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HomeMy WebLinkAboutHearing Leventhal Zone Change ApplicationDeschutes 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 March 30, 2009 Please see directions for completing this document on the next page. DATE: 3/10/09 FROM: Will Groves CDD x6518 TITLE OF AGENDA ITEM: Public de novo hearing on the Vandevert Road, LLC's proposed zone change from Forest Use (F -1) to Forest Use (F -2) for an approximately 98 -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 February 25, 2006. 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 December 22, 2008. The 150 -day clock will expire on May 21, 2009. FISCAL IMPLICATIONS: None. RECOMMENDATION & ACTION REQUESTED: Conduct de novo hearing. ATTENDANCE: BOCC, Legal, Will Groves DISTRIBUTION OF DOCUMENTS: BOCC, Legal, Will Groves 1 EGRET DR' AUICLET. R U. I1 SNOW.GOOSE RD=� ' I II i GREBE RD 1 1 IKIr IEI IRI J // /I i II Subject Property 20- 11 -00 -00 -00105 BEAR.PAW.LN II MOCKINGBIRD'LN O DIAK'LN DIPPEROLN - TRUMPETER.L -t 0 OLD' WOOD RD Il 0011 IM:RD .-- RU'GUELFI RD i l Zone Change from Forest Use 1 (F1) to Forest Use 2 (F2) R r ro.ayn .s..a o.a.,rw,w 0.u. aw Nb rn'Me,we.uw+mi nu.etlu ^ a •n . aha n.v. Legend ® Subject Property 20- 11 -00 -00 -00105 County Zoning EFU La Pine Subzone (EFULA) Flood Plain (FP) Forest Use 1 (F1) Forest Use 2 (F2) Rural Residential (RR10) PROPOSED ZONING MAP Vandevert Road, LLC Exhibit "B" to Ordinance 2009 -XXX v L" 0 330 880 1,320 1,980 Foot March 11, 2009 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON Tammy Baney, Chair Dennis R. Luke, Vice Chair Alan Unger, Commissioner ATTEST: Recording Secretary Dated this day of April, 2009 Effective Date: April 2009 tii Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701 -1925 (541)388 -6575 FAX (541)385 -1764 http : / /www.co.deschutes.or.us /cdd/ Staff Report The Deschutes County Hearings Officer will hold a Public Hearing on January 27, 2009 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 NUMBERS: ZC -08 -7 LOCATION: This property is Tax Lot 105 on Assessor's Map 20- 11 -00. APPLICANT: David Leventhal, General Counsel Vandevert Road, LLC 18565 Soledad Canyon Road, Suite 300 Santa Clarita, CA 91351 PROPERTY OWNER: Vandevert Road, LLC 18565 Soledad Canyon Road, Suite 300 Santa Clarita, CA 91351 APPLICANT'S ATTORNEY: Tamara E. MacLeod Karnopp Petersen LLP 1201 N.W. Wall Street, Suite 300 Bend, Oregon 97701 REQUEST: The applicant requests approval of a zone change from F -1 to F -2 for the subject property. STAFF CONTACT: Will Groves, Senior Planner 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 B. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan Quality Services Performed with Pride 1. Chapter 23.92, Forest Lands * Section 23.92.020, Goal * Section 23.92.030, Policies 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 4 miles south of Sunriver. It abuts Vandevert Road to the north, South Century Drive to the west, Blue Eagle Road to the east, and privately owned land to the south. The subject property is identified as Tax Lot 105 on Assessor's Map 20 -11 -00 and shown in greater detail on Assessor's Map 20- 11 -20. B. Zoning and Plan Designation: The subject property is zoned F -1, Forest Use, and designated Forest on the Deschutes County Comprehensive Plan map, a copy of which was submitted as Exhibit D. Because the Applicant is seeking approval of a zone change to F -2, Forest Use, the subject property's comprehensive plan map designation will remain Forest. The subject property has three overlay zones: (1) nearly the entire parcel is in the Landscape Management ( "LM ") combining zone; and the entire parcel is in the Wildlife Area ( "WA ") combining zone, specifically the Deer Migration corridor. C. Site Description: The subject property is approximately 98.68 acres. A detailed site description of the property is contained in the Tract C Land Conveyance Environmental Assessment (the "EA ") prepared by the USFS as part of the "Project Documents" for the Tract C Lands and incorporated by reference herein. The subject property is Parcel "B" of Tract C, also known as the "Vandevert Parcel." The subject property is located in the southwest part of the Vandevert Parcel, south of Vandevert Road. Like all of Tract C, the subject property is isolated from other National Forest Lands by U.S. Highway 97, the Burlington Northern -Sante Fe (BNSF) railroad tracks, destination resorts, and rural residential properties. The EA explains that the Vandevert Parcel's location is a factor in its loss of National Forest character: "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 more difficult to manage, especially as increased unauthorized and inappropriate uses by people occur." ZC -08 -7 2 D. Surrounding Zoning and Land Uses: North: Parcel "A" of the Tract C Lands lies to the north of the subject property across Vandevert Road. In the Pine Forest Decision (ZC- 06 -3), the County approved a zone change of that 617 -acre property from F -1 to F -2. To its west, the Pine Forest Property adjoins the recently approved Caldera Springs Resort. Caldera Springs is a 390 -acre destination resort that is zoned F -2 and includes 370 individual ownerships. To the west of Caldera Springs is the Crosswater destination resort, which consists of 60 acres of F -2 zoned land and includes 120 separate ownerships. Further to the north is Sunriver Business Park, an 85 -acre development including 120 individually owned commercial uses. North of that is Sunriver, a 3,300 -acre unincorporated community on land zoned Urban Unincorporated Community (UUC) and developed with 4,100 separate ownerships, two golf courses, an airport, marina, clubhouse, and commercial centers with a variety of commercial uses. South: To the south of the subject property is a strip of property zoned Rural Residential (RR -10), and further south is property zoned F -2. East: To the east of the subject property along Blue Eagle Road is approximately 200 acres of rural residential development, including the Pine River Estates and Vandevert Acres subdivisions. Pine River Estates contains 32 lots, each of which consists of a little more than an acre, and Vandevert Acres, which adjoins Pine River Estates to the south, contains 30 residential lots that range from approximately 1 acre to a little more than 2 acres. Further east is Parcel "C" of the Vandevert Parcel, which is approximately 180 acres of vacant forest land zoned F -1. The owner of that parcel recently has received approval for a zone change from F -1 to F -2 (ZC- 08 -4). The BNSF railroad tracks lay to the east of Parcel C, and, to the east of the tracks, lays U.S. Highway 97 and its 230 - foot -wide right of way. Beyond that is tens of thousands of acres of USFS land that is zoned F -1. West: To the west of the subject property is South Century Drive, and west of that is the Vandevert Ranch Phase I, an F -2 zoned subdivision with rural residential development. Further to the west is the Little Deschutes River. E. Proposal: The applicant requests approval of a zone change from F -1 to F -2 for the subject property. F. 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 Road Department, Property Address Coordinator, Senior Transportation Planner; the La Pine Fire Department, and USFS. These comments are included in the record by reference. The following agencies did not respond to the notice: Watermaster, DLSD, ODOT, Deschutes County Forester, and the USFS. G. 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 ZC -08 -7 3 with a notice of proposed land use action sign. No public response has been received as of the writing of this Staff Report. H. Lot of Record: In file number PA- 08- 2/ZC- 08- 2/MA -08 -8, the Hearings Officer found that a property with a similar history of federal conveyance was not a lot of record since it was not created by a partition or subdivision, and was not exempt from the county's land division requirements, since the federal preemption terminated when the property was conveyed to the present landowner. Given the similar federal conveyance history of the subject property, the Staff believes that the Lot of Record status of the subject property is not a lot of record as defined in DCC 18.04.030. However, in file number PA- 08- 2/ZC- 08- 2/MA -08 -8, the Hearings Officer found the provisions of Chapter 18.136 governing zone changes do not use the terms "lot" and "parcel," and do not require that land be a lot of record in order to be rezoned. Therefore, the Staff believes that the subject property is not a lot of record, but that the subject property need not be a Lot of Record in order to be rezoned because no approval criteria require that status. 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 C and Parcel B, 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 B 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 ZC -08 -7 4 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." 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 ZC -08 -7 5 owner on a county form and accompanied by the required application fee. This zone change application has been 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 the Pine Forest Decision the Hearings Officer 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 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 Hearings Officer in the Pine Forest Decision 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 ZC -08 -7 6 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 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 ZC -08 -7 7 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). The Hearings Officer in the Pine Forest Decision 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 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." DCC Section 23.92.030 codifies the forest land policies adopted in 1992. In the Pine Forest Decision, the Hearings Officer 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 ZC -08 -7 8 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 deciding whether to rezone the F -1 zoned land in the Pine Forest Decision to F- 2, the Hearings Officer 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 Hearings Officer 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 of ownerships not developed by residences or non - forest uses. a. Consist predominantly of ownerships developed for residential or other non - forest 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 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 99 acres of land in contiguous ownership. Like the prior consideration, this policy is written based on "ownerships." The properties that adjoin the eastern 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 western boundary of the subject property abuts South Century Drive, and to the west of that is an F -2 zoned subdivision. Land to the south of the subject property is zoned RR -10 and F -2. 