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HomeMy WebLinkAboutHearings Officers Decision - KennelDECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: MA07- 5/TP06 -983 SUBJECT: The applicants request approval of a Tentative Plat for a 7 -Lot Subdivision in the Exclusive Farm Use — Alfalfa Zone (EF APPLICANTS/ PROPERTY OWNERS: Delmar and Dolores Kennel 61405 K -Barr Road Bend OR 97701 AGENT: STAFF CONTACT: HEARING HELD: RECORD CLOSED: DECISION ISSUED: Helen Eastwood Bryant, Lovlien & Jarvis, PC PO Box 1151 Bend OR 97709 Chris Bedsaul, Associate Planner July 17, 2007 August 14, 2007 October 16, 2007 I. APPLICABLE CRITERIA: Title 17 of the Deschutes County Code, Partitions. 17.16, Approval of Subdivision Tentative Plans and Master Development Plans 17.16.115, Traffic Impact Studies 17.36, Design Standards 17.44, Park Development 17.48, Design and Construction Specifications Title 18 of the Deschutes County Code, County Zoning. 18.16, Exclusive Farm Use (EFU) Zones 18.16.030, Conditional uses permitted — high value and nonhigh value farmland 18.16.050, Standards for dwellings in the EFU zones 18.16.055, Land divisions 18.16.060, Dimensional standards 18.16.065, Subzones 18.16.070, Yards Oregon Revised Statutes (ORS) Chapter 215 (1973 version) Deschutes County Comprehensive Plan adopted by the Deschutes County Board of Commissioners on June 17, 1970 by Resolution No. 1 signed June 17, 1970. MA07 -5 Page 1 of 30 Hearings Officer Decision Deschutes County Subdivision Ordinance No. PL -2 passed and adopted on September 9, 1970 by the Deschutes County Board of Commissioners and Deschutes County Zoning Ordinance No. PL -5 passed and adopted December 2, 1971 by the Deschutes County Board of Commissioners and effective on January 1, 1972. Deschutes County Board of County Commissioners Order No. 2005 -110 has waived non- exempt Deschutes County regulations in effect after October 21, 1974, the date the applicants acquired an interest in the subject property. The State of Oregon waived the state restrictions on lot sizes and the establishment of one dwelling on each of the resulting lots under Statewide Planning Goal No. 3, ORS 215, and OAR 660, Division 33, enacted or adopted after October 21, 1974. II. BASIC FINDINGS: A. LOCATION AND SITE DESCRIPTION: The subject property is located east of Bend, south of Highway 20, and has an assigned address of 61425 K -Barr Road. The property includes 35.15 surveyed acres and is identified on Deschutes County Assessor's map no. 18- 13-10, as tax lot 800. Approximately one -third of the site includes high -value agricultural soils. The remainder of the site includes soils of moderate agricultural value. The property is developed with a barn, machine shed, lean -to and aircraft hangar. The undeveloped portions of the property have ground cover consisting of native vegetation, grasses and juniper trees. The property contains 21.6 acres irrigation rights and is within the Central Oregon Irrigation District (COID). There is a driveway access from tax lot 800 across through an access easement to K- Barr Road, and north to Highway 20. The property is roughly reverse -L shaped. The southwestern corner of the property abuts a strip of land also owned by the applicants (tax lots 1300 and 1400) which links the property to Gribbling Road, a county road. To the south of this strip of land is Timland Lane, a private easement that provides access to several rural residential parcels. The applicant proposes a seven -lot residential subdivision. The proposed lots range in size from 5.00 to 5.18 gross acres. Access to the subdivision is proposed via a new public road that parallels Timland Lane and terminates in a cul-de -sac in the central portion of the property. Access to K -Barr Road will be prohibited. At least two acres of water rights will be allocated to each lot to promote agricultural activities. The applicants have agreed to adopt a Developer Irrigation Plan that specifies the amount of water to be allocated to each lot, and sets out monitoring standards that will track water allocation. In addition, an irrigation lateral line is located on the subject property. The applicants have agreed to maintain the lateral line in accordance with COID regulations. Domestic water will be provided by Avion Water Company. Each site will be developed with an individual subsurface sewage system. The area includes property zoned EFU -AL and rural residential properties. The land is used for pasture, small scale and large scale farming. Property to the east and south is owned by Deschutes County. B. LOT OF RECORD: The subject property is a lot of record under Title 18 of the Deschutes County Code. MA07- 5/TP06 -983 Page 2 of 30 Hearings Officer Decision Lot of Record is defined in DCC 18.030 as "A lot or parcel at least 5,000 square feet in area and at least 50 feet wide, which conformed to all zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel was created * * *." Mr. and Mrs. Kennel first acquired an ownership interest in the property through a land sale contract that was satisfied on October 21, 1974. The land sale contract partitioned 35.0 acres from a 134 -acre parcel. The land sale contract was recorded in Deschutes County Deed Records Volume 160, Page 325, dated August 23, 1968. County Survey 04271, dated July 29, 1975, established monuments for the boundary of subject property and County Assessor records identify a Warranty deed recorded for Mr. and Mrs. Kennel in Volume 177, Page 2497, dated January 25, 1989. PL -2, effective October 1, 1970, governed "the subdivision of land, for the preparation, procedures and approval of subdivision plats and improvements, and providing penalties for the violation thereof? PL -2 required that a subdivision approval be granted by Deschutes County when Mr. and Mrs. Kennel acquired the subject property on October 21, 1974. The land division that created the subject property was not a subdivision and thus was not regulated by PL -2. In 1974, the property was zoned A -1, Exclusive Agriculture, with a 5- acre minimum lot size. The property complied with the requirements of the A -1 zone. Therefore, planning staff concluded, and the hearings officer agrees, that the subject property is a legal lot of record. C. ZONING: The subject property is zoned Exclusive Farm Use - Alfalfa Subzone (EFUAL). D. PUBLIC AGENCY COMMENTS: The Planning Division mailed a Notice of Application to several public agencies. Response comments are noted in the June 26, 2007 staff report and are not reiterated here. To the extent those comments pertain to applicable approval standards, they are addressed in the findings below. E. PUBLIC COMMENTS: The Planning Division mailed Notice of Public Hearing for this application to all property owners within 750 feet of the subject property on June 1, 2007. A Notice of Public Hearing for this application was published in the Bend Bulletin on June 17, 2007. The applicant provided a signed and notarized Land Use Action Affidavit stating that the sign was posted on May 27, 2007 where it can be clearly seen from K -Barr Road. Several neighbors appeared at the July 17, 2007 hearing and provided written and oral testimony. That testimony is included in the record, and responses to issues raised in that the testimony is set out in the findings. F. REVIEW PERIOD: This application was accepted as complete on May 22, 2007. The applicant has acknowledged in a letter, dated May 16, 2007 that due to the modification and additional notification of neighbors, the 150 -day decision period for TP06983 will restart upon acceptance of this application. The 150 -day decision period ends October 19, 2007. This decision is issued on October 16, 2007, within the 150 -day decision period. G. MEASURE 37: The property owner has received approval of a waiver of land use regulations from Deschutes County, which is listed under Board of County Commissioners Order No. 2005 -110, signed by the Board on December 5, 2005 and recorded with the County Clerk, as document 2006 - 15162, on March 6, 2006. Section 2 on page 2 of this Order states the following: MA07- 5/TP06 -983 Page 3 of 30 Hearings Officer Decision "The Board hereby elects to not apply zoning and nonexempt land use regulations to the subject property described in Exhibit "B" in lieu of payment of just compensation under Ballot Measure 37. Claimant is hereby authorized to use the subject property as permitted at the time he acquired the property. Claimant may apply for a use of the subject property consistent with the zoning and regulations in effect at the time he acquired the property. That use shall be permitted if the subject property fully complies with all regulations in effect on October 21, 1974. The Community Development Director is hereby authorized to determine the effects that any other non - exempt regulations in effect on this date would have on Claimant's proposed development differently than current non - exempt regulations. However, the current procedural regulations for land division and development applications and approval, including, but not limited to setbacks, access, height, and landscaping requirements shall be applied." Additionally, the applicant received approval of a Measure 37 claim from the State of Oregon through a Final Order for Claim No. M118741, dated May 19, 2006, from the Director of the Department of Land Conservation and Development (DLCD). The DLCD Order cites that the "State would not apply laws to the subject property for the partition of the 35 -acre property into 5 -acre parcels. The state's regulations enacted or adopted after October 21, 1974 for the subject property will not apply ". Staff is not aware of any other county land use regulations that would be applicable to the applicant's property prior to their purchase of the subject property on October 21, 1974. III. FINDINGS OF FACT AND CONCLUSIONS OF LAW: A. APPLICABLE REGULATIONS UNDER MEASURE 37 WAIVERS FINDINGS: The county and state waived land use regulations under Measure 37 to the date the applicants acquired the subject property -- October 21, 1974. The threshold questions following the property owners' Measure 37 waivers are: 1. What, if any, land use regulations applied to the subject property on October 21, 1974, and does the proposed subdivision comply with them; 2. What, if any, current non - exempt land use regulations apply to the proposed subdivision, and does the proposed subdivision comply with applicable current non - exempt regulations; and 3. What, if any, current exempt land use regulations apply to the proposed subdivision, and does the proposed subdivision comply with the current exempt regulations identified as applicable? These questions are addressed in the FINDINGS below. 