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2023-298-Minutes for Meeting August 09,2023 Recorded 9/20/2023i ES COG2� BOARD OF COMMISSIONERS 1300 NW Wall Street, Bend, Oregon (541) 388-6570 9:00 AM Recorded in Deschutes County CJ2023-298 Steve Dennison, County Clerk Commissioners' Journal 09/20/2023 4:46:25 PM 2023-298 FOR RECORDING STAMP ONLY BOCC MEETING MINUTES WEDNESDAY August 9, 2023 Barnes Sawyer Rooms Live Streamed Video Present were Commissioners Tony DeBone, Patti Adair and Phil Chang. Also present were Nick Lelack, County Administrator; Kim Riley, Assistant County Counsel; and Brenda Fritsvold, BOCC Executive Assistant. 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 9:00 a.m. PLEDGE OF ALLEGIANCE CITIZEN INPUT: None Commissioner Adair reported that a local family is hosting a Ukranian family with three children and offered to put interested persons in touch with the organizer. CONSENT AGENDA: Before the Board was Consideration of the Consent Agenda. Approval of Deschutes County Behavioral Health Advisory Board Bylaws 2. Approval of a Memorandum of Understanding with the American Federation of State, County and Municipal Employees to formalize Juvenile Community Justice Position Pay Differentials BOCC MEETING AUGUST 9, 2023 PAGE 1 OF 13 3 4 5 6 7 8 9 Approval of a contract with Iris Telehealth to provide tele-psychiatric treatment services Approval of Document No. 2023-740 to authorize the purchase of a Caterpillar 938M Loader for the Solid Waste Department Approval of a lease with Getz Properties, LLC for space at 2100 NE Wyatt Court Approval of Document No. 2023-646, an amendment extending the services contract with Clean Earth Environmental Solutions, Inc. Approval of an amendment to the contract with HHPR, Inc. for Phase 2 of the Downtown Campus Parking Project Approval of a Notice of Intent to Award a contract for the paving of Old Bend - Redmond Hwy: US 20 to Tumalo Rd Project Approval of a Notice of Intent to Award a contract for engineering services for the Hamehook Road Bridge Replacement Project 10. Approval of Resolution No. 2023-047, appropriating a $300,000 grant from the Oregon Department of Energy for a biomass facility at Mt. Bachelor 11. Acceptance of an Oregon Department of Energy Community Renewable Energy Grant Award 12, Approval of an amendment to a grant from the Oregon Health Authority (#173133-10) 13. Consideration of Board Signature on letters reappointing Alysha DeLorto, Chris Perry, Drew Norris, Jared Jeffcott and Jared Earnest for service on the Deschutes County Ambulance Service Area Committee 14. Approval of the minutes of the June 21, 26 and 28 and July 5, 10 and 12, 2023 BOCC meetings CHANG: Move approval of the Consent Agenda as presented ADAIR: Second VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried Commissioner Chang said having served on the advisory board for the State's community renewable energy grant program, he was pleased to see funds being BOCC MEETING AUGUST 9, 2023 PAGE 2 OF 13 awarded to innovative projects including the Mt. Bachelor biomass facility and another project at the Deschutes County Fairgrounds. ACTION ITEMS: 15. First reading of a revised ordinance amending Deschutes County Code relative to camping and other sleeping associated activity on public property Dave Doyle, County Counsel, advised a new first reading of this ordinance as revisions were made to the proposed text after the initial first reading to add a new section 11.04.065 concerning "extra jurisdictional application." Doyle explained the purpose of this section is to make it expressly clear that enforcement on public non -county property in the unincorporated areas would only be allowed upon agreement with the governmental entity (whether city, state or federal) which owned the property. Commissioner Chang asked to know the status of any negotiations happening with respect to this provision, saying these should be conducted at the Board level and not behind closed doors. Doyle shared that County Legal responded to a request from an attorney representing the Forest Service who asked for a copy of the draft code. Staff further provided the requestor with previous communications regarding Elk Lake and the understancing which was reached for County enforcement of noise regulations on federal property in that area. Commissioner Adair said Congressman Benz was in China Hat on Sunday engaging with many residents, at which time he indicated his willingness to work with the USFS on these issues. She added that she will meet with Governor Kotek and the mayors of Redmond and Bend this Friday to seek land use flexibility needed to allow sanctioned camps outside of the UGB. Commissioner Chang wanted to be involved in any discussions of potential agreements between the Forest Service and DCSO on this subject. County Administrator Nick Lelack agreed to share his request and added that any such agreement would require Board approval. ADAIR: Move approval of first reading of Ordinance No. 2013-013 amending Title 11 .04, Public Use, of the Deschutes County Code by title only CHANG: Second BOCC MEETING AUGUST 9, 2023 PAGE 3 OF 13 VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried Chair DeBone read the title of the ordinance into the record. Commissioner Chang said two weeks ago, the media got details wrong while reporting on this subject. Doyle offered to make sure that all media who ask receive the correct updated document. 16. Public Hearing on a request to vacate a portion of Schibel Road County Engineer/Assistant Road Director Cody Smith announced that some parties interested in this matter have asked that the public hearing, which was noticed to occur on August 91", be postponed to next week. In light of those requests, Smith asked that the public hearing be opened and subsequently continued to next Wednesday August 16`h The public hearing was opened at 9:20 am. Liz Dixon, attorney representing the petitioners Jeff and Kathy Gates, stated that she preferred to testify next week if the hearing is continued. Terry Renning said the property owner who opposes the proposed road vacation has unobscured access to Highway 97 for ingress and egress. Marlene Renning supported the proposed vacation and said the road is not needed for public access. There being no one else who wished to testify at the time, the public hearing was continued to August 16rn 17. Public Hearing: Repeal of the Conventional Housing Combining Zone Rachel Vickers, Associate Planner, presented the staff report on the County - initiated proposal to amend Deschutes County Code to repeal the Conventional Housing Combining Zone, which restricts the placement of manufactured or prefabricated homes in specific areas east of Tumalo, west of Tumalo and east of Bend. Responding to Commissioner Chang, Vickers confirmed that most of the affected properties are ten acres are larger. BOCC MEETING AUGUST 9, 2023 PAGE 4 OF 13 The public hearing was opened at 9:41 am. There being no one who wished to testify, the public hearing was closed at 9:41 am. Nicole Mardell, Senior Planner, said because materials from the Planning Commission's consideration of this repeal were not uploaded to the project website until this morning, staff suggests that the Board leave the written record open for a time to allow interested parties the opportunity to comment on those. The Board was in concurrence to leave the written record open until 4:00 pm on August 16th and conduct deliberations on August 23ra 18. Public Hearing on Land Use File Nos. 247-23-000162-CU, 23-516-A: Secondary Accessory Farm Dwelling Haleigh King, Associate Planner, introduced the matter involving a decision by the Hearings Officer to deny a secondary accessory farm dwelling at 19825 Connarn Road. Commissioner Adair disclosed that in the past, she purchased lavender from this business before its ownership changed hands. The public hearing was opened at 9:49 am. King said the decision of the Hearings Officer to deny the request for a conditional use permit to allow a secondary dwelling was based on an interpretation that Deschutes County Code section 18.116.070 (A)(1) requires that Class A manufactured homes be used as primary dwellings and thus cannot be used as secondary dwellings. King presented a chart describing the differences between Class A, Class B and Class C mobile homes. Adam Smith, an attorney representing the applicant, said the essential question before the Board is whether a Class A manufactured home can be used as a secondary use farm dwelling in the MUM 0 zone. He argued that because Class A manufactured homes are also Class C manufactured homes, which are allowed, it follows that a Class A manufactured home is allowed. Smith differentiated Class D, Class C, Class B and Class A manufactured homes and noted that DCC 18.116.070(B)(2) specifically states that a Class C manufactured home is permitted as a secondary accessory farm dwelling. He agreed that ORS 174.010 controls and said the Hearings Officer failed to take DCC 18.116.050 into account as well as DCC 18.116.070(B)(2). BOCC MEETING AUGUST 9, 2023 PAGE 5 OF 13 Smith continued that no policy basis exists for requiring an inferior manufactured home to be used as a secondary accessory farm dwelling when an applicant seeks approval of a higher quality structure. Commissioner Chang agreed the Code is unclear, was concerned about potential policy implications, and supported modifying the Code to clarify what the County wants to allow or prohibit in terms of secondary dwellings on MUA-10 property. There being no one else who wished to speak to this matter, the public hearing was closed at 10:28 am. The Board was in consensus to close the record along with the public hearing and commence deliberations at this time. Commissioner Chang said the applicant presented a compelling argument that this use is allowed by Code. Commissioners Adair and DeBone concurred and noted that this property has a history of past and current farm use. ADAIR: Move to reverse the Hearings Officer decision and allow a Conditional Use Permit for a secondary accessory farm dwelling at 19825 Connarn Road CHANG: Second VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried Commissioner Change stated his desire to revisit this issue at the policy level when these proceedings are complete. 19. Public Hearing on a declaratory ruling to determine if the marijuana production facility approved under file no. 247-17-000907-AD has been initiated Avery Johnson, Assistant Planner, said the question before the Board is to determine if the decision of the Hearings Officer to approve an applicant's request was correct after the applicant submitted for land use approval of a marijuana production facility at 26295 Willard Road but conducted substantial construction work before the approval was granted. Johnson said approximately 90-95% of the work needed to establish the use was completed prior to the property owner receiving land use approval. BOCC MEETING AUGUST 9, 2023 PAGE 6 OF 13 Johnson explained possible unintended consequences of allowing work to proceed before a desired land use is approved and presented staffs recommendation that the term "holder of land use approval" be specified as the person or entity which possesses approval of a land use decision after that approval has been finalized. The public hearing was opened at 10:42 am. John Watson said he purchased this property for this specific purpose and received a license from the State in 2018 to produce marijuana; subsequently, his land use application to the County was approved by the Hearings Officer. Watson stated that he has capitalized the project completely at this point. Michael Hughes, an attorney representing the applicant, said no problems were anticipated with the needed land use approval and no neighbors challenged the application or expressed opposition. He said this situation is unique because it involves marijuana production, and the State is no longer issuing those licenses. Hughes said Deschutes County Code does not address expenditures made in advance of land use approval, and the Hearings Officer indicated that applicants should be allowed to incur expenditures prior to obtaining such approval. He disputed that the public was deprived of the opportunity to provide input in the process and concluded that all of the elements of the use initiation have been met. There being no one else who wished to speak, the public hearing was closed at 11:03 am. Anthony Raguine, Principal Planner, said part of the work done by Code enforcement is to stop applicants from proceeding with development before all necessary approvals are received —these include land use approvals as well as permits. County Administrator Nick Lelack expressed concern with statements made by the applicant that conversations with staff led him to believe that the land use approval would be granted. Commissioner Chang asked about the issuance of needed building permits for this use and also asked if other plants could be grown in the constructed greenhouses that would not require land use approval. Raguine confirmed that agriculture -exempt permits are not reviewed by the planning department and instead are issued at the sole discretion of the building BOCC MEETING AUGUST 9, 2023 PAGE 7 OF 13 official. He said any other crop could be grown in the greenhouses without any land use approval required. The Board was in concurrence to close the record at this time and conduct deliberations in a week or two. A lunch recess was announced at 11:15 pm; the meeting resumed at 1:32 pm. 20. Consideration of Document No. 2023-710, a Collective Bargaining Agreement with the International Union of Operating Engineers (IUOE), Local 701 Whitney Hale, Deputy County Administrator, presented the negotiated collective bargaining agreement with the International Union of Operating Engineers, Local 701. Noting this three-year agreement includes a 4% cost of living adjustment effective July 1, 2023, Hale summarized other components of the agreement and listed those who bargained on both sides. The Commissioners expressed appreciation for the efforts of those who negotiated the agreement. ADAIR: Move approval of Board signature of Document No. 2023- 710, a Collective Bargaining Agreement with the international Union of Operating Engineers, Local 701 CHANG: Second VOTE: ADAI R: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried 21. Oregon Health Authority funding for Medical Reserve Corps Emily Horton, Program Manager for Emergency Response and COVID Recovery, described the work being done to establish a Medical Reserve Corps (MRC) for the County and sought approval of a $297,000 grant of federal funds administered by the Oregon Health Authority for this program. Horton said staff proposes that most of these funds be used to add a 1.0 regular FTE position to serve as a MRC unit coordinator starting September 1st; funds not used for this position would be utilized for materials, supplies and contracted services. Commissioner DeBone noted this grant will facilitate the development of many valuable relationships throughout the County over the next two years. BOCC MEETING AUGUST 9, 2023 PAGE 8 OF 13 CHANG: Move to accept funding from the Oregon Health Authority under Program Element 12 for Medical Reserve Corps ADAIR: Second VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried CHANG: Move approval of Resolution No. 2023-043 adding 1.0 regular FTE position and increasing appropriations within the Health Services Fund and the 2023-24 Deschutes County budget ADAIR: Second VOTE: ADAI R: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried 22. Deliberations: Rural Accessory Dwelling Unit (ADU) Text Amendments Will Groves, Planning Manager, referred to public comments recently received on the proposal to establish local provisions for rural accessory dwelling units (ADUs), and presented a decision matrix with several outstanding questions to be considered and decided by the Board. 1. Should rural ADUs be prohibited, or allowed with additional standards? A majority of the Board was in consensus to allow rural ADUs with additional standards. 2. How should the term "useable floor area" be defined? A majority of the Board was in consensus to define the term "useable floor area" as the area of the accessory dwelling unit included within the surrounding insulated exterior walls, exclusive of garages, carports, decks and porch covers. 3. How should the 100-foot siting distance requirement be interpreted? A majority of the Board was in consensus that an existing nonconforming use could possibly be made conforming but new construction must be within 100 feet of the existing single-family dwelling. 4. Are specific limitations warranted for Southern Deschutes County groundwater protection? BOCC MEETING AUGUST 9, 2023 PAGE 9 OF 13 5 M. 7 A majority of the Board was in consensus to allow rural ADUs on lots or parcels measuring at least two acres in size in southern Deschutes County. Do the current amendments and ESEE analysis adequately address and protect Goal 5 and natural resources? A majority of the Board was in consensus that current amendments and ESEE analysis adequately address and protect Goal 5 and Natural Resources. Do the current amendments adequately address Senate Bill 762 and wildfire mitigation? A majority of the Board was in consensus that the current amendments adequately address Senate Bill 762 and wildfire mitigation. Should ADUs be allowed in the Westside Transect Zone? A majority of the Board was in consensus that ADUs should be allowed in the Westside Transect Zone. 8. Should vacation occupancy be prohibited in the existing residence as well as in the ADU? A majority of the Board was in consensus to prohibit both the existing single- family dwelling and the ADU for vacation occupancy use, as defined in ORS 90.100. Commissioner Chang noted his disagreement with how some of the policy questions were decided by a majority of the Board, in particular with respect to defining the term "useable floor area" and reducing the minimum lot size from five to two acres in Southern Deschutes County. ADAIR: Move approval of County -initiated Legislative Text Amendments to Deschutes County's Zoning Code (File No. 247-22-000671-TA), with modifications, to establish local provisions for rural accessory dwelling units (ADUs) DEBONE: Second VOTE: ADAI R: Yes CHANG: No DEBONE: Chair votes yes. Motion Carried 2 - 1 BOCC MEETING AUGUST 9, 2023 PAGE 10 OF 13 23. First reading of Ordinance 2023-009 relating to Destination Resort Text Amendments Commissioner Adair announced her wish to reconsider the vote previously taken on this matter. ADAIR: Move to reconsider the motion that was previously acted on with respect to an applicant -initiated legislative text amendment; file no. 247-22-000835-TA DEBONE: Second VOTE: ADAIR: Yes CHANG: No DEBONE: Chair votes yes. Motion Carried 2 - 1 ADAIR: Move to deny the applicant -initiated legislative text amendment; file no.247-22-000835-TA DEBONE: Second VOTE: ADAIR: Yes CHANG: No DEBONE: Chair votes yes. Motion Carried 2 - 1 24. Accepting a petition to incorporate a new City of Mountain View and setting the date for a public hearing Nicole Mardell, Senior Planner, presented an order for the Board's consideration to accept a petition to incorporate the City of Mountain View and setting a public hearing to consider the petition as submitted. ADAIR: Move approval of Board signature of Order No. 2023-023 accepting a petition to incorporate the City of Mountain View and setting a public hearing on September 20, 2023 on the petition CHANG: Second VOTE: ADAI R: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried OTHER ITEMS: ® Whitney Hale, Deputy County Administrator, distributed a draft letter of support to the US Department of Transportation for COIC's 2023 PROTECT BOCC MEETING AUGUST 9, 2023 PAGE 11 OF 13 grant application. If awarded, the grant will be used to identify areas at highest risk of natural hazards and surface transportation disruptions, analyze how evacuation routes could be improved in the region's most vulnerable areas, and support the community in evacuation planning and emergency preparedness. Hale said Jefferson and Crook Counties along with the City of Bend have already issued letters of support. Commissioner Adair advised that the letter include an accurate number of annual visitors to Central Oregon. ADAIR: Move to submit a letter of support to ODOT on behalf of COIC's application for a 2023 PROTECT grant CHANG: Second VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried Commissioner DeBone reported on his lunch meeting earlier in the day at which representatives from the Federal Reserve Bank of San Francisco were hosted by EDCO and the Central Oregon Workforce Consortium. Commissioner DeBone encouraged prayers for those affected by the wildfire in Lahaina on Maui. EXECUTIVE SESSION: At 3:01 p.m., the Board went into executive session under ORS 192.660 (2) (e) Real Property Negotiations. The Board moved out of executive session at 3:18 p.m. to direct staff to proceed as directed. ADJOURN: Being no further items to come before the Board, the meeting was adjourned at 3:18 pm. DATED this � day of 2023 for the Deschutes County Board of Commissioners. ANTHONY DEBONE, CHAIR BOCC MEETING AUGUST 9, 2023 PAGE 12 OF 13 PATTI ADAIR, VICE CHAIR ATTEST: PHIL CHANG, COMMISSIONER 46 K'4-� RECORDING SECRETARY BOCC MEETING AUGUST 9, 2023 PAGE 13 OF 13 �v1ES CO C. G BOARD OF COMMISSIONERS BOARD OF COUNTY COMMISSIONERS MEETING 9:00 AM, WEDNESDAY, AUGUST 09, 2023 Barnes Sawyer Rooms - Deschutes Services Building - 1300 NW Wall Street - Bend (541) 388-6570 1 www.deschutes.org 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/3mminzy. 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 estim— t�s_C�ri; : Generally.. items will be heard in sequential order and items, inclu� 4io public hearing., may be heard before or after their listed times. CALL TO ORDER PLEDGE OF ALLEGIANCE 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. CONSENT AGENDA Approval of Deschutes County Behavioral Health Advisory Board Bylaws 2. Approval of a Memorandum of Understanding with the American Federation of State, County and Municipal Employees to formalize juvenile Community justice Position Pay Differentials 3. Approval of a contract with Iris Telehealth to provide tele-psychiatric treatment services 4. Approval of Document No. 2023-740 to authorize the purchase of a Caterpillar 938M Loader for the Solid Waste Department 5. Approval of a lease with Getz Properties, LLC for space at 2100 NE Wyatt Court 6. Approval of Document No. 2023-646, an amendment extending the services contract with Clean Earth Environmental Solutions, Inc. 7. Approval of an amendment to the contract with HHPR, Inc. for Phase 2 of the Downtown Campus Parking Project 8. Approval of a Notice of Intent to Award a contract for the paving of Old Bend -Redmond Hwy: US 20 to Tumalo Rd Project 9. Approval of a Notice of Intent to Award a contract for engineering services for the Hamehook Road Bridge Replacement Project 10. Approval of Resolution No. 2023-047, appropriating a $300,000 grant from the Oregon Department of Energy for a biomass facility at Mt. Bachelor 11. Acceptance of an Oregon Department of Energy Community Renewable Energy Grant Award August 09, 2023 BOARD OF COUNTY COMMISSIONERS MEETING Page 2 of 4 12. Approval of an ame .cinn,e;,t a d-e ;s-er P, 'Health Authority 4173133-10) 13. Consideration of So�rci i na.w.re ors leiteys tt-appoinringAlysha EleLortc, Chris Perry, Drew Norris, Jared Jett -Cott and Jared Ernest for service on the Deschutes County Ambulance Service Area Committee 14. Approval of the minutes of the June 21, 26 and 28 and July 5, 10 and 12, 2023 BOCC meetings ACTION ITEMS 15. 9:10 AM First reading of a revised ordinance amending Deschutes County Code relative to camping and other sleeping associated activity on public property 16. 9:15AM Public Hearing on a request to vacate a portion of Schibel Road 17. 9:25 AM Public Hearing: Repeal of the Conventional Housing Combining Zone 18. 9:45 AM Public Hearing on Land Use File Nos. 247-23-000162-CU, 23-516-A: Secondary Accessory Farm Dwelling 19. 10:25 AM Public Hearing on a declaratory ruling to determine if the marijuana production facility approved under file no. 247-17-000907-AD has been initiated LUNCH RECESS until 1:30 ACTION ITEMS continued 20. 1:30 PM 21. 1:40 PM 22. 2:20 PM 23. 2:30 PM OTHER ITEMS Oregon Health Authority funding for Medical Reserve Corps Deliberations: Rural Accessory Dwelling Unit (ADU) Text Amendments First reading of Ordinance 2023-009 relating to Destination Resort Text Amendments Accepting a petition to incorporate a new City of Mountain View Petition and setting the date for a public hearing 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. August 09, 2023 BOARD OF COUNTY COMMISSIONERS MEETING Page 3 of 4 EXECUTIVE SESSION At any time during the meeting, n i e,%,f cutive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(4), litigation; ORS 192.660(2)(d), labor negotiations, ORS 192.660(2)(b), personnei 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. 24. Executive Session under ORS 192.660 (2) (e) Real Property Negotiations ADJOURN August 09, 2023 BOARD OF COUNTY COMMISSIONERS MEETING Page 4 of 4 BOARD OF COMMISSIONERS MEETING DATE: August 9, 2023 SUBJECT: Public Hearing on a request to vacate a portion of Schibel Road RECOMMENDED MOTIONS: First, hold a public hearing; thereafter, provide staff with further direction on the request. 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. BUDGET IMPACTS: None ATTENDANCE: Cody Smith, County Engineer/Assistant Road Department Director 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 05, 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 17S, 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- 12-056; 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 17-12-0513; 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 vacation 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. 5. 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 Schibel 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 owners of more 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); ORS368.351). • 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 PETITION FOR VACATION OF A PUBLIC ROAD TO: THE DESCHUTES COUNTY BOARD OF COMMISSIONERS We, the undersigned (holding recorded interest or abutting the proposed property or owning improvements constructed on the proposed property for vacation), respectfully request the following described road be vacated. Description of road to be vacated: &e. > -4-A&I C-Aed So V`Ve- Located in 1SA n-emo( , Deschutes County. Reason for road vacation request: DATED this _ day of J u L. 20 �7 PRINT NAME d CtV�n��li �1'51ZRy �2NNIE I2l�S p&5L-tryrm TIe,usT STATE OF OREGON } County of ADDRESS CITY STATE ZIP pgZq 5 Sal, I L. L5�225 &�,)Ie j OZ 9?r0.3 On this d7 day of I.J L04 _,in the year 202-Z Notary 'Mar ! cy,� y ,before me, a Nota Public, personally appeared �1^`C-Ae- ' Ree-� ` personally known to me (Or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is(are) subscribed to this instrument, and acknowledged that he (she, they) executed it. WITNESS my hand and offi ' I seal oFFIiiNA MARIE MORRIS ota corre on. IQKb(,)� NOTARY PUBLIC-OREGON My Commission expires: COMMISSION NO.996354 MY (aOMMISSION EXPIRES JANUARY 28, 2024 STATE OF OREGON ) County of `� )) ss. On this coL day of `v In the year 20�, before me, a Notary Public, Personally a _ Tglz.Y pr. 'Rcrr�. �� Y appeared Personally known to me (or proved to me on the basis of satisfactory evidence) to be the Person(s) whose names) is(are) subscribed to this instruzrmff.ly VCR they) executed it. ,MPNITINA MARIE MGRRIS WITNES my hand nd offic' eal NOTARY PUBL i-OREGON COMMISSION NO.996354 NOta P blic for Or on. MY COMMISSION EXPIRES JANUARY 28, 2D24 My Commission expires: STATE OF OREGON 1 PgPL4 County of 'e� On this , 'day of `SO , in the year 2O.0 before me, a Notary Public, personally tY appeared me on the basis of satisfactory evidence) to be the parson(s) whose names) isl(a eknown ubscribeto me d toor this to I (she, they) executed it. TINA MARIE MORRIS WITNES al my hand nd officl Tr NOTARY PUBLIC-OREGM COMMISSION NO.996354 Not blic for MY COMMISSION EXPIRES JANUARy 2s, 2024 Oregon. My Commission expires: STATE OF OREGON } j Cou of ) ss. On this f , In the year 20 , before me, a Notary Public, monailY appeared me on the basis of sati ary evidence) to be the Personally kn n to me (or proved to instrument, and acknowledg at he (she, they) executed hwhose name(s) is( subscribed to this WITNESS my hand and offic. seal Notary Public for I CERTIFY THAT THIS 13 THE TRUE AND ORIGI ETITIbKgIRCULATED BY ME. ADDRESS TELEPHONE: PETITION FOR VACATION OF A PUBLIC ROAD TO: THE DESCHUTES COUNTY BOARD OF COMMISSIONERS We, the undersigned (holding recorded interest or abutting the proposed property or owning improvements constructed on the proposed property for vacation), respectfully request the following described road be vacated. Description of road to be vacated: See attached Located in , Deschutes County. Reason for road vacation request: See attached DATED this a� day of !k , 20 as . PRINT NAME SIGNATURE Kathrvn Gates, Trustee Jeffrey Gates, Trustee / .y STATE OF OREGON ss. County of �Gwll ) ADDRESS CITY Tn,es1'e,e64227 Schibel Rd, Bend, OR 97703 ;fix%64227 Schibel Rd, Bend, OR 97703 STATE ZIP On this 6 day of "jW , in the year 20�efore me, a Notary Public, personally appeared Kathryn Gates, Trusted e of the Jeffrey & Kathryn Gates Rev LIV Trust, personally known to me (or proved to me on the basis of satisfactory evidence) to s) whose name(s) is(are) subscribed to this instrument, and acknowledged that he (she, it. N al "'"�" OFFICIAL rp Notary Public for Oregon KIL a MARL@ CLAY ry g NO pu&vK -ORS My Commission expires: Comm JON NO 102 00 µY �pMM$$ oN EXPIRES FFBRtIAAY 2 2026 STATE OF OREGON ) ss. County of-}'ll�'S ) On this day of <- )Ld Lj, in the year 202S? before me, a Notary Public, personally appeared Jeffrey Gates, Trustee of the _Jeffrey & Kathryn Gates Rev LIV Trust,_ personally known to me (or proved to me on the basis of satisfactory evidence) to b Ahe_ erson(s) whose name(s) is(are) subscribed to thiNinstrum2ent, Macknowltt he (she, executed i . icial seal LAYRE00N102100 Notary u IRY2 2M My Commission expires: Dco( STATE OF OREGON ss. County of On this day of , in the year 20_, before me, a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is(are) subscribed to this instrument, and acknowledged that he (she, they) executed it. WITNESS my hand and official seal STATE OF OREGON ss. County of Notary Public for Oregon. My Commission expires: On this day of , in the year 20_, before me, a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is(are) subscribed to this instrument, and acknowledged that he (she, they) executed it. WITNESS my hand and official seal Notary Public for Oregon. My Commission expires: I CERTIFY THAT THIS IS THE TRUE AND ORIGINAL PETITION CIRCULATED BY ME. 24V-al "WGNATURE TELEPHONE: fV— g15"=?(01t8 Reason for Vacating the southern portion of Schibel Rd 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 60foot width encroaches upon the septic system, that was approved by Deschutes County. 2-Reduces property values of the 3 tax lots requesting this Vacation, which is 75% of the owners. 3-Decades old trees and landscaping would be lost. 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,du�ing the major snowstorms of 2017 & 2019. 5-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 1806 and 1901. 6-Traffic will increase, and no traffic study has been done that we know of. 7-Safety of the young children living on Schibel Road is a concern of the parents and neighbors 8-It is not in the General Public's best interest. 9-Induced to sign the dedication under false pretenses. We were told we could remove the southern portion of the dedication with a "single item deletion" 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. EXHIBIT A SCHIBEL ROAD - VACATION A STRIP OF LAND BEING 60.00 FEET WIDE, 30.00 FEET ON EACH SIDE OF CENTERLINE (WHEN MEASURED AT RIGHT ANGLES) LOCATED IN THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER (SE 1/4, SW 1/4, NW 1/4) AND THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER (NW 1/4, SW 1/4), ALL IN SECTION 5, TOWNSHIP 17 SOUTH, RANGE 12 EAST, WILLAMETTE MERIDIAN, DESCHUTES COUNTY, OREGON, THE CENTERLINE OF WHICH IS MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT FROM WHICH THE CENTER WEST ONE -SIXTEENTH CORNER OF SAID SECTION 5 BEARS NORTH 34'42'51" EAST, 51.73 FEET, THENCE NORTH 00°4351" WEST, 161.76 FEET; THENCE SOUTH 88�32'18" WEST, 76.94 FEET TO A POINT OF CURVATURE; THENCE ALONG THE ARC OF A 300.00 FOOT RADIUS CURVE TO THE LEFT, THROUGH A CENTRAL ANGLE OF 16-54'37", AN ARC LENGTH OF 88.54 FEET (THE CHORD OF WHICH BEARS SOUTH 80-05'00" WEST, 88.22 FEET); THENCE SOUTH 71037'41" WEST, 39.52 FEET TO A POINT OF CURVATURE; THENCE ALONG THE ARC OF A 110.00 FOOT RADIUS CURVE TO THE RIGHT, THROUGH A CENTRAL ANGLE OF 65-21'54", AN ARC LENGTH OF 125.49 FEET (THE CHORD OF WHICH BEARS NORTH 75-41'22" WEST, 118.80 FEET); THENCE NORTH 43*00'25" WEST, 81.60 FEET TO A POINT OF CURVATURE; THENCE ALONG THE ARC OF A 140.00 FOOT RADIUS CURVE TO THE RIGHT, THROUGH A CENTRAL ANGLE OF 80°07'12", AN ARC LENGTH OF 195.77 FEET (THE CHORD OF WHICH BEARS NORTH 02-56'49" WEST, 180.21 FEET); THENCE NORTH 37006'47" EAST, 125.37 FEET TO A POINT OF CURVATURE; THENCE ALONG THE ARC OF A 300.00 FOOT RADIUS CURVE TO THE RIGHT, THROUGH A CENTRAL ANGLE OF 27-17,49", AN ARC LENGTH OF 142.93 FEET (THE CHORD OF WHICH BEARS NORTH 50-4542" EAST, 141.58 FEET); THENCE NORTH 64024'36" EAST, 40.87 FEET TO A POINT OF CURVATURE; THENCE ALONG THE ARC OF A 150.00 FOOT RADIUS CURVE TO THE LEFT, THROUGH A CENTRAL ANGLE OF 48o27'11", AN ARC LENGTH OF 126.85 FEET (THE CHORD OF WHICH BEARS NORTH 40-11,00" EAST, 123.10 FEET) TO A POINT ON THE ONE-SIXTYFORTH LINE AND THE TERMINUS OF THIS CENTERLINE DESCRIPTION, THE SIDELINES ARE TO BE LENGTHENED OR SHORTENED TO TERMINATE AT SAID ONE-SIXTYFORTH LINE AND AT THE SOUTH LINE OF TAX LOT 17120513001800. TOGETHER WITH THE FOLLOWING DESCRIBED STRIP OF LAND BEING 60.00 FEET WIDE, 30.00 FEET ON EACH SIDE OF CENTERLINE (WHEN MEASURED AT RIGHT ANGLES) WHICH IS MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE NORTH -SOUTH CENTERLINE OF THE NORTHWEST QUARTER OF SAID SECTION 5 FROM WHICH THE CENTER WEST ONE -SIXTEENTH CORNER BEARS SOUTH 00-43'51" EAST, 536.04 FEET, THENCE NORTH 83°16'31" WEST, 147.04 FEET TO THE SIDELINE OF THE ABOVE DESCRIBED STRIP OF LAND AND THE TERMINUS OF THIS CENTERLINE DESCRIPTION, THE SIDELINES ARE TO BE LENGTHENED OR SHORTENED TO TERMINATE AT SAID SIDELINE OF THE ABOVE DESCRIBED STRIP OF LAND AND AT SAID NORTH -SOUTH CENTERLINE OF THE NORTHWEST QUARTER. THIS LEGAL DESCRIPTION AND EXHIBIT MAP ARE BASED ON COUNTY SURVEY NO. 11789. REGiI�f RE® PROFESSIONAL 91 JULS#fis-.11194 BRIAN' SIN: 'REEM DATE' fL;-31-- 'EXHIBIT B' Q SCHIBEL ROAD VACATION w LOCATED IN THE SW 1 /4, NW 1 /4 AND THE NW 1 /4, I m SW 1 /4 OF SECTION 5, T. 17 S., R. 12 E., W. M. N S-N 1 /64 LINE N89'58'42"W HOLLYHOCK 1994 LIVING TRUST 64245 SCHIBEL ROAD TAX LOT 171205B001901 i �30� fox Ll ' r I ocnw 2 sr �� oa \ Sp, SCALE 1" = 100' E-W CENTER 1/4 LINE 795.52' Ary 6& / __N$3'16'31 "W _� 147.04; ri 9� D6Q, PORTION OF SCHIBEL ROAD / TO BE VACATED JEFF AND KATHY GATES 64227 SCHIBEL ROAD TAX LOT 171205B001800 z (n O 0 0 � m Cw z m m _ rr rn z m O n z cn w rn o 54' S88'32'18"W — \�r25 3� ��„w R 00.00' 76.94' 49' S r_ 10.039520' o I rn o rn � CURVE TABLE CURVE LENGTH RADIUS DELTA BEARING CHORD Cl 88.54' 300.00' 16'54'37" S80'05'00"W 88.22' C2 125.49' 110.00' 65'21'54" N75'41'22"W 118.80' C3 195.77' 140.00' 80*07'12" NO2'56'49"W 180.21' C4 142.93' 300.00' 27*17'49" N50'45'42"E 141.58' C5 126.85' 150.00' 1 48*27*11" I N40*11'00"E 123.10' P.O.B. OF 60' WIDE EASEMENT BEARS S34'42'51 "W, 51.73' FROM CW 1/16 COF o - SCFi►gE` ROAD D rn mr al0 N r 00 0 cmn z0 O O zz -4 �D CZ 0 m<M x -c = zm 0 -' D d � 00 co CW 1 /16 CORNER SECTION 5 T17S, R12E, W.M. REGISTERED PROFESSIONAL. EXHIBIT A SCHIBEL ROAD - DEDICATION A STRIP OF LAND BEING 60.00 FEET WIDE, 30.00 FEET ON EACH SIDE OF CENTERLINE (WHEN MEASURED AT RIGHT ANGLES) LOCATED IN THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER (SE 1/4, SW 1/4, NW 1/4) IN SECTION 5, TOWNSHIP 17 SOUTH, RANGE 12 EAST, WILLAMETTE MERIDIAN, DESCHUTES COUNTY, OREGON, THE CENTERLINE OF WHICH IS MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE NORTH -SOUTH CENTERLINE OF THE NORTHWEST QUARTER OF SAID SECTION 5 FROM WHICH THE CENTER WEST ONE -SIXTEENTH CORNER BEARS SOUTH 00-43'51" EAST, 536.04 FEET, THENCE NORTH 83`16'31" WEST, 3.92 FEET TO A POINT OF CURVATURE; THENCE ALONG THE ARC OF A 105.88 FOOT RADIUS CURVE TO THE RIGHT, THROUGH A CENTRAL ANGLE OF 82005'22", AN ARC LENGTH OF 151.70 FEET (THE CHORD OF WHICH BEARS NORTH 42-13'50" WEST, 139.05 FEET); THENCE NORTH 01'11'09" WEST, 20.44 FEET TO A POINT ON THE ONE-SIXTYFORTH LINE AND THE TERMINUS OF THIS CENTERLINE DESCRIPTION, THE SIDELINES ARE TO BE LENGTHENED OR SHORTENED TO TERMINATE AT SAID NORTH -SOUTH CENTERLINE OF THE NORTHWEST QUARTER AND AT THE ONE-SIXTYFORTH LINE. THIS LEGAL DESCRIPTION AND EXHIBIT MAP ARE BASED ON COUNTY SURVEY NO. 11789. REGISTERED PROFESSIONAL '"Ll BRIAN-. OAT 'EXHIBIT B' SCHIBEL ROAD DEDICATION LOCATED IN THE SE 1 /4, SW 1 /4, NW 1 /4 OF SECTION 5, T. 17 S., R. 12 E., W. M. S-N 1/64 LINE N89'58'42"W HOLLYHOCK 1994 LIVING TRUST 64245 SCHIBEL ROAD TAX LOT 171205BOO1901 SCALE 1" = 100' E-W CENTER 1/4 LINE 795.52' 30' {-�- 30' OS\ ,>O, DEDICATION 3.92 N83'16'31" W JEFF AND KATHY GATES 64227 SCHIBEL ROAD TAX LOT 171205BOO1800 CURVE TABLE CURVE LENGTH RADIUS F DELTA I BEARING I CHORD C6 151.70' 105.88' 1 82'05'22" 1 N42'13'50"W 139.05' 0 O `� SCHIBE=p ,n N83'16'31-; / i D m r- m ao c� z (r (n o 00 z <''- z � � n m � ri oc o z zz m � D o co � _ zW O D V a OD co I CW 1/16 CORNER SECTION 5 T17S, R12E, W.M. REGISTERED PROFESSIONAL L.ANQ SURVEYOf , w� 1 ! L I It nw.� m We, the undersigned, are the owners of Tax Lot 171200MI901 in Deschutes County, Oregon, The proposed road vacation of a portion of Scheel Road will deprive us of arose to a public road necessary for the exercise of our recorded property rim#. Acoomft to Or"on Revised Stabrtn 368.331: 3Q8.M Lknitadon on use of vocadon pnocoodkigs to skahm to acaem A county govrerr►hV body abet not vale pubW lands under ORS 38&W to 368:306 if the vacaWrt would d opft an owner of a roo=W property right of access necessary for the exercise of that pmperty dght unless the cW* gomning body has the ronseW of the owner. We hereby give the Board of County Commissioners of Deschutes County, Oregon consent to proceed with the proposed road vacation of a portion of Schibel Road. DATED this _ day of '� *-bV U A'r � 209 '?�- --- 1� Marlene S Wheeler. Owner as Trusb* T A ennie, Owner Hollyhock 1994 LI Ing Trust, STATE OF County tAA j SS. The foreong Instrument wm acknowledged before rro by Marlene S. Whe eler this .