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. ZC -08 -7 9 The property abuts an acknowledged rural residential exceptions area to the east. This area contains three rural residential subdivisions. The subject property abuts South Century Drive to the west. To the south of the subject property is a strip of property zoned Rural Residential (RR -10), and further south is property zoned F -2. Thus, the majority of the property abuts either rural residential uses in an acknowledged exceptions area or roads used to access rural residential properties 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 abuts two designated rural collector roads: South Century Drive on the west and Vandevert Road on the north. Those roads are neither "arterial roads" nor "roads intended primarily for forest management" as contemplated for "unimpacted" forest lands. Rather, both South Century Drive and Vandevert Road provide direct service to surrounding rural residential areas such as Caldera Springs, Crosswater, Sunriver, Vandevert Ranch, Blue Eagle, and numerous other rural residential subdivisions. Additionally, Vandevert Road connects directly to U.S. Highway 97, and South Century Drive is the primary north -south road for local traffic. The northern section of Blue Eagle Road abutting a portion of the subject property's eastern boundary and connecting to Vandevert Road is a public road. Blue Eagle Road is used primarily for access to the rural residences in the Vandevert Acres, Vandevert Acres South, and Pine River Estates subdivisions. Thus, access to the subject property is via roads that are characteristic of F -2 zoned Iand.Furthermore, the level of public facilities and services other than roads on surrounding properties is characteristic of F -2 zoned land. Moreover, the subject property is already service -ready by Midstate Electric Cooperative, US West telephone, and Chamber Cable. This characteristic weighs in favor of F -2 zoning. e. Primarily under forest management. FINDINGS: This is a characteristic of F -1 zoned lands only. As discussed in the Pine Forest Decision, if the property is not presently primarily under forest management, this weighs in favor of F -2 rather than F -1 zoning. In the Pine Forest Decision, the Hearings Officer 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 Pine Forest Decision. 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 ZC -08 -7 10 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 forest management and has therefore been conveyed out of federal ownership into private ownership. The owners of the subject property are not managing it for forest production. The owner has asserted that it would not be prudent for the 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 the Pine Forest Decision, the Hearings Officer 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 cost effective to manage as federal forest land and because the characteristics described in Policies 3 and 4 weigh in favor of F -2 zoning, the applicant asserts that 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. ZC -08 -7 11 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 the Pine Forest Decision, the Hearings Officer 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." The Hearings Officer in the Pine Forest Decision 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 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 Hearings Officer 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 the Pine Forest Decision, the Hearings Officer 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. ZC -08 -7 12 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: There is a change in circumstances that justifies approval of the requested rezone. The changes in circumstances since the property was zoned F -1 are: 1. The Bend Pine Nursery Land Conveyance Act of November 22, 2000. This Act, as discussed in the EA, "gives the Forest Service authority to sell or exchange these [specific National Forest] lands and retain the funds for the acquisition of new administrative facilities for the Deschutes National Forest." Please see page 3 of the EA. 2. Cumulative impacts on the subject property from continued growth in this area of the county as discussed below and as described in the EA. Page 7 of the EA describes the change in circumstances on the subject property that has resulted in a Toss of National Forest character of the property and difficulty effectively managing the property as National Forest land. In the Pine Forest Decision, the Hearings Officer 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 the Pine Forest Decision, the Hearings Officer 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 ZC -08 -7 13 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 the Pine Forest Decision], 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 subject property in this application is part of the "Tract C Land Conveyance" properties and has many of the same characteristics as the property in the Pine Forest Decision. 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 Tots in these subdivisions. 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 ZC -08 -7 14 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 Pine Forest Decision, 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 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. Staff believes that the Board's analysis of the TPR controls this proposal because the uses allowed in the F -2 Zone are identical to those allowed in the F -1 Zone. Consequently, Applicant's proposal does not "significantly affect" a transportation facility. 2. Division 15, State -Wide Planning Goals and Guidelines ZC -08 -7 15 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 the Pine Forest Decision, the Hearings Officer 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." 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. 