HomeMy WebLinkAboutOrdinances 001-002 - Dest Resort RemappingFINDINGS
The Deschutes County Board of Commissioners (Board) held public hearings on January 20,
March 1, April 5, and April 19, 2010 on Ordinance Nos. 2010-001 and 2010-002 to consider
legislative plan amendments to Deschutes County Code (DCC) Chapters 22.23 and 23.84.1 The
Board closed the hearing to oral testimony, but left the written record open until Monday, May
24, 2010 at 10:00 a.m. The Board began deliberations on May 24. On June 7, the Board
conducted the first and second reading by title only and adopted both ordinances, declaring it an
emergency.
BACKGROUND
Initiated by staff at the request of the Board and further modified by the Deschutes County
Planning Commission, Plan Amendment 2009-3 and Text Amendment 2009-9 encompassed in
Ordinances Nos. 2010-001 and 2010-002 create a process and criteria the County will follow to
change its destination resort map. The two ordinances modify DCC Chapter 23.84, Destination
Resort Goals and Policies, and DCC Chapter 22.23, Destination Resort Map Amendment
Procedures by:
• Listing clear and objective mapping criteria for areas that are ineligible for siting destination
resorts;
• Listing clear and objective mapping criteria for areas that are eligible for siting destination
resorts; and,
• Describing the process for amending Deschutes County’s Destination Resort Map.
PROPOSED TEXT AMENDMENT
Staff proposed text amendments that create a process and criteria the County will follow to
change its destination resort map. The proposed text amendments are outlined in the attached
exhibits and underlined for new language and shown as strikethrough for deleted language.
PLANNING COMMISSION RECOMMENDATION
The Deschutes County Planning Commission on December 2 closed the public hearing,
deliberated and recommended that the Board adopt the above referenced ordinances, with the
following refinements included in the recommendations:
A. A deadline, to be determined by the Board for submitting map amendment applications.
B. A grandfather clause allowing existing mapped properties to remain on the map
regardless if they do not qualify under the new, 2010 eligibility criteria. The clause, which
has the same deadline as map amendment applications (see A above)
requires property owners to submit a written request specifying that they want the
existing resort designation to remain. The grandfathered designation will expire however,
for those that fail to submit a request by the established deadline.
1 A tax bill insert, complying with Ballot Measure 56 announced the first evidentiary hearing with the
planning commission on November 19, 2009. It was distributed in mid-October to all property owners in
Deschutes County. The Board hearing was noticed as required in DCC 22.12.020.
Page 1 of 9 - Exhibit B to Ordinance 2010-001
C. Applicants adding properties to the map must demonstrate consistency with the
Transportation Planning Rule, Oregon Administrative Rule 660-012-0060.2
D. Text further clarifying Deschutes County’s acknowledged Goal 5, Natural Resources,
Scenic and Historic Areas, and Open Spaces program in relationship to the siting of
destination resorts.
E. Multiple property owners that are contiguous and total 160 acres or greater become
eligible for adding lands to the destination resort map.
REVIEW CRITERIA
Two ordinances, Ordinance No. 2010-001 and 2010-002 are adopted. Both create a process
and criteria Deschutes County will follow to change its destination resort map. The plan
amendment embodied in Ordinance No. 2010-001 relates to eligibility criteria, and 2010-002 to
map amendment procedures. Deschutes County lacks specific criteria in DCC Titles 18, 22, or
23 for reviewing a legislative plan amendment. Nonetheless, because this is a Deschutes
County initiated plan amendment, the County bears the responsibility for justifying that the
amendments are consistent with the statewide planning goals and Deschutes County’s
Comprehensive Plan.
FINDINGS
1. Statewide Planning Goals.
The parameters for evaluating these specific amendments are based on an adequate factual
base and supportive evidence demonstrating consistency with Statewide Goal 1, Citizen
Involvement, Goal 2, Land Use Planning, Goal 8, Recreation, Goal 12, Transportation, Oregon
Revised Statute (ORS), case law, and Deschutes County Comprehensive Plan. The following
findings demonstrate that the two ordinances comply with applicable statewide planning goals
and state law. Statewide Goal 1 was met through this adoption process because these
amendments had two public hearings, one before the County Planning Commission, the
County’s citizen review board for land use matters, and one before the Board. Goal 2 was met
because ORS 197.455(2) allows for such an amendment process and these new code
provisions will be the framework for all future decisions on where to allow destination resorts in
this county. Additionally, the amendments mirror the statutory requirements that destination
resorts not be sited on specific types of farm and forest land, Open Space and Conservation
zoned land, and in areas where wildlife is protected. Thus, the provisions will not conflict with
Goals 3 through 5.