-an . day of 'Trr 6; , 20Q. ------------ e►c•r NOTARY PUBLIC FOR fi coa�awe�aruam MY COMMISSION EXPIRES: _4$/16 �a R �hrtoawn. ��w t� w� STATE OF 4 {�,' j County o P i�A j The bffigOft msirurrhent was adJwMedged before me by Terry A. Rennie this W day of �c-y �fi„ , 2OA3 . �+ AUDW NOTARY PUBLIC F R 1-'K MY COMMISSION EXPIRES: $ I l 3 ale esu��a� . � SERVICE PROVIDER CONSENT FOR RIGHT OF WAY VACATION i r �� , as Chief Petitioner, intends to submit a petition for Deschutes (Chief Petitioner's Name) County, Oregon to vacate the public right of way described or depicted in the attached documents. As a utility or other service provider, Avion Water Company, Inc. Does not have existing facilities within the area proposed for vacation. ❑ Have existing facilities within the area proposed for vacation. Further, as a utility or other service provider, Avion Water Company, Inc. Consents to the vacation of this section of public right of way. ❑ Consents to the vacation of this section of public right of way but requests that an easement for utilities be granted within the area to be vacated by the underlying property owner. ❑ Does not consent to the proposed right of way vacation for the following reason: Print Name of Service Provider Representative f / , Signature Ref: Schibel Road Vacation Representative's Title 1 t Date LU CD Aco Co L) 0 vr� SERVICE PROVIDER CONSENT FOR RIGHT OF WAY VACATION Kathy Gates . as Chief Petitioner, intends to submit a petition for Deschutes (Chief Petitioner's Name) County, Oregon to vacate the public right of way described or depicted in the attached documents. As a utility or other service provider, Central Electric Cooperative Inc (Service Provider Name) ❑ Does not have existing facilities within the area proposed for vacation. Have existing facilities within the area proposed for vacation. Further, as a utility or other service provider, _ Central Electric Cooperative Inc. (Service Provider Name) ❑ Consents to the vacation of this section of public right of way. Consents to the vacation of this section of public right of way but requests that an easement for utilities be granted within the area to be vacated by the underlying property owner. ❑ Does not consent to the proposed right of way vacation for the following reason: If the proposed new Road is dedicated to the public an easement for CEC's existing facilities located within the proposed new ROW will need to be created Parneli Perkins Print Name of Service Provider Representative Land & ROW Specialist Representative's Title IVA 2 ?1 Signatur Date vT E S COG�..� BOARD OF COMMISSIONERS MEETING DATE: August 9, 2023 SUBJECT: First reading of a revised ordinance amending Deschutes County Code relative to camping and other sleeping associated activity on public property RECOMMENDED ACTION: Move new first reading of Ordinance No. 2023-013 providing amendments to Deschutes County Code section 11.04, including a new subsection 11.04.065. BACKGROUND AND POLICY IMPLICATIONS: On July 26, 2023, the Board concluded deliberations and approved first reading of Ordinance No. 2023-013. Since that time, County Legal has prepared further revisions to include new subsection 11.04.065. The purpose of this new subsection is to expressly provide that Deschutes County Code section 11.04 can apply, where authorized by written agreement with another public jurisdiction, to federal, state and/or city property. Because of the substantive impact of this new subsection, a new first reading is required. The new section 11.04.065 reads: 11.04.065 Extra Jurisdictional Application Where authorized by written agreement between Deschutes County and the appropriate federal, state and/or city representatives, this section 11.04 is applicable to specifically identified federal, state and/or city property located within unincorporated Deschutes County upon such terms, conditions and limitations stated therein. BUDGET IMPACTS: None ATTENDANCE: Admin Lega I REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Title 11.04, Public Use, of the Deschutes County Code. * ORDINANCE NO. 2023-013 WHEREAS, the Deschutes County Code (DCC) contains rules and regulations duly enacted through ordinance by Deschutes County and the Deschutes County Board of Commissioners; and WHEREAS, from time -to -time the need arises to make amendments, including new enactments to the DCC; and WHEREAS, upon direction from the Board of Commissioners, County Legal drafted revisions to DCC 11.04 to specifically address homeless camping issues raised by the Sheriff at a public work session on June 7, 2023; and WHEREAS, the Board of County Commissioners of Deschutes County considered this matter at a duly noticed public hearing during the Board meeting on July 19, 2023, and determined that DCC 11.04 should be amended; now therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. DCC 11.04 is amended to read as described in Exhibit "A," attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in stfikethfoug-h. Section 2. ADOPTION. This Ordinance takes effect 90 days after second reading. PAGE 1 OF 2 - ORDINANCE NO.2023-013 Dated this of , 2023 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ANTHONY DeBONE, Chair PATTI ADAIR, Vice Chair ATTEST: Recording Secretary PHIL CHANG, Commissioner Date of 1 st Reading: day of , 2023. Date of 2nd Reading: day of , 2023. Record of Adoption Vote Commissioner Yes No Abstained Excused Patti Adair Phil Chang Anthony DeBone Effective date: day of , 2023. PAGI; 2 OF 2 - 01DI'NANCE NO.2621-013 EXHIBIT A (To Ordinance No. 2023-013) CHAPTER 11.04 PUBLIC USE 11.04.010 Purpose 11.04.020 Definitions 11.04.030 Policies 11.04.040 Justice Building; Searches 11.04.050 Road Closures 11.04.060 Prohibited Activities 11.04.070 Alienation 11.04.080 Violation; Penalty 11.04.010 Purpose Public use regulations are adopted for the purpose of protecting public property. HISTORY Adopted by Ord. 96-013 §1 on 512211996 11.04.020 Definitions For the purposes of DCC 11.04, unless otherwise apparent from the context, certain words and phrases used in DCC 11.04 are defined and as set forth in DCC 1.04 and DCC 11.04.020. "Alternate shelter" means an outdoor location that provides access for sleeping and/or camping through the use of a vehicle a recreational vehicle, a tent, or some other structure which offers some protection from the outdoor elements, provided that any alternate shelter shall not be located: (1) in a manner that will create a physical impediment to emergency or nonemergency ingress, egress or access to public or private property including but not limited to driveways, sidewalks and entrances or exits from buildings and/or other real Property; and/or (2) within 1000 feet of a school or public park. "Bed" means an item(s) utilized for sleeping. "Bedding" means the collective term for the articles which compose a bed. "Camping" means any form of sleeping or use of a bed, to include bedding materials, whether outdoors or through use of a vehicle recreational vehicle, tent or other structure which can offer some protection from the outdoor elements. "Campsite" means the location where camping is occurring. "Industr;al land" means any GeWRty ewned real pFope+ty zoned feF industr-lial, caamwl-r-�, "Park" means any County owned real property designated by resolution of the Board as a County park, pursuant to ORS 275.320. "Parking lot" means an area consisting of one or more parking spaces grouped. "Program Administrator" means the Board, the County Property and Real Estate Manager, Deschutes County department head or designees. "Public places" means Ceounty-owned or controlled real property that is open and available for use by the public. It does not include "vacant county land" or any Ceounty-owned or controlled real property designated by the County Administrator as not open for public use, or as use limited. "Public service facility" means any real property that is owned or leased by County where public services are provided or conducted and shall include, but not be limited to, buildings, facilities, or real property which is fenced, enclosed or otherwise developed and any associated grounds. "Right of way" means the area between the boundary lines of a street, road or other public easement. "Shelter" means an indoor location that provides access for sleeping. "Sleeping" means sitting, lying and/or employing rudimentary forms of protection from outdoor elements. "Vacant county land" means all County owned land which does not qualify as a "public place," "public service facility," "park" or "right of way." Unless specifically authorized by Order of the Board of Commissioners sleeping, camping, taking shelter or taking alternate shelter is at all times prohibited on vacant county land. HISTORY Adopted by Ord. 96-013 §1 on 512211995 Amended by Card. 2023-013 §1 on 8123P023 11.04.030 Policies A. Real Property. Except as otherwise provided in this section 11.04, p]2ublic use of County --owned or controlled real property, not including vacant county land, shall be limited to day use (dawn to dusk) except as permitted herein or otherwise permitted by adoption of resolution of the Board. 1. Any County owned real property leased by authority of the Board of Commissioners to other public agencies or private parties shall be governed by the terms and provisions of such leases. 2. County -owned or controlled real property may be posted closed, not open for public use, or use limited, upon direction ofby the County Administrator.C4uAtV44eper-ty 3. County shall not accept conveyance or transfer of real property except upon recording of a written acceptance from the Board of Commissioners. 4. Exclusive or other special use of County --owned or controlled real property by private entities or other agencies shall only be granted pursuant to a written lease or license authorized by the Board of Commissioners. B. County Owned/Occupied Buildings. The open common areas of County public service facilities and other buildings occupied by County employees are open to members of the public who have business with County employees. However, these buildings are also places where County employees do their work. That work often involves sensitive and confidential issues. County employees require work areas that are quiet, free from unnecessary foot traffic and where they may discuss sensitive or confidential matters without being overheard by persons not employed by the County. Each department or other program occupying a building shall where feasible, establish a waiting area which is, to the extent possible, located near the department or program receptionist and outside the department's or program's work area. Members of the public are to wait in this area until the person they are waiting to see is available. Each waiting area shall be clearly posted as such. 2. Areas other than open common areas and designated waiting areas are open to visitors by invitation only. County department heads and staff are responsible for their offices, and may request (or order) visitors to leave their offices at their discretion. County department heads and department support staff supervisors are responsible for support staff work areas, and may, in their discretion, ask visitors to leave those areas. C. Public Service Facilities. Public service facilities which provide services beyond the hours of dawn to dusk shall operate in a manner deemed appropriate by the Program Administrator. Public access may be restricted by the Program Administrator, on the basis of public safety or administrative efficiency to those areas deemed by the Program Administrator to be necessary for provision of the intended services. D. Parking Lots 4-. 2. County parking lots may be posted with time and use restrictions, and unless otherwise posted are not available for overnight use, to include but not limited_ to_sleel;(inng care ingor taking alternate shelttier. Violations may be cited as authorized by this section 11.04." "^ r—Ni Ries Director of County n-Mi * -ator j4e4eco�meRded penalty fOF the citation of violation of WC 11.04 shall be 35 ellars, which -shall double each 24 hours up to feuF days, and which may be paid as a bail for farfe4twe HISTORY Adopted by Ord. 96-013 §1 on 512211996 Amended by Ord. 2020-005 §1 on 11112021 Amended by Ord. 2023-013 §1 on 812312023 Except for on -duty law enforcement personnel, and individually designated county staff, every person entering through the public entrances of the Courthouse facility, District Attorney facility, Community and Juvenile Justice facilities, and all other Deschutes County Justice / Law Enforcement facilities, including any annex thereto, is subject to search of his or her possessions and must pass through metal detectors. HISTORY Adopted by Ord. 97-046 §1 on 61411997 Amended by Ord. 2020-005 §1 on 11112021 11.04.050 R®ad-Property Closures Where vacant cCounty landffrep", not generally open for public use, is or has been used by automobiles, motorcycles and other off -road vehicles or bicycles for recreation, or for other purposes including sleeping camping, or taking alternate shelter as defined in this section 11.04, and the County has a need to close and discontinue the property to these is uses, the County will notify the general public of the intent to close in a local paper of general circulation in addition to the notification procedures outlined in applicable County Encampment Removal Policy-. The design of and the closure shall be in accordance with applicable County Encampment Removal Policy and also the requirements of the Manual on Uniform Traffic Control Devices, published by the Federal Highway Administration, in terms of signing and barricading. Any person who refuses to leave after implementation of applicable County Ecampment Removal Policy may be cited/charged as authorized by this section 11.04. Permanent closures smay, to the extent directed by the County Administrator, consist of appropriate berms, ditches and obliteration of existing roads. The closure design shall be in written form and approved by the County Engineer or County Traffic Engineer. In no case shall ropes or cables be used to close the road or area. HISTORY Adopted by Ord. 96-013 §1 on 512211996 Amended by Ord. 2023-013 §1 on 812312023 11.04.060 Prohibited Activities A. Exceptiqg for site -specific authorization by Order of the Board of Commissioners, n-No person shall construct, install, e-r-encroach, sleep, camp, or obtain shelter or alternate shelter upon County_ owned or controlled real propertyia4i4. A.B.No person shall sever, excavate, damage, vandalize, burn, litter, remove materials from or cause v other site disturbing activity upon or to County_ owned or controlled real property without obtaining an appropriate permit or license authorizing such activity, from the 4eafr4; Property Manager, Director of Road Department or Director of Solid Waste. Open fLres are strictly rp ohibited at all times on County -owned or controlled real property. &C. No person shall cut or remove vegetation or trees on or from County_ owned or controlled real property except upon first obtaining a wood cutting permit from the County Property Manager or County Forester. Q.D.Excepting for site -specific authorization by Order of the Board of Commissioners, mMotor vehicles (operable and inoperable), including but not limited to R.V's, trailers and personal use vehicles, shall be limited to existing parking lots during business hours, subject to ti and manner regulatiens, if , and operation on established roads. Motor vehicles are prohibited on dedicated public pedestrian/bicycle trails. D-.E. Discharge of firearms is prohibited in and on public service facilities and Ccounty-owned or controlled real property except as may be provided by Orders of the Board of Commissioners. €:F. No person or group shall exclude any other member of the public from County --owned or controlled real property that is open for public uses, except as provided by lease, license or Orderrese4+#e44 ofby-the Board of Commissioners. 4;:G. No person shall engage in any conduct in or on property where public services are provided which hinders, interferes with or prevents those employees from performing their duties. H. _No person shall smoke or carry any lighted or electronic smoking instrument in any Deschutes County --owned, controlled or occupied building, except as permitted by the Deschutes County Smoke Free Policy. --I. No person shall discharge or dump any sewage or wastewater from baths, sinks and showers on or adjacent to Count owned or controlled real property. J.K. No person shall cause or contribute to the accumulation of solid waste materials on County_ owned or controlled real roper HISTORY Adopted by Ord. 96-013 §1 on 512211996 Amended by Ord. 97-057 §1 on 101811997 Amended by Ord. 2020-005 §1 on 11112021 Amended by Ord. 2023-013 §1 on 8/2312023 Where authorized by written agreement between Deschutes County and the appropriate federal, state and/or city representatives, this section 11.04 is applicable to specifically identified federal, state and/or city_property located within unincorporated Deschutes County upon such terms, conditions and limitations stated therein HISTORY Adopted by Ord. 2023-013 §1 on 812312023 11.04.070 Alienation Excepting conveyances signed by the County Property Manager upon written authorization of the County Commissioners or the County Administrator, no County --owned real property shall be sold, leased, dedicated, licensed, donated, exchanged, encumbered or otherwise alienated except upon signature, authorization, order or ratification of the Board. HISTORY Adopted by Ord. 96-013 §1 on 512211996 Amended by Ord. 2020-005 §1 on 11112021 11.04.080 Violation, Penalty Any violation or failure to comply with any provision of DCC 11.04; may be prosecuted in Justice Court as a Class A violation or may be charged and prosecuted in Circuit Court as Trespass pursuant to ORS 164.205 et seq.e' ��+ n�� nn n�Nn� ;� r�000 n ,,,��,+; ,� If imposed civil penalties are not timely paid upon app►ication by the County a warrant may be issued by the Circuit Court to the violator. HISTORY Adopted by Ord. 96-013 §1 on 512211996 Amended by Ord. 2003-021 §24 on 41912003 Amended by Ord. 2023-013 §1 on W312023 BOARD OF COMMISSIONERS MEETING DATE: August 9, 2023 SUBIECT: Public Hearing: Conventional Housing Combining Zone Repeal RECOMMENDED MOTION: Hold a public hearing to gather testimony on a staff -initiated text amendment to repeal the Conventional Housing Combining Zone, BACKGROUND AND POLICY IMPLICATIONS: The Board will conduct a public hearing on August 9, 2023 to consider a staff initiated text amendment (file no 247-23-000391-TA) to repeal the Conventional Housing Combining Zone. BUDGET IMPACTS: None ATTENDANCE: Rachel Vickers, Associate Planner MEMORANDUM TO: Deschutes County Board of Commissioners FROM: Rachel Vickers, Associate Planner DATE: August 9, 2023 SUBJECT: Public Hearing: Conventional Housing Combining Zone Repeal The Board of County Commissioners (Board) will conduct a public hearing to consider legislative amendments to repeal the Conventional Housing Combining Zone (file no. 247-23-000391-TA) on August 9, 2023. The full record is available at the project website: httas://www.deschutes.orR/cd/page/247-23-000391-ta-%E2%80%93-repeal-conventional-housing- combining-zone. 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. 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. II1. 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 At the conclusion of the public hearing, the Board can choose one of the following options: • Continue the hearing to a date and time certain; • Close the oral portion of the hearing and leave the written record open to a date and time certain; • Close the hearing and commence deliberations; or • Close the hearing and schedule deliberations for a date and time to be determined. ATTACHMENTS: 1. Proposed Text Amendments 2. Proposed Findings 3. CHC Zone Map 4. Draft Ordinance 2023-034 S. Draft Ordinance 2023-034 Emergency Page 3 of 3 Attachment 1: Proposed Text Amendments Remeved New CHAPTER 18.92 CONVENTIONAL HOUSING COMBINING ZONE; CH (Repealed) (Repealed by Ord. 2023-XXX on X/XX/XXXX) 1 Q 97 919 PuFpese 1 Q o2 n2n PeFmitte d i ire 1 Q 97 030 Use i „m *tatkN4 V a a -, - =-- 1110110111�-- • .. Attachment 2: Proposed Findings 247-23-000391-TA FINDINGS 1. 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 II. 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/TUR5) 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 III. 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. B. 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 Commissioners 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 Bill 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 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 st.:vo.�h. Section 2. FINDINGS. The Board adopts as its findings, Exhibit `B" attached and incorporated by reference herein. PAGE 1 OF 2 - ORDINANCE NO.2023-034 Dated this of , 2023 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ATTEST: Recording Secretary ANTHONY DEBONE, Chair PATTI ADAIR, Vice Chair PHILIP CHANG Date of l' Reading: day of , 2023. Date of 2nd Reading: day of , 2023. Record of Adoption Vote: Commissioner Yes No Abstained Excused Anthony DeBone Patti Adair Philip Chang Effective date: day of , 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 str-ik thr-^uggh. 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 ANTHONY DEBONE, Chair PATTI ADAIR, Vice Chair PHILIP CHANG Date of 1" Reading: day of , 2023. Date of 2nd Reading: day of 12023. Record of Adoption Vote: Commissioner Yes No Abstained Excused Anthony DeBone Patti Adair Philip Chang _ Effective date: day of , 2023. PAGE 2 OF 2 - ORDINANCE NO.2023-034 01 Es coG�� o BOARD OF MEETING DATE: August 9, 2023 SUBJECT: Public Hearing on Land Use File Nos. 247-23-000162-CU, 23-516-A: Secondary Accessory Farm Dwelling RECOMMENDED MOTIONS: First, hold a public hearing; thereafter, the Board may continue the hearing to a date and time certain, close the oral portion of the hearing and leave the written record open to a date and time certain, close the hearing and commence deliberations, or close the hearing and schedule deliberations for a date and time to be determined. BACKGROUND AND POLICY IMPLICATIONS: The Board will conduct a Public Hearing to consider an appeal of the Hearings Officer's denial of a request for a 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 ►�i1 IT11077_1I111- 1 TO: Deschutes County Board of County Commissioners FROM: Haleigh King, AICP, Associate Planner DATE: August 2, 2023 RE: Pubic Hearing: Deschutes County Land Use File Nos. 247-23-000162-CU, 23-516-A: Secondary Accessory Farm Dwelling The Board of County Commissioners (Board) is conducting a Public Hearing on August 9, 2023, to consider a request for a secondary accessory farm dwelling. The application and appeal 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. II. 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. STAFF COMMENT As Staff noted in the Hearing's Officer proceedings, the construction of DCC 18.116.070 is unclear on whether a Class A manufactured home can be utilized or established as a secondary accessory farm dwelling. It is clearly stated in DCC 18.116.070(B) that a Class C manufactured home can be utilized as a secondary accessory farm dwelling in DCC 18.116.070(B). However, the Hearings Officer found that a Class A manufactured home can only be utilized as a "primary dwelling" based on the construction of DCC 18.116.070(A). 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 247-23-000162-CU, 23-516-A Page 2 of 4 words, DCC 18.1,16.070(A)(1) allows C.iass A and B in a large variety of situations and (B)(2) is an exception to the implicit preclusion of Class C manufactured homes in the .070(A)(1) scenarios. V. BOARD CONSIDERATION The Board has agreed to hear the appeal limited de novo. The Board will hear and consider the report by staff, the applicant's presentation and written submittal, and any member of the public that wishes to give testimony or provide written comments directed towards the limited topics of the appeal. The record is available on the project website listed below. As a reminder to the Board, the applicant, and any member of the public that wishes to give testimony, the proceedings will be limited de novo. A limited de novo review means that the Board will limit the issues on appeal to those listed in the appellant's notice of appeal, as listed below: • 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) VI. 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 150th 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 1501h day on which the County must take final action on this application is October 14, 2023. VII. RECORD The record for File No. 247-23-000162-CU and the 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 VIII. NEXT STEPS At the conclusion of the Public Hearing, the Board can choose one of the following options: • Continue the hearing to a date and time certain; • Close the oral portion of the hearing and leave the written record open to a date and time certain; • Close the hearing and commence deliberations; or 247-23-000162-CU, 23-516-A Page 3 of 4 Close the nearing and schedule rlkber�-Aians for a date a( -,,(I time to be determined. 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 4 of 4 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") AGENT FOR 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 11 Chapter 18.128, Conditional Use Title 22, Deschutes County Development Procedures Ordinance 11. 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 areaz. 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 15, 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.E 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 B 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." 1251 farm dwelling. Although the secondary accessory farm dwelling use may have been operational on the Subject Property for sorne 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 "1 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). 0 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. !: 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. 1 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 1 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 Nsy Stk Growers Collectors of Native Plants license (nursery). Both of these licenses require specific permits from the Oregon Water Resources Department (OWRD). For this reason 1 F& 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 E:3 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.s 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 s 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)." X Staff (Staff Report [page 15] & 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 B manufactured homes shall be permitted as follows, subject to the requirements of the underlying zones: 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. 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 B 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 B 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 B manufactured homes. The limit to Class A and B manufactured homes in the (FP) Flood Plain Zone to only the 'primary dwelling' doesn't apply to the MUA-10 zone, in the same 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(B) 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 B in a large variety of situations and (B)(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.? 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 some 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 wouid 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 (Le., 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 ("KA"). 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 IN the County or other tribunal, ... 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 "'include[s] 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 complying with a voluntary compliance agreement even for an unrelated violation on the sarne 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.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.S] as additional findings for this approval criterion. 20 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 21 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. 23 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 24 hardship manufactured home met the required setbacks of DCC 18.32.040. The location of the proposed use will remain on the exact same 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 — Q. 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 660-013-0080] 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. 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; 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 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 31 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 5, 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.S.) 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 32 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. S. 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 it, 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 some 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. 36 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. MA 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 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 Gregory J. Frank, Hearings Officer Date: June 14, 2023 39 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. M Z) _,D a! y u,y N N N to !lD W u ll- I ,, IV M " M M N ! N N C C; C O O' O N F .N CL LL LL LL LL LL LL 0 'O'0 ''' N M ci ro NO M O 0 D1 NF+ 0�1 0 CA ++ bA 00 v c z 3 Q1 Lu N m m z v U d ; J u o °' a MC -D > L C i L .a (3j a) Q) .� -0 CO — m r L � v 3 Z z N Ln 00 t.0 r- -I r- Zt M O rn M LD N i N E E 7 y_ N O -O v c G O r O _0 T N to O m C v bA m U 41 J T L Q O L L O 3 CL O 1 E � s o s J � O N C T C : L G O M F- 0 G APPEAL APPLICATION - BOARD OF COUNTY COMMISSIONERS I94 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. Appellants 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 ( P.O. Box 6005, Bend, OR 97708-6005 Z; (541) 388-6575 @ cdd@deschutes.org 0 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-30") 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).2 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 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 syME m, as speciiied 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 312411989 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 18.1,16.050, Class A and B manufactured i-iomes 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 D manufactured avo not pev ritted in ar,y historic district or on any historic site. HISTORY Adopted by Ord. PL-15 on 111111979 Amended by Ord. 81-042 §5 on 12/3/1981 Amended by Ord. 89-004 §§3 and 5 on 3/24/1989 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 512911991 Amended by Ord. 96-003 §8 on 3/27/1996 Amended by Ord. 2000-033 §8 on 121612000 REVIEWED vt 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- 000162-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.org/24-7-23-000162-CU 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 W%dayof 2023. ATTEST: ln:�-d�ft�4t Recording Secretary ORDER No. 2023-029 BOARD OF COUNTY COMMISSIONERS ANTHONY DEBONE, Chair (.-At" PAfTI ADAIR, Vice Chair i!�:� 6-1�� PHIL CHANG, Commissioner ��31 E S CpG�a , BOAR® OF COMMISSIONERS 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 N�31 E S C0 6 2� BOARD OF COMMISSIONERS MEETING DATE: August 9, 2023 SUBJECT: Board review of a declaratory ruling to determine if the marijuana production facility approved under file no. 247-17-000907-AD has been initiated BACKGROUND AND POLICY IMPLICATIONS: On July 26, 2023, the Deschutes County Hearings Officer issued a decision ("Decision") on an initiation of use application associated with a marijuana production facility at 26295 Willard Road. Initiation of use is governed by Deschutes County Code ("DCC") 22.36.020, as detailed below. 22.36.020. Initiation of Use. A. For the purposes of DCC 22.36.020, development action undertaken under a land use approval described in DCC 22.36.010, has been "initiated" if it is determined that: 2. Substantial construction toward completion of the land use approval has taken place; or B. For the purposes of DCC 22.36.020, "substantial construction" has occurred when the holder of a land use approval has physically altered the land or structure or changed the use thereof and such alteration or change is directed toward the completion and is sufficient in terms of time, labor or money spent to demonstrate a good faith effort to complete the development. (emphasis added) As detailed in the Decision, there are three (3) elements for determining whether substantial construction has taken place are: (1) whether the holder of land use approval has physically altered or changed the use of the land; (2) whether the alteration or change was directed toward completion of the development; and (3) whether the expenditures of time, labor, or money demonstrate a good faith effort to complete the development. Staff notes that element number 1 includes the phrase "holder of the land use approval." The subject land use permit was approved in April of 2018. In this case, approximately 90-95% of what is needed to establish the use was completed prior to the property owner receiving land use approval. The Hearings Officer found it appropriate to consider these expenses because the property owner initiated discussions with the County on this use in early 2017; the aforementioned expenses occurred between those early 2017 discussions and the issuance of the land use approval; and that all of the expenses were clearly directed toward completion of the use. Staff believes this conclusion could give property owners the impression that it is permissible, and possibly advisable, to begin development of a project prior to land use approval. Staff believes perspective could then lead to a number of unintended consequences. 1. Development prior to land use approval would deprive the public and public agencies of the opportunity to participate in the land use process. One of the primary tenets of the land use system is public participation, as described under Statewide Planning Goal 1. 2. The County could see an increase in code violation cases. 3. Property owners could find themselves in the unwanted situation of having spent significant resources (time, effort, money) to establish a use prior to land use approval, only for the project to be denied. For these reasons, staff believes it appropriate to interpret the phrase "the holder of the a land use approval" to mean the time period from the land use decision becoming final to the end of the duration approval, as amended by any extensions or applicable legal proceedings such as an appeal. Staff believes this interpretation would avoid the potentially negative consequences detailed above. BUDGET IMPACTS: None ATTENDANCE: Avery Johnson - Assistant Planner Anthony Raguine - Principal Planner DECISION AND FINDINGS OF THE DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBER: HEARING DATE: HEARING LOCATION: OWNER: APPLICANT: APPLICANT'S REPRESENTATIVE: 247-23-000125-DR May 30, 2023, 6:00 p.m. Videoconference and Barnes & Sawyer Rooms Deschutes Services Center 1300 NW Wall Street Bend, OR 97708 Mailing Name: John Shelby Watson Jr. John Watson (the "Applicant") Michael R. Hughes, Hughes Law, Attorney for the Applicant SUBJECT PROPERTY: Map and Tax Lot: 1714260001000 Account: 131856 Situs Address: 26295 WILLARD RD, BEND, OR 97701 (the "Property") ZONING: Exclusive Farm Use (" BFU") REQUEST: Declaratory Ruling to determine whether the marijuana production facility approved under File No. 247-17-000907- AD has been initiated. HEARINGS OFFICER: Laura Westmeyer SUMMARY OF DECISION: The Hearings Officer finds that the Applicant has met its burden of proof in demonstrating that all applicable criteria have been satisfied. The Hearings Officer therefore APPROVES the Application, and finds that the marijuana production facility approved under File No. 247-17-000907-AD has been initiated pursuant to DCC 22.36.020. I. APPLICABLE STANDARDS AND CRITERIA Deschutes County Code ("DCC" or "County Code") Title 22, Deschutes County Development Procedures Ordinance Chapter 22.08.010, Application Requirements Chapter 22.36.010, Expiration of Approval Chapter 22.36.020, Initiation of Use Chapter 22.40, Declaratory Ruling II. BACKGROUND AND PROCEDURAL FINDINGS A. Application The Applicant has requested a Declaratory Ruling to determine whether the marijuana production facility approved under File No. 247-17-000907-AD has been initiated. B. Notice and Hearing Summary The notice of public hearing was published in The Bulletin on May 7, 2023 and was mailed pursuant to DCC 22.20 and DCC 22.24 on May 3, 2023. Pursuant to the notice of public hearing, the Hearings Officer presided over an evidentiary hearing on May 30, 2023, at 6:00 p.m. The hearing was held via videoconference, with County Planning Staff ("Staff"), the Applicant, and the Applicant's legal counsel, Michael Hughes, Hughes Law, present in the hearings room. At the start of the hearing, the Hearings Officer provided an overview of the quasi-judicial process, and instructed participants to direct their comments to the approval criteria and standards, and to raise any issues a participant wished to preserve for appeal. The Hearings Officer declared no ex parte contacts or bias to report, and asked for, but received no objections to the County's jurisdiction or to the Hearings Officer presiding over the matter. County Staff presented the staff report. Mr. Hughes presented the Application, on behalf of the Applicant. The Applicant testified at the hearing. There was no other testimony in favor of, in opposition to, or neutral to the Application. C. 150-day Clock The Application was submitted on February 22, 2023, and deemed complete on April 6, 2023. At the Hearing, the Applicant agreed to toll the clock by thirteen days, to allow time for final evidence, rebuttal, and legal argument. The 150th day on which Deschutes County (the "County") must take final action is September 16, 2023, which is a Saturday. D. The Record The record materials provided to the Hearings Officer include all of the following items under County File No. 247-23-000125-DR, which are accepted into the record of this Hearing: 1. Document Application Materials 23-125-DR 2. Document 2023-03-21 Incomplete Letter 23-125-DR 3. Document 2023-04-06 M. Hughes Incomplete Response 4. Document 2023-03-1OR. Scheid Agency Comment. pdf 247-23-000125 —HEARINGS OFFICER DECISION PAGE 2 OF 7 5. Document 2023-03-13 P. Russell Agency Comment.pdf 6. Document 2023-05-23 Staff Report 23-125-DR (the "Staff Report") 7. Document 2023-03-10 23-125-DR NOA 8. Document 2023-05-03 NOPH 23-125-DR 9. Document 2023-05-10 Affidavit of Publishing 23-125-DR 10. Document 2023-06-02 M. Hughes Testimony 11. Document 2023-06-12 Final Argument At the hearing, the Applicant requested to leave the record open for a period of thirteen days, in order to present final evidence and argument. The record was closed at the end of the open record period, on June 12, 2023. M. SUBSTANTIVE FINDINGS AND CONCLUSIONS A. Adoption of Staff Findings I find that all of the applicable criteria and procedures relating to this Application are identified in the County's Staff Report contained in the record to this Hearing. The Staff Report also contains a section of Basic Findings, which includes a determination that the Property is a legal lot of record and describes the general site. No participants to the hearing object to those portions of the Staff Report, and I adopt the Basic Findings contained therein as part of my Findings in this Decision, with the revised Review Period as identified above. The Staff Report contains an analysis and proposed findings for each of the criteria, including whether each criterion has been met or is inapplicable. I adopt, as my findings, the proposed findings contained in the Staff Report concerning DCC 22.08.010 Application Requirements; DCC 22.40, Declaratory Ruling; and DCC 22.36.020(A)(1) and (3), which find that the criteria contained therein are either met or are inapplicable to this Application. B. Compliance with DCC 22.36.010(B) Expiration of Approval; Duration of Approvals Findings: This section of the County Code provides that a land use permit is void two years after the date the decision becomes final, if the use that was approved is not initiated within that time period. There are allowances for extensions. The Applicant received land use approval to establish a marijuana production facility (including one greenhouse and one storage container) on the Property under File No. 247-17-000907-AD on April 12, 2018, and the decision became final on April 24, 2018. The Applicant twice received extensions of the approval, making April of 2022 the final date to have initiated the use. For the reasons discussed below, I find that the use approved under File No. 247-17-000907-AD was initiated prior to April 2022. D. Compliance with DCC 22.36.020(A)(2) and DCC 22.36.020(B), Initiation of Use A For the purposes of DCC 22.36.020 development action undertaken under a 247-23-000125 —HEARINGS OFFICER DECISION PAGE 3 OF 7 land use approval described in DCC 22.36.010, has been "initiated" if it is determined that ... Substantial construction toward completion of the land use approval has taken place. B. For the purposes of DCC 22.36.020, "substantial construction" has occurred when the holder of a land use approval has ph sy ically altered the land or structure or changed the use thereof and such alteration or change is directed toward the completion and is sufficient in terms of time labor or money spent to demonstrate a zoodLaith effort to complete the development. Findings: Under this section of the County Code, the three elements for determining whether substantial construction has taken place are: (1) whether the holder of land use approval has physically altered or changed the use of the land; (2) whether the alteration or change was directed toward completion of the development; and (3) whether the expenditures of time, labor, or money demonstrate a good faith effort to complete the development. The Property was approved for a marijuana production facility under File No. 247-17-000907-AD, which proposal was to construct one greenhouse for marijuana production and one storage container for security, storage, drying, and curing of marijuana product. At the Hearing, the Applicant testified that he bought the Property in 2015 for the sole purpose of marijuana production. He began working with the County in 2017 and said that he did not anticipate any issue with receiving land use approval because the proposed use fit within the allowable zoning uses on the Property; for this reason, he began working on the development while the land use application was in progress. The Applicant testified that the approved greenhouse and storage container had not yet been constructed on the Property, although the frame for the greenhouse had been placed. The Applicant testified that the Property had existing structures on it that he believed he could use for infrastructure; and that he upgraded the electrical system to allow for more service, which would be needed for the marijuana production, and to allow for odor and noise equipment, which were required as part of the land use approval. This testimony somewhat conflicts with the Staff Report, which states that the odor and noise control systems had not been physically installed, to -date. The Applicant testified that he installed security systems in place, including cameras and a steel door. The Applicant testified that he cleared the land on the Property to accommodate the greenhouse, and changed the water rights on the Property to accommodate the greenhouse. The Applicant testified that since 2016 through the date of the Hearing, he has employed a full-time employee for the marijuana production, and has used the Property for a medical marijuana grow. The Applicant stated that he purchased plastic for the greenhouse; that he put the frame of the greenhouse on the Property; and that 90-95% of what is needed for marijuana production is existing on the Property, all of which he installed and constructed in 2017, prior to receiving the land use approval and after discussing his land use application with the County. The Applicant testified that, at the time of the land use approval, the market for marijuana production was less favorable and he therefore put the project on hold. He stated that all that is needed to complete the development is to erect the greenhouse. 