2023-330-Order No. 2023-044 Recorded 10/20/2023REVIEWED
rV v
LEGAL COUNSEL
Recorded in Deschutes County CJ2023-330
Steve Dennison, County Clerk
Commissioners' Journal 10/20/2023 12:51:09 PM
2023-330
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Declining Review of Hearings
Officer's Decision in File No. 247-23-000249- * ORDER NO. 2023-044
MC.
WHEREAS, on September 13, 2023, the Hearings Officer issued a decision in File No. 247-
23-000249-MC denying an application for modification of conditions; and
WHEREAS, on September 25, 2023, Simmons Brothers, LLC, the Appellant, appealed
(Appeal No. 247-23-000704-A) the Deschutes County Hearings Officer's Decision on File No. 247-
23-000249-MC; 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 Officers' 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 not hear on appeal Appeal No. 247-23-000704-A pursuant to Title
22 of the DCC and/or other applicable provisions of the County land use ordinances.
Section 2. Pursuant to DCC 22.32.015, the County shall refund any portion of the appeal
fee not yet spent processing the subject application. If the matter is further appealed to the Land
Use Board of Appeals and the County is required to prepare a transcript of the hearing before the
Hearings Officer, the refund shall be further reduced by an amount equal to the cost incurred by
the County to prepare such a transcript.
Section 3. Pursuant to DCC 22.32.035(D), the only documents placed before and
considered by the Board are the notice of appeal, recommendations of staff, and the record
developed before the lower hearing body for File No. 247-23-000249-MC as presented at the
following website:
ORDER NO. 2023-044
httDs://www.desctiutes.org/cd/pagef247-23-00 Z413-mc-mod ification-conditions-247-21.000593-
fflPe594-cu-595-cu
DATED this 10 day of October 2023.
ATTEST:
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
ANTHONY DEBONE, Chair
PATTI ADAIR, Vice Chair
PHIL CHANG, Commissioner
ORDER NO. 2023-044
MEETING DATE:
October 18, 2023
SUBIECT: Consideration to hear a modification of a previously approved land use permit to
change the point of access
RECOMMENDED MOTION:
Move approval of Order No. 2023-044 accepting or declining to hear an appeal of the
Hearings Officer's decision on a modification of a previously approved land use permit to
change the point of access.
BACKGROUND AND POLICY IMPLICATIONS:
Staff referred the Modification of Conditions application to a public hearing, which was held
on July 12, 2023, before the Hearings Officer. On September 13, 2023, the Hearings Officer
issued a decision which denied the proposal (see Deschutes County Land Use File Nos. 247-
23-000249-MC, 23-704-A).
The applicant filed a timely appeal of the Hearings Officer's decision (reference appeal No.
247-23-000704-A) and requests that the application be reviewed by the Board of County
Commissioners.
BUDGET IMPACTS:
None
ATTENDANCE:
Dan DiMarzo, Assistant Planner
Jacob Ripper, Principal Planner
MEMORANDUM
TO: Board of County Commissioners
FROM: Dan DiMarzo, Assistant Planner
DATE: October 18, 2023
RE: Consideration to Hear - Deschutes County Land Use File Nos. 247-23-
000249-MC, 23-704-A: Modification of a previously -approved land use permit
to change the point of access.
On October 18, 2023, the Board of County Commissioners (Board) will consider whether to
hear an appeal of a Hearings Officer's decision (ref. File No. 247-23-000249-MC) denying an
application to modify a previously approved land use permit to change the point of access.
I. BACKGROUND AND PROCEDURAL HISTORY
The subject ± 242.49-acre property is not currently in farm use, nor does it possess any
irrigation rights. The property is currently developed with one (1) single-family dwelling and
several accessory structures, all located within its northern region. The subject property is
located ± 2 miles northeast of the City of Redmond, and is adjacent to the Crook County
line. The property's mailing address is 4180 NE O'Neil Way, and is further identified on
County Assessor's Map 14-13-25 as tax lot 1200. The subject property is zoned Exclusive
Farm Use - Terrebonne Subzone.
Through land use permit nos. 247-21-000593-MP, 594-CU, 595-CU, the applicant received
approval to divide the ± 242.49-acre parcel into three (3) parcels, and approval to establish
nonfarm dwellings on both Parcel #1 and Parcel #2. The existing single-family dwelling is
locatedonproposed Parcel #3. The approved parcel configuration is shown below:
1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
(541) 388-6575 @cdd@deschutes.org @ www.deschutes.org/cd
Figure 1 -- Approved Parcel/Access Configuration
" AREA OF INTEREST }
PROPOSED EI" y.. sposed Parcel 3
fi 220 27 ac
Proposed parcel 2
-24 a ; e
Proposed
Drainfield &
f i Repair Area
Proposed Parcel 1
Proposed Dwelling
Proposed � %
5
Drainfield &
Regan Area, Proposed Dwellang
s ' Proposed We';
Pas
i
R_ . _ _..,
�j
f 4 43
-n- +--
.r�
4
Proposed Drlvew:8: j I 100' Setbacks
v "
Proposed Access on
Existing Coyrier.Ave. ROW i
Source: Application materials, 247-21-000593-MP, 594-CU, 595-CU
The Applicant, Simmons Brothers, LLC, has requested a Modification of Conditions to this
previously approved land use permit (247-21-000593-MP, 594-CU, 595-CU). The
modification seeks to change the point of access to the nonfarm parcels from NE Coyner
Avenue to NE O'Neil Way (Highway 370). NE O'Neil Way is a state highway under the
jurisdiction of Oregon Department of Transportation (ODOT), functionally classified as
Principal Arterial. The partition originally approved under 247-21-000593-MP, 594-CU, 595-
CU granted access via NE Coyner Avenue, functionally classified as Rural Local. The
modification application also seeks to remove the permit's conditions of approval that
require road improvements and right of way dedication to NE Coyner Avenue.
Staff notes where it abuts the subject property, NE Coyner Avenue does not meet the
minimum local road standards given in Deschutes County Code (DCC) 17.48 Table A and
17.48.100, which would include a 20 ft.-wide aggregate -surfaced road centered within a 60
ft.-wide public right of way. The existing 30 ft.-wide public right of way exists south of the
subject property and was dedicated with the Lake Park Estates subdivision plat (shown
below, Figure 2). The Road Department has considered the need to improve NE Coyner
2
Avenue along the south frontage of the subjer", property and has determined that approval
of the proposed partition should not be subject to read surface improvernent requirements
along the entire south frontage. Instead, dedicaticn of an additional 30 ft. of public right of
way and the minimum standard gravel roads improved only to the point of access for the
new parcels should be required to provide the full 60 ft. right of way required under DCC
17.48.100 and 17.48 Table A. In the case of potential approval to use O'Neil Highway as the
modified point of access, the Road Department determined that dedications of the
additional 30 ft. of public right of way should still be required, but not road improvements,
to comply with DCC 17.48.100 and 17.48 Table A to provide for any future installation of
utility facilities or road improvements.
Figure 2 - NE Coyner Avenue Dedication (Lake Park Estates)
Subdivision Plat 30'
Right of Way
Dedication
I
G
N
N
S
A®.
