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HomeMy WebLinkAboutOrder 022 - Kennel Land Use AppealDeschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org AGENDA REQUEST & STAFF REPORT For Board Business Meeting of March 12, 2008 Please see directions for completing this document on the next page. DATE: March 4, 2008 FROM: Chris Bedsaul, Associate Planner. CDD 383-6719 TITLE OF AGENDA ITEM: Consideration and signature rejecting an appeal of the Hearings Officer'sdenial of File No's. MA-07- 5/TP06-983 a 7 lot subdivision proposal for Delmar and Deloris Kennel . PUBLIC HEARING ON THIS DATE? NO. BACKGROUND AND POLICY IMPLICATIONS: The Kennels applied for a tentative plat approval for a seven lot subdivision in the Exclusive Farm Use - Alfalfa (EFUAL) zone following approval of a measure 37 waiver. The Hearings Officer denied the request to create the seven new lots eligible for single-family dwellings due to failure of the applicant to demonstrate that the proposed subdivision satisfies ORS 215.263 (1973 ed.) or statutes and case law pertaining to the siting of dwellings on EFU land. The applicant agreed to waive the 150 -day decision clock in the appeal. FISCAL IMPLICATIONS: None RECOMMENDATION & ACTION REQUESTED: Staff recommends that the Board deny the request for a de novo review hearing. ATTENDANCE: Chris Bedsaul. DISTRIBUTION OF DOCUMENTS: Copy of the Order to Chris Bedsaul ASAP so any notice of public hearing, if any may be sent out. 0 Community Development Department Planning Division Building Safety Division Environmental Health Division March 4, 2008 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM To: Deschutes Board of County Commissioners From: Chris Bedsaul, Associate Planner Subject: Appeal of Hearings Officer Denial of a 7 -lot subdivision for Kennel, MA7- 5/TP06-983 BACKGROUND The applicant is proposing to create a 7 -lot subdivision within 35.15 acres following Deschutes County Measure 37 Claim approval of Waiver Order No. 2005-110 and State of Oregon Measure 37 Claim approval of Waiver No. M11874. A public hearing was conducted by the Hearings Officer for the proposed subdivision on July 17, 2007. The Hearings Officer's decision, dated October 16, 2007, denied the request to create the seven (7) new lots eligible for single-family dwellings due to failure of the applicant to demonstrate that the proposed subdivision satisfies ORS 215.263 (1973 ed.) or statutes and case law pertaining to the siting of dwellings on EFU land. In summary, the Hearings Officer found that the proposed subdivision did not comply with statutory provisions mandating the preservation of agricultural land and that the dwelling proposed on the lots were not "customarily provided in conjunction with farm use." The applicant's original burden of proof did not contain an analysis of land use patterns in the area required by ORS 215.263. The applicant's appeal has requested the opportunity to supplement the staff analysis to address ORS 215.263. The applicant's appeal also asserts a significant policy issue for the Board regarding Measure 37 subdivisions that are submitted after the adoption of Senate Bill 100, but before the adoption of the Exclusive Farm Use Zones and Comprehensive Plan and Zoning acknowledgement by LCDC. The applicant did not cite any specific policy issues. The applicant filed a timely appeal on October 30, 2007. The applicant has waived the 150 -day decision period in the notice of appeal dated October 30, 2007. The applicant's attorney, in a letter dated December 19, 2007, requested a 90 -day extension for a final decision by the Board regarding the appeal, in order for the applicant to review and consider Measure 49 impacts on the subdivision application. The applicant, following the 90 -day extension of time, has not provided any additional information regarding Measure 49 on the appeal or actions to be taken by the applicant for the subdivision. Quality Services Performed with Pride Except as set forth in DCC 22.28.030, when there is an appeal of a land use action and the Board of County Commissioners is the Hearings Body: A. The Board may on a case-by-case basis or by standing order for a class of cases decide at a public meeting that the decision of the lower Hearings Body of an individual land use action or a class of land use action decisions shall be the final decision of the County. B. If the Board of County Commissioners decides that the lower Hearings Body 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. In such a case, the County shall provide written notice of its decision to all parties. The decision on the land use application becomes final upon mailing of the Board's decision to decline review. C. The decision of the Board of County Commissioners not to hear a land use action appeal is entirely discretionary. D. In determining whether to hear an appeal, the Board of County Commissioners may consider only: 1. The record developed before the lower Hearings Body; 2. The notice of appeal; and 3. Recommendations of staff. RECOMMENDATION Staff recommends the Board deny the appeal and sign Order 2008-022. REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Denying Review of Hearings Officer's Decision in File no. MA-07-5/TP-06-983 (A-07- 16) ORDER NO. 2008-022 WHEREAS, Applicant Delmar and Deloris Kennel appealed the Deschutes County Hearings Officer's decision on application number MA-07-5/TP-06-983; and WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County Commissioners (Board) discretion on whether to hear appeals of Hearings Officer's decisions; and WHEREAS, the applicant provided written consent, in a letter dated October 30, 2007, to waive the 150 -day clock and requested a 90 -day extension, in a letter dated December 19, 2007, of the BOCC review until March 3, 2008; and WHEREAS, the Board has given due consideration as to whether to review this application on appeal; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. The Board, hereby, denies review of the applicant's appeal for Case Number MA-07-5/TP- 06-983 (A-07-16) pursuant to Title 22 of the Deschutes County Code and other applicable provisions of the County land use ordinances. Section 2. The 150 -day clock has been waived and the 90 -day extension period has expired. Dated this of , 2008 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ATTEST: DENNIS R. LUKE, CHAIR TAMMY (BANEY) MELTON, VICE CHAIR Recording Secretary MICHAEL M. DALY, COMMISSIONER PAGE 1 OF 1 - ORDER NO. 2008-022 BRYANT, LOVLIEN JARVIS, PC ATTORNEYS Al Lw EST\BL1 til I ED 1915 Neil R. Bryant Robert S. Lovlien Lynn F. Jarvis John A. Berge Sharon R. Smith John D. Sorlie Mark G. Reinecke Melissa P. Lande Kitri C. Ford Paul J. Taylor Christopher A. Bagley Kyle D. Wuepper Jeremy M. Green Kelly L. Schukart Helen L. Eastwood BEND 591 S.W. Mill View Way Mail: P.O. Box 880 Bend, Oregon 97709 Phone: (541) 382-4331 Fax: (541) 389-3386 VVWW.BLJLAWYERS.COM October 30, 2007 HAND DELIVERED DESCHUTES COUNTY COMMUNITY DEVELOPMENT DEPT. ATTN: CHRIS BEDSAUL 117 NW LAFAYETTE AVE. BEND, OR 97701 Re: Applicant: File No.: Request: Dear Chris: Delmar and Dolores Kennel MA07-5/TP06-983 Notice of Appeal Enclosed is an original and three copies of our Notice of Appeal of Land Use Application No. MA05-5/TP06-983. Also enclosed is our check in the amount of $2,269.00 as payment of the filing fee. Please advise as to when this matter will be set for hearing before the Commissioners. Please call me if you have any questions. Very truly yours, ROBERT S. LOVLIEN RSL/alk Enclosures cc: Mr. and Mrs. Del Kennel (w/ enclosures) 3008-005 100.doc SCANNED OCT 3 0 2007 iv1-1.(1) 1 -ES D Community Development Department Planning Division 117 NW Lafayette Avenue, Bend, OR 97701-1925 (541) 388-6575 - Fax (541) 385-1764 fttp://www.deschutes.org/cdd APPEAL APPLICATION FEE: $2, 269.00 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 responsibility 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'sName(print): Delmar & Dolores Kennel Phone: ( 541- 389-5733 Mailing Address: 61405 K -Barr Rd. City/State/Zip: Bend, OR 97701 Land Use Application Being Appealed: M0 5- 5/ T P 0 6 9 8 3 Property Description: Township 18 Ranee 13 action 10 Tax Lot 800 Appellant's Signature: BY: Robert S. Lovlien, OSB #74197 Of Attorneys for Appellants EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC 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 NOTICE OF APPEAL (This page may be photocopied if additional space is needed.) BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS APPLICANT: DELMAR and DOLORES KENNEL, husband and wife. File No.: NOTICE OF APPEAL APPLICANT/ OWNER: DELMAR and DOLORES KENNEL 61405 K-BARR RD. BEND, OR 97701 ATTORNEY: ROBERT S. LOVLIEN/HELEN L. EASTWOOD BRYANT LOVLIEN & JARVIS, PC P.O. BOX 880 BEND, OR 97709 ENGINEER: TYE ENGINEERING & SURVEYING, INC. 725 NW HILL ST. BEND, OR 97701 REQUEST: 41,64 Applicant requested approval of tentative plat for a seven -lot subdivision in the EFU (exclusive farm use) Zone, Alfalfa Subzone, pursuant to a waiver of land use regulations under Measure 37, and is appealing the decision of the Hearings Officer issued October 18, 2007, which denied the application. LOCATION: East of Bend and South of U.S. Highway 20 on K -Barr Road; Map 18-13- 10, Tax Lot 800. ZONING: The property is currently zoned EFU/AL (Exclusive Farm Use/Alfalfa Subzone). The Applicants (Appellants) applied for a seven -lot subdivision on 33.15 acres. The Hearings Officer in her decision issued October 16, 2007, and mailed October 18, 2007, denied the Applicants' request for the seven -lot subdivision. A copy of said Decision is attached hereto as Exhibit "A" and incorporated herein by reference. Her decision is based upon her conclusion that ORS 215.263(3), in effect in October of 1974, is not satisfied because a subdivision does not conform to the agricultural land policies set forth therein. The Hearings Officer relies upon a statementmade in the Staff Report addressing not ORS 215.263(3), but rather criteria set forth in DCC 17.16.100(A). Page 1 of 3 NOTICE OF APPEAL 3008-005 300.doc BRYANT, LOVLIEN & JARVIS, PC ATTORNEYS AT LAW, ESTABLISHED 1915 591 SW Mill View Way PO Box 880 Bend, Oregon 97709-0880 (541) 382-4331 fax (541) 389-3386 WWW.BLJLAWYERS.COM In the Staff Report, at Page 16, the Staff was addressing the criteria of DCC 17.16.100(A). This criterion reads as follows: "The subdivision contributes to orderly development and land use patterns in the area, and provides for the preservation of natural features and resources, such as streams, lakes, natural vegetation, special terrain features, agricultural and forest lands and other natural resources." In the discussion, the Staff made the following statement: "Staff believes the proposed subdivision would adversely impact agricultural resources in the area by converting viable farm land to residential use." However, later, in the same section, Staff stated that in its belief, the preservation of agricultural lands had apparently been waived by the State and County and that therefore, the criterion of the preservation of agricultural lands had been waived by both the State of Oregon and Deschutes County. Earlier in the Staff Report, the Staff also addressed the provisions of ORS 215.203 and ORS 215.263. In reviewing those statutes, the Staff Report stated as follows: "As discussed above, Staff believes the dwellings on the proposed subdivision lots will be dwellings in conjunction with farm use. For the same reasons, Staff believes that they would satisfy the requirements of ORS 215.203, ORS 215.243 and ORS 215.263 that were applicable to the subject property in October, 1974. For the foregoing reasons, Staff believes the Applicants' proposed subdivision will create lots capable of meeting the requirements of ORS 215.203, ORS 215.243, ORS 215.263, and all of the subdivision lots will meet all applicable standards established by PL -5 that applied to the subject property in October of 1974 when Mr. and Mrs. Kennel acquired it." Despite those conclusions, the Hearings Officer relied upon the Staff comments under DCC 17.16.100(A) as "substantial evidence that the proposal will not contribute to the agricultural economy. Therefore, ORS 215.263(3) is not satisfied because the subdivision does not conform to the agricultural lands policy." The Staff and the Hearings Officer have a distinct difference of opinion as to whether or not the requirements of ORS 215.203 and ORS 215.263(3) have been satisfied. The Hearings Officer relies upon proposed findings from the Staff Report that address not the criteria of the Oregon Revised Statutes, but the criteria set forth in DCC 17.16.100, which Planning Staff believes have been waived in this instance. The site consists of 35.15 acres and contains 21.6 acres of irrigation water. Under the proposed subdivision, each lot will be provided a minimum of two acres of irrigation water rights and no water rights will be transferred from the subject property. The agricultural land will be preserved and most likely put to a more intensive use than current exists. Page 2 of 3 NOTICE OF APPEAL 3008-005 300.doc BRYANT, LOVLIEN & JARVIS, PC ATTORNEYS AT LAW, ESTABLISHED 1915 591 SW Mill View Way PO Box 880 Bend, Oregon 97709-0880 (541) 382-4331 fax (541) 389-3386 W W W.BLJLAWYERS.COM The criteria are substantially different. DCC 17.16.100 speaks to a subdivision contributing to orderly development and land use patterns in the area, and preservation of agricultural lands. The criteria of ORS 215.263 speaks to the limited supply of agricultural land necessary for the conservation of the State's economic resources and preservation of such land in large blocks as necessary to maintain the agricultural economy of the State. There is a distinct difference because most small farms in Central Oregon do not have an impact on the agricultural economy of this State. Applicants are prepared to submit an analysis of the land use patterns of the surrounding area for the purposes of the review required by ORS 215.263. Applicants submit that this is different than the analysis of land use patterns that was provided by Planning Staff and relied upon by the Hearings Officer. This appeal presents a significant policy issue for the Board of Commissioners with regard to Measure 37 subdivisions that are submitted after the adoption of Senate Bill 100, but before the adoption of the Exclusive Farm Use Zones and Comprehensive Plan and Zoning Acknowledgement by LCDC. Applicants' attorney does not recall the County requiring any review of agricultural subdivisions if the subdivision met the minimum lot size criteria of PL -2 and PL -5 in effect during the 1970s. 4. The Applicant hereby waives the 150 -day rule as required by DCC 22.32. THEREFORE, because of the policy issues involved, the Applicant requests a de novo review by the Board. Dated this k day of October, 2007. BRYANT, LOVLIEN & JARVIS, P.C. By: Page 3 of 3 NOTICE OF APPEAL 3008-005 300.doc ROBERT S. LOVLIEN, OSB# 74197 Of Attorneys for Applicants/Appellants BRYANT, LOVLIEN & JARVIS, PC ATTORNEYS AT LAW, ESTABLISHED 1915 591 SW Mill View Way PO Box 880 Bend, Oregon 97709-0880 (541) 382-4331 fax (541) 389-3386 W W W.BLJLAWYERS.COM Exhibit "A" DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: MA07-5/TP06-983 SUBJECT: The applicants request approval of Subdivision in the Exclusive Farm Use APPLICANTS/ PROPERTY OWNERS: Delmar and Dolores Kennel 61405 K Barr Road Bend OR 97701 AGENT: Helen Eastwood Bryant, Lovlien & Jarvis, PC PO Box 1151 Bend OR 97709 STAFF CONTACT: Chris Bedsaul, Associate Planner HEARING HELD: RECORD CLOSED: DECISION ISSUED: July 17, 2007 August 14, 2007 October 16, 2007 a Tentative Plat for a 7 -Lot — Alfalfa Zone (EF ��c,,c1 A211 2027 A tlt vt1�1� 5 SOO t) �Gr I. APPLICABLE CRITERIA: Title 17 of the Deschutes County Code, Partitions. 17.16, Approval of Subdivision Tentative Plans and Master Development Plans 17.16.115, Traffic Impact Studies 17.36, Design Standards 17.44, Park Development 17.48, Design and Construction Specifications Title 18 of the Deschutes County Code, County Zoning. 18.16, Exclusive Farm Use (EFU) Zones 18.16.030, Conditional uses permitted — high value and nonhigh value farmland 18.16.050, Standards for dwellings in the EFU zones 18.16.055, Land divisions 18.16.060, Dimensional standards 18.16.065, Subzones 18.16.070, Yards Oregon Revised Statutes (ORS) Chapter 215 (1973 version) Deschutes County Comprehensive Pian adopted by the Deschutes County Board Commissioners on June 17, 1970 by Resolution No. 1 signed June 17, 1970. MA07-5 Page 1 of 30 Hearings Officer Decision of Deschutes County Subdivision Ordinance No. PL -2 passed and adopted on September 9, 1970 by the Deschutes County Board of Commissioners and Deschutes County Zoning Ordinance No. PL -5 passed and adopted December 2, 1971 by the Deschutes County Board of Commissioners and effective on January 1, 1972. Deschutes County Board of County Commissioners Order No. 2005-110 has waived non- exempt Deschutes County regulations in effect after October 21, 1974, the date the applicants acquired an interest in the subject property. The State of Oregon waived the state restrictions on lot sizes and the establishment of one dwelling on each of the resulting lots under Statewide Planning Goal No. 3, ORS 215, and OAR 660, Division 33, enacted or adopted after October 21, 1974. 11. BASIC FINDINGS: A. LOCATION AND SITE DESCRIPTION: The subject property is located east of Bend, south of Highway 20, and has an assigned address of 61425 K -Barr Road. The property includes 35.15 surveyed acres and is identified on Deschutes County Assessor's map no. 18- 13-10, as tax lot 800. Approximately one-third of the site includes high-value agricultural soils. The remainder of the site includes soils of moderate agricultural value. The property is -developed with a barn, machine shed, lean-to and aircraft hangar. The undeveloped portions of the property have ground cover consisting of native vegetation, grasses and juniper trees. The property contains 21.6 acres irrigation rights and is within the Central Oregon Irrigation District (COID). There is a driveway access from tax lot 800 across through an access easement to K - Barr Road, and north to Highway 20. The property is roughly reverse -L shaped. The southwestem comer of the property abuts a strip of land also owned by the applicants (tax lots 1300 and 1400) which links the property to Gribbling Road, a county road. To the south of this strip of land is Timland Lane, a private easement that provides access to several rural residential parcels. The applicant proposes a seven -lot residential subdivision. The proposed lots range in size from 5.00 to 5.18 gross acres. Access to the subdivision is proposed via a new public road that parallels Timland Lane and terminates in a cul-de-sac in the central portion of the property. Access to K -Barr Road will be prohibited. At least two acres of water rights will be allocated to each lot to promote agricultural activities. The applicants have agreed to adopt a Developer Irrigation Plan that specifies the amount of water to be allocated to each lot, and sets out monitoring standards that will track water allocation. In addition, an irrigation lateral line is located on the subject property. The applicants have agreed to maintain the lateral line in accordance with COID regulations. Domestic water will be provided by Avion Water Company. Each site will be developed with an individual subsurface sewage system. The area includes property zoned EFU-AL and rural residential properties. The land is used for pasture, small scale and Targe scale farming. Property to the east and south is owned by Deschutes County. B. LOT OF RECORD: The subject property is a lot of record under Title 18 of the Deschutes County Code. MA07-5/TP06-983 Page 2 of 30 Hearings Officer Decision Lot of Record is defined in DCC 18.030 as "A lot or parcel at !east 5,000 square feet in area and at least 50 feet wide, which conformed to all zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel was created * * *.' Mr. and Mrs. Kennel first acquired an ownership interest in the property through a land sale contract that was satisfied on October 21, 1974. The land sale contract partitioned 35.0 acres from a 134 -acre parcel. The land sale contract was recorded in Deschutes County Deed Records Volume 160, Page 325, dated August 23, 1968. County Survey 04271, dated July 29, 1975, established monuments for the boundary of subject property and County Assessor records identify a Warranty deed recorded for Mr. and Mrs. Kennel in Volume 177, Page 2497, dated January 25, 1989. PL -2, effective October 1, 1970, govemed the subdivision of land, for the preparation, procedures and approval of subdivision plats and improvements, and providing penalties for the violation thereof." PL -2 required that a subdivision approval be granted by Deschutes County when Mr. and Mrs. Kennel acquired the subject property on October 21, 1974. The land division that created the subject property was not a subdivision and thus was not regulated by PL -2. In 1974, the property was zoned A-1, Exclusive Agriculture, with a 5 - acre minimum lot size. The property complied with the requirements of the A-1 zone. Therefore, planning staff concluded, and the hearings officer agrees, that the subject property is a legal lot of record. C. ZONING: The subject property is zoned Exclusive Farm Use -Alfalfa Subzone (EFUAL). D. PUBLIC AGENCY COMMENTS: The Planning Division mailed a Notice of Application to several public agencies. Response comments are noted in the June 26, 2007 staff report and are not reiterated here. To the extent those comments pertain to applicable approval standards, they are addressed in the findings below. E. PUBLIC COMMENTS: The Planning Division mailed Notice of Public Hearing for this application to all property owners within 750 feet of the subject property on June 1, 2007. A Notice of Public Hearing for this application was published in the Bend Bulletin on June 17, 2007. The applicant provided a signed and notarized Land Use Action Affidavit stating that the sign was posted on May 27, 2007 where it can be clearly seen from K -Barr Road. Several neighbors appeared at the July 17, 2007 hearing and provided written and oral testimony. That testimony is included in the record, and responses to issues raised in that the . testimony is set out in the findings. F. REVIEW PERIOD: This application was accepted as complete on May 22, 2007. The applicant has acknowledged in a letter, dated May 16, 2007 that due to the modification and additional notification of neighbors, the 150 -day decision period for TP06983 will restart upon acceptance of this application. The 150 -day decision period ends October 19, 2007. This decision is issued on October 16, 2007, within the 150 -day decision period. G. MEASURE 37: The property owner has received approval of a waiver of land use regulations from Deschutes County, which is listed under Board of County Commissioners Order No. 2005-110, signed by the Board on December 5, 2005 and recorded with the County Clerk, as document 2006-15162, on March 6, 2006. Section 2 on page 2 of this Order states the following: MA07-51TP06-983 Page 3 of 30 Hearings Officer Decision "The Board hereby elects to not apply zoning and nonexempt land use regulations to the subject property described in Exhibit "B" in lieu of payment of just compensation under Ballot Measure 37. Claimant is hereby authorized to use the subject property as permitted at the time he acquired the property. Claimant may apply for a use of the subject property consistent with the zoning and regulations in effect at the time he acquired the property. That use shall be permitted if the subject property fully complies with all regulations in effect on October 21, 1974. The Community Development Director is hereby authorized to determine the effects that any other non-exempt regulations in effect on this date would have on Claimant's proposed development differently than current non-exempt regulations. However, the current procedural regulations for land division and development applications and approval, including, but not limited to setbacks, access, height, and landscaping requirements shall be applied." Additionally, the applicant received approval of a Measure 37 claim from the State of Oregon through a Final Order for Claim No. M118741, dated May 19, 2006, from the Director of the Department of Land Conservation and Development (DLCD). The DLCD Order cites that the "State would not apply laws to the subject property for the partition of the 35 -acre property into 5 -acre parcels. The state's regulations enacted or adopted after October 21, 1974 for the subject property will not apply". Staff is not aware of any other county land use regulations that would be applicable to the applicant's property prior to their purchase of the subject property on October 21, 1974. III. FINDINGS OF FACT AND CONCLUSIONS OF LAW: A. APPLICABLE REGULATIONS UNDER MEASURE 37 WAIVERS FINDINGS: The county and state waived land use regulations under Measure 37 to the date the applicants acquired the subject property—October 21, 1974. The threshold questions following the property owners' Measure 37 waivers are: 1. What, if any, land use regulations applied to the subject property on October 21, 1974, and does the proposed subdivision comply with them; 2. What, if any, current non-exempt land use regulations apply to the proposed subdivision, and does the proposed subdivision comply with applicable current non-exempt regulations; and 3. What, if any, current exempt land use regulations apply to the proposed subdivision, and does the proposed subdivision comply with the current exempt regulations identified as applicable? These questions are addressed in the FINDINGS below. 