1. What, If Any, Land Use Regulations Were In Effect as of October 21, 1974? As of October 21, 1974, the following land use regulations were in effect: a. The Deschutes County Comprehensive Plan adopted by the Deschutes County Board of Commissioners on June 17, 1970 by Resolution No. 1; MA07- 5/TP06 -983 Page 4 of 30 Hearings Officer Decision b. PL -2, the Deschutes Subdivision Ordinance passed and adopted by the Deschutes County Board of Commissioners on September 9, 1970; c. PL -5, the Deschutes County Zoning Ordinance, adopted by the Deschutes County Board of Commissioners on December 2, 1971; and d. The official zoning map for Deschutes County, adopted on November 15, 1972. e. ORS Chapter 215 (1993 ed.) Mr. and Mrs. Kennel acquired the subject property in October 21, 1974, after the county adopted its zoning map and related regulations. Accordingly, PL -2 and PL -5 apply to the proposed subdivision. In addition, as noted in the state's Measure 37 waiver set forth in the findings above, ORS chapter 215 (1973) was in effect in October 21, 1974. 2. Does the Applicants' Proposed Subdivision Comply With the Regulations Identified as Applicable in October 1974? FINDINGS: a. The 1970 Comprehensive Plan and Plan Map. The 1970 comprehensive plan describes its purpose at page 48 in pertinent part as follows: The Comprehensive Plan for Deschutes County provides policy guidance with respect to the general direction, extent and character of urbanization, transportation facility development and the management of resource areas of the County for the next 20 years. This part of the report describes the proposals of the Comprehensive Plan on a County wide basis. It is important to note, however, that proposals are shown geographically on a multi- colored Plan design entitled "Comprehensive Plan to 1990 — Deschutes County, Oregon" which is included in the packet for this report. The packet also includes black and white plan designs for the four major urban centers of the County. This report and the accompanying plan designs together comprise the Comprehensive Plan for Deschutes County. (Underscored emphasis added.) With respect to agricultural lands, at page 52 the plan states in pertinent part: Agriculture The intent of agricultural land use proposals of the Plan is to preserve and enhance the County's agricultural character and economic base, conserve areas of high quality soils and production, and aid in achieving orderly urban expansion. Two classes of agricultural land are indicated on the Plan. Intensive agriculture is shown for areas which are now under irrigation or are capable of being irrigated and where Class I and Class II soils are involved. Extensive agriculture is shown for those areas of the County where the primary agricultural activity involves grazing for sheep and beef cattle production. It is proposed that recreation subdivisions be discouraged within both the intensive and extensive agricultural land areas. MA07- 5/TP06 -983 Page 5 of 30 Hearings Officer Decision The 1970 comprehensive plan map is a color -coded map that designates every area of the county within one of three main use categories - "Urban Land Use," "Rural-Resource Use," and "Forest Management Zones" - and within one of several subcategories within each of these main categories. The "Rural- Resource Use' category includes the following five sub- categories: • Intensive Agriculture; • Extensive Agriculture; • Private Forest Management; • Parks and Recreation Areas; and • Recreation- Residential. According to the plan map, the subject property is located within the color -coded area labeled "Intensive Agriculture." Finally, on pages 90-91 the 1970 comprehensive plan addresses its relationship to the county's development regulations in pertinent part as follows: Zoning * * * A zoning ordinance is being drafted as part of the County's current planning program, and will consist of a map establishing the boundaries of various land use districts and a set of regulations and administrative procedures which govern the activities and standards of development permitted within the districts. The zoning ordinance should establish a definite relationship between land use regulations and policies and proposals of the Comprehensive Plan; it must provide sufficient flexibility to accommodate changing conditions; safeguards to assure the protection of individual liberty and the right of property and to avoid unjust discrimination must be balanced with the necessity for public regulation in the public interest. (Underscored emphasis added.) Subdivision Regulations In contrast with a zoning ordinance, which regulates land use, the subdivision ordinance sets forth specific standards of design and physical improvements for the development of land as a subdivision. A subdivision ordinance has been drafted and reviewed by the Citizens Advisory Committee for Planning. It prescribes standards for street and lot design, sewer and water service, storm water drainage, street lighting and fire protection facilities. Special requirements are included for reserving sites for public use and for conserving natural assets of the land. (Underscored emphasis added.) The 1970 comprehensive plan does not include mandatory approval criteria for the applicant's proposed subdivision. Rather, the 1970 plan -like the current county comprehensive plan - simply creates the policy framework for the land use regulations established in the zoning and subdivision ordinances which became effective following the board's adoption of the comprehensive plan. The comprehensive plan map designated the subject property "Intensive MA07- 5/TP06 -983 Page 6 of 30 Hearings Officer Decision Agriculture," but did not authorize or limit uses on the subject property based on that designation. b. PL -2, the Subdivision Ordinance. Section 102 of PL -2 states that its purposes include aiding in the implementation of the county's comprehensive plan, and assuring lots are of sufficient size and appropriate design for the purposes for which they are to be used. PL -2 includes the following additional introductory provisions: Section 106 Relationship to Comprehensive General Plan A subdivision plat shall conform to the policies of the Comprehensive General Plan and elements thereof as adopted by the County Board of Commissioners, with respect to the type and intensity of land use, population densities and distribution, locations and sizes of public areas, and rights- of-way and improvement of streets. (Underscored emphasis added.) Section 107 Relationship to Official Map A subdivision plat shall conform with the plans for the location, widening or extension of streets and highways and for other projects of a similar nature as shown on an Official Map as adopted by the Board of County Commissioners. In the absence of an Official Map, the alignments of streets or highways shall conform generally with the alignments of streets or highways shown on the Comprehensive General Plan or an element thereof. Section 108 Relationship to Zoning Ordinance A subdivision plat shall conform in all respects with applicable regulations of the zoning ordinance. (Underscored emphasis added.) Section 109 Construction and Definitions * * * C. Definitions * * * 27. Subdivision — An act of subdividing land or a tract of land subdivided as defined in this Section. * * * d. Rural Subdivision — A subdivision located in an area designated by the Comprehensive General Plan for agricultural or open use with lots having a gross area ranging from five (5) acres to ten (10) acres. * * * (Underscored emphasis added.) MA07- 5/TP06 -983 Page 7 of 30 Hearings Officer Decision Section 302 of PL -2 provides, in relevant part: A. Minimum Lot Area, Width, Depth, Frontage and Building Setback Lines: The minimum area, width, depth and frontage of lots and the minimum building setback line from streets shall conform with the requirements of the applicable zoning districts as provided in the zoning ordinance when applicable. In the absence of a zoning ordinance, or where provisions of the zoning ordinance have not been applied to the property to be subdivided, the area, width, depth, frontage of lots and building setback lines shall conform with the standards prescribed in Table 3 of this Section. Table 3 Minimum Area, Width, Depth, Frontage and Setback Lines of Lots Type Of Subdivision Minimum Area Minimum Width Minimum Depth *Minimum Street Frontage Min. Building Setback Line From Street Urban 7,000 sq. ft. 70' 100' 60' 25' Suburban 20,000 sq. ft. 80' 150' 80' 25' Rural Recreation 1 acre 150' 200' 100' 50' Rural 5 acres 300' 400' 150' 50' *The minimum frontage on curved streets or cul-de -sacs shall be 30 feet for Urban and Suburban Subdivisions and 60 feet for Rural Recreation Subdivisions. FINDINGS: The above - quoted provisions of PL -2 authorized the creation of "rural subdivisions" on land designated "agricultural" by the comprehensive plan map. PL -2 Section 302 established a 5 -acre minimum lot size for rural subdivisions. The zoning ordinance of PL- 5 was adopted December 2, 1971 and was effective January 1, 1972, map adopted November 11, 1972, before Mr. and Mrs. Kennel purchased the subject property. All seven (7) lots in the K Barr Estates subdivision satisfy the minimum lot size or minimum lot depth established in PL -2. The PL -2 Section 302 criteria have been met. c. PL -5, Deschutes County Zoning Ordinance Section 2.020 of PL -5 established 16 zone dassifications including two agricultural zones: the Exclusive Agricultural Zone (A -1), and the General Agricultural Zone (A -2). Sections 3.220 and 3.225 of PL -5 established minimum standards for lots in the A -1 Zone, and Sections 3.260 and 3.265 established minimum standards for lots in the A -2 Zone. These standards are set forth in the following chart: Zone Minimum Lot Size Minimum Lot Width Minimum Street Frontage Minimum Lot Depth A -1 5 acres 300' 150' 400' A -2 10 acres 300' 150' 600' Under Sections 3.210 and 3.250, respectively, the A -1 and A -2 Zones permitted outright "buildings and uses customarily provided in conjunction with farming." The record indicates the MA07- 51TP06 -983 Hearings Officer Decision Page 8 of 30 subject property was zoned A -1 when Mr. and Mrs. Kennel acquired it in October 1974. Therefore, the proposed subdivision must comply with the provisions of the A -1 Zone. The applicant's original proposal, TP06 -983, cites that the single - family dwellings on the subdivision lots would be dwellings in conjunction with farm use because the development would retain 21.6 acres of water rights on the subject property and an irrigation plan will be adopted to distribute the water rights equally throughout the property so that each subdivision lot has a proportioned acreage of irrigation water. The applicants argue, and staff agrees, that the proposed lots will be very similar to rural subdivisions, lots or parcels created in the 1970s. Staff believes that these lots sizes and water rights will facilitate future agricultural use of the proposed subdivision lots ( "hobby farms. ") Staff concluded that if the applicant ensures that each of the proposed lots will have at least two acres of water rights, the lots will satisfy standards for creating "farm parcels," and thus, any dwelling placed on the lots will be "dwellings customarily associated with farm uses" ("farm dwellings"), a use allowed outright under PL -5 and ORS 215.213(1)(e)(1973 ed.). The difficulty with the assumption that the dwellings that are to be placed on each of the seven lots are necessarily farm dwellings is that it is not consistent with case law.' In Matteo v. Polk County, 70 Or App 179, 687 P2d 820 (1984), the Oregon Court of Appeals held that a farm dwelling could only be established on a parcel that includes some farm use. In Doughton v. Douglas County, 82 Or App 444, 728 P2d 887 (1986), the Court also held that a determination of whether a farm dwelling is "customarily provided in conjunction with farm use" is a discretionary decision that requires an analysis of the farm uses occurring on a parcel and a determination that the proposed dwelling is "customarily provided" with those farm uses. Here, there is no evidence that the subject property is used for agricultural purposes in its present configuration, or that farm uses will be established prior to the approval of dwellings on the proposed lots. The only question asked and answered here is whether the proposed lots will satisfy the standards set out in PL -2 and PL -5. The hearings officer does not address, and does not conclude that the dwellings that may be placed on the lots are farm dwellings. That inquiry must be made and answered at the time the building permits are submitted to the county for review. Section 3.225 of PL -5 establishes the following minimum setbacks: • a 50 -foot front yard setback from the street; • a 10 -foot side yard setback except for a side yard adjacent to a street which must be 50 feet; and • a 50 -foot rear yard setback. The proposed 5 -acre lots will be of sufficient size to allow single- family dwellings to be constructed that meets these minimum setbacks. b. ORS 215 (1973 Edition) 1 Although the applicants have not asserted the argument, the hearings officer finds that case law interpreting the applicable land use standards provide the appropriate interpretation and analysis to evaluate the standards, and apply even if the decisions were rendered after the date the applicants acquired an interest in their property. ORS 197.352, the statute implementing Measure 37, applies only to "land use regulations" that were applied to the property after the date the claimant acquired an interest in the property at issue. An appellate decision interpreting an applicable standard is not a "regulation" within the scope of Measure 37. MA07- 5/TP06 -983 Page 9 of 30 Hearings Officer Decision The provisions of ORS 215.203, in effect in October 1974 when Mr. and Mrs. Kennel acquired the subject property, provided in pertinent part: (1) The following nonfarm uses may be established in any area zoned under ORS 215.010, 215.190 and 215.402 to 215.422 for farm use: * * * (e) The dwellings and other buildings customarily provided in conjunction with farm use, referred to in paragraph (a) of subsection (2) of ORS 215.203. FINDING: Staff found that the proposed dwellings will be "dwellings in conjunction in farm use" because they will be sited on lots that will have irrigation rights, and will be available for some farm uses. As the findings conclude, above, a finding that the proposed lots comply with applicable subdivision and minimum parcel size standards is not the same as a finding that (1) the proposed lots are suitable for the types of agricultural activities found in the area and are large enough to accommodate those farm uses, and (2) that dwellings are customarily provided in conjunction with those farm uses. This standard has not been met. ORS 215.263 Review of land divisions in exclusive farm use zones; criteria for approval; exemption for court - ordered property dispositions. * * * (2) Any proposed division of land included within an exclusive farm use zone resulting in the creation of one or more parcels of land less than 10 acres in size shall be reviewed and approved or disapproved by the governing body of the county within such land is situated. (3) If the governing body of a county initiates a review as provided in subsection (1) or (2) of this section, it shall not approve any proposed division of land unless it finds that the proposed division of land is in conformity with the legislative intend set forth in ORS 215.243. FINDING: The Deschutes County Board of County Commissioners has concluded that the hearings officer serves as the designated first level decision maker for land use applications submitted pursuant to Measure 37 waivers. However, the approval standards used to evaluate the application are the applicable standards in effect at the time the applicants acquired their property. The applicants and planning staff appear to assume that so long as the county land division standards are met, the statutory standards regarding farm dwellings and agricultural land divisions are met as well. That is not true. As late as 1992, the Oregon Court of Appeals reaffirmed its conclusion that statutes governing land uses in Exclusive Farm Use zones, such as the EFU-AL zone, apply notwithstanding the adoption of local implementing standards that comply with the Statewide Land Use Goals. See Kenagy v. Benton County, 115 Or App 131, 134 -135, 838 P2d 1076, rev den 315 Or 271 (1992). ORS 215.243 Agricultural land use policy. MA07- 5/TP06 -983 Page 10 of 30 Hearings Officer Decision The Legislative Assembly finds and declares that: (1) Open land used for agricultural use is an efficient means of conserving natural resources that constitute an important physical, social, aesthetic and economic as to all the people of this state, whether living in rural, urban or metropolitan areas of the state. (2) The preservation of a maximum amount of the limited supply of agricultural land is necessary to the conservation of the state's economic resources and the preservation of such land in large blocks is necessary in maintaining the agricultural economy of the state and for the assurance of adequate, healthful and nutritious food for the people of this state and nation. (3) Expansion of urban development into rural areas is a matter of public concern because of the necessary increases in costs of community services, conflicts between farm and urban activities and the loss of open space and natural beauty around urban centers occurring as the result of such expansion. (4) Exclusive farm use zoning as provided by law substantially limits alternatives to the use of rural land with the importance of rural lands to the public, Justifies incentives and privileges offered to encourage owners of rural lands to hold such lands in exclusive farm zones. FINDING: The applicant has not provided a detailed analysis of the land use patterns surrounding the subject property. Staff found that one -third of the site includes high value agricultural soils. Staff also reviewed an area comprised of land within a 2,640 -foot radius of the subject property to determine the existing land use patterns in the nearby area. The analysis area includes 18 tax lots that are predominantly zoned EFU -AL and EFU -TRB to the north, east and south. The subject property's west boundary is adjacent to a designated Rural Residential (RR -10) Zone. There are 23 tax lots within the EFU zones that range in size from 4.80 to 161.06 acres, averaging 36.05 acres. Five (5) of the EFU lots are 4 -10 acres. Eighteen (18) of the EFU lots are over 10 acres. There are sixteen (16) tax lots within the adjacent RR -10 zone that range in size from 9.00 to 51.42 acres, averaging 19.54 acres. Three (3) of the RR -10 lots are less than 10 acres in size. Eleven (11) RR -10 lots are 13.50 to 19.89 acres in size and two are over 20 acres. These surrounding lots in the EFU and RR -10 Zones are predominantly farms, hobby farms, and rural residences. In findings addressing DCC 17.16.100 (A), staff found that the proposed lot sizes do not contribute to the agricultural land base in the area, because it converts land that could be used for relatively productive agricultural activities into rural residential homesites. Staff nevertheless recommended approval of the subdivision, concluding that the standard did not apply to the proposal, as it was adopted after the applicants acquired the subject property, and had the consequence of reducing property values. The hearings officer finds that the evidence presented in the staff report constitutes substantial evidence that the proposal will not contribute to the agricultural economy. Therefore, ORS 215.263(3) is not satisfied because the subdivision does not conform to the agricultural lands policy. Because the applicants have not demonstrated that all applicable approval standards MA07- 51TP06 -983 Page 11 of 30 Hearings Officer Decision are satisfied or can be satisfied through the imposition of conditions of approval, the hearings officer must deny the application. However, in the event this decision is overturned on appeal, the hearings officer adopts the following findings with respect to the remaining criteria. 3. What, If Any, Current Non - exempt and Exempt Land Use Regulations Apply to the Proposed Subdivision? FINDINGS: DCC Titles 17 and 18, the current subdivision /partition ordinance and zoning ordinance, respectively, apply to the applicant's proposal to the extent application of these provisions does not result in a reduction in the value of the subject property, and to the extent they are less restrictive than the provisions of PL -5. As discussed in detail in the FINDINGS below, with a few exceptions, the provisions of Title 18 governing development of EFU-zoned land do not apply to the proposed subdivision because they would reduce the value of the subject property and therefore were waived by the county's Measure 37 order. As also discussed below, certain provisions of Title 18 that apply to the proposed subdivision deal with health and safety and therefore are exempt from Measure 37. Finally, as discussed in the FINDINGS below the provisions of Title 17 apply to the proposed subdivision because either they do not reduce the subject property's value or they are exempt from Measure 37. 