330.0
5
L' 4B0
Z804 °
329.99
335 3.2'
Source: Lake Park Estates Subdivision Plat Map
For clarity, the requested modifications are summarized below:
1. Allow new access from NE O'Neil Way that would serve the driveways to the two
new nonfarm parcels;
n
13
N
19
3
2. Remove any conditions of approval which r`c,uit e d :dicadon of private property
to public right of way along NE Coyner Avenue;
3. Remove any conditions of approval which require road improvements to NE
Coyner Avenue.
The proposed access requested in the Modification of Conditions application is shown
below:
osed New Access
Source: Application materials, 247-23-000249-MC1
1 Staff notes the discrepancy between the acreage calculations between Figure 1 & Figure 3. The subject modification
application does not propose to re -configure the approved nonfarm parcels. For the purposes of the subject modification
application, the configuration of the parcels shall remain the same, as approved through land use file nos. 247-21-000593-
MP, S94-CU, 595-CU (Figure 1).
11
A relevant timeline of events is desc.r bed below:
October 3, 2021
Land use approval became final (247-21-000593-MP, 594-CU, 595-CU).
December 12, 2022
Application submittal to ODOT for State Highway Approach.
January 30, 2023
ODOT Staff Report; Findings of Fact.
February 23, 2023
ODOT approval letter which approved new access from the property to NE
O'Neil Way.
February 27, 2023
Revised ODOT approval letter which conditionally approved new access
from the property to NE O'Neil Way; conditional on local land use approval
April 4, 2023
Modification of Conditions application submittal (247-23-000249-MC)
September 13, 2023
Hearings Officer decision (denial)
Staff referred the Modification of Conditions application to a public hearing and
recommended denial based on comments from the County Transportation Planner, and
the County Road Department. A public hearing before a Hearings Officer was held on July
12, 2023. The Hearings Officer issued a denial on September 13, 2023. The Applicant filed a
timely appeal of the Hearings Officer's denial on September 25, 2023.
II. DECISION
The Deschutes County Hearings Officer rendered a decision to deny the applicant's request
to modify the point of access for the nonfarm parcels and to remove the conditions of
approval requiring right-of-way dedication and road improvements to NE Coyner Avenue
on the grounds that:
• NE O'Neil Way's status as an Arterial is a settled matter.
• DCC 17.48.210(B) - copied below - is applicable to the proposal; therefore, access
from NE O'Neil Way is prohibited.
Section 17.48.210 Access
B. Access Restrictions and Limitations. The creation of access onto arterials
and collectors is prohibited unless there is no other possible means of
5
accessir,al the ,--jrcei. /n r;ny event, residential access onto arterials and
collectors slxrp'l rjot be perriitted within 1,00reet of an intersection or the
maxir-mim ohStonce obtainable on the parcel, whichever is less.
• The conditions of approval related to NE Coyner Avenue improvements and right of
way dedication are both rationally related and have a rough proportionality to the
impact of the approved proposal.
• ODOT's conditional approval does not prevent the County from applying its land use
regulations.
III. APPEAL
APPLICANT/PROPERTY OWNER
The Applicant (Simmons Brothers, LLC) submitted a timely appeal of the Hearings Officer's
Decision on September 25, 2023. The Applicant requests the Board accept review and
conduct a hearing to review and make a decision based the following issues:
• The Hearings Officer's interpretation and application of DCC 17.48.210(B)
• ODOT's conditional approval of access to/from NE O'Neil Way
• Whether the right-of-way dedication and road improvement conditions of approval
related to NE CoynerAvenue are rationally related, and roughly proportionate, to the
impacts of the proposed partition.
The Applicant requests de novo review.
IV. BOARD OPTIONS
In determining whether to hear the appeal, the Board may consider only:
1. The record developed before the Hearings Officer;
2. The notice of appeal; and
3. Recommendation of staff2
If the Board decides to hear the appeal, it must direct whether the appeal will be considered
de novo, or limited de novo. The Board also may consider providing time limits for public
testimony, if it decides to hear the appeal.
2 Deschutes County Code 22.32.035(D)
2
Staff has attached three alternative versions o; Order No. 20123-044 to this memo; one to
hear the appeal de novo, one to hear the appeal ,'imit-ed de nova, and one to decline to hear
the appeal.
Reasons to hear
The Board may wish to accept review of the application on appeal so that its Code
interpretations may be accorded deference by the Land Use Board of Appeals (LUBA) if the
matter is further appealed. Unlike a Hearings Officer decision, a Board decision that is
based on interpretation of the County Code is entitled to local deference. Moreover, the
Board may want to reinforce or revisit some the Hearings Officer's findings/interpretations
in what would then become the final decision of the County.. Further, beyond the subject
application, the Board may want to interpret DCC 17.48.210(B), the application of which has
County -wide implications. related to the safety of the traveling public. Staff notes that they
received no public comments - neither in support nor opposition - during the Hearings
Officer review process.
If the Board chooses to hear this matter, the appellant requests the Board conduct a de
novo hearing. Under Deschutes County Code 22.32.027(B)(2), the Board may grant an
appellant's request to hear a matter de novo after considering the factors of DCC
22.32.027(B)(2)(a-d). If the Board chooses to hear this matter, Staff includes considerations
for the Board below on limited de novo vs. de novo.
Reasons to hear de novo:
• This allows the Board to consider any relevant issue not related to the reason for
denial and may allow new evidence and testimony on any applicable criteria as it
sees appropriate.
• Any scope of review exercised by the Board (de novo or limited de novo) will provide
an opportunity for the Board to make a final decision on interpretation of local
criteria to which LUBA may defer.
• The applicant has requested de novo proceedings.
Reasons to hear limited de novo:
• The Hearings Officer found that the applicability of DCC 17.48.210(B) prohibited
approval for the change of access onto NE O'Neil Way. A limited de novo hearing
would allow the Board to consider new evidence and testimony that would be
focused solely on this decision point.
• Limited de novo review may focus the Board's attention on the Code interpretation
issue on which it may be accorded deference by LUBA.
Reasons not to hear
7
The Board may determine that the Hearings Officer's Decision is consistent with its
interpretation of DCC 17.48.210(B) and is supported, by the record, if the decision is
appealed to LUBA. In addition, the Board may take note that the applicant was
represented by a land use attorney.
If the Board decides the Hearings Officer's Decision shall be the final decision of the county,
then the Board shall not hear the appeal and the party appealing may continue the appeal
as provided by law. The decision on the land use application and associated appeals
becomes final upon the mailing of the Board's decision to decline review.
V. 150-DAY LAND USE CLOCK
The applicant has requested a 150-day extension of the land use clock. The 150t" day on
which the County must take final action on this application is March 20, 2024.
