2023-285-Minutes for Meeting August 07,2023 Recorded 9/11/2023v-�Es coG2a
BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541) 388-6570
1:00 PM
Recorded in Deschutes County
Steve Dennison, County Clerk CJ2023-285
Commissioners' Journal 09/11 /2023 1:54:40 PM
2023-285
FOR RECORDING STAMP ONLY
BOCC MEETING MINUTES
MONDAY August 7, 2023
Allen Room
Live Streamed Video
Present were Commissioners Anthony DeBone, Patti Adair and Phil Chang. Also present were County
Administrator Nick Lelack; Deputy County Administrator Whitney Hale; Assistant County Counsel Kim
Riley; and BOCC Executive Assistant Brenda Fritsvold.
This meeting was audio and video recorded and can be accessed at the Deschutes County
Meeting Portal website www.deschutes.org/meetings.
CALL TO ORDER: Chair DeBone called the meeting to order at 1:00 p.m.
CITIZEN INPUT: None
AGENDA ITEMS:
1. Application for COHC Opportunity Grant
Jessica Jacks, Public Health Program Manager, explained the request to apply for a
Central Oregon Health Council 2023 Opportunity Grant in the amount of $200,000
to fund the County's Drug Free Community program through December of 2026.
The grant would allow expanding the service area for this program and also enable
serving young adults up to 25 years of age.
Commissioner Chang asked how the program will reach persons between 18 and 25
years old. Jacks said the program coordinator will work with related State programs
and also collaborate with local partners.
BOCC MEETING AUGUST 7, 2023 PAGE 1 OF 6
2.
Saying that 85% of the encampments at China Hat shelter persons who use drugs,
Commissioner Adair was further concerned that some 4th and 5th graders are
bringing marijuana to school.
Lauren Wood, Drug Free Communities Program Coordinator, agreed that to be
effective, anti -drug efforts must be comprehensive and cross -sector. She said the
program will partner with schools to identify and vet resources, and help them
communicate relevant information to parents. Jacks added that one of these
resources is the "Connect Parent Workshop" series which supports parents in
having productive conversations with their children regarding substance misuse.
CHANG: Move to authorize Public Health staff to submit an application for a
Central Oregon Health Council 2023 Opportunity Grant
ADAIR: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
Update from Terrebonne Sanitary District
Terrebonne Sanitary District Board Members Kristin Yurdin and Mariah Patel were
joined by Linda Swearingen and Nancy Blankenship in providing an update on the
formation of the Terrebonne Sanitary District, which was approved by electors
earlier this year. Yurdin said at the first meeting of the board last month, it was
decided that the district will apply for a $5.25 million grant from the State's Clean
Water Revolving Fund, of which $2 million would be forgivable. Residents will also
be able to apply for financial aid from the State to connect to the new sewer; the
district's goal is to keep rates underneath $72 per month.
Swearingen said the district seeks funding for operational costs including a phone
line, post office box, website and insurance. She estimated that administrative costs
will amount to $70,000 for the next year, and another $120,000 is needed to
contract for necessary environmental work. The district will submit a formal request
to the County for ARPA funds for these initial start-up expenses.
3. Work Session - Vacation of a Portion of Schibel Road
Cody Smith, County Engineer/Assistant Road Director, said the County has received
a petition to vacate a portion of Schibel Road in Section 05 of Township 17S, Range
12E, W.M. Because the petition is not supported by all of the property owners who
abut the proposed vacation area, a public hearing is required and has been
scheduled for Wednesday, August 91h. Smith concluded that although the Road
BOCC MEETING AUGUST 7, 2023 PAGE 2 OF 6
Department agrees the proposed vacation is in the public interest, the department
is not advocating for it.
4. Work Session - Mountain View Petition to Incorporate
Nicole Mardell, Senior Planner, said following the receipt of a petition to incorporate
a new city of Mountain View, the County Clerk determined that the petition
contained sufficient certified signatures from at least 20% of voters in the proposed
boundary and thus can continue to the public hearing process. Staff proposes that
the required public hearing be set for September 20, 2023; if the Board agrees,
notices will be sent to service providers and agencies as well as owners of property
within the proposed incorporation boundary and those within 750 feet of the
proposed boundary,
Peter Gutowsky, Community Development Director, added that following the public
hearing, the Board will need to determine if the incorporation proposal meets the
necessary criteria, as follows:
1. Whether the proposed boundary correctly includes all lands that would be
benefited from being in the proposed city;
2. Whether the taxation rate will support the proposed services; and
3. Whether the proposed city can and will be able to comply with relevant
statewide planning goals, County Comprehensive Plan goals and policies, and
implementing ordinances.
Gutwosky said because this matter constitutes a land use decision, the Board's
decision can be appealed to LUBA.
Chair DeBone noted the consensus of the Board to allow the petitioner up to 45
minutes at the outset of the public hearing to present the proposal. Any agency
wishing to provide testimony will be allotted ten minutes.
Commissioner Adair asked for a map of the proposed incorporation area with
streets identified. Gutowsky said the proposal is 265 square miles and offered to
provide an index map along with maps showing streets by township and range.
Mardell raised the question of how to pay for costs incurred to process this petition
as these are not addressed in the fee schedule; these costs involve printing, mailing
and publishing notices. One option is to charge these costs to the CDD's operating
fund. Another option is to utilize General Fund revenues or another funding source.
The Board discussed charging these costs to CDD's operating fund (Fund 295) and
deciding later, depending on if other necessary expenses deplete that fund, whether
some amount of reimbursement may be warranted.
BOCC MEETING AUGUST 7, 2023 PAGE 3 OF 6
5. Work Session: Appeal of a decision regarding a secondary accessory farm
Dwelling
Haleigh King, Associate Planner, reviewed that on July 12th, the Board agreed to hear
an appeal of a Hearings Officer decision on a Conditional Use Permit to establish a
secondary accessory farm dwelling in the Multiple Use Agricultural Zone, and
specified that the hearing will be limited de novo. The public hearing has been
scheduled for Wednesday, August 91h
6. Preparation for Public Hearing: Repeal of Conventional Housing Combining
Zone
Rachel Vickers, Associate Planner, said a public hearing will be held on Wednesday,
August 9th to take testimony on the proposed repeal of the Conventional Housing
Combining (CHC) Zone. Vickers explained that the CHC Zone, adopted in 1979,
restricts placement of manufactured or prefabricated homes in three specific areas
located east of Tumalo, west of Tumalo, and east of Bend. Vickers added that this
overlay zone appears to have been created by petition of property owners, although
explanatory findings regarding its intent are not available in county records.
Vickers said the Planning Commission held the initial public hearing on the
proposed repeal on June 22, 2023, during which no oral or written testimony was
provided. The Commission then voted 4-1 to approve the proposed repeal.
Responding to Commissioner Adair, Vickers confirmed that this overlay zone is
currently applied to 505 properties.
OTHER ITEMS:
• County Administrator Nick Lelack distributed a draft letter to Verizon
regarding cell phone service at the Deschutes County Fair & Expo Center.
Commissioner Adair relayed information from someone who said it took
three tries for a call to 9-1-1 to go through during the FairWell Festival event.
Commissioner Chang agreed that adequate cell phone coverage is desired
but was unsure if Verizon will view the provision of cell phone towers for
large scale gatherings to be its responsibility. He suggested asking Verizon to
partner with the County to assure service during large events.
Deputy County Administrator Whitney Hale concurred that it would be good
to understand how to mitigate non -service or spotty service. She shared that
BOCC MEETING AUGUST 7, 2023 PAGE 4 OF 6
DCSO Sergeant Nathan Garibay has suggested a local contact who may help
the County explore a potential solution.
Commissioner DeBone noted that he represents the Association of Oregon
Counties on the State Interoperability Executive Committee which works to
ensure communication and data sharing between emergency responders.
He supported revising the letter to refer to added capacity in both the short
and long terms.
• Commissioner DeBone reported his attendance last week at a joint meeting
with the Redmond and Bend city councils as well as a COIC board meeting
where unanimous support was expressed for COIC assuming administrative
operations of the Coordinated Houseless Response Office.
• Commissioner DeBone shared that Olympic gold medal winner Ashton Eaton
attended a fundraising dinner on Saturday in La Pine.
• Commissioner Adair supported allowing 4H and FFA participants add-ons if
their livestock does not make weight, citing the time and costs invested in
these efforts.
• Commissioner Adair said she will meet with Governor Kotek on Friday with
Redmond Mayor Fitch and Bend Mayor Kebler regarding homelessness and
managed camps.
Commissioner DeBone said while the State's land use system does not allow
these on resource land, campgrounds are permitted in Deschutes County if
they feature a natural recreational amenity.
Commissioner Chang said if that amenity requirement is something the
County has imposed on itself, he would be interested to revisit that. He
added it will be important that the County demonstrate its commitment to
siting a managed campground beyond permitting the land use and asked
what resources the County is willing to contribute.
Discussion ensued regarding what it may mean to actively partner in
developing a managed camp, how careful planning results in effective
operations, and the need to take action to address problems posed by
unsanctioned encampments.
The Board discussed the presentation to be made at the Bend Chamber's
"What's Brewing" event at Tetherow on August 8ct,
EXECUTIVE SESSION: None
ADJOURN:
Being no further items to come before the Board, the meeting was adjourned at 3:05 p.m.
BOCC MEETING AUGUST 7, 2023 PAGE 5 OF 6
DATED this ' Day of �� 2023 for the Deschutes County Board of Commissioners.
ATTEST:
RECORDING SECRETARY
ANTHONY DEBONE, CHAIR
;Jdzo&Ll-�
ATTI ADAIR, VICE CHAIR
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PHIL CHANG, CO ISSIONER
BOCC MEETING AUGUST 7, 2023 PAGE 6 OF 6
��vCOG1�ES
BOARD OF
COMMISSIONERS
BOARD OF COUNTY COMMISSIONERS MEETING
1:00 PM, MONDAY, AUGUST 07, 2023
Allen Room - Deschutes Services Building - 1300 NW Wall Street - Bend
(541) 388-6570 1 www.deschutes.org
AGENDA
MEETING FORMAT: In accordance with Oregon state law, this meeting is open to the public and
can be accessed and attended in person or remotely, with the exception of any executive session.
Members of the public may view the meeting in real time via YouTube using this link:
http //bit.ly/3mminzv. To view the meeting via Zoom, see below.
Citizen Input: The public may comment on any topic that is not on the current agenda.
Alternatively, comments may be submitted on any topic at any time by emailing
citizeninput@deschutes.org or leaving a voice message at 541-385-1734.
When in -person comment from the public is allowed at the meeting, public comment will also be
allowed via computer, phone or other virtual means.
Zoom Meeting Information: This meeting may be accessed via Zoom using a phone or computer.
• To join the meeting via Zoom from a computer, use this link: http://bit.ly/3h3ogdD.
• To join by phone, call 253-215-8782 and enter webinar ID # 899 4635 9970 followed by the
passcode 013510.
• If joining by a browser, use the raise hand icon to indicate you would like to provide public
comment, if and when allowed. If using a phone, press *6 to indicate you would like to speak and
*9 to unmute yourself when you are called on.
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, call (541) 388-6572 or
email brenda.fritsvold@deschutes.org.
Time estimates: The times listed on agenda items are estimates only. Generally, items will be heard in
sequential order and items, including public hearings, may be heard before or after their listed times.
CALL TO ORDER
CITIZEN INPUT: Citizen Input may be provided as comment on any topic that is not on the
agenda.
Note: In addition to the option of providing in -person comments at the meeting, citizen input comments
may be emailed to citizeninput@deschutes.org or you may leave a brief voicemail at 541.385.1734.
ACTION ITEMS
1. 1:00 PM Application for COHC Opportunity Grant
2. 1:10 PM Update from Terrebonne Sanitary District
3. 1:30 PM Work Session - Vacation of a Portion of Schibel Road
4. 1:35 PM Work Session - Mountain View Petition to Incorporate
S. 1:45 PM Work Session: Appeal of a decision regarding a secondary accessory farm
Dwelling
6. 1:55 PM Preparation for Public Hearing: Repeal of Conventional Housing Combining
Zone
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.
0 • 1
August 07, 2023 BOARD OF COUNTY COMMISSIONERS MEETING Page 2 of 2
01E S COG2�
BOAR® OF
COMMISSIONERS
MEETING DATE: August 7, 2023
SUBJECT: Application for COHC Opportunity Grant
RECOMMENDED MOTION:
Move to authorize Public Health staff to apply for a COHC Opportunity grant.
BACKGROUND AND POLICY IMPLICATIONS:
Deschutes County Health Services (DCHS) is seeking approval to apply for the Central
Oregon Health Council 2023 Opportunity Grant. This grant opportunity is unique in that it
is open to organizations who have already been awarded funding from another grantor
and whose projects align with the Regional Health Improvement Plan (RHIP) Future State
Measures. COHC will award up to $200,000 per organization to assist in enhancing and
sustaining grant funded programs. Allowable use of funds are for project capacity
expansion, service area expansion, project timeline extension and/or including additional
populations. DCHS-Public Health has prioritized the Drug Free Community (DFC) grant
funded program for this COHC funding opportunity.
DCHS' current DFC grant, awarded by the Centers for Disease Control and Prevention
(CDC), addresses the geographic area of the City of Bend with a focus on preventing youth
under 18 years from consuming alcohol, e-cigarettes and vape pens, and increasing their
perception of risk for underage cannabis use.
DFC required goals include:
1. Increase community collaboration - including engagement and coalition
sustainability.
2. Reduce youth substance use- including Information dissemination, education
problem identification and referral, and environmental strategies
The DFC grant expires September 29, 2025. The COHC Opportunity Grant would allow
DCHS Pubic Health (PH) to expand the DFC grant timeline through December 2026, expand
the service area from Bend only to broader Deschutes County, and expand service
population from youth under 18 only to include young adults, 18-25 year olds, while
strengthening the sustainability of recent projects.
For example, this grant opportunity could allow more time and expertise to adapt youth-
focused tobacco cessation materials to reach all of Deschutes County communities and
help to expand the alcohol binge drinking prevention efforts to young adults in Deschutes
County, a heavy drinking, and high -risk population. Please see "DFC Accomplishments"
document, attached.
If awarded, DCHS intends to use all funding to support a current 1.0 FTE Community Health
Specialist II (limited duration currently ending Sept. 2025). Total cost of salary and benefits
for the proposed 15-month timeframe is $205,503. DCHS will secure additional resources
to cover the $5,503, which exceeds the grant amount. Additionally, it should be noted that
the COHC grant opportunity does not allow for indirect costs. The loss of indirect revenue
from the DFC grant is $12,500. In recognition of this loss, DCHS will consider multiple
options to address the shortfall in FY26 and 27 budgets; this may include reprioritization of
current resources or reduction of FTE.
BUDGET IMPACTS:
If awarded, $200,000 revenue for the term September 30, 2025 to December 31, 2026
ATTENDANCE:
Jessica Jacks, Public Health Program Manager
Lauren Wood, Drug Free Communities Program Coordinator
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MEETING DATE: August 7, 2023
SUBJECT: Update from Terrebonne Sanitary District
RECOMMENDED MOTION:
None; information only.
BACKGROUND AND POLICY IMPLICATIONS:
Board members for the recently formed Terrebonne Sanitary Sewer District will provide the
BOCC an update on the status of the district formation, project development, funding, and
other items.
BUDGET IMPACTS:
Update only.
ATTENDANCE:
Terrebonne Sanitary District Board Members
Chris Doty, Road Department
BOARD OF
COMMISSIONERS
MEETING DATE: August 7, 2023
SUBJECT: Work Session - Vacation of a Portion of Schibel Road
BACKGROUND AND POLICY IMPLICATIONS:
Deschutes County Road Department has received a petition to vacate a portion of Schibel
Road in Section 05 of Township 17S, Range 12E, W.M. As the petition for vacation does not
include acknowledged signatures of owners of 100 percent of property abutting the
proposed vacation area, the vacation proceedings are subject to a public hearing which will
be held on Wednesday, August 9, 2023. This work session is to prepare the Board for the
August 91" public hearing.
BUDGET IMPACTS:
None
ATTENDANCE:
Cody Smith, County Engineer/Assistant Road Department Director
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DEPARTMENTROAD
MEMORANDUM
TO: Board of County Commissioners
FROM: Cody Smith, County Engineer/Assistant Road Department Director
DATE: July 14, 2023
SUBJECT: Road Official's Report
Vacation of a Portion of Schibel Road in Section OS, Township 17S, Range 12E, W.M.
Background:
Deschutes County Road Department has received a petition to vacate a portion of Schibel Road in Section 05 of
Township 175, Range 12E, W.M.. The Petitioners, who are owners of abutting or underlying property to the
proposed vacation area, are:
• Jeffrey and Kathryn Gates, owners of Tax Lot 1800 on Assessor's Map 17-12-05B (Chief Petitioner);
• Marlene Wheeler Rennie, owner of Tax Lot 1901 and joint owner of Tax Lot 1400 on Assessor's Map 17-
12-05B; and
• Terry A. Rennie, joint owner of Tax Lot 1400 on Assessor's Map 17-12-05B.
The following individuals are owners of abutting or underlying property to the proposed vacation area who are
not Petitioners to the proposed vacation:
• Carl Elwyn Owens III, owner of Tax Lot 1900 on Assessor's Map 17-12-05B; and
• John Kevin O'Leary, owner of Tax Lot 100 on Assessor's Map 17-12-05C.
Schibel Road is a local access road that is not maintained by Deschutes County. From Old Bend Redmond
Highway, Schibel Road proceeds west; approximately 1,240 ft. west of Old Bend Redmond Highway (within
the boundaries of Tax Lot 1800), Schibel Road branches into two alignments, one alignement bearing north
and one alignement bearing southwest. The northerly alignment across Tax Lot 1800 presently does not
coincide with the established right of way. The subject right of way proposed for vacation includes the entirety
of the right of way lying within the boundaries of Tax Lots 1800 and 1901, which includes the intersection of
the two aforemention alignments and the southwest alignment. The owners of Tax Lot 1800 have agreed to
dedicate a new public right of way across their property to coincide with the existing as -travelled alignment of
Schibel Road for the north alignment. The subject right of way proposed for vacation is 60 feet wide and was
Page 1 of 5
created by dedication deed recorded at the Deschutes County Clerk's Office as Deed No. 1994-46818. Most
of the length of Schibel Road within the proposed vacatio is paved at varrying widths; Road Department staff
understand that the road improvements were funded and constructed by current or previous owners of the
underlying properties and that the improvements were not funded by the County. There are presently public
utilities within the proposed vacation area consisting of facilities owned and operated by Central Electric
Cooperative.
Page 2 of 5
Figure — Aerial Photo of Proposed Vacation Area
The Petitioners provided the following reasons (in bold italics) for the proposed vacation; Road Department
staff responses to the reasons provided by the Petitioners are also given below:
1. Invalid Dedication due to Restrictions and Reservations —Septic was installed & permitted by
Deschutes County in 1980, repaired and permitted by Deschutes County in 1991. The Deed of
Dedication was accepted in 1994 by Deschutes County. The 60 foot width encroaches upon the septic
system that was approved by Deschutes County. Road Department staff assert that the dedication of
the subject portion of Schibel Road was valid, as Deed No. 1994-46818 includes valid offer of the
dedication by the owners of the underlying property at the time of dedication and acceptance by the
County governing body at the time of dedication. Based on a review of Community Development
Department property records for Tax Lot 1800 on Assessor's Map 17-12-05B, it does appear that a
portion of the disposal field and reserve area for the subject property's onsite wastewater system may
exist within the proposed vacation area. Additionally, an outbuilding and a portion of a livestock corral
also appear to exist within the proposed vacation area. Road Department staff note that, while this
situation encumbers both the public right of way and the underlying property, it does not invalidate
the public road dedication.
2. Reduces property values of the 3 tax lots requesting this Vacation, which is 75% of the owners. Road
Department staff will not address this statement as it is not verifiable or indicative of a necessity to
vacate the public's interest in a property.
3. Decades old trees and landscaping would be lost. Road Department staff will not address this
statement as it is not verifiable or indicative of a necessity to vacate the public's interest in a property.
