HomeMy WebLinkAboutWhether to Hear Appeal - Stolz01'ESC
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Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of February 6, 2008
DATE: January 24, 2008
FROM: Cynthia Smidt
Community Development Department 317-3150
TITLE OF AGENDA ITEM:
Board consideration whether to hear or not hear an appeal (A-08-2) of a Hearings Officer decision
denying the partition of land based on a Measure 37 claim.
PUBLIC HEARING ON THIS DATE? No.
BACKGROUND AND POLICY IMPLICATIONS:
The 19.82 -acre subject property is located on Harrington Loop Road and is owned by John and
Charlene Stoltz. As a result of waivers of land use regulations from Deschutes County (Order No.
2006-046) and the State of Oregon (Final Order for Claim No. M124485), the Stoltz' requested
approval to divide the 19.82 -acre subject property into three (3) lots and establish a single-family
dwelling on each of the new parcels (file no. MP -07-29). The Hearings Officer denied the partition
request or the request to establish dwellings on each of the new parcels because it was not demonstrated
that there was adequate legal access to the subject property from Harrington Loop Road to either Gist
Road or Highway 20.
The Stoltz' filed an appeal of the Hearings Officer decision on January 22, 2008, and request de novo
review. Due to the time constraints on the 150 -day time line (would expire February 4, 2008) for
processing land use decision, the appellants have extended the clock 60 days, to April 4, 2008.
FISCAL IMPLICATIONS: None
RECOMMENDATION & ACTION REQUESTED:
Staff recommends the Board not hear this appeal because staff believes that the applicant/appellant was
able to present all relevant evidence at the hearing before the Hearings Officer. Staff agrees with the
Hearings Officer's analysis and decision. In addition, staff does not believe the Hearings Officer
decision presents a policy issue.
ATTENDANCE: Cynthia Smidt
DISTRIBUTION OF DOCUMENTS:
John and Charlene Stotlz
5680 Oregon Road
Mt. Hood Parkdale, OR 97041
Legal Counsel
Cynthia Smidt
Community Development Department
Planning Division Building Safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
MEMORANDUM
DATE: January 24, 2008
TO: Board of County Commissioners
FROM: Cynthia Smidt, Associate Planner
RE: Appeal (A-08-2) by Stoltz of Hearings Officer decision denying a 3 -lot land
division and associated single-family dwellings.
BACKGROUND
The 19.82 -acre subject property is located on Harrington Loop Road (no assigned address at this
time) and is further identified on County Assessor tax map 15-11-31 as tax lot 901. It is owned by
John and Charlene Stoltz. The property owners received a waiver of land use regulations from
Deschutes County by Order No. 2006-046 and from the State of Oregon through a Final Order for
Claim No. M124485. The Stoltz requested approval to divide the 19.82 -acre subject property into
three (3) parcels and establish a single-family dwelling on each of the new parcels (file no. MP -07-
29). The proposed parcels are rectangular in shape and would be five (5) and 10 acres each in
size. A 60 -foot wide private access easement running south from Harrington Loop Road would
provide access primarily to Parcel 2 and alternatively to Parcel 1 and 3. Parcel 1 and 3 could also
take access from Harrington Loop Road.
The decision to deny the application is based on the Hearings Officer's findings that the
applicant failed to demonstrate the subject property and proposed parcels would have sufficient
legal access from Harrington Loop Road to Gist Road or Highway 20 as addressed in
Deschutes County Code (DCC) 17.22.020(A)(3) and (A)(6) as well as DCC 17.48.160(B)(1).
See pages 16, 20, and 23 of the attached Hearings Officer's decision. Based on County Road
Department records, the portion of Harrington Loop Road between Highway 20 and Gist Road
is not a dedicated road right-of-way nor is it an established right-of-way. The County Road
Department requested the property owners to dedicate 30 feet of right-of-way along their
property frontage.
The Stoltz filed an appeal of the Hearings Officer decision on January 22, 2008. The appellants
argue that Harrington Loop Road is a public road. The initial public hearing was held or
November 13, 2007. On January 7, 2008, the Hearings Officer issued a decision denying the
land division request. The Stoltz' filed an appeal of the Hearings Officer decision on January
22, 2008, and request de novo review. Due to the time constraints on the 150 -day time line
File No.: A-08-2 (MP -07-29) Page 1 of
Quality Services Performed with Pride
which expires on February 4, 2008, for processing land use decision, the appellants have
extended the clock 60 days, to April 4, 2008
Attached for the Board's review are the Hearings Officer decision, staff report, and survey of the
proposed partition.
APPEAL
The notice of appeal describes relevant background facts and the reasons for appeal. As
detailed in DCC 22.32.020(A), the Board should review the notice of appeal to determine that
it's sufficiently specific so that the Board is able to respond to and resolve each issue in dispute.
If the Board decides to hear the appeal, the review shall be on the record unless the Board,
under its own motion, decides to hear the appeal de novo (DCC 22.32.027(6)(1) and (3)). As
noted above, the appellants have requested a de novo hearing. Per DCC 22.32.027(6)(4), the
Board, may, at its discretion, determine that it will limit the issues on appeal to those listed in the
notice of appeal, or to one or more specific issues from among those listed on the notice of
appeal.
DECLINING REVIEW
If the Board of County Commissioners decides that the Hearings Officer's decision shall be the
final decision of the County, then the Board shall not hear the appeal and the party appealing
may continue the appeal as provided by law. The decision on the land use application becomes
final upon the mailing of the Board's decision to decline review. As indicated in DCC
22.32.035(B) and (D), in determining whether to hear an appeal, the Board may consider only:
1) The record developed before the Hearings Officer;
2) The notice of appeal; and
3) Recommendations of staff.
STAFF RECOMMENDATION
Staff recommends the Board not hear this appeal because staff believes that the
applicant/appellant was able to present all relevant evidence at the hearing before the Hearings
Officer. Staff agrees with the Hearings Officer's analysis and decision. In addition, staff does
not believe the Hearings Officer decision presents a policy issue.
SCHEDULE
This item is scheduled for the Board's regular meeting on February 6, 2008. Please feel free to
contact me at your convenience with any questions or concerns.
File No.: A-08-2 (MP -07-29) Page 2 o`2
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JAN -16-2008 03:43P FROM:
TO:15413851764 P.2
Community Development Department
Planning Division
117 NW Lafayette Avenue. Bend, OR 57701-1825
(541 ) 3856575 - Fax (541) 385.1764
htsp://www deachutee.org/cdd
APPEAL APPLICATION
FEE: $ 2010"
EVERY NOTICE OF APPEAL SHALL INCLUDE:
1. A statement describing the specific reasons for the appeal.
2. If the Board of County Commissioners Is the Hearings Body, a request for review by the Board stating
the reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request
for de novo review by the Board, stating the reasons the Board should provide the de novo review as
provided in Section 22.32.027 of Title 22.
It Is the msponslblUty of the Appellant to complete a Notice of Appeal as set forth In Chapter 22.32 of the County
Code. The Notice of Appeal on the reverse side of this form must Include the Items listed above. Failure to complete
all of the above may render an appeal Invalid Any additional comments should be Included on the Notice of Appeal.
Appellant's Name (print): To In h f Cfit 11+- 1- 4� 'kT' JPhone: (5 /() ?go D — 2.22 C
Mailing Address: C4986, qOVejDVt City/State/Zip: Mt 14654j (X 976W
Land Use Application Being Appealed: M P — b -7 — 2. f'
Property Description: Township (S Range 1( Section 3 / T L t `i 6 (
Appellant's Signature:
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EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE
TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNE'RC TAPES PROVIDED BY THE
PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD).
APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE
CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR
ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS.
(over)
1/07
TAN -16-2008 04:54P FROM:
Notice of Appeal
TO:15413851764 P.3
We are appealing the denial of our partition application (MP -07-29) because of the Hearings Officer claim
that we do not have legal access to use the Harington Loop Rd. from our property to either Gist Rd. or
Hwy 20.
Therefore, we are requesting that the Board of County Commissioners a de novo review the lower
decision by the Hearings Officer and overturn the denial of partition application MP -07-29.
Harrington Loop is listed on the Deschutes County database as a county road. Deschutes County has
been maintaining Harrington Loop Rd. across and in front of our property for many years.
Mr. Kolb of the Deschutes County Road Department discusses the need to dedicate 30 feet of right-of-
way from the section along our property frontage. We readily agreed to this request.
There is a church across from our property that brings in many Harrington Loop road users on a regular
basis. This means that Harrington Loop has been de facto used as a public road for many years. Thus
public access has been allowed from either Gist Road or Hwy 20. This is further substantiated by the
continuous maintenance by Deschutes County of the road over the years. See CU9915 for access to
Harrington Loop provided by permit process from County Road Department
Also, our neighbors, the Hunts, identified on Map 1511 31, lot 900, bought a similar parcel of land just to
the east of us. That parcel was available to us at the same time we bought our parcel, lot 901 in 1968.
They have been allowed to build a house and use Harrington Loop as their major access road, so we
should have the same identical rights. Consequently, this implies that this section of Harrington Loop has
previously been determined to be a public road. See CU -05-47 which declares Harrington Loop as a
County road and the access permit SW7556 officially granting access.
When we originally bought the property in 1968, the records did not show that Harrington Loop was a
private road. No restrictions on our warranty deed were placed to indicate that Harrington Loop was
private. There was a small access driveway from Harrington Loop when we first bought the property.
This implies use of the Harrington Loop road even before we bought It.
Finally, we have been traveling to the property at least once a year and sometime several times a year
since we have purchased the property. We have driven onto property from both Hwy 20 and Gist Rd
many times.
We would like to request that the fee for this appeal be waived because of a small perceived technicality
found by the Hearings Officer.
The applicant is willing to extend the 150 -day time line by another 60 days to allow adequate review of
the new information not contained in the original record.
22 January, 2008
Community Development Department
Planning Division Building Safety Division Environmental Health Division
k. .._{_. { { `
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/+:dd/
DESCHUTES COUNTY PLANNING DIVISION
STAFF REPORT
FILE NUMBER: MP -07-29
HEARING DATE:
Tuesday, November 13, 2007, 6:30 p.m.
Barnes and Sawyer Rooms, Deschutes Services Center
1300 NW Wall Street
Bend, Oregon 97701
APPLICANT/OWNER: John and Charlene Stoltz
5680 Oregon Road
Mt. Hood Parkdale, Oregon 97041
REQUEST:
The applicant is requesting a Minor Partition for a land division to
divide an approximate 19.82 -acre parcel into three parcels in the
Exclusive Farm Use — Tumalo/Redmond/Bend subzone, and to
place a single-family dwelling on each of the three new parcels.
The minimum lot size under sections 18.16.055, 18.16.060 and
18.16.065 has been waived by the Deschutes County Board of
County Commissioners through Order No. 2006-046.
The State of Oregon waived the state restrictions on parcel
sizes and the establishment of one dwelling on the resulting
undeveloped parcel under Statewide Planning Goal No. 3,
ORS 215, and OAR 660, Division 33, none of which were in
effect on March 15, 1968.
STAFF CONTACT: Cynthia Smidt, Associate Planner
I. APPLICABLE CRITERIA:
Title 18 of the Deschutes County Code, the County Zoning Ordinance:
A. Chapter 18.16, Exclusive Farm Use Zone
Quality Services Performed with Pride
B.
1. Section
farmland
2. Section
3. Section
4. Section
5. Section
6. Section
Chapter 18.
1. Section
2. Section
18.16.030, Conditional uses permitted — high value and nonhigh value
18.16.050, Standards for dwellings in the EFU zones
18.16.055, Land divisions
18.16.060, Dimensional standards
18.16.065, Subzones
18.16.070, Yards
84, Landscape Management Combing Zone
18.84.020. Application of provisions.
18.84.050. Use Limitations.
Title 17 of the Deschutes County Code, Partitions.
A.
B.
C.
D.
Chapter 17.22, Approval of Tentative Plans for Partitions
1. Section 17.22.020. Requirements for approval.
2. Section 17.22.030. Improvement requirements.
Chapter 17.36, Design Standards
1. Section 17.36.020. Streets.
2. Section 17.36.040. Existing Streets.
3. Section 17.36.160. Easements.
4. Section 17.36.170. Lots -Size and shape.
5. Section 17.36.180. Frontage.
6. Section 17.36.210. Solar access performance.
7. Section 17.36.260. Fire Hazards
8. Section 17.36.290. Individual wells.
Chapter 17.44, Park Development
Chapter 17.48, Design and Construction Specifications
1. Section 17.48.160. Road development requirements — Standards.
2. Section 17.48.170. Road development requirements — Partitions.
3. Section 17.48.180. Private Roads.
II. BASIC FINDINGS:
A. LOCATION: The subject property is identified on Deschutes County Assessor's map
15-11-31 as tax lot 901. A street address had not been assigned to the subject property
at the time of this report.
B. LOT OF RECORD: Tax lot 901 was conveyed in a Contract of Sale on March 15, 1968.
A Warranty Deed was later recorded with the Deschutes County Clerk's Office (Volume
198, Page 409) on August 15, 1973. At the time the 1968 contract was executed, there
were no requirements for land partitions nor were there any used to regulate zoning and
minimum lot sizes. Based on these findings, Deschutes County recognizes tax lot 901
as a legal lot of record.
C. ZONING: The property is zoned Exclusive Farm Use (EFU) — TumalofRedmond/Bend
subzone. The property is also within the Landscape Management (LM) Combining
zone. This property is designated Agriculture on the Deschutes County Comprehensive
Plan.
MP -07-29 — Stoltz Page 2
D. SITE DESCRIPTION: The subject property is approximately 19.82 acres with relatively
level terrain. The site is sparsely vegetated with juniper trees, native shrubs, and bunch
grasses. The property does not contain water rights. According to the Flood Insurance
Rate Map (FIRM) for Deschutes County and the National Wetlands Inventory,
respectively, the subject property is not located in the 100 -year flood plain and contains
no wetlands. The property is currently undeveloped. These were verified by site visit on
October 25, 2007.
E. SURROUNDING LAND USES: The area surrounding the subject property consists of
vacant lands, rural residences, and agricultural uses. Surrounding the property to the
west, east, and south are small farm parcels, developed or vacant, zoned Exclusive
Farm Use. Harrington Loop Road borders the property along the north boundary.
Beyond Harrington Loop Road are rural residential parcels, developed or vacant, zoned
Multiple Use Agricultural. Further to the north, west, and east are additional small sized
rural residential properties zoned Multiple Use Agricultural. A majority of these
properties are developed with residential uses. Zoning in the area is a mixture of
Exclusive Farm Use (EFU-TRB), Multiple Use Agricultural (MUA10), and Flood Plain
(FP).
F. PROPOSAL: The applicant proposes to divide the approximate 20 -acre parcel into
three parcels: Parcels 1 and 2 will be approximately five (5) acres each and Parcel 3 will
be 10 acres.' The intended use of the parcels is for single-family dwellings. A private
road easement is proposed to travel from Harrington Loop Road south, down the middle
of the property and end in "an adequate fire truck turnaround" or cul-de-sac. The private
road will separate Parcels 1 and 2, both oriented along the western boundary, from
Parcel 3 which will be oriented along the eastern boundary. As illustrated on the
submitted tentative partition plan, the proposed three parcels are rectangular in shape
with Parcel 1 (5 acres) located along the western boundary, at the corner of Harrington
Loop Road and the proposed private road. Parcel 2 (5 acres) is located south of Parcel
1 and along the western boundary, at the end of the private road. Parcel 3 (10 acres)
will be located along the eastern boundary, also at the corner of Harrington Loop Road
and the private road. The applicants propose dual access, taken from the private road
and from Harrington Loop Road, to Parcels 1 and 3, while Parcel 2 will only have access
from the private road. Water will be provided to each new parcel by a private individual
well. Each parcel will be served by an on-site septic system. The applicant has not
applied for a Conditional Use permit for a nonfarm dwelling on each of the resulting
parcels, based on the waiver granted by the County (Order No. 2006-046 mentioned
above).
G. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several
agencies and received the following comments:
1. Deschutes County Environmental Health Division: No records [exist for the
property]. Each proposed lot much have an approved site evaluation.
1 The County Assessor's records indicate the subject property is 19.82 acres. However, based on the
submitted application and the property description recorded on the deeds and for ease of reporting lot sizes
in this report, staff will refer to the parent parcel as 20 acres with the proposed parcels being 5 acres each for
Parcel 1 and 2 and 10 acres for Parcel 3.
MP -07-29 — Stoltz Page 3
2. Deschutes County Road Department: George Kolb, County Engineer, provided the
following comments:
Background information:
• Harrington Loop Road is a County Road with a paved surface from Gist Road to
Peterson Ridge Road and is maintained by Deschutes County. This portion of
Harrington Loop was legalized by the County in 2006.
• The portion of Harrington Loop from Highway 20 to Gist Road is a gravel road
that is maintained by Deschutes County on a limited basis. There is no record of
right-of-way dedication or establishment of right-of-way on this portion of
Harrington Loop therefore the applicant will be required to dedicate 30 feet of
right-of-way from the section along their property frontage.
The applicant is to meet the following conditions if this land use application is
approved:
1. All easements of record or existing rights -of -ways shall be noted on the final
mylar.
2. The applicant shall dedicate 30 feet of right-of-way from the section line along
their property frontage for Harrington Loop Road.
3. The surveyor or engineer submitting the plat shall submit information showing the
location of the existing road in relationship to the road right-of-way, on behalf of
the applicant to the County Road Department. This information can be submitted
on a worksheet and does not necessarily have to be on the final plat. All existing
road facilities and new road improvements are to be located within legally
established or dedicated right-of-ways. In no case shall a road improvement be
located outside of a dedicated road right-of-way. If research reveals that
inadequate right-of-way exists or that the existing roadway is outside of the
legally established or dedicated right-of-way, additional right-of-way will be
dedicated as directed by the Deschutes County Road Department to meet
current County standards.
Staff Comment: Planning staff inquired with Mr. Kolb regarding the impact on
Harrington Loop Road as a result of the three additional homes being proposed.
George Kolb, issued a response dated October 25, 2007. Mr. Kolb's comments are
below:
I don't think it will burden that portion of Harrington Loop. One thing I did overlook is
that they are accessing one of the parcels on an easement versus a public right-of-
way. If I remember the code right, Parcel No. 2 will either have to be a flag lot or the
60 foot road and utility easement would have to be dedicated and built to the
standards for a partition.
3. Deschutes County Property Address Coordinator: If this application is approved, the
applicants shall contact the Property Address Coordinator for new addresses.
4. Deschutes County Transportation Planner: Planning staff inquired with Peter
Russell, County Transportation Planner regarding the impact on Harrington Loop
MP -07-29 — Stoltz Page 4
Road as a result of the three additional homes being proposed. Mr. Russell issued a
response dated October 24, 2007. Mr. Russell's comments are below:
On a traffic analysis standpoint, this won't be a burden on Harrington Loop Road. I'm
not wild about the Harrington Loop/20 intersection, which is likely where the bulk of
those 30 trips would end up, but the trip rate falls below what our traffic requirements
would need to trigger a traffic study.
5. The following aaencies did not respond or had no comments: Cloverdale Fire
Department, Cascade Natural Gas, Central Electric Cooperative, Deschutes County
Assessor, Deschutes County Transportation Planner, Deschutes County Surveyor,
Oregon Department of Land Conservation and Development (DLCD), Pacific Power
and Light, Qwest, and Watermaster — District 11.
H. PUBLIC COMMENTS: The Planning Division sent notice of this proposal to all property
owners within 750 feet of the subject property. No written comments were received.
The applicant has also complied with the posted notice requirements of Section
22.23.030 (B) of Title 22. The applicant has submitted a Land Use Action Sign Affidavit
dated October 31, 2007 that indicates that the applicant posted notice of the land use
action on October 31, 2007.
I. REVIEW PERIOD: The application was submitted to the Planning Division on August 6,
2007. The Planning Division deemed this application complete and accepted it for
review on September 6, 2007. Notification of the public hearing was posted in the Bend
Bulletin Newspaper on October 15, 2007. As of the date of the public hearing for this
matter, November 13, 2007, staff estimates that 82 days will remain on the 150 -day
review clock for this land use application.
J. BALLOT MEASURE 37: The property owner has received approval of a waiver of land
use regulations from Deschutes County, which is listed under Board of County
Commissioners Order No. 2006-046, signed by the Board on April 5, 2006 and recorded
with the County Clerk on April 7, 2006. Section 2 on page 2 of this Order states the
following:
The Board hereby elects to not apply nonexempt County land use regulations, to
the subject property described in Exhibit "B" in lieu of payment of just
compensation under Ballot Measure 37. Claimants are hereby authorized to use
the subject property as permitted at the time they acquired the. Claimants may
apply for a use of the subject property consistent with the zoning and regulations
in effect at the time they acquired the property. That land use shall be permitted if
the subject property fully complies with all regulations in effect on March [15],
1968. The Community Development Director is hereby authorized to determine
the effects that any other non-exempt regulations in effect on this date would have
on Claimants' proposed development differently than current non-exempt
regulations. However, the current procedural regulations for land division and
development applications and approval, including, but not limited to setbacks,
access, height, and landscaping requirements shall be applied.
Staff finds that the applicant purchased the subject property prior to the adoption of the
following two land use regulations in the County. Staff is not aware of any previous land
MP -07-29 — Stoltz Page 5
use regulations which would be applicable to the applicant's property prior to the
purchase of the subject property.
• Deschutes County Comprehensive Plan adopted by the Deschutes County
Board of Commissioners on June 17, 1970 by Resolution No. 1 signed on this
same June 17, 1970 date.
• Subdivision Ordinance No. PL -2, passed and adopted by the Deschutes County
Board of Commissioners on September 9, 1970.
Additionally, the applicant received approval of a waiver from the State of Oregon
through a Final Order for Claim No. M124485, signed by the Director of the State of
Oregon Department of Land Conservation and Development and the Administrator,
DAS, State Services Division on September 11, 2006, waiving the State's regulations to
March 15, 1968. The waiver from the State documents the following:
1. In lieu of compensation under ORS 197.352, the State of Oregon will not apply
the following laws to John and Charlene Stoltz's division of the 19.82 -acre
property into eight parcels or to their development of a dwelling on each
parcel: applicable provisions of Goal 3, ORS 215 and OAR 660, division 33.
These land use regulations will not apply to the claimants only to the extent
necessary to allow them to use the subject property for the use described in
this report, and only to the extent that use was permitted when they acquired
the property on March 15, 1968.
2. The action by the State of Oregon provides the state's authorization to the
claimants to use the subject property for the use described in this report,
subject to the standards in effect on March 15, 1968.
3. To the extent that any law, order, deed, agreement or other legally enforceable
public or private requirement provides that the subject property may not be
used without a permit, license or other form of authorization or consent, the
order will not authorize the use of the property unless the claimants first
obtain that permit, license or other form of authorization or consent. Such
requirement may include, but are not limited to: a building permit, land use
decision, a "permit" as defined in ORS 215.402 or 227.160, other permits or
authorizations from local, state or federal agencies and restrictions on the use
of the subject property imposed by private parties.
4. Any use of the subject property by the claimants under the terms of the order
will remain subject to the following laws: (a) those laws not specified in (1)
above; (b) any laws enacted or enforced by a public entity other than the
Commission or the department; and (c) those laws not subject to ORS 197.352
including, without limitation, those laws exempted under ORS 197.352(3).
5. Without limiting the generality of the foregoing terms and conditions, in order
for the claimants to use the subject property, it may be necessary for them to
obtain a decision under ORS 197.352 from a city and/or county and/or
metropolitan service district that enforces land use regulations applicable to
the property. Nothing in this order relieves the claimants from the necessity of
obtaining a decision under ORS 197.352 from a local public entity that has
jurisdiction to enforce a land use regulation applicable to a use of the subject
property by the claimants.
MP -07-29 — Stoltz Page 6
III. CONCLUSIONS OF LAW:
In the Arnett decision (County file TP -06-977), the Board of County Commissioners found
the threshold questions following the property owner's Measure 37 waivers are:
1. What if any land use regulations applied to the subject property on March 15, 1968;
2. What if any current non-exempt land use regulations apply to the proposed partition
because they would not have the effect of reducing the value of the subject property,
and does the proposed partition comply with applicable current non-exempt
regulations;
3. What if any current exempt land use regulations apply to the proposed partition, and
does the proposed partition comply with the current exempt regulations identified as
applicable?
These questions are addressed in the findings below.
1. What If Any Land Use Regulations Were In Effect as of March 15, 1968?
FINDING: The record indicates that there were no applicable land use regulations
regarding the partition of land within Deschutes County on March 15, 1968.
2. What If Any Current Non-exempt and Exempt Land Use Regulations Apply to
the Proposed Partition?
FINDING: Based on the Arnett decision, staff believes that the provisions of Titles
17 and 18, subdivision and partition ordinance and the zoning ordinance,
respectively, of the Deschutes County Code, apply to the applicant's proposal to the
extent application of these provisions does not result in a reduction in the value of
the subject property or to the extent they are exempt under Measure 37. As
discussed in detail in this report, staff finds that with three exceptions the provisions
of Title 18 governing development of EFU-zoned land do not apply to the proposed
partition because they would reduce the value of the subject property and therefore
were waived by the county's Measure 37 order or they are exempt regulations
dealing with health and safety. However, staff believes the provisions of Title 17 do
apply to the proposed partition because either they do not reduce the subject
property's value or they are exempt from Measure 37. Compliance with those
provisions is discussed in the findings below.
3. Does the Applicant's Proposed Partition Comply With the Regulations
Identified as Applicable in 1968?
FINDINGS: The record does not include a copy of the provisions of ORS Chapter 92
in effect on March 15, 1968 when the Stoltz's purchased the property. Staff was not
able to obtain or view a copy of these statutes. However, in the Arnett decision, the
Board found that given the subject matter covered by the current provisions of ORS
Chapter 92, the Board believed it is unlikely the version in effect in March of 1968
included any provisions either establishing minimum lot sizes or prohibiting
partitioning of the subject property. Staff believes the same applies here.
MP -07-29 - Stoltz Page 7
4. Does the Applicant's Proposed Partition Comply with the current Exempt and
Non-exempt Regulations Identified as Applicable?
FINDING: The proposed partition's compliance with applicable current federal, state
and county land use regulations is discussed in detail in the findings below.
IV. CONCLUSIONARY FINDINGS:
Title 18 of the Deschutes County Code, County Zoning.
A. CHAPTER 18.16, EXCLUSIVE FARM USE ZONE
1. Section 18.16.025. Uses permitted subject to the special provisions under DCC
18.16.038...
A. Dwellings customarily provided in conjunction with farm use (farm -related
dwellings).
2. Section 18.16.030. Conditional uses permitted — High value and nonhigh value
farmland.
The following uses may be allowed in the Exclusive Farm Use zones on either
high value or nonhigh value farmland subject to applicable provisions of the
Comprehensive Plan, DCC 18.16.040 and 18.16.050, and other applicable
sections of DCC Title 18.
A. Nonfarm dwelling and accessory uses thereto.
B. Lot of record dwelling.
FINDING: The proposal consists of partitioning one 20 -acre parcel into three
parcels, two being 5 acres and one being 10 acres. The applicants have been
granted a waiver from the non-exempt County land use regulations adopted after
January 1, 1970 which resulted in a reduction of property value. Zoning regulations
were absent from County codes prior to 1970. Consequently, any dwellings on the
proposed parcel would not be considered farm, nonfarm or lot of record dwellings,
and a land use permit is not required for such a dwelling. County records indicate
that there is no conditional use permit or administrative determination being reviewed
for a dwelling on the resulting parcels.
3. Section 18.16.050. Standards for dwellings in the EFU zones.
Dwellings listed in DCC 18.16.025 and 18.16.030 may be allowed under the
conditions set forth below for each kind of dwelling, and all dwellings are
subject to the landowner for the property upon which the dwelling is placed,
signing and recording in the deed records for the County, a document binding
the landowner, and the landowner's successors in interest, prohibiting them
from pursuing a claim for relief or cause of action alleging injury from farming
or forest practices for which no action or claim is allowed under ORS 93.396 or
30.397.
MP -07-29 — Stoltz Page 8
FINDING: Staff believes this criterion of requiring the signing of the document that
prohibits landowners of the proposed parcels from pursuing a claim for relief or
cause of action alleging injury from farm or forest practices would be considered a
non-exempt regulation. However, staff also believes that recording this waiver does
not reduce property values for the proposed parcels because there is no evidence to
suggest that the recordation of such waivers results in the reduction of property
value. In County decision MP -05-21, the Hearings Officer concludes that this
standard was not waived under the BM37 orders. Staff recommends any approval
be conditioned to this effect.
4. Section 18.16.070. Yards.
A. The front yard shall be 40 feet from a property line fronting on a local
street, 60 feet from a property line fronting on a collector and 100 feet from
a property line fronting on an arterial.
B. Each side yard shall be a minimum of 25 feet, except that for nonfarm
dwelling proposed on parcels or lots with side yards adjacent to a property
currently employed in farm use, the side yard shall be a minimum of 100
feet.
C. Rear yards shall be a minimum of 25 feet, except that for nonfarm dwellings
proposed on parcels or lots with rear yards adjacent to a property currently
employed in farm use, the rear yard shall be a minimum of 100 feet.
D. In addition to the setbacks set forth herein, any greater setbacks required
by applicable building or structural codes adopted by the State of Oregon
and/or the County under DCC 15.04 shall be met.
FINDING: Staff believes that current standard setbacks apply since there is no
evidence to suggest that the required minimum setbacks result in a reduction of
property value. Staff notes however, that since the dwellings on these proposed
parcels would not be considered nonfarm parcels, the 100 -foot setback required for
nonfarm dwellings adjacent to farm use would not apply. Agricultural practices within
on mile of the subject property include mostly small-scale farm uses consisting of
livestock grazing and hay production. Most of these small-scale farm uses occur on
properties that have dwellings and thus serve primarily as rural residences; these
parcels are not devoted entirely to farm use. The only two properties abutting the
subject property that are currently engaged in farm use and receiving farm deferral is
one to the west and one to the south (tax lot 1000 and 707, respectively, of tax map
15-11-31). Furthermore, in County file TP-07-977/MA-06-21, the Hearings Officer
found that the 100 -foot setback was not an exempt regulation based on the fact that
there was evidence presented that showed no health and safety issues in that
specific situation. The applicant indicates that the proposed dwellings on the
resulting parcels will meet minimum required setbacks. Staff recommends it be made
a condition of any approval that the proposed dwellings comply with setback
standards (front setback of 40 feet, rear setback of 25 feet, and side setback of 25
feet) of the EFU zone and the solar setback standards of 18.116.180(6)(1). This
compliance can be checked at the time of building permit application.
