HomeMy WebLinkAboutOrdinances 015-016 - OWW ExceptionDeschutes County Board of Commissioner`
1300 NW Wall St., Suite 200, Bend, OR 97701-196(
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.or
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of April 5, 2010
Please see directions for completing this document on the next page.
DATE: 3/2/10
FROM: Will Groves
CDD x6518
TITLE OF AGENDA ITEM:
A de novo hearing on Ordinance 2010-015, Amending DCC 23.120.170 and Ordinance 2010-106,
Amending DCC 18.60.090 to Adopt a "Reasons" Goal Exception to Add Wireless Telecommunica: ions
Facilities to the List of Uses Permitted in the Oregon Water Wonderland Unit 2 Sewer District Lim tted
Use Combining Zone. File No. PA -09-4.
PUBLIC HEARING ON THIS DATE? Yes
BACKGROUND AND POLICY IMPLICATIONS:
AT&T Mobility requests approval of a plan amendment and a "reasons" goal exception to add wirfless
telecommunications facilities to the list of uses permitted in the Oregon Water Wonderland Unit 2
Sewer District Limited Use Combining Zone.
In 2003, the Board approved a "reasons" exception to Goal 4 along with a plan amendment and zo: ie
change from F-2 to RR -10 and new LU Zone to facilitate the expansion of the OWW Unit 2 sewag e
treatment facility onto the subject property. This application requests a plan amendment and goal
exceptions to add wireless telecommunication facilities as a use conditionally permitted within the LU
Zone on the subject property.
The addition of this use, in and of itself, would not require exceptions to Goals 4 and 11 inasmuch as
OAR 660-006-0025(4)(h) permits television, microwave and radio communication facilities and
transmission towers on forest -zoned land, and wireless telecommunication facilities are not "public
facilities" as defined in OAR 660-11-0005(5) implementing Goal 11. Nevertheless, OAR 660-004-
0018(4)(b) states that when a local government changes the types or intensities of uses or public
facilities and services within an area that previously received a "reasons" exception, a new "reasons"
exception is required. The Hearings Officer found a new "reasons" exception is required here because
adding wireless telecommunications facilities would be a change to the uses currently permitted in the
LU Zone on the subject property.
The Hearings Officer found the application met, or could meet, all relevant criteria and approved t he
applicant's proposal, in a decision dated February 9, 2010.
Under 22.28.030(C) a plan amendment and zone change requiring a goal exception shall be heard de
novo before the Board of County Commissioners without the necessity of filing an appeal, regard ess of
the determination of the Hearings Officer.
Because the proposed zone change is dependent upon approval of the proposed plan amendment, and
plan amendments are not subject to the 150 -day period for issuance of a final local land use decision
under ORS 215.427, this application is not subject to the 150 -day period.
FISCAL IMPLICATIONS:
None.
RECOMMENDATION & ACTION REQUESTED:
Conduct de novo hearing.
ATTENDANCE: BOCC, Legal, Will Groves
DISTRIBUTION OF DOCUMENTS:
BOCC, Will Groves
March 8, 2010
Community Development Department
Planning Division Building Safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or us/cdd/
MEMORANDUM
To: Deschutes Board of County Commissioners
From: Will Groves, Senior Planner
Subject: A de novo hearing on Ordinance 2010-015, Amending DCC 23.120.170
and Ordinance 2010-106, Amending DCC 18.60.090 to Adopt a
"Reasons" Goal Exception to Add Wireless Telecommunications Facilities
to the List of Uses Permitted in the Oregon Water Wonderland Unit 2
Sewer District Limited Use Combining Zone. File No. PA -09-4.
BACKGROUND
AT&T Mobility requests approval of a plan amendment and a "reasons" goal exception to
add wireless telecommunications facilities to the list of uses permitted in the Oregon
Water Wonderland Unit 2 Sewer District Limited Use Combining Zone (DCC 18.60.090).
In 2003 the board approved a "reasons" exception to Goal 4 along with a plan
amendment and zone change from F-2 to RR -10 and new LU Zone to facilitate the
expansion of the OWW Unit 2 sewage treatment facility onto the subject property. This
application requests a plan amendment and goal exceptions to add wireless
telecommunication facilities as a use conditionally permitted within the LU Zone on the
subject property.
The addition of this use, in and of itself, would not require exceptions to Goals 4 and 11
inasmuch as OAR 660-006-0025(4)(h) permits television, microwave and radio
communication facilities and transmission towers on forest -zoned land, and wireless
telecommunication facilities are not "public facilities" as defined in OAR 660-11-0005(5)
implementing Goal 11. Nevertheless, OAR 660-004-0018(4)(b) states that when a local
government changes the types or intensities of uses or public facilities and services
within an area that previously received a "reasons" exception, a new "reasons" exception
is required. The Hearings Officer found a new "reasons" exception is required here
Quality Services Performed with Pride
because adding wireless telecommunications facilities would be a change to the uses
currently permitted in the LU Zone on the subject property.
The Hearings Officer found the application met, or could meet, all relevant criteria and
approved the applicant's proposal, in a decision dated February 9, 2010.
Under 22.28.030(C) a plan amendment and zone change requiring a goal exception
shall be heard de novo before the Board of County Commissioners without the necessity
of filing an appeal, regardless of the determination of the Hearings Officer.
Because the proposed zone change is dependent upon approval of the proposed plan
amendment, and plan amendments are not subject to the 150 -day period for issuance of
a final local land use decision under ORS 215.427, this application is not subject to the
150 -day period.
STAFF DISCUSSION
Staff concurs with the Hearings Officer decision. No public comment has been received
as of the writing of this memo.
Staff notes that this plan amendment and zone change only adds cell towers to the list of
uses potentially allowed on the subject property and the actual approval of a cell tower
on the subject property will require a subsequent conditional use application.
The subject property is currently encumbered with a conservation easement, required as
a condition of site plan approval for the development of the sewage treatment facility,
that prohibits structures not related to the sewage treatment facility on the property. The
Hearings Officer notes that this easement will need to be modified to allow a cell tower
on the subject property.
DOCUMENTATION
A copy of the Hearings Officer decision, existing conservation easement, and proposed
changes to Title 18 and 23 are attached for your review.
SCHEDULE
This item is scheduled for a de novo hearing at 10 A.M. on April 5, 2010. A work
session is scheduled 1:30 P.M. on March 31, 2010. Please feel free to contact me with
any questions or concerns.
PRELIMINARY STATEMENT FOR A
DE NOVO PUBLIC HEARING BEFORE
THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
I. INTRODUCTION
A. This is a de novo hearing on a proposed goal exception to the Statewide Planning
Goals 4 and 11. The County File Number is PA -09-4.
B. In those applications, the applicant requested approval of a plan amendment and a
"reasons" goal exception to add wireless telecommunications facilities to the list oi'
uses permitted in the Oregon Water Wonderland Unit 2 Sewer District Limited Use
Combining Zone.
C. These applications were previously considered by the Hearings Officer after a
public hearing was held on January 5, 2010. Evidence and testimony were
received at that hearing. The Hearings Officer recommended the Board approve
the exception to Goals 4 and 11, to add wireless telecommunications facilities to
the list of uses permitted in the Oregon Water Wonderland Unit 2 Sewer District.
Limited Use Combining Zone.
D. The Board takes notice of the record below and includes that record as part o''
the record before us.
II. BURDEN OF PROOF AND APPLICABLE CRITERIA
A. The applicants have the burden of proving that they are entitled to the proposal
sought.
B. The standards applicable to the application before us are listed in the Hearings
Officer's Decision. Copies of this decision are available near the door.
C. Testimony and evidence at this hearing must be directed toward the criteria, as
well as toward any other criteria in the comprehensive land use plan of the County
or land use regulations which any person believes apply to this decision.
D. Failure on the part of any person to raise an issue with sufficient specificity to
afford the Board of County Commissioners and parties to this proceeding an
opportunity to respond to the issue precludes appeal to the Land Use Board of
Appeals on that issue. Additionally, failure of the applicant to raise constitutional o
other issues relating to the approval with sufficient specificity to allow the Board tc ,
respond to the issue precludes an action for damages in circuit court.
III. HEARINGS PROCEDURE
A. Evidence to be reviewed by the Board.
The Board's decision on this application will be based upon the record before the
Hearings Officer, the Hearings Officer's decision, the Staff Report and the
testimony and evidence presented at this hearing.
IV. ORDER OF PRESENTATION
A. The hearing will be conducted in the following order.
1. The staff will give a report.
The applicant will then have an opportunity to offer testimony and evidence.
2. Proponents of the proposal then the opponents will then be given a chance
to testify and present evidence.
3. The applicants will then be allowed to present rebuttal testimony but may
not present new evidence.
4. At the Board's discretion, if the applicants presented new evidence on
rebuttal, opponents may be recognized for a rebuttal presentation.
5. At the conclusion of this hearing, the staff will be afforded an opportunity to
make any closing comments.
6. The Board may limit the time period for presentations.
B. If anyone wishes to ask a question of a witness, the person may direct the
question to the Chair during that person's testimony, or, if the person has already
testified, after all other witnesses have testified but before the Applicant's rebuttal.
The Chair is free to decide whether or not to ask such questions of the witness.
C. Continuances
The grant of a continuance or record extension shall be at the discretion of the
Board.
1. If the Board grants a continuance, it shall continue the public hearing to a
date certain.
D. If, at the conclusion of the hearing, the Board leaves the record open for additional
written evidence or testimony, the record shall be left to a date certain for submittal
2
of new written evidence or testimony and at least seven additional days for
response to the evidence received while the record was held open. Written
evidence or testimony submitted during the period the record is held open shall be
limited to evidence or testimony that rebuts previously submitted evidence or
testimony.
E. If the hearing is continued or the record left open, the applicant shall also be
allowed a period to a date certain after the record is closed to all other parties to
submit final written arguments but no new evidence in support of the application.
V. PRE -HEARING CONTACTS, BIASES, CONFLICTS OF INTERESTS
A. Do any of the Commissioners have any ex -parte contacts, prior hearing
observations; biases; or conflicts of interest to declare? If so, please state their
nature and extent.
B. Does any party wish to challenge any Commissioner based on ex -parte contacts,
biases or conflicts of interest?
(Hearing no challenges, I shall proceed.)
(Staff Report)
3
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Adding Deschutes County Code
23.120.170, to Adopt an Exception to Goal 4 and 11
and Declaring and Emergency.
ORDINANCE NO. 2010-015
WHEREAS, AT&T Mobility proposed a "reasons" exception to Goals 4 and 11 and a Plan Amendment
to Deschutes County Code ("DCC") Chapter 23.120, Goal Exception Statement; and
WHEREAS, after notice was give in accordance with applicable law, a public hearing was held on
January 5, 2010 before the Deschutes County Hearings Officer and, on February 9, 2010 the Hearings Officer
recommended approval of the zone change; and
WHEREAS, after notice was give in accordance with applicable law, a public hearing was held on A )ril
5, 2010 before the Board of County Commissioners ("Board"), and
WHEREAS, the Board, after review conducted in accordance with applicable law, approved the Goal
Exception to Goals 4 and 11; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. DCC Section 23.120.170, Oregon Water Wonderland Unit 2 Sewer
District, is amended to read as described in Exhibit "A", with new language underlined and deleted language
set forth in st kcthreugh , to add Wireless Telecommunications Facilities as a use allowed in the exception area
described in Exhibit "B" with both exhibits attached and incorporated by reference herein."
Section 2. FINDINGS. The Board adopts as its findings in support of this decision Exhibit "C," and
incorporated by reference herein.
///
Page 1 of 2 - ORDINANCE NO. 2010-015
Section 4. EMERGENCY. This Ordinance being necessary for the public peace, health and safety, an
emergency is declared to exist and this Ordinance takes effect on its passage.
Dated this of , 2010 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
DENNIS R. LUKE, Chair
ALAN UNGER, Vice Chair
Recording Secretary TAMMY BANEY, Commissioner
Date of 15` Reading: day of , 2010.
Date of 2°d Reading: day of , 2010.
Record of Adoption Vote:
Commissioner Yes No Abstained Excused
Dennis R. Luke
Alan Unger
Tammy Baney
Effective date: day of , 2010.