4. Since 1994, the county has never used, improved, nor plowed this road to our knowledge. Not once
that we know of has the county plowed the snow during the major snowstorms of 2017 & 2019. Road
Department records indicate that no County -funded maintenace or improvement of the subject
portion of Schibel Road has ever occurred; however, Road Department staff note that County -funded
maintenance of a local access road is forbidden under state law and that absence of County -funded
maintenance is not indicative of a necessity to vacate the public's interest in a property.
S. The southern portion of the road that is requested to be vacated has not been used by the general
public and has only been used as access and a driveway for tax lots 1800 and 1901.John Kevin O'Leary,
owner of Tax Lot 100 on Assessor's Map 17-12-05C, has indicated to Road Department staff that he has
interest in using it for future access. Nonetheless, Road Department staff believe that, generally, the
subject right of way has only been used to access Tax Lots 1800 and 1901 as indicated by the
Petitioners. The primary access to Tax Lot 100 on Assessor's Map 17-12-05C is from Old Bend Redmond
Highway.
6. Traffic will increase, and no traffic study has been done that we know of. Road Department staff will
not address this statement as it is not verifiable or indicative of a necessity to vacate the public's
interest in a property.
Page 3 of 5
7. Safety of the young children living on Schibei Road is a concern of the parents and neighbors. Road
Department staff will not address this statement as it is not verifiable or indicative of a necessity to
vacate the public's interest in a property.
8. It is not in the General Public's best interest. The Board of County Commissioners will make this
determination.
9. Induced to sign dedication under false pretenses. We were told we could remove the southern
portion of the dedication with a single item deletion. Current Road Department staff have no
knowledge of the requirements or circumstances under which the subject right of way was dedicated
in 1994. Road Department staff note that Jeffrey and Kathryn Gates, Chief Petitioners and owners of
Tax Lot 1800 on Assessor's Map 17-12-05B, were partial grantors for the 1994 dedication deed.
10. Tax lot 100 to the south will not suffer loss of access as the site address of 64145 Old Bend Redmond
Hwy is permitted, approved and installed. As indicated above, the primary access to Tax Lot 100 on
Assessor's Map 17-12-05C is from Old Bend Redmond Highway.
A review of Assessor's Tax Map 17-12-05B indicates that the proposed vacation would effectively landlock Tax
Lot 1901, potentially depriving the owners of that property of access necessary for the exercise of their
property right. In regards to this matter, Road Department staff note that the submitted petition included a
loss of access consent form signed by the property owners.
The Petitioners submitted completed service provider consent forms from those providers serving within or
adjacent to the proposed vacation area; those service providers and their responses are listed below:
• Avion Water Company, Inc.
o Representative: Mike Heffernan, Engineering Department
o Service provider does not have existing facilities within the area proposed for vacation
o Service provider consents to the proposed vacation
• Central Electric Cooperative
o Representative: Parneli Perkins, Land and ROW Specialist
o Service provider does have existing facilities within the area proposed for vacation
o Service provider consents to the proposed vacation but requests that an easement for utilities
be granted within the proposed vacation area. Service provider emailed Road Department
staff on June 12, 2023 indicating that easement documents had been secured and that their
organization was supportive of the proposed vacation.
Findings:
Based upon the submitted petition materials, responses to service provider notices, and the Road
Department's research of the subject right of way, the Road Department makes the following findings:
• The proposed vacation area was dedicated to the public by dedication deed recorded at the Deschutes
County Clerk's Office as Deed No. 1994-46818 (ORS 368.326).
• Owners of a recorded property right that would potentially be deprived of access necessary for the exercise
of that property right with the proposed vacation have consented to the proposed vacation (ORS 368.331).
Page 4 of 5
• The Petitioners, who represent the cvmas of n-lore than sixty (60) percent of property abutting the subject
right of way, have submitted complete petitions -and submitted the required fee (ORS 368.341(1)(c); ORS
368.341(3); ORS 368.341(4); ORS368.3511.
• As the petition for vacation does not include acknowledged signatures of owners of 100 percent of
property abutting the proposed vacation area, the vacation proceedings are subject to a public hearing
(ORS 368.346).
• The subject right of way does not appear to be necessary for current or future public use.
• The subject right of way appears to coincide with onsite wastewater system components, an outbuilding,
and other private property improvements for Tax Lot 1800 on Assessor's Map 17-12-05B.
Recommendation:
Based on the above findings, the Road Department has determined that the proposed vacation is in the
public interest. The Road Department recommends that the Board of County Commissioners approve the
proposed vacation with adoption of Order No. 2023-017 subject to the following conditions:
1. Prior to vacation of the subject right of way, the owners of Tax Lot 1800 on Assessor's Map 17-12-05B
shall execute a dedication deed to coincide with the existing as -travelled north alignment of Schibel
Road.
2. The vacated property shall vest with the rightful owner or owners holding title according to law in
accordance with ORS 368.366(1)(c).
This report is made pursuant to ORS 368.326 through 368.366, concerning the vacation of county property.
Page 5 of 5
E S COG��
o
BOARD OF
COMMISSIONERS
MEETING DATE: August 7, 2023
SUBJECT: Work Session - Mountain View Petition to Incorporate
RECOMMENDED MOTION:
Staff seeks Board direction to return on August 9, 2023 with an order initiating the public
hearing process to consider a petition to incorporate the city of Mountain View. Staff further
seeks direction from the Board on cost recovery associated with required notices.
BACKGROUND AND POLICY IMPLICATIONS:
Staff will conduct a work session with the Board to discuss the hearing approach and
parameters for a petition to incorporate.
BUDGET IMPACTS:
None
ATTENDANCE:
Nicole Mardell, AICP, Senior Planner - Long Range
Peter Gutowsky, AICP, Community Development Director
Stephanie Marshall, Assistant Legal Counsel
MEMORANDUM
TO: Deschutes County Board of Commissioners ("Board")
FROM: Nicole Mardell, AICP, Senior Planner
Peter Gutowsky, AICP, Community Development Director
DATE: August 2, 2023
SUBJECT: Work Session - Mountain View Petition to Incorporate
Staff will conduct a work session with the Board on Monday, August 7, 2023, to discuss the hearing
approach and parameters for a petition to incorporate.
The record is available at the following website: www.deschutes.org/mountainviewincorporation
1. BACKGROUND
On February 14, 2023, a Prospective Petition for Incorporation of a City was submitted to the Deschutes
County Clerk's office. The Chief Petitioner, Andrew Aasen, seeks to establish a new city, approximately
265 square miles (169,550 acres) in size, extending west of Diamond T Road to the intersection of
Highway 20 and 27 (George Millican Highway) as shown in the attached map.
Oregon Revised Statute (ORS) sections 221.005 to 221.106 outline the procedures for incorporation of
new cities. Under these rules, an unincorporated area of at least 150 persons can submit a petition to
incorporate to the county clerk's office for consideration by the Board.
If at least 20 percent of registered voters within the proposed incorporation boundary sign on to the
petition, it can then move forward to a public hearing. The purpose of the public hearing is threefold, the
Board must determine:
1. Whether the proposed boundary correctly includes all lands that would be benefited from being
in the proposed city;
2. Whether the taxation rate will support the proposed services; and,
3. Whether the proposed city can and will be able to comply with relevant statewide planning goals,
County Comprehensive Plan goals and policies, and implementing ordinances.
The first two issues are required by the ORS and the third is related to land use and is required by OAR
and 1000 Friends of Oregon v. Wosco County Court, 299 Or. 344, 358-60, 67 (1985).
If the Board were to find all three issues are sufficiently supported by the applicant's analysis and burden
of proof, the petitioner could then move forward to a ballot initiative. At that time, registered voters in
the proposed city boundary would vote on official incorporation and formation of a governing body.
II. PROPOSAL
The Deschutes County Clerk determined the Petition to Incorporate the proposed City of Mountain View
has sufficient certified signatures from at least 20% of voters in the proposed boundary and can continue
to the public hearing process.
The petitioner provided application materials, which are currently under review. Additional information
on the details of the application and review criteria will be provided to the Board at a subsequent work
session prior to the initial public hearing. All application materials are posted on the project website:
www.deschutes.org/mountainviewincorporation
III. PUBLIC HEARING PROCESS
The Oregon Supreme Court in 1000 Friends of Oregon v. Wasco County Court, 299 Or. 344, 358-60, 67 (1985)
determined that a petition to incorporate is a quasi-judicial land use action. Therefore, staff intend to
follow the typical quasi-judicial hearing process outlined in Deschutes County Code 22.24 (Land Use
Action Hearings), unless certain requirements are superseded by ORS Chapter 221.
Staff, in coordination with the chief petitioner, have identified Wednesday, September 20, 2023, at 9 am
as the preferred hearing date and time.
Notice of public hearing will be provided to property owners within the proposed incorporation
boundary, to property owners within 750 of the proposed boundary, service providers, and agencies.
Notice of public hearing will also be published in the Bend Bulletin for a consecutive two weeks to meet
the noticing requirements in ORS 221.040(1).
Staff recommends including time limits in the public hearing notice to ensure an orderly and efficient
hearing process. The following are standard practice for land use related hearings:
• Petitioner: 30 minutes
• Agency: 10 minutes
• Public Comment: 3 minutes
• Petitioner rebuttal: 10 minutes
Staff seeks Board direction to move forward with an order establishing the hearing date, time, and time
limitations on testimony.
-2-
IV. ASSOCIATED REVIEW COSTS
Processing a petition to incorporate is extremely rare. In the last 41 years, only three cities in Oregon
have successfully incorporated -- Keizer (1982), Damascus (2004, disincorporated 2020), and La Pine
(2006). The Community Development Department (CDD) has not adopted fees for reviewing or
processing a petition, nor are fees discussed in relevant statute or rule. Staff is seeking Board input on
cost recovery associated with mailed Notice of Application, Notice of Public Hearing, and two postings of
the Notice of Public Hearing in the Bend Bulletin as required by statute.
Options:
1. Absorb the mailing and publishing costs in CDD's operating fund (Fund 295) which assigns a
budgeted amount for advertising and public notice requirements for land use applications
(450401); or
2. Use General Fund or other sources to reimburse CDD's mailing and publishing costs for
processing the petition for incorporation.
V. NEXT STEPS
Staff will return with a Board order initiating the public hearing process, setting the date and time for the
initial public hearing, and time limitations on testimony under'Other Items' on August 9.
Prior to the public hearing, staff will return for a work session to discuss the application contents and
criteria in more detail.
Attachments
Map - Proposed City of Mountain View Boundary and Existing Zoning
-3-
J1 E S COG2�
BOARD OF
COMMISSIONERS
MEETING DATE: August 7, 2023
SUBIECT: Work Session: Appeal of a decision regarding a secondary accessory farm
dwelling
RECOMMENDED MOTION:
N/A; work session in preparation for a public hearing on August 9th.
BACKGROUND AND POLICY IMPLICATIONS:
Staff will provide background and discuss issue areas with the Board to consider for the
proposed Conditional Use Permit for a secondary accessory farm dwelling (file nos. 247-23-
000162-CU, 23-516-A).
BUDGET IMPACTS:
None
ATTENDANCE:
Haleigh King - Associate Planner
Jacob Ripper - Principal Planner
'� ES e�®G
MEMORANDUM
TO: Deschutes County Board of County Commissioners
FROM: Haleigh King, AICP, Associate Planner
DATE: August 2, 2023
RE: Work Session: Deschutes County Land Use File Nos, 247-23-000162-CU, 23-516-A:
Secondary Accessory Farm Dwelling
The Board of County Commissioners (Board) will conduct a Work Session on August 7, 2023, in
preparation for a Public Hearing on August 9, 2023, to consider a request for a secondary accessory
farm dwelling. The applications and appeals are identified as file nos. 247-23-000162-CU, 23-516-A.
The subject property is located approximately 1.4 miles north of Tumalo, between Cline Falls Road
and Gerking Market Road. The property is addressed at 19825 Connarn Road, and is further
identified on County Assessor's Map 16-12-19 as tax lot 501. A location map is included as
Attachment E.
I. BACKGROUND
The subject 9.70-acre property is currently in farm use consisting primarily of lavender plant
production and pasture grasses. The subject property is located approximately 1.4 miles north of
Tumalo, between Cline Falls Road and Gerking Market Road. The property is addressed as 19825
Connarn Road, and is further identified on County Assessor's Map 16-12-19 as tax lot 501. The
subject property is zoned Multiple Use Agricultural (MUA10) and is within the Airport Safety (AS)
Combining Zone.
The Applicant, Tumalo Lavender Property, LLC, has requested a Conditional Use Permit to establish
a secondary accessory farm dwelling using an existing manufactured home. The secondary
accessory farm dwelling is proposed in an existing, Class A manufactured home located on the
southeast side of the property. The manufactured home was previously permitted as a Temporary
Medical Hardship Dwelling in 2010 and again in 2015. In the southern portion of the property, the
property is developed with a stick -built single-family dwelling that is within the larger agricultural
structure and was permitted in 2005 which allowed the central portion of an existing barn to be
converted into the primary residence.
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
Q% (541) 388-6575 @cdd@deschutes.org @ www.deschutes.org/cd
Staff referred the Conditional Use Permit application to a public hearing due to a number of
interpretative questions. A public hearing before a Hearings Officer was held on May 16, 2023. The
Hearings Officer issued a denial on June 14, 2023. Ms. Olson (the Applicant) filed a timely appeal of
the Hearings Officer's denial on June 26, 2023. In a Consideration to Hear on July 12, 2023, the Board
agreed to hear the appeal limited de novo in a Public Hearing.
I1. HEARINGS OFFICER DECISION
The Deschutes County Hearings Officer rendered a decision denying the Applicant's request for a
Conditional Use Permit for the secondary accessory farm dwelling on the grounds that:
• The Hearings Officer interpreted DCC 18.116.070 (A)(1) to require Class A manufactured
homes (with exceptions for CH zoned property and also R-1 and SM zones which allow
caretaker's residences) to be used as "primary dwellings." The Hearings Officer concluded
that the Applicant's proposed use of a Class A manufactured home does not satisfy the
requirements of DCC 18.116.070.
• The Hearings Officer found that all relevant approval criteria were met by the applicant in
this case, except for DCC 18.116.070. On the basis that the application did not meet the
requirements of DCC 18.116.070 the application was denied.
III. APPEAL FROM APPLICANT (247-23-000516-A)
The Applicant (Tumalo Lavender LLC) submitted a timely appeal of the Hearings Officer's decision
on June 26, 2023. The Applicant requested the Board conduct a limited de novo Public Hearing to
review the following issues:
• Interpretation of DCC 18.116.070 (Hearing Officer's Decision pages 10-13)
• Application of that interpretation to DCC 18.32.030(G) (Hearing Officer's Decision pages 20-
23)
• Application of DCC 18.116.070 to subject application (Hearing Officer's Decision pages 32-33)
IV. 150-DAY LAND USE CLOCK
The application for 247-23-000162-CU was considered complete and the 150-day clock started on
April 6, 2023. At the time the Hearings Officer decision was issued, the 1501h day was September 17,
2023. However, the applicant initiated a toll from July 14, 2023 to August 9, 2023 which extended
the clock by 27 days.
The 150th day on which the County must take final action on this application is October 14, 2023.
247-23-000162-CU, 23-516-A Page 2 of 3
V. RECORD
The record for File No. 247-23-000162-CLI and the Notices of Appeal for Appeal No. 247-23-000516-
A are as presented at the following Deschutes County Community Development Department
website:
https://www.deschutes.org/247-23-000162-CU
VI. NEXT STEPS
Based on the feedback received from the Board at the Work Session, Staff will prepare for the
upcoming Public Hearing.
ATTACHMENT(S):
Attachment A - 2023-06-14 Hearing Officer Decision 23-162-CU
Attachment B - 2023-06-26 Notice of Appeal
Attachment C - Deschutes County Code Sections 18.116.050 and 18.116.070
Attachment D - Board Order No 2023-029 to hear appeal limited de novo
Attachment E - Location Map
247-23-000162-CU, 23-516-A Page 3 of 3
Mailing Date:
Wednesday, June 14, 2023
HEARINGS OFFICER DECISION
FILE NUMBER: 247-23-000162-CU
SUBJECT PROPERTY/
OWNER/APPLICANT: Mailing Name: TUMALO LAVENDER PROPERTY LLC
Map and Tax Lot: 1612190000501
Account: 132493
Situs Address: 19825 CONNARN RD, BEND, OR 97703
(hereafter referred to as the "Subject Property")
AGENTFOR
APPLICANT: Douglas White
Oregon Planning Solutions LLC
REQUEST: Review of a Conditional Use Permit to establish a secondary
accessory farm dwelling in an existing manufactured home in the
Multiple Use Agricultural (MUA10) Zone and Airport Safety (AS)
Combining Zone.
HEARING DATE: Tuesday, May 16, 2023
HEARING START: 6:00 pm
STAFF CONTACT: Haleigh King, Associate Planner
Phone: 541-383-6710
Email: Haleigh.King@deschutes.org
RECORD: Record items can be viewed and downloaded from:
https://www.deschutes.org/247-23-000162-CU
Record items can also be viewed and downloaded from:
www.buildingpermits.oregon.gov
I. APPLICABLE CRITERIA
Deschutes County Code (DCC)
Title 18, Deschutes County Zoning Ordinance
Chapter 18.32, Multiple Use Agricultural Zone (MUA10)
Chapter 18.56, Surface Mining Impact Area Combining Zone (SMIA)
Chapter 18.80, Airport Safety Combining Zone (AS)
Chapter 18.116, Supplementary Provisions
1
Chapter 18.128, Conditional Use
Title 22, Deschutes County Development Procedures Ordinance
II. BACKGROUND FINDINGS
A. LOT OF RECORD: The Subject Property has been verified as a legal lot of record pursuant
to file no. LR-02-25.
B. SITE DESCRIPTION: The Subject Property is 9.70-acres in size and is currently in farm use
consisting primarily of lavender plant production and pasture grasses. In the southern portion of
the Subject Property a "stick -built" single-family dwelling is located within a larger agricultural
structure' (the "Barn"). The Barn has an attached greenhouse on its south side and there are
additional large detached greenhouses in the areal. In the southeast region development includes
an irrigation pond, detached garage, and a manufactured home previously used as a medical
hardship home (see below for land use history). The Subject Property is developed with other small
accessory structures, including a 504 square foot building used for displaying lavender products
available for purchase (permit AG-13-12). Connarn Road, which provides access to the Subject
Property, is adjacent to the north property boundary. The Subject Property is served by an on -site
septic disposal system, with domestic water provided by a private well. The Subject Property has
at least 8.7 acres of irrigation water rights and includes an irrigation pond. According to the Flood
Insurance Rate Map (FIRM) and National Wetlands Inventory for Deschutes County, the Subject
Property is not located in the 100-year flood plain nor does it contain wetlands. The grade of the
Subject Property is relatively even across the property.
C. REVIEW PERIOD: The application in this case was submitted on March 7, 2023 and
deemed complete by the Planning Division on April 6, 2023. The Hearings Officer notes that a
request to keep the record open was made at the public hearing and the Hearings Officer kept
the record open pursuant to the following schedule:
Initial Open -Record Period: Submission of New Evidence by 4:00 pm May 23, 2023; and
Responsive Open -Record Period (evidence in response to that submitted during the Initial
Open -Record Period): Submission of Responsive Evidence by 4:00 pm May 30, 2023; and
Rebuttal Open -Record Period (Applicant's final argument): Submission of Applicant's Final
Argument by 4:00 pm on June 6, 2023.
Staff provided the following comments, during its Initial Open -Record Period submission
(Memorandum, May 23, 2023, page 2), related to the date when the final County decision in this
1 County building permit B59977 (2005) allowed for the central portion of an existing barn (originally reviewed under permit AG-
04-3) to be converted into the primary residence (approximately 1,080 square feet).
z The attached and detached greenhouses were established around 2006. Staff (Staff Report, page 2) indicated that the
greenhouse structures did not appear to meet the required 25-foot rear setback for the MUA10 Zone. The Hearings Officer notes
that this decision does not review or approve these potentially nonconforming setbacks.
2
case is due:
"As discussed at the conclusion of the May 16, 2023 hearing, the Hearings Officer left the
written record open for a total of 21 days to include three periods of seven days. DCC
22.24.140.E states the following,
E. A continuance or record extension granted under DCC 22.24.140 shall be subject to
the 150- day time limit unless the continuance or extension is requested or otherwise
agreed to by the applicant. When the record is left open or a continuance is granted
after a request by an applicant, the time period during which the 150-day clock is
suspended shall include the time period made available to the applicant and any time
period given to parties to respond to the applicant's submittal.
