2001-633-Ordinance No. 2001-031 Recorded 8/8/2001REVIEWED0�AS TO FORM WEAS .....
ED
Code Review V YY
Committee
��,�, �rA� rniinlSEL r ��
BEFORE THE BOARD OF COUNT CHUTES COUNTY, OREGON
An Ordinance Amending Title 19, the Bend
Urban Area Zoning Map, Changing the * 0
Zone Designation from SM to UAR-10
On Certain Property in the Bend Urban Area
And Declaring an Emergency.
ORDINANCE NO. 2001-031
WHEREAS, Shevlin Heights Acquisitions LLC has proposed a Zone Change to Title 19, Bend "
Urban Area Zoning Map, to rezone certain property from SM, Surface Mining, to UAR-10, Urban Area
Reserve; and
WHEREAS, the Deschutes County Hearings Officer, after review conducted in accordance with
applicable law, approved the proposed change to the Bend Urban Area Zoning Map; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON,
ORDAINS as follows:
Section 1. AMENDMENT. Pursuant to Chapter 19.08 of Title 19 of the Deschutes County
Code, the Bend Urban Area Zoning Map, is hereby amended to change the zone designation for the
subject property, described as tax lot 500 in Section 17 of Township 11 South, Range 26 East,
Willamette Meridian, and as further described by the legal description attached hereto as Exhibit "A"
and the map set forth as Exhibit "B," both of which exhibits are incorporated herein by reference, from
Surface Mining (SM) to Urban Area Reserve (UAR-10).
Section 2. FINDINGS. The Board adopts as its findings in support of this decision the
Deschutes County Hearings Officer's decision, attached as Exhibit "C" and incorporated herein by this
reference, in support of its decision to rezone the subject property.
Section 3. EMERGENCY. This Ordinance being necessary for the immediate preservation
of the public peace, health and safety, an emergency is declared to exist, and this Ordinance takes effect
on its passageZ--day
DATED this of August, 2001.
BOARD OF COUNTY COMMISSIONERS OF
DESCHUTES COUNTY, OREGON
Tom DeWol hair
ATTEST: a2is
R. Luke, Commissioner
Recording Secretary Mic ael IMI. Daly, ommi Toner
DESCHUTES COUNTY OFFICIAL RECORDS
MARY SUE PENHOLLOW, PAGE 1 OF 1 - ORDINANCE NO. 2001-031 (08/01/01) COMMISSIONERS - JOURNAL 08/08/200101:03:00
CLERK C 20
08148/14Q 1 011: Q3 ; :00 00 PM PM
EXHIBIT "A"
LEGAL DESCRIPTION
The Southeast Quarter of the Southeast Quarter (SE1/4 SE1/4) of Section Twenty-six
(26), Township Seventeen (17) South, Range Eleven (11) East of the Willamette
Meridian, Deschutes County, Oregon.
EXHIBIT "A" TO ORDINANCE NO. 2001-031 (08/01/01)
EXHIBIT "B"
00500
Subject Site: 17-11-26-500
Zone Change from Surface Mine (SM)
to Urban Area Reserve (UAR10)
Exhibit "B" to Ordinance 2001-031
Q Taxlots
N Bend City Limits
ZONING
Proposed Zone Change
(� Surface Mining
Urban Area Reserve -10 Acre Minimum
Bend Residential - High Density
Bend Residential - Medium Density
Bend Residential - Standard Density
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June 20, 2001
N:\C USTOM\COUNTY\CDD\PLANNING\CATHVT\1711280000500\ZONECHANGE.APR
Memo
To: Board of CountyAs''r
sioners
From: Catharine Tiltonto Planner (ext. 6719; email: cathyt@deschutes.org)
CC: Kevin Harrison
Date: 8/1/2001
Re: An Ordinance Amending Title 19, the Bend Urban Area Zoning Map, Changing
the Zone Designation from Surface Mining (SM) to Urban Area Reserve (UAR-
10) on Property Located Southwest of Shevlin Park Road and Mt. Washington
Drive.
Attached is Ordinance 2001-031, which proposes to amend Title 19, the Bend Urban
Area Zoning Map, by changing the zone designation from Surface Mining (SM) to Urban
Area Reserve (UAR-10) on property located southwest of Shevlin Park Road and Mt.
Washington Drive. The action requested of the Board is to adopt and sign the ordinance to
effectuate the zone change.
The applicant, Shevlin Heights Acquisitions, LLC, proposed a zone change from SM
to UAR-10 to develop the property with a four -lot planned unit development (PUD). The
Hearings Officer approved the zone change on May 30, 2001 (along with the Conditional Use
and Tentative Plat applications for the PUD). The decision was not appealed and
subsequently finaled on June 12, 2001. Per section 22.28.030(8), DCC, the hearings
officer's decision is final and no further testimony or public hearing on the matter is required
by the Board. To effectuate the zone change, the Board must adopt an ordinance changing
the zone designation on the map.
Staff will attend the Board's Monday, August 6, 2001 work session to discuss this
matter with you and answer any questions you may have. Please feel free to call, email, or
come by and visit if you have any questions before Monday, August 6, 2001.
Attachments:
• Ordinance No. 2001-031 with exhibits A (legal description) and B (map of zone change)
• Decision of Deschutes County Hearings Officer on file numbers: ZC-00-5, TP -00-916,
CU -00-112.
DECISION OF DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBERS: ZC-00-5, TP -00-916, CU -00-112
APPLICANT/ (C,JJ,gl'
`�
PROPERTY OWNER: Shevlin Heights Acquisitions LLC 175 N.W. 15 StreetBend, Oregon 97701 EQATTORNEY: Liz FancherpFS644 N.W. Broadway StreetBend, Oregon 97701
Attorney for Applicant -- -
PROPOSAL: The applicant is requesting approval of a zone change from SM to
UAR-10, and conditional use and tentative plan approval, to
develop the subject property with a four -lot PUD to be called
"Anderson Acres."
STAFF REVIEWER: Catharine Tilton, Associate Planner
HEARING DATE: Tuesday, March 6, 2001
RECORD CLOSED: March 27, 2001
L APPLICABLE STANDARDS & CRITERIA:
A. Title 17 of the Deschutes County Code, the Subdivision/Partition Ordinance
1. Chapter 17.16, Approval of Subdivision Tentative Plans and Master
Development Plans
* Section 17.16.100, Required Findings for Approval
* Section 17.16.105, Access to Subdivisions
2. Chapter 17.36, Design Standards
* Section 17.36.020, Streets
* Section 17.36.040, Existing Streets
* Section 17.36.050, Continuation of Streets
* Section 17.36.060, Minimum Right of Way and Roadway Width
* Section 17.36.080, Future Extension of Streets
* Section 17.36.120, Street Names
* Section 17.36.130, Sidewalks
* Section 17.36.140, Bicycle, Pedestrian and Transit Requirements
* Section 17.36.160, Easements
* Section 17.36.180, Frontage
* Section 17.36.210, Solar Access Performance
Shevlin Heights LLC
ZC-00-5/CU-00-112/TP-00-916
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Exhibit C
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* Section 17.36.220, Underground Facilities
* Section 17.36.250, Lighting
* Section 17.36.260, Fire Hazards
* Section 17.36.280, Water and Sewer Lines
3. Chapter 17.44, Park Development
* Section 17.44.010, Dedication of Land
4. Chapter 17.48, Design and Construction Specifications
" Section 17.48.090, Intersections
* Section 17.48.100, Minimum Right of Way Width
* Section 17.48.130, Road Names
* Section 17.48.140, Bikeways
* Section 17.48.160, Road Development Requirements -Standards
* Section 17.48.180, Private Roads
B. Title 19 of the Deschutes County Code, the Bend Urban Area Zoning Ordinance
1. Chapter 19.04, Title, Purpose, Compliance and Definitions
* Section 19.04.025, Bend Unincorporated Urban Area
* Section 19.04.661, Definition — Lot of Record
2. Chapter 19.12, Urban Area Reserve (UAR 10) Zone
* Section 19.12.010, Purpose
* Section 19.12.030, Conditional Use
* Section 19.12.040, Height Regulations
* Section 19.12.050 Lot Requirements
3. Chapter 19.100, Conditional Use Permits
* Section 19.100.030, General Conditional Use Criteria
4. Chapter 19.104, Planned Unit Development Approval
* Section 19.104.010, Purpose
* Section 19.104.040, Minimum Size for Planned Unit Developments
* Section 19.104.050, Limitation on Application
* Section 19.104.060, Plan Required
* Section 19.104.070, Standards for Approval
* Section 19.104.080, Standards and Requirements
5. Chapter 19.116, Amendment, Appeals, and Procedures
Shevlin Heights LLC
ZC-00-5/CU-00-112/TP-00-916 Exhibit de
2. Page j9_ of -417 L -
Ordinance Qdd 1�3
•
* Section 19.116.010, Amendments
* Section 19.116.020, Standards for Zone Change
D. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.20, Review of Land Use Action Applications
* Section 22.20.040, Final Action in Land Use Actions
E. Oregon Revised Statutes
1. Chapter 92, Subdivisions and Partitions
* ORS 92.177, Creation of Lot or Parcel Following Improper Formation
2. Chapter 215, County Planning, Zoning, Housing Codes
* ORS 215.427, Final Action on Permit or Zone Change Application
Required Within 120 or 150 Days; Exceptions; Refund of Application Fees
F. Oregon Administrative Rules, Chapter 660, Division 12, Transportation Planning
1. OAR 660-012-060, Plan and Land Use Regulation Amendments
IL FINDINGS OF FACT:
A. Location: The subject property is located approximately 900 feet southwest of Shevlin
Park Road and Mt. Washington Drive and abuts the western Bend city limits. It is further
identified as Tax Lot 500 on Deschutes County Assessor's Map 17-11-26.
B. Zoning and Plan Designation: The subject property is zoned Surface Mining (SM) and
is designated Urban Area Reserve on the Bend Urban Area General Plan Map.
C. Surrounding Zoning and Land Uses: The subject property is surrounded by seven tax
lots. To the east are Tax Lots 502 and 600 on Map 17-11-25. They are located within
Bend's city limits and are designated and zoned Urban Standard Density Residential
(RS). In December, 2000, the City of Bend (hereafter "city") approved a tentative plan
for 94 -acre residential. subdivision to be called "Shevlin Meadows" on these tax lots (city
file 99-316). To the northeast is Tax Lot 500. It also is located within the city limits and
is designated and zoned RS. The record indicates an application for tentative subdivision
plan approval for the proposed "Westside. Meadows" residential subdivision on this tax
lot is pending before the city. To the north is Tax Lot 106 on Map 17-11-26. This tax lot
is located within the city limits, is designated Urban Reserve, is zoned UAR-10 and is
vacant. To the west and south are Tax Lot 400 on Map 17-11-25 and Tax Lot 6000 on
Map 17-11. These tax lots are in common ownership, total 330 acres, are located outside
the city limits, and are designated Urban Reserve and zoned UAR-10:
D. Site Description: The subject property is approximately 40 acres in size, square in shape
and vacant. It abuts the city limits and Urban Growth Boundary (UGB) on its eastern and
Shevlin Heights LLC
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northern property lines. The southeastern portion of the property has been cleared of
vegetation, excavated and mined for pumice. The western half of the property slopes
upward to the west and has a vegetative cover of pine and juniper trees and native brush.
E. Procedural History: The subject application was submitted on October 3, 2000. By
letter dated October 31, 2000, staff notified the applicant that the application was
incomplete, identified missing information, and allowed the applicant through November
30, 2000, to submit additional information. Most of the missing information was
submitted on November 30,.2000, and the county accepted the application as complete on
that date. Therefore, the 150 -day period for issuance of a final county decision under
ORS 215.427 would have expired on April 29, 2001.