Page 2 of 2 - ORDINANCE NO. 2010-015
23.120.170. Oregon Water Wonderland Unit 2 Sewer District.
In conjunction with the Board's approval of County file nos. PA-02-5/ZC-02-3, as amended by PA -
09 -4, a "reasons" exception to Statewide Planning Goals 4, Forest Lands, and 11, Public Facilities
& Services, was taken for certain property. The plan amendment changed the plan designation to
Rural Residential Exception Area and the zone change changed the zoning to Rural Residential with
a Limited Use Combing Zone to allow only the uses approved through the Board's decision on PA-
02-5/ZC-02-3, as amended by PA -09-4.. Reasons justifying why the state policies embodied in
Goals 4 and 11 should not apply in this situation are set forth in Exhibit "C" to Ordinance 2003-012
as amended by Ordinance 2010-015, which findings are incorporated herein by reference.
(Ord, 2010-015 §1, 2010; Ord. 2003-015 §1, 2003)
1 Chapter 23.120 1
Page 1 of 1 - Exhibit A to Ordinance 2010-015
(4/2009)
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Deschutes County Code
18.60.090, to add Wireless Telecommunications Facilities as
a Conditional Use and Declaring and Emergency.
*
*
ORDINANCE NO. 2010-016
WHEREAS, AT&T Mobility proposed a "reasons" exception to Goals 4 and 11 and a Han Amendm int
to Deschutes County Code ("DCC") Chapter 23.120, Goal Exception Statement; and
WHEREAS, an amendment to DCC 18.06.090 is necessary to implement the goal exception adopted in
Ordinance 2010-015; and
WHEREAS, after notice was give in accordance with applicable law, a public hearing was held on
January 5, 2010 before the Deschutes County Hearing Officer and, on February 9, 2010 the Hearings Officer
recommended approval of the goal exception and text amendment; and
WHEREAS, the Board of County Commissioners considered this matter after a duly noticed public
hearing on April 5, 2010 and approved the goal exception and text amendment; now therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. DCC 18.60.090, Oregon Water Wonderland Unit 2 Sewer District Limited
Use Combining Zone is amended to read as described in Exhibit "A", attached and incorporated by reference
herein, with new language underlined and deleted language set forth in strip.
Section 2. FINDINGS. The Board adopts as its findings in support of this decision, Exhibit "I',",
attached to Ordinance 2010-015 and incorporated by reference herein.
///
PAGE 1 OF 2 - ORDINANCE NO. 2010-016
Section 5. EMERGENCY. This Ordinance being necessary for the public peace, health and safety, an
emergency is declared to exist and this Ordinance takes effect on its passage.
Dated this of , 2010 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
DENNIS R. LUKE, Chair
ALAN UNGER, Vice Chair
Recording Secretary TAMMY BANEY, Commissioner
Date of 1st Reading: day of , 2010.
Date of 2nd Reading: day of , 2010.
Record of Adoption Vote:
Commissioner Yes No Abstained Excused
Dennis R. Luke
Alan Unger
Tammy Baney
Effective date: day of , 2010.
PAGE 2 OF 2 - ORDINANCE NO. 2010-016
18.60.090. Oregon Water Wonderland Unit 2 Sewer District Limited Use Combining Zone.
A. Uses Permitted Outright. In the Oregon Water Wonderland Unit 2 Sewer District Limited Use
Combining Zone, uses shall be permitted as follows, the following uses and their accessory uses
are allowed outright:
a. Agricultural use as defined in DCC Title 18.
b. Propagation or harvesting of a forest product.
c. Ground application of treated effluent.
B. Uses Permitted Subject to Site Plan Review. In the Oregon Water Wonderland Unit 2 Sewer
District Limited Use Combining Zone, uses shall be permitted as follows, the following uses
and their accessory uses are permitted subject to applicable provisions of DCC 18.116,
Supplementary Provisions, and DCC 18.124, Site Plan Review:
a. Sewage Treatment Facility.
b. Treated Effluent Ponds.
C. Uses Permitted Conditionally. In the Oregon Water Wonderland Unit 2 Sewer District
Limited Use Combining Zone, Wireless telecommunications facilities, exgt those facilities
meeting the requirements of DCC 18.116.250(A) or (B), and their accessory uses are
permitted conditionally subject to the applicable provisions of DCC 18.128, Conditional
Uses.
J. Definitions. For the purpose of this section, the use Sewage Treatment Facility includes any_
buildings or structures associated with the operations of a sewer treatment plant including, but
not limited to, treatment station or pump station.
,E. Special Conditions. Pursuant to DCC Section 23.120.17.0, an application for site plan review to
establish a sewage treatment facility must include a conservation easement and a plan of
implementing the conservation easement that provides standards and implementation methods
for managing the conservation easement, along with a recorded road maintenance agreement
between Oregon Water Wonderland Unit 2 Sewer District and the Beaver Special Road
District, with the site plan review application. The road maintenance agreement between the
applicant and the Beaver Special Road District shall include Oregon Water Wonderland Unit 2
Sewer District's pro rata share for the maintenance cost of Foster Road through Section 25.
(Ord. 2010-0161, 2010; Ord, 2003-012 §1, 2003)
Chapter 18.60 1 (4/2009)
Page 1 of 1 - Exhibit A to Ordinance 2010-016
Deleted: C
Deleted: D
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Community Development Department
Planning Division Building Safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
CERTIFICATE OF MAILING
FILE NUMBER: PA -09-4
DOCUMENTS MAILED: Hearings Officer's Decision
MAP AND TAX LOT NUMBER(S): 20-10 as Tax Lot 1900
LOOKUP AREA: 250 Feet
I certify that on the 9th day of February, 2010, the attached notice/report, dated February
9th 2010, was mailed by first class mail, postage prepaid, to the person(s) and address(es) set
forth on the attached list.
Dated this 9th day of February, 2010.
COMMUNITY DEVELOPMENT DEPARTMENT
By: Bend Mailing Services
AT&T Mobility, c/o Joe Riddle
Hearings Officer Karen Green
5501 NE 109th Court, Suite A-2
Vancouver, WA 98622
Oregon Water Wonderland
Myles A Conway
Unit II Sanitary District
Schwabe, Williamson & Wyatt
55555 Foster Road
360 SW Bond Street, Suite 400
Bend, OR 97707
Bend, OR 97702
Quality Services Performed with Pride
DECISION OF DESCHUTES COUNTY HEARINGS OFFIC0111273
47
FILE NUMBER: PA -09-4
APPLICANT: AT&T Mobility
c/o Joe Riddle
Cascadia PM
5501 N.E. 109th Court, Suite A-2
Vancouver, Washington 98662
PROPERTY OWNER: Oregon Water Wonderland Unit 2 Sewer
55841 Swan Road
Bend, Oregon 97701
APPLICANT'S
ATTORNEY:
REQUEST:
STAFF REVIEWER:
HEARING DATE:
RECORD CLOSED:
N
Ca
District
Myles A. Conway
Schwabe, Williamson & Wyatt
360 S.W. Bond Street, Suite 400
Bend, Oregon 97702
The applicant requests approval of a plan amendment and a
"reasons" goal exception to add wireless telecommunications
facilities to the list of uses permitted in the Oregon Water
Wonderland Unit 2 Sewer District Limited Use Combining Zone.
Will Groves, Senior Planner
January 5, 2010
January 12, 2010
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.04, Title, Purpose and Definitions
* Section 18.04.030, Definitions
2. Chapter 18.60, Rural Residential Zone — RR10
* Section 18.60.090, Oregon Water Wonderland Unit 2 Sewer District
Limited Use Combining Zone
3. Chapter 18.112, Limited Use Combining Zone
* Section 18.112.010, Purpose
* Section 18.112.020, Combining Zone Requirements
AT&T Mobility (OWW Unit 2)
PA -09-4
Page 1 of 31
4. Chapter 18.136, Amendments
* Section 18.136.020, Rezoning Standards
B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.24, Land Use Action Hearings
* Section 22.24.140, Continuances and Record Extensions
2. Chapter 22.28, Land Use Action Decisions
* Section 22.28.030, Decision on Plan Amendments and Zone Changes
C. Title 23 of the Deschutes County Code, the Comprehensive Plan
1. Chapter 23.08, Introduction
* Section 23.08.010, Introduction
2. Chapter 23.20, Comprehensive Planning Process
* Section 23.20.040, Goals and Policies
3. Chapter 23.24, Rural Development
* Section 23.24.020, Goals
* Section 23.24.030, Policies
4. Chapter 23.44, Regional Problem Solving for South Deschutes County
* Section 23.44.020, Goals
* Section 23.44.030, Strategies
5. Chapter 23.68, Public Facilities and Services
* Section 23.68.020, Policies
5. Chapter 23.92, Forest Lands
* Section 23.92.020, Goal
* Section 23.92.030, Policies
6. Chapter 23.120, Goal Exception Statement
* Section 23.120.170, Oregon Water Wonderland Unit 2 Sewer District
AT&T Mobility (OWW Unit 2)
PA -09-4
Page 2 of 31
D. Oregon Administrative Rules, Chapter 660, Land Conservation and Development
Commission
1. Division 4, Interpretation of Goal 2 Exception Process
* OAR 660-04-0010, Application of the Goal 2 Exception Process to Certain
Goals
* OAR 660-04-0018, Planning and Zoning for Exception Areas
* OAR 660-04-0020, Goal 2, Part II(c) Exception Requirements
* OAR 660-04-022, Reasons Necessary to Justify an Exception Under Goal 2,
Part II(c)
2. Division 11, Public Facilities and Services
* OAR -660-011-0005, Definitions
3. Division 12, Transportation Planning
* Section 66-012-0060, Plan and Land Use Regulation Amendments
4. Division 15, Statewide Land Use Planning Goals and Guidelines
* OAR 660-015-000, Statewide Planning Goals and Guidelines No. 1
Through No. 14
* OAR 660-015-005, Statewide Planning Goal and Guideline No. 15
* OAR 660-015-010, Statewide Planning Goals and Guidelines No. 16
Through No. 19
II. FINDINGS OF FACT:
A. Location: The subject property is located at 16480 South Century Drive, Bend, and is
further identified as Tax Lot 1900 on Deschutes County Assessor's Map 20-10.
B. Zoning and Plan Designation: The subject property is zoned Rural Residential -10 -Acre
Minimum (RR -10) with a Limited Use Combining Zone (LU) for the Oregon Water
Wonderland (OWW) Unit 2 Sewer District's community sewage treatment facility. The
property also is located within Wildlife Area (WA) and Landscape Management (LM)
Combining Zones. The property is designated Rural Residential Exception Area on the
Deschutes County Comprehensive Plan map.
C. Site Description: The subject property is approximately 480 acres in size, rectangular in
shape and relatively flat. It is developed with the OWW Unit 2 sewage treatment facility,
including a control building, holding ponds, burrow pit, pumps, transmission lines, chain
link fence, and access road. The undeveloped portions of the property have a vegetative
cover of pine trees and native brush. The entire property is subject to a conservation
easement. The property is separated by residential lots within the OWW Unit 2
Subdivision by South Century Drive, and abuts Vandevert Road on the south.
AT&T Mobility (OWW Unit 2)
PA -09-4
Page 3 of 31
E. Surrounding Zoning and Land Uses: Surrounding properties are zoned RR -10 and
developed with residential lots in the OWW Units 1 and 2 Subdivisions and the
Pinewood Country Estates Subdivision.
F. Procedural History: The subject property was once part of a 520 -acre tract owned and
managed by the U.S. Forest Service (USFS). In 2002 the USFS transferred 480 acres of
this tract to the OWW Unit 2 Sewer District pursuant to the Township Act for the
purpose of providing a location on which to expand the OWW community sewage
treatment facility which serves approximately 1,000 lots. Construction of the original and
expanded sewage treatment facilities was necessitated by a history of failing on-site
septic systems and the resulting potential for pollution of groundwater in the area. At the
time the 480 -acre subject property was transferred to the OWW Unit 2 Sewer District it
was zoned Forest Use (F-2).
In 2003, the applicant sought and received approval from the Deschutes County Board of
Commissioners (hereafter "board") for a comprehensive plan amendment from Forest to
Rural Residential Exception Area, a zone change from F-2 to RR -10, "reasons"
exceptions to Goal 4 (Forest) and Goal 11 (Public Facilities & Services), and the creation
of an LU Zone and a conservation easement covering the entire property (PA-02-5IZC-
02-3). The plan amendment, zone change, "reasons" exceptions to Goals 4 and 11, and
creation of an LU Zone permitted expansion of the OWW Unit 2 sewage treatment
facility onto the subject property. In 2004, the county approved a site plan for the facility
expansion (SP -04-23, LM -04-113).
