HomeMy WebLinkAboutFlight Shop Decision Appeal DiscussionCommunity Development Department
Planning Division Building Safety Division Environmental Soils Division
P,0, Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005
(541)388-6575 FAX (541)385-1764
http://www.co,deschutes.or.us/cdd/
MEMORANDUM
DATE: July 30, 2013
TO: Board of County Commissioners
FROM: Will Groves, Senior Planner
RE: The Flight Shop and Aero Facilities Appeal / Hearings Officer's Decision (File
Nos. SP -13-7 and A-13-4).
Before the Board of County Commissioners (Board) is an appeal filed by The Flight Shop and
Aero Facilities. The appeal is submitted in response to a Deschutes County Hearings Officer's
decision that a proposed fueling station at the Bend Airport complies with all applicable
regulations. The appellant requests the Board formally reconsider the decision.
BACKGROUND
The applicant, Leading Edge Aviation, requested site plan approval to establish an aviation
fueling station at the Bend Airport. The property is owned by the City of Bend. The Hearings
Officer issued a decision on July 19, 2013 finding that the proposal complies with all applicable
regulations. A timely appeal was filed on July 26, 2012. The 150 -day time limit in this case will
expire on October 28, 2013.
APPEAL
The notice of appeal describes one assignment of error. This is summarized below, with
references to those pages within the decision where the Hearings Officer addressed the issue.
1. The Hearings Officer erred in determining that the Airport Master Plan and Airport
Layout Plan are not applicable to the proposal. (See Hearings Officer's decision pages
8-9)
As noted above, the 150 -day time limit provides sufficient time for Board review of this matter.
The appellant requests de novo review. The Board should review the notice of appeal to
determine that it is sufficiently specific so that the Board is able to respond to and resolve each
issue in dispute (See: DCC 22.32.020(A)).
If the Board decides to hear the appeal, the review shall be on the record unless the Board
decides to hear the appeal de novo because it finds the substantial rights of the parties would
Quality Services Performed with Pride
be significantly prejudiced without de novo review and it does not appear that the request is
necessitated by failure of the appellant to present evidence that was available at the time of the
previous review; or whether in its sole judgment a de novo hearing is necessary to fully and
properly evaluate a significant policy issue relevant to the proposed land use action (See: DCC
22.32.027(B)(2)(c) and (d)). 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 (See: DCC 22.32.027(B)(4)).
DECLINING REVIEW
If the Board 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. 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 (See: DCC 22.32.035(B) and (D)).
STAFF RECOMMENDATION
Staff recommends that the Board decline to hear this matter. It is Staff's opinion that the
substantial rights of the parties would not be prejudiced by declining review as a full and fair
hearing was granted before the Hearings Officer. Staff concurs with the Hearings Officer that
the plain language of the Code is determinative in this matter.
Attachments
1. Hearing Officer's decision (File no. SP -13-7)
2. Notice of Intent to Appeal (File no. A-13-4)
File No.: A-13-4 (SP -13-7)
Page 2 of 2
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P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005
(541)388-6575 FAX (541)3851764
Ilttpuwww.co.deschutes.or.tisjedd/
APPEAL APPLICATION
FEE: $2, 801
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.
4. If color exhibits are submitted, black and white copies with captions or shading delineating the color
areas shall also be provided.
It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 2232 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.
Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section
22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues.
Michael H. McGean, Francis Hansen & Martin obo
Appellant's Name (print): The .Flight Shop & Aero Facilities Phone: (541) 389-5010
Mailing Address: 1148 NW Hill Street City/State/Zip: Bend, OR 97701
Land Use Application Being Appealed: File No. SP -13-7, Leading Edge Aviation
Property Description: Township 17 ` :� , 13 Section 20 Tax Lot 2 0 0
Appellant's Signature:
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)
3/13
443-9
Statement on Appeal by Opponents The Flight Shop Inc. and Aero Facilities LLC
(collectively, "Appellants" 1
1. Standing.
Appellants have standing to appeal because they are an interested party, and filed
comments on the Application with the Planning Division.
2. Statement of Issue.
Appellants contend that the Hearing Officer erred by rejecting the arguments in their
written submissions and at the hearing in this matter, and in concluding that:
"The Hearings Officer finds I need not reach the merits of The Flight
Shop's arguments concerning the Application of the Airport Master Plan
and ALP to the Applicant's proposal because the plain language of
Section 18.76.100 makes it applicable only to conditional uses and not to
uses permitted outright in the AOD zone under Section 18.76.070(A) such
as fuel storage and sales. As discussed in the findings above, I have found
the Applicant's proposal falls within this outright permitted use"
The Hearings Officer's Decision is in conflict with the County's stated policy for the AD
zone, 18.76.010, and the Deschutes County Comprehensive Plan. Those ordinances
require adherence to the plan set forth in the 2002 Airport Master Plan and ALP, which
expressly calls for the proposed improvements to be located on a different portion of the
site, on the eastern side of the Airport.
3. Request for Review.
For the foregoing reasons, The Flight Shop, Inc. and Aero Facilities, LLC therefore
request review by the Board of County Commissioners.
Appellants request de novo review by the Board because it requires the interpretation of a
significant policy issue and the Deschutes County Comprehensive Plan zoning ordinance.
Dated this ZZc+hday of July 2013.
FRANCIS HANSEN & MARTIN LLP
Martin E. Hansen OSB #800526
Michael H. McGean OSB #004734
Attorneys for The Flight Shop, Inc. &
Pro Air, LLC
DECISION OF DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBER: SP -13-7
APPLICANT: Leading Edge Aviation
63048 Powell Butte Highway
Bend, Oregon 97701
PROPERTY OWNER: City of Bend
710 N.W. Wall Street
Bend, Oregon 97701
APPLICANT'S ATTORNEY: Sharon R. Smith
Bryant, Lovlien & Jarvis, PC
591 S.W. Mill View Way
Bend, Oregon 97702
OPPONENTS'
ATTORNEY: Michael H. McGean
Francis Hansen & Martin LLP
1148 N.W. Hill Street
Bend, Oregon 97701
Attorney for The Flight Shop, Inc. and Aero Facilities, LLC
REQUEST:
The applicant requests site plan approval to establish an
aviation fueling station in the AD Zone at the Bend Airport.
STAFF REVIEWER: William Groves, Senior Planner
HEARING DATE: May 28, 2013
RECORD CLOSED: June 20, 2013
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
Chapter 18.04, Title, Purpose and Definitions
* Section 18.04.030, Definitions
Chapter 18.76, Airport Development Zone -- AD
* Section 18.76.020, Standards in All Districts
* Section 18.76.050, Use Limitations
* Section 18.76.060, Dimensional Standards
* Section 18.76.070, Airfield Operations District (AOD)
* Section 18.76.100, Design and Use Criteria
Chapter 18.80, Airport Safety Combining Zone -- AS
* Section 18.80.026, Notice of Land Use and Permit Applications
* Section 18.80.028, Height Limitations
* Section 18.80.044, Land Use Compatibility
* Section 18.80.078, FAA Notification (Form 7460-1)
Chapter 18.116, Supplementary Provisions
* Section 18.116.020, Clear Vision Areas
* Section 18.116.030, Off-street Parking and Loading
* Section 18.116.031, Bicycle Parking
Chapter 18.124, Site Plan Review
* Section 18.124.030, Approval Required
* Section 18.124.060, Approval Criteria
* Section 18.124.070, Required Minimum Standards
B. Title 22 of the Deschutes County, the Land Use Procedures Ordinance
II. FINDINGS OF FACT:
A. Location: The subject property is located at the Bend Municipal Airport and is further
identified as Tax Lot 200 on Deschutes County Assessor's Map 17-13-20.
B. Zoning and Plan Designation: The subject property is zoned Airport Development
(AD), Airfield Operations District (AOD), and is also located within the Airport Safety (AS)
Combining Zone for the Bend Municipal Airport. The property is designated Airport
Develpment on the Deschutes County Comprehensive Plan Map.
C. Site Description: The Bend Municipal Airport is owned and operated by the City of
Bend. It consists of 177 predominantly level acres and is developed with a paved runway
and taxiways, aircraft hangars and tie -downs, and a variety of aircraft -related businesses
operating pursuant to leases with the city. Although the city operates the airport, it is
located outside the Bend city limits and therefore is subject to the county's land use
ordinances. The proposed fueling station would be located on a 6,500 -square -foot
leased area north of the existing Leading Edge Aviation Building, on the west of Taxiway
A and on the south side of Taxilane 7.
D. Surrounding Zoning and Land Uses: The Bend Municipal Airport is surrounded by
land zoned Multiple Use Agriculture (MUA-10) and developed primarily with rural
residences and small-scale farms. The airport is zoned AD and the subject fueling
station site would be surrounded by land within the AD Zone and developed with airport -
related uses. Those uses include an aircraft fueling station owned by The Flight Shop,
Inc. and Aero Facilities, LLC, the existing Fixed Base Operator (FBO) at the airport
(hereafter "The Flight Shop").