A public hearing on the application was held on March 6, 2001. At the hearing, the
Hearings Officer received testimony and evidence, left the written evidentiary record
open through March 20, 2001, and allowed the applicant through March 27, 2001, to
submit final argument pursuant to ORS 197.763. The applicant agreed to toll the running
of the 150 -day period during the 21 days allowed for submission of post -hearing
evidence and argument. Therefore, the 150 -day period expired on May 21, 2001.1
F. Proposal: The applicant is requesting a zone change from Surface Mining (SM) to Urban
Area Reserve (UAR-10), conditional use approval and subdivision tentative plan
approval to develop the subject property with a four -lot residential PUD to be called
"Anderson Acres." The four lots, ranging in size from two to nearly four acres and
totaling approximately 11 acres, would be clustered together along the western and
northern property lines. The remaining approximately 28 acres would be common area
and private road. The applicant proposes to incorporate into the open space the part of the
subject property that was excavated and mined for pumice.
The applicant proposes to provide access to the PUD lots from a private road improved
with a 28 -foot -wide paved surface, 4 -foot striped bike lanes on each side and gravel
' The Hearings Officer finds it is unclear whether the 150 -day period under ORS 215.427 applies to the
subject zone change application. ORS 197.015 defines "land use regulation" to include a zoning
ordinance. The applicant requests approval of a zoning map amendment, changing the zoning of the
property from SM to UAR-10. Section 19.08.030(B) of Title 19 provides:
The signed copy of said Zoning Map is maintained on file in the office of the County
Clerk and hereby made a part of DCC 19. Any revisions or replacement of said
map, when duly entered, signed and filed with the County Recorder as authorized
by DCC 19.08.030(C), are a part of this title. (Emphasis added.)
Thus, the zoning map is part of the zoning ordinance -- i.e., part of the county's land use regulations — and
consequently an amendment to the zoning map constitutes an amendment to a land use regulation. The
record indicates notice of the proposed zone change was sent to the Department of Land Conservation and
Development (DLCD). As such, the exception to the 150 -day rule in ORS 215.427(6) for amendments to
"an acknowledged . .. land use regulation ... that was forwarded to" DLCD apparently applies.
However, Section 22.20.040(D) of the county's procedures ordinance does not exempt zoning ordinance
amendments from the 150 -day period. Therefore, it could be argued the county's 150 -day provision is
stricter than state law because it requires a final zone change decision within 150 days, and consequently
the county's provision controls over the statute. The Hearings Officer finds I need not resolve this issue in
this decision.
Shevlin Heights LLC Exhibit
i Z C-00-5/CU-00-112PrP-00-916 Pager of
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Ordinance -
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shoulders that would provide a pedestrian pathway. Initially, the applicant proposed to
terminate the private road in a cul-de-sac near the western property boundary. However,
in response to comments from county staff; the applicant submitted a revised tentative
plan dated February 12, 2001, that shows the PUD street "stubbed" at the western
property boundary dust beyond the proposed cul-de-sac. The applicant proposes to
connect the private road at the property's eastern boundary to "C" Drive, a public street
to be developed as part of the adjacent Shevlin Meadows Subdivision. The record
indicates the applicant's principal, Dave Swisher, also is a principal in the company that
is developing this subdivision. This public street connects with Shevlin Park Road, a
designated minor arterial. Sewage treatment would be provided by individual on-site
septic systems, and domestic water would be provided by individual wells or a shared
well. The applicant proposes to provide fire protection either through a contract with the
Bend Fire Department or through annexation to the Bend Rural Fire Protection District
#2.
G. Public/Private Agency Comments: The Planning Division mailed notice of the
applicant's proposal to several public and private agencies and received responses from:
the Deschutes County Road Department (road department), Transportation Planner,
Property Address Coordinator, and Environmental Health Division; the Oregon Health
Division; the City of Bend Planning Department and Fire Department; and the Bend -La
Pine School District. These comments are set forth verbatim at pages 4-14 of the Staff
Report. The following agencies either did not respond to the county's notice or had no
comment: the Deschutes County Assessor; the Tumalo Irrigation District; Avion Water
Company; Bend Cable Communications; Bend Metropolitan Parks and Recreation
District; Pacific Power and Light; and the Oregon Departments of Fish and Wildlife,
Geology and Mineral Industries, and Water Resources.
H. Public Notice and Comments: The Planning Division mailed individual written notice
of the applications and the public hearing to the owners of record of all property located
within 250 feet of the subject property and the adjacent Tax Lots 500, 502 and 600 on
Assessor's Map 17-11-25-600. The record indicates notice was mailed to 24 property
owners. In addition, notice of the public hearing was published in the. "Bend Bulletin"
newspaper, and the subject property was posted with a notice of proposed land use action
sign. As of the date the record in this matter closed, the county had received one letter
from the public in response to these notices. No members of the public testified at the
public hearing.
III. CONCLUSIONS OF LAW:
LOT OF RECORD
A. Title 19 of the Deschutes County Code, the Bend Urban Area Zoning Ordinance
1. Chapter 19.04, Title, Purpose, Compliance and Definitions
a. Section 19.04.661, Definition — Lot of Record
A. "Lot of record" means a lot or parcel at least 5,000 square feet
in area and at least 50 feet wide, which conformed to all zoning
and subdivision or partition requirements, if any, in effect on
the date the parcel was created, and which was created by any
of the following means:
Shevlin Heights LLC
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1. By partitioning land as defined in ORS 92.010(8);
2. By a subdivision plat, as defined in ORS 92.010(9 filed
with the County Surveyor and recorded with the
Deschutes County Clerk;
3. By deed or contract, dated and signed by the parties to
the transaction, containing a separate legal description
of the lot or parcel, and recorded in Deschutes County if
recording of the instrument was required on the date of
the conveyance. If such instrument contains more than
one legal description, only one lot of record shall be
recognized unless the legal descriptions describe lots in
accordance with a recorded subdivision or town plat;
4. By a town plat filed with the Deschutes County Clerk
and recorded in the Deschutes County Record of Plats;
or
5. By the subdividing or partitioning of adjacent or
surrounding land, leaving a remainder parcel.
FINDINGS: The record indicates that in 1992 the county determined that the subject property —
Tax Lot 500 on Map 17-11-26 — was not a separate legal lot of record, but rather was part of a
larger legal lot in common ownership that included Tax Lots 500 and 502 on Map 17-11-25 (LR -
92 -34). The decision also determined that Tax Lot 600 on Map 17-11-25 was a separate legal lot
of record. In July, 1999, the city issued a lot -of -record determination for Tax Lots 502 and 600
on Map 17-12-25 that reached the same conclusion as the county's 1992 lot -of -record decision.
As discussed above, in December, 2000, the city issued an administrative decision approving a
tentative plan for the Shevlin Meadows Subdivision. Copies of the decision and the tentative
plan are included in this record. That decision's Findings of Fact describe the property subject to
the subdivision approval as "portions of Tax Lots 500 and 600, Assessor's Map 17-11-25" but do
not list the subject property. The tentative subdivision plan also does not show the subject
property. Thus, the approved tentative subdivision plan includes two of the three tax lots that the
county and city found constitute one legal lot of which the subject property is a part.
Condition 22 of the city's decision approving the Sheviin Meadows tentative plan states:
"Future development areas not assigned lot numbers on the tentative plan shall be
platted as separate `tracts' on the final plat(s). This requirement pertains to all
portions of the Applicant's Lot of Record (as determined by letter dated 7/29/99
and adjusted by Lot Line adjustment file 99-244), which the City now recognizes
as Tax Lots 502 and 600 on Assessor's Map 17-11-25 and Tax Lot 500 on
Assessor's Map 17-11-26. (Emphasis added.)
Under the 1998 Joint Management Agreement between the city and the county governing
management of the Bend UGB and surrounding "Urban Reserve Lands," the county retained
jurisdiction over the subject property since it is located outside the Bend UGB. Therefore, to the
extent the city's decision approving the Shevlin Meadows Subdivision purported to affect the
subject property it was not effective.
Shevlin Heights LLC Exhibit C
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The questions presented by the applicant's proposal are: 1) whether the subject property
constitutes a separate legal lot of record; and 2) if not, whether the proposed zone change and
PUD can be approved. The Hearings Officer finds the subject property is not now a separate
legal lot of record. It was not created by a final partition or subdivision approval and is not part
of a recorded town plat. The applicant's final argument states, and I concur, that the subject
property `vas improperly formed when the applicant purchased [it] from the Anderson family"
following the effective date of the county's subdivision/partition ordinance. The applicant argues
the subject property nevertheless is, or can in this proceeding be declared, a legal lot of record
under one of two theories. First, the applicant asserts the subject property is a legal lot because it
constitutes a "remainder parcel" since all surrounding parcels legally have been subdivided,
partitioned or declared legal lots. I disagree. The record indicates the subject property and Tax
Lots 502 and 600 still constitute a single legal lot unless and until the city approves a final plat
for the Shevlin Meadows Subdivision on Tax Lots 502 and 600. The applicant acknowledged as
much when it stated at page 5 of its post -hearing memorandum: "The effect of filing the final
plat will be to sever the subject property from the part of the lot that is located in the City of
Bend."
The applicant's second theory asserts the subject "Anderson Acres" tentative plan application
constitutes an application under ORS 92.177 to create a legal lot. The statute provides:
Where application is made to the governing body of a city or county for
approval of the creation of lots or parcels which were improperly formed
without the approval of the governing body, the governing body of a city or
county or its designate shall consider and may approve an application for the
creation of lots or parcels notwithstanding that less than all of the owners of
the existing legal lot or parcel have applied for approval.
The applicant's final argument includes a statement that the owner of Tax Lots 502 and 600, the
rest of the legal lot of record, consents to "the rezoning application and all other pending land use
applications now under consideration by the County." The Hearings Officer finds the pending
tentative plan application by its terms does not constitute an application to make the subject
property a separate legal lot. The application form submitted by the applicant states it is for the
purpose of creating a four -lot subdivision on Tax Lot 500 on Map 17-11-26.
In the alternative, the applicant argues legal lot -of -record status is not a prerequisite to approval
of a land use action under Title 19. The Hearings Officer finds this argument has merit. Title 17
does not include a legal lot definition. Title 19 defines "lot" as a legal lot? However, I have
found no provision in either Title 17 or Title 19 that expressly limits a zone change, subdivision
or PUD approval to legal lots. I am aware that in practice the county generally does not accept
land use applications for lots of questionable legal status without first requiring the applicant to
apply for and receive a legal lot verification. However, the record indicates the county accepted
the subject zone change, subdivision and PUD applications notwithstanding its previous decision
that the subject property is not a separate legal lot.
The circumstances presented by this application are unusual because of the unique status of the
2 Section 19.04.611 defines "lot" as:
... a parcel of land used or capable of being used under the regulations of DCC 19,
lawfully created as such in accordance with the subdivision and partition laws or
ordinances in effect at the time of its creation. (Emphasis added.)
Shevlin Heights LLC
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subject property. The Hearings Officer agrees with the applicant that actions taken by the county
and city -- beginning with establishment of the Bend UGB and zoning district boundaries in the
middle of the subject property, and most recently with the city's approval of a tentative
subdivision plan for Tax Lots 502 and 600 — should not prevent the applicant from developing
the subject property. I also find it likely that the county would approve the establishment of the
subject property as a separate legal lot if the applicant were to submit an application under ORS
92.177. Finally, I find the subject property will be a legal lot once the city grants final plat
approval for the Shevlin Meadows Subdivision. For these reasons, I find that under the unique
circumstances presented here, the subject property should be considered a legal lot of record for
purposes of the subject zone change, conditional use and tentative subdivision plan applications.
ZONE CHANGE
2. Chapter 19.116, Amendments, Appeals and Procedures
a. 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.
FINDINGS: The Hearings Officer finds this approval criterion includes three separate
requirements: 1) conformance with the comprehensive plan map; 2) conformance with the
comprehensive plan text; and 3) consistency with the plan's intent to promote "an orderly pattern
and sequence of growth." Each of these requirements is discussed below.
1. Conformance With the Comprehensive Plan Mau.
The comprehensive plan consists of the plan text and map. The subject property is designated
Urban Reserve on the Bend Area General Plan Map and therefore the applicant's proposed zone
change from SM to UAR-10 would be consistent with the plan map.
