: or iii. Lawfully established. 8. Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana plants shall comply with the following standards. Chapter 18.116 (3/2021) EXHIBIT G TO ORDINANCE NO. 2021-004 a. Have frontage on and legal direct access from a constructed public, county, or state road; or b. Have access from a private road or easement serving only the subject property. c. If the property takes access via a private road or easement which also serves other properties, the applicant shall obtain written consent to utilize the easement or private road for marijuana production access from all owners who have access rights to the private road or easement. The written consent shall: i. Be on a form provided by the County and shall contain the following information:, ii. Include notarized signatures of all owners, persons and properties holding a recorded interest in the private road or easement; iii. Include a description of the proposed marijuana production or marijuana processing operation; and iv. Include a legal description of the private road or easement. 9. Residency. In the MUA-10 zone, a minimum of one of the following shall reside in a dwelling unit on the subject property: a. An owner of the subject property; or b. A person registered with the OHA as a person designated to produce marijuana by a registry identification cardholder, provided that the registration applies to the subject property. 10. Annual Reporting. An annual report shall be submitted to the Community Development Department by the real property owner or licensee, if different, each February 1, documenting all of the following as of December 31 of the previous year, including the applicable fees as adopted in the current County Fee Schedule and a fully executed Consent to Inspect Premises form: a. Documentation demonstrating compliance with the: i. Land use decision and permits. ii. Fire, health, safety, waste water, and building codes and laws. iii. State of Oregon licensing requirements. b. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC 18.116.330(0(1)(a) shall serve as acknowledgement by the real property owner and licensee that the otherwise allowed use is not in compliance with Deschutes County Code; authorizes permit revocation under DCC Title 22, and may be relied upon by the State of Oregon to deny new or license renewal(s) for the subject use. c. Other information as may be reasonably required by the Planning Director to ensure compliance with Deschutes County Code, applicable State regulations, and to protect the public health, safety, and welfare. d. Marijuana Control Plan to be established and maintained by the Community Development Department. e. Conditions of Approval Agreement to be established and maintained by the Community Development Department. f. This information shall be public record subject to ORS 192.502(17). 11. Prohibited Uses. a. In the EFU zone, the following uses are prohibited:; i. A new dwelling used in conjunction with a marijuana crop ii. A farm stand, as described in ORS 215.213(1)(r) or 215.283(1)(o), used in conjunction with a marijuana crop; iii. A commercial activity, as described in ORS 215.213(2)(c) or 215.283(21)(a), carried on in conjunction a marijuana crop; and. Chapter 18.116 (3/2021) EXHIBIT G TO ORDINANCE NO. 2021-004 iv. Agri -tourism and other commercial events and activities in conjunction with a marijuana crop. b. In the MUA-10 Zone, the following uses are prohibited: i. Commercial activities in conjunction with farm use when carried on in. conjunction with a marijuana crop. c. In the EFU, MUA-10, and Rural Industrial zones, the following uses are prohibited on the same property as marijuana production: i. Guest Lodge. ii. Guest Ranch. iii. Dude Ranch. iv. Destination Resort. v. Public Parks. vi. Private Parks. vii. Events, Mass Gatherings and Outdoor Mass Gatherings. viii. Bed and Breakfast. ix. Room and Board Arrangements. (Ord 2021 7. 2071Ord. 2019-012, 2019; Ord. 2018-012 §3, 2018; Ord. 2016-019 §1, 2016) Chapter 18.116 (3/2021) EXHIBIT G TO ORDINANCE NO. 2021-004 FINDINGS I. BACKGROUND A. Deschutes County Marijuana Regulation History Following the passage of Ballot Measure 91 (2014), legalizing the sale and recreational use of marijuana, and HB 3400 (2015), refining the implementation of marijuana legalization, the Deschutes County Board of Commissioners (Board) adopted marijuana regulations in June 2016 (Ordinance Nos. 2016-013, 2016-014, 2016- 015, 2016-017, 2016-018, and 2016-019). Following their initial adoption, the Board committed to reexamine Deschutes County's marijuana land use regulations post -implementation after gaining additional experience regulating the evolving marijuana industry. Deschutes County utilized extensive resources from 2017 to 2019 to attempt to develop reasonable time, place, and manner marijuana regulations. During this time, citizens on all sides of the issue vocally expressed their dissatisfaction, consistently expressing doubt that Deschutes County's regulations have the ability to successfully harmonize ostensibly incompatible land uses in the rural County due to marijuana's classification as a farm crop. B. Opt Out Ordinances On August 19, 2019, the Board adopted by emergency Ordinance No. 2019-014, which prohibited the establishment of future (new) marijuana production and processing businesses in unincorporated Deschutes County (commonly referred to as an Opt Out). Ordinance No. 2019-015, adopted on October 16, 2019, further clarified that Ordinance No. 2019-014 has no impact on the County's past marijuana production land use decisions and does not preclude those applicants from moving forward in the licensure process with the Oregon Liquor Control Commission (OLCC). Oregon law (ORS 475B.968) provides that Deschutes County may adopt ordinances prohibiting marijuana businesses, but must then refer the matter to County electors at the next statewide general election. On November 3, 2020, Ballot Measure 9-134 asked voters if they wanted to repeal the opt -out ordinances. As the ballot measure was phrased, a "yes" vote would once again allow new marijuana production and processing businesses in Deschutes County, and a "no" vote would continue to prohibit new marijuana production and processing businesses in Deschutes County. Ultimately, 57% of Deschutes County's electorate voted "no" to Measure 9-134, thereby upholding the opt -out and prohibiting future/new commercial marijuana production and processing businesses from being established in the unincorporated County. II. PROPOSAL This is a legislative text amendment to Deschutes County Code (DCC), Title 18, County Zoning. The primary purpose of the amendments is to reflect and clarify the changes required by Ballot Measure 9-134. The proposal addresses in DCC 18.116.330(A), marijuana production and processing land use permits that were issued from July 1, 2016 to the effective date of Ordinance No. 2021-004. Specifically, it clarifies that marijuana production and processing subject to land use permits applied for from July 1, 2016 to the effective date of Ordinance No. 2021-004, in which the use has been initiated pursuant to Deschutes County Code Chapter 22.36, may continue as nonconforming uses pursuant to DCC 18.120.010, which includes criteria for alterations. Marijuana production or processing land use permits where the use has not yet been initiated may only be modified pursuant to the criteria established by DCC 22.36.040, Modification of Approval. Page 1 of 5 - EXHIBIT H TO ORDINANCE NO. 2021-004 The proposal clarifies that a change in ownership of a land use permit issued for marijuana production or processing does not require a modification of approval or an alteration of a nonconforming use. A change in location for a land use permit issued for marijuana production or processing is prohibited. The proposal also removes marijuana production and/or processing as permitted or conditional uses in DCC 18.16.020 and 18.16.025, Exclusive Farm Use; DCC 18.32.030, Multiple Use Agricultural Zone; DCC 18.66.040 and 18.66.050, Terrebonne Rural Commercial Districts; DCC 18.67.040 and 18.67.060, Tumalo Rural Commercial and Industrial Districts; DCC 18.100.010 and 18.100.020, Rural Industrial Zone; and DCC 18.108.110, Sunriver Business Park. The proposal removes the youth activity center separation distance criterion in DCC 18.116.030(B)(7), 18.116.030(C)(7) and 18.116.030(D)(7). The Oregon Court of Appeals in Waveseer of Oregon, LLC. v. Deschutes County, 308 Or App 494 (2021) determined that the County's prevailing interpretation of the 'youth activity center' phrase violated ORS 197.835(10)(a) because there is no way for an applicant to determine if a particular EFU-zoned property would likely qualify for marijuana production. County staff recommends simply deleting the phrase because the issue is unlikely to come up again and because it is likely that any subsequent 'youth activity center' interpretation will equally run afoul of the aforementioned statute. III. REVIEW CRITERIA Deschutes County lacks specific criteria in DCC Titles 18, 22, or 23 for reviewing a legislative plan amendment. Nonetheless, since Deschutes County is initiating one, the County bears the responsibility for justifying that the amendments are consistent with Statewide Planning Goals and its existing Comprehensive Plan. A. Statewide Planning Goals and Guidelines Goal 1: Citizen Involvement: The amendments do not propose to change the structure of the County's citizen involvement program. Notice of the proposed amendments were provided to the Bulletin for the Board public hearing. Goal 2: Land Use Planning: This goal is met because ORS 197.610 allows local governments to initiate post acknowledgments plan amendments (PAPA). An Oregon Land Conservation and Development Department 35-day notice was initiated on February 24, 2021. The Board will hold a public hearing on March 31, 2021. The Findings document provides the adequate factual basis for the amendments. Goal 3: Agricultural Lands: Ballot Measure 91 was passed by the voters of Oregon in November 2014 generally legalizing recreational use of marijuana within the state. The Board adopted Ordinance No. 2015-009 on December 21, 2015, prohibiting the establishment of marijuana businesses within unincorporated Deschutes County (Opt Out). After securing legislative assurance in 2016 through the passage of Senate Bill 1598 that statutory right to farm protections would not override local governments' authority to adopt local time, place and manner regulations governing marijuana businesses, the Board adopted Ordinances No. 2016- 013, 2016- 014, 2016- 015, 2016- 016, 2016- 017, 2016- 018 and 2016- 019 on June 1 and June 15, 2016, implementing comprehensive land use regulations for the marijuana industry in unincorporated Deschutes County, and subsequently adopted Ordinance No. 2016- 012 on August 2, 2016, effectively " Opting In" by repealing Ordinance No. 2015- 009. On August 19, 2019, the Board adopted by emergency Ordinance No. 2019-014, which prohibited the establishment of future marijuana production and processing businesses in unincorporated Deschutes County Page 2 of 5 - EXHIBIT H TO ORDINANCE NO. 2021-004 (Opt Out). Ordinance No. 2019-015, adopted on October 16, 2019, further clarified that Ordinance No. 2019-014 has no impact on the County's past marijuana production land use decisions and does not preclude those applicants form moving forward in the licensure process with OLCC. Oregon law (ORS 475B.968) provides that Deschutes County may adopt ordinances prohibiting marijuana businesses, but must then refer the matter to County electors at the next statewide general election. On November 3, 2020, Ballot Measure 9-134 asked voters if they wanted to repeal the opt -out ordinances. As the ballot measure was phrase specific, a "yes" vote would once again allow new marijuana production and processing businesses in Deschutes County, and a "no" vote would continue to prohibit new marijuana production and processing businesses in Deschutes County. Ultimately, 57% of Deschutes County's electorate voted "no" to Measure 9-134, thereby upholding the opt -out and prohibiting future/new commercial marijuana production and processing businesses from being established in the unincorporated County. Opting out is not in conflict with the aforementioned Ballot Measure 91 because the voters of Oregon expressed no opinion or direction regarding marijuana's status as a farm crop, or the appropriate location of commercial grow sites and processing operations. Opting out is not inconsistent with Goal 3: pursuant to the options provided by Ballot Measure 91 and state statutes, numerous jurisdictions in Oregon opted out of allowing marijuana businesses at the outset of Oregon's recreational marijuana program and have lawfully maintained that status. The Opt Out and these corresponding amendments only impact future recreational production and processing businesses and medical marijuana processing facilities. Existing marijuana businesses will not be impacted nor will the Opt Out impact or prohibit future medical dispensaries or production sites, or future recreational retail or wholesale. The proposed amendments to the County Code are consistent with these provisions of state law and are therefore Goal consistent with Audi 3. Goal 4: Forest Lands: The proposed text amendments do not propose to change the County's Plan policies or implementing regulations for compliance with Goal 4, and therefore are in compliance. Goal 5: Open Spaces, Scenic and Historic Areas, and Natural Resources: Complies because the text amendment does not propose to change the County's Plan policies or implementing regulations for Goal 5 open spaces, scenic and historic areas, and natural resources. Goal 6: Air, Water and Land Resources Quality: The proposed text amendments do not propose to change the County's Plan policies or implementing regulations for compliance with Goal 6, and therefore are in compliance. Goal 7: Areas Subject to Natural Disasters and Hazards: The proposed text amendments do not propose to change the County's Plan or implementing regulations regarding natural disasters and hazards; therefore, they are in compliance. Goal 8: Recreational Needs: Complies because the text amendment does not propose to change the County's Plan or implementing regulations regarding recreational needs. Goal 9: Economy of the State: Goal 9 and its implementing regulations focus on economic analysis and economic development planning required in urban Comprehensive Plans. The proposed amendments apply to rural lands but do not propose to amend the Comprehensive Plan. Goal 9 does identify land use controls and ordinances as one of a suite of economic development tools. Disallowing future recreational production sites and future marijuana processing will not impact the availability of marijuana products from medical dispensaries or retail and Page 3 of 5 - EXHIBIT H TO ORDINANCE NO. 2021-004 wholesale outlets. Maintaining the assortment of land uses that are allowed in Deschutes County contributes to a diverse economy. Therefore, the text amendment complies with Goal 9. Goal 10: Housing: This goal is not applicable because, unlike municipalities, unincorporated areas are not obligated to fulfill certain housing requirements. Goal 11: Public Facilities and Services: Complies because the text amendments do not propose to change the County's Plan or implementing regulations regarding public facilities and services. Goal 12: Transportation: The proposed text amendments do not propose to change the County's Plan or implementing regulations regarding the Transportation System Plan; therefore, they are in compliance. Goal 13: Energy Conservation: Complies because the text amendments do not propose to change the County's Plan or implementing regulations regarding energy conservation. Goal 14: Urbanization: Complies because the text amendments do not propose to change the County's Plan or implementing regulations regarding urbanization. Goals 15 through 19 are not applicable to the proposed text amendments because the County does not contain these types of lands. D. Deschutes County Comprehensive Plan Chapter 1, Comprehensive Planning: This chapter sets the Goals and Policies of how the County will involve the community and conduct land use planning. As described above, the proposed regulations were discussed at several work sessions with the Board of County Commissioners, as well as presented to the Planning Commission, which is the County's official committee for public involvement. The Board of County Commissioners ;Ad!! receive oral and written testimony. These actions also satisfy the Goals and relevant Policies of Section 1.3, Land Use Planning Policies. Goal 1 of this section is to "maintain an open and public land use process in which decisions are based on the objective evaluation of facts." Staff, the Planning Commission, and the Board reviewed the text amendments. Chapter 2, Resource Management: This chapter sets the Goals and Policies of how the County will protect resource lands, including but not limited to, Agriculture and Forest as well as Water Resources and Environmental Quality. Section 2.2, Agricultural Lands Policies, states that Goal 1 is to "preserve and maintain agricultural lands and the agricultural industry." The Opt Out and these corresponding amendments only impact future recreational production and processing businesses and medical marijuana processing facilities. Existing marijuana businesses will not be impacted nor will the Opt Out impact or prohibit future medical dispensaries or production sites, or future recreational retail or wholesale. Goal 2 promotes a diversified, sustainable, revenue -generating agricultural sector. Policy 2.2.10 calls for the promotion of economically viable opportunities and practices while Policy 2.2.11 encourages small farming enterprises including but not limited to, niche markets and organic farming and valued -added projects. The proposed text amendments only impact future recreational production and processing businesses and medical marijuana processing facilities. Page 4 of 5 - EXHIBIT H TO ORDINANCE NO. 2021-004 Goal 3 specifies the Exclusive Farm Use (EFU) policies, classifications, and codes are consistent with local and emerging agricultural conditions and markets. The voters of Deschutes County voted "no" to repealing the opt -out ordinances on November 3, 2020. As noted above for Statewide Goal 3, opting out is permitted by state statutes; the proposed text amendments are necessary to align the Deschutes County Code land use provisions with the results of the opt out election. As noted above, the proposed amendments only impact future recreational production and processing businesses and medical marijuana processing facilities. Page 5 of 5 - EXHIBIT H TO ORDINANCE NO. 2021-004 4J ET R1- Lo 0 in 0 NI CD NI To- aj z CL w u CO a. W� zo O N V1 m 0< z 0 0 0 0 CO CD 4-4 CO4-0 CD -O N c LE o 0 o a o 4-1 , tn vco, ba c 0 = a p O c v•a c CU U � _0 _C LJ N N +' O ate+ to 'L N U CO N ca > toy' CD c N +' _ N Cr 0 N ell cJ fa N "6 N = O CO Q N' cl) E -00 CD_ CU ca v cucF co Q +-+ CO N cl Q O N O O in co" ) fa L Lo mco�O •$ _ O t O fa — c TD p �" j N a-+ p N qA 1.4 O N + c124', ' L ct ' c E p O O C_ Q . 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VI 7 LLJ Z U D • „„. „.., . . „... ..„ „.. < LU 0 I', I D ry u I LU 1.-- .:,:!,:',.: CL LU < U D 0 0 ce 1 1 0 wuJ LA 7 Ln D D LU VI U Lud' c5Z U CS LU JU °‘r 0 z uJ U LU ro o o o a) 2 .4.7; o c 0 ro To 4-j CN a>,;4' cu o o 57.65% vote BE ME SS 0 0 Lon (13 • mks Lfl (1) 92 businesses ezz 03 ro 4-0 rO (11 ESSEMEMS ro c 0 ho ave initL te• t e s CD ursuant t o 0 Li- U CO rO 43 f,..) 0 N LO u u • s crit-ri. f•ir 0 0 0 0 0 u ro 1032S003 let308 0 CI rificati• s for 0 19_ E MEE 0 0 0 0 rD 0 0 0 CD ,11 i;/ 0 IMIMMESI U 111 ESEEZZER =PS ro 000011 emememe 0 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 March 31, 2021 DATE: March 22, 2021 FROM: Anthony Raguine, Community Development, 541-617-4739 TITLE OF AGENDA ITEM: Consideration of Board Signature of Document No. 2021-261, an Improvement Agreement Associated with Westgate Subdivision Phases 5-7. RECOMMENDATION & ACTION REQUESTED: Staff recommends the Board sign Document No. 2021-261. BACKGROUND AND POLICY IMPLICATIONS: The attached staff memo explains the background. FISCAL IMPLICATIONS: The applicant submitted a bond in the amount of $1, 198,569.41 as a security for the required improvements. ATTENDANCE: Anthony Raguine, Senior Planner MEMORANDUM To: Deschutes Board of County Commissioners ("Board") From: Anthony Raguine, Senior Planner Date: March 17, 2021 Re: Improvement Agreement (247-21-000234-IA) for Westgate Subdivision Phases 5-7 Summary The Westgate development is an 85-lot subdivision approved pursuant to land use permit 247-19- 000500-MP and 247-19-000501-TP. Figure 1 below illustrates the subject property. Figure 1. Westgate Subdivision Location and Phasing Map 1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 I P.O. Box 6005, Bend, OR 97708-6005 (541) 388-6575 @cdd@deschutes.org www.deschutes.org/cd Currently, Phases 1-4 of Westgate have been platted. The developer now seeks to plat Phases 5-7, encompassing 29 Lots, which is outlined in Figure 2 below. WESTGATE PHASES 5, 6 AND 7: WESTGATE PHASES 5, 6 AND 7 1 I SITE PLAN CITY MASTER PLAN AREA 4 SHEVLIN WEST Figure 2. Westgate Subdivision Phases 5-7 CITY MASI EN PLAN AREA 3 1 OF 1 Westgate submitted the attached Improvement Agreement for the road and utility infrastructure related to Phases 5-7. The cost estimate for said improvements is $998,807.84. This estimate was reviewed and approved by the Road Department. Per Deschutes County Code 17.24.130(B), the security amount must be 120 percent of the cost estimate. For this reason, the bond submitted by Westgate is in the amount of $1,198,569.41. Requested Action Board consideration and signature of Document No. 2021-261. Attachment A. Document No. 2021-261: Improvement Agreement for Westgate Phases 5-7 2 Mailing Date: Wednesday, August 28, 2019 HEARING OFFICER DECISION FILE NUMBERS: 247-19-000500-MP, 247-19-000501-TP APPLICANT: Empire Construction, Kevin Spencer OWNER: Rio Lobo Investments, LLC LAND USE CONSULTANT: Retia Consult, LLC, Tammy Wisco, PE, AICP PROPOSAL: Applicant requested approval of a Master Plan (MP) and Tentative Plan (TP) for an 85-lot subdivision within the Westside Transect Zone. STAFF CONTACT: Jacob Ripper, AICP, Senior Planner Jacob.RipperCdeschutes.org, 541-385-1759 SUMMARY OF DECISION: Approved with conditions I. STANDARDS AND APPLICABLE CRITERIA: Deschutes County Code (DCC) Title 17, Deschutes County Subdivision and Partition Ordinance Chapter 17.12, Administration and Enforcement Chapter 17.16, Approval of Subdivision Tentative Plans and Master Development Plans Chapter 17.36, Design Standards Chapter 17.44, Park Development Chapter 17.48, Design and Construction Specifications Title 19, Deschutes County Zoning Ordinance of the Bend Urban Area Chapter 19.04, Title, Purpose, and Definitions Chapter 19.22, Westside Transect Zone (WTZ) Chapter 19.80, Off -Street Parking and Loading Chapter 19.88, Provisions Applying to Special Use Standards Chapter 19.92, Interpretations and Exceptions Title 22, Deschutes County Development Procedures Ordinance Oregon Revised Statutes (OAR) Chapter 92, Subdivisions and Partitions II. BASIC FINDINGS: LOCATION: The property subject to this decision has an assigned address of 62600 McClain Drive, Bend; and is further identified on County Assessor Tax Map 17-11, as tax lot 6000. LOT OF RECORD: The property described above was recognized as a legal lot of record pursuant to the Lot of Record Verification file no. LR-05-14. The property described above was subsequently adjusted by a Property Line Adjustment file no. 247-18-000400-LL. ZONING AND PLAN DESIGNATION: The majority of the property described above and the portion subject to this proposal (the "Subject Property') is primarily within the Westside Transect Zone ("WTZ"). There is an approximately 32-acre portion of the property described above, located in the southeastern region, that is within the Bend Urban Growth Boundary ("UGB") and is zoned Urbanizable Area ("UA"). The portion of the property described above that is within the UGB is not subject to this proposal. The entire property is within the Destination Resort (DR) Combining Zone. The Subject Property is designated as Urban Area Reserve ("UAR") in the Deschutes County Comprehensive Plan, PROPOSAL: The Applicant requested approval of a Master Plan ("MP") and Tentative Plan ("TP") for an 85-lot subdivision within the Westside Transect Zone. Proposed lots would be approximately 2.5 to 5 acres in size, with no lot being smaller than 2.5 acres. The proposed MP included open space areas and trail connections. Water would be provided from the City of Bend and each lot would have an onsite sewage disposal system. Access would be provided through an extension and connection of McClain Drive and Sage Steppe, which would be a public right-of-way. Other roads within the subdivision are proposed to be private roads. The subdivision is proposed in eight (8) phases, with nine (9) to 14 lots per phase. SITE DESCRIPTION: The property described above is approximately 335 acres in size, however, as described in the Zoning and Plan Designation section above, this proposal does not include the approximate 32-acre portion of the property that is located within the UGB. Therefore, throughout this Decision, the Subject Property shall refer only to the 303 acres which are subject to this proposal and located outside of the UGB, unless specifically stated otherwise. Deschutes County Planning Staff ("Staff') performed a site visit in the afternoon of July 9, 2019 when the weather was clear and there was good visibility. The Staff site visit consisted of a drive around the primitive loop driveway that exists on the property. The Subject Property is irregular in shape, see Figure 1 below. Topography varies across the Subject Property with a slope down towards Shevlin Park and Tumalo Creek to the west, both sloped and relatively flat areas in the center, and areas of rocky outcroppings and short cliffs in the southeast and east. Vegetation also varies across the Subject Property, with brush and grasses covering the majority of the property. Pine trees are mostly located in the eastern and northern areas, although there is a run of dispersed pine trees in the central western portion of the property as well. Views of the Cascade Range are to the west. 247-19-000500-MP, 247-19-000501-TP Page 2 of 89 MANTLE tOQi' Figure 1 - Subject Property Strut er CaRWYi Ea.pn� RlOOEtnn: ,g PtPf'� Pkrvv smtns /d PR I K P011 t10 p,vt ,HAw'K Quail Pak wp NYV:TERRA'. i2NoCN gIPA15 mna tz,v4XA tgAO erH �; lr %w011AflIlLN ;l SURROUNDING LAND USES: To the west of the Subject Property are lands owned by the Bend Parks and Recreation District ("BPRD") which include Shevlin Park, Tumalo Creek, and adjacent properties. The Subject Property is surrounded by residential development to the north, east, and south in a range of densities. Larger rural lots in the Tree Farm subdivision are to the south, while relatively smaller urban subdivision lots are in areas to the east and north. Shevlin Park Road is located approximately 0.25 miles to the northeast and Skyliners Road is located approximately 0.7 miles to the south. LAND USE HISTORY: Previous land use actions associated with the subject property are below. • MJP-85-3: Major Partition to create three parcels* • MJP-88-7: Major Partition to create three parcels* • LR-05-14: Lot of Record Verification for the subject property • CU-05-17, TP-05-958: Application for a 34-lot PUD subdivision (denied) • 247-17-000420-LL: Property Line Adjustment (void) • 247-17-001013-ZC, 1014-PA, 1015-TA: Zone Change, Plan Amendment, and Text Amendment to create the Westside Transect Zone (withdrawn) • 247-18-000400-LL: Property Line Adjustment 247-19-000500-MP, 247-19-000501-TP Page 3 of 89 • 247-18-000612-ZC, 613-PA, 614-TA: Zone Change, Plan Amendment, and Text Amendment to create and implement the Westside Transect Zone • 247-18-000957-PA, 958-ZC: Plan Amendment and Zone Change for minor adjustments of the Bend UGB *It appears these approvals were never acted upon. The Subject Property was part of a recently approved Plan Amendment, Text Amendment, and Zone Change proposal to designate certain areas west of the City of Bend as being within the Westside Transect Zone. Ordinance No. 2019-001 enacted the amendments and became effective on April 16, 2019. NOTICE REQUIREMENT: The Applicant complied with the posted notice requirements of Section 22.23.030(B) of Deschutes County Code (DCC) Title 22. The Applicant submitted a Land Use Action Sign Affidavit dated July 10, 2019, indicating the Applicant posted notice of the land use action on July 7, 2019. A Notice of Application was mailed on June 27, 2019 to surrounding property owners and affected agencies. PUBLIC COMMENTS: Notice of this application was provided to all property owners within 250 feet of the exterior boundary of the subject property. One public comment in support of the application was received from the legal counsel for the Coats family, who are the owners of the North Transect area. Additional letters were received from two attorneys involved with the proposal to create the WTZ Zone. The letters are regarding the slope setback requirement within DCC 19.22 and are quoted in findings below. Three additional comments were received from the public which addressed trails, roadways, construction traffic, and setbacks. Those topics are addressed in findings below. PUBLIC AGENCY COMMENTS: The Deschutes County Community Development Planning Division mailed notice to several agencies and received the following comments. Bend Fire Department. On July 5, 2019, Deputy Chief of Fire Protection Larry Medina responded: "FIRE APPARATUS ACCESS ROADS: • Approved vehicle access for fire fighting shall be provided to all construction or demolition sites. Vehicle access shall be provided to within 100 feet of temporary or permanent fire department connections. Vehicle access shall be provided by either temporary or permanent roads, capable of supporting vehicle loading under all weather conditions. Vehicle access shall be maintained until permanent access roads are available. 2014 OFC 3310.1. Prior to the issuance of construction permits the applicant shall provide to the City of Bend Fire Department a proposed plan for fire apparatus access to the construction site. • Approved fire apparatus access roads shall be provided for every facility, building or portion of a building hereafter constructed or moved into or within the jurisdiction. The fire apparatus access road shall comply with the requirements of this section and shall extend to within 150 feet of all portions of the facility and all portions of the exterior 247-19-000500-MP, 247-19-000501-TP Page 4 of 89 walls of the first story of the building as measured by an approved route around the exterior of the building or facility. 2014 OFC 503.1.1 Provide the City of Bend Fire Department a proposed site plan illustrating compliant fire apparatus access. • Fire apparatus roads shall have an unobstructed width of not less than 20 feet, exclusive of shoulders, except for approved security gates in accordance with Section 503.6, and an unobstructed vertical clearance of not less than 13 feet 6 inches. Where a fire hydrant is located on a fire apparatus road, the minimum width .shall be 26 feet exclusive of shoulders. Traffic calming along a fire apparatus road shall be approved by the fire code official. Approved signs or other approved notices or markings that include the words NO PARKING - FIRE LANE shall be provided for fire apparatus roads to prohibit parking on both sides of fire lanes 20 to 26 feet wide and on one side of fire lanes more than 26 feet to 32 feet wide. 2014 OFC 503.2.1, D103.1, 503.4.1, 503.3 • Fire apparatus access roads shall be designed and maintained to support the imposed loads of fire apparatus (60,000 pounds GVW) and shall be surfaced (asphalt, concrete or other approved driving surface) as to provide all weather driving capabilities. Inside and outside turning radius shall be approved by the fire department. All dead-end turnarounds shall be of an approved design. Bridges and elevated surfaces shall be constructed in accordance with AASHTO HB-17. The maximum grade of fire apparatus access roads shall not exceed 10 percent. Fire apparatus access road gates with electric gate operators shall be listed in accordance with UL325. Gates intended for automatic operation shall be designed, constructed and installed to comply with the requirements ofASTM F2200. A Knox® Key Switch shall be installed at all electronic gates. 2014 OFC D102.1, 503.2.4, • Multiple family residential developments have more than 100 dwellings and one- or two- family residential developments where the dwelling units exceed 30 shall be provided with separate and approved fire apparatus access roads. Provide a site plan to the City of Bend Fire Department illustrating a secondary access point. FiRE PROTECTION WATER SUPPLIES: • An approved water supply capable of supplying the required fire flow for fire protection shall be provided to premises upon which facilities, buildings or portions of buildings are hereafter constructed or moved into or within the jurisdiction. • Fire flow requirements for buildings or portions of buildings shall be determined by an approved method. Documentation of the available fire flow shall be provided to the fire code official prior to final approval of the water supply system. Provide the Citv of Bend Fire Department a fire flow analysis. • Where a portion of the facility or building hereafter constructed or moved into or within the jurisdiction is more than 400 feet from a hydrant on a fire apparatus road, as measured by an approved route around the exterior of the facility or building, on -site fire hydrants and mains shall be provided where required by the fire code official. For Group R-3 and Group U occupancies the distance requirement shall be 600 feet. For buildings equipped throughout with an approved automatic sprinkler system installed in accordance with Section 903.3.1.1 or 903.3.3.1.2, the distance requirement shall be 600 feet. Fire hydrants shall be provided along required fire apparatus roads and adjacent public streets. The minimum number of fire hydrants shall not be less than that listed in table C105.1 of the 2010 OFC. Existing fire hydrants on public streets are allowed to be considered as available. Existing fire hydrants on adjacent 247-19-000500-MP, 247-19-000501-TP Page 5 of 89 properties shall not be considered available unless fire apparatus access roads extend between properties and easements are established to prevent obstruction of such roads. The average spacing between fire hydrants shall not exceed that listed in table C105.1 of the 2010 OFC. Provide the City of Bend Fire Department a site plan illustrating the quantity ad locations of fire hydrants. • ORS 811.550(16) prohibits parking within 10 feet of a fire hydrant. Provide approved signs or other approved markings to prohibit parking within 10 feet of a fire hydrant. ORS 860-024- 0010 limits the placement of a fire hydrant a minimum of4 feet from any supporting structure for electrical equipment, such as transformers and poles. Maintain a minimum 4 foot clearance of fire hydrants to any supporting structure for electrical equipment. Where fire hydrants are subject to impact by a motor vehicle, guard posts or other approved means shall comply with Section 312 of the 2010 OFC. Provide a site plan that illustrates any parking restrictions. OTHER FIRE SERVICE FEATURES: • New and existing buildings shall have approved address numbers, building numbers or approved building identification placed in a position that is plainly legible and visible from the street or road fronting the property. These numbers shall be Arabic numbers or alphabetical letters. Numbers shall be a minimum 4 inches high with a minimum stroke width of 0.5 inch. Where access is by means of a private road and the building cannot be viewed from the public way, a monument, pole, or other sign or means shall be used to identify the structure. Address numbers shall be visible under low light conditions and evening hours. Provide illumination to address numbers to provide visibility under all conditions. Address signs are available through the Deschutes Rural Fire Protection District #2. An address sign application can be obtained from the City of Bend Fire Department website or by calling 547-388-6309 during normal business hours. • A KNOX-BOX® key vault is required for all newly constructed commercial buildings, facilities or premises to allow for rapid entry for emergency crews. A KNOX® Key Switch shall be provided for all electrically operated gates restricting entry on a fire apparatus access road. A KNOX® Padlock shall be provided for all manually operated gates restricting entry on a fire apparatus road and security gates restricting access to buildings." Deschutes County 9-1-1 Service District. On July 9, 2019, GIS Analyst Evan Clark responded: "The Deschutes County 9-1-1 Service District would like to submit its concern for the street names displayed on the site plan. At the southern end of the subdivision McClain Dr transitions into the existing Sage Steppe Dr from the adjacent Tree Farm subdivision. The site plan doesn't make it clear where McClain Dr will end and Sage Steppe Dr will begin. 