HomeMy WebLinkAboutWhether to Hear Appeal - Dwelling in Forest Zonee
Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of November 24, 2008
Please see directions for completing this document on the next page.
DATE: November 17, 2008
FROM: Anthony Raguine Community Development Department
617-4739
TITLE OF AGENDA ITEM:
Board Consideration whether or not to hear an appeal (A-08-21) of the Hearings Officer decision in file
CU -08-29, approving a template dwelling in the Forest Use (Fl) Zone.
PUBLIC HEARING ON THIS DATE? No.
BACKGROUND AND POLICY IMPLICATIONS:
The applicant, James & Jean Verheyden, submitted a conditional use permit (CU -08-29) application
requesting approval of a template dwelling in the Fl Zone. A public hearing before the Hearings
Officer was held on July 8, 2008. The Hearings Officer decision approving CU -08-29 (attached) was
mailed on November 4, 2008. On November 14, 2008, a timely appeal was filed by Central Oregon
Landwatch (A-08-21). The appellant requests a de novo hearing, citing 13 reasons why the Board
should hear the appeal (see appeal application and staff memo).
FISCAL IMPLICATIONS:
None.
RECOMMENDATION & ACTION REQUESTED:
Staff recommends that the Board not hear the appeal. Staff agrees with the Hearings Officer's analy sis
and decision. Staff does not believe the Hearings Officer decision presents a policy issue.
ATTENDANCE: Anthony Raguine
DISTRIBUTION OF DOCUMENTS:
Anthony Raguine
Legal Counsel
Tia Lewis
Schwabe Williamson & Wyatt
549 SW Mill View Way, Suite 100
Bend, OR 97702
Community Development Department
Planning Division Building Safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)38`:-1764
http://www.co.deschutes.or.us/cdd/
MEMORANDUM
DATE: November 17, 2008
TO: Board of County Commissioners (Board)
FROM: Anthony Raguine, Senior Planner
RE: Appeal (A-08-21) of Hearings Officer decision approving a conditional use permit
(CU -08-29) to establish a template dwelling.
BACKGROUND
The property is approximately 80 acres in size, located north of the Sisters Mainline Road (also
known as US Forest Service Road 4606), northwest of Bull Springs Road, and west of Johnson
Road. The property is rectangular in shape with a 20 -foot -wide strip of land connecting the
main portion of the lot to Bull Springs Road. The property is vacant, has no water rights, and is
covered with native vegetation consisting of ponderosa pine trees, brush, and grasses.
The applicants, James and Jean Verheyden, submitted a conditional use permit (CU -08-29)
application to establish a template dwelling in the Forest Use (F1) Zone. A public hearing
before the Hearings Officer was held on July 8, 2008. The Hearings Officer decision approving
CU -08-29 was mailed on November 4, 2008. On November 14, 2008, a timely appeal was filed
by Central Oregon Landwatch (A-08-21). The appeal identifies 13 reasons the Board should
hear the appeal, and requests a de novo hearing. The majority of the 13 points of contention
revolve around the road to be used to orient the template, and the orientation of the template.
The appellant argues that the wrong road was chosen to orient the template (several roads
cross the property), the template was not oriented properly, and that the proper orientation of
the template would preclude the applicant from meeting the required approval criteria.
Based on staffs calculation, as of November 24, 2008, 117 days will have elapsed in the 150 -
day land use clock.
APPEAL
The notice of appeal describes relevant background facts that the reasons for appeal. As
detailed in DCC 22.32.020(A), the Board should review the notice of appeal to determine that its
sufficiently specific so that the Board is able to respond to and resolve each issue in dispute.
File No.: A-08-21 (CU -08-29) Page 1 of 2
Quality Services Performed with Pride
If the Board decides to hear the appeal, the review shall be on the record unless the Board,
under its own motion, decides to hear the appeal de novo (DCC 22.32.027(6)(1) and (3)). As
noted above, the appellant has requested a de novo hearing. Per DCC 22.32.027(6)(4), the
Board, may, at its discretion, determine that it will limit the issues on appeal to those listed in the
notice of appeal or to one or more specific issues from among those listed on the notice of
appeal.
DECLINING REVIEW
If the Board of County Commissioners decides that the Hearings Officer's decision shall be the
final decision of the County, then the Board shall not hear the appeal and the party appealing
may continue the appeal as provided by law. The decision on the land use application becomes
final upon the mailing of the Board's decision to decline review. As indicated in DCC
22.32.035(B) and (D), in determining whether to hear an appeal, the Board may consider only:
1) The record developed before the Hearings Officer;
2) The notice of appeal; and
3) Recommendations of staff.
STAFF RECOMMENDATION
Staff recommends that the Board not hear the appeal. Staff agrees with the Hearings Officer's
analysis and decision. Staff does not believe the Hearings Officer decision presents a policy
issue.
SCHEDULE
This item is scheduled for the Board's regular meeting on November 24, 2008. Please feel free
to contact me with any questions or concerns.
File No.: A-08-21 (CU -08-29) Page 2 of 2
DESCHUTES COUNTY
PLANNING DIVISION
117 NW Lafayette Avenue, Bend OR 97701
Phone: (541)388-6575 FAX: (541)385-1764 http://newberry.deschutes.org
APPEAL APPLICATION FORM
DATE SUBMITTED: *Mov. tV. QUOS
FEE: 2.2,52. So
APPELLANT: C.JesA -r�,l D ragaLa4d WakcL• PHONE: (54i I) 317 - 1993
Ye 9...31 , AMoa h.y
MAILING ADDRESS: 1534 aW V rcltsLb c9 A.vc CITY: da..d ST: a2 ZIP: 4'7101
LAND USE APPLICATION BEING APPEALED: CU DS 4 e...pl.d< 'Ow 0.1:A9
PROPERTY DESCRIPTION: T ? 1 R I! S 15 TAX LOT: 1134 Ll
APPELLANT'S SIGNATURE •
DATE:
'lit Ylo-
IT IS THE RESPONSIBILITY OF THE APPLICANT (APPELLANT) TO COMPLETE A NOTICE OF APPEAL
AS SET FORTH IN CHAPTER 22.32 OF THE COUNTY CODE, "APPEALS."
EVERY NOTICE OF APPEAL SHALL INCLUDE:
1. A statement describing the specific reasons for the appeal; 5 eE
c, H a clna c) l c l4r/)
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 Hearings Body's;
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 de novo review as
provided in Section 22.32.027 of Title 22.
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.
EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANTS SHALL PROVIDE A COMPLETE
TRANSCRIPT OF ANY HEARING APPEALED FROM, FROM RECORDED MAGNETIC TAPES PROVIDED
BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE
RECORD). APPELLANTS SHALL SUBMIT TO THE PLANNING DIVISION THE TRANSCRIPT NO LATER
THAN THE CLOSE OF THE DAY 5 DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR,
IN ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS.
NOTICE OF APPEAL
SCANNED
NOV 15 2008
Paul D. Dewey Attorney at Law
1539 NW Vicksburg
Bend, Oregon 97701
(541) 317-1993
fax (541) 383-3470
pdewey@bendcable.com
November 14, 2008
Board of Commissioners
Deschutes County
c/o Community Development Dept.
117 NW Lafayette Ave.
Bend, OR 97701-1925
Re: Appeal to Board of Hearings Officer Decision in CU -08-29
(Verheyden Application for Template Dwelling)
Dear Commissioners:
On behalf of my client, Central Oregon LandWatch, I am submitting this appeal of the Hearings
Officer's October 29, 2008, decision on the above file, which was mailed on November 4.
Reasons the Board should review the decision.
This land use application concerns a proposed template dwelling to be located on an 80 -acre
parcel northwest of Bend in part of the former Bull Springs timber tract. When the lot was
created just a few years ago, the County made clear that it was not making any determination that
the lot was suitable for a dwelling. The property, which is in the County's F-1 forest land zone,'
is in a high fire risk area and is located just east of the proposed Skyline Forest area.
Board review is necessary because of several interpretations by the Hearings Officer of the
Deschutes County Code which the Board has previously not considered, including the
application of several template dwelling provisions. These are important issues that will be
applicable to other applications for template dwellings in the County.
Statement describing specific reasons for appeal.
The specific reasons for the appeal include:
1. The Hearings Officer erred in concluding that there is no inconsistency between the
statutory and Code template dwelling provisions.
2. The Hearings Officer failed to properly apply the statutory and Code standard that a
template rectangle be oriented to a road "to the maximum extent possible."