2. Conformance With the Comprehensive Plan Teat.
The Bend Area General Plan includes the following language at page P-4:
At the end of each chapter [of the plan] are policies that address issues discussed in
the chapter. The policies in the General Plan are statements of public policy, and are
used to evaluate any proposed changes to the General Plan. Often these statements
are expressed in mandatory fashion using the word "shall." These statements of
policy shall be interpreted to recognize that the actual implementation of the policies
will be accomplished by land use regulations such as the city's zoning ordinancc
subdivision ordinance and the like. The realization of these policies is subject to the
practical constraints of the city such as availability of funds and compliance of [sic]
all applicable federal and state laws, rules and regulations, and constitutional
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limitations. (Emphasis added.)
In previous city zone change decisions (e.g., Clabaugl4 City file 99-118) the Hearings Officer
has held the underscored language signifies comprehensive plan policies are not approval criteria
for quasi-judicial land use applications. Rather, they provide guidance in interpreting and
applying the provisions of the zoning ordinance. I adhere to and apply this holding in this county
application because my review is governed by Title 19, the Bend Urban Area Zoning Ordinance,
which is the same ordinance applicable in the city. Therefore, I find the applicant is not required
to demonstrate the proposed zone change complies with individual plan policies.
3. Consistency with the Plan's Intent to Promote An Orderly Pattern and Sequence of
Growth.
In previous city zone change decisions the Hearings Officer has held the phrase "orderly pattern
and sequence of growth" in this approval criterion contemplates consideration of both the
location and timing of development. I have held an orderly pattern of growth is one that
promotes compatible physical relationships between zoning districts and uses, while an orderly
sequence of growth promotes development concurrent with the provision of adequate services.3
a. Orderly Pattern of Growth. The proposed zone change would allow the subject property to be
developed with the applicant's proposed 44ot PUD, a use permitted in the UAR-10 Zone. As
discussed above, the area surrounding the subject property currently is undeveloped. However,
three adjacent tax lots to the east and north within the city limits have received approval for
urban -density residential subdivisions. The applicant has proposed a PUD in order to create lots
smaller than the 10 -acre minimum lot size in the UAR-10 Zone, ranging from approximately 2 to
4 acres. These lots would be more compatible with nearby urban -density residential development
than 10 -acre lots. The applicant has proposed a large area of open space that could be
redeveloped in the future at urban density if and when the subject property is annexed to the
Bend UGB. The Hearings Officer finds the subject property's Urban Reserve designation clearly
indicates the city's and county's intention that the subject property be developed in such a
manner that it can be redeveloped at urban density when needed for future growth. For these
reasons, I find the applicant's proposed zone change from SM to UAR-10 will promote
compatible physical relationships between zoning districts and uses and therefore . will be
consistent with the plan's intent to promote an orderly pattern of growth.4
b. Orderly Sequence of Growth. As discussed above, the Hearings Officer has held an orderly
sequence of growth is one that promotes development concurrent with the provision of adequate
urban infrastructure, including sewer, water, police and fire protection, schools and
transportation facilities. The subject property is located outside the city limits and any fire
a E.g., Steele (city file 98-309), EasMdge I (city file 95-289), Eastddge H (city file 97-184), Clabaugh,
Ertle (city file 99-231) and West Bend (city file 99-149).
4 In its comments on the applicant's proposal, the city recommended that the applicant be required to
submit a redevelopment plan for the subject property that would "illustrate that the property can be
redeveloped upon inclusion in the UGB at some point in the future." The city did not cite, nor has the
Hearings Officer found, any authority in Title 17 or Title 19 that would authorize such a requirement.
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protection district boundaries. The applicant has indicated its intention to obtain fire protection
either through a contract with the Bend Fire Department or through annexation to the Bend Rural
Fire Protection District #2. The applicant proposes to serve the PUD lots with individual wells or
a shared well and individual on-site septic systems.
The Bend -La Pine School District submitted comments on the applicant's proposal. In addition
to the standard comments the district typically submits addressing school capacity and district
policies, the district requested that the Hearings Officer impose several conditions of approval on
the applicant's proposal. These include: (1) providing sidewalks on at least one side of the PUD
street in order to accommodate student pedestrians; (2) making the PUD street a public road; (3)
if the PUD street is private, granting the district a perpetual, easement allowing the district's
vehicles to travel on the private street, and giving the district a waiver holding the district
harmless for any road damage caused by its vehicles; and (4) preserving land for school purposes
in conjunction with the School District's facilities plan. The applicant has proposed to provide a
two -foot gravel shoulder on each side of the 28 -foot -wide private PUD street for pedestrians. As
discussed in the findings below, I have found this proposal satisfies the applicable criteria. I find
there is no basis to require that the PUD street be public inasmuch as private streets are permitted
in PUD's.
The applicant has objected to any requirement of an access easement or damage waiver for the
school district, stating it is very unlikely district buses would pick up students within the PUD.
The Hearings Officer concurs with the applicant and finds no need for any easement or damage
waiver. The applicant also objects to any requirement that land in the PUD be set aside for a
future school, citing the presence of two new schools on property to the east and the lack of a
nexus between the proposed 44ot PUD and impacts on the district's facilities. Again, I concur
with the applicant and find no legal basis to impose such a condition of approval.
The remaining infrastructure issue is the adequacy of affected transportation facilities. The
applicant proposes access to the PUD lots through a private street that would connect to "C"
Drive, a public street within the adjacent Shevlin Meadows Subdivision and thereafter to Shevlin
Park Road, a designated arterial. As discussed elsewhere in this decision, the Hearings Officer
has found the applicant will be required as a condition of approval and prior to the filing of the
final subdivision plat for approval to demonstrate it has legal access across the Shevlin Meadows
Subdivision property to Shevlin Park Road. I am aware the Institute of Transportation Engineers
Trip Generation Manual (ITE Manual) predicts each single-family dwelling will generate
approximately 10 average daily vehicle trips (ADT's) of which approximately 10 percent would
be p.m. peak hour trips (between 4:00 and 6:00 p.m. weekdays). Therefore, the proposed PUD
would generate 40 ADT's and 4 p.m. peak hour trips. I find this level of traffic will not exceed
the capacity of any affected transportation facilities.
For the foregoing reasons, the Hearings Officer finds the applicant has met its burden of
demonstrating the proposed zone change satisfies this approval criterion.
B. That the change will not interfere with existing development,
development potential or value of other land in the vicinity of
the proposed action.
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FINDINGS: As discussed above, the surrounding tax lots currently are undeveloped, although
three adjacent tax lots to the north and east. have received city approval for development of
urban -density residential subdivisions. The Hearings Officer finds the applicant's proposed 4 -lot
residential PUD will not interfere with these subdivisions. The record indicates the tax lots to the
north, south and west are designated Urban Reserve and zoned UAR-10. Therefore, they are in
the same category of developability as the subject property would be with the proposed zone
change. That is, they are being held in reserve for future urban -density development and
theoretically could be subdivided or partitioned into 10 -acre lots or developed with a PUD
similar to the applicant's proposal. I therefore find the proposed zone change will not interfere
with the potential development or value of these parcels.
The remaining question under this approval criterion is the effect of the applicant's proposal on
the subject property's potential for further surface mining. The record indicates the subject
property was mined for pumice off and on for 55 years. The record also indicates the subject
property is included in the county's comprehensive plan Goal 5 inventory of mineral and
aggregate resources as SM Site 301. Exhibit "A" to Ordinance 90-025, the ordinance by which
the county adopted its surface mining inventory, lists Site 301 as a surface mining site within the
Bend UGB but does not identify the quantity or quality of the resources The ordinance states
sites inside the UGB were not intended to be a part of the county's surface mining site inventory.
However, the quantities and qualities of material, if any, identified at those sites were to be
included in the county's overall calculations of quantities of available mineral resources.
Nevertheless, the Hearings Officer concurs with the applicant that because the county's
inventory of mineral and aggregate sites did not include quantity and quality for Site 301, it was
not considered a "significant" site and therefore it is not necessary for the county to undertake
another Goal S analysis to determine if a "significant" resource remains on the property.
The applicant's application and burden of proof state it does not intend to conduct further mining
on the subject property because there is not a market for its pumice material. The record also
indicates the largest pumice mining company in the area is not interested in mining the property.
The applicant proposes eventually to reclaim the mined areas by moving pumice from elevated
areas into the pits. Extraction and processing of mineral and aggregate resources is a conditional
use in the UAR-10 Zone under ORS 19.12.030(E). However, it is difficult to imagine how
further mining of pumice on the subject property could be found to satisfy the conditional use
compatibility standards in light of nearby existing and approved residential subdivisions within
the city limits. For that reason, the Hearings Officer finds it highly unlikely this property ever
will be mined again. Consequently, I find the proposed zone change will remove from the
property the potential value of the pumice resource. Nevertheless, I find this is not a basis to
deny the proposed zone change. I am aware that throughout the western portion of the Bend
UGB are former pumice mines that like the one on the subject property now abut or are
surrounded by urban development. The nearby Broken Top development successfully has
incorporated former pumice mines into its golf course and open space areas. Other former mines
s The Hearings Officer understands Site 301 was included in the list of UGB sites because it is located in
what was considered the city's "outer" urban growth boundary — essentially what are now called "Urban
Reserve Lands."
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have been reclaimed in a way that enhances the property's value. Therefore, I find the
applicant's proposed zone change satisfies this criterion in spite of the loss of the pumice
resource.
C. That the change in classification for the subject property is
consistent with the purpose and intent of the proposed zone
classification.
FINDINGS: Section 19.12. 010 states the purpose of the UAR-10 Zone is:
To serve as a holding category and to provide opportunity for tax
differentials as urban growth takes place elsewhere in the planning area,
and to be preserved as long as possible as useful open space until needed for
orderly growth.
The Hearings Officer finds the proposed zone change from SM to UAR-10 is consistent with the
purpose of the UAR-10 Zone because it will allow the subject property to be developed with a 4 -
lot PUD with relatively small, clustered lots and a large area of open space. The proposal will
allow the majority of the property to be held in reserve for future urban development if and when
the property is annexed into the Bend UGB.
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.
FINDINGS: As discussed above, the applicant proposes to serve the four PUD lots with
individual wells or a shared well and on-site septic systems. Therefore, no public sewer or water
services are contemplated. The Hearings Officer finds this proposal is consistent with the
county's policy for provision of rural services for Urban Reserve lots until such time as the
property is included within the urban growth boundary. I further find the proposed PUD lots will
be large enough to accommodate both septic systems and private wells. The record includes well
logs for several wells in the area and an analysis of this information by the applicant's engineer
(included in the record as Exhibits "C" and `B," respectively, to the applicant's posting hearing
evidence) that indicate domestic water will be available to the PUD lots at a depth less than 500
feet, therefore eliminating the need for dcommunity water system.
Because the property lies outside the city limits, police protection will be provided by the
Deschutes County Sheriff. The record indicates the subject property also lies outside the
boundaries of any fire protection district. The applicant proposes to provide fire protection either
through a contract with the Bend Fire Department or through annexation to the Bend Rural Fire
Protection District #2.
Finally, the applicant proposes to provide access to the PUD lots from Shevlin Park Road, a
designated arterial, by a private PUD street that will connect to "C" Drive, a public street within
the adjacent Shevlin Meadows Subdivision. As discussed in detail in the findings below, "C"
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Drive does not extend to the subject property and therefore the applicant will be required as a
condition of approval to demonstrate legal access across the adjacent property to Shevlin Park
Road. The record indicates the applicant as a member of the "Westside Consortium" has entered
into a development agreement whereby it will fund major city street improvements designed to
accommodate traffic generated by the proposed PUD, the adjacent Shevlin Meadows
Subdivision and a number of other west side Bend developments. The Hearings Officer finds the
applicant's proposed access will be adequate with a condition of approval requiring the applicant
to demonstrate legal access to Shevlin Park Road across the adjacent property.
For the foregoing reasons, the Hearings Officer finds the applicant's proposal can satisfy this
approval criterion with the imposition of conditions of approval.
E. That there is a proof of a change of circumstances or a mistake
in the original zoning.
FINDINGS:
1. Mistake. As discussed above, the subject property was included in the county's Goal 5
inventory of significant mineral and aggregate sites even though it was located within the city's
"outer" UGB. In addition, the inventory does not indicate the quantity or quality of the resource.