VI. RECORD
The record for File No. 247-23-000249-MC and the Notice of Appeal for Appeal No. 247-23-
000704-A are as presented at the following Deschutes County Community Development
Department website:
https://www.deschutes.org/cd/page/247-23-000249-mc-modification-conditions-247-21-000593-
mp-594-cu-595-cu
Attachments:
1. DRAFT Board Order 2023-044 Accepting Review of the Hearings Officer's Decision (de novo)
2. DRAFT Board Order 2023-044 Accepting Review of the Hearings Officer's Decision (limited de
novo)
3. DRAFT Board Order 2023-044 Declining Review of the Hearings Officer's Decision
4. Notice of Appeal (Appeal No. 247-23-000704-A)
5. Hearing's Officer Decision (File No. 247-23-000249-MC)
6. Deschutes County Code 17.48.210
LEGAL COUNSEL
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Accepting Review of Hearings
Officer's Decision in File No. 247-23-000249- * ORDER NO. 2023-044
M C.
WHEREAS, on September 13, 2023, the Hearings Officer issued a decision in File No. 247-
23-000249-MC denying an application for modification of conditions; and
WHEREAS, on September 25, 2023, Simmons Brothers, LLC, the Appellant, appealed
(Appeal No. 247-23-000704-A) the Deschutes County Hearings Officer's Decision on File No. 247-
23-000249-MC; 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. 247-23-000704-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 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. 2023-044
developed before the lower hearings body for File No. 247-23-000249-MC as presented at the
following website:
htt -s://www.deschutes.org/cd/page/2.47-23-000249-mc-modificatiori-conditions-247.21-000593-
mp-594-cu-595-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 day of October 2023.
ATTEST:
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
ANTHONY DEBONE, Chair
PATTI ADAIR, Vice Chair
PHIL CHANG, Commissioner
ORDER No. 2023-044
REVIEWED
LEGAL COUNSEL
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Accepting Review of Hearings
Officer's Decision in File No. 247-23-000249- * ORDER NO. 2023-044
MC.
WHEREAS, on September 13, 2023, the Hearings Officer issued a decision in File No. 247-
23-000249-MC denying an application for modification of conditions; and
WHEREAS, on September 25, 2023, Simmons Brothers, LLC, the Appellant, appealed
(Appeal No. 247-23-000704-A) the Deschutes County Hearings Officer's Decision on File No. 247-
23-000249-MC; 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. 247-23-000704-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. 2023-044
developed before the lower hearings body for File No. 24.7-2.3-000249-MC as presented at the
following website:
https://www.deschutes.org/cd/pa-e/247-23-000249-mc-modification-conditions-247-21-000593-
mp-594-cu-595-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 day of October 2023.
ATTEST:
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
ANTHONY DEBONE, Chair
PATTI ADAIR, Vice Chair
PHIL CHANG, Commissioner
ORDER NO.2023-044
APPEAL APPLICATION — BOARD OF COUNTY COMMISSIONERS
FE:3Igq
EVERY NOTICE OF APPEAL SHALL INCLUDE:
1. A statement describing the specific reasons for the appeal.
2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board
stating the reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a
request for de novo review by the Board, stating the reasons the Board should provide the de
novo review as provided in Section 22.32.027 of Title 22.
4. if color exhibits are submitted, black and white copies with captions or shading delineating
the color areas shall also be provided.
it is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the
County Code. The Notice of Appeal on the reverse side of this form must include the items listed above.
Failure to complete all of the above may render an appeal invalid. Any additional comments should be
included on the Notice of Appeal.
Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC
Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning
those issues.
Appellant's Name (print): Simmons Brothers LLC _ _ Phone: C57A 316-1 88
Mailing Address: 139 NW Third Street City/State/Zip: _ PrLntevitle (>_ll �:L75_i____
Email Address: _Lisa @FitchandNeary.com _
Land Use Application Being Appealed: 247-23-000249-MC
Property Description: Township 14 Range 13 _ Section 25 _—_ Tax Lot _1 200 _
�ta�rlf�r'tir'Nos __
Appellant's Signature .:,-�. ,,�::..>:; _Date: Sep 22 �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
recording copy). Appellant shall submit the transcript to the planning division no later than the close of
117 NW Lafayette Avenue, Be rid, Oregon 97703 l P.O. Box 6005, Bend, OP 97708-6005
Q(541)388-6575 @cdd@)deschutes.org 0www.deschutes.org,-cd
F I T C H& N E A R Y Lisa Andrach
lisadfitchandnear�u.com
P.C.
LAND USE AUTHORIZATION FORM
For: Deschutes County Community Development
Re: Map and Tax Lot: 1413250001200 (Account # 128367)
Situs Address: 4180 NE O'Neil Way, Redmond, Oregon 97756
Let it be known that the firm of Fitch & Neary PC has been retained to act as my authorized agent to
perform all acts for development on my property noted above. These acts include: Pre -application
conference, filing applications, and/or other required documents relative to all Permit applications.,
modifications, appeal, extension.
Property Owner: Simmons Brothers LLC
Hank Simmons
Hank Simmons
Signature: ff&L &LhLH hs
Hank Simmons (Sep 21, 2023 10:50 PDT)
Email: simmonsrealty@yahoo.com
Sep 21, 2023
date
210 SW Vi St., Ste. #2 j Redmond OR 97756
Phone: 541.316.1588 1 Fax: 541.316.1943
NOTICE OF APPEAL
TO DESCHUTES COUNTY BOARD OF COMMISSIONERS
FILE NUMBER:
APPLICANT/OWNER:
APPLICANT'S ATTORNEY:
247-23-000249-MC (Hearings Officer)
Simmons Brothers, LLC
139 NW Third Street
Prineville OR 97754
P: 541-447-5638
Lisa Andrach
Fitch & Neary, P.C.
210 SW 5`h St., Ste. 42
Redmond OR 97756
P: 541-316-1588
Email: lisakfl(chandneary. com
Appeal of hearings officer decision denying modification of conditions to previously approved
land use submittal (247-21-000593-MP, 594-CU,595-CU) to modify the point of access to a
location approved by ODOT (NE O'Neil Way).
I. APPLICABLE CRITERIA
22.32.010 Who May Appeal
A. The following may file an appeal:
1. A party
FINDING: The appellant is the applicant in Deschutes County File No. 247-23-000249-MC that
is the subject of this appeal. This criterion is satisfied.
22.32.015 Filinli Appeals
1. To file an appeal, an appellant must file a completed notice of appeal on a form
prescribed by the Planning Division and an appeal fee.
2. Unless a request for reconsideration has been filed, the notice of appeal and appeal
fee must be received at the offices of the Deschutes County Community Development
Department no later than 4:00 PM on the twelfth day following mailing of the
decision. If a decision has been modified on reconsideration, an appeal must be filed
no later than 4:00 PM on the twelfth day following mailing of the decision as modified.
Notices of Appeals may not be received by facsimile machine.
Page I — NOTICE OF APPEAL — 247-23-000249-MC (SIMMONS BROTHERS FITCH & NEARV, P.C.
r i rn N 210 SW 511' St., Suite 2
Phone: 541-316-1588
Fax: 541-316-1943
3. If the Board of County Commissioners is the Hearings Body and the Board declines
review, a portion of the appeal fee may be refunded. The amount of any refund will
depend upon the actual costs incurred by the County in reviewing the appeal. When
the Board declines review and the decision is subsequently appealed to LUBA, the
appeal fee may be applied toward the cost of preparing a transcript of the lower
Hearings Body's decision.