The subject plan amendment and goal exception application was submitted on November
16, 2009 and was accepted by the county as complete on December 15, 2009. Because
the application includes, and its approval is dependent upon, a plan amendment, the 150 -
day period for issuance of a final local land use decision under ORS 215.427 is not
applicable. A public hearing on the application was scheduled for January 5, 2010. By a
letter dated December 7, 2009 the applicant's attorney Myles Conway requested a
continuance of the hearing due to a scheduling conflict. Because the continuance request
was made after notice of the public hearing was published, under Section 22.24.140 of
the development procedures ordinance the Hearings Officer was required to open the
scheduled public hearing and receive any offered testimony and evidence. By an
electronic mail message dated January 5, 2010, Senior Planner Will Groves advised the
Hearings Officer that Mr. Conway would in fact be available for the hearing and the
applicant wanted to proceed with the hearing on January 5, 2010. At the public hearing,
the Hearings Officer received testimony and evidence and left the evidentiary record
open through January 15, 2010. The applicant agreed to submit final argument pursuant
to ORS 197.763 in conjunction with its final evidence. The applicant submitted its final
evidence and argument on January 12, 2010 and the record closed on that date.
G. Proposal: The applicant requests approval of a plan amendment and "reasons" exception
to Goals 4 and 11 to add wireless telecommunications facilities to the list of uses
permitted in the LU Zone on the subject property. The applicant desires to establish a
wireless telecommunications facility on the subject property in order to remedy coverage
AT&T Mobility (OWW Unit 2)
PA -09-4
Page 4 of 31
gaps in its existing wireless network.
Public/Private Agency Comments: The Planning Division sent notice of the applicant's
proposal to a number of public and private agencies. As of the date the record in this
matter closed, the following agencies had not responded to the notice or had submitted
"no comment" responses: the Deschutes County Road Department, Property Address
Coordinator, Transportation Planner and Forester; the La Pine Fire Department; the
Oregon Departments of Land Conservation and Development (DLCD) and Fish and
Wildlife (ODFW); the USFS; and the Sunriver Owners Association and Sunriver Resort.
J. Public Notice and Comments: The Planning Division mailed individual written notice
of the applicant's proposal and the public hearing to the owners of record of all property
located within 250 feet of the subject property. 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 no members of the public had responded to these notices. No members of the
public testified at the public hearing. Only representatives of the applicant and the
property owner testified at the hearing.
K. Lot of Record: The staff report states the county considers the subject property to be a
legal lot of record on the basis of county building permits previously issued to the
property owner (e.g., B57313).
III. CONCLUSIONS OF LAW:
GOAL EXCEPTIONS
A. Oregon Administrative Rules, Chapter 660, Land Conservation and Development
Commission
1. Division 4, Interpretation of Goal 2 Exception Process
a. OAR 660-004-0010, Application of the Goal 2 Exception Process to
Certain Goals
(1) The exceptions process is not applicable to Statewide Goal 1
"Citizen Involvement" and Goal 2 "Land Use Planning." The
exceptions process is generally applicable to all or part of those
statewide goals which prescribe or restrict certain uses of
resource land or limit the provision of certain public facilities
and services. These statewide goals include but are not limited
to:
*
(b) Goal 4 "Forest Lands;"
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FINDINGS: The applicant has requested approval of a "reasons" exception to Goals 4 and 11.
At the outset, staff raised the question of whether the applicant is required to obtain another
"reasons" exception to Goal 4 in light of the history of the subject property. As discussed in the
Findings of Fact above, in 2003 the board approved a "reasons" exception to Goal 4 along with a
plan amendment and zone change from F-2 to RR -10 and new LU Zone to facilitate the
expansion of the OWW Unit 2 sewage treatment facility onto the subject property. This
application requests a plan amendment and goal exceptions to add wireless telecommunication
facilities as a use conditionally permitted within the LU Zone on the subject property.
The staff report notes the addition of this use, in and of itself, would not require exceptions to
Goals 4 and 11 inasmuch as OAR 660-006-0025(4)(h) permits television, microwave and radio
communication facilities and transmission towers on forest -zoned land, and wireless
telecommunication facilities are not "public facilities" as defined in OAR 660-11-0005(5)
implementing Goal 11.1 Nevertheless, OAR 660-004-0018(4)(b), discussed in detail in the
findings below, states that when a local government changes the types or intensities of uses or
public facilities and services within an area that previously received a "reasons" exception, a new
"reasons" exception is required. The Hearings Officer finds a new "reasons" exception is
required here because adding wireless telecommunications facilities would be a change to the
uses currently permitted in the LU Zone on the subject property. The applicant's compliance
with the "reasons" exception approval criteria is discussed in the findings below.
b. OAR 660-004-0018, Planning and Zoning for Exception Areas
* * *
(4) "Reasons" Exceptions:
(a) When a local government takes an exception under the
"Reasons" section of ORS 197.732(1)(c) and OAR 660-
004-0020 through 660-004-0022, plan and zone
designations must limit the uses, density, public
facilities and services, and activities to only those that
are justified in the exception;
(b) When a local government changes the types or
intensities of uses or public facilities and services within
an area approved as a "Reasons" exception, a new
"Reasons" exception is required;
FINDINGS: The applicant requests approval to expand the uses allowed on the subject property
1 OAR 660-011-0005(5) defines "public facility" as including "water, sewer, and transportation facilities
but does not include buildings, structures or equipment incidental to the direct operation of those
facilities."
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in order to include wireless telecommunication facilities, and has requested another "reasons"
exception for the proposed use. In this Hearings Officer's decision in 4R Equipment (PA -08-6,
ZC-08-6), I was asked to approve a "reasons" exception to expand the types of minerals that
could be processed on a site zoned Rural Industrial (RI) through a previously -approved plan
amendment and "reasons" exception to Goals 3 and 14. I made the following relevant findings
under paragraph (b) of this administrative rule:
"In Doherty v. Morrow County, 44 Or LUBA 141 (2003), LUBA stated in relevant
part:
'OAR 660-004-0018(4)(b) does not expressly require that the new
reasons exception that must be taken under the rule to change the
uses that were authorized by a previously adopted reasons
exception must include an exception to the same goal or goals that
were the subject of the original exception. The rule is therefore
somewhat ambiguous.'
The applicant's original burden of proof states that because application of this
rule is `somewhat ambiguous,' and because there is not clear guidance in the
case law, the applicant chose to address the same `reasons' exception criteria
that were analyzed under the 1998 `reasons' exception. The applicant and staff
have not identified, nor has the Hearings Officer found, any means of modifying
the existing LU Zone established through the previous `reasons' exception other
than through approval of another `reasons' exception under this rule. That is the
case even where, as here, some approval criteria for a `reasons' exception are
not a good fit for the applicant's proposal inasmuch as the existing RI zoning on
the subject property will not change. Therefore, I find the applicant must obtain
approval of a new `reasons' exception to modify the existing LU Zone."
Unlike the situation presented in 4R Equipment, here the applicant proposes to change the uses
permitted in the existing LU Zone on the subject property. Therefore, although as in 4R
Equipment not all of the "reasons" exception criteria are a good fit for the subject proposal, the
Hearings Officer finds the only process available to the applicant is to request and obtain
approval of another "reasons" exception. I further find that under paragraph (4)(b) of this rule the
uses permitted within the LU Zone on the subject property will be limited to those justified by
the previous "reasons" exception and the new "reasons" exception proposed by the applicant.
c. OAR 660-004-020, Goal 2, Part II(c), Exception Requirements:
(1)
If a jurisdiction determines there are reasons consistent with
OAR 660-04-022 to use resource lands for uses not allowed by
the applicable Goal, the justification shall be set forth in the
comprehensive plan as an exception.
FINDINGS: The proposal's consistency with OAR 660-04-022 is discussed in the findings
below. The applicant did not propose any specific language to be included in the comprehensive
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plan as justification for the requested "reasons" exception. The staff report recommends the
following language amending the text of the LU Zone and the comprehensive plan (new text
underscored):
Section 23.120.170, Oregon Water Wonderland Unit 2 Sewer District.
In conjunction with the Board's approval of County file nos. PA-02-5/ZC-02-3, as
amended by PA -09-4, a "reasons" exception to Statewide Planning Goals 4, Forest
Lands, and 11, Public Facilities & Services, was taken for certain property. The
plan amendment changed the plan designation to Rural Residential Exception Area
and the zone change changed the zoning to Rural Residential with a Limited Use
Combing Zone to allow only the uses approved through the Board's decision on PA-
02-5/ZC-02-3, as amended by PA -09-4. Reasons justifying why the state policies
embodied in Goals 4 and 11 should not apply in this situation are set forth in
Exhibit "C" to Ordinance 2003-012 as amended by Ordinance 2010-xxx, which
findings are incorporated herein by reference.
The Hearings Officer finds this language is appropriate and will be adopted in this decision.
(2) The four factors of Goal 2 Part II(c) required to be addressed
when taking an exception to a Goal are:
(a) "Reasons justify why the state policy embodied in the
applicable goals should not apply": The exception shall
set forth the facts and assumptions used as the basis for
determining that a state policy embodied in a goal
should not apply to specific properties or situations
including the amount of land for the use being planned
and why the use requires a location on resource land:
FINDINGS: The subject property currently is governed by the following LU Zone exception
language in the comprehensive plan:
In conjunction with the Board's approval of County file nos. PA-02-5/ZC-02-3, a
"`reasons" exception to Statewide Planning Goals 4, Forest Lands, and 11, Public
Facilities & Services, was taken for certain property. The plan amendment changed
the plan designation to Rural Residential Exception Area and the zone change
changed the zoning to Rural Residential with a Limited Use Combing Zone to allow
only the uses approved through the Board's decision on PA-02-5/ZC-02-3. Reasons
justifying why the state policies embodied in Goals 4 and 11 should not apply in this
situation are set forth in Exhibit "C" to Ordinance 2003-012, which findings are
incorporated herein by reference.
The Hearings Officer finds that in order to demonstrate compliance with this administrative rule,
the applicant must demonstrate or explain: (1) the basis for determining that state policy
embodied in the applicable goals should not apply; (2) the amount of land that is required for the
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use being planned; and (3) why the use requires a location on resource land. Each of these factors
is addressed separately in the findings below:
1. Basis for Determining State Policy Embodied in the Goals Should Not Apply.
a. Goal 4. The state policy embodied in Goal 4, Forest Lands, is to conserve forest lands by
maintaining the forest land base and making possible economically efficient forest practices. As
discussed in the findings above, OAR 660-006-0025(4)(h) permits television, microwave and
radio communication facilities and transmission towers on forest lands. Therefore, the Hearings
Officer finds an exception to Goal 4 is not required in order to add wireless telecommunication
facilities to the uses permitted in this zone. However, because the applicant seeks to modify the
existing LU Zone on the subject property through a "reasons" exception, another "reasons'
exception to Goal 4 is required.
b. Goal 11. The state policy embodied in Goal 11, Public Facilities and Services, is to plan and
develop orderly and efficient public facilities and services. As discussed in the findings above,
Goal 11 is not applicable to wireless telecommunication facilities because such facilities do not
fall within the definition of "public facilities" in OAR 660-011-0005(5).
2. The Amount of Land Required for the Use Being Planned. The record indicates it is likely
that less than one acre would be needed to accommodate a wireless telecommunications facility
including a tower and antennas, equipment cabinets, perimeter fencing and access.
3. Why the Use Requires a Location on Resource Land. The staff report questions whether
the applicant must demonstrate that wireless telecommunication facilities require a location on
resource land inasmuch as OAR 660-006-0025(4)(h) permits television, microwave and radio
communication facilities and transmission towers on forest -zoned land, and therefore an
exception to Goal 4 is not required. In the Hearings Officer's decision in 4R Equipment, I made
the following relevant findings:
"The subject property was rezoned from EFU to RI in 1998. Therefore, it is no
longer resource land. Nevertheless, because OAR 660-04-0018(b) requires the
applicant to apply for and receive approval of a new `reasons' exception in order
to modify the previously -approved `reasons' exception, the Hearings Officer finds
the applicant must demonstrate the proposed use must be located on the subject
property which previously was resource land."