9-1-1 would like to request that McClain Dr end at the intersection with Road 'D' and Road 'A'. At this intersection, Sage Steppe Dr would begin and continue south to the existing blocks in the Tree Farm subdivision. This request is to avoid any potential addressing conflicts that could result in the delayed response of emergency services. If this is agreed upon, we would ask that this is made clear on the site plan and annotated correctly on the subdivision plat" Deschutes County Building Division. On June 27, 2019, Building Official Randy Scheid responded: 247-19-000500-MP, 247-19-000S01-TP Page 6 of 89 "NOTICE: The Deschutes County Building Safety Divisions code mandates that Access, Egress, Setbacks, Fire & Life Safety, Fire Fighting Water Supplies, etc. must be specifically addressed during the appropriate plan review process with regard to any proposed structures and occupancies. Accordingly, all Building Code required items will be addressed, when a specific structure, occupancy, and type of construction is proposed and submitted for plan review." Deschutes County Community Development Department, Property Address Coordinator. On June 28, 2019, Property Address Coordinator Tracy Griffin responded: "Addresses to be determined when road names are assigned." Deschutes County Piannin8 Division. Senior Transportation Planner. On July 12, 2019, Senior Transportation Planner Peter Russell responded: '7 have reviewed the transmittal materials for 247-19-000500-MP/501-TP for an 85-unit subdivision on 335 acres within the Westside Transect Zone (WTZ) at 62600 McClain Drive, aka County Assessor Tax Map 17-11, Tax Lot 6000. The applicant has submitted a traffic study dated June 18, 2019, which demonstrates the current proposal is consistent with the traffic analysis done for the larger plan amendment/zone change approved under 247-18-612-ZC/613-PA/614-TA for the entire 737 acres. The mitigations required for that change from Urban Area Reserve (UAR-10) to WTZ were resolved in that 2018 decision. The current proposal does not result in any additional deficiencies in the roadway system. Deschutes County Code 17.48.050 and its Table A sets a paved width of 20' or 28' for private roads; for a 20' foot private road multiuse paths are required for narrower width. DCC 17.48.140(8)(2) states multiuse paths have a standard width of 10' and 12' feet if the multiuse path will be subject to high volumes of multiple users. The applicant is proposing a 24' width for the private roads, but apparently only for the short sections which lead to natural trails; the remaining portions of private roads will be 20' with no multiuse path. Staff is uncertain if the code allows this hybrid. The applicant posits this is consistent to what the County approved in the adjacent Miller Tree Farm under 247-14-000243-TP. The proposed collector, an extension of McClain Drive to Sage Steppe, will be a public road, and also have an 8' multiuse path based on anticipated low volumes of usage and the road's low speed. While staff can understand the rationale for the reduced width on a private road that will see little to no through traffic, staff does not support similar reduced widths for a north -south collector that ultimately will provide a critical link between Johnson Road/Shevlin Park Road to the north and Skyliners Road and Century Drive, aka Cascade Lakes Highway, to the south. Board Resolution 2013-020 sets a transportation system development charge (SDC) of $4,448 per p.m. peak hour trip. County staff has determined a local trip rate of 0.81 p.m. peak hour trips per single-family dwelling unit; therefore the applicable SDC is $3,603 ($4,448 X 0.81) per residence. 247-19-000500-MP, 247-19-000501-TP Page 7 of 89 The SDC is due prior to issuance of certificate of occupancy; if a certificate of occupancy is not applicable, then the SDC is due within 60 days of the land use decision becoming final." Deschutes County Road Department. On July 23, 2019 Cody Smith, County Engineer for the Deschutes County Road Department submitted the following comments: "I have reviewed the application materials submitted to date for the above -referenced file numbers, proposing an 85-lot subdivision within the Westside Transect Zone on County Assessor's Tax Map 17-11, Tax Lot 6000. The subject property is accessed by Sage Steppe Dr and McClain Dr. Road Department records indicate that these roads have the following attributes where they abut the subject property: Sage Steppe Dr • Road Status - Local Access Road (Public, Not County Maintained) • Surface Type - Asphalt Concrete • Surface Width - 26 ft. • Functional Classification - Rural Local • Right of Way Width - 60 ft. • Right of Way Instrument - Tree Farm Subdivision Plat (2016-44585) McClain Dr • Road Status - City of Bend Road • Surface Type - Asphalt Concrete • Surface Width - 28 ft. • Functional Classification - City Local The applicant has proposed an interior private road system connecting to an interior public road that would be an extension of McClain Dr to Sage Steppe Dr for the proposed subdivision. Road Department anticipates that the extension of McClain Dr to Sage Steppe Dr, which is proposed with a paved width of 28 ft. and an 8-ft. wide multiuse path, will become a County collector road upon connecting Sage Steppe Dr to NW Crosby Dr or Skyliners Rd towards the south. The applicant has proposed 24-ft. wide paved private roads with no adjacent multi use paths for all other internal roads. The application states that the applicant coordinated with the County Road Department regarding the roadway cross -sections. It should be noted that while the applicant did coordinate their conceptual plans with the Road Department, Road Department staff did not indicate any acceptance of deviation from the private road standards in Deschutes County Code (DCC) 17.48.180 and 17.48A. Rather, Road Department staff stated to the applicant prior to application submission that they would need to provide justification or mitigation for a variance to the County private road standard in their application burden of proof Road Department staff acknowledges that the applicant has provided a reason for the variance in their burden of proof, but Road Department is neutral as to whether or not the applicant has provided a sufficient reason. 247-19-000500-MP, 247-19-000501-TP Page 8 of 89 Deschutes County Road Department requests that approval of the proposed subdivision be subject to the following conditions: Prior to construction of public and private road improvements: • Applicant shall submit road improvement plans to Road Department for approval prior to commencement of construction pursuant to DCC 17.40.020 and 17.48.060. The roads shall be designed to the minimum standard for a private road pursuant to 17.48.160, 17.48.180, and 17.48A or pursuant to the master plan upon approval. Road improvement plans shall be prepared in accordance with all applicable sections of DCC 17.48. Prior to final plat approval byR ad Department: • Applicant shall complete road improvements according to the approved plans and all applicable sections of DCC 17.48. Improvements shall be constructed under the inspection of a register professional engineer consistent with ORS 92.097 and DCC 17.40.040. Upon completion of road improvements, applicant shall provide a letter from the engineer certifying that the improvements were constructed in accordance with the approved plans and all applicable sections of DCC 17.48. • Maintenance of all public and private roads, including multiuse paths, 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. • Ali easements of record or existing rights of way shall be noted on the final plat pursuant to DCC 17.24.060(E),(F), and (H). • The surveyor preparing the plat shall, on behalf of Applicant, submit information showing the location of the existing roads in relationship to the rights of way to Deschutes County Road Department. This information can be submitted on a worksheet and does not necessarily have to be on the final plat. All existing road facilities and new road improvements are to be located within legally established or dedicated rights of way. In no case shall a road improvement be located outside of a dedicated road right of way. If research reveals that inadequate right of way exists or that the existing roadway is outside of the legally established or dedicated right of way, additional right of way will be dedicated as directed by Deschutes County Road Department to meet the applicable requirements of DCC Title 17 or other County road standards. This condition is pursuant to DCC 17.24.060(E),(F), and (G) and 17,24.070(E)(8). • Applicant shall submit as -constructed improvement plans to Road Department pursuant to DCC 17.24.070(E)(1). • Applicant shall submit plat to Road Department for approval pursuant to DCC 17.24.060(R)(2), 100, 110, and 140. Prior to issuance of any building permits: • Applicant shall obtain driveway access permits for any driveway accesses to the new public road connection between McClain Dr and Sage Steppe Dr pursuant to DCC 12.28.050 and 17.48.210(A)." 247-19-000500-MP, 247-19-000501-TP Page 9 of 89 The following agencies did not respond: Bend Metro Parks & Recreation District, City of Bend Growth Management Department, City of Bend Planning Division, City of Bend Public Works Department, Cascade Natural Gas Company, CenturyLink, Deschutes County Assessor, Deschutes County Environmental Soils Division, Deschutes County Sheriff, Deschutes County Surveyor, Pacific Power, and Watermaster - District 11. REVIEW PERIOD: The application was submitted on June 19, 2019. It was accepted and deemed complete on July 18, 2019. The 150th-day on which the County must take final action on this application is December 15, 2019. III. FINDINGS & CONCLUSIONS: PRELIMINARY HEARINGS OFFICER COMMENTS: At the start of the July 25, 2019 public hearing (the "Hearing") the Hearings Officer requested the Deschutes County Staff, the Applicant and/or Applicant's representatives and any other interested person to address various issues. Those issues included: • Are "lot area" measurements/sizes provided by Applicant "gross" or "net." Restated, are Applicant's proposed lot measurements/sizes inclusive of roads, streets, rights of way or easements of access to other property? (See DCC 19.22.050(A) and DCC 19.04.040) • What is the proper interpretation of DCC 19.22.050(H)? Applicant and supporters of the Application suggested DCC 19.22.050(H) was intended to provide a minimum setback requirement from the "Rim of the Tumalo Creek Canyon," and was not intended to create a 30- foot building setback from every topographical feature within the Westside Transect Zone ("WTZ") where slopes exceed the 20% requirement." (See July 12, 2019 letter from Tia Lewis). • Address all issues raised in the July 24, 2019 "Staff Memorandum." The Hearings Officer reviewed the testimony offered at the Hearing and documents contained in the record of this case. The Hearings Officer, based upon his review of the record, found no person responded to the "lot area" information request. The Hearings Officer, based upon the findings below, determined that there was insufficient evidence in the record to reach a defensible position to conclude that Applicant's proposed "lot area" was either "net" or "gross." The Hearings Officer, based upon a review of the evidence in the record, concluded that issues (excepting the "lot area" issue) raised above by the Hearings Officer were addressed during Hearing testimony or record submissions. The Hearings Officer, at the conclusion of the Hearing, commended the Applicant's public involvement process. The Hearings Officer commented that the Application in this case appeared to have been a result of a collaborative effort of persons/entities with a history of different 247-19-000500-MP, 247-19-000501-TP Page 10 of 89 perspectives of what constitutes "good planning." To that end the Hearings Officer would like to have agreed, in all instances, with Applicant's requests. However, the Hearings Officer is obligated to "follow the law" by considering the evidence "in the record" in the context of relevant approval criteria. TITLE 19 OF THE DESCHUTES COUNTY CODE, DESCHUTES COUNTY ZONING ORDINANCE OF THE BEND URBAN AREA: Chapter 19.22, Westside Transect Zone - WTZ Section 19.22.020. Permitted Uses. The following uses and their accessory uses are permitted outright: A. Single-family dwelling. 8. Home occupation subject to DCC 19.88.140. C. Other accessory uses and accessory buildings and structures customarily appurtenant to a permitted use subject to DCC 19.92.020. Section 19,22.030. Conditional Uses. The following uses and their accessory uses may be permitted subject to site plan review and a conditional use permit as provided in DCC 19.76, 19.88, and 19.100: A. Public, parochial and private schools, including nursery schools, kindergartens and day nurseries; but not including business, dancing, trade, technical or -•--"ar schools subject to DCC 19.88.160. 8. Parks and recreation facilities, community buildings and fire stations; but not including storage or repair yards, warehouses or similar uses. C. Utility facility, including wireless telecommunications facilities, subject to DCC 19.88.120. D. Churches. FINDING: The Applicant proposed an 85-lot subdivision for residential and accessory uses only. No specific development beyond the division of land and the associated transportation and utility improvements are proposed at this time. Uses in the future will be subject to DCC 19.22 and any other applicable title/chapter of the DCC. Section 19.22.040. Height Regulations. No building or structure shall be hereafter erected, enlarged or structurally altered to exceed 30 feet in height, except for schools which shall not exceed 45 feet in height. FINDING: No structures are being proposed as part of this application. However, Staff recommended, in the Staff Report, the following condition of approval is included to ensure ongoing compliance with this criterion. 247-19-000500-MP, 247-19-000501-TP Page 11 of 89 Building Height: Prior to the issuance of building permits for individual lots, no building or structure shall be hereafter erected, enlarged or structurally altered to exceed 30 feet in height, except for schools which shall not exceed 45 feet in height. The Hearings Officer finds that with Staff's recommended condition this approval criterion can be met. Section 19.22. 050. Lot Requirements. The following requirements shall be observed: A. Lot Area. Each lot shall have a minimum of 2.5 acres. FINDING: Applicant's proposal includes lots ranging in size from 2.5 acres to 5.0 acres. Staff, in the Staff Report (page 9 of 65), stated "it is unclear if these lot area measurements are net lot area or gross lot area." DCC 19.04.040 provides the following definition: "'Lot area' means the total horizontal area contained within the lot lines; said area shall be computed as gross area for lots larger than 2.5 acres and net area for lots 2.5 and smaller, The total horizontal net area within lot lines of a lot is that square footage of a lot that is free from roads, streets, rights of way or easements of access to other property. The Planning Director shall include in gross lot areas all streets, roads and easements of access to other property that would accrue to that lot if the road, street or easement were vacated, and shall treat the gross areas of lots that have never been previously described of record as other than fractions of a section as if the section contained 640 acres, in cases where a lot is sought to be partitioned." Several lots are listed as being exactly 2.50 acres while others are larger. It is unclear if the Applicant included streets and easements in the calculations for the 2.50-acre lots (which would not be allowable). In addition to the portion of the Subject Property within the WTZ Zone, there is an approximately 32-acre portion of the overall property within the UGB in the UA Zone. Under the Bend Development Code this portion of the property is subject to a minimum lot size of 20 acres (BCD 2.8.300, Lot Area and Dimensions). Pursuant to the definition of "Lot of Record" in DCC 19.04.040, a remainder lot of record can be created by, "the subdividing or partitioning of adjacent or surround land, leaving a remainder lot or parcel". Staff noted that at the completion of platting all proposed phases, this remainder lot will be approximately 32 acres in size and will be above the minimum lot size for the UA Zone, assuming it is not further divided in that time period. The Hearings Officer concurs with Staffs "lot size" concerns. The Hearings Officer, as noted in the Preliminary Comment section of this decision and earlier in these findings, found Applicant did not provide any additional evidence following the issuance of the Staff Report that clearly and directly addressed Staffs "lot size" concerns. The Hearings Officer finds with a condition requiring Applicant, prior to final plat approval for each phase, to meet the requirement of DCC 19.22.050 (in the context of DCC 19.04.040) this approval criterion can be met. 247-19-000500-MP, 247-19-000501-TP Page 12 of 89 B. Lot Width. Each lot shall be a minimum width of 125 feet. FINDING: DCC 19.04.040 provides the following definition for "lot width": "Lot width" means the horizontal distance between the side lot lines measured within the lot boundaries or the mean distance between the side lot lines within the buildable area. In the case of a corner lot, lot width shall mean the mean horizontal distance between the longest front lot line and the opposite lot line not abutting the street. Lots 33, 37, and 77 are proposed as "flag lots" with a narrow access strip leading from the road to a larger area to the rear of the lot where development is intended. This "pole" part of a flag lot is not considered buildable area as a structure would not meet minimum setbacks in this area of the lot. Lots 33, 37, and 77 all have lot widths in excess of 300 feet. All lots within the proposed subdivision exceed the minimum width of 125 feet. The Hearings Officer finds this approval criterion will be met. C. Front Yard. The front yard shall be a minimum of 40 feet. D. Side Yard. There shall be a minimum side yard of 30 feet. E. Rear Yard. There shall be a minimum rear yard of 30 feet. F. Solar Setback. The solar setback shall be as prescribed in DCC 19.88.210. G. Park Setback. The setback from Shevlin Park shall be a minimum of 100 feet. FINDING: Shevlin Ridge residents Steven L Wallaert and Pam Robbins ("Wallaert & Robbins"), in a July 18, 2019 email, expressed concerns related to setbacks on the eastern edge of the proposed development. Wallaert & Robbins requested, in their email, assurances that a 50-foot setback (not the minimum DCC required 30-foot setback), are part of any approval of Applicant's proposal. Applicant, in July 16, 2019 supplemental submission, stated the following: "Lots 60 to 67 will include a 50 footsetback along their eastern property line, greater than required by County code. This increased setback will be provided to create a larger buffer area between Westgate and the adjacent urban neighborhood to the east. These setbacks are shown on the plans submitted with this memo, dated 7/12/19." Tammy Wisco ("Wisco"), the Applicants planning representative, testified at the Hearings that there would be a 50-foot setback along the eastern boundary adjacent to Shevlin Ridge. Further, Wisco, included a Power Point presentation slide (Slide 7) as part of her Hearing testimony. Slide 7 is a map showing the eastern edge of the proposed development and a 50-foot setback adjacent to Shevlin Ridge. The Hearings Officer finds, based upon the above -quoted statement by Applicant, Wisco's testimony and Power Point Slide 7, that Wallaert & Robbins concerns have been adequately addressed by Applicant. The Hearings Officer further notes that the 50-foot proposed setback, along Shevlin Ridge, exceeds the setback required by the DCC. Staff noted, in the Staff Report, that the No Build Line and the Conservation Area (Tract B) along the 247-19-000500-MP, 247-19-000501-TP Page 13 of 89 western portion of the subdivision would guarantee that the park setback of subsection (G) above will be met. Staff, in the Staff Report, also noted that even though no structures were proposed at this time, Staff was recommending the following condition of approval to ensure ongoing compliance with these criteria: Setback and Yard Requirements: As an ongoing condition of approval, the subdivision lots shall observe the applicable setback and yard requirements of DCC 19.22.050(C)-(G). The Hearings Officer finds that with Staffs recommended condition of approval these approval criteria can be met. H. Slope Setback. There shall be a minimum setback of 30 feet from the edge of any slope which exceeds 20%. FINDING: This section of the DCC generated a number of comments from supporters of Applicant's proposal (Tia Lewis letter dated July 12, 2019, Myles Conway letter dated July 16, 2019, Paul Dewey letter dated July 23, 2019, and Myles Conway final argument dated July 30, 2019). The issue raised in these letters can best be summarized by Conway's conclusion statement in his July 16, 2019 letter which states: "In sum, the Slope Setback requirement contained in DCC 19.22.050 (H) was intended to create a setback from the canyon rim. It was not intended to create a 30 foot building setback from every topographical feature within the South Transect property that exceeds the 20 percent requirement." The Hearings Officer takes notice that the Subject Property contains areas that are "sloped." The Hearings Officer also takes notice that Tumalo Creek Canyon is located in the western portion of the Subject Property and that Shevlin Park and Tumalo Creek are located to the west of the Subject Property. The Hearings Officer also takes notice that views up to the Subject Property from Shevlin Park and fire protection/mitigation were very important considerations in the comprehensive plan/zone change process leading the approval of the Westside Transect zone code language. Applicant, in its burden of proof, stated: "This requirement [DCC 19.22.050 H] was adopted through the Westside Transect Zone text amendment (247-18-000614-TA), which became effective April 16, 2019. The intent of this requirement was to mitigate wildfire spread through Tumalo Canyon, based on the Singletree Wildfire Mitigation and Forest Health Plan (Exhibit C). In this report, Mr. Jackson notes: Drainages with significant canyons such as Tumalo Creek typically can vector wind patterns away from prevailing free -air wind flow...accelerated rates of fire spread from canyon -bottom ignitions should be expected. Consequently, structures should be located well -away from the mouth at the top of side drainages and well setback from rim -rock edge and/or above steep slopes above drainages and canyon walls.' 247-19-000500-MP, 247-19-000501-TP Page 14 of 89 The WTZ code was written vaguely, as it was understood that structures would be much further back than 30' from Tumalo Canyon, thereby not needing significant detail on the application of the requirement. Additionally, the code was written prior to having topographical data for the South Transect and was not intended to apply to other slopes on individual lots, separate from Tumalo Canyon and Shevlin Park. The Applicant has interviewed numerous individuals involved in the text amendment regarding the slope setback requirement of DCC 19.22.050(H), and all confirmed that the intent of this requirement was to address the wildfire spread risk through Tumalo Canyon, and not to require setbacks from all steep slopes existing on an individual lot. Several individuals have noted their willingness to provide testimony to this regard. The proposed subdivision provides significant structure setbacks from the Tumalo Canyon, far greater than required by this criterion. The western property line of Westgate follows a ridgeline, although it is not the main Tumalo Canyon ridge. As shown on the tentative plan, the proposed development includes an approximately450 footsetback from the western property line abutting Shevlin Park and the Tumalo Canyon area, well in compliance with the intent of this criterion." On July 15, 2019, Tia M. Lewis of Schwabe Williamson & Wyatt submitted a letter in support of the proposal and addressed the topic of slope setbacks. The letter states: "Our office represents the Coats family as owners of the The [sic] North Transect area. We are writing with respect to the .Slope Setback requirement for the Westside Transect Zone properties as referenced in DCC 19.22.050 and in support of the above -referenced application. As you are aware, our office worked with County Planning and the present applicants to draft and process the Comprehensive Plan amendments, goal exceptions, zone change and text amendments that gave rise to the approval of the Westside Transect Zone- WTZ (DCC Chapter 19.22). This letter is intended to provide our support for the present applicant's testimony and evidence to clarify the intent of all parties with respect to the Slope Setback requirement contained in DCC 19.22.050(H). The WTZ provides for a 30-foot minimum setback requirement from the edge of a slope that exceeds 20%. This requirement was specifically intended to provide a minimum setback requirement from the rim of the Tumalo Creek canyon. The purpose of this setback requirement was to provide additional protection from the spread of wildfire and to protect existing viewsheds from the adjacent Shevlin Park and Tumalo Creek as described in the Wildlife Mitigation and Forest Health Plans for the Transect properties. We agree with the testimony and evidence the present applicant has submitted establishing the Slope Setback requirement contained in DCC 19.22.050(H) was intended to create a setback from the canyon rim and was not intended to create a 30-foot building setback from every topographical feature within the Transect properties that exceeds the 20% requirement. Thank you for the opportunity to provide this comment. Please let us know if any additional supporting material is required." 247-19-000500-MP, 247-19-000501-TP Page 15 of 89 On July 16, 2019, Miles A. Conway of Marten Law submitted a letter that was also in support of the proposal and addressed the topic of slope setbacks. The letter states: "We are writing with respect to the Slope Setback requirement for the Westside Transect Zone properties as referenced in DCC 19.22.050. As you are aware, our office worked with County Planning and the owners of the Coats property (North Transect) to draft and process the Comprehensive Plan amendments, goal exceptions, zone change, and text amendments thatgave rise to the approval of the Westside Transect Zone "WTZ"- (DCC Chapter 19.22). This letter is intended to clarify the intent of all parties with respect to the Slope Setback requirement contained in DCC 19.22.050(H). The WTZ provides for a 30-foot minimum setback requirement from the edge of a slope that exceeds 20 percent. This requirement is specifically intended to provide a minimum setback requirement from the rim of the Tumalo Creek Canyon. The purpose of this setback requirement is to provide additional protection from the spread of wildfire and to protect existing viewsheds from the adjacent Shevlin Park and Tumalo Creek. The Singletree Wildfire Mitigation and Forest Health Plan (attached as Exhibit C to County file 247-18-000614-TA) provides as follows: Drainages with significant canyons such as Tumalo Creek typically can vector wind patterns away from prevailing free -air wind flow...accelerated rates of fire spread from canyon -bottom ignitions should be expected. Consequently, structures should be located well away from the mouth at the top side drainages and well setback from rim -rock edge and/or steep slopes above drainages and canyon walls.' The minimum slope setback requirement was intended to provide an additional degree of protection from fires emanating on forest lands to the west, consistent with the requirements of our fire plan and the applicable National Fire Protection Association standards. In addition to fire concerns, the slope setback requirement was implemented as part of a comprehensive measures that will protect existing viewsheds from Tumalo Creek. As noted in testimony before the Hearings Officer and County Board, the rim of the Tumalo Creek Canyon is a prominent physical feature when viewed from the trails and public areas within Shevlin Park. The applicable slope setback was incorporated to insure planned home site locations would be setback from the rim of Tumalo Creek. For the South Transect property, the applicant also incorporated both a "Conservation Area" and "No -build Area" that create a more significant buffer between planned homesites and the canyon rim. These requirements result in a minimum of 450-feet of setback from the canyon rim (See Westgate Master Plan Development plans, submitted with the Applicant's Land Use Narrative). In sum, the Slope Setback requirement contained in DCC 19.22.050(H) was intended to create a setback from the canyon rim. It was not intended to create a 30-foot building setback from every topographical feature within the South Transect property that exceeds the 20 percent requirement. Thank you for the opportunity to provide this comment. Please let us know if any additional supporting material is required." 247-19-000500-MP, 247-19-000501-TP Page 16 of 89 Paul Dewey, Executive Director of Central Oregon Landwatch, also provided comments related to DCC 19.22.050 H. Dewey, in his July 23, 2019 letter, stated: "During the development of the Westside Transect Zone code, this slope setback was intended to provide a setback requirement from the Tumalo Creek Canyon rim, to provide wildfire mitigation from forestlands to the west, in response to the Singletree Wildlife Mitigation and Forest Health Plan. This requirement was not intended to e applied on a lot -by -lot basis in the Westside Transect Zone to other features with slopes over 20%. The slope setback requirement for the Westside Transect Zone was also intended to protect the viewsheds from Tumalo Canyon and Shevlin Park, through ensuring ample setbacks of home sites from the Tumalo Canyon rim. The proposed Westgate master plan and tentative plan comply with the code by including significantly greater setbacks from the rim. In summary, the slope setback requirement of DCC 19.22.050(H) was not intended to be applied on an individual lot basis to all features with slopes greater than 20 percent, but rather, was intended to apply to the Tumalo Canyon rim along the south side of Shevlin Park and Tumalo Creek." Conway, in Applicants July 30, 2019 "final argument," provided additional argument in support of Applicants interpretation of DCC 19.22.050 H. Conway stated, in his "final argument" the following: "The applicant offers the following as its final argument under ORD 197.763.(6)(e) with respect to the "Slope Setback" requirement set forth in DCC1 9.a2.v✓v/L/. This provision requires a minimum 30 foot setback 'from the edge of any slope which exceeds 20%.' The term 'slope' is not defined in either DCC Chapter 19 or DCC Chapter 18. As a result, the Hearings Officer must interpret what the term 'slope' means in the context of DCC 19.22.050(H). Under PGE v. Bureau of Labor and Industries, 217 Or. 606 (1993) and its progeny, the fundamental task in interpreting an ordinance is to determine the legislative intent. Here, the Hearings Officer must first examine the text and context of DCC 19.22.050 (H). Under State v. Gaines, 346 Or. 160 (2009), the Hearings Officer may resort to any proffered legislative history to determine the intent of the drafters, while applying relevant rules of statutory construction. First, what is a 'slope'? Because the term is not defined by the code, the Hearings Officer should apply the standard dictionary definition: Slope 'ground that forms a natural or artificial incline; upward or downward slant or inclination or degree of slant; the tangent of the angle made by a straight line with the x-axis.' Dictionary by Merriam -Webster. Applying these definitions, there is still ambiguity because, as our testimony revealed, there could be 'slopes'greater than 20% in multiple places in a single lot depending on the distance measured between the two points. There are 20% slope where there are small depressions or other small natural features such as boulders. One maxim of statutory construction is to avoid an 'absurd' 247-19-000500-MP, 247-19-000501-TP Page 17 of 89 result. Applying slope' to short distances would lead to the absurd result that setbacks could be measured from rocks, boulders or other measured feature. Turning to the legislative history, the 20% slope setback was imposed specifically to address wildlife hazards threating the subject property from the west during fire season. Under PGE and Gaines, the intent of the County Commissioners in adopting this setback was to place homes away from steep canyon slopes to avoid wildfire hazards. Consequently, an appropriate interpretation under PGE and Gaines, is that the setbacks should be measured only from Tumalo Creek canyon slopes exceeding 20%. If the Hearings Officer is unable to limit application of the setback to Tumalo Creek canyon slopes, the applicant requests that the Hearings Officer approve the Westgate Master Plan and Tentative Plan with an ongoing condition of approval that all buildings observe the 30-foot setback imposed by DCC 19.22.050(H). This condition would demonstrate compliance with the setback requirement and would permit the applicant to seek a formal code interpretation, modify the code or resolve the issue at the building permit stage without the need to amend the Master Plan/Tentative Plan." Staff, in the Staff Report, stated that Applicant had not provided (prior to the issuance of the Staff Report) any transcripts or minutes from the WTZ text amendment proceedings to support the Applicant's interpretation of DCC 19.22.050(H). Staff, in the Staff Report, opined that the Applicant's argument was plausible and likely accurate. However, Staff requested that the Hearings Officer make a determination as to whether the setback from slopes exceeding 20% applies throughout the entire WTZ or only within the western portions closest to Tumalo Creek and Shevlin Park. Additionally, Staff, in the Staff Report, also requested that the Hearings Officer determine if the "edge of any slope" refers to both the top and bottom "edges" or only to the top "edge". The Hearings Officer first reminds readers of this decision that the Hearings Officer in this case is the same Hearings Officer that presided over the initial hearing related to the comprehensive plan change, zone change and zoning code text amendment (creating the WTZ) for the Westside Transect area. The Hearings Officer clearly recalls expert testimony from the Applicant's fire consultant related to wildfire mitigation measures; why they were necessary and how the Applicants proposal supported fire safety. The Hearings Officer agrees, at the earlier Hearings Officer level of review, that wildfire mitigation measures were a primary focus of the WTZ. The Hearings Officer finds that the Hearings Officer's recommendation to the Deschutes County Board of Commissioners (the "Board"), in the earlier comprehensive plan change, zone change and zoning code test amendment for the Westside Transect area is relevant "legislative history." Further, the Hearings Officer finds any comments, responses or statements made by members of the Board constitutes relevant "legislative history." The Hearings Officer finds that the recollections of participants in the earlier process, expressed in letters to the Hearings Officer in this case, do not constitute persuasive "legislative history." The Hearings Officer also reminds reader of this decision that the WTZ text amendment recommendation by the Hearings Officer was required to be reviewed and ultimately approved by the Board. The Hearings Officer did not observe or otherwise participate in the Board's review of 247-19-000500-MP, 247-19-000501-TP Page 18 of 89 the Hearings Officer's WTZ text amendment recommendation. The only evidence that would be persuasive to this Hearings Officer would be on -the -record comments, responses or statements made by the Board that related to DCC 19.22.050(H). The Hearings Officer finds that Staff (in the Staff Report) and the Hearings Officer (in opening comments at the Hearing) requested Applicant (or any other interested person/entity) to fill in the 'legislative history gaps related to DCC 19.22.050(H). The Hearings Officer finds, excepting for references to fire mitigation measures mentioned above, that no evidence of legislative history of DCC 19.22.050(H) is in the evidentiary record. The Hearings Officer finds that DCC 19.22.050 is titled "Lot Requirements." Dewey's statement that DCC 19.22.050(H) "was not intended to be applied on a lot -by -lot basis in the Westside Transect Zone to other features with slopes over 20 percent" is simply contrary to the clear and unambiguous language of DCC 19.22.050. The Hearings Officer finds DCC 19.22.050, including DCC 19.22.050(H), apply to all lots in the WTZ and not to any particular subset of lots. -Fla Lewis, Myles Conway and Paul Dewey all, in letters which are part of the record of this case, assert that DCC 1.22.050(H) was "intended" to apply only to the Tumalo Canyon rim as a wildfire and view mitigation measure. The Hearings Officer finds that the testimony/letters, in this case, from Lewis, Conway and Dewey do not constitute persuasive 'legislative history' related to the enactment of DCC 19.22.050(H). While the Hearings Officer acknowledges that Lewis, Conway and Dewey were each involved in legislative process resulting in the enactment of DCC 19.22.050(H) their comments alone, in this case, are not persuasive evidence that DCC 19.22.050(H) should be interpreted to mean "slope" refers only to the Tumalo Canyon rim and not to all lots within the Applicant's proposed land division. The Hearings Officer next addresses Myles Conway's "final argument" that the "setback slope" referred to in DCC 19.22.050(H). is (1) ambiguous and (2) should be interpreted to mean "setbacks should be measured only from Tumalo Creek Canyon slopes exceeding 20%." The Hearings Officer, for the purposes of this section of the findings, assumes that the term "slope" is ambiguous. This assumption is made despite reservations by the Hearings Officer based upon the fact that the term "slope" has a clear and concise dictionary definition (see Myles Conway "final argument" dated July 30, 2019). Conway, in the "final argument" stated that "slope" could be considered ambiguous because (1) the slope could vary depending upon the distance measured between two points and, (2) boulders or other natural features could distort result in a "slope" greater than 20%. The Hearings Officer, for this purpose of discussion of the findings for DCC 19.22.050(H), agrees with Conway that the "slope" of a specific geographical area could be determined by the "distance measured between two points" and even possibly by the existence of "boulders" or other "natural features." However, these arguments presented by Conway do not support Applicants contention that "slope" (as used in DCC 19.22.050(H)) should be interpreted to include or reference only the Tumalo Canyon Rim and not include other locations where the "slope exceeds 20%." 