'The Hearings Officer incorrectly referred to DCC Chapter 18.40 which actually applies to F-2 zoned lands. The
proper citation to F-1 lands should have been to DCC Chapter 18.36.
November 14, 2008
Page 2
3. The Hearings Officer failed to apply the proper statutory definition for a "road."
4. In considering roads for orientation of a template rectangle, the Hearings Officer erred by
including old logging roads instead of roads for ingress and egress.
5. The Hearings Officer erred in utilizing a road that does not currently exist or provide
access for orienting a template rectangle.
6. The Hearings Officer erred in concluding that Sisemore Road is an actual road that could
be used to orient a template rectangle.
7. The Hearings Officer erred in failing to utilize the property's access road to orient the
template rectangle.
8. The Hearings Officer erred in stating that LandWatch's proposed determination for
orientation of the template is based on the road within the property. LandWatch actually argued
that the orientation be based on the road within the one -mile template.
9. A properly -oriented template rectangle for the property does not include the requisite
seven legal lots and three dwellings which existed on January 1, 1993. There is also no dwelling
that existed on January 1, 1993, that is on the same side of the road as the proposed template
dwelling.
10. No dwelling that existed on January 1, 1993, is located within the template rectangle.
11. The Hearings Officer erred in failing to include as a condition of approval the DCC
18.36.085 requirements regarding stocking.
12. The Hearings Officer erred by including a condition of approval that provides that if there
is a conflict between a Code provision and the Forest Plan that the Forest Plan controls.
13. With regard to compliance with DCC 18.36.040(B), 18.36.060(D), 18.36.070 and
18.36.080, the Hearings Officer erred by including a condition of approval requiring compliance
with Forest Plan recommendations where there is not adequate specificity and clarity of the
recommendations and of their enforceability.
Request for de novo review.
De novo review is appropriate here where the substantial rights of the parties would be
significantly prejudiced otherwise. It is critical that the Board make a site visit in order to see
that Sisemore Road does not in fact actually exist or provide access. A fundamental source of
confusion on this case has been the numerous roads the Applicants have proposed for orienting
the template dwelling. The public is entitled to give evidence on all of these proposed roads.
Furthermore, as addressed above, there are significant policy issues regarding interpretation of
the template dwelling requirements which need to be addressed.
November 14, 2008
Page 3
The Hearings Officer fails to explain how many days are left within the 150 -day time limit. The
Staff Report identifies June 12 as the date the application was complete. At the hearing on July
8, the Applicants requested a continuance or record extension to submit materials on August 12.
LandWatch was then given the opportunity to respond on August 26.
At the very least, this extension should have suspended the 150 -day time period by 35 days.
Note, though, that the Applicants also agreed to the additional 14 days for LandWatch to
respond. Subtracting the 35 days requested by the Applicants, I count 120 days as having
expired under the 150 -day rule as on this date, November 14. Subtracting the additional 14 days
the Applicants agreed to give to LandWatch, only 106 days have expired. There is either one
month or one and one-half months remaining within the 150 -day time period.
Very
ID
PAUL DEWEY
PD:ao
cc: Client
DECISION OF THH: DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBER:
APPLICANT:
AGENT:
REQUEST:
STAFF REVIEWER:
HEARING DATE:
RECORD CLOSED:
CU -08-29
James & Jean Verheyden
61848 Fall Creek Loop
Bend, OR 97702
Tia M. Lewis
Schwabe Williamson & Wyatt
549 SW Mill View Way
Bend, OR 97702
The applicant requests a conditional use permit to establish a
single-family dwelling on property zoned Forest Use (F-1) and
within the Wildlife Area (WA) Combining Zone.
Anthony Raguine, Senior Planner
July 8th, 2008.
September 2nd, 2008
I. APPLICABLE STANDARDS AND CRITERIA:
Title 18 of the Deschutes County Code, the County Zoning Ordinance:
A. Chapter 18.40, Forest Use (F-1) Zone
B. Chapter 18.88, Wildlife Area (WA) Combining Zone
IL FINDINGS OF FACT:
A. LOCATION: The property is located at 18680 Bull Springs Road, Bend, and is
identified on Deschutes County Assessor's Map 17-11, as tax lot 4304.
B. LOT OF RECORD: The subject property is Parcel 2 of Partition Plat 2006-65.
C. ZONING: The subject property is zoned Forest Use (F-1) and is within the
Wildlife Area Combining Zone. The property is also located within a mapped deer
winter range.
D. SITE DESCRIPTION: The property is approximately 80 acres in size, located
north of the Sisters Mainline Road (also known as US Forest Service Road 4606),
northwest of Bull Springs Road, and west of Johnson Road. The property is rectangular
in shape with a 20 -foot -wide strip of land connecting the main portion of the lot to Bull
CU -08-29
Verheyden
1
Springs Road The property is vacant, has no water rights, and is covered with native
vegetation consisting of ponderosa pine trees, brush, and grasses.
E. SURROUNDING LAND USES: The subject property is surrounded by vacant
parcels and residential uses on Forest Zone lands (F1 & F2). To the north are lands
owned by the State of Oregon and Crown Pacific Limited.
F. PROPOSAL: The applicant is requesting a conditional use permit to establish a
template (single-family) dwelling and accessory structures (pumphouse, stable, shed).
The applicant has submitted a site plan and an application in support of the request. The
application materials are incorporated herein by reference.
G. PROCEDURAL HISTORY: The conditional use permit application was
submitted on May 16, 2008. The Planning Division deemed the application complete on
June 12.
A public hearing was held July 8, 2008. At the hearing, Central Oregon LandWatch
( hereinafter "LandWatch") submitted a letter providing argument and evidence in
opposition to the application. Prior to the close of the hearing, the applicant requested
that the record be left open to submit argument and evidence responding to LandWatch's
July 8th letter. A briefing schedule was established providing additional time for the
applicant to provide such information. LandWatch was given until August 26, 2008, to
respond, and the applicant was then to have until September 2, 2008, to submit final
arguments.
The applicant submitted a letter and exhibits on August 11, 2008. LandWatch responded
with its own letter and exhibits on August 26, 2008. The applicants provided a final letter
on September 2, 2008. No other information was provided by any party during the
period in which the record remained open.
H. PUBLIC AGENCY COMMENTS: The Planning Division received the
transmittal responses detailed below.
Deschutes County Assessor
The subject property is currently under tax deferral.
Deschutes County Building Division
Building permits and proper plan review would be required.
Deschutes County Environmental Health
No records for this property. Septic site evaluation is required.
Deschutes County Property Address Coordinator
CU -08-29
Verheyden
2
If this application is approved, the applicant shall contact the Property Address
Coordinator to verify the accuracy of the existing address. The existing address
may be subject to change.
After staffs site visit, the Property Address Coordinator confirmed to staff that
the existing address can be retained.
Bend Fire Department
Water Supply - 2004 Oregon IFC Section 508
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.
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)
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.
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 afire apparatus may be
approved.
The following agencies either had no comments or did not respond in writing:
Deschutes County Road Department.
CU -08-29
Verheyden
3
I. PUBLIC COMMENTS: The Planning Division mailed notice to all property
owners within 750 feet of the subject property. No written public comments were
received.
III. CONCLUSIONS OF LAW:
A. CHAPTER 18.40, FOREST USE ZONE
1. Section 18.40.030, Conditional Uses Permitted.
Y. Single-family dwellings or manufactured homes as specified in DCC
18.116.070, as pursuant to DCC 18.40.050.
FINDING: The applicant is proposing to establish a sing e -family dwelling. The proposal's
conformance with the criteria for a template dwelling is addressed below.
2. Section 18.40.040, Limitations on Conditional Uses.
A use authorized by DCC 18.40.030 must meet the following
requirements. These requirements are designed to make the use compatible
with forest operations and agriculture and to conserve values found on forest
lands.
A. The proposed use will not force a significant change in, or
significantly increase the cost of accepted farming or forest practices on
agricultural or forest lands.
FINDING: The staff report concludes that the application meets the above criterion.
The staff report relies both on the applicants' Burden of Proof and the planning and
appeal history of two nearby parcels created by: 1) CU -03-45 (Hogensen), appealed to
LUBA in, Sisters Forest Planning Committee v. Deschutes County, 49 Or LUBA 78
(2004), aff'd Or App 311 (2005), and 2) MP -05-31, CU -05-106 (Taylor) appealed to
LUBA in Central Oregon LandWatch v. Deschutes County (Taylor) 53 Or LUBA 290
(2007). These two prior approvals, and their findings are incorporated into the staff
report by reference. Below, I quote the staff report verbatim and incorporate those
findings into this opinion.