5. Section 18.16.055. Land Divisions.
6. Section 18.16.060. Dimensional standards.
7. Section 18.16.065. Subzones.
MP -07-29 — Stoltz Page 9
FINDING: The minimum lot size under the above listed sections has been waived by
the Deschutes County Board of County Commissioners through Order No. 2006-046.
The waiver states the applicants "may apply for a use of the subject property
consistent with the zoning and regulations in effect at the time they acquired the
property" March 15, 1968. Except for the frontage standards of 18.16.060(D) and
the building height restriction of 18.16.060(E), Staff believes that the criteria and
standards listed under these three sections do not apply to the proposed parcels.
This should be confirmed or denied by the Hearings Officer.
B. CHAPTER 18.84, LANDSCAPE MANAGEMENT COMBINING ZONE
1. Section 18.84.020. Application of provisions.
The provisions of this chapter shall apply to all areas within one-fourth mile of
roads identified as landscape management corridors in the Comprehensive
Plan and the County Zoning Map. The provisions of this chapter shall also
apply to all areas within the boundaries of a State scenic waterway or Federal
wild and scenic river corridor and all areas within 660 feet of rivers and
streams otherwise identified a landscape management corridors in the
comprehensive plan and the County Zoning Map. The distance specified
above shall be measured horizontally from the center line of designated
landscape management roadways or from the nearest ordinary high water
mark of a designated landscape management river or stream. The limitation in
this section shall not unduly restrict accepted agricultural practices.
2. Section 18.84.050. Use Limitations.
A. Any new structure or substantial alteration of a structure requiring a
building permit, or an agricultural structure, within an LM Zone shall obtain
site plan approval in accordance with DCC 18.84 prior to construction. As
used in DCC 18.84 substantial alteration consists of an alteration which
exceeds 25 percent in the size or 25 percent of the assessed value of the
structure.
FINDING: Gist Road and Highway 20 are identified on the County Zoning Map as
the landscape management features in the area. The subject property fall just
outside of the Gist Road LM zoning. However, a majority of the property falls within
the landscape management combining zone of Highway 20. The applicant is
proposing a 3 -parcel land division with a single-family dwelling on each new parcel.
All of Parcel 1 and a majority of Parcel 3 fall within the LM zone. Only a small portion
(northeast corner) of Parcel 2 falls within the LM zone. Section 2 on page 2 of this
County Waiver states that the "...current procedural regulations for land division and
development applications and approval, including, but not limited to setbacks,
access, height, and landscaping requirements shall be applied." Staff believes that
the landscaping requirements include the LM zoning requirements. The purpose of
the Landscape Management (LM) Combining zone is "to maintain scenic and natural
resources of the designated areas and to maintain and enhance scenic vistas and
natural landscapes as seen from designated roads, rivers or streams." Furthermore,
the record does not suggest that these requirements result in a reduction in property
value. Staff believes these requirements enhance property values. If this request is
approved at the time an application for development of this property is submitted,
MP -07-29 — Stoltz Page 10
staff recommends that the applicant be required to apply for a Landscape
Management review. This should be confirmed or denied by the Hearings Officer.
Title 17 of the Deschutes County Code, the Subdivision Ordinance
In general, the County believes that the requirements of Title 17 are appropriate in such
decisions related to land divisions based on Ballot Measure 37 waivers because there is no
evidence to suggest that these requirements result in a reduction in property value. In
addition, as described in section 17.04.020(A), the purpose of the Title 17 regulations is to
"... promote the public health, safety and general welfare." Therefore, staff's opinion is that
Title 17 may be exempt from Ballot Measure 37 (BM37).
A. CHAPTER 17.22, APPROVAL OF TENTATIVE PLANS FOR PARTITIONS
1. Section 17.22.020. Requirements for approval.
A. No application for partition shall be approved unless the following
requirements are met:
1. Proposal is in compliance with Oregon Revised Statutes chapter 92, the
applicable comprehensive plan and applicable zoning ordinance. A
proposed partition is not in compliance with the zoning ordinance if it
would conflict with the terms of a previously issued approval for a land
use on the property or would otherwise create a nonconforming use on
any of the newly described parcels with respect to an existing structure
or use;
FINDING: The proposed partition will be in compliance with ORS Chapter 92 if it is
in conformance with applicable criteria of Title 17 and Title 18 of the County Code.
The County waiver of land use regulations (Order No. 2006-046) allows the subject
property to be divided into three parcels as shown on the tentative plan. The
property is currently undeveloped and there is no previous land use approval with
which the partition proposal would conflict or that would create a nonconforming use.
Evidently, the proposal would be in compliance with the comprehensive plan and
zoning ordinance as a result of the waiver issued by the Board of County
Commissioners. Staff is unclear as to whether approval of this partition, and the
siting of the proposed dwellings on the resulting parcels, would result in a
nonconforming use.
2. Proposal does not conflict with existing public access easements within
or adjacent to the partition;
FINDING: An October 10, 2005 Preliminary Title Report submitted with the
application does not identify an easement within or adjacent to the partition.
3. The partition is accessed either by roads dedicated to the public or by
way of United States Forest Service or Bureau of Land Management
roads where applicant has submitted a written agreement with the
appropriate land management agency providing for permanent legal
access to the parcels and any required maintenance. This provision
shall not be subject to variance;
MP -07-29 — Stoltz Page 11
FINDING: The applicant is proposing a three lot partition with a private road
easement connecting to Harrington Loop Road. As indicated in the County Road
Department's comments, the portion of Harrington Loop Road, from Highway 20 to
Gist Road, has "no record of right-of-way dedication or establishment of right-of-
way." Based on this information, staff recommends that the applicant dedicate "30 -
feet of right-of-way from the section line along their property frontage for Harrington
Loop Road." Continuing, the applicant indicates that the proposed private road
easement branching off of Harrington Loop Road will have a road right-of-way width
of 60 feet and will conform to County private road standards. There is no evidence in
the record to indicate that the proposed road is intended to be publicly dedicated.
However, the applicant proposes Parcels 1 and 3 will have dual access from
Harrington Loop Road, a public road, and the private road and Parcel 2 will have
access from the private road only. The above criterion requires partitions to be
accessed by roads dedicated to the public or by way of U.S. Forest Service (USFS)
or Bureau of Land Management (BLM) roads. The applicant does not propose to
use USFS or BLM roads and County records do not indicate the presence of such
roads in the vicinity. Further, according to DCC 17.36.020, streets in subdivisions
and partitions shall be dedicated to the public "unless located in a destination resort,
planned community or planned or cluster development." The applicant does not
propose a destination resort, planned community, planned or cluster developments
as defined in DCC 18.040.030. For this reason, the County Road Department
recommended that the applicant be required to dedicate the proposed private road.
In County decision MP -07-3, the Hearings Officer found that the proposed land
division would be prohibited because of the application of this requirement, thus
reducing the property value. The Hearings Officer continues to state, "Adequate
access contemplates both legal and physical access. In other words, if the applicant
does not demonstrate there is legal access to the proposed partition parcels he also
cannot demonstrate this access would be available to emergency vehicles."
However, the Hearings Officer concludes that through documentation of a recorded
vehicular access easement, adequate legal access to the partition parcels can be
guaranteed. Based on these findings by the Hearings Officer, staff believes that the
same would apply with this proposal. This should be confirmed or denied by the
Hearing's Officer.
4. An access permit can be obtained from either the County Public Works
Department, the City Public Works Department or the State Highway
Division;
FINDING: Any new access to Harrington Loop Road will require an access permit.
Based on the previous finding, staff finds that no permit is required for access off the
proposed private road easement. Staff recommends it be made a condition of any
approval that the applicant obtain an access permit for access taken from Harrington
Loop Road.
5. Each parcel is suited for the use intended or offered, considering the
size of the parcels, natural hazards, topography and access;
FINDING: The intended use of the proposed parcels is residential. The parcel sizes
are suitable to site a dwelling and meet the minimum yard setbacks. The property is
relatively level and there are no topographic concerns or natural hazards for the
MP -07-29 — Stoltz Page 12
property. Access will be from Harrington Loop Road and a proposed private road as
discussed above in this report.
6. All required utilities, public services and facilities are available and
adequate and are proposed to be provided by the petitioner;
FINDING: The applicant submitted the following information to demonstrate that
public services and utilities are adequate:
Electricity The applicant indicates that a letter will be obtained from the local
electrical company indicating electric service will be provided. However, no letter
has been submitted into the record. Staff solicited comments from Central Electric
Cooperative and Pacific Power and Light. Pacific Power and Light did acknowledged
the proposal and return comments stating "No comment."
Road access. Access to the proposed parcels will be from Harrington Loop Road or
by the proposed private road. As indicated in a foregoing finding of this report, staff
recommends that the Hearings Officer confirm or deny the permission of a recorded
vehicular access easement as adequate legal access to the partition parcels.
Furthermore, staff believes that the applicant should be required to construct the
private road easement to the standards set forth in DCC 17.48.180, Private Roads.
Telephone. The record indicates that the properties will be served by Qwest
Communications; however, no letter from Qwest has been submitted by the
applicant. Staff solicited comments from Qwest but no response was received.
Domestic water. The applicant indicates that each of the new parcels will be
provided with individual wells and on-site septic systems.
Fire protection. According to County records, the subject property is located in the
Cloverdale Rural Fire Protection District.
Police protection. Deschutes County Sheriff.
Based on these findings and the applicant's ability to conform to the conditions of
approval specified above, staff believes the proposal can meet this criterion.
7. A water rights division plan, reviewed and approved by the appropriate
irrigation district or the watermaster's office, if water rights are
associated with the subject property;
FINDING: The applicant states and County records confirm that there are no water
rights associated with the subject property nor is the property within an irrigation
district. Staff solicited comments from the watermaster's office but did not receive a
response.
8. For partitions or portions thereof within one-half mile of SM zones, the
applicant shows that a noise or dust sensitive use, as defined in Title 18
of the Deschutes County Code, can be sited consistent with the
requirements of chapter 78.56 of Title 18, as demonstrated by the site
MP -07-29 — Stoltz Page 13
plan and accompanying information required to be submitted under
section 17.28.010(C) of this chapter.
FINDING: The subject property is not within one-half mile of any SM zone.
Therefore, this criterion does not apply.
B. If the Planning Director determines that the proposed partition constitutes
series partitioning, or if series partitioning has occurred in the past, then
the Planning Director may refer the application to the hearings officer for a
determination as to whether the application should be subject to the
requirements of DCC 17.36.300, Public Water Supply System, and DCC
17.48.160, Road Development Requirements for Subdivisions.
FINDING: The parent parcel was created in 1968 upon the purchase of the property
by the applicants. At that time, there were no subdivision or minimum lot size
regulations in place in the County. The proposed partition will be the first division
since this time. Therefore, staff believes this land division proposal is not considered
a series partition.
2. Section 17.22.030. Improvement requirements.
In the approval of a land partition, the County shall consider the need for street
and other improvements, and may require as a condition of approval any
improvements that may be required for a subdivision under the provisions of
DCC Title 17. All roads in partitions shall be dedicated to the public without
reservation or restriction, except where private roads are allowed by the
applicable zoning regulations, such as in planned or cluster developments.
FINDING: The County Road Department requests that existing and proposed road
facilities be located within a dedicated road right-of-way. The Road Department
further indicates that the section of Harrington Loop Road adjacent to the subject
property is not a dedicated or established road right-of-way; therefore, it is requested
that the applicant dedicate "30 -feet of right-of-way from the section line along their
property frontage for Harrington Loop Road." The property width is 660.76 feet and
with a road depth of 30 feet this would equate to 19,823 square foot of road
dedication for Harrington Loop Road. Based on the previous findings in this report,
staff believes the proposed private road be considered as adequate legal access and
be constructed to County road standards for private roads. This should be confirmed
or denied by the Hearing's Officer.
B. CHAPTER 17.36, DESIGN STANDARDS
1. Section 17.36.020. Streets.
A. The location, width and grade of streets shall be considered in their
relation to existing and planned streets, topographical conditions, public
convenience and safety, and the proposed use of land to be served by the
streets. The street system shall assure an adequate traffic circulation
system for all modes of transportation, including pedestrians, bicycles and
automobiles, with intersection angles, grades, tangents and curves
appropriate for the traffic to be carried, considering the terrain. The
MP -07-29 — Stoltz Page 14
subdivision or partition shall provide for the continuation of the principal
streets existing in the adjoining subdivision or partition or of their property
projection when adjoining property which is not subdivided, and such
streets shall be of a width not less than the minimum requirements for
streets set forth in DCC 17.36.
C. Streets in partitions shall be dedicated to the public.
FINDING: The applicant is proposing a three lot partition with a 60 -foot wide private
road connecting to Harrington Loop Road. Further, the applicant indicates that the
road will be constructed to County private road standards. Staff believes if the
applicant meets these conditions, compliance with criterion 'A' above can be met.
Moreover, as addressed in foregoing findings, staff recommends the Hearings
Officer make it a condition of approval that the applicant dedicates to the public the
existing and proposed road facilities. Further, staff recommends the applicant
comply with road standards and specifications set forth in DCC 17.48.
2. Section 17.36.040. Existing Streets.
Whenever existing streets, adjacent to or within a tract, are of inadequate
width to accommodate the increase in traffic expected from the subdivision or
partition or by the county roadway network plan, additional rights of way shall
be provided at the time of the land division by the applicant. During
consideration of the tentative plan for the subdivision or partition, the Planning
Director or Hearings Body, together with the Public Works Director, shall
determine whether improvements to existing streets adjacent to or within the
tract, are required. If so determined, such improvements shall be required as a
condition of approval for the tentative plan. Improvements to adjacent streets
shall be required where traffic on such streets will be directly affected by the
proposed subdivision or partition.
FINDING: According to the Trio Generation2, the additional three (3) dwellings on
the property will generate approximately 10 vehicle trips per day per dwelling which
equates to 30 vehicle trips per day. Based on the County Road Department and the
County Transportation Planner's e-mail response, the additional 30 trips per day will
not burden Harrington Loop Road in that area. Staff recommends the Hearings
Officer make it a condition of approval that the applicant dedicates to the public the
existing road facilities of Harrington Loop Road. Based on this information, staff
believes the proposed improvements would adequately accommodate the increased
traffic.
3. Section 17.36.160. Easements.
A. Utility Easements. Easements shall be provided along property lines when
necessary for the placement of overhead or underground utilities, and to
provide the subdivision or partition with electric power, communication
facilities, street lighting, sewer lines, water lines, gas lines or drainage.
2 Institute of Transportation Engineers. (1997). Trip Generation 61i' Edition Volume 1 of 3. Washington DC:
Institute of Transportation Engineers.
MP -07-29 — Stoltz Page 15
Such easements shall be labeled "Public Utility Easement" on the tentative
and final plat; they shall be at least 12 feet in width and centered on lot
lines where possible, except utility pole guyline easements along the rear
of lots or parcels adjacent to unsubdivided land may be reduced to 10 feet
in width.
FINDING: An October 10, 2005 Preliminary Title Report submitted with the
application does not identify easements on the subject property. The submitted
tentative plan illustrates a proposed utility easement together with the proposed
private road easement. The applicant will need to verify with the utility companies
whether any utility easements will be necessary for the partition, and all utility and
vehicular access easements should be shown on the final mylar.