As for the County’s Goal 5 historic resources, the County’s regulations already require
preservation of those sites regardless of the use proposed for any given property. As for Goals
6 and 7, the County has other code provisions in the destination resort zoning code, DCC
Chapter 18.113 that are designed to protect the air, water and land resources quality and to
assure that they are not approved in areas subject to natural resources and natural hazards.
Goal 8 specifies the rural areas consisting of agricultural, forest, rural development, and natural
resources that are eligible for siting destination resorts.3 Lastly, according to the
2 http://www.publications.ojd.state.or.us/A142351.htm. This change complies with new case law,
Willamette Oaks, LLC v. City of Eugene and Goodpasture Partners, LLC, issued by the Oregon Court of
Appeals on November 18, 2009.
3 http://egov.oregon.gov/LCD/docs/goals/goal8.pdf
Page 2 of 9 - Exhibit B to Ordinance 2010-001
Comprehensive Plan, the numerous beneficial impacts of destination resorts are recognized by
Statewide Planning Goal 8 and by implementing statutes. The new provisions comply with Goal
9 as they will expand the opportunities for more destination resorts, which are a source of
economic development by providing jobs in the construction and service industries. In fact, as
described in the findings below, the initial reason decades ago the legislature allowed
destination resorts in rural areas was to provide a means of economic development particularly
in areas such as Central Oregon where farm and forest lands were not as productive as other
areas in the state. Although the County is generally not subject to Goal 10, these destination
resorts do provide additional housing, albeit, generally higher end housing. Goal 11 is not
applicable to destination resorts because destination resorts are specifically allowed urban-type
services such as sewer and water. New case law pertaining to Goal 12 requires a map
amendment to demonstrate consistency with the Transportation Plan Rule. Refer to Footnotes
#2 and #10 for more context.
Goal 13 is also addressed through the destination resort zoning code, DCC Chapter 18.113.
This specific chapter requires destination resorts during the conceptual master plan (CMP)
process to prepare utility and water conservation plans.4 Furthermore, the planning director or
hearings body during the CMP process must find that the minimum dimensional standards are
adequate to satisfy the intent of the comprehensive plan relating to solar access (DCC
18.113.060(G)(1)). Goal 14 is not applicable to destination resort map amendments because,
while destination resorts are built and operated much like an urban area could be, they are
specifically allowed in rural areas with some additional requirements. Goals 15 through 19 are
not applicable to any amendments to the County’s comprehensive plan because the county has
none of those types of lands. The eighth finding below further substantiates that the text
amendments are consistent with the Comprehensive Plan.
2. Destination Resort Map Amendment / Oregon Revised Statute
Originally, an acknowledged destination resort map could only be amended during a state
periodic review process. Deschutes County started its periodic review in 1988 and completed it
on January 23, 2003. In 2003, the Oregon Legislature amended ORS 197.629(3) exempting
counties from periodic review, excluding portions of its population within the urban growth
boundary (UGB) of a city. New language was added to ORS 197.455(2) in that same session
allowing counties to remap, not more frequently than once every thirty (30) months.5
Remapping is now dependent on creating a process for collecting and processing all map
amendments made within a thirty (30) month planning period.