E. Procedural History: The application was submitted on April 16, 2013 and was accepted
by the county as complete on May 15, 2013. Therefore, the 150 -day period for issuance
of a final local land use decision under ORS 215.427 would have expired on October 14,
2013. A public hearing was scheduled for May 28, 2013. On that date and prior to the
hearing, the Hearings Officer conducted a site visit to the subject property and vicinity
accompanied by Senior Planner Will Groves. At the public hearing, the Hearings Officer
declared her observations and impressions from the site visit, received testimony and
evidence, left the written evidentiary record open through Jun 18, 2013, and allowed the
applicant through June 25, 2013 to submit final argument pursuant to ORS 197.763.
By an electronic message dated June 20, 2012 the applicant waived its right to submit
final argument and the record closed on that date. Because the applicant agreed to the
SP -13-7, Leading Edge Aviation Page 2
post -hearing schedule, under Section 22.24.140 of the county's procedures ordinance
the 150 -day period was extended for 14 days and now expires on October 28, 2013. As
of the date of this decision there remain 102 days in the extended 150 -day period.
F. Proposal: The applicant requests site plan approval to establish an aviation fueling
station on the subject site. The applicant currently operates an aviation -related business
at the Bend Airport that includes aircraft rental and instruction. The proposed aviation
fueling station would be located north of the applicant's existing facility, just northwest of
the intersection of Powell Butte Highway and Butler Market Road. The facility would
consist of two ground -mounted 12,000 -gallon Fire Guard fuel tanks and a self -serve
fueling system for aviation fuel (AV Gas and Jet A), as well as a paved standing and
maneuvering area for aircraft. The fueling station would be accessible to aircraft from
Taxiway A and would be accessible to fueling trucks from Taxilane 7. The proposed site
is a leased area approximately 6,500 square feet in size. The fuel tanks would occupy a
1,700 -square -foot area on the west side of the leased area. Three existing aircraft tie -
downs on the west side of Taxiway A and on the east side of the leased area would be
removed to provide aircraft access to the fueling station. Patrons of the fueling station
would pay for fuel using a credit card.
G. Public/Private Agency Notice and Comments: The Planning Division sent notice of
the applicant's proposal to a number of public and private agencies and received
responses from: the Deschutes County Transportation Planner; the City of Bend Fire
Department and Airport Manager; and the Oregon Department of Aviation. These
comments are set forth verbatim at pages 2 and 3 of the staff report and/or are included
in the record.' The following agencies did not respond or had no comments on the
applicant's proposal: the Deschutes County Building Division; and the City of Bend
Planning and Engineering Divisions and Public Works Department.
H. Public Notice and Comments: The Planning Division mailed individual written notice of
the applicant's proposal and the public hearing to the owners of record of all property
located within 250 feet of the subject property. The record indicates this notice was
mailed to 31 property owners. In addition, notice of the public hearing was published in
the Bend "Bulletin" newspaper, and the subject property was posted with a notice of
proposed land use action sign. As of the date the record closed, the county had received
one letter in response to this notice from Michael McGean representing The Flight Shop.
In addition, Mr. McGean and one member of the public testified at the public hearing.
Lot of Record: The staff report states the county recognizes the subject property as a
legal lot on the basis of previously -issued building and land use approvals thereon.
III. CONCLUSIONS OF LAW:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
COMPLIANCE WITH AD ZONE REQUIREMENTS
1 In her April 30, 2012 comments on the applicant's proposal, Sandra Larsen, Aviation Planning Analyst
with the Department of Aviation, stated the applicant is required to obtain approval from the Department
of Aviation for the proposed fueling station.
SP -13-7, Leading Edge Aviation Page 3
1. Chapter 18.76, Airport Development Zone -- AD
a. Section 18.76.020, Standards in All Districts
A. Approval Required. Any use in an AOD, ASD, or ARID District
shall be subject to DCC 18.124.
FINDINGS: The subject property is located within the Airfield Operations District (AOD) in the
AD Zone and therefore the proposed use is subject to site plan review under Chapter 18.124.
The applicant has applied for site plan approval. The proposal's compliance with the site plan
approval criteria is discussed in the findings below under Chapter 18.124.
B. Solar Setbacks. The setback from the north lot line shall meet
the solar setback requirements of DCC 18.116.180.
FINDINGS: The record indicates the north lot line of the Bend Airport would be over 1,000 feet
from the proposed fueling station, and therefore the Hearings Officer finds the proposed fueling
station would comply with the solar setback requirements of Section18.116.180, discussed in
the findings below.
C. Building Code Setbacks. 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
Deschutes County under DCC 15.04 shall be met.
FINDINGS: As discussed in the findings below, the proposed fuel tanks are located near
existing hangars. The applicant's burden of proof states these tanks do not require special
building setback requirements. The Deschutes County Building Division did not comment on the
applicant's proposal or identify any particular building code setbacks. Nevertheless, the
Hearings Officer is aware all applicable structural code provisions including setbacks will be
verified by the Building Division during building permit review. To assure the applicant's
proposal complies with any applicable building setbacks, I find that as a condition of approval
the applicant will be required to submit a revised site plan showing the distance between the
fuel tanks and the nearest hangar to the west.
The record indicates the proposed fuel tanks also must be located outside of the FAA -required
"object free area" designated on the Airport Master Plan. The submitted site plan shows the
location of the "object free area" as a line to the east of the proposed fueling station site and an
80 -foot setback between this line and the fuel tanks, thus demonstrating the fuel tanks will not
encroach into the "object free area."
The Hearings Officer finds that with imposition of the condition of approval described above the
applicant's proposal will satisfy this criterion.
D. Off -Street Parking and Loading. Off-street parking and
loading shall be provided subject to the parking provisions of
DCC 18.116.
FINDINGS: The proposal's compliance with these requirements is addressed in the findings
below under Chapter 18.116.
SP -13-7, Leading Edge Aviation
Page 4
E. Outdoor Lighting. All outdoor lighting shall be installed in
conformance with DCC 15.10.
FINDINGS: The applicant has not proposed outdoor lighting for the fueling station. However, to
assure compliance with this criterion the Hearings Officer finds the applicant will be required as
a condition of approval to install any outdoor lighting in compliance with the applicable
provisions of Chapter 15.10.
F. Excavation, Grading and Fill and Removal. Excavation,
grading and fill and removal within the bed and banks of a
stream or river or in a wetland shall be subject to DCC
18.120.050 and/or DCC 18.128.270.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject
property does not include a stream, river, or wetland.
G. Signs. All signs shall be constructed in accordance with the
provisions of DCC 15.08.
FINDINGS: The applicant's proposal does not include any signs. To assure compliance with
this criterion, the Hearings Officer finds that the applicant will be required as a condition of
approval to install any signs in compliance with the applicable criteria in Chapter 15.08.
b. Section 18.76.050, Use Limitations
The following limitations and standards shall apply to all permitted
uses in the Airport Districts:
A. The height of any plant growth or structure or part of a
structure such as chimneys, towers, antennas, power lines,
etc., shall not exceed 35 feet.
FINDINGS: The proposed fuel tanks would be 10 feet tall. No landscaping is proposed. As
discussed in the findings below the Hearings Officer has found that the applicant will be required
either to submit documentation that there are no unimproved areas on the fueling station site
that could be landscaped, or to submit a revised site plan showing the minimum landscaping
required by the site plan approval criteria in Chapter 18.124, including no trees taller than 35
feet in height at maturity.
B. In approach zones beyond the clear zone areas, no meeting
place designed to accommodate more than 25 persons for
public or private purposes shall be permitted.
FINDINGS: The proposed fueling station would be unmanned and would not be sited within the
Bend Airport approach zone, therefore satisfying this criterion.
C. All parking demand created by any use permitted by DCC
18.76 shall be accommodated on the subject premises
entirely off-street.
FINDINGS: Because the fueling station would be unmanned, the Hearings Officer finds no new
parking demand would be created and therefore no off-street parking is required.
SP -13-7, Leading Edge Aviation Page 5
D. No use permitted by DCC 18.76 shall require the backing of
traffic onto a public or private street or road right-of-way.
FINDINGS: The Hearings Officer finds the location of the proposed fueling station would not
require backing of traffic onto a public or private street or road right-of-way. Aircraft would
access the fueling station from Taxiway A and fueling trucks would have access from Taxilane
7, neither of which abuts a public or private street. In addition, the submitted site plan shows
there would be sufficient space at the fueling station for on-site standing and maneuvering of
aircraft and fuel trucks.
E. No power lines shall be located in clear zones.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant
does not propose any overhead power lines.
F. No use shall be allowed which is likely to attract a large
quantity of birds, particularly birds which normally fly at high
altitudes.