4. The appeal fee shall be paid by method that is acceptable to Deschutes County.
FINDING: The appellant has filed herewith the required notice of appeal on the prescribed form,
and the appeal fee, within the 12 days from the date of mailing of the decision. This criterion is
met.
22.32.020 Notice Of Anneal
Every notice of appeal shall include:
A. A statement raising any issue relied upon for appeal with sufficient specificity
to afford the Hearings Body an adequate opportunity to respond to and resolve each issue in
dispute.
FINDING: The appellant appeals the hearings officer's decision denying the modification
application pursuant to DCC 22.36.040(C) based upon a finding that the proposed modification
does not comply with applicable criteria of Title 17.
The appellant requests review on the following issues:
1. The decision is in error in its application of DCC 17.48.210(B) to deny the
application. The hearings officer's interpretation of DCC 17.48 is not binding on the Board of
Commissioners, which, as the legislative body of the county, is charged with interpreting the
county code. As set forth in the decision, it appears that the interpretation of DCC 17.48.210 is a
matter if first impression for the Board. Appellant submits that the decision erred in more than
one way in finding that DCC 17.48.210(B) prohibits the use of the state highway access (O'Neil
Way). The Board must determine whether DCC 17.48.210, which regulates "Access" for
partitions, applies here when:
A. The proposed access is from a state highway within the jurisdiction of
ODOT, and the access permit is reviewed, approved, and issued by ODOT;
B. If it does apply, does DCC 17.48.210(B) prohibit the use of a state arterial
for access even if ODOT has determined that the access point from the arterial is approved
because it passed the state's rigorous safety and operational review criteria and other
hurdles to approval; and
Page 2 — NOTICE OF APPEAL — 247-23-000249-MC (SIMMONS BROTHERS FITCH & NEARY, P.C.
210 SW 511' St., Suite 2
Redmond, OR 97756
Phone: 541-316-1588
Fax: 541-316-1943
C. If DCC 17,48.210(B) does trump any such access simply because NE
O'Neil Way is an "arterial" as used in DCC 17.48.210(B), even though approved by
ODOT, does the exception in DCC 17.48.210(13) to allow the use of the arterial when
there is no other possible means of accessing the parcel apply here.
2. The Hearings Officer's decision overlooked evidence in the record and
misinterpreted and misapplied the applicable law and misunderstood the appellant's arguments
below as it applied to the balance of Title 17. DCC 22.36.040(C) requires that an application to
modify a decision be directed to one or more discrete aspects of the approval. In compliance with
this criterion, the applicant addressed the fact that if the O'Neil Way access is approved on
modification, the partition would not use NE Coyner Ave for any purpose, and if NE Coyner
Ave is not used for any purpose, then the applicable criteria and corresponding conditions of
approval in the original decision that required dedication of right of way and development
requirements to establish NE Coyner Ave are negated. The modification sought removal of the
conditions of approval requiring the dedication of right of way and development of NE Coyner
Ave because these conditions of approval would no longer be required to satisfy any applicable
criteria — because the criteria to which they relate no longer apply.
In addition, the hearings officer identified a few particular criteria that he thought might
be applicable, albeit in dicta, but his comments on those criteria were in error because those
criteria were addressed in the initial decision, the substantial evidence in the record, and/or the
findings on those criterion in the original decision were not being disturbed by the modification.
Specifically:
DCC 17.22.020(A)(3) — The hearings officer questioned whether Ne O'Neil Way
is a "road dedicated to the public." However, the record made clear that O'Neil Way (Highway
370) is a state highway, it is owned by the state and governed within the jurisdiction of ODOT,
and as set forth in the original decision addressing this criterion, it is a "roadway dedicated to the
public." This issue was addressed and satisfied and was not an issue subject to modification.
DCC 17.22.020(A)(2) — The hearings officer wondered if there are public access
easements that conflict with the proposal. However, as addressed in the record, there are no
public access easements that exist or that are in conflict with the proposed partition and/or new
access point. The original decision addressed this criterion and found that there were no public
access easements to which the proposed partition would be in conflict and that there were no
public access easements within the property. ODOT found that the proposed access did not
conflict with any nearby public access intersections or O'Neil Way. There is substantial evidence
in the record on this issue and the criterion was satisfied. The applicant did not request a
modification to this criterion pertaining to public access easements.
DCC 17.36.100 — The hearings officer wondered whether a frontage road is
required. However, here, neither ODOT nor the County Road Department mentioned or required
Page 3 — NOTICE OF APPEAL — 247-23-000249-MC (SIMMONS BROTHERS FITCH & NEARY, P.C.
210 SW 511' St., Suite 2
Phone: 541-316-1588
Fax: 541-316-1943
any frontage road for O'Neil Way with the proposed modified access point on O'Neil Way.
Neither authority required a condition of approval to establish a frontage road along O'Neil Way.
On modification, the application addressed that the frontage dedication for NE Coyner Ave
would no longer be applicable because there was no impact to NE Coyner because there is no
use of NE Coyner with the modified access point. There was no requirement for a frontage road
triggered by the modification to the access point and this criterion was satisfied.
B. If the Board of County Commissioners is the Hearings Body, a request for
review by the Board stating the reasons why the Board should review the lower Hearings
Body's decision.
FINDING: The appeal seeks an interpretation of the Deschutes County Code 17.48.210(B),
concerning when it applies, and what does "possible" mean as used in the code. These appear to
be issues of first impression for the Board of Commissioners. The applicant's rights are
substantially prejudiced by the hearings officer's decision in this matter if the applicant cannot use
an ODOT approved access point simply because it is an "arterial" as used in Code. The other issues
outlined above were raised by the hearings officer in dicta as possible applicable criteria that
needed to be addressed, but the decision was in error in that the issues were either addressed in the
record, the prior decision, or were not applicable to the modification.
C. 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 why the
Board should provide de novo review as provided in DCC 22.32.030.
FINDING: The applicant requests de novo review of this issue because it appears to be an issue
of first impression for the Board of Commissioners, and because the hardship imposed on the
applicant if the applicant cannot use the ODOT approved access but must dedicate nearly a mile
of right of way (and remove all of his personal property within that 30' area to be dedicated) and
improve a road that even ODOT's experienced engineer said is not reasonable to use, when the
road is a dead end at the NUID canal and serves no other property or public purpose or benefit.
The road would only serve the 2 new non -farm dwellings and nothing more. The result is a huge
exaction of real property and financial investment from the applicant when there is another safe,
ODOT approved, reasonable and available option. The only improvement to the NE O'Neil Way
access is a driveway apron.
The Board of Commissioners, as the legislative body of the county, is the only body that can issue
a binding interpretation of the county code. Here it is necessary for de novo review so that the
Board has an opportunity to fully and properly evaluate the issues on review which are of first
impression. The Board's application and interpretation of DCC 17.48.210(B) is important enough
and the stakes are extremely high for the applicant all which further warrant the Board addressing
the issues raised de novo.
Page 4 — NOTICE OF APPEAL — 247-23-000249-MC (SIMMONS BROTHERS FITCH & NEARY, P.C.
LLC.) 210 SW 51h St., Suite 2
Redmond, OR 97756
Phone: 541-316-1588
Fax: 541-316-1943
2.32.024 'Transcript Requirement
1. Except as otherwise provided in DCC 22.32.024, appellants shall provide a complete
transcript of any hearing appealed from, from recorded magnetic tapes provided by
the Planning Division.