4. Section 17.36.170. Lots -Size and shape.
The size, width and orientation of lots or parcels shall be appropriate for the
location of the land division and for the type of development and use
contemplated, and shall be consistent with the lot or parcel size provisions of
Titles 18 through 21 of this code:
A. In areas not to be served by a public sewer, minimum lot and parcel sizes
shall permit compliance with the requirements of the Department of
Environmental Quality and the County Sanitarian, and shall be sufficient to
permit adequate sewage disposal. Any problems posed by soil structure
and water table and related to sewage disposal by septic tank shall be
addressed and resolved in the applicant's initial plan.
FINDING: The submitted tentative plan illustrates the proposed partition will result in
three parcels, rectangular in shape, and 5, 5, and 10 acres in size. County records
show there is no septic system on-site. The County Environmental Health Division
requests that each proposed parcel have an approved site evaluation prior to final
approval. Staff recommends that the applicant obtain an on-site septic feasibility
determination for each new parcel prior to final plat approval. According to National
Wetlands Inventory, the subject property does not contain wetlands. The USDA
Natural Resources Conservation Service (NRCS) map of the area shows one soil
mapping unit found on the subject property. This mapping unit is 98A, Plainview
Sandy Loam and is typically used for livestock grazing or irrigated cropland. The
proposed residential development is not located in areas that are irrigated. Based on
the waiver granted by the County, Staff believes the size, width, and orientation of
the proposed parcels are consistent with the EFU zone and are appropriate for the
location of the land division and the residential uses contemplated.
5. Section 17.36.180. Frontage.
A. Each lot or parcel shall abut upon a public road for at least 50 feet, except
for lots or parcels fronting on the bulb of a cul-de-sac, then the minimum
frontage shall be 30 feet, and except for partitions off of U.S. Forest Service
or Bureau of Land Management roads....
B. All side lot lines shall be at right angles to street lines or radial to curved
streets wherever practical.
MP -07-29 — Stoltz Page 16
FINDING: Based on the County Road Department's comments regarding Harrington
Loop Road, each parcel created through the partition will not abut upon a public
road. However, as discussed previously in this report, staff recommends that the
applicant dedicate to the public the existing road facilities of Harrington Loop Road.
Moreover, in County decision MP -07-3, the Hearings Officer found that not only did
the County BM37 waiver invalidate the public road access requirement of Title 17 but
also the public road frontage requirements. This should be confirmed or denied by
the Hearings Officer.
6. Section 17.36.210. Solar access performance.
A. As much solar access as feasible shall be provided each lot or parcel in
every new subdivision or partition, considering topography, development
pattern and existing vegetation. The lot lines of lots or parcels, as far as
feasible, shall be oriented to provide solar access at ground level at the
southern building line two hours before and after the solar zenith from
September 22nd to March 21st. If it is not feasible to provide solar access
to the southern building line, then solar access, if feasible, shall be
provided at 10 feet above ground level at the southern building line two
hours before and after the solar zenith from September 22nd to March 21st,
and three hours before and after the solar zenith from March 22nd to
September 21st.
FINDING: The proposed partition will create a two 5 -acre and one 10 -acre parcel,
rectangular -shaped, and with north lot line orientation that would activate solar
setback standards of Title 18. Staff believes these proposed parcels sizes are
sufficient to provide adequate solar access for any structures built on these parcels.
7. Section 17.36.260. Fire Hazards
Whenever possible, a minimum of two points of access to the subdivision or
partition shall be provided to provide assured access for emergency vehicles
and ease resident evacuation.
FINDING: The proposed partition will have its primary access from Harrington Loop
Road to the north. Through a proposed roadway, access to the proposed parcels
will travel south from Harrington Loop Road to the parcels. Access to Harrington
Loop Road can be taken from Gist Road to the west and Highway 20 to the east.
Staff believes that the proposal satisfies this criterion.
8. Section 17.36.290. Individual wells.
In any subdivision or partition where individual wells are proposed, the
applicant shall provide documentation of the depth and quantity of potable
water available from a minimum of two wells within one mile of the proposed
land division. Notwithstanding section 17.36.300, individual wells for
subdivisions are allowed when parcels are larger than 10 acres.
FINDING: The applicant submitted a well log report for two nearby properties
indicating the depth of the completed wells between 330 and 395 feet. Staff believes
this criterion is satisfied.
MP -07-29 - Stoltz Page 17
C. CHAPTER 17.44, PARK DEVELOPMENT
FINDING: Deschutes County Code 17.44 addresses the dedication of land for parks, or the
permission of paying a fee in lieu of a dedication. However, DCC 17.44 also exempts
property from the parks development requirement if the subject property is within either the
Central Oregon Park and Recreation District or the Bend Metro Park and Recreation
District. The subject property is within the Central Oregon Park District's boundaries, and is
thus exempt from the parks dedication or fee in lieu of dedication.
D. CHAPTER 17.48, DESIGN AND CONSTRUCTION SPECIFICATIONS
1. Section 17.48.160. Road development requirements — Standards.
B. Improvements of Public Rights of Way.
1. The developer of a subdivision or partition will be required to improve
all public ways that are adjacent or within the land development.
FINDING: As addressed previously in this report, the County Road Department
requests, and staff recommends, that existing and proposed road facilities be located
within a dedicated road right-of-way. The section of Harrington Loop Road abutting
the subject property to the north is not a dedicated or established road right-of-way.
Thus, the Road Department requests that the applicant dedicate the "30 -feet of right-
of-way from the section line along their property frontage for Harrington Loop Road."
This area equates to approximately 19,823 square feet of road right-of-way to be
dedicated to the public. Based on the previous findings in this report, staff believes
the proposed private road be considered as adequate legal access and be
constructed to County road standards for private roads. This should be confirmed or
denied by the Hearing's Officer.
2. Section 17.48.170. Road development requirements — Partitions.
Roadway improvements within a partition and to a road maintained by a public
agency shall be constructed prior to final approval of the partition, depending
on the maximum parcel size as follows:
B. For a parcel size of less than 10 acres, the road standards used shall be the
same as for a subdivision.
FINDING: The submitted tentative plan illustrates the proposed partition will result in
three parcels, two being 5 acres and one being 10 acres in size. As indicated
throughout this report, staff recommends the Hearings Officer make it a condition of
approval that the applicant construct the proposed private road (easement) to the
private road standards and specifications set forth in DCC 17.48.180. This should be
confirmed or denied by the Hearings Officer.
3. Section 17.48.180. Private Roads.
The following minimum road standards shall apply for private roads:
MP -07-29 — Stoltz Page 18
A. The minimum paved roadway width shall be 20 feet in planned unit
developments and cluster developments with two -foot wide gravel
shoulders;
B. Minimum radius of curvature, 50 feet;
C. Maximum grade, 12 percent;
D. At least one road name sign will be provided at each Intersection for each
road;
E. A method for continuing road maintenance acceptable to the County;
F. Private road systems shall include provisions for bicycle and pedestrian
traffic. In cluster and planned developments limited to ten dwelling units, the
bicycle and pedestrian traffic can be accommodated within the 20 -foot wide
road. In other developments, shoulder bikeways shall be a minimum of four
feet wide, paved and striped, with no on -street parking allowed within the
bikeway, and when private roads are developed to a width of less than 28
feet, bike paths constructed to County standards shall be required.
FINDING: The submitted tentative plan illustrates a private road easement with an
approximate width of 60 feet. The applicant also indicates that the road easement
will be constructed to County road standards. Staff recommends any approval be
conditioned to this effect.
V. CONCLUSION AND RECOMMENDATION:
Staff believes that the applicant's submittal meets the applicable requirements of Titles 17
and 18, and the following conditions should be included in any approval:
A. Approval is based upon the submitted plan. Any substantial change to the approved
plan will require a new application.
B. Prior to final plat approval, the applicant/owner shall obtain septic site evaluation
approval for Parcels 1, 2, and 3 from the County Environmental Health Division.
C. The applicant/owner shall have a licensed land surveyor prepare a partition plat which
conforms to Oregon Revised Statutes Chapter 92 and Title 17 of the Deschutes County
Code. The plat shall include the exact sizes for each parcel.
D. The final plat shall include a statement of water rights.
E. All ad valorem taxes, fees and other charges that have become a lien upon the entire
parcel shall be paid. The final plat shall be signed by the County Assessor and County
Treasurer.
F. All easements of record shall be shown on the final plat.
G. The applicant/owner shall execute and record with the Deschutes County Clerk required
access road easement to create the private access for all three partition parcels.
H. The design and construction of the private road shall be in accordance with Section
17.48.180 of the Deschutes County Code.
MP -07-29 — Stoltz Page 19
I. The applicant shall dedicate 30 feet of right-of-way from the section line along the
subject property frontage for Harrington Loop Road (approximately 19,823 square feet of
road right-of-way area).
J. The applicant shall obtain access permits for any new access to Harrington Loop Road
from the County Community Development Department prior to final plat review.
K. Prior to final plat approval, the applicant shall obtain new addresses for each resulting
parcel from the Deschutes County Property Address Coordinator.
I. Prior to final plat approval, the applicant/owner shall sign and record a waiver, binding
the landowner and the landowner's successors in interest, prohibiting them from
pursuing a claim for relief or cause of action alleging injury from farming or forest
practices for which not action or claim is allowed under ORS 30.396 or 30.397.
J. A current Title Report shall be submitted with the final plat application.
K. Building height of the proposed structures will be no more than 30 feet in height from
grade.
L. The applicant shall comply with the setback standards (front setback of 40 feet, rear
setback of 25 feet, and side setback of 25 feet) of the EFU zone and the solar setback
standards of DCC 18.116.180(B).
M. Prior to issuance of the building permit for the dwelling, the applicant shall apply for and
received approval of a Landscape Management site plan review for the dwelling.
N. The applicant shall site and shield all exterior lighting, including security lighting, so that
it is directed downward and is not directly visible from Highway 20. In addition, all
exterior lighting must comply with the Deschutes County Covered Outdoor Lighting
Ordinance per Sections 15.10 of Title 15 of the DCC.
Dated this 1s` day of November, 2007 Mailed this 15' day of November, 2007
MP -07-29 — Stoltz Page 20
DECISION OF DESCHUTES COUNTY EHARINGS 0
FILE NUMBER:
APPLICANTS/
PROPERTY OWNERS:
REQUEST:
STAFF REVIEWER:
HEARING DATE/
RECORD CLOSED:
MP -07-29
John and Charlene Stoltz
5680 Oregon Road
Mt. Hood, Oregon 97041
6.t
JAN 2008
NIntLED
DESCHUTES
1V
The applicants request approval of a minor ` `on to divide a
19.82 -acre parcel zoned EFU-TRB into three parcels, and to place
a single-family dwelling on each new parcel. This application
follows state and county waivers under Measure 37.
Cynthia Smidt, Associate Planner
November 13, 2007
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
B.
1.
Chapter 18.16, Exclusive Farm Use Zone
* Section 18.16.030, Conditional Uses Permitted — High Value and Nonhigh
Value Farmland
* Section 18.16.050, Standards for Dwellings in the EFU Zones
* Section 18.16.055, Land Divisions
* Section 18.16.060, Dimensional Standards
* Section 18.16.065, Subzones
* Section 18.16.070, Yards
2. Chapter 18.84, Landscape Management Combing Zone
* Section 18.84.020, Application of Provisions
* Section 18.84.050, Use Limitations
Title 17 of the Deschutes County Code, the Subdivision/Partition Ordinance
1.
Chapter 17.22, Approval of Tentative Plans for Partitions
* Section 17.22.020, Requirements for Approval
* Section 17.22.030, Improvement Requirements
. Chapter 17.36, Design Standards
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* Section 17.36.020, Streets
* Section 17.36.040, Existing Streets
* Section 17.36.160, Easements
* Section 17.36.170, Lots - Size and Shape
* Section 17.36.180, Frontage
* Section 17.36.210, Solar Access Performance
* Section 17.36.260, Fire Hazards
* Section 17.36.290, Individual Wells
4. Chapter 17.44, Park Development
* Section 17.44.010, Dedication
* Section 17.44.020, Fee in Lieu of Dedication
5. Chapter 17.48, Design and Construction Specifications
* Section 17.48.160, Road Development Requirements — Standards
* Section 17.48.170, Road Development Requirements — Partitions
* Section 17.48.180, Private Roads
II. FINDINGS OF FACT:
A. Location: The subject property does not have an assigned address. It is identified as Tax
Lot 901 on Deschutes County Assessor's map 15-11-31.
B. Zoning and Plan Designation: The subject property is zoned Exclusive Farm Use-
Tumalo/Bend/Redmond Subzone (EFU-TRB), and Landscape Management (LM)
Combining Zone because of its proximity to Highway 20 and Gist Road. It is designated
Agriculture on the Deschutes County Comprehensive Plan map.
C. Site Description: The subject property is approximately 19.82 acres in size, rectangular
in shape, relatively level and undeveloped. Vegetation consists of scattered juniper trees
and a dense cover of native shrubs and grasses. The property has no irrigation water
rights and is not located within the boundaries of an irrigation district. According to the
Flood Insurance Rate Map (FIRM) for Deschutes County and the National Wetlands
Inventory, respectively, the subject property is not located within the 100 -year flood plain
and contains no wetlands.
D. Soils: According to the Natural Resources Conservation Service (NRCS) data in the
record, the subject property is composed of the following soil type:
Soil Unit 98A, Plainview sandy loam, 0 to 3 percent slopes: This soil type consists of
85% Plainview soil and similar inclusions and 15% contrasting inclusions. The Plainview
soils are well drained and have a moderately rapid permeability with an available water
capacity of about 5 inches. The Plainview soils are rated IIIe with irrigation and VIe
without irrigation, and are considered high value soils when irrigated. The major uses of
this soil type are irrigated cropland and livestock grazing.
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E. Surrounding Zoning and Land Uses: Land to the west, east and south is zoned EFU-
TRB and developed with small-scale farms and rural residences. Land to the north across
Harrington Loop is zoned Multiple Use Agriculture (MUA-10) and is developed with
rural residences.
F. Procedural History: The subject application was submitted on August 6, 2007 and
accepted by the county as complete on September 6, 2007. Therefore, the 150 -day period
for issuance of a final local land use decision under ORS 215.477 expires on February 4,
2008. A public hearing on the application was held on November 13, 2007. At the
hearing the Hearings Officer received testimony and evidence and closed the evidentiary
record. The applicants waived their right to submit final argument pursuant to ORS
197.763 and therefore the record closed on November 13, 2007. As of the date of this
decision there remain 28 days in the 150 -day period.
G. Proposal: The applicants request approval to divide the 19.82 -acre subject property into
three parcels and to place a single-family dwelling on each parcel. The parcels would be
rectangular in shape and would have the following sizes: Parcels 1 and 2 would be
approximately five acres in size and Parcel 3 will be approximately 10 acres in size. The
applicants propose access to proposed Parcels 1 and 3 from Harrington Loop as well as
from a proposed 60 -foot -wide private access easement running south from Harrington
Loop down the center of the subject property to the southern property. Proposed Parcel 2
would have access only from the private access easement. The applicants propose an
emergency vehicle turnaround at the southern terminus of the private access easement.
The applicants propose domestic water for each lot from individual private on-site wells,
and sewage disposal from individual on-site septic systems.
H. Public/Private Agency Comments: The Planning Division sent notice of the applicants'
proposal to a number of public and private agencies and received responses from: the
Deschutes County Environmental Health Division, Road Department (road department),
Property Address Coordinator, and Transportation Planner. These comments are set forth
verbatim at pages 3-5 of the staff report. The following agencies did not respond to the
notice or had no comments: the Deschutes County Assessor and Surveyor; the Cloverdale
Rural Fire District (fire district); the Oregon Department of Land Conservation and
Development (DLCD); the Oregon Department of Water Resources, Watermaster-
District 11; Cascade Natural Gas; Central Electric Cooperative; Pacific Power; and
Qwest.