For this reason, the Hearings Officer assumes the county zoned the property for surface mining
because of its historic use. Therefore, I find there is not sufficient evidence in the record to show
that a mistake was made in the property's original SM zoning.
2. Change of Circumstances. The applicant asserts the proposed zone change is justified by a
change of circumstances consisting of the depletion all valuable pumice on the property. In
support of this assertion, the applicant submitted evidence that Richard "Dugan" Pearsall,
president of Cascade Pumice, the largest pumice mining company in the area, concluded as
follows:
"... [T]here is a small pocket of marketable pumice in the southwest area of the
property -- about 20, 000 yards This pumice is known as `Bend Pumice. " The
rest of the pumice on the property (the open face on the north side of the
property) is not Bend Pumice and is not marketable. In this part of Bend, Bend
Pumice is found in fingers rather than one solid area: This explains the small
quantity of resource on the subject property.
. . .[TJhe cost of mining the subject property and obtaining all required
approvals is too high to merit mining the 20, 000 yards of Bend pumice... [IJt
will cost more to do than it is worth.... [B]ased on current mining practices
when County code required setbacks to adjoining properties are provides; only a
small part of the pumice would be able to be removed from the property... .
[TJhe applicant would be required to pay to remove overburden and return to
top of the property if the property were mined at a commercial scale.... County
and DOGAhff approval would be needed if the property were mined in the
intensive manner used for commercial operations. "
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The Hearings Officer understands Mr. Pearsall to believe that it is no longer economically
feasible to mine the small amount of marketable pumice remaining on the subject property,
considering its location so close to the Bend urban area. Based on this evidence, I find the
applicant has met its burden of demonstrating a change of circumstance justifying the proposed
zone change from SM to UAR-10.
B. Oregon Administrative Rules
1. OAR 660, Division 12, Transportation Planning Rule
a. OAR 660-012-060, Plan and Land Use Regulation Amendments.
(1) Amendments to functional plan, acknowledged comprehensive
plans, and land use regulations which significantly affect a
transportation facility shall assure that allowed land uses are
consistent with the identified function, capacity, and level of
service of the facility. This shall be accomplished by either:
(a) Limiting allowed land uses to be consistent with the
planned function, capacity and level of service of the
transportation facility;
(b) Amending the TSP [Transportation System Plan] to
provide transportation facilities adequate to support the
proposed land uses consistent with the requirements of
this division;
(c) Altering land use designations, densities, or design
requirements to reduce demand for automobile travel
and meet travel needs through other modes.
(2) A plan or land use regulation amendment significantly affects
a transportation facility if it:
(a) Changes the functional classification of an existing or
planned transportation facility;
(b) Changes standards implementing a functional
classification system;
(c) Allows types or levels of land uses which would result in
levels of travel or access which are inconsistent with the
functional classification of a transportation facility; or
(d) Would reduce the level of service of the facility below
the minimum acceptable level identified in the TSP. .
FINDINGS: The Staff Report states this rule is not applicable because the applicant's proposed
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zone change is not an amendment to an acknowledged plan or land use regulation. The Hearings
Officer disagrees. In my previous city decisions in Ertle and Clabaugh, I held the Transportation
Planning Rule (TPR) is applicable to zone change applications because the zoning map is a part
of the zoning ordinance and therefore is a "land use regulation." I adhere to that holding here.
The question presented is whether the applicant's proposal will "significantly affect" a
transportation facility. With respect to paragraphs (2)(a) and (b), I find the proposal will not
change the functional classification of or standards applicable to the affected streets — Shevlin
Park Road, a designated minor arterial, and the public street within the Shevlin Meadows
Subdivision, presumably to be classified as a local street. Both streets will function as classified
with the addition of the 40 ADT's expected to be generated by the proposed 44ot PUD. The
record does not indicate whether the county's TSP identifies levels of service. However, I find
the addition of only 40 ADT's to either the local subdivision street or Shevlin Park Road will be
so minimal -as not to affect the streets' levels of service.
Paragraph (2)(c) provides that an amendment to a land use regulation "significantly affects" a
transportation facility if it would allow development that would "result in" levels of traffic
inconsistent with a facility's functional classification. As discussed in the findings above,
incorporated by reference herein, the Hearings Officer has found the addition of the minimal
traffic that would be generated by the applicant's proposal will not exceed the capacity of these
facilities. Therefore, I find the applicant's proposed zone change will not "significantly affect" a
transportation facility.
For the foregoing reasons, the Hearings Officer finds the applicant's proposal can with
conditions of approval satisfy all applicable zone change criteria.
PLANNED UNIT DEVELOPMENT
3. Chapter 19.12, Urban Reserve Zone (UAR-10)
a. Section 19.12.030, Conditional Uses
The following conditional uses may be permitted subject to a
conditional use permit and the provisions of DCC 19.76 and 19.100.
N. Planned unit development subject to Chapter 19.104.
FINDINGS: The applicant is seeking conditional use approval to establish a 4 -lot residential
PUD on the subject property, a use permitted conditionally in the UAR-10 Zone. Compliance
with the provisions of Chapter 19.100 is addressed in the findings below.
b. Section 19.12.040, Height Regulations.
No building or structure shall be hereafter erected, enlarged or
structurally altered to exceed 30 feet in height.
FINDINGS: The applicant is not proposing buildings or structures exceeding 30 feet in height.
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C. Section 19.12.050, Lot Requirements
The following requirements shall be observed:
A. Lot Area. Each lot shall have a minimum area of ten acres.
FINDINGS: The applicant is requesting approval of a PUD in part to allow the creation of lots
smaller than the 10 -acre minimum lot size in the UAR-10 Zone by clustering them and providing
a large area of open space. The proposed lots range in size from 2.17 -acres to 3.8 acres with open
space consisting of 27.93 acres. Section 19.04.806 defines Planned Unit Development as:
... the development of an area of land as a single entity for a number
of units or a number of uses, according to a plan which does not
necessarily correspond in lot size, bulk or type of dwelling, density.
lot coverage or required open space to the standard regulations
otherwise required by DCC Title 19. (Emphasis added.)
In addition, Section 19.104.060 provides in pertinent part:
. . . Such other pertinent information shall be included [in the PUD
application] as may be considered necessary by the Hearings Body or
Planning Director to make a determination that the contemplated
arrangement or use makes it necessary and desirable to apply regulations
and requirements differing from those ordinarily applicable under DCC 19
and the subdivision ordinance. (Emphasis added.)
Based upon these provisions, the Hearings Officer finds the applicant's proposal need not
comply with the minimum lot size in the UAR-10 Zone.
B. Lot Width. Each lot shall have a minimum average width of
300 feet with a minimum street frontage of 150 feet.
FINDINGS: The submitted tentative plan shows the lot widths vary from about 75 feet (near the
cul-de-sac of Lot 3) to about 1062 feet (along the southern property line of the common open
space lot. Lots 2 and 3 and the common open space lots all have a minimum street frontage
exceeding 150 feet. Lot 1 has a street frontage of approximately 139 feet and Lot 4 has a street
frontage of approximately 65 feet. As discussed in the findings immediately above, PUD's are
not required to meet the minimum width and street frontage requirements in the UAR-10 Zone.
C. Front Yard. The front yard shall be a minimum of 50 feet from
the existing street right-of-way line or the ultimate street right
of way as adopted on the Comprehensive Plan or Official Map,
except that any lot of record less than one acre in size lawfully
created prior to (effect date of this title) shall have a minimum
front yard of 30 feet.
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FINDINGS: The applicant is requesting approval of a minimum front yard setback of 20 feet,
arguing that since the PUD lots will have access from a private road there will be no "street
right-of-way line" or "ultimate street right-of-way" as contemplated in this standard. The
applicant also notes its proposal is for the same front yard setback as is applicable to dwellings in
the adjacent RS Zone in the city limits.
The Staff Report states the PUD provisions in Title 19 do not allow exceptions to the front yard
setback and therefore the applicant should be required to apply for a variance under Section
19.108. As discussed above, the PUD definition in Section 19.04.806 specifically refers to
variations to "lot size, bulk or type of dwelling, density, lot coverage or required open space."
The applicant responds that no variance is required for an exception to the front yard setback
because of the language in Section 19.104.060 quoted in the above findings. The applicant
argues reducing the front yard setback meets the "necessary and desirable" PUD standard
because the proposed setback will be more compatible with future urban -density development of
the subject property after it is annexed to the Bend UGB. The applicant also argues a small front
yard setback will allow lot owners to place their homes in a location that does not utilize a large
part of the lot, preserving the rest of the lot for future redevelopment.
The Hearings Officer concurs with the applicant. I find that reading the PUD purpose statement
together with Section 19.104.060 compels the conclusion that the applicant for PUD approval
need not apply for a variance to each development standard, otherwise applicable to the proposed
development, that the applicant proposes to modify as part of the PUD plan. Therefore, I find the
applicant'.s proposal need not satisfy this setback standard.
D. Side Yard. There shall be a minimum side yard of 10 feet.
FINDINGS: The applicant's burden of proof and application state no dwellings will be
constructed within the minimum 10 -foot side yard.
E. Rear Yard. There shall be a minimum rear yard of 50 feet.
FINDINGS: The applicant also is proposing a reduced rear yard setback, from 50 to 20 feet. The
provisions of Title 19 do not specifically exempt PUD's from the minimum setbacks in the
UAR-10 Zone. However, as discussed in the findings above, incorporated by reference herein,
the Hearings Officer has found the applicant need not obtain a variance to the yard standards in
the.UAR-10 Zone if it can demonstrate a smaller setback is "necessary and desirable" under the
PUD standards in Chapter 19.104. I concur with the applicant that a reduced rear yard standard is
appropriate to allow development of the proposed PUD lots utilizing less land, and making
possible potential redevelopment in the future when the subject property is annexed into the
Bend UGB.
F. Solar Setback. The solar setback shall be as prescribed in
Section 19.88.210.
FINDINGS: The Staff Report states, and the Hearings Officer concurs, that solar setbacks will
be verified at the time of building permit applications for individual lots. However, I find the
proposed PUD lots will be of sufficient size to allow any dwellings constructed thereon to
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comply with the solar setback requirements of Title 19.
4. Chapter 19.100, Conditional Use Permits
a. Section 19.100.030, General Conditional Use Criteria
A conditional use permit may be granted only upon findings by the
Planning Director or Hearings Body that the proposal meets all of the
criteria in this section, as well as all other applicable criteria
contained in this title. The general criteria are:
A. That the location, size, design and operating characteristics of
the proposed use are such that it will have minimal adverse
impact on the property value, livability and permissible
development of the surrounding area. Consideration shall be
given to compatibility in terms of scale, coverage and density
with the alteration of traffic patterns and the capacity of
surrounding streets and to any other relevant impact of the
proposed use.
FINDINGS: The subject property abuts the city limits and UGB on the north and east. The city
has granted tentative plan approval for a 94 -lot residential subdivision on two tax lots to the east,
and a tentative subdivision plan for another tax lot to the north is pending city approval. The
remainder of the surrounding area is undeveloped and zoned UAR-10. The proposed PUD would
have 4 lots ranging in size from approximately 2 to 4 acres with approximately 28 acres of open
space. The lots would be clustered near the northern and western property boundaries and the
open space would abut the adjacent tax lots approved for subdivisions and incorporate former
mining areas. As discussed in the findings above, incorporated by reference herein, the Hearings
Officer has found the proposal will have no adverse impacts on surrounding parcels. The overall
proposed PUD density will be the same as surrounding UAR-10-zoned parcels (one dwelling
unit per ten acres) and considerably lower than in the adjacent urban -density subdivisions.
Development of the four proposed lots will create minimal traffic impacts on affected streets,
including the public street to be developed in the adjacent Shevlin Meadows Subdivision and
Shevlin Park Road. For these reasons, I find the applicant's proposal satisfies this criterion.
B. That the site planning of the proposed use will, as far as
reasonably possible, provide an aesthetically pleasing and
functional environment to the highest degree consistent with
the nature of the use and the given setting.
