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HomeMy WebLinkAboutHearing - Zone Chg - F1 to F2rf0vT E s C 2a -c Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org AGENDA REQUEST & STAFF REPORT For Board Business Meeting of January 5, 2009 Please see directions for completing this document on the next page. DATE: 12/8/08 FROM: Will Groves CDD x6518 TITLE OF AGENDA ITEM: A de novo hearing on the Belveron Real Estate Partners' proposed zone change from Forest Use (F-1) to Forest Use (F-2) for an approximately 179.49 -acre parcel located west of Highway 97 and south of Sunriver. PUBLIC HEARING ON THIS DATE? Yes BACKGROUND AND POLICY IMPLICATIONS: The applicant requests approval of a zone change from F-1 to F-2 for the subject property. Although the applicant did not file a development application in conjunction with this application, the intent of the proposed zone change is to expand the uses permitted on the subject property to include potential mapping and development of a destination resort, a use not permitted in the F-1 Zone. The Hearings Officer found the application met all relevant criteria and approved the applicant's proposed zone change from F-1 to F-2 for the subject property, in a decision dated November 26, 2008. Under 22.28.030(C) zone changes concerning lands designated for forest use shall be heard de nov( before the Board of County Commissioners without the necessity of filing an appeal, regardless of 1 he determination of the Hearings Officer. The county accepted the application as complete on September 21, 2008. The 150 -day clock will e> pire on February 18, 2009. FISCAL IMPLICATIONS: None. RECOMMENDATION & ACTION REQUESTED: Conduct de novo hearing. ATTENDANCE: BOCC, Legal, Will Groves DISTRIBUTION OF DOCUMENTS: BOCC, Legal, Will Groves Community Development Department Planning Division Building Safety Division Environmental Health Division December 5, 2008 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.lisjcddj MEMORANDUM To: Deschutes Board of County Commissioners From: Will Groves, Senior Planner Subject: A de novo hearing on a proposed zone change from Forest Use (F-1) to Forest Use (F-2) for an approximately 179.49 -acre parcel located west of Highway 97 and south of Sunriver. BACKGROUND The applicant requests approval of a zone change from F-1 to F-2 for the subject property. Although the applicant did not file a development application in conjunction with this application, the intent of the proposed zone change is to expand the uses permitted on the subject property to include potential mapping and development of a destination resort, a use not permitted in the F-1 Zone. The Hearings Officer found the application met all relevant criteria and approved the applicant's proposed zone change from F-1 to F-2 for the subject property, in a decision dated November 26, 2008. Under 22.28.030(C) zone changes concerning lands designated for forest use 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. The county accepted the application as complete on September 21, 2008. The 150 -day clock will expire on February 18, 2009. STAFF DISCUSSION Quality Services Performed with Pride Staff concurs with the Hearings Officer decision. As of the writing of this memo, there is no public or agency opposition to this proposal. DOCUMENTATION A copy of the staff report and Hearings Officer decision are attached for your review. SCHEDULE This item is scheduled for a de novo hearing at 10 A.M. on January 5, 2009. Please feel free to contact me with any questions or concerns. F DEscetonsmunitrasvelopiwent Department APPLICANT'S ATTORNEY: REQUEST: Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 ER: Belveron Real Estate Partners, LLC (541)388-6575 FAX (541)385-1764 268 Bush Street, #3534 http://www.co.deschutes.or. Js/cdd/ San Francisco, California 94104 STAFF REVIEWER: HEARING DATE/ RECORD CLOSED: Liz Fancher 644 N.W. Broadway Street Bend, Oregon 97701 The applicant requests approval of a zone change from F-1 to F-2 for an approximately 179.49 -acre parcel located west of Highway 97 and south of Sunriver. Will Groves, Senior Planner October 14, 2008 I. APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.136, Amendments * Section 18.136.010, Amendments * Section 18.136.020, Rezoning Standards Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan 1. Chapter 23.92, Forest Lands * Section 23.92.020, Goal * Section 23.92.030, Policies Oregon Administrative Rules (OAR) Chapter 660 B. C. 1. OAR 660-012-0060, Plan and Land Use Regulation Amendments 2. OAR 660-015-0000, Statewide Planning Goals Belveron ZC-07-5 Page 1 of 19 Quality Services Performed with Pride II. FINDINGS OF FACT: A. Location: The subject property is located approximately 18 miles southwest of Bend and about 5 miles southwest of Sunriver. It abuts Vandevert Road on the north, Blue Eagle Road on the west, a strip of land owned by the Burlington Northern -Santa Fe (BNSF) Railroad on the east, and land owned and managed by the United States Forest Service (USFS) on the south. The subject property is further identified as Tax Lot 104 on Deschutes County Assessor's Map 20-11-00. B. Zoning and Plan Designation: The subject property is zoned F-1, Forest Use and designated Forest on the Deschutes County Comprehensive Plan map. C. Site Description: According to the Assessor's records, the subject property is approximately 179.49 acres in size.' The property is irregular in shape, undeveloped and vegetated with ponderosa and lodgepole pine trees and native brush and grasses. The property is known as Parcel C of Tract C, a 950 -acre parcel identified by the USFS in 2000 for conveyance into private ownership. The applicant purchased the subject property on February 20, 2008. The subject property is isolated from other USFS lands in the Deschutes National Forest by the BNSF railroad tracks, Highway 97, and destination resort and other residential developments. D. Surrounding Zoning and Land Uses: Land to the north across Vandevert Road consists of Parcel A of Tract C of the former USFS land, a 110 -acre parcel. On May 30, 2007 this Hearings Officer issued a decision approving a zone change from F-1 to F-2 for Parcel A of Tract C (Pine Forest, ZC-06-3, Ordinance No. 2007-022). The Deschutes County Board of Commissioners (board) approved this zone change on September 5, 2007 by Ordinance No. 2007-022. Adjacent to Parcel A on the west is the Caldera Springs destination resort on land zoned F-2. Land further to the north of the subject property consists of the Sunriver Business Park developed with 120 individually -owned commercial uses and the urban unincorporated community of Sunriver which includes commercial shopping centers, a resort, golf courses and other recreational amenities, convention facilities, an airport and marina, single-family homes, and vacation rental properties. Land to the south is zoned F-1 and owned and managed by the USFS. The portion of this land abutting the subject property on the west is located in a landscape management corridor for Highway 97 and is zoned LM. Land to the east is zoned F-1 and consists of the BNSF railroad right-of-way and rail line. Further to the east is Highway 97 and a slender strip of USFS land zoned F-1. Land east across Highway 97 is zoned F-1 and includes large tracts of USFS land as well as a 24 -acre parcel owned and managed by Gas Transmission Northwest Corporation developed with an interstate underground natural gas transmission line, compressor 1 The deed conveying the subject property to the applicant states the property contains approximately 183.25 acres. Because the size of the property is not relevant to the proposed zone change the Hearings Officer finds I need not resolve this discrepancy. Belveron ZC-08-4 Page 2 of 19 building, control building and garage. To the west is Blue Eagle Road. Land across the road to the west is zoned Rural Residential (RR -10) and consists of the Vandevert Acres, Vandevert Acres South, and Pine River Estates residential subdivisions developed approximately 80 rural lots with single-family dwellings. Further to the west and northwest is the Crosswater destination resort. E. Procedural History: The applicant purchased the subject property on February 20, 2008 and submitted the subject zone change application on August 21, 2008. The application was deemed complete on September 22, 2008. Therefore, the 150 -day period for issuance of a final local land use decision under ORS 215.427 expires on February 19, 2008. A public hearing on the applicant was held on October 14, 2008. At the hearing, the Hearings Officer received testimony and evidence and closed the evidentiary record. The applicant waived the filing of final argument pursuant to ORS 197.763 and the record closed on October 14, 2008. As of the date of this decision there remain 87 days in the 150 -day period. F. Proposal: The applicant requests approval of a zone change from F-1 to F-2 for the subject property. Although the applicant did not file a development application in conjunction with this application, the intent of the proposed zone change is to expand the uses permitted on the subject property to include potential mapping and development of a destination resort, a use not permitted in the F-1 Zone. G. Public/Private Agency Comments: The Planning Division sent notice of the applicant's proposal to a number of public and private agencies and received responses from: the Deschutes County Forester, and Senior Transportation Planner; and the Department of Land Conservation and Development (DLCD). These comments are included in the record and are incorporated herein by reference. The following agencies did not respond to the notice: the Deschutes County Road Department; the La Pine Fire Department; the Oregon Departments of Fish and Wildlife (ODFW), Transportation, Forestry, and Water Resources, Watermaster-District 11; the USFS; the United States Fish and Wildlife Service (USFWS); the Sunriver Owners Association; and Sunriver Resort. H. 