FINDINGS: The Hearings Officer finds the proposed fueling station is not a use that would
attract birds.
c. Section 18.76.060, Dimensional Standards
The following dimensional standards shall apply in the Airport
Districts:
* * *
B. An airport related use or structure located adjacent to or
across the street from an existing residential use or platted
residential lot shall not exceed 70 percent lot coverage and
shall require off street parking and loading areas.
FINDINGS: The Bend Airport is located across the street from existing residential uses and
platted residential lots. The record indicates current lot coverage at the airport is approximately
40 percent. The Hearings Officer finds the small size of the proposed fueling station would not
increase lot coverage within the airport to exceed 70 percent. As discussed elsewhere in this
decision, I have found no on-site parking or loading is required for the unmanned facility.
C. The minimum setback between any structure and an arterial
right-of-way shall be 100 feet. The minimum setback between
any structure and a collector right-of-way shall be 50 feet.
The minimum setback between any structure and all local
streets shall be 20 feet.
FINDINGS: Powell Butte Highway, a designated rural arterial road, abuts the Bend Airport on
the west. The applicant's submitted site plan shows the proposed fueling station would be
located over 350 feet from the highway right-of-way, therefore satisfying this criterion.
SP -13-7, Leading Edge Aviation
Page 6
D. The minimum setback between any structure and a property
line adjoining a residential use or lot shall be 50 feet.
FINDINGS: The record indicates the closest residential use is located across Powell Butte
Highway to the west. As discussed above, the proposed fueling station would be over 350 feet
from Powell Butte Highway, and therefore more than 50 feet from the nearest residential use.
F. The minimum side setback between any structure and a
property line shall be three feet, and the minimum total of
both side setbacks shall be 12 feet.
FINDINGS: The record indicates the proposed fueling station would be located over 100 feet
from the airport's side lot lines, therefore satisfying this criterion.
G. The minimum rear setback between any structure and a rear
property line shall be 50 feet.
FINDINGS: The applicant's submitted site plan shows the rear setback for the proposed fueling
station would exceed 100 feet, therefore satisfying this criterion.
d. Section 18.76.070, Airfield Operations District (AOD)
Uses Permitted Outright. The following uses and their accessory
uses are permitted outright:
A. Runway, taxiway, service road, fuel storage and sales and
emergency repair.
B. Facilities approved or mandated by the FAA or Oregon State
Aeronautics Division specifically supporting airport
operations. (Emphasis added.)
FINDINGS: The proposed fueling station is permitted outright in the ASD as `fuel storage and
sales."
f. Section 18.76.100, Design and Use Criteria
The following dimensional standards shall apply in the Airport
Districts:
The Planning Director or Hearings Body shall take into account the
impact of any proposed conditional use within the AD Zone on
nearby residential and commercial uses, and on the capacity of
transportation and other public facilities and services. In approving
a proposed conditional use, the Planning Director or Hearings Body
shall find that:
A. The proposed use is in compliance with the Comprehensive
Plan, including the 1994 Bend Airport Master Plan as
amended (supplemented) in 2002.
SP -13-7, Leading Edge Aviation
Page 7
B. The proposed use is in compliance with the intent and
provisions of DCC Title 18.
C. Any adverse social, economical, physical or environmental
impacts are minimized.
D. The proposed use is not sensitive to noise of the character
anticipated by the current and expected noise level contours
of the airport.
E. The proposed use is compatible with adjacent agricultural
and residential uses.
F. There are sufficient public facilities and services to support
the proposed use.
G. The location and site design of the proposed facility will not
be hazardous to the safety and general welfare of
surrounding properties, and that the location will not
unnecessarily restrict existing and future development of
surrounding lands as indicated in the Comprehensive Plan.
H. The use shall make the most effective use reasonably
possible of the site topography, existing landscaping and
building placement so as to preserve existing trees and
natural features, preserve vistas and other views from public
ways, minimize visibility of parking, loading and storage
areas from public ways and neighboring residential uses, and
minimize intrusion into the character of existing
developments and land uses in the immediate vicinity of the
proposed use. (Emphasis added.)
FINDINGS: The above -underscored language makes clear Section 18.76.100 applies only to
conditional uses and not to outright permitted uses such as the applicant's proposed fueling
station.2 Nevertheless, The Flight Shop argues the Hearings Officer should require the applicant
to demonstrate its proposal is consistent with the comprehensive plan and the Bend Airport
Master Plan. The Flight Shop argues the proposal conflicts with the Airport Master Plan
because the plan shows a second fueling station at a different location than that proposed by
the applicant — i.e., on the east side of the runway. In his May 28, 2013 memorandum, the Flight
Shop's attorney Michael McGean stated in relevant part:
"The County cannot approve a site plan application for a use that is in conflict
with the current 2002 Airport Layout Plan approved by the FAA and the City of
Bend. The Comprehensive Plan for Deschutes County acknowledges that the
2002 ALP 'is the guiding document for airport planning and development.' (Ex. C,
Ordinance 2012-005, p. 48. See also OAR [Oregon Administrative Rules] 660-
013-0030, requiring coordination of any land use regulation with existing
2 With the exception of Paragraphs (A) and (C) of this section, all of the factors required to be considered
are addressed through other approval criteria in the AD and AS Zones and in the site plan provisions,
discussed in the findings below.
SP -13-7, Leading Edge Aviation
Page 8
acknowledged plans." The applicant is in effect asking the County to amend the
ALP."
The record includes considerable written testimony from the Flight Shop, the applicant and Gary
Judd, the Bend Airport Manager, concerning the applicable provisions of the Airport Master Plan
and ALP, and whether and to what extent they affect the siting of airport -related uses through
the county's land use process.
The Hearings Officer finds I need not reach the merits of The Flight Shop's arguments
concerning application of the Airport Master Plan and ALP to the applicant's proposal because
the plain language of Section 18.76.100 makes it applicable only to conditional uses and not to
uses permitted outright in the AOD Zone under Section 18.76.070(A) such as "fuel storage and
sales." As discussed in the findings above, I have found the applicant's proposal falls within this
outright permitted use.
For the foregoing reasons, the Hearings Officer finds that with imposition of the conditions of
approval described above, the applicant's proposal satisfies all applicable approval criteria in
the AD Zone.
COMPLIANCE WITH AS ZONE REQUIREMENTS
2. Chapter 18.80, Airport Safety Combining Zone - AS
a. Section 18.80.026, Notice of Land Use and Permit Applications
Except as otherwise provided herein, written notice of applications for
land use or limited land use decisions, including comprehensive plan
or zoning amendments, in an area within this overlay zone, shall be
provided to the airport sponsor and the Department of Aviation in the
same manner as notice is provided to property owners entitled by law
to written notice of land use or limited land use applications. [ORS
836.623(1); OAR 738-100-010; ORS 215.416(6); ORS 227.175(6)]
For the Redmond, Bend, Sunriver, and Sisters airports:
A. Notice shall be provided to the airport sponsor and the
Department of Aviation when the property, or a portion thereof,
that is subject to the land use or limited land use application is
located within 10,000 feet of the sides or ends of a runway:
B. Notice of land use and limited land use applications shall be
provided within the following timelines.
SP -13-7, Leading Edge Aviation
1. Notice of land use or limited land use applications
involving public hearings shall be provided prior to the
public hearing at the same time that written notice of
such applications is provided to property owners
entitled to such notice.
2. Notice of land use or limited land use applications not
involving public hearings shall be provided at least 20
Page 9
days prior to entry of the initial decision on the land use
or limited land use application.
3. Notice of the decision on a land use or limited land use
application shall be provided to the airport sponsor and
the Department of Aviation within the same timelines
that such notice is provided to parties to a land use or
limited land use proceeding.
4. Notices required under DCC 18.80.026(B)(1-3) need not
be provided to the airport sponsor or the Department of
Aviation where the land use or limited land use
application meets all of the following criteria:
a. Would only allow structures of Tess than 35 feet
in height;
b. Involves property located entirely outside the
approach surface;
c. Does not involve industrial, mining or similar
uses that emit smoke, dust or steam; sanitary
landfills or water impoundments; or radio,
radiotelephone, television or similar
transmission facilities or electrical transmission
lines; and
d. Does not involve wetland mitigation,
enhancement, restoration or creation.
FINDINGS: The subject property is located within the AS Zone. The record indicates notice of the
applicant's proposal and the public hearing was provided to the airport sponsor — the City of Bend
— as well as to the Department of Aviation. The staff report notes that notice of this decision also
will be provided to these entities within the same timelines that such notice is provided to parties to
a land use proceeding.
b. Section 18.80.028, Height Limitations
All uses permitted by the underlying zone shall comply with the
height limitations in DCC 18.80.028. When height limitations of the
underlying zone are more restrictive than those of this overlay zone,
the underlying zone height limitations shall control. [ORS 836.619;
OAR 660-013-0070]
A. Except as provided in DCC 18.80.028(B) and (C), no structure
or tree, plant or other object of natural growth shall penetrate
an airport imaginary surface. [ORS 836.619; OAR 660-013-
0070(1)]
B. For areas within airport imaginary surfaces but outside the
approach and transition surfaces, where the terrain is at higher
SP -13-7, Leading Edge Aviation Page 10
elevations than the airport runway surfaces such that existing
structures and permitted development penetrate or would
penetrate the airport imaginary surfaces, a local government
may authorize structures up to 35 feet in height.