While staff notes the open record period was not initially requested by the applicant, the
applicant, Holly Olsen, did not object to the specific schedule as set forth above. This occurred
at approximately 1 hours and 27 minutes during the hearing on May 16, 2023. Staff notes the
applicant was asked if they wanted to be the initiator of the open record period, to which Ms.
Olsen responded, "No", around 1 hours 28 minutes. Despite the applicant not requesting the
open record period, they did agree to it as discussed above.
Therefore, Staff believes the 150-day clock is suspended for the first 14 days of the open record
period pursuant to the language above "...or otherwise agreed to by the applicant." Staff
wanted to clarify this for the Hearing Officer's consideration."
The Hearings Officer concurs with the above -quoted Staff analysis and conclusion. The Hearings
Officer adopts the above -quoted Staff comments as the Hearings Officer's findings related to the
open -record period and impact on the date the final County decision is due.
The Hearings Officer notes that an open -record submission was received from Applicant on June
1, 2023 which stated:
"We will close out the record so that Gregory Frank can start his review and expedite the process. Does
that shorten his 21-day review period? In other words, if we close the record today, does the 21-day
review period begin today or does it still begin on June 6 (ending June 27)?"
The Hearings Officer finds that Applicant, on June 1, 2023 waived the balance of its final argument
period and requested the record be closed. The Hearings Officer finds that the record shall be
deemed closed on June 1, 2023.
The 150th day on which the County must take final action on this application is September 17,
2023.
3
D. PROPOSAL: The Applicant requests a Conditional Use Permit to establish an existing
manufactured home as a secondary accessory farm dwelling pursuant to DCC 18.32.030.G and DCC
18.128.3
The Applicant provided the following statement in their Proposal section (Burden of Proof, page 5):
"The applicant is requesting a Conditional Use to establish an existing manufactured home
(previously a medical hardship dwelling) as a secondary accessory farm dwelling pursuant
to the requirements of the MUA-10 Zone. As stated above, the property is currently engaged
in the growing of lavender and production of lavender products. The subject manufactured
home was originally put in place and permitted as a temporary use for a medical hardship
by the previous owners (see Attachment 8 showing the 2010 Land Use permit). The subject
site was purchased in 2022 by present owners Tumalo Lavender Property LLC which is
comprised of an equal 113 owner -operator split by the following parties: Holly Olson,
Summer Hagedorn, and Marilyn Thompson (see Attachment C showing Property Deed and
Attachment D showing operating agreement for Tumalo Lavender Property LLC). One of the
owners and primary operators of the farm is currently residing in the subject manufactured
home while the primary single-family dwelling is to be rented to farm help." [underlining
included in original document]
Based upon the application materials the Hearings Officer interprets Applicant's proposal for a
secondary accessory farm dwelling to be inextricably linked to the existing manufactured home.
The Hearings Officer is constrained by Applicant's request to locate the existing manufactured
home as the secondary accessory farm dwelling. The Hearings Officer is not allowed to consider
unspecified alternatives such as locating an alternative Class manufactured home on the Subject
Property.
E. SURROUNDING LAND USES: The area surrounding the Subject Property consists of a mix
of farm and rural residential properties. To the north, south, and east are properties primarily
developed with residences and carry the same zoning as the Subject Property. To the west are
properties, developed and undeveloped, which are also zoned for farm use. A majority of the
properties in the area exhibit some level of farm or agricultural use. The Deschutes River is
approximately 0.5 miles to the east of the Subject Property. Zoning in the area is a mixture of
Exclusive Farm Use (EFU), Multiple Use Agricultural (MUA10), Surface Mining (SM), and Flood
Plain (FP).
F. LAND USE HISTORY: The Applicant submitted the current land use permit application in
response to code enforcement case, file no. 247-22-000400-CE. In summary, the Applicant did
not decommission or remove the temporary manufactured home when the medical hardship
previously approved in 2010 and again in 2015 ceased to exist and the Subject Property was sold.
The Applicant did not apply for a new medical hardship dwelling. The Applicant is requesting an
after -the -fact approval for the existing manufactured home to be used as a secondary accessory
3 See Deschutes County Application question #1: "Request Conditional Use for Manufactured Home as Secondary Farm Dwelling."
CI
farm dwelling. Although the secondary accessory farm dwelling Lise may have been operational
on the Subject Property for some time, Staff and the Hearings Officer reviewed it as a new
application.
Below is a summary listing of recent land use actions affecting the Subject Property:
• 247-18-000526-CU, 527-SP: Conditional Use and Site Plan Review to establish a commercial
activity in conjunction with the existing lavender farm use; and
• 247-15-000238-TU: Temporary Use Medical Hardship Dwelling4; and
• TU-10-8: Temporary Use Medical Hardship Dwelling; and
• SMA-04-4: Surface Mining Impact Area (SMIA) review for single-family dwelling; and
• LR-02-25: Legal lot of record verification.
G. PUBLIC AGENCY COMMENTS: The Deschutes County Planning Division mailed notice on
March 21, 2023, to several public agencies and received the following comments:
Deschutes County Onsite Wastewater, Todd Cleveland
"This proposal will require septic system review and permits. Upgrades to the existing
system or a new system may be necessary."
STAFF REPORT COMMENT (Staff Report, pages 4 and 5): "Staff recommends the following
condition of approval be included in any decision which approves the application:
Prior to the initiation of use, the property owner shall obtain any necessary permits
from the Deschutes County Building Division and Onsite Wastewater Division."
Deschutes County Senior Transportation Planner, Peter Russell
"I have reviewed the transmittal materials for 247-23-000162-CU to change a
manufactured home previously approved as a temporary medical hardship dwelling into
an accessory farm dwelling on a 9.7-acre parcel in the Multiple Use Agricultural (MUA-10)
and Airport Safety (AS) zones at 19825 Connarn Road, aka 16-12-19, Tax Lot 501. The
result would be two permanent dwellings on the property, which contains Tumalo
Lavender Farm.
The most recent edition of the Institute of Traffic Engineers (ITE) Trip Generation
Handbook indicates a single-family home (Land Use #210) produces approximately nine
weekday trips. Thus the site's two dwellings would produce approximately 20 weekday
trips (9.43 + 9.43). Under DCC 18.116.310(C), no further traffic analysis is required for a
4 The dwelling approved through file 247-15-000238-TU utilizes the same dwelling approved through file TU-10-8. The
requirement for anew land use - 247-15-000238-TU —was based on the change of circumstances (change in family member using
the dwelling).
5
use of less than 50 new weekday trips. Staff notes the burden of proof states the farm
would have workers ranging in four to 10 in number. Even with 10 employees, which
would equal20 new daily weekday trips, the combination of the roughly 30 weekday trips
from the two dwellings (20 from the farm worker dwelling, 9.43 from the main home)
would not exceed the 50-trip threshold.
The property accesses Connarn Road, a public road maintained by Deschutes County and
functionally classified as local. The property has two driveway permits approved by
Deschutes County (#247-19-001534-DA and #247-SW4543) and thus complies with the
access permit requirements of DCC 17.48.210(A).
The property is approximately nine miles west-southwest of the Redmond
Airport. Between the distance to the airport and the height limit in the zone, the use will
not penetrate any imaginary surfaces related to Roberts Field.
Board Resolution 2013-020 sets a transportation system development charge (SDC) rate
of $5,080 per p.m. peak hour trip. From an SDC perspective, staff finds the proposed used
would in effect establish the trip generation equivalent of a new second dwelling on the
property. Staff notes the burden of proof on Page 5 describes the intensity of the use as
"...year-round farm help, seven days a week, with part-time and full-time staff varying in
between four and up to 10 employees throughout the year." On Page 6, the burden of
proof it states "...it is necessary to have farm help reside in both dwellings." County staff
has determined a local trip rate of 0.81 p.m. peak hour trips per single-family dwelling
unit; therefore the applicable SDC is $4,115 ($5,080 X 0.81). 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.
THE PROVIDED SDC AMOUNT IS ONLY VALID UNTIL JUNE 30, 2023. DESCHUTES
COUNTY'S SDC RATE IS INDEXED AND RESETS EVERY JULY 1. WHEN PAYING AN SDC,
THE ACTUAL AMOUNT DUE IS DETERMINED BY USING THE CURRENT SDC RATE AT THE
DATE THE BUILDING PERMIT IS SUBMITTED.
ON JULY 1, 2023, THE SDC BECOMES $5,406 PER PEAK HOUR TRIP AND THIS RATE WILL
BE VALID UNTIL JUNE 30, 2024. THIS WILL INCREASE THE SDC FROM $4,115 TO $4,379
($5,406 X0.81)."
Deschutes County Building Safety Division, Randy Scheid
"NOTICE: The Deschutes County Building Safety Divisions code mandates that Access,
Egress, Setbacks, Fire & Life Safety, Fire Fighting Water Supplies, etc. must be specifically
addressed during the appropriate plan review process with regard to any proposed
structures and occupancies.
A
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."
The following agencies did not respond to the notice: Bend Fire Department, Deschutes County
Assessor, Deschutes Code Enforcement, Deschutes Road Department, Oregon Department of
Aviation, Tumalo Irrigation District.
H. PUBLIC COMMENTS: The Deschutes County Planning Division mailed notice of the public
hearing to all property owners within 250 feet of the subject property on March 21, 2023. The
Applicant also complied with the posted notice requirements of Section 22.24.030(B) of Title 22.
The Applicant submitted a Land Use Action Sign Affidavit indicating the Applicant posted notice
of the public hearing on March 22, 2023. Notice of the public hearing was published in The
Bulletin newspaper on March 22, 2023.
Staff, prior to the publication of the Staff Report, received two public comments from nearby
property owners.
The first comment received by Staff was received from David Arnold, resident and owner of
property located at 19830 Connarn Road, Bend, OR 97703 on March 16, 2023:
"I see that a conditional use application has been submitted by Tumalo Lavender to add a
secondary farm dwelling (the medical hardship manufactored trailer) to their property.
Please include me with all correspondence at this email address and at my physical
address, David Arnold, 19830 Connarn Rd, Bend, OR 97703. I will be asking that this
application be denied."
Mr. Arnold sent a follow-up comment on March 16, 2023,
"I have read the Conditional Use applications from Tumalo Lavender Properties LLC and
feel that the application is incomplete. Specifically the plot map provided is incomplete.
The applicants have failed to meet the applicants responsibilities for required
documentation as required when a conditional use application is submitted to the county.
Here is a list of information I feel that needs to be provided for me to respond.
Driveways (existing and proposed).
Location of all existing and proposed structures on the property.
Distance from all existing and proposed structures to property lines (setbacks).
Location of water source.
Location of septic tank, drainfield and replacement area.
Location of major features such as rivers, streams, canals, irrigation ditches, and/or rock
ledges/outcrops.
Specifically I am most concerned about location of the water source. This property is
registered with the Oregon Department of Agriculture with a Food Processing License and
NsyStk Growers Collectors of Native Plants license (nursery). Both of these licenses require
specific permits from the Oregon Water Resources Department (OWRD). For this reason I
7
request the application be returned to the applicants as incomplete and not be accepted
until all the requirements are met."
The second comment was received from Gail Burton and Gregg Riegel, residents and owners of
property located at 19816 Connarn Road, Bend, OR 97703 on March 16, 2023. Burton/Riegel
stated:
"We recently became aware the Tumalo Lavender property at 19825 Connarn Road, Bend
OR 97703 has applied for a conditional use permit for a secondary farm dwelling.
We are opposed to their attempt to change the designation of the 'medical hardship'
manufactured home (granted to the previous owners), which should have been removed,
per their agreement with the county, when Judy Knight's mother died.
Instead, she and her husband, Gordon, were able to finagle its continued existence on the
property, by pretending he needed help, ostensibly for a medical condition. Instead, they
rented it out, while he was overseeing the operations, driving the tractor, and working on
the farm.
The current owners are living in the 'medical hardship' manufactured home, rather than
in the primary dwelling. As this is zoned MUA-10, where one single family home is
allowed, they should be required to remove the manufactured home and bring the
property into compliance.
Many of us farm in Tumalo, yet we don't request county approval for a secondary dwelling
to house our farm workers.' Historically, their farm workers have been seasonal, few in
numbers, and have lived elsewhere, except for the illegal travel trailer, which was finally
removed, following a code violation complaint.
In the survey records, it appears the south and east property lines were never surveyed.
This should be required before determining the actual setbacks, as the manufactured
home, its adjacent stick built garage, the primary residence, and the large greenhouses
are all very close to the south and east property lines.
In fact, Gordon Knight had a boundary dispute with the neighbor to the south, when he
realized the primary residence was laid out incorrectly, and a part of it was too close to
the property line.
In conclusion, we formally request a public hearing on this application, and to be informed,
via email, and in paper correspondence, of any matters pertaining to the application."
At the public hearing, in addition to Staff and Applicant (including Applicant representatives), a
number of persons testified (Gail Burton, David Arnold, Nunzie Gould). The Hearings Officer
reviewed and considered all hearing testimony and all documents submitted into the record when
making this decision. Testimony and documents directed to relevant approval criteria may be
referenced in the findings set forth below.
III. FINDINGS & CONCLUSIONS
A. PRELIMINARY FINDING - SCOPE
A number of opponents offering testimony and record documents raised issues related to the
operation of the lavender farm apart from the proposed secondary accessory farm dwelling. For
example, testimony/documentary evidence was offered related to code violations not related to
the manufactured home that is subject of the application in this case. Additionally, testimony and
evidence were offered related to the commercial activities located on the Subject Property.
The Hearings Officer finds that the application in this case seeks approval of the use of an existing
manufactured home proposed to be used as a secondary accessory farm dwelling. The Hearings
Officer is limited to considering evidence and argument related to whether or not the application
for a secondary accessory farm dwelling meets the relevant approval criteria. This case is not the
proper time or forum to reconsider and/or review issues not related to the approval criteria
relevant to the specific application for a secondary accessory farm dwelling on the Subject
Property.
B. PRELIMINARY FINDING - INCOMPLETE APPLICATION
Two participants (Arnold and Gould) argued that the application was incomplete, should not have
been accepted by Staff and therefore should be denied. Initially, the Hearings Officer finds that
no participant in this case provided the Hearings Officer with a citation or legal reference to a
specific section of State law, DCC or regulation that imposed "application requirements" as
relevant approval criteria. The Hearings Officer finds that generally "application requirements"
do not operate as relevant approval criteria and therefore, an application cannot be denied on
the basis that "application requirements" have not been met.
In this case many of the "application requirement" deficiencies raised by participants related to
evidentiary topics that were contained in relevant approval criteria.5 In those instances the
Hearings Officer considered all evidence in the record when determining if a specific approval
criterion was met. In numerous instances evidentiary deficiencies were noted by the Hearings
Officer and addressed through the imposition of conditions of approval. The Hearings Officer only
utilized conditions of approval to satisfy evidentiary deficiencies where a future administrative
decision would be made using objective standards (as opposed to discretionary standards).
C. PRELIMINARY FINDINGS: STAFF ISSUES
5 Example of application requirement that is also related to relevant approval criterion: David Arnold May 16, 2023 email to
Haleigh King - "distance from all existing and proposed structures to property lines (setbacks)."
E
Staff (Staff Report [page 151 & Staff PowerPoint Presentation [Issue Areas and Considerations] &
hearing testimony) requested that the Hearings Officer address specific issues. The Hearings
Officer provides findings below for each issue raised by Staff.
1. Staff Issue: Class A Manufactured Home
"Can a Class A manufactured home be utilized as a secondary accessory farm dwelling
pursuant to DCC 18.116.070?"
Applicant requested (Application form & Burden of Proof) that the County approve a conditional
use permit for a "manufactured home as a secondary accessory farm dwelling subject to the
requirements set forth in DCC 18.116.070." The reason that DCC 18.116.070 is relevant to this case
is found in DCC 18.32.030 G. which states that a conditional use request may be approved for a:
Manufactured home as a secondary accessory farm dwelling, subject to the requirements set
forth in DCC 18.116.070.
Applicant's proposal is for a conditional use permit to allow an existing manufactured home to be
allowed as a secondary accessory farm dwelling on the Subject Property. Applicant acknowledged
that the existing manufactured home located on the Subject Property is a Class A manufactured
home per DCC 18.116.050 A.
DCC 18.116.070, as relevant to this case, states the following:
A. As defined in DCC 118.116.050, Class A and 8 manufactured homes shall
be permitted as follows, subject to the requirements of the underlying zones:
In the following zones, except where there is a Conventional Housing Overlay Zone
(CH): Any EFU zone, MUA-10, F-1, F-2, RR-10, any area zoned as an unincorporated
community (as that term is defined herein), RSR-M, RSR-S, and FP as the primary
dwelling, and R-1 and SM as a caretaker's residence.
Applicant, in its May 23, 2023 open -record submission, responded to Staff's above -stated question
as follows:
"The Staff Report clearly acknowledges that the existing manufactured home (the one that is
the subject of this application) is a Class A manufactured home (page 24 of the Staff Report).
The above subsection (1) clearly provides that Class A and e manufactured homes are permitted
in any MUA-10 and the 'FP as the primary dwelling, and R1 and SM as a caretaker residence'.
The provisions of DCC 18.116.070 (A)(1) clearly provide that Class A and 8 manufactured homes
are permitted in certain zones, including MUA-10 Zones, without restriction unless such zoning
imposes additional requirements. The MUA-10 zoning regulations do not impose additional
requirements as to use of Class A or 8 manufactured homes. The limit to Class A and 8
10
manufactured homes in the (FP) Flood Plain Zone to only the 'primary dwelling' doesn't apply
to the MUA-10 zone, in the some way that a 'caretaker's residence' is permitted in the Rural
Industrial (RI) and Surface Mining (SM) zones."
Staff, in its May 23, 2023 Memorandum, provided the following comments related to the
interpretation of DCC 18.116.070 (A)(1):
"As stated in A.1, the sentence construction of the code requirement may be unclear on whether
a Class A manufactured home can be utilized only as a primary dwelling in any zone besides RI
and SM, as a primary dwelling only in the FP zone, or if allowed as any type of dwelling in the
MUA Zone. Although unclear, Staff believes this requirement to specify that Class A
manufactured homes are allowed in the FP zone only as a primary dwelling.
It is clear that DCC 18.116.070(8) allows for a Class C manufactured home to be permitted as a
secondary accessory farm dwelling. However, as discussed in the staff report, the subject
dwelling is classified as a Class A manufactured home. Although unclear, Staff believes this
provision for Class C manufactured homes to be used as secondary accessory farm dwellings
was intended to allow Class C manufactured homes to be utilized for this specific use on
properties where otherwise a Class C manufactured home would not be permitted. In other
words, DCC 18.116.070(A)(1) allows Class A and 8 in a large variety of situations and (8)(2) is
an exception to the implicit preclusion of Class C manufactured homes in the .070(A)(1)
scenarios.
However, the sentence construction of 18.116.070(A)(1) makes this unclear. Staff requests
interpretation and specific findings from the Hearings Officer on this issue."
The Hearings Officer agrees with Staff that it is necessary to interpret DCC 18.116.070 (A)(1) in
order to make the decision in this case.
As a backdrop for the interpretive process the Hearings Officer takes notice of ORS 174.010.
While this section of the Oregon Revised Statutes is not determinative in this case the Hearings
Officer finds it provides a relevant conceptual perspective. ORS 174.010 states:
"In 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."
The Hearings Officer also takes note of prior Court and Oregon Land Use Board of Appeals
("LUBA") interpretative guidelines. A long line of Oregon cases instructs decision makers (such
as a hearings officer) to focus on the "text" and the "context" of the relevant code. Portland Gen.
Elec. Co v. Bureau of Labor and Indus., 317 Or 606 (1993), State v. Gaines, 346 Or 160 (2009) and
Sarathy v Washington County, LUBA No. 2011-065. These cases are consistent with the Hearings
Officer's interpretation of ORS 174.010.
11
The Hearings Officer finds that the words, and only the words, used by the drafters (Deschutes
County Commission) should be considered. The Hearings Officer does not have the authority to
insert words into DCC 18.116.070 (A)(1) that were not included or to omit words that were
included in DCC 18.116.070 (A)(1). The Hearings Officer also finds it to be proper to consider the
actual text of DCC 18.116.070 (A)(1) in the context of other sections of DCC 18.116.070.