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 750 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, the county had received no letters from the public in response to these notices. No members of the public testified at the public hearing. I. Lot of Record: The applicant asserts the subject property constitutes a legal lot of record because it was created by a deed from the USFS to the applicant/property owner, issued pursuant to the Bend Pine Nursery Land Conveyance Act of November 22, 2000, which authorized the Deschutes National Forest to convey into private ownership federal lands including Tract C and the subject property which is Parcel C thereof. Section 18.04.030 Belveron ZC-08-4 Page 3 of 19 of the county's zoning ordinance defines "lot of record" to exclude lots or parcels created by a deed unless such creation conformed to all zoning and subdivision or partition requirements applicable on the date of the conveyance. On November 22, 2000 Title 17 of the Deschutes County Code, the county's subdivision/partition ordinance, required partition approval to create a new lot or parcel in the F-2 Zone, and Title 18, the Deschutes County Zoning Ordinance, established minimum lot sizes and other requirements for new lots and parcels. Nevertheless, the applicant argues these code provisions do not apply to conveyances of federal land in general, and to the conveyance of the subject property from the USFS to the applicant in particular, because federal land is exempt from state and local land use regulations by virtue of the Property and Supremacy Clauses of the U.S. Constitution, and therefore the USFS can dispose of its property as it sees fit without county land use approval. The Hearings Officer believes the applicant's analysis is correct, and therefore I find the subject property — Parcel C of Tract C -- constitutes a separate legal lot of record. III. CONCLUSIONS OF LAW: A. Historical Background: FINDINGS: The record indicates that in 2000 the U.S. Congress enacted the 2000 Bend Pine Nursery Land Conveyance Act (Public Law 106-526) which authorized the Deschutes National Forest to exchange or transfer into private ownership lands identified as no longer suitable for USFS management. The record indicates the Act identified seven parcels for potential transfer to private ownership, including a 950 -acre parcel of USFS land called the "Tract C Land Conveyance." That tract included three parcels: Parcel A, Parcel B, and Parcel C which is the subject property. The Deschutes National Forest Bend -Fort Rock Ranger District conducted an environmental assessment of Tract C. Based on that assessment, USFS Regional Forester Linda Goodman issued a "Decision Notice and Finding of No Significant Impact" (hereafter "decision") authorizing Tract C to be transferred from the USFS into private ownership. As discussed above, the applicant purchased Parcel C from the USFS. Copies of the environmental assessment and decision for Tract C are included in this record as attachments to the applicant's burden of proof. The decision states in pertinent part: "The primary purpose for conveying lands out of federal ownership is to dispose of these isolated tracts of National Forest System Lands that have lost their National Forest character and are difficult to manage. Sale of the lands would have a second purpose, which is to use the proceeds to help fund new Forest Service administrative facilities, as provided in the 2000 Bend Pine Nursery Land Conveyance Act (Public Law 106-526). Exchange of the lands would have a third purpose, which is to acquire private lands that would contribute significant resource values to the National Forest System, or otherwise be in the public interest to acquire." The decision identifies the alternatives to conveyance of Tract C considered by Ms. Goodman, and includes the following findings in support of her decision that Tract C should be transferred Belveron ZC-08-4 Page 4 of 19 into private ownership: "I have concluded that the conveyance of these federal lands is in the public interest, and that conveyance of the parcels outweighs benefits of keeping them in federal ownership. The parcels are isolated National Forest properties, nearly surrounded by private land. It is difficult and not cost effective to manage these lands as part of the National Forest System given their rural residential setting, configuration, size, and existing or increasing encroachments and unauthorized uses. These parcels are identified as being available for disposal under the Bend Pine Nursery Land Conveyance Act signed into law November 22, 2000. This decision implements the Act, allowing lands to be used for purposes potentially better suited to the location. The properties have lost their character and are no longer representative of a National Forest, even though people in the local neighborhood may feel that they still have local character as wooded or forested areas. The trees provide pleasant aesthetics to the local residents, but the area can no longer be effectively managed for broader National Forest goals. The properties have become heavily influenced by their rural residential setting. Unauthorized uses, including dumping of garbage, creation of new roads and trails, and illegal firewood and tree removal, have all contributed to the loss of National Forest character. It may not be apparent to the casual visitor that these are National Forest lands. Future land uses will be under the jurisdiction of county and state regulations and zoning requirements, and I am confident that future approved uses would be balanced and responsive to local community needs, protect local resources and scenic values, and incorporate site specific concerns of nearby residents and the local public. Social issues such as school needs, transportation, and water and sewer services, would be considered and addressed in the land use application process for any developments proposed in the future. I believe that under private ownership, the properties would be utilized in a way that is more responsive to the needs and economy of the local area." B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance ZONE CHANGE APPROVAL CRITERIA 1. Chapter 18.136, Amendments a. Section 18.136.010, Amendments DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for text or legislative map changes shall be as set forth in DCC 22.12. A request by a property owner for a quasi-judicial map amendment shall be accomplished by filing an application on forms Belveron ZC-08-4 Page 5of19 provided by the Planning Department and shall be subject to applicable procedures of DCC Title 22. FINDINGS: The applicant has requested approval of a zone change from F-1 to F-2 for the subject property. The record includes a zone change application filed by the applicant/property owner on a county form and accompanied by the required application fee. This zone change application is being processed pursuant to Title 22 of the Deschutes County Code. b. 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: FINDINGS: In this Hearings Officer's May 2007 decision in Pine Forest (ZC-06-3), the zone change from F-1 to F-2 for Parcel A of Tract C, I made the following relevant findings: "This sentence is introductory in nature and is modified by the second sentence which identifies the applicable zone change approval criteria as those factors to be demonstrated' by the applicant in Paragraphs (A) through (D) of this section. In other words, the applicant must demonstrate the proposed zone change will best serve the public interest by demonstrating compliance with these four factors." I adhere to that holding here and discuss the four factors in the findings below. A. That the change conforms with the Comprehensive Plan, and the change is consistent with the plan's introductory statement and goals. FINDINGS: The Hearings Officer finds this factor contains two requirements: (1) the zone change conforms to the Comprehensive Plan and (2) it is consistent with the plan's introductory statement and the plan's goals. Each of these is discussed below. 1. Conformance with Comprehensive Plan. The comprehensive plan designation of the subject property is Forest. Property designated for forest uses can be zoned either F-1 or F-2, depending on the degree to which the land is "impacted" as discussed in the findings below. Therefore, the Hearings Officer finds the applicant's proposal to rezone the subject property to F-2 conforms with the property's plan designation. 2. Consistency with the Plan's Introductory Statement and Goals. In this Hearings Officer's Pine Forest decision I made the following relevant findings, adopted by the Deschutes County Board of Commissioners (board) in their decision approving the zone change: "Comprehensive plan statements, goals and policies typically are not intended to, Belveron ZC-08-4 Page 6 of 19 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 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 Belveron ZC-08-4 Page 7 of 19 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 adheres to these findings here, and again finds the above -referenced introductory statements and goals are not approval criteria in this zone change application. However, plan provisions may require consideration by the decision maker even if they are not applicable approval criteria. Save Our Skyline v. City of Bend, 48 Or LUBA 192, 209 (2004). In this Hearings Officer's Pine Forest decision I also made the following relevant findings, adopted by the board in its decision: "The Deschutes County Planning Commission and Board of County Commissioners (board) undertook a county -wide legislative process [1992 or earlier] to identify and zone all public forest land F-1, and to zone all private forest lands as either F-1 or F-2 based on whether such lands were `unimpacted' or `impacted' considering certain characteristics set forth in the plan policies. The findings in support of Ordinance 92-024 and Ordinance 92-026, which amended the zoning ordinance and map to conform with the new forest land plan policies, state that in rezoning all private forest lands the board did not give additional consideration to soil capability, and conducted site-specific Belveron ZC-08-4 Page 8 of 19 evaluations of 26 individual forest tracts identified by staff and/or the property owners as requiring individual consideration because they had characteristics of both `unimpacted' and `impacted' forest land. Of these 26 tracts, 14 were zoned F-1 and 12 were zoned F-2." Copies of Ordinance Nos. 92-024 and 92-026 are included in this record as Exhibits J and K to the applicant's burden of proof. Chapter 23 of the Deschutes County Code codifies the county's comprehensive plan. Section 23.92.030 sets forth the forest land policies adopted in 1992. In this Hearings Officer's Pine Forest decision I found the policies in Section 23.92.030 are to be taken into "consideration" in a quasi-judicial zone change, but are not mandatory approval criteria such that each policy must be met before a zone change may be approved. The board adopted these findings in its decision approving the zone change. These plan policies are discussed in the findings below. 1. 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. FINDINGS: The goal of the F-2 Zone is to conserve forest lands for forest uses. The applicant's proposed F-2 zoning is consistent with this goal. 2. Section 23.92.030, Policies 1. Deschutes County shall designate forest lands on the comprehensive plan map consistent with Goal 4 and OAR 660, Division 6. 2. Deschutes County shall zone forest lands for uses allowed pursuant to OAR 660, Division 6. In addition to forest practices and operations and uses auxiliary to forest practices, as set forth in ORS 527.722, Deschutes County shall allow in the forest environment the following general types of uses: * * * 3. In order to conserve and maintain the unimpacted forest land base for forest use the County shall identify and zone as F-1 those lands which have the following characteristics: * * *. 