I adhere to these findings here, and find that in considering whether to approve another "reasons"
exception I must consider the subject property's original resource zone (F-2) and not its current
RR -10 zoning. Because wireless telecommunications facilities are permitted in the F-2 Zone,
arguably the applicant should not be required to demonstrate such facilities must be sited on the
subject property rather than on other non -resource lands in the area. Nevertheless, because the
method of applying the "reasons" exception criteria in the context of this application is unclear,
the Hearings Officer requested at the public hearing that the applicant submit into the record
evidence of its site evaluation for its proposed wireless telecommunications facility on the
subject property.
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On January 12, 2010 the applicant submitted a letter from Mr. Conway to which was attached a
document entitled "Location Analysis, AT&T Cell Site — 55555 Foster Road" prepared by Joe
Riddle of Cascadia PM (hereafter "site analysis"). Mr. Conway's letter states the applicant
currently operates a digital wireless network, and that because of federally mandated digital
conversion requirements the area south of Sunriver "suffers from very limited cellular service"
for residents, travelers and emergency services providers.
a. Applicant's Objectives. The site analysis states the applicant's business objective is to "serve
the residential neighborhoods surrounding the Three Rivers residential area south of Sunriver"
by providing digital cellular service "on a multi -carrier tower for residential and mobile
customers located in a currently underserved area south of Sunriver." The desired service area is
bounded by Highway 97 on the east, the Crosswater Golf Course on the north, Lloyd Way on the
west, and Shawnee Circle on the south.
b. Current Coverage. The site analysis includes two color -coded signal propagation maps
showing the applicant's cellular coverage in the desired service area with the facility proposed
for the subject property (Exhibit 1 to Exhibit A) and without the proposed facility (Exhibit 2 to
Exhibit A). Exhibit 1 shows large areas without either in -building or in -vehicle coverage in the
areas south and southwest of Sunriver. Exhibit 2 shows the gaps in coverage closest to Sunriver
would be closed with the proposed facility on the subject property.
c. Alternative Sites Analysis. The site analysis states that in order to provide service in the areas
with insufficient in -building and in -vehicle coverage the proposed facility had to be located close
to South Century Drive. However, the site analysis notes that there are several LM Zones in this
area established to protect both the Big and Little Deschutes Rivers as well as South Century
Drive and Highway 97. The site analysis notes that the LM Zone has a 30 -foot height limit for all
structures, and that since many of the ponderosa pine trees in the area are taller than 30 feet any
tower would have to be taller than 30 feet to provide line -of -sight with the applicant's other
existing facilities. The site analysis also states the applicant considered siting a facility on RR -10
zoned residential lots in the area near South Century Drive but determined that these sites would
not be suitable because of the difficulty of screening a tower using existing vegetation, and the
likely negative visual impacts on, and resulting incompatibility with, dwellings located on
relatively small lots. The site analysis concluded that the subject property was the only suitable
site that would provide coverage in the identified coverage area with a tower taller than 30 feet
because the subject property already is developed with a sewage treatment facility and has all
required infrastructure.
The Hearings Officer finds that for purposes of the goal exception analysis in this decision the
applicant's site analysis provides sufficient evidence from which I can find the applicant's
proposed wireless telecommunications facility must be sited on the subject property — which
once was resource land.2
2 As noted elsewhere in this decision, in order to establish a wireless telecommunications facility on the
subject property the applicant will be required to obtain a conditional use permit and demonstrate
compliance with all applicable conditional use approval criteria.
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(b) Areas which do not require a new exception cannot
reasonably accommodate the use:
FINDINGS: For the reasons set forth in the findings immediately above, incorporated by
reference herein, the Hearings Officer finds the applicant's site analysis demonstrates there are
no areas no requiring a new goal exception that could reasonably accommodate the proposed
wireless telecommunications facility.
(A) The exception shall indicate on a map or
otherwise describe the location of possible
alternative areas considered for the use, which
do not require a new exception. The area for
which the exception is taken shall be identified;
(B) To show why the particular site is justified, it is
necessary to discuss why other areas which do
not require a new exception cannot reasonably
accommodate the proposed use. Economic
factors can be considered along with other
relevant factors in determining that the use
cannot reasonably be accommodated in other
areas. Under the alternative factor the following
questions shall be addressed:
(i) Can the proposed use be reasonably
accommodated on nonresource land that
would not require an exception, including
increasing the density of uses on
nonresource land? If not, why not?
FINDINGS: For the reasons set forth in the findings above, incorporated by reference herein,
the Hearings Officer finds the applicant's site analysis demonstrates the possible alternative areas
considered for the proposed wireless telecommunications facility and why other areas that do not
require a goal exception could reasonably accommodate the proposed facility.
(ii) Can the proposed use be reasonably
accommodated on resource land that is
already irrevocably committed to
nonresource uses, not allowed by the
applicable Goal, including resource land
in existing rural centers, or by increasing
the density of uses on committed lands?
If not, why not?
FINDINGS: For the reasons set forth in the findings above, incorporated by reference herein,
the Hearings Officer finds the applicant's site analysis demonstrates that there are no resource
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lands already irrevocably committed to nonresource uses that could reasonably accommodate the
proposed facility.
(iii) Can the proposed use be reasonably
accommodated inside an urban growth
boundary? If not, why not?
FINDINGS: The record indicates the nearest urban growth boundary (UGB) is the Bend UGB
over 15 miles away. The applicant argues, and the Hearings Officer agrees, that in light of the
distance and intervening topography between the subject property and the UGB boundary a site
within the UGB cannot reasonably accommodate the proposed wireless telecommunications
facility.
(C) The alternative areas standard can be met by a
broad review of similar types of areas rather
than a review of specific alternative sites.
Initially, a local government adopting an
exception need assess only whether those similar
types of areas in the vicinity could not
reasonably accommodate the proposed use. Site
specific comparisons are not required of a local
government taking an exception, unless another
party to the local proceeding can describe why
there are specific sites that can more reasonably
accommodate the proposed use. A detailed
evaluation of specific alternative sites is thus not
required unless such sites are specifically
described with facts to support to support the
assertion that the sites are more reasonable by
another party during the local exceptions
proceeding.
FINDINGS: As discussed in the findings above, the applicant's site analysis demonstrates the
applicant considered a number of possible alternative areas for siting the proposed wireless
telecommunications facility and concluded that none of them could reasonably accommodate the
proposed facility for the reasons described in the site analysis.
(c) The long-term environmental, economic, social and
energy consequences resulting from the use at the
proposed site with measures designed to reduce adverse
impacts are not significantly more adverse than would
typically result from the same proposal being located in
other areas requiring a Goal exception. The exception
shall describe the characteristics of each alternative
areas considered by the jurisdiction for which an
exception might be taken, the typical advantages and
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disadvantages of using the area for a use not allowed by
the Goal, and the typical positive and negative
consequences resulting from the use at the proposed site
with measures designed to reduce adverse impacts. A
detailed evaluation of specific alternative sites is not
required unless such sites are specifically described with
facts to support the assertion that the sites have
significantly fewer adverse impacts during the local
exceptions proceeding. The exception shall include the
reasons why the consequences of the use at the chosen
site are not significantly more adverse than would
typically result from the same proposal being located in
areas requiring a goal exception other than the
proposed site. Such reasons shall include but are not
limited to, the facts used to determine which resource
land is least productive; the ability to sustain resource
uses near the proposed use; and the long-term economic
impact on the general area caused by irreversible
removal of the land from the resource base. Other
possible impacts include the effects of the proposed use
on the water table, on the costs of improving roads and
on the costs to special service districts;
FINDINGS: The applicant argues, and the Hearings Officer agrees, that placement of a wireless
telecommunications facility adjacent to the existing sewage treatment facility will reduce the
potential long-term environmental, economic, social and energy consequences of the use. That is
because no new roads, water or sewer service or electric utilities are required for the use, and the
facility will have a very small footprint — likely no more than one acre on the 480 -acre subject
property. Moreover, there would be no loss of resource land, no impact to the water table, no
requirement for road improvements, and a financial benefit to the sewer district through lease
payments from the applicant.
(d) The proposed uses are compatible with other adjacent
uses or will be so rendered through measures designed
to reduce adverse impacts. The exception shall describe
how the proposed use will be rendered compatible with
adjacent land uses. The exception shall demonstrate
that the proposed use is situated in such a manner as to
be compatible with surrounding natural resource and
resource management or production practices.
"Compatible" is not intended as an absolute term
meaning no interference or adverse impacts of any type
with adjacent uses.
FINDINGS: Approval of the applicant's request for a plan amendment and goal exception alone
will not permit development of the subject property with a wireless telecommunications facility.
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The applicant will be required to obtain a conditional use permit, the review for which requires
an evaluation of the compatibility of the facility with surrounding and adjacent uses. However,
the Hearings Officer finds that a wireless telecommunication facility can be compatible with the
existing sewage treatment facility since both uses are utilities and the wireless facility will
occupy a very small footprint and require no additional infrastructure.
(4) For the expansion of an unincorporated community defined
under OAR 660-022-0010. The exception requirements of
subsections (2)(b), (c), and (d) of this rule are modified to also
include the following:
FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject
property is not located within an unincorporated community.3
d. OAR 660-04-022, Reasons Necessary to Justify an Exception Under
Goal 2, Part II(c):
An exception under Goal 2, Part II(c) can be taken for any use not
allowed by the applicable goal(s). The types of reasons that may or
may not be used to justify certain types of uses not allowed on
resource lands are set forth in the following sections of this rule:
(1)
For uses not specifically provided for in subsequent
sections of this rule or in OAR 660-012-0070 or chapter
660, division 14, the reasons shall justify why the state
policy embodied in the applicable goals should not
apply. Such reasons include but are not limited to the
following:
(a)
There is a demonstrated need for the proposed
use or activity, based on one or more of the
requirements of Goals 3 to 19; and either
(b) A resource upon which the proposed use or
activity is dependent can be reasonably obtained
only at the proposed exception site and the use or
activity requires a location near the resource. An
exception based on this subsection must include
an analysis of the market area to be served by
the proposed use or activity. That analysis must
demonstrate that the proposed exception site is
3 "Unincorporated community" is defined in Section 18.04.030 as "an unincorporated community having
a zoning designation under DCC Title 18 of Urban Unincorporated Community, Rural Service Center
(designated under OAR chapter 660, division 22 and otherwise), Resort Community or Rural
Community. This definition is essentially the same as that in OAR 660-022-0010(e).
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the only one within that market area at which
the resource depended upon can reasonably be
obtained; or
(c) The proposed use or activity has special features
or qualities that necessitate its location on or
near the proposed exception site.
FINDINGS: As discussed in the findings above, the applicant has demonstrated there are
wireless service coverage gaps in the area surrounding the subject property, and that the siting of
a wireless telecommunications facility on the subject property would remedy those gaps. Goal 4
is to conserve forest lands in part by "making possible economically efficient forest practices."
The applicant argues, and the Hearings Officer agrees, that providing clear, uninterrupted
wireless telecommunications service on forest -zoned lands will benefit those persons managing,
logging and reforesting timber lands in the surrounding area, and will provide a means of
communication with emergency services. Moreover, the record indicates that wireless
telecommunications depend upon a series of facilities within line of sight of one another in order
to provide continuous, uninterrupted telecommunications, and the applicant has demonstrated a
wireless communications facility must be located on the subject property in order to close the
current gap in its service coverage within the applicant's existing wireless network. In other
words, wireless telecommunications facilities in general, and the proposed facility on the subject
property, are locationally dependent. For these reasons, I find the applicant's proposal satisfies
the requirements in subsection (1) of this section.
For the foregoing reasons, the Hearings Officer finds the applicant's proposal satisfies all
applicable approval criteria for goal exceptions.
PLAN AMENDMENT
4. OAR 660, Division 12, Transportation Planning Rule
a. OAR 660-012-0060, Plan and Land Use Regulation Amendments
(1)
Where an amendment to a functional plan, an acknowledged
comprehensive plan, or a land use regulation would
significantly affect an existing or planned transportation
facility, the local government shall put in place measures as
provided in section (2) of this rule to assure that allowed land
uses are consistent with the identified function, capacity, and
performance standards (e.g. level of service, volume to capacity
ratio, etc.) of the facility. A plan or land use regulation
amendment significantly affects a transportation facility if it
would:
(a) Change the functional classification of an existing or
planned transportation facility (exclusive of correction
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of map errors in an adopted plan);
(b) Change standards implementing a functional
classification system; or
(c) As measured at the end of the planning period
identified in the adopted transportation system plan:
(A) Allow land uses or levels of development that
would result in types or levels of travel or access
that are inconsistent with the functional
classification of an existing or planned
transportation facility;
(B) Reduce the performance of an existing or
planned transportation facility below the
minimum acceptable performance standard
identified in the TSP or comprehensive plan; or
(C) Worsen the performance of an existing or
planned transportation facility that is otherwise
projected to perform below the minimum
acceptable performance standard identified in
the TSP or comprehensive plan.