247-19-000500-MP, 247-19-000501-TP Page 19 of 89 The Hearings Officer finds, based upon experience in prior land use hearings, that civil engineers and surveyors utilize standard protocols in determining "slope." No interested person, in the record of this case, referenced engineering standards or protocols in the context of measuring "slope," The Hearings Officer, based upon the lack of evidence or argument, finds that until challenged the measurement of "slope" is an engineering matter and not one to be interpreted by a Hearings Officer. If, on the oft chance, there would be a dispute between expert engineers as to the meaning of "slope" a hearings officer or the Board would correctly be forced to address that issue. Finally, the Hearings Officer notes that DCC 19.22.050(H) states that a 30-foot setback is required "from the edge of any slope which exceeds 20%." The language of DCC 19.22.050(H) dearly does not state 30-foot setbacks required from the Tumalo Canyon rim or any other specific "slope." The Hearings Officer finds the use of the words "any slope" do not limit the 30-foot setback requirement to "some" slopes or to any "particular" slope. The Hearings Officer finds it would be presumptuous, and not legally supportable, to interpret the term "slope" as requested by Applicant (i.e. "slope only refers to the Tumalo Canyon rim). The Hearing Officer finds Conway's request to "approve the Westgate Master Plan and Tentative Plan with an ongoing condition of approval that all future building improvements observe the 30- foot setback imposed by DCC 19.22.050(H) is reasonable. The Hearings Officer finds that with such a condition this approval criterion can be met. Staff, in the Staff Report, requested the Hearings Officer determine the meaning of "edge of any slope." Staff suggested that "edge of any slope" could mean "top and bottom of edges" or it could refer to only the "top edge." The Hearings Officer agrees with Staff that the phrase "edge of any slope," in the context of determining a point of measurement (for the 30-foot setback) may be an ambiguous phrase. The Hearings Officer notes that no evidence was brought to the attention of the Hearings Officer, following the issuance of the Staff Report, addressing this issue at the Hearing. The dictionary definition of "edge" is: • The line where an object begins or ends • A point near the beginning or the end" Merriam -Webster Dictionary The Hearings Officer finds, with the dearth of assistance from persons or entities involved in this case, that"edge" means, in the context of DCC 19.22.050(H), both the top and bottom edges. While the Hearings Officer believes a reasonable interpretation of "edge," in the context of DCC 19.22.050(H), would include only the "top edge" there simply is no substantial evidence in the record (such as legislative history) to support such an interpretation. The Hearings Officer finds this approval criterion can be met with condition of approval requiring all future building improvements on the Subject Property observe the 30-foot setback imposed by DCC 19.22.050(H). 247-19-000500-MP, 247-19-000501-TP Page 20 of 89 Section 19.22.060. Land Divisions. All residential subdivisions shall be master planned under DCC 17.16.050 and shall comply with the following. A. Master Development Plan Requirements. In addition to the overall master development plan requirements of DCC 17.16.050, such master development plans in the Westside Transect Zone shall also demonstrate: 1. The lot configuration, street layout, parking lots, trails and any open space, common areas, and public parks are designed to be compatible with existing or projected uses on adjacent properties and provide sufficient public access to and through the subject property; FINDING: The master development plan requirements of DCC 17.16.050 are reviewed separately in this decision. Applicant, in its burden of proof, it stated: "The Westside Transect Zone (WTZ) allowed uses, requirements, and criteria were adopted by the County, with compatibility as a cornerstone. Compatibility with adjacent neighborhoods, parks, wildlife and forest lands has been incorporated into DCC 19.22 Westside Transect Zone and compliance with the criteria of this section of the code ensures compatibility. As noted in the WTZ zone change application, "(t]he low density residential development permitted in the WTZ is intended to minimize conflicts with urban uses with the City of Bend and the natural resource values of Shevlin Park and Tumalo Creek to the west." Lot configuration: Existing and proposed uses to the north, south, and east are all residential. The proposed lots for the subject project are all large lots (2.5 acres and larger) and are significantly larger in size than the existing and planned adjacent developments. This strategy is to provide for a transition area ("transect") between urban development in the City to the east and Shevlin Park and forestlands to the west, minimizing conflicts between urban and rural uses. Additionally, the proposed uses for the lots are solely residential, a permitted use in the zone. As noted in the WTZ zone change hearings officer recommendation (247-18-000612-ZC): The proposed use has been designed in a manner that is entirely compatible with adjacent land uses. The low density residential development authorized in the WTZ will minimize the potential for conflicts with both urban uses within the City of Bend and the natural resource values of Shevlin Park and Tumalo Creek to the west. Individual residential home sites within the WTZ will be buffered from the park boundary and Shevlin Park. The South Property borders lands zoned for urban development to the north and east. The existing Shevlin Commons development borders the property directly to the north. Platted rural residential lots (2-acres in size) abut the property to the south. Shevlin Park and Tumalo Creek border the property to the west, where no development (other than public park uses) is contemplated or authorized... The low density residential development standards within the WTZ will be entirely compatible with the size and configuration of lots within the adjacent Tree Farm residential development. Substantial topography (rock 247-19-000500-MP, 247-19-000501-TP Page 21 of 89 outcroppings and a steep ridge line) will separate the South Property from planned urban development to the east.' Open Space/ Trails/ Parks: The open space shown on the Westgate subdivision tentative plan can be categorized into four groups: conservation area, no build zone, natural areas, and open space to be dedicated to BPRD. Each open space was designed with a specific focus on compatibility: Conservation Area: Reserved as a dedicated wildlife corridor, with a focus on maintenance of wildlife habitat. No Build Zone: To be managed and maintained primarily for fire protection purposes. Natural Areas: Visually unique locations, highlighted for preservation as natural resources. Future BPRD Proper Provides a buffer between proposed development and neighborhoods to the north, as well as trail connectivity to Bull Springs Trail and Shevlin Park for surrounding neighborhoods. Shevlin Park borders the subject property to the west; further west is the Deschutes National Forest, A minimum of 450' has been reserved between the park and buildable area along the western edge of the proposed development, as conservation and no build areas, for both wildfire and wildlife management. These areas are clearly depicted in the tentative plan and will be defined as through open space and no build easements. The management of these areas is detailed in the draft CC&Rs (Exhibit G), which will be enforced through an HOA. Along the northwestern edge of the subject property, approximately eight acres are proposed for donation to Bend Parks and Recreation District, to provide natural open space areas and neighborhood bike and pedestrian connections. These significant management corridors and open spaces will further reinforce the compatibility between neighborhoods and Shevin Park, by providing buffers along the entire west side of the subject property. The WTZ zone change hearings officer recommendation noted: 'Proposed WTZ development standards will maintain critical areas of wildlife habitat and preserve existing deer and elk migration corridors along the Tumalo Creek corridor. Future residential landowners will be required to maintain their individual lots in a manner that is compatible with both the protection of existing wildlife habitat and the suppression of fire. Individual structures erected within the WTZ must comply with national fire protection. standards, with lot owners required to maintain fire protection buffers around all buildings and home sites. The fire management prescriptions of the WTZ are expected to significantly reduce the threat of a wildfire spreading from the forested lands to the west into the City of Bend. Adoption of the WTZ significantly reduces or ameliorates the overall environmental impacts of developing the subject properties and substantially benefits environmental qualities on adjoining lands.' 247-19-000500-MP, 247-19-000501-TP Page 22 of 89 The WTZ zone change hearings officer recommendation continues: 'As a condition of development approval, the applicant is prepared to dedicate a 50-acre "Conservation Area" immediately adjacent to its boundary with Shevlin Park. The Conservation Area will be managed under the terms of a conservation easement that will protect and preserve areas of wildlife habitat, in addition, the applicant intends to create an additional 30-acre "No -Build Area" immediately east of the Conservation Area. The "No - Build Area" will be part of individual lots but no structures will be permitted and the area will be managed primarily for fire protection purposes. The protection of these two areas (located along the western boundary of the South Property) will insure that management of the WTZ is compatible with Shevlin Park. The planned Conservation Area and No Build Area will work to insure that residential development within the WTZ is not visible from Tumalo Creek. The joint management of such areas will provide additional protections for the natural resource and public values of Shevlin Park. Fire management standards within the WTZ will provide a benefit to the residential development to the north, south and east. A portion of the planned No -Build Area will provide an additional fire protection buffer between the Shevlin Commons development and the South Property.' The proposed development also includes multiple trails that will connect adjacent neighborhoods through the development and to open spaces and Shevlin Park. Compliance with DCC 19.22 Westside Transect Zone ensures that the proposed subdivision is designed to be compatible with adjacent neighborhoods, open space, and wildlife. A natural trail is proposed to connect to future and existing areas of Northwest Crossing, through the proposed Westgate subdivision to the north -south extension of Sage Steppe Road, where the path becomes a paved multiuse path. At the north end of Westgate, another trail connects to the multiuse trail to connect bicyclists and pedestrians to the eight acres of dedicated open space and to the existing Bull Springs Trail that provides access to Shevlin Park. These trail connections provide significant access to surrounding neighborhoods. The proposal does not include parking lots or public parks. Streets/Public Access: The proposed development includes one north -south street, designed to County collector standards, which will connect existing developments to the north and south through the extension of existing roadways. This main "spine" will be accessed by private streets to serve the proposed development, including a looping street through the western portion of the property. This proposed north -south roadway wilt provide not only public access to the proposed development, but also a street for north -south vehicular, pedestrian and bicycle connectivity from the Shevlin Park area ultimately to skyliners, without accessing Mt. Washington Way. As the subject property is bounded by Shevlin Park on the west and topography on the east, there are no proposed or existing east -west connections. The street layout is designed to be compatible with uses on adjacent properties while providing connectivity that is currently not available on the far west side of Bend." 247-19-000500-MP, 247-19-000501-TP Page 23 of 89 As noted earlier in this decision the Hearings Officer in this case is the same hearings officer who issued the recommendations quoted above. With that said, the Hearings Officer concurs with the Applicants statements and finds the proposed configuration and layout are compatible with existing and projected surroundings uses and provides sufficient access. 2. The development contributes to the preservation of natural and physical features of the site; and FINDING: Applicant, in its burden of proof, stated: "Preservation of natural and physical features is central to the Westgate subdivision development strategy. As detailed previously in this document, the proposed development dedicates significant acreage to conservation areas, natural areas, open space and no build areas; approximately 80 acres are included in one of these conservation categories. These areas are clearly depicted on the tentative plan and will be managed through separate tracts and/or no build easements. The CC&Rs include strict provisions for the preservation of these areas, through: o prohibition of certain activities (tree/vegetation removal without HOA approval, modification of topography, debris disposal, parking/motor vehicle access, burning of debris, construction), o landscape maintenance, o specific permitted uses, and o implementation and enforcement of the Wildlife Habitat Management Plan and Wildfire Protection Management Plan. Additionally, due to the nature of large lot developments, each individual lot will include areas that remain natural." The Hearings Officer concurs with the above -quoted statements by Applicant and finds the proposed development contributes to the preservation of natural and physical features of the Subject Property. 3. Compliance with provisions of the Oregon State Scenic Waterway Act and the Deschutes County Landscape Management Combining Zone, as applicable. FINDING: The Subject Property is not located within an Oregon Scenic Waterway nor is it within the Landscape Management Combining Zone. The Hearings Officer finds these provisions do not apply. B. Residential lots shall be limited to 100 residential lots for the North Transect and 87 residential lots for the South Transect, as depicted on Figure 1 at the end of this chapter. FINDING: The proposal includes the entire South Transect area and consists of 85 residential lots, two less than the maximum. The Hearings Officer finds this approval criterion will be met. 247-19-000500-MP, 247-19-000501-TP Page 24 of 89 C. The subdivision shall be designed in accordance with a Wildlife Habitat Management Plan and a Wildfire Mitigation Plan for the subdivided property as described below and submitted with the master development plan application. 1. A Wildlife Habitat Management Plan prepared by a professional biologist which identifies important wildlife habitat and migration corridors and contains provisions for deed restrictions or restrictive covenants which include but are not limited to the following components: a. Dedicated open space and/or resource management corridors with specific enforceable measures to aid in wildlife migration and protect habitat within these areas. FINDING: Applicant, in its burden of proof, stated: "A 'Wildlife Habitat Management Plan for the Rio Lobo Property' was produced for the subject property by Mason, Bruce & Girard, Inc., dated December 21, 2017. The submitted Wildlife Habitat Management Plan notes that the subject property is located within a biological mule deer and elk winter range, as identified by the Oregon Department of Fish and Wildlife ("ODFW"). As a result of this study and significant coordination with interested agencies and organizations, a large conservation and no build area is proposed along the entire western border of the proposed subdivision. This area is approximately 72 acres and is 450 feet wide at its narrowest and are proposed to be enforced through no build easements and CC&Rs. The Wildlife Habitat Management Plan includes specific wildlife habitat conservation measures, which will be enforced by the Westgate CC&Rs. in addition to habitat management, the draft Westgate CC&Rs requires wildlife protection in Section 10.16: 10.16 Wildlife Protection. Each Owner shall comply with such provisions of the Wildlife Habitat Management Plan as are applicable to his or her Homesite. The harassment, capturing, trapping, injuring, or killing of wildlife within the Property is expressly prohibited, except when reasonably necessary to avoid an imminent threat of personal injury or death to any person or except when reasonably necessary to protect property from damage by rodents or other pests and then only to the extent permissible under applicable laws. The feeding of wildlife or leaving salt blocks out for big game is also expressly forbidden. Article XII addresses enforcement of the covenants. More specifically, Section 12.1 provides the Association the right to assess fines and interest rates, enter the homesite to remedy the violation and assess owners for the work, suspend voting rights, place liens, and bring suit or action against the owner."[emphasis in original] The Hearings Officer concurs with the Applicant's statements and finds the proposed development meets the Wildlife Habitat Management Plan requirements of this section to aid in wildlife migration and habitat protection. 247-19-000500-MP, 247-19-000501-TP Page 25 of 89 b. Specific vegetation management standards for areas within the open space and/or resource management corridors to protect wildlife habitat funded through homeowner assessment and performed, monitored and enforced by the homeowners association. FINDING: Applicant, in its burden of proof, stated: "The Wildlife Habitat Management Plan (WHMP, Exhibit D) notes that the Singleton Wildfire Management and Forest Health Plan (WMFHP) was developed in conjunction with the WHMP "in order to produce a comprehensive vegetation management plan that will reduce the threat of wildfire spread while also maintaining quality wildlife habitat within the conservation area, the designated open space, and in the undeveloped portions of the residential lots. As explained in the WMFHP, vegetation will generally be managed in compliance with the National Fire Protection Association (NFPA) codes and defensible space standards which use a zone of protection approach." The WHMP continues to note that '(t]he following provisions will be implemented to maintain wildlife habitat value within the context of the NFPA standards...: o Downed logs: Downed logs will be left as a source of visual screening if they will not act as ladder fuel, per guidance provided in the WPMP. Where possible, retain an average of two downed logs per acre, consistent with the goals of adjacent Shevlin Park (Boldenow 2008), o Standing snags (dead trees) provide food and nest site locations for wildlife, especially cavity nesting birds (Photo 1, Appendix B). Leave snags in place where practical. The density target for snags will be two of each per acre, consistent with the goals of adjacent Shevlin Park (Boldenow 2008). o Brush: Leave patches of brush (Photos 4 and 10, Appendix B), especially those associated with rock outcrops. Most brush under the drip line of trees must be removed often enough to maintain a distance of at least three times the height of the ground fuel and the tree crown. In open areas, older and taller brush patches can be maintained and remain consistent with the fire protection guidelines (WMFHP). ■ Patches of brush will specifically be left within the conservation area along the western boundary of the PSA and opportunistically within other open spaces and building lots when also in compliance with the WMFHP (see current brush patch pattern in Figure 3). • Brush patches will be maintained in a mosaic pattern following a multi year cycle of brushing so that brush patches will vary in age and height. o Slope -specific brush treatments: Hand -pruning treatments will be used to maintain brush patches as wildlife habitat while also providing breaks in the linear continuity of brush patches oriented along steep slopes and rock outcrops; consistent with a fire fuels reduction practice (WMFHP). The Wildlife Habitat Management Plan continues on to note that the above vegetation treatments will support deer and other wildlife species and particularly suggests its application in the conservation area along the western border of the subject property, in order to maintain a north - south travel corridor. 247-19-000500-MP, 247-19-000501-TP Page 26 of 89 Article IV, Section 4.2gives the HOA the authority to utilize the operating fund for the 'performance of all the Association's obligations under the following: the COL Agreement, the Revised Wildlife Health and Forest Health and Management Plan the Wildlife Habitat Management Plan, the Wildfire Protection and Management Plan...". Article XIl of the draft CC&Rs provides the HOA authority to enforce the requirements of the CC&Rs. This criterion has been met through the establishment of vegetation standards through the wildlife habitat and wildfire mitigation plans, and the mechanism by which to fund and enforce them through the CC&Rs." The Hearings Officer concurs with the Applicant's statements and finds the homeowners association's responsibilities for vegetation management will be met. c. Specific setbacks from wildlife corridors. FINDING: Applicant, in its burden of proof, stated: "The primary wildlife corridor identified by the Wildlife Habitat Management Plan is a north -south route along the western edge of the subject property. The proposed tentative plan includes a significant structure setback from Shevlin Park (minimum of 450 feet). The conservation area proposed in the Preliminary Plan along the western edge of the PSA is designed to provide a minimally obstructed wildlife travel corridor, especially for deer and elk, that is contiguous with adjacent protected areas to the west of the development (the riparian zone of Tumalo Creek, Shevlin Park, and public lands farther to the west). in conjunction with other development plans and their associated open spaces located to the north and south of the PSA, this conservation area provides a key link in the landscape - level continuity of wildlife habitat maintained along Tumalo Creek. The corridor follows the natural topography of a ridge that parallels the creek, originating on the southwestern border with the WA zone, and gently dropping down in elevation toward the riparian zone of Tumalo Creek to the north-west of the PSA (Figure 4). According to ODFW biologists, deer migrating through the Bend area on an east -west path are already likely to avoid residentially developed areas, travelling instead along the southern border of the City; however, animals approaching the developed areas are likely to continue using contiguous corridors such as that along Tumalo Creek.' The setback from this wildlife corridor on the western border of the subject property will be enforced through easements and CC&Rs." The Hearings Officer concurs with the Applicant's statements and finds the wildlife setbacks will be met. d. Provisions which demonstrate coordination with the Wildfire Mitigation Plan described below to establish joint management 247-19-000500-MP, 247-19-000501-TP Page 27 of 89 objectives and designated areas for wildlife habitat measures which are outside of the defensible space and wildfire mitigation areas. FINDING: Applicant, in its burden of proof, stated: "A Revised Wildlife Habitat and Forest Health Management Plan was developed to "balance the protection of wildlife with a wildland fire management plan." This plan includes a comprehensive vegetation management plan to reduce the threat of wildfire spread while maintaining quality habitat. This plan includes various strategies for wildlife habitat measures outside of the defensible space and wildfire mitigation areas, such as: - maintenance of forest health and landscape resiliency - fencing standards for the subdivision - limitations on allowed uses (e.g, no high intensity recreational uses) Additionally, Section VIl of this plan includes restrictions for the entire subject property, including: o No high -intensity recreational uses (i.e. playgrounds or motorized uses) will be allowed. o No fireworks of any type are allowed, o No hunting, discharge of firearms or trapping is allowed. o No use of drones will be allowed." The Hearings Officer concurs with the Applicants statements and finds the wildfire and wildlife plans accomplish the joint management objective of this criterion. e. Requirements for annual review of the plan by a professional biologist and a reporting of those findings and any recommended alterations to the plan to the homeowner association. FINDING: The Applicant's draft CC&Rs include a section' that provides for the periodic review of the Wildlife Habitat Management Plan. Staff, in the Staff Report, noted that this criterion requires annual review. The Hearings Officer finds that with a condition requiring that Applicant's proposed CC&R's be modified to require "annual" review of the Wildlife Habitat Management Plan this approval criterion can be met. 2. A Wildfire Mitigation Plan prepared by a professional forester that identifies and includes enforceable measures to prevent the ignition and spread of wildfire, and contains provisions for deed restrictions and/or restrictive covenants, enforced by a homeowners association, which include but are not limited to the following components: a. Requirement to develop and maintain all residential lots in compliance with the most current National Fire Protection Association (NFPA) Zone 1, 2 and 3 standards, containing concentric rings extending outward from the structure implementing the defense in depth approach, with Zone 1: 30 feet adjacent to structures, Zone 1 Exhibit G, Section 5.5(C) 247-19-000500-MP, 247-19-000501-TP Page 28 of 89 2: 30 to 100 feet from structures, and Zone 3: 100 to 200 feet from structures. FINDING: Applicant, in its burden of proof, stated: "A Wildfire Mitigation Plan (Exhibit C) was developed by Singletree Enterprises, LLC, dated December 79, 2017. This Plan includes vegetation management standards for structural defensible space, including the designation of Zone 1, Zone 2 and Zone 3 as concentric rings around structures, each with specific requirements. The developer's agreement with Central Oregon Landwatch (Exhibit E) includes an integrated plan for the management of wildlife habitat and forest health management. This plan requires the implementation and enforcement of these zonal rings for vegetation management around structures: Zone 1: 30 Feet Adjacent to Structures Use non-flammable landscaping materials within first 5 feet of structures. All vegetation and combustibles are removed from under decks and within 5 feet of the home or auxiliary structures. Outside of 5 feet, low -growing, resin free fire resistive plants are carefully spaced and maintained, and are kept free of dead material that do not allow flame lengths greater than 3 feet. Areas of lawn must be well irrigated and regularly mowed. Mature trees are pruned to a height of 6 to 10 feet from the ground with no brush inside of the tree dripline. Juvenile trees are not pruned more than 20% of stem length. Trees may not touch the home. No firewood storage is permitted outside of an enclosed structure. This zone includes driveway/road surfaces. Zone 2: 30 to 100 Feet from Structures Plants are low -growing and well irrigated. Tree canopies are spaced at 15-20 feet, or 30 feet between small groups of small trees. Zone 2 treatments will extend to the lot boundary (beyond the 100 foot zone) when the lot is adjacent to down -hill slopes greater than 20%. Small individual brush species will be irrigated, maintained free of dead material and outside the dripline of trees. Zone 3: 100 to 200 Feet from Structures Trees will be thinned and pruned, woody debris removed and brush fields mowed or removed. Density of taller trees will be reduced and maintained so that canopies do not touch. Taller, more mature trees however, typically present less of a fire risk as long as brush is not present within the tree drip -line and lower limbs are pruned. The Draft Westgate CC&Rs (Exhibit G) Section 4.4 requires compliance with the Wildfire Management, including a requirement for the Association to submit applications for the recognition of each homesite under the Firewise Communities USA/Recognition Program. Section 10.2 requires that landscaping plans for each Homesite be in compliance with the Wildfire Protection Management Plan. in addition, Section 5.5 of the draft CC&Rs requires that "The Association shall comply with all terms of the COL Agreement, Revised Wildlife Habitat and Forest Health Management Plan, and Wildlife Habitat Management Plan." 247-19-000500-MP, 247-19-000501-TP Page 29 of 89 The Applicant has complied with the requirements of this section through numerous mechanisms - through the Wildfire Mitigation Plan, the Revised Wildlife Habitat and Forest Health Management Plan. These Plans are implemented and enforced by the draft CC&Rs and the Central Oregon Landwatch Agreement." [emphasis in original] The Hearings Officer concurs with the Applicant's above -quoted statements and finds the proposal complies with the three -zone, concentric ring defensible space requirements of this section. b. Enhanced construction design and materials to prevent home ignition from external fire sources. c. Requirements and specific provisions for ongoing vegetation management funded through homeowner assessment and performed, monitored, and enforced by the homeowners association, as adopted by Deschutes County or as recommended in forest management plan, whichever standard is the most stringent. d. Provisions which demonstrate coordination with the Wildlife Habitat Management Plan described above to establish joint management objectives and designated areas for wildlife habitat measures which are outside of the defensible space and wildfire mitigation areas. e. Requirements for annual review of the plan by a professional forester and annual reporting of those findings and any recommended alterations to the plan to the homeowner association. D. A Stewardship Community Plan which includes provisions designed to educate residents of the unique resource values of the area and the community goals to utilize best management practices in the community development and operation to protect wildlife habitat and to establish and implement firewise community strategies. FINDING: Applicant, in its burden of proof, responded to this approval criterion with the following comments: "The Stewardship Community Plan is included in Exhibit E as part of the Rio Lobo - Landwatch Agreement. This agreement encompasses the Revised Wildlife Habitat and Forest Health Management Plan, which includes community implementation approaches for the integration of the wildlife and wildfire management plans, focused on the unique resource values of the area. The intent of the plan is to balance the protection of wildlife with a wildland fire management plan within the Westside Transect Zone, to ensure the protection of wildlife habitat in a known wildfire hazard area. The Plan includes best management practices to protect the wildlife habitat and implement firewise community strategies, most of which were developed in collaboration with multiple agencies during the zone change process. More specifically, the integrated plan includes prescriptive requirements for: o Vegetation management standards for structural defensible space (by zones) 247-19-000500-MP, 247-19-000501-TP Page 30 of 89 o Vegetation management standards for wildlife o Management of Forest Health and Landscape Resiliency o Structural Design and Materials Selection o Operational Issues and Standards (evacuation routes, communication plans) o Wildlife Habitat Measures This Stewardship Community Plan requires education and enforcement by the homeowners' association through the CC&Rs. The Hearings Officer concurs with the Applicant's statements but questions how the details of this "Stewardship Community Plan" are planned to be communicated to new residents. Similar to earlier findings where the Hearings Officer found that a condition of approval was required to assure that the CC&Rs required an annual review of the Wildlife Management Plan. The CC&Rs should be required to include annual review and reporting requirements of this approval criterion. With such a condition the Hearings Officer finds this approval criterion can be met. E. Mandate deed restrictions and/or restrictive covenants that implement lot -specific and applicable general provisions of the Wildlife Habitat Management and Wildfire Mitigation Plans. The deed restrictions and/or restrictive covenants must run with the land and must be enforceable by the homeowner association. FINDING: Applicant, in its burden of proof, responded to this approval criterion with the following comments: "Draft restrictive covenants for the proposed subdivision are included in Exhibit G. These CC&Rs require individual lot compliance with the Wildlife Habitat Management Plan, Wildfire Protection and Management Plan and the Revised Wildlife Habitat and Forest Health Management Plan. These CC&Rs will be recorded and will run with the land, enforceable by the homeowner association. The restrictive covenants submitted with this master plan and tentative plan submittal are in draft form and the Applicant reserves the right to make corrections and changes prior to recording." On July 19, 2019, the Applicant provided the following supplemental statement: "The Applicant's intent is to record CC&Rs in phases. During each phase, CC&Rs will be recorded for the individual lots created, but not for the remainder parcel, until it is developed into individual lots in subsequent phases." Staff, in the Staff Report, concurred with the Applicant's above -quoted statements but noted that the final CC&Rs presented for recording must substantially conform to those reviewed or modified as part of this review process. Staff noted, in the Staff Report, that revised CC&Rs would be reviewed in detail at the time of Final Plat submissions and if the CC&Rs were found to contain more than corrections or minor changes related to the approval criteria listed in the Staff Report, then the Community Development Planning Division has the right to reject the modifications. 