4. In order to conserve and maintain impacted forest lands for forest use the County shall Belveron ZC-08-4 Page 9 of 19 identify and zone as F-2 those lands which have the following characteristics: * * *. FINDINGS: In this Hearings Officer's Pine Forest decision I found Policies 1 through 4 direct the county to make forest land zone change decisions based on a consideration of the "unimpacted" and "impacted" forest land characteristics listed in Policies 3 and 4. The Board concurred with my findings and in its decision approving the zone change found that all factors are to be considered and weighed when deciding whether to apply F-1 or F-2 zoning. The following findings address and compare each policy relative to the two zoning districts. Policy 3 Policy 4 a. Consist predominantly of ownerships a. Consist predominantly of ownerships not developed by residences or non- developed for residential or other non -forest forest uses. uses. FINDINGS: The subject property is undeveloped but is located in an area that is dominated by rural residential and resort development. The property is not suited to commercial forest use for the reasons explained by the USFS in the environmental assessment, set forth in the findings above. In addition, these policies refer to "ownerships." The area adjacent to and near the subject property is developed with residences in a rural residential exception area. These developments, along with public roadways and the BNSF railroad line, separate most of the subject property from undeveloped forest lands. Therefore, the Hearings Officer finds this characteristic weighs in favor of F-2 zoning for the subject property. b. Consist predominantly of contiguous b. Consist predominantly of ownerships less ownerships of 160 acres or larger in size. than 160 acres in size. FINDINGS: The subject property consists of approximately 179.49 acres of land in a contiguous single ownership. This policy also is written in terms of "ownerships." The properties that adjoin the western boundary of the subject property are all less than 160 acres in size and primarily for that reason were included in a rural residential exceptions area. Land to the north is zoned F-2, some of which is developed as a destination resort with small lots. The subject property is separated from forest land to the east by the BNSF railroad line. Only a very small part of the subject property, its narrow south boundary, adjoins forest land. For these reasons, the Hearings Officer finds this characteristic weighs in favor of F-2 zoning for the subject property. c. Consist predominantly of ownerships c. Consist of ownerships generally contiguous contiguous to other lands utilized for to tracts containing less than 160 acres and commercial forest or commercial farm residences, or adjacent to acknowledged uses. exception areas. FINDINGS: The uses surrounding the subject property are discussed in detail in the findings above. The subject property abuts an acknowledged rural residential exceptions area to the west Belveron ZC-08-4 Page 10of19 that is developed with three rural residential subdivisions with hundreds of lots. A small portion of the property's southern property line abuts USFS forest land. The subject property abuts Vandevert Road to the north and the BNSF rail line to the east. Consequently, the majority of the subject property abuts either rural residential uses in an acknowledged exceptions area, roads used to provide access to thee rural residential properties, or the railroad line, rather than land contiguous to lands utilized for commercial farm or forest uses. Therefore, the Hearings Officer finds this characteristic weighs in favor of F-2 zoning of the subject property. d. Accessed by arterial roads or roads d. Provided with a level of public facilities and intended primarily for forest services, including roads, intended primarily management. for direct services to rural residences. FINDINGS: The record indicates the subject property is not accessed by arterial roads or roads used primarily for forest management. Rather, the property has access from Vandevert Road and Blue Eagle Road — both roads intended primarily for access to rural residential subdivisions, forest recreational uses, resort developments and urban uses within Sunriver. Consequently, the Hearings Officer finds access to the subject property is via roads characteristic of F-2 zoned land. The Hearings Officer also finds the level of other public facilities and services on surrounding properties is characteristic of F-2 zoned land because they have been designed and developed to serve the nearby rural residential subdivisions and destination resorts. These include underground telephone lines along the south side of Vandevert Road and along Blue Eagle Road, and an overhead power line running north -south along the western portion of the subject property. For these reasons, I find this characteristic favors F-2 zoning of the subject property. e. Primarily under forest management. FINDINGS: This is a characteristic of F-1 zoned lands only. The owners of the subject property are not managing it for forest production. In this Hearings Officer's Pine Forest decision I found that forest management "means the property is managed principally for one or more of the forest operations, practices and uses described in Title 18." The board adopted these findings in its decision, and set froth the relevant definitions at page 14 of its decision. The USFS invitation for bids and environmental assessment for the subject property state the subject property was identified for transfer into private ownership because it is no longer suitable for forest management. The invitation for bids states "[c]onveyance out of federal ownership would consolidate land ownership patterns in the area and eliminate approximately 945 acres of National Forest lands that are separated and isolated from larger blocks of national Forest lands and difficult to manage for National Forest purposes." In addition, the environmental assessment concludes the subject property is not suitable for forest management for the same reasons. In my Pine Forest decision I found that in 1992 the county zoned all federal forest lands F-1 without any analysis of the characteristics set forth in the comprehensive plan. For these reasons, I find this characteristic weighs in favor of F-2 zoning for the subject property. In this Hearings Officer's Pine Forest decision I found that not all of the characteristics of Belveron ZC-08-4 Page 11 of 19 either unimpacted (F-1) or impacted (F-2) forest lands must be satisfied in order to re -zone property from F-1 to F-2. The board adopted these findings in its decision approving the Pine Forest zone change. Because the subject property was transferred into private ownership by the USFS because it is no longer suitable for commercial forestry, and because the characteristics described in Policies 3 and 4 weigh in favor of F-2 zoning, I find rezoning the subject property to F-2 is appropriate and consistent with relevant comprehensive plan policies. 5. Except as identified in this plan non -forest uses shall be discouraged in existing forested areas. FINDINGS: The applicant is requesting a zone change from F-1 to F-2 to allow uses on the subject property that are permitted in the F-2 Zone, potentially including mapping for and development of a destination resort. The county's zoning ordinance has been acknowledged and implements the comprehensive plan including this plan policy. Therefore, the Hearings Officer finds the applicant's proposal is consistent with this plan policy. B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone change classification. FINDINGS: The purpose statements of the F-1 and F-2 zones are the same — i.e., "to conserve forest lands." Therefore, the Hearings Officer finds that either F-1 or F-2 zoning of the subject property would be consistent with the purpose and intent of the proposed zone. Moreover, the uses permitted in the F-1 and F-2 zones are identical with the exception of the potential for F-2 zoned property to be mapped for and developed with a destination resort. However, in its Pine Forest decision the board found it is not appropriate to consider potential destination resort development under this approval criterion because such development would require both a lengthy and complex legislative process to map the subject property for such development, and an equally complex, multi -step quasi-judicial process to obtain conceptual and final destination resort master plan approval. The board relied on the decision of the Land Use Board of Appeals (LUBA) in Mason v. City of Corvallis, 49 Or LUBA 199 (2005). In that case, LUBA held that in reviewing a proposed zone change under the city's land use regulations, the city did not err in declining to assume the parcel would be developed with the most intensive uses in part because the applicant did not propose such uses, but also in part because of the use limitations and review standards applicable to development of uses in that zone. In addition, the board found that because the county's zoning ordinance has been acknowledged as consistent with the Goal 4 and its administrative rules, including authorizing destination resorts and other non -forest uses as conditional uses in the F-2 Zone, destination resort use is not inconsistent with the goal of the F-2 Zone. The Hearings Officer adheres to the board's findings here, and finds the applicant's proposed zone change from F-1 to F-2 will not have any effect on the conservation of forest lands. C. That changing the zoning will presently serve the public health, safety and welfare considering the following factors: Belveron ZC-08-4 Page 12 of 19 FINDINGS: In the Hearings Officer's Pine Forest decision 1 found this sentence is introductory in nature and is modified by the phrase "considering the following factors"- i.e., the specific approval criteria in Paragraphs (1) and (2) of this section. In other words, I found the applicant must demonstrate the proposed zone change will best serve the public interest by demonstrating compliance with these two factors. The board adopted this finding in its decision approving the Pine Forest zone change. Therefore, I adhere to that finding here. 1. The availability and efficiency of providing necessary public services and facilities. FINDINGS: This criterion requires consideration of necessary public services and facilities to develop the property as would be allowed under the proposed zoning classification. The public services and facilities required to develop the property are dependent upon which uses are allowed on the property. As discussed above, the uses permitted in the F-1 and F-2 Zones are identical except for the potential for mapping and development with a destination resort in the F- 2 Zone. However, as discussed in the findings above, the Hearings Officer has found it is not appropriate for me to assume the subject property would be developed with a destination resort if it were rezoned to F-2. Accordingly, I find approval of the requested zone change will not impact the availability and efficiency of providing necessary public services and facilities to the subject property. In addition, as discussed in the findings above, the subject property already has a level of public services and facilities characteristic of impacted F-2 zone land. 2. The impacts on the surrounding land use will be consistent with the specific goals and policies contained within the Comprehensive Plan. FINDINGS: The relevant plan goals and policies are addressed in the findings above. The Hearings Officer finds the proposed zone change will not have any adverse impact on surrounding properties because approval of the proposal will not change the uses allowed on the subject property. 