(2) Where a local government determines that there would be a
significant effect, compliance with section (1) shall be
accomplished through one or a combination of the following:
(a) Adopting measures that demonstrate allowed land uses
are consistent with the planned function, capacity, and
performance standards of the transportation facility.
(b) Amending the TSP or comprehensive plan to provide
transportation facilities, improvements or services
adequate to support the proposed land uses consistent
with the requirements of this division; such
amendments shall include a funding plan or mechanism
consistent with section (4) or include an amendment to
the transportation finance plan so that the facility,
improvement, or service will be provided by the end of
the planning period.
(c) Altering land use designations, densities, or design
requirements to reduce demand for automobile travel
and meet travel needs through other modes.
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(3)
(d) Amending the TSP to modify the planned function,
capacity or performance standards of the
transportation facility.
(e) Providing other measures as a condition of development
or through a development agreement or similar funding
method, including transportation system management
measures, demand management or minor
transportation improvements. Local governments shall
as part of the amendment specify when measures or
improvements provided pursuant to this subsection will
be provided.
Notwithstanding sections (1) and (2) of this rule, a local
government may approve an amendment that would
significantly affect an existing transportation facility without
assuring that the allowed land uses are consistent with the
function, capacity and performance standards of the facility
where:
(a) The facility is already performing below the minimum
acceptable performance standard identified in the TSP
or comprehensive plan on the date the amendment
application is submitted;
(b) In the absence of the amendment, planned
transportation facilities, improvements and services as
set forth in section (4) of this rule would not be
adequate to achieve consistency with the identified
function, capacity or performance standard for that
facility by the end of the planning period identified in
the adopted TSP;
(c) Development resulting from the amendment will, at a
minimum, mitigate the impacts of the amendment in a
manner that avoids further degradation to the
performance of the facility by the time of the
development through one or a combination of
transportation improvements or measures;
(d) The amendment does not involve property located in an
interchange area as defined in paragraph (4)(d)(C); and
For affected state highways, ODOT provides a written
statement that the proposed funding and timing for the
identified mitigation improvements or measures are, at
(e)
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a minimum, sufficient to avoid further degradation to
the performance of the affected state highway.
However, if a local government provides the
appropriate ODOT regional office with written notice
of a proposed amendment in a manner that provides
ODOT reasonable opportunity to submit a written
statement into the record of the local government
proceeding, and ODOT does not provide a written
statement, then the local government may proceed with
applying subsections (a) through (d) of this section.
FINDINGS: The Hearings Officer finds the Transportation Planning Rule (TPR) is applicable to
the applicant's proposal because it includes a plan amendment. The record indicates a wireless
telecommunications facility on the subject property would generate very little vehicular traffic,
likely consisting of only one trip per month by the applicant's maintenance staff. Therefore, the
Hearings Officer finds the proposal would have little if any effect on transportation facilities, and
certainly would not have a significant effect on them. Accordingly, I find the applicant's
proposal satisfies the TPR.
5. OAR 660, Division 15, Statewide Planning Goals and Guidelines
FINDINGS:
Goal 1, Citizen Involvement. The Hearings Officer finds the proposed plan amendment satisfies
this goal because the Planning Division provided public notice of the applicant's proposal
through individual mailed notice to affected property owners, posting of the subject property
with a notice of proposed land use action sign, and publishing notice of the public hearing in the
Bend "Bulletin" newspaper. In addition, two public hearings will be held before the proposed
plan amendment is approved.
Goal 2, Land Use Planning. The Hearings Officer finds the proposed plan amendment satisfies
this goal because the proposal has been reviewed in accordance with the county's acknowledged
planning review processes, and will be subject to at least two public hearings, and no exceptions
to Goal 2 are proposed or required.
Goal 3, Agricultural Lands. The Hearings Officer finds this goal is not applicable because no
agricultural lands are involved.
Goal 4, Forest Lands. As discussed above, the subject property was zoned F-2 before it was
rezoned to RR -10 in 2003 following the board's approval of a plan amendment, zone change and
exception to Goal 4. The findings from that prior decision are included in this record and are
incorporated by reference herein. As also discussed above, the state policy embodied in Goal 4 is
to conserve forest lands for forest use as well as to protect soil, air and water quality, fish and
wildlife resources and recreational opportunities. The Hearings Officer finds the applicant's
proposal will have no effect on these resources or opportunities because it will occupy only
approximately one acre of the 480 -acre subject property and will not negatively impact the
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undeveloped portions of the property that are subject to a conservation easement. In addition, as
discussed above, I have found the facility will support the efficient operation of forest lands in
the surrounding area by improving wireless communications in the area.
Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. The Hearings
Officer finds this goal is not applicable because the subject property does not contain any open
space, scenic or historic resources listed in the county's inventory of Goal 5 resources.
Goal 6, Air, Water and Land Resources Quality. Goal 6 requires the county and city to
protect air and water quality. The proposed wireless communications facility would not emit any
air pollution, nor would it consume or pollutes water. And as discussed above, the proposed
facility will not interfere with designated conservation areas on the subject property.
Goal 7, Areas Subject to Natural Disasters and Hazards. The Hearings Officer finds goal is
not applicable because the subject property is not in an area subject to natural disasters or
hazards.
Goal 8, Recreational Needs. The Hearings Officer finds this goal is not applicable because the
proposed plan amendment and zone change do not reduce or eliminate any opportunities for
recreational opportunities either on the subject property or in the surrounding area.
Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the
state for a variety of economic activities. The Hearings Officer finds the applicant's proposal is
consistent with this goal because siting a wireless telecommunications facility on the subject
property will close a coverage gap in the area and provide consistent and efficient
communications for both rural development and forest uses in the surrounding area.
Goal 10, Housing. The Hearings Officer finds this goal is not applicable because the proposed
plan amendment will not affect existing or needed housing.
Goal 11, Public Facilities and Services. This goal requires the orderly and efficient planning for
and provision of public services, including public services in rural areas, and generally has been
held to prohibit extension of urban services such as sewer and water to rural lands outside UGBs.
The Hearings Officer finds this goal is not applicable because wireless telecommunications
facilities are not considered public facilities under the Goal 11 administrative rules, and the
inclusion of wireless facilities in the LU Zone will not extend urban services.
Goal 12, Transportation. This goal is implemented through the TPR as discussed in detail in
the findings above. Because the wireless communications facility will not generate daily vehicle
trips, the Hearings Officer finds the proposed plan amendment is consistent with this goal.
Goal 13, Energy Conservation. This goal requires the city and county to give priority to land
use planning to the efficient utilization of energy. The Hearings Officer finds the applicant's
proposal is consistent with this goal because it would allow improved communications in this
area thereby potentially saving unnecessary vehicle trips. In addition, because the wireless site
would be adjacent to the sewage treatment facility which already is served by electricity and has
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access, no additional infrastructure will be required or energy expended.
Goal 14, Urbanization. The Hearings Officer finds this goal is not applicable to the applicant's
proposal because it does not propose the creation of new urban services.
Goals 15 through 19. The Hearings Officer finds these goals -- which address river, ocean, and
estuarine resources -- are not applicable to the applicant's proposal because the subject property
is not located in or adjacent to any such areas or resources.
For the foregoing reasons, the Hearings Officer finds the applicant's proposal satisfies all
applicable plan amendment approval criteria.
ZONE CHANGE
B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
FINDINGS: At the outset, staff questions whether the applicant's proposed "reasons" exception,
if approved, would require a zone change and compliance with the applicable zone change
criteria. The staff report states staff assumes no zone change is required.
Section 18.60.090, Oregon Water Wonderland Unit 2 Sewer District Limited Use Combining
Zone, provides as follows:
A. Uses Permitted Outright. In the Oregon Water Wonderland Unit 2 Sewer
District Limited Use Combining Zone, uses shall be permitted as follows, the
following uses and their accessory uses are allowed outright:
a. Agricultural use as defined in DCC Title 18.
b. Propagation or harvesting of a forest product.
c. Ground application of treated effluent.
B. Uses Permitted Subject to Site Plan Review. In the Oregon Water
Wonderland Unit 2 Sewer District Limited Use Combining Zone, uses shall
be permitted as follows, the following uses and their accessory uses are
permitted subject to applicable provisions of DCC 18.116, Supplementary
Provisions, and DCC 18.124, Site Plan Review:
a. Sewage treatment facility.
b. Treated effluent ponds.
C. Definitions. For the purpose of this section, the use Sewage Treatment
Facility includes any buildings or structures associated with the operations of
a sewer treatment plan including, but not limited to, treatment station or
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pump station.
D. Special Conditions. Pursuant to DCC 23.120.170, an application for site plan
review to establish a sewage treatment facility must include a conservation
easement and a plan of implementing the conservation easement that
provides standards and implementation methods for managing the
conservation easement, along with a recorded road maintenance agreement
between Oregon Water Wonderland Unit 2 Sewer District and the Beaver
Special Road District, with the site plan review application. The road
maintenance agreement between the applicant and Beaver Special Road
District shall include Oregon Water Wonderland Unit 2 Sewer District's pro
rata share for the maintenance cost of Foster Road through Section 25.
The staff report suggests the addition of the following language to Section 18.60.090 to effect the
plan amendment and goal exception requested by the applicant:
C. Conditional Uses Permitted.
The following uses may be allowed subject to DCC 18.128:
1. Wireless telecommunications facilities, except those facilities meeting
the requirements of DCC 18.116.250(A) or (B).4
The Hearings Officer finds the applicant's proposal clearly requires a zone change because it
would change the text of the existing LU Zone on the subject property by adding a new category
of uses — i.e., conditional uses -- and by adding a new use within that new category — i.e.,
wireless telecommunications facility. The applicant did not formally request a zone change.
Nevertheless, I find that because the applicant's proposal cannot be fully implemented without a
zone change it is appropriate for me to include consideration of a zone change in conjunction
with the proposed plan amendment and goal exception. The proposal's compliance with the
applicable zone change approval criteria is discussed in the findings below.
1. Chapter 18.136, Amendments
a. Section 18.136.020, Rezoning Standards
The applicant for a quasi-judicial rezoning must establish that the
public interest is best served by rezoning the property. Factors to be
demonstrated by the applicant are:
A. That the change conforms with the Comprehensive Plan, and
the change is consistent with the Plan's introductory statement
and goals.
4 The Hearings Officer finds that in addition to staff's proposed amending language, the existing
paragraphs (C) and (D) would need to be re -named (D) and (E), respectively.
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FINDINGS: In numerous previous decisions the county's hearings officers have found this
paragraph contains two requirements: (1) that the zone change conforms with plan; and (2) that it
is consistent with the plan's introductory statement and the plan's goals. Each of these
requirements is discussed below.
1. Conformance with Comprehensive Plan. The applicant's proposal would change the text of
the LU Zone on the subject property by adding the category of conditional uses and adding
wireless communications facilities as a conditional use. As discussed in the findings above,
wireless communications facilities are allowed in the underlying RR -10 zone as well as the
former F-2 zone, and therefore the Hearings Officer finds the applicant's proposal is consistent
with the comprehensive plan.
2. Consistency with the Plan's Introductory Statement and Goals. In several previous decisions,
including the aforementioned decision in 4R Equipment involving a proposal similar to the
applicant's proposal in this case, this Hearings Officer has made the following findings
concerning this requirement:
"Comprehensive plan statements, goals and policies typically are not intended to,
and do not, constitute mandatory approval criteria for quasi-judicial land use
permit applications. Save Our Skyline v. City of Bend, 48 Or LUBA 192 (2004).
There, LUBA held:
'As intervenor correctly points out, local and statutory
requirements that land use decisions be consistent with the
comprehensive plan do not mean that all parts of the
comprehensive plan necessarily are approval standards. [Citations
omitted.] Local governments and this Board have frequently
considered the text and context of cited parts of the comprehensive
plan and concluded that the alleged comprehensive plan standard
was not an applicable approval standard. [Citations omitted.]