247-19-000500-MP, 247-19-000501-TP Page 31 of 89 The Hearings Officer agrees that Applicant, Homeowners Association or successors in interest, should have the right to modify the proposed CC&Rs. However, the Hearings Officer also agrees with Staff that any changes must be in substantial conformance with to the CC&Rs submitted by Applicant (Exhibit G, Section 5.5(C)) and may not diminish the Applicant's or successor to Applicant's obligations related to the Wildlife Management Plan, Wildfire Protection and Management Plan and Revised Wildlife Habitat and Forest Health Management Plan (including review and reporting requirements). F. Mandate that the recorded duties and obligations of the homeowners association compel the homeowners association to provide for enforcement of the deed and/or covenant restrictions, maintenance of any common property, open space or resource management corridors and private streets, and provide for the assessment and collection of fees to fund the deed and/or covenant restrictions. FINDING: Applicant, in its burden of proof, responded to this approval criterion with the following comments: "The draft CC&Rs for the subdivision are included in Exhibit G. Article III defines specific types of assessments that will be required to 'promote the recreation, health, safety and welfare of the Owners and Occupants of the Property for the improvement, operation and maintenance of the Common Maintenance Areas and other areas to be maintained by the Association.' The CC&Rs define the Common Maintenance Areas to include common areas, conservation area, natural areas, no -build zone, multiuse paths, private streets, neighborhood signage, common area utilities, and Sage Steppe Drive until it is accepted as a county road by the County. The CC&Rs direct the development of an Operations Fund for these maintenance expenditures (Section 3.6). Article XII empowers the Association to enforce the CC&Rs, through the following measures: o assessment of fees (12.1(A)), o entering offending Homesite to remedy the violation (12.1(B)), o tow vehicles in violation (12.1(C)), o suspend voting rights and utility services (12(D)), and o bring suit or action against an owner (12(E)), The proposed development can comply with this criterion upon recording of the CC&Rs at time of final plat, based on the detailed draft CC&Rs including requirements and enforcement." [emphasis in original] Staff, in the Staff Report, expressed concurrence with the Applicant's above -quoted statements but noted that the reference to Sage Steppe should include the entire extension of Sage Steppe and McClain Drive. Staff, in the Staff Report, also noted that the public road extension through the subdivision may never be accepted by the County for road maintenance, although it will be required 247-19-000500-MP, 247-19-000501-TP Page 32 of 89 to be dedicated to the public. This topic is further discussed in the findings for Title 17 approval criteria in this decision. Article XII, section 12.1 in Applicant's proposed/draft CC&Rs gives the HOA, "the right to do any or all of the following", followed by a list of enforcement actions. Staff, in the Staff Report, expressed concern as to whether this enforcement provision "compelled" the HOA to enforce the CC&Rs or only grants the option to enforce the CC&Rs. Staff, in the Staff Report, requested that the Hearings Officer consider requiring the Applicant to revise the CC&Rs to achieve compliance. Staff, in the Staff Report, noted that the WTZ Zone criteria sets out responsibility for the Homeowners Association to inspect, review, enforce, and manage several ongoing critical aspects of the subdivision that are described in the sections above. The Hearings Officer shares the Staffs above -referenced concerns. In particular, enforcement obligations related to the Wildlife Management Plan, Wildfire Protection and Management Plan and Revised Wildlife Habitat and Forest Health Management Plan (including review and reporting requirements) should be mandatory upon the Homeowners Association. Staff, in the Staff Report, also raised "a speculative concern" related to the Homeowners Association and CC&Rs. Staff inquired as to what would happen if the Homeowners Association for the proposed development would disband, dissolve or otherwise cease operation. Staff was concerned about the County's ability to enforce the requirements set out in this decision. Staff, in the Staff Report, noted that Section 2.1 of the draft CC&Rs provides some guidance. This section states that "in the event that the Association is at any time dissolved, whether inadvertently or deliberately, it shall automatically be succeeded by an unincorporated association having the same name and purpose ..." Staff questioned whether or not the County had the ability to enforce against the Homeowners Association, an unincorporated association, or individual lot owners for non- compliance. The Hearings Officer finds it reasonable and appropriate to require, as conditions of approval in this decision, the Applicant to have CC&Rs that address relevant approval criteria. The Hearings Officer finds that it is beyond the Hearings Officer's authority to anticipate and thereby condition the approval upon the possible demise of the proposed Homeowners Association. The Hearings Officer finds that the County, under the approval and conditions imposed in this decision, has the right to enforce the decision. If the Homeowners Association remains in legal existence the County shall have the right to enforce conditions of approval against the Homeowners Association. If the Homeowners Association disbands, dissolves or otherwise ceases operation the County shall have the right to enforce the approval and conditions of this decision against any successor organization and/or against individual property owners within the development. The Hearings Officer finds, with the condition of approval set forth below, that this approval criteria can be met. HOA Reporting: As an ongoing condition of approval, the Homeowners Association, or any successor or equivalent organization or if no such organization then individual owners of lots shall be required to annually review of the Wildlife Habitat Management Plan. Further, the 247-19-000500-MP, 247-19-000501-TP Page 33 of 89 County may request the Homeowners Association, or any successor organization or if no such organization then individual owners of lots, shall to provide within a reasonable timeframe documentation demonstrating compliance with the reporting, annual review, maintenance, and other responsibilities associated with the Wildlife Habitat Management Plan, Wildfire Mitigation Plan, and Stewardship Community Plan, as described in DCC 19.22.060 (C)-(F). G. If phasing is proposed, a phasing plan for the tentative subdivision plats [shall be provided]. Each tentative subdivision application shall include a plat map meeting the subdivision requirements of DCC Title 17, the Subdivision / Partition Ordinance, except as may be specifically modified herein. FINDING: The Applicant proposed a subdivision in eight phases as part of its Tentative Plan, Compliance with this criterion is ensured through the review of Title 17 criteria within this decision. Section 19. 22.070. Street Improvements. Subject to applicable provisions of DCC Title 17, streets within the Westside Transect Zone may be private. For proposed private roads, on -street parking is prohibited and the owner shall submit proof of a homeowner's association, deed restriction or the equivalent to assure continued ownership, maintenance and repair of the private streets. A. Notwithstanding the allowance for private roads, the county may determine that public road(s) are required to meet public access and/or regional transportation needs and goals, including but not limited to a collector road to provide north -south connectivity through the Westside Transect Zone. The owner and homeowners association shall be jointly liable and responsible for all costs associated with initial construction of any such public road (including the one-year guarantee). FINDING: The proposed subdivision included a public right-of-way for a north -south connection, which will be an extension between McClain Drive and Sage Steppe and constructed to County collector road standards. The Applicant stated the developer would be responsible for initial construction costs and the Homeowners Association would be responsible for maintenance of the public road. The draft CC&Rs (Exhibit G) Section 1.10 - Common Maintenance Areas and Article IV requires the use of the Operating Fund for the maintenance of common areas. The other roads within the subdivision are proposed to be private roads. The Applicant's burden of proof stated: "The remainder of the roadways are proposed to be private; ownership, maintenance and management of which will be conducted by the homeowners association. The draft CC&Rs (Exhibit G) include all private streets in the definition of "Common Areas" and require the HOA maintain all common areas. The CC&Rs further address the "no parking" enforcement and maintenance of these private roadways: o Section 10.11 addresses the enforcement of "no parking" on private streets. o Section 4.2 details the uses of the Operating Fund, including the performance of the Association's obligations under the Roadway Maintenance Agreement." 247-19-000500-MP, 247-19-000501-TP Page 34 of 89 Staff, in the Staff Report, recommended the following condition of approval for parking. The Hearings Officer finds, with Applicant's proposed CC&Rs and Staffs recommended condition below, these approval criteria will be met Street Parking~ As an ongoing condition of approval, on -street parking is prohibited on private roads within the subdivision. Section 19.22.080.Off-street Parking. Off-street parking shall be provided as required in DCC 19.80. FINDING: Compliance with the parking standards of DCC 19.80 are reviewed within this decision. Section 19.22.090. Fence Standards. The following fencing provisions shall apply for any fences constructed as a part of residential development: A. New fences shall be designed to permit wildlife passage. The following standards and guidelines shall apply unless an alternative fence design which provided equivalent wildlife passage is approved by the County after consultation with the Oregon Department of Fish and Wildlife: 1. The distance between the ground and the bottom strand or board of the fence shall be at least 15 inches. 2. The height of the fence shall not exceed 48 inches above ground level. 3. Smooth wire and wooden fences that allow passage of wildlife are preferred. Woven wire fences are discouraged. 8. Fences encompassing less than 10,000 square feet which surround or are adjacent to residences or structures are exempt from the above fencing standards. FINDING: No specific fencing is proposed at this time. The Applicant stated that the draft CC&Rs require compliance with DCC 18.22.090 and also prohibit perimeter fencing of home sites, except for wooden split rail fencing which abuts open space. Staff, in the Staff Report, proposed the following condition of approval to ensure ongoing compliance with these criteria. The Hearings Officer concurs with Staffs comments and recommended condition of approval. The Hearings Officer finds that with the proposed CC&R's and Staffs recommended condition of approval these criteria can be met. Fencing: As an ongoing condition of approval, any fence constructed as a part of residential development shall comply with DCC 19.22.080. 247-19-000500-MP, 247-19-000501-TP Page 35 of 89 Chapter 19.80, Off -Street Parking and Loading Section 19.80.030. Off Street Parking. Off street parking space shall be provided and maintained as set forth in DCC 19.80.030 for all uses in all zones, except for the CB zone. Such off street parking spaces shall be provided at the time a new building is hereafter erected or enlarged or the use of a building existing on the effective date of DCC Title 19 is changed. Improved off street parking shall mean paved with two inches of paving. Section 19.80.040. Number of Spaces Required. Off-street parking shall be provided as follows: A. Residential. One, two and three-family dwellings: 2 spaces per dwelling unit. FINDING: The maximum density within the WTZ Zone is one single-family dwelling per lot. Staff, in the Staff Report, recommended the following condition of approval to ensure compliance with DCC 19.80. The Hearings Officer concurs with Staffs comments and recommended condition of approval. Larking: Prior to the issuance of building permits for dwellings on individual lots, each dwelling unit shall provide a minimum of two paved parking spaces. Chapter 19.88, Provisions Applying to Special Use Standards. Section 19.88.210. Solar Setbacks. A. Purpose. The purpose of DCC 19.88.210 is to provide as much solar access as practical during the winter solar heating hours to existing or potential buildings by requiring all new structures to be constructed as far south on their lots as is necessary and feasible. B. Standards. Every new structure or addition to an existing structure shall meet the following standards except as provided in DCC 19.88.210(C): 1. South Wall Protection Standard. The south wall protection standard is established in Appendix A, and all new structures or additions shall meet this standard if feasible. If it is not feasible due to physical constraints of the lot, including but not limited to, rock outcroppings, septic systems, existing legal restrictions or lot dimensions as determined by the Planning Director, then the structure or addition must be located as far to the south on the lot as feasible and must meet the standard set forth in DCC 19.88.210(B)(3)(b). 2. South Roof Protection Standard. All new structures or additions to existing structures shall meet the standard for south roof protection set forth in Appendix B. 247-19-000500-MP, 247-19-000501-TP Page 36 of 89 3. Exceptions. The south roof protection standard shall not apply only if the applicant establishes: a. That the structure cannot be located on the lot without violating the requirements contained in Appendix B of Ordinance No. 83 041; and b. That the structure is built with its highest point as far to the south as feasible; and i. That the structure is a single family residence with a highest point less than or equal to 16 feet high; or, if not a single family residence; ii. That it is a permitted or conditional use for the lot. C. Exemptions. 1. The governing body may exempt from the provisions of DCC 19.88.210 any area which it determines unfeasible for solar use because the area is already substantially shaded due to heavy vegetation or steep north facing slopes and any area or zone in which taller buildings are planned. 2. The Planning Director shall exempt a structure from the provisions of DCC 19.88.210 if the structure will shade only a protected area in which solar uses are not feasible because the protected area is already substantially shaded at the time a request for exemption is made and approved by the Planning Director. 3. The Planning Director shall exempt a structure from the provisions of DCC 19.88.180, if the structure is in conformance with a solar height restriction as provided in Ordinance 81 043, Deschutes County Subdivision/Partition Ordinance, as amended. FINDING: The smallest proposed lots in the subdivision will be a minimum of 2.5 acres in size, leaving enough space to meet the solar setback requirements. Compliance with this criterion is already ensured by the Setback and Yard Requirements condition of approval. TITLE 17 OF THE DESCHUTES COUNTY CODE, SUBDIVISIONS: Chapter 17.16, Approval of Subdivision Tentative Plans. Section 17.16.040. Protective Covenants and Homeowner Association Agreements. Landowner covenants, conditions, and restrictions and homeowner association agreements are not relevant to approval of subdivisions and partitions under DCC Title 17, unless otherwise determined by the County to carry out certain conditions of approval, such as road maintenance or open space preservation. Any provisions in such agreements not in conformance with the provisions of DCC Title 17 or applicable zoning ordinances are void. 247-19-000500-MP, 247-19-000501-TP Page 37 of 89 FINDING: As discussed above in this decision, there are CC&R requirements for the proposed subdivision pursuant to DCC 19.22. No other landowner covenants, conditions, or restrictions have been proposed or considered as part of this application. Section 17.16.050. Master Development Plan. An overall master development plan shall be submitted for all developments affecting land under the same ownership for which phased development is contemplated. The master plan shall include, but not be limited to, the following elements: FINDING: A Master Development Plan is required under this section as well as DCC 19.22.060. A. Overall development plan, including phase or unit sequence; FINDING: The Applicant proposed an overall development plan of an 85-lot subdivision with eight specific phases. A portion of the sheet containing the phasing map submitted as part of the application is included below as Figure 2. Figure 2 - Phasing Plan I0i1.YlW vR W 1 51 TT,5LR 'T ti 5,0011 1UPt' AMA WM" LEGEND: PHASE 14LOTS PHASE 2 E„_y{ 5 LOTS PHASE I I 12 LOTS PHASE 4 trr,*..m 9 LOTS PHASE 5 l l 5 LOTS PHASE 6 10 LOTS PHASE7 11 LOTS PHASE 15 „„ 1i LOTS TRACT LOI LOT N0. PHASING PLAN sca![ 5'-1.52 j B. Show compliance with the comprehensive plan and implementing land use ordinances and policies; FINDING: Titles 17, 18, 19, and 22 of the DCC are the implementing land use ordinance and policies of the Deschutes County Comprehensive Plan. All relevant chapters and sections of the DCC are reviewed for compliance in this decision. Staff noted, in the Staff Report, that it was unaware of any specific goals or policies contained in the Comprehensive Plan that are not addressed by the 247-19-000500-M P, 247-19-000501-TP Page 38 of 89 relevant criteria found within the DCC, as it applies to this subdivision proposal. Based upon the evidence in the record the Hearings Officer concurs with Staffs comments. C. Schedule of improvements, initiation and completion; FINDING: The Applicant indicated that it intended to initiate the development of one or two phases immediately upon receiving land use approval. The application goes on to explain the development of the other phases will occur as market conditions and demand allows. The goal is to complete one or two phases per year, with an anticipated completion of the subdivision within approximately eight years, depending on the real estate market. D. Overall transportation and traffic pattern plan, including bicycle, pedestrian and public transit transportation facilities and access corridors; FINDING: The application materials show a north -south public right-of-way connection, several private roads, a separated multiuse path for bicyclists and pedestrians, and natural trails, No public transportation facilities are provided. E. Program timetable projection; FINDING: This criterion is similar to (C) above and the Hearings Officer incorporates those findings here. F. Development plans for any common elements or facilities; FINDING: The Applicant has not proposed any common development or facilities beyond the roads, multiuse path, and natural trails. The only development proposed in the open space Tracts A, B, and C are natural trails. G. If the proposed subdivision has an unknown impact upon adjacent lands or lands within the general vicinity, the Planning Director or Hearings Body may require a potential development pattern for streets, bikeways and access corridors for adjoining lands to be submitted together with the tentative plan as part of the master development plan for the subject subdivision. FINDING: Applicant, in its burden of proof, stated: "Adjacent lands to the north and east are urban (City) residential subdivisions; Shevlin Park is immediately to the west; and The Tree Farm, a rural (County) residential subdivision is to the south. County staff and Applicant have coordinated for several years regarding the subject property, through the Westside Transect Zone change process and pre -application meetings for this master plan and tentative plan application. Mitigation for potential impacts to the Shevlin Park area are addressed throughout this narrative, through the development and implementation of the wildfire and wildlife management plans. Due to the presence of topography in the eastern side of the property, no impacts are anticipated to the adjacent development to the east as there are no 247-19-000500-MP, 247-19-000501-TP Page 39 of 89 access points between the two areas. The Tree Farm to the south was developed with an understanding of potential future development to the north, and even included an abutting street (Sage Steppe) for future connectivity to the north. The Applicant was party to the Westside Infrastructure Group (WIG) and entered into a Development Agreement (WIG DA, Ordinance NS-2316, effective November 16, 2018) with the City of Bend that assessed the infrastructure impacts and mitigations to City infrastructure as a result of the combined westside development. Ordinance NS-2316 notes "lb]ecause the uses and density of the Properties are either prescribed by the BCP and BDC ...the overall off -site infrastructure impact as a result of development of the Properties can be reasonably determined and addressed. The purpose of this Agreement is to provide for the equitable allocation of these costs, and define development triggers and assignment of responsible parties for the construction of the required public improvements to fully mitigate off -site sewer, water and vehicular transportation infrastructure impacts from the development of the Properties subject to this Agreement" As such, the WIG Development Agreement analyzed all City water and street services for this master plan area. The terms of the Development Agreement commit the Applicants and the City of Bend to the terms of the agreement for a period of 15 years. No unknown impacts on adjacent lands have been determined that would require submittal of potential development patterns for adjoining lands." The Hearings Officer accepts, as reasonable and appropriate, Applicant's above -quoted statements. The only impact to adjoining land that may be of concern is the place of connection along the extended McClain Drive at the boundary between the Subject Property and the adjacent property at 3229 NW Shevlin Park Road, Map and Tax Lot 17-11-26, 400. The adjacent property is within the city limits and McClain Drive will need to be extended through that property as well to ultimately provide access to and through the Subject Property. The Hearings Officer finds, based upon Applicant's statements, that this approval criterion will be satisfied. Section 17.16.070. Development Following Approval. Once a master plan is approved by the County, the plan shall be binding upon both the County and the developer; provided, however, after five years from the date of approval of the plan, the County may initiate a review of the plan for conformance with applicable County regulations. if necessary, the County may require changes in the plan to bring it into conformance. FINDING: This section is included for reference to these procedural requirements. Section 17.16.080. Tentative Plan as a Master Plan. A. As an alternative to the filing of a master plan for phased development, the applicant may file a tentative plan for the entire development. The plan must comply with the provisions of DCC Title 97 for tentative plans. 247-19-000500-MP, 247-19-000501-TP Page 40 of 89 B. If the applicant proposed to phase development, he shall provide sufficient information regarding the overall development plan and phasing sequence when submitting the tentative plan. C. if the tentative plan is approved with phasing, the final plat for each phase shall be filed in accordance with DCC 17.24.020 through 17.24.110. FINDING: The Applicant was required to apply for Master Plan approval regardless of this section. However, the Applicant has also proposed a Tentative Plan that covers the entire Master Plan area and includes details of an eight -phase development. All Final Plats will be reviewed and processed in accordance with the procedures of DCC Title 17. Section *17.16.100. Required Findings for A proval. A tentative plan for a proposed subdivision shall not be approved unless the Planning Director or Hearings Body finds that the subdivision as proposed or modified would meet the requirements of this title and Titles 18 through 21 of this code and is in compliance with the comprehensive plan. Such findings shall include, but not be limited to, the following: A. The subdivision contributes to the orderly development and land use patterns in the area, and provides for the preservation of natural features and resources such as streams, lakes, natural vegetation, special terrain features, agricultural and forest lands and other natural resources. FINDING: Compliance with Titles 17 and 19 of the Deschutes County Code is addressed in findings in this decision. The requirements of the Comprehensive Plan are codified within the Zoning Ordinance. Because no change to the Comprehensive Plan is sought by this application, conformance with Title 17 and 19 establishes conformance with the Comprehensive Plan. Applicant, in its burden of proof, stated: "Compliance with Deschutes County Code is addressed in this narrative and associated exhibits. The requirements of the Comprehensive Plan are codified within the Titles 17, 18, and 19, so compliance with these titles establishes compliance with the Comprehensive Plan. Orderly Development and Land Use Patterns in the Area: The proposed Westgate subdivision was designed to meet the lot requirements of the Westside Transect Zone, with minimum 2.5-acre lots, while providing efficient roadway connectivity within the development and to adjacent developments. The elements of the proposed subdivision are clearly delineated for specific uses, including roadway tracts, individual lots, conservation areas, no build areas, and open space. This clear delineation, combined with CC&Rs, creates orderly development by which uses and responsibilities are known. The traffic circulation, water service and onsite septic systems have been planned for the entire development, to provide a comprehensive system for orderly development. Preservation of Natural Features and Resources: Natural resources within or nearby Westgate include wildlife habitat native vegetation, and topography. The cornerstone of this development 247-19-000500-MP, 247-19-000501-TP Page 41 of 89 is the integration and implementation of wildlife habitat and wildfire mitigation plans, which include significant preservation of natural features and resources along the western border of the subject property, as discussed in great length below and in the associated Exhibits C and D. These plans identify resources (wildlife and wildlife habitat) and risks (habitat loss or wildfire) and strategies to preserve the resources by managing both together (e.g. appropriate management of vegetation to maintain wildlife habitat while still reducing fire fuel). The plans will be supported by the CC&Rs that require and enforce compliance with the Wildlife Habitat Management Plan and the Wildfire Mitigation Plan for the subdivision." The Hearings Officer concurs with the Applicant's statements and finds the proposed development contributes to orderly development and natural features. B. The subdivision would not create excessive demand on public facilities, services and utilities required to serve the development. FINDING: Applicant, in its burden of proof, stated: "The public facilities and services required by the proposed subdivision include water, sewage treatment, roads, electricity, natural gas, telephone service, and police and fire protection. These are addressed individually below. Additionally, the Applicant was party to the Westside Infrastructure Group (WIG) and entered into a Development Agreement (WIG DA, Ordinance NS-2316, effective November 16, 2018) with the City of Bend that assessed the infrastructure impacts and mitigations to City infrastructure as a result of the combined westside development. Ordinance NS-2316 notes (b]ecause the uses and density of the Properties are either prescribed by the BCP and BDC ...the overall off -site infrastructure impact as a result of development of the Properties can be reasonably determined and addressed. The purpose of this Agreement is to provide for the equitable allocation of these costs, and define development triggers and assignment of responsible parties for the construction of the required public improvements to fully mitigate off -site sewer, water and vehicular transportation infrastructure impacts from the development of the Properties subject to this Agreement." As such, the WIG Development Agreement analyzed all City water and street services for this master plan area. The terms of the Development Agreement commit the Applicants and the City of Bend to the terms of the agreement for a period of 15 years. Water: The Applicant proposes to provide domestic water to the proposed residential lots through the extension of City of Bend water service. The City provided a Will Serve letter, which is included in Exhibit A. Sewage Treatment: The Applicant proposes to serve the residential lots with individual on -site private underground septic systems. At the time of tentative plan submittal, numerous septic submitted septic approvals have been received from Deschutes County Environmental Soils Division. The Applicant understands that septic approvals shall be received prior to submittal of final plat. 247-19-000500-MP, 247-19-000501-TP Page 42 of 89 Roads/Access: Site access will be provided through the extension and connection of McClain Drive and Sage Steppe. This north -south roadway connection will be dedicated to the public. The other proposed roadways in the subdivision are proposed to be private roadways, with ownership and maintenance by the homeowners association. The development's Site Traffic Report (STR) is included in Exhibit F and notes the following findings, demonstrating that the proposed development will not create excessive demands on the transportation system: o The trips for 85 lots will be less than those previously assumed number for the South Transect property in the WIG study and associated WIG Agreement. o Off -site mitigations and assessments to City of Bend facilities have already been determined with the WIG agreement. While this analysis did not focus on Deschutes County facilities no additional analysis should be required based on the access routes. Electric: Electrical service will be provided by Pacific Power and a Will Serve letter is included in Exhibit B, Telephone: A Will Serve letter from Century Link is included in Exhibit B. Natural Gas: A Will Serve letter from Cascade Natural Gas is included in Exhibit B. po/ice: Police protection will be provided by the Deschutes County Sheriff Fire Protection: Fire protection will be provided by the City of Bend Fire Department."[emphasis in original] In regards to the public services aspect of these criteria, Staff (in the Staff Report) noted that the Bend Fire Department responded to the Notice of Application with several requirements for access and fire protection, which the Applicant will be required to meet. The Fire Departments comments are quoted in full earlier in this decision. The Fire Departments comments describe requirements related to construction activities and fire protections such as access during construction, gates, water supply, fire flow analysis, addresses, etc. Several other requirements from the Fire Department address timing that is more appropriate to be associated with final plat approval and are addressed separately in this decision. Staff, in the Staff report, suggested a condition of approval (set forth below) to ensure the public safety requirements submitted by the Bend Fire Department will be met. The Hearings Officer finds that with Staffs recommended condition this criterion can be met. Fire District Approval: Prior to issuance of building permit on individual lots, the Applicant shall submit confirmation from the Bend Fire Department verifying the proposed lots, phase, or entire master plan area will conform to applicable Fire Code as it relates to the following requests from the Fire Department: • Prior to the issuance of construction permits the Applicant shall provide to the City of Bend Fire Department a proposed plan for fire apparatus access to the construction site. • Gates intended for automatic operation shall be designed, constructed and installed to comply with the requirements of ASTM F 2200. A Knox® Key Switch shall be installed at all electronic gates. 247-19-000500-MP, 247-19-000501-TP Page 43 of 89 • An approved water supply capable of supplying the required fire flow for fire protection shall be provided. • Documentation of the available fire flow shall be provided to the fire code official prior to final approval of the water supply system. Provide the City of Bend Fire Department a fire flow analysis. • New and existing buildings shall have approved address numbers, C. The tentative plan for the proposed subdivision meets the requirements of Oregon Revised Statutes Section 92.090. FINDING: The relevant provisions of ORS 92.090 and the proposal's compliance with those provisions are addressed in the findings below. ORS 92.090 (1) Subdivision plat names shall be subject to the approval of the county surveyor or, in the case where there is no county surveyor, the county assessor. No tentative subdivision plan or subdivision plat of a subdivision shall be approved which bears a name similar to or pronounced the same as the name of any other subdivision in the same county, unless the land platted is contiguous to and platted by the same party that platted the subdivision bearing that name or unless the party files and records the consent of the party that platted the contiguous subdivision bearing that name. All subdivision plats must continue the lot numbers and, if used, the block numbers of the subdivision plat of the same name last filed. On or after January 1, 1992, any subdivision submitted for final approval shall not use block numbers or letters unless such subdivision is a continued phase of a previously recorded subdivision, bearing the same name, that has previously used block numbers or letters. FINDING: The Applicant requested the subdivision name Westgate. This name was submitted to the County Surveyor for review and the approval letter from the County Surveyor, dated May 30, 2019 is included as Exhibit I. (2) No tentative plan for a proposed subdivision and no tentative plan for a proposed partition shall be approved unless: (a) The streets and roads are laid out so as to conform to the plats of subdivisions and partitions already approved for adjoining property as to width, general direction and in all other aspects unless the city or county determines it is in the public interest to modify the street or road pattern. FINDING: Applicant, in its burden of proof, stated: "The proposed north -south public road will connect the existing McClain Drive to the north and Sage Steppe to the south. The proposed subdivision is bounded on the west by Shevlin Park and on the east by topography. As such, there are no through east -west streets. The north -south public 247-19-000500-MP, 247-19-000501-TP Page 44 of 89 road has been designed to collector standards, through coordination with the County Roadway Department. In addition, the proposed multiuse path along this roadway was designed at eight feet wide, to match the existing width of the path along Sage Steppe." The Deschutes County Road Department ("Road Department"), on July 23, 2019, submitted comments related to Applicant's proposal. The Road Department comments are included in the July 24, 2019 Staff Memo which is part of the record in this case. The Road Department, in its July 23, 2019 comments, acknowledged that the Applicant and Road Department had "coordinated their conceptual plans" but the Road Department then stated that it: "did not indicate any acceptance of deviation from the private road standards in Deschutes County Code (DCC) 17.48.180 and 17.48A. Rather, Road Department staff stated to the Applicant prior to application submission that they would need to provide justification or mitigation for a variance to the County private road standard in their application burden of proof Road Department staff acknowledges that the Applicant has provided a reason for the variance in their burden of proof, but the Road Department is neutral as to whether or not the Applicant has provided a sufficient reason. The Road Department, in its July 23, 2019 comments, recommended conditions of approval. Staff, in the July 24, 2019 Staff Memo, requested the Hearings Officer consider the Road Department's recommended conditions. The Hearings Officer incorporates the findings for DCC 17.48 and DCC 17.36.140 as additional findings for this approval criterion. Wisco, on behalf of Applicant, testified at the Hearing related to the collector roadway extension of McClain Drive and Sage Steppe. Wisco utilized a Power Point presentation at the Hearing (Exhibit B). Wisco, in the Power Point presentation, provided a copy of a typical section of McClain Drive/Sage Steppe (Slide 12 of Exhibit B). Slide 12 showed a 28-foot wide roadway and an 8-foot wide multiuse path. Slide 13 of the Power Point presentation includes a portion of DCC 17.48A, Table B. Slide 13 indicates that minimum bikeway widths to be 8-feet. Slide 16 of the Power Point presentation is copy of a portion of Table B notes for DCC 17.48A. Footnote 1 of the Table B, as shown on Slide 16, indicates that while 10-feet is the standard width for multiuse paths 8-foot paths are acceptable "where long-term usage is expected to be low, and with proper horizontal and vertical alignment to assure good sight distances." Wisco, on Slide 15 of the Power Point presentation, noted that DCC 19.22.060 requires compatibility with surrounding development. Wisco, in the Power Point presentation, noted that Sage Steppe road in the adjacent Tree Farm development includes 8-foot paths (citing low volume of usage). Wisco concluded, on Slide 15 of the Power Point presentation, that the present proposal for an 8- foot path matches the existing path in the Tree Farm development. Wisco, on Slides 16-20 of the Power Point presentation (Exhibit B), described the private roads (not the extension of McClain Drive/Sage Steppe) included in the Applicant's proposed subdivision (See also pages 46-47 of the Applicant's Burden of Proof statement). The private roads are proposed to 247-19-000500-MP, 247-19-000501-TP Page 45 of 89 be 24-feet of pavement (4-feet greater than the minimum code requirement) but with no multiuse path. Wisco, on Slide 16 of the Power Point presentation stated that the private roads would only serve the parcels abutting the private roads and not serve other origins/destinations. Staff, in the Staff Report, concurred with the Applicants statements and concluded that the proposed development would conform to the street and road patterns in the area. The Hearings Officer finds the proposed "collector" roadway (extension of McClain Drive/Sage Steppe) will meet County standards. The Hearings Officer finds that the private roads will meet the pavement width standard but not technically the "path" standard. The Hearings Officer agrees with Wisco's statements that the private roads will experience low volume of local traffic and will not serve other origins or destinations. The Hearings Officer finds, for the purpose of this approval criterion, the collector roadway (extension of McClain Drive and Sage Steppe) and the private roads are laid out so as to conform to the plats of subdivisions and partitions already approved for adjoining property as to width and general direction. The Hearings Officer finds that with a condition requiring multiuse paths along the private roads this approval criterion will be met. (See findings for DCC 17.36.140 and 17.48). (b) Streets and roads held for private use are clearly indicated on the tentative plan and all reservations or restrictions relating to such private roads and streets are set forth thereon. FINDING: The proposed streets and roads for private use are clearly indicated on the Tentative Plan. The Hearings Officer finds this criterion is met. (c) The tentative plan complies with the applicable zoning ordinances and regulations and the ordinances and regulations adopted under ORS 92.044 that are then in effect for the city or county within which the land described in the plan is situated. FINDING: This decision identifies applicable zoning ordinances and evaluates compliance with those ordinances. The Hearings Officer finds that the Tentative Plan, as conditioned, complies with the applicable zoning ordinances and regulations, and the ordinances and regulations adopted under ORS 92.044. (3) No plat of a proposed subdivision or partition shall be approved unless: (a) Streets and roads for public use are dedicated without any reservation or restriction other than reversionary rights upon vacation of any such street or road and easements for public or private utilities. (b) Streets and roads held for private use and indicated on the tentative plan of such subdivision or partition have been approved by the city or county. (c) The subdivision or partition plat complies with any applicable zoning ordinances and regulations and any ordinance or regulation adopted under ORS 92.044 that are then in effect for the city or county within which the land described in the subdivision or partition plat is situated. (d) The subdivision or partition plat is in substantial conformity with the provisions of the tentative plan for the subdivision or partition, as approved. 