Staff Report
"As noted by the applicant, although a formal delineation of a study area is not required,
the Hearings Officer in Hogensen delineated a study area in that case which included the
subject property, immediately adjacent parcels, the southern half of Crown Pacfic's Bull
Springs Block, and land in the vicinity managed by the US Forest Service (USFS) that
take access from the Sisters Mainline Road and Bull Springs Road. Following this
formula, the applicant argues that the appropriate study area is the subject property, all
adjacent parcels, and the former Crown Pacific and USFS lands to the west that rely upon
CU -08-29
Verheyden
4
the Sisters Mainline Road and Bull Springs Road for access. Staff notes that the
Hogensen property is located approximately 2,600 feet to the west of the subject property.
In Hogensen and Taylor, the Hearings Officer concluded that the accepted forest
practices on those lands within the "study area" include: selective harvesting of trees,
hauling logs by truck, burning of slash/debris, prescribed burning of forested areas, aerial
chemical spraying, open space/wildllife habitat management, buffers, and outdoor
recreational activities. The harvesting, hauling, and burning practices occur
predominantly on the Crown Pacific lands to the west. Staff notes that the Hearings
Officer in Hogensen (p. 7) concluded that the study area is not subject to intensive tree
harvesting or chemical spraying, and does not have a large inventory of trees for harvest
due to low productivity and past thinning operations. This finding was affirmed on
appeal to LUBA in Sisters Forest Planning Committee v. Deschutes County.
The applicant states the subject parcel is bordered on all sides by F1 and F2 lands that are
generally used for open space/wildlife habitat management, buffers, outdoor recreational
activities, and rural dwellings. Additionally, the subject parcel is used for fire prevention
measures, open space, outdoor recreational activity, buffers, and conservation and
enhancement of wildlife habitat. No active harvesting of Ponderosa pine is currently
occurring on the subject parcel due to the current poor quality and quantity of tree stock.
The potential impacts of the more intensive accepted forest practices that could create
conflicts with a template dwelling include the following: noise and dust from harvesting
and hauling of logs; smoke from slash and prescribed burning, and chemical drift from
spraying. As noted above, these accepted forest practices are generally concentrated on
the former Crown Pacific lands which are located 1.5 miles to the west of Site 3. These
accepted forest practices could also potentially occur on the State of Oregon forestland
which touches the northwest comer of the parcel as well as the Cascade Timberland
forest parcel which is located just over 0.5 miles to the northwest of the intended building
site.
The applicant indicates that over 1200 feet of forestland would separate Site 3 from the
closest corner of the State of Oregon forestland parcel that could potentially involve
intensive forest practices. Therefore, the applicant concludes that conflicts are likely to
be minimal. In addition, although the presence of the dwelling may require coordination
between the applicant and the surrounding property owners regarding the timing of
burning, chemical spraying, etc., the applicant argues that such coordination does not
constitute a "significant" change in forest practices, nor would it significantly increase
the cost of such practices.
The applicant states that the minimal disturbance necessary to construct the proposed
dwelling, pond complex, and improve the associated driveway would not preclude
forestry activities on the subject parcel. Additionally, the Alternatives Analysis prepared
by John Jackson, a professional forester, indicates Site 3 would have the least impact on
adjacent forest land based on an analysis of physical and locational factors. Following
the direction given by LUBA in Sisters Forest Planning Committee v. Deschutes County,
CU -08-29
Verheyden
5
the applicant also worked with Mr. Jackson to develop a Forest Stewardship Plan to meet
the dwelling siting criteria and to guide future activities on the subject property.
The applicant indicates the intended building site is approximately 80' x 80' in size and
would be located approximately 770 feet from the north lot line, 500 feet from the east lot
line, 740 feet from the west lot line, and 1,720 feet from the south lot line. The adjacent
parcels are zoned Fl and F2 and range in size from 40 to 640 acres. The applicant argues
the nature of these parcels is essentially the same as the parcels adjacent to the Hogensen
parcel. In Hogensen, the Hearings Officer made the following finding:
The Hearings Officer finds that because of the size of the subject property, the
presence of the proposed dwelling would have fewer impacts on forest practices
on adjacent parcels That is because the distance between the proposed dwelling
and forest practices on adjacent parcels would attenuate impacts such as noise,
dust, smoke and chemical overspray. Trees harvested on the subject property
would be transported by truck on Sisters Mainline Road thus adding traffic to
this road during harvest. However, I find this traffic would not be generated by
the proposed dwelling and would occur with or without the dwelling as long as
trees are being harvested from the subject property.
The Hearings Officer found that those findings were equally applicable in the Taylor
application for a large tract dwelling application in the Bull Springs area. The Hogensen
and Taylor parcels in question were 320 and 322 acres in size respectively. For the
Taylor parcel (located approximately 4,050 feet south of the subject property), the
proposed building site was 450 feet from the southern boundary, 800 feet from the
eastern boundary, and over 1,800 feet from the western boundary. While the applicant's
parcel is only 80 -acres in size, the closest distances from the intended building site to
adjacent parcels is similar to that of Taylor's large tract dwelling application (500 and
800 feet for the applicant, and 450 and 800 feet for Taylor). The applicant argues that it
is for this reason the adopted findings from the Hogensen and Taylor decisions can be
used to explain why the proposed dwelling would not force a significant change in, or
significantly increase the cost of, accepted forest practices on adjacent parcels. Staff
concurs with the applicant, and believes the distance of proposed Site 3 from adjacent
parcels would be sufficient to provide an adequate buffer from forest practices on
adjacent lands, particularly given the generally low intensity of forest operations in the
area.
With respect to potential conflicts on the roads shared by the dwelling and the
surrounding Fl and F2 parcels, the applicant argues the addition of one dwelling to the
area would not result in significant conflicts with forest vehicles. Rather, the minimal
trips would be consistent with the current mixture of primarily residential and occasional
forest uses that rely upon Bull Springs Road to access Johnson Road."
Analysis
CU -08-29
Verheyden
6
LandWatch does not argue in either of its letters that the applicant fails to satisfy DCC
18.36.040(A). However, LandWatch makes a related argument that the application fails
to adequately analyze appropriate alternative building sites for the proposed dwelling
under DCC 18.36.060. Specifically, LandWatch argues that Site 3, which is the
applicants' preferred dwelling site, is not the best location for a dwelling. Both the
applicants and thestaff report rely in part on the location of Site 3 to show that the
proposed use will not force a significant change in forest practices in the area. However,
staffs analysis is not entirely premised on or reliant on the location of Site 3.
In Sisters Forest Planning Committee v. Deschutes County, 48 Or LUBA 78, 85 (2004) LUBA
reviewed the Hearings Officer's decision in CU 04-7 (A-04-11). In that case, the Hearings
Officer found that forest operations typically consist of "harvesting of trees, hauling logs by
truck, slash (debris) burning, prescribed burning, and aerial chemical spraying." LUBA found
that these attributes sufficiently describe forest operations generally.
Staff identified the nearest potential impacts on forest practices would be to the Crown Pacific
parcel and potentially to the parcel owned by the State of Oregon both located to the north of the
subject property. Staff concluded that based on the type of use occurring on those lands, and in
part the distance from Site 3 to those operations, that allowing a dwelling on the subject property
would not force a significant change in or cost of forest practices in the area. There is no
evidence in the record that would contradict these conclusions.
The information provided by the applicant is sufficient to show that the addition of a single
family dwelling in the area will not force a change in, or increase the cost of forest practices.
This criterion is met.
B. The proposed use will not significantly increase fire hazard or
significantly increase fire suppression costs or significantly increase risks to
fire suppression personnel.
FINDING: The staff report concludes that the application meets the above criterion. In
addition to the Burden of Pr00% staff relies on the applicants' Forest Stewardship Plan and
Alternative Residential Sites Analysis. The staff report relies in part on the location of Site 3 to
demonstrate compliance with this criterion. Again, I quote the staff report below and incorporate
its findings here.
Staff Report
"To address this criterion the applicant submitted an Alternatives Residential Sites
Analysis (Alternatives Analysis) and a Forest Stewardship Plan (Plan; incorporated
herein by reference), both prepared by Mr. Jackson. With respect to this criterion, the
Alternatives Analysis addresses the ability of each alternative site to minimize risk
associated with wildfire based on topography, prevailing winds, access, and surrounding
land use. Mr. Jackson concludes that Site 3 would best minimi7.e wildfire risk.