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: 1. Mistake. The Hearings Officer finds there was no mistake in the original F-1 zoning of the subject property in light of the fact, noted in the findings above, that the county zoned all federal forest land F-1. 2. Change of Circumstances. The USFS environmental assessment for Tract C and the subject property, discussed in the findings above, sets forth the changes in circumstances affecting the subject property that resulted in the subject property's loss of National Forest character and difficulties in effectively managing the property as National Forest land. In this Hearings Belveron ZC-08-4 Page 13 of 19 Officer's Pine Forest decision, I made the following relevant findings: "Many of the rural residential subdivisions located south of Sunriver and west of Highway 97 were already platted at the time the county adopted its first zoning ordinance and map. However, there is no question these subdivisions have achieved their current density since the early 1970's. The same is true of the Sunriver community which was developed in the late 1960's but reached buildout only in the last decade. In addition, the Crosswater and Caldera Springs destination resorts and the Vandevert Ranch development were approved long after the subject property was zoned F-1. The result of all of these developments clearly can be seen in the aerial photograph that forms the basis of the diagram included in the record as Appendix 1 to the applicant's burden of proof and as Hearing Exhibit B — i.e., extensive residential and resort development, much of it at urban and suburban density, and located on three sides of the subject property. This surrounding development is largely what prompted the USFS to identify the subject property for transfer to private ownership. The `Tract C Land Conveyance' decision included in the record sets forth the following reasons for the transfer of the subject property and Parcels B and C: a. It is difficult and not cost effective to manage these lands as part of the National Forest System given their rural residential setting, configuration, size, and existing or increasing encroachments and unauthorized uses. b. The properties have lost their character and are no longer representative of a National Forest, even though people in the local neighborhood may feel that they still have local character as wooded or forested areas. c. The trees on the property provide pleasant aesthetics to the local residents, but the area can no longer be effectively managed for broader National Forest goals. d. The properties have become heavily influenced by their rural residential setting. Unauthorized uses, including dumping of garbage, creation of new roads and trails, and illegal firewood and tree removal, have all contributed to the loss of National Forest character. It may not be apparent to the casual visitor that these are National Forest lands. As discussed extensively in the findings above, [In ZC-06-3], the Hearings Officer has found these factors render the subject property `impacted' forest land suitable for F-2 zoning. I find these same factors constitute changes in circumstance sufficient to justify the proposed zone change from F-1 to F-2, therefore satisfying this approval criterion." The board adopted these findings in its decision approving the Pine Forest zone change. The Belveron ZC-08-4 Page 14 of 19 aerial photograph referenced above is included in the record as Exhibit N to the applicant's burden of proof. As discussed in the findings above, the subject property is part of the "Tract C Land Conveyance" and has many of the same characteristics as the Pine Forest property. In addition, the subject property abuts three rural residential subdivisions that have been developing since the 1970s and likely will continue to develop because there are some vacant lots in these subdivisions. For these reasons, the Hearings Officer finds the cumulative impacts from the nearby development warrant approval of the proposed zone change from F-1 to F-2. For the foregoing reasons, the Hearings Officer finds the applicant's proposal satisfies all applicable zone change approval criteria. TRANSPORTATION PLANNING RULE B. Oregon Administrative Rules (OAR), Chapter 660, Division 12, Transportation Planning 1. OAR 660-012-0060, Plan and Land Use Regulation Amendments (1) Belveron ZC-08-4 Page 15 of 19 Where an amendment to a functional plan, an acknowledged comprehensive plan, or a land use regulations 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 of map errors on 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 standards 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. FINDINGS: The Hearings Officer finds the Transportation Planning Rule (TPR) applies to the applicant's proposal because it is for an amendment to the county's zoning map. In its decision approving the Pine Forest zone change, the board found the TPR requires the county to consider the reasonable worst case development scenario involving an approved use under the proposed zoning in a zone change application. The board concluded that destination resort development was not a "reasonable" worst case scenario for the Pine Forest property for the following reasons: "[BJecause the zone change from F-1 to F-2 does not itself allow destination resort development to occur, and because a future mapping amendment and intensive conditional use review (including traffic analysis pursuant to Section 18.113.070(G)) would be required before destination resort development could occur, destination resort development should not be considered in applying OAR 660-012-0060. ( Emphasis Added.) * * * The subject property must be mapped with the destination resort overlay before destination resort development could be proposed in the future. Mapping will require a further amendment to the County comprehensive plan and/or land use regulations. Even if the County amends the zoning maps to include the property within the destination resort overlay, a resort will still not be an `allowed' or `outright permitted' use on the property. Rather, the resort would be a conditional use on F-2 land. " The Hearings Officer adheres to these findings here. Attached to the applicant's burden of proof as Exhibit P is a letter dated August 13, 2008 from Scott Ferguson, P.E. (included in the record as Exhibit P to the applicant's burden of proof), providing an analysis of the proposed zone change under the TPR and concluding that the proposal would not have a significant impact under the TPR. In his September 16, 2008 comments on the applicant's proposal, the county's transportation planner Peter Russell stated that no formal traffic study was required in this case because the proposed zone change would not affect the traffic generation rate for the subject property, and because the property could not be developed with a destination resort because it is not mapped for such use. For the foregoing reasons, the Hearings Officer finds the applicant's proposal is consistent with the TPR. Belveron ZC-08-4 Page 16 of 19 STATEWIDE LAND USE PLANNING GOALS 2. OAR 660, Division 15, State -Wide Planning Goals and Guidelines a. OAR 660-015-000, State -Wide Planning Goals and Guidelines No. 1 Through No. 14 b. OAR 660-015-005, State -Wide Planning Goal and Guideline No. 15 c. OAR 660-015-010, State -Wide Planning Goals and Guidelines No. 16 Through 19 FINDINGS: In this Hearings Officer's Pine Forest decision I made the following relevant findings: "In previous zone change decisions the Hearings Officer has not addressed the statewide goals and guidelines because they are implemented through the county's acknowledged comprehensive plan, and the proposed zone change must be found to be consistent with the plan. [Footnote omitted.] Therefore, I find the goals and guidelines do not apply to this zone change application." The board adopted these findings in its decision approving the Pine Forest zone change, and therefore I adhere to them in this decision. Nevertheless, because the applicant has addressed the goals I include the following findings concerning goal compliance: Goal 1, Citizen Involvement. The Hearings Officer finds the applicant's proposed zone change satisfies this goal because the Planning Division follows the procedures in Chapter 22 of the Deschutes County Code in reviewing a request for a zone change. These procedures include individually mailed notices to affected property owners, posting of the subject property with a notice of proposed land use action sign, and published notice of the public hearing in the "Bend Bulletin" newspaper. In addition, at least two public hearings will be held before the proposed zone change is approved, one before the Hearings Officer and one before the board. Goal 2, Land Use Planning. The Hearings Officer finds the applicant's proposed zone change satisfies this goal because the proposed zone change does not require a change in the plan designation. In addition, the proposed zone change is being considered by the county using a public review process that includes a public hearing, notice and opportunity for public review. Goal 3. Agricultural Lands. The Hearings Officer finds this goal is not relevant because the subject property is not designated Agriculture on the comprehensive plan. Goal 4. Forest Lands. As discussed above, the subject property is designated on the comprehensive plan map. As discussed in the findings above, the proposed zone change from F- 1 to F-2 will not change that designation, and therefore the Hearings Officer finds the applicant's proposal satisfies this goal. Belveron ZC-08-4 Page 17 of 19 Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. Although the subject property is designated resource land because it is designated and zoned forest land, the Hearings Officer finds this goal is not relevant to the proposed zone change because the proposed zone change will not change the uses permitted under the current zoning designation and will not alter its resource qualities and characteristics.2 Goal 6, Air, Water and Land Resources Quality. The Hearings Officer finds the proposed zone change from F-1 to F-2 satisfies this goal because it would not affect the air, water or land resources on the subject property. As discussed in the findings above, the proposed zone change would not affect the plan designation of the subject property, and the uses permitted on the subject property after approval of this zone change would be identical to uses allowed in the F-1 Zone with the exception of the possibility of mapping and development of a destination resort. Goal 7, Areas Subject to Natural Disasters and Hazards. The Hearings Officer finds this goal is not relevant to the proposed zone change because the subject property is not located in a known natural disaster or hazard area. Goal 