247-19-000500-MP, 247-19-000501-TP Page 46 of 89 (e) The subdivision or partition plat contains a donation to the public of all sewage disposal and water supply systems, the donation of which was made a condition of the approval of the tentative plan for the subdivision or partition plat. (f) Explanations for all common improvements required as conditions of approval of the tentative plan of the subdivision or partition have been recorded and referenced on the subdivision or partition plat. FINDING: The proposed roads will consist of one public right-of-way and all other roads will be private roads. All roads will be reviewed by the County Road Department prior to final plat approval. The proposal includes the right-of-way dedication associated with the extension of McClain Drive. Compliance with the zoning ordinance is addressed in the findings in this decision. Sections (a), (d), (e), and (f) of this section establish requirements for final plat review and have been added as conditions of approval to comply with this statute section. Road Approval: Prior to final plat approval of each phase, streets and roads held for private use and indicated on the tentative plan shall be approved by the County Road Department. Streets and roads for public use shall be dedicated to the public without any reservation or restriction other than reversionary rights upon vacation of any such street or road and easements for public or private utilities. Conformity to Tentative Plan: Prior to final plat approval of each phase, the subdivision final plat shall be in substantial conformity with the provisions of the tentative plan for the subdivision, as approved. Explanations: Prior to final plat approval of each phase, explanations for all common improvements required as conditions of approval of the tentative plan of the subdivision shall be recorded and referenced on the subdivision plat. (4) Subject to any standards and procedures adopted pursuant to ORS 92.044, no plat of a subdivision shall be approved by a city or county unless the city or county has received and accepted: (a) A certification by a city -owned domestic water supply system or by the owner of a privately owned domestic water supply system, subject to regulation by the Public Utility Commission of Oregon, that water will be available to the lot line of each and every lot depicted in the proposed subdivision plat; (b) A bond, irrevocable letter of credit, contract or other assurance by the subdivider to the city or county that a domestic water supply system will be installed by or on behalf of the subdivider to the lot line of each and every lot depicted in the proposed subdivision plat; and the amount of any such bond, irrevocable letter of credit, contract or other assurance by the subdivider shall be determined by a registered professional engineer, subject to any change in such amount as determined necessary by the city or county; or (c) In lieu of paragraphs (a) and (b) of this subsection, a statement that no domestic water supply facility will be provided to the purchaser of any lot depicted in the proposed subdivision plat, even though a domestic water supply source may exist. 247-19-000500-MP, 247-19-000501-TP Page 47 of 89 A copy of any such statement, signed by the subdivider and indorsed by the city or county, shall be filed by the subdivider with the Real Estate Commissioner and shall be included by the commissioner in any public report made for the subdivision under ORS 92.385 (Examination). If the making of a public report has been waived or the subdivision is otherwise exempt under the Oregon Subdivision Control Law, the subdivider shall deliver a copy of the statement to each prospective purchaser of a lot in the subdivision at or prior to the signing by the purchaser of the first written agreement for the sale of the lot. The subdivider shall take a signed receipt from the purchaser upon delivery of such a statement, shall immediately send a copy of the receipt to the commissioner and shall keep any such receipt on file in this state, subject to inspection by the commissioner, for a period of three years after the date the receipt is taken. FINDING: The Applicant proposed the City of Bend's city -owned domestic water supply system to serve all lots. The Applicant included a "will -serve" letter from the City (Attachment A to the Burden of Proof - Application) indicating the willingness of the City to provide such service to the Subject Property. However, the letter is not a "certification [...] that water will be available to the lot line of each and every lot depicted in the proposed subdivision plat". The Hearings Officer finds that with the following condition of approval this criterion can be met. Domestic Water Supply Certification: Prior to final plat approval of each phase, the Applicant shall provide to the County a certification by the city -owned domestic water supply system that water will be available to the lot line of each and every lot depicted in the proposed subdivision plat. (5) Subject to any standards and procedures adopted pursuant to ORS 92.044, no plat of a subdivision shall be approved by a city or county unless the city or county has received and accepted: (a) A certification by a city -owned sewage disposal system or by the owner of a privately owned sewage disposal system that is subject to regulation by the Public Utility Commission of Oregon that a sewage disposal system will be available to the lot line of each and every lot depicted in the proposed subdivision plat; (b) A bond, Irrevocable letter of credit, contract or other assurance by the subdivider to the city or county that a sewage disposal system will be installed by or on behalf of the subdivider to the lot line of each and every lot depicted on the proposed subdivision plat; and the amount of such bond, irrevocable letter of credit, contract or other assurance shall be determined by a registered professional engineer, subject to any change in such amount as the city or county considers necessary; or (c) In lieu of paragraphs (a) and (b) of this subsection, a statement that no sewage disposal facility will be provided to the purchaser of any lot depicted in the proposed subdivision plat, where the Department of Environmental Quality has approved the proposed method or an alternative method of sewage disposal for the subdivision in its evaluation report described in ORS 454.755 (Fees for certain reports on sewage disposal) (1)(b). A copy of any such statement, signed by the subdivider and indorsed by the city or county shall be filed by the subdivider with the Real Estate 247-19-000500-MP, 247-19-000501-TP Page 48 of 89 Commissioner and shall be included by the commissioner in the public report made for the subdivision under ORS 92.385 (Examination). if the making of a public report has been waived or the subdivision is otherwise exempt under the Oregon Subdivision Control Law, the subdivider shall deliver a copy of the statement to each prospective purchaser of a lot in the subdivision at or prior to the signing by the purchaser of the first written agreement for the sale of the lot. The subdivider shall take a signed receipt from the purchaser upon delivery of such a statement, shall immediately send a copy of the receipt to the commissioner and shall keep any such receipt on file in this state, subject to inspection by the commissioner, for a period of three years after the date the receipt is taken. FINDING: The Applicant proposed onsite subsurface sewage disposal systems on individual lots. The Hearings Officer finds that with the following condition of approval this approval criterion can be met. Sewage Disposal Statement: Prior to final plat approval of each phase, a statement that no sewage disposal facility will be provided to the purchaser of any parcel depicted in the proposed partition plat, where the Department of Environmental Quality has approved the proposed method or an alternative method of sewage disposal for the subdivision in its evaluation report described in ORS 454.755 (Fees for certain reports on sewage disposal) (1)(b). A copy of any such statement, signed by the Applicant and indorsed by the County shall be filed by the Applicant with the Real Estate Commissioner and shall be included by the commissioner in the public report made for the subdivision under ORS 92.385 (Examination). If the making of a public report has been waived or the partition is otherwise exempt under the Oregon Subdivision Control Law, the Applicant shall comply with the applicable provisions of ORS 92.090(5)(c). (6) Subject to any standards and procedures adopted pursuant to ORS 92.044, no plat of subdivision or partition located within the boundaries of an irrigation district, drainage district, water control district water improvement district or district improvement company shall be approved by a city or county unless the city or county has received and accepted a certification from the district or company that the subdivision or partition is either entirely excluded from the district or company or is included within the district or company for purposes of receiving services and subjecting the subdivision or partition to the fees and other charges of the district or company. FINDING: The Subject Property is not located within an irrigation district or any other district mentioned in this ORS section. The Hearings Officer finds this approval criterion does not apply. D. For subdivision or portions thereof proposed within a Surface Mining Impact Area (SMIA) zone under DCC Title 18, the subdivision creates lots on which noise or dust sensitive uses can be sited consistent with the requirements of DCC 78.56, as amended, as demonstrated by the site plan and accompanying information required under DCC 17.16.030. 247-19-000500-MP, 247-19-000501-TP Page 49 of 89 FINDING: The Subject Property is not within a Surface Mining Impact Area Zone. The Hearings Officer finds this approval criterion does not apply. E. The subdivision name has been approved by the County Surveyor FINDING: This requirement has already been addressed under subsection (C) above, under ORS 92.090(1). Section 17.16.105. Access to Subdivisions. No proposed subdivision shall be approved unless it would be accessed by roads constructed to County standards and by roads under one of the following conditions: A. Public roads with maintenance responsibility accepted by a unit of local or state government or assigned to landowners or homeowners association by covenant or agreement; or B. Private roads, as permitted by DCC Title 18, with maintenance responsibility assigned to landowners or homeowners associations by covenant or agreement pursuant to ORS 105; or C. This standard is met if the subdivision would have direct access to an improved collector or arterial or in cases where the subdivision has no direct access to such a collector or arterial, by demonstrating that the road accessing the subdivision from a collector or arterial meets relevant County standards that maintenance responsibility for the roads has been assigned as required by this section. FINDING: The proposed primary access will be a public road constructed to the County's collector standards, connecting McClain Drive to Sage Steppe. All other roads within the subdivision will be private roads. Maintenance of all roads within the subdivision will be assigned to the Homeowners Association by the CC&Rs. Access to the subdivision will be from the existing McClain Drive (city local street) which leads to Shevlin Park Road (city arterial road) from the north, and Sage Steppe (public rural local road) which leads to Ridgeline Drive (private rural local road), to Tree Farm Drive (private rural local road), and finally to Skyliners Road (forest highway) to the south. The Hearings Officer finds the approval criteria under subsections (a) and (b) are met. Section 17.16.115. Traffic Impact Studies. A. The traffic studies will comply with DCC 18.116.310. FINDING: In response to this criterion, the Applicant's burden of proof stated: "The site is expected to generate more than 200 weekday daily trips and more than 20 peak hour trips. Per DCC 18.116.310(C)(3)(c), the minimum thresholds for a traffic impact analysis (TIA) are exceeded based on the trip generation. The TIA was completed for this development along with other transect and UGB expansion areas through the Westside Infrastructure Group (WIG) 2018. 247-19-000500-MP, 247-19-000501-TP Page 50 of 89 The two Westside Transect Areas along with other projects on the west side of Bend are anticipated to have impacts on the transportation facilities in the area. The property owners formed the WIG to work with the City and collaborate on the identification of the transportation needs for the desired development. As a result, multiple regional projects were identified, some of which would be City projects and others to be funded by the WIG. The contribution towards off -site mitigations for Westgate and the documentation of this process has been established in the "Westside Infrastructure Group Proportionate Sharing - Transportation Methodology and Findings" Memorandum dated June 28, 2018 prepared by Kittelson & Associates, Inc. While this work effort primarily focused on City of Bend transportation infrastructure, it is the Applicant's understanding that pending additional direction from Deschutes County only a Site Traffic Report (STR) is required for the Westgate Subdivision. The Applicant has submitted an STR, which is included in Exhibit F. This STR was prepared by a professional engineer at Transight Consulting, in compliance with DCC 18.116.310, and includes all the required minimum study requirements of DCC 18.116.310(F), including a vicinity map, trip generation forecast, trip distribution and assignment safety analysis, and a description of the proposed development and surrounding land uses." The Senior Transportation Planner submitted comments regarding the traffic study, repeated here for ease of reference: "The applicant has submitted a traffic study dated June 18, 2019, which demonstrates the current proposal is consistent with the traffic analysis done for the larger plan amendment/zone change approved under 247-18-612-ZC/613-PA/614-TA for the entire 737 acres. The mitigations required for that change from Urban Area Reserve (UAR-10) to WTZ were resolved in that 2018 decision. The current proposal does not result in any additional deficiencies in the roadway system." The Hearings Officer finds the submitted traffic study satisfies DCC 18.116.310, thus satisfying this criterion. Chapter 17.24, Final Plat. Section 17.24.060. Required Information. In addition to that required for the tentative plan or otherwise specified by law, the following information shall be shown on the submitted plat: E. The exact location and width of streets and easements intercepting the boundary of the tract. F. Tract, lot or parcel boundary lines and street rights of way and centerlines, with dimensions, bearing or deflection angles, radii, arcs, points of curvature and tangent bearings. Normal high water lines for any creek, bay or other body of water. Tract boundaries and street bearings shall be shown to the nearest second with the basis of bearings. Distances shall be shown to the nearest 0.01 feet. G. Streets. The width of the streets being dedicated and the curve data shall be based on the street centerline. In addition to the centerline dimensions, the radius and central angle shall be indicated, together with the long chord distance and bearing. 247-19-000500-MP, 247-19-000501-TP Page 51 of 89 H. Easements. The location, dimensions and purpose of all recorded and proposed public easements shall be shown on the plat along with the County Clerk's recording reference if the easement has been recorded with the County Clerk. All such easements shall be denoted by fine dotted lines and clearly identified. If an easement is not of record, a statement of the grant of easement shall be given. If the easement is being dedicated by the plat, it shall be properly referenced in the owner's certificate of dedication. FINDING: This section provides information on requirements for submittal of the final plat. Within this section and DCC 17.24.070 are criteria relevant to conditions of approval typically received from the County Road Department. The Road Department submitted, on July 23,2019, a memorandum/letter to Staff. The Road Department July 23, 2019 memorandum/letter recommended the following conditions of approval: "Prior to construction of public and private road improvements: • Applicant shall submit road improvement plans to the Road Department for approval prior to commencement of construction pursuant to DCC 17.40.020 and 17.48.060. The roads shall e designed to the minimum standard for a private road pursuant to 17.48.160, 17.48.180, and 17.48A or pursuant to the master plan upon approval. Road improvement plans shall be prepared in accordance with all applicable sections of DCC 17.48. Prior to final plat approval by Road Department: • Applicant shall complete road improvements according to the approved plans and all applicable sections of DCC 17.48. Improvements shall be constructed under the inspection of a registered professional engineer consistent with ORS 92.097 and DCC 17.40.040. Upon completion of road improvements, applicant shall provide a letter from the engineer certifying that the improvements were constructed in accordance with the approved plans and all applicable sections of DCC 17.48. • Maintenance of all public and private roads, including multiuse paths, 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. • All easements of record or existing rights of way shall be noted on the final plat pursuant to DCC 17.24.060(E), (F), and (H). • The surveyor preparing the plat shall, on behalf of Applicant, submit information showing the location of the existing roads in relationship to the rights of way to Deschutes County Road Department. This information can be submitted on a worksheet and does not necessarily have to be on the final plat. All existing road facilities and new road improvements are to be located within legally established or dedicated rights of way. if research reveals that inadequate right of way exists or that the existing roadway is outside of the legally established or dedicated right of way, additional right of way will be dedicated as directed by Deschutes County Road Department to meet the applicable requirements of DCC Title 17 or other County road standards. This condition is pursuant to DCC 17.24.060(E), (F), and (G), and 17.24.070(E)(8). 247-19-000500-MP, 247-19-000501-TP Page 52 of 89 • Applicant shall submit as -constructed improvement plans to Road Department pursuant to DCC 17.24.070(E)(1). • Applicant shall submit plat to Road Department for approval pursuant to DCC 17.24.060(R)(2), 100, 110 and 140." Staff included, in the Staff Report (issued prior to the July 23, 2019 Road Department memorandum/letter), the following suggested conditions: Existing Easements and Rights -of -Way: Prior to final plat approval of each phase, the Applicant shall note all easements of record and existing rights -of -way on the final plat, in conformance with DCC 17.24.060. Location of Roads: Prior to final plat approval of each phase, the surveyor or engineer submitting the plat shall submit information showing the location of the existing roads in relation to the roads rights -of -way, on behalf of the Applicant to the County Road Department. This information can be submitted on a worksheet and does not necessarily have to be on the final plat. All existing road facilities and new road improvements are to be located within legally established or dedicated rights -of -way. In no case shall a road improvement be located outside of a dedicated road right-of-way. If research reveals that inadequate right-of-way exists or that the existing roadway is outside of the legally established or dedicated right-of-way, additional right-of-way will be dedicated as directed by the Deschutes County Road Department to meet current County Standards. The Hearings Officer finds that the Road Department and Staff recommended conditions are generally consistent. The Hearings Officer finds that with Hearings Officer imposed conditions of approval that meet the goals of those proposed by the Road Department and Staff recommended conditions this approval criterion can be met. Section 17.24.120. Improvement Agreement. A. The subdivider may, in lieu of completion of the required repairs to existing streets and facilities, and improvements as specified in the tentative plan, request the County to approve an agreement between himself and the County specifying the schedule by which the required improvements and repairs shall be completed; provided, however, any schedule of improvements and repairs agreed to shall not exceed on[e] year from the date the final plat is recorded, except as otherwise allowed by ACC 17.24.120(F) below. The agreement shall also provide the following: FINDING: The Applicant initially did not request review and approval of an Improvement Agreement. However, in Applicant's proposed modification to Staff recommended conditions 16 and 21 the Applicant raised the possibility of one or more improvement agreements. The Hearings Officer modified Applicant's proposed language for conditions 16 and 21 to include review and approval by Deschutes County Community Development and County Counsel to assure such agreements meet the requirements of DCC 17.24.120. The Hearings Officer finds that with a 247-19-000500-MP, 247-19-000501-TP Page 53 of 89 condition that any improvement agreement(s) proposed by Applicant assuring the satisfaction of the requirements of DCC 17.24.120 this approval criterion will be met. Chapter 17.36, Design Standards. Section 17.36.020. Streets. A. The location, width and grade of streets shall be considered in their relation to existing and planned streets, topographical conditions, public convenience and safety, and the proposed use of land to be served by the streets. The street system shall assure an adequate traffic circulation system for all modes of transportation, including pedestrians, bicycles and automobiles, with intersection angles, grades, tangents and curves appropriate for the traffic to be carried, considering the terrain. The subdivision or partition shall provide for the continuation of the principal streets existing in the adjoining subdivision or partition or of their property projection when adjoining property which is not subdivided, and such streets shall be of a width not less than the minimum requirements for streets set forth in DCC 17.36. FINDING: The proposed street designs, including the location, width, and grades for the road within the proposed subdivision, are shown on the submitted Tentative Plan materials. The vehicular, bicycle and pedestrian traffic is north -south directional. The Subject Property is bounded by Shevlin Park to the west and by some steep topography to the east. No east -west through streets are proposed nor are any necessary. The north -south connection between Sage Steppe and McClain Drive is proposed to be constructed to County collector standards with 60-foot right of way with a separated multiuse path, as the direct route through the proposed development. With the exception of Shevlin Park property to the west, all adjoining properties are either developed with subdivisions or PUDs, or are in the planning stages for subdivision development. In regards to the "public convenience and safety" the Staff, in the Staff Report, noted that Bend Fire Department responded to the Notice of Application with several requirements for access and road design, which the Applicant will be required to meet. The Fire Departments comments are quoted in full above in this decision and describe requirements for access, fire hydrant locations, road surfacing, fire flow for fire protection (water), parking restrictions near fire hydrants, parking restrictions along fire access roads, etc. Several other requirements from the Fire Department address timing. The Hearings Officer finds that the timing issues are better addressed at the time of issuance of permits and are addressed separately in this decision. Staff, in the Staff Report, suggested a condition of approval (set forth below) to ensure the public safety requirements submitted by the Bend Fire Department will be met. The Hearings Officer agrees with Staffs comments and recommended condition of approval. Fire District Approval: Prior to final plat approval of each phase, the Applicant shall submit confirmation from the Bend Fire Department verifying the proposed phase or entire master plan will conform to applicable Fire Code as it relates to the following requests from the Fire Department: 247-19-000500-MP, 247-19-000501-TP Page 54 of 89 • Provide the City of Bend Fire Department a proposed site plan illustrating compliant fire apparatus access. • Approved signs or other approved notices or markings that include the words NO PARKING - FIRE LANE shall be provided for fire apparatus roads to prohibit parking on both sides of fire lanes 20 to 26 feet wide and on one side of fire lanes more than 26 feet to 32 feet wide. • Fire apparatus access roads shall be designed and maintained to support the imposed loads of fire apparatus (60,000 pounds GVW) and shall be surfaced (asphalt, concrete or other approved driving surface) as to provide all weather driving capabilities. • Provide a site plan to the City of Bend Fire Department illustrating a secondary access point. • Provide the City of Bend Fire Department a site plan illustrating the quantity and locations of fire hydrants. • Provide a site plan that illustrates any parking restrictions. B. Streets in subdivisions shall be dedicated to the public, unless located in a destination resort, planned community or planned or cluster development, where roads can be privately owned. Planned developments shall include public streets where necessary to accommodate present and future through traffic. FINDING: The proposed extension of McClain Drive will be a public right-of-way, but maintained by the subdivision home owner association. As a master -planned subdivision, the application is requesting the remainder of internal roads be private roads. The Hearings Officer finds these criteria can be met. Section 17.36.030. Division of Land. Any proposal for a condominium conversion which results in a division of real property shall comply with the provisions of DCC Title 17 and ORS 92. FINDING: No proposal for a condominium conversion is included in this application. Section 17.36,040. Existing Streets. Whenever existing streets, adjacent to or within a tract, are of inadequate width to accommodate the increase in traffic expected from the subdivision or partition or by the County roadway network plan, additional rights of way shall be provided at the time of the land division by the applicant. During consideration of the tentative plan for the subdivision or partition, the Planning Director or Hearings Body, together with the Road Department Director, shall determine whether improvements to existing streets adjacent to or within the tract, are required. If so determined, such improvements shall be required as a condition of approval for the tentative plan. Improvements to adjacent streets shall be required where traffic on such streets will be directly affected by the proposed subdivision or partition. FINDING: Applicant, in its burden of proof, responded to this approval criterion with the following comments: 247-19-000500-MP, 247-19-000501-TP Page 55 of 89 "There are no existing streets within the subject property. Access to the subject property will be provided through McClain Drive on the north and Sage Steppe on the south. Sage Steppe was recently completed, constructed to County standards, following the Countys approval of planning file PZ-247- 14-000243-TP. The existing McClain Drive to the north is currently inadequate, however, the development to the north (Pahlisch Homes, Skyline West) fronts on McClain Drive and has plans to improve the street to City standards, prior to the construction of the Westgate project's connection to McClain Drive." The connection between the existing McClain Drive right-of-way and the proposed extension of McClain Drive through the Subject Property is separated by a parcel owned by the same owner as the Subject Property and is within the City of Bend's Urban Growth Boundary. The Applicant submitted information for the adjacent parcel (Tax Lot 1711260000400) that is currently being reviewed for a subdivision and associated construction of McClain Drive. This access connection is approximately 200 feet in length but is critical for access to and through the Subject Property. As of the date of this decision there is no evidence in the record indicating the City of Bend approval or other disposition of the roadway issue over Tax Lot 1711260000400. Staff, in the Staff Report, suggested the following condition of approval: Adjacent McClain Drive Improvement: Prior to final plat approval of the first phase, the Applicant shall submit evidence that McClain Drive on Map and Tax Lot 1711260000400 has been approved by the City of Bend or otherwise constructed as a legal right-of-way and improved to City of Bend standards for streets. Staff, in the July 24, 2019 Staff Memo, expanded on its rationale underlying the condition of approval noted above. Staff, in the July 24, 2019 Staff Memo, stated: "The connection between the existing McClain Drive right-of-way and the proposed extension of McClain Drive through the subject property is separated by a parcel located within Bend city limits and is owned by the same owners as the subject property. The applicant has applied for master plan approval for a subdivision on that lot, but staff understands that the review of that master plan has not been completed at this time. This access connection is approximately 200 feet in length but is critical for access to and through the subject property. Staffs intention with the condition was two-part. Emergency access is the primary concern, especially when residential construction begins. The second concern is a long-term assurance that the subdivision will have two access points, as required by the Bend Fire Department in its comments and in DCC 17.48.160(D), in the event that full development of either the subject subdivision or the adjacent subdivision in the City is interrupted or abandoned. It was not staffs intention to impose needless delay with this suggested condition of approval. On July23, Tammy Wisco submitted the following comments and suggested a modification to the condition of approval: 247-19-000500-MP, 247-19-000501-TP Page 56 of 89 'Adjacent McClain Drive Improvement: Prior final plat approval of the first phase, the applicant shall submit evidence that McClain Drive on Map and Tax Lot 1711260000400 has been either constructed to City of Bend standards, or the applicant has submitted an improvement agreement and performance assurance for such construction. During all phases, fire access shall be provided as required by the Bend Fire Department. I removed the reference to city approvals and dedication of right-of-way, as that could be a very timely process, given that those applications were only recently submitted to the City. But, Kevin is planning to construct that segment in the first phase of Westgate anyway.' Staff believes this modified condition of approval can substitute for the original condition #16, as it addresses the concerns regarding fire and long-term access." The Hearings Officer concurs with the Staff comments quoted above. The Hearings Officer finds that Staffs stated goals of "emergency access" and "two -access points" are relevant and important. The Hearings Officer also agrees with Wisco's above quoted proposed substitute condition #16. The Hearings Officer finds that Wisco's proposed condition language should also include language assuring that the form of the improvement agreement and performance assurance are satisfactory to the Deschutes County Community Development Department and County Counsel. The Hearings Officer finds that with a condition of approval (Wisco's substituted condition #16 language, including an assurance the form of the improvement agreement and performance assurance is satisfactory to the County) this criterion can be met. Section 17.36.050. Continuation of Streets. Subdivision or partition streets which constitute the continuation of streets in contiguous territory shall be aligned so that their centerlines coincide. FINDING: The proposed extension of McClain Drive and Sage Steppe will be required to be aligned so that their centerlines coincide. The Hearings Officer finds the Tentative Plan materials indicate this will occur. The Hearings Officer finds that with approval of the proposed Tentative Plan this criterion will be met. Section 17.36060 Minimum Right of Way and Roadwa Width. The street right of way and roadway surfacing widths shall be in conformance with standards and specifications set forth in DCC 17.48. Where DCC refers to street standards found in a zoning ordinance, the standards in the zoning ordinance shall prevail. FINDING: The Hearings Officer adopts the findings for ORS 92.090 (2), as set forth earlier in this decision, as additional findings for this approval criterion. The Hearings Officer also adopts the findings for DCC 17.48.140, as set forth later in this decision, as additional findings for this approval criterion. 247-19-000500-MP, 247-19-000501-TP Page 57 of 89 The relevant street surfacing width standards of DCC 17.48, Table A for a collector road are 60' ROW, 28'-46' paved surface with footnote (9) stating: "The larger of the two widths is necessary if a shoulder bikeway is required (4' for collector and 5' for arterial) 11' travel lane, 3'-5' paved shoulder, and 2'gravel shoulder." Footnote (23) for multiuse paths states: "The minimum width is 8 ft. However, 8 ft. wide multiuse paths are not recommended in most situations because they may become over -crowded. They should only be constructed as short connectors, or where long term usage is expected to be low, and with proper horizontal and vertical alignment to assure good sight distances. 10 ft is the standard width for a two-way multiuse path but they should be 12 ft wide in areas with high mixed -use. Optimum width should be based on the relative use by cyclists and pedestrians. High use by skaters may also require greater width". For the collector road (extension of McClain Drive and Sage Steppe) the Applicant proposed a 60- foot ROW, 28-foot paved surface, 14-foot travel lane, 2-foot paved shoulder, 6-foot gravel shoulder/swale, and a separated 8-foot paved multiuse path. The relevant street surfacing width standards of DCC 17.48, Table A for a private road are 20-foot or 28-foot paved surface with footnote (8) stating: '20' allowed for cul-de-sacs and roads with low anticipated traffic volumes as long as separate multiple use paths are provided. 28' width required (including the required 4' striped shoulder bikeway in each direction) for circulator and primary subdivision access roads and other roads when separate multiple use paths are not provided." The Applicant proposed private roads with a 24-foot paved width, 14-foot travel lanes, 3-foot gravel shoulders, and a paved 8-foot multiuse path within easement areas. Staff noted, in the Staff Report, that the Tentative Plan materials showed the paved multiuse path only being present on short portions of the private roads, specifically on "Road A" from the southeast corner of Lot 1 to the trail easement between Lots 3 and 4. The Applicant's July 16, 2019 Clarification Memo indicated the multiuse path is not intended for the section on "Road D" along the southern boundary of Lot D, despite being shown on the Tentative Plan materials. The Deschutes County Senior Transportation Planner submitted comments with concerns about these proposed widths and comments from the Road Department were expected prior to the Hearing (but were not available as of the date of the Staff Report). The Senior Transportation Planner stated: "Deschutes County Code 17.48.050 and its Table A sets a paved width of 20' or 28' for private roads; for a 20' foot private road multiuse paths are required for narrower width. DCC 17.48.140(8)(2) states multiuse paths have a standard width of 10'and 12' feet if the multiuse path will be subject to high volumes of multiple users. The applicant is proposing a 24' width for the private roads, but apparently only for the short sections which lead to natural trails; the remaining 247-19-000500-MP, 247-19-000501-TP Page 58 of 89 portions of private roads will be 20' with no multiuse path. Staff is uncertain if the code allows this hybrid. The applicant posits this is consistent to what the County approved in the adjacent Miller Tree Farm under 247-14-000243-TP, The proposed collector, an extension of McClain Drive to Sage Steppe, will be a public road, and also have an 8' multiuse path based on anticipated low volumes of usage and the road's low speed. While staff can understand the rationale for the reduced width on a private road that will see little to no through traffic, staff does not support similar reduced widths fora north -south collector that ultimately wilt provide a critical link between Johnson Road/Shevlin Park Road to the north and Skyliners Road and Century Drive, aka Cascade Lakes Highway, to the south." Wisco, at the Hearing, testified and submitted a Power Point presentation addressing this approval criterion and the County Staff comments quoted above (See Power Point presentation Slides 10,13, 14, 15, 16, 17, 18, 19, 20 and 21). Wisco stressed, in her testimony, that the extension of McClain Drive and Sage Steppe would be a County "collector" roadway. Wisco indicated, during her testimony and Power Point presentation, that the extension of McClain Drive and Sage Steppe, are proposed to meet County collector roadway width standards. Wisco, in the Power Point presentation (Slide 14), stated that the McClain Drive/Sage Steppe multiuse path met the "minimum" width standards (DCC 17.48 A, Table B). As noted in the Hearings Officer's findings for ORS 92.090 (2) the proposed multiuse path along the extension of McClain Drive and Sage Steppe was expected to experience low use volume. Bend Parks and Recreation District ("BPRD"), through Hearing testimony of Quinn Keever (see also July 24, 20019 written record submission), agreed that an 8-foot hard surface trail (off -set from the road) was acceptable along the extension of McClain Drive and Sage Steppe. Applicant proposed 24 feet of pavement for the private roads (not the extension of McClain Drive and Sage Steppe - aka referred to as Roads A, B, C and D on the Site Plan). Wisco testified, at the Hearing, that the proposed 24-foot pavement for private roads is 4-feet greater than the minimum (See Power Point presentation Slides 19 & 20). Applicant proposed no multiuse paths on the private roads excepting for Road A (connecting to path to Shevlin Park). BPRD requested, in addition to the section of multiuse path between the collector and path on Road A, that the Applicant construct an 8-foot hard surface path on Road D between the collector and proposed nature trail running north from Road D (between proposed lots 72 and 73). Wisco, in her Hearing testimony and Power Point presentation (See page 21), requested the Hearings Officer approve the proposed private streets without requiring a separate path (excepting for the path connecting the McClain Drive and Sage Stepp, along private Road A, to the proposed nature trail). The Hearings Officer finds, for the purposes of this approval criterion, that proposed collector (connecting McClain Drive and Sage Steppe) and private roads are reasonable and appropriate. The Hearings Officer specifically finds that the roadway widths (including pavement areas) for both the collector and private roads meets relevant County standards and also this approval criterion. The Hearings Officer specifically finds that the proposed collector multiuse path meets relevant County standards and this approval criterion. The Hearings Officer will address the multiuse path on private roads in the findings for DCC 17.48,140. 