CU -08-29
Verheyden
7
In reviewing the Alternatives Analysis, staff has two concerns. First, Mr. Jackson cites as
a positive the "already completed hazardous fuels treatment." Staff questions whether
hazardous fuels treatment could have been completed at all the alternative sites,
providing a positive, or "plus", for each of the sites. Staff is unsure if the "already
completed hazardous fuels treatment" should be used solely for Site 3. That said, staff
acknowledges that even without the fuels treatment, Site 3 may still warrant a "plus"
rating for the Topography category. Second, for the Surrounding Land Use category, Mr.
Jackson states that Site 3 is centrally located, providing the applicant full opportunity to
manage hazardous fuels, while Site 4 has some additional potential for fire threat from
forest management activities on adjoining parcel to the west. Based on the map in the
Alternatives Analysis (page 7), it appears to staff that the distance from Site 3 to the
eastern lot line is similar to the distance of Site 4 to the western lot line. Both sites
appear to be centrally located. Staff believes the increased concern for Site 4 may be due
to the primarily westerly winds. Staff notes that even if Site 3 is given a "minus" rating
for Topography and Surrounding Land Use, Site 3 would still have a superior overall
rating for minimizing wildfire risk as compared to the other five sites.
The Forest Stewardship Plan outlines measures that the applicant has taken, and would
continue to take, to reduce fire hazards, including maintaining adequate fuel breaks,
reducing "ladder fuels," managing appropriate stand density, maintaining high tree
crowns, selecting appropriate fire -safe building materials, etc. In February 2007, the
applicant indicates that an approximately 35 -acre shaded fuel break was completed on the
parcel as part of the West Bend Hazardous Fuels Treatment Corridor, a component of the
Bend Community Wildfire Protection Plan. For this hazardous fuels treatment, a 200 -
foot -wide perimeter shaded fuel break was created on the west, south and majority of the
east edges of the property. Ladder fuel treatments were completed including pruning of
lower branches on trees and mowing the brush. Where areas of rocky outcrop were
present within portions of the 200 -foot area, the treatment width was modified.
Treatment corridors were expanded to include 200 feet on either side of the main access
road situated on the eastern edge of the property, up to the property edges. From January
to April 2008, the applicant states that 99.8% of the Juniper from the entire 80 -acre parcel
was removed. All slash/residue from the treatment activities was chipped and scattered
on site to maximize the return of biomass to the earth and minimize the emission of
smoke and greenhouse gases with burning. Along the north side of the parcel, brush was
mowed along the secondary access road, which runs nearly parallel along the majority of
the northern property line. In addition, a 5 -acre fuels treatment area (shaded fuel break)
was established around the intended home site to provide defensible and survivable space
around structures.
To supplement the fuels treatment detailed above, the applicant has created a series of
water access points from the intended building site and extending south (approximately
1,400 feet) along the driveway and main access road that runs along the eastern edge of
the property. At each of these access points, approximately 100-150 feet apart, water is
available from a 3 -inch water main at 100 gallons per minute (gpm). Several hundred
feet of hose would be available along this stretch of main access road in case of fire. in
addition, several spurs were created during this trenching process, radiating outward from
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8
the building site. Each of these spurs likewise contains a 3 -inch water main with 100
gpm potential water access. Over 2,500 feet of this 3 -inch water main is being installed.
According to the applicant, approximately 5 acres surrounding the building site is being
installed with an automatic irrigation system that can be used in time of fire. With the 3
inch water mains and cistern complex, multiple zones would be created around the
building site that can irrigate up to 1.3 acres at a time with 100 gpm of water. The 100
gpm fire suppression water delivery from these zones can be automatically or manually
adjusted depending on the fire behavior and direction. A gas -powered generator would
be present to facilitate unintemipted water delivery from the well/cistem/water main
complex in the event of a fire and/or interruption of electrical power. The applicant
indicates that in the event of fire, electrical service to the surrounding affected area is
routinely disconnected.
The submitted site plan also shows the applicant's intent to create an approximately 2 -
acre pond complex, west-northwest of the building site. This pond complex would serve
as a mechanical barrier to fire, in conjunction with the 200 -foot wide perimeter shaded
fuel break. The applicant asserts that these mechanical barriers to wildfire, west of the
building site, are especially important given the prevailing westerly winds during the
wildfire season. Further, this pond complex would serve as a potential water access
source and staging area for both ground and aerial wildfire suppression personnel.
The applicant asserts that the water access and fire suppression system would serve as a
direct line of defense against wildfire for the property owner, adjacent property owners,
and the West side of Bend. This system would also facilitate escape from wildfire should
that need arise,potentially act as a staging area for fire suppression personnel, and assist
with minimizing fire suppression costs and risks.
Lastly, the applicant agrees to implement the measures recommended in the Forest Stewardship
Plan, and would comply with the fire protection standards of DCC 1836 and the standards of the
Forestland Urban Interface Fire Protection Act. Staff recommends a condition of approval to
ensure continued implementation of the Plan."
Analysis
Again, LandWatch does not argue that the application fails to demonstrate compliance with DCC
18.36.040(B). LandWatch argues in its July 8, 2008 letter that a building site in the southeast
corner of the property is obviously a better location because it would be closest to firefighting
equipment and personnel access to the property. However, I don't view LandWatch's comments
to be an attempt to refute the information provided in the applicants' Forest Stewardship Plan.
The staff report shows that the stewardship plan and plans for water access points and pond
complex on the site would be sufficient to serve most if not all of the alternative dwelling
locations identified in the Alternative Residential Sites Analysis. The staff report also shows that
prior and ongoing fire suppression practices, including the water system, will be sufficient to
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9
protect the proposed dwelling from threat of fire, but may also benefit surrounding properties
from wildfire threats.
A condition of approval will require the applicants to continue implementing the Forest
Stewardship Plan. This criterion is met.
C. Prior to final approval of any use listed in DCC 18.40.030, the
land owner shall sign and record in the County Clerk's office a written
statement recognizing the rights of adjacent and nearby land owners to
conduct forest operations consistent with the Forest Practices Act and Rules.
FINDING: Staff recommends that as a condition of any approval, the owner shall sign and
record this statement and submit a copy of the recorded document to the Planning Division prior
to issuance of building permits. This will be required as a condition of approval. This criterion
is met.
3. Section 18.40.050, Standards for Single -Family Dwellings.
A. General provisions.
1. Dwellings listed as a conditional use under DCC 18.40.050 shall meet
the following standards:
a. One of the alternative tests set out in DCC 18.40.050(B) (lot of
record dwelling), (C) (large tract dwelling), or (D) (template dwelling);
FINDING: The applicant is seeking approval of a template dwelling as set forth in subsection
18.40.050(D). No other dwellings are proposed.
b. If the lot or parcel is part of a "tract," the remaining
undeveloped lots or parcels of the tract shall be consolidated into a single lot
or parcel, or the applicant shall sign and record with the County Clerk
covenants, conditions and restrictions (on a form substantially similar to that
set forth in DCC 18.40.140) prohibiting the siting of a dwelling on the
undeveloped portions of the tract. Such covenants, conditions and
restrictions are irrevocable, unless a statement of release is signed by the
County Planning Director, or his authorized representative.
FINDING: The subject property is not part of a tract. This criterion does not apply.
c. No other dwellings shall be located on the tract.
FINDING: No other dwellings are located on the subject property.
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d. The applicant shall provide evidence that any domestic water
supply is from a source authorized in accordance with the Department of
10
Water Resources Oregon Administrative Rules for the appropriation of
ground water (Oregon Administrative Rules 690, Division 10) or surface
water (Oregon Administrative Rules 690, Division 20) and not from a Class
II stream as defined in the Forest Practices Rule (Oregon Administrative
Rules 629-24-101(3)).