8, Recreational Needs. The subject property is not mapped for destination resort development or other recreational uses. As discussed in the findings above, the proposed zone change would make possible future mapping of the property for destination resort development. For these reasons, the Hearings Officer finds the applicant's proposal satisfies this goal. Goal 9, Economy of the State. The comprehensive plan recognizes that timber is an economic resource in Deschutes County. Inasmuch as the proposed zone change would not remove the subject property from forest land designation, the Hearings Officer finds it is consistent with this goal. Goal 10, Housing. The Hearings Officer finds this goal is not relevant because the subject property is not zoned or planned for residential uses. Goal 11, Public Facilities and Services. As discussed in detail in the findings above, the Hearings Officer has found the subject property is and in the future can be served by adequate public facilities and services. Therefore, I find the proposed zone change is consistent with this goal. Goal 12, Transportation. Compliance with this goal is addressed above under the discussion of the TPR. As set forth in the findings above, the Hearings Officer has found the applicant's proposal is consistent with the TPR, and therefore I find it also is consistent with this goal. 2 The record includes e-mail correspondence between Doug White of DLCD and the applicant's attorney Liz Fancher concerning the relevance of Goal 5 to this application. From this correspondence, it appears Mr. White agreed with Ms. Fancher that Goal 5 and its implementing administrative rules would not apply unless and until the subject property is considered for mapping for and development of a destination resort. See, Johnson v. Jefferson County, Or App (A138263, July 9, 2008). Belveron ZC-08-4 Page 18 of 19 Goal 13, Energy Conservation. The Hearings Officer finds this goal is not relevant to the applicant's proposal because the proposed zone change would not change the subject property's forest designation or the uses permitted on the subject property with the exception of the potential to be mapped for destination resort development. Goal 14, Urbanization. The Hearings Officer finds this goal is not applicable to the applicant's proposal because the proposed zone change does not affect property within an urban growth boundary and does not promote the urbanization of rural land. Goals 15 through 19. The Hearings Officer finds these goals are not applicable to the applicant's proposal because they address river, ocean, and estuarine resources that are not located in Deschutes County or on the subject property. IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer APPROVES the applicant's proposed zone change from F-1 to F-2 for the subject property, SUBJECT TO THE FOLLOWING CONDITION OF APPROVAL: 1. Prior to the public hearing before the Deschutes County Board of Commissioners on the proposed zone change, the applicant/owner shall submit to the Planning Division a metes -and -bounds legal description of the property subject to the zone change. Dated this day of November, 2008. Mailed this day of November, 2008. Karen H. Green, Hearings Officer Under Section 22.28.030(A) of the county's land use procedures ordinance, because this decision involves a proposed zone change this application also must be approved by the Board of County Commissioners. Belveron ZC-08-4 Page 19 of 19 fv, Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 9770.-1925 (541)388-6575 FAX(541)38`i-1764 http://www.co.deschutes.or.i s/cdd/ Staff Report The Deschutes County Hearings Officer will hold a Public Hearing on October 14, 2008 at 6:30 P.M. in the Barnes and Sawyer rooms of the Deschutes Services Building located at 1300 NW Wall Street in Bend, to consider the following request: FILE NUMBER: APPLICANT/PROPERTY OWNER: APPLICANT'S ATTORNEY: SUBJECT PROPERTY: REQUEST: STAFF REVIEWER: I. A. ZC-08-4 Belveron Real Estate Partners, LLC Attn.: Paul Odland 268 Bush Street, #3534 San Francisco, CA 94104 Liz Fancher 644 NW Broadway Street Bend, Oregon 97701 Tax Lot 104, Assessor's Map 20-11-00 The applicant requests approval of a zone change from F-1 to F-2 for an approximately 179.49 -acre property. Will Groves, Senior Planner APPLICABLE STANDARDS AND CRITERIA: Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.136, Amendments * Section 18.136.010, Amendments * Section 18.136.020, Rezoning Standards B. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan ZC-07-5 1. Chapter 23.92, Forest Lands * Section 23.92.020, Goal * Section 23.92.030, Policies Quality Services Performed with Pride Page 1 of 17 C. Oregon Administrative Rules (OAR) Chapter 660 1. OAR 660-015-0000, Statewide Planning Goals 2. OAR 660-012-0060, Plan and Land Use Regulation Amendments II. FINDINGS OF FACT: A. Location: The subject property is approximately 18 miles southwest of Bend and about 5 miles southwest of Sunriver. It abuts Vandevert Road to the north, Blue Eagle Road to the west, a strip of land owned by the Burlington Northern -Santa Fe Railroad to the east and USFS-managed federal land to the south. This property is Tax Lot 104 on Assessor's Map 20-11-00. B. Zoning and Plan Designation: The subject property is zoned F-1, Forest Use and designated Forest on the Deschutes County Comprehensive Plan map. The applicant is seeking approval of F-2, Forest Use zoning. The comprehensive plan map designation will remain Forest. C. Site Description: The property is approximately 179.49 acres in size. A detailed site description of the property is contained in the USFS Invitation for Bids document (the "IBF") and the Tract C Land Conveyance Environmental Assessment (the "EA"). Copies of these documents were submitted as Exhibits C and D of the burden of proof and are incorporated herein by reference. The subject property is "Parcel C," a part of Tract C. The subject property is located south of Vandevert Road. The subject property, like the rest of Tract C, is isolated from other National Forest Lands by the railroad tracks, the highway, destination resort developments and rural residential properties. The EA at page 7 explains the following about Tract C (also referred to as the Vandevert Parcel): "The Vandevert parcel is considered as having lost its National Forest character and is difficult to effectively manage for National Forest purposes. The railroad tracks and highway effectively isolate this parcel from the large consolidated tract of National Forest land that lies to the east. Its proximity to housing developments, railroad tracks, Highway 97, major county roads and private lands limit the effectiveness of vegetation, wildlife, recreation and other Forest management programs. Evidence of urban civilization, such as powerlines, railroad, unauthorized roads and trails, and piles of household garbage are indications that this land has lost its National Forest character. Tracts such as this become increasingly difficult to manage, especially as increased unauthorized and inappropriate uses by people occur." D. Surrounding Zoning and Land Uses: North: "Parcel A" of the Tract C Land Conveyance property lies north of the subject property across Vandevert Road. The County recently changed the zoning classification of this property from F-1 to F-2 under file number ZC-06-3 and implemented by the Deschutes County Board of Commissioners under Ordinance number 2007-022 on September 5, 2007. This property adjoins the Caldera Springs destination resort. Further north of Parcel A is the Sunriver Business Park development. The business park includes about 120 individually -owned commercial uses as described in ZC-06-3. The urban unincorporated ZC-08-4 Page 2 of 17 community of Sunriver lies north of the Business Park. That community contains commercial shopping centers, a resort, golf courses, convention centers, single-family homes and vacation rental properties. South: USFS land abuts the subject property to the south. The portion of USFS land that abuts the subject property is located in a landscape management zone for Highway 97. East: The Burlington Northern -Sante Fe railroad tracks abut the eastern property line of the subject property and separates the subject property from other lands to the east. East of the tracks is U.S. Highway 97 and a slender strip of federal land that is zoned F- 1. The land east of U.S. Highway 97 is zoned F-1 and includes federal forest land and a 24 -acre lot that is owned by Gas Transmission Northwest Corporation. The 24 -acre lot is developed with a compressor building, control building and garage for use related to the Pacific Gas Transmission Company natural gas transmission line that is installed on and over federal land in Central Oregon and beyond. West: The subject property abuts Blue Eagle Road and the Vandevert Acres, Vandevert Acres South and Pine River Estates subdivisions. The subdivisions adjoining the subject property are developed with rural residential homes. The three subdivisions abut the majority of the property's western property line. The subdivisions are located in a rural residential exception area that is shown on the Deschutes County Comprehensive Plan Map. Pine River Estates contains 32 lots. Each lot is a little more than an acre in size. The Vandevert Acres subdivision adjoins the southern boundary of Pine River Estates. Vandevert Acres contains 30 rural residential lots that range from about 1 acre to about 2.14 acres in size. The plat for the subdivision created 21 residential lots. Eight additional residential lots were created by County approval of eight partitions. One additional lot was also created from Lot 1, Block 4. Vandevert Acres South abuts the southernmost portion of the subject property's western property line. This subdivision contains common areas and 18 rural residential lots. They range in size from about 2 to 2.21 acres. The Crosswater destination resort is a short distance to the west and northwest of the subject property. E. Procedural History: The applicant submitted the subject zone change application on August 21, 2008, and the county accepted the application as complete on September 21, 2008. F. Proposal: The applicant requests approval of a zone change from F-1 to F-2 for the subject property. G. Public/Private Agency Comments: The Planning Division mailed notice of the applicant's proposal to a number of public and private agencies and received responses from: the Deschutes County Forester, DLCD, and Senior Transportation Planner. These comments are included in the record and are incorporated herein by reference. The following agencies did not respond to the notice: La Pine Fire Department, Deschutes County Road Department, ODFW, Watermaster-District 11, ODOT, USFS, Sunriver Owners Association, Sunriver Resort, USFWS, and Department of Forestry. H. 