2. Appellants shall submit to the Planning Division the transcript no later than the close
of the day five days prior to the date set for a de novo appeal hearing or, in on -the -
record appeals, the date set for receipt of written arguments. Unless excused under
DCC 22.32.024, an appellant's failure to provide a transcript shall cause the Board to
decline to consider the appellant's appeal further and shall, upon notice mailed to the
parties, cause the lower Hearings Body's decision to become final.
3. An appellant shall be excused from providing a complete transcript if appellant was
prevented from complying by: (1) the inability of the Planning Division to supply
appellant with a magnetic tape or tapes of the prior proceeding; or (2) defects on the
magnetic tape or tapes of the prior proceeding that make it not reasonably possible
for applicant to supply a transcript. Appellants shall comply to the maximum extent
reasonably and practicably possible.
4. Notwithstanding any other provisions in DCC 22.32, the appeal hearings body may,
at any time, waive the requirement that the appellant provide a complete transcript
for the appeal hearing.
FINDING: The appellant agrees to the transcript requirements imposed by this criterion.
22.32.027 Scope Of Review
1. Before Hearings Officer or Planning Commission. The review on appeal before the Hearings
Officer or Planning Commission shall be de novo.
2. Before the Board.
1. Review before the Board, if accepted, shall be on the record except as otherwise
provided for in DCC 22.32.027.
2. The Board may grant an appellant's request for a de novo review at its discretion
after consideration of the following factors:
1. Whether hearing the application de novo could cause the 150-day time limit
to be exceeded; and
2. If the magnetic tape of the hearing below, or a portion thereof, is unavailable
due to a malfunctioning of the recording device during that hearing, whether
review on the record would be hampered by the absence of a transcript of all
or a portion of the hearing below; or
3. Whether the substantial rights of the parties would be significantly prejudiced
without de novo review and it does not appear that the request is necessitated
by failure of the appellant to present evidence that was available at the time
of the previous review; or
Page 5 — NOTICE OF APPEAL — 247-23-000249-MC (SIMMONS BROTHERS FITCH & NEARY, P.C.
210 SW 5"' St., Suite 2
Phone: 541-316-1588
Fax: 541-316-1943
4. Whether in its sole judgment a de novo hearing is necessary to fully and
properly evaluate a significant policy issue relevant to the proposed land use
action.
For the purposes of DCC 22.32.027, if an applicant is an appellant, factor DCC
22.32.027(B)(2)(a) shall not weigh against the appellant's request if the applicant has
submitted with its notice of appeal written consent on a form approved by the County
to restart the 150-day time clock as of the date of the acceptance of applicant's appeal.
FINDING:
1. The applicant is the appellant, and the 150-day clock is near expiration. Therefore, the
applicant / appellant hereby agrees to restart the clock to allow time for the appeal as set forth
above.
2. The substantial rights of the applicant are prejudiced by the decision on review. Here, the
State ODOT has reviewed and approved for use an alternate access for two non -farm dwellings,
but the decision on review has rejected the use of that access and requires that the applicant make
a substantial dedication of real property to create a new road, and then make a substantial
investment financially to improve the new road just to access the same two dwellings. The decision
is not based upon any health, life, safety issues — but merely an interpretation of the county code.
3. Notwithstanding DCC 22.32.027(B)(2), the Board may decide on its own to hear a
timely filed appeal de novo.
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.
FINDING: The appellant requests that the Board limit the issues on appeal to those listed in
appellant's notice of aptpeeaal.
DATED this M ✓ ' day of September 2023.
FffH & NEAAX_ PC
�-- LISA ANDRACH, OSB #040012
Of Attorneys for Appellant / Applicant below
210 SW 5t1' St, Suite 2
Redmond, OR 97756
P: 541.316.1588 F: 541.316.1943
Email: lisa(j�fitchandnearyxom
Page 6 — NOTICE OF APPEAL — 247-23-000249-MC (SIMMONS BROTHERS FITCH & NEARY, P.C.
Redmond, OR 97756
Phone: 541-316-1588
Fax: 541-316-1943
From:
To:
Subject: FW: Appeal of 247-23-00249-Mr Apu Materials
Date, Monday, September 25, 2023 4:39:15 PM
Attachments: Appeal filed 9.25.23.rr
image002.Dnq
image003.0ng
image004.0ng
image005&W
Hi Tracy,
App materials for 247-23-000704-A
Thanks,
.1ES C Ben Wilson I Assistant Planner
Deschutes County Community Development
117 NW Lafayette Ave I Bend, Oregon 97703
Tel: (541) 385-17131 Mail: PO Box 6005, Bend, OR 97708
tPUM
Let us know how we're doing: Customer Feedback Survey
Disclaimer. Please note that the information in this email is an informal statement made in accordance with DCC 22.20,005 and
shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any
rights, including any reliance rights, on any person.
From: Lisa Andrach <lisa@fitchandneary.com>
Sent: Monday, September 25, 2023 2:17 PM
To: CDD Planning <planning@deschutes.org>
Cc: simmonsrealty@yahoo.com; Craig & Cathy Kilpatrick <ckrimrock@yahoo.com>; Linda Nichols
<Lnda@fitchandneary.com>
Subject: Appeal of 247-23-00249-MC
[EXTERNAL EMAIL]
Attached please find the appeal documents for an appeal to the Board of Commissions of the
hearings officer decision in 247-23-00249-MC.
When the invoice is ready, please send me the information to pay the filing fee.
Thank you.
Lisa Andrach, Attorney
•
Fitch and Neary, PC
210 SW 5th St, Suite 2
Redmond, OR 97756
Ph: 541-316-1588
Fax: 541-316-1943
www.fitchandneary.com
CONFIDENTIALITY NOTICE: This email transmission, and any documents, files or previous email
messages attached to it, may contain confidential information that is legally privileged. If you are
not the intended recipient or a person responsible for delivering it to the intended recipient, you are
hereby notified that any disclosure, copying, distribution or use of any of the information contained
in or attached to this message is STRICTLY PROHIBITED. If you have received this transmission in
error, please notify us by reply at infoPfitchandneary.com or by telephone at 541 316-1588, and
destroy the original transmission and its attachments without reading them or saving them to a disk.
Mailing Date:
Thursday, September 14, 2023
DECISION AND FINDINGS OF
THE DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBER:
HEARING DATE:
HEARING LOCATION:
APPLICANT/OWNER:
SUBJECT PROPERTY:
247-23-000249-MC
July 12, 2023
Videoconference and
Barnes & Sawyer Rooms
Deschutes Services Center
1300 NW Wall Street
Bend, OR 97708
Simmons Brothers, LLC
Map and Tax Lot:
1413250001200
Situs Addresses:
4180 NE Oneil Way
Redmond, OR 97756
REQUEST: The Applicant requests a modification of conditions to a
previously -approved land use permit (247-21-000593-MP, 594-
CU, 595-CU) to change the point of access from NE Coyner
Avenue to NE Oneil Way.