For purposes of DCC 18.40.050, evidence of a domestic water supply
means:
i. Verification from a water purveyor that the use described in
the application will be served by the purveyor under the purveyor's rights to
appropriate water; or
ii. A water use permit issued by the Water Resources Department
for the use described in the application; or
iii. Verification from the Water Resources Department that a
water use permit is not required for the use described in the application. If
the proposed water supply is from a well and is exempt from permitting
requirements under ORS 537.545, the applicant shall submit the well
construction report to the County upon completion of the well
FINDING: The applicants state that water will be provided by an on-site well, which is exempt
from permitting requirements under ORS.537.545. At the hearing the applicants provided
evidence in hearing Exhibit 2 that a functioning domestic water well has been installed on the
property. This criterion is met.
e. If road access to a dwelling is by a road owned and maintained by a
Private party or by the Oregon Department of Forestry, the Bureau of Land
Management or the U.S. Forest Service, then the applicant shall provide
proof of a longterm road access use permit or agreement. The road use
permit may require the applicant to agree to accept responsibility for road
maintenance.
FINDING: Road access to the parcel is via Bull Springs Road, a road dedicated to the
public and privately maintained via a Road Maintenance Agreement attached as Exhibit F
of the Burden of Proof.
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2. In addition, dwellings listed as a conditional use under DCC
18.40.030(Y) shall be subject to the following standards or conditions:
a. The conditional use standards set forth in DCC 18.40.040;
b. The siting criteria set forth in DCC 18.40.060;
c. The fire siting standards set forth in DCC 18.40.070;
d. The fire safety design standards for roads set forth in DCC 18.40.080;
e. The stocking requirements set forth in DCC 18.40.085, if applicable;
and
11
f. Any other provisions made applicable by DCC Title 18 or the
comprehensive plan.
FINDING: The standards of Section 18.40.040 have been addressed above. The siting, fire
siting, road design, and stocking standards and the other applicable sections are addressed below.
D. Template Dwelling. For approval under DCC 18.40.050(D), a
single-family dwelling shall meet the following requirements:
1. The lot or parcel is predominantly composed of soils that are:
b. Capable of producing 21 to 50 cubic feet per acre per year
of wood fiber if:
i. All or part of at least seven other lots or parcels that existed
on January 1,1993, are within a 160 acre square centered on the
center of the subject tract; and
ii. At least three dwellings existed on January 1,1993, and
continue to exist on the other lots or parcels.
FINDING: The staff report indicates that according to the Natural Resources
Conservation Service (NRCS) maps, approximately 20 percent of the subject property
consists of 155D soil (Wanoga sandy loam), which is capable of producing 50 cubic feet
per acre per year of wood fiber. Approximately 80 percent the subject property consists
157C soil (Wanoga-Fremkle-rock outcrop complex), which is capable of producing 47 to
50 cubic feet per acre per year of wood fiber. This information is unrefuted and I find
this sub criterion is met.
The staff report listed the following parcels as having the potential to satisfy the
remaining requirements of DCC 18.040.050(D).
Assessor Map and Tax Lot Number, Owner Property Existed On or Before
1. 17-11-00, 1302, Cascade Timberlands LLC No information.
2. 17-11-00, 1300, State of Oregon No information.
3. 17-11-00, 2719, Kelly & Karen Smith No information.
4. 17-11-00, 4300, Matthew & Rachel Thomas No information.
5. 17-11-00, 2709, Kelly & Karen Smith Assessor's records indicate a house
was constructed on the property in
1988.
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12
6. 17-11-00, 2710, Jennifer & Timothy Green
7. 17-11-00, 2720, Rex & Dawn Allison
Building permit B16971 was issued
in 1983; The Planning Division
approved a replacement dwelling
(AD -99-8) to replace a manufactured
home placed on the property in 1983.
Assessor's records indicate a house
was constructed on the property in
1992.
8. 17-11-00, 2713, Carl Hopp Parcel 1 of partition MJP-80-5.
The staff report also stated that the applicant's Burden of Proof asserted that tax lots 1300,
1302, 2719, and 4300 were established in 1969, 1961, 1990, and 1961 respectively.
However, staff could find no evidence in the record to support those dates. LandWatch
echoed staffs finding that some of the lots identified did not have proof establishing their
existence prior to January 1, 1993.
In their August 11, 2008, submission, the applicants provided supplemental information
on lots 1300, 1302, 2719, and 2724. The applicants' exp anation of the time and manner
of creation of each of these lots includes title records and approvals to the extent those
records are complete. I find this information sufficient to conclude that at least seven and
probably eight lots within the identified template were in existence prior to January 1,
1993. Of these, there is no dispute that at least three of those lots contained dwellings on
January 1, 1993, and continue to exist today. This criterion is met.
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2. Requirements of Applying Template
a. If a tract 60 acres or larger described in DCC
18.40.050(D) abuts a road or perennial stream,
the measurement shall be made by using a
160 -acre rectangle that is one mile long and
one-fourth mile wide centered on the center of
the subject tract and that is to the maximum
extent possible aligned with the road or stream.
b. If a road crosses the tract on which the dwelling
would be located, at least one of the three
required dwellings shall be on the same side of
the road as the proposed dwelling. However, one
of the three required dwellings shall be on the
same side of the road or stream as the tract, and:
i. Be located within a 160 -acre rectangle
that is one mile long and one-fourth mile
wide centered on the center of the subject
13
tract and that is to the maximum extent
possible aligned with the road or stream;
ii. Be within one-quarter mile from the edge
of the subject tract but not outside the
length of the 160 -acre rectangle, and on
the same side of the road or stream as the
tract.
c. If a tract reviewed under DCC 18.40.050(D)
abuts a road that existed on January 1,1993, the
measurement may be made by creating a
160 -acre rectangle that is one mile long and
one-fourth mile wide centered on the center of
the subject tract and that is to the maximum
extent possible, aligned with the road.
FINDING: There is considerable contention between the applicants and LandWatch
concerning the correct application of this provision. LandWatch raises several arguments
which are discussed below.
State Statute vs. County Code
LandWatch argues in their July 8, 2008 letter that DCC 18.36.050(DX2) is inconsistent
with its authorizing statutes ORS 215.750(5&6), and for that reason, that for this
application, only the statute should be applied. I disagree. DCC 18.36.050(D) rearranges
the text of ORS 215.750(6), but does not change the requirements of the statute in any
significant way. I find that there is no inconsistency between the County Code and the
statute.
However, ORS 215.750(6) is instructive in how the provisions of DCC 18.36.050(D)(2)
should be applied. DCC 18.36.050(D)(2)(a&b) implement the requirements of ORS
215.750(6)(a&b), and DCC 18.36.050(D)(2Xc) implements the requirements of ORS
215.750(5). The primary distinction between the two subsections of ORS 215.750 are
that ORS 215.750(5) applies to tracts of less than 60 acres, and ORS 215.750(6) applies
to tracts of 60 acres or larger. After reviewing the submissions of LandWatch and the
applicant, particularly the applicants' September 2, 2008, letter, it appears that all parties
agree that DCC 18.36.050(DX2)(a&b) apply to this application. That section
corresponds to ORS 215.750(6)(A&B). I find that this is the correct interpretation. DCC
18.36.050(D)(2)(c) does not apply to this application. Since the subject property is 80
acres in size, the applicants have correctly soingbt to comply with DCC
18.36.050(DX2)(a&b).
Abutting Road
It is clear that one complicating factor in correctly applying DCC 18.36.050(D)(2)(a&b)
to this application is the abundance of roads traversing the subject property. It appears
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14
that neither the authorizing statutes nor the County Code anticipated a circumstance
where up to six identifiable roads might be used to orient the required template.
LandWatch argues that Sisemore Road does not exist, and therefore, cannot be utilized
for the purpose of applying the template. The opponents argue that ORS 215.750 does
not define "road" and that the correct definition of "road" should be that used in ORS
368.001. I disagree. ORS Chapter 215 does define "road" by reference to that term as it
is used in ORS Chapter 92. ORS 215.010(1). The definition of "Road" in ORS
92.010(14) is as follows:
"Road" or "street" means a public or private way that is created to
provide ingress or egress for persons to one or more lots, parcels, areas or
tracts of land, excluding a private way that is created to provide ingress or
egress to such land in conjunction with the use of such land for forestry,
mining or agricultural purposes.
The staff report restates the County Code definition of "Road or Street."
"Road or street" means a public or private way created to provide ingress
or egress to one or more lots, parcels, areas or tracts of land.
The County Code definition of "road" as used in DCC 18.36.050(DX2Xa&b) is
substantially similar to the definition in ORS 92.010(14).
Both the staff report and the applicants' Burden of Proof and supplemental information of
August 11, 2008, provide substantial evidence that Sisemore Road has been a public right
of way, and road, since 1892. It also appears as an exception to the title of the subject
property. For these reasons, I find that Sisemore Road is a road that can be used for the
purposes of applying the template under both ORS 215.750(6) and DCC
18.36.050(DX2)(a&b).