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 750 feet of the subject property. In addition, notice of the public hearing ZC-08-4 Page 3 of 17 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 writing of this Staff Report, the county had received no letters from the public in response to these notices. III. CONCLUSIONS OF LAW: A. Historical Background: FINDINGS: The record indicates that in 2000 the U.S. Congress enacted the 2000 Bend Pine Nursery Land Conveyance Act (Public Law 106-526) which authorized the Deschutes National Forest to exchange or transfer into private ownership lands identified as no longer suitable for USFS management. The record indicates the Act identified 7 parcels for potential transfer to private ownership, including a 950 -acre parcel of federal forest land called the "Tract C Land Conveyance." That tract included three parcels: Parcel A, Parcel B and Parcel C, the subject property. The Deschutes National Forest Bend -Fort Rock Ranger District conducted an environmental assessment of Tract C. Based on that assessment, USFS Regional Forester Linda Goodman issued a "Decision Notice and Finding of No Significant Impact" (hereafter "decision") authorizing Tract C to be transferred from the USFS into private ownership. As discussed above, the applicant purchased Parcel C from the USFS. Copies of the environmental assessment and decision for Tract C are included in this record as attachments to the applicant's burden of proof. The decision states in pertinent part: "The primary purpose for conveying lands out of federal ownership is to dispose of these isolated tracts of National Forest System Lands that have lost their National Forest character and are difficult to manage. Sale of the lands would have a second purpose, which is to use the proceeds to help fund new Forest Service administrative facilities, as provided in the 2000 Bend Pine Nursery Land Conveyance Act (Public Law 106-526). Exchange of the lands would have a third purpose, which is to acquire private lands that would contribute significant resource values to the National Forest System, or otherwise be in the public interest to acquire." The decision identifies the alternatives to conveyance of Tract C considered by Ms. Goodman, and includes the following findings in support of her decision that Tract C should be transferred into private ownership: `1 have concluded that the conveyance of these federal lands is in the public interest, and that conveyance of the parcels outweighs benefits of keeping them in federal ownership. The parcels are isolated National Forest properties, nearly surrounded by private land. It is difficult and not cost effective to manage these lands as part of the National Forest System given their rural residential setting, configuration, size, and existing or increasing encroachments and unauthorized uses. These parcels are identified as being available for disposal under the Bend Pine Nursery Land Conveyance Act signed into law November 22, 2000. This decision implements the Act, allowing lands to be used for purposes potentially better suited to the location. The properties have lost their character and are no longer representative of a National Forest, even though people in the local neighborhood may feel that they still have local character as wooded or forested areas. The trees provide pleasant aesthetics to the local residents, but the area can no longer be ZC-08-4 Page 4 of 17 effectively managed for broader National Forest goals. The properties have become heavily influenced by their rural residential setting. Unauthorized uses, including dumping of garbage, creation of new roads and trails, and illegal firewood and tree removal, have all contributed to the loss of National Forest character. It may not be apparent to the casual visitor that these are National Forest lands. Future land uses will be under the jurisdiction of county and state regulations and zoning requirements, and I am confident that future approved uses would be balanced and responsive to local community needs, protect local resources and scenic values, and incorporate site specific concerns of nearby residents and the local public. Social issues such as school needs, transportation, and water and sewer services, would be considered and addressed in the land use application process for any developments proposed in the future. l believe that under private ownership, the properties would be utilized in a way that is more responsive to the needs and economy of the local area." C. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.136, Amendments a. Section 18.136.010, Amendments DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for text or legislative map changes shall be as set forth in DCC 22.12. A request by a property owner for a quasi-judicial map amendment shall be accomplished by filing an application on forms provided by the Planning Department and shall be subject to applicable procedures of DCC Title 22. FINDINGS: The applicant has requested approval of a zone change from F-1 to F-2 for the subject property. The record includes a zone change application filed by the applicant/property owner on a county form and accompanied by the required application fee. This zone change application is being processed pursuant to Title 22 of the Deschutes County Code. b. 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: FINDINGS: This provision does not set forth an approval criterion. In ZC-06-3 the Board found that "this sentence is introductory in nature and is modified by the second sentence which identifies the applicable zone change approval criteria as those 'factors to be demonstrated' by the applicant in Paragraphs (A) through (D) of this section. In other words, the applicant must demonstrate the proposed zone change will best serve the public interest by demonstrating compliance with these four factors." A. That the change conforms with the Comprehensive Plan, and the change is consistent with the plan's introductory statement ZC-08-4 Page 5 of 17 and goals. FINDINGS: This factor contains two parts: (1) the zone change conforms to the Comprehensive Plan and (2) it is consistent with the plan's introductory statement and the plan's goals. (1) Conformance to the Comprehensive Plan: The Comprehensive Plan designation of this property is Forest. Property designated for forest uses on the Comprehensive Plan map can be zoned either F-1 or F-2. Therefore, the requested F-2 zoning classification for the subject property conforms to the existing comprehensive plan designation. This criterion is satisfied. (2) Consistency with the plan's introductory statement and goals: The Board in ZC-06-3 found that: "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 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 ZC-08-4 Page 6 of 17 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. Staff agrees with the above findings that the above -referenced introductory statements and goals are not approval criteria in this zone change application. However, plan provisions may require consideration by the decision maker even if they are not applicable approval criteria. Save Our Skyline v. City of Bend, 48 Or LUBA 192, 209 (2004). In ZC-06-3 the Board made the following relevant findings: "The Deschutes County Planning Commission and Board of County Commissioners (board) undertook a county -wide legislative process [1992 or earlier] to identify and zone all public forest land F-1, and to zone all private forest lands as either F-1 or F-2 based on whether such lands were "unimpacted" or "impacted" considering certain characteristics set forth in the plan policies. The findings in support of Ordinance 92-024 and Ordinance 92-026, which amended the zoning ordinance and map to conform with the new forest land plan policies, state that in rezoning all private forest lands the board did not give additional consideration to soil ZC-08-4 Page 7 of 17 capability, and conducted site-specific evaluations of 26 individual forest tracts identified by staff and/or the property owners as requiring individual consideration because they had characteristics of both "unimpacted" and "impacted" forest land. Of these 26 tracts, 14 were zoned F-1 and 12 were zoned F-2." Copies of Ordinance Nos. 92-024 and 92-026 were submitted as Exhibits J and Exhibit K. DCC Section 23.92.030 codifies the forest land policies adopted in 1992. In ZC-06-3, the Board found that the policies in DCC Section 23.92.030 are to be taken into "consideration" in a quasi- judicial zone change, but are not mandatory approval criteria such that each policy must be met before a zone change may be approved. (1) DCC 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. FINDINGS: The goal of the F-2 zone is to conserve forest lands for forest uses, which is consistent with this plan goal. Thus, F-2 zoning is consistent with this goal. (2) DCC 23.92.030. Policies. 1. Deschutes County shall designate forest lands on the comprehensive plan map consistent with Goal 4 and OAR 660, Division 6. 2. Deschutes County shall zone forest lands for uses allowed pursuant to OAR 660, Division 6. In addition to forest practices and operations and uses auxiliary to forest practices, as set forth in ORS 527.722, Deschutes County shall allow in the forest environment the following general types of uses: * * * 3. In order to conserve and maintain the unimpacted forest land base for forest use the County shall identify and zone as F-1 those lands which have the following characteristics: * * * [characteristics listed in FINDINGS, below] 4. 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: * * * [characteristics listed in FINDINGS, below] FINDINGS: In ZC-06-3, the Board found that Policies 1 through 4 direct the County to make forest land zone change decisions based on a consideration of the "unimpacted" and "impacted" forest land characteristics listed in Policies 3 and 4. The Board found that all factors are to be considered and weighed when deciding whether to apply F-1 or F-2 zoning. The following findings address each policy together, as follows: DCC 23.92.030 Policy 3 Policy 4 a. Consist predominantly ownerships not developed residences or non -forest uses. of by a. Consist predominantly of ownerships developed for residential or other non -forest uses, ZC-08-4 Page 8 of 17 FINDINGS: The subject property is undeveloped but is located in an area that is dominated by rural residential and resort development. The property is not suited to commercial forest use for the reasons explained by the USFS in the EA. Additionally, this part of each policy refers to "ownerships." The area adjacent to and near the subject property is developed with residences in a rural residential exception area. This development, roadways and the railroad separate most of the subject property from undeveloped forest lands. This characteristic weighs in favor of F-2 zoning. b. Consist predominantly of contiguous ownerships of 160 acres or larger in size. b. Consist predominantly of ownerships less than 160 acres in size. FINDINGS: The subject property consists of approximately 179.49 acres of land in contiguous ownership. Like the prior consideration, this policy is written based on "ownerships." The properties that adjoin the western boundary of the subject property are all less than 160 acres in size and, for that reason, have been included in a rural residential exceptions area. Land to the north is zoned F-2. A part of that land is developed with small lots