247-23-000125 —HEARINGS OFFICER DECISION PAGE 4 OF 7 I find that the first element of the substantial construction analysis —whether the holden of land use approval has physically altered or changed the use of the land --is met. This element may be broken down into two parts: requiring that: (1) a physical alteration or change in use of the land be made; and (2) that it be made by the holder of a land use approval. The parties are in agreement that there has been a physical alteration or change in use of the land, and I do so find. I base this finding on the Applicant's evidence and testimony of the greenhouse frame and equipment being placed on the Property in 2017, and the expenditures and system upgrades stated by the Applicant as occurring in 2017. The second part of the analysis requires that the alteration or change be made by the holder of a land use approval. While the Applicant is the holder of a land use approval, the Applicant was not the holder of a land use approval at the time of the physical alteration or change in use, because the Applicant's work on the Property took place prior to receiving the land use approval. Read together with the remaining elements of DCC 22.36.020(B), and from the absence of any timing requirement on a plain text reading of this County Code provision, I find that the holder of land use approval need not hold the approval at the time of the alteration or change in use, so long as the work was directed toward completion of the development. The second element of the substantial construction analysis is whether the alteration or change was directed toward completion of the development. There is no question as to whether the alteration or change in use need occur prior to the expiration of the land use approval (and any applicable extensions). Indeed, the parties are in agreement, and I also find, that the alteration or change took place prior to the expiration of the land use approval, because the changes took place in 2016-2017 and the land use approval was not granted until April 2018 and was not set to expire until April 2022. The question in this case is whether the alterations and changes that occurred prior to receiving land use approval may be considered as being directed toward completion of the development. As I understand the County's position in the Staff Report, it believes that expenditures made prior to the approval of the land use permit should not be considered as being directed toward the development, because no action may be considered directed toward an approved development, when there is no approved development. The County also posited that alterations and changes that are uniquely directed toward other developments that are not included in the permit must not be considered. The Applicant does not read the same chronology requirement into this element of the criterion, and argued that all of the efforts by the Applicant were directed toward the completion of the marijuana production development, even though the efforts were undertaken prior to the Applicant receiving approval for the same. I agree with the Applicant that actions taken by an applicant may be considered directed toward the completion of a development prior to receiving land use approval. To hold otherwise would be counter to the commonplace occurrence of business decisions being made in anticipation of certain events occurring. Whether or not those events actually occur is insubstantial to actions being made in their anticipation (not without risk of their nonoccurrence, which would, and commonly do, factor into the cost and liability of those business decisions). Furthermore, as the Applicant suggested, it would be impractical to require the duplication of expenditures simply for the purpose of making them after a land use approval has been provided, particularly where the expenditures 247-23-000125 — HEARINGS OFFICER DECISION PAGE 5 OF 7 were made with the reasonable -_xpectation that the approval would be granted. In this case, the Applicant provided credible testimony that the sole purpose for his purchase of this Property was for a marijuana production development. The Applicant also provided credible testimony that, after consultation with the County in 2017, and with his attorney, he believed the land use approval would be granted, because he was proposing a farm use in a farin zone. The Applicant applied for land use approval in late 2017, and the application was not approved until about four months later, in April of 2018, it is reasonable to conclude that within that four -month period, actions toward the development of the project might be made, in anticipation of the approval being granted. It is also reasonable to conclude that actions taken after determining the land use approval would likely be granted might be made in anticipation of the approval. In other words, any of the Applicant's actions from the time of initial consultation or pre -application with the County, through the date of approval. It is less clear whether expenditures made prior to any consultation regarding the likelihood of approval of the proposed development could be considered directed toward the completion of the development, as any such actions taken may be seen as more speculative than based in any known likelihood of success of the proposed development. For this reason, I do not consider any of the expenditures made prior to 2017, which is the first year the Applicant stated that he first began conversations with the County regarding the application. Regarding the expenditures made in 2017: At the Hearing, the Applicant described each of the expenditures and explained how they were made in furtherance of the marijuana production use. Based on the Applicant's testimony, I find that the Applicant met its burden of proof of establishing that the upgrades and expenditures made to the electrical, odor, and noise systems, existing buildings, permits, greenhouse frame and equipment, and other items on the list presented on page 8 of the Staff Report were undertaken for the purpose of completing the marijuana production facility and constitute an alteration or change in use. Further, there is no rebuttal evidence or testimony in the record that suggest these actions were taken for any other development purpose, nor were used for any other development purpose. The third and final element of the substantial construction analysis is whether the expenditures of time, labor, or money demonstrate a good faith effort to complete the development. Whether someone has made a "good faith effort" is inherently a subjective standard. I find that the Applicant did make a good faith effort to complete the development, based on the same reasons noted above. Specifically, I base my finding on the Applicant's credible testimony that all of the work identified above which he completed on the Property was for the purpose of completing the development; his explanation of each expenditure in regard to how it was directly made for the purpose of developing the marijuana production facility; his accounting of the expenditures and testimony and assertion that the development on this Property is 90-95% complete; the Applicant's explanation of the timing of the market, and specifically his reasons for moving quickly to further the development at the time of the initial proposal and how he put the project on hold when the market became less lucrative for the approved development. I further find no evidence in the record to rebut the Applicant's assertion that his efforts were made in good faith, nor any evidence or assertions of taking actions in bad faith. I therefore find that this element is met. IV. CONCLUSION, CONDITIONS OF APPROVAL, DURATION OF APPROVAL 247-23-000125 —HEARINGS OFFICER DECISION PAGE 6 OF 7 Based on the foregoing Findings, the Application is APPROVED. I find that the marijuana production facility approved under File No. 247-17-000907-AD has been initiated pursuant to DCC 22.36.020, with the following conditions of approval: 1. The conditions of approval associated with File No. 247-17-000907-AD shall remain in effect. As earlier noted, no party has asserted, and I do not find, that the proposed use has yet lawfully occurred; instead, I find that substantial construction toward completion of the land use approval has taken place under DCC 22.36.020, which in turn means that the use was initiated under DCC 22.36.010. The County requested that the duration of the approval be noted in this Decision; however, I do not find a basis in the County Code to impose a timeline for the duration of a decision made by declaratory ruling. In contrast, DCC 22.36.010(A)(2) specifically exempts declaratory rulings from the County Code regarding expirations of approval; and DCC 22.36.010(B) specifically provides for exemptions from any limitation on the duration of approval where an initiation of use has been found. Absent any County Code provision speaking to the duration of declaratory rulings; and absent any recommendation in the record from any party regarding the duration of this declaratory ruling, I therefore decline to impose any specific, additional duration restrictions to the land use approval under File No. 247-17-000907-AD. Dated this 26th day of July, 2023 Laura Westmeyer Deschutes County Hearings Officer 247-23-000125 — HEARINGS OFFICER DECISION PAGE 7 OF 7 BOARD OF COMMISSIONERS MEETING DATE: August 9, 2023 SUBJECT: Deliberations: Rural Accessory Dwelling Unit (ADU) Text Amendments RECOMMENDED MOTION: The Deschutes County Planning Commission recommends approval of file no. 247-22- 000671-TA with modifications. BACKGROUND AND POLICY IMPLICATIONS: The Board will deliberate on August 9, 2023 in relation to a request for a County -initiated Legislative Text Amendment to several chapters of Deschutes County's Zoning Code (File No. 247-22-000671-TA). The proposed amendments would establish local provisions for rural accessory dwelling units (ADUs) as identified in Senate Bills 391 and 644. The full record is located on the project webpage: https://www.deschutes.org/cd/page/247-22- 000671-ta-rural-accessory-dwelling-unit-adu-text-amendments BUDGET IMPACTS: None ATTENDANCE: Will Groves, Planning Manager Kyle Collins, Associate Planner MEMORANDUM TO: Deschutes County Board of Commissioners (Board) FROM: Kyle Collins, Associate Planner Will Groves, Planning Manager DATE: August 2, 2023 SUBJECT: Deliberations: Senate Bills (SBs) 391 and 644 - Rural Accessory Dwelling Unit (ADU) Legislative Amendments On August 9, 2023, the Board of County Commissioners (Board) will conduct deliberations on an County -initiated legislative text amendment concerning local provisions for rural ADUs as identified in Senate Bills (SB) 391' and 6442 (file no. 247-22-000671-TA). I. BACKGROUND Staff submitted an initial 35-day Post -Acknowledgement Plan Amendment (PAPA) notice to the Department of Land Conservation and Development (DLCD) on August 17, 2022. A public hearing was held with the Deschutes County Planning Commission (Commission) on September 22, 20223. The Commission held deliberations and provided recommendations on October 27, 20224. Subsequently, legislation was passed by the Oregon Legislature which required several changes to the original proposed amendments to maintain compliance with state standards. Specifically, SB 644 was passed in May 2023 and provides direction to local jurisdictions looking to adopt rural ADU standards prior to formal release of the Statewide Wildfire Hazard Map required by SB 762. Additionally, SB 80s was passed which alters the original standards and terminology used within the forthcoming Statewide Wildfire Hazard Map. Per Board direction, staff submitted a revised 35-day PAPA notice to DLCD on June 7, 2023 and held a new work session with the Commission on July 13, 20236. 1 https://olis oregonlegislature gov/liz/2021 R1/Downloads/MeasureDocument/SBO391/A-Engrossed 2 https•//olis oregonlegislature gov/liz/2023Rl/Downloads/MeasureDocument/SB644/Enrolled 3 https://olis.oregonlegislature.gov/liz/2023Rl/Downloads/MeasureDocument/SB80/Enrolled 4 See Deschutes County Planning Commission October 27, 2022 Agenda for more information: https://www.deschutes.org/bc-pc/page/planning-commission-21 5 httDS://Olis.ore2onleizislature.gov/liz/2023Rl/Downloads/MeasureDocument/SB80/Enrolled 6 See Deschutes County Planning Commission July 13, 2023 Agenda for more information: https://www.deschutes.org/bc- pc/page/planning-commission-29 Following a Board work session on July 24, 20237 and public hearing on July 26, 20238, the Board voted to keep the written record open until Wednesday August 91" at 9am with deliberations also scheduled for August 91", 2023. II. BOARD DELIBERATIONS On August 9, 2023, the Board will deliberate on the proposed legislative text amendments. If the Board finds that additional deliberations are necessary, the Board may schedule a future date for continued deliberations. If the Board finds no additional deliberations are necessary, the Board may then vote on the proposal. The full record is available for inspection at the Planning Division and at the following website: https://www.deschutes.org/adu. Board Decision Matrix A more thorough review and discussion of the subject proposal's compliance with the applicable approval criteria and issues is provided in Attachment 1 - Board Decision Matrix, prepared in conjunction with this deliberation memorandum. III. NEXT STEPS If the Board determines that additional deliberations are necessary, staff will work with the Board to schedule a future meeting for continued deliberations. If the Board concludes their deliberations during the August 9, 2023 meeting, the Board may then vote on whether to approve the proposal. If the Board renders a vote during the August 9, 2023 meeting, staff will coordinate with the Board to return for a future meeting during which a draft ordinance and relevant exhibits will be presented and a first reading of the ordinance initiated. ATTACHMENTS: 1. Board Decision Matrix 2. Staff Report and Draft Amendments See Board of County Commissioners July 24, 2023 Agenda for more information: https•//www deschutes or /g bcc/page/board-county_commissioners-meeting-115 8 See Board of County Commissioners July 26, 2023 Agenda for more information: https://www deschutes org/bcc/page/board-county-commissioners-meeting-116 Page 2 of 2 X Qc G Z O NQ li W m J W in u u O co m o s � E J. �, > E p a m _ O ;.0 c m 'E O : v oo o a a 3: a. 'C -gyp 4 N ,fin m cui Cp .� p E �-0 ov `0 0 �� p Uo wc 0y0 E Yv 0'E O ooC m O O E i C w V a. 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O p +•' {(2�- m L d G y .0 G) •L 10 (J U M `.= C Q' a C y 7 C v`> �p u y 3 3 o c w °�� v a° c L 7_ 0 V m o �° °-0 c V 7 N w E N Y c C N d W Ll U o w Z• 'n O N 7 'W CO C o Q> u ,m ; v v ro m W m c N b° v o at- -0 S mm 0 m m v O o v d +.• w U m � v r'G°M .N lC T B 'O 3o u E o 0 T L Y c M co v c o g 7 v % z N o u .00- P) s L ,u Q = o C N m c N o Q d X 2 m (�• 7 L w a—� D o w m3F o u 0O aLry 3¢ r W O N O u u O m F 0 N N r 4 STAFF REPORT FILE NUMBER: 247-22-000671-TA APPLICANT: Deschutes County Community Development 117 NW Lafayette Avenue Bend, Oregon 97703 PROPERTY OWNER: N/A REQUEST: Pursuant to Senate Bills (SB) 391 and 644, Text Amendments to allow an owner of a lot or parcel within a rural residential exception area to construct one accessory dwelling unit (ADU) subject to certain restrictions and limitations. STAFF CONTACT: Kyle Collins, Associate Planner I. APPLICABLE CRITERIA: Deschutes County lacks specific criteria in DCC Titles 18, 19, 22, or 23 for reviewing a legislative text amendment. Nonetheless, since Deschutes County is initiating a legislative text amendment, the County bears the responsibility for justifying that the amendments are consistent with Statewide Planning Goals and its existing Comprehensive Plan II. BASIC FINDINGS: A. Senate Bill 391 On June 23, 2021, the Oregon Legislature adopted Senate Bill (SB) 391, which authorizes counties to allow an owner of a lot or parcel within a rural residential exception area to construct one accessory dwelling unit (ADU) subject to certain restrictions and limitations.' SB 391 does not obligate a county to allow ADUs, nor does it prohibit a county from imposing any additional restrictions beyond what is mandated in state law. Rural residential exception areas and their corresponding zones exist throughout Oregon. By definition, rural residential zones exist outside urban growth boundaries (UGBs), but are excluded 1 https://olis.oregonlegislature.gov/liz/202lRl/Downloads/MeasureDocument/SB391 1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005 Q, (541) 388-6575 @cdd@deschutes.org ®www.deschutes.org/cd from the state's resource land (farm and forest zone) protections. While the protections afforded to resource lands allow residential uses only in conjunction with a farm or forest use, rural residential zones allow a dwelling as a primary use of the land. Prior to the adoption of SB 391, state law allowed counties to permit an additional dwelling on a property containing a house built prior to 1945.2 However, unlike urban zones, rural residential zones did not have other by -right accessory dwelling options, making inter -generational and alternative housing options difficult to achieve. SB 391 only authorizes ADUs on lands zoned for rural residential use. Areas zoned for rural residential use are defined by ORS 215.501 to mean "land that is not located inside a UGB as defined in ORS 195.060 (Definitions) and that is subject to an acknowledged exception to a statewide land use planning goal relating to farmland or forestland and planned and zoned by the county to allow residential use as a primary use." The applicable zoning designations in Deschutes County for these lands are Multiple Use Agricultural (MUA-10), Rural Residential (RR-10), Suburban Low Density Residential (SR 2.5), Urban Area Reserve (UAR-10), and Westside Transect Zone (WTZ). B. Senate Bill 644 On May 8, 2023, the Oregon Legislature adopted Senate Bill (SB) 644, which amends requirements relating to wildfire hazard mitigation for development of accessory dwelling units on lands zoned for rural residential use.' Prior to adoption of SB 644, counties were required to wait for final adoption of the Statewide Map of Wildfire Risk (Statewide Wildfire Hazard Map) from the Oregon Department of Forestry (ODF) as identified in SB 7624 prior to adoption of any local administering rural ADU standards. SB 644 decouples adoption of the Statewide Map of Wildfire Risk (Statewide Wildfire Hazard Map) from the adoption of any local rules allowing rural ADUs. During any interim period where a local jurisdiction has adopted rules allowing ADUs and prior to the release of the final map, any constructed ADUs will be subject to the home hardening building codes as described in section R327 of the Oregon Residential Specialty Code. C. Deschutes County Rural ADU Ordinance In addition to only applying to lands recognized as rural residential exception areas, SB 391 also contains minimum criteria that must be met for a lot or parcel to qualify for an ADU. Many of those criteria are general in nature and therefore require counties to provide their own interpretations or definitions. At the same time, SB 391 contains several provisions related to wildfire hazard mitigation, which relied on and referred to actions at the state level as directed by the passage of SB 762, a comprehensive wildfire hazard mitigation bill.' While wildfire requirements were being created at the state level, staff worked with the Board of County Commissioners to "translate" the language of SB 391 into the local code presented in these amendments. 2 House Bill 3012 (2017). 3 https://olis.oregonlegislature.gov/iiz/2023Rl /Downloads/MeasureDocument/SB644/Enrolled 4 https://olis.,o.regonlegislature.gov/liz/2021 R1 /Downloads/MeasureDocument/SB762/Enrolled 5 SB 1533 (2022) corrected broken links in SB 762 related to wildfire mapping. 247-22-000671 JA Page 2 of 43 III. PROPOSAL: This is a legislative text amendment to Deschutes County Code (DCC), Title 18, County Zoning, and Title 19, Bend Urban Growth Boundary Zoning Ordinance. The primary purpose of the amendments is to allow rural ADUs per the adoption of SB 391 and SB 644. The proposal creates two new subsections (effectively the same, but pertaining to different zones in Titles 18 and 19) that govern the criteria for rural ADUs. Table 1 provides a summary of each provision of the amendments. Table 1 - SB 391 & SB 644 Requirements Topic SB 391/SB 644 Requirements Comment SB 644 Section 1(2)(c) requires one single-family DCC 18.116.355(13)(1) and DCC Single Family Dwelling dwelling to be located on the lot or parcel. 19.92.160(B)(1) are consistent with SB 391/SB 644. SB 644 Section 1(2)(a) requires that the lot or DCC is consistent parcel is not located within an area designated as 91.355(B)(2) with SB I56 644, Redmond's SIB 391 Urban Reserve Area an urban reserve as defined in ORS 195.137. In Urban Reserve Areas is not near Deschutes County, the Redmond Urban Reserve lands zoned in Title 19, therefore it Area is the only urban reserve that meets this is not cited in DCC 19.92.160. definition. SB 644 Section 1(1)(b) requires that "Area zoned for rural residential use" has the meaning given that term in ORS 215.501. ORS 215.501(1)(b), "Area zoned for rural Pursuant to DLCD, Acknowledged residential use" means land that is not located nonresource plan amendments Nonresource Lands inside an urban growth boundary as defined in and zone changes from Exclusive ORS 195.060 (Definitions) and that is subject to an Farm Use (EFU) to RR-10 or MUA- acknowledged exception to a statewide land use 10 are eligible for an ADU. planning goal relating to farmland or forestland and planned and zoned by the county to allow residential use as a primary use. SB 644 Section 1(2)(i) requires that no portion of _ DCC 18.116.355(B)(3) is consistent the lot or parcel is within a designated area of with SB 391/SB 644. The Metolius Areas of Critical State `' critical state concern. Areas of critical state Area of Critical State Concern is Concern concern are generally defined in ORS 197.405 and not near lands zoned in Title 19, apply to the Metolius Area of Critical State therefore it is not cited in DCC Concern in ORS 197.416. 19.92.160. DCC 18.116.355(13)(4) and DCC 19.92.160(B)(2) are consistent with SB 391 /SB 644. Minimum Lot Size SB 644 Section 1(2)(b) requires the subject lot or DCC 18.116.355(B)(4) requires a parcel be at least two acres in size. p minimum lot or parcel to be at least 5 acres in size south of Sunriver due to groundwater protection. 247-22-000671-TA Page 3 of 43 Topic SIB 391/SB 644 Requirements Comment OCC 18.1 i 6,355(B)(5) and DCC SB 644 Section 1(2)(m)(A) requires that the ADU 19.92.160(B)(3) are consistent with Setbacks has adequate setbacks from adjacent lands SB 391. Both require a minimum zoned for resource use. setback of 100 feet between the ADU and adjacent EFU and Forest Use zoned (F-1, F-2) properties. DCC 18.116.355(B)(6) and DCC 19.92.160(B)(4) are consistent with SB 391/SB 644. SB 644 Section 1(2)(f) limits the size of the ADU to Usable floor area is defined as, ADU Size 900 square feet of useable floor area. "the area of the accessory dwelling unit included within the surrounding insulated exterior walls, exclusive of garages, carports, decks and porch covers." DCC 18.116.355(B)(7) and DCC 19.92.160(B)(5) are consistent with SB 391/SB 644. SB 644 Section 1(2)(g) requires the ADU to be Both require the ADU be located Distance from Dwelling located no farther than 100 feet from the single no farther than 100 feet from the family dwelling.6 existing single family dwelling, measured from a wall of the single-family dwelling to the nearest part of the useable floor area of the ADU. SB 644 Section 1(2)(e) requires the ADU to comply DCC 18.116.355(B)(8) and DCC Sanitation and with applicable sanitation and wastewater 19.92.160(B)(6) are consistent with Wastewater regulations. SB 391/SB 644. SB 644 Section 1(2)0) requires the lot or parcel be DCC 18.116.355(B)(9) and DCC Fire Protection District served by afire protection service provider with 19.92.160(B)(7) are consistent with Service professionals who have received training or SB 391 /SB 644. certification described in ORS 181A.410. DCC 18.116.355(B)(10) and DCC 19.92.160(B)(8) are consistent with SB 391/SB 644. SB 644 Section 1(2)(m)(B) requires that the ADU As an alternative standard, both Access and Evacuation has adequate access for firefighting equipment sections allow certification of and safe evacuation and staged evacuation areas. access by the applicable fire protection district and that there are evacuation plan and authorized staged evacuation areas. 6 The bill language and legislative history are unclear if the entire ADU must be entirely within 100 feet of the dwelling or just a portion. Local governments are therefore granted deference to interpret this provision. 247-22-000671-TA Page 4 of 43 Topic SB 391/SB 644 Requirements Comment SB 644 Section 1(2)(k) ,egiiires that if the lot or DCC 18 116.355{B)(12) and DCC parcel is in an area identified an the statewide 19.92.160(6)(10) are consistent map of wildfire risk described in ORS 477.490 as with SB 391/SB 644, within the wildland-urban interface, the lot or Wildland Urban Interface parcel and accessory dwelling unit comply with Consistent with SB 644, the code (WUI) Defensible Space any applicable minimum defensible space sections identify alternatives for Requirements requirements for wildfire risk reduction - properties wishing to develop established, by the State Fire Marshal under ORS ' rural ADUs prior to and after the 476392 and any applicable local requirements adoption of the State Map of for defensible space established by a local Wildfire Risk identified in SB 762. government pursuant to ORS 476.392 SB 644 Section 1(2)(1)(A) requires that if the lot or parcel is in an area identified on the statewide DCC 18.116.355(B)(11) and DCC map of wildfire risk described in ORS 477.490, the 19.92.160(B)(9) are consistent with ADU must comply with R327 (fire hardening SB 391/SB 644. standards) in the Oregon Residential Specialty W!Idland Urban Interface Code. Consistent with SB 644, the code (WUI) Fire Hardening sections identify alternatives for SB 644 Section 1(2)(1)(B) requires that if no properties wishing to develop statewide map of wildfire risk has been adopted, rural ADUs prior to and after the the ADU must comply with R327 (fire hardening adoption of the State Map of standards) in the Oregon Residential Specialty Wildfire Risk identified in SB 762. Code SB 644 Section 1(2)(d) requires the existing single- family dwelling property on the lot or parcel is not DCC 18.116.355(B)(13) and DCC Nuisance subject to an order declaring it a nuisance or 19.92.160(B)(11) are consistent subject to any pending action under ORS 105.550 with SB 391 /SB 644. to 105.600. SB 644 Section 1(2)(m)(C)(4)(a) and (b) preclude a Subdivision and Other subdivision, partition or other division of the lot DCC 18.116.355(B)(14) and DCC Accessory Dwelling or parcel so that the existing single-family 19.92.160(B)(12) are consistent Unit Limitations dwelling is situated on a different lot or parcel with SB 391/SB 644. than the ADU; and precludes construction of an additional ADU on the same lot or parcel, DCC 18.116.355(B)(15) and DCC SB 644 Section 1(2)(m)(C)(5) allows a county to 19.92.160(B)(13) are consistent require that the ADU be served by the same with SB 391 /SB 644. water source or water supply system as the existing single-family dwelling. If the ADU is While not requiring the same Water Supply served by a well, the construction of the ADU water source, DCC shall maintain all setbacks from the well required 18.116.355(B)(15) and DCC by the Water Resources Commission or Water 19.92.160(B)(13) require setbacks Resources Department. from the well to be maintained from an ADU. 247-22-000671-TA Page 5 of 43 Topic SB 3911SB 644 Requirements Comment --_ SB 644 Section 'i (2)(m)!C);6) recognizes that a single-fa.rrtily dwelling and an ADU are considered DCC 18.1152355(B)(17) and DCC Water Right Exempt Use a single unit and therefore do not require a 19.92. i 60(B)(15) are consistent groundwater permit from the Oregon Water with SB 391 iSB 644. Resources Department. SB 644 Section 1(2)(h) requires that no ADUs be permitted in areas if the water supply source for the accessory dwelling unit or associated lands or gardens will be a well using water under ORS DCC 18.116.355(B)(18) and DCC Water Right Restrictions 537.545 (1)(b) or (d), no portion of the lot or 19.92.160(B)(16) are consistent parcel is within an area in which new or existing with SB 391/SB 644. ground water uses under ORS 537.545 (1)(b) or (d) have been restricted by the Water Resources Commission'. DCC 18.116.355(B)(19) and DCC SB 644 Section 1(2)(m)(C)(3) prevents an ADU 19.92.160(B)(17) are consistent Vacation Occupancy from being used for vacation occupancy as with SB 391/SB 644. defined in ORS 90.100. Both require a restrictive covenant be recorded to ensure compliance. 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 and Board of County Commissioners. 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. 7 Deschutes County does not contain any critical groundwater areas as defined by the Water Resources Commission. 247-22-000671-TA Page 6 of 43 FINDING: This criterion will be rnef as v<<,as pu,'.,!ished in tho Bead Bulletin newspaper for the Planning Commission public heariand the Board of County %c ma—iissioners' public hearing. B. 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: Given the proposed legislative amendments do not apply to any specific property, no individual notices were sent. 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 September 22, 2022 and subsequently reviewed the proposed amendments on July 13, 2023. The Board then held a public hearing on July 26, 2023. These criteria are met. 247-22-000671-TA Page 7 of 43 Section 22,12..050 Final De.-;sion All legislative changes shall be adopted ky ordinance FINDING: The proposed legislative changes will be implemented by Ordinance No. [number TBD] upon approval and adoption by the Board of County Commissioners. This criterion will be met. B. Statewide Planning Goals and Guidelines Goal 1: Citizen Involvement: The amendments do not propose to change the structure of the County's citizen involvement program. Notice of the proposed amendments was provided to the Bulletin for the Board public hearing. Goal 2: Land Use Planning: This goal is met because ORS 197.610 allows local governments to initiate post acknowledgments plan amendments (PAPA). An Oregon Land Conservation and Development Department 35-day notice was initiated on August 17, 2022. An Oregon Land Conservation and Development Department 35-day notice was reinitiated on June 7, 2023 to capture amendments required by state legislative action. The Planning Commission held a public hearing on September 22, 2022 and the Board of County Commissioners held a public hearing on July 26, 2023. The Findings document provides the adequate factual basis for the amendments. Goal 3: Agricultural Lands: No changes related to agricultural lands are proposed as part of the text amendments. This goal does not apply. Goal 4: Forest Lands: No changes related to forest lands are proposed as part of the text amendments. This goal does not apply. Goal 5. Open Spaces Scenic and Historic Areas and Natural Resources: By adopting SB 391 in 2021 and SB 644 in 2023, the Oregon Legislature added a new use, ADU, to rural residential exception areas. Local governments can choose to allow this use by: 1) amending their zoning codes and complying with SB 391 /SB 644's development standards. Goal 5 does not apply. However, to the extent that it does, local governments apply Goal 5 to a PAPA when the amendment allows a new use and the new use "could be" a conflicting use with a particular Goal 5 resource site on an acknowledged resource list. Certain areas in rural Deschutes County, zoned MUM 0 and RR- 10 contain Goal 5 resources because they are overlaid with a Wildlife Area Combining Zone. Two zoning codes are being amended to allow Rural ADUs and are therefore subject to an ESEE Analysis. No other changes to the code warrant specific ESEE Analysis as they are not adding new uses that conflict with Goal 5 resources. The ESEE analysis is included in Appendix A which is attached to this document. Goal 6• Air Water and Land Resources Quality: The proposed text amendments do not propose changes to the County's Comprehensive Plan policies or implementing regulations for compliance with Goal 6, and therefore are in compliance. However, it is worth noting that the amendments preclude citing an ADU south of Sunriver on lots or parcels less than 5 acres. The eligible lot or parcel 247-22-000671-TA Page 8 of 43 size in this area of the Coun v is 3 acres lay-, er. In the RR-10 zone youth of Sunriver, there are 1,129 tax lots between 2 acres or larger, and :;19 tax lots 5 acres o, larger, Goal 7: Areas Subject to Natural Disasters and Hazards: The proposed text amendments do not propose to changes the County's Comprehensive Plan or implementing regulations regarding natural disasters and hazards; therefore, they are in compliance. Eligible properties subject to SB 762/SB 644 and those constructed prior to adoption of the State Map of Wildfire Risk, will be required to comply with Oregon Residential Specialty Code (R327) to fire harden the ADU and coordinate with the Oregon State Fire Marshal or local fire protection districts to ensure the property has defensible space. Goal 8: Recreational Needs: Accessory Dwelling Units are not a recreational use or need. This goal does not apply. Goal 9: Economic Development: Accessory Dwelling Units are not primarily economic in nature. This goal does not apply. Goal 10: Housing: This goal is not applicable because unlike municipalities, unincorporated areas are not obligated to fulfill certain housing requirements. Goal 11: Public Facilities and Services: Accessory Dwelling Units in the rural county typically rely on domestic wells and onsite wastewater treatment systems. A Goal 11 exception would be required for a centralized sewer system and would need to be applied on a property specific, needs related basis. This goal does not apply. Goal 12: Transportation: By adopting SB 391 in 2021 and SB 644 in 2023, the Oregon Legislature added a new use, ADUs, to rural residential exception areas. Local governments can choose to allow this use by amending their zoning codes and complying with SB 391/SB 644's development standards. ADUs will still be subject to Transportation System Development Charges (SDCs) prior to the issuance of a building permit. To the extent that the Transportation Planning Rule at OAR 660-012-0060 does apply, staff notes the following comments from the County's Senior Transportation Planner: The Transportation Planning Rule (TPR) at OAR 660-012-0060 requires a determination if a new land use regulation will significantly affect a transportation facility. Approximately 9,831 lots could be eligible for a rural accessory dwelling unit (ADU) based on zoning and size of the tax lot with roughly 3,000 tax lots being eligible immediately. The remaining roughly 6,000 tax lots' eligibility will need to be determined based on the wildfire rules and requirements in development based on Senate Bill (SB) 763 [sic]. The potential lots for a rural ADU are geographically spread out: Bend area: 3,876 lots 247-22-000671-TA Page 9 of 43 • Redmond area: 2,886 lots • Sisters area: 1576 lots • South County: 1,123 lots The County is currently updating its 2010-2030 Transportation System Plan (TSP) to 2020- 2040. The analysis of future traffic volumes only indicated a few intersections that would not meet County performance standards. Both were tied to the Deschutes Junction interchange at US 97/Deschutes Market Road-Tumalo. The TSP has planned improvements to mitigate the deficiencies at those intersections. The geographic distribution of the lots, the adequate reserve capacity on the County system, the low trip generation of each home, an average of nine daily trips, including one p.m. peak hour trip, and the fact the lots will develop over years and years, means the road system is adequate to handle the traffic volumes generated by rural ADUs. The rural ADUs do not result in any changes to the County's functional classifications or access management policies. The County collects transportation system development charges (SDCs) for all new developments, including single-family homes. The SDC rate is indexed to construction costs and resets every July 1. As a rural ADU is essentially a second home on the property, the County would collect SDCs as each rural ADU develops. The current SDC rate for a single-family home is $4,115. If the SDC rate remained unchanged, which is highly unlikely, the 9,831 lots would generate $38.6 million dollars in SDCs. The addition of a second rural ADU on approximately 9,381 lots will not create a significant nor adverse effect to the County transportation system and thus complies with the TPR. Goal 13: Energy Conservation: Any future site -specific application for an ADU will be required to incorporate energy conservation measures through the Oregon Building Code. This goal does not apply. Goal 14: Urbanization: The purpose of Goal 14 is to direct urban uses to areas inside UGBs. As the proposed amendments do not seek to allow urban uses on rural land, nor do they seek to expand an existing urban growth boundary, this goal does not apply. Goals 15 through 19: Deschutes County does not contain any of the relevant land types included in Goals 15-19. Therefore these goals do not apply. C. Deschutes County Comprehensive Plan Chapter 3, Rural Growth Section 3.3, Rural Housing 247-22-000671-TA Page 10 of 43 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. FINDING: Implementing SB 391 and SB 644, which allows ADUs to be sited in rural residential exception areas, is consistent with Policy 3.3.5. V. CONCLUSION: Based on the information provided herein, the staff recommends the Board of County Commissioners approve the proposed text amendments to allow an owner of a lot or parcel within a rural residential exception area to construct one accessory dwelling unit (ADU) subject to certain restrictions and limitations. 