1. What, If Any, Land Use Regulations Were In Effect as of October 21, 1974? As of October 21, 1974, the following land use regulations were in effect a. The Deschutes County Comprehensive Plan adopted by the Deschutes County Board of Commissioners on June 17, 1970 by Resolution No. 1; MA07-5/TP08-983 Page 4 of 30 Hearings Officer Decision b. PL -2, the Deschutes Subdivision Ordinance passed and adopted by the Deschutes County Board of Commissioners on September 9, 1970; c. PL -5, the Deschutes County Zoning Ordinance, adopted by the Deschutes County Board of Commissioners on December 2, 1971; and d. The official zoning map for Deschutes County, adopted on November 15, 1972. e. ORS Chapter 215 (1993 ed.) Mr. and Mrs. Kennel acquired the subject property in October 21, 1974, after the county adopted its zoning map and related regulations. Accordingly, PL -2 and PL -5 apply to the proposed subdivision. In addition, as noted in the state's Measure 37 waiver set forth in the findings above, ORS chapter 215 (1973) was in effect in October 21, 1974. 2. Does the Applicants' Proposed Subdivision Comply With the Regulations identified as Applicable in October 1974? FINDINGS: a. The 1970 Comprehensive Plan and Plan Map. The 1970 comprehensive plan describes its purpose at page 48 in pertinent part as follows: The Comprehensive Plan for Deschutes County provides DoIlcv guidance with respect to the general direction, extent and character of urbanization, transportation facility development and the management of resource areas of the County for the next 20 years. This part of the report describes the proposals of the Comprehensive Plan on a County wide basis. It is important to note, however, that proposals are shown ra • hicali on a multi -colored Pian des' n entitled "Com • hensive Plan to 1990 — Deschutes County. Oregon" which is included in the packet for this report. The packet also includes black and white plan designs for the four major urban centers of the County. This report and the accompanving plan designs together comprise the Comprehensive Pian for Deschutes County. (Underscored emphasis added.) ., With respect to agricultural lands, at page 52 the plan states in pertinent part: Agriculture The intent of agricultural land use proposals of the Pian is to preserve and enhance the County's agricultural character and economic base, conserve areas of high quality soils and production, and aid in achieving orderly urban expansion. Two classes of agricultural land are indicated on the Plan. Intensiveagriculture is shown for areas which are now under irrigation or are capable of being irrigated and where Class 1 and Class II soils are involved Extensive agriculture is shown for those areas of the County where the primary agricultural activity involves grazing for sheep and beef cattle production. It is proposed that recreation subdivisions be discouraged within both the intensive and extensive agricultural land areas. MA07-5/TPO6-983 Page 5 of 30 Hearings Officer Decision The 1970 comprehensive plan map is a color -coded map that designates every area of the county within one of three main use categories - "Urban Land Use,' "Rural -Resource Use,' and 'Forest Management Zones' - and within one of several subcategories within each of these main categories. The "Rural -Resource Use' category includes the following five sub- categories: • Intensive Agriculture; • Extensive Agriculture; • Private Forest Management • Parks and Recreation Areas; and • Recreation -Residential. According to the plan map, the subject property is located within 'the color -coded area labeled "Intensive Agriculture." Finally, on pages 90-91 the 1970 comprehensive plan addresses its relationship to the county's development regulations in pertinent part as follows: Zoning A zoning ordinance is being drafted as part of the County's current planning program, and will consist of a map establishing the boundaries of various land use districts and a set of regulations and administrative procedures which govern the activities and standards of development permitted within the districts. The zoning ordinance should establish a definite relationship between land use regulations and policies and proposals of the Comprehensive Plan; it must provide sufficient flexibility to accommodate changing conditions; safeguards to assure the protection of individual liberty and the right of property and to avoid unjust discrimination must be balanced with the necessity for public regulation in the public interest (Underscored emphasis added.) Subdivision Regulations In contrast with a zoning ordinance, which regulates land use, the subdivision ordinance sets forth specific standards of design and physical improvements for the development of land as a subdivision. A subdivision ordinance has been drafted and reviewed by the Citizens Advisory Committee for Planning. it prescribes standards for street and lot design, sewer and water service, storm water drainage, street lighting and fire protection facilities. Special requirements are included for reserving sites for public use and for conserving natural assets of the land. (Underscored emphasis added.) The 1970 comprehensive plan does not include mandatory approval criteria for the applicant's proposed subdivision. Rather, the 1970 plan -like the current county comprehensive plan - simply creates the policy framework for the land use regulations established in the zoning and subdivision ordinances which became effective following the board's adoption of the comprehensive plan. The comprehensive plan map designated the subject property intensive MA07-5/TP06-983 Page 6 of 30 Hearings Officer Decision Agriculture," but did not authorize or limit uses on the subject property based on that designation. b. PL -2, the Subdivision Ordinance. Section 102 of PL -2 states that its purposes include aiding in the implementation of the county's comprehensive plan, and assuring Tots are of sufficient size and appropriate design for the purposes for which they are to be used. PL -2 includes the following additional introductory provisions: Section 106 Relationship to Comprehensive General Plan A subdivision plat shall conform to the policies of the Comprehensive General Pian and elements thereof as adopted by the Countv Board of Commissioners, with respect to the type and intensity of land use, population densities and distribution, locations and sizes of public areas, and rights-of-way and improvement of streets. (Underscored emphasis added.) Section 107 Relationship to Official Map A subdivision plat shall conform with the plans for the location, widening or extension of streets and highways and for other projects of a similar nature as shown on an Official Map as adopted by the Board of County Commissioners. In the absence of an Official Map, the alignments of streets or highways shall conform generally with the alignments of streets or highways shown on the Comprehensive General Pian or an element thereof. Section 108 Relationship to Zoning Ordinance A subdivision plat shall conform in all respects with applicable regulations of the zoning ordinance. (Underscored emphasis added.) Section 109 Construction and Definitions * * * C. Definitions * * * 27. Subdivision — An act of subdividing land or a tract of land subdivided as defined in this Section. * * * d. Rural Subdivision — A subdivision located in an area designated by the Comprehensive General Plan for agricultural or open use with lots having a gross area ranging from five (5) acres to ten (10) acres. * * * (Underscored emphasis added.) MA07-5/TP06-983 Page 7 of 30 Hearings Officer Decision Section 302 of PL -2 provides, in relevant part: A. Minimum Lot Area, Width, Depth, Frontage and Building Setback Lines: The minimum area, width, depth and frontage of lots and the minimum building setback line from streets shall conform with the requirements of the applicable zoning districts as provided in the zoning ordinance when applicable. In the absence of a zoning ordinance, or where provisions of the zoning ordinance have not been applied to the property to be subdivided, the area, width, depth, frontage of lots and building setback lines shall conform with the standards prescribed in Table 3 of this Section. Table 3 Minimum Area, Width, Depth, Frontage and Setback Lines of Lots Type Of Subdivision Minimum Area Minimum Width Minimum Depth *Minimum Street Frontage Min. Building Setback Line From Street Urban 7,000 sq. ft. 70' 100' 60' 25' Suburban 20,000 sq. ft. 80' 150' 80' 25' Rural Recreation 1 acre 150' 200' 100' 50' Rural 5 acres 300' 400' 150' 50' *The minimum frontage on curved streets or cul-de-sacs shall be 30 feet for Urban and Suburban Subdivisions and 60 feet for Rural Recreation Subdivisions. FINDINGS: The above -quoted provisions of PL -2 authorized the creation of °rural subdivisions' on land designated "agriculturar by the comprehensive plan map. PL -2 Section 302 established a 5 -acre minimum lot size for rural subdivisions. The zoning ordinance of PL - 6 was adopted December 2, 1971 and was effective January 1, 1972, map adopted November 11, 1972, before Mr. and Mrs. Kennel purchased the subject property. All seven (7) lots in the K Barr Estates subdivision satisfy the minimum lot size or minimum lot depth established in PL -2. The PL -2 Section 302 criteria have been met. c. PL -5, Deschutes County Zoning Ordinance Section 2.020 of PL -5 established 16 zone classifications including two agricultural zones: the Exclusive Agricultural Zone (41), and the General Agricultural Zone (A-2). Sections 3.220 and 3.225 of PL -5 established minimum standards for Tots in the A-1 Zone, and Sections 3.260 and 3.265 established minimum standards for lots in the A-2 Zone. These standards are set forth in the following chart , Zone Minimum Lot Size Minimum Lot Width Minimum Street Frontage Minimum Lot Depth A-1 .5 acres 300' 150' 400' A-2 10 acres 300' 150' 600' Under Sections 3.210 and 3.250, respectively, the A-1 and A-2 Zones permitted outright "buildings and uses customarily provided in conjunction with farming." The record indicates the MA07-5/TPO6-983 Hearings Officer Decision Page 8 of 30 subject property was zoned A-1 when Mr. and Mrs. Kennel acquired it in October 1974. Therefore, the proposed subdivision must comply with the provisions of the A-1 Zone. The applicant's original proposal, TP06-983, cites that the single-family dwellings on the subdivision lots would be dwellings in conjunction with farm use because the development would retain 21.6 acres of water rights on the subject property and an irrigation plan will be adopted to distribute the water rights equally throughout the property so that each subdivision lot has a proportioned acreage of irrigation water. The applicants argue, and staff agrees, that the proposed lots will be very similar to rural subdivisions, Tots or parcels created in the 1970s. Staff believes that these lots sizes and water rights will facilitate future agricultural use of the proposed subdivision lots (°hobby farms.") Staff concluded that if the applicant ensures that each of the proposed Tots will have at least two acres of water rights, the lots will satisfy standards for creating "farmparcels," and thus, any dwelling placed on the Tots will be "dwellings customarily associated with farm uses ("farm dwellings"), a use allowed outright under PL -5 and ORS 215.213(1)(e)(1973 ed.). The difficulty with the assumption that the dwellings that are to be placed on each of the seven Tots are necessarily farm dwellings is that it is not consistent with case law.1 In Matteo v. Polk County, 70 Or App 179, 687 P2d 820 (1984), the Oregon Court of Appeals held that a farm dwelling could only be established on a parcel that includes some farm use. In Doughton v. Douglas County, 82 Or App 444, 728 P2d 887 (1986), the Court also held that a determination of whether a farm dwelling is °customarily provided in conjunction with farm us& is a discretionary decision that requires an analysis of the farm uses occurring on a parcel and a determination that the proposed dwelling is "customarily provided" with those farm uses. Here, there is no evidence that the subject property is used for agricultural purposes in its present configuration, or that farm uses will be established prior to the approval of dwellings on the proposed lots. The only question asked and answered here is whether the proposed lots will satisfy the standards set out in PL -2 and PL -5. The hearings officer does not address, and does not conclude that the dwellings that may be placed on the lots are farm dwellings. That inquiry must be made and answered at the time the building permits are submitted to the county for review. Section 3.225 of PL -5 establishes the following minimum setbacks: • a 50 -foot front yard setback from the street; • a 10 -foot side yard setback except for a side yard adjacent to a street which must be 50 feet and • a 50 -foot rear yard setback. The proposed 5 -acre lots will be of sufficient size to allow single-family dwellings to be constructed that meets these minimum setbacks. b. ORS 215 (1973 Edition) 1 Although the applicants have not asserted the argument, the hearings officer finds that case law interpreting the applicable land use standards provide the appropriate interpretation and analysis to evaluate the standards, and apply even if the decisions were rendered after the date the applicants acquired an interest in their property. ORS 197.352, the statute implementing Measure 37, applies only to land use regulations" that were applied to the property after the date the claimant acquired an interest in the property at issue. An appellate decision interpreting an applicable standard is not a `regulation" within the scope of Measure 37. MA07-51TP06-983 Page 9 of 30 Hearings Officer Decision The provisions of ORS 215.203, in effect in October 1974 when Mr. and Mrs. Kennel acquired the subject property, provided in pertinent part: (1) The following nonfarm uses may be established in any area zoned under ORS 215.010, 215.190 and 215.402 to 215.422 for farm use: * * * (e) The dwellings and other buildings customarily provided in conjunction with farm use, referred to in paragraph (a) of subsection (2) of ORS 215.203. FINDING: Staff found that the proposed dwellings will be "dwellings in conjunction in farm use' because they will be sited on lots that will have irrigation rights, and will be available for some farm uses. As the findings conclude, above, a finding that the proposed tots comply with applicable subdivision and minimum parcel size standards is not the same as a finding that (1) the proposed lots are suitable for the types of agricultural activities found in the area and are large enough to accommodate those farm uses, and (2) that dwellings are customarily provided in conjunction with those farm uses. This standard has not been met. ORS 215.263 Review of land divisions in exclusive farm use zones; criteria for approval; exemption for court-ordered property dispositions. *** (2) Any proposed division of land included within an .exclusive farm use zone resulting in the creation of one or more parcels of land less than 10 acres in size shall be reviewed and approved or disapproved by the governing body of the county within such land is situated. If the governing body of a county initiates a review as provided in subsection (1) or (2) of this section, it shall not approve any proposed division of land unless it finds that the proposed division of land is in conformity with the legislative intend set forth in ORS 215.243. FINDING: The Deschutes County Board of County Commissioners has concluded that the hearings officer serves as the designated first level decision maker for land use applications submitted pursuant to Measure 37 waivers. However, the approval standards used to evaluate the application are the applicable standards in effect at the time the applicants acquired their property. The applicants and planning staff appear to assume that so long as the county land division standards are met, the statutory standards regarding farm dwellings and agricultural land divisions are met as well. That is not true. As late as 1992, the Oregon Court of Appeals reaffirmed its conclusion that statutes goveming land uses in Exclusive Farm Use zones, such as the EFU-AL zone, apply notwithstanding the adoption of local implementing standards that comply with the Statewide Land Use Goals. See Kenagy v. Benton County, 115 Or App 131, 134-135, 838 P2d 1076, rev den 315 Or 271 (1992). (3) ORS 215.243 Agricultural land use policy. MA07-51TP06-983 Page 10 of 30 Hearings Officer Decision The Legislative Assembly finds and declares that: (1) Open land used for agricultural use is an efficient means of conserving natural resources that constitute an important physical, social, aesthetic and economic as- to all the people of this state, whether living in rural, urban or metropolitan areas of the state. (2) The preservation of a maximum amount of the limited supply of agricultural land is necessary to the conservation of the state's economic resources and the preservation of such land in large blocks is necessary in maintaining the agricultural economy of the state and for the assurance of adequate, healthful and nutritious food for the people of this state and nation. (3) Expansion of urban development into rural areas is a matter of public concern because of the necessary increases in costs of community services, conflicts between farm and urban activities and the loss of open space and natural beauty around urban centers occurring as the result of such expansion. (4) Exclusive farm use zoning as provided by law substantially limits alternatives to the use of rural land with the importance of rural lands to the public, justifies incentives and privileges offered to encourage owners of rural lands to hold such lands In exclusive farm zones. FINDING: The applicant has not provided a detailed analysis of the land use patterns surrounding the subject property. Staff found that one-third of the site includes high value agricultural soils. Staff also reviewed an area comprised of land within a 2,640 -foot radius of the subject property to determine the existing land use patterns in the nearby area. The analysis area Includes 18 tax lots that are predominantly zoned EFU-AL and EFU-TRB to the north, east and south. The subject property's west boundary is adjacent to a designated Rural Residential (RR -10) Zone. There are 23 tax lots within the EFU zones that range in size from 4.80 to 161.06 acres, averaging 36.05 acres. Five (5) of the EFU Tots are 4-10 acres. Eighteen (18) of the EFU lots are over 10 acres. There are sixteen (16) tax lots within the adjacent RR -10 zone that range in size from 9.00 to 51.42 acres, averaging 19.54 acres. Three (3) of the RR -10 lots are less than 10 acres in size. Eleven (11) RR -10 Tots are 13.50 to 19.89 acres in size and two are over 20 acres. These surrounding lots in the EFU and RR -10 Zones are predominantly farms, hobby farms, and rural residences. In findings addressing DCC 17.16.100 (A), staff found that the proposed lot sizes do not contribute to the agricultural land base in the area, because it converts land that could be used for relatively productive agricultural activities into rural residential homesites. Staff nevertheless recommended approval of the subdivision, concluding that the standard did not apply to the proposal, as it was adopted after the applicants acquired the subject property, and had the consequence of reducing property values. The hearings officer finds that the evidence presented in the staff report constitutes substantial evidence that the proposal will not contribute to the agricultural economy. Therefore, ORS 215.263(3) is not satisfied because the subdivision does not conform to the agricultural lands policy. Because the applicants have not demonstrated that all applicable approval standards MA07-5/TP06-983 Page 11 of 30 Hearings Officer Decision are satisfied or can be satisfied through the imposition of conditions of approval, the hearings officer must deny the application. However, in the event this decision is overturned on appeal, the hearings officer adopts the following findings with respect to the remaining criteria. 3. What, If Any, Current Non-exempt and Exempt Land Use Regulations Apply to the Proposed Subdivision? FINDINGS: DCC Titles 17 and 18, the current subdivision/partition ordinance and zoning ordinance, respectively, apply to the applicant's proposal to the extent application of these provisions does not result in a reduction in the value of the subject property, and to the extent they are less restrictive than the provisions of PL -5. As discussed in detail in the FINDINGS below, with a few exceptions, the provisions of Title 18 goveming development of EFU-zoned land do not apply to the proposed subdivision because they would reduce the value of the subject property and therefore were waived by the county's Measure 37 order. As also discussed below, certain provisions of Title 18 that apply to the proposed subdivision deal with health and safety and therefore are exempt from Measure 37. Finally, as discussed in the FINDINGS below the provisions of Title 17 apply to the proposed subdivision because either they do not reduce the subject property's value or they are exempt from Measure 37. 4. Does the Applicants' Proposed Subdivision Comply with the Current Exempt and Non-exempt Regulations Identified as Applicable? FINDINGS: The proposed subdivision's compliance with applicable provisions of Titles 17 and 18 is discussed in detail in the FINDINGS below. B. TITLE 17 OF THE DESCHUTES COUNTY CODE. Chapter 17.16, Approval of Subdivision Tentative Plans and Master Development Plans. 