1 E.g., Hap Taylor (ZC- 04 -5); Yurdin (ZC- 04 -1). ZC -08 -7 16 E Community Development Department Planning Division Building Safety Division Environmental Health Division March 10, 2009 117 NW Lafayette Avenue Bend Oregon 97701 -1925 (541)388 -6575 FAX (541)385 -1764 http : / /www.co.deschutes.or.us /cdd/ MEMORANDUM To: Deschutes Board of County Commissioners From: Will Groves, Senior Planner Subject: A de novo hearing on the Vandervert Road, LLC's proposed zone change from Forest Use (F -1) to Forest Use (F -2) for an approximately 98 -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 February 25, 2006. 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 December 22, 2008. The 150 -day clock will expire on May 21, 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. Staff notes that this application is nearly identical in findings to two previous zone change approvals issued by the Board. Each of these properties, including the subject property, was conveyed by the Forest Service into private ownership. In each case, the private owner has requested a zone change from Forest Use (F -1) to Forest Use (F -2). ZC -06 -3 concerned property immediately north of the subject property. ZC -08 -4 concerned property east of the subject property. 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 March 30, 2009. Please feel free to contact me with any questions or concerns. PRELIMINARY STATEMENT FOR A QUASI - JUDICIAL PUBLIC HEARING BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS I. INTRODUCTION A. This is a quasi - judicial hearing on an appeal of the hearing officer's approval of a proposed zone change from Forest Use (F -1) to Forest Use (F -2). The County File Number is ZC -08 -7 B. In those applications, the applicant requested The applicant requests approval of a zone change from F -1 to F -2 for the subject property. C. The Board takes notice of the record below and includes that record as part of the record before us. II. BURDEN OF PROOF AND APPLICABLE CRITERIA A. The applicants have the burden of proving that they are entitled to the proposal sought. B. The standards applicable to the application before us are listed in the Hearings Officer decision. Copies are available on the table near the door. C. Testimony and evidence at this hearing must be directed toward the criteria, as well as toward any other criteria in the comprehensive land use plan of the County or land use regulations which any person believes apply to this decision. D. Failure on the part of any person to raise an issue with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue. Additionally, failure of the applicant to raise constitutional or other issues relating to the approval with sufficient specificity to allow the Board to respond to the issue precludes an action for damages in circuit court. 1 III. HEARINGS PROCEDURE A. Evidence to be reviewed by the Board. The Board's decision on this application will be based upon the record before the Hearings Officer, the Hearings Officer's decision, the Staff Report and the testimony and evidence presented at this hearing. IV. ORDER OF PRESENTATION A. The hearing will be conducted in the following order. 1. The staff will give a report. 2. The applicant will then have an opportunity to offer testimony and evidence. 3. Proponents of the proposal then the opponents will then be given a chance to testify and present evidence. 4. The applicants will then be allowed to present rebuttal testimony but may not present new evidence. 5. At the Board's discretion, if the applicants presented new evidence on rebuttal, opponents may be recognized for a rebuttal presentation. 6. At the conclusion of this hearing, the staff will be afforded an opportunity to make any closing comments. 7. The Board may limit the time period for presentations. B. If anyone wishes to ask a question of a witness, the person may direct the question to the Chair during that person's testimony, or, if the person has already testified, after all other witnesses have testified but before the Applicant's rebuttal. The Chair is free to decide whether or not to ask such questions of the witness. C. Continuances 1. The grant of a continuance or record extension shall be at the discretion of the Board. 2. If the Board grants a continuance, it shall continue the public hearing to a date certain. 3. If, at the conclusion of the hearing, the Board leaves the record open for additional written evidence or testimony, the record shall be left open to a 2 date certain for submittal of new written evidence or testimony and at least seven additional days for response to the evidence received while the record was held open. Written evidence or testimony submitted during the period the record is held open shall be limited to evidence or testimony that rebuts previously submitted evidence or testimony. 