C. Other height exceptions or variances may be permitted when
supported in writing by the airport sponsor, the Department of
Aviation and the FAA. Applications for height variances shall
follow the procedures for other variances and shall be subject
to such conditions and terms as recommended by the
Department of Aviation and the FAA (for Redmond, Bend and
Sunriver.)
FINDINGS: The proposed fueling station would be 10 feet tall at its highest point. The applicant's
burden of proof states in relevant part:
"The proposed development falls within the Transitional Surface of the Bend
Airport Safety Combining Zone. The 2002 ALP [Airport Layout Plan] was submitted
as Exhibit 1. The draft ALP from the recent Master Plan update process was
submitted as Exhibit 2. Due to the runway shift, the existing approved ALP (2002)
is not current with regard to the actual runway transitional surfaces because the
future runway location was conceptual. The draft ALP currently under review at the
FAA does include the transitional surface information based on the current runway
location and applicable FAA design standards.
The relevant information with regard to conformance with FAA design standards
regarding transitional surface penetrations is the APL/TOFA (E/F) line depicted in
both the draft ALP drawing and the Site Plan (Exhibit 3). This line corresponds to
the Aircraft Parking Line and is also shown as a Building Restriction Line, BRL
(16), in the ALP. The notation 16 associated with this line establishes that, up to
this line, structures can be constructed up to 16 feet in height without penetrating
the transitional surface. Consequently, the proposed tank installation at 10 feet will
not be a transitional surface penetration. Based on the definition of 'Transitional
Surface' in 18.80.022, the proposed development would not penetrate the
Transitional Surface of the Bend Airport."
The record indicates the applicant's statements were reviewed by Peter Russell, Deschutes
County Transportation Planner, and found to be accurate. The Hearings Officer has reviewed the
documents identified by the applicant and concurs with the applicant's analysis. Therefore, I find
the proposed fueling station will satisfy this criterion. And as discussed in the findings above under
the AD Zone, I have found landscaping required for the fueling station shall not exceed a height of
35 feet at maturity.
c. Section 18.80.044, Land Use Compatibility
Applications for land use or building permits for properties within the
boundaries of this overlay zone shall comply with the requirements of
DCC 18.80 as provided herein. When compatibility issues arise, the
Planning Director or Hearings Body is required to take actions that
eliminate or minimize the incompatibility by choosing the most
compatible location or design for the boundary or use. Where
compatibility issues persist, despite actions or conditions intended to
SP -13-7, Leading Edge Aviation Page 11
eliminate or minimize the incompatibility, the Planning Director or
Hearings Body may disallow the use or expansion, except where the
action results in loss of current operational levels and/or the ability of
the airport to grow to meet future community needs. Reasonable
conditions to protect the public safety may be imposed by the
Planning Director or Hearings Body. [ORS 836.619; ORS 836.623(1);
OAR 660-013-0080]
A. Noise. Within airport noise impact boundaries, land uses shall
be established consistent with the levels identified in OAR 660,
Division 13, Exhibit 5 (Table 2 of DCC 18.80). Applicants for any
subdivision or partition approval or other land use approval or
building permit affecting land within airport noise impact
boundaries, shall sign and record in the Deschutes County
Book of Records, a Declaration of Anticipated Noise declaring
that the applicant and his successors will not now, or in the
future complain about the allowed airport activities at the
adjacent airport. In areas where the noise level is anticipated to
be at or above 55 Ldn, prior to issuance of a building permit for
construction of a noise sensitive land use (real property
normally used for sleeping or as a school, church, hospital,
public library or similar use), the permit applicant shall be
required to demonstrate that a noise abatement strategy will be
incorporated into the building design that will achieve an
indoor noise level equal to or less than 55 Ldn. [NOTE: FAA
Order 5100.38A, Chapter 7 provides that interior noise levels
should not exceed 45 decibels in all habitable zones.]
FINDINGS: Section 18.80.022(G) defines "Airport Noise Impact Boundary" as areas "located
within 1,500 feet of an airport runway or within established noise contour boundaries exceeding
55 Ldn." The proposed fueling station would be located within a noise impact boundary because it
would be within 1,500 feet of the runway. The staff report states, and the Hearings Officer agrees,
that the proposed fueling station would not be incompatible with airport activities because of the
nature of the use -- i.e., an unmanned, self-service fueling station. I further find establishment of the
proposed fueling station would not result in loss of current operational levels and/or the ability of the
airport to grow to meet future community needs.
The proposed fueling station is not a noise sensitive use. However, because this decision is one
affecting land within airport noise impact boundaries, the Hearings Officer finds the applicant will be
required as a condition of approval to sign and record in the Deschutes County Book of Records a
Declaration of Anticipated Noise declaring that the applicant and its successors will not complain
about the allowed airport activities at the airport.
For the foregoing reasons, and with imposition of the above-described condition of approval, the
Hearings Officer finds the applicant's proposal satisfies this criterion.
B. Outdoor lighting. No new or expanded industrial, commercial
or recreational use shall project lighting directly onto an
existing runway or taxiway or into existing airport approach
surfaces except where necessary for safe and convenient air
travel. Lighting for these uses shall incorporate shielding in
SP -13-7, Leading Edge Aviation Page 12
their designs to reflect light away from airport approach
surfaces. No use shall imitate airport lighting or impede the
ability of pilots to distinguish between airport lighting and other
lighting.
FINDINGS: The staff report states this criterion does not apply to the applicant's proposal since
it is an aviation -related use. The Hearings Officer agrees that the proposal is neither an
industrial nor recreational use. Nevertheless, I find it is a "commercial use," defined in Section
18.04.030 as:
* * * the use of land primarily for the retail sale of products or services, including
offices. It does not include factories, warehouses, freight terminals or wholesale
distribution centers.
The record indicates that aircraft owners/pilots will purchase fuel at the proposed fueling station
through a self -serve system which will allow them to use some type of credit card. I find this
system clearly constitutes "retail sale of products." Therefore, I find this outdoor lighting criterion
is applicable. The applicant has not proposed any outdoor lighting for the fueling station.
However, to assure compliance with this criterion I find the applicant will be required as a
condition of approval to install any outdoor lighting that is shielded so that it does not project
lighting directly onto the runway or taxiway or into existing airport approach surfaces.
C. Glare. No glare producing material, including but not limited to
unpainted metal or reflective glass, shall be used on the
exterior of structures located within an approach surface or on
nearby lands where glare could impede a pilot's vision.
FINDINGS: According to the AS Zone map, the proposed fueling station is not located in an
approach surface. The burden of proof states the metal fuel tanks will be painted white. The record
indicates, and the Hearings Officer's site visit confirmed, that the nearby hangars are painted a light
non -reflective color. For these reasons, I find this criterion is satisfied.
D. Industrial emissions. No new industrial, mining or similar use,
or expansion of an existing industrial, mining or similar use,
shall, as part of its regular operations, cause emissions of
smoke, dust or steam that could obscure visibility within
airport approach surfaces, except upon demonstration,
supported by substantial evidence, that mitigation measures
imposed as approval conditions will reduce the potential for
safety risk or incompatibility with airport operations to an
insignificant level. The review authority shall impose such
conditions as necessary to ensure that the use does not
obscure visibility.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the proposed fueling
station is not a new industrial, mining or similar use.
E. Communications Facilities and Electrical Interference. No use
shall cause or create electrical interference with navigational
signals or radio communications between an airport and
aircraft. Proposals for the location of new or expanded radio,
SP -13-7, Leading Edge Aviation
Page 13
radiotelephone, and television transmission facilities and
electrical transmission lines within this overlay zone shall be
coordinated with the Department of Aviation and the FAA prior
to approval. Approval of cellular and other telephone or radio
communication towers on leased property located within
airport imaginary surfaces shall be conditioned to require their
removal within 90 days following the expiration of the lease
agreement. A bond or other security shall be required to ensure
this result.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the proposed fueling
station does not constitute or include a communication facility.
F. Limitations and Restrictions on Allowed Uses in the RPZ,
Approach Surface, and Airport Direct and Secondary Impact
Areas.
For the Redmond, Bend, Sunriver, and Sisters airports, the land
uses identified in DCC 18.80 Table 1, and their accessory uses,
are permitted, permitted under limited circumstances, or
prohibited in the manner therein described. In the event of
conflict with the underlying zone, the more restrictive
provisions shall control. As used in DCC 18.80.044, a limited
use means a use that is allowed subject to special standards
specific to that use.