LandWatch further argues that the road that will actually be used to access the subject
property, which is not Sisemore Road, should be the road to which the template is
oriented. LandWatch asserts that this interpretation of the statute is more consistent with
the legislative intent of ORS 215.705-750 than the applicants' use of Sisemore Road.
The intent of a statute must be determined first by looking to the text and context of the
statute. PGE v. BOLI, 317 Or 606 (1993). Only if the text is unclear can legislative
history be used to determine the Legislature's intent. Terms must be given their plain
meaning and terms may not be added or omitted from the text in reaching an
interpretation. ORS 174.010.
Here, the plain text of the statute is sufficient to reach a conclusion. The statute simply
does not require that the road used to access the tract be the road that is used to orient the
template. To accommodate LandWatch's reading of the statute would require the
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15
addition of terms and phrases that are not present in the text of either ORS
215.750(6)(a&b) or DCC 18.36.050(DX2)(a&b). This is not a permissible interpretation.
Orientation of the Template
DCC 18.36.050(D)(2)(a&b) requires that the 160 acre template, one mile long and one-
fourth mile wide, be "to the maximum extent possible" aligned with the road. Sisemore
Road essentially forms an "S" curve through the subject property. In this case, I interpret
the word "abut" as used in DCC 18.36.050(DX2) to mean "touches." There is no
additional instruction in the statute or DCC 18.36.050(DX2)(a&b) which tells an
applicant how the template must be oriented.
Land Watch argues that only the section of the road within the property boundary should
be used to orient the template. I find that this argument is contrary to the rules set forth in
PGE v. BOLI as discussed above.
LandWatch also argues that a slightly different template orientation based on linear
regression analysis, as shown in its submission of August 26, 2008, is aligned "to the
maximum extent possible" with Sisemore Road.
The applicants' Burden of Proof, Exhibit G shows the applicants' original orientation of
the template. In this version, the template touches tax lots 1302, 1300, 2719, 4300, 4303,
2709, 2710, 2720, 2713. In response to LandWatch's arguments, the applicants
submitted a possible alternative template orientation at PH -2 of their August 11, 2008
letter. This orientation shows an alignment drawn with input from the Deschutes County
Surveyor. The alignment attempts to generally follow the southeast to northwest path of
Sisemore Road in this part of the county. The applicants argue that either one of their
proposed template orientations complies with DCC 18.36.050(DX2Xa&b) because both
are a reasonable interpretation of the code provisions.
I agree with the applicants. In a case like this one, where the road at issue forms a curve
through the subject property, several different template orientations that meet the code
requirements are possible. Both of the applicants' proposed orientations (which are very
similar to each other) and LandWatch's suggested orientation appear to generally comply
with the requirement that the template be oriented "to the maximum extent possible" with
the abutting road. The record shows that the "S" curve of Sisemore Road within the
boundaries of the subject property results from a topographical constraint. The curve is
an aberration in what is otherwise the southeasterly to northwesterly path of Sisemore
Road. In such a situation, I cannot find that it is error to allow the applicants to select a
template orientation, from among several complying options, that fulfills the code
requirement that the template be oriented "to the maximum extent possible" to the
abutting road.
Alternative Roads
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16
In their August 11, 2008 supplement, applicants argue and provide evidence of five other
historic roads that they assert could be used to orient the template and that would result in
compliance with DCC 18.36.050(D)(2)(a&b). LandWatch disputes these claims.
I find that the applicants' have not sufficiently developed their arguments concerning
these other roads and possible alternative template orientations to allow for review. No
template drawings or other supporting evidence has been presented. It is also
unnecessary to consider these alternative roads because I have found that Sisemore Road
and the applicants' template orientation already comply with DCC 18.36.050(DX2)(a&b).
Finally, the staff report found that based on the survey map prepared by Hickman,
Williams & Associates, Inc. (applicant's Burden of Proof, Exhibit H), it appears that the
dwelling located on tax lot 2710 satisfies DCC 18.36.050(D)(2)(b)(i) and b(ii). I agree.
4. Section 18.40.060, Siting of dwellings and structures.
All new dwellings and structures approved pursuant to DCC
18.40.030 or permitted under DCC 18.40.020 shall be sited in accordance
with DCC 18.40.060 and DCC 18.40.070. Relevant physical and locational
factors including, but not limited to, topography, prevailing winds, access,
surrounding land use and source of domestic water shall be used to identify a
site which:
1. Has the least impact on nearby or adjacent lands zoned for forest or
agricultural use;
2. Ensures that forest operations and accepted farming practices will not
be curtailed or impeded;
3. Minimizes the amount of forest lands used for the building site, road
access and service corridors; and
4. Consistent with the applicable provisions of DCC 18.40.070,
minimizes the risks associated with wildfire.
FINDING: The applicants rely primarily on their Alternative Residential Sites Analysis for
compliance with these sections of the code. That analysis considers six alternative locations,
chosen by the applicants, for their potential to have the least impact on surrounding forest lands.
The sites are distributed throughout the subject property.
LandWatch has made two arguments related to compliance with this code provision. First, in
their July 8, 2008 letter they state:
The proposad location of the dwelling is obviously oriented to the
potential views from the top of the ridge which descends toward the
northwest. Obviously the best site for a dwelling would be in the
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17
southeast comer of the property, located closest to where firefighting
equipment and personnel would access the property. The lack of forestry
activities occurring to the south and east of the property would mean that
this location would not conflict with forestry operations. It would also
minimize the amount of forest lands used for road access since the
dwelling would be located not far into the parcel.
Second, in their August 26, 2008 submission, LandWatch generally argues that the
applicants' Alternative Residential Sites Analysis fails to analyze all of the available sites
that might satisfy this code section. LandWatch did not submit any evidence to support
either of these arguments.
In Sisters Forest Planning Committee v. Deschutes County, 49 Or LUBA 78 (2004), LUBA
found that where participants or opponents identify other locations on the property and argue
those locations better comply with the provisions of DCC 18.36.060, that it is incumbent on the
hearings officer to address those arguments.
The staff report found as follows:
"Staff believes the proposed dwelling site would meet these criteria based on the
distances between the dwelling and all lot lines, and the generally low intensity of
forestry operations in the area. The applicant indicates the intended building site
would be located approximately 770 feet from the north lot line, 500 feet from the
east lot line, 740 feet from the west lot line, and 1,720 feet from the south lot line.
Given these distances, staff believes the dwelling would observe sufficient buffers
between neighboring properties, and have little or no impact on adjacent lands.
As discussed above, the Hearings Officer in IHogensen concluded that the study
area is not subject to intensive tree harvesting or chemical spraying, and does not
have a large inventory of trees for harvest due to low productivity and past thinning
operations. Staff believes the current and historic logging operations of the area, in
conjunction with the buffers identified above, would result in a dwelling location
that would not curtail or impede forest or fanning operations.
According to the record, Site 3 would be located in a natural clearing in an area
where a number of existing roads traverse. For these reasons, a dwelling at Site 3
would require the least amount of ground disturbance for a house, accessory
structures, pond complex, and road access.
As detailed previously, the applicant has completed or proposed several measures to
minimize risks associated with wildfire including a 200 -foot -wide shaded fuel break
along the east, west, and south property lines; a 5 -acre shaded fuel break around the
proposed dwelling site; removal of over 99 percent of the juniper trees on-site; fuels
treatment along both the main and secondary access roads; and installation of water
access points and a 2 -acre pond. Compliance with DCC 18.36.070 is discussed below."
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18
In general, I agree with the findings of staff and incorporate them here by this reference.
As to LandWatch's first argument, the applicants replied to LandWatch's preferred site in
the southeast comer of the property by submitting a brief description and photographs of
the southeast corner of the property. See PH -19, 1-9 of applicants' August 11, 2008 letter.
The applicants also reference a July 14, 2008 letter from Oregon Department of Forestry
Interface Fire Specialist Thomase Andrade. The letter generally supports the proposition
that Site 3 is satisfactory for meeting the DOF fire protection regulations.
It is difficult to address LandWatch's argument that a site in the southeastern corner of
the subject property would be superior to other sites analyzed by applicants because it is
essentially a set of assertions. Central to these assertions is that the southeast corner will
be better simply because it is close to the access road.