247-22-000671-TA Page 11 of 43 Appendix A: ESEE Analysis Document to File No. 247-22-000671-TA Deschutes County Community Development July 5, 2023 247-22-000671-TA Page 12 of 43 Table of Contents Chapter 1: Overview of Goal 5 and ESEE Analyses .................. ..............11 ............................ Chapter 2: Deschutes County Goal 5 Inventory and Methodology..................................14 Chapter 3: Conflicting Use Analysis......................................................................................16 Chapter4: Impact Areas........................................................................................................19 Chapter5: ESEE Analysis........................................................................................................20 Chapter6: ESEE Decision.......................................................................................................27 Chapter 7: Program to Achieve Goal 5.................................................................................28 References Attachment 1 - Deschutes County Goal 5 Inventory Summary Table Attachment 2 - Inventory Site Maps 247-22-000671-TA Page 13 of 43 Chapter 1: Overview of Goal 5 and ESEE Analyses Introduction This appendix report was prepared to supplement the findings document associated with File No. 247-22-000671-TA. Deschutes County is amending Deschutes County Code (DCC), Titles 18 and 19 to allow Rural Accessory Dwelling units (ADUs) consistent with Senate Bill (SB) 391 (2021) and SB 644 (2023) in Multiple Use Agricultural (MUA-10), Rural Residential (RR-10), Suburban Low Density Residential (SR 2.5), Urban Area Reserve (UAR-10), and Westside Transect Zones (WTZ). DCC Chapter 18.88 is the Wildlife Area (WA) Combining Zone, which recognizes four Goal 5 inventories: Antelope Range, Deer Migration Corridor, Deer Winter Range, and Significant Elk Habitat. Certain areas in rural Deschutes County, zoned MUA-10 and RR-10, are overlaid with a Deer Migration Corridor, Deer Winter Range, and/or Significant Elk Habitat. In addition, there are some areas zoned MUA-10 and RR-10 that contain Goal 5 riparian resources and their associated fish, furbearer, waterfowl, and upland game bird habitat. Recognizing that an ADU is a new conflicting use in the WA Combining Zone, Deschutes County is applying Goal 5 in consideration of this Post Acknowledgment Plan Amendment (PAPA). The full findings document provides additional detail and background information regarding the intent of the amendments and compliance with other applicable local and state regulations outside of Statewide Land Use Planning Goal 5 - Natural Resources, Scenic and Historic Areas, and Open Spaces. Deschutes County Goal 5 Program The purpose of Goal 5 is "to protect natural resources and conserve scenic and historic areas and open spaces." Local governments, as part of the Comprehensive Planning process, are required to inventory the extent, location, quality, and quantity of significant natural resources within their jurisdictional boundaries. Following this inventory, local governments then conduct an economic, social, environmental, and energy (ESEE) analysis to determine the extent to which land uses should be limited in order to adequately protect significant resources. Following an ESEE analysis, governments then establish a program to protect significant natural resources. Deschutes County established its initial Goal 5 natural resource inventory, ESEE analyses, and protection programs between the years of 1988-1994, as part of periodic review. In reviewing this document, it is important to acknowledge there are six policies and development standards within the Deschutes County Comprehensive Plan and DCC that were established through ESEEs over time that could still limit the development of ADUs near inventoried Goal 5 resources. Deschutes County finds the proposed amendments do not alter the following existing protections. 1. Setback Protections: 100-foot structural setback from the ordinary high water mark (OHWM) of rivers and streams. 247-22-000671-TA Page 14 of 43 2. Scenic Prote ctilo;-is: Develciprnent ri ar rivers in the l._arrdscape. Maniagernent Combining Zom, must be r,evievwcd fcc aesthetic cornpatibility. 3. Wetland Protections: Prohibition of fill or removal of any material or wetland vegetation, regardless of the amount, within the bed and banks of any stream or river or in any wetland unless approved as a conditional use. 4. Mitigation Protections: Impacts to any wetland or riverbank impacts to be fully mitigated, as evaluated by Oregon Department of Fish and Wildlife (ODFW). 5. Flood Plain Protections: All new construction, expansion or substantial improvement of an existing dwelling, an agricultural related structure, a commercial, industrial or other non-residential structure, or an accessory building in a designated Flood Plain must obtain a conditional use permit. 6. Combining Zone Requirements: Deer Migration Corridor, Deer Winter Range, Elk Habitat, and Sensitive Bird and Mammal Habitat have site specific requirements including development setbacks and/or seasonal construction requirements to prevent impacts to sensitive species and habitat. Required Steps and Discretionary Review Local governments are required to comply with Goal 5 when a PAPA allows a new use and the new use "could be" a conflicting use with a particular Goal 5 resource site on an acknowledged resource list.$ Deschutes County is amending the MUA-10, RR-10, SR 2.5, UAR-10 and WTZ zoning chapters to allow ADUs consistent with SIB 391 (2021) and SB 644 (2023). ADUs have the potential to generate a certain level of noise and habitat alteration. As this new use could potentially impact Goal 5 resources, Deschutes County is conducting an ESEE Analysis to identify potential consequences and protections related to the amendments. ADUs will be added as a new permitted use in the MUA-10, RR-10, SR 2.5, UAR-10 and WTZ zones. As shown below, only two of those zones, MUA-10 and RR-10 contain Goal 5 resources and are being reviewed as part of this ESEE analysis. Table 2: Zones Containing Goal 5 Resources DCC Chapter 18.32, Multiple Use Agricultural Zone DCC Chapter 18.60, Rural Residential Zone s OAR 660-023-0250(3)(b) • DCC Chapter 19.12, Urban Area Reserve Zone • DCC Chapter 19.20, Suburban Low Density Residential Zone • DCC Chapter 19.22, Westside Transect Zone 247-22-000671-TA Page 15 of 43 ESi_Es are rnernt to be analyti(. al i.'_)u The Z:vi"ilE-li � i Cile _�`_ I� t.'I�� F: iOn rI and is I ltended to c � e • rt,Cr C be conducted by planning staff s?s; lg existing ir,for� nation. ,� n i_, no r7e Ant to locus exclusively on environmental impacts such as an F-nviroriinentai Impact Staterrlent (EIS) under the National Environmental Policy Act (NEPA). Additionally, Goal : explains "the ESEE analysis need not be lengthy or complex, but should enable reviewers to gain a clear understanding of the conflicts and the consequences to be expected." 9 In utilizing this analytical tool, there are a few steps jurisdictions must include and address in accordance with OAR 660-023 - Procedures and Requirements for Complying with Goal 5: 1. Identify Conflicting Uses - Does the land use or activity negatively impact natural resources? 2. Determine Impact Area - What is the geographic extent to which land uses or activities adjacent to natural resources could negatively impact those resources? 3. Analyze ESEE Consequences - What are the positive and negative consequences (both for development and natural resources) of a decision to fully protect natural resources, fully allow conflicting uses, or limit conflicting uses? 4. Develop a program - How and to what extent will the natural resources be protected based on the ESEE analysis? A response to each of these steps is included throughout this report. The relevant page and chapter can be found in the table of contents. 9 OAR 660-023-0040(1) 247-22-000671 JA Page 16 of 43 Chapter 2: Deschutes County Goal 5 Inventory and Niethadology 660-23-0030 - Inventory Goal 3 Resources Stemming from periodic review, Deschutes County adopted inventories for a variety of Goal 5 natural resources (Attachment 1). Some of these resources have mapped geographic boundaries such as Deer Winter Range, whereas others are described as being located in general areas - such as furbearer habitat in riparian corridors. The inventories were produced at a countywide scale, with additional detail for the Deschutes River and its tributaries through the Deschutes County/City of Bend River Study. County staff digitized these habitat boundaries into Geographic Information Systems (GIS) shape files in the 2000s for public awareness. The shape files were created from hard copy maps and descriptions found in the ordinances establishing the County's Goal 5 program, in consultation with the Oregon Department of Fish and Wildlife (ODFW). Maps provided in this document include inventoried habitat that spatially overlaps with the MUA- 10 and RR-10 zones impacted by the proposed text amendments (Attachment 2). The habitat areas include: deer migration corridor, deer winter range, elk habitat, flood plain, and wetlands. Staff utilized the County's WA Combining Zone layers to determine the general extent of habitat for big game species as the Combining Zone was designed to cover a larger area than the habitat itself (Ordinance 92-046). Inventoried streams and rivers are shown on the map, as well as wetlands and flood plains. Goal 5 Riparian areas (flood plain, wetlands and 100 feet measured from ordinary high water mark) associated with these water bodies is also the habitat area for fish, furbearers, waterfowl, and upland game birds (Ordinance 92-041, 94-007). As the proposed text amendments are legislative and do not impact any specific properties, staff did not review Goal 5 impacts on an individual parcel level basis. Instead staff identified the following potential resource sites in which the allowance of ADUs could potentially intersect with Goal 5 resources: Riverine Resources: Some properties in the MUA-10 and RR-10 zones are located in relative proximity to the Deschutes River, Little Deschutes River, Paulina Creek, and Whychus Creek and its associated Goal 5 Riparian Area.10 Ordinance 92-041 stated the following additional Goal 5 resources depend on riparian corridors for habitat: furbearer, waterfowl, and upland game bird habitat. As the extent of the habitat locations for these species are not detailed in a boundary description or on a map, staff assumes the species habitat is found entirely inside the Riparian Area boundary shown in Attachment 2. Wildlife Area Combining Zone: The WA Combining Zone was adopted as a protection measure for antelope, deer, and elk in Deschutes County. As an overlay zone, the mapped area conservatively identified typical habitat and migration areas and provided additional development requirements to ensure impacts to wildlife are properly mitigated alongside the underlying base zone regulations. The zone encompasses the previously inventoried area for Antelope Range, Deer Migration 10 There are 386 RR-10 tax lots, two acres or greater that abut the Little Deschutes River or Deschutes River and 505 tax lots that are split -zoned RR-10 or MUA-10 with the Flood Plain Zone. The Flood Plain Zone is not recognized as a rural residential exception area. RR-10 and MUM 0 split zoned properties will be required to contain the minimum lot or parcel area to qualify for an ADU. 247-22-000671-TA Page 17 of 43 Corridor, Geer Winter Range, ':ign,,11cant EI%: Hahliat. T'J-e proposed amendments add a conflicting use, ADUs which affect three ;habitat ranges in PJ!UA-10 and RR-10: Deer Migration Corridor, Deer Winter Range, an-11 significant Elk Habitat.. These habitat ranges are shown in Attachment 2. The maps include federal land. However, these properties are not subject to Deschutes County land use regulations. The Deschutes County Goal 5 inventory also includes scenic and open space sites such as Landscape Management Rivers and Streams, State Scenic Waterways and Federal Wild and Scenic Rivers, and Ecologically and Scientifically Significant Natural Areas - Little Deschutes River / Deschutes Confluence (Attachment 1). As these are resources associated with mitigating visual impacts and do not impact development potential, they are not impacted by the proposed amendments and therefore are not reviewed in this document. 247-22-000671-TA Page 18 of 43 Chapter 3: Conflicting Use Analy'sis 660-023-0040(2): identify conflicting uses. local governments shall identify conflicting uses that exist, or could occur, with regard to significant Goal 5 resource sites. To identify these uses, local governments shall examine land uses allowed outright or conditionally within the zones applied to the resource site and in its impact area. Local governments are not required to consider allowed uses that would be unlikely to occur in the impact area because existing permanent uses occupy the site. Deschutes County is proposing to add ADUs in the MUM 0 and RR-10 zones in the WA Combining Zone. ADUs could be a conflicting use to significant Goal 5 resources as they generate vehicle trips, buildable footprints, and noise. Other uses that are allowed in the two zones are shown below. Table 3: Allowed Uses Zoning Outright Uses Conditional Uses Public use Semipublic use Dude ranch Kennel and/or veterinary clinic Guest house Manufactured home as a secondary accessory farm dwelling Exploration for minerals Private parks Personal use airstrip Agricultural uses Golf course Single family dwelling or Type 2 or 3 Home occupation manufactured home Destination resorts Harvesting a forest product Planned developments Class I and II road or street projects Cluster developments subject to land division standards Landfills MUA-10 Class III road or street project Timeshare Noncommercial horse stables Hydroelectric facility Horse events Storage, crushing and processing of minerals Operation, maintenance and piping of Bed and breakfast inn canals Excavation, grading and fill Type I Home occupation Religious institutions Historic accessory dwelling units Private or public schools Utility facility Cemetery Commercial horse stables Horse events Manufactured home park or RV park Wireless telecommunication facilities Guest lodge Surface mining in conjunction with operation and maintenance of irrigation system 247-22-000671-TA Page 19 of 43 Zoning Outright Uses C Conditional Uses Public park Dude ranch Personal use airstrip Planned developments Single family dwelling or Cluster developments manufactured home Recreation -oriented facility Utility facility Landfills Community center Cemetery Agricultural use Timeshare Class I and II road or street projects Hydroelectric facility subject to land division standards Bed and breakfast inn RR-10 Class III road or street project Golf course Noncommercial horse stables Excavation, grading and fill Horse events Religious institutions Operation, maintenance and piping of Public use canals Semipublic use Type I Home occupation Commercial horse stables Historic accessory dwelling units Private or public schools Manufactured home park or RV park Wireless telecommunication facilities Surface mining in conjunction with operation and maintenance of irrigation system General Impacts of Conflicting Uses The proposed amendments would allow ADUs in inventoried Goal 5 resources. As part of the ESEE review "a local government may conduct a single analysis for two or more resource sites that are within the same area or that are similarly situated and subject to the same zoning." In reviewing the proposed amendments, Deschutes County finds that the impacts from ADUs in the MUA-10 and RR-10 zones as they relate to Deer Migration Corridor, Deer Winter Range, and Significant Elk Habitat are of such a similar nature that the impacts for these areas may be reviewed together via the general impacts described below. Noise and Light ADUs as a secondary dwelling may distress inventoried wildlife, as they seek to avoid noise and light. • Habitat Removal ADUs would likely require removal of upland vegetation, grading, and soil compaction that could alter drainage and runoff patterns. This could increase peak runoff, cause bank erosion, flooding, or increase the flow of sediment into water bodies. The removal of upland vegetation could also reduce tree canopy and understory vegetation which could be utilized by wildlife, outside of their primary habitat. " OAR 660-023-0040(4) 247-22-000671-TA Page 20 of 43 • Introduction of Invasive, Nonnative Plants ADUs may contribute to the spread of invasive, nonnative plants which could replace and degrade native vegetation of which many species depend. Habitat Fragmentation Additional human development may result in fences, roads, traffic and other barriers to the movement of terrestrial wildlife that is critical to their survival. Greater detail on these potential conflicts and their consequences are provided below. 247-22-000671-TA Page 21 of 43 Chapter 4: Impact Areas 660-023-0040(3): Determine the impact area. local governments shall determine an impact area for each significant resource site. The impact area shall be drawn to include only the area in which allowed uses could adversely affect the identified resource. The impact area defines the geographic limits within which to conduct an ESEE analysis for the identified significant resource site. This step is discretionary and allows for the local jurisdiction to define which areas are the most vulnerable and/or most likely to be affected by the proposed amendments. The impact area for this ESEE analysis are properties that are within the Deer Migration Corridor, Deer Winter Range, and Significant Elk Habitat in the MUA-10 and RR-10 zones. As this ESEE is not for any specific property, but instead reflects changes to the code generally, there is no individual property specific data. Properties in this impact area can be found in Attachment 2 - Impact Area Maps Impact Area Methodology To understand the impact of the proposed amendments, an estimate of the number of parcels is shown in Table 4 below. Table 4: Number of Affected Non -Federal Properties in Impact Area 12 Zone Deer Migration Deer Winter Elk Multiple Use Agricultural Zone 0 9 0 Rural Residential Zone 1,293 446 39 Total 1,293 455 39 12 See footnote #8. 247-22-000671-TA Page 22 of 43 Chapter 5: ESEE Analysis 660-023-0040(4): Analyze the ESEE consequences. local governments shall analyze the ESEE consequences that could result from decisions to allow, limit, or prohibit a conflicting use. The analysis may address each of the identified conflicting uses, or it may address a group of similar conflicting uses. A local government may conduct a single analysis for two or more resource sites that are within the same area or that are similarly situated and subject to the same zoning. The local government may establish a matrix of commonly occurring conflicting uses and apply the matrix to particular resource sites in order to facilitate the analysis. A local government may conduct a single analysis for a site containing more than one significant Goal 5 resource. The ESEE analysis must consider any applicable statewide goal or acknowledged plan requirements, including the requirements of Goal S. The analyses of the ESEE consequences shall be adopted either as part of the plan or as a land use regulation. Background Deschutes County is choosing to conduct a single analysis for all resource sites as the impacts from ADUs could have very similar impacts to both riparian areas and fish and wildlife that depend on the riparian for their habitat, and for big game including deer and elk. As described above, the potential impacts fall into four general areas: • Noise and Light ADUs as a secondary dwelling may distress inventoried wildlife, as they seek to avoid noise and light. • Habitat Removal ADUs would likely require removal of upland vegetation, grading, and soil compaction that could alter drainage and runoff patterns. This could increase peak runoff, cause bank erosion, flooding, or increase the flow of sediment into water bodies. The removal of upland vegetation could also reduce tree canopy and understory vegetation which could be utilized by wildlife, outside of their primary habitat. • Introduction of Invasive, Nonnative Plants ADUs may the spread of invasive, nonnative plants which could replace and degrade native vegetation of which many species depend. Habitat Fragmentation Additional human development may result in fences, roads, traffic and other barriers to the movement of terrestrial wildlife that is critical to their survival. 247-22-000671-TA Page 23 of 43 This step is discretionary. The purpose of i<SFF ran Iysi is to prov!de a qualitative exercise for local governments to weigh the posluve and negative consequences of three scenarios in order to determine a preferred outcome. Governments may choose to use quantitative data as necessary, but are not required to gather new information or hire wildlife biologists, economists, sociologists, or energy consultants. ESEE Scenario Descriptions Scenario (A) - Allow the Conflicting Use In this scenario, the local government may decide that a conflicting use should be allowed fully, without any restrictions, no matter the potential impacts on the inventory site(s). In this instance, the Goal 5 rule would require the government to determine the conflicting use is of such importance compared to the site that the use should be allowed without any protections or limitations. In choosing this scenario, the local government could still use other tools to protect the inventories that are currently in place. Scenario (8) - Prohibit the Conflicting Use In this scenario, the local government may decide that the inventory site is of such importance or the conflicting use has the potential to be so detrimental to the inventory site(s), that the conflicting use should be entirely prohibited. Scenario (C) - Limit the Conflicting Use In this scenario, the local government may decide that the inventory site and the conflicting use are both important when compared to each other, and the use should be allowed with limitations to balance the impacts to the inventory site(s). Accessory Dwelling Unit ESEE Analysis Scenario (A) Allow the Conflicting Use In this scenario, Deschutes County would allow ADUs in MUA-10 and RR-10 zones without any additional requirements to protect the inventoried resources. Economic Consequences: Permitting ADUs would have positive consequences by allowing a second dwelling on a property. Deschutes County is experiencing a housing shortage. Allowing ADUs, which are limited to 900- square-feet of useable floor area and cannot be used as vacation rentals, could help address work force housing shortages in the region. It could reduce commuting costs for those workers that live in adjoining Crook, Jefferson and Klamath counties, and coupled with other work force housing strategies, attract businesses and employment opportunities in Central Oregon. Allowing ADUs could also have negative consequences. The development of ADUs in MUM 0 and RR-10 zones could significantly increase land value, which could price out low and middle -income residents from the opportunity to own a home. Previous testimony from ODFW estimates that hunting and wildlife viewing contributed more than $50 million to the Deschutes County economy annually. Deschutes County is proposing to allow ADUs in some areas that contain riparian areas 247-22-000671-TA Page 24 of 43 and species that rely on the riparian area for habitat including fish, furbearers, upland game birds, and waterfowl. Allowing for ADUs near these areas could reduce income associated with wildlife viewing and hunting of these species. In some parts of the county, mule deer populations have declined up to 70% since 2000 as a result of human caused habitat reduction, fragmentation, and disturbance on winter range. By allowing ADUs in Deer Migration Corridor, Deer Winter Range, and Significant Elk Habitat, there is the potential for greater disturbance of deer and elk populations that could reduce hunting and viewing opportunities. Social Consequences: Permitting ADUs could have positive consequences by allowing property owners with an existing single family dwelling to build an ADU that accommodates aging parents or family members, farm help for those that are working on MUA-10 zoned agricultural properties or nearby Exclusive Farm Use zoned properties. By providing affordable housing, it could help lift people out of poverty and increase economic mobility. It could bring a positive impact on the surrounding community, encouraging social connections and lowering crime rates. It could also have negative consequences by allowing ADUs in rural areas with inadequate access to employment, schools, food markets, medical facilities and parks. This could lead to higher automobile -dependence and vehicle emissions caused by more people driving to and from rural areas. Based on previous testimony from ODFW, there could also be negative impacts due to the potential loss of wildlife habitat. Many residents, advocacy organizations, and wildlife agencies continue to express concerns regarding the loss of fish and wildlife habitat due to the region's rapid growth and development. There is a recognition that increases in human activity, especially in rural areas, displace habitat and diminish, incrementally, Deschutes County's rural character and quality of life. The proposed amendments could have negative consequences due to increased human presence and infrastructure near the inventoried Goal 5 resources, which could lead to a reduced level of access and enjoyment for recreationa lists. Environmental Consequences: in this scenario, ADUs would be permitted outright. As stated previously, ADUs could present negative impacts as they have the potential to increase noise and light near fish and wildlife habitats, and in turn cause distress to inventoried Goal 5 species. Developing an ADU would likely require removal of upland vegetation, grading, and soil compaction that could alter drainage and runoff patterns. This could increase peak runoff, cause bank erosion, flooding, or increase the flow of sediment into water bodies. The removal of upland vegetation could also reduce tree canopy and understory vegetation which could be utilized by wildlife, outside of their primary habitat. Permitting ADUs could create negative impacts to designated habitat for Deer Migration Corridor, Deer Winter Range, and Significant Elk Habitat. Based on previous testimony from ODFW, mule deer populations have declined up to 70% since 2000. Their testimony identified other elements contributing to reductions in mule deer populations tied to human caused habitat reduction, fragmentation, and disturbance on winter range. 247-22-000671 JA Page 25 of 43 As previously stated, the following Goal 5 protections established during the creation of the initial inventory would remain in place: 1. Setback Protections: 100-foot structural setback from the ordinary high water mark of rivers or streams. 2. Scenic Protections: Development near rivers in the Landscape Management Combining Zone must be reviewed for aesthetic compatibility. 3. Wetland Protections: Prohibition of fill or removal of any material or wetland vegetation, regardless of the amount, within the bed and banks of any stream or river or in any wetland unless approved as a conditional use. 4. Mitigation Protections: Impacts to any wetland or riverbank impacts to be fully mitigated, as evaluated by ODFW. 5. Flood Plain Protections: All new construction, expansion or substantial improvement of an existing dwelling, an agricultural related structure, a commercial, industrial or other non- residential structure, or an accessory building in a designated Flood Plain shall obtain a conditional use permit. 6. Combining Zone Requirements: Deer Migration Corridor, Deer Winter Range, Significant Elk Habitat and Sensitive Bird and Mammal Habitat have site specific requirements including development setbacks and seasonal construction requirements to prevent impact to sensitive species and habitat. Existing protections would prevent riparian areas from being developed with ADUs established near them. As the existing Goal 5 measures in place today protect riparian areas and the fish and wildlife within that habitat area, the addition of ADUs near these areas will be neutral. Energy Consequences: ADUs are unlikely to cause any major energy consequences. Per SB 391 and SB 644, the ADU must be within 100 feet of the existing dwelling. It must utilize the existing onsite system if there is no pre-existing centralized wastewater treatment system. It can also rely on an existing domestic well. A potential negative consequence of the proposed amendments could be additional development in rural Deschutes County. Depending on the location of the ADU, it could lead to additional Vehicle Miles Traveled and greater congestion on county owned roads for employment, education, and basic services. 247-22-000671 JA Page 26 of 43 Scenario W Prohibit the Con 6ieti ngQse In this scenario, Deschutes County would not aIlow ,ADUs in the MUA-10 and RR-10 zones associated with the WA Combining Zone and Deer Migration Corridor, Deer Winter Range, and Significant Elk Habitat. Economic Consequences: Prohibiting ADUs could have negative economic consequences, as it prevents certain property owners from using their land and building a secondary dwelling unit. This could contribute to work force housing deficiencies in the region and compel residents to commute from adjoining areas in Crook, Jefferson, and Klamath counties. It could also have neutral consequences based on previous testimony from ODFW. Prohibiting ADUs could contribute to stabilizing mule deer populations, thereby maintaining economic benefits from wildlife viewing or hunting. Wildlife viewing, hunting, and fishing experiences in Deschutes County is a major economic asset to the region. Continuing with the current regulations could minimize further habitat fragmentation and help maintain wildlife viewing, hunting, and fishing revenues in Deschutes County. Social Consequences: Prohibiting ADUs could have negative consequences. Many residents and multi -generational families in Deschutes County need affordable housing and are rent -burdened. Limiting the potential supply of ADUs could exacerbate Central Oregon's housing crisis by forcing some residents to pay higher rents, commute longer distances for basic services, or relocate. Those circumstances could lead to further mental and physical stress. It could also have positive consequences. Many residents express their appreciation for undisturbed landscapes because they contribute to Deschutes County's rural character and quality of life. Prohibiting ADUs, which generate noise and light would continue to limit disturbance to existing fish and wildlife habitats. Environmental Consequences: There are 386 RR-10 tax lots, two acres or greater that abut the Little Deschutes River or Deschutes River and 505 tax lots that are split -zoned RR-10 or MUA-10 with Flood Plain. These properties contain a Goal 5 Riparian Area which is also the habitat for Goal 5 inventoried waterfowl, upland game bird, furbearers, and fish. The WA Combining Zone contains Deer Migration Corridor, Deer Winter Range, and Significant Elk Habitat. By prohibiting ADUs and maintaining the status quo, these species will continue to be protected against habitat fragmentation and distress from second dwellings. The environmental consequences are therefore neutral. Energy Consequences: Energy consumption would have neutral consequences as this scenario maintains the status quo. Development associated with ADUs may be displaced to other areas of rural Deschutes County, which could still have demands on utilities. 247-22-000671-TA Page 27 of 43 Scenario (0 Limit the Conflict.,fp else in this scenario, Deschutes Cai11ty would allow ADUs in the IVWA-10 and RR-10 zones, with additional limitations to protect the inventc)ried resources, outside of existing protections. For example, a limitation requiring the entire ADU to be within a 100 feet of the existing dwelling. Economic Consequences: Permitting ADUs would have positive consequences by allowing a second dwelling on a property. Deschutes County is experiencing a housing shortage. Allowing ADUs, which are limited to 900- square-feet of livable floor area and cannot be used as vacation rentals, could help address work force housing shortages in the region. It could reduce commuting costs for those workers that live in adjoining Crook, Jefferson and Klamath counties and coupled with other work force housing strategies, attract businesses and employment opportunities in Central Oregon. Compared to scenario (a) in which only a portion of the ADU must be within a 100 feet of the existing dwelling, the addition of limitations could lessen the impact by minimizing the buildable footprint and ultimately, the number of eligible properties, recognizing that some may not have enough area to accommodate an ADU. This could positively impact the hunting and wildlife viewing economy in Central Oregon, valued at $50 million annually. While such measures could lessen impacts, the overall burden caused by allowing ADUs nevertheless may still overall impact wildlife and thereby impact revenue generated from the recreation economy. In comparison to scenario (a), which would allow the use outright, Deschutes County finds that this scenario would provide a limitation to reduce the amount of impacts, even if those impacts still exist. Social Consequences: The positive social consequences in this scenario are very similar to scenario (a). Permitting ADUs could have positive consequences by allowing property owners with an existing single family dwelling to build an ADU that accommodates aging parents or family members, farm help for those that are working on MUA-10 zoned agricultural properties or nearby Exclusive Farm Use zoned properties. By providing affordable housing, it could help lift people out of poverty and increase economic mobility. It could bring a positive impact on the surrounding community, encouraging social connections and lowering crime rates. Adding a limitation requiring the entire ADU to be within a 100 feet of the existing dwelling (or others), could establish a negative consequence of ADUs in rural areas with inadequate access to employment, schools, food markets, medical facilities and parks. This could lead to higher automobile -dependence and vehicle emissions caused by more people driving to and from rural areas. Based on previous testimony from ODFW, there could also be negative impacts due to the potential loss of wildlife habitat stemming from the possible removal of habitat areas and construction of structures and their associated human presence. Many residents, advocacy organizations, and wildlife agencies continue to express concerns regarding the loss of fish and wildlife habitat due to the region's rapid growth and development. There is a recognition that increases in human activity, especially in rural areas, displace habitat and diminish, incrementally, Deschutes County's rural character and quality of life. The proposed amendments could have 247-22-000671-TA Page 28 of 43 a in_ r�e�jsed hug gun presence acid. i �frastructi�re near o+ within the negative consequences due t; inventoried Goal 5 resources; Whilr'h Could lead w a reduced level of access and enjoyment for recreationalists. Environmental Consequences: ADUs could present negative consequences as they have the potential to increase activity, noise, and light near fish and wildlife habitats, and in turn cause distress to inventoried Deer Migration Corridor, Deer Winter Range, and Significant Elk Habitat. Development of an ADU would likely require removal of upland vegetation, grading, and soil compaction that could alter drainage and runoff patterns. This could increase peak runoff, cause bank erosion, flooding, or increase the flow of sediment into water bodies. The removal of upland vegetation could also reduce tree canopy and understory vegetation which could be utilized by fish and wildlife species, outside of their primary habitat. Permitting ADUs could result in further negative impacts to the Deer Migration Corridor, Deer Winter Range, and Significant Elk Habitat. Based on recent testimony from ODFW, mule deer populations have declined up to 70% since 2000. Their testimony identified other elements contributing to reductions in mule deer populations tied to human caused habitat reduction, fragmentation, and disturbance on winter range. Existing protections in place today (discussed above) would prevent Goal 5 riparian areas from being developed when ADUs are nearby. The establishment of ADUs in these areas would likely be neutral. By limiting the entire ADU within a 100 feet of the existing dwelling, the negative environmental consequences associated with ADU could be mitigated to a certain extent. Energy Consequences: The energy consequences in this scenario are the same as in scenario (a). Limiting the entire ADU to within a 100 feet of the existing dwelling could decrease the amount of energy used to operate the ADU. 247-22-000671-TA Page 29 of 43 Chapter 6: ESEE Decis"oon 660-023-0040(5): Develop a program to achieve Goal s. Local governmerts shall determine whether to allow, limit, or prohibit identified conflicting uses for significant resource sites. This decision shall be based upon and supported by the ESEE analysis. A decision to prohibit or limit conflicting uses protects a resource site. A decision to allow some or all conflicting uses for a particular site may also be consistent with Goal 5, provided it is supported by the ESEE analysis. One of the following determinations shall be reached with regard to conflicting uses for a significant resource site: (c) A local government may decide that the conflicting use should be allowed fully, notwithstanding the possible impacts on the resource site. The ESEE analysis must demonstrate that the conflicting use is of sufficient importance relative to the resource site, and must indicate why measures to protect the resource to some extent should not be provided, as per subsection (b) of this section. The graphic below is meant to be a simplified representation to balance each of the ESEE factors. As stated in the ESEE analysis, there are a variety of positive, negative, and neutral consequences associated with each scenario. Deschutes County finds that the issue of allowing an ADU in MUM 0 and RR-10 zones are both a social and economic issue that outweighs the other ESEE consequences. The County considered allowing the use with limitations by limiting the entire ADU within a 100 feet of the existing dwelling, but this practice could limit the number of affordable housing opportunities. Therefore the County is choosing scenario (a) which will allow the use fully notwithstanding the possible impacts on the resource sites. Table 5: ESEE Factors Support habitat Support Support Preserves Rural functions Affordable Recreational Character Transportation ESEE Factors (Environmental, Housing Economy (Social, (Energy) economic, (Social, (Economic. economic) _ social) economic) Social) Prohibit conflict 0 _ 0 0 0 (No code change) Allow conflict Allow ADUs with _ + no additional requirements Limit conflict Allow ADUs with _ + additional limitation 247-22-000671-TA Page 30 of 43 Chapter 7: Program to Achieve Goal 5 660-023-0050(1): For each resource site, local governments shall adopt comprehensive plan provisions and land use regulations to implement the decisions made pursuant to OAR 660-023- 0040(5). The plan shall describe the degree of protection intended for each significant resource site. The plan and implementing ordinances shall clearly identify those conflicting uses that are allowed and the specific standards or limitations that apply to the allowed uses. A program to achieve Goal 5 may include zoning measures that partially or fully allow conflicting uses (see OAR 660-023-0040(5)(b) and (c)). 