Even if the comprehensive plan includes provisions that can
operate as approval standards, those standards are not necessarily
relevant to all quasi-judicial land use permit applications.
[Citation omitted.] Moreover, even if a plan provision is a relevant
standard that must be considered, the plan provision might not
constitute a separate mandatory approval criterion, in the sense
that it must be separately satisfied, along with any other
mandatory approval criteria, before the application can be
approved. Instead, that plan provision, even if it constitutes a
relevant standard, may represent a required consideration that
must be balanced with other relevant considerations. [Citations
omitted.]'
LUBA went on to hold in Save Our Skyline that it is appropriate to `consider first
whether the comprehensive plan itself expressly assigns a particular role to some
or all of the plan's goals and policies.' Section 23.08.020 of the county's
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comprehensive plan provides as follows:
The purpose of the Comprehensive Plan for Deschutes County is not to provide
a site-specific identification of the appropriate land uses which may take place
on a particular piece of land but rather it is to consider the significant factors
which affect or are affected by development in the County and provide a
general guide to the various decisions which must be made to promote the
greatest efficiency and equity possible, while managing the continuing growth
and change of the area. Part of that process is identification of an appropriate
land use plan, which is then interpreted to make decisions about specific sites
(most often in zoning and subdivision administration) but the plan must also
consider the sociological, economic and environmental consequences of various
actions and provide guidelines and policies for activities which may have effects
beyond physical changes of the land. (Emphasis added.)
The Hearings Officer finds the above -underscored language strongly suggests the
county's plan statements, goals and policies are not intended to establish
approval standards for quasi-judicial land use permit applications.
In Bothman v. City of Eugene, 51 Or LUBA 426 (2006), LUBA found it
appropriate also to review the language of specific plan policies to determine
whether and to what extent they may in fact establish decisional standards. The
policies at issue in that case included those ranging from aspirational statements
to planning directives to the city to policies with language providing `guidance
for decision-making' with respect to specific rezoning proposals. In Bothman
LUBA concluded the planning commission erred in not considering in a zone
change proceeding a plan policy requiring the city to `[r]ecognize the existing
general office and commercial uses located * * * [in the geographic area
including the subject property] and discourage future rezonings of these
properties. ' LUBA held that:
`* * * even where a plan provision might not constitute an
independently applicable mandatory approval criterion, it may
nonetheless represent a relevant and necessary consideration that
must be reviewed and balanced with other relevant considerations,
pursuant to ordinance provisions that require * * * consistency
with applicable plan provisions. '(Emphasis added)
The county's comprehensive plan includes a large number of goals and policies.
The applicant's burden of proof addresses goals for rural development, economy,
transportation, public facilities, recreation, energy, natural hazards, destination
resorts, open spaces, fish and wildlife, and forest lands. The Hearings Officer
finds these goals are aspirational in nature and therefore are not intended to
create decision standards for the proposed zone change."
The Hearings Officer finds the above -referenced introductory statements and goals are not
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approval criteria for the applicant's proposed plan amendment and zone change. Nevertheless,
depending upon their language, some plan provisions may require "consideration" even if they
are not applicable approval criteria. Save Our Skyline v. City of Bend, 48 Or LUBA 192, 209
(2004). Staff and the applicant have identified the following plan goals and policies as
potentially requiring consideration.
Chapter 23.120. Goal Exception Statement
Section 23.120.170, Oregon Water Wonderland Unit 2 Sewer District
In conjunction with the Board's approval of County file nos. PA-02-5/ZC-02-
3, a "reasons" exception to Statewide Planning Goals 4, Forest Lands, and
11, Public Facilities & Services, was taken for certain property. The plan
amendment changed the plan designation to Rural Residential Exception
Area and the zone change changed the zoning to Rural Residential with a
Limited Use Combing Zone to allow only the uses approved through the
Board's decision on PA-02-5/ZC-02-3. Reasons justifying why the state
policies embodied in Goals 4 and 11 should not apply in this situation are set
forth in Exhibit "C" to Ordinance 2003-012, which findings are incorporated
herein by reference.
FINDINGS: This provision was added to the comprehensive plan in 2003 and codified the
"reasons" exceptions to Goals 4 and 11 for rezoning the subject property from F2 to RR -10 and
creating the existing LU Zone. The applicant has requested approval of a new "reasons"
exception to add to the zone a new category of uses — conditional uses — and to add wireless
telecommunication facilities as a conditional use. Approval of the proposed plan amendment will
result in similar language being adopted in the plan to allow wireless telecommunication
facilities as a conditional use. The Hearings Officer has found that wireless telecommunications
and sewer facilities are both utility uses and are compatible.
Chapter 23.44, Regional Problem Solving for South Deschutes County
Section 23.44.020, Goals
1. To preserve water and air quality, reduce wildfire hazards and
protect wildlife habitat.
2. To ensure that domestic water derived from groundwater meets safe
drinking water standards.
Section 23.44.030, Strategies
1. The County shall continue to work with landowners, citizens,
community organizations and governmental agencies at the Local,
state and federal level to:
a. Continue collaborative work on the Regional Problem Solving
project.
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* * *
3. The County shall continue to evaluate means to reduce nitrate loading
from on-site sewage disposal systems by exploring innovative on-site
sewage treatment and disposal technology, retrofitting of existing
substandard or inappropriately located disposal systems, expansion of
sewer systems, development of standards such as an effective lot area
or variable lot area requirements, or other measures that will
accomplish the goals.
FINDINGS: The Hearings Officer finds the applicant's proposed addition of conditional uses,
and wireless telecommunication as a conditionally permitted use, to the LU Zone on the subject
property will have no adverse impact on groundwater quality or interfere with the existing
sewage treatment facility.
Chapter 23.68, Public Facilities and Services
Section 23.68.020, Policies
1. General
a. Public facilities and services shall be provided at levels and in
areas appropriate for such uses based upon the carrying
capacity of the land, air and water, as well as the important
distinction that must be made between urban and rural
services. In this way public services may guide development
while remaining in concert with the public's needs.
FINDINGS: As discussed above, no additional public facilities or services would be required for
the applicant's proposed wireless telecommunications facility. The Hearings Officer has found
that the area surrounding the subject property suffers from gaps in wireless coverage, and those
gaps adversely affect private communications as well as emergency communications. I further
find there is no distinction between the need for wireless telecommunications in urban and rural
areas.
2. Utilities
a. Utility companies shall be offered an opportunity to comment
on their ability to serve proposed developments.
* * *
c. When feasible all utility lines and facilities shall be located on
or adjacent to existing public or private rights-of-way so as to
avoid dividing existing farm units, and transmission lines
should be located within existing corridors as much as possible.
* * *
g•
Mutual agreements between the County and the cities shall
assure sewer and water systems are extended in a planned
manner.
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h. Sewage treatment plants offer both problems and
opportunities. To decrease the impact of noise and odor a large
buffer area shall be required. The treated sewage (both septic
tank sludge and municipal water) should be used as a resource
and drill hole disposal discouraged.
FINDINGS: This application will facilitate the siting of a wireless communications facility on
the subject property which already is developed with a sewage treatment plant. The record
indicates no new electric transmission lines will be required for the proposed wireless facility.
Chapter 23.92, Forest Lands
Section 23.92.020, Goal
Because of the local importance of forest lands the following goal has been
set: To conserve forest lands for forest uses.
Section 23.92.030, Policies
1. In order to conserve and maintain impacted forest lands for forest use
the County shall identify and zone as F-2 those lands which have the
following characteristics:
a. Consist predominantly of ownerships developed for residential
or other non -forest uses;
b. Consist predominantly of ownerships less than 160 acres in
size;
c. Consist of ownerships generally contiguous to tracts containing
less than 160 acres and residences, or adjacent to
acknowledged exception areas;
2. Except as identified in this plan non -forest uses shall be discouraged
in existing forested areas.
FINDINGS: Wireless telecommunications facilities are allowed in the forest zones under
Section 18.116.250, and the Hearings Officer finds the addition of wireless telecommunications
facilities to the uses permitted in the LU Zone on the subject property will not adversely impact
any forest lands.
For the foregoing reasons, the Hearings Officer finds the applicant's proposal is consistent with
the comprehensive plan.
B. That the change in classification for the subject property is
consistent with the purpose and intent of the proposed zone
classification.
FINDINGS: Section 18.60.010 sets forth the purpose of the RR -10 Zone as follows:
The purposes of the Rural Residential Zone are to provide rural residential living
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environments; to provide standards for rural land use and development consistent
with desired rural character and the capability of the land and natural resources; to
manage the extension of public services; to provide for public review of
nonresidential uses; and to balance the public's interest in the management of
community growth with the protection of individual property rights through review
procedures and standards.
Section 18.112.010 sets forth the purpose of the LU Zone as follows:
1. The purpose of the LU Zone is to limit the list of permitted uses and general
activities allowed in the underlying zone, when a plan amendment and zone
change rezones a parcel to that underlying zone through the taking of an
exception to a statewide land use planning goal under ORS 197.732.
2. The LU Zone is an overlay zone which may be applied, where appropriate, to
plan amendments/zone changes effected by either a "physically developed"
exception under ORS 197.732(1)(a), an "irrevocably committed" exception
under ORS 197.732(1)(b), or a "reasons" exception under ORS 197.732(1)(c).
3. The LU Zone, when adopted, shall carry out the requirement of Oregon
Administrative Rule 660-04-018 that where a goal exception is taken,
permitted uses shall be limited to those uses justified by the exception
statement.
Wireless telecommunications facilities are allowed either outright or conditionally in the RR -10
Zone,5 but are not permitted in the LU Zone on the subject property. The applicant's proposal
would add the category of conditional uses and would add wireless telecommunications facilities
to the list of conditional uses in the LU Zone on the subject property. In addition, under Section
18.112.010 the uses permitted in that LU Zone would be limited to the uses justified by the
original 2003 exception statement included in the comprehensive plan and by the exception
statement for the proposed wireless telecommunications facility. Therefore, the Hearings Officer
finds the applicant's proposal is consistent with the purposes of both the RR -10 and LU Zones.
C. That changing the zoning will presently serve the public
health, safety and welfare considering the following factors:
1. The availability and efficiency of providing necessary
public services and facilities.
FINDINGS: The Hearings Officer finds the applicant's proposal to create a category of
conditional uses in the LU Zone on the subject property, and to include wireless
telecommunications facilities as a conditional in that zone, will have no adverse impact on public
5 "Tier 1" and "Tier 2" wireless telecommunications facilities are permitted outright in any nonresource
zone under Section 18.116.250. "Tier 3" facilities are permitted conditionally in the RR -10 Zone under
Section 18.60.030(U).
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health, safety and welfare, and in fact may create a benefit by providing improved wireless
coverage for both private and emergency communications. I also have found wireless
telecommunications and sewage treatment facilities are both utility uses and are compatible.
2. The impacts on surrounding land use will be consistent
with the specific goals and policies contained within the
Comprehensive Plan.
FINDINGS: The staff report states, and the Hearings Officer concurs, that the proposed plan
amendment and zone change, in and of themselves, will not cause any impacts on surrounding
land uses. Actual development of a wireless telecommunications facility on the subject property
will require a conditional use permit subject to the approval criteria in Chapter 18.128 as well as
the approval criteria for wireless telecommunications facilities in Chapter 18.116, both of which
ensure the compatibility of such facilities with other adjacent uses and require measures designed
to reduce any adverse impacts. The Hearings Officer has found wireless telecommunications and
sewage treatment facilities are both utility uses and are compatible.
D. That there has been a change in circumstances since the �.
property was last zoned, or a mistake was made in the zoning
of the property in question.
FINDINGS: When the board approved a zone change from F-2 to RR -10 for the subject
property to permit expansion of the OWW Unit 2 sewage treatment facility, it found the requisite
change of circumstances based on: (1) the regional problem solving project for the south part of
the county that encouraged the acquisition of USFS land for the expansion of municipal and
quasi -municipal sewage systems; and (2) the lack of any plausible alternatives to accommodate
the expansion of the OWW Unit 2 sewage treatment facility. In addition, the board approved the
zone change based on the findings contained in its decision in PA-02-5/ZC-02-3, included in this
record and incorporated by reference herein. The board also adopted an LU Zone that
specifically referenced the uses for the property that were reasonably anticipated at that time.