HEARINGS OFFICER: Tommy A. Brooks
SUMMARY OF DECISION: This Decision concludes that the Applicant has not met its burden
of demonstrating the requested modification satisifies the applicable
criteria and, therefore, DENIES the Application.
I. STANDARDS AND CRITERIA
Deschutes County Code (DCC)
Title 17, Subdivisions
Chapter 17.22, Approval of Tentative Plans for Partitions
Chapter 17.36, Design Standards
Chapter 17.48, Design and Construction Specifications
Title 22, Deschutes County Development Procedures Ordinance
Chapter 22.36, Limitations on Approvals
Page I 1
II. BACKGROUND AND PROCEDURAL FINDINGS
A. Nature of Proceeding
This matter comes before the Hearings Officer as a request to modify the conditions of approval of a prior
land use action on the Subject Property.
In September 2021, through Casefiles 247-21-000593-MP, 594-CU, and 595-CU (together, the "2021
Minor Partition"), the County approved a Minor Partition to divide the Subject Property into three parcels,
together with conditional use permits authorizing the establishment of a nonfarm dwelling on each of two
of the new parcels ("New Dwelling Parcels").
The 2021 Minor Partition contemplates that access from the New Dwelling Parcels will be via NE Coyner
Avenue, an undeveloped right-of-way that runs along the south side of the Subject Property. Relatedly,
the 2021 Minor Partition includes conditions of approval requiring the applicant to design and construct
road improvements on NE Coyner Avenue, and to dedicate additional right-of-way along NE Coyner
Avenue, to meet certain road standards.
After the County's approval of the 2021 Minor Partition, the Applicant sought approval from the Oregon
Department of Transportation ("ODOT") to allow access from the New Dwelling Parcels to NE O'Neil
Way/Highway 370 ("O'Neil Way"). ODOT initially approved an approach permit for that purpose on
February 23, 2023. ODOT re -issued its approval for the Applicant's requested access on February 27,
2023. ODOT's second approval was styled as a "Conditional Approval" and was conditioned on ODOT's
receipt of land use approval from the County.
As described by the Applicant, the purpose of the Application is to modify the approved access for the
New Dwelling Parcels (i.e., from NE Coyner Avenue to O'Neil Way), and to remove the conditions of
approval in the 2021 Minor Partition relating to the right-of-way dedication and improvements to NE
Coyner Avenue, since that right-of-way would no longer be used for access. As set forth in the Applicant's
initial Application materials, the Applicant specifically requests the removal of Condition numbers 8, 9,
12, 15, 16, 17, 18, and 20 from the 2021 Minor Partition.
B. Application, Notices, Hearin
The initial Application was submitted on April 4, 2023. Staff in the County's Community Development
Department ("Staff") deemed the Application complete on May 4, 2023.
On June 14, 2023, Staff mailed a Notice of Public Hearing ("Hearing Notice"). The Hearing Notice was
also published in the Bend Bulletin on June 16, 2023.
Pursuant to the Hearing Notice, I presided over the Hearing as the Hearings Officer on July 12, 2023,
opening the Hearing at 6:00 p.m. The Hearing was held in person and via videoconference, with the
Hearings Officer appearing remotely. At the beginning of the Hearing, I provided an overview of the
quasi-judicial process and instructed participants to direct comments to the approval criteria and standards,
and to raise any issues a participant wanted to preserve for appeal if necessary. I stated I had no ex parte
Page 12
contacts to disclose or bias to declare. I invited but received no objections to the County's jurisdiction
over the matter or to my participation as the Hearings Officer.
The Hearing concluded at approximately 7:21 p.m. Prior to the conclusion of the Hearing, and at the
Applicant's request, I announced that the written record would remain open as follows: (1) any participant
could submit additional materials until July 19, 2023 ("Open Record Period"); (2) any participant could
submit rebuttal materials (evidence or argument) until July 26, 2023 ("Rebuttal Period"); and (3) the
Applicant could submit a final legal argument, but no additional evidence, until August 2, 2023, at which
time the record would close. Staff provided further instruction to participants, noting that all post -Hearing
submittals needed to be received by the County by 4:00 p.m. on the applicable due date. No participant
objected to the post -hearing procedures.
C. Review Period
Using May 4, 2023, as the date of completeness for the Application, the deadline within which the County
must make a final decision under ORS 215.427 — "the 150-day clock" — was initially October 1, 2023.
Pursuant to DCC 22.24.140(E), a continuance or record extension is subject to the 150-day clock, unless
the Applicant requests or otherwise agrees to the extension. Here, the Applicant requested and agreed to
a 21-day extension of the record. Under the Code, therefore, the additional 21 days the record was left
open do not count toward the 150-day clock. Adding that time period to the original deadline, the new
deadline for the County to make a final decision is October 22, 2023.
III. SUBSTANTIVE FINDINGS AND CONCLUSIONS
The Application requests a Modification of Approval pursuant to DCC 22.36.040. The approval the
Applicant seeks to modify is the 2021 Minor Partition. The specific modification the Applicant seeks to
make to the 2021 Minor Partition is the portion of that decision establishing the location that the New
Dwelling Parcels will use to take access to a public road.
As presented to the Hearings Officer, the requested Modification of Approval would revise the approved
site plan by establishing an access point on O'Neil Way. Such an access point already exists for "Parcel
3" and ODOT's conditional approval would allow a new access point to O'Neil Way farther west where
it would be accessed by the New Dwelling Parcels. If the location of the road access is approved, the
Applicant also requests the removal of the conditions of approval in the 2021 Minor Partition that require
additional right-of-way dedication and improvements on NE Coyner Avenue.
1. Compliance with DCC 22.36.040
The standards for a Modification of Approval are set forth in DCC 22.36.040:
A. An applicant may apply to modify an approval at any time after a period of six
months has elapsed from the time a land use action approval has become final.
The Applicant seeks to modify the 2021 Minor Partition, which the County approved on or about
September 21, 2021. The requested modification is therefore more than six months after that decision
Page 13
became final. No participant in this proceeding has cha-llenged the timing of the Application. Based on the
foregoing, I find that this Code provision is satisfied.
B. Unless otherwise specified in a particular zoning ordinance provision, the
grounds for filing a modification shall be that a change of circumstances since
the issuance of the approval makes it desirable to make changes to the proposal,
as approved. A modification shall not be filed as a substitute for an appeal or
to apply for a substantially new proposal or one that would have significant
additional impacts on surrounding properties.
A Modification of Approval requires a showing of a change in circumstances that makes it desirable to
make changes to the prior approval. The "change in circumstances" the Applicant describes for purposes
of this Code provision is that a new access is now available and conditionally approved by ODOT. The
Applicant asserts that it is desirable to change the point of access because the change "only requires access
improvements in lieu of NE Coyner right-of-way dedication and road improvements," and that the
"expense to the applicant to take access via NE Coyner is considerably more than to take access from
O'Neil Hwy."