3. Destination Resorts / Statewide Provisions
Initially, destination resorts were not allowed on rural lands in Oregon without an “exception” to
the statewide planning goals that limit development on farm or forest land. However, several
large resort developments preceded the statewide land use planning system, including Black
Butte, Sunriver, and Inn of 7th Mountain/Widgi Creek. In 1981, Governor Atiyeh's Task Force on
Land Use Planning recommended that destination resorts be allowed as an economic
development tool in rural areas, with certain sideboards to limit their effects and ensure that
their main focus would be overnight lodging rather than second home development. The
provisions authorizing the siting of destination resorts outside UGBs without taking exceptions to
statewide planning goals were adopted by the Land Conservation and Development
Commission (LCDC) in 1984 as amendments to Statewide Planning Goal 8. However, in 1987
4 DCC 18.113.050(B)(5) and (11c)
5 http://www.leg.state.or.us/ors/197.html
Page 3 of 9 - Exhibit B to Ordinance 2010-001
the entire content of Goal 8 was added to state law (ORS 197.435 – 197.465), at the request of
destination resort interests.6
4. Deschutes County Destination Resort Chapter
A destination resort chapter was added to the Deschutes County Comprehensive Plan in 1992
at the request of Eagle Crest Resort.7 Table 1 lists the mapping criteria used by the County to
determine resort eligibility. Under state law, destination resorts are only allowed on a county’s
destination resort map. As demonstrated in Table 1, the County supplemented the state’s
criteria by excluding large agricultural and forest parcels, and resource lands within one mile of
a UGB.8 The mapping was done in a phased sequence, based on pending farm and forest
studies. Additionally, as a result of a court case, lands within three miles of the county border
were also excluded since most of the lands in Jefferson and Crook counties had not yet been
evaluated. At that time, it could not be demonstrated they contained high value crop areas
excluded by Statewide Planning Goal 8 and ORS. If a property was not excluded from the map
by state or county criteria, it was automatically designated beginning in 1992 on Deschutes
County’s Destination Resort overlay map.
Table 1 – Deschutes County Destination Resort Map Criteria (1992)
Agency Criteria
Excluded Lands
State of Oregon 9
• Within 24 air miles of UGB with an existing population of 100,000 or more
unless residential uses are limited to those necessary for the staff and
management of the resort.
• On a site with 50 or more contiguous acres of unique or prime farmland
identified and mapped by the United States Natural Resources
Conservation Service, or its predecessor agency.
• On a site within 3 miles of a high value crop area unless the resort
complies with the requirements of ORS 197.445 (6) in which case the
resort may not be closer to a high value crop area than ½ - mile for each
25 units of overnight lodging or fraction thereof.
• On predominantly Cubic Foot Site Class 1 or 2 forestlands as determined
by the State Forestry Department, which are not subject to an approved
goal exception.
• In an especially sensitive big game habitat area as determined by Oregon
Department of Fish & Wildlife in July 1984 or as designated in
acknowledged comprehensive plan.
6 Agenda Item 4, October 15, 2008 LCDC Meeting - Informational Briefing and Public Hearing Regarding
Destination Resorts.
7 http://www.co.deschutes.or.us/dccode/title23/docs/chapter%2023.84.doc
8 Destination Resort Legislative History: Ordinance Nos. 92-001, 92-002, 92-003, 92-029, 92-030, 92-031,
92-032, 93-029, 93-030, 93-031, and 2001-019.
9 See footnote #5. ORS 197.435 to 197.467
Page 4 of 9 - Exhibit B to Ordinance 2010-001
Excluded Lands
• All resource (farm and forest) lands within one mile of a UGB.
• Irrigated Exclusive Farm Use (EFU) lands greater than 40 acres of
contiguous irrigation under one ownership.
• Irrigated EFU lands greater than 60 acres of non-contiguous land in the
same ownership.
• All Forest Use 1(F-1) zoned property.
• Wildlife: a) Tumalo & Metolius deer winter range; b) antelope winter range
east of Bend; c) antelope winter range near Millican; d) elk range; e) sage
grouse range.
Today, there are 112,448 acres in Deschutes County mapped for destination resorts. A vast
majority are unsuitable for resort development because they are irreversibly committed to
platted subdivisions, rural residential development or small lots. Notable statistics include:
• 10% of mapped area (10,931 acres) is developed or planned as a destination resort or
resort community (Sunriver, Black Butte, Inn of 7th Mountain/Widgi Creek); and,
• 54% of mapped area (60,175 acres) contains properties less than 160 acres, including
several platted subdivisions.
5. Ordinance 2010-001 / Destination Resort Goals and Policies
Ordinance 2010-001 amends the Comprehensive Plan, DCC Chapter 23.84, to include new
goals and policies that describe the areas that are eligible and ineligible for siting a destination
resort. The criteria noted in Table 2 demonstrates that the new provisions provide clear and
objective mapping criteria.
/ / /
Included Lands
Deschutes
County
• Forest Use 2 (F-2), Multiple Use Agriculture (MUA-10), and Rural
Residential (RR-10) zones.