FINDINGS: The applicant proposes to cluster the four lots on the northern and western property
boundaries where the subject property retains its natural topography and vegetation. The
remainder of the property would be retained in open space, incorporating the excavated areas
where pumice previously was mined. The Hearings Officer finds this site design will create
attractive residential lots in areas with very buildable topography while creating no further
disturbance to the previously -mined portions of the property. The applicant's burden of proof
and application state this area eventually will be reclaimed by moving pumice from elevated
areas into excavated pits. For these reasons, I find the proposed site design will result in an
aesthetically pleasing and functional environment satisfying this approval criterion.
C. That if the use is permitted outright in another zone, there is
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substantial reason for locating the use in an area where it is
only conditionally allowed, as opposed to an area where it is
permitted outright.
FINDINGS: The Hearings Officer finds this criterion does not apply because PUD's are not a
use permitted outright in any zone.
D. That the proposed use will be consistent with the purposes of
this Ordinance, the Comprehensive Plan, Statewide Goals and
any other applicable statutes, ordinances or policies.
FINDINGS: As discussed above, the Hearings Officer has found the applicant's proposal is
consistent with the purpose of the UAR-10 Zone and with the statutes and provisions of Title 19
governing legal lots. I also have found the Bend Urban Area Plan does not establish approval
criteria for the applicant's quasi-judicial land use applications, and that its policies are
implemented through Title 19. I further find I need not evaluate the applicant's proposal against
the statewide planning goals because the Bend Area General Plan has been acknowledged. For
these reasons, I find the applicant's proposal satisfies this criterion.
5. Chapter 19.104, Planned Unit Development Approval
a. Section 19.104.040, Minimum Size for Planned Unit Developments
No application shall be accepted for an area of less than five acres in
any R zone, or for an area of less than four acres in any other zone.
FINDINGS: The subject property is approximately 40 acres in size, thus satisfying this criterion.
b. Section 19.104.050, Limitation on Application
No application shall be accepted for a use which will require a change
of zone unless accompanied by an application for a zoning
amendment as set forth in DCC 19.116.
FINDINGS: The PUD application was accompanied by an application for a zone change as
required by this criterion.
C. Section 19.104.060, Plan Required
All applications shall be accompanied by a general development plan
drawn to scale showing the use or uses, dimensions and locations of
proposed structures and of areas to be reserved for vehicular and
pedestrian circulation, parking, public uses, landscaping and other
open spaces and drawings and sketches demonstrating the design and
character of the proposed uses and the physical relationships of the
uses. Such other pertinent information shall be included as may be
considered necessary by the Hearings Body or Planning Director to
make a determination that the contemplated arrangement or use
makes it necessary and desirable to apply regulations and
requirements differing from those ordinarily applicable under this
title and the subdivision ordinance.
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FINDINGS: The applicant submitted a tentative subdivision plan drawn to scale that shows
topography, lot size, dimensions, vehicular access, and the proposed common open space area.
The plan shows that the topography of the southeast quadrant of the subject property has been
modified dramatically as a result of previous mining for pumice, creating pits and headwalls that
make this area unsuitable for the siting of dwellings or roads. As a result of this topography, the
applicant proposes to reduce the size of the four proposed lots from 10 to between 2 and 4 acres,
and to cluster these smaller lots and the private access road on the undisturbed land on the
northern and western part of the property. The Hearings Officer finds the applicant's tentative
plan demonstrates that due to the property's topography and location adjacent to the city limits, it
is necessary and desirable to develop the subject property as a PUD rather than with four 10 -acre
lots in a more ordinary configuration. PUD development will allow the reclamation of formerly
mined areas and future redevelopment at urban density when the subject property is annexed into
the Bend UGB. Therefore, I find the applicant's proposal satisfies this criterion.
d. Section 19.104.070, Standards for Approval
In granting approval for planned unit development, the Hearings
Body or Planning Director shall be guided by the following:
A. Whether applicant has, through investigation, planning, and
programming, demonstrated the soundness of the proposal
and an ability to carry out the project as proposed, and
whether the construction shall begin within six months of the
conclusion of any necessary action by the county, or within
such longer period of time as may be established by the
Hearings Body or Planning Director.
FINDINGS: The applicant's application includes the following information to demonstrate the
soundness of its proposal and its ability to carry out the project:
1. a letter dated November 30, 2000, from Roger L. Christensen, Chief Operating Officer of
Columbia Bancorp, stating that the applicant's principal has the financial capability to develop
the proposed PUD; and
2. a letter dated November 30, 2000, from the applicant's principal stating two realtors in Bend
concluded there is a market for the proposed PUD lots, and that he intends to reside on one of the
proposed PUD lots.
The burden of proof and application state the applicant intends to complete development of the
project within the two-year period during which the approval is valid under Section
22.36.010(Bxl) of the county's procedures ordinance, and any extensions authorized by that
section. The Staff Report notes Section 19.104.090 provides with respect to PUD's:
Any approval of a planned unit development granted hereunder shall lapse
and become void within two years after the final granting of approval or
within such other period of time as may be stipulated by the Hearings Bodv
or Planning Director as a condition of such approval, construction of the
buildings or structure involved in the development has begun and been
diligently pursued. The Planning Director or Hearings Body may further
impose other conditions limiting the time within which the development of
portions thereof must be completed. (Emphasis added.)
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The applicant has requested that the Hearings Officer specify in this decision that the two-year
period during which this approval is valid can be extended pursuant to Section 19.104.090. I find
this request is reasonable and such language will be included in the decision.
B. Whether the proposal conforms with the general plans of the
county in terms of location and general development
standards.
FINDINGS: As discussed above, the subject property is designated Urban Reserve, indicating
the county's and city's intent that it be developed at urban density when it is annexed in to the
Bend UGB in the future. The property abuts land within the city limits that has been approved
for urban -density residential subdivisions. The proposal's compliance with the applicable
development standards is discussed throughout this decision.
C. Whether the project will accrue benefits to the county and the
general public in terms of need, convenience, service, and
appearance sufficient to justify any necessary exceptions to the
regulations of the zoning and subdivision ordinances.
FINDINGS: As discussed above, the subject property has been mined for pumice and its
topography has been altered to the point where a significant portion of the property cannot be
developed with residential uses. The applicant's proposed PUD would cluster four lots on the
developable portion of the property and incorporate the formerly mined area into common area.
The burden of proof and application state the applicant intends to reclaim the former mining
sites, providing a public benefit through improving the appearance of the pits and headwalls
created by previous mining, and holding the proposed common area for future urban
development. The Hearings Officer concurs and finds these benefits justify the reduction in lot
size proposed for the PUD.
D. Whether the project will satisfactorily take care of the traffic it
generates by means of adequate off-street parking, access
points, additional street right of way and improvements and
any other traffic facilities required.
FINDINGS: As discussed above, dwellings on the four proposed PUD lots would generate a
total of 40 ADT's of which 4 would occur during the p.m. peak hour. The Hearings Officer finds
the size of the proposed lots — approximately 2 to 4 acres -- will be adequate to accommodate
off-street parking. I also find the minimal traffic that will be generated by the PUD will have
adequate access to Shevlin Park Road, a designated minor arterial, through a private PUD street
that will connect to "C" Drive, a public street within the adjacent Shevlin Meadows Subdivision.
The Hearings Officer finds both the local subdivision street and Shevlin Park Road will handle
the minimal traffic that will be generated by the proposed PUD. Therefore, I find the applicant's
proposal satisfies this criterion.
E. Whether the project will be compatible with adjacent
developments and will not adversely affect the character of the
area.
FINDINGS: As discussed in the conditional use findings above, incorporated by reference
herein, the Hearings Officer has found the proposed PUD will be compatible with both the
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adjacent urban -density residential subdivisions approved by or pending before the city, and the
adjacent parcels zoned UAR-10. In addition, the applicant proposes to reclaim the portion of the
property formerly mined for pumice, making this area more attractive and compatible with
residential development. Therefore, I find the applicant's proposal satisfies this criterion.
F. Whether the project will satisfactorily take care of sewer and
water needs consistent with the Bend Area General Plan.
FINDINGS: The applicant proposes to provide sewage treatment for the four PUD lots through
individual on-site septic systems. The Hearings Officer finds the proposed lots will be large
enough to accommodate such systems. The applicant will be required as a condition of approval
to obtain a septic site evaluation and construction permit for each lot's system. The applicant
proposes to provide domestic water through individual wells or a shared well rather than a public
water system. The record includes copies of well logs indicating water is available in the area at
relatively shallow depth. Therefore, I find the applicant's proposal satisfies this criterion.
G. A planned unit development shall not be approved in any R
zone if the housing density of the proposed development will
result in an intensity of land use greater than permitted by the
Comprehensive Plan.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the UAR-10
Zone is not an "R" — or residential — zone. In any case, the proposed PUD density would be one
dwelling per ten acres, the maximum allowed in the zone. Therefore, I find the applicant's
proposal satisfies this criterion.
e. Section 19.104.0809 Standards and Requirements
Approval of a request for a planned unit development is dependent
upon the submission of an acceptable plan and satisfactory assurance
that it will be carried out. The following minimum standards shall
apply:
A. A dwelling use permitted in any zone may be permitted in a
planned unit development.
FINDINGS: The Hearings Officer finds the applicant's proposal meets this criterion because the
PUD would allow a single-family dwelling on each lot — a use permitted outright in the UAR 10
Zone.
B. A manufactured home may be permitted in a planned unit
development. However, manufactured home parks shall not be
allowed in any commercial or industrial zone.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant
does not propose to site manufactured homes in the PUD.
C. Developments which either provide for or contemplate private
streets and ways and common areas which will be or are
proposed to be maintained by the owners of units or lots within
a development must organize and maintain an owner's
association. The owner's association shall consist of all the
Shevlin Heights LLC
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owners of units or lots within the development and
membership in the association must be required of all owners;
adopt and record bylaws as provided by Oregon Revised
Statutes 91.555; adopt bylaws that contain the provisions
required by Oregon Revised Statutes 91.560; and have the
power to create such a lien upon the unit or lot for services,
labor or material lawfully chargeable as common expenses as
provided in Oregon Revised Statutes 91.580. The association's
power to create such a lien shall exist whether or not the
property is subject to the Oregon Unit Ownership Law
(Oregon Revised Statutes 91.505-91.675).
D. If the property is not subject to the Unit Ownership Law, the
association shall also create, by contract, the right to claim a
lien upon any unit or lot for services, labor or material
chargeable as common expenses. This lien may be created by
covenants between the association and the property owners.
and shall supplement the lien created by (C) above and require
all owners of units or lots within the development to consent to
and pay the reasonable value of services, labor, or material
expended by the county for common expenses where such
county expenditures are made because the owners or the
owner's association does not provide the necessary services,
labor or material for common expenses.
FINDINGS: The applicant's burden of proof and application state the applicant will retain
ownership of the open space and therefore this criterion does not apply to that portion of the
property. The applicant proposes to form an owner's association, complying with the
requirements of this section, to maintain the private road within the PUD and any private access
across the adjacent Shevlin Meadows Subdivision of such is needed prior to the filing of the final
subdivision plat including the dedication of the subdivision streets to the public. The applicant
will be required as a condition of approval to satisfy the requirements of this criterion.
E. Streets and roads in planned unit development designated
developments shall be public roads and ways developed to
county standards or be private roads of a minimum 14 feet
wide paved surface for one-way traffic, minimum 20 feet wide
paved surface for two-way traffic, and parallel parking as
permitted shall require minimum additional eight feet of width
for each side of parking. If pedestrian walkways or bikeways
are included in the road, an additional five feet of pavement
width on each side of the roadway shall be provided and
striped to separate such use from motor vehicle traffic and
parking. In addition to these requirements, the Planning
Director or Hearings Body may specify other requirements
including, but not limited to, increased or decreased pavement
width.
FINDINGS: As discussed above, the applicant proposes to build a 28 -foot -wide, paved private
PUD street with 4 -foot striped bike lanes and 2 -foot gravel shoulders on each side, consistent
with the private street standards found in Section 17.48.180 of the subdivision ordinance. The
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applicant notes the PUD street standards in Section 19.104.080(E) -- which require a minimum
pavement width of 30 feet if bicycle and pedestrian paths are included on the roadway -- conflict
with the private street standards in Title 17 which require a minimum pavement width of 28 feet
with gravel shoulders. The applicant argues the private street standards in the subdivision
ordinance should control because: 1) they apply throughout the county; 2) they were enacted
more recently than the PUD street standards in Section 19.104.080(E); and 3) Section
19.104.060 authorizes the Hearings Officer to allow the narrower 28 -foot -wide private street
width as part of PUD approval.