4. Does the Applicants' Proposed Subdivision Comply with the Current Exempt and Non - exempt Regulations Identified as Applicable? FINDINGS: The proposed subdivision's compliance with applicable provisions of Titles 17 and 18 is discussed in detail in the FINDINGS below. B. TITLE 17 OF THE DESCHUTES COUNTY CODE. Chapter 17.16, Approval of Subdivision Tentative Plans and Master Development Plans. 1. Section 17.16.080. Tentative plan as a master plan. A. As an alternative to the filing of a master plan for phased development, the applicant may file a tentative plan for the entire development. The plan must comply with the provisions of DCC Title 17 for tentative plans. B. If the applicant proposed to phase development, he shall provide sufficient information regarding the overall development plan and phasing sequence when submitting the tentative plan. C. If the tentative plan is approved with phasing, the final plat for each phase shall be filed in accordance with DCC 17.24.020 through 17.24.110. FINDINGS: The applicant has not proposed phasing for the subdivision, as shown on the modified tentative plat map. The map conforms to the requirements of Title 17 for a tentative plat map. The final plat for must conform to the requirements of chapter 17.24, which include recording a final plat within two (2) years of the approval date. 2. Section 17.16.100. Required findings for approval. MA07- 5/TP06 -983 Page 12 of 30 Hearings Officer Decision A tentative plan for a proposed subdivision shall not be approved unless the Planning Director or Hearings Body finds that the subdivision as proposed or modified will meet the requirements of this title and Titles 18 through 21 of this code, and is in compliance with the comprehensive plan. Such findings shall include, but not be limited to, the following: A. The subdivision contributes to orderly development and land use patterns in the area, and provides for the preservation of natural features and resources such as streams, lakes, natural vegetation, special terrain features, agricultural and forest lands and other natural resources. FINDINGS: This criterion also requires that a proposed subdivision provide for the preservation of natural features and resources such as streams, lakes, natural vegetation, special terrain features, agricultural and forest lands and other natural resources. The applicant has not provided any detailed analysis of the land use patterns surrounding the subject property. Staff reviewed an area comprised of a 2,640 -foot radius of the subject property to establish the existing land use patterns in the nearby area. The analysis area includes 18 tax lots that are predominantly zoned EFUAL and EFUTRB to the north, east and south. The subject property's west boundary is adjacent to a designated Rural Residential (RR- 10) Zone. There are 23 tax lots within the EFU zones that range in size from 4.80 to 161.06 acres, averaging 36.05 acres. Five (5) of the EFU lots are 4 -10 acres. Eighteen (18) of the EFU lots are over 10 acres. There are sixteen (16) tax lots within the adjacent RR -10 zone that range in size from 9.00 to 51.42 acres, averaging 19.54 acres. Three (3) of the RR -10 lots are less than 10 acres in size. Eleven (11) RR -10 lots are 13.50 to 19.89 acres in size and two are over 20 acres. These surrounding lots in the EFU and RR -10 Zones are predominantly farms, hobby farms, and rural residences. Staff concluded that, other than agricultural lands, the only significant natural features on the property include a few juniper trees. There are no streams, lakes or other special terrain features. A portion of the property contains agricultural land as defined in DCC 18.04.030. In the Hurt ley Decision (TP -06 -974), the County Hearings Officer found that the "orderly development" approval criteria do not apply to Measure 37 proposals because consideration of these factors might result in a reduction in value of the subject property by reducing the number of potential subdivision lots. The agricultural features have been addressed above, in the section pertaining to ORS 215.263 (1973 ed.) The hearings officer here also agrees with staff that, to the extent DCC 17.16.100(A) imposes additional approval criteria to the proposed subdivision, those criteria do not apply because they were adopted after the applicants acquired their property, and are subject to the county's Measure 37 waiver. B. The subdivision will not create excessive demand on public facilities and services, and utilities required to serve the development FINDINGS: The evidence shows that the applicant proposes to establish a new public road just north of the existing Timland Lane easement. The segment that intersects with Gribbling Lane MA07- 5/TP06 -983 Page 13 of 30 Hearings Officer Decision to the west, and the main portion of the subdivision to the east is proposed to be constructed to 1974 standards. The road segment within the subdivision will be paved. The proposed lots will be of sufficient size to allow one dwelling per lot, along with the potential for accessory structures. The lots are to be served either by individual wells, a community well system or public water furnished by Avion Water District. Onsite septic systems will be established for each lot upon approval by the Deschutes County Environmental Health Department. The access roads designated to serve the subdivision are to be improved to comply with the County's 1974 rural local road standards for subdivisions. Fire protection will be from the Deschutes County Fire Protection District #2. Additionally, police services will be handled by the Deschutes County Sheriff's Office, which handles all of the rural county areas. These services address health and safety, and are not subject to Measure 37 waivers. The proposed subdivision will create additional traffic volumes on Gribbling Road; however, the County Road Department has determined that no traffic analysis is needed due to the low volume of projected traffic on the new subdivision road and Gribbling Road. To ensure that intersection safety is maintained, the proposed project is required to meet AASHTO guidelines for intersection spacing, intersection sight distance and stopping distance at the intersection of Gribbling Road and the proposed subdivision road. The County Road Department noted that Gribbling Road is a graveled county road, and that under DCC 17.16.105, the applicant is required to connect to Gribbling Road, and then improve Gribbling Road to county standards. However, the Road Department conceded that the road improvements are not necessary to ensure that the road is safe. Neighbors object to the proposed subdivision, arguing that the applicant should be obliged to satisfy current road standards, which would require paving the entirety of the subdivision road and improving Gribbling Road to its intersection with Highway 20. The neighbors note, and county staff concedes, that the segment of Gribbling Road between Timland Lane and Highway 20 includes a bridge that is weight- restricted. However, the county concluded that the road system has adequate capacity and is safe to serve the proposed subdivision, in part because emergency responders can use an alternate route to reach the subject property. The hearings officer relies on the agency responses to conclude that the proposed development will not create excessive demand on public facilities. The current county standards are intended to provide a funding alternative to improve the county -wide road system. There is no evidence that the proposed subdivision will generate a significant amount of traffic that would warrant road improvements to Gribbling Lane. Further, there is no evidence that a graveled subdivision road will be inadequate to accommodate traffic to and from the subdivision. C. The tentative plan for the proposed subdivision meets the requirements of Oregon Revised Statutes Section 92.090. FINDINGS: ORS 92.090 (1) requires that a new subdivision can only use the same name if it is a continuation of an existing subdivision, with a sequential numbering system, and must either be platted by the same party or have the consent of the previous party. The applicant has proposed a name of "K -Barr Estates." Neighbors object to the proposed subdivision name, arguing that the name will be confusing to buyers, who will assume that access to the subdivision will be via K -Barr Road. MA07- 5/TP06 -983 Page 14 of 30 Hearings Officer Decision K -Barr Estates does not appear in any other Deschutes County subdivision, and it is not clear to the hearings officer why the name of the proposed subdivision will connote access via K -Barr Road. In any event, the name must be approved by the County Surveyor. The hearings officer finds that ORS 92.090(1) can be satisfied through the imposition of a condition of approval requiring approval by the County Surveyor. Subsection 2 requires that the streets and roads are laid out to conform with existing plats on adjoining property, that streets and roads held for private use are clearly indicated on the tentative plan and all reservations or restrictions relating to such private roads and streets are set forth thereon. The street name shown on the tentative plan has been designated Timland Lane. However, Timland Lane is a private road that lies to the south of the proposed subdivision road. The new subdivision road name will require approval from the County Property Address Coordinator. Subsections 3, 4 and 5 relate to final platting. D. For subdivision or portions thereof proposed within a Surface Mining Impact Area (SMIA) zone under DCC Title 18, the subdivision creates lots on which noise or dust sensitive uses can be sited consistent with the requirements of DCC 18.56, as amended, as demonstrated by the site plan and accompanying information required under DCC 17.16.030. FINDINGS: The subject property is not located in a Surface Mining Impact Area (SMIA) zone. The criterion does not apply. E. The subdivision name has been approved by the County Surveyor. FINDINGS: As indicated in a foregoing FINDING, the tentative plat shows a name of "K-Barr Estates." This name does not appear in any other County subdivision; the proposed name must be approved by the County Surveyor. 