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2021-196-Minutes for Meeting April 28,2021 Recorded 5/13/2021E S C0(1 BOARD OF COMMISSIONERS 1300 NW Wall Street, Bend, Oregon (541 ) 388-6570 Recorded in Deschutes County CJ2021-196 Nancy Blankenship, County Clerk Commissioners' Journal 05/13/2021 10:16:24 AM FJ. C�G�i II I I I III I IIII II I I II II I II (III III 2021-196 FOR RECORDING STAMP ONLY Wednesday, April 2a 2021 BARNES & SAWYER ROOMS VIRTUAL MEETING PLATFORM Present were Commissioners Patti Adair, Anthony DeBone, and Phil Chang. Also present were Tom Anderson, County Administrator; Amy Heverly, Assistant 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.igm2.com/Citizens/Default.aspx CALL TO ORDER: Chair DeBone called the meeting to order at 9:01 a.m. PLEDGE OF ALLEGIANCE: CITIZEN INPUT: Commissioner DeBone acknowledged two emails received through our citizen input line: • Nancy Clausen regarding the homeless camps near Lowes and behind Les Schwab off 3rd Street Karon Johnson a regarding opposition to the demolition of Worrell Park BOCC MEETING APRIL 28 2021 PAGE 1 OF 11 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 to Reappoint Erin Taylor to the Deschutes County Public Safety Coordinating Council 2. Approval of Minutes of the April 14, 2021 BOCC Meeting 3. Approval of Minutes of the April 15, 2021 Budget Committee Meeting 4. Approval of Minutes of the April 16, 2021 Legislative Update Meeting 5. Approval of Minutes of the April 19, 2021 BOCC Meeting 6. Approval of Minutes of the April 21, 2021 BOCC Meeting ACTION ITEMS: 7. READING OF A PROCLAMATION: Declaring the Month of April as Fair Housing Month Tyler Neese and Louis Hoffman of Central Oregon Association of Realtors presented the proclamation for consideration. Commissioner Chang commented on the impacts realized through discrimination and is appreciative of the recognition of fair housing month. Commissioner Adair commented on the importance to our country and feels this should be acknowledged during the first part of April next year and read the proclamation into the record. CHANG: Move adoption of proclamation ADAIR: Second Commissioner DeBone thanked the association for bringing this forward. BOCC MEETING APRIL 28 2021 PAGE 2 OF 11 Commissioner DeBone also commented on proposed veteran's villages that are planned for the area. Commissioner Chang commented on the history of the Fair Housing Act and the need to look deeper at the institutions that create and finance housing for affordable access to housing. VOTE: CHANG: Yes ADAIR: Yes DEBONE: Chair votes yes. Motion Carried 8. Modification to Statewide Transportation Improvement Fund Project Plan for 2021-23 Communications Director Whitney Hale and via Zoom conference call Cascades East Transit Director Andrea Breault presented the ODOT requested modification to the STIF project plan. Discussion held on funding. CHANG: Move approval of addition of Project 8 Program Reserve Funds to the FY 2021-23 Statewide Transportation Improvement Fund Plan ADAIR: Second VOTE: CHANG: Yes ADAIR: Yes DEBONE: Chair votes yes. Motion Carried 9. Consideration of Chair Signature of Document No. 2021-044, a Notice of Intent to Award Contract for the Rickard Road: Groff Road to US 20 Improvement Project County Engineer Cody Smith (via Zoom conference call) presented information on the project. Six bids were received and the apparent low bidder is Knife River Corporation Northwest. The construction is anticipated from June through mid -August. BOCC MEETING APRIL 28 2021 PAGE 3 OF 11 ADAIR: Move approval of Chair Signature of Document No. 2021-044 CHANG: Second VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried 10.Consideration of Chair Signature of Document No. 2021-123, a Notice of Intent to Award Contract for the Slurry Seal - Various Maintenance Zones Project County Engineer Cody Smith (via Zoom conference call) presented information on the project. Five bids were received for the project and two bids were rejected because they were received past the submittal deadline, but noted that those bids would not have been the low bid. The apparent low bidder was Blackline, Inc. ADAIR- Move annroval of Chair Signature of Document No. 2021-1 23 CHANG: Second VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried 11.Consideration of Chair Signature of Document No. 2021-140, a First Amendment to Lease (Document No. 2016-144) Between Deschutes County and Munchkin Manor Preschool at the County, LLC Commissioner Chang acknowledged for the record that his son attended day care at Munchkin Manor. Property Manager Kristie Bollinger presented the document as an extension of the lease for five years. Commissioner DeBone noted the great service and the bid process that the County went through with this day care service BOCC MEETING APRIL 28 2021 PAGE 4 OF 11 in 2014. Discussion held on the child care services provided. ADAIR: Move approval of Chair Signature of Document No. 2021-140 CHANG: Second VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried 12.Consideration of Chair Signature of Document No. 2021-281, Intergovernmental Agreement with the Oregon Health Authority Behavioral Health Services Director Janice Garceau presented the document via Zoom conference call and reported on the services the department provides through this agreement. CHANG: Move approval of Chair Signature of Document No. 2021-281 ADAIR: Second VOTE: CHANG: Yes ADAIR: Yes DEBONE: Chair votes yes. Motion Carried 13.COVID19 Update Present via Zoom were Health Services staff Dr. George Conway, Nahad Sadr-Azodi, Molly Wells Darling, and Adrea Rodriguez -Lovejoy and Dr. Michael Johnson of St. Charles. The Small Business Administration is offering relief through the American Rescue Plan for a restaurant revitalization fund. RECESS: At the time of 11:11 a.m. the Board went into recess and reconvened at 11:13 a.m. ROCC MEETING APRIL 28 2021 PAGE 5 OF 11 14.PRESENTATION: Deschutes County Stabilization Center Update Holly Harris Health Services presented an update on the Deschutes County Stabilization Center reviewing the operations data of the past six months. Commissioner Adair excused herself at 11:27 a.m. for a requested media interview. 15.Consideration of Approval to Submit Nesting Scholarships Grant Application Barrett Flesh, Health Service presented this item via Zoom conference call explaining the services to be provided through the grant funds if awarded. CHANG: Move approval of grant application DEBONE: Second VOTE: CHANG: Yes ADAIR: Absent/excused DEBONE: Chair votes yes. Motion Carried 16.Consideration of Application for Measure 110 Harm Reduction Grant Barrett Flesh, Health Services, and Laurie Hubbard, Public Health Nurse, presented this item via Zoom conference call. Commissioner DeBone inquired whether homeless camp cleanup costs, including providing dumpsters, would be considered within the expense coverage of this grant. Ms. Hubbard explained that the services provided include supplies for safe disposal of needles and other sanitation related services and materials. Commissioner Adair was present at 11:51 a.m. CHANG: Move approval of grant application DEBONE: Second BOCC MEETING APRIL 28 2021 PAGE 6 OF 11 Commissioner Adair inquired why there was a request for another vehicle for this program. Ms. Hubbard explained the current vehicle in use is too small and the program is requesting a cargo van that is large enough to carry the supplies and people travelling for outreach in the homeless encampments. VOTE: CHANG: Yes ADAI R: Yes DEBONE: Chair votes yes. Motion Carried RECESS: At the time of 11:56 a.m. the Board went into recess and reconvened at 1:OOp.m. 17.Consideration of Board Signature of Order No. 2021-013, Further Extending the Declared State of Emergency Assistant Legal Counsel Amy Heverly presented the Order for consideration to extend the declaration for an additional 30 days. As Governor Kate Brown has placed Oregon's emergency updated through June 28, 2021 the Board recommended revision of the Order to reflect that date. ADAIR: Move adoption of Board Order No. 2021-013, as amended CHANG: Second VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried 18.Consideration of Chair Signature of Document No. 2021-221, Approval of Amendment to Services Agreement with Bar Seven a Company for Yard Debris and Wood Waste Management Services Director of Department of Solid Waste Timm Schimke presented via Zoom BOCC MEETING APRIL 28 2021 PAGE 7 OF 11 conference call explaining the services and cost covered through this contract. Mr. Schimke reported on an alternative method the department is looking at that would be a portable air curtain machine for incinerating yard debris and wood waste. Mr. Schimke noted he has spoken with Department of Environmental Quality and an air quality permit would be required. Commissioner Adair spoke on the benefits of providing all options for the community for the clean-up of our county and fire prevention. Discussion held on the possible benefit of the air curtain machine. The Firefree event starts this weekend for free yard debris disposal. ADIAR: Move Chair Signature of Document No. 2021-221 CHANG: Second VOTE: ADAI R: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried Mr. Schimke will present the request of the air curtain machine during the budget hearing week in June. 19.Review and Consideration of Board Signature of Document No. 2021- 308, an Approval of a Conditional Use Permit and Site Plan Review for a Private Campground at 64061 N Highway 97 Associate Planner Cynthia Smidt presented via Zoom conference call. The Board reviewed the findings and decision document regarding an appeal of a Hearings Officer's decision to deny the conditional use permit and site plan review for a private campground. Assistant Legal Counsel Adam Smith was present via Zoom conference call to clarify any items in the document. The Board made recommendations for language changes. Revisions will be made to the document and it will be presented to the Board on Wednesday, May 5. Mr. Smith offered individual meetings with Commissioners to review as the final deadline is next Wednesday, May 5. 20.Review and Consideration of Document No. 2021-223, Written Decision BOCC MEETING APRIL. 28 2021 PAGE 8 OF 11 Overturning a Hearing's Officer Denial on a Three Sisters Irrigation District Conditional Use and Site Plan Request Associate Planner Tarik Rawlings presented via Zoom conference call along with Assistant Legal Counsel Adam Smith and Planning Manager Peter Gutowsky. Commissioner Adair excused herself at this time due to a conflict of interest related to this item. The Board reviewed the draft findings and decision document regarding the Hearings Officer's decision to denial of the conditional use and site plan. CHANG: Move to approve file number 247-20-000635-A which are appeals of 191-CU, 192-CU, 193-SP, 461-MA and approve the draft decision as presented by staff reflecting the approval of those specified file numbers. DEBONE: Second Commissioner Chang inquired whether the Deschutes County Code should be revised to prevent these types of land use disputes and streamline considerations. VOTE: CHANG: Yes ADAIR: Absent/excused DEBONE: Chair votes yes. Motion Carried OTHER ITEMS: • Commissioner Adair attended a meeting with COVA yesterday and reported on the discussion regarding House Bill 2534 • Commissioner DeBone was on a call on Friday with chairs around the state with the Governor in preparation of extreme risk category. Commissioner Adair commented on the impacts to local businesses with the shutdown. Commissioner Chang commented on the last week seeing the highest number of cases since the start of the pandemic. Businesses are suffering because of the community not having personal responsibility and spreading COVID. We are at a critical moment to vaccinate people. QOCC MEETING APRIL 28 2021 PAGE 9 OF 11 • Commissioner DeBone commented on the community input regarding the non -partisan seat consideration • Commissioner Chang joined a meeting of the Deschutes Basin Water Collaborative and reported on the policy option package to support staffing at Oregon Water Resources Department. On Friday, attended a Pacific Northwest Forest Collaborative workshop and reported on federal fuels reduction work. On Thursday there was a meeting exploring more middle class working people into housing without a down payment requirement. • Commissioner Adair reported on a call with the Hoover Institute and commented on Washington's use of helicopters from the Vietnam War for fire fighting. • Community Development Department Director Nick Lelack reported Scot Asla has resigned from the Planning Commission causing a vacancy. • County Administrator Anderson presented a letter for Black Butte Ranch Police Chief Denney Kelly retirement. The Board supported the letter with the correction of one tvr)o. CHANG: Move approval of Board signature ADAIR: Second VOTE: CHANG: Yes ADAIR: Yes DEBONE: Chair votes yes. Motion Carried EXECUTIVE SESSION: At the time of 3:30 p.m. the Board went into Executive Sessions under ORS 192.660 (2) (e) Real Property Negotiations. The Board came out of Executive Session at 3:51 p.m. BOCC MEETING APRIL 28 2021 PAGE 10 OF 11 Being no further items to come before the Board, the meeting was adjourned at 3:51 p.m. DATED this t Day of Wav 2021 for the Deschutes County Board of Commissioners. -VU-K (�� P IL C AN ® VICE CHAIR PATTY ADAIR, COMMISSIONER RECORDING SECRETARY R BOCC MEETING APRIL 28 2021 PAGE 11 OF 11 BOCC MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 9:00 AM, WEDNESDAY, APRIL 28, 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 Wednesday, April 28, 2021 Page 1 of 4 providing testimony during a hearing, you will be placed in the waiting room until the time of testimony, staff will announce your name and unmute your connection to be invited for testimony. Detailed instructions will be included in the public hearing materials and will be announced at the outset of the public hearing. PLEDGE OF ALLEGIANCE CITIZEN INPUT (for items not on this Agenda) [Note: Because COVID-19 restrictions may limit or preclude in person attendance, citizen input comments may be emailed to citizeninputC@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 to Reappoint Erin Taylor to the Deschutes County Public Safety Coordinating Council 2. Approval of Minutes of the April 14, 2021 BOCC Meeting 3. Anoroval of Minutes of the April 15, 2021 Budget Committee Meeting - - 4. Approval of Minutes of the April 16, 2021 Legislative Update Meeting 5. Approval of Minutes of the April 19, 2021 BOCC Meeting 6. Approval of Minutes of the April 21, 2021 BOCC Meeting ACTION ITEMS 7. 9:05 AM READING of a PROCLAMATION: Declaring the Month of April as Fair Housing Month - Tom Anderson, County Administrator 8. 9:15 AM Modification to Statewide Transportation Improvement Fund Project Plan for 2021-23 - Whitney Hale, Communications Director 9. 9:30 AM Consideration of Chair Signature of Document No. 2021-044, a Notice of Intent to Award Contract for the Rickard Rd: Groff Rd to US 20 Improvement Project- Cody Smith, County Engineer Board of Commissioners BOCC Meeting Agenda Wednesday, April 28, 2021 Page 2 of 4 10. 9:35 AM Consideration of Board Chair Signature of Document No. 2021-123, a Notice of Intent to Award Contract for the Slurry Seal - Various Maintenance Zones Project. - Cody Smith, County Engineer 11. 9:40 AM Consideration of Chair Signature of Document No. 2021-140, a First Amendment to Lease (Document No. 2016-144) Between Deschutes County and Munchkin Manor Preschool at the County, LLC. - Kristie Bollinger, Property Manager 12. 9:50 AM Consideration of Chair Signature of Document No. 2021-281, Intergovernmental Agreement with the Oregon Health Authority - Kara Cronin, 13. 10:00 AM COVID19 Update 14. 11:00 AM PRESENTATION: Deschutes County Stabilization Center Update - Holly Harris, 15. 11:30 AM Consideration of Approval to Submit Nesting Scholarships Grant Application - Barrett Flesh, 16. 11:40 AM Consideration of Application for Measure 110 Harm Reduction Grant - Barrett Flesh, LUNCH RECESS 17. 1:00 PM Consideration of Board Signature of Order No. 2021-013, Further Extending the Declared State of Emergency - Amy Heverly, 18. 1:05 PM Consideration of Chair Signature of Document No. 2021-221, Approval of Amendment to Services Agreement with Bar Seven a Companies for Yard Debris and Wood Waste Management Services - Timm Schimke, Director of Solid Waste 19. 1:30 PM Review and Consideration of Board Signature of Document No. 2021- 308, an Approval of a Conditional Use Permit and Site Plan Review for a Private Campground at 64061 N Highway 97 - Cynthia Smidt, Associate Planner Board of Commissioners BOCC Meeting Agenda Wednesday, April 28, 2021 Page 3 of 4 20. 1:45 PM Review and Consideration of Document No. 2021-223, Written Decision Overturning a Hearing's Officer Denial on a Three Sisters Irrigation District Conditional Use and Site Plan Request - Tarik Rawlings, Associate 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 Property Negotiations ADJOURN To watch this meeting on line, go to: www.deschutes.org/meetings Please note that the video will not show up until recording begins. You can also view past meetings on video by selecting the date shown on the website calendar. Deschutes County encourages persons with disabilities to participate in all programs and activities. This event/location is accessible to people with disabilities. If you need accommodations to make participation possible, please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.org/meetingcalendar (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St, Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572.) Board of Commissioners BOCC Meeting Agenda Wednesday, April 28, 2021 Page 4 of 4 ES COG <v -A 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 April 28, 2021 DATE: April 14, 2021 FROM: Whitney Hale, Administrative Services, 541-330-4640 TITLE OF AGENDA ITEM: Modification to Statewide Transportation Improvement Fund Project Plan for 2021-23 RECOMMENDATION & ACTION REQUESTED: Approve addition of Project 8 Program Reserve Funds to the FY2021-23 Statewide Transportation Improvement Fund Plan. BACKGROUND AND POLICY IMPLICATIONS: On January 20, the Deschutes County Board of Commissioners approved the 2021-23 Statewide Transportation Improvement Fund (STIF) projects. ODOT staff have requested that Deschutes County add a new "Project" within the STIF plan to create a program reserve and account for unspent funds from '19-21 biennium. Staff is seeking Board approval on the addition of Project 8 - Program Reserve to the FY 2021-23 STIF plan. Following this update, the STIF plan will be reviewed by Oregon's Public Transportation Advisory Committee (PTAC) and the Oregon Transit Association (OTA). FISCAL IMPLICATIONS: Funds will be budgeted in the FY 2022 and FY 2023 budgets. ATTENDANCE: Andrea Breault, Transportation Director for Cascades East Transit; Whitney Hale, Communications Director To: Board of County Commissioners From: Andrea Breault, Transportation Director for Cascades East Transit Subject: Update to 2021-2023 Statewide Transportation Improvement Fund (STIF) Plan Date: April 19, 2021 On January 20, the Deschutes County Board of Commissioners approved the 2021-23 Statewide Transportation Improvement Fund (STIF) projects (summary of projects attached). Following the Board's approval, staff submitted the 2021— 2023 STIF Plan to ODOT. Throughout the month of March, ODOT staff has been reviewing the submitted plan and communicating with CET and Deschutes County staff about potential revisions. ODOT staff have requested that Deschutes County add a new "Project" within the STIF plan to account for the unspent funds from the previous STIF cycle. Previous guidance from ODOT was that those funds were simply rolled -over, however ODOT thought it would best to account for those funds in a stated project within the Plan. Specifically, this refers to Project 8 Program Reserve Funds from 2019 - 2021 cycle in the amount of $2,644,002.00. In the attached staff report from the Board's January meeting, carryover from the 2019-2021 cycle was estimated at $3.9 million. Cascade East Transit now expects to spend more than $1.3 million of thnca rnminvar fimrk hafnra Italy 1. whirh is why the Proiect 8 Proaram Reserve amount has been updated. Staff is seeking Board approval on the addition of Project 8 to the FY 2021-23 STIF plan. Following this update, the STIF plan will be reviewed by Oregon's Public Transportation Advisory Committee (PTAC) and the Oregon Transit Association (OTA). To: Deschutes County Board of Commissioners From: Whitney Hale, Communications Director Derek Hofbauer COIC Outreach and Engagement Administrator Date: January 14, 2021 Subject: Statewide Transportation Improvement Fund (STIF) Recommendations for 2021-2023 Grant Cycle BACKGROUND State legislation passed during the 2017 session created a new funding mechanism called the Statewide Transportation Improvement Fund (STIF) which was designed to expand public transportation service in Oregon. Rules governing how these funds may be distributed and administered were adopted by the Oregon Transportation Commission (OTC). STIF rules require that Deschutes County, as a Qualified Entity (QE) conduct a public process to develop and select eligible projects for funding. ODOT defines a QE as a county that does not have a Mass Transit District or Transportation District, a Mass Transit District, a Transportation District or an Indian Tribe. In 2019, the Board of Commissioners entered into an intergovernmental agreement with the Central Oregon Intergovernmental Council (COIC) to administer this process. The Board also appointed a STIF Advisory Committee (STIFAC) and adopted governing by-laws for the group as required by the rules. A list of STIF Advisory Committee Members is included in the Board's packet. FUNDING Funding for the STIF program was established through HB 2017 passed by the Oregon Legislature in 2017. The legislation enacted a .001 %, or $1 per $1,000, payroll tax on the wages of employees working in Oregon. The tax is collected by the Oregon Department of Revenue and distributed back to the communities in which it was collected. In the 2019-2021 funding cycle, STIF funds were directed toward improving or expanding service. However, STIF funds may now be used to maintain or continue systems and services. During the 2020 Special Legislative Session, the legislature passed SB 1601, which allows STIF funds to be used to preserve transportation services as of July 7, 2020. This amendment to allow for preservation of service is intended to help address the negative fiscal impacts of the COVID-19 pandemic on transit providers During the 2019-21 funding cycle, Deschutes County entered into a sub recipient agreement with COIC/Cascade East Transit for a maximum amount not to exceed STIF payments received from the State of Oregon during the biennium. At the end of the 2019-2021 biennium, COIC expects to have $3.9 million in unspent STIF funding remaining. These funds will roll to the 2021-2023 biennium and are included in CET's 2021-2023 total project costs. ODOT's current projections of estimated STIF revenue for the 2021-2023 biennium are $3,580,322 in FY 2022 and $3,772,946 in FY 2023 for a total of $7,353,268. FUNDING OVERVIEW Estimated Carryover from '19-21 * $3,900,000 Interest Accrued to Date $75,847 PrninrfoH Po\/Pni is fnr'77 an $7353.26P) Total Estimated Funding Available $11,329,115 *Must remain with COIC/Cascade East Transit Total Project Requests for2021-2023 Biennium: $9,868,000 Funds that are not expended in the current biennium will be used for future projects. PROJECT SOLICITATION CYCLE Deschutes County staff sent out a STIF project solicitation notice in November. Provider applications were submitted by COIC/Cascades East Transit and Pacific Crest Bus Lines. Representatives from COIC/Cascade East Transit and Pacific Crest Bus lines will attend the Board's meeting on January 20 to provide an overview of their proposed projects. PROPOSED STIF PROJECTS AND STIFAC RECOMMENDATION The Deschutes County STIF Advisory Committee (STIFAC) met on December 8, 2020 and January 7, 2021 to review and prioritize $9,868,000 in proposed STIF projects. The STIFAC recommended that the BOCC fund all proposed projects. All ranked projects are included in the recommendation being presented to the Board for consideration. The ranked project list is included below and complete project applications are included in the Board's packet.. Advisory STIF Plan Committee Applicant STIF Project Description Project # Project Cost Ranking 1 Cascades East Continued Service Operations 1 $4,000,000 Transit 2 Cascades East Mobility Hub Purchase and 3 $2,000,000 Transit Match Funds 3 Cascades East STIF Administration, Support, 2 $1,500,000 Transit and Marketing 4 Cascades East CET Local Match Funds 4 $1,000,000 Transit 5 Cascades East Fare Revenue Recovery Fund 6 $750,000 Transit 6 r- cCco Ann- GOct LCAJI-CAUI--J LUJL r-nmmi iniratinnc nnrl — I it I IUI II U IVI — 5 $100,000 Transit Outreach 7 Pacific Crest Bus Bend to Klamath Falls Bus 7 $518,000 Lines Service Total Cost j $9,868,000* *Estimated remaining 2019-2021 biennium funds are included in the 2021-2023 total project costs 2021-2023 STIF PROJECT SUMMARIES Project #1 CET Continued Service Operations: $4 Million Task #1 - Continued Service Operations Fixed Route (represents 3/4 of Project #1 costs) • RT 24, 29, and 30 Saturday Service • Additional weekday trips RT 22, 24, 26 and 24/26 interlined • Increased frequency along Bend's transit corridors (RT 1, 3, 4, 7) • Additional transit coverage in northeast and southeast Bend (RT 8, 9) • RT 31 La Pine to Sunriver summer service 3 • Additional security services at Hawthorne Station Task #2 - CET Continued Service Operations Demand Response (represents 1 /4 of Project #1 costs) • Sisters Shopping Shuttle • City of Redmond deviated flex -route transit service Project #2 CET STIF Administration. Support. and Marketing: $1.5 Million • Task #1 - This project will allow all activities related to STIF to continue without interruption. Examples include STIF supervision, management and oversight, STIF quarterly reporting, STIF committee creation, STIF by-law adherence, STIF outreach and promotion. Project #3 CET Mobility Hub Purchase and Match Funds: $2 Million • CET, in conjunction with support from the City of Bend, Bend MPO, community members, and the Hawthorne Station Neighbors Group would like to secure property for the City's first Mobility Hub. Project #4 - CET Local Match Funds $1 Million Task #1 - CET Local Match funds for future grant applications, which may include vehicle purchases, technology grants, planning studies, equipment purchases, facilities, and ADA compliant bus stops Project #5 - CET Communications and Outreach: $100,000 • Task #1 - These resources will be used to promote new services that were not implemented in the 2019-2021 cycle, as well as continued services of our operations. Examples include: maps, brochures, surveys, radio advertisements, flyers, social media posts, face-to-face meetings with cities, counties, employers, and human service agencies. Project #6 - Fare Revenue Recovery Fund: $750,000 • Task #1 - This project is to secure funds for lost fare revenue within Deschutes County due to COVID-19 and the anticipated need to be fare -less for 2021, as well as support individuals who may not be able to afford transit fares, particularly our low-income community. Project #7: Pacific Crest Bus Lines Hwy 97 Connector - Bend to Klamath Falls: $518,000 • Provide daily bus service between Bend and Klamath Falls, serving Chiloquin, Beaver Marsh, Chemult, Crescent and Gilchrist, which currently have little to no access to transportation options, while improving service access to La Pine, Bend and Klamath Falls to and from these areas. Accessibility, mobility to services, medical appointments, shopping, socializing, and additional transportation hubs for the substantial low income and vulnerable populations of these areas is to be provided by this service. Interlining connections with Amtrak, Oregon POINT, Eugene -Bend bus and connections to Greyhound on the 1-5 corridor will be provided from the Highway 97 corridor, giving greater access to rural Oregonians. Total 2021-2023 STIF Project Costs = $9,868,000 RECOMMENDATIONS Sufficient funds are available to fund all applications, with a balance remaining that would used to fund projects during future bienniums. The Board of Commissioners is being asked to review the STIFAC's recommendations for project funding. Staff recommends that the Board approve the STIFAC's recommendations for project funding and approve the STIF Plan for 2021-23. NEXT STEPS Once the Board approves projects for the 2021-2023 biennium, staff will prepare and submit an application for funding to ODOT by or before the February 1, 2021 deadline. ODOT anticipates reviewing the application during the next several months with a goal of awarding funds by approving proposed STIF plans by May of 2021. 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BACKGROUND AND POLICY IMPLICATIONS: The Deschutes County Stabilization Center (DCSC) is a collaborative effort between Deschutes County Health Services and the Deschutes County Sheriff's Office to develop a 24/7 vr;oi.ci ctabili-7antinn rentor With 23-hni it rrpgpite anti cnhpr gtq inn, DCSC serves children and adults who are in need of short-term, mental health crisis assessment and stabilization but do not require the medical capabilities of an acute care hospital or longer -term residential care. The DCSC welcomes individuals to walk in when they are experiencing a mental health crisis or they can be referred by local law enforcement and other community partners. We would like to present the most recent data from the first ten months of operations and six months of operating 24/7. ATTENDANCE: Holly Harris, Crisis Services Program Manager re$ 75 50 25 C 54% are Male 45% are Female 1% Other/Did Not Disclose Deschutes Crook Jefferson Other pMM of DCSC clients experience homelessness ; 0 im Brought in by The number of crisis evaluations Law Enforcement 0/0 Reductions and Have a psychotic disorder mt Savings • 8% reduction in Emergency Department (ED) visits from Law Enforcement to St. Charles Medical Center since opening. • DCSC averages 30 ED diversions/month. Saving approx. $431,280-$815,040 per year. Crisis evaluations since being open 24/7. When are clients arriving to `�"�t 3PM-11:59PM i, A a t THE AGENDA REQUEST & STAFF REPORT For Board of Commissioners BOCC Wednesday Meeting of April 28, 2021 DATE: April 20, 2021 FROM: Barrett Flesh, Health Services, TITLE OF AGENDA ITEM: Consideration of Approval to Submit Nesting Scholarships Grant Application RECOMMENDATION & ACTION REQUESTED: Staff request approval to apply for Postpartum Support International grant funds. BACKGROUND AND POLICY IMPLICATIONS: Deschutes County Health Services' Adult Outpatient Integrated Care Team is requesting approval to apply for a grant through Postpartum Support International (PSI) (www.postpa rtu m. net). PSI is an international organization offering services to clinicians and parents to support women in pregnancy and families with postpartum issues. The Perinatal Mental Health (PMH) team within the Adult Outpatient Integrated Care Team works closely with the Public Health Service Area and community partners to screen, refer and serve pregnant and post-partum parents who are experiencing mental health issues. Several of our staff have taken specialty trainings through PSI. PSI has a program for grants up to $10,000 for health organizations serving the perinatal mental health population. We have chosen the housing related portion of the grant for application. The funds will be used for a project called "Nesting Scholarships." The goal of the project would be to assist with housing for any client that meets the PMH criteria (families/parents that are either pregnant and/or have a child up to 1 year old and are experiencing mental health issues). If we are granted the entire $10,000, we plan to have "scholarships" for up to $2,000 per family to assist with these priority areas: 1. Obtaining housing (pay deposits, moving costs, first month's rent) 2. Maintaining housing - help to pay rent or utility costs for families impacted by job loss, unemployment, or mothers being on unpaid maternity leave 3. Furnishing - helping families to furnish a new home, or to buy needed items for infants/young children (i.e., cribs, rocking chairs, high chairs, etc.) Parents being able to form a home nest for their families enhances attachment with their children. When we provide services to the PMH population or any family system, attachment is a primary concern for children as it relates to their future relational abilities and how they handle experiences they encounter when growing up. Helping families establish and maintain stable housing greatly enhances the mental health of the children and the parents. Applications for this grant are due May 1, 2021 and recipients are notified byjune 1, 2021, if they are approved. If awarded the funds, a detailed budget will be submitted at that time. FISCAL IMPLICATIONS: These funds are not included in Health Services budget at this time. The amount of the grant received (up to $10,000) will be accepted and tracked within a new cost center. The Adult Outpatient Integrated Care Team will be responsible for this grant. Barrett F!ri L Manager, .,, . A %1;cI.' Dom. -4;7 ^1 Ci im nr%Ae r %A411 nworcoo tho grant esl1, MaI ageI, aIlU Vllni uUUUiiJUt, aUNci Vio I VVIn vV.'�.- "'-b.....". ATTENDANCE: Barrett Flesh, Outpatient Complex Care Services Program Manager - via Zoom E S CMG Z ®" 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 April 28, 2021 DATE: April 22, 2021 FROM: Barrett Flesh, Health Services, TITLE OF AGENDA ITEM: Consideration of Application for Measure 110 Harm Reduction Grant RECOMMENDATION & ACTION REQUESTED: Staff request approval to apply for a Measure 110 Harm Reduction Grant. BACKGROUND AND POLICY IMPLICATIONS: The Oregon Health Authority has just announced that the Measure 110 Request for Grant Proposal (RFGP) is now open, and the deadline for applying is May 3, 2021. Deschutes County Health Services (DCHS) is requesting approval to apply for these grant funds in the amount of $367,950.00. If awarded, the funds will be used to: • Expand harm reduction services --syringe exchange, naloxone distribution and viral testing --to people who are fragilely housed or completely unhoused and cannot access regularly scheduled outreach events. • Pilot a Hepatitis C testing program specifically for this population and for others who access DCHS' harm reduction services. Collect data to design a Hepatitis C outreach treatment program for people identified as Hepatitis C positive who cannot access traditional treatment facilities. Provide peer support services, outreach and engagement, and client supports for temporary housing, transportation and basic needs to increase engagement and connect with Naloxone training and treatment resources. The project will contract with a direct service worker (Health Educator II equivalent) for six months to help with testing and reporting at all Syringe Exchange Program sites. In addition, a Behavioral Health Opioid Peer Support Specialist will continue to coordinate efforts with the Syringe Exchange program to distribute Naloxone, provide basic needs supports, and increase outreach to injectors for engagement in treatment. The remainder of the funds will be used to purchase an outreach vehicle, Hepatitis C rapid tests, and harm reduction and basic needs supplies. The long-term goals are to use the data collected in 2021 to propel an ongoing, sustainable Hepatitis C testing and treatment program for high -risk patients through a field outreach program, and to increase engagement in treatment services via harm reduction strategies. This project aligns with DCHS Strategic plan goal: Identify and develop harm reduction and prevention strategies for at risk populations to reduce substance abuse and communicable disease transmission (e.g., syringe exchange). Harm reduction (including syringe exchange) is an evidence based model that reduces injury and death from viral transmission, bacterial infections, and overdose. FISCAL IMPLICATIONS: If awarded, the funds will be used as follows: Temporary help -one direct service worker (Health Educator II classification) for six months Purchase one outreach vehicle Purchase harm reduction supplies Purchase Hepatitis C rapid tests Purchase Naloxone (1,000 units) Purchase client supports (e.g., housing and transportation vouchers, tents, sleeping bags, hygiene supplies, etc.) Indirect (10% de minimis) TOTAL $ 50,000.00 50,000.00 50,000.00 50,000.00 104,500.00 30,000.00 33,450.00 $367,950.00 ATTENDANCE: Laurie Hubbard, Communicable Disease Prevention Coordinator; Barrett Flesh, Outpatient Complex Care Services Program Manager -- Via Zoom I E S CpGZ Qj o Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners BOCC Wednesday Meeting of April 28, 2021 DATE: April 22, 2021 FROM: Cynthia Smidt, Community Development, 541-317-3150 TITLE OF AGENDA ITEM: Review and Consideration of Board Signature of Document No. 2021-308, an Approval of a Conditional Use Permit and Site Plan Review for a Private Campground at 64061 N Highway 97 BACKGROUND AND POLICY IMPLICATIONS: The Board deliberated on this matter on March 24, 2021 and instructed staff to draft an approval in response to the appeal of a Hearings Officer Decision denying the conditional use permit and site plan review for the private campground. The decision is now presented to the Board for review and consideration of signature. See attached staff memorandum for additional information FISCAL IMPLICATIONS: None ATTENDANCE: Cynthia Smidt, Associate Planner MEMORANDUM TO: Board of County Commissioners FROM: Cynthia Smidt, Associate Planner DATE: April 22, 2021 RE: Decision; Conditional Use and Site Plan review for a Campground (file 247-20-000206-A)' The Board of County Commissioners (Board) will review a final written decision on April 28, 2021 for an appeal of a Deschutes County Hearings Officer's decision denying a request for Conditional Use and Site Plan review for a private campground. I. BACKGROUND Erik Huffman with BECON Civil Engineering and Land Surveying, on behalf of the property owner, Shawn Kormondy, submitted a request for a Conditional Use and Site Plan review for a private campground. The 9.53-acre subject property is located at 64061 N. Highway 97. The proposal is for a 15-site private campground with ten sites for tents, campers or trailers, and five for yurts. All 15 spaces are for overnight use. None of the campsites provides utility hook-ups, however. The campground identified two flush toilets, shower facility, lavatory, potable water supply, parking spaces at each campsite, access road, outdoor amenity and recreational use (e.g. natural canyon and trails), yurts, enclosed trash area, and communal area with gazebo. The existing residence is proposed for a camp caretaker or proprietor residence. No intensely developed recreational or commercial uses or activities such as swimming pools, tennis courts, retail stores, roadside stands, or gas stations associated with the campground use are proposed. The zoning of the property is Multiple Use Agricultural (MUA-10) and Landscape Management (LM) Combining Zone. On March 24, 2021, the Board deliberated on this matter and instructed staff to draft an approval in response to the appeal of a Hearings Officer Decision denying the conditional use permit and site plan review for the private campground, and the third modification that addressed showers, wastewater, and water availability.2 The decision is now presented to the Board for consideration of signature. Associated file numbers include the following: 247-19-000361-CU, 247-19-000362-SP, 247-19-000363-LM, 247- 19-000583-MA, 247-19-000879-MA, and 247-20-000788-MA. 2 March 24, 2021 Board Meeting: https://deschutescountyor.iqm2.com/Citizens/Detail Meeting aspx?ID=2686 11 7 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708 6005 Q� (541) 388-6575 @ cdd@deschutes .org @ www.deschutes.org/cd II. REQUIRED ACTIONS With a verbal decision affirmed on March 24, 2021, the Board can now review the final written decision for any subsequent edits and formal approval. Staff requests subsequent clarification of the following sections of the decision, which are noted with the page number of the attached draft written decision. 1. DCC 22 20 015 Code Enforcement and Land Use. Cramer Farms raised several arguments regarding noncompliance with applicable land use regulations. During the Board's deliberations, the issues were not discussed. Nevertheless, the Applicant provided findings for the Board to consider when addressing these arguments. Staff seeks clarification regarding the validity of said alleged violations and whether the Board decision cures such violations. Page 4. The two issues addressed in the findings include: Whether the utility shed located along the southern boundary must be relocated within the campground development area. • Whether short-term use of recreational trailer or recreational vehicle violates the DCC. 2. DCC 18.120.020, Nonconforming Lot Sizes. Cramer Farms argues that the proposal must be denied under this provision because the property is under 10 acres and is proposing more than just a single dwelling unit.3 Staff notes Cramer Farms' argument references the Board's decision under Three Sisters Irrigation District (file 247-20-000191-CU for a hydroelectric project). Staff seeks clarification regarding this section of the draft written decision. Page 8 3. DCC 18116.030(F)(1). Off Street Parking Development and Maintenance Standards. The Applicant's proposed findings for the Board make an interpretation of the term "parking area", which is not defined in DCC 18.04. During the Board's deliberations, this interpretation was not determined. Staff seeks clarification regarding this section of the draft written decision. Page 7 4. DCC 18.116.030(G), Off -Street Parking Lot Design. The Applicant's proposed findings for the Board makes an interpretation of the term "parking lot", which is not defined in DCC 18.04, and parking stall dimensional requirements. During the Board's deliberations, the interpretation was not determined and thus staff is seeking clarification regarding this section of the draft written decision. Page 8 DCC 18.124.060(D), Site Plan Approval Criteria. Staff is seeking clarification regarding the Applicant's proposed findings addressing ADA compliance. Page 10 3 In comments submitted on February 10, L. Fancher (Cramer Farms) states, We disagree with [Central Oregon LandWatch's] argument and hope the Board will reject it. If the Board, however, finds in favor of COLW's position in the hydro project appeal, it should apply the some interpretation of its code to this application and deny the application. 247-20-000206-A and 247-20-000788-MA Page 2 of 4 6. DCC 18.128.015(B), General Standards Governing Conditional Uses. To minimize impacts to surrounding properties, the Applicant states that no large group campouts are permitted, and all planned or unplanned events for those not on the guest register are prohibited. The Hearings Officer recommended this be made a condition of approval. During the Board's deliberations, this issue was not discussed. Staff seeks clarification regarding what is considered a large group or an event. Page 14 In addition, Cramer Farms raised the argument of not permitting dogs in the campground. The Applicant proposed findings for the Board to consider when addressing this argument. Page 15 7. DCC 18.128.320(A), Campground Outdoor Recreation. Campgrounds shall provide patrons outdoor recreation opportunities. With a thorough review of the proposed outdoor recreation, which includes a trail system to an on -site natural canyon and the communal area, the Hearings Officer states, "[T]he record supports a determination that the proposed campground will provide patrons with opportunities for outdoor recreation." The Applicant's proposed finding for the Board include an additional interpretation that was not discussed during deliberations. Page 15 8. DCC 18128.320(C) Campground Water Supply and Sewage Disposal. Based on the modification that provided additional water supply and sewage disposal information, the Board found that the maximum occupancy for the campground shall be 50 persons per day. The Applicant agreed to a maximum occupancy of four people per campsite. During the Board's deliberations, this issue was not discussed. Staff seeks confirmatinn from the Board to include a campsite occupancy condition of approval. Page 16 9. DCC 18.128.320(D)(6) and (D)(10)(d), Campground Trespass and Screening. The Board's findings include required fencing on the subject property in order to prevent trespass and provide screening4. Staff is requesting confirmation on the fencing that is required. Page 19 10. DCC 18.128.320(D)(9), Campground Vegetation Retention. Staff is seeks clarification regarding the Applicant's proposed finding for the Board regarding the retention of existing vegetation. During the Board's deliberations, this specific section of DCC was not discussed. Page 19 11.OAR 918-650-0025(1)(H), State Building Code. The Applicant proposed findings for the Board that includes a statement regarding compliance with state building codes. Staff seeks clarification regarding this statement. Page 23 IV. 150-DAY LAND USE CLOCK On November 30, 2020, the Board accepted review of the proposal (Board Order 2020-014), which included the November 23, 2020 submission of the third Modification of Application. Pursuant to DCC 22.20.055(B), a modification of an application restarts the 150-day land use clock. Based on Board 4 The Board findings regarding fencing are primarily found in DCC 18.128.320(D)(6) and (10)(d) but can also be found in DCC 18.124.060(A) and (C) and DCC 18.128.015(B). 247-20-000206-A and 247-20-000788-MA Page 3 of 4 Order 2020-014, this third modification of application restarts the 150-day land use review clock for the overall proposal. The 150th day on which the County must take final action on this application is May 6, 2021.5 Attachments: 1. 2021-04-28 BCC Findings and Decision, Doc 2021-308 2. 2021-04-28 BCC Findings and Decision, Doc 2021-308 Exhibit Hearings Officer's Decision 5 In the March 24, 2021 deliberations memorandum and Board meeting, staff incorrectly stated that 150th day to take final action was April 22, 2021. 247-20-000206-A and 247-20-000788-MA Page 4 of 4 REVIEWED LEGAL COUNSEL DECISION OF THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS FILE NUMBERS: 247-19-000361-CU, 247-19-000362-SP, 247-19-000363-LM, 247- 19-000583-MA, 247-19-000879-MA, 247-20-000206-A, and 247- 20-000788-MA APPLICANT Erik Huffman, BECON Civil Engineering and Land Surveying APPELLANT'/OWNER: Shawn Kormondy IRA APPLICANT'S Garrett Chrostek, ATTORNEY: Bryant, Lovlien and Jarvis, P.C. CTACC DMIMA/CD• rxinthin Smidt Associate Planner .JIMFU LOCATION: 64061 N. Highway 97 Bend, Oregon 97701, further identified as Map 17-12-04, Tax Lot 800 HEARINGS OFFICER'S DECISION ISSUED: February 26, 2020 APPEAL FILED: March 9, 2020 HEARING DATE: February 3, 2021 RECORD CLOSED: February 17, 2021 ' The Board notes that Erik Huffman and BECON Civil Engineering and Land Surveying, acting on behalf of the owner, Shawn Kormondy, was the stated applicant for the conditional use permit, site plan review, landscape management review, and the three modifications. Shawn Kormondy was the stated applicant for the subject appeal. For the purposes of this decision, the Board refers to Mr. Kormondy, together with the team that represents him, as the "Applicant" 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 1 of 33 I. SUMMARY OF DECISION: In this decision, the Board of County Commissioners ("Board") considered a modified conditional use, site plan, and landscape management application for a private campground in the first instance. The application comes to the Board following an appeal of the Hearings Officer's findings and decision in File Nos. 247-19-000361-CU, 247-19-000362-SP, 247-19-000363-LM, 247-19-000583- MA, and 247-19-000879-MA ("Hearings Officer's Decision"), which denied the proposal. The Board exercised its discretion to hear the appeal de novo. Following acceptance of the appeal, the application was further modified, File No. 247-20-000788-MA. This modification effectively converted the appeal into an initial review of the modified application. The Board received five memoranda/submittals from Cynthia Smidt, Associate Planner. The following lists the memoranda by date: • November 24, 2020, Consideration on whether to hear the appeal • January 20, 2021, Briefing memo in advance of the hearing • February 3, 2021, Public Hearing staff presentation • March 24, 2021, Deliberation staff presentation and decision matrix • April 21, 2021, Written decision briefing memo The Board conducted a public hearing on February 3, 2021, deliberated on March 24, 2021, and reconvened on April 21, 2021 to consider a draft written decision. The Board ultimately voted 3-0 to adopt this written decision, which approves the modified application subject to conditions of u NNr o��ia i. In sum, the Board broadly concurs with the Hearings Officer's findings but concludes that the modified application sufficiently addresses the bases for denial in the Hearings Officer's Decision. All applicable criteria for approval have been or could be met with the conditions imposed by this decision and there is substantial evidence upon which to base the Board's findings for approval. II. APPLICABLE STANDARDS AND CRITERIA: Title 22, Deschutes County Development Procedures Ordinance Chapter 22.20, Review of Land Use Applications Title 18, Deschutes County Zoning Ordinance Chapter 18.32, Multiple Use Agricultural Zone Chapter 18.84, Landscape Management Combining Zone Chapter 18.116, Supplementary Provisions Chapter 18.124, Site Plan Review Chapter 18.128, Conditional Uses Title 15, Deschutes County Buildings and Construction Ordinance Chapter 15.08, Signs 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 2 of 33 Oregon Administrative Rules Chapter 333, Division 31, Operating Recreation Park Chapter 333, Division 61, Drinking Water Chapter 918, Division 650, Recreation Parks and Organizational Camps 111111. BASIC FINDINGS: The Board adopts and incorporates by reference the code interpretations, findings of fact, and conclusions of law set forth in the Hearings Officer's Decision, Exhibit "A" of this decision, in Section II Basic Findings (Location, Lot of Record, Zoning, Site Description, Surrounding Land Uses, Land Use History, Proposal, Public Agency Comments, Public Comments, Notice Requirement, Review Period, and Review History) with the following additions to the "Review History Section": On February 26, 2020, the Hearings Officer's Decision was issued. On March 9, 2020, the Applicant timely filed a complete application for an appeal of the Hearings Officer's Decision. The notice of appeal expressed an intent to file a modification of application if the appeal were accepted. On November 30, 2020, the Board issued order No. 2020-14 accepting the appeal. Acceptance of the appeal thus re -opened the record and allowed for acceptance of the submitted third mndifiratinn of application, which in turn reset the 150-dav clock, beginning on November 23, 2020. On February 3, 2021, the Board conducted a public hearing on the modified application. Upon conclusion of the oral testimony, and at the request of the Applicant, the Board elected to leave the written record open for 7 days for any additional evidence or testimony, 7 days for rebuttal evidence and testimony, and 7 days for final argument from the Applicant. On February 9, 2021, after notice was provided, Commissioners Adair and Chang conducted a site visit. The Commissioners were accompanied on the site visit by Cynthia Smidt and Anthony Raguine from the Planning Division, the Applicant, and Aaron Lafky of Cramer Farms LLC ("Cramer Farms"), the owner of the property to the south of the subject property. On February 10, 2021, Commissioner Adair filed a site visit report. Commissioner Chang did not file a site visit report, but disclosed his participation on the site visit to all those present at the noticed site visit as well as part of the deliberations. Commissioner Chang had no corrections or additions to the site visit report submitted by Commissioner Adair. On March 24, 2021, following close of the record, the Board conducted deliberations and directed staff to prepare a draft decision consistent with those deliberations. On April 28, 2021, the Board reconvened to consider and adopt this written decision. 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 3 of 33 IV. FINDINGS: The Board adopts and incorporates by reference the code interpretations, findings of fact, and conclusions of law set forth in the Hearings Officer's Decision in the Findings section, except for the findings relating to the Deschutes County Code (DCC) Sections identified below or that otherwise conflict with an approval. Where a specific section of the DCC addressed in the Hearings Officer's Decision is not expressly addressed in this decision, the Board intends to signify that the modified site plan does not materially change the finding and such finding is adopted in light of the modified site plan. To the extent there are conflicts between any of the findings in the Hearings Officer's Decision and the findings below, the findings and conclusions below shall control. Any issues raised by the parties to these proceedings that is not expressly addressed in this decision or in the Hearings Officer's Decision were either insufficient to overcome conflicting evidence, insufficiently developed to allow for review, or not applicable to the approval criteria. TITLE 22, DESCHUTES COUNTY DEVELOPMENT PROCEDURES ORDINANCE Chapter 22.20, Review of Land Use Applications Section 22.20.015. Code Enforcement and Land Use. A. Except as described in (D) below, if any property is in violation of applicable land use regulations, and/or the conditions of approval of any previous land use decisio►2s or building permits previously issued by the County; the County shall not. 1. Approve any application for land use development, 2. Make any other land use decision, including land divisions and/or property line adjustments, 3. Issue a building permit. FINDING: Cramer Farms raised assorted arguments suggesting that the subject property is not compliant with applicable land use regulations. More specific arguments were raised regarding a shed purportedly used as a music room and use of a recreational trailer as a residence. The Applicant clarified that the structure is only used as a utility shed and that he did not further pursue a building permit to connect the shed to electricity. There do not appear to be any violations of applicable codes with respect to the shed or at least there is insufficient evidence in the record to make a finding of a violation as part of these proceedings. However, the Applicant agreed to relocate the shed within the developable area (as further described below). The Board finds this appropriate and relocation of a utility shed within the developable area will not create any non-compliance with any applicable approval criteria for the proposed campground as it designed in muted earth tones and sufficient screening is provided regardless of where it may be relocated. The allegations of residential use of a recreational trailer conflict with testimony from the Applicant that the trailer was only used on a temporary basis by visitors to the property. The Board does not find that short term use (less than 30 days) of a recreational trailer or recreational vehicle violates the DCC. Longer term stays are only allowed for the specific purposes outlined in the DCC and are 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 4 of 33 subject to permitting. In any event, the residential trailer at issue is not presently located on the property and thus could not be the basis for a violation. The other alleged actions or wrongdoings asserted against the property and/or the Applicant are either unrelated to applicable land use regulations and/or the conditions of approval of any previous land use decisions or building permits previously issued by the County, too insufficiently developed to allow review, or not supported by substantial evidence in the record. Section 22 20 055. Modification of Application. A. An applicant may modify an application at any time during the approval process up until the close of the record, subject to the provisions of DCC 22.20.052 and DCC 22.20.055. FINDING: The Applicant requested to modify the application to respond to the Hearings Officer's Decision if the Board agreed to hear the appeal. As identified above, the Board's decision to hear the appeal de novo effectively re -opened the record and allowed for acceptance of the third modification of application. This criterion is met. B. The Planning Director or Hearings Body shall not consider any evidence submitted by or on behalf of an applicant that would constitute modification of an application (as that term is defined in DCC 22.04) unless the applicant submits an application for a modification, pays all required modification fees and agrees in writing to restart the 150-day time clock as of the date the modification is submitted. The 150- day time clock for an application, as modified, may be restarted as many times as there are modifications. FINDING: The Applicant submitted a third requested modification (file no. 247-20-000788-MA) to ensure the Board could consider additional submittals addressing the bases for denial in the Hearings Officer's Decision. The Applicant paid all required modification fees and agreed in writing to restart the 150-day time clock as of the date the modification was submitted. This criterion is met. C. The Planning Director or Hearings Body may require that the application be re - noticed and additional hearings be held. FINDING: Notice of the third modification of application was provided to adjacent property owners and parties to the proceedings before the Board. A hearing before the Board was held on February 3, 2021. D. Up until the day a hearing is opened for receipt of oral testimony, the Planning Director shall have sole authority to determine whether an applicant's submittal constitutes a modification. After such time, the Hearings Body shall make such determinations. The Planning Director or Hearings Body's determination on whether a submittal constitutes a modification shall be appealable only to LUBA and shall be appealable only after a final decision is entered by the County on an application. 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 5 of 33 FINDING: The Board acknowledges the Planning Director's authority to determine that a change to the proposal such as adding showers, or any other alteration that may or may not have resulted from the Hearings Officer's decision, rises to the level of a Modification of Application as defined in DCC 22.04.020. The Applicant submitted the requisite modification of application. TITLE 18, DESCHUTES COUNTY ZONING ORDINANCE Chapter 18.32, Multiple Use Agricultural Zone - MUA Section 18.32.030. Conditional Uses Permitted. The following uses may be allowed subject to DCC 18.128. L Private parks, playgrounds, hunting and fishing preserves, campgrounds, motorcycle tracks and other recreational uses. FINDING: The Board concurs with the findings of the Hearings Officer under this section. In the proceedings before the Board, Cramer Farms argued that the proposal falls within the definition of "recreational vehicle ("RV") park" in DCC 18.04 and is therefore subject to the requirements of DCC 18.128.170. The Board disagrees. In the Board's interpretation, the County Code clearly delineates two different uses given the separate definitions and separate development requirements for the tv o uses. Spec,f,cally, the proposa! includes features that are either not per mated i^ RV parks, such as yurts, and intentionally does not include other features required of an RV park such as hook ups for water, sewer, and electricity and more developed amenities such as clothes washing facilities. The determination of which use is proposed must be considered in that context. In any event, the Board does not find that the proposed campground was "intended, designed, or [will be] utilized" primarily by RVs. A third of the proposed spaces are designed for yurts and the remainder of the sites are, in general, equally amenable for either tent or RV uses. In other words, there are no particular elements of the design reasonably calculated to encourage, or discourage, one form of camping over the other. There may be times when RV usage coincidentally exceeds the aggregate of yurt use and tent use based on the preferences of a particular cohort of guests, but the mere possibility of such an event does not render the proposal an RV park and the record does not support a conclusion that this scenario will occur more often than not. Section 18.32.050. Yards. A. The front yard setback from the property line shall be a minimum of 20 feet for property fronting on a local street right of way, 30 feet from a property line fronting on a collector right of way, and 80 feet from an arterial right of way unless other provisions for combining accesses are provided and approved by the County. FINDING: The Board concurs with the findings of the Hearings Officer except to note that the proposed bathroom/shower facility complies with applicable setbacks as discussed below. 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 6 of 33 Chapter 18.84, Landscape Management Combining Zone - LM Section 18 84 080. Design Review Standards. C. No large areas, including roofs, shall be finished with white, bright or reflective materials. Metal roofing material is permitted if it is in non -reflective and of a color which blends with the surrounding vegetation and landscape. This subsection shall not apply to attached additions to structures lawfully in existence on April 8, 1992, unless substantial improvement to the roof of the existing structure occurs. FINDING: The Board agrees with the findings of the Hearings Officer other than to note that bathroom/shower facility is included as part of the modified proposal and could be designed to meet this standard with the condition of approval proposed by the Hearings Officer. Chapter 18.116, Supplementary Provisions Section 18 116 030 Off Street Parking and Loading. F. Development and Maintenance Standards for Off -Street Parking Areas. Every parcel of land hereafter used as a public or private parking area, including commercial parking lots, shall be developed as follows: 1. Except for parking to serve residential uses, an off-street parking area for more than five vehicles shall be effectively screened by a sight obscuring fence when adjacent to residential uses, unless effectively screened or buffered by landscaping or structures. FINDING: The Board concurs with the Hearings Officer's findings that each campsite will have its own parking space and the applicant will retain native vegetation, including trees and shrubs that provide screening and buffering of the parking areas. Further, the Board notes that no parking area for more than five vehicles is proposed. The Board interprets "parking area", which is not defined in DCC 18.04, as an area with abutting parking spaces. No such area is proposed as part of this development. In any event, the Board finds that the with the screening required by this decision, the parking spaces are sufficiently screened or buffered by landscaping, terrain, and/or fencing and would continue to be so even with adjustments provided all parking spaces are contained within the developable area. G. Off -Street Parking Lot Design. All off-street parking lots shall be designed subject to County standards for stalls and aisles as set forth in the following drawings and table: 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 7 of 33 (SEE TABLE 1 AT END OF CHAPTER 18.116) 1. For one row of stalls use "C" + "D" as minimum bay width. 2. Public alley width may be included as part of dimension "D," but all parking stalls must be on private property, off the public right of way. 3. For estimating available parking area, use 300-325 square feet per vehicle for stall, aisle and access areas. 4. For large parking lots exceeding20 stalls, alternate rows may be designed for compact cars provided that the compact stalls do not exceed 30 percent of the total required stalls. A compact stall shall be eight feet in width and 17 feet in length with appropriate aisle width. FINDING: The Hearings Officer identified 20 feet as the typical applicable stall length based on the County standards for stalls and aisles set forth in Table 1. Cramer Farms argued before the Board that some of the proposed parking spaces were only 18 feet in depth, which is inconsistent with the 20-foot requirement identified by the Hearings Officer. The Board notes that this provision applies to "parking lots". "Parking lot" is not defined in DCC 18.04, but given the references to aisles and rows, the Board interprets the provision similar to "parking area", an area of multiple abutting parking spaces, which is not the case with this application. There is nothing in DCC Chapter 18.116 that establishes the dimensional requirements for a standalone parking space or a parking space for a particular campsite. As discussed in the findings for OAR 918-650-0055, the Board finds that the County standards for parking stalls could be achieved through minor adjustments to the design of the parking spaces. Provided that those adjustments occur within the developable area, those minor adjustments will not create significant additional impact on adjacent properties given the enhanced screening requirements of this ritzricinn, As noted below; the Applicant will be required to submit a revised site plan illustrating that all campsite parking spaces are consistent with this decision and in compliance with parking standards set forth in DCC 18.116.030(G) together with those provisions set forth in DCC 18.128.320(D)(1) and OAR 918-650-0055(1). Chapter 18.120, Exceptions 18.120.020. Nonconforming Lot Sizes. C. Any lot or parcel that is smaller than the minimum area required in any zone may be occupied by an allowed use in that zone provided that. 1. The lot or parcel is a lot of record, as defined in DCC 18.04.030, Lot of record. 2. The use conforms to all other requirements of that zone. 3. if there is an area deficiency, residential use shall be limited to a single dwelling unit. 4. All necessary permits are obtained. FINDING: Cramer Farms argues that the proposal must be denied under this provision because the property is under 10 acres and is proposing more than just a single dwelling unit. The Board finds that the subject property is not substandard under the definition of "lot area" in DCC Chapter 18.04, which applies "gross area" for lots 2.5 acres and larger. As required by the definition, gross area 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 8 of 33 must include areas that would accrue to the property from vacation of an abutting street. Adding the area from the centerline of Highway 97 along the entire frontage of the subject parcel yields a gross area that is substantially larger than 10 acres. In any event, Cramer Farms misinterprets this provision. Subsection (C)(3) does not limit a substandard parcel to only a single dwelling unit. It simply establishes that residential uses are limited to a single dwelling unit on substandard lots. Applicant is proposing a commercial use and there is nothing in this provision limiting commercial uses on a substandard parcel (other than compliance with otherwise applicable requirements of that zone/use) regardless of whether or not there is a dwelling on the substandard parcel. As discussed in more detail elsewhere in this decision, the subject property is a lot of record, the proposal (with conditions of approval) meets all other requirements of the applicable zones, and the development will be required to obtain all applicable permits prior to construction and/or initiating the use. Chapter 18.124, Site Plan Review Section 18.124.020. Elements of Site Plan. The elements of a site plan are: The layout and design of all existing and proposed improvements, including, but not limited to, buildings, structures, parking, circulation areas, outdoor storage areas, bicycle parking, landscape areas, service and delivery areas, outdoor recreation areas, retaining walls, signs and graphics, cut and fill actions, accessways, pedestrian walkways, buffering and screening measures and street furniture. FINDING: The Board concurs with the Hearings Officer's findings but notes that the modified proposal includes a shower/bathroom facility and otherwise addresses the bases for denial identified by the Hearings Officer. All of the sinks, toilets, and showers will be connected to the septic system, which the supplemental analysis demonstrates is sufficient to support 50 persons per day at the campground. Section 18 124 060. Site Plan Approval Criteria. Approval of a site plan shall be based on the following criteria. A. The proposed development shall relate harmoniously to the natural environment and existing development, minimizing visual impacts and preserving natural features including views and topographical features. FINDING: The Board concurs with the Hearings Officer's findings but notes that the modified proposal includes a shower/bathroom facility and otherwise addresses the bases for denial identified by the Hearings Officer. The proposed shower/bathroom facility complies with the required setbacks and is appropriately integrated into the proposed development. Together with mitigation measures discussed in this decision, the modified site plan is arranged in a wayto achieve harmony with the natural environment and existing development in the area. The proposal, as conditioned by this decision, minimizes visual impacts and preserves natural features including 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 9 of 33 views and topographical features. Specifically, the Board is imposing fencing requirements to provide screening and prevent trespass to adjoining properties. The modified site plan's impacts create no more disharmony than other uses allowed by right or conditionally in the MUA Zone. C. The site plan shall be designed to provide a safe environment, while offering appropriate opportunities for privacy and transition from public to private spaces. FINDING: The Board concurs with the Hearings Officer's findings but notes that the modified proposal includes a shower/bathroom facility and otherwise addresses the bases for denial identified by the Hearings Officer. To avoid any confusion, the Board has specifically identified areas where additional solid fencing is required to provide privacy for adjacent residences in the conditions of approval. Cramer Farms also raised safety concerns about an existing irrigation ditch that runs through the property. The Applicant indicated that this ditch has been abandoned and would be filled in as part of development of the site. The Board finds this sufficient to address any safety concerns regarding the ditch. D. When appropriate, the site plan shall provide for the special needs of disabled persons, such as ramps for wheelchairs and Braille signs. FINDING: The Board concurs with the Hearings Officers findings but notes that the modified proposal includes a shower/bathroom facility and otherwise addresses the bases for denial identified by the Hearings Officer. This shower/bathroom facility is sited in the same general location as the bathrooms on the prior site plan and is intentionally proximate to the adjacent American with Disabilities Act (ADA) compliant yurt space. The specific ADA review of the shower/bathroom facility will be evaluated during the building permit review. Staff notes the modified site plan shows a floor plan that depicts spacing for wheelchair movements and the Applicant has otherwise stated the facility will be developed in compliance with the ADA. During the rebuttal period, Cramer Farms submitted materials suggesting that the modified proposal does not provide enough ADA compliant campsites based on an "ADA Quick Reference Guide" purportedly authored by the Oregon State Parks.' The excerpts from the reference guide are ambiguous as to legal authority (i.e. citations to statutes or administrative rules) and whether they are applicable to a private campground versus specific to campgrounds developed by Oregon State Parks. Accordingly, the Board finds it could reject this evidence for a number of reasons. However, the Board notes that this provision does not require that the hearings body determine that the proposal complies with the ADA or similar legal authority. This is because ADA compliance is a technical exercise typically evaluated as part of the building permit process when engineered plans are submitted for review. Rather, this provision requires that the application demonstrate consideration for the special needs of disabled persons. The Board finds that criterion is satisfied z The actual document was not submitted into the record. Rather, Cramer Farms included excerpts within its rebuttal submittal. 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 10 of 33 because the proposal includes accommodations for the disabled and commitment to provide an inclusive environment through compliance with the ADA. As identified above, the enhanced screening required by the Board under this decision will mitigate adjustments to the modified site plan within the developable area necessary to comply with the ADA if in fact additional measures are necessary to achieve compliance. G. Areas, structures and facilities for storage, machinery and equipment, services (mail, refuse, utility wires, and the like), loading and parking and similar accessory areas and structures shall be designed, located and buffered or screened to minimize adverse impacts on the site and neighboring properties. FINDING: The Board concurs with the Hearings Officer's findings but notes that the modified proposal includes a shower/bathroom facility and otherwise addresses the bases for denial identified by the Hearings Officer. The proposed shower/bathroom facility is designed with non - reflective materials and in a manner otherwise compatible with the site, neighboring properties, and the natural environment. As identified in this decision, with the enhanced screening required by this decision, all elements of the site supporting the campground are appropriately sited to minimize adverse impacts. K. Transportation access to the site shall be adequate for the use. 1. Where applicable, issues including, but not limited to, sight distance, turn and acceleration1deceleration lanes, right-of-way.. roadway surfacing and widening, and bicycle and pedestrian connections, shall be identified. 2. Mitigation for transportation -related impacts shall be required. 3. Mitigation shall meet applicable County standards in DCC 1&116.310, applicable Oregon Department of Transportation (ODOT) mobility and access standards, and applicable American Association of State Highway and Transportation Officials (AASHTO) standards. FINDING: The Board concurs with the Hearings Officer's findings but desires to address arguments raised before the Board. To the extent different from the transportation related arguments raised before the Hearings Officer, the Board notes that nothing presented to the Board provides cause to disregard the testimony and recommendations of the transportation experts or deviate from the conditions of approval recommended by the Hearings Officer. This criterion is satisfied. Section 18 124 070. Required Minimum Standards. C. Nonmotorized Access. 2. Pedestrian Access and Circulation: a. Internal pedestrian circulation shall be provided in new commercial, office and multi family residential developments through the 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 11 of 33 clustering of buildings, construction of hard surfaced walkways and similar techniques. b. Pedestrian walkways shall connect building entrances to one another and from building entrances to public streets and existing or planned transit facilities. On site walkways shall connect with walkways, sidewalks, bikeways, and other pedestrian or bicycle connections on adjacent properties planned or used for commercial, multi family, public or park use. C. Walkways shall be at least five feet in paved unobstructed width. Walkways which border parking spaces shall be at least seven feet wide unless concrete bumpers or curbing and landscaping or other similar improvements are provided which prevent parked vehicles from obstructing the walkway. Walkways shall be as direct as possible. d. Driveway crossings by walkways shall be minimized. Where the walkway system crosses driveways, parking areas and loading areas, the walkways must be clearly identifiable through the use of elevation changes, speed bumps, a different paving material or other similar method. e. To comply with the Americans with Disabilities Act, the primary building entrance and any walkway that connects a transit stop to building entrances shall have a maximum slope of five percent. Walkways up to eight percent slope are permitted, but are treated as ramps with special standards for railings and landings. FINDING: The Board concurs with the Hearings Officer's findings but desires to supplement the findings under this section. To avoid doubt, the existing buildings, structures, and improvements on the site that support the proposed campground are not "new commercial... development" for purposes of DCC 18.125.070(C)(2) because they already exist. Accordingly, those existing improvements are not subject to its provisions in the first place. In any event, the Board finds that the existing buildings and the proposed additions are collectively sufficiently clustered to meet the internal pedestrian circulation requirements of this section given the size of the site and the nature of the proposed development. Chapter 18.128, Conditional Uses Section 18.128.015. General Standards Governing Conditional Uses. Except for those conditional uses permitting individual single-family dwellings, conditional uses shall comply with the following standards in addition to the standards of the zone in which the conditional use is located and any other applicable standards of the chapter: A. The site under consideration shall be determined to be suitable for the proposed use based on the following factors: 1. Site, design and operating characteristics of the use; 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 12 of 33 FINDING: The Board concurs with the findings of the Hearings Officer except to add that a bathroom/shower facility is now proposed as part of the modified application. The facility is proposed to be located within the setbacks applicable to a campground and is otherwise adequately located with respect to other elements of the campground, allowing convenient access to all users of the campground, while still providing a minimum of 25 feet of distance to the closest campsite' to allow privacy. This criterion is met. Z Adequacy of transportation access to the site; and FINDING: The Board concurs with the findings of the Hearings Officer but desires to further respond to arguments made by Cramer Farms and others with respect to turning movements to and from the site, along with corridor planning efforts by ODOT. The Board does not dispute that access to the site will be more challenging than other sites. However, neither the Applicant's transportation engineer, ODOT, nor County staff determined that access was "inadequate." Rather, the foregoing parties identified that sufficient access was achievable with conditions of approval. The Board has no basis to disagree with the assessment of these experts. As the Board understood the argument, Cramer Farms argues that ODOT is studying various alternatives to the Highway 97 corridor north of Bend and that some of those alternatives involve the elimination of direct access to the site from Highway 97. Elimination of access to Highway 97 o yid rr%nflirt :.,ith a number of rnrQvirzinnC inrll Iding the requirement that access be from a collector VVVUI �.V11 or arterial. To the Board's understanding, none of these studies or alternatives have been integrated into any plans or regulations that might be applicable approval criteria for the subject application. If such were the case, then one or more of the transportation experts listed above would have indicated that access to the site from Highway 97 is not permitted or inadequate. This criterion is met. 3. The natural and physical features of the site, including, but not limited to, general topography, natural hazards and natural resource values. FINDING: The Board concurs with the findings of the Hearings Officer except to add that a bathroom/shower facility is now proposed as part of the modified application and to respond to additional arguments raised before the Board. The proposed bathroom/shower facility will be connected to a sufficiently sized septic system that must comply with state and county regulations designed to protect natural resources. 