Considering the southeastern comer of the property against the four locational factors of DCC
18.36.060(1), I find that this site would likely have higher impacts on adjacent forestry uses, that
may occur in the future as compared to dwelling sites that are more centrally located. As for
DCC 18.36.060(2), it appears that adjacent lands are not currently being farmed or forested, so
LandWatch's proposed site would likely have little short term effect on them. The applicant's
supplemental information demonstrates that as for DCC 18.36.060(3), building in the
southeastern corner of the subject property would require clearing in an area that is heavily treed
with ponderosa pines. Based on the submitted photo graphs of the area and those of Site 3, the
already cleared and centrally located Site 3 is superior. Finally, as to the risk of wildfire as stated
in DCC 18.36.060(4), the applicant points out that the neighboring properties have not
undergone fuel reduction activities. By comparison, Site 3 appears to already have a cleared area
of about 3.5 acres, and according to the Alternative Residential Sites Analysis is better suited to
wildfire defense. For all these reasons, I find that a building site in the southeast corner of the
subject property is less suitable than the other sites considered by the applicants.
LandWatch's second argument is not sufficiently developed to merit discussion. DCC 18.36.060
does not require an analysis of all potential dwelling sites. The applicants identified six
alternatives and subjected those sites to a complex matrix of considerations. LandWatch had the
opportunity to identify other potential building sites, but did not do so.
The criteria in this section are met.
5. Section 18.40.070. Fire siting standards for dwellings and structures.
A. Access.
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1. If a water supply, such as a swimming pool, pond, stream or lake, is
available and suitable for fire protection or is required under DCC 18.40.070,
then road access to within 15 feet of the water's edge shall be provided for
pumping units. The road access shall be constructed and maintained to
accommodate the maneuvering of fire fighting equipment during the fire
19
season. Permanent signs shall be posted along the access route to indicate the
location of the emergency water source.
FINDING: There currently is no emergency surface water source within the parcel.
However, the applicants state that they will build a 2 -acre pond complex, a portion of
which is currently excavated. The applicants indicate the pond complex would be located
in a naturally clear area, devoid of trees, directly west and northwest of the building site
to both serve as a mechanical buffer and barrier to wildfires, as well as providing a
reservoir to support wildfire suppression. Access to this reservoir would be via an
existing road. The road would be maintained to accommodate firefighting equipment and
permanent signs would be posted along the access route to indicate the location of the
reservoir. The applicants state aerial access would also be available for wildfire
suppression helicopters.
The subject property is within the Bend Rural Fire Protection District. As a condition of
approval the applicants, prior to Final Inspection, will provide correspondence from the
Bend Fire Department confirming that the access road to the proposed pond is adequate
for fire suppression equipment.
2. Road access to the dwelling or structure shall meet the road design
standards described in DCC 18.40.080.
FINDING: This is discussed below.
B. Firebreaks.
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1. Primary Firebreak. Prior to use, owners of dwellings and structures
shall construct a primary firebreak, not less than 10 feet wide, containing
nonflammable materials. This may include lawn, walkways, driveways,
gravel borders or other similar materials.
2. Secondary Firebreak. Owners of the dwellings and structures shall
construct a secondary firebreak of not less than 20 feet outside the primary
firebreak. This firebreak need not be bare ground, but can include a lawn,
ornamental shrubbery or individual or groups of trees separated by a
distance equal to the diameter of the crowns adjacent to each other, or 15
feet, whichever is greater. All trees shall be pruned to at least eight feet in
height. Dead fuels shall be removed.
3. Fuel Break. Owners of the dwellings and structures shall maintain a
fuel break extending a minimum of 100 feet in all directions around the
secondary firebreak. Individual and groups of trees within the fuel break
shall be separated by a distance equal to the diameter of the crowns adjacent
to each other, or 15 feet, whichever is greater. Small trees and brush
growing underneath larger trees shall be removed to prevent spread of fire
up into the crowns of the larger trees. All trees shall be pruned to at least
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eight feet in height. Dead fuels shall be removed. The fuel break shall be
completed prior to the beginning of the coming fire season.
FINDING: In addition to requirements listed above, the applicants agree to maintain the 5 -acre
fuel treatment area around the dwelling as recommended in the Forest Stewardship Plan. To
ensure compliance, a condition of approval requiring the applicant, prior to Final Inspection, to
provide to the Planning Division proof from the Bend Rural Fire Protection District that the
required fire breaks and fuel break meet these specifications. With imposition of conditions,
these criteria are met.
4. No portion of a tree or any other vegetation shall extend to within 15
feet of the outlet of a stovepipe or chimney.
FINDING: The applicants agree to comply with this criterion. A condition of approval will
ensure compliance.
C. Caretaker residences and private accommodations for fishing
shall not be located on hillsides steeper than 30 percent and containing
flammable fuels. A single family dwelling shall not be sited on a slope
greater than 40 percent.
FINDING: There are no caretaker residences or private accommodations for fishing proposed.
Based on staff's site visit, Site 3 would not be located on a slope greater than 40 percent. This
criterion is met.
D. The applicant for a single-family dwelling, caretaker residence
or private accommodations for fishing shall obtain an address from the
County address coordinator and shall display that number in a location of
the property that is clearly visible from the road used as the basis for
numbering. The numbers shall not be less than three inches in height, shall
be painted in a contrasting or visible color and shall comply with all other
applicable standards for signs.
FINDING: The subject property has an assigned address of 18680 Bull Springs Road, with the
address number visible from both Bull Springs Road and the internal access road.
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E. Structural Standards.
1. All dwellings and structures shall use noncombustible or fire resistant
roofing materials. This means roofing material identified as Class A, B or C
in the Oregon Uniform Building Code. Roof sprinklers are not an acceptable
alternative to this standard.
2. If the dwelling or structure has a chimney, it shall have a spark
arrester.
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FINDING: The applicants intend to build the dwelling using insulated concrete forms (ICF) and
metal roofing. The applicant also indicates that if any of the buildings has a chimney, the
chimney would have a spark arrester. This is required as a condition of approval.
F. Fire Protection. Single-family dwellings, caretaker residences
and private accommodations for fishing shall be Located upon a parcel for
which fire protection services are available or where alternative protective
measures are authorized by DCC 18.40.070(1?).
1. For the purposes of DCC 18.40.070 fire protection services are
available if the parcel is located within the boundaries of a fire protection
district or residential fire protection service is provided by contract, as
evidenced by a written, signed contract.
FINDING: As noted above, the subject property is located within the Bend Rural Fire
Protection District No. 2. This criterion is met.
2. If the dwelling or structure is not within a fire protection district, the
applicant shall provide evidence that the applicant has asked to be included
in the nearest such district.
FINDING: This criterion is not applicable.
6. Section 18.40.080. Fire safety design standards for roads.
The following standards apply to all roads and driveways, except for
private roads accessing only commercial forest uses, which access uses
permitted under DCC 18.40.020 or approved under DCC 18.40.030.
A. Roads, bridges and culverts shall be designed and maintained
to support a minimum gross vehicle weight (GVW) of 50,000 lbs. If bridges
or culverts are involved in the construction of a road or driveway, written
verification of compliance with the 50,000 lb. GVW standard shall be
provided by a Professional Engineer, registered in Oregon.
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B. Access roads shall have an unobstructed horizontal clearance
of not less than 20 feet and an unobstructed vertical clearance of not less than
13.5 feet, and provide an all-weather surface.
C. Turnarounds shall have a minimum of 50 feet of turn radius
with an all-weather surface and be maintained for turning of fire fighting
equipment.
D. Road grades should not exceed eight percent, with a maximum
of 12 percent on short pitches. Variations from these standards may be
granted by the fire service having responsibility for the area when
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topographic conditions make these standards impractical and where the local
fire protection district states their fire fighting equipment can negotiate the
proposed road grade.
FINDING: The applicants indicate that all access roads currently meet the above criteria and
standards. A condition of approval will require the applicants to provide to the Planning
Division correspondence from the Bend Fire Department stating that the above criteria have been
met.
7. Section 18.40.085, Stocking requirement.
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All dwellings approved under DCC 18.40.050 shall be subject to the
provisions of DCC 18.40.085.
A. Stocking Requirement.
1. Dwellings approved under DCC 18.40.050 shall include a condition
requiring the owner to plant a sufficient number of trees on the tract to
demonstrate that the tract is reasonably expected to meet Department of
Forestry stocking requirements specified in Department of Forestry
administrative rules in force at the time the approval is granted.