However, the board was not asked to, and did not, adopt the full list of the uses permitted in the
underlying RR -10 Zone, and indeed such an exhaustive list would not have been justified by the
requested goal exceptions.
The record indicates the property owner has operated a sewage treatment facility on the subject
property since 2003 and executed a conservation easement with the county. However, the
applicant's burden of proof and supplemental materials show that since the date of the initial
zone change, a coverage gap for wireless telecommunications service has occurred in the area
surrounding the subject property. As discussed in detail in the findings above, the applicant's
engineers have identified the subject property as a location where the siting of an additional
wireless telecommunications facility could be developed to remedy the identified coverage gaps.
The staff report states, and the Hearings Officer concurs, that inasmuch as wireless
telecommunications facilities are permitted uses in the underlying RR -10, and are permitted by
administrative rule in the forest zones, they likely could have been listed in the LU Zone for the
subject property at the time the board approved the plan amendment, zone change and goal
exceptions. I find the board's failure to list wireless telecommunications facilities as a use
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permitted in the LU Zone was not a mistake given the limited nature of the previous goal
exception request. Nevertheless, I find the gap in wireless coverage that has developed since the
plan amendment, zone change goal exception were approved constitutes a change of
circumstances that justifies the proposed zone change to include wireless telecommunications
facilities as a use permitted conditionally in the LU Zone.
For the foregoing reasons, the Hearings Officer finds the applicant's proposal satisfies all
applicable zone change approval criteria.
IV. DECISION
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby
APPROVES the applicant's proposed plan amendment, zone change and "reasons" exception to
Goals 4 and 11, SUBJECT TO THE FOLLOWING CONDITIONS OF APPROVAL:
1. This approval is based on the applicant's burden of proof and attachments, supplemental
materials, and written and oral testimony. Any substantial change to the approved land
use will require a new application and approval.
2. This approval allows the addition of the category of conditional use to the LU Zone on
the subject property, and allows as a conditional use in the LU Zone wireless
telecommunications facilities.
3. If, and to the extent, required by the Deschutes County Board of Commissioners, the
applicant/owner shall execute an amendment to the conservation easement covering the
subject property reflecting the plan amendment, zone change and goal exception
approved in this decision.
4. Section 23.120.170 of the Deschutes County Year 2000 Comprehensive Plan, Oregon
Water Wonderland Unit 2 Sewer District, is amended to include the following exception
justification statement to supplement the existing exception justification statement
applicable to the subject property (new language underscored):
In conjunction with the Board's approval of County file nos. PA-02-5/ZC-02-3, as
amended by PA -09-4, a "reasons" exception to Statewide Planning Goals 4, Forest
Lands, and 11, Public Facilities & Services, was taken for certain property. The
plan amendment changed the plan designation to Rural Residential Exception Area
and the zone change changed the zoning to Rural Residential with a Limited Use
Combing Zone to allow only the uses approved through the Board's decision on PA-
02-5/ZC-02-3, as amended by PA -09-4. Reasons justifying why the state policies
embodied in Goals 4 and 11 should not apply in this situation are set forth in
Exhibit "C" to Ordinance 2003-012 as amended by Ordinance 2010-xxx, which
findings are incorporated herein by reference.
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5. Section 18.60.090 of the Deschutes County Zoning Ordinance is amended as follows
(new language underscored):
A. Uses Permitted Outright. In the Oregon Water Wonderland Unit 2 Sewer
District Limited Use Combining Zone, uses shall be permitted as follows, the
following uses and their accessory uses are allowed outright:
a. Agricultural use as defined in DCC Title 18.
b. Propagation or harvesting of a forest product.
c. Ground application of treated effluent.
B. Uses Permitted Subject to Site Plan Review. In the Oregon Water
Wonderland Unit 2 Sewer District Limited Use Combining Zone, uses shall
be permitted as follows, the following uses and their accessory uses are
permitted subject to applicable provisions of DCC 18.116, Supplementary
Provisions, and DCC 18.124, Site Plan Review:
a. Sewage treatment facility.
b. Treated effluent ponds.
C. Uses Permitted Conditionally. In the Oregon Water Wonderland Unit 2
Sewer District Limited Use Combining Zone, conditional uses shall be
permitted as follows, the following uses and their accessory uses are
permitted conditionally subject to the applicable provisions of DCC 18.128,
Conditional Uses:
a. Wireless telecommunications facilities, except those facilities meeting
the requirements of DCC 18.116.250(A) or (B).
€ D. Definitions. For the purpose of this section, the use Sewage Treatment
Facility includes any buildings or structures associated with the operations of
a sewer treatment plan including, but not limited to, treatment station or
pump station.
II E. Special Conditions. Pursuant to DCC 23.120.170, an application for site plan
review to establish a sewage treatment facility must include a conservation
easement and a plan of implementing the conservation easement that
provides standards and implementation methods for managing the
conservation easement, along with a recorded road maintenance agreement
between Oregon Water Wonderland Unit 2 Sewer District and the Beaver
Special Road District, with the site plan review application. The road
maintenance agreement between the applicant and Beaver Special Road
District shall include Oregon Water Wonderland Unit 2 Sewer District's pro
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rata share for the maintenance cost of Foster Road through Section 25.
Dated this 9a. day of February, 2010.
Mailed this 1lday of February, 2010.
Karen H. Green, Hearings Officer
BECAUSE THIS DECISION APPROVES A PLAN AMENDMENT AND ZONE
CHANGE REQUIRING A GOAL EXCEPTION, UNDER SECTION 22.28.030(C) OF
THE DEVELOPMENT PROCEDURES ORDINANCE THE APPLICATION ALSO
MUST BE HEARD DE NOVO BY THE DESCHUTES COUNTY BOARD OF
COMMISSIONERS.
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REVIEWED
LEGAL COUNSEL
DESCHUTES COUNTY OFFICIAL RECORDS 10044913
NANCY BLANKENSNIP, COUNTY CLERK
11111 I I (�Iil (IIIIII! NO FES
011 10/28/2004 04:18:45 PM
D -IR$ Cnt.1 Stn.23 DICKEY
This is s no fee dooulrtont
a vi •WW%fl Ufl5 uwua,i viu)
CONSERVATION EASEMENT
This grant of conservation easement is made this v-7 day ofCC2004, by Oregon
Water Wonderland Unit II Sewer District, hereinafter referred to as "Grantor," in favor of
DESCHUTES COUNTY, a political subdivision of the State of Oregon, (hereinafter referred to as
"Grantee").
RECITALS
WHEREAS, Grantor is the sole owner in fee simple of certain real property in Deschutes
County, Oregon, more particularly described as 480 acres (more or less) of Section 25,
DESCHUTES COUNTY, OREGON, as described in Exhibit "A" attached hereto and incorporated
by reference herein (hereinafter referred to as "the Property"); and
WHEREAS, the Board of County Commissioners has determined under the Comprehensive
Plan and the Deschutes County Zoning Ordinance that the Property possesses or is deemed to possess
certain natural and wildlife habitat values; and
WHEREAS, Grantor has applied for and received a land use permit on the Property, and
Deschutes County Code (DCC) Section 18.60.090 requires as a condition of approval of land use
permits involving the property that a conservation easement be entered into;
NOW THEREFORE, pursuant to DCC 18.60.090, Grantor hereby agrees to place the
restrictions and obligations contained as set forth herein on and over the Property except those
improved areas necessary for the purpose of holding and spraying of the Grantor's treated effluent
(e.g. lagoons, burrow pit, irrigation area, control building and access road) under the terms set forth
herein (hereafter referred to as the "restricted area") and Grantee agrees to accept Grantor's grant of
such restrictions. "Restricted area" means that part of the property outlined in the map attached as
Exhibit B.
1. Scope and Purpose. This Conservation Easement imposes restrictions and
affirmative obligations on the Grantor within the restricted area. The purpose of this conservation
easement is to maintain and protect the natural values within the restricted area for the protection of
wildlife habitat. Nothing in this document shall be construed as granting a right of public access or a
public access easement.
2. Restrictions on Grantor' Use of Restricted Riparian Area. Grantor's use of the
restricted area shall be restricted as follows in order to protect the natural, scenic and wildlife habitat
values identified in this Agreement and the Conservation Plan:
Page 1 - CONSERVATION EASEMENT
Conservation Easement OWW2 Final Version.doc
2.1 General Use Restrictions
A. Except for the uses allowed under 18.60.090 and approved before site plan review,
Grantor shall not use or occupy any portion of the restricted area in a manner that would degrade or
diminish the protected natural and wildlife habitat values of the restricted area, including, but not limited
to:
(1) Depositing of trash, debris, garbage, or other unsightly or offensive material
within the restricted area; and
(2) No hunting shall be allowed on the property.
(3) Except or as allowed under 18.60.090 and permitted by site plan approval,
Grantor shall not cause changes in the general topography or land surface (including
excavation, road construction, and the quarrying or removing of rocks, sand, dirt, gravel, or
other material) within the restricted area; or
B. Notwithstanding any other provision in this Easement, agricultural practices shall be
allowed, provided, however, such agricultural practices shall be effected in such a way as to not diminish
the protected natural and wildlife habitat values in the restricted area. For the purposes of this easement,
raising of Orchard Grass hay under the irrigation pivots shall be deemed an agricultural practice that will be
compatible with protected natural and wildlife habitat values.
2.2. Restrictions on Structures
A. Except as provided in this Agreement and in Section 18.60.090, no new structures,
except those needed for or in support of the authorized use for sewer and wastewater needs of any kind,
shall be placed on or erected within the restricted area. Grantor retains the right to perform ordinary
maintenance on all buildings and improvements allowed under Section 18.60.090, together with the right to
replace, rebuild, or substitute any building or improvement with a similar building or improvement to the
extent allowed by the Deschutes County Zoning Ordinance. The areas comprising the lagoons, borrow
pit, irrigation area, control building and access road are areas excepted from the restricted area. The
remainder of the property shall comprise the restricted area. No new structures of any kind shall be
placed or erected within the restricted area.
B. Fencing consistent with the Conservation Plan, attached as Exhibit C and
incorporated by reference herein, is permitted to control or minimize unauthorized access.
2.3 Affirmative Obligations
A. The Grantor agrees to implement a Conservation Plan, a copy of which is attached
as Exhibit "C". Exhibit C provides that the Grantor shall remove all existing trash, debris, unsightly
garbage or other offensive materials from the property within 2 years of the date of this Easement
Agreement. Exhibit C also provides that the Grantor shall remove all brush and growth which would
constitute heavy fuels and a fire risk to mitigate potential forest fires on the subject property. However,
there needs to be some dead/down and dense material for hiding cover and small mammal habitat.
Page 2 - CONSERVATION EASEMENT
Conservation Easement OWW2 Final Version.doc
B. Exhibit C also provides that the Grantor shall preserve and enhance wildlife habitat
consistent with the Exhibit C attached hereto. Finally, Exhibit C provides that the Applicant shall dedicate
at a minimum $150,000.00 over the course of 10 years from the date of this agreement to fund
conservation, wildlife enhancement and preservation activities. The funds shall be allocated at
$100,000.00 in the initial fund in the first year and $5,000.00 per year over the next 10 years. The principal
and interest of which will be used to implement conservation and wildlife enhancement activities and to
maintain the property consistent with the terms and conditions of this Conservation Easement and Exhibit
C. Grantor agrees to place all unexpended funds into an endowment fund, the principal and interest of
which shall be used to implement the requirements of Exhibit C. Grantor shall provide to Grantee an
annual accounting of the use of those funds.
3. Administration and Enforcement
the Grantee.
3.1. Nothing herein shall be construed as creating any affirmative obligations on the part of
3.2. Enforcement Generally
A. The restrictions set forth in this easement are enforceable by Grantee.
B. If Grantee determines that Owners are in violation of the terms of this easement or
that such a violation is threatened, then Grantee shall give written notice to Grantor(s) of such violation and
demand corrective action to cure the violation and, where the violation involves injury to the restricted area
resulting from any use or activity inconsistent with the purpose of this easement, to restore the portion of
the restricted area so injured.
C. If Grantor fails to cure the violation within 30 days after receipt of notice thereof or
under circumstances where the violation cannot reasonably be cured within a 30 -day period, fails to begin
curing such violation within the 30 -day period, or fails to continue diligently to cure such violation,
Grantee may bring an action at law or in equity in a court of competent jurisdiction to enforce the terms of
this easement, to enjoin the violation, ex parte as necessary, by temporary or permanent injunction, and to
abate any condition created in the restricted area in violation of this easement.