3 The closest campsite is Yurt 5 (Y5), which is designated as an ADA accessible site. The parking space is adjacent to the bathroom/shower facility. The yurt structure is 25 feet from the building and the picnic table is proposed at least 30 feet from the building. All other campsites are further than 30 feet from the bathroom/shower facility. 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 13 of 33 Arguments were made before the Board that the topography of the site was not conducive to a campground. Cramer Farms suggested that significant grading would be required to develop the campground and such grading would result in a reduction of terrain and vegetation that the proposal relies upon for screening. The Applicant indicated that no grading plan was submitted because no mass grading is required or desirable. Rather, the site was designed around the existing terrain and vegetation to preserve such features to the maximum extent practical. Roads and parking areas would be leveled with gravel with yurts similarly placed on areas leveled with gravel/fill or placed on platforms (as opposed to leveling the ground itself). The Board finds that the topography of the site is suitable for the proposed use and the development of the site as proposed is appropriate and feasible. Screening is addressed in more detail below. Opponents to the proposal also made a variety of arguments related to wildfire risk. The Board acknowledges that wildfire is a serious concern for Central Oregon. However, the Board does not find that the proposed use presents an unreasonable wildfire risk based on the following: • All properties in Deschutes County are subject to DCC Chapter 8.21, which imposes affirmative obligations on property owners to reduce wildfire risk. • The subject property is within a rural fire protection district. • The subject property itself does not exhibit any characteristics that makes it materially more prone to fire than other properties in the area. • Nearly every allowed use within the MUA-10 Zone presents some degree of wildfire risk and that the degree of risk associated with the proposed use does not significant exceed the risk associated with those other uses. • The subject property includes an irrigation system and rictern that could be lltili7PH to combat a wildfire. • The conditions of approval imposed by this decision are sufficient to mitigate the concerns regarding wildfire raised by the opponents and otherwise create a safe environment. Most of the fire related comments were not directed at any particular approval criteria. To the extent such comments were directed at different provisions of the DCC, the Board's findings under this section will be applicable to those other sections. B. The proposed use shall be compatible with existing and projected uses on surrounding properties based on the factors listed in DCC 1&12&015(A). FINDING: The Board concurs with the findings of the Hearings Officer except to add that a bathroom/shower facility is now proposed as part of the modified application. With additional fencing, the Board finds that the bathroom/shower facility can be added to the site without rendering the proposed use incompatible with existing and projected uses on surrounding properties. The Board further notes that adjustments to the site design necessary to achieve compliance with the conditions of approval or with the ADA will not change the finding of compatibility provided such adjustments occur within the developable area. The setbacks, required fencing, quiet hours, and reduced number of guests sufficiently mitigate noise, visual, headlights, and all other cited impacts on adjoining properties. This also includes the Applicant's prohibition of large group campouts and all planned or unplanned events for those not on the guest register. 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 14 of 33 Without tying the issue to any particular approval criteria, Cramer Farms requested that dogs be prohibited from the site based on concerns over barking. The Board finds that dogs are permitted on surrounding properties and are otherwise common in rural areas. Accordingly, the Board finds that permitting dogs within the campground does not create any incompatibility/disharmony with surrounding uses or otherwise render the site inconsistent with applicable approval criteria. C. These standards and any other standards of DCC 18.128 may be met by the imposition of conditions calculated to insure that the standard may be met. FINDING: The Board concurs with the findings of the Hearings Officer except to add that a bathroom/shower facility is now proposed as part of the modified application. The conditions of approval recommended by the Hearings Officer have been revised and/or supplemented to ensure compliance with applicable approval criteria. Section 18 128.320. Campgrounds. A conditional use permit for a campground may be issued only when the following criteria are met. A. Campgrounds shall provide patrons with opportunities for outdoor recreation that are compatible with the natural setting of the area. Outdoor recreation activities include fishing, swimming, boating, hiking, bicycling, horseback riding and other similar activities. Outdoor recreation does not include commercial uses such as miniature golf cour3es, go cart tracks or rental of equipment or animals. FINDING: The Board concurs with the findings of the Hearings Officer but desires to expressly interpret this provision as being satisfied by the hiking trails and outdoor gathering area included as part of the proposal. C. Water supply and sewage disposal shall be provided as follows: 1. Applicant shall demonstrate that there is adequate potable water available at the site to serve the campground. When the water is to be supplied from a well, a well log is required to show that an ample supply of water will be available for the campground it will serve. FINDING: The modified application includes a proposed bathroom/shower facility, which was supported by supplemental information provided by the Applicant, an engineering firm, regarding the sufficiency of the water system. Based on U.S. Forest Service standards included in the record, campgrounds with showers and flushing bathrooms use between 20 and 40 gallons per person per day. Arguments were made by various parties as to which part of this range is most appropriate for determining sufficiency of the water system. The Applicant determined that 30 gallons per person per day was a conservative estimate. At this rate of usage, the well and proposed 1,500-gallon septic system could support 50 persons per day. The Board finds that it is reasonable and reliable to assume 30 gallons per person per day and that the analysis from the Applicant regarding the 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 15 of 33 sufficiency of the well and cistern constitutes substantial evidence. The Applicant indicated that a condition of approval limiting occupancy to 50 persons per day is acceptable and such a condition is imposed as part of this decision. The Board acknowledges that before the Hearings Officer, the Applicant also agreed to have maximum occupancy for each campsite of four people, which was not disputed before the Board and thus will be included as a condition of approval. This criterion is met. 2. Plans for water supply and sewage disposal improvements must be approved by the State Health Division and the Department of Environmental Quality. FINDING: A bathroom/shower facility is now proposed as part of the modified application. The record demonstrates that it is feasible to obtain approval for water and sewage disposals systems supporting the campground. This criterion is met. 3. Evidence shall be provided to demonstrate that the campground will be eligible for a certificate of sanitation as required by the Oregon Department of Environmental Quality. FINDING: The residence located on the subject property is served by the existing septic system under Permit No. 247-14-001029-SEP. A septic system to serve the proposed campground received a septic feasibility analysis from the County, which administers sanitation approvals on behalf of the State, for a 1,500-gallon septic system. The modified application includes a bathroom/shower facility and supplemental information demonstrating the sufficiency of the septic system to support � �p to 50 persnns per day based on a usage assumption of 30 gallons per person per day. As discussed above, the record supports a finding that the proposed septic system can support up to 50 persons per day and a condition of approval has been imposed accordingly. The feasibility analysis issued bythe County is evidence demonstrating eligibilityfor required sanitation approvals. This criterion is met. D. A campground shall conform to state standards specified in OAR Chapter 918, Division 650 and the following. 1. Sixty five percent of a parcel developed as a campground shall be retained as open space. Natural vegetation shall be maintained in open space areas to the fullest extent possible. Walkways, roadways, parking spaces, structures, service areas and campsites shall not be considered open space. FINDING: The Board concurs with the findings of the Hearings Officer except to add that a bathroom/shower facility is now proposed as part of the modified application and will be located within the developable area. Based on the calculations of the Hearings Officer and the submitted materials, this criterion is met. 2. The space provided for each campsite shall be not less than 1600 square feet exclusive of any space used for common areas such as roadways, general use structures, walkways, landscaped areas and parking spaces other than those assigned to particular campsites. 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 16 of 33 FINDING: The Board concurs with the findings of the Hearings Officer but desires to supplement the findings based on the proceedings before the Board. Cramer Farms argued that this standard is not met because a portion of one or more driveways is depicted on the modified site plan as outside of boundaries of corresponding campsite. Cramer Farms further argued that certain sites on the modified site plan do not show the requisite 10 feet of spacing between sites as discussed below. According to Cramer Farms, adjustments could not be made to achieve compliance with this standard because either it could not practically be done and/or such adjustments would create new or different impacts requiring further review. In the subsequent finding under OAR 918-650-0055(1), the Board analyzes the refinement of two campsite parking spaces together with their relationship with the 10-foot spacing requirement. The Board finds that the campground features 0.9 acres, or 39,204 square feet, of "developable area" (area within required setbacks without any waivers). The 15 camp spaces require a minimum of 24,000 square feet to achieve this standard. Given that there is 38 percent of the developable area available to make minor adjustments to the delineations of the individual campsites, the Board finds that it is feasible to achieve compliance with this standard through a condition of approval. In the analysis under OAR 918-650-0055(1), Figure 3 illustrates the potential parking space location together with the designated 1,600 square foot area for those two specific campsites. As identified above, adjustments within the developable area will not create significant impacts because of the buffer created by the setbacks together with the reduced number of guests and enhanced fencing required as conditions of approval to this decision. 3. Campgrounds shall provide potable water, toilet and shower facilities, lighting, picnic tables and garbage collection sites for the convenient use of campers as specified in OAR 918-65o_ Water and electric lines shall be placed underground. FINDING: The modified proposal includes all of the required components identified in this criterion, which the Board finds are convenient for use by campers. All water and electrical lines are proposed to be placed underground. This criterion is met. 4. Campgrounds shall not provide campsite hookups for sewage disposal or electricity. A centralized sewage dump station that meets state standards may be provided. FINDING: The Applicant does not propose any campsite hookups for sewage disposal or electricity. No sewage dump station is proposed. S. Roadways permitting one-way traffic shall be not less than 10 feet wide and those permitting two way traffic shall not be less than 20 feet wide. Where parking is allowed on the margin of the road, an additional 10 feet shall be added for each parking lane. 4 The Board acknowledges that each campsite, as proposed, varies in size but is not less than 1,600 square feet in area. The two highlighted campsites shown in Figure 4 generally refer to the minimum required area of 1,600 square feet. 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 17 of 33 Roadways shall be improved with an all-weather, dustless surface. FINDING: The Board concurs with the Hearings Officers findings but desires to further interpret the term "dustless surface". Cramer Farms argues that this could only mean a paved surface. The Board disagrees. As a starting point, dust invariable settles on all surfaces including paved surfaces. Accordingly, the Board interprets this provision as meaning any arrangement reasonably calculated to prevent dust. The Board concurs with the Applicant that paving is expressly required in other sections of the DCC and thus the words "paving", "asphalt", or similar terms could have been used if the intent were to requiring paving. Because there is no express paving requirement, and because the sufficient dust control measures have been proposed, which include limiting vehicle speeds to 5 mph and the application of water and/or magnesium chloride as dust abatement, the Board finds that the proposed gravel roadway meets this standard. Alternatively, the proposal qualifies for an exception under DCC 18.116.030(F) for the reasons set out in the Hearings Officer's Decision. 6. Except for the access roadway serving the campground, no vehicular or pedestrian access shall be allowed out of the campground. Fences shall be provided which prevent trespass to property not under the control of the campground owner. FINDING: The Board largely concurs with the Hearings Officer's findings but desires to make additional findings. The Board notes that this provision does not expressly require perimeter fencing, fencing of any particular design, or contiguous/continuous fencing. Accordingly, the Board interprets this provision as requiring any type and/or arrangement of fencing reasonably calculated to prevent trespass. The record shows that there is existing perimeter fencing along the northern, southern, and westerly boundaries of the subject property. As acknowledged by the Hearings Officer, there is a concern as to where the existing fencing is located in relation to the precise property boundary, specifically the southern boundary adjacent to Cramer Farms. Additionally, Cramer Farms requests that if the applications are approved, the existing fence line be retained.5 The southern existing fence runs generally in an east to west orientation, as illustrated in Figure 1 below. Based on the site plan, approximately 735 feet of this fence line is located on the subject property from the point where such fencing enters the subject property until the point at which it intersects the westerly property line. 5 May 15, 2019 comments submitted by Liz Fancher on behalf of Cramer Farms, which states, in part, the following: A significant part of the subject property depicted on the site plan lies south of a property line fence located between the subject property and Cramer Farms properties.... This area has been under the control of Cramer Farms and prior owners of its properties for over fifty years. If this application is approved, the applicant should be required to retain all existing fencing shown on its site plan. Any change to the south fence line would adversely impact Cramer Farms. 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 18 of 33 Figure 1 - Existing Fence 100.00' Y6 Y1ETWX : 3j \. ? T- - - SEMACK / Existing Fence? I Property Line Existing Fence The fencing described below is being required to satisfy other code provisions. However, the Board finds that this fencing is more than sufficient to meet the subject provisions. In addition, the Board concludes that the remaining existing fencing on the property, such as that fencing along the north and west property boundaries is sufficient to prevent trespass to all abutting properties provided: 1. Signage is posted to delineate campground boundaries; 2. On the subject property, approximately 735 feet of continuous solid fence, six feet in height, be installed in the location of the existing southerly fencing, running east to west, from the point where such fencing enters the subject property until the point at which it intersects the westerly property line; 3. On the subject property, approximately 105 feet of continuous solid fence be installed along the northern boundary of the drain field; 4. Fencing, which may be aboveground welded or woven wire fencing, be constructed to prevent use of the pond; 5. Fencing, which may be aboveground welded or woven wire fencing, be constructed to demarcate the outer boundaries of the hiking trail; and 6. All existing and new fencing on the subject property shall be repaired and maintained to prevent trespass to property not under the control of the campground owner. Other internal fencing shown on the modified site plan or discussed as part these proceedings may be installed, but will not be required because it will be duplicative given the conditions proposed by this decision. For purposes of this decision "solid fencing' means fencing of a non -transparent material with gaps between boards, slats, or similar materials of no greater than one inch6. Additionally, the Board does not consider barbed or electric wire fencing as welded or woven wire fencing. 9. To promote privacy and preserve the integrity of the natural setting, campgrounds shall retain existing vegetation to the fullest extent practical. FINDING: The Board concurs with the Hearings Officers findings but notes that this provision must be construed in the context of mitigating fire risk. As identified above, DCC Chapter 8.21 imposes a variety of obligations on property owners to manage vegetation to minimize fire risk. Given this 6 The Board acknowledges that wood expands and contracts in response to changes in temperature and moisture and so a small gap may be necessary to accommodate this natural change. 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 19 of 33 obligation, "retain existing vegetation to the fullest extent practical" does not prohibit trimming or pruning of vegetation that might be required under DCC Chapter 8.21 or that is otherwise consistent with sound principals of fire fuels management. This language also does not prohibit removal of dead, diseased or hazardous vegetation, noxious weeds, or grazing of animals at any time. 10. Yards and Setbacks. b. No developed portion of the campground shall be located within 100 feet of the right of way of any road or property line of a lot not part of the campground. FINDING: The Board concurs with the Hearings Officers findings but notes that developed portions of the campground also include the trails, infrastructure, accessory structures, and other improvements that support the proposed campground.' It does not apply to site improvements that are unrelated to the campground or support other uses occurring on the property. The Board finds that all improvements related to the campground meet the standard or qualify for a waiver under DCC 18.128.320(D)(10)(d), except for the shed recently placed near the southern boundary as shown below in Figure 2 Figure 2 - Current Shed Location 41) CO � Pond } s Shed -; 4 S89'58'34"E 1158.17' Property tine This structure must be relocated within the developable area and a condition of approval is imposed accordingly. d. Setback requirements in DCC 18.128.320(D)(10)(b) and (c) may be waived upon a finding by the Planning Director or Hearings Body that the developed portion of the campground will be sufficiently screened ' The pond is an existing development that is not proposed to be used as part of the campground. As such it is not a "developed portion" of the campground. Because it could present a safety hazard, and to ensure it is not used as part of the campground, the Board is requiring that it be fenced (wire fencing is acceptable) and signed to prevent use by campground guests. 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 20 of 33 and buffered from neighboring properties or the protected landscape area. FINDING: The Board concurs with the Hearings Officers findings but desires to add clarification and address additional arguments raised in the proceedings before the Board. The Board desires to clarify that solid fencing, as described above, will be required along the northern boundary of the drain field, which is approximately 105 feet in length and located just east of the natural canyon. This fencing will provide the requisite screening for a setback exception. While the drain field itself will be sufficiently screened by being located underground, removal of trees necessary to establish the drain field will reduce the natural screening of the campground from the property to the north. The Board finds that the existing dwelling on the site, which would be used as a caretaker facility, hiking trail, well, cistern, underground pipes, sheds, and all other improvements supporting the campground are approved for a waiver from setback requirements and may be located as shown on the modified site plan. The Board finds that these improvements generate minimal visual impacts, if any, and are sufficiently screened by terrain and existing vegetation (or by being placed underground). Furthermore, as detailed above, the Board is requiring additional solid fencing in the following locations to provide additional screening above what is not otherwise provided by terrain and natural vegetation for the benefit of residences on abutting properties. Other internal fencing shown on the modified site plan or discussed as part these proceedings may be installed, but will not be required because it will be duplicative given the conditions proposed by this decision. As noted previously, "solid fencing" means fencing of a non -transparent material with gaps between boards, slats, or similar materials of no greater than one inch. Furthermore, the Board does not consider barbed or electric wire fencing as welded or woven wire fencing. OREGON ADMINISTRATIVE RULES (OAR) Chapter 333, Oregon Health Authority, Public Health Division DIVISION 31, OPERATION AND MAINTENANCE OF RECREATION PARKS FINDING: The Board concurs with the Hearings Officer's findings but notes that the modified proposal includes a shower/bathroom facility, does not include any drill holes/dry wells (all water facilities will be connected to the septic system), and otherwise addresses the bases for denial identified by the Hearings Officer. Chapter 918, Department of Consumer and Business Services, Building Codes Division DIVISION 650, RECREATION PARKS AND ORGANIZATIONAL CAMPS OAR 918-650-0020. Permit Required. 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 21 of 33 No person may establish or enlarge the facilities of any recreation park or organizational camp or do any construction within the recreation park or organizational camp or cause the same to be done without first obtaining all required permits from the building official and paying the prescribed permit fees. Multiple permits may be required when the proposed work involves two or more code areas (i.e., structural, electrical, plumbing, or mechanical). EXCEPTION. Applications for permits, submission of plans and payment of fees are not required for additions, alterations, relocation and maintenance of picnic tables, play equipment, fire pits and similar facilities in existing parks. FINDING: The modified proposal includes a shower/bathroom facility and otherwise addresses the bases for denial identified by the Hearings Officer. The Board finds that it is feasible for the proposed development to receive all applicable permitting necessary to operate a private campground. OAR 918-650-0025. Coordinating Regulation. Permit Issuance: (1) The application, plans, specifications, computations and other data filed by an applicant must be reviewed by the building official. Such plans may be reviewed by other departments or agencies to verify compliance with any applicable laws under their jurisdiction. If the building official finds that the work described in the application for a permit and the plans, specifications and other data filed conform to the requirements of these rules and other pertinent laws and ordinances, and that the fees have been paid, the building official must issue a permit to the applicant. Regulations that also apply to recreation parks and organizational camps are. (c) Water Supply. Water supply systems must comply with regulations under the Department of Human Services Oregon Health Authority; FINDING: The modified proposal includes a shower/bathroom facility with documentation demonstrating sufficient water supply to support the modified proposal at a maximum occupancy of 50 persons per day. As a condition of approval, the proposed campground must comply with applicable water supply system regulations of the Oregon Health Authority. (d) Sewage Disposal. Sewage treatment and disposal facilities, including, but not limited to, on -site facilities, solid waste container wash -down facilities, gray water waste disposal systems, pit privies, vaults and chemical toilets, must comply with regulations under the Oregon Department of Environmental Quality; FINDING: The modified proposal includes a shower/bathroom facility, lavatories, and otherwise addresses the bases for denial identified by the Hearings Officer. As detailed in this decision, all of the sinks, toilets, and showers will be connected to the septic system, which the supplemental analysis demonstrates is sufficient to support 50 persons per day at the campground. As a condition 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 22 of 33 of approval, the proposed campground will be required to comply with the regulations of the Oregon Department of Environmental Quality. (h) State Building Code. Buildings and structures must comply with the State Building Code and where applicable to rules adopted thereunder, FINDING: The modified proposal includes a shower/bathroom facility, lavatories, and otherwise addresses the bases for denial identified by the Hearings Officer. Compliance with state building codes is a technical exercise that may be conducted as part of the building permit process. As identified above, adjustments to the modified site plan within the developable area will comply with state building codes. OAR 918-650-0035. Plans and Specifications. (1) Plans. With each application for a plan review the applicant must submit two sets of construction plans and specifications. Plans and specifications must be drawn to scale, of sufficient clarity to indicate the nature and extent of the work proposed and to show in detail that the construction will conform to all relevant laws, rules and regulations of the State of Oregon pertaining to recreation parks and organizational camps. NOTE: The construction shown on these plans may contain construction details required by other rules or regulations in order to aid other agencies in determining compliance with their coordinating regulations. (2 Design. All plans must be designed in accordance with the requirements of the various codes and administrative rules and, where required, must be designed by a registered design professional. (3) Plan Format and Sequence. The following plan format and sequence specification are guidelines for both the designer and the plan reviewer. Deviations are permitted from strict compliance with the plan format and sequence specifications when such deviation will produce the same result. (a) The cover sheet of each set of plans must give the following. (A) The name of the recreation park or organizational camp and the location (vicinity (map), (B) The name of the owner, (C) The name of the operator; (D) The name of the person who prepared or submitted the plans, (E) The symbols used; and (F) The design maximum occupancy load for organizational camps. (b) The plot plan (on a separate sheet) must include: (A) Both proposed and existing construction, and (B) A scale drawing of the general layout of the entire recreation park or organizational camp showing property survey monuments in the area of work 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 23 of 33 and distances from park or camp boundaries to public utilities located outside the park or camp (indicated by arrows without reference to scale). EXCEPTION. When the work involves an addition to, or a remodeling of, an existing recreation park or organizational camp, the plot plan must show the facilities related to the addition and/or the facilities to be remodeled. (4) (a) The following features must be clearly shown and identified. (A) The permanent buildings (dwellings, mobile homes, washrooms, recreation buildings, and similar structures); (B) The fixed facilities in each space (fire pits, fireplaces or cooking facilities); (C) The property line boundaries and survey monuments in the area of work, (D) The location and designation of each space by number, letter or name, and (E) Plans for combination parks must also show which portions of the parks are dedicated to camp ground, organizational camp, mobile home park, picnic park, recreational vehicle park and joint use. (b) Park and organizational camp utility systems must be clearly shown and identified on a separate sheet. (A) Location of space sewer connections, space water connections and service electrical outlets; (B) Location and source of domestic water supply; (C) Location of water and sewer lines (showing type, size and material), (D) Park or camp street layout and connections to public street(s), (E) Disposal systems, such as septic tanks and drain fields, recreational vehicle dump stations, gray water waste disposal sumps, washdown facilities, sand filters, and sewer connections; (F) Fire protection facilities, such as fire hydrants, fire lines, tanks and reservoirs, hose boxes and apparatus storage structures, (G) Solid waste disposal system and solid waste collection features, such as refuse can platforms and supports, and wash -down facilities, and (H) Liquid Petroleum Gas (LPG) tanks and gas lines. (c) Park Topography. Park topography must be shown in the area of work when any existing grade or slope exceeds five percent. FINDING: The modified proposal includes a shower/bathroom facility, lavatories, and otherwise addresses the bases for denial identified by the Hearings Officer. OAR 918-650-0045 General Construction Requirements. (2) Space Separation and Designation. Building or space separation and space designation must be as follows: (a) The distance between buildings must be as required in the Oregon Structural Specialty Code; (b) The distance between spaces must be as provided in OAR 918-650-0055(1), 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 24 of 33 (c) Spaces must be identified by signs or markings corresponding to the letters, numbers or names indicated on the approved plans. FINDING: The modified site plan generally shows distances between spaces and corresponding space and yurt numbers. OAR 918-650-0055(1) is addressed below. This criterion can be satisfied with a condition of approval. (8) Screens. All openings, except doors with self -closing devices, into the outer air of permanent kitchens, dining rooms, toilets and shower facilities must be effectively screened. Screens may not be less than sixteen mesh per inch, and all screen doors must be equipped with a self -closing device. FINDING: The modified proposal includes a shower/bathroom facility, lavatories, and otherwise addresses the bases for denial identified by the Hearings Officer. If there any openings on the shower/bathroom facility, such openings must be screened in accordance with this criterion. A condition of approval has been imposed accordingly. OAR 918-650-0050. Toilets. (1) Toilet facilities must be provided in every recreation park or organizational camp. They must be convenient and accessible and must be located within 500 feet of any recreational vehicle space or camping site not provided with an individual toilet facility or sewer connection. EXCEPTION. The requirement for toilets in picnic parks, campgrounds and organizational camps may be waived by the regulating authority for areas not accessible by road. (2) (a) Sanitary facilities must be as required in Table 3-RV; (b) Toilet Bowls. Toilet bowls for public use must be elongated bowls with open front seats. Any room with flush toilets must be provided with a floor drain as required in the Oregon Plumbing Specialty Code; (c) Signs. Toilets must either be marked for the designated sex or be provided with a privacy lock. If not apparent, the location of toilets must be indicated by appropriate direction signs; (d) Flush Toilets and Showers. Flush toilets and showers and the buildings containing them must be constructed in accordance with the State Building Code, (e) unisex Toilets. Toilet facilities designed to serve an occupant load of 15 persons or less may serve both sexes. Such toilet facilities must be equipped with a urinal. FINDING: The modified proposal includes a shower/bathroom facility, lavatories, and otherwise addresses the bases for denial identified by the Hearings Officer. The proposed location of the facility is within 500 feet of any camping site. Compliance will be further reviewed as part of the building permit process. 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 25 of 33 OAR 918-650-0055. Special Rules for Overnight Campgrounds. (1) Spacing. Each camping space must be large enough to accommodate the designated class of recreational vehicle or tent and be located a minimum of ten feet from any other camping space, building or building appurtenance or any boundary line abutting upon a public street or highway, and five feet from any property line. The space area must be designed to minimize the obstruction of any public or private roadway or walkway by vehicles or tents. FINDING: The modified site plan generally shows distances between spaces and corresponding space and yurt numbers. However, Cramer Farms argued before the Board that one site, campsite 7 (S7), does not provide the required 10-foot spacing because the designated parking space is located inside that 10-foot separation area. In addition, Cramer Farms indicates that Yurt 4 (Y4) does not provide adequate parking stall length and if it did, it would encroach into the 10-foot spacing area. These two sites are illustrated below in Figure 3 with the associated parking space circled. Figure 3 - Proposed Parking Stalls (Site S7 and Y4) Pursuant to DCC 18.116.030, depending on the angle of the parking stall, the required stall width shall be 9 to 10 feet and the stall length shall be 19 to 22 feet. The question before the Board is whether there is adequate space to reorient these parking stalls in order to demonstrate compliance without the said change requiring a modification of the application. The Board finds that the campground has 0.9 acres (39,204 square feet) of "developable area". Further, with 24,000 square feet required for the 15 camp spaces, there remains 38 percent of developable area available to make minor adjustments to the delineations of the individual campsites. As illustrated in Figure 4 below, the Board finds there is adequate space within the required 1,600 square feet allocated to each camping site (DCC 18.128.320(D)(1)) to refine the parking stall orientation. In the following figure, it illustrates the potential to reorient the parking stalls into a zero degree angle 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 26 of 33 (parallel parking), which requires a stall width of 9 to 10 feet and length of 22 feet as required by DCC8. Figure 4 - Potential Parking Stalls (Site S7 and Y4) �► �' Pal `�� 7 r Campsite Area iCampsite Area r I % f 1,600 f ' Therefore, the Board finds that it is feasible to achieve compliance with this standard through a condition of approval. The Applicant will be required to submit a revised site plan consistent with this decision illustrating that all campsite parking spaces are in compliance with parking standards set forth in DCC 18.116.030(G) together with DCC 18.128.320(D)(1), and the criterion addressed here. OAR 918-650-0070 Alternate Materials and Interpretations: Appeals. (1) These rules are not intended to prevent the use of any alternate material, design, or method of construction for recreation parks or organizational camps which the rules do not specifically prescribe, provided that the building official has approved such alternate. (2) Modifications. Wherever there are practical difficulties involved in carrying out the provisions of these rules, the building official may grant modifications for individual cases, provided the building official: (a) Determines that a special individual reason makes the strict compliance with the letter of OAR 918, division 650 impractical, 8 Alternatively, the Board finds that the parking stall for site S7 could be moved to the east slightly, outside of the 10-foot spacing requirement, and still meet the dimensional requirements for that specific parking angle set forth in DCC 18.116.030. 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 27 of 33 (b) Ensures that the modification does not lessen any fire protection requirements or any degree of structural integrity or create any health or safety hazards; and (c) Maintains the details of any such action granting modifications in the files of the municipality. FINDING: The Applicant states it will work with the local building officials if the use of any alternate material, design or method of construction for the proposed use is considered that the rules do not specifically prescribe, and will seek building official approval of such alternative(s). The Board finds this criterion may be met with a condition of approval. V. DECISION: Based on the findings of fact and conclusions of law set out above, by a vote of 3-0, the Board hereby APPROVES the Applicant's application for a conditional use permit, site plan approval, and landscape management review in the MUA-10 Zone and LM overlay on the subject property, subject to the following conditions: A. This approval is based upon the application, site plan, specifications, and supporting documentation submitted by the Applicant. Any substantial change in this approved use will require review through a new land use application. B. The property owner shall obtain all necessary approvals and/or permits for the campground from the Deschutes County Building Safety Division, Deschutes County Environmental Soils Division, Oregon Health Authority, State Department of Health, Oregon Department of Environmental Quality, Oregon Department of Consumer and Business Services, Oregon Department of Transportation and the Deschutes County Road Department. C. Prior to initiating the campground use, the property owner shall submit to CDD a letter from the Bend Fire and Rescue stating that all required fire protection regulations have been met. D. No building or structure shall be erected or enlarged to exceed 30 feet in height, per DCC 18.32.040(D). E. Use of approved campground sites is limited to the following: 1. Overnight, temporary use for vacation and recreation purposes, not to exceed 30 days in any 60-day period by any campground site user; 2. Campfires and barbeque pits/stands are prohibited at each campground site; 3. Propane ranges, stoves or grills designed to be attached to a camper, trailer or motor home or for use inside a yurt are allowed9; 4. Individual campground sites shall not include utility hook-ups, water or sewer; and 9 The Board recognizes that cook stoves and similar appliances purchased commercially for camping use have been tested and/or certified through Underwriters Laboratories (UL) or a similar organization. 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 28 of 33 5. Parking for each individual campground site shall be limited to one vehicle or one vehicle and trailer10 F. No large group campouts are permitted, and all planned or unplanned events for those not on the guest register are prohibited. G. Parking along the access road is prohibited. H. The communal gathering area shall include a fireplace and a portable outdoor cooking station made of cleanable construction and designed to permit easy removal of ash and wood waste, per OAR 918-650-0045(7). I. Solid waste containers or bins shall be required to have the following: 1. Tight -fitting lids, covers or closable tops; and 2. Be durable, rust -resistant, water tight, rodent -proof and washable. J. Prior to initiation of use of the private campground, the access point to the campground shall be designated with signage as right -in, right -out only. K. Prior to initiation of use of the private campground, the campground access road shall have a posted and enforced speed limit of 5 miles per hour. The access road and parking areas shall be improved with clean 3/4-inch minus gravel for minimum nine -ton gross load, and shall be maintained at all times in a manner that will not result in nuisance dust conditions on neighboring properties, which includes the application of water and/or magnesium chloride as dust abatement. L. The campground shall require quiet hours for all patrons between the hours of 9:00 p.m. and 7:00 a.m., 7 days a week, 365 days a year. M. Commercial and/or industrial vehicles are not permitted to enter the campground, except for authorized maintenance and/or repair work on site. N. The campground buildings and all essential or accessory components shall observe the following approximate setbacks: 1. 100 feet from the north property boundary; 2. 100 feet from the south property boundary; 3. 100 feet from the west rear property boundary; and 4. 300 feet from Highway 97 (arterial right of way) along the subject property's eastern boundary. 10 The Board acknowledges that the Applicant's study area and analysis report provided various operational characteristics including the number of vehicles and trailers permitted in each campsite. The Hearings Officer recommended a condition of approval mirroring said characteristic. The Board confirms that the Applicant's site plan illustrates various parking space dimensions, none of which can accommodate more than one vehicle or one vehicle and travel trailer. 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 29 of 33 O. All trees and shrubs on the subject property, not removed by necessity of the proposed development, shall be retained and continuously maintained in a healthy, attractive condition. Grazing of animals is permitted. 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. Retention of existing vegetation between and around all required parking spaces shall be a minimum of 5 feet in width. If landscaping is introduced on the property, native vegetation species shall be used. P. No less than sixty-five percent (65%) of the subject property shall be retained as open space. Walkways, roadways, parking spaces, structures, service areas and campsites shall not be considered open space. Q. Water and electric lines to serve the subject property, if any, shall be placed underground. R. The campground shall provide potable water, toilet and shower facilities, lighting, picnic tables and garbage collection sites. The toilet facility shall include lavatories and a floor drain as required in the Oregon Plumbing Specialty Code. The location of toilets shall be indicated by appropriate direction signs. S. Flush toilets and showers and the buildings containing them shall be constructed in accordance with the State Building Code. T, All npenings, except doors with self -closing devices, into the outer air of toilets and shower facilities shall be effectively screened. Screens shall not be less than sixteen mesh per inch, and all screen doors must be equipped with a self -closing device. U. Campground parking spaces shall not be used for the storage of vehicles or materials or for the parking of trucks or any other vehicle used in conducting campground business. V. The proposed development and parking area must meet any applicable provisions of the Americans with Disabilities Act (ADA). W. All roofing of buildings or structures shall not be finished in white, bright or reflective materials. All buildings or structures shall be sided, finished or painted in muted earth tone colors that blend with and contrast with the surrounding vegetation and landscape. X. Any installed exterior lighting shall be sited and shielded so that it is directed downward and is not directly visible from Highway 97 or neighboring properties. Y. Any campground sign installed on the subject property shall comply with all highway and travelers' regulations for signage, as confirmed by Oregon Department of Transportation and Oregon Consumer and Business Services. No sign shall be erected, structurally altered or relocated until a sign permit has been issued by Deschutes County pursuant to DCC 15.08.070. 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 30 of 33 Z. Prior to initiation of use of the private campground, the campground shall obtain a certificate of sanitation as required by the Oregon Department of Environmental Quality, shall provide convenient and accessible toilet facilities (one for men and one for women), lavatories and shower facilities. AA. Prior to initiation of use of the private campground, the water supply serving the proposed campground from the existing well shall be constructed by the applicant and licensed with the Oregon Health Authority in accordance with the rules for Public Drinking Water Systems under OAR 335, Division 031-0004. Quarterly sampling shall be taken for year-round facility in accordance with OAR 333-031-0004(3)(a)-(f). BB. Maximum occupancy of each campsite and yurt site is limited to four (4) persons. The maximum occupancy of the campground is fifty (50) persons. CC. The campground shall post signs and enforce restrictions to prohibit vehicles and pedestrians from accessing neighboring private properties to the north, west and south of the subject property. DD. Prior to initiation of use of the private campground, the following shall be installed: 1. Signage posted to delineate campground boundaries; 2. On the subject property, approximately 735 feet of continuous solid fence, six feet in height, be installed in the location of the existing southerly fencing, running east to vest, from the point where such fencing enters the ci ibiart nrnnerty until the noint at �--- r -r r which it intersects the westerly property line; 3. On the subject property, approximately 105 feet of continuous solid fence be installed along the northern boundary of the drain field; 4. Fencing, which may be above -ground welded or woven wire fencing, be constructed to prevent use of the pond; 5. Fencing, which may be above -ground welded or woven wire fencing, be constructed to demarcate the outer boundaries of the hiking trail; and 6. All existing and new fencing on the subject property shall be repaired and maintained to prevent trespass to property not under the control of the campground owner. For the purposes of the decision, "solid fencing' means fencing of a non -transparent material with gaps between boards, slats, or similar materials of no greater than one inch. Furthermore, barbed or electric wire fencing are not considered as welded or woven wire fencing. EE. Striping shall be added and maintained on the campground access road to indicate the location of pedestrian crossings. FF. The property owner shall obtain building official approval prior to the use of any alternate material, design, or method of construction for recreation parks or organizational camps, which the rules in OAR 918-650 do not specifically prescribe. 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 31 of 33 GG. Prior to initiation of use of the private campground, the Applicant shall relocate the utility shed currently located near the southerly boundary and pond, to the developable area. The Applicant shall provide a revised site plan illustrating the new location of the shed. HH. Prior to issuance of a septic permit or building permit, the Applicant shall submit a revised site plan illustrating that all campsite parking spaces are in compliance with parking standards set forth in DCC 18.116.030(G) together with DCC 18.128.320(D)(1) and OAR 918- 650-0055(1). 11. Each individual (or group of individuals) staying at each campsite shall receive a copy of the rules and a representative of that party shall sign an acknowledgement as part of the reservation process. Rules will also be posted on the restroom facility. The Applicant shall ensure that the campground is operated in compliance with the rules. jj. Prior to issuance of a septic permit or building permit, the Applicant shall sign and record a Conditions of Approval Agreement to ensure compliance with conditions A - II. Other permits may be required. The Applicant is responsible for obtaining any necessary permits and meeting the requirements of the Deschutes County Building Safety Division, the Deschutes County Environmental Soils Division, and the Deschutes County Road Department, as well as obtaining any required state and federal permits. 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 32 of 33 VII. DURATION OF APPROVAL The applicant shall initiate the use for the proposed development within two (2) years of the date this decision becomes final, or obtain approval of an extension under Title 22 of the County Code, or this approval shall be void. Dated this _ day of April , 2021. BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES COUNTY Anthony DeBone, Chair Phil Chang, Vice Chair Patti Adair, Commissioner THIS DECISION BECOMES FINAL WHEN MAILED. PARTIES MAY APPEAL THIS DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS DECISION IS FINAL. 247-19-000361-CU,-000362-SP,-000363-LM,-000583-MA,-000879-MA, 247-20-000206-A, and-000788-MA Document No. 2021-308 Page 33 of 33 Mailing Date: Wednesday, February 26, 2020 DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: 247-19-000879-MA, 247-19-000361-CU,-000362-SP, - 000363-LM, and-000583-MA APPLICANT: Erik Huffman, BECON Civil Engineering and Land Surveying OWNER: Shawn Kormondy IRA CONSULTANTS: Garrett Chrostek, Bryant, Lovlien and Jarvis Douglas White, Oregon Planning Solutions Joe Bessman, Transight Consulting, LLC PROPOSAL: The applicant requests a Conditional Use and Site Plan to establish a campground in the Multiple Use Agricultural Zone and Landscape Management Combining Zone. The applicant requests a modification of the original application that includes reducing the number of campsites and changing other ancillary aspects of the proposed campground. The applicant also requests a modification of the original application that includes a request to change from a non -water carried system to a septic system. LOCATION: STAFF CONTACT: PUBLIC HEARING DATE: APPLICATION FOR MODIFICATION OF APPLICATION DATE: RECORD CLOSED HEARINGS BODY: I. APPLICABLE CRITERIA: 64061 N. Highway 97 Bend, Oregon 97701, as described as Map 17-12-04, Tax Lot 800 Cynthia Smidt, Associate Planner September 11, 2019 December 13, 2019 January 17, 2020 Stephanie Marshall, Deschutes County Hearings Officer Title 22, Deschutes County Procedures Ordinance Chapter 22.20. Review of Land Use Applications Title 18, Deschutes County Zoning Ordinance Chapter 18.32. Multiple Use Agricultural Zone Chapter 18.84. Landscape Management Combining Zone Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 000583-MA EXHIBIT "A" TO DOCUMENT 2021-308 Chapter 18.116. Supplementary Provisions Chapter 18.12 . Si! Plan Review Chapter 18.128. Conditional Uses Title 15 Deschutes County Buildings and Construction Ordinance Chapter 15.08. Sign Oregon Administrative Rules Chapter 33% Division 31, Operating Recreation Park Chapter 33% Division61, Drinking Water Chapter 918, Division 650,Re Recreation Pars an Organizational Camp m BASIC ENDINGS: LOCATION: The subject property has anassigned adms of 6 01N.Highwa gf Bend an is identified on County Assessor Map 1712 0 ,a Tax Lot 800. The subject propert &shown onthe following map: / z} FORT gmmmLN \ � ƒ AV / / ( i k _ \ Subject Property � / . / m7AN #U` eA� b Y. � / { / ƒ ~ �c / BEND § . \ Final Decision File Nat 71$0 op9UA 20 31- ƒ -00032- R $0 3 3-LMand- 2 0 0 8 - A LOT OF RECORD: Deschutes County recognizes the subject property as a legal lot of record as determined in file number 247-17-000113-LR. ZONING: The subject property is within the Multiple Use Agricultural (MUA-10) Zone. The property is also within the Landscape Management (LM) Combining Zone. SITE DESCRIPTION: The subject property is approximately 9.53 acres with varying terrain and native vegetation throughout. Primary access is taken from Highway 97, which abuts the property along its eastern boundary. The site is developed with a single-family dwelling established in 1957, various accessory structures, a pond, and access road. The property includes six (6) acres of water rights. The existing development is centrally located on the subject property. According to the Flood Insurance Rate Map (FIRM) for Deschutes County and the National Wetlands Inventory (NWI), respectively, the subject property is not located in the 100-year flood plain nor does it contain mapped wetlands. A neighboring property owner, Cramer Farms LLC ("Cramer Farms") submitted comments to the record, as noted in the Public Comments section. One comment is specific to the overlap of Cramer Farms' development along the southern boundary, which it states could potentially affect the proposed campground, whether related to the open space calculation, campground setbacks, or fencing requirements. SURROUNDING LAND USES: Surrounding the property is an area consisting of undeveloped and developed residentially -zoned properties of varying sizes. The Burlington Northern Railroad is located approximately 1,100 feet east of the property and travels in a northeast -southwest direction. Highway 97 is also located to the t" east, traveling in a similar direction. At its closest reach, the Bend city limits and its associated urban growth boundary are both located approximately 680 feet to the southeast of the subject property. More dense development within the city limits is located at least 2,000 feet to the south and on the east side of the railroad tracks. Juniper Mobile Home Park (also referred to as Juniper Hilltop Mobile Estates) is approximately 1,450 feet to the south of the property, lying east of the highway and west of the railroad (and Bend city limits). Located approximately 500 feet to the northeast is the Four Seasons Mobile Park, also situated between the highway and the railroad. Approximately 350 feet to the north, the County approved a dude ranch through files 247-16-000057-SP and 247-16-000058-CU. County records do not show evidence of active development of the dude ranch at this time. The surrounding area is zoned MUA-10 with City lands of various zoning to the south. LAND USE HISTORY: The following land use applications, identified below by their file numbers and description, relate to the subject property. MJP-79-20 Partition to divide property into two 5-acre (approx.) parcels. County records show this project was voided. 247-17-000112-LM I Site Plan review for detached 1,500 square foot shop PROPOSAL: On May 2, 2019, the applicant requested a Conditional Use and Site Plan to establish a 30-site campground in the MUA-10 and LM Zones; the applicant Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 3 000583-MA submitted a revised request on May 8, 2019 for a 28-site campground. On May 31, 2019, the County sent a letter to the applicant indicating that the submittal was incomplete with respect to twelve items. The applicant submitted a revised burden of proof on July 17, 2019 to address staffs raised concerns. The applicant requested a first modification of the original application that includes reducing the number of campsites and changing other ancillary aspects of the proposed campground including removal of a proposed RV site for the caretaker. As a result of input from Cramer Farms, the Deschutes County Community Development Department (CDD) and others, a third revision to the site plan, proposing 15 campsites was submitted to the county on July 17, 2019. In response to the modified application, on July 25, 2019, the applicant received a second letter from Cramer Farms that identified over 18 issues of concern related to the proposed campground. On August 21, 2019, the applicant submitted a letter to the CDD responding to each of the points raised by Cramer Farms. In response to staff report, dated September 5, 2019, the applicant submitted a fourth revision to its Burden of Proof and site plans were submitted to the Hearings Officer at the September 11, 2019 public hearing for consideration and inclusion into the record. As discussed in Review History below, after the close of the record, the CDD determined that non -water carried systems are not permitted under the Code. The Hearings Officer opened the re -opened record to hear this evidence and subsequently determined that changing from a non -water carried system to a regular septic system constituted a modification of application. The applicant submitted an application for modification of application and a revised burden of proof dated December 10, 2019.' The applicant submitted a modified plan with a proposed 1000 linear foot drain field and new restroom facility that will include two flush toilets to serve the proposed campground, within 500 feet of all camp sites. An undated letter from Becon Civil Engineering and Land Surveying regarding Modification of 247-19-000361-CU, 000362-SP, 000583-MA was submitted by the applicant, stating that the purpose of the modification is to change from a non -water carried system to a septic system. It encloses a revised burden of proof, revised site plan and a photo of the general design/appearance of the toilet facility. The photo of the toilet facility replaces the photo of the pit toilet building shown in Exhibit M (hearing exhibit D, page 2). The design/colors of the yurt remain the same (hearing exhibit D, page 1). The site plan illustrates aspects of the property and proposed project, including existing structures, a pond, well, fences, toilets, septic tank/drainfield, house and natural features. The site plan illustrates the access road with vehicle turnaround, campsite parking pads, yurt parking pads with footpath to yurts, tent areas, gazebo/social gathering area, trash receiving area, toilets and the ADA yurt paved parking and wheelchair path accessing toilets. The applicant also submitted a Google image and topographical base map to further illustrate existing uses. None of the campsites will provide utility hook-ups, and no intensely developed recreational or commercial uses or activities such as swimming pools, tennis courts, 1 The revised burden of proof dated December 10, 2019 states that it replaces the July 17, 2019, May 2, 2019 and September 11, 2019 burdens of proof. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 4 000583-MA retail stores, roadside stands or gas stations associated with the proposed use are proposed. The original request was for a 28-30 space campground, which included 9-10 RV sites, 10 tent sites, 9-10 yurts, temporary and/or permanent restroom/shower facilities, shower facilities, check -in kiosk, and caretaker RV site. The first modification request reduced the campsites to 15, which will include 10 sites for tent, camper, or trailer ("tent/camper/trailer") and 5 yurt sites. All 15 spaces will be used for overnight tent, RV camping or yurt use. The applicant states that it is agreeable to a condition of approval limiting the number of people occupying each campsite to four (4) persons, for a total maximum occupancy of sixty (60) persons.2 The first modification removes the full hook-up (water and sewer) RV sites and removes the shower/restroom facility from the plan. The second modification revises the site plan to include two proposed flush toilets, a proposed drain field and addresses related issues (e.g. tree removal for the proposed drain field). Structures proposed in association with the campground include yurts, restroom structure, enclosed trash area, and gazebo. The existing residence will be utilized as the camp caretaker or proprietor residence. The site plan submitted by the applicant shows at least ten (10) feet separation between all campsites.3 The amount of ground disturbance (with pervious gravel surface) associated with the proposed access road, 10 camp parking pads and 4 yurt parking pads is 0.9 acres. The amounts of impervious surfaces for the ADA yurt parking pad and access, toilet pad, trash receiving pad, roofs of five yurts and a gazebo is less than 3,000 square feet. The applicant is not seeking a waiver to locate any developed portion of the campground within the required 100-foot setback (except to the extent the drain field constitutes a "developed portion of the campground" under DCC 18.128.320(D)(10)). The trail leading to the existing pond has been deleted from the site plan. The applicant submits that a drain field is not a structure and thus not subject to any setback requirements. 2 Cramer Farms submitted comments in a letter dated January 10, 2020, alleging that the applicant is proposing a maximum occupancy of the proposed campground of ninety (90) persons. The applicant submitted rebuttal on January 17, 2020 which states, among other things, that it has included a proposed condition that requires that campsites be limited to 4 persons per campsite and thus that there will be a maximum occupancy of 60 people with 15 total campsites. The Hearings Officer finds Cramer Farms' comment is contrary to the applicant's submissions and that, with a condition of approval to limit occupancy to a maximum of sixty (60) persons, the Hearings Officer need not require reduction of camp sites. 3 Cramer Farms' January 10, 2020 letter states that the Building Official will not be able to permit a park site plan consistent with the regulations of OAR 918-650-0045(2) and-055(1), which require each camping space to be located a minimum of ten feet from any other camping space. Cramer Farms alleges that the revised campsite layout plan filed by the applicant on December 9, 2019 fails to show any separation between spaces 2 through 5, and yurt spaces Y2 and Y3; spacing between all other spaces appears (by scaling the plan) to provide inadequate separation between spaces. The applicant's rebuttal submitted on January 17, 2020 states that separation of sites is beyond the scope of the Hearings Officer's December 18, 2019 order. Nonetheless, the applicant states that the scale of the site plan (the measure of the road width provides another reference) shows that at least 10 feet is provided between all campsites. The applicant states it is agreeable to a condition of approval to ensure compliance. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 5 000583-MA The applicant is proposing a toilet (2-seater) on a septic system, with locking doors and hand sanitizer, the location and dimensions of which are shown on the revised site plan. The toilet facility will be in the general appearance shown on Exhibit M of applicant's revised burden of proof. The water supply serving the proposed campground from the existing well will be constructed and licensed with the Oregon Health Authority in accordance with the rules for Public Drinking Water Systems under OAR 333, Division 031-0004. A potable water supply will be provided for cooking and drinking by way of the existing well located on the subject property. A grey -water sump for dirty dish soap will also be provided. No sewage disposal station is proposed and no electrical service is being extended into the campground. The access road from the highway to the turn around is approximately 940 feet in length and 20 feet wide. The road will consist of clean %" minus gravel. Speeds will be kept to less than 5 mph on the camp road. The applicant submits these two measures alone will keep the dust to a minimum. Vegetation within the campground will be watered from the irrigation system to keep dust to a minimum, Water on -site will also be available for any additional dust control measures that need to take place at the campground. The applicant submits that airborne dust will not migrate to neighboring properties. The applicant states it will obtain approvals and permits, as needed, from the Oregon Department of Consumer and Business Services (CBS), the Oregon Health Authority (OHA) and Deschutes County Building Division prior to any construction. A permanent vehicle access road and turnaround, sized for emergency vehicles, is proposed. The road will extend through the campground, accessing each campsite, to the proposed communal area. The access will be about 25 feet from the proposed communal area where emergency vehicles can easily reach the area. The proposed fire apparatus road will have a width of at least 20 feet and adequate head clearance. The road will be designed and maintained to support loads for emergency vehicles (60,000 GVW) and will be surfaced with an approved all- weather material. A key vault will be provided at the electric gate entrance. A water supply is available by use of the irrigation pond located just to the south of the proposed use and water from the on -site well that is connected to a 2,500-gallon cistern tank at pump house. The applicant states it will work with Bend Fire to ensure all required fire safety measures are taken and maintained. The applicant provided Site Traffic Reports prepared by Joseph Bessman, PE, of Transight Consulting, with the most recent report dated June 25, 2019. The applicant also provided a Noise Technical Report prepared by Roger Whitaker, P.E., of Solera Engineering Consulting dated July 14, 2019. The applicant has submitted an application in support of the proposal and two (2) applications for modification of the application. All application materials are incorporated herein by reference. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice of: (1) the original application, and (2) the modification application dated December 13, 2019, to several agencies and received the following comments. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-L.M and - 6 000583-MA Bend Fire Department: Larry Medina, Deputy Chief of Fire Prevention, provided the following comments on May 13, 2019. FIRE APPARATUS ACCESS ROADS: • Approved vehicle access for fire fighting shall be provided to all construction or demolition sites. Vehicle access shall be provided to within 100 feet of temporary or permanent fire department connections. Vehicle access shall be provided by either temporary or permanent roads, capable of supporting vehicle loading under all weather conditions. Vehicle access shall be maintained until permanent access roads are available. 2014 OFC 3310.1 • Approved fire apparatus access roads shall be provided for every facility, building or portion of a building hereafter constructed or moved into or within the jurisdiction. The fire apparatus access road shall comply with the requirements of this section and shall extend to within 150 feet of all portions of the facility and all portions of the exterior walls of the first story of the building as measured by an approved route around the exterior of the building or facility. 2014 OFC 503.1.1 • Fire apparatus roads shall have an unobstructed width of not less than 20 feet, exclusive of shoulders, except for approved 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. T affic 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 GVVV) 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 of ASTM F 2200. A Knox® Key Switch shall be installed at all electronic gates. 2014 OFC D102.1, 503.2.4, Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 7 000583-MA 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. OTHER FIRE SERVICE FEATURES: • New and existing buildings shall have approved address numbers, building numbers or approved building identification placed in a position that is plainly legible and visible from the street or road fronting the property. These numbers shall be Arabic numbers or alphabetical letters. Numbers shall be a minimum 4 inches high with a minimum stroke width of 0.5 inch. Where access is by means of a private road and the building cannot be viewed from the public way, a monument, pole, or other sign or means shall be used to identify the structure. Address numbers shall be visible under low light conditions and evening hours. Provide illumination to address numbers to provide visibility under all conditions. Address signs are available through the Deschutes Rural Fire Protection District #2. An address sign application can be obtained from the City of Bend Fire Department website or by calling 541-388-6309 during normal business hours. • A KNOB 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 KNOXO 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 Building Safety Division: On May 8, 2019, Randy Scheid, Building Safety Director, submitted the following comments. 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. Mr. Scheid provided several applicable sections from the Oregon Revised Statutes (ORS) and Oregon Administrative Rules (OAR). Due to the length of the documents, they are incorporated herein by reference. The applicable sections included the following: ORS 455.680, Building codes related to recreation parks or camps, license, and rules ORS 446.310 to 446.350, Regulations regarding tourist facilities Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 8 000583-MA OAR 918-650, Building codes regarding recreation parks and organizational camps On December 20, 2019,4 December 23, 2019,5 and December 30, 2019, Randy Scheid provided additional comments concerning OAR 918-650 with respect to the second application for modification of application. Mr. Scheid again provided several applicable sections from the ORS and OAR. Due to the length of the documents, they are incorporated herein by reference. These comments generally addressed the requirements set forth in OAR 918- 650-0050, Toilets, which states: (1) Toilet facilities must be provided in every recreation park or organizational camp. They must be convenient and accessible and must be located within 500 feet of any recreational vehicle space or camping site not provided with an individual toilet facility or sewer connection. EXCEPTION: The requirement for toilets in picnic parks, campgrounds and organizational camps may be waived by the regulating authority for areas not accessible by road. (2) (a) Sanitary facilities must be as required in Table 3-RV; (b) Toilet Bowls. Toilet bowls for public use must be elongated bowls with open -front seats, Any room with flush toilets must be provided with a floor drain as required in the Oregon Plumbing Specialty Code; (c) Signs. Toilets must either be marked for the designated sex or be provided with a privacy lock. If not apparent, the location of toilets must be indicated by appropriate direction signs. (d) Flush Toilets and Showers. Flush toilets and showers and the buildings containing them must be constructed in accordance with the State Building Code; (e) Unisex Toilets. Toilet facilities designed to serve an occupant load of 15 persons or less may serve both sexes. Such toilet facilities must be equipped with a urinal. Table 3-RV, Sanitary Facilities (OAR 918-650-0050) (a copy of which is included in the record) requires a specified number of toilets and sanitary facilities (also referred to as lavatories) for recreation parks based on the number of picnic, camping or parking spaces. As reflected in Table 3-RV, where that latter number is 1-15, the number of toilets required is 2 toilets and 2 lavatories. 4 Mr. Scheid's December 20, 2019 email was in response to an inquiry from Martha Shields, Deschutes County Environmental Permit Technician, inquiring as to what the plumbing code requires for a campground facility. Ms. Shields's email of the same date to Mr. Scheid states, "What does the plumbing code require for a camp ground facility? I have gone in great detail what ES will require. Advised the Health Department (John Mason) will also do a review and that the Planning Division will have its own requirements." 5 Mr. Scheid forwarded to staff a December 23, 2019 email to and from Anthony Rocco and Eric McMullen, Oregon Building Codes Division, inquiring about the requirements of Table RV-3 for toilets/sanitary facilities for campgrounds, per OAR 918-650-0050. This email is included in the record. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 9 000583-MA In a December 30, 2019 email to Aaron Lafkey, Mr. Scheid wrote, in response to Mr. Lafkey's questions regarding what toilet facilities are required for a campground: Aaron, OAR's are state law and as the language in 918-650-0050(2)(a) indicates, The campground itself, if approved, would need to meet the minimum requirements of Table 3-RV for sanitary facilities. Chapter 29 of the OSSC would come into effect if the applicant is proposing a structure. Changes to Chapter 918, Division 650, OAR's would be through the Building Codes Division in Salem. Deschutes County Environmental Health Department: John Mason, Public Health Specialist, provided the following comments on May 13, 2019. The proposed RV park accommodations will need to follow the Oregon Administrative Rules 333, Division 31 rules for operating the Recreational Park. No Deschutes County Environmental Health Division plan review is required for this. An operating license must be secured before opening the facility to public use. A pre -opening inspection is required. A complete copy of the Division 31 rules is available at the Deschutes county Environmental Health web page www. deschutes. orglhealth/paeeltour,'st-facilities. Todd Cleveland, Environmental Health Supervisor, presented information to the applicant and staff on October 16, 2019, regarding the proposed non -water carried waste facility. His email is quoted below. This information impacts the overall design of the proposed campground and its wastewater treatment options: Doug, I have been looking at the proposed system and communicating with Oregon DEQ about this proposal. While I was doing so, I also checked Deschutes County Code. This proposed non -water carried system meets the definition of a Privy, therefore, under DCC 13.08.020 we cannot permit this proposal. The site evaluation that is currently pending can be evaluated for a proper onsite wastewater treatment system with more information regarding potential wastewater generated. I'm not sure how this impacts your overall proposal, but it would need an onsite wastewater treatment system. 13.08.020. Construction of Pit Privies Prohibited. The construction of a pit privy after the effective date of the ordinance codified in DCC 13.08 shall not be permitted, DCC 13.08.010 notwithstanding. Todd Cleveland, Environmental Health Supervisor Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 10 000583-MA Deschutes County Environmental Soils Division: On October 1, 2019, Larry Howard, R.E.H.S., submitted an email to the applicant in relation to Site Evaluation 247-19-001217-EVAL for the proposed campground. The email states: Good morning to you all. There are issues preventing me from issuing the site evaluation report for the subject line project. Please address these issues in written format, complete with any necessary construction plans, and return the information to me for review. The site evaluation will be placed in "needing additional information" status. What is meant by "nonwater-carried toilet (2 seater) diversion system: and "split waste system"? These comments appear without explanation in hand written format on a yellow stationary sheet. Rules for Split Waste Method can be found at OAR 340-071-0320. Rules for Nonwater-Carried Systems can be found at OAR 340-071-0330. In addition, constructions [sic] standards that may be applicable depending on what you are proposing can be found at OAR 340-073-0065 and 0075. Please read these rules along with any other applicable rules and provide this office with a detailed written explanation of what you are proposing along with any applicable construction details and drawings. Your detailed written submittal will be reviewed to ensure that all applicable rules are addressed. After your submittal is reviewed, the site evaluation will be issued or you will be contacted for further explanation. I will be out of the office from 10102119 to 10/10/19 but / have included my superior, Todd Cleveland and coworker Kiley Rucker-Clammons in the email string. Thank you. Mr. Howard sent a letter to the applicant on November 8, 2019, providing the results of a site evaluation conducted on the subject property for an onsite wastewater treatment system. The site was evaluated on November 7, 2019 and was found suitable to install a "System" as defined in Oregon Administrative Rules for Onsite Wastewater Treatment Systems, Chapter 340, Division 71. Minimum System Requirement System Type: Standard Maximum Design Flow (gallon per day) 1500 gpd Tank Size 3000 gallons Minimum Trench Length 1000 linear feet Maximum Depth 24 inches Minimum Depth 18 inches The November 8, 2019 letter includes 6 conditions of approval: 1. The system is sized for a maximum sewage flow of 1500 gallons per day 2. The area approved for the system is very specific. The land surface in the vicinity of the approved site must not be altered. Any alteration of the Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 11 000583-MA approved site or placement of a well within 100 feet of the approved site may invalidate this approval. Technical rule changes will not invalidate a favorable site evaluation, but may require use of a different type of system. 3. A permit must be obtained from Deschutes County prior to the installation of the system. Application for a construction permit must be accompanied by an accurately drawn plan showing the layout and components of the system. The plan must show the following pertinent information including: a. A scaled construction detail drawing for the proposed system. b. The soil absorption design and layout, including elevations, for the initial and reserve systems. C. The proposed structure. d. All other structures, wells waterlines, driveways, property line setbacks and property dimensions. e. Accurately show the test pit locations. f. Setbacks of proposed system and reserve system from proposed and existing structures. g. Follow the enclosed guidelines (Site Evaluation Field Inspection Form). Consult a licensed Department of Environmental Quality installer or a consultant if you need assistance. Inaccurate or incomplete construction details will require revisions and cause delays. 4. Additional items that are required for Alternative Treatment Technology (ATT) system permit applications are: a. A copy of the service contract between the authorized maintenance service provider and the property owner. b. Information regarding the specific ATT with elevations of specific components such as the treatment unit, pump valves, floats, tanks and soil absorption system. C. Profile of the proposed system in a way that shows the State DEQ approved installation method proposed. d. List of materials for the proposed system. NOTE: Each manufacturer certifies installers for their ATT systems. 5. This site evaluation approval does not guarantee that land development permits can be issued. The application [sic] must obtain land use approval from the Deschutes County Planning Division before Deschutes County Environmental Soils can issue permits. 6. Additional requirements and/or comments: a. Drainfield is sized at 100' per 150 gallons per day flow. 1500 GPD/150 = 10. 10x100 = 1000 lineal feet of standard drainfield. Provide the elevation of the tank and at the beginning, middle and end of each drainline on the septic application site plan. Base the distribution method on the provided elevations. The max depth is 24" and is based on the minimum restrictive depth found in each approved area. b. All commercial tanks must be fitted with an effluent filter. Daily flow is based on 15 spaces with a max of 4 persons per space at 25 gallons per person. 15x4 = 60. 60x25 = 1500 gallons per day (GPD). Tank capacity is twice the daily flow. 1500x2 = 3000 gallon tank capacity. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 12 000583-MA The DEQ will review the county's report and visit the site to determine the report's compliance with the applicable rules. A variance from the rules may also be requested through the DEQ. For further information regarding a report review or a variance to DEQ rules, please contact the Oregon Department of Environmental Quality. Deschutes County Transportation Planner: On May 14, 2019, Peter Russell, Senior Transportation Planner submitted the following comments. I have reviewed the transmittal materials for 247-19-000361-CU/362- SP/363-LM for 28-site campground on approximately 9.5 acres in the Multiple Use Agricultural (MUA-10) and Landscape Management (LM) zones at 64061 N. Highway 97, aka County Assessor Map 17-12-04, Tax Lot 800. The most recent edition of the Institute of Traffic Engineers (ITE) Trip Generation Handbook indicates a Campground/Recreational Vehicle Park (Land Use 416) does not have weekday trip generation rates but does indicate 0.27 trips per p.m. peak hour. Typically, p.m. peak hour traffic is 10% of weekday traffic. The submitted traffic analysis assumes that ratio and estimates 80 weekday trips from the site. Staff finds this acceptable and the study meets the Site Traffic Report requirements of Deschutes County Code (DCC) at 18.116.310(C)(3)(b). Staff agrees with the analysis, conclusions, and recommendations of the submitted traffic report dated May 2, 2019. The applicant needs to either provide proof of or be required as a condition of approval to obtain a driveway permit from Deschutes County to comply with DCC 17.48.210(A). Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of $4,240 per p.m. peak hour trip. The traffic study indicates the site will generate 8 new p.m. peak trips. The resulting SDC is $33,920 ($4,240 X 8). The SDC assumes the campground is open year-round. 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. If you have any questions, please let me know. Thanks Oregon Department of Transportation (ODOT): On June 11, 2019 Don Morehouse, Senior Transportation Planner, submitted the following comments. ODOT Response Thank you for sending agency notice of an application for a Conditional Use and Site Plan to establish a Campground in the Multiple Use Agricultural (MUA-10) Zone and Landscape Management (LM) Combining Zone. • This proposed development lies within the ODOT US 97. Redmond to Bend Safety Project. Please contact Wade Luckman Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 13 000583-MA (Construction Project Manager) at 541-388-6087 for any project related information. The existing access point is presumed to be permitted (PTBP) and must be designated as right -in, right out (BIRO) only. Permits and Agreements to Work in State Right of Wav 0 An ODOT Miscellaneous/Construction Permit must be obtained for all work in the highway right of way. Please contact Permit Specialist, Aaron Smith, at 541-388-6054 or Permit Specialist, Tyler Swanson, at 541-388-6426 to obtain this. El A drainage study prepared by an Oregon Registered Professional Engineer is usually required by. ODOT if the development has the potential to impact ODOT highway drainage, to assure life, safety and that Oregon Drainage Law is being upheld. The applicant must provide ODOT District 10 with a preliminary drainage plan showing impacts (or lack of impacts) to the highway right of way. If it can be determined from preliminary drawings there will be no impacts to the highway drainage system then a drainage study will not be required. If a drainage study is required, all requirements for drainage studies can be found in the ODOT Hydraulics Manual. 0 An ODOT Miscellaneous Permit is required for connection to state highway drainage facilities. Connection will only be considered if the site's drainage naturally enters ODOT right of way. Swalley Irrigation District: Jer Camarata, General Manager, provided the following comments on May 13, 2019 The property has appurtenant to it 6 acres of certificated senior water rights delivered and owned by Swalley ID. Proposed development plans overlap the mapped water rights as shown on the attached reference map and will need to be formally re -mapped on the property or legally quitclaimed back to the District should these proposals be authorized. Owner should contact Kathy Ferguson at Swalley ID to arrange a meeting to discuss the water rights, and development plans thereof, as soon as practicable. The following agencies did not respond or had no significant comments: Avion Water Company, Bend Growth Management Department, Central Electric Cooperative, Deschutes County Assessor, Deschutes County Road Department, Deschutes County Property Address Coordinator, Oregon Department of Environmental Quality (DEQ), Oregon Deputy State Fire Marshal, Pacific Power and Light, and Watermaster- District 11. PUBLIC COMMENTS: The Planning Division sent notice of this proposal to all property owners within 250 feet of the subject property and subsequently sent notice of the application for modification of application to all property owners within 250 feet of the subject property on December 19, 2019. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 14 000583-MA Comments were received primarily by neighboring property owner, Cramer Farms, expressing concerns related to the proposal, which are summarized below. • Rural character of the area (e.g. increased density6 with a campground use) • Sanitation facility (e.g. toilets) • Adequacy of drain field to serve campground and required amenities (including lavatories/showers) • Inadequate toilet facilities design • Failure to show septic tank and dry well locations on site plan • Separation distances between proposed campsites • Number of proposed campsites • Removal of existing, significant trees in setback buffer • Outdoor amenity and recreational use (e.g. natural canyon) • Access road (e.g. width and surface material) • Traffic impacts (e.g. dust impacts) • Noise impacts • Wildfire potential • Visual impacts (e.g. lighting and other uses) • Uses occurring within setbacks (e.g. pathways and outdoor amenity) • Compliance with OAR 918.650 • Bicycle parking requirements • Trespass potential • Fencing/Screening • Events potential • Property overlap NOTICE REQUIREMENT: The applicant complied with the posted notice requirements of Section 22.24.030(B) of Deschutes County Code (DCC) Title 22. The applicant submitted a Land Use Action Sign Affidavit, dated May 8, 2019 indicating the applicant posted notice of the land use action on May 8, 2019. REVIEW PERIOD: The Conditional Use, Site Plan, and Landscape Management applications were submitted to the Planning Division on May 2, 2019. An incomplete application letter was sent on May 31, 2019. An application for modification was submitted on December 13, 2019. Pursuant to DCC 22.20.055(B), a modification of an application restarts the 150-day land use clock. Based on this information, the 150th day on which the County must issue a final local land use decision is May 11, 2020. REVIEW HISTORY: On September 11, 2019, the Hearings Officer presided over a public hearing on the applicant's applications for conditional use permit, site plan approval and original application for modification of application (file nos. 247-19- 6 The submitted comments argue that the proposed campground with its 15 sites creates an urban use not permitted in rural area of the county and thus not in compliance with Goal 14, Urbanization. Campground uses were previously contemplated with their adoption into the County Zoning Ordinance. The Hearings Officer does not find Goal 14 applicable in this case. However, the density issue is addressed in regards to compatibility with existing and projected uses on surrounding properties in DCC 18.128.015(B). Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 15 000583-MA 000361-CU,-000362-SP,-000363-LM, and-000583-MA). The record was left open following the public hearing for post -hearing submittals. On October 18, 2019, the Hearings Officer received a request from Deschutes County to reopen the post -hearing comment period on the applications to allow for the submission of additional evidence and analysis pertaining exclusively to the toilet and wastewater facility proposed for the campground. The Hearings Officer issued an Order Re -Opening the Record, dated October 21, 2019 ("Order Reopening Record") and the County mailed the Order to Interested Persons on that same date. The County received a Request to Reconsider and Revise Order Reopening the Record ("Reconsideration Request") from Cramer Farms, LLC, dated October 23, 2019. The Reconsideration Request sought the following relief: (1) the open record period set forth in the Order Reopening Record should be revised to give Interested Persons until October 29, 2019 to rebut the applicant's legal argument concerning DCC 13.08; (2) the applicant should not be permitted to revise the site plan submitted with its application unless it submits a new application for modification of application consistent with DCC 22.20.055; (3) the Hearings Officer's order should reflect that the 150-day clock of ORS 215.427 should be tolled by ORS 197.763(6)(e) during the open record period, including a period for final argument by the applicant, unless waived. On October 24, 2019, the Hearings Officer entered an Order On Motion for Reconsideration of Order Reopening the Record ("Reconsideration Order"), which Order revoked the Order Reopening Record as follows: The applicant shall not be entitled to modify any aspect of the application that pertains to operating characteristics of the proposed use, including but not limited to the proposed waste disposal system, unless an application for Modification of Application is submitted consistent with DCC 22.20.055. If the applicant elects not to file an application for Modification of Application, the record shall be reopened solely on the limited issue of whether the proposed waste disposal system, as set forth in the application materials filed with the County and existing at the close of the record on October 9, 2019, complies with applicable criteria. The applicant shall notify the County no later than Monday, October 28, 2019 of any decision not to file an application for Modification of Application. On October 28, 2019, the applicant submitted a Request to Reconsider and Revise the Hearings Officer's Order for Reconsideration of Order Reopening Record on behalf of the applicant ("Second Reconsideration Request"). The applicant contended that the applicant did not have an opportunity to weigh in on Cramer Farm LLC's request to reconsider and revise the Order Reopening the Record dated October 21, 2019 because the applicant was not provided notice or an opportunity to respond to Cramer Farm's request. On October 29, 2019, the Hearings Officer issued an Order on Second Request for Reconsideration ("Order on Second Reconsideration"), which denied in part and granted in part the Second Reconsideration Request. The Order on Second Reconsideration affirmed the Reconsideration Order, except with respect to calculation of the 150-day clock. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 16 000583-MA On October 31, 2019, the Hearings Officer received a request from the applicant to extend the open record period to ensure any application for modification of application is complete and stating that the applicant would be willing to toll the clock for any such extension ('Request to Extend Reopened Record"). On November 1, 2019, the Hearings Officer entered an Order Extending Reopened Record Period, extending the open record period for twelve (12) days and noting that the applicant waived the 150-day clock for such period. On November 8, 2019, the Hearings Officer received a second request from the applicant to extend the open record period for a fourteen -day period for additional time to ensure any application for modification of application is complete and stating that the applicant would be willing to toll the clock for any such extension ("Second Request to Extend Reopened Record"). On November 8, 2019, the Hearings Officer entered a Second Order Extending Reopened Record Period, extending the open record period for fourteen (14) days and noting that the applicant waived the 150-day clock for such period ("Second Order Extending Reopened Record Period"). On November 26, 2019, the Hearings Officer received a third request from the applicant to extend the open record period for a fourteen -day period for additional time to ensure any application for modification of application is complete and stating that the applicant would be willing to toll the clock for any such extension ("Third Request to Extend Reopened Record"). On December 2, 2019, the Hearings Officer entered a Third Order Extending Reopened Record Period, extending the open record period for fourteen (14) days and noting that the applicant waived the 150-day clock for such period ("Third Order Extending Reopened Record Period"). On December 13, 2019, the applicant submitted an application for Modification of Application, file no. 247-19-000879-MA, for the purposes of changing the proposed non -water carried system to a septic system, pursuant to DCC 22.20.055. The application is supported by a burden of proof dated December 10, 2019 with exhibits. The applicant agreed to re -start the 150-day clock. The County has discretion to determine whether to require a public hearing and/or public notice and an opportunity to comment on the application for Modification of Application. DCC 22.20.055(C). On December 17, 2019, the applicant and Cramer Farms LLC each submitted correspondence to the County requesting an order on the following issues: (1) whether a public hearing should be held on the application for Modification of Application; (2) the scope of issues that may be addressed by interested parties with respect to the application for Modification of Application; and (3) deadlines associated with public comments on the application for Modification of Application. The Notice of Application mailed on December 19, 2019, concerning the December 13, 2019 modification application, included a schedule for public comments limited to matters addressed in the application for modification of application: (a) revisions to the site plan with respect to proposed toilets and features of restrooms; and (b) Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 17 000583-MA revisions to the site plan with respect to the proposed drain field and related issues (e.g. tree removal therefor). Public comments (summarized above) were timely submitted on or before January 10, 2020 and rebuttal public comments were timely submitted on or before January 17, 2020. The applicant waived final written argument. III. FINDINGS AND CONCLUSIONS: Title 22, Deschutes County Procedures Ordinance CHAPTER 22.20. REVIEW OF LAND USE APPLICATIONS Section 22.20.055. Modification of Application. A. An applicant may modify an application at any time during the approval process up until the close of the record, subject to the provisions of DCC 22.20.052 and DCC 22.20.055. FINDING: The applicant requested twice to modify the three applications during the review process of said applications (application for modification of application file no. 247-19-000583-MA and-000879-MA). Pursuant to the Hearings Officer's Third Order Extending Reopened Record Period, the record remained open at the time of the applicant's filing of its second application for modification of application (file no. 247-19-000879-MA), on December 13, 2019. The Hearings Officer finds this criterion is met. B. The Planning Director or Hearings Body shall not consider any evidence submitted by or on behalf of an applicant that would constitute modification of an application (as that term is defined in DCC 22.04) unless the applicant submits an application for a modification, pays all required modification fees and agrees in writing to restart the 150-day time clock as of the date the modification is submitted. The 150-day time clock for an application, as modified, may be restarted as many times as there are modifications. FINDING: The applicant submitted evidence on July 18, 2019 that the Planning Director determined to constitute a request for modification of the originally submitted applications for conditional use permit and site plan review, with associated landscape management review (file nos. 247-19-000361-CU,-000362-SP and - 000363-LM). The applicant submitted an application for the first requested modification (file no. 247-19-000584-MA) on July 24, 2019, paid all required modification fees and agreed in writing to restart the 150-day time clock as of the date the modification was submitted. The applicant submitted an application for the second requested modification (file no. 247-19-000879-MA) on December 13, 2019, paid all required modification fees and agreed in writing to restart the 150-day time clock as of the date the modification was submitted. The Hearings Officer finds this criterion is met. C. The Planning Director or Hearings Body may require that the application be re -noticed and additional hearings be held. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 18 000583-MA FINDING: The first requested modification application (file no. 247-19-000584-MA) was re -noticed, as discussed above. The Planning Director chose to process the first modification with a public hearing. A public hearing was held by the Hearings Officer on September 11, 2019. The second requested modification application (file no. 247-19-000879-MA) was re - noticed detailing the changes to the proposed campground's wastewater system from a non -water carried system to a septic system. The Hearings Officer chose to process the second modification without a public hearing, but with an invitation for public comment pursuant to a schedule established in the Notice of Application, dated December 19, 2019. D. Up until the day a hearing is opened for receipt of oral testimony, the Planning Director shall have sole authority to determine whether an applicant's submittal constitutes a modification. After such time, the Hearings Body shall make such determinations. The Planning Director or Hearings Body's determination on whether a submittal constitutes a modification shall be appealable only to LUBA and shall be appealable only after a final decision is entered by the County on an application. FINDING: The applicant submitted evidence on July 18, 2019 that the Planning Director found to constitute a modification. The evidence was submitted to the record prior to any scheduled public hearing. As noted previously, in order for the evidence to be considered, the applicant submitted an application for the modification on July 24, 2019. Following the public hearing, the applicant requested to submit evidence that the Hearings Officer determined to constitute a modification. The applicant submitted an application for modification of application, during the open record period, on December 13, 2019. Title 18, Deschutes County Zoning Ordinance CHAPTER 18.32. MULTIPLE USE AGRICULTURAL ZONE - MUA Section 18.32.010. Purpose. The purposes of the Multiple Use Agricultural Zone are to preserve the rural character of various areas of the County while permitting development consistent with that character and with the capacity of the natural resources of the area; to preserve and maintain agricultural lands not suited to full-time commercial farming for diversified or part-time agricultural uses; to conserve forest/ands for forest uses; to conserve open spaces and protect natural and scenic resources; to maintain and improve the quality of air, water and land resources of the County; to establish standards and procedures for the use of those lands designated unsuitable for intense development by the Comprehensive Plan; and to provide for an orderly and efficient transition from rural to urban land use. FINDING: The Hearings Officer finds that the purpose statement in DCC 18.32.010 does not impose criteria for approval. As stated in Freeland v. City of Bend, 45 Or LUBA 125, 130 (2003): Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 19 000583-MA Purpose statements in land use regulations are often generally worded expressions of the motivation for adopting the regulation, or the goals or objectives that the local government hopes to achieve by adopting the regulation. Where a purpose statement is worded in that manner, it does not play a direct role in reviewing applications for permits under the land use regulations. * * * In other cases, however, purpose statements can impose additional affirmative duties upon the local government that must be fulfilled. Approval or denial of the applications is based on the Hearings Officer's determination of whether the applicant has met its burden of proof with respect to each individual criterion for approval, discussed below. Nonetheless, the applicant submits that the proposal is consistent with the purpose of the MUA zone. The Hearings Officer sets forth the applicant's response to the purpose statement above in its December 10, 2019 burden of proof: The proposed use is consistent with purpose of the MUA Zone by preserving the rural character and natural resources in this area of Deschutes County. The proposal is for a 15-space campground -10 spaces for tents or small RVs and 5 yurt spaces. The total developed area is about one acre of land and is located generally near the center of a 9.53-acre parcel. All sites are back -in parking onto a 20-foot graveled dust free surface. A toilet, two-seater, will be provided. Yurt Site 5 will have paved ADA parking and access to restroom. Plans for the property also include upgrading the sprinkler system and increasing irrigation capacity and efficiency to continue current irrigated acres, while maintaining vegetation and habitat through parts of the proposed campground. Currently, Swalley Irrigation District water flows into the subject property to irrigate 6-acres of certified senior water rights from the south through a small open secondary canal that follows the southern fence -line heading east until reaching the pond on the south side of the property.' Water is then pumped from the pond into metal surface irrigation pipes. On April 18, 2019, the applicants' land use planner met with the district to go over the proposal and any applicable district and state water right requirements that need to be considered at this time. A May 13, 2019, email and attachment from Swalley Irrigation noted the proposed development overlapped the mapped water rights and the owner will need to have the property "formally re -mapped on the property or legally quitclaimed back to District should these proposals be authorized. " The owner has been in contact with the District before and during the application process, and will work with the District regarding any required re -mapping or quitclaiming of the water rights. There are no commercial forest uses or practices occurring on the subject property or adjacent properties. Only the occasional maintenance of the juniper trees located throughout the area. The canyon and rock features Piping of this smaller open canal is currently not in the works as it is not part of the district's main canal. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 20 000583-MA located on the property will be conserved as open space with a short trail for campers to walk and explore. The campground is for the most part self- contained and will not place a demand on (or negatively impact) the quality of air, water or land resources of Deschutes County. The subject property is situated in an area of the county that is between urban uses of Bend, to the south, and rural uses to the north, east and west. The proposed campground provides for an orderly and efficient transition from rural to urban land uses by having camping in a semi -rural setting that is near Bend and is on the states' [sic] transportation system. Section 18.32.030. Conditional Uses Permitted. The following uses may be allowed subject to DCC 18.128: 1. Private parks, playgrounds, hunting and fishing preserves, campgrounds, motorcycle tracks and other recreational uses. FINDING: The applicant submitted a Conditional Use application to establish a private campground, which is a use conditionally allowed in the MUA-10 zone, subject to DCC 18.128. The Hearings Officer notes that definitions set forth in DCC 18,04.030 do not establish standards for approval of specific applications. See ORS 215.416(8)(a) ("Approval. or denial of a permit application shall be based on standards and criteria which shall be set forth in the zoning ordinance or other appropriate ordinance or regulation of the county and which shall relate approval or denial of a permit application to the zoning ordinance and comprehensive plan for the area in which the proposed use of land would occur and to the zoning ordinance and comprehensive plan for the county as a whole"); see also Hegele v. Crook County, 56 Or LUBA 1 (2008) (ruling that the definition of "conflicting uses" in the county code is not an approval criterion that the county was required to find was met). Nonetheless, the definition of "campground" is reviewed in determining whether the proposed use is an allowable conditional use. DCC 18.04.030 includes the following definition of campground: "Campground" means an area devoted to overnight, temporary use for vacation, recreational or emergency purposes, but not for residential purposes and is established on a site or is contiguous to lands with a park or other outdoor amenity that is accessible for recreational use by the occupants of the campground. It is also where facilities are provided to accommodate camping for two or more tents, travel trailers, yurts or recreational vehicles. A campground shall not include campsite utility hook-ups, intensely developed recreational uses such as swimming pools or tennis courts or commercial activities such as retail stores or gas stations. A private campground may provide yurts for overnight camping. The yurt shall be located on the ground or on a wood floor with no permanent foundation. No more than one-third or a maximum of 10 campsites, whichever is smaller, may include a yurt. Overnight temporary use in the same campground by a camper or camper's Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 21 000583-MA vehicle shall not exceed a total of 30 days during any consecutive 6 month period. This definition is broken down as follows: a. The campground is an area devoted to overnight temporary use for vacation, recreational or emergency purposes but not for residential purposes. The applicant proposes a campground for overnight, temporary use for vacation and recreation purposes, not for residential purposes. The Hearings Officer finds the proposal meets this aspect of the definition. b. The campground is established on a site or is contiguous to lands with a park or other outdoor amenity that is accessible for recreational use by the occupants of the campground. To meet the definition of campground, the site must include a park or other outdoor amenity because the subject property is not contiguous to lands with a park or other outdoor amenity. The outdoor amenities, according to the applicant, include a natural canyon on the property and a proposed communal area. The Hearings Officer notes that there is a question as to whether the proposal meets this aspect of the definition with respect to an on -site park or other outdoor amenity. I find the proposal may meet this aspect of the definition. The applicable criteria that address this aspect of the definition are set forth in DCC 18.128.320(A), analyzed in the findings below. c. The campground is where facilities are provided to accommodate camping for two or more tents travel trailersyurts or recreational vehicles. The proposed campground will feature 15 overnight, temporary use campsites, which will include 10 tent/camper/trailer sites and 5 yurt sites. The Hearings Officer finds the proposal meets this aspect of the definition. d. If the campground providesyurts for overnight camping, the yurts shall be located on the ground or on a wood floor with no permanent foundation. There shall be no more than one-third or a maximum of 10 campsites, whichever is smaller, that includes a vurt. The number of yurts proposed is equal to one-third of the overall sites provided. The yurts will located on a wood floor with no permanent foundation. The Hearings Officer finds the proposal meets this aspect of the definition. e. The campground shall not include campsite utility hook-ups intensely developed recreational uses such as swimming pools or tennis courts or commercial activities such as retail stores or gas stations. The proposed tent/camper/trailer sites will not include utility hook-ups nor will the campground provide intensely developed recreational uses. The Hearings Officer finds the proposal meets this aspect of the definition. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 22 000583-MA f. Overnight temporary use in the same campground by a camper or camper's vehicle shall not exceed a total of 30 days during any consecutive 6-month period. The definition of campground allows the temporary use by a camper not to exceed a total of 30 days during any consecutive 6-month period. As discussed above, however, the definition does not establish standards for approval of the applications. Even if it did, however, the specific standards for campgrounds set forth in DCC 18.128.320(D), which provide an allowance of use up to 30 days in any 60-day period, applies. See ORS 174.020(2) ("When a general provision and a particular provision are inconsistent, the latter is paramount to the former so that a particular intent controls a general intent that is inconsistent with the particular intent"). The applicable criteria are analyzed in the findings below. The Hearings Officer finds the proposal meets this aspect of the definition Section 18.32.040. Dimensional Standards. In an MUA Zone, the following dimensional standards shall apply. D. Building height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed by DCC 18.120.040. FINDING: According to the application materials, no building or structure will exceed the 30-foot height limitation. The Hearings Officer finds this criterion may be met with a condition of approval. Section 18.32.050, Yards. A. The front yard setback from the property line shall be a minimum of 20 feet for property fronting on a local street right of way, 30 feet from a property line fronting on a collector right of way, and 80 feet from an arterial right of way unless other provisions for combining accesses are provided and approved by the County. FINDING: The subject property is adjacent to Highway 97 along its eastern boundary. Highway 97 is designated a primary highway (arterial) right-of-way, which requires an 80-foot front yard setback. Structures that are proposed with the campground, and thus subject to yard requirements, include yurts, restroom structure, enclosed trash area, and gazebo. As discussed in the findings below, the applicant has not proposed a shower facility. The proposed structures will be centrally located on the property and set back approximately 740 feet from the Highway 97 right-of-way. A minimum setback buffer of 100 feet from both the north and south side yards and the west rear yard (required for all campgrounds per DCC 18.128.330) is proposed for all proposed structures, as shown on the Site Plan. The Hearings Officer finds this criterion may be met with a condition of approval. B. Each side yard shall be a minimum of 20 feet. For parcels or lots created before November 1, 1979, which are one-half acre or less in size, the side yard setback may be reduced to a minimum of 10 feet. For parcels or lots Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 23 000583-MA adjacent to property receiving special assessment for farm use, the adjacent side yard for a dwelling shall be a minimum of 100 feet. C. Rear yards shall be a minimum of 25 feet. Parcels or lots with rear yards adjacent to property receiving special assessment for farm use, the rear yards for a dwelling shall be a minimum of 100 feet. FINDING: The applicant is not proposing a single-family dwelling and thus the minimum required side and rear yard setback shall be 20 feet and 25 feet, respectively. The proposed structures will be located over 100 feet from the north and south side property boundaries, and over 100 feet from the west rear boundary, consistent with these criteria. However, campgrounds are subject to more restrictive setbacks than those established for the MUA-10 Zone. Those setbacks are addressed below in DCC 18.128.330. D. The setback from the north lot line shall meet the solar setback requirements in DCC 18.116.180. FINDING: Based on the location of the proposed structures in relationship to the north lot line, together with the height of the structures proposed to be 30 feet or less, the Hearings Officer finds that the proposed setback from the north lot line will meet the solar setback requirements in DCC 18.116.180. This criterion is met. E. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. FINDING: The Building Safety Division will determine if any greater setbacks are required during building permit review. The Hearings Officer finds this criterion may be met with a condition of approval. CHAPTER 18.84. LANDSCAPE MANAGEMENT COMBINING ZONE Section 18.84.020. Application of Provisions. The provisions of this chapter shall apply to all areas within one-fourth mile of roads identified as landscape management corridors in the Comprehensive Plan and the County Zoning Map. The provisions of this chapter shall also apply to all areas within the boundaries of a State scenic waterway or Federal wild and scenic river corridor and all areas within 660 feet of rivers and streams otherwise identified a landscape management corridors in the comprehensive plan and the County Zoning Map. The distance specified above shall be measured horizontally from the centerline of designated landscape management roadways or from the nearest ordinary high water mark of a designated landscape management river or stream. The limitation in this section shall not unduly restrict accepted agricultural practices. FINDING: Highway 97 is identified on the County Zoning Map as the landscape management feature. This roadway is adjacent to the subject property along its eastern boundary. The building sites for the proposed structures and the entire Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 24 000583-MA property falls within this Landscape Management Combining Zone. Therefore, the Hearings Officer finds the provisions of this chapter are applicable. Section 18.84.040. Uses Permitted Conditionally. Uses permitted conditionally in the underlying zone with which the LM Zone is combined shall be permitted as conditional uses in the LM Zone, subject to the provisions in DCC 18.84. FINDING: A campground is conditionally allowed in the MUA-10 Zone. Therefore, the Hearings Officer finds the proposed use is also permitted conditionally in the LM Zone. Section 18.84.050. Use Limitations. A. Any new structure or substantial alteration of a structure requiring a building permit, or an agricultural structure, within an LM Zone shall obtain site plan approval in accordance with DCC 18.84 prior to construction. As used in DCC 18.84 substantial alteration consists of an alteration, which exceeds 25 percent in the size or 25 percent of the assessed value of the structure. FINDING: The applicant has requested site plan approval as part of the proposal and states that all required state and county permits will be obtained prior to any excavation or construction of the campground. The applicant's burden of proof addresses LM review for all proposed structures. The applicant does not propose substantial alteration of any structures existing on the subject property. The Hearings Officer reviews all proposed new structures against the applicable LM standards. B. Structures which are not visible from the designated roadway, river or stream and which are assured of remaining not visible because of vegetation, topography or existing development are exempt from the provisions of DCC 18.84.080 (Design Review Standards) and DCC 18.84.090 (Setbacks). An applicant for site plan review in the LM Zone shall conform with the provisions of DCC 18.84, or may submit evidence that the proposed structure will not be visible from the designated road, river or stream. Structures not visible from the designated road, river or stream must meet setback standards of the underlying zone. FINDING: The applicant submits that the proposed campground will not be visible from Highway 97 and that Design Review in DCC 18.84.080(A)-(I) is not required. It states that structural aspects of the campground located approximately in the western half of the property will not be visible from the designated roadway based on existing vegetation, topography, and existing development. Nonetheless, the applicant has addressed Design Review criteria in DCC 18.84.080(A)-(I) in its burden of proof in an exercise of caution. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 25 000583-MA Section 18.84.080. Design Review Standards. The following standards will be used to evaluate the proposed site plan: A. Except as necessary for construction of access roads, building pads, septic drainfields, public utility easements, parking areas, etc., the existing tree and shrub cover screening the development from the designated road, river or stream shall be retained. 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. FINDING: The construction of the proposed structures will require removal of vegetation within the building footprint only. The applicant states that the locations of campsites, access road and facilities have been carefully placed to retain all, if not most, of the existing juniper trees as possible. All other trees outside of the roof drip line will be retained. The applicant states that all existing trees and shrubs located within the control of the landowner that provide a visual screen of the proposed campground from Highway 97 will be retained and maintained in a healthy manner, except for the maintenance or removal of dead, diseased or hazardous vegetation. The applicant submitted a Google Earth image showing the vegetation areas, outlined in blue, that contribute to visual screening of the proposed use. The Hearings Officer finds this criterion may be met with a condition of approval. B. It is recommended that new structures and additions to existing structures be finished in muted earth tones that blend with and reduce contrast with the surrounding vegetation and landscape of the building site. C. No large areas, including roofs, shall be finished with white, bright or reflective materials. Metal roofing material is permitted if it is in non - reflective and of a color which blends with the surrounding vegetation and landscape. This subsection shall not apply to attached additions to structures lawfully in existence on April 8, 199Z unless substantial improvement to the roof of the existing structure occurs. FINDING: The applicant states that all new campground structures will be sided, finished or painted in muted earth tone colors that blend with and reduce contrast with the surrounding vegetation (junipers and sage) and landscape (lava rock). The only campground structures being proposed are the toilets and enclosed fenced trash receiving area, and the five yurts and gazebo. The applicant has not proposed a shower facility, as discussed below. The roofs and sides of the yurts, toilets and gazebo will be in muted earth tone colors or non -painted wood that blend with surrounding features and trees. The trash area will be enclosed with wooden repurposed juniper fence materials. Proposed colors/design for the toilet siding and yurts are attached as Exhibit M to the applicant's revised burden of proof dated December 10, 2019. The applicant is agreeable to a condition of approval that any new campground roofing of buildings and structures will not be finished in white, bright or reflective materials and will be of a color which blends with surrounding vegetation and Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 26 000583-MA landscape. This includes the material used for the proposed yurts and gazebo. The Hearings Officer finds these criteria may be met with a condition of approval. D. Subject to applicable rimrock setback requirements or rimrock setback exception standards in Section 18.84.090, all structures shall be sited to take advantage of existing vegetation, trees and topographic features in order to reduce visual impact as seen from the designated road, river or stream. FINDING: The proposed structures will be located in an area that has no rimrock. Vegetation and topographic features exist between the building site and the road that will be preserved to minimize the visual impact on Highway 97. The Hearings Officer finds this criterion is met. E. Structures shall not exceed 30 feet in height measured from the natural grade on the side(s) facing the road, river or stream. Within the LM zone along a state scenic waterway or federal wild and scenic river, the height of a structure shall include chimneys, antennas, flag poles or other projections from the roof of the structure. This section shall not apply to agricultural structures located at least 50 feet from a rimrock. FINDING: The applicant indicates that all structures associated with the proposed campground will be no more than 30 feet in height. The Hearings Officer finds this criterion may be met with a condition of approval. F. New residential or commercial driveway access to designated landscape management roads shall be consolidated wherever possible. FINDING: Highway 97 is designated as the landscape management corridor. The subject property includes only one driveway access to the designated corridor. The applicant proposes to use the existing access point for the campground use and is not proposing a new driveway access. The Hearings Officer finds this criterion will be satisfied. G. New residential exterior lighting, including security lighting, shall be sited and shielded so that it is directed downward and is not directly visible from the designated road, river or stream. FINDING: The applicant is proposing a campground and not a residential use. Therefore, the Hearings Officer finds this criterion does not apply. Nonetheless, the applicant notes that, with the exception of some minimal solar battery lighting at the communal area and toilets, the applicant is proposing a campground environment without the use of outdoor or street lighting. The applicant states the location and direction of said lighting will be sited and shielded so that light is directed downward and not directly visible from Highway 97 or neighboring properties. H. The Planning Director or Hearings Body may require the establishment of introduced landscape material to screen the development, assure compatibility with existing vegetation, reduce glare, direct automobile and Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 27 000583-MA pedestrian circulation or enhance the overall appearance of the development while not interfering with the views of oncoming traffic at access points or views of mountains, forests and other open and scenic areas as seen from the designated landscape management road, river or stream. Use of native species shall be encouraged. FINDING: The applicant is proposing to retain the existing trees and other vegetation between the proposed structures and the highway. Accordingly, the Hearings Officer finds that establishment of introduced landscape material is not necessary. The Hearings Officer finds that retaining the existing vegetation between the roadway and the structures, in addition to the vegetation and development on the adjacent tax lots will be sufficient to screen the proposed development from the roadway such that this criterion is met. The applicant notes that the required landscaping area between and around all parking spaces (under DCC 18.124.070) will have a width of at least 5 feet. This criterion may be met with a condition of approval to require to applicant to use native vegetation species, if the applicant chooses to introduce landscaping on the property. 1. No signs or other forms of outdoor advertising that are visible from a designated landscape management river or stream shall be permitted. Property protection signs (no trespassing, no hunting, etc.) are permitted FINDING: The subject property is not adjacent to or near a landscape management river or stream. The Hearings Officer finds this criterion is not applicable to outdoor advertising signs used for the proposed campgro! end. The applicant indicates it is proposing a campground sign near the driveway entrance off of the highway. The applicant states it will work with ODOT and Consumer and Business Services to assure the sign complies with all highway and travelers' regulations for signage. The Hearings Officer notes that a campground sign and property protection signs (no trespassing, no hunting, etc.) are permitted, provided that, as discussed below in DCC 15.08.070, no sign shall be erected, structurally altered, or relocated until a sign permit has been issued. J. A conservation easement as defined in Section 18.04.030, "Conservation Easement" and specified in Section 18.116.220, shall be required as a condition of approval for all landscape management site plans involving property adjacent to the Deschutes River, Crooked River, Fall River, Little Deschutes River, Spring River, Squaw Creek and Tumalo Creek. Conservation easements required as a condition of landscape management site plans shall not require public access. FINDING: The subject property is not adjacent to a river. Therefore, the Hearings Officer finds this criterion is not applicable. Section 18.84.090. Setbacks. A. Except as provided in DCC 18.84.090, minimum setbacks shall be those established in the underlying zone with which the LM Zone is combined. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 28 000583-MA FINDING: The underlying zone for the building site is MUA-10. Minimum setbacks in the underlying zone are addressed in foregoing findings. The Hearings Officer notes that special use setbacks for campground development in the LM Zone under DCC 18.128.320(D)(10)(c) are addressed below. B. Road Setbacks. All new structures or additions to existing structures on lots fronting a designated landscape management road shall be set back at least 100 feet from the edge of the designated road right-of-way.... FINDING: The subject property is adjacent to Highway 97 along its eastern boundary. Highway 97 is a designated landscape management corridor. Structures that are proposed with the campground will be set back over 300 feet from the highway. The Hearings Officer finds this criterion may be met with a condition of approval. C. River and Stream Setbacks. All new structures or additions to existing structures shall be set back 100 feet from the ordinary high water mark of designated streams and rivers or obtain a setback exception in accordance with DCC 18.120.030. For the purpose of DCC 18.84.090, decks are considered part of a structure and must conform with the setback requirement. The placement of on -site sewage disposal systems shall be subject to joint review by the Planning Director or Hearings Body and the Deschutes County Environmental Health Division. The placement of such systems shall minimize the impact on the vegetation along the river and shall allow a dwelling to be constructed on the site as far from the stream or lake as possible. Sand filter systems may be required as replacement systems when this will allow a dwelling to be located further from the stream or to meet the 100-foot setback requirement. FINDING: The subject property is not adjacent to or near a river. The Hearings Officer finds this criterion is not applicable. D. Rimrock Setback. New structures (including decks or additions to existing structures) shall be set back 50 feet from the rimrock in an LM Zone. An exception to this setback may be granted pursuant to the provisions of DCC 18.84.090(E). FINDING: There is no rimrock in the project vicinity. The Hearings Officer finds this criterion is not applicable. CHAPTER 18.128. CONDITIONAL USES Section 18.128.015. General Standards Governing Conditional Uses. Except for those conditional uses permitting individual single-family dwellings, conditional uses shall comply with the following standards in addition to the standards of the zone in which the conditional use is located and any other applicable standards of the chapter. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 29 000583-MA A. The site under consideration shall be determined to be suitable for the proposed use based on the following factors: 1. Site, design and operating characteristics of the use; FINDING: The applicant is proposing a campground on the subject property. The following analysis considers the site, design, and operating characteristics of the use. Site and Design The subject property is 9.53 acres in size and is irregular in shape. The property is adjacent to Highway 97 to the east. The property has varying terrain and native vegetation throughout. Development on -site includes a single-family dwelling established in 1957, and various accessory structures, a pond, and an access road. The property also includes 6 acres of irrigation water right. The applicant submits that the site is ideally suited for a campground because it is on a property with a unique outdoor amenity, along a major state highway and remote from traffic and congestion. The applicant also states that the site is ideally suited for the proposed use because it meets or can meet all site characteristics required to operate as a campground in the MUA and LM zones. Specifically, the campground adheres to stringent setback requirements, is designed to preserve vegetative buffers between adjacent properties, and must adhere to County requirements for noise. The proposed location of the campground spaces, y� urts, access road and facilities have been designed to minimize, if not avoid, any permanent disturbance to natural and physical features located on the site. As discussed below, the applicant has not proposed a location for a shower facility. The operating characteristics or the ability for vehicles to maneuver the campground while retaining the on -site natural features and trees, along with campsite and neighbors' privacy, has to be balanced with the need for adequate access for emergency vehicles. The site appears to be of sufficient size to accommodate the 15-site campground as proposed, but notes that the location of a shower facility has not been shown on the proposed site plan. There appear to be no significant natural site features, which would preclude siting of the campground on the property. The Hearings Officer finds that I cannot make a determination that the siting and design of the proposed campground is suitable to the property without information regarding the location of a shower facility and water tanks therefor, and without a determination that the proposed drain field is of adequate size to accommodate both the proposed toilets and a shower facility. Operating Characteristics The operating characteristics of the campground include the following. Year-round use • Dry camping (no electric, water, or sewer utilities at each site) • 15 campsites Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 30 000583-MA • Parking limited to one vehicle or one vehicle and trailer • Lighting at the communal area and toilets that will be shielded • Traffic volumes expected to include 31 to 81 additional weekday daily site trips • No large group campouts or planned/unplanned events for patrons • Speed limit set at 5 mph • Quiet hours between 10:00 p.m. to 7:00 a.m. • No delivery or catering vehicles entering the campground, except for authorized maintenance and/or repair work The applicant states that the natural and physical feature of the site is ideal for the proposed campground by providing for short walks and a communal area near a dry canyon feature located on site. There are no known natural hazards present on the subject property. The proposed use will not have a negative impact on any natural resources that may be present in this area. The Hearings Officer finds that conditions of approval requiring operation of the campground consistent with the limitations set forth by the applicant in its materials, listed above, may be imposed to ensure that the operating characteristics of the proposed campground are suitable to the property. I note, however, that operational characteristics associated with a shower facility and water tank have not been addressed and should be considered by a reviewing body if a new application is submitted and/or if this Final Decision is appealed. 2. Adequacy of transportation access to the site; and FINDING: The record shows the site has adequate transportation access from Highway 97, which abuts the eastern property boundary. Highway 97 is designated as an arterial roadway road that provides vehicle access to the site from other areas within the Central Oregon area including the closest city of Bend. The record includes a revised Site Traffic Report (STR) prepared by Joseph Bessman, PE, of Transight Consulting, dated June 25, 2019. The study concluded the following: • The proposal will generate fewer than 10 weekday p.m. peak hour trips and less than 100 weekday daily trips; • Traffic generated is expected to include 31-81 additional weekday daily site trips (3 to 8 weekday p.m. peak hour trips) • Highway 97 access is adequate and will not result in a change of use; and • Left- and right -turn lanes are not warranted at the entrance (but a left -turn median refuges area is provided along Highway 97 and a wide shoulder is available for southbound traffic). The submitted STIR also included recommendations such as entrance design should include adequate turning radii, widening the southbound shoulder, and maintaining intersection clear vision areas. The applicant states that discussions with ODOT staff and documentation within the STIR have indicated that traffic volumes do not meet ODOT Change of Use criteria. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 31 000583-MA Based on the STR findings and with the condition of approval listed below incorporating the STR recommendations, the Hearings Officer finds the site is suitable for the project considering transportation access. The Hearings Officer finds this criterion may be met with conditions of approval, as discussed below in DCC 18.124.060(K). 3. The natural and physical features of the site, including, but not limited to, general topography, natural hazards and natural resource values. FINDING: Topography on -site is varying with some larger lava rock features. Vegetation consists of juniper trees and native groundcover (e.g. grasses and shrubs). Natural resource value of the property is limited to existing vegetation and rock features. Natural hazards are likely limited to wildfire potential. The subject property is within a mapped Wildfire Hazard area. The applicant addressed wildfire suppression including use of irrigation. In addition, no campfires and BBQs pits/stands will be allowed at each campsite (including yurt sites) except propane ranges, stoves, or grills that are licensed to be attached to a camper, trailer, or motor home, or licensed for use inside a yurt. The Hearings Officer finds there is nothing about the natural and physical features of the site that will preclude or significantly hamper operation of the campground as proposed. However, I note that because a shower facility is not included with the proposal, a definitive decision on this criterion cannot be made. The Hearings Officer finds the proposed use does not appear to have a negative impact on any natural resources present in the area. The Hearings Officer finds this criterion could be met, but that there is not adequate information on a shower facility, which is a required component of a campground. If this Final Decision is appealed and the applications approved on appeal, to ensure the potential of wildlife hazards is minimized, a condition of approval should be imposed to require prohibition of campfires and BBQs pits/stands at each campsite (including yurt sites) except propane ranges, stoves, or grills that are licensed to be attached to a camper, trailer, or motor home, or licensed for use inside a yurt. B. The proposed use shall be compatible with existing and projected uses on surrounding properties based on the factors listed in DCC I & 128.015(A). FINDING: Surrounding the property is an area consisting of undeveloped and developed residentially -zoned properties of varying sizes. The zoning surrounding the property is primarily MUA-10. The property's east property line is Highway 97 and the Burlington Northern Railroad is located approximately 1,100 feet east of the property and travels in a northeast -southwest direction, which is similar to the highway's travel pattern. At the closest reach, Bend city limits and associated urban growth boundary are both located approximately 680 feet to the southeast of the subject property. More dense development within the city limits is located at least 2,000 feet to the south and on the east side of the railroad tracks. The applicant provided an extensive response, including a study area and analysis in Attachment A to the applicant's revised burden of proof. The applicant identified a study area that includes all abutting properties, along with some immediately adjacent properties. The applicant used Highway 97, Ft. Thompson Lane, Suzanne Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 32 000583-MA Lane and a portion of Harris Way, generally, as the boundary of the subject area. The total study area is approximately 102 acres in size, including the subject property. In order to show that the proposed use is "compatible with surrounding properties" establishing a study area reflecting the operating characteristics of the proposed uses is needed. In this case, the applicant has selected as a study area all abutting properties, along with some immediately adjacent properties. The applicant used State Highway 97, Ft. Thompson Lane, Suzanne Lane and portion of Harris Way, generally, as the boundary of the study area. The total study area (see table below) is approximately 102- acres in size, including the subject property. The following Table A lists each of the tax lots within the <original> study area, existing use, any projected use, the approximate distance from the existing use or nearest property line of vacant parcels, and other factors that show why the proposed use is compatible with existing and projected uses on surrounding properties: Table A, Original Study Area: Tax Map Size / Existing Projected Approximate Other Relevant location use use distance Factors from from subject proposed property use 1712040000700 10.86 ac / Residence- 355 ft from Partial screening directly north 64089 N residence from subject trees Hwy 97 and residence's vehicle parking area and accessory structures 1712030000115 47.28 ac / vacant Approved 430 ft from Proposed use will & north dude south not impede the 1712040000601 Ranch property line ability to develop (247-16- of future the dude ranch 000057- dude ranch SP / 58- property CU 1712030000101 3.22 ac / Kennel- 1,480 ft from Partial screening north 64155 N kennel from subject trees, Hwy 97 kennel parking area and neighbor's residence. Future dude ranch is to be sited between campground and kennel Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 33 000583-MA 1712040000600 6.68 ac / Residence- 1,335 ft from Partial screening north 20755 residence from subject trees. Thompson Future dude ranch Ln is to be sited between campground and use Tax Map Size / Existing Projected Approximate Other Relevant location use use distance Factors from subject from property proposed use 171204000900 4.76 ac / Residence- 345 ft from Partial screening south 64025 N residence from subject trees Hwy 97 and neighbor's residence, vehicle parking area and accessory structures 171204000901 5 ac / directly Residence- 494 ft from Partial screening south 64023 N residence from subject trees Hwy 97 and residences' accessory structure 171204000902 4.71 ac / Residence- 120 ft from Partial screening directly south 64024 N residence from subject trees Hwy 97 and residences' vehicle parking area and accessory structures 171204000515 4.62 ac / west Vacant Residence 100 ft from Screening tax lot 5155 provided by east property subject trees, 100' line setback, and rocky terrain in area 171204000514 5.28 ac / west Vacant Residence 100 ft from Screening tax lot 514 provided by east property subject trees, 100' line setback and rocky terrain in area 171204000512 4.71 ac / Residence- 655 ft from Screening from northwest 641110 residence subject trees and Harris Way terrain 171204000511 4.96 ac / Residence- 940 ft from Screening from northwest 64120 residence subject trees and Harris Way terrain N/A Hwy 971 Highway Highway 340+ feet Proposed use directlyeast arterial arterial from R/W meets LM Zone Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-L.M and - 34 000583-MA Size of Study Area Sufficient For the reasons described below, including increased distances between uses, topography and vegetation present in the area, establishing a larger study would not alter the results of the required analysis. In response to this point, the CDD writes in the review of the application that the burden of proof.• provides a limited study area when addressing compatibility. Although some aspects of the project are addressed here, it does not address all factors identified under DCC 18.128.015(A). Please address these code sections with more detail as they pertain to the project." (Page 4 CDD 5131119 letter). The May 31' letter from CDD refers the applicant to other cases in the county, one involving a campground and one involving a park, and the operating characteristics from those uses, "which included noise and view impacts." However, the contrast between those two proposals and the proposed campground herein is huge, particularly since there are no "view impacts" raised or associated with the view of the subject 64061 N. Highway 97 property. The subject property is not located near or adjacent to a state or local park or trailhead. Noise impacts are evaluated and mitigation measures set based on site characteristics, the noise being generated, and distance(s) from noise sensitive uses. A noise study was performed and is included as attachment to address potential noise impacts and whether any mitigation measures are required. None of these factors identified by staff warrant a larger study area to properly evaluate compatibility than the one described above in Table A for 102-acres. Nevertheless, for the sake of showing even fuller compliance with applicable criteria, the study of existing and projected uses on surrounding properties has been expanded to include a much larger land area. It's important to note that DCC doesn't specify a specific size of a study area in these situations, but rather they are to be determined based on the specific situation and area, including operating characteristics of the proposed use, and the level of noise and other potential negative impacts associated with the proposed use and activities. Expanded Study Area The following table lists each of the tax lots within the "expanded" study area only and not those lots located within the original study area boundary described in Table A, above. Table 8, below, includes for each property the size, location, existing use, any projected use, and the approximate distance from the existing use or the nearest property line of vacant parcels. Other relevant factors that show why the proposed use is compatible with existing and projected uses on surrounding properties are also listed. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 35 000583-MA Table B, Expanded Study Area: Tax Map Size / Existing Projected Approximate Other Relevant location from use use distance Factors subject from property proposed use 1712040000205 9 ac / Residence 2,145 feet Northwest 20690 from Fort residence Thompson Ln Tax Map Size / Existing Projected Approximate Other Relevant location use use distance Factors from subject from property proposed use 1712040000202 1 ac / Residence 1, 900 feet Northwest 20680 from Fort residence Thompson Ln 1712040000506 9.12 ac/ Residence 1,570 feet Northwest 64130 from Harris residence Way 1712040000503 6.2 ac / Residence 1,400 feet Northwest 64115 from Harris residence Way 1712040000505 7.36 ac/ West Vacant Residence 850 feet from east property line of Tax Lot 500 1712040000500 10.96 ac / Vacant Residence 800 feet from West east property line of Tax Lot 500 1712040000501 16.16 ac / Residence 1,520 feet West 20620 from Bowery Ln residence 171209A001100, 3.75 ac / Vacant, Residence 850 feet from 001200, 001300 Southwest except the NE & 001400 accessory corner of Tax structure Lot 1300 on TL 1200 171209A000900 4.28 ac / Residence 910 feet from South and residence Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 36 000583-MA accessory structures 20710 Bowery Ln 171209AO01000 1.32 ac / Residence 1,028 feet South 20730 from Bowery Ln residence 1712030000500 13.6 ac / Vacant Residence 665 feet from Property is Southeast the west located on the property line opposite side of of Tax Lot Highway 97 500 Tax Map Size / Existing Projected Approximate Other Relevant location use use distance Factors from subject from property proposed use 1712030000400 6.77 ac / Residence 637 feet from Property is Southeast 64040 N the residence located on the Hwy 97 opposite side of Highway 97 from project, with home site located close to the highway's east right-of-way, 1712030000401 8.10 ac / East 2,500 sf Residence 730 feet from Property is located metal pole the pole on the opposite building building side of Highway 64054 N 97 from project, Hwy 97 with pole building about 100 feet from the highway's east right-of-way. 1712030000202 4.49 ac / East Residence 950 feet from Property is located 64070 N residence on the opposite Hwy 97 side of Highway 97 from project. 1712030000200 4.72 ac / East Residence/ 1,400 feet Property is located Taxidermy from on the opposite 64090 N residence side of Highway Hwy 97 97 from ro "ect. 1712030000102 12.65 ac / Mobile 1,190 feet Property is located Northeast Home Park from the on the opposite 64100 N closet MH side of Highway Hwy 97 97 from ro "ect. 1712030000106 .94 ac / Residence 1,649 feet Property is located Northeast and from on the opposite accessory residence side of Highway Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 37 000583-MA structure 64134 N Hwy 97 97 from project. 1712030000100 1.14 ac / Residence 1, 807 feet Property is located Northeast and from on the opposite accessory residence side of Highway structure 97 from project. 64130 N Hwy 97 1712030000108 4.61 ac / Storage Residence 1,584 feet Property is located Northeast buildings from SW on the opposite corner of Tax side of Highway Lot 108 97 from project. Tax Map Size / Existing Projected Approximate Other Relevant location from use use distance Factors subject from property proposed use 1712030000107 1.72 ac / Residence 2,210 feet Property is located Northeast and from on the opposite accessory residence side of Highway 97 structures from project. 64176 N Hwy 97 1712030000103 8.01 ac / Residence 2,498 feet Property is located Northeast 64190 N from o; � the opposite Hwy 97 residence side of Highway 97 from project NOTE. Land owned by Deschutes County (1712040000100 & 30000800), located on the north side of Fort Thompson Lane, is over 187-acres in size and extends east to west on both sides of Highway 97. Given the distance from the subject property, operating characteristics of the proposal, terrain, existing and projected uses located between these lands and lack of any current use, these county -owned lands are not included within the expanded study area boundary. Table C, Summary of Existing and Projected Uses within both Study Areas of Surrounding Properties Use Original Study Area Expanded Study Total from Both Study Area Areas Existing 7 14 21 Residences Other Existing Kennel, accessory MH Park, Taxidermy, NA Uses structures and vehicle storage, and highway R/W accessory structures Projected 3 6 9 Residences Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 38 000583-MA Other Projected Approved (not yet Other uses permitted NA MUA Uses built) dude ranch. outright under MUA Other uses permitted Zone include farm, outright included forest, road and farm, forest, road and irrigation related uses irrigation related uses and Type 1 home and Type 1 home occupations occupations Projected Uses Highway related and or big -box commercial uses and high -density residential Beyond Current uses if land is included in UGB Zoning In order to show that the proposed use is compatible with existing and projected uses on surrounding properties, the applicant must consider the following "general conditional use factors" listed in DCC 18.128.015(A). Factor 1 Site design and operating characteristics of the use: Based on the location and layout of the proposed use, camp management and rules, and how people and vehicles might typically behave in a dry -campground setting, the Operating Characteristics associated with the proposed campground include: a. Being open year-round, although the developer anticipates low use during winter months and possibly leaving only the 5 yurts available in winter. b. This is a dry campground (no water, electrical or sewer utilities). Decompose toilets (M/F), potable water faucet for drinking and washing dishes, grease drain for dishwater, and trash area will be provided in a nice setting. c. Along with shorts walks to reach the natural canyon feature and viewpoints, there will be a social gathering area with gazebo and the only designated and allowed fireplace in the entire campground. The attached Site Plan shows the communal area's location and how it is partially enclosed by the 20' lava rock feature located to the north and west. d. There will be no large group campouts and no planned or unplanned events for those not on the guest register to attend. e. Parking is limited to the length of one vehicle -trailer for each of the 15 spaces. No parking off of access road. f. Quiet hours will be from 10pm to lam, generally. g. No delivery or catering vehicles will be entering the campground. Those authorized for maintenance and or repair work at the campground will have access by way of the caretaker. The proposed campground footprint site is .9-acres in size and near the center of a 9.28-acre parcel, where more than 90% will be open space. The applicant designed the camp access, spaces and structures to minimize ground disturbance with a 20-foot graveled road, only 15 spaces, no parking lot, avoiding trees, whenever possible, while meeting DDC for proper access. For the reasons discussed further, considering the site, design and list of operating characteristics of the use, the proposed 15-space no hook-up Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 39 000583-MA campground (with communal area) is compatible with the existing and projected uses on the surrounding properties listed above in Tables A and B, above. The distance of the proposed use from existing residences and the nearest property line of vacant parcels in the expanded study area (Table B) is over 800 feet. Many are on the opposite side of Highway 97 from the subject property. The other projected uses, besides dwellings, allowed within the study areas would be those permitted outright in the MUA-10 Zone under DCC 18.32.020. The proposed campground is compatible with these uses being related to farm, forest, road and irrigation uses. Any Type 1 home occupation existing or permitting, would not be negatively impacted by the proposed use due to distance from existing dwellings and vacant parcels, and the nature (definition) of type 1 home occupations being indistinguishable from a residence. The applicant does not believe the code calls for evaluating compatibility with potentially 36 land uses listed as conditional uses in the MUA-10 Zone under 18.32.030. Likewise, any proposed conditional uses within the study area will have to show compatibility with existing and projected uses on surrounding properties. Any Incompatibility of land uses will be evaluated at the time an application is made for a conditional use on a study area parcel. Under state land use standards, projected uses beyond the current MUA-10 Zone -would most likely be the results of a Bend UGB expansion north along the highway. Projected uses would most likely be similar to the land uses already along Highway 97, including big box retail, building supplies, shopping mall, restaurants, road services, and high -density residential development, and would most likely result an expansion of the UGB. A dry campground, if push comes to shove, could easily be redeveloped to an urban use." Factor 2 Adequacy of transportation access to the site: Because the transportation access to the site is more than adequate, the proposed use is compatible with the existing and projected uses on the surrounding properties listed above. Factor 3 Natural and physical features of the site...: Because the site terrain is relatively flat, dense with trees, and scattered with lava rock features (some buffering uses), and the lack of natural hazards, the proposed use is compatible with the existing and projected uses on the surrounding properties listed above. The natural terrain and trees located on the property, and 8 Applicant footnote: Cities are required to plan for projected growth consistent with state law. Bend is growing and the transportation system is evolving. It's not a matter of if, but when. It is another possibility that state land use regulators could provide other opportunities for urban development within the Study Area based economic and or affordable housing policies, similar to recent legislation on streamlining affordable housing. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 40 000583-MA limited number of campsites, help to isolate or screen the site from surrounding uses. The factors listed under DCC 18.128.015(A) and summarized above, alone, support the conclusion that that the proposed use is compatible with existing and projected uses on surrounding properties located within the Study Area under Table A and B. These and other factors (listed below) interrelate to the required factors to consider and further support this conclusion: 1. Distance Factor. Often excessive noise is a basis for neighbors to find the use is not compatible with surrounding use. The proposed use is setback and separated from existing uses reducing potential noise that may possible reach these uses. Noise from highway traffic generally would further mask any potential noise generated by the proposed use. The closest residence being to the south of the proposed use a distance of about 120 feet. All other existing uses being over 300 yards from the proposed use. 2. Terrain Factor. View of a use is another basis one may find for a use not to be compatible. The topography of the study area is relatively flat to gentle slopes, which helps minimize the amount of view seen from surrounding uses and highway. This is especially true with the established tree canopy on the property, maximum height of parked RVs (below 1 IV) and limited campground structures being proposed. The rocky features located on the property and in this general area also provided additional screening of the proposed use from surrounding uses. 3. Visual Screening Factor. Partial or full visual screening :,ill be maintained from the existing and potential uses within the study area with the campground being proposed in the center of the subject property amongst the trees and rocky features that will be maintained. See discussion under LM Zone regarding how existing vegetation and location of campground within the densely covered canopy eliminates or nearly eliminates any view from surrounding uses. 4. Limit on Intensive Use Factor. The proposed use is further rendered compatible by the codes' limit placed on a "campground" not to include "intensely developed recreational uses such as swimming pools or tennis courts or commercial activities such as retail sales or gas stations." (DCC 18.04, Definitions). 5. Harmony with Known Projected Use Factor: In 2017, a large dude ranch development was approved north of the subject property within the original Study Area, in Table A, above. The approval of this large development is a good indication of the carrying capacity of this area of the county to accommodate additional tourist related developments. The proposed 1-acre campground with only 15 spaces is compatible with this approved use, and could serve as nearby camping for friends/family staying at the dude ranch. The proposed use will also not infringe the ability of the neighbor's further north to fully develop the dude ranch as approved. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 41 000583-MA 6. Low Noise Factor. An acoustical engineer walked the property and indicated in the attached report that based on the operation of the campground "the noise level estimates indicate that the DEQ noise standards would not be exceeded at nearby residential property lines. This is an important factor demonstrating that the proposed use is compatible with existing use surrounding the subject property." This has been considered previously by the county an important factor to consider when reviewing outdoor activities and uses, mass gatherings, weddings, and campground proposals. The applicant has presented the required documentation to show compliance with DEQ noise standards and this standard. 