FINDINGS: The staff report states, and the Hearings Officer agrees, that because Table 1 of
Chapter 18.80 shows public airport use as a permitted use in the Transitional Surface and Direct
Impact Areas, the proposed fueling station would be allowed outright on the subject site.
d. Section 18.80.078, FAA Notification (Form 7460-1)
A. Federal Aviation Regulation (FAR) Part 77 requires that anyone
proposing to construct anything which may obstruct the use of
airspace by aircraft to provide a notice to that effect to the FAA.
Generally, construction proposals in the vicinity of airports
may obstruct airspace. Notice to the FAA is required for
anything which may affect landing areas, either existing or
planned, which are open to the public, or are operated by one
of the armed forces.
B. FAA Form 7460-1 "Notice of Proposed Construction or
Alteration" is the notification form. It is to be submitted by the
applicant directly to the FAA. Forms are available from the
Oregon Department of Aviation or the Northwest Regional
Office of the FAA.
C. FAA Form 7460-1 should be submitted if the proposed
construction or alteration meets the following criteria:
SP -13-7, Leading Edge Aviation
1. Anything over 200' AGL (above ground level at the site).
Page 14
2. Proposals in the vicinity of an airport, if the proposal
would be higher than a slope from the nearest point on
a runway and increasing its elevation at a ratio of:
Longest Runway Proximity to Runway Slope
> 3,200' Within 20,000' 100 to 1
3,200' or less Within 10,000' 50 to 1
For a Heliport Within 5,000' 25 to 1
D. For identification purposes, Deschutes County has established
FAA Notification Areas around each of the public use airports
within Deschutes County. The boundaries of these areas are
based on the runway length. If a proposed construction project
is located in one of these areas, the applicant shall determine if
the height of the proposed project will require FAA notification
as per DCC 18.80.076(C). In Deschutes County, each of the
public -use airports has a runway longer than 3,200 feet.
Therefore, each FAA notification area includes all land within
20,000 feet of each airport's runway(s), and the slope to be
used is 100 to 1.
E. FAA notification is NOT required for any of the following
construction or alteration:
1. Any object that would be shielded by existing structures
of a permanent and substantial character or by natural
terrain or topographic features of equal or greater
height, and would be located in the congested area of a
city, town, or settlement where it is evident beyond all
reasonable doubt that the structure so shielded will not
adversely affect safety in air navigation.
2. Any antenna structure of 20 feet or less in height except
one that would increase the height of another antenna
structure.
3. Any air navigation facility, airport visual approach or
landing aid, aircraft arresting device, or meteorological
device, of a type approved by the Administrator, or an
appropriate military service on military airports, the
location and height of which is fixed by its functional
purpose.
4. Any construction or alteration for which notice is
required by any other FAA regulation.
FINDINGS: The Hearings Officer finds the applicant's proposed fueling station is not one of the
uses exempt from the requirement to notify the FAA. However, I find the applicant bears the
SP -13-7, Leading Edge Aviation Page 15
responsibility to coordinate with the Bend Airport manager and to submit FAA Form 7460-1 for the
proposed fueling station. The staff report recommends, and I agree, that the applicant be required
as a condition of approval to provide to the Planning Division written documentation that final
approval of Form 7460-1 has been given by the FAA prior to issuance of building permits.
For the foregoing reasons, the Hearings Officer finds that with imposition of the conditions of
approval described above, the applicant's proposal satisfies the applicable criteria in the AS Zone.
COMPLIANCE WITH SUPPLEMENTARY PROVISIONS
3. Chapter 18.116, Supplementary Provisions
a. Section 18.116.020, Clear Vision Areas
A. In all zones, a clear vision area shall be maintained on the
corners of all property at the intersection of two streets or a
street and a railroad. A clear vision area shall contain no
planting, fence, wall, structure, or temporary or permanent
obstruction exceeding three and one-half feet in height,
measured from the top of the curb or, where no curb exists,
from the established street centerline grade, except that trees
exceeding this height may be located in this area provided all
branches and foliage are removed to a height of eight feet
above the grade.
B. A clear vision area shall consist of a triangular area on the
corner of a lot at the intersection of two streets or a street
and a railroad. Two sides of the triangle are sections of the lot
lines adjoining the street or railroad measured from the
corner to a distance specified in DCC 18.116.020(B)(1) and (2).
Where lot lines have rounded corners, the specified distance
is measured from a point determined by the extension of the
lot Tines to a point of intersection. The third side of the
triangle is the line connecting the ends of the measured
sections of the street lot lines. The following measurements 0
fshall establish clear vision areas within the County:
1. In an agricultural, forestry or industrial zone, the
minimum distance shall be 30 feet or at intersections
including an alley, 10 feet.
2. In all other zones, the minimum distance shall be in
relationship to street and road right of way widths as
follows:
Right -of -Way Width
Clear Vision
80 feet or more
20 feet
60 feet
30 feet
50 feet and less
40 feet
SP -13-7, Leading Edge Aviation
Page 16
FINDINGS: The Hearings Officer finds this criterion is not applicable because the proposed
fueling station is not located at, and will not impact, any clear vision area at the intersection of
two streets or a street and a railroad.
b. Section 18.116.030, Off-street Parking and Loading
A. Compliance. No building or other permit shall be issued until
plans and evidence are presented to show how the off-street
parking and loading requirements are to be met and that
property is and will be available for exclusive use as off-
street parking and loading. The subsequent use of the
property for which the permit is issued shall be conditional
upon the unqualified continuance and availability of the
amount of parking and loading space required by DCC Title
18.
B. Off -Street Loading. Every use for which a building is erected
or structurally altered to the extent of increasing the floor
area to equal a minimum floor area required to provide
loading space and which will require the receipt or
distribution of materials or merchandise by truck or similar
vehicle, shall provide off-street loading space on the basis of
minimum requirements as follows:
1. Commercial, industrial and public utility uses which
have a gross floor area of 5,000 square feet or more
shall provide truck loading or unloading berths subject
to the following table:
Sq. Ft. of Floor Area
No. of BerthsRequired
Less than 5,000
0
5,000-30,000
1
30,000-100,000
2
100,000 and Over
3
2. Restaurants, office buildings, hotels, motels, hospitals
and institutions, schools and colleges, public
buildings, recreation or entertainment facilities and
any similar use which has a gross floor area of 30,000
square feet or more shall provide off-street truck
loading or unloading berths subject to the following
table:
Sq. Ft. Floor Area
No. of Berths Required
Less than 30,000
0
30,000-100,000
1
100,000 and Over
2
3. A loading berth shall contain space 10 feet wide, 35
feet long and have a height clearance of 14 feet.
Where the vehicles generally used for loading exceed
SP -13-7, Leading Edge Aviation Page 17
these dimensions, the required length of these berths
shall be increased. (Emphasis added.)
FINDINGS: The staff report questions whether these criteria are applicable because the proposed
outdoor fueling station does not have any true "floor area." The term "floor area" is not defined in
Title 18. The uses listed in the loading berth tables constitute uses enclosed in structures, with the
possible exception of "public utility uses" and "recreation or entertainment facilities" which could
include outdoor space and therefore, theoretically, could require one or more "loading berths."
However, the Hearings Officer finds that in Tight of the nature of the proposed fueling station, rather
than requiring a loading berth it is more appropriate to assure there is sufficient "loading space" for
the fuel trucks that will deliver fuel to the tanks. Section 18.04.030 defines "loading space" as:
* * * an off-street space within a building or on the same lot with a building, having
direct access to a street or alley, for the temporary parking of a commercial vehicle
or truck while loading or unloading merchandise or materials.
As discussed in the findings above, the proposed site plan shows a Targe area on the subject
property for the temporary standing and maneuvering of fuel trucks which would enter and exit the
property via Taxiway A and Taxilane 7. The Hearings Officer finds this area will provide adequate
loading space for the proposed use, therefore satisfying these criteria.
4. If loading space has been provided in connection with
an existing use or is added to an existing use, the
loading space shall not be eliminated if elimination
would result in less space than is required to
adequately handle the needs of the particular use.
FINDINGS: The applicant's proposal would not eliminate any existing loading space.
5. Off-street parking areas used to fulfill the requirements
of DCC Title 18 shall not be used for loading and
unloading operations except during periods of the day
when not required to take care of parking needs.
FINDINGS: The record indicates there are no off-street vehicle parking areas in the vicinity of the
proposed fueling station that would be impacted by any fuel truck unloading and/or fuel tank
loading.
C. Off -Street Parking. Off-street parking spaces shall be
provided and maintained as set forth in DCC 18.116.030 for all
uses in all zoning districts. Such off-street parking spaces
shall be provided at the time a new building is hereafter
erected or enlarged or the use of a building existing on the
effective date of DCC Title 18 is changed.
D. Number of Spaces Required. Off-street parking shall be
provided as follows:
***
SP -13-7, Leading Edge Aviation
Page 18
9. Other uses not specifically listed above shall be
provided with adequate parking as required by the
Planning Director or Hearings Body. The above list
shall be used as a guide for determining requirements
for said other uses.