4. If the hearing is continued or the record left open, the applicant shall also be allowed a period to a date certain after the record is closed to all other parties to submit final written arguments but no new evidence in support of the application. V. PRE - HEARING CONTACTS, BIASES, CONFLICTS OF INTERESTS A. Do any of the Commissioners have any ex -parte contacts, prior hearing observations; biases; or conflicts of interest to declare? If so, please state their nature and extent. B. Does any party wish to challenge any Commissioner based on ex -parte contacts, biases or conflicts of interest? (Hearing no challenges, I shall proceed.) (Staff Report) 3 DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBER: APPLICANT/ PROPERTY OWNER: APPLICANT' S ATTORNEY: REQUEST: STAFF REVIEWER: HEARING DATE/ RECORD CLOSED: ZC -08 -7 Vandervert Road, LLC 18565 Soledad Canyon Road, Suite 300 Santa Clarita, California 91351 Tamara E. MacLeod Karnopp Petersen, LLP 1201 N.W. Wall Street, Suite 300 Bend, Oregon 97701 The applicant requests approval of a zone change from F -1 to F -2 for an approximately 98.68 -acre parcel located west of Highway 97 and south of Sunriver. Will Groves, Senior Planner January 27, 2009 I. APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.136, Amendments B. C. * 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 1. OAR 660 -012 -0060, Plan and Land Use Regulation Amendments 2. OAR 660 - 015 -0000, Statewide Planning Goals Vandervert Road, LLC ZC -08 -7 Page 1 of 19 II. FINDINGS OF FACT: A. Location: The subject property is located approximately 18 miles southwest of Bend and 4 miles southwest of Sunriver. It abuts Vandervert Road on the north, South Century Drive on the west, a portion of Blue Eagle Road at the subject property's northeast corner, and privately -owned land to the south. The subject property is further identified as Tax Lot 105 on Deschutes County Assessor's Maps 20 -11 -00 and 20- 11 -20. 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 property also has two overlay zones: (1) Landscape Management Combining (LM) Zones on the eastern portion of the property due to its proximity to Highway 97 and in the property's southwest corner due to its proximity to the Little Deschutes River; and (2) Wildlife Area Combining (WA) Zone over the entire property protecting deer wintering and/or migration areas. C. Site Description: The subject property is approximately 98.68 acres in size,l irregular in shape, undeveloped, and vegetated with ponderosa and lodgepole pine trees and native brush and grasses. The property is known as Parcel B 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 separated from other USFS lands in the Deschutes National Forest by other privately -owned land, including Parcels A and C of Tract C, as well as the BNSF railroad tracks, Highway 97, and destination resort and other residential developments. D. Surrounding Zoning and Land Uses: Land to the north across Vandervert 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). The Deschutes County Board of Commissioners (board) approved this zone change on September 5, 2007 by Ordinance No. 2007 -022.2 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 Rural Residential (RR -10) and developed with residential subdivisions. Land further to the south is zoned F -2 and is owned and managed by the USFS. 1 The record indicates the USFS described the subject property, Parcel B of Tract C, as having 104 acres. 2 A copy of the Hearings Officer's decision and Ordinance No. 2007 -022 are included in the record as Exhibit L to the applicant's burden of proof. Vandervert Road, LLC ZC -08 -7 Page 2 of 19 Land to the east along Blue Eagle Road is zoned RR -10 and consists of approximately 200 acres developed with rural residential subdivisions including Pine River Estates with 32 lots and Vandervert Acres with 30 lots. Further to the east of Blue Eagle Road is land consisting of Parcel C of Tract C. On November 25, 2008 this Hearings Officer issued a decision approving a zone change from F -1 to F -2 for this parcel (Belveron, ZC- 08 -4). As of the date the record in this matter closed approval of this zone change was pending before the board. Further to the east of Parcel C are the Burlington Northern-Santa Fe (BNSF) railroad right -of -way and tracks, Highway 97, large tracts of USFS land zoned F- 1, and a strip of land owned and managed by Gas Transmission Northwest Corporation and developed with an interstate underground natural gas transmission line, compressor building, control building and garage. Land to the west across South Century Drive is land zoned F -2 and developed with Vandervert Ranch Phase 1, a rural residential subdivision. Further to the west is the Little Deschutes River. Further to the west and northwest is the Crosswater destination resort. E. Procedural History: The USFS conveyed the subject property to the applicant by a quitclaim deed dated February 20, 2008, pursuant to the Bend Pine Nursery Land Conveyance Act of 2000 (Public Law 106 -526, November 22, 2000). The applicant submitted the subject zone change application on November 21, 2008. The application was deemed complete on December 22, 2008. Therefore, the 150 -day period for issuance of a final local land use decision under ORS 215.427 expires on May 21, 2009. A public hearing on the application was held on January 27, 2009. 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 January 27, 2009. 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. The applicant did not file a development application in conjunction with this application. However, the apparent 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 Road Department, Property Address Coordinator, and Senior Transportation Planner; the La Pine Fire Department; and the USFS. These comments are included in the record and are incorporated herein by reference. The following agencies did not respond to the request for comments: the Deschutes County Forester; the Oregon Department of Transportation; the Oregon Division of State Lands; and the Oregon Department of Water Resources, Watermaster- District 11. 