7. Neighbor Factor. In response to the neighbor, the developer made considerable revisions to the project and has chosen to reduce the number of campsites from 28 to 15 so as to retain all, if not most, of the natural features and trees located on -site. This will help to blend the proposed use with surrounding uses and reduce any potential negative conflicts with neighboring lands. Therefore, the proposed use is compatible, or calculated to be compatible, with existing and projected uses on "surrounding properties" based on the factors listed in DC 18.128.015(A). These factors relate to site, design and operating characteristics, transportation access being adequate for the use, the on -site natural features, terrain of the area, and the lack of any known natural hazards on the property. Compatibility is further demonstrated by the lack of any DEQ noise issues and by the redesigning of the project based on the initial concerns and questions expressed from the closest neighbor and county departments. At the outset, the Hearings Officer finds that the applicant's study area is sufficient to analyze compatibility with existing and projected uses on surrounding properties based on factors listed in DCC 18.128.015(A) (site, design and operating characteristics of the use, adequacy of transportation access to the site, and natural and physical features of the site — general topography, natural hazards and natural resource values). Neighbors to the south — Cramer Farms — express concern regarding the compatibility of the proposed uses to existing residential uses and the rural character of the area (e.g. increased density with a campground use). These comments appear to be directed at whether the proposed campground is compatible with respect to its site, design and operating characteristics. Cramer Farms does not object to the adequacy of transportation access to the site, nor does it raise concerns related to natural and physical features of the site. The applicant cites the location and layout of the proposed use, camp management and rules, and "how people might typically behave in a dry -campground setting," as factors that weigh in favor of a finding of compatibility. Specifically, the applicant notes that low use of the campground is expected during winter months, and focuses on the prohibition of large group campouts and events, quiet hours, limited parking and partial screening of the communal area by a 20-foot lava rock feature. The applicant emphasizes that the footprint of the campground is 0.9 acres near the center of a 9.28-acre parcel, with extensive open space surrounding the campground Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 42 000583-MA and retention of existing vegetation. It also noted that the nearest property line is over 800 feet away and that most of the existing uses on surrounding properties are located on the opposite side of Highway 97. With respect to projected uses, the applicant analyzed those uses permitted outright in the MUA-10 zone, which are generally related to farm, forest, road and irrigation uses. The applicant submits that any Type 1 home occupation would not be negatively impacted by the campground due to its distance from existing dwellings and vacant parcels. The applicant specifically discussed the significant distance between the proposed use and the closest residence to the south at approximately 120 feet; all other existing uses are over 300 yards from the proposed use. It also addressed terrain, rocky features and tree canopy/vegetation, which will minimize views seen from the surrounding area and highway. The applicant addressed harmony with a large dude ranch approved in 2017 north of the subject property. With respect to noise, the applicant discussed findings of an acoustical engineer that "the noise level estimates indicate that the DEQ noise standards would not be exceeded at nearby residential property lines." Finally, the applicant noted that it has worked continuously with Cramer Farms to make "considerable revisions" to the project, reducing the number of campsites from 28 to 15 so as to retain all, if not most, of the natural features and trees located on site. Given the property size, proximity of the proposed campsites and communal area to nearby residential uses and the testimony and evidence from Cramer Farms, the Hearings Officer finds that the record could support a finding that the siting, design, and operating characteristics of the campground is compatible with existing and projected residential uses in the area. However, because not all required components of a campground are included with the proposal, such a determination cannot be made at this point. C. These standards and any other standards of DCC 18.128 maybe met by the imposition of conditions calculated to insure that the standard may be met. FINDING: The Hearings Officer finds that certain conditions of approval may be imposed to ensure compliance with any and all standards of DCC 18.128. However, the proposal does not include all required components of a campground and therefore, shall be denied as discussed below. Section 18.128.320. Campgrounds. A conditional use permit for a campground may be issued only when the following criteria are met: A. Campgrounds shall provide patrons with opportunities for outdoor recreation that are compatible with the natural setting of the area. Outdoor recreation activities include fishing, swimming, boating, hiking, bicycling, horseback riding and other similar activities. Outdoor recreation does not include commercial uses such as miniature golf courses, go cart tracks or rental of equipment or animals. FINDING: The applicant states that a trail system to a natural canyon and communal area on the subject property are outdoor amenities for the campground, Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 43 000583-MA citing these features as providing opportunities for "outdoor recreation that are compatible with the natural setting of the area."9 The applicant submits that outdoor recreation opportunities provided include hiking and rock -climbing. The applicant states that the campground facility has been carefully placed near and amongst some of the rock features present on the property. The site plan shows the natural rock features that are to be preserved, along with the natural canyon area. The Hearings Officer finds that the applicant is not proposing "outdoor recreation" that involves commercial uses, such as miniature golf courses, go cart tracks or rental of equipment or animals. The Hearings Officer notes that the definition of "campground" in DCC 18.04.030, discussed in the findings above, includes, [t]he campground is established on a site or is contiguous to lands with a park or other outdoor amenity that is accessible for recreational use by the occupants of the campground." The Hearings Officer has found that the definition of "campground" does not establish criteria for approval; such criteria are set forth in DCC 18.128.320. Nonetheless, the Hearings Officer analyzes the term "outdoor amenity" below. DCC 18.128.320(A) requires that campgrounds "shall provide patrons with opportunities for outdoor recreation that are compatible with the natural setting of the area." Therefore, the Hearings Officer's analysis must determine whether the proposal provides opportunities for outdoor recreation, consistent with the criterion for approval in DCC 18.128.320(A). The applicant submits that the proposed campground will provide patrons with an opportunity to walk and explore the on -site natural features, including a raised natural canyon. It states, "[t]his unique geologic feature provides `opportunities for outdoor recreation compatible with the natural setting of the area' including hiking and rock -climbing." The applicant states that the campground facility has been carefully placed near and amongst some of the rock features present on the property. Natural rock features are proposed to be preserved along with the natural canyon area. The applicant states the following: An outdoor amenity is available to camping patrons on the proposed site by way of a natural canyon, located on top of lava rocks and other features located in the western portion of the property. The rock features and natural canyon will be "accessible for recreational use by the occupants" for short walks and exploring through the development of a trail system. County code does not define or describe an on -site outdoor amenity. The applicant believes that the natural rock features and formations, along with the vegetation, and views immediately adjacent to the proposed campground will provide an added comfort, convenience, or enjoyment to the campers. Hiking and rock climbing are plainly recreational activities that take place in the outdoors. The subject property is unique in the provision of this outdoor 9 The Hearings Officer finds the subject property is not contiguous to lands with an outdoor amenity or park that would provide patrons with an opportunity to participate in outdoor recreation. See DCC 18.04.030 (definition of "campground"). Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 44 000583-MA amenity because rock formations of this magnitude are not common in Deschutes County. Attached are photos showing some examples of the natural rock features and views located on the subject property. Another outdoor amenity being proposed is a communal area, including central fire enclosure and community gazebo that will be available to campers. The developer describes the proposal as a place to provide a unique curated social camping experience, bringing campers together in a communal family friendly setting under the Central Oregon sky, in hopes of inspiring new relationships amongst the guests as they explore Bend or pass through to other destinations. While the County Code includes a definition of "campground," it does not define the terms `outdoor amenity," `outdoor recreation" or "recreation," guide analysis of compliance with this criterion. As previously noted, the definition of "campground," which includes a reference to an "outdoor amenity" or "park" does not establish criteria for approval. Nonetheless, the Hearings Officer finds that the record supports a determination that the natural canyon and/or proposed communal area constitute "outdoor amenities] that [are] accessible for recreational use" by the occupants of the campground, as discussed below. Neither the size nor scale of the natural rock canyon is determinative. Because the Code does not include definitions to guide this analysis, it is appropriate to consider dictionary definitions of the terms. Statutory construction in Oregon requires an examination of word usage in context to determine what the legislature most likely intended. See, e.g., State v. Fries, 344 Or. 541, 546-50, 185 P.3d 453 (2008) (considering context to determine which of multiple definitions was intended by the legislature). ORS 174.010 states, "[i]n the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all." When the legislature has not defined a word or a phrase, we assume, at least initially, that the word or phrase has its plain, natural, and ordinary" meaning. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610- 12, 859 P.2d 1143 (1993); accord Wright v. Turner, 354 Or. 815, 827, 322 P.3d 476 (2014). Oregon courts frequently consult dictionary definitions in such cases on the assumption that, if the legislature did not provide a specialized definition for a term, the dictionary will help to shed light on its meaning as intended by the legislature. State v. Murray, 340 Or. 599, 604, 136 P.3d 10 (2006). Applicable dictionary definitions are as follows: Outdoor10: 1: of or relating to the outdoors 2 a: performed outdoors outdoor sports 3: not enclosed: having no roof 10 https://www.merriam-webster.com/dictionary/outdoor Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 45 000583-MA Amenity": 1: something that helps to provide comfort, convenience, or enjoyment; 2: usually amenities: something (such as a conventional social gesture) that promotes smoothness or pleasantness in social relationships 3 a: the quality of being pleasant or agreeable b(1): the attractiveness and value of real estate or of a residential structure (2): a feature conducive to such attractiveness and value Recreation: 1: refreshment of strength and spirits after work12 1: activity done for enjoyment when one is not working13 The Hearings Officer finds that the record supports a determination that the proposed campground will provide patrons with opportunities for outdoor recreation that are compatible with the natural setting of the area, consistent with this criterion. The applicant is not proposing commercial recreational uses. While Cramer Farms disputes that the natural canyon and/or the proposed communal area are "outdoor amenities," given their relatively small size, the Hearings Officer finds that the extent of walking and/or hiking available through the natural canyon is not determinative. The canyon and proposed communal gathering area are "outdoors," and are available as an "amenity" in that it may provide "comfort, convenience or enjoyment" to patrons of the campground. A more restrictive reading of this aspect of the definition of "campground" is not supportable in the context of the applicable code provisions, or under dictionary definitions set forth above. The Hearings Officer finds this criterion is met. B. Street access shall be provided as follows: 1. The campground shall obtain direct access from a street or road designated as an arterial or collector by the Deschutes County Comprehensive Plan. FINDING: The subject property will continue using the existing driveway from Highway 97, which is designated in the Comprehensive Plan as a primary highway (arterial). The Hearings Officer finds this criterion is met. 2. Access to the campground shall be adequate to handle the anticipated traffic generated by the use. FINDING: As set forth in the applicant's site traffic report, access to the subject property is adequate to handle the anticipated traffic generated by the campground use. Trips generated from the proposed use will be less than the ODOT Change of Use thresholds. ODOT staff have preliminarily indicated that the volume of traffic and the existing conditions do not warrant any mitigation on Highway 97. 11 https://www.merriam-webster.com/dictionary/amenU 12 https://www.merriam-webster.com/dictionary/recreation 13 https://www.lexico.com/en/definition/recreation Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 46 000583-MA The applicant states that it will apply to ODOT for use of the access point and will comply with any ODOT requirements for vegetation clearing within sight distance areas or for improvements to the driveway surfacing and entry radius at the point of access. Specifically, the submitted STIR includes recommendations such as the entrance design should include adequate turning radii, widening the southbound shoulder, and maintaining intersection clear vision areas. The Hearings Officer finds this criterion may be met with conditions of approval as discussed in DCC 18.124.060(K). 3. The Deschutes County Public Works Department or the State Highway Division may require refuge lanes for left hand turns and deceleration lanes for right hand turns where necessary for public safety. FINDING: Neither the Senior Transportation Planner nor ODOT identified any required mitigation for transportation -related impacts. Preliminary comments provided by ODOT state, "The existing access point is presumed to be permitted and must be designated as right -in, right out only." However, ODOT does not require a median concentrating or restricting northbound traffic from making a left turn off the highway. The Hearings Officer finds this criterion is not applicable. C. Water supply and sewage disposal shall be provided as follows: 1. Applicant shall demonstrate that there is adequate potable water available at the site to serve the campground. When the water is to be supplied from a well, a well log is required to show that an ample supply of water will be available for the campground it -.-ill serve. FINDING: The applicant proposes potable water by use of the existing on -site well. The well will serve the existing single-family dwelling and the campground use, including one toilet for men and one for women and at least one centralized campground water faucet (for drinking and cooking). The site plan shows the general location of the proposed water line. The Hearings Officer notes that the applicant has not provided evidence concerning the adequacy of potable water at the site to serve a campground with a required shower facility and/or hand washing facilities, however. The record includes a well log of the subject property, which indicates static water level at 643 feet. A 1996 water supply well report noted an estimated flow rate of 18 GPM. As noted in the comments from the County Health Department, the applicant will be required to secure an operating license prior to opening the facility to public use. The final plans for water supply improvement serving the campground will be approved by the State Health Division. The Hearings Officer finds that, without evidence to demonstrate there is adequate potable water available at the site to serve the campground, including a required shower facility and/or hand washing facilities, I cannot make a determination this criterion is met. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 47 000583-MA 2. Plans for water supply and sewage disposal improvements must be approved by the State Health Division and the Department of Environmental Quality. FINDING: A toilet on a septic system is proposed to be provided and maintained. The applicant has obtained a septic feasibility analysis for the proposed system, but, as noted, the applicant has not proposed a shower facility and/or hand washing facilities, which are required components for a campground under DCC 18.128.320(D)(3). The Hearings Officer cannot make a determination that this criterion could be met with a condition of approval, because there is no showing of feasibility of such a condition of approval. 3. Evidence shall be provided to demonstrate that the campground will be eligible for a certificate of sanitation as required by the Oregon Department of Environmental Quality. FINDING: The residence located on the subject property is served by the existing septic system under Permit #247-14-001029-SEP. A septic system to serve the proposed campground has received a septic feasibility analysis from the County, which administers sanitation approvals on behalf of the State. There is no evidence the septic feasibility analysis includes or would cover a required shower facility and/or hand washing facilities, however. As discussed below, OAR 918-650-0050(1) requires toilet facilities to be provided in every recreation park or organizational camp. "They must be convenient and accessible and must be located within 500 feet of any recreational vehicle space or camping site not provided with an individual toilet facility or sewer connection." Subsection (2)(a) provides, "Sanitary facilities must be as required in Table 3-RV." Based on the proposed size of the campground, this table requires one toilet for men and one for women and two lavatories. The applicant is correct that the term "lavatory" is not defined in the OARs or in the County Code. However, Table 3-RV includes a specified number of both toilets and lavatories, indicating the terms are not synonymous. The term "lavatory" is defined as a "basin for washing" by Webster's Third New International Dictionary Unabridged. As noted in previous findings, dictionary definitions are appropriate considerations in state law interpretation. OAR 918-650-0050(2)(d) requires flush toilets and showers and the buildings containing them must be constructed in accordance with the State Building Code. The Hearings Officer finds this criterion could be met with a condition of approval to ensure compliance, but that there is insufficient evidence regarding whether the septic feasibility analysis from the County includes or is broad enough to cover a required shower facility and required lavatory facilities. D. A campground shall conform to state standards specified in OAR Chapter 918, Division 650 and the following: FINDING: Applicable sections of OAR 918-650 are addressed in the findings below. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 48 000583-MA Sixty five percent of a parcel developed as a campground shall be retained as open space. Natural vegetation shall be maintained in open space areas to the fullest extent possible. Walkways, roadways, parking spaces, structures, service areas and campsites shall not be considered open space. FINDING: The subject property is approximately 9.53 acres. Accordingly, 6.19 acres of open space shall be provided on -site in order to meet this criterion (9.53 * 0.65 = 6.19). According to the applicant, approximately nine (9) percent, or 0.85 acres, of the subject property will be occupied by the proposed campground and thus 91 percent (8.67 acres) will be retained as open space. However, existing residential use of approximately one (1) acre, which includes any accessory structures, must be taken into account. The proposed gravel and paved paths to yurts, roadway, structures and campsites with parking are not included in the open space calculations. The applicant states that approximately 7.67 acres are proposed to be retained as open space. The Hearings Officer notes that a shower facility has not been proposed, but is required under DCC 18.128.320(D)(3). An additional structure on the site will alter/reduce the calculation of open space. The Hearings Officer calculates that there is approximately an additional +/-1 acres "available" to the applicant pursuant to the calculations above, whereby the 65% open space requirement could be met, even taking into consideration a dispute between the applicant and Cramer Farms concerning an approximate .2 acres of overlapping property uses on the southern border of the subject property. Therefore, I find that this criterion could be met with a condition of approval requiring that no less than 65% of the property be retained as open space. 2. The space provided for each campsite shall be not less than 1600 square feet exclusive of any space used for common areas such as roadways, general use structures, walkways, landscaped areas and parking spaces other than those assigned to particular campsites. FINDING: For the purposes of this calculation, the applicant identifies 10 campsites, each at 1,600 square feet, including the parking space assigned to that particular campsite, exclusive of the proposed access road, general use structures and common area (in this case, the communal area located near lava rock feature), as shown on the site plan. The Hearings Officer finds that adequate tent space is available even where the assigned campsite parking space is included in this square footage. Therefore, the Hearings Officer finds this criterion will be met for the 10 regular campsites. The applicant also proposes 5 yurt sites. The Hearings Officer finds yurt sites are considered a campsite based on the allowance provided in DCC 18.04.030. The Site Plan shows that the yurt sites are greater than 1600 square feet in size (Yurt #1 1,775 sf; Yurt #2 2,100 sf; Yurt #3 2,070 sf; Yurt #4 4,000 sf and Yurt #5 1,940 so. The Hearings Officer finds this criterion will be met for the 5 yurt sites. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 49 000583-MA 3. Campgrounds shall provide potable water, toilet and shower facilities, lighting, picnic tables and garbage collection sites for the convenient use of campers as specified in OAR 918-650. Water and electric lines shall be placed underground. FINDING: The proposal includes all of the required components identified in this criterion except for shower facilities and hand -washing facilities (lavatories). The applicant submits that this provision intends to impose a requirement that campground proposals comply with OAR 918, Division 650 and not to impose requirements above and beyond OAR 918, Division 650. The applicant argues that OAR 918, Division 650 does not mandate that campgrounds have showers, just that, if any shower is provided, it must be compliant with the building code. The applicant continues that, if the Hearings Officer disagrees, a condition of approval should be imposed that would allow for use of solar showers or other similar facilities, which could be provided through water tanks as opposed to facilities affixed to the plumbing system. The Hearings Officer finds that the plain language of this section imposes a mandatory "shall" requirement for campgrounds to provide each of the listed amenities in DCC 18.128.320(D)(3), including toilet and shower facilities, as specified in OAR 918-650. OAR 918-650-0050(2) requires compliance with Table 3- RV, as discussed below. Table 3-RV requires two toilets and two lavatories for campgrounds with 1-15 sites, as here. The phrase "as specified in OAR 918-650" does not modify the Code requirement for campgrounds to provide each listed amenity. Each amenity is required by the Code and must be constructed in accordance with the State Building Code. This is further supported by the introductory language in DCC 18.128.320(D) which states, "A campground shall conform to state standards specified in OAR Chapter 918, Division 650 and the following." (emphasis added). If the legislative body of the County intended to limit criteria for approval to those set forth in OAR 918-650, it would not have included additional specific requirements in subsections (D)(1) through (13). As correctly noted by Cramer Farms, the OAR rules set design and construction standards and minimum safety requirements only (OAR 918-650-0010, Scope and Purpose). They do not, like land use laws, prescribe all facilities that must be provided in a campground. Statutory construction principles are applied "to discern the legislature's intent." In carrying out that task, we look "at the text and context of [the] statutes * * * because they are the best evidence of the legislature's intent." PGE v. Bureau of Labor & Indus., 317 Or. 606, 610, 859 P.2d 1143 (1993). Use of the term "shall" is construed to impose a mandatory obligation. E.g., Dika v. Dept. of Ins. & Finance, 312 Or. 106, 109, 817 P.2d 287 (1991) ("To construe the word 'shall' as anything other than mandatory would thwart the intention of the legislature[.]"); Webster's Third New Int'l Dictionary 2085 (unabridged ed 2002) (defining " shall," in part, as "used in laws, regulations, or directives to express what is mandatory ); Legislative Administration Committee, Form and Style Manual for Legislative Measures 10 (2014) ("To impose an obligation to act, use 'shall."' ) The Hearings Officer finds that use of the phrase "as specified in OAR 918-650" in this context does not qualify the duty imposed in DCC 18.128.320(D)(3) for a campground to provide each of the listed amenities, including, but not limited to shower facilities. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 50 000583-MA The Hearings Officer finds that I cannot impose a condition of approval, as suggested by the applicant, to support a finding that the applicant has met these criteria. The submitted site plan (revised) does not show the location of shower facilities or water tanks, does not propose lavatories, and the applications are not supported by any analysis regarding the adequacy of water available on site to support a shower facility and lavatories, nor adequacy of the proposed drain field. Therefore, the Hearings Officer cannot make a determination that there is a "feasible" solution for the applicant to meet these criteria with a condition of approval. See Rhyne v. Multnomah County, 23 Or LUBA 442, 447-48 (1992) (where compliance with an approval criterion is at issue, the local government must (1) find either that the criterion is satisfied or that feasible solutions exist and impose conditions as necessary; (2) deny the application; or (3) defer a determination of compliance with the criterion to a second stage of review that provides statutorily required notice and opportunity for a hearing). I find this criterion is not met. 4. Campgrounds shall not provide campsite hookups for sewage disposal or electricity. A centralized sewage dump station that meets state standards may be provided. FINDING: The applicant does not propose any campsite hookups for sewage disposal or electricity. No sewage dump station is proposed. The Hearings Officer finds this criterion will be met. 5. Roadways permitting one-way traffic shall be not less than 10 feet wide and those permitting two way traffic shall not be less than 20 feet wide. Where parking is allowed on the margin of the road, an additional 10 feet shall be added for each parking lane. Roadways shall be improved with an all-weather, dustless surface. FINDING: The driveway access and road within the campground will permit two-way traffic with a width of 20 feet. No parking is proposed on the road margins. The applicant proposes to improve the roadway surface with clean 3/4 inch minus gravel surface. The applicant states that this level of graveling will allow for access in all- weather conditions and prevent dust. A posted vehicle speed of 5 miles per hour is intended to prevent damage to the gravel surface thereby further ensuring limitation of dust. The applicant submits that a gravel road is better equipped to deal with dust than a paved surface because the porous nature of gravel allows dust originating from off of the road to settle, whereas such dust would remain on the surface of a paved drive and be pushed into the air from vehicles. The applicant states this position is supported by statements from the applicant's engineer, experienced in dust -control matters. Cramer Farms expressed concern regarding the use of gravel for the roadways and believe the roadways should be paved. As discussed below in DCC 18.116.030(F), the Hearings Officer finds the applicant qualifies for an exception to the paving requirements. The exception provides for an alternative use of gravel, which is an accepted all-weather surface with the condition it is maintained in a matter in which it will not create dust problems for the neighboring properties. The proposal includes limiting vehicle speeds to 5 mph and the application of water and/or magnesium Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 51 000583-MA chloride as dust abatement. The Hearings Officer finds this criterion may be met with imposition of conditions of approval to post and enforce vehicle speed limitations and to maintain the gravel road in a manner to prevent nuisance conditions resulting from gravel road dust. 6. Except for the access roadway serving the campground, no vehicular or pedestrian access shall be allowed out of the campground. Fences shall be provided which prevent trespass to property not under the control of the campground owner. FINDING: No access roadway other than the drive aisle to the parking areas for each campsite is proposed. The subject property is currently enclosed with fencing and a gate. The applicant states that no vehicles or pedestrians will be allowed onto the neighboring private properties located to the north, west and south. There are no accessible public lands located near the subject property. The closest public land is Deschutes County property, located on the north side of Fort Thompson Lane to the north. The applicant states it will make repairs as needed to the existing fencing to ensure it prevents trespass. Comments submitted by Cramer Farms expressed concern regarding potential trespass from the campground to surrounding properties. There is concern that the existing fencing is not located at the precise property boundary and uses associated with Cramer Farms property to the south overlaps onto the subject property. Cramer Farms requests that if the applications are approved the existing fencing be retained. Otherwise, altering the fence location could impact Cramer Farms, whose use of that area has existed over fifty years. Cramer Farms did not introduce any evidence to support concerns about the design of the existing fence with respect to preventing trespass from the campground onto neighboring properties. In fact, Cramer Farms requested that the existing fencing be retained if the applications are approved. The Hearings Officer finds that, with conditions of approval requiring the campground to post signs and enforce restrictions to prohibit vehicles and pedestrians from accessing neighboring private properties to the north, west and south of the subject property, requiring the existing fencing on the southern boundary of the subject property adjoining that of Cramer Farms to be maintained, and requiring the applicant to make repairs to existing fencing, this criterion may be met. 7. Each campsite shall be provided with at least one parking space, which shall be paved or covered with crushed gravel and designed to promote drainage of surface runoff. FINDING: The applicant proposes 10 tent, camper or trailer campsites and 5 yurt campsites. The applicant proposes one parking space of varying length for each site. Each parking space will be covered with gravel and designed to promote drainage of surface runoff. The Hearings Officer finds this criterion is met. 8. Campgrounds shall be surrounded by buffer strips of existing vegetation or landscaping. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 52 000583-MA FINDING: The proposed campground footprint is about 0.9 acres in size, located near the center of the property and outside the required 100-foot campground setback. The proposed trash receiving area (closest to Highway 97) is about 740- feet from the highway right-of-way. The record shows the campground will be surrounded by existing vegetation. These setback buffers, along with tree cover east and south of the proposal and natural area/canyon to the west, nearly surround the entire proposed campground with vegetation screening. Cramer Farms submits that installation of the proposed drain field will remove a number of significant, existing trees in the 100-foot setback buffer in violation of this criterion. It argues that the removal of the existing trees will increase the width of an area that is already devoid of trees and notable vegetation, and that installation of a septic drain field, septic tank and service lines will involve major disturbance of the surface and subsurface of the property and significant tree removal. The Hearings Officer finds that this criterion does not establish a minimum size for a "buffer strip" of existing vegetation or landscaping." Accordingly, I find the record supports a finding that the campground will be surrounded by buffer strips of existing vegetation or landscaping as discussed herein. Analysis of whether a setback waiver pursuant to DCC 18.128.320(D)(10)(b) should be granted is set forth below. This criterion is met. 9. To promote privacy and preserve the integrity of the natural setting, campgrounds shall retain existing vegetation to the fullest extent practical. FINDING: The applicant intends to preserve the natural setting and existing vegetation to the fullest extent practical. The location if the camp access road, number of campsites, yurts and facilities were sited to retain the existing vegetation, natural setting and rock features to the maximum degree practical. The design is intended to make sure that vehicles accessing and parking into spaces and exiting the campground can do so safely, while maximizing campsite privacy. While the Hearings Officer notes that the location of a shower facility is not specified, I find this criterion may be met with a condition of approval. 10. Yards and Setbacks. a. Campsites or parking spaces shall not be located within the yard and setback areas required by the County for permanent buildings in the zone in which the campground is located. FINDING: Pursuant to the MUA-10 Zone, the required setback from Highway 97 is 80 feet. The required setback from the north and south (side) property boundaries is 20 feet. From the west (rear) property boundary, the required setback is 25 feet. The site plan shows the proposed campsites and parking spaces are at least 100 feet or more from all property boundaries and the highway. The Hearings Officer finds this criterion is met. b. No developed portion of the campground shall be located within 100 feet of the right of way of any road or property line of a lot not part of the campground. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 53 000583-MA FINDING: The applicant submits that the proposed drain field in its second application for modification of application precludes trees but not other vegetation and does not prohibit strips of existing vegetation between the campground and the northern property line. The applicant also argues that buffer strips are not synonymous with a "yard" or "setback." It states, "to the extent a drain field is a 'developed portion of the setback,' it is categorically entitled to a waiver under DCC 18.128.320(D)(10)(d), discussed below, because it is located completely underground and thus entirely screened from neighboring properties or landscape areas." Cramer Farms argues that the installation of a septic drain field, septic tank and service lines is campground development that will involve major disturbance of the surface and subsurface of the property and significant tree removal. It must, therefore, comply with the 100-foot setback unless waived. Cramer Farms states that the applicant does not qualify for a waiver because it has not provided any screening or buffering between neighboring properties and the drain field as required by DCC 18.128.320(D)(10)(d). The applicant notes that, other than the drain field, no developed portion of the campground will be located within 100 feet of the right of way or any road or property line. The Hearings Officer finds that, unless a waiver with respect to the proposed drain field is approved pursuant to DCC 18.128.320(D)(10)(d) (discussed below), this criterion is not met. c. No developed portion of the campground shall be located closer than 300 feet from a road in a Landscape Management overlay zone. FINDING: The existing driveway access road leading from the highway to the campground is not considered to be part of the campground development. As proposed, the campground development will be sited over 300 feet from Highway 97, a designated landscape management corridor. The Hearings Officer finds this criterion is met. d. Setback requirements in DCC 18.128.320(D)(10)(b) and (c) may be waived upon a finding by the Planning Director or Hearings Body that the developed portion of the campground will be sufficiently screened and buffered from neighboring properties or the protected landscape area. FINDING: The applicant states that, to the extent the drain field or any other item not addressed in subsection 10(a) constitutes a "developed portion" of the campsite, a waiver is requested. It submits that a drain field is subterranean and thus not visible to adjacent property; the vegetation to be retained is sufficient to screen all elements of the proposed campground from adjacent properties. The applicant further states that, to the extent the Hearings Officer finds the existing vegetation insufficient for screening, the applicant is willing to include segments of solid wood fencing to ensure sufficient screening. The applicant submits that all developed portions of the campground, including the drain field, will be sufficiently screened and buffered from neighboring properties. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 54 000583-MA The proposed drain field will require the removal of only four trees; existing terrain and vegetation both on the subject property and the adjacent property to the north provide sufficient screening of the campground. Cramer Farms argues that the installation will remove "a number of significant, existing trees" in the 100-foot setback buffer. The Hearings Officer finds that there is no restriction or regulation in the Code pertaining to "significant" trees," and notes that the applicant is only proposing to remove four trees. The Hearings Officer finds that the drain field constitutes a developed portion of the campground under these criteria. I further find that the setback requirement in DCC 18.128.320(D)(10)(b) may be waived, provided that a condition of approval is imposed requiring the applicant to install segments of solid wood fencing for screening, where such fencing does not exist on the subject property. The Hearings Officer notes that other conditions of approval would require retention and maintenance of existing vegetation to provide screening and buffering from neighboring properties. 11. Tent campers and recreational vehicles shall not remain in the campground for more than 30 days in any 60-day period. FINDING: Under this criterion, a camper shall be limited to 30 days in any 60-day period. The Hearings Officer finds that this standard applies to all campers, whether staying in a tent camper, recreational vehicle or yurt. Although the term "tent camper" is not defined in the Code, the Hearings Officer finds that a common sense interpretation of the term includes campers that stay in tents or yurts.14 As discussed in the findings above, the Hearings Officer finds that this criterion, and not the definition of `campground," regulates campground use period restrictions. The Hearings Officer finds this criterion may be met with a condition of approval. 12. The campground shall be licensed as a tourist facility by the State Department of Health as specified in ORS 446, unless operated by a public entity, timber company or private utility. FINDING: The Hearings Officer finds that this criterion may be met with a condition of approval. 13. One dwelling may be allowed for a resident caretaker or proprietor. FINDING: The applicant proposes to use the existing single-family dwelling as the campground caretaker or proprietor residence. The Hearings Officer finds this criterion is met. CHAPTER 18.124 SITE PLAN REVIEW Section 18.124.020. Elements of Site Plan. 14 DCC 18.04.030 defines "yurt" as the following: "Yurt" means a round, domed shelter of cloth or canvas on a collapsible frame with no plumbing, sewage disposal hook-up or internal cooking appliance. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 55 000583-MA The elements of a site plan are: The layout and design of all existing and proposed improvements, including, but not limited to, buildings, structures, parking, circulation areas, outdoor storage areas, bicycle parking, landscape areas, service and delivery areas, outdoor recreation areas, retaining walls, signs and graphics, cut and rill actions, accessways, pedestrian walkways, buffering and screening measures and street furniture. FINDING: The applicant submitted a revised site plan which shows the location of the drain field, as well as an area for replacement of the proposed drain field should it ever fail (area marked septic replacement area). The Hearings Officer notes, however, that the site plan does not illustrate a location for a shower facility, which would be a proposed improvement. Cramer Farms comments that the site plan fails to provide the location of a septic tank, such that the impact of installation of a tank on screening vegetation and landscaping cannot be determined. Cramer Farms also states that the site plan fails to show the location of the lines that will transport effluent to the septic tank and then to the drain field will be located. The applicant correctly notes that location of the septic tank and septic lines are not required elements of a site plan under DCC 18.124.040. This is because an applicant is not required to design a septic system, nor does the County ordinarily issue septic feasibility analyses before an applicant receives land use approval. Nonetheless, the applicant did obtain a septic feasibility analysis, which shows the locations suitable for a septic tank and determines that a septic system is feasible. The Hearings Officer notes, however, that it is unclear whether the septic feasibility analysis covers a required shower facility and/or lavatories. The applicant states that final engineering is required for a precise location of a septic tank, which is why it is imprudent to provide a precise location/design at the land use stage. The septic system will be completely underground and located adjacent to the drain field within an area identified by the septic feasibility analysis as a suitable location, or as otherwise directed by the County in compliance with applicable septic approvals. Applicant is retaining strips of natural vegetation around the perimeter of the site and has offered to provide screening of the campground to mitigate any impacts of an underground septic tank. Cramer Farms also comments that the site plan fails to show the location or details about a dry well proposed for disposal of dish washing water. It further states that OAR 333-031-0006(1) requires campgrounds dispose of waste water to a public sewerage system or in a manner approved by DEQ. OAR 340-071-0100. Cramer Farms alleges that the applicant has failed to demonstrate that DEQ rules allow disposal of kitchen waste water (dish water) in a drill hole and it appears unlikely that such a method of disposal is allowed. Cramer Farms states that the rules do not authorize the use of dry wells; they allow graywater waste sumps, but kitchen wastewater may not be disposed in graywater waste sumps. The applicant states that the dry well will be located near the kitchen area and both the dry well and the septic system will be designed and constructed in accordance with applicable law. The Hearings Officer addresses the requirements of OAR 333- 031-0006 and OAR 340-071-0100 in the findings below. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 56 000583-MA Finally, Cramer Farms argues that the toilet design shown in the applicant's Exhibit M is wholly inadequate, as it gives no basis for review as to size and what they will actually look like. Cramer Farms argues that the design shown in Exhibit M fails to comply with ADA requirements and does not provide room for sinks. It further states that the applicant has not addressed floor drains or screens, as required in OAR 918- 650-0050 and-0045(8). Cramer Farms alleges that these required features will impact the size and design and the final building will need to be much larger than proposed by the site plan. It states that this fact may impact the compliance with camping space size and other relevant approval criteria as it is unknown how the applicant will accommodate a larger facility in the limited area subject to campground development. The applicant states that nothing in the Code requires construction level drawings/plans for the design of the toilet facility at the land use approval stage. The applicant submits that it is not required at this stage because the applicant must separately apply for building permits, at which point compliance with the building code is reviewed. The applicant states, "the opponent does not cite anything besides generic references to the building code to suggest that the proposed facilities do not or could not be made to comply with the building code." It also states that the applicant has provided sufficient information (location, colors, general appearance and dimensions) to evaluate the impacts of the toilet facilities at the land use stage. "As is customary, a condition of approval can be imposed for the applicant to apply for building permits and otherwise comply with the ADA." With the exception of a required shower facility, the Hearings Officer finds all other required components of a site plan have been submitted. Compliance with state regulations is addressed in the findings below. Section 18.124.030. Approval Required. A. No building, grading, parking, land use, sign or other required permit shall be issued for a use subject to DCC 18.124.030, nor shall such a use be commenced, enlarged, altered or changed until a final site plan is approved according to DCC Title 22, the Uniform Development Procedures Ordinance. B. The provisions of DCC 18.124.030 shall apply to the following; 1. All conditional use permits where a site plan is a condition of approval; 2. Multiple family dwellings with more than three units; 3. All commercial uses that require parking facilities; 4. All industrial uses; 5. All other uses that serve the general public or that otherwise require parking facilities, including, but not limited to, landfills, schools, utility facilities, churches, community buildings, cemeteries, mausoleums, crematories, airports, parks and recreation facilities and livestock sales yards; and 6. As specified for Flood Plain Zones (FP) and Surface Mining Impact Area Combining Zones (SM/A). Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 57 000583-MA FINDING: The proposed campground is a commercial use that requires parking facilities. The Hearings Officer finds the provisions of this chapter apply. Section 18.124.060. Site Plan Approval Criteria. Approval of a site plan shall be based on the following criteria: A. The proposed development shall relate harmoniously to the natural environment and existing development, minimizing visual impacts and preserving natural features including views and topographical features. FINDING: The existing environment consists of varying topography with on -site vegetation including primarily native trees and groundcover (e.g. shrubs and grasses), which will be retained. Development on -site includes a single-family dwelling established in 1957 (proposed for use as a caretaker's residence), various accessory structures, a pond, and access road. Views on -site consist primarily of the Cascade Mountains to the west, which will be retained. The Board of County Commissioners has interpreted this provision in Father's House, files 247-18-000061-CU, 247-18-000062-SP, 247-18-000624-A, and 247-18- 000643-A: The Board agrees that DCC 18.124.060(A) is subjective and, at times, difficult to apply as the Hearings Officer observed. However, as the Board interprets the provision, DCC 18.124.060(A) does not require a particularly onerous exercise. It requires an applicant to show that its proposed site plan relates "harmoniously" to the natural environment and existing development. Unlike the conditional use standards of DCC 18.128.015(B), this standard does not indicate harmony achieved with "surrounding properties." However, the Board understands that the standard implies that the proposed development shall relate harmoniously on and off the subject property and generally speaking, in the vicinity, by "minimizing visual impacts and preserving natural features including views and topographical features. " The code does not define what it means to "relate harmoniously." The Hearings Officer reported that the online Oxford Living Dictionary defines "harmoniously" to mean arranging something "in a way that forms a pleasing or consistent whole." Both parties in this case, provided various interpretations of the term "harmonious." The Board is not adopting one interpretation of the term over another as each contributes equally to this evaluation. The Board concurs with the Hearings Officer that there is no "particularly useful case law defining or applying this term." In addition, the Board agrees, that the Hearings Officer is correct that a site plan should be approved in light of this meaning of "harmonious," so long as the proposed site plan does not create "more disharmony than other uses allowed by right or conditionally in the MUA-10 zone." In this regard, the Board finds that this standard presumes the use is approved and evaluates only whether the site plan for the use "relates harmoniously." The Board finds that the proposed church site plan meets the standard set forth in DCC 18.124.060(A). Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 58 000583-MA Specifically, the Board interprets DCC 18.124.060(A) to mean that an applicant must demonstrate that the site plan has arranged the development in a way that evaluates the natural environment and existing development in the area and in the process has minimized visual impacts and reasonably preserved natural features including views and topographic features. Minimizing visual impact, as with this case, may include introduced landscaping, design layout, and specific design elements such as siding and roofing color and material. In doing so, this enables the County decision maker to find that the site plan's impacts create no more disharmony than other uses allowed by right or conditionally in the MUA Zone. The Board agrees, in part, with the Hearings Officer that this standard is considered differently when compared to the term "compatibility" and its associated standard of DCC 18.128.015(B). The chief differences between the two standards is that the DCC 18.128.015(B) compatibility standard evaluates the compatibility of the proposed use on existing and projected uses of surrounding properties and does so in light of specific factors that are not reproduced in DCC 18.124.060(A). The DCC 18.124.060(A) "harmonious" standard evaluates whether a proposed site plan "relates harmoniously to existing development and the natural environment" considering whether the site plan shows that the applicant has reasonably mitigated its impacts and reasonably preserved views. The Board observes that not every use that requires site plan approval also requires a conditional use permit. However, the Board finds that it is possible that a permitted or approved use is arranged so poorly on a site, that a proposed site plan must be denied under this standard. That is not the case here. Similar to the concerns regarding whether the proposed campground is compatible with existing and projected uses on surrounding properties discussed in DCC 18.128.015(B), public comments raise concern whether the development will relate harmoniously to the natural environment and existing development. The Board of County Commissioners has interpreted this criterion to mean that an applicant must demonstrate that the site plan has arranged the development in a way that evaluates the natural environment and existing development in the area and in the process has minimized visual impacts and reasonably preserved natural features including views and topographical features. Minimizing visual impact, as with this case, may include introduced landscaping, design layout and specific design elements such as siding and roofing color and material. In doing so, this enables the County decision maker to find that the site plan's impacts create no more disharmony than other uses allowed by right or conditionally in the MUA Zone. The size and location of the proposed use in the center of the property eliminates or minimizes the view from the highway and surrounding properties, while preserving the natural topographical features and views located on and from the property. The proposed small-scale development does not create more disharmony than other uses permitted outright or conditionally in the MUA-10 Zone, such as dog kennels, exploration for minerals, personal use landing strips, golf courses, landfills, public schools and manufactured dwelling parks. Nonetheless, the Hearings Officer finds that I cannot make a determination of whether the proposed campground and related facilities have been designed to avoid and minimize negative impact to the natural Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 59 000583-MA landscape and existing rock features on the subject property because the location and design of a shower facility has not been specified by the applicant. Additional information and evidence is required to find that the project relates harmoniously to the natural and man-made environment. B. The landscape and existing topography shall be preserved to the greatest extent possible, considering development constraints and suitability of the landscape and topography. Preserved trees and shrubs shall be protected. FINDING: The majority of the property is proposed to be retained in its existing condition, including existing juniper trees and rock features. The applicant proposes to preserve the natural rock features, including the natural canyon area, to the greatest extent possible, as they are the primary attraction for this property. The Hearings Officer finds this criterion may be met. C. The site plan shall be designed to provide a safe environment, while offering appropriate opportunities for privacy and transition from public to private spaces. FINDING: The campground use, which includes a communal gathering area, will be sited just over 100 feet from the closest residential use to the south. Beyond that, the next closest residential uses are approximately 350 feet to the north and south. The applicant submits that the proposed campground layout has been designed to provide a safe environment for vehicles accessing, parking and leaving the campground and by limiting the use of open campfires. Designers have balanced t� ie need to make each campsite as private as possible, including minimizing headlights shining into other campsites and neighboring residences, against the need for safety, convenience and compatibility with surrounding land uses. The proposed 20-foot camp access road will be accessible for emergency vehicles and the applicant states it will work with Bend Fire & Rescue to meet all access requirements for emergency vehicles. The applicant states that the substantial setbacks and retained vegetation provide screening from adjacent uses as shown in the photographs of the property. Cramer Farms submitted comments expressing concern regarding screening of the campground use from its property to the south. The staff report stated that the "wood screening fence may likely block views from the gathering space and campground to the Cramer Farm's property to the south and surrounding properties. However, it is unclear if this same level of privacy will be provided from views from the campsites to surrounding properties." The applicant states that it is willing to provide sections of solid fencing to cover any gaps, if the Hearings Officer determines there are any portions of the property that require additional screening. The Hearings Officer finds that the proposal provides adequate separation of vehicles from bicycle parking and pedestrian walkways. All required clear vision areas will be maintained with the imposition of conditions of approval. The access aisles and service road will be a minimum of 20 feet in width, as permitted in DCC 18.128.320(D)(5), which will allow for adequate two-way traffic. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 60 000583-MA Nonetheless, the Hearings Officer finds that I cannot make a determination of whether the site design of the proposed campground and related facilities provides a safe environment while offering appropriate opportunities for privacy and transition from public to private spaces because the location and design of a shower facility has not been specified by the applicant. A condition of approval requiring the applicant to install sections of solid fencing to cover any gaps in the existing fencing on the subject property should be required if this Final Decision is appealed and the applications are approved on appeal. D. When appropriate, the site plan shall provide for the special needs of disabled persons, such as ramps for wheelchairs and Braille signs. FINDING: The applicant proposes one ADA yurt campsite (site number 5, which is adjacent to the restroom facility) with a paved pad and trail accessing the toilets. It states that Braille signage as necessary will be installed. The County Building Safety Division will notify the applicant of any accessibility requirements at the time of building permit review. As noted, a shower facility is required of a campground but is not included in the site plan, nor proposed by the applicant. Such facility should also be sited and designed to be ADA accessible. If this Final Decision is appealed and the applications approved on appeal, a condition of approval should be imposed to ensure compliance with this criterion. E. The location and number of points of access to the site, interior circulation patterns, separations between pedestrians and moving and parked vehicles, and the arrangement of parking areas in relation to buildings and structures shall be harmonious with proposed and neighboring buildings and structures. FINDING: Access to the site is provided from Highway 97 to the east. This access point will not change. No comments from the Senior Transportation Planner or the ODOT were received indicating any need to modify this access point. As noted previously, preliminary comments provided by ODOT state, The existing access point is presumed to be permitted and must be designated as right -in, right out only.' However, ODOT does not require a median concentrating or restricting northbound traffic from making a left turn off the highway. The access road will be a minimum of 20 feet in width, as permitted in DCC 18.128.320(D)(5) to allow for adequate two-way traffic. A hammerhead style turn- around area will be provided at the end of the road. Parking will not be permitted along the roadway, except in specific campsite parking spaces. The road will be improved with a compacted gravel surface. The road and parking areas will be located approximately 130 feet from the closest residence. The applicant proposes to retain all existing native vegetation on the site to help maintain harmony between the proposed use and neighboring buildings and structures. The proposed improvements have been designed to be harmonious with the existing development and neighboring properties. However, the design of a shower facility has not been addressed, as noted. Absent more, the Hearings Officer cannot find this criterion will be met. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 61 000583-MA F. Surface drainage systems shall be designed to prevent adverse impacts on neighboring properties, streets or surface and subsurface water quality. FINDING: A majority of the site will remain undeveloped with significant setbacks from impervious surfaces to property lines. Additionally, the driveways and parking areas will be surfaced with gravel, allowing infiltration of stormwater. The applicant determined that neighboring property to the south, streets and surface and subsurface water quality (the private canal serving Swalley irrigation water to the subject parcel only) will not be adversely impacted by any surface drainage from the proposed campground or its construction. This is due to the small amount of ground disturbance and paving being proposed, soil type in the area and the location of the proposed use in relation to neighboring properties and the highway. The impervious surface areas and square footages associated with the proposed campground are mapped and described in the Site Plan. The total area of the impervious surface is less than 3,100 square feet in total, but is scattered throughout the proposed campground area, which is generally in the center of an approximately 10-acre parcel. The total area is below the threshold for stormwater management under the guidelines published by the Central Oregon Stormwater Manual (COSM). The amount of pervious ground disturbance area associated with the proposed graveled camp road, turnaround and 14 camp and yurt parking spaces is approximately 0.9 acres (39.204 square feet).15 The location of the elongated gravel surface is in an area where stormwater will drain into the soil; stormwater mitigation is not required under the COSM. Nevertheless, the applicant states that best rnanagernent practices (SMP) will be taken during construction of the proposed access road. The Hearings Officer finds runoff from impervious surfaces will be retained on -site and will not adversely impact neighboring properties, streets, or surface and subsurface water quality. This criterion will be met. G. Areas, structures and facilities for storage, machinery and equipment, services (mail, refuse, utility wires, and the like), loading and parking and similar accessory areas and structures shall be designed, located and buffered or screened to minimize adverse impacts on the site and neighboring properties. FINDING: The applicant states that the Site Plan illustrates that accessory areas have been designed and will be located a substantial distance from the natural canyon and adjoining property lines to minimize adverse impacts on the site and neighboring properties. There is no proposed area, structure or facility that will be used for the storage of anything relating to the proposed campground. Any equipment or materials relating to the maintenance of the campground facilities, including extra road material or small watering tank, will be located and buffered or screened to minimize adverse impacts on the site and neighboring properties. No additional structures will be needed, as the existing residence will be used as the 15 The parking area for the 15th space, Yurt #5, and toilet areas, will be paved. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 62 000583-MA caretaker's residence and includes indoor storage for supplies for the restroom facilities and cleaning. The Hearings Officer notes that the applicant's burden of proof and Site Plan do not address a shower facility, which is a required structure at the campground, including its design, finish colors, location or screening. The proposed trash refuse area will be located at the east end of the campground and will be screened from residences located on surrounding properties to minimize impacts. The applicant states that both the restroom and trash enclosures will be wood and/or finished in earth tone colors. The toilets are located at the west end of the campground near the communal area and turnaround, in an area where there is a large concentration of trees situated between it and the existing residential dwelling located south of the subject property. The applicant sited the facility in an area with mature native vegetation to help minimize impacts from neighboring properties. The 5 yurt coverings will be made of or dyed with earth tones, as well as buffered and/or screened by the natural vegetation, rock features and terrain located between the proposed use and surrounding neighboring properties. The wood gazebo also will be screened from neighboring properties by these features. The proposed access road and location of campsites have been designed to minimize visual impacts on neighboring properties, as well as to minimize tree removal and ground disturbance. The Hearings Officer finds that without information on the proposed shower facility, I cannot determine whether any adverse impacts on the site or adjoining properties will result. H. All above -ground utility installations shall be located to minimize adverse visual impacts on the site and neighboring properties. FINDING: The applicant is not proposing new above -ground utility installations for this project. Therefore, the Hearings Officer finds this criterion will be met. 1. Specific criteria are outlined for each zone and shall be a required part of the site plan (e.g. lot setbacks, etc.) FINDING: As indicated in foregoing findings, the proposed campground complies with specific criteria of the MUA-10 Zone. The Hearings Officer finds this criterion is met. J. All exterior lighting shall be shielded so that direct light does not project off -site. FINDING: The applicant states that only minimal outdoor solar lighting associated with the campground is proposed, including but not limited to the entrance to the toilets. It states that any such lighting will be directed downward and/or shielded so that direct light does not project off -site. Because the applicant did not include a shower facility on the site plan and did not address such a facility in its burden of proof, it is unclear whether the applicant would propose any exterior lighting for a Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 63 000583-MA shower facility. Nonetheless, the Hearings Officer finds this criterion may be met with a condition of approval. K. Transportation access to the site shall be adequate for the use. 1. Where applicable, issues including, but not limited to, sight distance, turn and acceleration/deceleration lanes, right-of-way, roadway surfacing and widening, and bicycle and pedestrian connections, shall be identified. 2. Mitigation for transportation -related impacts shall be required. 3. Mitigation shall meet applicable County standards in DCC 1&116.310, applicable Oregon Department of Transportation (ODOT) mobility and access standards, and applicable American Association of State Highway and Transportation Officials (AASHTO) standards. FINDING: The record includes a revised Site Traffic Report prepared by Joseph Bessman, PE, dated June 25, 2019. The study concluded the following: • The proposal will generate fewer than 10 weekday p.m. peak hour trips and less than 100 weekday daily trips; • The proposed use does not result in a change of use and the existing access is permitted; • Left- and right -turn lanes are not warranted at the entrance, but a left -turn median refuge area is provided along Highway 97 and a wide shoulder is available for southbound traffic; • AASHTO sight distance requirements are met; • Adequate shoulder widening to allow full separation of turning and through highway traffic is recommended. The County's Senior Transportation Planner agrees with the methodology and conclusions of the STR. Additionally, neither the Senior Transportation Planner nor ODOT identified any required mitigation for transportation -related impacts. Preliminary comments provided by ODOT state, "The existing access point is presumed to be permitted and must be designated as right -in, right out only." However, ODOT does not require a median concentrating or restricting northbound traffic from making a left turn off the highway. The STR does provide the following recommendations: • The entrance design should include adequate turning radii to support the tracking needs of larger recreational vehicles • Widening the southbound shoulder to allow separation of vehicles from southbound vehicles traveling on the highway • Intersection sight distance triangles should be maintained • The development should contribute toward County -wide transportation improvement projects The proposal does not trigger ODOT's Change of Use thresholds and does not meet the County's requirements for a Transportation Impact Analysis. Permits will be required from ODOT for any work within the right-of-way. As part of this permit, Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 64 000583-MA extension of a paved approach into the property and wider corner radii may be required to support the needs of larger recreational vehicles. The design of the access point will comply with any ODOT requirements for vegetation clearing within sight distance areas, or for improvements to the driveway surfacing and entry radius at the point of access. The Hearings Officer finds these criteria may be met with conditions of approval. Section 18.124.070. Required Minimum Standards. B. Required Landscaped Areas. 1. The following landscape requirements are established for multi -family, commercial and industrial developments, subject to site plan approval: a. A minimum of 15 percent of the lot area shall be landscaped. b. All areas subject to the final site plan and not otherwise improved shall be landscaped. FINDING: For the purposes of this criterion, the Hearings Officer finds the proposed campground is commercial. The landscape plan shows that more than 15 percent of the property will be landscaped as native vegetation. The Hearings Officer finds this criterion will be met. 2. in addition to the requirement of DCC 18.124.070(B)(1)(a), the following landscape requirements shall apply to parking and loading areas: a. A parking or loading area shall be required to be improved with defined landscaped areas totaling no less than 25 square feet per parking space. FINDING: The existing residence requires two parking spaces, which currently exist within a garage. The applicant proposes 15 on -site parking spaces associated with the campground. The additional 15 parking spaces will require a minimum of 375 square feet of landscaping in order to meet this criterion (15 * 25 = 375). Based on the submitted plans, significantly more than 375 square feet of area, including around the parking spaces for each campsite, will be landscaped as retained vegetation. The Hearings Officer finds this criterion will be met. b. In addition to the landscaping required by DCC 18.124.070(B)(2)(a), a parking or loading area shall be separated from any lot line adjacent to a roadway by a landscaped strip at least 10 feet in width, and from any other lot line by a landscaped strip at least five feet in width. FINDING: The proposed parking spaces for the campground will not be located adjacent to any property line or street. The Hearings Officer finds these criteria will be met. c. A landscaped strip separating a parking or loading area from a street shall contain: 1) Trees spaced as appropriate to the species, not to exceed 35 feet apart on the average. 2) Low shrubs not to reach a height greater than three feet zero inches, spaced no more than eight feet apart on the average. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 65 000583-MA 3) Vegetative ground cover. FINDING: The applicant proposes to retain landscaping located in defined areas, between and around all parking spaces, which will have a width of at least 5 feet. The Hearings Officer finds this criterion will be met. d. Landscaping in a parking or loading area shall be located in defined landscaped areas which are uniformly distributed throughout the parking or loading area. e. The landscaping in a parking area shall have a width of not less than rive feet. FINDING: Based on the submitted application, the retained landscaping will be located in defined areas, between and around all parking spaces, and will have a width of at least 5 feet. The Hearings Officer finds this criterion will be met. f. Provision shall be made for watering planting areas where such care is required. g. Required landscaping shall be continuously maintained and kept alive and attractive. FINDING: Care for the native landscaping is a naturally occurring process and is continuously maintained and kept alive and attractive. Nonetheless, the Hearings Officer finds that these criteria may be met with a condition of approval requiring the applicant to maintain continuously and keep alive and attractive all landscaping on the subject property. h. Maximum height of tree species shall be considered when planting under overhead utility lines. FINDING: The applicant is not proposing to plant trees under overhead utility lines. Therefore, the Hearings Officer finds this criterion is inapplicable. C. Nonmotorized Access. 1. Bicycle Parking. The development shall provide the number and type of bicycle parking facilities as required in DCC 18.116.031 and 18.116.035. The location and design of bicycle parking facilities shall be indicated on the site plan. FINDING: Compliance with DCC 18.116.031 and 18.116.035 is discussed below. 2. Pedestrian Access and Circulation: a. Internal pedestrian circulation shall be provided in new commercial, office and multi -family residential developments through the clustering of buildings, construction of hard surfaced walkways and similar techniques. b. Pedestrian walkways shall connect building entrances to one another and from building entrances to public streets and existing or planned transit facilities. On site walkways shall connect with walkways, sidewalks, bikeways, and other pedestrian or bicycle Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 66 000583-MA connections on adjacent properties planned or used for commercial, multi family, public or park use. c. Walkways shall be at least five feet in paved unobstructed width. Walkways which border parking spaces shall be at least seven feet wide unless concrete bumpers or curbing and landscaping or other similar improvements are provided which prevent parked vehicles from obstructing the walkway. Walkways shall be as direct as possible. d. Driveway crossings by walkways shall be minimized. Where the walkway system crosses driveways, parking areas and loading areas, the walkways must be clearly identifiable through the use of elevation changes, speed bumps, a different paving material or other similar method. e. To comply with the Americans with Disabilities Act, the primary building entrance and any walkway that connects a transit stop to building entrances shall have a maximum slope of five percent. Walkways up to eight percent slope are permitted, but are treated as ramps with special standards for railings and landings. FINDING: As discussed above, the Hearings Officer finds that the proposed campground is a "commercial" use. The applicant submits that there are no buildings or planned transit facilities requiring walkway connections under subsection 2(b), and that the references to walkways in subsections 2(c) through (e) refers to the walkways required under subsection 2(b). Accordingly, the applicant states that it need only provide "internal pedestrian circulation" that can be achieved through 'clustering of buildings, hard surfaced walkways and similar techniques" pursuant to subsection 2(a). The applicant further submits that paved walk:��ays are not required, but are simply one option for providing pedestrian circulation. The applicant states that the campground provides sufficient pedestrian circulation through the clustering of campsites and facilities supporting the campground and the use of gravel drives and the hardened trail system. The applicant further states that pavement will be used in the ADA yurt site to achieve compliance with the ADA, or as otherwise directed by the hearings officer. There are few, if any, crossings of the driveway, but the applicant stated that striping can be added near potential crossings such as the trash enclosure and driveway. The Hearings Officer finds that construction of a hard -surfaced walkway is but one technique to meet the requirements of subsection 2(a) for internal pedestrian circulation and is not directly required to establish compliance with these criteria. The proposed campsites are generally clustered in the center of the subject property, which the Hearings Officer finds will meet internal pedestrian circulation requirements. As staff noted in the staff report, as common with many public and private campgrounds, pedestrian circulation will occur on the main road through the campground. The Hearings Officer agrees with the applicant that subsections 2(b) through (e) are inapplicable because there are no new commercial buildings proposed and no existing or planned transit facilities in the area. The Hearings Officer finds that the requirement to provide internal pedestrian circulation is satisfied as set forth on the Site Plan. The Hearings Officer further finds that the applicant's offer to include Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 67 000583-MA striping on the driveway near potential pedestrian crossings should be included as a condition of approval if this Final Decision is appealed and the applications approved on appeal. For these reasons, the Hearings Officer finds the applicable criteria may be met with a condition of approval. CHAPTER 18.116. SUPPLEMENTARY PROVISIONS Section 18.116.020. Clear vision areas. A. In all zones, a clear vision area shall be maintained on the corners of all property at the intersection of two streets or a street and a railroad. A clear vision area shall contain no planting, fence, wall, structure, or temporary or permanent obstruction exceeding three and one-half feet in height, measured from the top of the curb or, where no curb exists, from the established street centerline grade, except that trees exceeding this height may be located in this area provided all branches and foliage are removed to a height of eight feet above the grade. B. A clear vision area shall consist of a triangular area on the corner of a lot at the intersection of two streets or a street and a railroad. Two sides of the triangle are sections of the lot lines adjoining the street or railroad measured from the corner to a distance specified in DCC 18.116.020(B)(1) and (2). Where lot lines have rounded corners, the specified distance is measured from a point determined by the extension of the lot lines to a point of intersection. The third side of the triangle is the line connecting the ends of the measured sections of the street lot lines. The following measurements shall establish clear vision areas within the County. 1. In an agricultural, forestry or industrial zone, the minimum distance shall be 30 feet or at intersections including an alley, 10 feet. 2. In all other zones, the minimum distance shall be in relationship to street and road right of way widths as follows: Right -of -Way Width Clear Vision 80 feet or more 20 feet 60 feet 30 feet 50 feet and less 40 feet FINDING: Based on the submitted site plan, no clear vision area will be obstructed with the existing access point. The Hearings Officer finds this criterion will be met. Section 18.116.030. Off Street Parking and Loading. A. Compliance. No building or other permit shall be issued until plans and evidence are presented to show how the off-street parking and loading requirements are to be met and that property is and will be available for exclusive use as off-street parking and loading. The subsequent use of the property for which the permit is issued shall be conditional upon the unqualified continuance and availability of the amount of parking and loading space required by DCC Title 18. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 68 000583-MA B. Off -Street Loading. Every use for which a building is erected or structurally altered to the extent of increasing the floor area to equal a minimum floor area required to provide loading space and which will require the receipt or distribution of materials or merchandise by truck or similar vehicle, shall provide off-street loading space on the basis of minimum requirements as follows: 2. Restaurants, office buildings, hotels, motels, hospitals and institutions, schools and colleges, public buildings, recreation or entertainment facilities and any similar use which has a gross floor area of 30,000 square feet or more shall provide off street truck loading or unloading berths subject to the following table: Sq. Ft. of Floor Area No. of Berths Required Less than 30,000 0 30,000-100,000 1 100,000 and Over 2 FINDING: Existing and proposed development will be less than 30,000 square feet of floor area. Therefore, the Hearings Officer finds no loading berth is required. C. Off -Street Parking. Off-street parking spaces shall be provided and maintained as set forth in DCC 1 & 116.030 for all uses in all zoning districts. 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 18 is changed. D. Number of Spaces Required. Off-street parking shall be provided as follows: 1. Residential. Use Requirements One, two and three family dwellings 2 spaces per dwelling unit 9. Other uses not specifically listed above shall be provided with adequate parking as required by the Planning Director or Hearings Body. The above list shall be used as a guide for determining requirements for said other uses. FINDING: The existing residence requires two parking spaces, which currently exist. The residence is proposed to become the campground caretaker's residence. The applicant proposes 15 on -site parking spaces associated with the campground. The applicant submits that off-street parking for the exclusive use of the campground will be available and in compliance with these criteria. DCC 18.116.030(9) provides for uses not specifically listed, and the required number of spaces for a campground use "shall be provided adequate parking as required by Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 69 000583-MA the Planning Director or Hearings Body." The applicant believes that the specific use standards governing campgrounds in DCC 18.128.320 includes provisions for the required number of parking spaces for campgrounds, which are applicable for determining "adequate parking" under DCC 18.116.030(9). The applicant is proposing one parking space per campsite, based on having only one vehicle per site. The proposed campground is for 15 campsites, which therefore requires 15 parking spaces for the campground use, as proposed. The Hearings Officer finds this criterion will be met. E. General Provisions. Off -Street Parking. 