During the Hearing, I raised the question whether the source of the change in circumstances matters for
purposes of applying this Code provision. On the one hand, the language of the Code refers only to "a
change in circumstances." On the other hand, not all changes in circumstances can be used for purposes
of obtaining a Modification of Approval. For example, if the resulting modification is "filed as a substitute
for an appeal", the modification would not be allowed under the Code. The source of the change in
circumstances, therefore, could be relevant in a particular situation to determine the intent and purpose of
the modification. In response to my questions, the Applicant submitted to the record several past decisions
where the County approved modifications of prior approvals, some of which appear to be based on
changes in circumstances created by the applicant in those matters, and some of which appear to be based
on changes that were outside of the applicant's control. It is not clear, however, if those prior decisions
addressed the source of the change in circumstances.
Some comments in the record do question whether this Code provision is satisfied, but those comments
address whether the proposed modification is a substitute for an appeal of the 2021 Minor Partition. No
participant appears to directly challenge the Applicant's assertion that there has been a change in
circumstances, or the Applicant's assertion that such a change in circumstances makes it desirable to snake
changes to the original approval. Nor do I read those opposing comments as making an express connection
between the Applicant's role in creating the change in the circumstances and the allegation that the request
is being used as a substitute for an appeal. In the absence of a clear interpretation of this Code provision
by the County's Board of Commissioners, and in the absence of a counter argument regarding the change
in circumstances the Applicant relies on, I find that, based on this record, the Applicant has established
that a change of circumstances since the issuance of the 2021 Minor Partition makes it desirable to make
changes to that approval.
The primary comment in the record challenging the Applicant's ability to satisfy this Code requirement is
a memo from the County's Senior Transportation Planner. That memo asserts that the 2021 Minor
Partition is a final, unappealable decision and that the "County cannot now consider an application that
Page 14
requires a determination that the access and conditions related thereto in the original, unappealed approval
should be changed." That assertion, however, runs counter to the language in DCC 22.36.040, which
expressly allows an applicant to seek a change in the conditions of a prior approval, and which allows
such a change only if it has been more than six months since the approval became final. if the interpretation
the Senior Transportation Planner offers were correct, no modification to a prior approval would ever be
allowed and DCC 22.36.040 would serve no purpose.
The question before the Hearings Officer with respect to this Code provision is whether the requested
modification is a "substitute" for an appeal. The Applicant makes multiple statements in the record
expressing dissatisfaction with the 2021 Minor Partition, particularly with regard to the improvements
required on NE Coyner Avenue. For example, the Applicant asserts that its original proposal was for the
New Dwelling Parcels to take access via 33r`r Street, but that the County misunderstood that request and,
on its own, required access via NE Coyner Avenue. Even so, dissatisfaction with the outcome of a decision
does not mean that any requested modification rises to the level of a substitute for an appeal. As the
Applicant notes, the analysis might turn out differently if the Applicant were seeking to re -instate
something the County previously denied. For example, if the Applicant had originally proposed access
via O'Neil Way, and if the County had rejected that portion of the proposal, it would be more likely viewed
as a substitute for an appeal if the Applicant then sought a Modification of Approval allowing the O'Neil
Way access anyway. But that is not the case here, as the Applicant never proposed access to O'Neil Way
and is proposing that access now only in light of the change in circumstances consisting of ODOT's
conditional approval. Based on these considerations and the evidence in this record, I find that the
Applicant is not using the Modification of Approval as a substitute for an appeal by proposing access to
O'Neil Way.
The final element of this Code provision is that the Application cannot be a substantially new proposal or
one that would have significant additional impacts on surrounding properties. The Applicant addresses
this criterion and notes that the fundamental proposal in the 2021 Minor Partition — three new parcels and
the ability to build two nonfarm dwellings — remains unchanged and has the same general impacts. No
participant in this proceeding asserts that the Application proposes a substantially new proposal or that
there is any difference in actual impacts from the proposal. In light of the Applicant's unchallenged
assertions, I find that the proposal in the Application does not result in a substantially new proposal or one
that would have significant additional impacts on surrounding properties.
In summary, I find that DCC 22.36.040(B) is satisfied.
Page 15
C. An application to modify an approval shall be directed to one o;- more discrete
aspects of the approval, the modification of which would not amount to
approval of a substantially new proposal or one that would have significant
additional impacts on surrounding properties. Any proposed modification, as
defined in DCC 22.36.040, shall be reviewed only under the criteria applicable
to that particular aspect of the proposal. Proposals that would modify an
approval in a scope greater than allowable as a modification shall be treated
as an application for a new proposal.
The Applicant seeks to modify only those aspects of the 2021 Minor Partition that relate to the point of
access for the Subject Property, including the New Dwelling Parcels. I find that the requested
modifications are discrete aspects of that prior approval and, therefore, within the scope of a modification
allowed by this Code provision.
The first half of this Code provision repeats some of the same requirements set forth in DCC 22.36.040(B)
and requires that the modification not comprise a substantially new proposal or otherwise have significant
additional impacts on surrounding properties. Those standards are addressed in the previous findings and
are incorporated here. For the same reasons set forth in those findings, I find that this portion of DCC
22.36.040(C) is satisfied.
The second half of this Code provision requires a review of the modification "under the criteria applicable
to the particular aspect of the proposal." Whether the Applicant has met its burden to demonstrate that the
requested modification satisfied the applicable criteria is addressed in more detail in the findings below.
Those findings conclude that the Applicant has not met its burden.
D. An application for a modification shall be handled as a land use action.
The Application is being processed as a land use action, and no participant in this proceeding objects to
that approach. Based on the foregoing, I find that this Code provision is satisfied.
2. Compliance with Criteria Applicable to the Requested Modification
As noted in the findings above, DCC 22.36.040(C) states in part that a requested modification "shall be
reviewed only under the criteria applicable to that particular aspect of the proposal". The criteria applicable
to the original approval are set forth in DCC Title 17. The proposal in the Application must therefore
comply with any of those criteria applicable to the modification being proposed.
While the Applicant responds to comments in the Staff Report and argues certain Code provisions
identified by Staff do not apply to the requested modification — primarily DCC 17.48.210(B) — I am unable
to discern from the Applicant's initial materials, supplemental materials, or post -hearing materials which
criteria from the 2021 Minor Partition are applicable to the modification sought in the present Application.
Nor does there appear to be any statement from the Applicant that there are no criteria to apply. In the
absence of any evidence or argument from the Applicant regarding which criteria do apply to the requested
modification, I am unable to review "the criteria applicable to that particular aspect of the proposal" as
required by DCC 22.36.040(C). On that basis, I find that the Applicant has not met its burden of
Page 16
demonstrating that the Application complies with DCC 22.36.040(C). Additionally, the findings below
address criteria that do apply, or that may apply, and which I find are either not addressed by the
Application or not satisfied by the proposal.
A review of the 2021 Minor Partition indicates that there may be multiple criteria that apply to the
requested modification. DCC 17.22.020(A)(3) appears to be the primary criterion applicable to the
modification and requires a partition to be accessed by roads dedicated to the public. There is no
affirmative statement in any of the materials in the record regarding that Code provision, but that criterion
appears to be met here. It is less clear whether other criteria are applicable and, if so, whether the proposed
modification satisfies those criteria.