3. Section 17.16.105, Access to subdivisions. No proposed subdivision shall be approved unless it would be accessed by Roads constructed to County standards and by Roads accepted for maintenance responsibility by a unit of local or state government. This standard is met If the subdivision would have direct access to an improved collector or arterial, or in cases where the subdivision has no direct access to such a collector or arterial, by demonstrating that the Road accessing the subdivision from a collector or arterial meets relevant County standards and has been accepted for maintenance purposes. FINDINGS: Timland Lane is a private road easement. Initially, the applicants proposed to dedicate a strip of land to be added to the Timland Lane easement, believing that adjacent property owners to the south would agree to dedicating a corresponding width to create a public right of way. The neighbors did not agree to the dedication and improvement of Timland Lane. As a result, the applicants have modified their proposal to dedicate a 60 foot -wide strip from the western boundary of proposed Lot 1 to Gribbling Road in addition to the segment within the subdivision itself. The applicants propose to improve the internal segment of the subdivision with an asphaltic concrete base, but oppose any requirement that the segment between Lot 1 MA07- 5/TP06 -983 Page 15 of 30 Hearings Officer Decision and Gribbling Road be paved. According to the applicants, if the road is paved, when Gribbling Road is not, drivers along the road will be tempted to drive at unsafe speeds. The applicants assert that if the proposed subdivision road is dedicated to the public and is improved to 1974 standards, the road will provide adequate access. The hearings officer finds that this standard is waived to the extent it requires improvements that are not related to public health and safety. However, as a consequence, the hearings officer also concludes that the county will not be required to include the road in its inventory of county roads for maintenance purposes, and that the applicant will be required to develop a road maintenance agreement, acceptable to the Road Department, that addresses the allocation of maintenance responsibilities among the owners of the lots. Further, the applicants are not relieved of the burden of showing that the proposed design satisfies applicable road standards for intersection spacing, sight distance and stopping distance, and that the road as constructed, satisfies requirements for emergency access. 4. Section 17.16.115. Traffic Impact Studies. C. Guidelines for Traffic Impact Studies b. Site Traffic Report (STR): If the development or change in use will cause the site to generate 50 -200 daily trip ends, and less than 20 PM peak hour trips, a Site Traffic Report will be required. FINDINGS: No traffic analysis or Site Traffic Report is needed, due to the projected volumes of vehicle traffic on both Timland Lane and Gribbling Road. This criterion does not apply. Chapter 17.36, Design Standards 1. Section 17.36.020, Streets. A. The location, width and grade of streets shall be considered in their relation to existing planned streets, topographical conditions, public convenience and safety, and the proposed use of land to be served by the streets. The street system shall assure an adequate traffic circulation system for all modes of transportation, including pedestrians, bicycles and automobiles, with intersection angles, grades, tangents and curves appropriate for the traffic to be carried, considering the terrain. The subdivision or partition shall provide for the continuation of the principal streets existing in the adjoining subdivision or partition or of their property projection when adjoining property is not subdivided, and such streets shall be of a width not less than the minimum requirements for streets set forth in DCC 17.36. B. Streets in subdivisions shall be dedicated to the public, unless located in a destination resort, planned community or planned or cluster development, where roads can be privately owned. Planned developments shall include public streets where necessary to accommodate present and future through traffic. MA07- 5/TP06 -983 Page 16 of 30 Hearings Officer Decision C. Streets in partitions shall be dedicated to the public. FINDINGS: The tentative plat map shows one (1) road connection to Gribbling Road from a new 60 -foot wide right of way, terminating at a cul -de -sac within the proposed subdivision. The County Road Department does not endorse the proposed street construction, but acknowledges that if constructed as proposed, the road will be adequate to protect public health and safety. This criterion can be satisfied through the imposition of conditions of approval. 2. Section 17.36.040, Existing Streets Whenever existing streets, adjacent to or within a tract, are of inadequate width to accommodate the increase in traffic expected from the subdivision or partition or by the county roadway network plan, additional rights of way shall be provided at the time of the land division by the applicant. During consideration of the tentative plan for the subdivision or partition, the Planning Director or Hearings Body, together with the Public Works Director, shall determine whether improvements to existing streets adjacent to or within the tract, are required. If so determined, such improvements shall be required as a condition of approval for the tentative plan. Improvements to adjacent streets shall be required where traffic on such streets will be directly affected by the proposed subdivision or partition. FINDINGS: Gribbling Road is of adequate width to accommodate the limited increase in traffic expected from the seven (7) additional lots being created in the proposed subdivision. This standard is satisfied. 3. Section 17.36.060, Minimum right of way and Roadway width. The street right of way and roadway surfacing widths shall be in conformance with standards and specifications set forth in DCC 17.48. Where DCC 17.48 refers to street standards found in a zoning ordinance, the standards in the zoning ordinance shall prevail. FINDINGS: As noted above, the hearings officer concludes that the applicant has demonstrated that if the new subdivision road is constructed to 1974 road standards, the road will be safe enough to accommodate traffic from the proposed subdivision. Swales are required for storm water disposal. 4. Section 17.36.120. Street names. Except for extensions of existing streets, no street name shall be used which will duplicate or be confused with the name of an existing street in a nearby city or in the County. Street names and numbers shall conform to the established pattern in the County and shall require approval from the County Property Address Coordinator. MA07- 5/TP06 -983 Page 17 of 30 Hearings Officer Decision FINDINGS: The applicant has proposed a new subdivision road, tentatively named " Timland Lane." However, Timland Lane already exists. An alternative acceptable to the County Property Address Coordinator must be proposed. 5. Section 17.36.140, Bicycle, pedestrian and transit requirements. A. Pedestrian and Bicycle Circulation within Subdivision. 1. The tentative plan for a proposed subdivision shall provide for bicycle and pedestrian routes, facilities and improvements within the subdivision and to nearby existing or planned neighborhood activity centers, such as schools, shopping areas and parks in a manner that will: a. Minimize such interference from automobile traffic that would discourage pedestrian or cycle travel for short trips; b. Provide a direct route of travel between destinations within the subdivision and existing or planned neighborhood activity centers; and c. Otherwise meet the needs of cyclists and pedestrians, considering the destination and length of trip. FINDINGS: The subject property is not located near of any neighborhood activity centers, schools, shopping areas or parks. The new streets within the subdivision will allow for pedestrian and bicycle use on the improved road surface. 2. Subdivision layout. a. Cul-de -sacs and dead -end streets shall be allowed only where, due to topographical or environmental constraints, the size and shape of the parcel, or lack of through street connections in the area, a street connection is determined by the Planning Director or Hearings Body to be infeasible or in appropriate. In such instances, where applicable and feasible, there shall be a bicycle and pedestrian connection connecting the ends of cul-de -sacs to streets or neighborhood activity centers on the opposite side of the block. b. Bicycle and pedestrian connections between streets shall be provided at mid - block where the addition of a connection would reduce the walking or cycling distance to an existing or planned neighborhood activity center by 400 feet and by at least 50 percent over other available routes. c. Local Roads shall align and connect with themselves across collectors and arterials. Connections to existing or planned MA07- 51TP06 -983 Page 18 of 30 Hearings Officer Decision streets and undeveloped properties shall be provided at no greater than 400 foot intervals. d. Connections shall not be more than 400 feet long and shall be as straight as possible. FINDINGS: The modification and redesign of the subdivision provides for future access to Gribbling Road and Timland Lane for Tax lots 100, 1400, 1700 and 1800 that are within a designated RR -10 zone. The applicant has modified the access to K-Barr Estates to use a new road terminating in a cul-de -sac for access to the subdivision. The applicants did not provide any master development conceptual plan for future development on adjacent RR -10 Zoned property, however, the proposed modification in this application provides a dedicated public road for adjacent or nearby properties within the RR -10 Zone for future development that may occur between the subject property and Gribbling Road. There are no existing or planned neighborhood activity centers in the area. 3. Facilities and Improvements. a. Bikeways may be provided by either a separate paved path or an on- street bike lane, consistent with the requirements of DCC Title 17. b. Pedestrian access may be provided by sidewalks or a separate paved path, consistent with the requirements of DCC Title 17. c. Connections shall have a 20 -foot right of way, with at least a 10 -foot usable surface. FINDINGS: Bicycle and pedestrian access for the subdivision will be within the proposed interior roads on the site, which will meet standards for rural local roads outside of urban unincorporated communities and urban areas. 