FINDINGS: Aviation fueling station is not one of the uses specifically listed in this section. The
staff report states, and the Hearings Officer agrees, that the nature of the proposed unmanned
fueling station is such that it would not generate any demand for vehicle parking spaces at the
airport, and therefore no off-street parking spaces are required for the use. As discussed above,
I have found the submitted site plan shows adequate space for the temporary standing and
maneuvering of both aircraft and fuel trucks on the site.
E. General Provisions. Off -Street Parking.
1. More Than One Use on One or More Parcels. In the
event several uses occupy a single structure or parcel
of land, the total requirement for off-street parking
shall be the sum of requirements of the several uses
computed separately.
FINDINGS: As discussed above, the Hearings Officer has found the proposed fueling station
does not require off-street parking and therefore I find this criterion is not applicable.
2. Joint Use of Facilities. The off-street parking
requirements of two or more uses, structures or
parcels of land may be satisfied by the same parking
or loading space used jointly to the extent that it can
be shown by the owners or operators of the uses,
structures or parcels that their operations and parking
needs do not overlap at any point of time. If the uses,
structures or parcels are under separate ownership,
the right to joint use of the parking space must be
evidence by a deed, lease, contract or other
appropriate written document to establish the joint
use.
FINDINGS: The Hearings Officer finds this criterion is not applicable because no joint use
facilities are proposed.
3. Location of Parking Facilities. Off-street parking
spaces for dwellings shall be located on the same lot
with the dwelling. Other required parking spaces shall
be located on the same parcel or another parcel not
farther than 500 feet from the building or use they are
intended to serve, measured in a straight line from the
building in a commercial or industrial zone. Such
parking shall be located in a safe and functional
manner as determined during site plan approval. The
burden of proving the existence of such off -premise
parking arrangements rests upon the applicant.
SP -13-7, Leading Edge Aviation Page 19
4. Use of Parking Facilities. Required parking space shall
be available for the parking of operable passenger
automobiles of residents, customers, patrons and
employees only and shall not be used for the storage
of vehicles or materials or for the parking of trucks
used in conducting the business or used in
conducting the business or use.
FINDINGS: As discussed above, the Hearings Officer has found no off-street parking spaces
are required for the proposed fueling station because the proposed unmanned use would not
generate any demand for vehicle parking spaces. Therefore I find these criteria are not
applicable.
5. Parking, Front Yard. Required parking and loading
spaces for multi -family dwellings or commercial and
industrial uses shall not be located in a required front
yard, except in the Sunriver UUC Business Park (BP)
District and the La Pine UUC Business Park (LPBP)
District and the LaPine UUC Industrial District (LPI),
but such space may be located within a required side
or rear yard.
FINDINGS: The Hearings Officer has found the proposed use does not require off-street
parking, and therefore there will be no parking in a required front yard.
F. Development and Maintenance Standards for Off -Street
Parking Areas. Every parcel of land hereafter used as a public
or private parking area, including commercial parking lots,
shall be developed as follows:
1. Except for parking to serve residential uses, an off-
street parking area for more than five vehicles shall be
effectively screened by a sight obscuring fence when
adjacent to residential uses, unless effectively
screened or buffered by landscaping or structures.
2. Any lighting used to illuminate off-street parking areas
shall be so arranged that it will not project light rays
directly upon any adjoining property in a residential
zone.
3. Groups of more than two parking spaces shall be
located and designed to prevent the need to back
vehicles into a street or right of way other than an
alley.
FINDINGS: The Hearings Officer finds these criteria are not applicable because no off-street
parking areas or spaces are required for the proposed use.
SP -13-7, Leading Edge Aviation
Page 20
4. Areas used for standing and maneuvering of vehicles
shall be paved surfaces adequately maintained for all
weather use and so drained as to contain any flow of
water on the site. An exception may be made to the
paving requirements by the Planning Director or
Hearings Body upon finding that:
a. A high water table in the area necessitates a
permeable surface to reduce surface water
runoff problems; or
b. The subject use is located outside of an
unincorporated community and the proposed
surfacing will be maintained in a manner which
will not create dust problems for neighboring
properties; or
c. The subject use will be in a Rural Industrial
Zone or an Industrial District in an
unincorporated community and dust control
measures will occur on a continuous basis
which will mitigate any adverse impacts on
surrounding properties.
FINDINGS: As discussed above, the submitted site plan shows an area on the proposed
fueling station site for standing and maneuvering of aircraft and fueling trucks. The staff report
states, and the Hearings Officer agrees, that this criterion requires the standing and
maneuvering area on the site to be paved. I further find none of the listed exceptions to
pavement applies to the applicant's proposal. Therefore, I find the applicant will be required as a
condition of approval to pave areas used for standing and maneuvering of aircraft and fuel
trucks, to adequately maintain the paved surfaces for all weather use, and to design and
maintain them so that any water is contained on site.
5. Access aisles shall be of sufficient width for all
vehicular turning and maneuvering.
FINDINGS: The applicant does not propose any new access aisles for the proposed fueling
station. Aircraft would access the site from Taxiway A and the fueling truck would access it from
Taxilane 7. In addition, the submitted site plan shows three existing aircraft tie -downs will be
removed to provide open access from the taxiway to the fueling station. Based on the submitted
site plan and the Hearings Officer's site visit observations, I find these taxiways are of sufficient
width to allow turning and maneuvering by both aircraft and fuel trucks.
6. Service drives to off-street parking areas shall be
designed and constructed to facilitate the flow of
traffic, provide maximum safety of traffic access and
egress and maximum safety of pedestrians and
vehicular traffic on the site. The number of service
drives shall be limited to the minimum that will
accommodate and serve the traffic anticipated.
Service drives shall be clearly and permanently
SP -13-7, Leading Edge Aviation Page 21
marked and defined through the use of rails, fences,
walls or other barriers or markers. Service drives to
drive in establishments shall be designed to avoid
backing movements or other maneuvering within a
street other than an alley.
7. Service drives shall have a minimum vision clearance
area formed by the intersection of the driveway
centerline, the street right of way line and a straight
line joining said lines through points 30 feet from their
intersection.
8. Parking spaces along the outer boundaries of a
parking area shall be contained by a curb or bumper
rail placed to prevent a motor vehicle from extending
over an adjacent property line or a street right of way.
FINDINGS: The Hearings Officer finds these criteria are not applicable because no off-street
parking areas are required for the proposed use.
G. Off -Street Parking Lot Design. All off-street parking lots shall
be designed subject to County standards for stalls and aisles
as set forth in the following drawings and table:
(SEE TABLE 1 AT END OF CHAPTER 18.116)
1. For one row of stalls use "C" + "0" as minimum bay
width.
2. Public alley width may be included as part of
dimension "D," but all parking stalls must be on
private property, off the public right of way.
3. For estimating available parking area, use 300-325
square feet per vehicle for stall, aisle and access
areas.
4. For Targe parking lots exceeding 20 stalls, alternate
rows may be designed for compact cars provided that
the compact stalls do not exceed 30 percent of the
total required stalls. A compact stall shall be eight feet
in width and 17 feet in length with appropriate aisle
width.
FINDINGS: The Hearings Officer finds these criteria are not applicable because no off-street
parking is required for the proposed use.
c. Section 18.116.031, Bicycle Parking
New development and any construction, renovation or alteration of
an existing use requiring a site plan review under DCC Title 18 for
SP -13-7, Leading Edge Aviation Page 22
which planning approval is applied for after the effective date of
Ordinance 93-005 shall comply with the provisions of DCC
18.116.031.
A. Number and Type of Bicycle Parking Spaces Required.
1. General Minimum Standard.
a. All uses that require off-street motor vehicle
parking shall, except as specifically noted,
provide one bicycle parking space for every five
required motor vehicle parking spaces.
FINDINGS: The Hearings Officer finds this criterion is not applicable because I have found the
proposed fueling station does not require any off-street vehicle parking.
For the foregoing reasons, the Hearings Officer finds that with imposition of the conditions of
approval described above the applicant's proposal will satisfy all applicable approval criteria in
the supplementary provisions.
COMPLIANCE WITH SITE PLAN REVIEW REQUIREMENTS
4. Chapter 18.124, Site Plan Review
a. Section 18.124.030, Approval Required
A. No building, grading, parking, land use, sign or other required
permit shall be issued for a use subject to DCC 18.124.030,
nor shall such a use be commenced, enlarged, altered or
changed until a final site plan is approved according to DCC
Title 22, the Uniform Development Procedures Ordinance.