DCC 17.22.020(A)(2), for example, requires that the proposal in a partition not conflict with existing
public access easements within or adjacent to the partition. That criterion was deemed satisfied in the 2021
Minor Partition's findings, but I am unable to determine from the record before me if the change in access
to the New Dwelling Parcels would yield the same result, as there is no indication of what, if any, public
access easements exist, much less whether the new access point would conflict with those easements.
DCC 17.36.100 relates to frontage roads and imposes certain requirements when a land division abuts an
existing arterial. The 2021 Minor Partition found that O'Neil Way is an arterial. That decision also
concluded that the improvements required along NE Coyner Avenue were sufficient for purposes of this
Code provision and that, as such, no additional improvements on O'Neil Way would be required. The
Applicant now proposes to modify the 2021 Minor Partition in a manner that would not require the
improvements on NE Coyner Avenue, but the Applicant does not address what effect that change has on
the improvements otherwise required by DCC 17.36.100 and if improvements on O'Neil Way are now
necessary to meet this Code provision.
DCC 17.48.210 relates to access to the partition. The Staff Report identifies this Code provision as
applicable to the requested modification. Specifically, the Staff Report asserts the modification is not
allowed under DCC 17.48.210(B), which states that the "creation of access onto arterials and collectors is
prohibited unless there is no other possible means of accessing the parcel...". The Applicant disagrees
with the Staff Report and presents several arguments that DCC 17.48.210(B) is not applicable.
One argument the Applicant presents in its final submittal is O'Neil Way is not an arterial and, therefore,
DCC 17.48.210(B) does not prohibit the new access the Applicant proposes. As just noted, however, the
fact that O'Neil Way is an arterial was established in the 2021 Minor Partition. The Applicant has
confirmed — for example in its Supplemental Burden of Proof — that it "is not challenging the prior decision
was procedurally or substantively incorrect". I therefore find that the status of O'Neil Way as an arterial
is a settled matter.
The other argument the Applicant makes is that DCC 17.48.210(B) does not apply to ODOT-controlled
rights -of -way and, instead, applies only to limit new access onto arterials and collectors within the
County's ,jurisdiction. This argument is based on the County's conclusion that DCC 17.48.210(A) — which
requires a permit from the County for any new access onto a public right-of-way — does not apply to an
ODOT right-of-way. According to the Applicant, if subsection (A) of this Code provision does not apply
to ODOT roads, then subsection (B) cannot not apply.
Page 17
No participant in this proceeding has presented any evidence regarding how the County's Board of
Commissioners interprets this Code provision. In the absence of such an interpretation, I must address the
plain language of the Code. That plain language states simply that the "creation of access onto arterials
and collectors is prohibited" absent certain exceptions. The record indicates that both County -controlled
and ODOT-controlled roads may be classified as "arterials" under the County's regulations. This portion
of the Code, however, does not qualify "arterials" and limit its application only to County -controlled
arterials. Rather, it applies to all arterials. Nor does this Code provision contain any language that ties
subsection (B) to subsection (A). In other words, the language of subsection (B) stands on its own, and
the prohibition on new access onto arterials can apply whether or not a permit is required under subsection
(A). Testimony from ODOT during the Hearing stated that ODOT would honor any County regulations
that are more restrictive than State regulations, even if ODOT could otherwise issue its own permit.
Indeed, this seems to be the purpose of ODOT's conditional approval of the access point, which required
the Applicant to obtain land use approval from the County.
The final argument the Applicant makes is that, even if DCC 17.48.210(B) applies in general, the
exception in that Code provision applies because "there is no other possible means of accessing the
parcel". The Applicant asserts that no other access is possible because the County already rejected access
to 33rd Street in the 2021 Minor Partition, and that the approved access to NE Coyner Avenue "is
prohibitive rendering it not possible". However, the possibility of using NE Coyner Avenue as access was
affirmatively established in the 2021 Minor Partition. Again, the Applicant has acknowledged that it is
not challenging the substance of the 2021 Minor Partition. To the extent the Applicant is asserting that the
2021 Minor Partition was wrong, or that it otherwise approved an access that is "not possible", that is not
an argument the Applicant can raise in this proceeding. To do so would be to attack the substance of the
prior decision and convert the requested modification into a substitute for an appeal of that decision.
Based on the foregoing, I find that DCC 17.48.210(B) is applicable, that it prohibits the Applicant from
creating an access on O'Neil Way, and that the requested modification is therefore not allowed under the
criteria applicable to the proposal.'
I The Applicant's materials assert that denial of the Applicant's request would be an unconstitutional taking of the
Applicant's private property in the form of an improper exaction. During the Hearing, the Applicant confirmed that its
takings argument applied only if the County approved the new access onto O'Neil Way and also required improvements to
NE Coyner Avenue even though that road would no longer be how the New Dwelling Parcels accessed a public road. If that
were the case, I would tend to agree, and the County would be required to show that the improvements to NE Coyner Avenue
were both rationally related to the Applicant's proposal and had a rough proportionality to the impact of the Applicant's
proposal. There would seem to be little connection between NE Coyner Avenue improvements and the Subject Property's use
of O'Neil Way. But this decision does not result in such an outcome and, because the modification is being denied, the
improvements to NE Coyner Avenue required by the 2021 Minor Partition remain applicable. Again, to the extent the
Applicant is objecting to the improvements the County required in the 2021 Minor Partition, that is not an issue that can be
challenged now in this Modification of Approval proceeding.
Despite the Applicant's clarification during the Hearing, the Applicant's post -Hearing submittals assert that denying the
Application based on DCC 17.48.210(B) constitutes a taking per se, because the Applicant would be denied use of an access
permit approved by ODOT. ODOT's access permit, however, was conditioned on the Applicant obtaining land use approval
from the County. The Applicant has not described what vested right or other property interest it has in ODOT's conditional
approval that prevents the County from applying its land use regulations or otherwise absolves the Applicant from having to
satisfy the criteria in those regulations.
Page 18
IV. CONCLUSION
Based on the foregoing findings, I find that the Applicant has not met its burden with respect to the
applicable standards for a Modification of Approval. The Application is therefore DENIED.
Dated this 131" day of September 2023
Tommy A. Brooks
Deschutes County Hearings Officer
Page 19
10/11 /23, 10:29 AM
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17.48.210 Access
A. Permit Required. Access onto public right of way or change in type of access shall require a
permit. Permits are applied for at offices of the Community Development Department.
B. Access Restrictions and Limitations. The creation of access onto arterials and collectors is
prohibited unless there is no other possible means of accessing the parcel. In any event,
residential access onto arterials and collectors shall not be permitted within 100 feet of an
intersection or the maximum distance obtainable on the parcel, whichever is less.
C. Commercial and Industrial Access.
1. Requirements for commercial and industrial access will be determined by the Road
Department Director in accordance with DCC 17.48.090.
2. Safety improvements, including left turn lanes and traffic signals, may be required.
D. Sight Distance. Access shall be denied at locations that do not meet AASHTO sight distance
standards.
HISTORY
Adopted by Ord. 81-043 §1, Exhibit A, §8.400(1)-(4) on 1213111981
Amended by Ord. 93-012 §53(A) on 81411993
Amended by Ord. 2001-016 §1 on 312812001
https://deschutescounty.municipaIcodeonline.com/book/print?type=ordinances&name=17.48.210_Access 1/1