as a destination resort. The subject property is separated from forest land to the east due to the presence of the railroad on its east boundary. Only a very small part of the subject property, its narrow south boundary, adjoins forest land. This characteristic weighs in favor of F-2 zoning. c. Consist predominantly of ownerships contiguous to other lands utilized for commercial forest or commercial farm uses. c. Consist of ownerships generally contiguous to tracts containing less than 160 acres and residences, or adjacent to acknowledged exception areas. FINDINGS: The uses surrounding the subject property are discussed in detail above. The property abuts an acknowledged rural residential exceptions area to the west. This area contains three rural residential subdivisions. A small portion of the property's southern property line abuts federal land owned by the United States and managed by the USFS. The subject property abuts Vandevert Road to the north and the railroad to the east. Thus, the majority of the property abuts either rural residential uses in an acknowledged exceptions area, roads used to access rural residential properties or the railroad rather than land contiguous to lands utilized for commercial farm or forest uses. This characteristic weighs in favor of F-2 zoning. d. Accessed by arterial roads or roads intended primarily for forest management. d. Provided with a level of public facilities and services, including roads, intended primarily for direct services to rural residences. FINDINGS: The subject property is not accessed by arterial roads or roads used primarily for forest management. The subject property is accessed from roads intended primarily for rural residential subdivisions, forest recreational uses, resort developments and urban uses (Sunriver ZC-08-4 Page 9 of 17 UUC) — Vandevert Road and Blue Eagle Road. The northern section of Blue Eagle Road abutting the subject property and connecting to Vandevert Road is a public road. Blue Eagle Road becomes a private roadway once it enters Vandevert Acres. Blue Eagle Road is used primarily for access to the rural residences in the Vandevert Acres, Vandevert Acres South and Pine River Estates subdivisions. Vandevert Road is a rural collector road. In ZC-06-3, the Board found that Vandevert Road provides direct service to surrounding rural residential areas such as Caldera Springs, Crosswater, Sunriver, Vandevert Ranch and the subdivisions abutting the subject property. Thus, access to the subject property is via roads characteristic of F-2 zoned land. The level of public facilities and services other than roads on surrounding properties is also characteristic of F-2 zoned land because of the abutting rural residential subdivisions. The subject property contains a buried telephone line along the south side of Vandevert Road and one along Blue Eagle Road. There is an overhead powerline running north -south along the subject property. This characteristic favors F-2 zoning. e. Primarily under forest management. FINDINGS: This is a characteristic of F-1 zoned lands only. As discussed In ZC-06-3, if the property is not presently primarily under forest management, this weighs in favor of F-2 rather than F-1 zoning. In ZC-06-3, the Board determined that forest management "means the property is managed principally for one or more of the forest operations, practices and uses described in Title 18." These definitions are set forth on page 14 of the Board decision in ZC-06-3. The IFB and EA demonstrate that the subject property was identified for transfer into private ownership because it is no longer suitable for forest management. The Invitation for Bids document states "[c]onveyance out of federal ownership would consolidate land ownership patterns in the area and eliminate approximately 945 acres of National Forest lands that are separated and isolated from larger blocks of national Forest lands and difficult to manage for National Forest purposes." As discussed above, the EA concludes that the property is not suitable for forest management. This fact is significant as it was used by the USFS in making its determination to sell the subject property out of federal ownership in order to acquire funds that could be used to acquire "lands that could contribute significant resource values to the National Forest System, or otherwise be in the public interest to acquire." All federal forest lands in the County were zoned F-1 in 1992 without an analysis of the characteristics listed above. This is supported by George Reed's statement made during a Planning Commission meeting on February 26, 1992 that "all federally owned land has been zoned F-1." A copy of the relevant pages of the Minutes of the Deschutes County Planning Commission Meeting of February 26, 1992 was submitted as Exhibit L. As the EA explains, the subject property is not suitable for the activities described in DCC Section 18.04.030 and has therefore been conveyed out of federal ownership into ZC-08-4 Page 10 of 17 private ownership. The owners of the subject property are not managing it for forest production. It would not be prudent for the owner to incur the cost of forest management for this property given the potential conflicts that exist between nearby residential properties and forest practices. This characteristic weighs in favor of F-2 zoning. In ZC-06-3, the Board found that all of the characteristics of either unimpacted (F-1 zoned lands) or impacted (F-2 zoned lands) forest lands do not need to be satisfied in order to re -zone property from F-1 to F-2. As the subject property is no longer under public ownership because it was not suitable for commercial forestry and because the characteristics described in Policies 3 and 4 weigh in favor of F-2 zoning, rezoning the property F-2 is appropriate and consistent with relevant comprehensive plan policies. 5. Except as identified in this plan non -forest uses shall be discouraged in existing forested areas. FINDINGS: The applicant is requesting a zone change from F-1 to F-2 on the zoning map. This zone change will allow the applicant to develop the property with uses allowed in the F-2 zone under the zoning ordinance in effect when the applicant proposes development on the subject property. The County's zoning ordinance is currently acknowledged and implements the comprehensive plan including this plan policy. Thus, this application is consistent with this plan policy. DCC 18.136.020(B). That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone change classification. FINDINGS: The purpose statements of the F-1 and F-2 zones are the same: "The purpose of the Forest Use Zone is to conserve forest lands." Thus, whether the property is zoned F-1 or F- 2, the purpose of the zoning classification is to conserve forest lands and the change in classification is consistent with the purpose and intent of the proposed zone. The F-2 zoning district regulations are intended to achieve the purpose of the zone — to conserve forest lands. Any use allowed by the F-2 zoning regulations has been determined by the County, and the State of Oregon by acknowledgment of the F-2 zone and its uses, to be consistent with the purpose and intent of the F-2 zone. Additionally, for this property, the uses allowed in the F-1 and F-2 zones are identical. The only difference between the zones is that some F-2 zoned properties may be able to obtain conditional use approval for a destination resort development if they are mapped as eligible for the use and are large enough to qualify for the use. The subject property is not mapped as being eligible for destination resort development. In addition, in ZC-06-3, the Board found that it is not appropriate to consider "potential destination resort development under this approval criterion because such development would require both a lengthy and complex legislative process to map the subject property for such development, and an equally complex, multi -step quasi-judicial process to obtain conceptual and final destination resort master plan approval." In ZC-06-3 the Board analyzed Mason v. City of Corvallis, 49 Or LUBA 199 (2005) and concluded that in Mason, "LUBA held that in reviewing a proposed zone change under the city's land use regulations, the city did not err in declining to assume the parcel would be developed with the most intensive uses in part because the ZC-08-4 Page 11 of 17 applicant did not propose such uses, but also in part because of the use limitations and review standards applicable to development of uses in that zone." Finally, the Board found that because, "the county's zoning ordinance has been acknowledged as consistent with the Goal 4 and its administrative rules, including authorizing destination resorts and other non -forest uses as conditional uses in the F-2 Zone," destination resort use is not inconsistent with the goal of the F-2 zone." Thus, the proposed zone change from F-1 to F-2 will not have any effect on the conservation of forest lands. C. That changing the zoning will presently serve the public health, safety and welfare considering the following factors: FINDINGS: In ZC-06-3, the Board found "this sentence is introductory in nature and is modified by the phrase `considering the following factors'- i.e., the specific approval criteria in Paragraphs (1) and (2) of this section. In other words, the applicant must demonstrate the proposed zone change will best serve the public interest by demonstrating compliance with these two factors." 1. The availability and efficiency of providing necessary public services and facilities. FINDINGS: This criterion requires consideration of necessary public services and facilities to develop the property as would be allowed under the proposed zoning classification. Those public services and facilities required to develop the property are dependent upon which uses are allowed on the property. The uses allowed on the subject property will not change as a result of approval of this zone change. For this property, the uses allowed in the F-1 and F-2 zone are identical. As a result, approval of the requested zone change will not impact the availability and efficiency of providing necessary public services and facilities to the subject property. This criterion is also addressed above in response to DCC 23.92.030 - .040(d). As discussed above, the subject property is provided with a level of public services and facilities characteristic of impacted F-2 lands that require a low level of public services and facilities. 2. The impacts on the surrounding land use will be consistent with the specific goals and policies contained within the Comprehensive Plan. FINDINGS: The relevant plan goals and policies are addressed above. The County has determined compliance with this criterion in other zone change applications by looking at whether the zone change results in increased adverse impacts to adjacent properties. This zone change does not have any adverse impact on surrounding properties as the zone change approval will not change the uses allowed on the subject property. 