1. Section 17.16.080. Tentative plan as a master plan. A. As an alternative to the filing of a master plan for phased development, the applicant may file a tentative plan for the entire development. The plan must comply with the provisions of DCC Title 17 for tentative plans. B. If the applicant proposed to phase development, he shall provide sufficient Information regarding the overall development plan and phasing sequence when submitting the tentative plan. C. If the tentative plan is approved with phasing, the final plat for each phase shall be filed in accordance with DCC 17.24.020 through 17.24.110. FINDINGS: The applicant has not proposed phasing for the subdivision, as shown on the modified tentative plat map. The map conforms to the requirements of Title 17 for a tentative plat map. The final plat for must conform to the requirements of chapter 17.24, which include recording a final plat within two (2) years of the approval date. 2. Section 17.16.100. Required findinas for approval. MA07-5/TP06-983 Page 12 of 30 Hearings Officer Decision A tentative plan for a proposed subdivision shall not be approved unless the Planning Director or Hearings Body finds that the subdivision as proposed or modified will meet the requirements of this title and Titles 18 through 21 of this code, and is in compliance with the comprehensive plan. Such findings shall Include, but not be limited to, the following: A. The subdivision contributes to orderly development and land use patterns in the area, and provides for the preservation of natural features and resources such as streams, lakes, natural vegetation, special terrain features, agricultural and forest lands and other natural resources. FINDINGS: This criterion also requires that a proposed subdivision provide for the preservation of natural features and resources such as streams, lakes, natural vegetation, special terrain features, agricultural and forest lands and other natural resources. The applicant has not provided any detailed analysis of the land use patterns surrounding the subject property. Staff reviewed an area comprised of a 2,640 -foot radius of the subject property to establish the existing land use pattems in the nearby area. The analysis area includes 18 tax lots that are predominantly zoned EFUAL and EFUTRB to the north, east and south. The subject property's west boundary is adjacent to a designated Rural Residential (RR - 10) Zone. There are 23 tax lots within the EFU zones that range in size from 4.80 to 161.06 acres, averaging 36.05 acres. Five (5) of the EFU lots are 4-10 acres. Eighteen (18) of the EFU tots are over 10 acres. There are sixteen (16) tax lots within the adjacent RR -10 zone that range in size from 9.00 to 51.42 acres, averaging 19.54 acres. Three (3) of the RR -10 Tots are Tess than 10 acres in size. Eleven (11) RR -10 lots are 13.50 to 19.89 acres in size and two are over 20 acres. These surrounding lots in the EFU and RR -10 Zones are predominantly farms, hobby farms, and rural residences. Staff concluded that, other than agricultural lands, the only significant natural features on the property include a few juniper trees. There are no streams, lakes or other special terrain features. A portion of the property contains agricultural land as defined in DCC 18.04.030. In the Hurtley Decision (TP -06-974), the County Hearings Officer found that the °orderly development' approval criteria do not apply to Measure 37 proposals because consideration of these factors might result in a reduction in value of the subject property by reducing the number of potential subdivision Tots. The agricultural features have been addressed above, in the section pertaining to ORS 215.263 (1973 ed.) The hearings officer here also agrees with staff that, to the extent DCC 17.16.100(A) imposes additional approval criteria to the proposed subdivision, those criteria do not apply because they were adopted after the applicants acquired their property, and are subject to the county's Measure 37 waiver. B. The subdivision will not create excessive demand on public facilities and services, and utilities required to serve the development. FINDINGS: The evidence shows that the applicant proposes to establish a new public road just north of the existing Timland Lane easement. The segment that intersects with Gribbling Lane MA07-5/TP06-983 Page 13 of 30 Hearings Officer Decision to the west, and the main portion of the subdivision to the east is proposed to be constructed to 1974 standards. The road segment within the subdivision will be paved. The proposed Tots will be of sufficient size to allow one dwelling per lot, along with the potential for accessory structures. The Tots are to be served either by individual wells, a community well system or public water fumished by Avion Water District. Onsite septic systems will be established for each lot upon approval by the Deschutes County Environmental Health Department. The access roads designated to serve the subdivision are to be improved to comply with the County's 1974 rural local road standards for subdivisions. Fire protection will be from the Deschutes County Fire Protection District #2. Additionally, police services will be handled by the Deschutes .County Sheriff's Office, which handles all of the rural county areas. These services address health and safety, and are not subject to Measure 37 waivers. The proposed subdivision will create additional traffic volumes on Gribbling Road; however, the County Road Department has determined that no traffic analysis is needed due to the low volume of projected traffic on the new subdivision road and Gribbling Road. To ensure that intersection safety is maintained, the proposed project is required to meet AASHTO guidelines for intersection spacing, intersection sight distance and stopping distance at the intersection of Gribbling Road and the proposed subdivision road. The County Road Department noted that Gribbling Road is a graveled county road, and that under DCC 17.16.105, the applicant is required to connect to Gribbling Road, and then improve Gribbling Road to county standards. However, the Road Department conceded that the road improvements are not necessary to ensure that the road is safe. Neighbors object to the proposed subdivision, arguing that the applicant should be obliged to satisfy current road standards, which would require paving the entirety of the subdivision road and improving Gribbling Road to its intersection with Highway 20. The neighbors note, and county staff concedes, that the segment of Gribbling Road between Timland Lane and Highway 20 includes a bridge that is weight -restricted. However, the county concluded that the road system has adequate capacity and is safe to serve the proposed subdivision, in part because emergency responders can use an alternate route to reach the subject property. The hearings officer relies on the agency responses to conclude that the proposed development will not create excessive demand on public facilities. The current county standards are intended to provide a funding alternative to improve the county -wide road system. There is no evidence that the proposed subdivision will generate a significant amount of traffic that would warrant road improvements to Gribbling Lane. Further, there is no evidence that a graveled subdivision road will be inadequate to accommodate traffic to and from the subdivision. C. The tentative plan for the proposed subdivision meets the requirements of Oregon Revised Statutes Section 92.090. FINDINGS: ORS 92.090 (1) requires that a new subdivision can only use the same name if it is a continuation of an existing subdivision, with a sequential numbering system, and must either be platted by the same party or have the consent of the previous party. The applicant has proposed a name of "K -Barr Estates.' Neighbors object to the proposed subdivision name, arguing that the name will be confusing to buyers, who will assume that access to the subdivision will be via K -Barr Road. MA07-5rTP06-983 Page 14 of 30 Hearings Officer Decision K -Barr Estates does not appear in any other Deschutes County subdivision, and it is not clear to the hearings officer why the name of the proposed subdivision will connote access via K Ban• Road. In any event, the name must be approved by the County Surveyor. The hearings officer finds that ORS 92.090(1) can be satisfied through the imposition of a condition of approval requiring approval by the County Surveyor. Subsection 2 requires that the streets and roads are laid out to conform with existing plats on adjoining property, that streets and roads held for private use are dearly indicated on the tentative plan and all reservations or restrictions relating to such private roads and streets are set forth thereon. The street name shown on the tentative plan has been designated Timland Lane. However, Timland Lane is a private road that lies to the south of the proposed subdivision road. The new subdivision road name will require approval from the County Property Address Coordinator. Subsections 3, 4 and 5 relate to final platting. D. For subdivision or portions thereof proposed within a Surface Mining Impact Area (SMIA) zone under DCC Title 18, the subdivision creates tots on which noise or dust sensitive uses can be sited consistent with the requirements of DCC 18.56, as amended, as demonstrated by the site plan and accompanying Information required under DCC 17.16.030. FINDINGS: The subject property is not located in a Surface Mining Impact Area (SMIA) zone. The criterion does not apply. E. The subdivision name has been approved by the County Surveyor. FINDINGS: As indicated in a foregoing FINDING, the tentative plat shows a name of "K -Barr Estates.' This name does not appear in any other County subdivision; the proposed name must be approved by the County Surveyor. 3. Section 17.16.105, Access to subdivisions. No proposed subdivision shall be approved unless it would be accessed by Roads constructed to County standards and by Roads accepted for maintenance responsibility by a unit of local or state government. This standard is met if the subdivision would have direct access to an improved collector or arterial, or in cases where the subdivision has no direct access to such a collector or arterial, by demonstrating that the Road accessing the subdivision from a collector or arterial meets relevant County standards and has been accepted for maintenance purposes. FINDINGS: Timland Lane is a private road easement. Initially, the applicants proposed to dedicate a strip of land to be added to the Timland Lane easement, believing that adjacent property owners to the south would agree to dedicating a corresponding width to create a public right of way. The neighbors did not agree to the dedication and improvement of Timland Lane. As a result, the applicants have modified their proposal to dedicate a 60 foot -wide strip from the western boundary of proposed Lot 1 to Gribbiing Road in addition to the segment within the subdivision itself. The applicants propose to improve the internal segment of the subdivision with an asphaltic concrete base, but oppose any requirement that the segment between Lot 1 MA07-5/TP06-983 Page 15 of 30 Hearings Officer Decision and Gribbling Road be paved. According to the applicants, if the road is paved, when Gribbling Road is not, drivers along the road will be tempted to drive at unsafe speeds. The applicants assert that if the proposed subdivision road is dedicated to the public and is improved to 1974 standards, the road will provide adequate access. The hearings officer finds that this standard is waived to the extent it requires improvements that are not related to public health and safety. However, as a consequence, the hearings officer also concludes that the county will not be required to include the road in its inventory of county roads for maintenance purposes, and that the applicant will be required to develop a road maintenance agreement, acceptable to the Road Department, that addresses the allocation of maintenance responsibilities among the owners of the lots. Further, the applicants are not relieved of the burden of showing that the proposed design satisfies applicable road standards for intersection spacing, sight distance and stopping distance, and that the road as constructed, satisfies requirements for emergency access. 4. Section 17.16.115. Traffic Impact Studies. C. Guidelines for Traffic Impact Studies b. Site Traffic Report (STR): If the development or change in use will cause the site to generate 50-200 daily trip ends, and less than 20 PM peak hour trips, a Site Traffic Report will be required. FINDINGS: No traffic analysis or Site Traffic Report is needed, due to the projected volumes of vehicle traffic on both Timland Lane and Gribbling Road. This criterion does not apply. Chapter 17.36, Design Standards 1. Section 17.36.020, Streets. A. The location, width and grade of streets shall be considered in their relation to existing planned streets, topographical conditions, public convenience and safety, and the proposed use of land to be served by the streets. The street system shall assure an adequate traffic circulation system for all modes of transportation, including pedestrians, bicycles and automobiles, with intersection angles, grades, tangents and curves appropriate for the traffic to be carried, considering the terrain. The subdivision or partition shall provide for the continuation of the principal streets existing in the adjoining subdivision or partition or of their property projection when adjoining property Is not subdivided, and such streets shall be of a width not less than the minimum requirements for streets set forth in DCC 17.36. B. Streets in subdivisions shall be dedicated to the public, unless located in a destination resort, planned community or planned or cluster development, where roads can be privately owned. Planned developments shaft include public streets where necessary to accommodate present and future through traffic. MA07-5/ TP06-983 Page 16 of 30 Hearings Officer Decision C. Streets in partitions shall be dedicated to the public. FINDINGS: The tentative plat map shows one (1) road connection to Gribbling Road from a new 60 -foot wide right of way, terminating at a cul-de-sac within the proposed subdivision. The County Road Department does not endorse the proposed street construction, but acknowledges that if constructed as proposed, the road will be adequate to protect public health and safety. This criterion can be satisfied through the imposition of conditions of approval. 2. Section 17.36.040. Existing Streets Whenever existing streets, adjacent to or within a tract, are of inadequate width to accommodate the increase in traffic expected from the subdivision or partition or by the county roadway network plan, additional rights of way shall be provided at the time of the land division by the applicant. During consideration of the tentative plan for the subdivision or partition, the Planning Director or Hearings Body, together with the Public Works Director, shall determine whether improvements to existing streets adjacent to or within the tract, are required. If so determined, such improvements shall be required as a condition of approval for the tentative plan. Improvements to adjacent streets shall be required where traffic on such streets will be directly affected by the proposed subdivision or partition. FINDINGS: Grabbling Road is of adequate width to accommodate the limited increase in traffic expected from the seven (7) additional lots being created in the proposed subdivision. This standard is satisfied. 3. Section 17.36.060. Minimum right of way and Roadway width. The street right of way and roadway surfacing widths shall be in conformance with standards and specifications set forth in DCC 17.48. Where DCC 17.48 refers to street standards found in a zoning ordinance, the standards in the zoning ordinance shall prevail. FINDINGS: As noted above, the hearings officer condudes that the applicant has demonstrated that if the new subdivision road is constructed to 1974 road standards, the road will be safe enough to accommodate traffic from the proposed subdivision. Swales are required for storm water disposal. 4. Section 17.36.120. Street names. Except for extensions of existing streets, no street name shall be used which will duplicate or be confused with the name of an existing street in a nearby city or in the County. Street names and numbers shall conform to the established pattern in the County and shall require approval from the County Property Address Coordinator. MA07-5RP06-983 Page 17 of 30 Hearings Officer Decision FINDINGS: The applicant has proposed a new subdivision road, tentatively named "Timland Lane? However, Timland Lane already exists. An alternative acceptable to the County Property Address Coordinator must be proposed. 5. Section 17.36.140. Bicycle. pedestrian and transit requirements. A. Pedestrian and Bicycle Circulation within Subdivision. 1. The tentative plan for a proposed subdivision shall provide for bicycle and pedestrian routes, facilities and improvements within the subdivision and to nearby existing or planned neighborhood activity centers, such as schools, shopping areas and parks in a manner that will:. a. Minimize such interference from automobile traffic that would discourage pedestrian or cycle travel for short trips; b. Provide a direct route of travel between destinations within the subdivision and existing or planned neighborhood activity centers; and c. Otherwise meet the needs of cyclists and pedestrians, considering the destination and length of trip. FINDINGS: The subject property is not located near of any neighborhood activity centers, schools, shopping areas or parks. The new streets within the subdivision will allow for pedestrian and bicycle use on the improved road surface. 2. Subdivision layout. a. Cul-de-sacs and dead-end streets shall be allowed only where, due to topographical or environmental constraints, the size and shape of the parcel, or lack of through street connections in the area, a street connection is determined by the Planning Director or Hearings Body to be infeasible or in appropriate. In such instances, where applicable and feasible, there shall be a bicycle and pedestrian connection connecting the ends of cul-de-sacs to streets or neighborhood activity centers on the opposite side of the block. b. Bicycle and pedestrian connections between streets shall be provided at mid -block where the addition of a connection would reduce the walking or cycling distance to an existing or planned neighborhood activity center by 400 feet and by at least 50 percent over other available routes. c. Local Roads shall align and connect with themselves across collectors and arterials. Connections to existing or planned MA07-5/TPO6-983 Page 18 of 30 Hearings Officer Decision streets and undeveloped properties shall be provided at no greater than 400 foot intervals. d. Connections shall not be more than 400 feet long and shall be as straight as possible. FINDINGS: The modification and redesign of the subdivision provides for future access to Grabbling Road and Timland Lane for Tax lots 100, 1400, 1700 and 1800 that are within a designated RR -10 zone. The applicant has modified the access to K Ban• Estates to use a new road terminating in a cul-de-sac for access to the subdivision. The applicants did not provide any master development conceptual plan for future development on adjacent RR -10 Zoned property, however, the proposed modification in this application provides a dedicated public road for adjacent or nearby properties within the RR -10 Zone for future development that may occur between the subject property and Gribbling Road. There are no existing or planned neighborhood activity centers in the area. 3. Facilities and Improvements. a. Bikeways may be provided by either a separate paved path or an on -street bike lane, consistent with the requirements of DCC Title 17. b. Pedestrian access may be provided by sidewalks or a separate paved path, consistent with the requirements of DCC Title 17. c. Connections shall have a 20 -foot right of way, with at least a 10 -foot usable surface. FINDINGS: Bicycle and pedestrian access for the subdivision will be within the proposed interior roads on the site, which will meet standards for rural local roads outside of urban unincorporated communities and urban areas. 6. Section 17.36.160, Easements A. Utility Easements. Easements shall be provided along property lines when necessary for the placement of overhead or underground utilities, and to provide the subdivision or partition with electric power, communication facilities, street lighting, sewer lines, water lines, gas lines or drainage. Such easements shall be labeled "Public Utility Easement" on the tentative and final plat; they shall be at least 12 feet in width and centered on lot lines where possible, except utility pole guyline easements along the rear of lots or parcels adjacent to unsubdivided land may be reduced to 10 feet in width. FINDINGS: No response was received from the utility companies indicating that additional easements are necessary. A condition of any approval can be imposed to require documentation from Qwest Communications and Central Electric Cooperative, Inc. detailing what, if any, utility easements exist or will be required on the subject property. All required and existing easements must be shown on the final plat. MA07-5/TP06-983 Page 19 of 30 Hearings Officer Decision 7. Section 17.36.170 Lots - Size and Shape The size, width and orientation of lots or parcels shall be appropriate for the location of the land division and for the type of development and use contemplated, and shall be consistent with the lot or parcel size provisions of Titles 18 through 21 of this code: FINDINGS: The proposed lots will accommodate single-family dwellings. The proposed lots meet the applicable size requirements. This criterion has been met. 8. Section 17.36.180. Frontage A. Each lot or parcel shall abut upon a public Road for at least 50 feet, except for tots 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: Alt proposed lots will have frontage on the internal subdivision road and will meet the frontage standards in accordance with PL -2, Article 3, Section 302, Table 3 and PL -5, Section 302.220(2). The side lot lines are at right angles to the public road. The modified subdivision design meets this criterion. 9. Section 17.36.210. Solar Access Performance A. As much solar access as feasible shall be provided each lot or parcel in every new subdivision or partition, considering topography, development pattern and existing vegetation. The lot lines of lots or parcels, as far as feasible, shall be oriented to provide solar access at ground level at the southern building line two hours before and after the solar zenith from September 22nd to March 21st If it is not feasible to provide solar access to the southern building line, then solar access, if feasible, shall be provided at 10 feet above ground level at the southern building line two hours before and after the solar zenith from September 22nd to March 21st, and three hours before and after the solar zenith from March 22nd to September 21st This solar access shall be protected by solar height restrictions on burdened properties for the benefit of lots or parcels receiving the solar access. C. If the solar access for any lot or parcel, either at the southern building line or at 10 feet above the southern building line, required by this performance standard Is not feasible, supporting information must be filed with the application. MA07-5/TP06-983 Hearings Officer Decision Page 20 of 30 FINDINGS: The proposed lots are five (5) gross acres in size or larger. The large lot dimensional depth configurations permit construction of single-family dwellings on the approved lots within a building envelope that satisfies this criterion. 10. Section 17.36.260, Fire hazards. Whenever possible, a minimum of two points of access to the subdivision or partition shall be provided to provide assured access for emergency vehicles and ease resident evacuation. FINDINGS: The applicant has modified and reconfigured all lots within the subdivision with minimum frontage adjacent to the proposed subdivision road ending with a cul-de-sac near the center of the subdivision. The applicant indicates that the Deschutes County Fire Marshal has been contacted regarding the proposed cul-de-sac. According to the applicant, the Fire Marshal "expressed no concern with the proposed subdivision or cul-de-sac length due to the small number of dwellings in this subdivision.° The applicant, therefore, has not proposed a secondary access to the subdivision. If the Deschutes County Fire District approves the construction of subdivision road and the length of cul-de-sac, a minimum of two points of access for emergency vehicles is not required. The emergency access road shall be constructed in compliance with 2004 Oregon IFC Section 503 and Appendix D. The emergency access road shall be inspected and approved in writing by the Fire Marshal prior to final plat approval. 11. 17.36.270. Street Tree Planting Street tree planting plans, if proposed, for a subdivision or partition, shall be submitted to the Planning Director and receive his approval before the. planting is begun. FINDINGS: No planting of street trees are proposed in this application. This criterion does not apply. 