1. More Than One Use on One or More Parcels. In the event several uses occupy a single structure or parcel of land, the total requirement for off- street parking shall be the sum of requirements of the several uses computed separately. 2. Joint Use of Facilities. The off-street parking requirements of two or more uses, structures or parcels of land may be satisfied by the same parking or loading space used jointly to the extent that it can be shown by the owners or operators of the uses, structures or parcels that their operations and parking needs do not overlap at any point of time. If the uses, structures or parcels are under separate ownership, the right to joint use of the parking space must be evidence by a deed, lease, contract or other appropriate written document to establish the joint use. FINDING: The applicant is proposing two uses on a single 9.53-acre parcel — an existing single-family dwelling and a campground. The applicant submits that adequate parking is already available to both the residential use and the proposed campground use, based on the total requirement for off-street parking. The existing dwelling will be used as the caretaker residence. No other uses or businesses will be sharing the proposed off-street parking facility. Therefore, the Hearings Officer finds criteria (1) and (2) will be satisfied. 3. Location of Parking Facilities. Off-street parking spaces for dwellings shall be located on the same lot with the dwelling. Other required parking spaces shall be located on the same parcel or another parcel not farther than 500 feet from the building or use they are intended to serve, measured in a straight line from the building in a commercial or industrial zone. Such parking shall be located in a safe and functional manner as determined during site plan approval. The burden of proving the existence of such off -premise parking arrangements rests upon the applicant. FINDING: All required parking will be located on the same parcel as the use. The Hearings Officer finds this criterion will be met. 4. Use of Parking Facilities. Required parking space shall be available for the parking of operable passenger automobiles of residents, customers, Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 70 000583-MA patrons and employees only and shall not be used for the storage of vehicles or materials or for the parking of trucks used in conducting the business or used in conducting the business or use. FINDING: None of the proposed campground parking spaces will be used for the storage of vehicles or materials or for the parking of trucks or any other vehicle used in conducting campground business. The Hearings Officer finds this criterion may be met with a condition of approval to ensure compliance. 5. Parking, Front Yard. Required parking and loading spaces for multi- family dwellings or commercial and industrial uses shall not be located in a required front yard, except in the Sunriver UUC Business Park (BP) District and the La Pine UUC Business Park (LPBP) District and the La Pine UUC Industrial District (LPI), but such space may be located within a required side or rear yard. FINDING: The parking spaces will not be located in a required front yard. Therefore, the Hearings Officer finds this criterion will be satisfied. F. Development and Maintenance Standards for Off -Street Parking Areas. Every parcel of land hereafter used as a public or private parking area, including commercial parking lots, shall be developed as follows: 1. Except for parking to serve residential uses, an off-street parking area for more than five vehicles shall be effectively screened by a sight obscuring fence when adjacent to residential uses, unless effectively screened or buffered by landscaping or structures. FINDING: The proposed campground will be centrally located on the subject property. The campground is over 300 feet from Highway 97 to the east. Residential uses may be found to the north, south, and west of the subject property. The closest residential use is just over 100 feet south of the campground use. Beyond that, the next closest residential uses are approximately 350 feet to the north and south. The applicant submits that each camp site, including yurts, will have its own parking space for tent or yurt campers, or small trailer or RV. No parking lot area is proposed. The applicant will retain native vegetation, including trees and shrubs that provide screening and buffering of the parking areas. Cramer Farms expressed concern over proper screening of the campground use and its parking. The applicant is agreeable to a condition of approval requiring construction of sections of solid fencing, constructed of natural materials, to cover any gaps to block views of the parking area to surrounding properties. The Hearings Officer finds this criterion may be met with a condition of approval. 2. Any lighting used to illuminate off-street parking areas shall be so arranged that it will not project light rays directly upon any adjoining property in a residential zone. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 71 000583-MA FINDING: The applicant is proposing minimal lighting, primarily solar battery lighting at the communal area and restroom facility. As noted above, it is not clear whether lighting would be proposed for a shower facility. No other lighting will be used to illuminate off-street parking areas. The lighting proposed will be sited and shielded so that light is directed downward and is not directly visible neighboring properties. The Hearings Officer finds this criterion may be met with a condition of approval to ensure compliance. 3. Groups of more than two parking spaces shall be located and designed to prevent the need to back vehicles into a street or right of way other than an alley. FINDING: The proposed campground does not include more than two parking spaces grouped together. Moreover, parking is not located near a street right-of- way. The Hearings Officer finds this criterion is not applicable. 4. Areas used for standing and maneuvering of vehicles shall be paved surfaces adequately maintained for all weather use and so drained as to contain any flow of water on the site. An exception may be made to the paving requirements by the Planning Director or Hearings Body upon finding that. a. A high water table in the area necessitates a permeable surface to reduce surface water runoff problems; or b. The subject use is located outside of an unincorporated community and the proposed surfacing will be maintained in a manner which will not create dust problems for neighboring properties; or c. The subject use will be in a Rural Industrial Zone and dust control measures will occur on a continuous basis, which will mitigate any adverse impacts on surrounding properties. FINDING: The applicant submits that it qualifies for an exception to paving requirements because the subject property is outside of an unincorporated community, the subject property is not within an area that has a high water table and the subject property does not fall within a Rural Industrial Zone. The applicant is proposing gravel, and not dirt, roadways. The applicant states that gravel controls dust because the porous nature allows for dust to settle within the gravel as opposed to the surface (as happens with paved surfaces). Moreover, the applicant proposes a 5 mph speed limit to preserve the integrity of the gravel and its dust abatement characteristics. The applicant proposes to apply water and/or magnesium chloride as dust abatement. The roadways and parking areas will be improved with clean 3/4 inch minus gravel surface. Based on this information, the Hearings Officer finds the applicant qualifies for an exception to the paving requirements. The Hearings Officer finds these criteria may be met with conditions of approval that the road and parking spaces be improved and maintained as proposed in a manner which will not create dust problems for neighboring properties. 5. Access aisles shall be of sufficient width for all vehicular turning and maneuvering. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 72 000583-MA FINDING: As permitted in DCC 18.128.320(D)(5), roadways for a campground can be a minimum of 20 feet in width for two-way traffic. The Hearings Officer finds the specific 20-foot width standard in DCC 18.128.320(D)(5) supersedes the general standards under DCC 18.116.030, which require 24-foot aisle width for two-way travel. The applicant is proposing the access aisle and service road to be a minimum of 20 feet in width, which will allow for adequate two-way traffic. The Hearings Officer finds this criterion will be met. 6. Service drives to off-street parking areas shall be designed and constructed to facilitate the flow of traffic, provide maximum safety of traffic access and egress and maximum safety of pedestrians and vehicular traffic on the site. The number of service drives shall be limited to the minimum that will accommodate and serve the traffic anticipated. Service drives shall be clearly and permanently marked and defined through the use of rails, fences, walls or other barriers or markers. Service drives to drive in establishments shall be designed to avoid backing movements or other maneuvering within a street other than an alley. FINDING: The project includes use of an existing gravel driveway from Highway 97 that will lead to the gravel access aisle and parking spaces serving the campground. No new access driveways are proposed. The existing driveway is 20 feet in width, as permitted in DCC 18.128.320(D)(5). Existing and proposed roadways will be clearly marked by the gravel surface and the mature vegetation bordering the driveways. As noted above, no backing or maneuvering onto streets or rights -of -way For th the H ff' finds phi nr ion will ho will be necessary. rul Lllese leajollAJ, tIIG Hearings OIli�icr iii�ua ti n.�i vit�. r.w met. 7. Service drives shall have a minimum vision clearance area formed by the intersection of the driveway centerline, the street right of way line and a straight line joining said lines through points 30 feet from their intersection. FINDING: The Hearings Officer finds that the record shows the minimum clear vision area at the intersection of the existing driveway with Highway 97 is met. 8. Parking spaces along the outer boundaries of a parking area shall be contained by a curb or bumper rail placed to prevent a motor vehicle from extending over an adjacent property line or a street right of way. FINDING: Given the distances from the parking spaces to the property lines, along with intervening vegetation and development, the Hearings Officer finds vehicles within the campground will not extend over any property line or right-of-way. For this reason, the Hearings Officer finds curbs or bumper rails are not necessary. G. Off -Street Parking Lot Design. All off-street parking lots shall be designed subject to County standards for stalls and aisles as set forth in the following drawings and table: (SEE TABLE 1 AT END OF CHAPTER 18.116) Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 73 000583-MA 1. For one row of stalls use "C" + "D" as minimum bay width. 2. Public alley width may be included as part of dimension "D," but all parking stalls must be on private property, off the public right of way. 3. For estimating available parking area, use 300-325 square feet per vehicle for stall, aisle and access areas. 4. For large parking lots exceeding 20 stalls, alternate rows may be designed for compact cars provided that the compact stalls do not exceed 30 percent of the total required stalls. A compact stall shall be eight feet in width and 17 feet in length with appropriate aisle width. FINDING: The County standards for stalls and aisles is set forth in Table 1. Pursuant to Table 1, stall width is based on the parking angle, and ranges from nine (9) to 10 feet. The proposed parking stall length varies based on angle but primarily is set for approximately 20 feet. The Hearings Officer finds that the each of the proposed vehicular parking spaces meet or exceed the minimum 9-foot wide by 20-foot long parking and stall dimensions in Table 1. As discussed in the findings above, the 20-foot access aisle meets the minimum width for two-way traffic specific to campgrounds. This criterion is met. Section 18.116.031. Bicycle Parkinq. New development and any construction, renovation or alteration of an existing use requiring a site plan review under DCC Title 18 for which planning approval is applied for after the effective date of Ordinance 93-005 shall comply with the provisions of DCC 18.116.031. A. Number and Type of Bicycle Parking Spaces Required. 1. General Minimum Standard. a. All uses that require off-street motor vehicle parking shall, except as specifically noted, provide one bicycle parking space for every rive required motor vehicle parking spaces. b. Except as specifically set forth herein, all such parking facilities shall include at least two sheltered parking spaces or, where more than 10 bicycle spaces are required, at least 50 percent of the bicycle parking spaces shall be sheltered. c. When the proposed use is located outside of an unincorporated community, a destination resort, and a rural commercial zone, exceptions to the bicycle parking standards may be authorized by the Planning Director or Hearings Body if the applicant demonstrates one or more of the following: i The proposed use is in a location accessed by roads with no bikeways and bicycle use by customers or employees is unlikely. ii. The proposed use generates less than 50 vehicle trips per day. iii. No existing buildings on the site will accommodate bicycle parking and no new buildings are proposed. iv. The size, weight, or dimensions of the goods sold at the site makes transporting them by bicycle impractical or unlikely. v. The use of the site requires equipment that makes it unlikely that a bicycle would be used to access the site. Representative Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 74 000583-MA examples would include, but not be limited to, paintball parks, golf courses, shooting ranges, etc. FINDING: The applicant submits that the proposed use qualifies for an exception to the general minimum standards for number and type of bicycle parking spaces, when off-street motor vehicle parking is required, and to the bicycle parking design standards. The Hearings Officer has authority to approve an exception to the bicycle parking standards because the proposed use is located outside of an unincorporated community, a destination resort and a rural commercial area. The Hearings Officer approves the requested exception based on the fact the proposed use is accessed by Highway 97, which does not contain bikeways, such as designated bike lanes (DCC 18.116.031(1)(c)(i). Moreover, the record shows that the proposed use will generate less than 50 vehicle trips per day (DCC 18.116.031(1)(c)(ii). A showing to support any one of the circumstances set forth in DCC 18.116.031(1)(c) is a sufficient basis to grant an exception. Section 18.116.310 Traffic Impact Studies. FINDING: The applicant's traffic engineer met with County staff in a pre -application conference on October 3, 2018 to discuss study requirements. The applicant submitted a Site Traffic Report, which is included in the record. The Hearings Officer finds this criterion is met. Title 15, Deschutes County Buildings and Construction Ordinance CHAPTER 15.08. SIGNS Section 15.08.060. Sign Permit. Except as provided in DCC 15.08.070, no sign shall be erected, structurally altered or relocated until a sign permit has been issued. FINDING: The applicant is proposing a campground on the subject property and has indicated that a sign for the campground will be proposed at the driveway access point on the highway. The Hearings Officer finds this criterion may be met with a condition of approval ensuring compliance. Oregon Administrative Rules (OAR) Chapter 333, Oregon Health Authority, Public Health Division DIVISION 31. OPERATION AND MAINTENANCE OF RECREATION PARKS FINDING: The applicant submits that the proposed campground has been designed so that the layout will meet the general and special rules for overnight campgrounds under OAR 660-031, Operation and Maintenance of Recreational Parks. It states that the owner will secure an operating license from the Oregon Health Authority (OHA) before opening the campground facility to public use. Approval of the subject applications from Deschutes County in this Final Decision is required per OAR 660- 031-0061(1): Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 75 000583-MA No approval of construction, enlargement, or alteration plans will be given unless the applicant for approval submits to the Division a written determination supported by written findings as required in ORS 215.416(6) or 227.173(2) from the unit of local government having comprehensive planning authority over the proposed construction, enlargement, or alteration site, that the proposed project is compatible with the Land Conservation and Development Commission acknowledged comprehensive plan, as defined in OAR 660-031-0010(1), or where there is no acknowledged local comprehensive plan, or in those instances described in OAR 660-031-0020(3), that the proposed project is in compliance with the Land Conservation and Development Commission's statewide planning goals under ORS Chapter 197. Findings for an activity or use addressed by the acknowledged comprehensive plan in accordance with OAR 660-031-0020, may simply reference the specific plan policies, criteria, or standards which were relied upon in rendering the decision and state why the decision is justified based on the plan polices, criteria or standards. The determination shall be on a form supplied by the Division accompanied by attachments as necessary. With respect to drinking water at the proposed campground, the applicant must comply with OAR 660-031-0004 (Water Supply). Per subsection (2), water supply systems serving traveler's accommodations and hostels shall comply with OAR 333- 061-0005 through-0095,16 and must be regulated: (a) as a Public Water System under Division 61; or (b) water systems serving traveler's accommodations and hostels that are not regulated under Division 61 must meet a set of rules for unregulated systems under OAR 333-031-0004(3). The applicant is required to submit an application for plan review by the OHA for an "Unregulated Small Drinking Water System" ender OAR 333-031-0004(3) (as defined in OAR 333-031- 0002(17)).17 The applicant states that, as required under OAR 333-031-0004(4), (5) and (6), the water distribution system will be designed, constructed, approved and maintained in compliance with the requirements of the Oregon Department of Consumer and Business Services, Building Code Division, including the 2000 Oregon Plumbing Specialty Code. The owner or operator of the proposed campground will not supply the campers with common drinking cups or vessels. If a drinking fountain is provided, the owner will install an approved angle jet type with adequate water pressure at all times while it is in use. The applicant submitted test results performed by Umpqua Research of the on -site groundwater well for E.coli and Total Coliform. The results showed the water was absent of these substances. The applicant states that, as a condition of approval, the applicant will submit the final plan for the water supply system serving the proposed campground to the OHA 16 OAR 333-061 sets forth regulations of Drinking Water, the purpose of which is "to provide a basis for implementing the Oregon Drinking Water Quality Act of 1981, enacted to assure safe drinking water at all water systems which serve the public, and to promote coordination between the programs for supervising water systems which are conducted by the Authority and the U.S. Environmental Protection Agency." 77 OAR 333-031-0002(17) defines "unregulated small drinking water system" as "a facility licensed under the authority of these rules that is not regulated under OAR 333-061, Public Water Systems. These systems must comply with the requirements of OAR 333-031-0004." Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 76 000583-MA prior to construction or major modification of the water system. Quarterly sampling as defined by rule will be taken for year-round facility in accordance with OAR 333- 031-0004(3)(a)-(f). An operating license will be secured from OHA before opening the campground facility to the public and will provide authorities with a pre -opening inspection. The Hearings Officer finds that compliance with these regulations may be met with a condition of approval. As discussed in the findings above, the applicant also is proposing to install a dry well for the disposal of dish washing water. OAR 333-031-0006 governs Sewage and Liquid Waste Disposal. The regulations state: (1) Sewage and waste water shall be disposed of into a public sewerage system or in a manner approved by the Department of Environmental Quality, OAR 340- 071-0100 to 340-071-0600. (2) All sewage collection systems when provided shall be designed, constructed, approved and maintained in compliance with the requirements of the Oregon Department of Consumer and Business Services, Building Codes Division, and, where applicable, the additional statutes, rules and standards set forth by the Department of Environmental Quality. New sewage collection systems and recreational vehicle waste disposal stations, or systems remodeled, enlarged or converted after the effective date of these rules must meet the requirements of the 2000 Oregon Plumbing Specialty Code. (3) No liquid wastes shall be discharged onto the ground or allowed to accumulate on the ground surface. (4) in lieu of individual sevver connections, �s, at least one kitchen waste water disposal facility shall be provided for the recreation park. A kitchen waste water disposal facility shall: (a) Discharge into a public sewerage system. (b) If such a system is not available then liquid wastes shall be disposed of in a manner approved by the Department of Environmental Quality, OAR 340-071- 0100 through 340-071-0600. Cramer Farms alleges that the applicant has failed to demonstrate that DEQ rules allow disposal of kitchen waste water (dish water) in a drill hole, and that the rules do not authorize the use of dry wells. The Hearings Officer finds that, absent information and analysis from the applicant sufficient to meet its burden of proof, I cannot condition approval on compliance with this regulation because there is no evidence that compliance is feasible. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 77 000583-MA Chapter 918, Department of Consumer and Business Services, Building Codes Division DIVISION 650. RECREATION PARKS AND ORGANIZATIONAL CAMPS18 OAR 918-650-0020. Permit Required. No person may establish or enlarge the facilities of any recreation park or organizational camp or do any construction within the recreation park or organizational camp or cause the same to be done without first obtaining all required permits from the building official and paying the prescribed permit fees. Multiple permits may be required when the proposed work involves two or more code areas (i.e., structural, electrical, plumbing, or mechanical). EXCEPTION: Applications for permits, submission of plans and payment of fees are not required for additions, alterations, relocation and maintenance of picnic tables, play equipment, fire pits and similar facilities in existing parks. FINDING: The Hearings Officer finds that there is insufficient evidence to support a finding that these criteria may be met with a condition of approval, because not all required aspects of a campground are proposed (showers and lavatories) and some aspects of the proposed campground may not be allowable under applicable regulations (e.g. drywell). OAR 918-650-0025. Coordinating Regulation. Permit Issuance: (1) The application, plans, specifications, computations and other data filed by an applicant must be reviewed by the building official. Such plans may be reviewed by other departments or agencies to verify compliance with any applicable laws under their jurisdiction. If the building official finds that the work described in the application for a permit and the plans, specifications and other data filed conform to the requirements of these rules and other pertinent laws and ordinances, and that the fees have been paid, the building ofcial must issue a permit to the applicant. Regulations that also apply to recreation parks and organizational camps are: (a) Land Use. Land use must comply with the regulations of the unit of government which has planning authority over the proposed construction site; FINDING: The proposed campground use will include several components that may require building or associated permits (e.g. electrical or plumbing). The Hearings 180AR 918-650-0010 establishes the scope and purpose of the chapter. Subsection (1) states that it "establishes minimum safety standards for the design and construction of recreation parks and organizational camps as authorized in ORS 455-680." Subsection (2) states "[t]hese rules establish design and construction requirements for recreation parks and organizational camps for the purpose of protecting the life, health, safety and welfare of patrons using these facilities." Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 78 000583-MA Officer finds that these criteria may be met with a condition of approval requiring the applicant to secure all necessary permits from the Building Official. The Hearings Officer is reviewing the proposed land use in this Decision to determine whether it complies with Deschutes County regulations; the County has planning authority over the proposed construction site. (b) Flood Zones. Buildings or areas used within a flood zone must be approved by the agency having jurisdiction prior to the issuance of permits; FINDING: The subject property is not located within the Flood Plain Zone. The Hearings Officer finds this standard does not apply. (c) Water Supply. Water supply systems must comply with regulations under the Department of Human Services Oregon Health Authority; FINDING: The project will include a potable water station, drywell for dishwater disposal, two toilets, and trash receiving area. As discussed above, the project must also include a shower facility. The applicant will be required to secure permit approval for a public water system. Compliance with OHA regulations set forth in OAR 333-031 and 333-061 is set forth in findings above. As discussed above, it is unclear whether all components of the proposed water supply system will comply with applicable regulations. Approval should not be granted on appeal absent a finding that this standard may be met with a condition of approval that requires the campground water supply system to comply with applicable regulations in OAR 333- 031 and 333-061. (d) Sewage Disposal. Sewage treatment and disposal facilities, including, but not limited to, on -site facilities, solid waste container wash -down facilities, gray water waste disposal systems, pit privies, vaults and chemical toilets, must comply with regulations under the Oregon Department of Environmental Quality; FINDING: As discussed in the findings above, Cramer Farms argues that the proposed drain field is not adequate (or that analysis has not been completed to determine adequacy) for a shower facility and required lavatories. Cramer Farms also argues that a dry well for disposal of gray water (dish water) is not authorized by DEQ rules. The applicant submits that the term "lavatory" is not defined in the regulations and that there are no standards as to what constitutes a lavatory. The applicant further argues that there is no requirement that a lavatory have running water, be located in any specific location or that it be a distinct structure. The applicant states that it meets this requirement by providing a sink with running water in the kitchen area and non -watered hand -washing stations within the toilet facility "as are common in campground bathrooms." As noted above, the applicant has not proposed a required shower facility. The Hearings Officer finds that Table 3-RV requires both toilets and lavatories. The dictionary definition of lavatory is instructive where the regulations do not include a definition of lavatory. The Hearings Officer agrees with the applicant that a "basin for Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 79 000583-MA washing," does not necessarily require running water. However, because no lavatories have been proposed, and because details of a shower facility have not been proposed, I cannot make a finding regarding compliance with this regulation. Further, as noted above, the Hearings Officer finds that a condition of approval requiring the applicant to secure a wastewater permit approval from DEQ cannot be imposed without a showing by the applicant that it is feasible to obtain such a permit. (e) Solid Waste Disposal. Solid waste disposal must comply with regulations under the Department of Human Services Oregon Health Authority and such waste must be disposed of in a manner that complies with regulations under the Oregon Department of Environmental Quality; (t) Eating and Drinking Establishments. Eating and drinking establishments must comply with regulations under the Department of Human Services Oregon Health Authority; (g) Ice Machines. Ice machines must comply with regulations under the Oregon State Department of Agriculture; FINDING: The applicant is not proposing an eating and drinking establishment with the proposed campground. The Hearings Officer finds the criteria regarding solid waste disposal and ice machines may be met with a condition of approval requiring compliance with regulations under the Oregon Health Authority, DEQ and the Oregon State Department of Agriculture, to ensure compliance with standards (e) and (g) above. (h) State Building Code. Buildings and structures must comply with the State Building Code and where applicable to rules adopted thereunder; FINDING: The proposed campground includes structures that may require building or associated permits (e.g. electrical or plumbing). Cramer Farms argues that the proposed toilet design fails to comply with ADA accessibility requirements and does not provide room for sinks. It also notes that the applicant has not addressed floor drain or screen requirements. The Hearings Officer finds that, absent additional information and analysis from the applicant, I cannot find this criterion may be met with a condition of approval requiring the applicant to secure all necessary permits from the Building Official. (i) Highway, Street and Driveway Permits. Access must comply with the regulations of the city, county or State Highway Division having jurisdiction over access to the public roads; FINDING: The applicant proposes to use the existing access driveway from Highway 97. The Hearings Officer finds this criterion may be met with a condition of approval requiring the applicant to comply with any regulations the State Highway Division having jurisdiction over access to the public road. (j) Fire Protection. Fire protection facilities must comply with the requirements of the appropriate jurisdiction's fire protection regulations; Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 80 000583-MA FINDING: The record includes comments from Bend Fire Department. The Hearings Officer finds that this criterion may be met with a condition of approval requiring the applicant to submit to the Planning Division a letter from Bend Fire and Rescue stating that all required fire protection regulations have been met prior to initiating the campground use. (k) Liquefied Petroleum Gas (LPG). Liquefied petroleum gas installations must comply with the regulations of the Oregon State Fire Marshal; (1) Swimming Pools and Spas. Swimming Pools and spas must comply with regulations under the Department of Human Services Oregon Health Authority; (m) Hostels. Hostels must comply with the Oregon State Building Code and with regulations under the Department of Human Services Oregon Health Authority; FINDING: The components listed in standards (k — m) are not proposed as part of this campground application. The Hearings Officer finds these standards do not apply. (n) Engineers/Architects Design. When required, park and camp designs must be prepared by a registered design professional. FINDING: The proposed campground design was prepared by design professionals BECON Civil Engineering and Land Surveying. The Hearings Officer finds this standard is met. (2) Recreation Park and Organizational Camp Operating License Approved parks and camps must comply with any operating license requirements established by the Department of Human Services Oregon Health Authority. FINDING: The Hearings Officer finds this requirement may be met with a condition of approval to ensure compliance. OAR 918-650-0035. Plans and Specifications. (1) Plans. With each application for a plan review the applicant must submit two sets of construction plans and specifications. Plans and specifications must be drawn to scale, of sufficient clarity to indicate the nature and extent of the work proposed and to show in detail that the construction will conform to all relevant laws, rules and regulations of the State of Oregon pertaining to recreation parks and organizational camps. NOTE. The construction shown on these plans may contain construction details required by other rules or regulations in order to aid other agencies in determining compliance with their coordinating regulations. (2) Design. All plans must be designed in accordance with the requirements of the various codes and administrative rules and, where required, must be designed by a registered design professional. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 81 000583-MA (3) Plan Format and Sequence. The following plan format and sequence specification are guidelines for both the designer and the plan reviewer. Deviations are permitted from strict compliance with the plan format and sequence specifications when such deviation will produce the same result. (a) The cover sheet of each set of plans must give the following: (A) The name of the recreation park or organizational camp and the location (vicinity map); (B) The name of the owner; (C) The name of the operator; (D) The name of the person who prepared or submitted the plans; (E) The symbols used; and (F) The design maximum occupancy load for organizational camps. (b) The plot plan (on a separate sheet) must include: (A) Both proposed and existing construction; and (B) A scale drawing of the general layout of the entire recreation park or organizational camp showing property survey monuments in the area of work and distances from park or camp boundaries to public utilities located outside the park or camp (indicated by arrows without reference to scale). EXCEPTION: When the work involves an addition to, or a remodeling of, an existing recreation park or organizational camp, the plot plan must show the facilities related to the addition and/or the facilities to be remodeled. (4)(a) The following features must be clearly shown and identified. (A) The permanent buildings (dwellings, mobile homes, washrooms, recreation buildings, and similar structures); 'B) .The fixed facilities in each space (fire pits, fireplaces or cooking facilities); (C) The property line boundaries and survey monuments in the area of work; (D) The location and designation of each space by number, letter or name; and (E) Plans for combination parks must also show which portions of the parks are dedicated to camp ground, organizational camp, mobile home park, picnic park, recreational vehicle park and joint use. (b) Park and organizational camp utility systems must be clearly shown and identified on a separate sheet. (A) Location of space sewer connections, space water connections and service electrical outlets; (B) Location and source of domestic water supply; (C) Location of water and sewer lines (showing type, size and material); (D) Park or camp street layout and connections to public street(s); (E) Disposal systems, such as septic tanks and drain fields, recreational vehicle dump stations, gray water waste disposal sumps, washdown facilities, sand filters, and sewer connections; (F) Fire protection facilities, such as fire hydrants, fire lines, tanks and reservoirs, hose boxes and apparatus storage structures; (G) Solid waste disposal system and solid waste collection features, such as refuse can platforms and supports, and wash -down facilities; and (H) Liquid Petroleum Gas (LPG) tanks and gas lines. (c) Park Topography. Park topography must be shown in the area of work when any existing grade or slope exceeds five percent. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 82 000583-MA FINDING: The Hearings Officer finds the applicant has submitted two sets of construction plans and specifications with its application for site plan review, designed by a registered design professional. The Hearings Officer finds that the plan format and sequence specification guidelines in OAR 918-650-0035(3) are met. The plans and specifications submitted are drawn to scale and are of sufficient clarity to indicate the nature and extent of the work proposed to show in detail that the construction will conform to all relevant laws, rules and regulations of the State of Oregon pertaining to recreation parks and organizational camps. As noted above, the submitted plans and specifications do not include a depiction of a shower facility, as required in DCC 18.128.320(D)(3) and do not describe lavatory facilities. Accordingly, the Hearings Officer finds that all features set forth in OAR 918-650-0035(4)(a)(A), in particular, have not been clearly shown and identified. OAR 918-650-0045. General Construction Requirements. (1) Combination Parks. The portions of combination parks which are dedicated to campground, organizational camp, picnic park, mobile home park or recreational vehicle park use must be identified and each use must comply with the applicable regulations. Jointly used areas must be designated accordingly. FINDING: The applicant is not proposing a combination park. The Hearings Officer finds this regulation is not applicable. (2) Space Separation and Designation. Building or space separation and space designation must be as follows: (a) The distance between buildings must be as required in the Oregon Structural Specialty Code; (b) The distance between spaces must be as provided in OAR 918-650-0055(1); (c) Spaces must be identified by signs or markings corresponding to the letters, numbers or names indicated on the approved plans. FINDING: The site plan shows distances between spaces and corresponding space and yurt numbers. The Hearings Officer finds this criterion is met. (3) Access. Each space designed for vehicular use within a recreation park or organizational camp must have direct access to a park, street or road. The access may not be obstructed by grade or vertical clearance. The entrance to roads with impaired clearance must be provided with warning signs. FINDING: The access to the proposed campground is not obstructed by grade or vertical clearance and the existing access entrance to the residence and proposed campground will be improved, as necessary, to meet ODOT standards, including vision clearance. The Hearings Officer finds this criterion may be met with conditions of approval. (4) Street Width. Park streets intended for use by the public must be of adequate width to accommodate the planned parking and traffic load. Each traffic lane must be ten feet minimum width. Where parking is permitted on Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 83 000583-MA park streets, each parking lane must be ten feet minimum width. All two-way streets without parking must be 20 feet minimum width. FINDING: The site plan shows a 20-foot gravel road, No parking is proposed along the camp access road. The Hearings Officer finds this criterion is met. (5) Connection to a Public Way. The park street system must have direct connection to a public way. FINDING: The proposed campground access has direct connection to Highway 97, a public way. The Hearings Officer finds this criterion is met. (6) Park Roads and Streets. Roads and streets intended for use by the public must be designed for minimum nine -ton gross loads and streets and walkways must be well drained. The street surface may be asphaltic -concrete, portland cement concrete, crushed rock, gravel or other approved surface material. FINDING: The first portion of the camp access road is an existing driveway serving the residence located on the subject property. The portion of the proposed camp access road will be improved for minimum nine -ton gross load with clean 3/" minus gravel. The remaining portion of the proposed camp access road is new and will be designed to be well drained, for minimum nine -ton gross load and comprised of clean 3/" minus gravel. The Hearings Officer finds this criterion may be met with a condition of approval. (7) Cleanable Construction. Fireplaces, fire pits or cooking facilities must be of cleanable construction and designed to permit easy removal of ash and other waste. FINDING: The proposed communal gathering area will include a fireplace and a portable outdoor cooking station that are made of cleanable construction and designed to permit easy removal of ash and wood waste. No campfires or BBQ pits/stands will be allowed at camp sites or yurts, except for small propane camp stoves and propane range, stoves or grills that are licensed to be attached to camper, trailer or motor home, or licensed for inside a yurt. Except for communal cooking station, none of these cooking facilities will be provided by the campground owner. The Hearings Officer finds this criterion may be met with conditions of approval. (8) Screens. All openings, except doors with self -closing devices, into the outer air of permanent kitchens, dining rooms, toilets and shower facilities must be effectively screened. Screens may not be less than sixteen mesh per inch, and all screen doors must be equipped with a self -closing device. FINDING: The applicant states that it is not proposing any of these permanent facilities requiring screen doors or windows. The Hearings Officer finds that because the applicant has not proposed a required shower facility, I cannot determine whether such a facility will include an opening that must be screened under this criterion. Any approval of the applications on appeal should include a condition of approval ensuring compliance with this criterion. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 84 000583-MA (9) Solid Waste Containers. Solid waste containers must be in place at the time of final inspection. Solid waste containers or bins must. (a) Have tight -fitting lids, covers or closable tops; and (b) Be durable, rust -resistant, water tight, rodent -proof and washable; (c)(A) Containers in recreational vehicle parks must be provided at a rate of one 30-gallon container for each four recreational vehicle parking spaces and be located within 300 feet of each recreational vehicle parking space. Containers may be grouped; (B) Containers in picnic parks, campgrounds and organizational camps must be provided at a rate of one 30-gallon container for each 20 occupants or fraction thereof that the camp or park is designed to accommodate. Containers may be grouped. EXCEPTION: The requirement for solid waste containers in picnic parks, campgrounds and organizational camps may be waived by the regulating authority for areas not accessible by road. FINDING: A trash receiving area for solid waste is proposed as part of the campground and will include a 3-yard dumpster. A container for recycling will also be provided. The Hearings Officer finds this criterion may be met with a condition of approval to ensure compliance. (10) Water Systems in Flood Zones. Potable water systems located in, or partially in flood zones, must be provided with valves to isolate that portion of the system in the flood zone from the rest of the system, and fittings must be installed to permit flushing and treatment of the flood zone portion of the water system. FINDING: The subject property is not within a flood zone. The Hearings Officer finds this criterion does not apply. OAR 918-650-0050. Toilets. (1) Toilet facilities must be provided in every recreation park or organizational camp. They must be convenient and accessible and must be located within 500 feet of any recreational vehicle space or camping site not provided with an individual toilet facility or sewer connection. EXCEPTION: The requirement for toilets in picnic parks, campgrounds and organizational camps may be waived by the regulating authority for areas not accessible by road. (2)(a) Sanitary facilities must be as required in Table 3-RV; (b) Toilet Bowls. Toilet bowls for public use must be elongated bowls with open -front seats. Any room with flush toilets must be provided with a floor drain as required in the Oregon Plumbing Specialty Code; (c) Signs. Toilets must either be marked for the designated sex or be provided with a privacy lock. If not apparent, the location of toilets must be indicated by appropriate direction signs; (d) Flush Toilets and Showers. Flush toilets and showers and the buildings containing them must be constructed in accordance with the State Building Code; Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 85 000583-MA (e) Unisex Toilets. Toilet facilities designed to serve an occupant load of 15 persons or less may serve both sexes. Such toilet facilities must be equipped with a urinal. FINDING: The Hearings Officer notes that the applicant has not proposed a shower facility as required by DCC 18.128.320(D)(3) because it interprets OAR 918-650- 0050 as not requiring showers. As set forth above, the Hearings Officer finds that the County Code requires a shower facility. The applicant is proposing a toilet (2- seater) on a septic system, consistent with Table 3-RV. The rooms will be marked for the designated sex and provided with a privacy lock. The applicant has not specified whether the toilet facility will include a floor drain as required in the Oregon Plumbing Specialty Code, or whether the location of toilets will be indicated by appropriate direction signs. Flush toilets and showers and the buildings containing them must be constructed in accordance with the State Building Code. Cramer Farms argues that the proposed design of the toilet facility fails to comply with ADA accessibility requirements and does not provide room for sinks (lavatories). The Hearings Officer finds that, absent additional information and analysis from the applicant, I cannot find these criteria may be met with a condition of approval requiring the applicant to secure all necessary permits from the Building Official OAR 918-650-0070. Alternate Materials and Interpretations; Appeals. (1) These rules are not intended to prevent the use of any alternate material, design, or method of construction for recreation parks or organizational camps which the rules do not specifically prescribe, provided that the building official has approved such alternate. (2) Modifications. Wherever there are practical difficulties involved in carrying out the provisions of these rules, the building official may grant modifications for individual cases, provided the building official: (a) Determines that a special individual reason makes the strict compliance with the letter of OAR 918, division 650 impractical; (b) Ensures that the modification does not lessen any fire protection requirements or any degree of structural integrity or create any health or safety hazards; and (c) Maintains the details of any such action granting modifications in the files of the municipality. FINDING: The applicant states it will work with the local building officials if the use of any alternate material, design or method of construction for the proposed use is considered that the rules do not specifically prescribe and will seek building official approval of such alternative(s). The Hearings Officer finds this criterion may be met with a condition of approval. IV. DECISION: Based on the application materials submitted by the applicant and the above analysis, the Hearings Officer concludes the applications for a conditional use permit and site plan Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 86 000583-MA approval in the MUA-10 Zone and LM overlay zone do not conform to the standards for approval and DENIES the applications. In the event this Final Decision is appealed and the reviewing body determines the applications meet all standards of approval, the following conditions of approval are recommended: A. This approval is based upon the application, site plan, specifications, and supporting documentation submitted by the applicant. Any substantial change in this approved use will require review through a new land use application. B. The property owner shall obtain all necessary approvals and/or permits for the campground from the Deschutes County Building Safety Division, Deschutes County Environmental Soils Division, Oregon Health Authority, State Department of Health, Oregon Department of Environmental Quality, Oregon Department of Consumer and Business Services, Oregon Department of Transportation and the Deschutes County Road Department. C. Prior to initiating the campground use, the property owner shall submit to CDD a letter from the Bend Fire and Rescue stating that all required fire protection regulations have been met. D. No building or structure shall be erected or enlarged to exceed 30 feet in height, per DCC 18.32.040(D). E. Use of approved campground sites is limited to the following: 4 h+ + �r . a o+'o onrl recre tion purposes, not to . Overnight, iig� temporal y' use fo vacati c., v a exceed 30 days in any 60-day period by any campground site user 2. Campfires and barbeque pits/stands are prohibited at each campground site 3. Propane ranges, stoves or grills that are licensed to be attached to a camper, trailer or motor home or licensed for use inside a yurt are allowed 4. Individual campground sites shall not include utility hook-ups, water or sewer 5. Parking for each individual campground site shall be limited to one vehicle or one vehicle and trailer. F. No large group campouts are permitted, and all planned or unplanned events for those not on the guest register are prohibited. G. Parking off of the access road is prohibited. H. The communal gathering area shall include a fireplace and a portable outdoor cooking station made of cleanable construction and designed to permit easy removal of ash and wood waste. I. Solid waste containers or bins shall be required to have the following: 1. Tight -fitting lids, covers or closable tops 2. Be durable, rust -resistant, water tight, rodent -proof and washable Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 87 000583-MA J. The access point to the campground shall be designated as right -in, right -out only. K. The campground access road shall have a posted and enforced speed limit of 5 miles per hour. The access road and parking areas shall be improved with clean 3%" minus gravel for minimum nine -ton gross load, and shall be maintained at all times in a manner that will not result in nuisance dust conditions on neighboring properties. L. The campground shall require quiet hours for all patrons between the hours of 10:00 p.m. and 7:00 a.m., 7 days a week, 365 days a year. M. Commercial and/or industrial vehicles are not permitted to enter the campground, except for authorized maintenance and/or repair work on site. N. The campground buildings and all essential or accessory components shall observe the following approximate setbacks: 1. 100 feet from the north property boundary 2. 100 feet from the south property boundary 3. 100 feet from the west rear property boundary 4. 100 feet from Highway 97 (arterial right of way) along the subject property's eastern boundary O. Existing tree and shrub cover on the subject property shall be retained and continuously maintained in a healthy, attractive condition, except to the extent removal is required for any building footprint, provided that dead, diseased or hazardous vegetation may be removed at any time. Retention of existing vegetation between and around all required parking spaces shall be required to a width of at least 5 feet. If landscaping is introduced on the property, native vegetation species shall be used. P. No less than sixty-five percent (65%) of the subject property shall be retained as open space. Walkways, roadways, parking spaces, structures, service areas and campsites shall not be considered open space. Q. The space provided for each campsite shall not be less than 1600 square feet exclusive of any space used for common areas such as roadways, general use structures, walkways, landscaped areas and parking spaces other than those assigned to particular campsites. Campsites shall include a minimum of 10 feet separate distance between sites. R. Water and electric lines to serve the subject property, if any, shall be placed underground. S. The campground shall provide potable water, toilet and shower facilities, lighting, picnic tables and garbage collection sites. The toilet facility shall include lavatories and a floor drain as required in the Oregon Plumbing Specialty Code. The location of toilets shall be indicated by appropriate direction signs. T. Flush toilets and showers and the buildings containing them shall be constructed in accordance with the State Building Code. Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 88 000583-MA U. All openings, except doors with self -closing devices, into the outer air of toilets and shower facilities shall be effectively screened. Screens shall not be less than sixteen mesh per inch, and all screen doors must be equipped with a self - closing device. V. Campground parking spaces shall not be used for the storage of vehicles or materials or for the parking of trucks or any other vehicle used in conducting campground business. W. The proposed development and parking area must meet any applicable provisions of the Americans with Disabilities Act (ADA). X. All roofing of buildings or structures shall not be finished in white, bright or reflective materials. All buildings or structures shall be sided, finished or painted in muted earth tone colors that blend with and contrast with the surrounding vegetation and landscape. Y. Any installed exterior lighting, including exterior lighting shall be sited and shielded so that is directed downward and is not directly visible from Highway 97 or neighboring properties. Z. Any campground sign installed on the subject property shall comply with all highway and travelers' regulations for signage, as confirmed by Oregon Department of Transportation and Oregon Consumer and Business Services. No sign shall be erected, structurally altered or relocated until a sign permit has been issued by Deschutes County pursuant to DCC 10 UU8.070. AA. Prior to use or occupancy, the campground shall obtain a certificate of sanitation as required by the Oregon Department of Environmental Quality, shall provide convenient and accessible toilet facilities (one for men and one for women), lavatories and shower facilities. BB. Prior to use or occupancy, the water supply serving the proposed campground from the existing well shall be constructed and licensed with the Oregon Health Authority in accordance with the rules for Public Drinking Water Systems under OAR 335, Division 031-0004. Quarterly sampling as defined by rule shall be taken for year-round facility in accordance with OAR 333-031-0004(3)(a)-(f). CC. Maximum occupancy of each campsite and yurt site is limited to four (4) persons. The maximum occupancy of the campground is sixty (60) persons. DD. The campground shall post signs and enforce restrictions to prohibit vehicles and pedestrians from accessing neighboring private properties to the north, west and south of the subject property. EE. Existing fencing on the southern boundary of the subject property shall be maintained in its current location. Sections of solid fencing, constructed of natural materials, shall be installed to cover any gaps in the existing fencing on the subject property and to block views of the parking areas to surrounding properties. All existing fencing on the subject property shall be repaired and Final Decision File No. 247-19-000879-MA,-000361-CU,-000362-SP,-000363-LM and - 89 000583-MA maintained to prevent trespass to property not under the control of the campground owner. FF. All landscaping shall be continuously maintained and kept alive and attractive. GG. Striping shall be added and maintained on the campground access road to indicate the location of pedestrian crossings. HH. The property owner shall obtain building official approval prior to the use of any alternate material, design, or method of construction for recreation parks or organizational camps, which the rules in OAR 918-650 do not specifically prescribe. III. The applicant shall apply for building permit(s) or initiate the use within two (2) years from the date this decision becomes final, or an extension of time pursuant to Section 22.36.010 of the County Code obtained, or this approval shall be void. Other permits may be required. The applicant is responsible for obtaining any necessary permits and meeting the requirements of the Deschutes County Building Safety Division, the Deschutes County Environmental Soils Division, and the Deschutes County Road Department, as well as obtaining any required state and federal permits. This decision becomes final twelve (12) days after the date of mailing, unless appealed by a party of interest. 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L 0 °J Y f0 L M C u@i !4 3 = X rCL li E _N vL 0S N V N le 1 a>i v v 0 o o J Y 3 5 K m U m o y a m T o m m p p LL s x 2 J d 0 3 Y o 7 -, u ,�° v n s u E S C�G 2 o Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners BOCC Wednesday Meeting of April 28, 2021 DATE: April 22, 2021 FROM: Tarik Rawlings, Community Development, 541-317-3148 TITLE OF AGENDA ITEM: Review and Consideration of Document No. 2021-223, Written Decision Overturning a Hearing's Officer Denial on a Three Sisters Irrigation District Conditional Use and Site Plan Request MEMORANDUM TO: Board of County Commissioners FROM: Tarik Rawlings, Associate Planner DATE: April 22, 2021 RE: Review of Written Decision Overturning a Hearings Officer Decision on a Three Sisters Irrigation District (TSID) Hydroelectric Facility Proposal (files 247-20-000187-LR, 191- CU, 192-CU, 193-SP, 461-MA) The Board of County Commissioners (Board) will review a written decision on April 28, 2021 for an appeal of a Hearings Officer decision (files 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA) denying a proposal for a Hydroelectric Facility owned and operated by the Three Sisters Irrigation District (TSID). 1. BACKGROUND The property subject to this application is located approximately 5.1 miles northeast of the City of Sisters. The specific location is noted in the following table: Map Number & Tax Lot Address 14-11-33, 500 18150 Simmons Road, Sisters, OR 97759 The Applicant, TSID, has requested conditional use and site plan approval to establish a hydroelectric facility in conjunction with the existing irrigation system owned and operated by TSID. The Applicant also requested a lot of record verification for the subject property. Lastly, the request includes a Modification of Application to add review of underground utility lines partially located within mapped floodplain areas on the subject property. The Board unanimously voted (Commissioners DeBone and Chang in favor, with Commissioner Adair recusing herself) to overturn the Hearings Officer's Decision of denial for the subject site plan and conditional use permits for the hydroelectric facility. The Board broadly concurred with the Hearings Officer's decision and approved the application, overturning the Hearings Officer's findings of denial related to county criteria outlined in sections DCC 18.16.030(K), 18.32.040(A), and 18.124.060(I). Specifically, the Board found: 117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005 (541) 388-6575 @ cdd@deschutes .org @ www.deschutes.org/cd • The materials and information in record are sufficient to address DCC 18.16.030(K); • The exceptions provision under DCC 18.120.020(C) results in the proposal's compliance with DCC 18.32.040(A); and • DCC 18.124.060(I) is met because all other applicable provisions were found to be met by the Board. Staff seeks clarification from the Board on drafted findings related to the applicability of DCC 18.128.260(B)(3-5), as described in Section II, Issue Areas, below. II. ISSUE AREA(S) DCC 18.128.260(B)(3-5) A number of approval criteria under DCC 18.128.260 (Hydroelectric Facilities) require a facility to "maintain or enhance" various environmental and natural features. As noted in the draft decision, the Board agrees with the Hearings Officer that the Applicant has the option to maintain or enhance. In the case of the subject application, the Applicant has chosen to maintain these features. Due to the fact that the criteria described in subsections B(3-4) relate solely to enhancement measures, the Board finds these criteria do not apply to the subject application. Subsection B(5) is slightly nuanced as it applies to plans for a water conservation and stream enhancement program. Under this criterion, the program includes additional requirements to enure the correct and effective implementation of any propnced enhanrements. Staff understands that, because the Applicant does not propose enhancement measures, the Board finds subsection B(5) is also inapplicable to the subject application. Staff asks the Board for confirmation of the inapplicability of subsection B(5) and further clarification, if necessary, to ensure the draft decision accurately reflects the Board's deliberation on these issue areas. III. REQUIRED ACTIONS With a verbal decision affirmed on March 3, 2021, the Board can now review the written decision for any subsequent edits and formal approval. IV. 150-DAY LAND USE CLOCK The 150-day period for issuance of a final local decision is currently May 5, 2021. Attachments: Document Item No. 2021-4-22 - BOCC Findings and Decision Doc No 2021-223 1 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA, 635-A, 637-A Page 2 of 2 REVIEWED LEGAL COUNSEL DECISION OF THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS FILE NUMBER: File No. 247-20-000635-A, 637-A, (Appeals of 191-CU, 192-CU, 193-SP; 461-MA) APPLICANT/OWNER: Marc Thalacker, Three Sisters Irrigation District APPLICANT'S ATTORNEY: Keenan Ordon-Bakalian, Jordan Ramis PC APPELLANT: Marc Thalacker, Three Sisters Irrigation District Central Oregon LanclWatch (COLW) APPELLANT'S ATTORNEY: Keenan Ordon-Bakalian, Jordan Ramis PC Rory Isbell, COLW STAFF REVIEWER: Tarik Rawlings, Associate Planner LOCATION: Mailing Name: THREE SISTERS IRRIGATION DISTRICT Map and Tax Lot: 1411330000500 Account: 150319 Situs Address: 18150 SIMMONS RD, SISTERS, OR 97759 HEARINGS OFFICER DETERMINATION ISSUED: APPEALS FILED: HEARING DATE: RECORD CLOSED: September 4, 2020 September 16, 2020 January 20, 2021 February 10, 2021 Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 1 of 24 49077-78512 4842-6967-3956.7 I. SUMMARY OF DECISION: In this decision, the Board of County Commissioners ("Board") considered the Appellants' appeals of the September4, 2020 findings and decision (file nos. 247-20-000191-CU, 192-CU, 193-SP, 461-MA; "Hearings Officer's Decision"). The Board exercised its discretion to hear the appeal de novo. The record, in its entirety, was presented to the Board on October 26, 2020. BACKGROUND: The property subject to this application is located approximately 5.1 miles northeast of the City of Sisters. The specific location is noted in the following table: Map Number & Tax Lot Address 14-11-33, 500 118150 Simmons Road, Sisters, OR 97759 The Applicant, Three Sisters Irrigation District ('TSID"), requested conditional use and site plan approval to establish a hydroelectric facility in conjunction with the existing irrigation system owned and operated by TSID. The Applicant also requested a lot of record verification for the Subject Property. Lastly, the request includes a Modification of Application to add review of underground utility lines partially located within mapped floodplain areas on the Subject Property. The subject 97.60-acre property is developed with two (2) high -density polyethylene (HDPE) irrigation pipelines, 42" and 18" in respective diameters, which serve approximately 2,000 irrigated acres of farmland within the boundaries of TSID. The property contains dirt and gravel driveways, and parking areas associated with access to the site and maintenance of the Subject Property. The property contains an approximately 12-acre manmade water body referred to as the McKenzie Regulating Reservoir (McKenzie Reservoir). The McKenzie Reservoir is mapped as wetlands and Special Floodplain Hazard Area ("SFHA"). The proposed hydroelectric facility is a single 300 kW turbine, approximately 140 square -feet in size to be located within a hydroelectric station building approximately 1,170 square feet in size. The proposed hydroelectric facility will receive existing pressurized piped irrigation water through the southern end of the facility, and release the water back to the McKenzie Regulating Reservoir through a tailrace structure to the north of the proposed hydroelectric station building. Initial public hearings before a Hearings Officer took place on June 2, 2020 and July 14, 2020. On July 7, 2020, the Applicant submitted a Modification of Application to include review of underground electrical distribution lines associated with the proposed hydroelectric facility. The Hearings Officer, Gregory Frank, issued his decision on September 4, 2020, denying the Applicant's request for site plan and conditional use approval, but approving the request for Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 2 of 24 49077-78512 4842-6967-3956.7 lot of record verification. On September 16, 2020, both Central Oregon LanclWatch ("COLW") and TSID filed timely appeals. The Board considered whether to hear the appeals of the Hearings Officer's Decision on November 9, 2020. The Board decided the appeals shall be heard de novo. A work session in preparation for a public hearing was held on January 13, 2021. The public hearing itself was held on January 20, 2021 and the Applicant agreed to a 21-day open record period, which concluded on February 10, 2021. The Board subsequently conducted deliberations on March 3, 2021. During the deliberations, the Board agreed (Commissioners DeBone and Chang in favor, with Commissioner Adair recusing herself) to overturn the Hearings Officer's Decision of denial for the subject site plan and conditional use permits for the hydroelectric facility. The Board directed staff to prepare a decision consistent with the deliberations, and formally voted to approve the project after reviewing the written decision. As detailed below, the Board determines that the Applicant proved, by substantial evidence in the record, that all applicable approval standards are met. The weight, credibility, and probative value of the evidence offered by the Applicant in writing and by oral testimony is sufficient to meet the Applicant's burden to so prove. The evidence offered by the Applicant is evidence on which a reasonable person would rely on in reaching a decision. The Board also makes findings lg5 on provisions of the Deschutes County CVde (!D Ir. C'') put Ut issue by COLW, an interested party that appealed the Hearings Officer's Decision on September 16, 2020. As will be addressed below, the Board finds many of the code provisions put at issue by COLW inapplicable to the subject application. Regarding the code provisions put at issue by COLW, the Board incorporates the Hearings Officer's findings in part, and adopts additional findings, as detailed below. The Board reverses the Hearings Officer's finding that the Applicant failed to address, with adequate specificity and clarity, the requirements of OAR 660-033-0130 as required by DCC 18.16.030(K). The Board also reverses the Hearings Officer's finding that the Applicant did not adequately address the requirements of DCC 18.32.040(A) and DCC 18.124.060(I). Upon appeal, the Board finds that the Applicant addressed the requirements of OAR 660- 033-0130 as required by DCC 18.16.030(K) through written and oral testimony, and reference to substantial evidence in the record. The Board also finds that the Applicant addressed the requirements of DCC 18.32.040(A). II. APPLICABLE STANDARDS AND CRITERIA: Title 18 of DCC, the County Zoning Ordinance: Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 3 of 24 49077-78512 4842-6967-3956.7 Chapter 18.16. Exclusive Farm Use Zones (EFU) Chapter 18.32. Multiple Use Agricultural Zone (MUA10) Chapter 18.96. Flood Plain Zone (FP) Chapter 18.116. Supplementary Provisions Chapter 18.124. Site Plan Review Chapter 18.128. Conditional Use Title 22, Deschutes County Development Procedures Ordinance 111111. BASIC FINDINGS: The Board adopts and incorporates by reference the code interpretations, findings of fact, and conclusions of law set forth in the September 4, 2020 Hearings Officer's Decision in Section II (Basic Findings), including the subsections titled Lot of Record, Site Description, Proposal, Land Use History, Surrounding Land Uses, Public Agency Comments, and Public Comments with the addition of the following findings included in section IV, below. On October 21, 2020, the Board considered hearing an appeal of a Hearings Officer's decision for the subject application(s). During this meeting, Chair Adair recused herself from the proceedings, and Commissioner Henderson was not present to vote on the consideration. As a result, the consideration was rescheduled to October 26, 2020. On October 26, 2020, the Board voted to hear the subject appeals. The Board conducted a public fearing of � January 20, 2021.1 A 21-day Open � Record Period followed the pubiic hearing, the first 7 days of which were for new written material, the following 7 days for rebuttal of the new written materials, and the final 7 days for the Applicant's final legal argument. Deliberations occurred at their regular business meeting on March 3, 2021. After deliberations, the Board agreed to overturn the Hearings Officer's decision and to approve the application. The Board directed staff to prepare a decision consistent with the deliberations. On April 28, 2021, the Board reviewed the draft decision and formally voted to approve the project. REVIEW PERIOD: The subject application(s) were submitted on March 3, 2020 and deemed incomplete by the Planning Division on March 26, 2020. The Applicant requested to withdraw its Temporary Use Permit application 247-20-000194-TU on March 19, 2020 and the County processed this withdrawal on March 23, 2020. Upon submission and review of additional materials, the Planning Division deemed this application complete on May 1, 2020. Due to several tolling requests submitted by the Applicant, the 150th day on which the County must take final action on this application is May 5, 2021. 1 Commissioner Henderson's term ended on December 31, 2020. Commissioner Chang's term started on January 4, 2021. Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 4 of 24 49077-78512 4842-6967-3956.7 IV. FINDINGS AND CONCLUSIONS: Title 18 - County Zoning The Board adopts and incorporates by reference the code interpretations, findings of fact, and conclusions of law set forth in the September 4, 2020 Hearings Officer's Decision in Section III (Findings & Conclusions), except for the findings relating to DCC Sections identified below. To the extent there are conflicts between any of the findings identified above and the findings below, the findings and conclusions below shall control. CHAPTER 18.16. EXCLUSIVE FARM USE ZONES Section 18 16 030 Conditional Uses Permitted - High Value and Non -High Value Farmland. The following uses may be allowed in the Exclusive Farm Use zones on either high value farmland or non -high value farmland subject to applicable provisions of the Comprehensive Plan, DCC 18.16.040 and 18.16.050, and other applicable sections of DCC Title 1& K. Commercial utility facility, including a hydroelectric facility (in accordance with DCC 18.116.130 and 1&128.260, and OAR 660-033=0130), for the purpose of generating power for public use by sale, not including wind power generation facilities. DISCUSSION: The Hearing Officer's decision found that the subject applications satisfied DCC 18.116.130 and DCC 18.128.260. The Board agrees with and incorporates those findings. However, the Hearings Officer also found that although the Applicant may have provided evidence into the record of this case that satisfies many, if not all, of the OAR 660- 033-0130 requirements applicable to this project, the Applicant failed to specifically and clearly address those requirements. The Hearings Officer subsequently denied the application in part due to this approval criterion not being met. The Applicant appealed the Hearings Officer's finding on this approval criterion and supplemented the record with written testimony and evidence that the Applicant argued demonstrate compliance with the specific requirements of OAR 660-033-0130. However, there is some debate between the parties as to which requirements set forth in the subsections within OAR 660-033-0130 are applicable to the subject application. The Board addresses that threshold question first in the following finding. FINDING: At the outset, it must be noted that most of the subsections within OAR 660- 033-0130 clearly do not apply to the subject application. By its own terms, OAR 660-033- Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 5 of 24 49077-78512 4842-6967-3956.7 0130 sets forth differing "minimum standards" applicable to different types of uses allowed on agricultural land. For example, OAR 660-033-0130 allows dwellings customarily provided in conjunction with a farm use, but only if an application satisfies additional requirements that are set forth in subsection (1). As the subject application does not propose a dwelling, then OAR 660-033-0130(1) clearly does not apply. For similar reasons, and because to the Board's knowledge no party has argued otherwise, the Board finds that subsections (1) through (4), (6) through (15), (18) through (21), and (23) through (41) functionally do not apply to the subject application. The remaining subsections require further inquiry. The requirements in OAR 660-033-0130(5) and (22) clearly apply to the subject application. The introductory provision of OAR 660-033-0130 clarifies that the applicability of each enumerated subsection is determined by referencing a table adopted as part of the proceeding rule, OAR 660-033-0120. As such, the Board first turns to that OAR 660-033- 0120 table to determine which requirements as set forth in OAR 660-033-0130's separate subsections apply to the subject application. Although that table does not include a use category for "hydroelectric facilities" as proposed by the subject application, the Board notes that DCC 18.16.030(K), as quoted above, conditionally allows "hydroelectric facilities" in the County's EFU zones as a subset of the broader "commercial utility facilities" use category. The OAR 660-033-0120 table, in turn, specifies which OAR 660-033-130 subsections apply to "Commercial Utility facilities for the purposes of generating power for public use by sale..." Because the proposed conduit hydroelectric facility is a subset of a commercial iitiiitji f aciiitji U1 ider DCC 18. i 6^v.�3.�i(K), ai �d because the pr.^,pWs fa��' 'Y Pflll generate power for public use by sale, the Board finds that those OAR 660-033-0130 subsections set forth in the OAR 660-033-0120 table corresponding to the aforementioned "commercial utility facility" use category apply to the subject application. As only a portion of the subject, split -zoned property is on non -high value farmland with no evidence in the record suggesting that any portion of the property is high value farmland, those applicable OAR 660-033-0130 subsections are (5) and (22). Substantive findings addressing those two subsections are included below. The Board further notes that the Hearings Officer's Decisions also cites, without much discussion, subsections (16) and (17) implying that those subsections may apply to the subject application. Before the Board, County staff also questioned the applicability of subsection (32). As such, specific findings addressing subsections (5), (16), (17), (22), and (32) are included below. For the sake of clarity, the Board addresses those subsections that clearly apply first (i.e. subsections (5) and (22)) before addressing the remaining subsections. OAR 660-033-0130 Minimum Standards Applicable to the Schedule of Permitted and Conditional Uses Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 6 of 24 49077-78512 4842-6967-3956.7 The following requirements apply to uses specified, and as listed in the table adopted by OAR 660-033-0120. For each section of this rule, the corresponding section number is shown in the table. Where no numerical reference is indicated on the table, this rule does not specify any minimum review or approval criteria. Counties may include procedures and conditions in addition to those listed in the table, as authorized by law. (5) Approval requires review by the governing body or its designate under ORS 215.296. Uses may be approved only where such uses: (a) Will not force a significant change in accepted farm or forest practices on surrounding lands devoted to farm or forest use; and (b) Will not significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use. FINDING: The only component of the subject proposal to be located on the EFU-Zoned portion of the Subject Property is an underground utility trench. The proposed utility trench use in conjunction with the overall hydroelectric facility proposal is subject to the above provisions. Due to the minimal area of disturbance associated with the proposed utility trench, and the fact that the proposal is an overall supportive use to surrounding farmpractices as an a agricultural irrigation system i � improvement, the Board fi ids i �o gy foreseeable way that the subject proposal will force a significant change in accepted farm or forest practices or significantly increase the cost of accepted farm or forest practices on surrounding farm and forest lands. (22) Permanent features of a power generation facility shall not use, occupy or cover more than 20 acres unless an exception is taken pursuant to ORS 197.732 and OAR chapter 660, division 4. A power generation facility may include on -site and off -site facilities for temporary workforce housing for workers constructing a power generation facility. Such facilities must be removed or converted to an allowed use under OAR 660-033-0130(19) or other statute or rule when project construction is complete. Temporary workforce housing facilities not included in the initial approval may be considered through a minor amendment request. A minor amendment request shall be subject to OAR 660-033-0130(5) and shall have no effect on the original approval. FINDING: The proposed utility trench to be located on the EFU-Zoned portion of the Subject Property will not occupy or cover more than 20 acres, and no temporary workforce housing is proposed. Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637.