Public Notice and Comments: The Planning Division mailed individual written notice
of the applicants' proposal and the public hearing to the owners of record of all property
located within 750 feet of the subject property. In addition, notice of the public hearing
was published in the Bend "Bulletin" newspaper, and the subject property was posted
with a notice of proposed land use action sign. As of the date the record in this matter
closed, the county had received no public comments in response to these notices. No
members of the public testified at the public hearing.
J. Lot of Record: The staff report states the county recognizes the subject property as a
legal lot of record having been created by a 1968 warranty deed prior to the effective date
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of any partition requirements.
K. Measure 37: The property owners received approval of a waiver of land use regulations
from Deschutes County by Order No. 2006-046, signed by the Deschutes County Board
of Commissioners (board) on April 5, 2006 and recorded with the Deschutes County
Clerk on April 7, 2006. This order provides in pertinent part:
"Section 2. The Board hereby elects to not apply nonexempt County land
use regulations, to the subject property described in Exhibit `B' in lieu of
payment of just compensation under Ballot Measure 37. Claimants are
hereby authorized to use the subject property as permitted at the time they
acquired the. Claimants may apply for a use of the subject property
consistent with the zoning and regulations in effect at the time they
acquired the property. That land use shall be permitted if the subject
property fully complies with all regulations in effect on March [15], 1968.
The Community Development Director is hereby authorized to determine
the effects that any other non-exempt regulations in effect on this date
would have on Claimants ' proposed development differently than current
non-exempt regulations. However, the current procedural regulations for
land division and development applications and approval, including, but
not limited to setbacks, access, height, and landscaping requirements shall
be applied. "
In addition, the property owners received approval of a waiver from the State of Oregon
through a Final Order for Claim No. M124485, signed by the Director of DLCD and the
Administrator of the State Services Division on September 11, 2006. The final order
provides in pertinent part as follows:
"1. In lieu of compensation under ORS 197.352, the State of Oregon
will not apply the following laws to John and Charlene Stoltz's
division of the 19.82 -acre property into eight parcels or to their
development of a dwelling on each parcel: applicable provisions of
Goal 3, ORS 215 and OAR 660, division 33. These land use
regulations will not apply to the claimants only to the extent
necessary to allow them to use the subject property for the use
described in this report, and only to the extent that use was
permitted when they acquired the property on March 15, 1968.
2. The action by the State of Oregon provides the state's
authorization to the claimants to use the subject property for the
use described in this report, subject to the standards in effect on
March 15, 1968.
3. To the extent that any law, order, deed, agreement or other legally
enforceable public or private requirement provides that the subject
property may not be used without a permit, license or other form of
authorization or consent, the order will not authorize the use of the
Stoltz
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property unless the claimants first obtain that permit, license or
other form of authorization or consent. Such requirement may
include, but are not limited to: a building permit, land use
decision, a "permit" as defined in ORS 215.402 or 227.160, other
permits or authorizations from local, state or federal agencies and
restrictions on the use of the subject property imposed by private
parties.
4. Any use of the subject property by the claimants under the terms of
the order will remain subject to the following laws: (a) those laws
not specified in (1) above; (b) any laws enacted or enforced by a
public entity other than the Commission or the department; and (c)
those laws not subject to ORS 197.352 including, without
limitation, those laws exempted under ORS 197.352(3).
5. Without limiting the generality of the foregoing terms and
conditions, in order for the claimants to use the subject property, it
may be necessary for them to obtain a decision under ORS 197.352
from a city and/or county and/or metropolitan service district that
enforces land use regulations applicable to the property. Nothing
in this order relieves the claimants from the necessity of obtaining
a decision under ORS 197.352 from a local public entity that has
jurisdiction to enforce a land use regulation applicable to a use of
the subject property by the claimants."
L. Measure 49: On November 6, 2007 the voters passed Ballot Measure 49. This measure
modifies the compensation and land use regulation waiver provisions of Measure 37, and
took effect on December 6, 2007. Measure 49's impact on the applicant's proposal is
discussed in the findings below.
III. CONCLUSIONS OF LAW:
A. SUMMARY:
The Hearings Officer has found I cannot approve the applicants' proposed three -lot partition or
the establishment of dwellings on each of the new parcels because the applicants have not
demonstrated they have adequate legal access to the subject property from Harrington Loop to
either Gist Road or Highway 20. That is because the record indicates Harrington Loop between
Highway 20 and Gist Road is not dedicated to the public, and the applicants have not
demonstrated they have a legal right of access across Harrington Loop such as a recorded access
easement. However, because I anticipate the applicants will appeal this decision to the board, I
have included in this decision findings on all applicable partition and dwelling approval criteria
to assist planning staff and the board.
B. PRELIMINARY ISSUE:
1. Measure 49
Stoltz
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FINDINGS:
a. Text of Measure. Measure 49 took effect on December 6, 2007. It modifies the provisions of
Measure 37, codified in ORS 197.352, and provides in pertinent part as follows:
Section 2. As used in this section and sections 3 and 5 to 22 of this 2007 Act:
* * *
(10) "High-value farmland" means:
* :F
(c) Land that is in an exclusive farm use zone or a mixed farm and forest
zone and that on the date of adjournment sine die of the 2007 regular
session of the Seventy-fourth Legislative Assembly is:
* * *
(B) Within the boundaries of a district, as defined in ORS 540.505;
* * *. [1]
Section 5. A claimant that filed a claim under ORS 197.352 on or before the date of
adjournment sine die of the 2007 regular session of the Seventy-fourth Legislative
Assembly is entitled to just compensation as provided in:
(1)
* * *
(3)
Section 6 or 7 of this 2007 Act, at the claimant's election, if the property
described in the claim is located entirely outside any urban growth boundary
and entirely outside the boundaries of any city;
A waiver issued before the effective date of this 2007 Act to the extent that
the claimant's use of the property complies with the waiver and the claimant
has a common law vested right on the effective date of this 2007 Act to
complete and continue the use described in the waiver.
Section 6.
(1) A claimant that filed a claim under ORS 197.352 on or before the date of
adjournment sine die of the 2007 regular session of the Seventy-fourth
Legislative Assembly is eligible for three home site approvals on the property
if the requirements of this section and sections 8 and 11 of this 2007 Act are
met. The procedure for obtaining home site approvals under this section is
set forth in Section 8 of this Act.
1 ORS 540.505 defines "district" as "an irrigation district formed under ORS chapter 545."
Stoltz
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(2) The number of lots, parcels or dwellings that may be approved for property
under this section may not exceed the lesser of:
(3)
(a) The number of lots, parcels or dwellings described in a waiver issued
by the state before the effective date of this 2007 Act, or, if a waiver
was not issued, the number of lots, parcels or dwellings described in
the claim filed with the state; or
(b) Three, except that if there are existing dwellings on the property or
the property contains more than one lot or parcel, the number of lots,
parcels or dwellings that may be established is reduced so that the
combined number of lots, parcels or dwellings, including existing lots,
parcels or dwellings located on or contained within the property, does
not exceed three.
Notwithstanding subsection (2) of this section, a claimant that otherwise
qualifies for relief under this section may establish at least one additional lot,
parcel or dwelling on the property. In addition, if the number of lots, parcels
or dwellings described in a waiver issued by the state before the effective date
of this 2007 Act or, if a waiver was not issued, the number of lots, parcels or
dwellings described in the claim filed with the state is more than three, the
claimant may amend the claim to reduce the number to no more than three
by filing notice of the amendment with the form required by Section 8 of this
2007 Act.
*
(8) Except as provided in section 11 of this 2007 Act, if the Department of Land
Conservation and Development has issued a final order with a specific
number of home site approvals for property under this section, the claimant
may seek other governmental authorizations required by law for the
partition or subdivision of the property or for the development of any
dwelling authorized, and a land use regulation enacted by the state or county
that has the effect of prohibiting the partition or subdivision, or the dwelling,
does not apply to the review of those authorizations.
Section 7.
(1)
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A claimant that filed a claim under ORS 197.352 on or before the date of
adjournment sine die of the 2007 regular session of the Seventy-fourth
Legislative Assembly for property that is not high-value farmland or high-
value forestland and that is not in a ground water restricted area is eligible
for four to 10 home site approvals for the property if the requirements of this
section and sections 8 and 11 of this 2007 Act are met. The procedure for
obtaining home site approvals under this section is set forth in Section 8 of
this 2007 Act.
(2) The number of lots, parcels or dwellings that may be established on the
property under this section may not exceed the lesser of:
(3)
* * *
(a) The number of lots, parcels or dwellings described in a waiver issued
by the state before the effective date of this 2007 Act or, if a waiver
was not issued, the number of lots, parcels or dwellings described in
the claim filed with the state;
(b) 10, except that if there are existing dwellings on the property or the
property contains more than one lot or parcel, the number of lots,
parcels or dwellings that may be established is reduced, so that the
combined number of lots, parcels or dwellings, including existing lots,
parcels or dwellings located or contained within the property, does
not exceed 10; or
(c) The number of home site approvals with a total value that represents
just compensation for the reduction in fair market value cause by the
enactment of one or more land use regulations that were the basis for
the claim, as set forth in subsection (6) of this section.
If the number of lots, parcels or dwellings described in a waiver issued by the
state before the effective date of this 2007 Act or, if a waiver was not issued,
the number of lots, parcels or dwellings described in the claim filed with the
state is more than 10, the claimant may amend the claim to reduce the
number to no more than 10 by filing notice of the amendment with the form
required by section 8 of this 2007 Act.
Section 8.
(1)
No later than 120 days after the effective date of this 2007 Act, the
Department of Land Conservation and Development shall send notice to all
the following claimants that filed a claim for property outside an urban
growth boundary:
* * *
(b) A claimant whose claim was approved by the state before the effective
date of this 2007 Act; * * *
* * *
(2) The notice required by subsection (1) of this section must:
(a) Explain the claimant's options if the claimant wishes to subdivide,
partition or establish a dwelling on the property under sections 5 to 22
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(3)
* * *
of this 2007 Act;
(b) Identify any information that the claimant must file; and
(c) Provide a form for the claimant's use.
A claimant must choose whether to proceed under Section 6 or 7 of this 2007
Act by filing the form provided by the department within 90 days after the
date the department mails the notice and form required under subsection (1)
of this section. In addition, the claimant must file any information required
in the notice. If the claimant fails to file the form within 90 days after the
date the department mails the notice, the claimant is not entitled to relief
under Section 6 or 7 of this 2007 Act.
Section 11.
(1) A subdivision or partition of property, or the establishment of a dwelling on
property, authorized under sections 5 to 11 of this 2007 Act must comply
with all applicable standards governing the siting or development of the
dwelling, lot or parcel, including, but not limited to, the location, design,
construction or size of the dwelling, lot or parcel. However, the standards
must not be applied in a manner that has the effect of prohibiting the
establishment of the dwelling, lot or parcel authorized under sections 5 to 11
of this 2007 Act unless the standards are reasonably necessary to avoid or
abate a nuisance, to protect the public health or safety or to carry out federal
law.
* * *
(3) (a) A city or county may approve the creation of a lot or parcel to contain
a dwelling authorized under sections 5 to 11 of this 2007 Act.
However, a new lot or parcel located in an exclusive farm use zone, a
forest zone, or a mixed farm and forest zone may not exceed:
(A) Two acres if the lot or parcel is located on high-value
farmland, on high-value forestland or on land within a ground
water restricted area; or
(B) Five acres if the lot or parcel is not located on high-value
farmland, on high-value forestland or on land within a ground
water restricted area.
(b) If the property is in an exclusive farm use zone, a forest zone or a
mixed farm and forest zone, the new lots or parcels created must be
clustered so as to maximize suitability of the remnant lot or parcel for
Stoltz
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farm or forest use.
b. Analysis. The applicants cannot develop the proposed partition unless and until they receive
final partition plat approval from the county. As discussed in the findings below, the Hearings
Officer has imposed conditions of approval requiring the applicants to complete several tasks
before applying for final partition plat approval from the county. I find from the plain language
of Sections 5 and 6 of Measure 49 that the measure applies to the applicants' proposed partition
because the applicants filed a claim under Measure 37 prior to the adjournment of the 2007
Legislative Assembly.
Under Section 5 of Measure 49, the applicants are entitled to:
1. receive just compensation and/or a waiver of land use regulations under Section 6 of
Measure 49 (for property outside an urban growth boundary);
2. use the waiver issued to them before the effective date of Measure 49 to the extent the
use of their property "complies with the waiver and the claimant has a common law
vested right" to "complete and continue the use described in the waiver" as of the
effective date of Measure 49; or
3. develop the specific number of home sites approved in the state -issued waiver as long as
the lots are no larger in size than 2 acres (high-value farmland) or 5 acres (non high-value
farmland) and are clustered.
As set forth in the Findings of Fact above, the applicants received a state waiver under Measure
37 that expressly approved "division of the 19.82 -acre property into eight parcels * * * [and]
development of a dwelling on each parcel." The Hearings Officer finds the subject property does
not constitute "high-value farmland" as defined by Measure 49 because it is not located within
the boundaries of an irrigation district and does not have irrigation water rights. Therefore the
applicants are not prohibited under Measure 49 from developing parcels larger than 2 acres in
size. However I find it is not clear whether the applicants can demonstrate they have a "vested"
right to develop the three proposed parcels or three new dwellings since they had not obtained
tentative partition plat approval on the date Measure 49 took effect. In any case, under Section 8
of Measure 49, DLCD must issue the applicants a notice explaining their options under the
measure, and the applicants must file the required DLCD form to exercise their rights under
Measure 49. For these reasons, I find the tentative partition plan and dwelling approvals granted
by this decision do not guarantee that the applicants will be able to obtain final partition plat
approval and dwelling approval from the county.
C. APPLICABLE REGULATIONS UNDER MEASURE 37 WAIVER
FINDINGS: Both the state and county found the applicants purchased the subject property on
March 15, 1968, and granted the applicants' requests for a waiver of those non-exempt land use
regulations adopted after that date that resulted in a reduction of the subject property's value.
Therefore, the Hearings Officer finds the threshold questions following the Measure 37 waivers
are:
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1. what land use regulations were in effect as of March 15, 1968;
2. what, if any, current non-exempt and exempt land use regulations apply to the applicants'
proposal;
3. does the applicants' proposal comply with the regulations identified as applicable on March
15, 1968; and
4. does the applicants' proposal comply with the current exempt and non-exempt regulations
identified as applicable?
These questions are addressed in the findings below.
1. What Land Use Regulations Were In Effect as of March 15, 1968?
FINDINGS: The record indicates that as of March 15, 1968 there were no land use regulations
in effect in Deschutes County. However, the 1967 version of ORS Chapter 92 was in effect.
2. What If Any Current Non-exempt and Exempt Land Use Regulations Apply to the
Applicants' Proposal?
FINDINGS: In its decision in Arnett (TP -06-977, MA -06-21), the board held the provisions of
Titles 17 and 18 of the Deschutes County Code, the county's current subdivision/partition and
zoning ordinances, respectively, applied to the applicant's proposal in that case to the extent
application of those provisions did not result in a reduction in the value of the property. The
Hearings Officer adheres to that holding here. As discussed in the findings below, I have found
that with few exceptions the provisions of Title 18 governing development of EFU-zoned land
do not apply to the proposed partition because they would reduce the value of the subject
property and therefore were waived by the county's Measure 37 order. However, I find the
provisions of Title 17 do apply to the proposed partition because either they do not reduce the
subject property's value or they are exempt from Measure 37 because they address public health
and safety. Compliance with the applicable provisions of Titles 17 and 18 is discussed in the
findings below.