The Hearings Officer finds that DCC 18.116.070 is focused on where specific types/categories of
manufactured homes may be located in Deschutes County. DCC 18.116.070 (A) addresses where
Class A and B manufactured homes are allowed to be placed. The Hearings Officer finds that DCC
18.116.070 (A)(2), (A)(3) and (A)(4) are not relevant to these findings. The preface of DCC
18.116.070 (A) states, in part that DCC 18.116.070 (A) is "subject to the requirements of the
underlying zone." The Hearings Officer finds the "subject to" language is an important part of
DCC 18.116.070 (A) and in this case the application for a secondary accessory farm dwelling is
allowed as a conditional use in the MUA-10 zone.6
The Hearings Officer agrees with Staff that the language of DCC 18.116.070 (A)(1) is challenging
to read. This is primarily because of the "except where..." language and the use of a colon
(following "(CH)"). However, the Hearings Officer finds that DCC 18.116.070 (A)(1) is capable of
a clear interpretation.
The Hearings Officer finds that DCC 18.116.070(A)(1) permits the placement of a Class A or Class
B manufactured home in certain designated land use planning zones. DCC 18.116.070 (A)(1) sets
forth two lists of zones where Class A and Class B manufactured homes can be placed as "primary
dwelling" and where they (Class A and Class B manufactured homes) can be placed as a
"caretaker's residence." The first list includes the following zones: EFU, MUA-10, F-1, F-2, RR-
10, any area zoned as an unincorporated community, RSR-M, RSR-5 and FP. The second list
contains the R-1 and SM zones.
The Hearings Officer disagrees with Applicant that the only zone where a "primary dwelling" can
be located is the FP zone. The Hearings Officer disagrees with Applicant for two reasons. First,
immediately preceding the FP designation in DCC 18.116.070 (A)(1) is the word "and." The
Hearings Officer finds that the word "and," as used in DCC 18.116.070 (A)(1) between "RSR-5"
and "FP," is a conjunction linking the listed zones.7 The word "and" ties together all zones in the
list. The Hearings Officer finds that the "FP" zone is included in the list of zones where a Class A
or Class B manufactured home must be used as a "primary residence."
The second reason the Hearings Officer disagrees with Applicant's "FP is the only zone requiring
a 'primary residence"' is Applicant's statement that "The MUA-10 zoning regulations do not
6 The Hearings Officer finds no participant in this case identified a relevant "underlying zone" (MUA) requirement (other than
compliance with DCD 18.116.070) that would limit the location of a Class A or B manufactured home, as a conditional use, on the
Subject Property.
7 Dictionary definition of "and": "used to connect words of the same part of speech, clauses, or sentences, that are to be taken
jointly."
12
impose additional requirements as to use of Class A or B manufactured homes." DCC 18.32.030
G does in fact "impose additional requirements" for the placement of a manufactured home in
the MUA-10 zone; DCC 18.116.070 restrictions and limitations on the various classes of
manufactured homes within identified zoning districts. Further, the Hearings Officer finds that
had the Commission intended there be no requirements to use Class A or B manufactured homes
it could have clearly said that. To the contrary the Commission included a finite list of zones
where a Class A or Class B manufactured home must be used as the "primary dwelling."
The Hearings Officer also considered the context of DCC 18.116.070 (A). The Hearings Officer
finds it is reasonable to consider language of other sections of DCC 18.116.070 when interpreting
DCC 18.116,070 (A)(1). The Hearings Officer takes note that DCC 18.116.070 (B) is directed to
where Class C manufactured homes may be placed. Specifically, DCC 18.116.070 (13)(2) allows a
Class C manufactured home to be permitted "as a secondary accessory farm dwelling." The
Hearings Officer finds that the Commission, when drafting DCC 18.116.070 was aware of the
difference between "primary dwellings" and "secondary accessory farm dwellings." The Hearings
Officer finds that the Commission's inclusion of the phrase "secondary accessory farm dwellings"
in DCC 18.116.070 (B) but not in DCC 18.116.070 (A) clearly expressed the Commission's intent.
The Hearings Officer finds that the Commission's omission of the phrase "secondary accessory
farm dwellings" from DCC 18.116.070 (A) was intentional. Consistent with ORS 174.010 the
Hearings Officer finds that he may not "insert" terms or phrases that are not included in the
actual text of a questioned code section. The Hearings Officer cannot insert the "secondary
accessory farm dwellings" text into DCC 18.116.070 (A)(1).
The Hearings Officer does not find Applicant's interpretation of DCC 18.116.070 (A)(1) is without
merit. However, the Hearings Officer finds interpreting DCC 18.116.070 (A)(1) to require that
Class A and Class B manufactured homes, within the MU-10 zone, must be used for "primary
dwelling" purposes best reflects the actual words used (text) in DCC 18.116.070 (A)(1) and is
consistent with the overall context of DCC 18.116.070.
2. Staff Issue: Need
"Does an applicant need to demonstrate a need for the 'secondary accessory farm
dwelling?' and if so, has the applicant demonstrated a need for the 'secondary accessory
farm dwelling?"
It appears to the Hearings Officer this query arose from Staff's review of prior County land use
decisions. Staff cited two prior County decisions (CU-90-163 and CU-95-122) dealing with
applications for a secondary accessory farm dwelling proposed to be located within the MUA-10
zone. County staff, in the CU-90-163 decision (Conclusionary Findings, page 3), stated
"the applicant has an established farm operation with livestock and has shown a need for an
accessory dwelling in conjunction with the farm use..." [bolding added for emphasis by the
Hearings Officer]
13
The Hearings Officer issuing the CU-95-122 decision stated:
"In order to satisfy this criterion, the applicant must show that farm use of the property is the
main use of the property and there is connection between the farm use and the proposed
accessory use or structure. Or, in the words of the applicants' counsel, the issue is 'whether
or not the dwelling will be necessary for the farm use."' [bolding added for emphasis by the
Hearings Officer]
Staff, in this case and in the CU-90-163 Staff decision, and the prior Hearings Officer's decision
(CU 95-122), sourced its "need," "necessary," or "connection" concerns from the definition of
"accessory use or accessory structure." (See DCC 18.04.030) The DCC defines "accessory use or
accessory structure" as:
"a use or structure incidental and subordinate to the main use of the property, and located on
the some lot as the main use. Accessory uses include drilling for, and utilization of, low -
temperature geothermal fluid in conjunction with the main use of the property."
The Hearings Officer finds the above -quoted "Accessory use or accessory structure" definition
does not contain the either the word "need" or the word "necessary." The definition does
contain the words "incidental" and "subordinate." Staff, in its CU 95-122 decision, did reference
dictionary definitions for "incidental" and "subordinate." Staff, in CU 95-122 stated:
"Incidental means 'being likely to ensure as a chance or minor consequence. Webster's New
Collegiate Dictionary. Subordinate means 'inferior, submissive to or controlled by authority."
Id. The use of these terms in the definition of accessory use or structure suggests that there
be a connection of the proposed use or structure to the main use of the property."
The Hearings Officer, in addition to considering the DCC definition of the phrase "accessory use
or accessory structure" considered the dictionary definition of "accessory" as an interpretative
aide. Webster's Online Dictionary (Accessory Definition & Meaning - Merriam -Webster) defines
"accessory" as:
aiding or contributing in a secondary way: supplementary
accessory materials
present in a minor amount and not essential as a constituent
an accessory mineral in a rock
The Hearings Officer finds that the literal meaning of "accessory," as used in the context of DCC
18.32.030 G., requires that an applicant successfully demonstrate the a proposed "secondary
accessory farm dwelling" has a connection to a demonstrated primary farm use. The Hearings
Officer finds that the extent or degree of connection could plausibly include a demonstration of
"need" or "necessity." However, the Hearings Officer finds that the use of the phrase "incidental"
suggests a lesser standard of proof than "need." The Hearings Officer finds that use of the term
14
"incidental" is better paired with the terms "contributing" or "supportive." The Hearings Officer
finds that an applicant is not required to demonstrate "need" in an application for a secondary
accessory farm dwelling.
3. Staff Issue: Relationship — Primary use/residence to Secondary Accessory Farm Dwelling
"How does a 'secondary accessory farm dwelling' relate to a property's primary use or
primary residence?"
The Hearings Officer incorporates the interpretation of "accessory" set forth in the Need findings
above (Section III.C.2). The Hearings Officer finds that DCC does not define the term "secondary"
or the phrase "farm dwelling." The Hearings Officer finds that "primary use" is defined by DCC
18.04.030.
Secondary is defined by Webster's Online Dictionary (Secondary Definition & Meaning I
Dictionary.com) as:
"next after the first in order, place, time, etc.
belonging or pertaining to a second order, division, stage, period, rank, grade, etc.
dependent on or generated by something more basic; derivative."
The Hearings Officer finds that the phrase "farm dwelling," while not defined by the DCC, is a
structure that is intended to be occupied for living purposes and is connected/associated with a
farm use. The Hearings Officer, considering the above -referenced definitions, finds that a
secondary accessory farm dwelling is a dwelling (place of occupancy) located on a farm that is
supportive of or is subordinate in rank/importance to a "primary dwelling."
In the context of an application for the location of a secondary accessory farm dwelling the
Hearings Officer finds (1) that the structure must be used in connection with farm use(s)
occurring on a property and (2) there is a primary dwelling to which the proposed secondary
accessory farm dwelling is additional to and subordinate.
The Hearings Officer finds that the "primary use" of a property, when considering "secondary
accessory farm use" is important. As noted in the Need findings an applicant for a secondary
accessory farm use must demonstrate that the proposed structure contributes to or is supportive
of a farm use on a subject property. The same can be said of a "secondary accessory farm
structure or dwelling.
The Hearings Officer finds that to have a secondary accessory farm dwelling there must be a
primary farm dwelling. The Hearings Officer finds that a primary farm dwelling, in the MUA-10
zone, is allowed as a matter of right and a secondary farm dwelling is only allowed as a conditional
use. Therefore, the right to have a secondary farm dwelling is derivative of the right to having a
15
primary farm dwelling. In the event. the primary farm dwelling would be removed or eliminated,
in some manner, the secondary accessory farm dwelling rights would no longer exist; a secondary
farm dwelling needs, for it to be legally recognizable, a primary farm dwelling.
4. Staff Issue: Occupant(s) of Secondary Accessory Farm Dwelling
"Can a primary farm operator reside in a secondary accessory farm dwelling?"
Staff expressed uncertainty as to whether or not "who" lived in a "primary farm dwelling" and
"who" lived in a "secondary farm dwelling" was relevant and/or important. The Hearings Officer
reviewed the record in this case and sections of the DCC the Hearings Officer considered relevant.
The Hearings Officer could find no provision of the DCC that unequivocally identified "who"
should live in a "primary farm dwelling" or "who" should live in a "secondary farm dwelling."
As noted in the preceding findings the Hearings Officer concluded that a secondary farm dwelling
has the right to exist because of the existence of a "primary farm dwelling." The right of a
secondary farm dwelling to exist is derivative of a primary farm dwelling. This right of existence
is not dependent upon "who" resides in either the "primary farm dwelling" or the "secondary
farm dwelling."
As alternative findings to the above paragraph the Hearings Officer finds there is no requirement
in the DCC that a "primary farm dwelling" be occupied by an "owner" of a property. It is
reasonable to assume, in some instances, that the primary farm dwelling could be occupied by a
lessee (person renting the farm property) or a farm employee (I.e., foreperson, farm operator,
farm worker). Likewise, the Hearings Officer found no requirement in the DCC that a "secondary
farm dwelling" be occupied by any class/category of person(s). The Hearings Officer finds an
owner, lessee, primary farm operator, secondary farm operator (if there is such a title) or farm
employee can all reside in a secondary accessory farm dwelling.
5. Staff Issue: Occupant(s) Stick-built/Primary Dwelling
"Can a stick -built dwelling or primary dwelling, as defined in DCC 18.04.030, be occupied by
farm help or employees?"
The Hearings Officer finds DCC 18.04.030 does not include a definition of "stick -built dwelling" or
"primary dwelling.$" There is reference to "primary dwelling" in the "primary or principal use"
DCC 18.04.030 definition. That reference is strictly temporal in nature; the dwelling that was first
located on a lot is the "primary dwelling." "
8 The phrase "Primary or principal use" is defined, in DCC 18.04.030, as "the first use to which property is or may be devoted, and
to which all other uses on the premises are accessory or secondary uses. As used relative to dwelling units, the primary dwelling
would be the first dwelling unit to be located on a specific parcel or lot."
16
The Hearings Officer could find nothing in the DCC either authorizing or prohibiting the
occupancy of a "primary farm dwelling" or a "secondary accessory farm dwelling" by farm help
or employees. Because there is no DCC reference to who may occupy a "stick -built dwelling" or
a "primary dwelling" the Hearings Officer finds there are no limitations on who may occupy such
structure. The Hearings Officer finds that a "stick -built dwelling" and also a "primary dwelling"
may be occupied by farm help and/or employees.
D. Approval Criteria Findings
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 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.
B. As part of the application process, the applicant shall certify:
1. That to the best of the applicant's knowledge, the property in question,
including any prior development phases of the property, is currently in
compliance with both the Deschutes County Code and any prior land use
approvals for the development of the property; or
2. That the application is for the purposes of brining the property into
compliance with the Deschutes County land use regulations and/or prior
land use approvals.
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;
2. 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
17
4. It is for emergency repairs to make a structure habitable or a road or
bridge to bear traffic.
E. Public Health and Safety.
1. For the purposes of this section, public health and safety means the
actions authorized by the permit would cause abatement of conditions
found to exist on the property that endanger life, health, personal
property, or safety of the residents of the property or the public.
2. Examples of that situation include, but are not limited to issuance of
permits to replace faulty electrical wiring, repair or install furnace
equipment; roof repairs; replace or repair compromised utility
infrastructure for water, sewer, fuel or power; and actions necessary to
stop earth slope failure.
FINDING: The Hearings Officer acknowledges that one or more code violations currently exist at
the Subject Property. The Hearings Officer finds that a current code violation exists related to the
manufactured home that is subject to this application and decision.
The Hearings Officer takes note of the Deschutes County Board of Commissioners' decision in
Tumalo Irrigation District (247-17-000775-ZC, 247-17-000776-PA). In that decision the Board
provided interpretive guidance to all Deschutes County Hearings Bodies related to DCC
22.20.015. Staff, in the Staff Report (pages 8, 9 & 10), pointed out to the Hearings Officer that
the following Board comments may be relevant to this case and decision:
"As DCC 22.20.015 is a relatively new provision first adopted in 2015 and frequently arises
in contested land use hearings, the Board takes this opportunity to provide interpretation
and guidance on the implementation of this provision.
As discussed more fully below, the Board interprets DCC 22.20.015 to require a sequential
three -step analysis.
1. Is there a previously "adjudicated violation" on the property?
2. Does the subject land use application present the best forum for adjudicating a
new allegation, i.e. is there time to investigate something more than a vague
allegation?
3. When there is an "adjudicated violation" or the property is found to be in violation
as part of the land use application process, can the land use permit nevertheless
be issued pursuant to DCC 22.20.015(D) and (E)?
First, the Board starts by noting that the primary purpose (and benefit) of DCC 22.20.015
is to address "adjudicated violations," i.e. violations that were already conclusively
determined through the normal applicable code enforcement process prior to an applicant
submitting a land use application. This interpretation is supported by the use of the past
tense in the codified definition of "violation" in DCC 22.20.015(C): "[a] violation means the
property has been determined to not be in compliance either through a prior decision by
the County or other tribunai, .., or through an acknowledgment by the alleged violator in
a signed voluntary compliance agreement ('VCA')" (emphasis added).
Second, differing from the "adjudicated violations" scenario described above, there are
cases where the Board anticipates that a County hearings body will need to determine if
a property is in violation during the land use application process. DCC 22.20.015(C)
addresses this possibility by including in the definition of "violation" the phrase "or
through the review process of the current application." However, the Board cautions that
County hearings bodies should take up this inquiry in rare cases because of the obvious
practical difficulties born from comingling the County"s land use application process with
the separate and distinct code enforcement process. For example, when a vague
allegation is alleged by an opponent late in the land use application process, there rarely
will be time to comprehensively investigate and appropriately adjudicate that violation
due to the 150-day time limit for issuing final decisions per ORS 215.427. Nothing within
DCC 22.20.015 requires a County hearings body to process a code complaint pursuant to
the County's adopted Code Enforcement Policy and Procedures Manual and conclusively
determine the status of a previously un-adjudicated violation solely on the basis that an
opponent submits a vague and unsubstantiated allegation during the land use application
process.
As such, the Board interprets DCC 22.20.015 to require something more than a vague
allegation (i.e., clear evidence of a violation) to compel the County hearings body to
determine if a property is in violation and the pending land use application process is the
appropriate forum in which to determine whether a violation exists. As discussed below,
this case does not provide a sufficient basis for determining what more is needed and the
Board thereby will wait for a subsequent case to establish a bright -line rule. Further, prior
to electing to adjudicate an allegation as part of the land use application process, the
Board interprets DCC 22.20.015 as necessitating the County hearings body to likewise
consider procedural, equitable, and legal issues, including but not limited to the time it
will take to conduct an investigation pursuant to the Code Enforcement Policy and
Procedures Manual, the severity of the alleged violation (i.e., clear cutting vegetation in a
wetland is severe while minimal solid waste that is not creating a public health hazard is
not), and the 150-day land use decision making clock.
Third, the Board takes this opportunity to reiterate what is self-evident in DCC 22.20.015.
A County hearings body's inquiry is not completed by simply noting a past "adjudicated
violation" or finding that a property is in violation. DCC 22.20.015(D) and (E) compel a
subsequent analysis to determine, for example, if the permit "protect[s] the public health
and safety" or "results in the property coming into full compliance." Further, the final
phrase of DCC 22.20.015(D)(1) notes that "coming into full compliance" also "includes]
sequencing of permits or other approvals as part of a voluntary compliance agreement."
The Board thereby interprets that aforementioned language to specifically allow a County
hearings body to approve a land use permit conditioned on the applicant subsequently
19
executing and compiying with a voluntary compliance agreement even for on unrelated
violation on the some property."
As referenced above, the Subject Property has active code compliance cases, 247-22-000400-CE,
247-22-000399-CE, and 247-22-000398-CE for multiple dwellings, non -approved disposal and RV
occupancy. Staff indicated that it believed that the RV occupancy has ceased on the Subject
Property. With consideration to the above -mentioned interpretive guidance from the BOCC, Staff
expressed its belief that it would be appropriate to use this land use application to resolve the
outstanding violation(s).
Staff noted that there are many options for the property owners to achieve compliance with the
zoning regulations of the MUA10 Zone; the request to establish the manufactured home as a
secondary accessory farm dwelling is one potential pathway. Other options include but are not
limited to; removal of the manufactured home from the Subject Property, decommission the
manufactured home to a non-residential use, decommission the existing stick -built dwelling to a
non-residential use, or remove the existing stick -built dwelling from the Subject Property.
The applicant elected, through the submittal of the subject application, to establish the
manufactured home as a secondary accessory farm dwelling. If approved this land use application
will address the manufactured home related code violation. Staff stated that the comments from
the Onsite Wastewater Division should be included as conditions of approval to ensure the
property owner receives any necessary permits as it pertains to the onsite wastewater system.
The Hearings Officer finds that the Board's DCC 22.20.015 interpretative guidance, as quoted
above, is supportive of a holding that this application, if approved, is an appropriate method of
addressing the manufactured home related code violation.
Title 18 of the Deschutes County Code, County Zoning
Chapter 18.32, Multiple Use Agricultural Zone (MUA10)
Section 18.32.030 Conditional Uses Permitted
The following uses may be allowed subject to DCC 18.128:
G. Manufactured home as a secondary accessory farm dwelling, subject to the
requirements set forth in DCC 18.116.070.
FINDING: The Hearings Officer incorporates the Preliminary Findings for Staff Issue: Class A
Manufactured Home [Section III.C.1.], Staff Issue: Need [Section III.C.2.], Staff Issue: Relationship
— Primary use/residence to Secondary Accessory Farm Dwelling [Section III.C.31, Staff Issue:
Occupants) of Secondary Accessory farm Dwelling (Section III.C.4], and Staff Issue: Occupant(s)
of Stick-built/Primary Dwelling [Section III.C.5] as additional findings for this approval criterion.