660-023-0050(2): When a local government has decided to protect a resource site under OAR 660- 023-0040(5)(b), implementing measures applied to conflicting uses on the resource site and within its impact area shall contain clear and objective standards. For purposes of this division, a standard shall be considered clear and objective if it meets any one of the following criteria: (a) It is a fixed numerical standard, such as a height limitation of 35 feet or a setback of 50 feet; (b) It is a non discretionary requirement, such as a requirement that grading not occur beneath the dripline of a protected tree, or... Deschutes County has determined that allowing ADUs within the MUA-10 and RR-10 zones and within the Deer Migration Corridor, Deer Winter Range, and Significant Elk Habitat should be allowed fully, notwithstanding the possible impacts on the inventoried resources. The implementing measures do not include alternative, discretionary procedures for compliance. 247-22-000671-TA Page 31 of 43 Attachment 1 -Deschutes County Significant Goal 5 Resources Inventoried Flood Plain Conflicts Comments Relevant Resource Relationship Ordinances Floodplain zone recognized as Major conflicts are program to achieve the goal to removal of riparian conserve fish habitat (Ordinance vegetation, fill and Nos. 88-030, 88-031, 89-009). Ordinance Nos. Fish Habitat removal activities 86-018, 86-053, (Inventory — Ord. within the bed and Others include: fill and removal 86-054, 86-056, No. 92-041, page Yes banks of streams or permits, wetland removal 88-030, 88-031, 18; creeks, rivers wetlands, regulations, hydro prohibitions, 89-009, 92-040, and lakes) hydroelectric, rural rimrock setbacks, 100' setback 92-041 residential from OHW, conservation development and easements and restrictions on water regulation boats and docks. Floodplain zone recognized as a program to achieve the goal to protect deer winter range Major conflicts are (Ordinance Nos. 88-030, 88-031, Deer Winter Range dwellings, roads, and 89-009). (Inventory — Ord. dogs. Activities which Ordinance Nos. No. 92-041, page cause deterioration of Others include Wildlife Area 88-0 88-040, 22; Metolius, Yes forage quality and Combining Zone. Requires 40-acre , 92-0, 89-0 09, Tumalo, North quantity or cover are minimum lot size for all new 92-041, 92-042, Paulina, and Grizzly conflicting uses. residential land divisions. 92-046 ranges identified by Fences which impede Underlying zoning in most of the ODFW safe passage are also deer winter range is: EFU, Forest, a conflicting use. and Floodplain. These zones provide for large lot sizes and limit uses that are not compatible with farm or forest zones. Wildlife Area Combining Zone was recognized as the only program to achieve the goal to protect the deer migration corridor. Underlying zoning is RR-10. It was amended to require cluster development for all Deer Migration Major conflicts are land divisions in the RR-10 zone in Corridor dwellings, roads, and the Bend/La Pine migration (Inventory —Ord. dogs. Fences which corridor ( 92-042) . A 20-acre parcel Ordinance Nos. No. 92-041, page Yes impede safe passage is the minimum size required for a 92-040, 92-041, 26; Bend -La Pine are also a conflicting cluster develo ment. Siting and p g 92-042, 92-046 migration corridor fencing standards also apply in the identified by ODFW) use. deer migration corridor. Migration corridor includes some EFU, Forest, and Floodplain zoned land. These resource zones provide for large lot sizes and limit uses that are not compatible with farm or forest zones. 247-22-000671-TA Page 32 of 43 Inventoried Flood Plain Conflicts Comments Relevant Resource Relationship Ordinances Wildlife Area Combining Zone was recognized as the only program to achieve the goal to protect the elk habitat.' Major conflict is the 1t was amended to require a 160- loss of habitat due to acre minimum lot size for areas increased residential identified as significant elk habitat. densities in the Siting standards are required to habitat areas. minimize conflicts of residences Elk Habitat increased human with habitat protection, Ordinance Nos. (Inventory - Ord. disturbance can cause 88-030, 88-031, No. 92-041- page, Yes conflict with elk. The Underlying zoning in the elk habitat 89-009, 92-040, 32; identified by use of land which areas is either Floodplain, Forest, or 92-041, 92-042, USFS and ODFW) ; necessitates the Open Space and Conservation. 92-046 removal of large These resource zones restrict high amounts of vegetative density residential development cover can also alter and prohibit industrial and the quality of elk commercial uses. habitat. * Some lands are zoned RR10, including lots that are split zoned with flood plain. They are already parcelized, preventing future land divisions. Land use or To achieve the goal to conserve development antelope habitat, uses conflicting Antelope Habitat activities which would with antelope habitat are limited to (Inventory — Ord. result in the loss of the Wildlife Area Combining Zone. Ordinance Nos. No. 92-041— page No habitat, and animal In antelope range, the minimum lot 92-040, 92-041, 38; identified by harassment and size is 320 acres. Except for rural 92-042, 92-046 ODFW) disturbance service centers, the antelope associated with habitat is zoned EFU or F1. human activity. Nest sites are found in Forest, EFU and Open Space and Habitat for Conservation zones. Sensitive Birds Uses that could (Inventory -Ord. conflict with the No. 92-041- page habitat site are 41 and Table S; surface mining, identified by ODFW, residential use, The Sensitive Bird and Mammal Ordinance Nos. ODF, OSU, Oregon No recreation facilities, Combining Zone achieves the goal 92-040, 92-041, Natural Heritage roads, logging, and air to protect sensitive bird sites. 92-042, 92-046 Data Bases). strips. The area required Any activity which for each nest site would disturb the varies between nesting birds, species. including intensive recreational use or removal of trees or 247-22-000671-TA Page 33 of 43 Inventoried Flood Plain Conflicts Comments Relevant Resource Relationship Ordinances vegetation could conflict with the habitat site. Habitat areas for sensitive birds of the Fish and Wildlife Element, adopted in No. 92-041 is repealed and replaced by inventories in Exhibit 1. Area required around each nest site needed to protect (UPDATE- the nest from conflict varies Inventory - Ord. No. between species. It's called 94-004 —pages 3 to „ >, ..sensitive habitat area. Ordinance Nos. 140 Site specific No See above. 94-004, 94-005 ESEE analysis and Note: Northern bald eagle, osprey, and 94-021 decisions follow golden eagle, prairie falcon, and each site. great blue heron rookeries are located on federal land. Classified as "2A"Goal 5 Resources. Great Grey owl site no longer exists. Some bald eagle, golden eagle sites are controlled by the Sensitive Bird and Mammal Combining Zone. Floodplain zone recognized as program to achieve the goal to Waterfowl Habitat Future resort and conserve waterfowl habitat (Inventory — Ord. vacation home (Ordinance Nos. 88-030, 88-031, 92page development, human 89-009). 56; includes all 6; activity associated rivers, streams, lakes and perennial with recreation along Others include: fill and removal Ordinance Nos. wetlands and ponds rivers and lakes, permits, wetland removal 86-0, 86-0, identified on the timber -cutting around regulations, rimrock setbacks, 100' 86-056, 88-030 , 1990 US Fish and Yes sensitive habitats, fill setback from OHW, conservation 88_031, 89-009, Wildlife Wetland and removal of easements, restrictions on boats 92-040, 92-041, Inventory Maps; material in wetlands and docks, landscape management, 92-04 92 045, ODFW provided lists and within the bed state and federal scenic water 92 046 and banks of rivers regulations. In addition, the Forest of all bird species; and streams, and and EFU zones require large City Bend removal of riparian minimum lot size which limits the River Study Rivy vegetation are potential density of development in provides additional conflicting uses. the areas adjacent to many of the information) rivers, streams, wetlands, and ponds used for waterfowl habitat. 247-22-000671-TA Page 34 of 43 Inventoried Resource Flood Plain Relationship Conflicts Comments Relevant Ordinances Pheasant and quail are affected whenever agricultural For all of the upland game birds land is taken out of except sage grouse, the habitat is production through adequately protected by the Upland Game Bird urban sprawl, road existing EFU and Forest zoning and Habitat construction, the provisions to protect wetlands (Inventory -Ord. industrial and riparian areas to achieve the Na`92-041-page development and. goal of protecting upland game 60; ODFW did not other land clearing birds. identify critical activities. Ordinance Nos. habitat for any of County provisions to protect 86-018, 86- the upland game Farming practices on riparian areas and wetlands protect 053,86-054, 86- species except for Yes existing agricultural one of the most significant 056, 88-030, 88- the sage grouse; lands also have an components of upland game 031, 89-009, 92- habitat for upland impact. Fence row, habitat. 04, 92-041, 92- game birds is woodlots, and riparian 042, 92-046 dispersed vegetation are Note: conflicts with sage grouse are throughout the constantly being limited by EFU zoning with a 320 county in riparian, removed at the acre minimum parcel size. forest, agricultural, expense of upland Sensitive Bird and Mammal and rangeland bird use, Combining Zone pertaining to sage areas) grouse and leks have been Chapter repealed due to LCDC enacted rules County/City y of Bend In OAR 660, Division 23. River Study identifies conflicting uses with upland bird habitat. Habitat areas for Upland Game Bird Habitat, adopted in No. 92-041 is repealed and replaced and further amended in Exhibit 4 with the ESEE Analysis and inventory for upland game bird habitat. Conflicts with sage grouse are reduced by the limitations on uses UPDATE - Inventory in the EFU and Floodplain zone, by Ordinance Nos. — Ord. No. 94-004 — Yes See above. the 320 acre minimum lot size and 94-004 and 94- pages 156-201. predominance of BLM lands. 021 Note: conflicts with sage grouse are limited by EFU zoning with a 320 acre minimum parcel size. Sensitive Bird and Mammal Combining Zone pertaining to sage grouse and leks have been repealed due to LCDC enacted rules in OAR 660, Division 23. 247-22-000671 JA Page 35 of 43 Inventoried Flood Plain Conflicts Comments Relevant Resource Relationship Ordinances Furbearer habitat is adequately protected by the existing EFU and The conflicting uses Forest zoning and the provisions to are those activities or protect farm use and forest zoning, Furbearer Habitat development which and the provisions to protect (Inventory — Ord. would degrade or wetlands and riparian areas to No. 9page destroy habitat, or achieve the goal to protect Ordinance Nos. 65; ODFW FW has not disturb the animals furbearers. 86-018, 86- identified any Yes causing them to 053,86-054, 86- specific habitat sites relocate. The farm and forest zones require 056, 88-030, 88- other than riparian large minimum lot sizes and many 031, 89-009, 92- and wetland areas Conflicts between uses are permitted only as 040, 92-041 that are critical for furbearers and other conditional uses. The measures to the listed species. land uses are minimal protect riparian and wetland in the county. habitat are detailed in this plan in the Riparian and Wetland Habitat section. Caves located in EFU Habitat Areas for zones. Uses permitted Townsend's Big- in those zones that Eared Bats could conflict with the (Inventory — Ord. habitat site are Program to achieve the goal is No. 92-041-page No surface mining, Sensitive Bird and Mammal Ordinance No. 69; identified by recreation facilities Combining Zone 92-041 and 042 ODFW, ODF, OSU, including golf courses Oregon Natural and destination Heritage Data resorts, roads, Bases) logging, and air strips. UPDATE - Inventory Habitat areas for Townsend Bats, —Ord. No. 94-004- adopted in No. 92-041 is repealed pages 140 to 155 and replaced and further amended Ordinance Nos. Site specific ESEE No See above, in Exhibit 2. The ESEE for 94-004 and 94- analysis and Townsend's big -eared bats is 021 decisions follow amended for additional bat sites in each site. Exhibit 3. 247-22-000671 JA Page 36 of 43 Inventoried Resource Flood Plain Relationship Conflicts Comments Relevant Ordinances Conflicting uses include fill and removal of material, including vegetation which could cause a reduction in the size or quality or function of a wetland, or cause destruction or degradation of the riparian habitat and vegetation. Floodplain zone recognized as program to achieve the goal to Structural conserve wetland and riparian Wetlands and development in habitat (Ordinance Nos. 88-030, 88- Ordinance Nos. Riparian Areas wetlands or riparian 031, 89-009). 86-018, 86-054, (Inventory — Ord. areas would reduce 86-0, 88-0, No. 92-041—page Yes the habitat and the Others include: fill and removal 88-031, 89-009 , 73; identified on use of the structure permits, wetland removal 92-040, 92-041 USFWS NWI) could cause conflicts regulations, hydro prohibitions, 92-045 such as harassment or 100' setback from OHW, disturbance or wildlife conservation easements, dependent on the restrictions on boats and docks, habitat. Cutting of and landscape management. riparian vegetation can remove important shade for streams, eliminate habitat for various waterfowl, furbearers, and nongame bird species, and can increase the potential for erosion or bank instability in riparian areas. 247-22-000671-TA Page 37 of 43 Inventoried Resource Flood Plain Relationship Conflicts Comments Relevant Ordinances Conflicting uses: Locating septic systems in riparian Riparian Areas inventory and ESEE UPDATE —Riparian area could causepollution analysis adopted by Ordinance No. inventory — Ord. of ground 92-041 is deleted and replaced by No. 94-007; and surface water an inventory and ESEE contained in Significant riparian systems. The potential Exhibit A. for this conflict habitat is located in depends on the three areas: characteristics of the New parcels meeting the minimum lot size in the resource zones (EFU, Area within 100' of soil. Forest, non -exception flood plain) OHW of an Locating structural will not cause an increase in inventoried stream development in residential density that would or river; conflict with riparian habitat riparian areas can values. reduce the habitat Area adjacent to an and the use of inventoried river or structures could cause In RR10, MUA-10, and Floodplain stream and located conflicts such as zones found adjacent to within a flood plain harassment or inventoried riparian areas, the Ordinance Nos. mapped by FEMA Yes disturbance of wildlife creation of new 10 acre parcels 94-007 and zoned dependent on habitat. would not significantly increase the Floodplain by the overall density of residential use county (Deschutes Recreational use of adjacent to riparian areas because River, Little the areas where new parcels could Deschutes River, the riparian area be created, with the exception of Paulina Creek, Fall including boat landing Tumalo Creek, are already divided River, Indian Ford areas, formal and into lots considerably smaller than informal trails, and Creek, Tumalo 10 acres. Creek, Squaw camping areas can (Whychus) Creek, alter soil composition Program to achieve Goal 5 for and Crooked River and cause destruction Riparian Habitat: fill and removal of vegetation. regulations to protect wetlands, Area adjacent to a Increase in density 100' setback from OHW, Floodplain river or stream and or residential lots r zone (regulates docks too), inventoried as a r adjacent to riparian Landscape Management zone, wetland on the NWI areas could result in a Conservation easements, State decrease of habitat Scenic Waterway effectiveness because of disturbance to wildlife. 247-22-000671 JA Page 38 of 43 Inventoried Resource Flood Plain Relationship Conflicts Comments Relevant Ordinances Conflicting uses include fill and removal of material, including vegetation, which could cause reduction in the size, quality or function of a wetland. Locating structural development in wetlands could reduce the habitat and the use of the structure could cause Wetlands Inventory and ESEE conflicts such as analysis adopted by Ordinance No. harassment or 92-041 is deleted and replaced by disturbance of wildlife an inventory and ESEE contained in dependent on the Exhibit B, Wetlands. habitat. UPDATE — Wetland Program to achieve Goal 5 for Inventory— Ord. Inv Draining wetlands for Wetland Habitat: Ordinance Nos. 94-007, Exhibit Yes agriculture of other 94-007 B — inventory is NWI development . Fill and removal (Ord. No. 92-045) purposes destroys the regulations to protect hydrological function wetlands of the wetland and • 100' setback from OHW alters the habitat • Flood plain zone (regulates qualities that certain docks too) wildlife depend on. • DSL Removal / Fill law Cutting wetland vegetation adjacent to streams can remove important shade for streams, eliminate habitat for various waterfowl, furbearers, and nongame bird species, and can also increase the potential for erosion or bank instability in riparian areas. 247-22-000671 JA Page 39 of 43 Inventoried Flood Plain Conflicts Comments Relevant Resource Relationship Ordinances Ecologically and Scientifically Significant Natural Areas * Little Deschutes River / Deschutes River Confluence' (Inventory - Ord. No. 92-052, Exhibit Resort and vacation B, Page 1; home development, identified by recreational Oregon Natural Yes uses,livestock grazing, Heritage Program); and fill and removal in Analysis of Pringle wetlands are Falls and Horse conflicting uses. Ridge Research Areas, West Hampton Butte and Davis Lakes excluded b/c they're on federal land and/or not related to flood plains. Programs for resource protection include the zoning of the property, the provisions of the flood plain, wetlands and the river corridor. The implementing measures which protect and regulate development in the confluence area are: EFU Ordinance Nos. zoning, Floodplain zoning, 86-018, 86-054, conservation easements, and fill 86-056, 88-030, and removal permits. 88-031, 89-009, 92-040, 92-041, The confluence area is located in 92-045 the undeveloped open space area of the Sunriver development (Crosswater). 80% of the property is retained as open space. Today, zoning is Floodplain and Forest Use. Landscape Management Uses conflicting with Rivers and Streams open space and scenic (Inventory — Ord. resources along the No. 92-052, Exhibit designated Landscape C, Page 3; Management rivers identified by state and streams include and federal wild land management Program for resource protection and scenic activities that result in includes: Floodplain zone and Ordinance Nos. corridors; and habitat loss or restrictions, fill and removal 86-018, 86-053, within 660' of OHW development within permits, wetland removal 86-0 86-0, of portions of Yes river or stream regulations, hydro prohibitions, 30, 88-0, 88-031, Deschutes River, corridors which would rimrock setbacks, conservation 89-009, 92 033, Little Deschutes excessively interfere easements, restrictions on boats 93 034 River, Paulina with the scenic or and docks, and landscape Creek, Fall River, natural appearance of management. Spring river, Tumalo the landscape as seen Creek, Squaw from the river or (Whychus) Creek, stream or alteration and Crooked River of existing natural not on the state or landscape by removal federal scenic of vegetative cover. designations) 247-22-000671-TA Page 40 of 43 Inventoried Flood Plain Conflicts Comments Relevant Resource Relationship Ordinances Conflicting uses with the open space and scenic values of the land adjacent to the inventoried lakes Lakes and include development Reservoirs which would cause a Conflicting uses around Tumalo (Inventory , Ord. loss of open space or Reservoir are specifically limited by No. a decrease in the Title 18.48, Open Space Ordinance No. C, Page 10; includes Page 10;,inclExhude No aesthetic and scenic Conservation Zone and a 100' 91-020 Upper Tumalo resources, and land setback for any structure from Reservoir; management OHW. remaining are on activities resulting in federal land the removal of natural vegetation which provides wildlife habitat and scenic value. Program for resource protection State Scenic includes: es: Waterways and See County / City of lain zone and restrictions, fill Floodpand Ordinance Nos. Federal Wild and Bend River Study and removal permits, wetland 86-018, 86-053, Scenic Rivers Yes 1986 River Study Staff ations, removal regulhydro bons,imrock 86-054, 86-056, (Inventory — Ord. Report. Both prohibitions, r setbacks, 88-030, 88-031, No. 92-052, Exhibit referenced in Ord. 92- conservation easements, 89-009, 92-033, E, Page 1; 005, Exhibit E. restrictions on boats and docks, 93 034 and landscape management. Wilderness Areas, Areas of Special Concern, Energy Sources (Ord. No 92-052), and Groundwater No N/A N/A N/A Resources (Ord. No. 94-003) not analyzed because they're on federal land or don't relate to flood plains. 247-22-000671-TA Page 41 of 43 Attachment 2 - Inventory Site Maps 247-22-000671-TA Page 42 of 43 Exception Area Taxlots Meeting ADU Criteria e Elk Range Attachment 3 - Proposed Text Amendments 247-22-000671-TA Page 43 of 43 CHAPTER 18.32 MULTIPLE USE AGRICULTURAL ZONE; MUA 18.32.020 Uses Permitted Outright 18.32.020 Uses Permitted Outright The following uses and their accessory uses are permitted outright: A. Agricultural uses as defined in DCC Title 18. B. A single family dwelling, or a manufactured home subject to DCC 18.116.070. C. Propagation or harvesting of a forest product. D. Class I and II road or street project subject to approval as part of a land partition, subdivision or subject to the standards and criteria established by DCC 18.116.230. E. Class III road or street project. F. Noncommercial horse stables, excluding horse events. G. Horse events, including associated structures, involving: 1. Fewer than 10 riders; 2. Ten to 25 riders, no more than two times per month on nonconsecutive days; or 3. More than 25 riders, no more than two times per year on nonconsecutive days. Incidental musical programs are not included in this definition. Overnight stays by participants, trainers or spectators in RVs on the premises is not an incident of such horse events. H. Operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District except as provided in DCC 18.120.050. I. Type 1 Home Occupation, subject to DCC 18.116.280. J. Historic Accessory Dwelling Units, subject to DCC 18.116.350. K. Residential Accessory Dwelling Units, subject to DCC 18.116.355. HISTORY Adopted by Ord. PL-15 on 111111979 Amended by Ord. 91-002 §6 on 21611991 Amended by Ord. 91-005 §18 on 31411991 Amended by Ord. 91-020 §1 on 512911991 Amended by Ord. 91-038 §1 on 913011991 Amended by Ord. 93-001 §1 on 112711993 Amended by Ord. 93-043 §4 on 812511993 Amended by Ord. 94-008 §10 on 61811994 Amended by Ord. 2001-016 §2 on 312812001 Amended by Ord. 2001-039 §2 on 1211212001 Amended by Ord. 2004-002 §3 on 412812004 Amended by Ord. 2019-009 §1 on 91312019 Recorded by Ord. 2019-009 §1 on 91312019 Amended by Ord. 2023-00x §x on Edate] CHAPTER 18.60 RURAL RESIDENTIAL ZONE; RR-10 18.60.020 Uses Permitted Outright 18.60.020 Uses Permitted Outright The following uses and their accessory uses are permitted outright. A. A single-family dwelling, or a manufactured home subject to DCC 18.116.070. B. Utility facilities necessary to serve the area including energy facilities, water supply and treatment and sewage disposal and treatment. C. Community center, if shown and approved on the original plan or plat of the development. D. Agricultural use as defined in DCC Title 18. E. Class I and II road or street project subject to approval as part of a land partition, subdivision or subject to the standards and criteria established by DCC 18.116.230. F. Class III road or street project. G. Noncommercial horse stables as defined in DCC Title 18, excluding horse events. H. Horse events, including associated structures, involving: 1. fewer than 10 riders; 2. Ten to 25 riders, no more than two times per month on nonconsecutive days; or 3. More than 25 riders, no more than two times per year on nonconsecutive days. Incidental musical programs are not included in this definition. Overnight stays by participants, trainers or spectators in RVs on the premises is not an incident of such horse events. I. Operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District except as provided in DCC 18.120.050. J. Type 1 Home Occupation, subject to DCC 18.116.280. K. Historic Accessory Dwelling Units, subject to DCC 18.116.350. L. Residential Accessory'Dwelling Units, subject to DCC 18.116.355. HISTORY Adopted by Ord. PL-15 on 111111979 Amended by Ord. 91-005 §§30 & 31 on 31411991 Amended by Ord. 91-020 §1 on 512911991 Amended by Ord. 93-043 §8 on 812511993 Amended by Ord. 94-008 §12 on 61811994 Amended by Ord. 2001-016 §2 on 312812001 Amended by Ord. 2001-039 §5 on 1211212001 Amended by Ord. 2004-002 §7 on 412812004 Amended by Ord. 2019-009 §2 on 91312019 Recorded by Ord. 2019-009 §2 on 91312019 Amended by Ord. 2023-00x §x on (date) CHAPTER 18.116 SUPPLEMENTARY PROVISIONS 18.116.350 Historic Home Accessory Dwelling Units In The RR10 And MUA Zones 18.116.355 Residential Accessory Dwelling Units In The RR10 And MUA 10 Zones 18 116.350 Historic Home Accessory Dwelling Units In The RR10 And MUA Zones A. As used in this section: 1. "Historic Accessory dwelling unit 'ADU' " means a residential structure that is used in connection with or that is auxiliary to a single-family dwelling. For the purposes of this section "auxiliary" 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. 2. "Area zoned for rural residential use" means land that is not located inside an urban growth boundary as defined in ORS 195.060 and that is subject to an acknowledged exception to a statewide land use planning goal relating to farmland or forestland and planned and zoned by the county to allow residential use as a primary use. 3. "Historic home" means a single-family dwelling constructed between 1850 and 1945. 4. "New" means that the dwelling being constructed did not previously exist in residential or nonresidential form. "New" does not include the acquisition, alteration, renovation or remodeling of an existing structure. 5. "Place a manufactured home" means the placement of a manufactured home that did not previously exist on the subject lot of record; it may include the placement of a manufactured home that was previously used as a dwelling on another lot and moved to the subject lot of record. 6. "Single-family dwelling" means a residential structure designed as a residence for one family and sharing no common wall with another residence of any type. B. An owner of a lot or parcel within an area zoned for rural residential use (RR10 and MUA zenesZones) may construct a new single-family dwelling or place a manufactured home on the lot or parcel, provided: 1. The lot or parcel is not located in an area designated as an urban reserve as defined in ORS 195.137; 2. The lot or parcel is at least two acres in size; 3. A historic home is sited on the lot or parcel; 4. The owner converts the historic home to an accessory dwelling unit upon completion of the new single-family dwelling or placement of a manufactured home; and 5. The accessory dwelling unit maybe required to comply with all applicable laws and regulations relating to sanitation and wastewater disposal and treatment. C. The construction of an accessory dwelling unit under subsection (B) of this section is a land use action subject to DCC 22.20. D. An owner that constructs anew single-family dwelling or places a manufactured home under subsection (B) of this section may not: Subdivide, partition or otherwise divide the lot or parcel so that the new single-family dwelling or manufactured home is situated on a different lot or parcel from the accessory dwelling unit. 2. Alter, renovate or remodel the accessory dwelling unit so that the square footage of the accessory dwelling unit is more than 120 percent of the historic home's square footage at the time construction of the new single-family dwelling commenced. Rebuild the accessory dwelling unit if the structure is deemed a dangerous building due to fire or other natural disaster, pursuant to the Uniform Code for the Abatement of Dangerous Buildings, which defines "dangerous building" as "Whenever any portion thereof has been damaged by fire, earthquake, wind, flood or by any other cause, to such an extent that the structural strength or stability thereof is materially less than it was before such catastrophe and is less than the minimum requirements of the Building Code for new buildings of similar structure, purpose or location." 4. Construct an additional accessory dwelling unit on the same lot or parcel. A new single-family dwelling constructed or a'manufactured home placed under this section may be required to be served by the same water supply source as the accessory dwelling unit. Owner occupancy of either the accessory dwelling unit or the new single-family dwelling is not required. However, the accessory dwelling unit and the new single-family dwelling placed under this section and the aeeesseFy dwelling "^`+ may not be used simultaneously for short-term rentals of thirty (30) consecutive days or less. HISTORY Adopted by Ord. 2019-009 §3 on 91312019 Recorded by Ord. 2019-009 §3 on 91312019 Amended by Ord. 2023-00x §x on date] A. As used in this section: 1. "Accessory dwelling unit ('ADU')" means a residential structure that is used in connection with or that is auxiliary to a single-family dwelling. For the purposes of this section "auxiliary" 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. 2. "Rural residential use" means a lot or parcel located in the RR-10 or MUA-10 zones, consistent with the definition in ORS 215.501. 3. "Safe evacuation plan" means an identifiable route on a rights) -of -way and any onsite driveways from the accessory dwelling unit to the staged evacuation area. 4. "Single-family dwelling" means a residential structure designed as a residence for one family and sharing no common wall with another residence of any type. 5. "Staged evacuation area" means a public or private location that occupants of the accessory dwelling unit may evacuate to reorganize. 6. "Useable floor area" means all areas of the accessory dwelling unit included within the surrounding insulated exterior walls, exclusive of garages, carports, decks and porch covers. 7. "Vacation occupancy" means occupancy in a dwelling unit, not including transient occupancyin a hotel or motel, that has all of the following characteristics: a. The occupant rents the unit for vacation purposes only, not as a principal residence; and b. The occupant has a principal residence other than at the unit; and c. The period of authorized occupancy does not exceed 45 days. B. One accessory dwelling unit (ADU) is permitted outright on a lot or parcel zoned RR-10 or MUA- 10, provided: 1. One single-family dwelling is sited on the lot or parcel: a. As used in this section, "sited" means established onsite or applied for prior to issuance of any building or land use permits for an accessory dwelling unit. b. Existing dwelling units meeting all other criteria in this section maybe converted to an accessory dwelling unit during construction of a new primary single-family dwelling. 2. The lot or parcel is not located within the Redmond Urban Reserve Area, consistent with ORS 195.137. 3. No portion of the lot or parcel is within the Metolius Area of Critical State Concern, as defined in ORS 197.416. 4. The lot area is at least two acres in size, with the exception of those unsewered areas between Sunriver and the Klamath County border, defined as those unincorporated portions of Deschutes Count contained in Townships 195, 205, 21S, and 22S and Ranges 9E. 10E and 11E. Within these exception areas, the lot area is at least five acres rznr-_ 5. The accessory dwelling unit will have a minimum setback of 100 feet from adjacent land zoned F-1 F-2, or EFU and meet any other minimum setback requirements of the underlying zone and combining zones. 6 The accessory dwelling unit will not include more than 900 square feet of useable floor area. 7 The accessory dwelling unit will be located no farther than 100 feet from the existing single-family dwelling, measured from a wall of the existing single-family dwelling to the nearest part of the useable floor area of the accessory dwelling unit. 8 The accessorydwell unit receives approval from a sewer authority or Deschutes County Environmental Soils for onsite wastewater disposal and treatment. 9 The lot or parcel is served by a fire protection service provider with professionals who have received training or certification described in ORS 181A.410. 10. The accessory dwelling unit provides for all of the following: a Adequate access connecting an accessory dwelling unit with a fire protection service provider with professionals who have received training or certification described in ORS 181A.410. Adequate access is met by demonstrating compliance with section 10(a)i and 10(a)(ii), or section 10(a)(iii): i. A continuous minimum 20-foot width right(s)-of-way with an unobstructed vertical clearance of not less than 13.5 feet. For the purposes of this section, rights) -of -way are defined as: 1. Public roads with maintenance responsibility accepted by a unit of local or state government or assigned to landowners or homeowners association by covenant or agreement; or 2. Private roads, as permitted by DCC Title 18, with maintenance responsibility assigned to landowners or homeowners associations by covenant or agreement pursuant to ORS 105; and ii A continuous minimum 20-foot width onsite driveway with an unobstructed vertical clearance of not less than 13.5 feet, designed and maintained as follows: 1. Composed of an all-weather surface including asphalt or concrete; or 2. Designed and maintained to support a minimum gross vehicle weight (GVW) of 75,000 Ibs as certified by a Professional Engineer, registered in Oregon; iii. Written confirmation from afire protection service provider with professionals who have received training or certification described in ORS 181A.410, on a form prepared by Deschutes County, that access to the property meets minimum fire district requirements to provide emergency services to the property; b. A safe evacuation plan; and c. _ Written authorization from the property owner(s) of the staged evacuation area that the occupants of the accessory dwelling unit may evacuate to the staged evacuation area. 11. Wildfire Hazard Mitigation Building Code Standards: a If the Statewide Wildfire Hazard Map described in ORS 477.490 has been approved, the following requirements shall apply: i For areas designated as high wildfire hazard that are identified pursuant to ORS 477.490: 1. The Wildfire Hazard Mitigation building code standards as described in section R327 of the Oregon Residential Specialty Code. b If the Statewide Wildfire Hazard Map described in ORS 477.490 has not been approved the following requirements shall apply: i The Wildfire Hazard Mitigation building code standards as described in section R327 of the Oregon Residential Specialty Code. 12. Wildfire Hazard Mitigation Defensible Space Standards: a. If the Statewide Wildfire Hazard Map described in ORS 477.490 has been approved the following requirements shall apply: L For all wildfire hazard designations in the wildland-urban interface that are identified pursuant to ORS 477.490: 1. The minimum defensible space rules established by the State Fire Marshal as described in ORS 476.392. b. If the Statewide Wildfire Hazard Map described in ORS 477.490 has not been approved then either the section 12(b)(i) or 12(b)(ii) requirements shall apply: i The property owner(s) shall construct and maintain the following firebreaks on land surrounding the accessory dwelling unit on land that is owned or controlled by the owner: 1. Primary Firebreak. Prior to use, a primary firebreak, not less than 10 feet wide shall be constructed containing nonflammable materials. This may include lawn walkways driveways, gravel borders or other similar materials; and 2. Secondary Firebreak. A secondary firebreak of not less than 20 feet wide shall be constructed outside the primary firebreak. This firebreak need not be bare ground but can include a lawn, ornamental shrubbery or individual or groups of trees separated by a distance equal to the diameter of the crowns adjacent to each other, or 15 feet, whichever is greater. All trees shall be pruned to at least eight feet in height. Dead fuels shall be removed; and 3. Fuel Break. A fuel break shall be maintained, extending a minimum of OE100 feet in all directions around the secondary firebreak. Individual and groups of trees within the fuel break shall be separated by a distance equal to the diameter of the crowns adiacent to each other, or 15 feet, whichever is greater. Small trees and brush growing underneath larger trees shall be removed to prevent spread of fire up into the crowns of the larger trees. All trees shall be pruned to at least eight feet in height. Dead fuels shall be removed. The fuel break shall be completed prior to the beginning of the coming fire season; and 4. No portion of a tree or any other vegetation shall extend to within 15 feet of the outlet of a stovepipe or chimney. ii. The accessory dwelling unit has defensible space and fuel break standards as developed in consultation with local fire protection service providers who have received training or certification described in ORS 181A.410. 13. The existingsin I� e-famil�dwellir�roperty on the lot or parcel is not subject to an order declaring it a nuisance or subject to any pending action under ORS 105.550 to 105.600. 14 A lot or parcel with an accessory dwelling unit approved under this section is ineligible for: a. A subdivision partition other division of the lot or parcel, or a property line adiustment where the result of such application would be to situate the existin a different lot or and b. Placement or construction of any additional accessory dwelling unit or any other permanent or temporary structure or dwelling unit designed or used for residential purposes, including medical hardship dwellings. 15 If the accessory dwelling unit is served bra well the construction of the accessory dwelling unit shall maintain all setbacks from the well required by the Water Resources Commission or Water Resources Department. 16. A letter confirming that the supplier of water is "Willing and Able to Serve" the accessory dwelling unit shall be provided if the accessory dwelling unit is to be served by any water source other than an onsite domestic well. 17 An existing single-family dwelling and an accessory dwelling unit allowed under this section are considered a_single unit for the purposes of calculating ground water right exemptions under ORS 537.545(1). 