3. Does the Applicants' Proposal Comply with the Regulations Identified as Applicable on
March 15, 1968?
FINDINGS: The record does not include a copy of the provisions of ORS Chapter 92 in effect
on March 15, 1968 when the applicants purchased the property. However, in its Arnett decision
the board concluded that given the subject matter covered by the current provisions of ORS
Chapter 92 it is unlikely the version in effect in March of 1968 included any provisions either
establishing minimum lot sizes or prohibiting partitioning of the subject property. The Hearings
Officer adheres to that analysis here.
4. Does the Applicants' Proposal Comply with the Current Exempt and Non-exempt
Regulations Identified as Applicable?
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FINDINGS: The proposed partition's compliance with applicable current state and county land
use regulations is discussed in detail in the findings below.
C. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.16, Exclusive Farm Use Zones
a. Section 18.16.025, Uses Permitted Subject to the Special Provisions
Under DCC 18.16.038
A. Dwellings customarily provided in conjunction with farm use
(farm -related dwellings).
b. Section 18.16.030, Conditional Uses Permitted — High Value and
Nonhigh Value Farmland
The following uses may be allowed in the Exclusive Farm Use zones on
either high value or nonhigh value farmland subject to applicable
provisions of the Comprehensive Plan, DCC 18.16.040 and 18.16.050,
and other applicable sections of DCC Title 18.
A. Nonfarm dwelling and accessory uses thereto.
B. Lot of record dwelling.
FINDINGS: As discussed above, there were no state or county zoning or partition regulations in
effect when the applicants purchased the subject property in March of 1968. Consequently, the
Hearings Officer finds dwellings on the proposed partition parcels would not be considered farm,
nonfarm or lot -of -record dwellings, and therefore they would not require conditional use permits.
c. Section 18.16.050, Standards for Dwellings in the EFU Zones
Dwellings listed in DCC 18.16.025 and 18.16.030 may be allowed under
the conditions set forth below for each kind of dwelling, and all
dwellings are subject to the landowner for the property upon which the
dwelling is placed, signing and recording in the deed records for the
County, a document binding the landowner, and the landowner's
successors in interest, prohibiting them from pursuing a claim for relief
or cause of action alleging injury from farming or forest practices for
which no action or claim is allowed under ORS 93.396 or 30.397.
FINDINGS: In several previous decisions (e.g., Stills, MP -05-21), the county's hearings officers
have held that in the absence of evidence in the record that signing and recording the waiver
document required by this section would result in the reduction of property value this
requirement was not waived by the county's Measure 37 waiver order. The Hearings Officer
adheres to these holdings here. As discussed in the findings below, I have found the applicants
have not demonstrated there is adequate legal access to the subject property, and therefore I
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cannot approve the proposed partition or dwellings. However, because I anticipate this decision
will be appealed to the board, I have included findings on all applicable partition and dwelling
approval criteria to assist planning staff and the board. I find that if the board approves the
applicants' proposal on appeal, such approval should be subject to a condition of approval
requiring the applicants to execute and record a waiver document as described in this section.
b. Section 18.16.055, Land Divisions
c. Section 18.16.065, Subzones
FINDINGS: The Hearings Officer finds the provisions of these sections, which establish
minimum lot sizes for each EFU subzone, are not applicable to the applicants' proposal because
they would prevent the applicants from partitioning their property and thereby would reduce the
value of the property, and therefore were waived by the county's Measure 37 waiver order.
d. Section 18.16.060, Dimensional Standards
* * *
E. Building height. No building or structure shall be erected or
enlarged to exceed 30 feet in height, except as allowed under
DCC 18.120.040.
FINDINGS: The Hearings Officer finds the dimensional (lot size) standards in this section were
waived by the county's Measure 37 waiver order, but that the 30 -foot height limit is applicable to
the proposed dwellings because this limitation would not reduce the value of the subject
property. Therefore, I find that if the board approves the applicants' proposal on appeal, such
approval should be subject to a condition of approval requiring the applicants to comply with this
height limit, with compliance with this requirement verified at the time of building permit
issuance.
e. Section 18.16.070, Yards
A. The front yard shall be 40 feet from a property line fronting on
a local street, 60 feet from a property line fronting on a collector
and 100 feet from a property line fronting on an arterial.
B. Each side yard shall be a minimum of 25 feet, except that for
nonfarm dwelling proposed on parcels or lots with side yards
adjacent to a property currently employed in farm use, the side
yard shall be a minimum of 100 feet.
C. Rear yards shall be a minimum of 25 feet, except that for
nonfarm dwellings proposed on parcels or lots with rear yards
adjacent to a property currently employed in farm use, the rear
yard shall be a minimum of 100 feet.
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D. In addition to the setbacks set forth herein, any greater setbacks
required by applicable building or structural !codes adopted by
the State of Oregon and/or the County under DCC 15.04 shall
be met.
FINDINGS: As set forth in the findings above, the county's Measure 37 waiver order states "the
current procedural regulations for land division and development applications and approval,
including, but not limited to setbacks, access, height, and landscaping requirements shall be
applied. Therefore, the Hearings Officer finds the EFU Zone minimum setbacks were not
waived. I further find the proposed partition parcels will be large enough to assure single-family
dwellings can be built that will meet these minimum EFU Zone setbacks. I find that if the board
approves the applicants' proposal on appeal, such approval should be subject to a condition of
approval requiring that the proposed dwellings on the partition parcels satisfy the minimum
setbacks in this section, and that compliance with these standards — along with the 30 -foot height
limitation -- be verified at the time of building permit issuance.
For the foregoing reasons, the Hearings Officer finds that the applicants' proposed dwellings
satisfy, or with imposition of the conditions of approval described above will satisfy, all
applicable current EFU Zone provisions that were not waived by the state and county.
2. Chapter 18.84, Landscape Management Combining Zone
a. Section 18.84.020, Application of Provisions
The provisions of this chapter shall apply to all areas within one-
fourth mile of roads identified as landscape management corridors in
the Comprehensive Plan and the County Zoning Map. The provisions
of this chapter shall also apply to all areas within the boundaries of a
State scenic waterway or Federal wild and scenic river corridor and
all areas within 660 feet of rivers and streams otherwise identified a
landscape management corridors in the comprehensive plan and the
County Zoning Map. The distance specified above shall be measured
horizontally from the center line of designated landscape management
roadways or from the nearest ordinary high water mark of a
designated landscape management river or stream. The limitation in
this section shall not unduly restrict accepted agricultural practices.
b. Section 18.84.050, Use Limitations
A. Any new structure or substantial alteration of a structure
requiring a building permit, or an agricultural structure,
within an LM Zone shall obtain site plan approval in
accordance with DCC 18.84 prior to construction. As used in
DCC 18.84 substantial alteration consists of an alteration
which exceeds 25 percent in the size or 25 percent of the
assessed value of the structure.
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FINDINGS: Both Gist Road and Highway 20 are identified as LM corridors. The record
indicates the subject property is located outside the Gist Road LM corridor, but the majority of
the property — including all of Parcel 1 and most of Parcel 3 — is located within the Highway 20
LM corridor. As set forth above, Section 2 of the county's Measure 37 waiver order states
"landscaping requirements shall be applied." The staff report states this language should be read
to include the provisions of the LM Zone because the purpose of the zone is "to maintain scenic
and natural resources of the designated areas and to maintain and enhance scenic vistas and
natural landscapes as seen from designated roads, rivers or streams." In addition, staff argues
there is no basis in this record from which to conclude application of the LM Zone provisions
would reduce the value of the subject property. For these reasons staff asserts the proposed
dwellings should be subject to LM site plan review prior to issuance of building permits.
The Hearings Officer concurs with staff that the LM Zone applies to the proposed dwellings if
ultimately they are sited within the Highway 20 LM corridor. Therefore, I fmd that if the board
approves the applicants' proposal on appeal, such approval should be subject to a condition of
approval requiring that prior to issuance of a building permit for a dwelling on any of the
partition parcels the applicants or their successors in interest either demonstrate that the dwelling
will be located outside the boundaries of the LM Zone, or that if the dwelling would be located
within the LM Zone boundaries the applicants or their successors must apply for and obtain LM
site plan approval for the dwelling(s) located within the LM Zone.
D. Title 17 of the Deschutes County Code, the Subdivision/Partition Ordinance
1. Chapter 17.22, Approval of Tentative Plans for Partitions
a. Section 17.22.020, Requirements for Approval
A. No application for partition shall be approved unless the
following requirements are met:
1. Proposal is in compliance with Oregon Revised Statutes
chapter 92, the applicable comprehensive plan and
applicable zoning ordinance. A proposed partition is
not in compliance with the zoning ordinance if it would
conflict with the terms of a previously issued approval
for a land use on the property or would otherwise create
a nonconforming use on any of the newly described
parcels with respect to an existing structure or use;
FINDINGS: The Hearings Officer finds ORS Chapter 92 is implemented through Title 17, and
therefore if the proposed partition complies with Title 17 it also will comply with ORS Chapter
2 Only a small portion of Parcel 2 near its northeast corner is located within the Highway 20 LM corridor.
The applicants or their successors in interest may be able to demonstrate that the dwelling sites on Parcels
2 and/or 3 fall outside the Highway 20 LM corridor, and/or that one or more of the dwellings on the three
partition parcels would not be visible from Highway 20 and therefore would be subject to the "non-
visible" LM site plan review standards.
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92. I further find approval of the proposed partition would not conflict with the terms of any
previous land use approval or create a nonconforming use inasmuch as the county has issued a
waiver under Measure 37 allowing the subject property to be divided into three parcels with
dwellings established on each of the new parcels.
2. Proposal does not conflict with existing public access easements
within or adjacent to the partition;
FINDINGS: The applicants' October 10, 2005 preliminary title report does not show any public
access easements on the subject property with which the proposed partition would conflict. The
Hearings Officer finds that if the board approves the applicants' proposal on appeal, such
approval should be subject to a condition of approval that they provide a current preliminary title
report prior to submitting the final partition plat for approval.
3. The partition is accessed either by roads dedicated to the
public or by way of United States Forest Service or Bureau of
Land Management roads where applicant has submitted a
written agreement with the appropriate land management
agency providing for permanent legal access to the parcels and
any required maintenance. This provision shall not be subject
to variance;
FINDINGS: As discussed in the findings above, proposed partition Parcels 1 and 3 would have
access from both a 60 -foot -wide private access easement and from Harrington Loop. Proposed
Parcel 2 would have access only from the private access easement. In his August 21, 2007
comments on the applicants' proposal, County Engineer George Kolb stated in pertinent part:
• Harrington Loop Road is a County Road with a paved surface from Gist Road to
Peterson Ridge Road and is maintained by Deschutes County. This portion of
Harrington Loop was legalized by the County in 2006.
• The portion of Harrington Loop from Highway 20 to Gist Road is a gravel road
that is maintained by Deschutes County on a limited basis. There is no record of
right-of-way dedication or establishment of right-of-way on this portion of
Harrington Loop therefore the applicant will be required to dedicate 30 feet of
right-of-way from the section along their property frontage.
• The applicant is to meet the following conditions if this land use application is
approved:
1. All easements of record or existing rights -of -ways shall be noted on the
final mylar.
2. The applicant shall dedicate 30 feet of right-of-way from the section line
along their property frontage for Harrington Loop Road.
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3. The surveyor or engineer submitting the plat shall submit information
showing the location of the existing road in relationship to the road right-
of-way, on behalf of the applicant to the County Road Department. This
information can be submitted on a worksheet and does not necessarily
have to be on the final plat. All existing road facilities and new road
improvements are to be located within legally established or dedicated
right-of-ways. In no case shall a road improvement be located outside of a
dedicated road right-of-way. If research reveals that inadequate right-of-
way exists or that the existing roadway is outside of the legally established
or dedicated right-of-way, additional right-of-way will be dedicated as
directed by the Deschutes County Road Department to meet current
County standards. "(Emphasis added.)
The Hearings Officer finds the above -underscored language in Mr. Kolb's comments is
ambiguous. The underscored language in the second paragraph states there is no evidence of
right-of-way dedication or establishment "on this portion" of Harrington Loop, but does not
clarify whether "this portion" refers to the entire road segment from Highway 20 to Gist Road,
or only to the road segment abutting the subject property. Adding to this ambiguity are Mr.
Kolb's statements that the county maintains the segment of Harrington Loop from Highway 20
to Gist Road — suggesting the county considers this segment of Harrington Loop to be dedicated
-- but that the applicants should be required to dedicate right-of-way "from the section line along
their property frontage." The record indicates the closest section line is the western boundary of
Section 31 adjacent to Gist Road and approximately 1,200 feet west of the subject property's
western boundary. In addition, in his October 24, 2007 comments on the applicants' proposal,
Mr. Kolb stated in pertinent part:
"One thing I did overlook is that they are accessing one of the parcels on an
easement versus a public right-of-way. If I remember the code right, Parcel No. 2
will either have to be a flag lot or the 60 foot road and utility easement will have
to be dedicated and built to the standards for a partition. "
This statement also could be read to suggest the segment of Harrington Loop between Highway
20 and Gist Road is a dedicated public right-of-way.
At the public hearing, the applicants agreed to include on the partition plat a 30 -foot -wide
dedication for Harrington Loop along the subject property's northern boundary. However, the
Hearings Officer finds I lack authority to require the applicants to dedicate the additional right-
of-way from their western property boundary to Gist Road since they don't own the intervening
property. And I find Mr. Kolb's comments reasonably can be read to suggest there is not any
dedicated road access to the subject property.
In the Hearings Officer previous decision in Hopp (MP -07-3), cited in the staff report, I held that
applicant would not be required to satisfy the dedicated public road access requirement in this
section because the only access from a public road to the property at issue in that case consisted
of an existing private access easement across property not owned by the applicant, and therefore
the applicant could not dedicate it. I noted that the applicant believed he had a prescriptive right
to use this easement. I further noted that, like the Measure 37 waiver order in this case, Hopp's
county waiver order stated in pertinent part:
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"However, the current procedural regulations for land division and development
applications and approval, including, but not limited to setbacks, access, height,
and landscaping requirements shall be applied. " (Emphasis added.)
In the Hearings Officer's previous decision in Hurtley (TP -06-974), which involved an
application for a subdivision on EFU-zoned land, I made the following findings concerning the
application of identical waiver language to minimum setbacks for dwellings:
"Opponents argue the above -underscored language means the applicant's
proposed subdivision must satisfy all minimum setbacks established in Section
18.16.70 for all lots including the 100 foot setbacks from parcels engaged in farm
use, and because it does not do so it cannot be approved. The applicant responds
that the county's waiver order cannot be read to require compliance with the
EFU Zone setbacks in section 18.16.70 because: (1) the above -quoted language
was intended to require compliance with current procedural regulations and
setbacks are not procedural; ' * * *; and (4) in any case if the Hearings Officer
were to require compliance with the 100 foot setback it would render at least two
proposed subdivision lots unbuildable, which would be inconsistent with the
intent of the county's waiver order and would give rise to another Measure 37
claim.