The Hearings Officer cannot determine which of these two street standards is more recent. Both
appear to have been enacted in 1993 based upon the legislative history recited at the end of each
section in the codified county code. Nevertheless, I find I need not resolve the apparent conflict
between these two standards because the last sentence of Section 19.104.080(E) expressly
authorizes me to "specify ... decreased pavement width." I further find the applicant's proposed
street width and construction is appropriate for a 44ot PUD that will have minimal vehicular,
bicycle and pedestrian traffic. The proposed private street will connect to "C" Drive, a public
street in the adjacent Shevlin Meadows Subdivision, providing access to Shevlin Park Road, a
designated arterial. For these reasons, I find the proposal satisfies this criterion.
F. Pedestrian walkways and bike lanes shall be provided for
adequate pedestrian and bicycle traffic, and shall connect to
any adjacent existing or planned sidewalks, bike lanes, access
corridors, or public trails. Off-street pedestrian walkways and
bike lanes shall be at least 10 feet in width to accommodate
two-way traffic and shall be constructed with portland cement
or asphaltic concrete to county standards, except as varied by
provisions of this section or by the Planning Director or
Hearings Body.
FINDINGS: As discussed above, the applicant proposes a 28 -foot wide private street with 4 -foot
striped bike paths and 2 -foot gravel shoulders on both sides. Therefore, the Hearings Officer
finds the requirement of a 10 -foot off-street pedestrian and bike path is not applicable. As
discussed in the findings immediately above, I have found the proposed street width and
construction is consistent with the standards for private streets in Section 17.48.180, is
authorized under Subsection (E) of this section, and is appropriate for the proposed 44ot PUD. I
also find the proposed bicycle and pedestrian pathways will be connected to the sidewalks and
bike lands within the Shevlin Meadows Subdivision because the private PUD street will align
with "C" Drive within the adjacent subdivision. For these reasons, I find the applicant's proposed
PUD street width and construction can be approved.
G. All utility facilities shall be installed underground and in
accordance with county standards.
FINDINGS: The applicant's burden of proof and application state all utility facilities will be
installed underground, thus satisfying this criterion.
H. The design of all planned unit development projects shall
provide direct access for all units and lots to open space areas
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and facilities. Open space areas and facilities include such
things as landscaped areas, natural areas, golf courses, and
other recreational facilities, but do not include streets,
sidewalks, bikeways, access corridors, or trails.
FINDINGS: The submitted tentative Plan shows each of the four proposed lots adjoin the
common open space area. The proposed open space area would consist primarily of the
previously -mined areas in the southeast quadrant of the property, which the applicant propose to
reclaim. The applicant's burden of proof and application state all lot owners will be required to
consent to an application for a modification to this approval to allow the applicant to reduce or
remove the proposed open space area at the time the property is needed for future urbanization
and annexed into the Bend UGB. The Hearings Officer finds the proposed open space is a
significant component of the applicant's proposed PUD and a justification for reducing the size
of and clustering the proposed lots. However, I find the applicant's proposal to eliminate the
open space at the time the subject property becomes available for urban development will be
consistent with the Bend Area General Plan. For these reasons, I find the applicant's proposal
satisfies this criterion.
L A statement must be submitted relative to the solar access to be
provided by the planned unit development.
FINDINGS: The applicant states, and the Hearings Officer concurs, that the proposed PUD lots
will be of sufficient size to assure that each lot will have as much solar access as is feasible.
Therefore, I find the applicant's proposal satisfies this criterion.
E Section 19.104.090, Hearings Body Action
In taking action, the Planning Director or Hearings Body may
approve, approve with conditions or deny an application as
submitted. Any planned unit development as authorized shall be
subject to all conditions imposed and shall be excepted from other
provisions of DCC 19 only to the extent specified in said
authorization. Any approval of a planned unit development granted
hereunder shall lapse and become void within two years after the final
granting of approval or within such other period of time as may be
stipulated by the Hearings Body or Planning Director as a condition
of such approval, construction of the buildings or structure involved
in the development has begun and been diligently pursued. The
Planning Director or Hearings Body may further impose other
conditions limiting the time within which the development of portions
thereof must be completed. The decision of the Planning Director or
Hearings Body shall be final unless appealed in accordance with the
procedures set forth in the land' use procedures ordinance.
FINDINGS: As discussed above, the applicant has proposed to develop the PUD within the two-
year period during which this approval is valid under Section 22.36.010 of the procedures
ordinance and any extensions allowed in that section. The applicant has requested that the
Hearings Officer include language in the decision reflecting these time frames. I have found this
request is reasonable and will include appropriate language in this decision.
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TENTATIVE SUBDIVISION PLAN
B. Title 17 of the Deschutes County Code, the Subdivision and Partition Ordinance
1. Chapter 17.16, Approval of Subdivision Tentative Plans and Master
Development Plans
a. Section 17.16.100, Required Findings for Approval
A. The subdivision contributes to orderly development and land
use patterns in the area, and provides for the preservation of
natural features and resources such a streams, lakes, natural
vegetation, special terrain features, agricultural and forest
lands and other natural resources.
FINDINGS: As discussed in the findings above, incorporated by reference herein, the Hearings
Officer has found the proposed four -lot residential PUD will contribute to the orderly
development and land use patterns in the area by including density consistent with the UAR-10
Zone but smaller lot sizes providing a transition between the adjacent urban -density residential
development to the east and undeveloped UAR-10-zoned land to the north, west and south. In
addition, the proposed open space will incorporate the previously mined areas which the
applicant intends to reclaim. I find the "special terrain features" required to be preserved under
this criterion do not include man-made pits and headwalls such as those on the subject property.
The applicant proposes to preserve the natural topography and vegetation on the undisturbed
part of the property to the extent practical. The record indicates the subject property has no
streams, lakes, or agricultural or forest lands. In addition, the Bend Urban Area General Plan
does not identify the property as containing any Areas of Special Interest. For these reasons, I
find the applicant's proposal satisfies this criterion.
B. The subdivision will not create excessive demand on public
facilities and services, and utilities required to serve the
development.
FINDINGS: As discussed above, sewer and water service will be provided to PUD lots through
individual on-site septic systems and individual or shared water wells. The record includes well
logs from surrounding parcels indicating groundwater is available at relatively shallow depth.
The record also includes "willing -to -serve" letters from Pacific Power and QWEST for electric
and telephone service. As also discussed above, the proposed PUD will add very little traffic to
affected streets. The record indicates the subject property is outside any fire district. However,
the applicant has indicated its intent to provide fire protection service either through a contract
with the Bend Fire Department or through annexation to the Bend Rural Fire Protection District
#2. The Hearings Officer finds it likely either method could be used given the subject property's
location adjacent to the city limits. For these reasons, I find applicant's proposal will not create
"excessive" demand on public facilities and services.
C. The tentative plan for the proposed subdivision meets the
requirements of Oregon Revised Statutes Section 92.090.
FINDINGS: The Hearings Officer finds the requirements of ORS 92.090 are implemented by
the provisions of Title 17. Therefore, if the applicant's proposal satisfies the applicable criteria in
Title 17, the requirements of the statute also are satisfied.
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D. For subdivisions or portions thereof proposed within a Surface
Mining Impact Area (SMIA) Combining Zone under Title 18
of the Deschutes County Code, the subdivision creates lots on
which noise or dust sensitive uses can be sited consistent with
the requirements of Chapter 18.56 of Title 18, as amended, as
demonstrated by the site plan and accompanying information
required under Section 17.16.030 of this chapter.
FINDINGS: The Hearings Officer has found the applicant's proposed zone change from SM to
UAR-10 complies with the zone change approval criteria. Therefore, the subject property no
longer will be zoned SM. The record indicates no SMIA Zone was created around the subject
property, and therefore this criterion is not applicable.
E. The subdivision name has been approved by the County
Surveyor.
FINDINGS: The Hearings Officer finds the applicant will be required as a condition of approval
to obtain the County Surveyor's approval of the proposed subdivision name "Anderson Acres."
b. Section 17.16.105, Access to Subdivisions
No proposed subdivision shall be approved unless it would be
accessed by roads constructed to county standards and by roads
accepted for maintenance responsibility by a unit of local or state
government. This standard is met if the subdivision would have direct
access to an improved collector or arterial, or in cases where the
subdivision has no direct access to such a collector or arterial, by
demonstrating that the road accessing the subdivision from a collector
or arterial meets relevant county standards and has been accepted for
maintenance purposes.
FINDINGS: The applicant proposes access for the PUD lots from Shevlin Park Road, a
designated minor arterial street maintained by the city and county. A private PUD street would
connect to "C" Drive, a public street within the adjacent Shevlin Meadows Subdivision that has
received tentative plan approval from the city. The tentative subdivision plan for Shevlin
Meadows shows "C" Drive intersects with an unnamed public street that runs along the western
property boundary of the Shevlin Meadows Subdivision.
In order to provide a functional connection between the private PUD street and "C" Drive, the
applicant will need to demonstrate legal access across the Shevlin Meadows property. If the final
PUD plat is filed before the final subdivision plat for the Shevlin Meadows Subdivision is
approved, the applicant must obtain an access easement across the Shevlin Meadows property to
Shevlin Park Road. If the final Shevlin Meadows Subdivision plat is approved before the
applicant submits the final PUD plat, access would be available along public street rights-of-way
in the adjacent subdivision. As noted above, the applicant's principal is one of the principals of
the company that is developing the Shevlin Meadows Subdivision. Therefore, the Hearings
Officer finds it is feasible for the applicant to obtain the necessary access easement across the
adjacent property if one is needed. The applicant proposes to improve the private PUD street to
28 feet of pavement width, meeting the county's standards for private roads and consistent with
the county's standards for PUD streets. For these reasons, I find the applicant's proposal will
satisfy this approval criterion with imposition of the condition of approval requiring an access
easement.
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2. Chapter 17.36, Design Standards
a. Section 17.36.020, Streets
A. The location, width and grade of streets shall be considered in
their relation to existing and planned streets, topographical
conditions, public convenience and safety, and the proposed
use of land to be served by the streets. The street system shall
assure an adequate traffic circulation system for all modes of
transportation, including pedestrians, bicycles, and
automobiles with intersection angles, grades, tangents, and
curves appropriate for traffic to be carried, considering the
terrain. The subdivision or partition shall provide for the
continuation of the principal streets existing in the adjoining
subdivision or partition or of their property projection when
adjoining property which is not subdivided, and such streets
shall be of a width not less than the minimum requirement for
streets set forth in this chapter.
FINDINGS: As discussed above, the applicant proposes access to the PUD lots from a private
street to be improved to the county's private street standards. This private street would connect
with public streets in the adjacent Shevlin Meadows Subdivision that has received tentative plan
approval from the city. These subdivision streets in turn will connect with Shevlin Park Road, a
designated minor arterial. As discussed above, the applicant will be required as a condition of
approval to demonstrate legal access for the PUD across the adjacent Shevlin Meadows property,
either through an access easement or proof that the streets within the subdivision have been
dedicated to the public with the city's approval of the final subdivision plat. The proposed
private street would be located near the northern and western property boundaries to avoid the
southeastern portion of the property that has been mined. The revised tentative subdivision plan
shows the private PUD street would be "stubbed" at the western property boundary just beyond
the proposed cul-de-sac. The applicant proposes to accommodate bicycles and pedestrians on the
private street. As discussed in the findings above, the Hearings Officer has found the proposed
facilities for bicycles and pedestrians are appropriate for the proposed 44ot PUD. Therefore, I
find the applicant's proposal satisfies this criterion.
B. Streets in subdivisions shall be dedicated to the public, unless
located in a destination resort, planned community or planned
or cluster development, where roads can be privately owned.
Planned developments shall include public streets where
necessary to accommodate present and future through traffic.