18. If the water supply source for the accessory dwelling unit or associated lands or gardens will be a well using water under ORS 537.545 (1)(b) or (d), no portion of the lot or parcel is within an area in which new or existing ground water uses under ORS 537.545 (1)(b) or (d) have been restricted by the Water Resources Commission. 19. The applicant shall sign and record with the County Clerk, prior to the issuance of a building permit, a restrictive covenant stating an accessory dwelling unit allowed under this section cannot be used for vacation occupancy as defined in DCC 18.116.355(A) 71 and consistent with ORS 90.100. HISTORY Adopted by Ord. 2023-00x §x on (date) CHAPTER 18.132 VARIANCES 18.132.010 Variance Application 18.132.020 Authority Of Hearings Body 18.132.025 Minor Variances 18.132.030 Hearings Body Action On Variance 18.132.040 Variance Procedure 18.132.010 Variance Application The Planning Director or Hearings Body may authorize area or use variance from the requirements of DCC Title 18. Application for a variance shall be made by petition stating fully the grounds of the application and the facts relied upon by the petitioner. HISTORY Adopted by Ord. PL-15 on 111111979 Repealed & Reenacted by Ord. 91-020 §1 on 512911991 18.132.020 Authority Of Hearings Body A variance may be granted unqualifiedly or may be granted subject to prescribed conditions, provided that the Planning Director or Hearings Body shall make all of the following findings: A. Area variance. 1. That the literal application of the ordinance would create practical difficulties resulting in greater private expense than public benefit. 2. That the condition creating the difficulty is not general throughout the surrounding area but is unique to the applicant's site. 3. That the condition was not created by the applicant. A self-created difficulty will be found if the applicant knew or should have known of the restriction at the time the site was purchased. 4. That the variance conforms to the Comprehensive Plan and the intent of the ordinance being varied. B. Use variance. 1. That the literal application of the ordinance would result in unnecessary hardship to the applicant. An unnecessary hardship will be found when the site cannot be put to any beneficial use under the terms of the applicable ordinance. 2. Each of the findings listed in DCC 18.132.020(A)(1), (2) and (4). C. Statutory Provisions. 1 Notwithstanding the provisions of this section, a variance may not be granted which amends any standards mandated by the Oregon Revised Statues (ORS) or Oregon Administrative Rules (OAR). HISTORY Adopted by Ord. PL-15 on 111111979 Repealed & Reenacted by Ord. 91-020 §1 on 512911991 Amended by Ord. 93-043 §24 on 812511993 Amended by Ord. 2023-00x §x on [datel 18.132.025 Minor Variances A variance seeking to depart from on -site requirements of DCC Title 18, such as setbacks and area requirements, by no greater than 10 percent of the required distance or area may be granted by the Planning Director or Hearings Body in conformance with DCC 18.132.025. A. In the case of a setback or size variance, the applicant shall show that the approval will result in: 1. More efficient use of the site; 2. Preservation of natural features where appropriate; 3. Adequate provision of light and privacy to adjoining properties; and 4. Preservation of topographic, vegetative and drainage features which would be adversely affected by application of the standards otherwise required by DCC Title 18. B. A parcel that is smaller than the minimum lot size at the time of application may not be reduced by more than 10 percent from its current size without a variance. C. Notwithstanding B, above, a property may be reduced by more than 10 percent of its current size without a variance if : 1. The property is located outside of a Farm (EFU) or Forest (F) zone; 2. The long-standing occupation area is different than the legal description in the deed for the subject property; 3. The purpose of the property line adjustment is to correct the deed description to match the long-standing occupation lines of the properties; and 4. The discrepancy between the deed lines and the occupation lines is documented by submittal of a narrative and maps prepared by an Oregon Licensed Professional Surveyor. As used in this sub -section, "long-standing" means in excess of ten (10) years. D. Statutory Provisions. 1. Notwithstanding the provisions of this section, a variance may not be granted which amends any standards mandated by the Oregon Revised Statues (ORS) or Oregon Administrative Rules (OAR). HISTORY Adopted by Ord. 91-038 §3 on 913011991 Amended by Ord. 2004-013 §15 on 912112004 Amended by Ord. 2010-003 §1 on 71612010 Amended by Ord. 2023-00x §x on (datel 18.132.030 Hearings Body Action On Variance In granting or denying a variance, the Planning Director or Hearings Body shall make a written record of his findings and the facts in connection therewith, and shall describe the variance granted and the conditions designated. The Planning Department shall keep the findings on file, and a copy of the variance granted and the condition thereof shall be recorded with the County Clerk. HISTORY Adopted by Ord. PL-15 on 111111979 Repealed & Reenacted by Ord. 91-020 §1 on 512911991 18.132.040 Variance Procedure The variance application shall be processed according to the terms of DCC Title 22, the Uniform Development Procedures Ordinance. HISTORY Adopted by Ord. PL-15 on 111111979 Repealed & Reenacted by Ord. 91-020 §1 on 512911991 CHAPTER 19.12 URBAN AREA RESERVE ZONE UAR-10 19.12.020 Permitted Uses 19.12.020 Permitted Uses The following uses are permitted: A. Farm uses as defined in DCC Title 19. B. Single-family dwelling. C. Home occupation subject to DCC 19.88.140. D. Other accessory uses and accessory buildings and structures customarily appurtenant to a permitted use subject to DCC 19.92.020. E. Day care center facilities subject to site review, DCC 19.76 and DCC 19.88.160. F. Farm stands subject to DCC 19.76 and DCC 19.88.290. G. Historic Accessory Dwelling Units, subject to DCC 19.92.150. H. Residential Accessory Dwelling Units, subiect to DCC 19.92.160 HISTORY Adopted by Ord. PL-11 on 711111979 Amended by Ord. 88-042 §4 on 1211911988 Repealed & Reenacted by Ord. 90-038 §1,2 on 101311990 Amended by Ord. 91-001 §2 on 112811991 Amended by Ord. 2008-014 §3 on 313112008 Repealed & Reenacted by Ord. 2009-002 §1,2 on 211112009 Amended by Ord. 2019-009 §4 on 91312019 Recorded by Ord. 2019-009 §4 on 91312019 Amended by Ord. 2023-OOx §x on (date] CHAPTER 19.20 SUBURBAN LOW DENSITY RESIDENTIAL ZONE; SR 2 1/2 19.20.020 Permitted Uses 19.20.020 Permitted Uses The following uses are permitted: A. Single-family dwelling. B. Agriculture, excluding the keeping of livestock. C. Home occupations subject to DCC 19.88.140. D. Other accessory uses and accessory buildings and structures customarily appurtenant to a permitted use subject to DCC 19.92.020. E. Historic Accessory Dwelling Units, subject to DCC 19.92.150. F_Child care facility and/or preschool G. Residential Accessory Dwelling Units, subject to DCC 19.92.160. HISTORY Adopted by Ord. PL-11 on 711111979 Amended by Ord. 88-042 §6 on 1211911988 Repealed & Reenacted by Ord. 90-038 §1,2 on 101311990 Amended by Ord. 91-001 §4 on 112811991 Amended by Ord. 93-018 §3 on 511911993 Repealed & Reenacted by Ord. 2009-002 §1,2 on 211112009 Amended by Ord. 2019-009 §5 on 91312019 Recorded by Ord. 2019-009 §5 on 91312019 Amended by Ord. 2020-001 §20 on 412112020 Amended by Ord. 2020-010 §9 on 71312020 Amended by Ord. 2023-00x §x on [datel CHAPTER 19.22 WESTSIDE TRANSECT ZONE; WTZ 19.22.020 Permitted Uses 19.22.020 Permitted Uses The following uses and their accessory uses are permitted outright: A. Single-family dwelling. B. Home occupation subject to DCC 19.88.140. C_Other accessory uses and accessory buildings and structures customarily appurtenant to a permitted use subject to DCC 19.92.020. D. Residential Accessory Dwelling Units, subiect to DCC 19.92.160. HISTORY Adopted by Ord. 2019-001 §8 on 411612019 Amended by Ord. 2021-00x §x on (date] CHAPTER 19.92 INTERPRETATIONS AND EXCEPTIONS 19 92.150 Accessory Dwelling Units In UAR-10 And SR-2 1/2 Zones 19 92 160 Residential Accessory Dwelling Units In UAR-10, SR-2 %, And WTZ Zones 19 92.150 Historic Accessory Dwelling Units In UAR-10 And SR-2 1/2 Zones A. As used in this section: 1. "Historic Accessory dwelling unit 'ADU' " means a residential structure that is used in connection with or that is auxiliary to a single-family dwelling. For the purposes of this section "auxiliary" 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. 2. "Area zoned for rural residential use" means land that is not located inside an urban growth boundary as defined in ORS 195.060 and that is subject to an acknowledged exception to a statewide land use planning goal relating to farmland or forestland and planned and zoned by the county to allow residential use as a primary use. 3. "Historic home" means a single-family dwelling constructed between 1850 and 1945. 4. "New" means that the dwelling being constructed did not previously exist in residential or nonresidential form. "New" does not include the acquisition, alteration, renovation or remodeling of an existing structure.' 5. "Single-family dwelling" means a residential structure designed as a residence for one family and sharing no common wall with another residence of any type. B. An owner of a lot or parcel within an area zoned for rural residential use (UAR-10 and SR-2 1/2 zene�Zones) may construct a new single-family dwelling on the lot or parcel, provided: 1. The lot or parcel is not located in an area designated as an urban reserve as defined in ORS 195.137; 2. The lot or parcel is at least two acres in size; 3. A historic home is sited on the lot or parcel; 4. The owner converts the historic home to an accessory dwelling unit upon completion of the new single-family dwelling; and 5. The accessory dwelling unit maybe required to comply with all applicable laws and regulations relating to sanitation and wastewater disposal and treatment. C. The construction of an accessory dwelling unit under subsection (B) of this section is a land use action subject to DCC 22.20. D. An owner that constructs anew single-family dwelling under subsection (B) of this section may not: 1. Subdivide, partition or otherwise divide the lot or parcel so that the new single-family dwelling is situated on a different lot or parcel from the accessory dwelling unit. 2. Alter, renovate or remodel the accessory dwelling unit so that the square footage of the accessory dwelling unit is more than 120 percent of the historic home's square footage at the time construction of the new single-family dwelling commenced. Rebuild the accessory dwelling unit if the structure is deemed a dangerous building due to fire or other natural disaster, pursuant to the Uniform Code for the Abatement of Dangerous Buildings, which defines "dangerous building" as "Whenever any portion thereof has been damaged by fire, earthquake, wind, flood or by any other cause, to such an extent that the structural strength or stability thereof is materially less than it was before such catastrophe and is less than the minimum requirements of the Building Code for new buildings of similar structure, purpose or location." 4. Construct an additional accessory dwelling unit on the same lot or parcel. E. A new single-family dwelling constructed under this section may be required to be served by the same water supply source as the accessory dwelling unit. F. Owner occupancy of either the accessory dwelling unit or the new single-family dwelling is not required. However, the new single-family dwelling and the accessory dwelling unit may not be used simultaneously for short-term rentals of thirty (30) consecutive days or less. HISTORY Adopted by Ord. 2019-009 §6 on 91312019 Recorded by Ord. 2019-009 §6 on 91312019 Amended by Ord. 2023-D0x §x on (ddtel 19 92.160 Residential Accessory Dwelling Units In UAR-10, SR-2 %, And WTZ Zones A. As used in this section: 1. "Accessory dwelling unit ('ADU')" means a residential structure that is used in connection with or that is auxiliary to a single-family dwelling. For the purposes of this section "auxiliary" 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. 2. "Rural residential use" means a lot or parcel located in the UAR-10, SR 2 %Z, or WTZ zones consistent with the definition in ORS 215.501. 3. "Safe evacuation plan" means an identifiable route on a rights) -of -way and any onsite driveways from the accessory dwelling unit to the staged evacuation area. 4. "Single-family dwelling" means a residential structure designed as a residence for one family and sharing no common wall with another residence of any type. 5. "Staged evacuation area" means a public or private location that occupants of the accessory dwelling unit may evacuate to reorganize. 6. "Useable floor area" means all areas of the accessory dwelling unit included within the surrounding insulated exterior walls, exclusive of garages, carports, decks and porch covers. 7 "Vacation occupancv" means occupancy in a dwelling unit, not including transient occupancy in a hotel or motel, that has all of the following characteristics: a. The occupant rents the unit for vacation purposes only, not as a principal residence; and b. The occupant has a principal residence other than at the unit; and c. The period of authorized occupancy does not exceed 45 days. B. One accessory dwelling unit ADU) is�ermitted outright on a loi oor parcel zoned UAR-10, SR- 2 % or WTZ, provided: 1. One single-family dwelling is sited on the lot or parcel: a. As used in this section, "sited" means established onsite or applied for prior to issuance of any building or land use permits for an accessory dwelling unit. b Existing dwelling units meeting all other criteria in this section may be converted to 2. The lot area or parcel area is at least two acres in size. 3 The accessory dwelling unit will have a minimum setback of 100 feet from adjacent land zoned F-1 F-2 or EFU and meet any other minimum setback requirements of the underlying zone and combining zones. 4 The accessory dwelling unit will not include more than 900 square feet of useable floor area. 5. The accessory dwelling unit will be located no farther than 100 feet from the existing single-family dwelling measured from a wall of the existing single-family dwelling to the nearest part of the useable floor area of the accessory dwelling unit. 6. The accessory dwelling unit receives approval from a sewer authority or Deschutes County Environmental Soils for onsite wastewater disposal and treatment. 7. The lot or parcel is served by a fire protection service provider with professionals who have received training or certification described in ORS 181A.410. 8. The accessory dwelling unit provides for all of the following: a. Adequate access connecting an accessory dwelling unit with afire protection service provider with professionals who have received training or certification described in ORS 181A.410. Adequate access is met by demonstrating compliance with section 8(a)i and 8(a)(ii), or section 8(a)(iii): i. A continuous minimum 20-foot width rights) -of -way with an unobstructed vertical clearance of not less than 13.5 feet. For the purposes of this section, right(s)-of-way are defined as: 1. Public roads with maintenance responsibility accepted by a unit of local or state government or assigned to landowners or homeowners association by covenant or agreement; or 2. Private roads, as permitted by DCC Title 18, with maintenance responsibility assigned to landowners or homeowners associations by covenant or agreement pursuant to ORS 105; and ii. A continuous minimum 20-foot width onsite driveway with an unobstructed vertical clearance of not less than 13.5 feet, designed and maintained as follows: 1. Composed of an all-weather surface including asphalt or concrete; or 2. Designed and maintained to support a minimum gross vehicle weight (GVW) of 75,000 Ibs as certified by a Professional Engineer, registered in Oregon; Written confirmation from a fire protection service provider with professionals who have received training or certification described in ORS 181A.410, on a form prepared by Deschutes County, that access to the property meets minimum fire district requirements to provide emergency services to the property; b. A safe evacuation plan; and c. Written authorization from the property owner(s) of the staged evacuation area that the occupants of the accessory dwelling unit may evacuate to the staged evacuation area. 9. Wildfire Hazard Mitigation Building Code Standards: a. If the Statewide Wildfire Hazard Map described in ORS 477.490 has been approved, the following requirements shall apply: i. For areas designated as high wildfire hazard that are identified pursuant to ORS 477.490: 1. The Wildfire Hazard Mitigation building code standards as described in section R327 of the Oregon Residential Specialty Code. b. If the Statewide Wildfire Hazard Map described in ORS 477.490 has not been approved, the following requirements shall apply: i. The Wildfire Hazard Mitigation building code standards as described in section R327 of the Oregon Residential Specialty Code. 10. Wildfire Hazard Mitigation Defensible Space Standards: a. If the Statewide Wildfire Hazard Map described in ORS 477.490 has been approved, the following requirements shall apply: L For all wildfire hazard designations in the wildland-urban interface that are identified pursuant to ORS 477.490: 1. The minimum defensible space rules established by the State Fire Marshal as described in ORS 476.392. b. If the Statewide Wildfire Hazard Map described in ORS 477.490 has not been approved then either the section 10(b)(i) or 10(b)(ii) requirements shall apply: L The property owner(s) shall construct and maintain the following firebreaks on land surrounding the accessory dwelling unit on land that is owned or controlled by the owner: 1. Primary Firebreak. Prior to use, a primary firebreak, not less than 10 feet wide shall be constructed containing nonflammable materials. This may include lawn walkways, driveways, gravel borders or other similar materials; and 2. Secondary Firebreak. A secondary firebreak of not less than 20 feet wide shall be constructed outside the primary firebreak. This firebreak need not be bare ground, but can include a lawn, ornamental shrubbery or individual or groups of trees separated by a distance equal to the diameter of the crowns adjacent to each other, or 15 feet, whichever is greater. All trees shall be pruned to at least eight feet in height. Dead fuels shall be removed• and 3. Fuel Break. A fuel break shall be maintained, extending a minimum of 100 feet in all directions around the secondary firebreak. Individual and groups of trees within the fuel break shall be separated by a distance equal to the diameter of the crowns adjacent to each other, or 15 feet, whichever is greater. Small trees and brush growing underneath larger trees shall be removed to prevent spread of fire up into the crowns of the larger trees. All trees shall be pruned to at least eight feet in height. Dead fuels shall be removed. The fuel break shall be completed prior to the beginning of the coming fire season; and 4. No portion of a tree or any other vegetation shall extend to within 15 feet of the outlet of a stovepipe or chimney. ii. The accessory dwelling unit has defensible space and fuel break standards as developed in consultation with local fire protection service providers who have received training or certification described in ORS 181A.410. 11. The existing single-family dwelling property on the lot or parcel is not subiect to an order declaring it a nuisance or subject to any pending action under ORS 105.550 to 105.600. 12. A lot or parcel with an accessory dwelling unit approved under this section is ineligible for: a. A subdivision partition, other division of the lot or parcel, or a property line adjustment where the result of such application would be to situate the existing single-family dwelling on a different lot or parcel than the accessory dwelling unit; and b. Placement or construction of any additional accessory dwelling unit or any other permanent or temporary structure or dwelling unit designed or used for residential purposes, including medical hardship dwellings. 13. If the accessory dwelling unit is served by a well, the construction of the accessory dwelling unit shall maintain all setbacks from the well required by the Water Resources Commission or Water Resources Department. 14. A letter confirming that the supplier of water is "Willing and Able to Serve" the accessory dwelling unit shall be provided if the accessory dwelling unit is to be served by any water source other than an onsite domestic well. 15. An existing single-family dwelling and an accessory dwelling unit allowed under this section are considered a single unit for the purposes of calculating ground water right exemptions under ORS 537.545(1). If the line unit or will be a well using water under ORS 537.545 (1)(b) or (d), no portion of the lot c is within an area in which new or existing ground water uses under ORS 537.545 or (d) have been restricted by the Water Resources Commission. 17. The applicant shall sign and record with the County Clerk, prior to the issuance of a building permit a restrictive covenant stating an accessory dwelling unit allowed under this section cannot be used for vacation occupancy, as defined in DCC 19.92.160(A)(7) and consistent with ORS 90.100. HISTORY Adapted by Ord. 2023-00x §x on (date] CHAPTER 19.108 VARIANCES 19 108.010 Authorization To Grant Or Deny Variances 19.108.020 Criteria 19.108.030 Authorization To Grant Or Deny Variances To On -Site Requirements 19.108.040 Criteria For Variances Granted Under DCC 19.108.030 19.108.050 Application For A Variance 19.108.010 Authorization To Grant Or Deny Variances Except as provided in DCC 19.108.030, the Planning Director or Hearings Body may authorize variances from the standards of DCC Title 19 where it can be shown that, owing to special and unusual circumstances related to a specific piece of property, the literal interpretation of DCC Title 19 would cause an undue or unnecessary hardship; except that no variance shall be granted to allow the use of the property for purposes not authorized within the pertinent zone or to alter any procedural requirements of DCC Title 19. In granting a variance, the Planning Director or Hearings Body may attach conditions necessary to protect the best interest of the surrounding property or neighborhood and to otherwise achieve the purposes of DCC Title 19. HISTORY Adopted by Ord. PL-11 on 711111979 Repealed & Reenacted by Ord. 90-038 §1 on 101311990 19.108.020 Criteria No variance shall be granted pursuant to the provisions of DCC 19.108.010 unless the applicant can establish: A. That special conditions exist which are peculiar to the land, structure or building involved and which are not applicable to other lands, buildings or structures in the same zone; and That strict interpretation of the provisions of DCC Title 19 would deprive the applicant of rights commonly enjoyed by other properties in the same zone under the terms of DCC Title 19; and C. That the special conditions and circumstances do not result from the actions of the applicant and such conditions and circumstances do not merely constitute pecuniary hardship or inconvenience; and D_That granting the variance will be in harmony with the objectives of DCC Title 19 and not injurious to the neighborhood or otherwise detrimental to the public welfare. 0-.E Notwithstanding the provisions of this section a variance may not be granted which amends any standards mandated by the Oregon Revised Statues (ORS) or Oregon Administrative Rules (OAR). HISTORY Adopted by Ord. PL-11 on 711111979 Repealed & Reenacted by Ord. 90-038 §1 on 101311990 Amended by Ord. 2023-00x §x on [datel 19.108.030 Authorization To Grant Or Deny Variances To On -Site Requirements The Planning Director or Hearings Body may authorize a variance from the standards of DCC Title 19 relating to on -site requirements (e.g. yards, parking, etc.), provided that no variance under DCC 19.108.030 shall be greater than 25% of the setback, parking or other similar area requirement from which the variance is sought. HISTORY Adopted by Ord. PL-11 on 711111979 Repealed & Reenacted by Ord. 90-038 §1 on 101311990 19.108.040 Criteria For Variances Granted Under DCC 19.108.030 in the case of a yard variance, the applicant shall show the approval will result in: A. More efficient use of the site; and B. Preservation of natural features, where appropriate; and C. Adequate provision of light and privacy to adjoining properties; and D. Preservation of natural features of the site (topography, vegetation and drainage) which would be adversely affected by application of required parking standards, where appropriate. HISTORY Adopted by Ord. PL-11 on 711111979 Repealed & Reenacted by Ord. 90-038 §1 on 101311990 19.108.050 Application For A Variance A property owner or his agent, authorized in writing, may initiate a request for a variance by filing an application with the Planning Director. The application shall be accompanied by a plan, drawn to a suitable scale, showing the condition to be varied and the dimensions and arrangements of the proposed development. The application shall be reviewed in the manner provided for in the County's land use procedures ordinance. HISTORY Adopted by Ord. PL-11 on 711111979 Amended by Ord. 88-042 §42 on 1211911988 Repealed & Reenacted by Ord. 90-038 §1,2 on 101311990 Amended by Ord. 95-050 §9 on 612811995 CHAPTER 22.04 INTRODUCTION AND DEFINITIONS 22.04.040 Verifying Lots of Record 22.04.040 Verifying Lots of Record A. Purpose; scope. Concurrent with or prior to the issuance of certain permits, a lot or parcel shall be verified pursuant to this section to reasonably ensure compliance with the zoning and land division laws in effect on the date the lot or parcel was created. Not all permits require verification. If required, verifying that the lot or parcel was lawfully created is a threshold issue that should be addressed before the permit may be issued, but does not supersede or nullify other permit requirements. This section 22.04.040 provides an applicant the option to concurrently verify a lot or parcel as part of applying for a permit that requires verification, or preliminarily apply for a declaratory ruling to thereby determine the scope of available permits. B. Permits Requiring Verification. 1. Unless an exception applies pursuant to subsection (13)(2) below, verifying a lot or parcel pursuant to subsection (C) shall be required prior to the issuance of the following permits: a. Any land use permit for a unit of land in the Exclusive Farm Use Zones (DCC Chapter 18.16), Forest Use Zone - F1 (DCC Chapter 18.36), or Forest Use Zone — F2 (DCC Chapter 18.40); b. Any permit for lot or parcel that includes wetlands as shown on the Statewide Wetlands Inventory; c. Any permit for a lot or parcel subject to wildlife habitat special assessment; d. In all zones, a land use permit relocating property lines that reduces in size a lot or parcel; eeln all zones, a land use, structural, or non -emergency on -site sewage disposal system permit if the lot or parcel is smaller than the minimum area required in the applicable zone; f In all zones a permit for a Historic Accessory Dwelling Unit as defined in DCC 18.116.350 or 19.92.150; e-.g. In all zones a permit for an Accessory Dwelling Unit as defined in DCC 18.116.355 or 19.92.160. C. Verified Lots of Record. Permits that require verification shall only be issued to lots or parcels that meet the "lot of record" definition in 18.04.030. D. Findings; Declaratory Ruling. If an applicant is applying for a land use permit listed in subsection (13)(1), the County shall include a finding verifying that the lot or parcel meets the "lot of record" definition in 18.04.030, a finding noting that the lot or parcel does not meet the "lot of record" definition in 18.04.030, or a finding noting that verification was not required because the lot or parcel qualified for an exception pursuant to subsection (13)(2). If an applicant is applying for a permit listed in subsection (13)(1) that does not require public notice, or prior to applying for any permit, an applicant may request a declaratory ruling pursuant to DCC Chapter 22.40. If the lot or parcel meets the "lot of record" definition in 18.04.030, the County shall issue the declaratory ruling determining that the lot or parcel qualifies for all permits listed in subsection (13)(1). If the lot or parcel does not meet the "lot of record" definition in 18.04.030, the County shall not issue the declaratory ruling and instead shall provide the applicant information on permit options that do not require verification and information on verification exceptions that may apply pursuant to subsections (13)(2). HISTORY Adopted by Ord. 2017-015 §3 on 111111979 Amended by Ord. 2023-00x §x on date) vT ES COG�-A BOARD OF COMMISSIONERS MEETING DATE: August 9, 2023 SUBJECT: First reading of Ordinance 2023-009 relating to Destination Resort Text Amendments RECOMMENDED MOTION: Move approval of first reading of Ordinance 2023-009 by title only. BACKGROUND AND POLICY IMPLICATIONS: The Board of County Commissioners (Board) will consider a first reading of Ordinance 2023-009 on August 9, 2023 for a request for a legislative Text Amendment (file no. 247-22- 000835-TA) related to Destination Resorts in Deschutes County, submitted by Central Oregon LanclWatch (COLW). This reading follows a Board public hearing held on July 12, 2023. BUDGET IMPACTS: None ATTENDANCE: Tarik Rawlings, Senior Transportation Planner MEMORANDUM TO: Deschutes County Board of Commissioners (Board) FROM: Tarik Rawlings, Senior Transportation Planner Will Groves, Planning Manager DATE: August 2, 2023 SUBJECT: Consideration of First Reading of Ordinance 2023-009 - Destination Resort Text Amendments The Board of County Commissioners (Board) will consider a first reading of Ordinance 2023-009 on August 16, 2023 for an applicant -initiated Legislative Text Amendment (file no. 247-22-000835-TA) to Deschutes County's Destination Resort (DR) Combining Zone. Attached to this memorandum are the proposed text amendments and findings including the recommended language modifications from Caldera Springs Real Estate. Within the proposed amendments, added language is shown in bold underline. The record is available for inspection on the project website: https://www deschutescounty gov/cd/page/247-22-000835-ta-destination-resort-text-amendment I. BACKGROUND In October 2022, the applicant Central Oregon LanclWatch (COLW), applied for a legislative amendment to Deschutes County's Destination Resort (DR) Combining Zone. The proposed amendments would add language from Oregon Revised Statute (ORS) 197.455(1)(a), which would limit residential uses to those necessary for the staff and management of the resort at any new Destination Resort allowed within 24 air miles of an urban growth boundary population of at least 100,000. This proposed amendment would only apply to newly proposed Destination Resorts and would not apply to existing or approved Destination Resorts. The applicable language from ORS 197.455(1)(a) is provided below: (1) A destination resort may be sited only on lands mapped as eligible for destination resort siting by the affected county. The county may not allow destination resorts approved pursuant to ORS 197.435 (Definitions for ORS 197.435 to 197.467) to 197.467 (Conservation easement to protect resource site) to be sited in any of the following areas: (a) Within 24 air miles of an urban growth boundary with an existing population of 100,000 or more unless residential uses are limited to those necessary for the staff and management of the resort. Staff submitted a 35-day Post -Acknowledgement Plan Amendment (PAPA) notice to the Department of Land Conservation and Development on January 11, 2023. Agency notice was sent to relevant agency partners on January 18, 2023, and several agency comments were received. Notice of the proposal was sent to all property owners within Deschutes County who are within the DR Zone on January 23, 2023. The Notice explained the scope of the proposal, provided a project -specific website related to the application, and gave meeting information for the initial Planning Commission public hearing held on February 23, 20231 . An initial public hearing was held before the Deschutes County Planning Commission on February 23, 20232, with a continued public hearing held on March 9, 20233. The Planning Commission held deliberations on March 23, 20234, ultimately recommending approval of the proposal with three (3) Commissioners voting in favor and one (1) Commissioner voting against the proposal (two (2) Commissioners recused themselves from deliberations). Eventually, the Board conducted a work session on July 10, 20235, in preparation for a public hearing on July 12, 2023'. Deliberations before the Board were held on July 26, 2023' and two of the three Commissioners voted to approve the request, including the modified language proposed by Caldera Springs Real Estate. The Board agreed to a first reading of Ordinance 2023-009 on August 9, 2023 and a second reading two weeks later. Collectively, over 570 public comments have been submitted into record regarding the subject proposal, including supportive, oppositional, and neutral comments. 11. NEXT STEPS / SECOND READING The Board is scheduled to conduct the second reading of Ordinance 2023-009 on August 23, 2023, fourteen (14) days following the first reading. ATTACHMENTS: 1. Draft Ordinance 2023-009 and Exhibits Exhibit A: Proposed Text Amendments (including modified language) Exhibit B: Proposed Findings 1 https://www.deschutescounty.gov/cd/page/247-22-000835-ta-desti nation -resort -text -a mend ment z https://www.deschutes.org/bc-pc/page/planning-commission-27 3 https://www.deschutes.org/bc-pc/page/planning-commission-24 4 https://www.deschutes.org/bc-pc/page/planning-commission-28 5 https://www.deschutes.org/bcc/page/board-county-commissioners-meeting-113 6 https://www.deschutes.org/bcc/page/board-county-commissioners-meeting-114 https://www.deschutes.org/bcc/page/board-county-commissioners-meeting-116 Page 2 of 2 REVIEWED LEGAL COUNSEL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Deschutes County Code Title 18, Chapters 18.113.030 and 18.113.060, and Title 19, Chapters 19.106.030 and 19.106.060 to incorporate language from ORS 197.455(1)(a), which * ORDINANCE NO. 2023-009 limits residential uses on destination resorts within 24 air miles of growth boundaries with a population of at least 100,000. WHEREAS, Central Oregon LandWatch (COLW) applied for changes (Planning Division File No. 247- 22-000835-TA) to Deschutes County Code Title 18, Chapters 18.113.030 and 18.116.060, and Title 19, Chapters 19.106.030 and 19.106.060; and WHEREAS, the Deschutes County Planning Commission reviewed the proposed changes on February 23 and March 9, 2023 and forwarded to the Deschutes County Board of County Commissioners ("Board") a recommendation of approval on March 23, 2023; and WHEREAS, the Board considered this matter after a duly noticed public hearing on July 12, 2023 and concluded that the public will benefit from the proposed changes to the Deschutes County Code Title 18 and Title 19; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. Chapter 18.113.030, "Uses in Destination Resorts", Chapter 18.113.060, "Standards for Destination Resorts", Chapter 19.106.030, "Uses in Destination Resorts", and Chapter 19.106.060, "Standards for Destination Resorts", are amended to read as described in Exhibit "A", attached hereto and by this reference incorporated herein, with new language underlined. I/% PAGE I OF 2 - ORDINANCE NO. 2023-009 Section 2. FINDINGS. The Board adopts as its findings, Exhibit "B" attached and incorporated by reference herein. Dated this of , 2023 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ANTHONY DEBONE, Chair PATTI ADAIR, Vice Chair ATTEST: Recording Secretary PHILIP CHANG Date of Is'Reading: day of 12023. Date of 2" d 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.2023-009 Exhibit A - PROPOSED TEXT AMENDMENTS FILE NUMBER: 247-22-000835-TA APPLICANT: Central Oregon LanclWatch 2843 NW Lolo Drive Suite 200 Bend, OR 97703 PROPERTY: N/A OWNER: REQUEST: The applicant, Central Oregon LandWatch, has applied for a legislative text amendment to Deschutes County's Destination Resort (DR) Combining Zone to add language from Oregon Revised Statute (ORS) 197.455(1)(a), which would limit residential uses to those necessary for the staff and management of the resort at any new Destination Resort within 24 air miles of certain urban growth boundaries. STAFF CONTACT: Tarik Rawlings, Senior Transportation Planner Phone: 541-317-3148 Email: tarik.rawlings@deschutes.org RECORD: Record items can be viewed and downloaded from: https://www deschutes org/cd/page/247-22-000835-ta-destination-resort- text-amendment Record items can be viewed and downloaded from: www.buildingpermits.oregon.gov I. APPLICABLE CRITERIA: Deschutes County Code (DCC) Title 18, Deschutes County Zoning Ordinance: Chapter 18.113, Destination Resorts Zone (DR) Title 19, Bend Urban Growth Boundary Zoning Ordinance: Chapter 19.106, Destination Resorts Title 22, Deschutes County Development Procedures Ordinance 117 NW Lafayette Avenue, Bend, Oregon 97703 i P.O. Box 6005, Bend, OR 97708-6005 A (541)388-6575 @cdd@deschutes.org @www.deschutes.org/cd Title 23, Deschutes County Comprehensive Plan Oregon Revised Statutes (ORS) Chapter 197 — Comprehensive Land Use Planning I Section 455 - Siting of destination resorts; sites from which destination resort excluded Oregon Administrative Rules (OAR) OAR 660, Division 15, Statewide Planning Goals II. PROPOSED TEXT AMENDMENTS: The proposed text amendments are also detailed in the referenced applicant's burden of proof materials, included as an attachment. Below are the proposed changes with additional text identified by bold underline. Title 18, County Zoning: Chapter 18.113 Destination Resorts Zone; DR Section 18.113.030 Uses in Destination Resorts The following uses are allowed, provided they are part of, and are intended to serve persons at, the destination resort pursuant to DCC 18.113.030 and are approved in a final master plan: A. Visitor -oriented accommodations designed to provide for the needs of visitors to the resort: 1. Overnight lodging, including lodges, hotels, motels, bed and breakfast facilities, time share units and similar transient lodging facilities; 2. Convention and conference facilities and meeting rooms; 3. Retreat centers; 4. Restaurants, lounges and similar eating and drinking establishments; and 5. Other similar visitor -oriented accommodations consistent with the purposes of DCC 18.113 and Goal 8. B. Developed recreational facilities designed to provide for the needs of visitors and residents of the resort; 1. Golf courses and clubhouses; 2. Indoor and outdoor swimming pools; 3. Indoor and outdoor tennis courts; 4. Physical fitness facilities; 5. Equestrian facilities; 6. Wildlife observation shelters; 7. Walkways, bike paths, jogging paths, equestrian trails; 8. Other similar recreational facilities consistent with the purposes of DCC 18.113 and Goal 8. C. Residential accommodations: 247-22-000835-TA Page 2 of 13 1. Single-family dwellings; 2. Duplexes, triplexes, fourplexes and multi -family dwellings; 3. Condominiums; 4. Townhouses; 5. Living quarters for employees; 6. Time-share projects. 