6. Section 17.36.160, Easements A. Utility Easements. Easements shall be provided along property lines when necessary for the placement of overhead or underground utilities, and to provide the subdivision or partition with electric power, communication facilities, street lighting, sewer lines, water lines, gas lines or drainage. Such easements shall be labeled "Public Utility Easement" on the tentative and final plat; they shall be at least 12 feet in width and centered on lot lines where possible, except utility pole guyline easements along the rear of lots or parcels adjacent to unsubdivided land may be reduced to 10 feet in width. FINDINGS: No response was received from the utility companies indicating that additional easements are necessary. A condition of any approval can be imposed to require documentation from Qwest Communications and Central Electric Cooperative, Inc. detailing what, if any, utility easements exist or will be required on the subject property. All required and existing easements must be shown on the final plat. MA07- 5/TP06 -983 Page 19 of 30 Hearings Officer Decision 7. Section 17.36.170 Lots - Size and Shape The size, width and orientation of lots or parcels shall be appropriate for the location of the land division and for the type of development and use contemplated, and shall be consistent with the lot or parcel size provisions of Titles 18 through 21 of this code: FINDINGS: The proposed lots will accommodate single-family dwellings. The proposed lots meet the applicable size requirements. This criterion has been met. 8. Section 17.36.180, Frontage A. Each lot or parcel shall abut upon a public Road for at least 50 feet, except for lots or parcels fronting on the bulb of a cul-de -sac, then the minimum frontage shall be 30 feet, and except for partitions off of U.S. Forest Service or Bureau of Land Management Roads. B. All side lot lines shall be at right angles to street lines or radial to curved streets wherever practical. FINDINGS: All proposed lots will have frontage on the internal subdivision road and will meet the frontage standards in accordance with PL -2, Article 3, Section 302, Table 3 and PL -5, Section 302.220(2). The side lot lines are at right angles to the public road. The modified subdivision design meets this criterion. 9. Section 17.36.210, Solar Access Performance A. As much solar access as feasible shall be provided each lot or parcel in every new subdivision or partition, considering topography, development pattern and existing vegetation. The lot lines of lots or parcels, as far as feasible, shall be oriented to provide solar access at ground level at the southern building line two hours before and after the solar zenith from September 22nd to March 21st. If it is not feasible to provide solar access to the southern building line, then solar access, if feasible, shall be provided at 10 feet above ground level at the southern building line two hours before and after the solar zenith from September 22nd to March 21st, and three hours before and after the solar zenith from March 22nd to September 21st. B. This solar access shall be protected by solar height restrictions on burdened properties for the benefit of lots or parcels receiving the solar access. C. If the solar access for any lot or parcel, either at the southern building line or at 10 feet above the southern building line, required by this performance standard is not feasible, supporting information must be filed with the application. MA07- 5/TP06 -983 Page 20 of 30 Hearings Officer Decision FINDINGS: The proposed lots are five (5) gross acres in size or larger. The large lot dimensional depth configurations permit construction of single - family dwellings on the approved lots within a building envelope that satisfies this criterion. 10. Section 17.36.260, Fire hazards. Whenever possible, a minimum of two points of access to the subdivision or partition shall be provided to provide assured access for emergency vehicles and ease resident evacuation. FINDINGS: The applicant has modified and reconfigured all lots within the subdivision with minimum frontage adjacent to the proposed subdivision road ending with a cul-de -sac near the center of the subdivision. The applicant indicates that the Deschutes County Fire Marshal has been contacted regarding the proposed cul-de -sac. According to the applicant, the Fire Marshal "expressed no concern with the proposed subdivision or cul-de -sac length due to the small number of dwellings in this subdivision." The applicant, therefore, has not proposed a secondary access to the subdivision. If the Deschutes County Fire District approves the construction of subdivision road and the length of cul-de -sac, a minimum of two points of access for emergency vehicles is not required. The emergency access road shall be constructed in compliance with 2004 Oregon IFC Section 503 and Appendix D. The emergency access road shall be inspected and approved in writing by the Fire Marshal prior to final plat approval. 11. 17.36.270, Street Tree Planting FINDINGS: not apply. Street tree planting plans, if proposed, for a subdivision or partition, shall be submitted to the Planning Director and receive his approval before the planting is begun. No planting of street trees are proposed in this application. This criterion does 12. Sections 17.36.290, Individual wells, and 17.36.300, Public water system. 17.36.290 In any subdivision or partition where individual wells are proposed, the applicant shall provide documentation of the depth and quantity of potable water available from a minimum of two wells within one mile of the proposed land division. Notwithstanding DCC 17.36.300, individual wells for subdivisions are allowed when parcels are larger than 10 acres. 17.36.300 In any subdivision or partition where a public water system is required or proposed, plans for the water system shall be submitted and approved by the appropriate state of federal agency. A community water system shall be required where lot or parcel sizes are less than one acre or where potable water sources are at depths greater than 500 feet, excepting land partitions. Except as provided for in DCC 17.24.120 and 17.24.130, a required water system shall be constructed and operational, with lines extended to the lot line of each and every lot depicted in the proposed subdivision or partition plat, prior to final approval. MA07- 5/TP06 -983 Page 21 of 30 Hearings Officer Decision FINDINGS: The subject property is within the Avion Water District boundary and the applicant supplied a "will- serve" letter from Avion Water District. A condition of approval is warranted to require proof of service from the water district at the time the final plat is filed. PL -2, Section 205(A)(7) states that "In any subdivision where lots are to be greater than one (1) acre in area and where sewage disposal is to be provided by means of individual sewage disposal systems, water may be supplied from wells on individual lots or from an irrigation district serving the area in which the subdivision is located until such time as a public water supply is available, providing the County Sanitarian determines that individual sewage disposal systems will be located and constructed so as not to contaminate any existing or proposed well, irrigation district distribution facility, or any existing stream of underground water supply on the property to be subdivided or on adjoining property" FINDINGS: The applicant proposes to develop individual subsurface sewage disposal on each of the lots. A condition of approval is warranted to demonstrate that adequate area is available for an individual system on each lot prior to filing a final plat. C. Chapter 17.44, Park Development 1. Section 17.44.020. Fee in lieu of dedication. A. In the event there is no suitable park or recreation area or site in the proposed subdivision or partition, or adjacent thereto, then the developer shall, in lieu of setting aside land, pay into a park acquisition and development fund a sum of money equal to the fair market value of the land that would have been donated under DCC 17.44.010 above. For the purpose of determining the fair market value, the latest value of the land, unplatted and without improvements, as shown on the County Assessor's tax roll shall be used. The sum so contributed shall be deposited with the County Treasurer and be used for acquisition of suitable area for park and recreation purposes or for the development of recreation facilities. Such expenditures shall be made for neighborhood or community facilities at the discretion of the Board and /or applicable park district. B. DCC 17.44.020 shall not apply to subdivision or partition of lands located within the boundaries of the Bend Metro Park and Recreation District or the Central Oregon Park and Recreation District. FINDINGS: Section 17.44.010 requires a dedication of parkland, unless there is no suitable land for a park on the property, and section 17.44.020 allows a fee in lieu of a dedication. Staff believes there is no suitable land for a park, therefore, this criterion applies and the 6 additional lots would require a parks fee of $2,100 ($350 x 6). Staff believes this criterion applies as the creation of regional parklands has had substantial positive impacts on regional property values. The applicant has agreed to pay $2,100 to satisfy this standard. D. Chapter 17.48, Design and Construction Specifications MA07- 5/TP06 -983 Page 22 of 30 Hearings Officer Decision 1. Section 17.48.050, road design. The design of roads covered by DCC Title 17 is to be prepared by a registered professional engineer and shall at a minimum conform to the design standards for new or existing roads set forth in Table A of DCC Title 17 (or in the design standards set forth for a particular zone in a zoning ordinance) and shall otherwise conform with AASHTO standards. Base and pavement dimensions set forth in Table A (or in specifications set forth for a particular zone) may be increased by the Road Department Director if necessitated by anticipated traffic volumes. FINDINGS: A registered professional engineer must complete the proposed road design for the new streets within this subdivision. Gribbling Road and the proposed subdivision road shall satisfy applicable design standards set out by the Fire District and 1974 road design standards. If there is a conflict between the two standards, the Fire District standards shall control, as they provide the minimum standards necessary to assure safe access. 