B. The provisions of DCC 18.124.030 shall apply to the
following:
SP -13-7, Leading Edge Aviation
1. All conditional use permits where a site plan is a
condition of approval;
2. Multiple family dwellings with more than three units;
3. All commercial uses that require parking facilities;
4. All industrial uses;
5. All other uses that serve the general public or that
otherwise require parking facilities, including, but not
limited to, landfills, schools, utility facilities, churches,
community buildings, cemeteries, mausoleums,
crematories, airports, parks and recreation facilities
and livestock sales yards; and
Page 23
6. As specified for Flood Plain Zones (FP) and Surface
Mining Impact Area Combining Zones (SMIA).
FINDINGS: The Hearings Officer finds the applicant's proposal requires site plan review and
approval under Paragraph (B)(5) of this section. Although I have found the proposed use does
not require off-street parking, it is a use that has the potential to serve the general public — i.e.,
owners, pilots and passengers of general aviation aircraft operating at Bend Airport which is a
public airport. In addition, the staff report notes that Section 18.76.020(A) of the AS Zone states
any use in that zone and in the AOD is subject to site plan review. The proposal's compliance
with the site plan approval criteria is discussed below. The subject property is located in the AS
Zone and in the AOD.
b. Section 18.124.060, Approval Criteria
Approval of a site plan shall be based on the following criteria:
A. The proposed development shall relate harmoniously to the
natural environment and existing development, minimizing
visual impacts and preserving natural features including
views and topographical features.
FINDINGS: The proposed fueling station would be located within the Bend Airport east of
Taxiway A, south of Taxilane 7, and west of existing hangars. The proposed site is surrounded
by airport -related development. As discussed above, the site is located 350 east of Powell Butte
Highway, a designated rural arterial road. Based on maps in the record and the Hearings
Officer's site visit observations, I find there is little "natural environment" within the airport
property, consisting primarily of grassy areas surrounding the runway and on the east (opposite)
side of the airport property.
The proposed fueling station would consist of two 10 -foot -tall ground -mounted 12,000 -gallon
fuel tanks that would be painted white, and a standing and maneuvering area for aircraft and
fueling trucks. The fuel tanks would be considerably lower in height than the nearby hangars
and therefore would have no effect on existing views. The record indicates, and the Hearings
Officer's site visit observations confirmed, that the topography on and in the vicinity of the
proposed fueling station site is generally level and consequently very little grading will be
required for construction of the fueling station. For these reasons, I find the proposed fueling
station will relate harmoniously to the natural environment and existing development, will
minimize visual impacts, and will preserve vies and topographical features, thereby satisfying
this criterion.
B. The landscape and existing topography shall be preserved to
the greatest extent possible, considering development
constraints and suitability of the landscape and topography.
Preserved trees and shrubs shall be protected.
FINDINGS: As discussed in the findings immediately above, the Hearings Officer has found
that because of the generally level topography, construction of the proposed fueling station will
require very little grading and therefore the existing topography will be preserved. Based on my
site visit observations there are no trees on the site to be preserved or protected. Therefore, I
find the applicant's proposal satisfies this criterion.
SP -13-7, Leading Edge Aviation Page 24
C. The site plan shall be designed to provide a safe
environment, while offering appropriate opportunities for
privacy and transition from public to private spaces.
FINDINGS: The proposed fueling station is in an already developed area of the airport, located
between Taxiway A and existing hangars. The site is large enough to provide for on-site
standing and maneuvering areas for aircraft and fueling trucks. As discussed above, at ten feet
in height the proposed fuel tanks will not penetrate any imaginary airport surfaces.
The Hearings Officer finds the primary safety issue presented by the applicant's proposal is the
potential for fires or accidental fuel leaks originating from the fuel tanks. At the public hearing,
the applicant's representative Matt Rogers from Century West Engineering testified that the fuel
tanks are designed and built to meet rigorous fire safety standards and to contain any fuel leaks
within or adjacent to the tanks themselves. I observed on my site visit that there is an existing
fire hydrant relatively close to the proposed fueling station site, although I am aware that
materials in addition to water may be required to suppress a gasoline fire. In his comments on
the applicant's proposal, Bend Fire Chief Larry Medina stated in relevant part:
"An application shall be made to the Office of State Fire Marshall to install
flammable/combustible liquid aboveground tank(s) accompanied by two sets of
plans when installing aboveground tanks over 1000 gallons in either individual or
aggregate quantities."
The staff report recommends, and the Hearings Officer agrees, that to assure a safe
environment the applicant will be required as a condition of approval to meet all applicable
safety requirements of the Oregon Fire Marshall and the FAA for installation and operation of
on -airport fueling stations.
D. When appropriate, the site plan shall provide for the special
needs of disabled persons, such as ramps for wheelchairs
and Braille signs.
FINDINGS: The Hearings Officer finds that in Tight of the nature of the proposed use it is
unlikely it would be require any accommodations for disabled persons. Nevertheless, I agree
with staff that the Building Division will notify the applicant of any accessibility requirements at
the time of building permit review.
E. The location and number of points of access to the site,
interior circulation patterns, separations between pedestrians
and moving and parked vehicles, and the arrangement of
parking areas in relation to buildings and structures shall be
harmonious with proposed and neighboring buildings and
structures.
FINDINGS: Because of the nature of the proposed use, the Hearings Officer finds it will have very
limited use by pedestrians, likely consisting of pilots walking between their aircraft and the fuel
tanks. Consequently I find no special design features or precautions are required to separate
pedestrians and vehicles beyond those already in place and practiced on airport property to
separate pedestrians from operating aircraft. As discussed above, aircraft will access the fueling
station from Taxiway A and fuel trucks will access the station from Taxilane 7 which connects to an
airport frontage road and thereafter to the Powell Butte Highway. I have found the proposed site
SP -13-7, Leading Edge Aviation Page 25
will provide adequate space for on-site standing and maneuvering of aircraft and fuel trucks. For
these reasons, I find the applicant's proposal satisfies this criterion.
F. Surface drainage system shall be designed to prevent
adverse impacts on neighboring properties, streets or
surface and subsurface water quality.
FINDINGS: The proposed fueling station site is approximately 6,500 square feet in size,
relatively level, and currently is composed primarily of pervious surfaces. However, the majority
of the site will be paved and therefore storm water will need to be directed to the remaining
pervious surfaces or otherwise contained on the site. The Hearings Officer finds that as a
condition of approval the applicant will be required to provide to the Planning Division a grading
and drainage plan that demonstrates surface water drainage will be retained on site.
G. Areas, structures and facilities for storage, machinery and
equipment services (mail, refuse, utility wires, and the like),
loading and parking and similar accessory structures shall be
designed, located and buffered or screened to minimize
adverse impacts on the site and neighboring properties.
FINDINGS: The proposed fuel storage tanks will be ground -mounted, 10 feet tall, and painted
white. The on-site standing and maneuvering area on the subject property will be paved. The
applicant's proposal does not include any other structures, areas or facilities for storage. Based
on the Hearings Officer's site visit observations, I find the fuel tanks will be screened from view
from Powell Butte Highway and the residential uses west of the highway by the existing hangars
on the west side of the subject property. For these reasons, I find the applicant's proposal
satisfies this criterion.
H. All aboveground utility installations shall be located to
minimize adverse visual impacts on the site and neighboring
properties.
FINDINGS: The applicant's proposal does not include installation of any above -ground utilities
such as power lines. However, assuming for purposes of discussion that the proposed fuel
tanks constitute "aboveground utility installations," the Hearings Officer finds they will minimize
adverse visual impacts by their relatively small size, paint color, and screening by adjacent
hangars.
I. Specific criteria are outlined for each zone and shall be a
required part of the site plan (e.g. lot setbacks, etc.)
FINDINGS: The proposal's compliance with the standards in the AD and AS Zones is
discussed in the findings above.
J. All exterior lighting shall be shielded so that direct light does
not project off-site.
FINDINGS: The applicant has not proposed exterior lighting. Nevertheless, the staff report
recommends, and the Hearings Officer concurs, that the applicant be subject to a condition of
approval requiring that any exterior lighting at the proposed fueling station site be shielded so
that direct light does not project off-site.
SP -13-7, Leading Edge Aviation Page 26
b. Section 18.124.070, Required Minimum Standards
* * *
B. Required Landscaped Areas.
1. The following landscape requirements are established
for multi -family, commercial and industrial
developments. subject to site plan approval:
a. A minimum of 15 percent of the lot area shall be
landscaped.
b. All areas subject to the final site plan and not
otherwise improved shall be landscaped.
(Emphasis added.)
FINDINGS: The staff report questions whether these landscape standards apply to the
applicant's proposal since it is an aviation -related use. The Hearings Officer agrees with staff
that the proposal is neither multi -family nor industrial development. Nevertheless, I find it is a
"commercial" development. Although Title 18 does not define "commercial development,"
Section 18.04.030 defines "commercial use" as:
* * * the use of land primarily for the retail sale of products or services, including
offices. It does not include factories, warehouses, freight terminals or wholesale
distribution centers.