-A Page 7 of 24 49077-78512 4842-6967-3956.7 (16)(a) A utility facility established under ORS 215.213(1)(c) or 215.283(1)(c) is necessary for public service if the facility must be sited in an exclusive farm use zone in order to provide the service.... FINDING: As discussed in an earlier finding, the table included in OAR 660-033-0120 dictates which subsection of OAR 660-033-0130 apply to specific use categories. The Board thereafter determined that the subject application is a "commercial utility facility for the purpose of generating power for public use by sale," and that OAR 660-033-0130 subsections (5) and (22) apply to the application because a portion of the Subject Property is non -high value farmland. Pursuant to that finding, subsection (16) cannot be applied to the subject application because the OAR 660-033-0120 table reserves that subsection for a different, mutually exclusive, use category. Specifically, subsection (16) only applies to "utility facilities necessary for public service ... but not including commercial facilities for the purpose of generating electrical power for public use by sale..." Additionally, the proposed hydroelectric facility is not being "established under ORS 215.213(1)(c) or 215.283(1)(c)." Both ORS 215.213(1)(c) and 215.283(1)(c) address utility facilities allowed "as of right" in EFU zones. See, e.g., Brentmar v. Jackson County, 321 Or 481, 900 P2d, 1030 (1995); Lane County v. Land Conservation & Dev. Comm'n, 325 Or 569, 942 P2d 278 (1997). Such outright permitted uses are correspondingly addressed in Deschutes County by DCC 18.16.020. Instead, the subject hydroelectric facility is being proposed pursuant to DCC 18.16.030(K) (and ORS 215.283(2)(g)) addressing "conditional uses" allowed in the Countys EFU zones. For the foregoing reasons, the Board finds that OAR 660-033-0130 (16) does not apply to the subject application. (17) Permanent features of a power generation facility shall not use, occupy, or cover more than 12 acres unless an exception is taken pursuant to ORS 197.732 and OAR chapter 660, division 4. A power generation facility may include on -site and off -site facilities for temporary workforce housing for workers constructing a power generation facility. Such facilities must be removed or converted to an allowed use under OAR 660-033-0130(19) or other statute or rule when project construction is complete. Temporary workforce housing facilities not included in the initial approval may be considered through a minor amendment request. A minor amendment request shall be subject to OAR 660-033-0130(5) and shall have no effect on the original approval. FINDING: As discussed in an earlier finding, the table included in OAR 660-033-0120 dictates which subsection of OAR 660-033-0130 apply to specific use categories. That table enumerates that subsection (17) only applies to high -value farmland. No portion of the split -zone Subject Property has been shown to be high -value farmland. As such, the Board finds that subsection (17) does not apply to the subject application. If a subsequent review Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 8 of 24 49077-78512 4842-6967-3956.7 body finds the Board's aforementioned finding to be in error, the Board alternatively finds that the subject application satisfy subsection (17). The Subject Property is split -zoned, with the northern portion located within the EFU Zone. The only aspect of the proposed hydroelectric facility to be sited on the EFU portion of the property is an underground utility trench. The proposed utility trench to be located on the EFU-Zoned portion of the Subject Property will not occupy or cover more than 12 acres, and no temporary workforce housing is proposed. (32) 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: (a) A public right of way, (b) Land immediately adjacent to a public right of way, provided the written consent of all adjacent property owners has been obtained, or (c) The property to be served by the utility. FINDING: As discussed in an earlier finding, the table included in OAR 660-033-0120 dictates which subsection of OAR 660-033-0130 apply to specific use categories. That table enumerates that subsection (32) applies to "utility facility service lines" on both high -value and non -high value farm land. Based on the above -quoted description of "utility facility service lines" provided by OAR 660-033-0 1 30, the Board f it Inds the subsection (342) does not apply to the subject application. Specifically, the proposed utility trench does not end at the point where the utility service is received by the customer, but rather terminates at an area of existing Central Electric Cooperative, Inc. ("CEC") infrastructure in the western portion of the Subject Property near the intersection of Simmons Road and Holmes Road, and thereby the proposed utility trench is not considered a "utility facility service line" which must meet the requirements set forth by OAR 660-033-0130(32). FINDING: As a result of the above analysis, the Board finds the Applicant's testimony and evidence have addressed the requirements of OAR 660-033-0130 as required by DCC 18.16.030(K), and therefore reverses the Hearings Officer's finding of noncompliance with the aforementioned provision. CHAPTER 18.32. MULTIPLE USE AGRICULTURAL ZONE - MUA Section 18.32.040. Dimensional Standards. In an MUA Zone, the following dimensional standards shall apply. A. The minimum lot size shall be 90 acres... Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 9 of 24 49077-78512 4842-6967-3956.7 FINDING: The subject, 97.6-acre property is split zoned with approximately 9.55 acres zoned MUM 0, 71.8 acres zoned EFU, and 16.25 acres zoned Flood Plain ("FP"). Within the Hearings Officer's Decision (page 14), the Hearings Officer found the DCC 18.32.040(A) dimensional standards constitute approval criteria and were not addressed by the Applicant. As understood by the Board, COLW agreed with the Hearings Officer's finding and argued that the aforementioned 10 acre minimum lot size requirement was not met because the portion of the 97.6 acre property zoned MUM 0 is smaller than 10 acres. COLW's argument appears to be based on COLW's proffered interpretation of another Deschutes County Code provision, DCC 18.12.040(C): "C. If a zone boundary as shown on the zoning map divides a lot or parcel between two zones, the entire lot or parcel shall be deemed to be in the zone in which the greater area of the lot or parcel lies, provided that this adjustment involves a distance not exceeding 100 free from the mapped zone boundary. DCC 18.12.040 does not apply to areas zoned floodplain." COLW further argued that because the aforementioned provision does not apply to the subject application, the Applicant should not be allowed to 'borrow' acreage from another area of the split -zoned property to ensure the MUA portion of the property meets the 10- acre minimum. Stated simply, COLW's argument suggests that unless DCC 18.12.040(C) applies, a split -zone property must meet the aggregate of all applicable minimum iot Size requirements. The Board agrees that DCC 18.12.040(C) does not apply to the subject application because a portion of the property is zoned Floodplain. However, the Board is skeptical of the remainder of the above argument presented by COLW. The inapplicability of DCC 18.12.040(C) does not necessarily imply that the subject split -zoned property must meet the aggregate of all minimum lot size requirements imposed by different DCC chapters governing different County zones. One obvious alternative resolution would be to interpret the various DCC provisions so that only the strictest minimum lot size requirement applied to the subject split -zoned property. That option receives support from such provisions as DCC 18.144.010 dictating that "[w]here the conditions imposed by a provision of DCC Title 18 are less restrictive than comparable conditions imposed by any other provision which are more restrictive, the more restrictive shall govern." However, the subject application does not compel the resolution of COLW's proffered interpretive argument, and the Board thereby declines to do so. Even if the subject split - zone property does not meet DCC 18.32.040(A), the proposed development may proceed according to DCC 18.120.020(C) governing "nonconforming lot sizes." The language of DCC 18.120.020(C) is provided below: Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 10 of 24 49077-78512 4842-6967-3956.7 "(C) Any lot or parcel that is smaller than the minimum area required in any zone may be occupied by an allowed use in that zone provided that: 1. The lot or parcel is a lot of record, as defined in DCC 18.04.030, Lot of record. 2. The use conforms to all other requirements of that zone. 3. If there is an area deficiency, residential use shall be limited to a single dwelling unit. 4. All necessary permits are obtained." The Applicant appealed the Hearings Officer's finding on this approval criterion and has since supplemented the record with written testimony and evidence demonstrating compliance with the DCC 18.120.020(C). Based on that testimony and evidence, the Board finds that even if the Subject Property is nonconforming because the MUA10 portion is less than 10 acres in size, Deschutes County provides an allowance for the development of substandard lots within the exceptions chapter of DCC 18.120.020. The Board therefore finds that the Hearings Officer erred in finding the Applicant did not meet the dimensional standards of the MUA10 zone because the Hearings Officer failed to apply the exceptions' provision of DCC 18.120.020(C) to the subject application. The Board finds the Subject Property is developable under DCC 18.120.020(C) and thereby reverses the Hearings Officer's findings for DCC 18.32.040(A). CHAPTER 18.96. FLOOD PLAIN ZONE_ FP Section 18.96.110. Dimensional Standards. In an FP Zone, the following dimensional standards shall apply. C. Minimum lot size shall be 10 acres for all areas that have received an exception to the Statewide Planning Goals for resource uses. Areas which have not received an exception to the Statewide Planning Goals shall have a minimum lot size of 80 acres. FINDING: The Hearings Officer did not address this criterion within the Hearings Officer's Decision. Before the Board, however, COLW put this criterion at issue. At the outset, the Board notes that this issue is topically similar to the preceding finding regarding DCC 18.32.040(A), and the Board thereby references and incorporates that finding herein. As understood by the Board, the Applicant posited that the Hearings Officer did not address the dimensional standards of DCC 18.96.110 because it is not applicable to the subject application as it does not propose a land division. The Applicant argued that the plain language of DCC 18.96.110(C) requires a newly -formed lot to be a minimum of 80 acres, but does not require existing lots in the FP zoning district to be 80 acres. Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 11 of 24 49077-78512 4842-6967-3956.7 Alternatively, COLW argued that because the Subject Property has not received an exception to the Statewide Planning Goals, the FP portion of that split -zoned property must have at least 80 acres for the subject application to be approved. COLW further argued that the County's Goal 5 program for wetlands precludes any development on even a split - zoned property if the FP portion is less than 80 acres. Again, the Board is skeptical of COLW's argument and tends to agree with the Applicant that the FP -zoned portion of the Subject Property does not need to contain 80-acres of FP - zoned land to be developable. The Board plain language of DCC 18.96.110(C) referencing a "minimum lot size" lends itself to an interpretation that the actual lot size in total must be at least 80 acres, not a portion of the lot zoned FP in the case of split -zoned property. Under that interpretation, the 97.60-acre Subject Property far exceeds the 80-acre minimum lot size for FP -zoned property. But, similar to the finding for DCC 18.32.040(A) above, the subject application does not compel the Board to resolve the aforementioned interpretative issue because the Board previously found that DCC 18.120.020(C) clearly applies to the Subject Property. To reiterate, the Board finds that even if the Subject Property is nonconforming because the FP portion is less than 80 acres in size, the Subject Property qualifies for an exception under DCC 18.120.020(C) based on the testimony and evidence described above. CHAPTER 18.128. CONDITIONAL USE Section 18 128.260. Hydroelectric Facilities. A. The criteria set forth below shall apply to any construction or expansion of, or other modification to, hydroelectric facilities in zones where such facilities are permitted as a conditional use. A conditional use permit may be granted for the construction or expansion of, or other modification to, a hydroelectric facility only upon findings by the Planning Director or Hearings Body that the proposal meets each of the following criteria, where applicable: 2. The facility will not increase the maximum surface area or capacity of the impoundment created by the existing dam or diversion to which the facility will be connected. FINDING: The Hearings Officer found DCC 18.128.260(A)(2) not applicable to the subject application because the Applicant's proposal will not increase the maximum surface area or capacity of any impoundment created by an existing dam or diversion which the Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 12 of 24 49077-78512 4842-6967-3956.7 proposed facility will be connected. The Board concurs with the Hearings Officer's finding that this criterion is not applicable to the subject application. The Board finds that DCC 18.128.260(A)(2) is not applicable to the subject application because there is no impoundment for the purposes of this project. The review standard of DCC 18.128.260(A)(2) is only applicable in the case where there is a potential for a prospective project to increase the maximum surface area or capacity of an impoundment created by an existing dam or diversion to which the proposed hydroelectric facility will be connected. An impoundment implicates an impact on the natural flow of the river system and attendant affects, which is not present in this application. The Board finds that in this case, the absence of an impoundment renders this criterion inapplicable to the subject application. 3. The facility will maintain or enhance to the greatest extent possible the existing scenic, visual, environmental and aesthetic qualities of the affected stretch of river. FINDING: As noted by the Hearings Officer, this approval criterion includes the qualifying language "affected stretch of the river." The Board also adopts the Hearings Officer's interpretation of "affected," which means in this context that the proposal for a hydroelectric facility "produces an effect upon" a river. The Board finds that creeks are included within the DCC 18.128.260 definition of "river." The substantial evidence in the record establishes that this case relates solely to activities occurring on the Subject Property. Further, the record suggests that the Applicant's proposal will not result in increased diversions of water from Whychus Creek, or other development within the creek or its riparian area. COLW argued otherwise, but did not provide sufficient evidence to successfully challenge the evidence offered by the Applicant. Specifically, the Board finds persuasive that the Subject Property is located approximately 10 miles from TSID's point of diversion and 2.4 miles, as the crow flies, from Whychus Creek. Further, the record —including the Applicant submittals and detailed public comments —establish that as a conduit hydroelectric project, the proposed facility will merely make secondary use of whatever amount of water TSID diverts for irrigation purposes and for other pre-existing and fully permitted hydroelectric projects. TSID possesses senior water rights on Whychus Creek for irrigation and storage purposes and these rights are subject to Oregon law requiring that water be used beneficially without waste. TSID also holds secondary hydroelectric water rights that are strictly limited to the use of water already diverted through TSID's pipeline for irrigation purposes. Based on the evidence submitted into the record, the Board finds that total volume, flow rate, and diversion of water will remain the same, regardless of whether this project is approved. As such, the Board finds that this application will not produce any impacts upon the scenic, visual, environmental, or aesthetic qualities of Whychus Creek. The Board finds, for the purposes of this approval criterion, that there is no "affected stretch of the river" related to Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 13 of 24 49077-78512 4842-6967-3956.7 the Applicant's proposal. The Board therefore concludes this approval criterion is not applicable to the Applicant's proposal. If it is later determined by a review body that the Board's interpretation of "affected stretch of river" is not correct, then the Board finds in the alternative that the Applicant's proposed facility will maintain, to the greatest extent possible, the existing scenic, visual, environmental, and aesthetic qualities of Whychus Creek. The Board makes this alternative finding based upon evidence in the record that the Applicant's proposed hydroelectric facility will not be visible (related to scenic, visual and aesthetic evaluation factors) from Whychus Creek, evidence that the Applicant's hydroelectric water right prohibits the diversion of additional water for hydroelectric purposes, and evidence that no development will occur in or near Whychus Creek. The Board finds that the amount of water flowing in Whychus Creek will not be impacted by approval of the Applicant's proposed hydroelectric facility, and that this criterion is met if found to be applicable. 4. The facility will maintain or enhance the existing recreational opportunities on or adjacent to the affected stretch of river. FINDING: This approval criterion also includes the qualifying language "affected stretch of the river." As such, the Board incorporates the above findings regarding DCC 18.128.260(A)(2)-(3) as additional findings for this criterion. TL_ n__..J F.., L....- M Ffl�i.- I 'fr.r'.�r. fh�f f r� ic- r, 11,ff-efori I lie Board finds, for the purposes ofthis is approval criterion, f, that then c is no aiicc�cu stretch of river" related to the Applicant's proposal, and thereby this approval criterion is not applicable to the Applicant's proposal. If it is later determined by a review body that the Board's interpretation of "affected stretch of the river" is not correct, then the Board finds in the alternative that the Applicant's proposed facility will maintain the existing recreational opportunities on or adjacent to Whychus Creek. The Board finds that the Applicant's proposal will have no impact to existing recreational opportunities on or adjacent to Whychus Creek because this application relates solely to activities occurring on the Subject Property. The substantial evidence in the record establishes that Whychus Creek will not be impacted by approval of the Applicant's proposed hydroelectric facility because the facility will make secondary use of water diverted for irrigation purposes, and because no development is proposed that will be visible to, or interfere with, recreation on the river. The Board finds in the alternative that the Applicant will maintain the existing recreational opportunities on or adjacent to Whychus Creek, as this application will not impact Whychus Creek. 5. The facility will maintain or enhance existing fish and wildlife habitat and will have no adverse impact upon any threatened or endangered fish, wildlife or plant species or their habitat. Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 14 of 24 49077-78512 4842-6967-3956.7 FINDING: The Board incorporates the findings for DCC 18.128.260(A)(2)-(4) as additional findings for this criterion. This criterion requires the Applicant's proposed facility to "maintain" or "enhance" existing fish and wildlife habitat. In addition, the Applicant must demonstrate that the proposed facility will have no adverse impact upon any threatened or endangered fish, wildlife, or plant species or their habitat. As understood by the Board, the parties disagree on the meaning of the "maintain or enhance" language, thereby requiring the Board to appropriately interpret that language in the context of this provision. As such, the Board interprets the "maintain or enhance" language to in essence give the Applicant a choice to demonstrate that the specific factor or element is either "maintained" or "enhanced." Presumably, if an Applicant cannot demonstrate that the specific factor is "maintained," that the Applicant will then be required to "enhance" that factor. In this case, the Applicant successfully demonstrates that it will "maintain" existing fish and wildlife habitat. Thereby, the Board rejects COLW's alternative interpretation suggesting that the Applicant must demonstrate that the subject application includes specific and additional "enhancements." COLW's proffered interpretation would perhaps be appropriate if the term at issue was instead "maintain and enhance," as opposed to the codified "maintain or enhance" language. As previously discussed, the Board finds that based on the substantial evidence in the record, no increase in water diversion is expected, nor any development proposed at the point of diversion. The Board therefore concludes the Applicant has established that ,t \v.-ill "maintain" existing fish and wildlife habitat as required by this DCC 18.128.260(A)(5). The Board further finds that the subject application will have no adverse impact upon any threatened or endangered fish, wildlife, or plant species or their habitat for the following reasons: 1. The proposed conduit hydroelectric facility will not be diverting water from Whychus Creek. The Applicant submitted evidence demonstrating that the facility will make use of water that is already diverted through the District's pipeline and stored in an upstream reservoir for irrigation purposes. As shown by the evidence in the record, TSID's limitation to the use of irrigation water to generate hydroelectric power is also part of the findings by Oregon Water Resources Department ("OWRD"), in consultation with the Oregon Department of Fish and Wildlife ("ODFW"), that the use of water for this project will not impair or be detrimental to the public interest. The Board finds that TSID's diversions under its primary irrigation water right are independent of the subject application and that there is no substantial evidence in the record to support COLW's claim that this application will result in increased water diversions from Whychus Creek, which would result in lower water flows. The Board finds that the proposed conduit hydroelectric facility will use water already appropriated for irrigation use to operate the Applicant's proposed conduit hydroelectric facility. Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 15 of 24 49077-78512 4842-6967-3956.7 2. The Board notes the detailed engineering and site plans submitted by the Applicant establishing that the subject application will maintain existing fish and wildlife habitat at the Subject Property. In particular, the Applicant has modified the design of its distribution lines to eliminate overhead wires. The Applicant now proposes to underground its distribution lines, which will eliminate avian hazards and limit any impact to the natural and physical features of the Subject Property, including natural resource values. The Board finds that burying distribution lines will eliminate any impact on avian and other wildlife habitat. 3. Based on evidence in record, the Board finds the proposed conduit hydroelectric facility will utilize irrigation water already -diverted from TSID's point of diversion ("POD") on Whychus Creek located approximately 10 pipeline miles away. Evidence in the record indicates the water diversion point already includes a fish screen that prevents fish from entering the POD or the pipeline that delivers water to the Subject Property and the proposed facility. 4. Based on record materials and the Applicant's submitted site plan, the Board finds the Subject Property was previously disturbed and the proposed development will impact less than an acre of the 97.60-acre parcel. The Board additionally finds the Applicant is required by DCC 18.124.070(B) to landscape 75 square -feet of the Subject Property as a result of the parking area proposed on the submitted site plan. T his additional landscaping,d p f existing combined bineu with the preservation va'tiCi i vi cni��ii � vegetation, will offset any loss of vegetation in the build area of the powerhouse and will likely add to the preservation of existing wildlife habitat within the Subject Property. The Board includes a Condition of Approval that requires the Applicant, prior to the issuance of building permits, to submit a landscaping plan demonstrating the site's compliance with the landscaping requirements of DCC 18.124.070(B). The Board finds that the substantial evidence in the record does not support COLW's claim that the Applicant will divert more water from Whychus Creek, which would result in lower streamflow, impacting fish and wildlife. Based on the record provided by the parties, the Board finds that the Applicant's proposed conduit hydroelectric facility will be limited to the use of water that is already diverted through the pipeline for irrigation purposes and for other previously -permitted hydroelectric facilities and that no additional water shall be diverted for this hydroelectric facility. 6. The facility and its operation will maintain or enhance existing water quality in the affected stretch of river except during construction of the facility when adverse impacts on water quality will be minimized. Specifically, the facility and its operation will not. Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 16 of 24 49077-78512 4842-6967-3956.7 a. Deposit or create a zone for the deposit of sediments in the river at or adjacent to the site, b. Increase the temperature of the river in the affected stretch by any means, including but not limited to removal of vegetation or reduction in streamf/ow, or C. Create the potential for or result in spillage, leakage or discharge of oil, waste products, chemicals or other substances which could reach the river. FINDING: The Board incorporates the findings for DCC 18.128.260(A)(2-5) as additional findings for this criterion. The Board sees no reason to distinguish between the various "affected stretch of river" criteria within DCC 18.128.260(A). As the Board previously found that there is no "affected stretch of river" related to this application because the substantial evidence in the record suggests that there will be no increased diversions associated with this application, the Board thereby finds that this approval criterion is not applicable to the Applicant's proposal. If it is later determined by a review body that the Board's interpretation of "affected stretch of the river" is not correct, then the Board finds in the alternative that this application will maintain or enhance existing water quality in Whychus Creek. The construction of the proposed conduit hydroelectric facility will be limited to the Subiect Property; located 2.4 miles from the nearest point on Whychus Creek and 10 miles from TSID's POD. There will be no construction or disturbance in or nearby Whychus Creek as a result of construction of the proposed facility. Therefore, the Board finds that there will be no deposit of sediments, increase of the temperature by removal of vegetation or other means, or spillage of any substance into Whychus Creek as a result of the Applicant's construction of the facility. To the extent it is applicable, the Board finds that this criterion is met. 8. The facility and its operation will maintain existing public access to the affected stretch of the river. FINDING: The Board incorporates the findings for DCC 18.128.260(A)(2-6) as additional findings for this criterion. As stated previously, the Board sees no reason to distinguish between the various "affected stretch of river" criteria within DCC 18.128.260(A). As there is no "affected stretch of river" associated with this application, the Board finds that this approval criterion is not applicable to the Applicant's proposal. Alternatively, the Board finds that because the Applicant's proposed hydroelectric facility does not include any construction near a public access to Whychus Creek, the facility will maintain existing public access to Whychus Creek. Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 17 of 24 49077-78512 4842-6967-3956.7 To the extent it is applicable, the Board finds that this criterion is met. B. The Applicant for a conditional use permit for a hydroelectric facility, in addition to all other requirements, shall submit the following for approval. 3. Detailed plans for river enhancement documenting both on -site and off -site enhancement plans consistent with adopted river -related goals and policies, such as plans and methods for conserving water and enhancing stream flows. The plan shall identify costs, time schedules and coordination activities with affected persons and agencies for such enhancement plans. FINDING: The Board incorporates the findings for DCC 18.128.260(A)(2)-(6), (8) as additional findings for this criterion. The Board, as previously stated, interprets the submittal requirements of DCC 18.128.260(B) pertaining to enhancement plans and water conservation to mean they are only applicable when an Applicant has chosen to "enhance" a specific factor within DCC 18.128.260(A). In this case, the Applicant has elected to "maintain" all applicable factors within DCC 18.128.260(A) and does not propose to undertake further enhancement activities. Therefore, the Board finds that the Applicant is not required to provide an "enhancement plan." The Board finds this approval criterion is not applicable to the Applica� it's proposed hydroelectric facility. 4. A cash deposit, performance bond or other security acceptable to Deschutes County in an amount equal to 100 percent of the estimated cost of river enhancement. FINDING: The Board agrees with the Hearings Officer's findings related to the above criterion and incorporates the findings for DCC 18.128.260(A)(2)-(6), (8) and DCC 18.128.260(B)(3) as additional findings for this criterion. The Board finds, as supported by sufficient evidence in record, that the Applicant has demonstrated the riverine characteristics potentially associated with the subject proposal will be maintained. Due to the Board's finding that the subject proposal does not include enhancement measures, the required cash deposit referenced above would effectively be zero. As a result, the above provision is functionally inapplicable to the proposal as 100% of the estimated costs (zero) would still equal zero dollars. The Board takes note that the subject application is a component of TSID's comprehensive system -wide modernization and conservation effort being undertaken by the District, which will provide real benefits to Whychus Creek. The Board finds that for the purposes of the subject application, this criterion is not applicable because the Applicant is not required to incorporate "enhancement" as part of the project. The Board finds that based upon its interpretation of Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 18 of 24 49077-78512 4842-6967-3956.7 the text of DCC 18.128.260(B) and the facts of this case, the Applicant is not required to provide an "enhancement plan" or conduct river enhancement activities. Therefore, the Board concludes that this criterion is not applicable. S. Detailed plans for a water conservation and stream enhancement program to be funded by a portion of revenues generated by the operation of the proposed facility. The program plans shall contain the following: a. A program timetable; b. Projected gross revenues from the proposed facility; C. Projected program expenditures and the percentage of gross revenues they represent; d. Projected water savings and the percentage of known current water losses they represent; e. A declaration by the applicant that at least 50 percent of the conserved water will remain undiverted by the applicant; f. A declaration by the Applicant that water diversion for power generation will not cause water flow in the affected stretch of river (from the diversion to the tailrace exit) to fall below the minimum streamf/ow for that stretch as recommended by the Oregon Department of Fish and Wildlife; and g. A declaration that the Applicant will enter into an agreement with the a.ounty to fulp.11 all of the requirements in DCC 18.128.260(8)(1) through (5) before beginning construction. FINDING: The Board incorporates the findings for DCC 18.128.260(A)(2)-(6), (8) and DCC 18.128.260(B)(3-4) as additional findings for this criterion. The Board's findings herein differ from the Hearings Officer's findings related to the above criterion. The criteria outlined in this subsection B(5) relate directly to a "program" for water conservation and stream enhancement. As detailed in previous findings, the Board's interpretation of the phrase "maintain or enhance" presents the Applicant with a choice of whether to maintain or enhance the riverine factors potentially impacted by the proposal. Based on the context and language of this subsection B(5) and similar to subsections B(3) and B(4) discussed above, the Board interprets this provision as only applying when an Applicant cannot demonstrate that the "maintenance" standard is met, thereby requiring certain "enhancements." As interpreted by the Board, this provision then includes additional requirements to ensure that such "enhancements" are immediately implemented and effective long-term. Based on that interpretation, the Board finds that for the purposes of the subject application, the criteria included in DCC 18.128.260(B)(5) are not applicable because the Applicant is not required or proposing to incorporate "enhancement" as part of the project. Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 19 of 24 49077-78512 4842-6967-3956.7 The Board further finds that based upon its interpretation of the text of DCC 18.128.260(B) and the facts of this case, the Applicant is not required to provide an "enhancement plan" or program or conduct river enhancement activities. Therefore, the Board concludes that the criteria outlined in DCC 18.128.260(B)(5)(a-g) are not applicable to the subject application. RELEVANCE OF DCC 18.128.260 LEGISLATIVE HISTORY FINDING: Both the Applicant and COLW have introduced legislative history into the record relevant to a Deschutes County text amendment allowing hydroelectric facilities as a conditional use. That code provision, DCC 18.128.260, has remained relatively unchanged since it was first adopted on June 30, 1986. The Parties have differing views on the probative value of the legislative history within the record. County Ordinance No. 86-018 was submitted into the record and includes meeting minutes from a joint Deschutes BOCC and Bend City Commission work session, dated June 11, 1986 under document 86-15201. The definitions adopted by Ordinance No. 86-018 include: Conduit: Any tunnel, canal, pipeline, aqueduct, flume, ditch or similar man-made structure which is or may be used to convey water. Hydroelectric Facility: All aspects of any project or development necessary for or related to the generation of hydroelectric energy, including, but not limited to, conduits, dams, diversions, fish ladders and screens, generators, impound„ len�-, penstocks, t'u'r bincri, transmission facilities, and related buildings, structures, storage areas, access roads, parking areas and surrounding and adjacent lands which are necessary for or related to the facility. The Applicant, in its Closing Argument argues that County Ordinance No. 86-018 and document 86-15201 are of limited probative value. The Applicant submits that document 86-15201 is simply meeting minutes outlining a second-hand account by County Legal Counsel of a prior Planning Commission meeting and are not a relevant account of the Board's or Planning Commission's discussion of the legislative intent of Ordinance No. 86- 018. The Applicant argues that Ordinance No. 86-018 and document 86-15201 support the Applicant's argument that the types of hydroelectric projects Deschutes County was trying to regulate in 1986 are very different from today's conduit hydroelectric projects, including the subject application. Specifically, the Applicant believes Ordinance 86-018 and document 86-15201 offer insight into the distinction between "conduit" and "riverine" hydroelectric facilities, and that Deschutes County was not considering conduit hydroelectric projects when first adopting DCC 18.128.260. As understood by the Board, COLW's proposition is that the aforementioned legislative history demonstrates an intent for all hydroelectric facilities to comply with all provisions of DCC 18.128.260, including the submission of plans and information in connection to all Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 20 of 24 49077-78512 4842-6967-3956.7 provisions within DCC 18.128.260(A)-(B) as discussed above. COLW further argued that the Hearings Officer's findings that certain approval criteria within DCC 18.128.260(A)-(B) are not applicable to the subject application was thereby in error. And, presumably, COLW for the same reasons may disagree with the Board's findings discussed earlier in this decision. The Board considered both the Applicant and COLW's arguments on this issue. As pointed out by the Applicant, the Board notes that the legislative history provided by the parties is incomplete and thereby inconclusive. More importantly, however, the Board finds that first the Hearings Officer and now the Board clearly have the requisite discretion to interpret and apply the applicable approval criteria to the subject application. The Board finds that ORS 215.416(9) requires that County decisions on permit applications explain, intra alia, "the criteria and standards considered relevant to the decision." In considering the subject application, the Board has the latitude to identify which standards and criteria in its comprehensive plan and land use regulations are applicable. Buel-McIntire v. City of Vachats, 63 LUBA 452, 465 (2011). The Board disagrees with COLW's argument to the extent that it implies that the aforementioned and incomplete legislative history somehow stripped this Board of the necessary discretion to interpret the codified standards previously listed in this decision to discern which and how those standards apply to the subject application. Similar to the Hearings Officer and as discussed at length above, this Board finds that not all criteria within DCC 18.128.260 facially apply to the subject application. As such, the Board only applied those approval criteria that the Board interpreted to be relevant and germane to the proposed conduit hydroelectric facility. CHAPTER 18.124. SITE PLAN REVIEW. Section 18.124.060. Approval Criteria. L Specific criteria are outlined for each zone and shall be a required part of the site plan (e.g. lot setbacks, etc.). The Board finds that the Subject Property is within the MUA10 Zone, EFU Zone, and FP Zone. The Board incorporates the findings of DCC 18.16.030(K), 18.32.040(A), 18.96.110(C), 18.128.260(A)(2-6)(8), and 18.128.260(B)(3-5) within this Decision as additional findings for this criterion. The Board finds that relevant criteria relating to DCC 18.16, DCC 18.32, and 18.96 are met. The Board finds that this criterion is therefore met. V. CONCLUSIONS: The proposed conduit hydroelectric facility can meet all applicable criteria if all conditions of approval are met. Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 21 of 24 49077-78512 4842-6967-3956.7 VI. DECISION: Based on the findings of fact and conclusions of law set out above, the Board votes unanimously to overturn the Hearings Officer's Decision and APPROVE the land use permit applications to establish a conduit hydroelectric facility on the Subject Property, subject to the following conditions: A. Approval is based upon the application, site plan, specifications, and supporting documentation (including the Applicant's "Access Plan" attached to its Supplemental Burden of Proof) submitted by the Applicant. Any substantial change in this approved use will require review through a new land use application. B. The Applicant shall obtain any necessary permits from the Deschutes County Building Division and Environmental Soils Division. C. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed by DCC 18.120.040 D. Structural setbacks from any north lot line shall meet the solar setback requirements in DCC 18.116.180. E. All necessary and required federal, state and local government agency permits shall I_ Vim_' _I for the F '1' 1 rl -�n nr�.e r ue obtained 1 VI 11 e proposed facility, parking areas, service dr ive, a1 i p0,we, distribution lines. F. The Applicant is hereby notified that flood insurance premiums for flood -proofed non-residential buildings will be based on rates that are one foot below the flood - proofed level (e.g. a building constructed to the flood level will be rated as one foot below that level). G. Elevation of all new construction, including replacement and substantial improvements, relative to mean sea level of the lowest floor shall be documented before the framing inspection with a survey certified by a State of Oregon registered professional engineer or land surveyor. H. All exterior lighting shall be shielded so that direct light does not project off -site. Additionally, any lighting used to illuminate off-street parking areas shall be so arranged that it will not project light rays directly upon any adjoining property in a residential zone. The Applicant shall follow Best Management Practices in suppressing dust on the service drive or other gravel areas on the Subject Property. Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 22 of 24 49077-78512 4842-6967-3956.7 �. Prior to the issuance of building permits, the Applicant shall provide certification by a licensed professional engineer that drainage facilities have been designed and constructed in accordance with the current Central Oregon Stormwater Manual to receive and/or transport at least the design storm (as defined in the current Central Oregon Stormwater Manual) for all surface drainage water, including stormwater coming to and/or passing through the development. K. Prior to the issuance of building permits, the Applicant shall submit a certification by a licensed professional engineer that the proposed building entrance will have a maximum slope of five percent. L. The facility and its operation shall comply with all applicable state and local fill -and - removal statutes and regulations. M. Prior to the issuance of building permits, the Applicant shall submit a landscaping plan demonstrating the site's compliance with the landscaping requirements of DCC 18.124.070(B)(2) - specifically, the three (3) proposed parking spaces require a total of 75 square -feet of landscaping (3 spaces x 25 square -feet). Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 23 of 24 49077-78512 4842-6967-3956.7 Dated this _ day of April, 2021. BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES COUNTY Anthony DeBone, Chair Phil Chang, Vice -Chair Patti Adair, Commissioner THIS DECISION BECOMES FINAL WHEN MAILED. PARTIES MAY APPEAL THIS DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS DECISION IS FINAL. Board of County Commissioners Decision, Document No. 2021-223 File No. 247-20-000635-A, 637-A Page 24 of 24 49077-78512 4842-6967-3956.7 HEARINGS OFFICER DECISION FILE NUMBERS: 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 247-20-000461-MA SUBJECT PROPERTY/ OWNER: Mailing Name: THREE SISTERS IRRIGATION DISTRICT Map and Tax Lot: 1411330000500 Account: 150319 Situs Address: 18150 SIMMONS RD, SISTERS, OR 97759 APPLICANT: Marc Thalacker, Manager ATTORNEY: Keenan Ordon-Bakalian, Jordan Ramis PC PROPOSAL: The Applicant requests conditional use and site plan reviews to construct a new hydroelectric facility in conjunction with the irrigation system owned and operated bythe Three Sisters Irrigation District. The Applicant is also requesting a Lot of Record verification for the subject property. HEARING DATE: June 2nd, 2020 - 6:00pm STAFF CONTACT: Tarik Rawlings, Associate Planner Phone: 541-317-3148 Email: Tarik.Rawlings@deschutes.org I. APPLICABLE CRITERIA Title 18 of the Deschutes County Code, the County Zoning Ordinance: Chapter 18.16. Exclusive Farm Use Zones (EFU) Chapter 18.32. Multiple Use Agricultural Zone (MUA10) Chapter 18.96. Flood Plain Zone (FP) Chapter 18.116. Supplementary Provisions Chapter 18.124. Site Plan Review Chapter 18.128. Conditional Use Title 22, Deschutes County Development Procedures Ordinance 1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005 Q� (541) 388-6575 @ cdd9deschutes.org @ www.deschutes.org/cd II. BASIC FINDINGS LOT OF RECORD: The Hearings Officer finds the Subject Property meets the lot of record requirements as that phrase is defined in DCC 18.04.030. The Hearings Officer incorporates the finds for Section III (A), as additional findings for this paragraph. SITE DESCRIPTION: The subject 97.60-acre property is developed with two (2) high density polyethylene ("HDPE") irrigation pipelines, 42" and 18" in respective diameters, which serve approximately 2,000 irrigated acres of farmland within the boundaries of Three Sisters Irrigation District. The interior of the property contains dirt and gravel driveways, and parking areas associated with the Three Sisters Irrigation District. The property currently supports an approximately 12-acre man-made water body referred to as the McKenzie Regulating Reservoir ("McKenzie Reservoir"). The location of the McKenzie Reservoir corresponds to the location of state - mapped wetland areas and areas of mapped Special Floodplain Hazard Area ("SFHA") on the subject property. The property has a vegetative cover of mature juniper trees, sagebrush, native groundcover, and other vegetation. The property is irregular in shape and fronts on both Simmons Road and Holmes Road. The grade of the property is slightly lower in elevation in the eastern portion of the subject property near the location of the McKenzie Reservoir, and slightly raised in the northwestern portion of the subject property north of Holmes Road. PROPOSAL: The applicant requests site plan review to construct a new hydroelectric facility in conjunction with the irrigation system owned and operated by the Three Sisters Irrigation District. The tail race (defined as a "water channel below a dam or water mill'') portion of the facility will be located at least partially Within a mapped floodnlain area: The proposed development includes the addition of overhead distribution power lines associated with the facility. The application materials indicate that the proposed facility will contain a generator that will be operational 24 hours/day, 7 days/week, between March and November of each year. The applicant is also requesting a Lot of Record verification for the Subject Property. LAND USE HISTORY: • 247-20-000183-PS: State of Oregon Water Resources Department Permit Sign -Off approval (marked by Planning Staff as "Land Use Approval Being Pursued") for a new hydroelectric facility, which is the subject of files 247-20-000187-LR, 191-CU, 192-CU, 193-SP. • 247-16-000218-PS: State of Oregon Water Resources Department Permit Sign -Off approval for Direct Main Canal Piping associated with Phase 8 of the Three Sisters Irrigation District Main Canal Piping Program. This project replaced approximately 4,400 feet of open ditch on the Main Canal with a combination of dual 42", 36", and/or 32" buried HDPE pipelines for the purpose of water conservation. SURROUNDING LAND USES: To the west is tax lot 3700, which contains 8.42 acres of unirrigated lands owned byJohn and julene Bruguier. To the southwest are tax lot 3600 and tax lot 3500. Tax lot 3600 contains 10.75 acres, most of which are irrigated with water delivered by Three Sisters ' Oxford Dictionary via Lexico -April 2020 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 2 of 69 Irrigation District, and is owned by Gary and Patricia Molesworth. Tax lot 3500 contains 9.24 acres, most of which are irrigated with water delivered by Three Sisters Irrigation District, and is owned by Kirk and Karlene Crenshaw. These properties (tax lots 3700, 3600, and 3500) are zoned MUA10 with the exception of the furthest southeast corner of tax lot 3600 and the southwest border of tax lot 3500, which are zoned FP. Three neighboring properties are located to the south of Simmons road (tax lots 900, 1000, and 1600). Tax lots 900 and 1000 are zoned MUA10, while tax lot 1600 is zoned EFUSC. These properties are developed with residential dwellings and hobby farms, except for tax lot 900, which is currently undeveloped. To the northwest are tax lots 102, 100, and 400. Tax lot 102 contains 9.98 acres of unirrigated lands owned by Robert and Patti Adair. Tax lot 100 contains 117.41 acres, most of which are irrigated with water delivered by Three Sisters Irrigation District, and is owned by the Richard Gillespie Living Trust. Tax lot 400 contains 40.16 acres, most of which are irrigated with water delivered by Three Sisters Irrigation District, is also owned bythe Richard Gillespie Living Trust. These properties (Tax lots 102, 100, and 400) are zoned EFUSC. These properties are developed with residential dwellings (tax lots 100 and 102), and commercial and hobby farm uses (tax lots 100 and 400). To the north is tax lot 300, which contains 40.0 acres of unirrigated land, owned by the Bureau of Land Management ("BLM"). This tax lot is zoned EFUSC and is undeveloped. To the east is tax lot 100 which contains 160.00 acres of unirrigated land, owned by the Bureau of Land Management. This tax lot is zoned EFU. Three Sisters Irrigation District has a right-of-way within this tax lot for construction and usage of McKenzie Reservoir (BLM Oregon 05589) that was granted in May 1958. Tax lot 702 lies to the northeast of the subject property, containing 13.66 acres, and zoned EFU. Tax lot 202 is developed with a residential dwelling and accessory structures. To the southeast is tax lot 3200, which contains 5.73 acres of unirrigated lands, owned by Dustin and Roberta Grosz. This tax lot is zoned MUA10 and is developed with residential structures. To the south are tax lots 3300 and 3400. Tax lot 3300 contains 5.43 acres of unirrigated lands owned by Michael and Therese Mattijetz. Tax lot 3400 contains 6.75 acres, most of which are irrigated with water delivered by Three Sisters Irrigation District, owned by Helen Crawford. These properties are zoned MUA10 with the exception of the furthest western edge of tax lot 3400, which is zoned FP. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice on March 11, 2020, to several public agencies. Staff, in the Staff Report, summarized many of the public agency comments. PUBLIC COMMENTS: The Planning Division mailed notice of the conditional use application to all property owners within 750 feet of the subject property on March 11, 2020. The applicant also complied with the posted notice requirements of Section 22.23.030(B) of Title 22. The applicant submitted a Land Use Action Sign Affidavit indicating the applicant posted notice of the land use action on March 12, 2020. Public comments were received from three neighboring property owners and one from Central Oregon Land Watch. A public hearing was held on June 2, 2020 at which time the Applicant requested the hearing be continued; the request was granted by the Hearings Officer. Numerous individuals submitted evidence into the public record and/or testified at the July 14, 2020 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 3 of 69 continued hearing ("Hearing"). The Staff Report for this case was prepared prior to the June 2, 2020 hearing. The Staff Report referenced written comments received by Staff prior to the Hearing. The Hearings Officer does not repeat Staffs summary of comments received prior to the Hearing. Issues raised by case participants that are relevant to approval criteria are addressed in the findings below. REVIEW PERIOD: The subject application(s) were submitted on March 3, 2020 and deemed incomplete by the Planning Division on March 26, 2020. The applicant requested to withdraw Temporary Use Permit application 247-19-000194-TU on March 19, 2020 and the County processed this withdrawal on March 23, 2020. Upon submission and review of additional materials, the Planning Division deemed this application complete on May 1, 2020. The 150th day, as of the date of the Staff Report, on which the County must take final action on this application was September 28, 2020. Applicant's attorney, on June 12, 2020 submitted an open -record letter stating, in part, the following: "On June 2, Deschutes County held a public hearing on the above -captioned application. At this hearing, the applicant requested and was granted a continuance of proceedings to July 14, 2020. This continuance is necessaryfor the applicant to supplement the record and submit an amended Burden of Proof. ORS 215.427(1) requires Deschutes County to take final action on the above -captioned application within 150 days after the application is deemed complete. The applicant formally requests that staff toll the 150-day review clock for the 42-day period between the original June 2 hearing and the continued hearing, scheduledfror July 14," The Hearings Officer finds that the filing of the Modification of Application (247-20-000461-MA), submitted on July 7, 2020, restarted the 150-day clock. Therefore, the Hearings Officer finds that the 150th day, on which the County must take final action on these applications, is December 4, 2020. 111. FINDINGS & CONCLUSIONS Title 22 Deschutes County Development Procedures Ordinance Chapter 22.20. Review Of Land Use Action Applications Section 22.20.015 Code Enforcement and Land Use A. Except as described in (D) below, if any property is in violation of applicable land use regulations, and/or the conditions of approval of any previous land use decisions or building permits previously issued by the County, the County shall not: 1. Approve any application for land use development, 2. Make any other land use decision, including land divisions and/or property line adjustments, 3. Issue a building permit. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 4 of 69 C. A violation means the property has been determined to not be in compliance either through a prior decision by the County or other tribunal, or through the review process of the current application, or through an acknowledgement by the alleged violator in a signed voluntary compliance agreement (" VCA"). D. A permit or other approval, including building permit applications, may be authorized if. 1. It results in the property coming into full compliance with all applicable provisions of the federal, state, or local laws, and Deschutes County Code, including sequencing of permits or other approvals as part of a voluntary compliance agreement, Z It is necessary to protect the public health or safety, 3. It is for work related to and within a valid easement over, on, or under the affected property, or 4. It is for emergency repairs to make a structure habitable or a road or bridge to bear traffic. FINDING: The record in this case contains public comments submitted in response to the Applicant's hydroelectric facility proposal indicating that development work has taken place on the Subject Property without approval from the Deschutes County Community Development Department. Staff, in a July 9, 2020 Staff Memorandum ("Staff Memorandum`), provided the Hearings Officer and case participants insight into the County's history in dealing with code complaint allegations raised during a pending land use application process. Two potential code complaint violations were raised by case participants. First, it was alleged that Applicant had constructed/installed overhead electrical distribution lines. Second, it was alleged that Applicant had constructed a "tailrace" without first obtaining permits. At the Hearing Applicant represented that it had constructed/installed no electrical distribution lines. Applicant, at the Hearing, stated that any electrical distribution line work, in the vicinity of the Subject Property, was conducted by the Central Electric Cooperative ("CEC") and was not related to Applicant's proposed hydroelectric facility (See also, Applicant's July 14, 2020 Supplemental Burden of Proof (pages 3 & 4). Applicant also, in the Supplemental Burden of Proof (page 5), modified its original proposal to install overhead electrical distribution lines by burying the lines underground (Modification cfApplication form submitted to the County on July 7, 2020). The Hearings Officer finds that Applicant did not commit a code violation related to the installation of overhead electrical distribution lines. The second alleged violation involves an allegation that Applicant constructed a tailrace" on the Subject Property. Applicant, in its August 11, 2020 Closing Argument (pages 16 & 17) addressed the tailrace code violation.z Applicant, in the Closing Argument (page 16), "conceded that for the Z The Applicant, in the August 11, 20200 Closing Argument (page 16) stated that "the Applicant installed the tailrace in the FP Zone under the good faith belief that the tailrace was permitted outright as an improvement to TSID's existing irrigation system." Applicant, in its March, 2020 Burden of Proof for Site 104A stated "Applicant is seeking approval of a conditional use permit to construct a Tail Race in a Flood Plain..:' It is clear to the Hearings Officer that in March 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 5 of 69 purposes of this Application, the tailrace required land use approval in conjunction with the McKenzie Hydro facility." Applicant, in the Closing Argument, (Page 17) "voluntarily acknowledged both orally, and in writing, that the tailrace was subject to land use review and approval as construction in the FP zone." Finally, Applicant, in the Closing Argument (page 17) suggested that the tailrace violation can and should be addressed in this land use process by subjecting the entire hydroelectric facility, including the tailrace, be measured and tested against relevant land use approval criteria. COLW, in its July 28, 2020 open -record submission (pages 3 & 4) argued that Applicant's proposed hydroelectric facility be denied because of the "tailrace" code violation. The COLW argument focuses upon DCC 22.20.015 a. language that says "the County shall not approve any application for land use development ...if any property is in violation of applicable land use regulations." COLW argued that the construction of the "tailrace" prior to receipt of land use approval is a code violation and therefore the current application must be denied. Both Staff (Staff Memorandum) and Applicant (Closing Argument) addressed DCC 22.20.015, including but not limited to, prior Board of County Commission (the "Board") interpretations of DCC 22.20.015. The Hearings Officer finds the Staff Memorandum to be informative/instructive when considering the legal interpretation of DCC 22.20.015. The Hearings Officer finds Applicant's Closing Argument discussion to be persuasive. The Hearings Officer finds that DCC 22.20.015 does contain language, as quoted by COLW above, generally prohibiting the County from issuing a land use approval/permit if a code violation affects the property subject to the land use approval/permit application. However, the Hearings Officer also finds that the DCC 22.20.015 code violation prohibition on land use approvals is subject to a number of limitations and/or exceptions. DCC 22.20.015(D) states, in part, the following: 'A permit or other approval, including building permit applications, may be authorized if 1. It results in the property coming into full compliance with all applicable provisions of federal, state, or local laws, and Deschutes County Code, including sequencing of permits or other approvals as part of a voluntary compliance agreement..." The Hearings Officer agrees with Applicant that one limitation or exception to the "if there is a code violation then no land use approval is allowed" general rule is when a land use decision will have the effect of correcting the code violation. The Board, in its decision for file no. 247-17-000775-ZC, 776-PA, cautioned land use hearings officers that the "correcting the violation" exception should be used cautiously and sparingly. The Board, in its decision for file no. 247-17-000775-ZC, 776-PA, expressed that the code violation process and land use hearing process were separate and distinct and that a land use hearings officer should not generally become enmeshed in the fact finding and legal analysis involved in a code violation complaint. However, the Board, in its decision for file no. 247-17-000775-ZC, 776-PA, specifically acknowledged that there are circumstances when the land 2020 Applicant was aware that constructing the tailrace at the Subject Property required conditional use approval and that such use was not "permitted outright." 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 6 of 69 use hearing process may be the "best forum" for adjudicating a code violation issue. In this case the Hearings Officer finds that Applicant has admitted that construction of the "tailrace," prior to receipt of land use approval for its hydroelectric facility at the Subject Property, is a code violation. Therefore, in this case the Hearings Officer need not engage in any fact finding or legal analysis to determine if a code violation exists; it does because Applicant admits it does. The Hearings Officer also finds that Applicant acknowledges that approval of the construction of the "tailrace" is integral to its overall land use request. The Hearings Officer finds that Applicant, in its Supplemental Burden of Proof, has provided evidence in the record related to the "tailrace" and incorporated such evidence into its proposed findings. The Hearings Officer finds that this decision, based upon the Modification of Application and Supplemental Burden of Proof, addressed Applicant's hydroelectric facility proposal including the "tailrace" in the findings for the relevant approval criteria. The Hearings Officer finds that Applicant's admitted "tailrace" code violation does not automatically require the Hearings Officer to deny Applicant's hydroelectric facility application. The Hearings Officer finds that the land use process, in this case, is the "best forum" to consider issues related to the "tailrace" code violation. Section 22.20.055. Modification of Application. A. An applicant may modify an application at any time during the approval process up until the close of the record, subject to the provisions of DCC 22.20.052 and DCC 22.20.055. B. The Planning Director or Hearings Body shall not consider any evidence submitted by or on behalf of an applicant that would constitute modification of an application (as that term is defined in DCC 22.04) unless the applicant submits an application for a modification, pays all required modification fees and agrees in writing to restart the 150-day time clock as of the date the modification is submitted. The 150- day time clock for an application, as modified, may be restarted as many times as there are modifications. C. The Planning Director or Hearings Body may require that the application be re - noticed and additional hearings be held. D. Up until the day a hearing is opened for receipt of oral testimony, the Planning Director shall have sole authority to determine whether an applicant's submittal constitutes a modification. After such time, the Hearings Body shall make such determinations. The Planning Director or Hearings Body's determination on whether a submittal constitutes a modification shall be appealable only to LUBA and shall be appealable only after a final decision is entered by the County on an application. FINDING: The Hearings Officer, at the June 2, 2020 Hearing ("6/2/2020 Hearing") heard testimony and argument from Staff and Applicant related to Applicant's proposal to change its applications. Applicant's primary change involved eliminating its proposal to utilize overhead electric distribution lines and replace the overhead lines with underground (buried) lines. Further, the Hearings Officer 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 7 of 69 noted, at the 6/2/2020 Hearing, that Applicant's change to its proposal clearly identified the location where the electric distribution lines would be located. Finally, Applicant disclosed that a proposed tailrace had already been constructed and that the tailrace may be included in its changed applications. The Hearings Officer found, at the 6/2/2020 Hearing, that Applicant's proposed changes constituted a Modification of Application per DCC 22.20.055. Title 18 of the Deschutes County Code, County Zoning Chapter 18.04. Title, Purpose, And Definitions "Lot of Record" means: A. A lot or parcel at least 5,000 square feet in area and at least 50 feet wide, which conformed to all zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel was created, and which was created by any of the following means: 1. By partitioning land as defined in ORS 92, 2. By a subdivision plat, as defined in ORS 92, filed with the Deschutes County Surveyor and recorded with the Deschutes County Clerk, 3. By deed or contract, dated and signed by the parties to the transaction, containing a separate legal description of the lot or parcel, and recorded in Deschutes County if recording of the instrument was required on the date of the conveyance. If such instrument contains more than one legal description. only one lot of record shall be recognized unless the legal descriptions describe lots subject to a recorded subdivision or town plat, 4. By a town plat filed with the Deschutes County Clerk and recorded in the Deschutes County Record of Plats, or 5. By the subdividing or partitioning of adjacent or surrounding land, leaving a remainder lot or parcel. B. Notwithstanding subsection (A), a lot or parcel validated pursuant to ORS 92.176 shall be recognized as a lot of record. C. The following shall not be deemed to be a lot of record. 1. A lot or parcel created solely by a tax lot segregation because of an assessor's roll change or for the convenience of the assessor. 2. A lot or parcel created by an intervening section or township line or right of way. 3. A lot or parcel created by an unrecorded subdivision, unless the lot or parcel was conveyed subject to DCC 18.04.030(B). 4. A parcel created by the foreclosure of a security interest. For the purposes of DCC Title 18, "lot" or "parcel" means a lot of record as defined DCC18.04.030. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 8 of 69 FINDING: Staff included the following comments in the Staff Report: "Deschutes County adopted its first zoning ordinance (PL-5) on November 1, 1972, which described minimum lot sizes for new parcels. This zoning ordinance was replaced in 1979 with PL-15. The subdivision ordinance of 1970, PL-2, regulated subdivisions less than 10 acres in size, but did not regulate partitions. The partition ordinance (PL-7) was adopted in 1977, which described the criteria under which parcels could be partitioned (divided). The subject property, Tax Lot 500, contains 97.60 acres and is approximately 505 feet wide at the narrowest point. Tax Lot 500 was originally described in a Bargain and Sale Deed dated August 21 S, 1957, recorded in Volume 117, Page 179, Deschutes County Book of Records. The conveyance of the property conformed to all zoning requirements at this time and, for this reason, staff finds this property is a legal lot of record." Central Oregon LanclWatch ("COLW") disputed the Staff and Applicant conclusion that the Subject Property met the Lot of Record definitional requirements set forth in DCC 18.04.030. Applicant, in its August 11, 2020 open -record submission ("Closing Argument") responded to COLW's conclusion that the Subject Property did not meet Lot of Record requirements as follows (pages 13 & 14): The Subject Property is a legal lot of record. Deschutes County defines a lot of record as a "parcel at least 5,000 square feet in area and at least 50 feet wide, which conformed to all zoning and subdivision/partition requirements, in effect on the date the lot or parcel was created, and which was created by any of the following means... [b]y deed or contract, dated and signed by the parties to the transaction, containing a cenarnte legal d rrintinn of the I or narcel, and recorded in Deschutes County if recording of the instrument was required on the date of the conveyance." DCC 18.04.030(A)(3) (emphasis added). The Subject Property, Tax Lot 500, is 97.60 acres and approximately 505 feet wide at the narrowest point. Tax Lot 500 was originally described in a Bargain and Sale Deed dated August 21st, 1957, recorded in Volume 117, Page 179, Deschutes County Book of Records. The conveyance of the property conformed to all zoning requirements at the time of conveyance in 1957. See DCC 18.04.030(A)(3); see also ORS 92.017 ("[a] lot or parcel lawfully created shall remain a discrete lot or parcel, unless the lot or parcel lines are vacated or the lot or parcel is further divided, as provided by law'g. For this reason, the Subject Property is a legal lot of record, notwithstanding the latter Application of the minimum lot standards for the MUA10 and Flood Plain ("FP'q zoning districts. In addition, the Applicant adopts Deschutes County Staffs finding on this issue. Staff Report, at 12. Deschutes County Hearings Officer c%: Tarik Rawlings August 11, 2020 Page 14 49077-78512 4834- 6324-6791.1 COL invites the Hearings Officer to establish a new definition of what constitutes a legal lot of record within Deschutes County, in direct contradiction to the language of DCC 18.04.030. The key significance of designating a unit of land as a "lot of record" defined at DCC 18.04.030 is that the county will recognize a lot of record as a developable unit of land under the DCC. See Central Oregon Landwatch v. Deschutes County, 75 Or LUBA 328 (2017) (emphasis added). However, in devoting almost four pages of argument as to why the Subject Property is not a legal lot of record, 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 9 of 69 COL wholly omits any mention of DCC 18.04. Rather, COL would prefer to establish a new standard for what constitutes a legal lot of record in Deschutes County —one which is not based on the standards set forth in DCC 18.04.030. COL Winstead argues that the subsequent Application of minimum lot standards to a lawfully established parcel renders said parcel illegal and undevelopable. COL Ws argument fails to acknowledge that a parcel can still be developable as a legal lot of record, even if it is subsequently rendered substandard due to the Application of a zoning district. Such is the case here. When the Subject Property was conveyed via deed in 1957, it conformed to all zoning requirements. Subsequent to this conveyance, Deschutes County adopted its first zoning ordinance (PL-5) on November 1, 1972, which described minimum lot sizes for new parcels. This zoning ordinance was replaced in 1979 with PL-15. The subdivision ordinance of 1970, PL-2, regulated subdivisions less than 10 acres in size, but did not regulate partitions. The partition ordinance (PL-7) was adopted in 1977, which described the criteria under which parcels could be partitioned (divided). Because the Subject Property was lawfully created in 1957, prior to the County's adoption of minimum lot sizes, it is a legal lot of record. DCC 18.04.030(A)(3), ORS 92.017. COL Ws argument fails as a matter of law." The Hearings Officer concurs with the Staff and Applicant comments quoted above. The Hearings Officer adopts such comments as the Hearings Officer's findings for this criterion. The Hearings Officer finds the Subject Property is a Lot of Record as that phrase is defined in DCC 18.04.030. Chapter 1Q.16, Exclusive Fnrm I Ica 7`ones `EFUI Sarfinn 1R.16,00, ConditionaI USP_S Permitted -High Value and Non -high Value Farmland. The following uses may be allowed in the Exclusive Farm Use zones on either high value farmland or non -high value farmland subject to applicable provisions of the Comprehensive Plan, DCC 1&16.040 and 18.16.050, and other applicable sections of DCC Title 18. K. Commercial utility facility, including a hydroelectric facility (in accordance with DCC 18.116.130 and 18.128.260, and OAR 660-033-0130), for the purpose of generating power for public use by sale, not -including wind power generation facilities. FINDING: Applicant, in its Supplemental Burden of Proof (page 6) stated the following with respect to this approval criterion: 'The Applicant is proposing to establish a hydroelectric facility on property that falls partially within the EFU Zone. The specific site of the proposed hydroelectric facility is shown below in Figure 2 [shown as Figure 1 in this decision]. The proposed facility will be located in a portion of the Subject Property that is zoned MUA 10, with only a portion of the utility trench being located in the EFU-zoned portion of the Subject Property. [omitted reference to Access Plan] The siting of the utility trench in the EFU Zone is necessary to provide a connection between the facility and CEC's existing Holmes Rd. system. This connection is essential to transporting the electricity 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 10 of 69 generated at the McKenzie Hydro to BPA's Redmond Substation. As a hydroelectric facility, the McKenzie Hydro requires a connection with CEC's Distribution System to make use of the clean energygenerated on site. As an essential component of the proposed hydroelectric facility, the utility trench is an allowable use within the EFU Zone. DCC 18.16.020(K). The criteria of DCC 18.116.130 and DCC 18.128.260 are discussed in subsequent Applicant Responses." COLW, in its July 28, 2020 open -record submission (page 6), stated that: "Neither of the two Burdens of Proof nor the Supplemental Burden of Proof address the requirements of OAR 660-033-0130, which is an applicable criterion under DCC 18.16.030(K). This Oregon Administrative Rule sets minimum standards for uses on land zoned EFU. Subsection (16) of the rule applies to utility facilities and includes a long list of criteria applicable to all utility facilities on EFU land..." Applicant, in the Closing Argument (pages 15 & 16) stated: "In response to COLW's comment that the Application must address the criteria of OAR 660-033-0130 (16), the Applicant notes that the criteria of OAR 660-033-0130 have been codified in DCC 18.16.040. The Applicant has provided a comprehensive response to the criteria of DCC 1 & 16.040 on pages 7-8 of the supplemental burden of proof." The Hearings Officer reviewed the record of this case and was unable to find any additional discussion (beyond that quoted above) related to the function of OAR 660-033-0130 in the context of DCC 18.16.030(K). DCC 18.16.030 begins with the following statement: 'The following uses may be allowed in the Exclusive Farm Use zones on either high value farmland or non -high value farmland subject to applicable provisions of the Comprehensive Plan, DCC 1&16.040 and 1&16.050, and other applicable sections of DCC Title 1&" The Hearings Officer finds that the purpose of DCC 18.16.030 is to establish what uses "may be allowed" on EFU zoned land. DCC 18.16.030(K) allows commercial utility facilities to be located on EFU zone land under certain circumstances. It is those "circumstances" that become important in determining if Applicant met this approval criterion. It appears to the Hearings Officer that DCC 18.16.030(K) allows hydroelectric facilities in the EFU zone in "accordance with DCC 18.116.130, 18.128.260 and OAR 660-033-0130" [bolding/italics added by the Hearings Officer]. The use of parenthesis surrounding the reference to DCC 18.116.130, 18.128.260 and OAR 660-33-0130 creates a potential ambiguity in determining the function of DCC 18.116.130, 18.128.260 and OAR 660-33-0130 within DCC 18.16.030. DCC 18.16.030(K) does not clearly state that the satisfaction of DCC 18.116.130, 18.128.260 and OAR 660-033-0130 is a condition precedent to showing that the proposed hydroelectric facility is allowed in EFU zoned land. However, that interpretation seems to be supported by record statements by both the Applicant and COLW. Applicant, in the above -quoted comments, made sure that the Hearings Officer understood that it had comprehensively addressed DCC 18.116.130 and DCC 18.128.260. The Hearings Officer finds that 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 11 of 69 Applicant treated DCC 18.116.130 and DCC 18.128.260 as conditions precedent (approval criteria) to meetingthe requirements of DCC 18.16.030(K). The Hearings Officerfinds that Applicant justified that it had not comprehensively addressed OAR 660-033-0130(16) by opining that OAR 660-033-0130 had been "codified by DCC 18.16.040." (Closing Argument, page 15) The Hearings Officer notes that Applicant provided no legal analysis or support for its "codified by DCC 18.16.040" statement. The Hearings Officer reviewed DCC 18.16.040 and found no clear and/or unequivocal statement that DCC 18.16.040 codified the entirety of OAR 660-033-0130. The Hearings Officer finds that had the Board intended that DCC 18.16.040 to be codified by OAR 660-033-0130 then it would have eliminated the reference to OAR 660-033-0130 in DCC 18.16.030(K). The Hearings Officer finds that DCC 18.16.040 does make numerous references to OAR 660-033-0130. For example, DCC 18.16.040(C)(3) indicates that a power generation facility may include temporary workforce housing described in OAR 660-033-0130 (17) and (22). Applicant did not propose any temporary housing. DCC 18.16.040(D) also makes multiple references to OAR 660-033-0130 with respect to wind power generation facilities. The applications in this case do not involve wind power generation. DCC 18.16.040(K)(5) states the following: "For the purposes of approving a land use application under OAR 660-033-0090, 660-033-120, 660-033- 0130 and 660-033-0135, soil classes, soil ratings or other soil designations used in or made pursuant to this definition are those of the NRCS in its most recent publication for that class, rating or designation." The Hearings Officer finds that Applicant's proposed hydroelectric facility is a "land use application under OAR 660-033-130." The Hearings Officer finds that DCC 18.16.040(K)(5) directs decision makers to apply NRCS soil classes/ratings/designations. The Hearings Officer finds that the multiple references, in DCC 18.16.040, to OAR 660-033-0130 are for the purpose of clarification or addition rather than "codification." DCC 18.16.040 does not say that it is a codification of OAR 660-033-0130. The Hearings Officer notes that an underlying reason for the above findings is the Oregon land use planning concept most often referred to as the "goal post rule." 3 Related to the "goal post rule" is a court created concept called the "codification requirement." The "codification requirement' says that permit approval standards and criteria set out in local regulations exist to inform interested parties of the basis on which an application will be approved or denied. Waveseer of Oregon, LLC v. Deschutes County, LUBA No. 2020-038. The Hearings Officer finds that the language of DCC 18.16.040(K)(5) clearly and unequivocally lists three sections that must be addressed. Persons interested in this case, when reviewing DCC 18.16.040(K)(5), are placed on notice that the requirements of all three (DCC 18.116.130, 18.128.260 and OAR 660-033-0130) are approval criteria and that a decision maker must consider all three. 