FINDINGS: The applicant is proposing a PUD. Therefore, the Hearings Officer finds the
applicant is not required to dedicate to the public the PUD street.
b. Section 17.36.040, Existing Streets
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Whenever existing streets adjacent to or within a tract are of
inadequate width to accommodate the increase in traffic expected
from the subdivision or partition or by the county roadway network
plan, additional rights of way shall be provided at the time of the land
division by the applicant. During consideration of the tentative plan
for the subdivision or partition, the Planning Director or Hearings
Body, together with the Public Works Director, shall determine
whether improvements to existing streets adjacent to or within the
tract, are required. If so determined, such improvements shall be
required as condition of approval for the tentative plan.
Improvements to adjacent streets shall be required where traffic on
such streets will be directly affected by the proposed subdivision or
partition.
FINDINGS: There are no existing streets on or adjacent to the subject property. The record
indicates the city's and county's transportation plans show the location of a planned collector
street, "H-1," along the eastern boundary of the subject property. Both city and county staff have
recommended that applicant be required to dedicate right-of-way for this planned collector. In
response, the applicant argues such a dedication requirement cannot be justified under Dolan v.
City of Tigard, 512 US 374, 114 S Ct 2309, 129 LEd 2d 304 (1994), and its progeny. These
cases hold that exactions such as right-of-way dedication must have a rational nexus with and be
roughly proportional to the anticipated traffic impacts from the proposed development. The
Hearings Officer finds there is no nexus between the traffic impacts from the applicant's
proposed four -lot PUD and the dedication of right-of-way for a planned collector street not
needed for access to the PUD lots. Therefore, I find the applicant will not be required to dedicate
right-of-way for this planned collector.
In their comments on the applicant's proposal, the city and the county's transportation planner
recommended the applicant be required to pay systems development charges (SDC's). In
response, the applicant notes that it and the owner of the adjacent Shevlin Meadows Subdivision
entered into a development agreement with the city through which they will contribute to
system -wide transportation improvements on the west side of Bend as members of the "Westside
Consortium."6 Their contribution consists of constructing a roundabout at the intersection of
Shevlin Park Road and N.W. 14a' Street. The Hearings Officer understands the cost of this
facility far exceeds the amount the applicant would be required to pay in SDC S.7 The
development agreement does not expressly include the subject property since it lies outside the
city limits. Therefore, under the development agreement the applicant's proposal could be
considered a "non -consortium development" that has an independent obligation to mitigate its
traffic impacts. Nevertheless, I find that under the circumstances presented here the applicant
should not be required to provide additional mitigation through the payment of SDC's. That is
6 The development agreement is included in the record as Exhibit "X" to the applicant's post -hearing
submission.
The county's transportation planner calculated the SDC's for the proposed PUD would be
approximately $2,300.
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because the proposed PUD access to Shevlin Park Road will be through the adjacent Shevlin
Meadows Subdivision. In addition, the PUD will add only a small fraction of the total vehicle
trips generated by the subdivisions covered by the development agreement to which the applicant
is a party.
C. Section 17.36.050, Continuation of Streets
Subdivision or partition streets which constitute the continuation of
streets in contiguous territory shall be aligned so that their centerlines
coincide.
FINDINGS: As discussed above, the applicant proposes to connect the private PUD street to,
and to align with the centerline of, "C" Drive, public street approved as part of the city's
tentative subdivision plan approval for the adjacent Shevlin Meadows Subdivision. However, as
also discussed above, if the final subdivision plat for Shevlin Meadows has not received approval
from the city when the applicant submits the final PUD plat for county approval, the applicant
will be required to demonstrate legal access across the Shevlin Meadows property to Shevlin
Park Road through an access easement. In either case, because the private PUD street ultimately
will be connected to "C" Drive, the Hearings Officer finds the applicant will be required as a
condition of approval to align the centerlines of the private street and "C" Drive.
d. Section 17.36.060, Minimum Right of Way and Roadway Width
The street right of way and roadway surfacing widths shall be in
conformance with standards and specifications set forth in Chapter
17.48 of this title.
FINDINGS: The applicant proposes a private roadway width of 28 feet which the Hearings
Officer has found is consistent with both the county's private street design standards in the
subdivision ordinance and the PUD street standards in Chapter 19.104. The applicant will be
required as a condition of approval to construct the private PUD street in conformance with the
county's private street standards.
e. Section 17.36.080, Future Extension of Streets
When necessary to give access to or permit a satisfactory future
division of adjoining land, streets shall be extended to the boundary of
the subdivision or partition.
FINDINGS: As discussed above, in response to comments from the road department, the
applicant has agreed to extend the private PUD street to the western property boundary in order
to facilitate future extension of this street to adjacent parcels designated Urban Reserve and
zoned UAR-10.
E Section 17.36.120, Street Names
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Except for extensions of existing streets, no street name shall be used
which will duplicate or be confused with the name of an existing street
in a nearby city or in the County. Street names and numbers shall
conform to the established pattern of the County.
FINDINGS: The applicant will be required as a condition of approval to obtain approval from
the county for the name of the private PUD street.
g. Section 17.36.130, Sidewalks
A. Within an urban growth boundary, sidewalks shall be installed
on both sides of a public road or street any in any special
pedestrian way within the subdivision or partition, and along
any collectors and arterials improved in accordance with the
subdivision or partition.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject
property is located outside the Bend UGB.
h. Section 17.36.140, Bicycle, Pedestrian and Transit Requirements
A. Pedestrian and Bicycle Circulation within Subdivision
1. The tentative plan for a proposed subdivision shall
provide for bicycle and pedestrian routes, facilities and
improvements within the subdivision and to nearby
existing or planned neighborhood activity centers, such
as schools, shopping areas and parks in a manner that
will (a) minimize such interference from automobile
traffic that would discourage pedestrian or cycle travel
for short trips, (b) provide a direct route of travel
between destinations within the subdivision and existing
or planned neighborhood activity centers, and (c)
otherwise meet the needs of cyclists and pedestrians,
considering the destination and length of trip.
FINDINGS: The applicant has proposed to improve the private PUD street with a pavement
width of 28 feet with 4 -foot striped bike paths and 2 -foot gravel shoulders on both sides as
contemplated by the county's minimum private road standards in the subdivision ordinance. The
record indicates there are no nearby activity centers, shopping areas, schools or parks. Therefore,
the Hearings Officer finds the applicant will not be required to extend bicycle or pedestrian paths
outside the PUD. In their comments on the applicant's proposal, the county's transportation
planner and the city recommended that the applicant be required to dedicate a public access trail
to facilitate bicycle and pedestrian access from Shevlin Park Road to Skyliners Road. However,
the map submitted with the county transportation planner's comments indicates the "planned
trail" is not located on the subject property. In any case, planning staff and the applicant state,
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and I concur, that there is no rational nexus between the impacts from the proposed PUD and the
need for a trail, as required under Dolan v. City of Tigard, cited above. Therefore, I find the
applicant's proposal satisfies this criterion.
2. Subdivision Layout
a. Cul-de-sacs or dead-end streets shall be allowed
only where, due to topographical or
environmental constraints, the size and shape of
the parcel, or a lack of through street
connections in the area, a street connection is
determined by the Planning Director or
Hearings Body to be infeasible or inappropriate.
In such instances, where applicable and feasible,
there shall be a bicycle and pedestrian
connection connecting the ends of cul-de-sacs to
streets or neighborhood activity centers on the
opposite sides of the block.
FINDINGS: The applicant's revised tentative plan shows the private PUD road "stubbed" at the
western property boundary just west of a cul-de-sac. The Hearings Officer concurs with staff that
given the lack of through street connections to the parcels to the west, a cul-de-sac is warranted
under this criterion.
(b) Bicycle and pedestrian connections between
streets shall be provided at mid -block where the
addition of a connection would reduce the
walking or cycling distance to an existing or
planned neighborhood activity center by 400 feet
and by at least 50% over other available routes.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant is
proposing one private street within the PUD, and because the PUD will not include a planned
neighborhood activity center and there is no evidence such a center exists in the surrounding
neighborhood.
(c) Local roads shall align and connect with
themselves across collectors and arterials.
Connections to existing or planned streets and
undeveloped properties shall be provided at no
greater than 400 foot intervals.
(d) Connections shall not be more than 400 feet long
and shall be as straight as possible.
FINDINGS: The Hearings Officer finds these criteria are not applicable because the applicant
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proposes to serve the PUD lots with a private street and not a public "local road."
3. Facilities and Improvements
(a) Bikeways may be provided by either a separate
paved path or an on -street bike lane, consistent
with the requirements of this title.
(b) Pedestrian access may be provided by sidewalks
or a separate paved path, consistent with the
requirements of this tide.
(c) Connections shall have a 20 -foot right of way
with at least a 10 -foot usable surface.
FINDINGS: As discussed above, the applicant proposes a 28 -foot -wide private street with 4 -
foot striped bike paths and 2 -foot gravel shoulders on each side that will accommodate bicycles
and pedestrians. The Hearings Officer finds Subsection (c) is not applicable because the
applicant's proposal does not include bike or pedestrian path connections.
L Section 17.36.160, Easements
A. Utility easements. Easements shall be provided along property
lines when necessary for the placement of overhead or
underground utilities, and to provide the subdivision or
partition with electric power, communication facilities, street
lighting, sewer lines, water lines, gas lines, or drainage. Such
easements shall be labeled "Public Utility Easements" on the
tentative and final plat.
B. Drainage. ff a tract is traversed by a watercourse such as a
drainage way, channel or stream there shall be provide a storm
water easement or drainage right of way conforming
substantially with the lines of the watercourse, or in such
further width as will be adequate for the purpose. Streets or
parkways parallel to major watercourses or drainageways may
be required.
FINDINGS: The Hearings Officer finds the applicant will be required to show all required
utility easements on the final subdivision plat and to label them "public utility easements" as a
condition of approval. I find Subsection (B) is not applicable because the site is not traversed by
a watercourse.
j. Section 17.36.180, Frontage
A. Each lot or parcel shall abut upon a public road for at least 50
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feet, except for lots or parcels fronting on the bulb of a
cul-de-sac, then the minimum frontage shall be 30 feet, and
except for partitions off of U.S. Forest Service or Bureau of
Land Management roads.
B. All side lot lines shall be at right angles to street lines or radial
to curved streets wherever practical.
FINDINGS: The applicant's proposal satisfies these criteria because all four lots will have at
least 50 feet of frontage on the proposed private street and all side lot lines are at right angles to
the street lines or radial to the cul-de-sac bulb.
L Section 17.36.210, Solar Access Performance
A. As much solar access as feasible shall be provided each lot or
parcel in every new subdivision or partition, considering
topography, development pattern and existing vegetation. The
lot lines of lots or parcels, as far as feasible, shall be oriented to
provide solar access at ground level at the southern building
line two hours before and after the solar zenith from
September 22nd to March 21st. If it is not feasible to provide
solar access to the southern building line, then solar access, if
feasible shall be provided at 10 feet above ground level at the
southern building line two hours before and after the solar
zenith from September 22nd to March 21st, and three hours
before and after the solar zenith from March 22nd to
September 21st.
B. This solar access shall be protected by solar height restrictions
on burdened properties for the benefit of lots or parcels
receiving the solar access.
C. If the solar access for any lot or parcel, either at the southern
building line or at 10 feet above the southern building line,
required by this performance standard is not feasible,
supporting information must be filed with the application.
FINDINGS: The Hearings Officer finds the large size of the proposed PUD lots — 2 to 4 acres —
will be adequate to maximize solar access for all dwellings.
1. Section 17.36.220, Underground Facilities
Within an urban growth boundary, all permanent utility services to
lots or parcels in a subdivision or partition shall be provided from
underground facilities; provided, however, the Hearings Body may
allow overhead utilities if the surrounding area is already served by
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overhead utilities and the proposed subdivision or partition would
create less than ten lots. The subdivision or partition shall be
responsible for complying with requirements of this section and shall:
A. Obtain a permit from the Department of Public Works for
placement of all underground utilities.
B. Make all necessary arrangements with the utility companies
and other persons or corporations affected by the installation
of such underground utilities in accordance with the rules and
regulations of the State Public Utility Commission.