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The Hearings officer includes the following statements taken from Applicant's Burden of Proof
Statement in support of its application:
The applicant is requesting a Conditional Use to establish an existing manufactured home
as a secondary accessory farm dwelling, subject to the requirements set forth in Section
18.116.070 (one dwelling was permitted by Deschutes County in 2007, as the primary
residence of the subject property). The subject manufactured home was originally
permitted in 2010 by Deschutes County on the grounds of a temporary hardship permit
for a relative (TU-10-8). There was a change of circumstances with a different family
member needing to reside in the manufactured home. The manufactured home was
approved as a second hardship dwelling in 2015 (247-15-000238-TU).
The proposed use of the subject manufactured home, as a secondary accessory farm
dwelling, may be allowed as a Conditional Use in the MUA-10 Zone. The terms used in
County Zoning are defined in DCC 18.04.30, Definitions. The following definitions are relied
upon in this burden of proof:
"Accessory use or accessory structure means a use or structure incidental and
subordinate to the main use of the property, and located on the same lot as the
main use. Accessory uses include drilling for, and utilization of, low -temperature
geothermal fluid in conjunction with the main use of the property."
"Farm use means the current employment of land for the primary purpose of
obtaining a profit in money by raising, harvesting and selling crops or by the
feeding, breeding, management and sale of, or the produce of, livestock, poultry,
fur -bearing animals or honeybees or for dairying and the sale of dairy products or
any other agricultural or horticultural use or animal husbandry or any combination
thereof. "Farm use" includes the preparation, storage and disposal by marketing
or otherwise of the products or by-products raised on such land for human or
animal use. "Farm Use" also includes the current employment of the land for the
primary purpose of obtaining a profit in money by stabling or training equines,
including but not limited to, providing riding lessons, training clinics and schooling
shows. "Farm use" also includes the propagation, cultivation, maintenance and
harvesting of aquatic species and bird and animal species to the extent allowed by
the rules adopted by the State Fish and Wildlife Commission. "Farm use" includes
the on -site construction and maintenance of equipment and facilities used for the
activities described above. "Farm use" does not include the use of land subject to
the provisions of ORS chapter 321, except land used exclusively for growing
cultured Christmas trees as defined in ORS 215.203(3). Current employment of the
land for farm use also includes those uses listed under ORS 215.203(2)(b)."
The applicant is proposing to keep the existing manufactured home as an accessory farm
dwelling. The subject manufactured dwelling will be "incidental and subordinate to the
main farm use of the property." Incidental means to "being likely to ensure as a chance
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or minor consequences." Webster's New Collegiate Dictionary. Subordinate means
"inferior, submissive to or controlled by authority." Id. The use of these terms suggests
in the definition of accessory use or structure that there be a connection of the proposed
use or structure with the main use of the property. [footnote omitted]
The definition also requires the "main use of the property" be identified. The main use of
the subject property is currently an established lavender farm (Tumalo Lavender) that
has gross annual sales exceeding $80,000 (see Attachment E showing profit and loss for
Tumalo Lavender farm operations in 2021). The farm at the subject site consists of
approximately 5 acres of established lavender fields, greenhouses for plant
propagation/nursery growing of potted plants, commercial activity in conjunction with
the lavender farm with an operated store (open to the public with set hours during the
spring, summer, and fall months and by appointment during the winter months), a
production area for distillation of lavender plants and for making lavender products. The
activities described above require year-round farm help, seven days a week, with part-
time and full-time staff varying between 4 and up to 10 employees throughout the year.
One of the owners of the subject site who also serves primarily as a farm operator will be
residing within the existing manufactured home, while employee(s) of the farm will be
residing in the existing single-family dwelling. The manufactured home is supplied with
domestic water from the onsite private well and is connected to the on -site septic disposal
system servicing the primary single-family dwelling (see Attachment Fshowing certificate
of completion for septic system). The applicant is aware that the existing manufactured
home's use of the on -site septic disposal system was temporarily allowed under the
medical hardship permit, thus, Deschutes County approval of the manufactured home as
an accessory farm dwelling be conditionally based upon installment of an additional
county -approved on -site septic disposal system solely for the manufactured home. The
existing on -site disposal system will be used only by the existing primary dwelling that will
be used for farm help.
The applicant is employing the property for the primary purpose of obtaining a profit by
growing and harvesting lavender. The proposed accessory farm dwelling will be an
integral part of the current and future lavender farm operation as it serves as the farm
operator's residence, in addition to the primary single-family dwelling being utilized as
residence for farm help. Because of the daily year-round activities required for the
success and profitably of the farm, it is necessary to have farm help reside in both
dwellings (the accessory dwelling manufactured home in conjunction with the primary
single-family dwelling).
Similar to a family medical hardship dwelling, the applicant is applying for a conditional
use to allow a different type of "temporary use" for a manufactured home as an
accessory farm dwelling and as allowed in the acknowledged MUA-10 Zone.
22
The Applicant's request, in this case, is for a Conditional Use Permit to establish an existing
manufactured home as a secondary accessory farm dwelling.
Staff noted (Staff Report, page 13), the Title 18 definitions Section (DCC 18.04.030) do not define
"secondary accessory farm dwelling." Staff included a number of Title 18 definitions (Accessory
use or accessory structure, Agricultural Use, Dwelling Unit, Family, Manufactured Home, Primary
or Principal Use) to assist the Hearings Officer in interpreting "secondary accessory farm
dwelling." Consistent with the findings set forth in Staff Issue: Relationship — Primary
use/residence to Secondary Accessory Farm Dwelling (Section III, C.3.) the Hearings Officer
defines secondary accessory farm dwelling as a dwelling (place of occupancy) located on a farm
that is supportive of or is subordinate in rank/importance to a 'primary dwelling'."
The Hearings Officer finds, based upon substantial evidence in the record, that the primary use
of the Subject Property is for the cultivation and processing of lavender. The Hearings Officer
considered the historical use of the Subject Property as a lavender farm, the number of acres in
lavender cultivation, the onsite greenhouses and processing structure and retail location when
determining the primary use.
The Hearings Officer finds conflicting evidence in the record with respect to the "necessity" or
"need" of employees to live onsite. The Hearings Officer was persuaded by Applicant's record
submissions indicating that it is very important to have two farm operators onsite to assure the
efficient and successful operation of the lavender farm (propagation, processing and selling of
products). The Hearings Officer agrees with opponents that it may not be absolutely "necessary"
that two farm operators reside on the Subject Property; however, the Hearings Officer finds that
the likelihood of economic sustainability and growth of the lavender operation at the Subject
Property is substantially enhanced by having two onsite farm operators. The Hearings Officer
finds there is the requisite/required "connection" between the farm operation (lavender farm)
and a secondary accessory farm dwelling being located on the Subject Property.
The Hearings Officer found (Staff Issue: Class A Manufactured Home findings [Section III.C.1))
that DCC 18.116.070(A)(1) does not allow a Class A Manufactured Home to be used as a
secondary accessory farm dwelling. The Hearings Officer finds that DCC 18.32.030 G allows a
manufactured home to be used as a secondary accessory farm dwelling only if the requirements
of DCC 18.116.070 are met. The Hearings Officer finds Applicant's proposal to use a Class A
manufactured home as a secondary accessory farm dwelling does not meet the requirements of
DCC 18.116.070. The Hearings Officer finds this criterion is not met.
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.
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FINDING: The Applicant provided the following response in the submitted Burden of Proof
statement:
"The proposed accessory farm dwelling does not include buildings or structures to be
erected or enlarged. Therefore, this criterion does not apply."
The Hearings Officer finds that, per Staff's comments, the application in this case is being treated
as a new application for a secondary accessory farm dwelling. The Hearings Officer finds that
despite the fact that the specific structure subject to the Applicant's proposal is an "existing"
manufactured home this criterion is relevant. The Hearings Officer agrees with Staff that this
criterion can be met if a condition of approval is included that requires confirmation that the
manufactured home does not exceed 30 feet in height except as allowed by DCC 18.120.040.
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.
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.
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 Applicant provided the following response in the submitted Burden of Proof
statement:
"The proposed accessory farm dwelling will occupy the existing manufactured home
previously approved on the property as a family medical hardship dwelling. In its
approval of the hardship dwelling, the county found that the submitted plot plan for the
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hardship manufactured home met the required setbacks of DCC 18.32.040. The location
of the proposed use will remain on the exact some structure and footprint as the existing
manufactured home. Therefore, this section does not apply."
Staff (Staff Report, page 16) reiterated that this application was reviewed by Staff as an
application for a new use despite the manufactured home pre-existing condition. Staff concluded
that this criterion is applicable to the application. The Hearings Officer concurs.
The application materials include a site plan which shows the location of the manufactured home
on the Subject Property. The site plan shows the manufactured home is setback 30 feet from the
side (east) property line. The site plan did not include dimensions for other setbacks. However,
staff noted that the Manufactured Home Placement permit depicts a ±460-foot front (north) yard
setback, ±550-foot side (west) yard setback, and a ±107-foot rear (south) yard setback. Staff
concluded that there is nothing in the record to suggest the location of the manufactured home
has changed since permitted in 2010. Staff concluded that the proposed manufactured dwelling
complied with setbacks in (A) through (C).
The Hearings Officer finds that the evidentiary record included a copy of the Manufactured Home
Placement permit. The Manufactured Home Placement permit information can be considered
as evidence in the record of this case. Staff (Staff Report) recommended conditions of approval
to assure that the information contained in the Manufactured Home Placement permit remained
accurate. The Hearings Officer agrees with Staff's recommended conditions (see below).
Under DCC 18.116.180, the purpose of the solar setback is, "...to provide as much solar access as
practical during the winter solar heating hours to existing or potential buildings..." The northern
lot line of the Subject Property abuts Connarn Road, where future structural development is
impracticable. Staff determined that the area immediately adjacent to the north lot line is not a
location of a "Potential Structure," as defined in DCC 18.04.030. Staff concluded that the solar
protections of DCC 18.116.180 do not apply to this area and, therefore, the solar setback does
not apply to the manufactured dwelling. The Hearings Officer concurs with Staff's analysis and
conclusions related to solar setbacks.
General Setbacks
All buildings or structures shall meet the setback standards as outlined in DCC 18.16.070 (A—
C).
Building and Structural Code Setbacks
All buildings or structures shall comply with 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.
Section 18.32.060. Stream Setbacks
To permit better light, air, vision, stream pollution control, fish and wildlife areas and
25
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 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 health, 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.
Section 18.32.070. Rimrock Setback
Setbacks from rimrock shall be as provided in DCC 18.116.160.
FINDING: There is no rimrock in the project vicinity.
Chapter 18.56, Surface Mining Impact Area Combining Zone (SMIA)
FINDING: The Subject Property is located within the SMIA-X Zone in association with mine site
368. Mining at this site was completed in 1998 and subsequently mine site 368 was reclaimed as
confirmed by the Oregon Department of Geology and Mineral Industries on March 17, 2000. The
Hearings Officer finds the application is not subject to the provisions of Chapter 18.56.
Chapter 18.80, Airport Safety Combining Zone (AS)
Section 18.80.020. Application of Provisions.
The provisions of DCC 18.80.020 shall only apply to unincorporated areas located under
airport imaginary surfaces and zones, including approach surfaces, transitional
surfaces, horizontal surfaces, conical surfaces and runway protection zones. While DCC
18.80 identifies dimensions for the entire imaginary surface and zone, parts of the
surfaces and/or zones do not apply within the Redmond, Bend or Sisters Urban Growth
Boundaries. The Redmond Airport is owned and operated by the City of Redmond, and
located wholly within the Redmond City Limits.
Imaginary surface dimensions vary for each airport covered by DCC 18.80.020. Based on
the classification of each individual airport, only those portions (of the AS Zone) that
overlay existing County zones are relevant.
26
Public use airports covered by DCC 18.80.020 include Redmond Municipal, Bend
Municipal, Sunriver and Sisters Eagle Air. Although it is a public -use airport, due to its
size and other factors, the County treats land uses surrounding the Sisters Eagle Air
Airport based on the ORS 836.608 requirements for private -use airports. The Oregon
Department of Aviation is still studying what land use requirements will ultimately be
applied to Sisters. However, contrary to the requirements of ORS 836.608, as will all
public -use airports, federal law requires that the FAA Part 77 surfaces must be applied.
The private -use airports covered by DCC 18.80.020 include Cline Falls Airpark and
Juniper Airpark.
FINDING: The proposed development is located beneath the approach surface for the Redmond
Municipal Airport. Therefore, the provisions of this chapter apply.
Section 18.80.028. Height Limitations.
All uses permitted by the underlying zone shall comply with the height limitations in
DCC 18.80.028. When height limitations of the underlying zone are more restrictive than
those of this overlay zone, the underlying zone height limitations shall control. [ORS
836.619; OAR 660-013-0070]
A. Except as provided in DCC 18.80.028(B) and (C), no structure or tree, plant or
other object of natural growth shall penetrate an airport imaginary surface.
[ORS 836.619, OAR 660-013-0070(1)]
B. For areas within airport imaginary surfaces but outside the approach and
transition surfaces, where the terrain is at higher elevations than the airport
runway surfaces such that existing structures and permitted development
penetrate or would penetrate the airport imaginary surfaces, a local
government may authorize structures up to 35 feet in height.
C. Other height exceptions or variances may be permitted when supported in
writing by the airport sponsor, the Department of Aviation and the FAA.
Applications for height variances shall follow the procedures for other variances
and shall be subject to such conditions and terms as recommended by the
Department of Aviation and the FAA (for Redmond, Bend and Sunriver.)
FINDING: The proposed structure will have a maximum elevation of 3,302 feet above sea level.
Per DCC 18.80.022, the Redmond Municipal Airport has a runway elevation of 3,077 feet and the
approach surface for Airport above the Subject Property has an approximate elevation of 4,485
feet. The Hearings Officer finds the proposed development will not penetrate the imaginary
surfaces and that this criterion will be met.
Section 18.80.044. Land Use Compatibility.
Applications for land use or building permits for properties within the boundaries of this
overlay zone shall comply with the requirements of DCC 18.80 as provided herein. When
27
compatibility issues arise, the Planning Director or Hearings Body is required to take
actions that eliminate or minimize the incompatibility by choosing the most compatible
location or design for the boundary or use. Where compatibility issues persist, despite
actions or conditions intended to eliminate or minimize the incompatibility, the
Planning Director or Hearings Body may disallow the use or expansion, except where
the action results in loss of current operational levels and/or the ability of the airport to
grow to meet future community needs. Reasonable conditions to protect the public
safety may be imposed by the Planning Director or Hearings Body. (ORS 836.619; ORS
836.623(1); OAR 660-013-00801
A. Noise. Within airport noise impact boundaries, land uses shall be established
consistent with the levels identified in OAR 660, Division 13, Exhibit 5 (Table 2 of
DCC 18.80). Applicants for any subdivision or partition approval or other land use
approval or building permit affecting land within airport noise impact
boundaries, shall sign and record in the Deschutes County Book of Records, a
Declaration of Anticipated Noise declaring that the applicant and his successors
will not now, or in the future complain about the allowed airport activities at the
adjacent airport. In areas where the noise level is anticipated to be at or above
55 Ldn, prior to issuance of a building permit for construction of a noise sensitive
land use (real property normally used for sleeping or as a school, church,
hospital, public library or similar use), the permit applicant shall be required to
demonstrate that a noise abatement strategy will be incorporated into the
building design that will achieve an indoor noise level equal to or less than 55
Ldn. [NOTE: FAA Order 5100.38D provides that interior noise levels should not
exceed 45 decibels in all habitable zones.]
FINDING: The Subject Property is not within the noise impact boundary associated with the
Airport. This criterion does not apply.
B. Outdoor lighting. No new or expanded industrial, commercial or recreational use
shall project lighting directly onto an existing runway or taxiway or into existing
airport approach surfaces except where necessary for safe and convenient air
travel. Lighting for these uses shall incorporate shielding in their designs to
reflect light away from airport approach surfaces. No use shall imitate airport
lighting or impede the ability of pilots to distinguish between airport lighting
and other lighting.
FINDING: The proposed use is not an industrial, commercial, or recreational use. This criterion
also requires that no use shall imitate airport lighting or impede the ability of pilots to distinguish
between airport lighting and other lighting.
Staff (Staff Report, pages 20 & 21) recommended a condition of approval be included in any
decision which approves the application. The Hearings Officer concurs with Staff that this
criterion can be met if the following condition is included.
Outdoor Lighting.
No use shall imitate airport lighting or impede the ability of pilots to distinguish between
airport lighting and other lighting.
C. Glare. No glare producing material, including but not limited to unpainted metal
or reflective glass, shall be used on the exterior of structures located within an
approach surface or on nearby lands where glare could impede a pilot's vision.
FINDING: Staff (Staff Report, page 21) recommended a condition of approval be included in any
decision which approves the application. The Hearings Officer finds that with Staff's
recommended condition this criterion can be met.
Glare.
No glare producing material, including but not limited to unpainted metal or reflective glass,
shall be used on the exterior of structures located within an approach surface or on nearby
lands where glare could impede a pilot's vision.
D. Industrial emissions. No new industrial, mining or similar use, or expansion of an
existing industrial, mining or similar use, shall, as part of its regular operations,
cause emissions of smoke, dust or steam that could obscure visibility within
airport approach surfaces, except upon demonstration, supported by substantial
evidence, that mitigation measures imposed as approval conditions will reduce
the potential for safety risk or incompatibility with airport operations to an
insignificant level. The review authority shall impose such conditions as
necessary to ensure that the use does not obscure visibility.
FINDING: The proposed use is not an industrial, mining or similar use, or expansion of an existing
industrial, mining or similar use. This criterion does not apply.
E. Communications Facilities and Electrical Interference. No use shall cause or
create electrical interference with navigational signals or radio communications
between an airport and aircraft. Proposals for the location of new or expanded
radio, radiotelephone, and television transmission facilities and electrical
transmission lines within this overlay zone shall be coordinated with the
Department of Aviation and the FAA prior to approval. Approval of cellular and
other telephone or radio communication towers on leased property located
within airport imaginary surfaces shall be conditioned to require their removal
within 90 days following the expiration of the lease agreement. A bond or other
security shall be required to ensure this result.
FINDING: Staff (Staff Report, page 21) indicated that the proposed use in this case will not cause
or create electrical interference. The Hearings Officer concurs with this Staff analysis and
conclusion. This criterion can be met.
00-1
F. Limitations and Restrictions on Allowed Uses in the RPZ, Transitional Surface,
Approach Surface, and Airport Direct and Secondary Impact Areas.
For the Redmond, Bend, Sunriver, and Sisters airports, the land uses identified in
DCC 18.80 Table 1, and their accessory uses, are permitted, permitted under
limited circumstances, or prohibited in the manner therein described. In the
event of conflict with the underlying zone, the more restrictive provisions shall
control. As used in DCC 18.80.044, a limited use means a use that is allowed
subject to special standards specific to that use.
FINDING: The Subject Property is located within the approach surface associated with the
Redmond Airport. The proposal includes a secondary accessory farm dwelling; a residential use.
Based on DCC 18.80, Table 1, the proposed residential use may be allowed under limited
circumstances as outlined in note L (10) of Table 1. The Subject Property is approximately 29,000
feet from the outer edge of the Runway Protection Zone ("RPZ"). At this distance from the RPZ,
there is no limitation on the density of residential development. Therefore, the proposed
residential use will comply with DCC 18.80, Table 1 and the Hearings Officer finds the criterion is
met.
Section 18.80.054. Conditional Uses.
Uses permitted conditionally shall be those identified as conditional uses in the
underlying zone with which the AS Zone is combined, and shall be subject to all
conditions of the underlying zone except as provided in DCC 18.80.044.
FINDING: The proposed use is permitted conditionally in the underlying zone. The Hearings
Officer finds the Applicant's proposal is also permitted conditionally in the AS Zone. The Hearings
Officer finds that DCC 18.80.044 does not prohibit the proposed use.