The Hearings Officer concurs with the applicant's analysis. The above -quoted
waiver language is ambiguous on its face because it describes as 'procedural' the
characteristics of a use that are clearly `substantive' — i.e., `setbacks, access,
height and landscaping requirements. ' I find that in the context of the county's
entire waiver order, this language cannot reasonably be read to require
compliance with setbacks that would reduce the value of the applicant's property
and that do not address public health or safety considerations. While the 100 foot
setbacks may have a public health and safety component by providing separation
between dwellings and farm activities such as spraying of herbicides and
pesticides, there is no evidence in this record that such activities are occurring on
abutting parcels engaged in farm use. * * *. " (Emphasis in original.)
In the Hearings Officer's decision in Hopp, I adhered to my analysis in Hurtley, and held:
"The county's waiver order also effectively waived application of the public road
access requirement in this section to the applicant's proposed partition because
application of this requirement would preclude the proposed partition, thereby
reducing the value of the subject property. However, I find public health and
safety considerations clearly are implicated where, as here, the record indicates a
portion of the proposed private access drive serving the partition is not located
within its recorded easement. That is because, as I have held in several previous
partition decisions, adequate access contemplates both legal and physical access.
In other words, if the applicant does not demonstrate there is legal access to the
proposed partition parcels he also cannot demonstrate this access would be
available to emergency vehicles ".
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I went on to find in Hopp that legal access to the partition parcels could be assured through the
measures recommended by the applicant including acquiring and recording an access easement
for the portion of the access drive not located within the recorded easement, and therefore
recommended that if the board approved Hopp's partition on appeal it should be subject to a
condition of approval requiring the applicant to either provide the county with documentation of
a recorded easement where the current access road exists or relocate the road onto the existing
easement.
The Hearings Officer finds the question presented by the applicants' proposed partition in this
case is whether application of the dedicated public road access requirement would preclude
partitioning the subject property, and if so, whether considerations of public health and safety
nevertheless would require that the proposed partition be denied due to the lack of public road
access. If the segment of Harrington Loop between Highway 20 and Gist Road in fact is not
dedicated to the public — and the record strongly suggests it is not — and because the applicants
cannot dedicate segments of Harrington Loop located outside their property, enforcement of the
dedicated public road access requirement in this section would preclude partitioning the subject
property and thereby reduce its value. However, because for reasons of public health and safety
the applicants must demonstrate they have both adequate legal and physical access to the subject
property, the lack of evidence that Harrington Loop is a dedicated public road or that the
applicants have another form of legal access to their property across Harrington Loop — such as a
recorded access easement — means they have not demonstrated they have adequate legal access.
On appeal to the board the applicants may be able to submit additional evidence of dedication of
Harrington Loop or other legal right of access to the subject property from either Highway 20 or
Gist Road via Harrington Loop.3 However, in the absence of adequate evidence in this record
showing such a right of access, the Hearings Officer finds the applicant's proposal does not
satisfy the requirements of this section, and this requirement was not waived by the county's
Measure 37 waiver order because it clearly addresses public health and safety — i.e., adequate
access to the proposed partition parcels and dwellings.
With respect to the proposed private access easement, the applicants' burden of proof states this
easement would be 60 feet wide and would be improved to the county's standards for private
roads. The Hearings Officer finds the proposed private access easement also does not satisfy the
requirements of this subsection. As discussed above, in previous post -Measure 37 partition
decisions I have held I can approve a partition with access from a private road if the proposed
partition would be prohibited because of this requirement, therefore reducing the value of the
subject property. However, I find application of the dedicated public road requirement to the
applicants' proposed private access drive would not prohibit partitioning the subject property
into three parcels. That is because the partition could be configured so that each parcel would
have direct access to Harrington Loop -- e.g., using a "flag lot" configuration for Parcel 2. And
3 For example, in Sporalsky (MP -07-11), the Hearings Officer denied a proposed partition on the basis
that the applicants had not demonstrated legal access to the subject property via Chaney Road, a roadway
comprised of recorded access easements and a county -owned parcel over which no easement had been
granted by the county or recorded. On appeal to the board, the applicants submitted evidence of
acquisition of the county -owned property that created legal access across the entire segment of Chaney
Road and thereby allowed the board to approve the partition.
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for the reasons set forth in the findings above, I find application of the dedicated public road
requirement was not waived by the county's Measure 37 waiver order because it clearly
addresses public health and safety.
For the foregoing reasons, the Hearings Officer finds I cannot approve the proposed
partition as configured and without proof of legal access from Harrington Loop to either
Highway 20 or Gist Road. However, because I anticipate this decision will be appealed to
the board, I have included in this decision findings on all applicable partition and dwelling
approval criteria to assist planning staff and the board in the event of an appeal.
4. An access permit can be obtained from either the County
Public Works Department, the City Public Works Department
or the State Highway Division;
FINDINGS: The Hearings Officer finds that if the applicants' proposal is approved by the board
on appeal, such approval should be subject to a condition of approval requiring the applicants
prior to submitting the final partition plat for approval to obtain from the Deschutes County
Community Development Department access permits for any new parcels taking access from
Harrington Loop.
5. Each parcel is suited for the use intended or offered,
considering the size of the parcels, natural hazards,
topography and access;
FINDINGS: The intended use of the proposed new parcels is residential. The Hearings Officer
finds the proposed parcel sizes are suitable for the siting of single-family dwellings meeting the
applicable minimum setbacks. The subject property has generally level terrain and no obvious
natural hazards. Assuming legal access to the three proposed partition parcels from Harrington
Loop to either Highway 20 or Gist Road can be demonstrated by the applicants, access will be
provided from Harrington Loop.
6. All required utilities, public services and facilities are available
and adequate and are proposed to be provided by the
petitioner;
FINDINGS: The Hearings Officer finds all required public facilities and services are available
to the proposed partition parcels, as follows:
1. Domestic Water. The applicants propose to provide water to each partition parcel from
individual on-site wells, and have submitted copies of well logs showing water is available in the
area of the subject property at depths between 275 and 300 feet.
2. Sewage Disposal. The applicants propose to provide sewage disposal through individual on-
site septic systems. If the applicants' proposal is approved by the board on appeal, the Hearings
Officer finds such approval should be subject to a condition of approval requiring the applicants
to obtain approved septic site evaluations for all three parcels.
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3. Fire Protection. The subject property is located within the boundaries of the Cloverdale
Rural Fire District. The fire district did not comment on the applicants' proposal. As discussed in
the findings above, the applicants have proposed to provide an emergency vehicle turnaround at
the southern terminus of the private access road providing access to proposed Parcel 2. The
Hearings Officer finds that if the applicants' proposal is approved by the board on appeal, such
approval should be subject to a condition of approval requiring that prior to submitting the final
partition plat for approval the applicants provide to the Planning Division written documentation
from the fire district that Harrington Loop will have adequate width and surface improvements to
provide access for emergency vehicles.
4. Police Protection. Police protection will be provided by the Deschutes County Sheriff.
5. Transportation Facilities. The applicants propose access to Parcels 1 and 3 from both
Harrington Loop and the proposed private access road, and access to Parcel 2 only from the
private road. As discussed in the findings above, the Hearings Officer has found this proposed
parcel configuration and access do not satisfy the requirement of Title 17 that access be from a
road dedicated to the public. I am aware that the Institute of Transportation Engineers Trip
Generation Manual predicts each single-family dwelling will generate approximately 10 average
daily vehicle trips (ADTs). In his October 24, 2007 comments on the applicants' proposal, the
county's transportation planner Peter Russell stated:
"On a traffic analysis standpoint, this won't be a burden on Harrington Loop Road I'm not
wild about the Harrington Loop/20 intersection, which is likely where the bulk of those 30
trips would end up, but the trip rate falls below what our traffic requirements would need to
trigger a traffic study."
In his October 24, 2007 comments on the applicants' proposal, George Kolb stated in pertinent
part:
"I don't think it [the applicants' proposal] will burden that portion of Harrington
Loop."
Based on Mr. Russell's and Mr. Kolb's comments, the Hearings Officer finds that if the
applicants can resolve the issue of adequate legal access to the subject property and to the
proposed partition parcels, the affected transportation facilities will be adequate to handle the
minimal additional traffic that would be generated by dwellings on the three new parcels.
6. Electricity. The record indicates electricity is provided to the area surrounding the subject
property by Central Electric Cooperative. Although this utility did not comment on the
applicants' proposal, the Hearings Officer finds the presence of other dwellings in the area
indicates electricity will be available to new dwellings on the proposed new parcels.
7. Telephone. The applicants' burden of proof states telephone service is provided in the area
surrounding the subject property by Qwest. This utility also did not comment on the applicants'
proposal. However, the staff report states, and the Hearings Officer agrees, that the presence of
other dwellings in the area surrounding the subject property indicates telephone service will be
available to dwellings on the proposed new parcels.
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For the foregoing reasons, the Hearings Officer finds that if the applicants can resolve the issue of
adequate legal access to the subject property and to the proposed partition parcels, the proposed
partition will satisfy this criterion.
7. A water rights division plan, reviewed and approved by the
appropriate irrigation district or the Watermaster's office, if
water rights are associated with the subject property;
FINDINGS: The record indicates the subject property is not located within the boundaries of an
irrigation district and has no irrigation water rights. Therefore, the Hearings Officer finds this
criterion is not applicable.
8. For partitions or portions thereof within one-half mile of SM
zones, the applicant shows that a noise or dust sensitive use, as
defined in Title 18 of the Deschutes County Code, can be sited
consistent with the requirements of chapter 18.56 of Title 18, as
demonstrated by the site plan and accompanying information
required to be submitted under section 17.28.010(C) of this
chapter.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject
property is not located within one-half mile of any SM zone.
B. If the Planning Director determines that the proposed partition
constitutes series partitioning, or if series partitioning has
occurred in the past, then the Planning Director may refer the
application to the hearings officer for a determination as to
whether the application should be subject to the requirements
of DCC 17.36.300, Public Water Supply System, and DCC
17.48.160, Road Development Requirements for Subdivisions.
FINDINGS: "Series partition" is defined in Section 17.08.030 as "a series of partitions of land
resulting in the creation of four or more parcels over a period of more than one calendar year."
The Hearings Officer finds the proposed partition does not constitute a series partition because as
discussed in the Findings of Fact above, the subject property was created by a 1968 deed, and
there is no evidence in the record of any partitions involving the subject property since that date.
b. Section 17.22.030, Improvement Requirements
In the approval of a land partition, the County shall consider the need
for street and other improvements, and may require as a condition of
approval any improvements that may be required for a subdivision
under the provisions of DCC Title 17. All roads in partitions shall be
dedicated to the public without reservation or restriction, except
where private roads are allowed by the applicable zoning regulations,
such as in planned or cluster developments.
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FINDINGS: As discussed in the findings above, the Hearings Officer has found the evidence in
this record concerning the legal status of access to the subject property from Harrington Loop is
not sufficient from which I can find the proposed partition parcels and dwellings will have access
from a dedicated public right-of-way. The applicants have proposed to dedicate 30 feet of right-
of-way for Harrington Loop along their northern property boundary. However, it is unclear from
this record whether such dedication would assure a dedicated road right-of-way beyond the
property's boundaries to Gist Road, the nearest dedicated public road. For these reasons, I have
found I cannot approve the proposed partition. In addition, as discussed in the findings above, I
have found the applicants' proposed private access easement that would provide access to all
three parcels, and the only access to Parcel 2, would not meet the requirement that the partition
parcels have access to a dedicated public right-of-way. In addition, I find access from a private
road is not permitted under this section because the applicants are not proposing a planned or
cluster development. Therefore, I find the applicants' proposal does not satisfy this criterion.
2. Chapter 17.36, Design Standards
a. Section 17.36.020, Streets
A. The location, width and grade of streets shall be considered in
their relation to existing and planned streets, topographical
conditions, public convenience and safety, and the proposed
use of land to be served by the streets. The street system shall
assure an adequate traffic circulation system for all modes of
transportation, including pedestrians, bicycles and
automobiles, with intersection angles, grades, tangents and
curves appropriate for the traffic to be carried, considering the
terrain. The subdivision or partition shall provide for the
continuation of the principal streets existing in the adjoining
subdivision or partition or of their property projection when
adjoining property which is not subdivided, and such streets
shall be of a width not less than the minimum requirements for
streets set forth in DCC 17.36.
C. Streets in partitions shall be dedicated to the public.
FINDINGS: As discussed in the findings above, the Hearings Officer has found the applicants'
proposal does not comply with the requirement that access to the partition parcels be from a
dedicated public road because the evidence is not sufficient to demonstrate the segment of
Harrington Loop from the subject property to either Highway 20 or Gist Road is dedicated to the
public, and the proposed private access road would not be dedicated to the public. For these same
reasons, I find the applicants' proposal also does not satisfy the requirement of this section that
partition streets be dedicated to the public.
b. Section 17.36.040, Existing Streets
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Whenever existing streets, adjacent to or within a tract, are of
inadequate width to accommodate the increase in traffic expected
from the subdivision or partition or by the county roadway network
plan, additional rights of way shall be provided at the time of the land
division by the applicant. During consideration of the tentative plan
for the subdivision or partition, the Planning Director or Hearings
Body, together with the Public Works Director, shall determine
whether improvements to existing streets adjacent to or within the
tract, are required. If so determined, such improvements shall be
required as a condition of approval for the tentative plan.
Improvements to adjacent streets shall be required where traffic on
such streets will be directly affected by the proposed subdivision or
partition.
c. Section 17.36.060, Minimum Right of Way and Roadway Width
The street right of way and roadway surfacing widths shall be in
conformance with standards and specifications set forth in DCC
17.48. Where DCC 17.48 refers to street standards found in a zoning
ordinance, the standards in the zoning ordinance shall prevail.
FINDINGS: As discussed in the findings above, the Hearings Officer has found the evidence in
this record is not sufficient to demonstrate the segment of Harrington Loop between the subject
property and either Highway 20 or Gist Road is dedicated to the public. I also have found the
proposed private access road within the partition does not satisfy the requirements of Title 17
that access to the proposed partition parcels be from a dedicated public road. I also find the
evidence in this record is not sufficient to show the width and improvements to the segment of
Harrington Loop between Highway 20 and Gist Road satisfy the county's minimum standards
for local public roads. Therefore, I find the applicants have not demonstrated their proposal
satisfies the requirements of these sections.
d. Section 17.36.160, Easements
A. Utility Easements. Easements shall be provided along property
lines when necessary for the placement of overhead or
underground utilities, and to provide the subdivision or
partition with electric power, communication facilities, street
lighting, sewer lines, water lines, gas lines or drainage. Such
easements shall be labeled "Public Utility Easement" on the
tentative and final plat; they shall be at least 12 feet in width
and centered on lot lines where possible, except utility pole
guyline easements along the rear of lots or parcels adjacent to
unsubdivided land may be reduced to 10 feet in width.
B. Drainage. If a tract is traversed by a watercourse such as a
drainageway, channel or stream, there shall be provided a
stormwater easement or drainage right of way conforming
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substantially with the lines of the watercourse, or in such
further width as will be adequate for the purpose. Streets or
parkways parallel to major watercourses or drainageways may
be required.
FINDINGS: The affected utility providers did not comment on the applicants' proposal or
request any easements. The record indicates there are no natural watercourses on the property.
The Hearings Officer finds that if the board approves the applicants' proposal on appeal, such
approval should be subject to a condition of approval requiring the applicants to show all
existing and required utility easements on the final partition plat.
e. Section 17.36.170, Lots - Size and Shape
The size, width and orientation of lots or parcels shall be appropriate
for the location of the land division and for the type of development
and use contemplated, and shall be consistent with the lot or parcel
size provisions of Titles 18 through 21 of this code:
FINDINGS: The Hearings Officer finds that at approximately 10 acres and 5 acres in size, the
proposed partition parcels will be of sufficient size and dimensions to accommodate the
establishment of single-family dwellings meeting the minimum setbacks in the EFU-TRB Zone.