3.3. No delay or omission by Grantee in the exercise of any right or remedy upon any
breach by Grantor(s) will impair such right or remedy or be construed as a waiver.
3.4. Enforcement actions under this easement may be taken only against an Owner
having fee title to the restricted area, any person having a possessionary right under an Owner, and any
agent, operator or contractor acting under the authority of such Owner or holder of such possessionary
rights. A Mortgagee shall be subject to enforcement actions only when Mortgagee takes ownership of the
property by foreclosure or otherwise.
3.5. In addition to the remedies set forth under Paragraph 3.2 above, Grantee may treat
any violation of this easement as a nuisance under current § 18.144.040 of the Deschutes County Code (or
any comparable successor provision of the Deschutes County Code) and a violation under current §
18.144.050 (or any comparable successor provision of the Deschutes County Code).
4. Assignment. Grantee may assign any right or interest it may have in this easement only
Page 3 - CONSERVATION EASEMENT
Conservation Easement OWW2 Final Vetsion.doc
upon consent of the Grantor.
5. Jxtinguishment. This easement shall be extinguished only in the event that Grantor
chooses to abandon the land use approval under which this easement is a condition.
6. Successors. The covenants, terms, conditions, and restriction of this easement shall be
binding upon, and inure to the benefit of the parties hereto and their respective personal representatives,
heirs, successors, and assigns, and all who take through them, whether by voluntary or involuntary transfer,
and shall continue as a servitude running in perpetuity with the Property.
Dated this 2---7 day of 004.
ATTEST:
jam+ fiI
Recording Secretary
STATE OF OREGON )
) ss:
BOARD OF COUNTY CO MISSIONERS
MI
IS R. LUKE, COMMISSIONER
TOM DEWOLF, COMMISSIONER
County of Deschutes )
Before me on this?T day of 0 of j9'i/`-eiL, 2004, a Notary Public, personally appeared
MICHAEL M. DALY, DENNIS R. LUKE, , and the above-named Board of County
Commissioners of Deschutes Counj�yy, Oregon appd acknowledged the foregoing instrument on behalf of
j)e-Schukte S C%ou 1 8r'etc97‘..
OFFICIAL SEAL
BONNIE BAKER
NOTARY PUBLIC•OREGO'
COMMISSION NO. 38421..
MY COMMISSION EXPIRES FEB. 3 2007
Dated this
NOTARY PUBLIC FOR OREGON
day of 0 , 2004.
.�(264,'(-47-ek
OREG` ON' WATE WONDERLAND
SEWER DISTRICT II
STATE OF OREGON
) ss:
Page 4 - CONSERVATION EASEMENT
Conservation Easement OWW2 Final Version.doe
County of Deschutes )
if S
On this /7 day of 0 dr h C,Z. , 2004, the undersigned, a Notary Public in and for said County
and for said County and State, personally appeared the within named 6 EOREjE 4 4 N OLD HA. W\
who is known to me to be the identical individual described in and who executed the within instrument and
acknowledged to me that he executed the same freely and voluntarily.Notary statements should match for
both sets of signatures.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year last above written.
OFFICIAL SEAL
PAMELA A TENNANT
NOTARY PUBLIC -OREGON
COMMISSION NO. 359351
MY COMMISSION EXPIRES AUG. 12, 2008
Page 5 - CONSERVATION EASEMENT
Conservation Easement OWW2 Final Version.doe
4.ii V,„„,„,„/
NOTARY PUBLIC FOR OREGON
LEGAL DESCRIPTION
EXHIBIT "A"
A parcel of land located in Section 25, Township 20 South, Range 10 East, of the Willamette
Meridian, Deschutes County, Oregon, being more particularly described as follows:
NOTE: The following courses are from the following maps:
(1) Record of Survey Map filed as CS04457 on July 16,1981,
(2) BLM Dependent Resurvey, Group No. 2024 Oregon, approved January 20, 2004,
(3) USFS Map of Survey dated 2004
(4) Record of Survey Map filed as CS04456 on May 6, 1982.
Commencing at the Northeast corner of said Section Twenty-five (25); Thence South
00°57'35" West along the East line of said Section 25 a distance of 40.00 feet to the
POINT OF BEGINNING marked by a 5/8" rebar with a 2 -inch aluminum cap; Thence
continuing along said East line South 00°57'35" West 2649.70 feet to the East 'A comer
of said Section 25 marked by a 2-1/2" brass cap stamped PLS 702; Thence continuing
along said East line South 00°45'19" West 2640.80 feet to the Southeast corner of said
Section 25 marked by a 2-1/2" x 30" iron pipe with a brass cap stamped PLS 930;
Thence North 89°28'57" West 2652.20 fleet along the South line of said Section 25 to the
South one-quarter corner of said Section 25 marked by a 2-1/2" x 30" steel pipe with a
brass cap marked "T2OS RI OE 'A S25/S36 2002"; Thence from said South one-quarter
comer of Section 25 continuing along said South line North 89° 34'10" West 1326.18 feet
to the West 1/16 corner of said Section 25 marked by a 2 -1/2 -inch diameter aluminum
pipe with a 2-1/2" aluminum cap marked "W 1/16 S25/36 PLS 2396 2004"; thence along
the West 1/16 line North 00° 0527" East 1319.03 feet to the Southwest 1/16 corner of
Section 25 marked by a steel pipe with a brass cap stamped "120S RI OE SW1/16 S25
2002"; Thence from said Southwest 1/16 corner of Section 25 North 00° 28'11" East
250.15 feet;
Thence North 00° 13' 26" East 223.03 feet;
Thence North 00° 17' 09" East 119.95 feet;
Thence North 00° 12' 56" East 119.86 feet;
Thence North 00° 12' 57" East 120.03 feet;
Thence North 00° 15' 18" East 120.21 feet;
Thence North 00° 16' 11" East 119.97 feet;
Thence North 00° 11' 49" East 119.83 feet;
Thence North 00° 15' 14" East 120.19 feet;
Thence North 00° 32' 46" East 8.00 feet to the Center -West 1/16 corner of Section 25;
Thence North 00° 14' 44" East 111.89 feet;
Thence North 00° 12' 25" East 120.35 feet;
Thence North 00° 16' 03" East 125.89 feet;
Thence North 00° 13' 13" East 172.11 feet;
Thence North 000 13' 05" East 734.61 feet to a point on the South right of way line of
South Century Drive, said point bears South 00° 13'05" West 70.39 feet from a Witness
Point as described on said BLM plat; Thence South 89°54'18" East 262.95 feet to a 5/8"
rebar & 2" aluminum cap, PLS 1031; Thence South 00°05'43" West 20.00 feet to a 5/8"
rebar and 2" aluminum cap, PLS 1031 to the beginning of a 1492.39 feet radius curve to
the left (the radius point of which bears North 00°05'43" East); Thence easterly along
said curve, subtended by a chord which bears North 76° 15' 51" East 720.52 feet to a 5/8"
rebar and 2" aluminum cap, PLS 1031; Thence North 27° 34' 01" West 20.00 feet to a
518" rebar and 2" aluminum cap, PLS 1031 also being the beginning of a 1472.39 feet
radius curve to the left (the radius point of which bears North 27°34'01" West); Thence
Easterly along said curve, subtended by a chord which bears North 53°10'11" East
474.03 feet; Thence North 44°18'54" East 614.29 feet to the beginning of a 1392.39 feet
radius curve to the right (the radius point of which bears South 45°41'06" East); Thence
Easterly along said curve, subtended by a chord which bears North 67° 34' 10" East
1099.47 to a 5/8" rebar and 2" aluminum cap, PLS 1031; Thence South 89°35'07" East
1239.04 feet to THE POINT OF BEGINNING.
Exhibit `B" is attached hereto and made a part hereof.
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EXHIBIT C
OWWII SANITARY DISTRICT ("DISTRICT")
CONSERVATION PLAN
Conservation Activities
In the first year, the District shall dedicate $100,000.00 in funds which shall be allocated
towards the following conservation and site improvement activities that will be completed within
that first year. An additional $50,000 shall be paid in the Conservation account. These monies
shall be subject to the annual maintenance requirements. Monies remaining after these structures
are completed shall remain in the conservation account.
1. Garbage. The site has been used for many years as an unauthorized garbage
disposal site. There are many such disposal sites within the subject property. A considerable
amount of the garbage is of materials that are not generally accepted at the landfiII, such as tires
and refrigerators. An inventory of the site and types of garbage will be completed. All garbage
will be cleaned up and disposed of at an approved disposal site.
2. Fencing. The entire 480 -acre treatment and disposal site shall be fenced with a
wildlife -friendly, smooth wire fence on the boundary. (See Site Plan map attached hereto as
Exhibit 1, and incorporated herein by reference.) The exterior boundary fence will be placed on
the property lines. Along South Century Drive and Foster Road, the fence will be installed 100'
from the right-of-way to be more visually appealing. The fence will be erected to control public
access and prevent dumping of garbage. There will be signs posted on the fence indicating that
the area behind the sign is a reclaimed wastewater irrigation site.
3. Reforestation. The subject property has been heavily logged. The logging
treatments in this area have followed appropriate forestry practices by the U.S. Forest Service
and there is little to be done to improve the site for regeneration or wildlife habitat on that part of
the parcel that has been logged. Most dead trees will be removed to help reduce the risk of forest
fire. Some snags will be left if they are suitable to provide wildlife habitat. Some clusters of
trees will also be left for wildlife habitat. Along South Century Drive, additional trees will be
planted to screen the lagoon from the road (see Exhibit 1). A wildlife biologist or other expert
will be consulted as needed regarding the removal/retaining of dead trees or other vegetation.
4. Forage for Wildlife. The 100 acres of irrigation area will be planted with orchard
grass, which is a favorite of elk, and at certain times of the year, deer as well. The exterior 20
feet of the irrigation area (see Exhibit 1) will be planted with a variety of forbs for local wildlife
and migratory deer feed.
5. Wetlands. About 10 acres of the property will be designated as wetlands. This
area is located on both sides of South Century Drive in the western portion of the parcel (see
Page 1 - EXHIBIT C
Exhibit C (Conservation Plan) Final Version.doc
Exhibit I). These wetlands are to be protected. This area will be identified as a natural area on
the site plan. There are no plans for facilities in this area.
6. Noxious Weeds. Noxious weeds shall be removed and prevented from infestation
on the property.
7. Wildlife Habitat Enhancement. Shrubs, willows, and other tree species that
would benefit wildlife (both big game and small mammals) may be planted. The natural area
described in Section 6 may also be improved by planting beneficial vegetation and further
reclamation of the trespass ponds that had been constructed while under Forest Service
ownership. Nesting boxes would also be installed for local bird species. A wildlife specialist
will be consulted, as needed.
Annual Maintenance
Over the 10 years following the first year of ownership (years 2-11), $5,000 per year
shall be allocated to the conservation account towards the maintenance of the property and
implementation of this plan. These monies shall be put towards the following activities, which
will be accomplished annually, or more frequently, if needed:
1. Garbage. Each year, the entire property will be inspected for the additional
dumping of garbage. All garbage found will be removed and disposed of at an appropriate
disposal site.
2. Fencing. Each year, all of the fences will be inspected and repaired, as necessary.
3. Forestland. Each year, a complete inventory of the forestland will be made to
ensure the forest remains in good health. Dead trees and brush that would provide fuel for a fire
would be removed. All noxious and invasive weeds will be removed, as well.
4. Forbs. Each year, an inventory of the forb planting will be conducted. A
determination will be made as to whether additional plantings need to be made or if different
specifies need to be planted.
5. Wetlands. Each year, the wetland area will be checked to ensure that no adverse
changes have taken place. If negative changes do occur, appropriate remedial steps shall be
taken to restore the wetland area. This activity shall be done in consultation with the Oregon
Department of Fish and Wildlife.
6. Road Maintenance. Each year, OWWII will pay Beaver Road District for their
share of the cost to maintain Foster Road in accordance with the agreement signed by OWWII
and the Beaver Road District dated April 30, 2004.
Page 2 - EXHIBIT C
Exhibit C (Conservation Plan) Final Version.doc
EXHIBIT "1" OF CONSERVATION PLAN
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