Chapter 18.116, Supplementary Provisions
Section 18.116.050 Manufactured Homes
Manufactured Home Classes. For purposes of these regulations, manufactured homes
are divided into the following types:
A. A Class A manufactured home shall:
1. Have more than 1,000 square feet of occupied space in a double section
or larger multi -section unit;
2. Be placed on a foundation or support system, as specified by the
manufacturer. Skirting shall be required;
3. Have wheels, axles and hitch mechanisms removed;
4. Have utilities connected subject to the requirements of the Building Codes
Agency and manufacturer's specifications;
30
S. Bear an insignia of compliance with the Manufactured Housing and
Construction and Safety Standards Code as of June 15, 1976;
6. Have roofing materials of a type customarily used on site constructed
residences, including wood shakes or shingles, asphalt or fiberglass
shingles, corrugated mat finish colored metal and tile materials, but not
including high gloss corrugated aluminum or fiberglass panels. The roof
pitch shall be a minimum of two over 12; and
7. Have siding materials of a type customarily used on site -constructed
residences such as clapboard, horizontal vinyl or aluminum lap -siding,
cedar or other wood siding, brick or stone, and not including high gloss
finished material, corrugated metal or fiberglass, or metal or plastic
panels.
B. A Class B manufactured home shall:
1. Have at least 750 square feet of occupied space in a single, double,
expand or multi -section unit;
2. Be placed on a foundation, as specified by the manufacturer. Skirting
shall be required;
3. Have wheels, axles and hitch mechanisms removed;
4. Have utilities connected subject to the requirements of the Building Codes
Agency and manufacturer's specifications;
5. Bear an insignia of compliance with the Manufactured Housing and
Construction and Safety Standards Code as of June 15, 1976;
6. Have roofing materials of a type customarily used on site constructed
residences, including wood shakes or shingles, asphalt or fiberglass
shingles, corrugated matte finish colored metal and tile materials, but
not including high gloss corrugated aluminum or fiberglass panels. The
roof pitch shall be a minimum of two over 12; and
7. Have siding materials of a type customarily used on site constructed
residences such as clapboard, horizontal vinyl or aluminum lap siding,
cedar or other wood siding, brick or stone, and not including high gloss
finished material, corrugated metal or fiberglass, or metal or plastic
panels.
C. A Class C manufactured home shall:
1. Have at least 576 square feet of occupied space, excluding tipouts and
hitches;
2. Be placed on a foundation or support system, as specified by the
manufacturer. Skirting shall be required;
3. Bear an insignia of compliance with the Manufactured Housing and
Construction and Safety Standards Code as of June 15, 1976, or bear the
Oregon Department of Commerce "Insignia of Compliance'; and
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4. Have utilities connected subject to the requirements of the Building Codes
Agency and manufacturer's specifications.
FINDING: The Burden of Proof states,
"The placement of the manufactured dwelling had its final inspection approved in 2010.
The applicant believes the subject manufactured home still meets the code as required for
a Class A manufactured home described above."
Applicant and Staff agree that the manufactured home that is subject to this application is a Class
A manufactured home. The Hearings Officer finds no substantial evidence or persuasive evidence
in the record to suggest otherwise. The Hearings Officer finds the manufactured home subject
to this application is a Class A manufactured home.
Section 18.116.070 Placement Standards for Manufactured Homes.
A. As defined in DCC 18.116.050, Class A and B manufactured homes shall be
permitted as follows, subject to the requirements of the underlying zone:
1. In the following zones, except where there is a Conventional Housing
Overlay Zone (CH): Any EFU zone, MUA 10, F-1, F 2, RR 10, any area zoned
as an unincorporated community (as that term is defined herein), RSR M,
RSR S, and FP as the primary dwelling, and R I and SM as a caretaker's
residence.
FINDING: The Hearings Officer incorporates the Preliminary Findings for Staff Issue: Class A
Manufactured Home (Section III.C.1.), Staff Issue: Need (Section III.C.2.), Staff Issue: Relationship
— Primary use/residence to Secondary Accessory Farm Dwelling (Section III.C.3.), Staff Issue:
Occupant(s) of Secondary Accessory farm Dwelling (Section III.C.4.), and Staff Issue: Occupant(s)
of Stick-built/Primary Dwelling (Section III.C.5.) as additional findings for this approval criterion.
DCC 18.32.030 sets forth the uses that may (if standards are met) be approved as conditional
uses in the MUA-10 zone. The Hearings Officer concluded that the Applicant's proposal to locate
a Class A manufactured home within the MUA-10 zoned Subject Property cannot be approved if
the requirements of DCC 18.116.070 (A)(1) were not satisfied/met. The Hearings Officer found,
based upon the representation of Applicant, that the manufactured home sought to be approved
as a secondary accessory farm dwelling is a Class A manufactured home. The Hearings Officer
found that a Class A manufactured home can be approved, under DCC 18.116.070 (A)(1) "only"
as a primary residence. The Hearings Officer finds that Applicant represented the primary
residence on the Subject Property was located within the barn structure.
Staff suggested that this criterion could be met with a condition of approval. The Hearings Officer
disagrees. The Hearings Officer finds that Applicant's proposal is for the Class A manufactured
home to be the secondary accessory farm dwelling; not some other class of manufactured home.
The Hearings Officer finds that adopting Staff's recommended condition is a modification of
W
Applicant's proposal and the Hearings Officer does not have such authority. The Hearings Officer
finds Applicant's proposal does not satisfy the requirements of DCC 18.116,070 and therefore
does not satisfy the requirements of DCC 18.32.030 G.
2. In manufactured home parks and subdivisions.
FINDING: The Subject Property is not within a mobile home park or subdivision. The Subject
Property does not contain a mobile home park or subdivision. Burden of Proof states,
3. As permitted in DCC 18.116.080 and 18.116.090.
FINDING: DCC 18.116.080 is titled "Manufactured Home Or RV As A Temporary Residence On
Individual Lot During Construction." DCC 18.116.090 is titled "A Manufactured Home OR
Recreational Vehicle as a Temporary Residence for Medical Condition." The application in this
case is for approval of a secondary accessory farm dwelling. The application is not for either a
temporary residence for use during construction or a temporary vehicle to be used for a medical
condition. The Hearings Officer finds this criterion is not relevant.
4. Class A and B manufactured homes are not permitted in any historic
district or on any historic site.
FINDING: The Hearings Officer finds the Subject Property is not located in an inventoried historic
district. The Hearings Officer finds this criterion is not relevant.
B. Class C manufactured homes shall be permitted as follows:
1. Except as otherwise allowed in DCC 18.116.070, on parcels 10 acres in size or
larger.
2. As a secondary accessory farm dwelling.
3. In manufactured home parks and manufactured home subdivisions.
4. As permitted in DCC 18.116.080 and 18.116.090.
5. As a replacement to an existing non -conforming manufactured home
destroyed by fire or other natural act, or as an upgrade to an existing
manufactured home.
6. In the following subdivisions: Rockview 11, Tetherow Crossing, Chaparral
Estates, Crystal Acres, Hidden Valley Mobile Estates, Johnson Acres, Seven
Peaks, Sun Mountain Ranches, Deschutes River Homesites Rimrock Addition,
Happy Acres, Rancho El Sereno, Whispering Pines, Bend Cascade View
Estates, Raintree, Holmes Acres, La Pine Meadows North, Pine Crest
Ranchettes, Dora's Acres, Pierce Tracts, Roan Park, South Forty, Tomes,
Crooked River Ranch, Dale Acres, Replat/Hillman, Lake Park Estates, Mary K.
Falls Estates.
33
7. Class C manufactured homes are not permitted in any historic district or on
any historic site.
FINDING: The Applicant proposes to establish an existing Class A manufactured home as a
secondary accessory farm dwelling. The Hearings Officer finds these criteria relate only to Class
C manufactured homes. The Hearings Officer finds these criteria are not relevant.
Chapter 18.128, Conditional Use
Section 18.128.010, Operation.
A. A conditional use listed in DCC Title 18 shall be permitted, altered or denied in
accordance with the standards and procedures of this title; DCC Title 22, the
Uniform Development Procedures Ordinance; and the Comprehensive Plan.
B. In the case of a use existing prior to the effective date of DCC Title 18 and
classified in DCC Title 18 as a conditional use, any change in use or lot area or an
alteration of structure shall conform with the requirements for a conditional use.
FINDING: The proposed conditional use is reviewed in accordance with the standards and
procedures of this title; DCC Title 22, the Uniform Development Procedures Ordinance; and the
Comprehensive Plan. No prior use now classified as a conditional use is being modified by this
proposal.
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:
FINDING: This criterion applies "except for those conditional uses permitting individual single
family dwellings..." The first issue the Hearings Officer must address is whether or not an
application for a secondary accessory farm dwelling is an application for permitting a "single
family dwelling?"
DCC 18.04.030 defines "dwelling, single family" as:
"a detached building containing one dwelling unit and designed for occupancy by one family
only, not including temporary structures such as tents, teepees, travel trailers and other
similar structures."
The Hearings Officer finds that the Class A manufactured home that is being proposed as a
secondary accessory farm dwelling is a single detached dwelling unit designed to be occupied by
one family only. The Hearings Officer finds that the Class A manufactured home is not a
34
temporary structure similar to a tent, teepee, travel trailer or other similar structure. Therefore,
the Hearings Officer finds that the Class A manufactured home meets the definitional
requirements to be considered a "dwelling, single family." The Hearings Officer finds that a
"dwelling, single family" is the same as a "single family dwelling."
The Hearings Officer, based upon the above stated definitional findings, concludes that the
application for a manufactured home to be approved as a conditional use as a secondary
accessory farm dwelling falls within the single family dwelling exception for this criterion.
The Hearings Officer, as alternative findings to those set forth above, finds that this criterion is
relevant and undertakes evaluation of the factors set forth in DCC 18.128.015, General Standards
Governing Conditional Uses.
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 conditional use proposed under this application is the establishment of an existing
manufactured home as a secondary accessory farm dwelling.
The Applicant provided the following response in the submitted Burden of Proof statement:
"The site is suitable for the proposed conditional use as an accessory farm dwelling
because of its on -site proximately to the use of the property as a commercial lavender
farm. The operating characteristic of the proposed use of the manufactured home is to
serve as the on -site residence for the primary farm operators and part owner of the
lavender farm. The site is accessed by an existing driveway off of Connarn Road. The
location of the proposed conditional use of the for accessory farm dwelling is within the
same existing manufactured home placed on the same location of the property and found
suitable for a temporary dwelling."
Comments from governmental agencies and the general public did not identify any site, design,
or operating characteristic deficiencies related to the proposed secondary accessory farm
dwelling. Comments were received from participants related to impacts created by the
commercial lavender operation. As noted in the Preliminary Findings this application is for a
manufactured home to be used as a secondary accessory farm dwelling. Impacts from the
commercial lavender operation are not relevant to a decision in this case. Further, participants
indicated that if this application were to be approved then other proximate property owners
would be making "similar requests" and if those are approved then negative impacts, such as
increased traffic, could result. The Hearings Officer finds the "similar requests" argument is not
relevant to this case.
The Hearings Officer finds that there is no substantial or persuasive evidence in the record that
35
demonstrates that approval of the manufactured home as a secondary accessory farm dwelling
at the Subject Property would have negative impacts based on the location, design or operating
characteristics of the manufactured home.
2. Adequacy of transportation access to the site; and
FINDING: Transportation access is provided to the site by Connarn Road, a County -maintained
rural local roadway. Comments from the Deschutes County Road Department and Deschutes
County Transportation Planner did not identify any transportation infrastructure deficiencies.
Comments from other agencies and the general public did not identify any transportation
infrastructure deficiencies. As noted by the Deschutes County Transportation Planner, the
Subject Property has two driveway permits approved by Deschutes County (247-19-001534-DA
and 247-SW4543) and thus complies with the access permit requirements of DCC 17.48.210(A).
The subject application does not propose additional driveways.
The Hearings Officer reiterates that the request in this case involves a request for approval of a
manufactured home to be used as a secondary accessory farm dwelling. The only traffic impacts
relevant to this case are those attributable to the addition of the secondary accessory farm
dwelling. Traffic impacts from other farm uses, including the commercial farm use, are not
subject to reconsideration in this case.
The Hearings Officer finds the written comments from the Deschutes County Road Department
and the Deschutes County Transportation Planner are credible and constitute substantial
evidence in support of the conclusion that the transportation access to the Subject Property and
to the proposed secondary accessory farm dwelling is adequate.
3. The natural and physical features of the site, including, but not limited
to, general topography, natural hazards and natural resource values.
FINDING: The Subject Property is generally level and presents no topographical constraints on
the proposed manufactured home to be used as a secondary accessory farm dwelling. The
Deschutes County Natural Hazards Mitigation Plan (2015) identifies drought, earthquake, flood,
landslide, volcanic, wildfire, windstorm, and winter storm hazards in the County. Of these,
wildfire is of special concern regarding the suitability of the use. Natural resource values typically
include agricultural soils, forest lands, wildlife and their habitats, wetlands, and natural water
features. There are no Goal 5 inventoried natural resources on the site that merit protection.
Further, the property does not contain any mapped wetlands or special flood hazard areas. The
Hearings Officer finds, based upon the evidence in the record, that this criterion can be met.
Comments from agencies and the general public did not identify any site unsuitability due to
general topography, natural hazards, or natural resource values. The Hearings Officer finds,
based upon the evidence in the record, that this criterion can be met.
W.
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 Applicant provided the following response to DCC 18.128.015(B&C) in the
submitted Burden of Proof statement:
"The proposed use is compatible with existing and projected uses on surrounding
properties based on the existing location of the manufactured home, driveway and its
operating characteristics as the on -site home of the primary farm operator and partial
owner.
The applicant and owners understand that approval of the proposed accessory farm
dwelling may include conditions ensuring that the standards will be met. This may include
a limitation that only farm help may occupy the dwellings."
Pursuant to the factors listed in DCC 18.128.015(A), staff opined (Staff Report, pages 28 & 29)
that the proposed use (manufactured home as a secondary accessory farm dwelling) would be
unsuitable if the siting, design, and operating characteristics of the use significantly adversely
impacted existing and projected uses on surrounding properties. Typically, potential adverse
impacts include visual, noise, dust, and odor impacts. Staff (Staff Report, page 29) also noted that
the proposed use would be unsuitable if access to the Subject Property would significantly
adversely impact existing and projected uses on surrounding properties. Lastly, Staff (Staff
Report, page 29) noted that the proposed use would be unsuitable if it significantly adversely
impacts off -site topography, natural hazards, or natural resource values.
The Hearings Officer reiterates that the proposal in this case is a request for approval of a
secondary accessory farm dwelling on the Subject Property. The proposal, and therefore this
decision, does not include reconsideration or review of any of the existing approved farm uses
on the Subject Property. Included in the existing approved farm uses is the growing, processing
and commercial sales of lavender products. The impacts from these approved uses is not
relevant to this approval criterion.
The Hearings Officer finds the proposed location of the manufactured home will not impact
surrounding properties related to the design of the manufactured home or the operating
characteristics associated with the manufactured home. The Hearings Officer finds there is no
evidence in the record demonstrating that approval of a manufactured home as a secondary
accessory farm dwelling on the Subject Property could be expected to cause any significant visual,
noise, dust or odor impacts. The Hearings Officer finds no evidence in the record to demonstrate
that the proposed location of the manufactured home will have any impact on off -site
topography, natural hazards or natural resource values.
The Hearings Officer finds that approval of the application to locate a manufactured home on the
Subject Property as a secondary accessory farm dwelling is compatible with surrounding
properties.
37
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 will be met.
FINDING: To the extent this decision is conditioned under DCC 18.128 criterion, the Hearings
Officer notes such conditions are authorized by this criterion.
Section 18.128.020, Conditions.
In addition to the standards and conditions set forth in a specific zone or in DCC 18.124,
the Planning Director or the Hearings Body may impose the following conditions upon
a finding that additional restrictions are warranted.
A. Require a limitation on manner in which the use is conducted, including
restriction of hours of operation and restraints to minimize environmental
effects such as noise, vibrations, air pollution, glare or odor.
B. Require a special yard or other open space or a change in lot area or lot
dimension.
C. Require a limitation on the height, size or location of a structure.
D. Specify the size, number, location and nature of vehicle access points.
E. Increase the required street dedication, roadway width or require additional
improvements within the street right of way.
F. Designate the size, location, screening, drainage, surfacing or other
improvement of a parking or loading area.
G. Limit or specify the number, size, location, height and lighting of signs.
H. Limit the location and intensity of outdoor lighting and require shielding.
1. Specify requirements for diking, screening, landscaping or other methods to
protect adjacent or nearby property and specify standards for installation and
maintenance.
J. Specify the size, height and location of any materials to be used for fencing.
K. Require protection and preservation of existing trees, vegetation, water
resources, wildlife habitat or other significant natural resources.
L. Require that a site plan be prepared in conformance with DCC 18.124.
FINDING: To the extent that any conditions of approval contained in this decision require
improvement to the Subject Property beyond the minimum standards of DCC Title 18, the
Hearings Officer finds such conditions are authorized by this section.
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 18.128.045 through DCC 18.128.370.
FINDING: As described herein, the proposed conditional use is reviewed in accordance with the
standards of the zone in which it is located and with the standards and conditions set forth in
m
DCC 18.128.045 through DCC 18.128.370, as applicable.
IV. CONCLUSION
The application in this case is to locate a Class A manufactured home on the Subject Property to
be used as a secondary accessory farm dwelling. Secondary accessory farm dwellings are allowed
in the MUA-10 zone so long as all relevant conditional use approval criteria are met. DCC
18.32.030 G states a manufactured home may be approved as a secondary accessory farm
dwelling conditional use in the MUA-10 zone "subject to the requirements set forth in DCC
18.116.070."
Applicant represented that a "stick -built" structure (part of a barn) is the "primary dwelling" on
the Subject Property and the proposed manufactured home would be the "secondary accessory
farm dwelling." Applicant represented that the manufactured home proposed to be used as the
secondary accessory farm dwelling is a Class A manufactured home.
The Hearings Officer interpreted DCC 18.116.070 (A)(1) to require Class A manufactured homes
(with exceptions for CH zoned property and also R-1 and SM zones which allow caretaker's
residences) to be used as a "primary dwellings." The Hearings Officer concluded that Applicant's
proposed use of a Class A manufactured home does not satisfy the requirements of DCC
18.116.070.
The Hearings Officer found that all relevant approval criteria were met by the application in this
case excepting for DCC 18.116.070. On the basis that the application did not meet the
requirements of DCC 18.116.070 the application must be denied.
V. DECISION
Denial of Applicant's request for Secondary Accessory Farm Dwelling Conditional Use permit at
the Subject Property.
Deschutes County Hearings Officer
?�,6r7 ��WMA�
Gregory J. Frank, Hearings Officer
Date: June 14, 2023
This decision becomes final twelve (12) days after the date mailed, unless appealed by a party
of interest. To appeal, it is necessary to submit a Notice of Appeal, the base appeal deposit plus
20% of the original application fee(s), and a statement raising any issue relied upon for appeal
with sufficient specificity to afford the Board of County Commissioners an adequate opportunity
to respond to and resolve each issue.
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APPEAL APPLICATION - BOARD OF COUNTY COMMISSIONERS
FEE:
EVERY NOTICE OF APPEAL SHALL INCLUDE:
1. A statement describing the specific reasons for the appeal.
2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board
stating the reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a
request for de novo review by the Board, stating the reasons the Board should provide the de
novo review as provided in Section 22.32.027 of Title 22.
4. If color exhibits are submitted, black and white copies with captions or shading delineating
the color areas shall also be provided.
It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the
County Code. The Notice of Appeal on the reverse side of this form must include the items listed above.
Failure to complete all of the above may render an appeal invalid. Any additional comments should be
included on the Notice of Appeal.
Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC
Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning
those issues.
Appellant's Name (print):
Tumalo Lavender Property LLC
Phone: (541 ) 383-2441
Mailing Address: 3318 Rademacher Place City/State/Zip: Bend, OR 97703
Email Address: holly@tumalolavender.com
Land Use Application Being Appealed:
247-23-000162-CU
Property Description: Township 16 Range 12 —Section 9 Tax Lot 501
Appellant's Signature: �— �.� Date:
June 26, 2023
By signing this application and paying the appeal deposit, the appellant understands and agrees that
Deschutes County is collecting a deposit for hearing services, including "whether to hear" proceedings.
The appellant will be responsible for the actual costs of these services. The amount of any refund or
additional payment will depend upon the actual costs incurred by the county in reviewing the appeal.