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 Vandervert Road, LLC ZC -08 -7 Page 3of19 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. Lot of Record: In this Hearings Officer's decision in Belveron, I found there is nothing in the Deschutes County Code that establishes as a prerequisite for rezoning that the subject property is a lot of record as defined in Section 18.04.030. I adhere to that holding here, and find the subject property's lot -of- record status is not relevant to this application.3 III. CONCLUSIONS OF LAW: A. Historical Background: FINDINGS: As discussed above, in 2000 the U.S. Congress enacted the 2000 Bend Pine Nursery Land Conveyance Act which authorized the Deschutes National Forest to exchange or transfer into private ownership lands identified as no longer suitable for USFS management. This 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 separately - described parcels: Parcel A, Parcel B — the subject property -- and Parcel C. 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, 3 In Belveron, the Hearings Officer went on to find that the property was lawfully created at the time it was conveyed from the USFS to the applicant, but that it did not constitute a legal lot of record because it was not created by any of the methods listed in the lot -of- record definition in Section 18.04.030. Vandervert Road, LLC ZC -08 -7 Page 4of19 and includes the following findings in support of her decision that Tract C should be transferred 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 Vandervert Road, LLC ZC -08 -7 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 decisions in Pine Forest (ZC -06 -3) and Belveron (ZC- 08-4) approving zone changes from F -1 to F -2 for Parcels A and C 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 and Belveron decisions I made the following relevant findings, adopted by the Deschutes County Board of Commissioners (board) in their decision approving the Pine Forest zone change: Vandervert Road, LLC ZC -08 -7 Page 6of19 "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 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 Vandervert Road, LLC ZC -08 -7 Page 7of19 county's plan statements, goals and policies are not intended to establish approval standards for quasi-judicial land use permit applications. In Bothman v. City of Eugene, 51 Or LUBA 426 (2006), LUBA found it appropriate also to review the language of specific plan policies to determine whether and to what extent they may in fact establish decisional standards. The policies at issue in that case included those ranging from aspirational statements to planning directives to the city to policies with language providing `guidance for decision - making' with respect to specific rezoning proposals. In Bothman LUBA concluded the planning commission erred in not considering in a zone change proceeding a plan policy requiring the city to `[r]ecognize the existing general office and commercial uses located * * * [in the geographic area including the subject property] and discourage future rezonings of these properties. ' LUBA held that: * * even where a plan provision might not constitute an independently applicable mandatory approval criterion, it may nonetheless represent a relevant and necessary consideration that must be reviewed and balanced with other relevant considerations, pursuant to ordinance provisions that require * * * consistency with applicable plan provisions. '(Emphasis added.) The county's comprehensive plan includes a large number of goals and policies. The applicant's burden of proof addresses goals for rural development, economy, transportation, public facilities, recreation, energy, natural hazards, destination resorts, open spaces, fish and wildlife, and forest lands. The Hearings Officer finds these goals are aspirational in nature and therefore are not intended to create decision standards for the proposed zone change. " The Hearings Officer 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 and Belveron decisions I also made the following relevant findings, adopted by the board in its Pine Forest 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 Vandervert Road, LLC ZC -08 -7 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 H and I 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 and Belveron decisions 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 Pine Forest 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 Vandervert Road, LLC ZC -08 -7 Page 9of19 forest lands for forest use the County shall identify and zone as F -2 those lands which have the following characteristics: * * *. FINDINGS: In this Hearings Officer's Pine Forest and Belveron decisions 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 Pine Forest 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 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 98.68 acres of land in a contiguous single ownership. This policy also is written in terms of "ownerships." The properties that adjoin the western, eastern and southern boundaries 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. Parcels A and C of Tract C, located to the north and east of the subject property, respectively, are zoned F -2. In addition, lands further to the north and northwest are zoned F -2, some of which are developed as destination resorts with small lots. Only a small part of the subject property adjoins other forest -zoned 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 Vandervert Road, LLC ZC -08 -7 Page 10 of 19 above. The subject property abuts an acknowledged rural residential exceptions area to the south and east that is developed with three rural residential subdivisions with hundreds of lots. No part of the subject property abuts USFS forest land. The property abuts Vandervert Road on the north and South Century Drive on the west. Consequently, the majority of the subject property abuts either rural residential uses in an acknowledged exceptions area or roads used to provide access to thee rural residential properties, 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 subject property is accessed by two rural collector roads (Vandervert Road and South Century Drive) and one rural local road (Blue Eagle Road), all of which are used primarily for access to rural residential subdivisions, forest recreational uses, and resort developments. 