12. Sections 17.36.290. Individual wells. and 17.36.300. Public water system. 17.36.290 In any subdivision or partition where individual wells are proposed, the applicant shall provide documentation of the depth and quantity of potable water available from a minimum of two wells within one mile of the proposed land division. Notwithstanding DCC 17.36.300, individual wells for subdivisions are allowed when parcels are larger than 10 acres. 17.36.300 In any subdivision or partition where a public water system is required or proposed, plans for the water system shall be submitted and approved by the appropriate state of federal agency. A community water system shall be required where lot or parcel sizes are less than one acre or where potable water sources are at depths greater than 500 feet, excepting land partitions. Except as provided for in DCC 17.24.120 and 17.24.130, a required water system shall be constructed and operational, with lines extended to the lot line of each and every lot depicted in the proposed subdivision or partition plat, prior to final approval. MA07-5/TP06-983 Page 21 of 30 Hearings Officer Decision FINDINGS: The subject property is within the Avion Water District boundary and the applicant supplied a 'will -serve" letter from Avion Water District A condition of approval is warranted to require proof of service from the water district at the time the final plat is filed. PL -2, Section 205(A)(7) states that "In any subdivision where lots are to be greater than one (1) acre in area and where sewage disposal is to be provided by means of individual sewage disposal systems, water may be supplied from wells on individual Tots or from an irrigation district serving the area in which the subdivision is located until such time as a public water supply is available, providing the County Sanitarian determines that individual sewage disposal systems will be located and constructed so as not to contaminate any existing or proposed well, irrigation district distribution facility, or any existing stream of underground water supply on the property to be subdivided or on adjoining property" FINDINGS: The applicant proposes to develop individual subsurface sewage disposal on each of the lots. A condition of approval is warranted to demonstrate that adequate area is available for an individual system on each lot prior to filing a final plat. C. Chapter 17.44, Park Development 1. Section 17.44.020. Fee in lieu of dedication. A. In the event there is no suitable park or recreation area or site in the proposed subdivision or partition, or adjacent thereto, then the developer shall, in lieu of setting aside land, pay into a park acquisition and development fund a sum of money equal to the fair market value of the land that would have been donated under DCC 17.44.010 above. For the purpose of determining the fair market value, the latest value of the land, unplatted and without improvements, as shown on the County Assessor's tax roll shall be used. The sum so contributed shall be deposited with the County Treasurer and be used for acquisition of suitable area for park and recreation purposes or for the development of recreation facilities. Such expenditures shall be made for neighborhood or community facilities at the discretion of the Board and/or applicable park district B. DCC 17.44.020 shall not apply to subdivision or partition of lands located within the boundaries of the Bend Metro Park and Recreation District or the Central Oregon Park and Recreation District FINDINGS: Section 17.44.010 requires a dedication of parkland, unless there is no suitable land for a park on the property, and section 17.44.020 allows a fee in lieu of a dedication. Staff believes there is no suitable land for a park, therefore, this criterion applies and the 6 additional lots would require a parks fee of $2,100 ($350 x 6). Staff believes this criterion applies as the creation of regional parklands has had substantial positive impacts on regional property values. The applicant has agreed to pay $2,100 to satisfy this standard. D. Chapter 17.48, Design and Construction Specifications MA07-5/TP06-983 Page 22 of 30 Hearings Officer Decision 1. Section 17.48.050. road design. The design of roads covered by DCC Title 17 is to be prepared by a registered professional engineer and shall at a minimum conform to the design standards for new or existing roads set forth in Table A of DCC Title 17 (or in the design standards set forth for a particular zone in a zoning ordinance) and shall otherwise conform with AASHTO standards. Base and pavement dimensions set forth in Table A (or in specifications set forth for a particular zone) may be increased by the Road Department Director if necessitated by anticipated traffic volumes. FINDINGS: A registered professional engineer must complete the proposed road design for the new streets within this subdivision. Grabbling Road and the proposed subdivision road shall satisfy applicable design standards set out by the Fire District and 1974 road design standards. If there is a conflict between the two standards, the Fire District standards shall control, as they provide the minimum standards necessary to assure safe access. 2. Section 17.48.160. Road development requirements — Standards. A. Subdivision Standards. All roads In new subdivisions shall either be constructed to a standard acceptable for inclusion in the County maintained system or the subdivision shall be part of a special Road district or a homeowners association in a planned unit development. FINDINGS: The applicant is proposing to construct the new roads within the subdivision to 1974 County rural local road standards. The County Road Department has indicated to staff that the proposed subdivision application was received after the current moratorium on adding any additional roads into the County maintained system; therefore, all roads proposed in the K - Barr Estates subdivision will not be eligible for addition to that system. Therefore, as a condition of any approval, the applicant shall record a Road Maintenance Agreement, acceptable to the County Road Department, prior to final plat approval. B. Improvements to Public Rights of Way. 1. The developer of a subdivision or partition will be required to improve all public ways that are adjacent or within the land development. 2. All improvements within public rights of way shall conform to the improvement standards designated in DCC Title 17 for the applicable Road classification, except where a zoning ordinance sets forth different standards for a particular zone. FINDINGS: The proposed subdivision road shall be constructed to the 1974 County rural local road standard for subdivisions, or to current Fire District emergency access standards, whichever is stricter. While Gribbling Road wilt be used as access road to the subdivision, the impact of the proposed seven lots will not affect road safety. Accordingly, to the extent these standards are not required to assure adequate safe passage on public roads, they do not apply. C. Primary Access Roads. The primary access road for any new subdivision shalt be improved to the applicable standard set forth in MA07-5/TP06-983 Page 23 of 30 Hearings Officer Decision Table A. The applicable standard shall be determined with reference to the road's classification under the relevant transportation plan. For purposes of DCC 17.48.160 a primary access road is a road leading to the subdivision from an existing paved county, city or state maintained road that provides the primary access to the subdivision from such a road. FINDINGS: The primary access road for this subdivision is Gribbling Road, which is a County maintained road. D. Secondary Access roads. When deemed necessary by the County Road Department or Community Development Department, a secondary access road shall be constructed to the subdivision. Construction shall be to the same standard used for roads within the subdivision. FINDINGS: The County Road Department has not requested a secondary access road. F. Cul-de-sacs. Cul-de-sacs shall have a length of less than 600 feet, unless a longer length Is approved by the applicable fire protection district, and more than 100 feet from the center of the bulb to the intersection with the main Road. The maximum grade on the bulb shall be four percent. FINDINGS: As shown on the submitted site plan, the proposed cul-de-sac is approximately 1,558.41 feet long. No grade information has been provided regarding the proposed cul-de-sac bulb. PL-2•requires that cul-de-sacs not exceed 800 feet for rural subdivisions. Staff believes that the restriction on the length of cul-de-sac lengths is directly related to public health and safety for emergency vehicle uses. The Hearings Officer agrees. The applicant has stated that the Fire Marshal expressed "no concern with the proposed subdivision or cut -de -sac length due to the small number of dwellings in this subdivision'. The comment from the Fire District did not express any concerns. They simply state the cul-de-sacs must have an approved tum -around. The DCRFPD should provide a written acceptance of the proposed design and construction of the approximately 1,558.41 feet length for the cul-de-sac prior to final plat approval. E. TITLE 18 OF THE DESCHUTES COUNTY CODE, COUNTY ZONING. CHAPTER 18.16, EXCLUSIVE FARM USE ZONES. 1. Section 18.16.025. Uses Dermitted subiect to the special provisions under DCC 18.16.038. A. Dwellings customarily provided in conjunction with farm use (farm- related dwellings). FINDINGS: The applicants acquired the subject property after the property was designated A-1 (Exclusive Agriculture Zone). The subject property is located within an EFU zone and, consequently, the placement of dwellings is subject to review under this standard. As noted MA07-51 TP06-983 Page 24 of 30 Hearings Officer Decision above, there is no evidence that the lots will be developed with farm uses. Therefore, it is premature to assume that farm dwellings would be permissible. 2. Section 18.16.030, Conditional uses 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: Even if DCC 18.16.030 did not exist at the time the applicants acquired the subject property, the County had adopted the Deschutes County Comprehensive Plan of 1970 and Subdivision Ordinance No. PL -2 in 1970 and Deschutes County Zoning Ordinance PL -5 of 1972. The ordinances permitted "dwellings in conjunction with farm uses," and "nonfarm dwellings" although standards regarding high-value and non -high value soil type(s) on the subject property did not exist. The hearings officer concludes that the applicants must demonstrate either that the lots are suitable for agricultural activities and thus the dwellings will be farm dwellings, or that the site is not generally suitable for farm use and the dwellings are non-farm dwellings. That demonstration has not been made. 3. Section 18.16.050. Standards for dwellings in the EFU zones. Dwellings listed in DCC 18.16.025 and 18.16.030 may be allowed under the conditions set forth below for each kind of dwelling, and all dwellings are subject to the landowner for the property upon which the dwelling is placed, signing and recording in the deed records for the County, a document binding the landowner, and the landowner's successors in interest, prohibiting them from pursuing a claim for relief or cause of action alleging injury from farming or forest practices for which no action or claim Is allowed under ORS 93.396 or 30.397. FINDINGS: This requirement is a non-exempt regulation because there is no evidence to suggest that the recordation of such waivers reduces property values. The County Hearings Officer, in decisions rendered on the Stills (MP -05-21), McLean/Johnson (TP -06-971) and Hurtley (TP -06-974) applications concluded that the requirement above was not waived and was made a condition of approval. This same condition is warranted in this case. 4. Section 18.16.055. Land Divisions and 18.16.065. Subzones FINDINGS: The property owner was granted a Measure 37 waiver from those non-exempt land use regulations adopted after the purchase that resulted in a reduction of property value. Staff believes application of the land division criteria of DCC 18.16.055 and 18.16.065 would result in fewer potential lots and a reduction in property value and, therefore, these criteria should be waived. MA07-51TP06-983 Page 25 of 30 Hearings Officer Decision 5. Section 18.16.060, Dimensional Standards A. The minimum parcel size for divisions of irrigated parcels created subject to DCC Title 17 shall be as specified under DCC 18.16.065, "Subzones " B. The minimum parcel size for non -irrigated land divisions is as specified under DCC 18.16.055(C). C. The minimum lot area for all uses permitted by DCC 18.46.030(G) through (CC) shall be that determined by the Planning Director or Hearings Body to carry out the intent and purposes of ORS 215, DCC Title 18 and the Comprehensive Plan. In no case shall lot areas be less than one acre. . Each lot shall have a minimum street frontage of 50 feet. E. Building height No building or structure shall be . erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. FINDINGS: The property owner was granted a Measure 37 waiver in Board of Commissioners Order No. 2005-110 from those non-exempt land use regulations adopted after October 21, 1974 that resulted in a reduction of property value. The original Measure 37 claim submitted by the applicant requested approval for the creation of seven (7) lots, containing five (5) gross acres each. Except for the frontage standards of 18.16.060(D) and the building height restriction of 18.16.060(E), the standards listed in DCC 18.16.060(A -C) do not apply. Compliance with the frontage standards and building height restriction do not reduce the property value for this proposed subdivision. In addition, the more restrictive setback distances of PL -2 and PL -5 apply, as they were in effect at the time the applicants acquired their property and were not waived. 6. Section 18.16.070. Yards. A. The front yard shall be 40 feet from a property line fronting on a local street, 60 feet from a property line fronting on a collector and 100 feet from a property line fronting on an arterial. B. Each side yard shall be a minimum of 25 feet, except that for nonfarm dwelling proposed on parcels or lots with side yards adjacent to a property currently employed in farts use, the side yard shall be a minimum of 100 feet C. Rear yards shall be a minimum of 25 feet, except that for nonfarm dwellings proposed on parcels or lots with rear yards adjacent to a property currently employed in farm use, the rear yard shall be a minimum of 100 feet MA07-5/TP06-983 Page 26 of 30 Hearings Officer Decision D. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. FINDINGS: The property owner was granted a Measure 37 waiver from those non-exempt land use regulations adopted after the purchase that resulted in a reduction of property value. Staff has reviewed the current 100 -foot setback requirement for non-farm dwellings against the modified tentative plat drawing for the proposed subdivision. This type of setback distance for non-farm dwellings from adjacent property currently employed in farm uses or receiving farm deferral (identified as Tax Lots 100, 600, 700, 900 and 1000) appears to restrict future dwelling locations to within building envelopes available on the proposed lots. Although a building envelope established in compliance with the increased setback distances would permit a dwelling to be constructed on the site, Staff believes that this 100 -foot setback restricts the option of future lot purchasers to place dwellings on the lots created, therefore, may contribute to a potential reduction in value of the applicant's property. The Hearings Officer, in Hurtley (TP -06-974) determined that "....since the 100 foot setbacks are required by state law to protect farm activity from conflicts with non-farm dwellings, I find that both the state's waiver and the fact the dwellings in the subdivision would not be non-farm dwelling means that these setbacks are not applicable to the proposed subdivision." However,Hurt/ey does not control here, because the farm dwelling/nonfarm dwelling distinction had been created by statute in 1973. The hearings officer finds that if the proposed lots will be developed with farm dwellings, the 100 -foot setback does not apply, but if the lots are developed with nonfarm dwellings, each lot must be evaluated to see if a dwelling could be sited on it in compliance with the applicable standards. Staff notes that Deschutes County Board of Commissioners Resolution No. 1, signed June 17, 1970, adopted the "Comprehensive Plan to 1990" map of Deschutes County. This map identifies the subject property as Intensive Agriculture. Also, the County had adopted Subdivision Ordinance No. PL -2 in 1970 that identified rural subdivision regulations in effect and prior to the owner's purchase of the subject property. The proposed subdivision constitutes a rural subdivision, regulated under Section 302 of PL -2 and Sections 3.210 to 3.230 of PL -5 zoning ordinance, adopted in 1972 and prior to the applicant purchasing the property in October 21, 1974. PL -2 specffies (Section 302, Table 3, Page 16) that buildings in rural subdivisions are setback a minimum of 50 feet from a street. This 50 feet street setback distance is more restrictive than the existing EFU-ALFALFA (EFU-AL) Zone front yard of 40 feet. The more restrictive PL -2 minimum 50 feet building setback line from the proposed subdivision street should apply in accordance with the criteria of PL -2. Zoning Ordinance PL -5, Section 3.225, Yards, states the following: 1. A front yard shall be a minimum of 50 feet between a building or structure and the ultimate street right-of-way as adopted on the Comprehensive Plan or Official Map. 2. A side yard shall be a minimum of 10 feet, except that on a corner lots the side yard on the street side shall be a minimum of 50 ft. 3 A rear yard shall be a minimum of 50 feet. MA07-5/TP06-983 Page 27 of 30 Hearings Officer Decision The existing EFU-AL Zone, 18.16.070, side yard setback distance cited above is more restrictive than the PL -5 criteria; however, the applicant may choose to provide a greater side yard distance than the minimum 10 feet. Front and rear yard setback distances in PL -5 require a minimum of 50 feet. The criteria for minimum front and rear yard setback distances in PL -5 apply. F. DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT MEASURE 37 FINAL ORDER CLAIM NO. M118741 FINDINGS: This DLCD order was adopted and approved based upon the record, including FINDINGS and Conclusions set forth in the Final Staff Report and Recommendation of DLCD. DLCD Order Claim No. M118741 states that The Claim is approved as to laws administered by DLCD and the Land Conservation and Development Commission (LCDC) for the reasons set forth In the DLCD Report, and subject to the following terms: 1. In lieu of compensation under ORS 197.352, the State of Oregon will not apply the following laws to Delmar and Delores Kennel's partition of the 35 - acre property into 5 -acre parcels of to their development of a dwelling on each parcel: applicable provisions of Goal 3, ORS 215 and OAR 660, division 33, enacted or adopted after October 21, 1974. These land use regulations will not apply to the claimants only to the extent necessary to allow them to use the subject property for the use described in this report, and only to the extent that use was permitted when they acquired the property on October 21, 1974. The modification of this application proposes the creation of seven (7) parcels containing 5 acres each in accordance with this order. This proposal is consistent with the Order. IV. CONCLUSION: Based on the findings of facts and conclusions of law set out above, the hearings officer concludes that the applicant has not demonstrated that the proposed subdivision satisfies ORS 215.263 (1973 ed.) or statutes and case taw pertaining to the siting of dwellings on EFU land. Accordingly, this application is denied. If the hearings officer's decision is overturned on appeal, the hearings officer recommends the following conditions of approval: 1 Approval is based upon the creation of 7 lots as depicted in MA -07-5, as amended in the proceedings to establish a separate subdivision road access from Gribbling Road. Any substantial change to the approved plan will require a new application. The final plat review shall require an up-to-date title report. Alt persons with an ownership interest in the property shall sign the final plat or consent to partition. 2. The applicant shall obtain a site evaluation for each lot from the Deschutes County Environmental Health Division prior to final plat approval. 3. The dwellings shall be limited to 30 feet in overall height, unless a height exception is approved under section 18.120.040 of Title 18. MA07-51TP06-983 Page 28 of 30 Hearings Officer Decision 4. The applicant shall have a licensed land surveyor prepare a subdivision plat that conforms to Oregon Revised Statutes Chapter 92 and Title 17 of the Deschutes County Code. The final plat shall show the exact sizes for each lot. The final plat shall comply with the criteria of Central Oregon Irrigation District regarding easements, removal of water rights or approval of a Developer Irrigation Plan (DIP). The final plat shall contain a statement of water rights and be signed by an authorized representative from the irrigation district. Each lot shall contain at least 2.00 acres of water rights. 6. All ad valorem taxes, fees and other charges that have become a lien upon the entire parcel shall be paid. The final plat shall be signed by the County Assessor and County Tax Collector. 7. AH easements of record shall be shown on the final plat. 8. Access permits for the proposed lots shall be obtained prior to final plat approval. 9. The applicant/property owner shall sign and record the waiver listed under 18.16.050 for adjacent farm and forest uses, prior to final plat approval. 10. The subdivision name shall require review and approval by the County Surveyor. 11. All road names shall require review and approval from the County Property Address Coordinator. 12. The front yard and rear yard setback distances shall be a minimum of 50 feet in accordance with the criteria of PL -2. Side yard setback distances shall meet the minimum setbacks under section 18.16.070. The 100 -foot setback from farm uses applies if (1) the dwellings sited on the lots are nonfarm dwellings, and (2) the imposition of the 100 -foot setback will not reduce property values. 13. All lot frontage distances shall be a minimum of 150 feet. 14. The maximum grade on any cul-de-sac bulb shall not exceed four (4) percent. 15. Road design and construction of the subdivision road shall be in accordance with minimum local rural road subdivision standards, consisting of a 60 -foot wide right of way width, 28 foot wide cinder of equivalent surfacing, and six inches of aggregate depth, as listed in Table 3 of Subdivision Ordinance PL -2, adopted September 9, 1971, or Fire District Emergency access standards, whichever is strider. The portion of the subdivision road from the western boundary of Lot 1 to the cul-de-sac terminus may be paved with two inches of AC for a 20 -foot road width in lieu of aggregate surfacing. All road design and construction shall be approved by the County Road Department and the Fire District prior to commencement of construction. 16. The applicant shall be responsible for the maintenance of the subdivision road. The applicant shall record a road Maintenance Agreement with the County Clerk outlining the maintenance responsibilities of the road. The agreement shall be reviewed and approved by the County Road Department prior to recording. MA07-5/TP06-983 Page 29 of 30 Hearings Officer Decision 17. The domestic water system for the subdivision shall be provided in accordance with DCC 17.36.300. If Avion Water District does not provide domestic water to the subdivision, prior to final plat approval, the applicant shall provide a detailed report regarding available ground water and an engineered water distribution system design prepared by a registered professional engineer and/or hydro -geologist for any community water system. The applicant shall provide written authorization and approval from the State Health Department and Watermaster District 11 for any proposed community water system and submit the written document to the Planning Department prior to issuance of any building permits. 