The Hearings Officer finds "commercial use" is the functional equivalent of "commercial
development," and therefore this definition is relevant to application of Paragraph (B) to the
applicant's proposal. The record indicates that aircraft owners/pilots will purchase fuel at the
proposed fueling station through a self -serve system which will allow them to use some type of
credit card. This operation clearly constitutes "retail sale of products." Therefore, I find the
landscape requirements in this section technically are applicable.
The applicant's site plan does not propose any landscaping of the fueling station site. However,
it appears from the submitted site plan that there would be no unimproved areas on the site —
i.e., the entire site would be paved, including the location of the fuel tanks and the aircraft and
vehicle standing and maneuvering areas. The Hearings Officer finds that to assure compliance
with this landscaping criterion, the applicant will be required as a condition of approval to submit
either written documentation that there will be no unpaved areas on the fueling station site, or, if
there will be unpaved areas, a revised site plan showing the minimum landscaping required by
this section and the means for watering and maintaining this landscaping.
2. In addition to the requirement of DCC
18.124.070(B)(1)(a), the following landscape
requirements shall apply to parking and loading areas:
a. A parking or loading area shall be required to
be improved with defined landscaped areas
SP -13-7, Leading Edge Aviation Page 27
totaling no Tess than 25 square feet per parking
space.
b. In addition to the landscaping required by DCC
18.124.070(8)(2){a), a parking or loading area
shall be separated from any lot line adjacent to
a roadway by a landscaped strip at least 10 feet
in width, and from any other lot line by a
landscaped strip at least five feet in width.
c. A landscaped strip separating a parking or
loading area from a street shall contain:
1) Trees spaced as appropriate to the
species, not to exceed 35 feet apart on
the average.
2) Low shrubs not to reach a height greater
than three feet zero inches, spaced no
more than eight feet apart on the
average.
3) Vegetative ground cover.
3. Landscaping in a parking or loading area shall be
located in defined landscaped areas which are
uniformly distributed throughout the parking or
loading area.
4. The landscaping in a parking area shall have a width of
not less than five feet.
5. Provision shall be made for watering planting areas
where such care is required.
6. Required landscaping shall be continuously
maintained and kept alive and attractive.
7. Maximum height of tree species shall be considered
when planting under overhead utility lines.
FINDINGS: The Hearings Officer finds these landscaping standards are not applicable to the
applicant's proposal because I have found no on-site parking or loading areas are required.
C. Nonmotorized Access.
1. Bicycle Parking. The development shall provide the
number and type of bicycle parking facilities as
required in DCC 18.116.031 and 18.116.035. The
location and design of bicycle parking facilities shall
be indicated on the site plan.
SP -13-7, Leading Edge Aviation Page 28
FINDINGS: As discussed in the findings above, the Hearings Officer has found the applicant's
proposal does not require any bicycle parking because no off-street vehicle parking is required.
2. Pedestrian Access and Circulation:
a. Internal pedestrian circulation shall be provided
in new commercial, office and multi family
residential developments through the clustering
of buildings, construction of hard surface
pedestrian walkways, and similar techniques.
FINDINGS: As discussed above, the Hearings Officer has found the applicant's proposed
fueling station constitutes a commercial use because it involves retail sales of aviation fuel.
However, I also have found the use will not generate pedestrian traffic other than pilots walking
between their aircraft and the fuel tanks. The proposed aircraft standing and maneuvering areas
will be paved surfaces that will permit safe on-site circulation for the few pedestrians who will
use the site. For these reasons I find the applicant's proposal satisfies this criterion.
b. Pedestrian walkways shall connect building
entrances to one another and from building
entrances to public streets and existing or
planned transit facilities. On site walkways shall
connect with walkways, sidewalks, bikeways,
and other pedestrian or bicycle connections on
adjacent properties planned or used for
commercial, multi family, public or park use.
c. Walkways shall be at least five feet in paved
unobstructed width. Walkways which border
parking spaces shall be at least seven feet wide
unless concrete bumpers or curbing and
landscaping or other similar improvements are
provided which prevent parked vehicles from
obstructing the walkway. Walkways shall be as
direct as possible.
d. Driveway crossings by walkways shall be
minimized. Where the walkway system crosses
driveways, parking areas and loading areas, the
walkway must be clearly identifiable through
the use of elevation changes, speed bumps, a
different paving material or other similar
method.
e. To comply with the Americans with Disabilities
Act, the primary building entrance and any
walkway that connects a transit stop to building
entrances shall have a maximum slope of five
percent. Walkways up to eight percent slope
SP -13-7, Leading Edge Aviation Page 29
are permitted, but are treated as ramps with
special standards for railings and landings
FINDINGS: The Hearings Officer finds these criteria are not applicable because the proposed
fueling station will be located entirely outside any structures and consequently there will be no
"building entrance" to which a pedestrian walkway would be required to connect.
V. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby
APPROVES the applicant's site plan for the proposed aviation fueling station, SUBJECT TO
THE FOLLOWING CONDITIONS OF APPROVAL:
This approval is based upon the submitted burden of proof statement and exhibits, site
plan, and written and oral testimony. Any substantial change to the approved site plan
will require a new land use application and approval.
PRIOR TO ISSUANCE OF BUILDING PERMITS:
2. The applicant/owner shall submit to the Planning Division either written documentation
that there will be no unimproved (unpaved) areas on the fueling station site, or, if there
will be unimproved (unpaved) areas, a revised site plan showing the minimum required
landscaping and the means for watering and maintaining this landscaping.
3. The applicant/owner shall submit a revised site plan showing:
a. the distance between the fuel tanks and the nearest hangar to the west;
b. a grading and drainage plan that demonstrates surface water drainage will be
contained on site; and
c. if there are unimproved (unpaved) areas on the fueling station site, the location
and types of minimum required landscaping and the means for watering and
maintaining this landscaping.
4. The applicant/owner shall sign and record in the Deschutes County Book of Records a
Declaration of Anticipated Noise declaring that the applicant and its successors will not
now, or in the future, complain about the allowed airport activities at the Bend Airport.
5. The applicant/owner shall submit to the Planning Division written documentation of final
FAA approval of the FAA Form 7460-1 for the fueling station.
6. The applicant/owner shall submit to the Planning Division written documentation of final
approval of the fueling station from the Oregon Department of Aviation.
WITH CONSTRUCTION:
7 The applicant/owner shall pave all areas on the fueling station site used for standing and
maneuvering of aircraft and other vehicles.
SP -13-7, Leading Edge Aviation Page 30
8. The applicant/owner shall install any outdoor lighting in compliance with the applicable
provisions of Chapter 15.10 of the Deschutes County Code. Such lighting shall be
shielded so that it does not project lighting directly onto the runway or taxiway or into
existing airport approach surfaces.
9. The applicant/owner shall install the fuel tanks to meet all applicable safety requirements
of the Oregon Fire Marshall and the FAA for installation and operation of on -airport
fueling stations.
AT ALL TIMES:
10. The applicant/owner shall maintained all paved areas on the fueling station site for all
weather use and assure that drainage of surface water is retained on site.
11. The applicant/owner shall install any signs so that they comply with the provisions of the
county's sign ordinance, Chapter 15.08 of the Deschutes County Code.
Dated this 18th day of July, 2013. Mailed this 19th day of July, 2013.
Karen H. Green, Hearings Officer
THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY
APPEALED.
SP -13-7, Leading Edge Aviation
Page 31
Community Development Department
Planning Division Building Safety Division Environmental Soils Division
P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005
(541)388-6575 FAX (541)385-1764
http://www,co.deschutes.or.us/cdd/
CERTIFICATE OF MAILING
FILE NUMBER: SP -13-7
DOCUMENT/S MAILED: Hearings Officer's Decision
MAP/TAX LOT NUMBER: 17-13-20, as Tax Lot 200
I certify that on the 19th day of July, 2013, the attached notice(s)/report(s), dated
July 19, 2013, was/were mailed by first class mail, postage prepaid, to the person(s) and
address(es) set forth on the attached list.
Dated this 19th day of July, 2013.
COMMUNITY DEVELOPMENT DEPARTMENT
By: Sher Buckner
Leading Edge Aviation
63048 Powell Butte Highway
Bend, OR 97701
City of Bend
710 NW Wall Street
Bend, OR 97701
Edward J. Elkins
63613 OB Riley Rd.
Bend, OR 97701
Sandra Larsen
Oregon Department of Aviation
3040 25th Street, SE
Salem, OR 97302-1125
Sharon R. Smith
Bryant, Lovlien & Jarvis, PC
591 SW Mill View Way
Bend, OR 97702
Michael H. McGean
Francis Hansen & Martin LLP
1148 NW Hill Street
Bend, OR 97701-1914
Gary Judd
City of Bend
710 NW Wall Street
Bend, OR 97701
Matt Rogers, P.E..
Century West Engineering.
1020 SW Emkay Drive, Suite 100
Bend , OR 97702
Hearings Officer Karen Green
i
Quality Services Performed with Pride