247-19-000500-MP, 247-19-000501-TP Page 59 of 89 Section 17.36.070. Future Resubdivision. Where a tract of land is divided into lots or parcels of an acre or more, the Hearings Body may require an arrangement of lots or parcels and streets such as to permit future re - subdivision in conformity to the street requirements and other requirements contained in DCC Title 17. FINDING: All proposed lots are more than one acre in size. Staff, in the Staff Report, stated that it does not anticipate the need for rearrangement for future re -subdivision as the newly -created WTZ Zone has a minimum acreage size of 2.5 acres. The Hearings Officer concurs with Staffs comments related to this approval criterion. Section 17.36.080. Future extension of streets. When necessary to give access to or permit a satisfactory future division of adjoining land, streets shall be extended to the boundary of the subdivision or partition. FINDING: The Subject Property is surrounded by publicly -owned lands or properties that have already been or are in the process of being subdivided. The proposal includes a north -south through street connecting Sage Steppe to McClain Drive. The Hearings Officer finds this approval criterion will be met. Section 17.36100.Fronta e Roads. If a land division abuts or contains an existing or proposed collector or arterial street, the Planning Director or Hearings Body may require frontage roads, reverse frontage lots or parcels with suitable depth, screen planting contained in a non -access reservation along the rear or side property line, or other treatment necessary for adequate protection of residential properties and to afford separation of through and local traffic. All frontage roads shall comply with the applicable standards of TableA of DCC Title 17, unless specifications included in a particular zone provide other standards applicable to frontage roads. FINDING: The Hearings Officer finds that no frontage road or reverse frontage lots are required. Section 17.36.110. Streets Adjacent to Railroads, Freeways and Parkways. When the area to be divided adjoins or contains a railroad, freeway or parkway, provision may be required for a street approximately parallel to and on each side of such right of way at a distance suitable for use of the land between the street and railroad, freeway or parkway. In the case of a railroad, there shall be a land strip of not less than 25 feet in width adjacent and along the railroad right of way and residential property. If the intervening property between such parallel streets and a freeway or a parkway is less than 80 feet in width, such intervening property shall be dedicated to park or thoroughfare use. The intersections of such parallel streets, where they intersect with streets that cross a 247-19-000500-MP, 247-19-000501-TP Page 60 of 89 railroad, shall be determined with due consideration at cross streets of a minimum distance required for approach grades to a future grade separation and right-of-way widths of the cross street. FINDING: The Hearings Officer finds that the Subject Property is not adjacent to a railroad, freeway, or parkway. The Hearings Officer finds this approval criterion is not applicable to the proposed subdivision. Section 17.36.120. Street Names. Except for extensions of existing streets, no street name shall be used which will duplicate or be confused with the name of an existing street in a nearby city or in the County. Street names and numbers shall conform to the established pattern in the County and shall require approval from the County Property Address Coordinator. FINDING: No specific names have been proposed for the private roads. The Applicant requested the extension of McClain Drive to be named McClain Drive as well. The Deschutes County 911 District submitted comments, in part stating: "9-1-1 would like to request that McClain Dr end at the intersection with Road `D' and Road W. At this intersection, Sage Steppe Dr would begin and continue south to the existing blocks in the Tree Farm subdivision. This request is to avoid any potential addressing conflicts that could result in the delayed response of emergency services. If this is agreed upon, we would ask that this is made clear on the site plan and annotated correctly on the subdivision plat." Staff, in the Staff Report, noted there are two roads labeled "Road B" on the Tentative Plan materials, but that naming these different road names at the time of final plat should resolve this conflict. Staff recommended the following condition of approval. Street Names: Prior to final plat approval of each phase, no street name shall be used which will duplicate or be confused with the name of an existing street in a nearby city or in the County. Street names and numbers shall conform to the established pattern in the County and shall require approval from the County Property Address Coordinator. The north -south collector road shall be named McClain Drive north of the intersection of "Road A" and "Road D", and shall be named Sage Steppe south of the same intersection. The Hearings Officer concurs with the Deschutes County 911 District submitted comments and Staffs responsive comments. The Hearings Officer finds that with the Staff recommended condition this criterion can be met. Section 17.36.130. Sidewalks. A. Within an urban growth boundary, sidewalks shall be installed on both sides of a public road or street and in any special pedestrian way within the subdivision or 247-19-000500-MP, 247-19-000501-TP Page 61 of 89 partition, and along any collectors and arterials improved in accordance with the subdivision or partition. B. Within an urban area, sidewalks shall be required along frontage roads only on the side of the frontage road abutting the development. C. Sidewalk requirements for areas outside of urban area are set forth in section 17.48.175. In the absence of a special requirement set forth by the Road Department Director under DCC 17.48.030, sidewalks and curbs are never required in rural areas outside unincorporated communities as that term is defined in Title 18. FINDING: The proposed subdivision is not located within an Urban Growth Boundary or in any of the Urban Unincorporated Communities included within DCC 17.48.175. The Director of the Road Department has not applied additional requirements for sidewalks as allowed under DCC 17.48.030. The Hearings Officer finds that sidewalks are not required. Section 17.36.140. Bicycle. Pedestrian and Transit Requirements. Pedestrian and Bicycle Circulation within Subdivision. A. The tentative plan for a proposed subdivision shall provide for bicycle and pedestrian routes, facilities and improvements within the subdivision and to nearby existing or planned neighborhood activity centers, such as schools, shopping areas and parks in a manner that will: 1. Minimize such interference from automobile traffic that would discourage pedestrian or cycle travel for short trips; 2. Provide a direct route of travel between destinations within the subdivision and existing or planned neighborhood activity centers, and 3. Otherwise meet the needs of cyclists and pedestrians, considering the destination and length of trip. FINDING: The Tentative Pian provides a paved multiuse path along the extension of McClain Drive and short sections of "Road A" and "Road D" to connect to natural trails. The natural trail connection to the north, from Road A, will connect to existing trails in and near Shevlin Park. This separated multiuse path will minimize interference with automobile traffic along the extension of McClain Drive and Sage Steppe. Issues related to the width of streets and the multiuse path, raised by the Senior Transportation Planner, Staff and Applicant are discussed in other sections of this decision. Staff, in the Staff Report, indicated that there is no evidence of other existing or planned neighborhood activity centers outside of the subdivision. The Hearings Officer, upon review of the record, concurs with this Staff statement. The Hearings Officer finds this approval criterion can be met. B. Subdivision Layout. 1. Cul-de-sacs or dead-end streets shall be allowed only where, due to topographical or environmental constraints, the size and shape of the parcel, or a lack of through -street connections in the area, a street connection is determined by the Planning Director or Hearings Body to be infeasible or 247-19-000500-MP, 247-19-000501-TP Page 62 of 89 inappropriate. In such instances, where applicable and feasible, there shall be a bicycle and pedestrian connection connecting the ends of cul-de-sacs to streets or neighborhood activity centers on the opposite side of the block. FINDING: The proposal includes four private streets ending in cul-de-sacs to access interior lots. As described in previous findings, there is no need for an east -west connection through the subdivision, beyond the natural trails that are provided to access Shevlin Park and lands to the east. The main route through the subdivision will be the north -south extension of McClain Drive, which includes a separated multiuse path for pedestrians and cyclists, The Hearings Officer finds this approval criterion will be met. 2. Bicycle and pedestrian connections between streets shall be provided at mid block where the addition of a connection would reduce the walking or cycling distance to an existing or planned neighborhood activity center by 400 feet and by at least 50 percent over other available routes. FINDING: Applicant, in its burden of proof, responded to this approval criterion with the following comments: "(T]he bicycle/pedestrian traffic is north -south directional, as the development is bounded by Shevlin Park to the west and by topography to the east, with no through streets east or west. A direct north -south roadway connection is proposed for vehicles, bicycles, and pedestrians. There are no existing or planned neighborhood activity centers that would warrant mid -block connections." The Hearings Officer, based upon a review of the record, concurs with Applicant's above -quoted statement. The Hearings Officer finds this approval criterion is met. 3. Local roads shall align and connect with themselves across collectors and arterials. Connections to existing or planned streets and undeveloped properties shall be provided at no greater than 400 foot intervals. 4. Connections shall not be more than 400 feet long and shall be as straight as possible. FINDING: The only local roads crossing a collector will be the connection of "Road A" and "Road D" and will align with each other across the north -south road. The Hearings Officer finds this approval criterion will be met. C. Facilities and Improvements. 1. Bikeways may be provided by either a separate paved path or an on -street bike lane, consistent with the requirements of DCC Title 17. 2. Pedestrian access may be provided by sidewalks or a separate paved path, consistent with the requirements of DCC Title 17. 3. Connections shall have a 20 foot right of way, with at least a 10 foot usable surface. 247-19-000500-MP, 247-19-000501-TP Page 63 of 89 FINDING: The proposal includes areas with paved multiuse paths (along the collector roadway and one segment located on Road A between the collector road and nature path west of Lot 3). Generally, the proposal does not include multiuse paths on the private roads. The multiuse path on the collector road is proposed to be 8-feet in width. This issue will be addressed in the findings for DCC 17.48. The Hearings Officer incorporates findings for DCC 17.48 as additional findings for this approval criterion. The Hearings Officer finds, with a condition of approval, this criterion will be met. Section 17.36.150. Blocks. A. General. The length, width and shape of blocks shall accommodate the need for adequate building site size, street width and direct travel routes for pedestrians and cyclists through the subdivision and to nearby neighborhood activity centers, and shall be compatible with the limitations of the topography. B. Size. Within an urban growth boundary, no block shall be longer than 1,200 feet between street centerlines. In blocks over 800 feet in length, there shall be a cross connection consistent with the provisions of DCC 17.36.140. FINDING: Applicant, in its burden of proof, responded to this approval criterion with the following comments: "The subject property is not within an Urban Growth Boundary. The vehicular, bicycle and pedestrian traffic is north -south directional, and the development is bounded by Shevlin Park to the west and by topography to the east, with no through streets east or west. The north -south connection between Sage Steppe and McClain Drive is proposed to be constructed to collector standards and is as direct a route as feasible through the proposed development while also accommodating topography and required minimum lot sizing. While there are no neighborhood activity centers nearby the proposed subdivision at the time of submittal, this north -south connection will provide access to any future neighborhood activity centers that might be developed to the south." The Hearings Officer, based upon a review of the record, concurs with Applicant's above -quoted statement. The Hearings Officer finds subsection (A) will be met and that Subsection (B) does not apply. Section 17.36.160. Easements. A. Utility Easements. Easements shall be provided along property lines when necessary for the placement of overhead or underground utilities, and to provide the subdivision or partition with electric power, communication facilities, street lighting, sewer lines, water lines, gas lines or drainage. Such easements shall be labeled "Public Utility Easement" on the tentative and final plat; they shall be at least 12 feet in width and centered on lot lines where possible, except utility pole guyline easements along the rear of lots or parcels adjacent to unsubdivided land may be reduced to 10 feet in width. 247-19-000500-MP, 247-19-000501-TP Page 64 of 89 B. Drainage. If a tract is traversed by a watercourse such as a drainageway, channel or stream, there shall be provided a stormwater easement or drainage right of way conforming substantially with the lines of the watercourse, or in such further width as will be adequate for the purpose. Streets or parkways parallel to major watercourses or drainageways may be required. FINDING: The Applicant will be required to show all required utility easements on the final subdivision plat and to label them "Public Utility Easements." The Hearings Officer finds that approval criterion (B) is not applicable, as the tract does not appear to be traversed by a watercourse. Utility Easements: Prior to final plat approval of each phase, all required utility easements shall be shown on the final plat. Easements shall be provided along property lines when necessary for the placement of overhead or underground utilities, and to provide the subdivision or partition with electric power, communication facilities, street lighting, sewer lines, water lines, gas lines or drainage. Such easements shall be labeled "Public Utility Easement' on the tentative and final plat; they shall be at least 12 feet in width and centered on lot lines where possible, except utility pole guyline easements along the rear of lots or parcels adjacent to unsubdivided land may be reduced to 10 feet in width. The Hearings Officer finds, with the inclusion of the above -quoted condition of approval this approval criterion will be met. Section 17.36.170. Lots, Size and Shape. The size, width and orientation of lots or parcels shall be appropriate for the location of the land division and for the type of development and use contemplated, and shall be consistent with the lot or parcel size provisions of DCC Title 18 through 21, with the following exceptions: A. In areas not to be served by a public sewer, minimum lot and parcel sizes shall permit compliance with the requirements of the Department of Environmental Quality and the County Sanitarian, and shall be sufficient to permit adequate sewage disposal. Any problems posed by soil structure and water table and related to sewage disposal by septic tank shall be addressed and resolved in the applicant's initial plan. B. Where property is zoned and planned for business or industrial use, other widths and areas may be permitted by the Hearings Body. Depth and width of properties reserved or laid out for commercial and industrial purposes shall be adequate to provide for the off street service and parking facilities required by the type of use and development contemplated. FINDING: The size, width, and orientation of the lots are appropriate to the proposed residential use. Lot size and shape criteria are governed by DCC 19.22, which has been reviewed earlier in this decision. The Applicant has applied and been approved for a number of onsite sewage disposal system evaluations. Onsite system approvals are required prior to the final plat approval. The 247-19-000500-MP, 247-19-000501-TP Page 65 of 89 Hearings Officer finds that subsection (B) above does not apply to this proposal. The Hearings Officer finds these approval criteria will be met. Section 17.36.180. Frontage. A. Each lot or parcel shall abut upon a public road, or when located in a planned development or cluster development, a private road, for at least 50 feet, except for lots or parcels fronting on the bulb of a cut de sac, then the minimum frontage shall be 30 feet, and except for partitions off of U.S. Forest Service or Bureau of Land Management roads. In the La Pine Neighborhood Planning Area Residential Center District, lot widths maybe less than 50 feet in width, as specified in DCC 18.61, Table 2: La Pine Neighborhood Planning Area Zoning Standards. Road frontage standards in destination resorts shall be subject to review in the conceptual master plan. FINDING: The lots in this proposed subdivision are required to meet the frontage standards. Most lots exceed this requirement. Some lots meet the minimum requirement, such as flag lots 33 and 77. The Hearings Officer finds this approval criterion will be met. B. All side lot lines shall be at right angles to street lines or radial to curved streets wherever practical. FINDING: As designed, all side lot lines would, to the maximum extent practicable considering terrain, be at approximately right angles to street lines or radial to curved streets. The Hearings Officer finds this approval criterion will be met. Section 17.36.190. Through Lots. Lots or parcels with double frontage should be avoided except where they are essential to provide separation of residential development from major street or adjacent nonresidential activities to overcome specific disadvantages of topography and orientation. A planting screen easement of at least 10 feet in width and across which there shall be no right of access may be required along the lines of lots or parcels abutting such a traffic artery or other incompatible use. FINDING: There are no proposed lots with double frontage. The Hearings Officer finds this approval criterion does not apply. Section 17.36.200. Corner Lots. Within an urban growth boundary, corner lots or parcels shall be a minimum of five feet more In width than other lots or parcels, and also shall have sufficient extra width to meet the additional side yard requirements of the zoning district in which they are located. FINDING: The proposed development is not within an urban growth boundary. The Hearings Officer finds this criterion does not apply. 247-19-000500-MP, 247-19-000501-TP Page 66 of 89 Section 17.36.210. Solar Access Performance. A. As much solar access as feasible shall be provided each lot or parcel in every new subdivision or partition, considering topography, development pattern and existing vegetation. The lot lines of lots or parcels, as far as feasible, shall be oriented to provide solar access at ground level at the southern building line two hours before and after the solar zenith from September 22nd to March 21st. If it is not feasible to provide solar access to the southern building line, then solar access, if feasible, shall be provided at 10 feet above ground level at the southern building line two hours before and after the solar zenith from September 22nd to March 2lst, and three hours before and after the solar zenith from March 22nd to September 29st. B. This solar access shall be protected by solar height restrictions on burdened properties for the benefit of lots or parcels receiving the solar access. C. If the solar access for any lot or parcel, either at the southern building line or at 10 feet above the southern building line, required by this performance standard is not feasible, supporting information must be filed with the application. FINDING: The proposed lots will be no smaller than 2.5 acres, which should provide adequate area to provide solar access at southern property lines. Additionally, a condition of approval has already been suggested to require compliance with the solar setback requirements of DCC 19.88.210. Section 17.36.220. Underground Facilities. Within an urban growth boundary, all permanent utility services ... FINDING: The proposed subdivision is not within an urban growth boundary. The Hearings Officer finds this approval criterion does not apply. Section 17.36.230. Grading of Building Sites. Grading of building sites shall conform to the following standards, unless physical conditions demonstrate the property of other standards: A. Cut slope ratios shall not exceed one foot vertically to one and one half feet horizontally. B. Fill slope ratios shall not exceed one foot vertically to two feet horizontally. C. The composition of soil for fill and the characteristics of lots and parcels made usable by fill shall be suitable for the purpose intended. D. When filling or grading is contemplated by the subdivider, he shall submit plans showing existing and finished grades for the approval of the Community Development Director. In reviewing these plans, the Community Development Director shall consider the need for drainage and effect of filling on adjacent property. Grading shall be finished in such a manner as not to create steep banks or unsightly areas to adjacent property. 247-19-000500-MP, 247-19-000501-TP Page 67 of 89 FINDING: No specific grading or fill has been proposed by the Applicant. Staff noted, in the Staff Report that "if grading were to be proposed, it is difficult to craft a clear and objective condition of approval from these criteria, so staff defers to the Hearings Officer as to if a condition of approval is required, and suggests the following draft condition if so." Grading: Prior to the issuance of building permits on individual lots, the Applicant shall demonstrate cut slope ratios shall not exceed one foot vertically to one and one half feet horizontally, fill slope ratios shall not exceed one foot vertically to two feet horizontally, and grading plans shall comply with DCC 17.36.230. The Hearings Officer agrees with both the Staffs comments and recommended language for a condition. The Hearings Officer finds that if the above -quoted condition language is included in an approval then this criterion will be met. Section 17.36.250. Li htin . Within an urban growth boundary, the subdivider shall provide underground wiring to the County standards, and a base for any proposed ornamental street lights at locations approved by the affected utility company. FINDING: The proposed development is not within an urban growth boundary. The Hearings Officer finds this approval criterion does not apply. Section 17.36,260. Fire Hazards. Whenever possible, a minimum of two points of access to the subdivision or partition shall be provided to provide assured access for emergency vehicles and ease resident evacuation. FINDING: The north -south extension of McClain Drive and Sage Steppe will provide two points of access to the subdivision. As noted in earlier findings emergency access will need to be provided even if the McClain Drive extension is not fully constructed yet. Applicant agreed to conditional language and the Fire Department suggested conditional language that if included in any approval of this application will satisfy the requirements of this approval criterion. Section 17.36.270. Street Tree Planting. Street tree planting plans, if proposed, for a subdivision or partition, shall be submitted to the Planning Director and receive his approval before the planting is begun. FINDING: No street trees have been proposed by the Applicant. Section 17.36.280. Water and Sewer Lines. 247-19-000500-MP, 247-19-000501-TP Page 68 of 89 Where required by the applicable zoning ordinance, water and sewer lines shall be constructed to County and City standards and specifications. Required water mains and service lines shall be installed prior to the curbing and paving of new streets in all new subdivisions or partitions. FINDING: Applicant, in its burden of proof, responded to this approval criterion with the following comments: "No sewer lines are proposed as subdivision lots will be served by individual on -site subsurface disposal. City water lines are proposed to serve the subdivision and will be installed to City standards and specifications, including installation prior to paving of the streets. The City of Bend has provided a Will Serve letter for water, included in Exhibit A. The Applicant was party to the Westside infrastructure Group (WiG, ExhibitJ) and entered into a Development Agreement (WIG DA, Ordinance NS-2316, effective November 16, 2018) with the City of Bend that assessed the infrastructure impacts and mitigations to City infrastructure as a result of the combined westside development. Ordinance NS-2316 notes (b]ecause the uses and density of the Properties are either prescribed by the BCP and BDC ...the overall off -site infrastructure impact as a result of development of the Properties can be reasonably determined and addressed. The purpose of this Agreement is to provide for the equitable allocation of these costs, and define development triggers and assignment of responsible parties for the construction of the required public improvements to fully mitigate off -site sewer, water and vehicular transportation infrastructure impacts from the development of the Properties subject to this Agreement."As such, the WIG Development Agreement analyzed all City water and street services for this master plan area. The terms of the Development Agreement commit the Applicants and the City of Bend to the terms of the agreement for a period of 15 years. This WIG agreement identifies the only water element to be the extension of the waterline at Sage Steppe Drive in Tree Farm, north to McClain Drive. The WIG Agreement requires this waterline to be constructed by Rio Lobo Investments (subject property owner), if the property is served by City water. The WIG Agreement further notes that no other off -site water infrastructure improvements or upgrades are required." Staff, in the Staff Report, recommended the following condition of approval to ensure compliance with this criterion. Water and Sewer Lines: Prior to curbing and paving new streets, water mains and water and sewer lines shall be constructed and installed to County and City standards and specifications. Evidence of approved completion of the water mains and lines to the City of Bend's standards shall be submitted to the Planning Division for review. The Hearings Officer finds that with the inclusion of Staffs recommended condition of approval this approval criterion will be met. 247-19-000500-MP, 247-19-000501-TP Page 69 of 89 Section 17.36.290. Individual Wells. In any subdivision or partition where individual wells are proposed, the applicant shall provide documentation of the depth and quantity of potable water available from a minimum of two wells within one mile of the proposed land division. Notwithstanding DCC 17.36.300, individual wells for subdivisions are allowed when parcels are larger than 10 acres. FINDING: No individual wells are proposed. The Hearings Officer finds this approval criterion does not apply. Section 17.36.300, Public Water System. In any subdivision or partition where a public water system is required or proposed, plans for the water system shall be submitted and approved by the appropriate state or federal agency. A community water system shall be required where lot or parcel sizes are less than one acre or where potable water sources are at depths greater than 500 feet, excepting land partitions. Except as provided for in sections 17.24.120 and 17.24.130, a required water system shall be constructed and operational, with lines extended to the lot line of each and every lot depicted in the proposed subdivision or partition plat, prior to final approval. FINDING: Water is proposed to be supplied by the City of Bend. Staff, in the Staff Report, recommended the following condition of approval to ensure compliance. Public Water System: Prior to final plat approval of each phase, plans for the water system shall be submitted and approved by the appropriate city, state, or federal agency. The water system shall be constructed and operational, with lines extended to the lot line of each and every lot depicted in the proposed subdivision. Applicant proposed the above -quoted condition of approval be modified to read as follows: Public Water System Prior to final plat approval of each phase, plans for the water system shall be submitted and approved by the appropriate city, state, or federal agency. The water system shall be constructed and operational, with lines extended to the lot line of each and every lot depicted in the proposed phase, or the applicant has submitted an improvement agreement and performance assurance for such construction. The Hearings Officer finds that with Applicant's proposed condition of approval is appropriate so long as additional language is included to assure for the form of any improvement agreement and performance assurance is in a form acceptable to the County. The Hearings Officer finds this approval criterion will be met with the following condition of approval: Public Water System; Prior to final plat approval of each phase, plans for the water system shall be submitted and approved by the appropriate city, state, or federal agency. The water system shall be constructed and operational, with lines extended to the lot line of each and every 247-19-000500-MP, 247-19-000501-TP Page 70 of 89 lot depicted in the proposed phase, or the Applicant has submitted an improvement agreement and performance assurance. Any improvement agreement shall be reviewed and approved by Deschutes County Community Development and County Counsel to assure the agreement(s) is/are in a form that meets the requirements of DCC 17.24.120. Documentation related to performance assurances shall be in a form satisfactory to the Deschutes County Community Development and County Counsel. Chapter 17.44, Park Development. Section 17.44.010. Dedication of Land. A. For subdivisions or partitions inside an urban growth boundary, the developer shall set aside and dedicate to the public for park and recreation purposes not less than eight percent of the gross area of such development, if the land is suitable and adaptable for such purposes and is generally located in an area planned for parks. B. For subdivisions or partitions outside of an urban growth boundary, the developer shall set aside a minimum area of the development equal to $350 per dwelling unit within the development, if the land is suitable and adaptable for such purposes and is generally located in an area planned for parks. C. For either DCC 17.44.010 (A) or (B), the developer shall either dedicate the land set aside to the public or develop and provide maintenance for the land set aside as a private park open to the public. D. The Planning Director or Hearings Body shall determine whether or not such land is suitable for park purposes. E. If the developer dedicates the land set aside in accordance with DCC 17.44.010 (A) or (B), any approval by the Planning Director or Hearings Body shall be subject to the condition that the County or appropriate park district accept the deed dedlcatingsuch land. F. DCC 17.44.010 shall not apply to the subdivision or partition of lands located within the boundaries of a parks district with a permanent tax rate. FINDING: The Subject Property is located within the boundaries of the Bend Park and Recreation District, which has a permanent tax rate. The Hearings Officer finds these approval criteria do not apply. Chapter 17.48, Design and Construction Specifications. Section 17.48.060. Improvement Plans. A. A complete set of certified mylar improvement plans shall be approved by the Road Department Director prior to the start of construction or the signing of the final plat. B. The Improvement plans shall become the property of the County and will remain at the Road Department. 247-19-000500-MP, 247-19-000501-TP Page 71 of 89 C. The improvement plans which shall be 24 by 36 inches shall include, but not be limited to: [...] FINDING: The Applicant will be required to meet subsection (A) above and the requirements of this section. Staff, in the Staff report, recommended the following condition of approval. Roadlriprovement Plans Prior to final plat approval of each phase, the Applicant shall submit a complete set of certified mylar improvement plans to the Road Department Director for approval. Public and private road design and construction shall be in accordance with all applicable sections of DCC 17.48. Applicant shall submit public and private road improvement plans to Road Department for approval prior to commencement of construction pursuant to DCC 17.40.020 and 17.48.060. Improvements shall be constructed under the inspection of a registered professional engineer consistent with ORS 92.097 and DCC 17.40.040. The Road Department recommended slightly different conditional language to address this approval criterion. The Road Department recommended the following: Road Improvement Plans Applicant shall submit road improvement plans to Road Department for approval prior to commencement of construction pursuant to DCC 17.40.020 and 17.48.060. The roads shall be designed to the minimum standard for a private road pursuant to 17.48.160, 17.48.180, and 17.48A or pursuant to the master plan upon approval. Road improvement plans shall be prepared in accordance with all applicable sections of DCC 17.48. The Hearings Officer finds that with the inclusion of Staffs recommended condition of approval this approval criterion will be met. Section 17.48.100. Minimum Right of Way Width, The minimum right of way width is 60 feet unless specified otherwise in Table A (or in any right of way specifications set forth for a particular zone in a zoning ordinance). (See Table A set out at the end of DCC Title 17.) FINDING: No right-of-way width is required for private streets, therefore, the Hearings Officer finds that this approval criterion does not apply to private roads. The right-of-way for the north -south extension of McClain Drive is proposed to be 60 feet, meeting this standard. Section 17.48.110. Turn Lanes. When a turn lane is required, it shall be a minimum of 14 feet in width, except where road specifications in a zoning ordinance provide for travel lanes of lesser width. Additional right of way may be required. FINDING: No turn lanes have been required. 247-19-000500-MP, 247-19-000501-TP Page 72 of 89 Section 17.48.120, Partial Width Roads. Partial width roads or half streets shall not be allowed. FINDING: No partial width road or half streets are proposed. Section 17.48.130. Road Names. All roads shall be named in conformance with the provisions of the Deschutes County uniform road naming system set forth in DCC Title 16. FINDING: Although similar to a previous condition of approval, Staff, in the Staff Report, recommended the following addition to a previous condition of approval to ensure compliance with this somewhat different criterion. Changes are in italic font. Street Names: Prior to final plat approval of each phase, no street name shall be used which will duplicate or be confused with the name of an existing street in a nearby city or in the County. Street names and numbers shall conform to the established pattern in the County and shall require approval from the County Property Address Coordinator. The north -south collector road shall be named McClain Drive north of the intersection of "Road A" and "Road D", and shall be named Sage Steppe south of the same intersection. All roads shall be named in conformance with the provision of the Deschutes County uniform road naming system set forth in DCC Title 16. The Hearings Officer finds that with the inclusion of Staffs recommended condition of approval this approval criterion will be met. Section 17.48.140. Bikeways. A. General Design Criteria. 