7. Within 24 air miles of an urban growth boundary with an existing population of 100,000 or more residential uses are limited to those necessary for the staff and management of the resort provided that this provision shall apply only to newly proposed resorts seeking Conceptual Master Plan approval under DCC 18.113.050 or expansion proposals of existing developments under DCC 18.113.025. D. Commercial services and specialty shops designed to provide for the visitors to the resort: 1. Specialty shops, including but not limited to delis, clothing stores, bookstores, gift shops and specialty food shops; 2. Barber shops/beauty salons; 3. Automobile service stations limited to fuel sales, incidental parts sales and minor repairs; 4. Craft and art studios and galleries; 5. Real estate offices; 6. Convenience stores; 7. Other similar commercial services which provide for the needs of resort visitors and are consistent with the purposes of DCC 18.113 and Goal 8. E. Uses permitted in open space areas generally include only those uses that, except as specified herein, do not alter the existing or natural landscape of the proposed open space areas. No improvements, development or other alteration of the natural or existing landscape shall be allowed in open space areas, except as necessary for development of golf course fairways and greens, hiking and bike trails, lakes and ponds and primitive picnic facilities including park benches and picnic tables. Where farming activities would be consistent with identified preexisting open space uses, irrigation equipment and associated pumping facilities shall be allowed. F. Facilities necessary for public safety and utility service within the destination resort. G. Other similar uses permitted in the underlying zone consistent with the purposes of DCC 18.113.030. H. Accessory Uses in Destination Resorts: 1. The following accessory uses shall be permitted provided they are ancillary to the destination resort and consistent with the purposes of DCC 18.113 and Goal 8: a. Transportation -related facilities excluding airports; b. Emergency medical facilities; c. Storage structures and areas; d. Kennels as a service for resort visitors only; e. Recycling and garbage collection facilities; f. Other similar accessory uses consistent with the purposes of DCC 18.113 and Goal 8. 247-22-000835-TA Page 3 of 13 I. Within 24 air miles _ofanurban growth boundary with an existing population of 100,000 or more, residential uses are limited to those necessary for the staff and management of the resort, provided that this provision shall apply only to newly proposed resorts seeking Conceptual Master Plan approval under DCC 18.113.050 or expansion proposals of existing developments under DCC 18.113.025. Section 18.113.060 Standards for Destination Resorts The following standards shall govern consideration of destination resorts: A. The destination resort shall, in the first phase, provide for and include as part of the CMP the following minimum requirements: 1. At least 150 separate rentable units for visitor oriented overnight lodging as follows: a. The first 50 overnight lodging units must be constructed prior to the closure of sales, rental or lease of any residential dwellings or lots. b. The resort may elect to phase in the remaining 100 overnight lodging units as follows: 1) At least 50 of the remaining 100 required overnight lodging units shall be constructed or guaranteed through surety bonding or equivalent financial assurance within 5 years of the closure of sale of individual lots or units, and; 2) The remaining 50 required overnight lodging units shall be constructed or guaranteed through surety bonding or equivalent financial assurance within 10 years of the closure of sale of individual lots or units. 3) If the developer of a resort guarantees a portion of the overnight lodging units required under subsection 18.113.060(A)(1)(b) through surety bonding or other equivalent financial assurance, the overnight lodging units must be constructed within 4 years of the date of execution of the surety bond or other equivalent financial assurance. 4) The 2.5:1 accommodation ratio required by DCC 18.113.060(D)(2) must be maintained at all times. c. If a resort does not chose to phase the overnight lodging units as described in 18.113.060(A)(1)(b), then the required 150 units of overnight lodging must be constructed prior to the closure of sales, rental or lease of any residential dwellings or lots. 2. Visitor oriented eating establishments for at least 100 persons and meeting rooms which provide seating for at least 100 persons. 3. The aggregate cost of developing the overnight lodging facilities, developed recreational facilities, and the eating establishments and meeting rooms shall be at least $ 7,000,000 (in 1993 dollars). 4. At least $ 2,333,333 of the $7,000,000 (in 1993 dollars) total minimum investment required by DCC 18.113.060(A)(3) shall be spent on developed recreational facilities. 247-22-000835-TA Page 4 of 13 5. The facilities and .accommodation required by DC"C 18.113.060(A)(2) through (4) must be con_,tri..icted or financially assured pur su ant to DCC 18.113.110 prior to closure of sales, rental or lease of any residential dwellings or lots or as allowed by DCC 18. 11 3.060(A)(1). B. All destination resorts shall have a minimum of 160 contiguous acres of land. Acreage split by public roads or rivers or streams shall count toward the acreage limit, provided that the CMP demonstrates that the isolated acreage will be operated or managed in a manner that will be integral to the remainder of the resort. C. All destination resorts shall have direct access onto a state or County arterial or collector roadway, as designated by the Comprehensive Plan. D. A destination resort shall, cumulatively and for each phase, meet the following minimum requirements: 1. The resort shall have a minimum of 50 percent of the total acreage of the development dedicated to permanent open space, excluding yards, streets and parking areas. Portions of individual residential lots and landscape area requirements for developed recreational facilities, visitor oriented accommodations or multi family or commercial uses established by DCC 18.124.070 shall not be considered open space; 2. Individually owned residential units that do not meet the definition of overnight lodging in DCC 18.04.030 shall not exceed two and one-half such units for each unit of visitor oriented overnight lodging. Individually owned units shall be considered visitor oriented lodging if they are available for overnight rental use by the general public for at least 38 weeks per calendar year through one or more central reservation and check in service(s) operated by the destination resort or by a real estate property manager, as defined in ORS 696.010. a. The ratio applies to destination resorts which were previously approved under a different standard. E. Phasing. A destination resort authorized pursuant to DCC 18.113.060 may be developed in phases. If a proposed resort is to be developed in phases, each phase shall be as described in the CMP, Each individual phase shall meet the following requirements: 1. Each phase, together with previously completed phases, if any, shall be capable of operating in a manner consistent with the intent and purpose of DCC 18.113 and Goal 8. 2. The first phase and each subsequent phase of the destination resort shall cumulatively meet the minimum requirements of DCC 18.113.060 and DCC 18.113.070. 3. Each phase may include two or more distinct noncontiguous areas within the destination resort. F. Destination resorts shall not exceed a density of one and one-half dwelling units per acre including residential dwelling units and excluding visitor oriented overnight lodging. G. Dimensional Standards: 1. The minimum lot area, width, lot coverage, frontage and yard requirements and building heights otherwise applying to structures in underlying zones and the provisions of DCC 18.116 relating to solar access shall not apply within a destination resort. These standards shall be determined by the Planning Director 247-22-000835-TA Page 5 of 13 or Hearings Body at the time of the CMP. In determining these standards, the Planning Director or Hearings Body shall find that the minimum specified in the CMP are adequate to satisfy the intent of the comprehensive plan relating to solar access, fire protection, vehicle access, visual management within landscape management corridors and to protect resources identified by LCDC Goal 5 which are identified in the Comprehensive Plan. At a minimum, a 100-foot setback shall be maintained from all streams and rivers. Rimrock setbacks shall be as provided in DCC Title 18. No lot for a single family residence shall exceed an overall project average of 22,000 square feet in size. 2. Exterior setbacks. a. Except as otherwise specified herein, all development (including structures, site -obscuring fences of over three feet in height and changes to the natural topography of the land) shall be setback from exterior property lines as follows: 1) Three hundred fifty feet for commercial development including all associated parking areas; 2) Two hundred fifty feet for multi family development and visitor oriented accommodations (except for single family residences) including all associated parking areas; 3) One hundred fifty feet for above grade development other than that listed in DCC 18.113.060(G)(2)(a)(1) and (2); 4) One hundred feet for roads; 5) Fifty feet for golf courses; and 6) Fifty feet for jogging trails and bike paths where they abut private developed lots and no setback for where they abut public roads and public lands. b. Notwithstanding DCC 18.113.060(G)(2)(a)(3), above grade development other than that listed in DCC 18.113.060(G)(2)(a)(1) and (2) shall be set back 250 feet in circumstances where state highways coincide with exterior property lines, c. The setbacks of DCC 18,113.060 shall not apply to entry roadways and signs. H. Floodplain requirements. The floodplain zone (FP) requirements of DCC 18.96 shall apply to all developed portions of a destination resort in an FP Zone in addition to any applicable criteria of DCC 18.113. Except for floodplain areas which have been granted an exception to LCDC goals 3 and 4, floodplain zones shall not be considered part of a destination resort when determining compliance with the following standards; 1. One hundred sixty acre minimum site; 2. Density of development; 3. Open space requirements. A conservation easement as described in DCC Title 18 shall be conveyed to the County for all areas within a floodplain which are part of a destination resort. I. The Landscape Management Combining Zone (LM) requirements of DCC 18.84 shall apply to destination resorts where applicable. 247-22-000835-TA Page 6 of 13 113 M Excavation, grading and fill and removal within the bed and banks of a stream or river or in a wetland shall be a separate conditional use subject to all pertinent requirements of DCC Title 18. Time share units not included in the overnight lodging calculations shall be subject to approval under the conditional use criteria set forth in DCC 18.128. Time share units identified as part of the destination resort's overnight lodging units shall not be subject to the time share conditional use criteria of DCC 18.128. The overnight lodging criteria shall be met, including the 150-unit minimum and the 2- 1/2 to 1 ratio set forth in DCC 18.113.O6O(D)(2). 1. Failure of the approved destination resort to comply with the requirements in DCC 18.113.O6O(L)(2) through (6) will result in the County declining to accept or process any further land use actions associated with any part of the resort and the County shall not issue any permits associated with any lots or site plans on any part of the resort until proof is provided to the County of compliance with those conditions. 2. Each resort shall compile, and maintain, in perpetuity, a registry of all overnight lodging units. a. The list shall identify each individually -owned unit that is counted as overnight lodging. b. At all times, at least one entity shall be responsible for maintaining the registry and fulfilling the reporting requirements of DCC 18.113.060(L)(2) through (6). c. Initially, the resort management shall be responsible for compiling and maintaining the registry. d. As a resort develops, the developer shall transfer responsibility for maintaining the registry to the homeowner association(s). The terms and timing of this transfer shall be specified in the Conditions, Covenants & Restrictions (CC&Rs). e. Resort management shall notify the County prior to assigning the registry to a homeowner association. f. Each resort shall maintain records documenting its rental program related to overnight lodging units at a convenient location in Deschutes County, with those records accessible to the County upon 72 hour notice from the County. g. As used in this section, "resort management" includes, but is not limited to, the applicant and the applicant's heirs, successors in interest, assignees other than a home owners association. 3. An annual report shall be submitted to the Planning Division by the resort management or home owners association(s) each February 1, documenting all of the following as of December 31 of the previous year: a. The minimum of 150 permanent units of overnight lodging have been constructed or that the resort is not yet required to have constructed the 150 units; b. The number of individually -owned residential platted lots and the number of overnight -lodging units; 247-22-000835-TA Page 7 of 13 M 5 A c. The ratio between the individually -owned residential platted lots and the overnight lodging units; d. For resorts for which the conceptual master plan was originally approved on or after January 1, 2001, the following information on each individually - owned residential unit counted as overnight lodging. 1) Who the owner or owners have been over the last year; 2) How many nights out of the year the unit was available for rent; 3) How many nights out of the year the unit was rented out as an overnight lodging facility under DCC 18.113; 4) Documentation showing that these units were available for rental as required. e. For resorts for which the conceptual master plan was originally approved before January 1, 2001, the following information on each individually owned residential unit counted as overnight lodging. Notwithstanding anything to the contrary in Deschutes County Code, these resorts may count units that are not deed -restricted and/or do not utilize a central check -in system operated by the resort so long as such units meet the Oregon statutory definition of overnight lodgings in Eastern Oregon 1) For those units directly managed by the resort developer or operator. a) Who the owner or owners have been over the last year; b) How many nights out of the year the unit was available for rent; c) How many nights out of the year the unit was rented out as an overnight lodging facility under DCC 18.113; d) Documentation showing that these units were available for rent as required. 2) For all other units. a) Address of the unit; b) Name of the unit owner(s); c) Schedule of rental availability for the prior year. The schedule of rental availability shall be based upon monthly printouts of the availability calendars posted on-line by the unit owner or the unit owner's agent. f. This information shall be public record subject to the non -disclosure provisions in ORS Chapter 192. To facilitate rental to the general public of the overnight lodging units, each resort shall set up and maintain in perpetuity a telephone reservation system.. Any outside property managers renting required overnight lodging units shall be required to cooperate with the provisions of this code and to annually provide rental information on any required overnight lodging units they represent to the central office as described in DCC 18.113.060(L)(2) and (3). Before approval of each final plat, all the following shall be provided: a. Documentation demonstrating compliance with the 2-1/2 to 1 ratio as defined in DCC 18.113.060(D)(2); 247-22-000835-TA Page 8 of 13 b. Documentation on all individually -owned residential units counted as overnight lodging, including all of the following: 1) Designation on the plat of any individually -owned units that are going to be counted as overnight lodging; 2) Deed restrictions requiring the individually -owned residential units designated as overnight lodging units to be available for rental at least 38 weeks each year through a central reservation and check - in service operated by the resort or by a real estate property manager, as defined in ORS 696.010; 3) An irrevocable provision in the resort Conditions, Covenants and Restrictions ("CC&Rs) requiring the individually -owned residential units designated as overnight lodging units to be available for rental at least 38 weeks each year through a central reservation and check -in service operated by the resort or by a real estate property manager, as defined in ORS 696.010; 4) A provision in the resort CC&R's that all property owners within the resort recognize that failure to meet the conditions in DCC 18.113.060(L)(6)(b)(3) is a violation of Deschutes County Code and subject to code enforcement proceedings by the County; 5) Inclusion of language in any rental contract between the owner of an individually -owned residential unit designated as an overnight lodging unit and any central reservation and check in service or real estate property manager requiring that such unit be available for rental at least 38 weeks each year through a central reservation and check -in service operated by the resort or by a real estate property manager, as defined in ORS 696.010, and that failure to meet the conditions in DCC 18.113.060(L)(6)(b)(5) is a violation of Deschutes County Code and subject to code enforcement proceedings by the County. 7. Compliance Fee. a. In the event that a resort that was originally approved before January 1, 2001 fails to report compliance with the 2.5:1 ratio in a calendar year as reported in accordance with 18.113.060(L)(3)(e), the remedy shall be that such resort shall pay a compliance fee due not later than April 15 of the year following the year in which the shortfall occurred. b. The compliance fee will be calculated as follows: 1) First, by calculating the average per unit transient lodging tax paid by the resort the prior calendar year by dividing the total amount paid by the resort in transient lodging taxes for the prior calendar year by the sum of the number of overnight units managed by the resort for which the resort paid transient lodging taxes that same year and the number of timeshare units; 2) Second, by multiplying that average per unit transient lodging tax amount by the number of additional overnight lodging units that 247-22-000835-TA Page 9 of 13 would have been necessary to comply with the 2.5:1 ratio for the applicable calendar year. c. If the Resort were to apply to create more residential lots, the Resort may not apply the compliance fee to meet the 2.5:1 ratio of individually -owned residential units to overnight lodging units per DCC 18.113.060(D)(2) and will have to demonstrate compliance per the new reporting methods or construct more overnight lodging units in order to comply with the 2.5:1 ratio. M. Within 24 air miles of an urban growth boundary with an existing_ population of 100,000 or more residential uses are limited to those necessary for the staff and management of the resort provided that this provision shall apply only to newly proposed resorts seekingConceptual onceptual Master Plan approval under DCC 18.113.050 or expansion proposals of existing developments under DCC 18.113.025. Title 19 Bend Urban Growth Boundary Zoning Ordinance: Chapter 19.106 Destination Resorts Section 19.106.030 Uses in Destination Resorts The following uses are allowed, provided they are part of and are intended to serve persons at the destination resort pursuant to DCC 19.106.030 and are approved in a final master plan: A. Visitor -oriented accommodations designed to provide for the needs of visitors to the resort: 1. Overnight lodging, including lodges, hotels, motels, bed and breakfast facilities, time share units and similar transient lodging facilities; 2. Convention and conference facilities and meeting rooms; 3. Retreat centers; 4, Restaurants, lounges and similar eating and drinking establishments; or 5. Other similar visitor -oriented accommodations consistent with the purposes of DCC 19.106 and Goal 8. B. Developed recreational facilities designed to provide for the needs of visitors and residents of the resort including: 1. Golf courses and clubhouses; 2. Indoor and outdoor swimming pools; 3. Indoor and outdoor tennis courts; 4. Physical fitness facilities; 5. Equestrian facilities; 6. Wildlife observation shelters; 7. Walkways, bike paths, jogging paths, equestrian trails; or 8. Other similar recreational facilities consistent with the purposes of DCC 19.106 and Goal 8. C. Residential accommodations: 1. Single-family dwellings; 247-22-000835-TA Page 10 of 13 2. Duplexes, triplexes, fourplexes and multi -family dwellings; 3. Condominiums; 4. Townhouses; 5. Living quarters for employees; or 6. Time share projects. 7. Within 24 air miles of an urban growth boundary with an existing population of 100,000 or more residential uses are limited to those necessary for the staff and management of the resort. D. Commercial services and specialty shops designed to provide for the visitors to the resort: 1. Specialty shops including, but not limited to delis, clothing stores, book stores, gift shops and specialty food shops; 2. Barber shops and beauty salons; 3. Automobile service stations limited to fuel sales, incidental parts sales and minor repairs; 4. Craft and art studios and galleries; 5. Real estate offices; 6. Convenience stores; or 7. Other similar commercial services which provide for the needs of resort visitors and are consistent with the purposes of DCC 19.106 and Goal 8. E. Uses permitted in open space areas generally include only those uses that, except as specified herein, do not alter the existing or natural landscape of the proposed open space areas. No improvements, development or other alteration of the natural or existing landscape shall be allowed in open space areas, except as necessary for development of golf course fairways and greens, hiking and bike trails, lakes and ponds and primitive picnic facilities including park benches and picnic tables. Where farming activities would be consistent with identified pre-existing open space uses, irrigation equipment and associated pumping facilities shall be allowed. F. Facilities necessary for public safety and utility service within the destination resort. G. Other similar uses permitted in the underlying zone consistent with the purposes of DCC 19.106.020. H. Accessory uses in destination resorts: 1. The following accessory uses shall be permitted provided they are ancillary to the destination resort and consistent with the purposes of DCC 19.106 and Goal 8: a. Transportation -related facilities excluding airports; b. Emergency medical facilities; c. Storage structures and areas; d. Kennels as a service for resort visitors only; e. Recycling and garbage collection facilities; or f. Other similar accessory uses are consistent with the purposes of DCC 19.106 and Goal 8. I. Within 24 air miles of an urban growth boundary with an existing population of 100,000 or more residential uses are limited to those necessary for the staff and management of the resort. 247-22-000835-TA Pagel 1 of 13 Section 19.106.060 Standards For Destination Resorts The following standards shall govern consideration of destination resorts: A. The destination resort shall, in the first phase, provide for and include as part of the CMP the following minimum requirements: 1. At least 150 separate rentable units for visitor -oriented lodging; 2. Visitor -oriented eating establishments for at least 100 persons and meeting rooms which provide eating for at least 100 persons; 3. At least $7 million shall be spent on improvements for on -site developed recreational facilities and visitor -oriented accommodations exclusive of costs for land, sewer and water facilities and roads. Not less than one-third of this amount shall be spent on developed recreational facilities. The spending minimums provided for are stated in 1993 dollars; and 4. The facilities and accommodations required by this DCC 19.106.060 must be physically provided or financially assured pursuant to DCC 19.106.110 prior to closure of sales, rental or lease of any residential dwellings or lots. B. All destination resorts shall have a minimum of 160 contiguous acres of land. Acreage split by public roads or rivers or streams shall count toward the acreage limit, provided that the CMP demonstrates that the isolated acreage will be operated or managed in a manner that will be integral to the remainder of the resort. C. All destination resorts shall have direct access onto a state, county, or city arterial or collector roadway, as designated by the Bend Urban Area General Plan. D. A destination resort shall, cumulatively and for each phase, meet the following minimum requirements: 1. The resort shall have a minimum of 50 percent of the total acreage of the development dedicated to permanent open space, excluding yards, streets and parking areas. Portions of individual residential lots and landscape area requirements for developed recreational facilities, visitor -oriented accommodations or multi -family or commercial uses established by DCC 19.76.080 shall not be considered open space; and 2. Individually -owned residential units shall not exceed two and one-half such units for each unit of visitor -oriented overnight lodging constructed or financially assured within the resort. Individually -owned units shall be considered visitor - oriented lodging if they are available for overnight rental use by the general public for at least 45 weeks per calendar year through one or more central reservation and check -in service(s). E. Phasing. A destination resort authorized pursuant to DCC 19.106.060 may be developed in phases. If a proposed resort is to be developed in phases, each phase shall be as described in the CMP. Each individual phase shall meet the following requirements: 1. Each phase, together with previously completed phases, if any, shall be capable of operating in a manner consistent with the intent and purpose of DCC 19.106 and Goal 8; 247-22-000835-TA Page 12 of 13 2. The first phase and each subsequent phase of the destination resort shall cumulatively meet the minimum requirements of DCC 19.106.060 and DCC 19,76.070, and; 3. Each phase may include two or more distinct non-contiguous areas within the destination resort. F. Dimensional standards: 1. The minimum lot area, width, lot coverage, frontage and yard requirements and building heights otherwise applying to structures in underlying zones and the provisions of DCC 19.88.210 relating to solar access shall not apply within a destination resort. These standards shall be determined by the Planning Director or Hearings Body at the time of the CMP. In determining these standards, the Planning Director or Hearings Body shall find that the minimum specified in the CMP are adequate to satisfy the intent of the Bend Urban Area General Plan relating to solar access, fire protection, vehicle access, and to protect resources identified by LCDC Goal 5 which are identified in the Bend Urban Area General Plan. At a minimum, a 100 foot setback shall be maintained from all streams and rivers. No lot for a single-family residence shall exceed an overall project average of 22,000 square feet in size. 2. Exterior setbacks and buffers. a. A destination resort shall provide for the establishment and maintenance of buffers between the resort and adjacent land uses, including natural vegetation and where appropriate, fences, berms, landscaped areas, and other similar types of buffers. b. Exterior setbacks shall also be provided to ensure that improvements and activities are located to minimize adverse effects of the resort on uses on surrounding lands. G. Floodplain requirements. The Flood Plain Zone (FP) requirements of DCC 19.72 shall apply to all developed portions of a destination resort in an FP Zone in addition to any applicable criteria of DCC 19.106. Except for flood plain areas which have been granted an exception to LCDC goals 3 and 4, Flood Plain Zones shall not be considered part of a destination resort when determining compliance with the following standards; 1. One hundred sixty acre minimum site; 2. Open space requirements. A conservation easement as described in DCC Title 19 shall be conveyed to the County for all areas within a flood plain which are part of a destination resort. H. Excavation, grading and fill and removal within the bed and banks of a stream or river or in a wetland shall be a separate conditional use subject to all pertinent requirements of DCC Title 19. I. Time share units not included in the overnight lodging calculations shall be subject to approval under the conditional use criteria set forth in DCC 19.100. Time share units identified as part of the destination resort's overnight lodging units shall not be subject to the time share conditional use criteria of DCC 19.100. J. Within 24 air miles of an urban growth boundary with an existing population of 100,000 or more residential uses are limited to those necessary for the staff and management of the resort All other standards of this section continue to apply. 247-22-000835-TA Page 13 of 13 Exhibit B - Findings I. PROPOSAL In October 2022, the applicant Central Oregon LanclWatch (COLW), applied for a legislative amendment to Deschutes County's Destination Resort (DR) Combining Zone. The proposed amendments would add language from Oregon Revised Statute (ORS) 197.455(1)(a), which would limit residential uses to those necessary for the staff and management of the resort at any new Destination Resort allowed within 24 air miles of an urban growth boundary population of at least 100,000. This proposed amendment would only apply to newly proposed Destination Resorts and would not apply to existing or approved Destination Resorts. The applicable language from ORS 197.455(1)(a) is provided below: (1) A destination resort may be sited only on lands mapped as eligible for destination resort siting by the affected county. The county may not allow destination resorts approved pursuant to ORS 197.435 (Definitions for ORS 197.435 to 197.467) to 197.467 (Conservation easement to protect resource site) to be sited in any of the following areas: (a) Within 24 air miles of on urban growth boundary with an existing population of 100,000 or more unless residential uses are limited to those necessary for the staff and management of the resort. The County's spatial analysis of the distribution of DR -Zoned properties within Deschutes County indicates that most of the DR -Zoned properties are within 24 air miles of the City of Bend's urban growth boundary'. The only DR -Zoned properties outside of the 24-air mile buffer (approximately 20 parcels) appear to be located west and southwest of the City of La Pine's urban growth boundary, predominantly along the Little Deschutes River corridor. 11. BACKGROUND Recently, the City of Bend's population exceeded 100,000 individuals'. Notice of the proposal was sent to all property owners within Deschutes County who are encumbered by the DR Zoning District on January 23, 2023. The Notice explained the scope of the proposal, provided a project -specific website related to the application, and gave meeting information for the upcoming public hearing on February 23, 20233. Agency notice was sent to relevant agency partners on January 18, 2023, and several agency comments were received. County staff notified the Department of Land Conservation and Development (DLCD) about the proposal on January 11, 2023 through DLCD's 1 https://dial.deschutes.org/Real/InteractiveMap z https://www.pdx.edu/population-research/population-estimate-reports 3 https•//www.deschutescounty.gov/cd/page/247-22-00083s-ta-destination-resort-text-amendment Exhibit B - Ordinance 2023-009 online PAPA submittal'. Additionally, printed notice was published in the Bend Bulletin newspaper on February 7, 20235. 111. REVIEW CRITERIA Deschutes County lacks specific criteria in DCC Titles 18, 19, 22, or 23 for reviewing a legislative text amendment. Because the proposal is applicant -initiated, the applicant (COLW) bears the responsibility for justifying that the amendments are consistent with Statewide Planning Goals and its existing Comprehensive Plan. The applicant has provided the following responses to relevant criteria (also outlined in the applicant's application materials, attached): IV. FINDINGS CHAPTER 18.136, AMENDMENTS Section 18.136.010 Amendments DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for text or legislative map changes shall be as set forth in DCC 22.12. A request by a property owner for a quasi judicial map amendment shall be accomplished by filing an application on forms provided by the Planning Department and shall be subject to applicable procedures of DCC Title 22. FINDING: The applicant offers the following response to this criterion in their submitted application materials: The applicant proposes amendments to DCC Title 18 as set forth in DCC 18.136 and will follow procedures for text changes as set forth in DCC 22.12. Because the proposed amendments would apply to the many properties within 24 air miles of the City of Bend UGB, the request is for a legislative text amendment and not a quasi-judicial amendment. Determining whether a land use decision is legislative or quasi-judicial requires an inquiry into three factors: "(1) Whether the process is bound to result in a decision, (2) preexisting criteria, and (3) closely circumscribed factual situation or a relatively small number of persons." Heitsch v. City of Salem, 65 Or LUBA 187, 193 (2012) (citing Strawberry Hill 4 -Wheelers v. Board of Comm'nrs of Benton County, 287 Or 591, 601 P2d 769 (1977). The third factor asks whether "the land use consequences are disproportionately concentrated on a relatively small pool of persons, as opposed to a largerregion or the general population."Van Dyke v. Yamhill County, —Or LUBA_, slip op. at 4, LUBA No. 2018-061 (December 20, 2018). 4 https://db.Icd.state.or.us/PAPA_OnIine/Account/Login?ReturnUrl=%2fPAPA_OnIine 5 Based on email confirmation with Bend Bulletin's Inside Sales Executive, Julius Black dated January 23, 2023 Exhibit B - Ordinance 2023-009 This application request:. a legislative amendment. As to the first factor, this request is likely, although not bound, to result in o decision os to whether to amend the DCC as proposed herein. There are no statutory timelines under which the Counfy must make a decision on a legislative text amendment application. Both the second and third factors clearly indicate that the proposed amendments are legislative. The County lacks preexisting criteria for text amendments, as opposed to specific standards and criteria applicable to quasi-judicial map amendments found at DCC 18,136.020. Most instructive is the third factor. The amendments involve a large number of circumscribed factual situation pertaining to one or a handful of properties. The land use consequences of the proposed amendments would be proportionately distributed on a large pool of people across this large region of Deschutes County. Staff agrees that the subject application constitutes a legislative text amendment and is not quasi- judicial in nature. The applicant for a quasi-judicial rezoning must establish that the public interest is best served by rezoning the property. Factors to be demonstrated by the applicant are: A. That the change conforms with the Comprehensive Plan, and the change is consistent with the plan's introductory statement and goals. B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. C. That changing the zoning will presently serve the public health, safety and welfare considering the following factors: 1. The availability and efficiency of providing necessary public services and facilities. 2. The impacts on surrounding land use will be consistent with the specificgoals and policies contained within the Comprehensive Plan. D. That there has been a change in circumstances since the property was last zoned, or a mistake was made in the zoning of the property in question. FINDING: The applicant offers the following response to these criteria in their submitted application materials: As discussed above in the response to DCC 18.136.010, the proposed amendments are legislative and not quasi-judicial, and this section does not apply. Staff agrees that the subject application constitutes a legislative text amendment and is not quasi- judicial in nature. Section 18.136.030 Resolution Of Intent To Rezone A. If from the facts presented and findings and the report and recommendations of the Hearing Officer, as required by this Section, the County Commission determines that the public health, safety, welfare and convenience will be best served by a proposed change of zone, the County Commission may indicate its general approval in principal of the proposed rezoning by the adoption of a "resolution of intent to Exhibit B - Ordinance 2023-009 rezone." This resoif ion ifi lade ony conditions; .stipWations or limitations which the County Commission r uy feel necessary to require in the public interest as a prerequisite to final action, including those provisions that the County Commission may feel necessary to prevent speculative holding of property after rezoning. Such a resolution shall not be used to justify "spot zoning" or to create unauthorized zoning categories by excluding uses otherwise permitted in the proposed zoning. B. The fulfillment of all conditions, stipulations and limitations contained in the resolution on the part of the applicant shall make such a resolution a binding commitment on the Board of County Commissioners. Upon completion of compliance action by the applicant, the Board shall, by ordinance, effect such rezoning. The failure of the applicant to substantially meet any or all conditions, stipulations or limitations contained in a resolution of intent, including any time limit placed in the resolution, shall render the resolution null and void automatically and without notice, unless an extension is granted by the Board. C. Content of Site Plan. Where a site plan is required pursuant to Chapter 19.92, it shall include location of existing and proposed buildings, structures, accesses, off street parking and loading spaces and landscaping, existing and proposed topography, mechanical roof facilities, if subject property is so oriented as to become part of the view from adjacent properties, architectural perspective, layout and all elevations drawn without exaggerations, except where noted, including locations, area and design of signs and all landscaping. FINDING: The applicant offers the following response to these criteria in their submitted application materials: This section applies to quasi-judicial rezoning of property. As discussed above in the response to DCC 18.136.010, the proposed amendments are legislative and not quasi-judicial, and they do not propose rezoning any property. This section does not apply. Staff agrees with the applicant's statement. Section 18.136.040 Record of Amendments All amendments to the text or map of DCC Title 18 shall be filed with the County Clerk. FINDING: The applicant offers the following response to these criteria in their submitted application materials: Upon adoption, the proposed amendments will be filed with the County Clerk. Staff agrees that, if adopted, the proposed amendment will be filed with the County Clerk. CHAPTER 19.116, AMENDMENTS, APPEALS AND PROCEDURES Exhibit B - Ordinance 2023-009 Section 19.116.010 Amendments DCC Title 19 may be amended by changing the boundaries of zones or by changing any other provisions thereof subject to the provisions of DCC 19.116. A. Text changes and legislative map changes may be proposed by the Board of County Commissioners on its own motion, by the motion of the Planning Commission, upon payment of a fee, by the application of a member of the public. Such changes shall be made pursuant to DCC 22.12 and ORS 215.110 and 215.060. B. Any proposed quasi-judicial map amendment or change shall be handled in accordance with the applicable provisions of DCC Title 22. FINDING: The applicant offers the following response to these criteria in their submitted application materials: The proposed amendments to DCC Title 19 are being made by the application of a member of the public as allowed by DCC 19.116.010(A). The amendments are proposed pursuant to DCC 22.12 Legislative Procedures, addressed below. The amendments are made pursuant to ORS 215.110, which provides that a planning commission and governing body may recommend and enact ordinances intended to implement the comprehensive plan. The Deschutes County Comprehensive Plan (DCCP), at Section 3.9 Destination Resort Policies, includes Policy 3.9.3(a)(1): "Policy 3.9.3 Mapping for destination resort siting. a. To assure that resort development does not conflict with the objectives of other Statewide Planning Goals, destination resorts shall pursuant to Goal 8 not be sited in Deschutes County in the following areas: 1. within 24 air miles of an urban growth boundary with on existing population of 100,000 or more unless residential uses are limited to those necessary for the staff and management of the resort,` The proposed amendments are made pursuant to ORS 215,110 and will implement DCCP Policy 3.9.3(o)(1). The amendments are also made pursuant to ORS 215.060, which provides that a county shall conduct one or more public hearings on actions on the comprehensive plan. Public hearings on the proposed amendments will be held by both the Planning Commission and Board of County Commissioners. Staff confirms that the subject application appears to comply with the amendment process outlined above. Section 19.116.020 Standards For Zone Change The burden of proof is upon the applicant. The applicant shall in all cases establish: A. That the change conforms with the Comprehensive Plan. Specifically, the change is consistent with the plan's intent to promote an orderly pattern and sequence of growth. Exhibit B - Ordinance 2023-009 B. That the change will not interfere with existing development, development potential or value of other land in the vicinity of the proposed action. C. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. D. That the change will result in the orderly and efficient extension or provision of public services. Also, that the change is consistent with the County's policy for provision of public facilities. E. That there is proof of a change of circumstance or a mistake in the original zoning. FINDING: The applicant offers the following response to these criteria in their submitted application materials: No zone change is proposed as part of this application. This section is inapplicable. Staff agrees with the applicant's statement. Section 19.116.030 Record of Amendments The signed copy of each amendment to the text of Title 19, including the legal description of all lands rezoned legislatively or quasi judicially, shall be maintained on file in the office of the County Clerk. A record of such amendments shall be maintained in a form convenient for the use of the public by the Planning Director, including a map showing the area and date of all amendments hereto. The County Clerk shall keep the map of DCC Title 19 as originally enacted. Every five years after the enactment hereof, a map showing the cumulative amendments hereto for that period shall be filed with the County Clerk. In case of inconsistencies, the controlling record shall be first the original map filed with the County Clerk, and its five-year updates, if any. The Planning Director's map shall control as to map amendments not shown on the original for changes less than five years old. FINDING: The applicant offers the following response to these criteria in their submitted application materials: A signed copy of these amendments will be provided to the County Clerk. No lands will be rezoned by this application and the zoning map for Title 19 will not be amended. Staff agrees with the applicant's statement. Section 19.116.040 Resolution of Intent to Rezone If, from the facts presented and findings and the report and recommendations of the Hearings officer, as required by DCC 19.116.040, the County Commission determines that the public health, safety, welfare and convenience will be best served by a proposed change of zone, the County Commission may indicate its general approval in principal of the proposed rezoning by the adoption of a "resolution of intent to rezone." This resolution shall include any conditions, stipulations or limitations which the County Commission may Exhibit B - Ordinance 2023-009 feel necessary to require in the public interest as a prerequisite to final action, including those provisions which the County Commission may feel necessary to prevent speculative holding of property after rezoning. The fulfillment of all conditions, stipulations and limitations contained in said resolution, on the part of the applicant, shall make such a resolution a binding commitment on the County Commission. Such a resolution shall not be used to justify spot zoning or create unauthorized zoning categories by excluding uses otherwise permitted in the proposed zoning. Upon completion of compliance action by the applicant, the County Commission shall, by ordinance, effect such rezoning. The failure of the applicant to substantially meet any or all conditions, stipulations or limitations contained in a resolution of intent, including the time limit placed in the resolution, shall render said resolution null and void automatically and without notice, unless an extension is granted by the County Commission upon recommendation of the Hearings Officer. A. Content of Site Plan. Where a site plan is required pursuant to DCC 19.92, it shall include location of existing and proposed buildings, structures, accesses, off-street parking and loading spaces and landscaping, existing and proposed topography, mechanical roof facilities, if subject property is so oriented as to become part of the view from adjacent properties, architectural perspective, layout and all elevations drawn without exaggerations, except where noted, including locations, area and design of signs and all landscaping. B. Resolution on Intent Binding. The fulfillment of all conditions, stipulations and limitations contained in the resolutions of intent on the part of the applicant shall make the resolution binding on the County Commission. Upon compliance with the resolution by the applicant, the County Commission shall, by ordinance, effect such reclassification. FINDING: The applicant offers the following response to these criteria in their submitted application materials: No zone change is proposed as part of this application. This section is inapplicable. Staff agrees with the applicant's statement. CHAPTER 22.12, LEGISLATIVE PROCEDURES Section 22,12.010. Hearing Required FINDING: The applicant offers the following response to this criterion in their submitted application materials: The proposed amendments will be reviewed by both the Planning Commission and the Board of County Commissioners, and will include public hearings. Exhibit B - Ordinance 2023-009 Staff agrees that this criterion will be met because a public hearing will be held before the Deschutes County Planning Commission and Board of County Commissioners. 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: The applicant offers the following response to this criterion in their submitted application materials: This criterion will be met with notice to be published in the Bend Bulletin newspaper for the Planning Commission public hearing, and the Board of County Commissioners' public hearing. Staff agrees that this criterion will be met by notice being published in The Bend Bulletin newspaper. B. Posted Notice. Notice shall be posted at the discretion of the Planning Director and where necessary to comply with ORS 203.045. FINDING: The applicant offers the following response to this criterion in their submitted application materials: Notice will be posted if determined to be necessary by the Planning Director. Posted notice is only required under ORS 203.045(5)(a) under specific circumstances described in that section. No such posting is required in this case. 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: The applicant offers the following response to this criterion in their submitted application materials: Individual notice will be sent if determined to be necessary by the Planning Director. Given the proposed legislative amendments do not apply to any specific property, no individual notices are anticipated. The applicant conferred with County staff as to whether notice to affected property owners pursuant to ORS 215.203, also known as "Measure 56 notice," need be provided. Staff agreed in an email dated October 19, 2022 that this proposal "will not require Measure 56 notice Exhibit B - Ordinance 2023-009 as the proposed addition of language referencing state law is not a "change to the zoning" that would require M56 notice."Exhibit F Ultimately, County staff (in coordination with County administration and legal counsel) found that the proposal would require individual notice pursuant to ORS 215.503 to provide ample public notice to affected properties and property owners about the subject proposal. The proposed amendments are legislative and do not apply to any specific property. In compliance with ORS 215.503, notice was sent to individual property owners who may be affected by the proposed amendments. 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 has been 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 Central Oregon LandWatch (COLW), and the Deschutes County Planning Division has received the required fees. This criterion has been 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: This criterion will be met because a public hearing will be held before the Deschutes County Planning Commission and subsequently the Board of County Commissioners. Section 22.12.050 Final Decision All legislative changes shall be adopted by ordinance FINDING: The proposed legislative changes included in file no. 247-22-000835-TA will be implemented by ordinances if approved and adopted by the Board. This criterion will be met. Exhibit B - Ordinance 2023-009 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. Goal 2: Land Use Planning: The applicant offers the following response to this criterion in their submitted application materials: Goals, policies, and processes related to this application are included in the Deschutes County Comprehensive Plan, Title 23 and Deschutes County Code, Title 19 and Title 22. Compliance with these processes, policies, and regulations are documented within this application. Goal 2 is met. Staff notes that an Oregon Land Conservation and Development Department 35-day notice was initiated on January 11, 2023. Public hearings before both the Planning Commission and the Board of County Commissioners will be held. This Findings document provides the applicant's basis for the proposed amendments. Goal 3: Agricultural Lands: The applicant offers the following response to this criterion in their submitted application materials: Goal 3 is to "preserve and maintain agricultural lands." No lands will be rezoned as part of this application. Some lands in the DRZ are designated Agriculture and zoned Exclusive Farm Use pursuant to Goal 3. The proposed amendments would reduce the amount of nonfarm residential development allowed on EFU land by ensuring certain lands in the DRZ conform with ORS 197.455(1) and Goal 8. Goal 3 is met. Adverse impacts to farming practices are not anticipated under these amendments and no such impacts have been identified in the record. The proposed amendments appear to be consistent with Goal 3. Goal 4: Forest Lands: The applicant offers the following response to this criterion in their submitted application materials: Goal 4 is "to conserve forest lands[]" No lands will be rezoned as part of this application. Some lands in the DRZ are designated Forest and zoned F1 or F2 pursuant to Goal 4. The proposed amendments would reduce the amount of residential development allowed on Forest zoned land by ensuring certain lands in the DRZ conform with ORS 197.455(1) and Goal 8. Goal 4 is met. Adverse impacts to forests and forest practices are not anticipated under these amendments and no such impacts have been identified in the record. The proposed amendments appear to be consistent with Goal 4. Goal 5: Open Spaces,..Scenic and Historic Areas, and Natural Resources: The applicant offers the following response to this criterion in their submitted application materials: Exhibit B - Ordinance 2023-009 Similar to the previous two goals, the proposed amendments would reduce the amount of residential development allowed on certain lands in the DRZ, ensuring conformance with ORS 197.455(1) and Goal 8. Some lands in the DRZ include inventoried Goal 5 resources, including mineral and aggregate resources, scenic views, riparian areas, floodplains, and wildlife habitat. The effect of the proposed amendments would be to provide greater protection for these resources, as the amount of potential residential development (a conflicting use) on certain lands in the DRZ would be reduced. In any event, the proposed amendments do not create or amend a Goal 5 resource list or and land use regulation adopted to protect a Goal 5 resource, they do not allow new uses that could be conflicting uses with a Goal 5 resource, and they do not amend an acknowledged UGB. OAR 660-023-0250(3). Goal 5 is met. 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 the Wildlife Area overlay zone which protects inventoried wildlife resources. This zone protects scenic resources through additional aesthetic requirements. The code provision will remain unchanged. Staff finds that the amendments appear to be consistent with Goal 5. Goal 6: Air Water and Land Resources Quality: The applicant offers the following response to this criterion in their submitted application materials: The proposed amendments will likely not impact the quality of the air, water and land resources. If anything, the reduced potential for residential development on certain lands in the DRZ will benefit the quality of associated air, water, and land resources by reducing the potential for solid waste, water waste, noise and thermal pollution, air pollution, and industry -related contaminants on those resources. Goal 6 is met. The proposed text amendments do not propose to change the County's Plan policies or implementing regulations for compliance with Goal 6. Staff finds that the proposed amendments appear to be consistent with Goal 6. Goal 7• Areas Sub'ect to Natural Disasters and Hazards: The applicant offers the following response to this criterion in their submitted application materials: To the extent that lands in the DRZ are in areas subject to natural disasters and hazards, the proposed amendments mitigate that risk by reducing the potential for residential development on certain lands in the DRZ, in accordance with ORS 197.455(1) and Goal 8. Goal 7 is met. The proposed text amendments do not propose to change the County's Plan or implementing regulations regarding natural disasters and hazards. Staff finds that the proposed amendments appear to be consistent with Goal 7. Goal 8: Recreational Needs: The applicant offers the following response to this criterion in their submitted application materials: Exhibit B - Ordinance 2023-009 The proposed amendments are specifically intended to implement Goal 8, as described in the response to Deschutes County Comprehensive Plan Chapter 3, Resource Management, Section 3.9 Destination Resorts, Goal 1, above. Goal 8 is met. The text amendments do not propose to change the County's Plan or implementing regulations regarding recreational needs. Staff finds that the proposed amendments appear to be consistent with Goal 8. Goal 9: Economic Development: The applicant offers the following response to this criterion in their submitted application materials: Goal 9 is only applicable to urban areas and therefore is not applicable here. Port of St. Helens v. Land Conservation & Development Comm'n, 165 OrApp 487, 996 P2d 1014 (2000), rev den, 330 Or 363 (2000). 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. The proposed amendments apply to rural lands and do not propose to amend the Comprehensive Plan. Compliance is met. Goal 10: Housing: The applicant offers the following response to this criterion in their submitted application materials: Goal 10 is "to provide for the housing needs of citizens of the state" on "buildable lands for residential use." "Buildable lands" are defined in statute as "lands in urban and urbanizable areas that are suitable, available and necessary for residential uses." ORS 197.295(1). "Buildable Lands" are described in administrative rule as "residentially designated land within the urban growth boundary, including both vacant and developed land likely to be redeveloped, that is suitable, available and necessary for residential uses." OAR 660-008-0005(2). The proposed amendments largely do not affect lands in urban and urbanizable areas inside urban growth boundaries, making Goal 10 inapplicable to the majority of lands in the DRZ that the proposed amendments would affect. A small portion of lands inside the south and west portion of the City of Bend UGB, and in the north portion of the City of La Pine UGB, are also in the County's DRZ. To the extent that that these are "buildable lands for residential use" to which Goal 10 applies, the proposed amendments comply with Goal 10. The City of Bend, upon amending its UGB in 2016, adopted policies and Goal 10 findings into its comprehensive plan. One of those policies, at City of Bend Comprehensive Plan Policy 5-57 states that "Properties that are eligible for destination resort development will lose that eligibility upon inclusion into the UGB." Exhibit D (Chapter 5 of the Bend Comprehensive Plan, Housing). Therefore, any lands inside the City of Bend UGB are already ineligible for siting of destination resorts, and the proposed amendments do not affect the City's Goal 10 compliance. The proposed amendments also will not affect the City of La Pine's compliance with Goal 10, The La Pine comprehensive plan reports that, as of 2018, its UGB contains about "1284.4-acres of Exhibit B - Ordinance 2023-009 vacant or re -developable land to respond to a calculation of about 182 - acres of need." Exhibit E at 134-135 (La Pine Comprehensive Plan). The City's Goal 10 Housing policies and goals do not rely on destination resort development to meet the Goal. Additionally, ORS 197.445(7) requires a site of at least 20 acres for a destination resort, and the land zoned DRZ in the City of La Pine UGB is less than 20 acres. Goal 10 is met. Adverse impacts to residential housing in the County are not anticipated under these amendments and no such impacts have been identified in the record. The proposed amendments appear to be consistent with Goal 10. 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. Goal 12: Transportation: The applicant offers the following response to this criterion in their submitted application materials: By restricting certain residential uses in destination resorts within 24 air miles of the Bend UGB, the proposed amendments will reduce impacts to transportation facilities by lessening potential new trip generation in the rural county. This reduces the likelihood that transportation facilities could be significantly affected in Deschutes County. Goal 12 is met. 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. 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. Therefore, compliance with Goal 13 is established. Goal 14: Urbanization: The applicant offers the following response to this criterion in their submitted application materials: Goal 14 concerns the provision of urban and rural land uses to ensure efficient use of land and livable communities. The proposed amendments do not amend an urban growth boundary. Although Goal 8 allows urban land uses on rural land in destination resorts in certain circumstances, the proposed amendments are intended to ensure the DCC complies with Goal 8 and ORS 197.455, which limit the type of resort development that is allowed on certain lands near certain urban growth boundaries. The effect of the amendments will be to promote Goal 14's distinction between urban and rural levels of development, pursuant to Goal 8 and statute. Goal 14 is met. The proposed text amendments do not propose to change the County's Plan or implementing regulations regarding urbanization. Therefore, compliance with Goal 14 is established. Exhibit B - Ordinance 2023-009 Goals 15 through 19 are not applicable to the proposed text amendments because the County does not contain these types of lands. Deschutes County Comprehensive Plan Chapter 1 Comprehensive Planning: The applicant did not provide a direct response to this criterion in their submitted burden of proof. 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. Section 1.3 Land Use Planning Policies. The applicant did not provide a direct response to this criterion in their submitted burden of proof. 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 will review the proposed text amendments. Chapter 3 Resource Management Section 3.9 Destination Resorts Goals and Policies Goal 1: To provide for development of destination resorts in the County consistent with Statewide Planning Goal 8 in a manner that will be compatible with farm and forest uses existing rural development and in a manner that will maintain important natural features such as habitat or threatened or endangered species streams, rivers and significant wetlands. FINDING: The applicant offers the following response to this criterion in their submitted application materials: The proposed amendments are specifically intended to provide for the development of destination resorts in Deschutes County consistent with Goal 8. Exhibit C. Goal 8 includes the same language as ORS 197.455(1)(a): "Eligible Areas (1) Destination resorts allowed under the provisions of this goal must be sited on lands mapped as eligible by the affected county. A map adopted by a county may not allow destination resorts approved under the provisions of this goal to be sited in any of the following areas: (a) Within 24 air miles of an urban growth boundary with an existing population of 100,000 or more unless residential uses are limited to those necessary for the staff and management of the resort," Exhibit B - Ordinance 2023-009 The Oregon legislature in adopting ORS 197.455(1)(a), and LCDC in adopting Goal 8, have decided that resorts within 24 air miles of certain urban growth boundaries are limited to residential uses only necessary for staff and management of a resort. The proposed amendments would ensure that destination resorts on lands mapped as eligible by Deschutes County, but a resort that includes residential uses for people other than staff and management of a resort could not be sited within 24 air miles of the Bend urban growth boundary. Goal 2• To provide a process for the siting of destination resorts on rural lands that have been mapped by Deschutes County as eligible for this purpose. Goal 3• To provide for the siting of destination resort facilities that enhances and diversifies the recreational opportunities and economy of Deschutes County. FINDING: The applicant offers the following response to these goals in their submitted application materials: The proposed amendments will not change the existing process for siting of destination resorts described in these two goals. The amendments also will not change the map of lands determined to be eligible by Deschutes County. What will change is the type of destination resort that could be sited through the County's existing process, in order to comply with Goal 8 and ORS 197.455(1)(a). Consistent with state law, recreational facilities will still be allowed in destination resorts within 24 air miles of the Bend UGB, providing for continued enhancement and diversification of recreational opportunities. Goal 4• To provide for development of destination resorts consistent with Statewide Planning Goal 12 in a manner that will ensure the resorts are supported by adequate transportation facilities. FINDING: The applicant offers the following response to this goal in their submitted application materials: By restricting certain residential uses in destination resorts within 24 air miles of the Bend UGB, the proposed amendments will reduce impacts to transportation facilities by lessening potential new trip generation in the rural county. This reduces the likelihood that transportation facilities could be significantly affected in Deschutes County, consistent with Goal 12. Staff notes that there is no indication that the proposed amendments would result in adverse impacts to transportation facilities and no evidence in the record indicating the potential for such impacts. This goal appears to be met for the purposes of the subject application. Policy 3 9 1 • Destination resorts shall only be allowed within areas shown on the "Deschutes Count/ Destination Resort Map" and when the resort complies with the requirements of Goal 8, ORS 197.435 to 197.457 and Deschutes County Code 18.113. FINDING: The applicant offers the following response to this policy in their submitted application materials: Exhibit B - Ordinance 2023-009 Destination resorts will continue to only be allowed within areas shown on the "Deschutes County Destination Resort Map" The proposed changes to the DCC will ensure that any such resorts comply with the requirements of Goal 8 and ORS 197.435 to 197.457. Goal 8 and ORS 197.455(1)(a) include the language limiting destination resorts with 24 air miles of certain UGBs that this proposed code amendment would implement. Policy 3,92 Applications to amend the map will be collected and will be processed concurrently no sooner than 30 months from the date the map was previously adopted or amended. FINDING: The applicant offers the following response to this policy in their submitted application materials: The proposed amendments are not an application to amend the Deschutes County Destination Resort Map. This policy is inapplicable. Staff concurs that the subject application is for a legislative text amendment, and not for a Comprehensive Plan amendment. Policy 3.9.3: Mapping for destination resort siting a. To assure that resort development does not conflict with the objectives of other Statewide Planning Goals destination resorts shall pursuant to Goal 8 not be sited in Deschutes County in the following areas: 1) Within 24 air miles of an urban growth boundary with an existing population of 100,000 or more unless residential uses are limited to those necessary for the staff and management of the resort: FINDING: The applicant offers the following response to this policy in their submitted application materials: The proposed amendments are intended specifically to implement and conform the Deschutes County Code to this comprehensive plan section. Upon adoption of the proposed amendments, destination resorts shall, pursuant to Goal 8, not be sited in Deschutes County within 24 air miles of an urban growth boundary with an existing population of 100,000 or more unless residential uses are limited to those necessary for the staff and management of the resort. The proposed amendments comply with this policy. Oregon Revised Statute (ORS) 197.455 ORS 197.4550) A destination resort may be sited only on lands mapped as eligible for destination resort siting bX the affected county. The county may not allow destination resorts approved pursuant to ORS 197.435 (Definitions for ORS 197.435 to 197.467) to 197.467 (Conservation easement to protect resource site) to be sited in any of the following areas: (a) Within 24 air miles of an urban growth boundary with an existing population of 100,000 or more unless residential uses are limited to those necessary for the staff and management of the resort. Exhibit B - Ordinance 2023-009 FINDING: The applicant offers the following response in their submitted application materials: Similar to the response to Deschutes County Comprehensive Plan Policy 3.9.3, above, the proposed amendments are intended specifically to implement and conform the Deschutes County Code to this statute. Upon adoption of the proposed amendments, destination resorts may not be allowed to be sited in Deschutes County within 24 air miles of an urban growth boundary with an existing population of 100,000 or more unless residential uses are limited to those necessary for the staff and management of the resort. The proposed amendments comply with this statute. Staff concurs that the proposed amendment language is derived directly from ORS 197.455(1)(a) and would limit the residential uses allowed for newly -proposed destination resorts within 24 air miles of the City of Bend's Urban Growth Boundary. (b) (A) On a site with 50 or more contiguous acres of unique or prime farmland identified and mapped by the United States Natural Resources Conservation Service, or its predecessor agency. (B) On a site within three miles of a high value crop area unless the resort complies with the requirements of ORS 197.445 (6) in which case the resort may not be closer to a high value crop area than one-half mile for each 25 unites of overnight lodging or fraction thereof. (c) On predominantly Cubic Foot Site Class 1 or 2 forestlands as determined by the State Forestry Department which are not subject to an approved goal exception. (d) In the Columbia River Gorge National Scenic Area as defined by the Columbia River Gore National Scenic Act, P.L. 99-663. le In an especially sensitive big game habitat area: (A) As determined by the State Department of Fish and Wildlife in luly 1984, and in additional especially sensitive big game habitat areas designated by a county in an acknowledged comprehensive plan; or (B) If the State Fish and Wildlife Commission amends the 1984 determination with respect to an entire county and the county amends its comprehensive plan to reflect the commission's subsequent determination as designated in the acknowledged comprehensive plan. (fl On a site which the lands are predominantly classified as being in Fire Regime Condition Class 3 unless the county approves a wildfire protection plan that demonstrates the site can be developed without being at a high overall risk of fire. FINDING: The applicant offers the following response in their submitted application materials: The proposed amendments will not affect Deschutes County's compliance with the remaining sections of ORS 197.455(1), making these criteria inapplicable. ORS 197.455(2) In carrying out subsection (1) of this section a county shall adopt as part of its comprehensive plan, a map consisting of eligible lands within the county. The map must be based on reasonably available information and may be amended pursuant to ORS 197.610 (Submission of proposed comprehensive plan or land use regulation changes to Department of Land Conservation and Development) to 197.625 (Acknowledgment of comprehensive plan or land use regulation changes), but not more frequently than once every 30 months. The county shall develop a process for Exhibit B - Ordinance 2023-009 collecting and processing concurrently all map amendments made within a 30-month planning period A map adopted pursuant to this section shall be the sole basis for determining whether tracts of land are eligible for destination resort siting pursuant to ORS 197.435 (Definitions for ORS 197.435 to 197.467) to 197.467 (Conservation easement to protect resource site). FINDING: The applicant offers the following response in their submitted application materials: Deschutes County's existing map of lands eligible for destination resorts will not be amended as part of this application. This criterion is inapplicable. Staff concurs that the subject application is for a legislative text amendment, and not for a Comprehensive Plan amendment. Exhibit B - Ordinance 2023-009 c*o 2..a August 9, 2023 The Honorable Pete Buttigieg, Secretary US Department of Transportation 1200 New Jersey Avenue, SE Washington, DC 20590 RE: Support for COIC 2023 PROTECT Grant Application Dear Secretary Buttigieg, We are writing to strongly support Central Oregon Intergovernmental Council's (COIC) planning grant application through the PROTECT grant program to the U.S. Department (USODT). We commend USDOT's commitment to addressing the critical issue of surface transportation system resiliency in the face of natural hazards and climate change impacts. The proposed project aims to identify areas at highest risk of natural hazards and associated surface transportation disruptions, conduct detailed analyses for improving evacuation routes in the most vulnerable areas of the region, and conduct community and stakeholder outreach to assess needs and identify appropriate resources to support community members in evacuation planning and preparedness. By identifying the areas of greatest vulnerability in each County, our region will be able to mitigate disruption to our transportation system and move people more efficiently and safely. The community engagement piece of the proposed project will help us identify the tools needed to make our community members, and particularly our most vulnerable community members, as safe as possible. We support COIC's grant application and strongly encourage your funding support of this important work. Thank you for your consideration, The Deschutes County Board of Commissioners Anthony DeBone Patti Adair Phil Chang Chair Vice Chair Commissioner 1300 NW Wall Street Bend, Oregon 97703 (541) 388-6572 board@deschutes.org www.deschutes.org August 9, 2023 The Honorable Pete Buttigieg, Secretary US Department of Transportation 1200 New Jersey Avenue, SE Washington, DC 20590 RE: 2023 PROTECT GRANT— Central Oregon Priority Evacuation Area Study Dear Secretary Buttigieg, Please accept this letter of support from Crook County for COIC's application to the U.S. Department of Transportation (DOT) for planning grant funding through the PROTECT grant program for the Tri-County Evacuation Study. We commend USDOT's commitment to addressing the critical issue of surface transportation system resiliency in the face of natural hazards and climate change impacts. Crook County is committed to partnering with COIC should grant funds be awarded for this important project. By identifying the areas of greatest vulnerability in each County, our region will be able to mitigate disruption to our transportation system and move people more efficiently and safely. The community engagement piece of the proposed project will help us identify the tools needed to make our community members, and particularly our most vulnerable community members, as safe as possible. Within Crook County, we are experiencing more frequent flash flooding and wildfires due to drought conditions. This negatively impacts the transportation system as flash flooding washes damages county infrastructure and wildfires can limit access. For example, several years ago a wildfire closed Juniper Canyon Road, the only access to over 2,000 residents, blocking the only escape route that could have had devastating results. Fortunately, this did not occur, but it raised the awareness to a higher level of need for other accesses to the other for evacuation purposes. The commission's hope is the PROTECT grant will identify the need and propose alternative access with funding strategies for the Juniper Canyon area as well as identify other transportation areas susceptible to climate change. Crook County is dedicated to partnering with COIL in this critical work. Thank you for your consideration of COIC's application. it er rummer, Commissioner ian Barney, Commissioned JEFFERSON COUNTY BOARD OF COMMISSIONERS 66 S.E. "D" St., Suite A • Madras, Oregon 97741 • Ph: (541) 475-2449 • FAX: (541) 475-4454 August 9, 2023 The Honorable Pete Buttigieg, Secretary US Department of Transportation 1200 New Jersey Avenue, SE Washington, DC 20590 RE: 2023 PROTECT GRANT Dear Secretary Buttigieg, On behalf of Jefferson County, Oregon, we are writing this letter of commitment to strongly support COIC's application to the U.S. Department of Transportation (DOT) for planning grant funding through the PROTECT grant program. We commend USDOT's commitment to addressing the critical issue of surface transportation system resiliency in the face of natural hazards and climate change impacts. The proposed project aims to identify areas at highest risk of natural hazards and associated surface transportation disruptions, conduct detailed analyses for improving evacuation routes in the most vulnerable areas of the region, and conduct community and stakeholder outreach to assess needs and identify appropriate resources to support community members in evacuation planning and preparedness. Jefferson County is committed to partnering with COIC should grant funds be awarded for this important project. Through identifying focus areas, committing staff time to internal steering committees and convening relevant local stakeholders, and running evacuation scenarios and ETEs, Jefferson County looks forward to collaborating with COIC and other local jurisdictions in this important work. By identifying the areas of greatest vulnerability in each County, our region will be able to mitigate disruption to our transportation system and move people more efficiently and safely. The community engagement piece of the proposed project will help us identify the tools needed to make our community members, and particularly our most vulnerable community members, as safe as possible. A recent zone change and subdivision proposal in Crooked River Ranch, an unincorporated community of 2100+ homes, highlighted concerns of rural residents of the county who live in areas with high risk of wildfire. One of the primary issues raised in the public hearings for this development was the lack of an evacuation plan considering the limitations of the transportation infrastructure. This concern is not unique to Crooked River Ranch as there a number of other rural neighborhoods and individual residences located in areas of high fire risk throughout the county. Jefferson County views the Wayne Fording, Commissioner 0 Kelly Simmelink, Chair 0 Mark Wunsch, Commissioner PROTECT Grant as an opportunity to address these concerns through targeted wildfire preparation and evacuation planning. Jefferson County is dedicated to partnering with COIC in this critical work. Thank you for the opportunity to share our comments and for your consideration of COIC's application. Sincerely, Kelly Sim link, Chairman Wayne Fording, Commissioner • Kelly Simmelink, Chair 0 Mark Wunsch, Commissioner CITY OF BEND August 7, 2023 LOCATION I The Honorable Pete Buttigieg, Secretary 710 NW wall Street US Department of Transportation Downtown Bend 1200 New Jersey Avenue, SE Washington, DC 20590 MAILING ADDRESS PO Box 431 Bend, OR 97709 RE: 2023 PROTECT GRANT - Central Oregon Priority Evacuation Area Study PHONE Dear Secretary Buttigieg, (541) 388-5505 Relay Users Dial 7-1-1 On behalf of the City of Bend, I am writing this letter of commitment to strongly support COIC's application to the U.S. Department of Transportation FAX (DOT) for planning grant funding through the PROTECT grant program. (541) 385-6676 The Central Oregon Priority Evacuation Area Study aims to identify areas at WEB highest risk of natural hazards and associated surface transportation bendoregon.gov disruptions, conduct detailed analyses for improving evacuation routes in the most vulnerable areas of the region, and conduct community and stakeholder MAYOR Melanie Kebler outreach to assess needs and identify appropriate resources to support community members in evacuation planning and preparedness. MAYOR PRO TEM Megan Perkins The City of Bend is the largest community in the region, with a population of approximately 100,000, and receives roughly three million visitors annually. It CITY COUNCILORS is absolutely critical that the City is well positioned to move people safely and Anthony Broadman efficiently in the event of a disaster. According to the Deschutes County Multi - Barb Campbell Jurisdictional Natural Hazard Mitigation Plan (NHMP), the City is at elevated Ariel Mendez probability and vulnerability for wildfire, winter storm, windstorm, and flood Megan Norris Mike Riley events, all of which are further exacerbated by climate change. The Central Oregon Priority Evacuation Area Study directly advances mitigation actions CITY MANAGER prioritized within the NHMP. Eric King The City of Bend is dedicated to partnering with COIC in this critical work. Thank you for the opportunity to share our comments and for your consideration of COIC's application. Sincerely, Eric King, City Manager