18. Prior to final plat approval, the applicant shall obtain documentation from telephone and electrical power providers serving the subject property detailing what, if any, utility easements exist or will be required on the subject property. All required and existing easements must be shown on the final plat. 19. Prior to final plat approval, the applicant shall provide written documentation to the Planning Department that Deschutes County Rural Fire Protection District #2 has inspected and approved (1) any designated water supply for fire prevention purposes as required in 2004 Oregon IFC and (2) approved the cul-de-sac length of.the subdivision road. 20. Applicable park development fees in the amount of $2,100 shall be paid prior to final plat approval. 21. The applicant shall submit a request for the subdivision road to be dedicated in accordance with DCC 17.52 and receive County acceptance of the dedication prior to final plat approval. 22. There shall be no direct road access to the subdivision from K -Barr Road. Dated this 6 of October, 2007. Mailed this of October, 2007. Hearings Officer THIS DECISION IS FINAL UNLESS APPEALED WITHIN 12 DAYS OF THE DATE OF THIS DECISION. MA07-5/TP06-983 Hearings Officer Decision Page 30 of 30 0-1E S Community Development Department 0 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/ DESCHUTES COUNTY PLANNING DIVISION STAFF REPORT The Deschutes County Hearings Officer will hold a Public Hearing on July 17, 2007 at 6:30 P.M. in the Barnes and Sawyer rooms of the Deschutes Services Building located at 1300 NW Wall Street in Bend, to consider the following request: FILE NUMBERS: MA07-5/TP06-983 SUBJECT: The Applicant requests approval of a Tentative Plat for a 7 Lot Subdivision in the Exclusive Farm Use - Alfalfa Zone (EFUAL). APPLICANT/ PROPERTY OWNER: Delmar and Dolores Kennel 61405 K -Barr Road Bend OR 97701 AGENT: Helen Eastwood Bryant, Lovlien & Jarvis, PC PO Box 1151 Bend OR 97709 STAFF CONTACT: Chris Bedsaul, Associate Planner I. APPLICABLE CRITERIA: Title 17 of the Deschutes County Code, Partitions. 17.16, Approval of Subdivision Tentative Plans and Master Development Plans 17.16.115, Traffic Impact Studies 17.36, Design Standards 17.44, Park Development 17.48, Design and Construction Specifications Title 18 of the Deschutes County Code, County Zoning. 18.16, Exclusive Farm Use (EFU) Zones 18.16.030, Conditional uses permitted - high value and nonhigh value farmland 18.16.050, Standards for dwellings in the EFU zones 18.16.055, Land divisions 18.16.060, Dimensional standards MA07-5 Staff Report Quality Services Performed with Pride Page 1 of 35 18.16.065, Subzones 18.16.070, Yards Oregon Revised Statutes 215.417 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. Deschutes County Subdivision Ordinance No. PL -2 passed and adopted on September 9, 1970 by the Deschutes County Board of Commissioners and following a 21 day appeal period becoming effective on October 1, 1970. Deschutes County Zoning Ordinance No. PL -5 passed and adopted December 2, 1971 by the Deschutes County Board of Commissioners and following a 21 day appeal period becoming effective on January 1, 1972. Deschutes County Board of County Commissioners Order No. 2005-110 has waived non- exempt Deschutes County regulations in effect after October 21, 1974. The State of Oregon waived the state restrictions on parcel sizes and the establishment of one dwelling on each of the resulting parcels under Statewide Planning Goal No. 3, ORS 215, and OAR 660, Division 33, enacted or adopted after October 21, 1974. II. BASIC FINDINGS: A. LOCATION: The subject property is located at 61425 K -Barr Road, Bend. It is identified on Deschutes County Assessor's map no. 18-13-10, as tax lot 800. B. LOT OF RECORD: The subject property is a lot of record under Title 18 of the Deschutes County Code. Lot of Record is defined in DCC 18.030 as "A lot or parcel at least 5,000 square feet in area and at least 50 feet wide, which conformed to all zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel was created ..." The subject property ownership was acquired by Mr. and Mrs. Kennel through a contract on October 21, 1974 that partitioned 35.0 acres from the parent parcel of Tax Lot 3405, containing 134 acres, as noted in Volume 160, Page 325, dated August 23, 1968. County Survey 04271, dated July 29, 1975, established monuments for the boundary of subject property and County Assessor records identify a Warranty deed recorded for Mr. and Mrs. Kennel in Volume 177, Page 2497, dated January 25, 1989. PL -2, effective October 1, 1970, governed "the subdivision of land, for the preparation, procedures and approval of subdivision plats and improvements, and providing penalties for the violation thereof." PL -2 required that a subdivision approval be granted by Deschutes County when Mr. and Mrs. Kennel acquired the subject property on October 21, 1974. The land division that created the subject property was not a subdivision and thus was not regulated by PL -2. In 1974 the property was zoned A-1, Exclusive Agriculture, with a 5 -acre minimum lot size. The property complied with the requirements of the A-1 zone. MA07-5/TP06-983 Page 2 of 35 Staff Report C. ZONING: The subject property is zoned Exclusive Farm Use -Alfalfa Subzone (EFUAL). D. PROPOSAL: The applicant previously submitted TP06-983 for the subject property that included a design to create 12 lots, however, due to applicant concerns for compliance with the criterion of PL -2 and PL -5, the applicant has modified the original subdivision lot design of TP06-983 to reduce the number of proposed lots, lot configuration and relocate the proposed access road serving the subdivision. The applicant is proposing to create a 7 -lot subdivision within 35.15 acres according the applicant's surveyor. Staff notes there is a stated conflict between the applicant's stated acreage and County Assessor Records (both listing 35.00 acres) and County GIS LAVA -5 program (listing 35.26 acres) for the subject property. Staff has determined the surveyor acreage as being more accurate and will use 35.15 acres for any acreage references on the subject property. The applicant has submitted a modified tentative plat drawing depicting the proposed 7 lots, with a newly constructed road serving the property extending westerly along Timland Lane to Gribbling Road. The proposed lots range in size from 5.00 to 5.18 gross acres. E. SITE DESCRIPTION: The subject property is 35.15 acres in size and is located south of K -Barr Road. The property includes a farm accessory barn, machine shed, lean to and aircraft hangar with ground cover consisting of native vegetation, grasses and juniper trees. The property contains 21.6 acres of irrigation and is within the Central Oregon Irrigation District. F. PUBLIC AGENCY COMMENTS: The Planning Division mailed a Notice of Application to several public agencies and received the following comments: Department of Land Conservation and Development: No response Deschutes County Environmental Health Division: Need an approved site evaluation for each lot. Property Address Coordinator: If this application is approved, the applicant shall contact the property address coordinator for new addresses. County Assessor's Office: Currently under deferral. County Building Division: No comment. County Senior Transportation Planner: No traffic analysis is needed given the low volumes on both Timland Lane and Gribbling Road. However, the County code requires a road that provides access to a subdivision meet County standards, which means pavement. County Road Department: "According to CDD 17.16.105, "No proposed subdivision shall be approved unless it would be accessed by roads constructed to County Standard and by roads accepted for maintenance responsibility by a unit of local or state government" Gribbling Road is an old established County Road maintained by the County but since it is a gravel surface, it is not up to current County standard in that it is not paved, either out north to Highway 20 or Ward Road to Gosney Road or Rickard. This application will be required to pave the cul-de-sac and Gribbling Road to County standard standards either to Highway 20 to the north of Timland. Land or to Gosney Road via Ward Road or Rickard Road to the south. MA07-5/TP06-983 Page 3 of 35 Staff Report Deschutes County Rural Fire Protection District #2: Dan Derlacki, Fire Inspector commented the following fire regulation would apply; X Fire Safety During Construction — 2007 IFC Chapter 14 Approved fire department access roads, required water supply, fire hydrants, and safety precautions shall be made available as soon as combustible materials arrive on site. X Water Supply - 2007 Oregon IFC Appendix B The required water supply for fire suppression for this building shall be 1000 gallons per minute at 20 psi residual pressure. This flow requirement is based on Type VB building construction not to exceed 3600 square feet. X Fire -Flow Requirements for Buildings — 2004 Oregon IFC Appendix B A reduction of fire flow maybe allowed for this project if an approved fire suppression system is installed. No commodities, furniture, goods, merchandise, wares, materials or possessions shall be stored or used within this structure until the fire sprinkler or suppression system is completed, tested and operational, unless otherwise approved by both, the Fire Marshal and Building Official. X Water Supply - 2004 Oregon IFC Section 508 and NFPA 1142 An approved water supply capable of supplying the required fire flow for fire protection shall be provided to premises upon which facilities, buildings or portions of buildings are hereafter constructed or moved into or within the jurisdiction. See the City of Bend Fire Marshal for approval of firefighting water supply. X Obstruction & Protection of Fire Hydrant — 2007 Oregon IFC 508.5.4 through 508.5.6 A 3 -foot clear space shall be maintained around the circumference of fire hydrants. When exposed to vehicular damage, concrete curbing, sidewalks, or 4 inch concrete filled bollards placed 3 feet from hydrants shall suitably protect fire hydrants. Hydrants shall be coated with approved red paint color and markings. X Premises Identification - 2007 Oregon IFC 505.1 Approved numbers or addresses shall be placed on all new and existing buildings in such a position as to be plainly visible and legible from the street or road fronting the property. Said numbers shall contrast with their background and visible at night. Dwellings and Foster Homes that are located off of street frontage shall post a visible approved reflective address sign at the entrance to their driveway. (Signs are available at local Fire Stations) X Street or Road Signs - 2007 Oregon IFC 505.2 Streets and roads shall be identified with approved signs. Signs shall be of an approved size and weather resistive construction. MA07-5/TP06-983 Page 4 of 35 Staff Report X Fire Lanes - 2007 Oregon IFC 503.3 Approved signs or other approved notices shall be provided for fire apparatus access roads to identify such roads or prohibit the obstruction thereof. Such signs or notices shall be kept in legible condition at all times. Fire lane curbs shall be painted bright red with white letters. The stroke shall be 1 inch with letters 6 inches high to read "No Parking Fire Lane". Spacing for signage shall be every 50 feet. X Fire Apparatus Access Roads (General) - 2007 Oregon IFC Section 503 and Appendix D Fire apparatus access roads shall be placed within 150 of all exterior walls of the first floor of all buildings. Fire apparatus access roads shall have an unobstructed width of not less than 20 feet designed with an approved driving surface to support the imposed GVW of 60,000 lbs. and a vertical clearance of not less than 13 feet 6 inches. Turning radius shall not be less than 45 feet and gradient shall not exceed 12 percent unless the authorities having jurisdiction approve a variance. Dead-end access roads in excess of 150 feet in length shall be provided with approved provisions for the turning around of fire apparatus. A cul- de-sac, hammerhead or other means for the turning around of fire apparatus may be approved. X Key Boxes - 2007 Oregon IFC Section 506 Key Box (Knox Box) for Fire Department access is required to be installed at any gate or barrier on fire apparatus access road. An application for the Knox Box is available by calling the Fire Prevention office at (541) 322-6309. X Smoke Detection - ORS 479.255 Smoke detectors shall be in compliance with Oregon State Laws and the International Building Code. Oregon IFC 907.2.10.1.2 Central Oregon Irrigation District: COID verified in a phone conversation with staff on June 18, 2007 that the comments provided for application TP06-983 would also apply to this application and consist of the following; The subject property contains a 21.60 acre water right. There shall be no development or improvements made to those lands possessing a water right without those rights first being removed via a permanent water rights transfer done through COID. The 21.60 acres of water right must be transferred off the subject lands. If these water rights are to be retained, the District will require that a Developer Irrigation Plan (DIP) be completed with COID. The delivery system (complete with water rights assignment, easements, headgates, and points of delivery), shall be shown on the improvement and plat plans for each parcel. Each delivery shall install an approved measuring device. COID has its D-4 lateral which meanders through the referenced property. The easement for D- 4 is 30 feet in width (15 feet each side of centerline). D-4 will need to be piped according to COID specifications. A piping agreement and crossing license will need to be completed prior to COID signing off on improvement and plat plans. There shall be no encroachment of any kind to this easement without written permission from COID. MA07-5/TP06-983 Page 5 of 35 Staff Report Tail water run off from the subject property or from adjacent property shall be the responsibility of the subdivision developer. Any irrigation conveyance, COID or private, which passes through the subject property, shall not be encroached upon without written permission from COID. Irrigation water is unsafe for human consumption and should not be use for drinking or other domestic purposes such as bathing, showering, dishwashing, cooking or maintaining oral hygiene. COID will require the following as conditions of approval prior to issuance of any permits: 1. Removal of 21.60 acres of water right, unless a DIP is completed 2. Any required piping shall be in accordance with COID specifications. 3. Piping agreement shall be signed and recorded. 4. A crossing license shall be signed and recorded. 5. All irrigation water crossings shall be verified and appropriate action shall be approved by COID. 6. All COID fees shall be paid. Watermaster: No response G. PUBLIC COMMENTS: The Planning Division mailed Notice of Public Hearing for this application to all property owners within 750 feet of the subject property on June 1, 2007. A Notice of Public Hearing for this application was published in the Bend Bulletin on June 17, 2007. The applicant provided a signed and notarized Land Use Action Affidavit stating that the sign was posted on May 27, 2007 where it can be clearly seen from K -Barr Road. No written comments from the public regarding these notices have been received prior to completion of this staff report. H. REVIEW PERIOD: The applicant previously submitted TP06-983; however, due to significant issues regarding proposed access and lot sizes, the applicant has amended TP06- 983 and submitted this Modification of Application on May 16, 2007. This application was accepted as complete on May 22, 2007. The applicant has acknowledged in a letter, dated May 16, 2007 that due to the modification and additional notification of neighbors, the 150 -day decision period for TP06983 will restart upon acceptance of this application. The 150 -day decision period ends October 19, 2007. I. MEASURE 37: The property owner has received approval of a waiver of land use regulations from Deschutes County, which is listed under Board of County Commissioners Order No. 2005-110, signed by the Board on December 5, 2005 and recorded with the County Clerk, as document 2006-15162, on March 6, 2006. Section 2 on page 2 of this Order states the following: The Board hereby elects to not apply zoning and nonexempt land use regulations to the subject property described in Exhibit "B" in lieu of payment of just compensation under Ballot Measure 37. Claimant is hereby authorized to use the subject property as permitted at the time he acquired the property. Claimant may apply for a use of the subject property consistent with the zoning and regulations in effect at the time he acquired the property. That use shall be permitted if the subject property fully complies MA07-5/TP06-983 Page 6 of 35 Staff Report with all regulations in effect on October 21, 1974. The Community Development Director is hereby authorized to determine the effects that any other non-exempt regulations in effect on this date would have on Claimant's proposed development differently than current non-exempt regulations. However, the current procedural regulations for land division and development applications and approval, including, but not limited to setbacks, access, height, and landscaping requirements shall be applied Additionally, the applicant received approval of a Measure 37 claim from the State of Oregon through a Final Order for Claim No. M118741, dated May 19, 2006, from the Director of the Department of Land Conservation and Development (DLCD). The DLCD Order cites that the "State would not apply laws to the subject property for the partition of the 35 -acre property into 5 -acre parcels. The state's regulations enacted or adopted after October 21, 1974 for the subject property will not apply". Staff is not aware of any other county land use regulations that would be applicable to the applicant's property prior to their purchase of the subject property on October 21, 1974. III. CONCLUSIONARY FINDINGS: A. APPLICABLE REGULATIONS UNDER MEASURE 37 WAIVERS FINDINGS: As discussed in the Basic Findings above, the county and state found the property owner purchased the subject property on October 21, 1974. Staff finds 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 October 21, 1974, and does the proposed subdivision comply with them; 2. What, if any, current non-exempt land use regulations apply to the proposed subdivision because they would not have the effect of reducing the value of the subject property, and does the proposed subdivision comply with applicable current non-exempt regulations; and 3. What, if any, current exempt land use regulations apply to the proposed subdivision, and does the proposed subdivision comply with the current exempt regulations identified as applicable? These questions are addressed in the FINDINGS below. 1. What, If Any, Land Use Regulations Were In Effect as of October 21, 1974? FINDINGS: The record indicates that as of October 21, 1974 the following county land use regulations were in effect: a. The Deschutes County Comprehensive Plan adopted by the Deschutes County Board of Commissioners on June 17, 1970 by Resolution No. 1; b. PL -2, the Deschutes Subdivision Ordinance passed and adopted by the Deschutes County Board of Commissioners on September 9, 1970; MA07-5/TP06-983 Page 7 of 35 Staff Report c. PL -5, the Deschutes County Zoning Ordinance, adopted by the Deschutes County Board of Commissioners on December 2, 1971; and d. The official zoning map for Deschutes County, adopted on November 15, 1972. In the Hearings Officer's previous decision in Hurtley (TP -06-974) which involved a post - Measure 37 subdivision application, the Hearings Officer found: (1) the 1970 comprehensive plan and plan map did not establish a minimum lot size for subdivisions in EFU Zones; (2) PL - 2 authorized creation of "rural subdivisions" on land designated agricultural and established a minimum lot size of 5 acres for lots in such subdivisions in the absence of a zoning ordinance; (3) because the county's official zoning map was not adopted until November 1972, the 5- and 10 -acre minimum lot sizes established by PL -5 for the A-1 and A-2 Zones, respectively, (pre- EFU agricultural zones) were not applicable to EFU-zoned property prior to that date; and (4) the 5 -acre minimum lot size for "rural subdivisions" under PL -2 was applicable to EFU-zoned land until November 15, 1972. Because Mr. and Mrs. Kennel acquired the subject property in October 21, 1974, the provisions of the county's zoning ordinances PL -2 and PL -5 apply to the proposed subdivision. In addition, as noted in the state's Measure 37 waiver set forth in the FINDINGS above, provisions of ORS chapter 215 also were in effect in October 21, 1974. 