Except as provided in section 22.32.024, appellant shall provide a complete transcript of any hearing
appealed, from recordings provided by the Planning Division upon request (there is a $5.00 fee for each
recording copy). Appellant shall submit the transcript to the planning division no later than the close of
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O Box 6005, Bend, OR 97708-6005
Q, (541) 388-6575 @ cdd@deschutes.org @ www.deschutes.org/cd
the day five (5) days prior to the date set for the de novo hearing or, for on -the -record appeals, the date
set for receipt of written records.
NOTICE OF APPEAL
Please see attachment 1 for statement notice of appeal
(This page may be photocopied if additional space is needed.)
ATTACHMENT 1
June 26, 2023
Haleigh King, Associate Planner
Deschutes County Community Development Department
117 NW Lafayette Avenue
Bend, Oregon 97703
Haleigh.King@deschutes.org
SUBJECT: Deschutes County File Nos. 247-23-000162-CU — BOCC Appeal Application
Ms. King,
On June 14, 2023, Deschutes County Hearings Officer Gregory Frank (the "Hearings Officer") issued a decision
of denial for a conditional use permit for a secondary accessory farm dwelling in the Multiple Use Agricultural
10-acre ("MUA-10") zone submitted by Tumalo Lavender Property LLC, the applicant ("Applicant"). The
Applicant files this appeal pursuant to Deschutes County Code ("DCC") Chapter 22.32. Further, the Applicant
request that the Board of County Commissioners ("BOCC") hear the appeal "limited de novo" as allowed by DCC
22.32.027(B)(4).1 Specifically, the Applicant asks the BOCC to limit the issues on appeal to only the following:
Interpretation of DCC 18.116.070 (Hearing Officer's Decision pages 10-13)
Application of that interpretation to DCC 18.32.030(G) (Hearing Officer's Decision pages 20-23)
Application of DCC 18.116.070 to subject application (Hearing Officer's Decision pages 32-33)
All three aforementioned issues overlap and stem from the Hearing Officer's interpretation of DCC 18.116.070
governing the different classes of manufactured housing allowed in different zones throughout the County. The
Hearings Officer specifically found that "all relevant approval criteria were met by the application in this case
excepting for DCC 18.116.070." Accordingly, if the BOCC does not agree with the Hearings Officer's
interpretation of DCC 18.116.070, the subject Application should be approved with the conditions noted by staff
and the Hearings Officer.
The BOCC should review the Hearings Officer decision because a careful examination of DCC 18.116.070 reveals
that the provision is vague, inconsistent, and fails to provide clear guidelines for land use decisions. This was
even stated by the Hearings Officer in his written decision. The County hasn't clearly outlined the definition nor
the distinction of the different classifications of manufactured homes and where they are and are not allowed.
In fact, there is not even a clear distinction within the industry regarding the classification of manufactured
homes. The lack of clarity in the DCC has resulted in conflicting interpretations and arbitrary determinations
1 DCC 22.32.027(B)(4) provides as follows:
"4. The Board may, at its discretion, determine that it will limit the issues on appeal to those listed in an
appellant's notice of appeal or to one or more specific issues from among those listed on an applicant's notice of
appeal."
which will have profound ramifications on future land use decisions for the County. The ambiguity of the
language used in the code has led to confusion among property owners and planning authorities staff.
The Applicant understands that when accepting appeals, the BOCC prefers to conduct a de novo review.
However, DCC 22.32.027(B)(4) would not be included in the Deschutes County Code unless exceptional
circumstances at times warrant limited de novo review. The Applicant asserts that this is one of those
exceptional circumstances. Notably, no opposing party raised DCC 18.116.070. Instead, County staff on their
own volition sought the Hearings Officer's interpretation of this clearly ambiguous provision. The Hearing
Officer, in turn, asked staff to provide clarification on the issue during the open record period following the
initial public hearing. Staff provided that additional information in a letter in the record dated May 23, 2023. In
that letter, staff specifically suggested a broad interpretation of DCC 18.116.070 that would have led to the
approval of the subject application. Nevertheless, the Hearings Officer rejected staff's proffered interpretation,
resulting in the denial of the application and necessitating the subject appeal.
Although the Applicant recognizes that County staff intended no ill will and did not set out to derail the subject
application, there is no doubt that County staff did elect to utilize these quasi-judicial proceedings (paid for by
the Applicant) to gain clarity on what staff otherwise acknowledge was an ambiguous DCC provision. In so
doing, the Hearing Officer issued an interpretation of DCC 18.116.070 that presumably is not favored by even
County staff, resulting in the unintentional denial of the subject application. The Applicant requests a limited de
novo review specifically to limit the complexity and scope of the appeal proceedings before the BOCC, thereby
making the appeal economically viable for the Applicant. The Applicant understands that precedent -setting
public policy decisions are sometimes made during quasi-judicial land use proceedings, but the Applicant simply
cannot afford to pay twice for the same proceedings that in this case are intended to benefit the entire
Deschutes County Community.
Additionally - and perhaps most importantly - if the County's intention going forward is to rely on an
interpretation of the ambiguous and poorly phrased DCC 18.116.070 rather than amend that code provision,
the Applicant asserts that such an interpretation should be issued by the BoCC rather than by an appointed
Hearings Officer. The Applicant means no disrespect to Mr. Frank. But as noted above, the Hearings Officer
ignored the context of DCC 18.116.070 and the County -wide implications of limiting the types of manufactured
homes for certain land uses, thereby limiting a necessary and affordable housing option for many County
constituents. The Applicant suspects that these unintended policy ramifications negatively influencing the
County's already strained housing supply are precisely why County staff advocated for a broader interpretation
of DCC 18.116.070.
To clarify, the Applicant is not requesting a "record review" as contemplated by DCC 22.32.027(B)(1).z Instead,
the Applicant's understanding is that by accepting the appeal limited de novo, the record in this matter will
nevertheless be re -opened to include additional evidence and testimony in addition to the record already
developed before staff and the Hearings Officer as required by DCC 22.32.030(D).3 However, any additional
evidence, testimony, or argument raised by the Applicant, other parties, or County staff must then be directed
at the issues identified in the BOCC's order accepting the limited de novo appeal.
2 DCC 22.32,027(B)(1) provides as follows:
"1. Review before the Board, if accepted, shall be on the record except as otherwise provided for in DCC
22.32.027:'
3 DCC 22.32.030(D) provides as follows:
"D. The record of the proceeding from which appeal is taken shall be a part of the record on appeal."
2
The Applicant notes that the BOCC has plenty of time for these appeal proceedings because the statutory
deadline is not until September 17, 2023. In the unlikely event that more time is needed, the Applicant
commits to working with County staff to ensure that the BOCC has the necessary time to consider this
important issue.
Last, if accepting this appeal, the Applicant asks that the BOCC waive the transcript requirement as allowed by
DCC 22.32.024(D). I thank you for your consideration of this appeal application request for a BOCC hearing.
Sincerely,
Holly Olson
Tumalo Lavender Property, LLC
18.116.050 Manufactured Homes
Manufactured Home Classes. For purposes of these regulations, manufactured homes are divided into
the following types:
A. A Class A manufactured home shall:
1. Have more than 1,000 square feet of occupied space in a double section or larger multi -
section unit;
2. Be placed on a foundation or support system, as specified by the manufacturer. Skirting
shall be required;
3. Have wheels, axles and hitch mechanisms removed;
4. Have utilities connected subject to the requirements of the Building Codes Agency and
manufacturer's specifications;
5. Bear an insignia of compliance with the Manufactured Housing and Construction and
Safety Standards Code as of June 15, 1976;
6. Have roofing materials of a type customarily used on site constructed residences,
including wood shakes or shingles, asphalt or fiberglass shingles, corrugated mat finish
colored metal and the materials, but not including high gloss corrugated aluminum or
fiberglass panels. The roof pitch shall be a minimum of two over 12; and
7. Have siding materials of a type customarily used on site -constructed residences such as
clapboard, horizontal vinyl or aluminum lap -siding, cedar or other wood siding, brick or
stone, and not including high gloss finished material, corrugated metal or fiberglass, or
metal or plastic panels.
B. A Class B manufactured home shall:
1. Have at least 750 square feet of occupied space in a single, double, expand or multi -
section unit;
2. Be placed on a foundation, as specified by the manufacturer. Skirting shall be required;
3. Have wheels, axles and hitch mechanisms removed;
4. Have utilities connected subject to the requirements of the Building Codes Agency and
manufacturer's specifications;
5. Bear an insignia of compliance with the Manufactured Housing and Construction and
Safety Standards Code as of June 15, 1976;
6. Have roofing materials of a type customarily used on site constructed residences,
including wood shakes or shingles, asphalt or fiberglass shingles, corrugated matte
finish colored metal and the materials, but not including high gloss corrugated aluminum
or fiberglass panels. The roof pitch shall be a minimum of two over 12; and
7. Have siding materials of a type customarily used on site constructed residences such as
clapboard, horizontal vinyl or aluminum lap siding, cedar or other wood siding, brick or
stone, and not including high gloss finished material, corrugated metal or fiberglass, or
metal or plastic panels.
C. A Class C manufactured home shall:
1. Have at least 576 square feet of occupied space, excluding tioouts and hitches;
2. Be placed on a foundation or support system, as specified by the manufacturer. Skirting
shall be required;
3. Bear an insignia of compliance with the Manufactured Housing and Construction and
Safety Standards Code as of June 15, 1976, or bear the Oregon Department of
Commerce "Insignia of Compliance"; and
4. Have utilities connected subject to the requirements of the Building Codes Agency and
manufacturer's specifications.
D. A Class D manufactured home shall:
1. Have more than 320 square feet of occupied space;
2. Be placed on a foundation or support system, as specified by the manufacturer. Skirting
shall be required; and
3. Have utilities connected subject to requirements of the Building Codes Agency and
manufacturer's specifications.
HISTORY
Adopted by Ord. 81-042 §1-3 and 4 on 121311981
Amended by Ord. 89-004 §§3 and 5 on 3/24/1989
Amended by Ord. 91-005 §38-41 on 31411991
Amended by Ord. 91-017 §§1-3 and 4 on 411711991
Amended by Ord. 91-038 §4 on 913011991
Amended by Ord. 93-043 §§198-E on 8/25/1993
Amended by Ord. 2000-033 §7 on 121612000
Amended by Ord. 2001-013 §1 on 211412001
Amended by Ord. 2004-013 §12 on 912112004
18.116.070 Placement Standards For Manufactured Homes
A. As defined in DCC 18.116.050, Class A and B manufactured homes shall be permitted as
follows, subject to the requirements of the underlying zone:
1. In the following zones, except where there is a Conventional Housing Overlay Zone
(CH): Any EFU zone, MUA-10, F-1, F-2, RR-10, any area zoned as an unincorporated
community (as that term is defined herein), RSR-M, RSR-5, and FP as the primary
dwelling, and R-I and SM as a caretaker's residence.
2. In manufactured home parks and subdivisions.
3. As permitted in DCC 18.116.080 and 18.116.090.
4. Class A and B manufactured homes are not permitted in any historic district or on any
historic site.
B. Class C manufactured homes shall be permitted as follows:
1. Except as otherwise allowed in DCC 18.116.070, on parcels 10 acres in size or larger.
2. As a secondary accessory farm dwelling.
3. In manufactured home parks and manufactured home subdivisions.
4. As permitted in DCC 18.116.080 and 18.116.090.
5. As a replacement to an existing non -conforming manufactured home destroyed by fire or
other natural act, or as an upgrade to an existing manufactured home.
6. In the following subdivisions: Rockview II, Tetherow Crossing, Chaparral Estates, Crystal
Acres, Hidden Valley Mobile Estates, Johnson Acres, Seven Peaks, Sun Mountain
Ranches, Deschutes River Homesites Rimrock Addition, Happy Acres, Rancho El
Sereno, Whispering Pines, Bend Cascade View Estates, Raintree, Holmes Acres, La
Pine Meadows North, Pine Crest Ranchettes, Dora's Acres, Pierce Tracts, Roan Park,
South Forty, Tomes, Crooked River Ranch, Dale Acres, Replat/Hillman, Lake Park
Estates, Mary K. Falls Estates.
7. Class C manufactured homes are not permitted in any historic district or on any historic
site.
C. An exception may be granted by the Planning Director or Hearings Body to allow a Class C
manufactured home to be placed in a subdivision which is not listed in DCC 18.116.070(B)(6),
where all of the following conditions exist:
1. The manufactured home is specifically designed or has been substantially modified for
wheelchair or disabled access (disabled accessible manufactured home).
2. There are Class C manufactured homes in the subdivision located within one -quarter
mile of the lot upon which the manufactured home will be placed.
3. The disabled accessible manufactured home and lot upon which the manufactured
home is to be placed were purchased by the applicant prior to February 22, 1989.
D. Class D manufactured homes shall be permitted as follows:
1. In manufactured home parks and subdivisions.
2. As permitted in DCC 18.116.080 and 18.116.090.
3. Class ® manufactured homes are not permitted in any historic district or on any historic
site.
HISTORY
Adopted by Ord. PL-15 on 111111979
Amended by Ord. 81-042 §5 on 121311981
Amended by Ord. 89-004 §§3 and 5 on 312411989
Amended by Ord. 89-014 §1 on 511011989
Amended by Ord. 89-016 §1 on 711211989
Amended by Ord. 91-005 §§42 and 43 on 3/4/1991
Amended by Ord. 91-020 §1 on 5/29/1991
Amended by Ord. 96-003 §8 on 3/27/1996
Amended by Ord. 2000-033 §8 on 121612000
REVIEWED
LEGAL COUNSEL
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Accepting Review of Hearings
Officer's Decision in File No. 247-23-000162- * ORDER NO. 2023-029
CU.
WHEREAS, on June 14, 2023, the Hearings Officer denied File No. 247-23-000162-CU; and
WHEREAS, on June 26, 2023, Tumalo Lavender Farm, LLC, the Appellant, appealed (Appeal
No. 247-23-000516-A) the Deschutes County Hearings Officer's Decision on File No. 247-23-
000 1 62-CU; and
WHEREAS, Sections 22.32.027 and 22.32.035 of the Deschutes County Code ("DCC") allow
the Deschutes County Board of County Commissioners ("Board") discretion on whether to hear
appeals of Hearings Officer's decisions; and
WHEREAS, the Board has given due consideration as to whether to review this application
on appeal; now therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. That it will hear on appeal Appeal No. 247-23-000516-A pursuant to Title 22
of the DCC and other applicable provisions of the County land use ordinances.
Section 2. The appeal shall be heard limited de novo.
Section 3. Staff shall set a hearing date and cause notice to be given to all persons or
parties entitled to notice pursuant to DCC 22.24.030 and DCC 22.32.030.
Section 4. Pursuant to Section 22.32.024, the Board waives the requirement that the
appellants provide a complete transcript for the appeal hearing.
Section 5. Pursuant to DCC 22.32.035(D), to date the only documents placed before and
considered by the Board are the notice of appeal, recommendations of staff, and the record
ORDER No. 2023-029
developed before the lower hearings body for File No. 247-23-000162-CU as presented at the
following website:
https://www.deschutes.orL7/247- - 4 '1 1 1
Going forward, all documents further placed before, and not rejected by, the Board shall be added
to the aforementioned website, and that website shall be the Board's official repository for the
record in this matter.
DATED this I� day of 2023.
ATTEST:
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
ANTHONY DEBONE, Chair
PAiTI ADAIR, Vice Chair
PHIL CHANG, Commissioner
ORDER No. 2023-029
BOARD OF
•
MEETING DATE: July 12, 2023
SUBJECT: Consideration to hear an appeal of a Hearings Officer decision on a Conditional
Use Permit to establish a secondary accessory farm dwelling in the Multiple Use
Agricultural Zone
RECOMMENDED MOTION:
The Board will decide whether to hear an appeal of a Hearings Officer decision on a
Conditional Use Permit to establish a secondary accessory farm dwelling in the Multiple
Use Agricultural Zone (MUA10) - Deschutes County Land Use File Nos. 247-23-000162-CU,
23-516-A.
BACKGROUND AND POLICY IMPLICATIONS:
Staff referred the Conditional Use Permit application to a public hearing, which was held on
May 16, 2023 before the Hearings Officer. On June 14, 2023, the Hearings Officer issued a
decision which denied the proposal.
The applicant filed a timely appeal of the Hearings Officer's Decision (reference appeal No.
247-23-000516-A) and requests that the application be reviewed by the Board of County
Commissioners. More detailed information is included in the staff memo.
BUDGET IMPACTS:
None
ATTENDANCE:
Haleigh King - Associate Planner
jac:ob Ri:)pE!r - Principal Plariner
MEETING DATE:
August 7, 2023
SUBJECT: Preparation for Public Hearing: Repeal of Conventional Housing Combining Zone
RECOMMENDED MOTION:
Work session in preparation for a public hearing.
BACKGROUND AND POLICY IMPLICATIONS:
Staff will conduct a work session with the Board in preparation for an August 9, 2023,
public hearing concerning legislative amendments to repeal the Convention Housing
Combining Zone. The full record is available at the project website:
httDS://www.deschutes.org/cd/page/247-23-000391-ta-%E2%80%93-repeal-conventional-
housing-combining-zone
BUDGET IMPACTS:
None
ATTENDANCE:
Rachel Vickers, Associate Planner
MEMORANDUM
TO: Deschutes County Board of Commissioners ("Board")
FROM: Rachel Vickers, Associate Planner
DATE: August 2, 2023
SUBJECT: Work Session: Conventional Housing Combining Zone Repeal
Staff will conduct a work session with the Board on August 7, 2023, in preparation for an August 9,
2023, public hearing concerning legislative amendments to repeal the Conventional Housing
Combining Zone (file no. 247-23-000391-TA). The full record is available at the project website:
https://www.deschutes.org/cd/page/247-23-000391 -ta-%E2%80%93-repeal-conventional-ho
combininzone.
Staff submitted a 35-day Post -Acknowledgement Plan Amendment (PAPA) notice to the Department
of Land Conservation and Development on May 17, 2023. Staff presented the proposed amendments
to the Planning Commission at a public hearing on June 22, 2023'. Attached to this memorandum are
the proposed text amendments and findings, which have not changed since the Planning
Commission hearing. Within the proposed amendments, added language is shown underlined and
deleted shown as strikethrough. The public hearing will be conducted in -person, electronically, and
by phone.
1. BACKGROUND
The CHC Zone serves as an overlay zone and restricts placement of manufactured or prefabricated
homes in specific areas of the County with the following stated purpose:
"To provide a variety of residential environments in rural areas by maintaining areas reserved for
conventional and modular housing permanently attached to real property'.
Deschutes County adopted the CHC Zone in 1979 as part of Ordinance PL-15, the County's Zoning
Ordinance. The CHC Zone applies to three areas - an area to the east of Tumalo, west of Tumalo and
east of Bend as shown in the map in Attachment 3. From staff research, this overlay zone appears to
have been created by petition of property owners, although specific findings for the intent of the zone
and its location are not available in county records.
1 https•//www.deschutes.org/bc-pc/page/planning-commission-30
In 2020, the County produced a Rural Housing Profile, which outlined several potential strategies for
removing barriers to housing production in rural Deschutes County. The repeal of the CHC Zone was
listed as a strategy as it would give those properties the potential to provide affordable housing in
the form of mobile or manufactured homes, which are less expensive alternatives to stick -built or
modular housing.
In addition to this, on March 23, 2022, Oregon House Bill 4064 became effective. The bill amended
several sections of Oregon Revised Statute which clarified that local governments may not prohibit
siting of prefabricated structures in residential zones where traditional single-family homes or other
common dwelling types were allowed. Although the amendments were primarily targeted toward
cities and urban growth boundaries, Section 4, ORS 197.312 OR was revised to limit both city and
county jurisdictions' ability to prohibit manufactured prefabricated homes in residential zones.
The purpose of these amendments is twofold: to implement the recommendation of the 2020
housing profile to allow for an affordable housing option where stick -built residential structures are
otherwise allowed and also to bring the Deschutes County Code into compliance with HB 4064 by
specifically removing this combining zone from residentially zoned properties.
II. PROPOSAL
This is a legislative text amendment to Deschutes County Code (DCC), Title 18 County Zoning, to
repeal Chapter 18.92, Conventional Housing Combining (CHC) Zone.