C. All underground utilities, sanitary sewers and storm drains
installed in streets shall be constructed prior to the surfacing of
such streets to the extent practicable, and sanitary sewers shall
be placed to such length as will obviate the necessity for
disturbing the street improvements when service connections
are made.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject
property is located outside the Bend UGB.
M. Section 17.36.250, Lighting
Within an urban growth boundary, the subdivider shall provide
underground wiring to the county standards, and a base for any
proposed ornamental street lights at locations approved by the
affected utility company.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject
property is located outside the Bend UGB.
n. Section 17.36.260, Fire Hazards
Whenever possible, a minimum of two points of access to the
subdivision or partition shall be provided to provide assured access
for emergency vehicles and ease resident evacuation.
FINDINGS: The applicant argues, and the Hearings Officer agrees, that because of the location
and topography of the subject parcel two access points are not practical. As discussed above, I
have found the cul-de-sac proposed near the terminus of the private PUD street appears of
adequate size to allow a fire truck to turn around. However, to assure emergency vehicle access
and emergency ingress and egress for PUD residents, I have found the applicant will be required
as a condition of approval and prior to submitting a final PUD plat for approval to provide to the
Planning Division written documentation that the Bend Fire Department finds this cul-de-sac of
adequate size. As also discussed above, the applicant has stated its intention to provide fire
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protection either through a contract with the fire department or through annexation to the Bend
Rural Fire Protection District #2. I find either method is likely to be successful given the subject
property's location adjacent to the city limits. The Staff Report recommends that I require as a
condition of approval that the applicant either annex the subject property into a fire district or
obtain a fire service contract with the Bend Fire Department. I find I lack authority to condition
this approval on either requirement inasmuch as there are no provisions in Title 17 that establish
fire protection as a condition of subdivision approval.
o. Section 17.36.280, Water and Sewer Lines
Where required by the applicable zoning ordinance, water and sewer
lines shall be constructed to county and city standards and
specifications. Required water mains and service lines shall be
installed prior to the curbing and paving of new streets in all new
subdivision or partitions.
FINDINGS: The Hearings Officer finds this criterion is not applicable because Title 19 does not
require water and sewer lines in the UAR 10 Zone.
3. Chapter 17.44, Park Development
a. Section 17.44.010, Dedication of Land
.
D. DCC 17.44.010 shall not apply to the subdivision or partition
of lands located within the boundaries of the Bend Metro Park
and Recreation District or the Central Oregon Park and
Recreation District.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the record
indicates the subject property is located within the boundaries of the Bend Metro Park and
Recreation District.
4. Chapter 17.48, Design and Construction Specifications
a. Section 17.48.090, Intersections
A. All intersections shall be planned for through traffic on the
street with the greatest projected average daily traffic (ADT).
The side street shall be at right angles to the main street.
Horizontal and vertical alignment for an intersection shall be
as shown in Drawing No. D-6.
B. Intersecting streets, including driveways to commercial and
industrial properties, shall be separated by at least. the
following distances when the through road is:
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3. Local, 100 feet... .
To be measured between the intersecting centerlines of the
streets or driveways.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the proposed
PUD does not include intersecting streets or driveways to commercial or industrial properties.
b. Section 17.48.100, Minimum Right of Way Width
The minimum right of way width is 60 feet unless specified otherwise
in Table A (on in any right of way specifications set forth for a
particular zone in a zoning ordinance).
FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant
proposes to serve the PUD with a private street and this standard applies to right-of-way for
public streets.
C. Section 17.48.130, Road Names
All roads shall be named in conformance with the provisions of the
Deschutes County uniform road naming system set forth in Deschutes
County Code Title 16.
FINDINGS: As discussed above, the Hearings Officer has found that as a condition of approval
the applicant will be required to obtain county approval of the name for the PUD street before
submitting the final subdivision plat for approval.
d. Section 17.48.140, Bikeways
FINDINGS: The applicant proposes to provide for bicycles on the private street rather than
through separate bikeways. Therefore, the Hearings Officer finds this section is not applicable.
e. Section 17.48.160, Road Development Requirements -Standards
A. Subdivision Standards. All roads in new subdivisions shall
either be constructed to a standard acceptable for inclusion in
the county maintained system or the subdivision shall be part
of a special road district or a homeowners association in a
planned unit development.
B. Improvements of Public Rights of Way.
1. The developer of a subdivision or partition will be
required to improve all public ways that are adjacent or
within the land development.
2. All improvements within public rights of way shall
conform to the improvement standards designated in
this title for the applicable road classification, except
where a zoning ordinance sets forth different standards
for a particular zone.
FINDINGS: The applicant proposes that the PUD lots be served by a two-lane private street.
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The applicant has proposed to construct this private street to the county's minimum standards for
private roads in Table A to the subdivision ordinance. The applicant proposes that the private
street be maintained by an owner's association until such time as the subject property is annexed
into the Bend UGB and the street is dedicated to the city. Because the applicant is proposing a
private street and not a public right-of-way, I find Subsection (B) of this section is not applicable.
C. Primary Access Roads. The primary access road for any new
subdivision shall be improved to the applicable standard set
forth in Table A (or the applicable standard set forth in a
zoning ordinance). The applicable standard shall be
determined with reference to the road's classification under the
relevant transportation plan. For the purposes of DCC
17.48.160 a primary access road is a road leading to the
subdivision from an existing paved county, city or state
maintained road that provides the primary access to the
subdivision from such a road.
FINDINGS: The applicant proposes that the primary access road to the PUD be a two-lane
private street constructed to the county's standards for private streets with a pavement width of
28 feet and a maximum grade of 12 percent. The Hearings Officer finds the applicant will be
required as a condition of approval to improve the private street in accordance with these
standards.
E. Stubbed Roads. Any proposed road that terminates at a
development boundary shall be constructed with a paved cul-
de-sac bulb.
F. Cul-de-sacs. Cul-de-sacs shall have a length of, less than 600
feet, unless a longer length is approved by the applicable fire
protection district, and more than 100 feet from the center of
the bulb to the intersection with the main road. The maximum
grade on the bulb shall be four percent.
FINDING: The applicant's revised tentative subdivision plan shows the private PUD street
"stubbed" at the western property boundary just beyond a cul-de-sac. The length of the cul-de-
sac exceeds 600 feet. Staff states the applicant should be required to apply for a variance to this
standard. As discussed above, the Hearings Officer has found I have authority to approve the
proposed PUD with a cul-de-sac length exceeding 600 feet. The fire department commented on
this application only to state the property is outside its jurisdiction. Therefore, there is no
evidence in the record as to whether the fire department would approve the proposed cul-de-sac.
It is my understanding that a cul-de-sac exceeding 600 feet in length can receive fire department
approval if an adequate turnaround for emergency vehicles is provided. The revised tentative
plan shows a large -radius cul-de-sac that appears large enough to allow a fire truck to turn
around. However, I find the applicant will be required as a condition of approval and prior to
submission of the final subdivision plat to provide to the Planning Division written
documentation from the fire department that the length and terminus of the proposed cul-de-sac
are adequate to allow emergency vehicle access.
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f. Section 17.48.180, Private Roads
The following minimum road standards shall apply for private roads:
A. The minimum paved roadway width shall be 24 feet in planned
unit developments and cluster developments containing 20 or
more residential units when separate paved bicycle/pedestrian
ways are provided in the development. Where separate paved
bicycle/pedestrian ways are not provided in such
developments, the minimum paved roadway width shall be 28
feet, including four -foot wide bike lanes, and two -foot wide
gravel shoulders;
B. Minimum radius of curvature, 50 feet;
C. Maximum grade, 12 percent;
D. At least one road name sign will be provided at each
intersection for each road;
E. A method for continuing road maintenance acceptable to the
County;
F. Private road systems shall include provisions for bicycle and
pedestrian traffic. Shoulder bike lanes shall be a minimum of
four feet wide, paved and striped, with no on -street parking
allowed within the bikeway. When private roads are developed
to a width of less than 28 feet, bike paths constructed to
County standards shall be required.
FINDINGS: As discussed above, the applicant proposes access to the PUD lots by a private
street improved to 28 feet with pavement width with 4 -foot striped bike paths and 2 -foot gravel
shoulders, with a grade of less than 10 percent. The Hearings Officer has found this pavement
width will be adequate to accommodate both vehicles and bicycles on the street. Therefore, I find
the applicant's proposal satisfies these standards.
IV. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby
APPROVES the applicant's proposed zone change from SM to UAR 10, and conditional use
permit and tentative subdivision plan, to establish a 4 -lot PUD on the subject property,
SUBJECT TO THE FOLLOWING CONDITIONS OF APPROVAL:
1. This approval is based upon the revised tentative subdivision plan dated February 12,
2100, and the applicant's application, burden of proof, post -hearing evidentiary submittal
and final arguments. Any substantial change to the approved tentative plan will require
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additional land use applications, review and approval.
2. The applicant/owner shall prepare the final subdivision plat in accordance with the
requirements of Chapter 17.24 of Title 17 of the Deschutes County Code and ORS
Chapter 92. The final plat shall be prepared by a licensed land surveyor and shall show
all property comers and public rights-of-way and the exact size for each lot.
3. The applicant/owner shall show all existing easements of record and all required public
utility easements on the final subdivision plat. Utility easements shall be labeled "public
utility easements" on the plat.
4. Prior to submitting the final subdivision plat for approval, the applicantlowner shall
provide to the Planning Division written documentation that there is legal access from the
subject property to Shevlin Park Road across the adjacent Shevlin Meadows Subdivision
property. This access shall be documented either with a recorded access easement across
the property, or with a copy of the city's decision approving the final subdivision plat for
Shevlin Meadows Subdivision showing the dedication to the public of all Shevlin
Meadows Subdivision streets.
5. Prior to the filing of the final subdivision plat for approval, the applicant/owner shall
demonstrate that each lot has received an approved septic site evaluation.
6. The applicant/owner shall pay all ad valorem taxes, fees, and other charges that have
become a lien upon the entire parcel prior to final subdivision plat approval. The final
plat shall be signed by the County Assessor and the County Treasurer.
7. The applicant/owner shall improve the private road providing access to the PUD in
accordance with the county's standards for private roads set forth in Section 17.48.180 of
the Deschutes County Code. Specifically, the road shall be improved with 28 feet of 0-9
or 2 inches of AC pavement over a 6 inch aggregate base with a maximum grade not to
exceed 12%. The private road also shall have 4 -foot striped bike lanes and 2 -foot gravel
shoulders on each side.
8. The applicant/owner shall align the centerline of the private PUD street with the
centerline of "C" Drive shown on the approved tentative subdivision plan for the adjacent
Shevlin Meadows Subdivision.
9. The applicant/owner -shall obtain county approval of the name of the private PUD street
prior to submitting the final subdivision plat for approval.
10. The applicant/owner shall form an owners association to maintain the private road within
the PUD and any private access across the adjacent Shevlin Meadows Subdivision prior
to the filing of the final subdivision plat. Prior to filing the final subdivision plat, the
applicant/owner shall submit to Deschutes County Legal Counsel a copy of the proposed
owners association.
.11. The applicantlowner shall obtain approval from the County Surveyor for the subdivision
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name "Anderson Acres" prior to submitted the final subdivision plat for approval.
12. The applicant/owners shall submit a Title Report with the final plat.
13. The applicant/owner shall install all required utilities underground and to the
specifications of the utility providers prior to final approval of the plat.
14. The applicant/owner shall provide to the Planning Division written documentation from
the Bend Fire Department that the proposed cul-de-sac will provide adequate access for
fire apparatus and adequate emergency ingress and egress for PUD residents. This
documentation shall be provided prior to final plat approval.
V. DURATION OF APPROVAL:
15. The applicant/owner shall submit a final subdivision plat in conformance with the
approved tentative plan within two (2) years of the date this decision becomes final, or
shall obtain an extension of time pursuant to Section 22.36.010(C) of the Deschutes
County Code, or this approval shall be void.
Dated this90 6—" day of May, 2001.
Mailed this 3—'day of May, 2001.
Karen H. Green, Hearings Officer
THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS
TIMELY APPEALED.
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