2. Does the Applicants' Proposed Subdivision Comply With the Regulations Identified as Applicable in October 1974? FINDINGS: a. The 1970 Comprehensive Plan and Plan Map. The 1970 comprehensive plan describes its purpose at page 48 in pertinent part as follows: The Comprehensive Plan for Deschutes County provides policy guidance with respect to the general direction, extent and character of urbanization, transportation facility development and the management of resource areas of the County for the next 20 years. This part of the report describes the proposals of the Comprehensive Plan on a County -wide basis. It is important to note, however, that proposals are shown • eo • ra • hicall on a multi -colored Plan desi • n entitled "Com • rehensive Plan to 1990 — Deschutes County, Oregon" which is included in the packet for this report. The packet also includes black and white plan designs for the four major urban centers of the County. This report and the accompanying plan designs together comprise the Comprehensive Plan for Deschutes County. (Underscored emphasis added.) With respect to agricultural lands, at page 52 the plan states in pertinent part: Agriculture The intent of agricultural land use proposals of the Plan is to preserve and enhance the County's agricultural character and economic base, conserve areas of high quality soils and production, and aid in achieving orderly urban expansion. Two classes of agricultural land are indicated on the Plan. Intensive agriculture is shown for areas which are now under irrigation or are capable of being irrigated and where Class I and Class II soils are involved. Extensive MA07-5/TP06-983 Staff Report Page 8 of 35 agriculture is shown for those areas of the County where the primary agricultural activity involves grazing for sheep and beef cattle production. It is proposed that recreation subdivisions be discouraged within both the intensive and extensive agricultural land areas. The 1970 comprehensive plan map is a color -coded map that designates every area of the county within one of three main use categories — "Urban Land Use," "Rural—Resource Use," and "Forest Management Zones" — and within one of several subcategories within each of these main categories. The "Rural -Resource Use' category includes the following five sub- categories: • Intensive Agriculture; • Extensive Agriculture; • Private Forest Management; • Parks and Recreation Areas; and • Recreation -Residential. According to the plan map, the subject property is located within the color -coded area labeled "Intensive Agriculture." Finally, on pages 90-91 the 1970 comprehensive plan addresses its relationship to the county's development regulations in pertinent part as follows: Zoning * * * A zoning ordinance is being drafted as part of the County's current planning program, and will consist of a map establishing the boundaries of various land use districts and a set of regulations and administrative procedures which govern the activities and standards of development permitted within the districts. The zoning ordinance should establish a definite relationship between land use regulations and polices and proposals of the Comprehensive Plan; it must provide sufficient flexibility to accommodate changing conditions; safeguards to assure the protection of individual liberty and the right of property and to avoid unjust discrimination must be balanced with the necessity for public regulation in the public interest. (Underscored emphasis added.) Subdivision Regulations In contrast with a zoning ordinance, which regulates land use, the subdivision ordinance sets forth specific standards of design and physical improvements for the development of land as a subdivision. A subdivision ordinance has been drafted and reviewed by the Citizens Advisory Committee for Planning. It prescribes standards for street and lot design, sewer and water service, storm water drainage, street lighting and fire protection facilities. Special requirements are included for reserving sites for public use and for conserving natural assets of the land. (Underscored emphasis added.) MA07-5/TP06-983 Page 9 of 35 Staff Report The provisions of the 1970 comprehensive plan do not create mandatory approval criteria for the applicant's proposed subdivision. Rather, Staff believes the above -quoted language makes clear this plan — like the current county comprehensive plan — simply creates the policy framework for the land use regulations established in the zoning and subdivision ordinances which became effective following the board's adoption of the comprehensive plan. Staff further believes the comprehensive plan map placed a designation on the subject property — i.e., "Intensive Agriculture" — but did not authorize or limit uses on the subject property based on that designation. b. PL -2, the Subdivision Ordinance. Section 102 of PL -2 states that its purposes include aiding in the implementation of the county's comprehensive plan, and assuring lots are of sufficient size and appropriate design for the purposes for which they are to be used. PL -2 includes the following additional introductory provisions: Section 106 Relationship to Comprehensive General Plan A subdivision plat shall conform to the policies of the Comprehensive General Plan and elements thereof as adopted by the County Board of Commissioners, with respect to the type and intensity of land use, population densities and distribution, locations and sizes of public areas, and rights-of-way and improvement of streets. (Underscored emphasis added.) Section 107 Relationship to Official Map A subdivision plat shall conform with the plans for the location, widening or extension of streets and highways and for other projects of a similar nature as shown on an Official Map as adopted by the Board of County Commissioners. In the absence of an Official Map, the alignments of streets or highways shall conform generally with the alignments of streets or, highways shown on the Comprehensive General Plan or an element thereof. Section 108 Relationship to Zoning Ordinance A subdivision plat shall conform in all respects with applicable regulations of the zoning ordinance. (Underscored emphasis added.) Section 109 Construction and Definitions * * * C. Definitions * * * 27. Subdivision — An act of subdividing land or a tract of land subdivided as defined in this Section. * * * d. Rural Subdivision — A subdivision located in an area designated by the Comprehensive General Plan for MA07-5/TP06-983 Page 10 of 35 Staff Report agricultural or open use with lots having a gross area ranging from five (5) acres to ten (10) acres. Where it is intended to divide land into 10 acre lots by Sectional breakdown, but where such lots may result in an actual area of less than the full 10 acres because of a smaller than normal Section, Township or portion thereof, the dividing of such land shall not be considered a subdivision. (Underscored emphasis added.) Section 302 of PL -2 provides as follows: A. Minimum Lot Area, Width, Depth, Frontage and Building Setback Lines: The minimum area, width, depth and frontage of lots and the minimum building setback line from streets shall conform with the requirements of the applicable zoning districts as provided in the zoning ordinance when applicable. In the absence of a zoning ordinance, or where provisions of the zoning ordinance have not been applied to the property to be subdivided, the area, width, depth, frontage of lots and building setback lines shall conform with the standards prescribed in Table 3 of this Section. Table 3 Minimum Area, Width, Depth, Frontage and Setback Lines of Lots Type Of Subdivision Minimum Area Minimum Width Minimum Depth *Minimum Street Frontage Min. Building Setback Line From Street Urban 7,000 sq. ft. 70' 100' 60' 25' Suburban 20,000 sq. ft. 80' 150' 80' 25' Rural Recreation 1 acre 150' 200' 100' 50' Rural 5 acres 300' 400' 150' 50' *The minimum frontage on curved streets or cul-de-sacs shall be 30 feet for Urban and Suburban Subdivisions and 60 feet for Rural Recreation Subdivisions. The above -quoted provisions of PL -2 authorized the creation of "rural subdivisions" on land designated "agricultural" by the comprehensive plan map. Staff believes that Section 302 of PL -2 established a minimum lot size of 5 acres for rural subdivisions. The zoning ordinance of PL -5 was adopted December 2, 1971 and was effective January 1, 1972, map adopted November 11, 1972, before Mr. and Mrs. Kennel purchased the subject property. The provisions of PL -2 established a five -acre minimum lot size for rural subdivisions — i.e., subdivisions on land designated "agricultural" like the subject property -- and established the minimum width, depth, street frontage and street setback of 300 feet, 400 feet, 150 feet and 50 feet, respectively. All of the modified and reconfigured seven (7) lots in the K -Barr Estates subdivision are in accordance with minimum lot size or minimum lot depth established in PL -2. The criteria of this section have been met. MA07-5/TP06-983 Staff Report Page 11 of 35 FINDINGS: a. PL -5, Deschutes County Zoning Ordinance Section 2.020 of PL -5 established 16 zone classifications including two agricultural zones: the Exclusive Agricultural Zone (A-1), and the General Agricultural Zone (A-2). Sections 3.220 and 3.225 of PL -5 established minimum standards for lots in the A-1 Zone, and Sections 3.260 and 3.265 established minimum standards for Tots in the A-2 Zone. These standards are set forth in the following chart: Zone Minimum Lot Size Minimum Lot Width Minimum Street Frontage Minimum Lot Depth A-1 5 acres 300' 150' 400' A-2 10 acres 300' 150' 600' Under Sections 3.210 and 3.250, respectively, the A-1 and A-2 Zones permitted outright "buildings and uses customarily provided in conjunction with farming." The record indicates the subject property was zoned A-1 when Mr. and Mrs. Kennel acquired it in October 1974. Therefore, the proposed subdivision must comply with the provisions of the A-1 Zone. The applicant's original proposal, TP06983, cites that the single-family dwellings on the subdivision lots would be dwellings in conjunction with farm use and the development would retain 21.6 acres of water rights on the subject property and to distribute the water rights equally throughout the property so that each subdivision lot has a proportioned acreage of irrigation water. The applicants argue, and Staff agrees, that the proposed lots will be very similar to rural subdivisions, lots or parcels created in the 1970's. Staff believes that these lots sizes and water rights will facilitate future agricultural use of the proposed subdivision lots ("hobby farms"), consequently the proposed dwellings would be in conjunction with farm use and permitted outright under PL -5, and therefore the proposed dwellings did not require any land use approval under PL -5. Staff notes that Central Oregon Irrigation District (COID) has stated that "There shall be no development or improvements made to those lands possessing a water right without those rights first being removed via a permanent water rights transfer done through COID. The 21.60 acres of water right must be transferred off the subject lands." COID also states that if these water rights are to be retained, the District will require that a Developer Irrigation Plan (DIP) be completed with COID. A condition of approval in compliance with COID criteria for removal of the water rights would restrict the 5 -acre lots to dry land farming practices only. Staff believes that the 5 -acre lots could establish farm uses as defined in ORS 215.203, however, the farm use practices on unirrigated lots created would be significantly limited. In order to ensure that all dwellings are "customarily provided in conjunction with farm use", the applicant should be required to retain a minimum of 2 acres of water rights on each lot by filing a DIP with COID. Because all proposed subdivision lots will be a minimum of 5 gross acres in size, Staff believes that they satisfy the minimum lot size in the A-1 Zone. The tentative plan shows the configuration of all seven (7) lots will exceed 300 feet in width, 400 feet in depth and at least 150 feet of street frontage in accordance with the criterion of PL -5. Therefore, all of the proposed lots satisfy the minimum lot dimensions in the A-1 Zone. MA07-5/TP06-983 Page 12 of 35 Staff Report Section 3.225 of PL -5 establishes the following minimum setbacks: • a 50 -foot front yard setback from the street; • a 10 -foot side yard setback except for a side yard adjacent to a street which must be 50 feet; and • a 50 -foot rear yard setback. The proposed 5 -acre Tots will be of sufficient size to allow single-family dwellings to be constructed that meets these minimum setbacks. b. ORS 215 (1973 Edition) ORS 215.203, Adoption of zoning ordinances establishing farm use zones; "farm use" defined. The provisions of ORS 215.203, in effect in October 1974 when Mr. and Mrs. Kennel acquired the subject property, provided in pertinent part: (1) The following nonfarm uses may be established in any area zoned under ORS 215.010, 215.190 and 215.402 to 215.422 for farm use: * * * (e) The dwellings and other buildings customarily provided in conjunction with farm use, referred to in paragraph (a) of subsection (2) of ORS 215.203. ORS 215.243 Agricultural land use policy. The Legislative Assembly finds and declares that: (1) Open land used for agricultural use is an efficient means of conserving natural resources that constitute an important physical, social, aesthetic and economic as to all the people of this state, whether living in rural, urban or metropolitan areas of the state. (2) The preservation of a maximum amount of the limited supply of agricultural land is necessary to the conservation of the state's economic resources and the preservation of such land in large blocks is necessary in maintaining the agricultural economy of the state and for the assurance of adequate, healthful and nutritious food for the people of this state and nation. (3) Expansion of urban development into rural areas is a matter of public concern because of the necessary increases in costs of community services, conflicts between farm and urban activities and the loss of open space and natural beauty around urban centers occurring as the result of such expansion. MA07-5/TP06-983 Page 13 of 35 Staff Report (4) Exclusive farm use zoning as provided by law substantially limits alternatives to the use of rural land with the importance of rural lands to the public, justifies incentives and privileges offered to encourage owners of rural lands to hold such lands in exclusive farm zones. ORS 215.263 Review of land divisions in exclusive farm use zones; criteria for approval; exemption for court-ordered property dispositions. (2) Any proposed division of land included within an exclusive farm use zone resulting in the creation of one or more parcels of land less than 10 acres in size shall be reviewed and approved or disapproved by the governing body of the county within such land is situated. (3) If the governing body of a county initiates a review as provided in subsection (1) or (2) of this section, it shall not approve any proposed division of land unless it finds that the proposed division of land is in conformity with the legislative intend set forth in ORS 215.243 As discussed above, staff believes the dwellings on the proposed subdivision lots will be dwellings in conjunction with farm use. For the same reasons, staff believes they would satisfy the requirements of ORS 215.203, ORS 215.243 and ORS 215.263 that were applicable to the subject property in October 1974. For the foregoing reasons staff believes the applicants' proposed subdivision will create lots capable of meeting the requirements of ORS 215.203, ORS 215.243, ORS 215.263 and all of the subdivision lots meet all applicable standards established by PL -5 that applied to the subject property in October 1974 when Mr. and Mrs. Kennel acquired it. 3. What, If Any, Current Non-exempt and Exempt Land Use Regulations Apply to the Proposed Subdivision? FINDINGS: The provisions of Titles 17 and 18 of the Deschutes County Code, the current subdivision/partition ordinance and zoning ordinance, respectively, apply to the applicant's proposal to the extent application of these provisions does not result in a reduction in the value of the subject property, and to the extent they are less restrictive than the provisions of PL -5, Titles 17 and 18 are applicable to the proposed subdivision. As discussed in detail in the FINDINGS below, with a few exceptions, the provisions of Title 18 governing development of EFU-zoned land do not apply to the proposed subdivision because they would reduce the value of the subject property and therefore were waived by the county's Measure 37 order. As also discussed below, certain provisions of Title 18 that apply to the proposed subdivision deal with health and safety and therefore are exempt from Measure 37. Finally, as discussed in the FINDINGS below the provisions of Title 17 do apply to the proposed subdivision because either they do not reduce the subject property's value or they are exempt from Measure 37. 4. Does the Applicants' Proposed Subdivision Comply with the Current Exempt and Non-exempt Regulations Identified as Applicable? FINDINGS: The proposed subdivision's compliance with applicable provisions of Titles 17 and 18 is discussed in detail in the FINDINGS below. MA07-5/TP06-983 Page 14 of 35 Staff Report B. TITLE 17 OF THE DESCHUTES COUNTY CODE. Chapter 17.16, Approval of Subdivision Tentative Plans and Master Development Plans. 1. Section 17.16.080, Tentative plan as a master plan. A. As an alternative to the filing of a master plan for phased development, the applicant may file a tentative plan for the entire development. The plan must comply with the provisions of DCC Title 17 for tentative plans. B. If the applicant proposed to phase development, he shall provide sufficient information regarding the overall development plan and phasing sequence when submitting the tentative plan. C. If the tentative plan is approved with phasing, the final plat for each phase shall be filed in accordance with . DCC 17.24.020 through 17.24.110. FINDINGS: The applicant has not proposed phasing for the subdivision, as shown on the modified tentative plat map. The map conforms to the requirements of Title 17 for a tentative plat map. The final plat for must conform to the requirements of chapter 17.24, which include recording a final plat within two (2) years of the approval date. 2. Section 17.16.100, Required findings for approval. A tentative plan for a proposed subdivision shall not be approved unless the Planning Director or Hearings Body finds that the subdivision as proposed or modified will meet the requirements of this title and Titles 18 through 21 of this code, and is in compliance with the comprehensive plan. Such findings shall include, but not be limited to, the following: A. The subdivision contributes to orderly development and land use patterns in the area, and provides for the preservation of natural features and resources such as streams, lakes, natural vegetation, special terrain features, agricultural and forest lands and other natural resources. FINDINGS: The applicant has not provided any detailed analysis of the land use patterns surrounding the subject property. The proposed modified subdivision design is for seven (7) lots in the EFU zone. Staff has reviewed an area within 2,640 feet of the subject property to establish what the existing land use patterns are in the nearby area surrounding the proposed subdivision. The analysis area contains 18 tax lots that are predominantly zoned EFUAL and EFUTRB to the north, east and south. The subject property's west boundary is adjacent to a designated Rural Residential (RR -10) Zone. There are 23 tax lots within the EFU zones that range in size from 4.80 to 161.06 acres, averaging 36.05 acres. Five (5) of the EFU lots are 4- 10 acres. Eighteen (18) of the EFU lots are over 10 acres. There are sixteen (16) tax lots within the adjacent RR -10 zone that range in size from 9.00 to 51.42 acres, averaging 19.54 acres. Three (3) of the RR -10 Tots are less than 10 acres in size. Eleven (11) RR -10 lots are 13.50 to 19.89 acres in size and two are over 20 acres. These surrounding lots in the EFU and RR -10 Zones are predominantly farms, hobby farms, and rural residences. MA07-5/TP06-983 Page 15 of 35 Staff Report The County Hearings Officer, in the FINDINGS and Decision for TP -06-974, found that a subdivision created under a Measure 37 claim and imposition of this subdivision criterion to preclude the proposed subdivision because of smaller lot sizes, would result in a reduction in value of the subject property by reducing the number of potential subdivision lots, and therefore this part of the "orderly development" approval criterion was waived by the county's waiver order to the extent its application would result in a reduction in property value. This criterion also requires that a proposed subdivision provide for the preservation of natural features and resources such as streams, lakes, natural vegetation, special terrain features, agricultural and forest lands and other natural resources. Staff believes the proposed subdivision would adversely impact agricultural resources in the area by converting viable farmland to residential use. The following table describes two (2) soils on the subject property, including one (1) high-value agricultural soil representing approximately 10.5 acres or 33% of the subject property: Soil Classification Soil Name Description 36A Deskamp loamy sand, 0 tc percent slopes High-value farmland irrigated 58C Gosney-Rock outcrc Deskamp complex, 0 to percent slopes Not rated as significant fa land. According to Central Oregon Irrigation District, the subject property contains 21.6 acres of irrigation water applied to high-value and non -high value soils on the site. Staff believes that the high-value soil type is not the predominant soil on the subject property. Staff also believes that the preservation of agricultural land apparently has been waived by the State and the County; therefore, this criterion would be waived as well. Staff believes that the only significant natural features on the property include the few trees. There are no streams, lakes or other special terrain features. A portion of the property contains agricultural land as defined in DCC 18.04.030. B. The subdivision will not create excessive demand on public facilities and services, and utilities required to serve the development. FINDINGS: The proposed lots will not create any excessive demand on the public facilities and services for the area. The proposed lots will be of sufficient size to allow one dwelling per lot, along with the potential for accessory structures. The lots are to be served either by individual wells, a community well system or public water furnished by Avion Water District. Onsite septic systems will be established for each lot upon approval by the Deschutes County Environmental Health Department. The access roads designated to serve the subdivision are to be improved to comply with the County's rural local road standards for subdivisions. Fire protection will be from the Deschutes County Fire Protection District #2. Additionally, police services will be handled by the Deschutes County Sheriff's Office, which handles all of the rural county areas. These services address health and safety, and staff believes they are not waived by the State and County waivers, and do not reduce property values. The proposed subdivision will create additional traffic volume demand onto Gribbling Road; however, the County Road Department has determined that no traffic analysis is needed due to MA07-5/TP06-983 Page 16 of 35 Staff Report the low volume of projected traffic on Timland Lane and Gribbling Road. The proposed project should be required to meet AASHTO guidelines for intersection sight distance and stopping distance at the intersection of Gribbling Road and Timland Lane. Staff analysis regarding the Exaction and Rough Proportionality Principles. Dolan test: (1) The exaction must have an "essential nexus" to a "legitimate governmental interest" and (2) the exaction must be related in its nature and extent (i.e. roughly proportional) to the impacts of the development. An exaction is not a taking of property if it is properly justified and there must be a "rational nexus" with the proposed development. Staff relies on Dolan v. City of Tigard to serve as a basic reference for this analysis. Staff is aware that Oregon case law also provides that conditions requiring private parties to improve public rights-of-way are exactions. Staff has reviewed LUBA cases 2000-115, 2001-102, 2006-169 and Oregon Court of Appeals Case 2002-048 decisions that may also apply to this application regarding exactions or proportionality principles. Nexus: The proposed development of K -Barr Estates subdivision creates six (6) new Tots that will contribute to additional vehicle traffic onto Gribbing Road, which is the primary access route to Timland Lane and the subdivision. Staff must consider and weight whether and to what extent a condition to pave Gribbling Road to the nearest County or State standard road serves the needs of the subdivision and whether serving the general public needs in response to the public impacts of the development. Legitimate Governmental Interest: According to CDD 17.16.105, "No proposed subdivision shall be approved unless it would be accessed by roads constructed to County Standard and by roads accepted for maintenance responsibility by a unit of local or state government." Gribbling Road is an old established County Road maintained (underline added for emphasis) by the County but since it is a gravel surface, it is not up to current County standard. Cost of Exaction: The County Road Department has provided a cost analysis for the requirement to improve Gribbling Road with a 24 feet wide A.C. surface with 2 foot shoulders to Highway 20, Gosney or Rickard Roads from Timland Lane. The Road Department estimates that; Option 1 north from Timland Lane to Highway 20 would cost for paving a road surface would be an estimated $375,000, plus replacement of the bridge at an estimated cost of between $100,000 -200,000; Option 2 south from Timland Lane to Gosney via Ward Road would cost an estimated $470,000; Option 3 south from Timland Lane to Rickard would cost an estimated $484,000. Rough Proportionality Analysis: Staff has determined that there are approximately twenty-seven (27) existing or potential lots north of Timland Lane that would use Gribbling for primary access to those lots when fully developed with single-family dwellings. Staff notes that 10 Average Daily Trips (ADT) per dwelling typically are used when determining vehicle impacts onto road systems from proposed MA07-5/TP06-983 Page 17 of 35 Staff Report developments. The 27 potential lots would contribute up to 270 vehicle ADT per day. The six (6) new lots of K -Barr Estates would contribute 60 vehicle ADT to a designated primary access road. The proposed K -Barr Estates would only contribute 22% of the total vehicle traffic onto Gribbling from Timland Lane to Highway 20. Staff has determined that there are approximately sixty-eight (68) existing or potential single- family dwelling lots south of Timland Lane that would typically use Gribbling (and portion of Groff Road) to Gosney via Ward Road. The 68 lots would contribute up to 680 vehicle ADT. As noted above, K -Barr Estates ADT would be 60 vehicle trips and contribute 0.9% of the total vehicle traffic onto Gribbling south from Timland Lane to Gosney via Ward Road. Staff has determined that there are approximately forty-one (41) existing or potential single- family dwelling lots south of Timland Lane that would typically use Gribbling (and portion of Groff Road) to Rickard Road. The 41 lots would contribute up to 410 vehicle ADT. As noted above, K -Barr Estates ADT would be 60 vehicle trips and contribute 14.6% of the total vehicle traffic onto Gribbling (and portion of Groff Road) south from Timland Lane to Rickard Road. Staff agrees that Gribbling Road should eventually be a paved surface County Road as suggested by the Road Department. However, upon completion of the above analysis, staff believes that since K -Barr Estates only will contribute between 0.9% and 22% of the overall impact to the primary access road system, staff cannot recommend a condition of approval to require the applicant to contribute to 100% of the estimated paving costs for Gribbling Road north or south of Timland Lane. Staff believes that any required improvements to Gribbling Road imposed upon the applicant cannot successfully meet the Dolan exaction and/or rough proportionality test. The Hearings Officer should confirm or deny whether paving of Gribbling Road should be a required. C. The tentative plan for the proposed subdivision meets the requirements of Oregon Revised Statutes Section 92.090. FINDINGS: ORS 92.090 (1) requires that a new subdivision can only use the same name if it is a continuation of an existing subdivision, with a sequential numbering system, and must either be platted by the same party or have the consent of the previous party. The applicant has proposed a name of "K -Barr Estates." Staff finds that this name does not appear in any other Deschutes County subdivision. The name must be approved by the County Surveyor. Subsection 2 requires that the streets and roads are laid out to conform with existing plats on adjoining property, that streets and roads held for private use are clearly indicated on the tentative plan and all reservations or restrictions relating to such private roads and streets are set forth thereon. The street name shown on the tentative plan has been designated Timland Lane. Timland Lane is designated as a public dedicated Road. The road names will require approval from the County Property Address Coordinator. Subsections 3, 4 and 5 relate to final platting. D. For subdivision or portions thereof proposed within a Surface Mining Impact Area (SMIA) zone under DCC Title 18, the subdivision creates 'lots on which noise or dust sensitive uses can be sited consistent with the requirements of DCC 18.56, as amended, as demonstrated by the site plan and accompanying information required under DCC 17.16.030. MA07-5/TP06-983 Page 18 of 35 Staff Report FINDINGS: The subject property is not located in a Surface Mining Impact Area (SMIA) zone. The criterion for this section does not apply. E. The subdivision name has been approved by the County Surveyor. FINDINGS: As indicated in a foregoing FINDING, the tentative plat shows a name of "K -Barr Estates." Staff finds that this name does not appear in any other County subdivision; the proposed name must be approved by the County Surveyor. 