2. If the lot or parcel is more than 30 acres, the property owner shall
submit a stocking survey report to the county assessor and the assessor will
verify that the minimum stocking requirements have been met by the time
required by Department of Forestry rules.
B. Reporting Requirements.
1. The Planning Director or his designee shall notify the County
Assessor of any stocking requirement condition at the time the dwelling is
approved.
2. The property owner shall submit a stocking survey report to the
County Assessor and the Assessor shall verify that the minimum stocking
requirements have been met by the time required under Department of
Forestry rules. The assessor shall inform the Department of Forestry in
cases where the property owner has not submitted a stocking report or where
the survey report indicates that minimum stocking requirements have not
been met.
3. Upon notification by the Assessor, the Department of Forestry shall
determine whether the tract meets minimum stocking requirements of the
Forest Practices Act. That decision shall be solely the decision of the
Department of Forestry. If the department determines that the tract does
not meet those requirements, the department shall notify the owner and the
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Assessor that the land is not being managed as forest land. The assessor shall
then remove the forest land designation pursuant to ORS 321.359.
The tax penalty imposed by the Assessor under DCC 18.40.085 shall
be the only sanction for failure to meet stocking requirements.
FINDING: According to the County Assessor's records the subject property is receiving
special assessment for forest use at this time. The applicants' conformance with the
requirements of the Department of Forestry is outside the jurisdiction of the Planning
Division. The Assessor's Office received notice of this application and would receive a
copy of the final decision.
8. Section 18.40.090, Dimensional standards.
In an F-2 Zone, the following dimensional standards shall apply:
C. Building Height. No nonagricultural building or structure
shall be erected or enlarged to exceed 30 feet in height, except as approved
under DCC 18.120.040.
FINDING: The applicants indicate the proposed dwelling would meet the 30 -foot
building height restriction. A condition of approval required compliance with this section.
9. Section 18.40.100, Yards and setbacks.
A. The front yard setback 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 setback shall be a minimum of 25 feet, except a
parcel or lot with a side yard adjacent to zoned forest land shall have a
minimum side yard of 100 feet.
C. Rear yards shall be a minimum of 25 feet, except parcels or
lots with rear yards adjacent to zoned forest land shall have a minimum rear
yard of 100 feet.
D. The setback from the north lot line shall meet the solar setback
requirements in DCC 18.116.180.
E. In addition to the setbacks set forth herein, any greater
setbacks required by applicable building or structural codes adopted by the
State of Oregon and/or the County under DCC 15.04 shall be met.
FINDING: The subject property has frontage on Bull Springs Road, classified as a local
road requiring a 40 -foot front yard setback. The subject property is surrounded by lands
zoned forest use, therefore the required side and rear yard setbacks would be 100 feet. As
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proposed, Site 3 would observe a front yard setback of over 4,100 feet. Site 3 would
observe side yard setbacks of 500 feet from the east lot line, 1,720 feet from the south lot
line, and 740 feet from the west lot line. The rear yard setback would be 770 feet from
the north lot line for Site 3.
B. CHAPTER 18.88, WILDLIFE AREA COMBINING ZONE
1. Section 18.88.060, Siting Standards.
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A. Setbacks shall be those described in the underlying zone with
which the WA Zone is combined.
B. The footprint, including decks and porches, for new dwellings
shall be located entirely within 300 feet of public roads, private roads or
recorded easements for vehicular access existing as of August 5,1992 unless
it can be found that:
1. Habitat values (i.e., browse, forage, cover, access to water) and
migration corridors are afforded equal or greater protection through a
different development pattern; or,
2. The siting within 300 feet of such roads or easements for
vehicular access would force the dwelling to be located on irrigated land, in
which case, the dwelling shall be located to provide the least possible impact
on wildlife habitat considering browse, forage, cover, access to water and
migration corridors, and minimizing length of new access roads and
driveways; or,
3. The dwelling is set back no more than 50 feet from the edge of
a driveway that existed as of August 5,1992.
C. For purposes of DCC 18.88.060(5):
1. A private road, easement for vehicular access or driveway will
conclusively be regarded as having existed prior to August 5,1992 if the
applicant submits any of the following:
a. A copy of an easement recorded with the County Clerk prior
to August 5,1992 establishing a right of ingress and egress for vehicular use;
b. An aerial photograph with proof that it was taken prior to
August 5, 1992 on which the road, easement or driveway allowing vehicular
access is visible;
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c. A map published prior to August 5,1992 or assessor's map
from prior to August 5,1992 showing the road (but not showing a mere trail
or footpath).
2. An applicant may submit any other evidence thought to
establish the existence of a private road, easement for vehicular access or
driveway as of August 5,1992 which evidence need not be regarded as
conclusive.
FINDING: Based on staffs comparison of the aerial photos (applicant Exhibit J; 1976-1990)
and the county's Geographic Information System (GIS), it appears that several private roads in
existence prior to August 5, 1992 could satisfy this criterion. However, the aerial photos do not
include a scale or the location of the dwelling to allow staffto confirm that the dwelling would
be located within 300 feet of a road. In response to a request by staff on June 26, 2008 the
applicant submitted an aerial photo (labeled Exhibit 0) with a scale and the location of the
dwelling. Based on this information, it appears that the dwelling would be located within 300
feet of a road that existed as of August 5, 1992. This criterion is met.
2. Section 18.88.070. Fencing Standards.
A. New fences in the Wildlife Area Combining Zone shall be
designed to permit wildlife passage. The following standards and guidelines
shall apply unless an alternative fence design which provides equivalent
wildlife passage is approved by the County after consultation with the
Oregon Department of Fish and Wildlife:
1. The distance between the ground and the bottom strand or board of
the fence shall be at least 15 inches.
2. The height of the fence shall not exceed 48 inches above ground level.
3. Smooth wire and wooden fences that allow passage of wildlife are
preferred. Woven wire fences are discouraged.
B. Exemptions:
1. Fences encompassing less than 10,000 square feet which surround or
are adjacent to residences or structures are exempt from the above fencing
standards.
2. Corrals used for working livestock.
FINDING: The project does not propose any fencing. A condition of approval will
require the applicants to comply with the above -referenced requirements for any new
fences on the subject property in the future.
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26
IV. DECISION:
Based on the forgoing Findings of Fact and Conclusions of Law the proposed application to
establish a Template Dwelling in the F-1 zone is APPROVED.
Other permits may be required. The applicant is responsible for obtaining any necessary permits
from the Deschutes County Building Division, the Deschutes County Environmental Health
Division and the Deschutes County Road Department, as well as any required state and federal
permits.
V. CONDITIONS OF APPROVAL:
1. This approval is based upon the site plan and information submitted by the
applicant. Any substantial change in the approved plan would require a new
application.
2. The applicant/owner shall implement all of the recommendations contained in the
Forest Stewardship Plan, dated April 2007, and included in the record as the
applicant's Exhibit C. In the event there is a conflict between the Forest
Stewardship Plan and the conditions of approval in this decision, the Forest
Stewardship Plan shall control.
3. Prior to the issuance of any building permit, the applicant/owner shall sign and
record with the County Clerk a Farm and Forest Management Easement 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 30.936 or
30.937.
4. Prior to Final Inspection, the applicant/owner shall submit a well construction
report.
5. Prior to Final Inspection, the applicant/owner shall provide to the Planning
Division correspondence from the Bend Fire Department that the following
conditions have been met:
a. Road access to the proposed pond and permanent signage in compliance
with DCC 18.36.070(A).
b. Completion of the required firebreaks per DCC 18.36.070(B).
c. Compliance with the fire safety design standards for roads in DCC
18.36.080.
6. Prior to issuance of any building permit, the applicant shall provide to the
Planning Division the Class rating of any proposed roofing material to ensure
compliance with DCC 18.36.070(E)(1).
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7. In accordance with DCC 18.36.070(EX2), all chimneys shall be constructed with
a spark arrester. This shall be noted on the building plans.
8. All structures shall comply with the 30 -foot height limit in DCC 18.36.090(C).
9. Any fencing constructed as part of this development shall comply with the
standards detailed in DCC 18.88.070.
VII. DURATION OF APPROVAL:
The applicant shall submit an application for a building permit for the template dwelling within
four (4) years following the date this decision becomes final or obtain an extension of time
pursuant to Section 22.36.010 of the County Code.
Dated this 21.4(k -day of October, 2008
Mailed this �{ day of O" - r 2008
Kenneth D. Helm, Hearings Officer
THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS
TIMELY APPEALED.
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