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 Vandervert Road and along Blue Eagle Road, and an overhead power line running north -south along the western portion of the adjacent Parcel C of Tract C. 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 owner of the subject property are not managing it for forest production. In this Hearings Officer's Pine Forest and Belveron decisions 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 Pine Forest decision, and set froth the relevant definitions at page 14 of that 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 no longer is 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 and Belveron decisions 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. Vandervert Road, LLC ZC -08 -7 Page 11 of 19 In this Hearings Officer's Pine Forest and Belveron decisions I found that not all of the characteristics of 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 in its Pine Forest decision 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 adhered to the board's Pine Forest findings in my Belveron decision and I do so again here. I find the applicant's proposed zone change from F -1 to F -2 will not have any effect on the conservation of forest lands. Vandervert Road, LLC ZC -08 -7 Page 12 of 19 C. That changing the zoning will presently serve the public health, safety and welfare considering the following factors: FINDINGS: In the Hearings Officer's Pine Forest and Belveron decisions I 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 applicant argues the subject property's F -1 zoning was a mistake because the USFS's findings justifying transferring Tract C into private ownership shows the property is not suitable for forestry. The Hearings Officer disagrees. As discussed in the findings above, the record indicates the county originally zoned all USFS land F -1 without considering soils or capabilities of individual tracts. I find this zoning decision was not a mistake based on the Vandervert Road, LLC ZC -08 -7 Page 13 of 19 information available to the county when the subject property was zoned F -1. 2. Change of Circumstances. The USFS environmental assessment for Tract C and the subject property — Parcel B -- 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 Officer's Pine Forest and Belveron decisions, 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 Vandervert 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 Vandervert Road, LLC ZC -08 -7 Page 14 of 19 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. 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 and Belveron properties. In fact, it appears that due to its location the subject property is more impacted than either Parcel A or Parcel C of Tract C. That is because the subject property abuts rural residential subdivisions on three sides 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) 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: Vandervert Road, LLC ZC -08 -7 Page 15 of 19 (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. In his December 18, 2008 comments on the applicant's proposal, the county's senior transportation planner Peter Russell stated he had no comments on the applicant's proposal but recommended that the county ask ODOT for comments in light of the subject property's Vandervert Road, LLC ZC -08 -7 Page 16of19 proximity to the Highway 97/Vandervert Road intersection. In his December 8, 2008 comments on the applicant's proposal, County Engineer George Kolb stated he had reviewed the applicant's proposal and would have no comments unless and until the filing of an application for a particular use on the subject property For the foregoing reasons, the Hearings Officer finds the applicant's proposal is consistent with the TPR. 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 and Belveron decisions 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. Vandervert Road, LLC ZC -08 -7 Page 17 of 19 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 Forest on the comprehensive plan map. 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. Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. Although the subject property is considered 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 it will not change the uses permitted under the current zoning designation and will not alter its resource qualities and characteristics. 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 the county. Inasmuch as the proposed zone change would not change the subject property's Forest 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 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. Goal 13, Energy Conservation. The Hearings Officer finds this goal is not relevant to the Vandervert Road, LLC ZC -08 -7 Page 18of19 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 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 February, 2008. Mailed this day of February, 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. Vandervert Road, LLC ZC -08 -7 Page 19 of 19