3. Section 17.16.105, Access to subdivisions. No proposed subdivision shall be approved unless it would be accessed by Roads constructed to County standards and by Roads accepted for maintenance responsibility by a unit of local or state government. This standard is met if the subdivision would have direct access to an improved collector or arterial, or in cases where the subdivision has no direct access to such a collector or arterial, buy demonstrating that the Road accessing the subdivision from a collector or arterial meets relevant County standards and has been accepted for maintenance purposes. FINDINGS: The proposed lots are to be accessed from Gribbling Road by construction of an extension of Timland Lane. The applicant will provide a 60 -foot wide easement allowing direct access along Timland Lane to the intersection of Gribbling Road. The Timland Lane extension will be constructed to County rural local road standards listed in DCC Title 17, Table A for a rural local road which includes 2" A.C. with 6 inches of aggregate base and a paved width of 20 feet. Drainage swales will be required for storm water disposal. 4. Section 17.16.115. Traffic Impact Studies. C. Guidelines for Traffic Impact Studies b. Site Traffic Report (STR): If the development or change in use will cause the site to generate 50-200 daily trip ends, and less than 20 PM peak hour trips, a Site Traffic Report will be required. FINDINGS: According to the County Road Department no traffic analysis or Site Traffic Report is needed, due to the project low volumes of vehicle traffic on both Timland Lane and Gribbling Road. The criterion of this section does not apply. Chapter 17.36, Design Standards 1. Section 17.36.020, Streets. A. The location, width and grade of streets shall be considered in their relation to existing planned streets, topographical conditions, public convenience and safety, and the proposed use of land to be served by the streets. The street system shall assure an adequate traffic circulation system for all modes of transportation, including pedestrians, bicycles and automobiles, with intersection angles, grades, tangents and curves appropriate for the traffic to be carried, MA07-5/TP06-983 Page 19 of 35 Staff Report considering the terrain. The subdivision or partition shall provide for the continuation of the principal streets existing in the adjoining subdivision or partition or of their property projection when adjoining property is not subdivided, and such streets shall be of a width not less than the minimum requirements for streets set forth in DCC 17.36. B. Streets in subdivisions shall be dedicated to the public, unless located in a destination resort, planned community or planned or cluster development, where roads can be privately owned. Planned developments shall include public streets where necessary to accommodate present and future through traffic. C. Streets in partitions shall be dedicated to the public. FINDINGS: The tentative plat map shows one (1) road connection to Gribbling Road from an easterly extension of Timland Lane. The applicant has proposed a 60 -foot wide right-of-way for the extension of Timland Lane from Gribbling Road and terminating at a cul-de-sac within the proposed subdivision. The County Road Department has stated concerns that included the following: According to CDD 17.16.105, "No proposed subdivision shall be approved unless it would be accessed by roads constructed to County Standard and by roads accepted for maintenance responsibility by a unit of local or state government." Gribbling Road is an old established County Road maintained by the County but since it is a gravel surface, it is not up to current County standard in that it is not paved, either out to Highway 20 or to Gosney or Rickard. This application will be required to pave the cul-de-sac and Gribbling Road to County standards either to Highway 20 to the north of Timland Land or to Gosney Road via Ward Road or Rickard Road to the south. 2. Section 17.36.040, Existing Streets Whenever existing streets, adjacent to or within a tract, are of inadequate width to accommodate the increase in traffic expected from the subdivision or partition or by the county roadway network plan, additional rights of way shall be provided at the time of the land division by the applicant. During consideration of the tentative plan for the subdivision or partition, the Planning Director or Hearings Body, together with the Public Works Director, shall determine whether improvements to existing streets adjacent to or within the tract, are required. If so determined, such improvements shall be required as a condition of approval for the tentative plan. Improvements to adjacent streets shall be required where traffic on such streets will be directly affected by the proposed subdivision or partition. FINDINGS: The existing Gribbling Road is of adequate width to accommodate the limited increase in traffic expected from the seven (7) additional lots being created in the proposed subdivision. MA07-5/TP06-983 Page 20 of 35 Staff Report 3. Section 17.36.060, Minimum right of way and Roadway width. The street right of way and roadway surfacing widths shall be in conformance with standards and specifications set forth in DCC 17.48. Where DCC 17.48 refers to street standards found in a zoning ordinance, the standards in the zoning ordinance shall prevail. FINDINGS: As indicated above, the County Road Department has stated that Timland Lane and Gribbling Road shall be constructed to the standards listed in DCC Title 17, Table A for a rural local Road. Gribbling Road surfacing to Highway 20, Gosney Road via Ward Road or Rickard Road would require 2" A.C. and a paved width of 24 feet. The Timland Lane extension will be constructed to standards listed in DCC Title 17, Table A for a rural local road which includes 2" A.C. with 6 inches of aggregate base and a paved width of 20 feet. Swales are required for storm water disposal. 4. Section 17.36.120, Street names. Except for extensions of existing streets, no street name shall be used which will duplicate or be confused with the name of an existing street in a nearby city or in the County. Street names and numbers shall conform to the established pattern in the County and shall require approval from the County Property Address Coordinator. FINDINGS: The applicant has proposed the extension of "Timland Lane" as a street name to the proposed K -Barr Estates subdivision. Any street name proposed for the subdivision must be approved by the County Property Address Coordinator. 5. Section 17.36.140, Bicycle, pedestrian and transit requirements. A. Pedestrian and Bicycle Circulation within Subdivision. 1. The tentative plan for a proposed subdivision shall provide for bicycle and pedestrian routes, facilities and improvements within the subdivision and to nearby existing or planned neighborhood activity centers, such as schools, shopping areas and parks in a manner that will: a. Minimize such interference from automobile traffic that would discourage pedestrian or cycle travel for short trips; b. Provide a direct route of travel between destinations within the subdivision and existing or planned neighborhood activity centers; and c. Otherwise meet the needs of cyclists and pedestrians, considering the destination and length of trip. FINDINGS: The subject property is not located near of any neighborhood activity centers, schools, shopping areas or parks. The new streets within the subdivision will allow for pedestrian and bicycle use on the improved Road surface. MA07-5/TP06-983 Page 21 of 35 Staff Report 2. Subdivision layout. a. Cul-de-sacs and dead-end streets shall be allowed only where, due to topographical or environmental constraints, the size and shape of the parcel, or lack of through street connections in the area, a street connection is determined by the Planning Director or Hearings Body to be infeasible or in appropriate. In such instances, where applicable and feasible, there shall be a bicycle and pedestrian connection connecting the ends of cul-de-sacs to streets or neighborhood activity centers on the opposite side of the block. b. Bicycle and pedestrian connections between streets shall be provided at mid -block where the addition of a connection would reduce the walking or cycling distance to an existing or planned neighborhood activity center by 400 feet and by at least 50 percent over other available routes. c. Local Roads shall align and connect with themselves across collectors and arterials. Connections to existing or planned streets and undeveloped properties shall be provided at no greater than 400 -foot intervals. d. Connections shall not be more than 400 feet long and shall be as straight as possible. FINDINGS: Staff agrees with applicant that the modification and redesign of the subdivision provides for future access to Gribbling Road and Timland Lane for Tax lots 100, 1400, 1700 and 1800 that are within a designated RR -10 zone. The applicant has modified the access to K -Barr Estates to use the extension of Timland Lane eastward to a cul-de-sac for access to the subject property subdivision. The applicant did not provide any master development conceptual plan for future development on adjacent RR -10 Zoned property, however, the proposed modification in this application to provide an extension of Timland Lane will provide a dedicated public road for adjacent or nearby properties within the RR -10 Zone for future development that may occur between the subject property and Gribbling Road. There are no existing or planned neighborhood activity centers in the area. 3. Facilities and Improvements. a. Bikeways may be provided by either a separate paved path or an on -street bike lane, consistent with the requirements of DCC Title 17. b. Pedestrian access may be provided by sidewalks or a separate paved path, consistent with the requirements of DCC Title 17. c. Connections shall have a 20 -foot right of way, with at least a 10 -foot usable surface. MA07-5/TP06-983 Page 22 of 35 Staff Report FINDINGS: Bicycle and pedestrian access for the subdivision will be within the proposed interior roads on the site, which will meet standards for rural local roads outside of urban unincorporated communities and urban areas. 6. Section 17.36.160, Easements A. Utility Easements. Easements shall be provided along property lines when necessary for the placement of overhead or underground utilities, and to provide the subdivision or partition with electric power, communication facilities, street lighting, sewer lines, water lines, gas lines or drainage. Such easements shall be labeled "Public Utility Easement" on the tentative and final plat; they shall be at least 12 feet in width and centered on lot lines where possible, except utility pole guyline easements along the rear of lots or parcels adjacent to unsubdivided land may be reduced to 10 feet in width. FINDINGS: No response was received from the utility companies indicating that additional easements are necessary. Staff recommends that, as a condition of any approval, the applicant be required to obtain documentation from Qwest Communications and Central Electric Cooperative, Inc. detailing what, if any, utility easements exist or will be required on the subject property. All required and existing easements must be shown on the final plat. 7. Section 17.36.170 Lots - Size and Shape The size, width and orientation of lots or parcels shall be appropriate for the location of the land division and for the type of development and use contemplated, and shall be consistent with the lot or parcel size provisions of Titles 18 through 21 of this code: FINDINGS: Staff believes that the proposed new lots will accommodate single-family dwellings. The proposed lots meet the applicable size requirements. This section criterion has been complied with. 8. Section 17.36.180, Frontage A. Each lot or parcel shall abut upon a public Road for at least 50 feet, except for lots or parcels fronting on the bulb of a cul-de-sac, then the minimum frontage shall be 30 feet, and except for partitions off of U.S. Forest Service or Bureau of Land Management Roads. B. All side lot lines shall be at right angles to street lines or radial to curved streets wherever practical. FINDINGS: All proposed lots will have frontage on Timland Lane within the subdivision and will meet the frontage standards in accordance with PL -2, Article 3, Section 302, Table 3 and PL -5, Section 302.220(2). The side lot lines are at right angles to the public road. The modified subdivision design has met the criterion of this section. MA07-5/TP06-983 Page 23 of 35 Staff Report 9. Section 17.36.210, Solar Access Performance A. As much solar access as feasible shall be provided each lot or parcel in every new subdivision or partition, considering topography, development pattern and existing vegetation. The lot lines of lots or parcels, as far as feasible, shall be oriented to provide solar access at ground level at the southern building line two hours before and after the solar zenith from September 22nd to March 21st. If it is not feasible to provide solar access to the southern building line, then solar access, if feasible, shall be provided at 10 feet above ground level at the southern building line two hours before and after the solar zenith from September 22nd to March 21st, and three hours before and after the solar zenith from March 22nd to September 21st. B. This solar access shall be protected by solar height restrictions on burdened properties for the benefit of lots or parcels receiving the solar access. C. If the solar access for any lot or parcel, either at the southern building line or at 10 feet above the southern building line, required by this performance standard is not feasible, supporting information must be filed with the application. FINDINGS: The proposed lots are five (5) gross acres in size or larger. The large lot dimensional depth configurations should permit construction of single-family dwellings on the approved lots within a building envelope that satisfies this criterion. 10. Section 17.36.260, Fire hazards. Whenever possible, a minimum of two points of access to the subdivision or partition shall be provided to provide assured access for emergency vehicles and ease resident evacuation. FINDINGS: The applicant has modified and reconfigured all lots within the subdivision with minimum frontage adjacent to Timland Lane ending with a cul-de-sac near the center of the subdivision. The applicant indicates that the Deschutes County Fire Marshal has personally been contacted regarding the proposed cul-de-sac. According to the applicant, the Fire Marshal "expressed no concern with the proposed subdivision or cul-de-sac length due to the small number of dwellings in this subdivision". The applicant, therefore, has not proposed a secondary access to the subdivision. Staff believes that if the Deschutes County Fire District approves the construction of Timland Lane and the length of cul-de-sac, a minimum of two points of access for emergency vehicles would not be required. The emergency access road shall be constructed in compliance with 2004 Oregon IFC Section 503 and Appendix D. The emergency access road shall be inspected and approved in writing by the Fire Marshal prior to final plat approval. 11. 17.36.270, Street Tree Planting MA07-5/TP06-983 Page 24 of 35 Staff Report FINDINGS: applicable. Street tree planting plans, if proposed, for a subdivision or partition, shall be submitted to the Planning Director and receive his approval before the planting is begun. No planting of street trees are proposed in this application. This section is not 12. Sections 17.36.290, Individual wells, and 17.36.300, Public water system. 17.36.290 In any subdivision or partition where individual wells are proposed, the applicant shall provide documentation of the depth and quantity of potable water available from a minimum of two wells within one mile of the proposed land division. Notwithstanding DCC 17.36.300, individual wells for subdivisions are allowed when parcels are larger than 10 acres. 17.36.300 In any subdivision or partition where a public water system is required or proposed, plans for the water system shall be submitted and approved by the appropriate state of federal agency. A community water system shall be required where lot or parcel sizes are less than one acre or where potable water sources are at depths greater than 500 feet, excepting land partitions. Except as provided for in DCC 17.24.120 and 17.24.130, a required water system shall be constructed and operational, with lines extended to the lot line of each and every lot depicted in the proposed subdivision or partition plat, prior to final approval. FINDINGS: The applicant has previously provided a burden of proof statement and FINDINGS for TP06-983 that this section is not applicable. The applicant did not amend or modify the statement for a proposed water source for the subdivision following the modified and reconfigured lot configuration. This modification of the application includes a statement that indicates all lots will be served by individual wells. Staff disagrees with the applicant in TP06- 983 and this modification regarding the required water source for the subdivision lots. Staff believes that DCC 17.36.300 is applicable based upon the following facts: The applicant stated that water will be supplied by individual wells. The applicant has provided two (2) well logs within one-half mile from the subject property, therefore, in compliance with 17.36.290. The well log information indicates that the static water level of the two (2) wells in the nearby area is between 700 to 745 feet depth. The applicant has previously indicated in TP06-983 that "new water mains provided by Avion Water Company, or connecting community wells will be in place before the paving of new streets." The applicant did not provide evidence that the subject property is within the Avion Water District boundary or that Avion can provide service to the subject property. Staff has reviewed a Deschutes County GIS map and verified that the subject property appears to be within the Avion Water District boundary. The Avion Water District shall provide a statement of service availability to the subject property prior to final approval. Staff notes that proposed lots within the subdivision will be less than 10 acres in size. Use of individual wells on each lot within the subdivision for potable water sources would be at anticipated depths of over 500 feet, therefore, shall not be permitted. This section requires that for water sources exceeding 500 feet in depth, as shown by the well logs provided by the applicant, a community water system shall be provided. The applicant has not described the MA07-5/TP06-983 Page 25 of 35 Staff Report use of or a design for any proposed community water system. Since a community water system will be required to be the source of potable water for the subdivision, the applicant shall provide written authorization and approval of the system from the State Health Department and Watermaster District 11. This is an either/or proposition. Either the applicant shall connect to Avion's water system and extend the water lines to the boundary of each lot prior to final plat approval or the applicant shall construct a community water system in accordance with appropriate state and federal regulations and install water lines to each lot prior to final plat approval. PL -2, Section 205(A)(7) states that "In any subdivision where lots are to be greater than one (1) acre in area and where sewage disposal is to be provided by means of individual sewage disposal systems, water may be supplied from wells on individual lots or from an irrigation district serving the area in which the subdivision is located until such time as a public water supply is available, providing the County Sanitarian determines that individual sewage disposal systems will be located and constructed so as not to contaminate any existing or proposed well, irrigation district distribution facility, or any existing stream of underground water supply on the property to be subdivided or on adjoining property" This application has been submitted as a Rural Subdivision under the Measure 37 claim; therefore staff believes there are public health and safety issues regarding water sources in current Sections 17.36.290 and 17.36.300 that need to be addressed. Staff requests that the Hearings Officer confirm or deny that the requirements of Sections 17.36.290 and 17.36.300 were not waived by the Measure 37 claim. The availability of domestic water for the subdivision is unclear and connection to the Avion Water District may not be available. Staff recommends that if the application is approved, a condition be added to require the applicant connect to Avion Water District or prepare and submit detailed information regarding available ground water and an engineered water distribution system design prepared by a registered professional engineer and/or hydro geologist for any community water system in accordance with the criteria of Section 17.36.300. C. Chapter 17.44, Park Development 1. Section 17.44.020. Fee in lieu of dedication. A. In the event there is no suitable park or recreation area or site in the proposed subdivision or partition, or adjacent thereto, then the developer shall, in lieu of setting aside land, pay into a park acquisition and development fund a sum of money equal to the fair market value of the land that would have been donated under DCC 17.44.010 above. For the purpose of determining the fair market value, the latest value of the land, unplatted and without improvements, as shown on the County Assessor's tax roll shall be used. The sum so contributed shall be deposited with the County Treasurer and be used for acquisition of suitable area for park and recreation purposes or for the development of recreation facilities. Such expenditures shall be made for neighborhood or community facilities at the discretion of the Board and/or applicable park district. MA07-5/TP06-983 Page 26 of 35 Staff Report B. DCC 17.44.020 shall not apply to subdivision or partition of lands located within the boundaries of the Bend Metro Park and Recreation District or the Central Oregon Park and Recreation District. FINDINGS: Section 17.44.010 requires a dedication of parkland, unless there is no suitable land for a park on the property, and section 17.44.020 allows a fee in lieu of a dedication. Staff believes there is no suitable land for a park, therefore, this criterion applies and the 6 additional lots would require a parks fee of $2,100 ($350 x 6). Staff believes this criterion applies as the creation of regional parklands has had substantial positive impacts on regional property values. The applicant has previously agreed to pay the appropriate fees of $350.00 per lot in compliance with this section. D. Chapter 17.48, Design and Construction Specifications 1. Section 17.48.050, road design. The design of roads covered by DCC Title 17 is to be prepared by a registered professional engineer and shall at a minimum conform to the design standards for new or existing roads set forth in Table A of DCC Title 17 (or in the design standards set forth for a particular zone in a zoning ordinance) and shall otherwise conform with AASHTO standards. Base and pavement dimensions set forth in Table A (or in specifications set forth for a particular zone) may be increased by the Road Department Director if necessitated by anticipated traffic volumes. FINDINGS: A registered professional engineer must complete the proposed road design for the new streets within this subdivision. The County Road Department has indicated that Timland Lane, as well as Gribbling Road, shall be constructed to the standards listed in DCC Title 17, Table A for a rural local Road. The Timland Lane extension will be constructed to County rural local road standards listed in DCC Title 17, Table A which includes 2" A.C. with 6 inches of aggregate base and a paved width of 20 feet. Swales are required for storm drain disposal. 