1. Bikeways shall be designed in accordance with the current standards and guidelines of the Oregon (000T) Bicycle and Pedestrian Plan, the American Association of State Highway Transportation Officials (AASHTO) Guide for Development of New Bicycle Facilities, and the Deschutes County Bicycle Master Plan. See DCC 17.48 Table B. 2. All collectors and arterials shown on the County Transportation Plan map shall be constructed to include bikeways as defined by the Deschutes County Bicycle Master Plan. 3. If interim road standards are used, interim bikeways and/or walkways shall be provided. These interim facilities shall be adequate to serve bicyclists and pedestrians until the time of road upgrade. B. Multi -use Paths. 1. Multi -use paths shall be used where aesthetic, recreation and safety concerns are primary and a direct route with few intersections can be established. If private roads are constructed to a width of less than 28 feet, multi -use paths shall be provided. 247-19-000500-MP, 247-19-000501-TP Page 73 of 89 2. Multi -use paths are two way facilities with a standard width of 10 feet, but with a 92 foot width if they are subjected to high use by multiple users. These paths shall meet County multi -use path standards and shall connect with bike facilities on public roads. FINDING: The proposed collector road is not on the County's Transportation Plan, but the Applicant did propose a paved multiuse path along the length of this new collector road. No interim features are proposed. Applicant, in its burden of proof, responded to this approval criterion with the following comments: "The public north -south roadway will serve the through traffic (vehicular, bicycle, pedestrian) between the adjacent north and south neighborhoods. Aesthetic, recreation and safety concerns are paramount for this proposed subdivision. The new connection between Sage Steppe and McClain includes only one four-way intersection and it is with a small, low volume private street; the others are T-intersections with private cul-de-sac and/or a private street. An 8-foot multiuse path is proposed along the entire north -south roadway connection between Sage Steppe and McClain Drive. This eight foot width was designed to match the existing multiuse path along Sage Steppe, to meet the minimum bikeway design requirements of DCC Chapter 17.48, Table B. The eight foot wide multiuse path in The Tree Farm was approved through the County decision 247- 14-000243-TP, due to forecasted low traffic volumes and the Applicant requests approval of the eight foot width on this same basis, and to permit the extension of the path with the same design as existing. Bicycle and pedestrian traffic is forecast to be minimal on the private streets, originating and destined only for the individual lots on each private street, as the private streets do not connect to any other access points or streets. This low volume does not warrant separate bike lanes and/or multiuse paths on these private streets. As a result, the Applicant coordinated with the County Roadway Department to propose 24-foot wide private streets, four feet greater than the minimum private street width. The additional four feet will provide extra width for local bicyclists and pedestrians, to accommodate all modes within the pavement." On July 16, 2019, the Applicant provided the following supplemental comments: "The submitted typical street sections include an 8-foot multiuse path along the private street and refers to the plan for the location of this path. The plan includes the path along the northern section of the private street, between McClain Drive and the trail that accesses the northern open space and Bull Springs Trail. The proposal does not include a multiuse path continuing south along the private streets, for the following reason, as referenced in the narrative: Any bicycle or pedestrian traffic on the private street will be local traffic, not warranting or requiring a dedicated bikeway or sidewalk Further, DCC 17.48 Table B allows for shared roadways when the speeds are below 25 mph and ADT is less than 3000. The speed limit on the private streets will be less than 25 mph and the submitted Site Traffic Report 247-19-000500-MP, 247-19-000501-TP Page 74 of 89 estimates the entire development to have less than 800 ADT, suggesting that the private streets would each have even less traffic, as they are not through streets. Through coordination with the County Roadway Department, the Applicant has included four feet of extra pavement width on the shared roadway private streets to minimize potential conflicts between bicyclists, pedestrians and vehicles." As discussed in the findings for DCC 17.36.060 above, the Applicant proposed for the private roads to be approved with a 24-foot paved surface where there are no multiuse paths or bike lanes proposed, which is 4-foot narrower than the standard, The Applicant also requested approval for 8- foot multiuse paths where they are provided, which are 2-feet to 4-feet narrower than the standard, The Hearings Officer incorporates the findings for DCC 17.36.060 and ORS 92.090(2) as additional findings for this approval criterion. The Hearings Officer finds the Applicant's proposed street widths are appropriate and meet minimum standards. The Hearings Officer next addresses the path locations and widths within the proposed subdivision. The Hearings Officer acknowledges that pathway findings also are relevant to other approval criteria and will be incorporated into those findings where appropriate. The Hearings Officer previously noted concurrence with the Applicants comments related to the width of the multiuse path along the collector road (extension of McClain Drive/Sage Steppe). The Hearings Officer is aware of DCC 17,48 Table A Note 23 which, in summary, states that the minimum path width is 8-feet and that wider paths (10-feet standard width) are preferred. Note 23 factors include the length of the path connection, the anticipated usage and sight distance considerations. The Hearings Officer finds that the proposed 8-foot paved multiuse path along the collector road "matches" the multiuse path at the adjacent Miller Tree Farm development. Further, the Hearings Officer finds that the anticipated use of the collector road multiuse path will be low. The Hearings Officer finds the proposed collector road multiuse path will be compatible with surrounding development. The Hearings Officer finds that proposed multiuse path (paved and 8-feet in width), along the extension of McClain Drive and Sage Steppe, is appropriate considering the Note 23 factors set forth in DCC 17.48. The Hearings Officer finds the Applicants proposal for 24-feet of pavement on the private roadways with no multiuse path is more problematic. DCC 17.48.140(B)(1) clearly states that if "private roads are constructed to a width of less than 28 feet, multi -use paths shall be provided." Applicant proposed private roads with a "width of 24-feet of pavement." Applicant justified that there would be no multiuse path along the private roads because the private roads "only serve the parcels abutting" them. Further, Applicant stated that the private roads will experience "low local traffic" volume and "no through traffic." Applicant referred the Hearings Officer to the Senior Transportation planner's comment that he (the transportation planner) "understands the rationale for the reduced width on a private road that will see little to no through 247-19-000500-MP, 247-19-000501-TP Page 75 of 89 traffic." The Hearings Officer concurs with the underlying logic of Applicant's justification for no multiuse paths along the private roads, However, the Hearings Officer finds Applicant failed to provide legal authority or persuasive argument to support a Hearings Officer finding that no multiuse paths are acceptable under this criterion. The Hearings Officer takes note that Wisco, in her Hearing testimony and Power Point presentation (Slides 19 and 20), referred to DCC 17.48 Table A notes 8 and 10. The Hearings Officer finds that neither note 8 nor 10 clearly justify Applicant's proposed 24-foot private roads and no multiuse path. The Hearings Officer agrees with Wisco that 20-foot private roads may be allowed for "cul-de-sac's and roads with low anticipated traffic volumes" but only so if "separate multiple paths are provided (DCC 17.48 Table A, Note (8)). The Hearings Officer also takes note that Wisco referenced, in her Hearing testimony and Power Point presentation (Slide 21) DCC 17.48.040. The Hearings Officer does not understand Wisco's testimony related to DCC 17.48.040 to provide legal justification for 24-foot private roads and no multiuse paths. The Hearings Officer finds DCC 17.48.040 allows up to a "10% variation" without applying variance criteria if certain factors are present. The Hearings Officer does not believe that the width requirement for a multiuse path (likely at a minimum width of 8-feet) can be reduced to zero. No interested person in this case pointed the Hearings Officer to a section of the DCC, or any other relevant law, that requires that the width of a multiuse path be dedicated, in fee, to the County. If that is in fact a true representation of the law then the Hearings Officer finds that any multiuse path required by DCC 17.48 Table A may be created by an easement. The Hearings Officer also finds that the multiuse paths adjacent to private roads need not be paved; rather, they may remain in a "natural state." The Hearings Officer finds that a condition of approval is necessary to assure that a minimum width of 8-feet for multiuse path along private roads be shown on the final plat for all phases of the proposal. The Hearings Officer notes that Applicant, Staff and BPRD agree that a hard -surface multiuse path is required on Road A between the McClain Drive /Sage Steppe collector road and "the natural surface trial to the west" (See Applicant's burden of proof page 46 and July 16, 2019 record submission). The Hearings Officer finds the record is less clear regarding a "trail" connection on Road D between the McClain Drive /Sage Steppe collector road and a natural surface trail running north/northeast between lots 72 and 73. BPRD (Keever July 24, 2019 letter, page 2) stated the Applicant and BPRD participated in the Westside Transect Zone project. Keever stated, in the July 24, 2019 letter (page 1), that "the Westgate Master Plan and Tentative Plan represent the details the District and the applicant have agree upon..." Keever, on page 2, stated that the BPRD/Applicant agreement included the following: "The applicant will build and maintain an 8-foot wide hard surface trail, set-off from the street, along Sage Steppe Drive connecting to McClain Drive, with spurs on Road A and Road D...The trail on Road D is to connect to the trail on Sage Steppe Drive and the natural surface trail to the east." 247-19-000500-MP, 247-19-000501-TP Page 76 of 89 The Hearings Officer, based upon a review of documents in the record, finds that Applicant did not clearly convey whether or not its proposal included a "hard -surface trail" connection between the McClain Drive /Sage Steppe collector road and the trail intersection on Road D. The Hearings Officer finds it necessary and appropriate to require an 8-foot width hard -surface on the north side of Road D between the McClain Drive /Sage Steppe collector road and the natural trail located to the west of Lot 73. The Hearings Officer finds the following language for a condition of approval adequately addresses the private road multiuse path issue: Multiuse Paths on Private Roads. As an ongoing condition of approval, Applicant must show, on the final plat for each phase, an 8-foot multiuse path along all private roads excepting for (1) an 8-foot hard surface trail is required on a segment of Road A between the collector road (extension of McClain Drive and Sage Steppe) and the nature trail running north between lots 3 and 4 and (2), an 8-foot hard surface trail is required on a segment of Road D between the collector road (extension of McClain Drive and Sage Steppe) and the nature trail running north/northeast between lots 72 and 73. The Hearings Officer takes note of a letter submit on July 23, 2019 by Rick Root. Root, in the July 23, 2019 letter, stated the following: "Provide a new (or revised) public trail connection that makes a more direct connection between the eastern and western boundaries of the subdivision from the city of Bend side of the development to/from Shevlin Park. This trail would hopefully align, as much as practical, with the existing trail within the park that traverses up the grade from Tumalo Creek (i.e., near the covered bridge). This would provide a greater benefit to the public use of the park and trail network. The entire trail corridor should be contained within a public easement (or more ideally, separate tracts - where not within roadways - possibly even the tracts being dedicated to the Bend Park & Recreation District? I have attached a sketch that illustrates one possible alignment for this connection (Attachment - A)." The Hearings Officer reviewed "Attachment - A) to the Root July 23, 2019 letter. The Hearings Officer notes that the Attachment - A proposed connection is located immediately south/southwest of proposed Lot 9 and runs through the planned "No Build Zone" and the "Conservation Zone." The "No Build Zone" and "Conservation Zones" have at least two very important purposes; wildfire mitigation and wildlife protection. As stated by Paul Dewey (Central Oregon Landwatch) and Myles Conway (attorney for Applicant) new connections to Shevlin Park, through the "No Build Zone" and "Conservation Zone" are discouraged. Hearing testimony of Quinn Keever, on behalf of BPRD, appeared to the Hearings Officer to concur that no new connections to Shevlin Park, through the Subject Property, should be allowed. Keever noted the connection to Shevlin Park, through the Subject Property, would be via a natural trail running north from Road A. The Hearings Officer finds, based upon the evidence in the record, that the proposed connection from the Subject Property running north from Road A should be the only connection from the Subject Property to Shevlin Park. 247-19-000500-MP, 247-19-000501-TP Page 77 of 89 The Hearings Officer finds, with the condition referenced above (private roadway multiuse path easements, hard -surface paths connecting the McClain Drive /Sage Steppe collector road to natural paths on Roads A and D) these criteria can be met. C. Bike Lanes. Six foot bike lanes shall be used on new construction of curbed arterials and collectors. D. Shoulder Bikeways. 1. Shoulder bikeways shall be used on new construction of uncurbed arterials and collectors. 2. Shoulder bikeways shall be at least four feet wide. Where the travel lane on an existing arterial or collector is not greater than eleven feet, the bikeway shall be a minimum of four feet wide. E. Mountain Bike Trails. 1. Mountain bike (dirt or other unpaved surface) trails may be used as recreational or interim transportation facilities. 2. Trails used for transportation shall have a two foot minimum tread width and a six foot minimum clearing width centered over the trail, and a minimum overhead clearance of seven feet. Trails used solely for recreational use may be narrower with less clearing of vegetation. FINDING: The Applicant proposed a separated multiuse path rather than bike lanes. The natural trail connections identified in the application materials are not indicated as specifically mountain bike trails but are indicated as connections to other trails outside of the Subject Property. If these trails will be open for mountain bike use, Staff, in the Staff Report, recommended the following condition of approval. Mountain Bike Trails: As an ongoing condition of approval, mountain bicycle trails used for transportation shall have a two -foot minimum tread width and a six-foot minimum clearing width centered over the trail, and a minimum overhead clearance of seven feet. Trails used solely for recreational use may be narrower with less clearing of vegetation. As a cautionary measure the Hearings Officer finds it reasonable and appropriate to include the Staff recommended condition. Section 17.48.15 . Structures. All structures that carry a road or cross over a road shall be designed to have a 50-year life span. All designs must be approved by the Road Department Director and other affected public or private agencies. FINDING: No structures to carry a road or cross over a road are proposed or required. 247-19-000500-MP, 247-19-000501-TP Page 78 of 89 Section 17.48.160. Road Dexe(opment Requirements - Standards. A. Subdivision Standards. All roads in new subdivisions shall either be constructed to a standard acceptable for inclusion in the county maintained system or the subdivision shall be part of a special road district or a homeowners association in a planned unit development. FINDING: The proposed roads include one public right-of-way and several private roads that are required to be constructed to County standards. The Deschutes County Road Department, on July 23, 2019, submitted comments into the record (See Public Agency Comments). The Road Department requested that the Hearings Officer, if the application was approved, to include a number of conditions. The Hearings Officer concurs with the Road Department's recommended conditions. The Hearings Officer finds with the inclusion of the Road Department's recommended conditions this approval criterion will be met. B. Improvements of Public Rights of Way. 1. The developer of a subdivision or partition will be required to improve all public ways that are adjacent or within the land development. 2. All improvements within public rights of way shall conform to the improvement standards designated in DCC Title 17 for the applicable road classification, except where a zoning ordinance sets forth different standards for a particular zone. C. Primary Access Roads. 1. The primary access road for any new subdivision shall be improved to the applicable standard set forth in Table A. 2. The applicable standard shall be determined with reference to the road's classification under the relevant transportation plan. 3. For the purposes of DCC 17.48.160 a primary access road is a road leading to the subdivision from an existing paved county, city or state maintained road that provides the primary access to the subdivision from such a road. FINDING: One public right-of-way (extension of McClain Drive/Sage Steppe) is part of the proposed subdivision. The primary access roads are McClain Drive and Sage Steppe. The proposed public right-of-way and primary access roads will need to be improved to meet the standards in Table A of this section, as will all other roads within the subdivision. The Hearings Officer finds this approval criterion can be met through the suggested condition of approval under DCC 17.48.060. D. Secondary Access Roads. When deemed necessary by the County Road Department or Community Development Department, a secondary access road shall be constructed to the subdivision. Construction shall be to the same standard used for roads within the subdivision. FINDING: The Tentative Plan provides two access points. One is located in the north as a connection to McClain Drive and the other is located in the south as a connection to Sage Steppe. The Hearings Officer finds this approval criterion will be met. 247-19-000500-MP, 247-19-000501-TP Page 79 of 89 E. Stubbed Roads. Any proposed road that terminates at a development boundary shall be constructed with a paved cul-de-sac bulb. FINDING: The Hearings Officer finds that none of the proposed roads will terminate at the development boundary, therefore, no cul-de-sac bulbs will be necessary. F. Cul-de-sacs. 1. Cul-de-sacs shall have a length of less than 600 feet, unless a longer length is approved by the applicable fire protection district, and more than 100 feet from the center of the bulb to the intersection with the main road. 2. The maximum grade on the bulb shall be four percent. FINDING: The Tentative Plan materials show four cul-de-sacs and each one is longer than 600 feet. The Applicant submitted an email from the Bend Fire Department (Exhibit K) which indicates the Fire Department is agreeable to the lengths. The Hearings Officer finds this approval criterion will be met. G. Frontage Roads. Right of way widths shall be 40 feet when immediately adjacent to a main highway/arterial; 60 feet when the frontage road is separated from the highway or arterial by private land or as set forth for a particular zone in the zoning ordinance. FINDING: No frontage roads are proposed as part of this application. Section 17.48.180. Private Roads. The following minimum road standards shall apply for private roads: A. The minimum paved roadway width shall be 20 feet in planned unit developments and cluster developments with two foot wide gravel shoulders; B. Minimum radius of curvature, 50 feet; C. Maximum grade, 12 percent; D. At least one road name sign will be provided at each intersection for each road; E. A method for continuing road maintenance acceptable to the County; F. Private road systems shall include provisions for bicycle and pedestrian traffic. 1. In cluster and planned developments limited to ten dwelling units, the bicycle and pedestrian traffic can be accommodated within the 20-foot wide road. 2. In other developments, shoulder bikeways shall be a minimum of four feet wide, paved and striped, with no on street parking allowed within the bikeway, and when private roads are developed to a width of less than 28 feet, bike paths constructed to County standards shall be required. FINDING: Applicant, in its burden of proof, responded to this approval criterion with the following comments: 247-19-000500-MP, 247-19-000501-TP Page 80 of 89 The north -south roadway connecting Sage Steppe and McClain is proposed to be a public roadway. All other roads in the Westgate subdivision are proposed to be private streets. The proposed private street cross-section is included on the submitted plan and includes 24 feet of pavement, 3-foot gravel shoulders. An 8-foot multi -use path is proposed along the northern connection between McClain Drive and the natural trail that connects to Bull Springs Trail (circled in orange below): PLAN AREA 4 SHEVLIN WEST I I iax 4.1 iux / f n v //fin v.< Sf1EVL R10' BRAN( The public north -south roadway will serve the through traffic (vehicular, bicycle, pedestrian) from the adjacent north and south neighborhoods. Bicycle and pedestrian traffic is forecast to be minimal on the private streets, originating and destined only for the individual lots on each private street, as the private streets do not connect to any other access points or streets. This low volume does not warrant separate bike lanes and/or multi -use paths on these private streets. As a result, the Applicant coordinated with the County Roadway Department to propose 24 foot wide private streets, four feet greater than the minimum private street width. The additional four feet will provide extra width for local bicyclists and pedestrians, to accommodate all modes within the pavement. All radii of curvature are less than 50 and maximum grades are less than 12 percent. Road name signs will be installed in accordance with this criterion during construction." (Applicant's burden of proof included the diagram/map) The Hearings Officer incorporates the findings for DCC 17.48.140, DCC 17.36.060 and ORS 92.090(2) as additional findings for these approval criteria. The Hearings Officer finds that Applicant's requests for road widths and multiuse paths are acceptable excepting that trail easements are 247-19-000500-MP, 247-19-000501-TP Page 81 of 89 required on all private roads and a hard -surface off -set (from the road) trail is required on Roads A and D between the collector road extension and nature trails. (See findings for DCC 17.48.140). The Hearings Officer finds that with conditions of approval (See findings for DCC 17.48.140) these approval criteria will be met. Section 17.48.190. Drainage, A. Minimum Requirements. 1. Drainage facilities shall be designed and constructed to receive and/or transport at least a design storm as defined in the current Central Oregon Stormwater Manual created by Central Oregon Intergovernmental Council and all surface drainage water coming to and/or passing through the development or roadway. 2. The system shall be designed for maximum allowable development. B. Curbed Sections. 1. Storm drains within curbed streets shall be designed per the requirements of the current Central Oregon Stormwater Manual created by the Central Oregon Intergovernmental Council. 2. Catchbasins shall be constructed in accordance with drawing Nos. 3-1, 3-2 and 3-3. (See drawings 3-7, 3-2 and 3-3 set out at the end of DCC Title 17 and by this reference incorporated herein.) C. Noncurbed Sections. 1. Road culverts shall be concrete or metal with a minimum design life of 50 years. 2. All cross culverts shall be 18 inches in diameter or larger. 3. Culverts shall be placed in natural drainage areas and shall provide positive drainage. D. Drainage Swales. The Design Engineer is responsible to design a drainage swale adequate to control a design storm as defined in the Central Oregon Stormwater Manual created by Central Oregon Intergovernmental Council. E. Drainage Plans. A complete set of drainage plans including hydraulic and hydrologic calculations shall be incorporated in all road improvement plans. F. Drill Holes. Drill holes are prohibited. G. Injection wells (drywelis) are prohibited in the public right-of-way. FINDING: The Applicant did not propose curbed streets. No drill holes or injection wells are proposed. The typical road cross sections provided as part of the application materials indicate the north -south extension of McClain Drive will be designed with a 6-foot swale on each side of the road shoulder. No engineered plans for drainage were submitted. Staff, in the Staff Report, recommended the following condition: Drai age: Prior to final plat approval of each phase, the Applicant shall provide certification by a licensed professional engineer that drainage facilities have been designed and constructed to receive and/or transport at least a design storm as defined in the current Central Oregon Stormwater Manual created by Central Oregon Intergovernmental Council and all surface 247-19-000500-MP, 247-19-000501-TP Page 82 of 89 drainage water coming to and/or passing through the development or roadways. The engineer's certification shall confirm that all drainage features have been designed and constructed to comply with DCC 17.48.190. The Hearings Officer concurs with Staff's recommendation of the above -quoted condition. The Hearings Officer finds that with the Staff recommended condition these approval criteria will be met. Section 17.48.2'10. Access. A. Permit Required. Access onto public right of way or change in type of access shall require a permit. Permits are applied for at offices of the Community Development Department. B. Access Restrictions and Limitations. The creation of access onto arterials and collectors is prohibited unless there is no other possible means of accessing the parcel. In any event, residential access onto arterials and collectors shall not be permitted within 100 feet of an intersection or the maximum distance obtainable on the parcel, whichever is less. FINDING: At least 15 lots adjacent to the proposed north -south collector road have no other access option besides this new road. Due to the size of the parcels, it appears those lots will be able to meet the separation distances in subsection (B) above. Staff, in the Staff Report, suggested the following condition of approval to ensure compliance with subsection (A) above. Driveway Approach Permits: Prior to the issuance of building permits on individual Lots, the Applicant shall obtain driveway access permits for any new access points to a public right-of-way pursuant to DCC 17.48.210(A). The Hearings Officer concurs with Staffs recommendation of the above -quoted condition. The Hearings Officer finds that with the Staff recommended condition these approval criteria will be met. IV. CONCLUSION: Overall the Hearings Officer found Applicant in this case collaborated with a multitude of interested persons and agencies. The Hearings Officer believes Applicant's proposal in this case is generally sensitive to the interests of those interested persons and agencies. The Hearings Officer was required to address two rather sticky issues: (1) the meaning of slope setback and, (2) the necessity of multiuse paths along the proposed private roadways. The Hearings Officer, based upon the evidence in the record and relevant Deschutes County Code language, found that "slope setback" in the context of DCC 19.22.050 means no more or less than the literal language used in the Code: "there shall be a minimum setback of 30 feet from the edge of anyslope which exceeds 20%." [emphasis added by the Hearings Officer} The Hearings Officer agreed with Applicant's suggestion that a condition of approval be included stating that "all buildings observe 247-19-000500-M P, 247-19-000501-TP Page 83 of 89 the 30-foot setback imposed by DCC 19.22.050 H" would adequately address the "slope setback" issue. The Hearings Officer included such a condition in the approval of the application. The second issue involved Applicant's request to construct 24-foot private roads with no multiuse paths. The Hearings Officer found that DCC 17.48.140(B)(1) and DCC 17.48 Table A (Notes 8 and 10) required multiuse paths "if private roads are constructed to a width of less than 28-feet." The Hearings Officer found that since the private roads are proposed to be 24-feet multiuse paths are required. Additional issues were raised by Staff and Applicant that the Hearings Officer found less controversial. Included in the "additional issues" was a request by Applicant to "bond" for required improvements associated with the Tentative Plan. The Hearings Officer found that Applicant's suggested "bonding' option was authorized by DCC 17.24.120. The Hearings Officer included a condition of approval related to the Applicant's option to "bond" improvements. Applicant also requested that a modification of Staffs proposed condition of approval #16 as it related to the McClain Drive improvement scheduling (See Wisco Power Point presentation, page 22 and Staff Memo, page 3). Similarly, Applicant requested modification to Staff proposed condition #21. The Hearings Officer found that the request to modify conditions #16 and #21 were generally reasonable and appropriate. One record submission (Root letter dated July 23, 2019) requested an additional trail connection from the Subject Property to Shevlin Park. The Hearings Officer noted that the proposed trail connection would run through the proposed "No Build Zone" and also through the "Conservation Zone." The Hearings Officer found that the advantages of an additional trail connection were outweighed by the wildfire prevention and wildfire preservation goals for which the "No Build Zone" and "Conservation Zone" were designed to protect. The Hearings Officer found that with conditions of approval the application met all relevant approval criteria. Other permits may be required. The Applicant is responsible for obtaining any necessary permits from the Deschutes County Building Division, the Deschutes County Environmental Soils Division and the Deschutes County Road Department, as well as any required state and federal permits. V. DECISION: APPROVAL, subject to the following suggested conditions of approval 247-19-000500-MP, 247-19-000501-TP Page 84 of 89 SUBDIVISION BOND Bond # 6135004296 KNOW ALL MEN BY THESE PRESENTS: That we, the undersigned Empire Westgate, LLC, 63026 NE Lower Meadow Dr., Suite 200, Bend, OR 97701 as Principal, and United States Fire Insurance Company 305 Madison Avenue, Morristown, NJ 07962 a corporation of the State of Delaware . and authorized to do business in the State of OR ., as Surety, are hereby held and firmly bound unto the Deschutes County, Community Development Department, 117 NW Lafayette Avenue, Bend, OR 87708-6005 as Obligee, in the penal sum of One Million One Hundred Ninety Eight Thousand Five Hundred Sixty Nine and 41/100 ($1,198,569.41) Dollars for the payment of which, well and truly to be made we hereby jointly and severally bind ourselves, our heirs, executors, administrators, successors, and assigns. WHEREAS, it is proposed to make certain improvements: Empire Westgate; LLC, Westgate Phase 5 through 7, Construction Cost Estimate for Improvement Agreement Deschutes County File No. 247-19-000500-MP WHEREAS, the Deschutes County, Community Development Department has approved said plan upon the execution and delivery of this bond. NOW, THEREFORE, the condition of this obligation is such that if the above bounden Principal shall construct the improvements shown above, and complete said work to satisfaction of the Deschutes County, Community Development Department and in accordance with the present standard specifications of the Deschutes County, Community Development Department Therefore, then this obligation shall be void, otherwise the same remain in full force and effect: it being expressly understood and agreed that the liability of the Surety for any and all claims hereunder shall in no event exceed the penal amount of this obligation as herein stated. Signed, sealed and dated 18th day of 1jelen Nadirsha, Witness February , 2021 Em ire West a Principal ,% f 4-44.r By: United St, es F •e Insurance Com an Surety By: ig r mai)Attorney-in-Fac STATE OF ILLINOIS COUNTY OF COOK ( ( SS I, Karen N. Genoff A Notary of Public of Cook County, State of Illinois do Hereby Certify that Craig Sherman Attorney in Fact of United States Fire Insurance Company Who is Personally Known to me to be the Same Person Whose Name is Subscribed to the Foregoing Instrument, Appeared Before Me This Day in person and Acknowledged That he Signed, Sealed, and Delivered Said Instrument, For and on Behalf of United States Fire Insurance Company Incorporated in the State of Delaware for the Uses and Purposes Therein Set Forth. Given Under My Hand and Notarial Seal at My Office in Chicago, Illinois in Said County This 18th Day of February , 2021 My Commission Expires (W/W- NOTARY Karen N. Genoff 1 OFFICIAL SEAL KAREN N GENOFF NOTARY PUBLIC - STATEOF ILLINOIS My Commission Expires 05-01-2022 POWER OF ATTORNEY UNITED STATES FERE INSURANCE COMPANY PRINCIPAL OFFICE - MORRISTOWN, NEW JERSEY 07740 KNOW ALL MEN BY HESE PRESENTS: That United States Fire Insurance Company, a corporation duly organi7Pd and existing under the laws of the state of Delaware, has made, constituted and appointed, and does hereby make, constitute and appoint: Craig Sherman, Ted Sherman, Helen Narlirsha, Karen Genoff each, its true and lawful Attomey(s)-In-Fact, with full power and authority hereby conferred in its name, place and stead, to execute, acknowledge and deliver: Any and all bonds and undertakings of surety and other documents that the ordinary course of surety business may require, and to bind United States Fire Insurance Company thereby as fully and to the same extent as if such bonds or undertakings had been duly executed and acknowledged by the regularly elected officers of United States Fire Insurance Company at its principal office, in amounts or penalties not exceeding: Eighty Five Million Dollars ($85,000,000) This Power of Attorney limits the act of those named therein to the bonds and undertakings specifically named therein, and they have no authority to bind United States Fire Insurance Company except in the manner and to the extent therein stated. This Power of Attorney revokes all previous Powers of Attorney issued on behalf of the Attorneys -In -Fact named above and expires on January 31, 2021. This Power of Attorney is granted pursuant to Article IV of the By -Laws of United States Fire Insurance Company as now in full force and effect, and consistent with Article III thereof, which Articles provide, in pertinent part: Article IV, Execution of Instruments - Except as the Board of Directors may authorize by resolution, the Chairman of the Board, President, any Vice -President, any Assistant Vice President, the Secretary, or any Assistant Secretary shall have power on behalf of the Corporation: (a) to execute, affix the corporate seal manually or by facsimile to, acknowledge, verify and deliver any contracts, obligations, instruments and documents whatsoever in connection with its business including, without limiting the foregoing, any bonds, guarantees, undertakings, recognizances, powers of attorney or revocations of any powers of attorney, stipulations, policies of insurance, deeds, leases, mortgages, releases, satisfactions and agency agreements; (b} to appoint, in writing, one or more persons for any or all of the purposes mentioned in the preceding paragraph (a), including affixing the seal of the Corporation. Article III, Officers, Section 3.11, Facsimile Signatures. The signature of any officer authorized by the Corporation to sign any bonds, guarantees, undertakings, recognizances, stipulations, powers of attorney or revocations of any powers of attorney and policies of insurance issued by the Corporation may be printed, facsimile, lithographed or otherwise produced. In addition, if and as authorized by the Board of Directors, dividend warrants or checks, or other numerous instruments similar to one another in form, may be signed by the facsimile signature or signatures, lithographed or otherwise produced, of such officer or officers of the Corporation as from time to time may be authorized to sign such instruments on behalf of the Corporation. The Corporation may continue to use for the purposes herein stated the facsimile signature of any person or persons who shall have been such officer or officers of the