A. In areas not to be served by a public sewer, minimum lot and
parcel sizes shall permit compliance with the requirements of
the Department of Environmental Quality and the County
Sanitarian, and shall be sufficient to permit adequate sewage
disposal. Any problems posed by soil structure and water table
and related to sewage disposal by septic tank shall be
addressed and resolved in the applicant's initial plan.
FINDINGS: The Hearings Officer finds that if the board approves the applicants' proposal on
appeal, such approval should be subject to a condition of approval requiring the applicants to
obtain approved septic site evaluations for all three partition parcels prior to submitting the final
partition plat for approval.
B. Where property is zoned and planned for business or
industrial use, other widths and areas may be permitted by the
Hearings Body. Depth and width of properties reserved or laid
out for commercial and industrial purposes shall be adequate
to provide for the off-street service and parking facilities
required by the type of use and development contemplated.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicants do
not proposed business or industrial use.
f. Section 17.36.180, Frontage
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A. Each lot or parcel shall abut upon a public road for at least 50
feet, except for lots or parcels fronting on the bulb of a cul-de-
sac, then the minimum frontage shall be 30 feet, and except for
partitions off of U.S. Forest Service or Bureau of Land
Management roads.
B. All side lot lines shall be at right angles to street lines or radial
to curved streets wherever practical.
FINDINGS: The submitted tentative partition plat shows Parcels 1 and 3 would have at least 50
feet of frontage on Harrington Loop and all three parcels would have at least 50 feet of frontage
on the proposed private access easement. However, as discussed in the findings above, the
Hearings Officer has found the applicants have not demonstrated the segment of Harrington
Loop between the subject property and either Highway 20 or Gist Road is dedicated to the
public, and the applicants have not proposed to dedicate the private access easement. Therefore, I
find the applicants' proposal does not satisfy the requirements in Subsection (A) of this section. I
find the proposed partition parcels do satisfy the requirements of Subsection (B) of this section.
f. Section 17.36.210, Solar Access Performance
A. As much solar access as feasible shall be provided each lot or
parcel in every new subdivision or partition, considering
topography, development pattern and existing vegetation. The
lot lines of lots or parcels, as far as feasible, shall be oriented to
provide solar access at ground level at the southern building
line two hours before and after the solar zenith from
September 22" to March 21St. If it is not feasible to provide
solar access to the southern building line, then solar access, if
feasible, shall be provided at 10 feet above ground level at the
southern building line two hours before and after the solar
zenith from September 22"d to March 21St, and three hours
before and after the solar zenith from March 22"d to
September 21st.
B. This solar access shall be protected by solar height restrictions
on burdened properties for the benefit of lots or parcels
receiving the solar access.
C. If the solar access for any lot or parcel, either at the southern
building line or at 10 feet above the southern building line,
required by this performance standard is not feasible,
supporting information must be filed with the application.
FINDINGS: The Hearings Officer finds all proposed partition parcels will be large enough to
provide solar access as required by this section.
g.
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Section 17.36.260, Fire Hazards
Whenever possible, a minimum of two points of access to the
subdivision or partition shall be provided to provide assured access
for emergency vehicles and ease resident evacuation.
FINDINGS: The submitted tentative partition plat shows Parcels 1 and 3 would have access
from both Harrington Loop and the proposed private access easement, and Parcel 2 would have
access only from the private easement. As discussed in the findings above, the Hearings Officer
has found the proposed partition does not satisfy the Title 17 requirements that all partition
parcels have access from a dedicated road because the record does not demonstrate the segment
of Harrington Loop from the subject property to either Highway 20 or Gist Road is dedicated to
the public. However, I have found that the applicants could reconfigure the proposed partition to
create a "flag lot" for Parcel 2 that would allow all three parcels to have access from Harrington
Loop, and therefore if the applicants can demonstrate Harrington Loop is a dedicated public road
the proposed partition could satisfy the public road access requirement. I find that if the
applicants can resolve the issue of adequate legal access to the proposed parcels, it should not be
necessary for the applicants to provide a second point of access to the partition parcels. And if
the applicants can demonstrate Harrington Loop is a dedicated public road, and they dedicate the
proposed private access drive to the public, the proposed partition parcel configuration could be
retained, and a second point of access to Parcels 1 and 3 would be provided.
h. Section 17.36.290, Individual Wells
In any subdivision or partition where individual wells are proposed,
the applicant shall provide documentation of the depth and quantity
of potable water available from a minimum of two wells within one
mile of the proposed land division. Notwithstanding DCC 17.36.300,
individual wells for subdivisions are allowed when parcels are larger
than 10 acres.
FINDINGS: The applicants propose to create one parcel larger than 10 acres and two parcels
smaller than 10 acres. Each parcel would be served by an individual on-site well. The applicants
submitted copies of two well logs for wells in the area showing water depths of approximately
500 feet and well depths from 585 to 615 feet. Based on this evidence the Hearings Officer finds
the applicants' proposal complies with this section.
i. Section 17.36.300, Public Water System
In any subdivision or partition where a public water system is
required or proposed, plans for the water system shall be submitted
and approved by the appropriate state of federal agency. A
community water system shall be required where lot or parcel sizes
are less than one acre or where potable water sources are at depths
greater than 500 feet, excepting land partitions. Except as provided
for in DCC 17.24.120 and 17.24.130, a required water system shall be
constructed and operational, with lines extended to the lot line of each
and every lot depicted in the proposed subdivision or partition plat,
prior to final approval.
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FINDINGS:
Therefore, the
Under this section, a community water system is not required for partitions.
Hearings Officer finds this criterion is not applicable to the applicants' proposal
3. Chapter 17.44, Park Development
a. Section 17.44.010, Dedication of Land
* * *
b.
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B. For subdivisions or partitions outside of an urban growth
boundary, the developer shall set aside a minimum area of the
development equal to $350 per dwelling unit within the
development, if the land is suitable and adaptable for such
purposes and is generally located in an area planned for parks.
C. For either DCC 17.44.010 (A) or (B), the developer shall either
dedicate the land set aside to the public or develop and provide
maintenance for the land set aside as a private park open to the
public.
D. The Planning Director or Hearings Body shall determine
whether or not such land is suitable for park purposes.
E. If the developer dedicates the land set aside in accordance with
DCC 17.44.010 (A) or (B), any approval by the Planning
Director or Hearings Body shall be subject to the condition
that the County or appropriate park district accept the deed
dedicating such land.
F. DCC 17.44.010 shall not apply to the subdivision or partition
of lands located within the boundaries of the Bend Metro Park
and Recreation District or the Central Oregon Park and
Recreation District.
Section 17.44.020, Fee in Lieu of Dedication
A. In the event there is not suitable park or recreation area or site
in the proposed subdivision or partition, or adjacent thereto,
then the developer shall, in Lieu of setting aside land, pay into a
park acquisition and development fund a sum of money equal
to the fair market value of the land that would have been
donated under DCC 17.44.010 above. For the purpose of
determining the fair market value, the latest value of the land,
unplatted and without improvements, as shown on the County
Assessor's tax roll shall be used. The sum so contributed shall
be deposited with the County Treasurer and be used for
acquisition of suitable area for park and recreation purposes
or for the development of recreation facilities. Such
expenditures shall be made for neighborhood or community
facilities at the discretion of the Board and/or applicable park
district.
B. DCC 17.44.020 shall not apply to subdivision or partition of
lands located within the boundaries of the Bend Metro Park
and Recreation District or the Central Oregon Park and
Recreation District.
FINDINGS: The record indicates the subject property is located within the boundaries of the
Central Oregon Park District, and therefore the Hearings Officer finds the applicants' proposal is
exempt from the park land dedication and fee in lieu of dedication.
4. Chapter 17.48, Design and Construction Specifications
a. Section 17.48.160, Road Development Requirements - Standards
* * *
B. Improvements of Public Rights of Way
1. The developer of a subdivision or partition will be
required to improve all public ways that are adjacent or
within the land development.
FINDINGS: As discussed in the findings above, the Hearings Officer has found the evidence in
this record is not sufficient to demonstrate the segment of Harrington Loop Road from the
subject property to either Highway 20 or Gist Road is dedicated to the public. I have further
found I lack authority to require the applicants to dedicate right-of-way for Harrington Loop
from the subject property to either Highway 20 or Gist Road because the applicants do not own
the intervening property, and therefore the applicants' proposed dedication of 30 feet of right-of-
way for Harrington Loop along the subject property's northern boundary would not resolve the
question of adequate legal access to the partition parcels or proposed dwellings. In addition, as
discussed above, the evidence in this record does not show the width or nature of improvements
to the segment of Harrington Loop Road from the subject property either to Highway 20 or Gist
Road, and therefore it is not possible to determine whether and to what extent the road's width
and improvements satisfy the county's minimum right-of-way and improvements standards for a
rural local road. Therefore, I find the applicants' proposal does not satisfy this criterion.4
b. Section 17.48.170, Road Development Requirements - Partitions
Roadway improvements within a partition and to a road maintained
by a public agency shall be constructed prior to final approval of the
4 It is possible that requiring the applicants to satisfy the requirements of this section would exceed what
is roughly proportional to the minimal traffic impacts from the partition. However, that cannot be
determined from this record.
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partition, depending on the maximum parcel size as follows:
A. For a parcel size of 10 acres or larger, the minimum road
improvement standard shall be 20 feet wide with five inches of
aggregate surfacing (cinders are acceptable), the centerline of
which coincides with the centerline of the right of way;
B. For a parcel size of less than 10 acres, the road standards used
shall be the same as for a subdivision.
FINDINGS: This criterion establishes minimum improvement standards for road within a
partition and roads "maintained by a public agency" — i.e., not necessarily roads dedicated to the
public. Therefore, I find these standards apply to both Harrington Loop and the applicants'
proposed private access easement. One of the proposed partition parcels would 10 acres in size
and the other two parcels would be 5 acres in size. The Hearings Officer has not previously
determined which road improvement standard in this section applies under these circumstances.
However, I find that because the "maximum parcel size" in the proposed partition is 10 acres, it
is appropriate to apply the standards in Subsection (A) — i.e., 20 feet of aggregate or cinder
surface five inches deep.
As discussed in the findings above, the record does not show what are the existing right-of-way
width and improvements for the segment of Harrington Loop between the subject property and
either Highway 20 or Gist Road. Therefore, the Hearings Officer cannot determine whether
additional improvements to Harrington Loop would be required to comply with the standards in
Subsection (A) of this section. With respect to the proposed private access easement, I find that if
the board approves the applicants' proposal and proposed partition configuration non appeal,
such approval should be subject to a condition of approval requiring the applicants to dedicate
that easement to the public and to improve it to the county's minimum standards under
Subsection (A).
c. Section 17.48.180, Private Roads
The following minimum road standards shall apply for private roads:
A. The minimum paved roadway width shall be 20 feet in planned
unit developments and cluster developments with two -foot wide
gravel shoulders;
B. Minimum radius of curvature, 50 feet;
C. Maximum grade, 12 percent;
D. At least one road name sign will be provided at each intersection
for each road;
E. A method for continuing road maintenance acceptable to the
County;
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F. Private road systems shall include provisions for bicycle and
pedestrian traffic. In cluster and planned developments limited
to ten dwelling units, the bicycle and pedestrian traffic can be
accommodated within the 20 -foot wide road. In other
developments, shoulder bikeways shall be a minimum of four
feet wide, paved and striped, with no on -street parking allowed
within the bikeway, and when private roads are developed to a
width of less than 28 feet, bike paths constructed to County
standards shall be required.
FINDINGS: As discussed in the findings above, the Hearings Officer has found the applicants
cannot provide access to the proposed partition parcels from a private road because they are not
proposing a planned or cluster development. I also have found it is not appropriate to approve
use of a private road for the proposed partition because the applicants could reconfigure the
partition to provide access for all three parcels to Harrington Loop, and therefore application of
the public road requirement would not prevent the applicants from partitioning the subject
property and accordingly would not reduce the value of the property. For these reasons, I find the
private road standards in this section do not apply to the applicants' proposal.
For the foregoing reasons, the Hearings Officer finds the applicants' proposed partition does not
comply with all applicable criteria in Title 17.
IV. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby
DENIES the applicants' proposed partition and the establishment of new single-family
dwellings.
In the event this decision is appealed to the Deschutes County Board of Commissioners and the
board approves the proposed partition on appeal, the Hearings Officer hereby RECOMMENDS
such approval be SUBJECT TO THE FOLLOWING CONDITIONS OF APPROVAL:
1. This approval is based upon the applicants' submitted tentative partition plan, burden of
proof statement and supplemental materials, and written and oral testimony. Any
substantial change to the approved plan will require a new land use application and
approval.
PRIOR TO SUBMITTING THE FINAL PARTITION PLAT FOR APPROVAL:
2. The applicants/owners shall obtain approved septic site evaluations for all three partition
parcels from the Deschutes County Environmental Health Division.
3. The applicants/owners shall have a licensed land surveyor prepare a partition plat in
conformance with ORS Chapter 92 and Title 17 of the Deschutes County Code. The
surveyor shall submit information showing the location of the existing Harrington Loop
in relationship to the dedicated right-of-way. This information can be submitted on a
worksheet and does not necessarily have to be on the final plat.
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4. The applicants/owners shall obtain access permits from the Deschutes County
Community Development Department for any new access to Harrington Loop.
5. The applicants/owners shall pay to the Deschutes County Treasurer all ad valorem taxes,
fees and other charges that have become a lien upon the entire parcel.
6. The applicants/owners shall execute and record with the Deschutes County Clerk a
document binding the landowner, and the landowner's successors in interest, prohibiting
them from pursuing a claim for relief or cause of action alleging injury from farming or
forest practices for which no action or claim is allowed under ORS 93.396 or 30.397.
7. The applicants/owners shall provide to the Planning Division written documentation from
the Cloverdale Rural Fire District that Harrington Loop will have adequate width and
surface improvements to provide access for emergency vehicles.
WITH OR ON THE FINAL PARTITION PLAT:
8. The final partition plat shall include the following information:
a. the exact size of each parcel;
b. all easements of record; and
c. all required utility easements.
9. The applicants/owners shall submit a current title report or subdivision guarantee.
10. The applicants/owners shall dedicate to the public the 60 -foot -wide private access
easement shown on the submitted tentative partition plat, and shall improve this roadway
to the county's minimum standards for partition parcels 10 acres or larger in size.
PRIOR TO REQUESTING A BUILDING PERMIT FOR EACH DWELLING:
11. The applicants/owners or their successors in interest shall:
a. demonstrate that the dwelling will be located outside the boundaries of the LM
Zone; or
b. if the dwelling would be located within the LM Zone boundaries, apply for and
obtain LM site plan approval for the dwelling.
FOLLOWING FINAL PARTITION PLAT APPROVAL/AT ALL TIMES:
12. Any new dwellings shall comply with the 30 -foot height limit in the EFU-TRB Zone.
Compliance with this requirement shall be verified at the time of building permit
issuance.
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13. Any new dwellings shall comply with the minimum setbacks in the EFU-TRB Zone.
Compliance with these setbacks shall be verified at the time of building permit issuance.
14. The applicants/owners shall contact the Deschutes County Property Address Coordinator
for new addresses for the partition parcels.
Dated this 7e, day of January, 2008.
d`^
Mailed this . day of January, 2008.
Karen H. Green, Hearings Officer
THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS
TIMELY APPEALED.
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