3 The "goal post rule" requires an approval or denial be based on the standards and criteria that were applicable when the application was submitted. ORS 215.427(3)(a), also see Waveseer of Oregon, LLC v. Deschutes County, LUBA No. 2020- 038 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 12 of 69 Persons interested in this case expect an approval or denial decision to be based upon all three sections (DCC 18.116.130, 18.128.260 and OAR 660-033-0130). The Hearings Officer finds Applicant's argument that DCC 18.16.040 codified OAR 660-033-0130 is not supported by substantial evidence or persuasive argument. The Hearings Officer finds that Applicant is required, under DCC 18.16.030(K) to provide substantial evidence in the record demonstrating satisfaction of DCC 18.116.130, DCC 18.128.260 and OAR 660-033-0130. The Hearings Officer, based upon the findings later in this decision, found Applicant satisfied its burden with respect to DCC 18.116.130 and DCC 18.128.260. The Hearings Officer reviewed OAR 660-033-0130(16) and believes Applicant may have provided evidence into the record of this case that satisfies many, if not most, of the OAR 660-033-01300 6) requirements. However, the Applicant argued that it only needed to meet the requirements of DCC 18.16.040; which the Hearings Officer finds are similar, but not identical, to the requirements of OAR 660-033-0130. The Hearings Officer, based upon the evidence in the record, finds that this approval criterion is not met because of Applicant's failure to provide evidence clearly addressing the specific requirements of OAR 660-033-0130. Figure 1- Proposed Project Location within EFUIMUA10/FP Zones Chapter 18.32, Multiple Use Agricultural Zone (MUA-10) 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 13 of 69 Section 18.32.030. Conditional Uses Permitted. S. Hydroelectric facility, subject to DCC 18.116.130 and 18.128.260. FINDING: The Applicant proposed to construct and operate a commercial hydroelectric facility on the Subject Property which is partially within the MUA10 Zone. Based on the Modification of Proposal site plan, the power house portion of the hydroelectric facility will be located in the MUA10- Zoned portion of the Subject Property. Subject to the satisfaction of DCC 18.116.130 and 18.128.260, this criterion can be met. Relevant MUA10 criteria are addressed below. Section 18.32.040. Dimensional Standards In an MUA Zone, the following dimensional standards shall apply. A. The minimum lot size shall be 10 acres, except planned and cluster developments shall be allowed an equivalent density of one unit per seven and one-half acres and planned and cluster developments within one mile of an acknowledged urban growth boundary shall be allowed a five acre minimum lot size or equivalent density. COLW, in its July 28, 2020 open -record submission (page 9), argued that this criterion is applicable 1F0 Applii- -V,11L0 hxirlrncicrtri` facility r)rnnncal rr)i xA/ alC() arcyIlPri that Ann�lrant'r, sl►bmitted supportive materials do not meet the criterion's requirements. COLW stated, that: "In the MUA zone, '[t]he minimum lot size shall be 10 acres,' DCC 18.32.040(A)., which means that at least 10 acres of land zone MUA are required for development of the subject property. From LandWatch's calculations using the County's 'Interactive Map' tool on DIAL, the property appears to include only about 9 acres of land zoned MUA, and this criteria is not met...Each of its [Subject Property] underlying zones must be interpreted separately, including minimum lot size provisions." Neither Staff nor Applicant responded to the above -quoted COLW discussion/argument. The Hearings Officer does take notice that Staff and Applicant both indicated that DCC 18.32.040.D [building height], DCC 18.32.050 [yards], DCC 18.32.060 [stream setbacks] and DCC 18.32.070 [rimrock setbacks] were relevant criteria and must be addressed in this case. The Hearings Officer found no evidence or argument in the record supporting a claim that the DCC 18.32.040(A) dimensional standards do not constitute approval criteria; or, in the alternative how DCC 18.32.040(A) dimensional standards were satisfied by Applicant's proposal. The Hearings Officer finds that this criterion does apply to the MUA zoned land at the Subject Property. The Hearings Officer finds this criterion is not met. D. Building height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed by DCC 18.120.040. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 14 of 69 FINDING: The Applicant's Supplemental Burden of Proof statement indicated that the proposed hydroelectric facility building will have a maximum height of 25 feet, in compliance with the 30-foot maximum height criterion outlined above. To ensure compliance, the Hearings Officer finds it necessary to impose a Condition of Approval which states that no building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed by DCC 18.120.040. The Hearings Officer finds that with this Condition of Approval this criterion can be met. Section 18.32.050. Yards A. The front yard setback from the property line shall be a minimum of 20 feet for property fronting on a local street right of way, 30 feet from a property line fronting on a collector right of way, and 80 feet from an arterial right of way unless other provisions for combining accesses are provided and approved by the County. B. Each side yard shall be a minimum of 20 feet. For parcels or lots created before November 1, 1979, which are one-half acre or less in size, the side yard setback may be reduced to a minimum of 10 feet. For parcels or lots adjacent to property receiving special assessment for farm use, the adjacent side yard for a dwelling shall be a minimum of 100 feet. C. Rear yards shall be a minimum of 25 feet. Parcels or lots with rear yards adjacent to property receiving special assessment for farm use, the rear yards for a dwelling shall be a minimum of 100 feet. D. The setback from the north lot line shall meet the solar setback requirements in DCC 18.116.180. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. FINDING: The proposal does not include a dwelling with side and/or rear yards adjacent to property receiving special assessment for farm use. Based on the submitted site plan and the Supplemental Burden of Proof the proposed facility will be located over 100 feet from any property line. The Hearings Officer finds that the proposed structure complies with all applicable setbacks. Staff recommended a Condition of Approval related to structural setbacks from any north lot line shall meet the solar setback requirements in DCC 18.116.180. The Hearings Officer finds that with Staffs recommended Condition of Approval these criteria can be met. Section 18.32.060. Stream Setbacks To permit better light, air, vision, stream pollution control, fish and wildlife areas and to preserve the natural scenic amenities and vistas along the streams and lakes, the following setbacks shall apply. A. All sewage disposal installations, such as septic tanks and septic drainfields, shall be set back from the ordinary high water mark along all streams or lakes a minimum of 100 feet, measured at right angles to the ordinary high watermark. In those cases where practical difficulties preclude the location of the facilities at a distance of 100 feet and the County Sanitarian finds that a closer location will not endanger health, 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 15 of 69 the Planning Director or Hearings Body may permit the location of these facilities closer to the stream or lake, but in no case closer than 25 feet. B. All structures, buildings or similar permanent fixtures shall be set back from the ordinary high water mark along all streams or lakes a minimum of 100 feet measured at right angles to the ordinary high water mark. FINDING: There are no streams or lakes in the project vicinity. The Hearings Officer finds these criteria do not apply. Section 18.32.070. Rimrock Setback Setbacks from rimrock shall be as provided in DCC 1&116.160. FINDING: There is no rimrock in the project vicinity. The Hearings Officer finds this criterion does not apply. Chapter 18.96, Flood Plain (FP) Zone Section 18.96.20, Designated Areas. The areas of special flood hazard identified by the Federal Insurance Administration in a scientific and engineering report entitled "Flood Insurance Study for Deschutes County, Oregon and Incorporated Areas" revised September 2R 2©0�, with arcn►nr��rnying Flood Insurance Rate Maps is hereby adopted by reference and incorporated herein by this reference. The Flood Insurance Study is on file at the Deschutes County Community Development Department. The Flood Plain Zone shall include all areas designated as "Special Flood Hazard Areas" by the Flood Insurance Study for Deschutes County. When base flood elevation data has not been provided in the Flood Insurance Study, the Planning Director will obtain, review and reasonably utilize any base flood elevation or floodway data available from federal, state or other sources, in determining the location of a flood plain or floodway. FINDING: Applicant, in its Closing Argument (page 10) provided the following comments related to this section: 'The Deschutes County Flood Plain Zone includes all areas designated as 'Special Flood Hazard Areas, on the Federal Flood Insurance Rate Maps (FIRM). Special Flood Hazard Areas are lands that would be inundated by a 100 year flood event, that are at or below the base flood elevation (BFE). The flood map for this property is FIRM No. 41017CO2260D and 41017CO270D, Effective Dates: September 28, 2007. The power house and parking lot are not located within the mapped 100 year flood plain, nor is it located within the FP zone. See Figure 2, the attached UPDATED ENGINEERING REPORT, LB Engineering 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 16 of 69 (Jul. 13, 2020), and the submitted Proposed Site Plan. The powerhouse is located outside of the flood plain overlay and is five feet above the high water mark of McKenzie Reservoir. UPADATED ENGINEERING REPORT, LB Engineering Qul. 13, 2020). The hydroelectric building is not subject to the standards of the FP Zone. The tailrace and proposed utility trench are partially located within the 100 year flood plain and are thus subject to the standards of the FP zone." The Hearings Officer finds Applicant's above -quoted comments are credible. The Hearings Officer also reviewed the Zoning Map and site plans and finds that the tailrace and a portion of the utility trench are within the FP Zone. The Hearings Officer finds that the tailrace and a portion of the utility trench must meet the FP Zone conditional use approval requirements. Section 18.96.040. Conditional Uses Permitted. The following uses and their accessory uses maybe allowed subject to applicable sections of this title. E. Hydroelectric facilities subject to DCC 1&116.130 and 1&128.260. FINDING: The Hearings Officer incorporates the findings for DCC 18.96.20 as additional findings for this criterion. The proposed facility is allowed conditionally within the FP Zone subject to the provisions outlined in DCC 18.116.130 and 18.128.260. These provisions and any other applicable conditional use and supplementary code provisions are reviewed in subsequent findings. Section 18.96.060. Limitations on Conditional Uses. The following limitations shall apply to all uses allowed by DCC 18.96.040. A. No new construction of a dwelling (including manufactured housing), accessory structure or farm use structure shall be allowed in the floodway of any river or stream except for replacement in conformance with the applicable provisions of DCC 18.96 of a dwelling lawfully in existence as of the effective date of Ordinance 88-030. B. No new construction of a dwelling (including manufactured housing), accessory structure or farm use structure shall be located in the flood plain unless it can be demonstrated by the applicant that no alternative exists on the subject property which would allow the structure to be placed outside of the flood plain. C. No subdivision or partition shall be allowed which creates the potential for additional residential dwellings in the flood plain. FINDING: The Applicant is proposing to develop a hydroelectric facility, not a dwelling, manufactured home, accessory structure, farm use structure, replacement structure, or land division as listed in the above criteria. The Hearings Officer finds that these criteria do not apply to the subject application. D. All necessary federal, state and local government agency permits shall be obtained. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 17 of 69 FINDING: The Hearings Officer notes that this approval criteria states that "agency permits shall be obtained." The Hearings Officer finds that all federal state and local government permits need not be obtained prior to issue of this decision. Therefore, to ensure compliance with the above criterion the Hearings Officer finds it necessary to impose a Condition of Approval. The Hearings Officer finds that with the described Condition of Approval this criterion will be met. Section 18.96.080. Criteria to Evaluate Conditional Uses. A. A conditional use permit in a Flood Plain Zone shall not be approved unless all standards established by the Federal Emergency Management Agency and DCC Title 18 are addressed and findings are made by the Hearings Body or Planning Director that each of the standards and criteria are satisfied. FINDING: The Hearings Officer incorporates all findings for DCC 18.116.130 and DCC 18.128.260 as additional findings for this criterion. The Hearings Officer finds that all relevant requirements of DCC 18.116.130 and DCC 18.128.260 can be met. However, as noted in earlier findings, the Hearings Officer determined that some of the EFU and MUA standards were not met by Applicant's hydroelectric proposal. B. Approval to alter or relocate a water course shall require notification to adjacent communities, the Department of Land Conservation and Development, Department of State Lands, and other appropriate state and federal agencies prior to any such alteration or relocation and submit evidence to the Federal Insurance Administration. Maintenance shall be provided within the altered and relocated portion of said watercourse so that the flood carrying capacity is not diminished. FINDING: Applicant did not propose to alter or relocate a watercourse. The Hearings Officer finds that this criterion does not apply. C. A conditional use permit shall be based upon findings which relate to the property and existing and proposed structure(s). They shall not pertain to the property owner, inhabitants, economic or financial circumstances. FINDING: This land use decision is based upon findings which relate to the property and the proposed development. The findings do not pertain to the property owner, inhabitants, economic or financial circumstances. D. All structures in the flood plain shall meet the following standards. 1. Anchoring. a. All new construction and substantial improvements shall be anchored to prevent flotation, collapse or lateral movement of the structure b. All manufactured homes must be anchored to prevent flotation, collapse or lateral movement, and shall be installed using methods and practices that minimize flood damage. Anchoring methods may include, but are not limited to, use of over -the -top or frame ties to ground anchors. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 18 of 69 FINDING: Applicant provided the following comments, in the Supplemental Burden of Proof (page 11) related to this approval criterion: "The tailrace is not a typical structure, as contemplated in DCC 1&96. Although the Applicant acknowledges that the tailrace falls within the definition of 'structure; as defined in DCC 18.04 (pg.31) [Rather] its purpose as an irrigation system is to convey water from the McKenzie Hydro to the McKenzie Reservoir for irrigation use. The tailrace is intended to be full of water during the nine (9) month irrigation season. The tailrace has been designed to counteract buoyance and hydraulic forces for lateral movement. UPDATED ENGINEERING REPORT, LB Engineering QuL 1312020). The proposed utility trench is also not capable of floatation. The utility trench has been designed to resist hydrostatic and hydrodynamic forces for lateral movement that they maybe applied. The conduit and electrical distribution lines to be located within the utility trench have been floodproofed. This Application contemplates the removal of a small amount of material within the FP zone, which will be backfilled with 4" minus aggregate upon installation of the proposed utility conduit." The Hearings Officer finds the above -quoted Applicant comments to be credible. The proposal does not include any manufactured homes. The Hearings Officer finds this criterion is met. 2. Construction Materials and Methods. a. All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage. b. All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage. C. Electrical, heating, ventilation, plumbing and air-conditioning equipment and other service facilities shall be designed and/or otherwise elevated or located so as to prevent water from entering or accumulating within the components during conditions of flooding. FINDING: Applicant provided the following comments, in the Supplemental Burden of Proof (pages 11 & 12) related to this approval criterion: 'The proposed utility trench and conduits are designed to be waterproof, in order to protect the electrical distribution cables, located therewithin. The utility system has been designed to resist hydrostatic and hydrodynamic forces for lateral movement. The utility trench is not capable of flotation. The electrical conduits and distribution cable to be located within the trench are sealed to protect the electrical wires from water damage.... The tailrace is concrete and substantially impermeable to water penetration. The tailrace has been designed to counteract buoyancy and hydraulic forces for lateral movement. Because the tailrace is designed to be partially submerged during operation, other flood proofing measures are not applicable.... Although the Staff Report for this Application states that the tailrace is 'designed to collect water from McKenzie Reservoir and feed the water into a generator housed within the main hydroelectric facility building, this is not correct. Rather, the purpose of the tailrace is to serve as an irrigation conveyance system, discharging water from the powerhouse into McKenzie Reservoir. As 247-20-000187-LR, 191-CU, 192-CU, 193-sP, 461-MA Page 19 of 69 stated in the Introduction, the proposed McKenzie Hydro is an 'in -conduit' hydroelectric facility which takes advantage of existing pressure within TSID's irrigation pipeline. The proposed facility utilizes the pressurized water to generate power and the tailrace conveys the water along its journey into McKenzie Reservoir, to the Black Butte Pipeline, and finally to Lower Bridge irrigators..." The Hearings Officer finds the above -quoted Applicant comments to be credible. The Hearings Officer finds this criterion is met. 3. Utilities. a. All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system. FINDING: The submitted application materials do not include a proposal for a new or replacement water supply system. The Hearings Officer finds this criterion does not apply to Applicant's proposal in this case. b. New and replacement sanitary systems shall be designed to minimize or eliminate infiltration of floodwaters into the system and discharge from the system into flood waters. C. On -site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding consistent with the Oregon Department of Environmental Quality as specified in OAR 340- 071-0100 et seq. FINDING: No sanitary systems or on -site waste disposal systems are proposed by Applicant. The Hearings Officer finds that these criteria do not apply to the subject application. 4. Below -grade crawlspace is allowed subject to the standards in FEMA Technical Bulletin 11-01. FINDING: Applicant's proposal does not include below -grade crawlspaces developed in association with the hydroelectric facility. The Hearings Officer finds that this criterion does not apply to the subject application. G. Specific Standards. In the Flood Plain Zone, the following requirements must be met. Z Nonresidential Construction. New construction and substantial improvement of any commercial, industrial or other nonresidential structure shall either have the lowest floor, including basement, elevated at least one foot above the level of the base flood elevation, or, together with attendant utility and sanitary facilities, shall. a. Be flood proofed so that below the base flood level the structure is watertight with walls substantially impermeable to the passage of water. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 20 of 69 b. Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy. C. Be certified by a registered professional engineer or architect that the design and methods of construction are subject to accepted standards of practice for meeting provisions of DCC 1&96.080, based on their development and/or review of the structural design, specifications and plans. Such certifications shall be provided to the County as set forth in DCC 1 & 96.070(H). d. Nonresidential structures that are elevated, but not flood proofed, must meet the same standards for space below the lowest floor as described in DCC 1&96.080(F). FINDING: Applicant provided the following comments, in the Supplemental Burden of Proof (pages 12 & 13), related to this approval criterion: "The proposed utility trench is simply a trench, it does not have a floor or basement. It is not capable of floating. This being said, it has been designed by CEC, consistent with CEC standards. LB Engineering has reviewed CED's design of the utility trench and notes that it has been designed to resist hydrostatic and hydrodynamic forces for lateral movement. ...The utility conduit to be located within is waterproofed to protect CEC's distribution lines.... the tailrace is designed to be full of water for nine months of the year. This necessitates that the tailrace be designed to be resistant to water damage. It is designed to resist hydrostatic and hydrodynamic forces for lateral movement, as well as counteract buoyancy... Because the tailrace is designed to be partially submerged during operation, other f l.^,odpr pfing measures are not nnnlicable..." The Hearings Officer finds the above -quoted Applicant comments to be credible. The Hearings Officer finds this criterion is met. e. Applicants for floodproofing nonresidential buildings shall be notified that flood insurance premiums will be based on rates that are one foot below the floodproofed level (e.g. a building constructed to the flood level will be rated as one foot below that level). FINDING: Staff, in the Staff Report (page 20), suggested that the Hearings Officer impose a Condition of Approval indicating that the Applicant will be notified that flood insurance premiums for flood - proofed nonresidential buildings will be based on rates that are one foot below the flood -proofed level (e.g. a building constructed to the flood level will be rated as one foot below that level). The Hearings Officer finds that with Staffs recommended Condition of Approval this criterion will be met. f. Applicants shall supply a comprehensive Maintenance Plan for the entire structure that shall include but not limited to: exterior envelope of structure, all penetrations to the exterior of the structure, all shields, gates, barriers, or components designed to provide f/oodproofing protection to the structure; all seals or gaskets for shields, gates, barriers, or components; and, the location of all shields, gates, barriers, 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 21 of 69 and components as well as all associated hardware, and any materials or specialized tools necessary to seal the structure. g. Applicants shall supply an Emergency Action Plan (EAP) for the installation and sealing of the structure prior to a flooding event that clearly identifies what triggers the EAP and who is responsible for enacting the EAP. FINDING: Applicant provided the following comments, in the Supplemental Burden of Proof (pages 12 & 13) related to this approval criterion: "The tailrace will be inspected regularly by TSID to ensure it is in working order... Because the tailrace is intended to be partially submerged, other flood proofing measures, including criterion (G)(2)(A are not applicable The tailrace has been designed to operate in a hydric environment and is resistant to hydraulic forces, meaning any flooding event will have little impact... The proposed utility trench has been designed to resist hydrostatic and hydrodynamic forces for lateral movement, which may be applied during a flooding event.. The electrical conduit and distribution line to be located within the utility trench have been designed to operate in a marine environment and are waterproof. However, the Applicant will inspect the portion of the utility trench located in the FP Zone to ensure no adverse hydrologic impacts have incurred... Because the utility trench is designed to be sealed and resistant to hydrostatic and hydrodynamic loads and effects of buoyancy during a flooding event, criterion (G)(2)(g) is met." The Hearings Officer finds the above -quoted Applicant comments to be credible. The Hearings Officer finr:c tho "ctri irti iroc" nrnnncorl to he lnratarl Within the FP 7nna in thic r?sP are I Inin, le and are not i 11i.w a— .xi u�- �.... t—vtlw ..... -, _, _I -'- the type of "structures" typically reviewed under this criterion. The Hearings Officer finds that Applicant addressed this criterion as best it could while considering the nature of the proposed "structures." The Hearings Officer finds this criterion is met. 6. Parking Facilities. No parking facility shall be located within 20 feet (measured at right angles) of the ordinary high water mark (OHM). FINDING: The application materials include a proposal for a parking area associated with the hydroelectric facility. The Ordinary High Water Mark is defined in DCC 18.04 as follows: "'Ordinary High Water Mark (OHM)' means the highest level on the bank or shore of a lake, river or stream to which the water ordinarily rises annually in season." The Hearings Officer finds that there are no lakes, rivers, or streams within 20 feet of the proposed parking area. The Hearings Officer finds Applicant's proposal is in compliance with this criterion. The Hearings Officer finds this criterion will be met. & Storage of material or equipment, incidental to an established primary use on the property that is either not subject to damage by flood may be permitted. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 22 of 69 If such material is not readily removable, it shall be anchored to prevent flotation and shall not obstruct water flow. Material or equipment stored shall include only items which will not create a hazard to the health or safety of persons, property, animals or plant life should the storage area be inundated. FINDING: Applicant provided the following comments, in the Supplemental Burden of Proof (page 14) related to this approval criterion: "In the Staff Report, it is noted that overhead electrical distribution lines are considered equipment that is incidental to the hydroelectric facility. Although the Applicant no longer proposes the use of overhead electrical distribution lines, the Applicant is concerned that staff believes that distribution lines necessary to transfer power from the McKenzie Hydro to BPA's Redmond Substation are to be considered 'stored' on the property. CEC's distribution lines will be located in the proposed utility trench, within waterproof conduits... These distribution lines are not owned by TSID, nor are they being stored on the Subject Property... The Subject Property is not located in a floodway and the utility trench will not obstruct water flow...This criterion is not applicable, although it has been met by the Applicant." Staff, in the Staff Report (page 21), provided the following comments related to this approval criterion: "The applicant has clarified, through written comment, that the proposed development will not include CfAroge of "u y material nr egiiipment nt the 1-lydrn Fnrilily that k suhiect to flooding". Staff notes that .., u the applicant proposes to include overhead electrical distribution lines in association with the proposed development. The proposed overhead distribution lines are considered equipment that is incidental to the hydroelectric facility. The location and design of the proposed distribution lines are not clear based on the submitted application materials. Without knowing the specific location and design of the proposed distribution lines, staff cannot fully determine whether any portion of the proposed distribution lines would be located on the FP portion of the subject property. Staff defers to the Hearings Officer to determine if the applicant has met the above criterion." The Hearings Officer finds no Staff comments related to Applicant's proposal to bury the electrical distribution lines in a trench; eliminating Applicant's proposal to utilize overhead distribution lines. Further, the Hearings Officer finds Staff provided no legal support or justification to categorize power lines as "equipment." The Hearings Officer, therefore, finds Applicant's above -quoted comments to be credible and generally persuasive. The Hearings Officer finds this criterion is not applicable H. Floodways. In f/oodways the following provisions shall apply. 1. Encroachments, including fill and removal, replacement of a dwelling lawfully in existence on the effective date of Ordinance 88-030 and other development are prohibited unless certification by a registered professional engineer is provided demonstrating that the proposed encroachments will not result in any increase in flood levels during a base flood discharge. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 23 of 69 2. The applicant must demonstrate that all necessary federal, state and local government agency permits have been or can be obtained and that all other applicable sections of DCC Title 18 have been satisfied. FINDING: The Applicant is not proposing any development or fill and removal within an identified floodway. The Hearings Officer finds that these criteria do not apply. Section 18.96.085. Elevation Certification. Elevation of all new construction, including replacement and substantial improvements, relative to mean sea level of the lowest floor shall be documented before the framing inspection with a survey certified by a State of Oregon registered professional engineer or land surveyor. FINDING: Staff, in the Staff Report (page 22), stated that "to ensure compliance, staff includes the above criterion as a suggested Condition of Approval." The Applicant, in the Supplemental Burden of Proof, (page 15) stated that it had "engaged Freshwater Surveying to complete an Elevation Certificate after construction is completed. Compliance with this standard should be subject to a condition." The Hearings Officer finds with Staffs recommended Condition of Approval this criterion will be met. Section 18 96 090 Yard and Setback Requirements. in an FP zone, the following yard and setback requirements shall be maintained, A. The front setback shall be a minimum of 20 feet from a property line fronting on a local street, 30 feet from a property line fronting on a collector and 50 feet from an arterial. B. There shall be a minimum side yard of 10 feet for all uses. C. The minimum rear yard shall be 20 feet. D. The setback from a north lot line shall meet the solar setback requirements in DCC 18.116.180. E. The minimum yard setback for a nonfarm use from the property line adjacent to a farm use not owned by the applicant shall be 100 feet. F. in addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. FINDING: Applicant provided the following comments, in the Supplemental Burden of Proof (page 14) related to this approval criterion: 'The tailrace will be located over 100 feet from any property line. The proposed utility trench will be located over 20 feet from any property line. The proposed utility trench complies will all applicable setbacks. Furthermore, the utility trench and underground power system is designed to follow the pathway of the access driveway. This will avoid additional impacts to the natural environment and 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 24 of 69 provide for efficient maintenance of the power system." Staff recommended, in the Staff Report (page 22), that a Condition of Approval should be included in any approval of Applicant's proposal to assure solar requirements (adjacent to the north lot line) are met. The Hearings Officer found no evidence in the record indicating Applicant opposed such a Condition of Approval. Therefore, the Hearings Officer finds that with Staffs recommended Condition of Approval this criterion can be met. Section 18.96.100. Stream Setback. To permit better light, air, vision, stream and pollution control, to protect fish and wildlife areas and to preserve the natural scenic amenities along streams and lakes, the following setbacks shall apply. A. All sewage disposal installations such as septic tanks or septic drain fields shall be setback from the ordinary high water mark along all streams or lakes a minimum of 100 feet, measured at right angles to the ordinary high water mark. In those cases where practical difficulties preclude the location of the facilities at a distance of 100 feet, and the County Sanitarian finds that a closer location will not endanger public health orsafety, a setback exception maybe permitted to locate these facilities closer to the stream or lake, but in no case closer than 25 feet. B. All structures, buildings or similar permanent fixtures shall be set back from the ordinary high water mark along all streams or lakes a minimum of 100 feet measured at right angles from the ordinary high water mark. FINDING: There are no streams or lakes in the project vicinity. The Hearings Officer finds this criterion is not applicable to Applicant's proposed hydroelectric facility. Section 18 96 120. Warning and Disclaimer of Liability. The degree of flood protection required by DCC Title 18 is considered reasonable for regulatory purposes and is based upon scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by man-made or natural causes. DCC Title 18 shall not create liability on the part of Deschutes County, any officer, agent or employee thereof, or the Federal Insurance Administration, for any flood damages that result from reliance on DCC Title 18 or any decision lawfully made hereunder. FINDING: This statement is provided to the Applicant for informational purposes. Chapter 18.116, Supplementary Provisions Section 18.116.020. Clear vision areas. A. In all zones, a clear vision area shall be maintained on the corners of all property at the intersection of two streets or a street and a railroad. A clear vision area shall contain no planting, fence, wall, structure, or temporary or permanent obstruction exceeding three and one-half feet in height, measured from the top of the curb or, 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 25 of 69 where no curb exists, from the established street centerline grade, except that trees exceeding this height may be located in this area provided all branches and foliage are removed to a height of eight feet above the grade. B. A clear vision area shall consist of a triangular area on the corner of a lot at the intersection of two streets or a street and a railroad. Two sides of the triangle are sections of the lot lines adjoining the street or railroad measured from the corner to a distance specified in DCC 18.116.020(8)(1) and (2). Where lot lines have rounded corners, the specified distance is measured from a point determined by the extension of the lot lines to a point of intersection. The third side of the triangle is the line connecting the ends of the measured sections of the street lot lines. The following measurements shall establish clear vision areas within the County. 1. In an agricultural, forestry or industrial zone, the minimum distance shall be 30 feet or at intersections including an alley, 10 feet. 2. In all other zones, the minimum distance shall be in relationship to street and road right of way widths as follows: Right of way Width Clear vision 0 feet or more 20feet 0 feet 30 feet 0 feet and less I 40 feet I I FINDING: Based upon Applicant's record submissions the Hearings Officer finds no clear vision area will be obstructed with this proposal. The Hearings Officer finds this criterion is met. Section 18 116 030. Off Street Parking and Loading. A. Compliance. No building or other permit shall be issued until plans and evidence are presented to show how the off-street parking and loading requirements are to be met and that property is and will be available for exclusive use as off-street parking and loading. The subsequent use of the property for which the permit is issued shall be conditional upon the unqualified continuance and availability of the amount of parking and loading space required by DCC Title 18. B. Off -Street Loading. Every use for which a building is erected or structurally altered to the extent of increasing the floor area to equal a minimum floor area required to provide loading space and which will require the receipt or distribution of materials or merchandise by truck or similar vehicle, shall provide off-street loading space on the basis of minimum requirements as follows: 2. Restaurants, office buildings, hotels, motels, hospitals and institutions, schools and colleges, public buildings, recreation or entertainment facilities and any similar use which has a gross floor area of 30,000 square feet or more 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 26 of 69 shall provide off-street truck loading or unloading berths subject to the following table. Sq. Ft. of F1oorArea No. of Berths Required Less than 30,000 0 30,000-100,000 1 100,000 and Over 2 FINDING: The Applicant proposed to establish a new hydroelectric facility, approximately 1,170 square -feet in size, which is less than 30,000 square -feet. At this size, the proposed facility is not required to provide a loading berth. The Hearings Officer finds these criteria will be met. C. Off -Street Parking. Off-street parking spaces shall be provided and maintained as set forth in DCC 18.116.030 for all uses in all zoning districts. 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 18 is changed. D. Number of Spaces Required. Off-street parking shall be provided as follows: 9. Other uses not specifically listed above shall be provided with adequate parking as required by the Planning Director or Hearings Body. The above list shall be used as a guide for determining requirements for said other uses. r�ue�'w"'. ['t_= 4.1-,, r� FF n...�...-+�.-. �.. �G 4. 77\ proviAgr� tkn fn11^%Aii ncl rnmmontc related to these rIIV DING Jldl 1, II II a Ic JCujj Re/jv, c kpageS v tx Z_. ), vl wvi. �.0 a 1 � 11-11 1b...�a criteria: 'The applicable code section does not specify parking requirements for utility facilities or hydroelectric facilities. Therefore, staff finds that the Planning Director has the ability to determine the parking requirements under D(9), above. The applicant states that 1-2 employees will visit the site daily to check canal flow measurements and adjust valves and head gates. The site plan shows a parking area on the east side of the building which measures 36' by 20' and contains two (2) standard parking spaces and one (1) ADA-compliant parking space. Staff finds that the minimum required number of parking spaces should be equal to the number of employees on the largest working shift, which in this case is two. Therefore, staff finds that the applicant's proposal to provide two (2) standard parking spaces and one (1) ADA-compliant parking space on the east side of the building complies with above criteria. These criteria will be met. The Hearings Officer finds the above -quoted Staff comments to be credible and persuasive. The Hearings Officer finds these criteria are met. E. General Provisions. Off -Street Parking. 1. More Than One Use on One or More Parcels. In the event several uses occupy a single structure or parcel of land, the total requirement for off-street 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 27 of 69 parking shall be the sum of requirements of the several uses computed separately. 2. joint Use of Facilities. The off-street parking requirements of two or more uses, structures or parcels of land may be satisfied by the same parking or loading space used jointly to the extent that it can be shown by the owners or operators of the uses, structures or parcels that their operations and parking needs do not overlap at any point of time. If the uses, structures or parcels are under separate ownership, the right to joint use of the parking space must be evidence by a deed, lease, contract or other appropriate written document to establish the joint use. FINDING: The proposed hydroelectric facility will be the sole new use established on the Subject Property. No other uses will be sharing the proposed off-street parking spaces. Therefore, the Hearings Officer finds these criteria are not applicable. 3. Location of Parking Facilities. Off-street parking spaces for dwellings shall be located on the same lot with the dwelling. Other required parking spaces shall be located on the same parcel or another parcel not farther than 500 feet from the building or use they are intended to serve, measured in a straight line from the building in a commercial or industrial zone. Such parking shall be located in a safe and functional manner as determined during site plan approval. The burden of proving the existence of such off - premise parking arrangements rests upon the applicant. A. Use of Parking Facilities. Required parking space shall be available for the parking of operable passenger automobiles of residents, customers, patrons and employees only and shall not be used for the storage of vehicles or materials or for the parking of trucks used in conducting the business or used in conducting the business or use. S. Parking, Front Yard. Required parking and loading spaces for multi family dwellings or commercial and industrial uses shall not be located in a required front yard, except in the Sunriver UUC Business Park (BP) District and the La Pine UUC Business Park (LPBP) District and the LaPine UUC Industrial District (LPI), but such space maybe located within a required side or rear yard. FINDING: Staff, in the Staff Report, provided the following comments: "The parking area for the proposed hydroelectric facility will be located on -site and within 500 feet of the location of the proposed facility. Staff finds that the proposed parking spaces will be located in a safe and functional manner. Additionally, no comments were received from the County Senior Transportation Planner or County Road Department challenging the safety or functionality of the proposed parking spaces. The required parking spaces are provided for the primary accommodation of operable passenger automobiles of employees of the Three Sisters Irrigation District. Additionally, none of the required parking spaces will be located in a required frontyard. These criteria will be met." 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 28 of 69 The Hearings Officer finds the above -quoted Staff comments to be credible and persuasive. The Hearings Officer finds that these criteria are met. F. Development and Maintenance Standards for Off -Street Parking Areas. Every parcel of land hereafter used as a public or private parking area, including commercial parking lots, shall be developed as follows: 1. Except for parking to serve residential uses, an off-street parking area for more than five vehicles shall be effectively screened by a sight obscuring fence when adjacent to residential uses, unless effectively screened or buffered by landscaping or structures. FINDING: The proposed hydroelectric facility is not considered a residential use and, as described in previous findings, will include three (3) total parking spaces (2 standard spaces and 1 ADA- compliant space). Therefore, the Hearings Officer finds that this criterion is not applicable to the subject application. 2. Any lighting used to illuminate off-street parking areas shall be so arranged that it will not project light rays directly upon any adjoining property in a residential zone. FINDING: Applicant provided the following comments, in the Supplemental Burden of Proof (page 15) related to this approval criterion: 1M,n do liifvnt nrn ncoc `Ovtcrinr iiahtin in accordance with the Prnnn ed Site Plan, Facility exterior 111c _Npua. �.vi �� N, vpv.,.. _, "b• ..g .n -I----- I lighting will consist of an outdoor light over each door that is shielded and directs light downward. No light rays will be directly projected upon residentially zoned properties to the west and northwest." Staff, in the Staff Report, stated the following: 'The Subject property is adjacent to residentially zoned properties to the west and northwest. The submitted elevation drawings indicate that the proposed facility will include exterior lighting on all sides, including the eastern side facing the proposed parking area. It will be made a suggested Condition c f Approval that any lighting used to illuminate off-street parking areas shall be so arranged that it will not project light upon any adjoining property in a residential zone." The Hearings Officer takes notice of an open -record submission dated August 4, 2020 (joint letter from Applicant and Desert Sand Arabian Ranch Subdivision - "8/4/2020 Applicant/Sand Letter"). The 8/4/2020 Applicant/Sand Letter stated the following: "TSID proposes eight (8) wall -mounted lights, approximately 12 feet in height, as outdoor lighting. The Subject Property is adjacent to residentially zoned properties to the west and northwest. The submitted elevation drawing indicate that the proposed facility will include exterior lighting on all sides, including the astern side facing the proposed parking area. TSID and Desert Sand recognize the potential for light to be projected upon properties of Desert Sand residents. To resolve this concern, TSID agrees that all exterior lighting shall be shielded so that 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 29 of 69 direct light does not project off -site. Desert Sand residents requested TSID consider installing motion sensor lighting. Additionally, TSID made clear there is no intention to install elevated street lighting, as supported by the application materials and Deschutes County Staff." The Hearings Officer finds Applicant's above -quoted comments are relevant to this approval criterion. The Hearings Officer finds Staffs recommended Condition of Approval is appropriate and necessary to assure compliance with the criterion. The Hearings Officer finds that with Staffs recommended Condition of Approval this criterion can be met. 3. Groups of more than two parking spaces shall be located and designed to prevent the need to back vehicles into a street or right of way other than an alley. 'FINDING: Given the distance from the proposed parking area to adjacent roadways, vehicles will not be required to back onto a street or right-of-way. 4. Areas used for standing and maneuvering of vehicles shall be paved surfaces adequately maintained for all weather use and so drained as to contain any flow of water on the site. An exception may be made to the paving requirements by the Planning Director or Hearings Body upon finding that. a. A high water table in the area necessitates a permeable surface to reduce surface water runoff problems, or b. The subject use is located outside of an unincorporated community and the proposed surfacing -will be maintained in a manner which will not create dust problems for neighboring properties; or C. The subject use will be in a Rural Industrial Zone or an Industrial District in an unincorporated community and dust control measures will occur on a continuous basis which will mitigate any adverse impacts on surrounding properties. FINDING: Staff, in the Staff Report (page 27), provided the following comments: "The Subject Property is located outside of an unincorporated community. The applicant is proposing to have three (3) paved parking spaces. The proposed service drive, connecting the parking area to Simmons Road, is not intended to be a paved surface, as evidenced in the submitted application materials. As a suggested Condition of Approval, the proposed surfacing of the service drive shall be maintained in a manner which will not create dust problems for neighboring properties. Specifically, staff suggests the applicant be required to apply a dust suppressant such as Chlorides, resins, clays, oils or other natural binding compounds." Applicant provided the following comments, in the Supplemental Burden of Proof (page 15) related to this approval criterion: 'There is an existing service driveway which will connect the proposed parking area to Simmons Rd. The driveway has remained unpaved since its installation in 1957, the some year the McKenzie re- 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 30 of 69 regulating reservoir was built. The Applicant will maintain the driveway in a manner which will not create dust problems for neighboring properties. With only 1-2 employees working onsite, the amount of vehicle traffic to the Subject Property will be minimal. With the Applicant employing Best Management Practices (BMPs) for dust control, the dust -related impact to surrounding properties will be extremely limited. No condition of approval for dust control is necessary." The Hearings Officer finds the above -quoted comments from both the Applicant and Staff expressed concern over the potential of dust impacts created by use of the service road. The Hearings Officer finds that to assure dust does not impact neighboring properties the Staff recommended condition is appropriate and necessary. The Hearings Officer finds that with Staffs recommended Condition of Approval this criterion can be met. S. Access aisles shall be of sufficient width for all vehicular turning and maneuvering. FINDING: Staff, in the Staff Report (page 27), provided the following comments related to this criterion: 'The submitted application materials indicate that there will be one access aisle that will provide access to the proposed parking area. As proposed, the access aisle will have a width of 36 feet at the point nearest the parking area, and tapers down to a width of approximately24 feet before connecting to the proposed service drive. Staff finds that the proposed access aisle width of 24 feet will comply with the standards of DCC 18.116.030. This criterion will be met." The Hearings Officer finds the above -quoted Staff comments are credible and persuasive. The Hearings Officer finds this criterion will be met. 6. Service drives to off-street parking areas shall be designed and constructed to facilitate the flow of traffic, provide maximum safety of traffic access and egress and maximum safety of pedestrians and vehicular traffic on the site. The number of service drives shall be limited to the minimum that will accommodate and serve the traffic anticipated. Service drives shall be clearly and permanently marked and defined through the use of rails, fences, walls or other barriers or markers. Service drives to drive in establishments shall be designed to avoid backing movements or other maneuvering within a street other than an alley. FINDING: Applicant provided the following comments, in the Supplemental Burden of Proof (page 16) related to this approval criterion: "The Applicant proposes a single two-way service drive with an approximate width of 24 feet, as indicated on the attached Access Plan. This complies with the minimum width for two-way vehicle travel, as indicated in Table 1 of DCC 18.166. The Applicant has clearly and permanently marked and defined the proposed service drive through the use of boulder markers. This is detailed on the Access Plan and has been verified by Deschutes County staff during their June 23, 2020 site visit." 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 31 of 69 Staff, in the Staff Report (pages 16 & 17) provided the following comments: "The submitted application materials indicate that one (1) gravel two-way service drive will be utilized in the parking area design associated with the proposed hydroelectric facility. Staff finds that, because the single service drive is the only proposed service drive, the total number of service drives are already limited to the minimum that will accommodate and serve the traffic anticipated. The proposed two- wayservice drive has a width of approximately 20.25feet, as indicated on the submitted site plan. The required minimum width for two-way vehicle travel is 24 feet, as indicated in Table 1 of DCC 18.116. Based on staffs observation of the project site, staff finds it feasible for the applicant to construct a 24-foot-wide service drive in compliance with the above criterion. To ensure compliance, staff recommends a Condition of Approval requiring the applicant to submit a revised site plan illustrating a 24-foot-wide service drive. Based on the submitted application materials, the applicant has not addressed the requirement to clearly and permanently mark and define the proposed service drive through the use of rails, fences, walls or other barriers or markers. As a suggested Condition of Approval, prior to the issuance of building permits for the proposed facility, the applicant must submit a revised site plan specifying the location of the fencing, rails, walls, or other barriers or markers used to mark and define the proposed service drive." The Hearings Officer finds that Applicant's service drive must meet the minimum width requirements of 24 feet. To assure that the minimum service drive width is attained through A—licant's constn irtion process the Hearings Officer finds that Staffs recommendation of a Condition of Approval is necessary. The Hearings Officer finds Applicant and Staff possibly differ in their belief that the service drive has been clearly delineated/marked by boulders. The Hearings Officer finds that to assure the service drive is adequately delineated/marked the Hearings Officer finds Staffs recommended Condition of Approval is necessary. The Hearings Officer finds that with Staffs recommended Condition of Approval this criterion can be met. 7. Service drives shall have a minimum vision clearance area formed by the intersection of the driveway centerline, the street right of way line and a straight line joining said lines through points 30 feet from their intersection. FINDING: Applicant provided the following comments, in the Supplemental Burden of Proof (page 17) related to this approval criterion: "The location where the existing service driveway connects with Simmons Rd. is detailed on the Access Plan. There is no intersection or turn movement possible when exiting the exiting service driveway and entering Simmons Rd. All vehicles must continue west along Simmons Rd. upon existing the service driveway. The entrance to Simmons Rd. has adequate vision clearance." The Hearings Officer finds that Applicant's above -quoted comments are credible. The Hearings Officer finds that the Access Plan referenced by Applicant in the above -quoted comments shall be considered as part of Condition of Approval A. The Hearings Officer, therefore, revises Condition of 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 32 of 69 Approval A to specifically include Applicant's Access Plan. The Hearings Officer finds that with the revision of Condition of Approval A to specifically include Applicant's Access Plan this criterion can be met. 8. Parking spaces along the outer boundaries of a parking area shall be contained by a curb or bumper rail placed to prevent a motor vehicle from extending over an adjacent property line or a street right of way. FINDING: The parking spaces for the proposed development will not be located near a property line or street right-of-way. G. Off -Street Parking Lot Design. All off-street parking lots shall be designed subject to County standards for stalls and aisles as set forth in the following drawings and table: (SEE TABLE 1 AT END OF CHAPTER 18.116) 1. For one row of stalls use "C" + "D" as minimum bay width. 2. Public alley width may be included as part of dimension V," but all parking stalls must be on private property, off the public right of way. 3. For estimating available parking area, use 300-325 square feet per vehicle for stall, aisle and access areas. 4. For large parking lots exceeding 20 stalls, alternate rows maybe designed for compact cars provided that the compact stalls do not exceed 30 percent of the total required stalls. A compact stall shall be eight feet in width and 17 feet h? length with appropriate aisle width. FINDING: Staff, in the Staff Report (pages 28 & 29), provided the following comments related to this criterion: "The parking spaces for the proposed development will meet the 9-foot by 20 foot standard under Table 1. As discussed previously, staff recommends a Condition of Approval requiring the applicant to submit a revised site plan clearly showing how the proposed service drive will be designed to a minimum 24 foot width. The applicant is proposing a total of three (3) parking stalls on the subject property configured to a 90-degree design, one (1) of which is proposed as an ADA-compliant parking space. None of the proposed spaces are for the parking of compact cars. Staff finds that the proposed off-street parking lot design complies with the above approval criteria." The Hearings Officer finds Staffs above -quoted comments are credible and not disputed by Applicant. The Hearings Officer finds that with Staffs recommended Condition of Approval, this criterion can be met. Section 18.116.031. Bicycle Parking. New development and any construction, renovation or alteration of an existing use requiring a site plan review under DCC Title 18 for which planning approval is applied for 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 33 of 69 after the effective date of Ordinance 93-005 shall comply with the provisions of DCC 1 & 116.031. A. Number and Type of Bicycle Parking Spaces Required. 1. General Minimum Standard. a. All uses that require off-street motor vehicle parking shall, except as specifically noted, provide one bicycle parking space for every five required motor vehicle parking spaces. b. Except as specifically set forth herein, all such parking facilities shall include at least two sheltered parking spaces or, where more than 10 bicycle spaces are required, at least 50 percent of the bicycle parking spaces shall be sheltered. C. When the proposed use is located outside of an unincorporated community, a destination resort, and a rural commercial zone, exceptions to the bicycle parking standards may be authorized by the Planning Director or Hearings Body if the applicant demonstrates one or more of the following. i. The proposed use is in a location accessed by roads with no bikeways and bicycle use by customers or employees is unlikely. ii. The proposed use generates less than 50 vehicle trips per day. iii. No existing buildings on the site will accommodate bicycle parking and no new buildings are proposed. iv. The size, weight, or dimensions of the goods sold at the site makes transporting them by bicycle impractical or unlikely. V. The use of the site requires equipment that makes it unlikely that a bicycle would be used to access the site. Representative examples would include, but not be limited to, paintball parks, golf courses, shooting ranges, etc. FINDING: Staff, in the Staff Report (page 29), provided the following comments related to this criterion: 'Based on the above criteria, bicycle parking requirements are triggered by uses that require at least five (5) parking spaces. Based on the submitted application materials, the applicant has proposed to establish three (3) total parking spaces. Staff finds that the proposed facility is in a location accessed by roads with no bikeways, that bicycle use by employees is unlikely based on projected use and, as a result, no bicycle parking is required for the proposed development. These criteria are met. The Hearings Officer finds Staffs above -quoted comments are credible and not disputed by Applicant. The Hearings Officer finds this criterion will be met. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 34 of 69 Section 18.116.130. Hydroelectric Facilities. A. No new hydroelectric facilities shall be constructed, and no existing hydroelectric facilities shall be enlarged or expanded in size of area or generating capacity, on the following rivers and streams within Deschutes County. 1. Deschutes River, from its headwaters to River Mile 227, above, but not including Wickiup Dam, and from Wickiup Dam to River Mile 171 below Lava Island Falls, 2. Crooked River; 3. Fall River, 4. Little Deschutes River, S. Spring River, 6. Paulina Creek, 7. Whychus Creek, and 8. Tumalo Creek. B. Hydroelectric facilities are allowed as a conditional use on the Deschutes River at Wickiup Dam, and from River Mile 171 below Lava Island Falls downstream to the northern Deschutes County line. Such conditional use shall be governed by the conditions set forth in DCC 18.128.260. FINDING: The proposal is for a new hydroelectric facility on the Subject Property, which is located over 10 miles from Whychus Creek, the nearest of the above -listed rivers and streams. The Hearings Officer finds these criteria are met. Chapter 18.124. Site Plan Review Section 18.124.030. Approval Required. A. No building, grading, parking, land use, sign or other required permit shall be issued for a use subject to DCC 18.124.030, nor shall such a use be commenced, enlarged, altered or changed until a final site plan is approved according to DCC Title 22, the Uniform Development Procedures Ordinance. B. The provisions of DCC 18.124.030 shall apply to the following. 1. All conditional use permits where a site plan is a condition of approval, 2. Multiple family dwellings with more than three units, 3. All commercial uses that require parking facilities, 4. All industrial uses; 5. All other uses that serve the general public or that otherwise require parking facilities, including, but not limited to, landfills, schools, utility facilities, churches, community buildings, cemeteries, mausoleums, crematories, airports, parks and recreation facilities and livestock sales yards, and 6. As specified for Flood Plain Zones (FP) and Surface Mining Impact Area Combining Zones (SMIA). 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 35 of 69 FINDING: The proposed hydroelectric facility is a use that requires parking facilities. The Hearings Officer finds that the provisions of this chapter are applicable. Section 18.124.060. Site Plan Approval Criteria. Approval of a site plan shall be based on the following criteria. A. The proposed development shall relate harmoniously to the natural environment and existing development, minimizing visual impacts and preserving natural features including views and topographical features. FINDING: The area environment consists primarily of McKenzie Reservoir and two (2) HDPE irrigation pipelines which serve approximately 2,000 acres of farmland within the boundaries of the TSID. Existing internal roads, driveways and parking areas are dirt or gravel and the property is currently accessed by a driveway connecting to Simmons Road, to the northwest of the project site. Natural features are limited to undeveloped native vegetation and topography on the subject property. Scenic views from the Subject Property include the Sisters Mountains and Broken Top Mountain to the southwest, and Black Butte and Mount Jefferson to the northwest. Applicant stated the following in its Supplemental Burden of Proof (page 18): "Proposed development will occur within a 3,600-square foot (60'square), which is an incredibly small portion of the total acreage of the Subject Property. The 3,600-square foot area constitutes approximately 0.08% of the total 97.60-acre Subject Property in terms of impact on the existing natural environment Tho r)vcrhutPc r'nunhr �nninu mrrn . riirntac tha nnccihility of wetland areas y _on .o r ..._.--•--- - r-- - � -J located on the Subject Property as a characteristic of the natural environment. The Applicant has submitted a letter from the Department of State Lands (DSL), which makes clear that state permit will not be required for the proposed development and that the existing reservoir on the subject property is considered an 'artificially created wetland and pond' which is not jurisdictional' according to OAR 141-085-0515(6)(a-c). DSL further clarifies that the existing reservoir is an exempt feature pursuant to OAR 141-085-0515(7)(d). As noted above, the proposed development will observe all setback and height requirements and will be sited over 100 feet from the nearest property line. Public comments submitted into the record express concerns related to the visual and electromagnetic impacts related to the design and location of CEC's Distribution System. In response to these comments, the Applicant has modified its design for CEC's distribution system. As stated above, the Applicant proposes an underground power system, instead of overhead distribution lines. The Applicant will install a utility trench and conduits detailed on the attached Access Plan. CEC will then install its distribution lines within the utility trench. The Applicant will then backfill the trench, returning the area to natural grade and eliminating any permanent impact to the natural environment. This project does not pose any potential electromagnetic impacts... The proposed McKenzie Hydro and associated utility trench will not adversely impact the natural environment. The proposed power system has been designed to eliminate any visual impacts, although the Applicant notes that both the power system and power station are located east of the surrounding residentially zoned properties, while the Sisters Mountains and Broken Top Mountain are 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 36 of 69 located to the southwest, and Black Butte and MountJefferson to the northwest. The project will not adversely impact scenic views. Furthermore, the underground power system reduces the propensity for artificially created wildfire and eliminates any impact to nesting raptors which may potentially inhabit the Subject Property. The trench will be returned to natural grade, preserving natural topographic and visual features of the Subject Property. The design characteristics of the powerhouse are detailed on the Proposed Site Plan. The facility will have no impact on the scenic views referenced above, due to its location east off neighboring residential properties." The Hearings Officer finds the above -quoted Applicant statement to be credible. Based upon the evidence in the record, including the Applicant's above -quoted statement, the Hearings Officer finds that Applicant's proposed hydroelectric facility, including underground electric distribution system and parking/access areas relate harmoniously to the natural environment and existing development. The Hearings Officer finds that Applicant's proposed hydroelectric facility minimizes visual impacts to nearby/neighboring properties including the preservation of views and topographical features. The Hearings Officer finds this criterion is met. B. The landscape and existing topography shall be preserved to the greatest extent possible, considering development constraints and suitability of the landscape and topography. Preserved trees and shrubs shall be protected. FINDING: Applicant provided the following comments, in the Supplemental Burden of Proof (page Qv\ rnl�+ r1 *n this nnnrr%wn1 `ritorivnn• i dated w ancs "NAta "The Applicant proposes to remove 1-4 juniper trees to install the proposed hydroelectric facility. All trees around the location of the proposed power house are to be preserved as a visual buffer. The location of the underground power system is detailed on the attached Access Plan. The installation of the utility trench will constitute removal of material to a depth of 42" as detailed on the attached utility trench technical description. Once CEC installs its distribution lines, the trench will be backfilled to natural grade, eliminating any permanent impact to the landscape and existing topography. No trees and shrubs are to be impacted by the installation and backfilling of the utility trench." The Hearings Officer finds the above -quoted Applicant statement to be credible. The Hearings Officer finds that Applicant's proposed hydroelectric facility will preserve, to the greatest extent possible the suitability of the landscape and topography. The Hearings Officer finds this criterion is met. C. The site plan shall be designed to provide a safe environment, while offering appropriate opportunities for privacy and transition from public to private spaces. FINDING: Staff, in the Staff Report (page 32), provided the following comments related to this criterion: 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 37 of 69 "No safety concerns were raised by Cloverdale Fire Department or any other agency or individual notified during the agency comment period. Staff finds the proposed development will not impact the safety of the subject property or the ongoing operations associated with TSID for any foreseeable reason. Staff notes there are no public spaces on the subject property which would conflict with adjoining private spaces. The development will not be located in an area that will obstruct pedestrian or vehicle access and all required setback standards will be met. This criterion will be met." The Hearings Officer finds Staffs above -quoted comments to be credible and persuasive. The Hearings Officer finds this criterion will be met. D. When appropriate, the site plan shall provide for the special needs of handicapped persons, such as ramps for wheelchairs and Braille signs. FINDING: The Applicant indicated the proposed structure will be constructed at -grade and will include an attached ADA-compliant parking space and an access route between the ADA parking space and the new building. Any ADA requirements will be addressed by the Building Safety Division during building permit review. The Hearings Officer finds this criterion will be met. E. The location and number of points of access to the site, interior circulation patterns, separations between pedestrians and moving and parked vehicles, and the arrangement of parking areas in relation to buildings and structures shall be harmonious with proposed and neighboring buildings and structures. FINDING: The Hearings nffiror inrnrnnYatPC the finriinuC for nrr 1 R 11 h.n- fn(R(7) as additional findings for this criterion. The proposed hydroelectric facility, access aisle, and parking area will not affect any existing pedestrian pathways or the vehicular circulation, access, or parking layout of the existing subject property or surrounding properties. The Hearings Officer finds this criterion is met. F. Surface drainage systems shall be designed to prevent adverse impacts on neighboring properties, streets or surface and subsurface water quality. FINDING: The proposed development will have on -site surface drainage to the existing soil and vegetation areas around the project area. The application materials indicate that there is an abundance of undeveloped land surrounding the proposed project site, the presence of which significantly reduces the threat of surface drainage on neighboring properties, streets, or water quality. Staff, in the Staff Report (page 32) suggested that the Hearings Officer impose a Condition of Approval requiring the Applicant, prior to issuance of building permits, to provide certification by a licensed professional engineer that drainage facilities have been designed and constructed in accordance with the current Central Oregon Stormwater Manual to receive and/or transport at least the design storm (as defined in the current Central Oregon Stormwater Manual) for all surface drainage water, including stormwater coming to and/or passing through the development. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 38 of 69 The Hearings Officer finds that with Staffs recommended Condition of Approval this criterion can be met. G. Areas, structures and facilities for storage, machinery and equipment, services (mail, refuse, utility wires, and the like), loading and parking and similar accessory areas and structures shall be designed, located and buffered or screened to minimize adverse impacts on the site and neighboring properties. FINDING: Staff, in the Staff Report (page 33) provided the following comments related to this criterion: 'The Applicant proposes a new 30' by 39' hydroelectric facility building and associated parking area and service drive on the subject property. Staff finds that the most likely adverse impacts that could result from the proposed development would be visual impacts on neighboring properties. The applicant's submitted burden of proof statement indicates that the topography of the proposed project site allows for a substantial portion of the proposed structure to be buried underground, limiting visual impacts on the subject and surrounding properties. Additionally, the submitted application materials include color photographs of the site indicating that the proposed structure and parking area will be visually screened by the presence of juniper and vegetative groundcover on the site. The proposed project site is centrally located on the subject property, approximately 270 feet from the nearest property line. As stated in previous findings, the applicant has proposed to install overhead power distribution lines in association with the development. The l mitt d liCatinn m.Ler;n1r rin not indicate tho nrnnncorl Inrntinn nr dPcl n of sniff iuc Siiu�m«eu appn�ia�w�� ,��u�GIINIJ g•• , distribution lines. Staff defers to the Hearings Officer to determine whether the proposed development has been designed, located and buffered or screened to minimize adverse impacts on the site and neighboring properties." Applicant, in the Supplemental Burden of Proof (page 19) responded to Staffs comments as follows: "As previously discussed, the Applicant proposes an underground power system, which will house CEC's distribution lines. This system will eliminate any potential visual impacts relating to distribution lines. Once backfilled to natural grade, the trench location will be indistinguishable from the surrounding natural environment." The Hearings Officer finds Staffs above -quoted comments to be credible. However, the Hearings Officer also finds that Applicant's modification of proposal eliminating overhead electrical distribution lines and replacing them with underground (buried) lines adequately responds to Staffs expressed concerns. The Hearings Officer finds this criterion is met. H. All above -ground utility installations shall be located to minimize adverse visual impacts on the site and neighboring properties. FINDING: Applicant, in the Supplemental Burden of Proof (page 20) provided the following comments related to this criterion: 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 39 of 69 "The proposed power house will have minimal adverse visual impacts on the site and neighboring property. The proposed powerhouse constitutes approximately 0.08% of the total 97.60-acre Subject Property in terms of impact on the existing natural environment. It will be screened by existing vegetation and is centrally located on the site. Furthermore, it is located to the east of the neighboring residential properties, while the Sisters Mountains and Broken Top Mountain are located to the southwest, and Black Butte and MountJefferson to the northwest. The proposed power house will not impact neighboring properties scenic views. Regarding CEC's distribution lines, they will be house in the proposed utility trench which, once backfilled to natural grade, will be indistinguishable from the surrounding topography of the Subject Property." The Hearings Officer, based upon the evidence in the record, including the above -quoted Applicant comments, finds that this criterion is met. 1. Specific criteria are outlined for each zone and shall be a required part of the site plan (e.g. lot setbacks, etc.) FINDING: The Subject Property is within the Multiple Use Agricultural (MUA10) Zone, Exclusive Farm Use (EFU) Zone, and Flood Plain (FP) Zone. The Hearings Officer incorporates finding for DCC 18.16 (EFU zoning) and DCC 18.32 (MUA10) as additional findings for this criterion. The Hearings Officer finds that relevant criteria relating to DCC 18.18 and DCC 18.32 are not met. J. All exterior lighting shall be shielded so that direct light does not project off -site. FINDING: The Hearings Officer incorporates the findings for DCC 18.116.030(F)(2) as additional findings for this criterion. The Applicant proposed eight (8) wall -mounted lights, approximately 12 feet in height, as outdoor lighting. To ensure compliance, Staff, in the Staff Report (page 33) suggested that the Hearings Officer impose a Condition of Approval related to this criterion. The Hearings Officer finds that with Staffs recommended Condition of Approval this criterion can be met. X Transportation access to the site shall be adequate for the use. 1. Where applicable, issues including, but not limited to, sight distance, turn and acceleration/deceleration lanes, right-of-way, roadway surfacing and widening, and bicycle and pedestrian connections, shall be identified. Z Mitigation for transportation -related impacts shall be required. 3. Mitigation shall meet applicable County standards in DCC 1 Z 16 and DCC 17.48, applicable Oregon Department of Transportation (ODOT) mobility and access standards, and applicable American Association of State Highway and Transportation Officials (AASHTO) standards. FINDING: Applicant, in the Supplemental Burden of Proof (page 20) provided the following comments related to this criterion: 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 40 of 69 "The attached Access Plan delineates the location where the proposed service driveway will connect with Simmons Rd. The Applicant has submitted a revised site plan showing a minimum 24 foot width for the proposed service drive, and specifying the location of the fencing, rails, walls, or other barriers or markets used to mark and define the proposed service drive. Access to the Subject Property is adequate, as there is an existing two-way service driveway that complies with minimum standards and the transportation impact caused by this Application will be minimal with only 1-2 TSID employees to be onsite." The Hearings Officer incorporates the findings for DCC 18.116.030(F)(6) as additional findings for this criterion. The Hearings Officer finds that to assure the service drive is adequately delineated/marked the Hearings Officer finds Staffs recommended Condition of Approval is necessary. The Hearings Officer finds that with Staffs recommended Condition of Approval this criterion can be met. Section 18 124.070. Required Minimum Standards. B. Required Landscaped Areas. 1. The following landscape requirements are established for multi family, commercial and industrial developments, subject to site plan approval. a. A minimum of 15 percent of the lot area shall be landscaped. b. All areas subject to the final site plan and not otherwise improved shall be landscaped. FINDING: The Hearings Officer finds that Applicant's proposed hydroelectric facility is not to be considered a type of commercial or industrial development as defined in the above criteria. As such, the Hearings Officer finds that the above landscaping criteria do not applyto the subject application. 2. in addition to the requirement of DCC 18.124.070(B)(1)(a), the following landscape requirements shall apply to parking and loading areas: a. A parking or loading area shall be required to be improved with defined landscaped areas totaling no less than 25 square feet per parking space. b. in addition to the landscaping required by DCC I& 124.070(B)(2)(a), a parking or loading area shall be separated from any lot line adjacent to a roadway by a landscaped strip at least 10 feet in width, and from any other lot line by a landscaped strip at least five feet in width. C. A landscaped strip separating a parking or loading area from a street shall contain: 1) Trees spaced as appropriate to the species, not to exceed 35 feet apart on the average. 2) Low shrubs not to reach a height greater than three feet zero inches, spaced no more than eight feet apart on the average. 3) Vegetative ground cover. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 41 of 69 d. Landscaping in a parking or loading area shall be located in defined landscaped areas which are uniformly distributed throughout the parking or loading area. e. The landscaping in a parking area shall have a width of not less than five feet. f. Provision shall be made for watering planting areas where such care is required. g. Required landscaping shall be continuously maintained and kept alive and attractive. h. Maximum height of tree species shall be considered when planting under overhead utility lines. FINDING: Staff, in the Staff Report (page 35) provided the following comments related to these landscaping requirements: 'The applicant proposes to construct a new hydroelectric facility and associated parking area. Per DCC 18.124.070(B)(2)(a), the three (3) proposed parking spaces require a total of 75 square feet of landscaping (3 spaces x 25 square feet). The submitted application materials do not include a proposal for landscaping in association with the proposed parking area. As a result, staff adds a suggested Condition of Approval requiring the applicant, prior to the issuance of building permits, to submit a landscaping plan demonstrating the site's compliance with the above landscaping requirements." Applicant; in its Supplemental Burden of Proof (page 21) stated that "due to the large amount of existing vegetation, as well as the Applicant's ability to plant additional vegetation, it is feasible for the Applicant to meet this proposed Condition of Approval." The Hearings Officer finds that with Staffs recommended Condition of Approval this criterion can be met. C. Nonmotorized Access. 1. Bicycle Parking. The development shall provide the number and type of bicycle parking facilities as required in DCC 18.116.031 and 18.116.035. The location and design of bicycle parking facilities shall be indicated on the site plan. FINDING: The Hearings Officer incorporates the findings for DCC 18.116.031 as additional findings for this criterion. The Hearings Officer finds that no bicycle parking is required. 2. Pedestrian Access and Circulation: a. Internal pedestrian circulation shall be provided in new commercial, office and multi family residential developments through the clustering of buildings, construction of hard surface pedestrian walkways, and similar techniques. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 42 of 69 FINDING: The proposed hydroelectric facility is considered a utility facility and not a type of commercial, office or multi -family development as defined in the above criterion. As such, the Hearings Officer finds that the provisions of DCC 18.124.070(C)(2)(a) do not apply to the subject application. b. Pedestrian walkways shall connect building entrances to one another and from building entrances to public streets and existing or planned transit facilities. On -site walkways shall connect with walkways, sidewalks, bikeways, and other pedestrian or bicycle connections on adjacent properties planned or used for commercial, multi family, public or park use. FINDING: Staff, in the Staff Report (page 36), provided the following comments: "Staff finds that criteria (b) through (e) apply to any use subject to site plan review. The applicant did not show pedestrian walkways at the proposed facility. Staff follows the Hearings Officer decision in CU-14-7 where the Hearings Officer found that: ...these criteria have limited application to the applicants' proposal inasmuch as there is only one commercial use proposed for the subject property, and there will be a single building for that use. Therefore, I find there is no need to apply these criteria to require particular pedestrian circulation or walkways on the property.' c'r Ff FJJ that the nnnnt annktinn is cinilivr itht there JLJJ J111ULIIUL U1 /JJr6J611L Uppl—U-11J J/m-,naa�ingln building nrnnncin!l fnr te rr h facility on site. Additionally, staff notes that a single entrance will be supplied for the facility. No sidewalks, transit stops, or pedestrian access points exist along the Simmons Road or Holmes Road rights of way in the immediate vicinity. Based on the findings above, staff finds that no pedestrian walkways under these criteria are required." The Hearings Officer finds the above -quoted Staff comments to be credible and persuasive. The Hearings Officer finds, based upon this criterion, that no pedestrian walkways are required. C. Walkways shall be at least five feet in paved unobstructed width. Walkways which border parking spaces shall be at least seven feet wide unless concrete bumpers or curbing and landscaping or other similar improvements are provided which prevent parked vehicles from obstructing the walkway. Walkways shall be as direct as possible. FINDING: Applicant, in its Supplemental Burden of Proof (page 21) provided the following comments related to walkways: 'As detailed on the submitted site plan, the Applicant proposes an 8 x 20 walkway adjacent to the ADA parking space. This walkway leads to the doorway of the powerhouse." 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 43 of 69 The Hearings Officer finds Applicant's above -quoted statement to be credible and persuasive. The Hearings Officer finds Applicant's proposal (Proposed Site Plan - attached to Supplemental Burden of ProoJ) meets this criterion. d. Driveway crossings by walkways shall be minimized. Where the walkway system crosses driveways, parking areas and loading areas, the walkway must be clearly identifiable through the use of elevation changes, speed bumps, a different paving material or other similar method. FINDING: The site plan attached to the Supplemental Burden of Proof indicates that no walkways would be intersected by the proposed parking area or service drive. The Hearings Officer finds this criterion is met. e. To comply with the Americans with Disabilities Act, the primary building entrance and any walkway that connects a transit stop to building entrances shall have a maximum slope of five percent. Walkways up to eight percent slope are permitted, but are treated as ramps with special standards for railings and landings. FINDING: Applicant, in its Supplemental Burden of Proof (page 21) indicated that it was proposing an 8 x 20 walkway adjacent to the ADA parking space. This walkway leads to the doorway of the power house. The Hearings Officer finds that with a Condition of Approval requiring Applicant romplinre ".ith this rriteion the rriterinn ran be meta. D. FINDING: The proposed hydroelectric facility and associated parking area and driveway access is considered a utility facility, not a commercial structure or use. The Hearings Officer finds that the Commercial Development Standards outlined in DCC 18.124.070(D) do not apply to the subject application. Chapter 18.1.28. Conditional Use Section 18 128 015 General Standards Governing Conditional Uses. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 44 of 69 Except for those conditional uses permitting individual single-family dwellings, conditional uses shall comply with the following standards in addition to the standards of the zone in which the conditional use is located and any other applicable standards of the chapter. A. The site under consideration shall be determined to be suitable for the proposed use based on the following factors: 1. Site, design and operating characteristics of the use, FINDING: Site. The 97.60-acre Subject Property is developed with two (2) high density polyethylene ("HDPE") irrigation pipelines (42" and 18" in respective diameters) which serve approximately 2,000 irrigated acres of farmland within the boundaries of the Applicant's district. The interior of the Subject Property contains dirt and gravel driveways, and parking areas associated with TSID. The Subject Property currently supports an approximately 12-acre man-made water body referred to as the McKenzie Regulating Reservoir (McKenzie Reservoir). The location of the McKenzie Reservoir corresponds to the location of state -mapped wetland areas and areas of mapped Special Floodplain Hazard Area ("SFHA") on the Subject Property. The Subject Property has a vegetative cover of mature juniper trees, sagebrush, native groundcover, and other native vegetation. The property is irregular in shape and fronts on both Simmons Road and Holmes Road. The grade of the Subject Property is slightly lower in elevation in the eastern portion near the location of the McKenzie Reservoir, and slightly raised in the northwestern portion which is north of Holmes Road. The Hearings Officer finds the proposed location of the facility adjacent to McKenzie Reservoir and sting TSID nininR is ci iitnhla to the cite Gi irthor tho nrnnncorl fnrilit-w Inratinn aanornlly avnirlc existing Div NlNli ib .a .�unu". w 1. — J.�.t.. . w 1. —, h... r.. ,.. ....... ) b .. ..) the existing native vegetation on -site. Design. The proposed hydroelectric facility will be connected to the existing irrigation piping infrastructure and is intended to generate electricity on the Subject Property. The design includes a 1,736-square-foot building and tail race. In addition to the hydroelectric facility, the Applicant is also proposing to establish an associated parking area, complete with three (3) parking spaces, one of which is ADA-compliant. According to the Supplemental Burden of Proof (page 18), the proposed hydroelectric facility and parking area will be located in a 3,600 square -foot area in the central portion of the 97.60-acre Subject Property. Additionally, a gravel driveway will be established on the Subject Property, providing access from Simmons Road to the proposed hydroelectric facility. Given the location of McKenzie Reservoir and existing piping on the Subject Property the Hearings Officer finds that the facility's siting adjacent to the reservoir takes advantage of the existing topography for the purpose of hydroelectric generation and is appropriate for the proposed use. Operating Characteristics. According to the Applicant's Supplemental Burden of Proof statement, the operating characteristics of the proposed use include daily visits by TSID employees (1-2 employees total) to adjust flows to and from the reservoir and proposed facility for irrigation deliveries. The Applicant indicated in its Supplemental Burden of Proof and the 8/4/2020 Applicant/Sand Letter that the operating hours during which these employee visits occur would be 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 45 of 69 between 8:OOAM and 5:OOPM from March to November of each year. The limited traffic generated by the 1-2 employees and the limited scale of the proposed parking facilities will minimize impacts on the project site. The Hearings Officer takes notice of the 8/4/2020 Applicant/Sand Letter. The 8/4/2020 Applicant/Sand Letter addressed public concerns related to noise, lighting, vehicle access, pedestrian access, maintenance and construction and County enforcement that could/would arise if Applicant's hydroelectric proposal is approved. Noise. Desert Sand community members expressed concern that operation of the hydroelectric facility would create negative noise impacts for neighboring properties. Applicant, in the 8/4/2020 Applicant/Sand Letter, described an acoustical evaluation commissioned by Applicant to assess noise impacts created by operation of the hydroelectric facility. Applicant, in the 8/4/2020 Applicant/Sand Letter, indicated that the acoustical evaluation demonstrated that "the McKenzie Hydro will comply with OAR 340-035-0035s maximum daytime d8A limit of 55 d8A and maximum nighttime limit of 50 d8A." Applicant also, in the 81412020 Applicant/Sand Letter stated that it had "agreed to monitor sound levels of the McKenzie Hydro once a year, for a period of two years. The data from this monitoring will be made available to Desert Sand for review." The Hearings Officer could find no request in the record from the Applicant, Staff or other case participant to include as Conditions of Approval the Applicant's representations that it would (1) conduct two years of noise assessments and (2) report the noise assessment results to Desert Sand. The Hearings Offirar tharefnre� treats the Annlirant'C rPnrer.entatinn to Desert Sand, in the 8/4/2020 Applicant/Sand Letter, as a private agreement between Applicant and Desert Sand. The Hearings Officer notes that the operation by Applicant of the proposed hydroelectric facility is subject to state and local laws related to noise and that violation of those laws may constitute a Deschutes County Code violation. Visual Impacts. The Hearings Officer incorporates the findings for DCC 22.20.055 and DCC 18.124.060 A as additional findings for this criterion. Case participants, at and prior to the Hearing, expressed concerns related to visual impacts potentially created by the Applicant's proposed hydroelectric facility. Participants were especially concerned with the potential visual impacts that would result from the construction of an overhead electrical distribution system. Applicant, in its initial/first Burden of Proof statements (Burden of Proof Statement for Site 104, page 3), proposed an overhead electrical distribution system. Applicant, following concerns expressed by nearby neighbors, modified its proposal by replacing the overhead electrical distribution system with an underground electrical distribution system. The Hearings Officer finds that Applicant's modification (placing the electric distribution lines underground) eliminates visual impacts created by overhead power lines that existed in the Applicant's original proposal. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 46 of 69 The Applicant also addressed visual impacts created by the construction of the powerhouse. The Hearings Officer finds that with Applicant's proposed landscaping the visual impacts from the powerhouse will be minimal. Electromagnetic Current. The Hearings Officer incorporates the findings for DCC 18.124.060(A) as additional findings for this criterion. Neighborhood property owner O'Neill expressed concerns that electromagnetic current emissions from Applicant's proposed hydroelectric facility may cause health problems to nearby neighbors; particularly emissions from powerlines. Applicant provided the following response, in the Supplemental Burden of Proof (page 23), to concerns related to electromagnetic current: 'The proposed design change to an underground power system eliminates the potential for adverse health impacts caused by electromagnetic currents. As a preliminary matter, the National Cancer Institute has not found any association between non -ionizing electromagnetic fields ('EMFs) and adverse health impacts. Electromagnetic Fields and Cancer, National Cancer Institute, https•//www cancergov/about-cancer/causes-prevention/risk/radiation/electromagnetic fields sheet t- sheet (last visited Jul. 13, 2020). Power lines and electrical applicants that emit non -ionizing EMFs are present everywhere in homes and workplaces. EMFs in the non -ionizing part of the electromagnetic spectrum cannot damage DNA or cells directly. Id. Power lines emit 50-60 hertz (Hz) and are classified as extremely low frequency EMFs, similar to shavers, hair dryers, electrical wiring, and electric blankets. Id. The National Cancer Institute has not found an association between EMFs and adverse health impacts. Because of the findings made by the National Cancer Institute and the fact CEC's 4;i frih1 rhinn linnho hijriorl and AryriHillorl With 2n,,nf m toriryl Chic nrniPrt Will not rnij zP nrh1PYSP u1.xiINuuv1i n��c.� vv�l1 -1 ivu��a..0 � a........, �... �..�. health impacts relating to electromagnetic currents." The Hearings Officer finds the above -quoted Applicant comments to be credible and persuasive. The Hearings Officer finds that burying the electric distribution lines minimizes any potential health risks associated with electromagnetic current. Conclusion. The Hearings Officer finds the Applicant's proposed hydroelectric facility meets this criterion. 2. Adequacy of transportation access to the site, and FINDING: The Hearings Officer incorporates the findings for DCC 18.116.030(F)(6) and DCC 18.124.060(K) as additional findings for this criterion. The Deschutes County Senior Transportation Planner and Deschutes County Road Department did not identify any transportation access or infrastructure deficiencies associated with the proposal. The Hearings Officer finds this criterion can be met. 3. The natural and physical features of the site, including, but not limited to, general topography, natural hazards and natural resource values. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 47 of 69 FINDING: Staff, in the Staff Report (page 39) provided the following comments related to this criterion: Natural and physical features of the Subject Property are limited to the existing reservoir, natural vegetation cover, and topography associated with the physical site. The Subject Property is relatively level, with the existing reservoir being located in an area of lower elevation in the southern and eastern portions of the Subject Property. Aside from the reservoir, there are no other topographical constraints associated with the Subject Property. The Hearings Officer finds that the Subject Property has no natural resource values, other than what already exists regarding trees, natural vegetation, and the reservoir as a hydrologic resource. Based on the submitted application materials, staff finds that the establishment of the hydroelectric facility, overhead power distribution lines, and the parking area and driveway access will be the most significant impacts on natural and physical features associated with the site. The proposed hydroelectric facility and parking area will encroach into a naturally -landscaped area in the central portion of the subject property by an area of approximately 3,600 square feet. The proposed driveway access will impact approximately 18,000 square feet (20' width x approximately 900' length) of the natural landscaping of the subject property. Staff finds that the total area of natural and physical features that will be impacted by the proposal (including the driveway access) is approximately 0.50 acres. The portion of naturally -landscaped area that will be disturbed by the proposal on the subject property is approximately 0.5% of the property. In terms of natural hazards, the subject property is not susceptible to unusual natural hazards, except 1niith regard to Wildfiro nnrl flnnrfino, nfcnrilYtPr1 With the Pyktin rPcPninir, Wildfire iS' a county -wide pervasive natural hazard that affects the majority of Deschutes County. The Deschutes County Planning Division mailed notice of the subject application to the Cloverdale Fire Department and received no comment in response. The Floodplain provisions of DCC 18.96 apply to the subject application as the project site is located within the County's Floodplain (FP) Zone. The proposal complies with applicable FP criteria, reviewed in previous findings. The provisions of DCC 18.96 act to effectively mitigate flooding risks for identified structures and uses. Staff finds that, through the subject application's compliance with DCC 18.96, flooding risks are mitigated to the best extent possible on the proposed project site. Staff finds the proposal will not significantly increase wildfire or flood hazard in the project vicinity. As stated in previous findings, the submitted application materials do not indicate the location of the proposed service drive's connection to a road right-of-way nor do they indicate the location or design of proposed power distribution lines associated with the proposed development. Additionally, the US Fish and Wildlife Service has submitted a statement indicating that the subject property may contain nesting raptors and that surveying of the property for nesting birds and raptors should be conducted prior to construction. Staff adds a suggested condition of approval, prior to initiating construction and installation of any distribution power lines, the applicant shall survey for nesting raptors. Said survey shall be submitted to the Planning Division and US Fish and Wildlife Service for review. Staff defers to the Hearings Officer to determine whether the proposed use is suitable based on the natural and 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 48 of 69 physical features of the site, including, but not limited to, general topography, natural hazards and natural resource values." Applicant provided the following comments in response to Staffs comments quoted above: 'The Applicant agrees with, and incorporates by reference, the first two paragraphs of staff's finding on this standard, detailed on page 39 of the Staff Report. The Applicant has submitted a revised Access Plan, attached, which details the location of the proposed service driveway's connection to Simmons Rd. As discussed above, the Applicant modified the proposed design for the distribution lines, proposing an underground system located in a utility trench. The location and characteristics of the utility trench are detailed in the attached Access Plan and utility trench technical description. The proposed McKenzie Hydro and associated utility trench will not adversely impact the natural environment. The proposed power house will be screened by existing vegetation, lessening any potential visual impacts. The proposed power system has been designed to eliminate any visual impacts, although the Applicant notes that both the power system and power station are located to the east of surrounding residentially zoned properties, while the Sisters Mountains and Broken Top Mountain are located to the southwest, and Black Butte and MountJefferson to the northwest. This project will not adversely impact scenic views. The trench will be returned to natural grade, preserving natural topographic and visual features of the Subject Property. Furthermore, the underground power system reduces the propensity for artificially created wildfire and eliminates any impact to nesting raptors which may potentially inhabit the Subject Property. Due tths 'n`lsur.e;not necesaoiu-J16'U"1,aIays .y " The Hearings Officer finds Staffs comments quoted above raised important issues based on the information in the record at the time of issuance of the Staff Report. The Hearings Officer finds Applicant's above -quoted comments adequately respond to Staffs concerns. The Hearings Officer finds this criterion is met. B. The proposed use shall be compatible with existing and projected uses on surrounding properties based on the factors listed in DCC 18.128.015(A). FINDING: The Hearings Officer incorporates the findings for DCC 18.128.015(A)(1) as additional findings for this criterion. The Hearings Officer, once again, takes notice of the 8/4/2020 Applicant/Sand Letter. The Hearings Officer addressed the "noise" compatibility issue in the findings for DCC 18.128.015(A)(1). The Hearings Officer finds that Applicant and Desert Sand neighbors, in the 8/4/2020 Applicant/Sand Letter, generally reached agreement with respect to "lighting," "vehicle access," "pedestrian access," "maintenance/construction scheduling" and "landscaping" compatibility issues. The Hearings Officer highlights the following comments in the 8/4/2020 Applicant/Sand Letter: "Vehicle Access. Desert Sand and TSID have discussed access to the Subject Property, as well as exiting traffic impacts on Simmons Road, Scimitar Lane and Fadjur Lane. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 49 of 69 TSID has applied for gate permits with the Deschutes County Road Department to install two gates, one on Simmons Road east of Holmes Road and one on Scimitar Lane immediately south of the intersection with Simmons Road, to restrict vehicle access on Simmons Road. See Gate Permit No. 20- 002 and associated application documents, incorporated by reference herein. The Subject Property is located at the eastern terminus of Simmons Road. As detailed by the Road Department in the staff report for Gate Permit No. 20-002, TSID has recently made surface improvements to Simmons Road to improve access to their existing pipeline and reservoir; the improvements consisted of placing new aggregate surfacing, widening the road, and clearing roadside vegetation. Since those improvements have been made, Simmons Road has experienced an increase in traffic, Desert Sand residents have indicated to the Road Department that the increased traffic is caused by the perception that a recreational reservoir (McKenzie Reservoir), which was not visible prior to the road improvements, exits at the end of Simmons Road, the reservoir is not open to the public. Desert Sand have further indicated that with this increased traffic speeding, confrontations and other suspicious activity that negatively impacts the livability of their neighborhood have frequently occurred. TSID has an interest in providing better security for the current and proposed facilities on the Subject Property, while also addressing Desert Sand traffic concerns. To this end, TSID has undertaken and funded the application for Gate Permit No. 20-002 and will purchase and install the gate to be placed on Scimitar (footnote omitted -Simmons Road gate purchased by Eric and Michelle Connelly]. TSID and Desert Sand discussed designing landscaping and, or, installation of a berm to ensure traffic 1.,,,,#1,4 not efreiimi.ont tho ontoc Mr) made rloar that it mine hannv to hind the nnnlirntinn fnr gate VVUUpermits, as well as the purchase and installation of the gates themselves, but that landscaping and other improvements to the gates would be the responsibility of Desert Sand residents. In addition to the gate permits, TSID has agreed to use Simmons Road as the primary access route to the Subject Property. The District will also direct all contractors and consultants involved in the construction of the McKenzie Hydro to utilize Simmons for ingress and egress. During construction TSID will install a sign at the intersection of Holmes Road and Fadjur Lane to notify contractors to utilize Simmons Road for access of the Subject Property, Desert Sand acknowledges, however, that Scimitar lane is a public right-of-way and that TSID may utilize Scimitar for routine operation and maintenance of its exiting irrigation system located within Desert Sand. Desert Sand and TSID believe the actions taken by the District will be successful in resolving the exiting traffic concerns of Desert Sand, although the Parties agree that they will continue a dialog on this subject in order to address future issues which may arise." The Hearings Officer finds that if the gates, as noted in the above -quoted material are approved and installed most of the traffic related issues raised at the Hearing in opposition of the Applicant's proposal will be addressed. The Hearings Officer compliments the Applicant and Desert Sand representatives for making an effort to amicably reach an agreement with respect to many issues raised by opponents at the Hearing. As noted by the Hearings Officer in the findings for DCC 18.128.015(A)(1) the Hearings Officer concluded that the 8/4/2020 Applicant/Sand Letter is a private 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 50 of 69 agreement. The Hearings Officer, based upon the evidence in the record, finds that this criterion is met. C. These standards and any other standards of DCC 1 & 128 may be met by the imposition of conditions calculated to insure that the standard will be met. FINDING: The Applicant proposed the construction of a hydroelectric facility, subject to the provisions of DCC 18.128.260, which are reviewed in subsequent findings. Conditions of Approval will be imposed as necessary to ensure compliance with relevant criteria. Section 18.128.040. Specific Use Standards. A conditional use shall comply with the standards of the zone in which it is located and with the standards and conditions set forth in DCC 1&12&045 through DCC 1&128.370. FINDING: The use as proposed complies with the requirements of the MUA10 and FP Zones as discussed in previous findings. The Applicant is proposing a hydroelectric facility, subject to the provisions of DCC 18.128.260, which are reviewed in subsequent findings. Section 18.128.260. Hydroelectric Facilities. PRELIMINARY FINDING FOR DCC 18.128.260: Ato 1l alw"Ils%y - DCC 18.128,26011 1- ArnpllCant and rnl \/1/ offer-- different r1e 1_rti%related to this approval criterion. Applicant, in its Closing Argument (pages 3 & 4) stated the following: 'We now turn to the primary issues raised by COLW - namely the applicability of DCC 18.128.260. This Application presents the Hearings Officer with a fundamental interpretive decision regarding the applicability of DCC 18.128.260 relating to hydroelectric facilities. Applicant asserts that DCC 18.128.260 is not applicable to a conduit hydroelectric project for the reasons detailed below. We advocate for a commonsense reading of the DCC that recognizes the fundamental differences between a run of the river hydroelectric project that diverts water for the principal purpose of producing power versus a conduit hydroelectric project that simply uses the kinetic energy available from water that has already been diverted for irrigation purposes. By contrast, COLW advocates for a strained and literal interpretation of the DCC that would allow local land use law to upend more than a century of well -established water law in Oregon." Applicant's above -quoted argument distinguishes "run -of -the -river" hydroelectric projects from "conduit" hydroelectric projects. While the Hearings Officer appreciates a "run -of -the -river" project is very different from the "conduit" hydroelectric project proposed in this case, the Hearings Officer finds that DCC 18.128.260(A) applies to "any construction of, or modification to, hydroelectric facilities in zones where such facilities are permitted as a conditional use." (bolding and italics added by the Hearings Officer) The only question that needs be answered when determining if DCC 18.128.260 A applies is: Does the proposal involve the construction or expansion of a hydroelectric facilityin a zone where a hydroelectric facilityis permitted as a conditional use? It is clear to the Hearings 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 51 of 69 Officer that Applicant's proposal is for the construction of a hydroelectric facility in a zone where such use is allowed as a conditional use. DCC 18.128.260(A) makes no distinction between the type of hydroelectric facility proposed (i.e. "run -of -the -river" or "conduit"). DCC 18.128.260(A) applies the proposals to construct all types of hydroelectric facilities (allowed in a zone as a conditional use). Scope of Proposal. The Hearings Officer finds the scope of the proposal, in this case, is described and limited by Applicant's written requests (applications). Applicant, in each of its applications (lot of record, conditional use and site plan review) describes only the Subject Property. The Hearings Officer finds that Applicant's proposal does not describe any activities that will occur at the water diversion point (Whychus Creek) or along the transmission pipes (until they reach the Subject Property). The Hearings Officer finds Applicant's proposals do not request approval to modify Applicant's water rights (i.e. does not request that more water than currently allowed by its water rights will be diverted to the Subject Property). The Hearings Officer finds that Applicant's proposals relate solely to activities that will occur on the Subject Property. Interpretation of Where Applicable". DCC 18.128.260(A) requires that a hydroelectric proposal "meets each of the following criteria, where applicable." (italics added by Hearings Officer) The Hearings Officer refers to the Merriam -Webster Online Dictionary to provide direction in interpreting term "applicable." Merriam -Webster defines "applicable" as "capable of or suitable to be applied." Synonyms for "applicable" include "relevant," "material" and "germane." The Hearings Officer, therefore, finds that "applicable," in the context of DCC 18.128.260(A) means that each specific approval criterion is to be considered individually and that such criterion must be relevant, material and germane to Applicant's proposal. Interpretation of "Affected Stretch of the River". Applicant asserted that there is no "affected stretch of the river." COLW argued Ouly 28, 2020 open -record submission - page 14) that "all of Whychus Creek from the TSID diversion downstream to the confluence with the Deschutes River is the 'affected stretch of the river' for purposes of DCC 18.128.260(8)(5)(D". The phrase "Affected Stretch of the River" appears in five separate sections of DCC 18.128.260 [(A)(3), (A)(4), (A)(6), (A)(8) and (13)(5)(f]. The Hearings Officer finds that the term "river," as used in DCC 18.128.260 [(A)(3), (A)(4), (A)(6), (A)(8) and (13)(5)(f)] should be interpreted broadly to include all rivers, streams and creeks from which water is drawn to produce hydroelectric power. Neither the "Affected Stretch of the River" nor any term contained therein is defined in the DCC. The word "affected" is defined in the Merriam -Webster Online dictionary, in part, as: "to produce an effect upon, such as to produce a material influence upon..." The Hearings Officer finds, for the purposes of interpretation of "Affected Stretch of the River" (DCC 18.128.260 [(A)(3), (A)(4), (A)(6), (A)(8) and (13)(5)(0], that the term "affected" means that the proposal for a hydroelectric facility "produces an effect upon" a river (as interpreted above). The Hearings Officer, therefore, will review each relevant section of DCC 18.128.260 [(A)(3), (A)(4), (A)(6), (A)(8) and (13)(5)(f] separately to determine if the Applicant's proposal will produce a material effect/influence upon Whychus Creek. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 52 of 69 A. The criteria set forth below shall apply to any construction or expansion of, or other modification to, hydroelectric facilities in zones where such facilities are permitted as a conditional use. A conditional use permit may be granted for the construction or expansion of, or other modification to, a hydroelectric facility only upon findings by the Planning Director or Hearings Body that the proposal meets each of the following criteria, where applicable. The facility is located at and physically connected to an existing man-made diversion or impoundment. FINDING: Staff provided the following findings in the Staff Report (page 42): "The applicant's submitted burden of proof statement indicates that the proposed facility will be located at the end of an existing irrigation pipeline and associated penstock. The pipeline and penstock are considered man-made diversions or impoundments, based on the above criterion. The applicant goes on to state that the existing pipeline and penstock delivers water from an existing man-made diversion, in compliance with the above criterion. Based on the relevant application materials, including the applicant's burden of proof statement, it is unclear to staff whether the applicant has met the above criterion. Staff defers to the Hearings Officer to determine whether the above criterion is met." The Hearings Officer finds Applicant's proposed facility on the Subject Property is not located "at" a Whychus Creek diversion point. The Hearings Officer does, however, find that Applicant's proposed hydroelectric facility will be physically connected to an existing man-made water diversion pipeline .,.d ;.v.r Ir, 4J pnt /KArVnn-An Roconinir) Tho Nonrinac r)ffirar finrlc that tho farilit-v is not InratPri at and II I I JJ%JU11%A111C1 IL kiv I.I\1.1 I- I-- -, /. I t t� . .�..M. . .b., v... �.... ... •..+v .. 1-1 -..-. ....-... -J .-. ..-._ .-.----- --_ a diversion or impoundment and therefore the Hearings Officer finds this criterion is not applicable (see findings for "Where Applicable" above). 2. The facility will not increase the maximum surface area or capacity of the impoundment created by the existing dam or diversion to which the facility will be connected. FINDING: Applicant, in its Supplemental Burden of Proof (page 27) stated the following: "The proposed facility will not increase the maximum surface area or capacity of the existing impoundment at McKenzie Reservoir, nor will it increase the capacity of the existing diversion from Whychus Creek. No additional water is proposed to be diverted to or impounded in the re -regulating reservoir, the proposed facility simply makes hydropower use of the pressurized water already flowing in TSID's irrigation pipeline system. There is no dam associated with McKenzie Reservoir, water flows out of an outlet at the reservoir's easternmost point into an underground pipe that runs down McKenzie Canyon to the Lower Bridge area." The Hearings Officer takes this opportunity to point out what should be obvious to any reader of this decision. The Applicant possesses certain State of Oregon granted water rights. This decision cannot legally increase, decrease or modify Applicant's Whychus Creek water rights. Whether the Hearings Officer approves or denies this application the Applicant's water rights will remain the same. If the 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 53 of 69 Applicant desires to use the maximum water allowed under the State of Oregon granted water rights it may legally do so. The amount of water that the Applicant can divert from Whychus Creek will be the same irrespective of an approval or denial of these applications in this case. COLW, in its July 28, 2020 submission (page 23) provided the following comments related to Applicant's diversion of water from Whychus Creek: "The applicant has particular incentive to divert water for hydroelectricity since their water right has a rate (measured in cubic feet per second) but no duty (the maximum volume of water that can be delivered to patrons in an irrigation season.) This allows TSID to divert water at any time of the year without the need to rationalize its use. TSID has already made claims elsewhere that it plans to divert water at times after October and before April for the purposes of stock runs and potential new crops, [footnote omitted] and nothing will stop it from doing so for hydroelectricity production as well." The Hearings Officer agrees with COLW that the State of Oregon granted water rights to Applicant. The Hearings Officer finds the State of Oregon granted water rights controls and limits the amount of water the Applicant may divert from Whychus Creek. The Hearings Officer takes note that Applicant's diversion point on Whychus Creek is approximately ten miles of pipeline distant from the McKenzie Reservoir. The Hearings Officer also takes note that there is a reservoir and hydroelectric facility (Watson Reservoir & Hydroelectric Facility) located between the diversion point and the proposed McKenzie hydroelectric facility. The Hearings Officer finds that if the existence of a hydroelectric facility creates an incentive for Applicant to divert more water from Whychus Creek that incentive would be stronger for the intervening Watson hydroelectric facility (700 kw turbine) rather than the do nstream /downnino Qon LnA/ ti whino nrnnncorl UrVan7io facility IAVVVI IJ I.I cQl1 it%AVvvl itill./l- — 1wv 1-1 --N. .. �.............. ...... ........ .J. The Hearings Officer finds this criterion is not applicable (see findings for "Where Applicable" above) because Applicant's proposal does not increase the maximum surface area or capacity of any impoundment created by an existing dam or diversion which the proposed hydroelectric facility will be connected. 3. The facility will maintain or enhance to the greatest extent possible the existing scenic, visual, environmental and aesthetic qualities of the affected stretch of the river. FINDING: This approval criterion includes the qualifying language "affected stretch of the river." The Hearings Officer incorporates the findings for PRELIMINARY FINDING FOR DCC 18.128.260 and DCC 18.128.260(A)(2) as additional findings for this criterion. The Hearings Officer's interpretation of "affected," as used in DCC 18.128.260, means that the proposal for a hydroelectric facility 'produces an effect upon' a river. The Hearings Officer included creeks within the DCC 18.128.260 definition of "river." The Hearings Officer, in the PRELIMINARYFINDINGS FOR DC 18.128.260, found that Applicant's proposal in this case relates solely to activities occurring on the Subject Property. The Hearings Officer, in the findings for DCC 18.128.260(A)(2) above found that Applicant's proposal would not result in more water being diverted from Whychus Creek than is permitted by Applicant's State of Oregon water 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 54 of 69 rights. The Hearings Officer finds that the Subject Property is located approximately 10 miles from the Whychus Creek diversion point and approximately 2.4 miles, as the crow flies, from Whychus Creek, The Hearings Officer finds that Applicant's proposal will not produce any impacts upon the scenic, visual, environmental or aesthetic qualities of Whychus Creek. The Hearings Officer finds, for the purposes of this approval criterion, that there is no "affected stretch of the river" related to Applicant's proposal. The Hearings Officer finds this approval criterion is not applicable to Applicant's proposal. If it is later determined by a review body that the Hearings Officer's interpretation of "affected stretch of the river" is not correct then the Hearings Officer finds in the alternative that Applicant's proposed facility will maintain, to the greatest extent possible, the existing scenic, visual, environmental and aesthetic qualities of Whychus Creek. The Hearings Officer makes this alternative finding based upon evidence in the record that Applicant's proposed hydroelectric facility will not be visible (related to scenic, visual and aesthetic evaluation factors) from Whychus Creek and that the amount of water diverted will be the same whether or not these applications are approved or denied (the amount of water flowing in Whychus Creek will not be impacted by approval of Applicant's proposed hydroelectric facility). 4. The facility will maintain or enhance the existing recreational opportunities on or adjacent to the affected stretch of the river. FINDING: This approval criterion includes the qualifying language "affected stretch of the river." The Hearings Officer incorporates the finuling� fnr PPFI1MINARYFINDIAIG FOR Dr-r- 18 12R ?o;n as additional findings for this criterion. The Hearings Officer also incorporates the findings for DCC 18.128.260(A)(2) as additional findings for this criterion. The Hearings Officer finds, for the purposes of this approval criterion, that there is no "affected stretch of the river" related to Applicant's proposal. The Hearings Officer finds this approval criterion is not applicable to Applicant's proposal. If it is later determined by a review body that the Hearings Officer's interpretation of "affected stretch of the river" is not correct then the Hearings Officer finds in the alternative that Applicant's proposed facility will maintain the existing recreational opportunities on or adjacent to Whychus Creek. The Hearings Officer finds that Applicant's proposal will have no impact to existing recreational opportunities on or adjacent to Whychus Creek. 5. The facility will maintain or enhance existing fish and wildlife habitat and will have no adverse impact upon any threatened or endangered fish, wildlife or plant species or their habitat. FINDING: The Hearings Officer incorporates the findings for PRELIMINARY FINDING FOR DCC 18.128.260 as additional findings for this criterion. The Hearings Officer also incorporates the findings for DCC 18.128.260 (A)(2) and (A)(3) as additional findings for this criterion. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 55 of 69 This approval criterion does not include the "affected stretch of the river" language. This criterion requires the Applicant's proposed facility to "maintain" or "enhance" existing fish and wildlife habitat. In addition, the Applicant must demonstrate that the proposed facility will have no adverse impact upon any threatened or endangered fish, wildlife or plant species or their habitat. As described in the PRELIMINARYFINDINGS FOR DCC 18.128.260 the proposal in this case is to construct a hydroelectric facility at the Subject Property. The hydroelectric facility will utilize water diverted from a Whychus Creek diversion point located approximately 10 pipeline miles away. The water diversion point includes a fish screen restricting access of fish into the pipeline accessing the Subject Property and the proposed hydroelectric facility. Applicant's proposal is to utilize its existing water rights to supply the McKenzie hydroelectric facility. Applicant represented it would use the same water that is currently diverted from Whychus Creek that supplies water to the Watson hydroelectric facility (located relatively close to the diversion point) and the districts irrigation needs. COLW, in part, argues this approval criterion is not met because Applicant did not "propose new actions that would maintain or enhance fish and wildlife habitat..." and "the proposed hydroelectric facility creates a new obligation to provide new maintenance or enhancement to fish and wildlife habitat pursuant to DCC 18.128.260(A)(5)" Quly 28, 2020 open -record submission, page 20). COLW also stated, in the July 28, 2020 open -record submission (page 2) that "unfortunately, and as explained in '8.DCC 18.128.260 Hydroelectric Facilities' below, the current application provides no benefits to habitat in Whychus Creek and instead continues or worsens the applicant's ongoing impacts to Whychus Creek." The Hearings Officer finds COLW misapplies and/or misinterprets the "maintain or enhance" and "maintain" language contained in DCC 18.128.260 [(A)(3), (A)(4), (A)(6) and (A)(8)]. When the phrase "maintain or enhance" language is used it means that the Applicant must provide evidence that the specified factor or element must either be "maintained" or "enhanced." "Maintain or enhance" does not mean that an Applicant must provide or demonstrate a benefit or enhancement results from an applicant's proposal. The "maintain or enhance" language gives an Applicant a choice to demonstrate that the specific factor or element is either maintained or is enhanced. The term "maintain" is not defined in the DCC. The Merriam -Webster Online Dictionary definition of "maintain" is "to keep in an existing state." The Hearings Officer finds that the word "maintain", as used DCC 18.128.260, means to retain or keep a specified factor or element (i.e. view qualities, recreational opportunities, water quality, public access and public access) the same. The Hearings Officer finds that the DCC 18.128.260 term "maintain" also carries with it the concept that impacts from a proposed project will not degrade or diminish the specified factor or element. Peter Lickwar (United States Fish & Wildlife Service) submitted the following agency comment in response to the above criterion: "Based on previous experience with TSID regarding their existing hydro, I anticipate that this will be a low impact project. The Whychus Creek diversion that will supply flow to the hydro is fully screened. The project site is probably an area that has already been disturbed by previous 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 56 of 69 activity. There may be some additional power lines that could be an avian hazard. We can have them survey for nesting raptors in the vicinity to be sure there is no disruption of nesting birds." Applicant, in its Supplemental Burden of Proof, (page 5) stated the following: 'Applicant also has modified the design to eliminate the overhead wires to were objected to ... The design change will further reduce this project's impact on the natural environment...An underground power system does not pose an avian hazard and limits any impact to the natural and physical features of the site, including natural resource values." The Hearings Officer finds that burying power lines will eliminate any impacts on avian and other wildlife habitat. COLW suggested that Applicant's proposed hydroelectric project would reduce water flow within Whychus Creek which would create adverse impacts for threatened or endangered fish. As already discussed in the findings above the Hearings Officer concluded that Applicant is the holder of various State of Oregon water rights and that water is used to supply the Watson hydroelectric facility, the Watson Reservoir, the McKenzie Reservoir and irrigated farms. The Hearings Officer found Applicant will use water already appropriated to other uses to operate the Applicant's proposed hydroelectric facility. The Hearings Officer finds no substantial evidence in the record to support COLW's claim that Applicant would divert more water from Whychus Creek which would result in lower water flows in %Alk%ich, is r'roeU Tho "onrinac ()ffiror finric that Annlirant'c nrnnncar) hvrirnalartrir farilihi at tha Subject Property, will use water already flowing to the Watson hydro facility and used to satisfy Applicant's irrigation obligations. The Hearings Officer finds Applicant's proposal will not result in water diversion from Whychus Creek that exceeds what it is currently legally authorized to appropriate. Therefore, the Hearings Officer finds COLW's "adverse impacts upon fish" argument is not persuasive. The Hearings Officer finds, to the extent applicable, this criterion is met. 6. The facility and its operation will maintain or enhance existing water quality in the affected stretch of the river except during construction of the facility when adverse impacts on water quality will be minimized. Specifically, the facility and its operation will not. a. Deposit or create a zone for the deposit of sediments in the river at or adjacent to the site, b. Increase the temperature of the river in the affected stretch by any means, including but not limited to removal of vegetation or reduction in stream/low, or C. Create the potential for or result in spillage, leakage or discharge of oil, waste products, chemicals or other substances which could reach the river. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 57 of 69 FINDING: The Hearings Officer incorporates the findings for PRELIMINARY FINDING FOR DCC 18.128.260 as additional findings for this criterion. The Hearings Officer also incorporates the findings for DCC 18.128.260(A)(2) and (A)(3) as additional findings for this criterion. Staff, in the Staff Report (page 44), stated the following: 'The submitted application materials include a burden of proof statement, containing the following statement related to the above criterion: "There will be no construction or disturbance of Whychus Creek as a result of construction of the proposed facility. Therefore, there will be no deposit of sediments, removal of vegetation, or spillage or any substance resulting from construction of the facility." The Hearings Officer finds Applicant's proposed hydroelectric facility is located a significant distance from Whychus Creek and will not divert additional water from Whychus Creek. The Hearings Officer finds Applicant's proposed hydroelectric facility will not produce an affect upon the water quality in Whychus Creek. The Hearings Officer finds, to the extent applicable, this criterion is met. Z The facility and its operation will not increase soil or bank erosion or destroy bank habitat at or on land adjacent to the site except during construction of the facility, during which time soil or bank erosion and destruction of bank habitat will be minimized. FINDING: The submitted nnnliCaantinn materials inch jdo a hiNrrrien of prnnf ctatement� rnntaining the following statement related to the above criterion: "There will be no soil or bank erosion at any time before, during or after construction of the facility as it is over 10 miles from any natural streamflow." Staff, in the Staff Report (page 44) stated the following: "Despite the above statement, spatial analysis performed by the Planning Division indicates that the proposed development will be located approximately 2.4 miles from the nearest reach of Whychus Creek, not 10 miles. Staff finds that, based on the submitted application materials, the applicant has not addressed the above criterion with enough specificity for staff to make a determination. Staff defers to the Hearings Officer to determine whether the above criterion is met." The Hearings Officer finds the Subject Property is not on or adjacent to any river (creek) bank that will be exposed to soil erosion. The Hearings Officer finds water to operate the Applicant's proposed hydroelectric facility arrives to the Subject Property, crosses the Subject Property, enters and exits the hydroelectric facility and exits either via a pipe, penstock or tailrace; none of which have natural material banks. The Hearings Officer finds that Applicant's proposed hydroelectric facility will not increase soil or bank erosion or destroy bank habitat at or on land adjacent to the Subject Property. The Hearings Officer finds this criterion is met. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 58 of 69 8. The facility and its operation will maintain existing public access to the affected stretch of the river. FINDING: The Hearings Officer incorporates the findings for PRELIMINARYFINDING FOR DCC 18.128.260 as additional findings for this criterion. The Hearings Officer also incorporates the findings for DCC 18.128.260(A)(2) and (A)(3) as additional findings for this criterion. The Applicant's submitted Supplemental Burden of Proof (page 30) stated: "This criterion is met, to the extent it is applicable... The only nexus the facility has with Whychus Creek is TSID's POD, and the Applicant is seeking no change in the diversion's design or operation." The Hearings Officer finds the Subject Property does not border Whychus Creek. The Hearings Officer agrees with Applicant's above -quoted statement that Applicant does have a "point of diversion" of water on Whychus Creek and that such diversion provides water to the proposed hydroelectric facility. The Hearings Officer finds that the Applicant's proposed hydroelectric facility will not change or have any impact on public access to Whychus Creek. The Hearings Officer finds, to the extent applicable, this criterion is met. 9. The facility will not be located at or immediately adjacent to any identified archaeological or historical site, national or state park, wildlife refuge, Bureau of Land Management Outstanding Natural Area or Area of Critical Environmental Concern, Federal Research Natural Area or U. S. Forest Service Special Interest Area. FINDING: Staff, in the Staff Report (pages 45 & 46), responded to this criterion as follows: "Based on staffs review of surrounding properties, staff finds that there are no identified archaeological or historical sites, national or state parks, wildlife refuges, Federal Research Natural Areas, or U.S. Forest Service Special Interest Areas located at or immediately adjacent to the proposed facility location. Additionally, the Planning Division mailed notice of the subject application to the BLM - Prineville office on March 11 th, 2020 and received no comments related to BLM Outstanding Natural Areas or Areas of Critical Environmental Concern associated with the proposal, subject property, or surrounding properties. The submitted application materials include a letter from the Oregon State Historic Preservation Office stating that the applicant has completed natural resource concurrence and NEPA requirements associated with the project site and proposed development. Staff finds that the proposed facility and parking area will not be located at or immediately adjacent to any of the resources identified above. As stated in previous findings, the submitted application materials do not indicate the location of the proposed service drive's connection to a road right-of-way nor do they indicate the location or design of proposed overhead power distribution lines associated with the proposed development. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 59 of 69 Without knowing the location and design of the service drive and overhead distribution lines, staff cannot make a determination of whether the proposed development avoids the above -mentioned resources. Staff defers to the Hearings Officer to determine whether the proposed use complies with the above criterion." Applicant responded to Staffs above -quoted comments, in its Supplemental Burden of Proof (page 30), as follows: 'This criterion is now met.. The Staff Report also identified the need for additional information related to the location and design of the service drive and the location and design of the proposed overhead power distribution lines. As stated previously, the Applicant has submitted a revised Access Plan delineating the location of the service drive's connection to the east terminus of Simmons Rd. The Applicant has also proposed a design change for underground distribution lines. The location of the underground distribution lines is detailed on the attached Access Plan. Because the service drive has exited onsite since 1957, there will be no new impacts as it relates to this aspect of the project. The Applicant has submitted a letter from the Oregon State Historic Preservation Office stating that the Applicant has completed natural resource concurrence and NEPA requirements associated with the project site and proposed development." The Hearings Officer concurs with Applicant's above -quoted statement. The Hearings Officer finds that this criterion is met. 10. The facility will not be located on any stretch of the river that is being studied or recommended for inCl!!sion in either the Federal Wild and .Scenic Rivers Program or the State Scenic Waterways Program, unless location of the facility at that site would not preclude inclusion of the stretch in the state or federal program. FINDING: The proposed hydroelectric facility will be sited on property located at 18150 Simmons Road, Sisters, OR 97759, which is located approximately 2.4 miles from the nearest stretch of Whychus Creek. The Hearings Officer finds that because the proposed facility will not be located on any stretch of river, the proposal complies with the above criterion. 11. The facility and its operation will comply with all applicable noise, water quality and pollution regulations of the Oregon Department of Environmental Quality. FINDING: The Applicant's submitted original Burden of Proof statement and Supplemental Burden of Proof statement indicate that the proposed hydroelectric facility will comply with all applicable DEQ requirements. To ensure compliance, Staff, in the Staff Report (page 46) suggested a Condition of Approval. Applicant, in its Supplemental Burden of Proof concurred with Staffs recommendation that this approval criterion be added as a Condition of Approval. Numerous comments were submitted by persons residing in close proximity to the Subject Property. A number of these persons expressed concern that noise emanating from the hydroelectric facility 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 60 of 69 could cause negative impacts to their properties. Applicant and residents submitted the 8/4/2020 Applicant/Sand Letter. The 8/4/2020 Applicant/Sand Letter stated, in part, the following: "TSID believes the design of the McKenzie Hydro and the results of the acoustical evaluation indicate that the McKenzie Hydro will comply with OAR 340-035-0035s maximum daytime dBA limit of 55 dBA and maximum nighttime limit of 50 dBA. Desert Sand does not dispute this finding; however, the Community requires assurances that once built, the McKenzie Hydro will comply with all applicable noise standards. To provide certainty to Desert Sand, TSID has agreed to monitor sound levels of the McKenzie Hydro once a year, for a period of two years. The data from this monitoring will be made available to Desert Sand for review." The Hearings Officer finds, based upon evidence in the record of this case, that Applicant has met the requirements of this criterion. The Hearings Officer finds that the agreement between the Applicant and Desert Sand residents is a private agreement and not one which should be made a condition of approval requiring County enforcement. 12. The facility and its operation will comply with all applicable state and local fill -and -removal statutes and regulations. FINDING: Staff, in the Staff Report (page 46), provided the following comments related to this approval criterion: 'The Deschutes County Planning Division requested comment from Department of State Lands related 1-., fill ivnrl rmm-vivl ^nri nrni nthor fnrocoonhlo imnnrtc rolntorl to mivnnorl inmtlnnrlc nrt thO c/1hiOrt lv JuiJu-i GII /VVU1 t�.,v —Y v 1„ 1 J.., �.a�.a.U— .............. L... ....,.l..l....... .... �...,....... .... ..... ...... J--. property during the prior notice period for the subject applications. The comment submitted by Department of State Lands states that it is unlikely that jurisdictional wetlands or waterways are located on the subject property and that a state permit would not be required for the proposal as it was determined that the project avoids impacts to jurisdictional wetlands, waterways, or other waters. As such, the conditional use provisions of DCC 18.128.270 do not apply to the subject application. Similarly, the proposed development will not be located within the bed and banks of a stream or river as specified in DCC 18.96.040(F). To ensure compliance, the above criterion has been added as a suggested Condition of Approval." Applicant, in its Supplemental Burden of Proof, responded to the above -quoted Staff comments as follows: 'The Staff Report findings on this criterion establish that the proposal will not impact jurisdictional wetlands or waterways such that a state fill -and -removal permit would be required, and the development is not located within the bed and banks of a stream or river such that the County's fill -and - removal provisions would be implicated. Therefore, there are no applicable state and local fill -and - removal statutes and regulations with which the facility and its operation must comply, yet the Staff Report suggests including the above criterion as a Condition of Approval 'to ensure compliance.' The above -criterion is inapplicable, or else it is met." 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 61 of 69 The Hearings Officer reviewed the Wetland Land Use Notice Response, dated March 26, 2020. The Wetland Land Use Notice Response stated, in part, the following: "Based on a review of the available information, including a DSL email on january 10, 2018, the reservoir is exempt per OAR 141-085-0515(7). This determination is based on information that the reservoir does not have a direct flow connection to the river. The wetland along the edge of the reservoir is exempt per OAR 141-085-0515(6). Therefore, a state permit will not be required for the proposed construction. This is a preliminary jurisdictional determination and is advisory only.- (bolding in original document) The Hearings Officer also notes that the Wetland Land Use Notice Response checked a box indicating that "a Federal permit may be required by the Army Corps of Engineers." The Hearings Officer finds, as of the date of the decision, that it appears all state and local fill -and -removal statutes and regulations determinations were "preliminary." The Hearings Officer finds this approval criteria uses the phrase "will comply." The Hearings Officer finds that the combination of the preliminary nature of the Oregon Division of State lands letter and the "will comply" language of the approval criterion a Condition of Approval (as recommended by Staff is necessary. The Hearings Officer finds that with Staffs recommended Condition of Approval this criterion can be met. B. The applicant for a conditional use permit for a hydroelectric facility, in addition to all other requirements, shall submit the following for approval. 1. Detailed construction plans and profiles of all facility features including building elevations of the powerhouse and other structures, excavation plans, a narrative describing where blasting will occur and where excess material will he deposited, and landscaping and reclamation plans. 2. Detailed plans for meeting the criteria set forth in DCC 18.128.260(8)(1). FINDING: The application materials submitted on behalf of the proposed development include construction plans and profiles of the proposed hydroelectric facility and associated parking area, including elevations of the structure and all associated equipment. The Applicant's initial application submissions and Supplemental Burden of Proof include statements indicating that excavation proposed in association with the construction of the facility will be minimal as the facility will be located at the bottom of the existing piped and excavated canal. No blasting or removal of excess material is proposed in association with the subject proposal. The Applicant provided, with the Supplemental Burden of Proof, a revised site plan. Applicant submitted a series of color photographs to illustrate the landscaping on the Subject Property and surrounding the specific project site for the proposed development. The Applicant's record submissions indicate that the reclamation around the proposed facility and parking area will involve the placement of 3/4 -minus gravel on areas disturbed during construction activities. The Hearings Officer finds Applicant satisfied the requirements of DCC 18.128.260(B)(1) and (13)(2). 3. Detailed plans for river enhancement documenting both on -site and off -site enhancement plans consistent with adopted river -related goals and policies, such as plans and methods for conserving water and enhancing stream flows. The plan shall identify costs, time schedules and coordination activities with affected persons and agencies for such enhancement plans. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 62 of 69 FINDING: The Hearings Officer incorporates the findings for PRELIMINARY FINDING FOR DCC 18.128.260 as additional findings for this criterion. The Hearings Officer also incorporates the findings for DCC 18.128.260(A)(2), (A)(3) and (A)(5) as additional findings for this criterion. The Hearings Officer, as previously stated, acknowledged that water is diverted from Whychus Creek to the Subject Property and the proposed hydroelectric facility. The Hearings Officer also found that the term "river" used in DCC 18.128.260 should be interpreted broadly to include rivers, streams and creeks. Additionally, the Hearings Officer found that Applicant possesses State of Oregon water rights and that the water diverted from Whychus Creek by Applicant is currently used by the Watson hydroelectric facility, Watson Reservoir, McKenzie Reservoir and authorized irrigated farms. The Hearings Officer previously found that the Applicant has the right to divert water pursuant to its State of Oregon water rights and that the amount of water diverted is controlled by those water rights. The Hearings Officer found that the amount of water that Applicant has the legal right to divert is not impacted by approval or denial of the current Applicant proposal to construct a hydroelectric facility on the Subject Property. The Hearings Officer found that Whychus Creek stream flows will not be impacted by approval or denial of Applicant's proposed hydroelectric facility. The Hearings Officer appreciates that this criterion must be considered but questions the applicability to the project being proposed. The Hearings Officer, in the findings for DCC 18.128.260(A)(5), considered the phrase "maintain or enhance." The Hearings Officer determined, in the findings for DCC 18.128.260(A)(5), that the phrase "maintain or enhance" grants an applicant a choice; either "maintain" or "enhance." The Hearings Officer found that for DCC 18.128.260(A)(3), (A)(4), (A)(5) and (A)(A) thin rritaria %Arara mat harm iqa Anrnr lirant rhnsa the "maintan" anri not "enhance " ontinn. %, ./% , _ ...--------- • .- -. - -- -.- ..._...-...-..-..-- ---- --- -r -- The Hearings Officer finds that the DCC 18.128.260(B)(3) reference to "enhancement'' is tied to requirements set forth in DCC 18.182.260 A. The Hearings Officer, in the findings for DCC 18.128.260(A)(3), (A)(4), (A)(5) and (A)(6), concluded Applicant was not required to "enhance" anything. No participant to this case identified a specific code section to support a requirement that the Applicant submit an "enhancement plan." The Hearings Officer finds that based upon the facts of this case Applicant is not required to provide an "enhancement plan." The Hearings Officer finds this approval criterion is not applicable to Applicant's proposed hydroelectric facility on the Subject Property. 4. A cash deposit, performance bond or other security acceptable to Deschutes County in an amount equal to 100 percent of the estimated cost of river enhancement. FINDING: The Hearings Officer incorporates the findings for DCC 18.128.260(B)(3) as additional findings for this approval criterion. The Hearings Officer finds this criterion is not applicable to Applicant's proposed hydroelectric facility on the Subject Property. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 63 of 69 S. Detailed plans for a water conservation and stream enhancement program to be funded by a portion of revenues generated by the operation of the proposed facility. FINDING: The Hearings Officer incorporates the findings for DCC 18.128.260(B)(3) as additional findings for this approval criterion. Applicant's Initial Burden of Proof statement included the following comments related to the above criterion: 'Applicant has spent over 20 years restoring stream flow to Whychus Creek with numerous piping conservation projects. The construction of these conservation projects has brought millions of dollars into the local economy creating full-time construction jobs and supporting numerous local suppliers in difficult economic times. Restoring stream flow to Whychus Creek has created an environment that will help insure that the current anadromous reintroduction of listed Steelhead and salmon will be a success." Applicant's Supplemental Burden of Proof (page 34) included the following statement: "net revenues are anticipated to cover only the CWLRLF loan payments, CEC's wheeling charges, and the hydroelectric facility's construction and operating expenses, with no net income for the first 20 years." The Hearings Officer finds, based upon Applicant's representation quoted immediately above, that no revenue can be expected to be expended on water conservation and stream enhancement programs (for the first 20 years). The Hearings Officer, as noted in the findings for DCC 18.128.260(B)(3), finds -0 — i— r nconi tinn nr c'tream cnhan`cmcnt is rCl9UIYP!'i fllY QnnilranYc nYlln(1cPl1 h\/('iYl1PIPftYlf project. The Hearings Officer finds the portion of this criterion related to water conservation and stream "enhancement" programs are not applicable to Applicant's proposed hydroelectric facility. The Hearings Officer finds Applicant's representation that revenue from the sale of electricity from the proposed hydroelectric facility will pay for construction and operating expenses, loan repayments (for previously completed conservation projects) and CEC wheeling charge is reasonable/plausible and satisfies the revenue expenditure requirements of this criterion. The program plans shall contain the following. a. A program timetable; FINDING: The Hearings Officer incorporates the findings for DCC 18.128.260(B)(3) as additional findings for this approval criterion. The Hearings Officer finds this criterion is not applicable. b. Projected gross revenues from the proposed facility; FINDING: Applicant, in the Supplemental Burden of Proof (page 34), indicated that the projected gross revenue for the proposed hydroelectric facility is approximately $1,000,000 over a 20-year period. Staff, in the Staff Report (pages 48 & 49) indicated that the Applicant's analysis of projected gross revenues anticipated from the proposed facility complied with the above criterion. The Hearings 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 64 of 69 Officer concurs with Staffs analysis and conclusion asset forth in the Staff Report. The Hearings Officer finds this criterion is met. C. Projected program expenditures and the percentage of gross revenues they represent; FINDING: The Hearings Officer incorporates the findings for DCC 18.128.260(B)(3) as additional findings for this approval criterion. The Hearings Officer finds reference to "program" in this criterion relates to water and stream enhancement. The Hearings Officer finds this criterion is not applicable. d. Projected water savings and the percentage of known current water losses they represent; FINDING: The Hearings Officer incorporates the findings for DCC 18.128.260(B)(3) as additional findings for this approval criterion. The Hearings Officer finds no evidence in the record that any water will be saved or lost as a result of the completion of Applicant's proposed hydroelectric facility. As noted previously Applicant's proposed hydroelectric facility will use water from Whychus Creek that is currently being used to operate the Watson hydroelectric facility and authorized irrigated farms. There is no substantial evidence in the record that persuades the Hearings Officer there will be any water savings or loss if Applicant's hydroelectric facility is approved. Staff, in the Staff Report, indicated that the Applicant provided a seepage loss estimate report" (dated April 30t", 2012) indicating that the total seepage loss of the open canal system between Watson Dnenni�ivo.r nnA AA�Vnn-An Moen I—enin'r !S apFn rnvimatcly SZ 2 rfc nn a erage. The Hearings Offfinds the "seepage loss" referenced by Applicant will be the same whether or not the current application is approved or denied. The Hearings Officer finds this criterion is not applicable. e. A declaration by the applicant that at least 50 percent of the conserved water will remain undiverted by the applicant; FINDING: The Hearings Officer incorporates the findings for DCC 18.128.260(B)(3) as additional findings for this approval criterion. The Hearings Officer finds the amount of water diverted from Whychus Creek is controlled/limited by Applicant's State of Oregon water rights. The Hearings Officer finds Applicant is not proposing, as a result of the proposed hydroelectric facility at the Subject Property, to reduce or increase the diversion of water from Whychus Creek. The Hearings Officer finds this criterion is not applicable to Applicant's proposed hydroelectric facility. f. A declaration by the applicant that water diversion for power generation will not cause water flow in the affected stretch of the river (from the diversion to the tailrace exit) to fall below the minimum 4 Engineering report prepared by Kevin L. Crew, P.E., a Registered Professional Engineer with Black Rock Consulting. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 65 of 69 streamflow for that stretch as recommended by the Oregon Department of Fish and Wildlife; and FINDING: The Hearings Officer incorporates the findings for DCC 18.128.260(B)(3) as additional findings for this approval criterion. The Hearings Officer finds the water flow from the Whychus Creek diversion point to tailrace exit is not on an "affected stretch of the river." However, for this criterion it seems reasonable that Applicant provide assurances that water diversion from power generation will not cause water flow in Whychus Creek to fall below the minimum streamflow at the diversion point. The Hearings Officer finds that with such a condition the Applicant's proposed hydroelectric facility can meet this criterion. g. A declaration that the applicant will enter into an agreement with the County to fulfill all of the requirements in DCC 18.128.260(B)(1) through (5) before beginning construction. FINDING: Applicant asserts that it has fulfilled all requirements of DCC 18.128.260(B)(1) through (5). The Hearings Officer finds that Applicant needs to enter into a declaration per DCC 18.128.260(B)(f) in order to meet the requirements of DCC 18.128.260(B)(1) through (5) before beginning construction. The Hearings Officer finds that with such condition this criterion can be met. IV. CONCLUSION: Applicant proposed to construct a hydroelectric facility on the Subject Property. The Hearings O- ficer F. and evi.Je... —4 nrm irvmont in Annlirnnt'c ror rNrr) ci ihmiccinnc mint nParl\/ all of the vi i�ci iuu� iu cviuc11" cui iu u� bui �� .. .�,� ....� ,,,........-.- ........I ..... ... relevant approval criteria for the conditional use and site plan reviews. The Hearings Officer found all requirements were met in Applicant's lot of record request. The Hearings Officer found Applicant failed to address with, adequate specificity and clarity, the requirements of OAR 660-033-0130 as required by DCC 18.16.030(K). The Hearings Officer also found that Applicant did not adequately address the requirements of DCC 18.32.040(A) and DCC 18.124.060(1). The Hearings Officer notes that the record in this case may have included much, if not all, of the evidence necessary to meet the requirements of OAR 660-033-0130. However, the Hearings Officer found that Applicant argued that OAR 660-033-0130 did not have to be addressed because it had been codified by DCC 18.16.040. The Hearings Officer found Applicant failed to provide any legal analysis in support that OAR 660-033-0130 had been codified by DCC 18.16.040. The Hearings Officer found that Applicant did not respond to COLW's record argument that DCC 18.32.040(A)'s dimensional standards needed to be addressed in this case. The Hearings Officer found that Applicant's failure to provide a legal analysis why DCC 18.32.040(A) does not apply or, in the alternative, was satisfied the Hearings Officer was forced to find DCC 18.32.040(A) was not met. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 66 of 69 In the event Applicant successfully appeals the Hearings Officer's decision the Hearings Officer finds it would be useful for the appellate body to have suggested Conditions of Approval. Many of the Conditions of Approval attached to this decision were drafted by Staff. Some conditions were edited/modified by the Hearings Officer. V. DECISION Approval of Lot of Record Application as set forth in Deschutes County File No. 247-20-000187-LR. Denial of Conditional Use Applications and Site Plan Review Application as set forth in File Nos. 191- CU, 192-CU, 193-SP and modified by 247-20-000461-MA. Deschutes County Hearings Officer Gregory J. Frank DURATION OF APPROVAL if approved, the Arnplirant chaii initiate thin :.ice fnr thin prnp nceri Hinvoinpment Within t�kio (2) yearc of the date this decision becomes final, or obtain approval of an extension under Title 22 of the County Code, or this approval shall be void. The Hearings Officer's decision becomes final twelve (12) days after the date of mailing, unless appealed by a party of interest. Other permits may be required. The applicants are responsible for obtaining any necessary permits from the Deschutes County Building Division and Deschutes County Environmental Soils Division as well as any required state and federal permits. "RECOMMENDED CONDITONS OF APPROVAL TO BE CONSIDERED IF APPLICANT'S CONDITIONAL USE AND SITE PLAN PROPOSALS ARE APPROVED UPON APPEAL" A. Approval is based upon the application, site plan, specifications, and supporting documentation (including Applicant's "Access Plan" attached to its Supplemental Burden of Proof) submitted by the Applicant. Any substantial change in this approved use will require review through a new land use application. B. The Applicant shall obtain any necessary permits from the Deschutes County Building Division and Environmental Soils Division. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 67 of 69 C. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed by DCC 18.120.040 D. Structural setbacks from any north lot line shall meet the solar setback requirements in DCC 18.116.180. E. All necessary and required federal, state and local government agency permits shall be obtained for the proposed facility, parking areas, service drive, and power distribution lines. F. The Applicant is hereby notified that flood insurance premiums for flood -proofed non- residential buildings will be based on rates that are one foot below the flood -proofed level (e.g. a building constructed to the flood level will be rated as one foot below that level). G. Elevation of all new construction, including replacement and substantial improvements, relative to mean sea level of the lowest floor shall be documented before the framing inspection with a survey certified by a State of Oregon registered professional engineer or land surveyor. H. All exterior lighting shall be shielded so that direct light does not project off -site. Additionally, any lighting used to illuminate off-street parking areas shall be so arranged that it will not project light rays directly upon any adjoining property in a residential zone. 1. Applicant shall follow Best Management Practices in suppressing dust on the service drive nr nther rprrn%id mronc nn tho Ci ihiort PrnnoWr—rhi J. Prior to the issuance of building permits, the Applicant must submit a revised site plan illustrating a minimum 24-foot wide service drive and its connection to a road right-of-way, and specifying the location of the fencing, rails, walls, or other barriers or markers used to mark and define the proposed service drive. K. Prior to the issuance of building permits, the Applicant shall provide certification by a licensed professional engineer that drainage facilities have been designed and constructed in accordance with the current Central Oregon Stormwater Manual to receive and/or transport at least the design storm (as defined in the current Central Oregon Stormwater Manual) for all surface drainage water, including stormwater coming to and/or passing through the development. L. Prior to the issuance of building permits, the Applicant shall submit a certification by a licensed professional engineer that the proposed building entrance will have a maximum slope of five percent. M. The facility and its operation will comply with all applicable state and local fill -and -removal statutes and regulations. 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 68 of 69 N. Prior to the issuance of building permits, the Applicant shall submit a written declaration to the Planning Division stating that water diversion for power generation will not cause water flow in the affected stretch of the river (from the diversion to the tailrace exit) to fall below the minimum streamflow for that stretch as recommended by the Oregon Department of Fish and Wildlife. O. Prior to the issuance of building permits, the Applicant shall submit a landscaping plan demonstrating the site's compliance with the landscaping requirements of DCC 18.124.070(B)(2) - specifically, the three (3) proposed parking spaces require a total of 75 square -feet of landscaping (3 spaces x 25 square -feet). 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 69 of 69 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA H, � E r ,-UHCI, Afnr'T.; EDbn1NDSCA RD 18150 Simmons Rd. v� { N 0 625 1,250 2,500 ft 7 i n h= t .505 feat &GIsl f;1 CA SAFRINA LN Deschutes County GIS, Sources: Esn, USGS, NOAA