2. Section 17.48.160, Road development requirements — Standards. A. Subdivision Standards. All roads in new subdivisions shall either be constructed to a standard acceptable for inclusion in the County maintained system or the subdivision shall be part of a special Road district or a homeowners association in a planned unit development. FINDINGS: The applicant is proposing to construct the new roads within the subdivision to 1974 County rural local road standards. The County Road Department has indicated to staff that the proposed subdivision application was received after the current moratorium on adding any additional roads into the County maintained system; therefore, all roads proposed in the K- Barr Estates subdivision will not be eligible for addition to that system. Therefore, as a condition of any approval, the applicant shall record a Road Maintenance Agreement, acceptable to the County Road Department, prior to final plat approval. B. Improvements to Public Rights of Way. 1. The developer of a subdivision or partition will be required to improve all public ways that are adjacent or within the land development. 2. All improvements within public rights of way shall conform to the improvement standards designated in DCC Title 17 for the applicable Road classification, except where a zoning ordinance sets forth different standards for a particular zone. FINDINGS: The proposed subdivision road shall be constructed to the 1974 County rural local road standard for subdivisions, or to current Fire District emergency access standards, whichever is stricter. While Gribbling Road will be used as access road to the subdivision, the impact of the proposed seven lots will not affect road safety. Accordingly, to the extent these standards are not required to assure adequate safe passage on public roads, they do not apply. C. Primary Access Roads. The primary access road for any new subdivision shall be improved to the applicable standard set forth in MA07- 5/TP06 -983 Page 23 of 30 Hearings Officer Decision Table A. The applicable standard shall be determined with reference to the road's classification under the relevant transportation plan. For purposes of DCC 17.48.160 a primary access road is a road leading to the subdivision from an existing paved county, city or state maintained road that provides the primary access to the subdivision from such a road. FINDINGS: The primary access road for this subdivision is Gribbling Road, which is a County maintained road. D. Secondary Access roads. When deemed necessary by the County Road Department or Community Development Department, a secondary access road shall be constructed to the subdivision. Construction shall be to the same standard used for roads within the subdivision. FINDINGS: The County Road Department has not requested a secondary access road. F. Cul-de -sacs. Cul-de -sacs shall have a length of less than 600 feet, unless a longer length is approved by the applicable fire protection district, and more than 100 feet from the center of the bulb to the intersection with the main Road. The maximum grade on the bulb shall be four percent. FINDINGS: As shown on the submitted site plan, the proposed cul-de -sac is approximately 1,558.41 feet long. No grade information has been provided regarding the proposed cul -de -sac bulb. PL -2 requires that cul -de -sacs not exceed 800 feet for rural subdivisions. Staff believes that the restriction on the length of cul-de -sac lengths is directly related to public health and safety for emergency vehicle uses. The Hearings Officer agrees. The applicant has stated that the Fire Marshal expressed "no concern with the proposed subdivision or cul-de -sac length due to the small number of dwellings in this subdivision ". The comment from the Fire District did not express any concerns. They simply state the cul-de -sacs must have an approved turn- around. The DCRFPD should provide a written acceptance of the proposed design and construction of the approximately 1,558.41 feet length for the cul-de -sac prior to final plat approval. E. TITLE 18 OF THE DESCHUTES COUNTY CODE, COUNTY ZONING. CHAPTER 18.16, EXCLUSIVE FARM USE ZONES. 1. Section 18.16.025. Uses permitted subject to the special provisions under DCC 18.16.038. A. Dwellings customarily provided in conjunction with farm use (farm - related dwellings). FINDINGS: The applicants acquired the subject property after the property was designated A -1 (Exclusive Agriculture Zone). The subject property is located within an EFU zone and, consequently, the placement of dwellings is subject to review under this standard. As noted MA07- 5/TP06 -983 Page 24 of 30 Hearings Officer Decision above, there is no evidence that the lots will be developed with farm uses. Therefore, it is premature to assume that farm dwellings would be permissible. 2. Section 18.16.030, Conditional uses Dermitted — High value and nonhigh value farmland. The following uses may be allowed in the Exclusive Farm Use zones on either high value or nonhigh value farmland subject to applicable provisions of the Comprehensive Plan, DCC 18.16.040 and 18.16.050, and other applicable sections of DCC Title 18. A. Nonfarm dwelling and accessory uses thereto. B. Lot of record dwelling. FINDINGS: Even if DCC 18.16.030 did not exist at the time the applicants acquired the subject property, the County had adopted the Deschutes County Comprehensive Plan of 1970 and Subdivision Ordinance No. PL -2 in 1970 and Deschutes County Zoning Ordinance PL -5 of 1972. The ordinances permitted "dwellings in conjunction with farm uses," and "nonfarm dwellings" although standards regarding high -value and non -high value soil type(s) on the subject property did not exist. The hearings officer concludes that the applicants must demonstrate either that the lots are suitable for agricultural activities and thus the dwellings will be farm dwellings, or that the site is not generally suitable for farm use and the dwellings are non -farm dwellings. That demonstration has not been made. 3. Section 18.16.050, Standards for dwellings in the EFU zones. Dwellings listed in DCC 18.16.025 and 18.16.030 may be allowed under the conditions set forth below for each kind of dwelling, and all dwellings are subject to the landowner for the property upon which the dwelling is placed, signing and recording in the deed records for the County, a document binding the landowner, and the landowner's successors in interest, prohibiting them from pursuing a claim for relief or cause of action alleging injury from farming or forest practices for which no action or claim is allowed under ORS 93.396 or 30.397. FINDINGS: This requirement is a non - exempt regulation because there is no evidence to suggest that the recordation of such waivers reduces property values. The County Hearings Officer, in decisions rendered on the Stills (MP- 05 -21), McLean/Johnson (TP-06 -971) and Hurt ley (TP -06 -974) applications concluded that the requirement above was not waived and was made a condition of approval. This same condition is warranted in this case. 1 r 4. Section 18.16.055. Land Divisions and 18.16.065. Subzones FINDINGS: The property owner was granted a Measure 37 waiver from those non - exempt land use regulations adopted after the purchase that resulted in a reduction of property value. Staff believes application of the land division criteria of DCC 18.16.055 and 18.16.065 would result in fewer potential lots and a reduction in property value and, therefore, these criteria should be waived. MA07- 5/TP06 -983 Page 25 of 30 Hearings Officer Decision 5. Section 18.16.060, Dimensional Standards A. The minimum parcel size for divisions of irrigated parcels created subject to DCC Title 17 shall be as specified under DCC 18.16.065, "Su bzones. " B. The minimum parcel size for non - irrigated land divisions is as specified under DCC 18.16.055(C). C. The minimum lot area for all uses permitted by DCC 18.16.030(G) through (CC) shall be that determined by the Planning Director or Hearings Body to carry out the intent and purposes of ORS 215, DCC Title 18 and the Comprehensive Plan. In no case shall lot areas be less than one acre. D. Each lot shall have a minimum street frontage of 50 feet. E. Building height No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. FINDINGS: The property owner was granted a Measure 37 waiver in Board of Commissioners Order No. 2005 -110 from those non - exempt land use regulations adopted after October 21, 1974 that resulted in a reduction of property value. The original Measure 37 claim submitted by the applicant requested approval for the creation of seven (7) lots, containing five (5) gross acres each. Except for the frontage standards of 18.16.060(D) and the building height restriction of 18.16.060(E), the standards listed in DCC 18.16.060(A -C) do not apply. Compliance with the frontage standards and building height restriction do not reduce the property value for this proposed subdivision. In addition, the more restrictive setback distances of PL -2 and PL -5 apply, as they were in effect at the time the applicants acquired their property and were not waived. 6. Section 18.16.070, Yards. A. The front yard shall be 40 feet from a property line fronting on a local street, 60 feet from a property line fronting on a collector and 100 feet from a property line fronting on an arterial. B. Each side yard shall be a minimum of 25 feet, except that for nonfarm dwelling proposed on parcels or lots with side yards adjacent to a property currently employed in farm use, the side yard shall be a minimum of 100 feet. C. Rear yards shall be a minimum of 25 feet, except that for nonfarm dwellings proposed on parcels or lots with rear yards adjacent to a property currently employed in farm use, the rear yard shall be a minimum of 100 feet MA07- 5/TP06 -983 Page 26 of 30 Hearings Officer Decision D. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. FINDINGS: The property owner was granted a Measure 37 waiver from those non - exempt land use regulations adopted after the purchase that resulted in a reduction of property value. Staff has reviewed the current 100 foot setback requirement for non farm dwellings against the modified tentative plat drawing for the proposed subdivision. This type of setback distance for non -farm dwellings from adjacent property currently employed in farm uses or receiving farm deferral (identified as Tax Lots 100, 600, 700, 900 and 1000) appears to restrict future dwelling locations to within building envelopes available on the proposed lots. Although a building envelope established in compliance with the increased setback distances would permit a dwelling to be constructed on the site, Staff believes that this 100 -foot setback restricts the option of future lot purchasers to place dwellings on the lots created, therefore, may contribute to a potential reduction in value of the applicant's property. The Hearings Officer, in Hurtley (TP -06 -974) determined that "....since the 100 foot setbacks are required by state law to protect farm activity from conflicts with non -farm dwellings, I find that both the state's waiver and the fact the dwellings in the subdivision would not be non -farm dwelling means that these setbacks are not applicable to the proposed subdivision." However,Hurtley does not control here, because the farm dwelling /nonfarm dwelling distinction had been created by statute in 1973. The hearings officer finds that if the proposed lots will be developed with farm dwellings, the 100 foot setback does not apply, but if the lots are developed with nonfarm dwellings, each lot must be evaluated to see if a dwelling could be sited on it in compliance with the applicable standards. Staff notes that Deschutes County Board of Commissioners Resolution No. 1, signed June 17, 1970, adopted the "Comprehensive Plan to 1990" map of Deschutes County. This map identifies the subject property as Intensive Agriculture. Also, the County had adopted Subdivision Ordinance No. PL -2 in 1970 that identified rural subdivision regulations in effect and prior to the owner's purchase of the subject property. The proposed subdivision constitutes a rural subdivision, regulated under Section 302 of PL -2 and Sections 3.210 to 3.230 of PL -5 zoning ordinance, adopted in 1972 and prior to the applicant purchasing the property in October 21, 1974. PL -2 specifies (Section 302, Table 3, Page 16) that buildings in rural subdivisions are setback a minimum of 50 feet from a street. This 50 feet street setback distance is more restrictive than the existing EFU-ALFALFA (EFU-AL) Zone front yard of 40 feet. The more restrictive PL -2 minimum 50 feet building setback line from the proposed subdivision street should apply in accordance with the criteria of PL -2. Zoning Ordinance PL -5, Section 3.225, Yards, states the following: 1. A front yard shall be a minimum of 50 feet between a building or structure and the ultimate street right -of -way as adopted on the Comprehensive Plan or Official Map. 2. A side yard shall be a minimum of 10 feet, except that on a corner lots the side yard on the street side shall be a minimum of 50 ft. 3 A rear yard shall be a minimum of 50 feet. MA07- 5/TP06 -983 Page 27 of 30 Hearings Officer Decision The existing EFU AL Zone, 18.16.070, side yard setback distance cited above is more restrictive than the PL -5 criteria; however, the applicant may choose to provide a greater side yard distance than the minimum 10 feet. Front and rear yard setback distances in PL -5 require a minimum of 50 feet. The criteria for minimum front and rear yard setback distances in PL -5 apply. F. DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT MEASURE 37 FINAL ORDER CLAIM NO. M118741 FINDINGS: This DLCD order was adopted and approved based upon the record, including FINDINGS and Conclusions set forth in the Final Staff Report and Recommendation of DLCD. DLCD Order Claim No. M118741 states that: The Claim is approved as to laws administered by DLCD and the Land Conservation and Development Commission (LCDC) for the reasons set forth in the DLCD Report, and subject to the following terms: 1. In lieu of compensation under ORS 197.352, the State of Oregon will not apply the following laws to Delmar and Delores Kennel's partition of the 35- acre property into 5-acre parcels of to their development of a dwelling on each parcel: applicable provisions of Goal 3, ORS 215 and OAR 660, division 33, enacted or adopted after October 21, 1974. These land use regulations will not apply to the claimants only to the extent necessary to allow them to use the subject property for the use described in this report, and only to the extent that use was permitted when they acquired the property on October 21, 1974. The modification of this application proposes the creation of seven (7) parcels containing 5 acres each in accordance with this order. This proposal is consistent with the Order. IV. CONCLUSION: Based on the findings of facts and conclusions of law set out above, the hearings officer concludes that the applicant has not demonstrated that the proposed subdivision satisfies ORS 215.263 (1973 ed.) or statutes and case law pertaining to the siting of dwellings on EFU land. Accordingly, this application is denied. If the hearings officer's decision is overturned on appeal, the hearings officer recommends the following conditions of approval: 1. Approval is based upon the creation of 7 lots as depicted in MA -07 -5, as amended in the proceedings to establish a separate subdivision road access from Gribbling Road. Any substantial change to the approved plan will require a new application. The final plat review shall require an up-to -date title report. All persons with an ownership interest in the property shall sign the final plat or consent to partition. 2. The applicant shall obtain a site evaluation for each lot from the Deschutes County Environmental Health Division prior to final plat approval. 3. The dwellings shall be limited to 30 feet in overall height, unless a height exception is approved under section 18.120.040 of Title 18. MA07- 5/TP06 -983 Page 28 of 30 Hearings Officer Decision 4. The applicant shall have a licensed land surveyor prepare a subdivision plat that conforms to Oregon Revised Statutes Chapter 92 and Title 17 of the Deschutes County Code. The final plat shall show the exact sizes for each lot. 5. The final plat shall comply with the criteria of Central Oregon Irrigation District regarding easements, removal of water rights or approval of a Developer Irrigation Plan (DIP). The final plat shall contain a statement of water rights and be signed by an authorized representative from the irrigation district. Each lot shall contain at least 2.00 acres of water rights. 6. All ad valorem taxes, fees and other charges that have become a lien upon the entire parcel shall be paid. The final plat shall be signed by the County Assessor and County Tax Collector. 7. All easements of record shall be shown on the final plat. 8. Access permits for the proposed lots shall be obtained prior to final plat approval. 9. The applicant/property owner shall sign and record the waiver listed under 18.16.050 for adjacent farm and forest uses, prior to final plat approval. 10. The subdivision name shall require review and approval by the County Surveyor. 11. All road names shall require review and approval from the County Property Address Coordinator. 12. The front yard and rear yard setback distances shall be a minimum of 50 feet in accordance with the criteria of PL -2. Side yard setback distances shall meet the minimum setbacks under section 18.16.070. The 100 -foot setback from farm uses applies if (1) the dwellings sited on the lots are nonfarm dwellings, and (2) the imposition of the 100 -foot setback will not reduce property values. 13. All lot frontage distances shall be a minimum of 150 feet. 14. The maximum grade on any cul-de -sac bulb shall not exceed four (4) percent. 15. Road design and construction of the subdivision road shall be in accordance with minimum local rural road subdivision standards, consisting of a 60 -foot wide right of way width, 28 foot wide cinder of equivalent surfacing, and six inches of aggregate depth, as listed in Table 3 of Subdivision Ordinance PL -2, adopted September 9, 1971, or Fire District Emergency access standards, whichever is stricter. The portion of the subdivision road from the western boundary of Lot 1 to the cul-de -sac terminus may be paved with two inches of AC for a 20 -foot road width in lieu of aggregate surfacing. All road design and construction shall be approved by the County Road Department and the Fire District prior to commencement of construction. 16. The applicant shall be responsible for the maintenance of the subdivision road. The applicant shall record a road Maintenance Agreement with the County Clerk outlining the maintenance responsibilities of the road. The agreement shall be reviewed and approved by the County Road Department prior to recording. MA07- 5/TP06 -983 Page 29 of 30 Hearings Officer Decision 17. The domestic water system for the subdivision shall be provided in accordance with DCC 17.36.300. If Avion Water District does not provide domestic water to the subdivision, prior to final plat approval, the applicant shall provide a detailed report regarding available ground water and an engineered water distribution system design prepared by a registered professional engineer and /or hydro - geologist for any community water system. The applicant shall provide written authorization and approval from the State Health Department and Watermaster District 11 for any proposed community water system and submit the written document to the Planning Department prior to issuance of any building permits. 18. Prior to final plat approval, the applicant shall obtain documentation from telephone and electrical power providers serving the subject property detailing what, if any, utility easements exist or will be required on the subject property. All required and existing easements must be shown on the final plat. 19. Prior to final plat approval, the applicant shall provide written documentation to the Planning Department that Deschutes County Rural Fire Protection District #2 has inspected and approved (1) any designated water supply for fire prevention purposes as required in 2004 Oregon IFC and (2) approved the cul-de -sac length of the subdivision road. 20. Applicable park development fees in the amount of $2,100 shall be paid prior to final plat approval. 21. The applicant shall submit a request for the subdivision road to be dedicated in accordance with DCC 17.52 and receive County acceptance of the dedication prior to final plat approval. 22. There shall be no direct road access to the subdivision from K -Barr Road. Dated this ! Ih of October, 2007. Mailed this ,.of October, 2007. A ne Corcoran Briggs Hearings Officer THIS DECISION IS FINAL UNLESS APPEALED WITHIN 12 DAYS OF THE DATE OF THIS DECISION. MA07- 5/TP06 -983 Hearings Officer Decision Page 30 of 30