Corporation, notwithstanding the fact that he may have ceased to be such at the time when such instruments shall be issued. IN WITNESS WHEREOF, United States Fire Insurance Company has caused these presents to be signed and attested by its appropriate officer and its corporate seal hereunto affixed this 106 day of March, 2016. UNITED STATES FIRE INSURANCE COMPANY Anthony R. Slimowicz, Executive Vice President State of New Jersey} County of Morris } On this 10th day of March 2016, before me, a Notary public of the State of New Jersey, came the above named officer of United States Fire Insurance Company, to me personally known to be the individual and officer described herein, and acknowledged that he executed the foregoing instrument and affixed the seal of United States Fire Insurance Company thereto by the authority of his office. (Notary Public) Sonia Scala SONIA SCALA NOTARY PUBLIC OF NEW JERSEY MY COMMISSION EXPIRES 3/25/2024 No.2163686 1, the undersigned officer of United States Fire Insurance Company, a Delaware corporation, do hereby certify that the original Power of Attorney of which the foregoing is a full, true and correct copy is still in force and effect and has not been revoked. IN WITNESS WHEREOF, I have hereunto set my hind and affixed the corporate seal of United States Fire Insurance Company on the /g7 day T of �� 20 3' UNITED STATES FIRE INSURANCE COMPANY Daniel Sussman, Senior Vice President Western Title&Escrow Western Title - Oregon 220 S Pine Street, Suite 102, Sisters, OR 97759 Preliminary Report Westem Title - Oregon 220 S Pine Street, Suite 102, Sisters, OR 97759 Property Address: Westgate Phases 5, 6, & 7, Bend, OR 97703 Escrow Officer: Tiana L. VanLanduyt Email: tana.vanlanduyt@westerntitle.com Phone: 541-548-9182 File No.: WT0200399 Introducing LiveLOOK LiveLOOK title document delivery system is designed to provide 24/7 real-time access to all information related to a title insurance transaction. Access title reports, exception documents, an easy -to -use summary page, and more, at your fingertips and your convenience. To view your new Western Title LiveLOOK report, Click Here Effortless, Efficient, Compliant, and Accessible Western PRELIMINARY REPORT In response to the application for a policy of title insurance referenced herein Western Title & Escrow Company hereby reports that it is prepared to issue, or cause to be issued, as of the specified date, a policy or policies of title insurance describing the land and the estate or interest hereinafter set forth, insuring against loss which may be sustained by reason of any defect, lien or encumbrance not shown or referred to as an exception herein or not excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations or Conditions of said policy forms. The printed Exceptions and Exclusions from the coverage of said policy or policies are set forth in Exhibit One. Copies of the policy forms should be read. They are available from the office which issued this report. This report (and any supplements or amendments hereto) is issued solely for the purpose of facilitating the issuance of a policy of title insurance and no liability is assumed hereby. The policy(s) of title insurance to be issued hereunder will be policy(s) of Fidelity National Title Insurance Company, a/an Florida corporation. Please read the exceptions shown or referred to herein and the Exceptions and Exclusions set forth in Exhibit One of this report carefully. The Exceptions and Exclusions are meant to provide you with notice of matters which are not covered under the terms of the title insurance policy and should be carefully considered. It is important to note that this preliminary report is not a written representation as to the condition of title and may not list all liens, defects and encumbrances affecting title to the land. This preliminary report is for the exclusive use of the parties to the contemplated transaction, and the Company does not have any liability to any third parties nor any liability until the full premium is paid and a policy is issued. Until all necessary documents are placed of record, the Company reserves the right to amend or supplement this preliminary report. Countersigned Preliminary Report Printed: 01 21.21 @ 05:49 PM O R-F T-F F N D-027 65.470062E P S 1-21-W T0200399 Western 220 S Pine Street, Suite 102, Sisters, OR 97759 (541)548-9180 FAX (541)588-6601 PRELIMINARY REPORT ESCROW OFFICER: Tiana L. VanLanduyt tiana.vanlanduyt@westerntitle.com 541-548-9182 TITLE OFFICER: Tyler Friesen Email: titleofficersupport@westerntitle.com TO: Western Title & Escrow Company 220 S Pine Street, Suite 102 Sisters, OR 97759 ESCROW LICENSE NO.: 201110072 OWNER/SELLER: Rio Lobo Investments, LLC BUYER/BORROWER: Empire Westgate LLC PROPERTY ADDRESS: Westgate Phases 5, 6, & 7, Bend, OR 97703 ORDER NO.: WT0200399 EFFECTIVE DATE: January 15, 2021, 05:00 PM 1. THE POLICY AND ENDORSEMENTS TO BE ISSUED AND THE RELATED CHARGES ARE: AMOUNT PREMIUM ALTA Owner's Policy 2006 $ TBD $ TBD Owner's Standard Proposed Insured: Empire Westgate LLC 2. THE ESTATE OR INTEREST IN THE LAND HEREINAFTER DESCRIBED OR REFERRED TO COVERED BY THIS REPORT IS: Fee Simple 3. TITLE TO SAID ESTATE OR INTEREST AT THE DATE HEREOF IS VESTED IN: Rio Lobo Investments, LLC 4. THE LAND REFERRED TO IN THIS REPORT IS SITUATED IN THE COUNTY OF DESCHUTES, STATE OF OREGON, AND IS DESCRIBED AS FOLLOWS: SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF Preliminary Report Printed: 01.2121 (0j 05:49 PM OR-FT-FFND-02785 470062EP51-21-WT0200399 Order No.. WT0200399 EXHIBIT "A" Legal Description Land located in the Southeast % and the Southwest % of Section 26, and the Northwest''/. and the Northeast % of Section 35, Township 17 South, Range 11 East, Willamette Meridian, Deschutes County, Oregon, more particularly described as follows: Beginning at the East 1/16th corner common to said Sections 26 and 35; Thence North 89°54'53" West 189.55 feet; Thence along the arc of a curve to the left having a radius of 300.00 feet, an arc length of 264.85 feet, a total angle of 50°34'57", and a chord which bears South 64°47'39" West 256.33 feet; Thence South 39°30'10" West 483.56 feet; Thence South 28°32'00" East 421.62 feet; Thence South 29°32'55" East 30.00 feet; Thence along the arc of a curve to the right having a radius of 665.00 feet, and arc length of 38.47 feet, a total angle of 3°18'51", and a chord which bears South 62°06'30" West 38.46 feet; Thence South 26°14'04" East 466.46 feet to a point on the Northerly boundary of Tree Farm, CS 19225, Deschutes County Survey Records; Thence along said Northerly boundary North 89°57'40" West 990.92 feet to the center North 1/16 corner of said Section 35; Thence continuing along said Northerly boundary North 89°54'39" West 377.65 feet to a point, said point being the intersection of said Northerly line and the Easterly boundary of Westgate Phase 4, CS 20296, Deschutes County Survey Records; Thence along said Easterly boundary North 2°44'26" West 368.60 feet to a point on the Southerly private right of way of Huntsman Loop; Thence continuing along said boundary, being also the Southerly private right of way of Huntsman Loop, along the arc of a curve to the right having a radius of 585.00 feet, an arc length of 3.91 feet, a total angle of 0°22'58", an a chord which bears North 87°27'03" East 3.91 feet; Thence leaving said Southerly private right of way continuing along said Easterly boundary of Westgate Phase 4 North 2°21'28" West 30.00 feet to a point on the Northerly Private Right of Way of said Huntsman Loop; Thence leaving said Northerly private right of way continuing along said Easterly boundary of Westgate Phase 4 North 0°11'03" East 74.81 feet; Thence continuing along said boundary along the arc of a curve to the right having a radius of 956.00 feet, and arc length of 656.05 feet, a total angle of 39°19'07", and a chord which bears North 19°50'36" East 643.25 feet; Thence continuing along said boundary North 39°30'10" East 333.45 feet; Thence continuing along said boundary North 66°43'56" West 220.65 feet; Thence continuing along said boundary North 50°29'50" West 390.67 feet to a point, said point being the intersection of said Easterly boundary of Westgate Phase 4 and the Easterly boundary of Westgate Phase 2, CS Preliminary Report Printed: 01 21 21 @ 05:49 PM OR-FT-FFND-02785 470062-SPS1-21-WT0200399 Order No.: WT0200399 EXHIBIT "A" Legal Description 20176, Deschutes County Survey Records; Thence along said Easterly boundary of Westgate Phase 2 boundary North 26°23'20" East 184.66 feet; Thence continuing along said boundary North 20°22'36" East 420.27 feet; Thence continuing along said boundary North 42°22'33" East 150.78 feet; to a point, said point being the intersection of the Easterly boundary of said Westgate Phase 2 and the Southerly boundary of Westgate Phase 1, CS 20307, Deschutes County Survey Records; Thence along said Southerly boundary of Westgate Phase 1 North 42°22'33" East 384.49; Thence continuing along said boundary North 71 °39'57" East 462.77 feet; Thence continuing along said boundary South 0°13'35" West 232.90 feet; Thence continuing along said boundary South 89°46'25" East 345.00 feet to a point on the Westerly right of way of McClain Drive; Thence continuing along said boundary also being said Westerly right of way South 0°13'35" West 112.98 feet; Thence leaving said right of way continuing along said boundary South 89°46'25" East 429.99 feet to a point on the Westerly boundary of Anderson Ranch P.U.D., CS 14827, Deschutes County Survey Records, South 0°13'45" West 1108.98 to the point of beginning. Preliminary Report Printed: 01 21 21 @ 05:49 PM OR-FT-FFND-027135 470062-SPS1-21-WT0200399 Order No.: WT0200399 AS OF THE DATE OF THIS REPORT, ITEMS TO BE CONSIDERED AND EXCEPTIONS TO COVERAGE IN ADDITION TO THE PRINTED EXCEPTIONS AND EXCLUSIONS IN THE POLICY FORM WOULD BE AS FOLLOWS: GENERAL EXCEPTIONS: 1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records; proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the Public Records. 2. Any facts, rights, interests or claims, which are not shown by the Public Records but which could be ascertained by an inspection of the Land or by making inquiry of persons in possession thereof. 3. Easements, or claims of easement, which are not shown by the Public Records; reservations or exceptions in patents or in Acts authorizing the issuance thereof; water rights, claims or title to water. 4. Any encroachment (of existing improvements located on the Land onto adjoining land or of existing improvements located on adjoining land onto the subject Land), encumbrance, violation, variation or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the subject Land. 5. Any lien or right to a lien for services, labor, material, equipment rental or workers compensation heretofore or hereafter furnished, imposed by law and not shown by the Public Records. SPECIFIC ITEMS AND EXCEPTIONS: 6. Declaration of Restrictive Covenant regarding Right -of -Way Dedication and Road Construction, including the terms and provisions thereof; Recording Date: Recording No: Between: And: July 2, 2015 2015-26734 Rio Lobo Investments, LLC Miller Tree Farm, LLC 7 An option to purchase said Land with certain terms, covenants, conditions and provisions as set forth therein. Optionor: Optionee: Disclosed by: Recording Date: Recording No: Rio Lobo Investments, LLC, an Oregon limited liability company Empire Westgate LLC, an Oregon limited liability company Memorandum of Option Agreement and Agreement of Purchase and Sale November 12, 2019 2019-43944 8. Infrastructure Development Agreement to Support Urban and Rural Development in the West Bend Area, including the terms and provisions thereof, Recording Date: Recording No: Between: And: November 16, 2018 2018-45904 City of Bend, a municipal corporation of the State of Oregon Rio Lobo Investments, LLC, an Oregon limited liability company etal. Preliminary Report Printed: 01 21 21 @ 05:49 PM OR-FT-FFND-02785 470062-SPS1-21-WT0200399 Order No.: WT0200399 9. Extraterritorial Service Agreement, including the terms and provisions thereof, Recording Date: December 5, 2019 Recording No: 2019-47539 Between: Rio Lobo Investments, LLC And: City of Bend 10. Agreement Waiving Time Limit on Consent to Annexation, including the terms and provisions thereof, Recording Date: December 5, 2018 Recording No: 2019-47540 Between: Rio Lobo Investments, LLC And: City of Bend 11. Contract for Extraterritorial Provision of Service and Consent to Annexation, including the terms and provisions thereof, Recording Date: December 12, 2019 Recording No: 2019-48578 Between: Rio Lobo Investments, LLC And: City of Bend 12. Public Facilities Improvement Agreement, including the terms and provisions thereof, Recording Date: January 15, 2020 Recording No: 2020-02028 Between: Rio Lobo Investments, LLC and Empire Westgate, LLC And: City of Bend 13. Improvement Agreement, including the terms and provisions thereof, Recording Date: February 18, 2020 Recording No: 2020-07122 Between: Deschutes County, Oregon, a political subdivision of the State of Oregon And: Empire Westgate, LLC Amendment No. 1 to Improvement Agreement, including the terms and provisions thereof, Recording Date: August 24, 2020 Recording No.: 2020-42508 14. Trail Easement, including the terms and provisions thereof, Recording Date: September 8, 2020 Recording No: 2020-45991 Between: Rio Lobo Investments, LLC, an Oregon limited liability company And: Bend Park & Recreation District, an Oregon special district 15. Easements, conditions, restrictions and notes as delineated on the recorded plat of Westgate Phase 2. 16. Please be advised that our search did not disclose any open Deeds of Trust of record. If you should have knowledge of any outstanding obligation, please contact the Title Department immediately for further review prior to closing. Pmliminary Report Printed: 01 21 21 @ 05:49 PM OR-FT-FFN D-02785.470062-S PS1-21-W T0200399 Order No : WT0200399 17, The Company has on file a copy of the Operating Agreement for Rio Lobo Investments, LLC, dated June 17, 2013. A copy of any amendments subsequent to the date of said Operating Agreement should be fumished for review prior to closing. The Company reserves the right to add additional items or make further requirements after review of the requested documentation. The Oregon Corporation Commission records show that as of June 17, 2013, Rio Lobo Investments, LLC is an active Oregon limited liability company and is currently in good standing. ADDITIONAL REQUIREMENTS/NOTES: A. Notice: Please be aware that due to the conflict between federal and state laws concerning the cultivation, distribution, manufacture or sale of marijuana, the Company is not able to close or insure any transaction involving Land that is associated with these activities. B. In addition to the standard policy exceptions, the exceptions enumerated above shall appear on the final 2006 ALTA Policy unless removed prior to issuance. Note: Property taxes for the fiscal year shown below are paid in full. Fiscal Year: 2020-2021 Amount: $6,077.71 Levy Code: 1016 Account No.: 280652 Map No.: 17-11-26-00-00800 (Covers additional property) Note: Property taxes for the fiscal year shown below are paid in full. Fiscal Year: 2020-2021 Amount: $4,829.39 Levy Code: 1016 Account No.: 280656 Map No.: 17-11-35-00-01200 (Covers additional property) Prior to close of escrow, please contact the Tax Collector's Office to confirm all amounts owing, including current fiscal year taxes, supplemental taxes, escaped assessments and any delinquencies. D. Note: There are no matters against the party(ies) shown below which would appear as exceptions to coverage in a title insurance product: Parties: Empire Westgate LLC E. The Company has on file a copy of the Operating Agreement for Empire Westgate LLC, dated October 1, 2019. A copy of any amendments subsequent to the date of said Operating Agreement should be furnished for review prior to closing. The Company reserves the right to add additional items or make further requirements after review of the requested documentation. Preliminary Report Printed: 01.21 21 @ 05:49 PM OR-F T-F F N D-02785.470062-S PS 1-21- W T0200399 Order No.: WT0200399 The Oregon Corporation Commission records show that as of October 1, 2019, Empire Westgate LLC is an active Oregon limited liability company and is currently in good standing. F. Note: There are NO conveyances affecting said Land recorded within 24 months of the date of this report. G. THE FOLLOWING NOTICE IS REQUIRED BY STATE LAW: YOU WILL BE REVIEWING, APPROVING AND SIGNING IMPORTANT DOCUMENTS AT CLOSING. LEGAL CONSEQUENCES FOLLOW FROM THE SELECTION AND USE OF THESE DOCUMENTS. YOU MAY CONSULT AN ATTORNEY ABOUT THESE DOCUMENTS. YOU SHOULD CONSULT AN ATTORNEY IF YOU HAVE QUESTIONS OR CONCERNS ABOUT THE TRANSACTION OR ABOUT THE DOCUMENTS. IF YOU WISH TO REVIEW TRANSACTION DOCUMENTS THAT YOU HAVE NOT SEEN, PLEASE CONTACT THE ESCROW AGENT. H. Note: No utility search has been made or will be made for water, sewer or storm drainage charges unless the City/Service District claims them as liens (i.e. foreclosable) and reflects them on its lien docket as of the date of closing. Buyers should check with the appropriate city bureau or water service district and obtain a billing cutoff. Such charges must be adjusted outside of escrow. Note: This map/plat is being furnished as an aid in locating the herein described Land in relation to adjoining streets, natural boundaries and other land. Except to the extent a policy of title insurance is expressly modified by endorsement, if any, the Company does not insure dimensions, distances or acreage shown thereon. J. Note: Recording charge per document for: Deschutes County - $93.00 for the first page, $5.00 for each additional page E-recording fee is an additional $5.00 per document Send Recording Packages to: Western Title & Escrow Company Attention: Recording 360 SW Bond, Suite 100 Bend, OR 97702 Email: desrecordinqawesterntitle.com Preliminary Report Printed: 01.2121 a@ 05:49 PM OR-FT-FFND-02785 470062-SPS1-21-WT0200399 EXHIBIT ONE 2006 AMERICAN LAND TITLE ASSOCIATION LOAN POLICY (06.17-06) EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses that arise by reason of: 1. (a) Any law, ordinance or govemmental regulation (including but not limited to building and zoning) restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the Land; (ii) the character, dimensions or location of any improvement erected on the land; (iii) the subdivision of and; or (is) environmental protection; or the effect of any violation of these laws, ordinances or govemmental regulations. This Exclusion 1(a) does not modify or limit the coverage provided under Covered Risk 5. (b) My govemmental police power. This Exclusion 1(b) does not modify or limit the coverage provided under Covered Risk 6. 2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8, 3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed or agreed to by the Insured Claimant; (b) not known to the Company, not recorded in the Public Records at Date of Policy, but known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy; (c) resulting in no loss or damage to the Insured Claimant; (d) attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under Covered Risk 11, 13, or 14); or (e) resulting in loss or damage that would not have been sustained it the Insured Claimant had paid value for the Insured Mortgage. 4. Unenforceability of the lien of the Insured Mortgage because of the inability or failure of an Insured to comply with the applicable doing -business laws of the state where the Land i5 situated, 5. Invalidity or unenforceability in whole or in part of the lien of the Insured Mortgage that arises out of the transaction evidenced by the Insured Mortgage and is based upon usury or any consumer credit protection or truth -in -lending law 6 My claim, by reason of the operation of federal bankruptcy, state insolvency or similar creditors' rights laws, that the transaction creating the lien of the Insured Mortgage, is (a) a fraudulent conveyance or fraudulent transfer, or (b) a preferential transfer for any reason not stated in the Covered Risk 13(b) of this policy. 7 My lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Date of Policy and the date of recording of the Insured Mortgage in the Public Records. This Exclusion does not modify or limit the coverage provided under Covered Risk 11(b). The above policy form may be issued to afford either Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage, the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage. SCHEDULE B - GENERAL EXCEPTIONS FROM COVERAGE This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: 1 Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records; proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the Public Records. 2. Facts, rights, interests or claims which are not shown by the Public Records but which could be ascertained by an inspection of the Land or by making inquiry of persons in possession thereof. 3 Easements, or claims of easement, not shown by the Public Records; reservations or exceptions in patents or in Acts authorizing the issuance thereof, water rights, claims or title to water 4 Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land. The term "encroachment" includes encroachments of existing improvements located on the Land onto adjoining land, and encroachments onto the Land of existing improvements located on adjoining land. 5 My lien for services, labor or material heretofore or hereafter furnished, or for contributions due to the State of Oregon for unemployment compensation or worker's compensation, imposed by law and not shown by the Public Records. 2006 AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY (06-17.06) EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses that arise by reason of: 1 (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning) restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the Land; (ii) the character, dimensions or location of any improvement erected on the land; (iii) the subdivision of land; or (iv) environmental protection; or the effect of any violation of these laws, ordinances or govemmental regulations, This Exclusion 1(a) does not modify or limit the coverage provided under Covered Risk 5. (b) Any governmental police power This Exclusion 1(b) does not modify or limit the coverage provided under Covered Risk 6 2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8. 3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed or agreed to by the Insured Claimant; (b) not known to the Company, not recorded in the Public Records at Date of Policy, but known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy; (c) resulting in no loss or damage to the Insured Claimant; (d) attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under Covered Risk 9 and 10); or (e) resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Title. 4 Any claim, by reason of the operation of federal bankruptcy, state insolvency or similar creditors' rights laws, that the transaction creating the lien of the Insured Mortgage, is (a) a fraudulent conveyance or fraudulent transfer, or (b) a preferential transfer for any reason not stated in the Covered Risk 9 of this policy. 7 Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Date of Policy and the date of recording of the deed or other instrument of transfer in the Public Records that vests Title as shown in Schedule A The above policy form may be issued to afford either Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage, the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage. SCHEDULE B - GENERAL EXCEPTIONS FROM COVERAGE This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: 1 Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records; proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the Public Records. 2 Facts, rights, interests or claims which are not shown by the Public Records but which could be ascertained by an inspection of the Land or by making inquiry of persons in possession thereof. 3. Easements, or claims of easement, not shown by the Public Records; reservations or exceptions in patents or in Acts authorizing the issuance thereof, water rights, claims or title to water, 4. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land. The term "encroachment" includes encroachments of existing improvements located on the Land onto adjoining land, and encroachments onto the Land of existing improvements located on adjoining land. 5. Any lien for services, labor or material heretofore or hereafter fumished, or for contributions due to the Slate of Oregon for unemployment compensation or worker's compensation, imposed by law and not shown by the Public Records Preliminary Report (Exhibit One) Printed: 01.21 21 @ 05:49 PM OR-FT-FFND-02785 470062-SPS1-21-1NT0200399 IRE SAFE., Inquire before you wire! WIRE FRAUD ALERT This Notice is not intended to provide legal or professional advice. If you have any questions, please consult with a lawyer. All parties to a real estate transaction are targets for wire fraud and many have lost hundreds of thousands of dollars because they simply relied on the wire instructions received via email, without further verification. If funds are to be wired in conjunction with this real estate transaction, we strongly recommend verbal verification of wire instructions through a known, trusted phone number prior to sending funds. In addition, the following non-exclusive self-protection strategies are recommended to minimize exposure to possible wire fraud. • NEVER RELY on emails purporting to change wire instructions. Parties to a transaction rarely change wire instructions in the course of a transaction. • ALWAYS VERIFY wire instructions, specifically the ABA routing number and account number, by calling the party who sent the instructions to you. DO NOT use the phone number provided in the email containing the instructions, use phone numbers you have called before or can otherwise verify. Obtain the number of relevant parties to the transaction as soon as an escrow account is opened. DO NOT send an email to verify as the email address may be incorrect or the email may be intercepted by the fraudster. • USE COMPLEX EMAIL PASSWORDS that employ a combination of mixed case, numbers, and symbols. Make your passwords greater than eight (8) characters. Also, change your password often and do NOT reuse the same password for other online accounts. = USE MULTI -FACTOR AUTHENTICATION for email a'r•nl inter Your email provider or IT staff may have spec'ftt A AUTHENTICATION ^J r__..._ instructions on how to implement this feature. For more information on wire -fraud scams or to report an incident, please refer to the following links: Federal Bureau of investigation: Internet Crime Complaint Center: http://www.fbLriov http://www.ic3.gov Wire Fraud Alert Original Effective Date: 5/11/2017 Current Version Date: 5/11/2017 WT0200399-TLV- WIRE0016 (DSI Rev 12/07/17) TM and © Fidelity National Financial, Inc. and/or an affiliate . All rights reserved FIDELITY NATIONAL FINANCIAL PRIVACY NOTICE Effective April 9, 2020 Fidelity National Financial, Inc. and its majority -owned subsidiary companies (collectively, "FNF," "our," or "we") respect and are committed to protecting your privacy. This Privacy Notice explains how we collect, use, and protect personal information, when and to whom we disclose such information, and the choices you have about the use and disclosure of that information. A limited number of FNF subsidiaries have their own privacy notices. If a subsidiary has its own privacy notice, the privacy notice will be available on the subsidiary's website and this Privacy Notice does not apply. Collection of Personal Information FNF may collect the following categories of Personal Information: • contact information (e.g., name, address, phone number, email address); • demographic information (e.g., date of birth, gender, marital status); • identity information (e.g. Social Security Number, driver's license, passport, or other government ID number); • financial account information (e.g. loan or bank account information); and • other personal information necessary to provide products or services to you. We may collect Personal Information about you from: • information we receive from you or your agent; • information about your transactions with FNF, our affiliates, or others; and • information we receive from consumer reporting agencies and/or governmental entities, either directly from these entities or through others. Collection of Browsing Information FNF automatically collects the following types of Browsing information when you access an FNF website, online service, or application (each an "FNF Website") from your Internet browser, computer, and/or device: • Internet Protocol (IP) address and operating system; • browser version, language, and type; • domain name system requests; and • browsing history on the FNF Website, such as date and time of your visit to the FNF Website and visits to the pages within the FNF Website. Like most websites, our servers automatically log each visitor to the FNF Website and may collect the Browsing Information described above. We use Browsing Information for system administration, troubleshooting, fraud investigation, and to improve our websites. Browsing Information generally does not reveal anything personal about you, though if you have created a user account for an FNF Website and are logged into that account, the FNF Website may be able to link certain browsing activity to your user account. Other Online Specifics Cookies. When you visit an FNF Website, a "cookie" may be sent to your computer. A cookie is a small piece of data that is sent to your Internet browser from a web server and stored on your computer's hard drive. Information gathered using cookies helps us improve your user experience. For example, a cookie can help the website Toad properly or can customize the display page based on your browser type and user preferences. You can choose whether or not to accept cookies by changing your Internet browser settings. Be aware that doing so may impair or limit some functionality of the FNF Website. Privacy Statement Printed: 01.21.21 (§2 05:49 PM by EKP ORD1047,doc OR-WTE-FFND-02765.470063-WT0200399 Web Beacons. We use web beacons to determine when and how many times a page has been viewed. This information is used to improve our websites. Do Not Track. Currently our FNF Websites do not respond to "Do Not Track" features enabled through your browser. Links to Other Sites. FNF Websites may contain links to unaffiliated third -party websites. FNF is not responsible for the privacy practices or content of those websites. We recommend that you read the privacy policy of every website you visit. Use of Personal Information FNF uses Personal Information for three main purposes: • To provide products and services to you or in connection with a transaction involving you. • To improve our products and services. • To communicate with you about our, our affiliates', and others' products and services, jointly or independently. When Information Is Disclosed We may disclose your Personal Information and Browsing Information in the following circumstances: • to enable us to detect or prevent criminal activity, fraud, material misrepresentation, or nondisclosure; • to nonaffiliated service providers who provide or perform services or functions on our behalf and who agree to use the information only to provide such services or functions; • to nonaffiliated third party service providers with whom we perform joint marketing, pursuant to an agreement with them to jointly market financial products or services to you; • to law enforcement or authorities in connection with an investigation, or in response to a subpoena or court order; or • in the good -faith belief that such disclosure is necessary to comply with legal process or applicable laws, or to protect the rights, property, or safety of FNF, its customers, or the public. The law does not require your prior authorization and does not allow you to restrict the disclosures described above. Additionally, we may disclose your information to third parties for whom you have given us authorization or consent to make such disclosure. We do not otherwise share your Personal Information or Browsing Information with nonaffiliated third parties, except as required or permitted by law. We may share your Personal Information with affiliates (other companies owned by FNF) to directly market to you. Please see "Choices with Your Information" to learn how to restrict that sharing. We reserve the right to transfer your Personal Information, Browsing Information, and any other information, in connection with the sale or other disposition of all or part of the FNF business and/or assets, or in the event of bankruptcy, reorganization, insolvency, receivership, or an assignment for the benefit of creditors. By submitting Personal Information and/or Browsing Information to FNF, you expressly agree and consent to the use and/or transfer of the foregoing information in connection with any of the above described proceedings. Security of Your Information We maintain physical, electronic, and procedural safeguards to protect your Personal Information. Choices With Your Information If you do not want FNF to share your information among our affiliates to directly market to you, you may send an "opt out" request by email, phone, or physical mail as directed at the end of this Privacy Notice. We do not share your Personal Information with nonaffiliates for their use to direct market to you without your consent. Whether you submit Personal Information or Browsing Information to FNF is entirely up to you. If you decide not to submit Personal Information or Browsing Information, FNF may not be able to provide certain services or products to you. Privacy Statement Printed: 01.21.21 @ 05:49 PM by EKP ORD1047 doc OR-WTE-FFND-02785.470063-WT0200399 For California Residents: We will not share your Personal Information or Browsing Information with nonaffiliated third parties, except as permitted by California law. For additional information about your California privacy rights, please visit the "California Privacy' link on our website (https://fnf.com/pages/californiaprivacy.aspx) or call (888) 413-1748. For Nevada Residents: You may be placed on our internal Do Not Call List by calling (888) 934-3354 or by contacting us via the information set forth at the end of this Privacy Notice. Nevada law requires that we also provide you with the following contact information: Bureau of Consumer Protection, Office of the Nevada Attorney General, 555 E. Washington St., Suite 3900, Las Vegas, NV 89101; Phone number: (702) 486-3132; email: BCPINFO@ag.state.nv.us. For Oregon Residents: We will not share your Personal Information or Browsing Information with nonaffiliated third parties for marketing purposes, except after you have been informed by us of such sharing and had an opportunity to indicate that you do not want a disclosure made for marketing purposes. For Vermont Residents: We will not disclose information about your creditworthiness to our affiliates and will not disclose your personal information, financial information, credit report, or health information to nonaffiliated third parties to market to you, other than as permitted by Vermont law, unless you authorize us to make those disclosures. Information From Children The FNF Websites are not intended or designed to attract persons under the age of eighteen (18). We do not collect Personal Information from any person that we know to be under the age of thirteen (13) without permission from a parent or guardian. International Users FNF's headquarters is located within the United States. If you reside outside the United States and choose to provide Personal Information or Browsing Information to us, please note that we may transfer that information outside of your country of residence. By providing FNF with your Personal Information and/or Browsing Information, you consent to our collection, transfer, and use of such information in accordance with this Privacy Notice. FNF Website Services for Mortgage Loans Certain FNF companies provide services to mortgage loan servicers, including hosting websites that collect customer information on behalf of mortgage loan servicers (the "Service Websites"). The Service Websites may contain links to both this Privacy Notice and the mortgage loan servicer or lender's privacy notice. The sections of this Privacy Notice titled When Information is Disclosed, Choices with Your Information, and Accessing and Correcting Information do not apply to the Service Websites. The mortgage loan servicer or lender's privacy notice governs use, disclosure, and access to your Personal Information. FNF does not share Personal Information collected through the Service Websites, except as required or authorized by contract with the mortgage loan servicer or lender, or as required by law or in the good -faith belief that such disclosure is necessary: to comply with a legal process or applicable law, to enforce this Privacy Notice, or to protect the rights, property, or safety of FNF or the public. Your Consent To This Privacy Notice; Notice Changes; Use of Comments or Feedback By submitting Personal Information and/or Browsing Information to FNF, you consent to the collection and use of the information in accordance with this Privacy Notice. We may change this Privacy Notice at any time. The Privacy Notice's effective date will show the last date changes were made. If you provide information to us following any change of the Privacy Notice, that signifies your assent to and acceptance of the changes to the Privacy Notice. We may use comments or feedback that you submit to us in any manner without notice or compensation to you. Privacy Statement Printed: 01 21.21 @ 05:49 PM by EKP ORD1047 doc OR-WTE-FFND-02785 470063-WT0200399 Accessing and Correcting Information; Contact Us If you have questions, would like to correct your Personal Information, or want to opt -out of information sharing for affiliate marketing, send your requests to privacy@fnf.com, by phone to (888) 934-3354, or by mail to: Fidelity National Financial, Inc. 601 Riverside Avenue, Jacksonville, Florida 32204 Attn: Chief Privacy Officer Privacy Statement Printed: 0121,21 @ 05:49 PM by EKP ORD1047.doc OR-WTE-FFND-02785.470063-WT0200399