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: Page 7 of the EA describes the change in circumstances on the subject property ZC-08-4 Page 12 of 17 that has resulted in a Toss of National Forest character of the property and difficulty effectively managing the property as National Forest land. Also, In ZC-06-3, the Board found that the reasons for the subject property's change in ownership from federal to private hands show a change in circumstances that justifies approval of a zone change from F-1 to F-2. In ZC-06-3, the Board found: "Many of the rural residential subdivisions located south of Sunriver and west of Highway 97 were already platted at the time the county adopted its first zoning ordinance and map. However, there is no question these subdivisions have achieved their current density since the early 1970's. The same is true of the Sunriver community which was developed in the late 1960's but reached buildout only in the last decade. In addition, the Crosswater and Caldera Springs destination resorts and the Vandevert Ranch development were approved long after the subject property was zoned F-1. The result of all of these developments clearly can be seen in the aerial photograph that forms the basis of the diagram included in the record as Appendix 1 to the applicant's burden of proof and as Hearing Exhibit B — i.e., extensive residential and resort development, much of it at urban and suburban density, and located on three sides of the subject property. This surrounding development is largely what prompted the USFS to identify the subject property for transfer to private ownership. The "Tract C Land Conveyance" decision included in the record sets forth the following reasons for the transfer of the subject property and Parcels B and C: a. It is difficult and not cost effective to manage these lands as part of the National Forest System given their rural residential setting, configuration, size, and existing or increasing encroachments and unauthorized uses. b. The properties have lost their character and are no longer representative of a National Forest, even though people in the local neighborhood may feel that they still have local character as wooded or forested areas. c. The trees on the property provide pleasant aesthetics to the local residents, but the area can no longer be effectively managed for broader National Forest goals. d. The properties have become heavily influenced by their rural residential setting. Unauthorized uses, including dumping of garbage, creation of new roads and trails, and illegal firewood and tree removal, have all contributed to the loss of National Forest character. It may not be apparent to the casual visitor that these are National Forest lands. As discussed extensively in the findings above, [In ZC-06-31, the Hearings Officer has found these factors render the subject property "impacted" forest land suitable for F-2 zoning. I find these same factors constitute ZC-08-4 Page 13 of 17 changes in circumstance sufficient to justify the proposed zone change from F-1 to F-2, therefore satisfying this approval criterion." The aerial photograph referenced above was submitted as Exhibit N. The subject property in this application is part of the "Tract C Land Conveyance" properties and has many of the same characteristics as the property considered under ZC-06-3. In addition, the subject property in this application abuts three rural residential subdivisions that have been developing since the 1970s and will likely continue to develop, as there are still some vacant lots in these subdivisions. The cumulative impacts from the nearby development warrant approval of this request. B. Oregon Administrative Rules (OAR), Chapter 660 1.Division 12, Transportation Planning 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 regulations 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 of map errors on 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 standards 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. FINDINGS: As discussed in the Deschutes County Board of Commissioner's (the Board's") TPR analysis in its findings adopting the Board decision in ZC-06-3, the TPR requires the County to consider the reasonable worst case development scenario under the proposed zoning in a zone change application. In this case, the Board concluded that destination resort development is not a "reasonable" worst case scenario for the following reasons: [B]ecause the zone change from F-1 to F-2 does not itself allow destination resort development to occur, and because a future mapping amendment and ZC-08-4 Page 14 of 17 intensive conditional use review (including traffic analysis pursuant to Section 18.113.070(G)) would be required before destination resort development could occur, destination resort development should not be considered in applying OAR 660-012-0060. Emphasis Added. *** The subject property must be mapped with the destination resort overlay before destination resort development could be proposed in the future. Mapping will require a further amendment to the County comprehensive plan and/or land use regulations. Even if the County amends the zoning maps to include the property within the destination resort overlay, a resort will still not be an "allowed" or "outright permitted" use on the property. Rather, the resort would be a conditional use on F-2 land. A traffic letter from Scott Ferguson, P.E., was submitted as Exhibit P. The letter provides an analysis of the TPR and concludes that a zone change for the subject property would not have a significant impact under the TPR. The Deschutes County Transportation Planner commented that no traffic study is required in this case and that this zone change does not change the potential traffic generation rate for the subject property. 2. Division 15, State -Wide Planning Goals and Guidelines a. OAR 660-015-000, State -Wide Planning Goals and Guidelines No. 1 Through No. 14 b. OAR 660-015-005, State -Wide Planning Goal and Guideline No. 15 c. OAR 660-015-010, State -Wide Planning Goals and Guidelines No. 16 Through 19 FINDINGS: As discussed above, Staff does not believe that the Statewide Planning Goals apply to the County's review of this application. In ZC-06-3, the Board concluded that "in previous zone change decisions the Hearings Officer has not addressed the statewide goals and guidelines because they are implemented through the county's acknowledged comprehensive plan, and the proposed zone change must be found to be consistent with the plan.' Therefore, I find the goals and guidelines do not apply to this zone change application." However, the applicant has addressed relevant Statewide Planning Goals. The following findings, therefore, are provided: Compliance Statewide Planning Goals Goal 1, Citizen Involvement. The proposed zone change satisfies this goal because the Planning Division follows DCC Chapter 22 procedures in reviewing a request for a zone change. These procedures include individually mailed notices to affected property owners, posting of the 1 E.g., Hap Taylor (ZC-04-5); Yurdin (ZC-04-1). ZC-08-4 Page 15 of 17 subject property with a notice of proposed land use action sign, and published notice of the public hearing in the "Bend Bulletin" newspaper. In addition, at least two public hearings will be held before the proposed zone change is approved, one before the Hearings Officer and one before the Deschutes County Board of Commissioners (Board). Finally, there will be this staff report and a written decision provided to the public with information concerning the zone change. Goal 2, Land Use Planning. This application is consistent with the goal consistency requirements of Goal 2 as the proposed zone change does not require a change in the plan designation. Additionally, the zone change is being considered by the County using a public review process that includes a public hearing, notice and opportunity for public review. Goal 3. Agricultural Lands. This goal is not relevant to this zone change application because the property is not designated Agriculture on the County's comprehensive plan. Goal 4. Forest Lands. As discussed above, the subject property is designated Forest land on the County's comprehensive plan map. As the zone change does not change that designation, the requested zone change meets this goal. Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. This goal is not relevant to this application because the subject property is not designated as open space or inventoried with scenic, historic or natural resources other than forest land, which is protected by Goal 4. Staff notes that an email correspondence on the relevance of Goal 5 to this application between the applicant's attorney and DLCD is included in the record and incorporated herein by reference. Goal 6, Air, Water and Land Resources Quality. As this zone change does not affect the designation of the subject property as Forestland and because the uses allowed on the subject property after approval of this zone change will be identical to uses allowed in the F-1 zone, this proposal does not affect the air, water or land resource quality of the subject property. Thus, the proposed zone change is consistent with this goal. Goal 7, Areas Subject to Natural Disasters and Hazards. The subject property is not located in a known natural disaster or hazard area. Thus, this goal is not relevant to the County's review of this application. Goal 8, Recreational Needs. The subject property is not mapped for Destination Resort uses, or other recreational needs. As the proposed zone change does not reduce or eliminate any opportunities for recreational facilities on the subject property, it is consistent with this goal. Goal 9, Economy of the State. The County's comprehensive plan recognizes that timber is an economic resource in Deschutes County. Because the zone change does not remove the property from Forestland, the change does not affect the County's compliance with Goal 9. Goal 10, Housing. This goal is not relevant because the property is not zoned or planned fc r Goal 10 residential uses. Goal 11, Public Facilities and Services. As discussed in detail above, the subject property can be served by adequate public facilities and services. Therefore, the proposed zone change is consistent with this goal. ZC-08-4 Page 16 of 7 Goal 12, Transportation. Compliance with this goal is addressed above under the discussion of OAR 660-012-0060. Goal 13, Energy Conservation. This goal is not relevant to the proposal. Goal 14, Urbanization. This goal is not applicable because the applicant's proposal does not affect property within an urban growth boundary and does not promote the urbanization of rural land. Goals 15 through 19. These goals are not applicable because they address river, ocean, and estuarine resources that are not located in Deschutes County and not affected by the proposal. IV. RECOMMENDATION: Based on the foregoing Findings of Fact and Conclusions of Law, the Staff recommends approval of the applicant's proposed zone change from F-1 to F-2 for the subject property. ZC-08-4 Page 17 of 7 2.4 I — H N bl Dt dtlW 335 L W U N N W .p 1-- 1 ✓ L 0 L L L s--1 1—` F:^ an a V L IT I 7 �_ �_ _ _L ' F—::;-- I f- e 0 1. . L�.��. 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