Staff is proposing the following revisions to complete this text amendment:
• Repeal of section 18.92 Conventional Housing Combining Zone from the Deschutes County
Code
• Zoning Map Amendment to repeal the Conventional Housing Combining Zone
The applicant, in this case Deschutes County Community Development, has provided the draft text
amendments and findings as attachments to this memorandum. The findings summarize the
amendments and demonstrate compliance with the Statewide Planning Goals, and applicable
policies of the Deschutes County Comprehensive Plan.
111. PLANNING COMMISION RECOMMENDATION
Notice of Public Hearing was mailed on July 14, 2023 to all property owners within the Conventional
Housing zone as well as those property owners within 250 feet of the zone. The Notice of Public
Hearing was also published in the Bend Bulletin on July 16, 2023. Staff received one comment in
opposition to the proposed amendments prior to the Planning Commission hearing. The comment
raised concerns regarding the availability of time for community members to respond, lack on
information on the origin of the zone, and its actual impact on affordable housing.
The Deschutes County Planning Commission held the public hearing on June 22, 2023. No oral or
written testimony was provided during the public hearing.
Page 2 of 3
The Planning Commission closed the oral and written portions of the hearing on July 22, 2023 and
voted 4-1 to approve the proposed amendment.
IV. NEXT STEPS
A public hearing with the Board is scheduled for Wednesday, August 9, 2023.
ATTACHMENTS:
1. Proposed Text Amendments
2. Proposed Findings
3. CHC Zone Map
4. Draft Ordinance 2023-034
5. Draft Ordinance 2023-034 Emergency
Page 3 of 3
Attachment 1: Proposed Text Amendments
Removed
New
CHAPTER 18.92 CONVENTIONAL HOUSING COMBINING ZONE; CH (Repealed)
(Repealed by Ord. 2023-XXX on X/XX/XXXX)
1 Q 97 01 9 P Frew
1 g 92 nzn oorr„i+t d I kwl;
1 Q 92 030 Use Wmitati RS
Attachment 2: Proposed Findings 247-23-000391-TA
FINDINGS
PROPOSAL SUMMARY
This is a legislative text amendment to Deschutes County Code (DCC), Title 18 County Zoning, to
repeal Chapter 18.92, Conventional Housing Combining (CHC) Zone.
Staff is proposing the following revisions to complete this text amendment:
• Repeal of section 18.92 Conventional Housing Combining Zone from the Deschutes County
Code
• Zoning Map Amendment to repeal the Conventional Housing Combining Zone
11. BACKGROUND
The CHC Zone serves as an overlay zone and restricts placement of manufactured or prefabricated
homes in specific areas of the County with the following stated purpose:
'To provide a variety of residential environments in rural areas by maintaining areas reserved for
conventional and modular housing permanently attached to real property"
Deschutes County adopted the CHC Zone in 1979 as part of Ordinance PL-15, the County's Zoning
Ordinance. The CHC Zone applies to three areas - an area to the east of Tumalo, west of Tumalo
and east of Bend as shown in the map in Attachment 2. From staff research, this overlay zone
appears to have been created by petition of property owners, although specific findings for the
intent of the zone and its location are not available in county records.
In 2020, the County produced a Rural Housing Profile, which outlined several potential strategies
for removing barriers to housing production in rural Deschutes County. The repeal of the CHC Zone
was listed as a strategy as it would give those properties the potential to provide affordable housing
in the form of mobile or manufactured homes, which are less expensive alternatives to stick -built
or modular housing.
In addition to this, on March 23, 2022, Oregon House Bill 4064 became effective. The bill amended
several sections of Oregon Revised Statute which clarified that local governments may not prohibit
siting of prefabricated structures in residential zones where traditional single-family homes or other
common dwelling types were allowed. Although the amendments were primarily targeted toward
cities and urban growth boundaries, Section 4, ORS 197.312 OR was revised to limit both city and
county jurisdictions' ability to prohibit manufactured prefabricated homes in residential zones.
1 DCC 18.92.010
Page 1 of 8 - EXHIBIT X TO ORDINANCE NO. 2023-xxx
The CHC Zone impacts approximately 505 properties. The tables below break down the zoning of
the properties within the CHC Zone. Staff notes that of the 505 properties, 381 of them have at least
some portion of the property within a resource zone and 128 have at least some portion of the
property within a residential zone.
Single Base Zoned Properties
Zone
Number of properties
Resource Zones
Exclusive Farm Use (EFU)
353
Forest Use (F1 /F2)
4
Open Space and Conservation (OSC)
3
Total Resource Zoned Properties: 360
Residential Zones
Multiple Use Agricultural (MUA10)
83
Rural Residential (RR10)
10
Tumalo Residential (TUR/TORS)
7
Total Residential Zoned Properties: 100
Total Single Zoned Properties in CHC Zone: 460
Multiple Base (Split) Zoned Properties
Zones
Number of properties
EFU and F1 /F2
1
EFU and MUA 10
3
EFU and RR10
1
EFU and FP
13
EFU, FP, and MUA10
2
EFU, FP, and TUR/TUR5
1
MUA10 and Flood Plain (FP)
16
Surface Mine (SM) and FP
3
TUR/TUR5 and FP
4
MUA10, TUR5, and FP
1
Total Split Zoned Properties in CHC Zone: 45
The purpose of these amendments is twofold: to implement the recommendation of the 2020
housing profile to allow for an affordable housing option where stick -built residential structures are
otherwise allowed and also to bring the Deschutes County Code into compliance with HB 4064 by
specifically removing this combining zone from residentially zoned properties.
Page 2 of 8 - EXHIBIT X TO ORDINANCE NO. 2023-xxx
M. REVIEW CRITERIA
Deschutes County lacks specific criteria in DCC Titles 18, 22, or 23 for reviewing a legislative text
amendment. Nonetheless, since Deschutes County is initiating the amendment, the County bears
the responsibility for justifying that the amendments are consistent with Statewide Planning Goals
and its existing Comprehensive Plan.
IV. FINDINGS
CHAPTER 22.12, LEGISLATIVE PROCEDURES
Section 22.12.010
Hearing Required
FINDING: This criterion will be met because a public hearing was held before the Deschutes
County Planning Commission on June 22, 2023 and Board of County Commissioners on August 9,
2023.
Section 22.12.020, Notice
Notice
A. Published Notice
1. Notice of a legislative change shall be published in a newspaper of general
circulation in the county at least 10 days prior to each public hearing.
2. The notice shall state the time and place of the hearing and contain a statement
describing the general subject matter of the ordinance under consideration.
FINDING: This criterion will be met as notice was published in the Bend Bulletin newspaper for the
Planning Commission public hearing on June 22, 2023, and the Board of County Commissioners'
public hearing on August 23, 2023.
R. Posted Notice. Notice shall be posted at the discretion of the Planning Director and
where necessary to comply with ORS 203.045.
FINDING: Posted notice was determined by the Planning Director not to be necessary.
C. Individual notice. Individual notice to property owners, as defined in DCC
22.08.010(A), shall be provided at the discretion of the Planning Director, except as
required by ORS 215.503.
FINDING: In accordance with the above criterion, individual notice was sent to all property owners
within the Conventional Housing Combining Zone, as well as those property owners within 250 of
the Zone's boundaries in order to comply with DCC 22.24.030(A)(2).
Page 3 of 8 - EXHIBIT X TO ORDINANCE NO. 2023-xxx
D. Media notice. Copies of the notice of hearing shall be transmitted to other
newspapers published in Deschutes County.
FINDING: Notice was provided to the County public information official for wider media
distribution. This criterion is met.
Section 22 12 030 Initiation of Legislative Changes
A legislative change may be initiated by application of individuals upon payment of
required fees as well as by the Board of County Commissioners.
FINDING: The application was initiated by the Deschutes County Planning Division at the direction
of the Board of County Commissioners, and has received a fee waiver. This criterion is met.
Section 22.12.040 Hearings Body
A. The following shall serve as hearings or review body for legislative changes in this
order:
1. The Planning Commission.
2. The Board of County Commissioners.
B. Any legislative change initiated by the Board of County Commissioners shall be
reviewed by the Planning Commission prior to action being taken by the Board of
Commissioners.
FINDING: The Deschutes County Planning Commission held the initial public hearing on June 22,
2023. The Board then held a public hearing on August 9, 2023. These criteria are met.
Section 22.12.050, Final Decision
All legislative changes shall be adopted by ordinance
FINDING: The proposed legislative changes will be implemented by Ordinance No. 2023-034 upon
approval and adoption by the Board of County Commissioners. This criterion will be met.
A. Statewide Planning Goals and Guidelines
Goal 1: Citizen Involvement: The amendments do not propose any changes to the County's citizen
involvement program. Notice of the proposed amendments were provided to the Bulletin for each
public hearing as well as in accordance with DCC 22.12.020 (C).
Goal 2: Land Use Planning: This goal is met because ORS 197.610 allows local governments to initiate
post acknowledgments plan amendments (PAPA). An Oregon Land Conservation and Development
Department 35-day notice was initiated on May 18, 2023 The Planning Commission held a public
Page 4 of 8 - EXHIBIT X TO ORDINANCE NO. 2023-xxx
hearing on June 22, 2023 and the Board of County Cornrnissioners held a public hearing on August
9, 2023. Staff finds compliance with Goal 2 is met.
Goal 3: Agricultural Lands: The proposed amendments are to repeal the Conventional Housing
Combining Zone which restricts manufactured and pre -fabricated homes. This repeal would
remove this restriction, without changing any other requirements for establishing a dwelling within
the Exclusive Farm Use Zone. Adverse impacts to farming practices are not anticipated under these
amendments as the change only pertains to the style of the residential dwelling to be placed onto
the property. Oregon Revised Statute and Rule do not contain specific requirements for restrictions
on manufactured or pre -fabricated dwellings in the Exclusive Farm Use Zones, and this text
amendment will not alter other existing requirements for dwellings in the Exclusive Farm Use Zone.
Staff finds compliance with Goal 3 is met.
Goal 4: Forest Lands: The proposed amendments are to repeal the Conventional House Combining
Zone which restricts manufactured and pre -fabricated homes. This repeal would remove this
restriction, without changing any other requirements for establishing a dwelling within the Forest
Use Zone. Adverse impacts to forest practices are not anticipated under these amendments and no
such impacts have been identified in the record. Oregon Revised Statute and Rule do not contain
specific requirements for restrictions on manufactured or pre -fabricated dwellings in the Forest Use
Zones, and this text amendment will not alter other existing requirements for dwellings in the Forest
Use Zone. Staff finds compliance with Goal 4 is met.
Goal 5: Open Spaces Scenic and Historic Areas and Natural Resources: Goal 5 is to protect natural
resources and conserve scenic and historical areas and open spaces. OAR 660-023-0250(3) states
that local governments are not required to apply Goal 5 in consideration of a PAPA unless the PAPA
affects a Goal 5 resource. The proposed amendment is not seeking to change any requirements in
a Goal 5 resource. Staff finds compliance with Goal 5 is met.
Goal 6• Air Water and Land Resources Quality: The proposed text amendments do not propose to
change the County's Plan policies or implementing regulations for compliance with Goal 6. Staff
finds compliance with Goal 6 is met.
Goal 7• Areas Subject to Natural Disasters and Hazards: The proposed text amendments do not
propose to change the County's Plan or implementing regulations regarding natural disasters and
hazards; therefore, they comply. Staff finds compliance with Goal 7 is met.
Goal 8: Recreational Needs: The text amendments do not propose to change the County's Plan or
implementing regulations regarding recreational needs. Staff finds compliance with Goal 8 is met
Goal 9: Economic Development: Goal 9 and its implementing regulations focus on economic analysis
and economic development planning required in urban Comprehensive Plans to ensure there is
adequate land available to realize economic growth and development opportunities. Although not
directly tied to the requirements of Goal 9, staff finds that the proposed amendments comply with
the intent of this goal by providing affordable housing options for community members. Staff finds
compliance with Goal 9 is met.
Page 5 of 8 - EXHIBIT X TO ORDINANCE NO. 2023-xxx
Goal 10: Housing: The proposed text amendment relates to Goal 10 as it is removing restrictions on
the types of housing that can be placed in residential zones. As stated above, the proposed
amendment is in response to the adoption of House Biii 4604 which prohibits County's from placing
restrictions on manufactured and pre -fabricated housing. The text amendment is also partly in
response to the 2020 Housing Profile as a method to remove barriers to housing production within
the County. Staff finds compliance with Goal 10 is met.
Goal 11: Public Facilities and Services: The proposed text amendments do not propose to change
the County's Plan or implementing regulations regarding public facilities and services. Staff finds
compliance with Goal 11 is met.
Goal 12: Transportation: Goal 12 is to provide and encourage a safe, convenient and economic
transportation system. The proposed text amendments will not change the functional classification
of any existing or planned transportation facility or standards implementing a functional
classification system. Staff finds compliance with Goal 12 is met.
Goal 13: Energy Conservation: The proposed text amendments do not propose to change the
County's Plan or implementing regulations regarding energy conservation. Staff finds compliance
with Goal 13 is met.
Goal 14: Urbanization: The proposed text amendments do not propose to change the County's Plan
or implementing regulations regarding urbanization. Staff finds compliance with Goal 14 is met.
Goals 15 through 19 are not applicable to the proposed text amendments because the County does
not contain these types of lands.
D. Deschutes County Comprehensive Plan
Chapter 1 Comprehensive Planning:
This chapter sets the Goals and Policies of how the County will involve the community and conduct
land use planning. As described above, the proposed regulations will be discussed at work sessions
with the Board of County Commissioners, as well as to the Planning Commission, which is the
County's official committee for public involvement. Both will conduct separate public hearings.
These actions also satisfy the Goals and relevant Policies of Section 1.3, Land Use Planning Policies.
Goal 1 of this section is to "maintain an open and public land use process in which decisions are
based on the objective evaluation of facts." Staff, the Planning Commission, and the Board reviewed
the text amendments. Staff finds that compliance with Chapter 1 of the Comprehensive Plan is met.
Chapter 2 Resource Management:
This chapter sets the Goals and Policies of how the County will protect resource lands, including but
not limited to, Agriculture and Forest as well as Water Resources and Environmental Quality.
Section 2.3, Forest Land Policies
Page 6 of 8 - EXHIBIT X TO ORDINANCE NO. 2023-xxx
Goal 1 Protect and maintain forest lands for multiple uses, including forest products, watershed
protection, conservation, recreation; and wildlife habitat protection.
Policy 2.3.3, To conserve and maintain impacted forest lands, retain Forest 2 zoning for those
lands with the following characteristics:
a. Consist predominantly of ownerships developed for residential or non -forest uses;
b. Consist predominantly of ownerships less than 160 acres;
c. Consist of ownerships generally contiguous to tracts containing less than 160 acres
and residences, or adjacent to acknowledged exception areas; and
d. Provide a level of public facilities and services, including roads, intended primarily
for direct services to rural residences.
Forest Lands, states that the goal is to protect forests and their economic benefits. Within this
section, the future of residential development is discussed and the challenge of allowing residential
fragmentation within the forest zones. Staff notes that the proposed text amendments, which
would remove restrictions on placing manufactured homes in an area where residences are
approved, will have no effect on this Chapter of the Comprehensive Plan and the current
requirements for developing a residence on Forest Zoned lands. Staff finds compliance with this
policy is met.
Chapter 3 Rural Growth Management:
Section 3.3, Rural Housing
Goal 1 Maintain the rural character and safety of housing in unincorporated Deschutes County
Policy 3.3.5, Maintain the rural character of the County while ensuring a diversity of housing
opportunities, including initiating discussions to amend State Statute and/or Oregon
Administrative Rules to permit accessory dwelling units in Exclusive Farm Use, Forest and
Rural Residential zones
The CHC Zone places a restriction on manufactured and pre -fabricated dwellings. The repeal of this
Combining Zone will align with the section of the Comprehensive Plan as it will allow housing
diversity in all areas of the County where residences are permitted. Staff finds compliance with this
policy is met.
Chapter 4 Urban Growth Management:
Section 4.7 Tumalo Community Plan
Residential Area Policies
11. Plan and zone for a diversity of housing types and densities suited to the capacity of the
land to accommodate water and sewage requirements.
The CHC Zone covers several properties located in the unincorporated community boundary of
Tumalo, as such this policy applies. The CHC Zone is proposing to remove a restriction on the type
of housing placed in residential zones and will promote greater diversity in housing type. The
Page 7 of 8 - EXHIBIT X TO ORDINANCE NO. 2023-xxx
density, water, and sewage requirements are not proposed to change with this proposal. Staff finds
compliance with this policy is met.
Page 8 of 8 - EXHIBIT X TO ORDINANCE NO. 2023-xxx
REVIEWED
LEGAL COUNSEL
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF
An Ordinance Amending Deschutes County Code
Title 18, Chapter 92, to Repeal the Conventional
Housing Combining Zone.
*
*
WHEREAS, the Board of County Commissioners directed Desc.
Department staff to initiate amendments (Planning Division File No. 24
Code Title 18, Chapter 92, Conventional Housing Combining Zone; and
WHEREAS, the Deschutes County Plannin
2023 and forwarded to the Deschutes County Board
of approval; and
WHEREAS,
concluded that the pi
therefore,
as follow
as described ij
underlined and
Section 2.
reference herein.
this matter aft
the proposed
For Recording Stamp Only
,OREGON
ORDINANCE NO. 2023-034
County Community Development
000391-TA) to Deschutes County
to proposed changes on June 22,
("Board") a 4-1 recommendation
a duly noticed public hearing on August 9, 2023 and
anges to the Deschutes County Code Title 18; now,
OF DESCHUTES COUNTY, OREGON, ORDAINS
?NDMENT. Chapter 18.92, Conventional Housing Combining Zone, is repealed to read
"A", attached hereto and by this reference incorporated herein, with new language
to be deleted in taiket r-e g"h.
1S.°' The Board adopts as its findings, Exhibit "B" attached and incorporated by
PAGE 1 OF 2 - ORDINANCE NO.2023-034
Dated this of , 2023 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
Recording Secretary
Date of 1" Reading:
Date of 2nd Reading:
Commissioner
Anthony DeBone
Patti Adair
Philip Chang
Effective date: day
ANTHONY DEBONE, Chair
PATTI ADAIR, Vice Chair
PHILIP CHANG
day of , 2023.
day of
Record of
Yes
'2023.
Adoption Vote:
No Abstained Excused
, 2023.
PAGE 2 OF 2 - ORDINANCE NO.2023-034
REVIEWED
LEGAL COUNSEL
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Deschutes County Code
Title 18, Chapter 92, to Repeal the Conventional
Housing Combining Zone. * ORDINANCE NO. 2023-034
*
*
WHEREAS, the Board of County Commissioners directed Deschutes County Community Development
Department staff to initiate amendments (Planning Division File No. 247-23-000391-TA) to Deschutes County
Code Title 18, Chapter 92, Conventional Housing Combining Zone; and
WHEREAS, the Deschutes County Planning Commission reviewed the proposed changes on June 22,
2023 and forwarded to the Deschutes County Board of County Commissioners ("Board") a 4-1 recommendation
of approval; and
WHEREAS, the Board considered this matter after a duly noticed public hearing on August 9, 2023 and
concluded that the public will benefit from the proposed changes to the Deschutes County Code Title 18; now,
therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. Chapter 18.92, Conventional Housing Combining Zone, is repealed to read
as described in Exhibit "A", attached hereto and by this reference incorporated herein, with new language
underlined and language to be deleted in *�'��h.
Section 2. FINDINGS. The Board adopts as its findings, Exhibit "B" attached and incorporated by
reference herein.
Section 3. EMERGENCY. This Ordinance being necessary for the immediate preservation of the public
peace, health, safety, and welfare, an emergency is declared to exist, and this Ordinance becomes effective
immediately.
PAGE 1 OF 2 - ORDINANCE NO.2023-034
Dated this of , 2023 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
Recording Secretary
Date of I" Reading:
ANTHONY DEBONE, Chair
PATTI ADAIR, Vice Chair
PHILIP CHANG
day of , 2023.
Date of 2°a Reading: day of , 2023.
Record of Adoption Vote:
Commissioner Yes No Abstained Excused
Anthony DeBone _
Patti Adair
Philip Chang
Effective date: day of 12023.
PAGE 2 OF 2 - ORDINANCE NO.2023-034
Proposed City of Mountain View, Oregon -Public Land Ownership
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March 29, 2023