• Unirrigated EFU lands.
• Irrigated EFU lands less than 40 acres of contiguous irrigation under one
ownership.
• Irrigated EFU lands with 60 acres or less of non-contiguous land in the
same ownership.
Page 5 of 9 - Exhibit B to Ordinance 2010-001
Table 2 - Map Eligibility Criteria
Ineligible Lands
St
a
t
e
o
f
O
r
e
g
o
n
Destination resorts shall not be sited in Deschutes County in the following areas:
• Within 24 air miles of an urban growth boundary with an existing population of
100,000 or more unless residential uses are limited to those necessary for the staff
and management of the resort;
• On a site with 50 or more contiguous acres of unique or prime farm land identified
and mapped by the Soil Conservation Service or within three miles of farm land
within a High-Value Crop Area;
• On predominantly Cubic Foot Site Class 1 or 2 forest lands which are not subject to
an approved Goal exception;
• On areas protected as Goal 5 resources in an acknowledged comprehensive plan,
where all conflicting uses have been prohibited to protect the Goal 5 resource
• In an especially sensitive big game habitat area as determined by ODFW in July
1984 or designated in an acknowledged Comp Plan.
i. Tumalo deer winter range;
ii. Portion of the Metolius deer winter range;
iii. Antelope winter range east of Bend near Horse Ridge and Millican
• Sites less than 160 acres
• Areas of Critical State Concern.
De
s
c
h
u
t
e
s
C
o
u
n
t
y
• Sites listed below that are inventoried Goal 5 resources, shown on the Wildlife
Combining Zone, that the County has chosen to protect:
i. Antelope Range near Horse Ridge and Millican;
ii. Elk Habitat Area; and
iii. Deer Winter Range
• Wildlife Priority Area, identified on the 1999 ODFW map submitted to the South
County Regional Problem Solving Group;
• Lands zoned Open Space and Conservation (OS&C);
• Lands zoned Forest Use 1 (F-1);
• Irrigated lands zoned Exclusive Farm Use (EFU) having 40 or greater contiguous
acres in irrigation;
• Non-contiguous EFU acres in the same ownership having 60 or greater irrigated
acres;
• Farm or forest land within one mile outside of urban growth boundaries;
• Lands designated Urban Reserve Area under ORS 195.145;
• Platted subdivisions;
Page 6 of 9 - Exhibit B to Ordinance 2010-001
6. Ordinance 2010-002 / Destination Resort Map Amendment Procedures
Ordinance 2010-002 amends the County’s procedural code, DCC Chapter 22.23, to include new
destination resort map amendment procedures, summarized in Table 3, that describe the
process for submitting a map amendment application.
Table 3 - Destination Resort Map Amendment Procedures
Procedures
The existing comprehensive plan map of sites eligible for destination resorts (“eligibility
map”) may be amended as follows:
• All amendments to the eligibility map shall be processed simultaneously and no more than
once every 30 months.
• The deadline for applications for the first eligibility map amendment shall be the first Tuesday in
September by 5:00 p.m..
• Lands shown on the existing eligibility map but unable to comply with DCC 23.84.030(3)(a),
23.84.030(3)(b), 23.84.030(3)(c) and 23.84.030(3)(d) will remain on the eligibility map if
property owners file a formal request with the Deschutes County Community Development
Department on an authorized county form by the first Friday in January at 5:00 p.m. to remain
eligible.
• In addition to any other county code provision regarding notice, 30 days prior to the end of the
next 30-month period for amendments to the eligibility map, Deschutes County shall publish a
notice announcing opportunities for property owners to apply for an amendment to the eligibility
map.
• Property owners must file applications for an eligibility map amendment prior to the last day of
the 30-month period by 5:00 p.m.
• Any additional applications filed after the deadline in DCC 22.23.010(C) will be processed at
the end of the next 30-month cycle.