2. Section 17.48.160, Road development requirements — Standards. A. Subdivision Standards. All roads in new subdivisions shall either be constructed to a standard acceptable for inclusion in the County maintained system or the subdivision shall be part of a special Road district or a homeowners association in a planned unit development. FINDINGS: The applicant is proposing to construct the new roads within the subdivision to County rural local road standards, and acceptable for inclusion into the county maintained system. The County Road Department has indicated to staff that the proposed subdivision application was received after the current moratorium on adding any additional roads into the County maintained system; therefore, all roads proposed in the K -Barr Estates subdivision will not be eligible for addition to that system. Therefore, as a condition of any approval, the applicant shall record a Road Maintenance Agreement, acceptable to the County Road Department, prior to final plat approval. MA07-5/TP06-983 Page 27 of 35 Staff Report B. Improvements to Public Rights of Way. 1. The developer of a subdivision or partition will be required to improve all public ways that are adjacent or within the land development. 2. All improvements within public rights of way shall conform to the improvement standards designated in DCC Title 17 for the applicable Road classification, except where a zoning ordinance sets forth different standards for a particular zone. FINDINGS: Timland Lane extending to the cul-de-sac within the subdivision should be constructed to the County rural local road standard for subdivisions. Gribbling Road is a County maintained road, but since it is a gravel surface, it is not up to current County standards in that it is not paved, either out to Highway 20 or to Gosney Road via Ward Road or Rickard Road. The County Road Department has indicated that Timland Lane shall be constructed to the standards listed in DCC Title 17, Table A, which includes 2" A.C. with 6 inches of aggregate base and a paved width of 20 feet for a rural local Road. The County Road Department has requested that Gribbling Road be paved to County standards either to Highway 20 to the north of Timland Land or to Gosney Road via Ward Road or Rickard Road to the south. C. Primary Access Roads. The primary access road for any new subdivision shall be improved to the applicable standard set forth in Table A. The applicable standard shall be determined with reference to the road's classification under the relevant transportation plan. For purposes of DCC 17.48.160 a primary access road is a road leading to the subdivision from an existing paved county, city or state maintained road that provides the primary access to the subdivision from such a road. FINDINGS: The primary access road for this subdivision is Gribbling Road, which is a County maintained road. D. Secondary Access roads. When deemed necessary by the County Road Department or Community Development Department, a secondary access road shall be constructed to the subdivision. Construction shall be to the same standard used for roads within the subdivision. FINDINGS: The County Road Department has not requested a secondary access road. F. Cul-de-sacs. Cul-de-sacs shall have a length of less than 600 feet, unless a longer length is approved by the applicable fire protection district, and more than 100 feet from the center of the bulb to the intersection with the main Road. The maximum grade on the bulb shall be four percent. FINDINGS: As shown on the submitted site plan, the proposed cul-de-sac is approximately 1,558.41 feet long. No grade information has been provided regarding the proposed cul-de-sac bulb. PL -2 requires that cul-de-sacs not exceed 800 feet for rural subdivisions. Staff believes that the restriction on the length of cul-de-sac lengths is directly related to public health and safety for emergency vehicle uses. This should be confirmed or denied by the Hearings Officer. MA07-5/TP06-983 Page 28 of 35 Staff Report The applicant has stated that in a conversation with the Deschutes County Rural Fire Protection District #2 (DCRFPD), the Fire Marshal expressed "no concern with the proposed subdivision or cul-de-sac length due to the small number of dwellings in this subdivision". Staff believes that DCRFPD should provide a written acceptance of the proposed construction of approximately 1,558.41 feet length for the cul-de-sac prior to final plat approval. The comment from the Fire District did not express any concerns. They simply state the cul-de- sacs must have an approve turn -around. It the applicant meets code for the turn -around that should be acceptable. E. TITLE 18 OF THE DESCHUTES COUNTY CODE, COUNTY ZONING. CHAPTER 18.16, EXCLUSIVE FARM USE ZONES. 1. Section 18.16.025. Uses permitted subject to the special provisions under DCC 18.16.038. A. Dwellings customarily provided in conjunction with farm use (farm - related dwellings). FINDINGS: Dwellings on the proposed lots would not be considered farm dwellings, and no further land use permit is required for a dwelling on each lot. 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. FINDINGS: The proposed subdivision creates 7 lots. The property owner was granted a Measure 37 waiver from those non-exempt land use regulations adopted after the purchase that resulted in a reduction of property value. The County had adopted the Deschutes County Comprehensive Plan of 1970 and Subdivision Ordinance No. PL -2 in 1970 and Deschutes County Zoning Ordinance PL -5 of 1972, all in effect prior to the time of the owner's purchase of the subject property. None of these cited ordinances limited residential development of the subject property. The classification of high-value and non -high value soil type(s) on the subject property were not applicable at the time of the owner's purchase of the property, therefore, no conditional use permit or administrative determination is being reviewed for a dwelling on each proposed lot. 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 MA07-5/TP06-983 Page 29 of 35 Staff Report injury from farming or forest practices for which no action or claim is allowed under ORS 93.396 or 30.397. FINDINGS: Staff believes that the requirement above for signing the document that prohibits landowners of the proposed lots from pursuing a claim for relief or cause of action alleging injury from farm or forest practices would be considered a non-exempt regulation. There is no evidence to suggest that the recordation of such waivers results in the reduction of property value. The County Hearings Officer, in decisions rendered on the Stills (MP -05-21), McLean/Johnson (TP -06- 971) and Hurtley (TP -06-974) applications concluded that the waiver requirement above was not waived and was made a condition of approval. Staff believes that this same condition should be applied to this subdivision tentative plat. 4. Section 18.16.055. Land Divisions and 18.16.065. Subzones FINDINGS: The property owner was granted a Measure 37 waiver from those non-exempt land use regulations adopted after the purchase that resulted in a reduction of property value. Staff believes application of the land division criteria of DCC 18.16.055 and 18.16.065 would result in fewer potential lots and a reduction in property value and, therefore, these criteria should be waived. 5. Section 18.16.060, Dimensional Standards A. The minimum parcel size for divisions of irrigated parcelscreated subject to DCC Title 17 shall be as specified under DCC 18.16.065, "Subzones." B. The minimum parcel size for non -irrigated land divisions is as specified under DCC 18.16.055(C). C. The minimum lot area for all uses permitted by DCC 18.16.030(G) through (CC) shall be that determined by the Planning Director or Hearings Body to carry out the intent and purposes of ORS 215, DCC Title 18 and the Comprehensive Plan. In no case shall lot areas be less than one acre. D. Each lot shall have a minimum street frontage of 50 feet. E. Building height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. FINDINGS: The property owner was granted a Measure 37 waiver in Board of Commissioners Order No. 2005-110 from those non-exempt land use regulations adopted after October 21, 1974 that resulted in a reduction of property value. The original Measure 37 claim submitted by the applicant requested approval for the creation of seven (7) Tots, containing five (5) acres each. Staff notes that the modification of the application (TP06-983) now identifies the proposed creation of seven (7) lots that were cited in the original Measure 37 claim. MA07-5/TP06-983 Page 30 of 35 Staff Report 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 18.16.060(A -C) of this section do not apply to the proposed parcels. Staff believes compliance with the frontage standards and building height restriction does not reduce the property value for this proposed subdivision. Staff believes that the more restrictive setback distances of PL -2 and PL -5 should apply. This should be confirmed or denied by the Hearings Officer Under the "Comprehensive Plan to 1990" map and PL -2, Staff believes that the proposed subdivision would be considered a rural subdivision. PL -2 specifies (Section 302, Table 3, Page 16) that lots in rural subdivisions have a minimum size of 5 acres, a minimum width of 300 feet, a minimum depth of 400 feet, and 150 feet of street frontage. Staff notes that Table 3, PL -2 does not permit special reduced street frontage distances for lots created adjacent to curved street or cul-de-sac access, Staff believes that cul-de-sac lots are required to meet the minimum frontage distance of 150 feet for rural subdivisions. This should be confirmed or denied by the Hearings Officer. Staff has determined all proposed lots identified in the modification of the application and tentative plan meet the acreage area, width, depth and frontage requirements. This criterion of PL -2 has been complied with. 6. Section 18.16.070, Yards. A. The front yard shall be 40 feet from a property line fronting on a local street, 60 feet from a property line fronting on a collector and 100 feet from a property line fronting on an arterial. B. Each side yard shall be a minimum of 25 feet, except that for nonfarm dwelling proposed on parcels or lots with side yards adjacent to a property currently employed in farm use, the side yard shall be a minimum of 100 feet. C. Rear yards shall be a minimum of 25 feet, except that for nonfarm dwellings proposed on parcels or lots with rear yards adjacent to a property currently employed in farm use, the rear yard shall be a minimum of 100 feet. D. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. FINDINGS: The property owner was granted a Measure 37 waiver from those non-exempt land use regulations adopted after the purchase that resulted in a reduction of property value. Staff has reviewed the current 100 -foot setback requirement for non-farm dwellings against the modified tentative plat drawing for the proposed subdivision. This type of setback distance for non-farm dwellings from adjacent property currently employed in farm uses or receiving farm deferral (identified as Tax Lots 100, 600, 700, 900 and 1000) appears to restrict future dwelling locations to within building envelope available on the proposed lots. Although a building envelope established in compliance with the increased setback distances would permit a dwelling to be constructed on the site, Staff believes that this 100 -foot setback restricts the option of future lot purchasers to place dwellings on the lots created, therefore, may contribute to a potential reduction in value of the applicant's property. MA07-5/TP06-983 Page 31 of 35 Staff Report The Hearings Officer, in Hurtley (TP -06-974) determined that "....since the 100 -foot setbacks are required by state law to protect farm activity from conflicts with non-farm dwellings, I find that both the state's waiver and the fact the dwellings in the subdivision would not be non-farm dwelling means that these setbacks are not applicable to the proposed subdivision." Staff concludes that the Hearings Officer's decision in Hurtley would also be applicable to the subject property subdivision; therefore, the above 100 -foot setback should not apply. Staff notes that Deschutes County Board of Commissioners Resolution No. 1, signed June 17, 1970, adopted the "Comprehensive Plan to 1990" map of Deschutes County. This map identifies the subject property as Intensive Agriculture. Also, the County had adopted Subdivision Ordinance No. PL -2 in 1970 that identified rural subdivision regulations in effect and prior to the owner's purchase of the subject property. Staff believes the proposed subdivision constitutes a rural subdivision, regulated under Section 302 of PL -2 and Sections 3.210 to 3.230 of PL -5 zoning ordinance, adopted in 1972 and prior to the applicant purchasing the property in October 21, 1974. PL -2 specifies (Section 302, Table 3, Page 16) that buildings in rural subdivisions are setback a minimum of 50 feet from a street. This 50 feet street setback distance is more restrictive than the existing EFU-ALFALFA (EFU-AL) Zone front yard of 40 feet. Staff believes that the more restrictive PL -2 minimum 50 feet building setback line from the proposed street, Timland Lane, should apply in accordance with the criteria of PL -2. Zoning Ordinance PL -5, Section 3.225, Yards, states the following: 1. A front yard shall be a minimum of 50 feet between a building or structure and the ultimate street right-of-way as adopted on the Comprehensive Plan or Official Map. 2. A side yard shall be a minimum of 10 feet, except that on a corner lots the side yard on the street side shall be a minimum of 50 ft. 3 A rear yard shall be a minimum of 50 feet. The existing EFU-AL Zone, 18.16.070, side yard setback distance cited above is more restrictive than the criteria of PL -5; however, the applicant may choose to provide a greater side yard distance than the minimum 10 feet. Front and rear yard setback distances in PL -5 require a minimum of 50 feet. Staff believes that the criteria for minimum front and rear yard setback distances in PL -5 should apply to the subject property subdivision. F. DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT MEASURE 37 FINAL ORDER CLAIM NO. M118741 FINDINGS: This DLCD order was adopted and approved based upon the record, including FINDINGS and Conclusions set forth in the Final Staff Report and Recommendation of DLCD. DLCD Order Claim No. M118741 states that: The Claim is approved as to laws administered by DLCD and the Land Conservation and Development Commission (LCDC) for the reasons set forth in the DLCD Report, and subject to the following terms: MA07-5/TP06-983 Page 32 of 35 Staff Report 1. In lieu of compensation under ORS 197.352, the State of Oregon will not apply the following laws to Delmar and Delores Kennel's partition of the 35 - acre property into 5 -acre parcels of to their development of a dwelling on each parcel: applicable provisions of Goal 3, ORS 215 and OAR 660, division 33, enacted or adopted after October 21, 1974. These land use regulations will not apply to the claimants only to the extent necessary to allow them to use the subject property for the use described in this report, and only to the extent that use was permitted when they acquired the property on October 21, 1974. The modification of this application proposes the creation of seven (7) parcels containing 5 acres each in accordance with this order. The criterion of this Order has been complied with. IV. CONCLUSION: Based on the evidence in the record submitted to date, staff recommends approval of this application because of the following: • Under the "Comprehensive Plan to 1990" map and PL -2, Staff believes that the proposed subdivision would be considered a rural subdivision. PL -2 specifies (Section 302, Table 3, Page 16) that lots in rural subdivisions have a minimum size of 5 acres, a minimum width of 300 feet, a minimum depth of 400 feet, and 150 feet of street frontage. Staff believes the applicant has complied with the lot design criterion or PL -2. • Detailed information on potable water sources in accordance with the criteria of PL -2 Section 205(A) (7) or Sections 17.36.290 and 17.36.300 can be provided by the applicant. • The proposed location for the extension of Timland Lane does permit future development of adjacent properties to the west of the subject property. V, RECOMMENDATION: Staff recommends approval of the application subject to the following conditions: 1. Approval is based upon the creation of 7 Tots in the modification plan submitted. Any substantial change to the approved plan will require a new application. The final plat review shall require an up-to-date title report. All persons with an ownership interest in the property shall sign the final plat or consent to partition. 2. The applicant shall obtain a site evaluation for each lot from the Deschutes County Environmental Health Division prior to final plat approval. The dwellings shall be limited to 30 feet in overall height, unless a height exception is approved under section 18.120.040 of Title 18. 4. The applicant shall have a licensed land surveyor prepare a subdivision plat that conforms to Oregon Revised Statutes Chapter 92 and Title 17 of the Deschutes County Code. The final plat shall show the exact sizes for each lot. 5. The final plat shall be in compliance with the criteria of Central Oregon Irrigation District regarding easements, removal of water rights or approval of a Developer Irrigation Plan (DIP). The final plat shall contain a statement of water rights and be signed by an MA07-5/TP06-983 Page 33 of 35 Staff Report authorized representative from the irrigation district. Each lot shall contain at least 2.00 acres of water rights. 6. All advalorem taxes, fees and other charges that have become a lien upon the entire parcel shall be paid. The final plat shall be signed by the County Assessor and County Tax Collector. 7. All easements of record shall be shown on the final plat. 8. Access permits for the proposed lots shall be obtained prior to final plat approval. 9. The applicant/property owner shall sign and record the waiver listed under 18.16.050 for adjacent farm and forest uses, prior to final plat approval. 10. The subdivision name shall require review and approval by the County Surveyor. 11. All road names shall require review and approval from the County Property Address Coordinator. 12. The front yard and rear yard setback distances shall be a minimum of 50 feet in accordance with the criteria of PL -2. Side yard setback distances shall meet the minimum setbacks under section 18.16.070, excluding the 100 -foot setback for non-farm dwellings adjacent to farm use. 13. All lot frontage distances shall be a minimum of 150 feet. 14. The maximum grade on any cul-de-sac bulb shall not exceed four (4) percent. 15. Road design and construction shall be in accordance with Deschutes County Code (DCC), Chapter 17.48. All road construction plans shall be approved by the County Road Department prior to commencement of construction. 16. The applicant shall be responsible for the maintenance of Timland Lane. The applicant shall record a road Maintenance Agreement with the County Clerk outlining the maintenance responsibilities of Timland Lane. The agreement shall be reviewed and approved by the County Road Department prior to recording. 17. The domestic water system for the subdivision shall be provided in accordance with DCC 17.36.300. If Avion Water District does not provide domestic water to the subdivision, prior to final plat approval, the applicant shall provide a detailed report regarding available ground water and an engineered water distribution system design prepared by a registered professional engineer and/or hydro -geologist for any community water system. The applicant shall provide written authorization and approval from the State Health Department and Watermaster District 11 for any proposed community water system and submit the written document to the Planning Department prior to issuance of any building permits. MA07-5/TP06-983 Page 34 of 35 Staff Report 18. Prior to final plat approval, the applicant shall obtain documentation from telephone and electrical power providers serving the subject property detailing what, if any, utility easements exist or will be required on the subject property. All required and existing easements must be shown on the final plat. 19. Prior to final plat approval, the applicant shall provide written documentation to the Planning Department that Deschutes County Rural Fire Protection District #2 has inspected and approved (1) any designated water supply for fire prevention purposes as required in 2004 Oregon IFC and (2) approved the cul-de-sac length of Timland Lane for K -Barr Estates Subdivision. 20. Applicable park development fees in the amount of $2,100 shall be paid prior to final plat approval. MA07-5/TP06-983 Page 35 of 35 Staff Report GRIBBLING ROAD lug Q> k 15 >0 O0 Zrni ORgig 0042 W O Z C Z N1Om ogo 0 vq Col g_gz O f SILVIS] 11l1VS-)I li FIX DELMAR & DELORES KENNEL 61405 K—BARR ROAD BEND, OREGON 97701 TITLE K—BARR ESTATES PRELIMINARY SUBDIVISION TYE ENGINEERING, INC. 725 NW HILL - BED, OFEGON 97701 - (541) 389-6959 SCALE 1 • 200' DATE WY 0, 2007 ORA>: P.A.T. JOB It 1553 J