• Applications to either remove property from or add property to the eligibility map may be
initiated by the Board, or, if by a property owner, shall:
Eligible Lands
For those lands not located in any of the areas identified as ineligible, destination
resorts may be sited in the following areas:
• Forest Use 2 (F-2), Multiple Use Agriculture (MUA-10), and Rural Residential (RR-
10) zones;
• Unirrigated Exclusive Farm Use (EFU) land;
• Irrigated lands zoned EFU having less than 40 contiguous acres in irrigation;
• Non-contiguous irrigated EFU acres in the same ownership having less than 60
irrigated acres;
Parcel Size
De
s
c
h
u
t
e
s
C
o
u
n
t
y
• Minimum site of 160 contiguous acres or greater under one or multiple ownerships
Page 7 of 9 - Exhibit B to Ordinance 2010-001
1. Be submitted by the property owner or a person who has written authorization from the
property owner as defined herein to make the application;
2. Be completed on a form prescribed by the Planning Director;
3. Be accompanied by the appropriate filing fee, unless such fees are waived by the Board of
County Commissioners;
4. Include documentation that demonstrates compliance with DCC 23.84.030(3)(a),
23.84.030(3)(b), 23.84.030(3)(c) and 23.84.030(3)(d);
5. For applications adding properties to the eligibility map, the applicant will be required to
demonstrate consistency with the Transportation Planning Rule at OAR 660-012-0060.10
• The planning director shall retain any applications received prior to the expiration of the 30-
month period.
• Multiple applications shall be consolidated.
• The planning director shall schedule the hearing before the planning commission or hearings
officer after the expiration of the 30-month period.
7. Formal Map Amendments
Because ORS 197.455(2) allows destination resort map amendments only every 30 months, the
Board finds a need to establish deadlines for map amendment applications and a grandfather
clause that allows existing mapped properties to remain on the map regardless of whether they
do or do not qualify under the new, 2010 eligibility criteria.
Thus, the new provisions in DCC 22.23.010(B) and (C) state:
• (B). The deadline for applications for the first eligibility map amendment shall be the first
Tuesday in September by 5:00 p.m.
• (C). Lands shown on the existing eligibility map but unable to comply with DCC
23.84.030(3)(a), 23.84.030(3)(b), 23.84.030(3)(c) and 23.84.030(3)(d) will remain on the
eligibility map if property owners file a formal request with the Deschutes County
Community Development Department on an authorized county form by the first Friday in
January at 5:00 p.m.
8. Consistency with Deschutes County Comprehensive Plan
Deschutes County’s Destination Resort Goal, DCC 23.84.020, provides for development of
destination resorts in the County consistent with Statewide Planning Goal 8 in a manner that will
be compatible with farm and forest uses, existing rural development, and in a manner that will
maintain important natural features, such as habitat of threatened or endangered species,
streams, rivers and significant wetlands. As summarized in Tables 1 and 2, and cited in
Ordinance 2010-001, Exhibit A, Deschutes County’s proposed eligibility criteria continue to
protect certain agricultural and forest lands, and acknowledged Goal 5 natural resources. As
discussed above, these new provisions were designed to comply with the statewide planning
10 See note 2. Willamette Oaks, LLC v. City of Eugene and Goodpasture Partners, LLC, issued by the
Oregon Court of Appeals on November 18, 2009 requires a local plan amendment to demonstrate
consistency with Statewide Planning Goal 12 and the Transportation Planning Rule. Deschutes County
fulfills this obligation as cited in Table 3 above and specifically, Ordinance No. 2010-002, Exhibit A, DCC
22.23.010(G)(5).
Page 8 of 9 - Exhibit B to Ordinance 2010-001
goals. Therefore, because the County’s comprehensive plan was adopted to comply with those
goals and had been acknowledged as such, the new provisions also comply with the County’s
comprehensive plan policies and goals, which are rarely more restrictive than the statewide
planning goals.
Additionally, Ordinance 2010-002, Exhibit A, proposes a grandfathered clause for existing
mapped properties to remain on the map regardless if they do not qualify under the new, 2010
eligibility criteria. Even these grandfathered properties, if so chosen to remain mapped, are
consistent with the Comprehensive Plan because the existing destination resort map is
acknowledged by the Oregon Department of Land Conservation and Development.11 Map
amendments represent only the first of several steps for a property to become entitled and
developed as a destination resort. The Deschutes County Destination Resort Combining Zone,
DCC 18.113 specifies an extensive burden of proof for an applicant seeking conceptual master
plan as well as final master plan approval. That chapter was found years ago to be in
compliance with the County’s comprehensive plan and, as stated above, provides many of the
protections required by the County’s Comprehensive Plan policies.
11 See Finding #2, page 3.
Page 9 of 9 - Exhibit B to Ordinance 2010-001